Carl Bernofsky v. Tulane University
 
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"There is no basis for the plaintiff's suggestion that the undersigned's impartiality might reasonably be questioned..."

Lawsuit Against Tulane University for Retaliation and Defamation

Order and Reasons

(Case No. 98-1792 c/w 98-2102, Docket No. 81, April 18, 2000)

The day after the Pre-Trial Order was signed by counsel for Bernofsky and Tulane, Judge Berrigan postponed the trial, giving Tulane a second opportunity to file a Motion for Summary Judgment.  Upon receiving that motion, Judge Berrigan promptly ruled in favor of Tulane, dismissing Bernofsky's every cause of action and denying him a trial on the merits.  She also taxed him for Tulane's legal costs.  In her analysis, which follows below, Judge Berrigan not only faithfully adheres to Tulane's arguments, she uses the opportunity to promote Tulane's earlier positions on Bernofsky's 1995 lawsuit.  Judge Berrigan's unfailing acceptance of defendant's views is apparently a measure of her consummate loyalty.  Nevertheless, Tulane's positions remain strongly disputed, and a trial on the merits is clearly warranted.
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

 
DR. CARL BERNOFSKY CIVIL ACTION
   
VERSUS NO. 98-1792 c/w
  98-2102
   
ADMINISTRATORS OF THE TULANE SECTION "C"
EDUCATIONAL FUND  
 

ORDER AND REASONS

This matter comes before the Court on motion for summary judgment filed by the defendant, the Administrators of the Tulane Educational Fund ("Tulane") and motions in limine. Having considered the record, the memoranda of counsel and the law, the Court finds that summary judgment is appropriate for the following reasons.

The plaintiff, Dr. Carl Bernofsky ("Bernofsky"), formerly worked at Tulane University Medical School. His original suit for race and age discrimination as well as various state law claims against Tulane was dismissed on summary judgment and affirmed on appeal. Bernofsky v. Tulane University Medical School, 962 F.Supp. 895, 897 (E.D.La. 1997), aff'd, 136 F.3d 137 (5th Cir. 1998). He now sues Tulane for retaliation under 42 U.S.C. § 1981 and Title VII and for retaliation and defamation under Louisiana state law in conjunction with requests for references on employment applications.

A review of the factual events leading up to the plaintiff's termination are necessary to place the current claims in context [1].


1.  These factual findings are drawn from pleadings filed in Dr. Bernofsky's underlying lawsuit, Civil Action 95-358 "C". References to this first suit shall begin with "Civ. Act. 95-358." All other undesignated record document references are to this immediate record.

Bernofsky was a Research Professor in the Biochemistry Department at Tulane Medical School. It is undisputed that as a research professor, Bernofsky was responsible for raising the bulk of his own salary through research grants. From his arrival at Tulane in 1975 until 1986, he was apparently generally successful. From 1986 forward, however, Tulane provided salary support ranging from roughly 70% - 100% a year. In the 1993-1994 cycle, Tulane provided 100% of Bernofsky's salary. (Civ. Act. 95-358, Rec. Doc. 55, Exh. D). In exchange for such salary support, a research professor is supposed to teach and participate in other departmental activities.

In March, 1994, the Department Chairman, Dr. Jim D. Karam ("Karam") advised the Dean of the School of Medicine that he had "serious reservations" about recommending Bernofsky for reappointment in the 1994-1995 academic year. (Civ. Act. 95-358, Rec. Doc. 55, Exh. F). Karam cited Bernofsky's "minimal participation in Departmental duties, his general lack of collegiality, and his sub-average contribution to the intellectual environment in the Department" as well as his ''below expectations" performance in science. Karam also pointed out that the Department had been paying most of Bernofsky's salary "yet he has done little in return to contribute to our intellectual growth or to a positive atmosphere." In May, 1994, Karam appointed a Faculty Review Committee ("Committee''), consisting of the former department chairman, Professor Rune L. Stjernholm ("Stjernholm"), Emeritus Professor Richard H. Steele ("Steele") and a third professor, to evaluate Bernofsky's performance. (Civ. Act. 95-358, Rec. Doc. 55, Exh. D). In that evaluation, the Committee noted the salary support from Tulane, noted that Bernofsky has a "very light teaching load"; that he "does not participate or is exempt" from all other course related activities and that he did not participate in any of the departmental committees. With respect to his research, the Committee found that from 1958 through 1986, Bernofsky's published work had been in "outstanding referral journals" but that since 1986, his research had been published in only obscure journals. The Committee also stated that his then active grants were all due to terminate shortly and that he had been unsuccessful in seeking new funding, despite a number of applications. The Committee noted that "70% of Dr. Bernofsky's effort is now spent on writing, revising or resubmitting grant proposals in an endless manner." They concluded that his "research activities and accomplishment are not competitive."

After receiving this report, Karam issued a memorandum to Bernofsky, indicating that he would recommend Bernofsky for reappointment as a Research Professor, but with certain stipulations. (Civ. Act. 95-358, Rec. Doc. 55, Exh. E). Karam provided a copy of the Committee Report with his memorandum. He noted Bernofsky's obligation to sustain his own salary through grant funding and noted that Tulane had been paying a heavy percentage of his salary for a number of years. Karam was critical of Bernofsky's "modest" research productivity; his "minimal" service to the Department; his unwillingness to teach; and his reclusiveness and lack of scholarly interaction with colleagues. He rated his overall performance for the last three years as "largely unsatisfactory" and gave him 10 months to show "significant improvement." The thrust of the requirements were that Bernofsky had to generate funding for his salary and accept teaching responsibilities. According to Karam's memo, Bernofsky's approved Tulane salary for 1993-94 had been $65,453. Bernofsky declined to teach under the terms set forth by Karam. In a memorandum of August 16, 1994, Karam advised Bernofsky that he would provide "one more chance" for him to secure grant support for his research and salary, placing him on a 6-month termination notice, which would expire in February, 1995. (Civ. Act. 95-358, Rec. Doc. 55, Exh. O). In December, Karam once again advised Bernofsky of the February deadline for grant funding to cover his salary. (Civ. Act. 95-358, Rec. Doc. 55, Exh. P). On January 31, 1995, Karam formally notified Bernofsky of his termination, effective February 28, 1995. (Civ. Act. 95-358, Rec. Doc. 55, Exh. Q).

Also on January 31, 1995, Bernofsky filed his original lawsuit, alleging that his imminent termination was discriminatory. (Civ. Act. 95-358, Doc. 1). The plaintiff requested injunctive relief. (Civ. Act. 95-358, Doc. 3). The Court ordered the parties to enter into settlement discussions and likewise ordered that "the status quo" be maintained with respect to Bernofsky's employment, pending those discussions. (Civ. Act. 95-358, Doc. 13). Extensive settlement discussions followed, but were terminated unsuccessfully in late March, 1995. (Civ. Act. 95-358, Docs. 16, 18, 19). Bernofsky's employment with Tulane ended as of April 21, 1995. In June, 1995, Karam notified the Dean of the School of Medicine, Dr. James Corrigan, that "Termination of his position is due to lack of current research funding by the faculty member." (Civ. Act. 95-358, Doc. 55, Exh. R).

In February, 1995, while settlement discussions were ongoing, Bernofsky was notified by the United States Department of Air Force that a grant proposal he had submitted was going to be recommended for approval. The letter noted that funding had not yet been allocated and a contract would be necessary. (Rec. Doc. 77, Exh. 41). In Bernofsky's proposed budget to the Air Force, he identified his first year salary from the grant as $13,679. (Rec. Doc. 77, Exh. 47). The total proposed grant for the first year was approximately $125,000 and approximately $126,000 for the second year, if renewed. It is undisputed that in mid-February, Tulane was aware of the Air Force's action. (Rec. Doc. 77, Exh. 44).

In his initial lawsuit and subsequently amended lawsuit, filed January 31 and February 27, 1995, respectively, Bernofsky challenged his termination as being discriminatory. (Civ. Act. No. 95-358, Rec. Docs. 1 & 14). While his suit named Tulane University Medical School as the defendant, the only person identified as responsible for his complaints was Karam. The allegations against Karam were pervasive, specific and personal. Bernofsky alleged that immediately after Karam's appointment as Department Chairman, he "interfered and discriminated against plaintiff in a myriad of ways", including refusing to provide space for a machine Bernofsky wanted [2]; that throughout 1994, Karam "harassed plaintiff" about additional new funding and that Karam gave "false and misleading information" to possible funding sources making it "impossible" for the plaintiff to secure funds before his 1994 grants expired [3] ; that Karam "devised a scheme to produce an unflattering evaluation of plaintiff" [4]; and that Karam "interfered" with the plaintiff's staff and "forced" their resignations [5]. Finally, Bernofsky alleged that Karam "elected to terminate his appointment for 1995, refused to reappoint him for 1996, and refused to put his name up for conversion to a tenured position." [6] The basis of Karam's decisions was allegedly anti-Semitism and age discrimination [7].


2.  Civ. Act. 95-358, Doc. 14, Para. 30-31.

3.  Civ. Act. 95-358, Doc. 14, Para. 36.

4.  Civ. Act. 95-358, Doc. 14, Para. 37.

5.  Civ. Act. 95-358, Doc. 14, Para. 38-39.

6.  Civ. Act. 95-358, Doc. 14, Para. 49.

7.  Civ. Act. 95-358, Doc. 14, Para. 50-51.

While this lawsuit was pending at the district court level, Bernofsky applied to various other institutions for employment. In his applications, he apparently identified Professors Karam, Stjernholm and Steele as his references. Karam, of course, is the Department Chairman who terminated Bernofsky and who at that point in time bore the entire brunt of Bernofsky's active allegations of discriminatory treatment. Stjernholm was the chairman of the Faculty Committee whose unflattering critique of Bernofsky was openly relied upon by Karam in putting Bernofsky on his initial probationary period prior to termination. Steele was the second of the three members of that Faculty Committee. Bernofsky listed each of these individuals as references without requesting their permission or even notifying them that he had done so.

The focus of this lawsuit and these motions is the defendant's responses to two requests for recommendations from two universities to which the plaintiff had applied for employment after his termination from Tulane. It is undisputed that with regard to the first university, University of Houston ("UH"), the Tulane professors responded by referring the inquiry to John Beal ("Beal"), in-house counsel for Tulane. Beal wrote Dr. Ira Wolinsky ("Wolinsky") of the University of Houston a letter on February 21, 1997. That letter provided as follows:
You recently sent letters to Dr. Jim Karam, the Chairman of the Department of Biochemistry, as well as Dr. Steele and Dr. Stjernholm in that department concerning Dr. Karl Bernofsky.

I have directed Dr. Karam that they should not respond to any request relative to Dr. Bernofsky because of pending litigation brought by Dr. Bernofsky against Dr. Karam personally and against the University.

I can confirm that Dr. Bernofsky was a research professor at Tulane whose position was eliminated because Dr. Bernofsky no longer had any research funds to support his position. His dismissal was not based upon any performance issues, but was strictly a financial decision due to lack of research funds.

Lack of a response from Dr. Karam, Dr. Steele or Dr. Stjernholm personally should not indicate any negative information relative to Dr. Bernofsky, but is necessitated because of the pending litigation.

Bernofsky learned about this letter in March 1997. Thereafter, he contacted Wilbur Campbell ("Campbell") with Michigan Technological University ("MTU"), who sent letters requesting references from Tulane with no response. The plaintiff also complains in general that he has applied to 50 potential university employers with no response because of Tulane's retaliation [8].


8.  The plaintiff's opposition does not discuss these 50 other applications in any detail, which indicates to the Court that he is not pursuing claims based on them.

Retaliation

The plaintiff alleges that the Beal letter to Wolinsky and Tulane's silence in response to the inquiry from Campbell were retaliatory under federal and state law. With respect to the state law claim, Tulane argues that certain legislative amendments to Louisiana's anti-discrimination laws in 1997 effectively deleted, presumably inadvertently, any state claim based on retaliation. Tulane also argues that if such a claim exists statutorily, it has prescribed since Bernofsky did not challenge the responses as retaliatory until he amended his petition, over a year after learning of the Beal letter. The plaintiff's original petition simply alleged the Beal letter was defamatory.

The Court will assume for purposes of this motion, that Bernofsky's state law claim of retaliation survive these objections and move to the substantive merit of the claim [9].


9.  Since the Court concludes the claim does not have substantive merit, it prefers to rule on that basis rather than upon a procedural or statutory bar.

The parties appear to agree that in order to establish a prima facie claim of retaliation under Title VII, Section 1981 and Louisiana law, the plaintiff must show: (1) the employee engaged in activity protected by Title VII; (2) the employer took adverse employment action against the employee; and (3) a causal connection between the protected activity and the adverse employment action. Burger v. Central Apartment Management, Inc., 168 F.3d 875, 878 (5th Cir. 1999); Mattern v. Eastman Kodak Co., 104 F.3d 702, 705 (5th Cir.), cert. denied, 522 U.S. 932 (1997). If a prima facie case is shown, an inference of retaliation is established. The burden of proof is shifted to the defendant, who must articulate a legitimate nondiscriminatory reason for the challenged employment action. Shackelford v. Deloitte & Touche. L.L.P., 190 F.3d 398, 408 (5th Cir. 1999). If the defendant introduces evidence which, if true, would permit the conclusion that the adverse employment action was nondiscriminatory, the inference of the prima facie case disappears and the focus shifts to the question of whether the defendant unlawfully retaliated against the plaintiff. Long v. Eastfield College, 88 F.3d 300, 305, fn. 4 (5th Cir. 1996). Summary judgment is appropriate unless the plaintiff proves that the defendant's explanation is pretextual. Shacklford, 190 F.3d at 408 [10].


10.  If there is close timing between the protected activity and the adverse employment action, the employer must offer a legitimate, nondiscriminatory reason that explains the adverse action and the timing. Id., Here, the reference issue arose over two years after the lawsuit had been filed.

A plaintiff may avoid summary judgment only if the evidence, taken as a whole: (1) creates a fact issue as to whether the employer's stated reasons was not what actually motivated it; and (2) creates a reasonable inference that race was a determinative factor in the challenged actions. The plaintiff must present evidence sufficient to create a reasonable inference of discriminatory intent. Grimes v. Texas Dept. of Mental Health & Mental Retardation, 102 F.3d 137, 141 (5th Cir. 1996).

The ultimate issue in an unlawful retaliation case is whether the defendant discriminated against the plaintiff because the plaintiff engaged in protected activity. Long, 88 F.3d 300 (5th Cir. 1996). In order to ultimately prevail in a retaliation claim, the plaintiff must show that the protected conduct was a "but for" cause of the adverse employment action. Scrivner v. Socorro Independent School District, 169 F.3d 969 (5th Cir. 1999). "In other words, even if a plaintiff's protected conduct is a substantial element in a defendant's decision to terminate an employee, no liability for unlawful retaliation arises if the employee would have been terminated even in the absence of the protected conduct." Long, 88 F.3d at 305, fn. 4. See also: Casarez v. Burlington Northern/Santa Fe Co., 193 F.3d 334 (5th Cir. 1999) [11].


11.  The standard for establishing the causal link in the prima facie case is less stringent. Long, 88 F.3d at 305, fn. 4. The Second Circuit in Sarno v. Douglas Elliman-Gibbons & Ives. Inc., 183 F.3d 155, 160 (2d Cir. 1999), indicated that the employee must show that the statements "caused or contributed to the rejection by the prospective employer" with regard to the prima facie case but did not, as suggested by the plaintiff, establish that lesser causation governed the ultimate causation issue.

Tulane does not dispute ex-employee Bernofsky's standing to sue for retaliation under Robinson v. Shell Oil Co., 519 U.S. 337 (1997), and admits that the Fifth Circuit has not addressed whether or under what circumstances a negative reference would qualify as an adverse employment decision. Tulane first argues that a negative reference alone does not constitute an adverse employment action and that, in any event, Bernofsky would have to show that he was not employed by the prospective employer because of the negative reference or silence. Bernofsky argues in opposition that the dissemination of a negative reference with discriminatory intent, not the non-hiring by the prospective employer, qualifies as an adverse employment action, relying on Hashimoto v. Dalton, (9th Cir. 1999).

The Fifth Circuit "has analyzed the 'adverse employment action' element in a stricter sense than some other circuits." Burger, 168 F.3d at 878. The Fifth Circuit holds that the requirement is met with only "ultimate employment decisions, not ... every decision made by employers that arguably might have some tangential effect upon those ultimate decisions." Mattern, 104 F.3d at 707.
To hold otherwise would be to expand the definition of "adverse employment action" to include events such as disciplinary filings, supervisor's reprimands, and even poor performance by the employee--anything which might jeopardize employment in the future. Such expansion is not warranted.
Mattern, 104 F.3d at 708 (emphasis added). In Mattern, the Fifth Circuit identified ultimate employment decisions to include hiring, granting leave, discharging, promoting and compensating. Mattern, 104 F.3d at 706-707.

The Fifth Circuit recently acknowledged that its narrow view of what constitutes an adverse employment decision is the minority view throughout the country. Burger, 168 F.3d at 877, fn 3. Our sister circuit, the Eleventh, has specifically rejected the Fifth Circuit view as being "inconsistent with the plain language" of the statute. Wideman v. Wal-Mart Stores, Inc., 141 F.3d 1453, 1456 (llth Cir. 1998). In so doing, the Eleventh Circuit joined the First, Ninth and Tenth Circuits in finding that retaliatory discrimination extends to adverse decisions that do not rise to ultimate employment decisions. 141 F.3d at 1455-1456. This Court for one would welcome a revisiting of the issue by the Fifth Circuit. See Mattern, (Dennis, J. dissenting).

The Fifth Circuit would require, at a minimum, that an adverse employment action must involve some determinative negative employment impact on the plaintiff. Therefore, Tulane's letter or silence could not constitute an ultimate employment decision if it affected no other employment decision. Being bound by Fifth Circuit jurisprudence, this Court concludes that the relevant adverse employment action here is the prospective employer's failure to hire, not the mere issuance of a negative reference letter or silence on the part of the former employer standing alone.

Again, in light of the Fifth Circuit jurisprudence, a formidable issue in this case is whether the issuance of the Beal reference letter to Wolinsky or Tulane's silence in response to Campbell's request was a determinative factor in the failure of the University of Houston or Michigan Technological University to hire Bernofsky.

It is undisputed that Bernofsky can not show that any of the universities to which he applied either had an open position or were at that time hiring. Bernofsky argues that:
Tulane argues ... that funding was integral to Bernofsky's ability to secure another position and implies that his lack of grant funding was a basis of his unsuccessful job search. This attempt to deflect blame from itself is negated by the fact that Bernofsky only applied for administrative and teaching positions for which he deemed himself qualified. He did not apply for any purely research position.
(Rec. Doc. 77, p. 46). Therefore, any issue raised by Bernofsky regarding the actual amount of Air Force funds, if any, he had at the time of termination would be irrelevant since funding was not a consideration in the positions sought. Bernofsky agrees that both contacts at the two subject universities were friends and aware of his good reputation before sending the letters of request to Tulane.

The plaintiff presents deposition testimony from the plaintiff's friends at the two universities who testified that they wanted to help Bernofsky. Wolinsky testified that he anticipated a position opening soon at the University of Houston due to the anticipated departure of another faculty member. Wolinsky also testified he was "keeping my eyes open" and anticipated introducing Bernofsky to other people on campus who might have positions that he "might" qualify for. (Rec. Doc. 72, Exh. D, p. 28). Wolinsky testified that he could not have gone further in helping Bernofsky upon learning of the pending litigation. Wolinsky also testified to his concern about Bernofsky's veracity raised by the letter's statement that his position was eliminated due to a lack of research funds, contrary to Bernofsky's curriculum vitae. Campbell testified that there was no specific search going on for new faculty but that he thought there was a "possibility" Bernofsky could be hired in a research position. Campbell testified to his inability to proceed with his inquiry due to the lack of references from Tulane. However, Bernofsky offers no proof that an actual position was available or would have been created for Bernofsky "but for" the reference or lack thereof, or that the reference or lack thereof was a determinative factor in his not being hired.

Even assuming, for purposes of the motion and despite the Fifth Circuit requirements, that the reference letter and/or Tulane's silence could be construed to have adversely impacted the two universities' "ultimate employment decision" to not hire Bernofsky, the defendant has offered a legitimate nondiscriminatory reason for the action it took. The defendant claims the letter to Wolinsky was substantially accurate and was in response to an inquiry on behalf of Bernofsky. Furthermore, the letter disavowed any negative inferences as to Bernofsky's performance and identified lack of funding as the sole reason for dismissal, even though performance issues did play a part in Bernofsky's termination. With respect to the failure to respond to Campbell's inquiries, Tulane explains this as simple inadvertence and not a deliberate silence. In light of all the evidence, the Court is convinced that these explanations are valid. It is at this juncture where this Court finds that the plaintiff's claim collapses, even assuming it has survived the procedural and substantive hurdles already encountered.

With respect to the Beal letter, the plaintiff does not attack the letter as a whole, but rather two specific statements in the letter which the plaintiff claims were retaliatory - one, that Bernofsky had pending litigation "against Dr. Karam personally" and two, that Bernofsky's position at Tulane was eliminated because Bernofsky no longer had "any" research funds to support his position. The plaintiff claims neither of these statements was in fact true, ergo they were retaliatory.

The Court finds that the statements were substantially true, and even if technically inaccurate, they were not retaliatory. With regard to the reference to Karam, as pointed out at the outset of this opinion, even though Bernofsky had named Tulane as the actual defendant in the underlying litigation, the content of the accusations were directly solely at Karam. Bernofsky accused Karam of harassment, dispersing false information and scheming against him. Bernofsky blamed his termination on Karam and alleged that Karam took all these actions because he was anti-Semitic and prejudiced against older people. As Beal explained, "the target of the lawsuits is certainly Dr. Karam. The individual he alleges committed the wrongful acts is Dr. Karam. While he has not named Dr. Karam, he certainly has targeted Dr. Karam." (Rec. Doc. 72, Exh. C, p. 11). Consequently, in explaining to Wolinsky why he had instructed Karam not to respond, Beal was substantially accurate in opining that the litigation was against the university and also against Karam "personally."

With regard to the reference to research funds, the plaintiff claims that Beal's statement that Bernofsky's position was eliminated because he no longer had "any" research funds was untrue because the Air Force had approved a grant application in April, 1995, virtually simultaneously with Bernofsky's formal termination.

It is undisputed that from May, 1994 through Bernofsky's termination, Karam had repeatedly advised Bernofsky that Tulane would no longer subsidize his salary and he needed to raise the funds for that purpose. He was advised on January 31, 1995, that he was being terminated effective February, 1995, because of his failure to do so. Bernofsky filed suit at the end of January and this Court put his employment status "on hold" pending settlement discussions between the parties. The settlement discussions were unsuccessful, Bernofsky was terminated effective April, 1995, and in a June, 1995 letter to the Dean of the Medical School, Karam advised that "Termination of this position is due to lack of current research funding by the faculty member." Beal's letter to Wolinsky accurately reported the reason stated by Karam for Bernofsky's termination.

The Air Force grant was apparently approved in April, 1995. While the underlying record is silent as to how the impending grant was dealt with during the settlement discussions prior to formal termination, it is clear that even with $13,679 earmarked for Bernofsky's salary, Tulane would still be left shouldering nearly 80% of his faculty pay. This had been par for the course for a number of years and Karam had made it clear that it was unsatisfactory. Again, however, Beal correctly reported to Wolinsky the reason stated by Karam for Bernofsky's termination.

Even if the two disputed statements in Beal's letter can be construed as inaccurate, in the overall context, the plaintiff cannot establish that they were retaliatory.

Despite filing a lawsuit against Tulane, and specifically accusing Karam solely of all the discriminatory treatment alleged, Bernofsky nonetheless identified Karam as a reference in his applications for employment at other universities, including his inquiry to Wolinsky. His other two references were Stjernholm and Steele, two of the three faculty members who authored the critical evaluation provided to Karam, which commenced the process leading to his termination. Bernofsky did not so without asking their permission or even notifying them on his intentions and while his underlying litigation was still active and ongoing. Beal testified that it was medical center policy for the legal office to review any reference letters solicited from individuals involved in litigation. He noted Bernofsky's failure to approach the university about the references in advance and he cited concern among the faculty members that this was an "attempt to set them up," a legitimate concern [12]. (Rec. Doc. 72, Exh. C, p. 22-23).


12.  Bernofsky listed as his only references individuals, in particular Karam, who were pivotal in his negative evaluations and termination from Tulane. Had any of the three written letters that were favorable in some way, Bernofsky could have used them in the ongoing litigation to refute the nondiscriminatory reasons given for his termination. Had the letters been unfavorable, Bernofsky could have used them, as he is attempting to use the Beal letter, to show retaliation. The three individuals were in a "damned if you do, damned if you don't" dilemma.

None of this was expressed in the Beal letter. In fact, to the extent Beal's letter is inaccurate, it is inaccurate in Bernofsky's favor in painting a unduly rosy picture as to his termination. It is noteworthy that Karam, Stjernholm and Steele expressed other serious dissatisfaction with Bernofsky's performance, in addition to his failure to garner grant money to support his salary. Bernofsky was criticized for his failure to teach, his lack of committee participation, his reclusiveness, his diminishing research output and his publications in obscure, as opposed to recognized, journals. None of that was expressed in Beal's letter. Indeed, Beal's letter expressly stated that Bernofsky's dismissal "was not based upon any performance issues, but was strictly a financial decision due to lack of research funds." Beal also stated in the letter that "Lack of response form Dr. Karam, Dr. Steele or Dr. Stjernholm personally should not indicate any negative information relative to Dr. Bernofsky, but is necessitated because of the pending litigation." As Beal testified, to say that Bernofsky's dismissal was not based on any performance issues "was a stretch." (Rec. Doc. 72, Exh. C, p. 23). And to say that silence from Drs. Karam, Steele and Stjernholm should not be construed as negative was contrary to their actual evaluations. Nevertheless, Beal testified that his intent was to put "Dr. Bernofsky in the best light" so that his dismissal would not be perceived as performance based, but rather as a failure of funding "which is very common in academia." (Rec. Doc. 72, Exh. C, p. 23-24). The fact that Bernofsky has to parse Beal's letter so finely to criticize it only underscores the thundering absence of what Beal could have said had he wished Bernofsky ill [13]. The Beal letter not only is not retaliatory, but it bends over backwards not to cause him harm.


13.  Even had Beal disclosed the various evaluations by the three professors to Wolinsky, presumably that would not be found retaliatory either since the evaluations had in fact been made and were part of the termination process.

Likewise, Tulane has offered a valid, nonretaliatory reason for failing to respond at all to the inquiry from Campbell, namely that the inquiry simply was mislaid, or fell through the cracks. In light of what could have been reported to Campbell regarding the opinions of the three referenced professors, and in light of how Beal handled the inquiry from Wolinsky, Bernofsky utterly fails to produce any persuasive evidence that the silence was retaliatory.

Bernofsky alleges a number of factual contentions. He identifies them as relevant to "malicious intent" on the part of Tulane. Most of them are irrelevant to the "reference " claims of retaliation at issue here. Instead, most seek to revisit the issue of discriminatory and retaliatory discharge, or to use the evidence presented in that case to indirectly relitigate the issue of intent surrounding his termination. Specifically, Bernofsky argues that his termination was retaliatory; that he was not terminated due to a lack of funds, that he was treated discriminatorily during his employment at Tulane when compared to others, that Tulane tried to "thwart" his Air Force grant application, that Beal harassed Bernofsky by insisting that he abandon his laboratory at Tulane after his termination, that Tulane defamed Bernofsky by terminating him prior to the end of his alleged contract, that Tulane "subverted" an employment opportunity for Bernofsky by not letting him maintain his laboratory after he had been terminated, that Tulane discriminatorily denied him disability benefits in 1995 [14], breach of employment contract at Tulane, illegal seizure of Bernofsky's equipment in conjunction with his termination, Tulane's failure to provide a forwarding address for Bernofsky in 1995, Tulane's interception of mail after his termination, Tulane's cancellation of library privileges at Tulane after his termination and Tulane's failure to forward messages after his termination [15]. These allegations are familiar. To the extent that Bernofsky seeks to relitigate the issue of discriminatory or retaliatory intent with regard to his discharge, this Court finds that the lack of such intent has been determined in his first lawsuit and that determination is now final. To the extent that Bernofsky seeks to establish impermissible intent with regard to the current reference retaliation claims, the fact that Tulane did not discriminate or retaliate in terminating Bernofsky is no less final. To the extent that Bernofsky is arguing that Tulane's reason for terminating him, for writing the letter of reference to UH or not responding to the MTU request for a reference, are pretextual, the factual allegations are insufficient to remove the inference of impermissible retaliation or discrimination on this motion for summary judgment. Shackelford, supra. Finally, to the extent that these familiar facts are offered to create a reasonable inference of discriminatory intent with regard to the claims of reference retaliation, the Court finds that they are insufficient as a matter of law. Bernofsky offers no new facts sufficient to create a reasonable inference of discriminatory intent with regard to the reference retaliation alleged. Grimes, supra. Therefore, summary judgment on the retaliation claims is appropriate.


14.  That disability claim was the subject of Bernofsky's second lawsuit filed on May 27, 1998, and was dismissed by the plaintiff on July 27, 1998, after the Court determined that the claim was governed by ERISA. Teachers Ins. & Annuity Assn., Civ. Act. 98-1577 "C". (Civ. Act. 98-1577 "C", Rec. Doc. 21).

15.  This would include nearly all of the facts and arguments set forth between pages 34 and 51 of the plaintiff's opposition. (Rec. Doc. 77).

Defamation

In order to establish a defamation claim under Louisiana law, the plaintiff must prove the following: 1) a false and defamatory statement concerning another; 2) an unprivileged publication to a third party; 3) fault (negligence or greater) on the part of the publisher; and 4) resulting injury. Trentacosta v. Beck, 703 So.2d 552, 559 (La. 1997) [16]. In order to prevail in a defamation action, the plaintiff must prove that "the defendant, with actual malice or other fault, published a false statement with defamatory words which caused plaintiff damages." Sassone v. Elder, 626 So.2d 345, 350 (La.1993), cited in Trentacosta, 703 So.2d at 559.


16.  Although the plaintiff argues facts relative to the lack of response to the request for a reference from MTU, he does not clearly indicate that these facts comprise a separate claim of defamation. In addition, he does not address the publication requirement with regard to that claim. A defamatory action requires communication of defamatory words to someone other than the person defamed. Crooms v. Lafayette Parish Gov't, 628 So.2d 1224, 1226 (La. App. 3rd Cir. 1993).

For the reasons already stated, the Court finds that the two disputed remarks in the Beal letter were substantially accurate, hence the first element of the defamation claim fails. Even if the disputed remarks were inaccurate, the Court concludes they were not defamatory. Defamation is defined as words which "tend to harm the reputation of another so as to lower him or her in the estimation of the community or to deter third persons from associating or dealing with him or her." Sassone, 626 So.2d at 352.
Whether a particular statement is objectively capable of having a defamatory meaning is a legal issue to be determined by the court, considering the statement as a whole, the context in which it was made, and the effect it is reasonably intended to produce in the mind of the average listener.
Bell v. Rogers, 698 So.2d 749, 754 (La. App. 2nd Cir. 1997).

The focus then is whether stating that Bernofsky had filed litigation against Karam "personally" when in fact Karam was not named as an actual defendant in the suit and stating that Bernofsky was terminated because didn't have "any" grant money, when arguably he had some, was defamatory in the context of the overall letter. The answer is "no." The truth is that even though Karam was not a named defendant he was "named" by Bernofsky throughout the petition as the specific and only cause of his grief, including his termination. The allegations against Karam were personal and direct. That Beal may have inaccurately implied in his letter that Bernofsky actually named Karam as a defendant in the suit hardly would cause the average listener to shun Bernofsky or think less of his reputation [17]. Whether or not Bernofsky could have sued Karam personally is a legal question with no reputation connotation at all.


17.  Bernofsky argues that the inaccuracy caused him damage because it conflicted with the representation he made in his resume that he had received the Air Force grant, indicating possible dishonesty. Bernofsky confected his resume in July, 1995, after his termination and after being advised by Tulane that they would have to inform the Air Force of his dismissal. Bernofsky chose to list the grant without explanation and thereby assumed the risk of any misunderstanding.

Bernofsky cites testimony from Wolinsky that having litigation against the chairman of the department from a prior employment is a "kiss of death" to finding a new position since any new appointment would have to be approved by that chairman. However, the "kiss of death" comes from targeting the chairman personally and specifically in the litigation as Bernofsky indisputably did, regardless of whether he was specifically named as a defendant. It is specious to argue that a prospective employer would disregard the nature of the allegations in a prior lawsuit and only be concerned about whether a prior employer had been actually named a defendant. With regard to the funding issue, as already noted, Beal accurately reported the reason Karam gave to the Medical School Dean for Bernofsky's termination. Furthermore, even assuming the "too little too late" grant of April, 1995, could have provided some marginal funding for Bernofsky's salary had he been retained, it still wasn't enough to fulfill Karam's conditions for continued employment. Consequently, stating that Bernofsky was terminated because he hadn't "any" grant funding as opposed to being terminated for having woefully insufficient grant funding would not cause an average person to think less of his reputation.

Even assuming for purposes of this argument, that the Beal comments were inaccurate and were "defamatory", the Court finds a complete failure in proof as to the defendant's alleged malice, actual or implied. For the reasons previously stated, the Court finds that Beal went out of his way to paint as positive a picture as possible for Bernofsky under the circumstances.

In addition, Tulane argues that it is entitled to a qualified privilege for its communications with prospective employers regarding Bernofsky. "The employer must be free to make a complete and unrestricted communication without fear of liability in a defamation suit even if the communication is shown to be inaccurate, subject to the requisites that the communication is in good faith, is relevant to the subject matter of the inquiry and is made to a person (or agency) with a corresponding legitimate interest in the subject matter. ... 'This means that the person making the statement must have reasonable grounds for believing that it is true and he must honestly believe that it is a correct statement'." Williams v. Touro Infirmary, 578 So.2d 1006, 1010 (La. App. 4th Cir. 1991), quoting Harrison v. Uniroyal. Inc., 366 So.2d 983 (La. App. 1st Cir. 1978). See also Hines v. Arkansas La. Gas Co., 613 So.2d 646 (La. App. 2d Cir. 1993), writ denied, 617 So.2d 932 (La. 1993); Alford v. Georgia-Pacific Corp., 331 So.2d 558 (La. App. 1st), cert. denied, 334 So.2d 427 (La. 1976).

Bernofsky argues that there is an issue of fact as to Beal's state of mind and purpose and that he could not have reasonable grounds to believe that the two statements were correct. Again, these statements mirror the Tulane's defense at the time the UH letter was written, and this Court findings in the first lawsuit. The Court finds that the statements are sufficiently correct and made in good faith for purposes of this qualified privilege.

Finally, Tulane argues that it is entitled to the statutory privilege set forth in La. Rev. Stat. 23:291A, which provides:
Any employer that, upon request by a prospective employer or a current or former employee, provides accurate information about a current or former employee's job performance or reasons for separation shall be immune from civil liability and other consequences of such disclosure provided such employer is not acting in bad faith. An employer shall be considered to be acting in bad faith only if it can be shown by a preponderance of the evidence that the information disclosed was knowingly false and deliberately misleading.
Bernofsky argues that this immunity is not available to Tulane because there is an issue of fact as to whether the statements made by Beal were accurate or knowingly false and deliberately misleading. He then provides seven pages of familiar fact to establish that Bernofsky's academic performance was not unsatisfactory and that he did not consistently fail to generate grant funds prior to his termination at Tulane.

Dr. Bernofsky may have a deep-seated and heartfelt need to relitigate the issue of why he was terminated at Tulane. However, his opportunity has come and gone. He can not resurrect the issue in the carefully worded letter from Tulane to Bernofsky's friend at UH regarding a nonexistent position, or from Tulane's silence with regard to MTU's requests.

Accordingly,

IT IS ORDERED that the motion for summary judgment filed by the Administrators of the Tulane Educational Fund is GRANTED.

IT IS FURTHER ORDERED that:

1. The plaintiff's motion in limine regarding testimony about the plaintiff's web site is DISMISSED as moot (Rec. Doc. 56);

2. The defendant's motion in limine regarding enjoining plaintiff from making reference to his contended discriminatory discharge (Rec. Doc. 60) is DISMISSED as moot;

3. The defendant's motion in limine to exclude or limit the expert reports of Barbara Haynie and Thomas Dalton (Rec. Doc. 70) is DISMISSED as moot.

New Orleans, Louisiana, this  18  day of April, 2000.

s/     Helen G. Berrigan                  
HELEN G. BERRIGAN
UNITED STATES DISTRICT JUDGE


 
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