Lawsuit Against Tulane University for Retaliation and Defamation
Reply Brief on Behalf of Dr. Carl Bernofsky, Plaintiff-Appellant
(Case No. 00-30704, U.S. Court of Appeals for the Fifth Circuit, December 7, 2000)
IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT ____________________ 00-30704 ____________________ DR. CARL BERNOFSKY Plaintiff - Appellant v. ADMINISTRATORS OF THE TULANE EDUCATIONAL FUND Defendant - Appellee _____________________________________________ On Appeal from the United States District Court for the Eastern District of Louisiana, Civil Action No. 98-1792 c/w 98-2102, The Honorable Ginger Berrigan, Judge, Presiding _____________________________________________ Victor R. Farrugia #19324
Catherine C. Cooper #26153
VICTOR R. FARRUGIA, A PLC
228 St. Charles Avenue
New Orleans, LA 70130-2610
ATTORNEYS FOR PLAINTIFF - APPELLANT
DR. CARL BERNOFSKY
TABLE OF CONTENTS
(Page numbers refer to original document pages and here are hyperlinked to the appropriate reference.) PAGE TABLE OF CONTENTS i TABLE OF AUTHORITIES ii REPLY ARGUMENTS 1 I. THE DISTRICT COURT ABUSED ITS DISCRETION IN REFUSING TO RECUSE ITSELF 1 A. THE GUIDE TO JUDICIARY POLICIES AND PROCEDURES MANDATES RECUSAL BY THE DISTRICT COURT 2 B. TITLE 28 U.S.C. SECTION 455(A) REQUIRES RECUSAL 5 II. THE DISTRICT COURT ERRED IN GRANTING SUMMARY JUDGMENT ON THE RETALIATION CLAIM 16 A. THE DISTRICT COURT ERRED IN CONCLUDING THAT THE NEGATIVE REFERENCE LETTER IS NOT AN ADVERSE EMPLOYMENT ACTION 16 B. BERNOFSKY HAS ESTABLISHED A PRIMA FACIE CASE OF RETALIATION AND HAS ESTABLISHED THE ULTIMATE "BUT FOR" ISSUE OF UNLAWFUL RETALIATION 18 C. BERNOFSKY PROVES PRETEXT BY SHOWING THAT THE BEAL REFERENCE LETTER WAS NEGATIVE 19 D. BERNOFSKY'S RETALIATION CLAIM IS STRENGTHENED BY HIS EVIDENCE OF A PATTERN OF RETALIATION BY TULANE AND ITS AGENTS 21 III. THE DISTRICT COURT ERRED IN GRANTING SUMMARY JUDGMENT ON THE DEFAMATION CLAIM 21 CONCLUSION 23 SIGNATURE OF COUNSEL 23 CERTIFICATE OF SERVICE 23 CERTIFICATE OF COMPLIANCE 24
TABLE OF AUTHORITIES CASES PAGE Carter v. West Publishing Company, No. 99-11959-EE, 1999 WL 994997 (llth Cir. November 1, 1999) 12 Carter v. West Publishing Company No. 99-11959 (llth Cir. September 7, 2000) 12 Cortese v. United States, 782 F.2d 845 (9th Cir. 1986) 14, 15 In re Mason, 916 F.2d 384, 386 (7th Cir. 1990) 5 Liteky v. U.S., 510 U.S. 540 (1994) at 548, 114 S.Ct. 1147, 127 L.Ed.2d 474 9 Long v. Eastfield College, 88 F.3d 300, 305, n. 4 (5th Cir. 1996) 19 Martin v. Lincoln General Hospital, 588 So.2d 1329, 1332-33 (La.App. 2d Cir. 1991) 22 Mattern v. Eastman Kodak Company, 104 F.3d 708 (5th Cir. 1997) 17 Potashnick v. Port City Contr. Co., 609 F.2d 1101, 1111 (5th Cir. 1980) 3, 5 Republic of Panama v. The American Tobacco Company. Inc., No. 99-30685 (5th Cir. July 17, 2000) 10, 11 Robinson v. Shell Oil Co., 519 U.S. 337 (1997) 17, 18 Trentecosta v. Beck, 703 So.2d 552, 559 (La. 1997) 22 Trust Co. v. N.N.P., 104 F.3d 1478, 1491 (5th Cir. 1997) 11 United States v. Bremers, 195 F.3d 221, 225 (5th Cir. 1999) 11 United States v. Columbia Broadcasting System Inc., 497 F.2d 107, 109 (5th Cir. 1974) 4 United States v. Jordan, 49 F.3d 152, 156 (5th Cir. 1995) 5, 6, 11, STATUTES
28 U.S.C. Section 455(a)
2, 3, 4, 5, 6, 11, 12, 16
12, 13 Code of Conduct for United States Judges 2, 3, 13 TREATISES AND ARTICLES 1974 U.S. Code, Cong. & Admin. News, pp. 6351, 6354-55 4 Guide to Judiciary Policies and Procedures, 1999 Ed., Vol II, Chapter V, Section 3.4-3(a) 2 Judicial Conduct and Ethics, 2 Ed., Shaman, J.M., Lubet, S., Alfini, J.J.; Michie Law Pub., Charlottesville, VA (1995), p. 146 9 Note, Disqualification of Judges and Justices in the Federal Courts, 86 Harv.L.Rev. 736, 745 (1973) 5
Dr. Carl Bernofsky ("Bernofsky") replies to the legal and factual arguments presented in the Brief of the Administrators of the Tulane Educational Fund ("Tulane") as follows:
I. The district court abused its discretion in refusing to recuse itself.
Defendant misstates the financial arrangement between Tulane and Judge Berrigan. She received a stipend of $5,000.00 to be spent any way she desired. She could take advantage of the prearranged group rates for transportation and lodging and have money left over to use as she pleased. This was not an arrangement that they would only reimburse expenses, with a cap of $5,500.00. Judge Berrigan was given $5,500.00.
A. The Guide to Judiciary Policies and Procedures mandates recusal by the district court.
Defendant acknowledges on page 17 of its Brief that the Guide to Judiciary Policies and Procedures, 1999 Ed., Vol II, Chapter V, Section 3.4-3(a) at page V-39 states that a judge who teaches at a law school should recuse himself from all cases involving that institution as a party. [Record Excerpts, Exhibit 11]. The Defendant also acknowledges that Bernofsky's position is that this judiciary policy mandates that Judge Berrigan recuse herself. [Original Brief, page 20]. After acknowledging Bernofsky's argument, Defendant states that it will address this argument [Tulane Brief, page 17] but then fails to address it other than to say that the standard for Section 3.4-3(a) is the same as the standard for Section 455(a). This is not the case. Section 3.4-3(a) specifically states that a judge who teaches at a law school should recuse himself from all cases involving that institution as a party. There is no mention in Section 455(a) of a judge teaching at a law school. Although the Defendant in its Brief ignores this specific language of Section 3.4-3(a), the district court concluded that the rule does not provide clear guidance. [Record Excerpts Exhibit 5, page 4]. The district court noted that the Code of Conduct for Judges did not distinguish between a paid and an unpaid position. That distinction became irrelevant when Judge Berrigan accepted the stipend. After discussing the ambiguities of Section 3.4-3(a), the district court stated that it would welcome clear guidance from a higher court on this issue. The language of 3.4-3(a) is clear. When Judge Berrigan taught a law school class for a stipend, she clearly taught at a law school. The Code of Conduct states that if she teaches at a law school, she should recuse herself from all cases involving that institution as a party. The institution, Tulane, is a party in this case; therefore, the district court judge abused her discretion in not recusing herself in this case. Tulane, at page 18 of its Brief, cites the case of Potashnick v. Port City Contr. Co., 609 F.2d 1101, 1111 (5th Cir. 1980) as if it states that the standard for interpreting Section 455(a) is the same as the standard for interpreting 3.4-3(a) of the Code of Conduct for Judges. However, the Potashnick case does not even mention Paragraph 3.4-3(a) of the Code of Conduct for Judges. The Potashnick case does provide guidance of how Section 455(a) is an objective standard that is different from the prior provision, which was a subjective standard. "Section 455(a) provides that a judge shall disqualify himself in any proceeding in which 'his impartiality might reasonably be questioned.' This language sets up an objective standard rather than the subjective standard set forth in the prior statute through use of the phrase 'in his opinion.' According to the report of the House Judiciary Committee, the general standard of section 455(a) was designed to promote the public's confidence in the impartiality and integrity of the judicial process by saying, in effect, that if any reasonable factual basis for doubting the judge's impartiality exists, the judge 'shall' disqualify himself and let another judge preside. 1974 U.S. Code Cong. & Admin. News, pp. 6351, 6354-55." Id. "Clearly, the goal of the judicial disqualification statute is to foster the appearance of impartiality... This overriding concern with appearances, which also pervades the Code of Judicial Conduct and the ABA Code of Professional Responsibility, stems from the recognized need for an unimpeachable judicial system in which the public has unwavering confidence. As this court has noted, 'the protection of the integrity and dignity of the judicial process from any hint or appearance of bias is the palladium of our judicial system.' United States v. Columbia Broadcasting System Inc., 497 F.2d 107, 109 (5th Cir. 1974). Any question of a judge's impartiality threatens the purity of the judicial process and its institutions." Id. "Because 28 U.S.C. §455(a) focuses on the appearance of impartiality, as opposed to the existence in fact of any bias or prejudice, a judge faced with a potential ground for disqualification ought to consider how his participation in a given case looks to the average person on the street. Use of the word 'might' in the statute was intended to indicate that disqualification should follow if the reasonable man, were he to know all the circumstances, would harbor doubts about the judge's impartiality. Note, Disqualification of Judges and Justices in the Federal Courts, 86 Harv.L.Rev. 736, 745 (1973)." Id.
B. Title 28 U.S.C. Section 455(a) requires recusal.
Using the standard for interpreting Section 455(a) set by the Fifth Circuit in the Potashnick case, the district court abused its discretion in not recusing itself. In the case cited in Tulane's Brief on page 18, United States v. Jordan, 49 F.3d 152, 156 (5th Cir. 1995), the Fifth Circuit stated that the Court should view the question of recusal through the eyes of a well-informed, thoughtful and objective observer, which is an objective standard. However, the Court further cited language that indicates that judges have problems being objective because they are reluctant to impugn themselves. Judge Berrigan was not objective when she concluded that she is impartial in this case. "The Seventh Circuit (in the case of In re Mason, 916 F.2d 384, 386 (7th Cir. 1990)), recognized the problem with implementing this objective standard. Id. Judges must ascertain how a reasonable person would react to the facts. Problematic is the fact that Judges do not stand outside of the judicial system; they are intimately involved in the process of obtaining justice. Judges who are asked to recuse themselves are reluctant to impugn their own standards. Likewise, Judges sitting in review of others do not like to cast aspersions. 'Yet drawing all inferences favorable to the honesty and care of the Judge whose conduct has been questioned could collapse the appearance of impropriety standard under §455(a) into a demand for proof of actual impropriety.' Id. Accordingly, we are mindful that an observer of our judicial system is less likely to credit Judges' impartiality than the judiciary." Jordan, 49 F.3d at 156. The Fifth Circuit in Jordan held that the reasonable person would harbor doubts about the trial judge's impartiality. It further held that the trial judge abused his discretion in not granting the motion to recuse. The Fifth Circuit in Jordan clearly follows the average person on the street objective standard for examining whether the conduct of the judge has the appearance of partiality. The standard is not whether the judge thinks his or her conduct presents the appearance of partiality, but whether the average person on the street thinks so. Tulane invents a new standard in viewing the trial judge's impartiality, the reasonable plaintiff. Tulane argues that, because, according to Tulane, Bernofsky is not a stereotypical reasonable man, the trial judge does not have to recuse herself. [Tulane Brief at 19-21]. Under this newly invented theory of Tulane, it doesn't matter if Tulane gives the trial judge $5,500.00 or $5,500,000.00. Because Bernofsky is not a reasonable man, the trial judge is not obligated to recuse herself. Tulane, under its unique and inventive theory, examines the conduct of the plaintiff to decide if the judge should recuse herself. Apparently, under Tulane's reasonable plaintiff theory, the more reasonable the conduct of the plaintiff, the greater the obligation of the trial judge to recuse herself. Tulane incorrectly states, on page 19 of its Brief, that Bernofsky contends that the trial judge bartered her impartiality, betrayed her oath of office, and jeopardized her very young judicial career in exchange for two weeks in Greece. In the first place, it was three weeks in Greece. More importantly, Bernofsky does not have to prove that the trial judge was partial to Tulane when she dismissed Bernofsky's case. Bernofsky merely has to establish that the average person on the street would view the judge's conduct of accepting a stipend of $5,500.00 to teach a three-week course in Greece, paid for by the defendant in the case she is litigating, as having the appearance of partiality. Tulane then examines the reason for Bernofsky's former counsel for withdrawing from the case. [Tulane Brief, page 20]. This is totally irrelevant, and the information comes from outside of the record in this case. Tulane next examines Bernofsky's Web site and pronounces it an evolving manifesto on the evils of Tulane and of Judge Berrigan. This is totally irrelevant, and the information comes from outside of the record in this case. Apparently, under Tulane's recusal theory, the factors to be considered in determining if the trial judge should recuse herself are: reasons for the withdrawal of plaintiff's counsel and the characteristics of plaintiff's Web site. The argument by Tulane that Bernofsky is "judge shopping" because he didn't seek recusal until after Judge Berrigan granted summary judgment in the 1995 discrimination case is spurious. Bernofsky did not know of Judge Berrigan's ties to Tulane until after he had filed his appeal in the earlier case. The reason Bernofsky didn't know of Judge Berrigan's ties to Tulane is because Judge Berrigan did not disclose her association with Tulane. Contrary to the allegation of Tulane, Judge Berrigan's association with Tulane was not readily ascertainable. Whether Judge Berrigan's association with Tulane was readily ascertainable is not the issue. Judge Berrigan had a duty to disclose to Bernofsky and his counsel her association with Tulane because Tulane is the defendant in the case. According to the treatise Judicial Conduct and Ethics: "...it is the obligation of a judge to disclose all facts that might be grounds for disqualification."
"It is not the duty of the parties to search out disqualifying facts about the judge . . . it is the judge's obligation to disclose all possibly disqualifying facts."
Judicial Conduct and Ethics, 2 Ed., Shaman, J.M., Lubet, S., Alfini, J.J.; Michie Law Pub., Charlottesville, VA (1995), p. 146.
Justice Scalia in Liteky, in discussing the revision of §455 stated: ...[T]wo paragraphs of the [most recent] revision [of §455] brought into §455 elements of general 'bias and prejudice' recusal that had previously been addressed only by §144. Specifically, paragraph (b)(1) entirely duplicated the grounds of recusal set forth in §144 ('bias or prejudice'), but (1) made them applicable to all justices, judges and magistrates (and not just district judges), and (2) placed the obligation to identify the existence of those grounds upon the judge himself, rather than requiring recusal only in response to a party affidavit. (Emphasis added).
Liteky v. U.S., 510 U.S. 540 (1994) at 548, 114 S.Ct. 1147, 127 L.Ed.2d 474.
Again, Tulane is looking at the conduct of Bernofsky and not the conduct of the trial judge in addressing the recusal issue. Tulane claims that Bernofsky was judge shopping because he did not request recusal until after summary judgment was granted in the first case. Bernofsky did not know of the judge's ties to Tulane at that time, and in the absence of any evidence that Bernofsky knew of the judge's ties to Tulane, Tulane states that the judge's ties to Tulane were readily ascertainable. The duty is on the judge to disclose the ties to the defendant that may be grounds for recusal. It is not the litigant's duty to investigate the judge to try to find ties to the defendant that may be grounds for recusal. Whether these grounds are readily ascertainable or not is irrelevant. Bernofsky was not judge shopping. He just wants a judge who is not being paid by the defendant. Judge Lemelle and Magistrate Judges Wilkinson and Africk all recused themselves from this case because of their ties to Tulane. Judge Schwartz recused himself from the Rubinstein case because of his ties to Tulane. [Original Brief, pages 25-26]. It is not judge shopping to request that the trial judge have no ties to the defendant in the case. Tulane next states that the case law cited by Bernofsky is inapplicable. Not so. Bernofsky cites a recent Fifth Circuit case, Republic of Panama v. The American Tobacco Company, Inc., No. 99-30685 (5th Cir., July 17, 2000) that demonstrates circumstances that the Fifth Circuit considers to be sufficient for the recusal of the trial judge. [Original Brief, pages 22-23]. In addition, the Fifth Circuit in the Republic of Panama case clearly states the following analysis in which this Court reviews a denial by the trial judge of a motion to recuse for abuse of discretion: "28 U.S.C. §455(a) states that a judge should recuse himself in any proceeding in which his impartiality might reasonably be questioned. In order to determine whether a court's impartiality is reasonably in question, the objective inquiry is whether a well-informed, thoughtful and objective observer would question the court's impartiality." Trust Co. v. N.N.P., 104 F.3d 1478, 1491 (5th Cir. 1997) (citing United States v. Jordan, 49 F.3d 152, 155-58 (5th Cir.1995)). The review of a recusal order under §455(a) is "extremely fact intensive and fact bound;" thus, a close recitation of the factual basis for the appellant's recusal motion is necessary. As this court has previously pointed out, the purpose of Section 455(a) and the principle of recusal itself is not just to prevent actual partiality, but to "avoid even the appearance of partiality." Jordan, 49 F.3d at 155. "The analysis of a Section 455(a) claim must be guided, not by comparison to similar situations addressed by prior jurisprudence, but rather by an independent examination of the facts and circumstances of the particular claim. United States v. Bremers, 195 F.3d 221, 225 (5th Cir. 1999) (citing Jordan, 49 F.3d at 157)." Republic of Panama v. The American Tobacco Company Inc. at Paragraph 19. Although the Fifth Circuit stated that a §455(a) claim must not be guided by comparison to similar situations addressed by prior jurisprudence, Tulane offers the case of Carter v. West Publishing Company, No. 99-11959-EE, 1999 WL 994997 (llth Cir. November 1, 1999) (Tjoflat, J.), as being closely analogous to the case at bar. There are many differences between Carter and the case at bar that explain why the Circuit Judge opined that he should not recuse himself, and why this Honorable Court should hold that Judge Berrigan should recuse herself. The first difference is the relationship to the case of the judge whose recusal is sought. In Carter, the plaintiff attempted to have Circuit Judges Tjoflat and Birch of the Eleventh Circuit recused from the case, not the trial judge. These two circuit judges were not even on the Eleventh Circuit panel that heard the appeal of the denial of class certification. The class certification issue was decided ten months later by a different panel of Eleventh Circuit judges. Carter v. West Publishing Company No. 99-11959 (llth Cir. September 7, 2000). The judges that plaintiff attempted to recuse were on the Eleventh Circuit panel that granted defendant's petition to appeal the class certification under FRCP 23(f). Judge Berrigan is the district court trial judge who was in position to rule on the merits of Bernofsky's case and did, in fact, dismiss Bernofsky's case on summary judgment. The second difference is the timing of the payment to the judges in relation to when they took action in the case. Judge Berrigan was awarded the stipend to travel to Greece during the litigation and shortly before she granted summary judgment for Tulane. On the other hand, the trips by Circuit Judge Tjoflat to California occurred in 1983, 1984, and 1987. He participated in the decision to permit an appeal of the decision to grant class certification under FRCP 23(f) in June, 1999, 12 to 16 years later. The third difference is that Judge Berrigan was given a stipend of $5,500.00 to spend as she saw fit. Circuit Judge Tjoflat was only provided food and lodging and reimbursed for his other travel expenses. The fourth difference is that Judge Berrigan was sent to Thessaloniki, Greece for three weeks to teach a one hour class daily. Circuit Judge Tjoflat was sent to Palm Springs, California for three meetings in three different years to decide the recipient of the Devitt Award. There is more of a holiday flare to the three week trip to Greece. Not many people ever travel to Greece; even fewer get to spend three weeks in Greece, and fewer still receive a stipend to travel to Greece for three weeks. Judge Berrigan was generously given this rare trip to Greece in the middle of proceedings against the defendant, who was footing the bill for the trip. Canon 4 of the Code of Conduct for United States Judges, cited on page 23 of Defendant's Brief, allows judges to receive reimbursement of expenses for the teaching at seminars "if the source of such payments does not give the appearance of influencing the judge in the judge's judicial duties or otherwise give the appearance of impropriety." (emphasis added) It was improper for Tulane to offer the Greece teaching assignment in the midst of Judge Berrigan presiding over a case against Tulane. It was improper for Judge Berrigan to accept the stipend because of the appearance of impropriety. It was improper for Judge Berrigan not to disclose the trip and stipend to the parties in this case, and it was improper for Judge Berrigan, having decided to accept the trip and the stipend, not to recuse herself. Defendant cites the case of Cortese v. United States, 782 F.2d 845 (9th Cir. 1986) as authority for the proposition that recusal is not mandatory when the U.S. Marines, while a defendant in the case, treats the trial judge like a "Marine for a day" during the litigation. Although the Ninth Circuit in 1986 did not mandate recusal, it stated that, because the case was subject to further hearing below, "the trial judge might prefer, in the exercise of his sound discretion, to reassign the case to a different judge in light of the concerns we have expressed." The Ninth Circuit stated that the government acted improperly in presenting the judge dramatic and unnecessary hospitalities. Id. There is no comparison between "Marine for a day" and a three week trip to Greece with stipend. The judge in Cortese did not accept a stipend. The hospitalities bestowed upon the judge in Cortese for one day do not come close to the desirability of a trip to Greece. All of the hospitalities were related to viewing property from a fighter jet. The physical exam., parachute and safety training, and briefings were all necessary to fly in a fighter jet. There was a rationale for having the judge fly in the jet. One issue was jet traffic over a piece of property. Defendant states that the conduct was far more egregious in Cortese than Judge Berrigan's conduct because it occurred during the course of litigation. However, the case at bar was also in the course of litigation when Judge Berrigan chose to accept and not disclose Tulane's generous offer. Contrary to the statements of the Defendant, Bernofsky is not attempting to restrict Judge Berrigan from being involved in civic organizations. However, if the association with any particular organization gets too close, then she should not preside over a case with that organization as a party to the case. Contrary to the statements of the Defendant, Bernofsky is not manipulating the system for strategic reasons. There is no proof of this. This is mere conjecture or wild speculation. If the Court denies recusal on this unfounded basis, there would never be an occasion for recusal. Finally, the Defendant is misguided when it states that there is a strong policy presumption against recusal. While it is true that historically there used to be a traditional "duty to sit," the legislative history of Section 455(a) indicates that this Section was meant to lessen this traditional "duty to sit" and to require avoidance of even the appearance of partiality. [Original Brief, page 24]. Therefore, Title 28 U.S.C. Section 455(a) requires that the district court recuse itself in this case.
II. The district court erred in granting summary judgment on the retaliation claim.
A. The district court erred in concluding that the negative reference letter is not an adverse employment action.
The district court clearly holds that a negative reference letter is not an adverse employment action. [Record Excerpts, Exhibit 3, page 14]. The district court went on to state that the adverse employment action is the failure of the prospective employer to hire Bernofsky. Because of this conclusion by the district court, the district court then concluded that Bernofsky offered no proof that the negative reference letter was a determinative factor in Bernofsky not being hired. This is not true. Bernofsky did offer evidence that he would have made the short list of candidates at the University of Houston but for the negative reference letter. [Original Brief, page 37]. The point is that the district court concluded that the negative reference letter is not an adverse employment action because it went on to the issue of whether or not the negative reference letter was a determinative factor in not getting hired. If the district court had correctly concluded that a negative reference letter is an adverse employment action, it would not be necessary to prove that the Bernofsky was not hired because of the letter. The district court invites this Court to revisit its minority position of adverse employment actions stated in Mattern v Eastman Kodak Company, 104 F.3d 708 (5th Cir. 1997). [Record Excerpts, Exhibit 3, page 13]. Using the restrictive language in Mattern, the district court hesitantly concluded that a negative reference letter was not an adverse employment action. That conclusion was error by the district court. There have been no holdings on this issue that agree with the district court. On the contrary, there is legal precedent on this issue that concludes that a negative reference letter is an adverse employment action from the Ninth Circuit, several district courts and the U.S. Supreme Court in the case of Robinson v. Shell Oil Co., 519 U.S. 337 (1997). [Original Brief, pages 32-36]. This Court should reverse the district court's holding that the negative reference letter is not an adverse employment action because an employee would never be able to prove retaliation by an ex-employer in the form of a negative reference if that employee had to prove that he didn't get the job because of the negative reference. This is because the reference is used at the initial stage of the hiring process. After the reference stage is the interview stage. There is usually more than one candidate being interviewed. The final hiring decision is made after the interview of candidates. If the negative reference prevents the interview, it would be impossible to compare the interview results with the candidate that is ultimately hired. Such a scenario would allow an ex-employer to give retaliatory negative reference letters without being accountable for its actions. This result is contrary to the holding in Robinson, which decision this Court is bound to follow.
B. Bernofsky has established a prima facie case of retaliation and has established the ultimate "but for" issue of unlawful retaliation.
Bernofsky engaged in protected activity by filing a lawsuit alleging discrimination protected by Title VII. Tulane took adverse action against him by giving him a negative reference letter. There is a causal connection between the protected activity and the adverse employment action. The causal connection is stated in the letter, namely that the letter was written because of the pending litigation. This statement in the Beal letter, in addition to establishing the causal connection element of the prima facie case, also establishes the "but for" cause that Tulane identifies as the ultimate issue of unlawful retaliation. Long v. Eastfield College, 88 F.3d 300, 305, n. 4 (5th Cir. 1996). There is no doubt that, but for the pending litigation, Mr. Beal would not have written his letter. It says so in the letter.
C. Bernofsky proves pretext by showing that the Beal reference letter was negative.
Tulane's alleged legitimate nonretaliatory explanation for the Beal letter is that it was not negative. Bernofsky has evidence of pretext, namely that the Beal letter is negative in the context of academia. Tulane misquotes the district court in stating that the district court found that the statements in the Beal letter, that Bernofsky had sued Dr. Karam personally and that Bernofsky no longer had any research funds to support his position, were "substantially true." The district court actually said that the statements were substantially true, and even if technically inaccurate, they were not retaliatory. Thus, the district court admitted that these statements were inaccurate. The district court erred in ignoring Bernofsky's evidence that the Beal letter, as written, was negative in the specific context of academia. Tulane and the district court contend that the letter is not negative because it could have been worse. The issue is whether the letter, as it exists, is negative. The answer is: yes, it is negative. According to Wolinsky, the false statement that Bernofsky had sued the head of the department was the "kiss of death" for any effort by Wolinsky to help Bernofsky find work. According to Stjernholm, the false statement that Bernofsky had sued the head of the department personally was a "red flag," and he would immediately "throw out" Bernofsky's application with such a statement. [Original Brief, page 46]. This is clearly a negative statement in the context of academia, where heads of departments have the final say in hiring for their department. The false statement that Bernofsky no longer had any research funds to support his position is also a negative statement in the context of academia, especially when referring to a research professor. Dr. Dalton, in his expert report, states that this statement casts doubt on Bernofsky's ability to contribute to the support of his research. Dr. Dalton concludes that, to protect the integrity of his department's programs and the university's reputation, he would recommend "rejecting any application that included a letter such as Mr. Beal's." [Record Excerpts, Exhibit 24, page 2]. The above evidence that the Beal letter is negative proves that the reason offered for the adverse action is a pretext for retaliation.
D. Bernofsky's retaliation claim is strengthened by his evidence of a pattern of retaliation by Tulane and its agents.
Tulane claims to be confused as to why Bernofsky has presented evidence of a pattern of retaliation to the Court. [Tulane Brief, page 46]. Bernofsky presented this series of retaliatory acts by Tulane to show the fact finder that it is more probable that Tulane was retaliating when Beal wrote his letter than if the prior retaliatory acts had not occurred. Bernofsky has no desire to relitigate his prior claims. Bernofsky is claiming no damages for the retaliatory acts stated at pages 40 to 44 of his Brief.
III. The district court erred in granting summary judgment on the defamation claim.
The false statements in the Beal letter are both false and defamatory. The fact that Bernofsky had the grant money when he was fired makes the statement that he didn't have any funds false. The statement that Bernofsky no longer had any research funds harmed his reputation in the academic community. Bernofsky was a research professor, and a statement that he no longer had any research funds would lower the opinion of others in the academic community of the ability of Bernofsky to do his job. The second false statement, that Bernofsky sued the head of his department personally, is also defamatory in the context of academia. Professors are granted or denied tenure based on three areas, teaching, research, and collegiality. Obviously, it is damaging to Bernofsky's reputation in the area of collegiality if a false statement is made that he sued the head of his department personally. Both Tulane and the district court used an incorrect measurement to determine if the false statements were defamatory. They both used the standard of the average person, who is not familiar with academia. The definition of defamatory in the case of Martin v. Lincoln General Hospital, 588 So.2d 1329, 1332-33 (La.App. 2d Cir. 1991) included those statements that injure one in his occupation. Tulane's two false statements injure Bernofsky in his occupation. There was obviously publication to Dr. Wolinsky and resulting injury to Bernofsky. The only other element of defamation is that the statement was made with fault (negligence or greater) on the part of Mr. Beal. Trentecosta v. Beck, 703 So.2d 552, 559 (La. 1997). Fault is proven by the fact that Mr. Beal knew about the research funds when he wrote the letter. Also, as an attorney, Mr. Beal knew that the head of the department was not sued personally. These facts are sufficient to show fault on the part of Mr. Beal. Therefore, Bernofsky has presented sufficient evidence of defamation to survive summary judgment.
The district court erred in granting summary judgment, and this Court should reverse and remand for trial or reverse and render and remand for damages.
s/ Victor R. Farrugia
Victor R. Farrugia #19324
Catherine C. Cooper #26153
VICTOR R. FARRUGIA, A PLC
228 St. Charles Avenue
New Orleans, LA 70130-2610
CERTIFICATE OF SERVICE
I certify that on the 7th day of December, 2000, I served copies of the above Brief in both paper and electronic form by U.S. Mail, properly addressed and postage prepaid, on the following counsel of record:
Julie D. Livaudais, Esquire
Chaffe, McCall, Phillips, Toler & Sharpy, LLP
2300 Energy Centre
1100 Poydras Street
New Orleans, LA 70163-2300
s/ Victor R. Farrugia
Victor R. Farrugia
REVISED CERTIFICATE OF COMPLIANCE
Pursuant to 5th Cir. R. 32.2 and .3, the undersigned certifies this brief complies with the type-volume limitations of Fed. R. App. P. 32(a)(7).
1. EXCLUSIVE OF THE EXEMPTED PORTIONS IN 5TH CIR. R. 32.2, THE BRIEF CONTAINS (select one):
A. 5,289 words, OR
B. _____________ lines of text in monospaced typeface.
2. THE BRIEF HAS BEEN PREPARED (select one):
A. in proportionally spaced typeface using:
Software Name and Version: WordPerfect 8.0
in (Typeface Name and Font Size): Courier Regular , OR
B. in monospaced (nonproportionally spaced) typeface using:
Typeface name and number of characters per inch:
3. THE UNDERSIGNED UNDERSTANDS A MATERIAL MISREPRESENTATION IN COMPLETING THIS CERTIFICATE, OR CIRCUMVENTION OF THE TYPE-VOLUME LIMITS IN FED. R. APP. P. 32(a)(7), MAY RESULT IN THE COURT'S STRIKING THE BRIEF AND IMPOSING SANCTIONS AGAINST THE PERSON SIGNING THE BRIEF.
s/ Victor R. Farrugia
Signature of filing party
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