Carl Bernofsky v. Tulane University
 
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Lawsuit Against Tulane University for Discriminatory Discharge

Reply Brief on Behalf of Dr. Carl Bernofsky, Plaintiff-Appellant

(Case No. 97-30575, U.S. Court of Appeals for the Fifth Circuit, September 22, 1997)


 
On Appeal from the United States District Court
for the Eastern District of Louisiana, New Orleans Division
 
REPLY BRIEF OF APPELLANT
 
 
ROGER D. PHIPPS #20326 
PHIPPS & PHIPPS 
210 BARONNE STREET, SUITE 1410 
NEW ORLEANS, LOUISIANA 70112 
TELEPHONE NO: (504) 899-0763
EVANTHEA P. PHIPPS #19857 
PHIPPS & PHIPPS 
210 BARONNE STREET, SUITE 1410 
NEW ORLEANS, LOUISIANA 70112 
TELEPHONE NO: (504) 899-0763

ATTORNEYS FOR DR. CARL BERNOFSKY
 

 

CERTIFICATE OF INTERESTED PERSONS
 
No. 97-30575
 
DR. CARL BERNOFSKY
 
v.
 
TULANE UNIVERSITY MEDICAL SCHOOL
 
(ADMINISTRATORS OF THE TULANE EDUCATIONAL FUND)
 
 

Pursuant to Fifth Circuit Local Rule 27.5, Appellant hereby certifies that the following is a list of all parties who have an interest in the outcome of this suit:
 
Dr. Carl Bernofsky - Appellant
 
Roger D. Phipps, Esq., Counsel for Appellant
Evanthea P. Phipps, Esq., Counsel for Appellant

Mr. G. Phillip Shuler, III, Esq., Counsel for Appellee
Ms. Julie D. Livaudais, Esq., Counsel for Appellee
Mr. John Beal, Esq., Counsel for Appellee
 
 

                              ___________________________ 
Roger D. Phipps 
Louisiana Bar No. 20326

 
 

STATEMENT REGARDING ORAL ARGUMENT

Appellant requests oral argument.
 
 


(Page numbers refer to original document pages and here are hyperlinked to the appropriate reference.)
 
TABLE OF CONTENTS
CERTIFICATE OF INTERESTED PERSONS (i)
STATEMENT REGARDING ORAL ARGUMENT (i)
TABLE OF CONTENTS (ii)
TABLE OF AUTHORITIES (iii)
INTRODUCTION (1)
Dr. Stjernholm's Affidavit
(1)
Dr. Karam's Affidavit
(4)
De Facto Tenure
(5)
Air Force Grant
(6)
Teaching
(6)
Summary Judgment In The Employment Discrimination Context
(7)
Patterson Is No Bar To Claims Under 42 U.S.C. Section 1981
(7)
Dr. Bernofsky Is Collegial
(8)
Bennun Is Factually Similar
(9)
Building Could Easily Carry The Weight Of The EPR Spectrometer
(10)
Dr. Bernofsky Was An Asset To The Biochemistry Department
(11)
Dr. Bernofsky Engaged In Protected Activity
(11)
Dr. Bernofsky Has Evidence Of Discrimination
(12)
Detrimental Reliance
(13)
Contract
(17)
Other State Law Claims
(20)
CONCLUSION (20)
CERTIFICATE OF SERVICE (21)
CERTIFICATE OF COMPLIANCE (21)
 

 
TABLE OF AUTHORITIES
Cases 
 
Jepsen v. Florida Board of Regents, 610 F.2d 1379, 21 F.E.P. Cases 1700 (5th Cir. 1980) (7)
Kunda v. Muhlenberg College, 621 F.2d 532 (3rd. Cir. 1980) (7)
Patterson v. McLean Credit Union, 491 U.S. 164, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1988) (7)
Patterson v. Augat Wiring Sys., Inc., 944 F.Supp. 1509, 1519 (M.D.Ala. Oct. 28, 1996) (7)
Adams v. City of Chicago, 865 F.Supp. 445 (N.D.Ill. 1994) (8)
Steverson v. Goldstein, 24 F.3d 666 (5th Cir. 1994), cert denied. ___U.S.___, 115 S.Ct. 731, 130 L.Ed.2d 634 (1995) (8)
Goff v. Continental Oil Co., 678 F.2d 593 (5th Cir. 1982) (8)
Thomas v. Exxon, U.S.A., 943 F.Supp. 751 (S.D.Tex. 1996) (8)
Gottlieb v. Tulane University of Louisiana, 37 F.E.P. Cases 116 (E.D. La. 1985), aff'd 809 F.2d 278 (5th Cir. 1987) (8)
Luxemburg v. Texas A & M University System, 863 F.Supp. 412 (S.D. Texas 1994); 59 F.3d 1240 (5th Cir. 1995) (9)
Bennun v. Rutgers, 941 F.2d 154, 56 F.E.P. Cases 747 (3rd Cir. 1991) (9)
Collins v. Baptist Memorial Geriatric Center, 937 F.2d 190, (5th Cir. 1991), cert. denied, 502 U.S. 1072, 112 S.Ct. 968, 117 L.Ed.2d 133 (1992) (11)
Jones v. Flagship International, 793 F.2d 714 (5th Cir. 1987) (12)
Grizzle v. Travelers Health Network, Inc., 14 F.3d 261 (5th Cir. 1994) (12)
Carlson v. Ewing, 54 So.2d 414 (La. 1951) (13)
Andrepont v. Lake Charles Harbor & Term., 602 So.2d 704 (La. 1992) (14)
Sanders v. United Distributors, Inc., 405 So.2d 536 (La.App. 4th Cir 1981) (14)
Kethley v. Draughon Business College, 535 So.2d 502 (La.App. 2nd Cir. 1988) (14)
Robinson v. Standard Oil Co. of La., 180 So. 237 (La.App 1st Cir. 1938) (14)
In Succession of LaCroix, 29 La.Ann. 326 (1877) (14)
Breaux v. Schlumberger Offshore Services, 817 F.2d 1226 (5th Cir. 1987) (15)
Gottlieb v. Tulane University of Louisiana, 529 So.2d 128 (La.App. 4 Cir.) writ denied 532 So.2d 766 (La. 1988) (17)
Roussel v. James U. Blanchard & Co., Inc., 430 So.2d 247 (La.App. 4th Cir. 1983) (18)
Robledo v. Orr Motors of Louisiana, Inc., 582 So.2d 892 (La.App. 2d Cir. 1991) (18)
Graham v. The Magnolia School, Inc., 297 So.2d 435 (La. 1974) (18)
Gilbert v. Tulane University, 909 F.2d 124 (5th Cir. 1990) (19)
Leger v. Tyson Foods, Inc., 670 So.2d 397 (La. 3rd Cir. 1996) (19)
Wallace v. Shreve Memorial Library, 79 F.3d 427 (5th Cir. 1996) (20)
 
 Rules and Statutes
 
42 U.S.C. Section 1981 (7)
Civil Rights Act of 1991, 42 U.S.C. Section 1981(b) (7)
Civil Rights Act of 1991, Pub.L. No. 102-166, Section 3(1) and (4), 105 Stat. 1071 (1991) (7)
H.R.Rep. No. 40(I), 102d Cong., 1st Sess. 92 (1981), reprinted in U.S.C.C.A.N. 549, 630 (8)
La. Civ. Code art. 1967 (13)
La. Civ. Code art. 1914 (13)
La. Civ. Code art. 1915 (13)
La. Civ. Code art. 1916 (13)
La. Civ. Code art. 2675 (13)
La. Civ. Code art. 1997 (13)
La. Civ. Code art. 1998 (13)
La. Civ. Code art. 2749 (14)
La. Civ. Code art. 2315.3 (20)
 
 Other
Herman, Detrimental Reliance in Louisiana Law - Past, Present, and Future(?): The Code Drafter's Perspective, 58 Tul.L.Rev. 707 (1984) (15)

 



 
INTRODUCTION

This Reply Brief addresses factual misconceptions and issues raised by Tulane.
 

Dr. Stjernholm's Affidavit

Dr. Rune L. Stjernholm was Chairman of the Biochemistry Department from 1971 to 1991 and, following Dr. Karam's takeover of the Chairmanship in November, 1991, he remained at Tulane as a professor and is still active in its teaching program. Dr. Stjernholm's affidavit states: "I never promised Dr. Bernofsky a tenured position at Tulane," and "I did not feel Dr. Bernofsky was eligible for a tenured position at Tulane" (R.1303-1304, Appellee's Record Excerpts 11). However, his deposition testimony, taken after the affidavit was signed, intimates that Dr. Stjernholm was coerced into signing the affidavit under threat of losing his position at Tulane.

1)  On Sept. 27, 1977, Dr. Stjernholm wrote to the U.S. Dept. of HEW in support of a grant application that was countersigned by the Dean. It stated: (R.1535, emphasis added)

"Dr. Bernofsky is a competent cell biologist and biochemist and therefore can offer expertise in areas where the Department is deficient. It is proposed that we allow Dr. Bernofsky to develop his own research programs, to advise and direct graduate students and to become an integral part of the tenured faculty. Within a few years several retirements of the present faculty will be in effect and Dr. Bernofsky is our primary choice for replacement. With this realization, the Department will continue to sponsor his research by offering adequate laboratory and office space as well as the necessary secretarial help. Dr. Bernofsky will have no administrative duties and he will carry only a limited voluntary teaching load."
2)  In Feb/Mar 1977, the Experimental Therapeutics Study Section of the Dept. of HEW prepared a "Summary Statement" for a grant application that Dr. Bernofsky had submitted the previous year. Study Sections composed of scientists determine the suitability and funding priority of grant applications. Personnel information about principal investigators is ordinarily obtained through direct contact with department chairmen. The Summary Statement read: (R.1537, emphasis added)
"Dr. Bernofsky is currently Visiting Associate Professor in Biochemistry at Tulane University School of Medicine. The Study Section has learned that his department chairman intends him to be a permanent member when a tenured position becomes available."
3)  On July 10, 1978, Dr. Stjernholm wrote a letter of reference to John A. DeMoss, Chairman of the Department of Biochemistry and Molecular Biology at The University of Texas, Houston (Bench Book 40), and similar statements were made in other letters of reference. It stated, in part (emphasis added):
"Dr. Bernofsky was appointed Visiting Associate Professor with the understanding that when some retirements came up he would be moved into a tenured position. Meanwhile, Dr. Bernofsky would contribute to his own salary and provide for his group from grants."
"During the stay at Tulane, Dr. Bernofsky has provided our graduate program with some outstanding lectures. His contributions as dissertation advisor, prelim. examiner and organizer of discussion groups have convinced our faculty that he would be our first choice in replacing a retired member."
4)  On April 14, 1989, Dr. Stjernholm sent a memo to the Dean which began: "It is with great pleasure that I recommend Carl Bernofsky, Ph.D. for a tenured position in the Department of Biochemistry". (R.1434, emphasis added)

Dr. Stjernholm's statements contradict his affidavit. That Dr. Stjernholm was in fear of jeopardizing his own position at the Medical School if he did not cooperate with Tulane and sign the affidavit is evident from his deposition testimony, which shows that he was the victim of relentless age discrimination.

A. ...Now I'm close to retirement. I was supposed to step down in '89. . . (Stjernholm Depo., p. 11)
 

- - - - - - -

Q. And when did Fulginiti come in?
A. '89. April of '89. How well I know.

Q. Okay. Why do you say that, sir?
A. He wanted me fired. I was too old. I turned sixty-five in April. And he said, "Rune, better leave."

Q. Because of your age?
A. Yes. "I don't want you around."

Q. He told you that? I see.
A. Yes.

MR. BERNOFSKY:

Who said that?

THE WITNESS:

Fulginiti. I pointed out that, as a professor, I can go to seventy. And it made him very furious.

BY MR. PHIPPS:

Q. Did he harass you?
A. You bet.

Q. He tried to get you to leave?
A. Yes.

Q. Take your job duties and responsibilities away from you?
A. No increases for five years. (Stjernholm Depo., pp. 113-114) (R.2324-25).
 

- - - - - - -

A. ...[M]y birthday is the 25th, and on that day, I got a letter of termination.

Q. From Fulginiti?
A. Yes.

Q. And you refused to resign?
A. Well, I said, "You can appoint an interim Chairman if you want to. . ." (Stjernholm Depo., p. 117)
 

- - - - - - -

A. But I was told to step down.

Q. Pardon me sir?
A. I was told to step down. (Stjernholm Depo., p. 207).
 

- - - - - - -

Q. In 1977, he says that you told him that you would like to make him the next tenured professor --
A. Yes.

Q. -- when someone would retire?
A. Yes.

Q. But you didn't know when that would be?
A. That's right.

Q. You told him that? That's what he says that you said?
A. Yes. Then I changed my mind, huh?

Q. I don't know.
A. I did.

Q. It would appear to me that you hadn't changed it in 1979, though?
A. No, no.

Q. Because by then --
A. I think in '83, I start getting second thoughts about it.

Q. I understand that.
A. Yes.

Q. I have another letter here written to LSU --
A. Yes.

Q. -- that you wrote.
A. Dr. Roskoski.

Q. That's the one, sir.
A. Yes.

Q. Department of Biochemistry, LSU, third paragraph --
A. Yes.

Q. -- make that an exhibit, if you don't mind. And it says here, again, "that when some retirements came up" --
A. Yes.

Q. -- "with the understanding -- Dr. Bernofsky was appointed with the understanding that when some retirements came up he would be moved into a regular tenured position."
A. Uh-huh (affirmative response).

Q. I believe that you meant -- that these weren't lies at the time.
A. No.

Q. They weren't lies until -- well, they were never lies. I take it back. These were not lies. These were absolutely not lies.
A. No, they were promotions.

Q. They were the truth at the time?
A. Yes, absolutely. (Stjernholm Depo., pp. 106-09) (R.1756).
 

- - - - - - -

Q. And when you say "lone wolf," what do you mean? Are you saying -- is it a compliment?
A. It's a compliment.

Q. Okay. Because that's the way I took it, too.
A. Yes. . . .

Q. All right. You say, "He is a scholar but no gentleman"?
A. Right.

Q. Now, you said you --
A. A lone wolf doesn't have to be a gentleman. I don't -- you hurt him, or you do something wrong, you go in and borrow his equipment, you'll find out what a wolf is.

Q. That's true. That's true.
A. He'll stand up and fight for it. (Stjernholm Depo., pp. 146-47).
 

Dr. Karam's Affidavit

Dr. Bernofsky testified that on three separate occasions he inquired about Dr. Karam recommending him to the appropriate committees so that he could be granted official tenure. Dr. Bernofsky memorialized these conversations in his July 28, 1994 letter written in response to Dr. Karam's May 24, 1994 letter. Dr. Bernofsky's letter was written long before he sought legal advice. This document supports his testimony that on three occasions he approached Dr. Karam about the tenure issue and that on each occasion Dr. Karam told Dr. Bernofsky that he had de facto tenure.

Dr. Karam never stated to Dr. Bernofsky that he would not recommend his name for official tenure or that Dr. Bernofsky was not eligible for tenure until Dr. Karam's May 24, 1994 letter. Dr. Karam's May 24, 1994 letter informed Dr. Bernofsky that his 1994-95 appointment was conditional.

Dr. Karam meticulously documented all of his discussions, both important and mundane, by written correspondence. He had five secretaries to accomplish this feat. Curiously, he never bothered to confirm in writing this alleged discussion informing Dr. Bernofsky that Dean Corrigan had stated that Dr. Bernofsky was not eligible for tenure. In fact, the correspondence between Dean Corrigan and Dr. Karam did not surface until its disclosure was compelled during discovery.

Likewise, the Policy Statement on Criteria on Academic Performance, Promotion, and Tenure was neither provided nor cited by Dr. Karam until after Dr. Bernofsky objected on July 28, 1994 to Dr. Karam's memorandum stating that Dr. Bernofsky's 1994-95 appointment would be "conditional".

Contrary to Tulane's assertion, Dr. Bernofsky's objection to Tulane's denial of his "due process" rights had nothing to do with his not being given six months notice before termination but rather his rights under the 1976 Faculty Handbook including "academic due process" as defined in Article VI.
 

De Facto Tenure

Contrary to Tulane's assertion (Appellee's Brief, pp. 34-35), Dr. Bernofsky did not create the term, de facto tenure. Rather, de facto tenure is the term Dr. Karam repeatedly used in describing Bernofsky's tenured status and as a pretext for denying Dr. Bernofsky's request that Dr. Karam submit his name to Tulane's Personnel and Honors Committee for official tenure as had been done for Dr. Jen-sie Tou. Significantly, nowhere in Dr. Karam's affidavit (R.1258-1264, Appellee's Record Excerpts 6), nor in any of Tulane's pleadings is there a denial that Dr. Karam repeatedly told Dr. Bernofsky he already had de facto tenure. Significantly, de facto tenure does exist at Tulane but under another name, automatic tenure, which is defined in Art. III § 5 of the 1976 Faculty Handbook as follows. "Any appointment after the faculty member has completed the probationary period automatically carries tenure." (R.1539, Appellant's Record Excerpts 10).

Unknown to Dr. Bernofsky, the previous Department Chairman, Dr. Rune Stjernholm, had already recommended Dr. Bernofsky to the Dean for tenure in 1989, shortly after recommending Dr. Tou for tenure. This recommendation was never revealed to Dr. Bernofsky until its disclosure during discovery. This type of incident is specifically forbidden by University rules. According to Section V(A) of the 1976 Faculty Handbook, p. 25, "Faculty status, including appointments, reappointments, decisions not to reappoint, promotions, the granting of tenure, discipline and dismissal, is primarily a faculty responsibility." (Emphasis added.) This rule's purpose is to prevent preemption of these functions by the Dean, which is exactly what occurred here.
 

Air Force Grant

Tulane incorrectly asserts that Dr. Bernofsky received his $250,000 grant from the Air Force after his termination. The Air Force sent Tulane notification of his grant award on Feb. 1, 1995, with a carbon copy to Dr. Bernofsky, and both received it several days later. This occurred months before Dr. Bernofsky's April 21, 1995 termination date, and well in advance of Tulane's earlier deadline to secure grant funding of Feb. 28, 1995.

The Air Force grant budget provided a total of $59,560 for salaries and fringes for the first year and $63,135 for the second year (R.1547-48). As principal investigator, Dr. Bernofsky had discretion in allocating these funds for salary. Originally, he had intended to support salaries of his two post-doctoral assistants; however, by the time the grant was awarded he no longer had any research assistants. Dr. Bernofsky, by performing more of the work himself, would have been permitted to allocate funds slated for the post-doctoral assistants to cover his own salary. Additionally, approximately one-third of the grant funds, $82,600, would have been paid to Tulane as "indirect funds" to cover overhead and administrative costs.
 

Teaching

Tulane incorrectly persists in asserting that Dr. Bernofsky refused to teach. Dr. Bernofsky taught an advanced biochemistry course for 16 years and was considered to be among the best lecturers in the Department. Whenever requested, he also gave special lectures in other departments. Dr. Bernofsky never refused to teach and was willing to accept his full share of Departmental teaching responsibilities. Bernofsky testified that he was willing to teach if Karam would simply address the tenure issue (R.1519).
 

Summary Judgment In The Employment Discrimination Context

"It is recognized that hiring, promotion and tenure decisions in the university setting are most appropriately made by persons most familiar with the academic setting. However, selection criteria cannot be used as a mechanism for discrimination." Jepsen v. Florida Board of Regents, 610 F.2d 1379, 21 F.E.P. Cases 1700 (5th Cir. 1980). No special deference is to be paid to the tenure and promotion decisions of universities. . . . Kunda v. Muhlenberg College, 621 F.2d 532, 550 (3rd. Cir. 1980). "The fact that the discrimination in this case took place in an academic setting does not permit the court to abdicate its responsibility to insure the award of a meaningful remedy." Id.
 

Patterson Is No Bar To Claims Under 42 U.S.C. Section 1981.

Patterson v. McLean Credit Union, 491 U.S. 164, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1988) was superseded by the Civil Rights Act of 1991, 42 U.S.C. Section 1981(b).

Although Section 1981(b) does not directly state that retaliation claims are actionable under Section 1981, the legislative purpose of Section 1981(b) clearly evinces that Congress intended such claims to be actionable under Section 1981. Patterson v. Augat Wiring Sys., Inc., 944 F.Supp. 1509, 1519 (M.D.Ala. Oct 28, 1996). The express purpose of the Act is "`to provide appropriate remedies for intentional discrimination and unlawful harassment in the workplace,' and `to respond to recent decisions of the Supreme Court by expanding the scope of relevant civil rights statutes in order to provide adequate protection to victims of discrimination.'" Id. (quoting Civil Rights Act of 1991, Pub.L. No. 102-166, Section 3(1) and (4), 105 Stat. 1071 (1991)). In addition, the legislative history reflects that Congress intended to make retaliation claims actionable under Section 1981. Id. The House Committee on Education and Labor, the committee to which the bill to amend the Civil Rights Act of 1964 was assigned, stated:

Section 210 would overrule Patterson by adding at the conclusion of section 1981 a new subsection (b). . . . The Committee intends this provision to bar all race discrimination in contractual relations. The list set forth in subsection (b) is intended to be illustrative rather than exhaustive. In the context of employment discrimination, for example, this would include, but not be limited to, claims of harassment, discharge, demotion, promotion, transfer, retaliation, and hiring.

Id. at 1519-20 (quoting H.R.Rep. No. 40(I), 102d Cong., 1st Sess. 92 (1981), reprinted in U.S.C.C.A.N. 549, 630); Adams v. City of Chicago, 865 F.Supp. 445, 446-47 (N.D.Ill. 1994).

The Fifth Circuit, however, has not definitively addressed whether retaliation claims may be maintained under Section 1981, as amended by the Civil Rights Act of 1991. See Steverson v. Goldstein, 24 F.3d 666, 670 & n. 7 (5th Cir. 1994), cert denied. ___U.S.___, 115 S.Ct. 731, 130 L.Ed.2d 634 (1995). Without expressly discussing the issue, in Steverson, the court affirmed a jury verdict for retaliatory discharge under 42 U.S.C. Section 1981 and 1983. Id. Prior to Patterson, it was clear that retaliation claims were actionable under Section 1981. See Goff v. Continental Oil Co., 678 F.2d 593, 597-99 (5th Cir. 1982). Other circuits and district courts that have interpreted Section 1981(b) have indicated that retaliation is now actionable under Section 1981.

Thomas v. Exxon, U.S.A., 943 F.Supp. 751 (S.D.Tex. 1996).
 

Dr. Bernofsky Is Collegial

In Gottlieb v. Tulane University of Louisiana, 37 F.E.P. Cases 116 (E.D. La. 1985), aff'd. 809 F.2d 278 (5th Cir. 1987), the plaintiff was terminated not for lack of research funds but because a committee of nine of her peers unanimously found her to be non-collegial, overly aggressive, and detrimental to Tulane. According to Tulane, Dr. Gottlieb had numerous conflicts showing her "abrasive behavior," "her inability to collaborate harmoniously," and her mishandling of a situation which damaged relations with the LSU School of Medicine.

Non-collegiality is an amorphous label. The cases on non-collegial behavior articulate specific conduct found to be unsatisfactory. Moreover, the conduct generally involves "abrasive personality," "clash of personalities," "ostentatious behavior," and "disruptive obstructive behavior."

In contrast, Dr. Bernofsky on his own initiative put together a committee of five colleagues across the broad spectrum of the basic sciences departments at Tulane to collaborate using the EPR. Professors at Tulane found him to be collegial.

Remarkably, in the lengthy paper trail Tulane put together concerning Dr. Bernofsky, there is not a single instance where he is accused of an "abrasive" or "ostentatious" personality or of "disruptive behavior." Significantly, Dr. Karam's May 24, 1994 letter made no mention of problems with collegiality.
 

Bennun Is Factually Similar

The case at bar is nothing like Luxemburg v. Texas A & M University System, 863 F.Supp. 412 (S.D. Texas 1994); 59 F.3d 1240 (5th Cir. 1995). A more appropriate comparison is found in Bennun v. Rutgers, 941 F.2d 154, 56 F.E.P. Cases 747, 762 (3rd Cir. 1991). Like the comparison between Dr. Bernofsky and Dr. Tou, Bennun had more publications and grant support than Somberg, who was awarded tenure. Like Dr. Bernofsky, Bennun offered letters from four internationally known persons in his field. The court stated that the favorable letters of recommendations from world renowned scientists in his field showed objectively that he met the qualified element of a prima facie case. Id. at 762. Like Dr. Tou, Somberg had far fewer publications and no outside letters from internationally known persons working in her field. Id. at 763. Based on a comparison of credentials and a review of committee findings, the court determined that Somberg was treated more favorably than Bennun and found that the reason Rutgers assigned for denying Bennun's promotion was a pretext concealing the fact that Rutgers had applied a different standard to Bennun than it had to Somberg, who was a member of a favored class. The court noted that differing standards were applied to Bennun's detriment. Id. Here, Tulane applied a different standard to Dr. Bernofsky than it applied to Dr. Tou and/or Dr. Su-Chen Li.

Tulane does not require Dr. Su-Chen Li to teach as a justification for receiving her salary support from the Department. Neither is she required to provide grant support to pay the salaries of post-doctoral candidates who assist her with her research as Dr. Bernofsky was required to do.

Contrary to Tulane's assertion, Dr. Tou was not converted to research associate professor when, under Dr. Stjernholm's sponsorship, she received a prestigious grant (Appellee's Brief, p. 26). Instead, she was converted to research associate professor as an alternative to mandatory termination after failing on two successive years (6/26/79 and 6/24/80) to be granted tenure by the Personnel and Honors Committee. Dr. Tou's Research Career Development Award was in effect from 1975 to 1980, while she was an assistant professor. Following her conversion to research faculty, she was unable to generate major funding to pay any of her salary. Nevertheless, in 1989, Dr. Tou was granted automatic tenure based on her number of years at Tulane, which included a nine-year period after the "seven-year" deadline now claimed by Tulane.

In Dr. Bernofsky's case, the same materials provided to the Faculty Review Committee were later submitted to three extramural experts for evaluation. Contrary to Tulane's assertion, the responses from these experts were not "fan mail... of exaggerated praise from his friends." Rather, they represent the legitimate views of highly-respected, world-class leaders in their field who knew Dr. Bernofsky only through contact with him at international meetings of scientific experts (Gordon Conferences).
 

Building Could Easily Carry The Weight Of The EPR Spectrometer

According to Tulane, Dr. Karam would testify that Tulane's Maintenance Department told him the EPR spectrometer (which weighed about 4,000 lb.) was too heavy to be placed in the Biochemistry Department, which is located in Tulane's Burthe Cottam Memorial Building, the newest of three buildings that comprise the School of Medicine. However, on January 29, 1993, four months before the EPR spectrometer was delivered to Tulane, the engineering firm of Jeffrey, Thomas, and Avegno filed a report with Tulane's Maintenance Department concerning installation of a Gammacell-40 radiation source, which weighed about 10,000 lb., in Tulane's Burthe Cottam Memorial Building (Building "C"). The report states, ". . . we found that the structure is adequate to support the Gammacell equipment . . ." (Bench Book 142c, letter of 1/29/93 from Ashton Avegno to Mark Herbert.) Since the building could support 10,000 lb., it could support 4,000 lb. (R.1185 p.162, 1186 p.163).

Later events, which included delaying installation of the EPR, harassing Dr. Bernofsky over the use of EPR grant funds, and transferring control of the instrument to another department indicate that the true motive for Dr. Karam's actions was the intentional obstruction and subsequent destruction of Dr. Bernofsky's research program at Tulane. Concurrent with the delay in installation of the EPR, Dr. Bernofsky had a $268,000 NSF grant that required the use of the EPR spectrometer. That grant was not renewed for lack of progress (R.1185, p.162, 1186, p.163).
 

Dr. Bernofsky Was An Asset To The Biochemistry Department

Tulane asserted at the trial court that the termination of Dr. Bernofsky was based on legitimate and nondiscriminatory reasons. "Tulane terminated Dr. Bernofsky's employment because he simply was not contributing any support whatsoever to the Biochemistry Department. The bottom line is he was not an asset to the Department, and had not been an asset in recent years. . . . The practice of supporting Dr. Bernofsky's salary with Department funds is a long-standing one; its cessation was long overdue, given that it had become abundantly clear that he had lost his ability to acquire funding and was not publishing in scholarly journals. His inability to generate funding for his research was a direct reflection on the quality of his research and publication." (Defendant's Memorandum In Support Of Motion For Summary Judgment, pp. 17-18.) (R.1124-25).

"This system is analogous to most business operations. Dr. Bernofsky depleted the Department's funds . . . and, failed to contribute in return." (Defendant's Memorandum In Support Of Motion For Summary Judgment, p. 17-18.) (R.1124-25).

Tulane's assertion was contradicted by Dr. Stuart Wood, Ph.D, an economist retained by Dr. Bernofsky to review financial and other documents of the Biochemistry Department. His expert opinion is more fully discussed on pages 30-31 of Dr. Bernofsky's Original Brief.
 

Dr. Bernofsky Engaged In Protected Activity

A party's opposition to, or complaints concerning perceived harassment or discrimination is considered "protected activity." See Collins v. Baptist Memorial Geriatric Center, 937 F.2d 190, 193 (5th Cir. 1991), cert. denied, 502 U.S. 1072, 112 S.Ct. 968, 117 L.Ed.2d 133 (1992) (citing Jones v. Flagship International, 793 F.2d 714, 727-28 (5th Cir. 1987)); See also Grizzle v. Travelers Health Network, Inc., 14 F.3d 261, 267 (5th Cir. 1994).

After Dr. Bernofsky complained about the long-promised tenure from his new Department Chairman, he began to be harassed, his research efforts were hampered until he lost funding, he was evaluated by a method that did not comply with the requirements set forth by the Dean, and he was terminated despite the fact that he secured a $250,000 grant to support his research program before the deadline established by Tulane for obtaining new grant funds passed. This pattern of harassment and interference by Dr. Karam was not limited to Dr. Bernofsky, but was also directed against two other senior Jewish professors in the Department of Biochemistry, who were tenured.

Dr. Bernofsky's complaints were protected activity. His claim of retaliation does not turn on whether or not the tenure was owed him. He was seeking to be promoted, which for him was to be officially tenured. In response, he was told "that a guy of your age, who has been around for so long, already has de facto tenure". He was being told in effect that he could not be officially tenured on account of his advancing age. When he persisted in asking that his name be recommended for official tenure, he was harassed and alleged problems with his performance began to appear. The proximity in time of Dr. Bernofsky's complaints to Dr. Karam and his subsequent treatment in the form of harassment and interference with his research staff and program raises a triable issue as to whether the treatment was related to his complaints.
 

Dr. Bernofsky Has Evidence Of Discrimination

Tulane took Dr. Bernofsky's deposition over five days. The context of the excerpt cited as evidence that Dr. Bernofsky has no evidence of discrimination begins with the question: "Okay. Before we start with '85, let's focus on these first ten years that you were at Tulane. And tell me, are you contending in this lawsuit that any discrimination against you took place in the first ten years?" (R.1173 at pp. 160, Tulane's Record Excerpts 8). Dr. Bernofsky's complete answer discussed tenure, a laboratory incident, and a letter from the Dean (R.1173-74 at pp. 161- 64). The entire answer shows that, contrary to Tulane's assertion, Dr. Bernofsky did not admit that he has no evidence of any discrimination against him on the basis of his race, before Dr. Karam's arrival.
 

Detrimental Reliance

Tulane misconstrues the effect of La Civ. Code art. 1914. La. Civ. Code art. 1914 provides: "Nominate contracts are those given a special designation such as sale, lease, loan, or insurance." La. Civ. Code art. 1915 provides: "All contracts, nominate and innominate, are subject to the rules of this title."

La. Civ. Code art. 1916 provides: "Nominate contracts are subject to the special rules of the respective titles when those rules modify, complement, or depart from the rule of this title." When read in para materia, La. Civ. Code art. 1915 and 1916 provide that a nominate contract is subject to the general rules of obligations unless the specific rules are to the contrary.

La. Civ. Code. art. 2675 provides: "To let out labor or industry is a contract by which one of the parties binds himself to do something for the other, in consideration of a certain price agreed on by them both." Nothing in La. Civ. Code art. 2675 suggests that it modifies, complements, or departs from the general rules of the title on obligations. The comments to La. Civ. Code art. 2675 make reference to La. Civ. Code art. 1967.

La. Civ. Code art. 1967 provides in pertinent part:

"Cause is the reason why a party obligates himself.

A party may be obligated by a promise when he knew or should have known that the promise would induce the other party to rely on it to his detriment and the other party was reasonable in so relying."

Tulane maintains that under Carlson v. Ewing, 54 So.2d 414 (La. 1951) a cause of action does not lie under La. Civ. Code art. 1967, i.e., detrimental reliance. Carlson concerns issues presently governed by La. Civ. Code art. 1997 and 1998. Article 1997 deals with an obligor in bad faith. Article 1998 deals with damages for nonpecuniary loss. Dr. Bernofsky has made no claim under either La. Civ. Code art. 1997 or 1998. Carlson is inapplicable to this matter.

Tulane cites Carlson for the principle that general obligations articles of the La. Civil Code such as Article 1967, may not be applied in an employment context. In Carlson, the written employment contract at issue was silent as to the measure of damages. The court applied the general obligations provision found at Article 2040 to determine that the defendant had made the plaintiff's performance impossible, thus entitling the plaintiff to damages.

[T]he general obligations articles provide additional remedies available to an aggrieved employee whose contract is breached without cause. In fact, West's 1992 edition of the Louisiana Civil Code, as edited by A. N. Yiannopoulos, specifically provides cross-references from Article 2749 to general obligations articles . . . .

Although this court stated in Carlson v. Ewing, 54 So.2d 414 (La. 1951), that the general obligations article relating to measurement of damages did not extend to breach of contracts in an employee-employer relationship because of Article 2749 specifically provides for damages in cases of wrongful discharge, that case is distinguishable. In Carlson, this court concluded that Article 2749 prevails over general obligations provisions, but only in the context of a wrongfully discharged employee's duty to mitigate damages.

Although the court in Carlson correctly found Article 2749, the more specific statute, to be controlling on the limited question of duty to mitigate damages, that case does not stand for the proposition that Article 2749 prevails in all regards concerning wrongful termination of a fixed contract term."

Andrepont v. Lake Charles Harbor & Term., 602 So.2d 704, 709, n. 7 at 709 (La. 1992). The Court remanded Andrepont for consideration under general obligations provisions. Id. at 711. Thus Carlson provides no authority that Article 1967 is inapplicable here.

Louisiana courts have not hesitated to apply detrimental reliance to an employment context. Sanders v. United Distributors, Inc., 405 So.2d 536 (La.App. 4th Cir 1981); Kethley v. Draughon Business College, 535 So.2d 502 (La.App. 2nd Cir. 1988); Robinson v. Standard Oil Co. of La., 180 So. 237 (La.App 1st Cir. 1938); In Succession of LaCroix, 29 La.Ann. 326 (1877). Furthermore, the record shows Tulane knows that detrimental reliance is an exception to the Employment At-Will Doctrine (R.1552).

The concept of detrimental reliance was recognized in Louisiana law long before Article 1967 was codified. Breaux v. Schlumberger Offshore Services, 817 F.2d 1226, 1229 (5th Cir. 1987). See also Herman, Detrimental Reliance in Louisiana Law - Past, Present, and Future(?): The Code Drafter's Perspective, 58 Tul.L.Rev. 707, n. 12, at 710 (1984). Tulane's assertion that a claim of detrimental reliance in the employment context is not cognizable is wrong.

Dr. Bernofsky observed Dr. Stjernholm's efforts to secure official tenure for Dr. Tou, a Research Associate Professor in the Biochemistry Department. Until Dr. Tou was converted to a position with official tenure, she received the exact same annual written appointment letters from the personnel office as those issued to Dr. Bernofsky. Nonetheless, when Dr. Stjernholm, the Department Chairman, campaigned to see that she was awarded official tenure, Dr. Tou was converted from a research position to one with tenure.

Dr. Stjernholm informed Dr. Bernofsky repeatedly that he was working on accomplishing the same result for him. The individual seeking official tenure cannot nominate himself. That Dr. Bernofsky was reasonable in relying on Dr. Stjernholm to keep his word and lobby on Dr. Bernofsky's behalf is shown by the fact that Dr. Stjernholm, true to his word, did recommend Dr. Bernofsky for tenure to the Dean in 1989 (although this fact was kept secret).

The situation is analogous to what occurred in Breaux v. Schlumberger Offshore Services, 817 F.2d 1226 (5th Cir. 1987) where Schlumberger was held liable for the actions of its employee who led Breaux to rely to his detriment on representations which their employee made. Id. at 1233. Schlumberger argued that its employee, Tommy Nicholls, was without the authority to bind Schlumberger to an agreement with Breaux and that any reliance on Breaux's part was unjustified.

In rejecting that argument this Court noted that Schlumberger was not a fly-by-night company, but a well-respected company, and that although it was true that Nicholls could not himself bind Schlumberger, he represented that Schlumberger intended to enter into an agreement with Breaux, and it was reasonable for Breaux to expect that Schlumberger would subsequently enter into a binding agreement with him. Id. at 1230-31.

Under the theory of detrimental reliance, however, we focus on Nicholls' actions as an employee of Schlumberger. Under this tort theory, Schlumberger need do nothing separate and apart from the actions of its employee. Nicholls need only be in the course and scope of his employment when the tort occurred. Schlumberger itself may not have authorized or instructed Nicholls to bind Breaux, nor need they make Breaux think he was so authorized, but they are responsible for his actions as their employee. Id. at 1231.

As previously discussed in the plaintiff's Original Brief, Dr. Stjernholm made oral representations to Dr. Bernofsky that he would become tenured at Tulane. He represented in writing that Dr. Bernofsky would become a permanent member of the Department. Under the theory of detrimental reliance, Dr. Stjernholm needed only to be in the course and scope of his employment.

Tulane itself may not have authorized Dr. Stjernholm to make such representations to Dr. Bernofsky (although it is difficult for them to deny given the fact that the Dean signed two documents containing the representations), nor need Tulane make Dr. Bernofsky think Dr. Stjernholm was so authorized, but they are responsible for his actions as their employee. This is the basis for the doctrine of respondeat superior, and therefore the review of Dr. Stjernholm's conduct must be viewed in the context of the nature of the action.

In Breaux v. Schlumberger, this Court stated that even if it was not reasonable for Breaux, an attorney, to believe that Nicholls could bind Schlumberger to an agreement he made, it was reasonable for Breaux to believe that Schlumberger would eventually execute the written agreement that would formally bind them. This Court noted that Nicholls had also told third parties of Schlumberger's representations to Breaux, and Breaux learned of these communications. Id. at 1231.

Similarly, although Dr. Stjernholm could not himself personally confer official tenure, like Nicholls, he could recommend Dr. Bernofsky's name and lobby on his behalf to the appropriate committees as he had successfully done on behalf of Dr. Tou, to bring her credentials and circumstances before the Personnel & Honors Committee and the Executive Faculty. Dr. Bernofsky testified that the maneuvering which went on between the powerful Department Chairmen were like "the clash of the Titans" and that as a Department Chair, Dr. Stjernholm, had enormous power. In these power clashes, Dr. Stjernholm had proved himself successful as shown by the tenure secured on behalf of Dr. Tou, a Research Associate Professor. Gottlieb v. Tulane University of Louisiana, 529 So.2d 128 (La. App. 4 Cir.) writ denied 532 So.2d 766 (La. 1988) has no application to Dr. Bernofsky's claim of detrimental reliance. Dr. Gottlieb, unlike Dr. Bernofsky, asserted a claim under agency principles of apparent authority. Gottlieb at 131.

Under the theory of apparent authority, the principal will be bound for the agent's actions if the principal has given an innocent third party a reasonable belief the agent had the authority to act for the principal. Id. Under apparent authority, the focus is on the actions of the principal. Breaux v. Schlumberger, n. 4 at 1233.

In contrast, under the theory of detrimental reliance, the focus is on the action of the agent. Id. The focus differs because the nature of the actions differ. Id.

Dr. Bernofsky has a claim under detrimental reliance, and material facts are in dispute. Summary Judgment dismissing Dr. Bernofsky's claims of detrimental reliance should be reversed.
 

Contract

Dr. Bernofsky testified that Dr. Stjernholm repeatedly informed him through the years that he was working on Dr. Bernofsky's tenure. Also, Dr. Karam informed Dr. Bernofsky that he had de facto tenure (automatic tenure). Until he received official tenure, Dr. Bernofsky testified that he understood that he would receive annual appointment letters as did Dr. Tou until she was awarded official tenure. These annual appointment letters were for a one year term. At a minimum, Tulane breached the terms of Dr. Bernofsky's 1994-95 appointment.

A Faculty Personnel Action Form was issued with each appointment letter. The last Faculty Personnel Action Form Dr. Bernofsky received stated that the appointment was for the year, 1994-95 (R.1233). The 1994-95 appointment letter sets forth a definite period of one year. The term of an employment contract is to be determined from the understanding of the parties, their written or oral negotiations, the usages of business, and in general the nature of the employment and its surrounding circumstances. Roussel v. James U. Blanchard & Co., Inc., 430 So.2d 247 (La.App. 4th Cir. 1983). If an employee is to be paid a certain amount for a set period there is a presumption that he was hired for that period if it is shown that the parties intended or custom dictated the hiring was for the entire period. Robledo v. Orr Motors of Louisiana, Inc., 582 So.2d 892 (La.App. 2d Cir. 1991). The intent element hinges on the particular circumstances of each case.

In Graham v. The Magnolia School, Inc., 297 So.2d 435 (La. 1974), a teacher was employed under a contract providing for a three-year term. Thereafter the contract provided that it "may continue in force year after year . . . unless terminated by written notice . . . sixty days prior to severance." The Louisiana Supreme Court said:

We believe the intent of the parties was to continue the employment in increments of one year. The contract provides that the employment shall continue "year after year." Although this phrase may also be interpreted to mean merely an indefinite period of employment, we do not think such a construction is reasonable in light of the nature of the employment. Such a factor may be properly considered in determining the contemplated term of employment where the intent of the parties may not be clear. (Quotations omitted.) The business of educating children proceeds on an annual basis. . . . salary was specified in annual terms. Under the circumstances the reasonable construction of the intent of the parties . . . was yearly increments. Id. at 436.

The school's position that the agreement was terminable at any time by compliance with the sixty day notice requirement was rejected.

The tenor of the entire agreement establishes that the parties intended that the agreement could not be terminated at the lapse of a period or term . . . . The use of the term, "prior to severance," merely fixes a time period for notice in advance of the end of the contract period in the event the board of directors decided against renewal. Id.

Here, the 1994-95 appointment letter issued to Dr. Bernofsky set forth a term of one year. Nonetheless, Dr. Bernofsky was terminated before the end of the 1994-95 academic year. In a May 24, 1994 letter, Dr. Karam endeavored to style Dr. Bernofsky's employment as "conditional." This letter ignored Dr. Bernofsky's contract with Tulane under the terms of the 1976 Faculty Handbook as modified by Dr. Stjernholm's statements concerning tenure, which had been confirmed in writing and signed by both Dr. Stjernholm and the Dean. Dr. Bernofsky was already automatically tenured under the terms of the 1976 Faculty Handbook, but assuming that Dr. Karam could make Dr. Bernofsky's appointment conditional, which he could not, Dr. Bernofsky obtained funding to support his research by securing a grant of $250,000 before Dr. Karam's deadline of February 28.

Thus, the action terminating Dr. Bernofsky's 1994-95 appointment was in breach of the term of his annual appointment and his contract of tenure under the 1976 Faculty Handbook as modified by Dr. Stjernholm's statements concerning tenure, which had been confirmed in writing and signed by both Dr. Stjernholm and the Dean. These matters were previously discussed in Dr. Bernofsky's Original Brief and are not addressed again here.

Cases cited by Tulane are easily distinguished. In Gilbert v. Tulane University, 909 F.2d 124 (5th Cir. 1990), the employee admitted that no oral promises had been made to him concerning the benefits set forth in the Staff Handbook. Also, Gilbert admitted that he was an at-will employee. In contrast, Dr. Bernofsky testified that the 1976 Faculty Handbook was given to him when he arrived at Tulane, and he was told that it governed his employment. Moreover, Dr. Stjernholm informed Dr. Bernofsky that he was working on tenure for him and intended to make him a tenured member of the Department, and he provided written confirmation of the promise of tenure that was signed by Dr. Stjernholm and the Dean. Thus, Gilbert is distinguishable.

In Leger v. Tyson Foods, Inc., 670 So.2d 397 (La.3rd Cir. 1996), Leger admitted that no promises were made to him concerning his employment. Moreover, the employment manual contained a disclaimer. In contrast, Dr. Stjernholm at his deposition taken subsequent to his affidavit, admitted that he told Dr. Bernofsky that he intended to make him the next tenured professor. Writings to third parties confirm this. Further, the 1976 Faculty Handbook has no disclaimer. Thus Leger is distinguishable.

In Wallace v. Shreve Memorial Library, 79 F.3d 427, 430 (5th Cir. 1996), the employment manual did not meet the requirements of a contract. There was no evidence that the employment manual was a bargained for exchange. Id. at 430. In contrast, here, provisions in the Faculty Handbook must be approved by the University Senate. As such, they may be viewed as conditions of employment bargained for between the Faculty and the University, rather than mere unilateral expressions of the University's policies and procedures. The benefits provided in the Faculty Handbook are not merely gratuitous, they are binding.

Here, Faculty with responsibility for approving provisions in the Handbook have stated that the provisions are a contract with the University. In fact, the General Counsel, in a Freedom, Tenure, and Faculty Responsibility Committee meeting admitted: ". . . there are some provisions in the Handbook that . . . rise to the level of a contract" (R.549, 211).

Here, under Wallace, the Faculty Handbook is a contract under Louisiana law. Summary judgment dismissing Dr. Bernofsky's claims for breach of contract should be reversed.
 

Other State Law Claims

Dr. Bernofsky has not raised his claim under La. Civ. Code art. 2315.3 on appeal.

His other state law claims have been fully addressed in his Original Brief.
 
 

CONCLUSION

Genuine issues of material fact are in dispute with respect to each of Dr. Bernofsky's claims raised on appeal. Summary judgement was unwarranted and should be reversed.
 
 

CERTIFICATE OF SERVICE

I certify that a copy of the Appellant's Reply Brief has this day been forwarded to all known counsel of record by hand delivery to:

G. Phillip Shuler, III
Julie D. Livaudais
Chaffe, McCall, Phillips, Toler & Sarpy
2300 Energy Centre
New Orleans, LA 70163

New Orleans, Louisiana, this 22nd day of September, 1997.
 
 

                              ___________________________ 
Roger D. Phipps 

 
 
CERTIFICATE OF COMPLIANCE

Pursuant to 5th Cir. R. 32.2.7(c), the undersigned certifies this Brief complies with the type-volume limitations of 5th Cir. R. 32.2.7(b).

1.  EXCLUSIVE OF THE EXEMPTED PORTIONS IN 5th Cir. R. 32.2.7(b)(3), THE BRIEF CONTAINS 6719 words in proportional typeface; the Brief is left-justified only.

2.  THIS BRIEF HAS BEEN PREPARED in proportional typeface using WordPerfect 5.1; New Century Schoolbook, 11 point.

3.  IF THE COURT SO REQUESTS, THE UNDERSIGNED WILL PROVIDE AN ELECTRONIC VERSION OF THE BRIEF AND/OR A COPY OF THE WORD OR LINE PRINTOUT.

4.  THE UNDERSIGNED UNDERSTANDS A MATERIAL MISREPRESENTATION IN COMPLETING THIS CERTIFICATE, OR CIRCUMVENTION OF THE TYPE-VOLUME LIMITS IN 5th Cir. R. 32.2.7, MAY RESULT IN THE COURT'S STRIKING THE BRIEF AND IMPOSING SANCTIONS AGAINST THE PERSON SIGNING THE BRIEF.
 
 
  s/      Roger Phipps        
 

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