Lawsuit Against Tulane University for Discriminatory Discharge
Plaintiff's Response to Defendant's Pretrial Memorandum
(Case No. 95-0358, Docket No.104, July 8, 1996)
UNITED STATES DISTRICT COURT FOR
THE EASTERN DISTRICT OF LOUISIANA
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * DR. CARL BERNOFSKY * CIVIL ACTION Plaintiff * No. 95:0358 VERSUS * * SECTION "C" (2) TULANE UNIVERSITY MEDICAL SCHOOL * Defendant * JUDGE BERRIGAN * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
PLAINTIFF'S RESPONSE TO DEFENDANT'S PRETRIAL MEMORANDUM
I. Plaintiff's Race Claim; Plaintiff's Age Claim (1)
During the deposition excerpted by Tulane, the preceding portion of Dr. Bernofsky's deposition set forth certain of his bases for the assertion that Tulane discriminated against him either based on race or age.Q. All right, tell me why you believe that because you were a senior Jewish faculty member that you didn't make tenure and/or you were fired?
A. Well, because I've seen -- well, first of all, I consider that I did make tenure. I consider that I was past the probationary period. I had been promised tenure. And from that point on, since there had been the prospect -- from the time there was a prospect of tenure, I considered that I was on probationary period, and I had been promised tenure, that after the seven years, I had automatic tenure and that went along just perfectly with regard to what Karam said when he told me that I already had de facto tenure.
So, from that point, I consider that I did have tenure, although my complaint was that I didn't have official tenure from the Personnel and Honors Committee and this is what I was asking both -- asking Dr. Karam for, to put my name up for official tenure.
Q. Why do you believe the fact that you were a senior Jewish faculty member is in any way connected to the fact that you did not receive official tenure?
A. Well, because I could look at the -- look at the discriminatory practice by Dr. Karam against the three senior Jewish faculty members in the department. And these were Dr. Cohen, who had his lab taken away from him, his committee responsibilities and teaching taken away from him. I'm looking at Ehrlich that had her committee responsibilities taken away from her and her teaching duties taken away from her, and now she's having to move out of her laboratory. I'm looking at my own situation where here I am, an experienced investigator that's brought a great -- made great contributions toward Tulane. I've had, first, my office and then my laboratory taken away, and I've been, you know, fired after being told, in fact, that I had de facto tenure, and after a bogus evaluation of my credentials was made. These are the factors that lead me to believe that all three of us were subject to both race and age discrimination, particularly on the part of Dr. Karam and the people that worked with him on this, which would be the Dean, Dean Corrigan, and the other people that Karam hired to help him achieve his purposes, which would be Carol Uhlich.
Q. Well, then, if I understand your position here, Dr. Bernofsky, it's that you felt that your qualifications certainly merited tenure at Tulane --
Q. -- and you saw treatment of other senior Jewish faculty members that you felt was discriminatory. Okay, so those are two bases for this belief.
A. And the other basis was the fact that I had actually been put up for official tenure by the previous Department Chairman, and the fact that that was kept secret from me, thereby preventing me from appealing the process.
Q. Now, you actually -- that time you're talking about, you were never considered by the Personnel and Honors Committee, were you?
A. The entire process was kept secret from me.
Q. So you don't know, today, whether or not the Personnel and Honors Committee considered you for tenure?
A. I believe that Dr. Stjernholm testified at his deposition -- correct me if I'm wrong about this -- that the Personnel and Honors Committee did not consider his recommendation.
Q. Is there any other basis for your belief that the fact that you are a senior Jewish faculty member led to your being discriminated against at Tulane?
A. Those are the primary bases.
Q. Well, are there any secondary bases? Any other minor bases I should know?
A. No, not really.
Q. You can't think of any right now? I mean, the point of a deposition, Dr. Bernofsky, is you need to tell me all of the bases for your claims. And so, if you can't think of anything else now, just say that. In other words, I don't want you to keep any out of the record because they're not your primary bases.
A. Well, I can't think of anything right now.
(Bernofsky deposition 929-933.)
BY MS. LIVAUDAIS:
Q. The persons at Tulane involved in the pattern of discrimination are whom or were whom?
A. Well, I don't know who is involved -- who all was involved in my not getting tenure, but I think that there was a pattern of discrimination that took place, somewhere, possibly at some administrative level.
Q. Can you give me any names of any persons at Tulane who you believed were involved in a pattern of discrimination?
A. No, because I don't know what happened.
Q. Just so you understand, Dr. Bernofsky, I'm talking about all the discrimination that you contend occurred to you while you were at Tulane, and I want the names of anybody that you feel was involved in it in any year, starting in 1977 to when you left, okay?
A. Well, the primary discrimination -- I mean, the most important discrimination really occurred after Dr. Karam came, and I would -- it would be easiest for me to point my finger at him and the people that were associated with him, such as Carol Uhlich, because that was the most overt.
Q. Can you give me the names of anybody else at Tulane that you believe was involved in a patten of discrimination other than Karam and Uhlich?
A. Well, it's my feeling that there had been some underlying pattern. Now that I know that I had been recommended for tenure at -- from Dr. Stjernholm's letter of 1989, I can only assume that there was a pattern of discrimination at some administrative level at that time.
And I want to point out that Dr. Steele, also, in his testimony, said that he did not know why I didn't receive tenure after Dr. Stjernholm's 1989 letter, but he suspected that it was something that occurred at the higher administrative level.
Q. Do you remember who was in the higher administration back in 1989?
A. Dr. Fulginiti was the Dean at that time.
Q. So you believe he might have been involved?
A. Well, he might have been.
Q. Do you believe that Dr. Stjernholm was involved in a pattern of discrimination?
A. It's my feeling that he was not.
Q. How about Dr. Y.-T. Li?
A. Well, it's possible. From Dr. Li's, you know, testimony, I think that he could have been involved in discrimination. I mean, he obviously didn't like me for one reason or another. I think he possibly could have felt some discrimination against me.
Q. On what basis?
A. Well, on the basis of his testimony here during the deposition.
Q. Well, I understand that, but discrimination against you -- on what basis about you was he discriminating?
A. Well, he may have been discriminating against me on the basis that I was Jewish.
A. And I think this also harks back to the time when his collaborator attempted to -- successfully attempted to take over my laboratory when I was located in the Department of Pathology.
Q. You say that part of his feelings towards you might have started with that incident concerning laboratory space?
A. Well, it may have been -- that may have been an expression of it, because he never said anything to me at the time.
Q. In your mind, is the fact that you are Jewish tie into that incident about the laboratory space at all?
A. Yes. Yes, it does.
Q. It does? Why?
A. In my mind if does, because I feel that it does.
A. The way that I had been -- the crude way in which I had been treated at the time suggested to me that there was some deep seated discriminatory motive behind it.
(Bernofsky Deposition pages 864-867.)
Q. And when you say Li, you mean Y.-T. Li?
A. Y.-T. Li. And I have to point out, not Su-Chen.
Q. Not his wife. Okay. How about Jen-Sie Tou?
A. I never felt that she harbored any resentment against me on the basis of being Jewish.
Q. How about Dean Corrigan?
A. Well, I don't know about Dean Corrigan.
A. I mean, I don't know the individual well enough to be able to say one way or another.
Q. So, as you sit here today, in terms of the people that you do believe were involved in a pattern of discrimination against you, then, Dr. Karam, Carol Uhlich, and Y.-T. Li --
A. Possibly Y.-T. Li.
Q. -- right, and possibly Dr. Fulginiti, but you said you weren't sure, is that right?
A. Possibly Fulginiti, if he, indeed, was the person that was responsible for seeing to it that my recommendation of tenure was not passed on to the appropriate committee.
Q. Is there anybody else that you have strong feelings about?
A. Well, since Dr. Stjernholm had promised, you know, tenure early in 1977, it's possible that the Dean at that time was involved in discriminatory action against me.
Q. Do you remember the name of that person?
A. Well, it was Jim Hamlin.
Q. Can you think of anybody else who might possibly have harbored discriminatory feelings towards you?
A. It's hard to know.
Q. Nobody else that comes to mind as you sit here right now, then?
(Bernofsky Deposition pages 868-869.)
At his deposition, Dr. Cohen testified that Dr. Karam "did nothing overt, but he did make me feel uncomfortable in that he took responsibilities away from me that I might have had," and Dr. Cohen added that he had simply decided life was too short to fight the situation. (See Cohen Deposition, page 22.)
Dr. Ehrlich testified with respect to Dr. Karam's harassment of her, "But it has -- it has remained in my mind and in my husband's mind, with whom I have to continue to tell maybe every other working day my continued persecution by Dr. Karam, it is still in our minds that there may well be a Jewish component to this." (Dr. Ehrlich deposition page 27.)
As the court explained in Sinai v. New England Telephone, 3 F.3d 471, 62 F.E.P. Cases 1202 (1st Cir. 1993), attempts to defuse the allegation of discrimination by pointing out that several Jewish employees were hired around the time of the alleged discrimination failed to defeat plaintiff's claim.
[T]he relevant issue in a discrimination claim is whether the defendant discriminated against the plaintiff on an improper basis. The fact that the defendant hired other members of the protected class is evidence . . . but is not dispositive in itself . . . the jury could conclude that the defendant discriminated against [plaintiff] on the basis of race in spite of other [non-senior] Jewish hires.
Id. at 1205.
Dr. Ehrlich will testify for Dr. Bernofsky.
Dr. Bernofsky has alleged that he was discriminated against on the impermissible basis of either race or age. He is not required to show that all Jewish professors at Tulane have also been discriminated against, nor is he required to show that all professors over the age of 40 have been discriminated against.
1. No attempt is being made to combine these bases into one protected class.
II. Retaliation Under The ADEA
Tulane states at page 12 of its Pretrial Memorandum that Dr. Bernofsky's claim of age related retaliatory discharge was mentioned for the first time in the course of this litigation on June 28, 1996. However, in his Opposition Memorandum to Defendant's Motion for Summary Judgment that claim was discussed at pages 19-26 under the heading "B. Retaliation."
Tulane filed a "Reply Memorandum in Support of Motion for Summary Judgment" setting forth Tulane's response at pages 1-2.
Additionally, the claim was addressed on the fifth day of the five days during which Tulane deposed Dr. Bernofsky. (Bernofsky deposition 915-916.)
This is another attempt by Tulane to make it appear that plaintiff's counsel has acted inappropriately; however, Tulane has again misconstrued events.
Q. So the retaliation that you're speaking of was your firing, correct?
You have to say tell her, Carl. This is getting it down on the record. You have to say all these things.
BY MS. LIVAUDAIS:
Q. Okay. Dr. Bernofsky, your attorneys reminded you of something else that you need to tell me, so go right ahead.
A. Well, the retaliation, I mean, was triggered by more than just the grievance that I brought against Dr. Karam. It was really something that started shortly after Dr. Karam came and after our first discussion with tenure. This is what I feel really happened because the problems that existed with Carol Uhlich, I think, is an outgrowth of my discussions with Karam about tenure.
Q. So you believe that Dr. Karam retaliated against you for mentioning to him that you would like to have tenure?
A. I think he did. I really think he did, or at least that's when it started. I mean, the relationship is there -- the time relationship is there.
I mean, the retaliation has taken a number of forms. I mean, not only in my own termination, but really in his insistence that the people working with me be discharged.
(Bernofsky deposition 915-916.)
III. LA. R.S. 30:2027
Dr. Bernofsky complained of much more than water from a flood. As Tulane is fully aware, he complained of blood, animal hair, and chemicals pouring down into his laboratory.
A. Well, there were two elements in that. One was the problem with flooding in those laboratories, which was a chronic problem at Tulane. And I had complained about that, you know, on numerous occasions to Earl Bihlmeyer and to a number of other people.
This particular flood was especially bad not only because it damaged the equipment, but because it was -- it seemed to be filled with all kinds of, you know, chemicals of an unknown nature. Because the material that came down, as it was drying, it left a very heavy residue -- it looked like it had dissolved a lot of stuff from the appearance of things.
The people upstairs, I learned, had been -- they were cutting up rats and were throwing the pieces into a sink and that plugged up the sink. It was filled with blood and parts of the animals, and it apparently had flooded over the sink and behind the laboratory benches there.
And the Maintenance Department went up -- I see there is a report here. The Maintenance Department went up, and they said that they were storing boxes of chemicals under the benches that became flooded. And so those boxes had been damaged by the flood, chemicals were leached out of it and were coming down. And so what looked to me -- and from the odor, it looked to me that there was a lot of hemolyzed blood -- there was a lot of hemolyzed blood coming down in that sticky brown residue, plus other things in it that were very corrosive.
Q. What does "hemolyzed blood" mean?
A. When blood is diluted with water, the red blood cells burst and release the hemoglobin --
A. -- which, in the presence of air, turns brown.
A. It's normally red. It turns brown when it's exposed to air --
A. -- and this filtered through the -- this, of course -- it's in solution -- the concrete is very porous, and it just filtered right down through the concrete over everywhere --
Q. Right, and the lab --
A. -- and I didn't know what they were doing in that lab.
Q. Okay. Dr. Bernofsky, I'm going to ask you to try and limit your answers because I'm not looking for a speech in response to every question, and we're going to be here really late tonight --
A. Uh-huh (affirmative response).
Q. -- if we can't just kind of streamline this. I want you to -- I don't want to cut you off, but some of this stuff I've heard before. I have some really specific questions --
A. All right.
Q. -- pertaining to this grievance. So let's just see if we can, you know, try to streamline responses as much as possible. You told me that there were two aspects of this flood that bothered you and one was that it had occurred before. Is there a second aspect you haven't told me about?
A. Yes. One is I thought that the stuff was hazardous. I didn't know what was in it.
A. It had all kind of chemicals in it.
A. And the other thing was that it had damaged the equipment that it came in contact with.
(Bernofsky deposition 695-698.)
Q. Well, you -- do you have any reason to believe that this flooding incident that's the subject of Grievance 2 caused any contamination of your lab?
A. I don't know what the nature of the contaminants were, because I tried to clean it up as best I could.
Q. Okay. So you have no reason to believe that there was any contamination of your lab? You just don't know?
A. Oh, I have a lot of reason to believe there was contamination of the lab.
Q. Well, what --
A. But I don't know the nature of it.
A. It looked to me that -- at least, like it was blood mixed with other chemicals that were leached from the chemicals that were stored upstairs from the room that was flooded. And that was --
Q. And what in your lab was contaminated?
A. Well, it came over -- it covered -- the flood covered at least an entire lab bench. Where it went on the floor, we mopped up, but what was on the lab bench were all kinds of projects that were going on -- actually projects that were in progress, open beakers and things, and equipment. I mean, reagent bottles and equipment were also covered, completely covered and drenched.
I mean, my first impulse was to, you know, mop it up -- mop everything up as soon as possible. I went upstairs to try to get the Maintenance Department to find out what was going on. I told Karam about it, and I prepared a memo, which I gave to Karam a couple of days later.
(Bernofsky Deposition 702-703.)
IV. Conversion Under LA. R.S. 2315
Under Louisiana law it is not necessary to prove ownership to state a claim for conversion. An unreported decision by Judge Martin Feldman, which we had in our files but previously were unable to locate, provides authority on this issue.
. . . [I]t is not at all clear that ownership is a prerequisite to a conversion action (a possessory right superior to the defendant's may be enough). . . Peloquin v. Calcasieu Parish Police Jury, 367 So. 2d 1246, 1251 (LA. App. 3d Cir. 1979) ("We conclude that a possessor has the same rights as an owner of a moveable to sue for damages for conversion. . . ."). Nicholls Pointing Coulson Ltd. v. John Micheal McGinnis, Jr. and Kelly McGinnis Dreher, C.A. No. 91-4599 "F" at page 5 (unreported decision).
Dr. Bernofsky secured almost every item in the laboratories where he worked at Tulane either through personal funds or grant funds. Unquestionably, Dr. Bernofsky owns the equipment he paid for personally.
Likewise, when a granting agency provides funds which allow the purchase of equipment the practice is for that equipment to remain with the researcher as long as he is able to continue doing research.
Thus Dr. Bernofsky owns certain of the equipment outright (and has receipts and records to prove this fact); as to the remainder, he has a greater possessory right than does Tulane.
For each of these claims Dr. Bernofsky also refers the Court to his Memorandum, Reply Memorandum, and Supplemental Memorandum in Opposition to Summary Judgment previously filed.
Dr. Bernofsky has support for the claims he has asserted; accordingly, Tulane's Motion for Summary Judgment should be denied.
Roger D. Phipps #20326
PHIPPS & PHIPPS
210 Baronne Street, Suite 1410
New Orleans, Louisiana 70112
I certify that a copy of the above and forgoing has this day, July 2, 1996, been forwarded to counsel of record by HAND DELIVERY.
Roger D. Phipps
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