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"DO YOU KNOW WHAT HAPPENS TO PEOPLE WHO SUE THEIR EMPLOYER?"

Retaliation and Defamation, Tulane Style
Background

Dr. Carl Bernofsky was employed on the faculty of Tulane University School of Medicine for nearly 20 years until he was terminated on April 21, 1995.

On January 31, 1995 Bernofsky filed an action in federal court designated as Dr. Carl Bernofsky v. Tulane University Medical School (Civil Action No. 95-358), alleging race discrimination claims under 42 United States Code, Section 1981. These claims were joined with various other state law based claims and were served on Tulane's counsel, Mr. John R. Beal.

On February 10, 1995, Bernofsky filed a charge (No. 270-95-0754) with the United States Equal Employment Opportunity Commission ("EEOC") alleging race discrimination under Title VII of the Civil Rights Act of 1964 as amended, 42 United States Code Section 2000e et seq. ("Title VII"), and age discrimination under the Age Discrimination in Employment Act ("ADEA"). A "right to sue" notice was mailed by the EEOC on August 22, 1995.

Upon receiving notice of these claims, Tulane immediately assumed a retaliatory posture and undertook a campaign to ensure that Bernofsky would never again be engaged in his profession as a research scientist.

Tulane's Termination was Retaliatory

Although Bernofsky had an appointment contract with Tulane that ended on June 30, 1995, he was terminated on April 21, 1995, despite the fact that he had met Tulane's fund-raising demands before the arbitrarily-established deadline of February 28, 1995. Bernofsky asserts that the financial arguments used by Tulane to justify his termination were merely pretextual.

Prior to Dr. Jim D. Karam's chairmanship of the Biochemistry Department, Bernofsky had at one point lost grant support for a period of nearly two years. During that period, Tulane allowed him to work for little salary without ever threatening termination, and major grant support was subsequently reestablished.

In contrast, following his lawsuit in 1995, Tulane terminated Bernofsky on the premise that he had insufficient grant funds for his salary. Not only did Tulane not have a policy of forced termination based on a temporary loss of grant funding, but according to Tulane's Guidelines for the Assignment of Research Space,

"When an investigator loses a grant, he or she should be given two grant cycles, or approximately three years, to regain support."

Moreover, in the present instance, Tulane had received notice of Bernofsky's new $250,000 grant from the Air Force ten weeks before terminating him on April 21, 1995.

Bernofsky claims that Tulane and its agents retaliated against him and engaged in a pattern of malicious reprisals from January, 1995 onward because of his participation in the above protected activities.

Tulane's Method of Termination was Defamatory

Tulane terminated Bernofsky prior to the specified term (June 30, 1995) of his yearly contract with Tulane, thereby tainting him with the stigma that is reserved for those who are terminated for adequate cause.

According to Article V, Section 1 of the Faculty Handbook that was given to Bernofsky in 1976, termination before the end of a specified term may be effected only for "adequate cause," which is defined in Article V, Section 2 as: unfitness to teach, incompetence, lack of scholarly objectivity and integrity, serious misuse of the classroom or of academic prestige, serious interference with the academic freedom of others, gross personal misconduct, or conviction of participation or conspiracy to overthrow the government by force. In the eyes of the academic community, these are the kinds of egregious offenses of which Bernofsky stands accused by inference. Tulane's determination to fire Bernofsky before the end of his contract term was deliberately intended to damage his reputation, inflict emotional distress, and undermine his future prospects for academic employment.

In 1996, Bernofsky received a personal invitation from a colleague at Louisiana State University, Baton Rouge, to apply for a position in Environmental Organic Chemistry with particular emphasis in free radicals. This was precisely the area of expertise for which Bernofsky had been awarded a grant from the Air Force in 1995. His LSU colleague had invited him several years earlier to present a seminar in Baton Rouge. Both scientists attended the same conferences on free radicals in biology and medicine. Bernofsky applied for the position and listed three prominent free-radical experts as references. However, after he explained the circumstances of his termination from Tulane in a letter, he never heard from his colleague again nor from any of the other individuals involved with this position. Bernofsky attributes their silence to the stigma attached to his termination and possibly to information they may have received from Tulane.

Tulane Subverted an Important Opportunity for Employment

Tulane retaliated against Bernofsky by insisting on conditions that precluded the transfer of his research program to another local institution, the Southern Regional Research Center ("SRRC"), a branch of the United States Department of Agriculture ("USDA"). The official policy adopted by Tulane was expressed by its counsel, John Beal, in his letter of May 30, 1995 to Bernofsky's attorney, Roger D. Phipps, which stated, in pertinent part:

"There is no intention on Tulane's part to allow Dr. Bernofsky to maintain laboratory space or an office as an employee of the USDA. That has never been offered and will not be offered."

In 1995, Bernofsky investigated the possibility of employment with the SRRC. The Director, Dr. J. Patrick Jordan, sought to intervene on Bernofsky's behalf in a manner that would be of mutual benefit to SRRC and Tulane. Jordan attempted to establish a collaborative relationship with Tulane that would permit Bernofsky to transfer his laboratories to the SRRC and work as a Research Collaborator, utilizing funds from his new $250,000 research grant from the Air Force to support his salary.

Bernofsky met with Jordan on several occasions to discuss the transfer of his research program, to plan for the utilization of Bernofsky's new grant, and to arrange for the use of the $250,000 EPR spectrometer that Bernofsky had earlier brought to Tulane and which was vital to his research program.

Dr. Jordan convened an ad-hoc SRRC committee that formulated a Draft Proposal that was subsequently submitted to Tulane. In an effort to negotiate a working relationship with Tulane based on this Draft Proposal, Jordan conferred with Tulane officials, both individually and in formal group meetings. Those officials included Dean James Corrigan, Chancellor John La Rosa, Associate Dean of Finance Larry Baudoin, Dr. William Toscano, Chair, Department of Environmental Health Sciences, and Vice President for Research, Susan D. Allen.

Despite Jordan's repeated efforts and the indirect funding to Tulane that Bernofsky's Air Force grant would provide, Tulane was unbending in its refusal to permit Bernofsky any space that would make it possible for him to perform the work described in the Air Force grant. Thus, Tulane bears full responsibility for the failure of the two institutions to cooperate in salvaging Bernofsky's research program and, ultimately, his scientific career.

Tulane Sought to Discourage Potential Employers

When Bernofsky attempted to find professional employment in 1997, Tulane retaliated against him by failing to follow the normal university procedure of providing references for professors who had been employed there. Bernofsky applied to 52 potential employers in 1997 but was not granted a single interview. Having been on the Medical School faculty for nearly 20 years, Bernofsky listed as references Dr. Jim D. Karam, Chairman of the Department of Biochemistry, Dr. Rune L. Stjernholm, former chairman of the Department, and Dr. Richard H. Steele, a retired professor from the Department, all of the Tulane University School of Medicine.

John Beal, Tulane's Associate General Counsel, admitted that he instructed these professors not to respond to potential employers who inquired about Bernofsky's professional qualifications. Thus, they did not respond to the request of the University of Houston, a prospective employer, or to Michigan Technological University, another prospective employer who requested letters of reference on two separate occasions.

Tulane further defamed and retaliated against Bernofsky when Beal sent a letter on February 21, 1997 to the University of Houston falsely stating that Bernofsky had sued his former Department Chair personally and that he was terminated because of a lack of research funds. Bernofsky did not sue Karam personally and, at the time he was fired, Bernofsky had funds available from a $250,000 research grant from the Air Force to support his position. The false and malicious representations by Tulane's counsel, John Beal, were intended to undermine Bernofsky's chances of professional employment, and were clearly injurious.

Moreover, when Tulane refused to respond to the repeated requests of Michigan Technological University, it jeopardized Bernofsky's opportunity for a position there. Bernofsky was willing to accept a temporary position to achieve his goal of acquiring a tenured position.  "Economic theory" might predict that Tulane would not stand in the way of Bernofsky's search for employment. However, the tactics used by Tulane to subvert Bernofsky's search for employment indicate that Tulane was motivated by a different criterion: namely, a willful intention to inflict mental anguish and cause financial injury.

Tulane Retaliated by Denying Disability Benefits

Bernofsky developed a malignancy that was initiated during a period of intense hostility directed against him by his new Department Chair. His tumors were first observed on May 9, 1995 and subsequently identified as malignant after they were surgically removed on June 5, 1995. A lengthy period of chemotherapy, radiation treatment, and convalescence followed.

Bernofsky applied for disability benefits to both the Social Security Administration (SSA) and Teachers Insurance and Annuity Association (TIAA), with whom he had disability insurance since 1975. Following an appeal process in which Bernofsky's medical records were carefully scrutinized, SSA awarded him benefits that were based on a disability period of June 5, 1995 to January 1, 1997.

In contrast, Tulane took steps to deny Bernofsky's application to TIAA on the basis that he was terminated on April 21, 1995, which was prior to the identification of his disability on June 5, 1995.

Bernofsky argued that he was entitled to disability benefits because his cancer was diagnosed before the term of his yearly contract with Tulane, which ended June 30, 1995. However, Tulane insisted that Bernofsky's annual appointment letter, which was signed by the Dean, was not a true contract, and thus Bernofsky was not entitled to disability benefits. This argument was then used by TIAA to deny Bernofsky benefits. Because insurance benefits from TIAA would have had no monetary consequence for Tulane, Bernofsky contends that Tulane's actions were retaliatory in nature and were intended to inflict emotional distress and injure him financially.

Equally troubling is Tulane's dubious treatment of the contract issue. The Dean's appointment letters are clearly understood by him as well as their recipients as constituting a contract, and this is evidenced by Dean Corrigan's deposition statement of Nov. 11, 1999, page 42 (bold emphasis added).

EXAMINATION BY MR. FARRUGIA:

Q.   Are there any research professors at Tulane who have employment contracts?

A.   Do we have some, John?  [turning to John Beal]

MS. LIVAUDAIS:

You have to answer what you know.

THE WITNESS:

I don't remember.  I don't know.  I mean, of course, all of our faculty have employment contracts. [1]


Tulane Retaliated by Seizing Equipment, Supplies and Research Materials

In 1975, when Bernofsky transferred his research program from the Mayo Clinic to Tulane, he brought with him approximately $100,000-worth of equipment and supplies that had been purchased with grant funds previously awarded to him. Following his arrival at Tulane, he also used about $30,000 of his own personal funds to furnish other equipment and supplies that were needed in his research. Moreover, a portion of the $2.17 million in grant funds that Bernofsky ultimately brought to Tulane was also used to obtain equipment and supplies for his program. Only 10% or less of Bernofsky's equipment and supplies was obtained with funds supplied directly by Tulane, and Bernofsky provided Tulane with a list of these items.

Bernofsky asserts that the items acquired with his own personal funds were his own personal property and that all other items obtained with grant funds, or lent to him from other institutions, were eligible for transfer to another research facility.

On May 3, 1995, John Beal, then Assistant General Counsel at Tulane, ordered Bernofsky's office and laboratories locked, and Bernofsky was subsequently permitted to remove only personal belongings and papers from his office. All remaining equipment and supplies in his laboratories, including items that were Bernofsky's own personal property, were appropriated by Tulane and redistributed to other Tulane employees following the collapse of negotiations with the Southern Regional Research Institute for the transfer of Bernofsky's newly-funded research program.

Tulane was intent on destroying Bernofsky's research program while he was desperately attempting to salvage the products of many years of unfinished work that were located in and on the benches, shelves, refrigerators and freezers in his laboratories. At the time that Tulane locked Bernofsky's laboratories, there were numerous projects in progress.

The objective of the Air Force grant was to determine the mechanism by which a common environmental pollutant causes cancer in laboratory mice. Bernofsky's laboratory had devised a unique method that could be used in living cells to examine the free radical events that were believed to be involved in this process. When Tulane decided to confiscate the contents of Bernofsky's laboratories, leading ultimately to the destruction of his research materials, it was assisted by the District Court's order to dismiss Bernofsky's motions for a temporary restraining order and injunction. In effect, the Court cooperated with Tulane to deprive an established scientist of his career when he was on the threshold of putting into practice a major new approach in the field of cancer research that had just been funded by the United States Air Force.

Tulane Retaliated by Denying Ordinary Professional Rights

During the 4th quarter of 1995, Tulane communicated with the Program Manager of Bernofsky's Air Force grant, Dr. Walter J. Kozumbo, regarding the return of grant funds to the Air Force. When Kozumbo requested Bernofsky's forwarding address and home telephone number, Tulane feigned ignorance and would not reveal it. Bernofsky learned of this incident when he later contacted Kozumbo to discuss the failure of negotiations with Tulane for the transfer of his research program to the Southern Regional Research Institute. Earlier, Kozumbo had voiced his support for such a transfer in discussions with SRRC Director, Dr. Patrick Jordan.

Additionally, following Bernofsky's termination, Department Chair Dr. Jim D. Karam instructed his Office Manager, Ms. Carol Uhlich, to intercept Bernofsky's mail and other communications that were received in the Department. Cited below are six documented instances where important items were discarded or diverted. The full extent of this retaliatory practice is unknown.

Tulane Retaliated Through Its Adjunct Professor Judges

During the legal proceedings that followed the actions filed by Bernofsky in 1995 and afterward, Tulane had benefit of a special relationship with two of the involved judges who were also adjunct professors in its Law School. A third judge was the spouse of a professor in Tulane's School of Medicine. None of this was known to Bernofsky at the time his case was being adjudicated.

The district court judge and one of the magistrates assigned to Civil Action No. 95-358 were both adjunct professors at Tulane's Law School and were actively engaged in teaching during the time they were adjudicating Bernofsky's lawsuit against Tulane. The district court judge was also serving on the advisory board of one of Tulane's research centers. This relationship existed under a cloak of non-disclosure and in defiance of recusal laws and canons of judicial ethics.

Title 28, United States Code, Section 455(a) states:

Any justice, judge, or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.

Moreover, the Guide to Judiciary Policies and Procedures (1999 Ed., Vol. II, Chap. V, §3.4-3(a), at p. V-39) provides (bold emphasis added):

A judge who teaches at a law school should recuse from all cases involving that educational institution as party. The judge should recuse (or remit) from cases involving the university, as well as those involving the law school, where the judge's impartiality might reasonably be questioned in view of the size and cohesiveness of the university, the degree of independence of the law school, the nature of the case, and related factors. Similar factors govern recusal of judges serving on a university advisory board.

The district court judge revealed her partisanship by excluding compelling evidence presented by Bernofsky to support his case against Tulane, ruling against his every cause of action, and denying him the opportunity to have his case tried on the merits.  Judge Berrigan then taxed Bernofsky for Tulane's legal costs.

In 2000, after accepting payment from Tulane to teach a summer course in Greece, Judge Ginger Berrigan shielded the university from Bernofsky's lawsuit for retaliation and defamation by again ruling against him so that his case would not be heard by a jury. Then, as an encore after denying him his rights, Judge Berrigan once again taxed Bernofsky for Tulane's legal costs.

Bernofsky concludes that the many mean-spirited, malicious, and unethical acts committed by Tulane and its agents were intended to harm him both professionally and financially and to inflict mental anguish. Tulane's reprisals against Bernofsky took the form of a continuing pattern of defamation, slander, retaliation, and denial of due process in response to the complaints he brought against the university in January, 1995 and thereafter.

Tulane Was Found Guilty of Retaliation In a Related Case

In 1995, Professor Asher Rubinstein brought charges of discrimination against Tulane for its failure to properly compensate and promote him to the rank of full professor.  Rubinstein produced evidence that members of the committees responsible for these denials had made anti-Semitic remarks, and he filed complaints with the EEOC.  When Rubinstein protested to Dean William C. Van Buskirk that his requests for promotion and equitable pay raises were being ignored, Van Buskirk responded to the effect:  What are you going to do, sue me?  Do you know what happens to people who sue their employer? [2]  (Bold emphasis added.)

Rubinstein further claimed that Tulane retaliated against him for filing the discrimination charges.  A jury found that the Tulane administrator had indeed threatened Rubinstein with retaliation if he sued Tulane, and it returned a verdict for Rubinstein that included punitive damages for Tulane's illegal conduct [3].  Tulane then appealed.

The Fifth Circuit Court of Appeals found that Rubinstein failed to show discrimination based on religion and national origin.  On this issue, the court was confronted with the legacy of its prior ruling in Guillory, which exempted Tulane from the reach of the Fourteenth Amendment and granted Tulane discretionary license to engage in discriminatory practices [4].

However, on the issue of retaliation, the Fifth Circuit found sufficient evidence that Tulane illegally retaliated against Rubinstein for filing a discrimination lawsuit.  Accordingly, the Fifth Circuit let stand the district court's ruling against Tulane for retaliation and remanded the issue to the lower court, although it reduced the amount of the punitive damage award [5].

“The evidence indicates that Dean Van Buskirk denied Rubinstein a raise because he "hauled colleagues into court to try to resolve differences."  Whatever else this evidences, it certainly indicates a healthy disdain for Rubinstein's rights to seek redress in the courts for perceived wrongs adequate to meet the standard of reckless indifference at least, if not outright animus, toward these rights.” [6]

It is interesting that, following Rubinstein's partial legal victory in 1998, Tulane administrators actually intensified their surveillance in an attempt to discern any of Rubinstein's activities that could be used against him.  In a letter dated December 16, 1998, Tulane President Scott Cowen informed Rubinstein of charges that could lead to revocation of his tenure and dismissal from the faculty.  At issue were criticisms made by Rubinstein in a private e-mail that was intercepted by Tulane.  This intrusive form of retaliation is the subject of a new lawsuit [7].

Commentary

Aside from demonstrating Tulane's penchant for retaliation, these labor cases should be of great interest to those concerned with university governance. Tulane's policy regarding dismissal pits Louisiana's oppressive "right-to-work" labor laws against the expectations of professors to the contract-like terms specified in Tulane's Faculty Handbook.  Louisiana state courts have repeatedly ruled that Tulane's handbooks have no force of contract and are merely guidelines that can be changed by Tulane at any time (for example, see Schwarz v. Tulane).  Such rulings leave little legal recourse for professors who are unfairly targeted for dismissal.

A perennial source of confusion is the meaning of the term "tenure."  At most institutions, tenure is understood to be a sacrosanct guarantor of academic freedom that, among other things, affords professors a shield against administrative reprisals for the free and honest expression of unpopular opinions.  However, in "right-to-work" states, and at private institutions like Tulane where there is no collective bargaining, employees have no legal right to provisions articulated by the administration.  Thus, "tenure" at Tulane is a tenuous and deceptive appellation.  While it is sought after by anxious faculty and bestowed ceremoniously by administrators, the term has value only because of its status at universities where tenure has legitimate, legal meaning.

Tulane knows that, owing to Louisiana's "right-to-work" laws, it can terminate any employee for virtually any reason, regardless of his or her "tenured" status.  Tulane apparently seems unconcerned about the risk of creating unrest among its faculty members who become enlightened to this colossal academic fraud.

The lesson to professors from Schwarz and others who have been unfairly targeted is that they must extricate themselves from the climate of fear and distrust and not allow themselves to be intimidated.  Tulane's faculty needs to unite toward the common goal of replacing an abusive and authoritarian administrative structure with one based on bilateral agreements and mutual understandings that have genuine legal status in the state of Louisiana.  Mechanisms to this end are available from the American Federation of Teachers ("AFT") working in concert with the American Association of University Professors ("AAUP").  The experience of these organizations with collective bargaining has greatly benefited faculties at other universities with problems similar to Tulane's.

"The limits of tyrants are prescribed by the endurance of those whom they oppress."

-- Frederick Douglass, 1857

Footnotes

1.  Five months after Dr. Corrigan made this statement, Tulane announced his resignation as dean of the School of Medicine and reassignment elsewhere in the university ("Business people; People shaping the metro economy – Academia," The Times-Picayune, April 30, 2000, p. F-8).

2.  Rubinstein v. Administrators of the Tulane Educational Fund, et. al., 218 F.3d 392, 397 (5th Cir. 2000).  U.S. Court of Appeals for the Fifth Circuit, Case No. 98-30777, Court opinion dated July 6, 2000.

3.  John Pope, "Tulane Professor Awarded Damages," The Times-Picayune, April 18, 1998, p. B-8.

4.  Guillory v. Administrators of Tulane University of LA., 212 F.Supp. 674 (5th Cir. 1962).

5.  Rubinstein v. Administrators of the Tulane Educational Fund, et. al., 218 F.3d 392, 409 (5th Cir. 2000).

6.  Ibid., at 406.

7.  Rubinstein v. Tulane, Civil Action No. 00-123, U.S. District Court for the Eastern District of Louisiana.

 
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