Lawsuit Against Tulane University for Discriminatory Discharge
Original Brief on Behalf of Dr. Carl Bernofsky, Plaintiff-Appellant
(Case No. 97-30575, U.S. Court of Appeals for the Fifth Circuit, August 4, 1997)
On Appeal from the United States District Court for the Eastern District of Louisiana, New Orleans Division BRIEF OF APPELLANT ROGER PHIPPS #20326
EVANTHEA P. PHIPPS #19857
PHIPPS & PHIPPS
210 BARONNE STREET, SUITE 1410
NEW ORLEANS, LOUISIANA 70112
TELEPHONE NO: (504) 899-0763ATTORNEYS 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 AppellantTulane University Medical School - Appellee
(Administrators of the Tulane Educational Fund)
Mr. G. Phillip Shuler, III, Esq., Counsel for Appellee
Ms. Julie D. Livaudais, Esq., Counsel for Appellee
Mr. John Beal, Esq., Counsel for Appellee
s/ Roger Phipps
Roger D. Phipps #20326
STATEMENT REGARDING ORAL ARGUMENT Dr. Carl Bernofsky, Plaintiff - Appellant, respectfully requests oral argument on the issues presented by appeal on grounds that oral argument is appropriate and would be beneficial to the Court in light of the complicated and unique factual circumstances forming the basis of his claims.
(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 (iv) STATEMENT OF JURISDICTION (1) STATEMENT OF ISSUES (1) STATEMENT OF THE CASE (2) (2) (3) STANDARD OF REVIEW (10) SUMMARY OF ARGUMENT (11) ARGUMENT (11) (11) (11) (16) (20) (28) (33) (35) (37) (37) (44) (47) (48) CONCLUSION (49) CERTIFICATE OF SERVICE (50) CERTIFICATE OF COMPLIANCE (50)
TABLE OF AUTHORITIES Cases
Abrams v. Baylor College of Medicine,
805 F.2d 528 (5th Cir. 1986).(20) Anderson v. Liberty Lobby, Inc.,
447 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).(10) Banerjee v. Board of Trustees of Smith College,
648 F.2d 61 (1st Cir.), cert. denied,
454 U.S. 1098, 102 S.Ct. 671, 70 L.Ed.2d 639 (1981).(16) Brannan v. Wyeth Laboratories, Inc.,
526 So.2d 1101 (La. 1988).(46) Bennun v. Rutgers, 941 F.2d 154,
56 F.E.P. Cases 747, (3rd Cir. 1991).(16) (20) Berry v. Armstrong Rubber Co.,
989 F.2d 822 (5th Cir. 1993),
cert. denied, 114 S.Ct. 1067 (1994).(10) Bodenheimer v. PPG Industries, Inc.,
5 F.3d 955 (5th Cir. 1992).(10) Breaux v. Schlumberger Offshore Services,
817 F.2d 1226 (5th Cir. 1987).(38) (40) Brown v. CSC Logic, Inc.,
82 F.3d 651 (5th Cir. 1996).(34) Celotex Corp. v. Catrett,
477 U.S. 317, 106 S.Ct. 2548 (1986).(10) Central Fidelity Bank v. Gray,
422 So.2d 670 (La. App 3 Cir. 1982).(48) 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).(22) Edward Levy Metals, Inc. v.
New Orleans Public Belt Railroad,
148 So.2d 580 (La. 1963).(48) E.E.O.C. v. Manville Sales Corp.,
27 F.2d 1089 (5th Cir. 1994),
cert. denied, _____ U.S. _____,
115 S.Ct. 1252, 131 L.Ed.2d 133 (1995).(34) Glass v. Petro-Tex Chemical Corp.,
757 F.2d 1554 (5th Cir. 1985).(20) Gonzales v. Police Department of San Jose,
901 F.2d 758 (9th Cir. 1990.(32) Graefenhain v. Pabst Brewing Co.,
827 F.2d 13 (7th Cir. 1987).(27) Grizzle v. Travelers Health Network, Inc.,
14 F.3d 261, 267 (5th Cir. 1994).(22) Gutzwiller v. Fenik,
860 F.2d 1317 (6th Cir. 1988).(29) (32) Jones v. Flagship International,
793 F.2d 714, 727-28 (5th Cir. 1987).(22) Kunda v. Muhlenberg,
621 F.2d 532 (3rd Cir. 1980).(16) Lam v. University of Hawaii,
40 F.3d 1551, 66 F.E.P. Cases 75 (9th Cir. 1994).(32) McDonnell Douglas Corp. v. Green,
411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).(16) Normand v. Research Institute of America,
927 F.2d 857 (5th Cir. 1991).(34) Peloguin v. Calcasieu Parish Police Jury,
367 So.2d 1246 (La. App. 3rd Cir. 1979).(48) Portis v. First National Bank of New Albany MS,
34 F.3d 325 (5th Cir. 1994).(14) (37) Quealy v. Paine, Weber, Jackson & Curtis,
475 So.2d 756 (La. 1985).(48) Roebuck v. Drexel University,
825 F.2d 715 (3rd Cir. 1988).(29) Saint Francis College v. Al-Khazraji,
481 U.S 604 (1987).(5) Shaare Tefila Congregation v. Cobb,
481 U.S. 615 (1987).(5) Sinai v. New England Telephone,
3 F.3d 471, 62 F.E.P. Cases 1202 (1st Cir. 1993).(32) Wilson v. Monarch Paper Co.,
939 F.2d 1138 (5th Cir. 1991).(34) Zahorik v. Cornell University,
729 F.2d 85 (2nd Cir. 1984).(12)
Rules and Statutes
28 U.S.C. Section 1331 (1) 28 U.S.C. Section 1337 (1) 28 U.S.C. Section 1291 (1) 42 U.S.C. Section 1981 (20) Louisiana Age Discrimination in Employment
Act ("LADEA"), La. R.S. 23:971 et seq.(2) The Federal ADEA in Employment Act,
29 U.S.C. Section 623 et seq.(2) La. Civ. Code art 1967 (1) (2) La. Civ. Code art 2315 (1) (2) (48) La. Rev. Stat. 30:2027 (2) (3) (48)
STATEMENT OF JURISDICTION This is an appeal by Dr. Carl Bernofsky ("Bernofsky"), a plaintiff in a civil case. The district court had jurisdiction of the case on the merits pursuant to 28 U.S.C. Section 1331 and 1337. The court entered a judgment in favor of defendant, Tulane University Medical School ("Tulane"), on April 22, 1997. Bernofsky filed a notice of appeal timely (R.2519). This Court has jurisdiction pursuant to 28 U.S.C. Section 1291.
STATEMENT OF ISSUES I. Genuine issues of material fact are in dispute with respect to each of Bernofsky's claims of discrimination: 1) failure to promote/denial of tenure, 2) harassment, retaliation and interference during employment, and 3) discharge brought under 42 U.S.C. Section 1981; and 1) retaliatory discharge, and 2) discriminatory discharge brought under 29 U.S.C. Section 623 et seq. and/or La. R.S. 23:972-975; these material facts taken as a whole create a reasonable inference that race or age was a determinative factor in the employment action taken by Tulane against Bernofsky; that Tulane's stated reason was not the motivation for its action, and that, more likely than not, Tulane's employment action against Bernofsky was because of his race or age.
II. Genuine issues of material fact are in dispute with respect to Bernofsky's state law claims alleging: 1) breach of contract, 2) detrimental reliance under La. Civ. Code art 1967, 3) conversion under La. Civ. Code art 2315, and 4) environmental retaliation under La. Rev. Stat. 30:2027 such that summary judgment is unwarranted.
STATEMENT OF THE CASE A. Course of Proceedings and Disposition in the Court Below
On January 31, 1995 Bernofsky filed suit alleging discrimination under 42 U.S.C. Section 1981 and state law claims under La. Civ. Code arts. 1967, 2315, 2315.3, La. R.S. 30:2027 B(1) and breach of contract (R.304). Facts supporting each claim were set forth in the original complaint (R.310-11 ¶ 50). A Temporary Restraining Order and a Preliminary Injunction were filed on February 7, 1995 with Bernofsky's affidavits (R.215, 225, 260, 271). A hearing was held on February 15, 1995 (R.598). The preliminary injunction remained under advisement. Status quo was ordered with parties to schedule settlement conference with magistrate (R.836). The parties were unable to resolve their differences (R.806).
A First Amended Complaint was filed on February 27,1995 adding a claim under La. R.S. 23:972-75 (LADEA) and factual allegations supporting his age claim (R.823, 829, 831-33).
On April 10, 1995, Bernofsky's Motion for a Preliminary Injunction was denied (R.782). The trial date of January 22, 1996 (R.776) was continued to July 8, 1996 due to Bernofsky's diagnosis of cancer (R.768, 730).
A Second Amended Complaint was filed on November 21, 1995 adding an ADEA claim and a claim for conversion of laboratory equipment and materials (R.695, 706).
Tulane filed a Motion for Summary Judgment on May 14, 1996 (R.1101), and a Reply Memorandum on May 31, 1996 (R.1814). Bernofsky filed an Opposition Memorandum to Summary Judgment on May 21,1996 (R.1341, 1560), and a Reply Memorandum opposing summary judgment on June 5, 1996 (R.1741).
In response to issues raised by the District Court, Bernofsky filed a Supplemental Memorandum opposing summary judgment on July 1, 1996 (R.2263, 1645) and a Memorandum in Response to Court's Request (R.2429) with a letter setting forth each of his claims (R.2617). Tulane delivered a Pre-trial Memorandum to Bernofsky on July 1, 1996 (R.2392, 2410). He responded on July 2, 1996 (R.2361, 2370). A status conference was held July 5, 1996 and trial was continued (R.2260). Summary judgment was granted (R.2579) on April 15,1997. A final judgment was rendered on April 21, 1997 (R.2577). Bernofsky filed a timely Notice of Appeal on May 9, 1997 (R.2519).
Bernofsky is a respected research biochemist who remained at Tulane for nearly 20 years, painstakingly building a research program. In 1977, Bernofsky was promised that he would become tenured by his Department Chairman, Dr. Rune Stjernholm ("Stjernholm") (R.1756, 1796-97, 1533-37). Until he was replaced by the new Chairman, Stjernholm continued to promise Bernofsky that he would become tenured (R.1173-76). The contract between Tulane and Bernofsky, i.e., the 1976 Faculty Handbook, provided to Bernofsky when he first arrived at Tulane, stipulated that conversions to regular appointments could occur at any time (R.539-41, 1183, 548-49).
In 1991, Dr. Jim D. Karam ("Karam") became the new Chairman of the Department of Biochemistry. After Bernofsky requested the promised tenure from his new Department Chairman, he began to be harassed (R.2384-85). Bernofsky's research efforts were hampered until he lost funding (R.1359-65). Bernofsky was evaluated by a method that did not comply with the requirements set out by the Dean (R.527-28, 1366-1370). The evaluation was conducted in an improper manner (R.2279-83), and discrimination infected the entire process (R.2309). Based upon the discriminatory review (R.92-96), Karam claimed that Bernofsky's 1994-95 appointment was conditional, and that he must secure new grant funding (R.101). Despite the fact that Bernofsky did secure a new $250,000 Air Force grant to support his research program before Tulane's imposed deadline, he was terminated (R.91, 1326).
In 1992, Bernofsky had been awarded a grant from the Louisiana Education Quality Support Fund ("LEQSF") for $250,000 to purchase a sophisticated scientific instrument, an electron paramagnetic resonance spectrometer ("EPR"), needed in his research (R.1485-88, 450). Bernofsky voluntarily taught an advanced course in biochemistry for 16 years (R.196). Throughout his career, Bernofsky published in respected scholarly journals and continued publishing following his termination (R.2054, 2065-69). Bernofsky is Jewish.(1) At the time of his termination, he was 61 years old.
Bernofsky has alleged several claims based on race: 1) He was denied tenure; 2) He was harassed, his research program was interfered with, and he was retaliated against; 3) He was discharged.
Bernofsky has claimed that Tulane's decisions are also based on his age. After he asked Karam to recommend his name for official tenure, long promised to him, he began to experience harassment and interference with his research program (R.1795). Bernofsky claims that Karam retaliated against him because of his request for tenure (R.1795). Alleged problems with Bernofsky's performance began after he asked Karam about tenure (R.1795). Dr. Bernofsky also claims that his discharge was unlawfully based on his age.
Indisputably, only other senior Jewish professors have been ousted from the Biochemistry Department following Karam's appointment as Chairman (R.2361-62). This pattern supports Bernofsky's claims that Tulane's actions against him were based impermissibly on race and/or age (R.2361-62).
Eminent scholars in his field have attested to Bernofsky's qualifications as a scientist and to the outstanding quality of his work as evidenced by his funding record and publications (R.1408-1410). According to Professor Dr. Willem Koppenol ("Koppenol"), Chairman of the Institute of Inorganic Chemistry, Swiss Federal Institute of Technology, Zurich, Bernofsky's work is respected by other leaders in the free radical field (R.1408). Similarly, a leading free-radical scientist in the U. S., Dr. Garry R. Buettner ("Buettner"), attested to the quality of Bernofsky's work as evidenced by his funding record and successful effort in bringing a $250,000 EPR instrument to Tulane (R.1410).
A similarly-situated research professor, Dr. Su-Chen Li ("S-C Li"), has been retained. Tulane's Director of Grants and Contracts, Sheryl Gros, admitted that S-C Li has no grant funding in her own right and has never generated a grant award on the strength of her own credentials (R.1512, 1370-71). Stjernholm admitted that S-C Li has no teaching responsibilities of her own (R.2318-19). Another similarly-situated research professor, Dr. Jen-sie Tou ("Tou"), was converted in 1989 with an immediate grant of tenure despite being on a tenure track from 1972 to 1980 and on research status for another nine years (R.1437, 1440, 1435). Tulane applied a different standard in its tenure decision to Bernofsky, a senior Jewish faculty member, than to Tou who lacked grant support and had fewer publications (R.2353-54). Bernofsky was treated much less favorably.
Bernofsky and Tou were both recommended for tenure at about the same time (R.1434, 1430), and both held research professorships from 1980 to 1988. During that period, Bernofsky brought about $682,351 in research funds to Tulane, including over $175,000 for covering Tulane's overhead expenses (R.1434). In contrast, Tou brought in $64,858 (R.2353). Additionally, Bernofsky had many more pages of research published than did Tou (R.2353, 1447, 353). However, unlike Tou, Bernofsky's name was not forwarded for consideration to the appropriate committee when his name was recommended for tenure by Stjernholm (R.2323). In fact, the entire process was kept secret from him (R.2362).
Because of the fact that Bernofsky was discriminatorily denied tenure, he was treated differently from other professors, who received support in the form of stipends to pay graduate students working in their laboratories and funds to cover the salaries paid to their technical and postdoctoral assistants (R.194-95). Had the grant money Bernofsky paid to cover his own staff been available for support of his own salary, Tulane would not be able to assert that he cost the Department money or was not an asset in a business sense (R.2333-38).
Harassment and interference were also directed against two other senior Jewish faculty members. Dr. William Cohen ("Cohen") accepted early retirement (R.2364-65). Dr. Melanie Ehrlich ("Ehrlich") had her laboratories reassigned out of the Biochemistry Department (R.2136). At her deposition, Ehrlich testified that she believed Karam's discrimination against her "may well [have] a Jewish component (R.2383)."
Despite his qualifications as a Research Professor, Tulane terminated Bernofsky and retained and hired less-qualified faculty in the Biochemistry Department (R.2355-60). Following his termination, Bernofsky immediately set out to transfer his new $250,000 Air Force grant to another institution and to seek a comparable position elsewhere (R.1328-36, 1326). Six weeks after his termination, Bernofsky was diagnosed with cancer (R.680).
Additionally, Bernofsky has alleged detrimental reliance under Louisiana law. His former Chairman made representations to him that he would become tenured (R.1173-76, 1183). Relying on these representations, Bernofsky focused his efforts on building his program at Tulane; he brought a $250,000 EPR instrument to the Medical School and endeavored to further the development of a free radical research program at Tulane (R.1178-86). Bernofsky did not undertake a major effort to move his program elsewhere. Subsequently, when he was discharged at 61 years of age, based on a review that failed to follow University guidelines, he suffered damage (R.273-74, 1574, 1602, 2337).
In addition to representations by Dean Hamlin and Stjernholm, Karam informed Bernofsky that he had de facto tenure because he had been at Tulane for so long (R.194). This explanation in response to Bernofsky's request that Karam recommend his name for official tenure paralleled the 1976 Faculty Handbook provisions on tenure (R.2372, 1183). Subsequent to these conversations with Karam, Bernofsky secured additional grant funds from the Air Force in the amount of $250,000 (R.2335, 273, 302-3).
Bernofsky alleges that under the terms of the contract governing his relationship with Tulane, he is tenured (R.2372, 1183, 1178, 548-49). The Dean and his former Department Chairman confirmed in writing that he would become the next tenured faculty member in the Department (R.1533-38). At the time of Tou's conversion, correspondence between the Dean, the Chancellor, and others on the Personnel & Honors Committee stated that an appointment in excess of seven years automatically carries tenure (R.1539, 1437, 1431). Tou's 14-year probationary period was the major factor leading to her grant of tenure (R.1440). Subsequent to the representations that Bernofsky would become tenured, his appointment carried the "prospect of tenure" (R.1533-37, 1183, 1539). Under the contract, such an appointment in excess of seven years automatically carries tenure (R.1539 Art. III S.3&5, 548-49). After seven years, Bernofsky could be dismissed only by following the dismissal procedures set forth in the contract applicable to tenured professors (R.1540, 548-49). Bernofsky brought to the School over $2 million in grant funds with about $600,000 going to cover overhead costs associated with making research space available (R.2335-36).
Bernofsky complained about a serious environmental hazard: wastes consisting of animal hair and tissue, blood, and chemicals raining down from the laboratories above (R.2367-68). His concerns were ignored, and Karam accused Bernofsky of "harping" on the matter (R.1603). Shortly thereafter, he was terminated. The hazardous and/or toxic substances (including blood-borne pathogens) were improperly handled and stored by Tulane in a reckless manner without concern for the safety of the public, which included Bernofsky and his staff (R.2367). Karam also retaliated against another senior Jewish professor, Ehrlich, after she complained about an environmental hazard (R.2305-07).
Finally, all of the equipment and supplies Bernofsky brought with him to Tulane or purchased with grant or personal funds was seized by Tulane when he was locked out of the laboratories previously assigned to him (R.1802, 1327-33). This exercise of control over Bernofsky's equipment and supplies greatly impairs his ability to conduct research or be considered a viable candidate for relocating his research program and has added to his injury (R.2335-36).
STANDARD OF REVIEW This Court reviews summary judgments de novo. Berry v. Armstrong Rubber Co., 989 F.2d 822 (5th Cir. 1993), cert denied, 114 S.Ct. 1067 (1994). Bodenheimer v. PPG Industries, Inc., 5 F.3d 955 (5th Cir. 1992). The party seeking summary judgment must demonstrate its entitlement to judgment as a matter of law and that no genuine issue of material fact exists by showing that there is an absence of evidence to support the non-moving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2553 (1986). A dispute about a material fact is "genuine" if the evidence is such that a reasonable jury could return a verdict for the non-moving Party. Anderson v. Liberty Lobby, Inc., 447 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). The Court must draw all justifiable inferences in favor of the non-moving party. Id. at 255, S.Ct. 2513.
SUMMARY OF ARGUMENT Summary judgment was unwarranted with respect to each of Bernofsky's discrimination claims and state law claims. The district court ignored specific facts in the record showing the existence of a genuine issues of material fact for trial. Bernofsky established a prima facie case of racial and age discrimination by showing that he was qualified and that persons outside the protected class at Tulane received more favorable treatment. Also, Bernofsky offered facts which taken as a whole: 1) create a fact issue as to whether Tulane's stated reason was not the motivation for its employment action taken against him, and that, more likely than not, Tulane's employment action against his was because of his race or age; or 2) create a reasonable inference that race or age was a determinative factor in the employment action taken by Tulane against Bernofsky.
ARGUMENT I. Bernofsky Raised A Genuine Issue Of Material Fact For Trial Concerning His Claims Of Race And Age Discrimination.
A. Bernofsky Was Qualified Under McDonnell Douglas.
Tulane states that the crucial elements for the position of Research Professor are: research grant funding, publication of quality research results, involvement in Departmental activities and collegiality (R.1123). According to Tulane, "it had become abundantly clear that [Bernofsky] had lost his ability to acquire funding and was not publishing in scholarly journals. His inability to generate funding was a direct reflection on the quality of his research and publication" (R.1124-25).
Zahorik v. Cornell University, 729 F.2d 85, 94 (2nd Cir. 1984) provides:
Given the particular nature of appointments, renewals and termination decisions in academia, it has been held that 'a prima facie case that a member of a protected class is qualified for tenure is made out by showing that some significant portion of the departmental faculty, referents or other scholars in that particular field had a favorable view on the question.'
Under Zahorik, Bernofsky may employ referents or other scholars in the particular field to assist in making a prima facie case.
An eminent scholar in the "free radical field," Koppenol, testified that Bernofsky's work is "important" and "significant," that Bernofsky is a productive scientist publishing in well-respected journals, and that his recent work is respected by other leaders in the "free radical field" (R.1742, 1408). Other prominent scholars, Drs. Garry Buettner and Al Tappel offered similar assessments (R.1349-50, 1408-11).
Koppenol testified that he is familiar with Bernofsky's work from 1985 to the present, the timeframe during which Tulane claims Bernofsky became nonproductive and failed to publish in scholarly journals (R.2065, 2069-70). When asked by Tulane whether he had any knowledge of Bernofsky's job performance at Tulane, Koppenol stated, "I can have an opinion based on his scientific output, which he publishes and which is open to the record" (R.2070-71). He further stated that his knowledge concerning the quality of Bernofsky's work comes from reading his papers (from 1989 - 1995) as, "that is the way one communicates in this field, one reads one another's papers" (R.2069). Koppenol(2) reviewed all the work which Bernofsky submitted to Tulane's Review Committee (R.2069).
Unlike Tulane's reviewers, Koppenol and Buettner are experts in the field of "free radicals" and actually read Bernofsky's work (R.2062-63, 2069, 1410-11). The members of the Tulane Review Committee charged with evaluating Bernofsky's work have admitted that they did not actually bother to read Bernofsky's publications; were generally unfamiliar with the quality of the journals in which Bernofsky's work was published; and did not know that the publications were in peer reviewed journals (R.2279-81).
Regarding grant funding, Stjernholm, the Department Chairman throughout most of Bernofsky's employment at Tulane, admitted in his deposition he never told Bernofsky his primary obligation was to provide salary support for his position (R.1744, 1765). Bernofsky's grant funding fell off as a result of Karam's interference and harassment (R.1181 pp. 26-27, 1184 pp. 65-66, 1359-64, 1421, 1584-87).
Bernofsky is entitled to "all reasonable inferences" including that if his staff had not been interfered with and ultimately terminated, and if he had been able to use the EPR in a timely manner, he would not have lost his NSF grant and would have been able to continue generating grand funding as he had done prior to Karam's arrival. Portis v. First National Bank of New Albany MS, 34 F.3d 325 (5th Cir. 1994.)
Despite the District Court's contrary assertion, Bernofsky received a grant in the amount of $250,000 from the Air Force to support his research program before he was terminated. This grant was secured despite formidable odds created by Tulane (R.1325, 456).
Bernofsky taught a course at the Tulane University Medical School for at least sixteen years in advanced Biochemistry (R.1518); received many grants from the National Institutes of Health ("NIH") and National Science Foundation ("NSF"), among others, to conduct his research (R.362-63, 2339); was invited for the last five years to participate in Gordon Conferences(3) and present papers concerning his research (R.359); was invited to attend the International Symposium on Spin Trapping, an elite conference of researchers (R.359); and secured over $2 million to support his research from extramural funding (R.2335).
Tulane admits a faculty member is deemed to have a national reputation if he secures recommendations from four persons at three other schools (R.1831). Bernofsky attached recommendations from four eminent scholars at four other institutions in his Opposition to Summary Judgment (R.1408-11, 651). Additionally, when he was promoted to Research Professor in 1985 he submitted letters from five other internationally-recognized experts attesting to his qualifications.
Bernofsky was a member of University and Medical School Committees such as the EPR Advisory Committee (as Chairman), the Task Force on Environmental Management, and the Senate Committee on the Coordinated Instrumentation Facility (R.1755). Before Karam's arrival, he also served on the Departmental Computer Committee and Tissue Culture Committee (R.1795, 1741, 1755). Regarding other Departmental activities, Bernofsky testified that he was willing to teach if Karam would simply address the tenure issue (R.1519). Bernofsky was removed from the Departmental Computer and Tissue Culture Committees and excluded from various activities by Karam (R.1795, 1741).
Tulane asserts that Bernofsky failed to assume committee responsibilities as required. However, Tulane knows that departmental committee appointments are the prerogative of the department chairman. If Bernofsky did not serve on Departmental Committees after Karam's arrival, it was because Karam did not reappoint Bernofsky to any Committees (R.1755).
Regarding collegiality, Bernofsky successfully put together an EPR application which had five other collaborators (R.430). Prior to Karam's arrival there were no charges of non-collegiality against Bernofsky. Upon deposition, S-C Li stated, ". . . no problem with Bernofsky"; Dr. Barbara Beckman, when asked if she found Bernofsky collegial stated, "Yes". Similarly, Dr. Floyd Domer, when asked if he considered Bernofsky collegial stated, "Sure" (R.2315-17).
B. Tulane's Discriminatory Denial Of Tenure Was Based On Race.
In the context of a discriminatory denial of tenure, in order to satisfy the qualifications element of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), a plaintiff
"need only show that he was sufficiently qualified to be among those persons from whom a selection, to some extent discretionary, would be made. That is, he need show only that his qualifications were at least sufficient to place him in the middle group of tenure candidates as to whom both a decision granting tenure and a decision denying tenure could be justified as a reasonable exercise of discretion by the tenure-decision making body." [quoting Banerjee v. Board of Trustees of Smith College, 648 F.2d 61, 63 (1st Cir.), cert. denied, 454 U.S. 1098, 102 S.Ct. 671, 70 L.Ed.2d 639 (1981)].
See: Bennun v. Rutgers, 941 F.2d 154, 56 F.E.P. Cases 747, 762 (3rd Cir. 1991); Kunda v. Muhlenberg, 621 F.2d 532 (3rd Cir. 1980).
The court accepted Tulane's assertion that a Research Professor can be converted to a tenured position only within the first seven years of employment (R.2590). However, a similarly-situated faculty member, Tou, was converted to tenured status after 18 years of employment at Tulane, notwithstanding her lack of grant support and publications (R.1435, 2335, 2353-54).
In 1976, Tou was denied admission to the Graduate Faculty because of lack of scholarship (R.1432). In late 1977, she was recommended by Stjernholm for promotion to associate professor with tenure despite the fact that the recommending committee characterized her teaching as ". . . sterile and unimaginative" and her research as ". . . of average quality . . ." and ". . . limited in scope," and despite the fact that she had been denied admission to the American Society of Biological Chemists (R.1432). Tou's promotion to associate professor was denied by the Personnel & Honors Committee.
In 1979, Stjernholm tried again to get tenured status for Tou, this time supporting her application with letters from four of her former teachers. Nevertheless, the Executive Faculty denied her the grant of tenure. Dean Hamlin, however, extended her tenure-track status another three years.
The following year, Stjernholm again took up the case of tenure for Tou, and once again it was denied by the Executive Faculty who ruled that she be reappointed as a research associate professor. In confirming this change of status, Dean Hamlin sent Tou an appointment letter stating, "This research associate position cannot lead to academic tenure . . ." (R.1482).
Until she was awarded tenure, Tou continued to receive reappointment letters with specific language that stated that her position could not lead to tenure (R.1458-59, 1464-84). Similar statements appeared in several of Bernofsky's annual appointment letters and repeatedly cited by Tulane as proof that tenured status for Bernofsky was never possible.
During the next nine years, while Tou was a research associate professor, essentially all of her salary was paid from Departmental and other sources available to Stjernholm, while her research efforts were funded by small grants from local agencies (R.1447, 1450-51). In January, 1989, Stjernholm again tried to secure tenure for Tou. Dean Hamlin wrote to Chancellor Walsh, "In looking at the number of years that Tou has served on the faculty, I feel that if she is converted to a regular appointment that this would require that she be given automatic tenure" (R.1431). Both Chancellor Walsh (R.1437) and President Kelly (R.1436) concurred, and thus Tou became a tenured member of the Department of Biochemistry faculty (R.1435). Tulane's recognition of her automatic tenure was based on her number of years at Tulane (R.1431). The fact that Tou had previously been on tenure-track unsuccessfully and was permitted to remain at Tulane in a research position rather than being required to leave does not provide a basis for the court's determination that Tou and Bernofsky were not similarly situated (R.1437). Moreover, the more favorable treatment that Tou received does not negate Bernofsky's claim that his less favorable treatment was more likely than not based on his race (R.1437).
Tulane's discrimination against Bernofsky is demonstrated by the fact that his Chairman, Stjernholm, did in fact recommend him for tenure at about the same time that he recommended Tou, citing Bernofsky as, "...an intensely dedicated researcher and superb lecturer" (R.1434). However, Bernofsky's recommendation for tenure was apparently tabled by the Dean instead of being sent to the Personnel & Honors Committee, and the entire matter was kept secret from Bernofsky until discovery revealed the incriminating document (R.1434, 2374).
Tulane's discrimination against Bernofsky is further revealed by comparing his accomplishments with those of Tou during the same nine-year period they both held research professorships (R. 2353-54). From 1980 to 1988, Bernofsky had raised $667,626 in grant funds from external sources and paid 36.2% of his own salary, whereas Tou had raised only $64,858 in grant funds and paid, at most, 5.6% of her own salary (R.2353). Bernofsky published nearly four-times as many pages of research as Tou (R.2353).
Tou's academic achievements had been rated borderline by Tulane Committees, and she was never able to attract major funding from national granting agencies on the strength of her own research accomplishments; nonetheless, her research position was converted with an immediate grant of tenure (R.1447-52). In contrast, Bernofsky was treated differently and held to a higher standard than Tou, who was similarly situated (R.1412-22).
As further evidence of disparate treatment, Bernofsky was not even notified that his name had been recommended for tenure until his personnel file was produced to him in March of 1996 (R.2374). If this recommendation had been properly forwarded to the Personnel and Honors Committee in 1989 and tenure had been denied, Bernofsky would have been entitled to invoke the University appeal process (R.2374). At the time that Tou and Bernofsky were recommended for tenure, Bernofsky already held the rank of full Research Professor (R.1412). He had been promoted to full professor, in part, on the strength of letters of recommendation from extramural colleagues and internationally-recognized experts. In contrast, Tou's letters of recommendation were merely from her former professors (R.1441-46). The Bennun court noted that letters of recommendation from world renowned scholars provided objectively that Bennun was qualified for the position he sought. Id. at 762.
All of these facts show that Tou was treated more favorably than Bernofsky. In Bennun v. Rutgers, 56 F.E.P. Cases at 763, similar circumstances persuaded the court that the reason Rutgers assigned for denying Bennun's promotion, the poor quality of his research, 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.
Tulane's denial of tenure to Bernofsky and its subsequent harassment and retaliation culminating in discharge form a "continuing violation" under both 42 U.S.C 1981 and the ADEA. Glass v. Petro-Tex Chemical Corp., 757 F.2d 1554 (5th Cir. 1985); Abrams v. Baylor College of Medicine, 805 F.2d 528 (5th Cir. 1986).
C. Tulane's Harassment, Retaliation, and Interference During Bernofsky's Employment Was Based On Race.
Soon after Karam arrived at Tulane, on November 1, 1991, he took adverse actions against all three Jewish faculty members (R.2362). Within the first two weeks, he asked both Bernofsky and Cohen to move out of their offices (R.2361-62, 2372-73, 1187, p. 178). Relocating the very large number of files containing grant information, catalogs, research documents, a library of 15,000 reprints, professional books, etc. was a great burden (R.2373). In Bernofsky's case, this dislocation took months to overcome because he was required to move into a smaller area that required remodelling. Neither Cohen nor Bernofsky willingly moved.
Before Karam arrived at Tulane, he wrote an inflammatory letter to Ehrlich accusing her of improper behavior (R.2292). The Senate FTFR Committee cited Karam for non-collegiality, partially as a result of this letter (R.2292). Karam also wrote a letter to Dean Fulginiti stating that, "he would have liked to propose a faster rate of faculty turnover . . . to expedite faculty turnover . . ." (R.1649).
After his arrival, one professor with a substance abuse problem was retired. Three Jewish professors were the other expedited turnovers. Cohen was retired, Bernofsky was fired, and Ehrlich was ousted by being physically removed from within the Department (R.2362, 1786-87).
In December 1991, Stjernholm handed Ehrlich a "form letter" or "XXX" letter which a "secret committee," organized by Karam to "deal" with Ehrlich had used (R.1653). The form letter, which is believed to have been written by Karam, sets out a "formula" for discrediting a professor within the Department (R.1653). The "formula" as applied to both Bernofsky and Ehrlich focused on creating the impression that "XXX" had serious personality flaws which caused problems in interpersonal relationships and collegiality (R.1653). The same pattern of allegations and false charges lodged by Karam against Bernofsky was also lodged against Ehrlich (R.186-190). Karam accused both Bernofsky and Ehrlich of refusing to cover large grant overdrafts (R.2336, 2130, pp. 58-59, 187).
Prior to Karam's arrival, Ehrlich consistently had the first or second highest grant funding, and Bernofsky had the third highest grant funding in the Department (R.2293). After Karam arrived, he repeatedly accused both Bernofsky and Ehrlich of refusing to provide his office with copies of grant applications and other paperwork or of adhering to strict office procedures (R.1180).
After Bernofsky requested the long promised tenure(4), in effect, a request for a promotion, 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 out by the Dean, and he was terminated, despite the fact that he secured a $250,000 Air Force grant to support his research program before the deadline established by Tulane for obtaining new grant funds.
The most egregious instance of Karam's obstruction and interference involves the EPR spectrometer. Bernofsky put together a proposal to the Louisiana State Board of Regents ("Regents") for funds to purchase an EPR for use at Tulane University Medical School for "free radical" research (R.1485-88, 450). The Regents awarded Bernofsky's proposal $250,000 (termed an "LEQSF" award) (R.1485). The LEQSF cover page listed Bernofsky as the Principal Investigator/Project Director(5) (R.1485).
Karam's appointment to the Chairmanship of the Department of Biochemistry coincided with the Regents' award. Karam delayed the project for nearly eighteen months behind the projected schedule (R.154-155, 1184, pp. 65-66). Initially, Karam's interference caused the EPR to remain on a loading dock in its crates for a period of about a year (R.154-55). During that time, Bernofsky was not allowed to proceed with installation of the EPR and was repeatedly forced to request additional time from the Regents (R.154-55). Installation went forward only after the Regents threatened to rescind the award (R.176). Once the EPR was finally installed, Karam effected Bernofsky's removal as Principal Investigator and transferred authority over the EPR to another department headquartered on the Uptown campus (R.167, 1843).
This eighteen month delay was devastating for Bernofsky because it overlapped with a NSF grant awarded to Bernofsky for the express purpose of "free radical" research, which required use of the EPR (R.154, 1188, p. 183). The NSF grant in the amount of $243,000 was not renewed due to lack of progress on "free radical" research(6) (R.154, 1188, p. 183, 1184, p. 65-66). Additionally, the eighteen month delay coincided with the employment of a highly-trained EPR researcher whose salary was paid by Bernofsky's grant funds and whose full expertise could not be harnessed without a working EPR (R.1185, pp. 158-59). When Bernofsky was prevented from using the EPR machine, the delay insured that his NSF grant, the backbone of his grant support, would not be renewed (R.1421-22).
Karam also interfered with Bernofsky's staff (R.1587-88). Due to nonrenewal of the NSF grant, Bernofsky had no funds to pay his research associates, Drs. Ratnayake Bandara ("Bandara") and Yan Tang ("Tang")(7) (R.1587). Despite this, Bandara and Tang, agreed to continue working at a minimal salary in order to see their research projects to completion (R.1588, 1491). Karam refused to permit these researchers to work at minimal salaries that Bernofsky would pay from his personal funds(8) (R.1491, 1588). The refusal to allow Bandara and Tang to complete their work hindered Bernofsky's ability to publish the results of his research efforts and also damaged Bandara and Tang, who had devoted significant portions of their careers to work for which they would now receive no recognition (R.1537-38, 1492).
After Karam arrived at Tulane, there was an abrupt change in Bernofsky's ability to acquire research funds from sources over which Tulane personnel exercised control. This new difficulty corresponded to conversations with Karam concerning tenure and with Bernofsky's complaints about delays in the installation of the EPR. For example, in 1994, Tulane had funds to distribute from a Department of Defense ("DOD") multi-million dollar block grant (R.459). Bernofsky's proposal was well received by DOD personnel; however, after Tulane exercised its input into the selection process, his proposal was determined to be "not relevant" to the DOD and was rejected (R.183). Bernofsky then submitted virtually the identical proposal directly to a DOD agency that did not require Tulane input (R.488). The proposal was so well received that the DOD agency suggested that he triple the amount of funds requested to $250,000 and resubmit the proposal (R.517). Bernofsky received notice Feb. 3, 1995 from the Air Force that he had been awarded the grant (R.864-5).
Ehrlich, another senior Jewish professor, filed grievances against Karam for calling her laboratories "ratholes"(9) (R.2308, 187). This insult was no innocent remark (R.2308). Moreover, Karam, in front of his staff, told Ehrlich that she should "leave the dept, leave the school" and suggested that he would "kick her out of here" (R.1497). He subsequently had her removed from the laboratories long assigned to her in the Biochemistry Department (R.1786-87). Karam and his Office Manager, Carol Uhlich, also humiliated Ehrlich's research staff (R.187-88, 1180).
Cohen, also a senior Jewish faculty member, had his teaching responsibilities and committee assignments taken from him (R.2382). He accepted early retirement but did not receive Emeritus status as did the two previous non-Jewish professors who retired (R.2382). Clearly, faculty members outside the protected class were treated more favorably than the senior Jewish faculty members.
Karam ignored environmental problems affecting Bernofsky and Ehrlich (R.2367-68, 2305). Bernofsky complained about blood, animal hair and tissue, and chemicals raining down into his laboratory from the floor above (R.2367-68). Rather than attempting to remedy the environmental problem, Karam focused the blame on Bernofsky and complained of Bernofsky's "harping" (R.1843, 1603). Karam then sought to have Bernofsky reprimanded at grievance proceedings (R.1840, 1843).
Ehrlich's experiences concerning environmental problems were similar to Bernofsky's. In Ehrlich's case, noxious discharges were ducted from Karam's new laboratory into her office (R.2305-06). When Ehrlich complained, no corrective action was taken by Karam until she wrote to Environmental Health and Safety (R.2305-07). Then Karam stalled the requisition to pay for the new duct work necessary to remedy the problem (R.2305-07).
Examples of circumstantial evidence are to be cumulated. See Graefenhain v. Pabst Brewing Co., 827 F.2d 13, 20 (7th Cir. 1987) (to do otherwise would "render meaningless the indirect method of proof").
Bernofsky's harassment and retaliation led to a temporary loss of grant support and adversely affected the conditions of his employment and his ability to perform his job. It also gave rise to a purportedly legitimate reason for his discharge. The harassment and retaliation impaired his ability to enforce his employment contract (R.548-49).(10)
D. Tulane's Discriminatory Discharge Was Based On Race.
In May, 1994, Karam handpicked a "Faculty Review Committee" to examine Bernofsky's performance. The review of Bernofsky did not follow the procedures set forth for "Faculty Development and Review" as communicated by Dean James Corrigan (R.1500). According to these official guidelines, a faculty member is entitled to choose up to two members of the Review Committee, submit three letters from peers at other institutions, challenge the findings of the Review Committee, and have the Personnel & Honors Committee examine and comment on the final report (R.1501). None of these procedures were followed by Bernofsky's Faculty Review Committee (R.191, 1513, 1590-91).
The "objective basis," according to Tulane, proving Bernofsky's disqualification is derived from "the specially appointed peer review committee, established by Karam to review Bernofsky's performance in the Department of Biochemistry in order to determine if he was qualified for the position of Research Professor" (R.849).
The Review Committee was composed of Drs. Rune Stjernholm, Richard Steele ("Steele"), and Yu-Teh Li ("Y-T Li") (R.1190). To evaluate Bernofsky's work, the Committee relied upon Steele, who admitted that he had not read Bernofsky's work under review. Steele stated, "I'm not sure at that time I went back and read any papers" (R.2280). Stjernholm stated, "I don't know what Bernofsky has done the last two years, because I haven't followed it" (R.2279). Y-T Li, in response to, "So you relied primarily on Steele?", admitted, "I think so" (R.2280).
Aside from not having any expertise in Bernofsky's field, Y-T Li didn't get along with either Ehrlich or Bernofsky (R.1513, 2300, 2302). Karam was aware of this, but nonetheless selected him to review Bernofsky's work (R.1513).
In a letter, Y-T Li wrote that he hoped for a "long term solution" to the problem of Ehrlich (R.2302). When Y-T Li was asked whether he liked Bernofsky he replied, "No comment" (R.2265). Steele referred to Tulane as "Jewlane" during his deposition (R.2309). He further stated "so many Jewish people come down here to go -- to teach, and why they do that, I don't know" (R.2309).
Although he nor anyone else had bothered to read Bernofsky's work, Steele insisted that the evaluation state that Bernofsky's work was not competitive (R.1270). He insisted on this harsh language even though he had not bothered to read the publications Bernofsky submitted to the Review Committee (R.2280). An evaluation at any level, if based on discrimination, infects the ultimate decision. Roebuck v. Drexel University, 852 F.2d 715, 727 (3rd Cir. 1988). Gutzwiller v. Fenik, 860 F.2d 1317, 1325-27 (6th Cir. 1988.)
According to Tulane, plaintiff's disqualification was derived from "the specially appointed peer review committee (R.1197), established by Karam to review Bernofsky's performance in the Department of Biochemistry in order to determine if he was qualified for the position of Research Professor" (R.849). Tulane terminated Bernofsky based on the Review Committee evaluation (R.1197).
According to Tulane, Bernofsky was not contributing any support whatsoever to the Biochemistry Department, was not an asset to the Department, had not been an asset in recent years, and his inability to generate funding for his research was a direct reflection on the quality of his research and publication (R.1124-25).
After review(11), Dr. Stuart Wood stated:
Bernofsky was, in business terms, an "asset" of the Biochemistry Department and the Tulane School of Medicine. That is, evaluated on a business basis, according to the principles of accounting, Bernofsky brought in more benefits than costs to the Biochemistry Department, and the accumulation of these net benefits in years prior to 1993 was still positive even after his grants ceased, so that the accumulated investment which he provided to the Department had not yet eroded by the lack of grant sources, even by the time of his dismissal of 1995. Taking account of the facilities and resources consumed by Bernofsky's research program, Bernofsky had a "benefit/cost ratio larger than the other researchers whose performance I studied. Even including 1994 in the analysis, Bernofsky's economic contribution to the Department was a net benefit and Bernofsky should be considered a net asset of the Department. This conclusion is especially true when Bernofsky's "benefit/cost" ratio is compared with the performance of the other members of the Biochemistry Department which I have studied. . . . (R.2333).
. . . the salaries paid to Bernofsky in any year "by Tulane" (actually it appears that, economically, Bernofsky paid his own salary by acquiring research grants which provided indirect funds to Tulane) were below the median salaries paid by other typical research universities to comparable-grade professors. Considering that Bernofsky appears to be a Nationally prominent researcher, to judge from his publication record and the testimonials [depositions & expert reports] I have seen, Tulane appears to have received Bernofsky's services at a below-market price (R.2334).
. . . It is not economically accurate to characterize Bernofsky's salary as being supported out of funds provided by other sources at Tulane; it is not economically accurate to characterize Bernofsky's salary as being supported out of "Departmental funds." Nor is it economically accurate to characterize Bernofsky's presence or activities as causing a depletion of the Biochemistry Department's funds during his last years there. The accounting conventions which may have been employed to give the appearance that Bernofsky was carried in an economic sense by the Biochemistry Department do not describe reality of the situation, but are arbitrary constructions (R.2335).
. . . Economically, viewing Bernofsky's laboratory as a "profit center" within the Biochemistry Department . . . The difference is the net benefit to Tulane. This difference, net of laboratory salaries, appears positive from my investigations to date, and shows that Bernofsky's activities were a net economic benefit to the Biochemistry Department. . . . The Department assertion that a certain percentage of Bernofsky's salary (such as 65% or more) was covered by the Department, resulting in the idea that Bernofsky personally constituted a net economic drain on the Department, is not correct. (R.2335).
Tulane retained another Research Professor, S-C Li. She is the only other Research Professor in the Department, is not in the protected class, and has comparable or lesser qualifications than Bernofsky. Tulane admitted that S-C Li never generated any grant support for her own salary (R.1512, pp. 15-18) and never was assigned any teaching duties of her own (R.2319-20). In contrast to S-C Li, Bernofsky assumed his own teaching responsibilities for sixteen years and never refused to teach (R.1518-19). He only requested that Karam sit down and discuss the tenure issue with him (R.1519). If he took on additional teaching duties he should have "official" recognition of his tenure afforded other faculty members who teach (R.1519). As previously discussed above, Bernofsky was not reappointed to any committees after discussing "official" tenure with Karam.
Tulane hired into the Department a Jewish professor, Linda Hyman, on August 16, 1993 following Ehrlich's expression of grievances (R.1932-36). In August 1996, Tulane hired Arthur Lustig, a Jewish professor, into the Department, shortly after Bernofsky's termination (R.1263). The offer of employment to this Jewish professor was made long after Bernofsky had complained of discrimination by filing this action, after Tulane was on notice that its actions would be subject to scrutiny. Given the obvious incentives in such circumstances for an employer to take corrective action in an attempt to shield itself from liability, it is clear that nondiscriminatory employer actions occurring subsequent to the filing of a discrimination complaint will rarely even be relevant as circumstantial evidence in favor of the employer. Gonzales v. Police Department of San Jose, 901 F.2d 758, 761-62 (9th Cir. 1990.); Lam v. University of Hawaii, 40 F.3d 1551, 66 F.E.P. Cases 75, 81 (9th Cir. 1994); as the court explained in Sinai v. New England Telephone, 3 F.3d 471, 62 F.E.P. Cases 1202 (1st Cir. 1993).
Intentional discrimination has been found where a department head treated a plaintiff less favorably throughout the evaluation process than he treated faculty outside the protected class, put barriers in the plaintiff's path, and intentionally engaged in a calculated effort to insure the plaintiff's dismissal. Gutzwiller v. Fenik, 860 F.2d 1317, 1325 (6th Cir. 1988.)
Bernofsky's employer offered a purported legitimate reason for Bernofsky's discharge, i.e., lack of grant support (R.1243). Because Karam prevented him from using the EPR, Bernofsky's major base of grant support was lost (R.1421-22). Without grant support, Karam was able to offer a purportedly legitimate reason for Bernofsky's termination. Nevertheless, Bernofsky, despite all odds, obtained new grant support from the Air Force (R.302-3, 564 ¶ 44-46). The proffered reason is particularly suspect in view of the treatment of Ehrlich and Cohen (R.1596-99). Moreover, in the late 1970s, during a period when Bernofsky was without grant support, Tulane permitted him to work while he sought new funding (R.1987, 1587 ¶ 91).
These facts demonstrate that Tulane's proffered reason for terminating Bernofsky is not credible, and show that there is a genuine issue of material fact in dispute concerning whether Bernofsky's claims of tenure denial/failure to promote, harassment, and discharge, more likely than not, were because of race discrimination.
E. Tulane's Discriminatory Discharge Was Based On Age.
Bernofsky was 61 years of age when he was terminated (R.274). As discussed above, he was qualified for the position of Research Professor. Tulane refused to promote him and discharged him. Upon information and belief, Bernofsky was replaced by Dr. Samuel Landry, whose work is similar. Alternatively, under the reorganization of the Biochemistry Department, there will no longer be any Research Professors.
Karam's letter stating his plans to accelerate departures from the Department and his subsequent actions, shows that he treated age as a negative factor (R.1647-50). This fact together with his statement to Bernofsky that "a guy of [your] age who has been here so long has de facto tenure", provides further evidence of Karam's bias against older faculty members in general and Bernofsky in particular (R.1754-55). Such remarks can create an inference of bias. Normand v. Research Institute of America, 927 F.2d 857, 862-65 (5th Cir. 1991) (finding statement by plaintiff's supervisor to plaintiff discouraging him from returning to his former sales territory because he was an old person supported verdict for the plaintiff.)
Remarks made to an employee may serve as sufficient evidence of age discrimination if they are: "1) age related; 2) proximate in time to the termination; 3) made by an individual with authority over the employment decision at issue; and 4) related to the employment decision issue." Brown v. CSC Logic, Inc., 82 F.3d 651, 655 (5th Cir. 1996). Age-related comments by a supervisor of plaintiff may support a finding of age discrimination even though a higher level official made the final decision to terminate plaintiff. E.E.O.C. v. Manville Sales Corp., 27 F.2d 1089, 1094 (5th Cir. 1994), cert. denied, __ U.S. __, 115 S.Ct. 1252, 131 L.Ed.2d 133 (1995); Wilson v. Monarch Paper Co., 939 F.2d 1138, 1146 (5th Cir. 1991).
Stjernholm testified that slots had to remain open in the Biochemistry Department for Karam to fill with young faculty (R.2323). Stjernholm disclosed that he was harassed because he did not retire as Tulane wished him to do when he turned 65 (R.2324-25). These facts and Karam's letter stating his desire to accelerate retirements in the Department, and his age-related comments, create an inference that age bias played a determinative factor in Bernofsky's discharge.
Additionally, young faculty who were hired by Karam were each provided approximately $135,000 in funds with which to set up his own laboratory (R.2355-60). On the other hand, Bernofsky, who along with several other senior faculty helped Karam obtain funds from the NSF for renovation purposes, received none of those funds for his own program (R.533-38)
Throughout the time that Bernofsky was employed at Tulane, he requested that he be granted "official" tenure (R.1174-75, pp. 168-205, 1754-55, 1176, pp 214, 1516). According to the Board of Regents and the internal review of the Biochemistry Department prior to Karam's arrival, there existed vacant slots to be filled (R.2293). The Department actively recruited Biochemistry candidates with lesser credentials, promoted faculty members with lesser credentials outside the protected class, and allowed faculty members with lesser credentials outside the protected class to continue to remain in their positions (R.2355-60). These facts show that age, more likely than not, was the real reason for discharge.
F. Tulane's Retaliatory Discharge Was Based On Age.
As soon as Karam arrived, Bernofsky repeatedly requested that his name be recommended for tenure (R.1754-55, 1516).
Q. When did you realize that you were not going to be made a tenured professor at Tulane?
A. Never.Q. You haven't realized it to this day?
A. Absolutely not. I mean, even when I asked Karam, he told me I was already tenured. He told me I already had de facto tenure. In fact, he told me that a guy at my age who has been here so long already has de facto tenure, and that went along perfectly with the contract that was given to me in 1976 (R.1754, 548-49).Q. So when was your first discussion with Karam concerning the tenure issue? . . .
A. Well -- oh, that was about a month after he got here, in December of '91 . . .Well, the first thing, and primary thing, that I talked to him about was about the tenure issue. I told him I had been promised tenure, and I told him that I would like him to recommend me for tenure to the Personnel and Honors Committee.
And at that time, he looked -- he looked surprised to me, and he said that a guy of my age, who has been around for so long, already has de facto tenure.
I said, "De facto tenure?"
"Yes, de facto tenure." . . .
A. Although, possibly, not official. And I talked to him about this the next year, about a year later. I had a discussion about this a year later. And I told him that I would like -- I would like to have a letter from the Personnel and Honors Committee. I would like to have an official letter. I said, "I know I have tenure."
But he said, "There is no need to do that. You have de facto tenure. You have de facto tenure." (R.1754-55).
Q. Are you suggesting, in any way, that Karam had something to do with your bring removed from a committee -- . . .
A. I'm telling you this because the circumstantial evidence is that he may have had something to do with this. . . .Q. What is that circumstantial evidence?
A. That I suddenly was not reappointed for the [Environmental Management Task Force] Committee, just as I was not reappointed to the Computer Committee. Now, I believe that I was not reappointed to the Computer Committee because I complained to him about not having a computer. He was retaliating against me, at that time, for that. I mean, Karam was retaliating against me from the time I first asked him for tenure. (R.1755).Additionally, alleged problems with Bernofsky's performance did not appear until after Bernofsky began to complain about not being promoted to a tenured position.
In Portis v. First National Bank of New Albany, MS., 34 F.3d 325, 329 (5th Cir. 1994), defendant's employee allegedly told plaintiff that she would not "be worth as much as men would be to the [defendant] . . . ." Remarks such as Karam's "that a guy of [Bernofsky's] age, who has been around for so long, already has de facto tenure" are sufficient to require the presentation of plaintiff's discrimination claim to the jury. Id. at 326. A genuine issue of material fact exists with respect to whether Tulane's reason for discharging Bernofsky was legitimate or a mere pretext for retaliation.
II. Bernofsky Raised Genuine Issues Of Material Fact For Trial Concerning His State Law Claims.
A. Bernofsky Relied To His Detriment On Tulane's Representations.
In 1977, Stjernholm, the Department Chairman, promised Bernofsky that he would become a tenured member of the Biochemistry Department (R.1756, 1796-97, 1533-37). Over the years, Stjernholm repeated the promise to Bernofsky, who patiently waited to have his position "converted" to a tenured position (R.1173-76). Evidence of the promise of tenure is contained in two written statements signed by Stjernholm (R.1533-37).
The written contract governing Bernofsky's relationship with Tulane was in accord with Stjernholm's promises (R.1539 Art.II. S.6&7, Art.III S.1&3&5, 548-49). The contract Bernofsky received when he joined the faculty at Tulane provides (R.1790, 548-49):
"Nothing in this statement shall prevent a special faculty appointment from being converted into a regular appointment at the option of the University and the School or College to which the faculty member is attached." (R.1539 Art.II S.7).
"The purpose of the probationary period is to provide opportunity for demonstration of the suitability of the appointee . . . Section 5. Any appointment after the faculty member has completed the probationary period automatically carries tenure. (R.1539 Art.III S.1&5).
The contract does not contain any provision limiting the time period during which conversions from a special appointment to a regular appointment must occur (R.1539 Art.II S.1&5, 548-49). In fact, in 1989, Tou was converted after having been employed for 18 years, the last nine of which were in a special appointment (R.1437, 1440, 1458-59, 1464-84). Her conversion occurred three years after the publication of the 1986 Faculty Handbook, which Tulane asserts prohibits such action (R.1438, 1435).
In Breaux v. Schlumberger Offshore Services, 817 F.2d 1226 (5th Cir. 1987), the court applied the theory of detrimental reliance: "The essential elements to state a detrimental reliance theory of recovery in Louisiana are: 1) a representation by conduct or word; 2) justifiable reliance thereon; and 3) a change of position to one's detriment because of the reliance." Id. at 1230.
After Stjernholm made verbal promises to Bernofsky that he intended to make him the next tenured member of the Biochemistry Department, he gave Bernofsky a copy of a written grant application to the NIH, signed by Stjernholm and Dean Hamlin, which stated that Bernofsky would be offered the next tenured position in the Department (R.1533-35). Later, Bernofsky received written critiques from a second grant application to the National Cancer Institute (R.1536-38). This critique stated that the Chairman intended Bernofsky to become the next tenured member in the Department (R.1537). The grant applications signed by the Department Chairman and the Dean of the Medical School indicated Institutional approval of the content therein (R.1533-35). Accordingly, these documents supported the verbal promise Bernofsky's Chairman made to him (R.1533-37, 1796-97).
Further evidence of Stjernholm's continuing promise to Bernofsky occurred eight years later in a letter written in 1989 by Stjernholm which recommended Bernofsky for tenure (R.1434). Bernofsky was unaware of this fact until he reviewed his personnel file, which was produced upon discovery. The evidence shows that Stjernholm attempted to have Bernofsky converted to a position with an immediate grant of tenure (R.1434, 1431, 1440, 210). Throughout that time, Stjernholm was Chairman of the Biochemistry Department, and he repeatedly indicated to Bernofsky that he was working to bring about his promise of tenure (R.1174, pp. 166-67).
Tulane never hid these documents from Bernofsky, never denied the contents of these documents, never disavowed what was stated in the grant application or the grant critique, never said these statements were in error or that the Institution did not mean what had been written. Instead, it allowed Bernofsky to labor under the impression that following expected retirements, his research position would be "converted" to a regular tenured position (R.2372, 1789).
Moreover, the 1976 Faculty Handbook, the contract governing Bernofsky's relationship with Tulane, states that "conversion" is permitted under the University rules governing faculty and tenure (R.1790, 1183, 1539 Art.II S.7, 548-49). Further, Bernofsky witnessed Tou's research position "converted" to a tenured position (R.1565, 1583, 1602).
Under the theory of detrimental reliance, the focus is on Stjernholm's behavior as an employee of Tulane. Tulane need do nothing separate and apart from the actions of its employee. Stjernholm was in the course and scope of his employment (R.1183, pp. 38-39, 1178, pp. 9-10). Tulane is responsible for Stjernholm's actions as its employee. Breaux v. Schlumberger, at 1231. It was reasonable for Bernofsky to believe Stjernholm would eventually recommend him for conversion to a tenured position and that he would become tenured (R.1183, pp. 38-39, 1533-37, 1434, 1539). The verbal promises, along with the written representations, reasonably conveyed the impression that Tulane would grant Bernofsky tenure (R.1601). This impression was reinforced by the observation that another research professor in the Biochemistry Department was converted from a research position to a tenured position (R.1602).
Bernofsky changed his position to his detriment because of his reliance on Stjernholm's promise (R.1602). Bernofsky focused all his energies on building his research program at Tulane and enhancing his laboratories after he received a verbal promise of tenure and Stjernholm gave him written documents evidencing both his and the Dean's intent to have Bernofsky become the next tenured member in the Biochemistry Department (R.1187 pp. 176-77, 1601-02, 2373, 1184, p. 65-66, 1186, pp. 168).
At that time, Bernofsky was a midcareer scientist. He sought and obtained funding for his research program at Tulane (R.1602, 1187, pp. 176-77). He focused all his efforts and energies on his research program at Tulane (R.1602, 1187, pp. 176-77). He never undertook a major effort to move his funding, equipment, and program to another institution (R.1602, 1183, p. 40).
By the time Tulane decided to terminate Bernofsky, he was 61 years old (R.274). A midcareer scientist's program is more portable, and he has far greater opportunity for changing institutions than does a senior scientist. Also, Bernofsky had expended an enormous effort over several years to obtain funding to bring an EPR machine to Tulane for use in his research program (R.177, 442, 450, 1485, 1369). As another scientist, Buettner, stated, in times of scant resources, such an accomplishment was exceptional (R.1410).
Rather than attempting to move his program, Bernofsky spent time and energy on collaborating with five Tulane professors across the spectrum of the basic science departments at Tulane Medical School to develop a new area of scientific inquiry on the cutting edge of medical research (R.1485-86, 1184, p. 65). Thus, by relying on Stjernholm's promise of tenure and foregoing an effort to move his program, Bernofsky suffered an enormous opportunity cost by remaining at Tulane (R.2333-38, pp. 6-7).
Bernofsky traveled to Wright-Patterson Air Force Base at his own expense, on his own time, and met with scientists at the Armstrong Laboratory to obtain the grant (R.456-7). When the $250,000 Air Force grant was awarded to him, Bernofsky's laboratories were geared up to start work immediately (R.1329-33). Tulane ousted Bernofsky from his laboratories which he had equipped with money secured almost exclusively from extramural granting agencies and personal funds (R.2373, 1802, 1190). As a consequence, he was unable to conduct the proposed research, and the Air Force requested the return of its funds (R.1325). He was not allowed to take his laboratory property or equipment (R.1327). He was only allowed to take his papers, books, and some personal effects (R.1327).
Bernofsky immediately attempted to make arrangements to transfer the grant awarded by the Air Force (R.1334). However, the local research facility interested in his work lacked a vivarium and an EPR (R.1334). Because he was unable to conduct the research he proposed to the Air Force, it is unlikely he will be able to secure funding from this agency or any other agency ever again. His professional credentials and reputation are now discounted in the eyes of his colleagues at Armstrong Laboratories and elsewhere because he was not able to carry out the research he had proposed (R.2337).
Other circumstances provide a second basis for a cause of action under detrimental reliance. On three separate occasions, Karam told Bernofsky that, "anyone who has been around here for as long as you", and "a guy of your age" has "de facto" tenure (R.1754-55). Long before litigation was contemplated, and before Bernofsky sought advice of legal counsel, he wrote a memorandum to Karam in July, 1994 referencing a discussion with Karam in which Karam informed him that there was no need for him to have his position converted to an officially tenured position because he already had "de facto" tenure based on his many years at Tulane (R.1513-16).
Bernofsky continued his research program at Tulane after Karam told him he had "de facto" tenure in response to his request that Tulane honor its long standing promise of "official" tenure, though he continued to seek "official" recognition of tenured status like that provided to Dr. Tou. He sought and was awarded additional grant funding (R.302-3, 564 ¶ 44-46, 1485-88, 450). He continued to pursue endeavors in the field of free radicals (R.364-404, 415-20). He brought a new area of expertise and recognition to Tulane in this newly emerging field of science (R.1187 p. 179).
Bernofsky's review of the contract governing him, the 1976 Faculty Handbook, reinforces Karam's statement that he had "de facto" or automatic tenure (R.1539 Art.III S.3, 1754-55, 548-49). Article III, Section 3, p.27 states that a probationary period may not exceed seven years and if an appointment occurred after seven years it "automatically carriers tenure" (R.1539, Art.III, S.3).
Because the provisions of his contract with Tulane, i.e., the 1976 Faculty Handbook, lent credence to Karam's statement that he already had "de facto" tenure, Bernofsky continued his efforts in applying for grants (R.548-49). He continued to publish in refereed journals (R.2065, 2069-70). He endeavored to accomplish the installation and operation of the EPR (R.1185-87, pp. 158-177). But most significantly, he nurtured the free radical program at Tulane (R.1187, pp. 179). He collaborated with Tulane faculty outside the Biochemistry Department and with others beyond the Institution in the development of the free radical program (R.1184 pp. 64-65, 1186, pp. 167-68). In short, he changed his position to his detriment, damaging his professional reputation in the bargain.
B. Tulane Breached Bernofsky's Contract.
The grant applications provided to Bernofsky by his former Chairman, Stjernholm, provide confirmation in writing of Dean Hamlin's approval of Stjernholm's promise of tenure to Bernofsky (R.1533-38). These documents satisfy the contract's provision at Article II, Section I, page 26, which requires that any modifications or special understandings shall be stated and confirmed in writing (R.1539, 1790, 548-49).
The contract's provision Article II, Section 7, page 26 provides: "Nothing in this statement shall prevent a special faculty appointment from being converted into a regular appointment at the option of the University and the School or College to which the faculty member is attached" (R.1539, 548-49). This provision demonstrates that it was permissible to recommend Bernofsky's position be converted to a tenured position, i.e., an appointment with immediate tenure, at any time (R.1539).
When Stjernholm attempted to convert Bernofsky's position in 1989, as he had promised, had Bernofsky been told this fact, certain procedures would have been available to him under his contract with Tulane to contest the tenure denial decision (R.2374, 548-49).
In 1977, when Stjernholm provided Bernofsky with copies of documents evidencing the "promise of tenure" and gave verbal statements confirming this written documentation, Bernofsky's status carried the "prospect of tenure" (R.1539).
Under the contract governing Bernofsky, i.e., the 1976 Faculty Handbook, an appointment which carries "the prospect of tenure" is considered a probationary appointment. See Article II, Section 6, page 26. Article III, Section 1, page 27 states: "The purpose of the probationary period is to provide opportunity for demonstration of the suitability of the appointee . . ." Section 5. "Any appointment after the faculty member has completed the probationary period automatically carries tenure" (R.1539, 548-49).
Article III, Section 2, page 27 provides: "Appointment during the probationary period shall normally be for a period of one year at a time." Article III, Section 3, page 27 provides: "The probationary period shall not exceed seven years . . ." Article III, Section 5, page 27 provides: "Any appointments which carry 'the prospect of tenure'", such as that of Bernofsky until his tenure was officially recognized by Tulane, receive year to year appointment letters (R.1539).
Stjernholm repeatedly informed Bernofsky that he was working to come through with his promise of tenure (R.1183, pp. 38-39). Until this was accomplished, Bernofsky received annual appointment letters which he understood would be continued until official tenure was granted to him (R.1178, pp. 8-10). Tou received similar yearly appointment letters (R.1465-82). However, receipt of these yearly appointment letters preceding her conversion, to a position with an immediate appointment of tenure in no way prohibited her from receiving tenure. In fact, prior to Tou's conversion certain members involved in reviewing her argued that she already had automatic tenure, i.e., "de facto" tenure, under the provisions of the Faculty Handbook (R.1431, 1437). Additionally, Tulane dispensed with "special appointments" in 1979-80 according to Dean Hamlin (R.1554).
In Brannan v. Wyeth Laboratories, Inc., 526 So.2d 1101 (La. 1988), the court stated that the promise of employment for other than a defined term might be allowable where the employee offered something beyond the performance of his job. Here, Bernofsky secured an LEQSF grant for $250,000 to bring an EPR to Tulane (R.1485-88, 450). Such an accomplishment was clearly beyond his ordinary duties. He collaborated with five other Tulane investigators spread across the basic sciences at Tulane in attempts to establish a successful free radical program (R.1184, pp. 64-65, 1186 pp. 167-68). Therefore, under Brannan, Tulane's promise of tenure is enforceable.
Additionally, Tulane violated Bernofsky's appointment for the 1994-1995 academic year (R.201). Despite the fact that Karam's May 24, 1994 letter violated controlling provisions of Bernofsky's contract with Tulane as set forth in the 1976 Faculty Handbook, and modified by Stjernholm's promise of tenure, Bernofsky met the conditions as outlined in Karam's letter (R.1200). He was awarded a grant for $250,000 from the Air Force before his termination date, as set forth by Karam (R.302-3, 564 ¶ 44-46). Nonetheless, Bernofsky was locked out of his laboratories on May 3, 1995 (R.1328-33).
C. Tulane Retaliated Against Bernofsky's For His Environmental Complaint.
A violation of Louisiana Revised Statute 30:2027 occurred(12) (R.311-2 ¶ 53-54). While Bernofsky was an employee of Tulane, he reported an environmental violation to Tulane (R.2367-68). He reported the violation to responsible parties in good faith (R.2367-68). Tulane took adverse employment action against him after he filed a grievance concerning the issue (R.1328-33).
When Bernofsky complained about blood and animal hair in a June, 1992 letter, rather than attempting to effectively remedy the problem, Karam focused blame on Bernofsky, stating that Bernofsky "harps" about this matter (R.1843, 1603). Thus Bernofsky's legitimate verbal and written complaints were ignored in Karam's characteristic negative response regarding any issue Bernofsky raised (R.1843, 1603). Karam sought to have Bernofsky reprimanded at the grievance proceedings where the environmental concern was raised (R.1840-43). Bernofsky was notified that he was fired shortly thereafter. Prescription runs from when the retaliation occurs.
D. Tulane Converted Bernofsky's Property.
Subsequent to Tulane's termination of Bernofsky's employment, Tulane retained Bernofsky's equipment and last paycheck (R.1328-33). Louisiana law has long recognized an action for conversion which may be brought pursuant to Louisiana Civil Code Article 2315. See, e.g., Edward Levy Metals, Inc. v. New Orleans Public Belt Railroad, 148 So.2d 580 (La. 1963); Central Fidelity Bank v. Gray, 422 So.2d 670, 672 (La. App 3 Cir. 1982); Peloguin v. Calcasieu Parish Police Jury, 367 So.2d 1246, 1250 (La. App 3 Cir. 1979).
"[C]onversion consists of an act in derogation of the plaintiff's possessory rights, and any wrongful exercise or assumption of authority over another's goods, depriving him of possession, permanently or for an indefinite time, is a conversion." Quealy v. Paine, Weber, Jackson & Curtis, 475 So.2d 756, 760 (La. 1985).
After Bernofsky was locked out of the laboratories assigned to him at Tulane, Tulane demanded a list of all the items he intended to remove (R.1326-27). The list had to be produced from memory and was set forth in a letter to Tulane (R.1328-33). Later, lists of equipment and receipts for items purchased for his laboratories with personal or family funds and receipts for many items were produced as Pretrial Exhibits provided to Tulane and included in the Bench Books prepared for trial. Two sets of the Bench Books were provided to the court. Tulane objected to these documents containing the lists and receipts in a motion in limine, and were ruled on by the court per the minute entry dated 7/3/96 (R.2440-42). Bernofsky's opposition to the motion in limine describes the documents (R.2449-50). Contrary to the court's assertion in its order and reasons never provided a list of items, Bernofsky provided identification, proof of ownership of the equipment, other research materials including perishable samples, and receipts. The court ruled that it found the documents "relevant to conversion, if current ownership of items in dispute". Bernofsky sought to supplement the record with the Bench Books or at least the specific documents contained in the bench books concerning conversion; however, the court denied the motions.
CONCLUSION Genuine issues of material fact exist with respect to each of Bernofsky's claims. The court's judgment must be reversed and the case remanded for a trial on the merits of each of his claims.
FOOTNOTES
1. Saint Francis College v. Al-Khazraji, 481 U.S 604 (1987) and Shaare Tefila Congregation v. Cobb, 481 U.S. 615 (1987) provide that the Jewish/Hebrew race is a protected race.
2. A leading scientist in free radical chemistry, and a faculty member at the ETH, the Swiss Federal Institute of Technology, Zurich, an institute that has had 25 Nobel prize winners among its ranks, and three Nobel laureates presently on the faculty.
3. Gordon conferences are elite conference of scientists - admittance is subject to peer review, which clearly demonstrates that his work is respected by others in the field.
4. 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).
5. A principal investigator and a grantee institution share responsibility for the conduct of the research proposed and for using the grant funds prudently for purposes set forth in the grant application.
6. Throughout Bernofsky's career as a Research Professor, from 1975 through 1994, he received grant support from the National Science Foundation ("NSF"), the National Institutes of Health ("NIH"), and other funding sources. During these years, the NSF and NIH grants often overlapped, and with the exception of one year, there was never a year when he lacked support from one or another of these major funding sources.
7. The research team had made numerous significant discoveries working in a newly emerging field of medicine that recognizes "free radical" damage as the basis of carcinogenesis, aging, and a host of chronic disease processes. Bernofsky, Bandara, and Tang had 16 projects in progress that were not completed and several papers which were not ready for publication (R.1587-88).
8. Karam refused to permit Tang to work for free. Tang was reduced to entering the lab discretely at night and weekends to complete her research and finish her papers. When it was discovered that Tang was entering Bernofsky's laboratory without Karam's permission, she was instructed by Karam's Office Manager, Carol Uhlich, that she must leave the premises (R.1588).
9. Ehrlich testified that she knew the connotation of the term "Jew-rat" (R.2308).
10. Karam's wife is a Jew. However, intermarriage does not prove the absence of anti-Semitism in the non-Jewish marriage partner. Many anti-Semites have been involved with Jews. For example, Virginia Woolf married a Jew. Gustav Mahler married an anti-Semitic wife. Assimilation and Its Discontents, Barry Rubin, Random House, Times Books/Random House, Inc.: New York (1995) 329 pp. Benito Mussolini had Jewish mistresses Fernanda Ostrovski, Angelica Balabanoff, and Margherita Grassini Sarfatti and ordered the murder of 7,680 Jews in Italy. Il Duce's Other Woman, Philip V. Cannistraro and Brian R. Sullivan, William Morrow & Co, Inc: New York (1993) 681 pp. Adolph Eichmann had a Jewish mistress while directing the Final Solution. Eichmann in Jerusalem, A Report on the Banality of Evil, Hannah Arendt, The Viking Press: New York (1963) 275 pp. Richard Wagner hated Jews but relied upon them. Richard Wagner: The Man, His Mind, and His Music, Robert W. Gutman, A Harvest Book/Harcourt Brace Jovanovich, Inc: New York (1968) 490 pp.
11. Among the documents Wood examined were: Charity Hospital Billing Reports 1988-1995; grant logs; Tou - Payroll Action Forms; Tabulations of wages and fringes, equipment and supplies; Payrolls for Bernofsky's laboratory; Tulane's Accounting Systems Reports for Funded Grants; Bernofsky's curriculum vitae.
12. Contrary to the court's assertion, Bernofsky's causes of action have not changed over time. Bernofsky's 1st amended complaint added an LADEA claim because an ADEA claim is premature until 60 days after an EEOC charge has been filed. The 2nd amended complaint added a claim for conversion, but conversion occurred after he filed his original and 1st amended complaints. The remainder of claims were plainly stated in the original complaint.
CERTIFICATE OF SERVICE I certify that a copy of the Appellant's Original Brief and Record Excerpts has this day been forwarded to all known counsel of record by hand delivery.
New Orleans, Louisiana this 4th day of August, 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 12,647 words; the Brief is left-justified only.
2. THIS BRIEF HAS BEEN PREPARED in monospace typeface using WordPerfect 5.1; Courier, 12 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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