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

Petition for Rehearing on Behalf of Dr. Carl Bernofsky, Plaintiff-Appellant

(Case No. 97-30575, U.S. Court of Appeals for the Fifth Circuit, January 22, 1998)

Text only version.  Images of Exhibits 1 to 21 (118 pages) are currently not available.

Plaintiff - Appellant
Defendant - Appellee
Appeal from the United States District Court for the
Eastern District of Louisiana,
Civil Action No. 95-0358
the Hon. Ginger Berrigan, Judge, Presiding

Roger D. Phipps #20326
Evanthea P. Phipps #19857
210 Baronne Street, Suite 1410
New Orleans, Louisiana 70112

(Page numbers refer to original document pages and here are hyperlinked to the appropriate reference.)

A.  Tulane Only Required Dr. Bernofsky To Contribute To His Salary From His Grants.
B.  Dr. Bernofsky Agreed To Teach.
C.  Dr. Tou Was Not On Tenure Track For Seven Years.
D.  An Appointment Which Carries The "Prospect Of Tenure" Is A Probationary Appointment To Provide Demonstration Of The Suitability Of The Appointee.
E.  Dr. Bernofsky did not accept yearly appointment letters without challenge.
F.  Dr. Tou Came In As A Special Appointment And Was Told She Could Not Get Tenure In Such A Position, But Was Nonetheless Awarded Tenure Based Solely On The Number Of Years She Was At Tulane As Provided In The 1976 Faculty Handbook.
G.  The district court stated Dr. Bernofsky "is unable to present proof that Stjernholm's promise or recommendation could have resulted in the actual grant of tenure."
H.  Tulane Acknowledges That The Faculty Handbook Is A Contract Between The University And Its Faculty With Terms Bargained For, And Not Merely A Unilateral Expression Of Policy.


Dr. Bernofsky petitions this Court for rehearing because this Court is in error as to the material facts in dispute.

A.  Tulane Only Required Dr. Bernofsky To Contribute To His Salary From His Grants.

Dr. Stjernholm, the Biochemistry Department Chairman from the time Dr. Bernofsky arrived at Tulane until November 1991, testified at his deposition that he never told Dr. Bernofsky that he was required to support 100% of his salary from the amount budgeted in his grants for salary support. The agreement was that Dr. Bernofsky would contribute to his salary from amounts in his grants specifically budgeted for salary support.

Q. Okay. Well, in '82, did you tell Dr. Bernofsky that he needed to bring in more than thirty percent of his salary?
A. No, I never told him thing like that.

Q. How about in '83?
A. No.

Q. Did you ever tell him he should bring in more money?
A. No, I can't do that.

Q. Why not? You're the Chairman of the department?
A. Yes, but, you know, I felt that he's -- I know he's doing his best. He can't do better than try.

Q. Okay.
A. I would never go and tell anybody, "You've got to bring in more money." That's --

Q. Okay. So his job was to do research?
A. Yes.

Q. Do good quality research?
A. Right.

Q. Okay. Money was not the consideration? You were willing to pay the money to get that research done?
A. Yes, as long as the Dean will give me the money, I'll pay him.

Q. And the Dean definitely gave him the money and gave him raises?
A. Yes.

Q. Because the Dean liked the research he was doing --
A. Right.

Q. -- is that correct?
A. Uh-huh (affirmative response).
(Exhibit 1, Stjernholm Deposition p.174, R.1744, 1765.)

- - - - - - - -

A. Well, apparently, we paid all of his salary in 1982. Ninety percent in 1983, forty-eight -- now he must have gotten grants, as you can see, because the figures went down. He paid fifty-two percent from his grant. Fifty-three percent of his grant, nineteen percent of his grant, eighteen percent of his grant, eighteen percent, twenty percent, twenty-eight percent.

Q. So it looks to me, if I'm just looking at this --
A. Yes.

Q. -- that he was paying more of his salary in 1993 than he was in 1986?
A. Uh-huh (affirmative response).

Q. Because in 1986, you were paying eighty-one percent of his salary.
A. Yes. Yes.

Q. And in 1993, he was only -- the department --
A. He paid thirty percent.

Q. Approximately.
A. Uh-huh (affirmative response).

Q. He was paying thirty percent in 1993, and --
A. Uh-huh (affirmative response).

Q. -- he was paying only twenty percent in 1986?
A. Yes. Right.

. . . BY MR. PHIPPS:

Q. Okay. Well --
A. '92/93 --

Q. Let's go back through the years, then.
A. Yes.

Q. '82/'83 is '82, then? Is that what --
A. Yes.

Q. I see.
A. It starts July to July.

Q. All right. Okay.
A. Yes, it goes from July to July.

Q. Okay. So in 1992 to 1993, that would be 1992, am I correct?
A. Yes, it started in July of 1992.

Q. And it ended in July --
A. Of 1993.

Q. -- '93? And at that point, he was paying thirty percent --
A. Yes.

Q. -- of his salary?
A. Yes.

Q. So there was a clear trend, at least over the last --
A. Uh-huh (affirmative response).

Q. Over the last seven years, the percentage of his salary that the department had to pay had decreased or declined by approximately ten percent over seven years?
A. Yes.

Q. Or about one, one and a quarter, one and a half percent per year had declined?
A. Yes. Uh-huh (affirmative response).

Q. And then, apparently, in 1993, July of 1993 to July of 1994 --
A. His grant must have --

Q. -- the department had to pay --
A. His grant must have run out. So he --

Q. His grant ran out?
A. Yes. So he couldn't pay any of it.

Q. So the department had to pay a hundred percent?
A. Yes.

Q. And, of course, then, there is no 1995 here --
A. No. I --

Q. -- because he was fired?
A. I have no idea what happened.

Q. Okay.
(Exhibit 1, Stjernholm Deposition, pp.178-183, see also R.1191.)

Letters written by Dr. Stjernholm provide further evidence that the understanding with Dr. Bernofsky was that he would contribute to his salary from the amounts specifically budgeted in his grants for salary support.

"Dr. Bernofsky was appointed Visiting Associate Professor with the understanding that when some retirements came up he would be moved into a tenured position. Meanwhile, Dr. Bernofsky would contribute to his own salary and provide for his group from grants."
(Exhibit 2, R. 2310.)

Dr. Bernofsky testified that his understanding with Tulane was that he contribute to his salary support (from the amount specifically allocated to salary).

Q: What I am gathering from your testimony is that you think that your grants paid at least thirty percent . . . on the average, thirty percent of your salary.
A: They usually did, but they were never required to.
(Exhibit 3, R.1175, Bernofsky Deposition, Vol. I, at pp.205-206.)

- - - - - - - -

Q. Well, I understand your salaries were the same. But it didn't register as significant in your mind, in any way, that the grants you were bringing in were only covering, on average, thirty percent of your salary? You didn't feel any pressure to try to have one hundred percent of your salary covered by grants?
A. No, I never felt pressured by that.

Q. What grants did you have in effect in the academic year '91/'92?
A. '91/'92? Well, in '91, my Air Force grant was still in effect.

Q. What was the amount of that one?
A. That was a seventy-nine thousand nine hundred. And in '91, my DOD grant was in effect that ran from 1990 to 1994. That was for two hundred and forty-four thousand six hundred. And I had a National Science Foundation grant in '91. That grant ran from 1990 to 1994. That was for two hundred and forty-three thousand.
(Exhibit 3, R.1182, Bernofsky Deposition, Vol. II, at p.36.)

B.  Dr. Bernofsky Agreed To Teach.

The district court stated "it is undisputed that Bernofsky did not agree to teach." (R.2583). However, this fact is in dispute. Dr. Bernofsky's deposition further explains his letter to Dr. Karam asking that the tenure issue be resolved.

Q. . . . Tell us about that conversation you had with Dr. Karam concerning teaching. First of all, when was it held? Was it held this academic year '93/'94?
A. . . . But the gist of it was that he sent -- he asked Rune Stjernholm to come and ask me to teach the course. He did this the year before. And --

Q. The '92/'93 academic year?
A. The previous year.

Q. Okay.
A. Yes, and I told Stjernholm that I wouldn't -- I wouldn't -- I said, "I need to have the tenure issue finally resolved before I continue teaching."

Q. Now, what did you --
A. And --

Q. Can I just ask you for clarification on that? When you said you needed to have the tenure issue finally resolved --
A. Yes, I told him I wanted tenure. I wanted to have a letter on tenure.

Q. In other words, if you had been put up to the Promotions and Tenure Committee for tenure and been denied, would you then have taught the course and stayed a Research Professor?
A. That was a totally different situation, because, had that happened, I would have -- and had been denied, I would have had a chance for a fair hearing on that. There are rules and procedures for the rehearing of a denied tenure -- the granting of tenure.
. . . -- I'm talking about the Personnel and Honors Committee is a Medical School Committee which passes on promotions and appointments at the Medical School level.

Q. Right. So when you --
A. And this is the Committee we're talking about.

Q. So when you say you would have had a full and fair hearing, you mean before the Promotions and Honors Committee?
A. Yes, the Promotions and Honors Committee. I think that's the Committee where that would be held.

Q. And so you wanted a full and fair hearing before that Committee?
A. Well, I wanted to be at least recommended for tenure to the Committee.

Q. Okay.
A. So that the process would take place.

Q. Okay. And when you told Rune Stjernholm, some time in the '92/'93 academic year, that you would not teach until the tenure issue was resolved --
A. Yes.

Q. -- you were telling him that until your name got submitted to that Committee for tenure, you would not teach?

Objection. That's not -- you're mischaracterizing what he said.

Well, that's what I want to know, what he meant by that.


Q. What did you mean, "I will not teach until I have tenure"?
A. Until I find out what was going on with the tenure. The man has been promising me tenure year after year. What he finally did was give me a -- tell me -- give me five reasons why I should teach the course, and I told him I would continue to teach the course, but that would be the last time I taught it until the tenure issue was resolved, giving him another year.
(Exhibit 3, Bernofsky Deposition, Vol.II, pp.127-30.)

Dr. Bernofsky merely asked that his name be submitted to the Personnel and Honors Committee for a vote on whether he should be converted to a tenured position as had happened with Tou.

While Dr. Karam claims in his affidavit that Dr. Bernofsky refused to teach, Dr. Karam stated in his August 16, 1994 memorandum to Dr. Bernofsky ". . . you seem to express a change of heart about accepting teaching responsibilities, there is no longer any need for your services." (Exhibit 4, R.1281).

Moreover, the affidavit of Dr. Carl Bernofsky in opposition to defendant's motion for summary judgment at paragraph 107 provides:

107. Further, in contrast to Dr. Su-Chen Li, I assumed my own teaching responsibilities for sixteen years. I never refused to teach. I merely requested that Dr. Karam sit down and discuss the tenure issue with me. I merely expressed my opinion that if I took on teaching duties I should have the same security afforded other faculty members who teach. (Affidavit In Support Of Memorandum In Opposition to Defendant' Motion For Summary Judgment.) I take teaching responsibilities very seriously, and spend many hours preparing for each lecture. Tulane's assertion that I refused to teach is false. (Exhibit 5, R.1595.)

Also, Tulane asserted for the first time during oral argument, that "He might still be there today if he had said that he would. But, he refused." If Tulane had any evidence to support this argument, Tulane would have cited the evidence long ago.

Moreover, after the district court rendered summary judgment, Mr. John Beal, Tulane's Associate General Counsel, admitted in writing to Dr. Ira Wolinsky on February 21, 1997, "His dismissal was not based upon any performance issues, but was strictly a financial decision due to a lack of research funds." Indisputably teaching is a performance issue. (Exhibit 6.)

C.  Dr. Tou Was Not On Tenure Track For Seven Years.

Dr. Tou was not hired on tenure track. The record shows that Dr. Tou was on tenure track for only one year (Exhibit 7, R.1439, February 22, 1989 letter from Tulane Chancellor John J. Walsh, M.D. to Tulane Dean Blackwell Evans, M.D.). Chancellor Walsh stated, "It is important that the Committee understand that Dr. Tou has had one year of regular appointment, 1979-80, followed by about nine years of special appointment."

Tulane misled the district court and this Court on this issue by asserting that Dr. Jen-sie Tou was hired on tenure track and was on tenure track for seven years prior to receiving tenure. Ignoring the evidence cited by Dr. Bernofsky, the district court stated in its Order and Reasons, "It is undisputed that Tou had previously served as a tenure-track professor from 1972 to 1980 at which time her appointment was converted to a research professorship." . . . "Tou's situation is distinguishable because she was on a tenure track for a number of years prior to her conversion."


What about the other person who did switch over?


Dr. Tou, that's correct. Dr. Tau -- she calls her Tou. I call her Tou. But, it's Jen-sie Tou. And, she started out at Tulane in 1972 and was tenure track for seven years, but during that time, she got a very prestigious grant that precluded her teaching. Teaching, service, scholarship being important to tenure precluded her --


Let me ask you this: She came in as a tenure track?


She came in as tenure track. Then, she got this grant which said you can only teach five percent (5%) of the time. So, they moved her over to be a research professor, a non-tenure track person like him, also. But then, later, they looked at her again when she was again teaching extensively and said she had been research track. We're going to give her credit for that, and we're going to convert her, okay. They also had, obviously, good reason to do that, because Dr. Tou was making important contributions to the department and had been tenure track at one time. (Exhibit 8, Appellate transcript pp.33-4.)

Tulane erroneously stated that Dr. Jen-sie Tou ("Tou") held a tenure-track position for seven years and did not have a "special" appointment during that period of time. Both assertions are incorrect. As detailed below, Tou held a regular tenure-track position for only a single year, from July 1, 1979 to July 1, 1980 and had "special" appointments both before and after that period.

Tou entered Tulane University in 1965 as a graduate student in the Department of Biochemistry, where she received her Ph.D. degree in 1968. She was a postdoctoral fellow (1968 to 1971) in that Department when the chairmanship was taken over by Dr. Rune Stjernholm ("Stjernholm") in 1971. Stjernholm kept Tou employed in his laboratory through a succession of appointments: instructor (1971 to 1973), assistant professor (1973 to 1980), research associate professor (1980 to 1989), and finally tenured associate professor (Exhibit 9, R.542).(1)

When Tou became assistant professor in 1973, her appointment (as was Bernofsky's in 1975) was a "special" appointment. Tou's "special" status is reflected in the letter of Dec. 5, 1974 from Chancellor Walsh to President Longenecker (Exhibit 10) (2) and her Personnel Action Forms. (Exhibit 11.)

The status of Tou's assistant professorship remained the same until July 1, 1979, when it was changed from "special" to regular tenure-track (Exhibit 12, R.1456) (3) at about the same time that Tulane's Personnel and Honors Committee reviewed her credentials and denied her tenure (Exhibit 13.(4) One year later, Tou's credentials were again reviewed, and once again she was denied tenure (Exhibit 13, R.1440). (5) However, instead of being required to leave Tulane, Tou was given another "special" appointment as Research Associate Professor (Exhibit 13.) (6) Thus, Tou held a regular tenure-track position for only a single year, from July 1, 1979 to July 1, 1980 (Exhibit 14),(7) a fact noted by Chancellor Walsh before Tou was administratively granted automatic tenure nine years later (Exhibit 15, R. 1439).(8)

During the nine years that 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 (Exhibit 9). (9) During this time she was unable to attract major grant funding.

In January, 1989, in response to a new request by Stjernholm to again secure tenure for Tou, Dean Hamlin wrote to Chancellor Walsh, "In looking at the number of years that Dr. 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." (Exhibit 15, R.1431) (10) (Emphasis added). Both Chancellor Walsh (Exhibit 15, R.1437)(11) and President Kelly (Exhibit 15, R.1436)(12) concurred, and thus Tou became a tenured member of the Department of Biochemistry. Tou's appointment was subsequently made retroactive by ten months, thereby reducing to nearly eight years the apparent time she previously spent in a "special" research appointment (Exhibit 15, R.1435). (13)

Tulane invoked the automatic tenure rule for Tou despite the fact that the new appointment represented her third conversion (according to Tulane's 1986 rules, only one conversion is permitted, and then within a seven-year period) and despite the fact that she had twice been denied tenure because of poor academic performance.

D.  An Appointment Which Carries The "Prospect Of Tenure" Is A Probationary Appointment To Provide Demonstration Of The Suitability Of The Appointee.

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 (Exhibit 16, R.1533-37). These documents satisfy the provision of the 1976 Faculty Handbook at Article II, Section I, page 26, which requires that any modifications or special understandings shall be stated and confirmed in writing (Exhibit 17, R.1539, 1790, 548-49).

The contract's provision at 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." (Exhibit 17, 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 (Exhibit 17, R.1539). Had Bernofsky been told that Stjernholm attempted to convert Bernofsky's position in 1989, as he had promised, then 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" (Exhibit 17, 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." (Exhibit 17, 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 . . ." Under Article III, Section 6, page 27, any appointment which carries "the prospect of tenure", such as that of Bernofsky until his tenure was officially recognized by Tulane, receives year to year appointment letters. (Exhibit 17, R.1539).

A. Well, when Dr. Stjernholm told me that I would have the next tenured position.

Q. Well, when Dr. Stjernholm told you that you would have the next tenured position, you considered yourself tenured as of that time, even though you did not have the next position?
A. Well, I figured I was on probationary status at that time.

Q. Okay. Let me understand you. Do you think that you had a tenured position after the time he told you that, that you had tenure, or that you had --
A. No, I --

Q. -- switched to a regular appointment status at that time?
A. Well, a regular appointment would have been a tenured status. What I considered was that -- first that he would, indeed, keep his promise to make me a tenured member of the department, but until that time, I considered myself to be on some sort of probationary status, waiting for him to make that assessment. As far as I could see from the '76 Handbook that was given to me, that anyone who was in that probationary status for more than seven years was automatically assigned tenure. That was a very long time since -- until that seven years passed. I had no idea that he would let that lapse. But he had a continuing promise of making me the next tenured -- giving me the next tenured appointment, or making my appointment converted to a tenured position. And I believed him. (Exhibit 3, Bernofsky Deposition, Vol. II, pp.8-10, R.1178.)

Likewise, Dr. Goodman, Chairman of the Senate Committee on Faculty Tenure, Freedom and Responsibility, stated that Dr. Tou had been on probation for 18 years (the entire time she was in special appointments plus the one year she was called tenure-track). "Dr. Tou has been on the faculty for 18 years. . . . her teaching load has nothing to do with her appointment. It's the time in the period of probation that counts (hers being 18 years)." (Exhibit 13, R.1440).

E.  Dr. Bernofsky did not accept yearly appointment letters without challenge.
Q. You continued to accept these annual research status appointments without challenge, you've admitted to me.
A. No, I did not accept them without challenge.

Q. Well, what was your challenge?
A. Well, because I would speak with Dr. Stjernholm about this on a continuing basis. I'd say, "Dr. Stjernholm" -- I would say -- I'd say, "Rune, what's happening with the tenured position that you promised me?"

Q. Okay. And I believe you told us that you had that kind of conversation annually with him.
A. Well, it was at least once a year. I mean, we would have the -- we would usually have these conversations, not in his office, but either in my laboratory -- Stjernholm would conduct all of his affairs in a very informal way. He rarely had meetings. He rarely had people come into his office. He would only -- he would go to them. He would usually come to me in my laboratory or my office, when I had an office, or talk about this in the hallways. And this is the way he normally conducted his business. And even though it was very informal, it was -- it was still very serious business. It was very serious. And I would ask him what the -- what the status of the -- of the -- my tenure was, and he would tell me one or two things. Either he's working on it, or that I had nothing -- "Don't worry, Carl. You have nothing to worry about."

Q. Okay. It never occurred --
A. These are his remarks.

Q. It never occurred to you to file a grievance about the fact that you had not received a tenured position by June of '91, when you got this one year reappointment, did it?
A. Dr. Stjernholm never, at any time, suggested that I would not be getting a tenured position. Why would I file a grievance?

Q. Did you ever write Stjernholm, demanding a tenured position?
A. When I could talk to him? No, I never did.

Q. Did you ever write the Dean demanding a tenured position?
A. No, I never demanded that from the Dean.

Q. Okay.
A. Because I expected it would be forthcoming.
(Exhibit 3, R.1183 - Bernofsky Deposition, Vol. II, p. 38-40).

F.  Dr. Tou Came In As A Special Appointment And Was Told She Could Not Get Tenure In Such A Position, But Was Nonetheless Awarded Tenure Based Solely On The Number Of Years She Was At Tulane As Provided In The 1976 Faculty Handbook.

The 1976 Faculty Handbook places no time limitation on when a special appointment may be converted to a tenured appointment. This provision at Article II, Section 7, page 26 of the 1976 Faculty Handbook was applied in Dr. Tou's case and the provisions of the 1986 Faculty Handbook were ignored. According to Tulane the 1986 Faculty Handbook precluded such action and was cited as the reason why Dr. Bernofsky could not be converted to a tenured position.

G.  The district court stated Dr. Bernofsky "is unable to present proof that Stjernholm's promise or recommendation could have resulted in the actual grant of tenure."

Dr. Stjernholm recommended both Dr. Tou and Dr. Bernofsky for tenure in January and April, respectively, of 1989 and through his persistent efforts Dr. Tou was tenured. In contrast, Stjernholm's recommendation of Dr. Bernofsky was tabled by the Dean, not referred to the Personnel and Honors Committee as mandated by Tulane's Constitution, and the entire matter was never disclosed to him. (Exhibit 18.) He found out only during discovery that Dr. Stjernholm had indeed kept his word and recommended Dr. Bernofsky for tenure. (Exhibit 18, R.1434.)

Stjernholm repeatedly informed Bernofsky that he was working to come through with his promise of tenure (Exhibit 34, 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 (Exhibit 35, R.1178, pp. 8-10). Tou received similar yearly appointment letters (Exhibit 36, R.1465-82). However, receipt of these yearly appointment letters in no way prohibited her from receiving tenure. In fact, prior to Tou's conversion certain members involved in reviewing her record argued that she already had automatic tenure, i.e., "de facto" tenure under the provisions of the Faculty Handbook (Exhibit 15, R.1431, 1437).

A faculty member such as Dr. Tou who came in as a special appointment and was told she could not get tenure in her position was nonetheless awarded tenure based solely on the number of years she was at Tulane. All of her years on the faculty whether designated special or probationary (tenure-track) were counted as probationary, and after having been in a probationary period in excess of seven years, the Chancellor, Dean, President, and Personnel and Honors Committee, and Executive Faculty concluded she was due "automatic tenure."

H.  Tulane Acknowledges That The Faculty Handbook Is A Contract Between The University And Its Faculty With Terms Bargained For And Not Merely A Unilateral Expression Of Policy.

The 1976 Faculty Handbook provides that the University Senate "reserves the right to review any action of those divisions which effect the University as a whole." (Exhibit 17, p.10). This reservation of rights by the University Senate demonstrates that the Faculty Handbook is not merely a unilateral expression of policy by the Tulane. The provisions contained in the Faculty Handbook were bargained for between the University and its faculty. At a meeting of the Senate, General Counsel and Vice-President, Ronald Mason admitted, ". . . there are some provisions in the Handbook that arguably rise to the level of a contract." (Exhibit 19, R.548-49).


1.  See Tou's CV and the derived "timeline."

2.  Some of the supporting exhibits are from the bench book. Motions by plaintiff to supplement the record with bench book documents (Docket items 129 of 7/15/97 and 131 of 7/24/97) were denied by Judge Berrigan (Docket items 130 of 7/16/97 and 132 of 7/25/97, respectively).

3.  Letter of June 19, 1979 from Dean Hamlin to Tou.

4.  Minutes of Executive Faculty Meeting, June 26, 1979.

5.  Minutes of Executive Faculty Meeting of June 24 and 26, 1980, and attached file memo of July 1, 1980.

6.  Minutes of Personnel and Honors Committee, June 25, 1980.

7.  Letter of June 19, 1980 from Dean Hamlin to Tou.

8.  Letter of Feb. 22, 1989 from Chancellor Walsh to Dean Evans.

9.  See Tou's CV.

10.  Letter of Jan. 31, 1989 from Dean Hamlin to Chancellor Walsh.

11.  Letter of Mar. 16, 1989 from Chancellor Walsh to President Kelly.

12.  Letter of Mar. 30, 1989 from President Kelly to Chancellor Walsh.

13.  Letter of May 24, 1989 from Dean Fulginiti to Tou.


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.

Respectfully submitted,

s/     Roger Phipps       
Roger D. Phipps #20326

210 Baronne Street, Suite 1410
New Orleans, Louisiana 70112
(504) 524-2298


I certify that a copy of the above and forgoing has this day been forwarded to all opposing counsel of record by hand delivery. New Orleans, Louisiana this 22nd day of January, 1998.

s/     Roger Phipps       
Roger D. Phipps


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