Carl Bernofsky v. Tulane University
 
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Lawsuit Against Tulane University for Retaliation and Defamation

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

(Case No. 00-30704, U.S. Court of Appeals for the Fifth Circuit, September 6, 2000)
 
Text only version.  Images of Exhibits 1 to 25 (84 pages) are currently not available.  Links to text of 4 exhibits are provided.
 

 
IN THE
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
____________________
 
00-30704
____________________
 
DR. CARL BERNOFSKY
Plaintiff - Appellant
 
v.
 
ADMINISTRATORS OF THE TULANE EDUCATIONAL FUND
Defendant - Appellee
_____________________________________________
 
On Appeal from the United States District Court for the
Eastern District of Louisiana,
Civil Action No. 98-1792 c/w 98-2102,
The Honorable Ginger Berrigan, Judge, Presiding
_____________________________________________
 
Victor R. Farrugia  #19324
Catherine C. Cooper  #26153
VICTOR R. FARRUGIA, A PLC
228 St. Charles Avenue
Suite 1028
New Orleans, LA  70130-2610
ATTORNEYS FOR PLAINTIFF - APPELLANT
DR. CARL BERNOFSKY
 

A.  CERTIFICATE OF INTERESTED PERSONS

The undersigned counsel of record certifies that the following listed persons have an interest in the outcome of this case. These representations are made in order that the Judges of this Court may evaluate possible disqualification or recusal.

1.  Dr. Carl Bernofsky
2.  Victor R. Farrugia
3.  Catherine C. Cooper
4.  Roger D. Phipps
5.  G. Phillip Shuler, III
6.  Julie D. Livaudais
7.  Richard B. Ramirez
8.  Administrators of the Tulane Educational Fund

s/     Victor R. Farrugia       
      Victor R. Farrugia


B.  STATEMENT REGARDING ORAL ARGUMENT

Oral argument would be helpful in this case because the issue in the retaliation claim is whether a negative reference letter written concerning an ex-employee is an adverse employment action. The district court has expanded the holding of Mattern v. Eastman Kodak Company to hold that a negative reference letter is not an adverse employment action. This is an issue of first impression in this circuit. The Ninth Circuit has held that a negative reference letter is an adverse employment action.  Also, this case contains interesting issues of recusal.


C. TABLE OF CONTENTS
 
(Page numbers refer to original document pages and here are hyperlinked to the appropriate reference.)
PAGE
A.  CERTIFICATE OF INTERESTED PERSONS i
B.  STATEMENT REGARDING ORAL ARGUMENT ii
C.  TABLE OF CONTENTS iii
D.  TABLE OF AUTHORITIES v
E.  JURISDICTIONAL STATEMENT 1
F.  STATEMENT OF ISSUES PRESENTED FOR REVIEW 2
G.  STATEMENT OF THE CASE 2
1.  NATURE OF THE CASE
2
2.  COURSE OF THE PROCEEDINGS AND DISPOSITION BELOW
4
H.  STATEMENT OF FACTS RELEVANT TO THE ISSUES SUBMITTED FOR REVIEW 9
I.  SUMMARY OF ARGUMENT 16
J.  ARGUMENT 18
1.  Proper standard of review is de novo for review of summary judgment and abuse of discretion for review of failure to recuse
18
2.  Summary judgment standard under Reeves
19
3.  The district court abused its discretion in refusing to recuse itself after the district court judge accepted a teaching assignment in Greece, for which remuneration was paid to the judge by the defendant
19
4.  The district court erred in granting summary judgment on the retaliation claim by holding that a negative reference letter is not an adverse employment action and by not viewing the facts in the light most favorable to Bernofsky
27
5.  Evidence of a pattern of retaliation by Tulane and a pattern of malicious behavior by Beal
40
a.  Tulane's Termination was Retaliatory
41
b.  Tulane's Method of Termination was Defamatory
41
c.  Tulane's Failure to Respond to Inquiries From a Potential Employer
42
d.  Tulane Subverted an Important Opportunity for Employment
43
e.  Tulane Retaliated Against Bernofsky by Seizing His Equipment, Supplies, and Research Materials
43
f.  Tulane Retaliated Against Bernofsky by Denying Him Ordinary Professional Rights
44
6.  The district court erred in granting summary judgment on the claim of defamation
45
a.  The Beal letter defamed Bernofsky
45
b.  Tulane Did Not Qualify for the Qualified Privilege
48
c.  L.R.S. 23:291 Is Not a Safe Harbor For Tulane in This Case
49
K.  CONCLUSION 50
L.  SIGNATURE OF COUNSEL 54
M.  CERTIFICATE OF SERVICE 54
N.  CERTIFICATE OF COMPLIANCE 55


D.  TABLE OF AUTHORITIES
CASES PAGE
Alford v. Georgia-Pacific Corp., 331 So. 558 (La. Ct. App. 1st Cir. 1976) 48
Anderson v. Liberty Lobby Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) 18
Bernofsky v. Tulane University Medical School, 962 F.Supp. 895 (E.D.La. 1997), cert. denied, __U.S.__ , 142 L.Ed. 2d 37, 119 S.Ct. 48 (1998) 4
Bernofsky v. Tulane University Medical School (Civil Action No. 95-358) 9
Berry v. Stevinson Chevrolet, 74 F.3d 980, 986 (l0th Cir. 1996) 31
Bilka v. Pepe's Inc., N.D.Il1.1985, 601 F.Supp. 1254 33
Cardinal Towing & Auto Repair, Inc. V. City of Bedford Texas, 180 F3d 686, 690 (5th Cir. 1999) 18
Charlton v. Paramus Bd. of Educ., 25 F.3d 194, 198-200 (3rd Cir. 1994), cert. denied, 513 U.S. 1022, 115 S.Ct. 590, 130 L.Ed.2d 503 (1994) 30
Chitimacha Tribe v. Harry L. Laws Co., 690 F.2d 1157, 1165 (5th Cir. 1982), cert. denied, 464 U.S. 814, 104 S.Ct. 69, 78 L.Ed.2d 83 (1983) 21
Corneveaux v. CUNA Mutual Ins. Group, 76 F.3d 1498, 1507 (10th Cir. 1996) 31
EEOC v. LB Foster Company, 123 F.3d 746, 754, n4 (3rd Cir. 1997) 35
Elmer v. Coplin, 485 So. 2d 171 (La. App. 2nd Cir. ), writ denied, 489 So. 2d 246 (1986) 48
Gardes Directional Drilling v. United States Turnkey Explor., 98 F.3d 860, 864 (5th Cir. 1996) 18
Grimes v. Texas Department of Mental Health and Mental Retardation 102 F.3d 137 (5th Cir. 1996) 39
Hall v. Small Business Administration, 695 F.2d 175 (5th Cir. 1983) 21
Hansard v. Pepsi-Cola Metro. Bottling Co. Inc., 865 F.2d 1461, 1465 (5th Cir. ), cert. denied, 493 U.S. 842, 110 S.Ct. 129, 107 L. Ed.2d 89 (1989) 38
Hashimoto v. Dalton, 118 F.3d 671 (9th Cir. 1997), cert. denied, 118 S. Ct. 1803, 523 U. S. 1122, 140 L. Ed.2d 943 32, 36
Health Services Acquisition Corp. v. Liljeberg, 796 F.2d 796, 800 (5th Cir. 1986) 21
Hines v. Arkansas Louisiana Gas Co., 613 So. 2d 646, 656-57 (La. App. 2nd Cir.), writ denied, 617 So. 2d 932 (1993) 48
In Re: Chevron, 121 F3d 163, 165 (5th Cir. 1997) 23
Irving Reingold v. Swiftships Inc., 126 F3d 645, 646 (5th Cir. 1997) 18
Kachmar v. SunGard Data Sys. Inc., 109 F.3d 173 (3rd Cir. 1997) 36
Knox v. Indiana, 93 F.3d 1327, 1334 (7th Cir. 1996) 30
Ledergerber v. Stangler, 122 F.3d 1142, 1144 (8th Cir. 1997) 29
Levitt v. University of Texas at El Paso, et al., 847 F.2d 221 (5th Cir. 1988) 19, 23
Liljeberg v. Health Serv. Acquisition Corp., 486 U. S. 847, 860-61, 108 S.Ct. 2194, 2202-03, 100 L.Ed.2d 855 (1988) 23
Martin v. Lincoln General Hospital, 588 So.2d 1329, 1332-33 (La.App. 2nd Cir. 1991) 45
Mattern v. Eastman Kodak Company, 104 F.3d 708 (5th Cir. 1997) 3, 28, 33
Pantchenko v. C. B. Dolge Company Inc., 581 F.2d 1052 (2nd Cir. 1978) 30
Passer v. American Chemical Soc., 935 F.2d 322, 330-331 (D.C. Cir. 1991) 31
Potashnick v. Port City Construction Co., 609 F .2d 1101, 1111 (5th Cir.), cert. denied, 449 U.S. 820, 101 S.Ct. 78, 66 L.Ed.2d 22 (1980) 21
Ray v. Iuka Special Municipal Separate School District, et al., 51 F.3d 1246 (5th Cir. 1995) 38
Reeves v. Sanderson Plumbing Products, Inc., 120 S.Ct. 2097, 68 USLW 4480, (U.S., June 12, 2000) 18, 52
Republic of Panama v. American Tobacco Company, No. 99-30685 (5th Cir. July 17, 2000) 17, 22
Robinson v. City of Pittsburgh, 120 F.3d 1286, 1300 (3rd Cir. 1997) 29
Robinson v. Shell Oil Co., 519 U.S. 337 (1997) 34, 50
Rubinstein v. The Administrators of the Tulane Educational Fund et al., 218 F.3d 392, (5th Cir. 2000) 26, 38
Rutherford v. American Bank of Commerce, 565 F.2d 1162 (10th Cir. 1977) 31
Sassone v. Elder, 626 So.2d 345, 352 (La. 1993) 45
Shackelford v. Deloitte & Touche LLP, 190 F.3d 398, 405 n. 4 (5th Cir. 1999) 27
Sparrow v. Piedmont Health Systems Agency. Inc., 593 F.Supp. 1107 (M.D.N.C., 1984) 33
Torres v. Pisano, 116 F.3d 625, 640 (2nd Cir. 1997) 30
Trentecosta v. Beck, 703 So.2d 552, 559 (La. 1997) 45
Trevino v. Johnson, 168 F.3d 173, 178 (5th Cir. 1999) 17
United States v. Cowden, 545 F.2d 257, 265 (1st Cir. 1976), cert. denied, 430 U.S. 909, 97 S.Ct. 1181, 51 L.Ed.2d 585 (1977) 24
United States v. Holland, 655 F.2d 44 (5th Cir. 1981) 21
Whitehurst v. Wright, 592 F.2d 834 (5th Cir. 1979) 21
Wideman v. Wal-Mart Stores, Inc., 141 F.3d 1453, 1456 (llth Cir. 1998) 31
Wu, et al. v. Joab Thomas, University of Alabama Board of Trustees, et al., (llth Cir. 1993) 24
Wyatt v. City of Boston, 35 F.3d 13, 15-16 (1st Cir. 1994) 30

STATUTES AND TREATISES
Age Discrimination in Employment Act ("ADEA") 9
Code of Conduct for United States Judges, Section 3.4-3(a) 16
Code of Judicial Conduct, Canon 2 (1973) 24
F.R.A.P. 4(a)(4)(A) 2
F.R.C.P. 6(a) 1
F.R.C.P. 56(c) 18
Guide to Judiciary Policies and Procedures, 1999 Ed., Vol II, Chapter V, Section 3.4(a) 19
L.R.S. 23:291 49
Title VII of the Civil Rights Act of 1964 as amended 1, 9
28 U.S.C. Section 455(a) 3, 16, 20, 49
28 U.S.C. Section 455(b)(4) 3, 20
28 U.S.C. Section 1291 1
29 U.S.C. Section 623(d) 6
42 U.S.C. Section 1981 4, 6, 9
42 U.S.C. Section 1981(b) 6
42 U.S.C. Section 2000e-2(m) (Section 107) 38
42 U.S.C. Section 2000e-3(a) 6, 9, 30


TO THE HONORABLE UNITED STATES COURT OF APPEALS:


E.  JURISDICTIONAL STATEMENT

The district court has original jurisdiction in this civil action because it arises under the laws of the United States. Title VII of the Civil Rights Act of 1964 as amended.

This Court has jurisdiction pursuant to 28 U.S.C. Section 1291. This appeal is from a final judgment that disposes of all claims of this case.  Final judgment was entered on April 18, 2000.  Within 10 days (excluding four weekend days, pursuant to F.R.C.P. 6(a)), Dr. Carl Bernofsky ("Bernofsky") filed his motion for recusal and, in the alternative, to amend judgment and/or motion for new trial on May 2, 2000. On May 30, 2000, the district court denied Bernofsky's post-judgment motions.  Pursuant to F.R.A.P. 4(a)(4)(A), the time for filing Bernofsky's appeal ran from May 30, 2000. Bernofsky timely filed his amended notice of appeal on June 5, 2000.


F.  STATEMENT OF ISSUES PRESENTED FOR REVIEW

1.  Whether the district court erred in refusing to recuse itself after the district court judge accepted a three week teaching assignment in Greece, for which assignment the judge received remuneration from the defendant.

2.  Whether the district court erred in granting summary judgment on the retaliation claim by holding that a negative reference letter is not an adverse employment action and by not viewing the facts in the light most favorable to Bernofsky.

3.  Whether the district court erred in granting summary judgment on the claim of defamation by not viewing the facts in the light most favorable to Bernofsky.


G.  STATEMENT OF THE CASE

1.  NATURE OF THE CASE

The threshold issue is whether the district court abused its discretion in failing to recuse itself from this case after learning in November, 1999 that the Honorable Judge Berrigan had been selected to teach a Tulane Law Summer School class in Greece for which she received remuneration from the defendant.  The issue is whether this teaching requires recusal under 28 U.S.C. Section 455(a) because a reasonable person, knowing about the teaching assignment, would harbor doubts about the judge's impartiality, or under 28 U.S.C. Section 455(b)(4) because the judge knows that she has an interest that could be substantially affected by the outcome of the proceeding.

The second issue is whether the district court erred in granting summary judgment on the retaliation claim by holding that a negative reference letter is not an adverse employment action and by not viewing the facts in the light most favorable to Bernofsky. The Fifth Circuit has not yet addressed the issue of whether a negative reference written about an ex-employee who had engaged in a protected activity is an adverse employment action to support a prima facie case of retaliation. U.S. Supreme Court and Ninth Circuit precedent indicates that a negative reference is an adverse employment action. The issue is whether the language in Mattern v. Eastman Kodak Co. is expansive enough to require the holding that even a post-termination negative reference letter is not an adverse employment action. Once over that hurdle, Bernofsky will prove that the negative reference letter was written by Beal, in-house counsel for Tulane, in retaliation for Bernofsky filing an EEOC charge and lawsuit alleging discrimination. The letter contained false and defamatory statements that Bernofsky had sued Karam personally and that Bernofsky's position had been eliminated because Bernofsky no longer had any research funds. Tulane also retaliated against Bernofsky by not responding to Professor Campbell's two separate requests to three different professors at Tulane requesting reference letters on Bernofsky.

Finally, the district court erred in granting summary judgment on the claim of defamation by not viewing the facts in the light most favorable to Bernofsky.

2.  COURSE OF THE PROCEEDINGS AND DISPOSITION BELOW

Bernofsky, was plaintiff in a series of four lawsuits against defendant, Administrators of the Tulane Educational Fund ("Tulane"), in which the Honorable Ginger Berrigan presided.  In the first lawsuit, Civil Action No. 95-358, filed January 31, 1995, in United States District Court for the Eastern District of Louisiana, plaintiff alleged discrimination under 42 U.S.C. §1981 and joined various state law claims.(1)  The complaint asserted that plaintiff was a professor at Tulane University Medical School where he had been a faculty member for 20 years and that a new department chairman, who arrived in November, 1991, harassed him, interfered with his staff, hindered his performance, caused him to lose grant funding, and threatened termination. The complaint further alleged that these actions were based on the fact that plaintiff was Jewish and that the other two senior Jewish faculty members in the Department were similarly discriminated against by the same chairman.

Motions were filed February 7, 1995 for a temporary restraining order and a preliminary injunction to enjoin Tulane from closing plaintiff's laboratories and removing their contents. These motions were denied. A First Amended Complaint was filed February 27, 1995, adding an age discrimination claim under state law. A trial date was initially set for January 22, 1996, but was continued to July 8, 1996 because of plaintiff's diagnosis and treatment for cancer. A Second Amended Complaint was filed November 21, 1995, adding an ADEA claim and a claim for conversion of laboratory equipment and materials.

The Motion for Summary Judgment by Tulane was denied and the trial set for July 8, 1996 was continued at the last moment because of defendant's objections to plaintiff's Exhibit Books. The new trial date was set for September 8, 1997. However, the District Court reversed itself, granting summary judgment in favor of defendant April 15, 1997.

On appeal, the Fifth Circuit affirmed the decision of the District Court. Subsequently, the U.S. Supreme Court denied a petition for certiorari October 5, 1998.

Plaintiff filed two other lawsuits, this time in State Court (Nos. 97-20805 and 98-6317). These were removed by defendant to Federal Court, where they were docketed as Civil Actions 98-2102 and 98-1577, respectively, and assigned to Judge Ginger Berrigan. A fourth lawsuit, Civil Action 98-1792, was filed directly in U.S. District Court on June 18, 1998. Civil Actions 98-1792 and 98-2102 were later consolidated under the former docket number and captioned as Dr. Carl Bernofsky v. Administrators of the Tulane Educational Fund. This is the case presently before this Honorable Court.  In this lawsuit, plaintiff alleged defamatory and retaliatory conduct by defendant for making false and malicious statements to prospective employers in violation of 42 U.S.C. §1981 and §1981(b), 42 U.S.C. §2000e-3(a), and 29 U.S.C. §623(d).

Trial in this case had been initially set for January 18, 2000. At the pretrial conference, the district court judge announced her decision to continue the trial, which was reset to May 15, 2000 [R.51-53].

On March 14, 2000, Tulane filed a Motion for Summary Judgment, which motion was granted. See Order and Reasons. [Record Excerpts, Exhibit 3]. After Bernofsky's post-judgment motions were denied [Record Excerpts, Exhibit 5], this appeal was taken. [Record Excerpts, Exhibit 6].

In addition to appealing the merits of his lawsuit which was dismissed by the district court judge, Bernofsky is appealing the denial by the district court judge of Bernofsky's motion to recuse. The district court judge has requested clear guidance from a higher court on the issue of recusal. [Record Excerpts, Exhibit 5, p. 4].

Bernofsky filed a motion to recuse Judge Berrigan October 15, 1998 [Record Excerpts, Exhibit 10], which was denied November 23, 1998. [Record Excerpts, Exhibit 12]. Bernofsky appealed the order denying the motion for recusal, which was denied by the Fifth Circuit on February 2, 1999, on the grounds that such motion is not immediately appealable [R.130-131]. Bernofsky's legal counsel withdrew from the case February 8, 1999 [R.133]. New counsel of record for Bernofsky was enrolled April 6, 1999 [R.112].

On February 11, 1999, Bernofsky filed, pro se, a Complaint of Judicial Misconduct against Judge Berrigan based on her association with defendant throughout the above proceedings and her failure to disclose this association. The Complaint, No. 99-05-372-0118, was dismissed February 23, 1999 by order of Fifth Circuit Chief Judge Carolyn D. King and, upon appeal, the dismissal was affirmed by the Judicial Council of the Fifth Circuit April 19, 1999.

On June 14, 1999, Bernofsky filed, pro se, with the Fifth Circuit a Petition for Writ of Mandamus (Case No. 99-30614) that sought to recuse Judge Berrigan from the litigation then before her. Judge Berrigan called a status conference June 17, 1999 and informed all counsel of her decision to recuse herself. [Record Excerpts, Exhibit 13]. However, she subsequently reversed herself and submitted a response that opposed recusal June 21, 1999. Id. The Fifth Circuit denied Bernofsky's petition July 6, 1999.

On August 30, 1999, Bernofsky appealed the Appellate Court's decision, pro se, to the U.S. Supreme Court (Case No. 99-372). Bernofsky's Petition for Writ of Mandamus was denied by the Supreme Court November 1, 1999.

Months later, Bernofsky learned of Judge Berrigan's arrangement with Tulane University officials to teach a three-week, one-credit course in Greece during July, 2000. On April 4, 2000, Bernofsky submitted a letter to Judge Berrigan requesting her recusal. [Record Excerpts, Exhibit 16]. Subsequently, Judge Berrigan admitted that she had agreed in November, 1999 to accept a $5,500 stipend from Tulane University to teach the summer course in Greece. [Record Excerpts, Exhibit 5, p. 2]. On May 2, 2000, through counsel, Bernofsky filed a Motion for Recusal, and, in the Alternative, to Amend Judgment, and/or Motion for New Trial [R.874-895]. On May 30, 2000 the district court judge denied Bernofsky's motion in its entirety. [Record Excerpts, Exhibit 6]. The Notice of Appeal was filed on June 5, 2000. [Record Excerpts, Exhibit 6].


H.  STATEMENT OF FACTS RELEVANT TO THE ISSUES
SUBMITTED FOR REVIEW

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

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

On February 10, 1995, Bernofsky filed a charge (No. 270-95-0754) with the EEOC alleging race discrimination under Title VII of the Civil Rights Act of 1964 as amended, 42 United States Code Section 2000e et seq. ("Title VII"), and age discrimination under the Age Discrimination in Employment Act ("ADEA"). Upon receiving notice of these claims, Tulane immediately assumed a retaliatory posture and utilized every means at its disposal to exercise its influence to Bernofsky's detriment. Tulane retaliated by terminating Bernofsky before the expiration of his school year appointment, which method is reserved only for those who are unfit, incompetent, or guilty of gross personal misconduct [R. 1173].

About the time that Bernofsky was being fired by Tulane in 1995, he was diagnosed with cancer and had malignant tumors surgically removed. After the surgery, he was unable to seek re-employment during a lengthy period of chemotherapy, radiation treatment and convalescence [R. 1176]. When he recovered in January, 1997, he applied for employment at 52 potential employers.

One act of retaliation that is the subject of this lawsuit is Beal's defamatory negative reference letter addressed to Wolinsky at the University of Houston. The other act of retaliation that is the subject of this lawsuit is the silence of Tulane after Campbell of Michigan Tech. University solicited reference letters from three Tulane professors on two separate occasions.

The letter dated 2/21/97 from Beal to Wolinsky of the University of Houston [Record Excerpts, Exhibit 17] stated as follows:

You recently sent letters to Dr. Jim Karam, the Chairman of the Department of Biochemistry, as well as Dr. Steele and Dr. Stjernholm in that department concerning Dr. Karl [sic.] Bernofsky.

I have directed Dr. Karam that they should not respond to any request relative to Dr. Bernofsky because of pending litigation brought by Dr. Bernofsky against Dr. Karam personally and against the University.

I can confirm that Dr. Bernofsky was a research professor at Tulane whose position was eliminated because Dr. Bernofsky no longer had any research funds to support his position. His dismissal was not based on any performance issues, but was strictly a financial decision due to lack of research funds.

Lack of response from Dr. Karam, Dr. Steele, or Dr. Stjernholm personally should not indicate any negative information relative to Dr. Bernofsky, but is necessitated because of the pending litigation.  (Emphasis added).

This letter incorrectly stated that Bernofsky sued Dr. Karam personally. He is the Chairman of the Biochemistry Department where Bernofsky worked. Beal admitted in his deposition that Dr. Karam was not sued personally. [Record Excerpts, Exhibit 22].

The letter also incorrectly stated that Bernofsky no longer had any research funds. Bernofsky's grant funding was actually promising at the time of his separation, and his grant funding throughout his 20 year career at Tulane indicates a steady upward trend despite cyclic variations. The chart below illustrates Bernofsky's grant funding while at Tulane [R.1035-1037].

Yearly Grant Income, 1976-1996

As principal investigator, every aspect of Bernofsky's Air Force grant, including the budget, was created by him. The final version of the budget was approved by Tulane on 2/24/95, two months before Bernofsky's termination. The total grant was for $124,921, year 1, and $125,955, year 2 [R.1067,1068]. The grant awarded by the Air Force contained $59,240 for year-1 salaries and $62,903 for year-2 salaries. Bernofsky initially chose to pay himself a only modest portion of those budgeted amounts so that he would have funds to pay his assistants. He specified for himself $13,679 for year 1 and $14,500 for year 2 [R.1066,1067]. However, he was not restricted to that distribution. As he had done in the past, and which is common with research grants, Bernofsky could reallocate how those funds were distributed as long as the changes were reasonable and stayed within the approved budgetary totals. All that was required was Tulane's approval and that of the granting agency, which, in Bernofsky's experience, seldom objected to changes approved by the host institution.

Bernofsky could have requested a larger portion of the salary budget for himself but, in fact, he was prepared to forego all salary if only Tulane would not destroy his research program. Bernofsky's research program at that time was entering a phase of heightened productivity following years of project development.

Prior to Karam's chairmanship of the Biochemistry Department, Bernofsky had, at one point, lost grant support for a period of nearly two years. During that period, Tulane allowed him to work for little salary without ever threatening termination [R.1038-1045]. Major grant support was subsequently reestablished.

Following his lawsuit and EEOC charge of early 1995, however, Bernofsky was terminated on the premise that he had insufficient grant funds for his salary. Not only did Tulane not have a policy of forced termination based on a temporary loss of grant funding, but according to Tulane's Guidelines for the Assignment of Research Space,  " When an investigator loses a grant, he or she should be given two grant cycles, or approximately three years, to regain support." [R.1055].

By seeking employment from Wolinsky and Campbell, Bernofsky was following established practices. It is well established in academia and other professional circles that the best way of finding new employment is to enlist the assistance of working colleagues by informing them of your availability and employment preferences. The rationale for this approach is simply that an individual's colleagues are in the best position to learn of new opportunities as they arise, are familiar with the candidate's history and capabilities, and have immediate access to the persons and processes responsible for filling new positions. Openings continually arise in academia as a result of retirements, departures, deaths, expansion of existing departments or the creation of new ones, and Bernofsky was delighted to learn from Wolinsky that positions were either available or about to become available. Thus, the fact that Bernofsky did not pursue a publically advertised position at either the University of Houston or Michigan Technological University in no way impugns the legitimacy of his search for employment there [R.1172].

Plaintiff filed a motion for recusal early on in this case. The motion was denied on November 23, 1998. [Record Excerpts, Exhibit 12]. Although the Honorable Judge Berrigan admitted to teaching at Tulane Law School, which is a component of the defendant in this case, she wrote in her minute entry of November 23, 1998, that her only teaching undertaking at the law school was substitute teaching a few classes for Judge Schwartz, which involved no compensation.(2)

The Honorable Judge Berrigan responded to the issue of recusal at the U.S. Fifth Circuit level in a letter of June 21, 1999. [Record Excerpts, Exhibit 13]. In this letter, Judge Berrigan admitted to initially agreeing to recuse herself and then changing her mind. Her reason for not recusing herself was her view of the law of recusal that the only two grounds for recusal are "impartiality or the appearance of impartiality." Judge Berrigan at that time stated that she honestly believed that neither of the two grounds of recusal applied to this case.

However, the relationship between the Tulane Law School and Judge Berrigan has materially changed since Judge Berrigan's letter of June 21, 1999. In November, 1999, she was appointed to teach a three-week class in Greece in July, 2000, for which she received a stipend of $5,500.00. From this stipend amount, she paid her own travel and lodging expenses for three weeks. [Record Excerpts, Exhibit 5, p. 2]. She taught a one-hour class daily [R.898].

Judge Berrigan knew of teaching this class for Tulane Law School since November, 1999 and failed to disclose this fact to Bernofsky or his counsel. Bernofsky learned of Judge Berrigan's new teaching assignment through independent sources. Upon learning of the new teaching assignment, Bernofsky asked on April 4, 2000, for recusal of Judge Berrigan. [Record Excerpts, Exhibit 16]. While waiting for a reply to his letter, Bernofsky was surprised with a decision on Tulane's motion for summary judgment in Tulane's favor, dismissing Bernofsky's entire case.


I.  SUMMARY OF ARGUMENT

The district court abused its discretion in failing to recuse itself from this case after learning in November, 1999 that the Honorable Judge Berrigan had been selected to teach a Tulane Law Summer School class in Greece for which she received remuneration from the defendant.  This teaching requires recusal under 28 U.S.C. Section 455(a) because a reasonable person, knowing about the teaching assignment, would harbor doubts about the judge's impartiality.  The Code of Conduct for United States Judges Section 3.4-3(a) states that a judge who teaches at a law school should recuse from cases involving the university where the judge's impartiality might reasonably be questioned.

The district court erred in granting summary judgment on the retaliation claim by holding that a negative reference letter is not an adverse employment action and by not viewing the facts in the light most favorable to Bernofsky. The Fifth Circuit has not yet addressed the issue of whether a negative reference written about an ex-employee who had engaged in a protected activity is an adverse employment action to support a prima facie case of retaliation. U.S. Supreme Court and Ninth Circuit precedent indicates that a negative reference is an adverse employment action.

The negative reference letter was written by Beal, in-house counsel for Tulane, in retaliation for Bernofsky filing an EEOC charge and lawsuit alleging discrimination. Beal's letter contained false and defamatory statements that Bernofsky had sued Karam personally and that Bernofsky's position had been eliminated because Bernofsky no longer had any research funds.

Tulane also retaliated against Bernofsky by not responding to Professor Campbell's two separate requests to three different professors at Tulane requesting reference letters on Bernofsky.

Finally, the district court erred in granting summary judgment on the claim of defamation by not viewing the facts in the light most favorable to Bernofsky. The Beal letter contained false and defamatory words and was published to Wolinsky. Bernofsky was injured by not being considered for employment and by damage to his reputation in the scientific community. Finally, Beal was at fault for issuing his letter that contained two glaring inaccuracies. His fault can be traced to a retaliatory animus that Beal had toward Bernofsky that started when Bernofsky filed a lawsuit and an EEOC charge alleging discrimination.


J.  ARGUMENT

1.  Proper standard of review is de novo for review of summary judgment and abuse of discretion for review of failure to recuse

Denial of recusal is reviewed for abuse of discretion.  Republic of Panama v. American Tobacco Company, No. 99-30685 (5th Cir. 07/17/2000) and Trevino v. Johnson, 168 F.3d 173, 178 (5th Cir. 1999).

The standard of review for this Court is to review a district court's grant of summary judgment de novo, applying the same standard of review as would the district court. In reviewing the record, this Court must view all facts in the light most favorable to the nonmovant. This Court reviews questions of law de novo.  Cardinal Towing & Auto Repair, Inc. v. City of Bedford, Texas, 180 F3d 686, 690 (5th Cir. 1999).  Irving Reingold v. Swiftships, Inc., 126 F3d 645, 646 (5th Cir. 1997).

The court of appeals will reverse the district court's ruling only if it determines that the pleadings, affidavits, and other evidence establish that there is a genuine issue of material fact and that Tulane is not entitled to judgment as a matter of law.  Gardes Directional Drilling v. United States Turnkey Explor., 98 F.3d 860, 864 (5th Cir. 1996).  Fed.R.Civ.P. 56(c).  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., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

2.  Summary judgment standard under Reeves

In the recent case of Reeves v. Sanderson Plumbing Products, Inc., 120 S.Ct. 2097, 68 USLW 4480 (U.S., Jun. 12, 2000), the unanimous U.S. Supreme Court reaffirmed that "the standard for granting summary judgment 'mirrors' the standard for judgment as a matter of law, such that the inquiry under each is the same."  Reeves, at 2110.  The court held that, although all of the evidence should be reviewed by the court, not all evidence should be given weight.  The court "must disregard all evidence favorable to the moving party that the jury is not required to believe.  See Wright & Miller, at 299.  That is, the court should give credence to the evidence favoring the nonmovant as well as that 'evidence supporting the moving party that is uncontradicted and unimpeached, at least to the extent that evidence comes from disinterested witnesses'."  Reeves, at 2110.

3.  The district court abused its discretion in refusing to recuse itself after the district court judge accepted a teaching assignment in Greece, for which remuneration was paid to the judge by the defendant

Because Judge Berrigan received compensation and prestige in teaching for Tulane law school in Greece, she should recuse herself. [Record Excerpts, Exhibit 14].

The Guide to Judiciary Policies and Procedures, 1999 Ed.. Vol. II, Chapter V, Section 3.4(a) at page V-39 states that a judge who teaches at a law school should recuse himself from all cases involving that institution as a party. [Record Excerpts, Exhibit 11]. This judiciary policy mandates that Judge Berrigan recuse herself.

The Fifth Circuit has set the standards for recusal in the case of Barbara W. Levitt v. University of Texas at El Paso, et al., 847 F.2d 221 (5th Cir. 1988).

"Under 28 U.S.C. §455(a), a justice, judge, or magistrate of the United States is required to recuse himself "in any proceeding in which his impartiality might reasonably be questioned." Subsection (b) of that same section further requires that he recuse himself in other specified circumstances.

Under 28 U.S.C. §455(b), he shall also disqualify himself in the following circumstances:

"(4)  He knows that he, ..., has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding."

Judge Berrigan should recuse herself under both Section 455(a) and 455(b)(4). By teaching a three-week summer course in Greece for the Tulane Law School, Judge Berrigan has placed herself in a situation where her impartiality might reasonably be called into question. Judge Berrigan has a "financial or other interest" in Tulane.

Not only does the teaching position come with a stipend of $5500.00 for travel abroad, the position itself is one of prestige. The following Justices of the U.S. Supreme Court have taught at the Tulane Law School Summer School Abroad program:

Justice Antonin Scalia - 1987, 1991, 1997
Justice Harry Blackmun - 1992
Chief Justice William Rehnquist - 1995, 1997
Justice Ruth Bader Ginsburg - 1999

[Record Excerpts, Exhibit 15].

To state the obvious, there is prestige in being asked to participate in a program whose past participants included four Justices of the U.S. Supreme Court, including the Chief Justice. Chief Justice Rehnquist and Justice Scalia participated in the program more than one year. If Judge Berrigan would like to have this teaching position abroad for any future year, it would appear to a reasonable person that she has a financial or other interest in Tulane.

In Health Services Acquisition Corp. v. Liljeberg, 796 F.2d 796, 800 (5th Cir. 1986), the Fifth Circuit observed that "[t]he goal of the disqualification statute is to promote public confidence in the judicial system by avoiding even the appearance of partiality.  Chitimacha Tribe v. Harry L. Laws Co., 690 F.2d 1157, 1165 (5th Cir. 1982), cert. denied, 464 U.S. 814, 104 S.Ct. 69, 78 L.Ed.2d 83 (1983). In particular, Section 455(a) was intended to establish an objective test so that "disqualification should follow if the reasonable man, were he to know all the circumstances, would harbor doubts about the judge's impartiality."  Potashnick v. Port City Construction Co., 609 F.2d 1101, 1111 (5th Cir.), cert. denied, 449 U.S. 820, 101 S.Ct. 78, 66 L.Ed.2d 22 (1980). See also Hall v. Small Business Administration, 695 F.2d 175 (5th Cir. 1983);  United States v. Holland, 655 F.2d 44 (5th Cir. 1981);  Whitehurst v. Wright, 592 F.2d 834 (5th Cir. 1979).

Judge Berrigan, when faced with the recusal issues prior to June, 1999, decided that, in her view, there was no impartiality and no appearance of impartiality. [Record Excerpts, Exhibit 13, p. 2]. However, the proper question is whether a reasonable man who knows all of the circumstances would harbor doubts about the judge's impartiality. A reasonable person would harbor doubts about Judge Berrigan's impartiality if that person knew of Tulane Law School Summer School Abroad's appointment of Judge Berrigan. The district court has abused its discretion in refusing to recuse.

A review of recusal cases supports the conclusion that Judge Berrigan should recuse herself.

In the case of Republic of Panama v. The American Tobacco Company, Inc., et al., No. 99-30685 (5th Cir., July 17, 2000), the Fifth Circuit held that the district court abused its discretion in denying defendants' motion to recuse. The district court judge, Judge Barbier, was president of the LTLA in 1989-1990. The following year, in 1991, the LTLA filed an amicus brief against tobacco companies with Judge Barbier listed on the motion as President of the LTLA, although at the time he was no longer the president. Listed on this brief with Judge Barbier as counsel for the brief was the lawyer who was also representing the plaintiff, Republic of Panama. Because the allegations against tobacco companies in the amicus brief were similar to the allegations of the plaintiff in this case, and because the lawyer for the plaintiff in this case was also on the brief with Judge Barbier, the Fifth Circuit held that a reasonable person might harbor doubts about the trial judge's impartiality.

The Fifth Circuit also stated that, if the question of whether Section 455(a) requires disqualification is a close one, the balance tips in favor of recusal, citing  In Re: Chevron, 121 F3d 163, 165 (5th Cir. 1997).

The circumstances of the Levitt case were held not to be sufficient for recusal of the judge. The judge's connections to the university were that the judge's wife was a student at the defendant university; the judge received his degrees from the defendant university; and the judge's prior law firm had done business with the defendant university.  Barbara W. Levitt v. University of Texas at El Paso, et al., 847 F.2d 221 (5th Cir. 1988).

In the case at bar, Judge Berrigan teaching a summer school class in Greece for compensation is a much stronger connection with the university than any connection outlined in the Levitt case.

Legislative history indicates that Section 455(a) was meant to lessen the traditional "duty to sit," and, as the Supreme Court has indicated, to require avoidance of even the appearance of partiality.  Liljeberg v. Health Serv. Acquisition Corp., 486 U.S. 847, 860-61, 108 S.Ct. 2194, 2202-03, 100 L.Ed.2d 855 (1988). Recusal may be required even in the absence of actual partiality if there is an objectively reasonable basis for doubting the judge's impartiality. Id See Code of Judicial Conduct, Canon 2 (1973):  "[A] judge should avoid impropriety and the appearance of impropriety in all his activities." (Emphasis supplied).

The proper standard for ascertaining whether a judge's impartiality might reasonably be questioned under Section 455(a) is whether the charge of lack of impartiality is grounded on facts that would create a reasonable doubt, not in the mind of the judge, or even necessarily that of the litigant, but rather in the mind of the reasonable person.  See United States v. Cowden, 545 F.2d 257, 265 (1st Cir. 1976), cert. denied, 430 U.S. 909, 97 S.Ct. 1181, 51 L.Ed.2d 585 (1977).

Section 455(a) requires a contextual, case-by-case analysis. Weighing all the factors in the present case, a reasonable person viewing all the circumstances would question the impartiality of the judge. Therefore, Judge Berrigan should have recused herself.

The Eleventh Circuit case of Dr. Kathleen Johnson Wu, et al. v. Joab Thomas, University of Alabama Board of Trustees, et al., (11th Cir. 1993), considered whether a judge with ties to a university should recuse himself in a case against the university.

In denying plaintiffs' recusal motion, Judge Guin noted that he receives no salary as an adjunct professor and that his duties are limited to letting law students intern in federal court and judicial chambers for one semester. He also wrote that he had not donated money to the University for many years.

On these facts, the Eleventh Circuit held that no reasonable observer would question Judge Guin's impartiality.  The case at bar is distinguished from the Dr. Wu case because Judge Berrigan is receiving compensation from Tulane and she occupies a more prestigious position with the University. Therefore, Judge Berrigan, unlike Judge Guin, should have recused herself.

Three judges have recused themselves from this case because of their extrajudicial association with Tulane University. These judges recognized the need to avoid the appearance of impropriety and have demonstrated compliance with the canons of judicial conduct designed to maintain public confidence in the judiciary.

Magistrate Judge Lance M. Africk recused himself June 22, 1998 from Civil Action 98-1792 because his wife is an employee of Tulane University. [Record Excerpts, Exhibit 7].

Federal District Court Judge Ivan L.R. Lemelle recused himself July 21, 1998 from Civil Action 98-2102 because he serves on the Chancellor's Advisory Board for Tulane University Medical School. [Record Excerpts, Exhibit 8].

Magistrate Judge Joseph C. Wilkinson, Jr. recused himself September 23, 1998 from Civil Action 98-1792 c/w 98-2102 because he is an adjunct faculty member of Tulane University's Law School. [Record Excerpts, Exhibit 9].  He is not paid for his teaching services.  Judge Wilkinson's withdrawal from the case was in response to plaintiff's Motion to Recuse. [Record Excerpts, Exhibit 10].

In a similar discrimination case against Tulane, Asher Rubinstein v. The Administrators of the Tulane Educational Fund, et al., 218 F.3d 392, (5th Cir. 2000), Civil Action No. 95-3343, Judge Schwartz recused himself because he is an adjunct professor and a member of the Board of Administrators of Tulane Medical School. Judge Schwartz receives no remuneration from Tulane. (See Docket No. 2, Minute Entry, entered on October 25, 1995, and Docket No. 4, Order, entered on November 21, 1995).

In the case at bar, the district court should have recused itself because it did receive remuneration from Tulane for teaching in Greece, whereas the four judges above recused themselves for activities that did not involve remuneration from Tulane.

Judge Berrigan abused her discretion in refusing to recuse herself. The remedy requested is recusal of the district court judge and the rescinding of all rulings made by the district court judge since November, 1999, when she learned of the Greece assignment.

4.  The district court erred in granting summary judgment on the retaliation claim by holding that a negative reference letter is not an adverse employment action and by not viewing the facts in the light most favorable to Bernofsky

Bernofsky acknowledges that he did not prevail in his original case of discrimination. This same district court judge granted summary judgment against Bernofsky in that case. However, there is no requirement that a plaintiff must prevail on any underlying claim of intentional discrimination in order to prevail on a claim of retaliation.  Shackelford v. Deloitte & Touche LLP, 190 F.3d 398, 405 n. 4 (5th Cir. 1999). Bernofsky is not attempting to re-litigate his discrimination claim. After Bernofsky was fired by Tulane, and after he recovered from surgery to remove malignant tumors, he sought employment at other universities. Bernofsky's claim is that, during his job search, Tulane retaliated against him by publishing a defamatory negative reference letter [Record Excerpts, Exhibit 17] to the University of Houston and by not responding to Michigan Tech. University's two requests for a reference letter. [Record Excerpts, Exhibits 20,21].

To establish a prima facie case of retaliation under Title VII, Section 1981 and Louisiana law, the plaintiff must show: (1) the employee engaged in activity protected by Title VII; (2) the employer took adverse action against the employee; and (3) a causal connection between the protected activity and the adverse employment action. Shackelford, at 408.

Bernofsky participated in protected activity under Title VII when he filed a lawsuit and an EEOC charge in early 1995 alleging that he had been discriminated against because of anti-Semitism and age discrimination. John Beal, in-house counsel for Tulane, knew of this lawsuit; he was served with the lawsuit. Plaintiff clearly has participated in protected activity, which satisfies the first element of the prima facie case.

Bernofsky can prove the third element of the prima facie case of retaliation by showing that the negative reference letter was sent by Tulane because of his participation in the protected activity, filing his discrimination lawsuit. This letter clearly states that it is being written because of the pending litigation, which was a lawsuit alleging discrimination and is clearly a protected activity. The Beal letter would not have been sent to Wolinsky but for the pending litigation. [Record Excerpts, Exhibit 17].

The only element of the prima facie case of retaliation that the district court decided was not proven was the second element, namely that there was an adverse employment action taken by Tulane. The district court held that, under Mattern v. Eastman Kodak Company, 104 F.3d 708 (5th Cir. 1997), the negative reference letter or silence in not providing a reference letter was not an adverse employment action. The Fifth Circuit itself has never addressed this particular issue.

The district court acknowledged that the Fifth Circuit's narrow view of what constitutes an adverse employment decision is the minority view throughout the country and invites a revisiting of this issue by this Court. [Record Excerpts, Exhibit 3, p.13]. In fact there is only one other circuit that adopted the most restrictive test with the Fifth Circuit. The Eighth Circuit also held that only "ultimate employment actions" such as hiring, firing, promoting, and demoting constitute actionable adverse employment actions.  Ledergerber v. Stangler, 122 F.3d 1142, 1144 (8th Cir. 1997) (transfer involving only minor changes in working conditions and no reduction in pay or benefits is not an adverse employment action).

The Second and Third circuits hold an intermediate position within the circuit split. They have held that an adverse action is something that materially affects the terms and conditions of employment.  Robinson v. City of Pittsburgh, 120 F.3d 1286, 1300 (3rd Cir. 1997) ("retaliatory conduct must be serious and tangible enough to alter an employee's compensation, terms, conditions, or privileges of employment ... to constitute [an] 'adverse employment action'.")  Even with this position, the Third Circuit held in Charlton v. Paramus Bd. of Educ., 25 F.3d 194, 198-200 (3rd Cir. 1994), cert. denied, 513 U.S. 1022, 115 S.Ct. 590, 130 L.Ed.2d 503 (1994):

The need for protection against retaliation does not disappear when the employment relationship ends. Indeed, post-employment blacklisting is sometimes more damaging than on-the-job discrimination because an employee subject to discrimination on the job will often continue to receive a paycheck while a former employee subject to retaliation may be prevented from obtaining any work in the trade or occupation previously pursued.

Charlton, 25 F.3d at 200.

The Court held that the retaliation provision includes former employees as long as the alleged discrimination is related to or arises out of the employment relationship.

In Torres v. Pisano, 116 F.3d 625, 640 (2nd Cir. 1997), the Second Circuit held that, to show an adverse employment action, an employee must demonstrate "a materially adverse change in the terms and conditions of employment."  Even with this middle of the road position on what constitutes an adverse employment action, the Second Circuit held that if an employer refused to provide former employee with postemployment reference letters in retaliation for employee's filing charges with Commission, that would violate 42 U.S.C.A. Section 2000e-3 (Title VII's anti-retaliation statute).  Pantchenko v. C.B. Dolge Company, Inc., 581 F.2d 1052 (2nd Cir. 1978).

The First, Seventh, Ninth, Tenth, Eleventh and D.C. Circuits all take an expansive view of the type of actions that can be considered adverse employment actions.  Wyatt v. City of Boston, 35 F.3d 13, 15-16 (1st Cir. 1994) (adverse employment actions include "demotions, disadvantageous transfers or assignments, refusals to promote, unwarranted negative job evaluations and toleration of harassment by other employees");  Knox v. Indiana, 93 F.3d 1327, 1334 (7th Cir. 1996) (employer can be liable for retaliation if it permits "actions like moving the person from a spacious, brightly lit office to a dingy closet, depriving the person of previously available support services ... or cutting off challenging assignments");  Corneveaux v. CUNA Mutual Ins. Group, 76 F.3d 1498, 1507 (10th Cir. 1996) (employee demonstrated adverse employment action under the ADEA by showing that her employer "required her to go through several hoops in order to obtain her severance benefits");  Berry v. Stevinson Chevrolet, 74 F.3d 980, 986 (10th Cir. 1996) (malicious prosecution by former employer can be adverse employment action);  Rutherford v. American Bank of Commerce, 565 F.2d 1162 (10th Cir, 1977) (Act of defendant, plaintiff's former employer, in advising a prospective employer of fact that plaintiff had filed a sex discrimination charge against defendant was an act of retaliation and, as such, a violation of Title VII making it an "unlawful employment practice" for an employer to discriminate against an employee for making a discriminatory employment charge);  Wideman v. Wal-Mart Stores, Inc., 141 F.3d 1453, 1456 (11th Cir. 1998) (adverse employment actions include an employer requiring plaintiff to work without lunch break, giving her a one-day suspension, soliciting other employees for negative statements about her, changing her schedule without notification, making negative comments about her, and needlessly delaying authorization for medical treatment);  Passer v. American Chemical Soc., 935 F.2d 322, 330-331 (D.C. Cir. 1991) (employer's cancellation of a public event honoring an employee can constitute adverse employment action under the ADEA, which has an anti-retaliation provision parallel to that in Title VII).

The final example of a circuit court interpreting an adverse employment action in a way that is consistent with the plain language of the statute is the Ninth Circuit, which held that the Navy's retaliatory dissemination of a negative employment reference violated Title VII, even if the negative reference did not affect Army's subsequent decision not to hire victim of the discriminatory action. Hashimoto v. Dalton, 118 F.3d 671 (9th Cir. 1997), cert. denied, 118 S.Ct. 1803, 523 U.S. 1122, 140 L.Ed.2d 943.

In Hashimoto, an Asian-American woman alleged that the Department of Navy gave her a negative job reference in retaliation for filing an EEO complaint. The Ninth Circuit recognized that, unlike most cases alleging retaliation where the retaliatory conduct takes the form of discharge, demotion, failure to promote, or the like, a retaliatory negative job reference does not itself inflict tangible employment harm because it requires a prospective employer's subsequent adverse action in response to the reference to create the employment harm. Accordingly, the Ninth Circuit held that disseminating a negative job reference is a personnel action that violates Title VII, even if it does not affect a decision not to hire the victim.

The Ninth Circuit, in Hashimoto, found that the dissemination of an unfavorable job reference was an adverse employment action "because it was a 'personnel action' motivated by retaliatory animus." The Ninth Circuit so found, even though the defendant proved that the poor job reference did not affect the prospective employer's decision not to hire the plaintiff: "That this unlawful personnel action turned out to be inconsequential goes to the issue of damages, not liability." In this case, the Navy was ordered to stop notifying prospective employers of its employees' or former employees' participation in protected activity. Id.

A district court in Illinois held that, even though the employment relationship has technically ended, an employer may violate provision of employment discrimination statute prohibiting retaliation by "blacklisting" or giving negative references to employment agencies and prospective employers.  Bilka v. Pepe's Inc., N.D.Ill.1985, 601 F.Supp. 1254.

A health systems agency's refusal to give female employee a recommendation because of her charge pending before the Commission was violation of 42 U.S.C. Section 2000 e-3.  Sparrow v. Piedmont Health Systems Agency, Inc., 593 F.Supp. 1107 (M.D.N.C., 1984).

The district court in the case at bar takes the position that writing an negative reference letter is not an adverse employment action under Mattern v. Eastman Kodak Co., 104 F3d 702 (5th Cir. 1997).  However, Mattern does not discuss the issue of whether an adverse reference letter is an adverse employment action.  Mattern only discusses pretermination events such as disciplinary filings and reprimands when it gives examples of employment actions that it considers not to be adverse employment actions. The Fifth Circuit states that these lesser employment actions may jeopardize employment in the future.  Mattern, at 708. The implication in this language is that, if these employment actions lead to the ultimate employment decision of termination, then the employee will have an actionable adverse employment action. However, Bernofsky had been terminated long before the negative reference letter was written. The holding by the district court that, under Mattern, a negative reference letter is not an adverse employment action is inconsistent with the language of Mattern, inconsistent with case law, and results in the illogical conclusion that there is no remedy for retaliation by an employer after the employee leaves the employment of the employer.

Regardless of the Fifth Circuit language in Mattern, in the case of Robinson v. Shell Oil Co., 519 U.S. 337 (1997), the United States Supreme Court reversed a Fourth Circuit decision and held that a former employee does have the protection of Title VII's anti-retaliation provisions. In that case, while an EEOC charge was pending, the ex-employee applied for a job with another company which contacted the employee's ex-employer for an employment reference. Claiming that ex-employer gave him a negative reference in retaliation for his having filed the EEOC charge, the ex-employee filed suit under S 704(a) of Title VII, which makes it unlawful "for an employer to discriminate against any of his employees or applicants for employment" who have availed themselves of Title VII's protections. In deciding this case, the U.S. Supreme Court held that there is a cause of action for a negative job reference given by an ex-employer who gives the negative reference in retaliation for the ex-employee exercising his rights under Title VII. Under the Robinson case, the negative reference letter is an adverse employment action, and the district court erred in holding that Bernofsky cannot prove his prima facie case of retaliation because a negative reference letter is not an adverse employment action.

The district court also erred in concluding that the issue in the retaliation claim was whether the issuance of the negative reference letter or Tulane's silence in response to Campbell's request was a determinative factor in the failure of the University of Houston or Michigan Tech. University to hire Bernofsky.

In the case of EEOC v. LB Foster Company, 123 F.3d 746, 754, n. 4 (3rd Cir. 1997), the court held:

The district court improperly focused on the action of the prospective employer and not L.B. Foster in determining whether the EEOC had presented evidence of an adverse employment action. The district court concluded that  '[t]here is no evidence that Foster's response to the telephone call from Johnston Pump negatively influenced Wilson's application for employment with Johnston Pump.'  App. at 588. However, that is not the proper test. All that is required to establish a prima facie case of retaliatory discrimination is proof (1) that the plaintiff engaged in protected activity, (2) that the employer took an adverse action against her, and (3) that a causal link exists between the protected activity and the employer's adverse action.  Kachmar v. SunGard Data Sys., Inc., 109 F.3d 173 (3rd Cir. 1997). An employer who retaliates can not escape liability merely because the retaliation falls short of its intended result.

LB Foster, at 754.

In the case of Hashimoto v. Dalton, 118 F3d 671 (9th Cir. 1997), the Court held that the adverse action is writing the negative job reference, and not the non-hiring by the prospective employer:

Thus, it is beside the point that Lowery's negative job reference was not the reason Hashimoto did not get the job with the Army. Lowery's dissemination of the negative job reference is an actionable employment decision. Hashimoto at 674. Therefore, defendant's negative job reference is an actionable employment decision.

The district court erred in concluding that Bernofsky cannot prove that he did not receive the positions because of Tulane's negative reference and silence. This proof is not required because the adverse employment action is the issuance of the letter and the silence. However, in the alternative, Bernofsky does have evidence that the negative reference caused or contributed to the rejection by the two universities.  Dr. Wolinsky testified:

Q.  You can't guarantee to us that
Dr. Bernofsky would have been hired at
Houston?

A.  No. I couldn't guarantee that.
That is a committee decision. But what I
meant -- I use that word very carefully --
"was a good candidate."  What I meant was
Carl would have made a good candidate,
meaning that he would have made a good
choice.

Very often in searches you get
many people who are not good candidates. In
the case of Dr. Bernofsky, I thought that he
would make a good candidate, meaning that he
could certainly have made the short list.

Q.  If the good candidates make the
short list --

A.  He certainly would have made the
short list.

Q.  This position, this tenure track
position that you say you were hoping that
you could find for him, would that involve
teaching duties as well as research duties?

A.  Yes.

Q.  That is teaching undergraduate or
graduates, or both?

A.  Undergraduates.

[R.1005].

Obviously, the negative reference by Tulane caused Bernofsky not to be included in the short list of candidates, and it caused or contributed to Bernofsky not getting the job in Houston.

Beal, in his negative reference letter, falsely stated that Bernofsky's position was eliminated because Bernofsky no longer had any research funds to support his position. Tulane was aware on February 24, 1995, that Bernofsky had, in fact, obtained the Air Force Grant of $250,876. This was approximately two months before Bernofsky was fired. Beal was aware of the Air Force grant because he mentioned in his letter of May 3, 1995 the need to notify the Air Force that Bernofsky was no longer employed at Tulane [R.1070,1071].

The standard when measuring the causal connection between the protected activity of the employee and the employer's conduct is whether the protected activity of the Plaintiff was "a determinative factor" in the retaliatory act.  In Rubinstein v. The Administrators of the Tulane Educational Fund, 218 F.3d 392 (5th Cir. 2000), the Fifth Circuit stated that 42 U.S.C. §2000e-2(m) (Section 107) and the corresponding remedial provision was applied by the district court to Rubinstein's retaliation claim. This section allows for limited remedies in cases where plaintiffs are able to prove that one motive for the adverse employment action is discrimination, even when the defendant is able to prove that the action would have been taken in the absence of the discriminatory motive. The Fifth Circuit has not ruled on whether or not that provision applies to a retaliation claim. Bernofsky argues that this provision applies to a retaliation claim and "but for" causation is not required. Rubinstein, at 403.

"This Court reviews a district court's denial of a motion for judgment as a matter of law to determine whether, based upon the entire record, a reasonable trier of fact could conclude that retaliation was a determinative factor in the decision not to rehire.  See Hansard v. Pepsi-Cola Metro. Bottling Co., Inc., 865 F.2d 1461, 1465 (5th Cir.), cert. denied, 493 U.S. 842, 110 S.Ct. 129, 107 L.Ed.2d 89 (1989)."  Ray v. Iuka Special Municipal Separate School District, et al., 51 F.3d 1246 (5th Cir. 1995). (Emphasis added).

In another Fifth Circuit case, the Court held:

Because Grimes does not offer any direct evidence of discrimination, she must establish circumstantial evidence of intentional discrimination by demonstrating that RSS's articulated nondiscriminatory reasons were pretextual. To do so, she must offer evidence such as to allow a rational factfinder to make a reasonable inference that race or retaliation was a determinative reason for the employment decision. (Emphasis added).

Grimes v. Texas Department of Mental Health and Mental Retardation, 102 F.3d 137 (5th Cir. 1996).

Whether or not "but for" causation is required in a retaliation case, Bernofsky has proof that the negative reference letter would not have been sent but for the pending discrimination litigation.  It says so in the letter.

After Bernofsky put forth sufficient evidence of a prima facie case, Tulane advanced an allegedly legitimate, non-retaliatory reason for the negative reference letter and silence. Tulane has attempted to justify the Beal letter as truthful and not negative. Bernofsky has presented evidence of pretext. The chart of Bernofsky's grant funding disputes the claim of lack of any grant funding. Beal's own testimony disputes his statement in the letter that Karam was sued individually. Also, Stjernholm testified that, if Beal had not taken over the task of answering Wolinsky, Stjernholm would have written a positive reference letter for Bernofsky. Stjernholm also testified that, if he received a reference letter stating that the applicant sued the department chair personally, it would be a red flag. He would immediately throw out that application for employment. [Record Excerpts, Exhibit 19].

5.  Evidence of a pattern of retaliation by Tulane and a pattern of malicious behavior by Beal

Whether Beal's letter was motivated by retaliatory intent is a fact question for the jury. It is uncontroverted that Dr. Wolinsky at the University of Houston did not ask anyone at Tulane if Bernofsky was in the process of suing Tulane. That information was volunteered by Mr. Beal, Associate General Counsel for Tulane. It is evidence of retaliatory animus that Beal volunteered the information that Bernofsky was suing the University and Dr. Karam personally (false information).  In the Hashimoto case above, the court ordered the Navy to stop informing prospective employers of the plaintiff's protected activity. That is exactly what Beal did in his letter: inform a prospective employer of Bernofsky's protected activity.

Bernofsky has presented evidence to this Court that Tulane retaliated against him because of his participation in protected activities. Beal had malicious intent when he wrote the letter in February, 1997. Evidence of malice is necessary for the claim of defamation below. Bernofsky can demonstrate a pattern of retaliation and maliciousness by Tulane and its agents, Dr. Karam and Mr. Beal, from the time that he filed his lawsuit and EEOC charge in early 1995, until the present. Specific examples of retaliation and malice against Bernofsky after he filed his lawsuit are as follows:

a.  Tulane's Termination was Retaliatory

Without a review of all of the facts of Bernofsky's first lawsuit, the Bernofsky's termination was retaliatory because the reason given, lack of any research funds, is false. Bernofsky had the Air Force grant. In addition, according to Tulane's Guidelines for the Assignment of Research Space:

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

b.  Tulane's Method of Termination was Defamatory

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

According to Article V, Section 1 of the Faculty Handbook, given to Bernofsky in 1976, termination before the end of a specified term may be effected only for "adequate cause," which is defined in Article V, Section 2 as: unfitness to teach, incompetence, lack of scholarly objectivity and integrity, serious misuse of the classroom or of academic prestige, serious interference with the academic freedom of others, gross personal misconduct, or conviction of participation or conspiracy to overthrow the government by force [R.1173].

In the eyes of the academic community, these are the kinds of egregious offenses of which Bernofsky stands accused by inference.

c.  Tulane's Failure to Respond to Inquiries From a Potential Employer

Beal testified that Tulane paid very close attention to letters of inquiry regarding individuals involved in litigation with the University.

It is the medical center's policy that when there is pending litigation and any reference letters come in to be answered by individuals involved in that litigation, that those letters are reviewed by the legal office.

[R.1160].

However, in explaining why Tulane failed to respond to the repeated requests of Dr. Wilbur H. Campbell of Michigan Technological University for information about Bernofsky, the district court accepted Tulane's explanation that it was inadvertence and not deliberate silence. [Record Excerpts, Exhibit 3, p. 16].

In his correspondence of December 9, 1997 to Bernofsky, Campbell indicated that he submitted six letters to Tulane requesting information about Bernofsky. [Record Excerpts, Exhibit 21]. At least two of those letters were still in Tulane's hands at the time they were disclosed to Bernofsky during discovery. [Record Excerpts, Exhibit 22; R.1115]. Thus, Tulane failed to respond to the letters, and they were not lost.

d.  Tulane Subverted an Important Opportunity for Employment

Tulane retaliated against Bernofsky by insisting on conditions that precluded the transfer of his research program and the Air Force grant to another local institution, the Southern Regional Research Center ("SRRC"), a branch of the United States Department of Agriculture ("USDA"). The official policy adopted by Tulane was expressed by its counsel, John Beal, in his letter of May 30, 1995 to Bernofsky's attorney, Roger D. Phipps, which stated that Bernofsky could not maintain any laboratory space at Tulane [R.1174].

e.  Tulane Retaliated Against Bernofsky by Seizing His Equipment, Supplies and Research Materials

In 1975, when Bernofsky transferred his research program from the Mayo Clinic to Tulane, he brought with him approximately $100,000 worth of equipment and supplies that had been purchased with grant funds previously awarded to him. Following his arrival at Tulane, he utilized about $30,000 of his own personal funds to furnish other equipment and supplies that were needed in his research. Moreover, a portion of the $2.17 million in grant funds that Bernofsky ultimately brought to Tulane was also used to obtain equipment and supplies for his program. Less than 10% of Bernofsky's equipment and supplies was obtained with funds supplied directly by Tulane, and Bernofsky provided Tulane with a listing of these items [R.1079-1084].

On May 3, 1995 John Beal, then Assistant General Counsel at Tulane, ordered Bernofsky's office and laboratories locked, and Bernofsky was subsequently permitted to remove personal belongings and papers from his office only [R.1070]. All remaining equipment, supplies, and research materials in his laboratories, including items that were Bernofsky's own personal property, were appropriated by Tulane and redistributed to other Tulane employees following the collapse of negotiations for the transfer of Bernofsky's newly-funded research program to the Southern Regional Research Center [R.1089].

f.  Tulane Retaliated Against Bernofsky by Denying Him Ordinary Professional Rights

During the 4th quarter of 1995, Tulane failed to provide a forwarding address for Bernofsky. Tulane intercepted Bernofsky's mail and failed to forward Bernofsky's messages [R.1178-1181].

6.  The District Court Erred in Granting Summary Judgment on the Claim of Defamation

a.  The Beal Letter Defamed Bernofsky

Tulane defamed Bernofsky when Beal sent a letter on February 21, 1997, to Dr. Wolinsky of the University of Houston, which letter falsely stated that Bernofsky brought litigation against Dr. Karam personally and falsely stated that Bernofsky's position was eliminated because he no longer had any research funds to support his position. [Record Excerpts, Exhibit 17]. Bernofsky did not sue Dr. Karam personally and, at the time he was fired, Bernofsky had research funds in the amount of a quarter million dollars available to support his position, ie., the Air Force grant. The above two false statements were maliciously published by Tulane, they were defamatory to Bernofsky, and they caused injury to Bernofsky.

An action in defamation requires proof of: (1) a false and defamatory statement concerning another; (2) an unprivileged publication to a third party; (3) fault (negligence or greater) on the part of the publisher; and (4) resulting injury.  Trentecosta v. Beck, 703 So.2d 552, 559 (La. 1997).

Defamation is defined as words which tend to harm the reputation of another so as to lower him or her in the estimation of the community or to deter third persons from associating or dealing with him or her.  Sassone v. Elder, 626 So.2d 345, 352 (La.1993).  If a statement  "tends to expose the plaintiff to contempt, hatred, ridicule or obloquy, or causes her to be shunned or avoided, or has a tendency to deprive her of the benefits of public confidence or injure her in her occupation,"  the statement is defamatory.  Martin v. Lincoln General Hospital, 588 So.2d 1329, 1332-33 (La.App. 2nd Cir. 1991).

The false statement that Bernofsky sued the head of his department personally and the false statement that Bernofsky didn't have any research funds injured Bernofsky's reputation as a research professor. Wolinsky testified that the statement in Beal's letter that Bernofsky sued his previous chair was the kiss of death for any efforts for Wolinsky to help him find work. [Record Excerpts, Exhibit 18].

Dr. Dalton, in his expert witness report, stated that Beal's letter would be the death knell to any application for employment at an academic institution. [Record Excerpts, Exhibit 24].

Dr. Stjernholm testified that the statement in the Beal letter about Bernofsky suing the head of the department personally was like a red flag. If that letter went to Dr. Stjernholm from a candidate, he would immediately throw it out. [Record Excerpts, Exhibit 19].

It definitely injures Bernofsky in his occupation as a research professor to falsely state that he no longer had any research funds. These words are defamatory.

Falsity of the two statements is easily proven. Ms. Haynie's expert report opines that the suit initiated by Dr. Bernofsky is litigation against Tulane University Medical School solely and not against Dr. Karam personally. [Record Excerpts, Exhibit 23].

Beal in his deposition admitted that Bernofsky did not sue Dr. Karam personally. [Record Excerpts, Exhibit 22]. Beal is also held to a higher standard of understanding of legal terms because he is a lawyer.

Because there is publication to Wolinsky and the words are false and defamatory, we next examine the elements of fault (negligence or greater) on the part of the publisher and the resulting injury.

Bernofsky has evidence of injury in Wolinsky's testimony that he could not pursue Bernofsky's application for employment even though he thought Bernofsky was qualified enough to make the short list of candidates. [Record Excerpts, Exhibit 18]. Further evidence of injury is Dr. Stjernholm's testimony that he would have written a positive letter of reference for Bernofsky if Beal had not prevented him from doing so. [Record Excerpts, Exhibit 19].

Finally, there is the element of fault (negligence or greater) on the part of the publisher. This element is proven by Bernofsky showing that Beal knew about the Air Force grant years before he wrote the defamatory letter of February 21, 1997. Also, Beal's malice is demonstrated in showing a series of malicious acts. One example is a letter from Beal dated May 30, 1995, that indicates that Tulane did not intend to allow Bernofsky to maintain laboratory space at Tulane if Bernofsky was hired by the USDA. [Record Excerpts, Exhibit 25]. In this letter, in the last sentence, Beal states:  "We will not notify the Air Force until Dr. Jordan and Dr. LaRosa have met and a decision is made by USDA concerning Dr. Bernofsky."  Therefore, Beal knew about the Air Force grant in May, 1995. Yet, he falsely stated that Bernofsky did not have any research funds in his letter to Wolinsky in 1997.

b.  Tulane Did Not Qualify for the Qualified Privilege

The qualified privilege, or conditional privilege, protects information given in good faith to a person with a corresponding interest or duty.  Elmer v. Coplin, 485 So. 2d 171 (La. App. 2d Cir.), writ denied, 489 So. 2d 246 (1986). A "qualified or conditional" privilege is applicable if the communication is (1) in good faith, and is (2) on a subject in which the person making the comment has an interest or in reference to which he has a duty to a person having a corresponding interest or duty.  Hines v. Arkansas Louisiana Gas Co., 613 So. 2d 646, 656-57 (La. App. 2nd Cir.), writ denied, 617 So. 2d 932 (1993). To be in "good faith" within the meaning of the qualified privilege requirements, the person making the statement must not only honestly believe the statement, but must also have reasonable grounds for believing it to be a correct statement. Id.

In the case cited by defendant, Alford v. Georgia-Pacific Corp, 331 So. 558 (La. Ct. App. 1st Cir. 1976), the court stated that:

Of course, such privilege is not absolute, and as such, necessarily has its limits. It can be abused. Prosser, in his treatise Law of Torts, Chapter 19, S 115, points out that such privilege will be lost if published by a defendant in the wrong state of mind. While published with 'malice' is the term often used to denote cases of abused privilege, Prosser points out that this is somewhat of a misnomer. Rather, citing Restatement of Torts, S 603 as his authority, he states that the privilege should be lost if the publication is not made primarily for the purpose of furthering the interest which is entitled to protection.

There is an issue of fact as to whether Mr. Beal's state of mind and purpose meet the requirements for a qualified privilege, whether he honestly believed the statements, and whether he had reasonable grounds to believe his statements were correct. Bernofsky has proven that Beal could not have had reasonable grounds to believe that the two statements in his letter were correct.

c.  L.R.S. 23:291 Is Not a Safe Harbor For Tulane in This Case

L.R.S. 23:291 is very specific in its terms. There is an issue of fact as to whether the statements of Mr. Beal were accurate, were only about Bernofsky's job performance or reasons for separation, and whether the statements of Mr. Beal were knowingly false and deliberately misleading.


K.  CONCLUSION

The district court abused its discretion when it did not recuse itself when Judge Berrigan found out in November, 1999 that she was selected to teach Tulane's Law Summer School class in Greece. Tulane paid Judge Berrigan a stipend of $5,500 for her expenses. 28 U.S.C. §455(a) requires that a judge recuse herself when a reasonable person who knows of all the circumstances would question the impartiality of the judge. Because this statute requires a judge to recuse herself sua sponte, the remedy requested is to rescind all actions taken by this judge after November, 1999.

Bernofsky has proven a prima facie case of retaliation. He engaged in a protected activity. The employer took adverse employment action against him, and there was a causal connection between the protected activity and the adverse employment action. The protected activity was the filing of the EEOC charge and filing of a discrimination lawsuit. The adverse action was the negative reference letter sent to University of Houston and the silence when reference letters were requested from Michigan Tech. University. A negative reference letter is an adverse employment action because the U.S. Supreme Court case of Robinson v. Shell Oil Co. holds that there is a cause of action for a negative reference letter for an ex-employee, because the case law in other circuits is overwhelmingly in favor of a negative reference letter being an adverse employment action, and because the Mattern case in the Fifth Circuit only contemplated pre-termination and not post-termination employment actions in formulating its adverse employment action definition.

In the alternative, if this Court expands its definition of adverse employment action to include the post-termination negative reference letter, Bernofsky has proof that he would have been on the short list of candidates at the University of Houston but for the negative reference letter. That is as much proof as is possible to get that someone is not hired because of a negative reference letter. That letter will keep the candidate from getting to the short list candidate interviews. The university is never sure who is going to be chosen until after the short list candidate interviews. Under the holding of the district court that a negative reference is not an adverse employment action, it is virtually impossible to ever prove a cause of action for a negative reference letter.

The causal connection between the filing of the discrimination lawsuit and the negative reference letter is established by the language of the letter that states it is being sent by in-house counsel and not the professors who worked with Bernofsky only because of the pending lawsuit.

Tulane has articulated the reason for the negative reference letter as the letter is "substantially" accurate and the letter has no negative references to Bernofsky's performance, only to lack of funding. The district court takes the bait, hook, line and sinker. The district court finds the statements substantially true, even if  "technically inaccurate."  The district court goes on to opine, "even if the two disputed statements in Beal's letter can be construed as inaccurate, in the overall context, the plaintiff cannot establish that they were retaliatory."  Isn't Bernofsky entitled to accuracy after working at Tulane for twenty years?  Isn't a lawyer required to be accurate when he has taken on the task of writing a reference letter for the professors?  Aren't two glaring mistakes in a letter of only five sentences evidence of retaliatory intent?  This is especially striking when the letter is written by a lawyer.  Isn't an employer required to be accurate when it is dealing with an ex-employee's ability to find work to support his family?  Bernofsky has evidence of pretext.  He has a letter that shows that Beal knew that Bernofsky had the Air Force grant at the time he was fired.

Bernofsky has evidence of other retaliatory acts by Beal after Bernofsky participated in protected activity. Beal wrote a letter that locked Bernofsky out of the laboratory and resulted in Tulane confiscating equipment that belonged to Bernofsky. He also wrote a letter that Tulane would not assist Bernofsky in his effort to salvage the quarter million dollar Air Force grant by working for a new employer and using some lab space at Tulane, where he had worked for the past twenty years. There is sufficient evidence of retaliatory animus to present a material issue of fact for the jury, especially when all facts are viewed in the light most favorable to Bernofsky. Under the new U.S. Supreme Court guidelines in Reeves, at the summary judgment stage the trial court should only give credence to Tulane's evidence that is uncontradicted and unimpeached, at least to the extent that evidence comes from disinterested witnesses. The district court has erred by giving credence to evidence presented by Tulane that is contradicted by Bernofsky. The summary judgment must be reversed on the retaliation issue when the evidence is viewed under the proper standard of review.

Summary judgment must also be reversed on the claim of defamation because, again, the district court did not view the facts in the light most favorable to Bernofsky. The Beal letter contained false and defamatory statements and was published to Wolinsky. Bernofsky was injured by not being considered for employment and by damage to his reputation in the community. Finally, Beal was at fault for issuing his letter that contained two glaring inaccuracies. His fault can be traced to a retaliatory animus that Beal had toward Bernofsky that started when Bernofsky filed a lawsuit and an EEOC charge alleging discrimination.

It is respectfully requested that summary judgment be reversed and that the case be remanded for trial on the merits by a jury. It is also requested that the presiding judge at the trial have no ties to Tulane.

Respectfully submitted,

s/     Victor R. Farrugia       
Victor R. Farrugia  #19324
Catherine C. Cooper  #26153
VICTOR R. FARRUGIA, A PLC
228 St. Charles Avenue
Suite 1028
New Orleans, LA  70130-2610
(504) 525-0250


FOOTNOTES

1.  Civil Action No. 95-358, Bernofsky v. Tulane University Medical School, 962 F.Supp. 895 (E.D.La. 1997), cert. denied, ___U.S.___, 142 L.Ed. 2d 37, 119 S.Ct. 48 (1998).

2.  The other circumstance considered in the initial motion for recusal was the Honorable Judge Berrigan's membership on the Board of Directors of Tulane's Amistad Research Center, which is partially supported by Tulane and located on the Tulane University campus. Judge Berrigan indicated that her membership had ended several years prior to her ruling. To Bernofsky's knowledge, Judge Berrigan's relationship with the Amistad Research Center has not changed after Judge Berrigan's letter of June 21, 1999.


M.  CERTIFICATE OF SERVICE

I certify that on the 6th day of September, 2000, I served copies of the above Brief in both paper and electronic form by hand delivery on the following counsel of record:

Julie D. Livaudais, Esquire
Chaffe, McCall, Phillips, Toler & Sharpy, LLP
2300 Energy Centre
1100 Poydras Street
New Orleans, LA  70163-2300

s/     Victor R. Farrugia       
      Victor R. Farrugia


N.  CERTIFICATE OF COMPLIANCE

Pursuant to 5th Cir. R. 32.2 and .3, the undersigned certifies this brief complies with the type-volume limitations of Fed. R. App. P. 32(a)(7).

1.  EXCLUSIVE OF THE EXEMPTED PORTIONS IN 5TH CIR. R. 32.2, THE BRIEF CONTAINS (select one):

A.          12,262         words, OR

B.  ______________ lines of text in monospaced typeface.

2.  THE BRIEF HAS BEEN PREPARED (select one):

A.  in proportionally spaced typeface using:

Software Name and Version:       WordPerfect 8.0      

in (Typeface Name and Font Size):      Courier Regular     , OR

B.  in monospaced (nonproportionally spaced) typeface using:

Typeface name and number of characters per inch:

___________________________________________

3.  THE UNDERSIGNED UNDERSTANDS A MATERIAL MISREPRESENTATION IN COMPLETING THIS CERTIFICATE, OR CIRCUMVENTION OF THE TYPE-VOLUME LIMITS IN FED. R. APP. P. 32(a)(7), MAY RESULT IN THE COURT'S STRIKING THE BRIEF AND IMPOSING SANCTIONS AGAINST THE PERSON SIGNING THE BRIEF.

s/     Victor R. Farrugia       
   Signature of filing party


Record Excerpts
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United States Court of Appeals for the Fifth Circuit
Case No. 00-30704
Carl Bernofsky v. Administrators of the Tulane Educational Fund
U.S. District Court for the Eastern District of Louisiana
Civil Action No. 98-1792 c/w 98-2102

TABLE OF CONTENTS

  1. Civil Docket for Case No. 98-CV-1792, U.S. District Court for the Eastern District of Louisiana, Bernofsky v. Tulane, case filed 6/18/98.

  2. Civil Docket for Case No. 98-CV-2102, U.S. District Court for the Eastern District of Louisiana, Bernofsky v. Tulane, case filed 7/17/98.

  3. Order and Reasons, Bernofsky v. Tulane, Civil Action No. 98-1792 c/w 98-2102, Docket #81, 4/18/00 [R.912-940].

  4. Judgment, Bernofsky v. Tulane, Civil Action No. 98-1792 c/w 98-2102, Docket #82, 4/18/00 [R.910].

  5. Order and Reasons, Bernofsky v. Tulane, Civil Action No. 98-1792 c/w 98-2102, Docket #88, 5/31/00 [R.845-850].

  6. Notice of Appeal, Bernofsky v. Tulane, Civil Action No. 98-1792 c/w 98-2102, Docket #89, 6/5/00 [R.843].

  7. Minute Entry, Magistrate Judge Lance M. Africk, Bernofsky v. Tulane, Civil Action No. 98-1792, Docket #2, 6/22/98 [R.246].

  8. Minute Entry, Judge Ivan L.R.Lemelle, Bernofsky v. Tulane, Civil Action No. 98-2102, Docket #2, 7/21/98 [R.25].

  9. Minute Entry, Magistrate Judge Joseph C. Wilkinson, Jr., Bernofsky v. Tulane, Civil Action No. 98-1792 c/w 98-2102, Docket #14, 9/23/98 [R.210].

  10. Motion for Recusal Bernofsky v. Tulane, Civil Action No. 98-1792 Docket #8, 9/9/98 [R.226-232].

  11. Guide to Judiciary Policy and Procedures, Volume II: Codes of Conduct for Judges and Judicial Employees (reissued 6/15/99), at p. V-39, §3.4-3, "Law School Teaching" [R.905,906].

  12. Minute Entry, Judge Ginger Berrigan, Bernofsky v. Tulane, Civil Action No. 98-1792 c/w 98-2102, Docket #24, 11/23/98 [R.164].

  13. Letter of 6/21/99 from the Honorable Ginger Berrigan to Charles Fulbruge, III, Re: 99cv30614, In Re: Bernofsky [R.903,904].

  14. Tulane Law School Summer School Abroad 2000 Catalog [R.897-899].

  15. Tulane Law School International & Comparative Law & European Legal Studies Catalog [R.900,901].

  16. Letter of 4/4/00 from Carl Bernofsky to the Honorable Ginger Berrigan [R.902].

  17. Letter of 2/21/97 from John R. Beal to Ira Wolinsky [R.543].

  18. Deposition testimony of Ira Wolinsky [R.1149-1151].

  19. Deposition testimony of Rune L. Stjernholm [R.1157].

  20. Letter of 5/27/97 from Wilbur H. Campbell to Jim D. Karam [R.1116].

  21. Letter of 12/9/97 from Wilbur H. Campbell to Carl Bernofsky [R.1118].

  22. Deposition of John R. Beal [R.1160].

  23. Expert Opinion Letter of Barbara G. Haynie 1/27/00 [R.1128].

  24. Expert Witness Report of Thomas R.Dalton, 2/7/00 [R.1132,1133].

  25. Letter of 5/30/95 from John R. Beal to Roger D. Phipps [R.1072,1073].

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CERTIFICATE OF SERVICE

I certify that on the 6th day of September, 2000, I served copies of the above Record Excerpts by hand delivery on the following counsel of record:

Julie D. Livaudais, Esquire
Chaffe, McCall, Phillips, Toler & Sharpy, LLP
2300 Energy Centre
1100 Poydras Street
New Orleans, LA  70163-2300

s/     Victor R. Farrugia       
      Victor R. Farrugia

Help Balance the Scales of Justice!
 
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