Carl Bernofsky v. Tulane University
 
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SHOULD JUDGE BERRIGAN BE CENSURED?
GUIDANCE FROM ABOVE

Lawsuit Against Tulane University for Retaliation and Defamation

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

(Case No. 00-30704, U.S. Court of Appeals for the Fifth Circuit, April 24, 2001)

Text only version.  Images of Exhibits 1 to 8 are currently not available.  Links to text of 3 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
 

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. H. Michael Bush
  9. Chaffe, McCall, Phillips, Toler & Sarpy, L.L.P.
  10. Administrators of the Tulane Educational Fund

s/     Victor R. Farrugia       
   VICTOR R. FARRUGIA


STATEMENT OF COUNSEL

I, Victor R. Farrugia, counsel of record for appellant, Dr. Carl Bernofsky, express a belief, based on a reasoned and studied professional judgment, that this appeal involves the following two questions of exceptional importance:

1. The district court judge asked for guidance from the appellate court on whether she acted appropriately when she did not recuse herself after she accepted a Tulane Law School summer teaching assignment in Greece with a stipend of $5500.00 on the eve of her decision to grant summary judgment in favor of Tulane. The per curiam unpublished opinion with a dissent by Chief Judge King provides no guidance on this issue.

2. The district court welcomed a revisiting of the issue of what constitutes an adverse employment action under Mattern v. Eastman Kodak Company, 104 F3d 708 (5th Cir. 1997), because this circuit's position on this issue is the minority view among the circuits. Our sister circuit, the Eleventh, has rejected the Fifth Circuit view as being "inconsistent with the plain language" of the statute. Although the Fifth Circuit has not addressed whether or under what circumstances a negative job reference by an ex-employer would qualify as an adverse employment action, the district court reluctantly and inappropriately applied Mattern's definition of adverse employment action to hold that a negative reference letter is not an adverse employment action. The panel's one sentence, unpublished opinion on the merits of this case stated that, "even if Tulane's responses to the requests for reference be considered as adverse employment actions, there was no error of any significance..."  In this important case of first impression on this issue in this circuit, the panel decision has given no guidance.

s/     Victor R. Farrugia       
      Victor R. Farrugia

228 St. Charles Avenue
Suite 1028
New Orleans, LA 70130-2610
(504) 525-0250
Attorney of Record for
Dr. Carl Bernofsky

TABLE OF CONTENTS
 
(Page numbers refer to original document pages and here are hyperlinked to the appropriate reference.)
Certificate of Interested Persons ii
Statement of Counsel iii
Table of Contents v
Table of Authorities vi
I. Statement of Issues 1
II. Course of Proceedings and Disposition of the Case 1
III. Statement of Facts 2
IV. Argument 6
V. Conclusion 15
Certificate of Service 16

EXHIBITS
1. Panel opinion of Circuit Judges Reavley and Jones, with dissent by Chief Judge King.
2. Order and Reasons of Judge Berrigan, dated May 30, 2000, stating her reasons why she did not recuse herself.
3. Letter of April 4, 2000 from Dr. Bernofsky to Judge Berrigan, requesting that she recuse herself.
4. Orders in Pending Cases of the U.S. Supreme Court for March 19, 2001.
5. The Tulane Hullabaloo News, dated April 6, 2001.
6. Transcript, pages 1-4, Oral Argument at U.S. Court of Appeals, Fifth Circuit, before Chief Judge King, Circuit Judges Jones and Reavley on April 3, 2001.
7. Transcript, pages 17-20, Oral Argument at U.S. Court of Appeals, Fifth Circuit, before Chief Judge King, Circuit Judges Jones and Reavley on April 3, 2001.
8. Transcript, pages 9-12, Oral Argument at U.S. Court of Appeals, Fifth Circuit, before Chief Judge King, Circuit Judges Jones and Reavley on April 3, 2001.

 

TABLE OF AUTHORITIES
CASES
Hashimoto v. Dalton, 118 F.3d 671 (9th Cir. 1997), certiorari denied, 118 S.Ct. 1803, 523 U.S. 1122, 140 L.Ed.2d 943 13
Levitt v. University of Texas at El Paso, et al., 847 F.2d 221 (5th Cir. 1988) 9
Liteky v. U.S., 510 U.S. 540 (1994) at 548, 114 S.Ct. 1147, 127 L.Ed.2d 474 10
Mattern v. Eastman Kodak Company, 104 F3d 708 (5th Cir. 1997) iii, 1,
11, 12
Robinson v. Shell Oil Co., 519 U.S. 337 (1997) 14
Rubinstein v. Administrators of the Tulane Educational Fund, Case Nos. 00-789 and 00-996 6, 7
United States v. Jordan, 49 F3d 152, 156 (5th Cir. 1995) 15

STATUTES
28 U.S.C. Section 455(a) 9

 

I.  Statement of Issues that Merit En Banc Consideration

A.  Whether the district court judge abused her discretion in not recusing herself after she accepted a Tulane Law School summer teaching assignment in Greece with a stipend of $5500.00 in the midst of presiding over litigation against Tulane University (Administrators of the Tulane Educational Fund).

B.  Whether the district court erred in concluding that under Mattern v. Eastman Kodak Company, 104 F3d 708 (5th Cir. 1997), the negative reference letter was not an adverse employment action in Dr. Bernofsky's claim for retaliation under Title VII of the Civil Rights Act of 1964.

II.  Course of Proceedings and Disposition of the Case

Dr. Bernofsky was denied a jury trial by the district court judge in his first case of discriminatory termination of his employment of twenty years at Tulane. In 1997, the district court judge granted summary judgment in favor of Tulane in Dr. Bernofsky's first case. The U.S. Court of Appeals, Fifth Circuit, affirmed the decision, and the U.S. Supreme Court denied a petition for certiorari in 1998. Justice Scalia did not recuse himself from that determination. In February, 1999, before Tulane offered Judge Berrigan the teaching assignment in Greece, Chief Judge King dismissed a judicial misconduct complaint filed by Dr. Bernofsky, which alleged that Judge Berrigan should have recused herself based on adjunct teaching at the law school and a prior affiliation with Tulane's Amistad Research Center.

Dr. Bernofsky filed the case presently before this Court because Tulane gave him a negative reference letter when he applied for work at the University of Houston and because Tulane did not respond at all to a reference inquiry from Michigan Tech. The case before this Court was also dismissed by Judge Berrigan by granting summary judgment in favor of Tulane. However, on this occasion, the summary judgment was granted two weeks after Dr. Bernofsky asked Judge Berrigan, in writing, to recuse herself because Judge Berrigan was given a teaching assignment in Greece by Tulane Law School, with a stipend of $5500.00. See Bernofsky letter of April 4, 2000 at Exhibit 3. The trial judge denied a Motion for Recusal, which was based upon her not disclosing her teaching position in Greece, and her accepting the teaching position with $5,500.00 stipend without recusing herself from this case. See Exhibit 2. The panel decision affirmed the actions of the district court judge; however, the dissent by Chief Judge King stated that the district court judge should have recused herself and that she would reverse the judgment and remand with instructions to send the case to another judge.  See Exhibit 1.

III.  Statement of Facts

Dr. Bernofsky was a research professor at Tulane for approximately 20 years. After overcoming some serious health problems that occurred about the time Tulane fired him, Dr. Bernofsky attempted to return to the work force in early 1997. After mailing out over 50 employment inquiries, he got preliminary interest for his services from the University of Houston and Michigan Tech.

The University of Houston and Michigan Technological University submitted inquiries to three of Bernofsky's colleagues at Tulane requesting information about his work performance and other issues that would be of importance in helping these potential employers reach a decision about finding a position for Bernofsky at those institutions. These particular colleagues were selected because, in Dr. Bernofsky's twenty years at Tulane, he mostly worked under Dr. Stjernholm, Dr. Steele, and Dr. Karam. In fact, Dr. Stjernholm had provided positive reference letters for Dr. Bernofsky in the past. The request from the University of Houston stated, in pertinent part:
"Dr. Carl Bernofsky, formerly of your department, has inquired here about the possibility of an academic position. His training, experience, and specialties do have interest for us. Before investigating possibilities with Dr. Bernofsky, I would like to get an evaluation from you as to his performance in research, teaching, and departmental citizenship as a faculty member in your department."

(Letter of Ira Wolinsky to Rune Stjernholm, Feb. 7, 1997)

Instead of responses from Dr. Stjernholm, Dr. Steele, and Dr. Karam, they were instructed not to respond by Tulane's counsel, John Beal, who took it upon himself to respond in their place.

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. (Emphasis added)

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. (Emphasis added) 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.

This letter was not responsive to the request for comment on Dr. Bernofsky's performance. Instead, Mr. Beal volunteered the information about Dr. Bernofsky's lawsuit against Tulane. Mr. Beal incorrectly stated that Bernofsky sued Dr. Karam personally. Dr. Karam 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

Before Bernofsky was terminated, he obtained a U.S. Air Force grant for a quarter million dollars. The final version of the budget of the Air Force Grant was approved by Tulane on 2/24/95, two months before Bernofsky's termination on 4/21/95. The total grant was for $124,921, year 1 and $125,955, year 2. [R.1067,1068]

Judge Berrigan learned of her teaching assignment in Greece in November, 1999. She did not disclose this fact to Dr. Bernofsky or his counsel of record. This nondisclosure is particularly egregious because Dr. Bernofsky had tried to get Judge Berrigan to recuse herself on several prior occasions.

Dr. Bernofsky learned of Judge Berrigan's teaching assignment in Greece in April, 2000. He immediately wrote Judge Berrigan a letter asking for her recusal. See Exhibit 3. Judge Berrigan did not respond to that letter. However, two weeks after Dr. Bernofsky's request for recusal, Judge Berrigan issued her ruling on the merits of the case, granting summary judgment in favor of Tulane and dismissing all of Dr. Bernofsky's claims.

Unbeknownst to Dr. Bernofsky and his counsel at the time of oral argument on April 3, 2001, Justice Scalia had recused himself from consideration of a petition for certiorari in the case of Asher Rubinstein v. Administrators of the Tulane Educational Fund, Case Nos. 00-789 and 00-996, the same defendant as in the case at bar.  See Exhibit 4.  Justice Scalia participated in the Tulane Summer School Abroad four times and is scheduled to go to Greece this summer in the judge's position that Judge Berrigan was given last year.  See Exhibit 5.  Although both Justice Scalia and Judge Berrigan taught at the same Tulane Law School summer school in Greece, Justice Scalia recused himself from participating in the Rubinstein case with Tulane as a party; yet, Judge Berrigan did not recuse herself in the case at bar.

IV.  Argument

A.  The district court judge abused her discretion in not recusing herself after she accepted a Tulane law school summer teaching assignment in Greece with a stipend of $5,500.00 on the eve of her decision to grant summary judgment in favor of Tulane.

Chief Judge King in her dissent states that a reasonable person would view the summer teaching assignment in Greece as "something of a plum." 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, 2001; 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 include four Justices of the U.S. Supreme Court. Chief Justice Rehnquist and Justice Scalia participated in the program more than one year.

At oral argument, when Counsel for Bernofsky recited the above participation of the U.S. Supreme Court Justices who were paid by Tulane for teaching in its summer program abroad, Circuit Judge Reavely asked:
JUDGE REAVLEY:

"Would they all be recused if Cert is applied for?"

MR. FARRUGIA:

". . . I'm not sure that just the consideration of Cert
would warrant them recusing themselves. But I think
[if] the case actually got to the Supreme Court, and
it was Justice Scalia who has gone four times on Tulane's
nickel, and a case came up with Tulane, I think Justice
Scalia probably should recuse himself, yes."

Transcript, Oral Argument, Appellate Case No. 00-30704, April 3, 2001, at 4, lines 12-25.  See Exhibit 6.

Tulane was involved in two petitions for certiorari that recently went before the U.S. Supreme Court: Administrators of the Tulane Educational Fund v. Rubinstein, Case No. 00-789, filed 11/13/00, and Rubinstein v. Administrators of the Tulane Educational Fund, Case No. 00-996, filed 12/15/00.  Attorney Shuler was Counsel of Record for Tulane in both Rubinstein cases.

Counsel for Dr. Bernofsky correctly opined at oral argument that Justice Scalia, who was paid by Tulane to teach in Greece this year, should recuse from cases in which Tulane is a party.  In the above two Supreme Court cases involving Tulane, Justice Scalia did, in fact, recuse himself from both the consideration and decision of these petitions, which were denied by order on March 19, 2001.  See Exhibit 4.

Attorney Shuler, who would have known by April 3rd that Justice Scalia had recused himself from the above Tulane cases, was not forthcoming with this information to the appellate court, even though the court had indicated a strong interest in this issue earlier in the oral argument.  Shuler's oral argument, nevertheless, included the argument that, because the U.S. Supreme Court Justices did not recuse themselves, then Judge Berrigan does not have to recuse herself:
MR. SHULER:

Indeed, if such was the law, Justices Ginsburg, Scalia, Blackmun
and Rehnquist would have to recuse themselves from Bernofsky's
writ application, his mandamus application in the earlier case,
inasmuch as they also taught at Tulane's Summer Program in
Greece. You can see Plaintiff's record excerpt 15 for the
evidence of that. There's no rule that supreme court
justices or appellate justices are treated differently under the
Code of Judicial Conduct than the trial judges.

Under 455A, if Judge Berrigan is presumed to have an appearance
of partiality because she taught at Tulane's Summer Program in
Greece, so too did Justices Blackmun, Scalia, Rehnquist and
Ginsburg.
(Bold emphasis added).

Transcript, Oral Argument, Appellate Case No. 00-30704, April 3, 2001, at 19, lines 10-25.  See Exhibit 7.

This is a strange and misleading statement from the counsel of record in the Rubinstein cases, made two weeks after Justice Scalia recused himself in those cases.

Clearly, Judge Berrigan, who is in a similar position as Justice Scalia with respect to the receipt of funds from Tulane to teach abroad, should have recused herself from these proceedings involving Tulane. The federal law recusal statute is mandatory, not optional. The Fifth Circuit has set the standards for recusal in the case of 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."  The Levitt case goes on to state that, "Because 28 U.S.C. Section 455(a) focuses on the appearance of impartiality, as opposed to the existence in fact of any bias or prejudice, a judge faced with a potential ground for disqualification ought to consider how his participation in a given case looks to the average person on the street."

The opinion of the average person on the street would surely agree with the opinion of Chief Judge King and Justice Scalia that there is an appearance of partiality when a judge decides a case in favor of a party who gives that judge a plum teaching assignment in Greece with a $5,500.00 stipend.

Judge Berrigan also had a duty to disclose the facts of her teaching assignment to Dr. Bernofsky and her counsel. Liteky v. U.S., 510 U.S. 540, 548, 114 S.Ct.1147, (1994).  She failed to make this disclosure.

The second reason that Judge Berrigan should have recused herself is that the Code of Conduct for United States Judges mandates recusal for any judge who teaches at a law school.  Section 3.4-3(a) of the Code provides:
A judge who teaches at a law school should recuse from all cases involving that educational institution as a party. The judge should recuse (or remit) from cases involving the university, as well as those involving the law school, where the judge's impartiality might reasonably be questioned in view of the size and cohesiveness of the university, the degree of independence of the law school, the nature of the case and related factors.  Similar factors govern recusal of judges serving on a university advisory board.

Judge Berrigan, in her opinion (Exhibit 2, page 4), states that this rule does not provide clear guidance.  She stated that the first sentence does not distinguish between a paid and unpaid teaching position.  That distinction became irrelevant when Tulane paid Judge Berrigan a stipend of $5,500.00.

Chief Judge King asked both counsel for Dr. Bernofsky and counsel for Tulane for information on the relationship of Tulane's Law School to Tulane University:
". . .[W]hat do we know from this record about
the size and cohesiveness of Tulane University,
the degree of independence of the law school.
What do we know about that on this record?"

Transcript, Oral Argument, Appellate Case No. 00-30704, April 3, 2001, p. 12, lines 16-19. See Exhibit 8.

Chief Judge King in her dissent, concluded that, since there is no evidence of attenuation in the relationship between the Fund (Tulane University) and the Law School, that she would conclude that a reasonable person might question Judge Berrigan's impartiality. Clearly Chief Judge King would recuse Judge Berrigan.

Based upon the fact that there is no evidence in the record of the relationship between the university and the law school, the burden of producing evidence of any attenuation in that relationship would be upon Tulane and not Dr. Bernofsky.

It should be noted that three judges previously recused themselves from the present case because of their association with Tulane: Magistrate Judge Lance M. Africk (Record Excerpts, Exhibit 7), District Court Judge Ivan L.R. Lemelle (Record Excerpts, Exhibit 8), and Magistrate Judge Joseph C. Wilkinson, Jr. (Record Excerpts, Exhibit 9).

Chief Judge King concluded her dissent by stating that she would reverse the judgment and remand with instructions to send the case to another judge.

B. The district court erred in concluding that under Mattern v. Eastman Kodak Company, 104 F3d 708 (5th Cir. 1997), the negative reference letter is not an adverse employment action in a claim for retaliation under Title VII of the Civil Rights Act of 1964.

The district court clearly holds that a negative reference letter is not an adverse employment action. Record Excerpts, Exhibit 3, p.14.  The district court went on to state that the adverse employment action is the failure of the prospective employer to hire Bernofsky. Because of this conclusion by the district court, the district court then concluded that Bernofsky offered no proof that the negative reference letter was a determinative factor in Bernofsky not being hired. Although this is not true, and although Bernofsky did offer evidence that he would have made the short list of candidates at the University of Houston but for the negative reference letter, this entire line of inquiry is misplaced. Original Brief at page 37.

If the district court had correctly concluded that a negative reference letter is an adverse employment action, it would not be necessary to prove that Bernofsky was not hired because of the letter to the University of Houston and the non-response to Michigan Tech.

The district court invites this Court to revisit its minority position of adverse employment actions stated in Mattern v. Eastman Kodak Company, 104 F.3d 708 (5th Cir. 1997). Record Excerpts, Exhibit 3, page 13. Using the restrictive language in Mattern, the district court hesitantly concluded that a negative reference letter was not an adverse employment action.  That conclusion was error by the district court.

Mattern does not discuss the issue of whether a negative reference letter is an adverse employment action. Mattern only discusses pre-termination 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, unless the ex-employee can prove that he was not hired by a subsequent employer because of the negative reference.

The Ninth Circuit held that the Navy's retaliatory dissemination of negative employment reference violated Title VII, even if the negative reference did not affect Army's subsequent decision not to hire Ms. Hashimoto, a victim of discriminatory action by the Navy. Hashimoto v. Dalton, 118 F.3d 671 (9th Cir. 1997), certiorari 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.  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.

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.

The panel majority sidestepped the issue here by stating, "even if Tulane's responses to the requests for reference be considered as adverse employment actions, there was no error of any significance and Bernofsky presents no evidence of improper motive or defamation."  The improper motive is the Beal letter, which volunteered the information that Dr. Bernofsky sued Tulane. This is exactly what the Navy was ordered by the Ninth Circuit to stop doing, namely notifying prospective employers of former employees' participation in protected activity. The reference request did not ask for reasons for termination, but rather just for evaluation of past performance. The defamation is obvious in the letter when Beal states that Bernofsky had no research funds at a time when he had the Air Force grant of a quarter million dollars.

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 §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 that 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.

V.  Conclusion

This case should be heard en banc because two errors of exceptional public importance were made by the district court. The district court did not recuse itself under circumstances that a reasonable person might question the impartiality of the district court judge. Fundamental to the litigant is the right to a fair and impartial trial. Fundamental to the judiciary is the public's confidence in the impartiality of our judges and the proceedings over which they preside. U.S. v. Jordan, 49 F3d 152, 156 (5th Cir. 1995).  Public confidence in the impartiality of our judges will be shattered if this Court does not reverse the judgment and remand this case to a judge who appears to be impartial.  The second error by the district court judge is to expand the definition of adverse employment action under Mattern to include negative reference letters, which denies to employees the right to be free from retaliation from their ex-employers for participating in protected activity.  These are matters of exceptional public importance, and they should be considered by this Court en banc.

Respectfully submitted,

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

 

CERTIFICATE OF SERVICE

I certify that on the 25th day of April, 2001, I served copies of the above Petition for Rehearing En Banc by U.S. Mail, postage prepaid, and properly addressed on the following counsel of record:

G. Phillip Shuler, III, Esquire
Chaffe, McCall, Phillips, Toler & Sarpy, LLP
2300 Energy Centre
1100 Poydras Street
New Orleans, LA 70163-2300

s/     Victor R. Farrugia       
   VICTOR R. FARRUGIA

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