Lawsuit Against Tulane University for Discriminatory Discharge
Second Amended Complaint
(Case No. 95-0358, Docket No. 34, November 21, 1995)
UNITED STATES DISTRICT COURT FOR
THE EASTERN DISTRICT OF LOUISIANA
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * DR. CARL BERNOFSKY * CIVIL ACTION Plaintiff * No. 95-0358 VERSUS * * SECTION "C" (2) TULANE UNIVERSITY MEDICAL SCHOOL * Defendant * JUDGE BERRIGAN * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
SECOND AMENDED COMPLAINT
- This is an action brought by plaintiff to enjoin the defendant's racially discriminatory practices as prohibited by 42 U.S.C. Section 1981. Jurisdiction of this court is established by 42 U.S.C. Section 1981, and 28 U.S.C. Section 1331, 1343 and 1367. The Court's supplemental jurisdiction of claims arising under Louisiana law is invoked.
- Venue is in this court because the employment discrimination took place in this district.
- Plaintiff, Dr. Carl Bernofsky, is a male of Jewish origin and surname who is a citizen of the State of Louisiana and domiciled in Orleans Parish Louisiana.
- Dr. Carl Bernofsky hereby requests and demands a trial by jury on all issues.
- Defendant, Tulane University School of Medicine, an institution of higher learning offering undergraduate and graduate courses, is a citizen of the State of Louisiana and domiciled in Orleans Parish Louisiana. At all times material to this action, defendant has acted under color or custom or usage of law and the laws of the State of Louisiana, and continues to so act.
- Defendant has engaged in a pattern of continuous discrimination against plaintiff and continues to do so.
- Plaintiff was hired by defendant in 1975 as a Visiting Associate Professor. In 1980 he was promoted to Research Associate Professor. Subsequently in 1983, defendant promoted plaintiff to the rank of Research Professor.
- Beginning in 1977 and thereafter, plaintiff was repeatedly told by his Department Chairman that he would be offered the next tenured position that became available.
- Defendant made statements to third parties in defendant's grant applications, including the National Cancer Institute and the National Institutes of Health, that plaintiff would be tenured.
- Following a subsequent retirement in the Biochemistry Department, plaintiff inquired about defendant's conversations with him regarding a tenured position.
- The Dean of the Medical School informed plaintiff that an affirmative action search was required before the tenured position ("regular position") within the department would be filled.
- Around 1988-1989, the open tenured position was given to a female professor without a search being conducted.
- In 1990, after the tenured position had been filled, plaintiff was told that a search was not required to convert a Research Associate Professor's position to a tenure track regular position.
- Throughout this period, because of the quality of plaintiff's scholarship and national and internationally recognized research bestowed on defendant, plaintiff was repeatedly reappointed to continue in the position of Research Professor at yearly intervals.
- Throughout this employment, plaintiff financed his research by obtaining outside grant money to support his research program which involves investigation into "free radicals," mechanisms of inflammatory tissue damage, human cell models for early detection of toxic substances, tumor-specific endonucleases, and studies of environmental carcinogens.
- Prior to joining the faculty at Tulane University School of Medicine, plaintiff was an Associate Professor of Biochemistry at the Mayo Medical School, Rochester, Minnesota.
- Plaintiff was a Postdoctoral Research Fellow at Case-Western Reserve University.
- Plaintiff is a member of the following Professional Societies: American Society of Biochemistry and Molecular Biology, Oxygen Society, EPR Society, New York Academy of Sciences, American Chemical Society, American Association for the Advancement of Science, Phi Lamda Upsilon, Sigma Xi.
- Plaintiff has published numerous articles and papers in major journals in his field.
- Plaintiff has received grants from the National Institutes of Health and National Science Foundation to continue his cancer research which, in lay terms, encompasses leukemia research.
- Plaintiff has made significant discoveries.
- Among these, plaintiff is the discoverer of the adenine nucleotide free radical.
- Although plaintiff's position as a Research Professor did not require him to teach, for sixteen years he taught an advanced course in bioenergetics at the Medical School.
- Plaintiff's Curriculum Vitae is used by the school when recruiting graduate students and faculty members and securing facilities grants.
- As per the mutual understanding of the parties, each successive year since 1975, plaintiff has been reappointed for a one year term to continue on the faculty in a research appointment with the additional understanding that he would be reappointed the following year as long as his research program continued.
- Around 1977 or 1978, two of plaintiff's major grants were not renewed.
- For over one year, plaintiff continued in his position on the faculty and continued his research efforts until a new grant proposal was accepted and he received new funding.
- Defendant, with full knowledge of the temporary period when plaintiff ran out of research funds, continued to allow plaintiff to remain on the faculty and conduct his research program in the labs assigned to plaintiff at the Medical School.
- Around 1992, Jim D. Karam, a native of Lebanon, was named Department Chairman.
- Immediately, Karam began to interfere with plaintiff's programs.
- Karam interfered and discriminated against plaintiff in a myriad of ways, not the least of which was his refusal to provide space for a $250,000.00 Electron Paramagnetic Resonance Spectrometer ("EPR") purchased with funds which were awarded to the Medical School by the Louisiana Board of Regents based on a proposal listing plaintiff as the principal investigator.
- Because of Karam's discriminatory actions, the $250,000.00 EPR machine remained crated and unused for nearly a year. This action greatly hampered plaintiff's research efforts and interfered with plaintiff's ability to secure additional research funds.
- During 1992-1994, plaintiff had active grants in the amount of approximately $750,000.00.
- The above mentioned grants ended in 1994.
- Currently, plaintiff has a $250,000.00 grant proposal which has been funded by the United States Department of Defense.
- Throughout 1994, Karam harassed plaintiff about the sources of additional new funding. Upon information and belief, Karam offered false and misleading information to possible collaborators and funding sources which made it impossible for plaintiff to secure research funds before his 1994 grants ran out.
- Karam devised a scheme to produce an unflattering evaluation of plaintiff, has now refused to honor his current appointment through July 1995, and has refused to reappoint him to his faculty position for the next year even though plaintiff's research program is continuing, and he has several significant papers in progress.
- Karam interfered with plaintiff's staff, Doctor Bandara and Doctor Tang, whom plaintiff paid exclusively with plaintiff's grant funds.
- Karam forced Doctor Bandara's and Doctor Tang's resignations in 1994.
- Karam treated other non-Jewish professors differently.
- Upon information and belief, Karam provided department funds to pay assistants' salaries under circumstances where grant proposals ran out and new funds had not been granted.
- It is customary to provide "bridge funding" between receipt of grants.
- After Karam became the Department Chairman, due to the discriminatory treatment plaintiff began experiencing, plaintiff requested that Karam put his name up for conversion to a tenured position as had been promised throughout his employment.
- Karam replied repeatedly that plaintiff's position was secure because, after having been a full research professor for so many years, plaintiff had "de facto" tenure.
- The last statement by Karam regarding this issue was made to plaintiff during a conversation on January 31, 1994.
- Throughout plaintiff's employment at Tulane School of Medicine, plaintiff's previous Department Chairman promised him that he would become tenured when a position became available and, in the meantime, he would be appointed annually with subsequent renewals as long as he conducted his research program at Tulane School of Medicine.
- Based on such promises, plaintiff continued to secure outside grant funding to support his research program and has published articles and papers in the most respected scientific journals in his field.
- The termination of plaintiff's appointment for 1995 will cause a loss of the $250,000.00 grant funds and will irreparably harm his research program and professional reputation.
- After nineteen years of consistent grant funding, which also brought considerable additional indirect funding to defendant, due to a brief period where his funds have run out, and before he secured additional funding which was received in April 1995, Karam elected to terminate his appointment for 1995, refused to reappoint him for 1996, and refused to put his name up for conversion to a tenured position which had occurred with numerous other research professors on the Medical School faculty.
- During this time, Karam has also hired additional, younger, less qualified Ph.D's to join the Department. Defendant refused to retain plaintiff on the basis of age and race. Plaintiff's educational background and experience render him eminently qualified for the position he has held.
- Of the two Jewish professors in the department other than plaintiff, Karam has stripped committee responsibilities from one, and has discriminated against the other in the awarding of departmental resources to the point that the particular Jewish professor has brought grievance proceedings against Karam.
- The above discriminatory and retaliatory pattern and practice by defendant, its agents and employees, violate the Fourteenth Amendment to the Constitution as protected by 42 U.S.C. Section 1981.
- About the time Karam became Department Chairman, a flooding incident occurred at the Medical School where wastes seeped from the laboratory above plaintiff's and caused damage to some of his equipment, which has hampered his research efforts. Despite complaints to the University, including the Dean, no action has been taken. On January 24, 1995, plaintiff took a grievance concerning the matter to a hearing at the University. On January 31, 1995, plaintiff received notice from Karam to turn in his identification card and keys and prepare to remove his personal equipment from the laboratories assigned to him at Tulane.
- Defendant's actions are in violation of La. Civil Code Arts. 1967, 2315, 2315.3, Louisiana Revised Statute 30:2027 B(1), are in breach of the employment agreement in force between the parties for the appointment through July, 1995, constitute interference with professional relationships, damaged plaintiff's research program, professional reputation, and invaded his right to privacy.
- Additionally, defendant's actions in interfering with plaintiff's academic freedom are in violation of plaintiff's United States 1st Amendment Rights and violative of the Louisiana Constitution.
- Plaintiff is suffering continuing and immediate irreparable injury, for which there is no adequate remedy at law, by being deprived of his position of employment with defendant, loss of his $250,000.00 research grant, his equipment secured over the years with grant funding, the use of his laboratories for continuation of his ongoing research projects, and preservation of his valuable tissue samples which he has safeguarded for study for over twenty years, so that he is entitled to an injunctive order of reinstatement.
- Dr. Bernofsky's birthdate is November 22, 1933. He is sixty-one years of age.
- At all relevant times, he was and continues to be qualified for the position of Research Professor in the Department of Biochemistry.
- He has successfully performed the duties of a Research Professor at Tulane since 1975.
- The three most recent hires in the Biochemistry Department at Tulane are all under forty.
- Dr. Bernofsky is more qualified than any of these three younger professors. He has more publications to his credit, and has a long track record of generating grant funding as a principal investigator and bringing research projects to successful fruition.
- Dr. Sam Landry has a background in Nuclear Magnetic Resonance Spectroscopy ("NMR"). Dr. Landry's work is more closely related to Dr. Bernofsky's work than that of anyone else in the Biochemistry Department.
- Although the primary focus of Dr. Bernofsky's research involves free radicals, he also conducts research on enzymes and proteins. The primary emphasis of Dr. Landry's research is the structure and function of proteins.
- Tulane will retain Dr. Hyman and Dr. Landry, the recent hires, in the Biochemistry Department following Dr. Bernofsky's termination.
- Despite Dr. Bernofsky's qualifications, Tulane refuses to continue Dr. Bernofsky in his position. Positions continue to remain open in the Biochemistry Department; in fact applicants are interviewed on approximately a bi-weekly basis. Upon information and belief, Dr. Bernofsky has been replaced by Dr. Jim Nolan who is under forty years of age and outside the protected class.
- Tulane crafted and implemented a plan to terminate Dr. Bernofsky based upon his age. Defendants also confected a subterfuge in an attempt to hide their blatant and unlawful discriminatory motivation.
- Dr. Bernofsky has been singled out for termination in a discriminatory manner by Tulane because of his age and his race. Tulane is motivated by an intent to discriminate against Dr. Bernofsky on the basis of his age and race.
- Dr. Bernofsky's termination violates the provisions of Louisiana R.S. 23:972-975, which make it unlawful for an employer "to discharge any individual or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age."
- This suit is also authorized and instituted pursuant to: 29 U.S.C. Section 623(a)(1) which prohibits an employer from discriminating against an employee on the basis of age.
- At all times relevant, defendant was an "employer" as defined by 29 USC Section 630(b) and is thus covered by and subject to the Age Discrimination in Employment Act of 1967 ("ADEA") (29 U.S.C. Section 621 et seq.) and affected commerce within the meaning of 29 U.S.C. Section 152.
- At all times material hereto, defendant was engaged in an industry affecting commerce and had 20 or more employees for each working day in each of 20 or more calendar weeks in the then current or proceeding calendar year.
- Defendant's conduct complained of herein was willful and in disregard of Plaintiff's rights. Defendant, and its supervisory personnel were aware that discrimination against plaintiff on the basis of age was unlawful but acted in reckless disregard of the law.
- On or about February 10, 1995, plaintiff filed a charge alleging unlawful discrimination on the basis of age, 61, and religion, Jewish, with the Equal Employment Opportunity Commission as required by law. Plaintiff has satisfied the Act's procedural requirements, i.e., the filing of a timely charge with the Equal Employment Opportunity Commission. The last unlawful act of defendant occurred within 180 days of the filing of the Equal Employment Opportunity Commission charge.
- The Equal Employment Opportunity Commission issued plaintiff a "right to sue" notice August 22, 1995. This action has been filed within 90 days after receipt of the Equal Employment Opportunity Commission notice.
- Additionally, on May 3, 1995 without notice, defendant locked plaintiff out of the laboratories assigned to him and converted all of his laboratory equipment and supplies to defendant's own use despite plaintiff's compliance with defendant's demands that he submit a detailed listing of the items in the laboratories he intended to remove. This equipment was purchased with personal funds, grant funds, or brought to Tulane from plaintiff's previous employer.
WHEREFORE, Plaintiff respectfully prays that this Court award judgment in favor of plaintiff for violation of plaintiff's rights under 42 U.S.C. Section 1981 and 29 U.S.C. Section 623(a) and under state law and award plaintiff the following:
- Actual and consequential damages as may be proven, plus interest;
- Compensatory damages to compensate for the pain, suffering, humiliation, and harm to professional reputation plaintiff has suffered as a result of defendant's illegal action;
- Punitive damages payable to plaintiff in an amount to properly penalize defendant for its misconduct and to deter such wrongdoing in the future;
- Attorneys' fees and the costs of this action including costs of preparing, filing, prosecuting, or otherwise conducting a law suit to be taxed against defendant;
- Exemplary damages pursuant to La. Civil Code Art. 2315.3;
- Enter an injunction against defendant ordering defendant to reinstate Dr. Carl Bernofsky as an employee, and thereafter not discriminate against him on the basis of race and/or age; and to refrain from retaliating against him if he reports environmental violations in good faith to his superiors, or alternatively, that plaintiff be awarded triple front pay pursuant to Louisiana Revised Statute 30:2027 B(1);
- Try all issues of fact by a jury; and
- Grant plaintiff such other and further relief as justice may require.
s/ Roger Phipps
Roger D. Phipps
PHIPPS & PHIPPS
210 Baronne Street, Suite 1410
New Orleans, Louisiana 70112
CERTIFICATE I certify that a copy of the above and forgoing has this day, November 20, 1995 been forwarded to all known counsel of record by depositing a copy of same in the United States mail, postage prepaid, 1st class mail, and properly addressed, and/or by hand delivery.
s/ Roger Phipps
Roger D. Phipps
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