Lawsuit Against Tulane University for Discriminatory Discharge
Pre-Trial Order
(Case No. 95-0358, Docket No. 114, August 30, 1996)
UNITED STATES DISTRICT COURT FOR
THE EASTERN DISTRICT OF LOUISIANA
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| DR. CARL BERNOFSKY |
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CIVIL ACTION |
| Plaintiff |
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No. 95:0358 |
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| VERSUS |
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SECTION "C" (2) |
| TULANE UNIVERSITY MEDICAL SCHOOL |
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| Defendant |
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JUDGE BERRIGAN |
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PRE-TRIAL ORDER
1. Pre-Trial Conference
A pre-trial conference was held before United States
District Court Judge, Honorable Ginger Berrigan, Section "C" on June 26,
1996, Eastern District of Louisiana at 11:00 a.m.
2. Appearance of Counsel
(a) Appearing on behalf of plaintiff Dr. Carl Bernofsky:
Roger D. Phipps
Evanthea P. Phipps
PHIPPS & PHIPPS
210 Baronne Street, Suite 1410
New Orleans, Louisiana 70112
(504) 524-2298
(b) Appearing on behalf of defendant The Administrators
of the Tulane Educational Fund:
G. Phillip Shuler, III, T.A. (12047)
Julie D. Livaudais (1183)
Desha D. Dardenne (23019)
CHAFFE, McCALL, PHILLIPS, TOLER & SARPY, L.L.P.
2300 Energy Centre, 1100 Poydras Street
New Orleans, Louisiana 70163-2300
Telephone: (504) 585-7000
3. Description of Parties
Plaintiff, Dr. Carl Bernofsky, a 62-year-old Jewish
male who was employed by defendant, Tulane University Medical School, in
the capacity of Research Professor. Dr. Bernofsky is a citizen of the United
States and domiciled in New Orleans.
Defendant, Tulane University Medical School, is a
non-profit organization dedicated to medical research and education. The
proper legal entity is the Administrators of the Tulane Educational Fund.
All necessary parties are joined.
4. Jurisdiction
This court has jurisdiction of this proceeding pursuant
to 28 U.S.C. §1331, §1343, and 28 U.S.C. §1367. This suit
is authorized and instituted pursuant to: 1) 42 U.S.C. §1981, which
provides relief from violation of plaintiff's right to be free of unlawful
discrimination in the making, performance, modification, and termination
of contracts, on the basis of race and ethnicity; and 2) 29 U.S.C. §623(a)(1)
which prohibits an employer from discriminating against an employee on
the basis of age.
Additionally, the Court's supplemental jurisdiction
is invoked for claims arising under Louisiana law.
Jurisdiction is not contested.
5. Pending or Contemplated Motions
Defendant's Motion For Summary Judgment is pending.
Plaintiff may file Motions in Limine and a Motion
To Strike Testimony that goes beyond fact testimony prior to trial.
Defendant may file Motions in Limine and a Motion
To Strike Expert Testimony prior to trial.
6. Brief Summary of Material Facts Claimed
(a) Plaintiff's claims:
Dr. Bernofsky asserts the following racial claims
of discrimination: #1) failure to promote/denial of tenure, #2) retaliation,
harassment, and interference during employment, and #3) discharge. 42 U.S.C.
§1981.
Dr. Bernofsky asserts the following age claims: #4)
retaliatory discharge, and #5) discriminatory discharge. 29 U.S.C. §623.
Dr. Bernofsky's asserts the following state law claims:
#6) breach of contract, #7) detrimental reliance under La. Civil Code Article
1967, #8) conversion La. Civil Code Article 2315, #9) environmental retaliation
La. R.S. 30:2027 B, and #10) wanton and/or reckless disregard in the storage
and/or handling of blood-borne pathogens and hazardous or toxic substances,
i.e. chemicals under La. Civil Code Article 2315.3.(1)
Footnote
1. Dr. Bernofsky's claims are based on the facts
as previously set forth in his memoranda, affidavits, and all deposition
testimony and exhibits accompanying previous memoranda.
Per the Court's instruction, an attempt has been
made in this Pretrial Order to segregate the facts upon which Dr. Bernofsky
relies, identifying facts that support each individual claim. However,
many of the facts are relevant to and support more than one of Dr. Bernofsky's
claims. In an effort to not repeat the individual facts, each fact has
been generally segregated under one claim. However, since certain facts
are applicable to more than one claim, additional facts other than those
specifically segregated under an individual claim may apply to more than
one claim.
(b) Plaintiff's material facts claimed are as follows:
Dr. Bernofsky is a respected research biochemist
who remained at Tulane for nearly 20 years, painstakingly building a research
program. In 1977, Dr. Bernofsky was promised that he would become tenured.
This promise or representation was made by his Department Chairman, Dr.
Rune Stjernholm. Until he was replaced by the new Chairman, Dr. Stjernholm
continued to promise Dr. Bernofsky that he would become tenured. The 1976
Faculty Handbook provided to Dr. Bernofsky when he first arrived at Tulane
provided that conversions to regular appointments could occur at any time.
In 1991, the Chairmanship of his department changed.
Dr. Karam became the new Chairman. After Dr. Bernofsky requested the promised
tenure from his new department chairman, he began to be harassed. Dr. Bernofsky's
research efforts were hampered until he lost funding. Dr. Bernofsky was
evaluated by a method that did not comply with the requirements set out
by the Dean. In fact, the reviewers did not conduct an adequate or thorough
review. Discrimination infected the review process. Based upon the poor
review, Dr. Bernofsky was given certain conditions to meet. Among the most
important condition was that he secure new grant funding. Dr. Bernofsky
was terminated despite the fact that he secured a $250,000 grant from the
Air Force to support his research program before the deadline established
by Tulane for obtaining new grant funds passed.
In 1992, Dr. Bernofsky was awarded grant funds of
$250,000 to purchase a sophisticated scientific instrument, an EPR, needed
in his research. Dr. Bernofsky voluntarily taught an advanced course for
16 years. Throughout his career, Dr. Bernofsky published in respected scholarly
journals and continued publishing following his termination by Tulane.
Dr. Bernofsky is Jewish. At the time of his termination, he was 61 years
old.
Dr. Bernofsky has alleged several claims: 1) That
he was denied tenure because of his race; 2) That he was harassed, his
research program interfered with, and retaliated against because of his
race; and 3) That he was discharged because of his race.
Dr. Bernofsky has claimed that Tulane's decisions
are also based on his age. After he asked Dr. Karam to recommend his name
for official tenure, long promised to him, he began to experience harassment
and interference with his research program. Dr. Bernofsky claims that Dr.
Karam retaliated against him because of his request for tenure. Alleged
problems with Dr. Bernofsky's performance began after he asked Dr. Karam
about tenure.
Indisputably, only other Jewish professors have been
ousted from the Biochemistry Department following Dr. Jim D. Karam's appointment
as Chairman. This pattern, which Tulane hopes to dismiss as mere coincidence,
supports Dr. Bernofsky's claim that Tulane's actions against him were based
impermissibly on race and age.
Eminent scholars in his field have attested to Dr.
Bernofsky's qualifications as a scientist, and as to the outstanding quality
of his work evidenced in his funding record and publications. According
to Professor Dr. Willem Koppenol, Chairman, Institute of Inorganic Chemistry,
Swiss Federal Institute of Technology Zurich, Dr. Bernofsky's work is respected
by other leaders in the free radical field. Similarly, a leading American
free-radical scientist, Dr. Garry R. Buettner, attests to the quality of
Dr. Bernofsky's work as evident in his funding record and successful effort
in bringing a $250,000 EPR instrument to Tulane.
A similarly-situated research professor, Dr. Su-Chen
Li, has been retained. She has no grant funding in her own right. She has
never generated a grant award on the strength of her own credentials. She
occasionally teaches her husband's courses when he is unavailable and has
no teaching responsibilities of her own. Another research professor, Dr.
Jen-sie Tou, was converted in 1989 with an immediate grant of tenure despite
being on a tenure track from 1972 to 1980 and on research status for another
nine years. Despite their similar positions, Dr. Bernofsky was treated
much less favorably. Tulane applied a different standard in its tenure
decision to Dr. Bernofsky, a senior Jewish faculty member, than to Dr.
Tou who lacked grant support and had fewer publications.
Dr. Bernofsky and Dr. Tou were both recommended for
tenure at about the same time. Dr. Bernofsky brought over $600,000 to Tulane
from 1980-1988. In comparison, Dr. Tou had brought about in about $65,000.
By that time, Dr. Bernofsky had brought over $175,000 to Tulane for covering
Tulane's overhead expenses. Additionally, Dr. Bernofsky had many more publications
than did Dr. Tou. However, unlike Dr. Tou, Dr. Bernofsky's name was not
forwarded for consideration to the appropriate committee when his name
was recommended for tenure by Dr. Stjernholm. In fact, the entire process
was kept secret from him.
Because of the fact that Dr. Bernofsky was discriminatorily
denied tenure, he was treated differently than other professors, who received
support in the form of stipends to pay graduate students working in their
laboratories and funds to cover the salaries paid to their technical and
postdoctoral assistants. Had the grant money Dr. Bernofsky paid to cover
his own staff been available for support of his own salary, Tulane would
not be able to assert that he cost the Department money or was not an asset
in a business sense.
Harassment and interference were also directed against
two other senior Jewish faculty members. One accepted early retirement
and the other has had her laboratories reassigned out of the Biochemistry
Department. At her deposition, one of these professors, Dr. Melanie Ehrlich,
testified that she believed Dr. Karam's discrimination against her "may
well [have] a Jewish component."
Despite his qualifications as Research Professor,
Tulane terminated Dr. Bernofsky and retained and hired less-qualified faculty
in the Biochemistry Department. Following his termination, Dr. Bernofsky
immediately set out to transfer his Air Force grant to another institution
and to seek a comparable position elsewhere. However, the onset of cancer
has affected his ability to accomplish this goal.
Additionally, Dr. Bernofsky has alleged detrimental
reliance under Louisiana law. His former Chairman made representations
to him that he would become tenured. Relying on these representations,
Dr. Bernofsky focused his efforts on building his program at Tulane; he
brought a $250,000 EPR instrument to the Medical School and endeavored
to nurture the development of a free radical research program. Dr. Bernofsky
did not undertake a major effort to move his program elsewhere. Subsequently,
when he was thrown out at 61 years of age based on a review that failed
to follow University guidelines, he suffered damage. Detrimental reliance
occurs where a promise or representation is made. A person relies on that
promise and is later harmed by having done so.
In addition to representations by Dean Hamlin and
Dr. Stjernholm, Dr. Karam informed Dr. Bernofsky that he had de facto tenure
because he had been at Tulane for so long. This explanation in response
to Dr. Bernofsky's request that Dr. Karam recommend his name for official
tenure parallelled the 1976 Faculty Handbook provisions on tenure. Subsequent
to these conversations with Dr. Karam, Dr. Bernofsky secured additional
grant funds in the amount of $250,000.
Dr. Bernofsky alleges that under the terms of the
contract governing his relationship with Tulane, he is tenured. The Dean
and his former Department Chairman confirmed in writing that he would become
the next tenured faculty member in the Department. At the time of Dr. Tou's
conversion, the Dean, the Chancellor, and others on the Personnel &
Honors Committee stated that an appointment in excess of seven years automatically
carries tenure. This was a major factor leading to Dr. Tou's grant of tenure.
Subsequent to the representations that Dr. Bernofsky would become tenured,
his appointment carried the prospect of tenure. Under the contract, such
an appointment in excess of seven years automatically carries tenure. After
seven years, Dr. Bernofsky could be dismissed only by following the dismissal
procedures set forth in the contract applicable to tenured professors.
Also, under Louisiana law, oral promises are enforceable in circumstances
where the employee provides extra benefits to the employer beyond the performance
of his duties. Dr. Bernofsky brought a $250,000 EPR to the School and generated
over $2 million in grant funds with $600,000 going to cover overhead costs
which make research space available.
Dr. Bernofsky complained about a serious environmental
hazard: wastes consisting of animal hair, blood, and chemicals raining
down from the laboratories above. His concerns were ignored. Shortly thereafter,
he was terminated. The hazardous and/or toxic substances (including blood-borne
pathogens) were improperly handled or stored by Tulane in a reckless manner
without concern for the safety of the public, which included Dr. Bernofsky
and his staff.
Finally, all of the equipment and supplies Dr. Bernofsky
brought with him to Tulane or purchased with grant or personal funds was
seized by Tulane when he was locked out of the laboratories previously
assigned to him. This exercise of control over Dr. Bernofsky's equipment
and supplies greatly affects his ability to conduct research or be a viable
candidate for relocating his research program and has added to his injury.
(c) Defendant's material facts claimed are as follows:
Defendants assert the following affirmative defenses:
(1) A portion of plaintiff's claims under Section
1981 and the ADEA have prescribed;
(2) Plaintiff's claim of damages under
Louisiana Civil Code Articles 2315 and 2315.3 have prescribed;
(3) Plaintiff's claims of damages under La. R.S.
30:2027 have prescribed; and
(4) Plaintiff has failed to mitigate his damages,
if any.
Dr. Carl Bernofsky ("Dr. Bernofsky" or "plaintiff")
began his employment with Tulane University School of Medicine ("Tulane"
or "defendant") in 1975 as a Visiting Associate Professor. According to
the Tulane Faculty Handbook ("the handbook"), "an appointment of a visiting
professor" constitutes a "special" appointment. The handbook further provides,
"A Special appointment neither gives tenure nor is to be regarded as a
probationary appointment that may lead to tenure."
In 1981, Dr. Bernofsky was appointed to Research
Associate Professor and in 1983 he was appointed to Research Professor.
According to the handbook, "The conditions of each appointment, including
salary, rank, term of appointment and tenure, shall be stated and confirmed
to the faculty member in writing by the dean of the school or college."
Further, "[a]ny subsequent extensions or modifications of an appointment
and any special understandings, shall be stated and confirmed in writing
by the dean of the school or college." The conditions of Dr. Bernofsky's
appointment, clearly stated to him in writing year after year, were that
his status was a research professor, he was on a non-tenure track, and
his appointments were for a one-year term each. The research professor
classification at Tulane is used only in the School of Medicine and the
School of Public Health. This exception is stated in the handbook: "In
view of practices prevailing at many medical centers, the School of Medicine
and the School of Public Health and Tropical Medicine may continue to use
academic ranks in the titles designated for faculty members primarily engaged
in research, e.g., Research Associate Professor. Service in such positions
cannot lead to tenure. However, conversion from such a position
to a regular full-time faculty appointment or vice-versa, may be made,
but only once and only within the first seven years of full-time faculty
service...".
As an Associate Research Professor and then a Research
Professor at Tulane Medical School, Dr. Bernofsky had clearly been in non-tenure
track positions since the commencement of his employment with Tulane. Although
he could have been converted to the tenure track, such conversion must
have occurred within the first seven years of full time employment. It
did not. Dr. Bernofsky continued to accept his annual non-tenure track
appointments. He claims that on an informal, probably once a year basis,
he would ask his department chairman, "How about tenure, Rune?" But he
never formally requested to be considered for tenure, which would have
involved submitting a dossier to the Promotions and Tenure Committee. Tenure
decisions are made on a School of Medicine-wide basis.
As a Research Professor, Dr. Bernofsky was responsible
for obtaining research grants to support his salary. In return, he was
provided laboratory space, use of equipment owned by Tulane and support
services. Dr. Bernofsky was aware of this responsibility, however he ignored
it and the Department of Biochemistry was forced to pay a large majority,
and many times all, of Dr. Bernofsky's salary. In fact, the Biochemistry
Department of Tulane University School of Medicine paid 100% of Dr. Bernofsky's
salary from academic year 1993-1994 through his termination and approximately
70% of Dr. Bernofsky's salary for the academic years beginning in 1990
and ending in 1992-1993, as he had no salary support form grant funding.
Between 1986 and 1990, the Department of Biochemistry paid approximately
80% of Dr. Bernofsky's salary per academic year. The other Research Professor,
Dr. Su-Chen Li collaborates with her husband, Dr. Yu-Teh Li, Professor
of Biochemistry, in order to obtain grant funding and produce quality research.
Dr. Su-Chen Li's salary was paid 100% through extramural grant funding
for the period 1988-91, and from 1991 through the present, only 25% of
Dr. Su-Chen Li's salary has been paid by funds from the Department of Biochemistry.
Further, Dr. Su-Chen Li has taught courses and participated in committee
activities within the Biochemistry Department in order to support the portion
of her salary that is not paid by grant funds.
Dr. Bernofsky was also expected to produce quality
research results, participate in activities of the Biochemistry Department,
including teaching and committee activities, and assist in maintaining
a collegial atmosphere in the Biochemistry Department. However, his teaching
load and committee assignments were far less than those of tenured professors,
in keeping with his research status. For some time, Dr. Bernofsky was unable
to procure research grants sufficient to support his salary, and Tulane
supplemented his funds in order to pay his full salary. Nearly all of the
grants that Dr. Bernofsky applied for prior to his termination were rejected.
Dr. Bernofsky's last research grant expired in 1993 and when the decision
to terminate him was made, he had been unable to obtain a research grant
to replace it. Dr. Bernofsky's production and publication of quality research
results have severely diminished in recent years. While he tried to get
funding for his research, he was consistently turned down. Dr. Bernofsky
stopped teaching at the Tulane Medical School as he refused an offer in
1994, by Dr. James Karam, Chairman of the Biochemistry Department, to give
ten (10) lectures in order to help justify the Biochemistry Department's
payment of his full salary. In short, Dr. Bernofsky was willing to accept
departmental funds as salary but unwilling to provide service to the department.
In fact, the last time Dr. Bernofsky taught a course in the Biochemistry
Department was in 1992. He refused to teach until he became tenured.
Dr. Bernofsky has not portrayed a collegial spirit
during the course of his employment at Tulane. In the past, Dr. Bernofsky
made an unsubstantiated allegation against one of his colleagues that the
colleague had stolen from him. In addition, he stated publicly and without
justification that Dr. Karam was using racist methods in faculty recruiting.
This was based on the fact that he invited one of Dr. Bernofsky's assistants
(instead of Dr. Bernofsky) to dinner with a faculty candidate who happened
to be of the same ethnic minority as the assistant.
In May, 1994 a Biochemistry Faculty Review Committee,
composed of Drs. Li, Steele and Stjernholm reviewed Dr. Bernofsky's performance
and published its findings in a May 16, 1994 letter to Dr. Karam. The peer
review committee concluded that Dr. Bernofsky had been extremely unsuccessful
in obtaining research grants, that he had been receiving substantial amounts
of salary support, and that his research results and publications were
sparse and not of the quality expected of a Research Professor. The committee
also concluded that he had taught no classes since 1992, was reclusive
and did not participate in department affairs.
As a result of the poor performance of Dr. Bernofsky
cited in the peer review, Dr. Karam recommended to Dr. James Corrigan,
the Dean of the Medical School, that Dr. Bernofsky's appointment for academic
year 1994-95 be renewed, but with stipulations. These stipulations, focusing
on the requirements of the acquisition of research grant funding, activity
within the Biochemistry Department and maintenance of a collegial attitude,
were outlined in a May 24, 1994 letter from Dr. Karam to Dr. Bernofsky.
These stipulations were also set forth in a document entitled "Recommendation
For Faculty Personnel Action" which granted Dr. Bernofsky's conditional
1994-95 appointment. Dr. Bernofsky, in the following months, complied with
none of these stipulations.
On August 9, 1994, Dr. Bernofsky was informed that
his employment would be terminated December 31, 1994 if he was unable to
obtain research grant funding to support his salary. On August 16, 1994,
the date of termination was extended to February 28, 1995, by a letter
from Dr. Karam to Dr. Bernofsky, signed and approved by Dr. Corrigan. The
termination date, with a six (6) month termination notice effective September
1, 1994, was extended in an effort to accommodate Dr. Bernofsky's concerns
that he was not being afforded due process according to University rules.
The February 28, 1995 date of termination was confirmed in a letter to
Dr. Bernofsky from Dr. Karam dated December 20, 1994. The February 28,
1995 termination date was again confirmed in a letter to Dr. Bernofsky
from Dr. Karam dated January 31, 1995. Dr. Bernofsky had failed to meet
the conditions of his 1994-95 appointment and was given six months notice
of his termination, as required by Tulane School of Medicine policy.
(d) Defendant's Defenses To Plaintiff's Claims:
1. Defendant asserts that plaintiff was never put
up for tenure before the Promotions and Tenure Department of Tulane because
he was not employed on a tenure-track. The fact that plaintiff is Jewish
had absolutely nothing to do with this fact.
2. Defendant asserts that plaintiff never made a
claim of any kind of discrimination prior to his discharge. Therefore,
it is impossible that it retaliated against plaintiff based upon such complaints.
Further, Tulane took no actions whatsoever against plaintiff based upon
his being Jewish.
Defendant asserts that all decisions made in regard
to plaintiff were made without regard to the fact that he is Jewish or
his age. Tulane's policies and procedures are applied evenly to all professors
regardless of their race, age, sex, national origin, religion or disability.
3. Defendant asserts that the fact that plaintiff
is Jewish, was not in any way a factor in its decision to terminate his
employment. Plaintiff was discharged because he was not satisfactorily
performing in the position of Research Professor at Tulane Medical School.
The decision to terminate plaintiff's employment was based upon legitimate,
non-discriminatory reasons.
4. Defendant asserts that plaintiff made no claim
of age discrimination until well after his termination. Therefore, it is
impossible that it retaliated against plaintiff based upon such complaints.
Further, Tulane took no action against plaintiff based upon his age.
5. Defendant asserts that plaintiff's age was not
considered in its decision to terminate his employment; plaintiff was discharged
because he was not satisfactorily performing in the position of Research
Professor at Tulane Medical School. The decision to terminate plaintiff's
employment was based upon legitimate non-discriminatory reasons.
6. Defendant asserts that plaintiff did not have
a contract of tenure with Tulane; he was employed in a non-tenure track
position and received annual letters of re-appointment each year setting
forth the fact that he was in a non-tenured position.
7. Defendant asserts that plaintiff was not promised
that he would receive tenure and that a "promise" of tenure would be meaningless
given the well-established internal university procedures for evaluation
by committees and approval by the Chancellor and President prior to tenure
being awarded.
Further, Defendant asserts that plaintiff was not
promised that he would receive tenure; further, he could not have justifiably
relied on such promises as he continually received annual reappointment
letters clearly evidencing his employment in a non-tenured position, and
because the procedures for receiving tenure, clearly set forth in the Faculty
Handbook, do not allow for any one person to promise or award tenure.
Additionally, Defendant asserts that "de facto tenure"
does not exist at Tulane Medical School; plaintiff was told that he would
remain employed in the position of Research Professor in the Biochemistry
Department as long as he satisfactorily performed the duties of the position.
Finally, Defendant asserts that it did not breach the terms of plaintiff's
conditional 1994-95 annual appointment. Plaintiff was fully informed in
May, 1994 as to what was expected of him to be considered qualified for
the position of Research Professor; he ignored his responsibility and was
terminated after a six month notice period.
8. Defendant asserts that it did not convert any
of plaintiff's property to its own. Dr. Bernofsky was given the opportunity
to remove his personal property from the Medical School following his termination;
the remaining equipment and supplies housed in the laboratory formerly
assigned to Dr. Bernofsky are the property of Tulane as they were purchased
with funds provided by Tulane University or extramural grant funds awarded
to Tulane University.
9. Defendant asserts that plaintiff never made a
complaint of any possible environmental violations. Plaintiff did make
complaints pertaining to a flooding incident in the Medical School; however,
the focus of plaintiff's complaint was not possible environmental violations,
rather alleged damage to equipment necessary to his research.
10. Defendant asserts that it was not involved in
the storage and/or handling of hazardous or toxic substances and further
its handling of all materials within the Medical School is done with extreme
caution and in compliance with all applicable regulations and laws. Further,
plaintiff never reported to Tulane that he sustained any damage or injury
from any hazardous or toxic substance, and in fact did not sustain any
such damage or injury.
Aditionally, Defendant asserts that no actions taken
against plaintiff were malicious, reckless or willful; all actions taken
in regard to plaintiff's employment were in accordance with Tulane's non-discriminatory
policies and procedures, made after giving plaintiff every opportunity
to perform his job in a satisfactory manner.
Finally, plaintiff's claims are barred by applicable prescriptive periods.
(e) No Other Parties Are Part Of The Lawsuit
7. Single Listing of All Uncontested Material Facts
1) Plaintiff, Dr. Carl Bernofsky, is a Jewish 62-year-old
male who is a citizen of the State of Louisiana and domiciled in Orleans
Parish, Louisiana. Dr. Bernofsky's birthdate is November 22, 1933.
2) 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.
3) Plaintiff has a B.S. in Biology from Brooklyn
College and a Ph.D. in Biochemistry from the University of Kansas.
4) Plaintiff was a Postdoctoral Research Fellow at
Case-Western Reserve University.
5) Prior to joining the faculty at Tulane University
School of Medicine, Dr. Bernofsky was a Consultant at the Mayo Clinic,
an Assistant Professor at the Mayo Foundation, and later, Associate Professor
of Biochemistry at the Mayo Medical School, Rochester, Minn.
6) Plaintiff was hired by defendant in 1975 as a
Visiting Associate Professor. In 1981, he was appointed to Research Associate
Professor. Subsequently in 1983, defendant promoted plaintiff to the rank
of Research Professor.
7) Dr. Bernofsky was over the age of forty when he
was hired by Tulane as a Visiting Professor in 1975.
8) In November 1991, Dr. Jim D. Karam, a native of Lebanon,
was named Biochemistry Department Chairman.
9) At all times relevant, defendant was an "employer"
as defined by 29 U.S.C. 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.
10) The most recent faculty hires in the Biochemistry
Department at Tulane are: Dr. Linda Hyman, Dr. Samuel Landry, Dr. James
Nolan, and Dr. Arthur Lustig.
11) For the last ten years, plaintiff's research
focused on the investigation of free radicals, mechanisms of inflammatory
tissue damage, human cell models for early detection of toxic substances,
tumor-specific endonucleases, and studies of environmental carcinogens.
12) Although the primary focus of Dr. Bernofsky's
research involves free radicals, he also conducts research on enzymes and
proteins.
13) Dr. Bernofsky's last Faculty Personnel Action
Form provides that his appointment runs from July 1, 1994 through June
30, 1995, and contains the remarks that the continuation of this special
appointment beyond the period specified is based upon institutional and
program needs and/or renewal of grant support and satisfactory performance.
14) Dr. Karam's May 24, 1994 letter regarding Dr.
Bernofsky's 1994 - 1995 reappointment provides at page 7: "Your record
will be reviewed again in April 1995, after which I will make an appropriate
recommendation to the Dean regarding your reappointment for the 1995 -
1996 academic year."
15) Dr. Bernofsky was sixty-one (61) years of age
at the time he was terminated.
16) Dr. Su-Chen Li is a Research Professor in the
Biochemistry Department. She was the only other Research Professor in the
Department of Biochemistry at the time of Dr. Bernofsky's termination.
17) Dr. Bernofsky's annual salary was approximately
$65,000 at the time of his termination.
18) On August 9, 1994, Dr. Bernofsky was informed
that his employment would be terminated effective December 31, 1994 if
he was unable to obtain research grant funding to support his salary.
19) On August 16, 1994, the date of termination was
extended to February 28, 1995, by a letter from Dr. Karam to Dr. Bernofsky,
signed and approved by Dean Corrigan. The termination date, with a six
(6) month termination notice effective September 1, 1994, was extended
in response to Dr. Bernofsky's concerns that he was not being afforded
due process according to University rules.
20) Dr. Samuel Landry was hired as an Assistant Professor
of Biochemistry on January 4, 1993.
21) Dr. Linda Hyman, a Jewish woman, was hired as
an Assistant Professor of Biochemistry on August 6, 1993.
22) Dr. James Nolan was hired August 1, 1995 as an
Assistant Professor of Biochemistry.
23) Dr. Arthur Lustig, a Jewish male, will join the
Biochemistry Department as an Associate Professor of Biochemistry in August,
1996.
24) Dr. Bernofsky's grievance pertaining to the flooding
incident was related only to the alleged damage to his equipment.
25) Dr. Karam has never represented to anyone that
Dr. Bernofsky would be recommended for tenure or that he would receive
the next available regular appointment.
26) Dr. Karam is married to a Jewish woman.
27) Dr. Karam is 58 years old.
28) On February 3, 1995, plaintiff received notice
that a two-year $250,000 grant award would be funded by the United States
Air Force, Department of Defense.
29) On or about February 10, 1995, plaintiff filed
a charge alleging unlawful discrimation on the basis of age, 61, and religion,
Jewish, with the Equal Employment Opportunity Commission as required by
Title VII, and the ADEA. Plaintiff has satisfied the procedural requirements,
i.e., the filing of a timely charge with the Equal Employment Opportunity
Commission, which was a prerequisite of filing suit under those statutes.
30) The Equal Employment Opportunity Commission issued
plaintiff a "right to sue" notice August 22, 1995. This present action
was amended within 90 days after receipt of the Equal Employment Opportunity
Commission notice.
8. Single Listing of Contested Issues of Fact
1) Tulane made representations to Dr. Bernofsky that
he would become a tenured member of the Biochemistry Department and was
de facto tenured. Dr. Bernofsky reasonably relied on these representations.
As a result, he suffered damage.
2) Under the contract governing Dr. Bernofsky's relationship
with Tulane, conversion to a tenured faculty position can occur at any
time. Dr. Bernofsky was qualified for a tenured position. An identically-situated
non-Jewish faculty member was converted with a grant of immediate tenure
and remains on the faculty. Dr. Bernofsky was never informed that he was
recommended for tenure at the same time as the non-Jewish faculty member
who was awarded tenure. Failure to inform Dr. Bernofsky of the tenure denial
was contravened by Tulane's Constitution, the University By-Laws, and the
contract governing Dr. Bernofsky's relationship with Tulane.
3) Dr. Bernofsky is qualified for the position of Research
Professor at Tulane. He successfully performed as a Research Professor
for more than 19 years. He secured grant funding, published in scholarly
journals, voluntarily lectured, participated in committees, and was collegial.
After he requested to be recommended for official tenure, he was harrassed,
his research efforts were hampered until he lost funding, and he was evaluated
by a method the did not comply with the requirements set forth by the Dean.
A similarly-situtated non-Jewish Research Professor was treated more favorably
and remains on the faculty. Despite securing additional grant funding,
Dr. Bernofsky was locked out of the laboratories assigned to him at Tulane.
Tulane refused to promote him to a tenured position, and he was terminated.
4) Under the restructuring of the Biochemistry Department,
there are no plans to continue the Research Professor position; however,
a younger professor was hired to replace Dr. Bernofsky's expertise. This
younger professor conducts similar scientific investigations. Recent hires
in the Biochemistry Department at Tulane are under forty years of age.
Dr. Bernofsky has more publications to his credit, has a long track record
of generating grant funding as a principal investigator with national granting
agencies, and has brought more research projects to successful fruition
than any of the three younger professors.
5) Alleged problems with Dr. Bernofsky's performance,
and claims of noncollegiality were not cited as problematic until after
Dr. Bernofsky complained to Dr. Karam about not being converted to a tenured
position.
6) Dr. Bernofsky has made reasonable attempts to mitigate
his damages.
7) Flooding incidents involving blood, animal hair,
and chemicals occurred into Dr. Bernofsky's laboratory. Despite Dr. Bernofsky's
repeated complaints to the University, Tulane took no meaningful action
to correct the environmental and health hazards associated with the flooding.
8) While Dr. Bernofsky was employed by Tulane as a Research
Professor, he reported an environmental violation to Tulane. He reported
the violation to responsible parties in good faith. Tulane then took adverse
employment action against him.
9) Dr. Bernofsky secured almost every item in the laboratories
where he worked at Tulane either through personal funds or grant funds.
Dr. Bernofsky owns the equipment he paid for personally.
10) As to the remainder, he has a greater possessory
right than does Tulane. Tulane locked plaintiff out of the laboratories
assigned to him and converted all his laboratory equipment and supplies
to defendant's own use. Additionally, Tulane took possession and control
of Dr. Bernofsky's last paycheck.
11) Special Damages: Plaintiff is entitled to special
damages for loss of his research equipment and supplies pursuant to his
cause of action for environmental retaliation; triple damages should be
awarded ($300,000 x 3).
(See Appendix for specificity on contested material
facts 1 - 11 above.)
BREACH OF CONTRACT WITH PARTICULARITY AND SPECIFICITY
12) Portions of grant applications provided to Dr. Bernofsky
by his former Chairman, Dr. Stjernholm, provide confirmation in writing
by the Dean of the Medical School of Dr. Stjernholm's oral promise concerning
Dr. Bernofsky's appointment at Tulane. These documents satisfy the contractual
provision at Article II, Section 1, page 26 which requires that any modifications
or special understandings shall be stated and confirmed in writing.
13) Article II, Section 7, page 26 provides: "Nothing
in this statement shall prevent a special faculty appointment from being
converted into a regular appointment at the option of the University and
the School or College to which the faculty member is attached." This provision
demonstrates that it was permissible to recommend Dr. Bernofsky's position
be converted to a tenured position, i.e., an appointment with immediate
tenure, at any time.
14) In fact, Dr. Stjernholm attempted to convert Dr.
Bernofsky's position in 1989. Had Dr. Bernofsky been told this fact, certain
procedures would have been available to him under his contract with Tulane
to appeal the tenure denial decision.
15) In 1977, when Dr. Stjernholm provided Dr. Bernofsky
with copies of documents evidencing the promise of tenure and gave verbal
statements confirming this written documentation, Dr. Bernofsky believed
that his status carried the prospect of tenure. This belief was based on
Dr. Stjernholm's representations signed by the Dean.
16) Under the contract governing Dr. Bernofsky, i.e.,
the 1976 Faculty Handbook, an appointment that carries "the prospect of
tenure" is considered a probationary appointment (See Article II, Section
6, page 26). Article III, Section 1, page 27 states: "The purpose of the
probationary period is to provide opportunity for demonstration of the
suitability of the appointee..." Article III, Section 5 states: "Any appointment
after the faculty member has completed the probationary period automatically
carries tenure." (emphasis added)
17) Article III, Section 3, page 27 provides: "The probationary
period shall not exceed seven years..." Article III, Section 2, page 27
provides that appointments that carry "the prospect of tenure," such as
that of Dr. Bernofsky until his tenure was officially recognized by Tulane,
shall receive year-to-year appointment letters.
18) Dr. Bernofsky has stated that Dr. Stjernholm repeatedly
informed him that he was working to come through with his promise of tenure.
Until this promise was fulfilled, Dr. Bernofsky received annual appointment
letters which he understood would be continued until official tenure was
granted to him. Other research faculty such as Dr. Jen-sie Tou received
similar yearly appointment letters. The fact that Dr. Tou received yearly
appointment letters preceding her conversion to a position with an immediate
grant of tenure, in no way prohibited her from receiving tenure.
19) When Dr. Stjernholm recommended Dr. Tou for tenure,
certain members of Tulane's administration involved in reviewing her credentials
argued that Dr. Tou already had automatic tenure, i.e., de facto
tenure under the provisions of the Faculty Handbook. Subsequently, Dr.
Tou was converted in 1989. Through conversion, Dr. Jen-sie Tou became a
tenured Associate Professor in the Biochemistry Department, the exact same
department in which Dr. Bernofsky was a faculty member.
20) The conversion, which Tulane now claims is prohibited,
occurred after publication of the 1986 Handbook that Tulane has asserted
governs Dr. Bernofsky's relationship with Tulane. The provision limiting
conversion "only within the first seven years of full-time faculty service"
was not applied in the case of Dr. Jen-sie Tou.
21) Tulane's attempt to suggest that the provision covers
Dr. Bernofsky demonstrates the manifestly unequal application of University
rules in Dr. Bernofsky's case. Additionally, Tulane dispensed with "special"
appointments in 1979-80, according to Dean Hamlin.
22) In addition to refusing to honor the tenure obligation
under the terms of the contract governing Dr. Bernofsky's relationship
with Tulane, the 1976 Faculty Handbook, Tulane also violated Dr. Bernofsky's
appointment for the 1994-95 academic year. Despite the fact that Dr. Karam's
May 24, 1994 letter violated controlling provisions of Dr. Bernofsky's
contract with Tulane as set forth in the 1976 Faculty Handbook and modified
by Dr. Stjernholm's promise of tenure, Dr. Bernofsky met the conditions
as outlined in Dr. Karam's letter. He was awarded a grant for $250,000
from the Air Force before his termination date as set forth by Dr. Karam.
Nonetheless, Dr. Bernofsky was locked out of his laboratories on May 3,
1995, while settlement negotiations were under way.
23) In addition to refusing to honor the tenure obligation
under the terms of the contract governing Dr. Bernofsky's relationship
with Tulane, the 1976 Faculty Handbook, the Dean was not entitled to make
Dr. Bernofsky's 1994-95 appointment a terminal appointment. Under the terms
of the contract, Dr. Bernofsky was automatically tenured; therefore the
termination violated his rights under the contract. The 1976 Faculty Handbook,
Article V, Termination of Tenure provides:
Section 1. Termination of an appointment with tenure
or of a special or probationary regular appointment before the end of the
specified term may be effected only for (i) financial exigency, (ii) bona
fide discontinuance of a program or a department of instruction, (iii)
incapacity for medical reasons, (iv) the attainment of retirement age as
defined in Article XIII hereof, or (v) for adequate cause.
Section 2. Termination for adequate cause shall only
be effected in accordance with the dismissal procedures set forth in Article
VI hereof. The term "adequate cause" shall mean unfitness to teach for
reasons which include but are not limited to 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.
Section 3. Where termination of appointment is based
upon financial exigency or bona fide discontinuance of a program or department
of instruction, Article VI shall not apply, but faculty members shall be
able to have the issues reviewed by the faculty of the School of College
in which they hold appointment, then by the Senate Committee on Faculty
Tenure, Freedom and Responsibility, with ultimate review of all controverted
issues by the Tulane Board of Administrators. ... In every case of financial
exigency, the faculty members concerned shall be given notice as soon as
possible and never less than twelve months' notice, or in lieu thereof
they shall be given severance salary for twelve months. ...
24) Even though Tulane was not entitled to make Dr. Bernofsky's
1994-95 appointment "conditional," Dr. Bernofsky nevertheless met Tulane's
conditions of his "conditional appointment." Regardless, Tulane discharged
Dr. Bernofsky.
25) Dr. Bernofsky never rejected the offer to be on the
Seminar Committee. Dr. Bernofsky accepted the offer. Dr. Karam then declined
Dr. Bernofsky's acceptance. Likewise, Dr. Bernofsky never refused to teach.
26) Under the terms of the contract governing Dr. Bernofsky's
relationship with Tulane, the 1976 Faculty Handbook, Dr. Bernofsky could
not be terminated with a mere six months notice. Dismissal procedures for
tenured professors were required.
27) Plaintiff is suffering continuing and irreparable
injury by being deprived of his position of employment with Tulane, loss
of his $250,000 research grant, his equipment secured over the years with
personal and grant funding, the chemical compounds synthesized for ongoing
and future projects, his inventions, 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. He is
entitled to reinstatement with official tenure.
TULANE
28) Dr. Bernofsky never held a tenured or tenure track
position while employed at Tulane. Further, Dr. Bernofsky was never converted
to a tenure track position.
29) The Tulane Faculty Handbook provides that conversion
of a Research Professor in the School of Medicine to the tenure track must
occur within the first seven years of full-time employment.
30) During the course of his employment as a non-tenured
Research Professor, Dr. Bernofsky's appointment was renewed annually for
increments of one academic year.
31) A primary obligation of a Research Professor at Tulane
School of Medicine is to generate the majority of his salary through extramural
grant funding as department funds are not intended to cover the cost of
salaries of Research Professors within the Department of Biochemistry.
32) For several years before his termination, Dr. Bernofsky
was unable to procure research grants sufficient to support the majority
of his salary, and the Biochemistry Department supplemented his grant funds
or paid his full salary, thus, Dr. Bernofsky was not qualified for the
position of Research Professor at Tulane University.
33) Dr. Bernofsky did not sit on any committee within
the Biochemistry Department from 1993 until his termination. Dr. Bernofsky
was not teaching any courses at the medical school at the time the decision
to terminate his employment was made. The last time Dr. Bernofsky taught
in the Biochemistry Department was in 1992. Dr. Bernofsky never taught
an entire course at Tulane; rather, he taught portions of courses led by
other professors.
34) For several years before his termination, Dr. Bernofsky's
published research results were sparse; further, Dr. Bernofsky failed to
publish research in quality, respected medical journals.
35) The other Research Professor within the Biochemistry
Department obtained sufficient extramural grant funds to support the majority
of her salary and participated in teaching and departmental activities
to support her salary.
36) The Faculty Review Committee appointed to review
Dr. Bernofsky was a non-biased group.
37) Dr. Bernofsky registered no objection of bias or
unfairness at the time of the appointment of the Faculty Review Committee.
38) The Faculty Review Committee reviewed Dr. Bernofsky's
performance and published its findings in a May 16, 1994 letter to Dr.
Karam.
30) In its report, the committee concluded that Dr. Bernofsky
had been unsuccessful in obtaining research grants, that he had been receiving
substantial amounts of salary support from the Biochemistry Department,
and that his research results and publications were sparse and not of the
quality expected of a Research Professor at Tulane. The committee also
concluded that he had taught no classes since 1992, was reclusive and did
not participate in Department affairs.
40) Based upon the findings of the Faculty Review Committee,
Dr. Karam recommended to Dean Corrigan that Dr. Bernofsky's appointment
for academic year 1994-95 be renewed a conditional appointment. The conditions
of the 1994-95 reappointment were outlined in a May 24, 1994 letter from
Dr. Karam to Dr. Bernofsky and approved by Dean Corrigan.
41) One of the conditions of the 1994-95 appointment
was that Dr. Bernofsky teach lectures in order to justify full support
of his salary from departmental funds in light of the fact that he had
no extramural grant funding. Dr. Bernofsky refused to teach the lectures
as required by his conditional appointment.
42) On August 9, 1994, Dr. Bernofsky was informed that
his employment would be terminated effective December 31, 1994 if he was
unable to meet the conditions of his appointment.
43) On August 16, 1994, the date of termination was extended
to February 28, 1995, by a letter from Dr. Karam to Dr. Bernofsky, signed
and approved by Dean Corrigan. The termination date, with a six (6) month
termination notice effective September 1, 1994, was extended in response
to Dr. Bernofsky's concerns that he was not being afforded due process
according to University rules.
44) Dr. Bernofsky was terminated effective April 21,
1995 because he was not qualified for the position of Research Professor.
45) No person has been hired in the non-tenure track
position of Research Professor in the Department of Biochemistry since
the termination of Dr. Bernofsky.
46) Dr. Bernofsky did not report or threaten to report
a violation of an environmental statute or regulation. Further, Dr. Bernofsky
never expressed a concern of any environmental violation.
47) Dr. Bernofsky has no specific factual evidence of
race or age discrimination before or after the arrival of Dr. Karam at
Tulane.
48) Dr. Melanie Ehrlich has never alleged discrimination
based upon race, religion, or age.
49) Dr. Cohen has never accused Dr. Karam of discrimination
based upon race, religion, or age. No other employee has ever accused Dr.
Karam of discrimination, other than Dr. Bernofsky.
50) Dr. Bernofsky filed a series of four grievances against
Dr. Karam but never alleged discrimination against him on any basis.
51) The grievances were heard at a grievance hearing
before a Grievance Committee comprised of Dr. Bernofsky's peers; the members
of the Grievance Committee unanimously denied all of Dr. Bernofsky's grievances
against Dr. Karam.
52) Dr. Bernofsky questioned Dr. Karam about the possibility
of conversion to a tenure track position. Dr. Karam inquired about the
issue of Dr. Bernofsky's possible tenure was told by Dean Corrigan that
Dr. Bernofsky could not be converted to a tenure track position as Dr.
Bernofsky had been employed on a full-time basis for more than seven years.
53) Dr. Bernofsky was never promised that he would receive
tenure from Tulane or that he would be converted to a tenure track position.
54) "De facto tenure" does not exist at Tulane
University.
55) Dr. Bernofsky was told by Dr. Karam that his appointment
would be renewed annually if he continued to remain qualified for the position
of Research Professor.
56) Dr. Bernofsky was not justified in relying upon any
alleged promise that he would receive tenure or be converted to a tenure
track position.
57) Dr. Bernofsky did not portray a collegial spirit
within the Biochemistry Department of Tulane Medical School.
58) Tulane did not convert any of Dr. Bernofsky's property
to its own.
59) Dr. Bernofsky, as Principal Investigator, does not
own the equipment or supplies which were purchased with research grant
funds that were granted in the name of Tulane University.
60) Dr. Karam did not harass Dr. Bernofsky nor did he
interfere with any of Dr. Bernofsky's research efforts.
61) Dr. Bernofsky repeatedly accumulated large deficits
on his grant accounts.
9. The Contested Issues of Law
1. Whether Dr. Bernofsky states a claim for discrimination
on the basis of race under 42 U.S.C. 1981 for denial of tenure (failure
to promote); harassment and interference with his research program and
employment; and/or discharge.
2. Whether Dr. Bernofsky states a claim for age discrimination
under the ADEA with respect to his discharge and/or retaliation on the
basis of his age in violation of 29 U.S.C. Section 623 et seq. and/or La.
R.S. 23:972-975.
3. Whether Tulane's denial of tenure to Dr. Bernofsky
and its subsequent retaliation culminating in discharge form a "continuing
violation" under 42 U.S.C 1981.
4. Whether Tulane's denial of tenure to Dr. Bernofsky
and its subsequent retaliation culminating in discharge form a "continuing
violation" under the ADEA.
5. Whether a subjective evaluation infected with
racial discrimination at any level must be given deference by the trier
of fact.
6. Whether a plaintiff must be replaced with a person
outside the protected class to prevail on a claim of race and/or discrimination.
7. Whether Dr. Bernofsky states a claim under Louisiana
Civil Code Art. 2315 for damage to his professional relationships and his
research program.
8. Whether Tulane's conduct was with "malice or reckless
indifference" to Dr. Bernofsky's federally protected rights protected under
42 U.S.C. 1981.
9. Whether age and/or race related remarks reflecting
bias create an inference of discriminatory intent.
10. Whether race and/or age related remarks made
by Dr. Karam, or Dr. Steele provide direct evidence of intentional discrimination.
11. Whether Tulane's adverse action was "willful"
under the ADEA.
12. Whether Tulane is required to establish that
there exists comparable employment.
13. Whether a claim of detrimental reliance sounds
in contract or tort.
14. Whether under the theory of detrimental reliance
Tulane need do anything separate and apart from the action of its employee
to be liable in damages to Dr. Bernofsky.
15. Whether to impose liability on Tulane for the
actions of its employee under the theory of detrimental reliance, the Tulane
employee need only be in the course and scope of his employment when the
tort occurred.
16. Whether the basis for imposing liability on the
employer under detrimental reliance is respondeat superior.
17. Whether the theory of detrimental reliance does
not depend on the agency concept of apparent authority.
18. Whether to prove discrimination under 42 U.S.C.
1981 and/or the ADEA it is sufficient for plaintiff to prove that race
and/or age was "a motivating" factor in Tulane's decision to deny tenure
(failure to promote); harass and interfere with his research program and
employment; retaliate, and/or discharge him.
19. Whether an employer may unilaterally change the
terms of an agreement or contract entered into by the employer and employee.
20. Whether unilateral changes by an employer in
the form of revisions to the Faculty Handbook vitiate the prior written
modification of the written contract previously in force between the parties.
21. Whether any of plaintiff's claims have prescribed
under the applicable law.
22. Whether plaintiff states a claim of conversion
under Louisiana Civil Code Article 2315.
23. Whether under Louisiana law it is sufficient
to have a possessory interest to state a claim for conversion.
24. Whether plaintiff states a claim for damages
under 2315.3.
25. Whether defendant's conduct was willful, wanton
or reckless.
26. Whether damages for future income (front pay)
should be determined by the Court or the jury.
27. Whether plaintiff had a contract with Tulane
and, if so, whether it was breached.
28. Whether the doctrine of detrimental reliance
applies on the facts of this case.
29. Whether Tulane breached the terms of the employment
contract governing the relationship between Dr. Bernofsky and Tulane, i.e.,
the 1976 Faculty Handbook, in denying Dr. Bernofsky tenure, and in terminating
Dr. Bernofsky.
30. Whether Dr. Bernofsky was "de facto" tenured
or automatically tenured under the terms of the contract governing the
relationship between Dr. Bernofsky and Tulane, i.e., the 1976 Faculty Handbook.
31. Whether Tulane breached the terms of the 1994-1995
appointment.
32. Whether Tulane breached the contract governing
the relationship between Dr. Bernofsky and Tulane, i.e., the 1976 Faculty
Handbook, when Tulane did not inform Dr. Bernofsky of its tenure denial
decision.
33. Whether plaintiff states a claim under Louisiana
Revised Statute 30:2027 et seq. for retaliatory action, i.e., adverse employment
action, against Dr. Bernofsky after he complained in good faith about an
environmental hazard - blood, hair, and chemicals - raining down into his
laboratories from the floor above.
34. Whether Dr. Bernofsky's was deprived of his possessory
rights to equipment which he purchased with personal funds, brought to
Tulane from the Mayo Clinic, or purchased with grant funds he generated
while at Tulane.
35. Whether plaintiff states a claim for wrongful
exercise or assumption of authority over Dr. Bernofsky's equipment, essential
to his ability to conduct research, deprived him of possession, permanently
or for an indefinite time, and is a conversion.
10. Listing and Description of Exhibits
Intended to Be Introduced at Trial
Parties have had the opportunity to exchange exhibits in order to formulate
objections thereto. As to any exhibits to which the parties cannot agree, memoranda
have been submitted on or before five working days prior to trial.
| No. |
Description |
Objection |
| 1a |
Carl Bernofsky
Curriculum vitae (1995) |
Objection as to relevancy: Overruled,
unless stipulation offered by defendent |
| 1b |
Willem H. Koppenol
Curriculum vitae (1996) |
Objection as to relevancy: Overruled,
unless stipulation offered by defendent |
| 1c |
Garry R. Buettner
Curriculum vitae (1996) |
Objection as to relevancy: Overruled,
unless stipulation offered by defendent |
| 1d |
J. Stuart Wood
Curriculum vitae (1995) |
Objection as to relevancy: Overruled,
unless stipulation offered by defendent |
| 1e |
Samuel Landry
Curriculum vitae (1995)
(Prod. Reqst. #7 & 21) |
Objection as to relevancy: Overruled,
unless stipulation offered by defendent |
| 1f |
James M. Nolan
Curriculum vitae (1994)
(Prod. Reqst. #7 & 21) |
Objection as to relevancy: Overruled,
unless stipulation offered by defendent |
| 2 |
Carl Bernofsky
List of Funded Grants with CB as Principal
Investigator (1975-1995) |
Objection as to authenticity: Overruled,
subject to proper authentication at trial |
| 3 |
Carl Bernofsky
Publication; Journal of Organic Chemistry
(1994) |
|
| 4 |
Carl Bernofsky
Publication; Journal of Organic Chemistry
(1992) |
|
| 5 |
Carl Bernofsky
Publication; Molecular and Cellular
Biochemistry (1995) |
|
| 6 |
Carl Bernofsky
Publication; Free Radicals in Biology
and Medicine (1990) |
|
| 7 |
Carl Bernofsky
Publication; Free Radical Research
Communications (1990) |
|
| 8 |
Carl Bernofsky
Publication; Biochemical Archives (1993) |
|
| 9a |
Ahsan U. Khan & Michael Kasha
Proc. Nat. Acad. Sci. (1994); Contains
reference to FASEB Journal below (9b) |
|
| 9b |
Carl Bernofsky
Publication; FASEB Journal (1991) |
|
| 10 |
Kluwer Academic Publishers; Publication;
Information for Contributors; Molecular and Cellular Biochemistry |
|
| 11 |
Elsevier Press; Publication; Instructions
to Contributors; Free Radical Biology and Medicine |
|
| 12 |
Harwood Academic Publishers; Publication;
Editorial policy and example of article in Free Radical Research (1996)
showing acceptance by peer who reviewed article |
|
| 13 |
American Chemical Society; Publication;
1996 Guidelines for Authors; Journal of Organic Chemistry |
|
| 14a |
Minnesota Biomedical Research Press;
Publication; Contributor Information; Biochem Arch |
|
| 14b |
88/02/02; Robert Doerr to Carl Bernofsky;
Acceptance letter of an article written by CB which was reviewed by a peer,
Dr. Rao |
|
| 15 |
Federation of American Societies for
Experimental Biology; Publication; Information for Authors; The FASEB Journal
(1996) |
|
| 16a |
91/03/22; H. P. C. Hogenkamp to Carl
Bernofsky; Requesting FASEB J and five Biochem Arch papers |
Objection as to relevancy: Overruled
at this time, subject to stipulation |
| 16b |
91/03/22; Basil A. Pruitt, Jr. to
Carl Bernofsky; Request for FASEB J article |
Objection as to relevancy: Overruled
at this time, subject to stipulation |
| 16c |
87/12/09; J. Hakim to Carl Bernofsky;
Request; Biochem Arch paper |
Objection as to relevancy: Overruled
at this time, subject to stipulation |
| 16d |
87/00/00; Andres O. M. Stoppani to
Carl Bernofsky; Request; Biochem Arch paper and other related reprints |
Objection as to relevancy: Overruled
at this time, subject to stipulation |
| 16e |
88/10/30; Ohara Augusto to Carl Bernofsky;
Request; Free Rad Res Commun and Biochem Archives papers |
Objection as to relevancy: Overruled
at this time, subject to stipulation |
| 16f |
Scientists to Carl Bernofsky; Reprint
requests for the Molecular and Cellular Biochemistry paper (1995) |
Objection as to relevancy: Overruled
at this time, subject to stipulation |
| 17 |
75/04/11; Carl Bernofsky to Rune L.
Stjernholm; Acknowledgment of position and discussion of grants to be transferred |
|
| 18 |
75/04/21; Rune L. Stjernholm &
James T. Hamlin to Carl Bernofsky; Official invitation to be Visiting Scientist |
|
| 19 |
75/04/30; Carl Bernofsky to Rune L.
Stjernholm; Accept invitation to be Visiting Scientist |
|
| 20 |
75/05/22; Carl Bernofsky to Rune L.
Stjernholm; Discuss transfer of NIH grant |
|
| 21 |
75/05/27; Carl Bernofsky to Rune L.
Stjernholm; Discuss transfer of NSF grant; Describe facilities and equipment
transferred |
|
| 22 |
75/06/09; Carl Bernofsky to Rune L.
Stjernholm; Discuss NSF budget |
|
| 23 |
75/06/24; National Cancer Institute
to Tulane University; Notice of grant award ($31,960, direct costs) |
|
| 24 |
75/07/01; Carl Bernofsky to Rune L.
Stjernholm; Details of equipment shipped |
|
| 25a |
75/08/05; James T. Hamlin to Carl
Bernofsky; Appointed Visiting Associate Professor |
|
| 25b |
71/03/00; Tulane Newsletter, 26A;
Publication; Tulane University Senate Statement on Faculty Membership,
Tenure, Retirement, Freedoms and Responsibilities |
|
| 26 |
75/08/15; National Science Foundation
to Tulane University; Notice of grant award ($29,200, direct & indirect
costs) |
|
| 27a |
75/11/20; Carl Bernofsky to James
T. Hamlin; Submit estimate for renovation of Room 6555 |
|
| 27b |
75/10/28; Carl Bernofsky to TMC Maintenance
Department; Alterations in Room 6555 to correct humidity and "mold-growth
conditions" |
|
| 28 |
75/12/18; Carl Bernofsky to Harold
Martin; Agree to pay excess charges for lab renovation |
|
| 29 |
76/01/00; 1976 Faculty Handbook (73
pp) |
|
| 30 |
76/02/13; Carl Bernofsky to Leon D.
Gauthier; Salary for CB not properly proportioned between NSF & NIH
grants |
|
| 31 |
76/06/16; James T. Hamlin to Carl
Bernofsky; Renewal of Special Visiting Associate Professor appointment |
|
| 32 |
76/09/24; Rune L. Stjernholm to Leukemia
Society of America; Chairman's letter in support of nomination for Leukemia
Society Scholar |
|
| 33 |
77/02/15; Rune L. Stjernholm to Dean's
Office; CB placed on non-salary status |
|
| 34 |
77/08/22; James T. Hamlin to Carl
Bernofsky; Changed appointment from Visiting Assoc Prof to Adjunct Assoc
Prof (non-salaried position) |
|
| 35 |
77/09/02; Rune L. Stjernholm to James
T. Hamlin; Request that Dr. Bernofsky's title be changed from Adjunct Professor;
would add him to the regular faculty if he could |
|
| 36 |
77/09/23; Carl Bernofsky to National
Institutes of Health; Grant Application (pages 1-3); Summary Statement
reiterates promise of tenure |
|
| 37 |
77/09/27; Carl Bernofsky to National
Institutes of Health; Research Career Program Application (pages 1-3) with
Hamlin and Stjernholm signatures; Contains promise of tenure |
|
| 38 |
78/03/27; Rune L. Stjernholm to Internal
Revenue Service; Attest to purchase of lab equipment with personal funds |
|
| 39 |
78/06/19; James T. Hamlin to Carl
Bernofsky; Reappointment as Visiting Associate Professor |
|
| 40 |
78/07/10; Rune L. Stjernholm to John
A. DeMoss; Recommendation of CB for a position; Promise of next tenured
position (Prod. Reqst. #1) |
|
| 41 |
78/08/25; Rune L. Stjernholm to Personnel
Department; Faculty Personnel Action; Converted from non-salary to salary
status |
|
| 42 |
78/09/19; James T. Hamlin to Carl
Bernofsky; Confirming status from part-time non-salaried to part-time salaried |
|
| 43a |
78/10/23; Hiram B. Curry to Rune L.
Stjernholm; Recommendation of CB for a position; Praises CB for work at
Case Western Reserve University; Promise of tenure |
|
| 43b |
78/11/16; Rune L. Stjernholm to Hiram
B. Curry; Recommendation to a Chairmanship position for Carl Bernofsky
(Prod. Reqst. #1) |
|
| 43c |
79/02/14; Hiram B. Curry to Rune L.
Stjernholm; Thank you for nomination of Carl Bernofsky (Prod. Reqst. #1) |
|
| 44 |
78/12/08; Rune L. Stjernholm to H.
O. Kunkel; Recommendation of CB for a position; Promise of next tenured
position to CB (Prod. Reqst. #1) |
|
| 45 |
79/01/05; Rune L. Stjernholm to Robert
A. Harris;
Recommendation of CB for a position;
Promise of next tenured position to CB (Prod. Reqst. #1) |
|
| 46 |
79/02/13; James T. Hamlin to Rune
L. Stjernholm; Acknowledges faculty recommendation form for CB; Visiting
appointment no longer appropriate; It is now necessary to change him from
special to regular, to research associate, or terminate him. |
|
| 47 |
79/06/08; Rune L. Stjernholm to Michael
R. Waterman;
Recommendation of CB for a position;
Promise of next tenured position to CB (Prod. Reqst. #1) |
|
| 48 |
79/06/19; James T. Hamlin to Carl
Bernofsky; Reappointment as Visiting Associate Professor |
|
| 49 |
79/07/09; Rune L. Stjernholm to Robert
Roskoski, Jr; Recommendation of CB for position; Promise of next tenured
position to CB (Prod. Reqst. #1) |
|
| 50 |
79/11/16; Rune L. Stjernholm to Helen
Kitzman; Special appointments converted to regular or research appointments |
|
| 51 |
80/06/19; James T. Hamlin to Carl
Bernofsky; Change of appointment from Visiting Associate Professor to Research
Associate Professor |
|
| 52a |
80/08/18; Lawrence S. Lilienfield
to Carl Bernofsky; Inviting CB to send materials for consideration for
a Chairmanship at Georgetown University |
|
| 52b |
80/09/20; Carl Bernofsky to Lawrence
S. Lilienfield; Interested in doing research rather than assuming a Chairmanship
at this time |
|
| 53 |
80/09/05; Carl Bernofsky to James
T. Hamlin; Request that credentials be reviewed for consideration as Research
Professor |
|
| 54a |
81/04/07; Tulane School of Medicine
to Basic Science Faculty; Table of salaries in basic science departments
for 1980-1981 |
Objection as to authenticity: Sustained,
unless properly authenticated at trial |
| 54b |
89/03/29; Tulane School of Medicine
to Basic Science Departments; Table of salaries for basic science departments
for 1987-1988 |
Objection as to authenticity: Sustained,
unless properly authenticated at trial |
| 54c |
91/04/01; Tulane School of Medicine
to Basic Science Departments; Table of salaries in basic sciences for 1990-1991 |
Objection as to authenticity: Sustained,
unless properly authenticated at trial |
| 54d |
94/03/22; Dennis B. McNamara to James
J. Corrigan and
Marian R. Walters; Letter and Table
of salaries for basic science departments for 1992-3 and 1993-4 |
Objection as to authenticity: Sustained,
unless properly authenticated at trial |
| 55 |
81/06/19; James T. Hamlin to Carl
Bernofsky; Renewal of Research Associate Professor appointment |
|
| 56 |
82/05/19; Rune L. Stjernholm to Hulen
B. William; Recommendation of CB for position; Promise of next tenured
position to CB (Prod. Reqst. #1) |
|
| 57 |
82/06/21; James T. Hamlin to Carl
Bernofsky; Renewal of Research Associate Professor appointment |
|
| 58 |
82/08/18; Rune L. Stjernholm to Joe
L. Key;
Recommendation of CB for position;
Promise of next tenured position to CB (Prod. Reqst. #1) |
|
| 59 |
83/01/26; Harland G. Wood to Rune
L. Stjernholm; Letter of recommendation for promotion to professor |
|
| 60 |
83/01/27; Gertrude M. Tyce to Rune
L. Stjernholm; Letter of recommendation for promotion to professor |
|
| 61 |
83/02/03; Lars G. Ljungdahl to Rune
L. Stjernholm; Letter of recommendation for promotion to professor |
|
| 62 |
83/02/09; David A. Goldthwait to Rune
L. Stjernholm; Letter of recommendation for promotion to professor |
|
| 63 |
83/02/10; John T. Shepherd to Rune
L. Stjernholm; Letter of recommendation for promotion to professor |
|
| 64 |
83/04/23; Carl Bernofsky to Eamon
M. Kelly; Request help in delaying implementation of plan to vacate laboratory |
|
| 65 |
83/04/26; Eamon M. Kelly to Carl Bernofsky;
The appropriate person to speak to is Dr. Walsh; Grievances should be addressed
to head of the appropriate Senate Committee |
|
| 66 |
83/05/03; Carl Bernofsky to Horton
A. Johnson; Dr. Stjernholm's assurances are in conflict with those given
by you to Dr. Koerner |
|
| 67 |
83/05/03; Horton A. Johnson to Rune
L. Stjernholm; Restate agreement about Room No. 6555 made last January
returning the room to Pathology Department |
|
| 68 |
83/05/04; Carl Bernofsky to Horton
A. Johnson; Discussion of claim to Room No. 6555 |
|
| 69 |
83/06/20; James T. Hamlin to Carl
Bernofsky; Congratulations on promotion to Research Professor |
|
| 70 |
84/01/09; Illegible to Personnel Department;
Recommendation for Faculty Personnel Action; Reappointment as Research
Professor |
|
| 71 |
84/06/20; James T. Hamlin to Carl
Bernofsky; Renewal of Research Professor appointment |
|
| 72 |
85/01/29; Rune L. Stjernholm to Personnel
Department; Recommendation for Faculty Personnel Action; Reappointment
as Research Professor |
|
| 73 |
85/06/07; James T. Hamlin to Rune
L. Stjernholm; Confirmed that a search must be conducted for any regular
tenured position; Helen Kitzman, Affirmative Action Officer |
|
| 74 |
85/06/20; James T. Hamlin to Carl
Bernofsky; Renewal of Research Professor appointment |
|
| 75 |
85/10/00; Personnel & Honors Committee,
Tulane School of Medicine to General Medical Faculty; Policy Statement
on Criteria for Academic Performance, Promotion and Tenure for Full-time
Faculty in the School of Medicine |
|
| 76 |
85/11/19; Rune L. Stjernholm to Claims
Management Services; In-House Report of Occupational Injury to CB (Prod.
Reqst. #1) |
|
| 77 |
86/00/00; Illegible to Personnel Department;
Recommendation for Faculty Personnel Action; Reappointment of CB as Research
Professor |
|
| 78 |
86/06/20; James T. Hamlin to Carl
Bernofsky; Renewal of Research Professor appointment |
|
| 79a |
86/07/00; Tulane University to General
Medical Faculty; Faculty Handbook (1986) |
|
| 79b |
79/01/00; Tulane University to General
Medical Faculty; Faculty Handbook (1979) |
|
| 80 |
86/12/03; Rune L. Stjernholm to Personnel
Department; Recommendation for Faculty Personnel Action; Reappointment
as Research Professor |
|
| 81 |
87/03/18; G. Ananda Rao to Carl Bernofsky;
Thank you for supporting this infant journal during its teething times
by sending a wonderful paper with exciting results |
|
| 82 |
87/06/20; James T. Hamlin to Carl
Bernofsky; Renewal of Research Professor appointment |
|
| 83 |
87/11/16; Yu-Teh Li to Richard G.
Lynch;
Recommendation of Theodore A.W. Koerner |
Objection as to relevancy: Sustained |
| 84a |
88/01/19; Richard M. Weinshilbaum
to Carl Bernofsky; Message to call; Re: nicontinamide metabolism |
Objection as to relevancy: Overruled
at this time, subject to stipulation |
| 84b |
88/01/15; Richard M. Weinshilbaum
to Carl Bernofsky; Message to call; Re: CB's research |
Objection as to relevancy: Overruled
at this time, subject to stipulation |
| 85 |
88/01/23; Carl Bernofsky to Richard
M. Weinshilbaum; Collegiality; CB sent 4- and 6-pyridones to Weinshilbaum |
Objection as to relevancy: Overruled
at this time, subject to stipulation |
| 86 |
88/05/12; Carl Bernofsky to Albert
R. Garber; Collegiality and collaboration; Will visit lab next week |
Objection as to relevancy: Overruled
at this time, subject to stipulation |
| 87 |
88/05/23; Rune L. Stjernholm to Personnel
Department; Recommendation for Faculty Personnel Action; Reappointment
as Research Professor |
|
| 88 |
88/06/20; Blackwell B. Evans to Carl
Bernofsky; Renewal of Research Professor appointment |
|
| 89 |
88/09/16; Millie Moore to Carl Bernofsky;
Library unable to order journal on oxygen radicals |
|
| 90 |
88/09/30; Peter J. Chapman to Carl
Bernofsky; Thanks for sending the 4-hydroxynicotinic acid. Your authentic
sample allowed an investigation of the identity of compounds |
Objection as to relevancy: Overruled
at this time, subject to stipulation |
| 91 |
88/11/23; Carl Bernofsky to Michael
Walla; Collaboration and collegiality |
Objection as to relevancy: Overruled
at this time, subject to stipulation |
| 92 |
89/00/00?; Rune L. Stjernholm to Vincent
A. Fulginiti; Performance evaluation of CB; Undated, unsigned, and retyped
(Prod. Reqst. #1) |
|
| 93a |
91/09/23; Jim D. Karam to Yu-Teh Li
and Melanie Ehrlich; Evaluation of Biochemistry's Graduate Program |
Objection as to authenticity: Sustained,
unless properly authenticated at trial; Objection as to relevancy: Sustained
as to the documents themselves, subject to the Court's Minute Entry Re:
Testimony of Melanie Ehrlich |
| 93b |
91/10/02; Melanie Ehrlich to Jim D.
Karam; Graduate Program |
Objection as to authenticity: Sustained,
unless properly authenticated at trial; Objection as to relevancy: Sustained
as to the documents themselves, subject to the Court's Minute Entry Re:
Testimony of Melanie Ehrlich |
| 93c |
91/10/01; Yu-Teh Li to Jim D. Karam;
Before the Department can improve, the research of the faculty must be
strengthened |
Objection as to authenticity: Sustained,
unless properly authenticated at trial; Objection as to relevancy: Sustained
as to the documents themselves, subject to the Court's Minute Entry Re:
Testimony of Melanie Ehrlich |
| 93d |
89/00/00; Biochemistry Review Committee
to Tulane School of Medicine; Summary of reviews of all aspects of the
Department of Biochemistry; Individual evaluations by Tulane researchers
including Marion Walters, Pamela Moore, Krishna Agrawal, Sanda Clejan,
Charles Norris |
Objection as to authenticity: Sustained,
unless properly authenticated at trial; Objection as to relevancy: Sustained
as to the documents themselves, subject to the Court's Minute Entry Re:
Testimony of Melanie Ehrlich |
| 93e |
93/10/05; Executive Faculty to General
Medical Faculty; (Section L) Agenda, TUMC Guidelines for the Assignment
of Research Space, and map; "investigators who lose grant support should
be given two grant cycles, or approximately three years, to regain support" |
Objection as to authenticity: Sustained,
unless properly authenticated at trial; Objection as to relevancy: Sustained
as to the documents themselves, subject to the Court's Minute Entry Re:
Testimony of Melanie Ehrlich |
| 93f |
90/08/24; Jim D. Karam to Vincent
Fulginiti; Page 3 of letter of intent; Includes computers for certain areas
of Biochemistry and plans for recruitment, turnover, and early retirement
for faculty |
Objection as to authenticity: Sustained,
unless properly authenticated at trial; Objection as to relevancy: Sustained
as to the documents themselves, subject to the Court's Minute Entry Re:
Testimony of Melanie Ehrlich |
| 93g |
91/11/14; Jim D. Karam to Department
of Biochemistry Faculty; Departmental Goals; roles that can be played by
the Department |
Objection as to authenticity: Sustained,
unless properly authenticated at trial; Objection as to relevancy: Sustained
as to the documents themselves, subject to the Court's Minute Entry Re:
Testimony of Melanie Ehrlich |
| 93h |
94/00/00; Jim Karam to Grievance Committee;
Lists Departmental support for Dr. Ehrlich |
Objection as to authenticity: Sustained,
unless properly authenticated at trial; Objection as to relevancy: Sustained
as to the documents themselves, subject to the Court's Minute Entry Re:
Testimony of Melanie Ehrlich |
| 93i |
91/12/00?; No name to Jim D. Karam;
Negative evaluation of Dr. XXX (Dr. Ehrlich) by Stjernholm, according to
a small post-it which Karam attached to an unsigned document |
Objection as to authenticity: Sustained,
unless properly authenticated at trial; Objection as to relevancy: Sustained
as to the documents themselves, subject to the Court's Minute Entry Re:
Testimony of Melanie Ehrlich |
| 93j |
91/05/15; Eugene Hamori to James D.
Karam; Recommendations for allocation of departmental space for computing
matters |
Objection as to authenticity: Sustained,
unless properly authenticated at trial; Sustained as to the documents themselves,
subject to the Court's Minute Entry Re: Testimony of Melanie Ehrlich |
| 93k |
91/05/17; Eugene Hamori to Jim D.
Karam; Recommendations for allocation of departmental space for computing
matters |
Objection as to authenticity: Sustained,
unless properly authenticated at trial; Sustained as to the documents themselves,
subject to the Court's Minute Entry Re: Testimony of Melanie Ehrlich |
| 93l |
91/05/16; Eugene Hamori to Computer
group (Biochemistry Dept); Map of sixth floor |
Objection as to authenticity: Sustained,
unless properly authenticated at trial; Sustained as to the documents themselves,
subject to the Court's Minute Entry Re: Testimony of Melanie Ehrlich |
| 94 |
89/03/10; Rune L. Stjernholm to Personnel
Department; Recommendation for Faculty Personnel Action; Reappointment
as Research Professor |
|
| 95 |
89/04/14; Rune L. Stjernholm to Blackwell
Evans; Recommends CB for a tenured position in Biochemistry (Prod. Reqst.
#1) |
|
| 96 |
89/08/31; Rune L. Stjernholm to Personnel
Department; Recommendation for Faculty Personnel Action; Reappointment
as Research Professor |
|
| 97 |
90/02/14; Carl Bernofsky to Vincent
A. Fulginiti; Information about EPR proposal |
|
| 98 |
90/03/20; Carl Bernofsky to NIH; NIH
Grant (EPR), Pages 1-3, 54 |
|
| 99a |
94/03/04; J. Larry Crain to Carl Bernofsky;
Request return of $250,000 if EPR is not installed |
|
| 99b |
90/03/22; Vincent A. Fulginiti to
National Institutes of Health; Dean's letter in support of grant application |
|
| 99c |
90/03/23; Vincent A. Fulginiti to
National Institutes of Health; Confirm commitment for EPR Spectrometer |
|
| 100 |
90/03/26; External reviewers to Carl
Bernofsky; Reviews of a grant that was not funded |
Objection as to authenticity: Sustained,
unless properly authenticated at trial |
| 101 |
90/03/29; Paul Guth to Members of
Ad Hoc Faculty Track and Tenure Review Committee; Minutes of final meeting
Re: age discrimination and tenure being an important issue to Basic Science
Faculty |
|
| 102 |
90/04/11; Vincent A. Fulginiti to
Board of Governors, General Medical Faculty, and Student Body; Annual Report;
Stjernholm asked to serve as Acting Chairman after mandatory retirement
because of age; Dates of Corrigan and Evans deanship |
|
| 103a |
90/08/31; L. Dale Gauthier, Jr. to
Rune L. Stjernholm; Support of Su-Chen Li is partially paid by departmental
budget (25%) |
|
| 103b |
90/08/17; Carl Bernofsky to Sheryl
Gros; Dr. Bandara's salary redistributed from NSF grant; Amended budget
proposal |
|
| 103c |
90/05/18; Department of Biochemistry
to Tulane School of Medicine; Breakdown of salaries for Department; CB
and Bandara from DOD and Air Force grants |
|
| 103d |
91/01/05; Tulane University; NSF budget
breakdown |
|
| 104 |
90/05/30; Mary L. Smith to Carl Bernofsky;
Packet on search guidelines and recruitment procedures for faculty positions |
Objection as to authenticity: Moot,
plaintiff will provide a clean copy at trial |
| 105 |
90/06/04; Carl Bernofsky to Mary L.
Smith; Request resolution of conflicts in policies regarding tenure conversion;
Has notes from CB regarding statements of Evola Bates |
|
| 106 |
90/06/19; Carl Bernofsky to NSF &
DOD; Proposal budget NSF (years 1-3); Proposal budget DOD (years 1-3);
Revised budget for DOD (3 years) |
|
| 107 |
90/06/20; Vincent A. Fulginiti to
Carl Bernofsky; Renewal of Research Professor appointment |
|
| 108 |
90/08/01; Victor A. Westbrook to Gene
D'Amour; Notice of NSF Grant Award to CB |
|
| 109 |
90/09/18; Sheryl Gros to Carl Bernofsky;
Alleged that CB used account no. 211604 without authorization |
|
| 110 |
90/09/20; Carl Bernofsky to Sheryl
Gros; Supplied proof that CB paid for personal UPS packages and did not
use account no. 211604 as alleged |
|
| 111 |
90/10/05; Rune L. Stjernholm to Personnel
Department; Recommendation for Faculty Personnel Action; Reappointment
as Research Professor |
|
| 112 |
90/12/08; NIH Study Section to Carl
Bernofsky; Summary Statement |
|
| 113 |
90/12/31; Carl Bernofsky to Vincent
A. Fulginiti; Request that Free Radical Research Communications be continued
in library |
|
| 114 |
91/03/06; Carl Bernofsky to Art Heiss;
Informed him that CB did not receive funding for EPR |
|
| 115 |
91/03/12; General Medical Faculty
to TMC Faculty; Minutes of meeting; Faculty salary increases, sources of
income, % of indirect cost recovery, % distribution of funds to departments |
|
| 116a |
96/00/00; Shirley Bernofsky to Carl
Bernofsky; List of salaries of Tulane employees paid by grants to Carl
Bernofsky |
Objection as to authenticity: Overruled,
subject to proper authentication at trial |
| 116b |
91/04/12; Tulane University to Faculty;
Fringe Benefit Chart 1991-92 and 1992-93 |
Objection as to authenticity: Overruled,
subject to proper authentication at trial |
| 116c |
92/06/22; Carl Bernofsky to Department
of Biochemistry; Chart showing projected salary distribution for DOD grant
for Drs. Bernofsky, Bandara, and Tang for FY 1992-93 |
Objection as to authenticity: Overruled,
subject to proper authentication at trial |
| 117 |
91/06/20; Vincent A. Fulginiti to
Carl Bernofsky; Renewal of Research Professor appointment |
|
| 118 |
91/10/09; Carl Bernofsky to Andrew
J. Buda; Collegiality and collaboration |
|
| 119a |
91/10/23; Carl Bernofsky to LEQSF;
LEQSF Proposal (few pages) |
|
| 119b |
92/02/00; Reviewers to Board of Regents;
LEQSF Proposals ranked for funding |
|
| 119c |
92/07/06; State of Louisiana Board
of Regents to Tulane University Medical Center; Receipt/Gift Form for $360,000
- $250,000 was CB's LEQSF grant |
|
| 120 |
91/10/23; Carl Bernofsky to LEQSF;
LEQSF full proposal |
|
| 121a |
92/03/08; Melanie Ehrlich to Self;
Notes regarding harassment, problems in Department, and Karam's referring
to her labs as "ratholes" |
|
| 121b |
93/10/15; Yu-Teh Li to James J. Corrigan;
Finding a long-term solution to the problem; Li never had a problem with
Karam |
|
| 121c |
91/12/00?; No name to Jim D. Karam;
Negative evaluation of Dr. XXX (Dr. Ehrlich) by Stjernholm, according to
a small post-it which Karam attached to an unsigned document |
|
| 122 |
92/00/00; Tulane Graduate School;
Publication; Tulane Graduate School Bulletin, 1990-1992 |
|
| 123 |
92/01/08; Faculty Seminar Committee
to Department of Biochemistry; CB's seminar; Also lists Ehrlich's and Cohen's
seminars |
|
| 124 |
92/02/01; Carl Bernofsky to Jim D.
Karam; Request a meeting to discuss disposition of Dr. Cohen's spectrophotometer |
|
| 125a |
92/02/19; Jim D. Karam to William
Baricos, Carl Bernofsky, Melanie Ehrlich, Yu-Teh & Su-Chen Li, Jen-sie
Tou; Request help with application to NSF for departmental renovations |
|
| 125b |
92/03/12; Jim D. Karam to Yu-Teh &
Su-Chen Li, Melanie Ehrlich, Jen-sie Tou, William Baricos, Carl Bernofsky;
Memo thanking them for help with NSF Proposal for Infrastructure Development;
Cover sheets for the grant |
|
| 125c |
92/03/02; Jim D. Karam to NSF; NSF
Grant (Departmental Renovation); includes CB and five other researchers |
|
| 126 |
92/02/21; Jim D. Karam to Personnel
Department; Recommendation for Faculty Personnel Action; Reappointment
as Research Professor |
|
| 127a |
94/05/01; Carl Bernofsky to Jim D.
Karam; Annual Report covering 5/1/92 to 4/30/94 (part of packet); Shows
committee membership, service, teaching |
|
| 127b |
92/05/15; Carl Bernofsky to Jim D.
Karam; Submit Annual Report; shows publications, grants, applications under
review, meetings attended, committee membership, other services, and teaching |
|
| 128 |
92/05/26; John Clements to General
Medical Faculty; Minutes; Space Committee formed; Hans Weill assigns space
on three CBR floors |
|
| 129 |
92/06/03; Carl Bernofsky to NSF; NSF
Grant (EPR), Pages 1-3 |
|
| 130 |
92/06/19; Vincent A. Fulginiti to
Carl Bernofsky; Renewal of Research Professor appointment |
|
| 131a |
94/07/08; Carol Uhlich to Trish Waidhas;
Faxed copies of correspondence Re: flood of 7/29/92 |
|
| 131b |
92/07/01; Carl Bernofsky to E. Daniel
Berry; Report flood damage to HPLC equipment |
|
| 131c |
92/07/07; Sylvester Johnson to Dan
Berry; Results of investigation of flood in Room 6015; Confirmation of
blood and animal hair |
|
| 131d |
92/07/08; E. Daniel Berry to Carl
Bernofsky; Investigation of flood |
|
| 131e |
94/06/20; Carl Bernofsky to Jim D.
Karam; Request for help in repairing flood-damaged HPLC equipment |
|
| 131f |
94/07/21; Carol Uhlich to Self; Notes
regarding Tulane personnel being contacted Re: Room no. 6015 flood |
|
| 132 |
92/07/27; Carl Bernofsky to Priscilla
Kilcrease; Request specific approval of EPR components |
|
| 133 |
92/10/12; Jim D. Karam to Samuel J.
Landry; Offer position as Assistant Professor (Prod. Reqst. #7 & 21) |
Objection as to relevancy: Sustained
at this time |
| 134 |
92/11/05; Carl Bernofsky to Jim D.
Karam; Acknowledge plan to juggle salary funds for Bandara if his CAGNO
grant is funded |
|
| 135 |
92/12/15; Carl Bernofsky to Jim D.
Karam; Theft of intellectual property |
|
| 136 |
92/12/17; Carl Bernofsky to Jim D.
Karam; Proposed meeting with Dr. Baricos |
|
| 137 |
92/12/18; Yan Tang to Carl Bernofsky;
Suresh Sikka looking for CB Re: EPR and a project he is working on indicating
free radical role; Has note from CB to self (12/21/92) about work Dr. Sikka
is doing that involves free radicals |
|
| 138 |
92/12/19; Carl Bernofsky to Jim D.
Karam; Summary of events surrounding NIH grant application incident and
meeting with Baricos on 12/18/92 |
|
| 139 |
92/12/23; Jim D. Karam to James J.
Corrigan; Requested that Corrigan look into the matter regarding the NIH
grant application |
|
| 140 |
92/12/23; Jim D. Karam to Carl Bernofsky;
He is turning the matter over to Dr. Corrigan for additional study and
possible action |
|
| 141 |
92/12/29; William H. Baricos to James
J. Corrigan; Requests that Dean Corrigan write a letter documenting that
Dr. Bernofsky's allegations are totally unfounded and clearing his name |
|
| 142a |
96/05/07; Ashton B. Avegno to Dan
Berry; Fax of letters dated 01/26/93 (Building B) and 01/29/93 (Building
C) to Mark Hebert for Gammacell 40 (10,000 lbs); Building C will support
Gammacell 40 (Prod. Reqst. #11) |
|
| 142b |
93/01/26; Ashton B. Avegno to Mark
Hebert; Reviewed structure of Building "B"; Floor cannot support Gammacell
40 (Prod. Reqst. #11) |
|
| 142c |
93/01/29; Ashton B. Avegno to Mark
Hebert; Reviewed Building "C"; Gammacell 40 can be supported; Floor plan
(Prod. Reqst. #11) |
|
| 143 |
93/02/02; Carl Bernofsky to Susan
D. Allen; Inquire about possible DOE funding for EPR enhancement |
|
| 144 |
93/02/05; Carl Bernofsky to Susan
D. Allen; Submit proposal for Tulane/Xavier EM project |
|
| 145 |
93/02/13; Carl Bernofsky to Cindy
Leissinger; Collaborative work involving blood samples received from her
lab |
|
| 146 |
93/03/08; Jim D. Karam to Personnel
Department; Recommendation for Faculty Personnel Action; Reappointment
as Research Professor |
|
| 147 |
93/04/27; Carl Bernofsky to Jim D.
Karam; Discuss funding problems and possible alternatives |
|
| 148 |
93/05/09; James N. McDougal to Carl
Bernofsky; Invitation to visit and discuss with scientists; Interested
in CB's work |
|
| 149 |
93/05/16; Carl Bernofsky to Jim D.
Karam; Agree to serve on Seminar Committee |
|
| 150 |
93/05/19; Carl Bernofsky to Neal A.
Vanselow; Request Space Committee to consider a site for the EPR |
|
| 151 |
93/05/24; Jim D. Karam to Carl Bernofsky;
Thanks for agreeing to serve on Seminar Committee |
|
| 152a |
93/05/25; Who's Who in Science and
Engineering to Carl Bernofsky; Update listing |
|
| 152b |
94/05/08; Who's Who in the World to
Carl Bernofsky; Update information for inclusion |
|
| 153 |
93/05/26; James J. Corrigan to Carl
Bernofsky; EPR spectrometer cannot be housed in Biochemistry Dept. |
|
| 154 |
93/05/27; Carl Bernofsky to Jim D.
Karam; Ask to address issues raised in his memo of 5/16/93; Suggests discriminatory
treatment |
|
| 155a |
94/12/28; Carl Bernofsky to Board
of Regents; Final Project Report on LEQSF grant for EPR spectrometer; Cover
letter to Priscilla Kilcrease |
|
| 155b |
94/07/05; J. Larry Crain to Carl Bernofsky;
Approval for purchases |
|
| 155c |
94/01/31; Carl Bernofsky to Arthur
H. Heiss; Regarding EPR |
|
| 155d |
94/01/24; Arthur H. Heiss to Carl
Bernofsky; Payment request |
|
| 155e |
94/08/11; J. Larry Crain to Carl Bernofsky;
Approved purchase of EPR accessories (including heat exchanger upgrade) |
|
| 155f |
94/09/17; Carl Bernofsky to James
J. Corrigan; Discuss Karam's refusal to approve CB's EPR requisitions and
his approval of Tom Lyttle's requisition |
|
| 155g |
94/06/30; Carl Bernofsky to Susan
D. Allen; Discuss transfer of authority for EPR; Request initial policy
in grant |
|
| 155h |
94/09/07; Carl Bernofsky to Jim D.
Karam; Discuss continued refusal to approve EPR requisitions |
|
| 155i |
94/08/01; Carl Bernofsky to J. Larry
Crain; Request approval for purchase of EPR accessories (including heat
exchanger upgrade) |
|
| 155j |
94/03/01; Carl Bernofsky to Ron Luckett;
Request help in finding a site for EPR |
|
| 155k |
93/06/10; Carl Bernofsky to EPR Advisory
Committee; Discuss Karam's refusal to accept EPR into Department; Will
ask for an extension |
|
| 155l |
94/05/05; J. Larry Crain to Carl Bernofsky;
Extension of the EPR grant; Amendment to contract with signatures |
|
| 156 |
93/06/17; Carl Bernofsky to Susan
D. Allen; Express concern over problems with grant renewal and the need
for DOD funding |
|
| 157 |
93/06/18; James J. Corrigan to Carl
Bernofsky; Renewal of Research Professor appointment |
|
| 158 |
93/06/25; Science; Advertisement for
a Tulane tenure-track position in Biochemistry |
|
| 159 |
93/08/26 & 93/10/05; Tulane University
Medical Center to General Medical Faculty; Guidelines for the Assignment
of Research Space; 10/5/93 Agenda of meeting discussing Guidelines |
Objection as to authenticity: Sustained,
unless properly authenticated at trial |
| 160a |
93/09/08; Jim D. Karam to James J.
Corrigan; CB approached him informally and asked him to recommend him for
tenure; Request for clarification (Prod. Reqst. #1) |
|
| 160b |
93/09/08; James J. Corrigan to Jim
D. Karam; Handwritten reply on bottom of Karam's memo of 8/26/93 (Prod.
Reqst. #1) |
|
| 161 |
93/09/28; Carl Bernofsky to Harrison
C. Spencer; Recommend two potential Directors for the Center for Bioenvironmental
Research |
|
| 162 |
93/10/00; Tulane Monitor; Article
on Dept of Biochemistry funds from NSF (approx $300,000) and Tulane ($500,000) |
|
| 163a |
95/02/14; David A. Rice to Melanie
Ehrlich, Jim D. Karam, James Corrigan, John LaRosa, & John Beal; FTFR
recommends outside professional mediation as a result of Dr. Ehrlich's
grievances |
Objection as to relevancy: Sustained
at this time |
| 163b |
94/01/28; Melanie Ehrlich to FTFR
Committee; Petition to FTFR |
Objection as to relevancy: Sustained
at this time |
| 163c |
93/10/30; Melanie Ehrlich to FTFR
Committee; Grievance by Melanie Ehrlich |
Objection as to relevancy: Sustained
at this time |
| 164 |
93/12/01; Herbert D. Wolff, III, National
Science Foundation to Tulane University; Notice of grant award ($25,000
supplement) to CB |
|
| 165 |
93/12/06; Roy S. Weiner to Carl Bernofsky;
Appointed Contributing Member of Tulane Cancer Center |
|
| 166 |
94/00/00; Tulane University School
of Medicine; Brochure showing Ph.D. Program in Biochemistry |
|
| 167 |
94/00/00; Tulane University School
of Medicine to Peterson's Guide; Department of Biochemistry listing |
|
| 168a |
94/00/00; Anonymous DOD Reviewer to
Tulane/Xavier Bioenvironmental Research Program; Grant critique for Sanda
Clejan (Prod. Reqst. #31) |
Objection as to relevancy: Sustained
as to S. Clejan and D. Hurley |
| 168b |
94/00/00; Anonymous DOD Reviewer to
Tulane/Xavier Bioenvironmental Research Program; Grant critique for David
L. Hurley (Prod. Reqst. #31) |
Objection as to relevancy: Sustained
as to S. Clejan and D. Hurley |
| 168c |
94/00/00; Anonymous DOD Reviewer to
Tulane/Xavier Bioenvironmental Research Program; Grant critique for Carl
Bernofsky (Prod. Reqst. #31) |
|
| 169a |
94/01/21; Irving H. LaValle to Carl
Bernofsky; Appointment to the Sub-Committee on Coordinated Research Instrumentation
Facility |
|
| 169b |
94/08/29; Irving H. LaValle to Carl
Bernofsky; Appointment to the Sub-Committee on Coordinated Research Instrumentation
Facility |
|
| 170a |
95/07/16; Melanie Ehrlich to Eamon
Kelly; Harassment by Jim D. Karam |
Objection as to relevancy: Sustained
as to the documents themselves, subject to the Court's Minute Entry Re:
Testimony of Melanie Ehrlich |
| 170b |
95/07/31; Melanie Ehrlich to David
Rice; Background for Petition to FTFR |
Objection as to relevancy: Sustained
as to the documents themselves, subject to the Court's Minute Entry Re:
Testimony of Melanie Ehrlich |
| 170c |
94/07/01; Jim D. Karam to Melanie
Ehrlich; Notice of annual evaluation and assignments for coming year |
Objection as to relevancy: Sustained
as to the documents themselves, subject to the Court's Minute Entry Re:
Testimony of Melanie Ehrlich |
| 170d |
96/08/15; Melanie Ehrlich to James
Corrigan; Request for reconsideration of salary for 1995-96 |
Objection as to relevancy: |
