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

Supplemental Memorandum in Opposition to Defendant's Motion for Summary Judgment

(Case No. 95-0358, Docket No. 105, Vol. 9, pp. 2263-2360, July 8, 1996)
 
 
UNITED STATES DISTRICT COURT FOR
THE EASTERN DISTRICT OF LOUISIANA
 
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
DR. CARL BERNOFSKY * CIVIL ACTION
Plaintiff * No. 95:0358
VERSUS *
* SECTION "C" (2)
TULANE UNIVERSITY MEDICAL SCHOOL *
Defendant * JUDGE BERRIGAN
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *

 
SUPPLEMENTAL MEMORANDUM IN
OPPOSITION TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

I. Facts Showing A Pattern Of Discrimination Against Jewish Faculty.

Within the first two weeks after Dr. Karam arrived, he took adverse action against all three Jewish faculty members. Within the first two weeks after his arrival, he moved both Dr. Bernofsky and Dr. Cohen out of their offices. Relocating the enormous amount of files concerning grant information, publications, etc. was an enormous burden. In Dr. Bernofsky's case this dislocation took months to remedy after he was required to move his office into a smaller area. Neither Dr. Cohen or Dr. Bernofsky willingly moved.

Even before he arrived at Tulane University Medical School, around October 1, 1992, Dr. Karam wrote an inflammatory letter to Dr. Ehrlich accusing her of improper behavior. The FTFR [Senate Committee on Faculty Tenure, Freedom and Responsibility] cited Dr. Karam for non-collegiality, partially as a result of this letter. (See FTFR Decision, attached as Exhibit A).

Dr. Karam wrote a letter to then Dean Fulginiti stating that he "would have liked to propose a faster rate of faculty turnover . . . to expedite faculty turnover . . ." After his arrival, one professor was retired who had a substance abuse problem; the remaining turnovers have come from the ranks of the Jewish professors. Thereafter, Dr. Cohen was encouraged to retire, Dr. Bernofsky was terminated, and Dr. Ehrlich is not yet completely ousted but subject to physical removal from within the Department.

In December 1991, Dr. Stjernholm handed Dr. Ehrlich a "form letter" or "XXX" letter which the "secret committee" had used and had been organized by Dr. Karam to "deal" with Dr. Ehrlich. The form letter is believed to have been written by Dr. Karam. This "XXX" letter sets out a "formula" for discrediting a professor within the Department.

The formula was applied to both Dr. Bernofsky and Dr. Ehrlich. The formula focuses on creating the impression that "XXX" had conflicts with the secretarial staff and was not liked by his/her peers.

With or without the "XXX" letter, the same pattern of allegations lodged against Dr. Bernofsky by Dr. Karam have been lodged against Dr. Ehrlich by Dr. Karam. Dr. Karam has accused Dr. Ehrlich of many of the same behaviors he attributed to Dr. Bernofsky. (Anti-Semitism usually includes a belief that individual Jews have a similar unchanging nature).(1)

Dr. Karam has accused both Dr. Bernofsky and Dr. Ehrlich of refusing to cover grant overdrafts. Prior to Dr. Karam's arrival, Dr. Ehrlich consistently had the first or second highest grant funding. Prior to Dr. Karam's arrival, Dr. Bernofsky had the third highest grant funding in the Department. (See Regents Report as Exhibit B).

Dr. Karam also repeatedly accused both Dr. Bernofsky and Dr. Ehrlich of refusing to provide his office with a copy of grant applications and other paperwork. Dr. Karam's evaluations of both Dr. Bernofsky and Dr. Ehrlich in large part follow his "XXX" written formula.

Dr. Ehrlich testified that, from the time she first arrived at Tulane, Dr. Y.T.Li has not gotten along with her and seemed to have "a chip on his shoulder." Similarly, Dr. Li has had conflicts with Dr. Bernofsky concerning lab equipment that Dr. Cohen made available when he was relocated from his labs. Dr. Bernofsky wrote a memorandum to Dr. Karam in January 1992 concerning the conflict. (See Memorandum Exhibit C). The incident was ignored.

At his deposition, Dr. Li was asked whether he liked or disliked Dr. Bernofsky. Dr. Li replied, "No comment." Anti-Semites seldom allow themselves to be ruled by feelings of sympathy or antipathy toward Jews. The Jewish Problem generally requires collaboration with other people of similar convictions in facilitating a solution.

Dr. Karam was aware that Dr. Li had conflicts with both Dr. Bernofsky and Dr. Ehrlich, yet he chose to select Dr. Li to sit on the Review Committee which evaluated Dr. Bernofsky's performance. Dr. Li, in supporting Dr. Karam, wrote to Dean Corrigan that Dr. Ehrlich had been a problem since she joined the faculty. Dr. Li asked the Dean to "help us find a long term solution to this problem." (See Dr. Li's letter attached as Exhibit D).

Dr. Cohen, Dr. Bernofsky, and Dr. Ehrlich had problems with Dr. Baricos. Dr. Baricos claimed that Dr. Bernofsky accused him of "intellectual theft" of a grant proposal. This claim forms the basis for Dr. Karam's assertion that Dr. Bernofsky is non-collegial. Dr. Baricos had an earlier dispute with Dr. Cohen over authorship of an article which Dr. Baricos claimed as his own. (See Cohen deposition pages 24-25 attached as Exhibit E).

Dr. Karam ignored environmental problems affecting Dr. Bernofsky and Dr. Ehrlich. Dr. Bernofsky complained about blood, animal hair, and chemicals raining down into his laboratory from the floor above. Rather than attempting to remedy the environmental problem, Dr. Karam focused the blame on Dr. Bernofsky and complained of Dr. Bernofsky's "harping." Dr. Karam sought to have Dr. Bernofsky reprimanded at grievance proceedings.

Dr. Ehrlich's experiences were similar to Dr. Bernofsky's concerning environmental problems. In Dr. Ehrlich's case, Dr. Karam directed discharges from his laboratory into her office, creating a noxious odor. When Dr. Ehrlich complained, no corrective action was taken by Dr. Karam until she wrote to Environmental Safety. Then Dr. Karam stalled the requisition to pay for the duct work necessary to stop the problem. (Ehrlich, Deposition pages 61-63 attached as Exhibit F).

Dr. Karam called Dr. Ehrlich's laboratories "rat holes." What comes out of a rat hole is a rat. A rat resides in a "rat hole." Dr. Ehrlich testified that she knew the connotation of the term "Jew-rat."(2) (See Ehrlich deposition at page 47, Exhibit G). Dr. Karam's insult was no innocent remark.

Dr. Richard Steele, one of the decision makers or, at a minimum, a Review Committee member with significant input into the peer evaluation of Dr. Bernofsky, stated at his deposition that Tulane has "so many Jewish people" it was called "Jewlane." (See Steele deposition at page 59, Exhibit H).  Realizing his mistake, Dr. Steele stopped his recitation. The finished rhyme is: "Tulane Jewlane, Hebrew High; Jewlane Tulane, Too Many Rabbi."

II. Discrimination Based On Race.

Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 459-60, 10 F.E.P. Cases 817, 819 (1975) holds that "42 U.S.C. Section 1981 affords a federal remedy against discrimination in private employment on the basis of race." The Court's holding makes clear that Section 1981 was intended to "proscribe discrimination in the making or enforcement of contracts against or in favor of any race." McDonald v. Santa Fe Trail Transportation Co., 427 U.S. 273, 96 S.Ct. 2574, 12 F.E.P. Cases 1585 (1976). Private individuals and organizations can be sued under Section 1981, Runyon v. McCrary, 427 U.S. 160, 168-74 (1976). Likewise, Section 1981 prohibits discrimination based on ancestry or ethnicity. St. Francis College v. Al-Khazraji, 481 U.S. 604 (1987). Moreover, Section 101 of the Civil Rights Act of 1991 prohibits intentional discrimination in "the making, performance, modification, and termination of contracts." The Act thereby substantially broadens Section 1981 to include discriminatory terminations, harassment, failure to promote and other discrimination in the performance of contracts.

In McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), the Supreme Court announced the manner in which a discrimination claim may be established. A prima facie case may be shown in a variety of ways, and no one set of criteria is applicable in all situations. Id. at 93 S.Ct. 1824 n. 13. The employee must show a prima facie case of discrimination; once a prima facie case has been shown, the burden shifts to employer to articulate some non-discriminatory reason for the challenged action.  If such a facially legitimate reason is proffered, the employee must then bear the burden of demonstrating that the reason given by the employer is in fact merely a pretext.

Although Green was a hiring case, its four factors for establishing a prima facie case have been extended to discharge situations by this circuit. Burdine v. Texas Department of Community Affairs, 608 F.2d 563 (5th Cir. 1979).

The plaintiff must show that 1) he belongs to a group protected by the statute; 2) he was qualified for the job from which he was suspended and not rehired; 3) he was terminated; and 4) after his termination, the employer hired a person not in plaintiff's protected class, or retained those not in plaintiff's protected class. See Green, 411 U.S. at 802, 93 S.Ct. at 1824.

Alternatively, the plaintiff may establish a prima facie case by showing that he is a member of a protected class, he was qualified for the position, and persons outside the protected class were treated more favorably than he. Waggoner v. City of Garland, 987 F.2d 1160, 1163 (5th Cir. 1993); Johnson v. Chapel Hill Indep. School Dist., 853 F.2d 375, 381 (5th Cir. 1988).

Actions brought under Section 1981 require the same elements of proof as a Title VII action. Whiting v. Jackson State University, 616 F.2d 116, 121 (5th Cir. 1980). As stated in Whiting, to establish a prima facie case the plaintiff must show that 1) he belongs to a group protected by the statute; 2) he was qualified for the job from which he was suspended and not rehired; 3) he was terminated and/or 4) after his termination, the employer hired a person not in plaintiff's class, or retained those having comparable or lesser qualifications not in plaintiff's protected class, or that employees outside of the protected class were more favorably treated. See McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. at 1824.

With respect to denial of tenure, the fourth prong is: tenure positions "were open at the time plaintiff was denied tenure, in the sense that others were granted tenure in the department during a period relatively near to the time plaintiff was denied tenure." Roebuck v. Drexel University, 852 F.2d 715 (3rd Cir. 1988), citing Banerjee v. Board of Trustees of Smith College, 648 F.2d 61, 63 (1st Cir.), cert. denied, 454 U.S. 1098, 102 S.Ct. 671, 70 L.Ed.2d 639 (1981).

In Smith v. Texas Dept. of Water Resources, __ F.2d ___, 41 F.E.P. Cases 1329 (5th Cir. 1986), the Fifth Circuit modified the law applicable to discriminatory discharges stating that "[w]hile [the fourth prong] may be an element in the normal discharge case, Jackson v. City of Kileen, 654 F.2d 1181, 1183, 26 FEP Cases 1515 (5th Cir. 1981), the facts necessarily vary in Title VII cases and the normal requirements of a prima facie case are 'not necessarily applicable in every respect to differing factual situations.' McDonnell Douglas Corp. v. Green, 411 U.S. 792 802 n. 14, 5 F.E.P. Cases 965 (1973)." Smith, at 1330.

The Supreme Court and the Fifth Circuit have directed that application of the McDonnell Douglas requirements must be varied with the facts of each case. Therefore, a plaintiff in the Fifth Circuit may establish a prima facie case of discriminatory discharge even where there is no evidence offered that the former employer sought to fill the position vacated by the plaintiff.

III. The Prima Facie Case - Race.

1) Dr. Bernofsky Is In The Protected Class.

First, Dr. Bernofsky is 62 years old and is Jewish. He is within the protected categories with respect to race and age.(3)

2) Dr. Bernofsky Was Qualified For The Position He Held.

Second, Dr. Bernofsky is a world recognized research Biochemist with over sixty published articles on advanced Biochemistry. Eminent scholars in Dr. Bernofsky's field have voluntarily sent letters demonstrating Dr. Bernofsky's qualifications as a Research Professor. (Refer to Memorandum In Opposition To Motion For Summary Judgment, Exhibits 1, 2, 3, 4, previously submitted).

On February 3, 1995, Dr. Bernofsky received notification of a grant from the Air Force in the amount of $250,000.00 to support his research program. Despite receipt of this substantial grant award, Tulane discharged Dr. Bernofsky.

Tulane asserts that Dr. Bernofsky was not qualified for the position he held because he failed to support his own salary.

However, Dr. Bernofsky was never required to pay 100% of his salary. On June 8, 1979 Dr. Stjernholm by written letter stated: "Dr. Bernofsky would contribute to his own salary and provide for his group from grants." (See Exhibit I).

At his deposition, Dr. Stjernholm testified:

Q. Well, it says here he didn't request part time salary until July of 1981.
A. All right.

Q. And then, at that time, Tulane agreed to pay seventy percent of his salary.
A. Yes.

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

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

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

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

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

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

Q. Do good quality research?
A. Right.

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

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

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

Q. -- is that correct?
A. Uh-huh (affirmative response).
(Stjernholm deposition, pages 174-175, attached as Exhibit J).

In Fisher v. Dillard, 499 F.Supp. 525 (E.D. La. 1980), the court in concluding that plaintiff was qualified for her job noted that plaintiff held a Ph.D. from a respected school. Plaintiff had previously had her contract renewed, and had applied for and was awarded a National Science Foundation ("NSF") grant. Based on these factors alone, the plaintiff was qualified for the position.

Additionally, Dr. Koppenol's deposition testimony provides that Dr. Bernofsky published quality research results in scholarly journals from 1989 until after the time of his discharge in 1995 which is the relevant period Tulane asserts Dr. Bernofsky's productivity declined.

With respect to involvement in Departmental activities, Dr. Bernofsky has testified that he was willing to teach if Dr. Karam would simply address the tenure issue. Moreover, Dr. Bernofsky has testified that he was taken off of the computer committee and excluded from various activities by Dr. Karam.

A. . . . But I never -- after Karam came, I never received any other communications from the School of Public Health. The Task Force, the EM Task Force Committee, would normally meet in the School of Public Health.

Q. Are you suggesting, in any way, that Dr. Karam had something to do with your being removed from a committee --
A. That was --

Q. -- or why are you telling us this?
A. I'm telling you this because the circumstantial evidence is that he may have had something to do with this.

Q. And what is that --
A. I can't be sure.

Q. What is that circumstantial evidence?
A. That I suddenly was not reappointed for the Committee, just as I was not reappointed to the Computer Committee. Now, I believe that I was not reappointed to the Computer Committee because I complained to him about not having a computer. He was retaliating against me, at that time, for that. I mean, Karam was retaliating against me from the time I first asked him for tenure.
(Bernofsky deposition pages 238-239, attached as Exhibit K; also, see Affidavit submitted with Opposition Memorandum to Motion For Summary Judgment).

Dr. Bernofsky successfully put together an EPR application which had five other collaborators. This effort is a demonstration of collegiality.

Dr. Bernofsky denied that he ever accused a fellow colleague of intellectual theft of his property. Dr. Karam's charge of non-collegiality is based on this purported accusation. Prior to Dr. Karam's arrival there were no charges of collegiality against Dr. Bernofsky.

Dr. Su-Chen Li, when asked how she got along with Dr. Bernofsky, stated ". . . no problem with Dr. Bernofsky." (Dr. Su-Chen Li deposition at page 17, attached as Exhibit L).

Dr. Beckman, when asked if she found Dr. Bernofsky collegial, stated "Yes." (Dr. Beckman deposition at page 10, attached as Exhibit M).

Similarly, Dr. Floyd Domer when asked if he considered Dr. Bernofsky collegial, stated "Sure." (Dr. Domer deposition at page 7, attached as Exhibit N).

According to Tulane, the crucial elements for the position of Research Professor are: research grant funding, publication of quality research results, involvement in Departmental activities and collegiality.

Dr. Bernofsky has alleged that his grant funding fell off as a result of Dr. Karam's interference and harassment. A complete discussion of Dr. Karam's interference with Dr. Bernofsky's staff and installation and use of the EPR has already been fully discussed and will not be repeated here.

However, Dr. Bernofsky is entitled to "all reasonable inferences" including that if his staff had not been interfered with and ultimately terminated, and if he had been able to use the EPR in a timely manner, he would not have lost his NSF grant and would have been able to continue generating grant funding as he had done prior to Dr. Karam's arrival. Portis v. First National Bank of New Albany MS, 34 F.3d 325 (5th Cir. 1994).

3) Dr. Bernofsky Was Terminated.

Dr. Bernofsky was terminated.

4) Tulane Retained Persons With Comparable Or Lesser Qualifications Not In The Protected Class.

Tulane retained another Research Professor, Dr. Su-Chen Li. Dr. Su-Chen Li, the only other non-tenured Research Professor in the Department, is not in the protected class and has comparable or lesser qualifications than Dr. Bernofsky.

Q. Now, this Li would be which Li?
A. This is Yu-Teh Li, the husband.

Q. The husband's forty-five hours? He teaches?
A. Yes. Yes.

Q. Okay. I don't see Su-Chen Li, and I don't see Tou's?
A. No. Su-Chen does not give us a lot of lectures, only when he is out of town.
(Stjernholm's deposition at 183-184, attached as Exhibit O).

- - - - - - - -

Q. -- "The reviewers notice that in addition to a very light teaching load, Dr. Bernofsky does not participate in or is exempt from all of these educational activities"?
A. That's right.

Q. But he was exempt because he was a research professor?
A. Yes. No problem with that.

Q. That wasn't held against him, you're saying?
A. No. Uh-uh (negative response).

Q. So Dr. Su-Chen Li did no teaching?
A. Very little.
(Stjernholm's deposition at 185, attached as Exhibit P).

- - - - - - - -

Q. Did you ever ask him to be on any of these committees?
A. I might, but I also know that he needs his time. He needed time for research. I didn't want to burden him. But I have to come down with it because Karam doesn't know who Bernofsky is.

Q. Okay. Well, he'd been there since 1991.
A. Yes, but at the time, you know -- you know, I am the only one that knows him all the way back for twenty years, and I just wanted to be fair. We didn't overuse Bernofsky to let him do his research.
(Stjernholm's deposition at 186-187, attached as Exhibit Q).

Additionally, Dr. Bernofsky's department is actively recruiting Biochemistry candidates with fewer credentials and allowing faculty members with lesser credentials outside the protected class to continue to remain in their positions.

By these two measures, Dr. Bernofsky satisfies the final Whiting criteria. Whiting, 616 F.2d at 121.

At the time of his discharge, Dr. Bernofsky was qualified for the position he held and has made out a prima facie case of racial discrimination under McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 & n.13, 93 S.Ct. 1817, 1824, 35 L.Ed.2d 668 (1973) and Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 25 F.E.P. Cases 113 (1981).

IV. Pretext.

Tulane asserts that the termination of Dr. Bernofsky was based on legitimate and nondiscriminatory reasons. "Tulane terminated Dr. Bernofsky's employment because he simply was not contributing any support whatsoever to the Biochemistry Department. The bottom line is he was not an asset to the Department, and had not been an asset in recent years. . . . The practice of supporting Dr. Bernofsky's salary with department funds is a long-standing one; its cessation was long overdue, given that it had become abundantly clear that he had lost his ability to acquire funding and was not publishing in scholarly journals. His inability to generate funding for his research was a direct reflection on the quality of his research and publication." (Defendant's Memorandum In Support Of Motion For Summary Judgment, Page 17-18).

"This system is analogous to most business operations. Dr. Bernofsky depleted the Department's funds . . . and, failed to contribute in return." (Defendant's Memorandum In Support Of Motion For Summary Judgment, Page 17-18).

In Dr. Wood's expert report, dated October 2, 1995 he states: It appears from his grant record that Dr. Bernofsky was a very prolific and valued researcher and winner of grants, and that he contributed significantly and materially to the revenues of the Tulane School of Medicine. Based on this record, one would predict that, absent the situation that is the subject of this lawsuit, Dr. Bernofsky would have continued to receive an increasing dollar volume of grants during 1994, 1995, and in subsequent years, and would have continued to benefit the Tulane Medical School significantly and materially.

After Tulane was compelled by the Magistrate to produce documents responsive to Dr. Bernofsky's requests, Tulane produced documents upon which Dr. Wood further developed his initial opinion. These documents began to be produced in mid-May up through June 7, 1996.

After review of the documents,(4) Dr. Wood stated:

As noted in my initial report in this matter, dated October 2, 1995, Dr. Carl Bernofsky . . . contributed significantly and materially to the revenues of the Tulane Medical School of Medicine . . .

In other words, Dr. Bernofsky was, in business terms, an "asset" of the Biochemistry Department and the Tulane School of Medicine. That is, evaluated on a business basis, according to the principles of accounting, Dr. Bernofsky brought in more benefits than costs to the Biochemistry Department, and the accumulation of these net benefits in years prior to 1993 was still positive even after his grants ceased, so that the accumulated investment which he provided to the Department had not yet eroded by the lack of grant sources, even by the time of his dismissal of 1995. Taking account of the facilities and resources consumed by Dr. Bernofsky's research program, Dr. Bernofsky had a "benefit/cost ratio larger than the other researchers whose performance I studied. Even including 1994 in the analysis, Dr. Bernofsky's economic contribution to the Department was a net benefit and Dr. Bernofsky should be considered a net asset of the Department. This conclusion is especially true when Dr. Bernofsky's "benefit/cost" ratio is compared with the performance of the other members of the Biochemistry Department which I have studied. . . .

. . . the salaries paid to Dr. Bernofsky in any year "by Tulane" (actually it appears that, economically, Dr. Bernofsky paid his own salary by acquiring research grants which provided indirect funds to Tulane) were below the median salaries paid by other typical research universities to comparable-grade professors. Considering that Dr. Bernofsky appears to be a nationally prominent researcher, to judge from his publication record and the testimonials [depositions & expert reports] I have seen, Tulane appears to have received Dr. Bernofsky's services at a below-market price.

. . . It is not economically accurate to characterize Dr. Bernofsky's salary as being supported out of funds provided by other sources at Tulane; it is not economically accurate to characterize Dr. Bernofsky's salary as being supported out of "Departmental funds." Nor is it economically accurate to characterize Dr. Bernofsky's presence or activities as causing a depletion of the Biochemistry Department's funds during his last years there. The accounting conventions which may have been employed to give the appearance that Dr. Bernofsky was carried in an economic sense by the Biochemistry Department do not describe reality of the situation, but are arbitrary constructions.

. . . Economically, viewing Dr. Bernofsky's laboratory as a "profit center" within the Biochemistry Department . . . The difference is the net benefit to Tulane. This difference, net of laboratory salaries, appears positive from my investigations to date, and shows that Dr. Bernofsky's activities were a net economic benefit to the Biochemistry Department. . . . The Department assertion that a certain percentage of Dr. Bernofsky's salary (such as 65% or more) was covered by the Department, resulting in the idea that Dr. Bernofsky personally constituted a net economic drain on the Department, is not correct. (See Wood, expert report dated June 27, 1996, Exhibit X).

Tulane asserts that Dr. Bernofsky "had lost his ability to acquire funding and was not publishing in scholarly journals. His inability to generate funding for his research was a direct reflection on the quality of his research and publication."

The facts, according to Tulane, proving plaintiff's disqualification are derived from "the specially appointed peer review committee, established by Dr. Karam to review Bernofsky's performance in the Department of Biochemistry in order to determine if he was qualified for the position of Research Professor." (See "Defendant's Supplemental Memorandum In Opposition To Plaintiff's Motion For Preliminary Injunction," page 12).

"The peer review committee was charged by Dr. Karam in an effort to provide an independent review of Bernofsky's performance by his peers to avoid Dr. Karam's making the decision regarding Bernofsky's qualification without peer review. Dr. Karam was not required to appoint a committee of Bernofsky's peers, but he did so to ensure an objective decision." (See "Defendant's Supplemental Memorandum In Opposition To Plaintiff's Motion For Preliminary Injunction," page 12).

Q. Okay. Now, here's a letter from Dr. Karam to you -- well, it's really not to you. It's to Yu-Teh Li, you and Dr. Steele --
A. Yes.

Q. -- specifying the charge of the Committee.
A. Yes.

Q. And you were to evaluate Dr. Bernofsky?
(Page 164)

Q. That was the most recent work, you're telling me?
A. Not in the last two years. I don't know what Dr. Bernofsky has done the last two years, because I haven't followed it.
(Stjernholm, 33)

Q. . . . the reviewers examined his past and present research activities. And you noticed that Dr. Bernofsky's major focus is on free radicals and mechanisms of inflammatory tissue damage. And I think you've previously testified that you don't really have a great knowledge on free radical research?
A. One of the committee members.

Q. Was Dr. Steele?
A. That's right.

Q. So you relied primarily on Dr. Steele?
A. I think so.
(Li, page 13)

Q. Okay. Now when you evaluated Dr. Bernofsky, did you, in your evaluation, know at the time that all of the things that he had published in were peer reviewed?
A. At that time, I -- my -- you see, I did not put that -- that as the important factor.
(Li, page 22)

Dr. Li admitted at his deposition that all of Dr. Bernofsky's work was published in peer reviewed journals. Li pages 13-20.

Q. Well, you -- I believe there was a -- what kind of committee was put together? You, Dr. Li, and Dr. Stjernholm all put on a committee, I think in 1994, to evaluate Dr. Bernofsky?
A. Yes, I got appointed in '94.

Q. We asked Dr. Stjernholm about that, and he said that they pretty much relied upon you to evaluate -- well, that's what they said, sir --
A. Upon me to what?

Q. Dr. Stjernholm said that they relied upon you to tell them what was good and bad about Dr. Bernofsky's publications.
A. I don't remember them relying on me for that.

Q. What did they rely on you for, then?
A. I don't know what they -- well, I was probably more familiar with Carl's work than anybody else in the department because we had such close interests.

Q. Well, did you have a chance to look at the papers he published and review them?
A. Yes. We had a list of his publications, I think.

Q. Right. Did you read any of them?
A. Well, I've read a few of his publications that he'd submitted. He let me read some of his work, and we published together.

Q. Well, I understand that, but I'm talking about when you did the review back in 1994.
A. No, I don't think we looked -- let's see. I'm not sure at that time I went back and read any papers.

Q. Because Dr. Stjernholm told me he couldn't even find the papers. He couldn't find them in Texas. He couldn't find them in Louisiana. I was wondering how you read them.
A. Well, I didn't read -- obviously, I didn't read those we couldn't find, but some of those in the other journals that he's published in I'm familiar with. He's given me copies of his papers.

Q. Okay. Were his papers pretty good papers?
A. Always good papers. I always had high respect for Carl's work. And it doesn't matter where they're published, like I said earlier. That work will lie there. It may not be recognized right now, but it will be there if it's good work.

Q. Well, we asked Dr. Li about that, also, and he sort of alluded to that -- I asked him whether the journals were peer reviewed, and he said, well, it really didn't matter whether it was peer reviewed. It was just the function of the article itself.
A. Right.

Q. That's what, pretty much, he said, because he corrected me when I kept asking him about peer review, peer review. And the reason I asked that was Stjernholm said the articles weren't peer reviewed. So we brought in the peer review to show that they were peer reviewed. And Dr. Li said it didn't matter whether it was peer reviewed, it was the quality of the articles.
(Steele 30-32)

Dr. Steel, whom the committee relied upon to evaluate Dr. Bernofsky's work, admitted that he had not read Dr. Bernofsky's latest work. Dr. Steele stated "I'm not sure at that time I went back and read any papers." Dr. Stjernholm stated "I don't know what Dr. Bernofsky has done the last two years, because I haven't followed it."  In response to "So you relied primarily on Dr. Steele?" Dr. Li admitted "I think so."

Q. When you evaluated Dr. Bernofsky in 1994, did you keep any notes on your evaluation?
A. I think Stjernholm took notes, I believe.

Q. Stjernholm took notes?
A. I believe he took notes, yes. We didn't have a recorder. I don't believe I had a recorder.

Q. Did Dr. Li take notes?
A. Not that I know of. I didn't take notes.

Q. Well, how long did the evaluation last? Did you all just meet in a room?
A. We met twice, I think.

Q. How long did you meet?
A. I guess -- I don't know -- I'm thinking -- I'm just remembering -- it seemed to me about an hour, an hour-and-a-half, two hours, something like that each time. I think it was twice.

Q. Did you prepare before you met?
A. Well, I didn't know what we were doing until we met.

Q. And then you had the first meeting?
A. Yes, we met on the first meeting.

Q. And then you met again?
A. Yes, then again.

Q. Did you do any research or anything in between?
A. Well, I didn't have to, in terms of what we were doing.
(Steele 50)

A. I wanted it to reflect that there was -- just because his research wasn't funded didn't mean that it was not quality.
(Steele 52)

Q. I'm sorry. Was Dr. Bernofsky's publications on free radical research on the cutting edge?
A. Yes. That may be why he couldn't get some of his research funded. Cutting edge is a risky business sometimes. A new idea takes a while to flow.
(Steele 52)

Throughout the time that Dr. Bernofsky was employed at Tulane, he requested that he be granted official tenure. According to the Board of Regents and the internal review of the Biochemistry Department prior to Dr. Karam's arrival, there existed vacant slots to be filled.

Dr. Li didn't get along with either Dr. Ehrlich or Dr. Bernofsky. Dr. Karam was aware of their conflicts and selected him in any event to review Dr. Bernofsky's work. Dr. Li wrote a letter in which he stated that he hoped for a long term solution of Dr. Ehrlich. When Dr. Li was asked whether he liked Dr. Bernofsky he replied "No comment." Dr. Steel who made the comment at his deposition "Jewlane" insisted that Dr. Bernofsky's evaluation state that Dr. Bernofsky's work was not competitive. He insisted on this harsh language even though he had not bothered to read Dr. Bernofsky's publications submitted to the committee for the review by Dr. Bernofsky.

An evaluation at any level, if based on discrimination, infects the ultimate decision. Roebuck, at 727. In Dr. Bernofsky's case, the review process was not insulated from the discriminatory biases of Dr. Karam who selected the members. Even a single person's biases may be relatively influential, especially where that person plays a significant role in the process. See Gutzwiller v. Fenik, 860 F.2d 1317, 1325-27 (6th Cir. 1988). (two biased faculty votes sufficient to establish discriminatory decision).

With respect to Dr. Bernofsky's, harassment and retaliation, denial of tenure, and discharge, Dr. Bernofsky reurges his previous argument but, instead of alleging a class based on age and race, submits that the arguments previously offered concerning these decisions should be examined separately, as racial discrimination on account of his being Jewish and separately as age discrimination.

V. Age Discrimination.

Dr. Bernofsky is 62 years of age.

As discussed above, he was qualified for the position of Research Professor.

Tulane refused to promote him and discharged him.

Dr. Bernofsky was replaced by Dr. Landry, whose work is similar. Alternatively, under the proposed revamping of the Biochemistry Department, there are no plans to continue having Research Professors.

Dr. Bernofsky realleges and reavers the arguments with respect to Dr. Bernofsky's, harassment and retaliation, denial of tenure, and discharge. Dr. Bernofsky reurges his previous argument but, instead of alleging a class based on age and race, submits that arguments previously offered should be examined separately, as age discrimination on account of his being 62 years of age.

Dr. Karam's letter stating his plans to accelerate departures from the Department shows that he treats age as a negative factor. This, coupled with his statements to Dr. Bernofsky an "old guy" who had been around for so long had "de facto" tenure, provides further evidence of his bias against older faculty members in general and Dr. Bernofsky in particular. Such remarks can create an inference of bias. Normand v. Research Institute of America, 927 F.2d 857, 862-65 (5th Cir. 1991) (finding statement by plaintiff's supervisor to plaintiff, discouraging him from returning to his former sales territory because he was an old person, supported verdict for the plaintiff).

A. . . . Because in order to attract a new chairman, you've got to have some openings so he can put young faculty in. That's the reason why Dr. Karam can ask for young people to come into the department and help educate graduate students and do research. (Stjernholm deposition page 123, attached as Exhibit R).

Q. Okay. And when did Fulginiti come in?
A. '89. April of '89. How well I know.

Q. Okay. Why do you say that, sir?
A. He wanted me fired. I was too old. I turned sixty-five in April. And he said, "Rune, better leave."

Q. Because of your age?
A. Yes. "I don't want you around."

Q. He told you that? I see.
A. Yes.

MR. BERNOFSKY:

Who said that?

THE WITNESS:

Fulginiti.  I pointed out that, as a professor, I can go to seventy. And it made him very furious.

BY MR. PHIPPS:

Q. Did he harass you?
A. You bet.

Q. He tried to get you to leave?
A. Yes.

Q. Take your job duties and responsibilities away from you?
A. No increases for five years. (Stjernholm deposition pages 113-114, attached as Exhibit S).

- - - - - - - -

Q. And in addition to that he was teaching twenty lectures according to you?
A. Yes.

Q. So he was really desperate?
A. Uh-huh (affirmative response). I was desperate for him.

Q. You were desperate for him, sir, but according to you, he had been awarded more than half a million in the last five years with a hundred and seventy-five thousand of indirect cost, which is the overhead, taken right off the top --
A. That's right.

Q. -- and given to the school.
A. Uh-huh (affirmative response).

Q. His grants weren't going to end until 1991, two years from that date?
A. Uh-huh (affirmative response).

Q. And he was teaching twenty lectures as a research professor.
A. Well --

Q. So how do you say that he was desperate?
A. No, I was desperate for him.

Q. Because you thought --
A. In an attempt to make --

Q. -- after you left, he'd be down the tubes?
A. Yes.

Q. That they'd run him off?
A. Who knows what would happen when I'm gone. (Stjernholm deposition pages 115-116, attached as Exhibit T).

- - - - - - - -

Q. And what are the circumstances that caused you to retire from Tulane?
A. Seventy years old. Get out of here. Straight forward. See, I fell in that crack where I had to retire at seventy. If I had been born later, I guess, then I wouldn't have had to retire.

Q. Why do you say that?
A. Because if you're -- there's no mandatory retirement age now. (Steel deposition at page 57, attached as Exhibit U).

Dr. Stjernholm testified that slots had to remain open in the Biochemistry Department for Dr. Karam to fill. Dr. Stjernholm himself was harassed because he did not retire as Tulane wished him to do. These facts, coupled with the letter stating Karam's desire to accelerate retirements in the Department and his age related comments, create an inference that age bias played a determinative factor in Tulane's refusal to grant Dr. Bernofsky tenure, his harassment and interference with his research program, and his subsequent discharge. Young faculty who were hired by Dr. Karam were provided approximately $135,000.00 each in funds with which to set up a laboratory. On the other hand, Dr. Bernofsky, along with several others, helped Dr. Karam obtain funds from the NSF for renovation funds, but received none of the funds for his own program. (See Exhibit Y).

VI. Retaliation

A claim for retaliation may be stated under 42 U.S.C. 1981 or the ADEA. Dr. Bernofsky realleges his retaliation claim under race and alternatively under age discrimination. The facts supporting the claim for retaliation were previously discussed in plaintiff's Memorandum in Opposition to Defendant's Motion For Summary Judgment at pages 19-26 and, for the sake of brevity, will not be repeated here. However, Dr. Bernofsky reurges all of the arguments previously offered as if fully set forth herein under either of these bases.

VII. Discriminatory Discharge.

A claim for discriminatory discharge may be stated under 42 U.S.C. 1981 or the ADEA. Dr. Bernofsky realleges his discriminatory discharge claim under race and alternatively under age discrimination. The facts and arguments previously offered supporting the claim for discriminatory discharge were previously discussed in plaintiff's Memorandum in Opposition to Defendant's Motion For Summary Judgment at pages 26-38 and, for the sake of brevity, will not be repeated here. However, Dr. Bernofsky reurges all of the arguments previously offered under either of these bases.

VIII. State Based Claims.

Dr. Bernofsky reurges all of the state claims previously discussed in plaintiff's Memorandum in Opposition to Defendant's Motion For Summary Judgment at pages 38-56 and, for the sake of brevity, will not be repeated here.

IX. 2315.3

Dr. Bernofsky has previously testified in his deposition about a flooding incident involving blood, animal hair, and chemicals.

Tulane took no meaningful action to correct the environmental and health hazard associated with the flooding. Dr. Bernofsky had to clean the wastes from his laboratory equipment. The issue of flooding of waste matter from laboratories located on the floor above Dr. Bernofsky's laboratories was a problem requiring action by Tulane's administration.

Dr. Ehrlich's experiences are similar to Dr. Bernofsky's experiences and further substantiate Dr. Bernofsky's claim that Tulane, rather than make a real effort to correct environmental problems affecting them, preferred to get rid of them.

Q. Have you ever had any environmental problems in your lab?
A. Yes. There was the issue of a foul smell from the lab adjacent to my office, which is Dr. Karam's lab. And when I complained to the front office about it, the then office manager, Rosemary Taylor, I got no response despite multiple times telling her that -- several times telling her about the problem and that I was concerned about the smell and that it was forcing -- I didn't know what the fumes were due to. And I'd asked someone in Dr. Karam's lab, and they didn't give me any help in this regard. And I had to open my door -- no, I had to leave my office -- because I often have my door open. I had to leave my office because of the smell. And I spent most of my time at work in my office, because I have so much paperwork to do, when paper writing, and I talk to my students mostly in my office. So it was a concern to me. And my husband is an organic chemist, and he was very alarmed, because he's an organic chemist, about what kind of fumes I might be subject to. And this matter was -- there was no action taken on this matter, even though Dr. Karam knew about the problem, because he was there when I talked to his office manager about it, at least on one occasion. And there was no action taken until I wrote a letter to the Environmental Safety Department, and then they pretended that they responded right away, which they didn't at all. Oh, and then, the other thing is, Dr. Karam, when the Environmental -- when the Environmental Safety Department became involved, they told Dr. Karam that -- they had somebody come up and look at this, and they told Dr. Karam that there was a problem in the duct work, which had been established -- the duct work had been changed when Dr. Karam's lab was renovated. And they told him that he needed to get the duct work changed back in a different way because it was blowing fumes from the hood that was -- I believe it was the hood, but definitely the lab, that's next to my office. And the problem that made me have to write a letter beyond Dr. Karam -- I think it was to the Environmental Safety people, again, was that Dr. Karam was stalling on signing the requisition to pay for the duct work to be repaired.

Q. And that happened right after he got here?
A. Quite soon after he got here. It was within the first year, I believe.

Q. And then you've been retaliated since then? Has he retaliated against you for complaining about this?
A. Well, there are so many things that I have, that are examples of his harassment of me, that he's objecting to my complaining about, in my grievance proceedings. But he's certainly retaliating against me now, in terms of this grievance proceedings because things are yet worse for me in coping in the department. In fact, at times, my husband and I worry about my mental health about this, to tell you the truth. I can't move easily because my husband has a job here in the city, which is a secure job, and he's not as mobile as I am. (Ehrlich, Deposition pages 61-63, attached as Exhibit V).


CONCLUSION

Tulane has failed to meet its heavy burden on a motion for summary judgment, particularly in this case involving questions of fact concerning intentional conduct, state of mind, and credibility. Dr. Bernofsky has shown that questions of fact exist for resolution by the jury, including issues concerning pretext, a practice and pattern of discrimination on the basis of age, race, willfulness, and validity of the alleged business reasons for Tulane's actions.

Dr. Bernofsky is a dedicated scientist and researcher. His work is recognized as significant by leaders in his field. Through Tulane's actions his research program painstakingly built at Tulane over 19 years has been destroyed.

Dr. Bernofsky has alleged facts sufficient for a reasonable jury to conclude that Tulane impermissibly based its decision on race and/or age. Drawing all inferences in favor of the plaintiff as the opponent of the motion for summary judgment, summary judgment is inappropriate, and Tulane's motion must be denied.
 

Respectfully submitted,
 

_______________________

Roger D. Phipps #20326
PHIPPS & PHIPPS

ATTORNEYS AT LAW

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

1. Hitler's Willing Executioners, D.J. Goldhagen, Knopf, 1996.

2. There is a well-known "documentary" film entitled "The Eternal Jew." The 45-minute film likens Jews to rats and other vermin.

3. Saint Francis College v. Al-Khazraji, 481 U.S. 604 (1987) and Shaare Tefila Congregation v. Cobb., 481 615 provide that the Jewish/Hebrew race is a protected race.

4. Among the documents examined were: Charity Hospital Billing Reports 1988-1995; Grant logs; Tou - Payroll Action Forms; Tabulations of wages and fringes, equipment and supplies; Payrolls for Dr. Bernofsky's laboratory; Tulane's Accounting Systems Reports for Funded Grants; Dr. Bernofsky's CV.
 
 
 

CERTIFICATE

I certify that a copy of the above and forgoing has this day, July 1, 1996, been forwarded to counsel of record by HAND DELIVERY, i.e.,:
 

G. Phillip Shuler, III
Chaffe McCall Phillips Toler & Sarpy
2300 Energy Centre
New Orleans, LA 70163
 

________________________
Roger D. Phipps
 

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