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

Petition for Writ of Certiorari
(View as PDF)
 
(Case No. 01-249, U.S. Supreme Court, August 9, 2001)
 
 
IN THE
SUPREME COURT OF THE UNITED STATES
_______________________________________
 
Case No. 01-249
_______________________________________
 
DR. CARL BERNOFSKY,
Petitioner,
 
v.
 
ADMINISTRATORS OF THE TULANE EDUCATIONAL FUND,
Respondent.
_________________________________________
 
CIVIL APPEAL TO THE
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_________________________________________
 
Petition for Writ of Certiorari
_________________________________________
 
Victor R. Farrugia  #19324
Catherine C. Cooper  #26153
VICTOR R. FARRUGIA, A PLC
228 St. Charles Avenue
Suite 1028
New Orleans, LA 70130-2659
(504) 525-0250
 
Counsel for Petitioner

 
QUESTIONS PRESENTED FOR REVIEW
  1. Whether the district court judge was required to recuse herself after she accepted, in the midst of litigation against Tulane University, a Tulane Law School summer teaching assignment in Greece with a stipend of $5,500.00.

  2. Whether a negative reference letter by an ex-employer is an adverse employment action in a claim for retaliation under Title VII of the Civil Rights Act of 1964.

 
(Page numbers refer to original document pages and here are hyperlinked to the appropriate reference.)
 
TABLE OF CONTENTS
Page
Questions Presented i
Table of Contents ii
Table of Authorities iv
Cases
iv
Statutes
vi
Treatise
vi
Opinions Below v
Jurisdiction vi
Statutes Involved vii
Statement of the Case 1
Reasons for Granting Writ of Certiorari 6
  1. Introduction
6
  1. Standard of Review for Summary Judgment
7
  1. The district court judge abused her discretion in not recusing herself after she accepted a Tulane law school summer teaching assignment in Greece with a stipend of $5,500.00 on the eve of her decision to grant summary judgment in favor of Tulane.
7
  1. The district court erred in concluding that under Mattern v. Eastman Kodak Company, 104 F.3d 708 (5th Cir. 1997), the negative reference letter is not an adverse employment action in a claim for retaliation under Title VII of the Civil Rights Act of 1964.
12
Conclusion 21
(Ed. Note: Items not hyperlinked are currently not available.)
Appendix A
Judgment of the United States District Court for the Eastern District of Louisiana,
Entered 4/18/00
A-1
Appendix B
Order and Reasons of the United States District Court for the Eastern District of Louisiana,
Entered 4/18/00
A-2
Appendix C
Order and Reasons of the United States District Court for the Eastern District of Louisiana,
Entered 5/31/00
A-25
Appendix D
Per Curiam opinion of the United States Court of Appeals for the Fifth Circuit, affirming district court judgment, with dissent by Chief Judge King,
Entered 4/10/01
A-30
Appendix E
Per Curiam opinion of the United States Court of Appeals for the Fifth Circuit, denying Petition for Panel Rehearing and Petition for Rehearing En Banc,
Entered 5/14/01
A-32
Appendix F
Letter from Dr. Wolinsky to Dr. Stjernholm requesting a letter of reference,
Dated 2/7/97
A-34
Appendix G
Letter from Dr. Bernofsky to Judge Berrigan requesting that she recuse herself,
Dated 4/4/00
A-35



TABLE OF AUTHORITIES
Case Page
Berry v. Stevinson Chevrolet, 74 F.3d 980, 986 (10th Cir. 1996) 16
Charlton v. Paramus Bd. of Educ., 25 F.3d 194, 198-200 (3rd Cir. 1994), cert. denied, 513 U.S. 1022, 115 S.Ct. 590, 130 L.Ed.2d 503 (1994) 14
Corneveaux v. CUNA Mutual Ins. Group, 76 F.3d 1498, 1507 (10th Cir. 1996) 16
EEOC v. LB Foster Company, 123 F.3d 746, 754, n4 (3rd Cir. 1997) 14
Hashimoto v. Dalton, 118 F.3d 671 (9th Cir. 1997), certiorari denied, 118 S.Ct. 1803, 523 U.S. 1122, 140 L.Ed.2d 943 17, 19
Knox v. Indiana, 93 F.3d 1327, 1334 (7th Cir. 1996) 16
Ledergerber v. Stangler, 122 F.3d 1142, 1144 (8th Cir. 1997) 13
Levitt v. University of Texas at El Paso, et al., 847 F.2d 221 (5th Cir. 1988) 10
Liteky v. U.S., 510 U.S. 540 (1994) at 548, 114 S.Ct. 1147, 127 L.Ed.2d 474 10
Mattern v. Eastman Kodak Company, 104 F.3d 708 (5th Cir. 1997) 12, 18
Meritor Savings Bank v. Vinson, 477 U.S. 57, 65, 91 L.Ed. 2d 49, 106 S.Ct. 2399 (1986) 17
Pantchenko v. C. B. Dolge Company, Inc., 581 F.2d 1052 (2nd Cir. 1978) 15
Passer v. American Chemical Soc., 935 F.2d 322, 330-331 (D.C. Cir. 1991) 16
Reeves v. Sanderson Plumbing Products, Inc., 120 S.Ct. 2097, 68 USLW 4480, (U.S., Jun 12, 2000) 6, 7, 20
Rhodes v. Guiberson Oil Tools, 75 F.3d 959 (5th Cir. 1996) 7
Robinson v. City of Pittsburgh, 120 F.3d 1286, 1300 (3rd Cir. 1997) 14
Robinson v. Shell Oil Co., 519 U.S. 337 (1997) 20
Rubinstein v. The Administrators of the Tulane Educational Fund, Case Nos. 00-789 and 00-996 (5th Cir. 2000) 6, 8
Rutherford v. American Bank of Commerce, 565 F.2d 1162 (10th Cir. 1977) 16
Smith v. St. Louis University, 109 F.3d 1261, at 1266 (8th Cir. 1997) 13
Torres v. Pisano, 116 F.3d 625, 640 (2nd Cir. 1997) 15
United States v. Jordan, 49 F.3d 152, 156 (5th Cir. 1995) 21
Wideman v. Wal-Mart Stores, Inc., 141 F.3d 1453, 1456 (11th Cir. 1998) 16
Wyatt v. City of Boston, 35 F.3d 13, 15-16 (1st Cir. 1994) 16
Statutes
28 U.S.C. §455(a) 10
Code of Conduct for United States Judges, §3.4-3(a) 10
Treatise
EEOC Compliance Manual, Section 8, "Retaliation," Para. 8-II(D3) (1998) 17



OPINIONS BELOW

The Per Curiam opinion whose review is sought is reproduced in the Appendix at A-30. The District Court opinions are reproduced in the Appendix at A-2 and A-25, respectively.

JURISDICTION

Jurisdiction is proper in this Court. The judgment sought to be reviewed was entered by the U.S. District Court for the Eastern District of Louisiana on April 18, 2000. Subsequently, on May 31, 2000, the trial judge denied a Motion for New Trial and Motion for Recusal. Judgment was rendered after the trial judge accepted a teaching position with a $5,500.00 stipend from the defendant without recusing herself from the case.

The Fifth Circuit Court of Appeals affirmed the district court judgment with a Per Curiam decision entered on April 10, 2001. Dr. Bernofsky filed a Petition for Rehearing En Banc, which was denied on May 14, 2001. The petition was also considered as a Petition for Panel Rehearing, which was similarly denied on May 14, 2001.

The present Petition for Writ of Certiorari is filed within 90 days of the denial of Petition for Panel Rehearing by the Fifth Circuit and is timely pursuant to 28 U.S.C. §§1257 and 2101(c) and Rule 10(1)(c) of the Rules for the U.S. Supreme Court.

STATUTES INVOLVED

28 U.S.C. §455(a) in pertinent part provides:

A justice, judge, or magistrate of the United States is required to recuse himself  "in any proceeding in which his impartiality might reasonably be questioned."

The Code of Conduct for United States Judges, §3.4-3(a) states:

A judge who teaches at a law school should recuse from all cases involving that educational institution as a party. The judge should recuse (or remit) from cases involving the university, as well as those involving the law school, where the judge's impartiality might reasonably be questioned in view of the size and cohesiveness of the university, the degree of independence of the law school, the nature of the case and related factors. Similar factors govern recusal of judges serving on a university advisory board.


SUPREME COURT OF THE UNITED STATES
October Term, 2001
____________________

DR. CARL BERNOFSKY
Petitioner

v.

ADMINISTRATORS OF THE TULANE EDUCATIONAL FUND
Respondent
______________________________________________

CIVIL APPEAL TO THE
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________________________________________

Petitioner, Dr. Carl Bernofsky, respectfully prays that a Writ of Certiorari be granted to review the decision of the United States District Court for the Eastern District of Louisiana granting Motion for Summary Judgment in favor of the respondent and the affirmation of same by the United States Court of Appeals for the Fifth Circuit.

STATEMENT OF THE CASE

Dr. Bernofsky was a research professor at Tulane University for approximately 20 years. Dr. Bernofsky is Jewish and was fired from his position after Dr. Karam, of Lebanese descent, became his supervisor. Dr. Bernofsky sued Tulane for discrimination based upon race and religion. Dr. Bernofsky was denied a jury trial by the district court judge in his case of discriminatory termination of his employment. In 1997, the district court judge granted summary judgment in favor of Tulane. The U.S. Court of Appeals, Fifth Circuit, affirmed the decision, and the U.S. Supreme Court denied a petition for certiorari in 1998.

After overcoming some serious health problems that developed at about the time Tulane fired him, Dr. Bernofsky attempted to return to the work force in early 1997. He mailed out over 50 employment inquiries and obtained preliminary interest for his services from the University of Houston and Michigan Technological University.

The University of Houston and Michigan Technological University submitted inquiries to three of Bernofsky's colleagues at Tulane, requesting information about his work performance and other issues that would be of importance in helping these potential employers reach a decision about finding a position for Bernofsky at those institutions. These particular colleagues were selected because, in Dr. Bernofsky's twenty years at Tulane, he mostly worked under Drs. Stjernholm, Steele, and Karam. In fact, Dr. Stjernholm had provided positive reference letters for Dr. Bernofsky in the past. The request from the University of Houston stated, in pertinent part:

Dr. Carl Bernofsky, formerly of your department, has inquired here about the possibility of an academic position. His training, experience and specialties do have interest for us. Before investigating possibilities with Dr. Bernofsky, I would like to get an evaluation from you as to his performance in research, teaching and departmental citizenship as a faculty member in your department.

(Letter from Dr. Wolinsky to Dr. Stjernholm, Feb. 7, 1997.  See A-34.)

Instead of sending their responses, Drs. Stjernholm, Steele, and Karam were instructed not to respond by Tulane's counsel, Mr. John Beal, who took it upon himself to respond in their place. The letter, dated Feb. 21, 1997 from Mr. Beal to Dr. Wolinsky of the University of Houston stated as follows:

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

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

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

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

This letter was not responsive to the request for comment on Dr. Bernofsky's performance. Instead, Mr. Beal volunteered the information about Dr. Bernofsky's lawsuit against Tulane and also incorrectly stated that Bernofsky sued Dr. Karam personally. Dr. Karam is the Chairman of the Biochemistry Department where Bernofsky worked. Beal admitted in his deposition that Dr. Karam was not sued personally.

The letter also falsely stated that Bernofsky no longer had any research funds. Bernofsky's grant funding was actually promising at the time of his separation, and his grant funding throughout his 20 year career at Tulane indicated a steady upward trend despite cyclic variations that are common to grant funding. The chart below illustrates Bernofsky's grant funding while at Tulane.

Bernofsky's Grant Funding

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

In February, 1999, before Tulane offered Judge Berrigan the teaching assignment in Greece, Chief Judge King dismissed a judicial misconduct complaint filed by Dr. Bernofsky, which alleged that Judge Berrigan should have recused herself based on her ongoing adjunct professorship at Tulane Law School and her prior service on the Board of Directors of Tulane's Amistad Research Center. Bernofsky appealed that complaint to the U.S. Supreme Court as Case No. 99-372, which was denied.

Bernofsky filed the case presently before this Court because Tulane gave him a negative reference letter when he applied for work at the University of Houston and because Tulane did not respond at all to a reference inquiry from Michigan Technical University.

Judge Berrigan learned in November, 1999, that she was being awarded a teaching assignment in Greece for the summer of 2000. The three-week assignment included a stipend of $5,500.00. She did not disclose this fact to Dr. Bernofsky or his counsel of record. This non-disclosure was particularly egregious because Dr. Bernofsky had tried to get Judge Berrigan to recuse herself on several prior occasions.

Dr. Bernofsky learned of Judge Berrigan's teaching assignment in Greece in April, 2000 and immediately wrote her a letter asking for her recusal. See A-35. Judge Berrigan did not respond to that letter. However, two weeks after Bernofsky's request for recusal, Judge Berrigan issued her ruling on the merits of the case, granting summary judgment in favor of Tulane and dismissing all of Dr. Bernofsky's claims. See A-1 and A-2.

The Per Curiam decision of the Fifth Circuit affirmed the actions of the district court judge. However, the dissent by Chief Judge Carolyn Dineen King stated that the district court judge should have recused herself, and that the Chief Judge would reverse the judgment and remand with instructions to send the case to another judge. See A-31.

Despite the Chief Judge's dissent, the Fifth Circuit denied a Petition for Rehearing En Banc. See A-32.

Unbeknownst to Dr. Bernofsky and his counsel at the time of oral argument on April 3, 2001, Justice Scalia had recused himself from consideration of a petition for certiorari in the case of Asher Rubinstein v. The Administrators of the Tulane Educational Fund, Case Nos. 00-789 and 00-996, which involved the same defendant as the case at bar. Justice Scalia participated in the Tulane Summer School Abroad program four times and is scheduled to go to Greece during the summer of 2001 in the same type of position that Judge Berrigan held in 2000. Although both Justice Scalia and Judge Berrigan taught in the same Tulane Law School summer program in Greece, Justice Scalia recused himself from participating in the Rubinstein case with Tulane as a party, whereas Judge Berrigan would not recuse herself from the case at bar.

REASONS FOR GRANTING WRIT OF CERTIORARI

MAY IT PLEASE THE COURT:

I.  Introduction

Petitioner submits the following in support of his writ of certiorari to review the decision of the Fifth Circuit Court of Appeals affirming the District Court, Eastern District of Louisiana, granting respondent's Motion for Summary Judgment.

In granting summary judgment, the lower court departed from the accepted standard of review set by this Court in Reeves v. Sanderson Plumbing Products, Inc., 120 S.Ct. 2097, 68 USLW 4480, (U.S., Jun 12, 2000). This departure was sanctioned by the Fifth Circuit Court of Appeals. In addition, the trial judge failed to recuse herself from the case after the defendant gave her a "plum" assignment in Greece with a stipend of $5,500.00.

Further, the decision of the Fifth Circuit Court of Appeals conflicts with the decisions of the Third and Ninth Circuit Courts of Appeals on the issue of whether a negative job reference by an ex-employer is an adverse employment action in a retaliation claim under Title VII. For these reasons, the petition for writ of certiorari should be granted.

II.  Standard of Review for Summary Judgment

In reviewing summary judgment, the court must view the evidence presented in light most favorable to the party opposing the motion. Rhodes v. Guiberson Oil Tools, 75 F.3d 959 (5th Cir. 1996). In the recent case of Reeves v. Sanderson Plumbing Products, Inc., the unanimous U.S. Supreme Court reaffirmed that "the standard for granting summary judgment 'mirrors' the standard for judgment as a matter of law, such that the inquiry under each is the same."  Reeves, at 2110.  This Honorable Court held that, although all of the evidence should be reviewed by the court, not all evidence should be given weight. The court "must disregard all evidence favorable to the moving party that the jury is not required to believe. See Wright & Miller, at 299. That is, the court should give credence to the evidence favoring the nonmovant as well as that 'evidence supporting the moving party that is uncontradicted and unimpeached, at least to the extent that evidence comes from disinterested witnesses.' "  Reeves, at 2110.  In the present case, a jury question is present because the petitioner presented evidence that, when taken as a whole, created a fact issue as to whether the negative reference letter was retaliatory and/or defamatory.

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

Chief Judge King in her dissent stated that a reasonable person would view the summer teaching assignment in Greece as "something of a plum." The position itself is one of prestige. The following Justices of the U.S. Supreme Court have taught at the Tulane Law School Summer School Abroad program:

Justice Antonin Scalia - 1987, 1991, 1997, 2001; Justice Harry Blackmun - 1992; Chief Justice William Rehnquist - 1995, 1997; Justice Ruth Bader Ginsburg - 1999; and Justice Stephen Breyer.

To state the obvious, there is prestige in being asked to participate in a program whose past participants included five Justices of the U.S. Supreme Court. Chief Justice Rehnquist and Justice Scalia participated in the program more than once.

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

JUDGE REAVLEY:

Would they all be recused if Cert is applied for?

MR. FARRUGIA:

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

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

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

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

MR. SHULER:

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

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

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

Clearly, Judge Berrigan, who is in a similar position as Justice Scalia with respect to the receipt of funds from Tulane to teach abroad, should have recused herself from these proceedings involving Tulane. The federal law recusal statute is mandatory, not optional. The Fifth Circuit has set the standards for recusal in the case of Levitt v. University of Texas at El Paso, et al., 847 F.2d 221 (5th Cir. 1988):

Under 28 U.S.C. §455(a), a justice, judge, or magistrate of the United States is required to recuse himself in any proceeding in which his impartiality might reasonably be questioned.

Because 28 U.S.C. Section 455(a) focuses on the appearance of impartiality, as opposed to the existence in fact of any bias or prejudice, a judge faced with a potential ground for disqualification ought to consider how his participation in a given case looks to the average person on the street.

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

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

The second reason that Judge Berrigan should have recused herself is that the Code of Conduct for United States Judges mandates recusal for any judge who teaches at a law school. Section 3.4-3(a) of the Code provides:

A judge who teaches at a law school should recuse from all cases involving that educational institution as a party. The judge should recuse (or remit) from cases involving the university, as well as those involving the law school, where the judge's impartiality might reasonably be questioned in view of the size and cohesiveness of the university, the degree of independence of the law school, the nature of the case and related factors. Similar factors govern recusal of judges serving on a university advisory board.

Judge Berrigan states in her opinion that this rule does not provide clear guidance. See A-28. She argues that the first sentence does not distinguish between a paid and unpaid teaching position. However, that distinction became irrelevant when Tulane paid Judge Berrigan a stipend of $5,500.00.

At oral argument, Chief Judge King asked both counsel for Dr. Bernofsky and counsel for Tulane for information on the relationship of Tulane's Law School to Tulane University:

. . .[W]hat do we know from this record
about the size and cohesiveness of Tulane University,
the degree of independence of the law school.
What do we know about that on this record?

Chief Judge King in her dissent stated that, since there is no evidence of attenuation in the relationship between the Fund (Tulane University) and the Law School, she would conclude that a reasonable person might question Judge Berrigan's impartiality. See A-31. The burden of producing evidence of attenuation in that relationship, if any, would be upon Tulane and not Dr. Bernofsky.

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

Chief Judge King concluded her dissent by stating that she would reverse the judgment and remand with instructions to send the case to another judge. See A-31.

IV.  The district court erred in concluding that under Mattern v. Eastman Kodak Company, 104 F.3d 708 (5th Cir. 1997), the negative reference letter is not an adverse employment action in a claim for retaliation under Title VII of the Civil Rights Act of 1964.

The district court held that a negative reference letter is not an adverse employment action. See A-10 to A-13. The district court went on to state that the adverse employment action was the failure of the prospective employer to hire Bernofsky. Because of this position, the district court concluded that Bernofsky offered no proof that the negative letter of reference to the University of Houston and the non-response to Michigan Technological University were determinative factors in his not being hired by those institutions. Although this is not true, and although Bernofsky did offer evidence that he would have made the short list of candidates at the University of Houston but for the negative reference letter, this entire line of inquiry is misplaced.

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

The district court invited the Fifth Circuit to revisit its minority position on what constitutes an adverse employment action stated in Mattern v. Eastman Kodak Company, 104 F.3d 708 (5th Cir. 1997). See A-12. Using the restrictive language in Mattern, the district court concluded that a negative reference letter was not an adverse employment action.

There is a clear split in the Circuit Courts of Appeal on the issue of what constitutes an adverse employment action in a retaliation case under Title VII.

Only one other circuit has adopted the most restrictive test along with the Fifth Circuit. The Eighth Circuit also holds that only "ultimate employment actions" such as hiring, firing, promoting and demoting constitute actionable adverse employment actions. Ledergerber v. Stangler, 122 F.3d 1142, 1144 (8th Cir. 1997) (transfer involving only minor changes in working conditions and no reduction in pay or benefits is not an adverse employment action).

However, even the Eighth Circuit, in the case of Smith v. St. Louis University, 109 F.3d 1261, at 1266 (8th Cir. 1997), has held that negative references are adverse employment actions. "We think that actions short of termination may constitute adverse actions within the meaning of the statute." citing Charlton v. Paramus Bd. of Educ., 25 F.3d 194, 200 (3rd Cir.) ("Post-employment blacklisting is sometimes more damaging than on-the-job discrimination . . ."), cert. denied, 513 U.S. 1022, 130 L.Ed. 2d 503, 115 S.Ct. 590 (1994). The Eighth Circuit held that, if the ex-employer provided negative references to the plaintiff's potential employers, and if the plaintiff demonstrates that the ex-employer did so because the plaintiff had complained about that employer's harassment, then a jury could reasonably conclude that the university was liable under Title VII for retaliation.

The fact that the Eighth Circuit, which has the same strict view as the Fifth Circuit of what constitutes an adverse employment action, held that a negative reference by an ex-employer is an adverse employment action, indicates that the district court was in error in its ruling, and that the Fifth Circuit now stands alone in the Circuit Courts of Appeal in sanctioning this opinion.

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

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

Charlton, 25 F.3d at 200. The Third Circuit in Charlton also held that the retaliation provision includes former employees as long as the alleged discrimination is related to or arises out of the employment relationship.

In the case of EEOC v. LB Foster Company, 123 F.3d 746, 754, n4 (3rd Cir. 1997), the Third Circuit held that the adverse employment action was the negative reference of the ex-employer and not the non-hiring by the prospective employer:

The district court improperly focused on the action of the prospective employer and not L.B. Foster in determining whether the EEOC had presented evidence of an adverse employment action. The district court concluded that [t]here is no evidence that Foster's response to the telephone call from Johnston Pump negatively influenced Wilson's application for employment with Johnston Pump.' App. at 588. However, that is not the proper test. All that is required to establish a prima facie case of retaliatory discrimination is proof (1) that the plaintiff engaged in protected activity, (2) that the employer took an adverse action against her, and (3) that a causal link exists between the protected activity and the employer's adverse action. Kachmar v. SunGard Data Sys., Inc., 109 F.3d 173 (3rd Cir. 1997). An employer who retaliates can not escape liability merely because the retaliation falls short of its intended result.
LB Foster, at 754.

Therefore, even under the Third Circuit's intermediate position on what constitutes an adverse employment action, the Third Circuit has held that a negative job reference by an ex-employer is an adverse employment action.

In Torres v. Pisano, 116 F.3d 625, 640 (2nd Cir. 1997), the Second Circuit held that, to show an adverse employment action, an employee must demonstrate "a materially adverse change in the terms and conditions of employment." Along with the Third Circuit's intermediate position on what constitutes an adverse employment action, the Second Circuit also held that if an employer refused to provide a former employee with post-employment reference letters in retaliation for the employee's filing of charges with the Commission, that would violate 42 U.S.C.A. Section 2000e-3 (Title VII's anti-retaliation statute). Pantchenko v. C. B. Dolge Company, Inc., 581 F.2d 1052 (2nd Cir. 1978). Again, the emphasis here is on the retaliatory action by the former employer and not whether or not his failure to provide letters of reference actually caused the employee not to be hired by a prospective employer.

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

The Ninth Circuit has held that the Navy's retaliatory dissemination of negative employment reference violated Title VII, even if the negative reference did not affect the Army's subsequent decision not to hire Ms. Hashimoto, who had earlier claimed discriminatory action by the Navy. Hashimoto v. Dalton, 118 F.3d 671 (9th Cir. 1997), certiorari denied, 118 S.Ct. 1803, 523 U.S. 1122, 140 L.Ed.2d 943.

In Hashimoto, an Asian-American woman alleged that the Department of Navy gave her a negative job reference in retaliation for filing an EEOC complaint. The Ninth Circuit recognized that, unlike most cases alleging retaliation where the retaliatory conduct takes the form of discharge, demotion, failure to promote, or the like, a retaliatory negative job reference does not itself inflict tangible employment harm because it requires a prospective employer's subsequent, adverse action in response to the reference to create the employment harm. Id.

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

The EEOC has interpreted "adverse employment action" to mean "any adverse treatment that is based on a retaliatory motive and is reasonably likely to deter the charging party or others from engaging in protected activity." EEOC Compliance Manual, Section 8, "Retaliation," Para. 8-II(D3) (1998). Although EEOC Guidelines are not binding on the courts, they "constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance." Meritor Savings Bank v. Vinson, 477 U.S. 57, 65, 91 L.Ed. 2d 49, 106 S.Ct. 2399 (1986) (quoting Skidmore v. Swift & Co., 323 U.S. 134, 140, 89 L.Ed. 124, 65 S.Ct. 161 (1944)).

The EEOC test covers lateral transfers, changes in work schedules, and unfavorable job references. These actions are all reasonably likely to deter employees from engaging in protected activity. The EEOC test is consistent with the holdings in the First, Seventh, Ninth, Tenth, Eleventh and D.C. Circuits.

This Honorable Court should decide what constitutes an adverse employment action in a retaliation case because the split in the circuit courts leads to different results in retaliation cases under Title VII.

Although Mattern does not discuss the issue of whether a negative reference letter is an adverse employment action, the district court ruling that a negative reference letter is not an adverse employment action is contrary to decisions in the Third and Ninth Circuits. Mattern only discusses pre-termination events such as disciplinary filings and reprimands when it gives examples of employment actions that it considers not to be adverse employment actions. The Fifth Circuit states that these lesser employment actions may jeopardize employment in the future. Mattern, at 708. The implication in this language is that if these employment actions lead to the ultimate employment decision of termination, then the employee will have an actionable adverse employment action.

However, Bernofsky had been terminated long before the negative reference letter was written. The holding by the district court that, under Mattern, a negative reference letter is not an adverse employment action, is inconsistent with the language of Mattern, inconsistent with case law, and results in the untenable conclusion that there is no remedy for retaliation by an employer after the employee leaves his employment unless the ex-employee can prove that he was not hired by a subsequent employer because of the negative reference. This is an unreasonable burden because with a negative reference, a prospective employee will not get an interview for a job and, without being interviewed, proof of the reason for not being hired is nearly impossible.

The Fifth Circuit's Per Curiam decision sidestepped the issue of whether the negative reference letter is an adverse employment action by stating, "even if Tulane's responses to the requests for reference be considered as adverse employment actions, there was no error of any significance and Bernofsky presents no evidence of improper motive or defamation." See A-30 and A-31.

However, Dr. Bernofsky did present evidence of improper motive and defamation. The improper motive of Mr. Beal, attorney and agent for Tulane, is evident in his letter which volunteered the information that Dr. Bernofsky sued Tulane. This is exactly what the Navy was ordered by the Ninth Circuit in Hashimoto to stop doing, namely notifying prospective employers of former employees' participation in protected activity. The reference request did not ask for reasons for termination, but rather just for an evaluation of past performance. The defamatory intent of the letter is obvious when Beal falsely states that Bernofsky had no research funds at a time when he had an Air Force grant of a quarter million dollars.

Other evidence of Mr. Beal's illegal motive is his statement that the letter of reference is being sent by him because of Bernofsky's pending discrimination litigation.

Mr. Beal's defamation and illegal motive is also apparent from the deposition testimony of Dr. Stjernholm, who stated that, if Beal had not taken over the task of responding to Dr. Wolinsky, he would have written a positive letter of reference for Bernofsky. Stjernholm further testified that, if he received a letter of reference stating that a candidate had sued the department chair personally, it would be "a red flag," and he would "immediately throw out" that application for employment.

Further evidence of defamation and illegal motive, ignored by the Fifth Circuit in contradiction of this Court's holding in Reeves v. Sanderson Plumbing Products, Inc., is the deposition testimony of Dr. Wolinsky, who was attempting to locate a position for Dr. Bernofsky at the University of Houston. Wolinsky testified that the statement in Beal's letter that Bernofsky had sued his previous chair was the "kiss of death" for any of his efforts to help him find work. Similarly, Dr. Thomas Dalton stated, in his expert witness report, that Beal's letter would be "a death knell" to any application for employment at an academic institution.

At the summary judgment stage, the above evidence should have been viewed in the light most favorable to Dr. Bernofsky. The Fifth Circuit ignored this principle.

In the case of Robinson v. Shell Oil Co., 519 U.S. 337 (1997), this Honorable Court reversed a Fourth Circuit decision and held that a former employee does have the protection of Title VII's anti-retaliation provisions. In that case, while an EEOC charge was pending, the ex-employee applied for a job with another company that contacted his former employer for an employment reference.

Claiming that his former employer gave him a negative reference in retaliation for his having filed the EEOC charge, the ex-employee filed suit under §704(a) of Title VII, which makes it unlawful "for an employer to discriminate against any of his employees or applicants for employment" who have availed themselves of Title VII's protections. In deciding the Robinson case, this Court allowed a cause of action for a negative job reference by a former employer who gave the negative reference in retaliation for an ex-employee exercising his rights under Title VII.

This Honorable Court in Robinson did not require the ex-employee to prove that he was not hired because of the negative reference. The Fifth Circuit should not be exempted from that standard.

CONCLUSION

Viewing all evidence in light most favorable to the petitioner, which is the standard that is applicable to the review of summary judgment, questions of material fact exist with regard to whether the negative reference letter was retaliatory and/or defamatory. In addition, the district court did not recuse itself under circumstances in which a reasonable person might question the impartiality of the district court judge. Fundamental to the litigant is the right to a fair and impartial trial. Fundamental to the judiciary is the public's confidence in the impartiality of our judges and the proceedings over which they preside. U.S. v. Jordan, 49 F.3d 152, 156 (5th Cir. 1995). Public confidence in the impartiality of our judges will be shattered if this Court does not reverse the judgment and remand this case to a judge who appears to be impartial.

Of further significance for purposes of this writ application is the split in the circuits over whether a negative reference letter by a previous employer is an adverse employment action in a retaliation claim under Title VII. On this issue, there is a clear and distinct conflict between the holding of the Third and Ninth Circuit Courts of Appeal and the opinion of the district court, which was upheld by the Fifth Circuit in the present case. Resolution of this important conflict merits the attention of this Court.

The petitioner, therefore, urges this Honorable Court to grant a writ of certiorari to correct the error of the lower court and to resolve the conflict of law that exists in the circuit courts.

Respectfully submitted,

s/     Victor R. Farrugia       

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

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