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1995 Lawsuit
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1998 Lawsuit
The Judges
 

"Do not underestimate the determination of a quiet man."

-- British aphorism
Background
Carl Bernofsky, 1998

Dr. Carl Bernofsky was employed by Tulane University School of Medicine for nearly 20 years and held the rank of Research Professor in the Department of Biochemistry.  In November, 1991 a new chairman took over the department.  He targeted the three senior Jewish professors for replacement and embarked on a program of harassment, intimidation and interference until they were all ousted, each according to his or her own circumstances.  Research progress was obstructed, coworkers were driven off, and the targeted faculty were relieved of their teaching duties, committee assignments, and laboratory space.

Of the three Jewish professors, the eldest, who was also the least likely to resist, was offered an early retirement package.  Although unhappy about being forced out, he used the opportunity to escape the oppressive conditions in the department.  His was the first such early retirement at the Medical School.

Concurrent with these events were lawsuits by two other Jewish professors in another department who independently charged Tulane with discrimination.  What is remarkable about these lawsuits is that only a tiny fraction of Tulane's professorate is Jewish.

Bernofsky was terminated following a sham evaluation that was conducted with total disregard of due process procedures and despite the fact that he had just received a new $250,000 grant from the Air Force to continue his research program [1].  That award was the second large grant he had received since the new chairman's arrival.  Bernofsky was terminated on April 21, 1995, ten weeks before the stipulated term of his last yearly appointment letter. Tulane's reasons for dismissing him — lack of grant money and inadequate scientific productivity — were mere pretexts.  Bernofsky's grants negated the former while the testimony and letters of world-class experts in his field negated the latter.

The presiding judge chose to ignore these facts and accepted Tulane's blatant misrepresentations in the face of contradictory evidence.  Bernofsky now believes the judge's partisanship derives from her long-term association with Tulane, which includes an adjunct appointment as an associate professor in Tulane's Law School [2].  Of the two magistrates involved in the case, one is an adjunct associate professor at Tulane's Law School and the other has a spouse with the position of assistant professor at Tulane's Medical School.  None of these relationships were disclosed by either the judges or Tulane and were unknown to Bernofsky at the time his appeal was filed.

Initially, Bernofsky filed a lawsuit and an injunction to keep Tulane from destroying work in progress and redistributing the contents of his laboratory, which was more than 90% acquired from research grants and personal family funds. The injunction was denied, the lawsuit eventually thrown out, and Bernofsky's attempt to transfer his research program to a neighboring institution was thwarted.  In the end, Tulane disposed of his work and siezed his possessions.  His health was decimated, and he came down with a serious case of malignant lymphoma.  Tulane then blocked his disability claim to the Teachers Insurance and Annuity Association even though the disease was diagnosed three weeks before the end of his continuing yearly appointment.  When Bernofsky finally recovered from surgery, chemotherapy, and radiation treatment and started looking for work again, he discovered that Tulane was sending false and defamatory statements to prospective employers or refusing to respond to their requests for recommendations.

Among Tulane's adverse actions was its abuse of the tenure process.  Bernofsky's previous department chairman had promised him tenure annually and admitted in at least six letters to third parties that Bernofsky was first in line for the tenured position that would be made available by the next retirement.  That promise was unambiguously stated in a document from the chairman that was countersigned by the dean and submitted to the National Institutes of Health, a federal agency.  The chairman had also submitted a formal recommendation of tenure to the dean [see PDF].  Bernofsky learned of the latter only during the course of legal proceedings and thus was precluded from taking any of the due-process steps that would have been available to him.

Despite the above promises, the next tenured position was given to a similarly-situated, non-Jewish research professor with inferior academic credentials, who was previously denied tenure twice by the Personnel and Honors Committee [3] because of inadequate academic performance.  She was granted "automatic" tenure based on the length of time she had served in a non-tenure-track position.  Tulane's President personally endorsed her grant of automatic tenure.  At the same time, Bernofsky continued to receive assurances that his position was "secure," and the new chairman, after his arrival, repeatedly affirmed that Bernofsky had "de facto" tenure, a fact he has never denied.

Although Tulane's Constitution and Faculty Handbook call for the dean to refer a chairman's recommendation of tenure to the Personnel and Honors Committee, the dean did not follow this procedure in Bernofsky's case and the chairman remained silent.  The chairman himself was under threat of termination because he was 65 years of age.  In Bernofsky's opinion, the dean did not refer his recommendation to the Personnel and Honors Committee for fear that the Committee would rule in his favor after reviewing his credentials.  The dean's action is a serious violation of University regulations and in light of the subsequent hostility against Bernofsky appears to have been motivated by race and age discrimination, the major causes of action in Bernofsky's 1995 lawsuit.

Prior to the September 8, 1997 trial date, and nearly a year after Tulane filed its Motion for Summary Judgment, the presiding judge ruled against Bernofsky on every cause of action.  The judge based her decisions largely on arguments presented by Tulane in the Pretrial Order, and she ignored the sworn testimony contained in Bernofsky's affidavits and depositions.  Bernofsky appealed to the Fifth Circuit Court of Appeals, and on January 5, 1998, a panel of three judges heard oral arguments.  In his appeal brief, Bernofsky went to great lengths to show that many of the material issues considered "undisputed" by the presiding judge were, in fact, in serious dispute.

However, at the appeal hearing, the judges were swayed by three false allegations presented by Tulane's attorneys.  Two allegations had not previously surfaced, and all three were contradicted by Tulane's own documents.  Despite a formal protest and the submission of new documents, the appellate court would not reconsider its opinion.  The U.S. Supreme Court also declined to review Bernofsky's petition for certiorari.

Bernofsky believes that the close association of the lower court with Tulane was sufficient to taint its judgment and prejudice the case.  In other recent lawsuits against Tulane involving charges of discrimination, the same magistrates assigned to Bernofsky's cases have admitted to the appearance of impropriety and recused themselves.  However, in Bernofsky's cases, the presiding judge, the Hon. Ginger Berrigan, refused to recuse herself despite an even greater appearance of impropriety.  Evidence of her close association with the defendant may now warrant the taking of action to force Judge Berrigan to vacate her earlier opinion so that the lawsuit can be reinstated and tried on its merits.


Endnotes
  1. Monitor, Tulane University Medical Center News, Vol. 2, No. 7, March 1995.
     
  2. Tulane Law School Catalog listings, 1994 through 1999.
     
  3. The School of Medicine's faculty-constituted tenure-advisory body.
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