# Petition for Writ of Certiorari — Bernofsky v. Administrators of the Tulane Educational Fund

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2001
- **Citation:** 534 U.S. 1036

## Text

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04-249 WN 09 200

No.___osseror THE

In the
Supreme Court of the Hnited States

DR. CARL BERNOFSKY,
Petitioner,

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

i A { 228 St. Charles Avenue
Wo WF col :
Suite 1028
rave AE THE Ci ray New Orleans, LA 70130-2659

(504) 525-0250

Counsel for Petitioner

¥X

QUESTIONS PRESENTED

- 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 $5500.00.

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

ii
TABLE OF CONTENTS

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Reasons for Granting Writ of Certiorari ................0.. 6
5. TN nuk va vache oe ea aes eee eee 6

I]. Standard of Review for Summary Judgment ........ 7

Ill. 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

IV. The district court erred in concluding that under Mattern
v. Eastman Kodak Company, 104 F.3d 708 (Sth 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

Appendix A

Appendix B

Appendix C

Appendix D

Appendix E

Appendix F

Appendix G

Fe RL PEL ESE CRY TERT ET CTT T SOC T eee re 12

Judgment of the United States District Court for the

Eastern District of Louisiana,
eae A-1

Order and Reasons of the United States District
Court for the Eastern District of Louisiana,
Ea ae ELAR Nail ee A-2

Order and Reasons of the United States District
Court for the Eastern District of Louisiana,
NN oo ok a wv woe bccn ccm A-25

Per Curiam opinion of the United States Court of
Appeals for the Fifth Circuit, affirming district court

judgment, with dissent by Chief Judge King,

a ns A-30

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,
ge eee A-32

Letter of Dr. Wolinsky to Dr. Stjernholm,
kg REPEL SE NN ere a rns A-34

Letter from Dr. Bernofsky to Judge Berrigan
requesting that she recuse herself,
Cn << shascedus aah esaeeacetn A-35

iV
TABLE OF AUTHORITIES
CASES

Berry v. Stevinson Chevrolet, 74 F.3d 980, 986 (10th Cir. 1996)
Sia bd 6 SOU AeA eke NAE TERA aw OC woke 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

ctscepeekencscwauwenenn ead es eas ta aaa ses 14
Corneveaux v. CUNA Mutual Ins. Group, 76 F.3d 1498, 1507 (10th
Ras EE a vcd oa oe bcs Ake eae Pa ee ees 16
EEOC v. LB Foster Company, 123 F.3d 746, 754, n4 (3rd Cir. 1997)
EO Fran Ee anette eee Py A Wegman 14,15
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)
PPS Pe PO PO ER Te oe Te eee pies Ee cepa apie 13

BTA ARRAS ICED UNE Dieta cine Sainte 10

Liteky v. U.S., 510 U.S. 540 (1994) at 548, 114 S.Ct. 1147, 127
sg ARN PT PP ie ey a et Pog er ea eg oF 10

Pee ee ee er ee TE TT Cee TV eT Tee Te Cre Tee ee 12,18

Meritor Savings Bank v. Vinson, 477 U.S. 57, 65, 91 L.Ed. 2d 49,
Ps ee PE oc aS a Sab bd dee eA ORO Rees 17

Vv

Pantchenko v. C. B. Dolge Company, Inc., 581 F.2d 1052 (2nd Cir.

PRE: sh pde Ks eee ead wieaa ds aco ee 15
Passer v. American Chemical Soc., 935 F.2d 322, 330-331 (D.C. Cir.
FUER coadiavnbaduseetin tty dee ee 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)
ead beeeu sad dbuedede ded deka es OE eee 7
Robinson v. City of Pittsburgh, 120 F.3d 1286, 1300 (3rd Cir. 1997)
teh OVC Ch eens 24d SORe CL WEREREER EOE 14
Robinson v. Shell Oil Co., 519 U.S. 337 (1997)... 2.0.00... 20
Rubinstein v. The Administrators of the Tulane Educational Fund,
Case Nos. 00-789 and 00-996 (Sth Cir. 2000) ............. 6,8
Rutherford v. American Bank of Commerce, 565 F.2d 1162 (10th
Ce EEE co bei shad dauaeen ee ee 16
Smith v. St. Louis University, 109 F.3d 1261, at 1266 (8th Cir. 1997)
(04086600 bs es ket NES Eke ee hear 13
Torres v. Pisano, 116 F.3d 625, 640 (2nd Cir. IPED cc avkacs 15
United States v. Jordan, 49 F.3d 152, 156 (Sth Cir. 1995) .... 21

Wideman v. Wal-Mart Stores, Inc., 141 F.3d 1453, 1456 (11th Cir.
PO 6.86 50 Mae keen Dae ea ae 16

Wyatt v. City of Boston, 35 F.3d 13, 15-16 (Ist Cir. 1994) ... 16

vi

STATUTES
UBL. COGS 6 ociscincinecisessidaeee ee 10
Code of Conduct for United States Judges, § 3.4-3(a) ....... 10
TREATISE

EEOC Compliance Manual, Section 8, “Retaliation,” Te
STIS CIOOUD oacc csv cnccendacdesbaunle eee

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

Vii

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.

sicicetaibt ais

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SUPREME COURT OF THE UNITED STATES
October Term, 2001

DR. CARL BERNOFSK Y
Petitioner

¥.

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

NA ST TET eT IN NE ee Se STS im TO eS Te SE ee ee
2

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, |
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 of 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

PRE

3

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.

| 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.
Sternholm 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

4

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. :
Grant Funding
1976 to 1996
aa Carl Bernofsky
WY
z $250
8
o 2 $200
*% <
Cc Oo
© $ $150
a
Liv} ~~
= $100 | |
< Terminated
$50 4/21/95
v
$0
76 80 84 88 92 96

Calendar Year

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

ia I io i

5

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
ietter 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

6

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.

7

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 (Sth 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 nonmovantas 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.

8

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:

... 1m 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

9

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.

10

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 tiiere 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.
ULS., 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:

11

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 J udge
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

12

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 (Sth 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 (Sth
Cir. 1997). See A-12. Using the restrictive language in Mattern, the

atti

13

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 vy. 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.

14

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 fan] '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

———————— aE ena

15

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.

16

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 (Ist 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 (1 Ith 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).

17

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
\

18

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 lorig 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

19

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.

20

Further evidence of defamation and iilegal 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.

24
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 (Sth 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 ina 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.

22

Respectfully submitted,

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

Appendix A

Appendix B

Appendix C

Appendix D

Appendix E

Appendix F

Appendix G

APPENDIX
TABLE OF CONTENTS

Judgment of the United States District Court for the
Eastern District of Louisiana,
RARE ag ah a ep A-!

Order and Reasons of the United States District
Court for the Eastern District of Louisiana,
SE rae nee Ce ad A-2

Order and Reasons of the United States District
Court for the Eastern District of Louisiana,
eg en el a ae ees A-25

Per Curiam opinion of the United States Court of
Appeals for the Fifth Circuit, affirming district court
judgment, with dissent by Chief Judge King,
SE keV cA GensNiss chs teh aee A-30

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,
EE ccukcdduewct none das eo A-32

Letter of Dr. Wolinsky to Dr. Stjernholm,
SN ee ae roel e's tee Ot bia ae A-34

Letter from Dr. Bernofsky to Judge Berrigan
requesting that she recuse herself,
Ec. ecscdy nine kckieedchban A-35

A-|

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

DR. CARL BERNOFSKY CIVIL ACTION
VERSUS NUMBER: 98-1792
c/w 98-2102

REF: BOTH CASES _
ADMINISTRATORS OF THE TULANE SECTION "C" 5
EDUCATIONAL FUND

JUDGMENT

In accordance with the court’s order and reasons issued
April 18, 2000,

IT IS ORDERED, ADJUDGED AND DECREED that
there be judgment in favor of defendant, Administrators of the
Tulane Educational Fund, and against plaintiff, Carl Bernofsky,
dismissing said plaintiff's complaint with prejudice.

IT IS FURTHER ORDERED that the motion by the
Administrators of the Tulane Educational Fund to strike the
affidavit of Carl Bernofsky (record document #78) is DISMISSED

as moot.

New Orleans, Louisiana, this_18 day of April 2000.

s/ Helen G. Berrigan
HELEN G. BERRIGAN
UNITED STATES DISTRICT JUDGE

A-2

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

DR. CARL BERNOFSKY CIVIL ACTION
VERSUS NO. 98-1792 c/w
98-2102

ADMINISTRATORS OF THE TULANE SECTION "C"
EDUCATIONAL FUND

ORDER AND REASONS

This matter comes before the Court on motion for
summary judgment filed by the defendant, the Administrators of
the Tulane Educational Fund ("Tulane") and motions in limine.
Having considered the record, the memoranda of counsel and the
law, the Court finds that summary judgment is appropriate for the
following reasons.

The plaintiff, Dr. Carl Bernofsky ("Bernofsky"), formerly
worked at Tulane University Medical School. His original suit for
race and age discrimination as well as various state law claims
against Tulane was dismissed on summary judgment and affirmed
on appeal. Bernofsky v. Tulane University Medical School, 962
F.Supp. 895, 897 (E.D.La. 1997), aff'd, 136 F.3d 137 (Sth Cir.
1998). He now sues Tulane for retaliation under 42 U.S.C. § 1981
and Title VII and for retaliation and defamation under Louisiana
state law in conjunction with requests for references on
employment applications.

A-3

A review of the factual events leading up to the plaintiff's
termination are necessary to place the current claims in context.'

Bernofsky was a Research Professor in the Biochemistry
Department at Tulane Medical School. It is undisputed that as a
research professor, Bernofsky was responsible for raising the bulk
of his own salary through research grants. From his arrival at
Tulane in 1975 until 1986, he was apparently generally successful.
From 1986 forward, however, Tulane provided salary support
ranging from roughly 70% - 100% a year. In the 1993-1994 cycle,
Tulane provided 100% of Bernofsky's salary. (Civ. Act. 95-358,
Rec. Doc. 55, Exh. D). In exchange for such salary support, a
research professor is supposed to teach and participate in other
departmental activities.

In March, 1994, the Department Chairman, Dr. Jim D.
Karam ("Karam") advised the Dean of the School of Medicine
that he had "serious reservations" about recommending Bernofsky
for reappointment in the 1994-1995 academic year. (Civ. Act.
95-358, Rec. Doc. 55, Exh. F). Karam cited Bernofsky's "minimal
participation in Departmental duties, his general lack of
collegiality, and his sub-average contribution to the intellectual
environment in the Department" as well as his "below
expectations" performance in science. Karam also pointed out
that the Department had been paying most of Bernofsky's salary
“yet he has done little in return to contribute to our intellectual
growth or to a positive atmosphere." In May, 1994, Karam
appointed a Faculty Review Committee ("Committee"), consisting
of the former department chairman, Professor Rune L. Stjernholm
("Stjernholm"), Emeritus Professor Richard H. Steele ("Steele")

' These factual findings are drawn from pleadings filed in
Dr. Bernofsky's underlying lawsuit, Civil Action 95-358 "C".
References to this first suit shall begin with "Civ. Act. 95-358."
All other undesignated record document references are to this
immediate record.

A-4

and a third professor, to evaluate Bernofsky's performance. (Civ.
Act. 95-358, Rec. Doc. 55, Exh. D). In that evaluation, the
Committee noted the salary support from Tulane, noted that
Bernofsky has a "very light teaching load"; that he "does not
participate or is exempt" from all other course related activities
and that he did not participate in any of the departmental
committees. With respect to his research, the Committee found
that from 1958 through 1986, Bernofsky's published work had
been in “outstanding referral journals" but that since 1986, his
research had been published in only obscure journals. The
Committee also stated that his then active grants were all due to
terminate shortly and that he had been unsuccessful in seeking
new funding, despite a number of applications. The Committee
noted that "70% of Dr. Bernofsky's effort is now spent on writing,
revising or resubmitting grant proposals in an endless manner."
They concluded that his "research activities and accomplishment
are not competitive."

After receiving this report, Karam issued a memorandum
to Bernofsky, indicating that he would recommend Bernofsky for
reappointment as a Research Professor, but with certain
stipulations. (Civ. Act. 95-358, Rec. Doc. 55, Exh. E). Karam
provided a copy of the Committee Report with his memorandum.
He noted Bernofsky's obligation to sustain his own salary through
grant funding and noted that Tulane had been paying a heavy
percentage of his salary for a number of years. Karam was critical
of Bernofsky's "modest" research productivity; his "minimal"
service to the Department; his unwillingness to teach; and his
reclusiveness and lack of scholarly interaction with colleagues.
He rated his overall performance for the last three years as
"largely unsatisfactory" and gave him 10 months to show
“significant improvement." The thrust of the requirements were
that Bernofsky had to generate funding for his salary and accept
teaching responsibilities. According to Karam's memo,
Bernofsky's approved Tulane salary for 1993-94 had been
$65,453. Bernofsky declined to teach under the terms set forth by

A-5

Karam. In a memorandum of August 16, 1994, Karam advised
Bernofsky that he would provide "one more chance" for him to
secure grant support for his research and salary, placing him on a
6-month termination notice, which would expire in February,
1995. (Civ. Act. 95-358, Rec. Doc. 55, Exh. O). In December,
Karam once again advised Bernofsky of the February deadline for
grant funding to cover his salary. (Civ. Act. 95-358, Rec. Doc.
55, Exh. P). On January 31, 1995, Karam formally notified
Bernofsky of his termination, effective February 28, 1995. (Civ.
Act. 95-358, Rec. Doc. 55, Exh. Q).

Also on January 31, 1995, Bernofsky filed his original
lawsuit, alleging that his imminent termination was
discriminatory. (Civ. Act. 95-358, Doc. 1). The plaintiff
requested injunctive relief. (Civ. Act. 95-358, Doc. 3). The Court
ordered the parties to enter into settlement discussions and
likewise ordered that "the status quo" be maintained with respect
to Bernofsky's employment, pending those discussions. (Civ. Act.
95-358, Doc. 13). Extensive settlement discussions followed, but
were terminated unsuccessfully in late March, 1995. (Civ. Act.
95-358, Docs. 16, 18, 19). Bernofsky's employment with Tulane
ended as of April 21, 1995. In June, 1995, Karam notified the
Dean of the School of Medicine, Dr. James Corrigan, that
"Termination of his position is due to lack of current research
funding by the faculty member." (Civ. Act. 95-358, Doc. 55, Exh.
R).

In February, 1995, while settlement discussions were
ongoing, Bernofsky was notified by the United States Department
of Air Force that a grant proposal he had submitted was going to
be recommended for approval. The letter noted that funding had
not yet been allocated and a contract would be necessary. (Rec.
Doc. 77, Exh. 41). In Bernofsky's proposed budget to the Air
Force, he identified his first year salary from the grant as $13,679.
(Rec. Doc. 77, Exh. 47). The total proposed grant for the first
year was approximately $125,000 and approximately $126,000 for
the second year, if renewed. It is undisputed that in mid-February,

A-6

Tulane was aware of the Air Force's action. (Rec. Doc. 77, Exh.
44).
\

In his initial lawsuit and subsequently amended lawsuit,
filed January 31 and February 27, 1995, respectively, Bernofsky
challenged his termination as being discriminatory. (Civ. Act. No.
95-358, Rec. Docs. | & 14). While his suit named Tulane
University Medical School as the defendant, the only person
identified as responsible for his complaints was Karam. The
allegations against Karam were pervasive, specific and personal.
Bernofsky alleged that immediately after Karam's appointment as
Department Chairman, he "interfered and discriminated against
plaintiff in a myriad of ways", including refusing to provide space
for a machine Bernofsky wanted’; that throughout 1994, Karam
"harassed plaintiff" about additional new funding and that
Karam gave "false and misleading information" to possible
funding sources making it "impossible" for the plaintiff to secure
funds before his 1994 grants expired’; that Karam "devised a
scheme to produce an unflattering evaluation of plaintiff"; and
that Karam "interfered" with the plaintiff's staff and "forced" their
resignations.° Finally, Bernofsky alleged that Karam "elected to
terminate his appointment for 1995, refused to reappoint him for
1996, and refused to put his name up for conversion to a tenured

? Civ. Act. 95-358, Doc. 14, Para. 30-31.
> Civ. Act. 95-358, Doc. 14, Para. 36.
* Civ. Act. 95-358, Doc. 14, Para. 37.

* Civ. Act. 95-358, Doc. 14, Para. 38-39.

A-7
position."® The basis of Karam's decisions was allegedly
anti-Semitism and age discrimination.’

While this lawsuit was pending at the district court level,
Bernofsky applied to various other institutions for employment.
In his applications, he apparently identified Professors Karam,
Stjernholm and Steele as his references. Karam, of course, is the
Department Chairman who terminated Bernofsky and who at that
point in time bore the entire brunt of Bernofsky's active
allegations of discriminatory treatment. Stjernholm was the
chairman of the Facuity Committee whose unflattering critique of
Bernofsky was openly relied upon by Karam in putting Bernofsky
on his initial probationary period prior to termination. Steele was
the second of the three members of that Faculty Committee.
Bernofsky listed each of these individuals as references without
requesting their permission or even notifying them that he had
done so.

The focus of this lawsuit and these motions is the
defendant's responses to two requests for recommendations from
two universities to which the plaintiff had applied for employment
after his termination from Tulane. It is undisputed that with
regard to the first university, University of Houston ("UH"), the
Tulane professors responded by referring the inquiry to John Beal
("Beal"), in-house counsel for Tulane. Beal wrote Dr. Ira _
Wolinsky ("Wolinsky") of the University of Houston a a on
February 21, 1997. That letter provided 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 Bernofsky.

® Civ. Act. 95-358, Doc. 14, Para. 49.

7 Civ. Act. 95-358, Doc. 14, Para. 50-51.

A-8

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.

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. His dismissal was
not based upon any performance issues, but was
strictly a financial decision due to lack of research
funds.

Lack of a 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.

Bernofsky learned about this letter in March 1997.
Thereafter, he contacted Wilbur Campbell ("Campbell") with
Michigan Technological University ("MTU"), who sent letters
requesting references from Tulane with no response. The plaintiff
also complains in general that he has applied to 50 potential
university employers with no response because of Tulane's
retaliation.®

Retaliation

The plaintiff alleges that the Beal letter to Wolinsky and
Tulane's silence in response to the inquiry from Campbell were

* The plaintiff's opposition does not discuss these 50 other
applications in any detail, which indicates to the Court that he is
not pursuing claims based on them.

A-9

retaliatory under federal and state law. With respect to the state
law claim, Tulane argues that certain legislative amendments to
Louisiana's anti-discrimination laws in 1997 effectively deleted,
presumably inadvertently, any state claim based on retaliation.
Tulane also argues that if such a claim exists statutorily, it has
prescribed since Bernofsky did not challenge the responses as
retaliatory until he amended his petition, over a year after learning
of the Beal letter. The plaintiffs original petition simply alleged
the Beal letter was defamatory.

The Court will assume for purposes of this motion, that
Bernofsky's state law claim of retaliation survive these objections
and move to the substantive merit of the claim.”

The parties appear to agree that in order to establish a
prima facie claim of retaliation under Title VII, Section 1981 and
Louisiana law, the plaintiff must show: (1) the employee engaged
in activity protected by Title VII; (2) the employer took adverse
employment action against the employee; and (3) a causal
connection between the protected activity and the adverse
employment action. Burger v. Central Apartment Management,
Inc., 168 F.3d 875, 878 (Sth Cir. 1999); Mattern v. Eastman
Kodak Co., 104 F.3d 702, 705 (Sth Cir.), cert. denied, 522 U.S.
932 (1997). Ifa prima facie case is shown, an inference of
retaliation is established. The burden of proof is shifted to the
defendant, who must articulate a legitimate nondiscriminatory
reason for the challenged employment action. Shackelford v.
Deloitte & Touche. L.L.P., 190 F.3d 398, 408 (Sth Cir. 1999). If
the defendant introduces evidence which, if true, would permit the
conclusion that the adverse employment action was
nondiscriminatory, the inference of the prima facie case
disappears and the focus shifts to the question of whether the

® Since the Court concludes the claim does not have
substantive merit, it prefers to rule on that basis rather than upon a
procedural or statutory bar.

A-10

defendant unlawfully retaliated against the plaintiff. Long v.
Eastfield College, 88 F.3d 300, 305, fn. 4 (Sth Cir. 1996).
Summary judgment is appropriate unless the plaintiff proves that
the defendant's explanation is pretextual. Shacklford, 190 F.3d at
408."°

A plaintiff may avoid summary judgment only if the
evidence, taken as a whole: (1) creates a fact issue as to whether
the employer's stated reasons was not what actually motivated it;
and (2) creates a reasonable inference that race was a
determinative factor in the challenged actions. The plaintiff must
present evidence sufficient to create a reasonable inference of
discriminatory intent. Grimes v. Texas Dept. of Mental Health &
Mental Retardation, 102 F.3d 137, 141 (Sth Cir. 1996).

The ultimate issue in an unlawful retaliation case is
whether the defendant discriminated against the plaintiff because
the plaintiff engaged in protected activity. Long, 88 F.3d 300 (Sth
Cir. 1996). In order to ultimately prevail in a retaliation claim, the
plaintiff must show that the protected conduct was a "but for"
cause of the adverse employment action. Scrivner v. Socorro
Independent School District, 169 F.3d 969 (Sth Cir. 1999). "In
other words, even if a plaintiff's protected conduct is a substantial
element in a defendant's decision to terminate an employee, no
liability for unlawful retaliation arises if the employee would have
been terminated even in the absence of the protected conduct."

'° If there is close timing between the protected activity
and the adverse employment action, the employer must offer a
legitimate, nondiscriminatory reason that explains the adverse
action and the timing. Id., Here, the reference issue arose over two
years after the lawsuit had been filed.

A-11

Long, 88 F.3d at 305, fn. 4. See also: Casarez v. Burlington
Northern/Santa Fe Co., 193 F.3d 334 (Sth Cir. 1999)."'

Tulane does not dispute ex-employee Bernofsky's standing
to sue for retaliation under Robinson v. Shell Oil Co., 519 U.S.
337 (1997), and admits that the Fifth Circuit has not addressed
whether or under what circumstances a negative reference would
qualify as an adverse employment decision. Tulane first argues
that a negative reference alone does not constitute an adverse
employment action and that, in any event, Bernofsky would have
to show that he was not employed by the prospective employer
because of the negative reference or silence. Bernofsky argues in
opposition that the dissemination of a negative reference with
discriminatory intent, not the non-hiring by the prospective
employer, qualifies as an adverse employment action, relying on
Hashimoto v. Dalton, (9th Cir. 1999).

The Fifth Circuit "has analyzed the 'adverse employment
action’ element in a stricter sense than some other circuits."
Burger, 168 F.3d at 878. The Fifth Circuit holds that the
requirement is met with only "ultimate employment decisions, not
... every decision made by employers that arguably might have
some tangential effect upon those ultimate decisions." Mattern
104 F.3d at 707.

'' The standard for establishing the causal link in the prima
facie case is less stringent. Long, 88 F.3d at 305, fn. 4. The
Second Circuit in Sarno v. Douglas Elliman-Gibbons & Ives. Inc.,
183 F.3d 155, 160 (2d Cir. 1999), indicated that the employee must
show that the statements "caused or contributed to the rejection by
the prospective employer" with regard to the prima facie case but
did not, as suggested by the plaintiff, establish that lesser causation
governed the ultimate causation issue.

A-12

To hold otherwise would be to expand the
definition of "adverse employment action" to
include events such as disciplinary filings,
supervisor's reprimands, and even poor
performance by the employee--anything which
might jeopardize employment in the future. Such
expansion is not warranted.

Mattern, 104 F.3d at 708 (emphasis added}. In Mattern, the Fifth
Circuit identified ultimate employment decisions to include
hiring, granting leave, discharging, promoting and compensating.
Mattern, 104 F.3d at 706-707.

The Fifth Circuit recently acknowledged that its narrow
view of what constitutes an adverse employment decision is the
minority view throughout the country. Burger, 168 F.3d at 877,
fn 3. Our sister circuit, the Eleventh, has specifically rejected the
Fifth Circuit view as being "inconsistent with the plain language"
of the statute. Wideman v. Wal-Mart Stores, Inc., 141 F.3d 1453,
1456 (Ilth Cir. 1998). In so doing, the Eleventh Circuit joined the
First, Ninth and Tenth Circuits in finding that retaliatory
discrimination extends to adverse decisions that do not rise to
ultimate employment decisions. 141 F.3d at 1455-1456. This
Court for one would welcome a revisiting of the issue by the Fifth
Circuit. See Mattern, (Dennis, J. dissenting).

The Fifth Circuit would require, at a minimum, that an
adverse employment action must involve some determinative
negative employment impact on the plaintiff. Therefore, Tulane's
letter or silence could not constitute an ultimate employment
decision if it affected no other employment decision. Being
bound by Fifth Circuit jurisprudence, this Court concludes that the
relevant adverse employment action here is the prospective
employer's failure to hire, not the mere issuance of a negative
reference letter or silence on the part of the former employer
standing alone.

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Again, in light of the Fifth Circuit jurisprudence, a
formidable issue in this case is whether the issuance of the Beal
reference letter to Wolinsky or Tulane's silence in response to
Campbell's request was a determinative factor in the failure of the
University of Houston or Michigan Technological University to
hire Bernofsky.

It is undisputed that Bernofsky can not show that any of
the universities to which he applied either had an open position or
were at that time hiring. Bernofsky argues that:

Tulane argues ... that funding was integral to
Bernofsky's ability to secure another position and
implies that his lack of grant funding was a basis
of his unsuccessful job search. This attempt to
deflect blame from itself is negated by the fact
that Bernofsky only applied for administrative and
teaching positions for which he deemed himself
qualified. He did not apply for any purely
research position.

(Rec. Doc. 77, p. 46). Therefore, any issue raised by Bernofsky
regarding the actual amount of Air Force funds, if any, he had at
the time of termination would be irrelevant since funding was not
a consideration in the positions sought. Bernofsky agrees that
both contacts at the two subject universities were friends and
aware of his good reputation before sending the letters of request
to Tulane.

The plaintiff presents deposition testimony from the
plaintiff's friends at the two universities who testified that they
wanted to help Bernofsky. Wolinsky testified that he anticipated a
position opening soon at the University of Houston due to the
anticipated departure of another faculty member. Wolinsky also
testified he was "keeping my eyes open" and anticipated
introducing Bernofsky to other people on campus who might have
positions that he "might" qualify for. (Rec. Doc. 72, Exh. D,

A-14

p. 28). Wolinsky testified that he could not have gone further in
helping Bernofsky upon learning of the pending litigation.
Wolinsky also testified to his concern about Bernofsky's veracity
raised by the letter's statement that his position was eliminated due
to a lack of research funds, contrary to Bernofsky's curriculum
vitae. Campbell testified that there was no specific search going
on for new faculty but that he thought there was a "possibility"
Bernofsky could be hired in a research position. Campbell
testified to his inability to proceed with his inquiry due to the lack
of references from Tulane. However, Bernofsky offers no proof
that an actual position was available or would have been created
for Bernofsky "but for" the reference or lack thereof, or that the
reference or lack thereof was a determinative factor in his not
being hired.

Even assuming, for purposes of the motion and despite the
Fifth Circuit requirements, that the reference letter and/or Tulane's
silence could be construed to have adversely impacted the two
universities’ "ultimate employment decision" to not hire
Bernofsky, the defendant has offered a legitimate
nondiscriminatory reason for the action it took. The defendant
claims the letter to Wolinsky was substantially accurate and was
in response to an inquiry on behalf of Bernofsky. Furthermore,
the letter disavowed any negative inferences as to Bernofsky's
performance and identified lack of funding as the sole reason for
dismissal, even though performance issues did play a part in
Bernofsky's termination. With respect to the failure to respond to
Campbell's inquiries, Tulane explains this as simple inadvertence
and not a deliberate silence. In light of all the evidence, the Court
is convinced that these explanations are valid. It is at this juncture
where this Court finds that the plaintiff's claim collapses, even
assuming it has survived the procedural and substantive hurdles
already encountered.

With respect to the Beal letter, the plaintiff does not attack
the letter as a whole, but rather two specific statements in the
letter which the plaintiff claims were retaliatory - one, that

a

A-15

Bernofsky had pending litigation "against Dr. Karam personally"
and two, that Bernofsky's position at Tulane was eliminated
because Bernofsky no longer had "any" research funds to support
his position. The plaintiff claims neither of these statements was
in fact true, ergo they were retaliatory.

The Court finds that the statements were substantially
true, and even if technically inaccurate, they were not retaliatory.
With regard to the reference to Karam, as pointed out at the outset
of this opinion, even though Bernofsky had named Tulane as the
actual defendant in the underlying litigation, the content of the
accusations were directly solely at Karam. Bernofsky accused
Karam of harassment, dispersing false information and scheming
against him. Bernofsky blamed his termination on Karam and
alleged that Karam took all these actions because he was
anti-Semitic and prejudiced against older people. As Beal
explained, "the target of the lawsuits is certainly Dr. Karam. The
individual he alleges committed the wrongful acts is Dr. Karam.
While he has not named Dr. Karam, he certainly has targeted Dr.
Karam." (Rec. Doc. 72, Exh. C, p. 11). Consequently, in
explaining to Wolinsky why he had instructed Karam not to
respond, Beal was substantially accurate in opining that the
litigation was against the university and also against Karam
"personally."

With regard to the reference to research funds, the
plaintiff claims that Beal's statement that Bernofsky's position was
eliminated because he no longer had "any" research funds was
untrue because the Air Force had approved a grant application in
April, 1995, virtually simultaneously with Bernofsky's formal
termination.

It is undisputed that from May, 1994 through Bernofsky's
termination, Karam had repeatedly advised Bernofsky that Tulane
would no longer subsidize his salary and he needed to raise the
funds for that purpose. He was advised on January 31, 1995, that
he was being terminated effective February, 1995, because of his

A-16

failure to do so. Bernofsky filed suit at the end of January and this

Court put his employment status "on hold" pending settlement
discussions between the parties. The settlement discussions were
unsuccessful, Bernofsky was terminated effective April, 1995, and
in a June, 1995 letter to the Dean of the Medical School, Karam
advised that "Termination of this position is due to lack of current
research funding by the faculty member." Beal's letter to
Wolinsky accurately reported the reason stated by Karam for
Bernofsky’s termination.

The Air Force grant was apparently approved in April,
1995. While the underlying record is silent as to how the
impending grant was dealt with during the settlement discussions
prior to formal termination, it is clear that even with $13,679
earmarked for Bernofsky's salary, Tulane would still be left
shouldering nearly 80% of his faculty pay. This had been par for
the course for a number of years and Karam had made it clear that
it was unsatisfactory. Again, however, Beal correctly reported to
Wolinsky the reason stated by Karam for Bernofsky's termination.

Even if the two disputed statements in Beal's letter can be
construed as inaccurate, in the overall context, the plaintiff cannot
establish that they were retaliatory.

Despite filing a lawsuit against Tulane, and specifically
accusing Karam solely of all the discriminatory treatment alleged,
Bernofsky nonetheless identified Karam as a reference in his
applications for employment at other universities, including his
inquiry to Wolinsky. His other two references were Stjernholm
and Steele, two of the three faculty members who authored the
critical evaluation provided to Karam, which commenced the
process leading to his termination. Bernofsky did not so without
asking their permission or even notifying them on his intentions
and while his underlying litigation was still active and ongoing.
Beal testified that it was medical center policy for the legal office
to review any reference letters solicited from individuals involved
in litigation. He noted Bernofsky's failure to approach the

Soe eee Oe

A-17

university about the references in advance and he cited concern
among the faculty members that this was an "attempt to set them
up," a legitimate concern."* (Rec. Doc. 72, Exh. C, p. 22-23).

None of this was expressed in the Beal letter. In fact, to
the extent Beal's letter is inaccurate, it is inaccurate in Bernofsky's
favor in painting a unduly rosy picture as to his termination. It is
noteworthy that Karam, Stjernholm and Steele expressed other
serious dissatisfaction with Bernofsky's performance, in addition
to his failure to garner grant money to support his salary.
Bernofsky was criticized for his failure to teach, his lack of
committee participation, his reclusiveness, his diminishing
research output and his publications in obscure, as opposed to
recognized, journals. None of that was expressed in Beal's letter.
indeed, Beal's letter expressly stated that Bernofsky's dismissal
“was not based upon any performance issues, but was strictly a
financial decision due to lack of research funds." Beal also stated
in the letter that "Lack of response form 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." As Beal testified, to say that
Bernofsky's dismissal was not based on any performance issues
"was a stretch.” (Rec. Doc. 72, Exh. C, p. 23). And to say that
silence from Drs. Karam, Steele and Stjernholm should not be
construed as negative was contrary to their actual evaluations.
Nevertheless, Beal testified that his intent was to put "Dr.

'2 Bernofsky listed as his only references individuals, in
particular Karam, who were pivotal in his negative evaluations
and termination from Tulane. Had any of the three written letters
that were favorable in some way, Bernofsky could have used them
in the ongoing litigation to refute the nondiscriminatory reasons
given for his termination. Had the letters been unfavorable,
Bernofsky could have used them, as he is attempting to use the
Beal letter, to show retaliation. The three individuals were in a
"damned if you do, damned if you don't" dilemma.

:
:

A-18

Bernofsky in the best light" so that his dismissal would not be
perceived as performance based, but rather as a failure of funding
“which is very common in academia." (Rec. Doc. 72, Exh. C,

p. 23-24). The fact that Bernofsky has to parse Beal's letter so
finely to criticize it only underscores the thundering absence of
what Beal.could have said had he wished Bernofsky ill.'’ The
Beal letter not only is not retaliatory, but it bends over backwards
not to cause him harm.

Likewise, Tulane has offered a valid, nonretaliatory
reason for failing to respond at all to the inquiry from Campbell,
namely that the inquiry simply was mislaid, or fell through the
cracks. In light of what could have been reported to Campbell
regarding the opinions of the three referenced professors, and in
light of how Beal handled the inquiry from Wolinsky, Bernofsky
utterly fails to produce any persuasive evidence that the silence
was retaliatory.

Bernofsky alleges a number of factual contentions. He -|
identifies them as relevant to "malicious intent" on the part of
Tulane. Most of them are irrelevant to the "reference " claims of
retaliation at issue here. Instead, most seek to revisit the issue of
discriminatory and retaliatory discharge, or to use the evidence
presented in that case to indirectly relitigate the issue of intent
surrounding his termination. Specifically, Bernofsky argues that
his termination was retaliatory; that he was not terminated due to a
lack of funds, that he was treated discriminatorily during his
employment at Tulane when compared to others, that Tulane tried
to "thwart" his Air Force grant application, that Beal harassed
Bernofsky by insisting that he abandon his laboratory at Tulane
after his terminaticn, that Tulane defamed Bernofsky by

'? Even had Beal disclosed the various evaluations by the
three professors to Wolinsky, presumably that would not be found
retaliatory either since the evaluations had in fact been made and
were part of the termination process.

ee ee ee Pee ae ae ee eee SSncatemn

A-19 i

terminating him prior to the end of his alleged contract, that
Tulane "subverted" an employment opportunity for Bernofsky by
not letting him maintain his laboratory after he had been
terminated, that Tulane discriminatorily denied him disability
benefits in 1995,'* breach of employment contract at Tulane,
illegal seizure of Bernofsky's equipment in conjunction with his
termination, Tulane's failure to provide a forwarding address for
Bernofsky in 1995, Tulane's interception of mail after his
termination, Tulane's cancellation of library privileges at Tulane
after his termination and Tulane's failure to forward messages
after his termination.’ These allegations are familiar. To the
extent that Bernofsky seeks to relitigate the issue of discriminatory
or retaliatory intent with regard to his discharge, this Court finds
that the lack of such intent has been determined in his first lawsuit
and that determination i; now final. To the extent that Bernofsky
seeks to establish impermissible intent with regard to the current
reference retaliation claims, the fact that Tulane did not
discriminate or retaliate in terminating Bernofsky is no less final.
To the extent that Bernofsky is arguing that Tulane's reason for
terminating him, for writing the letter of reference to UH or not
responding to the MTU request for a reference, are pretextual, the
factual allegations are insufficient to remove the inference of
impermissible retaliation or discrimination on this motion for
summary judgment. Shackelford, supra. Finally, to the extent
that these familiar facts are offered to create a reasonable

'* That disability claim was the subject of Bernofsky's
second lawsuit filed on May 27, 1998, and was dismissed by the
plaintiff on July 27, 1998, after the Court determined that the claim
was governed by ERISA . Teachers Ins. & Annuity Assn., Civ.
Act. 98-1577 "C". (Civ. Act. 98-1577 "C", Rec. Doc. 21).

'S This would include nearly all of the facts and arguments
set forth between pages 34 and 51 of the plaintiff's opposition.
(Rec. Doc. 77).

A-20

inference of discriminatory intent with regard to the claims of
reference retaliation, the Court finds that they are insufficient as a
matter of law. Bernofsky offers no new facts sufficient to create a
reasonable inference of discriminatory intent with regard to the
reference retaliation alleged. Grimes, supra. Therefore, summary
judgment on the retaliation claims is appropriate.

Defamation

In order to establish a defamation claim under Louisiana
law, the plaintiff must prove the following: |) a false and
defamatory statement concerning another; 2) an unprivileged
publication to a third party; 3) fault (negligence or greater) on the
part of the publisher; and 4) resulting injury. Trentacosta v. Beck,
703 So.2d 552, 559 (La. 1997).'* In order to prevail in a
defamation action, the plaintiff must prove that "the defendant,
with actual malice or other fault, published a false statement with
defamatory words which caused plaintiff damages." Sassone v.
Elder, 626 So.2d 345, 350 (La.1993), cited in Trentacosta, 703
So.2d at 559.

For the reasons already stated, the Court finds that the two
disputed remarks in the Beal letter were substantially accurate,
hence the first element of the defamation claim fails. Even if the
‘ disputed remarks were inaccurate, the Court concludes they were
not defamatory. Defamation is defined as words which "tend to
harm the reputation of another so as to lower him or her in the

'© Although the plaintiff argues facts relative to the lack of
response to the request for a reference from MTU, he does not
Clearly indicate that these facts comprise a separate claim of
defamation. In addition, he does not address the publication
requirement with regard to that claim. A defamatory action
requires communication of defamatory words to someone other
than the person defamed. Crooms v. Lafayette Parish Gov't, 628
So.2d 1224, 1226 (La. App. 3rd Cir. 1993).

A-21

estimation of the community or to deter third persons from
associating or dealing with him or her." Sassone, 626 So.2d at
352.

Whether a particular statement is objectively
capable of having a defamatory meaning is a legal
issue to be determined by the court, considering
the statement as a whole, the context in which it
was made, and the effect it is reasonably intended
to produce in the mind of the average listener.

Bell v. Rogers, 698 So.2d 749, 754 (La. App. 2nd Cir. 1997).

The focus then is whether stating that Bernofsky had filed
litigation against Karam "personally" when in fact Karam was not
named as an actual defendant in the suit and stating that
Bernofsky was terminated because didn't have "any" grant money,
when arguably he had some, was defamatory in the context of the
overall letter. The answer is "no." The truth is that even though
Karam was not a named defendant he was "named" by Bernofsky
throughout the petition as the specific and only cause of his grief,
including his termination. The allegations against Karam were
personal and direct. That Beal may have inaccurately implied in
his letter that Bernofsky actually named Karam as a defendant in
the suit hardly would cause the average listener to shun Bernofsky
or think less of his reputation. Whether or not Bernofsky could
have sued Karam personally is a legal question with no reputation
connotation at all .

Bernofsky cites testimony from Wolinsky that having
litigation against the chairman of the department from a prior
employment is a "kiss of death" to finding a new position since
any new appointment would have to be approved by that
chairman. However, the "kiss of death" comes from targeting the
chairman personally and specifically in the litigation as Bernofsky
indisputably did, regardless of whether he was specifically named
as a defendant. It is specious to argue that a prospective employer

I Sih ei ascii) alk a a

ona

A-22

would disregard the nature of the allegations in a prior lawsuit and
only be concerned about whether a prior employer had been
actually named a defendant. With regard to the funding issue, as
already noted, Beal accurately reported the reason Karam gave to
the Medical School Dean for Bernofsky's termination.
Furthermore, even assuming the "too little too late" grant of April,
1995, could have provided some marginal funding for Bernofsky's
salary had he been retained, it still wasn't enough to fulfill
Karam's conditions for continued employment. Consequently,
stating that Bernofsky was terminated because he hadn't "any"
grant funding as opposed to being terminated for having woefully
insufficient grant funding would not cause an average person to
think less of his reputation’.

Even assuming for purposes of this argument, that the
Beal comments were inaccurate and were "defamatory", the Court
finds a complete failure in proof as to the defendant's alleged
malice, actual or implied. For the reasons previously stated, the
Court finds that Beal went out of his way to paint as positive a
picture as possible for Bernofsky under the circumstances.

In addition, Tulane argues that it is entitled to a qualified
privilege for its communications with prospective employers
regarding Bernofsky. "The employer must be free to make a
complete and unrestricted communication without fear of liability
in a defamation suit even if the communication is shown to be
inaccurate, subject to the requisites that the communication is in

'’ Bernofsky argues that the inaccuracy caused him
damage because it conflicted with the representation he made in
his resume that he had received the Air Force grant, indicating
possible dishonesty. Bernofsky confected his resume in July,
1995, after his termination and after being advised by Tulane that
they would have to inform the Air Force of his dismissal.
Bernofsky chose to list the grant without explanation and thereby
assumed the risk of any misunderstanding.

a a er ee ee enn es

lee a a ene ee oe ene

A-23

good faith, is relevant to the subject matter of the inquiry and is
made to a person (or agency) with a corresponding legitimate
interest in the subject matter. ... 'This means that the person
making the statement must have reasonable grounds for believing
that it is true and he must honestly believe that it is a correct
statement’." Williams v. Touro Infirmary, 578 So.2d 1006, 1010
(La. App. 4th Cir. 1991), quoting Harrison v. Uniroyal. Inc., 366
So.2d 983 (La. App. Ist Cir. 1978). See also Hines v. Arkansas
La. Gas Co., 613 So.2d 646 (La. App. 2d Cir. 1993), writ denied,
617 So.2d 932 (La. 1993); Alford v. Georgia-Pacific Corp., 331
So.2d 558 (La. App. Ist), cert. denied, 334 So.2d 427 (La. 1976).

Bernofsky argues that there is an issue of fact as to Beal's
state of mind and purpose and that he could not have reasonable
grounds to believe that the two statements were correct. Again,
these statements mirror the Tulane's defense at the time the UH
letter was written, and this Court findings in the first lawsuit. The
Court finds that the statements are sufficiently correct and made in
good faith for purposes of this qualified privilege.

Finally, Tulane argues that it is entitled to the statutory

_ privilege set forth in La. Rev. Stat. 23:291A, which provides:

Any employer that, upon request by a prospective
employer or a current or former employee,
provides accurate information about a current or
former employee's job performance or reasons for
separation shall be immune from civil liability and
other consequences of such disclosure provided
such employer is not acting in bad faith. An
employer shall be considered to be acting in bad
faith only if it can be shown by a preponderance
of the evidence that the information disclosed was
knowingly false and deliberately misleading.

Bernofsky argues that this immunity is not available to Tulane
because there is an issue of fact as to whether the statements made

A-24

by Beal were accurate or knowingly false and deliberately
misleading. He then provides seven pages of familiar fact to
establish that Bernofsky's academic performance was not
unsatisfactory and that he did not consistently fail to generate
grant funds prior to his termination at Tulane.

Dr. Bernofsky may have a deep-seated and heartfelt need
to relitigate the issue of why he was terminated at Tulane.
However, his opportunity has come and gone. He can not
resurrect the issue in the carefully worded letter from Tulane to
Bernofsky's friend at UH regarding a nonexistent position, or from
Tulane's silence with regard to MTU's requests.

Accordingly,

IT IS ORDERED that the motion for summary judgment
filed by the Administrators of the Tulane Educational Fund is
GRANTED.

IT IS FURTHER ORDERED that:

1. The plaintiff's motion in limine regarding testimony
about the plaintiff's web site is DISMISSED as moot (Rec. Doc.
56);

2. The defendant's motion in limine regarding enjoining
plaintiff from making reference to his contended discriminatory
discharge (Rec. Doc. 60) is DISMISSED as moot;

3. The defendant's motion in limine to exclude or limit
the expert reperts of Barbara Haynie and Thomas Dalton (Rec.
Doc. 70) is DISMISSED as moot.

New Orleans, Louisiana, this _18 day of April, 2000.
s/___ Helen G. Berrigan

HELEN G. BERRIGAN
UNITED STATES DISTRICT JUDGE

A-25

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

—

DR. CARL BERNOFSKY CIVIL ACTION
VERSUS NO. 98-1792 c/w
98-2102

ADMINISTRATORS OF THE TULANE SECTION "C"
EDUCATIONAL FUND

ORDER AND REASONS

This matter comes before the Court on motion for recusal,
and, in the alternative, to amend judgment and motion for new
trial filed by the plaintiff, Dr. Carl Bernofsky ("Bernofsky").
Having considered the record, the memoranda of counsel and the
law, the Court finds that denial of both motions is appropriate for
the following reasons.

On April 18, 2000, the Court granted summary judgment
in favor of Bernofsky's former employer, the Administrators of the
Tulane Educational Fund ("Tulane"), dismissing his claims
against the Medical School for retaliation under 42 U.S.C. §1981
and Title VII and for retaliation and defamation under Louisiana
state law in conjunction with requests for references on
employment applications. This motion was filed after judgment
was entered against the plaintiff.

Recusal is sought because this Court agreed in November
1999 to teach a three week summer course for Tulane University
School of Law in July 2000. The Court will receive a stipend in
the amount of $5,500, which will cover costs and expenses
associated with teaching the course in Greece. The plaintiff
argues that this teaching requires recusal under 28 U.S.C. §455(a)

A-26

because this is a proceeding "in which [her] impartiality might
reasonably be questioned," and under 28 U.S.C. §455(b)(4) due to
her "financial interest . . . in a party to the proceeding, or any other
interest that could be substantially affected by the outcome of the
proceeding."

Disqualification under Section 455(a) is measured by an
objective standard. Levitt v. University of Texas at El Paso, 847
F.2d 221 (Sth Cir. 1988), cert. denied, 493 U.S. 970 (1989).

Because 28 U.S.C. §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.
Use of the word "might" in the statute was
intended to indicate that disqualification should
follow if a reasonable man, were he to know all
the circumstances, would harbor doubts about the
judge's impartiality.

Potashnick v. Port City Construction Co., 609 F.2d 1101, 1111
(Sth Cir.), cert. denied, 449 U.S. 820 (1980). Discretion is to be
exercised in favor of disqualification if a judge has any question
about the propriety of sitting on a case. Id., 609 F.2d at 1112.
The Court finds that the teaching of the upcoming summer course
at the Tulane Law School does not support recusal under this
objective standard. See also U.S. ex rel Hochman v. Nackman,
145 F.3d 1069 (9th Cir. 1998).

For purposes of Section 455(b)(4), a "financial interest" is
defined as "ownership of a legal or equitable interest, however
small..." 28 U.S.C. §455(d)(4). Section 455(b)(4) "requires
disqualification no matter how insubstantial the financial interest
and regardless of whether or not the interest actually creates an

appearance of impropriety." Liljeberg v. Health Services

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Acquisition Corp., 486 U.S. 847, 860 fn. 8 (1988). However, this
Court finds that there is no "financial interest" in Tulane or in the
subject matter of this litigation for purposes of this section. The
stipend that will be received is for reimbursable costs and
expenses; it is not a salary and does not constitute a legal interest
under this definition.' See Wu v. Thomas, 996 F.2d 271 (IIth Cir.
1993), cert. denied, 511 U.S. 1033 (1994) (adjunct professor who
received no salary not recused). See also Swift v. Trustees of
Indiana University, 1989 WL 15919 (N.D.Ind. 1989). In addition,
the Court finds that there is no "equitable interest" involved here.

However, the Court admits that its research revealed
surprisingly little jurisprudence addressing the appropriateness of
recusal for teaching at a local law school under either subsection
of Section 455. This Court is only one of the many sitting judges
who teach at local law schools, although the terms of
compensation (or lack thereof) would vary among us. In addition,
the Court is mindful of the Code of Conduct for United States
Judges advice on "Law School Teaching":

§3.4-3(a) A judge who teaches at a law school
should recuse from ail cases involving that
[educational] institution as party. The judge
shouid 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

' It is unclear whether the plaintiff is arguing that recusal is
required under Section 455(b)(4) for "any other interest that could
be substantially affected by the outcome of this proceeding.” To
the extent that argument is raised, the Court finds that such an
interest is lacking.

ae

A-28

recusal of judges serving on a university advisory
board.

Unfortunately, this rule does not provide clear guidance either.
The first sentence does not distinguish between paid and unpaid
teaching positions, and it is unclear whether the first sentence's
"that institution" refers only to the law school as a party. In the
second sentence, "that institution" is not mentioned at all, and the
university of which the law school is a party is described as such.’

While this Court believes that recusal is not appropriate, it
would welcome clear guidance from a higher Court on the issue
raised herein. In this ruling, the Court acknowledges its duty to
decide the cases assigned to it. It can not recuse simply because a
party wants it to, or because it has previously ruled against the
party seeking recusal, however attractive such an option might be
in protracted and difficult litigation such as this.’

> Of course. Tulane Law School has no invoivement here.

* The current lawsuit is a derivative of an earlier complex
lawsuit which was dismissed by this Court on a defense motion for
summary judgment and upheld by the Fifth Circuit. Knowledge of
the history of the previous litigation was essential to evaluating the
merits of the current litigation, a knowledge this Court already had
but which would require a new judge to independently amass. This
frankly was a factor in this Court's decision to "keep" the case at
this juncture rather than recuse. But as the Court has previously
advised the Fifth Circuit, the Court has been concerned about the
distraction caused the litigation by Dr. Bernofsky's conviction that
the Court is biased. We have simply felt that, objectively, recusal
is not justified under the circumstances, at least under the current
state of the caselaw, and therefore the Court had an obligation not
to recuse.

A-29

No new arguments are raised pertaining to the motion to
reconsider and/or motion for new trial. The plaintiff's arguments
are best directed to the Court of Appeals.

Accordingly,

IT IS ORDERED that the motion for recusal, and, in the
alternative, to amend judgment and motion for new trial filed by
the plaintiff, Dr. Carl Bernofsky, are DENIED.

New Orleans, Louisiana, this 30 day of May, 2000.

s/__ Helen G. Berrigan

HELEN G. BERRIGAN
UNITED STATES DISTRICT JUDGE

A-30

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT .-

No. 00-30704

CARL BERNOFSKY, DR..,
Plaintiff - Appellant,
versus

ADMINISTRATORS OF THE TULANE EDUCATIONAL FUND,

Defendant - Appellee.

Appeal from the United States District Court for
the Eastern District of Louisiana
(USDC No. 98-CV-2102-C)

Before KING, Chief Judge, REAVLEY and JONES, Circuit
Judges.

PER CURIAM:

The judgment of the district court is affirmed. The
decision of that court against recusal is upheld for the reasons
given by that court's order. On the merits, even if Tulane's
response to the requests for reference be considered as adverse

“Pursuant to STH Cir. R. 47.5, the Court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in STH CIR. R.
47.5.4.

i a i a ee

A-31

employment actions, there was no error of any significance and
Bernofsky presents no evidence of improper motive or
defamation.

AFFIRMED.

KING, Chief Judge, dissenting:

With respect, | disagree with the panel majority on the
matter of Judge Berrigan's recusal. A reasonable person would
view the summer teaching assignment in Greece that Tulane Law
School offered to Judge Berrigan, along with $5,500 to cover her
expenses, as something of a plum. She accepted that assignment
in the midst of this litigation against the Administrators of the
Tulane Educational Fund, indeed on the eve of her decision to
grant summary judgment in favor of the Fund. Under the
circumstances (and with a record devoid of any evidence of
attenuation in the relationship between the Fund and the Law
School), I think that a reasonable person might question her
impartiality. I would reverse the judgment and remand with

instructions to send the case to another judge.

A-32
IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 00-30704

CARL BERNOFSKY, DR
Plaintiff - Appellant
¥.

ADMINISTRATORS OF THE TULANE EDUCATIONAL FUND
Defendant - Appellee

Appeal from the United States District Court for the
Eastern District of Louisiana, New Orleans

ON PETITION FOR REHEARING EN BANC

(Opinion 4/10/01, 5 Cir., " F.3d )
Before KING, Chief Judge, REAVLEY and JONES, Circuit
Judges.

PER CURIAM:

(X) Treating the Petition for Rehearing En Banc as a Petition
for Panel Rehearing, the Petition for Panel Rehearing is DENIED.
No member of the panel nor judge in regular active service of the
court having requested that the court be polled on Rehearing En
Banc (FED. R. APP. P. AND 5TH Cir. R. 35), the Petition for
Rehearing En Banc is DENIED.

A-33

( ) Treating the Petition for Rehearing En Banc as a Petition
for Panel Rehearing, the Petition for Panel Rehearing is DENIED.
The court having been polled at the request of one of the members
of the court and a majority of the judges who are in regular active
service not having voted in favor (FED. R. APP. P. AND 5TH CIR.

R. 35), the Petition for Rehearing En Banc is DENIED.

ENTERED FOR THE COURT:

s/_ Thomas M. Reavley
United States Circuit Judge

REHG-6a

A-34

UNIVERSITY of HOUSTON

Departmen’ of Human Development and Consumer Sciences Houston, TX 77204-6861 Fax: 713/743-4033
713/743-4110

February 7, 1997

Dr. Rune L. Stjernholm

Professor

Department of Biochemistry

Tulane University School of Medicine
1430 Tulane Avenue

New Orleans, LA 70112

Dear Dr. Stjernholm:

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
further 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.

I look forward to hearing from you.
Yours,

s/ Ira Wolinsky

Ira Wolinsky, Ph.D.
Professor of Nutrition
Nutrition Laboratory

A-35

Carl Bernofsky, Ph.D.
6478 General Diaz Street
New Orleans, LA 70124

April 4, 2000

The Hon. Ginger Berrigan, Judge
United States District Court
Eastern District of Louisiana

500 Camp Street

New Orleans, LA 70130

Re: Carl Bernofsky v. Administrators of the Tulane
Educational Fund, USDC ED LA #98-CV-1792 c/w
#98-CV-2102

Dear Judge Berrigan:

I recently learned that you are scheduled to teach a
three-week course in Greece this summer for which Tulane credit
will be given.

The announcement appeared in Tulane Law School's
Summer School Abroad 2000 catalog. Your name is listed under
"Faculty" on p. 29, and your course, "The Judicial Protection of
Human Rights: In Theory and Practice," is described on p. 28.
Copies of these pages are enclosed.

Thus, while Tulane was misleading the U.S. Supreme
Court six months ago by arguing that you were no longer
associated with the University, you were engaged in developing a
curriculum and making arrangements with Tulane administrators
and other Law School faculty.

This conduct defies U.S. recusal statutes and specifically
violates the canon of the Judicial Conference of the United States

A-36

that appears in Guide to Judiciary Policies and Procedures, 1999
Ed., Vol. Il, Chap. V, § 3.4-3(a), at p. V-39.

Your open affiliation with the defendant and deception
regarding this ongoing relationship is incompatible with even the
most remote appearance of impartiality and compels me to seek
all possible means of appropriate redress that are at my disposal.
It is still my hope, however, that you would accept the validity of
the above and choose to recuse from my case against Tulane.

7

Respectfully yours,
s/ Carl Bernofsky

Carl Bernofsky
Tel: (504) 486-4639

CC: Victor R. Farrugia
G. Phillip Shuler, III .

BERRIGAN.O0A

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_2279%3A1. Public record. Not legal advice.