Lawsuit Against Tulane University for Discriminatory Discharge
Supplemental Brief on Behalf of Dr. Carl Bernofsky, Plaintiff-Appellant
(Case No. 97-30575, U.S. Court of Appeals for the Fifth Circuit, January 9, 1998) Text only version. Images of attached exhibits (45 pages) are currently not available.
IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT ____________________ 97-30575 ____________________ DR. CARL BERNOFSKY Plaintiff - Appellant v. TULANE UNIVERSITY MEDICAL CENTER, ET AL. ADMINISTRATORS OF THE TULANE EDUCATIONAL FUND Defendant - Appellee _________________________________________ Appeal from the United States District Court for the Eastern District of Louisiana, Civil Action No. 95-0358 the Hon. Ginger Berrigan, Judge, Presiding _________________________________________ MOTION FOR LEAVE OF COURT TO ALLOW APPELLANT TO FILE SUPPLEMENTAL BRIEF
NOW INTO COURT, through undersigned counsel, comes appellant - plaintiff, Dr. Carl Bernofsky ("Dr. Bernofsky"), who respectfully requests permission to file a supplemental brief in this matter to address incorrect factual statements made by Tulane during oral argument concerning Dr. Jen-sie Tou and assertions that Dr. Bernofsky would likely have continued his employment at Tulane if only he had taught.
Respectfully submitted,
Roger Phipps
Roger D. Phipps #20326PHIPPS & PHIPPS
210 Baronne Street, Suite 1410
New Orleans, Louisiana 70112
(504) 524-2298
On Appeal from the United States District Court for the Eastern District of Louisiana, New Orleans Division BRIEF OF APPELLANT
ROGER PHIPPS EVANTHEA P. PHIPPS LOUISIANA STATE BAR NO. 20326 LOUISIANA STATE BAR NO. 19857 PHIPPS & PHIPPS PHIPPS & PHIPPS 210 BARONNE STREET, SUITE 1410 210 BARONNE STREET, SUITE 1410 NEW ORLEANS, LOUISIANA 70112 NEW ORLEANS, LOUISIANA 70112 TELEPHONE NO: (504) 899-0763 TELEPHONE NO: (504) 899-0763
ATTORNEYS FOR DR. CARL BERNOFSKY
CERTIFICATE OF INTERESTED PERSONS No. 97-30575 DR. CARL BERNOFSKY v. TULANE UNIVERSITY MEDICAL SCHOOL (ADMINISTRATORS OF THE TULANE EDUCATIONAL FUND)
Pursuant to Fifth Circuit Local Rule 27.5, Appellant hereby certifies that the following is a list of all parties who have an interest in the outcome of this suit:
Dr. Carl Bernofsky Appellant
Roger D. Phipps, Counsel for Appellant
Evanthea P. Phipps, Counsel for AppellantMr. G. Phillip Shuler, III, Esq., Counsel for Apellee
Ms. Julie D. Livaudais, Esq., Counsel for Appellee
Mr. John Beal, Esq., Counsel for AppelleeRoger Phipps
Roger D. Phipps
Louisiana Bar No. 20326
(Page numbers refer to original document pages and here are hyperlinked to the appropriate reference.) TABLE OF CONTENTS
CERTIFICATE OF INTERESTED PERSONS i TABLE OF CONTENTS ii STATEMENT OF ISSUES 1 BRIEF STATEMENT OF FACTS 1 SUMMARY OF ARGUMENT 1 ARGUMENT 2 2 6 CONCLUSION 7 CERTIFICATE OF SERVICE 8 CERTIFICATE OF COMPLIANCE 8
STATEMENT OF ISSUES I. Whether Dr. Tou Was On Tenure Track For Seven Years.
II. Whether Dr. Bernofsky Was Terminated For A Performance Issue, i.e., Teaching.
BRIEF STATEMENT OF FACTS At oral argument, Tulane asserted that Dr. Jen-sie Tou was hired on tenure track and was on tenure track for seven years prior to receiving tenure. Dr. Tou was not hired on tenure track. Moreover, the record shows that Dr. Tou was on tenure track for only one year (R.1439, February 22, 1989 letter from Tulane Chancellor John J. Walsh, M.D. to Tulane Dean Blackwell Evans, M.D.).
Also, Tulane asserted for the first time during oral argument that "He might still be there today if he had said that he would. But, he refused." After the district court rendered summary judgment, Mr. John Beal, Tulane's Associate General Counsel, admitted in writing, "His dismissal was not based upon any performance issues, but was strictly a financial decision due to a lack of research funds."
SUMMARY OF ARGUMENT Certain of Tulane's statements concerning Dr. Tou and Dr. Bernofsky's teaching made during oral argument must be corrected.
ARGUMENT I. Whether Dr. Tou Was On Tenure Track For Seven Years.
At oral argument, Tulane asserted that Dr. Jen-sie Tou was hired on tenure track and was on tenure track for seven years prior to receiving tenure.
JUDGE HIGGINBOTHAM:
What about the other person who did switch over?
MR. SHULER:
Dr. Tou, that's correct. Dr. Tau -- she calls her Tou. I call her Tou. But, it's Jen-sie Tou. And, she started out at Tulane in 1972 and was tenure track for seven years, but during that time, she got a very prestigious grant that precluded her teaching. Teaching, service, scholarship being important to tenure precluded her --
JUDGE HIGGINBOTHAM:
Let me ask you this: She came in as a tenure track?
MR. SHULER:
She came in as tenure track. Then, she got this grant which said you can only teach five percent (5%) of the time. So, they moved her over to be a research professor, a non-tenure track person like him, also. But then, later, they looked at her again when she was again teaching extensively and said she had been research track. We're going to give her credit for that, and we're going to convert her, okay. They also had, obviously, good reason to do that, because Dr. Tou was making important contributions to the department and had been tenure track at one time. (Appellate transcript pages 33-4.)
Tulane erroneously stated that Dr. Jen-sie Tou ("Tou") held a tenure-track position for seven years and did not have a "special" appointment during that period of time. Both assertions are incorrect. As detailed below, Tou held a regular tenure-track position for only a single year, from July 1, 1979 to July 1, 1980 and had "special" appointments both before and after that period.
Tou entered Tulane University in 1965 as a graduate student in the Department of Biochemistry, where she received her Ph.D. degree in 1968. She was a postdoctoral fellow (1968 to 1971) in that Department when the chairmanship was taken over by Dr. Rune Stjernholm ("Stjernholm") in 1971. Stjernholm kept Tou employed in his laboratory through a succession of appointments: instructor (1971 to 1973), assistant professor (1973 to 1980), research associate professor (1980 to 1989), and finally tenured associate professor (R.542 [Bench Book 351]).(1)
When Tou became assistant professor in 1973, her appointment (as was Bernofsky's in 1975) was a "special" appointment. Tou's "special" status is reflected in the letter of Dec. 5, 1974 from Chancellor Walsh to President Longenecker [Bench Book 384d](2) and her Personnel Action Form, effective Nov. 1, 1974 [Bench Book 384d]. (3)
The status of Tou's assistant professorship remained the same until July 1, 1979, when it was changed from "special" to regular tenure-track [Bench Book 384d](4) at about the same time that Tulane's Personnel and Honors Committee reviewed her credentials and denied her tenure [Bench Book 360].(5) One year later, Tou's credentials were again reviewed, and once again she was denied tenure (R.1440 [Bench Book 365,367,368]).(6) However, instead of being required to leave Tulane, Tou was given another "special" appointment as Research Associate Professor [Bench Book 366]. (7) Thus, Tou held a regular tenure-track position for only a single year, from July 1, 1979 to July 1, 1980 [Bench Book 362a], (8) a fact noted by Chancellor Walsh before Tou was administratively granted automatic tenure nine years later (R. 1439 [Bench Book 378]). (9)
During the nine years that Tou was a research associate professor, essentially all of her salary was paid from Departmental and other sources available to Stjernholm, while her research efforts were funded by small grants from local agencies [Bench Book 351].(10) During this time she was unable to attract major grant funding.
In January, 1989, in response to a new request by Stjernholm to again secure tenure for Tou, Dean Hamlin wrote to Chancellor Walsh, "In looking at the number of years that Dr. Tou has served on the faculty, I feel that if she is converted to a regular appointment that this would require that she be given automatic tenure." (R.1431 [Bench Book 373b]) (11) (Emphasis added.). Both Chancellor Walsh (R.1437 [Bench Book 381])(12) and President Kelly (R.1436 [Bench Book 382])(13) concurred, and thus Tou became a tenured member of the Department of Biochemistry. Tou's appointment was subsequently made retroactive by ten months, thereby reducing to nearly eight years the apparent time she previously spent in a "special" research appointment (R.1435 [Bench Book 383]). (14)
Tulane invoked the automatic tenure rule for Tou despite the fact that the new appointment represented her third conversion (according to Tulane's 1986 rules, only one conversion is permitted, and then within a seven-year period), and despite the fact that she had twice been denied tenure because of poor academic performance.
II. Whether Dr. Bernofsky Was Terminated For A Performance Issue, i.e., Teaching.
Tulane asserted for the first time during oral argument that Dr. Bernofsky would probably still be at Tulane today if he had agreed to teach.
MR. SHULER:
. . . He might still be there today if he had said that he would. But, he refused. (Appellate transcript 33.)
After the district court rendered summary judgment, Dr. Bernofsky obtained a document that shows that this statement is incorrect. Mr. John Beal, Tulane's Associate General Counsel, admitted, "His dismissal was not based upon any performance issues, but was strictly a financial decision due to a lack of research funds." (See Exhibit B, February 21, 1997 letter from John Beal to Ira Wolinsky, Ph.D.; indisputably teaching is a performance issue.)
FOOTNOTES
1. See Tou's CV and the derived "timeline."
2. Supporting exhibits are from the bench book. Motions by plaintiff to supplement the record with bench book documents (Docket items 129 of 7/15/97 and 131 of 7/24/97) were denied by Judge Berrigan (Docket items 130 of 7/16/97 and 132 of 7/25/97, respectively).
3. Faculty Personnel Action Form showing Tou's "special" appointment as assistant professor through Oct. 31, 1976.
4. Letter of June 19, 1979 from Dean Hamlin to Tou.
5. Minutes of Executive Faculty Meeting, June 26, 1979.
6. Minutes of Executive Faculty Meeting of June 24 and 26, 1980, and attached file memo of July 1, 1980.
7. Minutes of Personnel and Honors Committee, June 25, 1980.
8. Letter of June 19, 1980 from Dean Hamlin to Tou.
9. Letter of Feb. 22, 1989 from Chancellor Walsh to Dean Evans.
10. See Tou's CV.
11. Letter of Jan. 31, 1989 from Dean Hamlin to Chancellor Walsh.
12. Letter of Mar. 16, 1989 from Chancellor Walsh to President Kelly.
13. Letter of Mar. 30, 1989 from President Kelly to Chancellor Walsh.
14. Letter of May 24, 1989 from Dean Fulginiti to Tou.
CONCLUSION Genuine issues of material facts are in dispute. The District Court's grant of summary judgment should be reversed.
Respectfully submitted,
Roger Phipps
Roger D. Phipps #20326
Evanthea P. Phipps #19857PHIPPS & PHIPPS
ATTORNEYS AT LAW
210 Baronne Street, Suite 1410
New Orleans, Louisiana 70112
(504) 524-2298
CERTIFICATE OF SERVICE I certify that a copy of the above and foregoing has this day been forwarded to all known counsel of record by depositing a copy of same in the United States mail, properly addressed, and/or by hand delivery.
New Orleans, Louisiana this 9th day of January, 1998.
Roger Phipps
Roger D. Phipps
CERTIFICATE OF COMPLIANCE Pursuant to 5th Cir. R. 32.2.7.(c), the undersigned certifies this brief complies with the type-volume limitations of 5th Cir. R. 32.2.7.(b).
1. EXCLUSIVE OF THE EXEMPTED PORTIONS IN 5th Cir. R. 32.2.7.(b)(3), THE BRIEF CONTAINS 2026 words in monospaced typeface; the Brief is left justified only.
2. THIS BRIEF HAS BEEN PREPARED in monospaced typeface using Word Perfect 5.1; Courier 10 cpi.
3. IF THE COURT SO REQUESTS, THE UNDERSIGNED WILL PROVIDE AN ELECTRONIC VERSION OF THE BRIEF AND/OR A COPY OF THE WORD OR LINE PRINTOUT.
4. THE UNDERSIGNED UNDERSTANDS A MATERIAL MISREPRESENTATION IN COMPLETING THIS CERTIFICATE, OR CIRCUMVENTION OF THE TYPE-VOLUME LIMITS IN 5th Cir. R. 32.2.7, MAY RESULT IN THE COURT'S STRIKING THE BRIEF AND IMPOSING SANCTIONS AGAINST THE PERSON SIGNING THE BRIEF.
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