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Initial Lawsuit Order and Reasons Plea to Reconsider Appeal Brief Retaliation Judge Berrigan

"The challenger may find that facts, law, precedent, fairness and reason are all ignored, and that judicial actions ensure that the powerful will prevail and the challenger will not." -- Lawrence R. Velvel, 1997

Lawsuit Against Tulane University for Retaliation and Defamation
Pre-Trial Order
(Case No. 98-1792 c/w 98-2102, January 4, 2000)

The Pre-Trial Order was signed by the respective counsel for Bernofsky and Tulane at a pre-trial conference held in Judge Berrigan's chambers on January 4, 2000 in preparation for a trial that was scheduled for January 18, 2000.  However, the very next day, Judge Berrigan postponed the trial, withheld the Pre-Trial Order from the court record, and handed Tulane a second opportunity to file a Motion for Summary Judgment.  Upon receipt of that motion, she promptly ruled in favor of Tulane.  Judge Berrigan denied Bernofsky a trial on the merits, dismissed his every cause of action, and taxed him for Tulane's legal costs.  The completed, but undocketed, Pre-Trial Order is reproduced below.  The spoliation of this court document clearly indicates Judge Berrigan's prejudice against Bernofsky and favoritism towards Tulane.

Ruling by summary judgment not only violates the core principles of English common law, it also has been deemed unconstitutional.  The Seventh Amendment of the U.S. Constitution states: "In suits at common law ... the right of trial by jury shall be preserved, and no fact tried by jury shall be otherwise re-examined in any Court of the United States than according to the rules of the common law."

Following the summary judgment of April 18, 2000 that favored Tulane, Judge Berrigan, as an adjunct professor in Tulane's Law School, received an emolument having the appearance of a quid pro quo when she accepted $5,500 from Tulane to teach a summer course in July, 2000 on the Greek Isle of Thessaloniki.  Nevertheless, the Fifth Circuit Court of Appeals deemed Judge Berrigan's conduct in this matter as not disqualifying, despite the objection of then Chief Judge Carolyn D. King.

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UNITED STATES DISTRICT COURT FOR
THE EASTERN DISTRICT OF LOUISIANA  

* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *	*
DR. CARL BERNOFSKY	*	CIVIL ACTION NO. 98-1792
Plaintiff	*	C/W 98-2102
VERSUS	*
	*	SECTION "C" (5)
ADMINISTRATORS OF THE TULANE	*
EDUCATIONAL FUND	*
Defendant	*	JUDGE BERRIGAN
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *	*

 

PRE-TRIAL ORDER

1. PRE-TRIAL CONFERENCE
   The Pre-Trial Conference was held before the Honorable Ginger Berrigan, U.S. District Court Judge, on January 4, 2000 at 9:00 a.m.

   APPEARANCES OF COUNSEL

   For Plaintiff:

   Victor R. Farrugia Victor R. Farrugia, PLC 228 St. Charles Avenue, Suite 1028 New Orleans, Louisiana 70130-2610 Telephone: (504) 525-0250

    

   For Defendant:

   Julie Livaudais and G. Phillip Shuler Chaffe, McCall, Phillips, Toler & Sarpy 2300 Energy Centre 1100 Poydras Street New Orleans, LA 70163 Telephone : (504) 585-7000

   PARTIES

   Plaintiff, Carl Bernofsky ("Bernofsky"), is a citizen of the United States and a resident of the State of Louisiana.

   Defendant, Administrators of the Tulane Educational Fund, better known as Tulane University, is a non-profit educational institution domiciled in New Orleans, Louisiana.

   JURISDICTION

   This action is brought pursuant to Title VII of the Civil Rights act of 1964, 42 U.S.C. §2000e et. seq.; and the laws of the state of Louisiana.  Jurisdiction over the federal issues is invoked pursuant to 28 U.S.C. §1331.  Jurisdiction is invoked over the state law claims pursuant to the doctrine of pendent claim jurisdiction.  Jurisdiction is not contested.

   PENDING OR CONTEMPLATED MOTIONS

   Presently, no motions are pending.

   Plaintiff may file Motions in Limine regarding the admissibility of certain documentary evidence and of certain witness testimony.

   Defendant will file a Motion in Limine prior to trial asking this Honorable Court to determine in advance of trial on the merits the parameters of admissible evidence concerning Dr. Bernofsky's termination from Tulane. It is apparent to defense counsel, based upon plaintiff's discovery requests and exhibit list, that he intends to virtually re-litigate, indeed challenge, the reasons surrounding his separation from employment at Tulane. Defendant's position is that, of course, these claims are res judicata due to the earlier litigation, and irrelevant herein. Defendant's position is that Plaintiff should be ordered not to adduce evidence challenging the reasons for his termination, as that claim has been already judicially decided.

   Defendant offers the following suggestion:

   It would also be helpful for the Court to determine prior to trial what type of statement will be made to the jury concerning Dr. Bernofsky's prior litigation with Tulane, the disposition of that litigation, and the reasons for Dr. Bernofsky's termination by Tulane.

   BRIEF SUMMARY OF MATERIAL FACTS

1. Claimed by Plaintiff
   Dr. Carl Bernofsky was employed on the faculty of Tulane University School of Medicine ("Tulane") for nearly 20 years, until he was fired on April 21, 1995.

   Bernofsky filed an action on January 31, 1995, in federal court designated as Dr. Carl Bernofsky v. Tulane University Medical School (Civil Action No. 95-358), alleging race discrimination claims under 42 United States Code, Section 1981. These claims were joined with various other state law based claims and were served on Tulane's counsel, Mr. John R. Beal.

   On February 10, 1995, Bernofsky filed a charge (No. 270-95-0754) with the United States Equal Employment Opportunity Commission ("EEOC") alleging race discrimination under Title VII of the Civil Rights Act of 1964 as amended, 42 United States Code Section 2000e et seq. ("Title VII"), and age discrimination under the Age Discrimination in Employment Act ("ADEA"). A "right to sue" notice was mailed by the EEOC on Aug. 22, 1995.

   Upon receiving notice of these claims, Tulane immediately assumed a retaliatory posture and utilized every means at its disposal to exercise its influence to Bernofsky's detriment. Tulane retaliated by terminating Bernofsky using methods reserved only for those who are unfit, incompetent, or guilty of gross personal misconduct. Although Bernofsky had an appointment contract with Tulane that ended on June 30, 1995, it terminated him on April 21, 1995. Tulane fired Bernofsky despite the fact that Bernofsky had met Tulane's fund-raising demands before the arbitrarily-established deadline of February 28, 1995. Further evidence of retaliation by Tulane ranged from denying Bernofsky health benefits to subverting his efforts to obtain employment locally and elsewhere.

   When Bernofsky attempted to seek employment thoughout the year of 1997, Tulane retaliated against him by failing to follow the normal university procedure of providing references for professors who have been employed by Tulane. Having been on the faculty at the Tulane Medical School for nearly 20 years, Bernofsky listed Dr. Karam, Chairman of the Department of Biochemistry, Dr. Stjernholm former chairman of the Department, and Dr. Steele, a retired Professor from the Department, all of the Tulane University School of Medicine, as references. The instructions of Associate General Counsel, Mr. Beal, to these three professors not to answer the request for references concerning Bernofsky were acts of retaliation. Mr. Beal admitted that he instructed the three professors not to respond to the request of Dr. Wolinsky of the University of Houston. On two separate occasions, Michigan Technological University, a prospective employer, requested letters of reference for Bernofsky, but Tulane refused to respond, leaving the employer with no other choice but to consider other candidates for the positions it sought to fill. Bernofsky was attempting to get a tenured position at Michigan Tech and was even willing to accept an untenured temporary position to achieve his goal of obtaining a tenured position.

   Tulane further retaliated against Bernofsky, and also defamed Bernofsky, when Mr. Beal sent a letter on February 21, 1997, to Dr. Wolinsky of the University of Houston, which letter [see PDF] falsely stated that Bernofsky brought litigation against Dr. Karam personally and falsely stated that Bernofsky's position was eliminated because he no longer had any research funds to support his position. Bernofsky did not sue Dr. Karam personally and, at the time he was fired, Bernofsky did have some research funds available to support his position, ie., the Air Force grant.

   The above two false statements were maliciously published by Tulane, they were defamatory to Bernofsky, and they caused injury to Bernofsky.

   Bernofsky will prove that Tulane retaliated against him because of his participation in protected activities and will prove the maliciousness of Mr. Beal's letter by demonstrating a pattern of retaliation and malice by Tulane and its agents, Dr. Karam and Mr. Beal, from the time that he filed his lawsuit in January, 1995, until the present.

   In addition to the incidents mentioned above, specific examples of retaliation and malice against Bernofsky after he filed his lawsuit are as follows:

Tulane's Termination Was Retaliatory.

Prior to Dr. Karam's chairmanship of the Biochemistry Department, Bernofsky had lost major grant support for a period of about two (2) years. Nevertheless, Tulane allowed him to work for little salary without ever threatening termination, and major grant support was subsequently restored.

In 1995, following Bernofsky's lawsuit, Tulane retaliated by terminating Bernofsky on the false premise that he had insufficient grant funds for his salary. Not only did Tulane not have a policy of forced termination based on a temporary loss of grant funding, but Bernofsky had received notice of a new $250,000 grant from the Air Force ten (10) weeks before he was terminated on April 21, 1995.

Tulane Disseminated False And Defamatory Information.

Tulane defamed Bernofsky by informing Teachers Indemnity and Annuity Association ("TIAA") that he was terminated because he had "...insufficient research funds to support [his] salary and research." TIAA serves professors and universities almost exclusively. Tulane's statement was not only untrue, it was wholly gratuitous because TIAA was concerned only with the date of Bernofsky's termination (April 21, 1995) for the purpose of determining eligibility for disability benefits.

Tulane's Method Of Termination Was Retaliatory and Malicious.

Tulane slandered Bernofsky by terminating him prior to the specified term (June 30, 1995) of his yearly contract with Tulane, thereby tainting him with the stigma that is reserved for those who are terminated for adequate cause.

According to Article V, Section 1 of the 1976 Faculty Handbook (page 28), termination before the end of the specified term may be effected only for "adequate cause." Article V, Section 2 defines adequate cause as: unfitness to teach, incompetence, lack of scholarly objectivity and integrity, serious misuse of the classroom or of academic prestige, serious interference with the academic freedom of others, gross personal misconduct, or conviction of participation or conspiracy to overthrow the government by force. In the eyes of the academic community, these are the kinds of egregious offenses of which Dr. Bernofsky stands accused by inference. Tulane's eagerness to terminate Dr. Bernofsky before the end of the specified term was an act of retaliation that was deliberately intended to damage his reputation, inflict emotional distress, and undermine his future prospects for academic employment.

In 1996, Bernofsky received an invitation from Dr. William A. Pryor of Louisiana State University, Baton Rouge, to apply for a position in Environmental Organic Chemistry with particular emphasis on free radicals. This is precisely the area of expertise for which Bernofsky had been awarded a grant from the Air Force in 1995. Bernofsky was well known to Pryor, who had invited him to present a seminar in Baton Rouge a number of years earlier. Both scientists also attended the same conferences on free radicals in biology and medicine. Bernofsky applied for the position and listed three prominent free-radical experts as references. However, after Bernofsky explained the circumstances of his termination from Tulane, he never heard from Pryor again nor from any of the other individuals involved with this position.

Tulane Blocked an Employment Opportunity with the SRRC.

Tulane retaliated against Bernofsky by insisting on conditions that precluded the transfer of his research program to another local institution, the Southern Regional Research Center ("SRRC"), a branch of the United States Department of Agriculture ("USDA"). The official policy adopted by Tulane was expressed by its counsel, John Beal, in his letter of May 30, 1995 to Bernofsky's attorney, Roger D. Phipps, which stated, in pertinent part:

"There is no intention on Tulane's part to allow Dr. Bernofsky to maintain laboratory space or an office as an employee of the USDA.  That has never been offered and will not be offered."

In 1995, Dr. Bernofsky investigated the possibility of employment with the SRRC. The Director, Dr. J. Patrick Jordan, sought to intervene on Bernofsky's behalf in a manner that would be of mutual benefit to SRRC and Tulane. Dr. Jordan attempted to create a collaborative relationship with Tulane that would permit Bernofsky to transfer his laboratories to the SRRC and work as a Research Collaborator, utilizing funds from his new $250,000 research grant from the Air Force to support his salary.

Bernofsky met on several occasions with Dr. Jordan to discuss the transfer of his research program to the SRRC facility and to plan for the utilization of Bernofsky's new grant and the use of the $250,000 EPR spectrometer that Bernofsky had earlier brought to Tulane, and which was vital to his research program.

Dr. Jordan formed an ad-hoc SRRC committee that formulated a Draft Proposal that was subsequently submitted to Tulane. In an effort to negotiate a working relationship with Tulane based on this Draft Proposal, Jordan conferred with Tulane officials, both individually and in formal group meetings. These officials included Dean James Corrigan, Chancellor John La Rosa, Associate Dean of Finance Larry Baudoin, Dr. William Toscano, Chair, Department of Environmental Health Sciences, and Dean Susan Allen.

Despite Dr. Jordan's repeated efforts and the indirect funding to Tulane that Bernofsky's Air Force grant would provide, Tulane was unbending in its refusal to permit Bernofsky any space that would make it possible for him to perform the work described in the Air Force grant. Thus, Tulane bears full responsibility for the failure of the two institutions to cooperate in salvaging Bernofsky's research program and, ultimately, his scientific career.

Tulane Blocked Disability Benefits from TIAA.

Bernofsky developed a malignancy that was initiated during that period of intensive hostility directed against him by his Department Chair. His tumors were first observed on May 9, 1995. They were subsequently identified as malignant after they were surgically removed on June 5, 1995. Bernofsky then underwent a lengthy period of chemotherapy, radiation treatment, and recuperation.

Bernofsky applied to both the Social Security Administration (SSA) and Teachers Insurance and Annuity Association (TIAA) for benefits. Bernofsky had purchased disability insurance from TIAA since 1975.

Following an appeal process in which Bernofsky's medical records were carefully scrutinized, SSA awarded him benefits that were based on a disability period of June 5, 1995 to January 1, 1997.

In contrast, Tulane took steps to deny Bernofsky's application to TIAA on the basis that he was terminated on April 21, 1995, which was prior to the identification of his disability on June 5, 1995.

Bernofsky argued that he was entitled to disability benefits because his cancer was diagnosed before the term of his yearly contract with Tulane, which was June 30, 1995. However, Tulane insisted that Bernofsky's annual appointment letter, which was signed by the Dean, was not a true contract, and thus Bernofsky was not entitled to disability benefits. This argument was then used by TIAA to deny Bernofsky benefits. Because insurance benefits from TIAA would have had no monetary consequence for Tulane, Bernofsky contends that Tulane's actions were retaliatory in nature and were intended to inflict emotional distress and injure him financially.

More important is Tulane's ambiguous treatment of the contract issue, which permits it to be selectively misleading according to the purpose at hand. The Dean's appointment letters are, of course, clearly understood by him as well as their recipients as constituting a contract. However, during a lapse of honesty about the subject, he was stopped cold by Tulane's lawyers.

EXAMINATION BY MR. FARRUGIA:

Q.   Are there any research professors at Tulane who have employment contracts?

A.   Do we have some, John?  [turning to John Beal]

MS. LIVAUDAIS:

You have to answer what you know.

THE WITNESS:

I don't remember.  I don't know.  I mean, of course, all of our faculty have employment contracts.  Do you want to expand on that a moment?  What kind of employment contract?

(Whereupon, a short break was taken.)

Deposition of Dean Corrigan, Nov. 11, 1999, page 42 (bold emphasis added).

Tulane Retaliated By Seizing Equipment, Supplies And Research Materials.

In 1975, when Bernofsky transferred his research program from the Mayo Clinic to Tulane, he brought with him approximately $100,000 worth of equipment and supplies that had been purchased with grant funds previously awarded to him. Following his arrival at Tulane, he spent about $30,000 of his own personal funds to furnish other equipment and supplies that were needed in his research. Additionally, a portion of the $2.17 million in grant funds that Bernofsky ultimately brought to Tulane was also used to obtain equipment and supplies for his program. Only a small fraction, approximately 10% of Bernofsky's equipment and supplies, were acquired with funds supplied directly by Tulane. Bernofsky provided Tulane with a listing of the latter items.

Bernofsky asserts that the items acquired with his own personal funds were his own personal property, and that all other items obtained with grant funds, or lent to him from other institutions, were eligible for transfer to another research facility.

On May 3, 1995, Tulane's Assistant General Counsel, John Beal, ordered Bernofsky's office and laboratories to be locked, and Bernofsky was subsequently permitted to remove only personal belongings and papers from his office. All remaining equipment and supplies, including those items that were Bernofsky's own personal property, were appropriated by Tulane and redistributed to other Tulane employees following the collapse of negotiations with the Southern Regional Research Institute for the transfer of Bernofsky's newly-funded research program.

Tulane Retaliated By Denying Common Professional Rights.

During the 4th quarter of 1995, Tulane communicated with the Program Manager of Bernofsky's Air Force grant, Dr. Walter J. Kozumbo, regarding the return of grant funds to the Air Force. When Kozumbo requested Bernofsky's forwarding address and home telephone number, Tulane feigned ignorance and would not reveal it. Bernofsky learned of this incident when he later contacted Kozumbo to discuss the failure of negotiations with Tulane for the transfer of his research program to the Southern Regional Research Institute. Earlier, Kozumbo had voiced his support for such a transfer in discussions with SRRC Director, Dr. Patrick Jordan.

Following Bernofsky's termination, Department Chair Dr. Jim D. Karam instructed his Office Manager, Ms. Carol Uhlich to intercept Bernofsky's mail and other communications. Below, Bernofsky cites six (6) documented instances where important mail was destroyed or diverted, and he suspects that this retaliatory practice extended beyond these known instances.

On January 17, 1997, the journal Immunology Today faxed an inquiry to the Department of Biochemistry asking why Bernofsky had not responded to their request that he review a manuscript in his field that they had submitted to him several weeks earlier. Bernofsky was never informed of this manuscript or the faxed inquiry, and it would appear that the manuscript submitted to him at the Department had been discarded.

On July 11, 1995, the Journal of Biological Chemistry attempted to contact Bernofsky via fax concerning an expedited review of a manuscript in his field. An immediate response was requested. Instead of forwarding or informing Bernofsky of the fax, the Department placed it in the mail, whereupon it was delivered three days later.

Being chosen to review a submitted manuscript is an important recognition of expertise in a subject area, and a refusal to participate in the review process is viewed by the academic community as a breach of collegiality. Worse yet, delaying the publication of a colleague's work by neglecting to respond to a received manuscript is seen as an irresponsible act that can have grave consequences to one's reputation. The Biochemistry Chair, Jim Karam, knew this when he gave orders to intercept professional correspondence addressed to Bernofsky.

In December, 1996, the National Institutes of Environmental Health Sciences, a granting agency, sent Bernofsky a packet of materials. Bernofsky never received or was informed about this packet. It was returned to the agency with instructions that it be forwarded to the Department Chair, Dr. Jim Karam.

In September, 1997, the American Institute for Cancer Research, one of Bernofsky's former granting agencies, also sent him a packet of materials. Bernofsky neither received nor was informed about this packet. It was returned to the agency with instructions that it be forwarded to the Department Chair, Dr. Jim Karam.

During the 2nd quarter of 1997, the R. R. Bowker company sent Bernofsky the forms required to update his biography, which is published in the prestigious reference work, American Men & Women of Science. Because Bernofsky was never informed of this important request, it would appear that it had been discarded. Bernofsky discovered Tulane's negligence when he contacted the publisher to inquire when the next update forms were to be submitted to its biographees. Upon learning that Tulane did not forward their update request, which was long overdue, the publisher arranged to expedite Bernofsky's update by fax.

Bernofsky's last scientific research work was published in the July 19, 1995 issue of Molecular and Cellular Biochemistry by Kluwer Academic Publishers, located in The Netherlands. Bernofsky ordered 150 reprints of his article. Reprints are used in support of progress reports, grant applications, promotions, job placements and to fulfill the requests of interested scientists for copies of the published work.

The shipment of reprints was received in the Department on Tuesday, Sept. 19, 1995, during a period when Mrs. Bernofsky, acting on Dr. Bernofsky's behalf, was in contact every Thursday afternoon with the Department's Office Manager, Carol Uhlich, for the purpose of transferring liquid nitrogen into cryogenic storage tanks that were still located at Tulane.

However, instead of informing Mrs. Bernofsky or Dr. Bernofsky that three boxes of reprints had arrived, Uhlich refused to accept the shipment and immediately had it returned to the publisher.

In November, 1995, after receiving requests from colleagues for these reprints, Bernofsky queried the editors of Molecular and Cellular Biochemistry about their fate. They reported that the shipment had been received, refused, and returned by the Tulane Department of Biochemistry. Bernofsky was then obliged to refinance shipment of the reprints from The Netherlands to his home in New Orleans. Tulane Receiving Department Supervisor, Mr. Robert D. Blackerby, later verified to Mrs. Bernofsky that Carol Uhlich had authorized the return. Bernofsky contends that the many retaliatory and malicious acts by Tulane, such as those illustrated above, were intended to harm him professionally and inflict emotional distress. They represent a continued pattern of defamation, slander, and retaliation that has been directed against him.

2. Claimed by Defendant
   These consolidated lawsuits are claims for post-employment retaliation and defamation concerning actions and inactions by Tulane in 1996 and 1997, long after Dr. Bernofsky was separated from employment there. It is plaintiff's contention that Tulane has prevented him from obtaining employment at any other university or research institution. The gravamen of plaintiff's complaint concerns a letter written by Tulane's Associate General Counsel John R. Beal in February, 1997 to Dr. Ira Wolinsky at the University of Houston. This letter was in response to Wolinsky's solicitation of reference letters on Bernofsky from Dr. Jim Karam, Biochemistry Department Chairman, Dr. Richard Steele, retired Biochemistry Professor, and Dr. Rune Stjernholm, Professor of Biochemistry. At the time, Bernofsky was in litigation with Tulane over his separation from employment. The Beal letter explained to Dr. Wolinsky that the three references would not be responding "because of pending litigation brought by Dr. Bernofsky against Dr. Karam personally and against the University." The letter continued that Bernofsky had been a research professor at Tulane but that his position was eliminated because he "no longer had any research funds to support his position." It is plaintiff's contention that this letter prevented him from obtaining employment at University of Houston. One other prospective employer contacted the Tulane references, namely Michigan Technological University. No one from Tulane responded to the inquiry from Michigan. Therefore, the only contact, written or oral, that occurred between anyone at Tulane and any potential employer of Dr. Bernofsky is the letter from John Beal to the University of Houston.

   It is Defendant's position that Beal's letter is an accurate description of the reasons for Dr. Bernofsky's separation from Tulane. For numerous years prior to his termination, plaintiff had failed to generate sufficient research funds to support his salary. The two-year Air Force grant that Bernofsky received in 1995 was not sufficient to support his salary; indeed the grant allowed only $13,000 per year to be allotted to Dr. Bernofsky's salary. Further, Beal's statement that the litigation was against Dr. Karam personally is true because the entire lawsuit was complaining of actions of Dr. Karam. Dr. Karam was clearly the target of the litigation existing at the time between Tulane and Dr. Bernofsky, and Beal never made any representation that Dr. Karam was an individual defendant. Plaintiff was terminated from Tulane because he consistently failed to generate sufficient funds to support his salary, a requirement for a research professor at Tulane, and because his overall academic performance was unsatisfactory. The Beal letter was an attempt to give the most positive view of his separation: it did not mention the unsatisfactory performance and specifically disavowed any negative information. It was a prudent business decision for the University to consolidate communications about a litigant to the Office of the General Counsel.

   Plaintiff admits that he applied for employment at some fifty other universities and institutions but was either summarily rejected or never heard anything from all fifty of these potential employers. The only two potential employers that ever indicated to plaintiff that there might be an available position for him were the University of Houston and Michigan Technological University. Dr. Karam, Dr. Steele and Dr. Stjernholm never had contact with any potential employers of Dr. Bernofsky. The inquiries that each received from Michigan Technological University and University of Houston were responded to only by John Beal. Beal responded only to University of Houston. Bernofsky has admitted that he has no evidence of any other communication to Tulane by a potential employer, or from Tulane to a potential employer.

   Significantly, Bernofsky never contacted Dr. Karam, Dr. Steele, or Dr. Stjernholm to request that they be job references during his job search. Accordingly, none of these gentlemen was aware that he would be contacted by potential employers. When they did receive letters from University of Houston and Michigan Technological University, they were concerned about how to respond given the existing litigation and the fact that they had had no conversation with Dr. Bernofsky about being a reference. Further, Dr. Karam testified that he would not have been able to give Dr. Bernofsky a glowing reference but that if Dr. Bernofsky had telephoned him to discuss a reference letter they could perhaps have worked out a favorable reference concerning his research abilities in the field of free radicals. John Beal testified that Tulane has in the past worked out reference letter issues with former employees with whom the University is in litigation; however, neither plaintiff nor his counsel inquired as to such a possibility. Even after Dr. Bernofsky became aware of the Beal letter to Houston and the fact that no one from Tulane had responded to the letter from Dr. Campbell at Michigan Technological, he never contacted his three listed references to discuss a possible letter of recommendation. Nor did he provide names of other possible references to Drs. Wolinsky and Campbell.

   It is also significant that neither of the two universities that did contact Tulane had an active job search or an open position at the time Bernofsky applied. Dr. Wolinsky at University of Houston was a graduate student with the plaintiff at University of Kansas and did want to help him obtain employment either at the University of Houston, or at Rice University, or at the University of Texas Medical Center. However, there was no discrete position for which he was considering Bernofsky at the time he received the letter from Mr. Beal. Dr. Bill Campbell of Michigan Technological University was a post-doctoral student in Bernofsky's laboratory at Mayo Clinic in 1973-74. He has also published at least one paper with Dr. Bernofsky and has used Dr. Bernofsky as a reference in previous job searches of his own. He has testified that he wanted to help Dr. Bernofsky obtain employment but that the position he was hoping Bernofsky could receive at his campus, either an adjunct or research professor position, was not a salaried position and that there was no specific job search ongoing at the time. It is clear that the only positions for which Dr. Bernofsky applied and received any consideration were at universities at which he had close friends and colleagues to "lobby" on his behalf; further, neither of these two universities had discrete open positions at the time so it is impossible for the plaintiff to show that he would have obtained employment had Tulane not acted as it did. Further, it is uncontroverted that had he obtained employment at Michigan Technological, he would not have been paid.

   Plaintiff's attempts to use the instant litigation as a vehicle to challenge Tulane's decision to terminate him is misguided. His claims of discrimination have been litigated and should not be revisited herein.

7. UNCONTESTED MATERIAL FACTS

1. Dr. Bernofsky was employed as a Research Professor at Tulane from August 1975 until April, 1995.

2. In 1995 Dr. Bernofsky was awarded a two-year grant by the Air Force, in the amount of $125,000 per year. The amount of funding of his salary under this grant was $13,679 and $14,500 for the first and second years, respectively.

3. Dr. Bernofsky applied to approximately fifty-two universities and institutions in 1996 and 1997 searching for employment.

4. Dr. Bernofsky received either no response or a rejection response from approximately fifty of the universities/institutions at which he applied.

5. Dr. Bernofsky was never granted an interview by any of the places to which he applied for employment in 1996 and 1997.

6. Tulane's response to the University of Houston was in a letter dated February 21, 1997 from John R. Beal, General Counsel, to Ira Wolinsky, Ph.D.

8. CONTESTED ISSUES OF FACT

1. What was the termination date of Bernofsky?

2. Whether Dr. Bernofsky was given more than six months notice of his termination.

3. Whether Dr. Bernofsky was repeatedly reminded during the nine month period preceding his termination that he would need to obtain sufficient grant funding to support his salary in order to avoid termination.

4. Whether, as of the day he was terminated by Tulane, Dr. Bernofsky had obtained sufficient grant funding to support his salary.

5. Whether only two of the universities/institutions to which Dr. Bernofsky applied contacted Tulane for references on him.

6. Whether Tulane responded to only one inquiry from a potential employer: the University of Houston.

7. Whether there was any further contact between Tulane and the University of Houston after the Beal letter.

8. Whether Plaintiff ever contacted Dr. Karam, Dr. Steele or Dr. Stjernholm to inform them that he was listing them as job references.

9. Whether Dr. Karam, Dr. Steele or Dr. Stjernholm communicated with any potential employer of Dr. Bernofsky.

10. Whether or not Tulane's response to the University of Houston and/or failure to respond to Michigan Technological University were designed to interfere with plaintiff's employment prospects or were motivated by plaintiff's engaging in protected activity.

11. Whether there was a causal connection between plaintiff's protected activity and any adverse employment action.

12. Whether or not the statements made in the letter from John R. Beal, Associate General Counsel, to Ira Wolinsky, Ph.D. were true, made in good faith and without malice, and resulted in injury to plaintiff.

13. Whether or not any actions or inactions of Tulane prevented plaintiff from obtaining employment.

14. Whether or not any statements by anyone at Tulane harmed Dr. Bernofsky's reputation.

15. Whether or not any actions or inactions of Tulane caused damage to plaintiff.

16. Whether or not any actions or inactions of plaintiff contributed to any damages he sustained.

17. Whether or not plaintiff has conducted an adequate and appropriate search for employment or otherwise mitigated damages.

18. Whether or not plaintiff was qualified for the positions he sought during his job search.

19. Whether or not there was an actual position available for plaintiff at the University of Houston and/or Michigan Technological University.

20. Whether the total amount in the Air Force Grant for salaries was $59,240 and $62,903 for the first and second years, respectively.

21. Whether the principal investigator can reallocate salaries within the approved totals, which could have been used to increase the amount allocated to Bernofsky's salary.

9. CONTESTED ISSUES OF LAW

1. Whether or not plaintiff states a claim of post-employment retaliation under federal law.

2. Whether or not Tulane's actions or inactions constitute an adverse employment action.

3. Whether or not Tulane retaliated against Bernofsky in connection with his post-employment job search.

4. Whether or not the statements made by Tulane Associate General Counsel John R. Beal constitute defamation under Louisiana law.

5. Whether or not Tulane's statements are protected by a common law qualified privilege and/or by La. R.S. 23:921.

6. The extent to which plaintiff's claims have prescribed under the applicable statute of limitations.

10. LIST AND DESCRIPTION OF EXHIBITS

1. PLAINTIFF INTENDS TO INTRODUCE THE FOLLOWING EXHIBITS AT TRIAL

PLAINTIFF EXHIBITS WITHOUT OBJECTION:

1. Dr. Bernofsky's Curriculum Vitae. Dated July, 1995.

2. W-2 Tax Forms for 1997 and 1978.

3. 1976 Faculty Handbook. Section V, Policies Concerning Faculty.

14. Memo from Jim D. Karam to Carl Bernofsky announcing a 3-year review. Dated Mar. 31, 1994.

15. Memo from Jim D. Karam to Yu-Teh Li, R. H. Steele, and R. L. Stjernholm, forming a Faculty Review Committee to review Bernofsky's accomplishments for the past 3-year period. Dated May 3, 1994.

16. Annual Report - Progress Report prepared by Bernofsky in response to Karam's 3-year review. Dated Apr. 30, 1994.

23. Memo from Yu-Teh Li, R. H. Steele, and R. L. Stjernholm to Jim D. Karam with findings of the Faculty Review Committee. Dated May 16, 1994.

29. Memo from Carl Bernofsky to Jim D. Karam in response to his evaluation that was based on the findings of the Review Committee. Dated July 28, 1994.

30. Memo from James J. Corrigan to Executive Faculty with Procedure for Faculty Review. Dated July 20, 1994.

32. Memo from Carl Bernofsky to Jim D. Karam asserting willingness to teach and claiming the denial of due process procedures. Dated Aug. 10, 1994.

33. Email from Jim D. Karam to James J. Corrigan claiming slanderous accusations by Bernofsky and lack of evidence that Bernofsky was promised tenure. Dated Aug. 10, 1994.

34. Letter from Jim D. Karam to Carl Bernofsky threatening termination unless there is evidence of extramural funding by February 28, 1995. Dated Aug. 16, 1994.

35. Annual appointment letter from Dean James J. Corrigan to Carl Bernofsky covering the 1994-95 academic year. Dated June 20, 1994.

36. Original Air Force Grant Application and Routing Sheet. Dated May 10, 1994.

37. Cover letter from Carl Bernofsky to Walter J. Kozumbo accompanying the Air Force grant application. Dated May 11, 1994.

38. Letter from Walter J. Kozumbo to Carl Bernofsky acknowledging receipt of Air Force proposal. Dated June 8, 1994.

39. Letter from Walter J. Kozumbo to Carl Bernofsky with preliminary approval of Air Force and suggestions for revisions. Dated Oct. 17, 1994.

40. Letter from Carl Bernofsky to Walter J. Kozumbo with "Addendum to Proposal" in response to Air Force suggestions and with a new preliminary (unsigned) budget. Dated Nov. 25, 1994.

41. Letter from Walter J. Kozumbo to Carl Bernofsky informing him that the Air Force grant will be awarded with a starting date of 4/1/95. Dated Feb. 1, 1995.

42. Memo from Carl Bernofsky to Sheryl A. Gros and Jim D. Karam informing them of the notice that the Air Force grant is being awarded. Dated Feb. 6, 1995.

43. Memo from Carl Bernofsky to self re: conversation with Lynne Ebersole concerning budgeting problems that she raised with the Air Force. Dated Feb. 13, 1995.

44. Memo from Lynne Ebersole to John R. Beal claiming that Bernofsky had threatened Dean Corrigan. Dated Feb. 15, 1995.

45. Memo from Lynne Ebersole to Carl Bernofsky requiring him to substitute names of coworkers previously approved by the Air Force. Dated Feb. 16, 1995.

46. Memo from Carl Bernofsky to Lynne Ebersole protesting changes to the previously approved Air Force budget. Dated Feb. 20, 1995.

47. Submission of revised budget to Air Force, attached to "Addendum to Proposal." Dated Feb. 24, 1995.

49. Letter from Fran Washington to Lynne Ebersole with Award Notice from the Air Force. Dated Mar. 22, 1995.

50. Award Notice from the Air Force, attached to letter to Lynne Ebersole. Dated Mar. 22, 1995.

51. Memo from Lynne Ebersole to Carl Bernofsky requesting approval of the Award Notice. Dated Mar. 31, 1995.

52. Bernofsky's approval of Air Force grant. Dated Apr. 3, 1995.

54. Letter from Jim D. Karam to Carl Bernofsky stating that February 28, 1995 marks the end of his 6-month termination notice. Dated Dec. 20, 1994.

67. Last monthly paycheck from Tulane University to Carl Bernofsky. Dated Mar. 31, 1995.

68. Letter from Jim D. Karam to James J. Corrigan confirming Bernofsky's termination on 4/21/95. Dated June 12, 1995.

75. Letter from Harrison C. Spencer to Carl Bernofsky appointing him Adjunct Professor in Department of Health Sciences. Dated Nov. 14, 1995.

78. Letter from William O. Berry to Carl Bernofsky with notice that a Progress Report on the Air Force grant is due. Dated Aug. 16, 1995.

79. Progress Report on Air Force grant. Dated Sept. 1, 1995.

80. Email from Walter J. Kozumbo to Lynne Ebersole acknowledging prior communication regarding the lack of progress on Air Force grant and the return of grant funds. Dated Dec. 11, 1995.

99. Correspondence for a position at Louisiana State University, Baton Rouge, in response to an invitation to apply. Lists three prominent free-radical experts as references. Dated Mar. 29, 1996.

100. Job Search Listing of 52 positions applied for in 1997.

101. Representative advertisements for job openings to which Dr. Bernofsky responded in 1997.

102. Correspondence with University of Minnesota, Sundaram Ramakrishnan, Department of Pharmacology. Dated Oct. 13, 1997.

103. Correspondence with Massachusetts Institute of Technology, Rick L. Danheiser, Department of Chemistry. Dated Feb. 18, 1997.

104. Correspondence with State University of New York, Stony Brook, William J. Lennarz, Department of Biochemistry and Cell Biology. Dated Aug. 4, 1997.

105. Correspondence with University of Rochester, Thomas A. Gasiewicz, Department of Environmental Medicine. Dated Aug. 18, 1997.

106. Correspondence with Louisiana State University, Shreveport, Shari Boyett, Department of Physiology and Biophysics. Dated Mar. 14, 1997.

107. Correspondence with Massachusetts Institute of Technology, Rafael L. Bras, Department of Civil and Environmental Engineering. Dated June 3, 1997.

108. Correspondence with University of Pittsburg, Jerome S. Schultz, Center for Biotechnology and Bioengineering. Dated Mar. 7, 1997.

109. Correspondence with Dartmouth University, Harold M. Swartz, EPR Center for the Study of Viable Systems. Dated Mar. 12, 1997.

110. Correspondence with Penn State University, Cara-Lynne Schengrund, Department of Biochemistry and Molecular Biology. Dated June 30, 1997.

111. Correspondence with Brown University, D'Ellen K Roye, Department of Pharmacology, Physiology & Biotechnology. Dated July 2, 1997.

112. Correspondence with University of California, Santa Barbara, R. Daniel Little, Department of Chemistry. Dated July 9, 1997.

113. Correspondence with Vanderbilt University, David M. Hercules, Department of Chemistry. Dated July 2, 1997.

114. Correspondence with Michigan Technological University, Wilbur H. Campbell, Department of Biological Sciences. Dated Nov. 29, 1997.

115. Correspondence with University of Rochester, M.W. Anders, Department of Biochemistry and Biophysics. Dated Jan. 24, 1997.

116. Correspondence with Louisiana State University, New Orleans, Robert Roskoski, Department of Biochemistry. Dated Jan. 25, 1997.

117. Correspondence with University of New Orleans, Jack W. Timberlake, Department of Chemistry. Dated Jan. 29, 1997.

118. Correspondence with Princeton University, Lynn W. Enquist, Department of Molecular Biology. Dated Jan. 29, 1997.

119. Correspondence with University of California, San Francisco, Thea Tlsty, Cancer Research Institute. Dated Feb. 6, 1997.

120. Correspondence with University of Houston, Ira Wolinsky, Department of Human Development and Consumer Sciences. Dated Feb. 21, 1997.

121. Correspondence with University of Chicago, Anthony P. Mahowald, Department of Molecular Genetics and Cell Biology. Dated Feb. 26, 1997.

122. Correspondence with Purdue University, Richard D. Mattes, Department of Foods and Nutrition. Dated Mar. 5, 1997.

123. Correspondence with University of Arkansas, Little Rock, J.O. Snowden, Department of Applied Science. Dated Mar. 28, 1997.

124. Correspondence with Oregon State University, Max Deinzer, Environmental Health Sciences Center. Dated Apr. 2, 1997.

125. Correspondence with University of Utah, Brenda Bass, Department of Biochemistry. Dated Apr. 11, 1997.

126. Correspondence with University of Cincinnati, William J. Larsen, Department of Cell Biology, Neurobiology, and Anatomy. Dated May 12, 1997.

127. Correspondence with University of Colorado, Michael L. Vasil, Department of Microbiology. Dated May 20, 1997.

128. Correspondence with Morehouse School of Medicine, Gordon B. Bailey, Office of Research. Dated June 4, 1997.

129. Correspondence with Ohio State University, Gary D. Stoner, Division of Environmental Health Sciences. Dated June 24, 1997.

130. Correspondence with University of Alabama, Birmingham, Stephen L. Hajduk, Department of Biochemistry and Molecular Genetics. Dated June 30, 1997.

131. Correspondence with Ohio University, Jared A. Butcher, Jr., Department of Chemistry. Dated Aug. 6, 1997.

132. Correspondence with University of Pittsburgh, Joseph C. Glorioso, Department of Molecular Genetics and Biochemistry. Dated Sept. 22, 1997.

133. Correspondence with Oregon State University, George S. Bailey, Linus Pauling Institute. Dated Oct. 16, 1997.

134. Letter from Ira Wolinsky to Jim D. Karam inquiring about Bernofsky's professional qualifications. Dated Feb. 7, 1997.

135. Letter from Ira Wolinsky to Rune L. Stjernholm inquiring about Bernofsky's professional qualifications. Dated Feb. 7, 1997.

136. Letter from John R. Beal to Ira Wolinsky noting that Bernofsky had sued his Chairman and had no grant funds. Dated Feb. 21, 1997. [view PDF]

137. Letter from Wilbur H. Campbell to Rune L. Stjernholm inquiring about Bernofsky's professional qualifications. Dated May 27, 1997.

138. Letter from Wilbur H. Campbell to Jim D. Karam inquiring about Bernofsky's professional qualifications. Dated May 27, 1997.

139. Letter from Wilbur H. Campbell to Carl Bernofsky noting inability to obtain a letter of recommendation from Tulane. Dated Nov. 29, 1997.

140. Discrimination complaint filed with EEOC alleging defamation and retaliation. Charge No. 270971445. Dated Sept. 25, 1997.

141. Discrimination complaint filed with EEOC alleging discrimination and retaliation. Charge No. 270981057. Dated Apr. 23, 1998.

142. All internal Tulane documents and correspondence, email, notes, etc. involving Dr. Bernofsky from January, 1997, to the present.

143. Dr. Jim Karam's CV.

144. Dr. Jen-sie Tou's CV.

145. Dr. Su-Chen Li's CV.

2. DEFENDANT OBJECTS TO THE FOLLOWING EXHIBITS OF PLAINTIFF ON GROUNDS OF RELEVANCY.  (OF THESE, DEFENDANT HAS A SECOND OBJECTION TO THE FOLLOWING EXHIBITS ON GROUNDS OF COLLATERAL SOURCE: 58, 89, 90, 91, 92, 93, 94, 95, 96, 97, AND 98):

4. NIH Critique indicating Stjernholm's communication to a Feb/Mar 1977 NIH Experimental Therapeutics Study Section. Dated July 1, 1977.

5. HEW Research Career Program Grant with Stjernholm's endorsement, countersigned by the Dean. Dated Sept. 27, 1977.

6. Letter from Rune L. Stjernholm to John A. DeMoss, University of Texas Health Science Center. Dated July 10, 1978.

7. Letter from Hiram B. Curry to Rune L. Stjernholm, seeking nominations for a chairmanship at the Medical University of S. Carolina. Dated Oct. 23, 1978.

8. Letter from Rune L. Stjernholm to Hiram B. Curry recommending Bernofsky for chairmanship of the Department of Biochemistry. Dated Nov. 16, 1978.

9. Letter from Rune L. Stjernholm to Acting Dean Blackwell Evans with recommendation of tenure for Bernofsky. Dated Apr. 14. 1989.

10. Tulane Graduate School Catalog, 1990-92 with listing of Bernofsky's course: Biochemistry 706, "Energy Transduction Processes," page 69.

11. Letter from Vincent A. Fulginiti to NIH Division of Research Resources committing support for an EPR spectrometer at Tulane. Dated Mar. 22, 1990.

12. Letter from Vincent A. Fulginiti to NIH Division of Research Grants committing support for an EPR spectrometer at Tulane. Dated Mar. 23, 1990.

13. Letter from Carl Bernofsky to Priscilla Kilcrease with Final Project Report to the State of Louisiana Board of Regents for the LEQSF grant: "Electron Paramagnetic Resonance Spectrometer." Dated Dec. 28, 1994.

17. Anonymous extramural expert review of Bernofsky's NSF grant application MCB-9408709. Dated Apr. 2, 1994.

18. Anonymous extramural expert review of Bernofsky's NSF grant application MCB-9408709. Dated Apr. 2, 1994.

19. Anonymous extramural expert review of Bernofsky's NSF grant application MCB-9500928. Dated Nov. 14, 1994.

20. Letter from Willem H. Koppenol to Evanthea Phipps in support of Bernofsky. Dated Sept. 22, 1995.

21. Letter from Al Tappel to John C. LaRosa in support of Bernofsky. Dated Nov. 27, 1995.

22. Letter from Garry R. Buettner to William A. Toscano in support of Bernofsky. Dated Dec. 19, 1995.

24. Memo from Carl Bernofsky to Jim D. Karam asking permission to allow Bernofsky's coworkers to continue working for token salary pending funding of a new grant. Dated May 7, 1994.

25. Memo from Carl Bernofsky to Frank C. Currie with a request to process Tang's termination in a manner that will permit her to be rehired in the near future. Dated June 11, 1994.

26. Memo from Jim D. Karam to Carl Bernofsky refusing to allow Bernofsky's coworkers to continue working for a token salary. Dated May 24, 1994.

27. Payroll Action Form for Yan Tang terminating her as of 6/6/94. Dated Apr. 19, 1994.

28. Memo from Jim D. Karam to James J. Corrigan confirming the termination of Ratnayake Bandara as of 9/28/94. Dated Sept. 20, 1994.

31. Guidelines for the Assignment of Research Space. Dated Aug. 26, 1993.

53. Announcement of Bernofsky's Air Force grant, published in the Monitor, Tulane University Medical Center News, Vol. 2, No. 7, Mar. 1995.

55. Memo from Carl Bernofsky to N. Kevin Krane informing him of four grievances being filed against Jim D. Karam with the Tulane Medical School Grievance Committee. Dated Dec. 27, 1994.

56. Lawsuit filed in federal court: Dr. Carl Bernofsky v. Tulane University Medical School, with John R. Beal served (Civil Action No. 95-358, Docket Item 1, Record No. 304-313). Dated Jan. 31, 1995.

57. Return Receipt of service from John R. Beal's Office (Civil Action No. 95-358, Record No. 287). Dated Feb. 2, 1995.

58. Discrimination complaint filed with EEOC alleging race and age discrimination. Charge No. 270950754. Dated Feb. 10, 1995.

59. Letter from Roger D. Phipps to G. Phillip Shuler and John R. Beal with copy of Air Force grant award. Dated Apr. 7, 1995.

60. Letter from Roger D. Phipps to Judge Ginger Berrigan with copy of Air Force grant award, hand-delivered. Dated Apr. 7, 1995.

61. Letter from Julien M. Christensen to Carl Bernofsky inviting him to participate in Air Force conference on Predictive Toxicology. Dated Mar. 22, 1995.

62. Bernofsky gives lecture at Air Force conference: "Radical Intermediates of Halogenated Metabolites." Dated May 31, 1995.

63. Memo from Carl Bernofsky to John A. McLachlan confirming grant award and expressing interest in participating in John McLachlan's environmental toxicology program. Dated Feb. 27, 1995.

64. Letter from Carl Bernofsky to J. Patrick Jordan acknowledging meeting. Dated May 6, 1995.

65. Letter from John R. Beal to Roger D. Phipps advising that locks will be changed on Bernofsky's office and laboratory rooms. Dated May 3, 1995.

66. Letter from John R. Beal to Roger D. Phipps discussing planned meeting between Tulane Chancellor John La Rosa and SRRC Director J. Patrick Jordan. Dated May 30, 1995.

69. Surgical Pathology Reports of Flora B. Shoaf. Dated June 5, 1995.

70. Report of Milton W. Seiler on Bernofsky's malignant lymphoma. Dated Oct. 11, 1995.

71. Letter from Roger D. Phipps to G. Phillip Shuler and John R. Beal listing equipment provided by Tulane. Dated June 14, 1995.

72. Letter from Roger D. Phipps to John R. Beal with proposal for utilization of Air Force grant. Dated June 15, 1995.

73. Letter from Roger D. Phipps to G. Phillip Shuler and John R. Beal with listing of equipment provided by Tulane and items needed for Air Force grant. Dated June 16, 1995.

74. Draft Proposal by the SRRC for submission to Tulane University concerning the transfer of Bernofsky's research program. Dated June 20, 1995.

76. Letter from Carl Bernofsky to J. Patrick Jordan summarizing his efforts to establish a collaborative program with Tulane on Bernofsky's behalf. Dated Jan. 5, 1996.

77. Memo from Jim D. Karam to Biochemistry Faculty reassigning the contents of Bernofsky's laboratories. Dated June 10, 1996.

81. Fax from Andrew P. Thomas to Carl Bernofsky requesting an immediate response regarding acceptance of a manuscript review. Dated July 11, 1995.

82. Return of Bernofsky's journal reprints to Kluwer Academic Publishers. U.P.S. Return to Shipper Notice; Package ID #85534. Dated Sept. 19, 1995.

83. Note by Robert B. Blackerby, verifying the refusal and return of reprints by Carol Uhlich. Dated Sept. 19, 1995.

84. Letter from Carol Uhlich to Department of Health and Human Services that a packet of materials intended for Bernofsky should be resubmitted to Department Chair Jim Karam. Dated Dec. 10, 1996.

85. Fax from Hannah Ruczuj to Carl Bernofsky inquiring about manuscript to Immunology Today submitted earlier for review. Dated Jan. 17, 1997.

86. Memo from Debra Wilson to Carl Bernofsky concerning expedited publication of a biographical update in American Men & Women of Science. Dated July 15, 1997.

87. Letter from Carol Uhlich to American Institute for Cancer Research that a packet of materials intended for Bernofsky should be resubmitted to Department Chair Jim Karam. Dated Sept. 8, 1997.

88. Decision of Administrative Law Judge William G. McCollom to grant SSA benefits. Dated Apr. 25, 1997.

89. Form SSA-1099 Social Security Benefit Statement for benefits paid in 1996.

90. Letter from Anne Jacobosky to Carl Bernofsky concerning Social Security disability benefits. Dated May 21, 1997.

91. Letter from Anne Jacobosky to Carl Bernofsky concerning Social Security disability benefits. Dated July 5, 1997.

92. Letter from Lianne Brankner to Carl Bernofsky noting that his TIAA that claim for disability benefits is denied. Dated Mar. 27, 1996.

93. Letter from Carl Bernofsky to Lianne Brankner appealing to TIAA for disability benefits. Dated Apr. 5, 1996.

94. Letter from Bonnie Leung to Carl Bernofsky indicating a requirement by TIAA for all medical records. Dated Apr. 26, 1996.

95. Letter from Bonnie Leung to Carl Bernofsky noting that his TIAA claim for disability benefits is denied. Dated June 18, 1996.

96. Letter from Geri L. Blasse to Carl Bernofsky that TIAA needs to verify termination date from Tulane. Dated Feb. 11, 1998.

97. Letter from Carl Bernofsky to Geri L. Blasse outlining disability benefits received from Social Security and due from TIAA. Dated Feb. 13, 1998. With enclosures.

98. Letter from Geri L. Blasse to Carl Bernofsky that disability benefits from TIAA are denied. Dated Mar. 6, 1998.

3. DEFENDANT OBJECTS TO THE FOLLOWING EXHIBIT OF PLAINTIFF ON GROUNDS OF AUTHENTICITY:

48. Lay Summary of Air Force Grant. Dated Mar. 16, 1995.

4. DEFENDANT OBJECTS TO THE FOLLOWING EXHIBIT OF PLAINTIFF ON GROUNDS OF HEARSAY:

146. Economist Report of Thomas Dalton, PhD.

5. DEFENDANT INTENDS TO INTRODUCE THE FOLLOWING EXHIBITS AT TRIAL

DEFENDANT EXHIBITS WITHOUT OBJECTION:

1. Tulane University Faculty Handbook, effective 1976.

2. Tulane University Faculty Handbook, effective 1986.

3. Tulane University Faculty Handbook, effective 1995.

5. Memorandum from Karam to Corrigan, March 28, 1994.

6. Memorandum from Karam to plaintiff, March 31, 1994.

7. Memorandum from Karam to Ad Hoc Faculty Review Committee, May 3, 1994.

8. Memorandum from Professors Li, Steele and Stjernholm to Karam, May 16, 1994.

9. Memorandum from Karam to plaintiff, May 24, 1994.

10. Tulane's Recommendation for Faculty Personnel Action, effective July 1, 1994.

11. Memorandum from Karam to plaintiff, August 16, 1994.

12. Memorandum from Karam to plaintiff, December 20, 1994.

13. Memorandum from Karam to plaintiff, January 12, 1995.

14. Memorandum from Karam to plaintiff, January 31, 1995.

15. Letter from Department of Air Force to plaintiff, February 1, 1995.

16. Letter from plaintiff to Sheryl Gros, February 6, 1995.

17. Tulane Grant/Contract Routing Sheet with Addendum to Proposal submitted to the Air Force attached, February 22, 1995.

18. Letter from Department of Air Force to Tulane with Air Force Grant attached, March 22, 1995.

19. Memorandum from Karam to Corrigan, June 12, 1995.

20. Letter from Harrison Spencer to plaintiff, November 14, 1995.

22. Plaintiff's Job Search, 1997.

23. Correspondence from plaintiff to University of Rochester and its response.

24. Correspondence from plaintiff to University of Dartmouth-Hitchcock Medical Center and its response.

25. Correspondence from plaintiff to Oregon State University and its response.

26. Correspondence from plaintiff to the University of Pittsburgh and its response.

27. Correspondence from plaintiff to Florida Atlantic University and its response.

28. Correspondence from plaintiff to the University of Alabama at Birmingham and its response.

29. Correspondence from plaintiff to Ohio University and its response.

30. Correspondence from plaintiff to UC Berkeley and its response.

31. Correspondence from plaintiff to the University of Utah and its response.

32. Correspondence from plaintiff to Amgen Boulder.

33. Correspondence from plaintiff to the University of Colorado Health Sciences Center and its response.

34. Correspondence from plaintiff to the University of Nebraska Medical Center and its response.

35. Correspondence from plaintiff to Princeton University and its response.

36. Correspondence from plaintiff to UC Davis Cancer Center and its response.

37. Correspondence from plaintiff to the University of Texas Southwestern Medical Center.

38. Correspondence from plaintiff to Bassett Healthcare and its response.

39. Correspondence from plaintiff to Brown University and its response.

40. Correspondence from plaintiff to U.S. Environmental Protection Agency and its response.

41. Correspondence from plaintiff to the University of Cincinnati Medical Center and its response.

42. Correspondence from plaintiff to The Massachusetts Institute of Technology and its response.

43. Correspondence from plaintiff to Battelle and its response.

44. Correspondence from plaintiff to UC Irvine.

45. Correspondence from plaintiff to the University of Chicago and its response.

46. Correspondence from plaintiff to LSU School of Medicine in Shreveport and its response.

47. Correspondence from plaintiff to Battelle, Pacific Northwest Laboratory.

48. Correspondence from plaintiff to the University of Houston and its response.

49. Correspondence from the University of Houston to Tulane.

50. Correspondence from Tulane to the University of Houston.

51. Correspondence from plaintiff to LSU Medical Center.

52. Correspondence from plaintiff to the University of New Orleans and its response.

53. Correspondence from plaintiff to the University of Arkansas at Little Rock and its response.

54. Correspondence from plaintiff to Morehouse School of Medicine and its response.

55. Correspondence from plaintiff to the University of Iowa and its response.

56. Correspondence from plaintiff to Penn State University and its response.

57. Correspondence from plaintiff to Purdue University and its response.

58. Correspondence from plaintiff to UC Santa Barbara and its response.

59. Correspondence from plaintiff to Vanderbilt University and its response.

60. Correspondence from plaintiff to The National Cancer Institute.

61. Correspondence from plaintiff to Michigan Technological University and its response.

62. Correspondence from Michigan Technological University to Tulane.

63. Correspondence from plaintiff to the University of Rochester and its response.

64. Correspondence from plaintiff to Uniformed Services University of the Health Sciences and its response.

65. Correspondence from plaintiff to SUNY at Stony Brook and its response.

66. Correspondence from plaintiff to UC San Francisco and its response.

67. Correspondence from plaintiff to The National Institutes of Health and its response.

68. Correspondence from plaintiff to the University of Minnesota and its response.

69. Correspondence from plaintiff to Division of Environmental Health Services.

70. Correspondence from plaintiff to Duquesne University and its response.

71. Correspondence from plaintiff to The Massachusetts Institute of Technology and its response.

72. Correspondence from plaintiff to the University of Pittsburgh and its response.

73. Correspondence from plaintiff to the U.S. EPA.

74. Correspondence from plaintiff to Oregon State University and its response.

75. Correspondence from plaintiff to New York University Medical Center.

76. Correspondence from plaintiff to Ohio State University and its response.

77. Plaintiff's EEOC Charge of Discrimination, September 25, 1997.

78. EEOC Dismissal and Notice of Rights, March 31, 1998.

79. Plaintiff's EEOC Charge of Discrimination, April 23, 1998.

80. Plaintiff's tax returns/W-2 Forms for 1993-98.

88. Tulane's EEO policies against retaliation and discrimination.

6. PLAINTIFF OBJECTS TO THE FOLLOWING EXHIBITS OF DEFENDANT:

4. Policy Statement on Criteria for Academic Performance, Promotion and Tenure for Full-Time Faculty in the Tulane University School of Medicine.  Authenticity.

21. Affidavit of Terry Miller.  Hearsay.

81. Complaint and First and Second Amended Complaints in Dr. Carl Bernofsky v. Tulane University Medical School, Civil Action Number 95-0358, USDC, Eastern District of Louisiana.  Relevancy.

82. The Court's Order and Reasons granting Defendant's Motion for Summary Judgment in Dr. Carl Bernofsky v. Tulane University Medical School, Civil Action Number 95-0358, USDC, Eastern District of Louisiana.  Relevancy.

83. The Court's decision in Dr. Carl Bernofsky v. Tulane University Medical Center, et al., Docket Number 97-30575, United States Court of Appeals for the Fifth Circuit.  Relevancy.

84. The Court's decision on Appellant's Petition for Rehearing in Dr. Carl Bernofsky v. Tulane University Medical Center, et al., Docket Number 97-30575, United States Court of Appeals for the Fifth Circuit.  Relevancy.

85. The Court's decision in Dr. Carl Bernofsky v. Tulane University School of Medicine, Docket Number 97-1844, Supreme Court of the United States.  Relevancy.

86. Printout of Dr. Carl Bernofsky's Web site.  Relevancy.

87. Printout of web searches Re: Jim D. Karam.  Relevancy.

89. Expert report of F.W. Bennett.  Hearsay.

11. DEPOSITION TESTIMONY AS TRIAL EVIDENCE

Plaintiff may use deposition testimony as allowed by the Federal Rules of Civil Procedure. Defendant does not intend to offer any deposition testimony into evidence except that used for impeachment purposes.

12. LISTING OF ANY CHARTS, GRAPHS, MODELS, SCHEMATIC DIAGRAMS AND SIMILAR OBJECTS TO BE USED DURING OPENING STATEMENTS OR CLOSING ARGUMENTS

Plaintiff and Defendant may use blow-ups or transparencies of any exhibits which are not objected to in this pre-trial order during opening statement or closing argument. In addition, both parties may, during closing argument, use blowups or transparencies of exhibits admitted into evidence at trial.

Both parties may use during opening or closing statement, time lines, charts or graphics that summarize evidence contained in exhibits, provided these time lines, charts or graphics are not objected to by the opposing party or by Court order.

Both parties will have available for inspection by the opposing party at least 3 days prior to trial any time line, graphics or charts to be used in opening statement or closing statements. If there is any dispute as to their use, the dispute will be submitted to the Court at least one day prior to trial.

Defendant does not intend to use in opening statements or closing arguments any charts, graphs or diagrams that are not offered into evidence.

13. WITNESSES

1. Plaintiff will call the following witnesses:

1. Dr. Carl Bernofsky, Plaintiff
   6478 General Diaz Street
   New Orleans, LA 70124
   Will testify regarding all aspects of the case.

2. Dr. Rune L. Stjernholm
   Professor
   Department of Biochemistry
   Tulane University School of Medicine
   1430 Tulane Avenue
   New Orleans, LA 70112
   Will testify regarding deposition testimony.

3. Dr. Richard H. Steele
   Professor Emeritus of Biochemistry
   3905 Cleveland Place
   Metairie, LA 70003
   Will testify regarding deposition testimony.

4. Mr. John R. Beal
   Associate General Counsel
   Tulane University School of Medicine
   1430 Tulane Avenue
   New Orleans, LA 70112
   Will testify regarding deposition testimony.

2. Plaintiff may call the following witnesses:

5. Dr. Jim D. Karam
   Professor and Chair
   Department of Biochemistry
   Tulane University School of Medicine
   1430 Tulane Avenue
   New Orleans, LA 70112
   Will testify regarding deposition testimony.

6. Dr. James J. Corrigan
   Dean
   School of Medicine
   Tulane University School of Medicine
   1430 Tulane Avenue
   New Orleans, LA 70112
   Will testify regarding deposition testimony.

7. Dr. Wilbur H. Campbell
   Professor of Biochemistry and Molecular Biology
   Department of Biological Sciences
   Michigan Technological University
   Houghton, Michigan 49931
   Will testify regarding deposition testimony.

8. Dr. Ira Wolinsky
   Professor of Nutrition
   Department of Human Development and Consumer Science
   University of Houston
   Houston, Texas 77204
   Will testify regarding deposition testimony.

9. Mrs. Shirley Bernofsky
   Teacher
   Orleans Parish School Board
   6478 General Diaz Street
   New Orleans, LA 70124
   Plaintiff's wife, who will testify regarding damages and some contact with Tulane.

10. Dr. Willem H. Koppenol
    Chairman
    Laboratorium für Anorganische Chemie
    Eidgenössische Technische Hochschule
    CH-8092 Zurich, Switzerland
    Koppenol is a scientist of international reputation and an expert in the field of free radical research who will testify on the scientific merit of Bernofsky's work.

11. Dr. Jen-sie Tou
    Retired Associate Professor of Biochemistry
    4641 Ithaca Street
    Metairie, LA 70006
    For the many years Tou was a research professor, she raised only a fraction of the grant money raised by Bernofsky, yet she was never threatened with termination and, in fact, was granted "automatic tenure" because of the many years she remained on a research track.

12. Dr. Su-Chen Li
    Research Professor
    Department of Biochemistry
    Tulane University School of Medicine
    1430 Tulane Avenue
    New Orleans, LA 70112
    Su-Chen Li is a research professor who has never raised any grant money on the strength of her own credentials, has no teaching responsibilities of her own, and yet was never threatened with termination.

13. Dr. Melanie Ehrlich
    Professor
    Program in Human Genetics
    Tulane University School of Medicine
    1415 Tulane Avenue
    New Orleans, LA 70112
    Ehrlich was the target of intense harassment from Karam and was forced to move from the Department of Biochemistry in 1995. She joined the Program in Human Genetics, lost her grant support, and was unable to acquire funding again until four years later. Nevertheless, she was not threatened with loss of a laboratory or termination because of a lack of grant funds.

14. Mr. Robert D. Blackerby
    Supervisor
    Purchasing and Stores
    Tulane University School of Medicine
    1430 Tulane Avenue
    New Orleans, LA 70112
    Blackerby will testify that, on Sept. 9, 1995, Karam's Office Manager, Carol Uhlich, refused a shipment of three packages of Bernofsky's journal reprints and returned them to Kluwer Academic Publishers in the Netherlands. At the time, Mrs. Bernofsky was in weekly contact with Carol Uhlich.

15. Dr. J. Patrick Jordan
    Director
    Southern Regional Research Center
    1100 Robert E. Lee Boulevard
    New Orleans, Louisiana 70179
    Jordan had agreed to allow Bernofsky to transfer his research program to the SRRC, and he prepared a "Draft Proposal," that he later submitted to Tulane and discussed with Tulane officials. However, problems over the administration of Bernofsky's Air Force grant, and objections raised by Tulane over the requirement for lab space at Tulane, led to Jordan's inability to gain Tulane's cooperation in salvaging Bernofsky's research program.

16. Dr. Thomas R. Dalton
    Economist
    18 Plover Street
    New Orleans, Louisiana 70124
    Dalton is Professor of Economics at Southern University, New Orleans, and is engaged by plaintiff as an expert witness to determine and testify on the economic loss suffered by Bernofsky as a result of Tulane's retaliatory actions.

17. All witnesses listed by the Defendant.

3. Defendant will call the following fact witnesses to testify at trial:

1. John Beal, Esq.
   1430 Tulane Ave.
   New Orleans, LA 70112
   Tulane's Associate General Counsel, to testify about his letter to Dr. Wolinsky; events surrounding Bernofsky's termination, litigation and his decision to respond to University of Houston in behalf of the Tulane professors; lack of response to Michigan Technological University and of communication with any other potential employer.

2. Dr. Jim Karam
   1430 Tulane Ave.
   New Orleans, LA 70112
   To testify about the extent of his communications to/from potential employers and plaintiff concerning his job search; his interactions with plaintiff; plaintiff's job performance and separation from Tulane; job searches and reference letters generally; plaintiff's public claims concerning actions by him; reasons for Tulane's termination of plaintiff.

3. Dr. Richard Steele
   3905 Cleveland Place
   Metairie, LA 70003
   To testify about the extent of his communications to/from potential employers and plaintiff concerning his job search; his interactions with plaintiff; plaintiff's job performance and separation from Tulane; job searches and reference letters generally.

4. Dr. Rune Stjernholm
   1430 Tulane Ave.
   New Orleans, LA 70112
   To testify about the extent of his communications to/from potential employers and plaintiff concerning his job search; his interactions with plaintiff; plaintiff's job performance and separation from Tulane; job searches and reference letters generally.

4. Defendant may call the following witnesses to testify at trial:

1. James J. Corrigan, M.D.
   1430 Tulane Ave.
   New Orleans, LA 70112
   (Fact witness, to testify about his interactions with plaintiff; his role in plaintiff's termination; job searches and the role of reference letters generally; his knowledge of plaintiff's job search.)

2. Lynne Ebersole
   1430 Tulane Ave.
   New Orleans, LA 70112
   (Fact witness to testify about her interactions with plaintiff; plaintiff's grant funding while at Tulane; plaintiff's 1995 Air Force Grant.)

3. Sheryl Gros
   1430 Tulane Ave.
   New Orleans, LA 70112
   (Fact witness to testify about her interactions with plaintiff; plaintiff's grant funding while at Tulane; plaintiff's 1995 Air Force Grant.)

4. Dr. Yu-Teh Li
   1430 Tulane Ave.
   New Orleans, LA 70112
   (Fact witness to testify about plaintiff's academic performance and his role on the Faculty Review Committee.)

5. Terry L. Miller
   1430 Tulane Ave.
   New Orleans, LA 70112
   (Fact witness to testify about his interactions with plaintiff; plaintiff's grant funding while at Tulane; plaintiff's 1995 Air Force Grant.)

6. Mary Smith
   1430 Tulane Ave.
   New Orleans, LA 70112
   (Fact witness to testify about Tulane's policies of equal employment opportunity and against discrimination/retaliation.)

7. Carol Uhlich
   1430 Tulane Ave.
   New Orleans, LA 70112
   (Fact witness to testify about her interactions with plaintiff; Biochemistry Department policies and procedures.)

8. F. W. Bennett (Expert Economist)
   1439 Louisiana Avenue, #D
   New Orleans, LA 70115
   

9. Ms. Shari Boyett
   Search Committee Coordinator
   Department of Physiology
   LSU Medical Center
   1501 Kings Highway
   Shreveport, LA 71130
   (Fact witness to testify about plaintiff's employment prospects at her institution.)

10. Dr. Jack W. Timberlake
    Department of Chemistry
    University of New Orleans
    Lakefront Campus
    New Orleans, LA 70148
    (Fact witness to testify about plaintiff's employment prospects at his institution.)

11. Dr. Robert Roskoski
    Department of Biochemistry
    LSU Medical Center
    1901 Perdido Street
    New Orleans, LA 70112
    (Fact witness to testify about plaintiff's employment prospects at his institution.)

14. JURY TRIAL
    The case is to be tried by jury.  Proposed jury instructions, special jury interrogatories, trial memoranda and any special questions that the Court is asked to put to prospective jurors on voir dire shall be delivered to the Court and opposing counsel not later than five working days prior to the trial date, unless otherwise directed by the Court or specific leave to the contrary is granted by the Court.

    ISSUE OF LIABILITY

    The issue of liability will not be tried separately from that of quantum.

    STATEMENT DESCRIBING ANY OTHER MATTERS THAT MIGHT EXPEDITE A DISPOSITION OF THE CASE

    Defendant states that a rule on Defendant's Motion(s) in Limine and a determination as to what will be told the jury about the prior litigation would expedite disposition of this case.

    TRIAL DATE

    The trial shall commence on the 18th day of January, 2000, at 9:00 a.m.  It is estimated by both parties that it will take approximately three days.

    PRE-TRIAL ORDER FORMULATION

    This pre-trial order has been formulated after conference at which counsel for the respective parties appeared in person or by telephone. Reasonable opportunity has been afforded counsel for corrections or additions prior to signing. Hereafter, this order will control the course of trial and may not be amended, except by consent of the parties or by the order of the court to prevent manifest injustice.

    SETTLEMENT POSSIBILITY

    The possibility of settlement of this case was considered.

	Respectfully submitted,   s/      Victor R. Farrugia         Victor R. Farrugia #19324 Catherine C. Cooper #26153 VICTOR R. FARRUGIA, PLC 228 St. Charles Avenue Suite 1028 New Orleans, LA 70130-2610 Telephone: (504) 525-0250 ATTORNEYS FOR PLAINTIFF
	s/      Julie D. Livaudais         G. Phillip Shuler, III, T.A. (#12047) Julie D. Livaudais (#1183) Richard B. Ramirez (#23263) Chaffe, McCall, Phillips, Toler & Sarpy 2300 Energy Centre 1100 Poydras Street New Orleans, LA 70163 Telephone: (504) 585-7000

 

__________________________________________
 UNITED STATES DISTRICT COURT JUDGE

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