PLAINTIFF'S MOTION AND INCORPORATED MEMORANDUM FOR
RECUSAL, AND, IN THE ALTERNATIVE, TO AMEND
JUDGMENT, AND/OR MOTION FOR NEW TRIAL
COMES NOW THE Plaintiff, Dr. Carl Bernofsky (hereafter, "Bernofsky"), through undersigned counsel, and submits this Motion for Recusal, and, In the Alternative, to Amend Judgment and/or Motion For New Trial, pursuant to Rule 59 of the Federal Rules of Civil Procedure.
I. POSTURE OF THE CASE
Bernofsky has previously filed a Motion for Recusal in this case. That motion was denied
by Order entered on November 23, 1998. See Exhibit A. The denial of Bernofsky's Motion for
Recusal was appealed to the U.S. Fifth Circuit Court of Appeals and ultimately to the U.S. Supreme Court. The denial of the Motion for Recusal was upheld by the appellate courts, with the final decisions in late 1999.
In November, 1999, Judge Berrigan was appointed to teach at Tulane School of Law
Summer School Abroad 2000. See Exhibit B.
After Bernofsky found out about the appointment on his own, he wrote a letter to Judge
Berrigan on April 4, 2000, asking for her recusal because of this teaching appointment. See
Exhibit C.
While Bernofsky was waiting for a response to his latest request for recusal, this Court on
April 18, 2000, entered Judgment in favor of Tulane and against Bernofsky, dismissing all of the
claims of Bernofsky.
Pursuant to FRCP 59(b), this Motion is served within 10 days of entry of Judgment.
Bernofsky seeks recusal of the Honorable Judge Berrigan, and, in the alternative, an
amendment of the judgment to reinstate his claims of retaliation and defamation.
II. STANDARD OF REVIEW
The standard of review of this Motion to Amend Judgment and/or Motion for New Trial
is the same standard of review as that of a motion for summary judgment.
Judgment as a matter of law is proper where "there is no legally sufficient evidentiary
basis for a reasonable jury to find for [a] party." Fed. R. Civ. Proc. 50(a)(1). Of course, "we
view the entire trial record in the light most favorable to the non-movant, drawing reasonable
inferences in its favor." Burch v. Coca-Cola Co., 119 F.3d 305, 313 (5th Cir. 1997).
We test the sufficiency of the evidence under the standard enunciated in Boeing Co. v.
Shipman, 411 F.2d 365 (5th Cir. 1969) (en banc), overruled on unrelated grounds, Gautreaux v.
Scurlock Marine, Inc., 107 F.3d 331, 336-38 (5th Cir. 1997) (en banc), which is the same
standard the district court employs. See Atkin v. Lincoln Property Co., 991 F.2d 268, 270 (5th
Cir. 1993). Under Boeing, "[t]here must be a conflict in substantial evidence to create a jury
question." 411 F.2d at 375. Substantial evidence is "evidence of such quality and weight that
reasonable and fair-minded men in the exercise of impartial judgment might reach different
conclusions." Id. at 374; see also Krystek v. University of Southern Mississippi, 164 F.3d 251,
255 (5th Cir. 1999).
III. SUMMARY OF THE FACTS RELEVANT TO THIS MOTION
Plaintiff filed a motion for recusal early on in this case. The motion was denied on
November 23, 1998. See Exhibit A. Although the Honorable Judge Berrigan admitted to
teaching at Tulane Law School, which is a component of the defendant in this case, she wrote in
her Minute Entry of November 23, 1998, that her only teaching undertaking at the law school
was substitute teaching a few classes for Judge Schwartz, which involved no compensation.
(1)
The Honorable Judge Berrigan responded to the issue of recusal at the U.S. Fifth Circuit
level in a letter of June 21, 1999. See Exhibit D. In this letter, Judge Berrigan
admitted to initially agreeing to recuse herself and then changing her mind. Her reason for not recusing
herself was her view of the law of recusal that the only two grounds for recusal are impartiality or
the appearance of impartiality. Judge Berrigan at that time stated that she honestly believed that
neither of the two grounds of recusal applied to this case.
However, the relationship between the Tulane Law School and Judge Berrigan has
materially changed since Judge Berrigan's letter of June 21, 1999. In November, 1999, she was
appointed to teach a three week class in Greece in July, 2000, for which she will receive a stipend
of $5,500.00. From this stipend amount she will pay her own travel and lodging expenses for
three weeks. She will teach a one hour class daily. See Exhibit B.
Judge Berrigan has known of teaching this class for Tulane Law School since November,
1999, and has failed to disclose this fact to Bernofsky or his counsel. Bernofsky learned of Judge
Berrigan's new teaching assignment through independent sources. Upon learning of the new
teaching assignment, Bernofsky asked on April 4, 2000, for recusal of Judge Berrigan. See
Exhibit C. While waiting for a reply to this letter,
Bernofsky was surprised with a decision on Tulane's motion for summary judgment in Tulane's favor,
dismissing Bernofsky's entire case.
IV. RECUSAL IS REQUIRED IN THIS CASE
Because Judge Berrigan is receiving compensation and prestige in teaching for Tulane
law school in Greece, she should recuse herself.
The Guide to Judiciary Policies and Procedures, 1999 Ed. Vol II, Chapter V Section
3.4(a) at page V-39 states that a judge who teaches at a law school should recuse himself from all
cases involving that institution as a party. See Exhibit E. This judiciary policy mandates that
Judge Berrigan recuse herself.
The Fifth Circuit has set the standards for recusal in the case of Barbara W. 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'."
Id. Subsection (b) of that same section further requires that he recuse himself in other specified
circumstances.
Under 28 U.S.C. §455(b), he shall also disqualify himself in the following
circumstances: "(4) He knows that he . . . has a financial interest in the subject matter in
controversy or in a party to the proceeding . . . "
Judge Berrigan should recuse herself under both Section 455(a) and 455(b)(4). In
accepting such an obvious perquisite as teaching a three week summer course in Greece for the
Tulane Law School, Judge Berrigan has placed herself in a situation where, in a matter to be
determined by this Court with Tulane as the defendant, her impartiality might reasonably be
called into question. Judge Berrigan now has a financial interest in Tulane.
Not only does the teaching position come with a stipend of $5500.00 that can be spent in
any manner, 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;
Justice Harry Blackmun - 1992;
Chief Justice William Rehnquist - 1995, 1997;
Justice Ruth Bader Ginsburg - 1999.
See Exhibit B.
To state the obvious, there is prestige in being asked to participate in a program
whose past participants include four Justices of the U.S. Supreme Court, including the Chief
Justice. Chief Justice Rehnquist and Justice Scalia participated in the program more than one
year. If Judge Berrigan would like to have this teaching position abroad for any future year, it
appears to a reasonable person that she has a financial interest in Tulane.
In Health Services Acquisition Corp. v. Liljeberg, 796 F.2d 796, 800 (5th Cir. 1986), the
Fifth Circuit observed that "[t]he goal of the disqualification statute is to promote public
confidence in the judicial system by avoiding even the appearance of partiality. Chitimacha
Tribe v. Harry L. Laws Co., 690 F.2d 1157, 1165 (5th Cir. 1982), cert. denied, 464 U.S. 814,
104 S.Ct. 69, 78 L.Ed.2d 83 (1983). In particular, Section 455(a) was intended to establish an
objective test so that "disqualification should follow if the 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 (5th Cir.), cert. denied, 449 U.S. 820, 101 S.Ct. 78, 66
L.Ed.2d 22 (1980). See also Hall v. Small Business Administration, 695 F.2d 175 (5th Cir.
1983); United States v. Holland, 655 F.2d 44 (5th Cir. 1981); Whitehurst v. Wright, 592 F.2d
834 (5th Cir. 1979).
Judge Berrigan, when faced with the recusal issues prior to June, 1999, decided that, in
her view, there was no impartiality and no appearance of impartiality. However, the proper
question is whether a reasonable person who knows all of the circumstances would harbor doubts
about the judge's impartiality. Under the proper standard, and with the latest facts of the Tulane
Law School Summer School Abroad appointment, Judge Berrigan is legally compelled to recuse
herself.
The judge can himself decide whether the claim asserted is within Section 455. If he
decides that it is, then a disinterested judge must decide what the facts are. See 13A C. Wright,
A. Miller & E. Cooper, Federal Practice and Procedure §3550 (1984) and the cases cited there.
A review of recusal cases supports the conclusion that Judge Berrigan should recuse
herself.
The circumstances of the Levitt case that were not sufficient for recusal of the judge are
that the judge's wife was a student at the university defendant; the judge received his degrees
from the university defendant; the judge's prior law firm has done business with the university
defendant; judge was a member of Phi Beta Kappa and an issue in the case was the falsification
of Phi Beta Kappa credentials; timing of judge's rulings; and a comment of the judge's law clerk.
Barbara W. Levitt V. University of Texas at El Paso, et al., 847 F.2d 221 (5th Cir. 1988).
In the case at bar, Judge Berrigan teaching a summer school class in Greece for
compensation is a much stronger connection with the university than any connection outlined in
the Levitt case.
The legislative history indicates that Section 455(a) was meant to lessen the traditional
"duty to sit," and, as the Supreme Court has indicated, to require avoidance of even the
appearance of partiality. Liljeberg v. Health Serv. Acquisition Corp., 486 U.S. 847, 860- 61,
108 S.Ct. 2194, 2202-03, 100 L.Ed.2d 855 (1988). Recusal may be required even in the absence
of actual partiality if there is an objectively reasonable basis for doubting the judge's impartiality.
Id.; see Code of Judicial Conduct Canon 2 (1973) ("[A] judge should avoid impropriety and the
appearance of impropriety in all his activities.") (emphasis supplied).
The proper standard for ascertaining whether a judge's impartiality might reasonably be
questioned under Section 455(a) is whether the charge of lack of impartiality is grounded on facts
that would create a reasonable doubt, not in the mind of the judge, or even necessarily that of the
litigant, but rather in the mind of the reasonable person. See United States v. Cowden, 545 F.2d
257, 265 (1st Cir. 1976), cert. denied, 430 U.S. 909, 97 S.Ct. 1181, 51 L.Ed.2d 585 (1977).
Section 455(a) requires a contextual, case-by-case analysis. Weighing all the factors in
the present case, a reasonable person viewing all the circumstances would question the
impartiality of the judge. Therefore, Judge Berrigan should recuse herself.
The Eleventh Circuit case of Dr. Kathleen Johnson Wu, et al. v. Joab Thomas,
University of Alabama Board of Trustees, et al., (11th Cir. 1993), considered whether a judge
with ties to a university should recuse himself in a case against the university.
In denying plaintiffs' recusal motion, Judge Guin noted that he receives no salary as an
adjunct professor and that his duties are limited to letting law students intern in federal court and
judicial chambers for one semester. He also wrote that he has not donated money to the
University for many years.
On these facts, the Eleventh Circuit held that no reasonable observer would question
Judge Guin's impartiality. The case at bar is distinguished from the Dr. Wu case because Judge
Berrigan is receiving compensation from Tulane and she occupies a more prestigious position
with the university. Therefore, Judge Berrigan, unlike Judge Guin, should recuse herself.
A judge's "background and associations" do not justify recusal. United States v.
Alabama, 828 F.2d 1532, 1543 (11th Cir. 1987). However, Judge Berrigan's connection with
Tulane goes far beyond that.
Bernofsky is asking Judge Berrigan to recuse herself at this time, rescind her rulings in
this case since November, 1999, and allow an impartial judge to preside over this case.
V. TO EXPAND THE MATTERN HOLDING IS TO IGNORE THE UNITED STATES
SUPREME COURT RULING IN ROBINSON, TO IGNORE THE CASE LAW IN
OTHER CIRCUITS ON THIS ISSUE, AND TO IGNORE THE PLAIN LANGUAGE OF
THE STATUTE
In the alternative, if Judge Berrigan does not recuse herself, Bernofsky moves this
Honorable Court to amend its Judgment in this case and reinstate Bernofsky's retaliation and
defamation claims.
This Honorable Court has erred in its holding that Title VII does not protect a former
employee from a negative reference letter by a former employer if that negative reference letter is
motivated by retaliation for participation in a protected activity. This Court admits that the Fifth
Circuit has not addressed this issue. However, in attempting to stretch the language of the
Mattern case to cover the negative reference letter this Court ignores the U.S. Supreme Court
case of Robinson v. Shell Oil Co., 519 U.S. 337 (1997), ignores cases that have addressed this
particular issue in other circuits, and ignores the plain language of the civil rights laws. Under
this Court's ruling, an ex-employee would have little or no protection from a former employer
issuing retaliatory negative reference letters. Under this Court's ruling the only cause of action
for a retaliatory negative reference letter would be to prove (1) retaliatory animus of the former
employer and (2) that the ex-employee was not hired by the potential new employer because of
the negative reference letter. This would be a near impossible to prove because an employer can
invent tens of reasons why it did not hire someone. Under this Court's ruling, retaliatory black
balling of former employees would be a violation of Title VII's anti-retaliation provisions in the
sense that the United States Supreme Court has held.
In Robinson, the United States Supreme 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, which contacted the employee's ex-employer for an employment reference. Claiming
that ex-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 this case, the U.S. Supreme Court held
that there is a cause of action for a negative job reference given by an ex-employer who gives the
negative reference in retaliation for the ex-employee exercising his rights under Title VII. The
Supreme Court could have, but did not, make a ruling that negative job references are not
adverse employment actions. By not making that ruling, this Court is bound not to make that
ruling.
Other than ignoring the clear intent of the U.S. Supreme Court in this area of the law,
this Court ignores the rulings in the other circuits, that have specifically ruled on this issue.
In Hashimoto v. Dalton, 118 F.3d 671, 675 (9th Cir. 1997) the Ninth Circuit held that the
dissemination of a negative job reference constituted retaliation. Additionally, the Ninth Circuit
has recognized that tangible economic loss is not an essential element of a Title VII retaliation
claim. Hashimoto v. Dalton, 118 F.3d 671, 675 (9th Cir. 1997). In Hashimoto, the Ninth
Circuit held that a " 'personnel action' motivated by retaliatory animus" creates liability under
Title VII regardless of whether that action would warrant the award of remedies. Id. Thus,
giving a poor job reference to a prospective employer may constitute an adverse employment
action even if the reference was not material in the employee not getting the job. Id. The Ninth
Circuit reasoned that such an interpretation was necessary to uphold the purposes of Title VII.
Id. In Hashimoto, both the EEOC and the district court found that Hashimoto's supervisor,
Lowery, gave her a negative reference in retaliation for her filing an EEOC complaint for race
and gender discrimination. The Court noted that the dissemination of the adverse job reference
violated Title VII because it was a "personnel action" motivated by retaliatory animus. Id., at
676. Thus, it was irrelevant that Lowery's dissemination of the negative job reference was not
the reason Hashimoto was denied the job she applied for.
Moreover, disclosure of the fact that plaintiff had filed an EEOC complaint against RTC
could be considered an adverse action for purposes of his retaliation claim. Certainly a potential
employer might think twice about hiring someone after finding out that he had filed charges
against his previous employer. See Veprinsky v. Fluor Daniel, Inc., 87 F.3d 881, 894 (7th Cir.
1996) (reversing summary judgment for former employer on plaintiff's claim that defendant
retaliated against him by informing placement firm that plaintiff had filed EEOC charge against
defendant); Rutherford v. American Bank of Commerce, 565 F.2d 1162, 1164 (10th Cir. 1977)
(act of plaintiff's former employer in informing potential employer that plaintiff had filed sex
discrimination charge against defendant was an act of retaliation in violation of Title VII);
Czarnowski v. Desoto, Inc., 518 F.Supp. 1252, 1259 (N.D.Ill.1981) (former employer's
informing potential employer that plaintiff had filed EEOC complaint against former employer
painted plaintiff as "a disgruntled employee or 'troublemaker,' " and constituted retaliation in
violation of Title VII); see also Pantchenko v. C.B. Dolge Co., 581 F.2d 1052, 1055 (2d Cir.
1978) (former employer's refusal to give plaintiff referral letters, if intended as retaliation against
plaintiff for having filed EEOC charge, violates Title VII).
This is exactly the fact situation of the case at bar. The potential employer did not
consider hiring Bernofsky because of the retaliatory disclosure by Tulane that he had sued Tulane
and that he had sued the head of his department personally, which is "technically inaccurate."
However, when the fact that the author of the letter is an attorney completely familiar with the
case, the technical inaccuracy has a ring of retaliatory animus.
In Hashimoto, the Court held that the Plaintiff had adduced sufficient evidence to give
rise to a genuine issue of material fact concerning whether RTC took action against plaintiff in
retaliation for his having filed an EEOC complaint. Defendant's motion for summary judgment
on this claim was denied.
This Court should make the same ruling by denying Tulane's motion for summary
judgment because Bernofsky has adduced sufficient evidence to give rise to a genuine issue of
material fact concerning whether Tulane took action against him in retaliation for his filing his
EEOC complaint and discrimination lawsuit.
In addition to making a ruling in this case that ignores judicial precedent, this Court's
ruling that expands the holding in Mattern also ignores the language of Title VII, as it has been
interpreted by the United States Supreme Court.
Under Section 2000e-2(a)(1) of Title VII, an employer who "otherwise ...
discriminate[s]" with respect to the "terms" or "conditions" of employment on account of an
illicit classification is subject to Title VII liability. It is well established that Title VII bars
discrimination not only in the "terms" and "conditions" of ongoing employment, but also in the
"terms" and "conditions" under which individuals may obtain employment. See, Griggs v. Duke
Power Co., 401 U.S. 424, 432-36, 91 S.Ct. 849, 854-56, 28 L.Ed.2d 158 (1971) (facially neutral
educational and testing requirements that are not reasonable measures of job performance and
have disparate impact on hiring of minorities violate Title VII). Thus, for example, a
requirement of preemployment health examinations imposed only on female employees, or a
requirement of preemployment background security checks imposed only on black employees,
would surely violate Title VII.
This would be the case even though the extra requirement had not caused any of the employees
not to be hired. Hashimoto v. Dalton, 118 F.3d 671, 676 (9th Cir. 1997).
EEOC v. Hacienda Hotel, 881 F.2d 1504 (9th Cir.1989) held that unlawful personnel
action that "turn[s] out to be inconsequential goes to the issue of damages, not liability".
Smith v. Secretary of Navy, 659 F.2d 1113, 1120 (D.C. Cir. 1981) held that "an illegal act
of discrimination whether based on race or some other factor such as a motive of reprisal is a
wrong in itself under Title VII, regardless of whether that wrong would warrant an award of
[damages].".
This Court has stated that the First, Ninth, Tenth and Eleventh Circuits have rejected the
restricted view of the Fifth Circuit in identifying an adverse employment action as an action with
with an immediate economic effect on the employee. There is only one circuit, the Eighth that
agrees with the Fifth Circuit on this issue. Also the DC Circuit has rejected the Fifth Circuit
view. However, neither the Fifth Circuit nor the Eighth Circuit has addressed the issue of a
retaliatory negative reference letter. Bernofsky has cited in this brief cases from the Second,
Seventh, Ninth, Tenth and DC Circuits, all of which have held that there is a cause of action for
retaliation under Title VII for a retaliatory reference letter, whether or not that letter was a factor
in the non hiring of the ex-employee. What this Court lacks in its opinion is case law (the Fifth
Circuit has not addressed this issue) that supports its holding that, in the instance of a retaliatory
negative reference letter, the relevant adverse employment action is the prospective
employer's failure to hire and not the issuance of the letter.
VI. BERNOFSKY HAS PRESENTED SUFFICIENT EVIDENCE OF ISSUES OF
MATERIAL FACTS TO SURVIVE SUMMARY JUDGMENT ON THE RETALIATION
AND DEFAMATION CLAIMS
Even if this Court holds that the relevant employment action here is the prospective
employer's failure to hire, Bernofsky has presented evidence that the University of Houston did
not hire him because of the negative reference letter. Dr. Wolinsky testified that Bernofsky
would have made the short list of candidates for a position at his university, except that he could
not go forward with the application because of the negative reference letter. Page 29 of
Wolinsky's deposition states:
EXAMINATION BY MS. LIVAUDAIS:
Q. I think you testified a while ago
that you thought Dr. Bernofsky would have
made an excellent candidate for the job
search that resulted in the professor being
hired this past September?
A. Yes.
Q. You can't guarantee to us that
Dr. Bernofsky would have been hired at
Houston?
A. No. I couldn't guarantee that.
That is a committee decision. But what I
meant -- I use that word very carefully --
"was a good candidate." What I meant was
Carl would have made a good candidate,
meaning that he would have made a good
choice.
Very often in searches you get
many people who are not good candidates. In
the case of Dr. Bernofsky, I thought that he
would make a good candidate, meaning that he
could certainly have made the short list.
Q. If the good candidates make the
short list --
A. He certainly would have made the
short list.
Q. This position, this tenure track
position that you say you were hoping that
you could find for him, would that involve
teaching duties as well as research duties?
A. Yes.
Q. That is teaching undergraduate or
graduates, or both?
A. Undergraduates.
This is as much proof as any prospective employee could have that a negative reference
letter prevented him from getting employment. The negative reference will prevent a prospective
employee from getting an interview with the short list of candidates. Without being interviewed,
it is impossible to state that any prospective employee would have been hired but for the negative
reference letter.
The University of Houston had open positions that Bernofsky qualified for at the time of
Beal's negative reference letter. Wolinsky testified on page 16:
Q. Now, at the time that you received
his inquiry, were there possibilities at the
University of Houston for a position for
Dr. Bernofsky?
A . Yes, there were.
Q. Would you describe what
possibilities were available at that time?
A. First of all, there were not only
positions available in my department, but
positions on campus. A person like Carl in
that field could look for and seek and find
employment in any number of venues here in
Houston, including the University of
Houston, Rice University that has a
biochemistry department and the Texas
Medical Center, which is a huge life science
research facility.
Here on campus -- I know the
situation best of all. We here -- in
nutrition, for example, Carl could possibly
have qualified for the positions open, and
there were positions open from time to time.
We just filled one, as a matter of fact, in
September of this year.
Then in addition, on campus, there
is a large Department of Biology that has
for the last five years had two and three
positions open every single year for the
past five years, the same for the Department
of Biochemistry, which merged into the
Department of Biology.
There is also the Department of
the College of Pharmacy, which just had
several positions over the last two years
and has hired people over the last two
years.
At the Medical Center, my
knowledge isn't as intimate. With a huge
place like that, with the representation of
biology and biochemistry and molecular
biology and all of the premedical fields,
there are certainly constantly positions
coming open and constantly positions are
being filled.
It was not only in my department
that I was interested in helping Carl, but
it was in all of the departments, all of the
relevant departments at the University of
Houston and relevant departments at the
Texas Medical Center. I think that about
sums it up.
Contrary to the holding of this Court, there were positions open when Bernofsky applied
at the University of Houston. Also, there was a possible research position at Michigan Tech.
The "factual findings" of the Court (Order and Reasons, page 2, footnote 1) are
inappropriate because the Civil Rights Act of 1991 provided for a jury trial for Title VII. This
Court is not the fact finder in this case. Bernofsky has never been given his day in Court. A jury
has never seen his evidence. Instead, this Court has made findings of fact instead of a jury as
required by law. There are genuine issues of material facts in this case. Some of them are as
follows:
1. The "Committee" appointed by Karam was a sham. Each Committee member
testified at his deposition that he did not evaluate Bernofsky's scientific accomplishments over a
three-year period, the purported reason for the Committee's formation. The Committee was
assembled by Karam for the purpose of legitimizing manipulated budget information that was
presented to them and creating a pretext of unsatisfactory performance.
2. Contrary to university regulations, Bernofsky was never permitted to object to the
composition of the Committee, or recommend alternative members, or invite qualified outside
experts to participate in the evaluation. Every aspect of the Committee's findings consisted of
strongly disputed material issues that required trial on the merits. Committee members testified
that they had no idea that their fault finding would be employed by Karam to justify the discharge
of Bernofsky.
3. Committee members Stjernholm and Steele had always been friendly toward
Bernofsky prior to the influence that Karam exercised over them. At their depositions,
Stjernholm, Steele, and Yu-Teh Li testified that they never read, let alone evaluated, the papers
and grant applications supplied to them for review.
4. It is not "undisputed" that Bernofsky was responsible for raising the bulk of his own
salary through research grants. What is undisputed is that the issue of Bernofsky's grant support
and salary was not tried on the merits.
5. Bernofsky not only "wanted" "a machine," but he led a committee of Tulane
professors who worked for years to raise the funds and bring to the Medical School an advanced
item of scientific equipment that was nowhere else found in New Orleans at the time. Had it
been properly and timely installed, the instrument, a $250,000 EPR spectrometer, would have
enabled cutting-edge research in an important new area, greatly enhanced the research capability
and reputation of the Medical School, and allowed Bernofsky to pursue the research needed to
support renewal of his NSF grant. Before the advent of Karam and Corrigan, the project had the
blessing and full support of Dean Fulginitti, the Department Chair, and the Medical School.
6. Before the coming of Karam, Stjernholm had always been friendly toward Bernofsky
and had written many letters of recommendation for him that had not been solicited by him,
including a complimentary letter to the Dean recommending Bernofsky for tenure. In academia,
letters of recommendation are customarily sent upon the request of a third party seeking
information about a candidate.
7. Funding is a serious consideration in any type of academic position that is sought
because it reflects expert opinion of a candidate's qualifications. Furthermore, statement by an
administrator that a candidate did not have a grant when it is listed in his curriculum vitae
impugns the honesty of that candidate and is ground for immediate rejection.
8. Tulane knew that the Air Force grant was approved on February 1, 1995. (Not April
1995). See Exhibit 41 of Opposition to Summary Judgment. Bernofsky was not terminated until
months after that. The Memo of termination was dated in June, 1995.
9. Bernofsky disputes that Tulane inadvertently lost Dr. Campbell's two inquiries for
letters of reference. See Exhibit F.
10. The statements in the Beal letter were false. The Court glosses over the falsity of the
statements by admitting they are technically inaccurate. There is an issue of fact whether the
false statements were written with retaliatory animus. This is a jury issue.
11. Bernofsky listed Karam, Steele, and Stjernholm as his references at Tulane because
they were the professors most familiar with Bernofsky's work at Tulane.
12. The Beal letter damaged the reputation of Bernofsky. Bernofsky had research funds
at the time, and that was important to his reputation. Also, Beal was not asked about the
litigation. He offered that information voluntarily.
Bernofsky reurges, as if restated herein, his arguments stated in his Opposition to
Summary Judgment.
WHEREFORE, Bernofsky requests that Judge Berrigan recuse herself from this case, that
she rescind all of her orders after November 1999, or, in the alternative, that she amend her
judgment to reinstate Bernofsky's claims of retaliation and defamation.
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
Footnote
1. The other circumstance considered in the initial motion for
recusal was the Honorable Judge Berrigan's membership on the Board of Directors of Tulane's Amistad
Research Center, which is partially supported by Tulane and located on the Tulane University campus. Judge
Berrigan indicated that her membership had ended several years prior to her ruling. To
Bernofsky's knowledge, Judge Berrigan's relationship with the Amistad Research Center has not
changed after Judge Berrigan's letter of June 21, 1999.
CERTIFICATE OF SERVICE
I do hereby certify that I have on this 2nd day of May, 2000 served a copy of the
foregoing pleading on all counsel of record by mailing the same by United States mail, properly
addressed, and first class postage prepaid.
