Lawsuit Against Tulane University for Retaliation and Defamation
Motion for Reconsideration (Reply)
(Case No. 98-1792 c/w 98-2102, Docket No. 87, May 18, 2000)
UNITED STATES DISTRICT COURT FOR
THE EASTERN DISTRICT OF LOUISIANA
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| DR. CARL BERNOFSKY |
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CIVIL ACTION NO. 98-1792 |
| Plaintiff |
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C/W 98-2102 |
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| VERSUS |
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SECTION "C" (5) |
| TULANE UNIVERSITY MEDICAL SCHOOL |
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| Defendant |
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JUDGE BERRIGAN |
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PLAINTIFF'S REPLY MEMORANDUM TO MEMORANDUM IN OPPOSITION TO
PLAINTIFF'S MOTION 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 replies as follows to Defendant's Opposition to Plaintiff's Motion for
Recusal, and, In the alternative, to Amend Judgment and/or Motion For New Trial:
I. UNITED STATES V. ANDERSON SUPPORTS THE CONCLUSION THAT
JUDGE BERRIGAN SHOULD RECUSE HERSELF
Tulane cites the case of United States v. Anderson, 160 F.3d 152 (5th Cir. 1998). The
language and holding of this case supports the conclusion that Judge Berrigan should recuse
herself. The Fifth Circuit vacated a criminal sentence and remanded the case for resentencing
because it found that the district judge should have recused himself prior to sentencing.
About six weeks prior to sentencing, Anderson's trial counsel testified against Judge
McBryde in proceedings before a special investigatory committee of the Fifth Circuit Judicial
Council. On one day prior to sentencing, Anderson moved for recusal of Judge McBryde. The
Fifth Circuit held that a reasonable person would harbor doubts about Judge McBryde's ability to
remain impartial in a case involving an attorney who had testified adversely to Judge McBryde in
Judicial Council proceedings.
The Fifth Circuit relied on a portion of a Judicial Council Order ordering Judge McBryde
not to participate in cases involving attorneys who have testified against him for a period of three
years. Although the Court stated that the Order was not dispositive, it stated that it demonstrated
that a group of Judge McBryde's own colleagues have concluded that there is reasonable doubt
of Judge McBryde's ability to be impartial arising from an attorney's testifying against him.
Similarly, in the case at bar, 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. (Emphasis added). See
Exhibit E of Bernofsky's Motion. Whether or not the Guide to Judiciary Policies and
Procedures is dispositive of the issue of the recusal of Judge Berrigan, it certainly indicates that
the drafters of the Guide concluded that there is reasonable doubt of a judge's ability to be
impartial in judging a case involving a university when that judge teaches at that university's law
school.
On page four of Tulane's brief, Tulane implies that the Anderson case states that judicial
economy and practicality are factors in considering the issue of recusal. The Anderson case does
not mention judicial economy or practicality. Just because Judge Berrigan has been presiding on
this case for several years does not make her immune from an appearance of partiality nor immune from recusal. The teaching appointment in Greece is a new development and it is by
itself sufficient grounds for recusal.
II. UNITED STATES V. JORDAN SUPPORTS THE CONCLUSION THAT JUDGE
BERRIGAN SHOULD RECUSE HERSELF
Tulane cites the case of United States v. Jordan, 49 F.3d 152 (5th Cir. 1955). The
holding and language of this case supports the conclusion that Judge Berrigan should recuse
herself. The Fifth Circuit in Jordan held that Judge Melinda Harmon should have recused herself
because a reasonable person would question her impartiality. The criminal defendant, Jordan,
was involved in an extremely hostile relationship with a person of a long, close, and multi-faceted friendship with Judge Melinda Harmon. The Court stated: "Public respect for the judiciary demands this result. [Our] stringent rule may sometimes bar trial by judges who have no actual bias and who would do their very best to weigh the scales of justice equally between
contending parties. But to perform its high function in the best way 'justice must satisfy the appearance of justice'."
Even though Judge Berrigan may believe that she has no actual bias, and even though she
would do her very best to weigh the scales of justice between the contending parties, "to perform
its high function in the best way justice must satisfy the appearance of justice." (Emphasis
added.) There is no appearance of justice in Tulane paying for Judge Berrigan to teach a class in
Greece and Judge Berrigan dismissing Bernofsky's case against Tulane.
III. SIZE OF STIPEND IS IRRELEVANT IN RECUSAL ISSUE
Tulane refers to the $5,500.00 stipend paid by Tulane to Judge Berrigan as a "minimal
stipend" and a "relative pittance" and a "de minimis stipend." Maybe to Tulane $5,500.00 is a
pittance. However, recusal is to be considered from the prospective of a reasonable person.
$5,500.00 is not a pittance to a reasonable person. The amount of the stipend is not the deciding
factor. Tulane is implying that a stipend of $20,000 or $30,000 would be sufficient for recusal,
but not $5,500. Would Edwin Edwards have been not guilty if he had gotten only one bag of
money and not the many bags of money he got? The size of the monetary transfer is irrelevant in
determining if a reasonable person would conclude that there is an appearance of partiality
associated with Judge Berrigan receiving money from Tulane to teach in Greece and deciding
this case in favor of Tulane.
IV. THE ROBINSON V. SHELL OIL CO. CASE UPHELD RIGHT OF EX-EMPLOYEE TO SUE FOR RETALIATION IN THE CASE OF A NEGATIVE REFERENCE LETTER
Tulane's footnote (page 7) on Robinson v. Shell Oil Co., 519 U.S. 337 (1986), is baffling.
The facts of Robinson were that Shell Oil Co. fired Robinson. Shortly thereafter, he filed a
charge with the EEOC, alleging that respondent had discharged him because of his race. While
that charge was pending, Robinson applied for a job with another company. That company
contacted Shell Oil Co. for an employment reference. Robinson claimed that Shell Oil Co. gave
him a negative reference in retaliation for his having filed the EEOC charge.
The Fourth Circuit, en banc, affirmed the District Court's determination that former
employees may not bring suit under §704(a) for retaliation occurring after termination of their
employment. 70 F. 3d 325 (1995) (en banc). In a unanimous opinion, the U.S. Supreme Court
reversed the Fourth Circuit decision and held that, because the term "employees" as used in
§704(a) of Title VII includes former employees, Robinson may sue respondent for its allegedly
retaliatory postemployment actions. The specific postemployment action in this case is a
negative reference letter.
In addition to the U.S. Supreme Court holding in Robinson, which controls any
suggestive language of adverse employment action in Mattern, Bernofsky has cited cases that
have held that the discriminatory act is the writing of the negative reference letter, and this cause
of action is not dependent on whether or not the ex-employee would have been hired without the
negative reference letter. This Court has ignored all cited cases in holding that the relevant
adverse employment action is the prospective employer's failure to hire, not the issuance of a
negative reference letter. There is no case law to support this conclusion other than some vague
language in Mattern. The Mattern language cannot be used in a retaliation claim for a negative
reference letter because of the holding in Robinson.
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
CERTIFICATE OF SERVICE
I do hereby certify that I have on this 17th 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.
s/ Victor R. Farrugia
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