Hartz v. Tulane et al.

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Critiques of the Judiciary

An attorney is negligent if he accepts employment and causes the loss of opportunity to assert a claim for recovery.

Jenkins v. St. Paul Fire and Marine Ins. Co.,
422 So.2d 1109 (La. 1982)

Tulane Discharge of Acclaimed Professor O.K.'d by Court

The Pursuit of Justice over Injury to Her Career Ruled Time-Barred by Court;
Claims of Attorney Negligence Dismissed

The 3rd attorney to whom she went for help, Roger D. Phipps, in June, 2006, had the task of explaining to this nationally-recognized cardiothoracic surgeon that the first two attorneys to whom she went for advice about her claims against Tulane University Medical Center failed to properly advise her about filing a timely charge with the U.S. Equal Employment Opportunity Commission (EEOC), and that despite the egregious treatment she suffered at the hands of vindictive Tulane University administrators, her claims against the university would be dismissed on that basis alone.

Dr. Renee Hartz had practiced cardiothoracic surgery at the University of Illinois at Chicago College of Medicine, where she was Professor and Chair of the Section of Cardiothoracic Surgery, and at Northwestern University Medical School, where she was a tenured Professor. In 1997, she was recruited by Tulane with the promise of being immediately considered for tenure. However, following the appointment of a new Department Chairman, she soon experienced a hostile work environment that stemmed from the jealousy and resentment of male colleagues, and in 1999, she filed a charge of sex discrimination with the EEOC.

There followed a decline of collegial relations, a deterioration of the workplace environment, and numerous efforts to resolve her grievances through internal channels. She did not pursue other legal options at that time. In 2002, she was twice nominated for tenure by the Tulane Medical School's Personnel and Honors Committee, the body duly constituted for rendering tenure decisions. Nevertheless, Dr. Hartz was ultimately discharged by executive order, contrary to assertions in the Faculty Handbook that tenure decisions are primarily a faculty function. What Dr. Hartz had not been told is that she was required to file an EEOC charge within 300 days of notice of an adverse employment action that was taken against her. Neither the first nor second attorneys to whom she turned for advice informed her of this critical requirement, resulting in the ultimate loss of all opportunity for relief of her injuries.

The lesson to be learned is this: those who have suffered unlawful discrimination and have been subjected to an adverse employment action should pay a timely visit to their nearest EEOC office and complete the form(s) for filing a charge. This will insure that any legal action, if taken, will not be time-barred because of the rigid 300-day rule. In some states, the charge-filing period is only 180 days. A typical charge form can be seen here.

Hartz v. Tulane et al.

(See PDF)

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA

Renee S. Hartz, M.D. VERSUS THE ADMINISTRATORS OF THE TULANE EDUCATIONAL FUND, and UNIVERSITY HEALTHCARE SYSTEM, L.C. (COLUMBIA/HCA D/B/A TULANE UNIVERSITY HOSPITAL AND CLINIC * * * * * * * * * * * * * * * * * * * *
* * CIVIL ACTION * NO. 06-2977 * * * SECT. A MAG 5 * * [June 8, 2006] * * *

COMPLAINT

1. This suit is authorized and instituted pursuant to 42 United States Code, Sections 2000e-2(a) and 2000e-3(a). Jurisdiction of this Court is established under 28 United States Code, Section 1331. Venue lies with this Court pursuant to 28 United States Code, Section 1391(b) as the acts giving rise to the claims alleged herein occurred within this district, and pursuant to 42 United States Code, Section 2000e-5(f)(3).

2. This is a civil action brought on behalf of the plaintiff, Renee S. Hartz, M.D., a female, to redress the injury caused to her by the deprivation of her rights and privileges as secured by the laws of these United States as a result of the intentional acts of the defendants.

3. Plaintiff, Dr. Hartz, ("Dr. Hartz"), a person of full age and majority, is a resident of Oak Park, Illinois.

4. Made defendants herein are The Administrators of the Tulane Educational Fund, ("Tulane"), which operates the Tulane University School of Medicine; and University Healthcare System, L.C. (Columbia/HCA) D/B/A Tulane University Hospital and Clinic ("TUHC").

5. Dr. Hartz is a physician who received Board Certification in Thoracic Surgery in 1982 with a Recertification in 1991 and 2001. Dr. Hartz holds medical licensure in Illinois and Louisiana. Dr. Hartz earned a Bachelor of Arts (B.A.) from Michigan University (1969), and the degree of Medical Doctor (M.D.) from Northwestern University Medical School (1974). She is a Fellow of the American Board of Thoracic Surgery.

6. During the time period relevant to this action, July, 1997 until June 30, 2003, Dr. Hartz was employed at Tulane University School of Medicine, as a Professor of Surgery, Department of Surgery, Division of Cardiothoracic Surgery, Tulane University School of Medicine, 1430 Tulane Avenue, New Orleans, Louisiana, 70112-2699. Also, during the time period relevant to this action, Dr. Hartz also practiced thoracic surgery at TUHC, the Medical Center of Louisiana at New Orleans ("MCLNO" or "Charity Hospital Campus" and "University Hospital Campus").

7. For fifteen years prior to coming to Tulane, Dr. Hartz practiced as a cardiothoracic surgeon in the Chicago, Illinois area and served as a tenured Associate Professor of Surgery, Department of Surgery, Division of Cardiothoracic Surgery, Northwestern University Medical School, and as a Professor of Surgery, Department of Surgery, Division of Cardiothoracic Surgery, University of Illinois at Chicago College of Medicine, where she was also Program Director of the cardiothoracic training program and Chief of Cardiac Surgery.

8. Dr. Hartz began her employment at Tulane and TUHC in July, 1997. Dr. Hartz was on a three year tenure track with the understanding that she would be considered for tenure during the first year of her employment. However, Dr. Hartz was initially considered for tenure in 1999. In 1999, Tulane denied her tenure. After Tulane denied her tenure in 1999, Dr. Hartz filed a charge of sex discrimination with the Equal Employment Opportunity Commission ("EEOC") asserting sex discrimination based on discriminatory actions that had began within four months of her arrival at Tulane and TUHC and continued thereafter through the reminder of her employment.

9. During her employment at Tulane, her Chairman Dr. Robert Hewitt ("Dr. Hewitt"), from the time he became interim Chairman of Tulane's Department of Surgery in the spring of 1999 until Tulane terminated Dr. Hartz's employment, discriminated against her on the basis of her sex and repeatedly misrepresented her clinical and academic performance. Also, Dr. Hewitt retaliated against Dr. Hartz because she had previously filed an EEOC charge in 1999. Additionally, Dr. Hewitt retaliated against Dr. Hartz for seeking redress of her claim of sex discrimination through the University's internal channels set up to address such matters. Dr. Hewitt's retaliation, among other matters, was accomplished by restricting Dr. Hartz from performing surgery at MCLNO University Hospital, preventing Tulane residents from assisting her at MCLNO, excluding her from Departmental activities, creating a hostile work environment, adversely affecting her surgical privileges at TUHC, and misrepresenting her clinical and academic performance to the administrators of TUHC and to the faculty and administration at Tulane. In 2000, Dr. Hewitt placed the blame for a male surgeon's error on Dr. Hartz. Dr. Hartz was required to take legal action as a result, and after an investigation was ultimately cleared of responsibility. Similarly, Dr. Hewitt was instrumental in adversely affecting her privileges at TUHC in 2002 in response to a patient's death. Again, a subsequent review was favorable to Dr. Hartz. Dr. Hewitt's retaliation and discrimination based on sex against Dr. Hartz continued throughout her employment at Tulane.

10. Dr. Hartz continued as a Professor of Surgery at Tulane, and was again considered for tenure May 20, 2002. The Personnel and Honors Committee, which, under the provisions of Tulane's Faculty Handbook, is the duly constituted faculty body charged with rendering a decision as to whether Dr. Hartz should be awarded tenure, voted in her favor 7-2 to award tenure. The Personnel and Honors Committee voted to award tenure in disregard of Dr. Hewitt's vigorous opposition. Dr. Hewitt had voted against tenure for Dr. Hartz when the Department took a tenure vote. Dr. Hewitt wrote a letter urging the Personnel and Honors Committee not to recommend Dr. Hartz be granted tenure. That letter did not accurately present Dr. Hartz's performance. Dr. Hewitt was not a member of the Personnel and Honors Committee.

11. Despite the recommendation of the duly constituted Personnel and Honors Committee, on June 20, 2002, an administrative committee, entitled the Executive Faculty Committee, vetoed the favorable tenure decision of the Personnel and Honors Committee. Tulane's Faculty Handbook contains no provision authorizing such an executive committee to veto a favorable tenure decision of a duly constituted senior faculty committee — the Personnel and Honors Committee. In fact, according to Tulane's Faculty Handbook, the granting of tenure is appropriately a faculty decision.

12. Dr. Hewitt was a participating member of the Executive Faculty Committee, which vetoed the favorable tenure decision of the Personnel and Honors Committee. Dr. Hewitt did not abstain from the vote taken by the Executive Faculty Committee.

13. The Executive Faculty Committee informed Dr. Hartz of its decision June 21, 2002. Subsequently, the matter was returned to the Personnel and Honors Committee. Again, the Personnel and Honors Committee voted to award Dr. Hartz tenure on July 15, 2002.

14. However, the Executive Faculty Committee, including Dr. Hewitt, vetoed, a second time, the favorable tenure decision of the Personnel and Honors Committee on July 16, 2002. The Dean of Tulane University School of Medicine and Associate Senior Vice President for the Health Sciences, Ian Taylor, M.D., Ph.D., concurred with the Executive Faculty's decision and notified Dr. Hartz by letter of the July 16, 2002 decision on July 17, 2002. The July 17, 2002 letter also reminded Dr. Hartz that the 2002-2003 academic year would be her terminal year at Tulane.

15. Subsequently, on October 19, 2002, Dr. Hartz filed a grievance with Tulane over the decision of the Executive Faculty Committee to veto the recommended tenure. Dr. Hewitt was not a member of the Grievance Committee. The Grievance Committee voted to award tenure to Dr. Hartz on December 11, 2002.

16. On December 20, 2002, Dr. Taylor, Dean of the Tulane University School of Medicine and Associate Senior Vice President for the Health Sciences, appealed the Grievance Committee's decision in favor of Dr. Hewitt to the Senior Vice President for Academic Affairs of Health Sciences and Provost of the University, Lestor A. Lefton. The Senior Vice President for Academic Affairs of Health Sciences and University Provost, Mr. Lefton, did not concur with the Grievance Committee. Thus, Tulane upheld the decision of the Executive Faculty Committee of the School of Medicine (in which the Dean of the School of Medicine and Associate Senior Vice President for the Health Sciences had concurred) that tenure not be awarded to Dr. Hartz. Tulane informed Dr. Hartz of this decision on March 19, 2003.

17. Subsequently, Dr. Hartz appealed to the Faculty, Tenure, Freedom, and Responsibility Committee ("FTFR"), which upheld the decision of the Executive Faculty Committee not to award tenure. Dr. Hartz's attorney and Dr. Hartz personally wrote letters to Ms. Mary Smith, Tulane's Equal Opportunity Officer regarding Dr. Hartz's sex discrimination complaint. On May 28, 2003, Scott Cowen, Ph.D., President of Tulane University, approved the FTFR decision, upholding the decision of the School of Medicine's Executive Faculty Committee not to award tenure. Tulane terminated Dr. Hartz's employment on June 30, 2003 (effective July 1, 2003).

18. At all times relevant to the matters asserted in this action, Tulane School of Medicine and Tulane University Hospital and Clinic acted in "concert", within the context of Title VII, to discriminate against Dr. Hartz on the basis of her sex and to retaliate against her for having previously engaged in protected activity by filing a charge with the Equal Employment Opportunity Commission and also pursuing redress for sex discrimination through the university's internal channels. The Dean of the Tulane School of Medicine and Associate Senior Vice President for the Health Sciences, Ian Taylor, M.D., Ph.D., reports to the Senior Vice President for the Health Sciences Center. The Senior Vice President for the Health Sciences Center reports to the President of Tulane University.

19. Tulane's discriminatory denial of tenure was because of Dr. Hartz's sex, female.

20. A duly constituted, senior faculty committee, the Personnel and Honors Committee, composed of her academic peers, twice voted to award Dr. Hartz tenure. These votes are a demonstration of her qualification for tenure at Tulane. Additionally, her credentials and her previous attainment of tenure at another accredited institution prior to joining Tulane's faculty is further evidence of her qualification.

21. The Executive Faculty Committee's decision, rendered June 20, 2002 and again on July 16, 2002 adversely affected her continued employment at Tulane and ultimately resulted in the termination of her employment. (Tulane notified Dr. Hartz of the decisions on June 21. 2002 and July 16, 2002, respectively.)

22. Upon information and belief, no other male surgeon at Tulane has twice been recommended for tenure by a Personnel and Honors Committee and had such votes for the award of tenure vetoed by the Executive Faculty Committee of the School of Medicine. Thus, Tulane treated similarly situated males more favorably than it did Dr. Hartz. Such action was discrimination based on Dr. Hartz's sex (it was also retaliation for her previous protected activity discussed herein).

23. The discriminatory and retaliatory conduct about which Dr. Hartz complains was a continuing violation of Title VII. The discrimination began soon after Dr. Hartz's arrival in 1997 and continued throughout her Tulane employment until ultimate adverse employment action occurred on May 28, 2003 when Dr. Scott Cowen approved the decision upholding the Executive Faculty Committee's decision to veto the recommendation of an award of tenure for Dr. Hartz made by the Personnel and Honors Committee.

24. Tulane's discriminatory practices and retaliation against Dr. Hartz were made with malice and/or reckless indifference to her federally protected rights.

25. Tulane's denial of tenure is also a breach of contract. The Executive Faculty Committee's decision contradicted provisions of the Faculty Handbook. Additionally, pursuant to the Faculty Handbook, Dr. Hartz was de facto, or automatically, tenured. Such tenure arose based on the fact that Dr. Hartz had previously attained tenure at an accredited institution before she arrived at Tulane and continued as a Professor on a probationary track at Tulane for more than three years. However, Tulane refused to acknowledge such tenure and terminated her employment on June 30, 2003 (effective July 1, 2003).

26. On August 22, 2003 Dr. Hartz filed a charge (number 270-2003-02777) with the United States Equal Employment Opportunity Commission ("EEOC") alleging sex discrimination in the denial of tenure and retaliation for engaging in protected activity under Title VII of the Civil Rights Act of 1964 as amended, 42 United States Code Section 2000e et seq. ("Title VII"). Dr. Hartz's charge identified "Tulane Health Sciences Center", which encompasses Tulane University School of Medicine and Tulane University Hospital and Clinic, as the "employer" against whom the charge was filed.

28. Tulane's tenure denial action was discriminatorily based on sex. This action was in violation of 42 United States Code, Section 2000e-2(a). Also, this action was in retaliation for Dr. Hartz's previously protected activity in which she complained about sex discrimination to the EEOC and internally at Tulane. This action was in violation of 42 United States Code, Section 2000e-3(a).

29. The Equal Employment Opportunity Commission issued Dr. Hartz a right to sue letter dated March 15, 2006.

30. As a result of the intentional acts of discrimination and retaliation by Tulane, Dr. Hartz has suffered damage to her reputation, loss of income, emotional distress, mental anguish, humiliation, and pain and suffering.

31. This claim is being filed within 90 days of receipt of the EEOC's "right to sue" notice for the charge numbered 270-2003-02777. Dr. Hartz has exhausted her administrative remedies and all jurisdictional prerequisites for claims under Title VII have now been met.

32. Dr. Hartz hereby requests a trial by jury on all issues triable by same.

33. Dr. Hartz seeks reinstatement to the rank of Professor of Surgery with tenure, recovery of actual damages — including back pay and (if reinstatement is not feasible) front pay, compensatory damages, punitive damages, costs, legal interest, and attorneys' fees.

WHEREFORE, plaintiff, Renee S. Hartz, prays that defendants, Tulane and Tulane University Hospital and Clinic be cited to appear and answer this complaint, and after due proceedings be had, there be judgment herein in her favor and against defendants, Tulane and Tulane University Hospital and Clinic, for damages as requested herein; and, for a permanent injunction prohibiting further discriminatory and retaliatory action against her by Tulane and Tulane University Hospital and Clinic; together with all costs and legal interest. Plaintiff, Renee S. Hartz, further prays for reasonable attorneys' fees, costs and expenses incurred in this matter; a trial by jury on all issues triable by same; and for all and any other such further relief as justice may deem appropriate and require.

Respectfully submitted,

s/ Roger D. Phipps
Roger D. Phipps # 20326
Evanthea P. Phipps #19857
PHIPPS & PHIPPS
541 Exposition Boulevard
New Orleans, Louisiana 70118
(504) 899-0763

Service Information — U.S. Certified Mail Return Receipt Requested:

1) Scott Cowen, Ph.D.
Office of the President
Tulane University
6823 St. Charles,
New Orleans, LA 70118

2) General Counsel
Tulane University
6823 St. Charles, Gibson Hall Suite 300
New Orleans, LA 70118

3) John Beal, Esq.
Associate General Counsel
Tulane University School of Medicine
1430 Tulane Avenue
New Orleans, LA 70112

4) University Healthcare System, L.C. (Columbia/HCA)
D/B/A Tulane University Hospital and Clinic through its registered agent for service of process
CT System
8550 United Plaza Boulevard
Baton Rouge, Louisiana 70809

5) Senior Vice President for Academic Affairs of Health Sciences
and Provost of Tulane University, Lestor A. Lefton
Tulane University
6823 St. Charles, Gibson Hall Suite 200
New Orleans, LA 70118
6) Mr. James T. Montgomery
President and Chief Executive Officer
Tulane University Hospital and Clinic
1415 Tulane Avenue, HC63 (Medical Affairs)
New Orleans, LA 70112
Fax: 504 588-2211

Case Outcomes

Hartz v. Tulane et al.

The case was assigned to Judge Jay C. Zainey, who did not dismiss Dr. Hartz's claims, including her Title VII EEOC claims against the university. Tulane then requested and was granted leave to file an interlocutory appeal to the Fifth Circuit Court of Appeal for the limited purpose of reviewing the lower court's ruling on the timeliness of the EEOC charge.

The Fifth Circuit held that "the operative date from which the limitations period begins to run is the date of notice of the adverse action, not the date that the adverse action takes place," and it cited U.S. Supreme Court precedent in Delaware State College v. Ricks, 449 U.S. 250, 256 (1980), later afirmed in Ledbetter v. Goodyear Tire & Rubber Co., Inc., 127 S.Ct. 2162, 2168 (2007). The Court concluded that, since Hartz's EEOC charge was filed about 100 days after the limitation period had expired, she was precluded from bringing a claim in federal court.¹

The Fifth Circuit also reviewed and dismissed all other claims that Dr. Hartz had raised in the lower court. The Court then turned an angry eye to Mr. Phipps, the attorney representing Hartz. In an extraordinary display of animosity, the Court seized upon an imprudent remark made by Phipps and proceeded to excoriate him for exhibiting "unprofessional conduct" and a "cavalier disregard" for his client's interests.¹

The Fifth Circuit's gratuitous attack against an attorney who dared represent an aggrieved victim of Tulane's duplicity seemed calculated to dissuade other plaintiffs' attorneys from filing employment discrimination lawsuits against the university. The Court did not recognize that Phipps had filed malpractice claims against Hartz's first two attorneys, and it apparently assumed that he was responsible for Hartz's failure to file a timely EEOC charge.²

References

1. Hartz v. Tulane et al., Opinion, Case No. 07-30506 (U.S. Ct. App., 5th Cir.), April 16, 2008.

2. See Case Notes for Hartz v. Farrugia et al., this Web site: "Notice of Adverse Action."

Hartz Failed to Timely File a Charge of Discrimination Even Though She Had Attorney Representation
*Hartz v. Farrugia et al.*
Days Elapsed	Date	Description
"0"	July 16, 2002	Hartz receives second (and final) letter denying tenure.
250	March 23, 2003	Hartz engages Farrugia to represent her in her case against Tulane.
300	May 12, 2003	Last day to file a charge of discrimination with EEOC.
341	June 22, 2003	Hartz engages attorneys Kutcher and Tygier for assistance in her dispute with Tulane.
365	July 16, 2003	Last day to file a claim of discrimination under the state's anti-discrimination law, La. Rev. Stat. Section 23:301 et seq.^*
402	August 22, 2003	Hartz files charge of discrimination with EEOC.
1,416	June 1, 2006	Hartz engages Phipps to represent her in her case against Tulane.
Subsequent caselaw determined that Dr. Hartz could not have brought a state-law-based discrimination claim against Tulane, which was held to be exempt from coverage under the state anti-discrimination statute after Hartz filed her claim. See Karcioglu v. Admin. of the Tulane Educ. Fund, No. 07-3352, Rec. Doc. 29 (ent. 9/12/07), cited in Hartz v. Farrugia, et al.*, Doc. 39, page 11. See also La. Rev. Stat. Section 23:302(2)(b).

Hartz v. Farrugia et al.

(See PDF)

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA

Renee S. Hartz, M.D. VERSUS VICTOR R. FARRUGIA, ROBERT A. KUTCHER, NICOLE TIGER, and CHOPIN, WAGAR, RICHARD, & KUTCHER, LLP * * * * * * * * * * * * * * * * * * * *
* * CIVIL ACTION * NO. 06-3164 * * * SECT. I MAG 1 * * [June 16, 2006] * * *

COMPLAINT

1. This suit is a malpractice action brought under the Laws of the State of Louisiana. Jurisdiction of this Court is established under 28 United States Code, Section 1332. Venue lies with this Court pursuant to 28 United States Code, Section 1391(a)(1) and (a)(2) as the defendants reside in this district, and as the acts or omissions giving rise to the claims alleged herein occurred within this district.

2. This is a civil action brought on behalf of the plaintiff, Renee S. Hartz, M.D., to redress the injury caused to her by the negligence of defendants regarding certain legal matters fully described herein.

3. Plaintiff, Dr. Hartz, ("Dr. Hartz"), a person of full age and majority, is a resident of Oak Park, Illinois.

4. Made defendants herein are:

1) Victor R. Farrugia ("Mr. Farrugia"), individually, and/or a professional law corporation, a resident of Louisiana, who maintains a law office within this district at 228 St. Charles Ave. Suite 1100, New Orleans, LA 70130-2601;

2) Robert A. Kutcher ("Mr. Kutcher") individually, and/or a professional law corporation, a resident of Louisiana, who maintains a law office within this district, 2 Lakeway Center, 3850 North Causeway Boulevard, Metairie, LA 70002, Suite 900;

3) Ms. Nicole Tiger, individually, and/or a professional law corporation, a resident of Louisiana, who maintains a law office within this district, 2 Lakeway Center, 3850 North Causeway Boulevard, Metairie, LA 70002, Suite 900;

4) CHOPIN, WAGAR, RICHARD, & KUTCHER, L. L. P. , a professional law partnership, a resident of Louisiana, which maintains a law office within this district, 2 Lakeway Center, 3850 North Causeway Boulevard, Metairie, LA 70002, Suite 900.

5. Dr. Hartz is a physician who received Board Certification in Thoracic Surgery in 1982. Dr. Hartz holds medical licensure in Illinois and Louisiana. Dr. Hartz earned a Bachelor of Arts (B.A.) from Michigan University (1969), and the degree of Medical Doctor (M.D.) from Northwestern University Medical School (1974). She is a Fellow of the American Board of Thoracic Surgery.

6. Dr. Hartz was employed at Tulane University School of Medicine, as a Professor of Surgery, Department of Surgery, Division of Cardiothoracic Surgery, Tulane University School of Medicine, from July, 1997 until June 30, 2003. During the time period relevant to this action, Dr. Hartz also practiced thoracic surgery at Tulane University Hospital and Clinic "TUHC", the Medical Center of Louisiana at New Orleans ("MCLNO" or. "Charity Hospital Campus" and "University Hospital Campus"). Tulane considered Dr. Hartz for tenure on May 20, 2002.

8. When Tulane considered Dr. Hartz for tenure on May 20, 2002, the Personnel and Honors Committee voted in her favor 7-2 to award tenure. However, on June 20, 2002, an administrative committee, the Executive Faculty Committee, vetoed the favorable tenure decision of the Personnel and Honors Committee.

9. The Executive Faculty Committee informed Dr. Hartz of its decision June 21, 2002.

10. The matter was returned to the Personnel and Honors Committee, which again voted to award Dr. Hartz tenure on July 15, 2002.

11. On July 16, 2002, the Executive Faculty Committee vetoed, the second favorable tenure decision of the Personnel and Honors Committee.

12. The Dean of Tulane University School of Medicine and Associate Senior Vice President for the Health Sciences, concurred with the Executive Faculty's adverse decision and notified Dr. Hartz by letter, dated July 16, 2002 (which she received on or about duly 17, 2002). The letter, dated July 16, 2002, notified D. Hartz that the 2002-2003 academic year would be her terminal year at Tulane.

13. Dr. Hartz filed a grievance with Tulane over the decision of the Executive Faculty Committee to veto the recommended tenure on October 19, 2002. The Grievance Committee decided the grievance in Dr. Hartz's favor on December 11, 2002.

14. The Dean of the Tulane University School of Medicine and Associate Senior Vice President for the Health Sciences, appealed the Grievance Committee's decision in favor of Dr. Hartz to the Senior Vice President for Academic Affairs of Health Sciences and Provost of the University, Lestor A. Lefton on December 20, 2002. Mr. Lefton upheld the June 21, 2002 decision of the Executive Faculty Committee of the School of Medicine that tenure not be awarded to Dr. Hartz on March 19, 2003.

15. Dr. Hartz appealed to the Faculty, Tenure, Freedom, and Responsibility Committee ("FTFR"), which upheld the June 21, 2002 decision of the Executive Faculty Committee not to award tenure.

16. Scott Cowen, Ph.D., President of Tulane University, approved the FTFR decision, upholding the June 21, 2002 decision of the School of Medicine's Executive Faculty Committee not to award tenure (of which Tulane had notified Dr. Hartz on June 21, 2002 and again on July 16, 2002) on May 28, 200.3_

17. As Tulane had previously notified Dr. Hartz in its July 16, 2002 letter, Dr. Hartz's Tulane employment terminated on June 30, 2003 (effective July 1, 2003), the end of the 2002-2003 academic year.

18. On August 22, 2003 Dr. Hartz filed a charge (number 270-2003-02777) with the United States Equal Employment Opportunity Commission ("EEOC") alleging sex discrimination in the denial of tenure and retaliation for engaging in protected activity under Title VII of the Civil Rights Act of 1964 as amended, 42 United States Code Section 2000e et seq. ("Title VII").

19. The Executive Faculty Committee's adverse decision, rendered June 20, 2002 and again on .July 16, 2002, adversely affected Dr. Hartz's continued employment at Tulane. As a result of the Committee's decision, the 2002-2003 academic year was Dr. Hartz's terminal year at Tulane. (Tulane notified Dr. Hartz of the adverse decision(s) on June 21, 2002 and July 16, 2002, respectively.)

20. Jurisprudential authority directs that the time period for filing a charge with the EEOC begins to run from the notice of adverse action, not when the adverse action finally takes place. The 300-day time period for filing a charge with the EEOC may have began with the notice of denial of tenure on June 21, 2002, or at the latest date, the second notice on July 16, 2002. (Although Dr. Hartz will assert that the time period did not begin until her employment ended on June 30, 2003; however, such an argument may well not be accepted by the court if Tulane and/or TUHC raise the issue in the action designated as C.A. No. 06-2977.

21. Mr. Farrugia began his legal representation of Dr. Hartz prior to April 17, 2003. Mr. Farrugia did not advise Dr. Hartz to file a charge with the EEOC prior to April 17, 2003. Mr. Farrugia did not advise Dr. Hartz to file an EEOC charge until sometime after Tulane terminated Dr. Hartz's employment on June 30, 2003 (effective July 1, 2003). Because of Mr. Farrugia's representation, Dr. Hartz filed an EEOC charge on August 22, 2003. If the 300-day filing period began to run on June 21, 2002, then Dr. Hartz's EEOC charge was filed 127 days too late.

22. If it is determined that Dr. Hartz's August 22, 2003 EEOC charge was not timely, such a determination will preclude Dr. Hartz from going forward with C.A. No. 06-2977. (Without a timely filed charge, which is a jurisdictional prerequisite under Title VII, the district court will lack jurisdiction over Dr. Hartz's Title VII claims). (Even if the court in C.A. No. 06-2977 construes the second notice by letter, dated July 16, 2002, as the date the charge filing period began to run, the charge filed on August 22, 2003 would nevertheless have been untimely.)

23. Also, whatever the determination in C.A. No. 06-2977 concerning the timeliness of Dr. Hartz's August 22, 2003 EEOC charge, Dr. Hartz could have filed a claim of discrimination under Louisiana's state anti-discrimination statute until June 21, 2003. June 21, 2003 is one year after Tulane notified Dr. Hartz she would not be awarded tenure. Unlike Title VII, there is no charge filing requirement as a jurisdictional prerequisite, and suit under that statute would have been timely if filed within 1 year.

24. Mr. Farrugia never informed Dr. Hartz of her rights under Louisiana's state anti-discrimination statute and thus no timely filing was made under state law. If the court in C.A. No. 06-2977 construes the second notice letter, dated July 16, 2002, as the date Tulane provided to Dr. Hartz notice she would not be awarded tenure, then she would have had 1 year from that date, or July 16, 2003, to bring a state law based claim in state court. No timely filing under state law was filed by that date while Mr. Farrugia represented Dr. Hartz.

25. Mr. Farrugia failed to use reasonable care in representing and advising Dr. Hartz when he was representing her.

26. On July 16, 2003, Dr. Hartz sought additional legal counsel from CHOPIN, WAGAR, RICHARD, & KUTCHER, LLP, specifically Mr. Robert A. Kutcher, and his associate, Ms. Nicole Tiger, about how she should proceed with her claims against Tulane University School of Medicine, and TUHC.

27. On that date, July 16, 2003, (one year after the July 16, 2002 letter which provided Dr. Hartz with Tulane's second notice of denial of tenure) Dr. Hartz could have filed a timely action in state court alleging discrimination under the Louisiana anti-discrimination statute. Mr. Kutcher and Ms. Tiger failed to alert Dr. Hartz of such a deadline for filing suit. Mr. Kutcher and Ms. Tiger failed to alert Dr. Hartz that after this date, July 16, 2003, a claim for discrimination under state law would prescribe, that is, be forever time-barred.

28. Also, Mr. Kutcher and Ms. Tiger failed to point out to Dr. Hartz that Mr. Farrugia may have failed to alert her about the date by which she should have filed her EEOC charge in order that there would be no question as to the timeliness of the EEOC charge which could subsequently present an issue which would potentially bar her Title VII action. On July 16, 2003, when Mr. Kutcher and Ms. Tiger failed to advise Dr. Hartz of Mr. Farrugia's (possible) negligence with respect to the EEOC charge, Dr. Hartz would have been able to assert a timely negligence claim against Mr. Farrugia regarding that matter. However, Mr. Kutcher and Ms. Tiger failed to use reasonable care in counseling and advising Dr. Hartz when she sought their legal advice.

29. On account of Mr. Kutcher and Ms. Tiger's failure to inform Dr. Hartz of Mr. Farrugia's (possible) negligence regarding the EEOC charge filing period, Dr. Hartz did not learn of Mr. Farrugia's negligence within the time period allowed for bringing a negligence claim against him regarding the EEOC charge issue, i.e., for the Title VI claims.

30. More than three years elapsed before Dr. Hartz was informed of Mr. Farrugia's (possible) negligence in representing her with respect to her Title VII claims.

31. As a result of the negligence of CHOPIN, WAGAR, RICHARD, & KUTCHER, LLP, specifically, Mr. Kutcher and Ms. Tiger, Dr. Hartz has suffered injuries, which include but are not limited to: 1) loss of her right to proceed against her former employer(s) on a state law based discrimination claim, and the damages available to her in that action; and 2) the loss of her right to proceed against Mr. Farrugia concerning his negligence in representing her in her Title VII claims, and the damages available to her in that action.

32. Dr. Hartz's claim for malpractice is based on:

1) Mr. Farrugia's failure to inform Dr. Hartz that the time period for her to file an EEOC charge may have began to run on June 21, 2002. Such a charge would have had to be filed no later than April 17, 2003;

2) Mr. Farrugia's failure to inform Dr. Hartz that the time period for her to file an EEOC charge may have began to run on July 16, 2002. Such a charge would have had to be filed no later than May 12, 2003;

3) Mr. Farrugia's failure to inform Dr. Hartz that she could have filed a claim of discrimination under Louisiana's state anti-discrimination statute until June 21, 2003, or possibly July 16, 2003;

4) CHOPIN, WAGAR, RICHARD, & KUTCHIER, LLP, specifically, Mr. Kutcher and Ms. Tiger's failure to inform Dr. Hartz that Farrugia had neglected to inform her that she could have filed a claim of discrimination under Louisiana's state anti-discrimination statute until June 21, 2003;

5) CHOPIN, WAGAR, RICHARD, & KUTCHER, LLP, specifically, Mr. Kutcher and Ms. Tiger's failure to inform Dr. Hartz to file a claim of discrimination under Louisiana's state anti-discrimination statute by July 16, 2003;

6) CHOPIN, WAGAR, RICHARD, & KUTCHER, LLP, specifically, Mr. Kutcher and Ms. Tiger's failure to inform Dr_ Hartz that Farrugia neglected to inform her that the time period for her to file an EEOC charge may have began to run on June 21, 2002, and that the EEOC charge would have had to be filed no later than April 17, 2003; and

7) CHOPIN, WAGAR, RICHARD, & KUTCHER, LLP, specifically, Mr. Kutcher and Ms. Tiger's failure to inform Dr. Hartz that Farrugia neglected to inform her that the time period for her to file an EEOC charge may have began to run on July 16, 2002. Such a charge would have had to be filed no later than May 12, 2003.

33. Dr. Hartz was unaware of any possible malpractice issues until she engaged undersigned counsel on May 31, 2006 to represent her in her claims against Tulane and TUHC. Thereafter, Dr. Hartz mailed certain documents to undersigned counsel. In reviewing those documents, on June 4, 2006, undersigned counsel alerted Dr. Hartz about the possibility that Tulane would assert as an affirmative defense that her August 22, 2003 EEOC charge was untimely. Undersigned counsel also informed Dr. Hartz that any state law based discrimination claim she may have had was now prescribed (i.e., time-barred).

34. Under Louisiana law, a claim for malpractice must be filed within one year from when the person knew or should have known malpractice occurred, or within three years of the alleged malpractice. Otherwise, such a claim is thereafter perempted. Accordingly, Dr. Hartz may not wait until her suit designated as C.A. No. 06-2977 is resolved before asserting her claims of malpractice.

35. As a result of the negligence of Mr. Farrugia, Dr. Hartz has suffered injuries, which include but are not limited to: 1) the possible loss of her right to proceed against her former employer(s) on a Title VII claim; and 2) the possible loss of her right to proceed against her former employer(s) on a state law based discrimination claim, and the damages available to her in those actions.

36. Dr. Hartz did not learn of Mr. Farrugia's negligence within the time period allowed for bringing a negligence claim against him regarding the EEOC charge issue, i.e., for the Title VI claims.

37. The time period for bringing an action against Mr. Farrugia for failure to inform Dr. Hartz that she could have filed a claim of discrimination under Louisiana's state anti-discrimination statute until June 21, 2003 has not lapsed, i.e., June 21, 2006.

38. Similarly, the time period for bringing an action against CHOPIN, WAGAR, RICHARD, & KUTCHER, LLP, specifically, Mr. Kutcher and Ms. Tiger, for failure to inform Dr. Hartz that Farrugia had neglected to inform her that she could have filed a claim of discrimination under Louisiana's state anti-discrimination statute until June 21, 2003; failure to inform Dr. Hartz to file a claim of discrimination under Louisiana's state anti-discrimination statute by July 16, 2003; failure to inform Dr. Hartz that Farrugia neglected to inform her that the time period for her to file an EEOC charge may have began to run on June 21, 2002; and failure to inform Dr. Hartz that Farrugia neglected to inform her that the time period for her to file an EEOC charge may have began to run on July 16, 2002, is July 16, 2006.

39. On June 8, 2006, Dr. Hartz brought a civil action (C.A. No. 06-2977) against The Administrators of the Tulane Educational Fund, ("Tulane"), which operates the Tulane University School of Medicine; and Tulane University Hospital and Clinic ("TUHC") alleging discrimination against Dr. Hartz on the basis of her sex and retaliation against her for having previously engaged in protected activity by filing a charge with the Equal Employment Opportunity Commission and also pursuing redress for sex discrimination through the university's internal channels.

40. Dr. Hartz has alleged that this action was in violation of 42 United States Code, Section 2000e-2(a) and 42 United States Code, Section 2000e-3(a).

41.The Equal Employment Opportunity Commission issued Dr. Hartz a right to sue letter dated March 15, 2006.

42. Dr. Hartz's suit (i.e., C.A. No. 06-2977) was filed on June 8, 2006, within 90 days of receipt of the EEOC's "right to sue" notice for the charge numbered 270-2003-02777. She exhausted her administrative remedies.

43. In the suit designated as C.A. No. 06-2977, Dr. Hartz has sought reinstatement to the rank of Professor of Surgery with tenure, recovery of actual damages — including back pay and (if reinstatement is not feasible) front pay, compensatory damages, punitive damages, costs, legal interest, and attorneys' fees.

44. Dr. Hartz has alleged that as a result of the intentional acts of discrimination and retaliation by Tulane, Dr. Hartz has suffered damage to her reputation, loss of income, emotional distress, mental anguish, humiliation, and pain and suffering.

45. As a result of the negligent events referred to herein, Dr. Hartz has suffered mental anguish and emotional distress in addition to financial loss incurred.

46. Dr. Hartz is therefore entitled to damages for the items set out above in such amounts as are reasonable in the premises.

47. In the suit designated as C.A. No. 06-2977, Dr. Hartz has also alleged that Tulane's denial of tenure is also a breach of contract and that she has de facto, or automatic, tenured. While such an assertion is alleged in good faith, relevant jurisprudence holds there is no de facto tenure at Tulane. Thus Dr. Hartz's principal claims are those based on discrimination under Title VIII and state law, and retaliation under Title VI.

WHEREFORE, plaintiff, Renee S. Hartz, prays that defendants, Victor R. Farrugia, CHOPIN, WAGAR, RICHARD, & KUTCHER, LLP, Robert Kutcher, and Nicole Tiger be cited to appear and answer this complaint, and after due proceedings be had, there be judgment herein in her favor and against defendants, Victor R. Farrugia, CHOPIN, WAGAR, RICHARD, & KUTCHER, LLP, Robert Kutcher, and Nicole Tiger for damages as requested herein; together with all costs and legal interest. Plaintiff, Renee S. Hartz, further prays for reasonable attorneys' fees, costs and expenses incurred in this matter; and for all and any other such further relief as justice may deem appropriate and require.

Respectfully submitted,

s/ Roger D. Phipps
Roger D. Phipps # 20326
PHIPPS & PHIPPS
541 Exposition Boulevard
New Orleans, Louisiana 70118
(504) 899-0763

Service Information — Notice of Lawsuit and Service Waiver by U.S. Certified Mail Return Receipt Requested:

1) Victor R. Farrugia, Esq.
228 St. Charles Ave. Suite 1100
New Orleans, LA 70130-2601;

2) CHOPIN, WAGAR, RICHARD, & KUTCHER, LLP
Managing Partner
2 Lakeway Center, Suite 900
3850 North Causeway Boulevard
Metairie, LA 70002;

3) Robert A. Kutcher
2 Lakeway Center, Suite 900
3850 North Causeway Boulevard
Metairie, LA 70002;

4) Nicole Tiger
2 Lakeway Center, Suite 900
3850 North Causeway Boulevard
Metairie, LA 70002.

[Note: The above misspelling of Ms. Nicole Tygier's name was corrected in later pleadings.]

TENURE, TULANE STYLE

SCHWARZ V. TULANE

KARCIOGLU V. TULANE

EMPLOYMENT DISCRIMINATION LAW

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