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Beal's Letter
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"His dismissal was not based upon any performance issues, but was strictly a financial decision due to lack of research funds." (Letter from Tulane Counsel, John Beal, to a potential employer, The University of Houston, February 21, 1997.)The above lie about Bernofsky's finances was propagated by Tulane to defame him and hurt his prospects for employment. It was an issue in Bernofsky's "retaliation" lawsuit against Tulane. At the time of his termination in 1995, Bernofsky's new grant from the Air Force provided $124,921 for year-1 and $124,161 for year-2 financing. These figures are reflected in Fig. 1, below, which illustrates Bernofsky's annual grant income for the years shown. Tulane administrators were aware of Bernofsky's new Air Force grant 10 weeks before his termination on April 21, 1995. Judge Ginger Berrigan, after examining this evidence and reflecting on Tulane's briefs, dismissed Bernofsky's lawsuit against Tulane and justified her ruling with comments such as: "The Court finds that [Beal's] statements were substantially true, and even if technically inaccurate, they were not retaliatory." Bernofsky v. Tulane, Civil Action No. 98-1792 c/w 98-2102, Docket #81, Apr. 18, 2000, Order and Reasons, at 17 (bold emphasis added); and,
"[The] Court finds that Beal went out of his way to paint as positive a picture as possible for Bernofsky under the circumstances." Id., at 27.
Despite Bernofsky's history of credible grant support, Tulane has consistently argued that he had an "inability" to generate grant funds. This was their keystone pretext for Bernofsky's discriminatory discharge, and this theme has been dutifully echoed by the court. In reality, despite the loss of his National Science Foundation support in 1994, caused largely by the interference with his research program by a hostile department chair, Bernofsky's grant funding was promising at the time of his separation (Fig. 1). Tulane's related claim, that Bernofsky's salary from his Air Force grant was insufficient to justify an ongoing research position at Tulane, is also untrue. Prior to Jim Karam's chairmanship of the Biochemistry Department, Bernofsky had, at one point, lost grant support for a period of nearly two years. During that period, Tulane allowed him to work for little salary without ever threatening termination while major grant support was being reestablished. In contrast, following his lawsuit of January 1995, Bernofsky was terminated on the premise that he did not have sufficient 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 according to Tulane policy: "When an investigator loses a grant, he or she should be given two grant cycles, or approximately three years, to regain support." Guidelines for the Assignment of Research Space, Tulane University Medical Center, Aug. 26, 1993, p. 3.The strongest refutation of Tulane's claims comes from the Personnel Action Forms supplied by Tulane itself and from Dr. Jen-sie Tou, a colleague and researcher in the same department as Bernofsky, who was unable to attract major grants. For example, from 1980 through 1988, when Tou was a research associate professor, her research efforts were funded by small awards from local agencies (Bernofsky v. Tulane, Civil Action No. 95-358). During that nine-year period, Tou contributed an average of only 5.6% of her salary from grants (Bernofsky's comparable contribution was 36.2%), yet Tou was not terminated. Moreover, despite the fact that Tou had an inferior publication record over that period (59 pages published in scientific journals vs. 231 pages for Bernofsky), she received automatic tenure in 1989, thus eliminating her need to raise any grant funds to support her salary.
Comparison of Research Professors, 1980 - 1988
(Cumulative data over 9 calendar years)Item Bernofsky Tou Research grants $682,351 $ 64,858 Own salary paid from grants 36.2% 5.6% Pages published in scientific journals 231 59 Recommended for tenure in 1989 Yes Yes Received tenure in 1989 No Yes
Finally, it should be pointed out that, even if none of an investigator's grant is used to directly support his or her salary, the host institution still receives about one-third of the total grant award for its own administrative purposes (termed "indirect") which, in many cases, can exceed the salary that the host institution returns to the investigator. During the approximately 20 years that Bernofsky was employed by Tulane, he brought in about $2,167, 679 in grant support, of which $586,669 was "indirect" and $776,181 used for the salaries and fringe benefits of Tulane employees, including himself (see Fig. 2, below). This circumstance notwithstanding, and in order to cope with the artificial "crisis" created by Tulane, Bernofsky and his assistants pleaded with Tulane administrators to allow them to continue their work for little or no salary until an expected grant would be funded. Tulane's response, under the advisory guidance of John Beal, was to terminate the research program that Bernofsky and his assistants spent years developing.
Tulane has repeatedly asserted that only $13,000 was available from Bernofsky's Air Force grant to support his salary, and that this amount was insufficient to justify his ongoing research program at Tulane. This claim is a misrepresentation of the facts. As principal investigator, every aspect of Bernofsky's Air Force grant, including the budget, was created by him. The final version of the budget that was approved by Tulane and ultimately awarded by the Air Force contained $59,240 for year-1 salaries and $62,903 for year-2 salaries. Bernofsky initially chose to pay himself only a modest portion of those budgeted amounts so that he would have funds to pay his assistants, although he was not restricted to that distribution. As is common with research grants, salary funds could be redistributed as long as the changes were reasonable and remained within the budgetary total approved by the granting agency. Tulane's approval and that of the granting agency is all that would be required. In Bernofsky's experience, granting agencies rarely object to changes approved by the host institution. Tulane also cited Bernofsky's research deficits in justifying its discriminatory discharge. The breakdown of Bernofsky's financial contribution to Tulane is summarized by the pie chart (Fig. 2, above), which shows the total amount expended for research purposes. The chart shows that the 20-year aggregate of deficits represents only a small fraction of the "indirect" funds acquired from Bernofsky's grants by Tulane for overhead and administrative purposes. The "other" category includes items such as travel to scientific meetings, library fees, duplication, and long distance charges. The financial "difficulty" that Tulane attached to deficits in Bernofsky's case fails to recognize that small deficits are not uncommon in research, although this fact is acknowledged by the policy statement in Tulane's Guidelines, quoted above. Thus, over the 20-year period, Bernofsky's deficits were only 1.2% of his research expenditures and represented just a small fraction (4.5%) of the "indirect" funds that Tulane acquired from Bernofsky's grants for overhead and administrative purposes. Clearly, Bernofsky was an economic asset and never an economic burden to Tulane, even when his research deficits were moved by Karam from other categories into the category of his salary. Bernofsky signed all of the internal transfers requested by Karam, never suspecting how this seemingly-innocent transaction would be used against him. Ordinarily, such deficits would be considered as institutional "cost sharing," as indicated by the following Tulane policy: ". . .If project expenditures exceed the approved budget, the overrun is considered cost sharing. The excess expenditures remain in the sponsored account to ensure that the account reflects the full cost of the research." (italic emphasis added); and,
". . .[T]he Investigator and his/her Chair or Dean can then determine how to allocate the deficit among unrestricted accounts. Failure to do so will result in Grants and Contracts Accounting clearing the deficit to an unrestricted department account." From: Tulane University Policy on Cost Overruns (revised July 27, 1999), www.tmc.tulane.edu/researchadmin/Retro-Closeout-Deficit.html.
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