Upload
others
View
10
Download
0
Embed Size (px)
Citation preview
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
UNITED STATES DISTRICT COURTEASTERN DISTRICT OF KENTUCKY
LEXINGTON DIVISIONCIVIL ACTION NO. 5:09-CV-00244-KSF
______________________________________________________
DEPOSITION OF MICHAEL KOVASH, Ph.D.
______________________________________________________
C. MARTIN GASKELL PLAINTIFF
v.
UNIVERSITY OF KENTUCKY DEFENDANT______________________________________________________
The deposition of MICHAEL KOVASH, Ph.D., was
taken on behalf of the plaintiff before Ann Hutchison,
Registered Professional Reporter and Notary Public in
and for the Commonwealth of Kentucky at Large, at the
law office of Baker, Kriz, Jenkins, Prewitt & Jones,
PSC, 200 West Vine Street, Suite 710, Lexington,
Kentucky, on Tuesday, March 23, 2010, beginning at the
hour of 11:04 a.m. The deposition was taken by notice
and shall be used for any and all purposes allowed by
the Federal Rules of Civil Procedure, including use at
trial.
______________________________________________________
ACTION COURT REPORTERS184 North Mill Street
Lexington, Kentucky 40507(859) 252-4004
Case: 5:09-cv-00244-KSF-REW Doc #: 23 Filed: 09/28/10 Page: 1 of 62 - Page ID#: 418
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
ACTION COURT REPORTERS 2
APPEARANCES
COUNSEL FOR THE PLAINTIFF:
Francis J. ManionGeoffrey R. SurteesAmerican Center for Law & Justice-Kentucky6375 New Hope RoadP.O. Box 60New Hope, Kentucky 40052
COUNSEL FOR THE DEFENDANT:
Barbara A. KrizBaker Kriz Jenkins Prewitt & Jones, PSC200 West Vine Street, Suite 710Lexington, Kentucky 40507
ALSO PRESENT:
Dr. Michael Cavagnero
Case: 5:09-cv-00244-KSF-REW Doc #: 23 Filed: 09/28/10 Page: 2 of 62 - Page ID#: 419
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
ACTION COURT REPORTERS 3
INDEX
DEPONENT: MICHAEL KOVASH, Ph.D. PAGE
EXAMINATION BY:Mr. Manion .................................. 4Ms. Kriz .................................... 50Mr. Manion .................................. 58
REPORTER'S CERTIFICATE ........................... 62
EXHIBITS
NO. DESCRIPTION IDENTIFIED
1 10/15/07 e-mail from Michael Kovash to 10Tom Troland, Michael Kovash, andMike Cavagnero
2 Series of e-mails 14
3 Dr. Kovash's handwritten notes 46
(Above-referenced exhibits accompany original and copy
transcripts.)
Case: 5:09-cv-00244-KSF-REW Doc #: 23 Filed: 09/28/10 Page: 3 of 62 - Page ID#: 420
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
ACTION COURT REPORTERS 4
MICHAEL KOVASH
having been first duly placed under oath, was examined
and testified as follows:
EXAMINATION
BY MR. MANION:
Q. And for the record, you are Michael
Kovash?
A. Michael Kovash.
Q. Spell that last name for the reporter.
A. K-o-v-a-s-h.
Q. All right. Professor Kovash, my name is
Frank Manion. I am one of the lawyers for Martin
Gaskell in a lawsuit that's pending here in federal
court in Lexington concerning generally the hiring
process for the observatory director at the university
back in 2007.
Have you ever been to a deposition before?
A. I have been to a deposition before.
Q. Okay. We always ask people that, and no
matter what the answer is we proceed to tell them what a
deposition is all about. I don't know why we do that,
but we do.
I'm going to ask you a series of questions
about your knowledge, to whatever extent you have it,
concerning this hiring process and other matters that
Case: 5:09-cv-00244-KSF-REW Doc #: 23 Filed: 09/28/10 Page: 4 of 62 - Page ID#: 421
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
ACTION COURT REPORTERS 5
should be relevant. You're expected to give truthful
answers to the best of your recollection. Your
testimony is given under oath. The oath that you've
taken here is the same one that you would take if you
were testifying here in federal court, so that your
testimony is just as important and just as legally
binding as if we were in court. You understand that?
A. I do.
Q. Okay. All of my questions and all of your
answers and anything counsel for the university may say
are being taken down by the court reporter seated at the
end of the table. She will prepare a written transcript
of this proceeding at the conclusion. Anybody coming
along later and reading that transcript will be entitled
to assume that if you answered a question, you
understood it. So the time to tell me you don't
understand a question is before you answer it.
A. Certainly.
Q. Okay. And obviously if you have any
concerns about what I'm getting at, feel free to ask me
and I will try to rephrase the question or maybe ask a
different question. You understand that?
A. Uh-huh.
MS. KRIZ: And don't uh-huh.
THE WITNESS: I'm sorry. As I did
Case: 5:09-cv-00244-KSF-REW Doc #: 23 Filed: 09/28/10 Page: 5 of 62 - Page ID#: 422
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
ACTION COURT REPORTERS 6
that I realized.
MS. KRIZ: You knew I was going to
nudge you.
Q. One of the instructions is you have to
answer verbally, although if we were having a
conversation we would uh-huh --
A. Certainly.
Q. -- gesture and stuff. We can't do that
here.
A. Uh-huh.
Q. The other thing is, you have to let me
finish my question. As tedious as the question may be
and as sure you are that you know where I'm going, for
purposes of the transcript we have to wait till each
other are finished. Is that understood?
A. Yes.
Q. Okay. And every witness violates that
one.
What is your current position, occupation?
A. I'm a professor of physics in the
Department of Physics at U.K.
Q. And how long have you had that position?
A. Well, I've been on the faculty since 1983.
Q. What's your academic background generally?
A. Well, I was trained as a Ph.D. in nuclear
Case: 5:09-cv-00244-KSF-REW Doc #: 23 Filed: 09/28/10 Page: 6 of 62 - Page ID#: 423
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
ACTION COURT REPORTERS 7
physics. I did a postdoc after I was trained, and then
I came here from a postdoc.
Q. In preparation for today's deposition, did
you review any documents or any writings of any kind?
A. Nothing that I myself had not prepared
previously; for example, e-mail messages.
Q. Okay. Anything other than e-mails that
you had prepared or received?
A. No.
Q. At some point in this, since you became
aware of a lawsuit being filed, were you asked by
Ms. Kriz's office to produce e-mails that you may have?
A. Yes.
Q. And did you do that?
A. I did.
Q. Did you withhold any for any reason?
A. Not knowingly, no.
Q. Okay.
MS. KRIZ: For the record, I think
there was an initial request from the internal general
counsel's office, and I -- subsequently. So I think
there may have been a couple of different requests.
Q. All right. Prior to today's deposition
did you speak with anyone about the deposition?
MS. KRIZ: Other than me.
Case: 5:09-cv-00244-KSF-REW Doc #: 23 Filed: 09/28/10 Page: 7 of 62 - Page ID#: 424
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
ACTION COURT REPORTERS 8
A. No. No one.
Q. You didn't speak to any other faculty
members at U.K.?
A. No.
Q. And, of course, you did speak with counsel
for the university?
A. I did.
Q. As you're probably aware -- I'm sure
you're aware -- this involves the observatory director
hiring process back in 2007. Were you part of the
search committee or the advisory committee in that
process?
A. No.
Q. To what extent, if any, were you involved
in that process?
A. At the time, and I'm not now, but at the
time I was Director of Undergraduate Studies in our
department, and as part of my role I served on what is
called a department council committee, and I also
interviewed the finalist candidates for that position,
and I was asked to submit an evaluation of the
candidates for that position. So that was my semi-
official role in the selection process.
Q. As I understand it, you did not have a
vote on the committee?
Case: 5:09-cv-00244-KSF-REW Doc #: 23 Filed: 09/28/10 Page: 8 of 62 - Page ID#: 425
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
ACTION COURT REPORTERS 9
A. That's correct. I was not actually a
member of the selection committee.
Q. Did you participate in any meetings of the
committee as such?
A. Not that I -- no, I don't believe so.
Q. Other than the interview that you did I
believe of Professor Gaskell and Timothy Knauer --
A. Yes.
Q. -- were those the two finalists you
referred to?
A. Yes.
Q. Did you meet with anybody else involved in
the hiring process for that position?
A. I met frequently with the chairman of that
committee, yes.
Q. And that would have been?
A. Tom Troland.
Q. Okay. And what was the nature of those
meetings?
A. Mostly they were simply casual
conservations because I was very interested in how we
were going to fill that position because I found it to
be an important element in our department, and so I was
interested in what the committee was doing, and Tom, as
chairman of the committee, my office was conveniently
Case: 5:09-cv-00244-KSF-REW Doc #: 23 Filed: 09/28/10 Page: 9 of 62 - Page ID#: 426
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
ACTION COURT REPORTERS 10
located on the first floor near the main office, and as
he walked by, roughly once a week he would stop in and
we would have a 10- or 15-minute conversation during the
selection process, that's right.
Q. Again, this is to the best of your
recollection, but how many such conversations do you
suppose you and Tom had during that period?
A. Maybe a half a dozen.
Q. I'm going to show you a document which the
court reporter is going to mark, and I'll ask you some
questions about it.
(Exhibit No. 1 marked.)
Q. For the record I'm showing you what
appears to be an e-mail from Michael Kovash to Tom
Troland --
A. Uh-huh.
Q. -- copy yourself and Mike Cavagnero, and
the subject is Observations on the Director, and the
e-mail is dated October 15, 2007, 10:31 a.m. Is this a
copy of the written evaluation that you referred to
previously?
A. It is. That's right.
Q. So you interviewed both Professor Gaskell
and Tim Knauer?
A. Actually, to be perfectly explicit, I sat
Case: 5:09-cv-00244-KSF-REW Doc #: 23 Filed: 09/28/10 Page: 10 of 62 - Page ID#: 427
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
ACTION COURT REPORTERS 11
in my office with Professor Gaskell for either 30 or 35
minutes for an interview. Tim Knauer I knew very well.
He was actually a student of mine for a while when he
was a graduate student, and so I don't think that he and
I sat for an interview per se. We did have lunch
together during his interview period, and during the
lunch I did have an opportunity to ask him questions
related to -- well, related to picking an observatory
director. So yes to Gaskell in my office, yes to Tim
Knauer during a lunch, a public lunch.
Q. Okay. And this e-mail which we've marked
Exhibit 1 indicates, does it not, the kinds of questions
you were trying to get answers to and the kinds of
qualities you were looking for in a potential
observatory director. Right?
A. Yes. Well, again, as Director of
Undergraduate Studies, I had in my mind sort of a list
of characteristics that I felt were very important that
the observatory director should satisfy, and that's what
I reflected here in this evaluation letter.
Q. Okay. Prior to interviewing Professor
Gaskell had you ever met him before?
A. Not knowingly. As I understand, he had
been in the department some years previous, but I had no
opportunity to either talk with him or -- I guess he
Case: 5:09-cv-00244-KSF-REW Doc #: 23 Filed: 09/28/10 Page: 11 of 62 - Page ID#: 428
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
ACTION COURT REPORTERS 12
gave a public talk, and I was not part of that public
talk, no.
Q. You say in the beginning of the third
paragraph of this e-mail, "On all of these counts, I
felt that Martin had a significant edge over Tim."
Right?
A. Yes, I did.
Q. Was that the conclusion you drew after
speaking with both men?
A. It was.
Q. And I mean prior to this you had been
familiar with Tim -- is it Knauer? Is that how he says
it?
A. Well, maybe that's how I say it.
Q. We haven't been saying it that way, and no
one has corrected me yet.
MS. KRIZ: We hear the K silent. I
think Dr. Kovash does reference Knauer, so I'm not sure
which is the correct.
Q. My question is simply, however he
pronounces his last name, you knew him previously both
as a student and as a colleague?
A. Well, in fact, he was a student. He spent
a summer as a graduate student working with me. He and
I went to Japan together working on an experiment, so we
Case: 5:09-cv-00244-KSF-REW Doc #: 23 Filed: 09/28/10 Page: 12 of 62 - Page ID#: 429
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
ACTION COURT REPORTERS 13
were side by side for a summer. He then had been hired
by the department -- after he finished his master's
degree had been hired by the department to work in our
demonstration setup area, and it was while he was there
that I also worked with him. As a lecturer you work
with the person who occupies that position. So I felt I
knew him relatively well, and then during this lunch
period I had at the opportunity to ask him questions
which were specifically related to his ideas for his
role as an observatory director.
Q. Okay. Did you have any personal animus
towards Tim Knauer at any point?
A. No. I paid his salary. I liked him very
much.
Q. Okay. Other than meeting with Martin
Gaskell and interviewing him --
A. I liked him very much personally.
Q. I understand, yes. Other than this
meeting with Martin Gaskell, did you review any
background materials about Gaskell, things that he had
written or things about him prior to writing this
language?
A. Only perhaps his resume, and actually I
don't remember that I did or did not read his resume.
It would be typical that I would have had an opportunity
Case: 5:09-cv-00244-KSF-REW Doc #: 23 Filed: 09/28/10 Page: 13 of 62 - Page ID#: 430
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
ACTION COURT REPORTERS 14
to read a resume for an applicant that I was going to
interview. I don't remember in this case that I did or
not.
Q. Okay.
MR. MANION: Off the record.
(Off-the-record discussion.)
(Exhibit No. 2 marked.)
Q. We've marked this Exhibit 2 for the Kovash
deposition, and it appears, to me at least, to be a
series of e-mails and responses to e-mails, some of
which you sent or received. I'm not entirely certain
what the order is, but it might help us if we go by the
date.
(Deponent reviews document.)
Q. Having reviewed this exhibit myself, it
appears to me to generally involve contact between
yourself and the U.K. EEO office.
A. EEO?
Q. Equal Employment Opportunity.
A. Okay.
Q. Does that ring a bell?
A. We're talking about Patty Bender's office;
is that right?
Q. Yes.
A. Okay. All right.
Case: 5:09-cv-00244-KSF-REW Doc #: 23 Filed: 09/28/10 Page: 14 of 62 - Page ID#: 431
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
ACTION COURT REPORTERS 15
MR. MANION: Am I getting that right?
MS. KRIZ: Well, the office has been
known as the Office of Institutional Equity, the EEO
office. It's gone by various labels but, you know, I'm
not sure.
MR. MANION: What was it in 2007?
MS. KRIZ: What it specifically --
MR. MANION: Patty -- we'll call it
Patty Bender's office.
MS. KRIZ: Okay.
Q. All right. You had contact with Patty
Bender regarding the hiring for the observatory director
position. Correct?
A. I did.
Q. And did you initiate that contact?
A. I did.
Q. And how did you do that?
A. I called her.
Q. When?
A. Well, I called her after -- okay, now,
you've triggered the response here.
Q. Okay.
A. I felt concerned that the process was not
proceeding in a way that I felt would -- was necessarily
fair and equitable to Mr. Gaskell.
Case: 5:09-cv-00244-KSF-REW Doc #: 23 Filed: 09/28/10 Page: 15 of 62 - Page ID#: 432
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
ACTION COURT REPORTERS 16
Q. Why did you think that?
A. I had a lot of reasons. And actually I
wrote them down. So is it okay if I refer to notes?
Q. It's okay by me.
MS. KRIZ: Whatever you want to do.
Whatever helps you address the question.
A. Okay. So actually I have a number of
points --
Q. Okay.
A. -- on that exact --
Q. Can we get those marked? Are these notes
that you prepared to --
A. These are notes that I prepared so that I
would remember the issues that triggered my response, my
question actually to Patty Bender.
Q. And when did you prepare the notes?
A. This morning at 4:30.
Q. And how many pages of notes?
A. It's three pages of notes, but again,
these are sort of my notes to myself. They aren't
intended to be complete sentences or make much sense to
anybody else, but I'm happy to go through this. This is
the answer to your question.
Q. Okay. Then that's what I want.
MS. KRIZ: Go ahead. You can testify
Case: 5:09-cv-00244-KSF-REW Doc #: 23 Filed: 09/28/10 Page: 16 of 62 - Page ID#: 433
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
ACTION COURT REPORTERS 17
and then after you testify if they want copies, we can
make copies.
A. Okay. So you asked for the -- what
triggered in my mind --
Q. Right.
A. -- my phone call to Patty Bender.
Q. Right.
A. And so the first point was that -- and
it's a cumulation of things. There is no one trigger
point, but there's a cumulation. Early in the search I
met with Mike Cavagnero, and he reported to me at the
time that we had an excellent experienced applicant for
the job. He didn't tell me who he was. He said he was
from the midwest and he had previous experience running
an observatory, and that more than that, he had
experience working with undergraduates. This is
something that I was particularly interested in because
again, I consider that one of the primary roles that the
observatory director would fill is to -- is it support
undergraduate research. So I was -- Mike at the time
was very excited, unusually so I thought, when he told
this to me. So that's the first point.
Q. Okay.
A. Second point is that I did have these
roughly weekly meetings with the chair of the search
Case: 5:09-cv-00244-KSF-REW Doc #: 23 Filed: 09/28/10 Page: 17 of 62 - Page ID#: 434
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
ACTION COURT REPORTERS 18
committee where they were just -- you know, drop in to
my office to discuss the progress that the committee was
making and to discuss, in fact, specific candidates and
to discuss specific committee members points about
specific candidates.
Q. Okay.
A. And Tom at the time and I discussed early
on the fact that Martin had a relatively literal, and,
in fact, biblical version of his own belief in human
evolution. That was the very early part of our
discussion.
Q. And that came from Professor Troland?
A. That came from our discussions in my
office with Professor Troland.
Q. And did you know anything about --
A. I knew --
Q. Let me ask the question for the record.
Did you know anything about Gaskell's
views, alleged views on evolution?
A. No, I did not.
Q. Okay. By the way, just so it's clear, the
first point that you made was about a conversation with
Mike Cavagnero in which he was excited about an
applicant. Do you believe that was Martin Gaskell?
A. I assumed that it was, but he didn't name
Case: 5:09-cv-00244-KSF-REW Doc #: 23 Filed: 09/28/10 Page: 18 of 62 - Page ID#: 435
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
ACTION COURT REPORTERS 19
the applicant for me.
Q. All right. So you were talking about
conversations with Tom Troland when the issue of
Gaskell's beliefs, whatever they may have been about
evolution, came up.
A. Exactly. And so that was the first point
in our discussion was that -- his belief in a relatively
biblical, literal biblical version of human evolution.
And more than that, in our discussions Tom made it clear
that Martin made these beliefs public in various forums
after teaching a class in astronomy, for example, or on
a website or perhaps in other ways that I don't know
about, but that in Tom's estimation he distinguished his
own personal beliefs quite clearly from his scientific
beliefs, and that more than that there was no clash
between his scientific view of the evolution of the
galaxy or even of the planet earth versus -- there was
no clash between that and his own views on human
evolution. So it was public, but he distinguished
between the scientific fact from his own personal
beliefs. So this came out early in our discussions.
Q. Did you ever get a sense from Tom where
and when Gaskell had made these views known?
A. Well, you know, I'm limited in how I can
answer these questions because for one thing, you know,
Case: 5:09-cv-00244-KSF-REW Doc #: 23 Filed: 09/28/10 Page: 19 of 62 - Page ID#: 436
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
ACTION COURT REPORTERS 20
I didn't talk with Gaskell about these issues. I didn't
go to any websites to look up. I didn't review any
papers that Gaskell had produced. This was not
something that was talked about in the hallways or in a
public sort of way that I knew about, so it was
basically these conversations that Tom and I had where I
learned anything that I learned. I was not part of
Gaskell's public discussion five years previous to that
or whenever it happened to be.
Q. So if you -- continue in answering the
question.
A. So Tom had summarized in our discussions
the committee's discussion of Martin and relayed some
specific comments of committee members and again --
Q. Can you tell me what specific comments he
relayed?
A. Well, one committee member was Sally
Shafer, and Tom at the time relayed to me that she had
said that if Gaskell were hired she would lose her
credibility working with school teachers. It would
affect her credibility. And I personally know that this
is a very reasonable attribution to her. I know she's a
nonbeliever, and I know she has no role for religion in
her life. So that was one point that he made.
He said that during the deliberation Steve
Case: 5:09-cv-00244-KSF-REW Doc #: 23 Filed: 09/28/10 Page: 20 of 62 - Page ID#: 437
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
ACTION COURT REPORTERS 21
Ellis raised the point that we couldn't hire Gaskell
because Steve couldn't be his supervisor because Gaskell
was a Ph.D. and Ellis was not. This is a very specious
statement in my estimate.
Q. Why?
A. Because at this point it sounds -- I mean
this is -- yes, this is a university community where we
have people of all different varieties who work together
and for a common goal, and I don't know why someone
would say that we couldn't hire a particular well-
qualified candidate simply because they had a higher
degree than I have if I'm their supervisor. So this has
alerted me. This is one of the things that alerted me
to something.
Q. You thought that was specious, as you
described?
A. I believe so.
Q. Okay. And I think you've just explained
why you thought that. Okay.
A. Tom, as I said a minute ago, was satisfied
that Gaskell had separated his personal from his
scientific beliefs and that was effective in teaching
classes to students and keeping separate from that his
own personal beliefs.
There is Tom's e-mail, which is part of
Case: 5:09-cv-00244-KSF-REW Doc #: 23 Filed: 09/28/10 Page: 21 of 62 - Page ID#: 438
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
ACTION COURT REPORTERS 22
this pack to me where Tom very explicitly uses the word
"liar" to say that anyone who didn't believe that
Gaskell's personal religious beliefs were not part of
the committee's deliberations is a liar.
Q. If you'll refer to Exhibit 2, I think it's
on the first page, the line you're referring to, there's
an e-mail from Thomas Troland to you --
A. Yes.
Q. -- November 15th --
A. The end of the first paragraph. Yeah.
Q. -- at 13:36?
A. So that statement, While others were
sometimes given -- other reasons were sometimes given
for this recommendation, Gaskell is not a good
listener -- an impression I did not form myself -- any
committee member who denies the importance of the
evolution issue in the decision is, to be blunt, lying.
So this is a trigger.
Q. In your mind in listening to what Tom
Troland was telling you, discussing this with him, did
you think that when people were talking about Gaskell's
beliefs on evolution they were connected somehow to his
religious beliefs?
A. Well, going back to the original
statement, which is that Gaskell's beliefs on human
Case: 5:09-cv-00244-KSF-REW Doc #: 23 Filed: 09/28/10 Page: 22 of 62 - Page ID#: 439
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
ACTION COURT REPORTERS 23
evolution were tied to a literal interpretation, literal
biblical interpretation, yes. And it seemed that again
because he could talk about the planet earth and its
evolution over a period of three billion years distinct
from the evolution -- his personal beliefs on human
evolution, that he separated those two and that, in
fact, yes, biblical version played a role.
Q. Either from your notes or from your
recollection, and I don't want to interrupt you too
much, any other comments that were relayed to you by
members of the committee that triggered your ultimately
going to Patty Bender?
A. No other members of the committee. It was
only through Tom that I -- well, okay. That's not quite
true, no. We're going to get to that actually.
Q. All right.
A. That's next.
Q. All right.
A. But before that, I do want to finish this
last issue of discussions with Tom. Tom relayed to me
the biologists' concern related to Gaskell. It was
relatively vague. I didn't know specifically what they
were concerned about other than perhaps this sort of
general statement of losing credibility we've already
heard.
Case: 5:09-cv-00244-KSF-REW Doc #: 23 Filed: 09/28/10 Page: 23 of 62 - Page ID#: 440
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
ACTION COURT REPORTERS 24
Q. Right.
A. And that was the general tone of that
particular discussion.
Q. Okay.
A. I didn't see any correspondence to the
committee from the biologists or anything like that.
Q. Okay. I think you may have already
answered this. Did you ever review anything Gaskell may
have written that touches upon the theory of evolution?
A. No.
Q. And you weren't at the famous lecture at
Memorial Hall?
A. I was not at the lecture.
MS. KRIZ: I guess we'll say famous in
terms of this case. I'm not sure I agree with famous in
terms of its general...
Q. All right. You referenced Sally Shafer's
comments and Steve Ellis's comments. Anything else in
your notes or in your recollection regarding any
comments specifically attributable to any member of the
committee?
A. Not that I can recall today.
Q. How about people who were not members of
the committee but were members of the department?
A. Not directly. I didn't have direct
Case: 5:09-cv-00244-KSF-REW Doc #: 23 Filed: 09/28/10 Page: 24 of 62 - Page ID#: 441
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
ACTION COURT REPORTERS 25
discussions with other members of the department related
to Gaskell's hiring.
Q. Have you at any time throughout this
process or up till today spoken to either Dean Hoch or
Provost Subbaswamy about the Gaskell/Knauer hiring
issue?
A. Not directly, no.
Q. You were reading from your notes, and I'm
sorry to interrupt you about that, but I'd like you to
continue reading from them if they're responsive to my
original question, which is what triggered you --
A. Yes.
Q. -- going to Patty Bender.
A. Yes. The final straw, I guess, and, in
fact, I think it occurred on the same day that I called
Patty Bender, was we have a so-called department
council, where the Director of Graduate Studies,
Undergraduate Studies and various representatives from
the research groups in the department meet with the
department chair, and this is a semi-regular meeting
with the department chair, and various issues affecting
the department are raised and discussed, and it was at
one of these meetings that I asked the department chair
sitting here, Mike Cavagnero, if he could give us an
update on the hiring process for the observatory because
Case: 5:09-cv-00244-KSF-REW Doc #: 23 Filed: 09/28/10 Page: 25 of 62 - Page ID#: 442
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
ACTION COURT REPORTERS 26
by this time I had heard an earful from Tom, and I just
wanted to hear the record straight. And this I found --
I found it disappointing. I was disappointed, and I
felt that, you know, as scientists when we interact even
on a personal level, which is what a search committee is
basically, it's people interacting personally, you ask
someone a question and you -- as scientists we sort of
lay out the point-by-point answers to this. These are
the top candidates, these are the strong points for the
top candidates, these are the particular weaknesses of
the strong candidates. And this is what I was expecting
and this is what I did not get. And unfortunately, this
is a couple of years ago, I don't remember specifically
what was said other than it seemed like the answer that
I got to the question was relatively evasive. And I
didn't hear with clarity what were the strong points and
the weak points of the candidates and how the committee
was proceeding in its deliberations and how they had
come to any conclusions that they had formed, and this
seemed to me to be an appropriate forum at this
department council meeting to ask the question and to
get a straightforward answer to it, and I didn't get
that.
Q. And what did you do after that?
A. I went back to my office and I stewed
Case: 5:09-cv-00244-KSF-REW Doc #: 23 Filed: 09/28/10 Page: 26 of 62 - Page ID#: 443
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
ACTION COURT REPORTERS 27
about it and I decided -- I think it was on that
particular day, that it was time to -- I wanted to get
someone other than me and other than Tom and maybe other
than committee members to review this process and to say
that it wasn't tainted by Gaskell's personal beliefs on
human evolution.
Q. So at that point you had reached a
conclusion, or at least a suspicion, I guess, that in
fact the process was tainted by Gaskell's personal
beliefs on human evolution?
A. I can't reach any conclusions because I
don't have any -- you know, I'm very limited in what I
know personally. It's through these discussions, it's
through my observations of other people and their
discussions.
Q. But you had at least become suspicious?
Let's put it that way.
A. I had certainly become suspicious and
that's -- and one other point I wrote down here, because
I had interviewed Gaskell, and I had agreed that he was
indeed an excellent candidate, if that was, in fact,
what Mike was referring to when he first announced the
mystery candidate.
Q. Right.
A. And I found it very attractive that he had
Case: 5:09-cv-00244-KSF-REW Doc #: 23 Filed: 09/28/10 Page: 27 of 62 - Page ID#: 444
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
ACTION COURT REPORTERS 28
obtained I guess NASA support to hire undergraduates and
to get them involved with research with the telescope.
I thought it was a very, very strong point. It was
something that I had talked with Tim Knauer about and
didn't get a satisfactory response to. And since I felt
this was an important element for the observatory
director, it was something that -- the fact that, you
know, if Gaskell was being superseded by another
candidate, it wasn't clear to me why based on the
scientific story.
Q. Okay. But based on your conversations
with Tom Troland about what committee members were
saying regarding Gaskell's personal beliefs about
evolution --
A. I was suspicious.
Q. Okay. And so that day, after the
departmental council meeting where you didn't get an
answer, you didn't think you got a straightforward
answer --
A. That's right.
Q. -- what step did you take?
A. I called her and I asked her --
Q. Her being Patty Bender?
A. Patty Bender. I called Patty Bender, and
only because I had seen in some earlier student
Case: 5:09-cv-00244-KSF-REW Doc #: 23 Filed: 09/28/10 Page: 28 of 62 - Page ID#: 445
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
ACTION COURT REPORTERS 29
newspaper, there was a story about her office and what
it did, and it sort of stuck in my mind so that I knew
who to call, and I called her and I -- we had a very
short telephone conversation. It was just three or
four minutes. I explained who I was and what my
concerns were. And there was nothing done in writing, I
simply said that I'm concerned that his civil rights may
be violated by the process. Now, in the -- but I
said -- at the time, I did not say his civil rights are
being violated. I said I'm concerned that they may be
violated.
Q. Why did you think at that point that they
may have been violated?
A. For all the reasons that I've just listed
here, all the points, the trigger points that -- as I
saw it.
Q. That in your estimation he was better
qualified for the position than Tim, and issues, in your
opinion, having nothing to do with his suitability for
the position had been taken into consideration?
A. It appeared that way to me.
Q. Let's take a look at this Exhibit 2.
Again, I apologize for having some difficulty in
figuring out which comes first here, but if you turn to
what is labeled page 11, second to the last page,
Case: 5:09-cv-00244-KSF-REW Doc #: 23 Filed: 09/28/10 Page: 29 of 62 - Page ID#: 446
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
ACTION COURT REPORTERS 30
beginning at the bottom of that, does it appear to you,
as it does to me, that beginning at the bottom of that
page there's an e-mail from Tom Troland to Patty
Bender --
A. Uh-huh.
Q. -- dated November 19th at 18:38, and that
continues on to the next page. Correct?
A. Yes.
Q. Prior to that, or above that e-mail on
page 11, there's an e-mail that appears to be from you
to Patty Bender dated November 5, 2007 at 5:08 a.m. Is
that --
A. Well, actually I was in Sweden at the
time, so that's why the time is funny.
Q. Okay. Do you think that that's the first
e-mail you sent to her on this if you take a look at it?
A. I don't know, because I know that at some
point I had written her a letter. She had sent me a
note, and I felt from her note that she had confused my
original request, and that she thought that I was
unhappy -- in fact, this was part of our phone
conversation that first time we talked, that she thought
I was unhappy with the person they were hiring, just
based on the fact that I liked my candidate better and
that they didn't -- she said, oh, this happens all the
Case: 5:09-cv-00244-KSF-REW Doc #: 23 Filed: 09/28/10 Page: 30 of 62 - Page ID#: 447
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
ACTION COURT REPORTERS 31
time, you know. And so I do remember sending her a note
in which I said no, what I'm really interested in here
is making sure this man's civil rights have not been
violated. And so somewhere -- and that may have
predated -- I think that did predate this particular
message.
Q. See, there's an e-mail on page 8 of this
exhibit from you, Michael Kovash, to Patty Bender,
November 15, 2007, 9:08 a.m. --
A. Yeah.
Q. -- and I know from my review of this, and
you can correct me if I'm wrong, that in this you talk
about favored candidate, the civil liberty of each
candidate.
A. That's the message I was thinking of.
Now, that's November 15th.
Q. Right.
A. So that came after this November 5th
message. Okay. Yes.
Q. Okay. And in that e-mail, which let's
stay on page 8 --
A. Okay.
Q. -- you -- I guess Bender had insinuated
that your complaint was that Gaskell was your favorite
candidate and you were just sort of sour grapes?
Case: 5:09-cv-00244-KSF-REW Doc #: 23 Filed: 09/28/10 Page: 31 of 62 - Page ID#: 448
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
ACTION COURT REPORTERS 32
MS. KRIZ: Let me object to the form.
I don't think you can say what Patty Bender insinuated.
MR. MANION: All right.
MS. KRIZ: You can ask him what he
inferred from her statements.
MR. MANION: Okay. That's fair
enough. I'll withdraw that question.
Q. In this e-mail you talk about how you like
Tim Knauer personally and very much want to see him
succeed in life. Correct?
A. Yes.
Q. And you point out that your knowledge of
Gaskell was from your meeting with him?
A. Yes.
Q. It was limited to that. And then you say
that your favored candidate, and you put it in quotes,
because that's the term she used --
A. Yes.
Q. -- is the civil liberty of each candidate.
Right?
A. That's what I said.
Q. Okay.
A. Just to make this distinction for her
quite clear, that's the reason I was making this point
was so that it was clear to her that I was not here as
Case: 5:09-cv-00244-KSF-REW Doc #: 23 Filed: 09/28/10 Page: 32 of 62 - Page ID#: 449
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
ACTION COURT REPORTERS 33
sour grapes, wrong guy got the job kind of thing.
Q. Right. You go on to say in this e-mail:
I believe that the university administration is engaged
in a campaign of spin control so as to prevent him from
becoming the observatory director. What did you mean by
that?
A. Well, okay. That goes back to this -- and
I think I may have overstated that there. A professor,
I try to be reserved in things. I think I may have
overstepped it there. But it goes back to this council
meeting when I didn't feel I was getting straight
answers to straight questions.
Q. You also say in the next sentence:
Although I wasn't personally on the selection committee,
I've talked to its chair at length and to the chair of
our department.
The chair of the search or selection
committee was Troland. Right?
A. That's correct.
Q. And the chair of the department was
Cavagnero?
A. That's right.
Q. And you say these discussions were the
basis for my opinions. Correct?
A. Yes.
Case: 5:09-cv-00244-KSF-REW Doc #: 23 Filed: 09/28/10 Page: 33 of 62 - Page ID#: 450
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
ACTION COURT REPORTERS 34
Q. So it's not just your conversations with
Troland, it was also your conversations with Mike
Cavagnero?
A. Yes.
Q. And at the conclusion of this e-mail you
ask her to review the case, possibly seek legal advice
and then make a recommendation. Right?
A. That's what I did.
Q. Did you get a response from Patty Bender's
office to that request?
A. Well, in a way I did.
Q. What was it?
A. Buried in a message that I received from
her, which is probably in this packet, she did make the
statement in the middle of a paragraph that we have
reviewed this and we don't find any -- basically we
don't find any problems.
Q. Okay.
A. But that came after a job offer had
already been made to Tim Knauer if you look at the
dates.
Q. Okay.
A. So that's another item on my list of
triggers. Although it certainly didn't trigger my call
to Patty originally, it forms part of my continuing
Case: 5:09-cv-00244-KSF-REW Doc #: 23 Filed: 09/28/10 Page: 34 of 62 - Page ID#: 451
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
ACTION COURT REPORTERS 35
concern that there was an effort here at subterfuge,
subversion, whatever so that -- why not finish the job
of reviewing whether the process had been fair to all
the candidates before you make a job offer. Seems to me
the reason you would make a job offer before you had
finished the review process would be if you wanted to
get it set in stone before -- right?
Q. So it was your understanding that although
you had raised the issue of the fairness of the process
before that with Patty Bender --
A. Yes.
Q. -- and were told essentially that they
would investigate your concern --
A. Yes.
Q. -- before that investigation was even
concluded, an offer had already been made to Tim Knauer?
A. The investigation may have been concluded.
I was not aware of the results of the investigation. I
don't know if it had been concluded, but it certainly
wasn't reported back to me because I remember quite
clearly being actually angry that a job offer had been
offered -- a job offer had been sent out before I even
heard back from Bender's office that they had finished
their job.
Q. Okay. So you contacted her, it appears
Case: 5:09-cv-00244-KSF-REW Doc #: 23 Filed: 09/28/10 Page: 35 of 62 - Page ID#: 452
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
ACTION COURT REPORTERS 36
from the first dated e-mail from you on November 5th of
2007?
A. Well, okay, now --
Q. If we look at page --
A. I didn't call her from Sweden. That was a
message that came while I was away. And so I had --
would have called her before I left.
Q. So you were at the departmental council
meeting and you've described that.
A. Yes.
Q. Then you went to your office and stewed?
A. Stewed.
Q. And then you called her that day?
A. I believe so.
Q. How many days after that did you leave for
Sweden?
A. Not very long.
Q. Okay. Because there's an e-mail dated
November 5, which is page 11, from you in which you're
telling Patty Bender I wanted to tell you that I am
working out of the country this week.
A. Yes.
Q. Is it fair to assume that this e-mail
followed your phone conversation with her?
A. Oh, certainly because I -- I would not
Case: 5:09-cv-00244-KSF-REW Doc #: 23 Filed: 09/28/10 Page: 36 of 62 - Page ID#: 453
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
ACTION COURT REPORTERS 37
have -- my initial contact with her was by telephone.
Q. Okay. Now, on page -- bear with me here,
I'm trying to put these in some sort of order. If you
go to the bottom of page 5 to the top of page 6, the
bottom of page 5 it appears to be a start of an e-mail
dated November 7, 2007, at 10:41 a.m. from you to Patty
Bender.
A. November 7, okay.
Q. And you say based upon your -- Patty,
based upon your e-mail from Monday in which you said
that, quote, "There has been no decision yet" on the
observatory director search, I was surprised to learn a
few minutes ago that an offer was made on Monday to Tim
Knauer.
How did you learn that an offer had been
made?
A. I don't remember.
Q. Were you in Sweden when you learned that?
A. I don't remember. I don't remember.
Q. So you talked to her --
A. Before the 5th of November.
Q. Okay. And by the 7th you had learned --
or you learned on the 7th from somebody that an offer
had been made previously to Tim Knauer?
A. It appears that way, that's right.
Case: 5:09-cv-00244-KSF-REW Doc #: 23 Filed: 09/28/10 Page: 37 of 62 - Page ID#: 454
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
ACTION COURT REPORTERS 38
Q. Do you remember who told you that?
A. I don't remember.
Q. All right.
MR. MANION: Off the record.
(Off the record.)
MR. MANION: Let's go back on the
record.
Q. All right. Professor Kovash, I see in
this package three e-mails from you to Patty Bender.
A. Okay.
Q. And I'd just like you to walk through it
with me to make sure I'm not missing one, because
apparently in the e-mail world we do everything from the
back to the front. The first one, the way I understand
this is the one that begins at the bottom of page 11 --
I'm sorry, that's wrong.
A. Top of page 11?
Q. Yeah, top of page 11. And that's dated
November 5 at 5:08 a.m. Okay? That's the first one I
see.
A. Uh-huh.
Q. Then I see one, if you go backwards here,
on page 10, dated November 7 at 10:41, the short one
about I am surprised to learn an offer had been made.
A. Yes.
Case: 5:09-cv-00244-KSF-REW Doc #: 23 Filed: 09/28/10 Page: 38 of 62 - Page ID#: 455
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
ACTION COURT REPORTERS 39
Q. Okay. Then I see one -- if you go to page
8, page 8 from yourself dated November 15, 2007 to Patty
Bender, that's the third one I see, and that's the one
where you talked about your favored "candidate" and
civil liberties.
A. Yes.
MR. MANION: Off the record.
(Off the record.)
MR. MANION: On the record.
Q. There is in this exhibit -- what are we
calling this? Exhibit 2? Exhibit 2, an e-mail that
starts at the bottom of page 6 but this appears to be a
duplicate of the one dated November 5 at 5:08. Does it
not?
A. It does.
Q. And turning the page back, the one that
begins at the bottom of page 5 again appears to be a
duplicate of the e-mail that we previously talked about
sent on November 7 at 10:41 a.m.
A. Yes.
Q. Okay. And going all the way back to
what's labeled page 3, which is actually the first page
of this exhibit, at the bottom there is again what
appears to be a duplicate.
A. Yes.
Case: 5:09-cv-00244-KSF-REW Doc #: 23 Filed: 09/28/10 Page: 39 of 62 - Page ID#: 456
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
ACTION COURT REPORTERS 40
Q. So I think we've looked at every e-mail in
this exhibit that was sent by you, and we've, I hope
clarified which are duplicates.
A. And there are three total.
Q. There are three. Other than those three,
do you know or think -- can you think of any other
e-mails that you sent about this issue to anybody?
Let's start with to Patty Bender.
A. I don't recall -- I mean, three sounds
like the right number to Patty Bender to me.
Q. Okay. Did you send e-mails to anybody
else about the hiring process issue?
A. Tom Troland.
Q. Have you produced those e-mails to
anybody?
A. I certainly did.
MR. MANION: I don't think we've seen
those if there were any.
A. I said Tom Troland. Let me think just a
minute here.
Q. We have identified already in this
deposition an e-mail that you said was your evaluation
of the candidates.
A. There is an e-mail that's about two
sentences long which Tom had sent me an e-mail after the
Case: 5:09-cv-00244-KSF-REW Doc #: 23 Filed: 09/28/10 Page: 40 of 62 - Page ID#: 457
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
ACTION COURT REPORTERS 41
process was finished, I believe, after the offer had
been made, after he had sent his note to Patty Bender,
in which he registered his disappointment with the
process, where he sent me a note, and I think I wrote
back something about spin, some reference to quantum
mechanics, some stupid physics thing, I don't think
there was any particular relevance or importance to. By
this point I had had it up to here, and I wasn't writing
long e-mails any longer related to this, but that's all
that I recall.
MS. KRIZ: I'm trying to think.
A. It's very short and it's about spin.
Q. It may have been --
MS. KRIZ: Off the record.
(Off-the-record discussion.)
MR. MANION: Back on the record.
Q. Other than the e-mail to Troland that you
just described, can you think of any others that you
sent regarding this hiring process?
A. It would have only been to Tom, and that's
the one I remember sending to Tom, and it was very
brief.
MS. KRIZ: It's not familiar to me
either.
MR. MANION: Okay. Fair enough.
Case: 5:09-cv-00244-KSF-REW Doc #: 23 Filed: 09/28/10 Page: 41 of 62 - Page ID#: 458
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
ACTION COURT REPORTERS 42
Q. During part of this deposition, you
referred to notes that you wrote for yourself today.
A. Today.
Q. Have you finished going through the notes?
A. Well, actually, I guess there is one more
issue.
Q. Are there any other issues involving the
hiring process that you recall?
A. Well --
Q. There's got to be a question and answer.
A. I understand. Again, I have limited
direct knowledge.
Q. I understand.
A. But I did have a conversation with Mike
Cavagnero, and Mike related to me that he and the dean
apparently had met with Patty Bender because Patty had
requested a discussion on this topic, and Mike had at
the time said the dean was very angry about this meeting
but that he was all smiles apparently when it came to
time to meet with Patty Bender. And then this offer to
Tim Knauer came soon on -- soon afterwards it seems.
I -- and this is just a personal -- this was a very
heavy-handed dean.
Q. He's no longer at the university.
Correct?
Case: 5:09-cv-00244-KSF-REW Doc #: 23 Filed: 09/28/10 Page: 42 of 62 - Page ID#: 459
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
ACTION COURT REPORTERS 43
A. He's no longer at any university as far as
I know it.
Q. This is Dean Hoch we're talking about?
A. This is Dean Hock we're talking about.
Q. When you talked with Mike about -- did
Mike indicate what the dean was angry about?
A. No. No.
Q. Did you conclude or have an opinion of
what the dean was angry about?
A. I only have an opinion.
Q. And what is your opinion?
A. My opinion is that this process of
evaluating our hiring practices in terms of the civil
rights of the candidates was something that the dean was
very unhappy to take part in.
Q. Okay. What else did Mike tell you about
the meeting with the dean and Patty Bender?
A. Nothing specifically. Nothing
specifically.
Q. I'm sorry, I interrupted you again.
A. No, no, just -- very heavy-handed dean.
Q. Okay. And what knowledge do you have of
the dean's involvement in this hiring process?
A. No direct knowledge.
Q. What indirect knowledge do you have?
Case: 5:09-cv-00244-KSF-REW Doc #: 23 Filed: 09/28/10 Page: 43 of 62 - Page ID#: 460
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
ACTION COURT REPORTERS 44
A. Just what I told you. Very limited.
Q. Have you had any other conversations with
Mike Cavagnero about this hiring process other than ones
you've talked about so far today?
A. Not that I remember.
Q. How about with Tom Troland? Same
question.
A. Those half dozen 10-minute, 15-minute
discussions while the committee was deliberating, I
think is the extent of it, and then once this was
initiated I ceased any discussion whatsoever with anyone
on this topic.
Q. And when you say "this," you're referring
to the lawsuit?
A. Yes.
Q. Going back to this rather confusing
exhibit, which I think we're starting to get a handle
on, Exhibit 2, at the end there is -- at the beginning
of bottom of page 11 and going on to page 12, there is
an e-mail from Tom Troland to Patty Bender.
A. Yes.
Q. And you've seen that before. Correct?
A. In fact, I think I was -- was I on the
distribution? Yes, I was on the distribution originally
for this, so yes.
Case: 5:09-cv-00244-KSF-REW Doc #: 23 Filed: 09/28/10 Page: 44 of 62 - Page ID#: 461
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
ACTION COURT REPORTERS 45
Q. Are the sentiments expressed in that
e-mail by Tom consistent with what he was saying to you
in your office during this hiring process, or at last at
the end of the hiring process?
A. Completely.
Q. Tom says at the top of page 12 of this --
well, beginning at the bottom he says: I know what
observatory committee members said in meetings and
privately, not just their e-mail comments.
You see that sentence?
A. No.
Q. Okay. Start at bottom of page 11.
A. Okay.
Q. It begins a paragraph, "From a moral
perspective, however, I find the decision indefensible.
I was part of the entire process that led to this
decision. I know what observatory committee members
said in meetings and privately, not just their e-mail
comments.
You see that?
A. Yes, I do.
Q. Do you know what Tom meant when he said:
I know what committee members said in meetings and
privately, not just through e-mail comments?
A. I know what he meant. I don't know
Case: 5:09-cv-00244-KSF-REW Doc #: 23 Filed: 09/28/10 Page: 45 of 62 - Page ID#: 462
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
ACTION COURT REPORTERS 46
everything that he knew.
Q. Tell me everything that you think he meant
by that.
A. Well, this was the basis for our
discussions. I mean, this is exactly what we talked
about, was that he was relaying to me in our 10, 15
minute meetings what the committee was saying on any
particular week, and the fact that it appeared to him
that Gaskell's personal beliefs had made a significant
impact on how the committee was proceeding.
Q. Okay.
A. Which is basically what he's saying here.
MR. MANION: I'm going to ask for
copies of the notes, if we can get a copy of that.
MS. KRIZ: Sure.
MR. MANION: Let's go off the record.
(Off the record.)
MR. MANION: Let's just -- so we have
it identified for the record.
(Exhibit No. 3 marked.)
Q. Professor, I'm showing you what we've
marked Exhibit 3, which appears to be a copy of three
pages of the notes that you've been referring to
throughout this deposition. Correct?
A. Yes.
Case: 5:09-cv-00244-KSF-REW Doc #: 23 Filed: 09/28/10 Page: 46 of 62 - Page ID#: 463
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
ACTION COURT REPORTERS 47
Q. And these are notes that you prepared this
morning in preparation for your deposition?
A. Yes.
Q. And as you indicated already, they are
notes, they are not necessarily complete sentences, but
these are notes that you made so that you would
accurately recall relevant facts prior to this
deposition?
A. That was my attempt.
Q. Okay.
MR. MANION: Let me talk to this guy
here for a minute.
(Off the record.)
Q. Professor Kovash, I think you've told me
about three conversations between yourself and Professor
Cavagnero during this process, the first one when he
mentioned this excellent candidate.
A. Yes.
Q. Another one about the dean.
A. Yes.
Q. He was going to meet with Patty Bender and
the dean, and I've already forgotten what the third one
was.
A. Council meeting.
Q. The council meeting.
Case: 5:09-cv-00244-KSF-REW Doc #: 23 Filed: 09/28/10 Page: 47 of 62 - Page ID#: 464
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
ACTION COURT REPORTERS 48
A. And actually, it wasn't "going to meet the
dean," had already met the dean.
Q. Okay. Any other conversations you had
with Mike Cavagnero about this hiring observatory
director issue?
A. Do I remember any others?
Q. Yes. Yes.
A. I do not.
Q. Okay. Now, earlier in your testimony you
related to me a comment that Troland told you that Sally
Shafer had made.
A. Yes.
Q. And you then said that that didn't
surprise you -- I'm paraphrasing here obviously --
A. That's right.
Q. -- because of what you knew about her
religious beliefs or lack --
A. That's correct.
Q. How did you know about her religious
beliefs or whatever they may or may not be?
A. She told me that when we were graduate
students together at Ohio State, and when it came time
to baptize our children, it was a bit of an issue, and
so I was very aware of her religious beliefs.
Q. And you say baptize our children?
Case: 5:09-cv-00244-KSF-REW Doc #: 23 Filed: 09/28/10 Page: 48 of 62 - Page ID#: 465
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
ACTION COURT REPORTERS 49
A. Yes. She and I had been married for 23
years.
Q. Okay. So you were aware of her religious
beliefs?
A. I certainly was.
Q. And I assume you were in favor of
baptizing your children and she was not?
A. That's correct.
Q. Okay.
A. The children were baptized.
Q. Okay. What about other members of the
committee? Are you aware of anything about their
religious beliefs or lack thereof?
A. No.
Q. When this process was going on back in
2007 -- I've never been to the physics and astronomy
department at U.K. that I know of. Are all the
professors' offices on the same floor?
A. We're consolidated but on three floors.
Q. Okay. Was there ever conversation during
that period of time about the issue of evolution and
creationism and that sort of thing just generally?
A. You mean hallway conversation --
Q. Yes.
A. -- or coffee room conversations?
Case: 5:09-cv-00244-KSF-REW Doc #: 23 Filed: 09/28/10 Page: 49 of 62 - Page ID#: 466
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
ACTION COURT REPORTERS 50
Q. Yes.
A. Not that I know of.
Q. Okay. Did you ever hear anything about
the -- whatever it's called, creation museum in
Cincinnati?
A. In our department?
Q. Yeah.
A. No.
Q. Okay.
MR. MANION: Okay. I have no further
questions.
MR. KRIZ: I have a few questions.
-----------
EXAMINATION
BY MS. KRIZ:
Q. Dr. Kovash, I think the record is fairly
clear, but just for my understanding, the -- in your
role in terms of the search process, did you ever speak
directly to any other advisory committee member other
than Tom Troland about their impressions of the
candidates?
A. About their impressions of the candidates?
Q. Correct.
A. It would have been Mike Cavagnero and -- I
mean -- no, I mean, I've related our conversations with
Case: 5:09-cv-00244-KSF-REW Doc #: 23 Filed: 09/28/10 Page: 50 of 62 - Page ID#: 467
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
ACTION COURT REPORTERS 51
Mike.
Q. Okay.
A. And that wasn't really specifically on his
impressions of the candidates other than he volunteered
initially that the applicant -- where there was an
excellent applicant.
Q. At this council meeting hen you asked Mike
specifically a question about, you know, tell us how the
process is working and where it's going, and you've
testified that you felt that Mike's response was
unsatisfactory in terms of providing you the information
you needed. You've also said that you don't recall
specifically what he said.
A. That's right.
Q. Can you recall generally what he discussed
in response to your query that day?
A. Well, what was not discussed was any of
the issue as it relates to Gaskell's personal beliefs.
And if Gaskell was being evaluated at least in part on
his personal beliefs -- and I certainly got that
statement explicitly from Tom Troland -- then I thought
that that should have been a discussion point. When you
review top candidates and there's a reason that someone
isn't advancing or other people are, then you -- yes,
that should be explicitly stated.
Case: 5:09-cv-00244-KSF-REW Doc #: 23 Filed: 09/28/10 Page: 51 of 62 - Page ID#: 468
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
ACTION COURT REPORTERS 52
Q. Did Mike Cavagnero provide you any
information about what criteria was considered by the
committee in making their selection? Although the
belief about evolution was not discussed, did he discuss
any other criteria that informed the committee and --
formed a basis for their conclusions?
A. I can't tell you what they were, but I'm
sure that the discussion was in that general direction,
yes.
Q. Did he advise you that some committee
members had some concerns about Dr. Gaskell's interest
in outreach?
A. No, not that I recall.
Q. Did he raise -- or did he advise you that
certain committee members had some concern that
Gaskell's interests were in research and that this job
did not have any research component associated with it?
A. Say that again for me, please.
Q. Did Mike Cavagnero explain to you that one
of the criteria that was used by the committee in making
their recommendations was that Dr. Gaskell was presumed
to have an interest in -- a primary interest in research
and there was no research component associated with this
position?
A. No.
Case: 5:09-cv-00244-KSF-REW Doc #: 23 Filed: 09/28/10 Page: 52 of 62 - Page ID#: 469
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
ACTION COURT REPORTERS 53
Q. Did he advise you -- well, you don't have
any recollection of the criteria that Dr. Cavagnero
cited in that council discussion about what was used by
the committee in making their decisions?
A. During that council meeting I asked him if
he would review the process, the procedures, the
progress the committee had been making, and he named
candidates that the committee had been reviewing and
were top candidates and that we would invite these
particular people and interview them but -- or maybe at
that point we already had invited the people and had
already interviewed them and had already deliberated on
their suitability for the job, I don't remember
specifically the case.
What we did not get was what I felt was a
clear statement of how the committee came to the
decision that they came to based on a set of criteria,
no, we didn't get a clear set of criteria and how the
candidates racked up against those criteria.
Q. In the context of that council meeting did
you ask Dr. Cavagnero whether the committee had
considered Dr. Gaskell's position on evolutionary
science as a criteria?
A. No. No, I did not.
Q. Other than what Tom Troland had relayed to
Case: 5:09-cv-00244-KSF-REW Doc #: 23 Filed: 09/28/10 Page: 53 of 62 - Page ID#: 470
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
ACTION COURT REPORTERS 54
you, were there any other reasons that you felt Mike
Cavagnero's explanation at council meeting was what
you've later referred to as spin on the process?
A. No.
Q. In terms of any comments made by
Dr. Troland about Gaskell and what criteria was reviewed
by the committee, other than his position on
evolutionary science was there any other aspect of his
personal religious beliefs that were ever referenced?
A. Not that I remember.
Q. Did you ever speak to Sally Shafer about
why she voted against Dr. Gaskell?
A. No.
Q. Did you ever speak to Steve Ellis about
why he voted against Dr. Gaskell?
A. No.
Q. Did Tom Troland actually share with you
the e-mail that was exchanged between the various
committee members during the deliberation process?
A. No. No.
Q. So when you had any of these weekly
discussions, six or seven of them with Tom Troland, it
was merely his recollection of what had been -- what had
occurred rather than him showing you documents about
what had occurred?
Case: 5:09-cv-00244-KSF-REW Doc #: 23 Filed: 09/28/10 Page: 54 of 62 - Page ID#: 471
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
ACTION COURT REPORTERS 55
A. That's exactly the basis for those
discussions.
Q. And did you participate in drafting the
criteria for the position of observatory director?
A. I don't believe I did, no.
Q. And do you have -- did you ever review any
documents that were generated by the advisory committee
as to what they were looking for in the observatory
director position?
A. I have to be -- I have to be careful
because I at some point certainly would have conveyed to
at least the chairman of the department how important I
felt it would be for the observatory director to promote
undergraduate research. Now, it wasn't I don't think
the case that I was asked to make a list of criteria or
rank order them or anything like that, but I'm sure that
I would have at some point, and I can't tell you when or
how, but I would have conveyed that to the chair of the
department, expecting that that would have been a
consideration as the candidates were evaluated.
Q. In terms of what your role would have been
with this observatory, I mean do your classes, would
that have involved the use of the observatory and any
interaction with the observatory director?
A. My interaction with the observatory
Case: 5:09-cv-00244-KSF-REW Doc #: 23 Filed: 09/28/10 Page: 55 of 62 - Page ID#: 472
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
ACTION COURT REPORTERS 56
director, in fact, had been that while I was still
Director of Undergraduate Studies, which was up until
last summer, I had opportunity to place undergraduate
students in to basically work study roles. And I worked
with Tim Knauer to place -- I forget whether one or two
students in the observatory working with him. I also
had an opportunity, again as my role of DUS, to put
students who wanted research credit, academic research
credit, in to research projects, and again working with
Tim Knauer I arranged that a student would work with him
and with Gary Ferland on a research project that soon
got academic credit for. So had I continued as DUS, I
would see more of that over time, but I didn't and so,
no.
Q. And aside from your role as Director of
Undergraduate Studies, would you have had any role at
all in terms of utilization of the observatory in your
course work or in your research?
A. I teach -- in fact, I'm scheduled to teach
again this coming year a senior level -- junior/senior
level research class, and we are anticipating having one
or more telescope-based projects in that class for the
students to do. So yes, I anticipate my -- in fact, the
project that Ferland and Knauer worked with the students
on so far was to -- preparatory so that we could in fact
Case: 5:09-cv-00244-KSF-REW Doc #: 23 Filed: 09/28/10 Page: 56 of 62 - Page ID#: 473
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
ACTION COURT REPORTERS 57
use a telescope to make quantitative measurements, not
just observing but actually making measurements using
some of the instruments on the telescope in our graduate
or our senior level laboratory class, and I run that
senior level lab class.
Q. It sounds like your involvement with the
observatory would be rather limited in terms of your
research and course work.
A. My own personal research has no overlap
whatsoever with astronomy. Well, with observational
astronomy. I do nuclear astrophysics, but that doesn't
use a telescope. And as I'm not a DUS any longer, my
role basically is now limited to these senior level lab
projects.
Q. You had described for us that Tom Troland
had related to you comments that were made by both Sally
Shafer as well as Steve Ellis in the committee meetings.
You did not personally speak to either of those
individuals --
A. That's correct.
Q. -- to question them about those statements
and whether in fact they had made those statements?
A. That's correct. I did not ask them
specifically.
Q. And other than Tom Troland's comments to
Case: 5:09-cv-00244-KSF-REW Doc #: 23 Filed: 09/28/10 Page: 57 of 62 - Page ID#: 474
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
ACTION COURT REPORTERS 58
you about the process, do you have any personal
knowledge as to what factors influenced the committee
members in making the selection that they did?
A. Nothing that I haven't relayed today.
MS. KRIZ: That's all I have. Thank
you.
MR. MANION: Well, she makes me ask
more.
--------------
RE-EXAMINATION
BY MR. MANION:
Q. How long have you known Tom Troland?
A. Twenty-four years. I'm sorry, 24 plus or
minus two maybe, I don't know.
Q. Okay. And do you consider Tom a friend of
yours, or professional colleague, or both?
A. He's certainly a professional colleague,
and I consider him a friend as well.
Q. You say that you had possibly half a dozen
conversations in your office during this hiring process
with Tom Troland. Correct?
A. Yes.
Q. Based on your long acquaintance with Tom,
when he would tell you things that he had heard or had
happened in meetings, did you have any reason to doubt
Case: 5:09-cv-00244-KSF-REW Doc #: 23 Filed: 09/28/10 Page: 58 of 62 - Page ID#: 475
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
ACTION COURT REPORTERS 59
the truth of what he was telling you?
A. No.
Q. You ever known him to be an exaggerator, a
liar, or anything like that?
A. No.
Q. Do you know if Tom has a particular
religious belief or affiliation of any kind?
A. Not that I know of.
Q. It's not something he's ever talked about
in front of you?
A. No. No, sir.
Q. Do you know if he was personally
acquainted with Martin Gaskell prior to this hiring
process?
A. Tom Troland personally? Perhaps through
the association that they had when Gaskell visited, but
I don't know of any time other than that.
Q. He's not somebody that Troland would refer
to as a friend or pal of his or something like that?
A. I wouldn't know.
Q. Okay. Let me show you Exhibit 19 from the
Troland deposition. Exhibit 19 is an e-mail -- I'm just
going to do this the easy way by coming, standing non-
menacingly near you -- is an e-mail dated September 24,
2007 at 7:19 p.m., and various people have testified
Case: 5:09-cv-00244-KSF-REW Doc #: 23 Filed: 09/28/10 Page: 59 of 62 - Page ID#: 476
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
ACTION COURT REPORTERS 60
about this e-mail. It appears to be Tom Troland's
summary of the committee meeting that had taken place
that day.
A. All right.
Q. And it appears that the committee
deliberated upon a set of four criteria which Tom says
are four, but looks to me like they're five -- we'll let
that pass -- and one of those criteria is experience
with outreach programs. Correct?
A. Yes.
Q. Other is experience with undergraduate
teaching and research. Correct?
A. Yes.
Q. And we've got lower division undergraduate
teaching in laboratories?
A. Yes.
Q. Managerial expertise?
A. Yes.
Q. And technical expertise?
A. Yes.
Q. And the results of the rating that was
done by the committee show that Gaskell came out on top
with an 8, score of 8, and that Knauer had a score of 5.
Do you see that?
A. I do.
Case: 5:09-cv-00244-KSF-REW Doc #: 23 Filed: 09/28/10 Page: 60 of 62 - Page ID#: 477
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
ACTION COURT REPORTERS 61
Q. Does that surprise you?
A. No.
Q. Based on your interviewing of the two
individuals?
A. I'm not surprised.
MR. MANION: Okay. I have no further
questions.
MS. KRIZ: Nothing more.
(DEPOSITION CONCLUDED 12:24.)
Case: 5:09-cv-00244-KSF-REW Doc #: 23 Filed: 09/28/10 Page: 61 of 62 - Page ID#: 478
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
ACTION COURT REPORTERS 62
STATE OF KENTUCKY )
COUNTY OF FAYETTE )
I, ANN HUTCHISON, Registered Professional
Reporter and Notary Public, State of Kentucky at Large,
whose commission as such will expire May 3, 2012, do
hereby certify that the foregoing deposition was taken
by me at the time, place, for the purpose and with the
appearances set forth herein; that the same was taken
down by me in stenotype in the presence of the witness
and thereafter correctly transcribed by me upon
computer; and that the witness was duly placed under
oath by me prior to giving testimony.
I further certify that I am not related to nor
employed by any of the parties to this action or their
respective counsel and have no interest in this
litigation.
Given under my hand, this 30th day of March,
2010.
_______________________________ANN HUTCHISON, RPRRegistered Professional ReporterNotary Public, State-at-Large
Case: 5:09-cv-00244-KSF-REW Doc #: 23 Filed: 09/28/10 Page: 62 of 62 - Page ID#: 479
Martin's professional credentials far * EXHIBIT t2ff. f-concern. In fact, my "favored i 2.c3 "" Kovash'"ifi
0..
roundtables in one week.
will volunteer to do lunch with all 3 candidates, and will invitesome students to join me in these, so the host need not worryabout lunch. I will also be happy to meet with each candidatefor one hour, to discuss the detailed job description, preferablylate in the day (4-5) on MWF.
Please let me know if you are willing to volunteer for oneof these host jobs.
The GA's should let me know their schedules next week.
Thanks,Mike C
Subject:Re: observatory directorFrom:"Thomas H. Troland" <[email protected]>Date:Thu, 15 Nov 2007 13:36:03 -0500
To:"Michael A. Kovash" <[email protected]>
Mike,
Having seen the whole interview process play out, and spoken with othercommittee members during meetings and privately, I can say with completeconfidence that the issue of Gaskell's beliefs on evolution werethoroughly discussed, and they played a significant role in thecommittee's recommendation that another applicant be offered the job.While other reasons were sometimes given for this recommendation (e.g.Gaskell is not a good listener, an impression that I did not formmyself), any committee member who denies the importance of the evolutionissue in the decision is, to be blunt, lying.
The elephant was certainly in the room. But it was not invisible.Everybody saw it (including me) and everyone talked about it.
I will be curious to hear how Patty responds. If you need any furtherinformation from me, just let me know.
The circumstances surrounding this regrettable action by the universityoffer more than one inconvenient truth that many, I believe, wouldrather deny.
Tom
At 09:07 AM 11/15/2007, you wrote:Patty,
I may have been confusing about the reason I brought this matter to yourattention in the first place. I am, in fact, quite familiar with TimKnauer, and one summerhe worked with me on a project in Japan. I like him personally and verymuch want tosee his succeed in life. On the contrary, my personal knowledge ofHartin Gaskillamounts. only. to t:he 31T rninu,te", h'e_talked during his interview t-rip. -AUQv,hiie- - -- - -it is blatantly obvious to me thatsurpassTim's, even that wasn't my primary
Case: 5:09-cv-00244-KSF-REW Doc #: 23-1 Filed: 09/28/10 Page: 1 of 10 - Page ID#: 480
candidate" (touse your term) is the civil liberty of each candidate. I believe thatthe primary reasonthat Martin wasn't chosen for the job is his deeply-felt stance on humanevolution -- amatter which is strictly personal, irrelevant to this particular hiringprocess, andinextricably entwined with Dr. Gaskill's civil rights and personalfreedoms.I also believe that the University Administration has engaged in acampaign of spin control so as to prevent him from becoming the observatorydirector. Although I wasn'tpersonally on the selection committee, I have talked to its chair atlength, and tothe chair of our department. These discussions form the basis for myopinions.I am convinced that the matter of Martin's personal feelings aboutevolution,once exposed in the review process, have become the invisible elephantin every subsequent discussion and have in fact guided this injustice.
Based upon your earlier email, I thought that your office would reviewthis case,possibly seek legal advice, and then make a recommendation. However, it nowdoesn't appear to have happened that way, and we don't have the benefitof athird-party review. So I really have only one remaining question: Is ityour opinionthat Martin Gaskill's civil liberties have not been abridged by theUniversity?
Sincerely,Mike Kovash
Bender, Patty wrote:Mike,
Sorry for the delay, I have been running and did not want to give you apartial or uninformed response. I talked to the Dean again about thisposition. The final decision was his and you are correct, he did make anoffer to Mr. Knauer. All the reasons that were considered I cannotdescribe for you. You may want to discuss those with either the Dean oryour Chair. I believe Steve and Mike were in agreement, however I willnot presume to speak for them.
The University is always appreciative when someone expresses concernabout our processes and gives us an opportunity to have conversationsabout how we need to do things at UK. My involvement was to relay yourconcerns and investigate the details in an effort to ensure that theUniversity does not make a hiring decision based on factors which arediscriminatory. However, a legitimate non-discriminatory decision may bemade on many factors above and beyond the apparent weight of someone'sapplication.
Even to my non physics. eye it aWfu3.Ls that VOljr-£-a.v-Ored hadmar", equc;.i:i.tl.()ll.ami experLencBand clearly that. was ta.ken.;L+luWconsideration. However, other factors may also be weighed and may infact be deciding factors in any hiring decision over and above thestrength of the application. References, job fit, economicconsiderations, scholarship and other non-discriminatory factors may
4
Case: 5:09-cv-00244-KSF-REW Doc #: 23-1 Filed: 09/28/10 Page: 2 of 10 - Page ID#: 481
individually or all be considered as part of the hiring process. I hadan opportunity to have this discussion with Mike and Steve before Ireviewed the file and after with Steve.
Ultimately, it was the Dean's decision and he is confident that it wasmade taking into consideration many factors. I am satisfied he made aninformed decision and we had all the appropriate conversations. Theconcerns you and Tom Troland relayed to me were expressed.
I am happy to talk to you about this anytime. Hiring decisions arealways hard and made even more contentious than normal when people knowand like one or more of the applicants. I can only assure you that theDean was the final decision-maker on this position and multiple factorswere taken in consideration.
Please be informed that retaliation against anyone making orparticipating in the investigation of a complaint is prohibited. Anysuch behavior should be reported immediately to me.
I hope I have the opportunity to meet you and Tom Troland in personsometime and look forward to seeing the new observatory!
Thank you!
Patty
Patty Bender
Assistant Vice President for Equal Opportunity
(859) 257-8927
(859) 323-3739 Fax
[email protected]<mailto:[email protected]>
From: [email protected],eduSent: Wednesday, November 07, 2007 10:41 AMTo: Bender, Pattysubject: RE: observatory
5
Case: 5:09-cv-00244-KSF-REW Doc #: 23-1 Filed: 09/28/10 Page: 3 of 10 - Page ID#: 482
Patty.
Based upon your email from Monday in which you said that "There has been nodecision yet" on the observatory director search, I was surprised tolearn afew minutes ago that an offer was made on Monday to Tim Knauer. Is thistrue,and if so, was it made upon the recommendation of your office? (I'm justtryingto reconcile these apparently conflicting statements.)
best,Mike Kovash
Quoting "Bender, Patty" <[email protected]>:
Mike:
I appreciate your initial call and this follow-up email. I have talked toyour colleague Tom Troland and have reviewed a number of emails on thesubject. To date I have also talked to your Chair and Dean. UK's legalofficewas consulted.
As I know you appreciate there are many opinions on this issue. While thereis always a fair amount of spin on and emotion in any issue, especiallyhiring issues, I am trying to assemble the valid arguments/opinions allaround as well. We too try to take a fairly scientific or fact-basedapproachto our recommendations.
There has been no decision yet but I will contact you again and/or you areencouraged to contact me anytime. I will email you this week if I needadditional information, but due to the volume of information available I donot anticipate that will be necessary.
On behalf of UK, thanks again for raising the issue for consideration. Ilookforward to meeting you and Tom Troland in person sometime.
Have a productive and safe week traveling!
Patty
Patty BenderAssistant Vice President for Equal OpportunityUniversity of Kentucky(859) 257-8927(859) 323-3739 - [email protected]
-----Original Message-----From: [email protected] [mailto:[email protected]]sent: Monday, November 05, 2007 5:08 AMTo: Bender, PattySubject: observatory director
Patty:
I wanted to tell you that I am working out of the country this week, so ifyouwant to talk again soon I can be reached by email. As you work to sort
6
Case: 5:09-cv-00244-KSF-REW Doc #: 23-1 Filed: 09/28/10 Page: 4 of 10 - Page ID#: 483
throughthis issue I also wanted to emphasize that Tom Troland, who was a party toallof the search committee's deliberations, seems to have a very even-handedviewof thematter. I trust Tom's judgement as well as his interpretation of thediscussionsthat led up to the committee's final recommendation. Perhaps unlike someothers,Tom seems not .to be 'spinning' the story as he relates the committee'swork.
best,Mike KovashPhysics
Subject:RE: observatory directorFrom:"Bender, Patty" <[email protected]>Date:Mon, 19 Nov 2007 11:46:33 -0500
To:"Michael A. Kovash" <[email protected]>, Tom Troland <[email protected]>
Mike,
I apologize for not answering your question in my first email. You assumed correctly ... Idid review the case and your statements (as well as those of Tom Troland, Mike Cavagnero,Steve Hoch, and many emailstoandfromthesearchcommittee).Idid discuss my reviewwith the legal office and they are aware of your concerns and the factors considered bythe Dean. There were multiple concerns and multiple factors considered before the offerwas made.
Finally, I did make a recommendation but it was not on which candidate to choose for thisposition. I am not qualified to make that decision. My two semesters of college physicswere too little and too many years ago! My recommendation was to delay the offer until theconcerns were reviewed, make sure the Dean and Chair understood the real concerns of thefaculty and any liability connected with those concerns, and to ensure that everyoneinvolved in the final decision understood their responsibility to make a hiring decisionbased on multiple non-discriminatory factors, i.e. skills, references, job fit, economics,etc.
Would it make it easier for me to review had his beliefs not been discussed? Sure, but Dr.Gaskell linked his beliefs with his science, not the search committee. I am reassured thatthere are other non-discriminatory factors that made this decision not as labored as itoriginally looked on paper. Based on these factors, I am content his civil liberties havenot been abridged by those making the hiring decision.
I hope this answers your question more completely, even though I realize it is still notthe answer you wanted. I am happy to discuss this further in person if you prefer asopposed to email. I will defer--.-tD---.ei tber YOllr eha i 17 or th@D@anifyou¥lantmorede:t-a-±icdclcfsr----on the personal factors on any of the candidates used to make the final decision.
Thanks, Patty
7
Case: 5:09-cv-00244-KSF-REW Doc #: 23-1 Filed: 09/28/10 Page: 5 of 10 - Page ID#: 484
Patty BenderAssistant Vice President for Equal OpportunityUniversity of Kentucky(859) 257-8927(859) 323-3739 - [email protected]
-----Original Message-----From: Michael A. Kovash [mailto:[email protected]: Thursday, November IS, 2007 9:08 AMTo: Bender, Patty; Michael A. Kovash; Tom TrolandSubject: Re: observatory director
Patty,
I may have been confusing about the reason I brought this matter to yourattention in the first place. I am, in fact, quite familiar with TimKnauer, and one summerhe worked with me on a project in Japan. I like him personally and verymuch want tosee his succeed in life. On the contrary, my personal knowledge ofMartin Gaskillamounts only to the 30 minutes we talked during his interview trip. Andwhileit is blatantly obvious to me that Martin's professional credentials farsurpassTim's, even that wasn't my primary concern. In fact, my "favoredcandidate" (touse your term) is the civil liberty of each candidate. I believe thatthe primary reasonthat Martin wasn't chosen for the job is his deeply-felt stance on humanevolution -- amatter which is strictly personal, irrelevant to this particular hiringprocess, andinextricably entwined with Dr. Gaskill's civil rights and personal freedoms.I also believe that the University Administration has engaged in acampaign of spin control so as to prevent him from becoming the observatorydirector. Although I wasn'tpersonally on the selection committee, I have talked to its chair atlength, and tothe chair of our department. These discussions form the basis for myopinions.I am convinced that the matter of Martin's personal feelings aboutevolution,once exposed in the review process, have become the invisible elephantin every subsequent discussion and have in fact guided this injustice.
Based upon your earlier email, I thought that your office would reviewthis case,possibly seek legal advice, and then make a recommendation. However, it nowdoesn't appear to have happened that way, and we don't have the benefitof athird-party review. So I really have only one remaining question: Is ityour opinionthat Martin Gaskill's civil liberties have not been abridged by theUniversity?
Sincerely,Mike Kovash
Bender, Patty wrote:
> > Mike,> >> >> >
8
Case: 5:09-cv-00244-KSF-REW Doc #: 23-1 Filed: 09/28/10 Page: 6 of 10 - Page ID#: 485
> > Sorry for the delay, I have been running and did not want to give you a partial oruninformed response. I talked to the Dean again about this position. The final decisionwas his and you are correct, he did make an offer to Mr. Knauer. All the reasons that wereconsidered I cannot describe for you. You may want to discuss those with either the Deanor your Chair. I believe Steve and Mike were in agreement, however I will not presume tospeak for them.> >> >> >> > The University is always appreciative when someone expresses concern about ourprocesses and gives us an opportunity to have conversations about how we need to do thingsat UK. My involvement was to relay your concerns and investigate the details in an effortto ensure that the University does not make a hiring decision based on factors which arediscriminatory. However, a legitimate non-discriminatory decision may be made on manyfactors above and beyond the apparent weight of someone's application.> >> >> >> > Even to my non-physics eye it appears that your favored candidate had more educationand experience and clearly that was taken in to consideration. However, other factors mayalso be weighed and may in fact be deciding factors in any hiring decision over and abovethe strength of the application. References, job fit, economic considerations, scholarshipand other non-discriminatory factors may individually or all be considered as part of thehiring process. I had an opportunity to have this discussion with Mike and Steve before Ireviewed the file and after with Steve.> >> >> >> > Ultimately, it was the Dean's decision and he is confident that it was made takinginto consideration many factors. I am satisfied he made an informed decision and we hadall the appropriate conversations. The concerns you and Torn Troland relayed to me wereexpressed.> >> >> >> > I am happy to talk to you about this anytime. Hiring decisions are always hard andmade even more contentious than normal when people know and like one or more of theapplicants. I can only assure you that the Dean was the final decision-maker on thisposition and multiple factors were taken in consideration.> >> >> >> > Please be informed that retaliation against anyone making or participating in theinvestigation of a complaint is prohibited. Any such behavior 9hould be reportedimmediately to me.> >> >> >> > I hope I have the opportunity to meet you and Torn Troland in person sometime and lookforward to seeing the new observatory!> >> >> >> > Thank you!> >> > Patty> >> >> >> >> >> > Patty Bender> >> > Assistant Vice President for Equal Opportunity> >> > (859) 237-8927> >
9
Case: 5:09-cv-00244-KSF-REW Doc #: 23-1 Filed: 09/28/10 Page: 7 of 10 - Page ID#: 486
> > (859) 323-3739 Fax> >> > [email protected]<mailto:[email protected]>> >> >> >> >> >> >> >> >> >> >> >> >> >> > From: [email protected] [[email protected]]> > Sent: Wednesday, November 07, 2007 10:41 AM> > To: Bender, Patty> > Subject: RE: observatory director> >> > Patty,> >> > Based upon your email from Monday in which you said that "There has been no> > decision yet" on the observatory director search, I was surprised to learn a> > few minutes ago that an offer was made on Monday to Tim Knauer. Is this true,> > and if so, was it made upon the recommendation of your office? (I'm just trying> > to reconcile these apparently conflicting statements.)> >> > best,> > Mike Kovash> >> >> >> > Quoting "Bender, Patty" <[email protected]>:> >> >>» » Mike:» »» » I appreciate your initial call and this follow-up email. I have talked to» » your colleague Tom Troland and have reviewed a number of emails on the» » subject. To date I have also talked to your Chair and Dean. UK's legal office» » was consulted.» »» » As I know you appreciate there are many opinions on this issue. While there» » is always a fair amount of spin on and emotion in any issue, especially» » hiring issues, I am trying to assemble the valid arguments/opinions all» » around as well. We too try to take a fairly scientific or fact-based approach» » to our recommendations.» »» » There has been no decision yet but I will contact you again and/or you are» » encouraged to contact me anytime. I will email you this week if I need» » additional information, but due to the volume of information available I do» » not anticipate that will be necessary.» »» » On behalf of UK, thanks again for raising the issue for consideration. I look» » forward to meeting you and Tom Troland in person sometime.» »» » Have a productive and safe week traveling!» »» » Patty» »» »» »» » Patty Bender» » Assistant Vice President for Equal Opportunity
10
Case: 5:09-cv-00244-KSF-REW Doc #: 23-1 Filed: 09/28/10 Page: 8 of 10 - Page ID#: 487
» » University of Kentucky» » (859) 257-8927» » (859) 323-3739 - Fax» » [email protected]» »» » -----Original Message-----» » From: [email protected] [mailto:[email protected]]» » Sent: Monday, November OS, 2007 5:08 AM» » To: Bender, Patty» » Subject: observatory director» »» » Patty:» »» » I wanted to tell you that I am working out of the country this week, so if» » you» » want to talk again soon I can be reached by email. As you work to sort» » through» » this issue I also wanted to emphasize that Tom Troland, who was a party to» » all» » of the search committee's deliberations, seems to have a very even-handed» » view» » of the» » matter. I trust Tom's judgement as well as his interpretation of the» » discussions» » that led up to the committee's final recommendation. Perhaps unlike some» » others,» » Tom seems not to be 'spinning' the story as he relates the committee's work.» »» » best,» » Mike Kovash» » Physics» »» »» »» »» »»
Subject:RE: observatory directorFrom:"Thomas H. Troland" <[email protected]>Date:Mon, 19 Nov 2007 18:38:53 -0500
To:"Bender, Patty" <[email protected]>, "Michael A. Kovash"<[email protected]>
Patty,
Thank you for the two messages regarding your review of the observatorydirector's hiring process. I recognize that the decision on thisposition has been made. And it is just as well that this decision wasjudged defensible from a legal perspective.
From a moral perspective, however, I find the decision indefensible. Iwas part of the entire process that led to this decision. I know what
11
Case: 5:09-cv-00244-KSF-REW Doc #: 23-1 Filed: 09/28/10 Page: 9 of 10 - Page ID#: 488
observatory committee members said in meetings and privately, not justtheir e-mail comments. I know that the university (not your office!)chose an applicant with almost no relevant experience over one withimmense experience in virtually every aspect of the observatorydirector's duties. And I know that this choice was made (to asignificant extent) on grounds that have nothing to do with the job asadvertised nor with the job as envisioned by our department. Inparticular, the job has nothing to do with biology. Applicant Gaskellhas no science to offer in biology since he is not trained nor does hepublish in this field. All he has in biology are personal opinions,much as I have personal opinions about global warming even though I haveno scientific expertise in that field.
In short, applicant Gaskell was judged on his personal beliefs, beliefsunrelated to the job he applied for. This choice was unconscionable,and it brings shame upon all who were part of it, including me. I dorealize, however, that you were not part of this decision.
Sadly, my belief in the integrity of the University of Kentucky and inits commitment to fairness and diversity has suffered greatly as aresult of these events. I never thought I would have this experienceafter 26 years of employment here.
Sincerely,
Tom Troland
12
Case: 5:09-cv-00244-KSF-REW Doc #: 23-1 Filed: 09/28/10 Page: 10 of 10 - Page ID#: 489