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UNITED STATES DISTRICT COURTEASTERN DISTRICT OF KENTUCKY
LEXINGTON DIVISIONCIVIL ACTION NO. 5:09-CV-00244-KSF
______________________________________________________
DEPOSITION OF MICHAEL CAVAGNERO, Ph.D.
______________________________________________________
C. MARTIN GASKELL PLAINTIFF
v.
UNIVERSITY OF KENTUCKY DEFENDANT______________________________________________________
The deposition of MICHAEL CAVAGNERO, 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 Wednesday, March 31, 2010, beginning at the
hour of 9:33 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
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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
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ACTION COURT REPORTERS 3
INDEX
DEPONENT: MICHAEL CAVAGNERO, Ph.D. PAGE
EXAMINATION BY:Mr. Manion .................................. 6Ms. Kriz .................................... 216Mr. Manion .................................. 220
REPORTER'S CERTIFICATE ........................... 221
EXHIBITS
NO. DESCRIPTION IDENTIFIED
1 Application of C. Martin Gaskell 272 8/20/07 e-mail to Dr. Gaskell from 28
Dr. Cavagnero3 C. Martin Gaskell's Curriculum Vitae 314 Martin Gaskell Observatory, Teaching, and 59
Outreach Experience5 8/21/07 e-mail to Dr. Cavagnero from 60
Dr. Gaskell6 5/25/06 letter to Dr. Gaskell from 60
Roger Kirby of University of Nebraska7 8/20/07 e-mail to committee from 64
Dr. Cavagnero8 9/5/07 e-mail to Dr. Cavagnero from 72
Dr. Troland9 Observatory Director Applicants 74
10 9/20/07 e-mail to Dr. Troland from 83Dr. Cavagnero
11 9/18/07 e-mail to Dr. Ferland from 88Dr. Troland
12 09/19/07 e-mail to Dr. Troland from 92Dr. Cavagnero
13 9/21/07 e-mail to Dr. Troland from 100Sally Shafer
14 9/21/07 e-mail to Dr. Troland and 105Dr. Cavagnero from Sally Shafer
(Above-referenced exhibits are in a separate binder fromthe transcript.)
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ACTION COURT REPORTERS 4
EXHIBITS(Cont'd)
NO. DESCRIPTION IDENTIFIED
14 Martin Gaskell's Homepage 10515 Martin Gaskell recent preprints 10516 Martin Gaskell Professor Profiles 10517 Martin Gaskell Personal Homepage 10518 Modern Astronomy, The Bible, and Creation 10519 9/21/07 e-mail to Sally Shafer from 105
Dr. Cavagnero20 9/24/07 e-mail to the observatory 109
Committee from Dr. Troland21 10/1/07 e-mail to Dean Hoch and Provost 111
Subbaswamy from Dr. Cavagnero22 10/3/07 e-mail to the search committee 127
From Dr. Cavagnero23 10/3/07 e-mail to the search committee 140
From Dr. Ferland24 10/3/07 e-mail to search committee from 141
Dr. Cavagnero25 10/3/07 e-mail to Dr. Cavagnero from 142
Nancy Levenson26 10/4/07 e-mail to Sally Shafer and 148
Dr. Troland from Dr. Cavagnero27 10/4/07 e-mail to Dr. Osborn from 150
Dr. Cavagnero28 10/5/07 e-mail to Dr. Cavagnero and 157
Dr. Troland from Sally Shafer29 10/11/07 e-mail to the committee from 161
Dr. Cavagnero30 10/15/07 e-mail to the committee from 167
Dr. Cavagnero31 10-15-07 e-mail to Dr. Osborn from 170
Sally Shafer32 10/16/07 e-mail to the committee from 171
Dr. Troland33 10/17/07 e-mail to Dr. Osborn and 172
Dr. Krupa from Dr. Cavagnero34 10/17/07 e-mail to Dr. Krupa from 173
Dr. Cavagnero35 10/17/07 e-mail to the committee from 176
Dr. Cavagnero36 10/18/07 e-mail to Dr. Ferland from 182
Dr. Troland
(Above-referenced exhibits are in a separate binder fromthe transcript.)
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ACTION COURT REPORTERS 5
EXHIBITS(Cont'd)
NO. DESCRIPTION IDENTIFIED
37 10/19/07 e-mail to Dr. Osborn from 183Dr. Krupa
38 10/19/07 e-mail to Dr. Troland from 184To Dr. Cavagnero
39 10/19/07 e-mail to Dr. Ferland from 193Sally Shafer
40 10/21/07 e-mail to Dr. Troland from 198Dr. Cavagnero
41 10/23/07 e-mail to the committee from 201Dr. Troland
42 10/26/07 e-mail to Dr. Cavagnero from 203Dr. Krupa
43 11/02/07 e-mail to the committee from 205Dr. Cavagnero
(Above-referenced exhibits are in a separate binder fromthe transcript.)
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ACTION COURT REPORTERS 6
MICHAEL CAVAGNERO, Ph.D.
having been first duly placed under oath, was examined
and testified as follows:
EXAMINATION
BY MR. MANION:
Q. For the record, you are who?
A. Michael Cavagnero.
Q. All right. I happen to know,
Dr. Cavagnero, that you have been at a deposition
before.
A. Yes, I have.
Q. In fact, by my count, I think seven. This
might be the eighth that I know of that you will have
been present for; is that correct?
A. That's correct.
Q. All right. I'm going to dispense with
most of the preliminaries. If you need a break, let us
know. Tell the truth.
MS. KRIZ: Don't shake your head.
Q. Don't shake your head. If you have any
questions about the questions, let me know.
A. I understand.
Q. Is that fair?
A. Yes.
Q. Okay. What's your current professional
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ACTION COURT REPORTERS 7
title and occupation?
A. I'm a professor of physics at the
University of Kentucky, and I'm also the chair of the
Department of Physics and Astronomy.
Q. How long have you been at the University
of Kentucky?
A. Since 1990.
Q. And what titles have you held during the
time you've been there?
A. I was assistant professor when I arrived
in 1990, and then at some point, probably around 1996, I
was promoted to associate professor with tenure, and
then I think it was around year 2000 or so that I was
promoted to full professor.
Q. Okay. When did you become the chair of
the department?
A. I became the chair July 1st of 19 -- I'm
sorry, July 1st of 2005. And I served as chair until
June 30th of 2009, and then I took a break for six
months on a leave of absence, and then I'm chair again
now. I've been chair again since January 1st of this
year.
Q. How do you become a chair in the
department?
A. The dean appoints a departmental committee
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ACTION COURT REPORTERS 8
to search for the next chair. And the committee, that's
the faculty, to see who would be good for the job, and
then they get a list of who would be good for the job
and they sit down with those people to see who is stupid
enough to take the job, and they make a recommendation
to the dean, and then the dean tries to twist your arm
and persuade you to accept the chairmanship. And that's
the way it works.
Q. What are the duties of the chair as
opposed to just a regular professor?
A. There's a long list of them. The first
job of a chair is to supervise the staff. We have a
large staff, we have 16 staff members in our department,
and so the first job of a chair is to supervise and
evaluate staff members within the department.
And in addition to that, the chair has
responsibilities for the academic program, although we
divvy those responsibilities up. We have a director of
undergraduate studies, a director of graduate studies.
The chair sort of supervises their activities. The
chair makes committee assignments. We have a large
number of committees, so we assign committees each year
and work with the committee chairs to make sure that the
agendas are being pressed forward.
And, oh, the chair is responsible for
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ACTION COURT REPORTERS 9
building the schedules for all the classes, although we
have staff members that do most of that work, and
overlooking the budget of the department. We get a
couple of different sources of funds, and overseeing
those funds is the chair's responsibility. And it seems
like any time anything breaks the chair is the person
people go to to try to fix it so -- I think that's the
general responsibilities.
Q. Do you get paid any extra to be chair?
A. You do. You get, I think, a 10 percent
salary supplement, plus you get paid one month over the
summer, because we work on nine months' salary, so we
get paid one month over the summer because there are
responsibilities over the summer having to do with
summer school classes.
Q. As the chair, do you meet on any kind of a
regular basis with the dean of the College of Arts and
Sciences?
A. Yes. There is a council of chairs that
meets -- well, with the previous dean it met monthly.
Q. That would be Dean Hoch?
A. Dean Hoch. And it met every month for a
couple of hours on a Thursday morning, and that was to
discuss general college policies and things of that
nature and -- but that was with all the chairs of all
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ACTION COURT REPORTERS 10
the 16 departments in the College of Arts and Sciences.
In addition to that, there's no formal regular meetings
with the dean, although once a year he visits the
department and talks to all the faculty in the
department.
Q. When was Dean Hoch made dean? When did he
become dean?
A. I don't remember the year. He was dean, I
think, for six years, and he left the year before last,
so that's roughly the time frame, but I don't remember
exactly.
Q. In preparation for today's deposition did
you review any documents?
A. Well, when I sat in on the previous
depositions related to the case, I saw lots of
documents. Other than that, I think I spent -- two
weeks ago when I was supposed to give my deposition, I
spent about a half an hour trying to remember the
sequence of events by looking through e-mails, but that
was all.
Q. Tell me about what efforts you've made to
collect documents for this case. We've heard,
unfortunately, or fortunately we've talked on and off
the record during various depositions about collecting
documents in this case, but for purposes of your
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ACTION COURT REPORTERS 11
deposition we sort of have to start from scratch. What
efforts have you made since you first became aware of a
possible case involving Martin Gaskell to collect
documents and provide them to legal counsel either
within or outside counsel for the university?
A. It was actually prior to the legal case
because there was a complaint filed with the Equal
Opportunity Office -- or I forget what the name of the
office is at the university -- about the hiring process,
and when that first surfaced Dean Hoch called me in to
his office along with Patty Bender from that office, and
he asked me at that time to forward to Patty Bender all
of the e-mails that I had that were at all relevant and
any other documents that I had that were relevant to the
case, and I did that. So I sent all that stuff to Patty
Bender, and it was my impression that all of that
information was provided to university counsel.
Q. And when you say --
A. So I did a search on my directory for
anything related to observatory, observatory manager,
observatory director, Martin Gaskell, and I took all
those e-mails and I forwarded them to Patty Bender.
Q. That was my next question. How did you
determine what was relevant?
A. That's what I did. I used those kinds of
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ACTION COURT REPORTERS 12
search terms. And then the only other thing is that
they did come to my -- the university lawyers did send
somebody to my office to make a copy of my computer
drives at one point.
Q. And when was that?
A. That was after the legal proceedings had
begun, but I don't remember exactly when that was.
Q. Since that time or either of those times
have you made any additional searches for documents
related to this case?
A. Yes. There was something that came up in
one of the depositions that there was an e-mail from
myself to Dean Hoch and Provost Subbaswamy that
apparently had gone missing somehow, and I knew that
counsel for the university was looking for it, and so I
tried to save her the trouble and I went and found it
myself and I sent it to her.
Q. Was that the October 1st e-mail from --
we'll look at it -- we'll look at it as we go through.
A. I don't remember the date, but I think you
know which e-mail it was.
Q. Right. We'll go through it at some point
today.
Other than the e-mails that we've seen
either from you to other people or from other people to
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ACTION COURT REPORTERS 13
you or e-mails that you were just copied on concerning
the hiring process for observatory director, did you
prepare any writings of whatever form, e-mail or
otherwise, which you intended to be a summary of events
concerning the hiring process for observatory director
or the Martin Gaskell situation in particular?
A. A few weeks ago when I was getting
prepared for my deposition, I told you I spent about a
half-hour. I think I started a little file on my
computer trying to note the dates that various events
happened, and I got about three-minutes in to that
exercise and I gave up and I just started reading
through the e-mails. But other than that, I don't
recall ever making any notes.
MR. MANION: Off the record.
(Off the record.)
MR. MANION: Back on the record.
Q. As you know, this case arises out of the
hiring process for the position of observatory director.
Is that the official title of the job you were looking
to fill back in '07?
A. Observatory director, that's correct.
Q. Prior to 2007, was there an observatory at
U.K. for student use?
A. About 50 years ago there were two
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ACTION COURT REPORTERS 14
different observatories on U.K.'s campus in early 1900's
and both of them were demolished to make rooms for other
things at various points. So we had not had an
observatory for roughly five decades, four or five
decades, I don't remember.
Q. So this hiring process for observatory
director, this would have been -- correct me if I'm
wrong -- the first director of the new observatory?
A. That's right. In fact, in the
advertisement I think we called it the founding
director --
Q. Founding director.
A. -- founding director of the observatory,
yes.
Q. Why is the observatory named the MacAdam
Student Observatory?
A. I recommended that name, and my reasons
were primarily that he had -- that Professor Keith
MacAdam from our department, who is now a retired
professor, had spent an awful lot of time first
convincing the administration that there was a need for
such a facility. Then after Dean Hoch became convinced
of the need, I sat down with some university architects
and engineers and tried to design an observatory, not
very well, because it's outside my area of expertise,
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ACTION COURT REPORTERS 15
and Professor MacAdam came in and basically rewrote the
whole thing and redesigned it much better. And then he
also put in some seed money initially to help -- a small
amount of money, I think, just to help get the wheels
rolling and let the upper levels of the administration
know that people were serious about doing this, and then
eventually he gave a very substantial -- two very
substantial donations to the facility to -- as an
endowment to fund the positions of the three graduate
assistants who do most of the work at the facility. So
for all those reasons, I think, we decided to name it
after him.
Q. There's a reference in one of the e-mails
to a donor, who I think in the reference said he was
particularly interested in K through 12 outreach. Do
you recall that reference?
A. That is not -- I vaguely recall the
reference, but I'm guessing that it's not referring to
Dr. MacAdam. There was another -- there is another
donor to our department who lives out in Colorado, he
donates substantial sums to our department and he --
Q. Who is that?
A. His name is Milton Huffaker.
Q. Huffaker?
A. Huffaker, I think you say it. Huffaker,
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ACTION COURT REPORTERS 16
H-u-f-f-a-k-e-r. He was a former -- he's an alumni of
U.K., and he has donated to many different projects in
our department. He gave us a $100,000 donation which
was used to pay the salary, the initial start-up salary
of the observatory director. After that money was gone,
then the salary went on to the college and the college
started paying the salary. So that was just another
thing to get the ball rolling and to encourage the
construction of the facility.
He is originally from Wayne County,
Kentucky, and he has strong interests in the physics
department doing outreach to high school students around
the state, who he thinks need probably more
enrichment-type activities with U.K. faculty and
science. So that was his motivation, I think.
Q. Is he a physicist or astronomer?
A. He is a businessman who was a physicist,
and he was a versus successful businessman, founded a
company, a fairly famous company, Coherent Technologies.
MR. MANION: Off the record.
(Off-the-record comments.)
MR. MANION: Back on the record.
Q. So the reference in that e-mail that I
talked about to a donor who was interested in outreach
is probably this Mr. Huffaker?
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ACTION COURT REPORTERS 17
A. That's my guess, but I can't swear to it
without seeing the e-mail itself.
Q. All right. When the decision was made to
hire an observatory director, who came up with the job
description? I'm assuming there was an actual written
job description that was put on -- was it the American
Astronomical Society website?
A. Yes.
Q. Who wrote the job description?
A. I should explain the background. We had a
committee called the observatory committee. It was not
the search committee or the advisory, whatever you want
to call it. It was just the observatory committee, and
it was overseeing the construction and everything else
associated with that process, and I believe that the way
we came up with the job description was we sat down at a
committee meeting and we just compiled a list of what
everybody around the table seemed to think should be
elements of the job description. And so I believe that
that job description was compiled initially from a rough
list. And then somebody took it and polished it, and I
don't remember if that was Gary Ferland or Tom Troland,
but it was probably one of those two people who actually
polished it into a formal list, and then we probably
sent that to the committee for general comments and then
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ACTION COURT REPORTERS 18
posted the advertisement.
Q. And the members of the observatory
committee, were they were all members of the department,
physics and astronomy department?
A. The membership changed I think slightly
over time, but basically yes. They were either faculty
in the department or staff members in the department.
And I don't believe there was anybody on it who was not
within the department, if I remember correctly.
Q. At some point an actual advertisement or
job posting was put on a website --
A. Yes.
Q. -- that's used by people in the field to
look for jobs. Correct?
A. That's correct, yes.
Q. And that would have been the website of
the American Astronomical Society, AAS?
A. I believe that's correct, yes. Gary
Ferland posted that, but I believe that's correct, yes.
Q. And I guess we're talking now about the
summer of 2007 you started receiving applications for
the job?
A. That's correct.
Q. Prior to receiving Martin Gaskell's
application, you had met him. Right?
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ACTION COURT REPORTERS 19
A. That's correct, yes.
Q. You had gone out to University of
Nebraska, I think the summer before in -- that would
have been 2006?
A. I believe it was 2005, but I may be wrong.
There was a physics conference, an annual meeting of the
Division of Atomic, Molecular and Optical Physics of the
American Physical Society, and I go --
Q. DAMOP?
A. DAMOP, we call it DAMOP. And I go to that
every year. Very good.
Q. I've been spending lot of time on the
Internet these days.
A. I go to that every year and that year it
happened to be in Lincoln, Nebraska. Keith MacAdam also
goes to that conference annually, and so the two of us
took that opportunity. I think we had talked to a
colleague in Nebraska, probably Tony Starace, who is my
former boss, I used to work there, and he suggested that
we get together with Martin Gaskell and see their
facilities since we were interested in doing a similar
thing here at the University of Kentucky.
Q. When were you at Nebraska?
A. I was in Nebraska as a postdoctoral fellow
from -- let me get it right -- 1986 to 1989.
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ACTION COURT REPORTERS 20
Q. That was before Gaskell got there. Right?
A. As far as I know, because I have no
recollection of him, yes.
Q. And your immediate boss was Tony Starace?
A. That's correct, yeah.
Q. Or Starace, which is really a good name
for a physicist or astronomer. I kind of think he might
have made that up but...
A. No. Starachi I think is --
Q. Okay. Starachi. Looks like Starace.
How about Roger Kirby? Was he there when
you were there?
A. Roger Kirby was there, and I knew Tony
Starace very well. I knew Roger Kirby a little bit. He
was not in my field, but he was a faculty member there
when I was there.
Q. When you say not in your field, what do
you mean?
A. He's a condensed matter physicist. I'm a
spectroscopist. So we walk in different circles.
Q. Was he the chair of the department when
you were there?
A. Tony Starace was the chair when I was
there. Yes. And I believe Tony Starace was the chair
during the construction of the observatory, which was
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ACTION COURT REPORTERS 21
one of the reasons I knew that they had an observatory
on that campus.
Q. So in 2005, as you recall it, you went out
there, and you and Keith MacAdam went and looked at the
observatory at UNL, University of Nebraska at Lincoln.
A. That's correct, yes. And Martin Gaskell
showed us the observatory.
Q. At that point was the idea of building a
similar observatory already on the drawing board at
Kentucky, or was it just something Keith MacAdam was
interested in and --
A. No. It was certainly on the drawing
board. There were a lot of uncertainties about where we
could put it and what kind of an observatory it would
be. I should say that the observatory at UNL is
actually on a parking structure, and at that time I'm
not sure that we had actually contemplated putting it on
a parking structure, but maybe that's where the seed for
the idea came because it was hard to find a footprint on
U.K.'s campus for building such a structure.
Q. But, I mean, wasn't that one of the
reasons for looking at that one in particular, that they
had found a way to put an observatory on campus without
having to cover some ground that wasn't already covered
by buildings?
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ACTION COURT REPORTERS 22
A. I believe that that's true, yes. I
believe it's true.
Q. When you were out there at that point, how
long did you spend in the presence of Martin Gaskell?
A. I think we probably spent an hour and a
half or maybe two hours, I don't recall, something like
that.
Q. And when you left there did you have a --
did you have an impression that putting that type of an
observatory in Kentucky was something feasible?
A. Yes.
Q. Based on what you saw there or what you
heard from Professor Gaskell?
A. Yes. For one thing, he told us how much
it cost, and that made it much more achievable. It was
a fairly inexpensive facility to build, and so that, I
think, helped raise our enthusiasm for the project.
Q. What kind of telescope did they have
there?
A. I can't recall the details of that. I'm
sure that it was -- no, well, I shouldn't say because I
really don't recall what kind of telescope. I'm not an
astronomer. I'm not an expert on these things.
Q. What kind of telescope do they have here
now at the MacAdam Observatory?
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ACTION COURT REPORTERS 23
A. We have I think it's a 20-inch reflecting
telescope, so it's governed by a nice big spherical
mirror.
Q. I assume there are other smaller
telescopes associated with the observatory, perhaps?
A. There are several portable telescopes
associated with the observatory as well, that's correct,
yes.
Q. But that's the main feature of the
observatory?
A. That's correct. And that was the main
purpose of the observatory was to buy a nice -- a good
quality large telescope that people can look through,
that's correct.
Q. All right. The summer of 2007
applications start coming in for the observatory
director position. I assume that -- well, I shouldn't
assume. What was the procedure that you as department
chair intended to follow in reviewing applications and
making a decision about who to hire for the position?
Very general question right now.
A. The procedure is one that was used in
several faculty searches. I think I've hired something
like ten or 11 staff members since I've been a chair,
and so it was a common procedure. And since we already
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ACTION COURT REPORTERS 24
had an observatory committee, I didn't want to make
another committee for the search process, so instead I
just charged the existing observatory committee with the
additional responsibility of performing the search and
advising the chair on candidates for the search. So
most of the heavy lifting of those searches are supposed
to be done by the committee members. The chair tries to
facilitate, and the job of the committee members is to
process all that information, debate the pros and cons,
and also to advise the chair ultimately on who they
think would be the best director in this case.
Q. You say that you've been involved in maybe
ten or 11 staff hirings during the time you've been at
U.K.
A. That's correct, yes. Well, since I've
been chair, that's correct.
Q. Have they all involved a similar process
with the committee making a recommendation?
A. There are some variations, but primarily
that's the case, yes. For some of the -- for example,
for secretarial positions within the department, things
of that kind, the chair basically appoints a few staff
members to run that kind of a search. When we search
for shop personnel, I basically take the foreman of the
shop and appoint him the chair of a small committee.
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ACTION COURT REPORTERS 25
The chair is, in principal, an ex-officio member of all
committees in the department, and in many of those
searches my role is marginal. I would just receive the
recommendations of the committee.
In the case of the observatory, it was a
little different because I had already invested a lot of
my own time, and I was actually, even though I was
ex-officio, I was a fairly active member of the
observatory committee before the search process, and so
I had, I felt, a vested interest in it so I took part in
a lot of the committee meetings. I was there, even if I
didn't vote I was still part of the committee and I was
actively engaged in it, yes.
Q. And in the ten or 11 hirings at whatever
level that you've described, the range, I think, have
you ever vetoed the recommendation of the committee?
A. No. No. That's the simple answer.
Although committees frequently look to the chair for --
Q. Guidance?
A. For guidance. But in principle it's
supposed to be a -- you know, the chair receives advice
from the committee, and the chair gives advice to the
dean, and the dean actually is the person who has the
hiring authority. That's the way it's supposed to work.
But frequently committee members will look to the chair
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ACTION COURT REPORTERS 26
for the chair's advice as well. So I'm sure I advised
on various occasions, and whether that had an impact on
any of those decisions, I can't really say so...
Q. You've referenced the dean. Is the dean
always the person who puts the final stamp of approval
on a hiring in your experience?
A. The chair has no authority to hire anyone
as far as I understand, from my understanding of the
regulations of the university. All hiring takes place
at the level of the college.
Q. Which means the dean?
A. The dean.
Q. In the ten or 11 hiring processes you've
been involved in as chair has the dean ever rejected --
A. No.
Q. -- the choice of the committee?
A. No.
Q. How about the provost? Does the provost
get involved in this process in your experience?
A. I know that HR, human resources, gets
involved in the process at the level where it goes up to
the dean. I don't myself understand whether the dean
needs to seek approval. I can't imagine that the dean
needs to seek approval from central administration or
from the provost's office for ordinary hires within his
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ACTION COURT REPORTERS 27
own college.
Q. All right. Let me show you a document.
(Exhibit No. 1 marked.)
Q. I'm showing you what we marked as
Exhibit 1 for today's deposition. Is this the
application that Martin Gaskell submitted for the
position of observatory director?
A. I believe so, yes.
Q. And this form that we're looking at, was
this an online form that applicants were expected to
fill out?
A. That's correct.
Q. And there's some reference in some of the
e-mails from -- I think from Professor Gaskell and
Ms. Shafer that the -- then, of course, I'm
paraphrasing -- doesn't tell you a whole lot other than
name, rank and serial number and where they went to
school and where they worked. Right?
A. It's an awful form. And to some extent
that turned out to be my fault. I was a naive new
chairman. I did not know at that time that I was
entitled to restructure this form. So this was the same
form we had used habitually in all of our staff member
searches in the department, and we didn't change it at
all, but the amount of information that's really
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ACTION COURT REPORTERS 28
pertinent to this particular job on this information is
next to zero, that's correct.
Q. Somebody applying for a secretary's job
fills out the same form as somebody applying for
observatory director?
A. Yes. And I probably should have changed
the form, and the committee let me know that at some
point during the proceedings.
Q. All right. Let's go through some
documents.
(Exhibit No. 2 marked.)
Q. Showing you what we've marked Exhibit 2,
which appears to be an e-mail from yourself to Martin
Gaskell dated August 20, 2007 at 7:14 p.m. In this
e-mail you indicate to Gaskell, do you not, that he is
on a short list of about seven candidates? The first
sentence you tell him that. Correct?
A. That's correct.
Q. In the second line of this e-mail you say:
I noticed that you asked us not to contact Kirby.
That would be Roger Kirby at Nebraska.
Correct?
A. That's correct.
Q. And you say I'll respect that.
In fact, you did speak to Roger Kirby at
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ACTION COURT REPORTERS 29
some point, didn't you?
A. That's correct.
Q. Why?
A. Okay. There's a checked box on the form
somewhere, I believe, that asks whether or not we should
contact your current employer or supervisor or something
of that nature, I don't remember, and that's done out of
deference to people who want to look for jobs without
having their current employer know that they're looking
for jobs, and he had checked that box. But then at some
point, and I don't remember exactly the timing, but at
some point it became clear to me that he was no longer
working at the University of Nebraska Lincoln, that he
had moved on to an institution in Texas. And so -- and
if I remember correctly -- I don't remember whether this
e-mail took place after he had already moved to Texas or
not. I can't -- his transition from Nebraska to Texas
took place in this same time frame so I'm not sure
whether he had already moved on to Texas or not, and I'm
not sure whether I knew he had moved on to Texas or not
at the time I wrote the e-mail.
Q. You say in the second paragraph:
Ultimately this will be a committee decision. I'm no
dictator.
You're telling Gaskell there, are you not,
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ACTION COURT REPORTERS 30
that the committee's decision will be the decision, or
what?
A. I said that, I think, to all candidates at
various times, and my purpose in doing so was that from
my experience in previous searches, I wanted to make
sure that the candidates paid particular attention to
all of the individual members of the committee, that
they really addressed all the concerns of all the
members of the committee, and that they just didn't
focus all their efforts on me as the department chair
so -- but the structure of it is that the committee
makes a recommendation to the chair, that's in the
bylaws of the department, and that the chair makes a
recommendation to the dean. So I'm not sure why I felt
the need to share that with him on that particular
occasion.
Q. This same e-mail, or this same document,
rather, it appears that the top part of this document is
your reply to an e-mail from Gaskell in which Gaskell is
attaching his CV --
A. That's correct.
Q. -- and something that he calls his
experience. There's a document here that I'll show you
that's titled Observatory Teaching and Outreach
Experience, and we'll go through that in a little bit.
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ACTION COURT REPORTERS 31
Let's take a look at the CV.
(Exhibit No. 3 marked.)
Q. I'm showing you what we've marked
Exhibit 3 for today's deposition, and this appears to
be, does it not, the CV that Martin Gaskell submitted?
A. I believe that's correct, yes.
Q. I want to spend some time with the CV so
let's take a look at this thing. Were you familiar at
all with Gaskell's academic background before you saw
his CV?
A. Well, I had visited him in Nebraska, as I
mentioned earlier, and during that visit he showed us
some of the research that he had been doing with
students on the UNL campus with his facilities, so I was
aware that he was a research astronomer. And also he
had a reputation within the department of being a
quality research astronomer. We have five astronomers
on our faculty, and they knew him, or several of them
knew him and knew him fairly well in terms of his
published works, yes.
Q. This CV shows that he got his bachelor's
in astrophysics from Edinburgh University, master's in
astrophysics at University of California at Santa Cruz,
Ph.D. in astronomy and astrophysics at the same
institution, and then there's an indication of his
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ACTION COURT REPORTERS 32
thesis advisor. What's the significance of that on a CV
for a scientist or a professor? I mean why would
somebody put that on their CV?
A. I don't know that I ever thought about
that question before, although I'm sure I put it on my
CV too.
Q. I assume you guys all do that, but I'm
just asking why.
A. I think it's just that even if your name
is known among -- widespread among the community, giving
some reference in terms of who educated you or who
helped educate you just puts your experience in a
broader perspective for people who are looking at your
CV. I assume that's the reason.
Q. So if you can put on there Albert
Einstein, thesis advisor, that might gets somebody's
attention?
A. Yeah, it might. I would think so.
Q. Do you know who E.J. Wampler is?
A. No. I'm not an astronomer, so I don't
know.
Q. I assume that's somebody in the astronomy
field?
A. I assume so.
Q. Then he lists his employment history, and
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ACTION COURT REPORTERS 33
there's a variety of institutions that he has worked at.
He testified about some or most of these, I suppose, in
his deposition, and I think they're all listed in his
online application he presented.
And we go down to Professional
Organizations. He starts with a Fellow of the Royal
Astronomical Society. Do you know how one becomes a
member of the Royal Astronomical Society?
A. No, I don't. If it's like the American
Physical Society, which I am a member, a fellow, there's
a difference between member and fellow. So I would be
careful about that distinction. Anybody can be a
member, you just sign up and pay the dues, at least in
the American Physical Society. A fellow, you have to be
voted in to membership.
Q. By...?
A. By your peers. So I assume it's something
of that kind, but I don't know that society very well.
Q. You'll have to bear with me because being
an outsider to the world of academic science or science
in general, I'm probably not atuned to the distinction
that you guys clearly make between physicists and
astronomers. To me, I thought you were all the same
thing. And I think you've actually explained to me in a
previous deposition that astronomers are all physicists
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ACTION COURT REPORTERS 34
but not all physicists are astronomers; is that fair?
A. That's correct. To have an advanced
degree in astronomy, Ph.D. degree in astronomy, and even
a master's degree in astronomy, you really have to go
through all those same physics courses, all the same
physics-type education, and so most -- most institutions
around the country at least, the departments are joined,
physics and astronomy, and students will get a degree in
physics, an advanced degree in physics. So astronomy is
a specialization, just like condensed matter physics is
a specialization, or atomic physics is a specialization,
or nuclear physics is a specialization.
Q. At the University of Kentucky, for
instance, in the physics and astronomy department as
presently constituted, how many of the -- how many
members of the department are astronomers as opposed to
physicists?
A. There's 29 faculty members in the
department and 5, I believe, are -- well, one is on
leave of absence, so 5 are astronomers out of those 29.
Q. Going down, continuing with the CV, are
you familiar at all with the Space and High Energy
Astrophysics Commission of the International
Astronomical Union?
A. No, I'm not.
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Q. How about the American Astronomical
Society?
A. Only in the sense that some of my faculty
members in my department are members of that
organization.
Q. And same question with regard to High
Energy Astrophysics Division, or HEAD.
A. I'm not familiar with that organization.
Q. On the second page of the CV, Gaskell
lists teaching -- it has a section called Teaching
Experience, and he lists Courses Taught. By the way,
your copy probably has underlinings and things in it,
which I apologize for.
A. That's fine.
Q. We only have 73 copies of this, and I
couldn't find one that didn't have writing on it so I
apologize for that.
He lists here, he breaks it down to
courses for nonscientists, physics, courses for
astrophysics majors and graduate courses. Do you see
that?
A. Yes, I do.
Q. And the courses for nonscientists go from
general introductory astronomy, topics in astronomy,
extragalactic astronomy, solar system astronomy, honors
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ACTION COURT REPORTERS 36
seminar in astronomy. There's references in some of the
documents we've seen in the case to courses in Kentucky
called AST 190 or something like that?
A. Our two introductory level astronomy
courses are 191 and 192 -- AST 191 and AST 192.
Q. Who are those intended for?
A. Those are intended for nonscientists.
They fulfill the university studies program requirements
for -- distribution requirement for having some science
experience, if you're a nonscience student at the
university.
Q. And so it looked like Gaskell had taught
these either at Nebraska or at some of the other
institutions. Correct?
A. The course is very similar to the ones we
teach, I'm sure, yes.
Q. And likewise, he's also taught
introductory physics, apparently, according to his CV.
Right?
A. That's correct, yes.
Q. And there's a section called Courses for
Astrophysics Majors, and he lists four different courses
there. You see that?
A. Yes.
Q. As well as graduate courses underneath
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ACTION COURT REPORTERS 37
that, he lists two different titles of courses.
Correct?
A. Yes.
Q. Then he goes on to Other Teaching-Related
Activities, and he lists a number of items there at the
bottom of page 2 and the top of page 3. "Started
introduction of CCDs and computers into undergraduate
lab." Do you know what CCDs are?
A. Yes, I do.
Q. What are they?
A. They're imaging -- well, I don't know how
to explain it. They're devices that --
Q. Make it simple.
A. They're devices that are used to make high
resolution images.
Q. They're cameras of some kind?
A. One can think of them as similar to a
camera. They can be the detectors, if you like.
Q. It indicates that Gaskell was the founder
and project director for the construction of
undergraduate research observatory at the University of
Nebraska. Is that the observatory that you visited?
A. If I remember correctly, there were at
least two observatories at the University of Nebraska
Lincoln; one of them was on the parking structure across
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ACTION COURT REPORTERS 38
the street from the physics building, and the other one
was outside of the city somewhere. I'm not sure which
of those two he's referring to, but I'm willing to
assume it's that one.
Q. Okay. Well, right underneath it he says
coordinator of University of Nebraska Lincoln Student
Observatory. Is it possible --
A. Maybe that's the distinction. That would
be the second one is the one that's on the parking
structure. But I'm not sure.
Q. So it looks like Gaskell was the founder
and project director of at least one and maybe two
observatories at the University of Nebraska.
A. I agree.
Q. Then he talks about developing a lab
course for beginning astrophysics majors. Then on the
next page at the top of the page he says he's given over
150 planetarium shows at University of Nebraska's
Mueller Planetarium. Would that fall under what we've
heard referred to as outreach in this case?
A. I wasn't aware that they had a planetarium
on that campus. Planetarium shows, I'm familiar with
planetarium shows, for example, at University of
Louisville, and those shows are sometimes for the
general public, and if they're for the general public
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ACTION COURT REPORTERS 39
then certainly that would be outreach. But also it
could be that they're shows for students at the
university as well, and I don't know that.
Q. The next section in the CV is Recognition
of Teaching Activities, and he indicates that he was a
five-time finalist -- always a bridesmaid apparently --
but one of five finalists out of approximately 1,700
faculty for the top student-awarded teaching award at
the University of Nebraska five years in a row. He was
a nine-time recipient of a "Certificate of Recognition
for Contributions to Students" from the Parents
Association of Teaching Council at University of
Nebraska, a number of other recognitions of his teaching
activities.
And then the next section he talks about
here is Undergraduate Research, and he indicates
approximately 40 undergraduates have been involved in
research projects with me.
And continuing on, the bottom of this
page, Undergraduate Honors Theses Supervised, Master's
Students Supervised on the next page, Doctoral Students
Supervised. Why is that significant on a professor's
CV? I've seen it on -- I've looked at a number of CVs
in the course of this case, actually, and I notice that
they often list their supervision of other people's
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ACTION COURT REPORTERS 40
studies. Why is that something that you see on
professors' CV? What does that tell somebody?
A. Well, a large part of the purpose of these
institutions is to educate students, that's our job
and -- at all levels, and so interacting with students,
educating them and actually bringing them to the level
of an advanced degree is an accomplishment for the
supervisor as well as for the student, I would think.
Q. So it's an accomplishment of a professor?
A. Yes, I would say it's an accomplishment,
that's correct, yeah.
Q. And so Gaskell indicates under
Undergraduate Research a number of -- 40 undergraduates
have been involved in research projects with him,
describes their publications.
A. Uh-huh.
Q. And then he talks about Undergraduate
Honors Theses Supervised, Master's Students Supervised
and Doctoral Students Supervised, and lists the
projects, I suppose, and publications that came out of
those projects, and obviously I'm just summarizing
things here. And you've indicated that those would be
considered accomplishments by a professor?
A. Yes.
Q. And that's why they're listed on his CV --
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ACTION COURT REPORTERS 41
A. Yes.
Q. -- and presumably something similar would
be listed on other people's CVs.
MS. KRIZ: Just for the record, I
don't know that Dr. Cavagnero can testify as to
whether -- why these things were mentioned on Gaskell's
CV. I think only Dr. Gaskell can testify to that. I
think Dr. Cavagnero can testify whether these issues
were significant to him.
MR. MANION: Well, he can testify
however he wants to testify.
THE WITNESS: What I thought I was
saying was that generically faculty members do put these
things on their CV. That's all I can say.
MR. MANION: And that's really what
I'm asking.
Q. All right. At the bottom of page 4 he
starts a section called Outreach and Public Education.
You see that?
A. Yes.
Q. And that continues on to page 5. As I
understand it, outreach was considered an important part
of the job for which he was applying at the University
of Kentucky, was it not?
A. That's correct.
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ACTION COURT REPORTERS 42
Q. And Gaskell lists one, two, three, four,
five, six, seven, eight separate items of outreach and
public education that he performed in the course of his
career, including co-producing a planetarium show about
quasars and supermassive black holes. It says the show
has been released in 100 planetaria with audiences of
over 2 million.
He organized monthly public star viewings
at the University of Nebraska in Lincoln between 1998
and 2006, attended by around a thousand people per year.
He was a co-organizer of semi-annual public nights at a
different observatory affiliated with the University of
Nebraska. Says that he's a member of the board of the
Hyde Memorial Observatory in Lincoln; does several radio
and TV appearance per year on average, local, national
and international; planetarium shows for school
children; talks to public and to amateur astronomers,
several per year; telescope-making lectures and
demonstrations at least one per year.
Do you have any reason to think that any
of that is not true?
A. No.
Q. And then under Miscellaneous, I think he's
going back to something he's already listed; indicates
he was the project director for the University Nebraska
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ACTION COURT REPORTERS 43
Lincoln Observatory and observatory coordinator at
University Nebraska Lincoln Observatory.
Then has a section on Service, where he
indicates, among other things, that he's been a member
of various NASA review panels, member of different
committees with different professional astronomical
groups, it appears.
And then he lists a number of -- under a
section he calls Local, which I guess is under Local
Service, talks about different committees that he's been
on, the various places he's worked.
I'm wondering if you know or have any idea
what he means by things like Time Allocation Panel.
Under National/International Service it says
Deputy-Chair, Hubble Space Telescope Time Allocation
Panel, AGN physics. Do you know what that means?
A. I think I know what it means.
Q. What do you think it means?
A. If a research astronomer has an idea of
something that they would like to observe with one of
the large national or international telescopes that are
open for general use, they apply for time at the
facility. So if somebody wants to use the Hubble for
doing something, or another telescope for doing
something, they have to apply to a committee for a
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ACTION COURT REPORTERS 44
certain amount of time allocation on that facility, and
the committees competitively judge those different
applications and award time to individual investigators.
So he apparently served on that panel.
Q. All right. On page 6 he has a section
called Invited Talks. And generically I assume that
people in your field, people in the department that
you're the chair of, are invited to give talks at
various professional societies and meetings?
A. Yes, as well as other institutions, that's
correct.
Q. And that's considered something worthy of
putting on a CV because it shows that you're recognized
by your peers as somebody worth coming to listen to.
Right?
A. That is correct, yes.
Q. And Gaskell lists a number of these on
page 6, going on to page 7, starting with the Sierra
Astrophysics Conference, going through meetings in
Italy, England, Germany, various -- Crimea, whatever
that is, and other places around the world.
And then there's a section on page 7
called Seminars and Colloquia, and he indicates, does he
not, that he has given or participated in a number of
seminars and colloquia at U.S. universities, and
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ACTION COURT REPORTERS 45
there's, I don't know, maybe 30 listed there, and many
United States -- many of the states of the United States
and institutions within those states. Correct?
A. That's correct.
Q. Including Kentucky. One of them in the
Seminars and Colloquia is in Kentucky. Right?
A. Yes.
Q. Do you remember when that was? Or has it
been more than once?
A. I'm aware from a number of different
places that he had visited University of Kentucky in the
late '90s, in 1997 I believe, and I assume that he gave
a seminar as well as a public talk when he visited on
that occasion. I was away.
MR. MANION: Off the record.
(Off-the-record comments.)
MR. MANION: Back on the record.
Q. We've heard in the course of various
depositions that Gaskell had been to Kentucky and had
given a public talk in 1997 at the University of
Kentucky, and I think there's an indication that that
was in conjunction with a colloquium. Right?
A. I don't know that, but it's not unusual
for us to ask colloquium speakers to give a public talk
as well as their professional colloquium when they come
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ACTION COURT REPORTERS 46
to visit, so that might have been done on that occasion,
I don't know.
Q. What is a professional colloquium?
A. Well, we have two different types of talks
within the department. We have seminars, which are
usually aimed at one particular research cluster or
research group on a topic, and then we have colloquia,
which are more general talks aimed at the entire faculty
and graduate student body.
Q. So would you think that with reference to
these colloquia that he lists here that this would be
something that Gaskell would have been invited to give
by that institution?
A. I would assume so.
Q. Okay. I mean, if you saw this on a
resume --
A. If it's on my resume, then I would assume
so, then I know for a fact.
Q. You have something similar on your resume?
A. I may. I haven't looked at my resume in a
long time.
Q. I probably have, but I don't remember.
And under the U.S. universities he lists
lots of foreign institutions outside the United States
where he has participated in seminars and colloquia from
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ACTION COURT REPORTERS 47
the Ukraine to Australia, China, England, Uzbekistan,
and a number of others. Correct?
A. That's correct.
Q. Then we move on to a section that he
labels Research Grants, where he has about a page and a
half worth of grants that he's received for research
over the course of his career. Do you see that?
A. Yes.
Q. Is that again something that people in the
science field, particularly physics and astronomy,
consider it to be an accomplishment and that's why they
put it on their CVs?
A. Frequently, yes.
Q. Is that something the institutions, if
you're applying for a job, want to know about?
A. Search committees will frequently look at
funding.
Q. Why is that? Why is that important?
Because money makes the world go round. Right?
A. Well, it's especially -- it's considered
important in research institutions for faculty
positions, that's correct, yes.
Q. Because the more money you can bring in,
the more research you can do. Right?
A. Because it takes money to do research,
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ACTION COURT REPORTERS 48
that's correct, yes.
Q. And typically how do you -- how does a
professor go about getting a grant to do research? Have
you ever gotten a grant to do research?
A. Yes.
Q. Can you just give me the overall view of
what the process was?
A. Federal agencies will send out
announcements of grant opportunities frequently, usually
annually, depending on the federal program that you're
talking about. So they'll send out a solicitation for
proposals, and each agency is a little bit different and
has their own protocol, but generically speaking, you
simply go to their website or go to your research
administration and find a copy of the application
materials that are required, and you write an
application and draw up a budget. And then the grant is
actually an agreement between your institution and the
federal agency, so the actual application is submitted
by the Office of Research at the institution.
Q. Who gets the money? The institution?
A. What's that?
Q. Who gets the money?
A. Well, the institution is the contractee.
I think that's the correct legal way to say it, I'm not
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ACTION COURT REPORTERS 49
sure. So in principle the agreement is between the
institution and the federal agency. The PI does the
work and the PI can get some of the money in summer
salary, or he can pay people off of it, or he can buy
equipment with it. And then, of course, the university
has an overhead F & A rate, whatever they call that. So
they get a -- but they tax the grant and use some of
that to foster the research infrastructure of the
university.
Q. On page 9 of the CV, at the top of page 9
there's a large heading, Research Bibliography, and in
the paragraph under there it says there are 4,300
citations of these papers including over 1,300 citations
of first-authored papers. And then it gives a source of
that, I suppose?
A. Yeah.
Q. What's the significance of the number of
citations in a professor's papers?
A. Some people find it to be a good measure
and some don't. Certainly having other people refer to
your published work when they publish their own papers
is generically considered an indication that your
research is relevant to what's going on in the field.
Q. And when he's talking about citations, who
would be citing these papers?
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ACTION COURT REPORTERS 50
A. So if another astronomer and another
institution writes a paper and cites as reference
material for that paper in their bibliography, if they
cite a paper that was published by Martin Gaskell, then
that's a citation to his work.
Q. So it would be other astronomers and
people in the field?
A. Other astronomers in the field, that's
correct.
Q. We are not going to go through each of his
publications.
A. Good.
Q. But we are going to talk about some of
them, particularly the places where they're published.
Let's look at the first one, it's No. 72, page 9, and
the abbreviation is Astrophys. J. 2007. Are you
familiar with that publication?
A. Yes, I am.
Q. What is it?
A. The Astrophysical Journal, and it's one of
the journals that I frequently see cited by the
astronomers in our department. When they publish their
own works, when our faculty, our astronomy faculty
publish their own work, they frequently publish it in
that journal.
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ACTION COURT REPORTERS 51
Q. How does one get a work published in the
Astrophysical Journal?
A. One submits a paper to the Astrophysical
Journal, probably nowadays electronically on a website,
and that paper is refereed.
Q. What does that mean? Refereed.
A. Well, that means that the paper will be --
the editors of the journal will send copies of the paper
to someone else in the field. Now, the number of
referees they choose for a given paper depends on the
journal. I don't know how many referees are used for
each paper that's submitted to the Astrophysical
Journal. Some journals send it to two people, some send
it to one, some send it to three. It depends on the
journal, and I don't know how many they used. But they
send it to a scientist in the field and have them
evaluate the credibility of the work that's being
presented.
Q. Going down this list of publications, the
next one that's different from the Astrophysical
Journal, Astron. J. I'm going to guess that that's the
Astronomical Journal?
A. I believe so.
Q. Would you expect that they have a similar
process for accepting publications?
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ACTION COURT REPORTERS 52
A. I expect so, yes.
Q. We hear the phrase peer-reviewed
publications.
A. Yes.
Q. What does that mean to you?
A. That's what I just mentioned.
Q. Okay. A process of -- we're having a nice
conservation. She's not enjoying it at all.
That's the process of having a paper
submitted to other scientists in the field and having
them review it for the credibility from a scientific
standpoint. Correct?
A. That's correct.
Q. There are a number of names of
publications -- not that many -- but there's probably a
half dozen in this list of publications. As we go down,
there's what appears to be an Astronomy and Astrophysics
if you look at No. 65. Going on to the next page,
No. 62, there's one that looks like Astronomy or
Astronomical Reports; No. 56, he had something published
in the Chinese Journal of Astronomy and Astrophysics, it
appears. Would you expect that each of these
publications were similar to the Astrophysics Journal
that we've talked about in terms of what it takes to get
something published in them?
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ACTION COURT REPORTERS 53
A. There's a wide variety in every field that
I'm not -- I'm not an expert on astronomy, and so I
don't know the pecking order of prestige of the various
journals. There are certainly some journals in which
there is no refereeing, there's no peer-review process.
There's some journals that you just post things on a
website, for example. I don't know. I think that most
of the ones that I see here I have seen before in
reference to the astronomers in my department, and I
think that the vast majority of them are peer-reviewed
journals. But I don't know the pecking order. Except
that I know the Astrophysical Journal is considered one
of the higher quality journals in astronomy.
Q. I think in the legal field we have various
law reviews, and it's probably -- if you got an article
published in the Harvard Law Review, you would put that
ahead of some other institutions. Is it something
similar like that in the --
A. There is something similar to that in my
own field.
MS. KRIZ: You may.
MR. MANION: Well, I thought me. One.
MS. KRIZ: I don't know that I would.
MR. MANION: Of course if it was the
Kentucky Law Review, we would put that first, but other
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ACTION COURT REPORTERS 54
people might put Harvard or Yale or something like that.
Q. What about -- if you go to page 13 and
after that there's references to a journal called
Nature. Are you familiar with that journal?
A. I am.
Q. What is that?
A. That is a prestigious journal that is --
that includes topics spanning all sciences.
Q. Is that also a peer-reviewed journal?
A. I believe so, yes.
Q. Let's move over to page 15. After the
list of, whatever it was, 72 or 73 publications as of
whenever this CV was prepared -- I'm assuming this is
approximately in 2007 sometime -- he lists a couple of
books that he apparently was an editor of, one of
several editors of. By the way, is that typical in
scientific, academic writing that you don't see very
many publications where there's a single author; is that
your experience?
MS. KRIZ: In terms of books or
publications in general?
Q. Anything. I mean you look at the list of
publications, very few of them -- well, I shouldn't say
that, but many of them are multiple names on the byline.
A. It's not infrequent to have multiple
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ACTION COURT REPORTERS 55
names. It's really highly field dependent, I would say.
It depends on the field. There are some fields in which
people -- some topics on which people will publish
papers individually, but it's not -- it's quite common
to have multiple authors.
Q. Okay. After the section entitled Books,
there's a section called Papers in Conference Books.
What does that title mean to you? Because I'm not sure
what that means.
A. Frequently after -- frequently at a
conference there will either be -- at most physics
conferences -- I can't talk about astronomy conferences,
but at most physics conferences there are invited talks,
but there are also things called contributed papers or
poster sessions, things of that kind, and it's typical
for the organizers of the conference to publish short
articles summarizing the output of the conference in
terms of those poster session abstracts and in terms of
abstracts of contributing papers and things of that
sort. So it's a compilation of all of the contributions
to the conference, typically speaking.
Q. Gaskell lists some 33 papers and
conference books. Then we have a section called
Miscellaneous and followed by a section called
Editorials and Minor Publications. These actually do
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ACTION COURT REPORTERS 56
seem to be ones, at least the majority of them, where
Gaskell is the only listed author. Many of them appear
to be in Nature, which you've described for the journal
Nature. He has -- it's 24 of those.
Then moving on to page 21, he has a
section called Publish Abstracts of Presentations at
Meetings.
A. I see, so I need to correct what I just
said, then, because maybe I mistook two things. What I
was referring to a minute ago is the published abstracts
of presentations at meetings, so let me go back and look
more carefully at this earlier section, Papers in
Conference Books. I can't -- I don't understand the
distinction between Papers in Conference Books and
Published Abstracts of Presentations at Meetings. I
notice, for example, on Papers in Conference Books, they
all seem to be one-page items because they have a page
number written with them, and usually what's put on that
page is just an abstract of a presentation you gave at
the conference. So perhaps the first section is on
invited talks that he gave and the second section is
just on attributed poster sessions or something, but I
don't know the distinction between those two.
Q. Okay. And when you see the word
"abstract" in a CV, what are we talking about?
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ACTION COURT REPORTERS 57
A. So when I submit a paper -- well, when I'm
attending my DAMOP meeting, my annual DAMOP meeting, I
will want to make a poster session normally giving
progress of my own research at that conference. It's a
big room with a poster, everybody hangs a poster and
people walk around and talk to you about what you did in
your research.
Q. Sound like a science fair.
A. It's a little bit like a science fair
among professional sciences, but typically in order to
post such a poster you have to submit an abstract ahead
of time to the conference and they sometimes review
those abstracts, but I would say 99 percent of the time
they give you permission to then display your work at
the conference on poster session.
MR. MANION: Off the record.
(Off-the-record comments.)
MR. MANION: Back on the record.
Q. We're talking about starting at page 21
the section called Published Abstracts of Presentations
at Meetings, and you've just explained what you think --
and again, I understand this is not your CV.
A. Yes.
Q. But I'm just asking your general knowledge
of what you think this is referring to as somebody who
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ACTION COURT REPORTERS 58
is in the scientific academic field.
And we have under Published Abstracts of
Presentations at Meetings 44 different ones given to
apparently different meetings, published in different
journals. Most of them appear to be the Bulletin of the
American Astronomical Society. I may be guessing on
exactly what that stands for, but actually probably not
because the last page on number 4 spells it out, the
Bulletin of the American Astronomical Society.
A. Uh-huh.
Q. Okay. Having taken that tour through
Martin Gaskell's CV and with an understanding of what
these things refer to, do you really think it's fair for
somebody to say that Gaskell is unworthy of a scientific
position at the University of Kentucky?
A. Wow. Let's see. How do I answer that?
Q. Just with a truthful answer.
MS. KRIZ: And are you talking about
in the field of astronomy or in general?
Q. I'm just asking do you think having gone
through this CV --
A. I think that this is the CV of an
accomplished research astronomer with a lot of teaching
experience, yes. Does that answer your question?
Q. If that's your answer, I suppose it
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answers my question.
Now let's look at another document.
(Exhibit No. 4 marked.)
Q. I believe this is referred to in the
e-mail where Gaskell sends you his CV where he talks
about his teaching -- or his experience, summary of his
experience. In any event, the document is labeled
Martin Gaskell, Observatory, Teaching, and Outreach
Experience, and in this document, which is two and a
half pages long, Gaskell goes through, not surprisingly,
his observatory, teaching and outreach experience. And
he talks about specifically what he's done with
reference to setting up and running a student
observatory, presumably submits this because that's the
job he's applying for at U.K. Does that sound
reasonable?
A. I'm trying to remember whether I read this
in the past. I don't remember. And it's a long
document to read right here. I believe that at some
point the inadequacy of the online application form
became self-evident, and I requested of each of the
people on the short list that they provide us with a CV
and/or some description of their experience, a few-page
description of their experience. It's possible that
this is what Martin Gaskell submitted at that time in
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ACTION COURT REPORTERS 60
response to that request, but I don't remember
specifically whether this was it or not.
Q. Okay. Do you remember seeing anything
similar from the other applicants? In other words, a
summary of their teaching and outreach and observatory
experience?
A. I really don't recall, although if I
requested it of one candidate, I'm sure I requested it
of all of them. So I don't recall. And I don't recall
seeing this specific document before.
Q. Okay. Let's move on to -- taking a look
at -- what exhibit was that? Two -- at Exhibit 2 where
Gaskell says, "Hi, Mike, here's a copy of my CV (see
attached pdf file) and info on some of my experience
that might be relevant for the search committee," does
that refresh your recollection about whether or not
Exhibit 4 is the info on his experience?
A. As I say, I remember asking him for such
information, and I just don't remember reading this
specific document, that's all I'm saying. It may be the
document that he submitted for that purpose.
Q. Okay. All right.
MR. MANION: Let's mark these two.
(Exhibits Nos. 5 and 6 marked.)
Q. Showing you what we've marked Exhibits 5
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and 6, Exhibit 5 appears to be an e-mail from Gaskell to
you dated August 21, 2007 at 3:45, and actually at the
bottom of this exhibit is your previous e-mail in which
you mention the reference to not contacting Roger Kirby,
and it appears that Gaskell is responding to that, does
it not?
A. That's correct, yes.
Q. And explains why he put his name down
because he was the official boss at the time he filled
in the form. He indicates, does he not, that Roger,
meaning Roger Kirby, was not supportive of astronomy,
which is the field that Gaskell is in. Right?
A. That's correct.
Q. And so he would not want him as a
reference, but he does reference that he's enclosing his
most recent -- his being Kirby's, most recent evaluation
of me, meaning Gaskell. Right?
A. Yes. I remember getting this e-mail, and
I remember looking at the evaluation, that's correct,
yes.
Q. The next exhibit that you're holding in
your hand, which is Exhibit 6, if I say the number
wrong, please correct me. I gave up trying to
coordinate my numbering with the court reporter's.
Anyway, this is the evaluation that's referred to in the
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ACTION COURT REPORTERS 62
previous e-mails.
A. That's correct.
Q. And this is from his most recent boss, I
suppose at the time he submitted his application to
Kentucky. Correct?
A. I believe so, yes.
Q. And he's rated in three different areas,
research, teaching and service, and in research he's
given a superior, teaching he's given a superior plus,
and service he's given a good plus; is that correct?
A. That's correct.
Q. Was this particular evaluation submitted
to the committee members, do you know?
A. I believe that I forwarded it. Now,
whether I forwarded it to the entire committee or
whether I forwarded it to the chair of the committee
with the understanding that he would distribute it to
the committee, I don't recall. But generically
speaking, I gathered information about the candidates in
response to committee members' requests, and I forwarded
that committee [sic] either to the chair or to the whole
committee. It was a long time ago. I don't remember.
Q. I understand. In fact, that brings to
mind the fact that there are e-mails in this stack of
documents we've received where you or other people are
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ACTION COURT REPORTERS 63
writing to the whole committee and there are some where
you are just writing to Tom Troland. Tom Troland was
the chair of the committee, the search/advisory
committee. Correct?
A. That's correct.
Q. Who made him the chair? You?
A. I did, yes.
Q. Why?
A. In the year prior to the search, the
observatory committee, which was at that time charged
with the entire observatory operation, was chaired by
Gary Ferland, but Gary Ferland had plans to go on
sabbatical in the year that the search was actually
taking place, so it was clear that we needed a new
chair, and I believe that it was Gary who recommended
Tom for the job, although he was the obvious choice.
Q. Why?
A. There are -- there were at that time five
astronomers in the department. The two who had the
greatest interest in the observatory itself were Gary
Ferland and Tom Troland. Nancy Levenson also had some
interest and experience, but she was a junior faculty
member at that time.
Q. Junior faculty?
A. Well, I think -- I believe that she was
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ACTION COURT REPORTERS 64
still either an assistant professor or an associate
professor at that time, I don't recall. But she was not
a full professor at the time. And -- yeah.
Q. What did you see as the role of the chair
of the committee?
A. Well, that's a good question.
Generically, the chairs of the committees are the ones
who organize the committee meetings, who bring the
committee together and establish the agenda for the
committee's function, but they do that in consultation
with the chair of the department, myself.
MR. MANION: All right. Let's keep
marking here.
MS. KRIZ: Can we take a five-minute
break?
MR. MANION: Yeah. Sure.
(10:53 BREAK 11:00.)
(Exhibit No. 7 marked.)
Q. Dr. Cavagnero, showing you an exhibit,
which I believe we've marked 7, which is an e-mail from
you dated August 20, 2007 at 7:07 p.m. to what appear to
me to be the members of the committee for the
observatory director position. Correct?
A. That's correct.
Q. And just so we don't have to keep
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ACTION COURT REPORTERS 65
repeating it, on most if not all of such e-mails to the
committee, Gary Ferland is included. Correct?
A. That's correct.
Q. Was he technically on the committee or
not?
A. No. But it was out of deference. He had
been chair of the committee the previous year, and he
had invested a certain amount of time, and so I included
him just so that he was aware of what was going on.
Q. Okay. And ultimately he did not cast a
vote on the committee's recommendation. Right?
A. That's correct.
Q. And neither did Professor Levenson; is
that right?
A. No, that's not correct. She sent a proxy
vote in favor of Dr. Gaskell, and I don't remember if
she sent it to me or if she sent it to Dr. Troland or if
she sent it to the entire committee, but I do remember
she voted in favor of Dr. Gaskell.
Q. Was that by an e-mail?
A. I don't recall, but I believe it was by
e-mail. I just -- I have no recollection.
Q. I've not seen that. I've not seen such an
e-mail, although I've seen reference to the fact that
she voted for Gaskell.
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ACTION COURT REPORTERS 66
A. It may have been by word of mouth. I
don't remember.
Q. But as far as you know, you've produced
every e-mail that could reasonably be related to this
search process?
A. I sent them all very early on before the
lawsuit to Patty Bender, and she indicated to me that
she had all my e-mails so that's all I know.
Q. And would you assume that if there was an
e-mail from Nancy Levenson about observatory director
position, that would have shown up in your search?
A. I would think so.
Q. I mean, what did you search -- how did you
do the search again? I hate to go over this again.
A. I have an inbox and several -- and a large
number of directories, and I went to each of the ones
that were remotely relevant and searched under Gaskell
and I believe under observatory, and I don't remember
what other key words I used at the time, but I searched
generically, and I put them all into a single directory
and I tried to ship that entire directory to Ms. Bender.
Q. So she would have had to been extremely
cryptic and not mention Gaskell and observatory in order
for it not to turn up, which may be difficult if she
was --
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ACTION COURT REPORTERS 67
A. I don't know what else to say.
Q. Okay.
A. I don't know what else to say.
Q. There is an e-mail from Nancy Levenson in
this stack which I think -- in some stack, I think it's
in this stack, it's not one where she says I am hereby
voting for Gaskell, but we'll get to that, and I'll ask
you about that.
Anyway, looking at this one, which is
No. 7, you are writing to the committee, and you begin
by saying, "Martin Gaskell is clearly the most
experienced." Correct?
A. Correct.
Q. And you apparently are sending to the
committee Gaskell's CV and what you refer to as the
experience files. Correct?
A. That's correct. So this is where I
apparently did pass that information to the entire
committee.
Q. And then you mention the fact that Keith
MacAdam and you had visited him last year, as you put
it, to learn how to build an observatory on a parking
structure. Correct? That's what you say here.
A. I'm reading down here.
Q. I'm still up in the first paragraph.
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ACTION COURT REPORTERS 68
A. Oh, yeah. Of course. Yeah. That's
correct.
Q. In the next paragraph you make a reference
to Tim Knauer, and you say, "We received a letter of
recommendation recently, which Tom can share with the
committee."
Do you remember who that was from, the
letter of recommendation?
A. Yes, I do because it's a person I knew.
His name is -- and I don't know that I can spell it,
Zelijko Ivezic. I believe it's Z-e-l-k-o --
Q. Remember, you're under oath.
A. I said I believe. I-v-e-z-i-c, or
something of that kind. He was a -- he had been a
graduate student in our department who received his
Ph.D., I believe, with Professor Elitzur and then went
to a variety of academic -- or to a couple of different
academic appointments, and he was -- I don't remember
what institution he was at at the time he sent me the
letter of recommendation.
Q. Do you remember anything about that letter
of recommendation? Well, let me ask you this. Do you
remember whether it talked about anybody other than Tim
Knauer?
A. No, I don't. I would be surprised if it
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ACTION COURT REPORTERS 69
did. I think it was a message about Tim Knauer, whom he
had known when he was at -- who the writer of the letter
had known when he was at University of Kentucky, he
interacted with Tim. And I believe that they had done
some scientific work together on a project, but that's
the limit of my memory of that.
Q. I guess what I'm asking is, he didn't say
Tim Knauer is great, Martin Gaskell is not, or Quinn
Sykes or any of the other candidates?
A. I can't recall any reference to anyone
other than Tim Knauer. And I would have found it
strange, so I believe I would remember because there's
no way he should know who had applied for the positions.
MS. KRIZ: And we have clarified that
it is K-nauer.
THE WITNESS: It is K-nauer actually,
yes.
MR. MANION: Make sure you get that.
Q. All right. On the second page of this
exhibit -- oh, I'm sorry, at the bottom of the first
page of this exhibit, it looks like we have another
e-mail from you to the committee dated -- and this one
is dated August 20th at 10:24 a.m., so this would have
been sent earlier in the day, earlier than the one we
were just talking about. Right? If you go on to the
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ACTION COURT REPORTERS 70
next page.
A. That's correct, yes.
Q. And looking at the next page, it generally
is discussing procedure about how to conduct the search
process here, and you can give the committee some things
to consider, and there's a line that reads: This
position is being paid for, at least for the first
couple of years, by a donor who is encouraging us to
spend some time on K-12 outreach.
Is that the Mr. Huffaker that you referred
to earlier?
A. That's correct.
Q. All right. And then in the next paragraph
you give the committee a number of separate items that
you say the committee needs to consider, and I'm not
going to read them all, but at the next paragraph you
say Items (f) and (g) would probably require a Ph.D., at
least if we expect the director to be a PI. Then you
say how to weight all of these items is a committee
decision. What's a PI?
A. Principal investigator on a grant from a
federal agency.
Q. So above that you've listed one, two,
three, four, five, six, seven things for the committee
to consider, and two of the seven would require a Ph.D.
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ACTION COURT REPORTERS 71
Correct?
A. Would probably require a Ph.D., not
necessarily, yes.
Q. And Martin Gaskell, of course, had a Ph.D.
at the time. Correct?
A. That's correct.
Q. And Tim Knauer -- make sure you say it
right -- did not. Correct?
A. That's correct.
Q. Item d) of your list: Develop a program
of regional outreach in K-12.
Is it fair to say based on what you've
learned throughout all this process that Tim Knauer had
never done that. Correct? I mean, I'm not sure Martin
Gaskell had either, but I'm asking do you know whether
Tim Knauer had?
A. He had not developed a program of regional
outreach, but he had conducted some outreach activities
when he was in our previous employment.
Q. Like what? Can you tell me about his
outreach?
A. He would host evening -- I don't know what
you want to call them, evening observing events with
portable telescopes on our campus.
Q. And that was when he was on the staff of
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ACTION COURT REPORTERS 72
the physics and astronomy department in the '90s?
A. That's correct.
Q. How long was he -- did he work for U.K.
before he got the position as observatory director?
A. I don't remember the number of years. I
know -- I remember he started as a graduate student in
our department, and then when there was an opening for a
staff position in the lecture demo area, he applied for
it and received the job. And it was a few years or
maybe several years, I don't remember how many years it
was, that he worked in that position before moving on.
Q. And then he left U.K. and was in a couple
of jobs in private industry; is that fair?
A. He's an engineer by training, and so I
believe he had positions using his engineering
background, that's correct.
Q. He's not an astronomer?
A. He's not a professional astronomer. He's
an amateur astronomer, that's correct.
Q. Let's move on to -- call it Exhibit 8, I
think.
(Exhibit No. 8 marked.)
Q. Exhibit 8 should be an e-mail from Thomas
Troland to Mike Cavagnero, copied to what looks like the
committee, dated September 5, 2007 at 6:27 p.m. See
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ACTION COURT REPORTERS 73
this?
A. Yes.
Q. All right. There's a name on there that I
don't remember seeing before, Yates, Diane L. Who is
that?
A. Oh, she's my staff assistant.
Q. Okay. So this is Troland reporting to the
committee or writing to the committee, and he talks
about somebody named Nelson. Do you know who he's
referring to there?
A. There was another applicant for the job, I
believe his name was Brant Nelson.
Q. And then a little bit further down in the
e-mail Troland says on paper, "At least Gaskell is the
strongest, I believe. He has already done everything we
could possibly want the observatory director to do."
Did you agree with that statement when you
read it at the time?
A. It's a long time ago. Let me think about
that.
(Deponent reviews document.)
A. I don't recall how I took that statement
at the time. I had a very favorable impression of
Dr. Gaskell myself at that time, and if you had asked me
that question at that time, I probably would have agreed
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ACTION COURT REPORTERS 74
with it, but I don't remember thinking about it,
actually.
Q. And then the last sentence in that
paragraph that we were just looking at from Troland
says, "But phone interviews and calling of references
may well bring out a number of interesting points." Do
you see that sentence?
A. Yes.
Q. Was it the plan at this point in the
process to do phone interviews of those who had applied
and were on the short list?
A. That's correct.
Q. And were you involved in some or all of
the phone interviews?
A. Some.
Q. Okay.
A. Possibly all, but I don't remember.
Q. All right.
Let's look at what we'll call Exhibit 9.
(Exhibit No. 9 marked.)
Q. Exhibit 9 is an exhibit that I have not
seen until yesterday or the day before. I believe it
was supplied at the end of last week by mail. Looking
at this, can you tell us what it is?
(Deponent reviews document.)
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ACTION COURT REPORTERS 75
MS. KRIZ: I believe I provided that
last week with a cover letter explaining that those were
documents that were submitted to me from Sally Shafer,
if that helps you.
A. I don't ever recall seeing this document
before.
Q. Okay. There's handwritten words at the
top of the document that I think say "Summary, Phone
Interviews," and it's dated September 5, 2007. The
e-mail that we just read, which says -- which I believe
indicates that the phone interviews had not even taken
place, is also dated September 5, 2007. Does that
refresh your recollection at all about what this is?
A. No. As I say, I don't think I've ever
seen it before.
Q. Okay.
A. I certainly don't remember it.
Q. Did you participate in the phone interview
of Dr. Gaskell?
A. Yes, I did.
Q. Was Tim Knauer interviewed by phone? I
mean, I know he was local.
A. I believe -- no, he was not local at the
time of the interview, so I believe he did have a phone
interview, yes.
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ACTION COURT REPORTERS 76
Q. So I take it, then, you don't know where
the information on this document or who compiled the
information?
A. I don't know even know who compiled the
document. I don't recall. It certainly was not me. I
would remember it, I think.
MR. MANION: Off the record.
(Off-the-record discussion.)
MR. MANION: Let's go back on the
record.
Q. Professor Cavagnero, we're not -- well,
you're not sure where this comes from, we know that, and
you've indicated that you don't recall ever seeing this
before. There's some indication by your counsel that
this was provided by Sally Shafer, who was a member of
the committee. Assuming -- wherever it comes from, it
appears to be a summary of information regarding the
observatory director applicants, and the handwritten
statement at the top of the first page would appear to
me, at least, indicate that this was following a phone
interview; is that fair? Everything I just said?
A. Well, I recognize the names of the people
who applied. I think that that is our working list of
applicants for the positions. It looks to be a
compilation of comments from those people. Whether they
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ACTION COURT REPORTERS 77
were comments that were obtained as a result of phone
interviews or whether they were comments that were based
on their application materials, I have no way of knowing
that. I don't believe that there was any -- I don't
believe that there was any single member of the
committee who attended all the phone interviews except
perhaps me, and so I don't know who could compile
something about all the different applicants, and that's
why I'm confused about who even prepared this document.
Q. I don't know the answer to that. Well,
let's go through this document a little bit. The
first -- on the first page -- well, let me ask you this.
Have you ever seen a document like this in connection
with any other search process for hiring in the
department that you're the chair of?
A. I think if I --
Q. Let me withdraw that question and just --
A. I don't know the answer to that.
Q. Okay. I notice at the top right-hand
column it says TT Comments. Would that likely be Tom
Troland?
A. I would assume so, yes.
MS. KRIZ: I'm going to instruct you
not to speculate on this. Ms. Shafer is scheduled for a
deposition next Friday and you can ask her all you want
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ACTION COURT REPORTERS 78
about this document.
A. I'm reading this document for the first
time. I have no knowledge what it means.
MR. MANION: Well, you know, we keep
getting documents, like, dribbling out here. And, for
instance, we wouldn't have had the document, October 1st
e-mail, which as far as I'm concerned is an important
e-mail, at his deposition if we had actually taken him
when we were scheduled to. So I think I'm entitled to
ask him about the document. If he doesn't know anything
about it, those can be his answers.
Q. Looking at the second page of this
document, there are a number of columns which purport to
appear to summarize information about the various
candidates. Correct? I mean that's what it appears to
be?
A. That's what it appears to be, yes.
Q. And in the middle of the page we see
Martin Gaskell, do we not?
A. Yes.
Q. And under him we see Charles Ketterman and
under him we see Tim Knauer. Correct?
A. Correct.
Q. And Tim Knauer is the individual who
eventually got the job that Gaskell and the others were
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ACTION COURT REPORTERS 79
applying for. Right?
A. That's correct.
Q. The chart that we're looking at has five
items. If you go back to page 1, they're listed. Item
1 is small telescopes; Item 2 is labs; Item 3 is
outreach; Item 4 is teaching; and Item 5 is supervising.
You see those things?
A. Yes.
Q. And what I want to ask you is regardless
of whether you know where this comes from -- but I
believe you indicated that you participated in the phone
interviews of everybody. Let's just go through and see
if there's anything that you would disagree with.
Under Item 1, Small Telescopes, the
compiler of this document indicates that Gaskell has
extensive experience. He developed and directed the
University of Nebraska Student Observatory. Does that
sound correct to you?
A. Yes.
Q. And for Knauer on the same category it
says: He has long-standing interest in small telescopes
and the engineering background to deal with technical
issues. Does that sound correct?
A. Yes.
Q. The second column is tiled Labs. Now, for
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ACTION COURT REPORTERS 80
a nonscience person like myself a lab is a biology lab.
What's an astronomy lab?
A. There are a variety of activities that one
can do with data compiled from telescope observations,
and such activities at the student level might be
referred to as labs, generally speaking.
Q. So on this chart it indicates under Labs
for Gaskell: Has taught introductory astronomy with lab
component. Has also developed lab course for beginning
astrophysics students at University of Nebraska.
Does that seem correct to you?
A. Yes, I believe that's correct.
Q. And for Tim Knauer it says: None?
A. That's what it says.
Q. Have any reason to disagree with that?
A. I believe that Tim Knauer had some
experience teaching our astronomy courses in the 1990s,
and he also had experience doing activities with
students at small telescopes in the 1990s. Whether any
of those could be thought of as lab activities, I don't
know. I don't remember.
Q. The Item 3 on this chart is titled
Outreach, and for Gaskell it says: Has had extensive
experience in outreach activities including co-producing
a planetarium show, organizing monthly public star
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ACTION COURT REPORTERS 81
viewing sessions at Nebraska. Is that what it says?
A. That's what it says, yes.
Q. And for Knauer it says: Little, if any.
Obviously that's what it says.
A. That's what it says.
Q. Is that correct?
A. Again, I had mentioned earlier that he had
in his previous employment done observing activities
with members of the general public using small
telescopes on our campus. So I would say it's not
exactly correct. It has a kind of -- well, it's -- I
would say it's not precise, that's what I would say.
Q. The next item in the chart is called Item
4, Teaching, and for Martin Gaskell it says: Very
extensive experience teaching at all university levels
from freshman to graduate students. Correct?
A. That's correct.
Q. And for Tim Knauer it says taught
Astronomy 100 level courses at U.K. Correct?
A. That's correct.
Q. And that was the limit at the time, at
least, of Knauer's teaching experience at the university
level?
A. I believe that's correct.
Q. The next item in the chart is called
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ACTION COURT REPORTERS 82
Supervising, Item 5, and for Gaskell it says:
Supervised the founding of the University of Nebraska
Student Observatory. Correct?
A. That's correct.
Q. And for Knauer it says: Evidently has had
much experience supervising in industry. Right?
A. That's what it says, yes.
Q. Any reason to disagree with either of
those?
A. No.
Q. And finally under the column that reads TT
Comments, which we're not sure what that means, but for
Martin Gaskell it says: He has very significant
experience in all areas relevant to our position. And
then it says: Quite senior. Is that what it says?
A. That's what it says, yes.
Q. And then for Knauer it says: Reasonable
candidate, probably not among the best? That's what it
says?
A. That's what it says.
Q. And again, I know that this is the first
time you're looking at this, you did not compile this
information, but we're not sure who did.
A. That's correct.
THE WITNESS: Can I take a bathroom
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ACTION COURT REPORTERS 83
break?
MR. MANION: Absolutely.
(11:25 BREAK 11:28.)
Q. Let's look at another e-mail.
(Exhibit No. 10 marked.)
Q. Exhibit 10 is an e-mail from Mike
Cavagnero to Tom Troland dated September 20, 2007 at
4:47 p.m. The first sentence or clause reads, "Martin
Gaskell's phone interview was quite unlike the others,"
does it not?
A. Yes.
Q. And so this would indicate that this
e-mail was sent after your phone interview with Martin
Gaskell?
A. That's correct.
Q. You say he clearly is the most
accomplished and experience of the lot, at least in my
mind. Right?
A. Correct.
Q. That's what you said after the phone
interview.
And then you go on to say, "He could have
talked expansively for an hour or more about each of the
questions posted in the interview." Correct?
A. Correct.
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ACTION COURT REPORTERS 84
Q. Which probably explains why his deposition
went so long.
Were you the only person interviewing him
on the phone?
A. No.
Q. Who else was there, or who else was
involved?
A. I'm not certain. I vaguely recall that it
was scheduled at a time that was difficult for several
of the committee members. I think we had a rule that
there should be at least two members of the committee on
each of the phone interviews, and I think I remember Tom
Troland being there, but I can't swear to it. I don't
remember.
Q. But you're pretty sure that it wasn't just
you?
A. I'm sure that it wasn't just me because we
had this rule that there had to be at least two people
on the committee there.
Q. And going to the first sentence of this --
of the third paragraph of this three paragraph e-mail,
it begins, "In short, I think he's been doing the job we
want someone to do for many years." Is that what you
said after your interview?
A. That's correct, yes.
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ACTION COURT REPORTERS 85
Q. And that's almost exactly what Troland had
said in the e-mail we looked at previously where Troland
says Gaskell is the strongest, he's already done
everything we could possibly want the observatory
director to do.
So is it fair to say as of September 20,
2007, after the phone interview with Gaskell, you and
Troland were of the same mind with regard to his
qualifications for the job?
A. I can't say about Tom Troland, but at that
time he was certainly my favorite candidate, there's no
doubt, yes.
Q. Okay. You do go on, however, in that same
e-mail, in that same last paragraph, you say, "The
questions of his suitability are of a different nature."
And you say, "The cost is likely to be high." What did
you mean by the cost? How much he would want to be
paid?
A. Before we had been granted a position by
the dean, I had had some e-mail dialogue with Martin
Gaskell asking about whether he would be interested in a
visiting position for a few years in our department
because I had met him out in Nebraska and he had
actually exchanged a few e-mails with me about
observatories generally, I don't remember the details,
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ACTION COURT REPORTERS 86
but I had asked him at some point whether if we had a
position of some, you know, visiting professor or
something whether he might be interested in that or not,
and I believe he had responded to that, and I don't
remember when it happened, but he told me the salary
conditions that he would need, and they were relatively
high. So I do remember that specific issue coming up.
Q. That would have been from 2005?
A. It might have been 2005 or 2006, I don't
recall. I don't recall.
Q. But was it after your visit to Nebraska?
A. It was after the visit to Nebraska, yes.
Q. And that's why when he applied for this
job you already had some general idea of the kind of
money he would probably be looking for?
A. Exactly.
Q. And you knew what the budget was for this
position in Kentucky?
A. Yes. The way it works at Kentucky is a
little confusing. A staff position -- staff positions
have a range associated -- a salary range associated
with them depending upon the level which is determined
by human resources, and so there's a wide range. It's
generically true that they hire people in the lower half
of the range as an initial starting condition. So I was
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ACTION COURT REPORTERS 87
aware of the general salary constraints.
Q. Okay. You also say, "He's pretty set in
his ways." At that point what was your basis for that?
Well, before you answer that, let me ask you a different
question.
A. It's an impression.
Q. Yeah. From the way I read the documents
we have, at this point, September 20th, you hadn't yet
spoken to anybody in Nebraska specifically about Gaskell
and the observatory director position. Does that sound
right?
A. It's very easy to get the timing confused
so I want to make sure.
Q. I understand.
A. This was after the phone interview, before
the on-campus interview --
Q. Right.
A. -- and I -- honestly I can't recall the
order of the sequence of events well enough to answer
that question honestly.
Q. That's fine. That's absolutely fine.
Let's go on to the next one.
MS. KRIZ: So you're withdrawing your
question about what "set in his ways" means?
MR. MANION: Yeah, I think I did that,
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ACTION COURT REPORTERS 88
didn't I?
(Exhibit No. 11 marked.)
Q. All right. This is Exhibit 11, should be
dated September 18, 2007, at 6:01 p.m. Is that what
you're looking at?
A. Yes.
Q. Okay. We'll call this 11. This is an
e-mail from Troland to Ferland. You're not copied on
this. Much of the e-mail has nothing to do with this
case. It talks about the victory of the Wildcats over
Louisville, but we won't get in to that. If you go down
to sort of the middle of this e-mail, Troland is writing
to Ferland, who's over in England as we know at this
point, and he says regarding Martin Gaskell: We
concluded our phone interviews with observatory director
applicants today. Today's interview was with Martin
Gaskell. Clearly, Gaskell is the most experienced
applicant by far. He's already done everything we would
want the director to do.
We've seen that line before from Troland.
But then he goes on to say: Even Isaac (who has been
out of town lately) has good things to say about his
research. Isaac said Gaskell gave a great talk at a
recent conference.
You see that line?
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ACTION COURT REPORTERS 89
A. Yes.
Q. Then he says: But Isaac is worried about
the creationism matter. This was September 18th. This
was after the phone interviews with Gaskell. Do you
remember speaking to -- well, let me ask this question.
Obviously in this case an issue arose regarding what is
referred to in this e-mail as the creationism matter, or
if you want to call it Gaskell's position on biological
evolution, or something else. When did that issue first
arise in this process, the hiring process?
A. From my perspective?
Q. Yes. As far as you knew.
A. The first that I recall hearing about that
issue was when Sally Shafer indicated that she had
Googled Martin Gaskell and found some websites about the
issue of evolution and creationism and religion, the
Bible, those generic websites -- those websites that he
had. That was the -- and I can't recall whether she did
that in committee discussion or in an e-mail, but I
think she was the first to raise the issue as far as my
perspective was concerned.
Q. All right. So that's the first you became
aware that this was an issue to some people involved in
the process?
A. That's what I recall, yes.
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ACTION COURT REPORTERS 90
Q. All right.
A. Of course I knew nothing about this.
Q. Right. I understand that. I understand
that, yeah.
Troland goes on to say in the e-mail,
"Mike is going to call his pals at Nebraska to get more
information." Presumably he's referring to you when he
talks about Mike. Do you know who he meant by your pals
in Nebraska?
A. I remember -- well, again, I'm trying to
put things in sequence. I don't want to talk out of
sequence. But I did have a long association with Tony
Starace at University of Nebraska, and I was familiar
also with Roger Kirby and with several other faculty
members at University of Nebraska. So I guess committee
members generally knew that I had been there in the
'80s. So...
Q. Right. At some point did you call one or
more people at Nebraska to ask them about Gaskell?
A. I did.
Q. Who did you call? Who did you speak with?
A. Well, I have a vague recollection that I
may have talked to Tony Starace about it. It seems to
me natural that I would have. He's the person that I
know best at that institution. He had been chair back
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ACTION COURT REPORTERS 91
in the '80s and I think early '90s, so I have a vague
recollection that I may have called him, but I don't
remember anything about the details of that
conversation. What I do remember is talking to Roger
Kirby, that I do remember, I did call him. And the
reason I remember is because I debated whether or not I
should before I called him.
Q. Why did you debate that?
A. Because I had told Martin Gaskell that I
would respect his wishes that I not talk to him, but
then I told that to the committee members and they
rather laughed at me and told me I was foolish for not
calling the supervisor of somebody who had applied for a
job if there wasn't any legal constraints to prevent me
from doing so. So in deference to the committee, I --
and the committee was right, and obviously if
somebody -- if you're going to vet a candidate, you need
to talk to their previous supervisors if you can do so,
and so I called him.
Q. You also knew at that point that he was no
longer at Nebraska?
A. That's correct. That was a reason I felt
at liberty to make that phone call to Roger Kirby.
Q. So as far as you can recall, at most you
spoke to two of Gaskell's former colleagues in Nebraska?
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ACTION COURT REPORTERS 92
Certainly Kirby?
A. That's correct.
Q. And Starace, but you don't remember the
details?
A. That's correct. Yes.
Q. Let's go on to the next one.
(Exhibit No. 12 marked.)
Q. Exhibit 12 is an e-mail from Mike
Cavagnero to Tom Troland dated September 19, 2007, 3:56
p.m., subject Martin Gaskell. This appears, does it
not, to be a summary of your conversation with a UNL
faculty member, who I think we now understand was Roger
Kirby. Correct?
A. I believe so, that's correct, yes.
Q. And you're telling Troland -- by the way,
is there a reason you didn't send this to the whole
committee?
A. I felt uneasy, as I said, about calling
Roger Kirby in the first place because I had told Martin
that I wouldn't. And because I felt uneasy about it, I
just didn't want it being spread all over the place that
I had called him and talked to him, so I -- I don't know
why I was self-conscious about it, I just was, I was
uncomfortable about it, so I just asked him to share the
information. Because the committee had requested that I
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ACTION COURT REPORTERS 93
call, I wanted him to share that information.
Q. Okay. So you expected that Troland would
share the information that you got from Kirby with the
rest of the committee?
A. That's correct.
Q. You even say in the second -- "as you
requested," writing to Troland. That's how you start
that.
A. Yes, that is correct.
Q. And so you had a long, frank discussion
with a UNL faculty member about Martin Gaskell.
This is a typically lawyer question that I
always hate when people ask of my clients, but I'm going
to ask you anyway. How long did that conversation last?
A. The conversation with Roger Kirby?
Q. Yeah.
A. I would guess between 15 minutes and half
an hour.
Q. Had you ever met him before?
A. Yes. I knew him when I was at Nebraska as
a postdoc.
Q. So he knew who you were?
A. He knew who I was, yes.
Q. And obviously he knew who Martin Gaskell
was?
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A. Yes.
Q. And what did you tell him was the reason
you were calling?
A. I don't recall the specific language. I
assume I told him that Martin Gaskell had applied for an
observatory position in our department, and I was
calling him as a reference.
Q. According to this e-mail, Kirby told
you -- and you list in numbered statements things that
he told you. The first is that Martin is a gifted
researcher who does his research on student facilities
largely with undergraduate students, and was very
successful at receiving research funding for those
endeavors. Right?
A. Yes.
Q. Second, he said that Martin was competent
and capable but not especially gifted in
instrumentation. Right?
A. Correct.
Q. He then said that Gaskell was an excellent
and engaging teacher in introductory courses. Right?
A. Correct.
Q. And then number four, he said that Martin
Gaskell was a very good public spokesperson for their
observatory facility. Correct?
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ACTION COURT REPORTERS 95
A. Correct.
Q. Then he goes on to say -- or you go on to
say that Kirby told you that Gaskell's principal
argument with UNL faculty and administrators had to do
with his desire to decrease his teaching load, which was
large, to support his successful research efforts by
buying out of instruction. This did not make his dean
or chair happy since he was hired on a three-year
contract to teach five courses per year and finding
replacement instructors was a big pain in the neck.
That's what Kirby told you. Right?
A. That's what I say here, and I have a vague
recollection of that conversation.
Q. That practice of buying out of
instruction, was that something you had heard of before?
A. It happens in our department from time to
time, usually a faculty member will buy out of
instruction using their grant funds. So they'll give
grant funds to the department, who will then hire a
replacement teacher.
Q. That goes to my question what does that
mean by instruction.
A. Yes.
Q. And would you be the one at Kentucky who
would have to find replacement instructors?
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ACTION COURT REPORTERS 96
A. That would be me.
Q. So were you sort of sympathetic with
Dr. Kirby?
A. Oh, I'm always very sympathetic with
department chairs.
Q. Okay. The next paragraph of this summary
of what Kirby told you was: His other -- his meaning
Gaskell -- his other disagreement with the faculty was
their plan to eliminate graduate research in astronomy
from their department, thereby eroding his base of
collaborators and colleagues.
And then he goes on -- or you go on to say
that Kirby said: He never likes this decision and
according to the fellow I spoke with, he never accepts a
decision, that he doesn't like. That's something Kirby
told you?
A. It's almost an exact quote.
Q. Did he explain how that was manifested,
how Gaskell's not accepting a decision he doesn't like
was manifested?
A. I don't recall the details about that. I
had the impression that Dr. Gaskell would simply
complain frequently to the chair about that situation.
Q. Do people in your department ever complain
to you about their assignments and the burden and their
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ACTION COURT REPORTERS 97
workload, that sort of thing?
A. Some more than others. Yes.
Q. So it's not unheard of for a faculty
member to complain to the chair that they don't like
something the chair decided or that the university
decided or something like that?
A. That's correct.
Q. And the next sentence says: So both of
these issues were unresolvable because Martin simply
refused to accept the decisions of his colleagues and
administrators and constantly found ways to bring them
up again. That's something that Roger Kirby told you?
A. Roger Kirby said something to that effect
and gave me the impression that Dr. Gaskell, at least on
these issues, Dr. Gaskell was sort of a thorn in his
side. That was the impression that I got, yes.
Q. Then the next paragraph begins, "I also
raised the questions of whether his personal religious
beliefs affected his job performance, and the answer was
largely no." Why did you raise the question of whether
Gaskell's personal religious beliefs affected his job
performance?
A. I had -- again, I'm trying to remember the
timing of things here and what I was thinking at that
time. I remember -- well, let's see. The question
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ACTION COURT REPORTERS 98
about his websites had come up, Sally Shafer raised
them. At some point I also, and I don't remember the
dates, at some point Moshe Elitzur, who was not on the
committee, also raised the same issue me. I don't
remember if that was before this date or not. There had
been --
Q. How did --
A. Sorry.
Q. How did Moshe Elitzur raise the issue with
you?
A. I forgot whether I was walking by his
office or he was walking by mine, but we had a private
conversation in one of our offices one day, and he told
me that he had heard that Martin Gaskell had applied for
the position of observatory director, and he told me
that -- I believe that he was the first one to inform me
of the public talk Dr. Gaskell had given on U.K.'s
campus ten years earlier, and I think that was the first
I had ever heard it, and he indicated that there was
some controversy over the talk and some of the members
of the biology department were unhappy with the
presentation. And so that's how we talked about it,
yes. But I don't remember if that happened before this
conversation with Roger Kirby or not. That's what I'm
trying to tell you, I don't recall dates.
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ACTION COURT REPORTERS 99
Q. I don't want to completely get away from
this.
A. I didn't really answer your question
there.
Q. Okay. Go ahead.
A. I didn't complete my answer.
Q. All right. Go ahead. Complete your
answer. I'm going to come back to this e-mail, but go
ahead and complete your answer for now.
A. At some point my concern became about
whether or not Dr. Gaskell would follow the governing
regulations of the university were we to hire him in his
job; that is to say, whether he would use his job as an
observatory director at U.K. to advance personal beliefs
or personal opinions of any kind, and so that was the
underlying concern behind this. I don't remember
exactly how I worded my question to Dr. Kirby or
whatever, but my concern was about whether or not he
would respect the governing regulations of the
university, and that was my concern.
Q. What governing regulations in particular?
A. There is a governing regulation that -- I
can't cite a chapter and verse, I think it's government
regulation No. 1 at the university, which indicates
somewhere in there -- it's a long regulation and several
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ACTION COURT REPORTERS 100
pages -- indicates somewhere in there that members of
the faculty and staff should not use their positions at
the university to advance personal beliefs or personal
agendas of any kind.
And my understanding of that is, for
example, that to advocate for a particular political --
politician and use your university affiliations in order
to forward that would be against university policy, for
example. So that's my understanding, but I'm not a
lawyer, and I'm just telling you how I understand that
regulation.
Q. Obviously before you spoke to Roger Kirby
you had some concern that you wanted him to address?
A. That's correct, yes.
Q. And you recall having a conversation with
Professor Elitzur but you're not sure when?
A. (Witness nods head.)
Q. And you also recall an e-mail from Sally
Shafer bringing up -- let's just call it this general
issue of --
A. The websites.
Q. -- the websites.
MR. MANION: Okay. Let's mark this.
(Exhibit No. 13 marked.)
Q. I'm not done with Exhibit 12, but I'm
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ACTION COURT REPORTERS 101
going to show you Exhibit 13 because I'm going to see if
it refreshes your recollection as to the timing of
things. Okay. Exhibit 13 should be an e-mail from
Sally Shafer to Tom Troland and Mike Cavagnero.
A. I see.
Q. And in it she's referring you to a number
of websites. Correct?
A. That's correct.
Q. Now, this e-mail is dated September 21,
2007 at 10:03 a.m., and the e-mail in which you
summarize your conversation with Roger Kirby is dated
some two days before that, and so the reason I'm showing
you this is to ask you if that refreshes your
recollection at all about when and from whom you first
heard anything about a potential issue about Martin
Gaskell and religion, evolution, creation or anything of
that nature.
A. I'm surprised by that because I had
thought that this was the first -- that this e-mail from
Sally Shafer on September 22nd was the first that I had
heard of that issue. Obviously that's not the case, and
I don't -- it's possible that I -- it's possible that
the conversation with Moshe Elitzur happened before, but
I just don't recall. I'm confused by the timing myself.
Q. Okay. Believe me, I understand. This was
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ACTION COURT REPORTERS 102
two and a half years ago.
A. That's right.
Q. But obviously you would agree with me,
wouldn't you, that at some point before you called Roger
Kirby somebody somehow had brought to your attention a
potential issue involving Gaskell?
A. I think it's obvious from this paragraph
that I was aware of the issue on the 19th of September,
yes.
Q. I mean, you've called other people's
references for jobs in the past. Right?
A. Yes, that's right.
Q. Can I assume that you've never asked
anybody whether the person's religious beliefs affected
their job performance other than this time?
A. I don't recall doing that.
Q. So it's not on your standard list of
questions?
A. No.
Q. And going back to that exhibit,
Exhibit 12, the answer that you got from Kirby was
largely no, and you go on to say, "My contact, who had
read all of his" -- meaning Gaskell's -- "teaching
evaluations, indicated that a small percentage of
students would comment that 'it was refreshing to meet a
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ACTION COURT REPORTERS 103
scientist who actually believed in God.' But he
indicated that he had never read a comment -- or never
read a complaint about the manner in which Martin
discussed religious issues in the classroom." Is that a
fair summary of what Roger Kirby told you?
A. That's correct, yes.
Q. Okay. And then he goes on to say,
"Apparently, he had," -- meaning Gaskell -- "on occasion
invited students who were interested in these issues to
discuss them as a group outside of class."
That's what Roger Kirby told you?
A. That's what I remember.
Q. Okay. And you sent this e-mail to Troland
with the understanding that he would in all likelihood
pass it on to the other members of the committee?
A. Or share that information with the
committee.
Q. Okay. That's right. I think you told him
not to send it by e-mail. Why did you tell him that?
A. I think I answered that already. I think
I was uneasy about having contacted Roger Kirby after
having told Martin Gaskell I wouldn't do so.
Q. And then who knows where your e-mails are
going to end up. Right?
A. Exactly.
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ACTION COURT REPORTERS 104
Q. We all have that experience.
A. I was self-conscious about it.
Q. All right. Let's go back to Exhibit 13,
which is the Sally Shafer e-mail which I think you're
looking at in front of you. This is dated September 21,
2007. This is after you've spoken to Roger Kirby, and
Ms. Shafer says: Tom and Mike, I decided to see what
was available about Martin Gaskell on the web, in
particular about his approach to blending of science and
religion."
Had you had any conversations with Sally
Shafer prior to receiving this e-mail about the issue of
Gaskell's approach to blending of science and religion?
A. Not that I recall. As I say, I thought
this was the first I'd heard of the matter. Obviously
it couldn't have been. I must have heard about it
earlier, and it's possible that we even discussed it in
a committee meeting earlier, but I don't recall that.
Q. So it's possible that the issue of his
approach to blending of science and religion was
discussed in a committee meeting prior to
September 21st?
A. That's her words "blending of science."
Q. Right. I understand. There are not too
many ways I can express the issue without offending
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ACTION COURT REPORTERS 105
somebody.
A. I don't want to offend anybody either, but
I think that it's clear that there was some kind of
discussion before September 19th which alerted me to the
issue of creationism and evolution.
Q. Okay. And in this e-mail Ms. Shafer cites
one, two, three, four separate web addresses, and I
believe we've looked at these in other depositions, but
now you have to go through the exercise.
(Exhibits Nos. 14, 15, 16, 17, 18 and
19 marked.)
Q. Professor, we marked a number of exhibits
that I believe reflect the websites that Professor --
Ms. Shafer -- is she a professor? And what's her title?
A. She's a staff person. She's not -- she
doesn't have a Ph.D. degree, so she is just Ms. Shafer.
Q. Ms. Shafer. Okay. Anyway, the websites
Ms. Shafer references in her e-mail of September 21,
2007. Before getting to this e-mail, had you ever
looked at those websites before, if you recall?
A. I don't recall.
Q. Take a look at the other exhibits that
follow Exhibit 14. Fourteen appears to be Martin
Gaskell's homepage at the University of Nebraska,
Department of Physics and Astronomy. If you could just
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ACTION COURT REPORTERS 106
go through the others.
A. Yes.
Q. Are you aware of any other websites that
Sally Shafer was referring to in this e-mail other than
the ones you're looking at in Exhibits 14 through -- is
it 18?
A. No, I'm not aware of any others.
Q. Okay. I mean, there are references in
various e-mails, and in some of the testimony we've
heard so far in this case, to websites, plural, and I
just want to be clear that there's not some website out
there that we haven't seen yet that somebody was
referring to in the context of this case.
A. I can only tell you what I remember. I
remember his homepage.
Q. 14?
A. Item 14. I haven't looked through it in
detail, but I assume it's the website that I went to. I
remember reading 18.
Q. Exhibit 18, which is the lecture notes,
Modern Astronomy --
A. "Modern Astronomy, the Bible, and
Creation." And I remember the picture on 17, that stuck
out in my mind. I remember seeing that picture before.
But that's all I remember in all of these documents.
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ACTION COURT REPORTERS 107
Q. Okay. And you're not aware as you sit
here today of any other websites that anybody has
referred you to or that you came upon on your own that
were written by or about Martin Gaskell?
A. I don't recall any others, no.
Q. Taking a look at Exhibit 19, which appears
to be your response to Sally Shafer's e-mail forwarding
you those websites -- is that what that appears to be?
A. Yes.
Q. And you begin by saying, "I was aware of
these, and spoke at some length about the subject with a
former Nebraska Chair. I conveyed the info to Tom
recently." Does that refresh your recollection today
about whether you had some awareness of these websites
prior to receiving this e-mail from Sally Shafer?
A. Apparently I did, yes.
Q. But does it refresh your recollection
about that or just inferring that from what you've
written in the e-mail?
A. I'm inferring it from what I read in the
e-mail. I just don't recall.
Q. And then the next paragraph you write to
Sally Shafer, "Personally, I believe in the freedom of
religion and have no trouble with Martin so long as he
does not use the classroom or official university sites
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ACTION COURT REPORTERS 108
as a pulpit." That's what you responded to Ms. Shafer.
Correct?
A. Yes.
Q. And then you -- in the next paragraph you
summarize some of what you had put in the e-mail to Tom
Troland following the conversation with Roger Kirby.
You say in this e-mail: His former Chair indicated to
me that he would get student comments like, "It's nice
to have a prof who actually believes in God," but never
comments like, "I resent he's using class time to talk
about religion." Right?
A. That's correct.
Q. And you indicate to her that the committee
should be aware of the issues.
A. Yes. She had asked about that so that was
a response to her question.
Q. Okay. You indicated just a minute ago or
so that you have at some point read the handout, lecture
notes -- Gaskell calls them these notes -- entitled
"Modern Astronomy, the Bible, and Creation."
A. Yes.
Q. Do you remember when you read that in this
process?
A. Not the exact date. I have -- I had the
impression that I read it after I got the e-mail from
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ACTION COURT REPORTERS 109
Sally Kovash -- or Sally Shafer, excuse me, Sally
Shafer. I still do that.
Q. Sally Kovash was married to --
A. Sally Shafer had been married to Michael
Kovash many years ago, yes.
Q. Okay. So you believed to the best of your
recollection that you probably read it around the time
you got her e-mail, either after you got it or --
A. That's what I think, but I'm confused by
the timing, yes.
Q. Let's go on. The e-mail from Sally Shafer
is dated September 21st.
(Exhibit No. 20 marked.)
Q. Showing you what we've marked Exhibit 20,
which appears to be an e-mail from Tom Troland to the
committee, and it looks as though he is summarizing a
committee meeting that took place on September 24, 2007.
Correct?
A. Yes.
Q. He says: What We Did, which I assume he
means what the committee did. The committee came up
with criteria for evaluating the applicants. They rated
the applicants on a scale of 0, 1 or 2, higher numbers
are better, Troland says. Then we added up the numbers
to create a total rating for each applicant. And then,
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ACTION COURT REPORTERS 110
of course, he says these ratings are subject to all the
uncertainties that befall human judgments.
When the committee did this rating process
September 24th, Gaskell received an 8. Correct?
A. That's correct.
Q. And Knauer received a 5. Correct?
A. That's correct.
Q. Were you at this meeting, this committee
meeting?
(Deponent reviews document.)
A. I think I was, yes. In fact, at the
bottom it indicates that I was there, actually.
Q. I was going to say.
A. I think so.
Q. There's an indication near the bottom of
the first page that says, "Mike Cavagnero noted that an
observatory director with a Ph.D.," etc.
A. Yes.
Q. Then the next page of this e-mail, the
summary that Troland gives to the committee, indicates
"comments, from a knowledgeable individual, suggest that
Gaskell is an excellent teacher, and he interacts well
with students and the public. However, as a rather
senior individual (or for whatever reason) he is
described as less than willing to abide by decisions
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ACTION COURT REPORTERS 111
made by others. It is possible that he might not fit in
well as a non-faculty member under the direction of the
faculty."
Troland goes on to say, "But this comment
is mostly speculation to be balanced against his
considerable experience with virtually all aspects of
the director's job."
That's what Troland wrote in the e-mail.
Right?
A. That's what he wrote, yes.
Q. Okay. Let's go on to the next -- well,
before we go on to the next e-mail, is it fair to say
that as of September 24th the committee had not reached
a decision about who the job should be -- who they would
recommend the job be offered to. Correct?
A. I believe the on-campus interviews hadn't
taken place at this point yet, and I don't believe they
had any real decision until after the on-campus
interviews were conducted.
MR. MANION: Let's go on to this one.
(Exhibit No. 21 marked.)
Q. Showing you what we've marked Exhibit 21,
just to explain the obvious that I'm sure is already
known to you, we received this a week or ten days ago.
It's an e-mail that you sent on October 1, 2007 at 11:13
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ACTION COURT REPORTERS 112
to Steven Hoch and Kumble Subbaswamy, respectively the
dean and the provost. Correct?
A. That's correct.
Q. And the title is -- the title that you
gave it is "some advice." Correct?
A. Correct.
Q. Just for records clarification, the top
part of the first page of this is actually an e-mail
from Barbara Kriz to myself and Mr. Surtees forwarding
us this e-mail. Correct?
A. Correct.
Q. That's obviously not part of the e-mail
that you sent back in October.
A. Correct.
Q. Just so we understand that.
The e-mail is addressed to Swamy and
Steve, and Swamy, of course, is the name the provost
goes by. Right?
A. Yes.
Q. And you say, "I have asked our observatory
committee to select a director for the MacAdam Student
Observatory." Right?
A. Correct.
Q. Do you think as you sit here today, was
this news to Steven Hoch or Swamy, that this observatory
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ACTION COURT REPORTERS 113
director process was underway?
A. Steve Hoch had authorized the position so
he knew that we were going to search for someone, yes.
Q. Had you ever spoken to him verbally on the
phone about this position prior to October 1st?
A. I had requested the position from him and
so I don't remember if it was by phone or e-mail, but I
had certainly talked to him about the need for an
observatory director, and there was probably many
conversations about what the need was and what kind of
position it should be and at what level the position
should be and where the money was going to come from for
the position, various things of that kind I'm sure we
had discussed before this time, yes.
Q. How about anything regarding any of the
candidates, though?
A. No, I don't think there was any
conversation about any of the candidates prior to this
e-mail.
Q. Okay. The next sentence of the e-mail
reads, "One of the candidates they" -- meaning the
committee -- "have short-listed is something close to a
'creationist.'" And you put the word "creationist" in
quotes. Do you see that?
A. Yes.
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ACTION COURT REPORTERS 114
Q. What did you mean by something "close to a
creationist"?
A. I remember reading that website that we
referred to, the "Modern Astronomy, the Bible, and
Creation."
MS. KRIZ: Exhibit 18.
A. Exhibit 18. And when I read it I had
difficulty really understanding exactly what the point
was of that lecture. I'm not a biologist and I'm not an
expert on the creation biology debate, and so it looked
a little bit like a laundry list of -- different views
of different people and then some of his own views
interspersed in there. So I didn't walk away from
that -- that experience of reading that with a very good
idea of exactly what Martin Gaskell was with regard to
the creationism evolution debate. I didn't really
understand his particular point of view. So I didn't
really want to -- I mean the language I used here
"something close to a creationist" was simply an attempt
to indicate to Swamy and Steve that those were the
issues that were involved, not really knowing how to
characterize it myself because I didn't understand his
views.
Q. When you used the word "creationist" in
this e-mail, if I had asked you that day right after you
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ACTION COURT REPORTERS 115
wrote it, how do you define creationist? What would you
have said?
A. Again, I'm not an expert and I don't
really pay a lot of -- had not really paid a lot of
attention to the issue. I'm a physicist. I'm not
really very closely linked to the issue. In my mind, a
creationist was one of a group of people,
self-identified people, who believed that there was
scientific evidence for -- in favor of a biblical
interpretation of the origin of the universe. That was
what I thought a creationist was.
Q. At the time you wrote this would you have
thought that someone who held that view could not be
a -- would not be qualified for a scientific position at
a mainstream university like University of Kentucky?
A. I can honestly say I never thought about
it before. It's not an issue that I've really dealt
with in any respect. I never thought about it.
Q. Did you have some awareness when you wrote
this that the term "creationist" -- and you put it in
quotes -- had a pejorative connotation? Writing as a
scientist who -- well at least Swamy is a physicist.
Right?
A. Yes.
Q. Okay. Would you have thought that that
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ACTION COURT REPORTERS 116
had a pejorative connotation to somebody like Swamy with
his science background?
A. I'm sure that I was aware that some people
used it in a pejorative sense, but I don't think I was
intending to do that.
Q. Okay. You then go on to say in this
e-mail, "While he" -- meaning Gaskell -- "accepts
evolution, and finds biblical justification for it, he
maintains that it does not apply to human beings."
What's the basis for saying that he maintains it does
not apply to human beings?
A. As I say, I didn't really understand a lot
of the language. There's a lot of language in this
lecture, Item 18, "Modern Astronomy, the Bible, and
Creation," which I didn't understand. He talks about
things like humanistic evolution, and that I assume was
a term that had some meaning to people who were familiar
with the debates, but since I wasn't familiar with the
debates, I didn't know what the term meant. There were
other terms in there that I didn't know how to
interpret.
Q. Well, did you think that his use of the
phrase "humanistic evolution" indicated that he didn't
think evolution applies to human beings?
A. I -- no, I don't think I associated those
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ACTION COURT REPORTERS 117
two -- I don't think I was making an attempt to
associate those two things, but I vaguely also
remember -- and again, I'm confused by the sequence.
Q. Right, I understand.
A. But I remember that there was at some
point in all of this an e-mail from Gary Ferland to the
committee, and in that e-mail he said something like
this, and I don't remember exactly what words he used.
And now, whether that was before this or after this, I
can't remember what caused me to use that particular
terminology here, I don't know.
Q. I suspect you're referring to an e-mail
from Gary Ferland.
MR. MANION: Help me out here, Geoff.
You know what I'm talking about.
MS. KRIZ: I know exactly what you're
talking about, and I'm sure it's in here.
MR. MANION: It's all in here
somewhere.
A. I should say it's also possible with the
thing that prompted this e-mail was the conversation
with Moshe Elitzur, so it's possible I might have gotten
a question from him.
Q. Just so that we're not confusing ourselves
unnecessarily here, you mention an e-mail from Ferland
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ACTION COURT REPORTERS 118
in which he talks about his understanding of Gaskell's
views, and there is such an e-mail from Ferland which is
dated October 19th --
A. That's mine, then. That's not relevant.
Q. Okay. So that would not have been --
A. That would not be the reason, but it's
possible that I -- when I say the phrase "that does not
apply to human beings," that is possible that was my
interpretation of something in this lecture, and it's
also possible that it's something that I got from Moshe
Elitzur, but I can't remember which.
Q. As you sit here today, can you point to
anything in the lecture notes, which we labeled
Exhibit 18, that supports the statement -- and I
understand your explanation of your use of that
phrase -- that Gaskell thinks that evolution does not
apply to human beings?
A. No, I'm sure -- well, I have to read the
whole thing again here, but we did go over it in one of
the earlier depositions, and I'm really not competent to
find a sentence in here that would indicate that.
Q. Okay. You then go on in this e-mail to
say to the provost and the dean, "He also maintains
several websites supporting his view," and you cite
specifically one particular website, which I think if
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ACTION COURT REPORTERS 119
you check Exhibit 18, is what we're calling Exhibit 18.
A. I believe it's Exhibit 18.
Q. All right. And that's the -- Gaskell
calls it the notes entitled "Modern Astronomy, the
Bible, and Creation." Correct?
A. Correct.
Q. So that's what -- and it would have been
possible for Swamy and Steve to just link right to that
from your e-mail. Right?
A. Correct.
Q. And that link is not the same link as his
professional page or his homepage with the music and all
that, is it?
A. That's correct.
Q. And I don't know whether at the time he
could have jumped from "Modern Astronomy, the Bible, and
Creation" to the other things, but in any event, the
link was to "Modern Astronomy, the Bible, and Creation"?
A. That's correct.
Q. Okay. You then go on to say: He's an
accomplished astronomer, does excellent research with
undergraduate students, has more experience teaching and
doing outreach than the rest of the applicant pool. And
then you bring up Moshe Elitzur. Now, who is he?
A. He's a faculty member in our department.
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ACTION COURT REPORTERS 120
He's an astronomer.
Q. And how long has he been with the
University of Kentucky?
A. Longer than I have. I've been there since
1990. I don't know when Moshe arrived.
Q. You already testified that you recall
having a conversation -- you're not exactly sure when it
took place in the context of all this -- with Professor
Elitzur about Martin Gaskell?
A. That's correct.
Q. And is your understanding that Professor
Elitzur attended the lecture that Gaskell gave back in
1997, or he just heard about it?
A. I don't know.
Q. Can you tell me everything you can
remember today about that conversation with Elitzur
concerning Gaskell?
A. The primary sense that I had walking away
from it was that he was concerned about a public
relations issue with regard to hiring -- potentially
hiring an observatory director who had outspoken public
views about creationism and evolution which were
contrary to at least some of the biologists in the
biology department, the views of the biologists in the
biology department.
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ACTION COURT REPORTERS 121
Q. But you don't remember specifics of what
he told you about the talk itself back in '97?
A. I don't recall discussing the talk with
him. We may have, but I don't remember it.
Q. Okay. You indicate in the e-mail of
October 1st that Professor Elitzur thought it was a
mistake to even allow the committee to consider Martin
Gaskell for the reasons you just articulated. Right?
A. Yes.
Q. And that his concern was essentially a
public relations concern.
A. That's the way I understood it, yes.
Q. He was familiar with Gaskell as a fellow
astronomer. Right?
A. Yes. I believe he had complimentary
things to say about his scientific research in
astronomy.
Q. In your discussion with Roger Kirby, the
issue of -- you phrased the question of whether his
religious beliefs affected his job performance, and
we've testified that this is related to this whole
creation evolution issue. Had Roger Kirby -- did Roger
Kirby give you any indication at all that this type of
public relations problem vis-a-vis Gaskell and evolution
had ever arisen in Nebraska?
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ACTION COURT REPORTERS 122
A. No. No. I am vaguely recalling and --
that there was -- that the -- it might have been a case
where the disagreements that Martin Gaskell had with the
faculty at the University of Nebraska Lincoln, which
turned out to be disagreements about their astronomy
program, their graduate program in astronomy, and they
were getting rid of their Ph.D. program in astronomy,
those kinds of disagreements, that there might have been
some sense I had that there was general disagreements
between Martin Gaskell and the faculty, but I didn't
know what they were at the time that I called Roger
Kirby. So I knew there was an issue, but I didn't know
what the issue was, and it's possible -- and again this
is way back and I'm having a hard time recalling -- it's
possible that I thought that this might -- that the
evolution debate might have been one of those issues. I
knew there was an issue; I didn't know what the issue
was. It's possible that that might have been one of the
issues.
Q. But it turned out that after speaking with
Kirby that you learned that the evolution issue was not
an issue at all?
A. That's what I learned from Dr. Kirby.
That's what I understood from Dr. Kirby.
Q. And Gaskell, you understood, had been
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ACTION COURT REPORTERS 123
doing public outreach or a regular basis while in
Nebraska?
A. That's correct.
Q. For -- I think he was there 15 years at
the time he applied here. The whole time he was there
basically.
A. His CV indicates that he has done a lot of
outreach work while he was there, yes.
Q. If we go to the next page of Exhibit -- I
think it's 21, your e-mail of October 1st, you start at
the top of the page, "Up until now, committee
discussions have largely focussed on this candidate's
excellent research and teaching record at other
institutions," meaning Gaskell. Right?
A. Uh-huh.
Q. "And have relegated the above question" --
and when we're saying the above question, you mean the
creationism question, let's call it -- "have relegated
the above question to the, quote -- you put quotes --
"freedom of religion" drawer. Is that what you wrote?
A. That's what I wrote, yes.
Q. And you then go on to say, "This has been
my inclination as well, but I'm reluctant to dismiss any
suggestions that come from Moshe who often knows
better." What did you mean by that last comment?
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ACTION COURT REPORTERS 124
A. Just what I say, I think that when it had
been discussed earlier in the committee Tom Troland had
indicated to the committee that we shouldn't discuss it,
it was something he regarded as off limits, he did not
want to talk about any of those issues, and so the
committee had just talked about other issues related to
it and not talk about that one.
But it was clear that Moshe Elitzur
thought that I was making a mistake by not considering
the implications of Martin Gaskell's websites and public
lecture, and he thought that the committee should be
deliberating those things, and so I was writing to
the -- I was really writing to the dean and to the
provost asking for guidance as chair on what I could and
what I could not consider in the process of searching
for the observatory director. That's what I was looking
for.
Q. Elitzur was actually -- according to your
e-mail, he thought you were making a mistake allowing
the committee to even consider Gaskell. Right?
A. That's the impression I got from him, yes.
In other words, he seemed to feel that Martin Gaskell's
public stances on the issue of the creationism evolution
debate somehow should eliminate him from consideration
for a scientific position.
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ACTION COURT REPORTERS 125
MR. MANION: Let's break for lunch.
MS. KRIZ: Okay.
(12:24 lunch recess 1:12.)
MR. MANION: Let's go back on the
record.
Q. Dr. Cavagnero, before we broke for lunch,
at some point we talked about, among other things, the
phone interview that you did or that you participated in
with Dr. Gaskell. Remember?
A. Yes.
Q. Okay. In that phone interview did you or
whoever else was on the interview say anything about the
dean wanting you to ask Martin Gaskell something?
A. Yes.
Q. Okay. What do you recall about that?
A. There's a generic question which I asked
at all staff interviews in which I participate, it's a
question that was recommended by the dean at his -- at a
retreat that was organized for new chairs of departments
in order to teach them how to do their jobs, and I
remember that at the retreat that I went to in 2005 he
went through this procedure of how to conduct an
interview, he had a list of dos and don'ts, things you
can ask, things you can't ask, and then there was one
question which he emphasized, I remember -- this was
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ACTION COURT REPORTERS 126
Dean Hoch -- that he emphasized that he thought was a
good question, and I'm sure that I can't remember
exactly what the words that he recommended are, but it
was a kind of open invitation to the applicant to
volunteer anything that they were concerned about about
their abilities to perform the functions of the job.
And so I ask that of all applicants in all the
interviews that have taken place not only for the
observatory job but for every such job. And the
committee members don't like it. My faculty members
think it's a ridiculous question, but I ask it anyway.
Q. Because the boss told you that it was --
A. No. It's also been a very useful
question, I think, over the years. Most of the time the
response is nothing at all. Every once in a while
somebody has something on their mind that they want to
talk about and this gives them an opportunity to do it,
so that's all that is.
Q. And so presumably you did ask that
question in the phone interview with Dr. Gaskell?
A. Yes, I did.
MR. MANION: Off the record.
(Off-the-record comments.)
MR. MANION: All right. Back on the
record.
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ACTION COURT REPORTERS 127
Q. Before we broke for lunch we were talking
about an e-mail that you had sent to Dean Hoch and
Provost Subbaswamy dated October 1, 2007. We marked
that Exhibit 21. You received replies to that from both
of those individuals, I believe, and let me show you an
e-mail that appears to contain the replies.
(Exhibit No. 22 marked.)
Q. Okay. I'm showing you Exhibit 22, is it,
and it's dated October 3, 2007, 11:57 a.m., and it's
from Mike Cavagnero to the Search/Advisory Committee,
and the subject is something to think about. This
particular exhibit appears to contain your e-mail to the
committee and then beneath that you have something from
Swamy, who's the provost, as we know, and then
underneath that you have -- it looks like you're
forwarding an e-mail from Dean Hoch. Is that the way it
appears to you?
A. That's correct.
Q. Okay. Is there a reason why you didn't
just forward the e-mails from both of those gentlemen?
In other words, it looks like to me, and correct me if
I'm wrong, that you copied and pasted Swamy's and Hoch's
e-mails on to your e-mail to the committee; is that
right?
A. That's what it looks like to me.
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ACTION COURT REPORTERS 128
Q. Okay. Now, did you omit anything from
either e-mail before you copied and pasted it on to the
e-mail that was sent to the committee?
A. You mean like deletes --
Q. Yeah.
A. -- or something? No, I don't think I did.
No. I can't imagine I would do that.
Q. Okay. Referring to the part of this that
is your e-mail to the committee members, you say: One
of our faculty members who is not on the committee has
expressed some concern -- I'm sorry, this is where I
need to slow down -- has expressed some concern -- we
had this little discussion, took me to the woodshed --
about Martin Gaskell's websites discussing science and
religion.
You see where you say that?
A. Yes.
Q. Okay. Is that faculty member Professor
Elitzur?
A. I believe so, yes.
Q. Were there any other faculty members who
were not on the committee that expressed similar
concerns?
A. Not to me.
Q. You go on to say that individual suggested
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ACTION COURT REPORTERS 129
that there are people in Kentucky who might use his
appointment as an opportunity to push a particular
religious agenda, in particular, creationism. And then
you go on to summarize basically what you've already
testified to about what Professor Elitzur thought could
happen were Gaskell to be hired.
A. I'm paraphrasing that conversation which I
had with Dr. Elitzur, yes.
Q. I understand. And then you tell the
committee what you did, and basically you tell them that
you sent an e-mail to the dean and provost, and you
linked to Gaskell's lecture notes, I think we're calling
it Exhibit 18, "Modern Astronomy, the Bible, and
Creation," and presumably that e-mail that you referred
to is the e-mail of October 1, 2007, 11:13; is that
fair?
A. I'm sorry, I missed the last part of your
question.
Q. Okay. When you say to the committee that
you sent an e-mail --
A. Yes.
Q. -- is it fair to assume that you're
talking about the e-mail that we've marked Exhibit 21?
A. That's correct.
Q. There's no other e-mail that you can
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ACTION COURT REPORTERS 130
recall?
A. No.
Q. And you tell the committee that their,
meaning Swamy's and Hoch's, responses are appended
below.
A. That's correct.
Q. Okay. You then conclude your e-mail to
the committee by saying: Of paramount importance, at
least in my mind, is Martin's rights of free speech and
religious freedom. Correct?
A. Correct.
Q. Now, the response that's appended below
your e-mail from Swamy is basically a line and a half.
Correct?
A. Correct.
Q. And do you recall ever seeing in writing
anything else from Swamy about the questions you raise
in your October 1 e-mail? At any time.
A. No. I want to make sure something is
clear. I sent Exhibit 21 to both Swamy and Steve Hoch.
Q. Right.
A. Steve Hoch responded first, copied both me
and Swamy, and then Swamy chimed in with his line and a
half that you're talking about, saying I agree with
Steve Hoch's analysis. That's basically what happened.
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ACTION COURT REPORTERS 131
That's correct, yes.
Q. Okay.
A. And I've had no -- and I had no other
e-mails or correspondence with Swamy about the issue.
Q. How about conversations? Ever.
A. I have had subsequent conversations with
Swamy when -- and I think I've had two or three very
short conversations with him after the search was
finished, after Tim Knauer was hired, and I remember a
couple of those conversations.
Q. Can you tell me what was said in those
conversations.
A. The one that I remember most clearly was
he and I were walking in opposite directions on campus
and we were passing each other as we stopped to say
hello, and he asked me probably how it was going, and I
told him that someone had complained to the Equal
Opportunity Office about the search, and he said he was
generally aware of that. But the conversation may have
lasted 30 seconds to a minute, I don't know. And then
there was, I think, a similar conversation at a
Christmas party at his house afterwards where I was
commiserating on the impending legal problems associated
with a search process, but again, very short
conversation.
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ACTION COURT REPORTERS 132
Q. Was that conversation at the Christmas
party before or after the lawsuit was filed?
A. I don't remember that. Probably before,
but I don't know the answer to that.
Q. All right. Let's look at Steve Hoch's
response. He begins by saying that the URL you give
below, and I think it's fair to assume that he's
referring to the link that was in your e-mail.
A. Genesis.html.
Q. Right. Which I believe we've agreed links
someone to "Modern Astronomy, the Bible, and Creation,"
Exhibit 18?
A. I believe that that's correct.
Q. You don't have any reason to think that he
was talking about any other website?
A. Not to my knowledge, no.
Q. Okay. He says he thinks it should be
considered a scholarly paper. Did you think it should
be considered a scholarly paper?
A. I hadn't thought about it at the time. As
I say, I just sent to him asking for general advice.
What had occurred to me was that he -- was that on that
Exhibit 18 he had not only used his name, he had also
used his institutional affiliation, and also I had read
it so I was aware that he was constructing a -- kind of
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ACTION COURT REPORTERS 133
an academic argument of sorts and getting references and
all that kind of thing, so it doesn't surprise me that
someone would characterize it as a scholarly paper.
Q. Okay. The paper itself, the author of it
refers to it as notes. Correct? At the very first
thing on the top of the page.
A. It says: These notes are based on public
talks I have given at a number of institutions, yes.
Q. And then down a little bit under Summary,
it says this is a -- "This the web version of a
handout."
A. Yes.
Q. So the author is characterizing it as a
handout. Correct?
A. Yes.
Q. By the way, the lecture in 1997, is it
your understanding that Dr. Gaskell was actually invited
by the U.K. Physics Department to come and talk about
this topic?
A. As I say, I was in Boston for that whole
year, and I had no knowledge of it at the time.
Subsequently, in the process of all of these lots of
conversations, I came to understand that -- I'm not sure
now how -- that he had been invited in part by the
physics department as well as by some other campus
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ACTION COURT REPORTERS 134
groups to come and give a talk.
Q. Let's go back to Dr. Hoch's e-mail. He
suggests that the committee needs to determine whether
this paper and others he might have written are good
science.
To your knowledge -- but we know that you
read through "Modern Astronomy, the Bible, and
Creation." You described how you've done that, and
we've heard testimony from others, both within the
physics and astronomy department and the biology
department that they read or skimmed or scanned all or
parts of that same document. At any time have you
become aware of any other paper, scholarly or otherwise,
written by Gaskell that someone on the committee
reviewed?
A. There were a few websites that Sally
Kovash -- Sally Shafer had pointed us to, and a few of
them had references to similar comments, and I vaguely
recall that there were -- there was more than one
website that had comments about his feelings about
religion and science and intertwining of science and
religion. But this one seemed to be the most complete
document -- I'm talking about Exhibit 18 -- and so
that's the one I focussed my attention on and I read
because it was more or less a complete paper on that
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ACTION COURT REPORTERS 135
issue, and so I sort of ignored all the other ones and I
looked at this one. Does that answer your question?
Q. I think so. What I'm trying to get to is,
Dr. Hoch refers to Exhibit 18 as a scholarly paper and
suggests that the committee should review this, what
we're calling Exhibit 18, and others Gaskell might have
written, and I'm just trying to find out is there a
paper out there that came to the attention of the
committee that we haven't heard about yet or seen?
A. The only answer I have is only the other
websites that were mentioned by Sally Shafer. That's
all I know about anyways.
Q. And I think we have previously identified
the documents that she links to?
A. That's correct, yes.
Q. And when you say that there were things in
some of those websites, can you --
A. Well, I mean, for example, on this
website, which is his personal homepage, he has a link
to something called Bible and Astronomy Lecture Notes,
and I don't remember which one that is. I don't
remember that. In addition, on this website which he --
MS. KRIZ: Exhibit 16?
A. -- Exhibit 16, which is his professor
profile, he talks to some extent about the fact that
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ACTION COURT REPORTERS 136
he's a Christian and that he likes -- and that science
is a way for him personally to interpret God's universe
or something of that kind. So there were websites like
these that I recall that made some mention to the topic,
that's all I'm saying. But these are the only ones that
I'm aware of. I don't remember any others. Certainly I
don't remember anything as substantive as "Modern
Astronomy, the Bible, and Creation."
Q. I think that's what I'm trying to find
out.
A. Yes.
Q. You're referring to Exhibit 16 and you've
pointed to statements that Dr. Gaskell -- or attributed
to Dr. Gaskell in there about God's universe and the
fact that he's a Christian. Is there anything in
Exhibit 16 that talks about evolution or his position on
biological evolution?
A. I don't remember.
(Deponent reviews document.)
A. I don't know. I can't see anything
immediately, no.
Q. We do know that his favorite movie is the
Sound of Music, his favorite food is Chinese.
Dean Hoch continues in his e-mail to you,
which he's responding to your request for advice, "As
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ACTION COURT REPORTERS 137
Director of the Observatory, he is being hired for his
scientific knowledge. For example, is the 'young earth
creationist position' he advocates supportable on the
basis of the standards of science?" So the dean is
asking a question there. Right?
A. Uh-huh.
Q. And then if you turn to the next page, he
asks another question when he says, "Similarly, when he
asks, 'when was the beginning?'" -- and he references
page 7 -- "and uses astronomy to answer that question,
does he do so using standards that accord with good
science."
Okay? You read the paper, "Modern
Astronomy, the Bible, and Creation." Right?
A. Yes.
Q. Isn't it clear to you that Dr. Gaskell
does not advocate young earth creationism in that paper?
A. He -- my impression was -- and again I'm
not an expert on the subject -- my impression was that
he is not advocating for young earth creationism.
Q. So the dean is wrong in suggesting that he
advocates young earth creationism. Correct?
A. I think he was trying to make a more
general point. That's my feeling. He was trying to
tell us what we -- what kinds of questions we should ask
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ACTION COURT REPORTERS 138
in regard to the website. I'm not sure if he did a
careful reading of it or not, is what I'm trying to tell
you. I don't know that he did or that he didn't.
Q. And then when he asked similarly -- when
he asked, meaning Gaskell, when was the beginning, uses
astronomy to answer that question, he references page 7.
Isn't it true that Gaskell, in fact, uses standard
astronomy to answer that question?
A. Again -- where is this, now?
Q. At the bottom of page 7.
(Deponent reviews document.)
Q. I mean the dean's question is: Does he do
so using standards that accord with good science. And
Gaskell answers the question by saying, "Thanks to new
surveys and, in particular, to results from the
Wilkinson Microwave Anisotropy Probe" -- you know that,
WMAP -- "published in February 2003, astronomers now
confidently believe that the age of the universe is
almost 14 billion years. This age is supported by quite
a number of independent lines of evidence." It goes on
to cite those. That's standard --
A. Yes.
Q. -- good science, we would call it. Right?
A. That's standard knowledge -- that's
conventional knowledge, that's correct.
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ACTION COURT REPORTERS 139
Q. So is it fair to say that -- I guess my
question is, why didn't you reply, A, he doesn't believe
in young earth creationism and, B, yes, he does use good
science?
A. Again, my feeling was -- first of all,
this is a long document, "Modern Astronomy, the Bible,
and Creation." The dean and the provost are very busy
people. When I sent the e-mail requesting them --
asking them for advice, I really didn't expect that they
were going to sit there and read the whole document. I
was hoping that they would give me some generic advice
about what's admissible in a job search and what's not
admissible in a job search, and what kinds of things the
committee could do while still respecting Dr. Gaskell's
civil liberties, and what kinds of things they couldn't
do.
So I was looking for generic advice, and
when I got these responses I took those as examples of
things that the committee could do. That was my
understanding what he was telling me. So I didn't
really worry about the specifics because I didn't know
whether he had really read the document carefully. I
didn't think he was raising specific issues himself with
the document. I thought he was giving general advice
about what kinds of things are admissible, because
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ACTION COURT REPORTERS 140
that's what I asked him for, what I thought I was asking
him for, when I sent that e-mail.
Q. Let's move on to the next.
(Exhibit No. 23 marked.)
Q. I'm showing you what we've marked as
Exhibit 23, which appears to be an e-mail from Gary
Ferland to the committee dated October 3, 2007 at
1:06 p.m., and it looks like Ferland here is replying
to -- it looks like he's replying to part of your e-mail
about what the dean and Swamy have said.
A. That's correct.
Q. And going to the next page -- and by the
way, I think -- by the way, this refreshes my
recollection about the discussion we had earlier about
when Ferland had said something about what he thought
Gaskell's beliefs were.
A. That came in much later.
Q. Yeah. Well, I think we had said it was
October 19th, but it appears to be it was actually
October 3rd, which was still after you spoke to Roger
Kirby out at Nebraska. Correct?
A. Correct.
Q. But turning to the second page of this
e-mail, in fact the very last paragraph, Ferland
suggests, "I think that Mike should close his office
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ACTION COURT REPORTERS 141
doors so that it's just Martin and Mike and no
witnesses, and put it all out in the open, and ask
Martin what he would do. I think he would tell the
truth." You didn't think that was a good idea, did you?
A. Absolutely not.
Q. Well, in fairness.
MR. MANION: Off the record.
(Off-the-record comments.)
(Exhibit No. 24 marked.)
Q. Showing you Exhibit 24, this is your
e-mail of October 3, 2007 at 1:53 p.m. And if you go
down to paragraph 4, this appears to be your response to
Ferland's suggestion about you closing the door and
talking to Martin, and you say you're not comfortable
having that conversation. Correct?
A. That's correct.
Q. Why?
A. I was sensitive to both the controversial
nature of the websites and of -- of the websites and of
the debate of evolution, and I was also sensitive to the
fact that Dr. Gaskell did discuss his religious beliefs
in those documents. And I'm not a lawyer, and I don't
always know what -- how the law should be interpreted,
but I certainly didn't -- I certainly knew there was a
line that I couldn't cross with regard to invading his
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ACTION COURT REPORTERS 142
privacy on his religious issues, and I didn't want to go
anywhere near it, and so I was just sensitive to that.
I also -- I had a responsibility to the
department and to the university, but it's a very
restricted responsibility. It's not -- it wasn't my job
to cover all possible scenarios that anybody on the
committee could imagine or anybody could think about. I
had fairly limited concerns that I thought were my
responsibility that I was supposed to cover, and I
didn't want to go anywhere outside of that limited
domain. Is that -- did I make that clear.
Q. Yeah, that's -- this same exhibit, your
reply to Ferland, going backwards here, going up to
paragraph 3, again you refer to the anonymous concerned
faculty member, whom I think we've agreed is Professor
Elitzur.
A. Yes.
Q. And you indicate that his worry, Elitzur's
worry, was not so much about Gaskell but about other
people in Kentucky. Right?
A. That was the way it was expressed to me by
Dr. Elitzur, yes.
(Exhibit No. 25 marked.)
Q. Showing you Exhibit 25, which appears to
be an e-mail from Nancy Levenson dated October 3, 2007,
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ACTION COURT REPORTERS 143
3:05 p.m., to yourself, copy to the committee. And the
subject is: Something to think about. It appears to be
a part of this chain of e-mails started by -- well, I
guess originally started by you in sending the committee
members, the dean's and the provost's comments.
First of all, this is the only Nancy
Levenson e-mail I've seen so far in the case, and we had
a discussion early on in the deposition about the fact
that she was in favor of Dr. Gaskell. And just so we're
clear, do you remember whether she sent an additional
e-mail after this in which she expressed her decision to
vote for him, or what? You think there's another e-mail
out there, is what I'm asking, from Nancy Levenson?
A. There might be. I can't recall whether
she indicated that to me in an e-mail or whether she did
it verbally, it could have been either, and I just don't
have any recollection of that.
Q. Was she in Kentucky at this time?
A. She was -- for most of the search process
she was in Kentucky. She took part in some of the on-
campus interviews, I believe, but then I believe she
went down to a telescope maybe in the Caribbean or
something -- I don't know where it was -- she went down
to some telescope for part of that process.
And I can say generally, if you want to
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ACTION COURT REPORTERS 144
know, that I can remember very few e-mails that she sent
out. She's not a big e-mailer, so I'm not surprised
that this is the only e-mail from her.
Q. Okay. In this e-mail she appears to be
giving her view about the lecture notes, "Modern
Astronomy, the Bible, and Creation," where she says in
the second paragraph, "The closest direct argument about
astronomy in this work...." Is it fair to conclude when
she talks about "in this work," she's talking about
those lecture notes which we've marked Exhibit 18?
A. I assume so. I assume so. Yes.
Q. Again, this is not your e-mail.
A. No. I assume that she's referring to that
one lecture. Was it 18?
Q. Right, Exhibit 18.
A. Yeah, Exhibit 18.
Q. Okay.
A. That would be a reasonable assumption to
make.
Q. She says in this e-mail that she has "no
concerns about Gaskell's astronomical scholarship" and
that she's "extremely sensitive to legal and ethical
prohibitions against religious discrimination."
Clearly she uses those words in this
e-mail. Did she ever voice a similar concern verbally,
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ACTION COURT REPORTERS 145
either in a committee meeting or elsewhere, that you
heard?
A. Not that I recall. I think there was --
at one committee meeting or other there was a debate
about what was admissible and what was not and whether
we should be considering this material at all. As I
told you, Tom Troland was opposed to even considering it
at all. I don't remember her saying anything about it,
she may have, but I don't recall whether she said
anything at that time.
Q. Let's talk about that meeting. As you've
just indicated, Tom Troland took a position that that
issue shouldn't be part of the committee's consideration
at all.
A. I don't think it was just that one meeting
he did that. I think he did it consistently throughout
the process. He basically said this should not even be
in their consideration. That was my impression --
Q. Was the creationism evolution issue being
talked about at other meetings? Presumably it was if he
said it at the other meetings.
A. I assume that it was, yes. I don't
remember any specific -- I'm not trying to be evasive,
I'm trying to suggest that there wasn't a lot of
committee discussion about the issue because the chair
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ACTION COURT REPORTERS 146
of the committee was so opposed to it being introduced
in the first place.
I -- in fact, after I received the advice
from the dean and the provost, I felt some obligation to
have someone look at that website and answer the generic
questions about whether or not the statements in here
are scientifically tenable. I felt the need to do that,
and I was actually frustrated because the committee was
largely unwilling to do that because Tom Troland in the
first place would start the meetings by saying, I don't
think we should be talking about this subject at all,
and the debate would go in to whether or not we should
be talking about the subject at all rather than actually
looking line by line at what was stated in the website
and analyzing it from a scientific perspective. To my
understanding, that never really happened in the
committee meetings.
Q. Okay. Who on the committee was arguing
that the material should be considered as opposed to
Troland saying it should not be?
A. I think that the only person on the
committee -- yeah, but it didn't come directly that way.
Sally Shafer had a very specific concern about how
teachers in the K through 12 system with whom the
observatory director would be interacting would react to
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ACTION COURT REPORTERS 147
the kinds of information that were provided by
Dr. Gaskell on his website. So she was thinking it from
the outreach perspective. That was her reason for
being on the committee, she was an outreach person, and
she kept trying to ask the committee is this the kind of
outreach that we want this facility to do. Is this
something -- so she was trying to get the committee to
address that issue. I was trying to get the committee
to address the general issue that was raised by Steve
Hoch's e-mail, and I don't think either of us was
particularly successful. The committee as a whole had
very little to say about Dr. Gaskell's website. Does
that answer your question?
Q. I think so. How about --
MS. KRIZ: You don't have to ask that.
THE WITNESS: I'm sorry.
MS. KRIZ: Don't ask that.
THE WITNESS: Okay. I won't ask that.
MS. KRIZ: If you haven't answered his
question, I think Mr. Manion will let you know that.
MR. MANION: Yeah, that's the way it
works. Or I like your answer, I don't want you to go
any further.
THE WITNESS: Just my student moment.
When I'm with a student, I talk that way.
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ACTION COURT REPORTERS 148
MR. MANION: I understand.
MS. KRIZ: He's trying to teach you.
This is off.
(Off-the-record comments.)
Q. How about Professor Schlosman? There's
indications in the e-mails that early on in this e-mail
record that he, if I can characterize it, shared
Professor Elitzur's view about Gaskell and creationism;
is that fair?
A. I don't know. Dr. Schlosman is very
quiet. He offers very little. He says very little at
the committee meetings. He's reluctant to offer
opinions except when he's asked a direct question. So I
don't recall him volunteering an opinion one way or the
other on the issue.
Q. All right. Let's move right along.
(Exhibit No. 26 marked.)
Q. I'm showing you Exhibit 26, which is an
e-mail from yourself to Sally Shafer and Tom Troland
dated October 4, 2007 at 10:56 a.m. Again, this appears
to be your response to an e-mail from Sally Shafer where
Sally says, "Mike, I suggested that we get -- I suggest
that we get a biologist's take on Martin's published
views, specifically his websites." And you reply, "Good
idea, but let me do it." Is that --
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ACTION COURT REPORTERS 149
A. That's correct.
Q. When you got this e-mail, was this the
first time the question of getting the biologists to
review anything Gaskell had written, is that the first
time that came up?
A. I don't recall. It may have -- I had the
impression that Sally Shafer was trying for some time to
get us to think about the biologists' point of view. So
I don't remember if this was the first or one of a few
different communications along that lines. In other
words, she may have said something like that in a
committee meeting as well, I don't know. I just can't
recall.
Q. Now, as I understand it, Ms. Shafer works
as part of her outreach activities with Professor
Osborn, who is in the biology department.
A. That's correct.
Q. And I've seen on the Internet articles
that they have published as coauthors with other people
about science education issues. Does that sound --
A. That's correct.
Q. That's probably there?
A. Yes.
Q. And prior to receiving this, do you recall
her ever saying anything about having talked to any of
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ACTION COURT REPORTERS 150
the biology department people about Gaskell or his views
on evolution and creation?
A. No.
Q. You say: Let me do it. Why did you say
let me do it?
A. That's a good question. I'm not sure I
remember why I did. Let me think about it for a moment.
I guess I had her back to some extent. She was a staff
member on a committee mostly composed of faculty
members. She was pushing on an issue of outreach which
had a very particular meaning to her, especially with
regard to K through 12 education, and she was clearly
uncomfortable, and she wanted some progress on answering
some of the questions about that and she wasn't getting
any. I thought that if she went to the biologists and
asked for that, some of the members of the committee
might have taken offense at her going outside of the
circle, so to speak. So I thought -- I'm pretty sure
that what I was trying to do was to let the committee
know this was coming from me and not from her. That was
the sense, yeah.
Q. All right. Let's move right along.
(Exhibit No. 27 marked.)
Q. I'm showing you what we've marked
Exhibit 27, which appears to be an e-mail from you to
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ACTION COURT REPORTERS 151
Jeffrey Osborn dated October 4, 4:26 p.m., subject: two
items. Does this appear to be the e-mail in which you
essentially follow up on Sally Shafer's suggestion about
contacting the biologists?
A. Yes, it does.
Q. Is this the first time you had contacted
anybody in the biology department about the Gaskell
application?
A. Yes.
Q. Why Osborn as opposed to anybody else in
the biology department?
A. His position is unique. He's the outreach
professor of the biology department, and I was aware of
that. So outreach is his job, at least a significant
portion of his job.
Q. And, in fact, Sally Shafer had mentioned
his name in her e-mail to you, had she not?
A. I don't remember. Yes, she did. Yes.
Q. All right. In your e-mail to Osborn you
talk about an unrelated matter first, and then the
second item is this -- the whole observatory director
process. And you, I suppose, summarize what you
consider to be the issue that has been raised about
Gaskell. You describe it as he has some -- quote, he
has some -- who has some outspoken views on science,
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ACTION COURT REPORTERS 152
religion and the Bible." Right? That's what you say in
the second paragraph.
A. Yes.
Q. And then you refer Professor Osborn to the
website which we've identified as Exhibit 18. Correct?
A. Correct.
Q. And then you give him your thumbnail
sketch of what you've gotten out of it. And then the
following paragraph you're sort of paraphrasing what the
administrators, meaning Swamy and Hoch, asked you to do.
Correct?
A. Yes.
Q. And you ask Osborn to address whether
Gaskell "makes scientific statements about evolution
that show fundamental lack of appreciation for the
scientific method and/or for well-established scientific
principles." See that?
A. That's what I was asking him for, yes.
Q. Then you say, "I'm almost embarrassed to
ask you to look at it." Why were you almost embarrassed
to ask him to look at it?
A. I was embarrassed because it was my
understanding that it was our committee that was charged
with that task by the dean and the provost. We were
supposed to be doing that, and I was a little frustrated
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ACTION COURT REPORTERS 153
with the unwillingness or inability of my own committee
to render a judgment on that question. So I felt the
fact that I had to go outside was a little bit
disgruntling or embarrassing or frustrating, whatever
the right word is.
Q. Well, you're asking him to review "Modern
Astronomy, the Bible, and Creation," which is
Exhibit 18.
A. Yes.
Q. Isn't it true that the bulk of this is
about astronomy, and there's actually very little
reference to biology in it?
A. Oh, I wouldn't say that. I don't think
that that's true. In fact, there's not a lot of
astronomy in this document, if I remember right. It's
been a long time since I've read it.
Q. Well, the first two or three pages are
essentially quotes from famous scientists in history.
Right?
A. He gives a list of scientists to
demonstrate that they have strong religious beliefs, I
guess.
Q. Right. And then he goes into different
interpretations of the Bible basically. Right?
A. As I understood it, yes.
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ACTION COURT REPORTERS 154
Q. Page 4.
A. What the Bible Says About Creation, and
Different Interpretations of Genesis.
Q. Right. And lists and describes various
interpretive viewpoints of Genesis, I suppose, would it
be fair to say. Right?
A. That's correct.
Q. And then on page 6 at the top, he's
talking about -- at the top he's talking about what
certain early church fathers, theologians had to say
about interpreting Genesis, and then he starts talking
about the Big Bang theory, the Big Crunch, and the Big
Bounce, the Oscillating Universe theory, and then he
goes to where did the date 4004 BC come from, which is
one interpretation of Genesis. Doesn't Gaskell -- and I
think you even acknowledge this in the same e-mail --
shy away from issues of evolution and biology throughout
this paper?
A. I'm sorry, maybe I misunderstood your
original question. I thought you said that it wasn't
much about astronomy.
Q. No, no. That's what I'm saying. It's
mostly about astronomy, the Bible, and famous scientists
and what they believed about God or didn't believe about
God. Isn't it?
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ACTION COURT REPORTERS 155
MS. KRIZ: Well, I think the article
speaks for itself. It is what it is, Frank. And I
guess are you asking him whether it was his impression
after reading this that this was more about astronomy
than biology?
You don't have to re-review it right
now, Mike, you just have to answer whether it was your
impression when you read it.
A. My impression was that I had a hard time
deciding what the theme of the paper was. It seemed to
have a lot of -- a little bit of each of those things
mixed in in some way, and I wasn't sure that I
understood what the objective of the article was, and I
also had trouble interpreting some of the lingo that
goes with the whole creation evolution debate.
Q. I guess my overall question is why did you
think it was appropriate to have biologists review
"Modern Astronomy, the Bible, and Creation" as opposed
to astronomers?
A. The reason that -- the reason that the --
what I understood to be the reason that my own advisory
committee was unwilling to answer the question of the
dean was because they regarded themselves as physicists
and astronomers and they didn't want to make a
comment -- didn't want to go on record, if you will, of
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ACTION COURT REPORTERS 156
making a comment about biology and evolution and the
theory of evolution. So they were just reticent to make
a declaration outside their limited field of expertise,
and so I felt I needed some input from somebody who knew
more about that general issue because the issue is
discussed in some measure inside this document.
Q. At some point you got a response to your
request to Professor Osborn. Correct?
A. Yes.
Q. Now, did this particular exhibit -- what
is this number? 27?
A. 27.
Q. This has appended to it what appears to be
Jeffrey Osborn's response, does it not?
A. That's correct.
Q. But it's not clear to me when you received
that. And before you try to explain that, the reason
I'm confused is that on October 17th, about almost two
weeks later, you send this response from Osborn along
with two other shorter responses from Krupa and Steiner
to everybody else. Is it your recollection that -- or
what is your recollection about when you got the
response from Osborn? You know what? Let's go off the
record.
(Off-the-record discussion.)
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ACTION COURT REPORTERS 157
MR. MANION: Let's go back on the
record.
(Exhibit No. 28 marked.)
Q. Number 28 is an e-mail that's dated
October 5, 2007 from Sally Shafer to Mike Cavagnero and
Tom Troland, and this is one we've just seen in the last
couple of days. And in this e-mail -- first of all, do
you know who Angela Worley is?
A. No.
MS. KRIZ: That's my secretary in my
office. I forwarded them to her so she could copy them.
I meant to put that in my letter to you.
MR. MANION: We'll take her deposition
on April --
MS. KRIZ: Most of the Sally Shafer --
and this can be on the record -- that I sent you last
week, I had my secretary copy them.
MR. MANION: She's not a U.K.
employee.
MS. KRIZ: No.
Q. Anyway, this particular e-mail indicates
that Sally is saying, "I realize that Mike has this
covered by talks with the university legal counsel,"
and then she goes on to talk about her conversation with
somebody from the EEO office. Does this -- do you have
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ACTION COURT REPORTERS 158
any idea what she's talking about there?
A. I vaguely remember this. I think I can
remember. Let me just read it carefully so I can
remember it.
Q. Okay.
(Deponent reviews document.)
A. Yes, I remember this e-mail, and the
issue, which I believe was discussed at a committee
meeting --
Q. Right.
A. -- was what I could -- what anyone could
talk to Dr. Gaskell about during his on-campus
interview, what is appropriate for an on-campus
interview and what's not. And I --
MS. KRIZ: Before you go any further,
I'm going to object and instruct you not to answer any
questions that have to do with what U.K.'s legal
counsel -- legal advice that they gave you.
THE WITNESS: Okay. Can I indicate
that I sought legal advice or not?
MS. KRIZ: Well, obviously the e-mail
takes care of that, but I am informed that that
communication --
THE WITNESS: I see.
MS. KRIZ: -- is protected
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ACTION COURT REPORTERS 159
attorney-client privilege.
MR. MANION: I didn't even ask the
question she objected to.
MS. KRIZ: In anticipation.
Q. All right. So you had sought legal
counsel about the general issue of what Dr. Gaskell
could and could not be asked about during his on-campus
interview?
A. That's correct.
Q. Because there was an on-campus interview
either already scheduled or in the process of being
scheduled around this time, October 5th.
A. I agree.
Q. All right. And yes, I completely concur
with your counsel's instruction that you should not tell
me anything any legal counsel said to you, but my
question is, what was it about the upcoming interview
with Gaskell that you felt you needed to consult? Why
did you feel like you needed to talk to legal counsel?
A. I was not certain -- for example, the fact
that this document -- I had a concern about the
document, "Modern Astronomy, the Bible, and Creation,"
and my primary concern was that he listed his U.K. -- or
his University of Nebraska byline on that website. My
concern was again the governing regulation of the
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ACTION COURT REPORTERS 160
university which suggests that the university is not the
place to publicize your own personal opinions and
beliefs, and I saw his byline on there, and I was
concerned about whether that was appropriate or not.
In addition, since the document in
question does undoubtedly mention his religious beliefs,
I wasn't sure that I could even raise that question with
him. I wasn't sure that I could even point to this
document during the interview or not. I wasn't sure I
was legally entitled to do that or not. Because it
does -- there's no doubt that it does talk to some
extent about his personal religious beliefs.
Q. And in this e-mail Sally Shafer indicates
that she spoke to somebody from the EEO office. Right?
A. That's what it says, yes.
Q. Is it your understanding that person was
an attorney?
A. I have no idea.
MS. KRIZ: The EEO office is Patty
Bender and Terry Allen. I do not believe there are
lawyers on staff there. And I've given you everything,
so you know that that's not attorney-client privilege.
MR. MANION: Well, that's true.
MS. KRIZ: Okay. So I think you can
presume from that that it wasn't -- didn't involve legal
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ACTION COURT REPORTERS 161
counsel.
Q. All right. Let's move along here.
(Exhibit No. 29 marked.)
Q. Exhibit 29 appears to be, while it is an
e-mail from you to the committee dated October 11, 2007,
11:24 a.m., it generally appears to me to be your
summary of your on-campus interview with Martin Gaskell;
is that right?
A. That's correct.
Q. When -- it obviously took place -- or did
it take place on October 11, 2007?
A. Either that day or the day before. I
imagine it was the day before because I seem to remember
that that interview took place -- it was sort of an exit
interview -- it was at the end of the day. So since
this is 11:24 in the morning, I'm assuming this is the
next day when I summarized my recollections of the
interview to the committee.
Q. Do you know who else Martin Gaskell
interviewed with while he was here?
A. All of the candidates had one-on-one
meetings with all of the members of the committee who
were available at the time. Whether he met with all of
them or not just depended on availability. I don't
recall. But if possible he would have met with all of
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ACTION COURT REPORTERS 162
the -- each of the members individually of the
committee. That was the process.
Q. Did you attend any of the other
interviews?
A. No. They were one-on-one interviews.
Q. Do you know if he was interviewed by an
assistant dean or more than one assistant dean?
A. All of the three people who were
interviewed were interviewed with someone in the Dean's
office, probably it was Assistant Dean John Pica, but it
might have been another associate or assistant dean
depending on who was available. So all three of them
did, all three of the on-campus interviews did.
Q. All right. You indicated in this e-mail
summarizing your interview of Gaskell that Gaskell had
indicated that his ideal working conditions were one-
third teaching, one-third research, and one-third
service. Right?
A. Correct.
Q. But he also said to you, according to this
e-mail, that he thought that that distribution of work
was probably not appropriate at least for the first
couple of years. Right?
A. Correct.
Q. And then he gave you a breakdown, judging
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ACTION COURT REPORTERS 163
from this e-mail a fairly detailed breakdown, of how
many hours a week he thought would be devoted in this
job to various aspects of the job. Right?
A. That's correct.
Q. And he's got himself down for 13 hours a
week of teaching the introductory level courses. Right?
A. Correct.
Q. 191 and 192. Five hours a week technical
work on the telescopes, four hours training -- what is
that, graduate assistants?
A. That's correct.
Q. Seven hours a week with outreach,
including school groups and public observing nights.
Right?
A. Yes.
Q. Two hours a week teacher workshops?
A. Yes.
Q. Three hours with undergraduate research,
three hours with training users to use the facility
properly, and three hours miscellaneous.
A. Yes.
Q. And that was his breakdown of what he
suggested would be the appropriate breakdown for the
job. Right?
A. I asked each of the candidates who did on-
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ACTION COURT REPORTERS 164
campus interviews for their vision of what the job would
be, and this was his way of answering that question. So
he wanted to do it this way.
Q. Okay. And then you go on to say, "I also
raised the general issue raised by his website." And I
think we all know what the website is, but just for
purposes of the record, are we talking about the "Modern
Astronomy, the Bible, and Creation" and any other of the
links that Sally Shafer referred you to back several
weeks before this?
A. I believe so, yes.
Q. How did you raise that general issue?
A. I told him that I had a concern about the
governing regulations of the university and about
whether or not his use of the institutional affiliation
on his website would be considered appropriate if he
were doing that at the University of Kentucky if we
hired him for the job. So that was -- it was really a
question -- in fact, I remember reading to him the
appropriate governing regulations of the university at
that interview process.
Q. Did you say anything to him about the dean
wanting you to ask him anything or saying that the dean
was concerned about anything in particular about
Gaskell?
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ACTION COURT REPORTERS 165
A. I don't -- what I recall was that when I
raised the website, he reacted to it -- I'm not sure how
to characterize his reaction. He was a little bit taken
aback, I guess is probably the best I can say, that I
had raised the issue, and he gave me the impression,
maybe it was just body language or tone or -- I don't
know, he gave me the impression that he felt it was
inappropriate for me to raise the issue of the website
with him at the interview. And I may have said -- and I
don't remember if I said anything specific, but I may
have said that I had -- that I was also concerned about
the appropriateness of the question. I wanted to make
sure that I focused on the issues that I was concerned
with and that I had checked with the dean to make sure
that it was appropriate for me to ask these questions at
the interview.
Q. Did he say anything to you to the effect,
well, you can tell the dean that it's not an appropriate
question to ask?
A. He said something of that kind, yes, he
did.
Q. Did he indicate that he -- while you say
in the e-mail that he understood the university's GR,
which I guess is governing regulation --
A. That's correct.
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ACTION COURT REPORTERS 166
Q. -- that we discussed earlier. Correct?
A. That's right.
Q. You go on to say in this e-mail to the
committee members that you've come to the personal
conclusion that diversity cuts both ways. What did you
mean by that?
A. Well, the -- we are a big tent at the
University of Kentucky. We welcome people with all
kinds of views and all kinds of thoughts and ideas and
all kinds of cultural and ethnic backgrounds, and to me
personally I regarded -- I guess I regarded this whole
issue as just an aspect of Martin Gaskell's personal
character, and I didn't -- and I just thought that
diversity is a good thing, that having people with all
points of view is a good thing.
Q. So you didn't think at this point when you
wrote this e-mail that the websites that were referred
to or the issue raised by the website should be counted
against Gaskell's candidacy for the job. Right?
A. I never thought it should be an important
aspect. I never thought -- and to this day I don't
think it should be an important aspect in determining
his eligibility for the position.
Q. In fact, you say in the last line, "Your
advice to the committee is to forget about it," meaning
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ACTION COURT REPORTERS 167
the whole issue raised by the website?
A. Partly I think the reason I said that, in
fact, I remember was that I was tired of the lack of
progress on the issue and it was time to move on to
other things and bring the process to some conclusion.
So that's what I was trying to suggest that they do,
yes.
Q. All right. Let's move right along.
(Exhibit No. 30 marked.)
Q. Exhibit 30 is an e-mail from Mike
Cavagnero to the committee and the subject is Knauer
Interview. You start this, and correct me if I'm wrong,
but this appears to be your summary of your in-person
interview with Tim Knauer. Correct?
A. Correct, although I haven't read it in a
long time, so let me take a second to re-look at it,
please.
Q. Sure.
MS. KRIZ: Want to take a break?
MR. MANION: Yeah, while he's reading
that, we get to break.
(2:16 off the record 2:21.)
THE WITNESS: Can you repeat your
question for me because --
Q. Yes. Looking at Exhibit 30, which is the
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ACTION COURT REPORTERS 168
e-mail from yourself to the committee, subject Knauer
Interview, is this a summary of your on-campus interview
with Tim Knauer?
A. I believe so, yes.
Q. All right. The first line says, "Tim
Knauer was reluctant to go through the job description
exercise that the other applicants completed."
A. Yes.
Q. The job description exercise, is that what
Gaskell did when he broke down in terms of hours per
week?
A. I don't remember how we asked the question
to the candidates about the job description exercise.
What we just went through a minute ago was Gaskell's
version of that, the job description exercise, yes, but
I don't remember how we put the question to the
candidates.
Q. And Knauer indicated that at least in the
first year there would be limited outreach in the form
of public observing, and that most of his time would be
devoted to getting the facility working well for 191/
192 students, which I think we understand to mean the
introductory astronomy course students.
A. That's correct.
Q. He also indicated -- if you go down to the
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ACTION COURT REPORTERS 169
bottom of the next paragraph -- that he saw curriculum
development, involving consultation with instructors of
the various courses, was what he saw was the most time-
consuming part of the job in the first few years.
Right?
A. That's correct.
Q. He thought teaching the introductory
courses at night would be a hardship in the first year
because he hadn't done that in a long time. Right?
A. Yeah. I should probably clarify that.
Q. Okay.
A. Part of the job description that we had
envisioned was that the observatory director would
provide a sort of service to the instructors in the
introductory astronomy sequence by showing their
students the telescope at night and doing activities
with the students at the telescope at night. But in
addition would teach two evening sections; one in the
fall and one in the spring, of Astronomy 191 and 192,
and it was thought that the observatory director would
be the person to teach those evening sessions.
Q. Because the telescope isn't nearly as much
fun in the day as it is at night. Correct?
A. Not nearly, although we have a solar
telescope.
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ACTION COURT REPORTERS 170
Q. All right. Let's move on. Thirty-one.
(Exhibit No. 31 marked.)
Q. Exhibit 31 appears to be an e-mail from
Sally Shafer to Jeffrey Osborn with a copy to Mike
Cavagnero, and the subject is "your comments on
Gaskell." She's telling Osborn, is she not, that the
observatory committee will be meeting tomorrow, which
would have been the 16th, and that she's asking him to
summarize the results of his review of Gaskell's web
items and what he learned about him from others in
biology.
Is that what this appears to be?
A. Yes.
Q. All right. She then says, "At least the
verbal comments you made to me." Did she ever tell you
what those verbal comments were she heard from
presumably Osborn?
A. Not that I recall.
Q. Does this particular exhibit refresh your
recollection about whether or not you had seen anything
from the biologists prior to this day? I mean as I read
this, it seems you would not have.
A. I assume that I did not see it prior to
this day. And I've forgotten the date which I asked the
question. It was earlier.
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ACTION COURT REPORTERS 171
MR. MANION: Let's go on to this one,
Exhibit 32.
That was the 4th?
THE WITNESS: So this is 11 days
later.
MR. MANION: They're busy guys.
THE WITNESS: Yeah.
(Exhibit No. 32 marked.)
Q. All right. Exhibit 32 is an e-mail from
Tom Troland to the committee, October 16, 2007 at
3:26 p.m. This appears to be, does it not, Troland's
summary of a committee meeting that took place on
October 16th?
A. Yes.
Q. And at this point in the process it
appears that the search, or the process is down to three
finalists. Correct?
A. That's correct, yes.
Q. Gaskell, Sykes and Knauer. Correct?
A. Correct.
Q. And there's a discussion of various
comments by the committee members about the strengths
and weaknesses of each candidate. Right?
A. Yes.
Q. Just generally speaking.
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ACTION COURT REPORTERS 172
A. Yeah.
Q. And at least as of October 16th, based on
this summary, it appeared that no consensus had
developed regarding a leading candidate. Correct?
A. That's correct.
MR. MANION: Let's move on. Mark this
one, please.
(Exhibit No. 33 marked.)
Q. All right. Showing you what's been marked
Exhibit 33, this is an e-mail from Mike Cavagnero to
Jeffrey Osborn and Jim Krupa with a copy to Sheldon
Steiner. As I read this you are -- correct me if I'm
wrong -- you're responding to Jeff and Jim, which would
be Osborn, Krupa. Right?
A. That's correct.
Q. And this would indicate that at the time
you wrote this you had already received from them their
review of what they were asked to review. Right?
A. It's appended below, I think, yes.
Q. At least it starts there.
A. Yeah. I see.
Q. Okay. And in the top line you say to them
that there are strong proponents of Martin on our search
committee. Right?
A. Yes.
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ACTION COURT REPORTERS 173
Q. Who were those strong proponents at this
time, October 17th?
A. Tom Troland was a principal proponent.
Gary Ferland was a proponent, although he was not
officially on the committee. And whether or not Nancy
Levenson had weighed in on Martin's behalf at that stage
or not, I don't know. I don't recollect.
MR. MANION: Let's mark the next one.
(Exhibit No. 34 marked.)
(Off-the-record discussion.)
Q. Exhibit 34 should be an e-mail from Mike
Cavagnero to James Krupa, October 17, 2007 at 10:24.
Correct?
A. Correct.
Q. And here you're responding to Professor
Krupa who had sent you his comments about Gaskell's
suitability for the job from his standpoint. Correct?
A. Correct.
Q. And, in fact, as I read this, Krupa is
actually commenting on Osborn's analysis, right, that's
what he starts out doing?
A. Yes.
Q. Have you ever spoken to Professor Krupa
about this whole issue with Gaskell?
A. Other than the e-mails that you have?
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ACTION COURT REPORTERS 174
Q. Yeah.
A. No. In fact, the first time I met him was
at his deposition a few weeks ago.
Q. Okay. So prior to receiving this e-mail,
you had not spoken to him about this Gaskell issue?
A. No.
Q. And you hadn't spoken to him subsequently
at all about this issue up until the time of his
deposition, and I'm not sure you had discussed it with
him then.
A. That's correct.
Q. Your only communication with Professor
Krupa on the Gaskell issue was through a series of
e-mails, all of which I hope to show you this afternoon.
Correct?
A. That is correct. As far as I know, that's
correct, yes.
Q. In this e-mail from Krupa -- first of all,
he refers to -- he calls you Mark, correct, Greetings,
Mark?
A. That shows you how well connected we are,
yes.
Q. That might say something about his ability
to recollect things but we'll leave that. And then it
refers to Professor Gaskell as Gaskin. Right?
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ACTION COURT REPORTERS 175
A. Yes.
Q. And he says, "I've heard Gaskin bash
evolution." He -- well, he doesn't specify any
particular quotes, right, in this e-mail of Gaskell, or
Gaskin?
A. No. I assume there he's referring to the
talk that was ten years earlier, but that's just an
assumption. I don't know.
Q. Well, in the next paragraph he says -- he
refers to the talk in Memorial Hall. He says -- and he
WILL, in all caps, bash evolution! He did when he spoke
here many years ago in Memorial Hall. I really ripped
in to him during question-answer period and his
responses only got more ridiculous and more
creationistic in nature. I found him to be a complete
embarrassment to my alma mater (the University of
Nebraska) after hearing his talk.
You read that on October 17th presumably.
Right?
A. Apparently, yes.
Q. Was that the first time you had ever heard
of Professor Krupa, quote, unquote, ripping in to
Gaskell during the question-answer period at the
Memorial Hall lecture?
A. I had -- I was aware probably from my
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ACTION COURT REPORTERS 176
first conversation with Moshe Elitzur that there was a
controversy during the talk, there was some debate at
the end of the talk. I was aware of that. I did not
know who that person was -- or person or people were who
were debating with Dr. Gaskell at the talk. So I had no
idea that that was Jim Krupa.
Q. Okay. And I believe you testified earlier
that you had heard that there had been some arguing at
least, contentious back and forth during the question-
answer period?
A. That's correct.
Q. All right. And underneath Krupa's e-mail
to you on this exhibit is what appears to be Jeffrey
Osborn's response to -- presumably to your original
request for review. Correct?
A. That's correct.
Q. Did you read the Osborn response?
A. I did.
Q. And did you form any impression of the --
MR. MANION: I'm going to withdraw
that question. Let's move on to...
(Exhibit No. 35 marked.)
Q. Exhibit 35 is another e-mail from you to
the committee, it's dated October 17, 2007 at
10:44 a.m., the subject is: the biologists weigh in.
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ACTION COURT REPORTERS 177
You tell the committee members that you had asked
colleagues in the Department of Biology to assess the
scientific credibility of Martin Gaskell's website.
Right?
A. Correct.
Q. Had you already told the members of the
committee that you had asked them to do that, or was
this, do you think, the first time they knew this?
A. I really don't recall. I don't remember
if I had mentioned it. I know that I had indicated to
Sally Shafer that I was going to do so. I'm trying to
remember. You know, I might have said -- I might have
told the committee that I had asked the biologists to
weigh in and I might not have. I can't recall.
Q. Okay. And then underneath your e-mail to
the committee you append first the response of Jeff
Osborn. Correct?
A. Correct.
Q. And then on the next page about three-
quarters of the way down, maybe a little more, you say
the second comment is from Jim Krupa. Right?
A. Correct.
Q. And it appears to me, correct me if I'm
wrong, that what you've done there is append the comment
that Krupa had already sent you in the exhibit we just
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ACTION COURT REPORTERS 178
looked at, which was Exhibit 34.
A. That's correct.
Q. However, you did clean up his spelling, it
appears, because in this e-mail it says Gaskell,
correctly spelled, and it's to Mike, not Mark. Correct?
A. Apparently I did.
Q. Did you -- why did you do that?
A. I have no idea.
Q. Do you recall whether you changed anybody
else's e-mails in this process in any way?
A. I don't recall anything.
MS. KRIZ: I guess I'm going to object
to the form of that question. I mean, the inference is
that if he doesn't remember doing it, I don't know that
you can -- that that's a proper foundation for that
question.
MR. MANION: Well, who would have.
Q. Well, whoever corrected the spelling
didn't correct the spelling in Osborn's where he calls
him Professor Geskell. In any event, you don't recall
whether you made the correction. Right?
A. I'm entirely willing to believe that I
made the corrections, but I have no idea why I did if I
did.
Q. And also on this exhibit we have --
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ACTION COURT REPORTERS 179
starting at the very bottom of page 2, you reference a
response from Shelly Steiner, who was at the time the
chair of the biology department. Right?
A. That's correct.
Q. And his response appears on page 3 of this
exhibit, and did you at any time, either before or after
you forwarded this to committee members, did you do any
sort of analysis of the biologists' responses from the
standpoint of determining whether or not they're even
factually correct in terms of what they claim Gaskell
says?
A. I read them and -- but I -- no, I did not.
I read them, and I was a little bit surprised by the
vehemence of the reaction, but I was expecting a
negative reaction. And I got more than I bargained for.
There were very strenuous objections, and I thought I
would let the committee digest them themselves.
Q. And so you forwarded this to the members
of the committee. Right?
A. That's correct.
Q. And this would have taken place
October 17th. It was apparently the day after a
committee meeting that we had previously discussed --
A. I think that that's correct, yeah.
Q. -- in Exhibit 32. There's Troland's
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ACTION COURT REPORTERS 180
summary of a committee meeting that took place today, as
he puts it?
A. That's correct.
Q. So the biologists weigh in the next day.
Right?
A. That's correct.
Q. And the committee members are forwarded
their vehement responses. And do you have any
discussion, verbal, whether they're on the phone or in
person or by Skype, with any member of the committee
and/or Gary Ferland about the biologists' response?
A. Yes. I don't use Skype, just for the
record.
Q. Okay. That's important.
A. I remember bumping into Tom Troland, the
chair of the committee, in the hallway soon after I sent
this e-mail, I think the same day or the next day or
something of that kind, and Tom was upset by the e-mail.
He indicated, and I don't remember all the -- it was a
short conversation. I don't remember exactly what was
said, but he -- I remember him saying so it's all over
or something like that. So he seemed to think that this
was the straw that was going to break the camel's back
or something of that kind, so he regarded it as the end
of the issue, and he was very upset by that.
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ACTION COURT REPORTERS 181
Q. Were you surprised that he regarded it as
the end of the issue?
A. I guess I had the impression before the
biologists' report came in that the committee was
leaning toward Tim Knauer. It was just an impression.
It's not hard to count the votes around the table to see
where they -- you know, kind of questions they're asking
and how they -- who they seemed to favor. I had the
impression that the committee was leaning for Knauer
before the report came in, and I think that I also had
the impression that Tom was already starting to get
upset by what he started to realize was the eventual
decision for Knauer. So -- I forgot your question. I'm
sorry, I forgot what the question was I was answering.
MS. KRIZ: The court reporter can read
it back.
(Last question read.)
A. I guess in a sense I wasn't surprised. It
occurred to me that it was finally dawning on him that
he was going to lose this vote in the sense that he
strongly favored the candidate who was not going to be
selected by the committee.
Q. So even before the biologists weighed in
and you had an impression that Knauer was the favorite
of the majority of the committee. Right?
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ACTION COURT REPORTERS 182
A. It was just an impression. You know, not
that -- I think that they had come to the conclusion in
the meeting of the 16th that they didn't want to take a
vote yet or they weren't ready to take a vote yet, but
just from the sense of the people around the table I
could see that three or four of them were probably
favoring Knauer at that point.
Q. And this was in spite of the fact that in
September they had voted -- or they had rated the
candidates on some sort of a numerical scale and Gaskell
had received an 8 and Knauer had received a 5?
A. That was prior to the interviews on
campus, that's correct, yeah. So it seemed like the
interviews on campus had been sort of a shift in the
committee's ratings of the candidates, yes.
(Exhibit No. 36 marked.)
Q. I'm showing you what we've marked
Exhibit 36, which appears to be an e-mail from Tom
Troland to Gary Ferland dated October 18, 1007 at 2:32
p.m. It looks like the last paragraph of Troland's
e-mail to Ferland he says, It looks as if Gaskell has
been blackballed by the biologists. But then he goes on
to say, Mike C implies that the dean would never go for
the hire. It would create too much friction with
biology. Do you see where he says that?
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ACTION COURT REPORTERS 183
A. I do.
Q. Do you know why he would think that Mike
C, which presumably is you, why he would say that Mike C
implies that?
A. I have no idea why he would think that
whatsoever.
Q. I understand this is his words to somebody
else --
A. Yeah.
Q. -- but does it refresh your recollection
in any way of anything you said to him regarding the
dean not going for the hire?
(Deponent reviews document.)
A. I don't know. I really can't imagine what
that's referring to.
MR. MANION: Let's go on to this one.
(Exhibit No. 37 marked.)
Q. No. 37 is an e-mail from Krupa to Osborn
dated October 19, 2007 at 2:47 p.m., and in this e-mail
Professor Krupa says to Professor Osborn, "I'm thrilled
that you went right to the Provost with this. May piss
off those in physics, but it had to be done. Congrats,
Jim." And I haven't read it this way, but he really
seems to be fond of exclamation points. Have you ever
seen this e-mail before?
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ACTION COURT REPORTERS 184
A. No.
Q. Are you surprised that Krupa is telling
Osborn that I'm thrilled you went to the provost with
this?
A. I'm surprised. I had no knowledge of it.
Q. Have you ever heard of Professor Osborn or
anybody else from the biology department going to the
provost over the hiring of Gaskell?
A. No.
Q. Never discussed it with Professor Osborn
or Professor Krupa or the provost?
A. No.
(Exhibit No. 38 marked.)
Q. Exhibit 38 is Troland's e-mail to you of
October 19, 2007, 4:57 p.m., which he titles The Gaskell
affair.
THE WITNESS: I can see the mini
series now.
MR. MANION: I think you're in it.
THE WITNESS: Maybe they'll get Brad
Pitt.
MR. MANION: Who do you want to play
you?
Q. The Gaskell affair is an e-mail that
Troland wrote to you, I guess two days after you sent
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ACTION COURT REPORTERS 185
around the biologists' response, right, October 17th,
October 19th?
A. Yes.
Q. And is it fair to say that in this e-mail
Troland expresses his opinion to you of what he
considers to be deficiencies of the search process --
A. Yes.
Q. -- for lack of a -- okay. His opinion, I
understand that.
A. Yes.
Q. He says at the beginning of the second
paragraph, "It's become clear to me that there's
virtually no way Gaskell will be offered the job despite
his qualifications that stand far above those of any
other applicant."
As of that day was it clear to you that
there was no way Gaskell would be offered the job?
A. I know that there was a committee meeting
on the 16th, and I believe there was a committee meeting
not too long after that, another one. I don't remember
whether this e-mail came before or after a subsequent
committee meeting, so I can't answer that.
Q. All right. Troland goes on to say, "The
real reason why we will not offer him the job is because
of his religious beliefs in matters that are unrelated
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ACTION COURT REPORTERS 186
to astronomy or to any of the duties specified for this
position." That's what he says. Right?
A. That's what He says, yeah.
Q. Were you surprised that he said that in
this e-mail?
A. I was, and I thought it was unfair to the
committee members who had, I thought, exercised
considerable restraint in the process of their
deliberations, and I thought it was irresponsible for
him to say that, and I still think so.
Q. Going down in this e-mail in the one, two,
three, fourth paragraph, Troland says, "If Martin were
not so superbly qualified, so breathtakingly above the
other applicants in background and experience, then our
decision would be much simpler. We could easily choose
another applicant, and we could content ourselves with
the idea that Martin's religious beliefs played little
role in our decision. However, this is not the case.
As it is, no objective observer could possibly believe
that we have excluded Martin on any basis other than
religious."
Again, I take it you were surprised that
he would say that in an e-mail to you?
A. I'm not sure I was surprised in the sense
that he had always said throughout the whole process
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ACTION COURT REPORTERS 187
that he thought that the controversial website was off
limits and we shouldn't be talking about it at all, and
the fact that it was considered, bothered him, and I
think the fact that the timing that the biologists'
report came very close to the crucial day where the
committee was trying to make its decisions, that those
things seemed inappropriate to him. He certainly had
every opportunity to say to the committee that he
thought it was inappropriate to consider those issues.
He did say so many times. But that was his personal
opinion, and it wasn't shared by the other members of
the committee.
Q. So he did say that to the committee?
A. He said many times that they should not be
considering that website, and he thought it should have
no bearing on the outcome of the decision. But he was
the only member of the committee, except for Gary
Ferland, who was not officially on the committee, who
said that.
Q. But you yourself agreed, I think you said
earlier, that you thought it should have played little
role in the decision. Right?
A. That's my personal belief, yes. I believe
that it was a question -- that that website raised
questions of judgment with me rather than substantive
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ACTION COURT REPORTERS 188
questions about his scientific ability. To me it was an
issue of judgment, and I thought the judgment question
was a really reasonable one for everybody to consider,
and I tried to focus efforts on that.
Q. Was there ever any discussion among
committee members when you were present about asking
Gaskell whether he would agree, if he accepted the
position, not to publicize those views?
A. There was a couple of things. At the time
of the on-campus interview when I interviewed Martin
Gaskell, when I raised the issue of the website and of
his use of the institutional affiliation on the website,
to be perfectly frank, I was hoping that he would say to
me, if that's going to be a problem at U.K., I'll put my
home address on it and I won't put my U.K. address on
it. To be honest, up until the week of the interview he
was my favorite candidate, and I was hoping this problem
would go away, and I really just wanted it to go away.
So at the interview process I was presenting him with
the website in hopes that he would recognize that there
was an issue about the use of his institutional
affiliation on there. In addition during that
interview, he conveyed to me that he sometimes passed
out copies of that website to students in his classes,
and so we talked about those issues, and I was hoping he
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ACTION COURT REPORTERS 189
would say if you have a problem with that as my future
employer, I won't do it. But he did not say that. So
there was that sense.
In addition, I think that Gary Ferland
sometime in this whole process sent an e-mail in which
he suggested something like what you said, that maybe we
should just put him on as a temporary three-year
employee or something like that. And so those were the
things that I remember that were that kind.
Q. So Gaskell didn't volunteer what you were
hoping he would volunteer, but did you ask him?
A. No, I didn't ask him.
Q. Why not?
A. Because he reacted rather defensively when
I brought up the issue of the website. In fact, when I
pointed out his use of the University of Nebraska
byline, he said just reflexively, my address? In other
words, he was trying to convey to me that it was none of
my business and that was his personal thing. So the
initial reaction -- I hadn't anticipated an adverse
reaction from him, I got an adverse reaction, and I
really didn't know where to go with it. So...
Q. Is it really your experience that
professors at the University of Kentucky don't publish
things or appear in a public domain without -- that they
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ACTION COURT REPORTERS 190
never use their university byline?
A. This was really the focus of my interest
and my concern because this was not a faculty job, this
was a staff job, and I'm the supervisor of the
observatory director, and if the observatory director,
who is in a staff position does something which the
faculty don't approve of, then the person who is going
to have to deal with that is me. You understand?
So if he came to the University of
Kentucky, published the website and included a
University of Kentucky byline on that website and the
faculty objected to it, it was going to fall on me to
resolve that conflict, and so I was concerned about
that. That was the nature of my concern. When I say
that I thought it was a judgment question, that's what
I'm talking about was is it appropriate for a staff
person to publish personal views or to advocate personal
views in a classroom, in an outreach context, on a
website. These were the things that I felt I had
responsibility to determine as his future supervisor.
Q. You had received no indication from your
sources in Nebraska that Gaskell's airing of his
personal views about anything had ever been a problem
during the time he was there. Right?
A. That's correct. That's why I asked that
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ACTION COURT REPORTERS 191
question to Roger Kirby when I asked him on the phone,
and he indicated it had not been a problem. But still I
could envision, easily envision, that if Dr. Gaskell
published that website with the U.K. byline on it, that
members of my faculty would complain to me, and then the
issue would arise and I'd have to deal with it at that
point. Whatever the right thing to do is, at that point
I would have to deal with, so I felt I needed to address
it beforehand to understand it better and to see --
again, I was hoping he would say if you have a problem
with that, I won't do it. And then the problem would go
away, and I wouldn't have to worry about it anymore.
Q. But you didn't ask him whether he would
agree to do that?
A. I didn't -- I don't think I did ask him
point blank. I was hoping he would volunteer that. He
could see that I had a problem with it, in other words,
in the course of the interview, that I was concerned
about it.
Q. I guess I did ask a generic question about
have you never seen -- maybe I didn't ask this question,
I'll ask it now -- have you not seen things in the op-ed
pieces in newspapers in this state written by University
of Kentucky professors that identify them as University
of Kentucky professors?
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ACTION COURT REPORTERS 192
A. On occasion I do see such things, yes.
Q. I'm not asking for a legal opinion, but do
you consider that to be a violation of that governing
regulation that you presented Gaskell --
MS. KRIZ: Well, let me object because
I don't know that you have any additional information as
to whether that was reviewed by the university before it
was published.
MR. MANION: Yeah.
MS. KRIZ: The regulation merely
requires that the university sign off on it; so if there
appear to be things in the past, to ask the question
completely you'd have to -- you know, some people
publish things and the university is okay with those. I
don't think it's necessarily the inclusion of the
university affiliation that's the problem. It's the
prior review and whether that would be...
Q. So when U.K. writer in residence Erik
Reece every year publishes his op ed in the
Courier-Journal that says that the resurrection is a
myth, that's not a problem for the university?
A. I don't know the answer to that. I
haven't studied it. I don't know the answer.
Q. I'm sorry, that's not a fair question.
But my point is --
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ACTION COURT REPORTERS 193
A. I understand.
Q. Surely we've seen things published in
newspapers and other places where they have a U.K.
professor byline, and so it would not have been bizarre
or unheard of for somebody like Gaskell to have a
website that says I'm a professor at the University of
Nebraska. Right?
MS. KRIZ: Object to the form of that
question. Go ahead. You can answer if you can.
A. Again, this is not a faculty position, and
maybe it's just in my mind I make a distinction between
a faculty member and a staff member. A staff number is
a person who is hired to do a very specific job under
the instructions and the provision of the faculty, and
that's the kind of job I had to offer, that was the job
he applied for, and my concern was that if he did things
that the faculty did not approve of, if he distributed
material in his classroom that the faculty did not
approve of, these things run counter to the idea that
it's the faculty that determines the curriculum of the
department, and that was my concern as the supervisor.
Q. Okay. Let's move on to --
MR. MANION: Where are we? 38.
(Exhibit No. 39 marked.)
Q. Exhibit 39 is an e-mail from Sally Shafer
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ACTION COURT REPORTERS 194
to Gary Ferland, and it looks like to the rest of the
committee, and she is responding to a previous e-mail of
Ferland on thoughts on Gaskell's biology. And in this
e-mail Ms. Shafer says, "If the job were solely about"
-- I'm looking in the second paragraph. "If the job
were solely about physics and astronomy and within the
university, I would strongly agree with you that
Martin's beliefs on biology and religion don't matter a
hoot and should not figure in the discussion at all."
That's what she says. Right?
A. Correct.
Q. And she also says, "And what's one more
crazy professor anyway," which I'm sure you all got a
good chuckle.
A. We've got a few.
Q. Okay. She also goes -- further on in this
e-mail she raises this issue that's -- I gather from
what I've read here from her and what you testified to
today, of particular concern to her is the outreach
component of the job. Right?
A. Yes.
Q. And she talks about, "An outreach director
who applies fundamental science processes correctly in
some cases, and yet incorrectly in other select cases
(for the purpose of promoting a nonscientific agenda
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ACTION COURT REPORTERS 195
which he openly promotes on his website, and to which
the biologists WHO DO OUTREACH have objected) causes me
great concern."
Did she ever explain in -- I mean, I know
this is an e-mail -- did she ever explain in a committee
meeting how she reached a conclusion that Martin
Gaskell, who I'm assuming she's referring to here, does
those things?
(Deponent reviews document.)
Q. I mean we can read what she says in the
e-mail, I understand that, but the question is, did she
ever voice this type of sentiment in a meeting?
A. I think we were all aware that he
published the website, that he distributed the material
on the website to students in his classes, and that he
had appeared on presumably more than one campus around
the country, Kentucky, giving lectures on the subject.
So I think we were all aware of those. Is that what
you're asking?
Q. Well, I'm asking if she ever voiced in a
committee meeting what she's summarizing here in her
e-mail to Ferland and the others.
A. Let me read it more carefully.
Q. Okay.
(Deponent reviews document.)
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ACTION COURT REPORTERS 196
A. All I can tell you is how I understood
this e-mail, which was that I thought she was reacting
to the statements made by the biologists, so I thought
that she was just reflecting on what the biologists had
said to me or to the committee via me about the website.
Q. And again, in your research of Gaskell's
background, both in writing and verbally, talking to his
former chair in Nebraska, there had been no concerns
voiced about him saying anything during an outreach
session that was of any concern to the University of
Nebraska. Right?
A. Not to my knowledge.
Q. By the way, during the deposition of one
of the biologists, I think, I guess it was Professor
Osborn, it might have been towards the end, he, I think,
indicated that the observatory director hired as a
result of this process has done no outreach with the
biology department since being hired. Is that what he
said? Or is that accurate?
A. I think he said that he has not interacted
with Tim Knauer at all since Tim Knauer was hired.
Q. And Tim Knauer is the observatory
director. Right?
A. That's correct.
Q. And one of the concerns that's been
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ACTION COURT REPORTERS 197
voiced, particularly by Ms. Shafer here, and perhaps by
others, is the friction that might arise between
Gaskell, had he been given the job, and the biologists
who have come out fairly strongly against him. Right?
I mean that's something that she voices.
A. Something I was concerned about, sure.
There was a potential for -- it seemed to me there was a
potential for conflict, that there was a conflict
between them ten years ago when he came to campus, and
it seemed like that it was reasonable to assume that
there might be conflicts in the future.
Q. In fact, there hasn't been any outreach
between the biology department and the observatory
director in two-plus years. Right?
A. That's partly true. In fact, Sally Shafer
works for both departments doing outreach, and she has
done outreach with both Tim Knauer and Jeff Osborn, but
apparently not together.
Q. So you say she works for both departments?
A. It's a little odd relationship. Most of
Sally Shafer's outreach is actually on physics and not
on biology, if I understand it correctly. She had
some -- I guess training in physics, but she works
closely with another faculty member in our department,
Joe Straley, who does outreach activities, and -- but
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ACTION COURT REPORTERS 198
the grant on which she works was funded through Jeff
Osborn, so it's a little bit of an odd relationship.
Q. So -- and was that the case back in 2007?
A. I believe so, yes. The grants come and
go, so I'm sure that --
Q. And when you say the grant on which she
works, is that -- that's how she gets paid?
A. She gets paid from research grants. She
doesn't have a permanent position at the university,
that's correct.
Q. And it's a research grant obtained through
Jeff Osborn?
A. She's had several grants, some with Jeff
Osborn and some with Joe Straley in the physics
department.
Q. Currently the one she's working under is
through Osborn?
A. I believe so.
MR. MANION: Let's move along here.
(Exhibit No. 40 marked.)
Q. No. 40. Exhibit 40 is an e-mail from you
to Tom Troland dated October 21, 2007 at 6:38, p.m., and
it's -- just if I can generally characterize it, it's
more of your response to Troland's -- the Gaskell
affair.
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ACTION COURT REPORTERS 199
A. Uh-huh.
Q. And --
MS. KRIZ: Yes?
THE WITNESS: I'm sorry?
MS. KRIZ: You have to say yes.
A. I'm just -- say that question again,
please. I'm sorry.
Q. That's pretty good. It's 3 o'clock --
A. I was reading it and --
Q. -- and that's the first time she's had to
tell you to say that.
MR. KRIZ: You're doing well.
Q. Generally I was just asking does this
appear to be a continuation of the discussion between
yourself and Troland about his response to what he saw
as the inevitable decision in favor of Knauer?
A. Yes.
Q. All right. And in this e-mail back to
Troland in the second paragraph, you say, "Even if this
is, as you suggest, entirely about his position on
evolution -- of course we're talking about Gaskell
here -- and then you say, "And I think that is only one
element. I don't see what makes it a case of
discrimination." You see where you say that?
A. Yes.
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ACTION COURT REPORTERS 200
Q. You would agree, then, that Gaskell's
position on evolution was one element in the decision
here. Right?
A. By that I was referring to the entire
debate generated by his website.
Q. That was one element in the decision?
A. Yes. The website certainly was considered
in the decision, yes.
Q. And then you go on to say, "For a
scientist to make public claims that evolution is not
only incomplete but flat-out wrong puts his credibility
as a scientist on the line. This is something Martin
did, not anyone at U.K."
My question is, and you've probably
partially answered this many times today, but I just
want to focus on your statement here. What's your basis
for saying that Martin Gaskell had ever publically
claimed that evolution was not only incomplete but
flat-out wrong?
A. I think that in Jim Krupa's e-mail and
also in Shelly Steiner's e-mail, they had indicated that
from their perspective as biologists and from their
interaction with him not only through the website but
also from his talk ten years ago, that it was their
opinion, their professional opinion as biologists, that
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ACTION COURT REPORTERS 201
he was saying things about evolution that were flat-out
wrong. That's what I understood. Okay?
As I've said all along, I was not -- I'm
not in a position to make a decision about whether
he's -- his statements in that document are accurate or
not. But the biologists certainly through their
responses were indicating to me that they felt that he
was flat-out wrong in some of the things he was saying
about evolution.
Q. So I'm just trying to narrow down what
your source of --
A. I'm referring entirely to the biologists
and to the claims the biologists were making about
Martin Gaskell's website, that's correct, yes.
(Exhibit No. 41 marked.)
MR. MANION: Could I see that?
(Document handed to counsel.)
Q. Showing you what we've marked Exhibit 41,
which is an e-mail from Tom Troland to the committee
dated October 23, 2007 at 5:55 p.m., and this appears to
be, does it not, Troland's summary of the action of the
committee that day, October 23rd, as well as a draft of
his report of the committee's actions?
A. Correct.
Q. The e-mail indicates that a vote was taken
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ACTION COURT REPORTERS 202
on the members present and the vote was four to one in
favor of Knauer -- four in favor of Knauer and one in
favor of Gaskell. Right?
A. Correct.
Q. He also indicates further that Nancy
Levenson apparently had sent an e-mail saying she would
have voted for Gaskell, and there's no indication there
of Ferland's opinion, but I think it's been testified to
and referred to in various e-mails. Correct?
A. Correct.
Q. The next paragraph indicates you told
Troland he should write a statement reflecting the sense
of the committee, its rationale, and that you would
forward that to the dean. Correct?
A. Correct.
Q. It says that you would -- it indicates to
me that you were going to do your own analysis to the
dean. Right?
A. Correct.
Q. Did you ever do that?
A. Yes.
Q. All right.
A. I forwarded the eventual letter that --
the eventual report that Tom Troland generated he sent
to me, and I forwarded that to the dean, and I included
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ACTION COURT REPORTERS 203
a statement of my own decision about director position.
(Off-the-record comments.)
(Exhibit No. 42 marked.)
Q. I'm showing you an exhibit that we've
marked Exhibit 42, and this indicates that it's from
James Krupa to you. In the body of the e-mail it looks
to me like what -- you were just describing your sort of
cover e-mail to the dean, forwarding Troland's report,
and giving your analysis of the search process. Is that
what it appears to you?
A. I don't understand this stuff on the top.
It's a mystery to me.
Q. You're anticipating my question. Do you
have any idea why Krupa is forwarding to you --
A. I have no recollection of that, and I
don't believe he ever did, so I don't know what that's
all about, but I do recognize the message below as the
message I sent to Assistant Dean John Pica about the
results of the search process, that's correct, yes.
Q. So you can't explain why it would have
been forwarded from Krupa to you?
A. I can't imagine that it was. I imagine
the files got messed up.
Q. And John Pica was who?
A. John is assistant dean of the college of
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ACTION COURT REPORTERS 204
Arts and Sciences, and he's the one who takes charge of
all staff hiring decisions within the college.
Q. The e-mail also indicates that you cc'd
Steve Hoch. Correct?
A. I'm sure I did, yes. It does indicate
that.
Q. It appears to me from this e-mail that you
felt the need -- correct me if I'm wrong -- to respond
to what Troland said in his dissenting view. Did you
feel that need to do that?
A. I'm sure I did.
Q. Why?
A. Well, the dean was aware that it was a
difficult issue, that there were difficult issues that
were raised in the search process. He was aware that
there was disagreements among the committee members, and
so I wanted him to know that this was not a unanimous
decision, that there was people with different points of
view on the committee, and I just thought he should
know. It's my responsibility as a chair to forward the
recommendation of the committee as well as make my own
recommendation to the dean. That's my responsibility.
Q. And the dean -- ultimately the job was
offered to Tim Knauer. Right?
A. Ultimately it was, yes.
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ACTION COURT REPORTERS 205
Q. And he accepted?
A. And ultimately he did, yes.
Q. And he's still in that position today.
Correct?
A. Yes.
MS. KRIZ: I need to get another pen.
Two pens today.
(Exhibit No. 43 marked.)
Q. Showing you an exhibit that we've marked
43, this is an e-mail from Mike Cavagnero to the members
of the committee, dated November 2, 2007, 9:44 a.m.,
subject: Director search hold. And this appears to be
an e-mail that you sent to the committee members telling
them that the U.K. Office of Equal Opportunity was
notified of potential irregularities in the department
recommendation for an observatory director. Is that
what it appears to be?
A. Correct.
Q. And you tell the committee that you met
with a representative of the EEO office and with Dean
Hoch the day before. Right?
A. That's correct. That was Patty Bender.
Q. How did this come about? How did you
become aware that the U.K. Office of Equal Opportunity,
et cetera?
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ACTION COURT REPORTERS 206
A. Well, I sent this e-mail to John Pica, the
one we just discussed, Item 42, and I soon after got
back permission to hire Timothy Knauer for the job, and
I think I conveyed that in words to various -- whoever I
saw on the committee. But then shortly after that,
maybe a few days after, or I guess by November 1st, I
got a call from Dean Hoch asking me to meet with him in
his office, or maybe it was an e-mail, I don't
remember -- either a call or an e-mail -- asking me to
meet in his office with him and Patty Bender.
Q. And did you meet?
A. And I met and we went, yes.
Q. All right. Tell me about that meeting.
A. I sat down and Patty and Steve were
already there when I got there, and Steve Hoch said to
me, Patty's received some very disturbing -- I don't
know if it was one or more than one reports about the
process of the search for the director position, and I
think Patty Bender then summarized her view. She
didn't -- she did not tell me the complaint. I never
saw the complaint. But she indicated that she -- that
it looked to her on the surface like we had hired
someone less qualified for the job, and then Steve Hoch
said to me, well, just -- I remember him saying, let's
hear it and it better be good, and that's what he said
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ACTION COURT REPORTERS 207
to me. So yeah.
Q. And so --
A. And so then I related to them all that I
could recollect about the entire process in probably
over an hour or more. I pretty much told them
everything that I could remember about the process.
Without any notes or the benefit of any kind of
information, I just recounted to them my recollections
of the whole process.
Q. I was going to ask you, were there any
documents there that you had brought with you to the
meeting?
A. I don't think so. I don't remember
bringing anything to the meeting.
Q. Do you know if either Hoch or Bender had
documents in front of them that they were using in the
course of this meeting?
A. Only the complaint if I -- only the
complaint, which I never saw, or at least I don't
remember ever seeing, no.
At the conclusion of the meeting Steve
Hoch said that I should forward to Patty Bender's office
all the correspondence that I had concerning the search
process, and I should do it immediately after I got back
to my office. And I did that. And then soon after that
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ACTION COURT REPORTERS 208
I got a message -- I think it was from John Pica but it
might have been from Dean Hoch -- saying that we're
going to put a halt on the hiring of Timothy Knauer
until the Equal Opportunity Office has completed its
investigation.
Q. Anything else you recall Dean Hoch saying
during that meeting?
A. I don't recall. I think that -- I think
that Patty Bender did most of the talking and most of
the questioning. She wanted to know what the basis was
for hiring Timothy Knauer or recommending Timothy Knauer
instead of Martin Gaskell. But all of this was news to
her. She didn't know the people, the characters, all
the committee members. She had really no knowledge of
it coming in to the meeting except for the particular
complaint that she had received. I don't know whether
at that time I knew the complaint was from Michael
Kovash or whether I learned that subsequently. I can't
remember.
Q. Is it your understanding now that the
complaint that she was responding to was from Michael
Kovash?
A. That's what I understand now, yes.
Q. At any time during this meeting -- this
was at the Dean's office. Right?
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ACTION COURT REPORTERS 209
A. Yes.
Q. Did he express any opinion of anything
about the hiring process, either the process itself or
the outcome?
A. No. In fact, I don't think that he ever
told me throughout the process how he felt about it. I
had been asking him on various occasions for advice
because it was a contentious process, it was a difficult
process. I remember complaining to him on a couple of
occasions that it was messy and difficult and people
were at loggerheads, but I don't remember him ever
voicing any opinion other than you do your job, let the
committee do their job, and I'll do my job. That's the
kind of advice Dean Hoch would normally give.
Q. You don't remember getting any different
advice in this particular situation?
A. No. No.
Q. Was Patty Bender taking notes?
A. Yes, I believe she was. Or at least I
think she was. I don't know if I can swear to that or
not, but I remember -- I remember her having documents
in front of her, and I think she was making notations of
some kind, but it was a long time ago, and I'm not sure
I can swear to that or not.
Q. I understand. Any indication that anybody
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ACTION COURT REPORTERS 210
was tape-recording this interview?
A. Not to my recollection.
Q. In any other way transcribing it?
A. Not to my recollection.
Q. And how long did this meeting take? How
long did it last?
A. It was a good, lengthy meeting. It took
me a long time to describe the whole process. It was
probably an hour or more. I don't remember.
Q. After that meeting -- was it during the
meeting that you were told to put the hiring process on
hold, or was it afterward?
A. No, it was afterwards.
Q. Oh, that's right.
A. I was told after the meeting, it might
have even been a day later, I don't remember. I was
told that we better put it on hold until after they made
their decision.
Q. And that's what prompted you to send the
e-mail that we've just marked Exhibit 43?
A. That's correct, yes.
Q. After you sent that e-mail did anybody on
the committee or anybody else in the department talk to
you about it or talk to you generally about what
happened with the process being put on hold?
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ACTION COURT REPORTERS 211
A. I don't recall anything specific. There
may have been -- there may have been. I don't know. I
think that I -- yeah. At that juncture there may have
been, you know, passing somebody in the hall type
conversations, but there was nothing substantive,
nothing that I can remember specifically.
Q. What happened next with reference to the
EEO office as you can recall?
A. I was sending e-mails to Patty Bender and
at some point she indicated that she had gotten the
e-mails. I don't recall -- I don't recall anything
else. I may have had a subsequent conversation with
her, but I don't remember that.
Q. Did you ever speak with her over the phone
about the issue?
A. I don't recall that. The next thing that
I remember was that we did eventually get authorization
to hire Timothy Knauer, that's the next thing I
remember. I don't think it was long after that. It may
have been a few days to a week, but I don't even
remember the amount of time it was. But that's the next
thing I remember is that we eventually got authorization
to hire, and I made the offer to Tim Knauer and he
accepted.
Q. Do you know whether he had already been
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told by anybody that he was the pick of the committee
prior to the hold being put on it?
A. I don't know.
Q. Was there anything -- any other meetings,
phone calls, conversations with Patty Bender other than
the initial meeting in Dean Hoch's office and what you
just referred to?
A. I remember some meetings with Patty Bender
which were -- again, walking across campus I would bump
in to her on occasion, and I would ask her -- this was I
think after we had already made the offer to Timothy
Knauer and he had accepted. I remember asking her what
happened to that complaint, and at some point she
explained to me that there was a process within the
state of how those things get processed. I don't
remember the details of that, but apparently if --
apparently she conveyed to me that there was a procedure
that Martin Gaskell could -- I'm sorry, that was
afterwards. I'm getting my times confused now. I don't
remember any particular conversations with her.
Q. So with reference to the EEO --
A. That's right. With reference to that
particular complaint, I don't recall any additional.
MS. KRIZ: And I guess you understand
that she responded to both an internal and the EEOC so
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ACTION COURT REPORTERS 213
that may have been --
THE WITNESS: I think I'm getting
those things confused.
Q. Right. There was a charge filed by Martin
Gaskell with the EEOC and the Kentucky version --
MS. KRIZ: Commission on Human Rights.
Q. I forget which one he did first. And you
were never -- or were you ever contacted in connection
with that procedure? That you know of.
A. The only thing that I remember is that a
long time later Martin Gaskell started sending me some
e-mails about -- well, first, I had forgotten to tell
him that we had already finished the search. And then
subsequent to that, he and I had several e-mail
exchanges where he was asking me for information about
the search process, and I was giving him what
information I felt I was at liberty to divulge, and so
it wasn't until there was some evidence of eventual
litigation that I talked to Patty Bender again, I guess,
and then I found out from her what the process was.
Q. Okay. When you say that you received some
subsequent e-mails from Gaskell, other than e-mails did
you ever have any conversations with him, I guess, after
the on-campus interview?
A. I don't remember if he ever called me on
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ACTION COURT REPORTERS 214
the phone. He was certainly interested in -- he was
concerned about the questions I had asked him in our on-
campus interview. He was concerned about one of the
questions in the phone interview. He wanted to ask me
questions about that.
Q. What question in the phone interview was
he concerned about?
A. This generic question that I ask to all
candidates. We had talked about it earlier today.
Q. The one the dean suggested was a good
question: Is there anything you'd like to tell me about
yourself?
A. He seemed to think I was fishing for
something on that particular question, and so I think he
was concerned about that. And he had concerns about the
whole process and so he sent me some e-mails about that
and I responded as best I could. And there were several
of them back and forth, and at one point I think he also
sent e-mails to the people in the biology department,
and I heard about that, and so there was those kinds of
correspondence.
Q. But I guess my actual question was, have
you ever had any conversations with him after the on-
campus interview?
A. During the time of that e-mail
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ACTION COURT REPORTERS 215
conversations, I don't remember if he phoned me or not.
Q. When you say at that time, are you talking
about after the decision had been made?
A. After the decision had been made. It's
possible we talked on the phone once, but I don't
recall.
Q. Okay. And that would have been, I guess,
approximately in January of '08?
A. That's correct.
Q. How about since then? Have you ever had
any conversations with him of any kind?
A. Only at his deposition.
Q. At his deposition here.
How about any e-mail correspondence or
other form of correspondence?
A. Except for those in January of '08, no.
Q. Okay.
MR. MANION: Let's take a break.
(3:30 BREAK 3:40.)
MR. MANION: I have no further
questions.
MS. KRIZ: I just have one thing to
cover.
-----------
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ACTION COURT REPORTERS 216
EXAMINATION
BY MS. KRIZ:
Q. Dr. Cavagnero, do you recall after the
decision or -- you were granted approval to make the
offer to Knauer, that there was a -- one of those
council meetings with the faculty and staff within the
Department of Physics and Astronomy?
A. With the council, which is a set of six
faculty members, that's right.
Q. And do you recall Michael Kovash asking
you any questions about the observatory director search
process?
A. I recall that I conveyed to the committee
the decision and that I -- I think I -- at that time I
had already made the offer and he had accepted the
offer. I believe that that's true. I'm not sure about
whether the offer had been accepted or not at that
meeting, but he -- Mike Kovash clearly did not like the
decision. He was maybe -- it was just bad body language
or something, I don't know, but he clearly gave me the
impression he wasn't happy with the decision, and he
asked for some summary of the reasons for the decision,
and I gave the best summary I could give. I don't
remember it. I don't remember what I said. I gave a
summary of what was in the letter that Tom Troland wrote
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ACTION COURT REPORTERS 217
to me and the letter that I wrote to the dean about the
decision of the committee in the hiring process. I
basically summarized those two letters to the committee,
but I don't remember any specifics about that.
Q. Did you have any one-on-one conversations
with Kovash about that issue?
A. He was clearly upset at the meeting, and I
remember -- I think that I went to his office shortly
thereafter to have a chance to talk to him about why he
was upset about that, and we had a very short
conversation in which he clearly thought that I was
either not being honest or was somehow spinning the
decision in a favorable light or something of that kind.
So he basically indicated to me that he didn't want to
talk to me about it anymore, and that was it. So it was
a brief conversation in his office.
Q. And what was your knowledge of Mike
Kovash's involvement in the entire search process?
A. He wasn't on the committee so he had kind
of a peripheral process. He was the Director of
Undergraduate Studies, and one of the desires of all of
us was that this director would interact with
undergraduate students, so I thought it was appropriate
to ask him to participate in the interview processes on
campus. I think he took -- I think he interviewed with
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ACTION COURT REPORTERS 218
Martin Gaskell one-on-one. I think he went to lunch
with Tim Knauer and I, if I remember right, and I think
that he was unavailable or out of town for the third
candidate. So he took part in two of the three
interviews on campus, and he sent a report about his
views of those two candidates to me, which I forwarded
to the committee members.
Q. Do you recall ever including Mike Kovash
in any of the e-mails that were sent to the advisory
committee members?
A. No. I would not have done that, no.
Q. And did you ever see an e-mail to the
effect that any of the other advisory committee members
had included him on any of the e-mails about the
process?
A. Not to my knowledge. I thought that he
was getting his information from occasional questions.
He asked me about how the search is going or this or
that, and plus that one altercation, if you want to call
it that, at the council meeting and subsequent
discussion in his office, that I had no knowledge of any
other -- I don't know how else he got his information
about the search and what was going on.
Q. When he questioned you indicating he felt
that your response to his inquiries was a way of
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ACTION COURT REPORTERS 219
spinning or inadequate, did you ask him what the source
of his information was, that there was a problem with
the process?
A. He indicated to me I think in the
subsequent discussion in his office that he thought that
Martin Gaskell's religious beliefs were involved. And I
tried very briefly to say it wasn't about that, it was
about statements he had made about biology and
evolution, and Mike indicated that none of that should
have been relevant to the process. It's all irrelevant.
And as I say, it was a very short conversation, and he
did not want to discuss it with me at some point, and
that became clear, so I just left.
Q. To your knowledge did Mike Kovash have
any -- what you observed of him or what you communicated
to him, did he have any personal knowledge about the
process and what was considered by the committee members
in making their ultimate decision?
A. No. I felt that his comments both in the
council meeting and the subsequent discussion in his
office were off base. I thought that he was jumping to
conclusions without any knowledge of the process. I
tried to say that to him and he just wasn't listening,
so that was it.
MS. KRIZ: That's all.
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ACTION COURT REPORTERS 220
MR. MANION: This always happens when
your attorney asks you questions.
THE WITNESS: Yes.
--------------
RE-EXAMINATION
BY MR. MANION:
Q. You were here for Kovash's deposition.
Right?
A. Correct.
Q. And you heard him testify that he was
speaking on approximately a weekly basis with the chair
of the search committee regarding what the search
committee was discussing in its meetings. Correct?
A. Correct. That's the first I knew of it at
that deposition.
Q. Do you have any reason to believe that he
was not, in fact, doing that?
A. No.
MR. MANION: That's all I have. That
is it.
(DEPOSITION CONCLUDED 3:46.)
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ACTION COURT REPORTERS 221
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 7th day of April,
2010.
_______________________________ANN HUTCHISON, RPRRegistered Professional ReporterNotary Public, State-at-Large
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