DEPOSITION OF MICHAEL KOVASH, Ph.D. · 2010-12-06 · 2 Series of e-mails 14 3 Dr. Kovash's handwritten notes 46 (Above-referenced exhibits accompany original and copy transcripts.)

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UNITED STATES DISTRICT COURTEASTERN DISTRICT OF KENTUCKY

LEXINGTON DIVISIONCIVIL ACTION NO. 5:09-CV-00244-KSF

______________________________________________________

DEPOSITION OF MICHAEL KOVASH, Ph.D.

______________________________________________________

C. MARTIN GASKELL PLAINTIFF

v.

UNIVERSITY OF KENTUCKY DEFENDANT______________________________________________________

The deposition of MICHAEL KOVASH, Ph.D., was

taken on behalf of the plaintiff before Ann Hutchison,

Registered Professional Reporter and Notary Public in

and for the Commonwealth of Kentucky at Large, at the

law office of Baker, Kriz, Jenkins, Prewitt & Jones,

PSC, 200 West Vine Street, Suite 710, Lexington,

Kentucky, on Tuesday, March 23, 2010, beginning at the

hour of 11:04 a.m. The deposition was taken by notice

and shall be used for any and all purposes allowed by

the Federal Rules of Civil Procedure, including use at

trial.

______________________________________________________

ACTION COURT REPORTERS184 North Mill Street

Lexington, Kentucky 40507(859) 252-4004

Case: 5:09-cv-00244-KSF-REW Doc #: 23 Filed: 09/28/10 Page: 1 of 62 - Page ID#: 418

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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

ALSO PRESENT:

Dr. Michael Cavagnero


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INDEX

DEPONENT: MICHAEL KOVASH, Ph.D. PAGE

EXAMINATION BY:Mr. Manion .................................. 4Ms. Kriz .................................... 50Mr. Manion .................................. 58

REPORTER'S CERTIFICATE ........................... 62

EXHIBITS

NO. DESCRIPTION IDENTIFIED

1 10/15/07 e-mail from Michael Kovash to 10Tom Troland, Michael Kovash, andMike Cavagnero

2 Series of e-mails 14

3 Dr. Kovash's handwritten notes 46

(Above-referenced exhibits accompany original and copy

transcripts.)


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MICHAEL KOVASH

having been first duly placed under oath, was examined

and testified as follows:

EXAMINATION

BY MR. MANION:

Q. And for the record, you are Michael

Kovash?

A. Michael Kovash.

Q. Spell that last name for the reporter.

A. K-o-v-a-s-h.

Q. All right. Professor Kovash, my name is

Frank Manion. I am one of the lawyers for Martin

Gaskell in a lawsuit that's pending here in federal

court in Lexington concerning generally the hiring

process for the observatory director at the university

back in 2007.

Have you ever been to a deposition before?

A. I have been to a deposition before.

Q. Okay. We always ask people that, and no

matter what the answer is we proceed to tell them what a

deposition is all about. I don't know why we do that,

but we do.

I'm going to ask you a series of questions

about your knowledge, to whatever extent you have it,

concerning this hiring process and other matters that


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should be relevant. You're expected to give truthful

answers to the best of your recollection. Your

testimony is given under oath. The oath that you've

taken here is the same one that you would take if you

were testifying here in federal court, so that your

testimony is just as important and just as legally

binding as if we were in court. You understand that?

A. I do.

Q. Okay. All of my questions and all of your

answers and anything counsel for the university may say

are being taken down by the court reporter seated at the

end of the table. She will prepare a written transcript

of this proceeding at the conclusion. Anybody coming

along later and reading that transcript will be entitled

to assume that if you answered a question, you

understood it. So the time to tell me you don't

understand a question is before you answer it.

A. Certainly.

Q. Okay. And obviously if you have any

concerns about what I'm getting at, feel free to ask me

and I will try to rephrase the question or maybe ask a

different question. You understand that?

A. Uh-huh.

MS. KRIZ: And don't uh-huh.

THE WITNESS: I'm sorry. As I did


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that I realized.

MS. KRIZ: You knew I was going to

nudge you.

Q. One of the instructions is you have to

answer verbally, although if we were having a

conversation we would uh-huh --

A. Certainly.

Q. -- gesture and stuff. We can't do that

here.

A. Uh-huh.

Q. The other thing is, you have to let me

finish my question. As tedious as the question may be

and as sure you are that you know where I'm going, for

purposes of the transcript we have to wait till each

other are finished. Is that understood?

A. Yes.

Q. Okay. And every witness violates that

one.

What is your current position, occupation?

A. I'm a professor of physics in the

Department of Physics at U.K.

Q. And how long have you had that position?

A. Well, I've been on the faculty since 1983.

Q. What's your academic background generally?

A. Well, I was trained as a Ph.D. in nuclear


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physics. I did a postdoc after I was trained, and then

I came here from a postdoc.

Q. In preparation for today's deposition, did

you review any documents or any writings of any kind?

A. Nothing that I myself had not prepared

previously; for example, e-mail messages.

Q. Okay. Anything other than e-mails that

you had prepared or received?

A. No.

Q. At some point in this, since you became

aware of a lawsuit being filed, were you asked by

Ms. Kriz's office to produce e-mails that you may have?

A. Yes.

Q. And did you do that?

A. I did.

Q. Did you withhold any for any reason?

A. Not knowingly, no.

Q. Okay.

MS. KRIZ: For the record, I think

there was an initial request from the internal general

counsel's office, and I -- subsequently. So I think

there may have been a couple of different requests.

Q. All right. Prior to today's deposition

did you speak with anyone about the deposition?

MS. KRIZ: Other than me.


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A. No. No one.

Q. You didn't speak to any other faculty

members at U.K.?

A. No.

Q. And, of course, you did speak with counsel

for the university?

A. I did.

Q. As you're probably aware -- I'm sure

you're aware -- this involves the observatory director

hiring process back in 2007. Were you part of the

search committee or the advisory committee in that

process?

A. No.

Q. To what extent, if any, were you involved

in that process?

A. At the time, and I'm not now, but at the

time I was Director of Undergraduate Studies in our

department, and as part of my role I served on what is

called a department council committee, and I also

interviewed the finalist candidates for that position,

and I was asked to submit an evaluation of the

candidates for that position. So that was my semi-

official role in the selection process.

Q. As I understand it, you did not have a

vote on the committee?


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A. That's correct. I was not actually a

member of the selection committee.

Q. Did you participate in any meetings of the

committee as such?

A. Not that I -- no, I don't believe so.

Q. Other than the interview that you did I

believe of Professor Gaskell and Timothy Knauer --

A. Yes.

Q. -- were those the two finalists you

referred to?

A. Yes.

Q. Did you meet with anybody else involved in

the hiring process for that position?

A. I met frequently with the chairman of that

committee, yes.

Q. And that would have been?

A. Tom Troland.

Q. Okay. And what was the nature of those

meetings?

A. Mostly they were simply casual

conservations because I was very interested in how we

were going to fill that position because I found it to

be an important element in our department, and so I was

interested in what the committee was doing, and Tom, as

chairman of the committee, my office was conveniently


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located on the first floor near the main office, and as

he walked by, roughly once a week he would stop in and

we would have a 10- or 15-minute conversation during the

selection process, that's right.

Q. Again, this is to the best of your

recollection, but how many such conversations do you

suppose you and Tom had during that period?

A. Maybe a half a dozen.

Q. I'm going to show you a document which the

court reporter is going to mark, and I'll ask you some

questions about it.

(Exhibit No. 1 marked.)

Q. For the record I'm showing you what

appears to be an e-mail from Michael Kovash to Tom

Troland --

A. Uh-huh.

Q. -- copy yourself and Mike Cavagnero, and

the subject is Observations on the Director, and the

e-mail is dated October 15, 2007, 10:31 a.m. Is this a

copy of the written evaluation that you referred to

previously?

A. It is. That's right.

Q. So you interviewed both Professor Gaskell

and Tim Knauer?

A. Actually, to be perfectly explicit, I sat


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in my office with Professor Gaskell for either 30 or 35

minutes for an interview. Tim Knauer I knew very well.

He was actually a student of mine for a while when he

was a graduate student, and so I don't think that he and

I sat for an interview per se. We did have lunch

together during his interview period, and during the

lunch I did have an opportunity to ask him questions

related to -- well, related to picking an observatory

director. So yes to Gaskell in my office, yes to Tim

Knauer during a lunch, a public lunch.

Q. Okay. And this e-mail which we've marked

Exhibit 1 indicates, does it not, the kinds of questions

you were trying to get answers to and the kinds of

qualities you were looking for in a potential

observatory director. Right?

A. Yes. Well, again, as Director of

Undergraduate Studies, I had in my mind sort of a list

of characteristics that I felt were very important that

the observatory director should satisfy, and that's what

I reflected here in this evaluation letter.

Q. Okay. Prior to interviewing Professor

Gaskell had you ever met him before?

A. Not knowingly. As I understand, he had

been in the department some years previous, but I had no

opportunity to either talk with him or -- I guess he


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gave a public talk, and I was not part of that public

talk, no.

Q. You say in the beginning of the third

paragraph of this e-mail, "On all of these counts, I

felt that Martin had a significant edge over Tim."

Right?

A. Yes, I did.

Q. Was that the conclusion you drew after

speaking with both men?

A. It was.

Q. And I mean prior to this you had been

familiar with Tim -- is it Knauer? Is that how he says

it?

A. Well, maybe that's how I say it.

Q. We haven't been saying it that way, and no

one has corrected me yet.

MS. KRIZ: We hear the K silent. I

think Dr. Kovash does reference Knauer, so I'm not sure

which is the correct.

Q. My question is simply, however he

pronounces his last name, you knew him previously both

as a student and as a colleague?

A. Well, in fact, he was a student. He spent

a summer as a graduate student working with me. He and

I went to Japan together working on an experiment, so we


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were side by side for a summer. He then had been hired

by the department -- after he finished his master's

degree had been hired by the department to work in our

demonstration setup area, and it was while he was there

that I also worked with him. As a lecturer you work

with the person who occupies that position. So I felt I

knew him relatively well, and then during this lunch

period I had at the opportunity to ask him questions

which were specifically related to his ideas for his

role as an observatory director.

Q. Okay. Did you have any personal animus

towards Tim Knauer at any point?

A. No. I paid his salary. I liked him very

much.

Q. Okay. Other than meeting with Martin

Gaskell and interviewing him --

A. I liked him very much personally.

Q. I understand, yes. Other than this

meeting with Martin Gaskell, did you review any

background materials about Gaskell, things that he had

written or things about him prior to writing this

language?

A. Only perhaps his resume, and actually I

don't remember that I did or did not read his resume.

It would be typical that I would have had an opportunity


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to read a resume for an applicant that I was going to

interview. I don't remember in this case that I did or

not.

Q. Okay.

MR. MANION: Off the record.

(Off-the-record discussion.)


Q. We've marked this Exhibit 2 for the Kovash

deposition, and it appears, to me at least, to be a

series of e-mails and responses to e-mails, some of

which you sent or received. I'm not entirely certain

what the order is, but it might help us if we go by the

date.

(Deponent reviews document.)

Q. Having reviewed this exhibit myself, it

appears to me to generally involve contact between

yourself and the U.K. EEO office.

A. EEO?

Q. Equal Employment Opportunity.

A. Okay.

Q. Does that ring a bell?

A. We're talking about Patty Bender's office;

is that right?

Q. Yes.

A. Okay. All right.


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MR. MANION: Am I getting that right?

MS. KRIZ: Well, the office has been

known as the Office of Institutional Equity, the EEO

office. It's gone by various labels but, you know, I'm

not sure.

MR. MANION: What was it in 2007?

MS. KRIZ: What it specifically --

MR. MANION: Patty -- we'll call it

Patty Bender's office.

MS. KRIZ: Okay.

Q. All right. You had contact with Patty

Bender regarding the hiring for the observatory director

position. Correct?

A. I did.

Q. And did you initiate that contact?

A. I did.

Q. And how did you do that?

A. I called her.

Q. When?

A. Well, I called her after -- okay, now,

you've triggered the response here.

Q. Okay.

A. I felt concerned that the process was not

proceeding in a way that I felt would -- was necessarily

fair and equitable to Mr. Gaskell.


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Q. Why did you think that?

A. I had a lot of reasons. And actually I

wrote them down. So is it okay if I refer to notes?

Q. It's okay by me.

MS. KRIZ: Whatever you want to do.

Whatever helps you address the question.

A. Okay. So actually I have a number of

points --

Q. Okay.

A. -- on that exact --

Q. Can we get those marked? Are these notes

that you prepared to --

A. These are notes that I prepared so that I

would remember the issues that triggered my response, my

question actually to Patty Bender.

Q. And when did you prepare the notes?

A. This morning at 4:30.

Q. And how many pages of notes?

A. It's three pages of notes, but again,

these are sort of my notes to myself. They aren't

intended to be complete sentences or make much sense to

anybody else, but I'm happy to go through this. This is

the answer to your question.

Q. Okay. Then that's what I want.

MS. KRIZ: Go ahead. You can testify


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and then after you testify if they want copies, we can

make copies.

A. Okay. So you asked for the -- what

triggered in my mind --

Q. Right.

A. -- my phone call to Patty Bender.

Q. Right.

A. And so the first point was that -- and

it's a cumulation of things. There is no one trigger

point, but there's a cumulation. Early in the search I

met with Mike Cavagnero, and he reported to me at the

time that we had an excellent experienced applicant for

the job. He didn't tell me who he was. He said he was

from the midwest and he had previous experience running

an observatory, and that more than that, he had

experience working with undergraduates. This is

something that I was particularly interested in because

again, I consider that one of the primary roles that the

observatory director would fill is to -- is it support

undergraduate research. So I was -- Mike at the time

was very excited, unusually so I thought, when he told

this to me. So that's the first point.

Q. Okay.

A. Second point is that I did have these

roughly weekly meetings with the chair of the search


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committee where they were just -- you know, drop in to

my office to discuss the progress that the committee was

making and to discuss, in fact, specific candidates and

to discuss specific committee members points about

specific candidates.

Q. Okay.

A. And Tom at the time and I discussed early

on the fact that Martin had a relatively literal, and,

in fact, biblical version of his own belief in human

evolution. That was the very early part of our

discussion.

Q. And that came from Professor Troland?

A. That came from our discussions in my

office with Professor Troland.

Q. And did you know anything about --

A. I knew --

Q. Let me ask the question for the record.

Did you know anything about Gaskell's

views, alleged views on evolution?

A. No, I did not.

Q. Okay. By the way, just so it's clear, the

first point that you made was about a conversation with

Mike Cavagnero in which he was excited about an

applicant. Do you believe that was Martin Gaskell?

A. I assumed that it was, but he didn't name


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the applicant for me.

Q. All right. So you were talking about

conversations with Tom Troland when the issue of

Gaskell's beliefs, whatever they may have been about

evolution, came up.

A. Exactly. And so that was the first point

in our discussion was that -- his belief in a relatively

biblical, literal biblical version of human evolution.

And more than that, in our discussions Tom made it clear

that Martin made these beliefs public in various forums

after teaching a class in astronomy, for example, or on

a website or perhaps in other ways that I don't know

about, but that in Tom's estimation he distinguished his

own personal beliefs quite clearly from his scientific

beliefs, and that more than that there was no clash

between his scientific view of the evolution of the

galaxy or even of the planet earth versus -- there was

no clash between that and his own views on human

evolution. So it was public, but he distinguished

between the scientific fact from his own personal

beliefs. So this came out early in our discussions.

Q. Did you ever get a sense from Tom where

and when Gaskell had made these views known?

A. Well, you know, I'm limited in how I can

answer these questions because for one thing, you know,


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I didn't talk with Gaskell about these issues. I didn't

go to any websites to look up. I didn't review any

papers that Gaskell had produced. This was not

something that was talked about in the hallways or in a

public sort of way that I knew about, so it was

basically these conversations that Tom and I had where I

learned anything that I learned. I was not part of

Gaskell's public discussion five years previous to that

or whenever it happened to be.

Q. So if you -- continue in answering the

question.

A. So Tom had summarized in our discussions

the committee's discussion of Martin and relayed some

specific comments of committee members and again --

Q. Can you tell me what specific comments he

relayed?

A. Well, one committee member was Sally

Shafer, and Tom at the time relayed to me that she had

said that if Gaskell were hired she would lose her

credibility working with school teachers. It would

affect her credibility. And I personally know that this

is a very reasonable attribution to her. I know she's a

nonbeliever, and I know she has no role for religion in

her life. So that was one point that he made.

He said that during the deliberation Steve


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Ellis raised the point that we couldn't hire Gaskell

because Steve couldn't be his supervisor because Gaskell

was a Ph.D. and Ellis was not. This is a very specious

statement in my estimate.

Q. Why?

A. Because at this point it sounds -- I mean

this is -- yes, this is a university community where we

have people of all different varieties who work together

and for a common goal, and I don't know why someone

would say that we couldn't hire a particular well-

qualified candidate simply because they had a higher

degree than I have if I'm their supervisor. So this has

alerted me. This is one of the things that alerted me

to something.

Q. You thought that was specious, as you

described?

A. I believe so.

Q. Okay. And I think you've just explained

why you thought that. Okay.

A. Tom, as I said a minute ago, was satisfied

that Gaskell had separated his personal from his

scientific beliefs and that was effective in teaching

classes to students and keeping separate from that his

own personal beliefs.

There is Tom's e-mail, which is part of


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this pack to me where Tom very explicitly uses the word

"liar" to say that anyone who didn't believe that

Gaskell's personal religious beliefs were not part of

the committee's deliberations is a liar.

Q. If you'll refer to Exhibit 2, I think it's

on the first page, the line you're referring to, there's

an e-mail from Thomas Troland to you --

A. Yes.

Q. -- November 15th --

A. The end of the first paragraph. Yeah.

Q. -- at 13:36?

A. So that statement, While others were

sometimes given -- other reasons were sometimes given

for this recommendation, Gaskell is not a good

listener -- an impression I did not form myself -- any

committee member who denies the importance of the

evolution issue in the decision is, to be blunt, lying.

So this is a trigger.

Q. In your mind in listening to what Tom

Troland was telling you, discussing this with him, did

you think that when people were talking about Gaskell's

beliefs on evolution they were connected somehow to his

religious beliefs?

A. Well, going back to the original

statement, which is that Gaskell's beliefs on human


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evolution were tied to a literal interpretation, literal

biblical interpretation, yes. And it seemed that again

because he could talk about the planet earth and its

evolution over a period of three billion years distinct

from the evolution -- his personal beliefs on human

evolution, that he separated those two and that, in

fact, yes, biblical version played a role.

Q. Either from your notes or from your

recollection, and I don't want to interrupt you too

much, any other comments that were relayed to you by

members of the committee that triggered your ultimately

going to Patty Bender?

A. No other members of the committee. It was

only through Tom that I -- well, okay. That's not quite

true, no. We're going to get to that actually.

Q. All right.

A. That's next.

Q. All right.

A. But before that, I do want to finish this

last issue of discussions with Tom. Tom relayed to me

the biologists' concern related to Gaskell. It was

relatively vague. I didn't know specifically what they

were concerned about other than perhaps this sort of

general statement of losing credibility we've already

heard.


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Q. Right.

A. And that was the general tone of that

particular discussion.

Q. Okay.

A. I didn't see any correspondence to the

committee from the biologists or anything like that.

Q. Okay. I think you may have already

answered this. Did you ever review anything Gaskell may

have written that touches upon the theory of evolution?

A. No.

Q. And you weren't at the famous lecture at

Memorial Hall?

A. I was not at the lecture.

MS. KRIZ: I guess we'll say famous in

terms of this case. I'm not sure I agree with famous in

terms of its general...

Q. All right. You referenced Sally Shafer's

comments and Steve Ellis's comments. Anything else in

your notes or in your recollection regarding any

comments specifically attributable to any member of the

committee?

A. Not that I can recall today.

Q. How about people who were not members of

the committee but were members of the department?

A. Not directly. I didn't have direct


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discussions with other members of the department related

to Gaskell's hiring.

Q. Have you at any time throughout this

process or up till today spoken to either Dean Hoch or

Provost Subbaswamy about the Gaskell/Knauer hiring

issue?

A. Not directly, no.

Q. You were reading from your notes, and I'm

sorry to interrupt you about that, but I'd like you to

continue reading from them if they're responsive to my

original question, which is what triggered you --

A. Yes.

Q. -- going to Patty Bender.

A. Yes. The final straw, I guess, and, in

fact, I think it occurred on the same day that I called

Patty Bender, was we have a so-called department

council, where the Director of Graduate Studies,

Undergraduate Studies and various representatives from

the research groups in the department meet with the

department chair, and this is a semi-regular meeting

with the department chair, and various issues affecting

the department are raised and discussed, and it was at

one of these meetings that I asked the department chair

sitting here, Mike Cavagnero, if he could give us an

update on the hiring process for the observatory because


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by this time I had heard an earful from Tom, and I just

wanted to hear the record straight. And this I found --

I found it disappointing. I was disappointed, and I

felt that, you know, as scientists when we interact even

on a personal level, which is what a search committee is

basically, it's people interacting personally, you ask

someone a question and you -- as scientists we sort of

lay out the point-by-point answers to this. These are

the top candidates, these are the strong points for the

top candidates, these are the particular weaknesses of

the strong candidates. And this is what I was expecting

and this is what I did not get. And unfortunately, this

is a couple of years ago, I don't remember specifically

what was said other than it seemed like the answer that

I got to the question was relatively evasive. And I

didn't hear with clarity what were the strong points and

the weak points of the candidates and how the committee

was proceeding in its deliberations and how they had

come to any conclusions that they had formed, and this

seemed to me to be an appropriate forum at this

department council meeting to ask the question and to

get a straightforward answer to it, and I didn't get

that.

Q. And what did you do after that?

A. I went back to my office and I stewed


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about it and I decided -- I think it was on that

particular day, that it was time to -- I wanted to get

someone other than me and other than Tom and maybe other

than committee members to review this process and to say

that it wasn't tainted by Gaskell's personal beliefs on

human evolution.

Q. So at that point you had reached a

conclusion, or at least a suspicion, I guess, that in

fact the process was tainted by Gaskell's personal

beliefs on human evolution?

A. I can't reach any conclusions because I

don't have any -- you know, I'm very limited in what I

know personally. It's through these discussions, it's

through my observations of other people and their

discussions.

Q. But you had at least become suspicious?

Let's put it that way.

A. I had certainly become suspicious and

that's -- and one other point I wrote down here, because

I had interviewed Gaskell, and I had agreed that he was

indeed an excellent candidate, if that was, in fact,

what Mike was referring to when he first announced the

mystery candidate.

Q. Right.

A. And I found it very attractive that he had


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obtained I guess NASA support to hire undergraduates and

to get them involved with research with the telescope.

I thought it was a very, very strong point. It was

something that I had talked with Tim Knauer about and

didn't get a satisfactory response to. And since I felt

this was an important element for the observatory

director, it was something that -- the fact that, you

know, if Gaskell was being superseded by another

candidate, it wasn't clear to me why based on the

scientific story.

Q. Okay. But based on your conversations

with Tom Troland about what committee members were

saying regarding Gaskell's personal beliefs about

evolution --

A. I was suspicious.

Q. Okay. And so that day, after the

departmental council meeting where you didn't get an

answer, you didn't think you got a straightforward

answer --

A. That's right.

Q. -- what step did you take?

A. I called her and I asked her --

Q. Her being Patty Bender?

A. Patty Bender. I called Patty Bender, and

only because I had seen in some earlier student


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newspaper, there was a story about her office and what

it did, and it sort of stuck in my mind so that I knew

who to call, and I called her and I -- we had a very

short telephone conversation. It was just three or

four minutes. I explained who I was and what my

concerns were. And there was nothing done in writing, I

simply said that I'm concerned that his civil rights may

be violated by the process. Now, in the -- but I

said -- at the time, I did not say his civil rights are

being violated. I said I'm concerned that they may be

violated.

Q. Why did you think at that point that they

may have been violated?

A. For all the reasons that I've just listed

here, all the points, the trigger points that -- as I

saw it.

Q. That in your estimation he was better

qualified for the position than Tim, and issues, in your

opinion, having nothing to do with his suitability for

the position had been taken into consideration?

A. It appeared that way to me.

Q. Let's take a look at this Exhibit 2.

Again, I apologize for having some difficulty in

figuring out which comes first here, but if you turn to

what is labeled page 11, second to the last page,


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beginning at the bottom of that, does it appear to you,

as it does to me, that beginning at the bottom of that

page there's an e-mail from Tom Troland to Patty

Bender --

A. Uh-huh.

Q. -- dated November 19th at 18:38, and that

continues on to the next page. Correct?

A. Yes.

Q. Prior to that, or above that e-mail on

page 11, there's an e-mail that appears to be from you

to Patty Bender dated November 5, 2007 at 5:08 a.m. Is

that --

A. Well, actually I was in Sweden at the

time, so that's why the time is funny.

Q. Okay. Do you think that that's the first

e-mail you sent to her on this if you take a look at it?

A. I don't know, because I know that at some

point I had written her a letter. She had sent me a

note, and I felt from her note that she had confused my

original request, and that she thought that I was

unhappy -- in fact, this was part of our phone

conversation that first time we talked, that she thought

I was unhappy with the person they were hiring, just

based on the fact that I liked my candidate better and

that they didn't -- she said, oh, this happens all the


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time, you know. And so I do remember sending her a note

in which I said no, what I'm really interested in here

is making sure this man's civil rights have not been

violated. And so somewhere -- and that may have

predated -- I think that did predate this particular

message.

Q. See, there's an e-mail on page 8 of this

exhibit from you, Michael Kovash, to Patty Bender,

November 15, 2007, 9:08 a.m. --

A. Yeah.

Q. -- and I know from my review of this, and

you can correct me if I'm wrong, that in this you talk

about favored candidate, the civil liberty of each

candidate.

A. That's the message I was thinking of.

Now, that's November 15th.

Q. Right.

A. So that came after this November 5th

message. Okay. Yes.

Q. Okay. And in that e-mail, which let's

stay on page 8 --

A. Okay.

Q. -- you -- I guess Bender had insinuated

that your complaint was that Gaskell was your favorite

candidate and you were just sort of sour grapes?


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MS. KRIZ: Let me object to the form.

I don't think you can say what Patty Bender insinuated.

MR. MANION: All right.

MS. KRIZ: You can ask him what he

inferred from her statements.

MR. MANION: Okay. That's fair

enough. I'll withdraw that question.

Q. In this e-mail you talk about how you like

Tim Knauer personally and very much want to see him

succeed in life. Correct?

A. Yes.

Q. And you point out that your knowledge of

Gaskell was from your meeting with him?

A. Yes.

Q. It was limited to that. And then you say

that your favored candidate, and you put it in quotes,

because that's the term she used --

A. Yes.

Q. -- is the civil liberty of each candidate.

Right?

A. That's what I said.

Q. Okay.

A. Just to make this distinction for her

quite clear, that's the reason I was making this point

was so that it was clear to her that I was not here as


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sour grapes, wrong guy got the job kind of thing.

Q. Right. You go on to say in this e-mail:

I believe that the university administration is engaged

in a campaign of spin control so as to prevent him from

becoming the observatory director. What did you mean by

that?

A. Well, okay. That goes back to this -- and

I think I may have overstated that there. A professor,

I try to be reserved in things. I think I may have

overstepped it there. But it goes back to this council

meeting when I didn't feel I was getting straight

answers to straight questions.

Q. You also say in the next sentence:

Although I wasn't personally on the selection committee,

I've talked to its chair at length and to the chair of

our department.

The chair of the search or selection

committee was Troland. Right?

A. That's correct.

Q. And the chair of the department was

Cavagnero?

A. That's right.

Q. And you say these discussions were the

basis for my opinions. Correct?

A. Yes.


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Q. So it's not just your conversations with

Troland, it was also your conversations with Mike

Cavagnero?

A. Yes.

Q. And at the conclusion of this e-mail you

ask her to review the case, possibly seek legal advice

and then make a recommendation. Right?

A. That's what I did.

Q. Did you get a response from Patty Bender's

office to that request?

A. Well, in a way I did.

Q. What was it?

A. Buried in a message that I received from

her, which is probably in this packet, she did make the

statement in the middle of a paragraph that we have

reviewed this and we don't find any -- basically we

don't find any problems.

Q. Okay.

A. But that came after a job offer had

already been made to Tim Knauer if you look at the

dates.

Q. Okay.

A. So that's another item on my list of

triggers. Although it certainly didn't trigger my call

to Patty originally, it forms part of my continuing


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concern that there was an effort here at subterfuge,

subversion, whatever so that -- why not finish the job

of reviewing whether the process had been fair to all

the candidates before you make a job offer. Seems to me

the reason you would make a job offer before you had

finished the review process would be if you wanted to

get it set in stone before -- right?

Q. So it was your understanding that although

you had raised the issue of the fairness of the process

before that with Patty Bender --

A. Yes.

Q. -- and were told essentially that they

would investigate your concern --

A. Yes.

Q. -- before that investigation was even

concluded, an offer had already been made to Tim Knauer?

A. The investigation may have been concluded.

I was not aware of the results of the investigation. I

don't know if it had been concluded, but it certainly

wasn't reported back to me because I remember quite

clearly being actually angry that a job offer had been

offered -- a job offer had been sent out before I even

heard back from Bender's office that they had finished

their job.

Q. Okay. So you contacted her, it appears


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from the first dated e-mail from you on November 5th of

2007?

A. Well, okay, now --

Q. If we look at page --

A. I didn't call her from Sweden. That was a

message that came while I was away. And so I had --

would have called her before I left.

Q. So you were at the departmental council

meeting and you've described that.

A. Yes.

Q. Then you went to your office and stewed?

A. Stewed.

Q. And then you called her that day?

A. I believe so.

Q. How many days after that did you leave for

Sweden?

A. Not very long.

Q. Okay. Because there's an e-mail dated

November 5, which is page 11, from you in which you're

telling Patty Bender I wanted to tell you that I am

working out of the country this week.

A. Yes.

Q. Is it fair to assume that this e-mail

followed your phone conversation with her?

A. Oh, certainly because I -- I would not


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have -- my initial contact with her was by telephone.

Q. Okay. Now, on page -- bear with me here,

I'm trying to put these in some sort of order. If you

go to the bottom of page 5 to the top of page 6, the

bottom of page 5 it appears to be a start of an e-mail

dated November 7, 2007, at 10:41 a.m. from you to Patty

Bender.

A. November 7, okay.

Q. And you say based upon your -- Patty,

based upon your e-mail from Monday in which you said

that, quote, "There has been no decision yet" on the

observatory director search, I was surprised to learn a

few minutes ago that an offer was made on Monday to Tim

Knauer.

How did you learn that an offer had been

made?

A. I don't remember.

Q. Were you in Sweden when you learned that?

A. I don't remember. I don't remember.

Q. So you talked to her --

A. Before the 5th of November.

Q. Okay. And by the 7th you had learned --

or you learned on the 7th from somebody that an offer

had been made previously to Tim Knauer?

A. It appears that way, that's right.


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Q. Do you remember who told you that?

A. I don't remember.

Q. All right.


(Off the record.)

MR. MANION: Let's go back on the

record.

Q. All right. Professor Kovash, I see in

this package three e-mails from you to Patty Bender.

A. Okay.

Q. And I'd just like you to walk through it

with me to make sure I'm not missing one, because

apparently in the e-mail world we do everything from the

back to the front. The first one, the way I understand

this is the one that begins at the bottom of page 11 --

I'm sorry, that's wrong.

A. Top of page 11?

Q. Yeah, top of page 11. And that's dated

November 5 at 5:08 a.m. Okay? That's the first one I

see.

A. Uh-huh.

Q. Then I see one, if you go backwards here,

on page 10, dated November 7 at 10:41, the short one

about I am surprised to learn an offer had been made.

A. Yes.


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Q. Okay. Then I see one -- if you go to page

8, page 8 from yourself dated November 15, 2007 to Patty

Bender, that's the third one I see, and that's the one

where you talked about your favored "candidate" and

civil liberties.

A. Yes.


(Off the record.)

MR. MANION: On the record.

Q. There is in this exhibit -- what are we

calling this? Exhibit 2? Exhibit 2, an e-mail that

starts at the bottom of page 6 but this appears to be a

duplicate of the one dated November 5 at 5:08. Does it

not?

A. It does.

Q. And turning the page back, the one that

begins at the bottom of page 5 again appears to be a

duplicate of the e-mail that we previously talked about

sent on November 7 at 10:41 a.m.

A. Yes.

Q. Okay. And going all the way back to

what's labeled page 3, which is actually the first page

of this exhibit, at the bottom there is again what

appears to be a duplicate.

A. Yes.


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Q. So I think we've looked at every e-mail in

this exhibit that was sent by you, and we've, I hope

clarified which are duplicates.

A. And there are three total.

Q. There are three. Other than those three,

do you know or think -- can you think of any other

e-mails that you sent about this issue to anybody?

Let's start with to Patty Bender.

A. I don't recall -- I mean, three sounds

like the right number to Patty Bender to me.

Q. Okay. Did you send e-mails to anybody

else about the hiring process issue?

A. Tom Troland.

Q. Have you produced those e-mails to

anybody?

A. I certainly did.

MR. MANION: I don't think we've seen

those if there were any.

A. I said Tom Troland. Let me think just a

minute here.

Q. We have identified already in this

deposition an e-mail that you said was your evaluation

of the candidates.

A. There is an e-mail that's about two

sentences long which Tom had sent me an e-mail after the


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process was finished, I believe, after the offer had

been made, after he had sent his note to Patty Bender,

in which he registered his disappointment with the

process, where he sent me a note, and I think I wrote

back something about spin, some reference to quantum

mechanics, some stupid physics thing, I don't think

there was any particular relevance or importance to. By

this point I had had it up to here, and I wasn't writing

long e-mails any longer related to this, but that's all

that I recall.

MS. KRIZ: I'm trying to think.

A. It's very short and it's about spin.

Q. It may have been --

MS. KRIZ: Off the record.

(Off-the-record discussion.)

MR. MANION: Back on the record.

Q. Other than the e-mail to Troland that you

just described, can you think of any others that you

sent regarding this hiring process?

A. It would have only been to Tom, and that's

the one I remember sending to Tom, and it was very

brief.

MS. KRIZ: It's not familiar to me

either.

MR. MANION: Okay. Fair enough.


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Q. During part of this deposition, you

referred to notes that you wrote for yourself today.

A. Today.

Q. Have you finished going through the notes?

A. Well, actually, I guess there is one more

issue.

Q. Are there any other issues involving the

hiring process that you recall?

A. Well --

Q. There's got to be a question and answer.

A. I understand. Again, I have limited

direct knowledge.

Q. I understand.

A. But I did have a conversation with Mike

Cavagnero, and Mike related to me that he and the dean

apparently had met with Patty Bender because Patty had

requested a discussion on this topic, and Mike had at

the time said the dean was very angry about this meeting

but that he was all smiles apparently when it came to

time to meet with Patty Bender. And then this offer to

Tim Knauer came soon on -- soon afterwards it seems.

I -- and this is just a personal -- this was a very

heavy-handed dean.

Q. He's no longer at the university.

Correct?


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A. He's no longer at any university as far as

I know it.

Q. This is Dean Hoch we're talking about?

A. This is Dean Hock we're talking about.

Q. When you talked with Mike about -- did

Mike indicate what the dean was angry about?

A. No. No.

Q. Did you conclude or have an opinion of

what the dean was angry about?

A. I only have an opinion.

Q. And what is your opinion?

A. My opinion is that this process of

evaluating our hiring practices in terms of the civil

rights of the candidates was something that the dean was

very unhappy to take part in.

Q. Okay. What else did Mike tell you about

the meeting with the dean and Patty Bender?

A. Nothing specifically. Nothing

specifically.

Q. I'm sorry, I interrupted you again.

A. No, no, just -- very heavy-handed dean.

Q. Okay. And what knowledge do you have of

the dean's involvement in this hiring process?

A. No direct knowledge.

Q. What indirect knowledge do you have?


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A. Just what I told you. Very limited.

Q. Have you had any other conversations with

Mike Cavagnero about this hiring process other than ones

you've talked about so far today?

A. Not that I remember.

Q. How about with Tom Troland? Same

question.

A. Those half dozen 10-minute, 15-minute

discussions while the committee was deliberating, I

think is the extent of it, and then once this was

initiated I ceased any discussion whatsoever with anyone

on this topic.

Q. And when you say "this," you're referring

to the lawsuit?

A. Yes.

Q. Going back to this rather confusing

exhibit, which I think we're starting to get a handle

on, Exhibit 2, at the end there is -- at the beginning

of bottom of page 11 and going on to page 12, there is

an e-mail from Tom Troland to Patty Bender.

A. Yes.

Q. And you've seen that before. Correct?

A. In fact, I think I was -- was I on the

distribution? Yes, I was on the distribution originally

for this, so yes.


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Q. Are the sentiments expressed in that

e-mail by Tom consistent with what he was saying to you

in your office during this hiring process, or at last at

the end of the hiring process?

A. Completely.

Q. Tom says at the top of page 12 of this --

well, beginning at the bottom he says: I know what

observatory committee members said in meetings and

privately, not just their e-mail comments.

You see that sentence?

A. No.

Q. Okay. Start at bottom of page 11.

A. Okay.

Q. It begins a paragraph, "From a moral

perspective, however, I find the decision indefensible.

I was part of the entire process that led to this

decision. I know what observatory committee members

said in meetings and privately, not just their e-mail

comments.

You see that?

A. Yes, I do.

Q. Do you know what Tom meant when he said:

I know what committee members said in meetings and

privately, not just through e-mail comments?

A. I know what he meant. I don't know


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everything that he knew.

Q. Tell me everything that you think he meant

by that.

A. Well, this was the basis for our

discussions. I mean, this is exactly what we talked

about, was that he was relaying to me in our 10, 15

minute meetings what the committee was saying on any

particular week, and the fact that it appeared to him

that Gaskell's personal beliefs had made a significant

impact on how the committee was proceeding.

Q. Okay.

A. Which is basically what he's saying here.

MR. MANION: I'm going to ask for

copies of the notes, if we can get a copy of that.

MS. KRIZ: Sure.

MR. MANION: Let's go off the record.

(Off the record.)

MR. MANION: Let's just -- so we have

it identified for the record.


Q. Professor, I'm showing you what we've

marked Exhibit 3, which appears to be a copy of three

pages of the notes that you've been referring to

throughout this deposition. Correct?

A. Yes.


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Q. And these are notes that you prepared this

morning in preparation for your deposition?

A. Yes.

Q. And as you indicated already, they are

notes, they are not necessarily complete sentences, but

these are notes that you made so that you would

accurately recall relevant facts prior to this

deposition?

A. That was my attempt.

Q. Okay.

MR. MANION: Let me talk to this guy

here for a minute.

(Off the record.)

Q. Professor Kovash, I think you've told me

about three conversations between yourself and Professor

Cavagnero during this process, the first one when he

mentioned this excellent candidate.

A. Yes.

Q. Another one about the dean.

A. Yes.

Q. He was going to meet with Patty Bender and

the dean, and I've already forgotten what the third one

was.

A. Council meeting.

Q. The council meeting.


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A. And actually, it wasn't "going to meet the

dean," had already met the dean.

Q. Okay. Any other conversations you had

with Mike Cavagnero about this hiring observatory

director issue?

A. Do I remember any others?

Q. Yes. Yes.

A. I do not.

Q. Okay. Now, earlier in your testimony you

related to me a comment that Troland told you that Sally

Shafer had made.

A. Yes.

Q. And you then said that that didn't

surprise you -- I'm paraphrasing here obviously --

A. That's right.

Q. -- because of what you knew about her

religious beliefs or lack --

A. That's correct.

Q. How did you know about her religious

beliefs or whatever they may or may not be?

A. She told me that when we were graduate

students together at Ohio State, and when it came time

to baptize our children, it was a bit of an issue, and

so I was very aware of her religious beliefs.

Q. And you say baptize our children?


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A. Yes. She and I had been married for 23

years.

Q. Okay. So you were aware of her religious

beliefs?

A. I certainly was.

Q. And I assume you were in favor of

baptizing your children and she was not?

A. That's correct.

Q. Okay.

A. The children were baptized.

Q. Okay. What about other members of the

committee? Are you aware of anything about their

religious beliefs or lack thereof?

A. No.

Q. When this process was going on back in

2007 -- I've never been to the physics and astronomy

department at U.K. that I know of. Are all the

professors' offices on the same floor?

A. We're consolidated but on three floors.

Q. Okay. Was there ever conversation during

that period of time about the issue of evolution and

creationism and that sort of thing just generally?

A. You mean hallway conversation --

Q. Yes.

A. -- or coffee room conversations?


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Q. Yes.

A. Not that I know of.

Q. Okay. Did you ever hear anything about

the -- whatever it's called, creation museum in

Cincinnati?

A. In our department?

Q. Yeah.

A. No.

Q. Okay.

MR. MANION: Okay. I have no further

questions.

MR. KRIZ: I have a few questions.

-----------

EXAMINATION

BY MS. KRIZ:

Q. Dr. Kovash, I think the record is fairly

clear, but just for my understanding, the -- in your

role in terms of the search process, did you ever speak

directly to any other advisory committee member other

than Tom Troland about their impressions of the

candidates?

A. About their impressions of the candidates?

Q. Correct.

A. It would have been Mike Cavagnero and -- I

mean -- no, I mean, I've related our conversations with


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Mike.

Q. Okay.

A. And that wasn't really specifically on his

impressions of the candidates other than he volunteered

initially that the applicant -- where there was an

excellent applicant.

Q. At this council meeting hen you asked Mike

specifically a question about, you know, tell us how the

process is working and where it's going, and you've

testified that you felt that Mike's response was

unsatisfactory in terms of providing you the information

you needed. You've also said that you don't recall

specifically what he said.

A. That's right.

Q. Can you recall generally what he discussed

in response to your query that day?

A. Well, what was not discussed was any of

the issue as it relates to Gaskell's personal beliefs.

And if Gaskell was being evaluated at least in part on

his personal beliefs -- and I certainly got that

statement explicitly from Tom Troland -- then I thought

that that should have been a discussion point. When you

review top candidates and there's a reason that someone

isn't advancing or other people are, then you -- yes,

that should be explicitly stated.


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Q. Did Mike Cavagnero provide you any

information about what criteria was considered by the

committee in making their selection? Although the

belief about evolution was not discussed, did he discuss

any other criteria that informed the committee and --

formed a basis for their conclusions?

A. I can't tell you what they were, but I'm

sure that the discussion was in that general direction,

yes.

Q. Did he advise you that some committee

members had some concerns about Dr. Gaskell's interest

in outreach?

A. No, not that I recall.

Q. Did he raise -- or did he advise you that

certain committee members had some concern that

Gaskell's interests were in research and that this job

did not have any research component associated with it?

A. Say that again for me, please.

Q. Did Mike Cavagnero explain to you that one

of the criteria that was used by the committee in making

their recommendations was that Dr. Gaskell was presumed

to have an interest in -- a primary interest in research

and there was no research component associated with this

position?

A. No.


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Q. Did he advise you -- well, you don't have

any recollection of the criteria that Dr. Cavagnero

cited in that council discussion about what was used by

the committee in making their decisions?

A. During that council meeting I asked him if

he would review the process, the procedures, the

progress the committee had been making, and he named

candidates that the committee had been reviewing and

were top candidates and that we would invite these

particular people and interview them but -- or maybe at

that point we already had invited the people and had

already interviewed them and had already deliberated on

their suitability for the job, I don't remember

specifically the case.

What we did not get was what I felt was a

clear statement of how the committee came to the

decision that they came to based on a set of criteria,

no, we didn't get a clear set of criteria and how the

candidates racked up against those criteria.

Q. In the context of that council meeting did

you ask Dr. Cavagnero whether the committee had

considered Dr. Gaskell's position on evolutionary

science as a criteria?

A. No. No, I did not.

Q. Other than what Tom Troland had relayed to


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you, were there any other reasons that you felt Mike

Cavagnero's explanation at council meeting was what

you've later referred to as spin on the process?

A. No.

Q. In terms of any comments made by

Dr. Troland about Gaskell and what criteria was reviewed

by the committee, other than his position on

evolutionary science was there any other aspect of his

personal religious beliefs that were ever referenced?

A. Not that I remember.

Q. Did you ever speak to Sally Shafer about

why she voted against Dr. Gaskell?

A. No.

Q. Did you ever speak to Steve Ellis about

why he voted against Dr. Gaskell?

A. No.

Q. Did Tom Troland actually share with you

the e-mail that was exchanged between the various

committee members during the deliberation process?

A. No. No.

Q. So when you had any of these weekly

discussions, six or seven of them with Tom Troland, it

was merely his recollection of what had been -- what had

occurred rather than him showing you documents about

what had occurred?


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A. That's exactly the basis for those

discussions.

Q. And did you participate in drafting the

criteria for the position of observatory director?

A. I don't believe I did, no.

Q. And do you have -- did you ever review any

documents that were generated by the advisory committee

as to what they were looking for in the observatory

director position?

A. I have to be -- I have to be careful

because I at some point certainly would have conveyed to

at least the chairman of the department how important I

felt it would be for the observatory director to promote

undergraduate research. Now, it wasn't I don't think

the case that I was asked to make a list of criteria or

rank order them or anything like that, but I'm sure that

I would have at some point, and I can't tell you when or

how, but I would have conveyed that to the chair of the

department, expecting that that would have been a

consideration as the candidates were evaluated.

Q. In terms of what your role would have been

with this observatory, I mean do your classes, would

that have involved the use of the observatory and any

interaction with the observatory director?

A. My interaction with the observatory


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director, in fact, had been that while I was still

Director of Undergraduate Studies, which was up until

last summer, I had opportunity to place undergraduate

students in to basically work study roles. And I worked

with Tim Knauer to place -- I forget whether one or two

students in the observatory working with him. I also

had an opportunity, again as my role of DUS, to put

students who wanted research credit, academic research

credit, in to research projects, and again working with

Tim Knauer I arranged that a student would work with him

and with Gary Ferland on a research project that soon

got academic credit for. So had I continued as DUS, I

would see more of that over time, but I didn't and so,

no.

Q. And aside from your role as Director of

Undergraduate Studies, would you have had any role at

all in terms of utilization of the observatory in your

course work or in your research?

A. I teach -- in fact, I'm scheduled to teach

again this coming year a senior level -- junior/senior

level research class, and we are anticipating having one

or more telescope-based projects in that class for the

students to do. So yes, I anticipate my -- in fact, the

project that Ferland and Knauer worked with the students

on so far was to -- preparatory so that we could in fact


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use a telescope to make quantitative measurements, not

just observing but actually making measurements using

some of the instruments on the telescope in our graduate

or our senior level laboratory class, and I run that

senior level lab class.

Q. It sounds like your involvement with the

observatory would be rather limited in terms of your

research and course work.

A. My own personal research has no overlap

whatsoever with astronomy. Well, with observational

astronomy. I do nuclear astrophysics, but that doesn't

use a telescope. And as I'm not a DUS any longer, my

role basically is now limited to these senior level lab

projects.

Q. You had described for us that Tom Troland

had related to you comments that were made by both Sally

Shafer as well as Steve Ellis in the committee meetings.

You did not personally speak to either of those

individuals --

A. That's correct.

Q. -- to question them about those statements

and whether in fact they had made those statements?

A. That's correct. I did not ask them

specifically.

Q. And other than Tom Troland's comments to


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you about the process, do you have any personal

knowledge as to what factors influenced the committee

members in making the selection that they did?

A. Nothing that I haven't relayed today.

MS. KRIZ: That's all I have. Thank

you.

MR. MANION: Well, she makes me ask

more.

--------------

RE-EXAMINATION

BY MR. MANION:

Q. How long have you known Tom Troland?

A. Twenty-four years. I'm sorry, 24 plus or

minus two maybe, I don't know.

Q. Okay. And do you consider Tom a friend of

yours, or professional colleague, or both?

A. He's certainly a professional colleague,

and I consider him a friend as well.

Q. You say that you had possibly half a dozen

conversations in your office during this hiring process

with Tom Troland. Correct?

A. Yes.

Q. Based on your long acquaintance with Tom,

when he would tell you things that he had heard or had

happened in meetings, did you have any reason to doubt


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the truth of what he was telling you?

A. No.

Q. You ever known him to be an exaggerator, a

liar, or anything like that?

A. No.

Q. Do you know if Tom has a particular

religious belief or affiliation of any kind?

A. Not that I know of.

Q. It's not something he's ever talked about

in front of you?

A. No. No, sir.

Q. Do you know if he was personally

acquainted with Martin Gaskell prior to this hiring

process?

A. Tom Troland personally? Perhaps through

the association that they had when Gaskell visited, but

I don't know of any time other than that.

Q. He's not somebody that Troland would refer

to as a friend or pal of his or something like that?

A. I wouldn't know.

Q. Okay. Let me show you Exhibit 19 from the

Troland deposition. Exhibit 19 is an e-mail -- I'm just

going to do this the easy way by coming, standing non-

menacingly near you -- is an e-mail dated September 24,

2007 at 7:19 p.m., and various people have testified


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about this e-mail. It appears to be Tom Troland's

summary of the committee meeting that had taken place

that day.

A. All right.

Q. And it appears that the committee

deliberated upon a set of four criteria which Tom says

are four, but looks to me like they're five -- we'll let

that pass -- and one of those criteria is experience

with outreach programs. Correct?

A. Yes.

Q. Other is experience with undergraduate

teaching and research. Correct?

A. Yes.

Q. And we've got lower division undergraduate

teaching in laboratories?

A. Yes.

Q. Managerial expertise?

A. Yes.

Q. And technical expertise?

A. Yes.

Q. And the results of the rating that was

done by the committee show that Gaskell came out on top

with an 8, score of 8, and that Knauer had a score of 5.

Do you see that?

A. I do.


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Q. Does that surprise you?

A. No.

Q. Based on your interviewing of the two

individuals?

A. I'm not surprised.

MR. MANION: Okay. I have no further

questions.

MS. KRIZ: Nothing more.

(DEPOSITION CONCLUDED 12:24.)


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STATE OF KENTUCKY )

COUNTY OF FAYETTE )

I, ANN HUTCHISON, Registered Professional

Reporter and Notary Public, State of Kentucky at Large,

whose commission as such will expire May 3, 2012, do

hereby certify that the foregoing deposition was taken

by me at the time, place, for the purpose and with the

appearances set forth herein; that the same was taken

down by me in stenotype in the presence of the witness

and thereafter correctly transcribed by me upon

computer; and that the witness was duly placed under

oath by me prior to giving testimony.

I further certify that I am not related to nor

employed by any of the parties to this action or their

respective counsel and have no interest in this

litigation.

Given under my hand, this 30th day of March,

2010.

_______________________________ANN HUTCHISON, RPRRegistered Professional ReporterNotary Public, State-at-Large


Martin's professional credentials far * EXHIBIT t2ff. f-concern. In fact, my "favored i 2.c3 "" Kovash'"ifi

0..

roundtables in one week.

will volunteer to do lunch with all 3 candidates, and will invitesome students to join me in these, so the host need not worryabout lunch. I will also be happy to meet with each candidatefor one hour, to discuss the detailed job description, preferablylate in the day (4-5) on MWF.

Please let me know if you are willing to volunteer for oneof these host jobs.

The GA's should let me know their schedules next week.

Thanks,Mike C

Subject:Re: observatory directorFrom:"Thomas H. Troland" <[email protected]>Date:Thu, 15 Nov 2007 13:36:03 -0500

To:"Michael A. Kovash" <[email protected]>

Mike,

Having seen the whole interview process play out, and spoken with othercommittee members during meetings and privately, I can say with completeconfidence that the issue of Gaskell's beliefs on evolution werethoroughly discussed, and they played a significant role in thecommittee's recommendation that another applicant be offered the job.While other reasons were sometimes given for this recommendation (e.g.Gaskell is not a good listener, an impression that I did not formmyself), any committee member who denies the importance of the evolutionissue in the decision is, to be blunt, lying.

The elephant was certainly in the room. But it was not invisible.Everybody saw it (including me) and everyone talked about it.

I will be curious to hear how Patty responds. If you need any furtherinformation from me, just let me know.

The circumstances surrounding this regrettable action by the universityoffer more than one inconvenient truth that many, I believe, wouldrather deny.

Tom

At 09:07 AM 11/15/2007, you wrote:Patty,

I may have been confusing about the reason I brought this matter to yourattention in the first place. I am, in fact, quite familiar with TimKnauer, and one summerhe worked with me on a project in Japan. I like him personally and verymuch want tosee his succeed in life. On the contrary, my personal knowledge ofHartin Gaskillamounts. only. to t:he 31T rninu,te", h'e_talked during his interview t-rip. -AUQv,hiie- - -- - -it is blatantly obvious to me thatsurpassTim's, even that wasn't my primary

Case: 5:09-cv-00244-KSF-REW Doc #: 23-1 Filed: 09/28/10 Page: 1 of 10 - Page ID#: 480

candidate" (touse your term) is the civil liberty of each candidate. I believe thatthe primary reasonthat Martin wasn't chosen for the job is his deeply-felt stance on humanevolution -- amatter which is strictly personal, irrelevant to this particular hiringprocess, andinextricably entwined with Dr. Gaskill's civil rights and personalfreedoms.I also believe that the University Administration has engaged in acampaign of spin control so as to prevent him from becoming the observatorydirector. Although I wasn'tpersonally on the selection committee, I have talked to its chair atlength, and tothe chair of our department. These discussions form the basis for myopinions.I am convinced that the matter of Martin's personal feelings aboutevolution,once exposed in the review process, have become the invisible elephantin every subsequent discussion and have in fact guided this injustice.

Based upon your earlier email, I thought that your office would reviewthis case,possibly seek legal advice, and then make a recommendation. However, it nowdoesn't appear to have happened that way, and we don't have the benefitof athird-party review. So I really have only one remaining question: Is ityour opinionthat Martin Gaskill's civil liberties have not been abridged by theUniversity?

Sincerely,Mike Kovash

Bender, Patty wrote:Mike,

Sorry for the delay, I have been running and did not want to give you apartial or uninformed response. I talked to the Dean again about thisposition. The final decision was his and you are correct, he did make anoffer to Mr. Knauer. All the reasons that were considered I cannotdescribe for you. You may want to discuss those with either the Dean oryour Chair. I believe Steve and Mike were in agreement, however I willnot presume to speak for them.

The University is always appreciative when someone expresses concernabout our processes and gives us an opportunity to have conversationsabout how we need to do things at UK. My involvement was to relay yourconcerns and investigate the details in an effort to ensure that theUniversity does not make a hiring decision based on factors which arediscriminatory. However, a legitimate non-discriminatory decision may bemade on many factors above and beyond the apparent weight of someone'sapplication.

Even to my non physics. eye it aWfu3.Ls that VOljr-£-a.v-Ored hadmar", equc;.i:i.tl.()ll.ami experLencBand clearly that. was ta.ken.;L+luWconsideration. However, other factors may also be weighed and may infact be deciding factors in any hiring decision over and above thestrength of the application. References, job fit, economicconsiderations, scholarship and other non-discriminatory factors may

4


individually or all be considered as part of the hiring process. I hadan opportunity to have this discussion with Mike and Steve before Ireviewed the file and after with Steve.

Ultimately, it was the Dean's decision and he is confident that it wasmade taking into consideration many factors. I am satisfied he made aninformed decision and we had all the appropriate conversations. Theconcerns you and Tom Troland relayed to me were expressed.

I am happy to talk to you about this anytime. Hiring decisions arealways hard and made even more contentious than normal when people knowand like one or more of the applicants. I can only assure you that theDean was the final decision-maker on this position and multiple factorswere taken in consideration.

Please be informed that retaliation against anyone making orparticipating in the investigation of a complaint is prohibited. Anysuch behavior should be reported immediately to me.

I hope I have the opportunity to meet you and Tom Troland in personsometime and look forward to seeing the new observatory!

Thank you!

Patty

Patty Bender

Assistant Vice President for Equal Opportunity

(859) 257-8927

(859) 323-3739 Fax

[email protected]<mailto:[email protected]>

From: [email protected],eduSent: Wednesday, November 07, 2007 10:41 AMTo: Bender, Pattysubject: RE: observatory

5


Patty.

Based upon your email from Monday in which you said that "There has been nodecision yet" on the observatory director search, I was surprised tolearn afew minutes ago that an offer was made on Monday to Tim Knauer. Is thistrue,and if so, was it made upon the recommendation of your office? (I'm justtryingto reconcile these apparently conflicting statements.)

best,Mike Kovash

Quoting "Bender, Patty" <[email protected]>:

Mike:

I appreciate your initial call and this follow-up email. I have talked toyour colleague Tom Troland and have reviewed a number of emails on thesubject. To date I have also talked to your Chair and Dean. UK's legalofficewas consulted.

As I know you appreciate there are many opinions on this issue. While thereis always a fair amount of spin on and emotion in any issue, especiallyhiring issues, I am trying to assemble the valid arguments/opinions allaround as well. We too try to take a fairly scientific or fact-basedapproachto our recommendations.

There has been no decision yet but I will contact you again and/or you areencouraged to contact me anytime. I will email you this week if I needadditional information, but due to the volume of information available I donot anticipate that will be necessary.

On behalf of UK, thanks again for raising the issue for consideration. Ilookforward to meeting you and Tom Troland in person sometime.

Have a productive and safe week traveling!

Patty

Patty BenderAssistant Vice President for Equal OpportunityUniversity of Kentucky(859) 257-8927(859) 323-3739 - [email protected]

-----Original Message-----From: [email protected] [mailto:[email protected]]sent: Monday, November 05, 2007 5:08 AMTo: Bender, PattySubject: observatory director

Patty:

I wanted to tell you that I am working out of the country this week, so ifyouwant to talk again soon I can be reached by email. As you work to sort

6


throughthis issue I also wanted to emphasize that Tom Troland, who was a party toallof the search committee's deliberations, seems to have a very even-handedviewof thematter. I trust Tom's judgement as well as his interpretation of thediscussionsthat led up to the committee's final recommendation. Perhaps unlike someothers,Tom seems not .to be 'spinning' the story as he relates the committee'swork.

best,Mike KovashPhysics

Subject:RE: observatory directorFrom:"Bender, Patty" <[email protected]>Date:Mon, 19 Nov 2007 11:46:33 -0500

To:"Michael A. Kovash" <[email protected]>, Tom Troland <[email protected]>

Mike,

I apologize for not answering your question in my first email. You assumed correctly ... Idid review the case and your statements (as well as those of Tom Troland, Mike Cavagnero,Steve Hoch, and many emailstoandfromthesearchcommittee).Idid discuss my reviewwith the legal office and they are aware of your concerns and the factors considered bythe Dean. There were multiple concerns and multiple factors considered before the offerwas made.

Finally, I did make a recommendation but it was not on which candidate to choose for thisposition. I am not qualified to make that decision. My two semesters of college physicswere too little and too many years ago! My recommendation was to delay the offer until theconcerns were reviewed, make sure the Dean and Chair understood the real concerns of thefaculty and any liability connected with those concerns, and to ensure that everyoneinvolved in the final decision understood their responsibility to make a hiring decisionbased on multiple non-discriminatory factors, i.e. skills, references, job fit, economics,etc.

Would it make it easier for me to review had his beliefs not been discussed? Sure, but Dr.Gaskell linked his beliefs with his science, not the search committee. I am reassured thatthere are other non-discriminatory factors that made this decision not as labored as itoriginally looked on paper. Based on these factors, I am content his civil liberties havenot been abridged by those making the hiring decision.

I hope this answers your question more completely, even though I realize it is still notthe answer you wanted. I am happy to discuss this further in person if you prefer asopposed to email. I will defer--.-tD---.ei tber YOllr eha i 17 or th@D@anifyou¥lantmorede:t-a-±icdclcfsr----on the personal factors on any of the candidates used to make the final decision.

Thanks, Patty

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Patty BenderAssistant Vice President for Equal OpportunityUniversity of Kentucky(859) 257-8927(859) 323-3739 - [email protected]

-----Original Message-----From: Michael A. Kovash [mailto:[email protected]: Thursday, November IS, 2007 9:08 AMTo: Bender, Patty; Michael A. Kovash; Tom TrolandSubject: Re: observatory director

Patty,

I may have been confusing about the reason I brought this matter to yourattention in the first place. I am, in fact, quite familiar with TimKnauer, and one summerhe worked with me on a project in Japan. I like him personally and verymuch want tosee his succeed in life. On the contrary, my personal knowledge ofMartin Gaskillamounts only to the 30 minutes we talked during his interview trip. Andwhileit is blatantly obvious to me that Martin's professional credentials farsurpassTim's, even that wasn't my primary concern. In fact, my "favoredcandidate" (touse your term) is the civil liberty of each candidate. I believe thatthe primary reasonthat Martin wasn't chosen for the job is his deeply-felt stance on humanevolution -- amatter which is strictly personal, irrelevant to this particular hiringprocess, andinextricably entwined with Dr. Gaskill's civil rights and personal freedoms.I also believe that the University Administration has engaged in acampaign of spin control so as to prevent him from becoming the observatorydirector. Although I wasn'tpersonally on the selection committee, I have talked to its chair atlength, and tothe chair of our department. These discussions form the basis for myopinions.I am convinced that the matter of Martin's personal feelings aboutevolution,once exposed in the review process, have become the invisible elephantin every subsequent discussion and have in fact guided this injustice.

Based upon your earlier email, I thought that your office would reviewthis case,possibly seek legal advice, and then make a recommendation. However, it nowdoesn't appear to have happened that way, and we don't have the benefitof athird-party review. So I really have only one remaining question: Is ityour opinionthat Martin Gaskill's civil liberties have not been abridged by theUniversity?

Sincerely,Mike Kovash

Bender, Patty wrote:

> > Mike,> >> >> >

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> > Sorry for the delay, I have been running and did not want to give you a partial oruninformed response. I talked to the Dean again about this position. The final decisionwas his and you are correct, he did make an offer to Mr. Knauer. All the reasons that wereconsidered I cannot describe for you. You may want to discuss those with either the Deanor your Chair. I believe Steve and Mike were in agreement, however I will not presume tospeak for them.> >> >> >> > The University is always appreciative when someone expresses concern about ourprocesses and gives us an opportunity to have conversations about how we need to do thingsat UK. My involvement was to relay your concerns and investigate the details in an effortto ensure that the University does not make a hiring decision based on factors which arediscriminatory. However, a legitimate non-discriminatory decision may be made on manyfactors above and beyond the apparent weight of someone's application.> >> >> >> > Even to my non-physics eye it appears that your favored candidate had more educationand experience and clearly that was taken in to consideration. However, other factors mayalso be weighed and may in fact be deciding factors in any hiring decision over and abovethe strength of the application. References, job fit, economic considerations, scholarshipand other non-discriminatory factors may individually or all be considered as part of thehiring process. I had an opportunity to have this discussion with Mike and Steve before Ireviewed the file and after with Steve.> >> >> >> > Ultimately, it was the Dean's decision and he is confident that it was made takinginto consideration many factors. I am satisfied he made an informed decision and we hadall the appropriate conversations. The concerns you and Torn Troland relayed to me wereexpressed.> >> >> >> > I am happy to talk to you about this anytime. Hiring decisions are always hard andmade even more contentious than normal when people know and like one or more of theapplicants. I can only assure you that the Dean was the final decision-maker on thisposition and multiple factors were taken in consideration.> >> >> >> > Please be informed that retaliation against anyone making or participating in theinvestigation of a complaint is prohibited. Any such behavior 9hould be reportedimmediately to me.> >> >> >> > I hope I have the opportunity to meet you and Torn Troland in person sometime and lookforward to seeing the new observatory!> >> >> >> > Thank you!> >> > Patty> >> >> >> >> >> > Patty Bender> >> > Assistant Vice President for Equal Opportunity> >> > (859) 237-8927> >

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> > (859) 323-3739 Fax> >> > [email protected]<mailto:[email protected]>> >> >> >> >> >> >> >> >> >> >> >> >> >> > From: [email protected] [[email protected]]> > Sent: Wednesday, November 07, 2007 10:41 AM> > To: Bender, Patty> > Subject: RE: observatory director> >> > Patty,> >> > Based upon your email from Monday in which you said that "There has been no> > decision yet" on the observatory director search, I was surprised to learn a> > few minutes ago that an offer was made on Monday to Tim Knauer. Is this true,> > and if so, was it made upon the recommendation of your office? (I'm just trying> > to reconcile these apparently conflicting statements.)> >> > best,> > Mike Kovash> >> >> >> > Quoting "Bender, Patty" <[email protected]>:> >> >>» » Mike:» »» » I appreciate your initial call and this follow-up email. I have talked to» » your colleague Tom Troland and have reviewed a number of emails on the» » subject. To date I have also talked to your Chair and Dean. UK's legal office» » was consulted.» »» » As I know you appreciate there are many opinions on this issue. While there» » is always a fair amount of spin on and emotion in any issue, especially» » hiring issues, I am trying to assemble the valid arguments/opinions all» » around as well. We too try to take a fairly scientific or fact-based approach» » to our recommendations.» »» » There has been no decision yet but I will contact you again and/or you are» » encouraged to contact me anytime. I will email you this week if I need» » additional information, but due to the volume of information available I do» » not anticipate that will be necessary.» »» » On behalf of UK, thanks again for raising the issue for consideration. I look» » forward to meeting you and Tom Troland in person sometime.» »» » Have a productive and safe week traveling!» »» » Patty» »» »» »» » Patty Bender» » Assistant Vice President for Equal Opportunity

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» » University of Kentucky» » (859) 257-8927» » (859) 323-3739 - Fax» » [email protected]» »» » -----Original Message-----» » From: [email protected] [mailto:[email protected]]» » Sent: Monday, November OS, 2007 5:08 AM» » To: Bender, Patty» » Subject: observatory director» »» » Patty:» »» » I wanted to tell you that I am working out of the country this week, so if» » you» » want to talk again soon I can be reached by email. As you work to sort» » through» » this issue I also wanted to emphasize that Tom Troland, who was a party to» » all» » of the search committee's deliberations, seems to have a very even-handed» » view» » of the» » matter. I trust Tom's judgement as well as his interpretation of the» » discussions» » that led up to the committee's final recommendation. Perhaps unlike some» » others,» » Tom seems not to be 'spinning' the story as he relates the committee's work.» »» » best,» » Mike Kovash» » Physics» »» »» »» »» »»

Subject:RE: observatory directorFrom:"Thomas H. Troland" <[email protected]>Date:Mon, 19 Nov 2007 18:38:53 -0500

To:"Bender, Patty" <[email protected]>, "Michael A. Kovash"<[email protected]>

Patty,

Thank you for the two messages regarding your review of the observatorydirector's hiring process. I recognize that the decision on thisposition has been made. And it is just as well that this decision wasjudged defensible from a legal perspective.

From a moral perspective, however, I find the decision indefensible. Iwas part of the entire process that led to this decision. I know what

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observatory committee members said in meetings and privately, not justtheir e-mail comments. I know that the university (not your office!)chose an applicant with almost no relevant experience over one withimmense experience in virtually every aspect of the observatorydirector's duties. And I know that this choice was made (to asignificant extent) on grounds that have nothing to do with the job asadvertised nor with the job as envisioned by our department. Inparticular, the job has nothing to do with biology. Applicant Gaskellhas no science to offer in biology since he is not trained nor does hepublish in this field. All he has in biology are personal opinions,much as I have personal opinions about global warming even though I haveno scientific expertise in that field.

In short, applicant Gaskell was judged on his personal beliefs, beliefsunrelated to the job he applied for. This choice was unconscionable,and it brings shame upon all who were part of it, including me. I dorealize, however, that you were not part of this decision.

Sadly, my belief in the integrity of the University of Kentucky and inits commitment to fairness and diversity has suffered greatly as aresult of these events. I never thought I would have this experienceafter 26 years of employment here.

Sincerely,

Tom Troland

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Documents

DEPOSITION OF MICHAEL KOVASH, Ph.D. · 2010-12-06 · 2 Series of e-mails 14 3 Dr. Kovash's handwritten notes 46 (Above-referenced exhibits accompany original and copy transcripts.)