deposition of michael cavagnero,...

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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

Case: 5:09-cv-00244-KSF-REW Doc #: 39 Filed: 09/28/10 Page: 1 of 221 - Page ID#: 1263

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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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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


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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EXHIBITS(Cont'd)


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



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EXHIBITS(Cont'd)


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


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



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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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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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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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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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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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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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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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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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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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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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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.


(Off-the-record comments.)


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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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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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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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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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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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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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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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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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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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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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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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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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.


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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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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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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Let's take a look at the CV.


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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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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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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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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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?


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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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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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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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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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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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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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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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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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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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.




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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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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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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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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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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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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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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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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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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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?


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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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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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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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.




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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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.


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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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?


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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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?


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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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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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.)


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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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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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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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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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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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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next page.


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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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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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.


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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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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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.


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?



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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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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.


(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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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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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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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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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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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.


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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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?


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?


Q. And then for Knauer it says: Reasonable

candidate, probably not among the best? 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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break?

MR. MANION: Absolutely.

(11:25 BREAK 11:28.)

Q. Let's look at another e-mail.


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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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?



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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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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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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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didn't I?


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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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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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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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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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.



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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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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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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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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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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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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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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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?


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.


Q. I'm not done with Exhibit 12, but I'm


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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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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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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?


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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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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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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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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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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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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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.



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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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?


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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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.



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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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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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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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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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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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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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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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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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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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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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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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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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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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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MR. MANION: Let's break for lunch.

MS. KRIZ: Okay.

(12:24 lunch recess 1:12.)


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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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: All right. Back on the

record.


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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.


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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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?


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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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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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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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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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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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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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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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?


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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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.


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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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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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.


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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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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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.


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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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.




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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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.


Q. Showing you Exhibit 25, which appears to

be an e-mail from Nancy Levenson dated October 3, 2007,


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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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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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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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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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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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MR. MANION: I understand.

MS. KRIZ: He's trying to teach you.

This is off.


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.


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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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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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.




Exhibit 27, which appears to be an e-mail from you to


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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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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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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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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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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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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.



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record.


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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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.


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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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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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?


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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counsel.

Q. All right. Let's move along here.


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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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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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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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?


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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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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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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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.




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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e-mail from yourself to the committee, subject Knauer

Interview, is this a summary of your on-campus interview

with Tim Knauer?


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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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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Q. All right. Let's move on. Thirty-one.


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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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.


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?


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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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.


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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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.



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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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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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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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...


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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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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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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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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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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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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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 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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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?


A. I don't know. I really can't imagine what

that's referring to.

MR. MANION: Let's go on to this one.


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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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.


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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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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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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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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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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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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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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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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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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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.


Q. Exhibit 39 is an e-mail from Sally Shafer


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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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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?


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.



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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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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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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.


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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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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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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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.


MR. MANION: Could I see that?

(Document handed to counsel.)


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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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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a statement of my own decision about director position.



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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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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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.


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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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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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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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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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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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?


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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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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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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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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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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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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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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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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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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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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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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