Documentation to "My Case"
Friday, January 12, 2007
Opposition to Defendant's Motion for Summary Judgment
-
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
------------------------------------------------------- X
TIBOR GASPARIK,
Plaintiff,
-against-
STONY BROOK UNIVERSITY
Defendant.
------------------------------------------------------- X
CV-05-03817 (SJF)
DECLARATION
TIBOR GASPARIK, Plaintiff pro se, affirms the following under penalties of perjury:
1. I am Plaintiff pro se in this action, and this affirmation is submitted in opposition to the Defendant’s motion for summary judgment pursuant to Federal Rule of Civil Procedure 56.
2. I am fully familiar with all of the facts and circumstances in this case.
3. It is Plaintiff’s position that the sole reason that the Plaintiff was persecuted and eventually terminated from employment by the Defendant was his political orientation.
4. The annexed exhibits are relevant to and are referenced in the Plaintiff’s Statement of Undisputed Facts and Memorandum of Law submitted in opposition to the Defendant’s motion for summary judgment.
5. Annexed hereto as Exhibit “A” is the document titled “Account of my Persecution,” with the selected supporting documentation labeled as (Exhibit) E-1 to E-60.
6. Annexed hereto as Exhibit “B” is the document titled “Credentials and Accomplishments,” with the selected supporting documentation labeled as (Exhibit) E-61 to E-100.
7. Annexed hereto as Exhibit “C” is the document titled “E-mails relevant to the teaching position at the Ralph G. Reed Middle School in the Central Islip School District.”
8. Annexed hereto as Exhibit “D” is the document titled “Discrimination in Academia: End of 2006 Review,” with the selected supporting documentation labeled as (Link) L-1 to L-70.
9. Referenced pages from the transcript of Plaintiff’s Deposition are annexed to the Defendant’s moving papers.
10. The exhibits listed above are being filed in hard copy and will be maintained in the case file in the Clerk’s Office. The exhibits and complete supporting documentation are also accessible on the Plaintiff’s Web site “Tibor Gasparik - Discrimination in Academia” (http://suny-stonybrook.blogspot.com/).
WHEREFORE, it is respectfully requested from this Court that the Defendant’s motion for summary judgment is denied in its entirety.
Dated: Holtsville, New York
January 12, 2007
_____________________________
Tibor Gasparik
Plaintiff pro se, and
Research Associate Professor
352 Plad Blvd
Holtsville, New York 11742
(631) 447-2168
TO: Lori L. Pack
Office of the Attorney General
300 Motor Parkway, Suite 205
Hauppauge, NY 11788
____________________________________________________________________________________
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
------------------------------------------------------- X
TIBOR GASPARIK,
Plaintiff,
-against-
STONY BROOK UNIVERSITY
Defendant.
------------------------------------------------------- X
CV-05-03817 (SJF)
STATEMENT PURSUANT TO LOCAL RULE 56.1
Plaintiff pro se, TIBOR GASPARIK, submits, pursuant to Local Rule 56.1, the following statement of material facts, in which he contends that there exists a genuine issue to be tried:
1. Plaintiff was employed from April 1, 1985, to January 31, 2002, as Lab Manager and Research Associate Professor at the Department of Geosciences, Stony Brook University.
2. Plaintiff has always received the highest evaluations and performed research at the levels that could be rated among the best in the world by any standards of scholarly achievement. This was summarized in the document: “Credentials and Accomplishments” (Exhibit “B” attached to Plaintiff’s Declaration, with the supporting documentation: E-61 to E-100).
3. However, for most of his employment, Plaintiff was subject to a series of hostile actions by his superiors, employees of the University, with the clear intention of making his work difficult and life miserable and thus to force him to leave the employment. This was summarized in the document: “Account of my Persecution” (Exhibit “A” attached to Plaintiff’s Declaration, with the supporting documentation: E-1 to E-60).
4. When these actions failed, Plaintiff was dismissed on January 31, 2002, in gross violation of his true seniority status and under the excuse that “the project has ended” (E-28).
5. Yet, despite being the most senior and most valuable and accomplished scientist among all scientists participating in the project (E-29/1), and could be rated as one of the best faculty members (E-29/2), Plaintiff was the only one dismissed under this excuse.
6. Although Plaintiff retained his position as Research Associate Professor at the Department of Geosciences, the Department would not consider him for any employment that could provide salary.
7. Attempts to secure research funding and salary from the National Science Foundation (NSF) were apparently sabotaged by his former superiors at the Department (E-33). This has also become evident from the fact that the NSF stopped sending him research proposal for review immediately following the dismissal (E-35).
8. Plaintiff’s complaints to the Provost (E-38) and President (E-40, E-52) of the Stony Brook University were stonewalled.
9. To obtain an alternative source of income, Plaintiff completed at the same University a Masters of Art in Teaching (MAT) degree in Earth Science in May 2005, and hoped to start a new career as secondary school teacher (E-63).
10. Plaintiff was promised a leave of replacement position at Ralph G. Reed Middle School in Central Islip, following completion of all requirements and satisfactory performance as student teacher between March and May 2005 (Exhibit “C” attached to Plaintiff’s Declaration).
11. The University promised to expedite the certification process following satisfactory completion of all requirements. Instead, the University delayed issuing a letter to that effect, which resulted in the loss of this employment opportunity (Exhibit “C”).
12. When Plaintiff posted in June 2005 a Web site summarizing his persecution, the University and the Department retaliated, in violation of the First Amendment, by taking his name off the list of faculty members posted on the departmental Web site, and ordered him to vacate his office (E-59).
13. Because this action made it extremely difficult or nearly impossible for Plaintiff to continue in his efforts to secure research funding, further contribute to the advancement of science, and restart his former career as scientist and professor, he was forced to seek justice through the legal system and filed a complaint at the United States District Court in Central Islip on August 11, 2005 (E-60).
14. For many years Plaintiff searched in vain for an explanation for the startling discrepancy between his superior performance and accomplishments as a scientist (Exhibit “B”), and the indifferent or hostile behavior by his colleagues at the Department of Geosciences (Exhibit “A”). Several of his colleagues at the Department devoted extraordinary amounts of time and effort to a single goal: forcing him to leave.
15. In the last few years, it has become obvious that most universities and colleges in the United States discriminate against conservative professors in hiring, retention and promotion. This was summarized in the document “Discrimination in Academia: End of 2006 Review” (Exhibit ”D” attached to Plaintiff’s Declaration, with the supporting documentation: Links 1-70).
16. This fact is based on, by now, overwhelming evidence from surveys (Links 1, 2, 5, 7, 13, 32), voter registration records (Link 8), voting records (Link 4) and political donations (Links 63, 64).
17. Stony Brook University has a record of belonging to more extreme of the institutions of higher education in its liberal policies and liberal bias. For example, only 18% of the university employees voted for President Bush in the last presidential elections on November 2, 2004 (Link 4).
18. Plaintiff has never tried to hide his conservative views nor his record of voting for Republican candidates, but cannot name any faculty member or other university professor who is not a liberal. In fact, Plaintiff believes that all faculty members at the Department are registered Democrats.
19. Plaintiff does not even have the option of pretending to be a liberal, because it is widely known among his peers in the scientific community that he is a refugee from communism, therefore, labeled and blacklisted as anti-communist; in fact, he is a registered Republican.
20. Plaintiff believes that his political orientation was the sole reason for the acts of persecution by his colleagues at the Department of Geosciences and by the University administrators, and for the termination of his employment.
Dated: Holtsville, New York
January 12, 2007
_____________________________
Tibor Gasparik
Plaintiff pro se, and
Research Associate Professor
352 Plad Blvd
Holtsville, New York 11742
(631) 447-2168
TO: Lori L. Pack
Office of the Attorney General
300 Motor Parkway, Suite 205
Hauppauge, NY 11788
____________________________________________________________________________________
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
------------------------------------------------------- X
TIBOR GASPARIK,
Plaintiff,
-against-
STONY BROOK UNIVERSITY
Defendant.
------------------------------------------------------- X
CV-05-03817 (SJF)
PLAINTIFF’S MEMORANDUM OF LAW IN OPPOSITION TO DEFENDANT’S MOTION
FOR SUMMARY JUDGMENT
Tibor Gasparik
Plaintiff pro se, and
Research Associate Professor
352 Plad Blvd
Holtsville, New York 11742
(631) 447-2168
TABLE OF CONTENTS
Table of Authorities …………………………………………………………….……………....................................................…. 3
Preliminary Statement ………………………………………………....................................................………….………….…. 4
Statement of Facts …………………………………………………….....................................................………….……………… 5
Argument
Defendant Has Failed to Show that the Eleventh Amendment is Universally Applicable to Lawsuits in Federal Courts .. 10
There is Sufficient Evidence to Show That Defendant Violated a “Clearly Established” First Amendment Right .... 10
Defendant is Not Entitled to Qualified Immunity ……………………………....................................................…… 13
There is Sufficient Evidence to State a Claim Under 42 U.S.C. § 1983 ……..................................................… 13
Conclusion …………………………………………………………………………….....……...................................................….. 14
TABLE OF AUTHORITIES
CASES
Brown v. Coach Stores, 163 F.3d 706 (2d Cir. 1998) ………………………………..........................................……… 12
Dube v. State University of New York, 900 F.2d 587 (2d Cir. 1990) ……………..............................……….....… 10
Garcia v. S.U.N.Y. Health Sciences Center of Brooklyn, 280 F.3d 98 (2001) ………..............................…….... 10
Hunter v. Bryant, 502 U.S. 224 (1991) ………………………………………………..............................................……… 11
Kotcher v. Rosa and Sullivan Appliance Ctr., Inc., 957 F.2d 59 (2d Cir. 1992) …………..............................…. 12
Malley v. Briggs, 475 U.S. 335, 341 (1986) ……………………………………................…………..............................… 11
Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986) ……………………………………….......................................... 11
Monell v. Department of Social Servs., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978) ......................... 13
Pisello v. Town of Brookhaven, 933 F.Supp. 202 (E.D.N.Y. 1996) ………………………....................................… 13
Vippolis v. Village of Haverstraw, 768 F.2d 40 (2d Cir. 1985), cert. denied, 480 U.S. 916 107
S.Ct. 1369, 94, .Ed 2d 685 (1987) …………………………………………………….....................................................… 13
UNITED STATES CONSTITUTION
First Amendment ………………………………………………………................................................…….…….. 2, 10, 11, 13
Eleventh Amendment …………………………………………………………………...................................................….. 2, 10
Fourteenth Amendment …………………………………………………………....................................................…………. 12
FEDERAL STATUTES
42 U.S.C. § 1983 ……………………………………………………………………....................................................…… 2, 4, 13
42 U.S.C § 1985 ……………………………………………………………………......................................................…………... 4
42 U.S.C. § 1986 ………………………………………………………………………….......................................................……. 4
FEDERAL RULES AND REGULATIONS
Fed. R. Civ. P. 56 ……………………………………………………………….....................................................……………... 10
EXHIBITS
Exhibits referred to herein are annexed to the Declaration by Tibor Gasparik dated January 12, 2007.
PRELIMINARY STATEMENT
This Memorandum of Law is submitted by Plaintiff pro se, Tibor Gasparik, in opposition to the Defendant’s, Stony Brook University’s, Motion for Summary Judgment.
The Plaintiff commenced this action on August 11, 2005. The Defendant served the answer on or about September 9, 2005. In his action, Plaintiff raises a claim arising under 42 U.S.C. section 1983, relating to the deprivation of his free association rights. Additionally, this raises a supplemental claim that the Defendant violated 42 U.S.C. sections 1985 and 1986, relating to conspiracy and neglect to prevent conspired wrongs by the Defendant’s employees, respectively.
STATEMENT OF FACTS
On April 1, 1985, Plaintiff was hired in a research faculty position by the Department of Earth and Space Sciences (now Department of Geosciences), Stony Brook University, by professors Robert C. Liebermann, Donald J. Weidner, and Charles T. Prewitt, to help them set up a new and unique high-pressure research lab, because the principal investigators had only limited or no first-hand experience in high-pressure research. When hired, the Plaintiff was promised that he would be treated as equal and that his position would become permanent. Plaintiff believed that this promise represented a firm commitment by the Department, in fact, a verbal contract. Prewitt soon left to become a director of the Geophysical Lab in Washington, D.C.
As soon as Plaintiff succeeding in 1987 to make the new lab work, and trained enough students and post-docs in the procedures and techniques that he had developed, Liebermann and Weidner initiated a series of incidents with the intention of making Plaintiff’s work difficult and life miserable, and thus to force him to quit his employment (Exhibit “A”):
1. In 1988, Liebermann invited a known bully, David Walker, ostensibly to do research in the new lab in cooperation with Plaintiff. When Plaintiff refused to be bullied, Walker predictably wrote a series of nasty letters accusing him of being unhelpful and to discredit him (E-1, E-3, E-4, E-6, E-7).
2. When it became apparent in January 1992 that the first incident had failed in making Plaintiff quit, Liebermann placed a secretary who smoked, Ann Lattimore, next to his office. In the previous 3 years, the secretary occupied, on a temporary basis, the same office, and Plaintiff repeatedly complained to Liebermann about her smoking; thus he knew very well that second-hand smoke bothered Plaintiff. Raised in a family of heavy smokers, Plaintiff had become sensitive to second-hand smoke, which was made clear to Liebermann in one of his letters (E-9). Plaintiff believes that this incident was again intended to make his life miserable and thus force him to leave the employment on his own volition by exposing him to physically harmful working conditions. Not even an appeal to the Office of Human Resources would solve this problem (E-10). This appeal was Plaintiff’s first experience in making him realize that the Defendant had a policy of not addressing grievances. As a consequence, Plaintiff was exposed to second-hand smoke for 5 years.
3. To marginalize Plaintiff, Liebermann and Weidner stonewalled his efforts to actively participate in plannings and developments. Despite their initial promise to treat him as equal, Plaintiff had become a mere technician.
4. To isolate Plaintiff and make his work difficult, several faculty and staff members participated in efforts to intimidate those students and staff members that became closely associated with, or were particularly helpful to, Plaintiff (e.g. E-11), which resulted in one case in a constructive dismissal: An employee of the machine shop, Ed Vorisek, was forced into an early retirement.
5. As Liebermann and collaborating senior faculty members became more frustrated in not being able to make Plaintiff leave, they apparently again solicited help from outside to undermine Plaintiff’s research funding. This became possible when one of their allies, professor Alexandra Navrotsky, was selected to serve on a National Science Foundation panel that evaluated and recommended research proposals for funding. As a consequence, the funding for Plaintiff’s 3 consecutive research proposals was denied.
6. Another series of incidents occurred in 1999 (E 12-22). Plaintiff now believes that the efforts to force him to leave escalated because he inadvertently disclosed at the end of 1998 that he voted in midterm elections for the former Senator, Alfonse D’Amato. This occurred at one of the regular lunches in Rm. 117 during, what Plaintiff viewed at that time was, friendly chat with professors Weidner and Parise.
7. In a private meting on February 18, 2000 (E-18), Lieberman and Weidner informed Plaintiff that they were asking all members of the research staff to look for other employment opportunities in view of the uncertain outlook for future funding. At the same meeting, Weidner discouraged Plaintiff from applying for a new faculty position in reference to then ongoing search with the words: “You can apply but they don’t want you,” meaning under “they” the faculty members at the Department.
8. On August 27, 2001, Plaintiff appealed in a letter to the faculty members at the Department to honor their commitment to a permanent position that they had made to Plaintiff 17 years earlier (E-25). In the reply from September 10, 2001, the Chair, Scott M. McLennen, informed Plaintiff that the Department would not honor the promise, and placed the blame on Plaintiff because he “chose not to apply” for the last faculty position (E-26). This was a dishonest answer in view of all prior incidents of discouragement.
9. On January 31, 2002, Plaintiff was terminated, in gross violation of his true seniority status, and under the excuse that the project had ended (E-28). It has since become evident that he was the only scientist terminated under this excuse, despite being the most senior and most productive and accomplished member of the research staff, and a top-performing faculty member as well (E-29). In view of the overwhelming evidence for the leftist domination of Academia (Exhibit “D”), Plaintiff does not believe this to be a coincidence: that a refugee from communism, therefore an anti-communist and, therefore most likely a conservative, would be the only scientist dismissed, while the scientists from the communist China retained their positions, including Jiuhua Chen, Baosheng Li, Jianzong Zhang and Liping Wang.
10. Despite his record as a world-class scientist (Exhibit “B”), all subsequent Plaintiff’s efforts to find a faculty position elsewhere, secure research funding from outside sources, or find an alternate source of income at the Department and University, have been unsuccessful and apparently sabotaged by his colleagues at the Department and their allies in the scientific community (E-32-34). University administrators refused to address Plaintiff’s grievances (E-38-42, E-52, E-53). After exhausting all other venues to bring attention to his plight and find remedy, Plaintiff posted a Web site summarizing the evidence of his persecution (E-58). In retaliation, his name was removed from the list of faculty members on the departmental Web site, and he was forced to vacate his office at the Department (E-59). Only then did Plaintiff turn to the legal system for justice, and filed the Complaint in this case (E-60).
For many years, Plaintiff searched in vain for an explanation for the startling discrepancy between his superior performance and accomplishments as a scientist (Exhibit “B”), and the indifferent or hostile behavior by his colleagues at the Department of Geosciences (Exhibit “A”). Several of his colleagues at the Department devoted extraordinary amounts of time and effort to a single goal: forcing Plaintiff to leave.
In the last few years, it has become obvious that most universities and colleges in the United States discriminate against conservative professors in hiring, retention and promotion (Exhibit “D”). This fact is based on, by now, overwhelming evidence from surveys (Links 1, 2, 5, 7, 13, 32), voter registration records (Link 8), voting records (Link 4) and political donations (Links 63, 64). Stony Brook University has a record of belonging to more extreme of the institutions of higher education in its liberal policies and liberal bias. For example, only 18% of the university employees voted for President Bush in the last presidential elections on November 2, 2004 (Link 4).
Plaintiff has never tried to hide his conservative views nor his record of voting for Republican candidates, but cannot name any faculty member or other university professor who is not a liberal. In fact, Plaintiff believes that all faculty members at the Department of Geosciences are registered Democrats. Plaintiff does not even have the option of pretending to be a liberal, because it is widely known among his peers in the scientific community that he is a refugee from communism, therefore, an anti-communist; in fact, he is a registered Republican. Plaintiff believes this to be the sole reason for the discrimination against him, and for the acts of persecution by his colleagues at the Department, university administrators, and other members of the scientific community.
The most likely reason for the Plaintiff’s persecution has only recently become evident, when some liberal professors started offering explanations for the near absence of conservative professors at the American universities and colleges, such as:
1. Fewer conservatives than liberals are willing to endure the many years of poverty-stricken graduate study necessary to qualify for a faculty position (Link 3).
2. Conservatives are smarter than liberals and recognize that graduate school is a poor investment, given the scant job opportunities that await newly minted PhDs (Link 3).
3. Studious conservatives are more attracted to the greater financial rewards of industry and commerce (Link 3).
4. Lefties are overrepresented in academia because on average, we’re just smarter (Link 9).
5. If stupid people are generally conservative, then there are lots of conservatives we will never hire (Link 9).
6. A successful career in academia requires willingness to be critical of yourself and to learn from experience, qualities that conservatives (apparently) do not possess (Link 9).
7. Conservatives simply do not want to teach in high-quality places: “We offer self selection as the likely culprit” (Link 9).
8. Conservative academics prefer rural and out of way places, where they find a congenial ideological climate to the vibrant and cosmopolitan life of the major cities where the most prestigious universities are located (Link 9).
9. Many conservatives deliberately choose not to seek employment at top-tier research institutions because they object, on philosophical grounds, to one of the fundamental tenets under-girding such institutions: the scientific method (Link 9).
10. Most conservatives prefer the much higher daily pressures, the ever-demanding and intrusive bosses, and much shorter vacations of the business world to the idyllic existence of the academic life (Link 9).
While not all of these explanations represent serious arguments, the general public not familiar with the academic culture might be willing to accept the premise that conservatives prefer to leave academia for the “better paying” jobs in industry. This appears to be the official explanation that the liberal scientific community apparently prepared in advance as the most credible explanation to offer when the general public starts noticing the absence of conservatives in the Academia. This explanation implies willingness on the part of a conservative professor to leave “voluntarily,” and places the blame on the professor for leaving. But what happens if a conservative professor does not possess the “wisdom” of leaving for the better paying jobs in industry, as applicable in this case? Then his colleagues are willing to do their best to convince him by any means possible that leaving the academic life is the right thing to do.
ARGUMENT
1. DEFENDANT HAS FAILED TO SHOW THAT THE ELEVENTH AMENDEMENT IS UNIVERSALLY APPLICABLE TO LAWSUITS
IN FEDERAL COURTS
(In Response to Defendant’s Point I)
There are examples too numerous to cite of lawsuits brought by private parties in federal courts against state universities. Because this line of defense succeeded in Dube v. State University of New York, 900 F.2d 587,594 (2nd Cir. 1990) and in Garcia v. SUNY Health Sciences Center of Brooklyn, 280 F.3d 98, 107 (2001), it has obviously not been a sufficient ground for dismissal in many other cases.
2. THERE IS SUFFICIENT EVIDENCE TO SHOW THAT DEFENDANT VIOLATED A “CLEARLY ESTABLISHED” FIRST AMEDMENT RIGHT
(In Response to Defendant’s Points II and III)
The lines of defense in Points II and III are based solely on the alleged Plaintiff’s claim presented by the Defendant as “a material fact not in dispute” (Fact # 9 in “Statement Pursuant to Local Rule 56.1”): “The sole basis for this lawsuit is that Plaintiff believes he was terminated because he did not adhere to the ‘philosophy of research’ of the scientists employed by the Defendant,” based on Plaintiff’s deposition, p. 112-116. This line of defense is either intentionally misleading, or may reflect limited understanding of the academic culture in research and science by the Assistant Attorney General. As an Associate Professor, Plaintiff was in no way required to adhere, feel limited, or pay attention to anybody else’s preferred “philosophy of research,” nor would any of his colleagues presume that they had the authority in this stage of the Plaintiff’s career to direct him how to do research, nor were evidently willing to warn him for not adhering to their philosophy. The cited passages from the Plaintiff’s deposition only reveal how easy it is to identify a conservative scientist and professor. Plaintiff was terminated not because “he did not adhere to the philosophy of research of the scientists employed by the Defendant,” but because his “philosophy of research” only confirmed to his colleagues the suspicion that he was a conservative. This point is somewhat academic, since Plaintiff has always been suspected of being a conservative from the well-known fact that he is a refugee from communism. Thus the Defendant’s claim that nobody “acting on behalf of the Defendant was even aware of Plaintiff’s ideological viewpoint” lacks credibility. There is more than sufficient evidence to show, as summarized in Exhibit “A”, that Defendant’s employees persecuted Plaintiff over a period of many years with the intention of forcing him to leave the Academia on his own volition, and finally decided to dismiss him when they failed to achieve this preferred outcome. The evidence summarized in Exhibit “D” is now overwhelming that most American universities and colleges discriminate against conservatives in hiring and promotion, thus confirming beyond any reasonable doubt that the true and only cause for Plaintiff’s persecution and dismissal was his suspected, and later self-admitted, political orientation, and thus that the Defendant violated Plaintiff’s right of Free Association protected under the First Amendment of the United States Constitution.
The Defendant also makes a claim to cloud the issue that: “ Even after repeated questioning at his deposition, it is unclear exactly which ‘speech’ Plaintiff is claiming is protected under the First Amendment.” Here the Defendant apparently pretends not to know that the First Amendment protects 5 freedoms. The Plaintiff has made it abundantly clear that he accuses the Defendant of violating his Freedom of Association. However, the last incident in his persecution in response to Plaintiff’s posting in June 2005 of a Web site detailing his persecution, when the faculty members or university administrators retaliated against Plaintiff in July 2005 by taking his name of the list of faculty members on the departmental Web site, ordering him to vacate his office in Rm. 336 of the ESS building, and removing his mail box so he could no longer receive mail at the Department and thus have an excuse to even visit the Department (E-59), was clearly a violation of the Plaintiff’s Freedom of Speech.
The Defendant also brings up “the objective reasonableness test,” claiming that “even assuming a state official violates a plaintiff’s clearly established constitutional rights, the official is protected if he objectively and reasonably believed that he was acting lawfully. See Hunter v. Bryant, 502 U.S. 224, 229 (1991) (“The qualified immunity standard ‘gives ample room for mistaken judgments’ by protecting ‘all but the plainly incompetent or those who knowingly violate the law.”) (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)). However, The Supreme Court ruled in Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986), that an employer could be held liable for damages if management had tolerated a hostile work environment affecting a particular class of employees, even in absence of any intent to harm.
Another argument the Defendant brings forth is that “even if Defendant were aware of Plaintiff’s personal viewpoint with respect to research, Defendant has the right to hire, retain and promote scientists whom will further the research goals of the institution.” Since the Defendant in this case is the State, the State of New York apparently reserves the right to discriminate against conservatives in hiring, retention and promotion if this “will further the research goals of” an institution. This policy violates the Fourteenth Amendment, Section 1, which states:
“All persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law, which shall abridge the privileges or immunities of citizens of the United States …).”
Finally, the Defendant claims: “There has been no showing by Plaintiff that harassment was pervasive. There has been no showing by Plaintiff of specific facts that would lead a reasonable jury to conclude that he had been subjected to a hostile work environment. Plaintiff also failed to allege that the remarks unreasonably interfered with his job performance. See Kotcher v. Rosa and Sullivan Appliance Ctr., Inc., 957 F.2d 59, 62-63 (2d Cir. 1992); Brown v. Coach Stores, 163 F. 3d 706, 713 (2d Cir. 1998). In light of this, Plaintiff’s claim of hostile environment must be dismissed.” The Defendant keeps ignoring the extensive documentation annexed with the document titled “Account of my Persecution” (Exhibit “A”), which details the 20 years of persecution by his colleagues at the Department, and which was submitted to the Defendant in February 2006. Plaintiff believes that the evidence presented in Exhibit “A” is more than sufficient to show that Plaintiff’s harassment was pervasive, contains specific facts that would lead any reasonable jury to conclude that he had been subjected to a hostile work environment, and that these hostile acts seriously interfered with his job performance. In light of this, Plaintiff’s claim of hostile environment must be upheld.
3. DEFENDANT IS NOT ENTITLED TO QUALIFIED IMMUNITY
(In Response to Defendant’s Point IV)
The line of defense in Point IV is based solely on the alleged Plaintiff’s claim that the Defendant only violated Plaintiff’s Freedom of Speech. As already mentioned, Plaintiff has made it abundantly clear that he primarily accuses the Defendant of violating his Freedom of Association, which is equally protected under the First Amendment of the United States Constitution.
4. THERE IS SUFFICIENT EVIDENCE TO STATE A CLAIM UNDER 42 U.S.C. § 1983
(In Response to Defendant’s Point V)
The line of defense in Point V is based on the following claims: “Municipalities are subject to liability under section 1983 for alleged violations of an individual’s constitutional rights resulting from a municipal policy or custom. See, Monell v. Department of Social Servs., 436 U.S. 658, 98 S.Ct. 2018, 56 Led.2d 611 (1978), Pisello v. Town of Brookhaven, 933 F.Supp. 202, 209 (E.D.N.Y. 1996). A plaintiff must first prove the existence of a municipal policy or custom that caused her injuries, and must establish a causal connection between the policy and the alleged civil rights violation. Vippolis v. Village of Haverstraw, 768 F.2d 40, 44 (2d Cir. 1985), cert. denied, 480 U.S. 916, 107 S.Ct. 1369, 94 L.Ed 2d 658 (1987),” and other less relevant claims. The Defendant concludes: “Plaintiff has not alleged the existence of a municipal policy or custom in order to impose municipal liability under § 1983.”
There are at least two unwritten policies or customs in existence that are relevant to Plaintiff’s case and to his claim under 42 U.S.C. § 1983:
1. The custom of clandestine discrimination in hiring, retention and promotion against conservatives by most universities and colleges in the United States, including Stony Brook University. The supporting evidence summarized by Plaintiff in Exhibit “D” and confirmed by Plaintiff’s experience shows that this policy or custom has been in effect for at least 30 years, and has resulted in near absence of conservative professors in the Academia.
2. The custom of not addressing complaints from students and professors. In Plaintiff’s experience, this is evident from the fact that the Director of Human Resources at Stony Brook University, Lynn Johnson, was unable to produce a single document showing that a formal investigation had been carried out in response to Plaintiff’s complaint. The absence of formal grievance procedures at New York State universities and colleges, and the general reluctance by administrators to meaningfully address complaints from students and professors, have already been recognized as serious problems by the legislators, and led to introduction in early 2006 of an Academic Bill of Rights as S.6336 in the New York State Senate by 10 Senators, followed by the sponsorship of the same bill in the Assembly as A.10098 by 6 Assembly members (Link 70). Although, the legislative lame-duck session failed to act on the bill in 2006, the bill is almost certain to be re-introduced in 2007, and the former Attorney General in this case, now a new Governor of New York, may have the opportunity of signing it into law.
CONCLUSION
On the basis of the foregoing, the Defendant’s motion for summary judgment should be denied in its entirety.
Dated: Holtsville, New York
January 12, 2007
_____________________________
Tibor Gasparik
Plaintiff pro se, and
Research Associate Professor
352 Plad Blvd
Holtsville, New York 11742
(631) 447-2168
TO: Lori L. Pack
Office of the Attorney General
300 Motor Parkway, Suite 205
Hauppauge, NY 11788
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
------------------------------------------------------- X
TIBOR GASPARIK,
Plaintiff,
-against-
STONY BROOK UNIVERSITY
Defendant.
------------------------------------------------------- X
CV-05-03817 (SJF)
DECLARATION
TIBOR GASPARIK, Plaintiff pro se, affirms the following under penalties of perjury:
1. I am Plaintiff pro se in this action, and this affirmation is submitted in opposition to the Defendant’s motion for summary judgment pursuant to Federal Rule of Civil Procedure 56.
2. I am fully familiar with all of the facts and circumstances in this case.
3. It is Plaintiff’s position that the sole reason that the Plaintiff was persecuted and eventually terminated from employment by the Defendant was his political orientation.
4. The annexed exhibits are relevant to and are referenced in the Plaintiff’s Statement of Undisputed Facts and Memorandum of Law submitted in opposition to the Defendant’s motion for summary judgment.
5. Annexed hereto as Exhibit “A” is the document titled “Account of my Persecution,” with the selected supporting documentation labeled as (Exhibit) E-1 to E-60.
6. Annexed hereto as Exhibit “B” is the document titled “Credentials and Accomplishments,” with the selected supporting documentation labeled as (Exhibit) E-61 to E-100.
7. Annexed hereto as Exhibit “C” is the document titled “E-mails relevant to the teaching position at the Ralph G. Reed Middle School in the Central Islip School District.”
8. Annexed hereto as Exhibit “D” is the document titled “Discrimination in Academia: End of 2006 Review,” with the selected supporting documentation labeled as (Link) L-1 to L-70.
9. Referenced pages from the transcript of Plaintiff’s Deposition are annexed to the Defendant’s moving papers.
10. The exhibits listed above are being filed in hard copy and will be maintained in the case file in the Clerk’s Office. The exhibits and complete supporting documentation are also accessible on the Plaintiff’s Web site “Tibor Gasparik - Discrimination in Academia” (http://suny-stonybrook.blogspot.com/).
WHEREFORE, it is respectfully requested from this Court that the Defendant’s motion for summary judgment is denied in its entirety.
Dated: Holtsville, New York
January 12, 2007
_____________________________
Tibor Gasparik
Plaintiff pro se, and
Research Associate Professor
352 Plad Blvd
Holtsville, New York 11742
(631) 447-2168
TO: Lori L. Pack
Office of the Attorney General
300 Motor Parkway, Suite 205
Hauppauge, NY 11788
____________________________________________________________________________________
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
------------------------------------------------------- X
TIBOR GASPARIK,
Plaintiff,
-against-
STONY BROOK UNIVERSITY
Defendant.
------------------------------------------------------- X
CV-05-03817 (SJF)
STATEMENT PURSUANT TO LOCAL RULE 56.1
Plaintiff pro se, TIBOR GASPARIK, submits, pursuant to Local Rule 56.1, the following statement of material facts, in which he contends that there exists a genuine issue to be tried:
1. Plaintiff was employed from April 1, 1985, to January 31, 2002, as Lab Manager and Research Associate Professor at the Department of Geosciences, Stony Brook University.
2. Plaintiff has always received the highest evaluations and performed research at the levels that could be rated among the best in the world by any standards of scholarly achievement. This was summarized in the document: “Credentials and Accomplishments” (Exhibit “B” attached to Plaintiff’s Declaration, with the supporting documentation: E-61 to E-100).
3. However, for most of his employment, Plaintiff was subject to a series of hostile actions by his superiors, employees of the University, with the clear intention of making his work difficult and life miserable and thus to force him to leave the employment. This was summarized in the document: “Account of my Persecution” (Exhibit “A” attached to Plaintiff’s Declaration, with the supporting documentation: E-1 to E-60).
4. When these actions failed, Plaintiff was dismissed on January 31, 2002, in gross violation of his true seniority status and under the excuse that “the project has ended” (E-28).
5. Yet, despite being the most senior and most valuable and accomplished scientist among all scientists participating in the project (E-29/1), and could be rated as one of the best faculty members (E-29/2), Plaintiff was the only one dismissed under this excuse.
6. Although Plaintiff retained his position as Research Associate Professor at the Department of Geosciences, the Department would not consider him for any employment that could provide salary.
7. Attempts to secure research funding and salary from the National Science Foundation (NSF) were apparently sabotaged by his former superiors at the Department (E-33). This has also become evident from the fact that the NSF stopped sending him research proposal for review immediately following the dismissal (E-35).
8. Plaintiff’s complaints to the Provost (E-38) and President (E-40, E-52) of the Stony Brook University were stonewalled.
9. To obtain an alternative source of income, Plaintiff completed at the same University a Masters of Art in Teaching (MAT) degree in Earth Science in May 2005, and hoped to start a new career as secondary school teacher (E-63).
10. Plaintiff was promised a leave of replacement position at Ralph G. Reed Middle School in Central Islip, following completion of all requirements and satisfactory performance as student teacher between March and May 2005 (Exhibit “C” attached to Plaintiff’s Declaration).
11. The University promised to expedite the certification process following satisfactory completion of all requirements. Instead, the University delayed issuing a letter to that effect, which resulted in the loss of this employment opportunity (Exhibit “C”).
12. When Plaintiff posted in June 2005 a Web site summarizing his persecution, the University and the Department retaliated, in violation of the First Amendment, by taking his name off the list of faculty members posted on the departmental Web site, and ordered him to vacate his office (E-59).
13. Because this action made it extremely difficult or nearly impossible for Plaintiff to continue in his efforts to secure research funding, further contribute to the advancement of science, and restart his former career as scientist and professor, he was forced to seek justice through the legal system and filed a complaint at the United States District Court in Central Islip on August 11, 2005 (E-60).
14. For many years Plaintiff searched in vain for an explanation for the startling discrepancy between his superior performance and accomplishments as a scientist (Exhibit “B”), and the indifferent or hostile behavior by his colleagues at the Department of Geosciences (Exhibit “A”). Several of his colleagues at the Department devoted extraordinary amounts of time and effort to a single goal: forcing him to leave.
15. In the last few years, it has become obvious that most universities and colleges in the United States discriminate against conservative professors in hiring, retention and promotion. This was summarized in the document “Discrimination in Academia: End of 2006 Review” (Exhibit ”D” attached to Plaintiff’s Declaration, with the supporting documentation: Links 1-70).
16. This fact is based on, by now, overwhelming evidence from surveys (Links 1, 2, 5, 7, 13, 32), voter registration records (Link 8), voting records (Link 4) and political donations (Links 63, 64).
17. Stony Brook University has a record of belonging to more extreme of the institutions of higher education in its liberal policies and liberal bias. For example, only 18% of the university employees voted for President Bush in the last presidential elections on November 2, 2004 (Link 4).
18. Plaintiff has never tried to hide his conservative views nor his record of voting for Republican candidates, but cannot name any faculty member or other university professor who is not a liberal. In fact, Plaintiff believes that all faculty members at the Department are registered Democrats.
19. Plaintiff does not even have the option of pretending to be a liberal, because it is widely known among his peers in the scientific community that he is a refugee from communism, therefore, labeled and blacklisted as anti-communist; in fact, he is a registered Republican.
20. Plaintiff believes that his political orientation was the sole reason for the acts of persecution by his colleagues at the Department of Geosciences and by the University administrators, and for the termination of his employment.
Dated: Holtsville, New York
January 12, 2007
_____________________________
Tibor Gasparik
Plaintiff pro se, and
Research Associate Professor
352 Plad Blvd
Holtsville, New York 11742
(631) 447-2168
TO: Lori L. Pack
Office of the Attorney General
300 Motor Parkway, Suite 205
Hauppauge, NY 11788
____________________________________________________________________________________
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
------------------------------------------------------- X
TIBOR GASPARIK,
Plaintiff,
-against-
STONY BROOK UNIVERSITY
Defendant.
------------------------------------------------------- X
CV-05-03817 (SJF)
PLAINTIFF’S MEMORANDUM OF LAW IN OPPOSITION TO DEFENDANT’S MOTION
FOR SUMMARY JUDGMENT
Tibor Gasparik
Plaintiff pro se, and
Research Associate Professor
352 Plad Blvd
Holtsville, New York 11742
(631) 447-2168
TABLE OF CONTENTS
Table of Authorities …………………………………………………………….……………....................................................…. 3
Preliminary Statement ………………………………………………....................................................………….………….…. 4
Statement of Facts …………………………………………………….....................................................………….……………… 5
Argument
Defendant Has Failed to Show that the Eleventh Amendment is Universally Applicable to Lawsuits in Federal Courts .. 10
There is Sufficient Evidence to Show That Defendant Violated a “Clearly Established” First Amendment Right .... 10
Defendant is Not Entitled to Qualified Immunity ……………………………....................................................…… 13
There is Sufficient Evidence to State a Claim Under 42 U.S.C. § 1983 ……..................................................… 13
Conclusion …………………………………………………………………………….....……...................................................….. 14
TABLE OF AUTHORITIES
CASES
Brown v. Coach Stores, 163 F.3d 706 (2d Cir. 1998) ………………………………..........................................……… 12
Dube v. State University of New York, 900 F.2d 587 (2d Cir. 1990) ……………..............................……….....… 10
Garcia v. S.U.N.Y. Health Sciences Center of Brooklyn, 280 F.3d 98 (2001) ………..............................…….... 10
Hunter v. Bryant, 502 U.S. 224 (1991) ………………………………………………..............................................……… 11
Kotcher v. Rosa and Sullivan Appliance Ctr., Inc., 957 F.2d 59 (2d Cir. 1992) …………..............................…. 12
Malley v. Briggs, 475 U.S. 335, 341 (1986) ……………………………………................…………..............................… 11
Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986) ……………………………………….......................................... 11
Monell v. Department of Social Servs., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978) ......................... 13
Pisello v. Town of Brookhaven, 933 F.Supp. 202 (E.D.N.Y. 1996) ………………………....................................… 13
Vippolis v. Village of Haverstraw, 768 F.2d 40 (2d Cir. 1985), cert. denied, 480 U.S. 916 107
S.Ct. 1369, 94, .Ed 2d 685 (1987) …………………………………………………….....................................................… 13
UNITED STATES CONSTITUTION
First Amendment ………………………………………………………................................................…….…….. 2, 10, 11, 13
Eleventh Amendment …………………………………………………………………...................................................….. 2, 10
Fourteenth Amendment …………………………………………………………....................................................…………. 12
FEDERAL STATUTES
42 U.S.C. § 1983 ……………………………………………………………………....................................................…… 2, 4, 13
42 U.S.C § 1985 ……………………………………………………………………......................................................…………... 4
42 U.S.C. § 1986 ………………………………………………………………………….......................................................……. 4
FEDERAL RULES AND REGULATIONS
Fed. R. Civ. P. 56 ……………………………………………………………….....................................................……………... 10
EXHIBITS
Exhibits referred to herein are annexed to the Declaration by Tibor Gasparik dated January 12, 2007.
PRELIMINARY STATEMENT
This Memorandum of Law is submitted by Plaintiff pro se, Tibor Gasparik, in opposition to the Defendant’s, Stony Brook University’s, Motion for Summary Judgment.
The Plaintiff commenced this action on August 11, 2005. The Defendant served the answer on or about September 9, 2005. In his action, Plaintiff raises a claim arising under 42 U.S.C. section 1983, relating to the deprivation of his free association rights. Additionally, this raises a supplemental claim that the Defendant violated 42 U.S.C. sections 1985 and 1986, relating to conspiracy and neglect to prevent conspired wrongs by the Defendant’s employees, respectively.
STATEMENT OF FACTS
On April 1, 1985, Plaintiff was hired in a research faculty position by the Department of Earth and Space Sciences (now Department of Geosciences), Stony Brook University, by professors Robert C. Liebermann, Donald J. Weidner, and Charles T. Prewitt, to help them set up a new and unique high-pressure research lab, because the principal investigators had only limited or no first-hand experience in high-pressure research. When hired, the Plaintiff was promised that he would be treated as equal and that his position would become permanent. Plaintiff believed that this promise represented a firm commitment by the Department, in fact, a verbal contract. Prewitt soon left to become a director of the Geophysical Lab in Washington, D.C.
As soon as Plaintiff succeeding in 1987 to make the new lab work, and trained enough students and post-docs in the procedures and techniques that he had developed, Liebermann and Weidner initiated a series of incidents with the intention of making Plaintiff’s work difficult and life miserable, and thus to force him to quit his employment (Exhibit “A”):
1. In 1988, Liebermann invited a known bully, David Walker, ostensibly to do research in the new lab in cooperation with Plaintiff. When Plaintiff refused to be bullied, Walker predictably wrote a series of nasty letters accusing him of being unhelpful and to discredit him (E-1, E-3, E-4, E-6, E-7).
2. When it became apparent in January 1992 that the first incident had failed in making Plaintiff quit, Liebermann placed a secretary who smoked, Ann Lattimore, next to his office. In the previous 3 years, the secretary occupied, on a temporary basis, the same office, and Plaintiff repeatedly complained to Liebermann about her smoking; thus he knew very well that second-hand smoke bothered Plaintiff. Raised in a family of heavy smokers, Plaintiff had become sensitive to second-hand smoke, which was made clear to Liebermann in one of his letters (E-9). Plaintiff believes that this incident was again intended to make his life miserable and thus force him to leave the employment on his own volition by exposing him to physically harmful working conditions. Not even an appeal to the Office of Human Resources would solve this problem (E-10). This appeal was Plaintiff’s first experience in making him realize that the Defendant had a policy of not addressing grievances. As a consequence, Plaintiff was exposed to second-hand smoke for 5 years.
3. To marginalize Plaintiff, Liebermann and Weidner stonewalled his efforts to actively participate in plannings and developments. Despite their initial promise to treat him as equal, Plaintiff had become a mere technician.
4. To isolate Plaintiff and make his work difficult, several faculty and staff members participated in efforts to intimidate those students and staff members that became closely associated with, or were particularly helpful to, Plaintiff (e.g. E-11), which resulted in one case in a constructive dismissal: An employee of the machine shop, Ed Vorisek, was forced into an early retirement.
5. As Liebermann and collaborating senior faculty members became more frustrated in not being able to make Plaintiff leave, they apparently again solicited help from outside to undermine Plaintiff’s research funding. This became possible when one of their allies, professor Alexandra Navrotsky, was selected to serve on a National Science Foundation panel that evaluated and recommended research proposals for funding. As a consequence, the funding for Plaintiff’s 3 consecutive research proposals was denied.
6. Another series of incidents occurred in 1999 (E 12-22). Plaintiff now believes that the efforts to force him to leave escalated because he inadvertently disclosed at the end of 1998 that he voted in midterm elections for the former Senator, Alfonse D’Amato. This occurred at one of the regular lunches in Rm. 117 during, what Plaintiff viewed at that time was, friendly chat with professors Weidner and Parise.
7. In a private meting on February 18, 2000 (E-18), Lieberman and Weidner informed Plaintiff that they were asking all members of the research staff to look for other employment opportunities in view of the uncertain outlook for future funding. At the same meeting, Weidner discouraged Plaintiff from applying for a new faculty position in reference to then ongoing search with the words: “You can apply but they don’t want you,” meaning under “they” the faculty members at the Department.
8. On August 27, 2001, Plaintiff appealed in a letter to the faculty members at the Department to honor their commitment to a permanent position that they had made to Plaintiff 17 years earlier (E-25). In the reply from September 10, 2001, the Chair, Scott M. McLennen, informed Plaintiff that the Department would not honor the promise, and placed the blame on Plaintiff because he “chose not to apply” for the last faculty position (E-26). This was a dishonest answer in view of all prior incidents of discouragement.
9. On January 31, 2002, Plaintiff was terminated, in gross violation of his true seniority status, and under the excuse that the project had ended (E-28). It has since become evident that he was the only scientist terminated under this excuse, despite being the most senior and most productive and accomplished member of the research staff, and a top-performing faculty member as well (E-29). In view of the overwhelming evidence for the leftist domination of Academia (Exhibit “D”), Plaintiff does not believe this to be a coincidence: that a refugee from communism, therefore an anti-communist and, therefore most likely a conservative, would be the only scientist dismissed, while the scientists from the communist China retained their positions, including Jiuhua Chen, Baosheng Li, Jianzong Zhang and Liping Wang.
10. Despite his record as a world-class scientist (Exhibit “B”), all subsequent Plaintiff’s efforts to find a faculty position elsewhere, secure research funding from outside sources, or find an alternate source of income at the Department and University, have been unsuccessful and apparently sabotaged by his colleagues at the Department and their allies in the scientific community (E-32-34). University administrators refused to address Plaintiff’s grievances (E-38-42, E-52, E-53). After exhausting all other venues to bring attention to his plight and find remedy, Plaintiff posted a Web site summarizing the evidence of his persecution (E-58). In retaliation, his name was removed from the list of faculty members on the departmental Web site, and he was forced to vacate his office at the Department (E-59). Only then did Plaintiff turn to the legal system for justice, and filed the Complaint in this case (E-60).
For many years, Plaintiff searched in vain for an explanation for the startling discrepancy between his superior performance and accomplishments as a scientist (Exhibit “B”), and the indifferent or hostile behavior by his colleagues at the Department of Geosciences (Exhibit “A”). Several of his colleagues at the Department devoted extraordinary amounts of time and effort to a single goal: forcing Plaintiff to leave.
In the last few years, it has become obvious that most universities and colleges in the United States discriminate against conservative professors in hiring, retention and promotion (Exhibit “D”). This fact is based on, by now, overwhelming evidence from surveys (Links 1, 2, 5, 7, 13, 32), voter registration records (Link 8), voting records (Link 4) and political donations (Links 63, 64). Stony Brook University has a record of belonging to more extreme of the institutions of higher education in its liberal policies and liberal bias. For example, only 18% of the university employees voted for President Bush in the last presidential elections on November 2, 2004 (Link 4).
Plaintiff has never tried to hide his conservative views nor his record of voting for Republican candidates, but cannot name any faculty member or other university professor who is not a liberal. In fact, Plaintiff believes that all faculty members at the Department of Geosciences are registered Democrats. Plaintiff does not even have the option of pretending to be a liberal, because it is widely known among his peers in the scientific community that he is a refugee from communism, therefore, an anti-communist; in fact, he is a registered Republican. Plaintiff believes this to be the sole reason for the discrimination against him, and for the acts of persecution by his colleagues at the Department, university administrators, and other members of the scientific community.
The most likely reason for the Plaintiff’s persecution has only recently become evident, when some liberal professors started offering explanations for the near absence of conservative professors at the American universities and colleges, such as:
1. Fewer conservatives than liberals are willing to endure the many years of poverty-stricken graduate study necessary to qualify for a faculty position (Link 3).
2. Conservatives are smarter than liberals and recognize that graduate school is a poor investment, given the scant job opportunities that await newly minted PhDs (Link 3).
3. Studious conservatives are more attracted to the greater financial rewards of industry and commerce (Link 3).
4. Lefties are overrepresented in academia because on average, we’re just smarter (Link 9).
5. If stupid people are generally conservative, then there are lots of conservatives we will never hire (Link 9).
6. A successful career in academia requires willingness to be critical of yourself and to learn from experience, qualities that conservatives (apparently) do not possess (Link 9).
7. Conservatives simply do not want to teach in high-quality places: “We offer self selection as the likely culprit” (Link 9).
8. Conservative academics prefer rural and out of way places, where they find a congenial ideological climate to the vibrant and cosmopolitan life of the major cities where the most prestigious universities are located (Link 9).
9. Many conservatives deliberately choose not to seek employment at top-tier research institutions because they object, on philosophical grounds, to one of the fundamental tenets under-girding such institutions: the scientific method (Link 9).
10. Most conservatives prefer the much higher daily pressures, the ever-demanding and intrusive bosses, and much shorter vacations of the business world to the idyllic existence of the academic life (Link 9).
While not all of these explanations represent serious arguments, the general public not familiar with the academic culture might be willing to accept the premise that conservatives prefer to leave academia for the “better paying” jobs in industry. This appears to be the official explanation that the liberal scientific community apparently prepared in advance as the most credible explanation to offer when the general public starts noticing the absence of conservatives in the Academia. This explanation implies willingness on the part of a conservative professor to leave “voluntarily,” and places the blame on the professor for leaving. But what happens if a conservative professor does not possess the “wisdom” of leaving for the better paying jobs in industry, as applicable in this case? Then his colleagues are willing to do their best to convince him by any means possible that leaving the academic life is the right thing to do.
ARGUMENT
1. DEFENDANT HAS FAILED TO SHOW THAT THE ELEVENTH AMENDEMENT IS UNIVERSALLY APPLICABLE TO LAWSUITS
IN FEDERAL COURTS
(In Response to Defendant’s Point I)
There are examples too numerous to cite of lawsuits brought by private parties in federal courts against state universities. Because this line of defense succeeded in Dube v. State University of New York, 900 F.2d 587,594 (2nd Cir. 1990) and in Garcia v. SUNY Health Sciences Center of Brooklyn, 280 F.3d 98, 107 (2001), it has obviously not been a sufficient ground for dismissal in many other cases.
2. THERE IS SUFFICIENT EVIDENCE TO SHOW THAT DEFENDANT VIOLATED A “CLEARLY ESTABLISHED” FIRST AMEDMENT RIGHT
(In Response to Defendant’s Points II and III)
The lines of defense in Points II and III are based solely on the alleged Plaintiff’s claim presented by the Defendant as “a material fact not in dispute” (Fact # 9 in “Statement Pursuant to Local Rule 56.1”): “The sole basis for this lawsuit is that Plaintiff believes he was terminated because he did not adhere to the ‘philosophy of research’ of the scientists employed by the Defendant,” based on Plaintiff’s deposition, p. 112-116. This line of defense is either intentionally misleading, or may reflect limited understanding of the academic culture in research and science by the Assistant Attorney General. As an Associate Professor, Plaintiff was in no way required to adhere, feel limited, or pay attention to anybody else’s preferred “philosophy of research,” nor would any of his colleagues presume that they had the authority in this stage of the Plaintiff’s career to direct him how to do research, nor were evidently willing to warn him for not adhering to their philosophy. The cited passages from the Plaintiff’s deposition only reveal how easy it is to identify a conservative scientist and professor. Plaintiff was terminated not because “he did not adhere to the philosophy of research of the scientists employed by the Defendant,” but because his “philosophy of research” only confirmed to his colleagues the suspicion that he was a conservative. This point is somewhat academic, since Plaintiff has always been suspected of being a conservative from the well-known fact that he is a refugee from communism. Thus the Defendant’s claim that nobody “acting on behalf of the Defendant was even aware of Plaintiff’s ideological viewpoint” lacks credibility. There is more than sufficient evidence to show, as summarized in Exhibit “A”, that Defendant’s employees persecuted Plaintiff over a period of many years with the intention of forcing him to leave the Academia on his own volition, and finally decided to dismiss him when they failed to achieve this preferred outcome. The evidence summarized in Exhibit “D” is now overwhelming that most American universities and colleges discriminate against conservatives in hiring and promotion, thus confirming beyond any reasonable doubt that the true and only cause for Plaintiff’s persecution and dismissal was his suspected, and later self-admitted, political orientation, and thus that the Defendant violated Plaintiff’s right of Free Association protected under the First Amendment of the United States Constitution.
The Defendant also makes a claim to cloud the issue that: “ Even after repeated questioning at his deposition, it is unclear exactly which ‘speech’ Plaintiff is claiming is protected under the First Amendment.” Here the Defendant apparently pretends not to know that the First Amendment protects 5 freedoms. The Plaintiff has made it abundantly clear that he accuses the Defendant of violating his Freedom of Association. However, the last incident in his persecution in response to Plaintiff’s posting in June 2005 of a Web site detailing his persecution, when the faculty members or university administrators retaliated against Plaintiff in July 2005 by taking his name of the list of faculty members on the departmental Web site, ordering him to vacate his office in Rm. 336 of the ESS building, and removing his mail box so he could no longer receive mail at the Department and thus have an excuse to even visit the Department (E-59), was clearly a violation of the Plaintiff’s Freedom of Speech.
The Defendant also brings up “the objective reasonableness test,” claiming that “even assuming a state official violates a plaintiff’s clearly established constitutional rights, the official is protected if he objectively and reasonably believed that he was acting lawfully. See Hunter v. Bryant, 502 U.S. 224, 229 (1991) (“The qualified immunity standard ‘gives ample room for mistaken judgments’ by protecting ‘all but the plainly incompetent or those who knowingly violate the law.”) (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)). However, The Supreme Court ruled in Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986), that an employer could be held liable for damages if management had tolerated a hostile work environment affecting a particular class of employees, even in absence of any intent to harm.
Another argument the Defendant brings forth is that “even if Defendant were aware of Plaintiff’s personal viewpoint with respect to research, Defendant has the right to hire, retain and promote scientists whom will further the research goals of the institution.” Since the Defendant in this case is the State, the State of New York apparently reserves the right to discriminate against conservatives in hiring, retention and promotion if this “will further the research goals of” an institution. This policy violates the Fourteenth Amendment, Section 1, which states:
“All persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law, which shall abridge the privileges or immunities of citizens of the United States …).”
Finally, the Defendant claims: “There has been no showing by Plaintiff that harassment was pervasive. There has been no showing by Plaintiff of specific facts that would lead a reasonable jury to conclude that he had been subjected to a hostile work environment. Plaintiff also failed to allege that the remarks unreasonably interfered with his job performance. See Kotcher v. Rosa and Sullivan Appliance Ctr., Inc., 957 F.2d 59, 62-63 (2d Cir. 1992); Brown v. Coach Stores, 163 F. 3d 706, 713 (2d Cir. 1998). In light of this, Plaintiff’s claim of hostile environment must be dismissed.” The Defendant keeps ignoring the extensive documentation annexed with the document titled “Account of my Persecution” (Exhibit “A”), which details the 20 years of persecution by his colleagues at the Department, and which was submitted to the Defendant in February 2006. Plaintiff believes that the evidence presented in Exhibit “A” is more than sufficient to show that Plaintiff’s harassment was pervasive, contains specific facts that would lead any reasonable jury to conclude that he had been subjected to a hostile work environment, and that these hostile acts seriously interfered with his job performance. In light of this, Plaintiff’s claim of hostile environment must be upheld.
3. DEFENDANT IS NOT ENTITLED TO QUALIFIED IMMUNITY
(In Response to Defendant’s Point IV)
The line of defense in Point IV is based solely on the alleged Plaintiff’s claim that the Defendant only violated Plaintiff’s Freedom of Speech. As already mentioned, Plaintiff has made it abundantly clear that he primarily accuses the Defendant of violating his Freedom of Association, which is equally protected under the First Amendment of the United States Constitution.
4. THERE IS SUFFICIENT EVIDENCE TO STATE A CLAIM UNDER 42 U.S.C. § 1983
(In Response to Defendant’s Point V)
The line of defense in Point V is based on the following claims: “Municipalities are subject to liability under section 1983 for alleged violations of an individual’s constitutional rights resulting from a municipal policy or custom. See, Monell v. Department of Social Servs., 436 U.S. 658, 98 S.Ct. 2018, 56 Led.2d 611 (1978), Pisello v. Town of Brookhaven, 933 F.Supp. 202, 209 (E.D.N.Y. 1996). A plaintiff must first prove the existence of a municipal policy or custom that caused her injuries, and must establish a causal connection between the policy and the alleged civil rights violation. Vippolis v. Village of Haverstraw, 768 F.2d 40, 44 (2d Cir. 1985), cert. denied, 480 U.S. 916, 107 S.Ct. 1369, 94 L.Ed 2d 658 (1987),” and other less relevant claims. The Defendant concludes: “Plaintiff has not alleged the existence of a municipal policy or custom in order to impose municipal liability under § 1983.”
There are at least two unwritten policies or customs in existence that are relevant to Plaintiff’s case and to his claim under 42 U.S.C. § 1983:
1. The custom of clandestine discrimination in hiring, retention and promotion against conservatives by most universities and colleges in the United States, including Stony Brook University. The supporting evidence summarized by Plaintiff in Exhibit “D” and confirmed by Plaintiff’s experience shows that this policy or custom has been in effect for at least 30 years, and has resulted in near absence of conservative professors in the Academia.
2. The custom of not addressing complaints from students and professors. In Plaintiff’s experience, this is evident from the fact that the Director of Human Resources at Stony Brook University, Lynn Johnson, was unable to produce a single document showing that a formal investigation had been carried out in response to Plaintiff’s complaint. The absence of formal grievance procedures at New York State universities and colleges, and the general reluctance by administrators to meaningfully address complaints from students and professors, have already been recognized as serious problems by the legislators, and led to introduction in early 2006 of an Academic Bill of Rights as S.6336 in the New York State Senate by 10 Senators, followed by the sponsorship of the same bill in the Assembly as A.10098 by 6 Assembly members (Link 70). Although, the legislative lame-duck session failed to act on the bill in 2006, the bill is almost certain to be re-introduced in 2007, and the former Attorney General in this case, now a new Governor of New York, may have the opportunity of signing it into law.
CONCLUSION
On the basis of the foregoing, the Defendant’s motion for summary judgment should be denied in its entirety.
Dated: Holtsville, New York
January 12, 2007
_____________________________
Tibor Gasparik
Plaintiff pro se, and
Research Associate Professor
352 Plad Blvd
Holtsville, New York 11742
(631) 447-2168
TO: Lori L. Pack
Office of the Attorney General
300 Motor Parkway, Suite 205
Hauppauge, NY 11788
Wednesday, January 10, 2007
-
References to "Account of my Persecution"
E-1/1-2 Letter from Dave Walker to Bob Liebermann, 3/16/1988.
E-2 Letter from Mike Drake to Tibor Gasparik, 7/7/1987.
E-3 Letter from Dave Walker to Bob Liebermann, 4/1/1988.
E-4 Letter from Dave Walker to Bob Liebermann, 2/13/1990.
E-5 Review of a NSF proposal by Dave Walker, 9/18/1989.
E-6/1-2 Letter from Dave Walker to Weidner and Liebermann, 12/17/1991.
E-7/1-2 Letter from Dave Walker to Weidner and Liebermann, 1/7/1992.
E-8 Letter from Claude Herzberg to Don Weidner, 1/9/1992.
E-9/1-2-3 Letter from Tibor Gasparik to Bob Liebermann, 1/21/1992.
E-9/4-5 Letter from Bob Liebermann to Tibor Gasparik, 2/3/1992.
E-9/6 Letter from Tibor Gasparik to Bob Liebermann, 2/4/1992.
E-9/7 Letter from Bob Liebermann to Tibor Gasparik, 2/4/1992.
E-10/1-2-3 Letter from Tibor Gasparik to Karen Nimmons, 3/4/1992.
E-11/1-2-3 Letter from Tibor Gasparik to Gil Hanson, 2/13/1992.
E-11/4 Letter from Don Lindsley to Tibor Gasparik, 2/23/1992.
E-11/5 Letter from Gil Hanson to Tibor Gasparik, 10/26/1992.
E-11/6 Letter from Tibor Gasparik to Gil Hanson, 11/18/1992.
E-12 E-mail from Bob Liebermann to John Parise, 1/25/1999.
E-13 E-mail from Bob Liebermann to Tibor Gasparik, 2/10/1999.
E-14 E-mail from John Parise, 2/22/1999.
E-15/1 Letter from Tibor Gasparik to Jim Broyles, 4/21/1999.
E-15/2 Letter from Jim Broyles to Tibor Gasparik, 4/22/1999.
E-16 Letter from Tibor Gasparik to Jim Broyles, 6/22/1999.
E-17/1-2 Letter from Jim Broyles to Tibor Gasparik, 6/25/1999.
E-18 E-mail from Don Lindsley to probe users, 8/31/1999.
E-19 E-mail from Don Lindsley to probe users, 10/15/1999.
E-20 E-mail from Don Lindsley to Tibor Gasparik, 10/15/1999.
E-21 E-mail from John Parise, 11/11/1999.
E-22 E-mails between Tibor Gasparik and Gabriel Gwanmesia, 12/6,13/1999.
E-23 E-mail from Don Weidner to Tibor Gasparik, 2/17/2000.
E-24 E-mail from Don Weidner to Tibor Gasparik, 8/30/2000.
E-25 Letter from Tibor Gasparik to faculty members, 8/27/2001.
E-26 Letter from Scott McLennan to Tibor Gasparik, 9/10/2001.
E-27 Letter from Weidner and Liebermann to Tibor Gasparik, 9/14/2001.
E-28 Notice of dismissal, 1/31/2002.
E-29/1-2 Ratings of CHiPR participants and faculty members (1989-2001).
E-30/1-2-3-4 Work Search Record, 11/27/2001 to 5/20/2002.
E-31 Sign “AGE AND TREACHERY ALWAYS OVERCOME YOUTH AND SKILLS”
E-32 E-mail from Herman Zimmerman to Tibor Gasparik, 4/14/2003.
E-33 Panel summary and reviews, April 2003.
E-34/1 Letter from Tibor Gasparik to Herman Zimmerman, 4/10/2003.
E-34/2 E-mail from Herman Zimmerman to Tibor Gasparik, 4/15/2003.
E-34/3 Letter from Tibor Gasparik to Margaret Leinen, 4/21/2003.
E-34/4 Letter from Margaret Leinen to Tibor Gasparik, 5/15/2003.
E-34/5 Letter from Tibor Gasparik to Joseph Bordogna, 5/21/2003.
E-34/6 Letter from Joseph Bordogna to Tibor Gasparik, 7/3/2003.
E-34/7 Letter from Tibor Gasparik to Rita Colwell, 6/26/2003.
E-34/8 Letter from Margaret Cavanaugh to Tibor Gasparik, 7/28/2003.
E-35 Reviews of the NSF proposals, 1985-2005.
E-36 Letter from Tibor Gasparik to Don Weidner, 7/15/2003.
E-37 The Mobbing Encyclopaedia.
E-38 Letter from Tibor Gasparik to Robert McGrath, 9/8/2003.
E-39 Letter from Robert McGrath to Tibor Gasparik, 9/16/2003.
E-40 Letter from Tibor Gasparik to Shirley Strum Kenny, 9/22/2003.
E-41 Letter from Shirley Strum Kenny to Tibor Gasparik, 10/2/2003.
E-42 Letter from Lynn Johnson to Tibor Gasparik, 10/22/2003.
E-43 Letter from Tibor Gasparik to Don Lindsley, 10/6/2003.
E-44/1-2 Letter from Don Lindsley to Tibor Gasparik, 10/27/2003.
E-45 Letter from Tibor Gasparik to Bob Liebermann, 11/10/2003.
E-46 Letter from Bob Liebermann to Tibor Gasparik, 11/14/2003.
E-47 Letter from Tibor Gasparik to Don Weidner, 11/28/2003.
E-48 Letter from Don Weidner to Tibor Gasparik, 1/2/2004.
E-49 Letter from Tibor Gasparik to Scott McLennan, 1/8/2004.
E-50 Letter from Tibor Gasparik to Teng-fong Wong, 4/13/2004.
E-51 Article by David Horowitz: “The Campus Blacklist,” 4/18/2003.
E-52 Letter from Tibor Gasparik to Shirley Strum Kenny, 4/20/2004.
E-53 Letter from Shirley Strum Kenny to Tibor Gasparik, 5/19/2004.
E-54/1 E-mail from Herman Zimmerman to Tibor Gasparik, 4/11/2004.
E-54/2 Panel summary and reviews, April 2004.
E-55 Letter from Tibor Gasparik to Arden Bement, 5/5/2004.
E-56 Letter from Tibor Gasparik to Arden Bement, 12/27/2004.
E-57/1 Letter from John Hunt to Tibor Gasparik, 5/18/2004.
E-57/2 Letter from Tibor Gasparik to Margaret Leinen, 5/27/2004.
E-57/3-4 Letter from Margaret Leinen to Tibor Gasparik, 6/25/2004.
E-58 E-mails from Tibor Gasparik to various officials, 6/27/2005 to 7/16/2005.
E-59 E-mail from Tibor Gasparik to Teng-fong Wong, 7/13/2005.
E-60 E-mails between Tibor Gasparik to Teng-fong Wong, 8/10,12/2005.
References to "Account of my Persecution"
E-1/1-2 Letter from Dave Walker to Bob Liebermann, 3/16/1988.
E-2 Letter from Mike Drake to Tibor Gasparik, 7/7/1987.
E-3 Letter from Dave Walker to Bob Liebermann, 4/1/1988.
E-4 Letter from Dave Walker to Bob Liebermann, 2/13/1990.
E-5 Review of a NSF proposal by Dave Walker, 9/18/1989.
E-6/1-2 Letter from Dave Walker to Weidner and Liebermann, 12/17/1991.
E-7/1-2 Letter from Dave Walker to Weidner and Liebermann, 1/7/1992.
E-8 Letter from Claude Herzberg to Don Weidner, 1/9/1992.
E-9/1-2-3 Letter from Tibor Gasparik to Bob Liebermann, 1/21/1992.
E-9/4-5 Letter from Bob Liebermann to Tibor Gasparik, 2/3/1992.
E-9/6 Letter from Tibor Gasparik to Bob Liebermann, 2/4/1992.
E-9/7 Letter from Bob Liebermann to Tibor Gasparik, 2/4/1992.
E-10/1-2-3 Letter from Tibor Gasparik to Karen Nimmons, 3/4/1992.
E-11/1-2-3 Letter from Tibor Gasparik to Gil Hanson, 2/13/1992.
E-11/4 Letter from Don Lindsley to Tibor Gasparik, 2/23/1992.
E-11/5 Letter from Gil Hanson to Tibor Gasparik, 10/26/1992.
E-11/6 Letter from Tibor Gasparik to Gil Hanson, 11/18/1992.
E-12 E-mail from Bob Liebermann to John Parise, 1/25/1999.
E-13 E-mail from Bob Liebermann to Tibor Gasparik, 2/10/1999.
E-14 E-mail from John Parise, 2/22/1999.
E-15/1 Letter from Tibor Gasparik to Jim Broyles, 4/21/1999.
E-15/2 Letter from Jim Broyles to Tibor Gasparik, 4/22/1999.
E-16 Letter from Tibor Gasparik to Jim Broyles, 6/22/1999.
E-17/1-2 Letter from Jim Broyles to Tibor Gasparik, 6/25/1999.
E-18 E-mail from Don Lindsley to probe users, 8/31/1999.
E-19 E-mail from Don Lindsley to probe users, 10/15/1999.
E-20 E-mail from Don Lindsley to Tibor Gasparik, 10/15/1999.
E-21 E-mail from John Parise, 11/11/1999.
E-22 E-mails between Tibor Gasparik and Gabriel Gwanmesia, 12/6,13/1999.
E-23 E-mail from Don Weidner to Tibor Gasparik, 2/17/2000.
E-24 E-mail from Don Weidner to Tibor Gasparik, 8/30/2000.
E-25 Letter from Tibor Gasparik to faculty members, 8/27/2001.
E-26 Letter from Scott McLennan to Tibor Gasparik, 9/10/2001.
E-27 Letter from Weidner and Liebermann to Tibor Gasparik, 9/14/2001.
E-28 Notice of dismissal, 1/31/2002.
E-29/1-2 Ratings of CHiPR participants and faculty members (1989-2001).
E-30/1-2-3-4 Work Search Record, 11/27/2001 to 5/20/2002.
E-31 Sign “AGE AND TREACHERY ALWAYS OVERCOME YOUTH AND SKILLS”
E-32 E-mail from Herman Zimmerman to Tibor Gasparik, 4/14/2003.
E-33 Panel summary and reviews, April 2003.
E-34/1 Letter from Tibor Gasparik to Herman Zimmerman, 4/10/2003.
E-34/2 E-mail from Herman Zimmerman to Tibor Gasparik, 4/15/2003.
E-34/3 Letter from Tibor Gasparik to Margaret Leinen, 4/21/2003.
E-34/4 Letter from Margaret Leinen to Tibor Gasparik, 5/15/2003.
E-34/5 Letter from Tibor Gasparik to Joseph Bordogna, 5/21/2003.
E-34/6 Letter from Joseph Bordogna to Tibor Gasparik, 7/3/2003.
E-34/7 Letter from Tibor Gasparik to Rita Colwell, 6/26/2003.
E-34/8 Letter from Margaret Cavanaugh to Tibor Gasparik, 7/28/2003.
E-35 Reviews of the NSF proposals, 1985-2005.
E-36 Letter from Tibor Gasparik to Don Weidner, 7/15/2003.
E-37 The Mobbing Encyclopaedia.
E-38 Letter from Tibor Gasparik to Robert McGrath, 9/8/2003.
E-39 Letter from Robert McGrath to Tibor Gasparik, 9/16/2003.
E-40 Letter from Tibor Gasparik to Shirley Strum Kenny, 9/22/2003.
E-41 Letter from Shirley Strum Kenny to Tibor Gasparik, 10/2/2003.
E-42 Letter from Lynn Johnson to Tibor Gasparik, 10/22/2003.
E-43 Letter from Tibor Gasparik to Don Lindsley, 10/6/2003.
E-44/1-2 Letter from Don Lindsley to Tibor Gasparik, 10/27/2003.
E-45 Letter from Tibor Gasparik to Bob Liebermann, 11/10/2003.
E-46 Letter from Bob Liebermann to Tibor Gasparik, 11/14/2003.
E-47 Letter from Tibor Gasparik to Don Weidner, 11/28/2003.
E-48 Letter from Don Weidner to Tibor Gasparik, 1/2/2004.
E-49 Letter from Tibor Gasparik to Scott McLennan, 1/8/2004.
E-50 Letter from Tibor Gasparik to Teng-fong Wong, 4/13/2004.
E-51 Article by David Horowitz: “The Campus Blacklist,” 4/18/2003.
E-52 Letter from Tibor Gasparik to Shirley Strum Kenny, 4/20/2004.
E-53 Letter from Shirley Strum Kenny to Tibor Gasparik, 5/19/2004.
E-54/1 E-mail from Herman Zimmerman to Tibor Gasparik, 4/11/2004.
E-54/2 Panel summary and reviews, April 2004.
E-55 Letter from Tibor Gasparik to Arden Bement, 5/5/2004.
E-56 Letter from Tibor Gasparik to Arden Bement, 12/27/2004.
E-57/1 Letter from John Hunt to Tibor Gasparik, 5/18/2004.
E-57/2 Letter from Tibor Gasparik to Margaret Leinen, 5/27/2004.
E-57/3-4 Letter from Margaret Leinen to Tibor Gasparik, 6/25/2004.
E-58 E-mails from Tibor Gasparik to various officials, 6/27/2005 to 7/16/2005.
E-59 E-mail from Tibor Gasparik to Teng-fong Wong, 7/13/2005.
E-60 E-mails between Tibor Gasparik to Teng-fong Wong, 8/10,12/2005.
Archives
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