Documentation to "My Case"

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From: disgro@notes.cc.sunysb.edu
Subject: Faculty Position @ SUNY Stony Brook
To: tomanti@optonline.net


Professor John Parise
Department of Geosciences
Department of Chemistry
Stony Brook NY 11794-2100, USA
+1-631-632-8196 (8240 FAX)

June 19, 2007

Dr. Tibor Gasparik
352 Plad Blvd
Holtsville, NY 11742 USA

Dear Dr. Gasparik,

After careful deliberation, the Department of Geoscience Search Committee at Stony Brook University has screened the list of candidates for Assistant Professor down to a short list. For the convenience of candidates in making future plans, the committee thought that each candidate who is presently not under consideration should be notified as quickly as possible. The committee has given serious consideration to your candidacy and has placed your application in the non-continuing category. Thank you for your interest.

Yours Sincerely,

John B. Parise
Chair of the Search Committee Geosciences

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-------------------------------------------------------------X
TIBOR GASPARIK,

Plaintiff,
…………………………………………...........................................................……….… JUDGMENT
-against-
…………………………………………………...............................................…………… CV 05-3817 (SJF)(ARL)
STONY BROOK UNIVERSITY,

Defendant.
-------------------------------------------------------------X

An Opinion and Order of Honorable Sandra J. Feuerstein United States District Judge, having been filed on July 9, 2007, adopting the Report and Recommendation of Magistrate Judge Arlene R. Lindsay dated July 2, 2007, and granting defendant’s motion for summary judgment and dismissing plaintiff’s complaint for lack of subject matter jurisdiction, it is
ORDERED AND ADJUDGED that plaintiff take nothing of defendant; the defendant’s motion for summary judgment is granted; and that plaintiff’s complaint is dismissed for lack of subject matter jurisdiction.

Dated: Central Islip, New York
July 9, 2007

ROBERT C. HEINEMANN
Clerk of the Court

By: /s/ Lorraine Sapienza
Deputy Clerk

-
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-------------------------------------------------------------X
TIBOR GASPARIK,

Plaintiff,
……………………………………………………..........................................……...… OPINION & ORDER
-against-
…………………………………………………….........................................………… CV 05-3817 (SJF)(ARL)
STONY BROOK UNIVERSITY,

Defendant.
-------------------------------------------------------------X

FEUERSTEIN, J.

Before the Court is an application for the assignment of counsel and a general objection by plaintiff Tibor Gasparik (plaintiff) to a Report and Recommendation of United States Magistrate Judge Arlene R. Lindsay dated July 2, 2007 recommending that the motion of defendant Stony Brook University (defendant) for summary judgment be granted and the complaint be dismissed for lack of subject matter jurisdiction. For the reasons stated herein, the application for the appointment of counsel is denied, the Report and Recommendation is accepted in its entirety, summary judgment is granted in favor of defendant and the complaint is dismissed.


1. Discussion

A. Appointment of Counsel

28 U.S.C. § 1915(e)(1) provides that a “court may request an attorney to represent any person unable to afford counsel.” Courts possess broad discretion to determine whether appointment of counsel for civil litigants is appropriate, “subject to the requirement that it be ‘guided by sound legal principle.’’’ Cooper v. A. Sargenti Co., Inc.. 877 F.2d 170, 171-72 (2d Cir. 1989) (quoting Jenkins v. Chemical Bank, 721 F.2d 876, 879 (2d Cir. 1983)).

When deciding whether to assign counsel to an indigent civil litigant under 28 U.S.C. § 1915(e)(1) the threshold inquiry is whether there is substance to the litigant’s position. Carmona v. U.S. Bureau of Prisons, 243 F.3d 629, 632 (2d Cir. 2001): see also Hodge v. Police Officers, 802 F.2d 58, 61 (2d Cir. 1986)(holding that the district judge should first determine whether the indigent’s position seems likely to be of substance). “[C]ounsel should not be appointed in a case where the merits of the indigent’s claim are thin and his chances of prevailing are therefore poor.” Carmona, 243 F.3d at 632.

If the Court finds that the plaintiff’s claim is of substance, it should next consider the following factors:

[T]he indigent’s ability to investigate the crucial facts, whether conflicting evidence implicating the need for cross-examination will be the major proof presented to the fact finder, the indigent’s ability to present the case, the complexity of the legal issues and any special reason in that case why appointment of counsel would be more likely to lead to a just determination.

Hodge, 802 F.2d at 61-62; see also Carmona, 243 F. 3d at 632 (holding that only after an initial finding that a claim is likely one of substance should the court consider secondary factors such as the factual and legal complexity of the case, the ability of the litigant to navigate the legal minefield unassisted, and any other reason why in the particular case appointment of counsel would more probably lead to a just resolution of the dispute). However, these factors are not exclusive and “[e]ach case must be decided on its own facts.” Hodge, 802 F.2d at 61.

The Court has reviewed plaintiff’s application and finds that the appointment of counsel is not warranted at this stage of the litigation, since, inter alia, (1) plaintiff has not established that he is unable to afford counsel, merely indicating that he has “tried in vain to find a legal representative,” (Plaintiff’s Objection to the Report and Recommendation, dated July 5, 2007); and (2) plaintiff’s position does not appear to be one of substance. Accordingly, plaintiff’s application for the appointment of counsel is denied.


B. Standard of Review of Report and Recommendation

Rule 72 of the Federal Rules of Civil Procedure permits magistrate judges to conduct proceedings on dispositive pretrial matters without the consent of the parties. Fed.R.Civ.P. 72(b). Any portion of a report and recommendation on dispositive matters, to which a timely objection has been made, is reviewed de novo. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b). The court, however, is not required to review the factual findings or legal conclusions of the magistrate judge as to which no proper objections are interposed. See, Thomas v. Arn, 474 U.S. 140, 150, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985). Whether or not proper objections have been filed, the district judge may, after review, accept, reject, or modify any of the magistrate judge’s findings or recommendations. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b).

Since plaintiff is pro se and filed a general objection, I conducted a de novo review of the Report and Recommendation. Upon such review, plaintiff’s objection is overruled, the Report and Recommendation is accepted in its entirety, summary judgment is granted in favor of defendant and the complaint is dismissed for lack of subject matter jurisdiction. The clerk of the Court is directed to close this case.

SO ORDERED

____________________________________
SANDRA J. FEUERSTEIN
United States District Judge

Dated: July 9, 2007
Central Islip, New York

Copies to:

Tibor Gasparik, pro se
352 Plad Boulevard
Holtsville, New York 11742

Office of the New York State
Attorney General
300 Motor Parkway, Suite 205
Hauppauge, New York 11788
Attn: Lori L. Pack, AAG

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-------------------------------------------------------------X
TIBOR GASPARIK,

Plaintiff,
……………………………………………..........................…..……. REPORT AND RECOMMENDATION
-against-
………………………………………………………....................……… CV 05-3817 (SJF)(ARL)
STONY BROOK UNIVERSITY,

Defendant.
-------------------------------------------------------------X

LINDSAY, Magistrate Judge:

Before the court, on referral from District Judge Sandra J. Feuerstein, is the defendant’s
motion for summary judgment pursuant to Federal Rules of Civil Procedure 56. For the reasons
set forth herein, the undersigned recommends that the motion be granted.

BACKGROUND

Pro se plaintiff Tibor Gasparik (“Gasparik”), a self-described registered Republican with
conservative views, filed the complaint in this action against the defendant, Stony Brook
University (“SUNY”), alleging pursuant to 42 U.S.C. §§ 1983, 1985 and 1986 that it violated his
federal constitutional rights to free speech and to free association. Compl. at ¶¶ 1, 27-28. The
undisputed facts are set forth below in the light most favorable to the nonmoving party. Blackman
v. New York City Transit Authority, No. CV 06-4714, 2007 WL 1774638, at * 3 (2d Cir. June
21, 2007).

FACTS

Gasparik began his employment with SUNY in April 1985. Compl. at ¶ 6, Def.’s 56.1
Statement at ¶ 1. Plaintiff was employed by SUNY as a Research Assistant Professor in the
Department of Earth and Space Sciences under a series of temporary grants received by SUNY
from the National Science Foundation. (See letters regarding the plaintiff’s temporary
employment with SUNY annexed as Ex. C. to the Pack Declaration). Upon expiration of the last
grant, the research project on which the plaintiff had been workingwas terminated and his
employment with SUNY ended. Toward the end of his employment, Gasparik chose not to apply
for positions which might have allowed him to continue his employment as a professor with
SUNY because he “wasn’t personally encouraged to apply.” (Gasparik Dep. at 74). According
to the plaintiff, while he was employed at SUNY, he was subjected to a series of hostile actions
because of his political affiliation and ideology and was forced to look elsewhere for employment.
Compl. at ¶ 8.

Following the termination of his employment, the plaintiff took steps to establish a
career in secondary school education and to this end undertook a course of study at SUNY. Id. at
¶ 13. According to the plaintiff, he was promised a position at Ralph G. Reed Middle School in
Central Islip following completion of all requirements and satisfactory performance as a student
teacher between March and May 2005. Id. at ¶ 14. Plaintiff alleges that despite SUNY’s promise
to expedite the certification process following his completion of all requirements, SUNY instead
purposefully delayed the process resulting in the loss of this employment opportunity. Id. at ¶¶
14-15. Plaintiff further alleges that in June 2005 he posted a website that summarized his dealings
and alleged persecution by SUNY. In response, SUNY removed plaintiff’s name from the list of
faculty members posted on the departmental website and ordered that he vacate his office in the
Department. Id. at ¶ 17.

Based on these factual allegations, the plaintiff claims that SUNY has discriminated
against him in hiring, retention and promotion, and subjected him to a hostile work environment
based on his political affiliation and ideology. Id. at ¶¶ 29, 31-32. Plaintiff further alleges that
SUNY violated his right to free speech by removing his name from the list of faculty members
and ordering him to vacate his office.

DISCUSSION

I. Legal Standards
The court must liberally interpret the complaint of a pro se plaintiff. Haines v. Kerner,
404 U.S. 519, 520-21, 92 S. Ct. 594, 595 (1972); Williams v. Smith, 781 F.2d 319, 322 (2d Cir.
1986). Taking into consideration the plaintiff’s lack of legal training, the court “holds the
complaint to ‘less stringent standards than formal pleadings drafted by lawyers.’” Roberts v.
Internal Revenue Service, No. 06 Civ. 1518 (VM), 2006 WL 3873161, at *3 (S.D.N.Y. Dec. 28,
2006), quoting Boddie v. Schnieder, 105 F.3d 857, 860 (2d Cir. 1997). Nevertheless, pro se status
“does not exempt a party from compliance with relevant rules of procedural and substantive law.”
Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983) (citations omitted).

A. Subject Matter Jurisdiction
To begin with, the court addresses the defendant’s challenge to this court’s subject matter
jurisdiction. SUNY’s threshold contention is that the court lacks subject matter jurisdiction under
the doctrine of Eleventh Amendment immunity. The Eleventh Amendment to the Constitution
provides:

The Judicial power of the United States shall not be construed to
extend to any suit in law or equity, commenced or prosecuted
against one of the United States by Citizens of another State, or by
Citizens or Subjects of any Foreign State.

In essence, the Amendment prevents non-consenting states from being sued by private individuals
in federal court. See Bd. of Tr. of the Univ. of Ala. v. Garrett, 531 U.S. 356, 363 (2001). It is
well-established that this immunity extends to alter egos of the State such as SUNY. See Dube v.
State University of New York, 900 F.2d 587, 594 (2d Cir. 1990); see also Garcia v. SUNY Health
Svcs. Center of Brooklyn, 280 F.3d 98, 107 (2d Cir. 2001); Towers v. SUNY Stony Brook, No.
CV 04-5243(FB), 2007 WL 1470152, at *4 (E.D.N.Y. May 21, 2007); Banks v. SUNY at Buffalo,
No. CV 06-2392, 2007 WL 895505, at *7 (W.D.N.Y. March 22, 2007) (“The Second Circuit has
held that for Eleventh Amendment purposes, the State University of New York (“SUNY”) is an
integral part of the state government that when it is sued, the State of New York is the real
party.”).

The Supreme Court has long held that absent the state’s express waiver or consent or
Congressional abrogation, the Eleventh Amendment bars suits brought against the state by its own
citizens. See Fonseca v. Columbia Gas Sys., Inc., 37 F. Supp. 2d 214, 231 (W.D.N.Y.
1998)(citing Hans v. Louisiana, 134 U.S. 1 (1890)). Here, the State of New York has not
consented and it is well-established that 42 U.S.C. §§ 1983 and 1985-86 do not override the
state’s Eleventh Amendment immunity. See Will v. Michigan Dept. of State Police, 491 U.S. 58,
66, 109 S. Ct. 2304, 2310 (1989) (“Section 1983 provides a federal forum to remedy many
deprivations of civil liberties, but it does not provide a federal forum for litigants who seek a
remedy against a State for alleged deprivations of civil liberties.”); Quern v. Jordon, 440 U.S. 332,
342 (1979) (holding 42 U.S.C. § 1983 does not override Eleventh Amendment); Bogle-Assegai v.
Conn., 470 F.3d 498 (2d Cir. 2006) (affirming dismissal of § 1983 claims against State,
Commission of Human Rights and individual defendants sued in official capacities under
Eleventh Amendment); Clissuras v. C.U.N.Y., 359 F.3d 79 (2d Cir. 2004), cert. denied, 543 U.S.
987 (affirming dismissal of claims against CUNY under 42 U.S.C. §§ 1983 and 1985 on the
ground of sovereign immunity); Estes-El v. New York State Dept. of Motor Vehicles, No. 95 Civ.
3454 (JFK), 1997 WL 342481, at *3 (S.D.N.Y. June 23, 2997) (“[I]n enacting 42 U.S.C. §§ 1983,
1985 and 1986 -the federal statutes plaintiff invokes here-Congress did not abrogate the States’
Eleventh Amendment immunity.”) (citations omitted). Accordingly, SUNY is entitled to
sovereign immunity under the Eleventh Amendment. Pennhurst State School and Hospital v.
Halderman, 465 U.S. 89, 104 S. Ct. 900 (1984); Dube, 900 F.2d at 594-95.

Without subject matter jurisdiction, this court has no power to determine the case before it.
United States v. Cotton, 535 U.S. 625, 630, 122 S. Ct. 1781, 1785 (2002); Megibow v. Clerk of
the United States Tax Court, No. 04-Civ. 3321(GEL), 2004 WL 1961591, at * 2 (S.D.N.Y. Aug.
31, 2004) (“Subject matter jurisdiction refers to the court’s authority to hear and determine a
case.”), citing Brougham v. Oceanic Steam Navigation Co., 205 F. 857, 859-60 (2d Cir. 1913).
“[S]ubject matter jurisdiction is an unwaivable sine qua non for the exercise of federal judicial
power.” Curley v. Brignoli, Curley & Roberts, Assocs., 915 F.2d 81, 83 (2d Cir. 1999).
Accordingly, the undersigned recommends that the plaintiff’s complaint be dismissed for lack of
subject matter jurisdiction.

OBJECTIONS

A copy of this Report and Recommendation is being served by the Court on all parties.
Any objections to this Report and Recommendation must be electronically filed with the Clerk of
the Court within 10 days of service. Failure to file objections within this period waives the right
to appeal the District Court’s Order. See 28 U.S.C. §636 (b) (1); Fed. R. Civ. P. 72; Beverly v.
Walker, 118 F.3d 900, 902 (2d Cir. 1997); Savoie v. Merchants Bank, 84 F.3d 52, 60 (2d Cir.
1996).

Dated: Central Islip, New York
July 2, 2007

_______/s/_______________
Arlene R. Lindsay
United States Magistrate Judge

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-------------------------------------------------------------X
TIBOR GASPARIK,

Plaintiff,
………………………………………….........................……..………. REPORT AND RECOMMENDATION
-against-
………………………………………………................................……………… CV 05-3817 (SJF)(ARL)
STONY BROOK UNIVERSITY,

Defendant.
-------------------------------------------------------------X

LINDSAY, Magistrate Judge:

Before the court, on referral from District Judge Sandra J. Feuerstein, is the defendant’s
motion for summary judgment pursuant to Federal Rules of Civil Procedure 56. For the reasons
set forth herein, the undersigned recommends that the motion be granted.

BACKGROUND

Pro se plaintiff Tibor Gasparik (“Gasparik”), a self-described registered Republican with
conservative views, filed the complaint in this action against the defendant, Stony Brook
University (“SUNY”), alleging pursuant to 42 U.S.C. §§ 1983, 1985 and 1986 that it violated his
federal constitutional rights to free speech and to free association. Compl. at ¶¶ 1, 27-28. The
undisputed facts are set forth below in the light most favorable to the nonmoving party. Blackman v. New York City Transit Authority, No. CV 06-4714, 2007 WL 1774638, at * 3 (2d Cir. June 21, 2007).

FACTS

Gasparik began his employment with SUNY in April 1985. Compl. at ¶ 6, Def.’s 56.1
Statement at ¶ 1. Plaintiff was employed by SUNY as a Research Assistant Professor in the
Department of Earth and Space Sciences under a series of temporary grants received by SUNY
from the National Science Foundation. (See letters regarding the plaintiff’s temporary
employment with SUNY annexed as Ex. C. to the Pack Declaration). Upon expiration of the last
grant, the research project on which the plaintiff had been workingwas terminated and his
employment with SUNY ended. Toward the end of his employment, Gasparik chose not to apply
for positions which might have allowed him to continue his employment as a professor with
SUNY because he “wasn’t personally encouraged to apply.” (Gasparik Dep. at 74). According
to the plaintiff, while he was employed at SUNY, he was subjected to a series of hostile actions
because of his political affiliation and ideology and was forced to look elsewhere for employment.
Compl. at ¶ 8.

Following the termination of his employment, the plaintiff took steps to establish a
career in secondary school education and to this end undertook a course of study at SUNY. Id. at
¶ 13. According to the plaintiff, he was promised a position at Ralph G. Reed Middle School in
Central Islip following completion of all requirements and satisfactory performance as a student
teacher between March and May 2005. Id. at ¶ 14. Plaintiff alleges that despite SUNY’s promise
to expedite the certification process following his completion of all requirements, SUNY instead
purposefully delayed the process resulting in the loss of this employment opportunity. Id. at ¶¶
14-15. Plaintiff further alleges that in June 2005 he posted a website that summarized his dealings and alleged persecution by SUNY. In response, SUNY removed plaintiff’s name from the list of faculty members posted on the departmental website and ordered that he vacate his office in the Department. Id. at ¶ 17.

Based on these factual allegations, the plaintiff claims that SUNY has discriminated
against him in hiring, retention and promotion, and subjected him to a hostile work environment
based on his political affiliation and ideology. Id. at ¶¶ 29, 31-32. Plaintiff further alleges that
SUNY violated his right to free speech by removing his name from the list of faculty members
and ordering him to vacate his office.

DISCUSSION

I. Legal Standards
The court must liberally interpret the complaint of a pro se plaintiff. Haines v. Kerner,
404 U.S. 519, 520-21, 92 S. Ct. 594, 595 (1972); Williams v. Smith, 781 F.2d 319, 322 (2d Cir.
1986). Taking into consideration the plaintiff’s lack of legal training, the court “holds the
complaint to ‘less stringent standards than formal pleadings drafted by lawyers.’” Roberts v.
Internal Revenue Service, No. 06 Civ. 1518 (VM), 2006 WL 3873161, at *3 (S.D.N.Y. Dec. 28,
2006), quoting Boddie v. Schnieder, 105 F.3d 857, 860 (2d Cir. 1997). Nevertheless, pro se status “does not exempt a party from compliance with relevant rules of procedural and substantive law.” Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983) (citations omitted).

A. Subject Matter Jurisdiction
To begin with, the court addresses the defendant’s challenge to this court’s subject matter
jurisdiction. SUNY’s threshold contention is that the court lacks subject matter jurisdiction under the doctrine of Eleventh Amendment immunity. The Eleventh Amendment to the Constitution provides:

The Judicial power of the United States shall not be construed to
extend to any suit in law or equity, commenced or prosecuted
against one of the United States by Citizens of another State, or by
Citizens or Subjects of any Foreign State.

In essence, the Amendment prevents non-consenting states from being sued by private individuals in federal court. See Bd. of Tr. of the Univ. of Ala. v. Garrett, 531 U.S. 356, 363 (2001). It is well-established that this immunity extends to alter egos of the State such as SUNY. See Dube v. State University of New York, 900 F.2d 587, 594 (2d Cir. 1990); see also Garcia v. SUNY Health Svcs. Center of Brooklyn, 280 F.3d 98, 107 (2d Cir. 2001); Towers v. SUNY Stony Brook, No. CV 04-5243(FB), 2007 WL 1470152, at *4 (E.D.N.Y. May 21, 2007); Banks v. SUNY at Buffalo, No. CV 06-2392, 2007 WL 895505, at *7 (W.D.N.Y. March 22, 2007) (“The Second Circuit has held that for Eleventh Amendment purposes, the State University of New York (“SUNY”) is an integral part of the state government that when it is sued, the State of New York is the real party.”).

The Supreme Court has long held that absent the state’s express waiver or consent or
Congressional abrogation, the Eleventh Amendment bars suits brought against the state by its own citizens. See Fonseca v. Columbia Gas Sys., Inc., 37 F. Supp. 2d 214, 231 (W.D.N.Y.
1998)(citing Hans v. Louisiana, 134 U.S. 1 (1890)). Here, the State of New York has not
consented and it is well-established that 42 U.S.C. §§ 1983 and 1985-86 do not override the
state’s Eleventh Amendment immunity. See Will v. Michigan Dept. of State Police, 491 U.S. 58,
66, 109 S. Ct. 2304, 2310 (1989) (“Section 1983 provides a federal forum to remedy many
deprivations of civil liberties, but it does not provide a federal forum for litigants who seek a
remedy against a State for alleged deprivations of civil liberties.”); Quern v. Jordon, 440 U.S. 332, 342 (1979) (holding 42 U.S.C. § 1983 does not override Eleventh Amendment); Bogle-Assegai v. Conn., 470 F.3d 498 (2d Cir. 2006) (affirming dismissal of § 1983 claims against State, Commission of Human Rights and individual defendants sued in official capacities under
Eleventh Amendment); Clissuras v. C.U.N.Y., 359 F.3d 79 (2d Cir. 2004), cert. denied, 543 U.S.
987 (affirming dismissal of claims against CUNY under 42 U.S.C. §§ 1983 and 1985 on the
ground of sovereign immunity); Estes-El v. New York State Dept. of Motor Vehicles, No. 95 Civ.
3454 (JFK), 1997 WL 342481, at *3 (S.D.N.Y. June 23, 2997) (“[I]n enacting 42 U.S.C. §§ 1983,
1985 and 1986 -the federal statutes plaintiff invokes here-Congress did not abrogate the States’
Eleventh Amendment immunity.”) (citations omitted). Accordingly, SUNY is entitled to
sovereign immunity under the Eleventh Amendment. Pennhurst State School and Hospital v.
Halderman, 465 U.S. 89, 104 S. Ct. 900 (1984); Dube, 900 F.2d at 594-95.

Without subject matter jurisdiction, this court has no power to determine the case before it.
United States v. Cotton, 535 U.S. 625, 630, 122 S. Ct. 1781, 1785 (2002); Megibow v. Clerk of
the United States Tax Court, No. 04-Civ. 3321(GEL), 2004 WL 1961591, at * 2 (S.D.N.Y. Aug.
31, 2004) (“Subject matter jurisdiction refers to the court’s authority to hear and determine a
case.”), citing Brougham v. Oceanic Steam Navigation Co., 205 F. 857, 859-60 (2d Cir. 1913).
“[S]ubject matter jurisdiction is an unwaivable sine qua non for the exercise of federal judicial
power.” Curley v. Brignoli, Curley & Roberts, Assocs., 915 F.2d 81, 83 (2d Cir. 1999). Accordingly, the undersigned recommends that the plaintiff’s complaint be dismissed for lack of
subject matter jurisdiction.

OBJECTIONS

A copy of this Report and Recommendation is being served by the Court on all parties.
Any objections to this Report and Recommendation must be electronically filed with the Clerk of
the Court within 10 days of service. Failure to file objections within this period waives the right
to appeal the District Court’s Order. See 28 U.S.C. §636 (b) (1); Fed. R. Civ. P. 72; Beverly v.
Walker, 118 F.3d 900, 902 (2d Cir. 1997); Savoie v. Merchants Bank, 84 F.3d 52, 60 (2d Cir.
1996).

Dated: Central Islip, New York
July 2, 2007

_______/s/_______________
Arlene R. Lindsay
United States Magistrate Judge

-
July 5, 2007

United States District Court
Chambers of the Hon. Sandra Feuerstein
100 Federal Plaza, Room 1014
Central Islip, NY 11722-4438

Re: Tibor Gasparik vs. Stony Brook University
CV 05-3817 (SJF/ARL)


Your Honor, Judge Feuerstein:

I am plaintiff pro se, Tibor Gasparik, in the above captioned case against the defendant, Stony Brook University. The purpose of this letter motion is to file an objection to the Report and Recommendation from July 2, 2007, by the Magistrate Judge, Arlene R. Lindsay, and thus to secure the right to appeal a District Court’s Order in this case. The recommendation was to dismiss the plaintiff’s complaint for lack of subject matter jurisdiction.

The plaintiff believes that his lack of legal training does not allow him to address the legal argument of the Court’s jurisdiction in this case, and that justice will not be served until his objections are filed with the help of a legal counsel. Although, the plaintiff chose to file his complaint as pro se, he has since tried in vain to find a legal representative. Therefore, plaintiff respectfully asks this Court to appoint a legal counsel that would be willing to represent the plaintiff in this case, and to defer judgment in response to the recommendation by the Magistrate Judge until the plaintiff can file his objections with the help of an appointed legal counsel.

Thank you for your kind attention to this request.

Respectfully yours,




Tibor Gasparik
Plaintiff pro se and
Research Associate Professor
352 Plad Blvd
Holtsville, NY 11742
(631) 447-2168

cc: Lori L. Pack

-
June 5, 2006


United States District Court
Chambers of the Hon. Sandra Feuerstein
100 Federal Plaza, Room 1014
Central Islip, NY 11722-4438

Re: Tibor Gasparik vs. Stony Brook University
CV 05-3817 (SJF/ARL)


Your Honor, Judge Feuerstein:

I am plaintiff pro se, Tibor Gasparik, in the above captioned case against the defendant, Stony Brook University. Since I have not seen any evidence that the defendant wants to reach agreement in this case, and my case has inexplicably stalled, I respectfully ask that you set the date for the trial.

Thank you for your kind attention to this request.


Respectfully yours,




Tibor Gasparik
Plaintiff pro se and
Research Associate Professor
352 Plad Blvd
Holtsville, NY 11742
(631) 447-2168


cc: Lori L. Pack

-
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-
................................................................................................................ CV-05-03817 (SJF)

STONY BROOK UNIVERSITY

Defendant.
------------------------------------------------------- X




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

................................................................................................................................. Page

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 ........................................................................................................................... PAGE
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 L.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”):

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).

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.

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.

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.

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.

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.

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.

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.

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.

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
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TIBOR GASPARIK,
.............................................................................................................. CV-05-03817 (SJF)
Plaintiff,
-against-
.......................................................................................................... STATEMENT PURSUANT
STONY BROOK UNIVERSITY
.......................................................................................................... TO LOCAL RULE 56.1
Defendant.
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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 61-100).

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 1-60).

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, and could be rated as one of the best faculty members (E-29/1, 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 University would not consider him for any employment that could provide a salary.

7. Attempts to secure research funding and salary from the National Science Foundation (NSF) were 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

-
January 12, 2007


Lori L. Pack
Assistant Attorney General
Office of the Attorney General of the
State Of New York
300 Motor Parkway – Suite 205
Hauppauge, New York 11788

Re: Tibor Gasparik vs. Stony Brook University
CV 05-03817 (SJF)



Dear Ms. Pack:

Enclosed please find a set of copies of the Plaintiff’s opposition papers submitted to the Court in response to Defendant’s motion for summary judgment.


Respectfully yours,


Tibor Gasparik
Plaintiff pro se and
Research Associate Professor
352 Plad Blvd
Holtsville, NY 11742
(631) 447-2168


cc.: Hon. Sandra J. Feuerstein

-
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-------------------------------------------------------------------------X LLP/8303
TIBOR GASPARIK,

Plaintiff,
………………………………………………...............................................……………… CV-05-3817 (SJF)
-against-

STONYBROOK UNIVERSITY,

Defendants.
------------------------------------------------------------------------X

MEMORANDUM OF LAW IN SUPPORT
OF DEFENDANT STONYBROOK UNIVERSITY’S MOTION
FOR SUMMARY JUDGMENT

ELIOT SPITZER
Attorney General of the
State of New York
Attorney for Defendant Stony Brook
300 Motor Parkway - Suite 205
Hauppauge, New York 11788
(631) 231-2424
LORI L. PACK
Of Counsel


TABLE OF CONTENTS

TABLE OF AUTHORITIES................................................................................................ ..i, ii
PRELIMINARY STATEMENT................................................................................................1
STATEMENT OF FACTS..........................................................................................................2
ARGUMENT
STANDARD FOR SUMMARY JUDGMENT..........................................................................4
POINT I
THIS CLAIM AGAINST DEFENDANT SHOULD BE DISMISSED
ON ELEVENTH AMENDMENT GROUNDS.........................................................................4
POINT II
PLAINTIFF HAS FAILED TO SHOW THAT DEFENDANT VIOLATED A
“CLEARLY ESTABLISHED” FIRST AMENDMENT RIGHT.............................................5
POINT III
PLAINTIFF HAS FAILED TO SHOW RETALIATION RELATING TO HIS
FIRST AMENDMENT CLAIM................. ...............................................................................9
POINT IV
DEFENDANT IS ENTITLED TO QUALIFIED IMMUNITY.............................................12
POINT V
PLAINTIFF FAILS TO STATE A CLAIM UNDER 42 U.S.C. §1983................................13
CONCLUSION...........................................................................................................................14

1 Exhibits referred to herein are attached to the Declaration of Lori L. Pack dated November 16, 2006.


PRELIMINARY STATEMENT

The Defendant submits this memorandum of law in support of its motion for summary
judgment pursuant to Fed.R.Civ.P. 56. The plaintiff, Tibor Gasparik, alleges in his
complaint that Stony Brook violated his civil rights under the First Amendment, 42 U.S.C.
§1983, 42 U.S.C.§1985 and 42 U.S.C. § 1986. (Exhibit "A," Complaint, ¶ 1). Even in 1
viewing the facts most favorably to the Plaintiff, the allegations as set forth in the complaint
fail to state a cause of action upon which relief can be granted under the law.

The Plaintiff’s position at Stony Brook ended solely as a result of the termination of
funding from the National Science Foundation for the research project he had been was
working on for several years. In fact, several employees of Defendant took steps to assist the
Plaintiff in obtaining new employment as soon it was learned from the federal government that
the funding for the project was going to be terminated. (Exhibit “E”, reference letters written
on behalf of Plaintiff).

At no time did the Defendant ever illegally discriminate against the Plaintiff, nor did
Defendant ever violate Plaintiff’s constitutional rights, and as such, this action should be
dismissed pursuant to Rule 56(b) of the Federal Rules of Civil Procedure.


STATEMENT OF FACTS

Plaintiff began his employment with the Research Foundation of Stony Brook in April
of 1985 in the Department of Geosciences as a research associate under a grant from the
National Science Foundation. (Exhibit "C," appointment letter dated March, 1985). This
temporary, two year appointment was funded by the a grant from the National Science
Foundation to enable the Defendant to create a Center for High Pressure research (hereinafter
referred to as “ChiPR”). The Plaintiff’s appointment at the Defendant was “at the pleasure of
the Research Foundation” (Exhibit “C”, letter of appointment to the Plaintiff). Thereafter, the
grant was extended by the federal government several times until the expiration of the final
extension on January 31, 2002. (Exhibit "F," Deposition of Plaintiff p. 39, 43). Although
Plaintiff’s complaint alleges discrimination based upon his exercise of his First Amendment
rights, the documentary evidence and the testimony of the Plaintiff at his deposition clearly
shows that his employment at the Defendant ended solely because the project he was working
on was terminated by the National Science Foundation. (Exhibit “D”, letter dated September
14, 2001, Exhibit "F," Deposition of Plaintiff p. 43. )

Toward the end of his employment, Plaintiff did not apply for positions which might
have enabled him to continue his employment as a professor at Stony Brook University.
(Exhibit “D”, letter dated December 10, 2001 to the Plaintiff.). Plaintiff testified that he did not
apply for a teaching position because “he was not encouraged to apply”. (Exhibit “F”
Deposition of Plaintiff p. 74.) The Defendant even wrote glowing letters of recommendation
for the Plaintiff to assist him in getting a new job, (Exhibit “E”, letters of recommendation
dated May 31, 2002 and September 10, 2001).

Plaintiff’s claim rest solely on his allegation that he was a “conservative” scientist
whose “way of thinking” was different from the culture of the Defendant. (Exhibit “F”
Plaintiff’s deposition p. 112-116). In fact, Plaintiff testified at his deposition that there is a
conspiracy of “liberal scientists” to “blacklist” conservative scientists such as him, which
includes the Defendant (Exhibit “F” Plaintiff’s deposition p. 144), the public school system in
Long Island (Exhibit “F” Plaintiff’s deposition p. 145) and throughout the country (Exhibit
“F” Plaintiff’s deposition p. 146), institutions of higher education (Exhibit “F” Plaintiff’s
deposition p. 145), the National Science Foundation (Exhibit “F” Plaintiff’s deposition p. 112-
116), and possibly NASA (Exhibit “F” Plaintiff’s deposition p. 147). Plaintiff’s claim that he
was fired because he was not “like-minded” in his philosophies toward the environment and
the community does not rise to the level of a constitutional violation by the Defendant and as
such, his claim should be dismissed.


ARGUMENT

STANDARD FOR SUMMARY JUDGMENT

Summary judgment pursuant to Federal Rule of Civil Procedure 56(b) is only
appropriate where admissible evidence in the form of affidavits, deposition transcripts, or other
documentation demonstrates the absence of a genuine issue of material fact, and one party's
entitlement to judgment as a matter of law. See Viola v. Philips Med. Sys. of N. Am., 42 F.3d 712,
716 (2d Cir.1994). The relevant governing law in each case determines which facts are material.
"[O]nly disputes over facts that might affect the outcome of the suit under the governing law will
properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986). No genuinely triable factual issue exists when the moving party demonstrates, on the
basis of the pleadings and submitted evidence, and after drawing all inferences and resolving all
ambiguities in favor of the non-movant, that no rational jury could find in the nonmovant's favor.
Chertkova v. Conn. Gen'l Life Ins. Co., 92 F.3d 81, 86 (2d Cir.1996) (citing Fed.R.Civ.P. 56(c)).

“Summary judgment may be appropriate even in the fact intensive context of
discrimination cases.” Abdu-Brisson v. Delta Airlines, Inc., 239 F.3d. 456, 466 (2D. Cir. 2001). As is
clear in this memorandum and accompanying documents, the facts in this case clearly support the
granting of a motion dismissing the Plaintiff’s case.


POINT I

THIS CLAIM AGAINST DEFENDANT SHOULD BE DISMISSED
ON ELEVENTH AMENDMENT GROUNDS

The Eleventh Amendment bars federal courts from entertaining suits brought by a private
party against a state in its own name without its consent. See Dube v. State University of New York,
900 F.2d 587, 594 (2d Cir. 1990). It is well established that for Eleventh Amendment purposes,
SUNY is considered an alter ego of the State and the State has not consented to suit brought pursuant
to 42 U.S.C. § 1983 in a federal forum for either legal or equitable relief. Id. at 594 (suit for money
damages and injunctive relief brought pursuant to section 1983 in District Court by SUNY professor
who alleged that he was denied tenure in violation of his First and Fourteenth Amendment rights
held barred by the Eleventh Amendment); cited with approval in Garcia v. S.U.N.Y. Health Sciences
Center of Brooklyn, 280 F.3d 98, 107 (2001) (suit for money damages against SUNY barred by the
Eleventh Amendment).

The Eleventh Amendment operates as an express limitation upon the subject matter
jurisdiction of the federal courts. Pennhurst State School and Hospital v. Halderman, 465
U.S.89(1984). The Eleventh Amendment bar includes all suits in Federal Court under 42 U.S.C. §
1983 against state agencies. Alabama v. Pugh, 438 U.S. 781 (1978), Browne v. N.Y.S. Court System,
500 F.Supp.36 (E.D.N.Y. 1984) Therefore, Plaintiff’s complaint against Stony Brook University
should be dismissed .


POINT II

PLAINTIFF HAS FAILED TO SHOW THAT DEFENDANT VIOLATED A “CLEARLY
ESTABLISHED” FIRST AMENDMENT RIGHT

Plaintiff has simply failed to demonstrate that Defendant violated a clearly established First
Amendment right when Plaintiff’s employment was terminated. The qualified immunity doctrine
focuses only on whether the official’s action was objectively reasonable in light of clearly established
law, without concern for possible subjective malice. See Locurto v. Safir, 264 F.3d 154, 169 (2d Cir.
2001); Sound Aircraft Services, Inc. v. Town of East Hampton, 192 F.3d 329, 334 (2d Cir. 1999).

Plaintiff has failed to allege that anyone acting on behalf of the Defendant was even aware of
Plaintiff’s ideological viewpoints. When government officials interpose the defense of qualified
immunity, the threshold inquiry is whether the actions complained of, viewed in a light most
favorable to the plaintiff, show a deprivation of a constitutional right. Saucier v. Katz, 533 U.S. 194,
201-02 (2001); Moore v. Vega, 371 F.3d 110, 114 (2d Cir. 2004). If the court determines that the
plaintiff has made out a claim that he was deprived of a constitutional right, the defendant officials
can then show that they are entitled to qualified immunity in either of two ways. First, they are
immune from liability if the constitutional right at issue is not “clearly established,” meaning that the
contours of the right are not sufficiently clear that reasonable officials would understand that their
alleged conduct would violate it. Anderson v. Creighton, supra at 640; Harlow v. Fitzpatrick, 457
U.S. 800, 818 (1982). Second, even if the right was clearly established, officials are entitled to
qualified immunity if they can establish that it was objectively reasonable for them to believe that
their actions were lawful at the time of the challenged act. Anderson v. Creighton, supra at 638;
Lennon v. Miller, 66 F.3d 416, 420 (2d Cir. 1995).

In this case, the Plaintiff’s claim rests solely on the allegation that because his approach to
scientific research was inopposite to that of the Defendant, he suffered some adverse job action. To be
clearly established, a right must have been recognized in a particularized rather than a general sense.
It is not enough that a general right is clearly established by the Constitution. Sira v. Morton, 380 F.3d
57, 81 (2d Cir 2004). That “is not to say that an official action is protected by qualified immunity
unless the very action in question has previously been held unlawful,” but the unlawfulness must be
apparent in light of pre-existing law. Hope v. Pelzer, 536 U.S. 730, 739 (2002). There exists no law
protecting the Plaintiff from the discrimination which he is claiming, specifically, that he “did not
conform to the Defendant’s way of thinking”. At Plaintiff’s deposition, he was specifically asked
about what type of discrimination he suffered.

Q. Is the basis for this lawsuit the fact that you disagree
with that, what you just described as a liberal way of
doing research?
A. The basis of the lawsuit that this -- in hiring conservative
scientists, they just don't exist anymore. It never comes
up in any hiring process because I never received an invitation
for interview. They make this choice before they make choice
or interview. They know everybody in the community. It's not
like they are getting people they never heard about before..
(Exhibit “F”, Plaintiff’s deposition p. 116)

The Second Circuit has held that in determining whether a right was clearly established at the
time defendants acted, a court should consider (1) whether the right in question was defined with
“reasonable specificity;” (2) whether the decisional law of the Supreme Court and the applicable
circuit courts support the existence of the right in question; and (3) whether under preexisting law a
reasonable defendant official would have understood that his or her acts were unlawful. Back v.
Hastings on Hudson Union Free School Dist., 365 F.3d 107, 129-30 (2d Cir. 2004), citing Jermosen
v. Smith, 945 F.2d 547, 550 (2d Cir. 1991), cert. denied, 503 U.S. 962 (1992).

Even after repeated questioning at his deposition, It is unclear exactly which “speech”
Plaintiff is claiming is protected under the First Amendment. He testified as to the following
at his deposition:

A. In the case of Professor Lieberman, he is somebody who's a
dedicated liberal. He is committed to the cause.
Q. What cause? What cause?
A. He is a committed liberal.
Q. What does that mean?
A. That is the highest thing to have. He wanted to create a
department that would have people, like-minded people around, and I
wasn't like-minded.
Q. What is like-minded?
A. People who think the way that he does.
Q How does he think?
A. Well, it's the whole way of the approach to life, the
philosophy, the way you do research. For example, the way you teach,
to promote liberal causes for example. You know, in liberal causes,
the concern for environment.
Q. The what?
A. Concern for environment, climate change. These are liberal
causes. They don't want people that -- and in general, they prefer
people who support consensus, that support community. They don't
want people to -- that go against the consensus. Cooperation,
cooperation is now a big thing. They want you to work with as many
people as possible. Research right now is no longer the highest priority.
What is the highest priority right now is the social interaction. Now
research is used -- it is just a background. It is the necessary minimum.
They value now exchange of information, for example. You see it in an
explosion of various meetings, workshops.
Q. Is it your testimony that way of thinking did not comport
with their way of thinking with respect to this community way of
thinking? Is that correct?
A.. Well, you try to do your best. They want more. They
want you to be active in promoting these liberal causes.
(Exhibit “F”, Plaintiff’s deposition p. 109-110)

The objective reasonableness test is satisfied if officers of reasonable
competence could disagree about the legality of the defendant’s actions. Hence, 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)).
There is no absolutely indication in the case at hand that anyone acting on behalf of
Defendant was even aware of Plaintiff’s ideological views, much less thought that it would be
in violation of Plaintiff’s Constitutional rights to end his employment when the funding for the
project he had been working on was terminated.

Finally, even if Defendant were aware of Plaintiff’s personal viewpoints with respect to
research, Defendant has the right to hire, retain and promote scientists whom will further the research
goals of the institution.


POINT III

PLAINTIFF HAS FAILED TO SHOW RETALIATION RELATING TO HIS FIRST
AMENDMENT CLAIM

For a public employee to succeed on a First Amendment retaliation claim under
§1983, he must show his speech was constitutionally protected, that he suffered an adverse
employment action, and that there is a causal relationship between his utterance of the speech and
the subsequent adverse employment action. Hoyt v. Andreucci, 433 F.3d 320, 327 (2d Cir. 2006).
For purposes of this Rule 56(b) motion it will be assumed that Plaintiff’s ideological views
constitute constitutionally protected speech. However, the plaintiff cannot satisfy the second
criteria for a retaliation claim, that is, that the plaintiff suffered an adverse employment action in
that he was terminated for reasons having nothing to do with his personal political views.

Plaintiff alleges that he lost his job and was “blacklisted” because of his political and
ideological viewpoints, yet testified in his deposition that he was working on a project which was
funded by an outside source and a finite lifetime.

A. This was a -- lifetime of these centers was 11 years.
Q. When you said lifetime of the centers, what does that mean? After 11
years what happens to them?
A. They ended.
Q. The funding dried up?
A. Yes, the funding ended
Q. It was 11 years. Would you consider it, say, a grant or source of funding?
How would you characterize it so I could refer to it correctly?
A. Well, you can call it grant if you want to.
Q. Stony Brook was the recipient of one of those grants?
A. That's correct.
Q. Who applied for that grant?
A.. Okay. This center was comprised of three institutions, separate
institutions. Stony Brook was one, Princeton University was the second,
and then there was Carnegie Institution of Washington, geophysical lab.

(Exhibit “F”, Plaintiff’s deposition p. 43)

Plaintiff was aware that his position was a term position, and testified that he
eventually intended to seek another position when his project was terminated.

Q Were there ever any opportunities for you to apply ?
A. Yes.
Q. Why did you not apply for those positions?
A. I wasn’t personally encouraged to apply, which that is one thing.
The other thing, that I had the position of the research. I had the
research position, and I was head in that research position, and
nobody indicated to me that they would want me to switch, pretty
much, from this position to a teaching position. And I personally
preferred to do the research, and if there was no reason for me to
change, then I just didn't think it was necessary. But I eventually
planned on applying when the time -- when the time would come.
When there would be danger that the money would run out, that
the funding for my position would run out.

(Exhibit “F”, Plaintiff’s deposition p. 43)

With respect to the defendant’s liability for the decision to terminate the plaintiff,
the protected speech must be a motivating factor in the adverse employment decision. See
generally Gronowski v. Spencer, 424 F.3d 285, 292 (2d Cir. 2005). The requisite causal
connection must be sufficient to warrant the inference that the protected speech was a substantial
motivating factor in the adverse employment action, that is to say, it would not have taken place
absent the employee’s protected speech. Morris v. Lindau, 196 F.3d 102, 110 (2d Cir. 1999).
Here, there is no evidence in the record of retaliatory animus on the part of any agent of the
Defendant. In fact, the record demonstrates that the Defendant assisted the Plaintiff in obtaining
employment elsewhere as soon as it became aware that the project would be terminated.

Plaintiff appears to allege a claim of a hostile working environment and retaliation
under the First Amendment. Plaintiff, however, has not set forth any facts or allegations to
support a claim of a hostile work environment. There has been no evidence that the Defendant
was even aware of Plaintiff’s political views. “ Accordingly, in the absence of any evidence
demonstrating Plaintiff's participation in a protected activity of which the Defendant was aware,
Plaintiff's retaliation claim must be dismissed.” Amendola v. Henderson, 182 F. Supp. 2d 263, 278
(E.D.N.Y. 2001).

"Feelings and perceptions of being discriminated against are not evidence of
discrimination. Plaintiff's 'sense' of being discriminated against is not evidence." Bickerstaff v.
Vassar College, 196 F.3d 435, 456 (2d Cir. 1999) (quoting Fisher I v. Vassar College, 70 F.3d
1420, 1439 (2d Cir. 1995).

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.


POINT IV

DEFENDANT IS ENTITLED TO QUALIFIED IMMUNITY

Even assuming that the Plaintiff can satisfy all three elements of a First Amendment
retaliation claim, the Defendant is nevertheless entitled to summary judgment. The United States
Supreme Court has rejected an absolute application of the First Amendment to the speech of
public employees. Pickering v. Board of Education of Township High School District 205, 391
U.S. 563 (1968). The Supreme Court in Pickering recognized that the state has an interest as an
employer in regulating the speech of its employees that differ significantly from those it possesses
in connection with regulation of the speech of the citizenry in general. 391 U.S. 563, 568. The
Pickering test provides an analytical framework within which to assess whether the government
employer made an adverse employment decision that would not have been made absent protected
conduct or retaliatory motive. Connick v. Myers, 461 U.S. 138, 142 (1983); Pickering v. Board of
Education, 391 U.S. 563, 568.

Under the Pickering test, if the factors in a retaliation case are demonstrated in plaintiff’s
favor, the defendants may still offer evidence that the employee’s protected conduct interfered
with the employer’s “effective and efficient fulfillment of its responsibilities to the public.” Frank
v. Relin, 1 F.3d 1317, 1329 (2d Cir. 1993). In balancing these interests the trial court determines
whether the interest of the employer in providing effective and efficient public services outweighs
the employee’s First Amendment right to free expression. Lewis v. Cowen, 165 F.3d 154, 162 (2d
Cir.) cert. denied, 528 U.S. 823 (1999). As a general rule, the application of the balancing test is a
question of law which is properly performed by the district court which considers whether the
statement[s] sought to be protected impairs discipline by superiors or harmony among co-workers,
has a detrimental impact on close working relationships or impedes performance of the speaker’s
duties or interferes with the regular operation of the enterprise. Id. at 161. Moreover, taken for
both proper and improper reasons, state action may be upheld if the action would have been taken
on the proper reasons alone. Graham v. Henderson, 89 F.3d 75, 79 (2d Cir. 1996). See also Mount
Healthy City School District Bd. Of Educ. v. Doyle, 429 U.S. 274 (1977). Thus, in Rambaldi v.
City of Mount Vernon, 2003 WL 23744272 (S.D.N.Y. 2003), the magistrate judge applied the
Pickering-Connick test in granting a motion for summary judgment in favor of the defendants.

In the instant case, even if the project had not been terminated by factors completely
beyond the Defendant’s control, employment decisions relating to which scientists to employ who
would support the research goals of the institution are completely within the discretion of the
Defendant.


POINT V

PLAINTIFF FAILS TO STATE A CLAIM UNDER 42 U.S.C. §1983

"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 L.Ed.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 685(1987). "Municipal liability
under § 1983 attaches where--and only where--a deliberate choice to follow a course of action is made
from among various alternatives by the official or officials responsible for establishing final policy
with respect to the subject matter in question." Pembaur v. City of Cincinnati, 475 U.S. 469, 483, 106
S.Ct. 1292, 1300, 89 L.Ed. 2d 452 (1986). "[A] municipality can be held liable only if the alleged
unconstitutional action implements an official policy or custom of the municipality, whether made by
its lawmakers or by those whose edicts or acts may fairly be said to represent official policy." Morris
v. Lindau, 196 F.3d 102, 111 (2 Cir. 1999)(citing Monell v. Department of Soc. Servs., 436 U.S. 658,
694, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978)).

Plaintiff has not alleged the existence of a municipal policy or custom in order to impose
municipal liability under §1983. The §1983 claim is not based on a distinct violation of a
constitutional right. Plaintiff has not shown that he was subjected to disparate treatment in any
manner. Accordingly, this claim must be dismissed.


CONCLUSION

Based upon the foregoing reasons, summary judgment should be granted and the complaint
against defendant should be dismissed in its entirety.

Dated: December 13, 2006
Hauppauge, New York

ELIOT SPITZER
Attorney General of the State of New York
Attorney for Defendant SUNY

By:______________________________

LORI L. PACK (LLP/8303)
Assistant Attorney General
300 Motor Parkway, Suite 205
Hauppauge, New York 11788
(631) 231-2424

To: Tibor Gasparik
Plaintiff Pro Se
352 Plad Blvd.
Holtsville, N.Y. 11742