Documentation to "My Case"

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UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
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TIBOR GASPARIK,
Plaintiff-Appellant,
-against-
STONY BROOK UNIVERSITY,
Defendant-Appellee.
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Brief for the Plaintiff-Appellant Tibor Gasparik

TABLE OF CONTENTS

TABLE OF AUTHORITIES
STATEMENT OF THE SUBJECT MATTER & JURISDICTION
STATEMENT OF THE ISSUES PRESENTED FOR REVIEW
STATEMENT OF THE CASE
STATEMENT OF THE FACTS
ACTIONS LEADING TO THE DISMISSAL OF PLAINTIFF’S CASE
PLAINTIFF’S INTERPRETATION OF THESE ACTIONS
ARGUMENTS
POINT I
POINT II
POINT III
POINT IV
POINT V
POINT VI
POINT VII
CONCLUSION
CERTIFICATE OF SERVICE
APPENDIX

TABLE OF AUTHORITIES

Banks v. SUNY at Buffalo, No. CV 06-2392, 2007 WL 895505
Bd. of Tr. of the Univ. of Ala. v. Garrett, 531 U.S. 356, 363 (2001)
Dube v. State University of New York, 900 F.2d 587,594 (2nd Cir. 1990)
Fonseca v. Columbia Gas Sys., Inc., 37 F. Supp. 2d 214, 231W.D.N.Y.1998)
Garcia v. SUNY Health Sciences Center of Brooklyn, 280 F.3d 98, 107 (2001)
Hans v. Louisiana, 134 U.S. 1 (1890)
Pennhurst State School v. Halderman, 465 U.S. 89, 104 S. Ct. 900 (1984)
Towers v. SUNY Stony Brook, No. CV 04-5243(FB), 2007 WL 1470152
Will v. Michigan Dept. of State Police, 491 U.S. 58, 66, 109 S. Ct. (1989)

UNITED STATES CONSTITUTION
First Amendment
Eleventh Amendment
Fourteenth Amendment

FEDERAL STATUTES
1 U.S.C. § 1
28 U.S.C. § 41
28 U.S.C. § 1294
28 U.S.C. § 1331
28 U.S.C. § 1343
42 U.S.C. § 1983
42 U.S.C. § 1985
42 U.S.C. § 1986

FEDERAL RULES OF APPELATE PROCEDURE
Rule 4(a)(1)

EXHIBITS
Exhibits are available in hard copy in the case file in the Clerk’s Office of the
District Court and on plaintiff’s Web site: http://suny-stonybrook.blogspot.com/ .


STATEMENT OF THE SUBJECT MATTER & JURISDICTION

I am Plaintiff pro se in the above referenced action:

(a) This is a civil action for damages and injunctive relief brought pursuant to the Right to Free Speech and Freedom of Association under the First Amendment, 1 U.S.C. section 1 and 42 U.S.C. sections 1983, 1985-6. The jurisdiction of the United States District Court of the Eastern District (District Court) is invoked pursuant to 28 U.S.C. sections 1331 and 1343. The unlawful practices alleged below have been committed within the Eastern District of New York.

(b) The District Court falls under the jurisdiction of the United States Court of Appeals for the Second Circuit (this Court) pursuant to 28 U.S.C. sections 41 and 1294, and this appeal is submitted pursuant Rule 4(a)(1) of the Federal Rules of Appellate Procedure.

(c) Plaintiff commenced this action on 08/11/2005. Defendant served the answer on or about 09/09/2005. The case was dismissed on 07/09/2007. Notice of appeal was filed on 08/03/2007. Electronic Index to Record on Appeal was sent to this Court on 08/07/2007.

(d) This appeal is from a summary judgment that disposes of all claims with respect to all parties.


STATEMENT OF THE ISSUES PRESENTED FOR REVIEW

The District Court dismissed the plaintiff’s case for lack of subject matter jurisdiction, invoking defendant’s sovereign immunity based on the Eleventh Amendment of the United States Constitution.


STATEMENT OF THE CASE

Plaintiff was employed between April 1985 and January 2002 as Lab Manager and Research Associate Professor at the Department of Geosciences, Stony Brook University. He performed research at levels that could be rated among the best in the world by any standards of scholarly achievement. However, for most of his employment, he was subject to a series of hostile actions by his superiors, with the clear intention of making his work difficult and life miserable and thus to force him to leave employment. When these actions failed, Plaintiff was dismissed in January 2002 under the excuse that “the project has ended.”

For many years plaintiff searched in vain for an explanation for the startling discrepancy between his superior performance and accomplishments as a scientist, and the indifferent to hostile behavior by his colleagues. Several of his colleagues devoted extraordinary amounts of time and effort to a single goal: to force plaintiff to leave. In the last few years, it has become evident that most universities and colleges in the United States discriminate against conservative professors in hiring, retention and promotion. Plaintiff has never tried to hide his conservative views, nor his record of voting for Republican candidates, but cannot name a single faculty member at the Department or other university professor who is not a liberal. 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; in fact, he is a registered Republican. Plaintiff believes his political orientation is the sole reason for the acts of discrimination and persecution against him by his colleagues at the Department, university administrators, and other members of the scientific community.


STATEMENT OF FACTS

The supporting documentation consisting of Exhibits (E), Docket entries (D) and Links (L) has been posted under Links on plaintiff’s Web site: http://suny-stonybrook.blogspot.com/ and is available in hard copy in the case file in the Clerk’s Office of the District Court.

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 always received the highest evaluations and performed research at 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” (E – “B”) and 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 employment. This was summarized in the document: “Account of my Persecution” (E – “A”) and the supporting documentation (E – 1-60).

4. When these actions failed, plaintiff was dismissed on 1/31/2002, 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 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 proposals for review immediately following his dismissal (E-35).

8. Plaintiff’s complaints to the Provost (E-38) and the 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 Master of Arts in Teaching (MAT) degree in Earth Science in May 2005, and hoped to start a new career as a 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 (E – “C”).

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 (E – “E”).

12. When plaintiff posted at the end of 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, plaintiff was forced to seek justice through the legal system and filed a complaint at the United States District Court in Central Islip on 8/11/2005 (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 (E – “B”), and the indifferent to hostile behavior by his colleagues at the Department of Geosciences (E – “A”).

15. Several of plaintiff’s colleagues at the Department devoted extraordinary amounts of time and effort to a single goal: to force him to leave.

16. In the last few years, it has become evident that most universities and colleges in the United States discriminate against conservative professors in hiring, retention and promotion (E – “D”). This fact is based on surveys, voter registration records, voting records and political donations (E – “F”).

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 11/2/2004 (E – “G”).

18. Plaintiff has never tried to hide his conservative views nor his record of voting for Republican candidates, but cannot name a single faculty member at the Department or other university professor who is not a liberal.

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; in fact, he is a registered Republican.

20. Plaintiff believes his political orientation is the sole reason for the discrimination against him in hiring, retention and promotion, and for the acts of persecution by his colleagues at the Department, university administrators, and other members of the scientific community.


ACTIONS LEADING TO THE DISMISSAL OF PLAINTIFF’S CASE

1. Defendant defaulted in answering plaintiff’s complaint filed on 8/11/2005 (D-1).

2. Plaintiff’s motion for default judgment (D-4) filed on 9/8/2005 was denied (D-10).

3. Defendant failed to file a motion to dismiss the case on court-ordered deadline (D-9).

4. Defendant refused to cooperate in discovery despite repeated requests by plaintiff (D-14, D-15, D-16), and responded only when the last request was posted in the case docket on 1/18/2006 (Exhibit – “H”).

5. Magistrate Judge biased the outcome of the discovery by denying most of plaintiff’s motions to compel the defendant to produce documents relevant to the case (D-20, D-23, D-27, D-35, D-38).

6. On 5/10/2006, plaintiff’s motion to grant access to defendant’s employee’s file was denied (D-38). This was the last time the District Court responded to a plaintiff’s motion before the case was dismissed.

7. Following the discovery, plaintiff proposed to the defendant on 6/5/2006 to participate in a mediation program (D-43).

8. On 8/1/2006, plaintiff filed a letter motion to bring to the District Court’s attention that the defendant did not respond to the proposal to participate in a mediation program, and asked the District Court to compel the defendant to mediate (D-44).

9. On 8/2/2006, defendant declined to participate in mediation (D-45).

10. In response, plaintiff carried out a search in August and September for a legal counsel willing to represent the plaintiff in the anticipated trial, but without any success.

11. On 9/12/2006, plaintiff reminded the District Court to rule in response to the motion from 8/1/2006 to compel the defendant to mediate (D-46).

12. Instead of compelling the defendant to mediate, on 9/25/2006 the District Court revived nunc pro tunc (D-47) a motion by the defendant from 1/26/2006 for extension of time to file a motion to dismiss the case (D-17), despite the fact that the defendant had been given an opportunity to file a motion to dismiss the case in the order by the Magistrate Judge on 10/12/2005, with the deadline on 11/14/2005, and failed to do so (D-9).

13. On 10/2/2006, plaintiff filed a motion to the District Court to compel the defendant to file a motion to dismiss the case on a firm date set by the court (D-48). There was, again, no response from the court.

14. On 11/6/2006, plaintiff applied for a tenure-track faculty position at the Department of Geosciences (E – “I”). This was the first time the Department advertised a tenure-track faculty position since the plaintiff’s dismissal on 1/31/2002. The deadline for the application was 12/15/2006, and the announced starting date was 9/1/2007.

15. After repeated requests by plaintiff, the Departmental Chair, Professor John B. Parise, confirmed on 12/15/2006 that the plaintiff’s application was under consideration (E – “J”), and that the search committee will be meeting and evaluating applications in the “next couple of months.” The decisions are usually made in March or April, after a series of interviews, to assure that the selected candidate has enough time to start in September.

16. On 1/23/2007, defendant filed a motion for summary judgment (D-50) with the plaintiff’s response in opposition (D-51).

17. On 1/25/2007, the District Court referred the motions to the Magistrate Judge for Report and Recommendation (D-53).

18. Plaintiff was not aware of any action by the District Court or defendant from 1/25/2007 to 6/19/2007.

19. Between 4/30/2007 and 5/2/2007, a jury trial was held in the case of Caruso v. Massapequa Union Free School District, a civil rights case similar to plaintiff’s, which resulted in grave injustice to the moving party.

20. On 5/31/2007, entries 54-57 were made in the case docket.

21. On 6/5/2007, plaintiff filed a motion requesting the District Court to set a date for the trial (D-58).

22. On 6/19/2007, plaintiff’s application for a faculty position was rejected (E – “K”).

23. On 7/2/2007, Magistrate Judge filed Report and Recommendation, recommending the dismissal of the case for lack of subject matter jurisdiction (D-59).

24. On 7/5/2007, plaintiff filed an objection to the recommendation, and requested that the District Court appoints a legal counsel and defers to pass judgment in response until the plaintiff can file his objections with the help of an appointed legal counsel (D-60).

25. On 7/9/2007, the District Court denied the plaintiff’s request for legal counsel and dismissed the case (D-61).


PLAINTIFF’S INTERPRETATION OF THESE ACTIONS

1. Defendant defaulted in answering plaintiff’s complaint and failed to file a motion to dismiss the case on purpose, continuing in the previously well-documented policy of stonewalling plaintiff’s actions.

2. Repeated rulings by the Magistrate Judge against plaintiff seriously impeded plaintiff’s efforts to compel the defendant to produce crucial documents relevant to the case.

3. After 5/10/2006, the District Court ignored all plaintiff’s motions, with the clear intention to dispose of the case.

4. The nunc pro tunc order showed that the District Court was more interested in finding an excuse for disposing of an inconvenient case than to assure that justice be served.

5. Defendant advertised new faculty positions to open the possibility to settle if the case goes to trial.

6. Magistrate Judge waited for the outcome of the Caruso v. Massapequa trial to base her recommendation on its outcome.

7. Entries in the case docket on 5/31/2007 were made in order to prepare the docket for the dismissal of the case; thus the decision to dismiss the case was made before the recommendation by the Magistrate Judge was filed.

8. Defendant rejected plaintiff’s application and thus avoided hiring a conservative professor after being assured that the case would be dismissed.

9. Hence the District Court’s actions are directly responsible for the plaintiff’s loss of this employment opportunity.

10. The self-proclaimed lack of subject matter jurisdiction by the District Court is not a valid legal argument but an excuse to dispose of an inconvenient case; thus the court lacks the resolve or ability to compel the defendant to hire even a single conservative professor.


ARGUMENTS

Arguments are in response to Report and Recommendation by the Magistrate Judge Arlene R. Lindsay, filed on 07/02/2007 (D-59), and to Opinion and Order by the District Judge Sandra J. Feuerstein, filed on 07/09/2007 (D-61).

POINT I: Under “Facts,” the Magistrate Judge pointed out that plaintiff “chose not to apply for positions which might allowed him to continue his employment as a professor with SUNY because ‘he wasn’t personally encouraged to apply.’” This point is moot by now since plaintiff recently applied and was rejected by essentially the same faculty, thus demonstrating that the faculty has never intended to hire him in a permanent position.

POINT II: Under “Legal Standards” the Magistrate Judge states: “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.’” Plaintiff is not aware of any leniency resulting from his pro se status. On contrary, plaintiff believes that the District Court stonewalled him since May 2006. It is also evident to plaintiff that the court took full advantage of plaintiff’s “lack of legal training” in the effort to dispose of his case.

POINT III: Under “Subject Matter Jurisdiction” the Magistrate Judge offers what appears to plaintiff as a convoluted interpretation of the Eleventh Amendment: “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.” This interpretation, in essence, concedes that state universities, and by extension, tenured professors, are above the law. However, 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, for example, in Dube v. State University of New York, 900 F.2d 587,594 (2nd Cir. 1990), Garcia v. SUNY Health Sciences Center of Brooklyn, 280 F.3d 98, 107 (2001), Towers v. SUNY Stony Brook, No. CV 04-5243(FB), 2007 WL 1470152, at *4 (E.D.N.Y. May 21, 2007), and Banks v. SUNY at Buffalo, No. CV 06-2392, 2007 WL 895505, at *7 (W.D.N.Y. March 22, 2007), it has obviously not been a sufficient ground for dismissal in many other cases. It is also evident that this perceived immunity from prosecution could explain why tenured professors feel free to discriminate against their conservative colleagues in hiring, retention and promotion, in clear violation of the First Amendment.

POINT IV: In another argument, the Magistrate Judge states: “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)).” If this is the case, the Supreme Court is apparently responsible for creating a legal environment that permitted 40 years of discrimination, persecution and purges of conservative scholars in violation of the First Amendment, resulting in near total absence of conservative professors at most institutions of higher education. A reconsideration of this misguided precedent by the Supreme Court is long overdue.

POINT V: In the same argument, the Magistrate Judge cites “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” from Will v. Michigan Dept. of State Police, 491 U.S. 58, 66, 109 S. Ct. 2304, 2310 (1989). Hence, the Magistrate Judge chooses to draw a fine line between the “deprivations of civil liberties” per se, and the deprivation of civil liberties suffered by plaintiff, which apparently belongs to some kind of an inferior class of “alleged civil liberties” that does not deserve the protection of the law.

POINT VI: In the final argument to justify the self-proclaimed lack of jurisdiction as the sole reason for the dismissal of this case, the Magistrate Judge concludes; “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.” Apparently, the District Court concedes that SUNY is immune from being prosecuted for violating the United States Constitution, if the State of New York consents. However, for States to claim such sweeping right violates the Fourteenth Amendment of the Constitution.

POINT VII: In her Opinion and Order, the District Judge denied the appointment of a legal counsel requested by plaintiff for the following reasons:

1. Plaintiff has not established that he is unable to afford counsel;
2. Plaintiff’s position does not appear to be one of substance.

Since the plaintiff’s case was dismissed on the basis of a sole argument, for lack of subject matter jurisdiction, plaintiff’s ability to afford a counsel or the merit of his case should be of no relevance. But since the District Court chose to rule on these two points, plaintiff will address them.

1. Plaintiff’s average earnings in the last 5 years were about 10% of what they had been before he was dismissed and blacklisted (E – “L”). Plaintiff has made substantial investment in time and effort to qualify for and find any position in education; a field for which he is best qualified. Yet, all these efforts were totally in vain. Plaintiff’s best opportunity to continue as an educator in a leave-of-absence replacement position at Ralph G. Reed Middle School in the Central Islip School District was denied under the excuse that the applicant was “unemployable” (E – “E”). This is the same kind of excuse used in the past for job applicants on “the list.”

2. Plaintiff has presented to the District Court what may turn out to be the best-documented case of discrimination against a conservative scholar in higher education. This case may also turn out to be the last opportunity for the judicial system to address and remedy 40 years of discrimination, persecution and purges of conservative scholars at the institutions of higher education in this country, which resulted in near total absence of conservative professors at the said institutions. Consequently, this country is now saddled with a communist-style system of education totally controlled by liberals, where the future voters are exposed to incessant indoctrination in a communist-like ideology from kindergarten through college (Link 120). How many of these citizens would still vote for a conservative president? This education system is inconsistent with the democratic principles this nation professes to promote and defend, is in violation of the United States Constitution, and detrimental to the advancement of science. Yet, the District Court has failed to see any “substance” in the plaintiff’s complaint.


CONCLUSION

Plaintiff has now concluded a review of most public institutions that should be responsible for addressing his grievances, and should be held accountable for not doing so. Plaintiff has, so far, failed to find a single public official that would be willing to see the “substance” in the plaintiff’s complaint, despite the fact that, since the plaintiff’s dismissal from his employment, the intellectual corruption of the academic establishment has become clearly visible (Link 150). The issue is not just whether plaintiff has a case of substance, the broad issue here is whether any conservative scholar in higher education, regardless of the merit of his or her case, can find a venue to reach justice, or even find anyone willing to listen. If the District Court does not have the jurisdiction, who does? If the merit of the plaintiff’s case is not of relevance, why wasn’t his case dismissed on filing? Why it took two years for the District Court to decide that it had no jurisdiction? Wherefore, plaintiff believes that the lack of subject matter jurisdiction is not a valid legal argument but a convenient excuse to dispose of an inconvenient case.

Plaintiff believes he is a victim of a nation-wide conspiracy by the liberal elite to take over control of public institutions, referred to as social revolution from within (Link 280). This is being accomplished by discrimination in hiring against American citizens who are conservative, suspected of being conservative, or prefer to remain apolitical, and by persecution and purges of those hired. After taking complete control of these institutions, rules, regulations, laws, merit and evidence are selectively used and applied to benefit only liberals. The long-term goal is to turn conservative citizens into an underclass by denying them education, equal protection under law, and access to employment with decent wages.

By the above-described action, the District Court denied plaintiff:
1. Fair due process;
2. Impartiality;
3. Mediation;
4. Legal representation;
5. A day in court;
6. Justice.

WHEREFORE, plaintiff respectfully asks this Court to rule in favor of the appellant and grant judgment ordering the following:

1. To reverse the summary judgment by the District Court;
2. To remand the case for a fair and impartial trial before an unprejudiced jury;
3. To appoint a legal counsel to the plaintiff;
4. To place the burden of proof on the defendant;
5. To compel the defendant to conduct a survey of the political affiliation of its tenured faculty;
6. Any relief to the plaintiff that this Court finds just and proper.

Dated: Holtsville, New York
September 17, 2007


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


TO: Carol Fischer
Office of the Attorney General
Division of Appeals and Opinions
120 Broadway – 25th Floor
New York, New York 10271

___________________________________________________________________


UNITED STATES COURTS OF APPEALS
FOR THE SECOND CIRCUIT
------------------------------------------------------- X
TIBOR GASPARIK,
Plaintiff,
-against-
STONY BROOK UNIVERSITY,
Defendant.
------------------------------------------------------- X

CERTIFICATE OF SERVICE

I, TIBOR GASPARIK, Plaintiff-Appellant pro se, hereby certify under penalty of perjury that on September 17, 2007, I served by United States Mail a copy of a Brief for the Plaintiff-Appellant and a copy of an Appendix for the Plaintiff-Appellant at the following address:

Carol Fischer
Office of the Attorney General
Division of Appeals and Opinions
120 Broadway – 25th Floor
New York, New York 10271

Dated: Holtsville, New York
September 17, 2007


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

___________________________________________________________________


Appendix for the Plaintiff-Appellant


Table of Contents

ORIGINATING COURT DOCKET SHEET
COMPLAINT (D-1)
ANSWER (D-5)
REPORT AND RECOMMENDATION (D-59)
OPINION AND ORDER (D-61)
JUDGMENT (D-62)
DECLARATION (D-63/2)