Documentation to "My Case"

-
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