Documentation to "My Case"

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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TIBOR GASPARIK,
.....................................................................................................................CV-05-03817 (SJF/ARL)
Plaintiff,

-against-
.............................................................................................................................. APPEAL OF
STONY BROOK UNIVERSITY
.................................................................................................................... SUMMARY JUDGMENT
Defendant.
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I am Plaintiff pro se in above referenced action and this appeal is submitted to the United States Court of Appeals for the Second Circuit in opposition to the summary judgment by the District Court of the Eastern District of New York (District Court), pursuant Rule 4(a)(1) of the Federal Rules of Appellate Procedure. The supporting documentation for this appeal 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.


I. Key points and legal issues:

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 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” (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 January 31, 2002, in gross violation of his true seniority status and under the excuse that “the project has ended” (E-28).

5. Yet, despite being the most senior and most valuable and accomplished scientist among all scientists participating in the project (E-29/1), and could be rated as one of the best faculty members (E-29/2), Plaintiff was the only one dismissed under this excuse.

6. Although, Plaintiff retained his position as Research Associate Professor at the Department of Geosciences, the 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 his 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 Master of Arts 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 (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 at the Department (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 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 (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: forcing him to leave.

16. 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 (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 November 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 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 the forgoing to be the primary 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.


II. The chain of actions relevant to the dismissal of the 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 January 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 January 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 Recommendations, 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).


III. 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 intention to dispose of the case.

4. The nunc pro tunc order showed that the District Court was more interested in finding an excuse to dispose 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 recommendations 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 recommendations by the Magistrate Judge were filed.

8. The 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.


IV. Plaintiff’s response to Report and Recommendations:

1. Under “Facts,” 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.

2. Under “Legal Standards” 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 the plaintiff’s “lack of legal training” to undermine his case, and thus his last opportunity to save his professional career.

3. Under “Subject Matter Jurisdiction” 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. 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. This perceived immunity from prosecution might explain why tenured professors feel free to discriminate against their conservative colleagues in hiring, retention and promotion, in clear violation of the First Amendment.

4. In another argument, 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.” 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, and resulted in near absence of conservative professors at most institutions of higher education. Perhaps, this is a good time for the Supreme Court to reconsider this misguided precedent.

5. In still another argument, Magistrate Judge states: “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.” Apparently, the Magistrate Judge draws a fine line between the “deprivations of civil liberties” pro se, and the deprivation of civil liberties suffered by plaintiff, which belongs to some kind of an inferior class of “alleged civil liberties” that does not deserve the protection of the law.

6. In the final argument to justify the self-proclaimed lack of jurisdiction as the sole reason for the dismissal of this case, Magistrate Judge concludes; “Accordingly, SUNY is entitled to sovereign immunity under the Eleventh Amendment.” Accordingly, the District Court concedes that SUNY and, by extension all her employees, are immune from being prosecuted for violating the United States Constitution.


V. Plaintiff’s Response to Opinion and Order:

The District Court 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 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 rejected 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 may also turn out to be one of the last opportunities 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. As a result, this country is now saddled with a communist-style system of education, where the future voters are exposed to incessant indoctrination in a communist-like ideology from kindergarten through college. How many of these citizens will 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.

Plaintiff has now concluded a review of most institutions that should be responsible for addressing his grievances, and should be held accountable for not doing so. The 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, the intellectual corruption of the academic establishment has become clearly visible. The issue is not just whether the 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.


VI. Cause of Action

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 grant judgment to plaintiff ordering the following:

1. To overrule the summary judgment by the District Court and reopen the case;
2. To compel the District Court to prosecute the case;
3. To appoint a legal counsel to the plaintiff;
4. To place the burden of proof on the defendant;
5. Any relief to plaintiff that this Court finds proper and just.

Dated: Holtsville, New York
August 3, 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