The opinion of the court was delivered by: Seybert, District Judge.
Plaintiff Suzanne M. Pemrick, Ph.D., who has proceeded pro se
throughout most of this litigation, sues the State University
of New York; the State University of New York at Brooklyn;
Alfred Stracher, Ph.D.; and Richard H. Schwarz, M.D., pursuant
to Title VII of the Civil Rights Act, 42 U.S.C. § 2000e, et
seq. ("Title VII"), and the Age Discrimination in Employment
Act, 29 U.S.C. § 621-634 ("ADEA"), for alleged sex and age
discrimination and sexual harassment. Defendants Stracher and
Schwarz are sued only in their official capacities. After
nearly a decade of litigation and numerous protracted discovery
disputes, the defendants bring the present motion for summary
judgment, arguing primarily that SUNY was not and never has
been plaintiff's employer. For the reasons discussed below, the
motion is granted in part and denied in part.
At the outset, it is clear from the parties' respective
statements pursuant to Local Civil Rule 56.1 that there are
many disputed issues of fact. As discussed infra, while some
of these facts are irrelevant to the issues before the Court,
others represent genuine issues of material fact requiring that
much of the motion be denied.
Plaintiff Suzanne Marie Pemrick, Ph.D. ("Pemrick") met
defendant Alfred Stracher, Ph.D. ("Stracher") in 1972.
Affidavit of Suzanne M. Pemrick ("Pemrick Aff."), ¶ 2. At the
time, Pemrick was completing her post-doctoral research
training, while Stracher had just been named Chair of the
Department of Biochemistry at the State University of New York
Health Science Center at Brooklyn ("SUNY-HSCB"), formerly known
as Downstate Medical Center ("SUNY-DMC").*fn1 Id.,
Affidavit of Alfred Stracher ("Stracher Aff."), ¶ 1.
In 1977, Pemrick, having just completed a fellowship at Mount
Sinai School of Medicine, was looking for a tenure-track
faculty position in a medical school or research institution.
Pemrick Aff., ¶¶ 4-5. Stracher told Pemrick that a tenure-track
position was available in his department and invited her to
apply for this position. Id., ¶ 5. Shortly after Pemrick's
interview at SUNY-DMC. Stratcher told her that there was a
hiring freeze within SUNY that prevented the institution from
filling the vacant position. Id., ¶ 6. According to Pemrick,
Stratcher nevertheless promised her that as soon as the freeze
was lifted, she would be appointed to the next available
tenure-track position at SUNY, Id. In the interim period.
Stratcher told Pemrick to submit grant applications to both the
National Institutes of Health ("NIH") and the National Science
Foundation ("NSF"). Id., ¶ 7. Stratcher advised her to submit
the applications under the auspices of SUNY-DMC, with Pemrick
listed as principal investigator, because both NIH and NSF
required that the principal investigator have a faculty
appointment. Id. Pemrick thereafter submitted the
applications with the sponsorship of Stratcher and SUNY-DMC.
Stratcher, not surprisingly, remembers these 1977 events
differently. Stratcher states that he knew at the time that
Pemrick's fellowship at Mount Sinai was ending, and that she
had a grant application pending — an application that would be
jeopardized if she did not relocate to an institution that
would sponsor her research. Stracher Aff., ¶ 3. Therefore,
Stracher assisted Pemrick in obtaining a temporary position as
a technical specialist for the Research Foundation of
SUNY.*fn2 a private corporation located at the SUNY-DMC
campus, beginning in the fall of 1977. Id. Thereafter.
Stracher continued his goodwill toward Pemrick by helping her
obtain an unpaid temporary, non-tenuretrack position as an
Assistant Professor in the Department of Biochemistry. Id.
This appointment enabled Pemrick to carry out her NIH grant
research at the SUNY-DMC campus. Id.
In approximately February 1978, Pemrick learned that her NIH
grant application had been approved and that the grant would be
funded for three years. Pemrick Aff., ¶ 8. Pemrick's NIH grant,
although her first, was one of the largest grants at SUNY-DMC,
on par with the tenured professors: Id. This grant continued
to be one of the largest at SUNY-DMC for the next eight years.
A few months later, in May 1978, Stracher told Pemrick that he
was initiating paperwork necessary for her SUNY-DMC
appointment, at the rank of Assistant Professor. Id., ¶ 9;
see also Exh. SPA-#3. In August 1978, Pemrick received a
letter of appointment from Edward Dorfman, the Vice President
of SUNY-DMC, indicating that the President of SUNY-DMC had
extended Pemrick a temporary appointment as an Assistant
Professor in the Department of Biochemistry. Id. The
appointment was effective April 1978, with a salary of $23,000
supplied via the Research Foundation of SUNY. Id.; see also
Exh. SPA-# 4. Pemrick accepted this appointment. Id., ¶ 10.
At this time, all tenured faculty and tenure-track appointments
in the Biochemistry Department at SUNY-DMC were male. Id., ¶
11; see also Exh. SPA-# 6.
In 1979, according to Stracher, Pemrick applied for a vacant
SUNY-salaried tenure-track position in the Department of
Biochemistry. Stracher Aff., ¶ 5. Stracher maintains that
Pemrick was not selected for this position because she was not
the best qualified candidate. Id. At the time, Pemrick was
thirty-seven years old.*fn3 Id.
However, there is a factual discrepancy regarding plaintiff's
application for this position. Pemrick recalls that she became
aware of an available tenure-track position in the Biochemistry
Department in the fall of 1978. Pemrick Aff., ¶ 15. Upon
hearing of this opening, Pemrick reminded Stracher of his prior
commitment to her, and applied for the position. Id. Around
this time, Pemrick alleges that she began to feel harassed and
discriminated against on the basis of her sex. Id., ¶ 16.
Among Pemrick's complaints of harassment are the following, all
of which occurred following her application for the open
position in the fall of 1978. First. Dr. Chan, a member of the
all-male search committee referred to Pemrick as a "postdoc"
although she was a faculty member. Id. Another member of the
committee, Dr. Detwiler, stated that if he were Pemrick, he
would find it difficult to see less-qualified applicants being
interviewed for the position, but that Pemrick should just go
away and pout about it. Id. Later, upon asking Detwiler about
the status of her application, Pemrick was asked, "Is the
reason you want to know so you can do something about it?"
Id., ¶ 17.
Later, Pemrick had several of what she classifies as harassing
and intimidating encounters with Dr. Feinman, the chair of the
search committee. Pemrick Aff., ¶ 18. One day, while Pemrick
was working in the library, Feinman confronted her and told her
that if she continued to push her application for a
state-funded line in the Biochemistry Department, he would see
to it that she never got one. Id. Another time, Feinman
entered Pemrick's small office and blocked her exit. Id. He
again discussed with her the application for the tenure-track
position, repeatedly punctuating his conversation with the
words "fuck you." Id.
Feinman also indicated to Pemrick that if she kept pushing for
the position, she would make everyone angry, including
Stracher. Id. Feinman told her that she could always go to
court, but that if she did, her career would be jeopardized
because other institutions would be told. Id. He also told
Pemrick that even if she got the position, the faculty would
never vote her tenure. Id. Feinman also said that the faculty
would not honor Stracher's commitment to her when she joined
the department. Id. He also referred to her as a post-doc,
even though she pointed out her Assistant Professor title.
On another occasion, Pemrick was told by a male member of the
Biochemistry Department, Dr. Gerber, that the search committee
was considering filling the position with two people who had
the same specialty as Pemrick. Pemrick Aff. ¶ 19. Gerber told
Pemrick that her problem was that she "didn't know enough when
[she] was being screwed to relax and enjoy it." Id.
Pemrick, however, did not follow Gerber's advice. Instead, she
took her complaints to Leslie Rogowsky, an Affirmative Action
Officer.*fn4 Upon meeting with Rogowsky, Pemrick requested a
copy of the position listing for the vacancy in the
Biochemistry Department. Pemrick Aff., ¶ 20. Pemrick discovered
that the position had been advertised in Science magazine in
November 1977 — shortly before Pemrick's arrival at SUNY-DMC.
Id. Rogowsky told Pemrick that the department did not select
a candidate from that search, but had re-defined their need,
and placed another ad in Science for a neurochemist. Id.
Plaintiff believes that the position was re-defined in order
prevent her from applying and receiving a position for which
she was qualified. Id.
Pemrick also alleges that, as she pursued this first
application, Stracher's staff began to refer to her as an "evil
woman," and were told that bad things would happen to them if
they spoke to her. Pemrick Aff., ¶ 22. Rogowsky told Pemrick
that Stracher was becoming very negative toward her. Id., ¶
23. Stracher himself threatened to refuse to sign the yearly
continuation of Pemrick's grant if she continued to pursue her
application for a state line at SUNY-DMC. Id., ¶ 24.
In November 1979, the department position was filled by Dr.
Alan Gintzler, who was appointed as an Assistant Professor.
Id. The SUNY-DMC Affirmative Action Search Process Report
indicates that six persons applied for the position, five males
and one female. See Exh. SPA-# 11. Neither Pemrick's name nor
Gintzler's name was listed as an applicant. Id. The form,
which is signed by Stracher. but not by an affirmative action
reviewer, indicates that the position became available on
January 1, 1978; that the search process began on March 1,
1978; and that Gintzler's appointment was effective November 1,
1979. Id. Gintzler was to be paid on a "State Line" rather
than on a "Research Line," at salary of $24,500. Id.
Pemrick nevertheless continued her research. In 1980, Stracher
approved and supported Pemrick's application to NIH for a
Research Career Development Award. Pemrick Aff., ¶ 27. Stracher
provided a "chairman's commitment statement" for the
application, but cited SUNY's hiring freeze as the reason why
Pemrick had not been given a tenure-track position.*fn5
Id. In the end, the NIH did not make this award to Pemrick,
principally because of the uncertainty of long-term commitment
to Pemrick from SUNY-DMC. Id., ¶ 28.
Despite not receiving this award, Pemrick's NIH research grant
was renewed for an additional five years, at twice the level of
funding per year. Id., ¶ 29. However, she continued to learn
that she was being treated differently than similarly-situated
male faculty members. For example, Dr. Feinman, who originally
was paid through the Research Foundation of SUNY, was moved to
a regular SUNY tenure-track line at the time he applied for a
Research Career Development Award. Id., ¶ 30; see also Exh.
SPA-# 12. Moreover, SUNY promoted at least two male faculty
members to full professorships — Dr. Lerner in the early 1980s
and Dr. Kesner in 1989 — who did not have active research
grants at the time of their appointments. Id., ¶ 32.
Plaintiff categorizes the sexual harassment and discrimination
she suffered as Level I Harassment to Level VII Harassment. The
levels of harassment appear to be indicative of both severity
and chronology. Pemrick Aff., ¶ 33.
Among these claims of harassment is a series of gender-specific
remarks made to Pemrick, and the continuation of a "wall of
hostility" against her between 1980 and 1983. Id. For
example, Pemrick alleges that Stracher threatened her by
stating to her that he would personally prove to her that being
good at what she did would get her nowhere, and that he was
going to make it difficult for her at SUNY-DMC Id., ¶ 34. In
late 1980 or early 1981, Stracher told Pemrick that if she
purchased any more equipment between then and April, she could
put wheels on the
equipment so that he could wheel it out when he got rid of
In approximately May 1981, Pemrick claims that Dr. Detwiler
began a practice of verbal gender harassment that was to
continue for the next seven years. Pemrick Aff., ¶ 34. Pemrick
claims that, in response to virtually any comment she made —
regardless of context — Detwiler consistently respond "you
bitch, complaining again." Id. Pemrick claims that at times.
Detwiler even would interrupt conversations she was engaged in
with others, only to say the same thing. Id.
The following year, Pemrick claims that Stracher repeatedly
obstructed her professional activities. Specifically, Stracher
rescheduled her research seminar, failed to inform staff that
the seminar, failed to rescheduled, and then arranged for the
seminar room to be painted on the day scheduled for the seminar
to be presented. Id. In the same time frame, Pemrick's
laboratory was scheduled to be painted, but Pemrick was
informed by an individual in the Facilities and Planning
Department that Stracher had removed her laboratory from the
list of labs to be painted, and that her lab was the only lab
at SUNY-DMC to be removed from the list. Id. After her lab
finally was painted, Dr. Silverman of the Biochemistry
Department allegedly asked Pemrick, "when are you going to hang
Pemrick alleges that other members of the department also
harbored sexually discriminatory attitudes and manifested these
attitudes in the form of sexually hostile treatment and
comments. For example, Pemrick spent eight years during which
her lab was next door to the office of Dr. Gintzler. Id.
However, during this time Gintzler never spoke to her. Id. On
occasion, however, Gintzler would attempt to collide with
Pemrick as they walked down the hall in opposite directions.
Id. Additionally, in November 1983, Dr. Kesner entered
Pemrick's lab and told her, out of the blue, that he did not
know if he should be alone with a woman. Id. Later that day,
Kesner allegedly interrupted a conversation Pemrick was having
with Dr. Lerner to tell Pemrick to stop talking to Lerner
because Lerner was married. Id.
On another occasion, in fall of 1983, Pemrick claims that upon
asking Dr. Detwiler about a scientific meeting he had attended
in Sweden, Detwiler responded, "Do you mean how many women did
I successfully impregnate?" Id. Pemrick also claims that
Stracher intentionally obstructed her hiring of Sharon Dillon,
an African-American, by refusing to sign a personnel form, even
though such signatures usually were given pro forma. Id.
Pemrick also alleges that she was removed from the faculty
mailing list at Stracher's instructions. Id.
Pemrick's self-styled Level II Harassment began to occur in
1982 or 1983, after she had begun participating in a Committee
on Women's Concerns at SUNY-DMC. Pemrick Aff., ¶¶ 35, 38. During
this time frame, Dr. Detwiler, apparently in the presence and
with the agreement of Stracher, asked Pemrick how there could
be a committee at SUNY-DMC that was devoted to women's
concerns, since women have no concerns other than their
menstrual periods. Id. ¶ 38. Pemrick did not complain about
this incident because the Affirmative Action Officer had told
her that there was no complaint process for her at SUNY-DMC
about SUNY-DMC employees because Pemrick was paid by the
Research Foundation of SUNY. Id.
Stracher also allegedly told Pemrick that she was becoming too
visible at SUNY-DMC and told her to keep a lower profile.
Id., ¶¶ 40-41.
Toward the end of October 1983, Pemrick discovered that her
laboratory was to be partitioned, with the result that her
remaining part of the lab would lack water, electric, vacuum
and gas services. Id., ¶ 44. She was informed that Dr.
Stracher had ordered the Facilities and Planning Department to
construct this partition. Id. Upon seeing this partition in
Pemrick's lab, a faculty member whose lab was located across
the hall from Pemrick's told her that she should be conscious
of her physical safety and avoid situations where she would be
alone with Stracher. Id. ¶¶ 45-46. A few days later, Dr.
Kesner approached Pemrick and told her that she was a menace
and the department was better off before it had any women.
Id., ¶ 47.
Pemrick's Level III harassment constitutes a series of
incidents involving Stracher's allegedly bizarre and irrational
behavior, including requests that plaintiff write a letter
stating that she refused to teach, even though she wanted to
teach; obstruction of her daily research activities; delaying
the hiring of Pemrick's staff; screaming at her; and physically
threatening her by backing Pemrick into a corner of her
laboratory while in a "highly emotional and agitated state."
Id., ¶¶ 48-60. Pemrick also claims that during this time
frame, Stracher continued to block her attempts to receive a
state-funded line in his department or to make a lateral move
to another department. Id., ¶ 73. At one point, an external
evaluator visiting SUNY-DMC from Harvard University told
Pemrick that Stracher could not stand competition from a woman.
Id., ¶ 74.
Also relevant to plaintiff's claims is that in 1985, 1986 and
1987, Pemrick wrote several letters to SUNY-DMC officials in
Brooklyn, as well as SUNY Central Administration officials in
Albany. Stracher Aff., ¶ 8. These letters complained that the
Department of Biochemistry, and Stracher in particular, had
discriminated against Pemrick on the basis of her gender. Id.
In June 1987, SUNY-DMC president Donald S. Scherl, M.D.,
appointed an ad hoc committee chaired by Dr. George Frangos to
review Pemrick's allegations. Id. In August 1987, this
committee concluded that no gender discrimination had occurred.
Id. A report of the committee's findings was issued to
Scherl. Affidavit of Pamela Miller Williams ("Williams Aff."),
¶ 7. Defendants, however, have not provided a copy of the
committee's conclusions or report to the Court, have not
specified who served on that committee, and have not presented
any document indicating what evidence, if any, it relied upon
in reaching this conclusion.
Defendants also leave out the fact that the ad hoc committee
did not exonerate Stracher from any finding of misconduct. In
fact, at least one member of the ad hoc committee expressed his
dismay about Stracher's treatment of Pemrick, and the prospect
that Pemrick's entire career had been ruined by Stracher. See
Exh. MOL-# 29. Dr. Kiyomi Koizumi, in a memorandum to two
members of the committee, expressed his strong desire to do
more than simply send the committee's recommendation to Scherl.
Id. Koizumi told Frangos and Rudolf M. Williams*fn7 that
he thought the committee was handling "a sort of life and death
situation of a scientist and our faculty member." Id.
Koizumi concurred with the committee members that no sexual
discrimination had occurred regarding Pemrick, although his
qualifications for making such an assessment and the evidence
he relied upon are not detailed. Id. However, he stated that
the committee's interview with
Stracher made him uncomfortable. Id. Koizumi wrote:
I do not believe that the chairman's conduct and treatment of
Suzanne [Pemrick] has been fair: I cannot agree with
everything Al [Stracher] said during our telephone
conversation. Because of the power which a chairman possesses
over a junior faculty member, particularly one who has no
tenure, his negative attitude towards him/her can immensely
annoy, intimidate and alienate the person and even ruin
his/her future. A chairman's conduct, when explained as Al
did yesterday, can be made to appear very reasonable to
outsiders. Al's explanation we heard yesterday could almost
convince anyone that all faults lie with Suzanne — her bad
behavior and her aggressive attitude. When I reconsidered our
interview with him and the other three persons and also
reflected on my own experiences with other chairmen, it was
not so difficult for me to understand why Suzanne was driven
to where she is now.
Our task is not to investigate and find fault with any party
involved in this case. As a completely separate issue from
the task of our ad hoc review committee and our decision on
the investigation of sexual discrimination, I would like to
convey to our President, our, or at least my own opinion,
i.e. we should not permit ourselves to ruin Suzanne's future
so easily and so completely.
Our committee's decision and recommendation will end
Suzanne's career and nearly destroy the future of a bright
scientist who has been a member of our faculty for nine years
(regardless of how her salary was paid). Considering our
President's efforts to promote the faculty's research at this
Center and to try to rejuvenate and activate basic science
departments again, it cannot be denied that Suzanne's case
has been handled badly by all concerned.
To rescue Suzanne at this point and to give her one more
chance to start her research (she has been less productive in
recent years but was in a most difficult and trying
environment, regardless of who created it), it may be
possible to give her a part-time position in the Graduate
School and joint ...