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PEMRICK v. STRACHER

November 8, 1999

SUZANNE M. PEMRICK, PH.D., PLAINTIFF,
v.
ALFRED STRACHER, PH.D.; RICHARD SCHWARZ, M.D.; STATE UNIVERSITY OF NEW YORK (SUNY); AND SUNY, BROOKLYN, DEFENDANTS.



The opinion of the court was delivered by: Seybert, District Judge.

MEMORANDUM & ORDER

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.

BACKGROUND

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. Id.

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. Id.

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. Id.

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 her.*fn6 Id.

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 curtains?" Id.

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 ...

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