believe that if plaintiff were not qualified for the job, the
defendants nevertheless would have gone to the trouble to
consider her application and grant her an interview.
Additionally, Pemrick claims that the argument that she was not
qualified in molecular biology is a ruse because, she alleges,
Stracher continually changed the criteria for the position.
Pemrick claims that every time she applied for the position,
the searches were canceled and the position was re-engineered
to one for which an argument could be made that she was not
qualified. Moreover, plaintiff claims that SUNY-DMC did not
follow institution rules for posting of available positions,
resulting in her finding out "through the grapevine" that
searches had been re-opened.*fn14
Therefore, the existence of several genuine issues of material
fact preclude granting summary judgment to defendants on this
basis. There is evidence in the record which, if believed by a
jury, would establish that Pemrick was qualified for the
positions for which she applied, or that the defendants
purposefully and unlawfully engineered a scheme to prevent
Pemrick from obtaining a tenure-track position at SUNY-DMC.
III. DMC's Alleged Reliance on Separation Agreement
Defendants also argue that even if plaintiff makes out a prima
facie case for employment discrimination, they had legitimate
non-discriminatory reasons for not hiring her. Toward the end
of 1987, when it was becoming clear that the relationship
between Pemrick and the defendants was deteriorating, SUNNY-DMC
and Pemrick entered into an agreement providing for, among
other things, Pemrick's resignation. The agreement required
Pemrick to execute two post-dated letters of resignation, dated
August 31, 1988 and August 31, 1989. Because Pemrick had a
grant renewal application pending at the time the agreement was
executed, the parties agreed that if the grant were renewed,
SUNY-DMC would destroy the earlier of the two letters, but hold
Pemrick to the later. However, if the grant renewal were
denied, Pemrick would resign pursuant to the letter dated
August 31, 1988.
In addition to this agreement, which Pemrick claims SUNY-DMC
had no intention of obeying and breached almost immediately,
the parties executed general releases. The releases were
standard releases, providing that each party would hold the
other harmless for any and all claims. Defendants claim that
the explicit purpose of the agreement was to end Pemrick's
association with SUNY-DMC and to aid her in obtaining a
position at another institution. Defendants argue that they
were entitled to rely on this agreement when considering
whether or not Pemrick would be considered for the position
left vacant by Dr. Kirschenbaum's passing.
This argument has no merit. While SUNY-DMC may have relied on
the releases to protect themselves from any prior claims
Pemrick may have had (an argument not presented here), there is
no basis to argue that the agreement somehow precluded Pemrick
from re-applying for the position formerly held by Dr.
Kirschenbaum, or any other position at SUNY-DMC. Nor would the
agreement, even if valid, prospectively relieve defendants from
complying with the mandates of Title
VII. In fact, in his affidavit in support of the defendants'
1991 motion to transfer venue. Stracher affirmed that Pemrick
"was not seriously considered" for the position during the
third search. Affidavit of Alfred Stracher, dated December 17,
1991, ¶ 14. This statement reasonably could be viewed by the
jury as an admission that Stracher knew that Pemrick had, in
fact, applied for the position, and — given his current
argument that plaintiff never applied for the position — that
his proffered reason for not hiring her was pretextual. See
St. Mary's Honor Center v. Hicks, 509 U.S. 502, 511, 113 S.Ct.
2742, 125 L.Ed.2d 407 (1993) ("[t]he factfinder's disbelief of
the reasons put forward by the defendant (particularly if
disbelief is accompanied by a suspicion of mendacity) may,
together with the elements of the prima facie case, suffice to
show intentional discrimination.").
IV. Plaintiff's Evidence of Intentional Discrimination
Defendants also argue that even if Pemrick sets forth a prima
facie case of discrimination, she has no evidence that any
defendant intentionally discriminated against her. It is true,
as defendants submit, that the plaintiff retains the "ultimate
burden of persuading the trier of fact that [s]he has been the
victim of intentional discrimination." Hicks, 509 U.S. at
508, 113 S.Ct. 2742 (internal brackets omitted) (quoting Texas
Dep't of Community Affairs v. Burdine, 450 U.S. 248, 256, 101
S.Ct. 1089, 67 L.Ed.2d 207 (1981)). However, "[d]irect evidence
is not necessary, and a plaintiff charging discrimination
against an employer is usually constrained to rely on the
cumulative weight of circumstantial evidence." Luciano v.
Olsten Corp., 110 F.3d 210, 215 (2d Cir. 1997). Additionally,
the issue of intent usually is a jury question. See id. at
215-16; see also Fisher v. Vassar College, 114 F.3d 1332,
1339 (2d Cir. 1997); Cornwell v. Robinson, 23 F.3d 694, 706
(2d Cir. 1994). Finally, it is axiomatic that a court may not
decide issues of fact on a motion for summary judgment, but
rather must decide whether genuine issues of material fact
exist. Quaratino v. Tiffany & Co., 71 F.3d 58, 64-65 (2d Cir.
1995) ("[i]n deciding a motion for summary judgment, when
confronted with facts from which several differing conclusions
may be drawn, the inferences drawn from such underlying facts
are viewed in the light most favorable to the non-movant.").
Drawing every reasonable inference in favor of Pemrick, the
non-movant, the Court holds that on this record, there is
sufficient evidence that, if believed by a trier of fact, would
support a conclusion that plaintiff was intentionally
discriminated against on the basis of her gender. Thus, summary
judgment cannot be granted to the defendants on this basis.
On the other hand, the Court finds little evidence in the
record that Pemrick has suffered any discrimination on the
basis of of her age. At oral argument, in response to a
question by the Court regarding evidence of age discrimination,
plaintiff stated that
my age discrimination evidence is that the position that I was
applying for was an assistant professor of biochemistry and I
went through for about a 20-year period all people who were
appointed to that rank is, and I asked their age at appointment
and they were all — I believe it's in my affidavit, within — I
did an average for decades, like maybe the 1970s and 1980s and
it was all within a range that was under the age of 35 when
they had appointment to the tenure track and most — a vast
majority of them obtained tenure prior to the age of 40. Here I
was, I think with my first application, 45, seeking a tenure
track appointment at that rank, assistant professor.
Secondly, in a letter of Dr. Stracher dated July of 1984, he
says in this letter to Dr. Schwartz [sic] the dean regarding
his expectations from me to be appointed to a tenure track
position, . . . that he had different expectations from
who was senior and I think the letter implied I was senior
. . . . He said he didn't want to make a senior appointment as
one of the reasons for my non-selection, the implication that
I had become senior.
Also, when I wanted to take a sabbatical, I was told by the
dean of the graduate school that he thought I had possibly
become too old for retraining, and I took that as age
discrimination, because I was seeking an application for a
research fellowship for retraining.
Transcript of Oral Argument, July 9, 1999, at 29-30. Pemrick
also stated that over the years she was subjected to demeaning
comments about her age. For instance, Pemrick argued that at
least once a member of the biochemistry department walked up to
her in front of other people, asked her how old she was, said
that she had a double chin, and asked her if she was getting
hot flashes. Id. at 30.
Although it is a very close question, the Court denies the
defendants' motion for summary judgment on the ADEA claim.
First, the Court recognizes that many of these cases turn on
the very sort of comments that plaintiff claims were made to
her in relation to being too old for retraining; Stracher's not
wanting to make a "senior" appointment; and offensive comments
about double chins and hot flashes. Second, these comments as
alleged tend to impact directly on the plaintiff's working
environment and chances for promotion and/or hiring. Third, the
Court finds that this evidence, if believed by a factfinder,
could constitute unlawful discrimination on the basis of
plaintiff's age. Finally, it is axiomatic that on a motion for
summary judgment, the Court is required to resolve all
ambiguities and draw all reasonable inferences in favor of the
non-movant. Castle Rock, 150 F.3d at 137.
Thus, having found that there is more than a "metaphysical
doubt as to the material facts" of this claim of age
discrimination, Matsushita, 475 U.S. at 586, 106 S.Ct. 1348,
the Court denies defendants' motion for summary judgment on
V. Dismissal of Stracher and Schwarz in Official Capacities
Defendants move for summary judgment as to Stracher and
Schwarz, arguing that individuals may not be held liable for
Title VII or ADEA violations.*fn15 Tomka v. Seiler Corp.,
66 F.3d 1295, 1313 (2d Cir. 1995). Defendants are correct. See
Hussein v. Hotel Employees and Restaurant Union Local 6. No.
98 Civ. 9017, 1999 WL 767429. at *4 (S.D.N.Y. Sept.28, 1999).
The fact that Stracher and Schwarz are sued only in their
official capacities is irrelevant since Title VII and the ADEA
do not authorize such "official capacity" suits. See id.
(citing cases); see also Coddington v. Adelphi Univ.,
45 F. Supp.2d 211, 217 (E.D.N.Y. 1999) (noting that official
capacity claims under Title VII are an inappropriate outgrowth
from civil rights lawsuits against government officials).
The result is the same in this case, even where the plaintiff
seeks not only money damages but also injunctive relief. See
Tomka, 66 F.3d at 1314 (noting the congressional concern with
the high costs of litigating discrimination claims); see also
Coddington, 45 F. Supp.2d at 217 (nothing
that individual employees of the employer-entity need not
remain as defendants simply because they may be required to
implement an injunctive-type order entered against the
employer). Thus, the Court holds that Tomka's individual
liability bar applies to individual defendants in their
official capacities, as well as to situations where the
plaintiff seeks prospective injunctive relief against such
individuals, under both Title VII and the ADEA. See Tomka, 66
F.3d at 1314 ("equitable remedies . . . are most appropriately
provided by employers, defined in the traditional sense of the
As a result, summary judgment is granted to Stracher and
Schwartz, and all claims against these two individual
defendants are dismissed with prejudice.
VI. Court's Jurisdiction to Consider Claims not Raised in
As a general proposition, a plaintiff's claims that are not set
forth explicitly in an EEOC charge, but which are reasonably
related to claims made in the charge, may be set forth in a
subsequent action in federal court. Butts v. City of New York
Dep't of Hous. Preservation and Dev., 990 F.2d 1397, 1402 (2d
Cir. 1993). "Reasonably related" means that despite the
claimant's having failed to specify the precise charge, the
EEOC likely would have investigated the conduct complained of
The Court has no doubt that Pemrick's claims that (1) she
impermissibly was terminated from employment in 1990 and (2)
that defendants used impermissible criteria in failing to
promote her, are reasonably related to the claims made in the
EEOC charge.*fn16 Given the nature of the alleged behavior
of the defendants, it is highly likely that the EEOC would have
investigated the conduct involved in these two claims, despite
plaintiff's failure to specify them in her EEOC charge.
Therefore, the defendants' motion for summary judgment on these
two claims is denied.
For the reasons discussed above, the Defendants' motion for
summary judgment is GRANTED in part and DENIED in part. All
claim against individual defendants Alfred Stracher and Richard
Schwarz are DISMISSED with prejudice.
The final pre-trial conference is set for Friday, December 10,
1999 at 10:30 a.m. The jury will be selected on February 7,
2000, and this case will move to trial immediately thereafter.