Lax v. City University of New York
| Docket Number | Index No. 508042/2021 |
| Decision Date | 25 August 2022 |
| Parties | Jeffrey LAX, Plaintiff, v. The CITY UNIVERSITY OF NEW YORK and Stuart Suss, Defendants. |
| Court | New York Supreme Court |
Sylvia O. Hinds-Radix, Corporation Counsel, New York City (Kimberly E. Wilkens of counsel), for defendants.
Corey Stark PLLC, New York City (Corey Stark of counsel), for plaintiff.
In this action by plaintiff Jeffrey Lax (plaintiff) against defendants the City University of New York (CUNY) and Stuart Suss (Suss) (collectively, defendants) alleging claims of employment discrimination, hostile work environment, and retaliation, defendants move, under motion sequence number one, for an order, pursuant to CPLR 3211 (a) (1), (5), and (7), dismissing plaintiff's complaint based on the grounds that plaintiff's claims are barred by his inadequate notice of claim, barred by the applicable statute of limitations period, and, to the extent otherwise potentially viable, fail to state a claim upon which relief can be granted.
Plaintiff is a professor and the chairperson of the business department of Kingsborough Community College (Kingsborough), a public community college that is part of the CUNY system. Plaintiff commenced his employment with Kingsborough in 2004, was promoted to associate professor in 2010, became chairperson of the business department in 2011, and was promoted to professor in 2013. Plaintiff is an Orthodox Jew, who characterizes himself as an "obvious Jew" or "outward Jew."
Suss is the former provost, acting president, and vice-president of academic affairs of Kingsborough. Plaintiff claims that during his employment at Kingsborough, Kingsborough and Suss harassed him and subjected him to disparate treatment and a hostile work environment due to his religion, and subjected him to retaliation after he made complaints of discrimination.
Plaintiff filed a notice of claim on August 19, 2015 (NYSCEF Doc No. 9). In this notice of claim, plaintiff describes the nature of the claim as: "breach of fiduciary duties, libel per se, slander per se, intentional infliction of emotional distress, libel, slander." Plaintiff's notice of claim states the place where the claim arose as Kingsborough and the time when it arose as "June 2, 2015 letter to claimant culminated, months and years of tortious activity." It lists the items and damages of the injuries claimed by him as: "failure to promote, damage to reputation, slandered, libel and ... intentional infliction of emotional distress." It lists $15 million as the amount of damages claimed. Plaintiff's notice of claim does not list any claims of discrimination or retaliation under the New York State Human Rights Law ( Executive Law § 290, et seq. ) (NYSHRL) or the New York City Human Rights Law () (NYCHRL).
Approximately six months after filing the notice of claim, plaintiff, on February 16, 2016, filed an action in the United States District Court for the Eastern District of New York, alleging federal claims under Title VII of the Civil Rights Act of 1964, 42 USC § 2000e, et seq., and under 42 USC § 1983, as well as NYSHRL claims and NYCHRL claims against defendants. Defendants moved, pursuant to rule 56 of the Federal Rules of Civil Procedure, for summary judgment dismissing all of plaintiff's claims.
District Court Judge LaShann DeArcy Hall, in a judgment signed on October 21, 2020, granted defendants’ motion for summary judgment to the extent that she dismissed plaintiff's claims asserted under federal law, with prejudice. Having dismissed all of the federal claims in that action, Judge Hall declined to exercise supplemental jurisdiction pursuant to 28 USC § 1367 (c) (3), over plaintiff's claims under the NYSHRL and the NYCHRL, and dismissed those claims, without prejudice (NYSCEF Doc No. 7; Lax v. City Univ. of New York , 2020 WL 6161253, 2020 US Dist LEXIS 195687 [E.D. N.Y. Oct. 21, 2020, 16-CV-799 (LDH) (VMS)] ). On November 19, 2020, plaintiff appealed the District Court's judgment. By a decision and order dated January 11, 2022, the United States Court of Appeals, Second Circuit, affirmed the District Court's judgment (NYSCEF Doc No. 23; Lax v. City Univ. of New York , 2022 WL 103315, 2022 U.S. App. LEXIS 792 [2d Cir. Jan. 11, 2022, 20-3906-CV] ).
On April 6, 2021, within six months of dismissal of the federal action, pursuant to the tolling provision of CPLR 205 (a), plaintiff filed the instant action, in which he alleged his NYSHRL claims and NYCHRL claims (NYSCEF Doc No. 1). Plaintiff's complaint (NYSCEF Doc No. 8) alleges that defendants engaged in a systematic policy or practice of discrimination that commenced in approximately 2011 and continues today. Plaintiff describes how defendants ridiculed, intimidated, and insulted Jewish employees by systematically eliminating Jews from the faculty, excluded and minimized the roles of the Jewish faculty members who survived elimination, subjected Jewish faculty members to frequent verbal harassment and disparate treatment, and encouraged anti-Semitism on Kingsborough's campus.
Specifically, plaintiff sets forth that discriminatory hiring practices reduced the number of Jewish faculty members at Kingsborough and contributed to a pervasively hostile work environment. He alleges that commencing in approximately 2011, Suss excluded duly elected Departmental Personnel & Budget Committee members who were Jewish from screening candidates on the basis that there were "too many Jews." He further alleges that on multiple occasions, Suss summarily refused to interview the candidates chosen by the Departmental Personnel & Budget Committee if such candidates had a Jewish name.
Plaintiff alleges that in order to minimize the Jewish faculty, Suss refused to allow him and the other Jewish chairpersons to serve on any college committees that met in 2013-2014 and 2014-2015, other than those to which they were already entitled on account of their positions as chairpersons. Plaintiff further alleges that in 2014, Suss insisted upon scheduling the interviews of Jewish candidates for positions at Kingsborough on Jewish holidays. Plaintiff asserts that "[b]y mid-2015 the religious discrimination became so palpable that some department chairs encouraged Jewish candidates to remove all religious head coverings, and any other personal items symbolic of their religious beliefs, before meeting with Suss."
Plaintiff further alleges that various comments and hostile behavior contributed to a hostile work environment and atmosphere at Kingsborough. He describes how Suss mocked the religious head coverings of Jewish faculty members; voiced support for suicide bombers and their attacks against Jews; referred to Jews as "horrible"; called Jews "the Devil," "crazy," and "evil"; agreed that some departments at Kingsborough should "never hire Jews"; denigrated people for keeping kosher; assumed that all Jews know one another's business; referred to Jews as the "enemy"; and constantly reminded people that he knew that they were Jewish. Plaintiff states that on June 3, 2014, he complained to interim provost, Dr. David Gomez, about Suss’ comments and discriminatory conduct, and while Dr. Gomez held a meeting between him and Suss in an attempt to resolve this issue, Dr. Gomez failed to investigate or address Suss’ conduct at the meeting and allowed Suss’ "crusade against Jewish faculty members to continue unabated."
Plaintiff also alleges that he suffered disparate treatment because despite his outstanding work performance, he was treated less favorably and with hostility by defendants, as compared with similarly situated non-Jewish employees. Plaintiff states that in mid-2013, defendants used extraordinary measures to prevent him from obtaining a promotion to professor, and that in March 2014, when he "was ripe for a salary increase," and requested a raise from the provost, Suss overruled the provost and denied his application. Plaintiff also states that defendants refused to appoint him to any active college committees, while awarding committee appointments to less qualified non-Jewish faculty members. Plaintiff claims that religious discrimination motivated the hostile working environment and disparate treatment.
In addition, plaintiff alleges that Kingsborough fostered anti-Semitism by, among other things, failing to investigate complaints about anti-Semitic comments and declining to implement remedial action. He asserts that since 2013, numerous swastikas were drawn or scratched at various locations throughout Kingsborough's campus.
Plaintiff describes how he made four formal complaints of discrimination. Plaintiff states that on March 17, 2014, he made a complaint of religious discrimination to Kingsborough's general counsel, but Kingsborough failed to investigate or address it and the discrimination and harassment that he was subjected to only intensified, including Suss’ refusal, on March 25, 2014, to meet with him to discuss a compensation increase. Plaintiff further states that on June 3, 2014, he made a complaint of religious discrimination and retaliation to interim provost, Dr. Gomez, that on May 11, 2015, he made a complaint of discrimination to the Director of Human Resources Investigations at CUNY, Pinar Ozgu, and that on October 23, 2015, he issued a complaint of religious discrimination and retaliation to Kingsborough's Chief Diversity Officer. He asserts that after each of these complaints, the discrimination and harassment, to which he was subjected, only intensified. Plaintiff alleges that he also filed a charge of discrimination against defendants with the Equal Employment Opportunity Commission (the EEOC).
Plaintiff alleges that after he filed the federal action on February 16, 2016 and the EEOC charge, defendants engaged in further disparate acts and defendants’ retaliation intensified. Specifically, plaintiff claims that CUNY...
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