Lax v. The City Univ. of N.Y.

2023 NY Slip Op 50970(U)

Jeffrey Lax and MICHAEL GOLDSTEIN, Petitioners, v. The City University of New York, KINGSBOROUGH COMMUNITY COLLEGE, STONETURN GROUP LLP, DAVID HOLLEY, LILI SHI, CLAUDIA SCHRADER, DEREK DAVIS, DORIANE GLORIA, MICHAEL VALENTE, FELIX V. MATOS RODRIGUEZ, and BETH DOUGLAS, Respondents.

Index No. 508212/23

Supreme Court, Kings County

August 16, 2023

Unpublished Opinion

Attorneys for the petitioners Jonah S. Zweig, Esq. THE ZWEIG LAW FIRM, P.C.

Attorneys for the respondent Lili Shi, J. Remy Green COHEN & GREEN, PLLC

Attorneys for the respondent StoneTurn Group LLP Andrew N Stahl, KRIEGER KIM & LEWIN LLP

Attorneys for CUNY Respondents Elisheva L. Rosen, Esq. CORPORATION COUNSEL OF THE CITY OF NEW YORK

DELORES J. THOMAS, J.S.C.

The following e-filed papers read herein: NYSCEF Doc Nos.:

Notice of Motion/Order to Show Cause/

Petition/Cross Motion and

Affidavits (Affirmations) Annexed 24, 28-29, 39

Opposing Affidavits (Affirmations) 43

Shi's Memorandum of Law: 25

Shi's Attorney's May 3, 2023 Letter: 32

Shi's Attorney's May 17, 2023 Letter: 38

Upon the foregoing papers, in this proceeding brought by petitioners Jeffrey Lax (Lax) and Michael Goldstein (Goldstein) (collectively, petitioners) against the City University of New York (CUNY), Kingsborough Community College (Kingsborough), StoneTurn Group LLP (StoneTurn), David Holley (Holley), Lili Shi (Shi), Claudia Schrader (Schrader), Derek Davis (Davis), Doriane Gloria (Gloria), Michael Valente (Valente), Felix V. Matos Rodriguez (Rodriguez), and Beth Douglas (Douglas); Shi moves, by order to show cause, under motion sequence number three, for an order: (1) dismissing this case under CPLR 3211 (g), CPLR 3211 (a) (7), or CPLR 3211 (a) (1); (2) granting her mandatory attorneys' fees and costs under Civil Rights Law § 70-a; and (3) granting her the ordinary costs of this action.

Facts and Procedural Background

CUNY is the public university system of the City of New York, and Kingsborough is one of CUNY's educational institutions. Petitioners are both observant Jewish professors at Kingsborough. Schrader is the President of Kingsborough Rodriguez is the Chancellor of Kingsborough, Gloria is the Vice Chancellor of Kingsborough, Valente was, at the relevant time, the Chief Diversity Officer of Kingsborough, and Shi is a professor at Kingsborough. Davis is the General Counsel of CUNY and Douglas is the Executive Legal Counsel and Labor Designee of Kingsborough.

Following allegedly persistent discrimination against petitioners on the Kingsborough campus because they are Jewish, they filed U.S. Equal Employment Opportunity Commission (EEOC) charges against CUNY and Kingsborough, which resulted in a February 11, 2021 determination by the EEOC that they were, in fact, discriminated and retaliated against because of their religion and that CUNY failed to take immediate corrective action, thereby creating a hostile working environment (NYSCEF Doc No. 4). Plaintiffs allege that despite this finding of discrimination by the EEOC and in connection with complaints of still persistent discrimination, Schrader, Kingsborough, and CUNY failed to legitimately address the ongoing discriminatory behavior levelled against Jewish faculty members and students.

CUNY, Kingsborough, and Schrader subsequently set up a committee to search for and hire an Assistant Dean for Diversity, Equity and Inclusion (the DEI committee). Although the ostensible purpose of the DEI committee was to eliminate the discrimination against Jews allegedly occurring at Kingsborough, as of August 2022, not one of its members was an observant or Zionist Jew. Shi was appointed as a member of the DEI committee despite the fact that she had a history of being an anti-Israel advocate and a vocal supporter of the anti-Zionist movement BDS, which stands for Boycott, Divestment and Sanctions against Israel.

Following unsuccessful attempts to communicate with Schrader, who is Lax's direct supervisor, Lax, on August 16, 2022, emailed CUNY's Diversity Officer Investigator, stating that he must "file a discrimination, retaliation, and hostile work environment complaint" against Schrader for ongoing discrimination, including her appointment of Shi, a vocal anti-Israel and anti-Zionist advocate, to the DEI committee whose given purpose was to extinguish antisemitic discrimination, while failing to include any observant or Zionist Jews on this committee (NYSCEF Doc No. 6). Valente was copied on this email.

On September 9, 2022, Lax was informed that Chief Diversity Officer Saly Abd Alla (Alla) had been appointed to deal with the matter of his Equal Opportunity and Non-Discrimination Policy complaint against Schrader. Petitioners allege that rather than ameliorating the situation, the involvement of Alla only exacerbated their concerns since Alla had a former position as Civil Rights Director of Council on American-Islamic Relations (CAIR) MN, an anti-Zionist movement and vocal supporter of BDS. Lax wrote to Alla to question her impartiality in investigating his complaint, and after there was no response from her, he emailed Gloria, requesting answers to the concerns he had raised in his email to Alla. After repeated emails by Lax, Gloria emailed Lax that alternative routes were being sought to investigate his complaint.

Since Lax had complained about CUNY's ability to investigate his complaint impartially, CUNY retained Control Risk Group, LLC, a third-party firm, to investigate his discrimination and retaliation complaint. Lax claims to have withdrawn his complaint against Schrader before this investigation was completed.

On November 21, 2022, petitioners were copied on an email from Davis, the General Counsel for CUNY, which he had sent to Shi. From this email, petitioners learned that as a result of Lax's August 16, 2022 complaint, Shi had filed an internal complaint of her own against Lax, under CUNY's Equal Opportunity and Non-Discrimination Policy, and that Lax was now the subject of an investigation conducted by StoneTurn, a New York investigation firm retained by CUNY to conduct an investigation in connection with the concerns raised by Shi (NYSCEF Doc No. 8). Holley is a partner in StoneTurn, and was in charge of this investigation.

Lax replied to Davis that conducting an investigation against him because of his complaint against Schrader amounted to retaliation, and he inquired as to precisely what the charges were against him and what policies he was alleged to have violated. However, Lax was not informed of the substance of Shi's complaint or the charges against him. Lax claims that this effectively took away his ability to defend himself against these charges made by Shi. In an email dated December 9, 2022 to Lax, Davis stated that Lax was not cooperating with the investigation and was told that the investigation would continue "with or without his participation" (NYSCEF Doc No. 9).

Lax responded by denying the accusations, and he again inquired as to the nature of the charges made against him by Shi, stated that he never refused to participate in an investigation, and set forth his willingness to cooperate in the investigation (NYSCEF Doc No. 10). Thereafter, Lax received correspondence from Holley of StoneTurn asking to schedule a time to meet for the purposes of the investigation into Shi's complaint.

Lax again inquired as to the charges and the substance of Shi's complaint. While Holley initially provided no information, after repeated requests by Lax, Holley, in an email dated January 24, 2023, wrote that Shi, on September 19, 2022 (approximately one month after Lax filed his August 16, 2022 complaint), had filed a complaint against Lax with Kingsborough's Chief Diversity Officer Valente, in which she alleged that she experienced "targeted cyber bullying" by him and asserted "a case of race and gender discrimination," stemming from acts that commenced on or around August 16, 2022, including Twitter messages and online media articles targeting her (NYSCEF Doc No. 13). Holley also advised Lax that Shi expressed concerns regarding her "vulnerability as an immigrant" (id.). Holley informed Lax that Shi's complaint alleged behavior by him that violated CUNY's Equal Opportunity and Non-Discrimination Policy (id.). Holley also notified Lax that "[i]n light of the allegations and contemporaneous concerns Professor Shi raised for her and her family's safety, circumstances warranted withholding the full written complaint" from him (id.).

Petitioners claim that since no further details or facts were provided, this made it impossible for Lax to defend himself against Shi's accusations. Petitioners assert that CUNY and the other respondents refused to provide Lax with either a copy of or a summary of Shi's complaint against him.

On March 16, 2023, petitioners filed their petition against respondents (NYSCEF Doc No. 1). Petitioners, in their petition, alleged that the continuance of the investigation threatened their jobs and careers and has caused them emotional and mental distress, particularly in view of the prior discrimination against them. Petitioners, in their request for relief in the petition, and in an order to show cause filed simultaneously with their petition, under motion sequence number one (NYSCEF Doc No. 2), sought, pursuant to CPLR 6301, preliminary injunctive relief ordering an immediate stop to the investigation being conducted into them by respondents and also compelling respondents to immediately make available to them a copy of the complaint issued against them by Shi, as well as a report of any and all charges contained within Shi's complaint and the underlying facts upon which such charges were based.

Petitioners' order to show cause was signed by Justice Richard Velasquez ...