In Lax et al v. City University of New York et al, No. 504682/2021, 2024 N.Y. Slip Op. 50919(U), 2024 WL 3449207 (Sup Ct Kings Cty June 28, 2024), the court, inter alia, granted defendant CUNY’s motion to dismiss defendants’ (cross) claims of First Amendment retaliation.
The court summarized, and applied, the law as follows:
Wetzel and Perea argue that they have stated a valid claim for First Amendment retaliation against CUNY. ” ‘[A]s a general matter the First Amendment prohibits government officials from subjecting an individual to retaliatory actions’ for engaging in protected speech.” Nieves v Bartlett, 587 US 391, 398 (2019), quoting Hartman v Moore, 547 US 250, 256 (2006). “To state a First Amendment retaliation claim sufficient to withstand a motion to dismiss, [the party asserting the claim] must allege ‘(1) that the speech or conduct at issue was protected [by the First Amendment], (2) that the defendant took adverse action against the [party asserting the claim], and (3) that there was a causal connection between the protected speech and the adverse action’ “, i.e., the adverse actions taken by the defendant were motivated by the complaining party’s exercise of the protected speech. Dolan v Connolly, 794 F3d 290, 294 (2d Cir 2015), quoting Espinal v Goord, 558 F3d 119, 128 (2d Cir 2009); see also Dorsett v County of Nassau, 732 F3d 157, 160 (2d Cir 2013); Massaro v Department of Educ. of the City of NY, 121 AD3d 569, 569-570 (1st Dept 2014), lv denied 26 NY3d 903 (2015) (citing to Second Circuit authority in analyzing Federal and New York State Constitution retaliation claims based upon alleged protected speech).
Here, Wetzel and Perea have not alleged any retaliatory animus by CUNY towards their speech or that CUNY took any adverse action against them. Wetzel and Perea have not alleged that they were disciplined for engaging in anti-Israel speech or retaliated against by CUNY. They only claim that plaintiffs retaliated against them for their anti-Israel speech, progressive views, and criticism of Goldstein (who is an orthodox Jew) by filing EEOC complaints against them and otherwise accusing them of discriminatory and anti-Semitic conduct. They do not allege any retaliation by CUNY itself and do not allege any retaliatory motive by CUNY. Thus, Wetzel and Perea’s allegations are patently insufficient to charge CUNY with First Amendment retaliation.
The court further explained that while the claimants seek to hold CUNY responsible for plaintiffs’ alleged acts of retaliation against them, “[a]s a general rule, a government official is not liable for failing to prevent another from violating a person’s constitutional rights, unless the official is charged with an affirmative duty to act” and, therefore, “CUNY, as a governmental entity, cannot be held liable for failing to prevent plaintiffs from allegedly violating Wetzel and Perea’s right to free speech since CUNY was not charged with any affirmative duty to silence plaintiffs regarding their complaints of discrimination and anti-Semitism.”