Solomon v. Fordham University

Background

Esther Solomon, proceeding without a lawyer, is a tenured associate professor at Fordham University’s Gabelli School of Business. She alleges that Fordham paid her less than similarly situated younger, male, and non-Jewish faculty members; favored those colleagues for promotions; subjected her to a hostile work environment; assigned her undesirable teaching work; and retaliated against her, including by terminating her health benefits. Her claims arise under federal and New York laws, including Title VII, Title IX, the Age Discrimination in Employment Act, the Family and Medical Leave Act, the Equal Pay Act, New York human-rights laws, and state common law.

This opinion did not decide whether Solomon’s underlying discrimination, retaliation, unequal-pay, defamation, contract, or other claims have merit. It addressed the parties’ discovery disputes. Discovery is the pretrial exchange of relevant, nonprivileged information and documents.

Procedural History Relevant to the Motions

Solomon served document requests and subpoenas seeking her personnel file and the personnel files of 14 alleged comparator professors. Fordham produced Solomon’s entire personnel file, personnel files for the 14 alleged comparators, faculty activity reports, and W-2 records. Fordham stated that it had produced more than 17,000 pages of documents. It redacted the names of peer reviewers and the names and biographical information of comparator professors, but gave Solomon a key showing each comparator’s gender, year of birth, and title.

Fordham’s earlier protective order allowed either party to designate discovery materials as confidential when, in good faith, the designation was needed to protect sensitive, nonpublic information. It identified personnel files and employment information as examples of potentially confidential material.

Solomon’s Motion to Compel

Solomon sought additional materials that she believed should have been included in her personnel file. Fordham said some records were limited by university statutes and represented that it had produced documents related to the issues identified in Solomon’s complaint and requests. The court held that Fordham could not withhold relevant documents merely because university statutes described personnel and peer-review information as confidential. Because Fordham had not clearly stated that the requested documents did not exist or were outside its possession or control, the court directed Fordham to provide a privilege log for documents withheld on a claimed legal privilege. If no legal privilege applied, Fordham was directed to produce additional responsive documents within its custody and control. The court denied Solomon’s motion on this issue because it lacked enough information to grant it at that time.

The court denied Solomon’s request to compel disclosure of peer reviewers’ names. Solomon said the names would help her prove her case, but she did not explain why the specific names were relevant. The court found that Fordham’s redactions were consistent with decisions allowing universities to redact peer reviewers’ names and identifying information.

The court also denied Solomon’s request to compel disclosure of the comparator professors’ names. The court concluded that Solomon had not explained why the names themselves were relevant, particularly because Fordham had provided information about the comparators’ gender, age, and titles. The court rejected Solomon’s argument that the Second Circuit’s earlier decision had required disclosure of the names, explaining that the appellate decision concerned dismissal of the complaint and did not decide the discovery issue.

Because it was unclear whether Fordham had redacted information beyond names, the court directed Fordham to provide a log identifying documents with other redactions and the basis for each redaction.

The court found Solomon’s request concerning several document requests not yet ready for decision because Fordham was still searching for responsive documents. It directed Fordham to respond according to the existing discovery schedule and denied the motion to compel on that basis. The court also denied Solomon’s request concerning Fordham’s alleged misrepresentation about her employment status because that issue was not properly raised through a discovery motion and would instead be addressed when the underlying claims were adjudicated.

The court denied Solomon’s request to remove Fordham’s confidentiality designations. The existing protective order contemplated that personnel, salary, and biographical information could be confidential, and Solomon had not shown that Fordham made the designations in bad faith.

Fordham’s Motion for a Protective Order

Fordham requested permission to redact the names of peer reviewers and alleged comparator professors from its discovery productions. The court found that Fordham had shown good cause under Federal Rule of Civil Procedure 26(c), which permits protection against annoyance, embarrassment, oppression, or undue burden or expense. The court relied on the confidentiality interests associated with academic peer review and employee privacy, as well as Solomon’s failure to show that the names were relevant or necessary. The court therefore granted Fordham’s motion for a protective order.

Fordham’s Motion to Compel

Fordham asked the court to require Solomon to conduct a reasonable search of her Fordham and personal email accounts and personal files and to produce additional responsive documents. Solomon said that she was producing documents from her Fordham and Gmail accounts and would continue searching and producing materials. The court held that the request was not yet ready for decision because Solomon’s production was ongoing. It denied Fordham’s motion to compel, while directing Solomon to complete her production under the discovery schedule and reminding her of her duty to conduct a reasonable search.

Disposition

In the conclusion, Judge Ramos stated that Solomon’s motion to compel was denied and Fordham’s motion to compel was denied. Fordham’s motion for a protective order was granted. The court directed the parties to submit a proposed protective order by July 16, 2024; directed Fordham to provide a privilege and redaction log by August 2, 2024; directed Fordham to produce documents responsive to Solomon’s first document request under the discovery schedule; and directed Solomon to search for and produce responsive documents. The Clerk was directed to terminate the two motions.