Solomon v. Fordham University

Background

Esther Solomon, proceeding without a lawyer, was an associate professor at Fordham University’s Gabelli School of Business. She alleged that Fordham paid her less than male colleagues for equal work, assigned her unusually burdensome teaching schedules, discriminated against her because of her sex, age, and Jewish religion, retaliated against her, defamed her, and breached contractual and other duties. She asserted claims under Title VII, Title IX, the Age Discrimination in Employment Act, the Family and Medical Leave Act, the Equal Pay Act, several New York statutes, and New York common law.

Fordham moved to dismiss Solomon’s Second Amended Complaint under Federal Rule of Civil Procedure 12(b)(6), which permits dismissal when a complaint does not state a legally sufficient claim. The court had previously dismissed Solomon’s First Amended Complaint but allowed her to file another complaint.

Federal Discrimination and Unequal-Pay Claims

The court had previously concluded that changes to Solomon’s Spring 2018 teaching schedule were the only alleged employment action that could plausibly qualify as an adverse employment action for her Title VII and age-discrimination claims. In the Second Amended Complaint, Solomon added allegations about other professors, Fordham’s faculty statutes, comments by a former provost, and Fordham’s handling of her complaints.

The court held that these additional allegations still did not plausibly show discriminatory intent. Solomon did not provide enough facts showing that the other professors were similarly situated to her in their actual duties, responsibilities, administrative roles, or reasons for receiving different teaching loads. The court also found that comments made by former Provost Stephen Freedman in 2013 were too remote from the Spring 2018 scheduling decision, arose in a different context, and were not made by the person Solomon alleged was responsible for the later schedule.

The court also rejected Solomon’s argument that Fordham failed to investigate her discrimination complaints in a way that supported an inference of discrimination. The court found that her communications focused primarily on the 2013 area-chair dispute and did not clearly identify discrimination concerning her Spring 2018 teaching schedule. Her later response did not provide the clarification Fordham requested.

The court dismissed Solomon’s Equal Pay Act, Title VII, and ADEA unequal-pay theories because she did not adequately allege that the compared professors performed substantially similar work. General faculty standards and a common maximum teaching load were not enough to establish that their actual job duties were equal.

Hostile-Work-Environment Claim

The court dismissed Solomon’s hostile-work-environment claim. It held that the 2013 comments and other events occurring before the applicable limitations period were untimely. The court had also previously determined that those events were not sufficiently related to her later allegations to be treated as one continuing workplace environment. The court added that, even if timely, the comments were not sufficiently severe or part of a sufficiently continuous pattern to support the claim.

Retaliation and Benefits

Solomon alleged that Fordham retaliated against her by ending its payment of her health-insurance premiums during her unpaid leave for Spring 2020, requiring her to continue coverage through the federal COBRA program at her own expense. The court recognized that a substantial reduction in benefits could qualify as an adverse employment action.

The court nevertheless held that Solomon had not plausibly alleged that the loss of paid benefits was retaliation for her discrimination complaints, Equal Employment Opportunity Commission filing, or litigation activity. The court concluded that the allegations instead supported Fordham’s explanation that the benefits ended because Solomon chose another semester of unpaid leave after declining to teach the assigned undergraduate course. Fordham had previously warned her that paid benefits might not continue during a later unpaid leave, and the court found that Fordham’s actions were consistent with its stated policy. To the extent Solomon asserted retaliation under the Family and Medical Leave Act, the court dismissed that theory for the same reasons.

New York Claims and Disposition

After dismissing the federal claims, the court declined to retain supplemental jurisdiction over Solomon’s New York statutory and common-law claims. Those claims were therefore dismissed as well.

Judge Edgardo Ramos granted Fordham’s motion to dismiss the Second Amended Complaint. The claims were dismissed without prejudice because the court found that the pleading defects were not necessarily incurable. Solomon was not automatically allowed to amend again: she had to obtain Fordham’s consent or seek the court’s permission under Federal Rule of Civil Procedure 15(a)(2). Any request had to include a proposed Third Amended Complaint and a concise explanation of how it would address the defects identified in the opinion. The court also ordered that discovery remain stayed if she sought permission to amend, until Fordham answered or the court denied a further dismissal motion.