Solomon v. Fordham University

Background

Esther Solomon, proceeding without a lawyer, is an associate professor at Fordham University’s Gabelli School of Business. She moved for permission to file a proposed Third Amended Complaint. The proposed pleading included claims under Title VII, Title IX, the Age Discrimination in Employment Act, the Family and Medical Leave Act, the Equal Pay Act, New York human-rights and pay-equality laws, and New York common law.

The court had previously dismissed Solomon’s Second Amended Complaint and instructed her that any request to file another complaint had to include the proposed pleading and a concise explanation of how it addressed the earlier defects. Solomon submitted a proposed complaint containing her earlier allegations, 208 new paragraphs, and 15 new exhibits. Among other things, she alleged that Fordham stopped paying her healthcare premiums during unpaid leaves in retaliation for her protected activities, that the unpaid leaves violated her tenure rights and applicable healthcare-continuation rules, that her fall 2020 teaching schedule was retaliatory, and that she was paid less than similarly situated professors.

Legal standard

Under Federal Rule of Civil Procedure 15, a court ordinarily should allow amendment when justice requires, but it may deny leave because of undue delay, bad faith, undue prejudice, or futility. Amendment is futile when the proposed complaint would not state a claim even if its allegations were accepted as true.

Claims based on unpaid leaves

The court held that it could not conclude that amendment would be futile as to Solomon’s proposed Title VII and Age Discrimination in Employment Act retaliation claims based on her unpaid leaves of absence. Solomon added allegations concerning Fordham’s refusal to pay healthcare premiums, her tenure protections under Fordham’s University Statutes, and federal rules governing continued healthcare coverage. She also alleged that Fordham’s treatment differed from its customary practice and was retaliation for her complaints about her teaching schedule and other protected activities.

The court agreed with Fordham that the cited healthcare-continuation regulation covers an absence from work for reasons including unpaid leave. But the court said Solomon also raised an unresolved issue: whether Fordham had authority to treat her leave as an event allowing removal from its healthcare plan if doing so violated the disciplinary and due-process protections applicable to tenured faculty. Viewed favorably to Solomon, those allegations could affect whether Fordham’s position about unpaid benefits was retaliatory.

The court therefore granted Solomon leave to file the Third Amended Complaint for the limited purpose of asserting Title VII and Age Discrimination in Employment Act retaliation claims based on her unpaid leaves, along with analogous state-law retaliation claims over which the court had supplemental jurisdiction. The court also granted Fordham’s request to file a motion to dismiss limited to those claims. The court did not decide whether the claims ultimately would succeed.

Remaining claims

The court found that the proposed remaining claims would not withstand a motion to dismiss. Solomon’s allegations concerning spring 2018 teaching assignments and unequal pay relied in part on professors whom she identified as comparators. The court concluded that she had not alleged enough facts showing that those professors were similarly situated in job duties, responsibilities, rank, or work experience.

The court also found insufficient Solomon’s allegations concerning a chart of male professors who were paid more, because the chart did not identify their titles, duties, functions, or ranks. Her allegations concerning a fall 2020 teaching schedule did not plausibly show retaliation because the schedule was not more burdensome than the schedule previously assigned to her. The court further found that her allegations did not add facts supporting a hostile-work-environment claim or a constructive-discharge claim. Reasserted allegations involving earlier promotion proceedings, past statements, alleged code-of-conduct accusations, and an incident involving another professor likewise did not cure the deficiencies identified in the court’s earlier decisions.

Conclusion and effect

The court granted the motion to file the proposed Third Amended Complaint only for the specified unpaid-leave retaliation claims and related state-law claims. It found amendment futile as to the remaining proposed claims. Solomon was required to file the amended complaint by June 25, 2021. Fordham’s possible motion to dismiss was due July 23, 2021, and the court stated that no later requests to replead would be granted. The Clerk was directed to terminate the motion at docket number 88.