Solomon v. Fordham University
Filing
85
OPINION & ORDER re: 74 MOTION to Dismiss the second amended complaint of pro se plaintiff Esther Solomon filed by Fordham University, 70 MOTION to Compel filed by Esther Solomon. For the foregoing reasons, Fordham 39;s motion to dismiss the Second Amended Complaint is GRANTED. The claims therein are dismissed without prejudice. If Solomon wishes to file a Third Amended Complaint, she must, no later than February 1, 2021, move for leave to amend or obta in written consent from all opposing parties, in accordance with Federal Rule of Civil Procedure 15(a)(2). In seeking leave to amend, Solomon must provide a copy of her proposed Third Amended Complaint and a concise explanation of how she has ad dressed the defects identified in this Opinion and Order. If Solomon chooses to move to file a Third Amended Complaint, discovery will continue to be stayed until Fordham answers this complaint or the Court denies a motion to dismiss it. The Clerk is respectfully directed to terminate docket numbers 70 and 74. ( Motions due by 2/1/2021.) (Signed by Judge Edgardo Ramos on 12/29/2020) (mro)
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
ESTHER SOLOMON,
Plaintiff,
OPINION & ORDER
– against –
18 Civ. 4615 (ER)
FORDHAM UNIVERSITY,
Defendant.
Ramos, D.J.:
Esther Solomon, proceeding pro se, is an associate professor at Fordham University’s
Gabelli School of Business. She alleges that Fordham has paid her less than her male colleagues
for the same work, assigned her an overwhelming and retaliatory course load, discriminated
against her because of her gender, age, and religion, defamed her, and breached a contract and
other duties owed to her. She also alleges that Fordham recently retaliated against her by
refusing to pay for her health insurance. She brings these claims under both federal and New
York state law.1
The Court previously dismissed Solomon’s First Amended Complaint in its entirety. See
1
Solomon brings claims under the following federal statutes:
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Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.
Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 et seq.
The Age Discrimination in Employment Act of 1967 (“ADEA”), 29 U.S.C. §§ 621 to 634
The Family and Medical Leave Act of 1993 (“FMLA”), 29 U.S.C. §§ 2601 to 2654
The Equal Pay Act of 1963 (“EPA”), 29 U.S.C. § 206(d)
She also brings claims under the following New York statutes:
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The New York State Human Rights Law, N.Y. Exec. Law §§ 290 to 297
The New York City Human Rights Law, N.Y. City Admin. Code §§ 8-101 to 8-131
The Achieve Pay Equality Act of 2015, N.Y. Lab. Law § 194
Finally, she alleges defamation, breach of contract, breach of fiduciary duty, and tortious interference with current
and prospective business relations under New York common law.
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Solomon v. Fordham Univ., No. 18 Civ. 4615 (ER), 2020 WL 1272617 (S.D.N.Y. Mar. 17, 2020).
Before the Court is Fordham’s motion to dismiss Solomon’s Second Amended Complaint
(“SAC”), Doc. 71. For the reasons discussed below, the motion is GRANTED.
I.
FACTUAL AND PROCEDURAL BACKGROUND
Some familiarity with the facts underlying this case is assumed. Solomon’s SAC
includes her First Amended Complaint (“FAC”) in its entirety, as well as 127 new paragraphs
and four new exhibits.2 The new material includes: (1) additional information about male, nonJewish, and/or younger faculty members at Fordham to supplement her disparate treatment and
Equal Pay Act allegations; (2) Fordham policies and statutes relating to faculty member
responsibilities and Fordham’s antidiscrimination policies; (3) additional allegations about
Fordham’s culture of secrecy in perpetuating the exclusion of women from administrative or
quasi-managerial tasks; (4) email attachments to correspondence between Solomon and Fordham
administrators in late 2017; and (5) allegations and exhibits regarding Fordham’s allegedly
retaliatory termination of her paid benefits in connection with the unpaid leave she took in Spring
2020.
While Solomon’s allegations span decades, the newly-pleaded material appearing in
Solomon’s SAC largely focus on issues occurring after September 2017, when the dispute about
her Spring 2018 teaching load began. Thus, events occurring prior to this period are summarized
briefly in Subsection I.A., infra, but are fully set out in the Court’s March 17 Opinion on
Fordham’s first motion to dismiss. See generally Solomon, 2020 WL 1272617.
Citations to allegations contained in the SAC itself are referred to by paragraph number, and citations to the text of
her attached exhibits are referred to by ECF page number. Newly alleged material appears at ¶¶ 200-327 and ECF
172–275.
2
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A.
Facts Prior to September 2017
Solomon is currently a tenured associate professor at Fordham’s Gabelli School of
Business, which offers both graduate and undergraduate courses at the Rose Hill campus in the
Bronx and the Lincoln Center campus in Manhattan. SAC ¶ 42. She was sixty-eight years old at
the time her initial Complaint was filed. Id. ¶ 43. Solomon is the only woman on the tenured
faculty in her area3 as well as the only Jewish full-time faculty member in the area. Id.
1.
Denial of Promotions
Solomon joined the Gabelli School in 1984 and was granted tenure in 1987. SAC ¶ 43.
She was denied promotion from associate professor to full professor twice: once in 2001 and
again in 2003. Id. ¶ 106. The SAC alleges that in 2001, the promotion committee chair
rescheduled the meeting from a Wednesday to a Friday, preventing two Jewish professors from
voting due to their observation of the Jewish Sabbath. Id. ¶ 107–8. Solomon alleges no facts
concerning the 2003 promotion denial.
2.
2013 Nomination to Area Chair
On September 25, 2013, 70 percent of the faculty in her area nominated Solomon to be
the area’s chair, a short-term leadership position. SAC ¶ 17. She alleges that four days later the
dean of the Gabelli School, Donna Rapaccioli, called her to orally propose a contract for
Solomon to serve as the area’s chair for three years for a stipend of between $18,000 and
$20,000, and a reduced course load of one class per semester. Id. ¶ 16. Solomon alleges that
Fordham reneged on this agreement on October 2, when the then-provost, Stephen Freedman,
spoke with Solomon, Dean Rapaccioli, and John Hollwitz — another professor in Solomon’s
The Gabelli School is organized into a number of departments, called “areas.” Solomon is currently a member of
the Organizational Behavior/Leading People and Organizations Area. SAC ¶ 3.
3
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area — and sought to jointly appoint Solomon, Hollwitz, and one other person to the chair
position in a “tripartite” structure. Id. ¶ 117. Later that day, Freedman and Rapaccioli
announced that they would appoint Hollwitz alone to the chair position. Id. ¶ 18.
On October 7, 2013, Freedman conducted a “Chair Termination Hearing” to remove
Solomon from the chair position. Id. ¶ 118. In her SAC, Solomon newly alleges that Freedman
demeaned her at this hearing, comparing her to a child. She alleges that he likened her brief area
chair appointment to a situation in which “[on] Sunday one is given a certain understanding and
then on Monday morning, that’s changed; we all deal with our children in this way . . . but
changes happen; decisions change.” Id. ¶ 259 (emphasis in original). Freedman also referred to
Solomon as having “strong opinions” about the chair appointment. Id. ¶ 261.
On October 27, 2017, Solomon sent a letter to a vice president in the provost’s office,
copying Provost Freedman, Dean Rapaccioli, and another Fordham vice president. Id. at ECF
108–12. In that letter, she recounted her 2013 experience surrounding the offer and withdrawal
of the area chair position. She described having since been excluded from administrative and
curricular tasks at the Gabelli School and being “marginalized.” Id.
3.
Objections to Actions as Faculty Senator
Solomon also alleges mistreatment regarding her input into a 2015–2016 curriculum
revision in the Gabelli School. SAC ¶ 124. As a Faculty Senator representing the Gabelli
School, Solomon raised concerns that a “lack of appropriate involvement of senior tenured
faculty . . . precluded senior faculty from exercising their rights and contributing with expertise
to the program quality.” Id. On January 27, 2016, two members of Gabelli’s Executive
Committee convened a faculty meeting and passed a resolution seeking removal of Solomon and
Dorothy Klotz, another professor concerned about the revision, as faculty senators. Id. at ECF
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153. In a February email to the Faculty Senate’s Executive Committee, Gabelli Executive
Committee members Bob Wharton and Sris Chatterjee included a memo that called Klotz and
Solomon’s behavior “unprofessional” and “predicated on a series of material misrepresentations
made to the Faculty Senate.” Id. at ECF 152. In March 2016, one of the members of the faculty,
Michael Pirson, described Solomon as having a strong personalit[y].” Id. ¶ 75.
B.
Disagreements Over Solomon’s Spring 2018 Teaching Schedule
In May 2017, Pirson, then the director of one of the master’s degree programs of the
Gabelli School, first indicated that Solomon would be assigned two elective graduate courses for
the Spring 2018 semester.4 Id. ¶ 76. Pirson later assigned Solomon her Spring 2018 teaching
schedule in September 2017 while Solomon was on leave, writing that the schedule was “in case
you come back.” Id. ¶¶ 66, 88. She was assigned to teach two sections of an undergraduate
management course in the Bronx, and one graduate-level course in Manhattan. Id. ¶ 68.
In her SAC, Solomon newly includes several emails exchanged between her and Pirson
regarding the Spring 2018 schedule. Solomon also included these emails as PDF attachments in
her December 18, 2017 email to Fordham’s Title IX coordinator, Anastacia Coleman, described
in detail in Section I.C., infra. The email attachments show that Pirson first wrote to Solomon on
September 26, 2017, assigning her two undergraduate Principles of Management classes, both of
which were scheduled for Tuesday and Friday mornings. Id. at ECF 221. At some point
between this course assignment and November 30, 2017, Pirson changed one of her Principles of
Management sections from the Tuesday/Friday slots to a single consolidated Tuesday afternoon
section.5 Id. at ECF 221. The exchange does not indicate that he made any other changes to the
4
Ultimately, Solomon alleges, a male faculty member and an adjunct were assigned to these elective courses. SAC
¶ 76.
5
There is no contemporaneous correspondence attached to the SAC regarding the first scheduling change.
5
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schedule at that time. On November 30, 2017, Solomon wrote to Pirson, urging him to restore to
her the teaching schedule assigned on September 26. Id. at ECF 221. She also asked that a
prerequisite for her graduate course be dropped. Id. Pirson responded, stating that he had
changed the Principles of Management section to a Tuesday afternoon because he “wrongfully
assumed having most of the teaching on Tuesday would be easier for [Solomon].” Id. at ECF
223. Pirson indicated that he would again change the course schedule and further look into the
prerequisite issue. Id.
Pirson wrote back to Solomon on December 1, 2017, informing her that the graduate
course she had been initially scheduled to teach in Spring 2018 would be cancelled. Id. at ECF
225. He stated that she may, however, have the opportunity to teach one MBA course. Id. His
email made no further reference to changes to the course times of her two undergraduate courses.
Id. Solomon replied to Pirson on December 11, 2017 to ask when the promised change to her
Spring 2018 schedule would occur. Id. at ECF 226. Pirson wrote back that the professor who
had agreed to take her prior Principles of Management Section “now has scheduling issues as he
arranged his schedule around the class.” Id. at ECF 227. Solomon urged Pirson to reconsider,
noting that “changes are being made to disadvantage me, a female senior tenured faculty
member, to accommodate a male, who is not even a faculty member.” Id. at ECF 229.
At some point during this exchange, Solomon was assigned a different graduate course as
her third class, which was scheduled at an inconvenient evening time. Id. ¶ 83. Solomon’s final
schedule thus caused her to have class on three separate days per week — “unprecedented,” she
alleges, for a senior member of the faculty. Id. She alleges that the schedule “make[s] it very
difficult for her to have substantial blocks of time to engage in research and scholarship” and was
“physically taxing.” Id. ¶¶ 74, 99. She also alleges that Pirson did not assign either himself or
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Professor Hollwitz any sections of the introductory undergraduate course that she was assigned.
Id. ¶ 73. She further states that, while she was assigned 50 class sessions in Spring 2018, Pirson
was only assigned 12 sessions and a student trip to Brazil, and Hollwitz was assigned between 4
and 16 class sessions. Id. ¶ 73. Finally, she alleges that her original graduate course was
cancelled because Pirson failed to advertise it, causing too-few students to enroll. Id. ¶ 79.
C.
Emails with Compliance Office Concerning Past Informal Complaints
On December 18, 2017, Solomon emailed Anastasia Coleman, Fordham’s Title IX
coordinator and Director of Institutional Equity & Compliance, copying General Counsel Elaine
Crosson. SAC at ECF 70. In this email, Solomon asked for information on steps taken to
investigate the complaints she had raised in her October 27 letter to Rapaccioli and Freedman
regarding her 2013 Chair Termination Hearing. Id.6 Her email also referenced her recent
conflict with the Gabelli administration regarding her course assignments, and asked for
Coleman’s “plan to address and rectify the recent scheduling issues.” Id. Solomon included as
attachments to this December 18, 2017 email the three email chains between her and Pirson
regarding her Spring 2018 teaching schedule described in Section I.B., supra.
Coleman responded on December 20, 2017. She indicated that she had no records of
contact between herself and Solomon in reference to Solomon “filing a discrimination and
retaliation allegation.” Id. at ECF 71. Coleman asked Solomon to send a copy of the October 27
letter and clarify the basis of Solomon’s allegations. Id. Coleman stated that she was “very
willing to investigate further but will need these clarifications from [Solomon].” Id.
Solomon wrote back on December 21, 2017. Solomon indicated that she and Coleman
Simultaneous to Solomon’s exchange with Coleman, Solomon was also in correspondence with Dean Donna
Rapaccioli about allegations that Solomon had “engaged in conversation that was viewed as lacking civility” with
regard to the scheduling dispute. SAC at ECF 74; see also Solomon, 2020 WL 1272617, at *6.
6
7
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had previously spoken by telephone in 2014 and that Klotz, the other senator who had
complained about transparency in curriculum planning, had registered complaints with Coleman
in 2016. Id. at ECF 72. Solomon also wrote to Coleman in reference to her October 27, 2017
letter to Freedman, stating that “I asked you for the results of the EEOC investigation that
Provost Freedman should have launched based on my ongoing complains [sic] regarding
retaliation and discrimination against me.” Id. (emphasis in original).
Solomon included PDFs of three email chains as attachments to her December 21, 2017
email, two of which dealt with the fallout from the 2016 conflict about curricular revisions. Id. at
ECF 234–44. The emails show that on February 2, 2016, Anne Fernald, the Faculty Senate
president, had asked Solomon and Klotz to “write up a full list of the complaints you have
regarding governance in your school” so that the University could assess remedies moving
forward. Id. at ECF 239. Klotz refused, stating that she believed that doing so would lead to
other individuals being “publicly humiliated.” Id. at ECF 240. Klotz also noted that she had met
with Ms. Coleman in January 2016 regarding the EEOC complaint of a “Professor Wright.” Id.
at ECF 240. As her third email attachment, Solomon included an email chain between her and
Dean Rapaccioli regarding allegations that Solomon had engaged in an uncivil conversation and
advising her to adhere to Fordham’s Code of Conduct. Id. at ECF 244.
D.
The EEOC Complaint and Subsequent Developments
Solomon filed a complaint with the U.S. Equal Employment Opportunity Commission
(“EEOC”) on January 11, 2018. SAC ¶ 22. On February 5, General Counsel Crosson sent an
email to Solomon indicating that she was aware of Solomon’s EEOC complaint. Crosson wrote:
[C]oncerns have been raised by some of your colleagues that you have accused them of
unlawful discriminatory behavior and that you have expressed this in both a public and private
forum. We recommend that you limit your comments to assert only factual allegations such as “I
have filed a claim with the EEOC alleging discrimination by the University”. To render public
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accusations of discrimination against other members of the University community concerning
matters that have not yet been investigated may cause damage to the reputation of your
colleagues and may subject you to legal exposure.
Id. at ECF 19.
The EEOC issued a Right to Sue letter on February 28, 2018. Id. ¶ 27. Solomon alleges
that Fordham then escalated its discrimination by assigning her Fall 2018 classes in the Bronx
that were scheduled for late Friday afternoons and for time slots ending at 9:15 p.m. Id. ¶ 27.
Solomon filed this action on May 24, 2018. Doc. 1. On June 4, 2018, a new acting chair
of Solomon’s area announced another course schedule for her, covering three classes in Fall 2018
and three classes in Spring 2019. Id. ¶ 187. Solomon alleges that the schedule “included
multiple sections of courses which counted as 1.5 credit [sic] for male younger faculty,” but did
not count as much for her. Id. She characterizes this teaching load as “retaliatory” and
“punitive,” and she claims it was in excess of Fordham’s “contractual teaching load.” Id.
Solomon took leave pursuant to the FMLA during the Fall 2018 semester. Id. ¶ 192. She
alleges that “non-existing rules were cited to penalize her with another heavier than normal
teaching load the next semester . . . .” Id. Solomon requested a meeting in December 2018 with
Dean Rapaccioli to discuss her Spring 2019 assignments. Id. at ECF 167. After attempting to
negotiate a reduced spring course load, Solomon requested unpaid leave on December 12, 2018.
Id. at ECF 163. In a December 14 email, the acting chair of Solomon’s area indicated “that the
Provost Office [would] not be willing to grant an unpaid leave of absence for the Spring 2019
except if required by law.” Id. at ECF 166. On December 16, Solomon emailed Fordham
President McShane, requesting that he personally approve her unpaid leave of absence for the
spring. Id. at ECF 160. Solomon was granted unpaid leave shortly after.
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E.
The Termination of Solomon’s Paid Benefits
Solomon’s SAC contains a new allegation that Fordham stripped her of her paid health
benefits on February 1, 2020 in retaliation for her activities in this case. She alleges that as of
February 1, 2020 she was required to pay for the continuation of her health benefits through
COBRA for terminated employees. Id. ¶ 315.7 She states that this is a continuation of a pattern
of retaliation that began with lapses in her insurance in May and July 2019 that were later
rectified. Id. ¶ 313.
On December 2, 2019, Solomon emailed Pirson to object to her assignment of an
undergraduate Principles of Management course in the Bronx, in addition to two other graduate
courses. Id. at ECF 269. On December 18, Solomon again wrote to Pirson to state that teaching
three classes would be burdensome, copying Fordham President McShane and suggesting a
course release as an alternative. Id. at ECF 267.8 On December 20, 2019, Solomon emailed
Fordham President McShane and Provost Dennis Jacobs.9 Id. at ECF 265. She stated that she
would take unpaid leave in Spring 2020 rather than teach the proposed three class schedule. Id.
She also argued that Fordham Statute § 4-05.08 permitted her to maintain full health benefits
during this leave period.
Vice Provost Jonathan Crystal responded to her email on December 23, 2019. He
informed her that the Provost’s office would honor her request for unpaid leave but would not
The COBRA form states that her qualifying event type was “Termination.” SAC at ¶ 317. However, the parties
agree that she went on unpaid leave without benefits during Spring 2020. See Doc. 76, Defendant’s Memorandum
of Law in Support of its Motion to Dismiss the Second Amended Complaint (“Defs’ Br.”), at 22; Doc. 80, Plaintiff’s
Opposition to Defendant’s Motion to Dismiss (“Pls. Opp.”), at 2.
7
8
The December 18 email references the fact that Pirson had replied on December 13, but his reply is not attached to
the SAC.
This email also includes a reference to a response from Pirson on December 19, 2019 to Solomon’s December 18
email, but that response is not included in the SAC.
9
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cover the cost of medical benefits during that period. Id. at ECF 266. Crystal informed her that
Fordham’s statutes permitted unpaid leave with benefits only when the leave is taken for faculty
development purposes “for study and research” or “when deemed to be in the interest of the
University.” Id. He further stated that the University determined it was its best interest “for
[Solomon] to teach the courses [she had] been assigned,” rather than to go on unpaid leave, thus
rendering her ineligible for unpaid leave with benefits. Id. Finally, Crystal wrote that HR would
provide her with details regarding how she could continue medical coverage during this leave
period through COBRA—that is, at her own expense. Id.
Solomon responded to Crystal’s email on January 2, 2020. She reiterated that she was
fully prepared to teach the two graduate courses but objected to the undergraduate Bronx course
assignment on the grounds that it was discriminatory. Id. at ECF 261–62. She also claimed that
if Fordham was trying to terminate her, it needed to follow applicable notice and hearing
procedures. Id. at ECF 261. Finally, she reiterated her disagreement with Crystal’s reading of
Fordham’s statutes regarding continuation of benefits. Id. at 262. Crystal again replied on
January 9, 2020. Doc. 82-1.10 He informed Solomon that she was not being terminated or
accused of violating her contract, and that he did not seek to initiate the disciplinary process. Id.
at 2–3. He also further denied her proposal to teach two classes instead of three, stating that
Fordham’s policy of a yearly 3/2 class load applied to academic years, not calendar years, and
leaves of absence such as her Fall 2019 leave were weighed as two classes. Id. at 2. He again
presented the university’s position that unpaid leave with paid benefits was unavailable in her
situation. Id. Sometime in early February 2020, Solomon received a COBRA election form
This email was not attached to Solomon’s SAC in its entirety, but it was incorporated by reference in the SAC
through Solomon’s discussion and quoting of an excerpt from it. See SAC at ¶ 321. Fordham attached the email in
full in its reply brief. See Doc. 82-1.
10
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dated February 1, 2020.
F.
Unequal Pay Allegations
Solomon also alleged that she has been underpaid compared to “similarly situated male
faculty members and even younger faculty members” for much of her career at Fordham. SAC
¶ 2. During the 2017 and 2018 academic years, she was paid less than $123,000 as an associate
professor. Id. ¶ 8. Citing to Glassdoor, a salary comparison website, Solomon alleges that
lower-ranked assistant professors make, on average, $137,000 per year. Id.
In her FAC, Solomon described the salary of two comparator professors: Hollwitz and
Pirson. Hollwitz, she alleges, earned a salary of $400,000 in 2010 for “performing the same
Professor job as she does.” Id. ¶ 5. Hollwitz was appointed area chair in 2013 and served in
that capacity until 2016. Id. ¶¶ 18, 122. Hollwitz also was Fordham’s Vice President of
Academic Affairs in 2004. Id. ¶ 113. She does not allege whether he is an associate or full
professor. Pirson allegedly earns $300,000 per year and is director of two interdisciplinary
programs. Id. ¶ 6. At the time Solomon filed her FAC, he served as acting chair of Solomon’s
area and was the “most recently tenured faculty.” Id. Solomon does not allege whether he is an
associate or full professor.
In her SAC, Solomon supplements these allegations by attaching several Fordham
statutes pertaining to the roles and responsibilities of Fordham’s faculty.11 According to the
statutes, “Faculty” includes distinguished professors, university professors, professors, associate
professors and assistant professors who are tenured or have received tenure-track appointments.
SAC at ¶ 206. She also cites Fordham Statute § 4-01.02, which indicates that Faculty members
have responsibility over “curriculum, subject matter and methods of instruction, research, faculty
11
She also proffers these allegations in support of her Title VII and ADEA claims that similarly situated professors
were not given comparable teaching loads.
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status, and those aspects of student life which relate to the educational process.” Id. She alleges
that all faculty members are subject to “the same teaching, research and service standards.” Id.
at ¶ 215. The maximum faculty course load is no more than five courses per year, which can be
reduced to two courses per semester, or even fewer annually, through course releases. Id. at 213.
Course releases may be granted for reasons such as “engage[ment] in major research projects,”
significant time spent “in the direction of graduate student research,” “significant administrative
responsibilities,” or “other activities which justify a reduction of course load.” ECF 179.
Solomon joined the Management Systems Area in 1987, and was sixty-eight years old at
the time she first filed her Complaint in 2018. Id. ¶ 43.12 She alleges the names of fourteen male
faculty members in the area, along with the dates they joined the area. Id. ¶ 216. Solomon also
states the names of certain younger female professors in the Business School whom she alleges
received higher salaries and better benefits than her. Id. ¶ 244. Solomon also newly alleges the
higher salaries of two other male professors, one in his 40s and one in his 50s. Id. ¶ 237. She
does not allege their names or additional details about their job content, title or responsibilities.
Solomon also recounts the experiences of professors who are either older, female, or
Jewish who had various negative experiences regarding their course assignments. These include
Marek Hessel, a Jewish professor who was made to teach what he described as “baby math”;
Janet Marks, a female professor who was allegedly not allowed to teach in conformance with her
contract; Edmond Weiss, an older Jewish professor whose working conditions became
“physically untenable”; and Milan Zeleny, an older professor who was also sent to the Bronx to
teach undergraduates. See id. at ¶¶ 304-311.
The “Leading People and Organizations” Area was previously split off from a larger “Management Systems”
area.
12
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G.
Procedural History
Solomon filed her pro se Complaint on May 15, 2018. She filed an amended complaint
on March 13, 2019. Fordham moved to dismiss the Amended Complaint on May 6, 2019. This
Court granted Fordham’s motion on March 17, 2020, but granted her leave to re-file a second
amended complaint. She did so on April 16, 2020. Fordham moved to dismiss the SAC on May
29, 2020.
II.
LEGAL STANDARD
Under Rule 12(b)(6), a complaint may be dismissed for “failure to state a claim upon
which relief can be granted.” Fed. R. Civ. P. 12(b)(6). When ruling on a motion to dismiss
pursuant to Rule 12(b)(6), the Court must accept all factual allegations in the complaint as true
and draw all reasonable inferences in the plaintiff’s favor. See Koch v. Chrisite’s Int’l PLC, 699
F.3d 141, 145 (2d Cir. 2012). The Court is not required, however, to credit “mere conclusory
statements” or “[t]hreadbare recitals of the elements of a cause of action.” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Even though
“a discrimination complaint need not allege facts establishing each element of a prima facie case
of discrimination” to survive a motion to dismiss, “it must at a minimum assert nonconclusory
factual matter sufficient to ‘nudge its claims’ across the line from conceivable to plausible.’”
E.E.O.C. v. Port Auth. of N.Y. & N.J., 768 F.3d 247, 254 (2d Cir. 2014) (quoting Iqbal, 556 U.S.
at 680) (internal alternations omitted). A claim is facially plausible “when the plaintiff pleads
factual content that allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556).
Courts should read pro se pleadings “liberally and interpret them to raise the strongest
arguments that they suggest.” Jorgensen v. Epic/Sony Records, 351 F.3d 46, 50 (2d Cir. 2003)
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(quotation marks omitted) (quoting McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999)).
The obligation to read a pro se litigant’s pleadings leniently “applies with particular force when
the plaintiff’s civil rights are at issue.” Jackson v. N.Y. State Dep’t of Labor, 709 F. Supp. 2d 218,
224 (S.D.N.Y. 2010) (citing McEachin v. McGuinnis, 357 F.3d 197, 200 (2d Cir. 2004)).
“However, even pro se plaintiffs asserting civil right claims cannot withstand a motion to dismiss
unless their pleadings contain factual allegations sufficient to raise a ‘right to relief above the
speculative level.’” Id. (quoting Twombly, 550 U.S. at 555).
Title VII and the ADEA require plaintiffs in New York to make a complaint to the EEOC
within 300 days of the alleged adverse action in order for their claims to be considered timely in
federal court. Gindi v. N.Y.C. Dep’t of Educ., 786 F. App’x 280, 282 (2d Cir. 2019) (citing 42
U.S.C. § 2000e-5(e)(1) and 29 U.S.C. § 626(d)). Given that this case was filed with the EEOC
on January 1, 2018, only conduct occurring after March 7, 2017 is timely under Title VII and the
ADEA. FMLA claims carry a statute of limitations of two years — three years if the violation of
the statute is “willful.” 29 U.S.C. § 2617(c); see also Offor v. Mercy Med. Ctr., 676 F. App’x 51,
53 (2d Cir. 2017).
III.
FEDERAL DISPARATE TREATMENT DISCRIMINATION
Because Solomon’s SAC includes the First Amended Complaint in its entirety with
additional allegations and exhibits, the Court construes her SAC to raise the same claims as the
FAC, but with the additional facts in support described in Section I, supra. Thus, Solomon
alleges disparate treatment discrimination under Title VII on the basis of her sex and religion as a
Jewish woman, and brings an age discrimination claim under the ADEA as an older employee.
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A.
Title VII and ADEA Claims
“[T]o defeat a motion to dismiss . . . in a Title VII discrimination case, a plaintiff must
plausibly allege that (1) the employer took adverse action against [her], and (2) [her] race, color,
religion, sex, or national origin was a motivating factor in the employment decision.” See Vega
v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 87 (2d Cir. 2015). When a plaintiff alleges
that the discrimination is implicit, rather than direct and open, she must allege that “(1) she
belonged to a protected class; (2) she was qualified for the position; (3) she suffered an adverse
employment action; and (4) the adverse employment action occurred under circumstances giving
rise to an inference of discriminatory intent.” Sanders v. N.Y.C. Human Res. Admin., 361 F.3d
749, 755 (2d Cir. 2004) (alterations and citation omitted). This four-part analysis applies to the
ADEA as well. See Mazzo v. Mnuchin, 751 F. App’x 13, 14 (2d Cir. 2018) (quoting Roge v.
NYP Holdings, Inc., 257 F.3d 164, 168 (2d Cir. 2001)).
The parties do not dispute the first two prongs of this test. In the Court’s March 17
Opinion granting Fordham’s motion to dismiss, the Court found that the FAC alleged four
potential adverse employment actions that could provide a basis for a Title VII or ADA claim:
(1) denial of promotions in 2001 and 2003; (2) allegations in connection with her failure to be
appointed an acting area chair in June 2017 and Fordham’s failure to reimburse her for
conferences later in 2017; (3) changes made to her teaching schedule for Spring 2018 and after;
and (4) allegations that she was denied research funding in December 2017. See Solomon, 2020
WL 1272617, at *10–11. Of these, the Court found that only the third—changes her to teaching
load in Spring 2018—could plausibly constitute an actionable adverse employment action. Id. at
*11 (“Solomon was forced to teach more classes for the same amount of pay as before, with the
added burden of having to commute between the two campuses when she had not been required
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to do so before.”). The Court found, however, that Solomon did not sufficiently allege any other
facts that raised an inference of discrimination surrounding this action and dismissed the claim.
Id. at *12–13.
Solomon does not allege any new adverse employment actions in connection with her
Title VII or ADEA discrimination claims. She does, however, provide additional facts that she
argues support an inference of discrimination regarding changes to her teaching schedule in
Spring 2018 and beyond. Thus, to assess whether she has properly repleaded her Title VII and
ADEA claims, the Court will consider whether these additional facts support an inference that
changes to her teaching schedule were motivated by discrimination.
1.
New Comparator Allegations
To support an inference of discriminatory treatment, a plaintiff must plead facts “showing
that the employer subjected him to disparate treatment, that is, treated him less favorably than a
similarly situated employee outside his protected group.” Graham v. Long Island R.R., 230 F.3d
34, 39 (2d Cir. 2000). To assess whether another employee is similarly situated in all material
respects, courts must consider “(1) whether the plaintiff and [comparators] were subject to the
same workplace standards and (2) whether the conduct for which the employer imposed
discipline was of comparable seriousness.” Id. at 40. Courts may also consider characteristics
such as the employees’ education, work experience, and specific job content and duties. See
McPherson v. NYP Holdings, Inc., No. 03 Civ. 4517(NGG)(LB), 2005 WL 2129172, at *4
(E.D.N.Y. Sept. 1, 2005), aff'd, 227 F. App'x 51 (2d Cir. 2007).
This Court previously found that Professors Hollwitz and Pirson, who earn more than
Solomon and were not required to teach undergraduate courses in the Bronx in Spring 2018,
were not similarly situated to her. See Solomon, 2020 WL 1272617 at *12. The Court cited the
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fact that Pirson was the acting chair of Solomon’s Area in 2018 when schedules were issued, and
that Hollwitz had previously served in various administrative roles such as Area Chair and Vice
President of Academic Affairs. Id.
In her SAC, Solomon pleads the names of fourteen male professors whom she alleges are
similarly situated to her, as well as the dates they joined Solomon’s area. SAC ¶ 216. This list
includes Hollwitz and Pirson. Id. In support of her ADEA claim, she provides the names of
three female professors in the business school, whom she alleges are also comparators. Id. at
244. Finally, she alleges the names of several people who are “either older, female, or Jewish, or
a combination” whom she alleges have also been treated in a disparate way similar to her. SAC
¶ 304.
Solomon’s core argument is that all tenured faculty members in her Area are similarly
situated and thus proper comparators. See Pls. Opp. at 7. In support she cites Fordham Statute §
4–03.01, which delineates certain responsibilities common to all Fordham faculty members. See
SAC at ¶ 210. She notes in particular that all full-time faculty members are subject to the same
maximum teaching load of no more than five courses per year (2/3 or 3/2 per semester) and the
same University Code of Conduct and disciplinary processes. SAC ¶ 213; Pls. Opp. at 7–8. On
this basis, she argues that her position is “substantially equivalent” to that of other faculty
members because she is subject to the “same performance evaluation and discipline standards.”
SAC ¶ 217; see also Pls. Mem. at 7 n.15 (citing Graham, 230 F. 3d at 40). With the exception of
professors Pirson and Hollwitz, she does not specifically allege the Spring 2018 workloads of
any comparator professors.
Solomon’s argument that any faculty member in the business school is similarly situated
to her by virtue of the Fordham statutes sweeps too broadly. The faculty duties described by the
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Fordham statutes are quite expansive and varied, and could describe the work of virtually any
professor. See SAC at ECF No. 179 (listing faculty responsibilities such as “satisfactory
fulfillment of teaching duties in assigned courses or their equivalent,” “involvement in significant
scholarly research,” and “scholarly publication.”).13 Indeed, the SAC includes allegations that
would support a finding that the day-to-day responsibilities of faculty members vary
significantly. See SAC at ¶ 221 (noting that many faculty members “are given administrative
appointments such as Area Chairs, Directors of Programs, [and] Coordinators of Programs”
which involve “additional compensation, course releases, power and privileges, [and] decisionmaking.”). Thus, listing faculty members and the years they joined the area is insufficient to
establish those faculty members’ comparator status without factual allegations about “how their
workplace conduct compared to [Solomon’s], or how they were treated.” See Henry v. NYC
Health & Hosp. Corp., 18 F. Supp. 3d 396, 408 (S.D.N.Y. 2014); see also Sosa v. N.Y.C. Dep’t of
Educ., 368 F. Supp. 3d 489, 514 n.17 (E.D.N.Y. 2019) (“When determining whether employees
are similarly situated, courts consider characteristics including the employees’ education, work
experience, and specific work duties.”) (emphasis added) (quoting McPherson, 2005 WL
2129172, at *4).
The introduction of the Fordham statutes is also insufficient to supplement Solomon’s
prior allegations regarding Pirson and Hollwitz, who are the only professors whose Spring 2018
schedules she has explicitly compared to her own. The Court previously found that Pirson and
Hollwitz were not similarly situated to Solomon, both because they were “differentiated in their
administrative roles or seniority,” and because Solomon failed to allege that she was subject to
This list appears to be nonexhaustive as well. See § 4-03.01 (“Responsibilities of the Faculty include . . .)
(emphasis added).
13
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the same job requirements as them. See Solomon, 2020 WL 1272617, at *12. Construing the
facts most favorably to Solomon, she has now alleged that they are all subject to requirements of
Fordham’s statutes, including the maximum course load of five courses per year. However,
Fordham’s statutes provide a great deal of flexibility within this rule: § 4-03.02(b) states that:
The course load may be reduced for individual faculty members engaged in major
research projects, faculty with graduate teaching responsibilities who spend much of the time in
the direction of graduate student research, and for faculty members heavily involved in
laboratory instruction, the direction of field work or other activities which justify a reduction of
course load. Chairpersons and other faculty with significant administrative responsibilities are
given consideration in the reduction of their teaching loads.
See SAC at ECF 179.
Solomon’s allegations that Pirson and Hollwitz had less rigorous teaching schedules than
her therefore remain insufficient in light of the job requirements that she has presented. Solomon
does not allege facts supporting an inference that she is similarly situated to either professor in
terms of “major research projects,” “graduate teaching responsibilities,” “significant
administrative responsibilities” or other factors that are considered in determining a reduced
course load pursuant to Fordham’s statutes. The SAC also includes some facts that suggest these
factors differ among Solomon, Pirson and Hollwitz. See, e.g., SAC ¶¶ 219–20 (recounting
Pirson and Hollwitz’s administrative experience); ¶ 232 (alleging that Pirson and Hollwitz, but
not Solomon, teach in the Executive MBA program).14 Nor does she argue that any of their
course loads violated the Fordham statutes she cites. Thus, Solomon has failed to allege facts
showing that Pirson and Hollwitz, or any other alleged comparator individuals, are similarly
situated to her regarding her allegations of a discriminatory teaching load.
14
Solomon argues that having previously held an administrative position does not automatically disqualify other
faculty members from being similarly situated once they transition back into a non-administrative role. Pls. Opp. at
10. This may be true depending on the situation, but it is still Solomon’s obligation to plead facts establishing that
any such individuals are similarly situated to her in their present capacity as non-administrators. She has not done
so with Pirson or Hollwitz.
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2.
Pattern of Derogatory Statements
The Second Circuit has recognized that “actions or remarks made by decisionmakers that
could be viewed as reflecting a discriminatory animus may give rise to an inference of
discriminatory motive” regarding an adverse employment action. Gregory v. Daly, 243 F.3d 687,
697 (2d Cir. 2001) (internal quotation marks and citation omitted). However, the more “remote
and oblique the remarks are in relation to the employer’s adverse action, the less they prove that
the action was motivated by discrimination.” Tomassi v. Insignia Fin. Grp., Inc., 478 F.3d 111,
115 (2d Cir. 2007), abrogated in part on other grounds by Gross v. FBL Fin. Servs., Inc., 557
U.S. 167 (2009).
In the Court’s March 17 Opinion, it found that Solomon had not alleged any statements of
sufficient severity or pervasiveness to support her disparate treatment allegations. See Solomon,
2020 WL 1272617, at *12. Here, Solomon alleges two purportedly sexist comments that were
made by then-Provost Freedman in 2013. These statements both arose in connection with
Solomon’s “Chair Termination Hearing,” in which Solomon was allegedly removed as area chair.
Solomon alleges that then-Provost Freedman said the following about Solomon’s situation at this
hearing, citing an audio transcript:
PROVOST FREEDMAN: . . . but I’ve been in situations where individuals—on a
Sunday—really believe something happened and on a Monday morning, the situation
changes. Those things happen . . .
PROVOST FREEDMAN: . . . and I agree with you: what one has to do in a situation
where on [a] Sunday one is given a certain understanding and then on Monday morning,
that’s changed; we all deal with our children this way, then end up being disappointed in
the situations where they were led to believe a certain way and we all deal with
professionals in the same way but changes happen; decisions change.”
SAC at ¶ 259 (emphasis and alterations in original).
Solomon also alleges that Freedman made the following remarks in a telephone
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conversation several days before the Chair Termination Hearing:
Esther obviously has very strong opinions about this [her removal as Area Chair] for
reasons that are hers. I want to incorporate those strong opinions in my decision. But I
don’t want her strong opinions and Esther, I’m saying this with all respect, I do not want
your strong opinion to unduly influence what is best for the department going forward. I
want to make a judgment, a decision that really reflect[s] all of the input that I receive
OK.
Id. at ¶ 261 (emphasis in original).
Solomon provides only a limited background to Freedman’s statements, making their
meaning somewhat ambiguous and difficult to divine. However, viewed in the light most
favorable to Solomon, Freedman’s remarks could be interpreted as disrespectfully and
pejoratively comparing her to a child, as well as denigrating women who hold “strong opinions.”
Even so, however, they do not plausibly give rise to an inference that Solomon’s Spring 2018
teaching schedule was motivated by sex discrimination, for three reasons. First, Freedman’s
comments were made in 2013, over four years before Solomon’s Spring 2018 schedule was
imposed, which is the only adverse employment action at issue here. Second, and relatedly,
Freedman made these remarks in a much different context from the scheduling dispute, as his
comments arose in the context of a disagreement over whether Solomon would serve as Area
Chair in 2013. Third, Solomon alleges that it was Pirson, not Freedman, who was responsible for
her Spring 2018 course assignment.15
Thus, even though Freedman’s remarks may well have been discriminatory, the fact that
they were made several years earlier, in a different context, by someone with no specifically
alleged involvement in the later adverse employment action, does not suffice to allege an
inference of discriminatory intent. See Tomassi, 478 F.3d at 115 (“[R]emarks made by someone
Freedman is copied on some, but not all, of the emails documenting Solomon’s correspondence with Fordham
administrators about her 2018 teaching schedule. See SAC at ECF 221–229. However, Freedman does not
participate in this email chain, as Solomon’s correspondence is exclusively with Pirson.
15
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other than the person who made the decision adversely affecting the plaintiff may have little
tendency to show that the decision-maker was motivated by the discriminatory sentiment
expressed in the remark.”); see also Minton v. Lenox Hill Hosp., 160 F. Supp. 2d 687, 695
(S.D.N.Y. 2001) (declining to weigh derogatory statements made by individuals who were not
decisionmakers, or by decision-makers unrelated to the decision-making process).
3.
Failure to Investigate
An employer’s noncompliance with its own anti-discrimination policy may give rise to an
inference of discriminatory intent. See Collins v. Cohen Pontani Lieberman & Pavane, No. 04
Civ. 8983 (KMH)(MHD), 2008 WL 2971668, at *10 (S.D.N.Y. July 31, 2008) (citing Reed v.
Conn. Dep’t of Transp., 161 F. Supp. 2d 73, 81 (D. Conn. 2001)).
Solomon alleges that Fordham failed to investigate her claims of gender and age
discrimination, thus raising an inference that her Spring 2018 teaching load was retaliatory. The
Court previously found that she failed to plead facts supporting this allegation in her FAC, noting
that (1) she did not plead Fordham’s policy for investigating complaints of discrimination; (2)
she never filed a formal complaint; (3) the October 2017 letter that provided the basis of her
complaint did not mention her gender, age or religion at all, nor did it mention scheduling issues.
Solomon, 2020 WL 1272617, at *13.
Solomon now attaches Fordham statutes pertaining to its Whistleblower Policy. See SAC
at ECF 205–7. She also cites to newly included attachments from a December 2017 email
exchange between herself and Anastacia Coleman, Fordham’s Title IX coordinator. See SAC at
ECF 220–29.16 These email attachments document the Spring 2018 teaching schedule dispute.
Thus, viewed in the light most favorable to Solomon, she alleges that these email attachments
16
Solomon’s FAC had included the correspondence with Coleman, but not the email attachments.
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show that Fordham failed to investigate Solomon’s past complaints of unlawful discrimination
on the basis of age, religion and gender pursuant to Fordham’s Whistleblower Policy, raising an
inference of discrimination regarding her Spring 2018 schedule. See SAC at ¶ 287.
The Whistleblower Policy states in relevant part that employees are protected from
retaliation, and thus entitled to an investigation, when they make “wrongful conduct concerns.”
SAC at ECF 205. A wrongful conduct concern is a suspected “violation of University policies: a
violation of applicable local, New York State, and Federal laws; or the use of University
property, resources, or authority for personal gain or other non-University-related purposes.” Id.
Concerns are to be “reported either verbally or in writing as soon as practicable.” Id. at ECF 206
(listing various entities to whom one can make reports). Reports are to “promptly investigated.”
Id. The statutes also note, however, that “this policy is not intended to be the method for
reporting . . . issues related to alleged employment discrimination . . . which should be handled in
accordance with the University’s Personnel and Student Conduct Policies.” Id at ECF 205.17
Thus, while it appears that there are additional requirements for lodging a formal internal
complaint not before the Court, Solomon at the very least alleges that she raised concerns of a
“violation of University policies” or of “applicable local, New York State, and Federal laws”
regarding discrimination against her on the basis of age, gender or religion, which would have
obligated Fordham to respond with some sort of investigation.
There is still, however, no basis for Solomon’s allegation that Fordham failed to follow its
own investigatory procedures under the standard laid out by this Whistleblower Policy.
These Personnel and Student Conduct Policies are not attached to the Complaint. Solomon does attach a
document titled “Fordham University Sexual Harassment in Employment Prevention Policy.” See SAC at ECF
213–16. While this document includes a summary of applicable state and local antidiscrimination law, it does not
explain Fordham’s policy for lodging an internal complaint.
17
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Solomon’s December 18, 2017 email focused on a letter she had emailed to Freedman on
October 27, 2017. But as described in the March 17, 2020 Opinion, this letter describes only the
fallout from the dispute regarding her 2013 area chair appointment, and “did not mention any
protected characteristic.” Solomon, 2020 WL 1272617, at *15. Fordham’s policy requires, at the
very least, an allegation of a violation of state or federal law or university policies to trigger an
investigation. See SAC at ECF 205–6. Solomon’s October 2017 letter raised concerns about
promises allegedly made to her in connection to the 2013 area chair appointment, but—as the
Court recognized in its March 17 Opinion—that letter could not have reasonably put Fordham on
notice of any complaints of discrimination regarding the imposition of her Spring 2018 schedule.
Cf. Int’l Healthcare Exchange, Inc. v. Global Healthcare Exchange, Inc., 470 F. Supp. 2d 345,
357 (S.D.N.Y. 2007) (holding, in the retaliation context, that ambiguous complaints not setting
forth the alleged misconduct cannot put an employer on notice of allegations of discrimination).
The newly alleged attachments to Solomon’s December 18, 2017 email to Anastacia
Coleman do not change this analysis. As discussed, Solomon’s December 18 email focused on
her October 2017 letter to Freedman regarding her area chair appointment. However, Solomon
also attached PDFs of three prior email chains to this email, totaling about ten pages, showing
correspondence between Solomon and Pirson regarding the logistics of her Spring 2018 teaching
schedule. Id. at ECF 220–29. This attached correspondence shows that on December 11, 2017,
after over a month of discussion with Pirson about the schedule, Solomon for the first time
pointed out that her proposed Spring 2018 teaching assignments “further disadvantage me, a
female senior faculty member, to accommodate a male, who is not even a faculty member.” Id.
at ECF 229. In response to Solomon’s December 18, 2017 email containing these attachments,
Coleman asked for clarification, stating that “[i]t is not clear from [the attachments] as to what
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basis you are alleging you have been discriminated against . . . I am very willing to investigate
further but will need these clarifications from you.” Id. at ECF 231. In her December 21, 2017
reply to Coleman, Solomon does not address this attached correspondence with Pirson, but again
urged Coleman to inform her about the university’s response to her October 2017 letter about the
2013 Area Chair appointment.18 Id. at ECF 233.
Solomon’s inclusion of these email attachments, and Coleman’s response to them, also
does not raise an inference that her Spring 2018 schedule was discriminatory. Because the email
correspondence with Coleman overwhelmingly focused on Solomon’s complaints about the 2013
area chair termination, her inclusion of the attachments regarding her Spring 2018 teaching
schedule was ambiguous and reasonably caused Coleman to ask for clarification. Solomon’s
December 21 response, however, did not provide the requested clarification. Rather, Solomon
again invoked the October 2017 letter and 2013 area chair incident, and omitted further
discussion of her Spring 2018 schedule. While Solomon was not required to use any “magic
words” to invoke a complaint of discrimination, she was required to make clear the basis of her
complaint. See Ramos v. City of New York, No. 96 Civ. 3787 (DLC), 1997 WL 410493, at *2–3
(S.D.N.Y. July 22, 1997) (employer was not on notice of a complaint of discrimination when
plaintiff hoped that the employer “pick[ed] up the gist” of a complaint of general mistreatment).
She did not do that regarding the Spring 2018 teaching schedule, and did not provide clarification
when given the opportunity. Thus, Solomon fails to allege that Fordham’s purported failure to
investigate raises an inference of discrimination regarding her Spring 2018 course schedule.
18
The December 21 email also references an unspecified 2014 correspondence between Solomon and Coleman, and
a different set of complaints lodged by Klotz in 2016. See ECF 233.
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4.
Other Allegations of Disparate Treatment
Solomon makes several other allegations of disparate treatment. First, she references the
experiences of several other professors who were dissatisfied with their assignments teaching
undergraduates or teaching in the Bronx, all of whom were “either older, female, or Jewish, or a
combination.” SAC at ¶ 304; see also ¶¶ 305-311. However, many of these allegations are too
conclusory from which to draw any inferences as to Solomon’s treatment—for example, she
notes that Professor Edmond Weiss left Fordham “after his working conditions were changed to
intolerable” without specifying how those conditions changed. Id. at ¶ 309. Finally, none of
these anecdotes show that these professors were subjected to the same type of adverse treatment
that she alleges: a “material increase in [their] responsibilities without additional compensation.”
See Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 88 (2d Cir. 2015).
Solomon also argues that male area chairs have a culture of secrecy, and have “kept
information secret about courses, programs, etc.” Pls. Opp. at 17. However, these allegations
are too conclusory for the Court to assess whether any of Fordham’s alleged actions constitute a
“departure from procedural regularity” so as to “raise a question as to the good faith” on
Fordham’s part. See Zahorik v. Cornell Univ., 729 F.2d 85, 93 (2d Cir. 1984). For example,
Solomon does not allege the substance of Fordham’s policies for sharing relevant information
about courses or programs, or allege facts showing that analogous information was given to
similarly situated individuals outside of Solomon’s protected classes but hidden from her.
Thus, Solomon fails to sufficiently allege facts that plausibly show her Spring 2018
teaching schedule was discriminatory.
IV.
Unequal Pay Claim
Solomon also brings claims under the federal Equal Pay Act, as well as the ADEA and
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Title VII, alleging that she is not paid the same as her colleagues for equal work. “[T]o prove a
violation of the EPA, a plaintiff must demonstrate that (1) the employer pays different wages to
employees of the opposite sex; (2) the employees perform equal work on jobs requiring equal
skill, effort, and responsibility; and (3) the jobs are performed under similar working conditions.”
E.E.O.C. v. Port Auth. of N.Y. & N. J., 768 F.3d 247, 254–55 (2d Cir. 2014) (internal quotation
and alterations omitted). Courts analyze equal pay claims under the ADEA and Title VII
similarly to those brought under the EPA. See, e.g., Talwar v. Staten Island Univ. Hosp., 610 F.
App’x 28, 30 n.2 (2d Cir. 2015).
In this Court’s March 17 Opinion, it found that Solomon had pleaded two comparators
with specificity for her EPA claim: Hollwitz and Pirson. See Solomon, 2020 WL 1272617 at
*13. However, the Court found that Solomon had not sufficiently alleged that Hollwitz and
Pirson’s job content—as opposed to job title or description—was similar to her own. Id. (citing
Chepak v. Metropolitan Hospital, 555 F. App’x 74, 77 (2d Cir. 2014).
Solomon alleges no new facts to cure that deficiency here.19 Moreover, for the reasons
stated in Section III.A, supra, her citations to the Fordham Statutes do not suffice to show that
her job content was substantially similar to that of Hollwitz or Pirson. Rather, her argument that
all tenured faculty are similarly situated because they are subject to Fordham’s faculty statutes is
quite similar to the argument rejected by the Second Circuit in E.E.O.C. v. Port Auth. of N.Y. &
N. J., 768 F.3d 247 (2d Cir. 2014). There, the E.E.O.C.’s argument that “an attorney is an
attorney is an attorney” was insufficient to support an Equal Pay Act claim when there were no
allegations that different Port Authority attorneys had the same job duties. Id. at 257. The court
19
In SAC ¶ 237, Solomon alleges that two younger male professors made more than her, citing their 2017 and 2018
salaries. However, she does not include their names, or allege any specific job duties or responsibilities of these
professors beyond a statement that their jobs required “equal skill, equal effort and equal responsibility.” This is
insufficient to state a claim without more factual support.
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similarly found it irrelevant that Port Authority attorneys who were paid differently were subject
to the same job code and “broad [evaluative] criteria,” because general evaluation standards are
“peripheral to an EPA claim.” Id. at 258. The same is true here with regard to the Fordham
statutes. Moreover, as described in Section III.A., supra, the SAC contains allegations
suggesting that Pirson and Hollwitz’s respective job duties were different from Solomon’s. See
SAC at ¶¶ 219–20; 232.
V.
Hostile Work Environment
To plead a claim for hostile work environment under Title VII, a plaintiff must allege that
she was subject to harassment that was “sufficiently severe or pervasive to alter the conditions of
[her] employment and create an abusive working environment,” and “that a specific basis exists
for imputing the objectionable conduct to the employer.” Alfano v. Costello, 294 F.3d 365, 373
(2d Cir. 2002) (internal citation and quotation marks omitted). The plaintiff must show that the
workplace was “so severely permeated with discriminatory intimidation, ridicule, and insult that
the terms and conditions of her employment were thereby altered.” Id.
In its March 17, 2020 Opinion, the Court identified seven allegations on which Solomon
based her hostile work environment accusations. Solomon, 2020 WL 1272617, at *14.
However, it determined that events occurring before March 2017 were barred by the Title VII
and ADEA statutes of limitations. Id. In her SAC, Solomon pleads additional events that the
Court construes as being alleged in support of her hostile work environment claims: the 2013
comments from Freedman that “we all deal with our children in this way” and that Solomon had
“strong opinions” about the 2013 Area Chair decision. See SAC ¶¶ 259–61.
However, these comments occurred in 2013, so they are also time-barred. Moreover, the
Court has already found that the events surrounding her 2013 Chair Termination Hearing and her
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timely-brought hostile work environment allegations were “not related and therefore do not form
a single [hostile work] environment” for the purposes of tolling the statutes of limitations.
Solomon, 2020 WL 1272617, at *14 n.14. Solomon’s allegations thus add more detail to her
account of the 2013 hearing, but they do not change the fundamental problem that this hearing
occurred years before the applicable limitations period.20 Solomon’s hostile work environment
claim is therefore dismissed.
VI.
RETALIATION
Solomon argues that she was retaliated against in violation of Title VII and the ADEA.
To properly allege retaliation, Solomon must plead four elements: “(1) participation in a
protected activity; (2) that the defendant knew of the protected activity; (3) an adverse
employment action; and (4) a causal connection between the protected activity and the adverse
employment action.” Lenzi v. Systemax, Inc., 944 F.3d 97, 112 (2d Cir. 2019) (internal quotation
marks and citation omitted).
The Court previously determined that the first action for which she was plausibly entitled
to protection from retaliation under Title VII and the ADEA was her December 18, 2017 email to
Anastacia Coleman. See Solomon, 2020 WL 1272617, at *15. The Court found, however, that
none of the events occurring after this email constituted adverse employment actions for the
purposes of the civil rights laws. Id. at *15–16. Solomon now alleges an additional ground for
retaliation: the loss of her paid benefits while she went on unpaid leave for the Spring 2020
20
Even if these claims were timely, they would not rise to the level of a hostile work environment. A plaintiff
alleging discrete incidents in support of a hostile work environment claim must “demonstrate either that a single
incident was extraordinarily severe, or that a series of incidents were sufficiently continuous and concerted to have
altered the conditions of her working environment.” Alfano, 294 F.3d at 374 (citation and quotation marks omitted).
As described in Section III.A., supra, while Freedman’s comments could be interpreted as rude and disrespectful,
they are also somewhat ambiguous and Court cannot find that they were so severe as to state a hostile work
environment claim on their own. Moreover, the lack of additional related hostile work environment allegations
between 2013 and 2016 undermines any inference that these comments were part of a “sufficiently continuous and
concerted” pattern of similar incidents. Id.
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semester. See SAC ¶ 312.
Solomon alleges that on February 1, 2020 Fordham stopped payment of her healthcare
premiums, forcing her to pay for coverage through COBRA for terminated employees. Id. ¶ 315.
She alleges that this occurred in response to her protected activities, including her January 2018
EEOC Complaint and continuing litigation in this case. She alleges that her coverage was
removed just two days after she appeared in this Court for a hearing on her motion to compel.
Id. ¶ 319.
There is no question that a material reduction in benefits could qualify as an adverse
employment action. See Miksic v. TD Ameritrade Holding Corp., No. 12 Civ. 4446 (AJN), 2013
WL 1803956, at *3 (S.D.N.Y. Mar. 7, 2013). Fordham moves to dismiss on the ground that this
change in benefits did not plausibly occur in retaliation for any protected action, but rather was
done pursuant to the applicable Fordham statutes following Solomon’s decision to take a second
consecutive semester of unpaid leave. Even after drawing all inferences in Solomon’s favor, she
fails to adequately allege that this change in benefits was retaliatory, because the facts alleged
support Fordham’s account.
In December 2019, Solomon emailed Pirson, requesting that an undergraduate course be
removed from her Spring 2020 teaching schedule. SAC at ECF 269–70. She offered to teach
three classes in Fall 2020 instead, and later suggested that she be granted a course release. Id. at
267. Pirson’s response to this email is not attached to the SAC, but on December 20, 2019,
Solomon wrote to Fordham president McShane and Provost Dennis Jacobs to inform them she
“will take Leave without Pay for the Spring 2020 semester, instead of the untenable teaching
schedule proposed.” Id. at ECF 265. Vice Provost Jonathan Crystal responded on behalf of
Fordham on December 23, 2019, writing that the university would “honor [her] request for
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unpaid leave but will not cover the cost of medical benefits during the leave.” Id. at ECF 253.
In support of Fordham’s position, Crystal stated that the Fordham statutes require leaves
of absence to be approved by the Provost. Id. He noted that “unpaid leaves, with benefits, will
be granted only when the leave is taken for faculty development purposes for ‘study and
research’ or ‘when deemed to be in the interest of the University.’” Id. (citing Fordham Statute §
4–05.10(b)). He declined to deem Solomon’s leave as “in the interest of the University” because
“it would certainly have been our preference for you to have returned to teach rather than to be
on leave,” thus rendering her ineligible for unpaid leave with benefits under Fordham Statute §
4–05.10(b). Id. Solomon replied on January 2 that she “want[ed] to teach in Spring 2020” but
that she would not agree to teach the undergraduate course. Id. at ECF 261. Crystal replied,
stating that when faculty are on leave for one semester, as Solomon had been in Fall 2019, “the
University’s policy is that the faculty member will teach three courses in the other semester of
that academic year.” Doc. 82-1, Ryan Aff. Ex. A, at 1. He reiterated that the university would
not permit her to teach one course or to go on unpaid leave with benefits. Id.
With this context, it is clear that Fordham’s termination of her paid benefits was made in
response to Solomon’s informed decision to take unpaid leave without benefits, not her activity
in this case or any other protected activity leading up to it. 21 Solomon cites no facts or authority
showing that Fordham was obligated to either grant her a course reduction or drop the
undergraduate course, nor does she allege that her benefits would still have been terminated had
she agreed to teach during Spring 2020. Moreover, while Solomon cites the fact that her
To the extent that Solomon alleges that Fordham’s request that she teach an undergraduate course in Spring 2020
was itself retaliatory, this fails to state a claim for the same reason her FLSA retaliation claim was dismissed in the
March 17 Opinion: This schedule was no more onerous than the past two proposed course loads previously
assigned to her. See Solomon, 2020 WL 1272617, at *16.
21
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COBRA election form was received a few days after a hearing in this case, the record shows that
she had been warned as early as May 2019 about the potential discontinuation of Fordham’s paid
benefits in the event she went on another unpaid leave. See SAC at ECF 259. Indeed, Crystal
informed her on December 23, 2019 and January 9, 2020 that Fordham’s human resources
department would be providing details about continuation of coverage through COBRA. See
SAC at 266; Doc. 82-1 at 2. The fact that she received an election form thereafter is merely
consistent with Fordham’s representation in this respect. These facts undercut any inference that
her discontinuation of paid benefits was done in retaliation for her motion to compel production
in this case, or any other protected activity.
Solomon also argues that Fordham’s statutes permitted it to pay for her benefits during
this time. See Pls Br. at 4 (citing Appendix A-18 to the Fordham statutes, stating that faculty on
unpaid leave not for faculty development purposes “may maintain coverage on the University
life insurance, long-term disability and medical plans”) (emphasis in original). While the
statutory text does not explicitly prohibit Fordham from covering the cost of her benefits, it also
does not require Fordham to do so. Here, however, exhibits to the SAC show that Fordham’s
customary policy for faculty in such circumstances, consistent with Appendix A-18, was to
permit continuation of coverage “through participation in COBRA, which requires the employee
to pay the full premium . . .” See SAC at ECF 259. There is no basis for the Court to infer that
Fordham’s adherence to its customary policy in this situation was discriminatory. This is
particularly true given that, in May 2019, Fordham agreed to pay for Solomon’s benefits during
her Fall 2019 unpaid leave as “an exception to the statutory rules,” but with the explicit warning
that “[she] should not assume that the University will continue to grant [her] unpaid leave with
paid benefits in the future.” Id. Thus, the available evidence does not support the inference that
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Fordham’s behavior was retaliatory, or that it has enforced its policies disparately as applied to
Solomon.22
VII.
NEW YORK STATE LAW CLAIMS
Courts consider “traditional ‘values of judicial economy, convenience, fairness, and
comity’” in choosing to exercise supplemental jurisdiction over remaining state law claims when
all claims providing for original jurisdiction have been dismissed. See Kolari v. N.Y. Presbyterian Hosp., 455 F.3d 118, 122 (2d Cir. 2006) (quoting Carnegie-Mellon Univ. v. Cohill,
484 U.S. 343, 350 (1988)). When all federal claims have been dismissed before trial, as is the
case here, these factors generally weigh in favor of the dismissal of state claims. Id. Solomon’s
supplemental New York state law claims are therefore dismissed.
VIII. FUTURE PLEADINGS
The foregoing claims are dismissed without prejudice because their defects are not
“substantive” or “incurable.” Cf. Larkem v. Dep’t of Educ., No. 17 Civ. 7017 (ER), 2018 WL
1959555, at *6 (S.D.N.Y. April 23, 2018) (dismissing Title VII claims with prejudice because
plaintiff committed the substantive and incurable error of failing to file an EEOC charge).
To amend her complaint again, however, Solomon must comply with Federal Rule of
Civil Procedure 15(a)(2), which requires her to obtain either leave from the Court or the consent
of all opposing parties. As a general rule, leave to amend should be freely granted, and in the
case of pro se plaintiffs in particular, the courts “should grant leave to amend if a ‘liberal
reading’ provides ‘any indication that a valid claim might be stated.’” Larkem, 2018 WL
1959555, at *5 (quoting Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000)). But the Court
22
Solomon does not specify whether she repleads a retaliation claim under the FMLA. To the extent she does, it is
dismissed for the same reasons discussed in this subsection.
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must be assured that she is likely to state a claim before granting leave. See TechnoMarine SA v.
Giftports, Inc., 758 F.3d 493, 505 (2d Cir. 2014) (“A plaintiff need not be given leave to amend
if it fails to specify . . . to the district court . . . how amendment would cure the pleading
deficiencies in its complaint.”). Accordingly, if Solomon seeks leave of the Court to amend, she
must attach a proposed Third Amended Complaint and concisely explain how she has addressed
the defects identified in this Opinion.
IX.
CONCLUSION
For the foregoing reasons, Fordham’s motion to dismiss the Second Amended Complaint
is GRANTED. The claims therein are dismissed without prejudice. If Solomon wishes to file a
Third Amended Complaint, she must, no later than February 1, 2021, move for leave to amend or
obtain written consent from all opposing parties, in accordance with Federal Rule of Civil
Procedure 15(a)(2). In seeking leave to amend, Solomon must provide a copy of her proposed
Third Amended Complaint and a concise explanation of how she has addressed the defects
identified in this Opinion and Order.
If Solomon chooses to move to file a Third Amended Complaint, discovery will continue
to be stayed until Fordham answers this complaint or the Court denies a motion to dismiss it.
The Clerk is respectfully directed to terminate docket numbers 70 and 74.
It is SO ORDERED.
Dated:
December 29, 2020
New York, New York
Edgardo Ramos, U.S.D.J.
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