The Volokh Conspiracy
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Can Tenure Reviewers' Names Be Sealed in Employment Discrimination Lawsuit Filings?
No, says a district court at first; yes, it says six days later. Always good to check the docket for follow-up orders, if you have the time.
From EEOC v. Univ. of Miami, decided earlier this month by Judge Robert N. Schola, Jr. (S.D. Fla.):
In this employment discrimination case, the Plaintiffs Equal Employment Opportunity Commissions and Louis Davidson-Schmich allege that the University discriminated against Davidson-Schmich, a professor at the University, by paying her less than Dr. John Gregory Koger, another professor at the school…. During discovery, the University produced several documents regarding its salary recommendations and justifications for multiple faculty members, and documents regarding decisions to promote Davidson-Schmich and Koger.
In support of its motion for summary judgment, the University attached redacted versions of these documents, which it now seeks to file unredacted under seal (although the unredacted documents have not been filed and the Court has not reviewed them). …
The University moves to seal eleven documents which fall into the following categories: (1) salary analysis conducted by the University and salary information of current former tenure-track faculty members (non-parties), including performance assessments ("salary documents"); and (2) promotion and tenure files for Davidson-Schmich and Koger ("promotion and tenure documents"). With respect to the salary documents, the University argues that "publicly disclosing existing salary information for current faculty, the University could create a 'bidding war' for its professors." Also, that "these documents contain information regarding non-party professors to this case (beyond Dr. Davidson-Schmich and her alleged comparator, Dr. Koger), which should not have to be publicly disclosed simply because one member of the Department brought this lawsuit."
The University also contends that the promotion and tenure documents should be filed under seal to maintain the integrity of the promotion and tenure practice. The University explains that it solicits outside reviewers to opine on the quality of the candidate's research and that those recommendations are made with the expectation that they will remain anonymous….
With respect to the salary documents, the University argues that it would be at a competitive business disadvantage if the documents were disclosed as other universities may try to initiate a bidding war for professors. However, the University does not cite any binding authority allowing a trial court to seal salary information in an employment discrimination case due to potential business competition and has not sufficiently described the documents to allow the Court to make a determination of whether they should be sealed. [The court doesn't further discuss the non-party professors' privacy interests. -EV]
Likewise, the University's argument regarding the tenure and promotion documents is also unavailing. The integrity of the University's promotion and tenure process does not outweigh the public's common law right of access to judicial records. Indeed, without the benefit of reviewing the documents or an explanation of the process, the Court fails to see the importance of keeping the reviewer's identity or recommendations confidential. It is unclear whether these reviewers are also faculty members, whether it is an anonymous process, or what their interests in remaining anonymous are. Travelers Prop. Cas. Co. of Am. v. Barkley, No. 16-61768-CIV, 2017 WL 4875911, at *1 (S.D. Fla. June 2, 2017) (Altonaga, J.) (denying motion to seal documents in support of motion for summary judgment because the movant failed to explain the contents of the documents at issue and the privacy interests at issue or what injury will result); see also Regions Bank v. Kaplan, No. 8:16-cv-2867-T-23AAS, 2017 WL 11025768, at *2 (M.D. Fla. Dec. 11, 2017) (Sansone, J.) (denying motion to seal exhibits to summary judgment motion because "Defendants' blanket assertion that the subject exhibits contain confidential business or financial information is insufficient to show good cause for sealing the filings.")….
But six days later the court granted a motion for reconsideration, and allowed the tenure reviewers' names to be redacted:
On May 11, 2021, the Court denied in its entirety the University's motion to file certain exhibits under seal. In relevant part, the Court stated that the motion (and without the benefit of reviewing the unredacted documents at issue) did not show the University['s] interest in redacting the names of individuals involved in the promotion and tenure review process nor did it describe the process. The subject motion, which is unopposed, provides additional facts regarding that process and is supported by a sworn declaration.
Upon review of the new facts setting forth the University's interest in keeping those identities confidential, and considering that the parties agree those identities are not relevant for deciding the pending motion for summary judgment, the motion is granted. The University may redact only the names and employers of the third-party reviewers who provided confidential feedback during the promotion and tenure review process.
Which is a reminder: If you're relying on a federal district court case—especially one that isn't published in the print reporters—and you have the time, check the docket to see if the decision had been modified by a later decision, or even a later docket entry. Westlaw often doesn't show such amendments; and if you don't spot them, maybe the other side will, and you'll end up embarrassed.
