Covington v. Int'l Ass'n of Approved Basketball Officials, 11–3096.

• Decision Date: 14 March 2013
• Docket Number: No. 11–3096.,11–3096.
• Citation: 710 F.3d 114
• Parties: Tamika COVINGTON, Appellant v. INTERNATIONAL ASSOCIATION OF APPROVED BASKETBALL OFFICIALS, International Association of Approved Basketball Officials, Board 193, Colonial Valley Conference, New Jersey State Interscholastic Athletic Association, Fred Dumont, in his official and individual capacity, Hamilton School District, Hamilton Township Board of Education, and John Does 1–10 v. Federal Insurance Company.
• Court: U.S. Court of Appeals — Third Circuit

710 F.3d 114

Tamika COVINGTON, Appellant

v.INTERNATIONAL ASSOCIATION OF APPROVED BASKETBALL OFFICIALS, International Association of Approved Basketball Officials, Board 193, Colonial Valley Conference, New Jersey State Interscholastic Athletic Association, Fred Dumont, in his official and individual capacity, Hamilton School District, Hamilton Township Board of Education, and John Does 1–10

v.Federal Insurance Company.

No. 11–3096.

United States Court of Appeals, Third Circuit.

Argued: Dec. 18, 2012.

Filed: March 14, 2013.

David Zatuchni [Argued], Zatuchni & Associates, Lambertville, NJ, Attorney for Appellant.

Anne P. McHugh, Andrew L. Watson [Argued], Pellettieri, Rabstein & Altman, Princeton, NJ, Attorney for Appellees International Association of Approved Basketball Officials Board 193, International Association of Approved Basketball Officials and Fred Dumont.

Arnold M. Mellk, Goldberger & Goldberger, Clifton, NJ, Attorney for Appellees International Association of Approved Basketball Officials, Board 193 and International Association of Approved Basketball Officials.

Kellie A. Allen, Joseph L. Turchi [Argued], Timothy J. Schipske, Salmon, Ricchezza, Singer & Turchi, Philadelphia, PA, Attorney for Appellee International Association of Approved Basketball Officials.

Gregory J. Giordano, Casey R. Langel [Argued], Lenox, Socey, Formidoni, Giordano, Cooley, Lang & Casey, Lawrenceville, NJ, Attorney for Appellees Hamilton School District and Hamilton Township Board of Education.

Steven P. Goodell [Argued], Herbert, Van Ness, Cayci & Goodell, Lawrenceville, NJ, Attorney for Appellee New Jersey State Interscholastic Athletic Association.

David W. Carroll, John E. Collins, Parker McCay, Lawrenceville, NJ, Attorney for Appellee Colonial Valley Conference.

Before: McKEE, Chief Judge, SLOVITER, and VANASKIE, Circuit Judges.

OPINION

SLOVITER, Circuit Judge.

When the Defense Department rescinded the ban on women in combat positions, it effectively undermined the presumption of female inferiority that had for years closed opportunities for women in the military, in sports, and in other fields. In her Second Amended Complaint (“SAC”), Tamika Covington, who has been a basketball official in New Jersey and Pennsylvania for over ten years, alleges gender employment ¹ discrimination under 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., and the New Jersey Law Against Discrimination, N.J. Stat. Ann.. § 10:5–1, et seq. (“NJLAD”), because she has been excluded from officiating at boys' high school varsity basketball games. Without hearing argument on the merits of Covington's central claim, the District Court dismissed the complaint with prejudice against all defendants and ordered the case closed. Covington appealed.

I.

Covington brings her suit against various entities that have some role in high school athletics in New Jersey. She names as defendants the International Association of Approved Basketball Officials, Board 193 (“Board 193”), the principal defendant, which assigns officials to officiate at regular season high school basketball games; the New Jersey State Interscholastic Athletic Association (“NJSIAA”), the entity that controls and supervises post-season tournament games and assigns officials to referee those games; the International Association of Approved Basketball Officials (“IAABO”), the Colonial Valley Conference (“CVC”), the Hamilton Township School District (“Hamilton”), a school at which Covington has officiated, and Fred Dumont, the President of Board 193.² Covington alleges that Hamilton, CVC, and NJSIAA are liable under Title VII as her employers; Board 193 is liable as an employment agency; NJSIAA and IAABO are vicariously liable as Board 193's principals; and CVC is vicariously liable as Hamilton's principal.

The essence of Covington's claim is that Board 193 has not assigned her to officiate at boys' regular season games because of its policy discriminating against women, that NJSIAA has not assigned her to officiate at boys' post-season games for the same reason, and that the other defendants have assisted in that policy.³ Despite the absence or scarcity of women referees assigned to boys' varsity games, none of the defendants has conceded that it employed a policy to exclude females from a position officiating in boys' basketball tournaments and there is no document that so provides.⁴ In the absence of any written policy, Covington alleges a pattern and practice of discrimination. The District Court did not address Covington's allegations of discrimination on the merits, instead dismissing on other grounds.

The District Court granted judgment on the pleadings on Covington's original Complaint, holding that Covington did not adequately plead her employment by Board 193 or IAABO as required by Title VII, and that Covington did not allege that Hamilton received federal financial assistance as required to state a Title IX claim. Covington sought to remedy these deficiencies by filing the SAC. It is that document that is before us now.

The District Court then issued an Order to Show Cause, asking Covington to explain why the SAC should not be dismissed. Covington filed a reply, and the parties had extensive discovery. The Court dismissed the SAC without oral argument, holding that Covington had not adequately alleged facts sufficient to establish an employer-employee or other relationship necessary to hold defendants liable under Title VII. The Court also declined to exercise supplemental jurisdiction over the state law claims.

The District Court cited Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), and Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009), in support of its dismissal. However, those cases do not provide a panacea for defendants. Instead, they merely require that plaintiff raise a “plausible claim for relief.” Iqbal, 556 U.S. at 679, 129 S.Ct. 1937. Although it is established that under the Twombly and Iqbal pleading standards, “[f]actual allegations must be enough to raise a right to relief above the speculative level,” Twombly, 550 U.S. at 555, 127 S.Ct. 1955, those cases make it clear that a claimant does not have to “set out in detail the facts upon which he bases his claim.” Id. at 555 n. 3, 127 S.Ct. 1955 (quoting Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)) (emphasis omitted). The pleading standard “is not akin to a ‘probability requirement’ ” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (quoting Twombly, 550 U.S. at 556, 127 S.Ct. 1955); to survive a motion to dismiss, a complaint merely has to state a “plausible claim for relief.” Iqbal, 556 U.S. at 679, 129 S.Ct. 1937.

It appears that counsel who filed the original complaint relied for the plausibility of its claim of gender discrimination on the success of a similar claim in Kemether v. Pennsylvania Interscholastic Athletic Association Inc., 15 F.Supp.2d 740 (E.D.Pa.1998). In that case, the district court upheld a jury verdict for an excluded female official who officiated Pennsylvania high school basketball games. In dismissing Covington's original complaint, the District Court did not conceal its disrespect for the Kemether opinion. We believe that opinion was entitled to more serious regard than it was given by the District Court in light of the similarity of the structure of the sport in the two states, the plaintiffs' claims, and the jury verdict for Kemether in the Eastern District of Pennsylvania.

II.

Covington, like Kemether, alleges violation of Title VII and Title IX. The District Court had jurisdiction over the Title VII and Title IX claims pursuant to 28 U.S.C. § 1331 and jurisdiction over the state law claims pursuant to 28 U.S.C. § 1367. We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. This court reviews de novo a district court's dismissal of a complaint for failure to state a claim. See Graves v. Lowery, 117 F.3d 723, 726 (3d Cir.1997).

Title VII states, in part, that it is an “unlawful employment practice for an employer (1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual ... because of such individual's ... sex ... or (2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities ... because of such individual's ... sex.” 42 U.S.C. § 2000e–2(a) (emphasis added).

Congress enacted Title VII “for the ameliorative purpose of eradicating prohibited forms of discrimination from the workplace.” Martin v. United Way of Erie Cnty., 829 F.2d 445, 449 (3d Cir.1987). The intent of the statute is to “drive employers to focus on qualifications rather than on race, religion, sex, or national origin.” Price Waterhouse v. Hopkins, 490 U.S. 228, 243, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989). Instead of meeting Covington's discrimination allegations, the defendants argue they are not covered by the provisions of the antidiscrimination statutes because they are not encompassed within the definitions of the relevant statutes; in other words, they are free to discriminate. Presumably, they would be as free to discriminate on the basis of race as well as sex. There is nothing to suggestthat Congress intended to exclude school sports officials from the ameliorative provisions of Titles VII and IX, which is what the District Court's narrow reading of the relevant statutory language would accomplish.

In order to state a Title VII claim, Covington must allege an employment relationship with the defendants. To determine whether Covington is an employee, we look to the factors set forth in Nationwide Mutual Insurance Co. v. Darden, 503 U.S. 318, 112 S.Ct. 1344, 117 L.Ed.2d 581 (1992). We agree with the District Court when it reads our case law to focus the employment...