Kemether v. Pennsylvania Interscholastic Athletic Ass'n

• Decision Date: 06 August 1998
• Docket Number: No. CIV. A. 96-6986.,CIV. A. 96-6986.
• Citation: 15 F.Supp.2d 740
• Parties: Noreen P. KEMETHER v. PENNSYLVANIA INTERSCHOLASTIC ATHLETIC ASSOCIATION, INC.
• Court: U.S. District Court — Eastern District of Pennsylvania

15 F.Supp.2d 740

Noreen P. KEMETHER v. PENNSYLVANIA INTERSCHOLASTIC ATHLETIC ASSOCIATION, INC.

No. CIV. A. 96-6986.

United States District Court, E.D. Pennsylvania.

August 6, 1998.

Reconsideration Denied September 3, 1998.

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COPYRIGHT MATERIAL OMITTED

David F. Abernathy, Julianne L. Peck, Drinker, Biddle & Reath, Philadelphia, PA, Terry L. Fromson, Women's Law Project, Philadelphia, PA, for Plaintiff.

Jeffrey F. Champagne, Elizabeth A. Dougherty, William M. Young, Jr., McNees, Wallace & Nurick, Harrisburg, PA, for Defendant.

MEMORANDUM AND ORDER

YOHN, District Judge.

Plaintiff Noreen Kemether brings this action under Title VII and Title IX of the Civil Rights Act of 1964, based on allegations that she suffered gender-based discrimination as a basketball official (i.e., referee), in her assignments to officiate high school interscholastic games. Defendant Pennsylvania Interscholastic Athletic Association, Inc. has filed a motion for summary judgment, and plaintiff has filed a motion for partial summary judgment. For the reasons set forth below, defendant's motion will be granted in part and denied in part, and plaintiff's motion will be denied.

STANDARD OF REVIEW

Under Fed.R.Civ.P. 56(c), summary judgment is to be granted upon motion of any party "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." A factual dispute does not preclude summary judgment unless it is material; that is, unless it might affect the outcome of the suit under governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

Where the parties present cross-motions for summary judgment, the court must consider each party's motion separately. Bencivenga v. Western Pa. Teamsters & Employers Pension Fund, 763 F.2d 574, 576 n. 2 (3d Cir.1985) (citing Rains v. Cascade Indus., Inc., 402 F.2d 241 (3d Cir.1968)). On each issue, "the evidence of the nonmovant is to be believed," and the court must draw all reasonable inferences in the nonmovant's favor. Anderson, 477 U.S. at 255, 106 S.Ct. 2505. The nonmovant nonetheless "must present affirmative evidence to defeat a properly supported motion for summary judgment," Anderson, 477 U.S. at 257, 106 S.Ct. 2505, and must do more than rest upon mere allegations, general denials, or vague statements. Trap Rock Indus., Inc. v. Local 825, 982 F.2d 884 (3d Cir.1992). Where the nonmovant bears the burden of persuasion at trial, the moving party may meet its burden with a showing "that there is an absence of evidence to support the nonmoving party's case." Celotex, 477 U.S. at 325, 106 S.Ct. 2548. However, "the mere existence of a scintilla of evidence in support of the [nonmovant]'s position will be insufficient." Anderson, 477 U.S. at 252, 106 S.Ct. 2505. Rather, "where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no `genuine issue for trial.'" Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

BACKGROUND

The following account is based upon substantially undisputed facts, except where noted.¹

Defendant Pennsylvania Interscholastic Athletic Association, Inc. ("PIAA") is a statewide athletic association, organized as a nonprofit membership corporation. (Def.'s App. Ex. D.) PIAA's membership comprises approximately 1,300 Pennsylvania high schools and junior high schools, both public and private. (Id.) PIAA's executive and administrative body is its Board of Control, which has "general control over all interscholastic athletic relations and athletic contests in which a member school of this association participates." (PIAA Const. art. VI, § 1, art. VIII, § 1(A).)

PIAA divides Pennsylvania into eleven districts, both for administrative purposes and for interscholastic competition in which district qualifiers advance to statewide championships. (Id. art. V, § 1; Rules and Regulations at 22-27.) Each district is administered by a district committee, elected by the member schools in that district. (PIAA Const. art. VIII.) Each district has at least one representative on PIAA's Board of Control. (Id. art. VI, § 2.) PIAA District I includes Bucks, Chester, Delaware, Montgomery, and Philadelphia counties. (Id. art. V, § 1.)

PIAA undertakes four major areas of responsibility: (1) establishing and enforcing eligibility rules for high school athletes, (2) organizing and operating playoffs and championships, (3) adopting playing rules for each sport, and (4) registering and training officials. (Cashman Dep. Ex. 6 at 4-5.) Pursuant to the last of these responsibilities, PIAA tests and registers officials in various sports, and charters local chapters of registered officials.

Plaintiff Noreen Kemether is a PIAA-registered basketball official. Kemether played basketball competitively in high school and college, where she was a member of a national championship women's team. She has continued to play in adult recreational leagues since college, and has coached basketball in camps, elementary schools, and high schools. Since the 1984-85 season, she has officiated basketball games at local schools and colleges that were not members of PIAA. Kemether passed PIAA's required examination, and in November 1990, she became registered with PIAA as a basketball official. She was then permitted to work in basketball games played by PIAA member schools.

Every PIAA-registered official is required to join a local chapter. One such chapter is the Delaware County Chapter of PIAA Basketball Officials ("Delco Chapter"), which Kemether joined upon registering with PIAA. Plaintiff alleges that the Delco Chapter "act[s] as PIAA's agent at the local level." (Amended Compl. ¶ 19.) Defendant contests that allegation, contending that the Delco Chapter is merely a "local group[] of individuals who are not members of PIAA." (PIAA Br. Mot. Summ. J. at 5.)

Officials are paid on a per-game basis by the member schools, pursuant to a standard "Contract for Officials Under P.I.A.A. Rules" approved by PIAA (see Fromson Decl. Ex. 7-9), which PIAA requires its member schools and its registered officials to use for each contest. In its constitution, PIAA asserts the power "to determine the method and the qualifications for the registration of officials; to determine their powers and duties; and to make and apply necessary penalties and forfeits for the control of such officials." (PIAA Const. art. VII, § 1(F).)

As a Delco Chapter official, plaintiff has officiated games between PIAA schools in two local leagues, one of which is the Del Val Athletic Association ("Del Val"). Del Val is an athletic league of eight high schools that regularly compete against each other. Del Val is organized as an unincorporated association, and includes seven public schools and one private school. The Del Val schools are members of PIAA, and are located in PIAA District I. (Fromson Decl. Ex. 5 at 1; Ruoff Dep. at 25-27.) During the regular basketball season, Del Val and its member schools arranged for PIAA-registered basketball officials from the Delco Chapter to officiate their interscholastic games.

An "assignor" is a person authorized and paid to select officials to officiate particular games. Harry Sheldrake was the assignor who assigned Delco Chapter basketball officials to games in the Del Val league. Sheldrake was a PIAA-registered official and a member of the Delco Chapter. In the 1996-97 season, James Faulkner succeeded Sheldrake as assignor and has continued through the current season. Del Val paid the assignors a fee for their services. (Fromson Decl. Ex. 11.) Plaintiff alleges that the Delco Chapter selected the assignors for Del Val, and that the assignors were agents of PIAA through the Delco Chapter. (Amended Compl. ¶ 27.) Defendant alleges that Delco Chapter merely recommended the assignors to Del Val, and gave them advice, but that the assignors were not controlled by the Delco Chapter. (Def.'s Mem. Opp. Summ. J. at 20.)

Despite plaintiff's request for boys' games and varsity games, Sheldrake assigned Kemether only to girls' junior varsity games during her first three seasons as a member of the Delco Chapter. (Sheldrake Dep. at 100-01, 237-44; Fromson Decl. Ex. 1.) Sheldrake and Faulkner have never assigned a female official to boys' varsity or junior varsity games, but only to ninth grade or younger boys' games. (Sheldrake Dep. at 143, 155, 235; Faulkner Dep. at 93, 119.) In the 1993-94 and 1994-95 seasons, after Kemether's complaint to the EEOC, Sheldrake assigned Kemether to at least one girls' varsity game, and three ninth grade boys' games. (Sheldrake Dep. at 145, 245-47; Fromson Decl. Ex. 1.) In the 1995-96 season and thereafter, Sheldrake and Faulkner assigned no games to Kemether. Plaintiff alleges that the assignors' failure to assign her to any games was in retaliation for filing and pursuing her EEOC complaint. (Amended Compl. ¶¶ 53, 56, 60, 62, 64.)

Officials were assigned to post-season play-off and championship games by a different method. (See, e.g., Fromson Decl. Ex. 10, 15-17, 44.) The assignor's role in directly selecting officials ends with the regular season, and does not extend to post-season district playoffs, state playoffs, and championships. PIAA does not dispute that it has general control and responsibility over championship events, including selecting officials for all post-season games. (See Rules and Regulations at 5.) On the basis of recommendations from coaches and assignors, PIAA District I selects officials for district playoffs. (Ruoff Dep. at 77, 81.) Two separate lists are maintained for officials wishing to be considered for boys' games or...