Covington v. International Association of Approved Basketball Officials, No. 11-3096; Third Circuit; opinion by Sloviter, U.S.C.J.; filed March 14, 2013. Before Judges McKee, Sloviter and Vanaskie. On appeal from the District of New Jersey, No. 3-08-cv-3639. [Sat below: Judge Brown.] DDS No. 25-8-9378 [14 pp.]

In her second amended complaint (SAC), Tamika Covington, who has been a basketball official in New Jersey and Pennsylvania for 10 years, alleges gender employment discrimination under Title VII of the Civil Rights Act of 1964, Title IX of the Education Amendments of 1972, and the New Jersey Law Against Discrimination (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.

Covington brings 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, 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 postseason 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, a school where Covington has officiated, and Fred Dumont, the president of Board 193. 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.

Covington claims 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’ postseason games for the same reason, and that the other defendants have assisted in that policy. Covington alleges a pattern and practice of discrimination.

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 she 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.

The district 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.

Held: Plaintiff’s claims alleging gender employment discrimination because she has been excluded from officiating at boys’ high school varsity basketball games are remanded to the district court as against defendants Hamilton Township School District, the International Association of Approved Basketball Officials, Board 193, and the New Jersey State Interscholastic Athletic Association.

In order to state a Title VII claim, Covington must allege an employment relationship with the defendants.

Because Hamilton has some input as to which officials are assigned to each basketball game, chooses the time, date and location of the games, and pays the officials for their work during the basketball games, the circuit panel holds that Hamilton may fairly be identified as Covington’s employer.

NJSIAA, an athletic organization made up of high schools in New Jersey, controls the postseason tournaments, directly assigns officials to postseason games, and pays the referees for their work in the postseason. Officials who are chosen for postseason games must be dues-paying members of NJSIAA, enter into agreements with NJSIAA, and sign liability waivers. NJSIAA provides the officials with liability insurance. NJSIAA plays a role in training the officials and has the power to certify and register them. Officials are required to abide by NJSIAA rules and regulations. Officials wear a uniform prescribed by NJSIAA, which identifies them as NJSIAA officials. The panel accepts Covington’s claim that NJSIAA is liable as an employer for postseason games.

Examination of Covington’s allegations related to CVC shows no similar relationship. CVC does not pay officials and does not contribute to their training or evaluation. Therefore, the panel rejects Covington’s allegation that CVC is liable as her employer under Title VII.

As to Board 193, because Covington has adequately pleaded an employment relationship with Hamilton, Board 193 is liable as an employment agency.

Covington asserts that NJSIAA, IAABO and CVC are vicariously liable for the asserted Title VII violations. Board 193 is a chapter of NJSIAA. NJSIAA provides training and evaluation requirements for Board 193 officials, and requires them to attend certain meetings, at which NJSIAA rules are reviewed. Covington has shown that NJSIAA has some control, particularly in training and evaluation, of the basketball officials. However, there is nothing to support Covington’s allegation that NJSIAA is vicariously liable for Board 193′s actions.

Covington also alleges that IAABO is a principal of Board 193. IAABO, which is a worldwide organization, provides curricula and training materials for basketball officials. IAABO retains some authority to discipline Board 193 members. Covington was provided the opportunity to explain IAABO’s connection with this action but, from the information provided, it appears that it has no connection with the assignment of officials to games. IAABO does not have sufficient control over Board 193 so as to be its principal. Therefore there is no basis to hold IAABO liable.

Finally, Covington states there is an agency relationship between CVC and Hamilton. However, she does not adequately allege that CVC has control over Hamilton so as to be vicariously liable.

The circuit panel remands this matter to the district court to give Covington an opportunity to provide more facts as to her claim against Hamilton, Board 193, and NJSIAA. The panel affirms the district court’s dismissal of Covington’s claim against the CVC and IAABO.

For appellant — David Zatuchni (Zatuchni & Associates). For appellees: International Association of Approved Basketball Officials Board 193, International Association of Approved Basketball Officials and Fred Dumont — Anne P. McHugh and Andrew L. Watson (Pellettieri, Rabstein & Altman); International Association of Approved Basketball Officials, Board 193 and International Association of Approved Basketball Officials — Arnold M. Mellk (Goldberger & Goldberger); International Association of Approved Basketball Officials — Kellie A. Allen, Joseph L. Turchi and Timothy J. Schipske (Salmon, Ricchezza, Singer & Turchi); Hamilton School District and Hamilton Township Board of Education — Gregory J. Giordano and Casey R. Langel (Lenox, Socey, Formidoni, Giordano, Cooley, Lang & Casey); New Jersey State Interscholastic Athletic Association — Steven P. Goodell (Herbert, Van Ness, Cayci & Goodell); Colonial Valley Conference — David W. Carroll and John E. Collins (Parker McCay).