The U.S. Court of Appeals for the Third Circuit reinstated a gender-discrimination case brought by a basketball referee after a New Jersey district judge dismissed her claims.
In reviving the referee’s claims, the panel reversed a decision of U.S. District Judge Garrett Brown of the District of New Jersey.
Writing for the three-judge appeals panel, Third Circuit Judge Dolores Sloviter set the context of the opinion in the recent move by the Department of Defense to end the ban on women serving in combat.
Tamika Covington, who has been a basketball referee for over a decade, brought a suit alleging that the statewide organization governing athletics in high schools, the local board of an international organization of referees, and a New Jersey high school discriminated against her by not assigning her to officiate at boys varsity basketball games.
"When the Defense Department rescinded the ban on women in combat positions, it effectively undermined the presumption of female inferiority that had for years closed opportunities for women in the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," Sloviter said in Covington v. International Association of Approved Basketball Officials.
Andrew Watson of Pellettieri, Rabstein & Altman, who represented the International Association of Approved Basketball Officials, took issue with the tone of the opinion, saying that the opening sentence reflected the tone of the oral argument. "It was the result this panel wanted to reach and they found a way to reach it," he said.
Chief Judge Theodore McKee and Judge Thomas Vanaskie were on the panel with Sloviter.
At oral argument, Watson told The Legal on Thursday, the judges interjected their own anecdotal evidence from the bench. It had been unlike any oral argument that he’d participated in before, he said.
David Zatuchni of Zatuchni & Associates, who represented Covington, had a different impression. They didn’t discuss anecdotal evidence, he said, but, rather, noted historical patterns.
Between the Third Circuit’s choice to issue the opinion as precedential and the sentiment expressed in some of the footnotes, Zatuchni said, the court seems to indicate that it wants to ensure that these kinds of cases are taken seriously and are heard.
"The merits have not been adjudicated," Zatuchni said, but he is looking forward to having the chance to present the factual record to the district court on remand.
Covington’s basic allegation is that the local body of the international organization of referees, called Board 193, hasn’t assigned her to referee boys regular-season games and the statewide organization hasn’t assigned her to referee their post-season games because the organizations have a policy of discriminating against women, according to the opinion.
However, the organizations haven’t conceded to working under that kind of policy and Covington hasn’t provided any documentation to prove her allegation, according to the opinion. Without a written policy, Covington alleged a pattern and practice of discrimination on the part of the organizations.
"It is unlikely that any female will believe that there wasn’t a trace of discrimination if only males were uniformly selected to referee the most desirable games," Sloviter said in a footnote.
Anne McHugh, who represented the International Association of Approved Basketball Officials with Watson, characterized the opinion as having "discrimination paranoia," which she described as "seeing discrimination under every rock, in every venue."
Here, McHugh said, Covington wasn’t assigned to the games because she wasn’t up to the task, not because she is a woman.
Since Covington’s Title VII claims hung on her ability to tether herself to each of the defendants as an employee, the bulk of the opinion examined those relationships.
Sloviter quoted the Third Circuit’s 1987 opinion in Martin v. United Way of Erie County, saying, "Congress enacted Title VII ‘for the ameliorative purpose of eradicating prohibited forms of discrimination from the workplace.’"
However, she said, the defendants argued that they can’t be held to the provisions of that statute 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," she said. "There is nothing to suggest that 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."
Sloviter also took note of the trial court’s treatment of an Eastern District of Pennsylvania opinion from 1998, on which Covington had relied. In the case captioned Kemether v. Pennsylvania Interscholastic Athletic Association, the court had upheld a jury verdict for a female official at Pennsylvania high school basketball games.
"In dismissing Covington’s original complaint, the district court did not conceal its disrespect for the Kemether opinion," Sloviter said. "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 [Noreen] Kemether in the Eastern District of Pennsylvania."
In his 2011 opinion dismissing the case, Brown said, "even if the Kemether decisions were procedurally relevant here — i.e., discussed the sufficiency of the relevant pleadings — the court notes the significant evolution of the Rule 8 pleading standards in the decade-and-a-half since the Kemether litigation apparently began."
"That pleading evolution (from Conley [v. Gibson] to Twombly and Iqbal), casts additional doubt upon the present-day viability of the very claims that appear to have been at issue in Kemether, and certainly erodes whatever persuasive force those decisions might once have had. In short, Kemether is not the law," he said.
Sloviter disagreed with Brown’s reading of the U.S. Supreme Court’s opinions in Bell Atlantic v. Twombly and Ashcroft v. Iqbal, which have heightened the pleading standards for plaintiffs.
"Those cases do not provide a panacea for defendants," Sloviter said, quoting from Iqbal. "Instead, they merely require that plaintiff raise a ‘plausible claim for relief.’"
(Copies of the 14-page opinion in Covington v. International Association of Approved Basketball Officials, PICS No. 13-0605, are available from The Legal Intelligencer. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information.) •