miss covington has what for regular season games has almost never been assigned to a man's bar city game of although she's well qualified to handle such games and they don't they don't claim she's not qualified that is like the school the school is a member of that conference along with other schools and that the conference in the schools won these games together it's actually that's the theory that i think they were brought under initially and that's the theory that i pursued theories of liability so we talked about the direct flight delivery for postseason games of the new jersey so c h but then we also brought in the new jersey association and i go the international under a principle agency theory for regular season games essentially that order one ninety three is an agent of those two associations the new jersey association and i go international with respect to the assignments of officials to regular season games that they live all under a principle agency relationship and that type of liability was found for the pennsylvania association in the kind of their  that they are they are the most directed and and the lie that i mean the the theory for the principal agency theory for the association and for member of a local area board in this case one ninety three converse lee in order to be a member of one ninety three she has to be a member of the posse you're focusing in on is there anything that you're alleging that ties i bowed to that international is liable as well because they're any extension of the locals an extension of international under certain circumstances yes because i mean there's certain aspects of control here where for example don't take the power to discipline any member of board when ninety three if board one ninety three suspends or it spells any member that member can appeal that to i bow the international so i both especially from my understanding takes responsibility for all training aspects it's a training organization and to be an official for war one ninety i'm up and we're trying to get that i think is why you know i mean leave aside the fact that women are discriminated against but you know within this this structure where is the specific point at which they say no women it's well it's from our standpoint it's with the individual who really control this is a question of control and who really has the control of i mean the as scientists are many it's not one person for border one ninety three there's it wasn't acting on behalf of the leagues or that he was specially paid by work being used to to to to to make assignments i mean let me take sure let me take the holmes case on and apply it at least with respect to the vicarious liability theory against the new jersey there's interscholastic athletic association right howard the a sign is here even some of the new three and board one ninety three is an end of the p r i of the association so that's the difference right in yost he wasn't an agent of any local board that was an agent are also employees for purposes of title sub we asked the court hold that we sufficiently at least alleged a plausible claim that the new jersey association is liable as a direct employer for postseason games and we also asked that the court supply hole that we have sufficiently played plausible claims against either and the new jersey association for regular season games under the agency principle und so title nine is against the school board itself entire library of discrimination by educational situations that obtain federal funding and we think that applies to the school board so the judge initially  the trial court judge initially dismissed the title nine claim on a prior complaint because there was no allegation that hamilton obtained federal funds we corrected that in they can i mean it's true that they used when they did three for assignments but they also have their own role to play they can request as an official's they can deny specific officials and you know from from our allegations that there's essentially as this is the principle of local one ninety three there are many problems with that theory the first is as you've already pointed out in the questioning of misters actually there isn't one allegation in the second man a complaint there wasn't any in the first another complaint or the original complaint asserting that i bow has any role whatsoever in the assigning of officials that simply does not it is a large organization with lots of ok the fact of the matter is i bow qualifies officials and i bow didn't qualify i was going to and did qualify many other female officials if they weren't qualified they couldn't serve in any capacity female or male and the courts have ruled in this court has ruled in a similar context that the international union can't be inferred to be the principal of a local union just because of the affiliation you have to look at the business of both and because she wasn't qualified is that right well i would i would assume that's correct your honor but i don't think that that is that the fence of some of the other defendants in the case that she wasn't qualified she qualified to be official  y puts that patch on her sleeve for my book you know where she wouldn't get any assignments at all i think the issue is why she selected over others if you really are more she did i don't remember reading evaluate officials as compared to others once they're qualified to be officials and that i was tops and so they're qualified they were patch on her sleeve and as it relates to the only simple as any rule at all as it relates to evaluation or assignment of officials i would also suggest that another analogy would be the n c a a the n c a a doesn't get sued in title seven full opportunity to come in and it's complete give a roadmap here's your free chance show us the facts here to keep these defendants in one ninety three is the as signer right that's correct have that information whether it be fair for us to infer that you generally did not have females assigned we're looking at the complaint and he's alleging that coming to his repeatedly complained about this were the only three fuses to appoint her voice into the might be a lot of issues a fact working round as to why that isn't and maybe she's the proverbial homer i don't know exactly and why wouldn't that be sufficient just on the knees unless we're back in the gold days of the ancient noticed beyond noticed needing something more specific in the quick even in gone time he said they were going there equipment provision of training again i think you have to have more than just two of those darden kellen factors here to show that there is a true employer employment relationship here where there is that level of control over the means and manner of the employment itself association we are a father once you three nonprofit corporation with our own independent bylaws rules and regulations our interaction with the state is that there is a state statute which permits public school districts join voluntary associations such as ours to help them regulate spores is are there also a state policy of no discrimination against women there is a obviously a policy yes  that so that its member schools when they host games when they contract with other schools or with their leagues for games can go to a group of officials and know that those officials are going to be qualified so that's that's underlying the underlying issue here where one ninety three is one of those groups where one ninety three is affiliated with ivo so they get their official training there are other such groups throughout the state in every sport in basketball there is an interesting situation because there are several associations which are so specifically women's associations women officials have congregated together to create their own officials association because they have been interest primarily in officiating girls games much of the too she may argue they than that because the door well that that that's what he says i don't think it there's any well played complaint that says that i and it's not true one ninety three is one of those groups that is is integrated it's not a strictly men's  games and we had litigation years ago by a group of women officials saying that the men were intruding on what they thought was their turf at that time but there was testimony from terrell parsons and she was asked the  person said was when asked that question she said we would love to keep more of them but they move up very quickly and if they are good but there's their fifty dollars the pay is the same well the paying college is better yes the paying college is better and that's where people would rather be the pay for women officials in new jersey is exactly the same as that for men whether they're officiating a boys game more and more you're always going to be you can visit in the range of seventy to ninety dollars again and then if you can get that for sitting and then and then if you can do a j v game before hand you can you can come out ok but all right i've got a red light now but i think  what i really wanted to say was that in terms of the n g s a there are two chief complaints against this one is that we are we are responsible for what board ninety three does in a agency capacity  second that we we ourselves discriminated because of our actions in the postseason and what i quickly want to say is that in terms of the agency argument that is lifted wholesale from the c case in other words and this is true she has said that but if you look at his pleadings in his second amended complaint he has pulled out of the chemical or case all of those facts that he thinks he can prove that would establish what he says is an agency relationship however there what what i'm here to say is that chemical is different and the p i and its organization is completely different well it was the conclusions whereby the court could say that there was sufficient evidence before the jury to conclude that the so that the board and the associate association were really one in the same for the purposes of assign now where we differ is first unlike in canada we have absolutely no policy written or otherwise precluding women from officiating boys games in pennsylvania there was that was the case in c effect we have an assignment function which we have delegated to them and which they then are doing our behalf however when you look at what the kemet are decisions about the way the officials associations are organized in pennsylvania different there their charters are assigned by the pennsylvania association pennsylvania so she she has the power to dissolve those entities it's as though they were part of that association  i a writes the rules and rules and regulations and bylaws of the association we do not says has assigned officials in certain circumstances there is no pleading and there's no which says n g s i is responsible under title seven for discrimination because it has systematically excluded women from the post season turn that that's it so the question is what systematic there is no fact it's pled that says how or why we have systematically excluded women now in in hemet or we knew they had a policy you can't you know don't don't evaluate women for boys games don't assign women to boys games we have no such policy and extensive process for identifying officials and that was it was described in discovery where there are people out looking for officials and making lists constantly of officials that they think are good recommendations from all of the boards throughout the state there are recommendations from schools and then there are also actual forms that these observers a source of a lot say helis any minority n looks perfectly qualified from my standpoint less than if i feel it officiating in the postseason is competitive just like just like that teams who make the postseason and his argument the employment relationship between my client misconduct and i'd like to add just an additional perspective in that regard when boiled down all the complaint says with regard to the employ relationship is that a handful in one thousand a year miss covington would be assigned to hamilton and some other schools she had the right to turn it turn those assignments down or not turn him down and show up when she showed up she would referee a everything else that's pled it is just summary it is it's conclusory and there's no meat to it the fact that somebody cuts a check i don't think on the face of the complaint should survive the thorough employer employee it anything that they would have that they'd presented summary judgment to survive that motion and i think it's important you asked a procedural question earlier just mckay you know should should the district court of converted this well he didn't convert it what he did was paragraphs one hundred three one hundred seven address my client and they are nothing more than naked bald assertions that hamilton was capable of reviewing referees and that they participated in colluded in a discriminatory policy with board one ninety three i don't say whether whether reviews were made of miss covington that were bad whether  we intentionally asked for miss covington said not be assigned to our games it's not clear that that we did anything discriminatorily other than that we discriminated and on the face of the complaint you didn't hire you didn't and board one ninety three it was the fact that the school also had and while in regular season yeah all schools can fill out a valuations of referees both good and positive  order of show cause but even on the on the face of the complaint all that's alleges that we were capable of doing about you ations they don't even go the next step to allege that we performed negative evaluations of female referees on purpose asian of the games with official works that the game takes place in our hosted at the schools that the schools do in fact the you wait the officials including miss covington the schools can determine whether they want to take the officials working for them or not alerting the signer general availability those are eight or nine factors specific facts that we allege in our complaint and those was precisely the same factors in the kind of the case as to why the court sustained the jur at what the court said what the dardenne factors that supported the jury verdict in that case and all of those factors are pled well plowed in this complaint because they have because they didn't allege that this school  from district hired required judge we said the third employer we mean hired i read that somewhere in the district court's opinion but i think that was really a question of semantics i why and those same factors the darden factors right have already been held all right by a jury and sustained by a judge to see to see a verdict of discrimination under title seven the only other point that i want to make is counsel made an argument that should have presented i guess does a deposition testimony and  woman to a men's basketball game for postseason games right the number of times that the board or the one ninety three has assigned women to men's gains for the regular season you can probably count on one