PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE

THIRD CIRCUIT

________

No. 11

- 3096

_________

TAMIKA COVINGTON

,

Appellant

v.

INTERNATIONAL ASSOCIATION OF APPROVED BASKETBALL OFFICIALS, INTERNATIONAL
ASSOCIATION O F APPROVED BASKE TBALL
OFFICIALS

, BOARD 193, COLONIAL VALLEY

CONFERENCE,
NEW JERSEY STATE INTERSCHOLASTIC ATHLETIC

ASSOCIATION,
FRED DUMONT

, in his o fficial and individual capacity

,

HAMILTON SCHOOL DISTRICT

, HAMILTON TOWNSHIP BOARD OF EDUCATION

, and

JOHN DOES 1

- 10

v.

FEDERAL INSURANCE COMPANY

________

On Appeal from the United States District Court
for the District of New Jersey2 (D.C. No. 3

- 08

- cv

- 3639) District Judge: Honorable Garrett E. Brown, Jr.

_______

Argued: December 18, 2012

Before: MCKEE, Chief Judge

, SLOVITER, and VANASKIE, Circuit Judges

(Filed : March 1 4 , 2013 )

David Zatuchni [ARGUED]
Zatuchni & Associates Lambertville, NJ 08530 Attorney for Appellant

Anne P. McHugh
Andrew L. Watson [ARGUED] Pellettieri, Rabstein & Altman
Princ eton, NJ 08543 Attorney for Appellees International Association of Approved Basketball Officials Board 193, International
Association of Approved Basketball
Officials and Fred Dumont

Arnold M. M ellk Goldberger & Goldberger Clifton, NJ 07015 Attorney fo r Appellee s International Association of Approved
Basketball Officials

, Board 193 and International Association of Approved3 Basketball Officials

Kellie A. Allen Joseph L. Turchi [ARGUED] Timothy J. Schipske Salmon, Ricchezza, Singer & Turchi
Ph iladelphia, PA 19103 Attorney for Appellee International Association of Approved
Basketball Officials

Gregory J. Giordano Casey R. Langel [ARGUED] Lenox, Socey, Formidoni,
G iordano

, Cooley, Lang & C asey Lawrenceville, NJ 08648 Attorney for Appel lee s Hamilton School District
and Hamilton Township
Board of Education

Steven P. Goodell [ARGUED] Herbert, Van Ness, Cayci & Goodell Lawrenceville, NJ 08648 Attorney for Appellee New Jersey
State Interscholastic Athletic Association

David W. Carrol l
John E. Collins Parker McCay4 Lawrenceville, NJ 08648 Attorney for Appellee Colonial Valley Conference

_________

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When the Defense Department rescinded the ban on women in combat positions, it effectively undermined the presumption of female inferiority that had for years
close d 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 J ersey Law Against Discrimination

, N.J. S TAT

. A NN

. § 10:5

- 1

, et seq. (“NJLAD ” ) , because she has be en excluded from

1 Title VII and Title IX prohibit discrimination ba sed on sex. The District Court used “gender” and “ sex ” interchangeably,
as do we.5 officiating at boys‟ high sc hool varsity basketball games.
Without hearing argument on the merits of Covington‟s central claim, t he 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 h i gh school athletics in New Jersey. She names as defenda nts the International Association of Approved Basketball Officials, Board 193 (“Board 193”)

, the principal defendant, which assigns
officials to officiate at regular sea son high school basketball games ; t he New Jersey State Interscholastic

A thletic Associa tion (“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 Hamilt on 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 e mployment agency; NJSIAA and IAABO are

2 Covington does not assert any federal claims against

Dumont.6 vicariously liable as Board 193‟s principals ; and CVC is vicariously liable as Hamilton‟s princip al.

The essence of Covington‟s claim is that Board 193 has not assigned her to officiate at boys ‟ regular

season game s because of its po licy discriminating against

wome n , 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 refere es assigned to boys‟ varsity games, n one 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 poli cy , Covington allege s a pattern and practice of discrimination. T he District Court
did not address Covington‟s allegations of discrimination
on the merits

, instead dismissing on other grounds

.

3 T he issue of whether Covington was not assigned to boys‟ games due to her qualifications or for an illegiti mate discriminatory reason is not before us today. However, we note that in oral argument, counsel for NJSIAA stated that
NJSIAA has never assigned female referees, including Covington, to boys‟ post

- season games. Furthermore, counsel for Covington stat ed that Covington was only assigned to boys‟ regular seas on varsity games after this
law suit was brought.

4 It is unlikely that any female will believe that there wasn‟ t a trace of discrimination if o nly males were uniformly selected
to referee the mo st desirable games

.7 The District Court granted judgment on the pleadings on Covi ngton‟s original Complaint, holding
that Covin gton did not adequately plea d her em ployment by Board 193 or IAABO as required by Title VII

, and that Covington did not allege that Hamilton received
f ederal 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 def endants li able under Title VII. The Court also declined to exercise supplemental jurisdict ion over the
state law claims.

The District Court cited Bell Atlantic Corp. v.

T w ombly , 550 U.S. 544 (2007)

, and Ashcroft v. Iqbal

, 556 U.S. 662 (2009), in support of its di smissal. 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

. Although it is established that under the Twombly
and Iqbal pleading standa rds, “[f]actual allegations must be enough to raise a right to relief above the speculative level,” Twombly , 550 U.S. at 555 , those cases make it
clear that a claimant does not have to “set out in detail8 the facts upon which he bases his claim.” Id . a t 55 5 n. 3 (quoting Conley v. Gibson

, 3 55 U.S. 41, 47 (1957)) (emphasis omitted) . The pleading standard “is not aki n to a „probability requirement ‟ ” Iqbal , 556 U.S. at 678 (quoting Twombly , 550 U.S. at 556) ; to survive a motion to dismiss, a complaint merely h as to state a “plausible
claim for relief.” Iqbal

, 556 U.S. at 679

.

It appears that counsel who filed the or iginal complaint relied for the plausibility of its claim of gender
discrimination on the success of a similar claim in Kemether v. Pennsylvania Interscholastic Athletic
Ass ociation Inc

. , 15 F. Supp. 2d 740 (E.D. Pa. 1998)

. I n 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 orig inal complaint, the District Court did not conceal its disrespect for the Kemether opinion. W e believe that opinion was entitled to more serious regard than it was given by the District Court in light of the similarit y of the structure of the sport in the two states

, the plaintiff s‟ claims, and the jury verdict for Kemether in the Eastern District of Pennsylvania.

II.

C ovington, like Kemether, alleges violation of
Title VII and Title IX. The District Court had jurisdiction over the Title VII and Ti tle IX claims pursuant to 28 U.S.C. § 1331 and jurisdiction over the state law claims pursuant to 28 U.S.C. § 1367. We have9 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 , 1 17 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
di scriminate 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 opportuni ties . . . 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 (1989). Instead of meeting Covin gton‟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 discriminat e. Presumably, they would be as free to discriminate on the basis of race as well as sex. There is nothing to suggest that Congress intended to10 exclude school sports officials from the ameliorative provision s of Title s VII and IX, which is what the
Distr ict 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 fac tors set forth in Nationwide Mutual

Insurance Co. v. Darden , 503 U.S. 318 (1992). We agree with the District Court when it reads our case law
to focus the employment relationship analysis on “the
level of control the defendant [ s ].

. . exerted over the pla intiff: which entity paid [the employees ‟ ] salaries, hired and fired them, and had control over their daily employment activities.” Covington v. Int’l Ass’n of Approved Basketball Officials , No. 08

- 3639, 2010 WL
3404977 , at *2 (D.N.J. Aug. 26, 2010). Bec ause Hamilton has some input as to which officials are assigned to each game, chooses the time, date, and location of the games, and pays the officials for their work during the basketball games, with payment for work generally understood as one of the pri ncipal indicia
of an employer

- employee relationship, we hold that Hamilton may fairly be identified as Covington‟s employer

. 5

5 At this stage of the litigation, we must accept as true all factual allegations in the SAC and all reasonable inferences
that can be drawn therefrom. See Graves , 117 F.3d at 726.11 Another defendant Covington lists as an employer,
NJSIAA

, is an athletic organization made up of high
sch ools in New Jersey. It controls the post

- season tournaments, directly assigns officials to post

- season
games, and pays the referees for t heir work in the post

season. Officials who are chosen for post

- season games must be dues

- paying members of NJSIAA, enter into agreements wit h NJSIA A, and sign liability waivers. NJSIAA provides the officials with li ability insurance. NJSIAA plays a role in training the officials and has the
power to ce rtify and register them

. Officials are required to abide by NJSIAA rules and regulations w hile officiating. Officials wear a uniform prescribed by NJSIAA, which identifies them as NJSIAA officials. It
f ollows from the foregoing that at this preliminary stage

,

w e accept Covington‟s claim that NJSIAA is liable as an employer for post

- season ga mes.

Our examination of Covington‟s allegations
related to CVC show s no similar relationship. CVC does not pay officials and does not contribute to their training or evaluation. Therefore, we reject Covington‟s allegation that CVC is liable as her emp loyer under Title

VII.

Looking to the final principal defendant , Board 193, Covington argues that it fits within the definition of an employment agency. An “employment agency” is
defined under Title VII as “any person regularly undertaking with or withou t compensation to procure12 employees for an employer or to procure for employees opportunities to work for an employer and includes an agent of such a person.” § 2000e(c). Board 193 does not deny that it comes within the Title VII definition of employment agency. However, it states that it cannot be liable because to be liable as an employment agency,
there has to be an employment relationship between Covington and Hamilton. As stated above, Covington
h as adequately pled an employment relationship with

Ha milton. Therefore, Board 193 is liable as an employment agency. In summary, Covington has plausibly alleged an employment relationship with Hamilton for regular season games

, with NJSIAA for
post

- season games , and with Board 193 as an employment agency.

Covington asserts that NJSIAA , IAABO, and CVC

are vicariously liable for the asserted Title VII violations

. “„An agency relationship is created when one party consents to have another act on its behalf, with the principal controlling and directing the ac ts of the agent.‟”

A T& T Co. v. Winback & Conserve Program, Inc. , 42 F.3d 1421, 1434 (3d Cir. 1994) (quoting Sears Mortg. Corp. v. Rose , 634 A.2d 74, 79 (N.J. 1993)). Vicarious liability due to an agency relationship can be based on the agent‟s actual au thority. “An agent acts with actual authority when, at the time of taking action that has legal consequences for the principal, the agent reasonably believes, in accordance with the principal‟s manifestations to the agent, that the principal wishes the

ag ent so to act.” Restatement (Third) of Agency § 2.0113 (2006). V icarious liability can also be based on apparent authority. “„Apparent authority arises in those situations where the principal causes persons with whom the agent deals to reasonably believe that the agent has authority‟ despite the absence of an actual agency relationship.”
Winback , 42 F.3d at 1439 (quoting Barticheck v. Fidelity
Union Bank/First Nat’l State , 680 F. Supp. 144, 148

- 49 (D.N.J. 1988)).

B oard 193 is a chapter of NJSIAA. NJSI AA provides training and evaluation requirements for Board
193 officials

, and requires t hem 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 b asketball
officials. However, we see 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. I AABO

, which is a worldwide organization

, provides c urricula and training materials for
basketball officials

. IAABO retains some authority to discipline Board 193 members. We gave Covington the opportunity to explain IAABO‟s connection with this
action bu t

, from the information provided, it appears that
i t 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. We therefore have no
basis to hold IAABO liable.14 Finally, Covington states there is an agency relationship between CVC and Hamilton. However, she does not adequately alleg e that CVC has control over Hamilton so as to be vicariously liable. 6

III.

For the reasons set forth, we will remand this matter to the District Court to gi ve Covington an opportunity to provide more facts as to her claim against
Hamilton

, B oard 193, and NJSIAA. We will affirm the District Court‟s dismissal of Covington‟s claim against
the CVC and IAABO.

6 Although Covington supplemented her allegations with respect to Title IX alleging Hamilton‟s receipt of federal funds, her Title IX claim is inadequate because she does not allege an official policy of discrimination at Hamilton and does not allege that an individual with authority to address the
discrimina tion had actual knowledge of the discrimination.
See Gebser v. Lago Vista Indep. Sch. Dist ., 524 U.S. 274, 290 (1998).