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 OF APPROVED BASKETBALL 

OFFICIALS, BOARD 193, COLONIAL VALLEY 

CONFERENCE, 

NEW JERSEY STATE INTERSCHOLASTIC ATHLETIC 

ASSOCIATION,

FRED DUMONT, in his official 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 Jersey 
2

(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 14, 2013) 

David Zatuchni [ARGUED]

Zatuchni & Associates

Lambertville, NJ 08530

Attorney for Appellant

Anne P. McHugh

Andrew L. Watson [ARGUED]

Pellettieri, Rabstein & Altman

Princeton, NJ 08543

Attorney for Appellees International

Association of Approved Basketball

Officials Board 193, International 

Association of Approved Basketball

Officials and Fred Dumont

Arnold M. Mellk

Goldberger & Goldberger

Clifton, NJ 07015

Attorney for Appellees

International Association of Approved

Basketball Officials, Board 193 and

International Association of Approved 
3

Basketball Officials

Kellie A. Allen

Joseph L. Turchi [ARGUED]

Timothy J. Schipske

Salmon, Ricchezza, Singer & Turchi

Philadelphia, PA 19103

Attorney for Appellee International 

Association of Approved

Basketball Officials

Gregory J. Giordano

Casey R. Langel [ARGUED]

Lenox, Socey, Formidoni, 

Giordano, Cooley, Lang & Casey

Lawrenceville, NJ 08648

Attorney for Appellees

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. Carroll

John E. Collins

Parker McCay
4

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When the Defense Department rescinded the ban 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 

closed 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 employment1discrimination 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 Jersey Law 

Against Discrimination, N.J. STAT. ANN. § 10:5-1, et seq.

(“NJLAD”), because she has been excluded from 

 

1 Title VII and Title IX prohibit discrimination based on sex. 

The District Court used “gender” and “sex” interchangeably, 

as do we.
5

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 and ordered the case 

closed. Covington appealed.

I.

Covington brings her 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 

(“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 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 Hamilton 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 employment 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 principal. 

The essence of Covington‟s claim is 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‟ 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 referees assigned to 

boys‟ varsity games, none 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 policy, Covington alleges a 

pattern and practice of discrimination. The District Court 

did not address Covington‟s allegations of discrimination 

on the merits, instead dismissing on other grounds.

 

3

The issue of whether Covington was not assigned to boys‟ 

games due to her qualifications or for an illegitimate 

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 stated that Covington was only 

assigned to boys‟ regular season varsity games after this 

lawsuit was brought. 

4

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.
7

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 

that Covington 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. 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 defendants liable under Title VII. The Court also 

declined to exercise supplemental jurisdiction over the 

state law claims.

The District Court cited Bell Atlantic Corp. v. 

Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 

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

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 standards, “[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 detail 
8

the facts upon which he bases his claim.” Id. at 555 n.3 

(quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)) 

(emphasis omitted). The pleading standard “is not akin 

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 has to state a “plausible 

claim for relief.” Iqbal, 556 U.S. at 679. 

It appears that counsel who filed the original 

complaint relied for the plausibility of its claim of gender 

discrimination on the success of a similar claim in 

Kemether v. Pennsylvania Interscholastic Athletic 

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

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 

original complaint, the District Court did not conceal its 

disrespect for the Kemether opinion. 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 Kemether in the Eastern 

District of Pennsylvania. 

II.

Covington, like Kemether, alleges violation of 

Title VII and Title IX. The District Court had 

jurisdiction over the Title VII and Title IX claims 

pursuant to 28 U.S.C. § 1331 and jurisdiction over the 

state law claims pursuant to 28 U.S.C. § 1367. We have 
9

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, 117 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 

discriminate 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 opportunities . . . 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 Covington‟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 discriminate. 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 to 
10

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. 

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 factors 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 

plaintiff: 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). Because 

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 principal indicia 

of an employer-employee relationship, we hold that

Hamilton may fairly be identified as Covington‟s 

employer.

5

 

5At 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 

schools in New Jersey. It controls the post-season 

tournaments, directly assigns officials to post-season 

games, and pays the referees for their work in the postseason. Officials who are chosen for post-season 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 while 

officiating. Officials wear a uniform prescribed by 

NJSIAA, which identifies them as NJSIAA officials. It 

follows from the foregoing that at this preliminary stage, 

we accept Covington‟s claim that NJSIAA is liable as an 

employer for post-season games. 

Our 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, we reject Covington‟s 

allegation that CVC is liable as her employer 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 without compensation to procure 
12

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 

has adequately pled an employment relationship with 

Hamilton. 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 acts of the agent.‟” 

AT& 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 authority. “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 

agent so to act.” Restatement (Third) of Agency § 2.01 
13

(2006). Vicarious 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)). 

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, 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. IAABO, which is a worldwide 

organization, provides curricula 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 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. 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 allege 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 give Covington an 

opportunity to provide more facts as to her claim against 

Hamilton, Board 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 

discrimination had actual knowledge of the discrimination. 

See Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 290 

(1998).