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April 24, 1995

UTICA COLLEGE OF SYRACUSE UNIVERSITY, JAMES SPARTANO, in his official capacity of Athletic Director, and MICHAEL SIMPSON, President of Utica College, Defendants


The opinion of the court was delivered by: FREDERICK J. SCULLIN



 This case is before the court on defendants' motion for summary judgment. Plaintiff, a former women's basketball coach at Utica College (the "College"), brought this action pursuant to Title VII, Title IX, and the Equal Pay Act, alleging that she was discriminated against based on her gender and that her employment contract was not renewed by defendants after she complained about the inequities between her job and that of the male basketball coach. Defendants, Utica College, James Spartano, College Athletic Director and Michael Simpson, College President, deny these allegations, and move for summary judgment on the grounds that: (1) plaintiff's claims under Title IX regarding the College's athletic program generally are not justiciable; (2) plaintiff cannot state a prima facie case of discriminatory termination, and can produce no evidence that she was discharged because of her gender; and (3) plaintiff's salary disparity claim fails because she cannot show she was paid less than similarly situated male employees.


 Plaintiff was hired to coach the women's basketball team at Utica College for the 1990-91 academic year. At the time of her hiring in 1990, plaintiff had a bachelor's degree and nine years of college basketball coaching experience at the Division III and junior college levels. *fn1" Def. 7.1(f) P 4. After accepting the position, plaintiff agreed to the terms of her contract with defendant James Spartano, the Athletic Director at the College. Under the terms of her original contract, plaintiff was employed for ten months, and received compensation of $ 25,000 for coaching basketball and performing teaching duties, with an additional $ 3,000 for coaching women's softball. These terms were consistent with the original offer submitted by Mr. Spartano to the plaintiff, she did not attempt to negotiate any changes in the compensation or benefits provided. Spartano Aff. P 8.

 Since 1987, the head coach of the men's basketball team at the College has been Edwin Jones. Mr. Jones was hired as men's head coach in 1987 after the College dropped from a Division I school to a Division III school. At the time of his appointment as head coach, Mr. Jones had a master's degree, and a total of fourteen years of college coaching experience, the last six coming as an assistant at the College when it was in Division I. Id. P 5. In 1987, Mr. Jones was given a multi-year contract with a starting salary of $ 23,000. *fn2" Id. By 1990, when plaintiff was hired, Mr. Jones had seventeen years coaching experience, including nine years at the College, and was making $ 32,500. In addition to this compensation, as part of his contract, Mr. Jones negotiated an arrangement whereby the College would pay for half of his auto insurance and provide him with a monthly auto allowance. This was a continuation of an arrangement that was in place while Mr. Jones had served as an assistant coach at the College, the purpose of which was to reimburse him for expenses incurred in connection with recruiting trips. Id. P 8.

 Plaintiff's contract was renewed in 1991, when her salary was increased to $ 25,765, and again in 1992, when her salary was increased to $ 29,916. In early March 1993, however, defendant Spartano approached defendant Simpson regarding plaintiff's performance of her coaching duties. Spartano Aff. P 13. At that time, defendant Spartano expressed concern about whether the College was going to be able to field a women's basketball team for the 1993-94 season. Id. P 45. This concern was based upon defendant Spartano's realization that only one member of the 1992-93 team would be returning to the team for the next season if plaintiff remained as coach. *fn3" Id. P 43. In addition to the dwindling number of returning players to the 1993-94 women's basketball team, the defendants were concerned with the fact that plaintiff had not been successful in recruiting new players for the team. Id. P 34.

 As early as January 1993, defendant Spartano met with plaintiff in regard to her recruiting efforts for the 1993-94 team. Spartano Aff. P 34; Harker Dep. 93-94. Another meeting was held in February, at which point defendant Spartano asked plaintiff to provide him with a list of players that she was recruiting for the 1993-94 team. Spartano Aff. P 35. Plaintiff ultimately provided him with a list of names of recruits and defendant Spartano proceeded to investigate the recruits on the list. Def. 7.1(f) P 14. As a result of his investigation, defendant Spartano found that the names on the list were primarily students who had expressed an interest in basketball on their Admissions materials rather than players who had been actively recruited by plaintiff, and that no high quality players had committed to play for the College. Id.; Spartano Aff. P 34-42.

 In addition to this perceived failure to adequately recruit, defendant Spartano also informed defendant Simpson of his concern over complaints that members of the 1992-93 team had regarding plaintiff's coaching. *fn4" Id. P 32-33, 45. One student, in particular, informed defendant Spartano that, as a result of her experiences on the 1992-93 basketball team, she did not intend to play basketball in 1993-94 and she wanted to transfer out of Utica College. Hyry Aff. P 20. Additionally, at the end of the 1992-93 season, defendant Spartano had the two full time coaches at the College, plaintiff and Mr. Jones, evaluated by the senior members of their respective teams. Def. 7.1(f) P 17. There were two senior members of the 1992-93 women's basketball team, both of whom submitted unfavorable evaluations of plaintiff. Def. Not. of Mot. Ex. L.

 As a result of her poor recruiting and bad rapport with her players, on April 5, 1993, defendant Spartano notified plaintiff that he had recommended that her contract not be renewed for the 1993-94 year by defendant Simpson. Spartano Aff. P 46-47. That same day, plaintiff met with defendant Simpson to discuss defendant Spartano's recommendation. Simpson Aff. PP 15-17 & Ex. O. Plaintiff claims that, during this meeting, she complained about the inequities that existed between the terms of her employment and those of Mr. Jones. Soon after this meeting, defendant Simpson had a meeting with defendant Spartano in which Simpson approved the recommendation that plaintiff's contract not be renewed. Simpson Aff. P 19. Defendant Spartano then met with plaintiff and notified her of defendant Simpson's decision. Spartano Aff. P 50. Thereafter, plaintiff submitted her letter of resignation. Harker Dep. D, pp. 46, 120.



 Under Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is warranted if, when viewing the evidence in the light most favorable to the non-movant, the court determines that there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Eastman Kodak Co. v. Image Tech. Servs., Inc., 504 U.S. 451, 112 S. Ct. 2072, 2077, 119 L. Ed. 2d 265 (1992); Commander Oil v. Advance Food Serv. Equip., 991 F.2d 49, 51 (2d Cir. 1993). The burden of showing that no genuine issue of material fact exists rests on the moving party. Donahue v. Windsor Locks Bd. of Fire Comm'rs, 834 F.2d 54, 57 (2d Cir. 1987). Where the moving party does not bear the ultimate burden of proof at trial, the summary judgment burden may be satisfied by pointing out the absence of evidence to support the non-movant's claims. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S. Ct. 2548, 2553, 91 L. Ed. 2d 265 (1986). Once the movant shows the absence of such evidence, the burden of persuasion shifts to the non-movant to show that the record contains sufficient evidence to establish each element of its case. Id., at 322, 106 S. Ct. at 2552.

 Where a non-movant's opposition to a motion for summary judgment consists of "merely . . . vaguely asserting the existence of some unspecified disputed material fact, or . . . mere speculation or conjecture," Western World Ins. Co. v. Stack Oil, Inc., 922 F.2d 118, 121 (2d Cir. 1991), offering specific factual assertions in memoranda of law or at oral argument, Rexnord Holdings, Inc. v. Bidermann, 21 F.3d 522, 526 (2d Cir. 1994), or relying on the pleadings themselves, Celotex, 477 U.S. at 324, 106 S. Ct. at 2553, the non-movant has not met its burden. To the contrary, a non-movant may only demonstrate the existence of elements essential to its case, which it would have the burden of proving at trial, through the use of affidavits, depositions, answers to interrogatories, or admissions. Fed. R. Civ. P. 56(e). A party who fails to use these evidentiary devices to "set forth specific facts showing that there is a genuine issue for trial," Id., has failed to demonstrate that the record contains a genuine issue of material fact, and thus, has not successfully resisted the entry of summary judgment.


 At the outset, it should be noted that plaintiff has failed to contest the majority of facts contained in defendants' Local Rule 7.1(f) statement of undisputed facts. Pursuant to that rule, once the defendants submitted their statement of uncontested facts, plaintiff was required to submit a reply statement which contained the material facts as to which she contends a genuine issue exists, including specific citations to the record. Local Rule 7.1(f). Plaintiff's failure to contest many of the facts contained in defendants' 7.1(f) statement entitles the court to deem the facts which are not controverted by plaintiff's 7.1(f) response to be admitted for purposes of deciding whether summary judgment is warranted. Id.; Thornton v. City of Albany, 831 F. Supp. 970, 979 (N.D.N.Y. 1993) (McCurn, J.). However, although entitled to rely on the defendants' 7.1(f) statement in deciding the present motion, the court finds that it need not do so since the facts alleged there are clearly supported in the record.


 Section 704 of Title VII of the Civil Rights Act of 1964 prohibits retaliatory actions against employees who oppose alleged discriminatory practices. Cosgrove v. Sears, Roebuck & Co., 9 F.3d 1033, 1038 (2d Cir. 1993). Section 704(a) of the statute provides

It shall be an unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment . . . because she has opposed any practice made an unlawful employment practice by this subchapter . . . .

 42 U.S.C. § 20003-3(a). In order to establish a prima facie case of retaliation under Title VII plaintiff must show: (1) she was engaged in protected activity which was known to the defendant, (2) she suffered an adverse employment action, and (3) there was a causal connection between the protected activity and the adverse employment action. Johnson v. Palma, 931 F.2d 203, 207 (2d Cir. 1991).

 The Supreme Court has held that the "establishment of the prima facie case in effect creates a presumption that the employer unlawfully discriminated against the employee." St. Mary's Honor Ctr. v. Hicks, 125 L. Ed. 2d 407, 113 S. Ct. 2742, 2747 (1993). This presumption then shifts the burden of production to the defendant to show that there were nondiscriminatory reasons for the adverse employment action. Stein v. N.Y.S. Dep't of Motor Vehicles, 841 F. Supp. 42, 48 (N.D.N.Y. 1993) (Scullin, J.), aff'd, No. 94-7803, slip op. (2d Cir. April 13, 1995). Once the defendant has met its burden and articulated legitimate, nondiscriminatory reasons for its actions, the burden shifts back to the plaintiff to prove that the asserted reasons are a pretext to cover up the true retaliatory motive. Id. This, then, is the framework through which the court must address these claims.

 In assessing whether plaintiff has established a prima facie case, a question arises as to whether the plaintiff engaged in any protected activity sufficient to satisfy the first element. While it is clear that voicing complaints about discriminatory employment practices are sufficient to constitute protected activity under Title VII, *fn5" there is some doubt as to whether plaintiff's actions even reached this level. Plaintiff contends that the decision not to renew her contract was made as a result of a meeting she had with defendant Simpson on April 5, 1993, in which she complained about the "glaring inequities between herself as the only female coach and the other head coaches, all male." Complaint P 14. This meeting occurred after plaintiff had been notified by defendant Spartano that he had recommended to defendant Simpson, whose decision it was, that he not renew plaintiff's contract for the 1993-94 academic year. Spartano Aff. P 47.

 When asked, at her deposition, to elaborate on the inequities between herself and other coaches which she allegedly raised at this meeting, plaintiff stated that she was only referring to inequities between herself and Ed Jones, the men's basketball coach. Harker Dep. at 52. Additionally, plaintiff could not recall what inequities she discussed with defendant Simpson at this meeting. Id. at 53. She testified that she did not request that defendant Simpson give her a multi-year contract like Ed Jones, nor did she discuss whether she could get a car allowance, or whether she could get more money for her basketball program. Id. at 54. The one subject that plaintiff definitely recalled discussing with defendant Simpson, was her belief that defendant Spartano was ...

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