United States District Court, S.D. New York
April 27, 2004.
KEVIN MORRIS and OTHER UNNAMED INDIVIDUALS, Plaintiffs, -against- FORDHAM UNIVERSITY, Rev. Joseph A. O'Hare, President, Fordham University, Defendant
The opinion of the court was delivered by: CONSTANCE MOTLEY, Senior District Judge
MEMORANDUM OPINION & ORDER
Plaintiff Kevin Morris brings claims of sex discrimination, pursuant to
Title IX of the Education Amendments of 1972 ("Title IX"), 20 U.S.C. § 1681
et seq., and the Equal Pay Act, 29 U.S.C. § 206(d), as well as various
common law claims, against defendant Fordham University ("Fordham").
Plaintiff, a former Head Coach of Women's Basketball at Fordham
University, alleges disparate treatment and disparate impact in relation
to allegedly inferior resources and opportunities available for the
women's basketball team in comparison to the men's basketball team.
Plaintiff alleges that defendant subjected him to "disproportionate
funding for the women's basketball team, both individually (salary and
benefits), as a women's basketball coach, and collectively (assistant
coaches, equipment, uniforms, supplies, recruitment funds, team travel,
post-season opportunities, and tutoring)." Plaintiff alleges that "[i]n
violation of federal and state law," defendant "base[d] the Plaintiffs
salary, benefits, career development, and the funding of the women's
athletic programs (specifically the women's basketball team) on the
Plaintiff's gender and the gender of the student athletes Plaintiff
coached." Plaintiff also alleges that defendant breached a contract with
plaintiff by terminating him prior to the end date of his contract, and
that, by failing to provide plaintiff with a promised long term contract,
defendant committed fraud.*fn1 Finally, plaintiff alleges in his
complaint that, "[b]y virtue of the existence of a hosfile work environment," defendant breached the implied covenant of good faith
and fair dealing. Plaintiff seeks compensatory and punitive damages, as
well as injunctive relief, including "100% compliance with Title IX."
Plaintiff filed a complaint on January 24, 2003, and an amended
complaint on May 7, 2003. On June 13, 2003, defendant moved to dismiss
plaintiff's complaint, pursuant to Rule 12(b)(1) and Rule 12(b)(6) of the
Federal Rules of Civil Procedure. For the reasons that follow,
defendant's motion is granted in part, and denied in part.
Fordham is a Jesuit institution of higher learning located in New York
City. Fordham is a member of the National Collegiate Athletic Association
Division I and competes in the Atlantic 10 Conference in, among other
sports, women's and men's basketball. Plaintiff held the position of Head
Coach of Women's Basketball at Fordham from 1993 until in or about March
A. MOTION TO DISMISS STANDARD
On a motion to dismiss, a court must read the complaint generously, and
draw all inferences in favor of the pleader. Cosmas v. Hassett, 886 F.2d 8,
11 (2d Cir. 1989). The court must accept as true the material facts
alleged in the complaint. Grandon v. Merrill Lynch, 147 F.3d 184, 188 (2d
Cir. 1998). The court must not dismiss the action unless "`it appears
beyond doubt that the plaintiff can prove no set of facts in support of
his claim which would entitle him to relief.'" Cohen v. Koenig,
25 F.3d 1168, 1172 (2d Cir. 1994) (quoting Conley v. Gibson, 355 U.S. 41,
45-46, 78 S.Ct. 99, 102 (1957)); Sims v. Artuz, 230 F.3d 14, 20 (2d Cir.
2000). Thus, a plaintiff need only plead "`a short and plain statement of
the claim' that will give the defendant fair notice of what the
plaintiff's claim is and the grounds upon which it rests." Conley, 355
U.S. at 47 (quoting Fed.R.Civ.P. 8(a)(2)). This standard is applied in
employment discrimination lawsuits, where the complaint need not contain
specific facts establishing a prima facie case under the McDonnell
Douglas framework. Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512,
122 S.Ct. 992, 998 (2002). In deciding such a motion, the "issue is not
whether a plaintiff will ultimately prevail, but whether the claimant is
entitled to offer evidence to support the claims." Bernheim v. Litt,
79 F.3d 318, 321 (2d Cir. 1996) (internal quotations omitted). The court
must limit itself to a consideration of the facts alleged on the face of
the complaint, and to any documents attached to the complaint as exhibits
or incorporated in it by reference. Cosmos, 886 F.2d. at 13. Even where a
document is not incorporated by reference, the court may nevertheless
consider it where the complaint "relies heavily upon its terms and
effect," which renders the document "integral" to the complaint. Chambers
v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002). If, as in the
present case, extraneous material is presented by one or more of the
parties, the court must exclude it from consideration. See Fed.R.Civ.P.
12(b). B. PLAINTIFF'S DISCRIMINATION CLAIMS
1. TITLE DC
Title IX provides, in part:
No person in the United States shall, on the basis of
sex, be excluded from participation in, be denied the
benefits of, or be subjected to discrimination under
any education program or activity receiving federal
20 U.S.C. § 1681 (a). There is an implied private right of action for
gender-based discrimination under Title IX. Cannon v. Univ. of Chicago,
441 U.S. 677
, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979). Gender-based
employment discrimination by educational programs receiving federal
financial support comes within the prohibition of Title IX. North Haven
Bd. of Educ. v. Bell, 456 U.S. 512
, 102 S.Ct. 1912, 72 L.Ed.2d 299
(1982). Additionally, the remedy of damages is available to an individual
in an action to enforce Title IX. Franklin v. Gwinnett County Pub. Sch.,
503 U.S. 60, 76, 112 S.Ct. 1028, 1038, 117 L.Ed.2d 208 (1992).
Defendant claims that plaintiff lacks standing for his Title IX claim,
on the grounds that plaintiff seeks, in part, to adjudicate the interests
of third parties, namely former members of the Fordham women's basketball
team, and that, in any event, plaintiffs Title IX employment
discrimination claim is preempted by Title VII. Defendant also claims
that plaintiffs Title IX claim is premised not on plaintiffs gender, but
on the gender of the students he coached.
Plaintiff claims that he has standing to assert a claim under Title IX
"because he seeks to enforce his own rights and that of the program for
which he was an integral part-Head coach," and that "as a federal
taxpayer, Plaintiff has an implied right to insure that an entity
receiving federal funding properly dispenses such funds in a
non-discriminate [sic] manner." Plaintiff argues that his Title IX claim
is not preempted by Title VII, because defendant never advised plaintiff
of the procedure and right to file a Title VII claim, and because
plaintiff "wished to rectify the discriminatory animus practiced by the
Defendant in its distribution of federal funding, both individually and
for the Women's Basketball program; these are remedies Title VII cannot
provide." Similarly, plaintiff claims that "Title VII could not address
the discriminatory nature in which the Defendant ran its athletic
department or dispensed federal funding." He "brought claims of
enforcement of Title IX provisions, enforcement that cannot be remedied
under Title VII."
"It is by now well settled that `the irreducible constitutional minimum
of standing contains three elements. First, the plaintiff must have
suffered an `injury in fact' an invasion of a legally protected
interest which is (a) concrete and particularized, and (b) actual or
imminent, not conjectural or hypothetical. Second, there must be a causal
connection between the injury and the conduct complained of . . . Third,
it must be likely, as opposed to merely speculative, that the injury will
be redressed by a favorable decision." United States v. Hays, 515 U.S. 737,
742-43, 115 S.Ct. 2431, 2435 (1995) (quoting Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130 (1992) (citations
omitted). The party invoking federal jurisdiction bears the burden of
establishing these elements. Lujan, 504 U.S. at 561. Particularized
"mean[s] that the injury must affect the plaintiff in a personal and individual way." Lujan, 504 U.S. at 560 n. 1
(internal quotation marks omitted). "At the pleading stage, general
factual allegations of injury resulting from the defendant's conduct may
suffice, for on a motion to dismiss we `presum[e] that general
allegations embrace those specific facts that are necessary to support
the claim.'" Lujan, 504 U.S. at 561 (quoting Lujan v. Nat'l Wildlife
Fed'n, 497 U.S. 871, 889, 110 S.Ct. 3177 (1990)). A plaintiff "generally
must assert his own legal rights and interests, and cannot rest his claim
to relief on the legal rights or interests of third parties.'" Valley
Forge Christian Coll. v. Ams. United for Separation of Church & State.
Inc., 454 U.S. 464, 474, 102 S.Ct. 752 (1982) (quoting Warth v. Seldin,
422 U.S. 490, 499, 95 S.Ct. 2197 (1975)). The rare exceptions to this rule
generally involve situations in which the plaintiff has a close relation
with the third party and "there exists some hindrance to the third
party's ability to protect his or her own interests." Edmonson v.
Leesville Concrete Co., 500 U.S. 614, 629, 111 S.Ct. 2077 (1991).
Plaintiff purports to bring his Title IX claim both individually and on
behalf of the program. We note at the outset that plaintiff lacks
standing to bring a claim on behalf of the program. Valley Forge
Christian Coll., 454 U.S. at 474. We further note that payment of federal
taxes does not give plaintiff an "implied right" to regulate federal
spending. See id. at 477. We disagree, however, with defendant's argument
that because plaintiff lacks standing for that part of the claim that is
made on the program's behalf his claim must therefore be dismissed in
toto. Neither the Supreme Court nor the Second Circuit has resolved the
question whether Title IX provides a cause of action to employees of
federally funded educational programs who bring claims of sex
discrimination against their employers. We agree with our sister court's
determination in Henschke that it does. See Henschke v. New York Hosp.
Cornell Med. Ctr., 821 F. Supp. 166, 172 (S.D.N.Y. 1993) (finding that
"the legislative history of Title IX demonstrates an intent on the part
of Congress to have Title IX serve as an additional protection against
gender-based discrimination in educational programs receiving federal
funding regardless of the availability of a remedy under Title VII, and
the Supreme Court and Second Circuit interpretations of the statute do
not permit the contrary conclusion."). "Overlapping jurisdiction in the
area of employment discrimination is well recognized." North Haven Bd. of
Educ. v. Hufstedler, 629 F.2d 773, 784 (2d Cir. 1980), aff'd sub nom.
North Haven Bd. of Educ. v. Bell, 456 U.S. 512, 102 S.Ct. 1912 (1981)
We are also unpersuaded by defendant's argument that dismissal of
plaintiffs Title IX claim is required because the claim is premised not on
plaintiffs gender, but on the gender of the students he coached. The
prohibition of discrimination "on the basis of sex" is broad enough to
encompass a prohibition of discrimination against plaintiff on the basis
of the sex of the players whom he coached. 20 U.S.C. § 1681(a).
Defendant's motion is, therefore, denied as to plaintiffs Title IX
2. EQUAL PAY ACT
The Equal Pay Act is violated if an employer of a covered employee pays
wages to that employee:
[(1)] at a rate less than the rate at which he pays
wages to employees of the opposite sex . . .
[(2)] for equal work on jobs the performance of which
requires equal skill, effort, and responsibility, and [(3)] which are performed under similar working
conditions . . .
29 U.S.C. § 206(d).
In other words, "[a] violation occurs when an employer pays lower wages
to an employee of one gender than to substantially equivalent employees
of the opposite gender in similar circumstances." Pollis v. New Sch.
for Soc. Research, 132 F.3d 115, 118 (2d Cir. 1997).
Plaintiff claims that defendant "subordinated the Plaintiff's pay wage
to his comparative counterpart (Bob Hill, Head Coach of the men's
basketball team) who was less or equally experienced on the college level
and performed the same duties and functions." Plaintiff states that he
seeks relief under the Equal Pay Act "under the well established
principle that associational rights give rise to cognizable discrimination
claims," and asks that the court "grant Plaintiff protective status under
the Equal Pay Act as the holder of a traditionally female position who
associates with female athletes."
Defendant asserts that plaintiff cannot make out a claim under the
Equal Pay Act, because he does not compare himself to any other similarly
situated employee who is female. Defendant also argues that plaintiff's
associational claim finds no support in the law.
Under the plain language of the statute, and as interpreted by this
Circuit, the identification of a comparator employed by the same employer
and of the opposite gender is an indispensable requirement for a
plaintiff bringing an Equal Pay Act Claim. Plaintiff's claim rests upon
alleged disparities between his wage and that of another male coach. As a
matter of law, this will not suffice, and plaintiff's Equal Pay Act claim
is therefore dismissed.
C. PLAINTIFF'S STATE LAW CLAIMS
1. BREACH OF CONTRACT
Plaintiff's complaint alleges that "[d]efendant breached contract [sic]
with Plaintiff by terminating him prior to the end date of his contract."
Plaintiff claims in his memorandum opposing the instant motion that he
had a three-year contract from July 1, 1997, to June 30, 2000, which was
to be rolled over, and that defendant terminated him on March 27, 2000,
"and did not honor the rest of the terms of the contract."
Defendant claims that plaintiff has failed to plead the elements
necessary to make out his claim, and that plaintiff does not assert that
the contract at issue abrogated the legal presumption that employees are
employed at will and can be terminated at any time for any legal reason.
Under the Statute of Frauds, "[e]very agreement, promise or undertaking
is void, unless it or some note or memorandum thereof be in writing, and
subscribed by the party to be charged . . . if such agreement, promise
or undertaking [b]y its terms is not to be performed within one year from
the making thereof." N.Y. Gen., Oblig., Law § 5-701(1). The complaint
makes no allegation that plaintiff's contract with defendant was
memorialized in writing. Regardless of that fact, plaintiff's claim for
breach of contract cannot stand because plaintiff has not pleaded any
facts which suggest any abrogation of the general employment law that
employees are employed at will. See Yaris v. Arnot-Ogden Mem'l Hosp., 891 F.2d 51, 52 (2d Cir. 1989). Therefore,
defendant's motion is granted as to plaintiffs breach of contract claim.
Plaintiff lays out his fraud claim in the following paragraph of his
Beginning in June of 1997, Athletic Director Frank
McLaughlin on behalf of Defendant promised Plaintiff
that a long term contract would be given to
Plaintiff. Mr. McLaughlin requested a copy of a three
(3) year contract that had been offered to Plaintiff
by St. Mary's College in California to use as a draft
for the contract that Defendant would offer
Plaintiff. Defendant and its employees made a promise
of providing Plaintiff with a new, extended contract
that would be comparable to the one offered by St.
Mary's with the intent that Plaintiff would rely on
such a promise. As long as a year after this promise
was made, the contract was not provided. As a result,
Plaintiff missed the opportunity to accept St. Mary's
contract as he was relying on Defendant's promise of a
new contract, which he never received.
Defendant asserts that plaintiffs fraud claim fails under Rule 9(b) of
the Federal Civil Rules of Procedure, as well as under the Statute of
Frauds. Defendant also claims that plaintiffs fraud claim arises out of
defendant's alleged intent to breach a contract with plaintiff, and
therefore states no independent cause of action.
The elements of common law fraud are "a material, false
representation, an intent to defraud thereby, and reasonable reliance on
the representation, causing damage to the plaintiff." Katara v. D.E.
Jones Commodities, Inc., 835 F.2d 966, 970-71 (2d Cir. 1987). In order to
plead fraud, plaintiff must comply with Rule 9(b), which states: "In all
averments of fraud or mistake, the circumstances constituting fraud or
mistake shall be stated with particularity. Malice, intent, knowledge,
and other condition of mind of a person may be averred generally."
Fed.R.Civ.P. 9(b). The Second Circuit has stated that a complaint
containing allegations of fraud "must: (1) specify the statements that
the plaintiff contends were fraudulent, (2) identify the speaker, (3)
state where and when the statements were made, and (4) explain why the
statements were fraudulent." Acito v. Imcera Group, Inc., 47 F.3d 47, 51
(2d Cir. 1995) (quoting Mills v. Polar Molecular Corp., 12 F.3d 1170,
1175 (2d Cir. 1993)). In order to satisfy the requirements of Rule 9(b),
plaintiffs must allege facts that give rise to a strong inference of
fraudulent intent. San Leandro Emergency Med. Group Profit Sharing Plan
v. Philip Morris Cos., Inc., 75 F.3d 801, 812 (2d Cir. 1996). "The
requisite `strong inference' of fraud may be established either (a) by.
alleging facts to show that defendants had both motive and opportunity to
commit fraud, or (b) by alleging facts that constitute strong
circumstantial evidence of conscious misbehavior or recklessness."
Shields v. Citytrust Bancorp, Inc., 25 F.3d 1124, 1128 (1994). The Second
Circuit has noted that "[c]learly, an inference that the defendants knew
their statements to be false cannot be based on allegations which are
themselves speculative." Wexner v. First Manhattan Co., 902 F.2d 169, 173
(2d Cir. 1990).
Plaintiff has failed to allege facts that give rise to a strong
inference of fraudulent intent. See San Leandro Emergency Med. Group, 75 F.3d at 812. He neither alleges
facts to show that defendant had both motive and opportunity to commit
fraud nor does he allege facts that constitute strong circumstantial
evidence of conscious misbehavior or recklessness. See Shields, 25 F.3d
at 1128. Accordingly, defendant's motion is granted as to plaintiff's
claim of fraud.
3. BREACH OF COVENANT OF GOOD FAITH
Plaintiff lays out his claim for breach of the implied covenant of good
faith and fair dealing in the following paragraph of his complaint:
Defendant breached its implied covenant of good faith
and fair dealing with Plaintiff as the Head Coach,
Women's Basketball Team. By virtue of the existence of
a hosfile work environment against the Plaintiff
caused by the actions of Defendant's agents and
servants, is [sic] a de facto breach of the
Plaintiff's expectation that there be good faith and
fair dealing in the contractual relationship.
Defendant asserts that New York law does not recognize a cause of
action for breach of an implied covenant independent of a claim for
breach of the underlying contract. In his memorandum opposing the instant
motion, plaintiff asserts that this claim "is a cause of action
recognized part and parcel to the breach of contract."
Under New York law, parties to an express contract are bound by an
implied duty of good faith, "but breach of that duty is merely a breach
of the underlying contract." Fasolino Foods Co., Inc. v. Banca Nazionale
del Lavoro, 961 F.2d 1052, 1056 (2d Cir. 1992) (quoting Geler v. Nat'l
Westminster Bank USA, 770 F. Supp. 210, 215 (S.D.N.Y. 1991)). Given that
a claim of breach of the covenant of good faith is, at root, a breach of
contract claim, and that plaintiff's complaint includes a breach of
contract claim, defendant's motion as to the breach of covenant claim is
D. REQUEST FOR LEAVE TO FILE AMENDED COMPLAINT
Plaintiff makes a request in the alternative, in regard to his claims
of breach of contract and breach of the implied covenant of good faith
and fair dealing, for leave to "file a more definitive statement under
Fed.R.Civ.P. 12(e) if the current argument under this response is
insufficient." Defendant opposes the granting of such leave, on the
grounds that any amendment would be fufile.
Federal Rule 15(a) provides that leave to amend a complaint shall be
". . . freely given when justice so requires." It is the usual practice
upon granting a motion to dismiss to allow leave to replead. Cortec
Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 48 (2d Cir. 1991). "In the
absence of any apparent or declared reason such as undue delay, bad
faith or dilatory motive on the part of the movant, repeated failure to
cure deficiencies by amendments previously allowed, undue prejudice to
the opposing party by virtue of allowance of the amendment, futility of
amendments, etc. the leave sought should, as the rules require, be
`freely given.'" Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227 (1962).
Given the liberal standard for granting leave to file an amended
complaint, we hereby permit plaintiff to amend his complaint to the
extent of conforming his claim of breach of contract to the requirements
of the Federal Rules of Civil Procedure, should he find himself able to
do so. Given that, as stated above, a claim of breach of the implied
covenant is, at root, a breach of contract claim, we deny plaintiffs
request to amend the implied covenant claim. Any allegations of a breach
of the implied covenant should be included within the breach of contract
For the foregoing reasons, defendant's motion is GRANTED as to each of
plaintiffs claims with the exception of plaintiffs Title DC claim, as to
which defendant's motion is DENIED. Plaintiff is granted leave to amend
his complaint to re-plead his claim of breach of contract. Any such
amended complaint must be served within thirty days of receipt of this
opinion. The pre-trial conference currently scheduled for May 5, 2004, at
11am, is adjourned until June 16, 2004, at 11am.