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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


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 2000.



  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


  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 financial assistance.
  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. ...

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