Education Law Notes  

A federal judge in Connecticut has entered judgment in favor of the University of St. Joseph in an employment-discrimination lawsuit that was brought pursuant to Title IX of the Education Amendments of 1972 [“Title IX”].  The plaintiff in Piscitelli v. University of Saint Joseph claimed that the establishment of the school’s men’s basketball team had resulted in “a male-dominated, hostile work environment,” an allegation that received national attention due to Basketball Hall of Fame coach Jim Calhoun being the team’s coach.  In granting the University’s Motion for Judgment on the Pleadings, https://www.courtlistener.com/recap/gov.uscourts.ctd.136222/gov.uscourts.ctd.136222.41.1_1.pdf, United States District Judge Kari Dooley held that Title IX does not provide employees with a private remedy for sex discrimination.

The case was brought by former Associate Athletic Director Jaclyn Piscitelli, who in her October 9, 2019 federal court Complaint alleged that following the transition of the University from all-female to co-educational, the school afforded preferential treatment to the newly formed men’s basketball team, which was coached by Calhoun and Glen Miller.  She asserted that following Calhoun’s and Miller’s hire, the athletic department “had become a ‘boys club’” and that she was “treated differently and less favorably than similarly situated male employees, was excluded from participation in activities and denied benefits provided to male employees.”  Piscitelli further alleged that her concerns were ignored or met with hostility when she raised them with the Athletic Director and other University administrators. 

On June 21, 2019, Piscitelli was discharged.  Her subsequent Complaint consisted of a single cause of action, namely that Saint Joseph’s had violated Title IX by purportedly retaliating against her for having “engaged in protected activity” by reporting what she alleged to be “discriminatory conduct toward women, harassment of a sexual nature, and harassment on the basis of sex.”  The University responded by arguing “that Title IX affords no private remedy for employment discrimination claims.”  Judge Dooley agreed, characterizing Piscitelli’s retaliation claim as “a quintessential employment discrimination claim,” and ordering that judgment be entered in favor of the University and the case closed.  In reaching this swift resolution of Piscitelli’s lawsuit, Judge Dooley relied upon her March 27, 2020 decision in Othon v. Wesleyan University, in which the judge had dismissed a similar employment-based Title IX claim brought by a former Associate Professor.  In granting Saint Joseph’s motion, the court noted that Piscitelli had made “no effort to distinguish” her case from Othon and as there was no substantive difference, the same result applied.

The decision in Piscitelli is but the latest in a string of decisions that have addressed the issue of whether Title IX provides a private remedy for employment discrimination claims.  Although most courts – including the United States Courts of Appeal for the Fifth and Seventh Circuits -- have held that it does not, there are others, including the Third Circuit Court of Appeals, that has held it does.  This split in authority also can be found among trial-level courts within the Second Circuit, which consists of Connecticut, New York, and Vermont.  Again, the majority of decisions, including at least four cases in Connecticut, have found no such private remedy.  On March 11, 2020, however, another federal judge in Connecticut reached a contrary result in Doe v. Central Connecticut State University, a decision with which Judge Dooley expressly disagreed, in part dismissing the applicability of the First and Fourth Circuit decisions upon which the Doe court had relied. 

Although the Piscitelli decision is only two pages, it is a helpful reiteration of Judge Dooley’s extraordinarily well-reasoned analysis in Othon, a copy of which decision she appended to her Piscitelli ruling.  In Othon, the court methodically traced the evolution both of Title VII – which, in part, proscribes sex discrimination in the workplace – and of Title IX, specifically within the context of educational institutions.  Although Judge Dooley’s thoughtful explication in Othon is too detailed to discuss at any length within the framework of a blog post, her distinction between the United States Supreme Court’s holding in Jackson v. Birmingham Board of Education and the situations presented in both Othon and Piscitelli was particularly noteworthy.  In Jackson, the Supreme Court held that the plaintiff employee could mount a retaliation claim under Title IX, a fact cited by the Third Circuit and, derivatively, by the Doe court.  As Judge Dooley correctly noted, however, in Jackson, the plaintiff’s “claim was based on the school board ‘retaliating against him for protesting the discrimination against the girls’ basketball team,’” not upon discriminatory gender-based employment practices directed at him.  In fact, unlike the plaintiffs in Othon and Piscitelli, Jackson lacked recourse under Title VII, for, again, his claim was not predicated upon his individual sex.   

The court’s holdings in both Othon and Piscitelli establish a daunting barrier to overcome for plaintiffs who are seeking to prosecute similar, employment-discrimination claims, at least in Connecticut.  At the same time, given the ongoing disagreement among courts as to whether Title IX provides employees of educational institutions with a remedy for alleged sex discrimination, it is almost inevitable that this issue will soon work its way to the Second Circuit.  Should that occur, Judge Dooley’s persuasive reasoning in Othon and in Piscitelli will perhaps prefigure the appellate court’s decision.  If, however, the Second Circuit were instead to align itself with the Third Circuit as opposed to the Fifth and Seventh Circuits, the resultant conflict among the federal appellate courts on this issue would perhaps finally be sufficient enough to compel the United States Supreme Court to resolve it.