Graham v. State University of New York at Albany ( 2023 )

21-1927
Graham v. State University of New York at Albany
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUM-
MARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FED-
ERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN
CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
“SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
4th day of January, two thousand twenty-three.
Present:
DEBRA ANN LIVINGSTON,
Chief Judge,
BARRINGTON D. PARKER,
ALISON J. NATHAN,
Circuit Judges,
_____________________________________
GORDON GRAHAM, DANIELLE DUGUID, individually
and on behalf of all those similarly situated, OLIVIA
SCHULTZ, individually and on behalf of all those
similarly situated, COURTNEY TRUDEAU, individu-
ally and on behalf of all those similarly situated,
TAYLOR WATTS, individually and on behalf of all
those similarly situated, AND JOYCE KAGAN, indi-
vidually and on behalf of all those similarly situ-
ated,
Plaintiffs-Appellants,
ISIDORA PEJOVIC, individually and on behalf of all
those similarly situated, CHAE BEAN KANG, individ-
ually and on behalf of all those similarly situated,
ALBA SALA HUERTA, individually and on behalf of
all those similarly situated, CHASSIDY KING, indi-
vidually and on behalf of all those similarly situ-
ated, BRIANNA CICORIA, individually and on behalf
of all those similarly situated, RHEONNA KOSS,
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individually and on behalf of all those similarly sit-
uated,
Plaintiffs,
v. 21-1927
STATE UNIVERSITY OF NEW YORK AT ALBANY AND
MARK BENSON,
Defendants-Appellees,
_____________________________________
For Plaintiffs-Appellants: CARLOS F. GONZALEZ, Carlos F. Gonzalez, P.A. Coral
Gables, FL.
Bernays T. Barclay, on the brief, Rimon, P.C., Albany,
NY.
For Defendants-Appellees: SARAH L. ROSENBLUTH, Assistant Solicitor General
(Barbara D. Underwood, Solicitor General & Jeffrey W.
Lang, Deputy Solicitor General, on the brief), for Letitia
James, Attorney General of the State of New York, Al-
bany, NY.
Appeal from a judgment of the United States District Court for the Northern District of
New York (McAvoy, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court is DISMISSED IN PART and AFFIRMED
IN PART.
Plaintiff-Appellant Gordon Graham (“Graham”) served as the women’s varsity tennis
coach for Defendant-Appellee State University of New York at Albany (the “University”), until
2016 when the University disbanded the team. The following year, the University declined to
renew Graham’s employment contract. Soon thereafter, Graham, together with a group of female
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student-athletes (the “Student-Plaintiffs”), 1 filed suit against the University and its former athlet-
ics director Mark Benson (“Benson”), alleging that the University failed to provide equal oppor-
tunity for female students to participate in varsity athletics in violation of Title IX of the Educa-
tional Amendments of 1972 (“Title IX”), 20 U.S.C. § 1681, et seq. Graham and the Student-
Plaintiffs now appeal from the July 6, 2021 judgment of the district court, granting the University’s
motion for summary judgment and denying the Student-Plaintiffs’ motion for class certification.
See Duguid v. State Univ. of N.Y. at Albany, No. 17 Civ. 1092 (TJM) (DJS), 2021 WL 2805637(N.D.N.Y. July 6, 2021). We presume familiarity with the underlying facts, procedural history,
and issues on appeal.
I. The Student-Plaintiffs’ Title IX Claims
As a preliminary matter, we must determine whether we possess jurisdiction to reach the
merits of the Student-Plaintiffs’ claims. The University urges that each of the named Student-
Plaintiffs has either graduated from the University or no longer retains eligibility to participate in
varsity athletics, thereby rendering moot their claims for injunctive relief. 2 See Campbell–Ewald
1
In addition to their individual claims, the Student-Plaintiffs brought Title IX claims on behalf of
a putative class of “all present, prospective and future female students who are harmed by and wish to end
SUNY Albany’s sex discrimination in the allocation of athletic participation opportunities.” JA 198 ¶ 32.
While the Student-Plaintiffs initially consisted of a group of former members of the disbanded women’s
tennis team, they have since been replaced by a group of female student rowers, who take issue with the
University’s lack of a female rowing team.
2
The Student-Plaintiffs contend that the University has failed to preserve its mootness argument
for appeal, but that is incorrect. See Fox v. Bd. of Trs. of State Univ. of N.Y., 42 F.3d 135, 140 (2d Cir.
1994) (“Defects in subject matter jurisdiction [such as mootness] cannot be waived and may be raised at
any time during the proceedings.”). The Student-Plaintiffs also argue that the University violated their
rights under the Family Educational Rights and Privacy Act (“FERPA”), 20 U.S.C. § 1232g, by including
in their brief educational information without the Student-Plaintiffs’ consent. But FERPA expressly pro-
vides for disclosure of “directory information,” defined to include, inter alia, a student’s name and dates of
attendance, without a student’s consent so long as the educational information satisfies certain public notice
requirements. 20 U.S.C. § 1232g(a)(5)(A)–(B); 34 C.F.R. § 99.37(a). The University has clearly
3
Co. v. Gomez, 577 U.S. 153, 160–61 (2016) (“If an intervening circumstance deprives the plaintiff
of a personal stake in the outcome of the lawsuit, at any point during the litigation, the action can
no longer proceed and must be dismissed as moot.” (citation and internal quotation marks omit-
ted)). In the class action context, where a class has already been certified, the mooting of the
class representative’s dispute does not render the claims of other class members nonjusticiable.
See Genesis Healthcare Corp. v. Symczyk, 569 U.S. 66, 74 (2013). Where, as here, a class has
not been certified, “[a] named plaintiff whose claim expires may not continue to press the appeal
on the merits until a class has been properly certified.” U.S. Parole Comm’n v. Geraghty, 445
U.S. 388, 404 (1980); see also Comer v. Cisneros, 37 F.3d 775, 778 (2d Cir. 1994) (“[I]n general,
if the claims of the named plaintiffs become moot prior to class certification, the entire action
becomes moot.”). In such circumstances, putative class representatives whose individual claims
have become moot may appeal only the denial of class certification. See Geraghty, 445 U.S. at
404; see also Milanes v. Napolitano, 354 F. App’x 573, 575 (2d Cir. 2009) (summary order).
The University proffers that the Student-Plaintiffs’ personal stake in this litigation expired,
at the latest, following the spring 2022 semester, because that is when the final Student-Plaintiff’s
eligibility to participate in varsity athletics expired. Under current National Collegiate Athletic
Association (“NCAA”) rules, student-athletes have five calendar years of eligibility to participate
in intercollegiate competition, calculated “from the beginning of the semester or quarter in which
the student-athlete first registered for a minimum full-time program of studies in a collegiate in-
stitution[.]” Nat’l Collegiate Athletic Ass’n, 2021–2022 NCAA Division I Manual 60 (Rule
provided the requisite notice to disclose directory information, and there is no indication that any of the
Student-Plaintiffs invoked their right to have such information withheld. See Univ. at Albany, FERPA
Information for Students, https://www.albany.edu/registrar/students/ferpa (last visited Jan. 3, 2023).
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12.8.1) (Aug. 1, 2021), https://web3.ncaa.org/lsdbi/reports/getReport/90008. Here, the Student-
Plaintiffs testified as to when they first enrolled in a collegiate institution, which starts the clock
for the NCAA’s five-year rule. 3 The Student-Plaintiffs do not dispute that they are ineligible to
participate in NCAA athletics and even conceded at oral argument that they have all graduated
from the University. The Student-Plaintiffs invite us to ignore the facts demonstrating the moot-
ness of their claims, which we cannot do because it pertains to subject matter jurisdiction. See
Joseph v. Leavitt, 465 F.3d 87, 89 (2d Cir.2006) (“[W]e have an independent obligation to consider
the presence or absence of subject matter jurisdiction sua sponte.”).
Because the Student-Plaintiffs and their putative class seek only prospective injunctive re-
lief, their ineligibility to participate in varsity athletics means they do not stand to personally “ben-
efit from an order requiring equal athletic opportunities[.]” Cook v. Colgate Univ., 992 F.2d 17,
19 (2d Cir. 1993) (collecting cases); see also Grandson v. Univ. of Minn., 272 F.3d 568, 574 (8th
Cir. 2001) (“That a plaintiff lacks eligibility or is no longer a student is an adequate basis to dismiss
an individual Title IX claim for injunctive relief.”). As such, their claims are moot, and we pos-
sess jurisdiction only to review the district court’s decision not to certify their class. As to this
issue, the Student-Plaintiffs argue only that we should “grant [their] motion for class certification
for all of the reasons set forth in detail” in their class certification motion before the district court.
Appellant’s Br. 32. This argument-by-reference is insufficient to preserve the issue for appeal.
See Chevron Corp. v. Donziger, 990 F.3d 191, 204 n.8 (2d Cir. 2021) (“Appellants do not preserve
questions for appellate review by merely incorporating an argument made to the district court by
3
See Dist. Ct. Dkt. No. 126-7 at 14–15 (Danielle Duguid matriculated to the University in fall
2016); 126-8 at 11 (same for Olivia Schultz); 126-9 at 10 (same for Courtney Trudeau); 126-10 at 14 (Tay-
lor Watts matriculated in fall 2017); 126-11 at 12 (same for Joyce Kagan).
5
reference in their brief.” (citation omitted)). The Student-Plaintiffs have therefore waived the
issue of class certification on appeal.
As such, we lack subject matter jurisdiction over the Student-Plaintiffs’ Title IX claims.
II. Graham’s Title IX Claim
We next turn to Graham’s Title IX claim, which poses no jurisdictional hurdle. “We re-
view de novo a district court’s grant of summary judgment after construing all evidence, and draw-
ing all reasonable inferences, in favor of the non-moving party.” Sotomayor v. City of New York,
713 F.3d 163, 164 (2d Cir. 2013). Summary judgment is appropriate “if the movant shows that
there is no genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56.
According to Graham, his individual Title IX claim “derives from the discrimination ex-
perienced by the female student-athletes he coached,” because “he too, suffered gender discrimi-
nation because of the cancellation of the women’s tennis program.” Appellant’s Br. 25, 27. On
appeal, Graham argues that the district court committed legal error by importing into Title IX a
requirement that he proffer evidence that the University eliminated the women’s tennis team under
circumstances giving rise to an inference of discrimination. This was not error. We have held
that “the burden-shifting framework established by the McDonnell Douglas line of cases for claims
of discrimination on account of race, religion, or national origin under Title VII . . . also appl[ies]
to Title IX claims alleging discrimination on account of sex in education programs.” Doe v. Co-
lumbia Univ., 831 F.3d 46, 55 (2d Cir. 2016) (citing McDonnell Douglas Corp. v. Green, 411 U.S.
792 (1973)); see also Radwan v. Manuel, 55 F.4th 101, 130 (2d Cir. 2022) (“Title VII’s burden-
shifting framework generally guides our analysis of claims brought under Title IX.”). Under this
framework, a plaintiff must first “establish a prima facie case of discrimination,” an element of
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which is proof that “the circumstances give rise to an inference of discrimination.” Weinstock v.
Columbia Univ., 224 F.3d 33, 42 (2d Cir. 2000) (citation omitted); accord Radwan, 55 F.4th at
130. “[I]f the plaintiff succeeds in presenting a prima facie case, the defendant may rebut that
showing by articulating a legitimate, non-discriminatory reason for the employment action.”
Weinstock, 224 F.3d at 42. Finally, “[f]or the case to continue, the plaintiff must then come for-
ward with evidence that the defendant’s proffered, non-discriminatory reason is a mere pretext for
actual discrimination.” Id. Thus, the district court did not err in requiring Graham to make out
a prima facie case of sex discrimination to sustain his Title IX claim.
Graham next argues that even if he must establish a prima facie case of sex discrimination,
he has done so by showing the existence of a persistent gender-based disparity in athletic oppor-
tunities for women at the University. But even assuming arguendo that these program-wide sta-
tistics suffice as proof of the University’s intent to discriminate against female athletes when it
eliminated the tennis team, Graham has failed to rebut the University’s stated non-discriminatory
rationale for its decision. The University explains that it discontinued the team following the
America East Conference’s decision to cease sponsoring women’s tennis, which left the team
without a competitive conference in which to participate. JA 303. The University investigated
alternatives to eliminating its Division I women’s tennis program but concluded there was no via-
ble alternative. JA 303–04. The University could not transfer to a different conference within
the country’s eastern region because these conferences were full, while joining an out-of-region
conference posed logistical and financial difficulties. JA 304. Further, operating the women’s
tennis team as an independent entity would have stripped the athletes of the opportunity to compete
in national tournaments, thereby depriving them of a realistic opportunity to compete. Id. The
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University thus decided to discontinue the team and developed a plan to divert the resources pre-
viously allocated for women’s tennis to other women’s athletics programs. JA 304–05.
Graham disputes that the University made a legitimate attempt to sustain the tennis team,
describing its efforts as “half-hearted” because they “did not even include the advice, counsel, or
input of the team’s head coach.” Appellant’s Br. 30. Graham asserts that the University exag-
gerates the burdens associated with operating the team independently or joining an out-of-region
conference, and that both were viable options to keep the women’s tennis team competitive. JA
136. However, he does not point to any evidence that calls into question the legitimacy of the
University’s stated rationale for eliminating the tennis team and reallocating the resources to other
women’s sports. To the contrary, Graham’s opinion testimony evidences merely his disagree-
ment with the University’s decision to terminate the team, not that the decision was a pretext for
discrimination. Cf. Delaney v. Bank of Am. Corp., 766 F.3d 163, 169 (2d Cir. 2014) (noting that
“we do not sit as a super-personnel department that reexamines an entity’s business decisions”
(citation and internal quotation marks omitted)). Under these circumstances, Graham has failed
to carry his burden to rebut the University’s non-discriminatory rationale for disbanding the team.
* * *
We have considered the parties’ remaining arguments and find them to be without merit.
Accordingly, we DISMISS the Student-Plaintiffs’ Title IX claims as moot and AFFIRM the
judgment of the district court as to Graham’s Title IX claim.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
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