Petition for Writ of Certiorari — O'Connor v. Davis

Court, U.S.

FILED

97 1019 DEC 1 8 1997

No. OFFICE OF THE CLERK

In The

Supreme Court of the United States

October Term, 1997

BRIDGET O’CONNOR,

Petitioner,

V.

JAMES DAVIS, Dr., ROCKLAND PSYCHIATRIC

CENTER, and STATE OF NEW YORK,

Respondents.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS FOR

THE SECOND CIRCUIT

PETITION FOR WRIT OF CERTIORARI

Jonathan Lovett, Esq.

Counsel of Record

Jane Bilus Gould, Esq.

LOVETT & GOULD, ESQS.

Attorneys for Petitioner

11 Martine Avenue

White Plains, New York 10606

(914) 428-8401

PRINTINGHOUSE PRESS 25 WEST 43RD STREET NEW YORK, NY 10036 (212) 719-0990

i

QUESTIONS PRESENTED

l.

Whether a college student who is required to participate in

a work/study program involving an internship at a psychiatric

hospital in order to earn her college degree, and who in so

doing provides a benefit to that hospital by participating in

patient treatment subject to the supervision of the hospital, and

whose participation in such program is taken into

consideration in calculating her financial aid package which

included federal work/study funds, should be denied status as

an “employee” of that institution for purposes of Title VII, 42

U.S.C. §2000e, et seg., because she does not receive

“compensation” in the form of a paycheck?

2.

Whether a psychiatric hospital receiving federal funds

while conducting an organized student internship program

with several schools, which program involves regular

instruction, seminars, work supervision and input into grades

for college degree mandated field work, qualifies as an

educational program or activity for purposes of Title IX, 20

U.S.C. §1681, et seg.?

il

PARTIES

The names of all current parties appear in the caption of the

case.

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SAG oie ety ROU

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TABLE OF CONTENTS

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pS et 5 ta iii

pe ape 8 1g) | + Vv

ik ek ve kha dscns aceadsers 1

JURISDICTIONAL STATEMENT.................. 1

STATUTORY PROVISIONS INVOLVED IN

EEE EL 2

SiAtmoees Or IE CASE. ..............0.000.. 4

ee as as na nn pineo0pes 10

POINT I

THE PETITION SHOULD BE GRANTED SO THAT

THE SUPREME COURT MAY RESOLVE THE

CONFLICT AMONG CIRCUITS ON THE ISSUE OF

WHETHER A ‘PAYCHECK’ IS A SINE QUA NON

OF STATUS AS AN EMPLOYEE FOR PURPOSES

OF TITLE VII, 42 U.S.C. §2000¢, et seg. ......... 10

POINT II

THE PETITION SHOULD BE GRANTED TO

RESOLVE THE ISSUE OF WHETHER AN

INSTITUTION WHICH RECEIVES FEDERAL

FUNDS AND WHICH CONDUCTS INTERNSHIP

PROGRAMS IN CONJUNCTION WITH SEVERAL

COLLEGES, IN WHICH IT NOT ONLY

iv

SUPERVISES, BUT PROVIDES INSTRUCTION

AND TRAINING TO STUDENTS FOR COLLEGE

CREDIT IN MANDATORY FIELD WORK, IS

CONDUCTING AN EDUCATION PROGRAM OR

ACTIVITY FOR PURPOSES OF TITLE IX, 20

aS Fem We | PPPTeEee aie ee 15

COT Faces as ee Vine Ve SERS ee eee Rawle 19

APPENDIX

A. Decision of the United States Court of Appeals for

the Second Circuit dated September 19, 1997,

affirming summary judgment and dismissal of

eg FO yee eee Pe eee A-1l

B. Memorandum and Order of the United States

District Court for the Southern District of New York

dated May 20, 1996, granting summary judgment and

dismissing Petitioner’s complaint............ A-23

ea ae: ee eee ee me ee .

TABLE OF AUTHORITIES

Cases Pages

Christopher v. Stouder Memorial Hosp., 936 F.2d 870

EWG} pace ones caso 13

Community for Creative Non-Violence v. Reid,

ag Raha a pe ane te Ae 11

Frankel v. Bally, Inc., 987 F.2d 86 (2d Cir. 1993)...... 1]

Haavistola v. Community Fire Company of Rising

Sun, Inc., 6 F.3d 211 (4th Cir. 1993) ........... 12, 13

Jeldness v. Pearce, 30 F.2d 1220 (9th Cir. 1994)....... 16

Mennone v. Gordon, 889 F.Supp. 53 (D.Conn. 1995) ... 16

Murray v. New York University College of Dentistry,

eR Te fe Ah, . ) Se 15

Neff v. Civil Air Patrol, 916 F.Supp. 710

Ee, Se PER Sete e cers ud et Ane ee ves ss. 13

North Haven Board of Education v. Bell, 456

RRR aCe GOENGKs sew wae see ecescces 15, 16

O'Connor v. Davis, 126 F.3d 112

oo RR... SSS 1, 9, 10, 11, 15, 17, 18

Tadros v. Coleman, 711 F.Supp. 996 (S.D.N.Y. 1989),

aff'd, 898 F.2d 10 (2d Cir. 1990), cert. denied, 498

U.S. 869, reh’g denied, 498 U.S. 995 (1990)........ 12

Women Prisoners of District of Columbia Department of

Corrections v. District of Columbia, 899 F.Supp. 659

CM IG oS oink aoa ion tov sa cess 16, 17

vi

Yusuf v. Vassar College, 35 F.3d 709 (2d Cir. 1994)... .15

Statutes

20 USE. SiGe 0 ORs SSE RIO 1,3, 15

yi Bek ie Pepe rere yy Or Tee ee 2

28 USL. SERED: bcc sa caeielss ee aeee aiid 2

28 USA BERR. «0:50 ceahae ees erdiedas ita 2

28 U.S.C. SIDRRRIION «xcs sckeins babe so ka coe ks 2

28 USL. SIDE ..4.4.65 00 cee were eee acek ie kssse 2

42 USC. GIGS, SO TET 5.2 Be EO

Other

34 CPR. SIRO CIS ov cuceuctustlavevterecas 16, 17

45 CPR, GEE «6 xicoes cba eee ia tee ao 16

LIS Comp. Rac. SH Ciera osc dats ccd bee Usd vies 16

In The

Supreme Court of the United States

October Term, 1997

BRIDGET O’CONNOR,

Petitioner,

Vv.

JAMES DAVIS, Dr., ROCKLAND PSYCHIATRIC

CENTER, and STATE OF NEW YORK,

Respondents.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

OPINIONS BELOW

The opinion of the United States Court of Appeals,

officially reported as O'Connor v. Davis, 126 F.3d 112 (2d Cir.

1997), is annexed hereto as Appendix A. The opinion of the

United States District Court for the Southern District of New

York, which is not officially reported, is annexed hereto as

Appendix B.

JURISDICTIONAL STATEMENT

Petitioner Bridget O'Connor brought this action pursuant

to Title IX, 20 U.S.C. §1681, et seg., and Title VII, 42 U.S.C.

———e

2

§2000e, ef seg., to redress acts of sexual harassment. Petitioner

invoked the District Court’s jurisdiction pursuant to 28 U.S.C.

§§1331 and 1343(a)(4).! Petitioner's related state law claims

were interposed in accordance with the Court’s supplemental

jurisdiction, 28 U.S.C. §1367.

The District Court granted Respondents' motion for

summary judgment and dismissed the action in a

Memorandum and Order dated May 20, 1996. Judgment was

filed and entered on May 23, 1996. A Notice of Appeal was

timely filed on June 11, 1996.

The jurisdiction of the United States Court of Appeals for

the Second Circuit was invoked pursuant to 28 U.S.C. §1291.

By Judgment dated September 19, 1996, the Court of Appeals

affirmed the District Court’s dismissal of the complaint.

In accordance with Rule 13.1 of this Court, this petition is

filed within 90 days of entry of judgment of the Court of

Appeals. The jurisdiction of this Court is invoked pursuant to

28 U.S.C. §1254(1).

STATUTORY PROVISIONS INVOLVED

IN THE CASE

Chapter 42, Section 2000e(f) of the United States Code

(1994), provides in pertinent part:

Petitioner timely filed a charge of discrimination (#160-95-080) with

the Equal Employment Opportunity Commission. The Equal

Employment Opportunity Commission issued Petitioner a Right to Sue

letter on February 15, 1995.

3

The term “employee” means an individual

employed by an employer ....

Chapter 42, Section 2000e-2(a) of the United States Code

(1994), provides in pertinent part:

It shall be an unlawful employment practice for

an employer—

(1) to fail or refuse to hire or to discharge

any individual, or otherwise to

discriminate against any individual with

respect to his compensation, terms,

conditions, or privileges of employment,

because of such individual’s race, color,

religion, sex, or national origin ....

Chapter 20, Section 1681(a) of the United States Code

(1994), provides in pertinent 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...

Chapter 20, Section 1681(c) of the United States Code

(1994), provides in pertinent part:

For purposes of this chapter an educational

institution means any public or private preschool,

elementary, or secondary school, or any

institution of vocational, professional, or higher

education ....

4

STATEMENT OF THE CASE

A. Bridget O’Connor’s Relationship with Rockland

Psychiatric Center |

Petitioner Bridget O’Connor was enrolled as an

undergraduate student at Marymount College. As a

Marymount College student, O’Connor majored in social

work and graduated with a bachelor of science in social work.

The course of study for O'Connor's degree in social work

mandated extensive field work: 100 hours in her junior year

and 200 hours in each semester of her senior year.

O’Connor was not able to freely choose her field work

assignment. Instead, she had to apply for placement at an area |

facility through the College. In that connection, O'Connor was

assigned to Rockland Psychiatric Center (hereinafter “RPC’”).

On September 20, 1995, O'Connor attended a “Social

Work Department Field Student Orientation”, which RPC

held for several interns working at the facility. In addition to

this orientation, RPC regularly organized and provided intern

education through weekly seminars during which interns were

taught about medications, mental illness, patient treatment,

and other related icpics.

While working at RPC, intern O’Connor was supervised

by Lisa Punzone (hereinafter “Punzone”), a clinical social

worker at RPC. O'Connor also worked for Dr. James Davis

(hereinafter “Dr. Davis”), a treating psychiatrist at RPC.

As an RPC intern, O’Connor was assigned patients with

whom she met regularly for one-on-one counseling sessions.

In addition, O’Connor ran group therapy sessions and

attended family therapy sessions while interning at RPC.

5

Punzone and other RPC staff members introduced O’Connor

to patients as an “intern”, not a “volunteer”.

Intern O’Connor documented her sessions with patients in

“process recordings”, which were reviewed by RPC's

supervising social worker Punzone. In addition, intern

O'Connor regularly attended morning staff meetings along

with RPC social workers and other interns during which they

discussed patient treatment, progress end problems. As a

result of her process recordings and participation in staff

meetings, O'Connor contributed to patient treatment plans

developed by RPC staff.

In connection with her work assignments and work/study

related supervision, O’Connor’s performance as an intern was

evaluated by supervising social worker Punzone. In turn, this

evaluation was provided to Marymount College and

considered in determining O’Connor’s grade for the field

work which was required for her degree.

In addition to college credits required for her degree,

intern O’Connor received federal financial aid because her

field work internship at RPC was considered work study.

Accordingly, she was compensated with federal funds for the

hours she worked at RPC as an intern; this compensation was a

part of her financial aid package from the College.

In reaching the conclusion that O'Connor was not an

employee for purposes of Title VII, the Circuit Court found

that the issue of remuneration was dispositive and apparently

because she did not receive a paycheck, relegated her to the

status of volunteer. However, the evidence was clear that RPC

“volunteers” rendered a variety of services materially

different from the work performed by intern O’Connor. For

example, RPC volunteers perform the following functions:

6

¢« “Arts and Crafts Assistant” helping patients

participate in arts and crafts activities;

« “Church Escorts” transporting patients to

religious services;

* “Clothing Boutique Assistant” helping to clothe

patients;

¢« “Community Advisory Board (CAB) Member”

planning fund-raising and special events;

¢ “Entertainer” performing for patients; and, inter

alia,

¢ “Friendly Companion” visiting patients and

engaging them in leisure activities.

As set forth supra, O’ Connor did not function at RPC in any of

these “volunteer” capacities. On the contrary, she worked at

RPC as a social work intern.

O’Connor was part of a regular program RPC conducted

with Marymount College and other schools whereby students

were placed in various departments at RPC to perform social

work as interns under the supervision of RPC personnel. In

exchange for providing patient treatment at RPC, the interns

received clinical education and satisfied compulsory patient

treatment requirements for their degrees. In addition,

O'Connor received work study compensation for the hours she

worked at RPC as part of her College's financial aid package.

B. Davis’ sexually inappropriate behavior

Within the first week of her internship at RPC, O'Connor

encountered Dr. James Davis. He regularly referred to

O’Connor in a sexually offensive manner throughout her

7

internship at RPC. Indeed, Dr. Davis made a series of sexually

inappropriate comments to O’ Connor which clearly amounted

to actionable sexual harassment under the Second Circuit's

prevailing Title VII standard.

In that connection, Dr. Davis admitted making some of

these comments to Plaintiff. In addition, he admitted engaging

in sexually offensive jokes, innuendoes and conduct with

other female RPC staff members.

C. RPC’s knowledge of Dr. Davis’ sexually inappropriate

behavior.

Despite the lack of any sexual harassment complaint

procedure at RPC, intern O’Connor promptly reported Dr.

Davis’ comments to her RPC supervising social worker

Punzone in September 1994. After O’Connor advised

Punzone that his inappropriate comments offended her,

Punzone informed O’Connor that Davis had made similar

comments to Punzone herself, as well as to other staff

members. Apparently resigned to Dr. Davis’ sexually

inappropriate conduct, Punzone simply advised O’Connor to

ignore his comments.

In November 1994, after one of Dr. Davis’ particularly

offensive comments, O’Connor was so obviously upset by

Davis that Punzone asked what was bothering her. O’Connor

explained Dr. Davis' comment. Punzone’s suggestion was to

ignore Davis. O'Connor, who was particularly upset by the

comments because she had been sexually assaulted at the age

of fourteen, again made it clear to Punzone that the comments

upset her.

8

D. RPC’s failure to take remedial action.

Although O’Connor complained about Dr. Davis’

sexually inappropriate behavior throughout the fall semester

of her internship, supervisor Punzone did not report

O’Connor’s complaints to her team leader, James Wagner

(hereinafter “Wagner”), until January 1995. Wagner was,

however, already aware of Davis’ behavior.

Notwithstanding the fact that both RPC supervising social

worker Punzone and RPC team leader Wagner had knowledge

of the harassment, RPC took no action regarding Dr. Davis’

sexually inappropriate behavior until intern O’Connor

complained to Virginia T. Kaiser (hereinafter “Kaiser’’),

Marymount College’s Social Work Field Instructor. Kaiser

brought the issue to the attention of Madeline Connolly

(hereinafter “Connolly”), RPC’s Director of Social Work in

January of 1995.

Incredibly, RPC Director Connolly herself had previously

experienced Dr. Davis’ telling of off-color stories, twisting

neutral comments into sexual innuendoes and making sexual

references. However, she had taken no remedial action to stop

his sexually offensive conduct.

After instructor Kaiser reported intern O’Connor’s

complaint to RPC Director Connolly, Connolly notified

Wilbur T. Aldridge (hereinafter “Aldridge”), RPC’s

affirmative action administrator. In addition to reporting

O’Connor’s complaint, Director Connolly advised

administrator Aldridge of her own experiences with Dr.

Davis’ sexually inappropriate stories, comments and

behavior.

Administrator Aldridge learned of several individuals

affected by Dr. Davis’ sexually offensive conduct. Indeed,

si Ae AE AI We

9

everyone with whom Aldridge spoke confirmed Dr. Davis’

propensity for sexually inappropriate behavior. Despite the

results of his inquiry, Aldridge discontinued his investigation

of intern O’Connor’s complaint after the instant civil action

was instituted and RPC has taken no remedial action against

Dr. Davis.

E. The instant litigation.

On March 13, 1995, Bridget O'Connor commenced the

instant action pursuant to Title VII and Title [X to redress acts

of sexual harassment. Petitioner initially named as Defendants

Dr. James Davis, Dr. Virginia Kaiser, James Wagner,

Madeline Connolly, Lisa Punzone, Marymount College, the

Rockland Psychiatric Center, and the State Of New York.

During the pendency of the action, Petitioner discontinued

her claims against Defendants Marymount College and

instructor Kaiser on August 7, 1995. Thereafter, Petitioner

discontinued her claims against Defendants Dr. Davis, social

worker Punzone, team leader Wagner and Director Connolly

on January 23, 1996.

Following discovery, the Respondents moved for

summary judgment. The District Court never reached the

issue of whether O’Connor was subjected to sexual

harassment. Rather, the District Court held that Plaintiff was

not an employee of RPC for purposes of Title VII and that RPC

was not an educational institution for purposes of Title IX.

Accordingly, the District Court granted summary judgment

and dismissed the complaint in a Memorandum and Order

dated May 20, 1996. Petitioner timely filed a Notice of Appeal

dated June 11, 1996.

The Second Circuit Court of Appeals wrote that it was “not

unsympathetic to O'Connor's situation”. O’Connor, 126 F.3d

10

at 119. Indeed, the Circuit Court recognized that Plaintiff's

scholastic success was dependent on her success at RPC. Jd.

As aresult, the Circuit Court conceded that O'Connor was not

free to walk away from her internship in the same manner that

a volunteer is free to discontinue her service. Jd. In fact, the

Circuit Court agreed that the necessity for O'Connor's

completing her internship was similar to the necessity of any

other employee to earn wages, which made her vulnerable to

on-going harassment in the same fashion as an employee is

vulnerable to on-going misconduct. Jd.

Neverthe'ess, the Circuit Court held that O'Connor was

not an RPC employee for purposes of Title VII and that RPC

was not an administrator of an “educational program or

activity” for purposes of Title IX. Jd. at 116, 119.

Consequently, it affirmed the District Court's dismissal of

O'Connor's complaint. Jd. at 119. For the reasons set forth

infra, certiorari to the Supreme Court is appropriate.

POINT I

THE PETITION SHOULD BE GRANTED SO THAT

THE SUPREME COURT MAY RESOLVE THE

CONFLICT AMONG CIRCUITS ON THE ISSUE OF

WHETHER A “PAYCHECK” IS A SINE QUA NON OF

STATUS AS AN EMPLOYEE FOR PURPOSES OF

TITLE VII, 42 U.S.C. §2000¢, et seq.

In rendering its decision, the United States Court of

Appeals for the Second Circuit held that “the preliminary

question of remuneration is dispositive in this case,” 126 F.2d

at 116, and that because “the absence of either direct or

indirect economic remuneration or the promise thereof is

11

undisputed, Bridget O’ Connor was not a Rockland Psychiatric

Center (“RPC”) employee within the meaning of Title VII.”

Id. The Court of Appeals noted in its opinion that O’Connor

was not “hired” by RPC and opined that “only where a ‘hire’

has occurred” should the common-law agency test [of the

employer-employee relationship] as set forth in Community

for Creative Non-Violence v. Reid 490 U.S. 730 (1989), and

which depends on the “totality of the circumstances,” Frankel

v. Bally, Inc., 987 F.2d 86, 90 (2d Cir. 1993) be undertaken.

O’Connor, 126 F.3d at 115.

The Court of Appeals reached this determination in the

face of the undisputed fact that the field work represented by

O’Connor’s internship at RPC was required in order to obtain

her college degree in social work and its own acknowledgment

that “from her perspective, her success at Marymount

[College] was dependent to some degree on successfully

completing her internship with Rockland, and that her

dependency on Rockland made her vulnerable to continued

harassment much as an employee dependent on a regular wage

can be vulnerable to ongoing misconduct.” Jd. at 119.

Moreover, the Court of Appeals rejected as material the

undisputed fact that the work study internship program in

which O’Connor participated was considered in calculating

her financial aid package, which included federal work study

funds. Jd. at 116 n.2.

Finally, the Circuit Court arrived at its determination

notwithstanding the undisputed fact that O’Connor was

counseling clients and generally participating in patient

treatment and, thus, in fulfilling the mission of RPC during the

course of her internship. Since RPC, the “putative employer,”

willingly derived a benefit from O’Connor’s services, this

12

opinion appears to be inconsistent with the Court’s own

dictum in Tadros v. Coleman, 711 F.Supp. 996 (S.D.N.Y.,

1989), aff'd, 898 F.2d 10 (2d Cir., 1990), cert. denied, 498

U.S. 869, reh'g denied, 498 U.S. 995 (1990), where it wrote:

“Tt is axiomatic that a would-be plaintiff must

have rendered the defendant some kind of service

in order to sue under Title VII. That service,

moreover, must have been one from which the

putative employer willingly derived benefit.”

Id. at 1003.

Critical to a resolution of this Petition for Certiorari is that

the holding of the Second Circuit conflicts with the holding of

the Fourth Circuit in Haavistola v. Community Fire Co. of

Rising Sun, Inc., 6 F.3d 211 (4th Cir. 1993), in which that

Court of Appeals noted that although the Pl..intiff was not paid

a salary for her service as a member of a Volunteer Fire

Company, she did “not affiliate with the company without

reward entirely,” Jd. at 221. The Court went on to list benefits

that she did receive, including, inter alia, a state-funded

disability pension, scholarships for dependents upon

disability or death, group life insurance, tuition

reimbursement for courses in emergency medical and fire

service techniques, and access to a method by which she may

obtain certification as a paramedic.

The Court of Appeals for the Fourth Circuit concluded in

Haavistola that “Because compensation is not defined by

Statute or case law we hold that it cannot be found as a matter

of law,” and that a fact finder must determine whether the

listed benefits and others represent “indirect but significant

remunerziion ,. . . or inconsequential incidents of an otherwise

gratuitous relationship.” Jd.

td eto en

13

In dictum, the District Court in Neff v. Civil Air Patrol, 916

F.Supp 710 (S.D.Ohio 1996), also suggested the need for

guidance from the Supreme Court on the issue of whether

there are any circumstances in which the receipt of a paycheck

is not the sine gua non of a Plaintiff's status as an employee for

purposes of Title VII. There, the District Court, on its own

motion, reconsidered its prior ruling denying the Defendant’s

Motion for Summary Judgment, reversed itself after

“revisiting the issue” and granted judgment in favor of the

Defendant.

In finally rejecting Plaintiffs claim that her relationship to

the Civil Air Patrol was that of an employee for purposes of

Title VII, the Neff Court attempted to distinguish the facts of

that case from that of Haavistola, supra. First the Neff Court

referred to the Sixth Circuit’s “economic realities” test as set

forth in Christopher v. Stouder Memorial Hosp., 936 F.2d

870, 875 (6th Cir. 1991), which “requires a plaintiff to

demonstrate there her position with the putative employer was

one that either looked like an employment relationship . . . or

was likely to affect an employment relationship,” it held that

“a Plaintiff may be considered an employee whenever

significant economic interests are at stake in her relationship

with her putative employer.” Neff supra at 715.

However, in referring to the criteria set forth in

Haavistola, supra, the Neff Court noted that unlike the

Plaintiff in Haavistola, the Plaintiff “did not use the CAP

[Civil Air Patrol] as a stepping stone to another position and

did not need to participate in CAP as a coincident with another

occupation.” Jd. at 715.

In the case at bar, it is manifest that the Plaintiff was

required to participate in the Rockland internship in order to

14

earn her degree; it must be similarly undisputed that a college

degree is a prerequisite to a career as a social worker; in other

words significant, albeit, future, economic interests were at

stake in her relationship with RPC.

In view of the foregoing conflict among the Circuits and

the clear need for guidance from the Supreme Court on the

unresolved issue of whether a paycheck is a sine qua non of a

Plaintiff's status as an employee for purposes of Title VII, and

in view of the ramifications of the Second Circuit’s opinion,

which, if permitted to stand, removes from the reach of Title

VII student interns who, like Bridget O’Connor, are required

to engage in field work in order to earn their college degrees,

and who in doing so provide a benefit to their putative

employers, this Petition for a Writ of Certiorari should be

granted.

15

POINT I

THE PETITION SHOULD BE GRANTED TO

RESOLVE THE ISSUE OF WHETHER AN

INSTITUTION WHICH RECEIVES FEDERAL FUNDS

AND WHICH CONDUCTS INTERNSHIP PROGRAMS

IN CONJUNCTION WITH SEVERAL COLLEGES, IN

WHICH IT NOT ONLY SUPERVISES, BUT

PROVIDES INSTRUCTION AND TRAINING TO

STUDENTS FOR COLLEGE CREDIT IN

MANDATORY FIELD WORK, IS CONDUCTING AN

EDUCATION PROGRAM OR ACTIVITY FOR

PURPOSES OF TITLE IX, 20 U.S.C. §1681, et seq.

Title IX prohibits gender based discrimination in any

educational program or activity receiving federal financial

assistance. 20 U.S.C. §1681(a). Title [X’s protection from

gender discrimination extends to both students and employees

participating in programs which are within the ambit of the

act. Murray v. New York University College of Dentistry, 57

F.3d 243, 248 (2d Cir. 1995), citing, North Haven Board of

Education v. Bell, 456 U.S. 512, 520-535 (1982).

In reviewing Title [X claims “courts have generally

adopted the same legal standards that are applied to such

claims under Title VII.” Murray, 57 F.3d at 248; see also,

Yusuf v. Vassar College, 35 F.3d 709, 714 (2d Cir. 1994). As

set forth supra, the record clearly established that O'Connor

was sexually harassed under Title VII standards. Nonetheless,

the Second Circuit Court of Appeals held that O'Connor could

not pursue a Title IX claim against RPC because it did not

conduct an “education program or activity”. O'Connor, 126

F.3d at 119. This conclusion was erroneous.

16

Title IX must be accorded “a sweep as broad as its

language”. North Haven, 456 U.S. at 521. Accordingly, the

court in Mennone v. Gordon, 889 F.Supp. 53 (D.Conn. 1995),

recognized administrative regulations which stated that “Title

IX was designed to eliminate sex discrimination under any

education program or activity receiving Federal financial

assistance, ‘whether or not such program or activity is

sponsored by an educational institution ....” Jd at 56,

quoting 34 C.F.R. §106 (emphasis added).

“Recipients” of federal financial assistance include “any

State or political subdivision thereof, or any instrumentality

thereof, or any instrumentality of a State or political

subdivision thereof, any public or private agency, institution

or organization, or other entity, or any person, to whom

Federal financial assistance is extended directly or through

another recipient and which operates as an education program

or activity which receives or benefits from such assistance ....”

Id. Accordingly, Mennone held that Title IX applied to

individuals. 889 F.Supp. at 56-58.

The Ninth Circuit reached a similar conclusion using

similar logic regarding prison education programs in Jeldness

v. Pearce, 30 F.2d 1220, 1226 (9th Cir. 1994), citing 45 CFR

§86. The same conclusion should have been reached with

respect to RPC.

Indeed, the RPC program at issue falls within the

legislative intent of Title IX. When Title [IX was presented in

Congress, it was plainly announced that it was “meant to

expand employment opportunities for women”. Women

Prisoners of District of Columbia Department of Corrections

v. District of Columbia, 899 F.Supp. 659, 668-669 (D.D.C.

1995), citing 118 Cong.Rec. 5808 (1972). Thus, “[a] recipient

17

of federal funding may not discriminate on the basis of sex in

the following educational programs or activities: industrial,

physical education, vocational, technical.” Women Prisoners,

899 F.Supp. at 669, citing 34 C.F.R. §106.34 (1994).

Significantly, “Vocational education is preparation for the

pursuit of a technical, skilled, or semiskilled occupation or

trade, or study in a technical field, whether or not the school

or institution offers certificates, diplomas, or degrees and

whether or not it offers full-time study.” Women Prisoners,

899 F.Supp. at 669 n.10, citing 34 C.F.R. §106.2(n) (1994)

(emphasis added).

It is unchallenged that RPC is a “recipient” of federal

financial assistance. O'Connor, 126 F.3d at 117 n.3.

Furthermore, the RPC provides vocational training through an

organized educational program. Student interns at RPC are

provided an orientation and regular weekly seminars

regarding medications, mental illness, patient treatment, and

other related topics, in addition to structured practical and

clinical instruction in the technical field of social work.

O'Connor participated in this program and was placed at RPC

to satisfy her college degree requirements. In addition, she

received federal financial aid through her college for her work

at RPC. Thus, the RPC internship program is manifestly an

educational activity.

Considering all of the foregoing, Title LX should apply to

the RPC. Nonetheless, the Second Circuit rejected Petitioner's

Title LX claim. The Circuit Court expressly recognized that the

1988 Amendments to the statute broadened the applicability

of Title [X, so that any program at an institution receiving

federal funds would be covered, whether or not the program

received funds directly. Jd.

18

Accordingly, the Circuit Court based its rejection of

Petitioner's claim on a holding that RPC had not conducted an

educational program or activity. In reaching this conclusion,

the Circuit Court expressly recognized that the term

“education” is not defined by statute nor regulation, and had

not been construed by that court. Jd at 118. Despite the

numerous indicia of an educational training program, the court

declined “to convert [RPC's] willingness to accept volunteers

into conduct analogous to administering an ‘education

program’ as contemplated by Title IX.” Jd.

Given the number of students participating in organized

internship programs at federally funded entities working in

connection with colleges and universities to provide training

and work experience pursuant to a college degree

requirement, the status of such institutions for purposes of

Title IX warrants clarification by the Supreme Court.

Accordingly, this Petition for Certiorari should be granted.

19

CONCLUSION

For the foregoing reasons, this Court should issue a writ of

certiorari to review the judgment of the Court of Appeals for

the Second Circuit.

Respectfully submitted,

Jonathan Lovett

Counsel of Record

Jane Bilus Gould

LOVETT & GOULD, ESQS.

Attorneys for Petitioner

11 Martine Avenue

White Plains, N.Y. 10606

(914) 428-8401

A-1

APPENDIX A

United States Court of Appeals

FOR THE SECOND CIRCUIT

UNITED STATES COURT HOUSE

40 FOLEY SQUARE

NEW YORK 10007

GEORGE LANGE III, CLERK

Ata Stated Term of the United States Court of Appeals for

the Second Circuit, held at the United States Courthouse,

Foley Square, in the City of New York, on the 19th day of

September, one thousand nine hundred and ninety-seven.

PRESENT: HON. John M. Walker, Jr.

HON. Fred I. Parker

HON. Gerald W. Heaney*

Circuit Judges

Docket No: 96-7769

UNITED STATES COURT OF APPEALS

SECOND CIRCUIT

FILED SEP 19 1997

GEORGE LANGE III, CLERK/stamp

BRIDGET O’CONNOR,

Plaintiff-Appellant,

Vv.

JAMES DAVIS, DR., ROCKLAND PSYCHIATRIC

CENTER, and STATE OF NEW YORK,

Defendants-Appellees.

A-2

Appeal from the United States District Court for the

Southern District of New York.

This cause came on to be heard on the transcript of record

from the Southern District of New York and was argued by

counsel.

ON CONSIDERATION WHEREOF, it is now hereby

ORDERED, ADJUDGED, and DECREED that the judgment

of said district court be and it hereby is affirmed in accordance

with the opinion of this court.

For the Court

GEORGE LANCE II, Clerk

By: Beth J. Meador/signature

Beth J. Meador

Administrative Attorney

* The Honorable Gerald W. Heaney of the United States

Court of Appeals for the Eighth Circuit, sitting by designation.

ISSUED AS MANDATE

OCT 17 1997/stamp

RECEIVED OCT 20/stamp

A-3

126 F.3d 112

74 Fair Empl.Prac.Cas. (BNA) 1561

(Cite as: 126 F.3d 112)

Bridget O'CONNOR, Plaintiff-Appellant,

v.

James DAVIS, Dr., Rockland Psychiatric Center,

and State of New York,

Defendants-Appellees.

No. 728 Docket 96-7769.

United States Court of Appeals,

Second Circuit.

Argued Jan. 29, 1997.

Decided Sept. 19, 1997.

College student sued state and hospital, claiming that

doctor subjected her to sexual harassment in violation of Title

VII and Title IX, while she worked as volunteer intern. The

United States District Court for the Southern District of New

York, Charles L. Brieant, J., granted summary judgment in

favor of hospital and state. Student appealed. The Court of

Appeals, Walker, Circuit Judge, held that: (1) student was not

employee under Title VII, and (2) hospital was not

transformed into administrator of education program or

activity under Title IX by permitting student to perform

volunteer field work at its facility.

Affirmed.

A-4

[1] FEDERAL COURTS k802

170Bk802

On appeal from grant of summary judgment, all evidence

would be viewed in light most favorable to nonmoving party.

Fed.Rules Civ.Proc.Rule 56(c), 28 U.S.C.A.

[2] MASTER AND SERVANT kl

255k1

When Congress uses term “employee” without defining it

with precision, courts should presume that Congress had in

mind conventional master-servant relationship as understood

by ¢ommon-law agency doctrine.

[3] MASTER AND SERVANT k1

255k1

Common feature shared by both employee and

independent contractor is that they are hired parties, and thus,

prerequisite to considering whether individual is one or the

other under common-law agency principles is that individual

have been hired in the first instance.

[3] MASTER AND SERVANT k5

255k5

Common feature shared by both employee and

independent contractor is that they are hired parties, and thus,

prerequisite to considering whether individual is one or the

other under common-law agency principles is that individual

have been hired in the first instance.

A-5

[4] MASTER AND SERVANT k1

255k1

Courts turn to common-law principles to analyze

character of economic relationship only in situations that

plausibly approximate employment relationship.

[5] MASTER AND SERVANT ki

255k1

If no financial benefit is obtained by purported employee

from employer, no plausible employment relationship of any

sort can be said to exist; although compensation by putative

employer to putative employee in exchange for his services is

not sufficient condition, it is essential condition to existence of

employer-employee relationship.

[6] CIVIL RIGHTS k143

78k143

College student was not employee, under Title VII, of

psychiatric hospital where she spent volunteer internship as

part of her studies in social work; although college paid

student, with federal work study funding, for hours spent at

hospital, hospital provided student with no direct or indirect

economic remuneration or promise thereof. Civil Rights Act

of 1964, § 701 et seq., as amended, 42 U.S.C.A. § 2000e(f).

[7] CIVIL RIGHTS k127.1

78k127.1

State-run psychiatric hospital that received federal money

was not transformed into administrator of education progrim

or activity under Title IX, by permitting student-intern from

college with which hospital had no affiliation to perform

volunteer field work at its facility; hospital accepted no

A-6

tuition, had no teachers or evaluation process, required no

regular hours or course of study for volunteer workers, did not

share staff with college, and did not circulate funds with

college. Education Amendments of 1972, § 908, as amended,

20 U.S.C.A. § 1687; 34 C.F.R. § 106.2.

[8] STATUTES k206

361k206

Court is bound, under ordinary rules of statutory

construction, to give content to entire phrase selected by

Congress.

[9] CIVIL RIGHTS k127.1

78k127.1

To implicate Title IX in the first instance, entity must have

features such that one could reasonably consider its mission to

be, at least in part, educational. Education Amendments of

1972, § 901(a), as amended, 20 U.S.C.A. § 1681(a).

*113 Craig T. Dickinson, White Plains, NY (Jonathan

Lovett, Lovett & Gould, White Plains, NY, on the brief), for

Plaintiff-Appellant.

Janine M. Spinnato, Assistant Attorney General, New

York City (Dennis C. Vacco, Attorney General, New York

City, Thomas D. Hughes, Assistant Attorney General, New

York City, on the brief), for Defendants-Appellees.

Before: WALKER, PARKER, and HEANEY [FN*],

Circuit Judges.

FN* The Honorable Gerald W. Heaney of the

United States Court of Appeals for the Eighth

Circuit, sitting by designation.

WALKER, Circuit Judge:

Plaintiff-appellant Bridget O'Connor (“O'Connor”)

appeals from the May 23, 1996, judgment of the United States

District Court for the Southern District of New York (Brieant,

J.) granting the summary judgment motion of defendants-

appellees Rockland Psychiatric Center (“Rockland”) and the

State of New York and dismissing O'Connor's sexual

harassment claims, which were brought pursuant to both Title

VII of the Civil Rights Act of 1964, § 706(e), as amended, 42

U.S.C. § 2000e, et seq. (“Title VII’), and Title IX of

Education Amendments of 1972, § 901(a), as amended, 20

U.S.C. §§ 1681, et seq. (“Title IX”). For the following

reasons, we affirm.

BACKGROUND

While enrolled as a student at Marymount College

(“Marymount”), a private Catholic college located in

Tarrytown, New York, Bridget O'Connor majored in social

work: As a component of her major, O'Connor was required

during her senior year to perform 200 hours of field work at

one of several Marymount-approved organizations which, in

the past, had included schools, daycare centers, community

organizations, correctional facilities, and social service

agencies. Marymount arranged for O'Connor to be placed for

her senior-year internship with Rockland, a hospital for the

mentally disabled operated by New York State. Because this

internship was considered to be “work study” for financial aid

purposes, O'Connor received, through Marymount, federal

work study funds for the time she spent performing her

volunteer work with Rockland.

A-8

O'Connor's internship with Rockland began on September

20, 1994. The hours O'Connor worked were flexible, although

she generally chose to work on Mondays and Wednesdays

from approximately 8:00 a.m. to 4:30 p.m. because that

schedule did not conflict with her regular Marymount classes.

O'Connor regularly attended morning staff meetings with

Rockland employees and other volunteers, met with the

patients assigned to her both one-on-one and in groups. She

then documented the results of these patient sessions in

“process recordings” which were given first to her Rockland

supervisor, Lisa Punzone (“Punzone”’), and then to faculty at

Marymount.

Dr. James Davis (“Davis”) worked as a licensed

psychiatrist at Rockland. Approximately two days after

O'Connor began her internship, Davis referred to O'Connor, in

her presence, as “Miss Sexual Harassment”—a term Davis

later explained was intended, as a compliment, to convey the

idea that O'Connor was physically attractive and, as such, was

likely to be the object of sexual harassment. O'Connor

promptly complained about Davis's comment to Punzone,

who explained that Davis made similar comments to her, and

that O'Connor should try her best to ignore him.

Not only did Davis continue to address O'Connor as “Miss

Sexual Harassment,” he added to his repertoire of

| inappropriate sexual remarks. For instance, on one Monday

| morning, Davis told O'Connor that she *114 looked tired, and

that she and her boyfriend must have had “a good time” the

| night before. On another occasion, Davis pointed to a picture

| in a newspaper of a woman dressed only in underwear and

announced that O'Connor was the woman photographed. He

also suggested to O'Connor (and other women present) that

they should participate in an “orgy.” Finally, on yet another

A-9

occasion, Davis told O'Connor to remove her clothing in

preparation for a meeting with him; he explained, “Don't you

always take your clothes off before you go in the doctor's

office?”

O'Connor was apparently not Davis's only target; he also

commented regularly on the physical appearance of a number

of women employed at Rockland, and directed sexual jokes

and sexually suggestive noises at them—particularly, as Davis

put it, on occasions when he thought the women “looked very

well that day.” Davis also made “jokes” about female

patients—suggesting in one instance that a women patient

would benefit from sterilization and, on another occasion,

when considering a woman patient who was an incest victim,

stating: “the family that plays together stays together.”

Although O'Connor reported a good deal of this conduct to

Punzone, Punzone did not report any of O'Connor's

complaints to James Wagner, her own supervisor, until

January of 1995. And when Wagner learned of O'Connor's

encounters with Davis, he, like Punzone, did nothing to

remedy the situation.

Also in January of 1995, O'Connor complained to Virginia

Kaiser, Marymount's social work field instructor, who in turn

brought Davis's conduct to the attention of Madeline

Connolly, Rockland's director of social work. Connolly then

notified Wilbur T. Aldridge, Rockland's affirmative action

administrator, who thereafter investigated O'Connor's

complaint.

Finally, at some point in January of 1995, O'Connor left

Rockland; however, Marymount arranged for her to complete

her internship at another facility.

———————e

A-10

In March of 1995, O'Connor filed the instant action against

Marymount, Rockland, the State of New York, and various

Marymount and Rockland employees, alleging, inter alia,

sexual harassment in violation of Title VII, 42 U.S.C. § 2000e,

et seq., and Title IX, 20 U.S.C. §§ 1681, et seq. The action was

eventually discontinued against Marymount, Punzone,

Wagner, Connolly, and Davis himself. The remaining

defendants (Rockland and New York State) moved for

summary judgment on several grounds. First, they argued that

the plaintiff's Title VII claim should be dismissed because

O'Connor was not an “employee” of Rockland within the

meaning of Title VII. Second, the defendants argued that the

Title IX claim should be dismissed because Rockland was not

an “educational institution” as set forth in Title IX. Finally, the

defendants argued that O'Connor failed to establish a prima

facie case of sexual harassment.

In an opinion and order dated May 20, 1996, the district

court granted the defendants’ summary judgment motion,

agreeing that O'Connor was not an “employee” under Title

VII and that Rockland was not an “educational institution”

under Title IX. [FN1] Because of this disposition, the district

court did not reach the defendants’ assertion that O'Connor

failed to establish a prima facie case of sexual harassment.

FN1. In a ruling not challenged on appeal, the

district court also found that the plaintiff had

abandoned the claims she brought pursuant to 42

U.S.C. § 1983.

A-11

DISCUSSION

[1] Summary judgment may not be granted unless the

court determines that there are no genuine issues of material

fact in dispute and that the moving party is entitled to

judgment as a matter of law. See Fed.R.Civ.P. 56(c);

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106

S.Ct. 2505, 2509- 10, 91 L.Ed.2d 202 (1986). Because

summary judgment was granted against O'Connor, we

consider all of the evidence in the light most favorable to her.

See Kracunas v. Iona College, 119 F.3d 80, 82-83 (2d

Cir.1997).

*115 I. Title VII

O'Connor's first argument on appeal is that the district

court improperly concluded that she was not a Rockland

employee within the meaning of Title VII. She argues that

although she worked at Rockland as an unpaid intern, she

nevertheless satisfies the common-law agency definition of

“employee.” We disagree.

[2] The definition of the term “employee” provided in

Title VII is circular: the Act states only that an “employee” is

an “individual employed by an employer.” 42 U.S.C. §

2000e(f); see also EEOC v. Johnson & Higgins, 91 F.3d 1529,

1538 (2d Cir.1996). However, it is well established that when

Congress uses the term “employee” without defining it with

precision, courts should presume that Congress had in mind

“the conventional master-servant relationship as understood

by the common-law agency doctrine.” Nationwide Mut. Ins.

Co. v. Darden, 503 U.S. 318, 322-23, 112 S.Ct. 1344, 1348,

117 L.Ed.2d 581 (1992) (quoting Community for Creative

Non-Violence v. Reid, 490 U.S. 730, 739-40, 109 S.Ct. 2166,

A-12

2172-73, 104 L.Ed.2d 811 (1989)); see also Walters v.

Metropolitan Educ. Enters., Inc., — U.S. ; , 117

S.Ct. 660, 666, 136 L.Ed.2d 644 (1997); Frankel v. Bally,

Inc., 987 F.2d 86, 90 (2d Cir.1993).

In most cases where an attempt has been made to discern

the contours of the “conventional master-servant

relationship,” it has been because a court has been asked to

consider whether, under a particular statute, a party is an

employee or an independent contractor. See, e.g., Reid, 490

U.S. at 739-40, 109 S.Ct. at 2172-73 (considering the

Copyright Act of 1976, 17 U.S.C. §101); Darden, 503 U.S.

318, 322-23, 112 S.Ct. 1344, 1348, 117 L_Ed.2d 581 (1992)

(considering ERISA, 29 U.S.C. § 1132(a)); Alford v. United

States, 116 F.3d 334, 337-38 (8th Cir.1997) (considering 26

U.S.C. § 62(a)(1) of the Internal Revenue Code); Cilecek v.

Inova Health Sys. Servs., 115 F.3d 256, 260 (4th Cir.1997)

(considering Title VII); Sharkey v. Ultramar Energy Ltd. 70

F.3d 226, 232 (2d Cir.1995) (considering ERISA). In this

context, the Supreme Court has outlined the following factors,

culled from the Restatement of Agency, see Reid, 490 U.S. at

752 n. 31, 109 S.Ct. at 2179 n. 31, and from caselaw, as

relevant to the inquiry:

In determining whether a hired party is an

employee under the general common law of

agency, we consider the hiring party's right to

control the manner and means by which the

product is accomplished. Among the other

factors relevant to this inquiry are the skill

required; the source of the instrumentalities and

tools; the location of the work; the duration of

the relationship between the parties; whether the

A-13

hiring party has the right to assign additional

projects to the hired party; the extent of the hired

party's discretion over when and how long to

work; the method of payment; the hired party's

role in hiring and paying assistants; whether the

work is part of the regular business of the hiring

party; whether the hiring party is in business; the

provision of employee benefits; and the tax

treatment of the hired party.

Reid, 490 U.S. at 751-52, 109 S.Ct. at 2178-79 (footnotes

omitted).

[3] Both parties on appeal (and the district court below)

addressed themselves to the question of whether or not

O'Connor was an employee within this framework. However,

we think that this analysis is flawed because it ignores the

antecedent question of whether O'Connor was hired by

Rockland for any purpose. As the Supreme Court suggests,

the common feature shared by both the employee and the

independent contractor is that they are “hired part [ies],” id.,

and thus, a prerequisite to considering whether an individual is

one or the other under common-law agency principles is that

the individual have been hired in the first instance. That is,

only where a “hire” has occurred should the common-law

agency analysis be undertaken.

[4][5] Other courts have agreed with this view. As the

Eighth Circuit has explained, courts turn to common-law

principles to analyze the character of an economic relationship

“only in situations that plausibly approximate an employment

relationship.” Graves v. Women's Prof'l Rodeo Assoc., 907

F.2d 71, 74 (8th Cir.1990). Where no financial benefit *116 is

obtained by the purported employee from the employer, no

A-14

“plausible” employment relationship of any sort can be said to

exist because although “compensation by the putative

employer to the putative employee in exchange for his

services is not a sufficient condition, ... it is an essential

condition to the existence of an employer-employee

relationship.” Graves, 907 F.2d at 73. See also Neff v. Civil

Air Patrol, 916 F.Supp. 710, 712-13 (S.D.Ohio, 1996); Smith

v. Berks Community Television, 657 F.Supp. 794, 796

(E.D.Pa.1987); cf. Haavistola v. Community Fire Co., 6 F.3d

211, 219 (4th Cir.1993).

This “essential condition” of remuneration has been

recognized in this Circuit as well. In Tadros v. Coleman, 898

F.2d 10, 11 (2d Cir.1990), we explicitly upheld the dismissal

of the Title VII claims ofa plaintiff who worked as a volunteer

on the faculty of Cornell Medical College on the ground that

the plaintiff was not an employee under Title VII. As a

volunteer, the plaintiff received no salary, health benefits,

retirement benefits, and also had no regular hours assigned to

him by the hospital. In concluding that the plaintiff was not an

employee, the district court in Tadros held that “[a] Title VII

plaintiff is only an 'employee' if the defendant both pays him

and controls his work.” 717 F.Supp. 996, 1004

(S.D.N.Y.1989).

[6] We believe that the preliminary question of

remuneration is dispositive in this case. It is uncontested that

O'Connor received from Rockland no salary or other wages,

and no employee benefits such as health insurance, vacation,

or sick pay, nor was she promised any such compensation.

[FN2] This case thus differs from Haavistola v. Community

Fire Co., in which the Fourth Circuit considered whether a

volunteer member of a fire company was an employee for

Title VII purposes where “[o]n the one hand, [plaintiff] did not

A-15

receive direct compensation as a member of the Fire

Company, but, on the other hand, she did not affiliate with the

company without reward entirely.” 6 F.3d 211, 221 (4th

Cir.1993). The court then noted that the plaintiff received,

through her volunteer position, a state-funded disability

pension, survivors’ benefits for dependents, scholarships for

dependents upon death or disability, group life insurance, and

several other benefits. See id. The court concluded that the

district court granted summary judgment improvidently,

given that a factfinder should determine whether “the benefits

represent indirect but significant remuneration ... Or

inconsequential incidents of an otherwise gratuitous

relationship.” Jd. at 222.

FN2. We reject O'Connor's claim that she was

compensated to the extent that she received,

through Marymount, federal work study funding

for the hours of volunteer work performed at

Rockland. Plainly, it was Marymount— not

Rockland—that made these payments to

O'Connor.

Because the absence of either direct or indirect economic

remuneration or the promise thereof is undisputed in this case,

we agree with the district court that O'Connor was not a

Rockland employee within the meaning of Title VII and thus

that her discrimination claim under that statute must fail.

Il. Title IX

[7] O'Connor's second argument is that the district court

erred in dismissing her Title IX claim in the belief that Title IX

did not apply to‘Rockland because Rockland is not an

“education program or activity.” O'Connor urges that because

A-16

Rockland both receives federal financial assistance either

through the state, its patients, or its employees, and also

operates “vocational training through an organized

educational program,” Appellant's Brief at 30, it is subject to

Title IX's prohibition against sex discrimination—proscribed

conduct that includes sexual harassment. See Franklin v.

Gwinnett County Pub. Schs., 503 U.S. 60, 75, 112 S.Ct. 1028,

1037-38, 117 L.Ed.2d 208 (1992); Kracunas, 119 F.3d at 88-

89. We disagree.

Title IX provides in pertinent part that

[n]Jo 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). Title [IX has been construed to prohibit

gender discrimination *117 against students and employees

alike in educational institutions that receive federal funding.

See Murray v. New York Univ. College of Dentistry, 57 F.3d

243, 248 (2d Cir.1995) (citing North Haven Bd. of Educ. v.

Bell, 456 U.S. 512, 520-34, 102 S.Ct. 1912, 1917-25, 72

L.Ed.2d 299 (1982)).

At issue in the present case is whether an entity such as

Rockland that (1) is a state-run clinic that receives federal

money, [FN3] and (2) permits student- interns from a college

with which it has no affiliation to perform volunteer field work

at its facility, is subject to Title [IX on the ground that it

operates an “education program or activity.”

FN3. We note that O'Connor's complaint

contains no allegation that Rockland receives any

A-17

federal funding. Instead, O'Connor refers to

federal funding only in her description of

Marymount, a party since dropped from the case.

However, because O'Connor's complaint does

allege that Rockland is an agency of New York

State, we will construe her complaint broadly to

allege that, as a state health-care agency,

Rockland receives federal money in connection

with medical services provided—an inference we

think equitable given that Rockland does not

contest on appeal the question of federal funding.

In Grove City College v. Bell, 465 U.S. 555, 571-75, 104

S.Ct. 1211, 1220- 22, 79 L.Ed.2d 516 (1984) the Supreme

Court considered the meaning of Title [X's phrase “education

program or activity” and defined it narrowly, holding that by

referring to particular activities or programs, Congress

intended that Title IX apply only to the particular program

receiving financial assistance. Thus, in Grove City, the Court

found that the receipt by students of federal grants did not

trigger institution-wide Title [IX coverage, but only coverage

of the school's financial aid program. Jd. at 573-74, 104 S.Ct.

at 1221-22.

In response to the Court's interpretation of Title [X, as well

as out of concern that the Grove City definition of “program or

activity” would be applied to similar language contained in §

504 of the Rehabilitation Act of 1973, the Age Discrimination

Act of 1975, and Title VI of the Civil Rights Act of 1964,

Congress passed the Civil Rights Restoration Act of 1987,

Pub.L. No. 100-259, Sec. 3(a), § 908, 102 Stat. 28, 28-29

(1988) (codified at 20 U.S.C. § 1687) (“the 1988

Amendment”), which amended each of the affected statutes,

A-18

including Title IX, by adding a section broadly redefining the

term “program or activity.” See S.Rep. No. 100-64, at 4 (1988)

reprinted in 1988 U.S.C.C.A.N. 3, 6; see also Cohen v. Brown

Univ., 991 F.2d 888, 894 (1st Cir.1993). The amendment to

Title IX provides in relevant part:

For the purposes of this chapter, the term “program or

activity” and “program” mean all of the operations of—

(1)(A) a department, agency, special purpose

district, or other instrumentality of a State or of a

local government; or

(B) the entity of such State or local government

that distributes such assistance and each such

department or agency ... to which the assistance

[to a State or local government] is extended;

(2)(A) a college, university, postsecondary

institution, or a public system of higher

education; or

(B) a local educational agency ..., system of

vocational education, or other school

system....any part of which is extended Federal

financial assistance.

20 U.S.C. § 1687. Following the 1988 Amendment, courts

have consistently interpreted Title IX to mean that if one arm

ofa university or state agency receives federal funds, the entire

entity is subject to Title [X's proscription against sex

discrimination. See Horner v. Kentucky High Sch. Athletic

Ass'n, 43 F.3d 265, 271 (6th Cir.1994); Cohen, 991 F.2d at

894.

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Ge AEORRI OL RR REE ERS HAO Rise CN A ERI ROAR RRL ETE IR BEEN EY SR EMER AEN: I A ES

A-19

[8][9] However, by modifying the phrase “program or

activity,” Congress left the modifier “education” intact, and

we are bound under ordinary rules of statutory construction to

give content to the entire phrase selected by Congress. See

Connecticut Dep't of Income Maintenance v. Heckler, 471

U.S. 524, 530 n. 15, 105 S.Ct. 2210, 2213 n. 15, 85 L.Ed.2d

577 (1985). In so doing, we think it evident that in order to

implicate Title [X in the first instance, an entity must have

features such that one could reasonably consider its mission to

be, at least in part, educational. That Congress intended this

interpretation can be discerned, if vaguely, in the following

*118 example of the effect of the new statute, contained in the

Senate Report accompanying the 1988 Amendment:

If a private hospital corporation is extended

federal assistance for its emergency rooms, the

pediatrics department, admissions, discharge

offices, etc., are covered under Title VI, section

504, and the Age Discrimination Act. Since Title

IX is limited to education programs or activities,

it would only apply to the students and employees

of educational programs operated by the hospital,

if any.

S.Rep. No. 100-64, at 18 (1988) reprinted in 1988

U.S.C.C.A.N. 3, 20. While expanding the reach of Title IX to

include all departments or branches of an educational

institution or program that receives federal funding, the

foregoing suggests to us that the 1988 Amendment did not

purport to alter the preliminary requirement that the entity

funded operate an “education program.”

Although the term “education” is not defined by the

regulations governing Title [X and has not been construed by

A-20

this court, O'Connor argues that because Rockland provides

its volunteers with some modicum of on-the-job training,

Rockland therefore provides vocational training, and, on that

basis, may be considered to operate an organized educational

program. We decline, however, to convert Rockland's

willingness to accept volunteers into conduct analogous to

administering an “education program” as contemplated by

Title IX.

Preliminarily, in light of O'Connor's contention that

Rockland's internship program is analogous to vocational

training, it is instructive to look to 34 C.F.R. § 106.2, which

defines for Title IX purposes the term “institution of

vocational education” as:

a school or institution (except an institution of

professional or undergraduate higher education)

which has as its primary purpose preparation of

students to pursue a technical, skilled, or

semiskilled occupation or trade ..., whether or not

the school or institution offers certificates,

diplomas, or degrees and whether or not it offers

fulltime study.

24 C.F.R. § 106.2(n) (emphasis supplied). Rockland plainly

does not satisfy this definition, as its “primary purpose” is in

no sense to educate: it accepts no tuition, has no teachers, has

no evaluation process, and requires no regular hours or course

of study for its volunteer workers.

Not only is Rockland's internship program not classifiable

as a vocational program, Rockland also cannot be said more

generally to operate an “education program” because the

institution maintains none of the characteristics associated

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with being an educator. The environment at Rockland is not,

for example, analogous to a teaching hospital's “mixed

employment-training context,” see Lipsett v. University of

Puerto Rico, 864 F.2d 881, 897 (1st Cir.1988); Henschke v.

New York Hosp.-Cornell Med. Ctr., 821 F.Supp. 166

(S.D.N.Y.1993). Nor is Rockland's acceptance of volunteers

comparable to running an educational or vocational program

at a state correctional facility, see, e.g., Jeldness v. Pearce, 30

F.3d 1220, (9th Cir.1994); Women Prisoners of the Dist. of

Columbia Dep't of Corrections v. District of Columbia, 899

F.Supp. 659, 668-69 (D.D.C.1995), as such programs

typically provide instructors, evaluations, and offer a

particular course of training.

Finally, the fact that Marymount operates an “education

program” may not be imputed to Rockland simply because

O'Connor was a student at the former while she performed

volunteer work with the latter. Factors that could lead to a

different conclusion simply are not present here: the two

entities have no institutional affiliation; there is no written

agreement binding the two entities in any way; no staff are

shared; no funds are circulated between them; and, indeed,

Marymount students had previously volunteered at Rockland

on only a few occasions. The only hint of a connection

between Marymount and Rockland lies in the fact that (1)

Marymount contacted Rockland for the purpose of placing

O'Connor in an internship, and (2) Marymount appears to base

its evaluation of its students’ performance during their

internships in part on an evaluation prepared by the person

who supervised the student on-site—which, in O'Connor's

case, would have been Lisa Punzone of Rockland. Such

connections are insufficient to establish Rockland *119 as an

agent or arm of Marymount for Title [IX purposes. Rather, we

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think it clear that Rockland is a state- funded psychiatric

hospital, with no affiliation to any educational institution

whatsoever, that allows volunteers from a nearby college to

perform (with minimal supervision) volunteer work at its

facility. Rockland thus does not conduct an “education

program or activity,” and O'Connor's Title IX claim was

properly dismissed.

CONCLUSION

By allowing an intern to perform the fieldwork required of

her by the wholly unaffiliated college she attends, Rockland is

not transformed into an employer under Title VII or into an

administrator of an education program or activity under Title

IX. We conclude by saying only that we are not unsympathetic

to O'Connor's situation. We recognize, for example, that from

her perspective, her success at Marymount was dependent to

some degree on successfully completing her internship with

Rockland, and that her dependency on Rockland made her

vulnerable to continued harassment much as an employee

dependent on a regular wage can be vulnerable to ongoing

misconduct. In a similar vein, we recognize that O'Connor

was not in quite the same position to simply walk away from

the alleged harassment as are many other volunteers.

However, it is for Congress, if it should choose to do so, and

not this court, to provide a remedy under either Title VII or

Title IX for plaintiffs in O'Connor's position. We therefore

affirm the judgment of the district court.

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APPENDIX B

United States Bistrict Court

SOUTHERN DISTRICT OF NEW YORK

U.S. DISTRICT COURT

FILED MAY 23 1996

S.D.O.N.Y//stamp

Bridget O’Connor,

Plaintiff,

-against-

Dr. James Davis, Rockland Psychiatric Center,

The State of New York, et al.,

Defendants.

95 CIVIL 1722 (CLB)

JUDGMENT

Whereas the above entitled action having been assigned to

the Honorable Charles L. Brieant, U.S.D.J., and the Court

thereafter on August 7, 1995, discontinued the action with

prejudice and without costs or attorney’s fees as to defendant

Virginia Kaiser, individually and as The Coordinator, Social

Work Field Instruction for Marymount College, and the Court

thereafter on January 23, 1996, discontinued the action with

prejudice and without costs or attorney’s fees as against

defendants Dr. James Davis, individually, Lisa Punzone,

individually, James Wagner, individually and as Program

Director for the Rockland Psychiatric Center, and Madeline

Connolly, individually and as Director of Social Services for

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the Rockland Psychiatric Center, and the Court thereafter on

May 21, 1996, having handed down its memorandum and

order granting summary judgment in favor of defendants

Rockland Psychiatric Center and The State of New York, it is,

ORDERED, ADJUDGED AND DECREED: That the

Complaint be and it is hereby dismissed as to all defendants.

Dated: White Plains, New York

May 23, 1996

i M. Parkison/si

Clerk

A-25

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

BRIDGET O’CONNOR,

Plaintiff,

* against »

DR JAMES DAVIS, ROCKLAND PSYCHIATRIC

CENTER, THE STATE OF NEW YORK et al.,

Defendants.

95 Civ. 1722 (CLB)

MEMORANDUM & ORDER

Brieant, J.

By motion filed March 29, 1996 and fully submitted on

May 17, 1996, in this action brought for damages for sexual

harassment pursuant to Title VII of the Civil Rights Act of

1964, 42 U.S.C. § 2000(e) [sic] et. seg. and Title IX, 20 U.S.C.

§ 1681 et. seg., as well as pursuant to 42 U.S.C. § 1983,

defendants Rockland Psychiatric Center and the State of New

York seek summary judgment in their favor.

This action has been dismissed as to all of the individual

defendants and Marymount College, and plaintiff has

discontinued so much of her claims as are based on 42 U.S. §

1983. See Dickinson Affidavit 48.

At all relevant times plaintiff Bridget O'Connor was a

student at Marymount College in Tarrytown, New York

majoring in social work. As a social work major, plaintiff was

required to perform 100 hours of field work in her junior year

A-26

and 200 hours as a senior. Students involved in such work

would express an interest in a particular area of social work

and Marymount would attempt to place them as volunteer

interns at a stable institution.

During her senior year at Marymount, plaintiff was placed

at Rockland Psychiatric Center to satisfy her field work

requirement leading to her degree. Prior to beginning her

internship, plaintiff completed and signed a volunteer

enrollment form, a volunteer service application, a statement

of confidentiality for volunteers, and a criminal history for

volunteers. At the start of work on each day, plaintiff signed in

on the volunteer sign in sheet. Plaintiff was not compensated

in any way by Rockland Psychiatric Center in connection her

services there. During her senior year at Marymount, plaintiff

did receive funds from the federal government for

participating in a work study program. Neither the State of

New York nor Rockland Psychiatric Center was aware of that

the plaintiff was receiving such funds, and they did not

participate in the distribution of those funds in any way.

As an intern, plaintiff was supervised and evaluated by

Lisa Punzone, a clinical social worker at the Rockland

Psychiatric Center. Ms. Punzone’s evaluation of the plaintiff

was provided to Marymount for consideration in determining

the grade that the plaintiff would receive from the College for

her field work. In her capacity as an intern at Rockland

Psychiatric Center, plaintiff attended morning staff meetings

with social workers and other interns to discuss patient

treatment, progress and problems. Plaintiff was also assigned

a number of patents with whom she would meet regularly, for

one-on-one counseling sessions. Plaintiff also participated in

group therapy sessions and provided input on patient

treatment plans created by state employees.

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Within the first week of her internship at the Center,

plaintiff encountered defendant Dr. James Davis, a treating

psychiatrist at the Center. Dr. Davis began referring to the

plaintiff as “Miss Sexual Harassment”. On one occasion, with

Ms Punzone present, Dr. Davis suggested to the plaintiff that

she was the model in a newspaper lingerie ad that he showed

her. On November 16, 1994, plaintiff informed Ms. Punzone’s

that Davis had told her that she had to take her clothes off prior

to meeting with him, adding: “don’t you always take your

clothes offat the doctor’s office?” When the plaintiff informed

Ms. Punzone of these incidents, Punzone allegedly told her to

“just ignore it.” Ms. Punzone maintains however, that she

asked the plaintiff if she wanted the incident reported to

anyone, and plaintiff specifically requested that it not be

reported.

This Court concludes that as a matter of law Ms. O’ Connor

was a volunteer at Rockland Psychiatric Center and that her

relationship with the Center was not such as to bring her within

the definition of an employee for purposes of Title VII. As

noted earlier, she was a full-time student at Marymount

College. The action under Title [IX has been discontinued as

against the College. Her voluntary status at the Psychiatric

Center is set forth in all of the documents having to do with her

service there, including as noted above, her volunteer

enrollment form, her volunteer service application, her

statement of confidentiality for volunteers and her

certification of no criminal history. These forms are relatively

standard and are used regularly in various state service

arrangements for volunteers. See Exhibits to Connolly

Affidavit. In addition, plaintiff was invited to an orientation

session for volunteers and signed in daily on the Volunteer

Services Sign-In records for the months of September 1994

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through December 1994. She received a letter welcoming her

to volunteer service from the hospital. All surrounding facts

justify an inference that Ms. O’Connor was a volunteer. She

was not paid by the Center and received no funds or other

compensatory benefits. There is no evidence that the Center or

its officials knew that plaintiff was receiving money through

Marymount College as a federal grantee. She received no

benefits such as health insurance, vacation pay or sick pay and

was not a member of the employee bargaining unit. Plaintiff

was not subject to a probation period and did not receive an

individual office. She possessed less skill than a regular social

worker in that she had not yet obtained her college or graduate

degree. Her only purpose for being at the hospital was to

obtain credentials with Marymount which would permit the

College to grant her a degree, and not to work for money.

Plaintiff in conjunction with Marymount chose the number of

hours she would volunteer, in her case 200 hours per semester,

and chose the days that she would be serving, with the

opportunity to make up for those days on which she arrived

late.

The Rockland Psychiatric Center is not an educational

institution and is not affiliated in any way with Marymount

College, except that it accepts volunteers from Marymount

and elsewhere.

The facts of Ms. O’ Connor's relationship with the Hospital

cannot as a matter of law rise to the common law agency test

used by our Court of Appeals to determine if a person is an

employee. See Frankel v. Bally Inc., 987 F.2d 86 (2d Cir.

1986), Community For Creative Non-Violence v. Reid, 490

U.S. 730 (1989) at 741-52. To treat volunteers in the context of

this case (2 days per week during 2-1/2 months) as employees

would have undesirable long range effects on the ability of

A-29

colleges to place students in a situation where they could

complete their field work, which is essential to most

educational programs, without imposing undue burdens on a

working hospital.

Because the Court regards the lack of status of the plaintiff

as an employee within Title VII as controlling, we do not reach

the contentions made in support of this motion that the

allegations do not rise to the level of sexual harassment. The

Court concludes that Title IX is inapplicable to the Center and

believes that it was cited in the complaint at a time when the

defendants included Marymount College.

The motion is granted. The Clerk shall file a final

judgment.

SO ORDERED.

Dated: White Plains, New York

May 20, 1996

CHARLES L. BRIEANT/signature

Charles L. Brieant, U.S.D.J.