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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1998
- **Citation:** 522 U.S. 1114

## Text

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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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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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

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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

A-21

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

A-22

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

A-24

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

A-28

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386013_1929%3A1. Public record. Not legal advice.