Pejovic Et Al V State University of New York at Albany Et L

Case 1:17-cv-01092-TJM-DJS Document 1 Filed 09/29/17 Page 1 of 62
UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK
CASE NO.:
ISIDORA PEJOVIC, CHAE BEAN KANG,

ALBA SALA HUERTA, and CHASSIDY KING, 1:17-cv-1092 (TJM/DJS)
individually and on behalf of all those similarly
situated, and GORDON GRAHAM,
Plaintiffs,
vs.
STATE UNIVERSITY OF NEW YORK AT

ALBANY, and MARK BENSON,
Defendants.
_____________________________________________
COMPLAINT AND DEMAND FOR JURY TRIAL
This is an action based on long-standing and ongoing violations of Title IX of the
Education Amendments of 1972 by the State University of New York at Albany (SUNY
Albany), and on age discrimination by SUNY Albany, and by its Director of Athletics
individually. In March 2016, Defendant SUNY Albany eliminated its womens tennis team
just as the players were preparing to compete in the America East Conference Championships.
Although entirely consistent with the manner in which Defendant SUNY Albany has
discriminated against female athletes in the past, the decision to disband the team nevertheless
came as a surprise to the student-athletes and their coach. Shortly after eliminating the
womens program, SUNY Albany fired the teams head coach because its Athletic Director
thought he was old enough to retire.
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The decision to end womens tennis at SUNY Albany left the players all but one of
whom were foreign students in limbo. For the foreign players, the option was to withdraw
from Defendant SUNY Albany, give-up their visas, and return to their countries of origin,
only to restart the process of applying to universities with the hope of gaining admission,
obtaining scholarships, winning a spot on another tennis team, and securing a new visa, all
before the next season began. The women could have stayed at SUNY Albany and kept their
scholarships. But these women are athletes, who trained from an early age to play tennis, who
were recruited by SUNY Albany to play tennis, and who came to Defendants campus to play
tennis. The choice to stay and forego their dream a choice that their male counterparts would
never be required to make was not a real choice or a viable option for these Plaintiffs.
Because Defendant SUNY Albany persists in its misconduct, this action is brought by
the female tennis players in their individual capacities as well as on behalf of all similarly
situated student-athletes, as well as by their former Head Coach, Plaintiff Gordon Graham, to
redress the undisputed historic and ongoing discriminatory conduct perpetrated by Defendant
SUNY Albany. For his part, Plaintiff Gordon Graham also sues on the ground that Defendants
have discriminated against him on the basis of his age in violation of federal and New York
State law.
STATEMENT OF THE CASE
1. Defendant SUNY Albany holds itself out as a university committed to
providing top-quality intercollegiate sports programs. The university uses this distinction as
part of its efforts to recruit top student athletes and coaching staff. Under Title IX of the
Education Amendments of 1972, 20 U.S.C. 1681 et seq., and the regulations adopted
pursuant to 34 C.F.R. Part 106 (collectively Title IX), Defendant SUNY Albany must
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provide equality of opportunity for women and men in every program it offers, including
equal opportunities for male and female athletes in intercollegiate sports programs.
2. Defendant SUNY Albany discriminates against women on the basis of their
sex by, among other things, intentionally providing substantially fewer and poorer
opportunities for women in sports than for male students; by willfully failing to improve
womens intercollegiate sports opportunities or add teams; and by willfully or purposefully
neglecting even to consider or determine which sports opportunities women want and in
which they could participate. This is not a case where SUNY Albany tried to comply with
the law and merely missed the mark; it willfully ignored the law.
3. Defendant SUNY Albany compounded its historic Title IX wrongs in March
2016, by terminating the nine-member womens varsity tennis team and with it all
opportunities for women to play intercollegiate tennis at SUNY Albany. It piled on to these
violations by later terminating the teams coach on the basis of his age.
4. Following a complaint filed by Plaintiff Graham, the womens former tennis
coach, the U.S. Department of Educations Office of Civil Rights (OCR) investigated
SUNY Albanys intercollegiate athletics programs. OCRs recently published findings
describe Defendant SUNY Albanys Title IX violations (Official Findings), including the
termination of the womens tennis program. These findings resulted in a toothless negotiated
agreement between the Department of Education and SUNY Albany (Resolution
Agreement). See Exhibit A.
5. The Resolution Agreement only requires that Defendant SUNY Albany stop
violating Title IX no later than the 2020-2021 academic year. The Resolution Agreement
provides for no sanctions against Defendant SUNY Albany for its present misconduct.
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Neither does the Resolution Agreement provide any relief for the irreparable harms being
done in the meantime to Plaintiffs or to the Plaintiff Class by the historic and continuing
unlawful acts of Defendant SUNY Albany. Sadly, the Resolution Agreement does not
contain a sanctions provision if Defendant SUNY Albany fails to comply with Title IX on or
before the 2020-2021 academic year. Plaintiffs accordingly bring this private cause of action
for specific relief for themselves and to secure relief for the Plaintiff Class.
6. Defendant SUNY Albany intentionally concealed its decision to terminate the
womens tennis program in order to deprive Plaintiffs of any effective opportunity to contest
the decision. This secret decision also denied Plaintiffs any opportunity to plan for, protect
themselves against, or mitigate the sudden and devastating impacts on their personal and
academic lives and sports careers.
7. Defendant SUNY Albanys termination of the womens varsity tennis
program also violated a prior Stipulation and Order of the Albany County Supreme Court
signed by the Honorable Justice Lawrence Kahn, now a Senior Judge of this Court, to which
SUNY Albany was a party (Prior Order). See Exhibit B.
8. Plaintiff Graham was also denied his right to freedom from discrimination in
his employment based upon his age by Defendant SUNY Albany and by Defendant Mark
Benson, individually. Defendants employee and agent, Mark Benson, demoted, humiliated,
and then fired Graham after terminating the tennis program because, as Benson stated
publicly, the 65-year old coach was old enough to retire.
9. Undersigned counsel was first retained by some of the Plaintiffs in April 2017,
on a pro bono basis. Counsel promptly contacted SUNYs Chancellor, Nancy Zimpher, and
then SUNY Albany, to request reconsideration of its unlawful termination of womens tennis.
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The Administration of SUNY Albany, including its Acting President, advised counsel that it
would stand by its decision to eliminate the team.
10. Plaintiffs seek to stop Defendants from discriminating against them and all
others similarly situated. They seek injunctive relief to reinstate the womens tennis program
and supervise an accelerated Title IX compliance program, monetary damages for
compensation of injury caused by Defendants discrimination on the basis of sex and age,
attorneys' fees and costs, and such other relief as may be available from this Court.
JURISDICTION AND VENUE
11. This action arises under Title IX of the Education Amendments of 1972,
20 U.S.C. 1681 et seq., and the regulations and policies promulgated pursuant to that
law, as well as under the Equal Protection Clause of the Fourteenth Amendment to the
United States Constitution, as enforced through 42 U.S.C. 1983 and 1988. This Court
has jurisdiction over Plaintiffs' federal law claims pursuant to 28 U.S.C. 1331,
1343(3), and 1343(4).
12. This action also arises under Title 15 of the Executive Law of the State of
New York (Human Rights Law). This Court has supplemental jurisdiction to enforce
New Yorks Human Rights Law and the Prior Order of the New York Supreme Court,
pursuant to 28 U.S.C. Section 1367.
13. Declaratory and other relief is authorized pursuant to 28 U.S.C. 2201 and
28 U.S.C. 2202 to obtain the correct interpretation of the legal requirements described in
this Complaint, which are necessary and appropriate to determine the respective rights and
duties of the parties to this action.
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14. Venue is proper in the United States District Court for the Northern District
of New York pursuant to 28 U.S.C. 1391(b) because the events from which Plaintiffs
claims arise occurred in Albany, New York, which is within the jurisdiction of this Court.
THE PARTIES
The Women Plaintiffs
15. Every spot on the womens tennis team represents a lifetime of dreams and the
sacrifice that it took to make those dreams a reality, including overcoming life-changing
personal, family, economic, and physical challenges both on and off the tennis court. It should
be noted that the women Plaintiffs here are not in this alone. While not parties to this lawsuit,
their families have done their best to encourage their daughters dreams and support them
through their struggles, and suffer as only parents can, when those dreams are shattered.
16. The womens tennis team at Defendant SUNY Albany consisted of a dedicated
65-year old coach and a group of student-athletes who had developed themselves into
community and academic leaders.
17. Plaintiff Isidora Pejovic is a rising junior at Defendant SUNY Albany. She
joined the womens team her freshman year in 2014 and played until Defendant SUNY Albany
wrongfully terminated the team. Isidora played tennis in her native Serbia beginning at the age
of five. At thirteen, she began studying English to pursue her goal of coming to the United
States the only country where a young woman like her could play competitive tennis while
obtaining a world-class education. Eventually, Isidora became one of the top players in her
country. She passed her Collegiate Scholastic Aptitude Tests in English and successfully
navigated the difficult process of obtaining a scarce student visa. Her visa restricted her to
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attending only one school - Defendant SUNY Albany. She was recruited by SUNY Albany,
and chose it because of the competitive opportunities, great coaching, and the full scholarship it
offered. After struggling scholastically and athletically in her first semester, Isidora emerged as
a star player for the SUNY Albany Great Danes in the Spring of 2015, and went on to win many
matches over the following year, including the clinching match in the America East
Championship Tournament in May 2016.
18. After Defendant SUNY Albany disbanded the team, Plaintiff Pejovic received
interest from other schools but did not have the resources or ability to transfer. To do so, she
would have had to apply for and obtain admission to another institution with room for her on its
women's tennis program, obtain a scholarship offer, withdraw from Defendant SUNY Albany,
return to Serbia, forfeit her student visa, and re-apply for a new visa to attend a specific new
school. Even if she could get a new visa, which was far from a forgone conclusion in her
mind, there could be no assurance that the tennis team at the new college would still have
scholarships or even room for her by the time she could arrive on campus. Moreover, under the
rules of the National Collegiate Athletic Association ("NCAA"), a student athlete in an NCAA
Division I program such as Defendant SUNY Albany is only allowed a single transfer to a
Division I school. These risks, which were generally applicable to all of the women Plaintiffs,
are hereafter referred to as the Transfer Risks. Plaintiff Pejovic resides in Albany, New York,
which is within this Courts jurisdiction.
19. Plaintiff Chae Bean Kang is a rising senior at Defendant SUNY Albany.
Plaintiff Kang joined the womens tennis team in her freshman year in 2014 and continued to
play until the team was wrongfully terminated. Plaintiff Graham recognized Bean as a gifted
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athlete who only needed match experience to become a truly competitive NCAA Division I
tennis player. A native of South Korea, her family moved often to provide her with
opportunities to refine and develop her talent and learn English. A highly sought-after recruit,
Bean was persuaded to come to Defendant SUNY Albany. Once there, she established an
excellent academic record and was expected to break into the regular tennis team lineup as a
junior. Because Plaintiff Kang had fallen in love with the university and established a place for
herself in the community over her first two years, the shocking betrayal of her dreams and goals
with only two years of eligibility remaining, in addition to the Transfer Risks, left her with no
practical choice to pursue her tennis career. Plaintiff Kang resides in Albany, New York, which
is within this Courts jurisdiction.
20. Plaintiff Alba Sala Huerta was a junior at Defendant SUNY Albany and a
member of its womens tennis team when Defendants suddenly and without warning ended its
existence. Plaintiff Graham described Alba Sala as one of the most intelligent tennis players he
had seen in thirty-five years of coaching champions in the sport. She was a two-time All-
America East player and a three-time Intercollegiate Tennis Association All-Academic award
winner. She was a fan favorite and had the chance, if she had been able to play in her senior
year, to become one of SUNY Albanys all-time greatest players in terms of total matches
won. Alba came to Albany from her native Spain for the same reasons as her teammates she
was a champion player and top student who wanted to study at a university where she could
play competitive tennis while obtaining a world-class education. At age sixteen, Alba
engaged an agency to help her secure a scholarship. Both Iowa State University and Bryant
University offered her scholarships, but like her teammates, Alba ultimately chose Defendant
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SUNY Albany. She began her studies and joined the tennis team in the fall semester of 2013
and graduated in May of 2017.
21. The summer after Defendant SUNY Albany terminated womens tennis, the
University of Massachusetts invited Alba to join its team. As with her teammates, however, the
Transfer Risks posed too great an obstacle and would have resulted in further harm through the
loss of course credits and the requirement that she complete an additional semester at her own
cost and expense. Because she lost her senior year of eligibility, Plaintiff Sala Huerta was also
denied an extra year of graduate eligibility and missed the possibility of additional employment,
potentially with a full scholarship, as a graduate tennis assistant coach at Defendant SUNY
Albany or elsewhere. Plaintiff Sala Huerta resides in Albany, New York, which is within this
Courts jurisdiction.
22. Plaintiff Chassidy King was a junior at Defendant SUNY Albany and a member
of the womens tennis team from 2013 until Defendant suddenly and without warning ended the
teams existence. Chassidy was the most athletically gifted player that Plaintiff Graham had
coached in thirty-five years. The only U.S. Citizen on the team, she grew up in Antigua and
lacked only match experience when she came to SUNY Albany on a tennis scholarship as a
freshman. Through her passionate effort and skill, she had just earned a spot on the
team's lineup, when Defendant SUNY Albany terminated the womens tennis team. In addition
to tennis, Plaintiff King served as a role model for many youngsters in the Albany area, working
with children in the 15-LOVE program, a local community initiative that helps inner-city
children through after-school education enrichment and tennis. She was also enrolled in the
universitys intensive nursing preparation program and so could not withdraw to play tennis at
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another school. Plaintiff King resides in Philadelphia, Pennsylvania, but submits to the Courts
jurisdiction for purposes of this lawsuit.
The Womens Tennis Teams Coach
23. Plaintiff Gordon Graham is the former Head Coach of Defendant SUNY
Albanys womens tennis team. He originally came to SUNY Albany to rebuild the women's
tennis program. Plaintiff Graham was in his fifth year as Head Coach at the time that Defendant
unlawfully terminated the team. Shortly after the universitys decision, Graham led his now
disbanded team to victory at the America East Conference Championship. He has
a singularly distinguished resume of coaching championship womens tennis teams at the
University of the Pacific and Harvard University, where his teams won nine Ivy League
Championships. He has been Pacific Coast Athletic Association Coach of the Year,
Intercollegiate Tennis Association Coach of the Year for the East Region, and ITCA Coach of
the Year for the Northwest Region. Coach Graham founded The Tennis Camps at Harvard,
which served 1200 campers each summer. He also founded a community-based tennis program
in greater Boston that serves over 500 juniors and adults. Plaintiff Graham resides in Albany,
New York, which is within this Courts jurisdiction.
Defendant SUNY Albany
24. Defendant SUNY Albany is a principal campus of the State University of New
York (SUNY), which is an Educational Corporation formed and existing under the Education
Law of the State of New York. SUNY Albanys campus and principal place of business is
located at 1400 Washington Avenue, Albany, New York, which is within this Courts
jurisdiction.
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25. Although not individually named as defendants in this action, Defendant SUNY
Albany was aided and abetted in its discriminatory conduct by a group of high-ranking
university officers and employees whose identities and roles in this lawsuit are outlined below:
Nancy L. Zimpher was, at all relevant times, the Chancellor of SUNY and was an
agent and employee of SUNY with authority over and responsibility for the
administration of Defendant SUNY Albany;
Robert J. Jones became the President of Defendant SUNY Albany in January 2013.
In July 2016, after only three and one half years in that job and following the
termination of the womens tennis program, he left. With respect to his
responsibilities as President, Jones was an agent and employee of SUNY Albany
with authority and responsibility for the administration of SUNY Albany including
its athletics programs and was, at all relevant times, under the direct supervision and
control of Chancellor Nancy L. Zimpher;
Professor James R. Stellar acted as the Interim President of SUNY Albany from
September 2016 until September 2017. In his position and with respect to his
responsibilities as Interim President, Professor Stellar was an agent and employee of
SUNY Albany with authority and responsibility for the administration of SUNY
Albany including its athletics programs and, was at all relevant times, under the
direct supervision and control of Nancy L. Zimpher; and
Chantelle Cleary is the Assistant Vice President for Equity and Compliance at SUNY
Albany and holds the title of Title IX Coordinator. Upon information and belief,
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Defendant Cleary is an attorney licensed to practice in the State of New York. In her
position and with respect to her responsibilities, Cleary reported to and was under
the supervision and control of President Jones and/or Interim President Stellar at all
relevant times.
Defendant Mark Benson
26. Defendant Mark Benson is and has been the Director of Athletics of SUNY
Albany, since 2014. Defendant Benson is an employee and agent of Defendant SUNY Albany
who reported directly to and was under the direct supervision and control of Robert J. Jones or
James R. Stellar at all times relevant to this Complaint.
ALLEGATIONS AS TO THE PLAINTIFF CLASS
27. The named women Plaintiffs (Pejovic, Kang, Sala Huerta, and King) bring this
action on behalf of themselves and on behalf of a class of all those similarly situated pursuant
to Federal Rule of Civil Procedure 23(a) and (b)(2).
28. The women Plaintiffs seek to represent a class of all present, prospective, and
future female students at SUNY Albany who want to participate in the recently eliminated
varsity sport of women's tennis or who want to participate in other varsity sports not offered to
women by SUNY Albany. They also seek to represent those female student athletes who are
deterred from enrolling at SUNY Albany because it does not offer women the sport they wish
to play.
29. Each of the named women Plaintiffs is a member of the proposed class and has
been or will be injured by Defendant SUNY Albanys sex discrimination and failure to provide
female students with an opportunity to participate in varsity intercollegiate athletics at SUNY
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Albany. Defendant SUNY Albanys continued elimination of the women's varsity tennis
program will exacerbate the discrimination and denial of opportunity by eliminating female
athletic participation opportunities at SUNY Albany.
30. The women Plaintiffs seek to represent the proposed class because joinder of all
class members and all persons harmed by Defendant SUNY Albanys failure to provide
opportunity to participate in varsity intercollegiate athletics would be impossible.
31. The proposed class is known to exist but the identity of its members is and will
continue to change without specific names during this litigation because of the nature of college
enrollment and athletic participation. Students at SUNY Albany generally aim to graduate four
years after they matriculate. Athletes are eligible for only four years, according to the rules of
the National Collegiate Athletic Association (NCAA). Accordingly, the members of the class
harmed by Defendant SUNY Albanys discriminatory actions constantly change as each class
of students graduate and as another class of students enrolls at SUNY Albany.
32. Not all members of the plaintiff class are currently identifiable because the class
includes prospective and future students who will enroll at SUNY Albany during this litigation
or who will be deterred from enrolling at SUNY Albany because of Defendant SUNY Albanys
failure to provide athletic participation opportunities for female student-athletes, including the
sports they want to play.
33. Not all members of the plaintiff class are currently identifiable because the class
includes not only tennis players, but also all present, prospective, and future female students
who want to participate in other varsity intercollegiate sports that are not offered at Defendant
SUNY Albany.
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34. Upon information and belief, Defendant SUNY Albany has never surveyed its
present or prospective student body to assess athletic interests and abilities. Moreover, because
SUNY Albany recruits high school students and transfer students from around the world, SUNY
Albany could increase and thus realize athletic participation opportunities for female students
by starting virtually any new womens varsity sports team and then recruiting women to enroll
and participate.
35. It is unknown how many present, prospective, or future female student-athletes
would enroll at Defendant SUNY Albany or would participate in athletics at the university if it
stopped discriminating against women. The hundreds of additional student-athletes who might
apply, who might be recruited, and who might participate in athletics at Defendant SUNY
Albany if, for example, it added the approximately ninety-seven athletic opportunities necessary
to reach proportional equality of opportunity for women participating in intercollegiate sports
at Defendant SUNY Albany, are too numerous to make joinder practicable.
36. The women Plaintiffs satisfy the "commonality" requirement of Federal Rule
of Civil Procedure 23(a)(2) because they share questions of law and fact in common with the
proposed class, particularly whether Defendant SUNY Albany is violating Title IX by failing to
provide female student-athletes with an opportunity to participate in varsity intercollegiate
athletics. Because Title IX requires comparison of the sex-segregated men's and women's
athletic opportunities as a whole, the Title IX issues in this action are inherently class-based.
37. The women Plaintiffs satisfy the "typicality" requirement of Federal Rule of
Civil Procedure 23(a)(3) because their claims are typical of those of the proposed class. They
all have been denied, are continuing to be denied, or will be denied an opportunity to participate
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in varsity intercollegiate athletics at Defendant SUNY Albany because of its ongoing sex
discrimination. All of them want the Court to restrain Defendant SUNY Albany from continuing
its elimination of any women's varsity sports opportunities and to require it to restore and
reinstate tennis and add more women's varsity sports.
38. The women Plaintiffs are members of the proposed class because each: (a) is
or was a female student-athlete at SUNY Albany, (b) is or was a former member of its
women's tennis team, (c) was or is currently being subjected to Defendant SUNY Albanys
sex-based-discrimination, and (d) was or currently is being denied athletic participation
opportunities provided to male student athletes at Defendant SUNY Albany, and they will
fairly and adequately represent the interests of the class. They intend to prosecute this action
vigorously in order to secure fair and adequate injunctive relief for the entire class.
39. The women Plaintiffs satisfy the requirement that class certification would be
superior to other methods available for the fair and efficient adjudication of the controversy
required by Federal Rule of Civil Procedure 23(b)(2) because Defendant SUNY Albany has
acted or refused to act on grounds generally applicable to the class - denying female student-
athletes an opportunity to participate in varsity intercollegiate athletics, including but not limited
to, womens varsity tennis, thereby making final declaratory and injunctive relief appropriate
with respect to the class as a whole.
40. Undersigned counsel has devoted substantial and sufficient efforts to identify
and investigate potential claims in this action, to developing knowledge of the applicable law,
and has sufficient resources to commit to representing this putative class as interim counsel
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under Federal Rule of Civil Procedure 23(g)(3) until such time as this Court determines whether
to certify the action as a class action.
GENERAL ALLEGATIONS
Financial Pressures Lay the Groundwork for Eliminating Womens Tennis
41. Defendant SUNY Albany promotes its athletic programs in order to recruit top
athletes. Its website lauds the significant dollars invested by the university on its athletic
facilities: The University at Albanys $19 million multi-sport complex was completed in
September 2013. The state-of-the-art 8,500-seat facility includes a distinct press level with four
luxury suites, print media area, and booths for radio, television, coaches, and replay, as well as
20 high-definition televisions distributed throughout the level. 1
42. Defendant SUNY Albanys athletics department has been under financial
pressure in recent years. Exacerbating that pressure, in January 2013, while the expensive new
sports complex was still being built, the New York Football Giants announced that after sixteen
years, they would no longer conduct summer drills at the campus because it lacked an indoor
football field in which to practice on rainy days.
43. In 2014, Defendant SUNY Albany hired Mark Benson as its Athletics Director.
Benson had never been employed as an athletic director at any school, at any level, let alone at
an NCAA Division I program. Defendant SUNY Albany hired Benson because of his purported
ability to raise money from private contributors and pack stadiums with paying fans.
1. 1
www.ualbanysports.com/ViewArticle.dbml!?&DB_OEM_ID=15800&ATCLID=209273988
(last visited September 12, 2017)
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44. For his part, Benson acknowledged the financial pressures facing the Athletics
Department but assured the coaches of all of the intercollegiate teams that he was not here to
cut teams.
45. Bensons efforts failed to regularly pack the football stadium at Defendant
SUNY Albany which, upon information and belief, has an 8,500-seat capacity which can be
expanded to 24,000 seats. Upon further information and belief, Benson has only filled the 8,500
seats three times since he joined Defendant SUNY Albany in 2014. 2
46. Upon information and belief, the annual operating budget for SUNY Albany is
more than five hundred forty million dollars. 3
The Department of Education Cites Defendant SUNY Albany
47. A Policy Interpretation issued by OCR in 1979 and codified at 44 Fed. Reg. at
71418 (the "OCR Policy Interpretation"), sets forth three areas of compliance under Title IX:
(1) equal athletic financial assistance; (2) equal treatment and benefits for athletic teams; and
(3) effective accommodation of student interests and abilities. This lawsuit is about effective
accommodation only. The OCR Policy Interpretation provides three ways -- commonly
referred to as prongs one, two, and three -- for a university to comply with the requirement to
provide effective accommodation of students' interests and abilities:
(1) Whether intercollegiate level participation opportunities for male and

female students are provided in numbers substantially proportionate to their respective
enrollments; or
2
https://en.wikipedia.org/wiki/Bob Ford Field (last visited September 23, 2017)
3
https://en.wikipedia.org/wiki/State University of New York (last visited September 12, 2017).
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(2) Where the members of one sex have been and are underrepresented
among intercollegiate athletes, whether the institution can show a history and
continuing practice of program expansion which is demonstrably responsive to the
developing interest and abilities of the members of that sex; or
(3) Where the members of one sex are underrepresented among

intercollegiate athletes, and the institution cannot show a continuing practice of program
expansion such as that cited above, whether it can be demonstrated that the interests and
abilities of the members of that sex have been fully and effectively accommodated by
the present program. Id.
48. The National Association of College and University Attorneys (NACUA)
publishes and updates authoritative legal guidance on, among other matters, the practice of Title
IX compliance. Upon knowledge and belief this guidance is widely available to attorneys with
responsibilities as legal counsel in universities, such as Defendant SUNY Albany, its President
James Stellar, its Athletic Director Mark Benson, and its Assistant Vice President and Title IX
Coordinator Chantelle Cleary.
49. The edition of NACUA Notes published as of January 22, 2010, is
representative of the widely-published guidance that NACUA promulgates to universities across
the nation on the important topic of Title IX, stating under the topic The Title IX Implications
of Eliminating an Intercollegiate Sports Team, that
If an institution chooses to eliminate an intercollegiate team from

the underrepresented sex, then it must do so in a manner that ensures
substantial proportionality.
If an institution eliminates a team and does not replace it with a team

that provides greater participation opportunities, then it is legally
impossible to comply with part two (History & Continuing Practice
of Program Expansion) of the three-part test. As explained above,
part two requires an institution to demonstrate a history and
continuing practice of program expansion for the underrepresented
sex. Yet, if a college or university is eliminating a team for the
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underrepresented sex, it is necessarily reducing, not expanding

opportunities.
Similarly, if an institution eliminates a team [of the

underrepresented sex], it is legally impossible to comply with part
three (Fully Accommodating Interests & Abilities) of the three-
part test. As detailed previously, part three of the three-part test
requires an institution to demonstrate that its current selection of
sports fully and effectively accommodates the interests of the
underrepresented sex. However, regardless of whether one uses the
narrow definition of the Bush Administration or the broader
definition of the Obama Administration, an institution that has
eliminated a team cannot prove full and effective accommodation.
Quite simply, the fact that the institution recently fielded an
intercollegiate team demonstrates that there is interest and ability in
the sport as well as an expectation of reasonable competition. The
institution really has no viable claim otherwise.
NACUANOTES, June 22, 2010 Vol. 8 No. 10 at 4,5.
50. As the following excerpts from its Official Findings attest, OCR has determined
SUNY Albany to be in violation of Title IX in all three prongs of the test for compliance, and
has found that the termination of the womens tennis team is itself a violation of title IX.
1. OCR determined that in academic year 2015-2016 [the school

year in which Womens Tennis was terminated]in order to
achieve exact proportionality with male opportunities and
overall enrollment, female athletic opportunities would [have
needed] to be increased by approximately 55 for a total of 310.
OCR determined that the University does not satisfy Part One
[of the Three Part Test of compliance] for academic year 2015-
2016. Official Findings, p.5.
2. OCR determined that in academic year 2016-2017female

athletic opportunities would [have needed] to be increased by
approximately 97 for a total of 345. OCR determined that the
University does not satisfy Part One for academic year 2016-
2017. Id.
3. The University last added a womens sport to its athletic

program during 1995-1997, even though the number of female
athletes continues to be disproportionate to enrollment.
Additionally, OCR determined that the University eliminated
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womens tennis effective at the conclusion of the 2015-2016

season. Based on this information, OCR determined that the
University has not demonstrated a record of adding
intercollegiate teams, or upgrading teams to intercollegiate
status, for the underrepresented sex. Official Findings, p.6.
(footnote omitted)
4. OCR determined that during academic year 2015-2016, the

University discontinued the womens tennis team, despite
demonstrated interest and ability of the University students.
***** Based on the foregoing, OCR determined that University
has not demonstrated a history of program expansion, and there
is no policy or procedure for requesting the addition of sports.
Therefore, OCR cannot determine that the University has
established compliance under Part Two of the Three-Part Test.
Official Findings, p.8.
5. OCR determined that the University has not surveyed the

student body to assess students interests and abilities. *****
The Athletic Director stated that he believes the current
program effectively accommodates female students interests
and abilities; however, as stated above, OCR determined that
during academic years 2015-2016, the University discontinued
the womens tennis team, despite demonstrated interest and
ability of University students.
Accordingly, OCR determined that the University has not established
compliance under Part Three of the Three-Part Test. Id., p.10.
6. Based on the above, OCR determined that the University did

not demonstrate that it provides each sex with equitable athletic
opportunities under any part of the Three-Part Test. Therefore,
OCR determined that the University failed to establish that it has
effectively accommodated the athletic interests and abilities of
women, the underrepresented sex, as required by the regulation
implementing Title IX, at 34 C.F.R. Section 106.41(c)(1). Ibid.,
p.11.
51. These official findings understate Defendant SUNY Albanys repeated and
successful efforts to sidestep the requirements of Title IX. For years, Defendant SUNY
Albanys reports to the Department of Education have employed a variety of methods to short-
20
change female student-athletes, including double-counting both men and women participating
in so-called Indoor Track and Field and Outdoor Track and Field and counting males who
practice with womens teams as women.
The Secret Decision to Terminate Womens Tennis
52. In the fall of 2015, Defendant Mark Benson met with Plaintiff Graham to
discuss, among other things, the womens tennis teams eligibility for the NCAA
championships. The womens team competed in the America East athletic conference, which
had less than six teams at the time. Defendant Benson noted that under the NCAAs rules, the
winner of the conference championship would not be automatically eligible for the NCAA
championships. As a consequence, Defendant Benson explained that he and his staff were
looking for an alternative conference that would provide the womens tennis team an automatic
berth. Neither Defendant Benson, nor any of his staff, ever indicated that Defendant SUNY
Albany planned to eliminate womens tennis.
53. At no time after this meeting did Defendant Benson solicit any ideas from
Plaintiff Graham as to how to structure a competitive schedule that would allow the team to
compete for an at-large invitation for post-season play, nor did he request help from Plaintiff
Graham as the highly experienced and nationally-recognized head coach of womens tennis, in
finding an alternative conference for the womens tennis team.
54. Upon information and belief, Defendant Benson did not conduct a search for an
alternative conference during the 2015-2016 academic year.
55. Upon further information and belief, Defendant Benson rejected at least one
NCAA athletic conferences offer to accept the womens tennis team.
21
56. Defendant Benson kept secret from and refused to inform or advise Plaintiffs of
any deliberations, opportunities, or considerations concerning womens tennis throughout 2015-
2016, notwithstanding inquiries by Plaintiff Graham.
57. For his part, Plaintiff Graham planned a competitive schedule for 2016-2017 and
beyond. Graham believed this schedule would help the SUNY Albany team climb the national
rankings and become a post-season "at-large" team, potentially qualifying for the NCAA
Championships. Defendant Benson never asked for those plans, nor met with Plaintiff Graham
during the 2015-2016 academic year.
58. Upon information and belief, Defendant Benson had already decided, with the
knowledge and consent of then-President Robert Jones and Vice-President Chantelle Cleary, to
terminate the womens tennis team and redistribute its $365,000 operating budget for other uses.
This strategy would spare Defendant Benson from having to raise private donations or reduce
the budgets from other programs including mens teams in order to account for any financial
shortfall.
59. Chantelle Cleary, with the knowledge and consent of then-President Jones and
Defendant Benson, and notwithstanding her knowledge of Defendant SUNY Albanys non-
compliance and her responsibilities to the student-athletes as Vice-President of Equity and
Compliance and Defendant SUNY Albanys designated Title IX Officer, expressly supported
the unlawful decision to terminate the womens tennis team.
Defendant SUNY Albany Ends Womens Tennis
60. On the evening of March 23, 2016, in a surprise announcement, Defendant
Benson told Plaintiff Graham that Defendant SUNY Albany would terminate womens tennis
22
immediately following the teams participation in the America East Conference Championships.
Defendant Benson then warned Plaintiff Graham, who had personally recruited many of the
players that would be impacted by the universitys decision, not to tell anyone about SUNY
Albanys machinations. Defendant Benson said that he wanted to ensure that word of the
decision would not leak to the team, the players families, or the public before his planned press
release.
61. Plaintiff Graham nevertheless told the players about the termination after
practice the next morning. The players trusted Graham. He had recruited them from around the
world and Plaintiff Graham knew they would be devastated. After breaking the news to his
team, Plaintiff Graham and his assistant coaches took the players to meet with Defendant
Benson. After that meeting a furious Benson screamed at and threatened Graham.
62. Defendant Benson later materially altered a statement from Plaintiff Graham
without the latters permission and published it in Defendant SUNY Albanys official press
release. The unauthorized modification made it seem as if Plaintiff Graham agreed with and
supported the decision to terminate the womens tennis team.
Coach Graham is Terminated Because of His Age
63. In the five years prior to the elimination of womens tennis, Plaintiff Graham
successfully recruited and built a champion womens tennis team of nine players from the
United States and five other countries. Eight of the players were on full scholarships. Following
the announcement regarding the termination of the womens tennis team, Plaintiff Graham was
given only meaningless administrative tasks and no professional coaching opportunities.
Defendant Bensons Deputy, Jerry Koloskie, told Coach Graham that if he did not like the
23
assignments he was given, they could always force you to do a 9 to 5 boring job taking
attendance in the Bubble. 4
64. Defendant Benson made discriminatory and deprecating comments to athletics
department staff and to an alumna of Defendant SUNY Albany about Coach Grahams age and
readiness for retirement, telling some of them that Graham was old enough to retire.
Ultimately, Plaintiff Graham was stripped of all duties and was expressly told by Defendant
Bensons Deputy, Koloskie, that he should focus only on counseling his former team members
as they transition from being student athletes to being merely students.
65. Plaintiff Grahams early retirement in May of 2016 would have saved the athletic
department at Defendant SUNY Albany the equivalent of his salary for 15 months. Having
failed to persuade him to retire with demotions and humiliation, in July 2016 Defendant SUNY
Albany notified Plaintiff Graham that despite five years of excellent annual reviews and
championship results, his contract would not be renewed after it expired on August 14, 2017.
66. In November 2016, Plaintiff Graham filed a complaint with the OCR under Title
IX. By letter of January 11, 2017, the OCR notified Graham that it was opening an investigation
into his complaint. In the meantime, Plaintiff Graham continued to search for counsel who
would help the team on a pro bono basis.
4
The Bubble refers to a large inflatable facility at the SUNY Albany campus that is used for
intramural sports and practices.
24
COUNT I
Title IX
(By the Women Plaintiffs and Plaintiff Class Against Defendant SUNY Albany)
67. Plaintiffs re-allege and incorporate by reference all of the foregoing allegations.
68. Plaintiffs are entitled to injunctive relief that restrains Defendant from
continuing to discriminate on the basis of sex, restrains Defendant from refusing to support the
women's tennis program, and requires Defendant to reinstate the womens tennis program that
was unlawfully terminated, until such time, if ever, as Defendant can terminate the team without
violating Title IX.
69. Plaintiff Classes are further entitled to injunctive relief requiring Defendant
SUNY Albany to come into strict compliance with Title IX on an accelerated basis, irrespective
of the leisurely pace and toothless performance requirements for compliance contained in
Defendant SUNY Albanys Resolution Agreement with the Department of Education.
70. The OCR has found and Plaintiffs allege Defendant SUNY Albany to be in
persistent, continuing, and comprehensive violation of Title IX, but neither OCRs procedures
nor the voluntary Resolution Agreement specifies any remedy for individual harms or requires
SUNY Albany to reinstate any particular sport or otherwise make Plaintiffs whole.
71. OCR found and Plaintiffs allege that separate and apart from the historical and
ongoing violation of Title IX by Defendant SUNY Albany, the act of terminating the varsity
intercollegiate womens tennis program violated Title IX.
72. OCR has advised Plaintiffs counsel that because of its narrow mandate, OCR
has no objection and is indifferent to the outcome of this private action.
25
73. Defendant SUNY Albanys actions deny the Plaintiffs their legal right to
participate in varsity college sports on an equal basis with men at SUNY Albany. Athletics
provides non-academic but crucial training in discipline, health, work ethic, social behavior,
camaraderie, and, of course, lifelong networking. SUNY Albany deprived the Plaintiffs of all
of these invaluable opportunities and benefits when it eliminated the womens tennis program.
74. If injunctive relief is not granted during the pendency of this action, Plaintiffs
Pejovic and Kang will suffer irreparable harm by permitting Defendant SUNY Albany to
continue to discriminate against them, and by denying them both an opportunity to participate
in varsity intercollegiate athletics. If Defendant SUNY Albany is not required by this Court to
reinstate womens varsity tennis, these individual Plaintiffs will never again have the
opportunity to participate in this valuable educational experience - one that provides academic,
physical, psychological, social, and even economic benefits for the rest of the participants' lives.
There is no adequate remedy at law for these harms.
75. Upon information and belief, Defendant SUNY Albany could compensate for
the immaterial fraction of its more than $540,000,000 budget that a nine-person womens tennis
team represents, merely by rounding the roster caps for a few of its seven mens teams. 5 This
would be an even lighter burden for the next year, as there are only two of the womens tennis
teams players who remain enrolled at the University. Upon information and belief, Defendant
would gain public relations and enrollment advantages from doing so, which could be
economically advantageous in attracting more students by demonstrating to student-athletes
5
Defendant SUNY Albany reports eight mens teams to the U.S. Department of Education,
counting both Indoor track and Outdoor track as separate teams, but the evidence adduced at
trial will show that with few exceptions the same individuals populate the rosters of both teams.
26
prompt action and commitment to comply with Title IX by offering more opportunities for its
female students. The first two championship-level tennis players are currently on campus, the
former Head Coach of womens tennis is still present in the community, the coach handles all
the organizational, scheduling, logistical, and training for the program, his contract is still warm,
and the programs cost is insignificant. If Defendants were not merely retaliating against the
Plaintiffs, reinstating womens tennis would be the easiest of baby steps toward both Title IX
compliance and mitigation of ongoing harm.
76. The injunctive relief that Plaintiffs request on behalf of themselves and the
Plaintiff Class will promote the public interest in that it will increase educational opportunities
for female students and will promote compliance with federal law. Congress decided that sex-
based discrimination in collegiate athletics was not in the public interest when it enacted Title
IX and reaffirmed that public interest over the past thirty-seven years by defeating each and
every attempt that has been made to weaken Title IX. Equal opportunity for all students - male
and female - is at the core of this case, is at the core of American identity, and is clearly in the
public interest.
77. Notwithstanding the irreparable harms which have been done and continue to be
imposed on the women Plaintiffs, they have suffered injury which may compensated for, in part,
by awards of money damages, including among other things lost professional status and
reputation, lost opportunities for employment and professional acclaim, costs of seeking
opportunities at other schools, lost past and future employment, lost compensation and benefits,
humiliation, emotional pain and distress, lost self-esteem, and other injuries.
27
COUNT II
Title IX
(By Plaintiff Gordon Graham as Coach of the Womens Tennis Program Against
Defendant SUNY Albany)
78. Plaintiff Gordon Graham re-alleges and incorporates by reference all the
foregoing allegations.
79. The OCR has found and Plaintiff Graham alleges that Defendant SUNY Albany
is in persistent, continuing, and comprehensive violation of Title IX, but neither OCRs
procedures nor the voluntary Resolution Agreement specifies any remedy for individual harms
or requires SUNY Albany to reinstate any particular sport or Coach or otherwise make Plaintiff
Graham whole.
80. OCR found and Plaintiff Graham alleges that separate and apart from the
historical and ongoing violation of Title IX by Defendant SUNY Albany, the act of terminating
the varsity intercollegiate womens tennis program violated Title IX.
81. The unlawful termination of the varsity intercollegiate womens tennis team by
Defendant SUNY Albany intentionally and wrongfully discriminated against Plaintiff Graham
on the basis of the sex of the women student-athletes he coached, causing him irreparable harm
and injury.
82. Because of Defendant SUNY Albanys unlawful termination of the womens
tennis team he recruited, mentored, and coached, and the particular vulnerabilities of its victims
in this case as foreign students with a 65-year old coach, which vulnerability was exploited by
SUNY Albany in the method and timing of its termination of the team, Plaintiff Graham was
forced to contest the Universitys actions alone. Because he did so, including filing an official
complaint with the OCR, he may now be branded as a whistleblower, with little prospect of
28
future coaching employment in his chosen profession, and every prospect of retribution by
Defendant SUNY Albany.
83. Notwithstanding the irreparable harms which have been done and continue to be
imposed on Plaintiff Graham, he has suffered injury which may compensated for in part by an
award of money damages, including among other things lost professional status and reputation,
lost opportunities for employment and professional acclaim, lost past and future employment,
lost income and benefits, lost compensation and benefits, humiliation, emotional pain and
distress, lost self-esteem and other injuries.
COUNT III
42 U.S.C Sections 1983 and 1988
(By Plaintiff Graham Against Defendant Benson)
84. Plaintiff Gordon Graham re-alleges and incorporates by reference all of the
85. The Equal Protection Clause of the Fourteenth Amendment to the Constitution
of the United States as codified at 42 U.S.C Sections 1983 and 1988, prohibits discrimination
against any person on the basis of age.
86. On or about March 23, 2016, Benson advised Plaintiff Graham for the first time
that the womens tennis team was to be terminated. Thereafter, Defendant Benson personally
took and ordered repeated acts of age discrimination against Plaintiff Graham in violation of 42
U.S.C. 1983.
87. When, on March 23, 2016, Defendant Benson first announced to Plaintiff
Graham that the tennis team would be terminated, Defendant Benson asked the then-65-year-
29
old coach Graham how old he was. Defendant Benson also said in front of others at that meeting
that Plaintiff Graham was close to retirement.
88. On the morning that the university publicly announced its decision to end
womens tennis, Defendant Benson screamed at and threatened Coach Graham in front of
others, telling him While we will honor your contract, how well you handle this situation in
the next couple of months will determine how well things go for you for the next fifteen
months.
89. Shortly thereafter, Defendant Benson stripped Plaintiff Graham of all
meaningful responsibilities and humiliated him by, among other things, assigning him
meaningless tasks and denying him coaching opportunities with any other of Defendants teams.
90. Later, Defendant Bensons deputy and Plaintiff Grahams immediate supervisor
advised Graham that he should focus on doing nothing but helping the members of the now
disbanded womens tennis team as they transition from being student athletes to being
merely students.
91. When Plaintiff Graham complained, Defendant Bensons deputy only
humiliated Graham further by warning that this decorated tennis coach could spend his days
taking attendance at the campuss inflatable practice facility, saying If you dont like it, they
could always force you to do a 9 to 5 boring job taking attendance in the Bubble.
92. In a meeting with a dedicated UA tennis alumna who had come to question the
decision to terminate the team, Defendant Benson told her that Coach Graham could retire if
he wants to, since he was old enough.
93. In another meeting with his senior staff, Defendant Benson described the
30
situation regarding the termination of the womens tennis program and told those in attendance
that "Gordon is old enough that he could retire now."
94. In July of 2016, Defendant SUNY Albany notified Plaintiff Graham that upon
the determination of Defendant Benson and despite five years of excellent annual reviews and
championship results, Grahams contract would not be renewed after it expired on August 14,
2017.
COUNT IV
NEW YORK STATE HUMAN RIGHTS LAW
(By Plaintiff Graham Against Defendant SUNY Albany)
95. Plaintiff Gordon Graham re-alleges and reincorporates by reference all of the
96. Defendant SUNY Albany is an Educational Corporation formed and existing
under the Education Law of the State of New York.
97. Section 296 (3.a) of Title 15 of New York States Executive Law (Human
Rights Law) prohibits discrimination in the terms, conditions or privileges of employment by
an employer on the basis of age against any person 18 years of age or older.
98. Section 296 (3.d) of the Human Rights Law prohibits termination or retirement
from employment by an employer on the basis of age.
99. Defendant SUNY Albany is a covered employer under the Human Rights Law.
100. In 2014, Defendant SUNY Albany hired Defendant Mark Benson as an
employee with the title of Director of Athletics. In that position, Benson had supervisory
authority over all of the intercollegiate athletics programs and employees including Plaintiff
Graham as a subordinate employee and Head Coach of the womens intercollegiate tennis team.
31
Jerry Koloskie was Bensons Deputy Athletics Director, Plaintiff Grahams immediate
supervisor, and an employee and agent of Defendant SUNY Albany.
101. After disbanding the womens tennis team, Benson, Koloskie and other agents
and employees of Defendant SUNY Albany, engaged in repeated acts of age discrimination in
violation of New York States Human Rights Law.
102. Defendant SUNY Albany, acting through Benson and Koloskie, stripped
Plaintiff Graham of all meaningful job functions, leaving him only to perform meaningless and
humiliating administrative tasks.
103. Benson, while employed in his official capacity by Defendant SUNY Albany
and in his performance of those duties, made several derogatory remarks regarding Plaintiff
Grahams age to members of Defendant SUNY Albanys athletics department staff and at least
one alumna.
104. On March 23, 2016, when Athletics Director Benson first announced to Plaintiff
Graham that the tennis team was to be terminated, Benson expressly asked the then-65-year-old
coach how old he was. Director Benson also said in front of others at that meeting that Plaintiff
Graham was close to retirement.
105. During a formal meeting with a dedicated UA tennis alumna who had come to
question the decision to terminate the team, Director Benson told her that Coach Graham could
retire if he wants to, since he was old enough.
106. In another meeting with the senior staff of the Athletics Department of SUNY
Albany, who reported to him in his official capacity, Director Benson described the situation
regarding the termination of the womens tennis program and told those in attendance
32
that "Gordon is old enough that he could retire now."
107. In July of 2016, Defendant SUNY Albany notified Plaintiff Graham that
notwithstanding five years of excellent annual performance reviews and championship results,
Grahams contract would not be renewed after it expired on August 14, 2017.
108. Upon information and belief, SUNY Albany has involuntarily terminated the
contracts of no other Head Coaches of its intercollegiate athletics programs, for any reason, for
more than five years prior to its termination of Plaintiff Graham.
COUNT V
DECLARATORY RELIEF
(By All Plaintiffs Against Defendant SUNY Albany)
109. Plaintiffs re-allege and incorporate by reference all of the foregoing allegations.
110. SUNY Albany at all times pertinent to this Complaint remained subject to the
Stipulation and Order of the New York State Supreme Court, Albany County dated August 26,
1994 in Case No. 4934-94, in the matter of James Kane, David Lichten, Michael Wexler, Paul
Garnock, Amy Hilton, Kenneth Barclay, Mark Ynagthara and Eric Rose, Petitioners, vs. State
University of New York at Albany, Patrick Swygert, President, State University at Albany, Dr.
Milton Richards, Gail Cummings-Danson, Dennis Elkin, John Morgan and Richard Hall,
Respondents (Prior Order). See Exhibit A. The Prior Order states in pertinent part:
The Respondent State University of New York at Albany shall mitigate the
impact of any future decision to terminate programs or reduce them to less-than-
varsity status, by:
a. Giving prompt notice of the decision to all potentially affected parties,

including, but not limited, to coaches, current athletes, the student body
generally, the University Undergraduate Admissions Office, and other colleges
and universities contacting [the Athletics Department] regarding transfer
33
admissions for athletes, and
b. All changes in program shall be in compliance with federal law and made in
accordance with appropriate University procedures.
c. In the event any such programs are to be terminated, respondents shall provide
appropriate notice of such termination so as to give any participant or recruit
the opportunity to transfer to another athletic program at another college or
university without loss of opportunity in successive years. Prior Order, at p. 2
(emphasis supplied).
111. The actions of Defendant SUNY Albany and its officers, employees, and agents
alleged in this Complaint constitute breaches of the Prior Order in each and every one of its
three material elements set forth above, which breaches, if committed with knowledge of the
Prior Order, would be grounds for sanctions.
112. A present and actual controversy exists between Plaintiffs and Defendant SUNY
Albany. Plaintiffs allege, among other things, that their rights have been intentionally violated
by Defendant SUNY Albany in breach of the Prior Order. Other potentially affected parties
including but not limited to the Plaintiff Class remain at risk to Defendant SUNY Albanys
actions. Declaratory relief is necessary and appropriate in the public interest to awaken
Defendants and other potentially affected parties to the rights of students at the University at
Albany under the Prior Order.
ATTORNEYS FEES AND COSTS
113. Plaintiffs have been required to retain attorneys to prosecute all claims in this
action. Recovery of the costs of such prosecution, including reasonable attorneys fees and
fees of experts, may be allowed to the prevailing party by the Court in its discretion pursuant
to 42 U.S.C. 1988 (b) and (c).
34
114. Plaintiffs claim entitlement to recovery of their costs, including but not
limited to reasonable attorneys fees and expert fees, should Plaintiffs prevail in their action.
PRAYER FOR RELIEF
WHEREFORE, Plaintiffs pray that this Court:
(1) Certify the proposed class of plaintiffs;
(2) Issue preliminary and permanent injunctions requiring Defendant SUNY Albany
to stop discriminating against women in the operation of its intercollegiate athletics programs
and to come into full and complete compliance with Title IX in the operation of its
intercollegiate athletics programs within one year;
(3) Issue preliminary and permanent injunctions requiring Defendant SUNY Albany
to immediately reinstate its economic, logistical, coaching, and staffing support of the womens
tennis program equivalent to the levels present at the time of the March 24, 2016 termination
of that program, and further not to eliminate or reduce the status of womens tennis or any
women's varsity athletic team or opportunity until such time as the Court shall find that
Defendant SUNY Albany is in full and complete compliance with Title IX and that such
elimination or reduction in the status of a womens team would not violate Title IX.
(4) Enter an Order declaring that Defendant SUNY Albany violated the terms of the
Prior Order of the Supreme Court of the State of New York, Albany County by failing to give
notice of the termination of the varsity womens tennis program to all potentially affected parties
including without limitation Plaintiff Graham, by terminating the varsity womens tennis
program in violation of Federal law under Title IX, and by failing to give appropriate notice of
such termination to the women Plaintiffs.
35
(5) Award monetary damages to the individual women Plaintiffs and Plaintiff Graham
by way of partial compensation for substantial injury associated with, among other things, lost
professional status and reputation, lost opportunities for employment and professional acclaim,
costs of seeking opportunities at other schools, lost past and future employment, lost
compensation and benefits, humiliation, emotional pain and distress, lost self-esteem and other
injuries set forth in this Complaint, in an amount to be determined at trial.
(6) Plaintiff Graham also prays this Court to issue an injunction to require Defendants
to reinstate him as Head Coach of the womens varsity tennis team at SUNY Albany, in a non-
hostile environment, without retaliation, under his previously applicable contractual
arrangements with the same salary, benefits, and resources he enjoyed prior to Defendants
unlawful termination of the team in March 2016;
(7) Maintain jurisdiction over this action and assign a Special Master to monitor
Defendant SUNY Albanys full and timely compliance with the Court's orders;
(8) Award Plaintiffs including the Plaintiffs Class their reasonable attorneys' fees,
costs, expenses, and interest pursuant to 42 U.S.C. 1988; and
(9) Grant Plaintiffs including Plaintiffs Class such other and further relief
as may be just and proper under the circumstances, including punitive damages, in
amounts to be determined at trial, to be distributed or applied as a jury shall determine.
///
///
///
///
///
36
DEMAND FOR JURY TRIAL
Plaintiffs demand a jury trial as to all claims so triable.
Dated: September 29, 2017
Respectfully submitted,
Rimon, P.C.
/s/ Bernays T. Barclay________________

Bernays T. Barclay (Bar Roll No.520808)
Rimon, P.C.
255 Patroon Creek Boulevard #4467
Albany, NY 12206
Telephone: (516) 375-2524
buz.barclay@rimonlaw.com
Attorneys for Plaintiffs
37
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Case 1:17-cv-01092-TJM-DJS Document 1-1 Filed 09/29/17 Page 1 of 2
JS 44 (Rev. 06/17) CIVIL COVER SHEET
The JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as
provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the
purpose of initiating the civil docket sheet. (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.)
I. (a) PLAINTIFFS DEFENDANTS

Isidora Pejovic; Chae Bean Kang; Alba Sala Huerta; Chassidy King, State University of New York at Albany; Mark Benson
individually and on behalf of all those similarly situated; Gordon Graham
(b) County of Residence of First Listed Plaintiff County of Albany County of Residence of First Listed Defendant County of Albany
(EXCEPT IN U.S. PLAINTIFF CASES) (IN U.S. PLAINTIFF CASES ONLY)
NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF
THE TRACT OF LAND INVOLVED.
(c) Attorneys (Firm Name, Address, and Telephone Number) Attorneys (If Known)
S
Bernays T. Barclay, Esq. .S
Rimon, P.C., 255 Patroon Creek Blvd., #4467, Albany, NY 12206 , C , , 12224 0341
Phone: 516.375.2524 18. 6.2000
II. BASIS OF JURISDICTION (Place an X in One Box Only) III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an X in One Box for Plaintiff
(For Diversity Cases Only) and One Box for Defendant)
1 U.S. Government 3 Federal Question PTF DEF PTF DEF
Plaintiff (U.S. Government Not a Party) Citizen of This State 1 1 Incorporated or Principal Place 4 4
of Business In This State
2 U.S. Government 4 Diversity Citizen of Another State 2 2 Incorporated and Principal Place 5 5
Defendant (Indicate Citizenship of Parties in Item III) of Business In Another State
Citizen or Subject of a 3 3 Foreign Nation 6 6

Foreign Country
IV. NATURE OF SUIT (Place an X in One Box Only) Click here for: Nature of Suit Code Descriptions.
CONTRACT TORTS FORFEITURE/PENALTY BANKRUPTCY OTHER STATUTES
110 Insurance PERSONAL INJURY PERSONAL INJURY 625 Drug Related Seizure 422 Appeal 28 USC 158 375 False Claims Act
120 Marine 310 Airplane 365 Personal Injury - of Property 21 USC 881 423 Withdrawal 376 Qui Tam (31 USC
130 Miller Act 315 Airplane Product Product Liability 690 Other 28 USC 157 3729(a))
140 Negotiable Instrument Liability 367 Health Care/ 400 State Reapportionment
150 Recovery of Overpayment 320 Assault, Libel & Pharmaceutical PROPERTY RIGHTS 410 Antitrust
& Enforcement of Judgment Slander Personal Injury 820 Copyrights 430 Banks and Banking
151 Medicare Act 330 Federal Employers Product Liability 830 Patent 450 Commerce
152 Recovery of Defaulted Liability 368 Asbestos Personal 835 Patent - Abbreviated 460 Deportation
Student Loans 340 Marine Injury Product New Drug Application 470 Racketeer Influenced and
(Excludes Veterans) 345 Marine Product Liability 840 Trademark Corrupt Organizations
153 Recovery of Overpayment Liability PERSONAL PROPERTY LABOR SOCIAL SECURITY 480 Consumer Credit
of Veterans Benefits 350 Motor Vehicle 370 Other Fraud 710 Fair Labor Standards 861 HIA (1395ff) 490 Cable/Sat TV
160 Stockholders Suits 355 Motor Vehicle 371 Truth in Lending Act 862 Black Lung (923) 850 Securities/Commodities/
190 Other Contract Product Liability 380 Other Personal 720 Labor/Management 863 DIWC/DIWW (405(g)) Exchange
195 Contract Product Liability 360 Other Personal Property Damage Relations 864 SSID Title XVI 890 Other Statutory Actions
196 Franchise Injury 385 Property Damage 740 Railway Labor Act 865 RSI (405(g)) 891 Agricultural Acts
362 Personal Injury - Product Liability 751 Family and Medical 893 Environmental Matters
Medical Malpractice Leave Act 895 Freedom of Information
REAL PROPERTY CIVIL RIGHTS PRISONER PETITIONS 790 Other Labor Litigation FEDERAL TAX SUITS Act
210 Land Condemnation Y 440 Other Civil Rights
Habeas Corpus: 791 Employee Retirement 870 Taxes (U.S. Plaintiff 896 Arbitration
220 Foreclosure 441 Voting 463 Alien Detainee Income Security Act or Defendant) 899 Administrative Procedure
230 Rent Lease & Ejectment 442 Employment 510 Motions to Vacate 871 IRSThird Party Act/Review or Appeal of
240 Torts to Land 443 Housing/ Sentence 26 USC 7609 Agency Decision
245 Tort Product Liability Accommodations 530 General 950 Constitutionality of
290 All Other Real Property 445 Amer. w/Disabilities - 535 Death Penalty IMMIGRATION State Statutes
Employment Other: 462 Naturalization Application
446 Amer. w/Disabilities - 540 Mandamus & Other 465 Other Immigration
Other 550 Civil Rights Actions
448 Education 555 Prison Condition
560 Civil Detainee -
Conditions of
Confinement
V. ORIGIN (Place an X in One Box Only)
1 Original 2 Removed from 3 Remanded from 4 Reinstated or 5 Transferred from 6 Multidistrict 8 Multidistrict
Proceeding State Court Appellate Court Reopened Another District Litigation - Litigation -
(specify) Transfer Direct File
Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity):
20 U.S.C. 1681; 42 U.S.C. 1983, 1988
VI. CAUSE OF ACTION Brief description of cause:
4FY%JTDSJNJOBUJPO"HF%FTDSJNJOBUJPO
VII. REQUESTED IN CHECK IF THIS IS A CLASS ACTION DEMAND $ CHECK YES only if demanded in complaint:
COMPLAINT: UNDER RULE 23, F.R.Cv.P. JURY DEMAND: Yes No
VIII. RELATED CASE(S)
(See instructions):
IF ANY JUDGE DOCKET NUMBER
DATE SIGNATURE OF ATTORNEY OF RECORD
09/29/2017 /s/ Bernays T. Barclay, Esq.
FOR OFFICE USE ONLY
RECEIPT # AMOUNT $400 APPLYING IFP JUDGE TJM MAG. JUDGE DJS
0206-4151723 1:17-cv-1092 (TJM/DJS)
JS 44 Reverse (Rev. 06/17) Case 1:17-cv-01092-TJM-DJS Document 1-1 Filed 09/29/17 Page 2 of 2
INSTRUCTIONS FOR ATTORNEYS COMPLETING CIVIL COVER SHEET FORM JS 44
Authority For Civil Cover Sheet
The JS 44 civil cover sheet and the information contained herein neither replaces nor supplements the filings and service of pleading or other papers as
required by law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is
required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. Consequently, a civil cover sheet is submitted to the Clerk of
Court for each civil complaint filed. The attorney filing a case should complete the form as follows:
I.(a) Plaintiffs-Defendants. Enter names (last, first, middle initial) of plaintiff and defendant. If the plaintiff or defendant is a government agency, use
only the full name or standard abbreviations. If the plaintiff or defendant is an official within a government agency, identify first the agency and
then the official, giving both name and title.
(b) County of Residence. For each civil case filed, except U.S. plaintiff cases, enter the name of the county where the first listed plaintiff resides at the
time of filing. In U.S. plaintiff cases, enter the name of the county in which the first listed defendant resides at the time of filing. (NOTE: In land
condemnation cases, the county of residence of the "defendant" is the location of the tract of land involved.)
(c) Attorneys. Enter the firm name, address, telephone number, and attorney of record. If there are several attorneys, list them on an attachment, noting
in this section "(see attachment)".
II. Jurisdiction. The basis of jurisdiction is set forth under Rule 8(a), F.R.Cv.P., which requires that jurisdictions be shown in pleadings. Place an "X"
in one of the boxes. If there is more than one basis of jurisdiction, precedence is given in the order shown below.
United States plaintiff. (1) Jurisdiction based on 28 U.S.C. 1345 and 1348. Suits by agencies and officers of the United States are included here.
United States defendant. (2) When the plaintiff is suing the United States, its officers or agencies, place an "X" in this box.
Federal question. (3) This refers to suits under 28 U.S.C. 1331, where jurisdiction arises under the Constitution of the United States, an amendment
to the Constitution, an act of Congress or a treaty of the United States. In cases where the U.S. is a party, the U.S. plaintiff or defendant code takes
precedence, and box 1 or 2 should be marked.
Diversity of citizenship. (4) This refers to suits under 28 U.S.C. 1332, where parties are citizens of different states. When Box 4 is checked, the
citizenship of the different parties must be checked. (See Section III below; NOTE: federal question actions take precedence over diversity
cases.)
III. Residence (citizenship) of Principal Parties. This section of the JS 44 is to be completed if diversity of citizenship was indicated above. Mark this
section for each principal party.
IV. Nature of Suit. Place an "X" in the appropriate box. If there are multiple nature of suit codes associated with the case, pick the nature of suit code
that is most applicable. Click here for: Nature of Suit Code Descriptions.
V. Origin. Place an "X" in one of the seven boxes.

Original Proceedings. (1) Cases which originate in the United States district courts.
Removed from State Court. (2) Proceedings initiated in state courts may be removed to the district courts under Title 28 U.S.C., Section 1441.
When the petition for removal is granted, check this box.
Remanded from Appellate Court. (3) Check this box for cases remanded to the district court for further action. Use the date of remand as the filing
date.
Reinstated or Reopened. (4) Check this box for cases reinstated or reopened in the district court. Use the reopening date as the filing date.
Transferred from Another District. (5) For cases transferred under Title 28 U.S.C. Section 1404(a). Do not use this for within district transfers or
multidistrict litigation transfers.
Multidistrict Litigation Transfer. (6) Check this box when a multidistrict case is transferred into the district under authority of Title 28 U.S.C.
Section 1407.
Multidistrict Litigation Direct File. (8) Check this box when a multidistrict case is filed in the same district as the Master MDL docket.
PLEASE NOTE THAT THERE IS NOT AN ORIGIN CODE 7. Origin Code 7 was used for historical records and is no longer relevant due to
changes in statue.
VI. Cause of Action. Report the civil statute directly related to the cause of action and give a brief description of the cause. Do not cite jurisdictional
statutes unless diversity. Example: U.S. Civil Statute: 47 USC 553 Brief Description: Unauthorized reception of cable service
VII. Requested in Complaint. Class Action. Place an "X" in this box if you are filing a class action under Rule 23, F.R.Cv.P.
Demand. In this space enter the actual dollar amount being demanded or indicate other demand, such as a preliminary injunction.
Jury Demand. Check the appropriate box to indicate whether or not a jury is being demanded.
VIII. Related Cases. This section of the JS 44 is used to reference related pending cases, if any. If there are related pending cases, insert the docket
numbers and the corresponding judge names for such cases.
Date and Attorney Signature. Date and sign the civil cover sheet.

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Case 1:17-cv-01092-TJM-DJS Document 1 Filed 09/29/17 Page 1 of 62

UNITED STATES DISTRICT COURT

ISIDORA PEJOVIC, CHAE BEAN KANG,

STATE UNIVERSITY OF NEW YORK AT

This is an action based on long-standing and ongoing violations of Title IX of the

thought he was old enough to retire.

STATEMENT OF THE CASE

1. Defendant SUNY Albany holds itself out as a university committed to

2. Defendant SUNY Albany discriminates against women on the basis of their

womens intercollegiate sports opportunities or add teams; and by willfully or purposefully

3. Defendant SUNY Albany compounded its historic Title IX wrongs in March

4. Following a complaint filed by Plaintiff Graham, the womens former tennis

SUNY Albanys intercollegiate athletics programs. OCRs recently published findings

agreement between the Department of Education and SUNY Albany (Resolution

Agreement). See Exhibit A.

6. Defendant SUNY Albany intentionally concealed its decision to terminate the

academic lives and sports careers.

7. Defendant SUNY Albanys termination of the womens varsity tennis

SUNY Albany was a party (Prior Order). See Exhibit B.

publicly, the 65-year old coach was old enough to retire.

would stand by its decision to eliminate the team.

and supervise an accelerated Title IX compliance program, monetary damages for

JURISDICTION AND VENUE

1343(3), and 1343(4).

pursuant to 28 U.S.C. Section 1367.

duties of the parties to this action.

The Women Plaintiffs

community and academic leaders.

Championship Tournament in May 2016.

which is within this Courts jurisdiction.

is within this Courts jurisdiction.

and graduated in May of 2017.

jurisdiction for purposes of this lawsuit.

The Womens Tennis Teams Coach

disbanded team to victory at the America East Conference Championship. He has

a singularly distinguished resume of coaching championship womens tennis teams at the

New York, which is within this Courts jurisdiction.

Defendant SUNY Albany

administration of Defendant SUNY Albany;

termination of the womens tennis program, he left. With respect to his

responsibilities as President, Jones was an agent and employee of SUNY Albany

control of Chancellor Nancy L. Zimpher;

responsibilities as Interim President, Professor Stellar was an agent and employee of

direct supervision and control of Nancy L. Zimpher; and

Defendant Mark Benson

James R. Stellar at all times relevant to this Complaint.

ALLEGATIONS AS TO THE PLAINTIFF CLASS

to Federal Rule of Civil Procedure 23(a) and (b)(2).

female students with an opportunity to participate in varsity intercollegiate athletics at SUNY

athletic participation opportunities at SUNY Albany.

opportunity to participate in varsity intercollegiate athletics would be impossible.

of students graduate and as another class of students enrolls at SUNY Albany.

sports they want to play.

35. It is unknown how many present, prospective, or future female student-athletes

to reach proportional equality of opportunity for women participating in intercollegiate sports

at Defendant SUNY Albany, are too numerous to make joinder practicable.

provide female student-athletes with an opportunity to participate in varsity intercollegiate

reinstate tennis and add more women's varsity sports.

sex-based-discrimination, and (d) was or currently is being denied athletic participation

with respect to the class as a whole.

to certify the action as a class action.

Financial Pressures Lay the Groundwork for Eliminating Womens Tennis

20 high-definition televisions distributed throughout the level. 1