Full opinion text
MEMORANDUM AND ORDER YOHN, District Judge. Plaintiff Noreen Kemether brings this action under Title VII and Title IX of the Civil Rights Act of 1964, based on allegations that she suffered gender-based discrimination as a basketball official (i.e., referee), in her assignments to officiate high school interscholastic games. Defendant Pennsylvania Interscholastic Athletic Association, Inc. has filed a motion for summary judgment, and plaintiff has filed a motion for partial summary judgment. For the reasons set forth below, defendant’s motion will be granted in part and denied in part, and plaintiffs motion will be denied. STANDARD OF REVIEW Under Fed.R.Civ.P. 56(c), summary judgment is to be granted upon motion of any party “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” A factual dispute does not preclude summary judgment unless it is material; that is, unless it might affect the outcome of the suit under governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Where the parties present cross-motions for summary judgment, the court must consider each party’s motion separately. Bencivenga v. Western Pa. Teamsters & Employers Pension Fund, 763 F.2d 574, 576 n. 2 (3d Cir.1985) (citing Rains v. Cascade Indus., Inc., 402 F.2d 241 (3d Cir.1968)). On each issue, “the evidence of the nonmovant is to be believed,” and the court must draw all reasonable inferences in the nonmovant’s favor. Anderson, 477 U.S. at 255, 106 S.Ct. 2505. The nonmovant nonetheless “must present affirmative evidence to defeat a properly supported motion for summary judgment,” Anderson, 477 U.S. at 257, 106 S.Ct. 2505, and must do more than rest upon mere allegations, general denials, or vague statements. Trap Rock Indus., Inc. v. Local 825, 982 F.2d 884 (3d Cir.1992). Where the nonmovant bears the burden of persuasion at trial, the moving party may meet its burden with a showing “that there is an absence of evidence to support the nonmoving party’s case.” Celotex, 477 U.S. at 325, 106 S.Ct. 2548. However, “the mere existence of a scintilla of evidence in support of the [nonmovantj’s position will be insufficient.” Anderson, 477 U.S. at 252, 106 S.Ct. 2505. Rather, “where the record taken as a whole could not lead a rational trier of fact to find for the nonmov-ing party, there is no ‘genuine issue for trial.’ ” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). BACKGROUND The following account is based upon substantially undisputed facts, except where noted. Defendant Pennsylvania Interscholastie Athletic Association, Inc. (“PIAA”) is a statewide athletic association, organized as a nonprofit membership corporation. (Def.’s App. Ex. D.) PIAA’s membership comprises approximately 1,300 Pennsylvania high schools and junior high schools, both public and private. (Id.) PIAA’s executive and administrative body is its Board of Control, which has “general control over all interscholastie athletic relations and athletic contests in which a member school of this association participates.” (PIAA Const, art. VI, § 1, art. VIII, § 1(A).) PIAA divides Pennsylvania into eleven districts, both for administrative purposes and for interscholastie competition in which district qualifiers advance to statewide championships. (Id. art. V, § 1; Rules and Regulations at 22-27.) Each district is administered by a district committee, elected by the member schools in that district. (PIAA Const, art. VIII.) Each district has at least one representative on PIAA’s Board of Control. (Id. art. VI, § 2.) PIAA District I includes Bucks, Chester, Delaware, Montgomery, and Philadelphia counties. (Id. art. V, § 1.) PIAA undertakes four major areas of responsibility: (1) establishing and enforcing eligibility rules for high school athletes, (2) organizing and operating playoffs and championships, (3) adopting playing rules for each sport, and (4) registering and training officials. (Cashman Dep. Ex. 6 at 4-5.) Pursuant to the last of these responsibilities, PIAA tests and registers officials in various sports, and charters local chapters of registered officials. Plaintiff Noreen Kemether is a PIAA-reg-istered basketball official. Kemether played basketball competitively in high school and college, where she was a member of a national championship women’s team. She has continued to play in adult recreational leagues since college, and has coached basketball in camps, elementary schools, and high schools. Since the 1984-85 season, she has officiated basketball games at local schools and colleges that were not members of PIAA. Kemether passed PIAA’s required examination, and in November 1990, she became registered with PIAA as a basketball official. She was then permitted to work in basketball games played by PIAA member schools. Every PIAA-registered official is required to join a local chapter. One such chapter is the Delaware County Chapter of PIAA Basketball Officials (“Delco Chapter”), which Kemether joined upon registering with PIAA. Plaintiff alleges that the Delco Chapter “act[s] as PIAA’s agent at the local level.” (Amended Compl. ¶ 19.) Defendant contests that allegation, contending that the Delco Chapter is merely a “local group[ ] of individuals who are not members of PIAA.” (PIAA Br. Mot. Summ. J. at 5.) Officials are paid on a per-game basis by the member schools, pursuant to a standard “Contract for Officials Under P.I.AA. Rules” approved by PIAA (see Fromson Decl. Ex. 7-9), which PIAA requires its member schools and its registered officials to use for each contest. In its constitution, PIAA asserts the power “to determine the method and the qualifications for the registration of officials; to determine their powers and duties; and to make and apply necessary penalties and forfeits for the control of such officials.” (PIAA Const, art. VII, § 1(F).) As a Delco Chapter official, plaintiff has officiated games between PIAA schools in two local leagues, one of which is the Del Val Athletic Association (“Del Val”). Del Val is an athletic league of eight high schools that regularly compete against each other. Del Val is organized as an unincorporated association, and includes, seven public schools and one private school. The Del Val schools are members of PIAA, and are located in PIAA District I. (Fromson Decl. Ex. 5 at 1; Ruoff Dep. at 25-27.) During the regular basketball season, Del Val and its member schools arranged for PIAA-registered basketball officials from the Delco Chapter to officiate their interscholastic games. An “assignor” is a person authorized and paid to select officials to officiate particular games. Harry Sheldrake was the assignor who assigned Delco Chapter basketball officials to games in the Del Val league. Sheld-rake was a PIAA-registered official and a member of the Delco Chapter. In the 1996-97 season, James Faulkner succeeded Sheld-rake as assignor and has continued through the current season. Del Val paid the assignors a fee for their services. (Fromson Decl. Ex. 11.) Plaintiff alleges that the Delco Chapter selected the assignors for Del Val, and that the assignors were agents of PIAA through the Delco Chapter. (Amended Compl. ¶ 27.) Defendant alleges that Delco Chapter merely recommended the assignors to Del Val, and gave them advice, but that the assignors were not controlled by the Delco Chapter. (Def.’s Mem. Opp. Summ. J. at 20.) Despite plaintiffs request for boys’ games and varsity games, Sheldrake assigned Kem-ether only to girls’ junior varsity games during her first three seasons as a member of the Delco Chapter. (Sheldrake Dep. at 100-01, 237-44; Fromson Decl. Ex. 1.) Sheld-rake and Faulkner have never assigned a female official to boys’ varsity or junior varsity games, but only to ninth grade or younger boys’ games. (Sheldrake Dep. at 143, 155, 235; Faulkner Dep. at 93,119.) In the 1993-94 and 1994-95 seasons, after Kemether’s complaint to the EEOC, Sheldrake assigned Kemether to at least one girls’ varsity game, and three ninth grade boys’ games. (Sheld-rake Dep. at 145, 245-47; Fromson Deck Ex. 1.) In the 1995-96 season and thereafter, Sheldrake and Faulkner assigned no games to Kemether. Plaintiff alleges that the assignors’ failure to assign her to any games was in retaliation for filing and pursuing her EEOC complaint. (Amended Compl. ¶¶53, 56, 60, 62, 64.) Officials were assigned to post-season playoff and championship games by a different method. (See, e.g., Fromson Deck Ex. 10, 15-17, 44.) The assignor’s role in directly selecting officials ends with the regular season, and does not extend to post-season district playoffs, state playoffs, and championships. PIAA does not dispute that it has general control and responsibility over championship events, including selecting officials for all post-season games. (See Rules and Regulations at 5.) On the basis of recommendations from coaches and assignors, PIAA District I selects officials for district playoffs. (Ruoff Dep. at 77, 81.) Two separate lists are maintained for officials wishing to be considered for boys’ games or girls’ games. {Id. at 63.) To be eligible, each official must have officiated ten varsity games in both the current and the previous year. {Id. at 63, 76.) For state playoffs, the district recommends officials using criteria that include a requirement of five years officiating in district playoffs, and working ten varsity games in the current season. (Lombardi Dep. at 151-59, 165; Cashman Dep. at 145.) To be eligible for boys’ playoffs, the ten games must be boys’ varsity games, and for girls’ playoffs they had to be girls’ varsity games. (Cashman Dep. at 145.) Both male and female officials have officiated girls’ playoff and championship games. However, no female official has ever been recommended to officiate a boys’ playoff game in PIAA District I. (Lombardi Dep. at 99,108.) No female official has ever officiated a boys’ championship game at the state level. (Cashman Dep. at 145; Lombardi Dep. at 184.) EEOC issued plaintiff a right-to-sue letter on August 20, 1996. In plaintiffs amended complaint, she asserts claims against PIAA for violations of Title VII and Title IX, the Equal Protection Clause of the Fourteenth Amendment and 42 U.S.C. § 1983, and the First Amendment, as well as state law claims under Pa. Const, art. 1, § 7 (freedom of speech) and Pa. Const, art. 1, § 28 (Equal Rights Amendment). Defendant has filed a motion for summary judgment, and plaintiff has filed a motion for partial summary judgment. ISSUES OF AGENCY For many of the claims in this case, defendant’s liability will turn upon whether Harry Sheldrake and his successor James Faulkner, in performing their work as assignors, were acting as agents or servants of PIAA. Much of the assignors’ relevant conduct arose out of their relationship with the Delco Chapter, and not from any relationship they may have had with PIAA’s Board of Control or a district committee. Therefore, the jury must necessarily decide whether the Delco Chapter stands in a relationship with PIAA such that defendant PIAA may be held liable for Delco Chapter’s conduct. The jury must also decide whether the assignors were agents or servants of the Delco Chapter, which could establish that they were sub-agents or subservants of PIAA. If the assignors were not directly or indirectly acting as agents or servants of PIAA, then PIAA is not hable for any discriminatory practices the assignors might have committed against plaintiff. I. RELEVANT PRINCIPLES OF COMMON-LAW AGENCY In determining an employer’s vicarious liability under Title VII, the United States Supreme Court recently emphasized that “a uniform and predictable standard must be established as a matter of federal law. We rely ‘on the general common law of agency, rather than on the law of any particular State, to give meaning to these terms. Burlington Industries, Inc. v. Ellerth, - U.S. -, -, 118 S.Ct. 2257, 2265, 141 L.Ed.2d 633,-(1998) (quoting Community for Creative Non-Violence v. Reid, 490 U.S. 730, 740, 109 S.Ct. 2166, 2173, 104 L.Ed.2d 811 (1989)). The Court in Burlington points to the Restatement (Second) of Agency (1957) (hereinafter “Restatement”) as “a useful beginning point for a discussion of general agency principles,” although “common-law principles may not be transferable in all their particulars to Title VII.” Id. at 2266 (quoting Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 72, 106 S.Ct. 2399, 2408, 91 L.Ed.2d 49 (1986)). A. Definition of Relationships Under Agency Law Where one party agrees to act on another’s behalf, there are three relevant relationships that may be possible between them, based primarily upon the second party’s control or right to exercise control over the actor. The actor may be: (1) a servant, (2) an agent independent contractor, or (3) a non-agent independent contractor. AT & T v. Winback & Conserve Program, Inc., 42 F.3d 1421, 1437-39 (3d Cir.1994). The distinction between a servant, an agent, and a non-agent is critical due to the liability implications for the hiring party. The relationship between principal and agent is defined as “the fiduciary relation which results from the manifestation of consent by one person to another that the other shall act on his behalf and subject to his control, and consent by the other so to act.” General Building Contractors Ass’n, Inc. v. Pennsylvania, 458 U.S. 375, 392, 102 S.Ct. 3141, 3151, 73 L.Ed.2d 835 (1982) (quoting Restatement § 1(1)). The master-servant relationship is a specialized kind of principal-agent relationship. While a servant necessarily must be an agent, “a finding of agency is not tantamount to a finding of a master-servant relationship.” Williamson v. Consolidated Rail Corp., 926 F.2d 1344, 1349 (3d Cir.1991) (quoting Kelley v. Southern Pacific Co., 419 U.S. 318, 325, 95 S.Ct. 472, 477, 42 L.Ed.2d 498 (1974) (citing Restatement § 2)). Rather, “[a] master-servant relationship is a form of agency in which the master employs the servant as ‘an agent to perform service in his affairs’ and ‘controls or has the right to control the physical conduct of the other in the performance of the service.’ ” General Building, 458 U.S. at 392, 102 S.Ct. at 3151 (quoting Restatement § 2). The word “servant,” used as a term of art in agency law, is generally the same as “employee in modern day parlance.” McCarthy v. Recordex Service, Inc., 80 F.3d 842, 853 (3d Cir.1996); see Restatement § 2 cmt. d. The difference between a mere agent and a servant depends “not so much on ‘the fact of actual interference or exercise of control by the employer ... but the existence of the right or authority to interfere or control, which renders one a servant rather than an independent contractor.’ ” Jones v. Century Oil U.S.A., Inc., 957 F.2d 84, 86-87 (3d Cir.1992) (citations omitted). The Third Circuit has pointed out that “the determining factor is not the way in which plaintiff[ ] or defendant regards this relationship but “what it really was under the facts and applicable rules of law.’” Id. “[A] master not only controls the results of the work but also may direct the manner in which such work shall be done, and a servant, in rendering the agreed services, remains entirely under the control and direction of the master.” Id. (quoting Smalich v. Westfall, 440 Pa. 409, 269 A.2d 476, 481 (1970)). An independent contractor may be an agent or a non-agent, but cannot be a servant, since “servant” and “independent contractor” are antithetical terms. McCarthy, 80 F.3d at 853 (citing Restatement § 2 cmt. b). Where prerequisites of agency, such as control, are not satisfied, a non-agent independent contractor relationship may exist: A person who contracts to accomplish something for another or to deliver something to another, but who is not acting as a fiduciary for the other is a non-agent contractor. He may be anyone who has made a contract and who is not an agent. The term is used colloquially to describe builders and others who have contracted to accomplish physical results not under the supervision of the one who has employed them to produce the results. Winback, 42 F.3d at 1439 (quoting Restatement § 14N cmt. b). B. Liability of Master or Principal to Third Parties In adapting the common law of agency to Title VII concepts, agency law relating to intentional torts, rather than negligent torts, is applied to determine an employer’s liability. See Burlington, 118 S.Ct. at 2266 (applying Restatement § 219) (“Sexual harassment presupposes intentional conduct.”) Like a sexual harassment claim, an employment discrimination claim for disparate treatment requires proof of intentional conduct. International Bhd. of Teamsters v. United States, 431 U.S. 324, 335 n. 15, 97 S.Ct. 1843, 1854 n. 15, 52 L.Ed.2d 396 (1977). The distinction between an agent and a servant is critical due to the liability implications for the principal. It is a central principle of agency law that “[a] master is subject to liability for the torts of his servants committed while acting in the scope of their employment.” Burlington, 118 S.Ct. at 2266 (quoting Restatement § 219(1)); Jones, 957 F.2d at 86-87. “It is because a master has the right to exercise control over the physical activities of the servant within the time of service, that he is vicariously liable [even] for the servant’s negligent acts committed within the scope of his employment.” Id. (quoting Smalich v. Westfall, 440 Pa. 409, 269 A.2d 476, 481 (1970)) (internal quotations omitted). As a matter of policy, “[i]t would be unjust to permit an employer to gain from the intelligent cooperation of others without being responsible for the mistakes, the errors of judgment and the frailties of those working under his direction and for his benefit.” Winback, 42 F.3d at 1434 (citing Petro-Tech, Inc. v. Western Co. of North America, 824 F.2d 1349, 1358 (3d Cir.1987) (quoting Restatement § 219 cmt. a)). Intentional discrimination may be within the scope of a servant’s employment. The Restatement provides: Conduct of a servant is within the scope of employment if, but only if: (a) it is of the kind he is employed to perform; (b) it occurs substantially within the authorized time and space limits; (c) it is actuated, at least in part, by a purpose to serve the master.... Restatement § 228(1); see Aliota v. Graham, 984 F.2d 1350, 1358 (3d Cir.1993) (applying § 228 and predicting Pennsylvania would adopt same). “There are instances, of course, where a supervisor engages in unlawful discrimination with the purpose, mistaken or otherwise, to serve the employer,” such as when the employer has a policy of discouraging women from seeking advancement, and the discrimination furthers that policy. Burlington, 118 S.Ct. at 2266 (citing Sims v. Montgomery County Comm’n, 766 F.Supp. 1052, 1075 (M.D.Ala.1990)). Furthermore, “[i]n limited circumstances, agency principles impose liability on employers even where employees commit torts outside the scope of employment.” Burlington, 118 S.Ct. at 2267 (citing Restatement § 219(2)). This may occur, inter aha, where “the master was negligent or reckless,” Restatement § 219(2)(b), or where the servant “was aided in accomplishing the tort by the existence of the agency relation.” Id. § 219(2)(d); see generally Burlington, 118 S.Ct. at 2268. A principal generally will not be held hable for the torts of his agent who is an independent contractor, not a servant. Win-back, 42 F.3d at 1437. However, there are many exceptions to that general rule. The principal may be liable if the agent’s tortious conduct is authorized but unintended, “[i]f the agent reasonably misunderstands the principal’s meaning which is ambiguous in light of the circumstances.” Restatement § 215. Even if unauthorized, a principal “is often subject to liability for the unauthorized conduct of an agent with respect to matters which, under the agreement creating the relation, he has the right to direct- [Liability is normally based upon the fact that the tort is brought about in the course of an undertaking for the benefit, and subject to the right, of the principal to control his servant or other agent.” Restatement § 216 cmt. a. Where there is no agency at all, liability must be based on other theories, such as apparent authority, under which the court examines the principal’s actions and the reasonable beliefs of third parties. Id. at 1439-40. II. THE DELCO CHAPTER’S RELATIONSHIP TO PIAA Plaintiff does not clearly describe the relationship she seeks to establish between PIAA and Delco Chapter, sometimes referring to “PIAA’s Delco Chapter” (Pl.’s Mem. Summ. J. at 10,15; see id. at 7, 28), or to the chapter as PIAA’s “subunit” (id. at 31, 34). Plaintiffs own evidence, however, shows that the Delco Chapter is organized as a distinct association with its own constitution, by-laws, and officers. (Athletic Officials’ Manual, §§ I D, II.) “Subunit” is therefore not the appropriate term to describe its relationship to PIAA. By characterizing Delco Chapter as PIAA’s “subunit,” plaintiff may be attempting to demonstrate that Delco Chapter and PIAA are so closely integrated that they should be considered a single employer. As an alternative theory, plaintiff may show that PIAA is liable for Delco Chapter’s conduct because of a master-servant or principal-agent relationship between the two. Defendant PIAA, arguing against such a relationship, characterizes the chapters as “local groups of individuals who are not members of PIAA.” (PIAA Br. Mot. Summ. J. at 5). Chapters are formed and managed by PIAA-registered officials, and not by PIAA or its member schools. (Athletic Officials’ Manual § I D.) Defendant asserts as a fact that PIAA has no role in the selection of officials during the regular season. (PIAA Mem. Opp. Summ. J. at 19.) Defendant argues that it could not have delegated the task of selecting officials to the Delco Chapter as a principal delegating a task to an agent, because defendant had no such task to delegate. (Id.) Plaintiff provides evidence supporting an inference that each chapter is comprehensively regulated and controlled by PIAA from its inception. In order to be chartered by PIAA, each chapter must adopt a PIAA-approved constitution without modification. (Id. §§ I D 5, II.) This document, titled “Constitution and By-Laws of the Pennsylvania Interscholastic Athletic Association, Inc. Chapters of Registered Athletic Officials,” was revised by the PIAA Board of Control in 1986. (Athletic Officials’ Manual § II, hereinafter “PIAA Chapter Const.”) This required constitution provides that whenever PIAA adopts new rules, they become binding upon all chapters in the following season. (PIAA Chapter Const, art. VI.) PIAA may revoke a charter for failure to follow PIAA rules. (PIAA Const, art. III.) A regulation imposed by PIAA requires each registered official to join a PIAA-ehartered local chapter of registered officials, such as the Delco Chapter, and to attend meetings of that chapter. (Athletic Officials’ Manual § I C 1.) Each member and officer of a chapter must be a PIAA-registered official. (PIAA Chapter Const, arts. IV, VII.) Members of each chapter are required to pay dues directly to PIAA. (PIAA Chapter Const, art. V, § 2.) A chapter must formally report its membership and meeting dates to PIAA annually. (PIAA Chapter Const, art. X.) Given these facts, plaintiff urges that PIAA has the authority to control the Delco Chapter, and in fact exercised that power to control assignments of officials through the Delco Chapter. (Fromson Decl. Opp. Summ. J. Ex. 1.) The party asserting the existence of an agency relationship bears the burden of showing it. Mahon v. City of Bethlehem, 898 F.Supp. 310, 312 (E.D.Pa.1995) (citing Volunteer Fire Co. of New Buffalo v. Hilltop Oil Co., 412 Pa.Super. 140, 602 A.2d 1348, 1351 (1992)). Because the facts relating to PIAA’s right to exercise control over the Delco Chapter are disputed, the question of agency will be for the jury to decide. Woolfolk v. Duncan, 872 F.Supp. 1381, 1392 (E.D.Pa.1995). Both motions for summary judgment will be denied as to whether PIAA may be held liable for the Delco Chapter’s conduct. III. THE ASSIGNORS’ RELATIONSHIP TO PIAA AND THE DELCO CHAPTER It will be necessary to determine whether PIAA is liable for the acts of Sheldrake or Faulkner under the general common law of agency. Burlington, 118 S.Ct. at 2265. Unless the facts are undisputed, whether a person is a servant or an independent contractor for liability purposes is a jury question. See Woolfolk, 872 F.Supp. at 1392 (citing Feller v. New Amsterdam Cas. Co., 363 Pa. 483, 70 A.2d 299, 300-301 (1950)). Plaintiff, as the party asserting the existence of an agency relationship, bears the burden of demonstrating that relationship. See Mahon, 898 F.Supp. at 312. Plaintiff has produced little evidence tending to show the existence of a direct principal-agent or master-servant relationship between the assignors and PIAA. However, if the Deleo Chapter is found to be a servant or agent of PIAA, the jury must also consider whether the assignors were servants or agents of the Deleo Chapter, which would create a chain linking the assignors to defendant PIAA as subservants or subagents. Such a situation is contemplated in the general common law of agency. The Restatement defines a subservant as a person appointed by a servant empowered to do so, to perform functions undertaken by the servant for the master and subject to the control as to his physical conduct both by the master and by the servant, but for whose conduct the servant agrees with the principal to be primarily responsible. Restatement § 5(2). The subservant relation exists where “the servant is to direct the conduct of the subservant who is to be subject also to the superior power of control which the master may exercise.” Id. cmt. e. In other words, the principal may be vicariously liable under Restatement § 219 for the conduct of an employee, servant, or subser-vant acting within the scope of his employment, but is not generally hable for the conduct of an independent contractor or non-servant who is merely an agent or subagent acting within the scope of his agency. See Restatement §§ 5, 219 & cmt. b. The subservant relationship may be established where the putative employee is “a subservant of a company that was in turn a servant of the [defendant].” Kelley v. Southern Pacific Co., 419 U.S. 318, 324, 95 S.Ct. 472, 476, 42 L.Ed.2d 498 (1974) (applying common-law agency principles under FELA) (citing Restatement § 5(2)). Section 220 of the Restatement defines who is a servant, and although it is “directed primarily at determining whether a particular bilateral arrangement is properly characterized as a master-servant or independent contractor relationship, ... [it] can also be instructive in analyzing the three-party relationship between two employers and a worker.” Id. (citing Restatement § 220(2)). For liability purposes, a subagent is treated as an agent, and a subservant is treated as a servant. To establish the liability of defendant PIAA under the subservant theory, plaintiff must show both that Deleo Chapter was the servant of PIAA, and that the individual assignors were employees or servants of Deleo Chapter. If Deleo Chapter is an agent but not a servant of PIAA, or if an assignor is an agent but not a servant of Deleo Chapter, the assignor is a subagent of PIAA. The distinction between a servant and an agent independent contractor depends primarily upon the right of control capable of being exercised by the principal; servants “generally are employees of the principal, and are subject to physical control by the principal.” Winback, 42 F.3d at 1434-35. “Persons who render service but retain control over the manner of doing it are not servants.” Id. at 1435 (quotation omitted). An agent who is subject only to “general control and direction by the principal” is not a servant but an agent independent contractor. Id. (quotation omitted). Portions of the deposition evidence offered by defendant would be sufficient to support a finding that the Delco Chapter had the right or authority to control or interfere with an assignor’s performance of his work; for example, by establishing a system for evaluating officials and requiring an assignor to base his decisions upon those evaluations. According to James Faulkner, the Delco Chapter’s evaluation committee gave recommendations to the assignor, which were followed. (Faulkner Dep. at 66-68.) Harry Sheldrake testified that he was given the assignor’s job by the executive committee of the Delco Chapter (Sheldrake Dep. at 27), and that he understood himself to be assignor “for the chapter” from 1984 until 1994 or 1995. (Id. at 22-23.) As assignor, Sheldrake attended the chapter’s committee meetings, although he was not a member of any committee. (Id. at 35.) Sheldrake further testified that in 1995, due to plaintiff’s complaint of discrimination, the Delco Chapter “felt like they didn’t want to be involved,” and said “You’re on your own,” which would support an inference that he had not previously been acting on his own. (Id. at 31-32.) Other portions of Sheldrake’s deposition, however, would support a finding that an assignor acts independently of the Delco Chapter. Sheldrake testified that “an assignor, to begin with, he can do what he wants, period.” (Id. at 37.) Asked if he had ever received “any instructions from anyone as to what to do as the assignor,” Sheldrake responded, “No, I’m my own boss.” (Id. at 51.) He stated, “I was assigned by the Del Yal league to assign their schools.... It has nothing to do with the [Delco Chapter] officials.” (Id. at 38.) Sheldrake was compensated by the Del Val league. (Id. at 62.) Finally, when Sheldrake decided to retire from his position as assignor, he communicated that decision to an official of the Del Val league, rather than the Delco Chapter, and recommended his own successor. (Id. at 46-48; Forjohn Dep. at 22.) The Del Val league made the final decision that Faulkner would be the next assignor. (Id.) Because the record indicates that there are disputed material facts regarding whether an assignor is an agent or servant of the Delco Chapter, summary judgment is not appropriate on the issue of agency. Therefore, for purposes of evaluating the cross-motions for summary judgment, I will assume without deciding that all questions of agency will be resolved in favor of the non-movant. PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT I will address plaintiffs motion for partial summary judgment first. Plaintiff does not seek summary judgment based upon on her allegations of disparity in the quality or quantity of games to which female officials were assigned. (Pl.’s Mem. Summ. J. at 2 n. 1.) Plaintiff also excludes her allegations of retaliation from this motion; therefore, her claims under the First Amendment and the Pennsylvania Constitution art. 1, § 7, will not be considered at this time. (Id.) Central to each of plaintiffs remaining claims is her allegation that defendant “adopt[ed] and enforc[ed] gender-based assignment policies and practices which deprive qualified female officials of the opportunity to officiate boys’ basketball games.” (Amended Compl. ¶¶ 55, 58, 62, 64.) Because there are disputed material facts relating to this central proposition, plaintiffs motion for summary judgment must be denied on each claim. For purposes of evaluating plaintiffs motion for partial summary judgment, I must accept all of PIAA’s evidence as true, and give PIAA the benefit of all favorable inferences therefrom. In so doing, I recognize that there are disputed material facts that preclude a finding that either an assignor or the Delco Chapter is an agent of PIAA as a matter of law. I. TITLE VII Plaintiff has not argued a disparate impact theory with respect to this case, and has instead characterized her Title VII claim as a disparate treatment action. (Pl.’s Mem. Summ. J. at 19.) Proof of discriminatory intent is necessary to state a disparate treatment claim. International Bhd. of Teamsters, 431 U.S. at 335 n. 15, 97 S.Ct. at 1854 n. 15. To establish such proof under Title VII, the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), applies here: “Once the plaintiff establishes a prima facie case, the burden shifts to the defendant to articulate a legitimate non-diseriminatory reason for the [employment decision]. If the defendant articulates such a reason, the plaintiff then must prove that the facially legitimate reason was a pretext for a discriminatory motive.” In re Carnegie Center Assocs., 129 F.3d 290, 295 (3d Cir.1997) (citing Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S.Ct. 1089, 1093, 67 L.Ed.2d 207 (1981)). The parties dispute whether the alleged disparate treatment in this case is facial discrimination or pretextual discrimination. See Healey v. Southwood Psychiatric Hosp., 78 F.3d 128, 131-32 (3d Cir.1996). Plaintiff asserts that a system of overt and facial discrimination is established by a gender-based assignment process, relieving plaintiff of the burden of establishing a prima facie case. Defendant admits to no such system of classifying officials by gender in assignments. There is, however, no dispute that boys’ and girls’ games are openly classified by the gender of the athletes, and that separate lists are maintained of officials selected for boys’ and girls’ playoff games. (Ruoff Dep. at 99.) I need not determine whether overt gender classifications involving boys’ and girls’ games would suffice to establish a facially discriminatory employment policy regarding gender-based assignment of officials to those games because plaintiff has, as a matter of law, met the burden of establishing a prima facie case. To establish a prima facie case, a plaintiff must show that she is a member of a protected class, that she was qualified for her position, and that an adverse decision occurred “under conditions that give rise to an inference of unlawful discrimination.” Geraci v. Moody-Tottrup, Int’l, Inc., 82 F.3d 578, 580 (3d Cir.1996) (quoting Burdine, 450 U.S. at 253, 101 S.Ct. at 1093). Plaintiff has made out a prima facie case of intentional discrimination. It is undisputed that Noreen Kemether is a woman who has met PIAA’s requirements to become registered as a basketball official, and who is therefore qualified — at least meeting “the threshold paper qualification,” as defendant demurs — to officiate interscholastic basketball games. (Def.’s Mem. Opp. Summ. J. at 12.) Based upon the deposition testimony in the record, there is substantial evidence giving rise to an inference of unlawful discrimination in the assignment process during the regular season. The assignors’ testimony reflected an apparently stereotypic view of women’s capabilities. Faulkner opined that “very few [women officials] can keep up with the pace with the boys’ games as far as running up and down the floor and positioning. Just they were not educated at the boys’ level so they really don’t know how quick it’s going to be compared to doing a girls’ varsity game.” (Faulkner Dep. at 116-17.) Sheldrake was also willing to generalize about the capabilities of male and female officials: Q: Are all the male officials in the chapter faster than the female officials in the chapter? A: Maybe not all of them. It all depends on what category you’re talking about. I’d say yes. Q: Yes? A: Period. (Sheldrake Dep. at 177-78.) Consistently with the foregoing generalization, Sheldrake testified that on the occasions when he himself officiated games between 1990 and 1996, he moved “faster than every girl [official] that was in there, period,” despite disabling arthritis since 1984, and “[a]t my age even,” having been retired since 1986. (Id. at 12-13,176-77). The assignors’ expressed sentiments were consistent with the assignment procedures actually implemented. In 1991 or 1992, the Delco Chapter’s Evaluation Committee published a “Referee Evaluation List,” which identified officials qualified for boys’ varsity or junior varsity games, ranking them by categories. (Fromson Decl. Ex. 2; Scanlan Dep. at 22-24.) This list included 99 men and no women, and included a notation, “If your name doesn’t appear in the above catagories [sic] your rating is JUNIOR HIGH or you are working girls[’] varsity/jv.” (From-son Decl. Ex. 2.) Although the Evaluation Committee ceased to operate, partly in response to Kemether’s EEOC complaint (Sheldrake Dep. at 104-05), the assignors continued to use and maintain this list, and assigned only male officials to boys’ varsity and junior varsity games. (Sheldrake Dep. at 28-29, 54, 61, 105, 131', 143; Scanlan Dep. at 34r-35.) There was no list of officials approved for girls’ varsity games. (Sheld-rake Dep. at 135.) There is also some evidence of discrimination during post-season games. PIAA District I and PIAA’s Board of Control selected no women to officiate boys’ playoff or championship games. Plaintiffs evidence regarding the process by which recommendations are made supports an inference that the alleged discrimination during the regular season is incorporated into PIAA’s selection process, despite the use of facially neutral criteria. While it remains disputed whether the assignors and the' Delco Chapter are agents of PIAA, it is clear that the total absence of any female officials from the boys’ playoff list gave PIAA and its district committee grounds from which it could have inferred that an official’s gender may have been taken into account improperly by the Delco Chapter, its Evaluation Committee, or the assignors. Plaintiff points out that these signs may have been ignored by PIAA due to long-standing gender stereotypes, evidenced by a District I officer’s statement that “what you are dealing with is just a tradition of men working boys’ games.” (Ruoff Dep. at 126.) PIAA has articulated a number of nondiscriminatory reasons why Kemether was not assigned to officiate the games she desired. Among them, PIAA suggests that plaintiffs varsity game assignments in the years prior to her EEOC complaint were consistent with those of other newcomers to the Delco Chapter. (Sheldrake Dep. at 29, 229, 235.) PIAA suggests that plaintiff is typical of many officials, regardless of gender, who complain that they are not rated as highly as they deserve. (Faulkner Dep. at 77.) PIAA has also proffered reasons that are more personal to Kemether, and not invidiously discriminatory in nature; for instance, the observation that plaintiff declined to attend scrimmages at which her skills could have been evaluated (Wisniewski Dep. at 56; Sheldrake Dep. at 223-24), and the assignor’s belief that plaintiff had improperly changed a contract and missed a game to which she was assigned (Sheldrake Dep. at 247-55). In addition, individuals who watched plaintiff officiate observed that she was “lackadaisical” (Watkins Dep. at 47-49; Wisniewski Dep. at 59-60), “did not hustle” (id. at 59-60), was lacking in the requisite skills (id. at 72, 86), or was simply not as good an official as some other women and men (Stephens Dep. at 101,107). Since PIAA has proffered legitimate nondiscriminatory reasons, “the presumption of discrimination arising from the prima facie case drops away, leaving the burden on [plaintiff] to prove that [defendant’s proffered reasons were pretextual.” Geraci, 82 F.3d at 580. In addition to proving pretext, the plaintiff must prove by a preponderance of the evidence that she was intentionally discriminated against on the basis of gender. “Proof of one without the other will not suffice.” Seman v. Coplay Cement Co., 26 F.3d 428, 438 & n. 13 (3d Cir.1994) (citing St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 511 & n. 4, 113 S.Ct. 2742, 2749 & n. 4, 125 L.Ed.2d 407 (1993)). Plaintiff has not rebutted defendant’s prof-ferred reasons with specificity, and has not shown an absence of evidence supporting each of them. On plaintiffs motion for summary judgment, the court must believe the evidence of the defendant, and must draw all reasonable inferences in the defendant’s favor. Anderson, 477 U.S. at 255, 106 S.Ct. 2505. I conclude that the facts remain disputed as to whether any or all of defendant’s reasons were pretextual, and as to whether any discrimination against plaintiff on account of her gender in fact occurred. For this reason, summary judgment will be denied to plaintiff on her claims under Title VII. II. TITLE IX The Title VII standard for proving discriminatory treatment will also be applied to plaintiffs claim under Title IX. The burden-shifting framework of McDonnell Douglas is particularly appropriate in a Title IX case where a plaintiff alleges that intentional sex discrimination motivated an employment decision, and the defendant advances a nondiseriminatory reason to justify the decision. See, e.g., Yusuf v. Vassar College, 35 F.3d 709 (2d Cir.1994); Preston v. Commonwealth of Virginia ex rel. New River Community College, 31 F.3d 203 (4th Cir.1994); Roberts v. Colorado State Bd. of Agric., 998 F.2d 824 (10th Cir.1993); Lipsett v. University of Puerto Rico, 864 F.2d 881, 897 (1st Cir.1988); Hankins v. Temple Univ., 829 F.2d 437, 440-41 (3d Cir.1987) (using McDonnell Douglas analysis under Titles VI and VII). The McDonnell Douglas method of indirect proof is justified both within and outside the Title VII context because direct evidence of discriminatory motive is usually difficult to obtain, see Hankins, 829 F.2d at 440, and this method is well-suited to determining a defendant’s true motives in cases where the defendant has disavowed any reliance on discriminatory reasons for its actions. See, e.g., Lipsett, 864 F.2d at 899. Because there are disputed material facts regarding whether actual discriminatory treatment took place under the Title VII standard discussed above, plaintiffs summary judgment motion must also be denied on her claims under Title IX. III. PENNSYLVANIA EQUAL RIGHTS AMENDMENT The Pennsylvania Equal Rights Amendment (“ERA”) reads as follows: “Equality of rights under the law shall not be denied or abridged in the Commonwealth of Pennsylvania because of the sex of the individual.” Pa. Const, art. 1, § 28. There is a private right of action for cases of gender discrimination under the Pennsylvania ERA. Pfeiffer v. Marion Center Area School District, 917 F.2d 779, 789 (3d Cir.1990) (citing Bartholomew v. Foster, 115 Pa.Cmwlth. 430, 541 A.2d 393 (1988), aff'd, 522 Pa. 489, 563 A.2d 1390 (1989)). In Commonwealth ex rel. Packel v. Pennsylvania Interscholastic Athletic Ass’n, 18 Pa.Cmwlth. 45, 334 A.2d 839 (1975), the Commonwealth Court determined that PIAA is a state actor, and is subject to the scrutiny imposed by the ERA. 334 A.2d at 842 (citing Harrisburg School District v. Pennsylvania Interscholastic Athletic Ass’n, 453 Pa. 495, 309 A.2d 353 (1973)). The court held that a PIAA by-law barring girls from participating in interscholastic sports with boys violated the Pennsylvania ERA because the provision embodied the stereotype that girls are generally weaker and boys generally more skilled at athletics. Id. at 842-43. In its most recent ease construing Pennsylvania’s ERA, the Third Circuit cited Packel with approval. Williams v. School District of Bethlehem, 998 F.2d 168, 177 (3d Cir.1993) (citing Packel, 334 A.2d at 843). The Williams court held that the ERA is violated if a gender-based classification “in connection with team sports is based on impermissible assumptions and stereotypes about the [genders’] comparative characteristics or abilities,” unless the differential treatment is “reasonably and genuinely based on physical characteristics unique to one sex.” Id. (quoting Fischer v. Department of Public Welfare, 509 Pa. 293, 502 A.2d 114 (1985)). In the absence of a clear ruling from the Supreme Court of Pennsylvania on the appropriate level of scrutiny to be applied to ERA claims, the Third Circuit has concluded that “it is the better course to use the standard more favorable to the plaintiff under the state E.R.A. in light of the strong state policy to equalize opportunities for the sexes.” Williams, 998 F.2d at 179. The test to be applied is “whether the [challenged] rule bears a necessary relationship to a ‘compelling state interest.’” Id. (citing City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 440, 105 S.Ct. 3249, 3254, 87 L.Ed.2d 313 (1985)). Plaintiffs motion for summary judgment will be denied on this claim under the Pennsylvania ERA because, as discussed above, the material facts relating to discriminatory treatment are disputed as to both the regular season and the post-season. In addition, at least in so far as Sheldrake claimed, there is a material dispute of fact as to whether assignment policies during the regular season were based on actual and relevant physical differences between male and female officials. See Williams, 998 F.2d at 179 (remanding for factfinding as to existence of “real physical differences” warranting different treatment); Fischer, 502 A2d at 125. If the assignors’ policies are not justified by any such finding, a further material dispute remains as to whether the assignors were agents of PIAA such that the defendant may be held liable for the assignors’ conduct. IV. EQUAL PROTECTION CLAIM UNDER 42 U.S.C. § 1983 As a threshold determination before I may consider the merits of plaintiffs equal protection argument, I will address defendant’s point that under the Third Circuit’s controlling decision in Williams v. School District of Bethlehem, plaintiffs constitutional claims pursued through § 1983 are subsumed within her Title IX claim, and must be precluded. 998 F.2d at 176. Plaintiff has urged this court to disregard the Third Circuit’s unequivocal adoption of the preclusion doctrine in the context of Title IX claims. (Pl.’s Mem. Opp. Summ. J. PIAA at 20-22.) In Williams, parents challenged a school district’s exclusion of their son from a girls’ field hockey team under Title IX and under the due process and equal protection clauses of the Fourteenth Amendment. 998 F.2d at 170. The Third Circuit noted that “where a federal statute provides its own comprehensive enforcement scheme, Congress intended to foreclose a right of action under section 1983.” Id. at 176 (citing Middlesex County Sewerage Auth. v. National Sea Clammers Ass’n, 453 U.S. 1, 20-21, 101 S.Ct. 2615, 2626-27, 69 L.Ed.2d 435 (1981)). In its holding, the court specifically endorsed “the applicability of the Sea Clammers doctrine to cases in which plaintiff asserts a claim under title IX and the federal Constitution,” id., upholding its 1990 decision in Pfeif-fer. Under both Williams and Pfeiffer, it is clear that constitutional claims are indeed “subsumed” in Title IX, and that a district court, having addressed a Title IX claim, properly must refuse to hear a claim under 42 U.S.C § 1983. Williams, 998 F.2d at 176 (quoting Pfeiffer, 917 F.2d at 789). The Third Circuit’s approach recently has been vigorously approved and adopted by the Seventh Circuit. Waid v. Merrill Area Public Schools, 91 F.3d 857, 862-63 (7th Cir.1996). Nonetheless, plaintiff urges this court to consider several decisions of other circuits that have reached a contrary conclusion. Crawford v. Davis, 109 F.3d 1281, 1283 (8th Cir.1997); Seamons v. Snow, 84 F.3d 1226, 1233 (10th Cir.1996); Lillard v. Shelby County Bd. of Educ., 76 F.3d 716, 723 (6th Cir.1996). Although the reasoning of those courts is not without force, I am, of course, bound by the clear mandate of Williams and Pfeiffer. A single set of facts cannot lead to causes of action under both Title IX and § 1983 in this circuit. Pfeiffer, 917 F.2d at 789. Because plaintiffs Title IX claim survives both motions for summary judgment, this constitutional claim is subsumed therein. I will therefore deny plaintiffs motion for summary judgment on her Fourteenth Amendment claim brought under § 1983. DEFENDANT’S MOTION FOR SUMMARY JUDGMENT In considering PLAA’s motion for summary judgment, I will accept plaintiffs evidence as true, giving her as the non-moving party the benefit of all favorable inferences. For purposes of this motion, I will assume that agency issues are resolved in the non-movant’s favor, making PIAA liable for the acts of both the Delco Chapter and the assignors. I. TITLE VII In Count I of her amended complaint, plaintiff alleges that PIAA discriminated against her on the basis of sex in violation of Title VII. She argues that PIAA is an employer for purposes of Title VII liability, and that the matchmaking role of the assignors also makes PIAA liable under Title VII as an employment agency. PIAA counters that basketball officials are independent contractors, not employees of PIAA or its member schools, and that plaintiff was not subjected to any discriminatory employment practice as defined under Title VII. In evaluating the Title VII claims, I will first examine whether an employment relationship might exist between Kemether and PIAA. Next, I will consider whether PIAA might be liable based upon its control of Kemether’s access to employment with a third party, or as an employment agency. Finally, I will consider whether PIAA falls within the statutory requirements for jurisdiction as a Title VII employer. A. Standard for Determining Employment Relationship The Supreme Court recently confirmed in Walters v. Metropolitan Educational Enterprises, Inc., 519 U.S. 202, 117 S.Ct. 660, 136 L.Ed.2d 644 (1997), that the appropriate standard for determining whether an employment relationship exists for Title VII purposes is the test enunciated in Nationwide Mutual Insurance Co. v. Darden, 503 U.S. 318, 112 S.Ct. 1344, 117 L.Ed.2d 581 (1992). Walters, 117 S.Ct. at 666. Darden mandates the use of common-law principles of agency, summarized in thirteen specific factors to be considered: 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 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. 503 U.S. at 323-24, 112 S.Ct. at 1348-49 (quoting Community for Creative Non-Violence v. Reid, 490 U.S. 730, 751-52, 109 S.Ct. 2166, 2178-79, 104 L.Ed.2d 811). This test examines the totality of the circumstances in determining who is an employee, with no single factor being decisive. Id. The facts relating to agency relationships among PIAA, Delco Chapter, and the assignors are disputed. However, many of the facts defining the incidents of plaintiffs relationships with PIAA, Delco Chapter, Sheld-rake, and Faulkner are not materially in dispute. “While their significance to whether an employment relationship or an independent contractor relationship was created is vigorously debated, resolution of that debate is a question of law.” Cilecek v. Inova Health System Services, 115 F.3d 256, 261 (4th Cir.1997) (citation omitted). B. PIAA’s Employment Relationship with Kemether The potential employment relationship between Kemether and PIAA must be considered in two distinct parts: employment for regular season games, and employment for post-season games. During post-season playoff and championship events, a quite different array of material facts comes into play. For example, plaintiff has officiated regular season games at PIAA member schools, but has never been selected by PIAA to officiate a post-season game. PIAA does not dispute its comprehensive control over post-season games, including the selection and compensation of officials. Each of these factors is vigorously disputed with respect to the regular season. 1. PIAA as Plaintiffs Employer During the Regular Season The factors enumerated in Darden consistently refer to a “hiring party” and a “hired party,” and distinguish an independent contractor from an employee. 112 S.Ct. at 1348. Before attempting to apply the Darden analysis to the regular season, I must consider the antecedent question of whether plaintiff is even a “hired party” of PIAA or its alleged agents in the first instance. O’Connor v. Davis, 126 F.3d 112, 115 (2d Cir.1997). This “crucial and elementary initial inquiry — whether there exists an employment relationship, according to the ordinary meaning of the words” is obligatory before “jumping straight into verbal manipulation of the case law tests for an employment relationship.” Graves v. Women’s Professional Rodeo Ass’n, 907 F.2d 71, 73 (8th Cir.1990). A plaintiff who was not hired in the first instance, and is therefore neither an independent contractor nor an employee, falls outside “the conventional master-servant relationship as understood by the common-law agency doctrine.” O’Connor, 126 F.3d at 115 (quoting Darden, 503 U.S. at 322-23, 112 S.Ct. at 1348). Darden’s common-law agency analysis is not applicable to such a ease. Id.; Graves, 907 F.2d at 73. In Graves, a rodeo competitor brought a Title VII claim against a nonprofit corporation which sanctioned rodeo events and asserted “pervasive control” over its members by binding them to “a comprehensive set of rules and regulations” as contestants. 708 F.Supp. 233, 237 (W.D.Ark.1989), aff'd, 907 F.2d 71 (8th Cir.1990). The Eighth Circuit reviewed the dictionary definitions of “employer” and “employee,” pointing out: Central to the meaning of these words is the idea of compensation in exchange for services: an employer is someone who pays, directly or indirectly, wages or a salary or other compensation to the person who provides services — that person being the employee. Compensation by the putative employer to the putative employee in exchange for his services is not a sufficient condition, but it is an essential condition to idle existence of an employer-employee relationship. 907 F.2d at 73; cf. Walters, 117 S.Ct. at 664 (reviewing dictionary definitions of “have,” in deciding when an employer “has” an employee for Title VII purposes). In a recent decision, the Second Circuit considered a claim brought under Titles VII and IX. In O’Connor v. Davis, a college student performed work for a hospital as part of an educational internship, for which she received payment from her college in the form of federal work-study funds. 126 F.3d at 113. Applying Graves, the court held that the hospital was not plaintiffs employer under Title VII because of “the absence of either direct or indirect remuneration or the promise thereof’ from the hospital, and held that “the preliminary question of remuneration is dispositive,” making consideration of the Darden factors irrelevant. Id. at 115-16. There is no evidence of anything of value received by plaintiff from PIAA, directly or indirectly, other than liability insurance and a patch worn as part of the uniform. One patch is provided free of charge when an official registers with PIAA, and additional patches must be purchased for $2.00 each. (Athletic Officials’ Manual § I E 1(c).) The evidence of record cannot support an inference that either insurance or the patch is provided as indirect remuneration for services, because nothing indicates that a person must officiate any games or perform any other service in order to receive them. Rather, undisputed testimony indicates that insurance is provided to every registered official as “part of their dues.” (Lombardi Dep. at 64.) PIAA charges dues of $25 per year, and “use[s] part of that money to buy the insurance.” (Id.) To the extent that access to employment with PIAA member schools may be considered a benefit of an official’s relationship with PIAA, I note that “even benefits that create career opportunities are not always compensation.” Neff v. Civil Air Patrol, 916 F.Supp. 710, 712 (S.D.Ohio 1996) (citing Graves, 907 F.2d at 72). Where, as here, the putative employer requires no actual service in return for the benefit, there can be no “compensation.” For the proposition that control over employment suffices even in the absence of a conventional employment relationship, plaintiff cites Graves v. Lowery, 117 F.3d 723 (3d Cir.1997), Sibley Memorial Hosp. v. Wilson, 488 F.2d 1338, 1342 (D.C.Cir.1973), Poff v. Prudential Ins. Co., 882 F.Supp. 1534 (E.D.Pa.1995), and Burkey v. Marshall County Board of Educ., 513 F.Supp. 1084 (N.D.W.Va.1981). Because Sibley and Bur-key are premised upon control of access to employment, rather than control over employment, they will be discussed in a separate section of this opinion. In Graves v. Lowery, the Third Circuit held that Dauphin County could be a co-employer of state court clerks, where the county allegedly hired clerks for the court and “exercised the requisite control over [their] daily employment activities” through its funding, actions, and policies. 117 F.3d at 728. In Poff, a third party contractor actually hired the plaintiff, who worked at defendant’s site for six years. 882 F.Supp. at 1535. The Poff court turned to Darden’s common law agency test, and found genuine issues of fact as to defendant’s control over the manner and means by which the work was accomplished. Id. at 1536. Notably present in those cases, in addition to significant control, is direct or indirect remuneration by the defendant. There is no evidence on the record that PIAA, Delco Chapter, Sheldrake, or Faulkner ever directly or indirectly paid compensation to officials for services during the regular season, or made any promise to do so. (See Kemether Dep. at 146-47.) Rather, the evidence shows that an official’s compensation for regular season games is paid by the school for which she officiates a game. (Id.) This preliminary question of remuneration is dispositive of the issue of plaintiffs employment, and renders inapplicable the Dar-den factors relating to a “hiring party” or “hired party.” O’Connor, 126 F.3d at 115— 16; see also Smith v. Berks Community Television, 657 F.Supp. 794, 796 (E.D.Pa.1987). The relationship between PIAA and its registered officials “categorically resists classification as ‘employment’ according to the ordinary usage of that term.” Graves v. WPRA, 907 F.2d at 72-73. I conclude that no rational finder of fact could determine that defendant was plaintiffs employer during the regular season, and I will grant PIAA’s motion for summary judgment to that extent. As a consequence of this determination, jurisdiction over PIAA as an employer under Title VII cannot be premised upon considering officials as PIAA’s employees during the regular season. 2. PIAA as Employer of Officials During the Post-Season Because officials in the post-season receive direct remuneration from PIAA, there is a potential employment relationship to be determined under the principles of common-law agency expressed in Darden. While no single factor is decisive, the hiring party’s right to control the manner and means by which the work is accomplished is generally considered to be the most important factor of the Darden