Five African-American women on the basketball team at California State University at San Marcos (CSUSM) sued head coach Sheri Jennum and the Board of Trustees of the California State University, claiming Jennum had engaged in race-based discrimination and retaliation. They alleged she derogatorily referred to them as “the group,” reduced their playing time, afforded them fewer opportunities, punished them more severely and generally singled them out for harsher treatment as compared to their non-African-American teammates. The trial court granted both motions for summary judgment filed by the Board, concluding plaintiff Danielle Cooper’s claims were untimely and that the remaining plaintiffs could not show a triable issue on the merits.
On plaintiffs’ appeal from that ruling, the California Court of Appeal reversed the order granting summary judgment and directed the court to enter a new order granting summary adjudication on some, but not all, of plaintiffs’ claims. The Court held Plaintiffs cannot sue the Board under 42 United States Code sections 1981 and 1983 because CSUSM is not a “person” subject to suit under those statutes. That disposed of Cooper’s sole contention on appeal that her claim under section 1981 is timely. Turning to the remaining claims brought by the four “freshmen plaintiffs,” summary adjudication was improper as to their racial discrimination claims under title VI of the Civil Rights Act of 1964 (hereafter title VI) (42 U.S.C. § 2000d et seq.) and the Unruh Civil Rights Act (Unruh Act) (Civ. Code, § 51 et seq.).
Viewing the evidence, as the Could stated it must, in the light most favorable to the freshmen plaintiffs, the Board did not meet its moving burden to show the lack of a triable issue as to whether these plaintiffs suffered a materially adverse action under circumstances suggesting a racially discriminatory motive. For similar reasons, summary adjudication is improper on title VI retaliation claims brought by three of the four freshmen plaintiffs, Lynette Mackey, Kianna Williams, and Sierra Smith. Each of these women complained about Jennum’s discriminatory treatment and indicated how they suffered adverse consequences as a result. We reach a different conclusion as to plaintiff Crystal Hicks, who never made a complaint and denied facing any consequences as a result of complaints made by her peers.
In April 2015, Mackey, Williams, Smith, Hicks, and Cooper sued Jennum and the Board, alleging: racial discrimination and retaliation in violation of title VI; racial discrimination in violation of the Unruh Act; harassment, discrimination, and retaliation under sections 1981 and 1983; and negligent supervision.
Plaintiffs asserted these same claims against Jennum, adding an additional claim for intentional infliction of emotional distress. The Board filed two motions for summary judgment, one as to claims brought by Cooper and the other as to claims brought by the freshmen plaintiffs. The trial court granted both motions. It concluded Cooper’s claims were time barred—Cooper did not allege any offensive or inappropriate conduct after February 2013, and her complaint was filed more than two years later in April 2015. Moreover, her claims under sections 1981 and 1983 could not proceed against CSUSM, an ” ‘arm of the state’ ” that was not subject to suit under those statutes. As to the negligent supervision claim, the court concluded Cooper could not proceed because she had not complied with the California Tort Claims Act. (Gov. Code, § 810 et seq.)
Plaintiffs appealed the order granting the Board’s motions for summary judgment. The California Appeal Court construed their premature appeal as taken from the subsequently entered judgment. (Morales v. Coastside Scavenger Co. (1985) 167 Cal.App.3d 731, 733, fn. 1.)
Citing Will v. Michigan Dept. of State Police (1989) 491 U.S. 58 (Will), the trial court concluded the Board was “immune” from being sued under sections 1981 and 1983 because it is an “arm of the state.”
The freshmen plaintiffs challenge summary adjudication on their race discrimination claims under title VI (42 U.S.C. § 2000d et seq.) and the Unruh Act (Civ. Code, § 51 et seq.). Both statutes require a burden-shifting analytical framework in which (1) the plaintiff bears a prima facie burden to show discrimination, shifting the burden to (2) the defendant to proffer a race-neutral reason for the adverse action, which again shifts the burden to (3) the plaintiff to show the reason given is pretextual or some other evidence of discriminatory motive. But this burden-shifting framework must be adjusted at summary judgment, where the moving defendant bears the burden to show there is no triable issue of material fact. As we explain, when properly applied, defendant did not meet its burden, and summary adjudication is improper on the freshmen plaintiffs’ race discrimination claims.
Title VI prohibits intentional discrimination in federally funded programs. “No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” (42 U.S.C. § 2000d.) CSUSM’s college athletics qualify as a federally funded “program or activity.” (Id., § 2000d–4a.)
California’s Unruh Act creates a cause of action for any person who is denied the right to “full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever” based on that person’s “sex, race, color, religion, ancestry, national origin, disability, medical condition, genetic information, marital status, sexual orientation, citizenship, primary language, or immigration status.” (Civ. Code, §§ 51, subd. (b), 52.) The Unruh Act requires proof of intentional acts of race discrimination and does not cover disparate impact. (Koebke v. Bernardo Heights Country Club (2005) 36 Cal.4th 824, 854, citing Harris v. Capital Growth Investors XIV (1991) 52 Cal.3d 1142, 1175; cf. Munson v. Del Taco, Inc. (2009) 46 Cal.4th 661, 670 [disparate impact is available for disability discrimination].)
Race discrimination claims under title VI and the Unruh Act follow the analytical framework established under federal employment law. (See McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792, 802; Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 354 (Guz) [California has adopted the McDonnell Douglas burden-shifting framework for discrimination claims alleging disparate treatment]; Rashdan v. Geissberger (9th Cir. 2014) 764 F.3d 1179, 1182 [title VI]; Trigueros v. Southwest Airlines (S.D.Cal., Aug. 30, 2007, No. 05-CV-2256-L(AJB)) 2007 U.S.Dist. Lexis 64234, p. *4 [Unruh Act].)
The Board failed to meet its burden on summary judgment and adjudication. The judgment was reversed. The matter was remanded with instructions that the trial court vacate its order granting summary judgment and enter a new order granting summary adjudication as to the following claims: (1) all causes of action brought by Danielle Cooper; (2) all causes of action under sections 1981 and 1983 as to all plaintiffs; and (3) the cause of action for retaliation under title VI brought by plaintiff Crystal Hicks. The new order denied summary adjudication as to the remaining claims.
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Robert Rodriguez has litigated well over 100 family law cases and civil litigation matters including personal injury motor vehicle cases, dog bite and slip & fall cases, unlawful detainer, breach of contract, defamation & invasion of privacy, fraud, unfair business practice, malicious prosecution, wrongful termination, workplace and employment matters including sexual harassment, wage & hour violations, discrimination pursuant to the FEHA, Gov’t Code §§ 12940 et seq., violations of the FMLA & Pregnancy Leave, Civil Rights discrimination pursuant to 42 U.S.C. § 1983 and Title VII of the 1964 Civil Rights Act in the State of California and California federal district courts.
* Disclaimer – Robert Rodriguez is licensed to practice only in the State of California & this analysis is applied only under State of California law. Robert D. Rodriguez is also admitted to practice in the U.S. District Courts, Central, Northern & Eastern Districts of California. Robert Rodriguez has practiced in the State of California Court of Appeal.