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Mackey v. Board of Trustees of California State University

Court of Appeal of California, Fourth Appellate District, Division One

January 23, 2019, Opinion Filed



 [**763]  DATO, J.—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 (Board), 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 [*647]  Cooper's claims were untimely and that the remaining plaintiffs could not show a triable issue on the merits.1

On plaintiffs' [***2]  appeal from that ruling, we reverse the order granting summary judgment and direct the court to enter a new order granting summary adjudication on some, but not all, of plaintiffs' claims. 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.2 That disposes of Cooper's sole contention on appeal that her claim under section 1981 is timely.

CA(1)(1) Turning to the remaining claims brought by the four “freshmen plaintiffs,” summary adjudication is 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 (Civ. Code, § 51 et seq.).  [**764]  Viewing the evidence, as we 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 [***3]  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.

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31 Cal. App. 5th 640 *; 242 Cal. Rptr. 3d 757 **; 2019 Cal. App. LEXIS 60 ***; 2019 WL 289656

LYNETTE MACKEY et al., Plaintiffs and Appellants, v. BOARD OF TRUSTEES OF THE CALIFORNIA STATE UNIVERSITY, Defendant and Respondent.

Prior History:  [***1] APPEAL from a judgment of the Superior Court of San Diego County, No. 37-2015-00011529-CU-CR-CTL, Joan Marie Lewis, Judge.

Disposition: Reversed.


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Civil Procedure, Appeals, Standards of Review, De Novo Review, Evidence, Inferences & Presumptions, Inferences, Summary Judgment, Entitlement as Matter of Law, Genuine Disputes, Legal Entitlement, Summary Judgment Review, Standards of Review, Civil Rights Law, Section 1983 Actions, Elements, Color of State Law, Constitutional Law, State Sovereign Immunity, Governments, Legislation, Interpretation, Protection of Rights, Scope, Judgments, Burdens of Proof, Education Law, Racial Discrimination, Title VI, Proof of Discrimination, Burdens of Proof, Burden Shifting, Supporting Materials, Affidavits, Rule Application & Interpretation, Evidentiary Considerations, Abuse of Discretion, Admissibility, Procedural Matters, Rulings on Evidence, Opposing Materials, Statements as Evidence, Hearsay, Exceptions, Rule Components, Truth of Matter Asserted, Business & Corporate Compliance, Federally Assisted Programs, Civil Rights Act of 1964, Implied Causes of Action, Discrimination in Schools, Title VI, Protection of Rights, Intercollegiate & Interscholastic Athletics, Coaches, Labor & Employment Law, Evidence, Discrimination, Employment Practices, Intercollegiate & Interscholastic Athletics, Wrongful Termination, Constructive Discharge, Evidence, Retaliation, Retaliation, Protected Activities