Mackey v. Bd. of Trs. of the Cal. State Univ., D072198

Docket NumberD072198
Decision Date23 January 2019
CourtCalifornia Court of Appeals Court of Appeals
Parties Lynette MACKEY et al., Plaintiffs and Appellants, v. BOARD OF TRUSTEES OF the CALIFORNIA STATE UNIVERSITY, Defendant and Respondent.

31 Cal.App.5th 640
242 Cal.Rptr.3d 757

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

D072198

Court of Appeal, Fourth District, Division 1, California.

Filed January 23, 2019


Law Offices of John L. Burris, John L. Burris, Oakland, Ayana Curry ; Benjamin Law Group and Na'il Benjamin, San Francisco, for Plaintiffs and Appellants.

Andrews LaGasse Branch & Bell, Margaret C. Bell, and Shauna L. Sinnott, San Diego, for Defendant and Respondent.

DATO, J.

31 Cal.App.5th 646

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

31 Cal.App.5th 647

Cooper's claims were untimely and that the remaining plaintiffs could not show a triable issue on the merits.1

On plaintiffs' 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.

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

242 Cal.Rptr.3d 764

Civil Rights Act (Unruh Act) ( Civ. Code, § 51 et seq. ). 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 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.

FACTUAL AND PROCEDURAL BACKGROUND3

Danielle Cooper played on CSUSM's women's basketball team for two years—during both the 2011–2012 inaugural season and 2012–2013

31 Cal.App.5th 648

season.4 Although she was one of the top rebounders in California, head coach Sheri Jennum reduced her playing time by the end of the first season and did not include her as frequently in the starting lineup. Jennum variously yelled at Cooper, ostracized her from her teammates, and ignored her. Cooper came to believe Jennum's treatment was race-based because she appeared to reserve harsher treatment for the two African-American players on the team.

Cooper lodged complaints with Dean of Students Dilcie Perez and Director of Athletics Jennifer Milo, but did not believe they were registered or addressed.5 She was released from the team in April 2013 after the National Association of Intercollegiate Athletics (NAIA) concluded she had exhausted her eligibility. This came as a surprise to her; Jennum had previously told her she would have three years of eligibility.

Lynette Mackey, Kianna Williams, Sierra Smith, and Crystal Hicks (hereafter, the freshmen plaintiffs), joined the team as freshmen in the 2013–2014 season. That season, the team had at most six African-American players: the four freshmen plaintiffs, Melaya Gaines (also a freshmen), and Sherika Miller (an upper classman).6 Of the nine freshmen joining the team, five were African-American. Williams joined as a "red shirt," meaning she expected to practice but not compete.

242 Cal.Rptr.3d 765

During a retreat in September 2013, Jennum insisted that an injured Mackey participate in a team run before she was medically cleared. Jennum did not force two injured White players to join the run. Smith had notified Jennum in advance that she would be late to the retreat due to an ROTC event. When she arrived, Jennum appeared irritated and did not let her change into appropriate running shoes before the four-mile run. Early on, Smith perceived that Jennum was being harsher toward certain players, but it did not initially register that all those players were African-American.

Things came to a head on October 20, 2013, when the team participated in a breast cancer walkathon in Balboa Park. Team members were instructed to arrive at 7:30 a.m., but only Smith was on time. Mackey, Williams, Hicks, and Gaines carpooled and were the next to arrive, half an hour late. A visibly

31 Cal.App.5th 649

upset Jennum referred to the latecomers as "the group" and told them they could never ride together again because they were always late. When the rest of the team (including Miller) arrived even later than "the group," Jennum did not reprimand them or tell them not to ride together.

The freshmen plaintiffs perceived Jennum's comments that day as "racial" or "discriminatory" because they had never previously been late and had arrived earlier than almost everyone else. Williams and Smith wondered if Jennum based her comment on a stereotype that African-Americans were "always late." No one else on the team had nicknames, but all the African-American players were lumped together as "the group."

From that point, Jennum's treatment of the freshmen plaintiffs became harsher. They perceived differential treatment compared with their non-African-American peers, ranging from splitting them up when they stood or sat together, picking on them or yelling at them more, pulling them out of practice, and limiting their playing time at games. The freshmen plaintiffs felt they received fewer opportunities and had less leeway for mistakes than non-African-American players at the same seniority and skill levels. Jennum "continued to use the term ‘The Group’ to specifically refer to the black players on the team, and it was usually used in a negative connotation."

Mackey met with Milo around November 12 to discuss how Jennum was treating her and the other "group" members. Although Milo remembered Mackey as saying, "she did not think that this treatment was related to her race," Mackey recalled communicating the exact opposite. At the end of their meeting, Milo brought Jennum into the discussion. Jennum explained why she had made certain coaching decisions, and they seemed to end the meeting on a positive note.

After the next practice, however, Jennum convened a team meeting. Saying she had been accused of being a racist, she put each player on the spot and asked each individually if she agreed with that assessment. The freshmen plaintiffs viewed Jennum's actions as divisive and confrontational. When their turns came to speak, Williams and Smith stated they did not believe Jennum was a racist, but she did appear to discriminate against some players or treat some players differently. Both later explained they were reluctant to accuse Jennum of racism, but could not identify any commonality other than race to explain why certain players were targeted and not others. Jennum responded to Williams by claiming her reference to African-American players as "the group" during the walkathon was just sarcasm.

After this "Am I racist?" meeting, Jennum's treatment of "the group" seemed to

242 Cal.Rptr.3d 766

worsen. Mackey was injured earlier in the season but did not

31 Cal.App.5th 650

receive playing time after she was medically cleared. She disagreed with Jennum's comment that she favored one knee given her medical assessments, unencumbered participation in team passing drills, and praise from the assistant coach and athletic director. Although Gaines did receive playing time, that seemed inevitable given injuries on the roster to other players at her position. Smith could not understand why she, Mackey, and Hicks "were barely getting any opportunities to just even show or make mistakes" when non-African-American freshmen got those opportunities despite not being "perfect or amazing." Williams said it "came to a point where [she] was literally just standing there on the side of practice for two hours, doing absolutely nothing."

Near the end of November, Mackey approached Dean Perez. They held a three-way meeting with Jennum to discuss rebuilding communication. Afterwards, Mackey felt little had changed. She started seeing a therapist twice a week to manage the stress. She eventually fell one credit short of maintaining eligibility. Although that was the reason she was suspended from the team on December 19, 2013, she believed she fell behind because of Jennum's discriminatory treatment. She finished her missing credit over winter break but did not rejoin the team until after Jennum's eventual departure in the spring.

As a "red shirt" Williams did not travel with the team. But from November on, Jennum prohibited her even from dribbling or shooting and only let her participate in team discipline such as "suicide" sprints. Williams felt she was denied the opportunity to improve and develop into a collegiate player. In late November, Jennum told Williams that she would be "treated accordingly to the people [she] was hanging out with" and "assumed ... [to be] doing the same thing" as them; she construed this to mean...

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