Shephard v. Loyola Marymount Univ.

• Citation: 125 Cal.Rptr.2d 829,102 Cal.App.4th 837
• Decision Date: 03 October 2002
• Docket Number: No. B150210.,B150210.
• Court: California Court of Appeals
• Parties: Kisha SHEPHARD, Plaintiff and Appellant, v. LOYOLA MARYMOUNT UNIVERSITY et al. Defendants and Respondents.

125 Cal.Rptr.2d 829

102 Cal.App.4th 837

Kisha SHEPHARD, Plaintiff and Appellant, v. LOYOLA MARYMOUNT UNIVERSITY et al. Defendants and Respondents.

No. B150210.

Court of Appeal, Second District, Division 5.

October 3, 2002.

Certified for Partial Publication.^*

Haney, Buchanan & Patterson, Steven H. Haney; Colleen A. Deziel and Bruce T. Mcintosh for Plaintiff and Appellant.

Burke, Williams & Sorensen, Harold A. Bridges, Los Angeles, and H. Esther Kim for Defendants and Respondents Loyola Marymount University and Julie Wilhoit.

TURNER, P.J.

I. INTRODUCTION

Plaintiff, Kisha Shephard, appeals from a summary judgment entered in favor of defendants, Loyola Marymount University (the school) and Julie Wilhoit, on a complaint for race discrimination and breach of oral contract. The lawsuit arose out of the school's refusal to renew plaintiffs athletic scholarship and her removal from the women's basketball team. Defendants' summary judgment motion was brought and granted on grounds: plaintiffs cause of action for race discrimination in violation of the Fair Employment and Housing Act ("FEHA") (Gov.Code,¹ § 12900 et seq.) was barred as a matter of law because she was a student athlete and not a school employee; Ms. Wilhoit was not liable for damages because there is no individual liability under the FEHA; plaintiffs contract claim was barred by the statute of frauds; and plaintiff failed to exhaust her administrative remedies. Plaintiff opposed the summary judgment motion on its merits but also requested a continuance because of ongoing discovery proceedings. In addition, plaintiff requested leave to amend her complaint to assert fraud and negligent misrepresentation claims. The trial court denied the continuance and leave to amend requests but granted the summary judgment motion. In the published portion of this opinion, we address the question of whether plaintiff was an employee for purposes of the FEHA. We conclude plaintiff was not a school employee, she was a student who could not sue under the FEHA. Our decision is based solely on California statutory law. No constitutional question has been raised. No issue of federal law has been presented by plaintiff that controls the resolution of her FEHA claim. No issue has been raised as to the application of the antidiscrimination provisions of Title IX, 42 United States Code section 2000d. We affirm.

II. BACKGROUND

On April 21, 2000, plaintiff filed her complaint against defendants alleging causes of action for race discrimination (first) and breach of oral contract (second). The complaint alleged that Ms. Wilhoit, who is Caucasian, was the school's head women's basketball coach. Plaintiff, who is an African-American, was an Ail-American basketball star at Crenshaw High School in Los Angeles. She was highly recruited by a numerous Division I colleges. Plaintiff decided to attend the school based on promises that she would receive a four-year scholarship.

The complaint alleged that, while plaintiff was attending the school, Ms. Wilhoit engaged in a pattern and practice of creating and maintaining a racially discriminatory and hostile environment. Ms. Wilhoit frequently made racial remarks to plaintiff. The racial remarks included statements that plaintiff had a "ghetto mentality" and she "should run away" when police officers entered the gym during a practice. In May 1999, an unsigned letter from an anonymous concerned alumni sent to the school described some of the racial discrimination by Ms. Wilhoit directed at plaintiff and other players. Within days of the receipt of this letter, Ms. Wilhoit removed plaintiff from the team. Furthermore, it was alleged Ms. Wilhoit ordered the school to revoke plaintiffs scholarship. Plaintiff alleged that the discriminatory action violated the FEHA, which prohibits employers or their agents from discriminating against their employees on the basis of race. It was alleged that: plaintiffs scholarship was revoked because of her race; the school condoned and ratified Ms. Wilhoit's actions; plaintiff lost substantial benefits valued at a minimum of $26,000 a year; and she lost medical benefits and future lost earnings. In the second cause of action, plaintiff alleged that in 1997, she and the school entered into an oral contract for her scholarship to be automatically renewed for four years. The terms of the contract were partially set forth in a written document.

Defendants answered the complaint and moved for summary judgment. In the summary judgment motion, which was filed January 25, 2001, defendants argued summary judgment was required because plaintiff was not entitled to damages under the FEHA because she was not a school employee.

III. DISCUSSION

A. Standard of Review of an Order Granting Summary Judgment on the Merits

In Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850-851, 107 Cal. Rptr.2d 841, 24 P.3d 493, the Supreme Court described the burden of production on summary judgment motions as follows: "[F]rom commencement to conclusion, the party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law. That is because of the general principle that a party who seeks a court's action in his favor bears the burden of persuasion thereon. [Citation.] There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.... [¶][T]he party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact.... A prima facie showing is one that is sufficient to support the position of the party in question. [Citation.]"

We review the trial court's decision to grant the summary judgment de novo. (Johnson v. City of Loma Linda (2000) 24 Cal.4th 61, 65-66, 67-68 99 Cal.Rptr.2d 316, 5 P.3d 874; Sharon P. v. Arman, Ltd. (1999) 21 Cal.4th 1181, 1188, 91 Cal. Rptr.2d 35, 989 P.2d 121, disapproved on another point in Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 853, fn. 19, 107 Cal.Rptr.2d 841, 24 P.3d 493.) The trial court's stated reasons for granting summary judgment are not binding on us because we review its ruling not its rationale. (Szadolci v. Hollywood Park Operating Co. (1993) 14 Cal.App.4th 16, 19, 17 Cal.Rptr.2d 356; Barnett v. Delta Lines, Inc. (1982) 137 Cal.App.3d 674, 682, 187 Cal.Rptr. 219.)

B. Plaintiff Was Not an Employee for FEHA Purposes

Plaintiff contends the trial court erroneously found her FEHA claim was without merit because triable issues of material fact existed as to whether she was a school employee. The FEHA prohibits employment discrimination on certain enumerated classifications, one of which is on the basis of race. (§§ 12920, 12926, 12940.) The FEHA provides limited definitions of the terms "employee" and "employer." (§ 12926, subds.(c) & (d).) Section 12926, subdivision (c) states, "`Employee' does not include any individual employed by his or her parents, spouse or child, or any individual employed under a special license in a nonprofit sheltered workshop or rehabilitation facility." As can be noted, section 12926, subdivision (c) only provides a description of what is not an employee. Employer is defined as follows: "`Employer' includes any person regularly employing five or more persons, or any person acting as an agent of an employer, directly or indirectly, the state or any political civil subdivision of the state, and cities, except as follows: [¶] `Employer' does not include a religious association or corporation not organized for private profit." (§ 12926, subd. (d).) The first paragraph of section 12926, subdivision (d) does provide some definition of an employer. But the second paragraph of section 12926, subdivision (d) provides a description of what is not an employer. Beyond these limited definitions, the FEHA does not define an employer, employee, or what constitutes employment. In order to recover under the discrimination in employment provisions of the FEHA, the aggrieved plaintiff must be an employee. No decisional authority has addressed the specific issue of whether a student athlete who receives an athletic scholarship is a school employee under the FEHA.

However, persuasive decisional authority in the workers' compensation and public entity liability contexts provides guidance as to the meaning of the term "employee." Labor Code section 3352, subdivision (k) excludes a student athlete receiving an athletic scholarship from the term "employee." What is now Labor Code section 3352, subdivision (k), resulted from the Court of Appeal decision in Van Horn v. Industrial Acc. Com. (1963) 219 Cal.App.2d 457, 464-467, 33 Cal.Rptr. 169 (Van Horn), a workers' compensation case. In Van Horn, a student athlete received financial assistance from California Polytechnic State University San Luis Obispo, in exchange for playing football. Some of the money paid to the student was in the form of an athletic scholarship, which was funded by a booster club. The student was killed in an airplane crash while returning from an out-of-state football game against Bowling Green University. The student's heirs applied for workers' compensation death benefits on the theory that the decedent was an employee of Cal Poly San Luis Obispo. (Id. at pp. 460-463, 33 Cal.Rptr. 169). The Court of Appeal held that the student had an employment contract with the college and that his heirs were entitled to workers' compensation benefits. (Id. at pp. 464-468, 33 Cal.Rptr. 169.) The decision was premised on the theory the...