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

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

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 she should no longer be friends with Mackey.

On December 19 Jennum brought Williams in for a meeting and told her, "We've decided you can never play for us." Williams was surprised because just a day before, Jennum and assistant coach Crystal Harris complimented her for making "good progress" after she had the rare chance to join practice. She felt her "sudden dismissal" was in retaliation for complaining and speaking out at the "Am I racist?" team meeting. After releasing Williams, Jennum sent her a barrage of text messages threatening to place a hold on her account (preventing class registration) unless she immediately returned her equipment.

Smith was a starter in high school but played only 30 seconds per game in three or four games at CSUSM. When she asked coaches why she was not playing, Jennum replied that she lacked a "fire" in her but could not

Smith resigned over winter break. In her exit paperwork, she indicated that she did not get playing time, was not given a valid reason why, and did not want to waste anyone's time. At deposition, she explained that she quit the team rather than face Jennum's discriminatory treatment. She felt Jennum had ruined her love for the game, making her not want to

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

DISCUSSION

We review a summary judgment ruling de novo, "considering all of the evidence the parties offered in connection with the motion (except that which the trial court properly excluded) and the uncontradicted inferences the evidence reasonably supports." ( Merrill v. Navegar , Inc. (2001) 26 Cal.4th 465 , 476, 110 Cal.Rptr.2d 370 , 28 P.3d 116 .) Summary judgment is proper if the record demonstrates there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law. ( Code Civ. Proc., § 437c, subd. (c) ; Aguilar v. Atlantic Richfield Co . (2001) 25 Cal.4th 826 , 843, 107 Cal.Rptr.2d 841 , 24 P.3d 493 ( Aguilar ).) "In performing our review, we view the evidence in a light favorable to the losing party ..., liberally construing her evidentiary submission while strictly scrutinizing the moving party's own showing and resolving any evidentiary doubts or ambiguities in the losing party's favor." ( Serri v. Santa Clara University (2014) 226 Cal.App.4th 830 , 859, 172 Cal.Rptr.3d 732 ( Serri ).)

Cooper raises a narrow challenge to the court's ruling on summary judgment that all her claims were time-barred. She argues that her claim under section 1981 is subject to a longer statute of limitations. The freshmen plaintiffs challenge evidentiary rulings and the court's rulings on the merits as to each of their claims.

As we explain, the court properly granted summary adjudication as to all claims under sections 1981 and 1983. Because CSUSM is an "arm of the state," it is not a "person" who may be sued under those statutes. That conclusion disposes of Cooper's appeal. As to the freshmen plaintiffs' claims under title VI and the Unruh Act, we conclude the trial court erroneously sustained certain evidentiary objections and construed the "adverse action" requirement too narrowly. Defendant did not meet its burden to show the lack of a triable issue as to the bulk of these claims.

1. Federal Civil Rights Claims Under Sections 1981 and 1983

Citing Will v. Michigan Dept. of State Police (1989) 491 U.S. 58 , 109 S.Ct. 2304 , 105 L.Ed.2d 45 ( 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." We agree with the result, although the question is more precisely framed as whether

Following Will , courts have consistently concluded that states are not "persons" subject to suit under section 1983. ( Pitts v. County of Kern (1998) 17 Cal.4th 340 , 348, 70 Cal.Rptr.2d 823 , 949 P.2d 920 [because states and state officials are not "persons" under section 1983, they may not be sued under that statute in federal or state court]; McAllister v. Los Angeles Unified School Dist. (2013) 216 Cal.App.4th 1198 , 1207, 157 Cal.Rptr.3d 720 ["a state, an entity acting as an 'arm of the state,' or a state official sued in his official capacity may not be considered a 'person' who may be liable under section 1983"]; Kirchmann v. Lake Elsinore Unified School District (2000) 83 Cal.App.4th 1098 , 1100, 100 Cal.Rptr.2d 289 ( Kirchmann ) [public school district could not be sued under section 1983 ]; cf. Monell v. New York City Dept. of Social Services (1978) 436 U.S. 658 , 690, 98 S.Ct. 2018 , 56 L.Ed.2d 611 [unlike states, municipalities are persons that may be sued under section 1983 ].) This is not because an arm of the state is immune from suit under the Eleventh Amendment or sovereign immunity; such an entity is simply not "as a matter of statutory construction, ... a 'person' as that term is used in section 1983." ( Pierce v. San Mateo County Sheriff's Dept. (2014) 232 Cal.App.4th 995 , 1006, 181 Cal.Rptr.3d 816 .)

Courts have extended Will's reasoning to claims under 42 United States Code section 1981. ( Pittman v. Oregon , Employment Dept. (9th Cir. 2007) 509 F.3d 1065 , 1071-1073.) "[W]hile Eleventh Amendment sovereign immunity does not apply in state court, the practical effect of the holding in Will is that actions against arms of the state under both [ 42 United States Code] § 1983 and § 1981 cannot be brought in either federal or state court, because the cause of action in § 1983 does not reach arms of the state." ( Id. at p. 1072.) Although California courts have yet to consider this issue, we follow Pittman ' s approach.

The Board is indisputably an arm of the state. ( Jackson v. Hayakawa (9th Cir. 1982) 682 F.2d 1344 , 1350 ; Stanley v. Trustees of California State University (9th Cir. 2006) 433 F.3d 1129 , 1133 [California State University "Trustees are an arm of the state that can properly lay claim to sovereign immunity"]; Poschman v. Dumke (1973) 31 Cal.App.3d 932 , 942, 107 Cal.Rptr. 596 ["The trustees of California State Colleges are a state agency created by the Legislature"];

a. Additional background

The Board argued the freshmen plaintiffs could not establish a prima facie case of racial discrimination because (1) they could not show a materially adverse action impacting their ability to play basketball, and (2) they could not demonstrate that similarly situated students who were not members of their protected class were treated differently. It further argued the freshmen plaintiffs could not establish that Coach Jennum intentionally discriminated against them based on race.

The trial court largely agreed. It concluded that Mackey, Hicks, and Smith failed to show an adverse action because they were not suspended or released from

"[T]he weight of authority holds that an appellate court reviews a court's final rulings on evidentiary objections by applying an abuse of discretion standard." ( Carnes , supra , 126 Cal.App.4th at p. 694, 23 Cal.Rptr.3d 915 ; cf. Nazir v. United Airlines , Inc. (2009) 178 Cal.App.4th 243 , 255, fn. 4, 100 Cal.Rptr.3d 296 ( Nazir ) [observing the standard of review question may be unsettled]; Reid v. Google , Inc. (2010) 50 Cal.4th 512 , 535, 113 Cal.Rptr.3d 327 , 235 P.3d 988 ( Reid ) [sidestepping whether de novo review applies for evidentiary rulings made solely on the papers].) The party challenging an evidentiary ruling bears the burden of establishing the court exceeded the bounds of reason. ( DiCola v. White Bros. Performance Products , Inc. (2008) 158 Cal.App.4th 666 , 679, 69 Cal.Rptr.3d 888 .) Nevertheless, evidentiary questions at summary judgment " 'are subject to the overarching principle that the proponent's submissions are scrutinized strictly, while the opponent's are viewed liberally.' " ( Serri , supra , 226 Cal.App.4th at p. 852, 172 Cal.Rptr.3d 732 .)

The Board objected to the entire declarations of plaintiff Sierra Smith and Mr. and Mrs. Williams (Williams's parents)

First, the Board objected to Mackey's statement that she told athletic director Milo during their meeting, "I felt discriminated against by Coach Jennum" and "unfairly being singled out, along with other black players based on their race." As the Board noted, Mackey did not remember at her deposition whether she used the word "discriminating" and may have said Jennum was "singling [them] out." But she later clarified that she communicated to Milo that she thought she was being treated differently because of her race. The Board did not object to Mackey's subsequent statement in her declaration that she felt upset that Milo recapped that meeting to indicate that Mackey did not perceive differential treatment based on race. And Jennum responded to Mackey's meeting with Milo by holding a team meeting where she stated someone had called her a racist. We agree with plaintiffs that "the circumstantial evidence indicates Mackey conveyed her belief that Jennum discriminated against Plaintiffs based on their race" during her meeting with Milo.

The Board cites D ' Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1 , 112 Cal.Rptr. 786 , 520 P.2d 10 ( D ' Amico ) for the proposition that a plaintiff cannot defeat summary judgment by declaratory statements contradicting her deposition testimony. But the D ' Amico rule only applies where there has been a " 'clear and unequivocal admission by the plaintiff.' " ( Id. at p. 21, 112 Cal.Rptr. 786 , 520 P.2d 10 .) "In a nutshell, the rule bars a party opposing summary judgment from filing a declaration that purports to impeach his or her own prior sworn testimony." ( Scalf v. D.B. Log Homes , Inc. (2005) 128 Cal.App.4th 1510 , 1522, 27 Cal.Rptr.3d 826 ( Scalf ).) It does not apply where there is a "reasonable explanation for the discrepancy" or "countenance ignoring other credible evidence that contradicts or explains that party's answers or otherwise demonstrates there are genuine issues of factual dispute." ( Id. at pp. 1524-1525, 27 Cal.Rptr.3d 826 .) The court thus erred in sustaining the Board's evidentiary objection No. 4.

Second, the Board objected to Mackey's statement that she filed a discrimination complaint the day after Jennum's "Am I racist?" team meeting. It argued this contradicted Mackey's deposition testimony that she first filed a complaint on January 30, 2014. But as plaintiffs

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, 93 S.Ct. 1817 , 36 L.Ed.2d 668 ; Guz v. Bechtel National , Inc. (2000) 24 Cal.4th 317 , 354, 100 Cal.Rptr.2d 352 , 8 P.3d 1089 ( 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 WL 2502151 , pp. *1-2, 2007 U.S.Dist. Lexis 64234, p. *4 [Unruh Act].) Although coaches are different from "ordinary employers," the McDonnell Douglas framework strikes the appropriate balance in evaluating race discrimination claims brought by college athletes:

"[I]t is not appropriate to allow college coaches to impose their own racial prejudices on college athletes. The familiar

The trial court overlooked this principle in concluding that Mackey, Smith, and Hicks had not met their prima facie burden

1. Adverse Action

The trial court concluded that nothing short of release from the team could constitute an adverse action for purposes of establishing a prima facie case of race discrimination. As we explain, the court construed the adverse action requirement too narrowly. On our record, the Board did not meet its moving burden to show that the freshmen plaintiffs could not establish a materially adverse action.

A. Defining an "adverse action" in collegiate sports

In the employment discrimination context, an "adverse action" is one that "materially affects the terms, conditions, or privileges of employment" based on the "totality of the circumstances." ( Yanowitz v. L ' Oreal USA , Inc. (2005) 36 Cal.4th 1028 , 1036, 1051, 32 Cal.Rptr.3d 436 , 116 P.3d 1123 ( Yanowitz ).) It goes beyond "so-called 'ultimate employment actions' such as termination or demotion' " to cover "the entire spectrum of employment actions that are reasonably likely to adversely and materially affect an employee's job performance or opportunity for advancement in his or her career." ( Id. at pp. 1053-1054, 32 Cal.Rptr.3d 436 , 116 P.3d 1123 .) "[T]he determination of what type of adverse treatment properly should

B. Trial court's narrow interpretation

The trial court found that experiences such as limited playing time and harsher punishment could not constitute a materially adverse action for purposes of a prima facie case of racial discrimination. Instead of such experiences, the court focused on whether Mackey, Smith, Hicks, and Williams were suspended or released from the team. Of these four, it found that only Williams had arguably suffered an adverse action-Mackey was suspended for academic reasons, Smith resigned, and Hicks remained on the team.

As Yanowitz and Elliott demonstrate, the trial court construed the adverse action requirement too narrowly. Actions short of dismissal from a team could, under the right circumstances, materially affect the terms, conditions, or privileges of a student athlete's participation in college athletics. For example, in Elliott, a White college volleyball player (Elliott) sued her university, claiming her coach (Arnold) engaged in racial discrimination, created a racially hostile environment, and retaliated against her in violation of title VI. ( Elliott , supra , 879 F.Supp.2d at p. 440.) As to the adverse action element, Elliott alleged her coach had singled her out for harsher treatment,

"including forcing the entire team to run only when Elliott made mistakes, excluding Elliott from team text messages, attempting to revoke Elliott's scholarship, refusing to allow Elliott to travel with the team, refusing to play Elliott in virtually every volleyball game, repeatedly denouncing Elliott in front of the team, forcing Elliott to undergo drug testing, removing Elliott's name from the web-site and team roster, and forcing Elliott to play through painful shin splints." ( Id. at p. 445.)

These actions were sufficient to defeat summary judgment on the retaliation claim. "Viewed in the light most favorable to Elliott," the evidence showed coach Arnold went to "considerable lengths" to engage in "openly hostile treatment" once she complained about racial discrimination. ( Id. at p. 449.) As the court reasoned, these facts could support a theory of constructive discharge-i.e., that her coach's treatment surpassed a threshold of intolerable conditions, making her continued participation on the team impossible. ( Id. at pp. 448-449.)

Coaches have broad discretion to decide "who plays, how much they play, and whether they stay on the team from year to year," but they may not make coaching decisions for racially discriminatory reasons. (

Smith and Williams tried but could not pinpoint any reason other than race to explain why only certain players were being singled out. Mackey voiced concern to the athletic director and eventually the Dean of Students. Both she and Williams ultimately filed formal complaints of race discrimination, harassment, and retaliation. Significantly, after investigating those complaints Lisa McLean found sufficient evidence that Jennum had engaged in race-based harassment as to Mackey and Williams, citing the "Am I racist?" team

Williams was actually cut from the team. As the semester progressed, she was getting fewer and fewer opportunities to improve; Jennum complained about even her dribbling on the sidelines. In late December, she enjoyed a rare chance to join practice and was told she had made good progress. Nevertheless, Jennum released her the next day, allegedly for not playing at the collegiate level. The Board does not challenge the trial court's finding that Williams's release, standing alone, reasonably constituted an adverse action. We reach that same conclusion based on Williams's release combined with the totality of her experiences with Jennum as a red shirt on the team. In short, the Board did not meet its moving burden to prove that no reasonable jury could find that Williams suffered a materially adverse action.

The same could reasonably be said of Mackey and Smith, even though neither was released in the same manner as Williams. Mackey fell behind in her coursework and started seeing a therapist to cope with Jennum's treatment. When she fell a credit short, she became academically ineligible to play. She believed she "probably could've passed if [she] didn't go through all this stuff." The university's

Like most claims of race discrimination, the inquiry here involves contested facts from which competing inferences could be drawn. These kinds of claims are rarely suited for summary adjudication. On our record, the Board has not shown that no reasonable jury could find the totality of alleged adverse treatment to be rooted in a discriminatory motive. Certainly, we are not suggesting a triable issue exists "every time a college sports coach treats an athlete of a different race unfairly." ( Elliott , supra , 879 F.Supp.2d at p. 446.) Nor are we concluding that Jennum in fact harbored

The Board contends Jennum could not have intentionally discriminated against the freshmen plaintiffs when she recruited them and helped them secure admission and scholarships. It cites a principle articulated in Bradley , supra , 104 F.3d at pages 270 to 271 : "where the same actor is responsible for both the hiring and the firing of a discrimination plaintiff, and

The Board relies on assistant coach Harris's statement that Williams was released for performance reasons. But this merely shifted the burden back to Williams, who met it by endeavoring to show the stated reason was false. Williams was surprised by "the explanation that [she] was not good enough to play ... because just a day before, both coaches had commended [her] on how well [she] was going and indicated that [she] was making good progress." Mackey recalled the same thing-at practice, Jennum "in front of everyone, said that Kianna was getting much better and ... knows our plays." " '[E]vidence that the employer's claimed reason [for the employee's termination] is false- such as that it conflicts with other evidence, or appears to have been contrived after the fact-will tend to suggest that the employer seeks to conceal the real reason for its actions, and this in turn may support an inference that the real reason was unlawful.' " ( Serri , supra , 226 Cal.App.4th at p. 863, 172 Cal.Rptr.3d 732 ; see

Each of the freshmen plaintiffs allege that Jennum retaliated against them in violation of title VI when they opposed actions they viewed as discriminatory. Specifically, they allege Jennum's retaliation began after Mackey complained to the athletic director. As we explain, the court erred in granting summary adjudication as to the retaliation claims brought by Mackey, Williams, and Smith. Summary adjudication was proper as to the retaliation claim brought by Hicks.

Title VI provides a right of action for a plaintiff alleging retaliation for protected activity taken in response to intentional discrimination. (See Jackson v. Birmingham Board of Education (2005) 544 U.S. 167 , 173, 125 S.Ct. 1497 , 161 L.Ed.2d 361 [retaliation for complaining about sex discrimination is a form of intentional sex discrimination under title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 et seq. ]; Gebser v. Lago Vista Independent School Dist . (1998) 524 U.S. 274 , 286, 118 S.Ct. 1989 , 141 L.Ed.2d 277 [title IX was modeled after and parallels title VI except that it prohibits sex discrimination, not race discrimination, and applies only in education programs, not all programs receiving federal funds]; Cannon v. University of Chicago (1979) 441 U.S. 677 , 696, 99 S.Ct. 1946 , 60 L.Ed.2d 560 ["The drafters of title IX explicitly assumed that it would be interpreted and applied as title VI ...."].)

A plaintiff "who has complained of or opposed conduct that [she] reasonably believes to be discriminatory" may bring a retaliation claim even if a court later determines the underlying conduct was not actually discriminatory. ( Yanowitz , supra , 36 Cal.4th at p. 1043, 32 Cal.Rptr.3d 436 , 116 P.3d 1123 .) "Strong policy considerations support that rule" ( ibid. ); it avoids deterring unsophisticated employees from opposing conduct they reasonably and in good faith believe to be discriminatory.

To show a prima facie case of retaliation at trial , each plaintiff bears the burden to show (1) she engaged in a protected activity; (2) CSUSM subjected her to an adverse action, and (3) a causal link existed between the protected activity and CSUSM's action. ( Yanowitz , supra , 36 Cal.4th at p. 1042, 32 Cal.Rptr.3d 436 , 116 P.3d 1123 .) If the plaintiff establishes a prima facie case, the burden shifts to CSUSM to offer a legitimate, nonretaliatory reason for the adverse action. If CSUSM does so, the presumption of retaliation drops, shifting the burden back to the plaintiff to prove intentional retaliation. But as we have explained, the Board bears the burden as the party seeking summary judgment to establish that plaintiffs cannot establish a prima facie case of retaliation, or that there was a legitimate, nonretaliatory reason for the adverse action. ( Serri , supra , 226 Cal.App.4th at pp. 861-862, 172 Cal.Rptr.3d 732 .)

We reach a different result as to Hicks. During her deposition, she described Jennum treating her and the other African-American players more harshly. But she specifically denied making any complaints about it:

"[Q.] Did you ever tell Coach Jennum that you thought ... she ... gave others more chances than you?

"[A.] Did I ever tell her?

"[Q.] Yeah.

"[A.] No, I didn't.

"[Q.] Did you ever tell anybody?

"[A.] I talked to my dad.

"[Q.] Anybody else?

"[A.] No."

[¶] ... [¶]

"[Q.] Did you ever communicate to anybody about these times when you felt Coach Jennum treated the African-American players differently ... ?

"[A.] Not come back on me, but I just ... speaking back on, like history basically, African-Americans always had to work their way up.

Elsewhere, Hicks testified that she believed Jennum released Williams in retaliation for comments she had made. But when asked whether she felt Jennum "was trying to get rid of [her]," Hicks responded:

"No, because I was more the quiet one so I ... could see everything that happens. I'll have my little incidents that happened with her, but it wasn't -- it wasn't as much as the other players. They -- they have more problems with her."

Based on her deposition testimony, the Board met its moving burden to show that Hicks could not establish a prima facie claim of retaliation under title VI. Given her admission that she never made complaints or faced consequences from her teammates' complaints, no reasonable jury could conclude that she suffered retaliation for engaging in protected activity. Her admission negates any causal link between complaints made by others and Jennum's adverse treatment of Hicks. Accordingly, summary adjudication was proper as to the title VI retaliation claim brought by Hicks.

DISPOSITION

The judgment is reversed. The matter is 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 shall deny summary adjudication as to the remaining claims. Plaintiffs are entitled to their costs on appeal.

WE CONCUR:

HALLER, Acting P. J.

IRION, J.

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

Turning to the second motion, the trial court sustained most of the Board's evidentiary objections and entered summary judgment. The claims under sections 1981 and 1983 and for negligent supervision failed for the same reasons as did the claims brought by Cooper. The discrimination claims under title VI and the Unruh Act could not proceed as to Mackey, Hicks, and Smith, who were not released by Jennum and therefore had not suffered an "adverse action." Although Williams was released, the court concluded she failed to rebut assistant coach Harris's performance-based reason for that adverse action. Turning to the retaliation claim, the court concluded plaintiffs could not show a triable issue absent a complaint voiced by Smith or Hicks, an adverse action taken against Mackey, or a causal link between Williams's complaints and her release from the team.

Plaintiffs appealed the order granting the Board's motions for summary judgment. We construe their premature appeal as taken from the subsequently

To avoid this result, plaintiffs argue CSUSM's receipt of federal funds under title VI waives its sovereign immunity. (See 42 U.S.C. § 2000d-7(a)(1) [no Eleventh Amendment immunity for violations of title VI].) But as the Board points out, plaintiffs "confuse sovereign immunity with whether a statute itself creates a cause of action against a state." "[W]hether an entity is a 'person' subject to suit under section 1983 is a matter of federal law and is not affected by whether the entity has sovereign immunity ..." ( Kirchmann , supra , 83 Cal.App.4th at p. 1105, 100 Cal.Rptr.2d 289 [rejecting argument that by enacting the California Tort Claims Act, school districts could be sued under section 1983 ], italics omitted.) Title VI cannot make the Board liable under 42 United States Code section 1983 if it is not a "person" subject to liability under that statute. (See Kirchmann , at p. 1105, 100 Cal.Rptr.2d 289 ["California cannot, by enacting the California Tort Claims Act, make school districts liable under section 1983 if they are not 'persons' subject to section 1983 liability under federal law"].) Accordingly, the trial court properly granted summary adjudication as to claims for harassment, discrimination, and retaliation under sections 1981 and 1983.

Because Cooper solely challenges summary adjudication as to the section 1981 claim, our conclusion here completely disposes of her appeal. We therefore turn our attention to the appeal by the freshmen plaintiffs, Mackey, Williams, Smith, and Hicks. These plaintiffs do not challenge summary adjudication on their negligent supervision claim; they instead focus on whether summary adjudication was proper as to their claims for race discrimination under title VI and the Unruh Act, and for retaliation under title VI.

2. Freshmen Plaintiffs' Race Discrimination Claims under Title VI and the Unruh Act

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

On appeal, the freshmen plaintiffs challenge selected evidentiary rulings before turning to their primary argument that the court construed the adverse action requirement too narrowly. They contend that reduced playing time, a hostile environment, and harsher treatment can reasonably constitute adverse action under title VI and the Unruh Act. They also challenge whether assistant coach Harris's declaration demonstrated a nondiscriminatory basis for Williams's release. We address each of these arguments in turn.

b. Evidentiary rulings

The freshmen plaintiffs challenge three categories of evidentiary rulings. We limit our review to these specific challenges. (See Carnes v. Superior Court (2005) 126 Cal.App.4th 688 , 694, 23 Cal.Rptr.3d 915 ( Carnes ) [on appeal from summary judgment, plaintiff must identify evidentiary rulings claimed to be incorrect].) As we explain, the court erred in sustaining two objections to Mackey's declaration but otherwise did not err in its evidentiary rulings.

Although a trial court does not "try" the case or weigh the evidence at summary judgment, it does consider the competency of evidence presented.

Plaintiffs suggest the challenged statements in Mackey and Williams's declarations were offered to show the effect on the listener-i.e., how a reasonable person belonging to a protected group would view Jennum's statements. (See People v. Scalzi (1981) 126 Cal.App.3d 901 , 907, 179 Cal.Rptr. 61 .) But to the extent the challenged statements have any relevance, it is for their truth, to show that Jennum was trying to remove Mackey and Williams from the team for different reasons than the Board now claims. The court did not abuse its discretion in sustaining the Board's evidentiary objection Nos. 8, 9, 10, 17, and 18.

c. Overview of title VI and the Unruh Act

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.) There is an implied private right of action to enforce title VI's core prohibition against racial discrimination in federally funded program, to the extent the claims rest on intentional discrimination, not disparate impact. ( Alexander v. Sandoval (2001) 532 U.S. 275 , 280, 121 S.Ct. 1511 , 149 L.Ed.2d 517 .)

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, 31 Cal.Rptr.3d 565 , 115 P.3d 1212 , citing

employment-discrimination framework, designed to account for the competing concerns of employer discretion and equal protection, strikes an appropriate balance. It gives the coach an opportunity to make legitimate personnel decisions without facing liability, while protecting student-athletes from race-based discrimination. In this analysis, it may be appropriate to give coaches somewhat more deference than ordinary employers. But any such leeway comes from the broad range of legitimate, nondiscriminatory reasons a coach may have for deciding who plays, how much they play, and whether they stay on the team from year to year, not any special per-se rule applicable to college coaches." ( Heike v. Guevara (6th Cir. 2013) 519 Fed.Appx. 911 , 918 ( Heike ).)

Under the McDonnell Douglas framework, a plaintiff bears the initial burden to establish a prima facie case of race-based discrimination. "The specific elements of a prima facie case may vary depending on the particular facts," but a plaintiff must generally show that "(1) [she] was a member of a protected class, (2) [she] was qualified for the position [she] sought or was performing competently in the position [she] held, (3) [she] suffered an adverse employment action, such as termination, demotion, or denial of an available job, and (4) some other circumstance suggests discriminatory motive." ( Guz , supra , 24 Cal.4th at p. 355, 100 Cal.Rptr.2d 352 , 8 P.3d 1089 .) That prima facie showing gives rise to a rebuttable presumption of discrimination, shifting the burden on the employer to produce admissible evidence that its action was taken for a legitimate, nondiscriminatory reason. If the employer makes that showing, the plaintiff again bears the burden to show that the reasons given were a pretext for discrimination or offer some other evidence of a discriminatory motive. ( Id. at pp. 355-356, 100 Cal.Rptr.2d 352 , 8 P.3d 1089 .)

"[A] mere offensive utterance or even a pattern of social slights by either the employer or coemployees cannot properly be viewed as materially affecting the terms, conditions, or privileges of employment." ( Yanowitz , supra , 36 Cal.4th at p. 1054, 32 Cal.Rptr.3d 436 , 116 P.3d 1123 , italics added.) "Minor or relatively trivial adverse actions or conduct by employers or fellow employees that, from an objective perspective, are reasonably likely to do no more than anger or upset

2. Discriminatory Motive

The Board argues the freshmen plaintiffs cannot establish a prima facie case absent evidence that similarly situated players outside their protected

At the motion hearing, the Board argued that run-of-the mill coaching decisions should not be subject to judicial oversight. Otherwise, "every brand-new freshman player coming into a collegiate team thinks that they are an amazing player and deserve all the ... playing time, not respecting the fact that there are juniors and seniors on the team that have been there longer." That may be the case where there is no evidence presented suggesting intentional discrimination. But that is not, contrary to the Board's argument before the trial court, "this case."

e. Any nondiscriminatory reasons offered by the Board would not eliminate a triable issue

As the party moving for summary judgment, the Board could either demonstrate that plaintiffs could not prove a prima facie case of race discrimination, or provide legitimate, nondiscriminatory reasons for any adverse action alleged. The Board urges us in the alternative to uphold summary adjudication based on its nondiscriminatory reasons. Assuming such reasons were provided, we conclude the freshmen plaintiffs nevertheless met their burden to show a triable issue on their race discrimination claims. ( Light , supra , 14 Cal.App.5th at pp. 94-95, 221 Cal.Rptr.3d 668 .)

At the outset, the Board focuses solely on the freshmen plaintiffs' membership status on the team. It does not attempt to identify nondiscriminatory reasons for the various actions, conditions and circumstances that arguably made further participation on the team intolerable and thus create, in their totality, a triable issue on the adverse action requirement. (See ante , section d.1.C.)

Moreover, as noted, there remains a triable issue as to whether Jennum's treatment led three of four freshmen plaintiffs to leave. Although Mackey was

In short, the Board did not offer legitimate, nonretaliatory reasons for the adverse actions alleged by the freshmen plaintiffs. Its stated reasons for Mackey's suspension, Smith's resignation, and Williams's release at most raise contested factual issues and do not entitle it to summary adjudication on their race discrimination claims under title VI and the Unruh Act.