Darius Terry vs Regents of the University of California

Case Number

21CV03250

Case Type

Hearing Date / Time

Fri, 04/19/2024 - 10:00

Nature of Proceedings

Motion for Summary Judgment

Tentative Ruling

For the reasons set forth herein, the motion of defendant Regents of the University of California for summary judgment, or alternatively for summary adjudication, is denied in its entirety.

Background:

Plaintiff Darius Terry was hired in January 2016 by defendant Regents of the University of California (University) as an Assistant Coach for Cross County and Track & Field (Distance). (Plaintiff’s Response Separate Statement [PSS], undisputed fact 1.) Track and Field and Cross Country are two separate subsets of the same program. (PSS, undisputed fact 2.)

In 2018, the Director of Track and Field and Cross County was Peter Dolan. (PSS, fact 18 [undisputed on this point].) Dolan oversaw both Cross Country and Track and Field subsets of the program at that time. (PSS, undisputed fact 19.) From February 2018 to June 2018, Dolan was put on administrative leave. (PSS, undisputed fact 20.) In June 2018, the University announced Dolan’s departure as head coach. (PSS, undisputed fact 21.)

In 2018, Terry was told that the Track and Field and Cross Country program was being split, naming Terry as interim head coach of Cross Country and Gary Horn as interim head of Track. (PSS, fact 33 [undisputed on this point].) Terry entered into an agreement with the University on July 1, 2018, for employment in the position of Head Coach. (PSS, fact 34 [undisputed on this point].)

In the summer of 2019, the University conducted a national search for a permanent Director of Cross Country and Track and Field, including publicly posting the position. (PSS, undisputed fact 47.) Terry was selected to interview, along with four other candidates. (PSS, undisputed fact 49.)

In September 2019, Cody Fleming started in the position as permanent Director of Cross Country and Track and Field. (PSS, fact 64 [undisputed on this point].)

Terry remained employed by the University until the University terminated his employment by letter dated July 16, 2021, with Terry’s last day of August 15, 2021. (PSS, facts 75, 102 [undisputed on this point], undisputed fact 103.)

On August 16, 2021, Terry filed his original complaint in this action. On September 16, 2021, Terry filed his first amended complaint. Pursuant to stipulation of the parties and order of the court, Terry filed his operative complaint, the second amended complaint (SAC) on November 5, 2021. The SAC asserts seven causes of action against the University: (1) race discrimination (Gov. Code, § 12940, subd. (a)); (2) retaliation (Gov. Code, § 12940, subd. (f)); (3) failure to prevent discrimination, harassment, and/or retaliation (Gov. Code, § 12940, subd. (k)); (4) harassment (Gov. Code, § 12940, subd. (j)); (5) denial of equal pay for substantially similar work (Lab. Code, § 1197.5); (6) retaliation (Lab. Code, § 1197.5); and (7) failure to timely pay last paycheck (Lab. Code, §§ 203, 204).

On December 6, 2021, the University filed its answer to the SAC, generally denying the allegations thereof and asserting 30 affirmative defenses.

On September 7, 2023, the University filed this motion for summary judgment, or alternatively, for summary adjudication of each of the causes of action of the SAC. In support of the motion, the University concurrently filed its separate statement consisting of 146 separate statement facts, each of which is asserted as applicable to each of the seven requested adjudications.

Terry opposes the motion. In support of his opposition, Terry filed both a response separate statement and a separate statement of additional facts. The 145-page separate statement of additional facts sets forth 604 additional facts. In reply, the University filed a response to the separate statement of additional facts identifying those additional facts as undisputed or disputed.

Analysis:

“A party may move for summary judgment in an action or proceeding if it is contended that the action has no merit or that there is no defense to the action or proceeding.” (Code Civ. Proc., § 437c, subd. (a)(1).)

“The motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. In determining if the papers show that there is no triable issue as to any material fact, the court shall consider all of the evidence set forth in the papers, except the evidence to which objections have been made and sustained by the court, and all inferences reasonably deducible from the evidence, except summary judgment shall not be granted by the court based on inferences reasonably deducible from the evidence if contradicted by other inferences or evidence that raise a triable issue as to any material fact.” (Code Civ. Proc., § 437c, subd. (c).)

“A motion for summary adjudication may be made by itself or as an alternative to a motion for summary judgment and shall proceed in all procedural respects as a motion for summary judgment.” (Code Civ. Proc., § 437c, subd. (f)(2).)

“A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if the party contends that the cause of action has no merit, that there is no affirmative defense to the cause of action, that there is no merit to an affirmative defense as to any cause of action, that there is no merit to a claim for damages, as specified in Section 3294 of the Civil Code, or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs. A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (Code Civ. Proc., § 437c, subd. (f)(1).)

“For purposes of motions for summary judgment and summary adjudication: [¶] … [¶] (2) A defendant … has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to the cause of action. Once the defendant … has met that burden, the burden shifts to the plaintiff … to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. The plaintiff … shall not rely upon the allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action or a defense thereto.” (Code Civ. Proc., § 437c, subd. (p)(2).)

“But other principles guide us as well, including that ‘[w]e accept as true the facts … in the evidence of the party opposing summary judgment and the reasonable inferences that can be drawn from them.’ [Citation.] And we must ‘“view the evidence in the light most favorable to plaintiff[] …’ and “liberally construe plaintiff[’s] evidentiary submissions and strictly scrutinize defendant[’s] own evidence, in order to resolve any evidentiary doubts or ambiguities in plaintiff[’s] favor.”’ [Citation.]” (Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 254.)

Whether or not the University has met it initial burden on summary judgment or on summary adjudication as to any cause of action, Terry has presented evidence sufficient to show triable issues of material fact.

For example, separate statement fact 122 is: “Cody Fleming had no knowledge of Plaintiff having made a complaint with the EODP or the EEOC until months after Plaintiff was terminated.”

In support of separate statement fact 122, the University cites to the declaration of Cody Fleming: “I had no knowledge that Darius had made a complaint to UCSB’s Equal Opportunity and Discrimination Prevention Office (‘EODP’) or to the Equal Employment Opportunity Commission (‘EEOC’) until months after Darius had been terminated.” (Fleming decl., ¶ 9 [Defendant’s Exhibits, exhibit 34].)

It is undisputed that Terry was terminated by letter dated July 16, 2021, with Terry’s last day stated in that letter of August 15, 2021. (PSS, fact 102 & response thereto.)

Terry presents evidence that Fleming was copied with a letter on September 11, 2020, stating that Terry had filed an EEOC complaint in June 2020 (including the complaint number). (Parks decl., ¶ 6 [Plaintiff’s Exhibits, exhibit 11]; Plaintiff’s Exhibits, exhibit 12.) This evidence is sufficient to dispute separate statement fact 122.

“ ‘[T]he separate statement effectively concedes the materiality of whatever facts are included. Thus, if a triable issue is raised as to any of the facts in your separate statement, the motion must be denied!’ ” (Nazir v. United Airlines, Inc., supra, 178 Cal.App.4th at p. 252, quoting Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2009) ¶ 10:95.1, p. 10-35 (rev. # 1, 2009).)

As another example, plaintiff’s additional separate fact 436 is: “Plaintiff never told Fleming that he was planning on carrying on doing his job and not communicating with Fleming.” (Terry decl., ¶ 113 [Plaintiff’s Exhibits, exhibit 1].) The University’s response to additional fact 436 is: “Disputed. Plaintiff communicated this message to Mr. Fleming time and time again. For instance, Plaintiff said in a text message that he may ‘opt out’ of his coaching responsibilities. Defendant’s Facts 83, 85.” Throughout the reply separate statement, the University distinguishes between material and immaterial additional facts by asserting that additional facts are “Not material.” (E.g., compare responses to additional facts 15 & 16.) The response to additional fact 436 is that the fact is disputed, but no assertion is made that it is immaterial, and particularly that the University’s own separate statement facts 83 and 85 demonstrate the dispute.

Other problems exist in overstating separate statement facts and providing citations to evidence that do not support the separate statement facts. For example, separate statement fact 143 is: “The only conduct Sandra Featherson engaged in toward Plaintiff that he considers harassment was her sending him emails every two or three days to sign his contract via DocuSign.” The evidence cited in support of this fact is from the deposition of Darius Terry (pp. 365, l. 12 – 366, l. 8):

“Q.       When you say Miss Featherson was harassing you to sign your contract, what do you mean by that?

“A.       I mean after she had initially sent the contract in August of 2020 and then I responded to her, Fleming, and Nancy Hamill informing them that I would not be signing it, I continued to receive DocuSign requests like every two to three days for months from August until December; and then I know it stopped for a short period of time and then it began again from, I don’t know, sometime prior to March.

            “And I’m not sure if it continued on after March or not, but for months, like every two to three days I was receiving DocuSign requests to sign my contract from Sandra Featherson.

“Q.       Aside from the Docusign request that you received, those were via email; is that right?

“A.       Yes.

“Q.       Was there anything else that Miss Featherson was doing from your perspective that was harassing you to sign your contract?

“A.       Other than sending me emails every two to three days, no.”

The separate statement fact is as to that the only conduct of Featherson that was considered harassing is the sending of emails. The deposition testimony provides support for a narrower point, that the only conduct that was harassing Terry to sign his contract was the sending of emails. No evidence is cited for conduct other than harassment as to the signing of the contract.

As another example along these lines, separate statement fact 136 is: “Prior to arriving at UCSB, Mr. Fleming spent three years coaching at the University of Nevada where he coached 13 NCAA Regional qualifiers, 14 Western Athletic Conference (‘WAC’) medalists, one WAC Champion, three NCAA Outdoor Championship qualifiers, and one NCAA Outdoor All-American.” The evidence cited in support of this fact consists of the declaration of John McCutcheon and the UCSB Biography of Cody Fleming. (Defendant’s Exhibits, exhibits 33, 25.)

McCutcheon declares that a true and correct copy of the UCSB Biography of Cody Fleming is attached as exhibit 25. (McCutcheon decl., ¶ 10). McCutcheon then declares as true the statements set forth in separate statement fact 136. In deposition, however, McCutcheon testifies that he has no personal knowledge of the facts in Fleming’s biography. (McCutcheon depo., at pp. 62, l. 22 - 63, l. 13 [Plaintiff’s Exhibits, exhibit 2].) McCutcheon’s declaration testimony as to Fleming’s biography therefore is inadmissible. The truth of the biography itself is hearsay; the University provides no evidentiary basis for a hearsay exception. Indeed, the declaration of Cody Fleming filed in support of the motion does not mention his own employment or accomplishments prior to working at UCSB, nor does it authenticate or validate the information in the biography. (Fleming decl., ¶¶ 1-9 -Defendant’s Exhibits, exhibit 34].) The evidence cited in support of the separate statement fact is inadmissible and therefore insufficient to support fact 136. The court sustains the objections to this evidence. (See Plaintiff’s Evidentiary Objections, at p. 9.) (Note: Plaintiff’s evidentiary objections fail to comply with California Rules of Court, rule 3.1354(b) (“Each written objection must be numbered consecutively ….”) The court expects the parties to follow all of the applicable California and Local Rules of Court, including formatting.)

As the examples demonstrate, there are triable issues of facts as stated in the moving separate statement. Because all of the 146 separate statement facts are incorporated by reference in each of statement of facts particular to each adjudication (Defendant’s Separate Statement, at pp. 54-57), these triable issues of fact preclude every adjudication sought by this motion. The motion will therefore be denied.

Because of this disposition, it is not necessary for the court to rule on the parties’ other evidentiary objections. (See Code Civ. Proc., § 437c, subd. (q).) It is also unnecessary for the court to rule on plaintiff’s requests for judicial notice. (See Mangini v. R. J. Reynolds Tobacco Co. (1994) 7 Cal.4th 1057, 1063.)

The court also notes that plaintiff’s opposition is formatted in Arial Narrow font with a line spacing that does not correspond to the line numbers on each page. It is questionable as to whether the narrow version of this font complies with California Rules of Court, rule 2.105 (which permits fonts “essentially equivalent to … Arial” without reference to narrower versions of that font). Regardless of whether a rule is violated, the use of this font and line spacing makes reading this document unnecessarily difficult. The apparent purpose was to compress the text in order to fit more words into the page limitation. If the text cannot be presented using a font with characters per pica consistent with ordinary Courier, Times New Roman, or Arial, the party should request leave to file an oversized, but considerably more legible paper.