WORK WITH US
Coach’s Bullying Behavior Towards Women’s Soccer Team Could Constitute Sexual Harassment, Even If Harassment Was Not Of A Sexual Nature And Could Not Be Compared To Behavior Towards Men
Neil McGuire, the head coach of UC Berkeley’s women’s soccer team, recruited Renee Thomas to come to UC Berkeley and play in the 2018-2019 season. McGuire knew at the time that Thomas had already committed to play soccer for the University of Colorado, which had offered her an athletic scholarship. McGuire met with Thomas and her mother and assured them that Thomas would be on the UC Berkeley soccer team for four years. Thomas turned down her scholarship to the University of Colorado to accept a non-scholarship spot on UC Berkeley’s soccer team.
Thomas would later allege that, at the recruitment meeting, McGuire misrepresented himself as a kind and encouraging coach. She also claimed that McGuire failed to inform her that factors beyond her performance on the team could impact her continued status as a team member.
Thomas alleges that during the 2018-2019 season, McGuire created a culture of fear and intimidation on the soccer team. McGuire lost his temper at athletes and would single them out and berate them in front of the team. He called them names, cursed at them, and in one instance he belittled a player’s physique in front of the team and called her “weak.” McGuire also berated a player for having what he perceived as a hickey on her neck. McGuire yelled at Thomas in front of the team, kicked her off the field, told her she did not belong in the program, and berated her for being undisciplined.
Players and their parents complained about McGuire’s conduct to Jim Knowlton, the UC Berkeley athletic director, and other administrators. In March 2018, McGuire’s assistant athletic trainer made a complaint that McGuire was physically and psychologically abusing his team. In April 2019, three women’s soccer team players made a complaint to Knowlton about McGuire’s behavior. In December 2019, a player complained to the office for the prevention and harassment of discrimination (OPHD) about McGuire’s hickey comment. The player was offered supportive services, but nothing was done to intervene.
On April 29, 2019, McGuire released Thomas and four other non-scholarship players from the team. In September 2020, Thomas filed a lawsuit against McGuire, Knowlton, and UC Berkeley. She brought claims against McGuire and Knowlton for violation of the Unruh Civil Rights Act and negligence, and against McGuire for breach of fiduciary duty and fraud. Thomas argued that UC Berkeley was liable for the actions of its employees under Government Code Section 815.2.
The trial court dismissed the case. The trial court held that Thomas failed to state causes of action for violation of the Unruh Civil Rights Act or the Civil Code Section 51.9, negligence, or breach of fiduciary duty. The trial court also held that the fraud claim against UC Berkeley was barred by governmental immunity under Government Code Section 818.8, which states that public entities are not liable for an employee’s misrepresentation. The trial court held that Thomas had failed to state a claim against McGuire for fraud and negligent misrepresentation, and that McGuire was entitled to public employee immunity for any misrepresentation under Government Code Section 822.2. Thomas appealed.
The court of appeal analyzed whether Thomas had alleged the type of conduct described in Civil Code Section 51.9 and, if not, whether an amendment to her complaint could cure any deficiencies. The court of appeal explained that Civil Code Section 51.9 is not part of the Unruh Civil Rights Act, it is a separate civil rights statute. It prohibits sexual harassment when there is a business, service, or professional relationship between the plaintiff and defendant. This includes relationships where the defendant is a teacher, physician, therapist, executor, landlord, elected official, lobbyist, or other similar position. Civil Code Section 51.9 applies to professional relationships outside the workplace but was enacted to conform with workplace sexual harassment law, such as Title VII and the Fair Employment and Housing Act (FEHA).
In the employment context, liability for sexual harassment claims occurs when there is quid pro quo harassment, or when the harassment is so pervasive that it creates an abusive work environment. The court of appeal held that Thomas’s case involves the hostile environment form of harassment. To create a hostile environment, the harassing conduct must be pervasive and severe. It does not need to be sexual in nature nor explicitly gendered. The plaintiff only needs to show that gender is a substantial motivating factor and the plaintiff would have been treated differently if they were another gender.
The court of appeal held that Thomas had sufficiently plead a claim for sexual harassment. Thomas described a hostile bullying environment and she alleged that it was based on gender. Proof of discriminatory intent often depends on inferences rather than direct evidence. Therefore, very little evidence of discriminatory intent is necessary to survive summary judgment. The inability to compare McGuire’s behavior towards women with his behavior towards men did not defeat the claim of sexual harassment. It just meant Thomas must use other means to prove discriminatory intent. Further, some of Thomas’s allegations could support an inference that the harassment was based on gender. McGuire berated an athlete for having a hickey, which was a reference to sexual activity, and he called another player weak, which could implicate gender-based stereotypes.
The fact that much of the conduct was direct at other teammates, rather than Thomas, did not undermine her hostile environment claim. The court of appeal noted that Thomas would still need to prove that McGuire’s conduct was based on gender rather than just a gender-neutral function of his coaching style. However, the allegations were sufficient to state a cause of action under Civil Code Section 51.9 and withstand demurrer. Thomas’s mistake in framing her claim as a violation of the Unruh Civil Rights Act could be cured by amendment and the trial court erred in dismissing without allowing her leave to amend.
The court of appeal affirmed the trial court’s dismissal of Thomas’s claims for negligence, breach of fiduciary duty, and fraud. The claims against athletic director Knowlton were dismissed because he was not McGuire’s employer. The negligence claim against UC Berkeley failed because a university is not obligated to protect students from nonphysical harm. The breach of fiduciary duty claim failed because there was no confidential relationship between Thomas and McGuire. Statutory immunity under Government Code, Sections 818.8, and 822.2 defeated the fraud claim. Public entities and employees are statutorily immune from misrepresentation related to financial interests and Thomas’s lost University of Colorado scholarship was a financial interest.
The court of appeal remanded the case to the trial court to allow Thomas’s sexual harassment lawsuit to continue.
Thomas v. Regents of University of California (2023) 97 Cal.App.5th 587.