United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 98-1237

___________

Gary Fuller, *

 *

Appellant, *

 *

v. *

 * Appeal from the United States

Wendell Rayburn; George Brooks; * District Court for the

Stephana Landwehr; Claude Rogers; * Western District of Missouri. 

Robert Taylor; Yvonne Wilson; *

Donald Wyss; Lincoln University *

Board of Curators; Robert Webber; *

Ruth McGowan, *

 *

Appellees. *

___________

 Submitted: October 28, 1998

 Filed: November 17, 1998

___________

Before McMILLIAN, RICHARD S. ARNOLD, and MORRIS SHEPPARD ARNOLD,

Circuit Judges. 

___________

MORRIS SHEPPARD ARNOLD, Circuit Judge.

Gary Fuller, an African-American, appeals from the district court&s order granting

defendants& summary judgment motion, in his action under Title VI of the Civil
“No person in the United States shall, on the ground of race, color, or national 1

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.”

-2-

Rights Act of 1964, 42 U.S.C. § 2000d et seq., in which he alleged that Lincoln

1

University (University) had discriminatorily canceled his enrollment. We reverse the

judgment of the district court and remand for further proceedings. 

Initially, we consider defendants& contention that Mr. Fuller should be precluded

from relying on Title VI because in an amended complaint his counsel had cited to Title

VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. We reject defendants&

contention. Early in the proceedings, Mr. Fuller put defendants on notice that Title VI

was the basis for his claim, when he referred in a pro se pleading to Title VI and made

it clear in his deposition that he was proceeding under Title VI and not Title VII (which

he noted pertains to employment discrimination). And consistent with a Title VI theory,

Mr. Fuller&s summary judgment response referred to 42 U.S.C. § 2000d-7, the statute

abrogating sovereign immunity in Title VI actions. Although Mr. Fuller did not allege

that the University received federal funding--an element of a Title VI action, see Jackson

v. Conway, 476 F. Supp. 896, 903 (E.D. Mo. 1979), aff&d, 620 F.2d 680 (8th Cir. 1980)-

-defendants offered evidence that the University received federal funding, and Mr. Fuller

referred to this evidence in his summary judgment response. Finally, the district court

specifically found that Mr. Fuller’s claim was brought pursuant to Title VI and decided

the claim on that basis, and defendants have not shown that they were prejudiced by any

mistaken belief that this was a Title VII action. See Oglala Sioux Tribe of Indians v.

Andrus, 603 F.2d 707, 714 (8th Cir. 1979) (federal rules evince belief that party with

valid claim should recover, regardless of counsel&s failure to perceive true basis of claim

at pleading stage, as long as opposing party is not prejudiced).
Mr. Fuller had alleged in a second count that a University official threatened

2

him, and security personnel pursued him, in violation of the Fourteenth Amendment.

He does not refer to these facts in his brief on appeal, and we therefore do not consider

this claim. See Jasperson v. Purolator Courier Corp., 765 F.2d 736, 740-41 (8th Cir.

1985).

-3-

We now address Mr. Fuller&s argument on appeal that the district court erred in

disposing of his Title VI action. When the parties appeared on the date scheduled for

a jury trial, the district court first found that the action was essentially against the

University, and that defendants& partial summary judgment motion based on Eleventh

Amendment immunity should therefore be granted as to Mr. Fuller&s claim for damages.

The court then asked Mr. Fuller&s counsel to present to the court (without a jury present)

any evidence supporting a finding of discrimination or an award of attorney&s fees. Mr.

Fuller then provided testimony describing his removal from the University&s rolls for

allegedly failing to pay certain fees, and Mr. Fuller named three white students who he

contended had not paid similar fees but had been permitted to continue in school. In

response to questioning by the court, Mr. Fuller testified that the court had “stricken” the

relief that he wanted, and that he did not wish to return to the University. Having

concluded that reinstatement was the only relief available to Mr. Fuller, the court granted

defendants& “directed verdict” motion, apparently prior to Mr. Fuller completing his

evidence. Mr. Fuller moved for a new trial, arguing that he was entitled to seek

damages, and that he had been denied due process and a fair and impartial trial. 

The court later entered a written order confirming its grant of partial summary

judgment, sua sponte granting summary judgment “in favor of the defendants on all

Counts,” and denying the new trial motion. As relevant here, the court reiterated that 2

the Eleventh Amendment barred Mr. Fuller&s claim for damages under Title VI. We also

construe the court&s order as including a determination that money damages are generally

unavailable under Title VI. The court therefore concluded that it was “without a remedy

to order” once Mr. Fuller indicated he was not interested in reinstatement. The court

nevertheless addressed the merits, concluding that Mr. Fuller
-4-

had established a prima facie case of race discrimination, but that defendants had

provided a legitimate non-discriminatory reason for not permitting Mr. Fuller to continue

to attend the University--failure to timely pay his activity fee--and that Mr. Fuller had

failed to show the proffered reason was pretextual. 

Contrary to the district court&s view, we conclude that Title VI generally permits

recovery of damages for intentional discrimination. See Lane v. Pena, 518 U.S. 187, 191

(1996) (“Title VI provides for monetary damages awards”); Franklin v. Gwinnett County

Pub. Schs, 503 U.S. 60, 70 (1992) (“clear majority” of Court has expressed view that

damages are available for intentional violation of Title VI). 

We also conclude that Mr. Fuller&s Title VI damages claim was not barred by the

Eleventh Amendment. We agree with the district court that Mr. Fuller&s claims against

the Board of Curators, and individual board members and the University President in

their official capacities, were essentially claims against the University, see Kentucky v.

Graham, 473 U.S. 159, 165-66 (1985); and Mr. Fuller does not contest here that the

University was entitled to invoke the State of Missouri&s Eleventh Amendment immunity,

cf. Treleven v. University of Minn., 73 F.3d 816, 818-19 (8th Cir.1996) (University of

Minnesota as State instrumentality was entitled to invoke Minnesota's Eleventh

Amendment immunity). We nevertheless agree with Mr. Fuller that by enacting

section 2000d-7, “Congress abrogated the States& Eleventh Amendment immunity under

. . . Title VI.” See Franklin, 503 U.S. at 72.

We conclude further that the district court erred by sua sponte granting defendants

summary judgment based upon insufficient evidence of pretext. In analyzing Mr.

Fuller&s claim of intentional discrimination, the district court applied the burden-shifting

analysis established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04

(1973), a Title VII case. See Quarles v. Oxford Mun. Separate Sch. Dist., 868 F.2d

750, 754 n.3 (5th Cir. 1989) (indicating McDonnell Douglas analysis would be

applicable to Title VI claim); Hankins v. Temple Univ., 829 F.2d 437, 438, 440-43
-5-

(3d Cir.1987) (applying same analysis to Title VII and Title VI claims). We agree with

the district court that Mr. Fuller presented sufficient evidence in support of a prima facie

case under the burden-shifting analysis. Unlike the district court, however, we conclude

that Mr. Fuller created a material question of fact as to pretext by identifying white

students who he testified were permitted to continue to attend classes after failing to pay

their fees, and we further note that Mr. Fuller was apparently precluded from presenting

all of his proof supporting his Title VI claim. See Fed. R. Civ. P. 56(c) (motion for

summary judgment granted upon showing that there is no genuine issue as to any

material fact and moving party is entitled to judgment as matter of law); Madewell v.

Downs, 68 F.3d 1030, 1036, 1048 (8th Cir. 1995) (sua sponte grant of summary

judgment proper only if party against whom judgment will be entered had sufficient

notice and adequate opportunity to show why summary judgment should not be granted);

cf. McDonnell Douglas, 411 U.S. at 794, 804 (1973) (in African-American&s

discriminatory discharge claim under Title VII, it was “[e]specially relevant” to pretext

inquiry whether white employees who engaged in same conduct were also terminated).

Finally, we deny Mr. Fuller&s “Motion for Consideration and for Judgment” as

well as his motion to quash defendants& brief.

The judgment of the district court is reversed, and the case is remanded for

proceedings consistent with this opinion.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.