## 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 t he 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 excl uded 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 Lincol n 1 Un iversity (University) had discriminatorily canceled his enrollment. We reverse th e 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 & contenti on. Early in the proceedings, Mr. Fuller put defendants on notice that Title VI was the ba sis for his claim, when he referred in a pro se pleading to Title VI and made it clear in his deposition that he w as proceeding under Title VI and not Title VII (which he noted pertains to employment discrimination). An d consistent with a Title VI theory, Mr. Fuller & s summary judgment response referred to 42 U.S.C. § 2000d-7, the statut e
a b rogating sovereign immunity in Title VI actions. Although Mr. Fuller did not allege that the University received federal funding--an element of a Titl e 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 federa l 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 t hat they were prejudiced by any mistaken bel ief 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 threatene d 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 c laim. 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 jur y trial, the district court first found that the action was essentially against th e Universit y, and that defendants & partial summary judgment motion based on Elevent h Amendment immunity should therefore be gra nted as to Mr. Fuller & s claim for damages. The court then asked Mr. Fuller & s counsel to present to th e court (without a jury present) any evidence supporting a findingof discrimination or an award of attorney & s fees. Mr. Fuller then provided testimony describing his removal from the University & s rolls fo r allegedly fail ing to pay certain fees, and Mr. Fuller named three white students who he cont ended had not paid similar fees but had been permitted to continue in school. I n response to questioning by the court, Mr. Fuller testified that the c ourt had “stricken” the relief th at he wanted, and that he did not wish to return to the University. Havin g concluded that reinstatement was the only relief available to Mr. Fuller, the court granted def endants & “directed verdict” motion, apparently prior to Mr. Fuller completing hi s evidence. Mr. Fuller moved for a new trial, arguing that he was entitled to see k damages, and that he had been denied due process and a fair and impartial trial.

Th e court later entered a written order confirming its grant of partial summary ju dgment, sua sponte granting summary judgment “in favor of the defendants on al l Co unts,” 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 T itle VI. We also construe the court & s order as including a determination that money dam ages are generally unavailable under Title VI. The court therefore concluded th at 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 es tablished a prima facie case of race discrimination, but that defendants ha d provided a legitimate non-discriminatory reason for not permit ting Mr. Fuller to continue to a ttend the University--failure to timely pay his activity fee--and that Mr. Fuller ha d failed to show the proffered reason was pretextual.
Contrary to the distri ct 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 Titl e VI damages claim was not barred by the Eleventh Amendment. We agree with the district court that Mr. Fuller & s claims against th e Board of Curators, and individual board members and the University President i n their official capaciti es, 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 th e University was entitled to invoke the State of Missouri & s Eleventh Amendment immunity, cf. Trele ven v. University of Minn. , 73 F.3d 816, 818-19 (8th Cir.1996) (University of Min nesotaas State instrumentality was entitled to invoke Minnesota's Eleventh Amendm ent

immunity). We nevertheless agree with Mr. Fuller that by enactin g 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 gr anting defendants summary ju dgment based upon insufficient evidence of pretext. In analyzing Mr

. Fuller & s claim of intentional disc rimination, the district court applied the burden-shifting analy sis established in McDonnell Douglas Corp. v. Green , 411 U.S. 792, 802-0 4 (1973), a Titl e VII case. See Quarles v. Oxford Mun. Separate Sch. Dist. , 868 F.2 d 750, 7 54 n.3 (5th Cir. 1989) (indicating McDonnell Douglas analysis would b e applicable to Title VI claim); Hankins v. Temple Univ. , 829 F.2d 437, 438, 440-43-5-

(3d Cir.1987) (applying same analysi s to Title VII and Title VI claims). We agree with the district court that Mr. Fuller presented sufficien t evidence in support of a prima facie case under the burden-shifting analysis. Unlike the district court, however, we conclude that Mr. Full er created a material question of fact as to pretext by identifying whit e students who he testified were permitted to continue to attend classes after failing to pay their fees, and we further note that Mr. Ful ler was apparently precluded from presenting all of his pr oof supporting his Title VI claim. See Fed. R. Civ. P. 56(c) (motion fo r summary judg ment granted upon showing that there is no genuine issue as to an y material f act 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 summar y judgmentp roper only if party against whom judgment will be entered had sufficien t 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).

Fin ally, we deny Mr. Fuller & s “Motion for Consideration and for Judgment” a s well as his motion to quash defendants & brief.

The judgment of the district court is reversed, and the case is remanded fo r proceedings consistent with this opinion.
A true copy.

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