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At the law offices of Fafinski Mark & Johnson in Eden Prairie, Minn., former University of Minnesota Duluth women's hockey coach Shannon Miller speaks about the discrimination lawsuit she and two other female coaches have filed against the school Monday, Sept. 28, 2015. (Richard Tsong-Taatarii/Star Tribune via AP)  MANDATORY CREDIT; ST. PAUL PIONEER PRESS OUT; MAGS OUT; TWIN CITIES LOCAL TELEVISION OUT
At the law offices of Fafinski Mark & Johnson in Eden Prairie, Minn., former University of Minnesota Duluth women's hockey coach Shannon Miller speaks about the discrimination lawsuit she and two other female coaches have filed against the school Monday, Sept. 28, 2015. (Richard Tsong-Taatarii/Star Tribune via AP) MANDATORY CREDIT; ST. PAUL PIONEER PRESS OUT; MAGS OUT; TWIN CITIES LOCAL TELEVISION OUT

Puck drops in faceoff over UMD hockey firings

Former University of Minnesota Duluth women’s hockey coach Shannon Miller, second from right, former UMD women’s basketball coach Annette Wiles, second from left, and former UMD women’s softball coach Jen Banford, center, attend a news conference Sept. 28, 2015, about the discrimination lawsuit they filed against the school. Lawyers Donald Mark Jr., right, and Dan Siegel, left, look on. (AP photo: Star Tribune)

Former University of Minnesota Duluth women’s hockey coach Shannon Miller, second from right, former UMD women’s basketball coach Annette Wiles, second from left, and former UMD women’s softball coach Jen Banford, center, attend a news conference Sept. 28, 2015, about the discrimination lawsuit they filed against the school. Lawyers Donald Mark Jr., right, and Dan Siegel, left, look on. (AP photo: Star Tribune)

By most accounts, Shannon Miller was a strong women’s hockey coach at the University of Minnesota Duluth, but her legal claims, or some of them, recently appeared to be on thin ice in a Monday hearing.

However, the case is set for pretrial on March 5 and trial on March 6 in Duluth. The case recently was reassigned to Judge Patrick Schiltz from Judge Richard Kyle. What claims will survive Monday’s summary judgment hearing is unknown.

Miller and two other UMD coaches, Jen Banford and Annette Wiles, have sued UMD for sex discrimination and other claims relating to the firing of coaches in 2014, in has been characterized as a purge.

Although the team had won five NCAA championships under Miller, the women, along with Miller’s two assistant coaches, lost their jobs after the hockey team had had two of the worst seasons in the team’s history, 2012-13 and 2013-14. At the time Miller’s contract was not renewed, she was the highest paid coach in NCAA women’s hockey, UMD was facing a $6 million budget deficit and the school had a new athletic director, Josh Berlo.

Schiltz heard UMD’s motions for summary judgment on Monday, Oct. 30. Their claims are for sex discrimination, hostile working environment discrimination, retaliation and equal pay — the former three arising under Title VII and Title IX.

And that is where the ice starts cracking — plaintiffs, all three self-identified as lesbians, have not brought claims for discrimination on the basis of sexual orientation. Such a claim isn’t recognized in the 8th U.S. Circuit Court of Appeals.  (The 7th Circuit recently recognized such a cause of action in Hively v. Ivy Tech Community College of Indiana.)

That’s a situation which caused Schiltz to ask, several times, why the plaintiffs are in federal court, which won’t recognize sexual orientation discrimination, instead of state court, which will.

“We believe that discrimination based on sex can incorporate discrimination based on GLBT factors,” said plaintiffs’ attorney Daniel Siegel of Oakland, California.

“You can make that argument to the 8th Circuit,” Schiltz responded.  “All you can do is preserve your argument and hope the 8th Circuit changes its mind.”

Schiltz stressed that he can’t do anything on sexual orientation claims.

“We’re prepared to meet that eventuality,” Siegel replied, apparently signaling that the plaintiffs are playing a long game.

But Schiltz said Miller’s brief sounds like it’s raising a claim of discrimination based on sexual orientation. “Your brief tells a story of a successful coach and a new athletic director in 2013 [who shows] evidence of hostility toward gays, and a purge of lesbian coaches. That sounds like sexual orientation claims, not gender.”

Schiltz noted that in bringing a sex discrimination claim Miller compared herself to men’s hockey coach Scott Sandelin, who may have had more job responsibilities and more assistance than Miller. Schiltz questioned the comparison of the two coaches.  “I cannot say one coach is better than the other. These are not assembly line workers,” he said. In any event, who is the better coach is a jury issue, he said. “It’s not going to be me who makes that decision.”

Schiltz also warned Siegel about spreading his claims too thinly, noting that he is bringing a claim for discrimination on the basis of national origin because Miller is Canadian. “I wouldn’t lead with that,” the Duluth native told Siegel.  By the end of the argument, it sounded like that claim was gone.

Miller’s case also relies on shifting reasons for her dismissal, budget concerns vs. her performance. The reason “gradually morphs into non-financial issues,” Siegel said.

Schiltz moved on to other claims, saying Miller may have a triable argument on the non-renewal of her contract but he couldn’t see hostile environment discrimination or retaliation in the record. “This falls far below what the 8th Circuit says is severe or pervasive conduct,” he said.

Siegel said that the facts had to be viewed from Miller’s perspective because she felt excluded and not treated well by Berlo. “I understand it’s a steep hill to climb in terms of the 8th Circuit law but from her perspective it was a hostile environment,” Siegel said.

Schiltz had the same reaction to Miller’s retaliation claim. She claims she was retaliated against for advocating for equal treatment for women’s hockey, Schiltz said, but she had been doing that for years.

“We go back to the change in administration,” Siegel said. “We think [Miller’s] complaints fit into a pattern. They are objectively valid and sincerely felt complaints.”

Timothy Pramas, senior assistant associate counsel for the University of Minnesota, said there is no 8th Circuit law that says non-renewal of a contract is viewed legally as a firing, and that Miller had no legal expectation that the contract would be renewed. Schiltz pushed back. “I believe the jury could find she’s the better coach and got fired — that’s exactly McDonnell Douglas.”  Schiltz referred to the McDonnell Douglas burden-shifting analysis of Title VII claims, where the plaintiff makes a prima facie case, the defendant articulates a nondiscriminatory reason for its employment action and the plaintiff then has the burden to show pretext.

Pramas said there was no evidence Berlo was concerned about Miller’s complaints and also pointed out that the federal court is not a super-personnel agency. If the decision to fire Miller was a bad one, he said, “It’s not illegal to be wrong.”

If Miller’s equal pay claims rely on a comparison to the salary of the men’s hockey coach, and throughout division one of the NCAA the men’s coaches get paid more, is it possible to bring a claim as a woman’s hockey coach, Schiltz wondered. There may be no comparator. Does that mean it’s not possible for the university to violate the EPA?

The university didn’t violate the EPA in this case, Pramas replied.

Hostile environment

The other plaintiffs in the case are Jen Banford and Annette Wiles. Banford is the former head softball coach and director of women’s hockey operations at UMD. Wiles is the former women’s basketball coach. Banford was let go as director of hockey operations when Miller was non-renewed, as were Miller’s assistant coaches. The university maintains it intended to retain her as softball coach and ultimately made her a formal offer which she declined.

Schiltz had the same reservations about Banford and Wiles as he did about Miller.  “What is the evidence it was based on sex?” he asked.

“She was part of a group of women getting eliminated,” replied attorney Sharon Van Dyck. “I know it’s a stated custom and practice to get rid of assistant coaches but that doesn’t make it legal.” Banford had an administrative, not a coaching, position in hockey, she argued.

Van Dyck said Banford would not continue with claims of constructive discharge or national origin discrimination but did claim a hostile environment, arguing that “the whole Shannon Miller episode was gender-based and that was the environment at the time. You can’t separate these women like they were test tubes.”

But Schiltz said he was on the fence about whether Banford was subject to sex-based harassment that was severe and pervasive.  “The university seems to specialize in tumultuous work places and the athletic department is particularly good at it,” he said.

The record shows nothing more than “cleaning house” for the new hockey coach, said attorney Jeannette Bazis for the university. Schiltz reminded her that Banford wasn’t a coach but Bazis replied that she was under Miller’s daily oversight.

“I’m struggling with whether there’s enough here [to establish a hostile environment],” Schiltz said.

Wiles resigned in June 2014, and is raising a claim of constructive discharge.  Schiltz again said that her concerns appeared to arise after she spoke at a Coming Out Day event, which raises an issue of sexual orientation, not sex.

Van Dyck replied that Wiles’ argument is that the athletic director is homophobic. “The story has a sexual orientation component and a sex claim,” Van Dyck said. “They are part and parcel.” She said that Wiles received adverse reviews from students that were used against her inappropriately and to justify a smaller salary increase. Van Dyck also argued that Wiles frequently raised Title IX complaints.

But Schiltz replied that the 8th Circuit would disagree that complaints based on sex encompass sexual orientation and that he was struggling to find the sex-discrimination component to the case.  Wiles has raised other complaints about her working environment in connection with her constructive discharge claim but Schiltz remained skeptical. He also pointed out that she appeared to make more than the men’s basketball coach.

Arguing for the university, Katherine Swenson said that the evidence of constructive discharge related to sex is weak. She noted that Wiles did not receive a non-renewal notice. “A reasonable employee would not have quit before the [performance] reviews and without asking about non-renewal,” she said.

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