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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 file 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 file photo: Star Tribune)

Duluth hockey coach face-off begins

More than three years after she was let go, former University of Minnesota Duluth women’s hockey coach Shannon Miller is having her day in court, but other female former coaches will have to wait.

A federal jury in Duluth will consider Miller’s claims of sex discrimination and retaliation by the university for her complaints about Title IX violations. Pretrial was scheduled for r Monday, March 5, and trial on March 6.

UMD notified Miller in December 2014 that it would not renew her contract after 16 seasons, including five national championships. A university statement at the time cited financial reasons for its decision. UMD had a $6 million budget deficit and Miller, who was being paid $207,000, was the highest-paid coach in NCAA women’s hockey.

In January 2015, UMD Chancellor Lendley Black said money was not the only reason, but declined to elaborate. By mid-2015, former UMD coaches Jen Banford and Annette Wiles had quit their jobs —Banford by rejecting UMD’s offer to renew her contract as women’s softball coach, and Wiles by resigning as UMD was about to renew her contract as women’s basketball coach. Banford was also director of hockey operations under Miller.

Miller, Banford and Wiles filed suit under in U.S. District Court in Duluth under federal and state law against the University of Minnesota Board of Regents in September 2015, alleging they were treated unfairly due to their sex and sexual orientation, that they endured a hostile work environment and were not afforded equal pay for equal work. The women are self-identified lesbians.

U.S. District Court Judge Patrick Schiltz dismissed all the claims based on state law for lack of jurisdiction. He also dismissed what he considered the women’s strongest claims, those of discrimination on the basis of sexual orientation and of a hostile work environment. The 8th U.S. Circuit Court of Appeals has held that Title VII, which prohibits discrimination on the basis of sex, does not prohibit it on the basis of sexual orientation, Schiltz wrote in his Feb. 1 order.

However, the 7th Circuit and more recently, the 2nd Circuit, have recognized Title VII causes of action on the basis of sexual orientation, the 7th in Hively v. Ivy Tech Community College of Indiana, and the 2nd in Zarda v. Altitude Express. That gives plaintiffs’ attorney Dan Siegel hope for a possible appeal to the 8th Circuit.

“I believe that the trend is in our favor on this issue,” said Siegel, of Oakland, California firm Siegel, Yee & Brunner. Siegel said he wants to consult with other attorneys familiar with the 8th Circuit to determine whether such an appeal might be fruitful.

“I don’t know that the circuits influence each other, but if three circuits in the country come to the same conclusion, that’s a trend,” added plaintiffs’ attorney Donald Mark Jr. of Fafinski Mark & Johnson, Eden Prairie. “Our position is that there’s more case law in our favor now.”

The university’s attorneys declined to comment until after the trial’s conclusion, but the university issued a statement to the media in the form of a Q&A, citing its reasons for not offering Miller a new contract in 2015.

“These included, but were not limited to, what UMD felt was best for the student athletes, an assessment that new direction and leadership was needed for the women’s hockey team based upon recent team performance and a financial analysis of Miller’s compensation and competitive performance for the previous four full seasons and the season then in progress,” the statement reads. “UMD’s initial public comments were limited out of respect for Ms. Miller’s past service to UMD and because UMD generally prefers not to publicly discuss details of personnel decisions.”

Schiltz also dismissed Miller’s claim that the university created a hostile work environment based on sex, and said she did not meet the “high threshold” that the 8th Circuit requires for it to consider a hostile work environment claim. He tossed Miller’s Equal Pay Act claim as well, saying that UMD pays its men’s and women’s hockey coaches based on market value. Men’s hockey coaches in general are paid more than women’s hockey coaches, and men’s hockey brings more money into the university, Schiltz wrote.

The women will pursue the claims they made under the Minnesota Human Rights Act, which prohibits discrimination on the basis of sexual orientation, in state court, according to their attorneys.

The university will challenge the former coaches in state court as well, according to senior associate general counsel Tim Pramas. “These plaintiffs do not have a legally viable state court option,” Pramas said in the university’s statement.

Siegel said he hopes that prospective federal jurors will be questioned extensively, given the publicity about the case in Duluth. Although attorneys are allowed to strike some jurors, 8th Circuit judges typically ask all the questions and do so in the space of a few hours, according to Mark.

Schiltz has said he wants the trial to wrap up in two weeks, and will allow each side 20 hours to present its case. That concerns the plaintiffs’ attorneys.

“We don’t think it’s nearly long enough to cover all the issues,” Mark said. “We have so many fact witnesses, some of them still employed by UMD, and lots of questions to ask about the behavior and the ways they treated Shannon.”

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