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Miller v. Board of Regents of University of Minnesota

United States District Court, D. Minnesota

February 1, 2018


          Daniel Mark Siegel, Jalle Dafa, and Jane E. Brunner, SIEGEL & YEE; Sharon L. Van Dyck, Donald Chance Mark, Jr., Andrew T. James, Christopher R. Sall, and Tyler P. Brimmer, FAFINSKI MARK & JOHNSON, P.A., for plaintiffs.

          Timothy Joseph Pramas and William P. Donohue, UNIVERSITY OF MINNESOTA OFFICE OF GENERAL COUNSEL; Jeanette M. Bazis, Katherine M. Swenson, and Jenny Gassman-Pines, GREENE ESPEL PLLP, for defendant.


          Patrick J. Schiltz United States District Judge

         Plaintiffs Shannon Miller, Jen Banford, and Annette Wiles were employed as coaches by defendant University of Minnesota Duluth (“UMD”). Miller coached the women's hockey team, Banford coached the women's softball team (and simultaneously served on Miller's staff as director of hockey operations), and Wiles coached the women's basketball team. All three coaches enjoyed considerable success. Miller, in fact, won five national championships and may be the most accomplished women's hockey coach in the history of college athletics.

         In December 2014, UMD decided not to renew Miller's contract following a number of disappointing seasons. UMD also decided not to renew the contracts of several members of Miller's staff, including Banford. In the wake of Miller's non- renewal, both Banford and Wiles 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.

         Miller, Banford, and Wiles filed this lawsuit against UMD. The three coaches claim that they were non-renewed or constructively discharged on account of their sex (female) and sexual orientation (lesbian) and in retaliation for accusing UMD of violating Title IX of the Education Amendments of 1972 (“Title IX”), 20 U.S.C. § 1681 et seq. The three coaches also claim that, while they were employed by UMD, they experienced a hostile work environment on account of their sex and sexual orientation.[1]Finally, the three coaches assert claims under the Equal Pay Act of 1963 (“EPA”), 29 U.S.C. § 206(d).

         This matter is before the Court on UMD's motion for summary judgment. UMD has also moved for separate trials on any of plaintiffs' claims that survive. Finally, UMD has moved to exclude the testimony of plaintiffs' expert witness. The parties submitted about 250 pages of briefs and thousands of pages of exhibits, and the Court conducted a long hearing on UMD's motions on October 30, 2017.

         For the reasons that follow, the Court grants UMD's summary-judgment motion in part with respect to Miller and in full with respect to Banford and Wiles. All of the claims of Banford and Wiles are dismissed. Likewise, all of the claims of Miller are dismissed, with the exception of her claim that, when UMD decided not to renew her contract, UMD discriminated against her on the basis of sex and retaliated against her for raising Title IX complaints. Those two claims will be tried before a jury in Duluth beginning on March 6, 2018.


         Summary judgment is warranted “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A dispute over a fact is “material” only if its resolution might affect the outcome of the suit under the governing substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). And a dispute over a fact is “genuine” only if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. “The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in [her] favor.” Id. at 255.

         The Court will not attempt to summarize the facts. As noted, the parties' briefs are voluminous, and they describe dozens of emails, phone calls, conversations, meetings, actions, and decisions. The parties have already waited a long time for UMD's motions to be decided, [2] and a detailed recitation of the facts would serve little purpose. The facts are described in the briefs and are largely undisputed. The Court will assume familiarity with those facts and will mention particular facts only as necessary to explain the basis of its rulings.

         A. Sexual-Orientation and State-Law Claims

         As noted, all three plaintiffs are lesbians, and all three contend that they lost their jobs and suffered a hostile work environment on account of their sexual orientation. The plaintiffs assert these claims under both federal and state law-specifically, under Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq., and under the Minnesota Human Rights Act (the “MHRA”), Minn. Stat. §§ 363A.01 et seq.

         Plaintiffs' sexual-orientation claims-and, in particular, their hostile- environment claims-are their strongest. Unfortunately for plaintiffs, however, their federal claims must be dismissed on the merits, and their state claims must be dismissed for lack of jurisdiction.

         Plaintiffs' claims under federal law must be dismissed with prejudice because the Eighth Circuit has held that “Title VII does not prohibit discrimination against homosexuals.” See, e.g., Williamson v. A.G. Edwards & Sons, Inc., 876 F.2d 69, 70 (8th Cir. 1989) (per curiam). Plaintiffs point out that the Seventh Circuit recently became the first of the federal courts of appeals to hold that Title VII prohibits discrimination on the basis of sexual orientation. See Hively v. Ivy Tech Cmty. Coll. of Ind., 853 F.3d 339 (7th Cir. 2017) (en banc). As plaintiffs concede, however, this Court is bound by the decisions of the Eighth Circuit. See Hood v. United States, 342 F.3d 861, 864 (8th Cir. 2003) (“The District Court . . . is bound, as are we, to apply the precedent of this Circuit.”).

         Plaintiffs' claims under state law must also be dismissed. Unlike Title VII, the MHRA explicitly prohibits discrimination on the basis of sexual orientation. Minn. Stat. § 363A.08, subd. 2. But, as plaintiffs also concede, the Eleventh Amendment deprives this Court of jurisdiction over plaintiffs' MHRA claims. See Mem. in Opp'n at 31 (ECF No. 306). The Eleventh Amendment provides that the “Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State . . . .” Although the text of the Eleventh Amendment bars actions against a state only when those actions are brought by “Citizens of another State, ” the Supreme Court long ago held that the Eleventh Amendment also bars actions against a state that are brought by its own citizens. See Hans v. Louisiana, 134 U.S. 1, 15 (1890). “The University of Minnesota, of which UMD is a constituent part . . ., is considered an arm of the state and, therefore, shares the State of Minnesota's Eleventh Amendment immunity.” Cardoso v. Bd. of Regents of the Univ. of Minn., 205 F.Supp.3d 1046, 1049 (D. Minn. 2016) (citing Treleven v. Univ. of Minn., 73 F.3d 816, 818 (8th Cir.1996)).

         Either Congress or the Minnesota Legislature could abrogate the Eleventh Amendment immunity of the State of Minnesota. But “it is quite clear no such abrogation has occurred” with respect to claims under the MHRA. Cardoso, 205 F.Supp.3d at 1049 (citing Cooper v. St. Cloud State Univ., 226 F.3d 964, 969 (8th Cir. 2000), and Phillips v. Minn. State Univ. Mankato, No. 09-CV-1659 (DSD/FLN), 2009 WL 5103233, at *3 (D. Minn. Dec. 17, 2009)). As a result, this Court does not have jurisdiction over plaintiffs' sexual-orientation claims under the MHRA-or, for that matter, over any of plaintiffs' other state-law claims. Those claims must be dismissed without prejudice.

         To be clear: Plaintiffs could have pursued their state-law claims-including their MHRA sexual-orientation claims-in state court. But, for reasons that are not apparent, plaintiffs chose to bring those claims in federal court, despite the fact that plaintiffs knew (or should have known) that a federal court would have no jurisdiction over them. As a result of their own choices, then, plaintiffs cannot recover on their (stronger) sexual-orientation claims, and instead are left to litigate their (weaker) sex discrimination, hostile environment, Title IX, and EPA claims.[3]

         B. Other Federal Claims

         1. Miller

         Miller alleges (1) discrimination based on sex with respect to the non-renewal of her contract in violation Title VII; (2) hostile work environment based on sex in violation of Title VII; (3) retaliation in violation of Title IX; and (4) violation of the EPA.

         a. Sex Discrimination.

         Miller does not have direct evidence of sex discrimination, and thus, to avoid summary judgment, she must establish a prima facie case under McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Specifically, Miller must show (1) that she was a member of a protected class; (2) that she was meeting UMD's legitimate expectations; (3) that she suffered an adverse employment action; and (4) that the adverse employment action occurred under circumstances giving rise to an inference of discrimination. Darke v. Lurie Besikof Lapidus & Co., 550 F.Supp.2d 1032, 1042 (D. Minn. 2008). If Miller makes out a prima facie case, the burden shifts to UMD to provide a legitimate nondiscriminatory explanation for the adverse action. Id. If UMD provides such an explanation, the burden shifts back to Miller to establish that UMD's proffered explanation is pretextual and that discrimination was the real reason for the adverse action. Id.

         Miller has satisfied the “low burden” of establishing a prima facie case. Bunch v. Univ. of Ark. Bd. of Trs., 863 F.3d 1062, 1068 (8th Cir. 2017). First, Miller was a member of a protected class. Second, Miller was meeting UMD's legitimate expectations-and, in fact, had performed her job for years. See Davenport v. Riverview Gardens Sch. Dist., 30 F.3d 940, 944 (8th Cir. 1994). Third, Miller suffered an adverse employment action when her contract was not renewed. As the Second Circuit noted in Leibowitz v. Cornell University, 584 F.3d 487, 501 (2d Cir. 2009), superseded by statute on other grounds, as recognized in Sands v. Rice, 619 Fed.Appx. 31, 32 (2d Cir. 2015), “[a]n employee seeking a renewal of an employment contract . . . suffers an adverse employment action when an employment opportunity is denied and is protected from discrimination in connection with such decisions under Title VII . . . . The mere fact that the employer's decision not to renew is completely discretionary does not mean that it is not an ‘adverse' employment decision.” But see Ewald v. Royal Norwegian Embassy, 2 F.Supp.3d 1101, 1121 (D. Minn. 2014) (concluding without analysis that the non-renewal of a contract was not an adverse employment action). Finally, Miller has proffered facts “that give rise to an inference of sex discrimination.” McGinnis v. Union Pac. R.R., 496 F.3d 868, 874 (8th Cir. 2007). These same facts also provide evidence that UMD's explanation for her firing-the poor performance of the women's hockey team and the poor return on UMD's “salary investment”-is pretextual.

         Specifically, the record contains evidence that would allow a jury to find that: (1) Scott Sandelin, the head coach of the men's hockey team, had his contract renewed despite comparable (or arguably worse) performance. (2) In deciding to renew Sandelin's contract, UMD applied different criteria than it applied in deciding not to renew Miller's contract. (3) The administrators involved in the decision not to renew Miller's contract offered inconsistent explanations for their decision, first claiming that the non-renewal was based solely on financial considerations and only later attempting to justify the non-renewal on the basis of Miller's performance. (4) UMD's financial condition was not as dire as it claimed. (5) UMD did not ask Miller to accept a pay cut in lieu of termination, nor did it pursue leads regarding donors who expressed interest in helping to fund Miller's salary. See Mem. in Opp'n at 19, 36, 40-46.

         Miller has sufficient evidence to try her sex-discrimination claim.

         b. Title IX Retaliation.

         Miller also has sufficient evidence to try her Title IX retaliation claim. UMD does not dispute that Miller engaged in protected conduct by complaining that UMD treated the men's athletics program better than the women's athletics program. UMD also does not dispute that Miller suffered an adverse employment action when her contract was not renewed.[4] Instead, UMD argues only that Miller cannot prove a connection between the protected activity and the adverse action. UMD Mem. (ECF No. 283) at 52-53.

         The Court disagrees. The record indicates that Miller regularly complained about perceived Title IX violations, and that those complaints spanned her tenure. Indeed, UMD conceded at oral argument that Miller's complaints continued until shortly before Athletics Director Josh Berlo opted not to renew her contract. See also Miller Decl. (ECF No. 307) ¶¶ 7, 30-31; Miller's Am. Answers to Def.'s First Set of Interrogs. (ECF No. 131) at 6-7 (noting she had “repeatedly raised the issues of disparate funding for women's teams, ” including “at least five times during the 2013-14 school year”); id. at 12 (discussing July 2014 meeting with Berlo raising concerns with funding and athletics trainers). While UMD correctly notes that, as a general matter, temporal proximity will not suffice to establish retaliation, an adverse action close in time to protected activity “may directly support an inference of retaliation” when viewed “within the context of the overall record.” Wallace v. DTG Operations, Inc., 442 F.3d 1112, 1122 (8th Cir. 2006), abrogated on other grounds by Torgerson v. City of Rochester, 643 F.3d 1031 (8th Cir. 2011) (en banc).

         Looking at the record in its entirety, the Court concludes that, although the evidence supporting Miller's Title IX retaliation claim is thin, Miller has sufficient evidence to avoid summary judgment.

         c. Hostile Work Environment.

         Miller does not, however, have sufficient evidence to avoid summary judgment on her claim that she suffered a hostile work environment on account of her sex. Two things about Miller's claim must be emphasized:

         First, Miller must show that she suffered a hostile environment on account of her sex and not for some other reason, such as that her personality clashed with the personalities of others, or that she and others had strong disagreements over, say, the proper direction of the women's hockey program. Miller has evidence that she suffered hostility on account of her sexual orientation (that is, because she was a person who was sexually attracted to members of the same sex), see Miller Decl. ΒΆΒΆ 14-16, but she has little evidence that she suffered hostility on account of her sex (that is, because she was female). For example, Miller complains that she was excluded from a strategic planning committee created by Berlo in May 2014. Yet it is undisputed that several women were asked to serve on that committee, including Banford. Thus, while Miller's exclusion from the committee may be evidence that Berlo was ...

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