United States District Court, D. Minnesota
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
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.
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.
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.Finally, the three coaches
assert claims under the Equal Pay Act of 1963
(“EPA”), 29 U.S.C. § 206(d).
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.
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,
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.
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,  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
Sexual-Orientation and State-Law Claims
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.
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.
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.”).
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)).
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.
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
Other Federal Claims
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.
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.
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.
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,
has sufficient evidence to try her sex-discrimination claim.
Title IX Retaliation.
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. 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.
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).
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.
Hostile Work Environment.
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:
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. ¶¶ 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 ...