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Miller v. Board of Regents of University of Minnesota

United States District Court, D. Minnesota

September 6, 2019


          Sharon L. Van Dyck, VAN DYCK LAW FIRM, PLLC; Donald Chance Mark, Jr., FAFINSKI MARK & JOHNSON; Dan Siegel and Jane Brunner, SIEGEL, YEE, BRUNNER & MEHTA, for plaintiff.

          Jeanette M. Bazis and Katherine M. Swenson, GREENE ESPEL PLLP; Douglas R. Peterson and Timothy J. Pramas, UNIVERSITY OF MINNESOTA, for defendant.

          Patrick J. Schiltz United States District Judge.

         In 1998, plaintiff Shannon Miller was hired as the head coach of the women's hockey team at defendant University of Minnesota Duluth ("UMD"). After several extensions, Miller's contract was set to expire on June 30, 2015. Throughout the summer and fall of 2014, UMD rebuffed Miller's attempts to negotiate a new contract and then, on December 9, 2014, UMD abruptly informed Miller that it would not be renewing her contract.

         Miller, along with former UMD coaches Jen Banford and Annette Wiles, brought this lawsuit against UMD, asserting claims of sex discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and retaliation under Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 et seq. (along with several other claims). The Court granted HMD's motion for summary judgment on all of Banford's and Wiles's claims and on all of Miller's claims save her Title VII sex-discrimination claim and her Title IX retaliation claim, which were tried before a jury in March 2018.

         The jury found that, by refusing to offer Miller a new employment contract, UMD had discriminated and retaliated against her. The jury awarded Miller $744, 832 in back pay and benefits and $3 million in other past damages. ECF No. 569. The Court later awarded Miller front pay and benefits in the amount of $461, 278 and entered judgment. ECF Nos. 615, 616.

         This matter is before the Court on the parties' post-judgment motions. UMD moves for judgment as a matter of law, a new trial, or remittitur. Miller moves for an award of attorney's fees and expenses and to amend the judgment to add pre- and post-judgment interest. For the reasons that follow, UMD's motion is denied except that the Court will conditionally grant a new trial on the amount of past non-economic damages and offer Miller the option of remitting the award to $750, 000. Miller's motion for pre-and post-judgment interest is granted in part and denied in part, and Miller's motion for attorney's fees and expenses is granted.

         A. Judgment as a Matter of Law

         UMD moves for judgment as a matter of law, arguing that (1) UMD's decision not to renew Miller's contract does not constitute an adverse employment action; and (2) there is insufficient evidence to support the verdict.

         Judgment as a matter of law is warranted when a party has been fully heard on an issue and "the court finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue . . . ." Fed.R.Civ.P. 50(a)(1). In considering a motion for judgment as a matter of law, the court must view the facts in the light most favorable to the nonmoving party and grant the nonmoving party the benefit of all reasonable inferences. See Canny v. Dr. Pepper I Seven-Up Bottling Grp., 439 F.3d 894, 899-900 (8th Cir. 2006). The court should not grant the motion unless "all of the evidence points one way and is susceptible of no reasonable inference sustaining the position of the nonmoving party." Howard v. Mo. Bone & Joint Ctr., 615 F.3d 991, 995 (8th Cir. 2010) (citation and quotation marks omitted).

         With respect to UMD's argument that failing to renew Miller's contract was not an adverse employment action: The Court has already rejected this argument, which UMD made when moving for summary judgment. See ECF No. 501 at 8-9. The Court adheres to its view that UMD's decision not to renew Miller's contract was an adverse employment action.

         With respect to HMD's argument regarding the sufficiency of the evidence: UMD argues that "overwhelming evidence" showed that athletic director Josh Berlo and UMD chancellor Lendley Black decided not to renew Miller's contract because they were dissatisfied with her recent performance, particularly in light of her high salary. This was indeed HMD's story at trial, and a reasonable jury could have credited it. But a reasonable jury could also have found that UMD's story was pretextual, and that the real motivation for UMD's decision was discrimination and retaliation.

         The evidence at trial left no doubt that Miller was a world-class hockey coach and that UMD's decision not to renew her contract shocked many people familiar with the world of Division I women's hockey. Of course, the mere fact that others were surprised by UMD's decision does not mean that UMD acted unlawfully. But it provides context for other evidence in the case-evidence that, taken together, provided a sufficient basis for the jury's findings of discrimination and retaliation.

         This evidence included UMD's markedly disparate treatment of Miller and Scott Sandelin, the coach of the men's hockey team. Miller's and Sandelin's careers at UMD largely overlapped, and there is no dispute that, as of the date that UMD decided not to renew Miller's contract, Miller's overall coaching record at UMD was much stronger than Sandelin's. During Miller's career at UMD, the women's team won five national championships and had an overall record of .708. P118.[1] By contrast, as of the date of Miller's non-renewal, the men's team under Sandelin had won one national championship and had an overall record of .508. P118. Of course, as UMD strenuously argued at trial, UMD was entitled to place more weight on Miller's recent performance and to demand a lot from her in light of her high salary. But the jury could reasonably have concluded that Miller's and Sandelin's recent performances were not so dissimilar as to explain UMD's treatment of Miller, particularly in light of Miller's overall stellar record.

         There was also robust evidence that, after Miller filed this lawsuit, UMD's explanation for terminating her shifted from primarily budget based to primarily performance based. UMD points to evidence that it had raised the issue of Miller's performance before it decided not to renew her contract. But UMD ignores the overall tenor of the parties' earlier discussions, which strongly suggested that UMD would happily have renewed Miller's contract if not for the budget problems it was experiencing. In particular, UMD ignores the tenor of the December 9 discussion at which Berlo and Black informed Miller that her contract would not be renewed. During that meeting, Miller repeatedly pushed for an explanation, and Berlo and Black repeatedly emphasized budget shortfalls and denied that their decision had anything to do with Miller's performance. P64. At trial, however, UMD reversed course and insisted that it decided not to renew Miller's contract because her performance had deteriorated so much in recent years that it would not have renewed her contract even if she had agreed to a drastic salary reduction.

         The jury could also have found that UMD's claim that Miller's non-renewal was performance-based was inconsistent with UMD's actions. If UMD was so unhappy with Miller's recent performance that it was unwilling to keep her at any price, then why did UMD continue to suggest throughout the summer and fall of 2014 that the parties would eventually be able to reach an agreement? Alternatively, if UMD wanted to give Miller one last chance to improve her performance before making a final decision, why did it give her only half a season to improve-and then yank the rug out from under her when the team was improving (indeed, when the team was ranked sixth in the nation)?

         Given the shock in the hockey community about Miller's firing, the disparate treatment of Miller and Sandelin, UMD's shifting rationales, and the mismatch between UMD's actions before and claims during trial, the jury was entitled to find that UMD's proffered explanation was pretextual, which in turn gave the jury a sufficient basis to find discrimination and retaliation. Estes v. Dick Smith Ford, Inc., 856 F.2d 1097, 1101 (8th Cir. 1988) ("If Estes can establish that this proffered explanation was unworthy of credence, then he will have made an indirect showing of discrimination which may persuade the finder of fact."), overruled in part on other grounds by Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).

         In addition to evidence of pretext, there was scattered evidence from which the jury could have concluded that Berlo had difficulty working with powerful women and, in particular, thought that Miller needed to be taken down a peg. For example, the jury heard about an incident in which Berlo objected to an April 2014 email blast to alumni touting the unparalleled success of the women's hockey team because, he said, it was "in poor taste." TT 313-14, 748-49, 953-54. In contrast, Berlo did not object to a large billboard celebrating his own selection as an athletic director of the year. TT 749. There were also other examples indicating hostility to women's hockey specifically and to powerful women generally. See, e.g., TT 54 (Berlo gave the cold shoulder to Kathryn Martin, the former chancellor of UMD); TT 868 (the women's hockey team "didn't get a lot of love" on the athletic department Twitter account); TT 940-41 (Berlo called Miller on a game day to talk about the budget, which Miller found highly unusual, and to tell Miller that she'd "better win"); TT 941-42 (Berlo described another coach who raised Title IX issues as "a pain in the ass"); TT 954 (women's hockey did not get a lot of marketing support); TT 970 (after Berlo became athletic director, the "Skate With the Bulldogs" event was scheduled when the women's team could not attend); TT 981 (before the women's series with Cornell, Berlo tweeted that "this will be a very telling weekend/' but was silent after UMD swept Cornell); TT 1149 (Berlo decided to give a meal benefit only to the men's team and told Banford, who was also a member of Miller's staff, that she would have to "control" Miller to make sure she focused on what she had and not what the men had).

         UMD countered all of these points with plausible arguments of its own. For example, UMD introduced evidence that the timing of its decision not to renew Miller's contract was the result of Miller herself insisting on a decision before Christmas. But the jury could reasonably have found that this was not the real reason for the timing of UMD's decision, as Miller had been pushing for a decision on her contract for months. Likewise, UMD argues that Sandelin is not a proper comparator because his contract was not up for renewal at the same time as Miller's. But the jury was not required to regard that distinction as significant. UMD had the right to terminate Sandelin without cause on 90 days' notice. TT 538-39. Moreover, Sandelin's contract was renewed in 2011 under Black and again in 2016 under both Black and Berlo despite the similarities in Miller's and Sandelin's recent records. P120, P121. The jury could reasonably have found that these renewals were difficult to square with Black's and Berlo's 2014 decision not to renew Miller's contract-which, significantly, was the first and only time Miller's contract was under consideration by either Black or Berlo.

         Finally, UMD argues that most of the Title IX complaints Miller made were too remote in time to raise an inference of retaliation. The jury could have found, however, that Miller continually complained to both Berlo and Black about disparities in resources between the men's and the women's teams. TT 478-79, 958-64, 1138-39, 1226-27. Indeed, evidence that Berlo anticipated-and tried to head off-Miller's objection to his plan to give a meal benefit to the men's team and not to the women's team is by itself strong evidence that Miller habitually complained of such disparities. TT 1149.

         There was also evidence indicating that Berlo found these complaints irritating. Berlo called another coach who kept raising Title IX issues "a pain in the ass." TT 941-42. Moreover, after Berlo decided to offer a new meal benefit to the men's team but not to the women's team, he warned Banford that she would have to "control Shannon on this one and make sure she focuses on what she has and not what the men have." TT 1149. Based on this evidence, the jury could have found that Berlo was irritated by Miller's complaints about inequalities between the men's and women's programs and wanted to get rid of her.

         UMD points out that it offered evidence calling into question whether Miller raised Title IX complaints as frequently as she claimed, as well as evidence that UMD took action in response to her complaints. But the jury was not required to credit UMD's evidence about the frequency of Miller's complaints. And the jury could also have concluded that Miller remained dissatisfied with disparities in resources and that, as a result, UMD wanted her gone. Moreover, the fact that UMD took action in response to Miller's complaints does not mean that UMD was not irritated by those complaints or that UMD did not retaliate against Miller for making them. As noted, there was evidence from which the jury could have inferred that Berlo found Miller's complaints irksome. Based on the evidence about Miller's and Berlo's interactions, the jury could also have inferred that Berlo was somewhat intimidated by Miller, who has a direct, forceful, and no-nonsense demeanor. The jury could have inferred that Berlo was cowed into taking some action in response to Miller's complaints but that he resented her and took the first "neutral" opportunity he had-the occasion of her contract expiring in June 2015-to retaliate.

         Again and again, UMD offers reasons why the jury could have found in its favor. The Court agrees that a reasonable jury could have returned a verdict in favor of UMD. But that is not the question. The question is whether a reasonable jury could have returned a verdict for Miller. The fact that there was evidence supporting UMD's position does not mean that there was no evidence supporting Miller's. This was a classic case in which the jury could reasonably have found for either party. The Court therefore denies UMD's motion for judgment as a matter of law.

         B. New Trial

         1. Weight of the Evidence

         When a party moves for a new trial on the ground that the verdict is against the weight of the evidence, "the court should only grant a new trial to avoid a miscarriage of justice." Howard, 615 F.3d at 995. Having reviewed the trial record, the Court is confident that there was no miscarriage of justice. Reasonable minds could differ as to the inferences to be drawn and, as discussed above, the jury had a sufficient basis on which to find discrimination and retaliation. The Court therefore denies HMD's motion for a new trial on the ground that the verdict is against the weight of the evidence.

         2. Evidentiary Errors

         UMD also argues that the Court erroneously permitted Miller to introduce certain categories of evidence that misled the jury and affected the outcome of the trial. In particular, UMD points to four categories of evidence that it contends were erroneously admitted: (1) evidence of Miller's pay as compared to Sandelin's; (2) evidence of industry-wide discrimination against female coaches; (3) evidence of complaints by Miller that predated Black's and Berlo's appointments; and (4) evidence of the athletic department's finances.

         For these alleged evidentiary errors to warrant a new trial, UMD must show that they "prejudicially influenced the outcome of the trial." Coterel v. Dorel Juvenile Grp., 827 F.3d 804, 807 (8th Cir. 2016) (citation and quotation marks omitted); see also Fed. R. Civ. P. 61 ("Unless justice requires otherwise, no error in admitting or excluding evidence-or any other error by the court or a party-is ground for granting a new trial.... At every stage of the proceeding, the court must disregard all errors and defects that do not affect any party's substantial rights."). "The key question is whether a new trial is necessary to prevent a miscarriage of justice." Coterel, 827 F.3d at 807 (cleaned up).

         Applying these principles, the Court finds that a new trial is not warranted. To begin with, none of this evidence was erroneously admitted. Evidence of the athletic department's finances and the pay differential between Miller and Sandelin was relevant to UMD's argument that Miller was not worth the salary that UMD paid her, as well as to UMD's claims-repeatedly made both in public and in private-that it simply could not afford to extend Miller's contract. In addition, as the Court explained at the pretrial conference, whether Miller had a triable claim under the Equal Pay Act (she didn't) is a much different question than whether the pay disparity between Miller and Sandelin was relevant to her discrimination claim (it was). See Fed. R. Evid. 401 (evidence is relevant if it "has any tendency to make a [consequential] fact more or less probable than it would be without the evidence"); cf. Estes, 856 F.2d at 1104 ("Evidence of prior acts of discrimination is relevant to an employer's motive in discharging a plaintiff, even where this evidence is not extensive enough to establish discriminatory animus by itself.").

         Similarly, evidence of Miller's many complaints of sexism and disparate treatment was relevant to the issue of pretext. It also supported Miller's claim that she frequently complained to Berlo and Black about disparities in resources between the men's and women's teams, as it tended to show that Miller was unafraid to confront her bosses (whomever they were) about perceived inequities and that she would not take "no" for an answer (from anyone). And finally, the evidence of industry-wide discrimination about which UMD complains consisted of a single question and answer concerning the impact of Title IX on the number of female coaches.[2] See ECF No. 629 at 20; TT 430-31. This testimony was part of a general introduction to Title IX that Miller's expert provided to the jury and was relevant for that purpose. Even if it was erroneously admitted, it was so fleeting a point that it could not possibly have prejudiced the jury.

         Likewise, even if some of the other evidence about which UMD complains was erroneously admitted, that error almost surely did not impact the jury's decision. UMD tries to portray a case that went off the rails and turned into a wide-ranging referendum on sexism in society at large. That is simply not what happened. In reality, the evidence in most of the categories about which UMD complains was minimal, none of the evidence was particularly inflammatory, [3] and the trial was appropriately dominated by evidence and argument about the credibility of UMD's proffered explanation for its decision not to renew Miller's contract. The jury was not asked to decide, for example, whether UMD discriminated against Miller with respect to pay; instead, it was specifically asked to decide whether Miller's sex and Miller's Title IX complaints factored into UMD's decision not to offer her a new contract. ECF No. 569. The jury returned a verdict in Miller's favor on these issues, and the jury had a sufficient evidentiary basis for that verdict. HMD's motion for a new trial on the basis of alleged evidentiary error is denied.

         3. Closing Argument

         UMD also contends that it is entitled to a new trial on the basis of allegedly inflammatory comments made by Miller's attorney during his closing argument. Specifically, UMD challenges the following remarks:

And this [Miller's termination] was not done for good reason, but for a discriminatory reason. And it's time-it's interesting that this happens when it happens or that this trial happens when it happens. You think about what's going on throughout the whole world. Right? And you think about women standing up. . . .
Women are saying that's enough, no more, me too, time is up to bias and discrimination. And that's a wonderful thing. And Shannon Miller is a champion of herself and of women's rights you might say to a fault because she hasn't been able to get a job. She has become radioactive. People won't touch her. She could apply for 500 jobs at this point until this lawsuit is done anyway. And, you know, we asked her, Well, Coach, you knew this was going to happen, didn't you? You know, you've had people say this was a hard thing. She said, I don't care about that issue. Women need to stand up. I needed to stand up. I was not going to put my head between my legs and let them do this to me. My players look up to me. I want to be a role model for my players even if it hurts me. And she stood up. She filed this lawsuit because she had confidence when people from this community came into court and learned the whole story here and how UMD has not been frank, has not been candid that you would do the right thing.

TT 1850-51.

         "When a new trial motion is based on improper closing arguments, a new trial should be granted only if the statements are plainly unwarranted and clearly injurious and cause prejudice to the opposing party and unfairly influence a jury's verdict." Smiley v. Gary Crossley Ford, Inc., 859 F.3d 545, 556 (8th Cir. 2017) (citation and quotation marks omitted). In determining whether to grant a new trial based on improper closing arguments, courts consider (1) whether the remarks were minor aberrations made in passing; (2) whether the court took curative action; (3) whether the size of the damage award suggests that the remarks had a prejudicial effect; and (4) the weight of the evidence. Ventura v. Kyle, 825 F.3d 876, 885 (8th Cir. 2016).

         Considering these factors, the Court finds that a new trial is not warranted. The challenged remarks were a minor aberration-a brief and vague reference to the "Me Too" movement used to invoke the general concept of standing up for one's rights. Miller's counsel immediately tied this concept to the perfectly permissible argument that, as a consequence of UMD's actions and Miller's decision to bring a lawsuit, Miller has not been able to find a new coaching position. UMD contends that the remarks were part of an overall attempt by Miller to turn this case into a referendum on societal discrimination, but, as discussed above, that is not what happened. The question that was front and center throughout the trial was the question that should have been front and center: Why did UMD decide not to renew Miller's contract?

         It is true that the jury returned an extraordinarily large award for past non-economic damages. That award gives the Court some pause-and, indeed, the Court agrees with UMD that the award is so excessive as to warrant remittitur (as the Court explains below). But in the context of this case-a lawsuit against a state university by an extraordinarily successful coach who was unlawfully terminated after leading the program that she had built from the ground up to multiple national championships- the award is not so large as to indicate that the jury's findings regarding liability were the result of improper passion and prejudice.[4]

         UMD compares this case to Gilster v. Primebank, a sexual-harassment and retaliation case in which the plaintiff's lawyer spoke at length about her personal experience of being sexually harassed by a law professor, contrasted her own decision to remain silent with her client's courage in coming forward, referred to her other clients' experiences with harassment, and repeatedly vouched for her client's credibility. 747 F.3d 1007, 1010-13 (8th Cir. 2014). The comments of Miller's attorney were nothing like the detailed and emotionally charged vouching of the plaintiff's attorney in Gilster. A new trial is not warranted.

         C. Remittitur

         The jury awarded $744, 832 to Miller for lost past wages and benefits-that is, the amount of wages and fringe benefits that Miller would have earned at UMD from the date her final contract expired (June 30, 2015) to the date of the jury's verdict (March 15, 2018). ECF No. 569 at 3. The jury also awarded Miller an additional $3 million for "[o]ther past damages"-defined to include damages for the "emotional distress, mental anguish, loss of reputation, and other non-monetary losses" that Miller sustained during the same 32-month period. ECF No. 577 at 8. UMD argues that the jury's awards are excessive as a matter of law.

         "The district court can remit a jury verdict only when it is so grossly excessive that there is plain injustice or a monstrous or shocking result." Eckerberg v. Inter-State Studio & Publ'g Co., 860 F.3d 1079, 1087 (8th Cir. 2017) (citation and quotation marks omitted). In considering a motion for remittitur, a court must bear in mind that "a jury is the best-equipped entity to determine the size of a damage award." Eich v. Bd. of Regents for Cent. Mo. State Univ., 350 F.3d 752, 763 (8th Cir. 2003). The court should not grant remittitur merely because it would have awarded a different amount. Bennett v. Riceland Foods, Inc., 721 F.3d 546, 553 (8th Cir. 2013).

         1. Past Non-Economic Damages

         UMD argues that the jury's $3 million award in past non-economic damages grossly exceeds the maximum amount that has ever been upheld by the Eighth Circuit for the type of garden-variety emotional distress at issue in this case. According to UMD, the evidence warrants an award of no more than $100, 000 in past non-economic damages.

         "In general, awards for pain and suffering are highly subjective and should be committed to the sound discretion of the jury, especially when the jury is being asked to determine injuries not easily calculated in economic terms." Townsend v. Bayer Corp., 774 F.3d 446, 466 (8th Cir. 2014) (citation and quotation marks omitted). Nevertheless, having presided over the trial and reviewed the applicable law, the Court agrees that $3 million is a shockingly excessive amount to compensate Miller for 32 months of past non-economic damages. So far as the Court and the parties can discover, neither the Eighth Circuit nor any district court within the Eighth Circuit has ever upheld an award remotely comparable to the award in this case. To the contrary, in Kim v. Nash Finch Co., 123 F.3d 1046 (8th Cir. 1997), an employment case in which the jury awarded $1.75 million for a past and future emotional distress (approximately $2.79 million in today's dollars[5]), the Eighth Circuit affirmed the district court's reduction to $100, 000 ($160, 000 in today's dollars), characterizing the jury's award as "grossly excessive." Id. at 1067. In this employment case, the jury awarded Miller almost $100, 000 per month for her past emotional distress and other non-monetary damages.

         Miller points to two cases in which the Eighth Circuit has affirmed multi-million-dollar awards: Ondrisek v. Hoffman,698 F.3d 1020, 1027 (8th Cir. 2012) (affirming compensatory damages of $3 million), and Rustenhaven v. American Airlines, Inc.,320 F.3d 802, 807-09 (8th Cir. 2003) (remitting jury award of $4.24 million to $3.24 million). But Ondrisek and Rustenhaven bear no resemblance to this case; indeed, Ondrisek ...

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