University of Minnesota-Duluth to Face Trial on Coach's Sex Discrimination and Retaliation Claims

Last week the federal district court in Minnesota ruled on the University of Minnesota's motion for summary judgment  in a multi-count lawsuit filed against it by three female former coaches at the Duluth campus, who had alleged a variety of discrimination claims arising from their employment. Though the court granted summary judgment on several of the plaintiffs' claims, it refused to dismiss Coach Shannon Miller's claim that sex discrimination motivated the university's decision not to renew her contract, and her claim that the university retaliated against her for raising Title IX concerns. Those issues are now heading for trial scheduled in March.

Sex discrimination. UMD defended its decision not to renew Miller's contract on two grounds: the poor performance of the women's hockey team, which Miller coached, and the lack of "return on investment" for continuing to pay Miller's relatively high salary. Yet the court acknowledged, there is sufficient evidence that jury could conclude that these explanations were in fact pretext for sex discrimination. Specifically, the court identified: (1) evidence that the men's hockey coach was retained comparable or worse performance of his team; (2) evidence that the department used different criteria to evaluate Miller's renewal than the renewal of the men's team's coach; (3) the fact that the department gave inconsistent explanations for Miller's nonrenewal (saying first it was because of finances, then later arguing it was based on performance); evidence that the university's financial situation "was not as dire as it claimed"; and (5) the fact that the department did not pursue alternatives to nonrenewal that would have been consistent its ostensible concern about finances, such as asking Miller to take a pay cut or seeking donors to fund her salary. 

Retaliation.  The court also concluded there was sufficient evidence on which a jury could conclude that the university had retaliatory motives, in addition or instead of a desire to get rid of Miller because of her sex. Miller engaged in protected conduct by complaining to athletic department administrators about Title IX violations that affected her team. These complaints "continued until shortly before" the athletic director decided not to renew her contract. This timing, along with other evidence, could convince the jury that UMD terminated Miller to punish her for advocating for Title IX.  

Hostile Environment Based on Sexual Orientation. The court dismissed the claims of all three plaintiffs that the athletic department cultivated and tolerated a hostile environment on the grounds that they are lesbians.  After acknowledging that these claims were "strong" the court nevertheless dismissed them on the grounds that federal law does not expressly prohibit discrimination on the basis of sexual orientation. (While Minnesota law does prohibit sexual orientation discrimination, the court concluded that it did not have jurisdiction over these state law claims.) This seems like an appealable issue to me. The nearby Seventh Circuit has reasoned that sexual orientation discrimination is a form of sex discrimination, and other circuit courts may be on the verge.  An appeal here could give the Eighth Circuit Court of Appeals an opportunity to get on board with this emerging and civil-rights expanding interpretation of sex discrimination under Title VII and Title IX. 

Equal Pay. The court also dismissed Coach Miller's Equal Pay Act claim. Even though she was paid less than her men's team counterpart, a male, the court nevertheless determined that his job was not comparable to hers because the men's hockey team draws a bigger audience, more revenue, and as a result puts more pressure on him to win.  This outcome is disappointing but not surprising as other female coaches' equal pay act claims have failed due to judges' unwillingness to see equivalence between coaching women and coaching men. Unfortunately, the rationale permits sex discrimination in the marketplace to justify lower salaries for female coaches who work just as hard and have no control over the public's bias.  

Decision is: Miller v. Bd. of Regents of the Univ. of Minn., 2018 WL 659851 (D. Minn. Feb. 1, 2018).