Friday, February 15, 2019

UMD Liable for Front Pay in Retaliation Case

Last year when a jury ruled in favor of Shannon Miller in her lawsuit against University of Minnesota-Duluth, it awarded her nearly $3.75 million in compensation for past damages after it concluded that the university terminated her with unlawful retaliatory and discriminatory motives in violation of Title IX and Title VII.

Left unresolved at the time was how the university should remedy her present and future injury of present and future remedy, which Miller argued should be addressed by an order requiring the university to reinstate her to her former position. In the alternative, she argued for a a front pay award of $3 million.  A federal court judge ruled on her motion this week. He determined that reinstatement was not an appropriate remedy due to the position having already been filled. The current coach is now in her fourth season and most of the current players have been recruited by her. Accordingly, it would be unduly disruptive to reinstate Miller to her former position. Instead, the court agreed to a monetary alternative in the form of front pay.

Front pay is an award of damages that in unlawful termination cases that requires the factfinder to determine what the plaintiff would earn from the date of the verdict going forward if they had not been fired (back pay, in contrast, compensates the plaintiff through the date of the verdict). It then takes into account what the plaintiff is earning in whatever new job they may have, and if that is less, awards the plaintiff the difference. The court did not agree with Miller's speculation that she would have worked at UMD for 12-15 more years from the date of verdict; pointing out that 30-year tenure for any Division I head coach is rare. But nor did the court accept UMD's position that Miller was fully compensated by the back pay award Miller had already been awarded. Instead, the judge found sufficient evidence that Miller would have worked at UMD for another five years from when she was terminated. Her front pay award was therefore calculated at her UMD salary from the date of the verdict through through June 2020. Then it was offset by the $30,000 Miller earns annually as the head coach of the Calgary Inferno professional women's hockey team. The total, $461,278, brings UMD's total liability to around $4.2 million.

One thing that I found noteworthy about this opinion is the particular role that Title IX played, relative to Title VII, in driving the damages award in this case. The judge's opinion on front pay noted that the plaintiff was not entitled to damages or reinstatement on her Title VII claim, even though the jury found that sex discrimination had been a motivating factor in her termination, because the jury had found evidence that UMD would have fired Miller anyway. Under Title VII, a so-called "mixed motive" finding like this limits the plaintiff to only declaratory relief and attorneys fees. Title IX, however, is not governed by the mixed-motive provision of Title VII, so damages are allowed even when university defendants demonstrate that a non-discriminatory or non-retaliatory reason would have lead them to make the same adverse employment action.

Decision: Miller v. Bd. of Regents of the Univ. of Minnesota, 2019 WL 586674 (D. Minn. Feb. 13, 2019).