By Jeff Birren, Senior Writer
Jen Banford and Annette Wiles coached at the University of Minnesota Duluth (“UMD”). Both resigned from the athletic department and sued UMD, alleging various claims including disparate treatment. The District Court granted UMD’s motion for summary judgment, ruling that their sexual orientation claims were not viable under Eighth Circuit precedent. After they appealed, the Supreme Court issued an opinion holding that the relevant federal statute did prohibit employment discrimination based on sexual orientation. The Eighth Circuit remanded the case to the District Court where UMD renewed its summary judgment motion on the Title VII sexual orientation and discharge claims. The District Court recently granted that motion (Banford v. Bd. of Regents, Case No. 15-cv-3740 (PJS/LIB),20210 U.S. Dist. LEXIS 77142, 2021 WL 1575639 (4-22-21)) at 2).
Banford had been the women’s softball team head coach since 2005 and had a winning record. In 2009 she also joined Head Coach Shannon Miller’s hockey staff as director of operations. Banford and Miller were “partners” (Id. at 5). Joshua Berto became UMD’s athletic director in 2013. He played a “key role” in the decision to not to renew Miller’s contract, as well as three members of Miller’s staff including Banford. UMD offered to renew Banford’s contract as the softball Coach and told her that once a new hockey coach was hired, she could reapply to be director of hockey operations. Banford “declined the offer” for a new softball contract.
Wiles was hired as the women’s basketball team head coach in 2008. She had a winning record, and the players had a 100% graduation rate with the highest-grade point average of any team at the school. Her contract was set to expire in December 2015 and UMD “did not seek to negotiate a renewal.” Wiles was told that “there were no plans to renew her contract.” Her contract stated that she was entitled to six-month’s notice of a decision to not renew the contract, and if that was not done, then the contract would automatically be extended. UMD did not give Wiles the non-renewal notice and thus the contract was automatically extended. “Wiles nevertheless resigned on June 1, 2015, due to work-related stress and resulting health issues” (Id. at 3).
In 2015 Miller, Banford and Wiles sued UMD, asserting various claims, including inter alia, federal claims for discrimination based on sex and sexual orientation under national and state law. UMD filed motions for summary judgment on all claims. The Court granted the motion as to Banford and Wiles, but Miller defeated the motion on her claims for Title VII sex discrimination and retaliation. She subsequently prevailed at trial (SLA, “Court Sides with Plaintiff in Miller v. Board of Regents” Valencia & Birren, 10-25-19). Miller and UMD later settled (Banford at 2, FN1). Banford and Wiles appealed, and after the Supreme Court ruling, the Eighth Circuit remanded the case to the District Court. UMD then renewed its motion for summary judgment. In the meantime, their state court case had been dismissed due to the statute of limitations. That was affirmed on appeal.
The Court stated the summary judgment standard and analyzed the “hostile environment claims under Title VII.” To prevail, “a plaintiff must show that ‘(1) she is a member of the class of people protected by the statute, (2) that she was subject to unwelcome harassment, (3) the harassment resulted from her membership in the protected class, and (4) the harassment was severe enough to affect the terms, conditions, or privileges of her employment’” (Id.). The court considers the “totality of the circumstances, including the frequency and severity of the conduct, whether it is physically threatening or humiliating, and whether it unreasonably interferes” with the plaintiff’s job performance (Id. at 4).
The Court previously found that Banford and Wiles “failed to show that they were subject to a hostile environment” but it had “disregarded certain incidents of mistreatment related to sexual orientation,” as required by then current Eighth Circuit precedent. Given the change in the law, the Court re-analyzed the hostile environment claims.
Banford “primarily relies on what the plaintiffs call the ‘purge list.’” That referred to internal UMD emails “concerning the potential non-renewal” of contracts of Banford, Miller and five others that were “openly gay women” and this was alleged to be “evidence of a hostile environment toward gay women” (Id.). However, Banford “was not aware of these internal discussions” and this standing alone, could not “have created a hostile environment” (Id. at 5). Banford cited no “evidence of severe harassment or other misconduct of which she was aware.” She also tried to “rely mainly on her claim that officials in the athletic department avoided talking or meeting with her after she received her non-renewal letter” and that “plainly does not rise to the level of a Title VII hostile-environment violation.”
Banford’s brief included other facts in the “background section”, but it was “unclear” whether she relied on these incidents since they were not mentioned in her analysis. Moreover, there was “little or no evidence connecting them to Banford’s sex or sexual orientation” and those incidents were “insufficiently severe to establish a hostile environment (whether considered individually or as a whole).” The incidents were over nearly ten years, and the most disturbing incident occurred “outside of Banford’s presence,” and UMD took remedial action. Those “unrelated incidents, spread out over many years, are insufficiently severe to establish a hostile environment.” The Court thus granted UMD’s motion “with respect to Banford’s hostile-environment claim” (Id.).
Wiles primarily relied on a conversation with Berto in October 2013 when he declined to attend a “luncheon marking National Coming Out Day.” Berto may have not told the truth about why he would not attend, later admitting “that’s not really my thing” and told another member of the department that he “had better things to do than to listen to a bunch of old ladies talk diversity” (Id.). Wiles also pointed to the “purge list” and other complaints including a budget cut, exclusion from a strategic planning committee, an unreasonably low raise, though that was later “remediated after Wiles complained,” having meetings scheduled when she was not available and being treated in “a cold and distant manner.” Wiles, like Banford, was not aware of the “purge list” communications, and the other cited incidents “fall far short of the severe and pervasive conduct that gives rise to a hostile environment claim” so UMD’s motion was granted (Id. at 6).
The Court noted that the parties agreed that this claim had to be analyzed under the “burden-shifting framework of McDonell Douglas Corp. v. Green, 411 U.S. 792 (1973)”. The plaintiff “must first establish a prima facie case by offering evidence that (1) she is a member of a protected group; (2) that she was qualified for her position; (3) she suffered an adverse employment action; and (4) the circumstances permit an inference of discrimination” (Id.). If that happens, the burden shifts to the employer “to articulate a legitimate, non-discriminatory reason for the adverse action.” Then “the plaintiff must show that the proffered reason is merely a pretext for discrimination.”
In the prior ruling, the Court agreed with Banford that the non-renewal of her hockey position constituted an adverse employment action, but not as to her softball position. Banford “takes issue with the latter determination.” However, it was undisputed that UMD offered her a new softball contract and at a higher base salary (Id.). Apparently Banford was “making a constructive-discharge argument” that the non-renewal of her hockey position meant losing that extra salary and that loss “forced her to reject” the new softball contract, though at the first summary judgment hearing, “Banford explicitly disavowed any claim that she was constructively discharged from the softball position” (Id. at 7). This claim thus failed “for lack of an adverse employment action.”
The Court then examined the non-renewal of the hockey position. That claim, “fails for different reasons.” Although three members of the hockey staff that were let go were gay women, Berto knew that at least two of the three retained women were also gay, so it was “difficult to find an inference of discrimination” (Id. at 8). Banford sought to do so by pointing to similarly situated employees outside of the protected class “who were treated better than the plaintiff.” However, those employees were “not valid comparators” as they were not similarly situated to Banford. To the Court, the closest comparator was the male coach of the men’s baseball team, but “UMD treated Banford better than her counterpart” as her salary “was actually higher” than his salary, and UMD tried to retain her.
The Court next analyzed the pretext claim, finding that UMD had “articulated a legitimate, non-discriminatory reason” for not renewing her hockey contract, and Banford did “not have sufficient evidence to allow a jury to find that UMD’s explanation is pretextual.” UMD stated that it wanted the new hockey coach to be able to hire her own senior staff, and this was common in sports, as “causal fans know” and “even a non-sports fan can learn by spending a few minutes on the internet” (Id.).
Banford argued that it was not common to discharge a head of operations when the head coach was fired, that her position more closely resembled the two women who were retained rather than the two other women that were terminated, and that all the women who were “targeted” for non-renewal were gay (Id. at 9). The “most obvious fact undercutting” the attempt to show pretext is that all of the women, retained or not, “were gay women.” UMD “renewed some gay women and did not renew other gay women” and therefore something else “must have been driving UMD’s decision.” Banford contended that only one of the three retained gay women was openly gay, but Berto “knew” that at least five members of the staff were gay. Banford was thus “complaining that she was treated more harshly than other gay women” and this “is inconsistent with an inference of discrimination” (Id.).
Banford asserted that her position was distinguishable from that of the other two non-retained coaches, but “Banford’s position was also distinguishable” from those that were retained. Banford admitted that the head coach “directed” her “activities” and “assigned her roles and responsibilities.” Her work was broader in scope than that of the retained staff. The “relevant question is whether” that the stated preference to allow the new head coach to select her own staff was a “pretext for discrimination” (Id. at 10).
UMD consistently “cited the desire to allow” the new coach “to hire her own director of operations… even in a secretly recorded private conversation”; “UMD had an objective basis” for this because the head coach directed that person’s work; “UMD always intended to” renew Banford’s softball contract; and at a higher salary than that of her male counterpart. Banford argued that all the women UMD considered not renewing were openly gay, but five were on the hockey staff “which was undergoing a major change because the head coach was being fired.” “Given that” the entire hockey staff was gay, “the fact that UMD considered non-renewing multiple gay women does little to show pretext” Id.). The Court therefore granted the summary motion on the claim for discriminatory non-renewal.
Banford “says that she is also pursuing a constructive-discharge claim” but her brief did not “explicitly address such a claim.” Constructive discharge requires a showing that the working conditions were “so intolerable that a reasonable person would have felt to resign.” It is a “more demanding standard” than that applied to hostile environment claims (Id.). As Banford failed to offer “sufficient proof of a hostile environment claim, she necessarily has failed to offer sufficient proof of constructive discharge” (Id. at 11).
Wiles also relied on much of the same conduct that she cited in support of her hostile-environment claim. As that was “insufficient” to establish that claim, it was “necessarily insufficient to establish a constructive-discharge claim.” Wiles also asserted that UMD’s “failure to offer her a new contract … caused her anxiety, and that her anxiety caused her to quit.” The Court “did not doubt” that this “caused her a great deal of anxiety, especially in light of the harsh criticism that she had received from her players.” However, this “cannot be characterized as ‘so intolerable that a reasonable person would have felt compelled to resign.’” Wiles was “entitled to six months’ written notice of non-renewal.” She had not received that notice and consequently, her “contract had been extended, and she was not in danger of losing her job.” UMD’s motion was granted, and all remaining claims were dismissed “with prejudice and on the merits.”
The case will now return to the Eighth Circuit. Coaches and counsel should take note that being the member of a protected class does not mean that coaches cannot be terminated, but the terminating institution must comply with federal and state law when doing so. Coaches should be reminded that such litigation is fraught with road bumps and can take years to resolve. It is not for the impatient.