By Leticia F. Valencia & Jeff Birren, Senior Writer
Successful head coaches are often difficult to work with, and so it was with Shannon Miller. Miller was the successful head coach of the University of Minnesota-Duluth (“UMD”) women’s hockey program. She had a storied career on the ice, but within the athletic department she was no stroll on the beach. Perhaps that was the real reason the school terminated Miller, or maybe it was claimed financial situation, or both. That decision led to four years of litigation involving Miller’s claims for Title IX retaliation and Title VII sex discrimination, claims that recently settled, though two cases brought by other UMD coaches remain on appeal.
Background: Miller was born in Canada in 1963. She played collegiate hockey and later turned to coaching. She was the head coach of Canada’s women’s national team that won the gold medal at the 1997 International Ice Hockey Federation Women’s Championships and a silver medal at the 1998 Winter Olympics (Shannon Miller, Jen Banford & Annette Wiles v. The Board of Regents of the University of Minnesota, CaseNO. 0:15-cv-03740-PJS-LIB, U.S. District Court Minnesota, 9-28-15 (“Complaint”), ¶¶11-13).
She was hired as UMD’s women’s head coach in 1998 to start the program (Id. at ¶14.). During her sixteen seasons, the school won over 70% of its games, five national championships, made the “Frozen Four eleven times, and Miller won several coach of the year awards (Id. at ¶10; ¶¶15-16). Unfortunately during her last four years the school finished fourth in the conference and it was during this period that the troubles accelerated.
The athletic department was having financial woes and in the past, Miller and the other members of her staff had voluntarily taken pay cuts. On December 9, 2014 Athletic Director Berlo and Chancellor Black told Miller that the contracts for Miller and her staff would not be renewed. They could resign or be terminated they informed her. Miller declined and on December 15, 2014 UMD announced that Miller was being terminated (Id. at ¶25, ¶28).
Ms. Banford was hired in 2005 as the women’s softball coach and director of operations for the women’s hockey team. Her contract was also not renewed. Ms. Wiles, hired in 2008 as women’s basketball coach, had resigned due to a hostile work environment.
The Complaint: Miller, Banford and Wiles sued. According to the Complaint, all three women identify as gay. The Complaint is 45 pages and asserted eight allegations. Count One was for discrimination on the basis of sex, sexual orientation, national origin and/or age under Minnesota Human Rights Act Minn. State §§ 363A.01 et seq. Count Two was for reprisal under that statute.
The third count was for discrimination of the basis of sex and/or national origin under the U.S. Civil Rights Act of 1964 and 1991, 42 U.S.C. § 2000e et seq. The fourth count was for the creation of a hostile work environment under the Act and the aforementioned Minnesota statute.
Count Five was for unlawful retaliation and discrimination under Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 et seq. Count Six was for violation of Minnesota’s “Equal Pay For Equal Work Law” § 181.66 et seq. Count Seven was for violation of the federal equal pay act, 29 U.S.C. § 206(d)(1). The final count was for violation for the Minnesota Whistleblower Statute, § 181.932.
The plaintiffs sought damages for back pay, front pay, emotional distress and compensatory damages based on proof, plus prejudgment interest and prejudgment interest, plus reasonable attorneys’ fees, costs, prejudgment interest on those items, plus the usual request for “other and further relief as may be proper under the circumstances” (Id. at 44). The case was assigned to Judge Patrick Schiltz.
Summary Judgment Motion: UMD answered the Complaint and after more than a year of motion practice wrangling, UMD filed a motion for summary judgment on April 13, 2017. The motion included over 130 exhibits. The opposition was filed on June 2, 2017.
The court noted that 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” (Order, 2/01/18 (“Order”) at 3.) The court dismissed with prejudice the federal law sexual-orientation claims “because the Eighth Circuit has held that ‘Title VII does not prohibit discrimination against homosexuals’” (Id. at 5). Those state law claims were dismissed for lack of jurisdiction. The court stated that those claims could have been pursued in state court.
The court ruled that Miller did not have sufficient evidence of a hostile work environment, or her equal pay act claim and granted the motion on those claims as well. It did not grant the motion on Miller’s claims for Title VII discrimination and Title IX retaliation. All of her other federal law claims were “DISMISSED WITH PREJUDICE AND ON THE MERITS.” Miller’s state claims were “DISMISSED WITHOUT PREDUDICE FOR LACK OF JURISDICTION” (Id.at 35) (capitalization in the original).
Miller fared far better than either Banford or Wiles. Their state law claims were also dismissed without prejudice but all of their federal law claims were dismissed with prejudice (Id. at 34/35).
State Court: The three plaintiffs re-filed their state law claims in state court on March 15, 2019 (Shannon Miller, et al v. The Board of Regents of the University of Minnesota, Minnesota Court of Appeals, Case No. A18-2140, 9-3-19 (“MillerCoA”) at 3). UMDfiled a motion to dismiss. The district court declined to equitably toll the statute of limitations and ruled the claims were untimely (Id.). The State Court Appeals issued its unpublished opinion on September 3, 2019 and affirmed “the district court’s dismissal of the coaches; MHRA and equal-pay claims on statute-of limitations grounds, and dismiss of the coaches MWA claims on the basis of the MHRA’s exclusivity provisions” and consequently did not reach the alternative arguments (Id. at 12). All three appellate justices were women. The coaches filed for review in the state supreme court, and as of this writing, no action has been taken on the request.
Trial: Miller’s federal court trial began March 6, 2018, and ended March 15. At trial it emerged that UMD’s action were the culmination of efforts to get rid of her due to her incessant complaining about the inequalities in treatment between the men’s and women’s hockey teams. “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” (Miller Opinion, 2019 U.S. Dist. LEXIS 152174, 9-6-19 at 2). The court awarded her front pay and benefits in the amount of $461,278.The verdict and judgment led to the usual post-trial motions.
UMD moved for judgment as a matter of law, a new trial, and remittitur. Miller moved to obtain an award for attorneys’ fees and to amend the judgment by asking for pre- and post-judgment interest to cover the four years between her termination and the beginning of trial.
Judgment as a Matter of Law: The court denied UMD’s motion for judgment as a matter of law. That remedy is only 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”(Id. at 3). Thus, unless the evidence points in the opposite direction of the judgment, the motion should be denied.
UMD raised several reasons as to why the court should enter that judgment. UMD argued that the decision to not renew Miller’s contract was not an adverse employment action but rather was due to dissatisfaction with her performance given her high salary. Yet Miller was a world-class hockey coach in Division I women’s hockey and her record surpassed that of her male counterpart. In light of her extensive achievements, a reasonable jury could have inferred that UMD’s reasons for not renewing her contract were pretextual. The court rejected UMD’s argument and found that the real motivation for the decision was discrimination and retaliation.
Miller presented evidence to demonstrate that Berlo and Black repeatedly favored the men’s hockey team over the women’s team. UMD argued that their reasoning for terminating her was performance. Miller’s male counterpart was Scott Sandelin. At the time of Miller’s termination, her overall coaching record was stronger than Sandelin’s, yet his salary was higher and his contract was renewed, which sheds light on UMD’s claim of financial hardships. By the December 9, 2014 meeting, Miller had won five national championships and had an overall win percentage of .708. Sandelin had won one national championship with an overall win percentage of .508 (Id. at 5). At the meeting, Berlo and Black blamed their decision on budget shortfalls and blatantly denied that their decision was based on her performance as a coach. Through this evidence, the court concluded that a reasonable jury could have inferred that Miller and Sandelin’s performances had enough resemblance to question UMD’s justification for getting rid of Miller.
The ever-changing nature of Berlo and Black’s arguments became even more conspicuous when the evidence showed Berlo found it burdensome to work around powerful women. Among the evidence was Berlo’s treatment of Kathryn Martin, a former chancellor at UMD. He would constantly give her the cold shoulder for no reason. He once called Miller on game day to talk about the budget and to scold her by telling her that “she better win” (Id. at 8). He referred to another woman coach as “a pain the ass” when she raised Title IX issues (Id.). He even scheduled the event “Skate With the Bulldogs” on a day in which he knew the women’s hockey team could not attend (Id.).
UMD countered these points by coming up with yet another new argument, claiming that the decision not to renew her contract was due to Miller’s insistence on reaching a decision before Christmas. Moreover UMD stated that it was inappropriate to compare Miller to Sandelin because his contract renewal did not coincide with Miller’s. The court concluded that a reasonable jury could have regarded the timing of the contract’s renewal as insignificant if they wished.
UMD’s final argument related to the timing of her Title IX complaint. It argued that it was too remote in time to raise an inference of retaliation. Yet there was evidence that demonstrated just how irritating Berlo found Miller’s complaints. When Berlo decided to offer a meal benefit to the men’s hockey team and not the women’s, he told 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” (Id. at 10). Miller was not one to keep quiet about the inequalities and disparate treatment between the men’s and women’s hockey team. She constantly advocated for change and brought this to Berlo and Black’s attention though her complaints were typically discarded. As such, a reasonable jury could have inferred that Berlo wanted Miller gone because he could not placate her and that he used his first opportunity to retaliate.
The permissible inferences that could have been drawn by a reasonable jury could have favored either Miller or UMD. The court therefore denied judgment as a matter of law in favor of UMD.
New Trial: UMD moved for a new trial on three separate grounds: weight of the evidence, evidentiary errors and closing arguments. UMD argued that there were errors on each ground and thus a new trial should be granted.
Weight of the Evidence: The court did not find that the weight of the evidence was grounds for a new trial. “[A] court should only grant a new trial to avoid the miscarriage of justice” (Id. at 12). The evidence presented could have led reasonable minds to differ as to the inferences drawn and concluded that the jury was justified in finding that UMD discriminated and retaliated against Miller. There was thus no miscarriage of justice.
Evidentiary Errors: UMD argued that there were trial evidentiary errors and that had certain evidence been excluded, the outcome of the trial would have been different. Specifically, it argued that the following misled the jury: “(1) the 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” (Id. at 13). UMD had the burden of showing that the evidence “prejudicially influenced the outcome of the trial” (Id.) but the court found that UMD had not met its burden.
Evidence is relevant is if it “has any tendency to make a fact more or less probable than it would be without the evidence”, see Fed. R. Evid. 401,and it is usually admitted. The court found that the evidence of Miller’s pay as compared to Sadenlin’s was relevant in proving that Miller’s salary along with her coaching performance was not the reason for her termination. His salary also made questionable UMD’s claim that it was facing financial shortfalls. As to the second point, the court found that evidence of industry-wide discrimination against female coaches was relevant in that it exposed the jury to the impact of Title IX. Additionally, the court found that evidence of complaints by Miller of sexism and inequalities was relevant to show that UMD was using a pretext to justify their decision. Finally, evidence of the athletic department’s finances was relevant in showing UMD’s pretext of not being able to afford Miller’s high salary, allowing the conclusion that the evidence pointed towards UMD’s pretextual reasoning for terminating Miller in the effort to conceal its true motivation.
Closing Arguments: Finally, UMD argued that a new trial was warranted based on the supposedly inflammatory closing arguments made by Miller’s attorneys. Specifically, UMD pointed to the “me too” movement when counsel said, “Women are saying that’s enough, no more, me too, time is up to bias and discrimination” (Id. at 17). The court disagreed. A new trial should be granted only if the “statements are plainly unwarranted and clearly injurious… and unfairly influence a jury’s verdict” (Id. at 18). The court stated that a vague reference to the “Me Too” movement underscored Miller’s courage in bringing this lawsuit, standing up for herself, and fighting back against the continuous undermining of women in the sports industry.
Remittitur: UMD argued that the award of $3 million was grossly excessive and that she should have been awarded no more than $100,000 in past non-economic damages given that this was an employment case. Miller, UMD argued, did not deserve so much money simply for being terminated.
However, this was not a garden-variety employment case and Miller was not a typical employee. She had been the head coach of a Division I hockey team who started the program from scratch and paved the way for the team’s success. Her entire life was dedicated to the success of her team and she regarded the program “as her baby” (Id. at 30). She turned down other job offers because she was faithful to her team. After being terminated she became depressed as her world fell apart. The news went public so the entire Division I hockey community found out about her termination. Consequently, she found it difficult to find another comparable job. The court recognized that she was not a typical employment plaintiff and could not be compared to other employment plaintiffs.
Miller raised two Eighth Circuit decisions that 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) to show that the jury’s verdict was fair (Id. at 21). This time, the court agreed with UMD. The court stated that the cited cases had no resemblance to Miller’s. The Ondrisek plaintiffs had been raised in a religious cult, they were subjected to “repeated ritualistic and savage beatings; forced unpaid labor; denial of food, denial of formal education and complete isolation from the outside world” (Id. at 22). In Rustenhaven, the plaintiff was a plane-crash survivor who was left with extreme and permanent physical impediments as well as cognitive deficits. Multi-million-dollar awards were justified because both plaintiffs suffered extreme physical torture and suffering. Contrasting that with Miller, who did not claim any physical or psychological trauma, it found that $3 million was grossly excessive for an unlawfully terminated plaintiff. The court stated that the maximum amount of past noneconomic damages that the jury could have lawfully awarded Miller was $750,000.
The court then offered Miller the option of accepting the remittitur to $750,000 or to re-try the issue of past non-economic damages. Miller accepted the remittitur. UMD also pushed for a remittitur of back pay, but the court denied that request.
Fees and Interest: Miller asked the court to award her attorney’s fees. She had two law firms that worked on a contingency (Id. at 42). The firms spent three years preparing for her trial and had to decline other cases. UMD objected to the rates, perceiving it as excessive. However, the court found that given counsels’ exceptional skills and years of experience, the hourly rates were reasonable. Further, the court found that in juxtaposing those hourly rates to attorneys with similar experience, expertise, and reputation, the rate was comparable.
UMD argued that Miller’s lodestar calculation was also excessive. The lodestar method multiplies the number of hours reasonably spent on the case by a reasonable hourly rate. Miller sought $2,434,143.94, which represented 6,447 hours, including attorney and paralegal work. The firms reduced the number of hours claimed to offset any duplicative or unnecessary work. The court agreed that this was reasonable as this case “generated nearly 700 individual docket entries, involved extensive and voluminous discovery, substantial pretrial motion practice, an eight-day trial, a post-verdict motion regarding front pay, and substantial post-judgment motion practice” (Id. at 48). The court therefore declined to further reduce the claimed hours.
Miller also sought an enhancement on the lodestar calculation based on her attorney’s outstanding accomplishments the case. She argued that it was warranted given that her attorneys “fronted significant costs with no guarantee of repayment” (Id. at 54). However, the court found that an enhancement was not warranted, holding that the lodestar figure was reasonable and it accounted for their endless efforts and long hours. Additionally, since the court allowed the law firms to retain their high hourly rates, an enhancement would have been excessive.
Finally, Miller asked the court for $99,445.55 for expenses associated with her case including travel and out-of-pocket expenses. Unsurprisingly, UMD objected. It asserted that the billable hours “reflect[ed] overstaffing, unnecessary retention of California counsel, and expenses related to an unsuccessful motion to compel” (Id. at 56). The court overruled UMD’s objections and allowed Miller to recover the requested expenses.
The court then entered an amended judgment, awarding Miller damages of $1,956,110; prejudgment interest of $71,529.14; $31,417.81 post-judgment interest; attorneys’ fees of $2,327,772 and $99,445.55 in non-taxable expenses (Miller, Amended Judgment in a Civil Case, 9/30/19).
All three plaintiffs promptly filed a notice of appeal in the Eighth Circuit, appealing the dismissed federal and state law claims. A day later, Miller and the University agreed to settle all of Miller’s federal and state law claims for an undisclosed amount (Startribune.com, Brooks Johnson, “UMD, former women’s hockey coach reach settlement” 10-8-19).
This case was perceived as a huge win for Miller specifically and women in the sports industry generally. It is admirable that Miller could withstand the heat of litigation battle for four years while not working. She was the victim of a societal flaw that has yet to be suppressed. For the other two coaches, the battle goes on. Such cases remain an up-hill battle. Only time will tell how many more “Miller” cases it will take to create equality in the sports industry.
Ms. Valencia received her B.A. from UCLA and is a full time 3L student at Southwestern University School of Law in Los Angeles, is a law clerk at the Legal Aid Foundation of Los Angeles and an advanced student in Southwestern’s Removal Defense Clinic.
Birren is the former general counsel of the Oakland Raiders and is an adjunct professor of law at Southwestern.