By Jeff Birren, Senior Writer
These pages have previously covered the litigation brought by two former coaches against the Board of Regents of the University of Minnesota. Both coaches previously sued the school. The District Court granted the Regents’ motion for summary judgment (“Summary Judgment Defeats Claims For the Second Time” (6-18-21)). Jen Banford appealed, and recently the Eighth Circuit affirmed (Banford v. Bd. of Regents, Case No. 21-2160; 2022 U.S. Lexis 21922, __ F. 4th ___; 2022 WL 3206309c (“Banford”).
Background
Banford was the University of Minnesota Duluth (“UMD”) women’s softball team head coach and the Director of Operations for the women’s ice hockey team. At the time, the head coach was Shannon Miller “who was also Banford’s live-in romantic partner” (Id. at 4). When the athletic department terminated Miller, Banford was told that she would not be retained as Director of Operations, but she could reapply for that position when the new head coach was hired. However, she was told that she could keep her position as head softball coach.
Annette Wiles was the women’s head basketball coach. She was told that she would not be retained, but the school did not take the necessary step to terminate the contract and consequently the contract was automatically renewed. Nevertheless, both Branford and Wiles resigned and sued, alleging various claims including claims for discrimination based on sex, sexual orientation, and constructive discharge. Both plaintiffs’ claims were dismissed on summary judgment, and Banford appealed.
Banford’s Appeal
The Circuit Court began by stating that even if Banford “could establish a prima facie case of discrimination” she had not met her burden of showing that the school’s “nondiscriminatory justification for renewal is pretextual.” UMD asserted that when a NCAA Division I head coach is fired, “it is typical to fire other members who work closely with them” to allow the incoming coach “to select their own staff.” The Director of Operations works more closely with the head coach than the staff members who were retained. According to the Court, this “explanation is enough to carry UMD’s burden” and consequently Banford had to “show that the justification is mere pretext” (Id.).
Banford responded that this explanation “isn’t credible” because the standard practice in Division I when “a head coach leaves is limited to firing coaching staff—not operations staff” (Id. at 5). But that was not the real question at issue here. The “only question is whether ‘cleaning house’ was UMD’s motivation.” Courts “do not sit as a super-personnel department that reexamines an entity’s business decisions.” The Court’s role is to determine “whether the employer gave an honest explanation of its behavior.” The Court stated that it was “credible that UMD would want to allow its new head coach to choose her Director of Operations” (Id.).
Banford countered that three other “similarly situated comparators” were not fired. However, at “the pretext state,” the “test for determining whether employees are similarly situated” to the plaintiff “is a rigorous one” and a plaintiff must “show that she and the employees outside of her protected class were similarly situated in all relevant respects.” The Court stated that two of the three could not be “used as comparators” because the Athletic Director “knew that they were gay, so they weren’t outside of Banford’s protected class.” The third proposed comparator’s “duties were different” as she was responsible for strength and conditioning while Banford oversaw operations. This position “requires significantly more cooperation with the head coach than the trainer position, which is player-centered and purposefully insulated from becoming too responsive to the head coach for the interest of player wellness.” Therefore, the two roles “were not similarly situated for purposes of the pretext analysis” (Id.).
Banford consequently failed to carry “her ultimate burden of persuading [the Court] that she was the victim of intentional discrimination.” There had been four part-time hockey staff members, three of which “were openly gay” and yet two “of those openly gay women’s contracts were renewed.” The “differentiating factor” therefore “was not their sexual orientation.”
Banford also argued that she was different from the other two openly gay staff members because “she was Miller’s live-in partner” but “being romantically involved” with a specific person “is not a protected class under Title VII” (Id., FN 4). Banford thus failed to show “that she was fired because of her sexual orientation rather than to allow the incoming head coach to appoint her own Director of Operations” (Id. at 5). With that, the Court affirmed the summary judgment order.
Conclusion
Banford undoubtedly felt incensed by UMD’s actions, but she had been offered the opportunity to remain as the women’s softball head coach. Left out of both Court of Appeals decisions is that Miller sued UMD for various causes of action, including inter alia discrimination based on gender, sexual orientation, age, and a hostile work environment. Miller’s case went to the jury, and she prevailed. She then settled with UMD for $2,102,939. Her attorneys received $2,427,218 (Shannon Miller, Wikipedia; “Court Sides with Plaintiff in Miller v. Board of Regents of the University of Minnesota,” SLA (10-25-19)). That must make Banford’s legal losses even more painful. Not only did Banford not receive damages, but she will be liable to UMD for its court costs.
Potential plaintiffs must be honestly appraised of their possible upside, but also of the potential downside. Anger is not a substitute for a prima facie case, much less a thoroughly convincing one, and counsel must acquaint clients with the risks in bringing cases.
