In Shannon Miller v. The Board of Regents of the University of Minnesota, Case No. 15-cv-3740 (PJS/LIB) (D. Minn. Sept. 6, 2019), a federal court modified and upheld a jury verdict based on a women’s hockey team coach’s sex discrimination and retaliation claims. The case offers helpful lessons for any employer.
The University of Minnesota Duluth (UMD) hired Coach Miller as its women’s hockey team coach in 1998. After several extensions, Coach Miller’s contract was to expire June 30, 2015. In December 2014, UMD informed her it was not renewing her contract.
By the time UMD decided not to renew Coach Miller’s contract, her teams won five National Championships and had an overall winning percentage of .708. By contrast, the men’s hockey team, coached by a man whose term at UMD significantly overlapped with Coach Miller’s, won one National Championship and had an overall winning percentage of .508. His contract provided a 90-day “out,” but he was not fired. In fact, his contract was renewed in 2016 despite similarities in both his and Coach Miller’s recent records.
Coach Miller sued. Her claims of sex discrimination under Title VII and retaliation under Title IX made it to jury. The jury ruled in her favor. Following court modifications, and absent additional litigation, she stands to recover nearly $4.5 Million in back pay, front pay, interest, non-economic damages, attorneys’ fees, and expenses.
*The facts described in this post are summarized from a published court decision. Nothing in this post is intended to suggest whether those facts are true or not.
The court’s opinion offers lessons that may prove beneficial to any employer:
Failing to Renew an Employment Contract Might be Actionable
Employers might mistakenly conclude that it cannot be unlawful to refuse to renew a fixed-term employment contract. After all, the whole idea is that the contract (and presumably employment) ends on a specific date. Unfortunately, the situation becomes more complicated when a contract is regularly renewed, extended, or replaced with a new contract. In such case, it is important to consider the employer’s reasons for not continuing the relationship. A jury might, as in this case, determine that the reasons were discriminatory or retaliatory.
Shifting Explanations Spell Trouble
In evaluating whether the jury’s verdict should be upheld, the court wrote the following (the emphasis is mine):
There was also robust evidence that, after Miller filed this lawsuit, UMD’s explanation for terminating her shifted from primarily budget based to primarily performance based. UMD points to evidence that it had raised the issue of Miller’s performance before it decided not to renew her contract. But UMD ignores the overall tenor of the parties’ earlier discussions, which strongly suggested that UMD would happily have renewed Miller’s contract if not for the budget problems it was experiencing. In particular, UMD ignores the tenor of the December 9 discussion at which Berlo and Black informed Miller that her contract would not be renewed. During that meeting, Miller repeatedly pushed for an explanation, and Berlo and Black repeatedly emphasized budget shortfalls and denied that their decision had anything to do with Miller’s performance. P64. At trial, however, UMD reversed course and insisted that it decided not to renew Miller’s contract because her performance had deteriorated so much in recent years that it would not have renewed her contract even if she had agreed to a drastic salary reduction.
The jury could also have found that UMD’s claim that Miller’s non-renewal was performance-based was inconsistent with UMD’s actions. If UMD was so unhappy with Miller’s recent performance that it was unwilling to keep her at any price, then why did UMD continue to suggest throughout the summer and fall of 2014 that the parties would eventually be able to reach an agreement? Alternatively, if UMD wanted to give Miller one last chance to improve her performance before making a final decision, why did it give her only half a season to improve—and then yank the rug out from under her when the team was improving (indeed, when the team was ranked sixth in the nation)?
The court determined that the jury reasonably could conclude that UMD was not telling the truth about its reasons for terminating Coach Miller based on a reasonable conclusion that UMD’s actions were inconsistent with a performance-based termination, UMD’s shifting explanations, and UMD’s decision to retain the men’s hockey team coach.
The above illustrates why it is so important to be honest with employees when giving them your (presumably lawful) reasons for terminating them. Sugar-coating the reasons, even in a genuine attempt to be nice or to avoid confrontation, can backfire. Shifting explanations can result in a jury trial, and juries may view an employer’s changing reasons with skepticism.
Subtle (and Not So Subtle) Signs of Bias Can Come Back to Haunt You
The court determined that the jury reasonably concluded that a UMD representative who was very involved in the decision to terminate Coach Miller had difficulty working with powerful women. For example:
- He objected to an email blast to alumni touting the unparalleled success of the women’s hockey team as being “in poor taste,” yet he did not object to a large billboard celebrating his own accomplishments;
- He gave the cold shoulder to a female former chancellor of UMD;
- The women’s hockey team “didn’t get a lot of love” on the UMD athletic department’s Twitter account;
- He called Coach Miller on a game day to talk about the budget (which she found quite unusual) and told her she’d “better win”;
- He described another coach who raised Title IX issues as a “pain in the a_ _”;
- Women’s hockey did not get a lot of marketing support;
- He gave a meal benefit to the men’s team and told a staff member to control Coach Miller and make sure that she focused on what she had rather than on what the men had.
Woven into a well-told story, one can see how such comments and conduct could be problematic for an employer in a sex discrimination and retaliation case.
Discrimination/Retaliation Liability Can Get Expensive
Coach Miller has been awarded the following (all numbers are rounded):
- Back pay of $745,000 from the date of termination to verdict
- Interest of $71,500 on the back pay
- Front pay of $461,000
- Emotional distress and other non-economic damages of $750,000 (the jury awarded $3 Million; the court reduced the award to $750,000, which will apply unless Coach Miller requests a new trial on such damages)
- Attorneys’ fees of $2.33 Million
- Expenses of $99,500
Juries are unpredictable. This case could have gone either way. At the end of the day, the employer ended up with an approximately $4.5 Million exposure. It would have been closer to $6.7 Million if the jury had its way on emotional distress and other non-economic damages.
The bottom line is that employers should be thoughtful about any termination that may carry risk of a discrimination or retaliation claim. Some matters to consider include:
- What reason(s) are you going to give the employee?
- Would the reasons make sense to someone outside your business? (Using this case to illustrate: Would it make sense to an outsider to fire a five-time National Championship coach for performance? Could you show you were focusing on recent performance? How will you explain the decision given the team being ranked 6th in the nation? How have you treated others for similar performance?)
- Is the reason you will give the employee consistent with the reason you would give in the unemployment comp hearing? To the EEOC? To a court? To a jury?
- Could the decision-maker’s past words or actions be construed as suggesting unlawful bias?
These are important questions. Failing to ask could be expensive.
(This post is not legal advice. Consider consulting with a lawyer about specific situations.)