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Shannon Miller v. UMD: Long-awaited discrimination trial starts this week

Shannon Miller, head coach of the University of Minnesota Duluth women's hockey team, reacts in December 2014 to the news that her contract was not being renewed after that season. Forum News Service file photo

DULUTH—The time has come for Shannon Miller and the University of Minnesota Duluth.

More than three years after the school announced it would sever ties with its five-time championship-winning women's hockey coach, sparking controversy and a federal lawsuit, a jury will finally have its say.

Miller's high-stakes discrimination case against her longtime employer goes to trial this week at the federal courthouse in Duluth. Jury selection will start Tuesday, March 6, with a verdict expected next week.

U.S. District Judge Patrick Schiltz, a Duluth native, is presiding over the case.

Here's a look at the lawsuit and how the trial will unfold:

How did we get here?

UMD announced in December 2014 that it would not renew Miller's contract after 16 seasons, citing a tough financial climate. Later, facing public pressure, officials said Miller's job performance also played a role in the decision.

Miller in September 2015 filed the lawsuit alongside Jen Banford, the former softball coach and women's hockey director of operations, and Annette Wiles, the former women's basketball coach — both of whom resigned in the months after the Miller announcement. The three women alleged discrimination on the basis of age, sex, sexual orientation and national origin.

Schiltz last month issued a summary judgment order significantly narrowing the scope of the case, tossing out a number of the claims due to a lack of evidence or jurisdiction. Notably, he dismissed all counts pertaining to Banford and Wiles.

Which issues remain?

The two surviving claims from Miller are sex discrimination and retaliation.

Title VII of the Civil Rights Act of 1964 makes it illegal for employers to discriminate against workers on the basis of sex. Schiltz said Miller presented sufficient evidence for a jury to determine whether:

• Men's hockey coach Scott Sandelin had his contract renewed despite comparable, or worse, performance.

• UMD applied different criteria in deciding to renew Sandelin's contract.

• Administrators involved in the decision to not renew Miller's contract offered inconsistent explanations.

• UMD's financial situation was not as dire as officials claimed.

• The school did not ask Miller to take a pay cut in lieu of termination or pursue funds from donors who expressed interest in supplementing her salary.

Title IX, instituted in 1972, is the federal law that prohibits sex discrimination in educational settings. The judge, in his summary judgment ruling, noted that Miller had routinely complained about alleged disparities between men's and women's athletics during her tenure, providing sufficient basis for a jury to determine whether she was retaliated against for such actions.

What will Miller argue?

Miller will describe a sexist working environment at UMD, where she says she was subjected to unfair treatment and hate mail, with administrators failing to take action to address her complaints.

She claims that after months of contract discussions, she was informed by Chancellor Lendley Black and Athletic Director Josh Berlo that she would not receive an extension due to financial concerns. She says she was pressured to resign or retire, but refused.

Miller's attorneys will point to UMD changing its story multiple times over the ensuing months, adding factors such as a lack of competitive success, high cost per win and her failure to beat the University of Minnesota in recent years.

The attorneys will argue that Miller was one of the most successful hockey coaches in the world — leading Canada's 1998 Olympic silver medal team, winning five NCAA titles in seven Frozen Four appearances and becoming the first coach in Division I women's hockey to reach 300 victories — but that she was paid less for her work than Sandelin, who held similar duties while amassing a less-successful career.

"I think Shannon and I are both very excited and eager to start," said Dan Siegel, an attorney for Miller. "I'm a confident person, and so is Shannon, and we feel confident that we have a good case."

What will UMD argue?

UMD will contend that, while Miller enjoyed great success early in her career, her performance dropped off significantly in the years before her contract was not renewed.

The university will tell jurors that Miller wanted a contract extension through 2017, after which she would step away, but Black and Berlo were concerned about her team's on-ice performance, academic issues, an increasing number of players leaving early and the size of her contract given budgetary issues.

They note that Miller's team failed to make the NCAA playoffs in her final four seasons and that she was paid far more per win than the women's hockey coaches at Minnesota and Wisconsin during that same period.

The university argues Black and Berlo, out of respect for Miller, agreed to characterize the decision as a financial consideration. They say the additional factors were only publicly disclosed after Miller and her supporters were critical of the decision.

"The evidence will show that Miller's sex played no role in the university's decision not to offer her a new contract, nor did her complaints about what she perceived as unequal opportunities afforded to the student-athletes of women's hockey and men's hockey," university attorneys wrote in a recent brief.

What is the trial process?

A final pretrial hearing is slated for Monday, at which time Schiltz will hear arguments on a number of motions related to potential witnesses and evidence.

Jury selection will begin Tuesday morning, with the judge conducting the questioning. Attorneys have suggested he ask potential jurors about their ties to UMD, whether they attend games or follow Bulldogs athletics, their familiarity with Miller and the high-profile case, and their experience and opinions regarding workplace discrimination.

Opening statements could be held as soon as Tuesday afternoon. Witness testimony will make up the bulk of the trial, and is expected to continue into early next week.

Schiltz has given each side a total of 20 hours of "jury time" throughout the course of the trial, so attorneys should deliver closing arguments and send the case to jury deliberation no later than Wednesday, March 14.

Who will testify?

Miller, Berlo and Black are prominent figures among the 40 potential witnesses whose names were jointly submitted by the two parties.

Sandelin, whose program will draw comparisons to Miller's throughout the trial, is on the list. So is Maura Crowell, the coach hired to replace Miller on the women's team in 2015. Berlo's predecessor, Bob Nielson, and Black's predecessor, Kathryn Martin, are also among the potential witnesses.

Several of Miller's former players — Zoe Hickel, Meghan Huertas, Jamie Kenyon, Jenna McParland and Julianne Vasichek — are on the list, as is Gina Kingsbury, a former assistant coach.

Both parties also have included expert witnesses who may testify, if permitted by the judge, about the landscape of women's athletics nationally and at UMD, as well as Miller's job performance, employment prospects and alleged economic losses.

What damages are in play?

Miller will seek monetary damages for alleged past and future losses, including wages and benefits, reputation and emotional distress. Just how much she will seek remains to be seen.

More than two years ago, the plaintiffs filed a brief arguing that they were entitled to approximately $18 million in damages — including $8 million for Miller. However, the scope of the case has significantly narrowed since that time, and she is now facing the federal trial alone.

The plaintiffs have not placed a revised figure on damages. Siegel told Forum News Service that it will depend on how the trial plays out.

"It's not a question of being coy," he said. "I never decide that until shortly before it's time to ask. It depends on how things feel."

UMD, for its part, has argued that there are limitations on the amount Miller could be awarded, "in the unlikely event the jury finds in (her) favor."

Will this settle the case?

No. In addition to the potential for an appeal of the verdict from either side, a separate legal battle is set to ensue in state court.

Miller, Banford and Wiles are expected to file a suit alleging discrimination on the basis of sexual orientation, in violation of the Minnesota Human Rights Act. Schiltz last month dismissed that issue from the federal case, calling it the "strongest" element the plaintiffs have but saying he lacked jurisdiction to hear it.

Siegel said the plaintiffs are prepared to move ahead with the state case but are not able to file until there is a final judgment issued by the federal court, which will not occur until some time after the trial.

Meanwhile, the university said it would continue an aggressive defense at the state level.

"These plaintiffs do not have a legally viable state court option," said Tim Pramas, senior associate general counsel. "The University of Minnesota Duluth will bring a motion seeking prompt dismissal of any state court lawsuit."

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