Shannon Miller: Discrimination victim? Or an overpaid college coach?
City Pages, Thursday, March 15, 2018 by David Clarey
On December 9, 2014, University of Minnesota Duluth’s women’s hockey head coach Shannon Miller was informed her contract would not be renewed.
At the time, it was reported that Miller was open to taking a pay cut. With a salary of over $200,000 a year, she’d been the highest paid women’s hockey coach in the country.
The university’s reason for cutting Miller from its staff would shift over the following months. Publicly, the explanation would go on to include a mediocre win-loss record in Miller’s stint at the school, her inability to beat rival teams, and the high cost of her services, per win, relative to her salary.
Miller, the university’s first head women’s’ hockey coach, was forthcoming about her thoughts on the matter. In interviews with media she stated flatly she was the victim of discrimination, based on various factors including gender and sexual orientation. She sued.
Miller’s lawsuit alleges the university declined to renew her contract due to her sex, and as a retaliation to her complaints of inequitable treatment of its women’s sports programs.
On Thursday, after seven days of testimony, Miller’s federal case will be put to a jury, which will decide if the university subjected her to discrimination under federal Title VII and Title IX laws. Title VII outlaws workplace discrimination based on sex, and Title IX prohibits sex discrimination in educational settings.
“We feel good about the evidence, and the way it’s gone in,” says Dan Siegel, lawyer for Miller. Throughout the trial, Siegel and Miller’s legal team has attempted to dismantle the school’s various defenses, questioning the extent of the financial straits the school faced, and trying to pick apart athletic director Josh Berlo’s qualifications for the job.
The university declined to comment for this story, citing “respect for the jury process.”
Miller claims she repeatedly reported the discriminatory work environment in the athletic department to Lendley Black, University of Minnesota Duluth’s chancellor, and the human resources department, and says no action was taken.
Miller’s Title VII claims center on disparities between the men’s and women’s programs, and the retaliation she faced for it. She claims that for many years the men’s team had an unlimited recruiting budget, while the women’s team was capped at around $30,000; the men’s team received funding for additional May and summer term scholarships, while the women’s team did not; and various administrative personnel for the women’s team had dual roles, or were part-time, while the men’s team had full-time positions.
Miller’s Title IX complaint centers around a perceived retaliation by the university to her complaints, which ultimately resulted in her firing.
In the school’s legal response to Miller’s lawsuit, it states, “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.”
The university’s defense includes a “return-on-investment” analysis, where the school compares the amount Miller was paid per win to other premier women’s hockey programs, and their win-loss record in recent years. In a legal brief, the school outlines that Miller received $13,947.37 per win since 2010, compared to $3,960 for University of Minnesota coach Brad Frost, and $5,000 for the University of Wisconsin’s Mark Johnson.
Miller’s team contests her alleged under-performance was properly communicated to her. “This was never discussed,” Siegel says. “Everyone always said to her, ‘You’re doing great, we just can’t afford it.’”
The decision to characterize Miller’s termination as financial, Duluth claims, was in part due to her request. The school’s brief says that on Dec. 16, 2014 UMD’s legal team messaged Miller’s stating, “As Coach Miller knows, she specifically requested that language, presumably to avoid the suggestion that performance played a role in the decision … The decision was in fact made for a number of reasons, including an analysis of Coach Miller’s performance and compensation in comparison to other NCAA Division 1 women’s hockey coaches…”
In desposition testimony, Siegel pressed Berlo on this “return on investment” methodology; Siegel says Berlo admitted it was something he invented specifically for assessing Miller’s performance.
The email, Siegel said, was part of a “re-spin” of their messages over this. “I think the university has been in denial of this, and doing everything they possibly can to confuse,” he says.
Miller’s complaint contends Berlo had told Miller in various meetings the firing was not due to performance reasons, or financial; her team argues those reasons were offered only after the fact.
Beth Bertelson, a lawyer specializing in employment discrimination at Bertelson Law Offices in Minneapolis, says any defense consisting of a comparison of Miller’s performance at Duluth to other schools is suspect, because the school has no control over what other universities offer.
Bertelson isn’t taking the school’s claims at face value, and finds UMD’s shifting explanations over time to be “very good” for Miller.
“Changing reasons can be demonstration of pretext, or can be demonstration of false reason,” Bertelson says, adding: “What really has to happen is you have to look beyond that reason, and say ‘Is that the true reason?’ Or is it motivated beyond that by implicit bias or [discrimination]?”
Cases like Miller’s have found more traction since 2005, when the U.S. Supreme Court ruled in Jackson v. Birmingham Board of Education that retaliation due to complaints over sex discrimination is covered under Title IX.
“[It] kind of reminded everyone that Title IX is there for college coaches,” says Erin Buzuvis, a professor and director of the Center for Gender and Sexuality Studies at the Western New England School of Law.
She calls Miller’s termination a “particularly egregious offense from the outset,” and has used the case as an example for showcasing the “double binds” that female college coaches tend to be in. Often, she said, female coaches are put in positions where they need to perform better than their male counterparts to maintain their jobs, but receive fewer resources to do so.
“In Title IX, in general, you have an obligation to the treat the two programs equally,” she said. “This argument about … ‘return on investment’ … seems to be an obvious example to providing an excuse for [discrimination.]”
Buzuvis says Miller’s lawsuit parallels a 2007 California State University case, which resulted in a women’s basketball coach receiving a record $19.1 million after she was fired due to advocating for women’s rights, Buzuvis said.
The lead attorney on that case was Dan Siegel, the same one representing Shannon Miller; for his part, Siegel says similarities between the two lawsuits are largely “superficial.”
The jury makeup for Miller’s trial is eight women and four men, though Buzuvis said that shouldn’t be counted as a positive factor for the coach. “I think sometimes women have the capacity to be just as harsh as men can be on these types of cases.”
On the ice, Miller’s run as a head coach had its ups and downs. In her first four years, Miller’s teams made it to the NCAA tournament, and won three championships.
She would go on to make it to six more tournaments, and win two more national championships, in 2008 and 2010. A year later, the Bulldogs lost in the NCAA quarterfinals. UMD then missed the tournament four years in a row.
Miller is still one of the most accomplished coaches in women’s collegiate hockey history, with five national championships and seven Frozen Four appearances. She also won a silver medal as Canada’s head coach in the 1998 Winter Olympics.
To some, Miller’s importance carried beyond successful coach to community pillar. Miller’s fifth title in 2010 was honored by the city’s recognizing “Coach Shannon Miller Day.”
Her lawyers say things changed after the school hired Berlo as athletics director in 2013.
Miller’s 2015 termination set off something of an exodus of lesbian employees. Jen Banford, former softball coach and women’s hockey director of operations, and Annette Wiles, the former women’s basketball coach, both left. They too alleged the university discriminated against them for age, sex, sexual orientation, and national origin; however the judge hearing the case, Patrick Schiltz, tossed their claims, and narrowed the civil action to Miller’s complaint.
Angie Nichols, founding director of the Minnesota-Duluth’s Gay Lesbian Bisexual Transgender Services, also resigned around the same time, and claimed she was asked to help respond to bad publicity from the Miller firing. The school had been taken out of the rankings of Campus Pride, an advocacy organization that rates colleges based on their LGBT-friendliness.
In dismissing the claims of Banford, Miller, and Wiles, Judge Schiltz said their claims of discrimination could be pursued in state court.
The firing brought state pressure and national attention to the university. Opinion columns in the Boston Globe and the New York Times covered the firing, while state senators and Gov. Mark Dayton asked the university to provide a more thorough explanation for Miller’s termination.
A 2010 study done by Paul Holmes, an associate professor of business and economics at Ashland University, found that college football head coaches often face higher expectations after early success.
“If it looks like someone has switched from winning [early on] to losing [recently], it seems like in college particularly, this is risky,” he said.
Failure to meet those expectations often leads to a firing. Holmes’ study also found that a new athletic director typically hires new coaches a year after being hired.
Of course, Miller’s claims raise issues that don’t typically surface in the world of college football.
In the three years since Miller’s firing, the Duluth women’s hockey team has reached the NCAA tournament once, losing in the first round. The other two years, the team posted losing records.