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Judge urges common ground in UMD discrimination lawsuit

Former UMD women basketball coach Annette Wiles, softball coach Jen Banford and hockey coach Shannon Miller announce a lawsuit against the Board of Regents of the University of Minnesota at the offices of their attorneys in Eden Prairie, Minn., in September 2015. Two of their lawyers are Dan Siegel (far left) and Donald Mark Jr. (far right). Richard Tsong-Taatarii / Minneapolis Star Tribune

A judge urged attorneys to find common ground while hearing arguments Thursday on several pretrial issues in the discrimination lawsuit filed against the University of Minnesota Duluth by three former women's sports coaches.

Former women's hockey coach Shannon Miller, former softball coach Jen Banford and former women's basketball coach Annette Wiles are seeking $18 million in damages from the university, alleging discrimination on the basis of age, gender, sexual orientation and national origin. The school is denying the allegations.

Magistrate Judge Leo Brisbois spent about an hour conferring with attorneys on both sides during a hearing in U.S. District Court in Duluth.

While the attorneys told the judge that they have been able to resolve the majority of their evidentiary disputes, disputes still remain over certain business and employment records that are sought by either side.

Among them are the financial details of Miller and Banford's startup business in California and detailed breakdowns of fringe benefits received by other coaches at the school.

Jeanette Bazis, a Minneapolis attorney hired by the university, argued that Miller and Banford are concealing financial records pertinent to the school's defense of the plaintiffs' wage-loss claims.

Miller and Banford late last year started Sunny Cycles, a pedal-pub business geared toward tourists in Palm Springs, Calif., where they are now living.

While all three plaintiffs have agreed to turn over personal tax returns, Miller and Banford have declined to turn over business records for their new venture. They have stated that the business only covers internet, phone and car payments, and that requests for further financial information amounts to an invasion of privacy.

Bazis argued Thursday that they forfeited that right to privacy when they filed the lawsuit. She noted that the company is owned and operated solely by Miller and Banford.

"Personal tax returns don't get to the issue of what money they might have sitting in that business that they have the right to distribute to themselves but choose not to," she said.

Tyler Brimmer, an attorney representing the three former coaches, called the request "intrusive."

"Our position is that this non-party should not be required to provide all these documents," he said.

Brisbois pressed Brimmer on the issue, noting that potential income earned through the company is central to the defense of the lost-wages claim.

"All assets of the business belong to your clients," the judge said. "There is no third-party being asked to produce documents."

The university's attorneys are also seeking an order requiring all three plaintiffs to undergo a two-hour interview with a vocational rehabilitation expert, who would assess their "employment potential and their employment market and opportunities."

Brimmer contested that the use of a vocational expert is typical in personal injury cases — such as those resulting from car crashes — and not in a discrimination case.

Meanwhile, he asked Brisbois to order the release of more detailed employment records on the remaining coaches at UMD.

The plaintiffs have argued that the salary and benefits offered to other coaches at the school is central to their claims that men's and women's teams were treated unequally.

Tim Pramas, the university's senior associate general counsel, said the request for detailed fringe benefit information is not only "very burdensome" but also irrelevant to the case.

"All (coaches) have the same menu of benefits that they choose from," Pramas said. "It's the same value for everyone."

But Brimmer argued that it's necessary to be able to compare similarly situated coaches to assess inequalities.

"My concern is that this is a Title IX case," Brimmer said. "This is an institution-wide analysis of whether or not the university is complying with federal law for women's sports."

Brisbois took the motions under advisement, but encouraged the parties to work together to see if they could reach compromises. He said he hoped to rule by late December.

Attorneys said most discovery has been exchanged, and they're moving toward depositions of the plaintiffs, school administrators and experts. The three former coaches are set to be deposed by the university's attorneys in Minneapolis in December and January.

Miller, who led the women's hockey program to five national championships in her 16 years as head coach, was informed in December 2014 that her contract would not be renewed.

Banford was informed at the same time that she would not be brought back as the team's director of hockey operations; she later rejected a one-year contract offer from UMD to remain as softball coach.

Wiles announced her resignation as head women's basketball coach in June 2015 after seven seasons with the Bulldogs.

Miller, 53, and Banford, 35, moved to Palm Springs, where attorneys said they are still seeking employment and hoping to grow their business. Wiles, 47, moved to Kansas and began working in August as the athletic director at Topeka High School.

The plaintiffs' attorneys have demanded $8 million for Miller and $5 million each for Banford and Wiles, alleging "discrimination by an educational institution receiving federal assistance, reprisal because of their reporting of that discrimination, creation of a hostile work environment, violation of federal and state equal pay statutes, and violation of the Minnesota Whistleblower Act."

All three women are gay. Miller and Banford were born in Canada.

The university has denied that the coaches were subject to discrimination, arguing that Miller's dismissal was entirely performance-based and that the university supported and intended to keep Banford and Wiles on staff.

Brisbois instructed the attorneys to have the case ready for trial by September.

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