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Coach Shannon Miller prepares to fight back against UMD

Minnesota Duluth women's hockey coach Shannon Miller shouts instructions to her players during a game against Ohio State on Feb. 20, 2015 in Duluth. (Bob King / rking@duluthnews.com)2 / 4
UMD women’s hockey coach Shannon Miller talks to her team and coaches during a recent game against Ohio State. (Bob King / rking@duluthnews.com)3 / 4
Assistant coaches Laura Schuler (left) and Gina Kingsbury (right) share their pleasure with UMD women’s hockey coach Shannon Miller after the team scored a goal against Ohio State in a recent game at Amsoil Arena. (Bob King / rking@duluthnews.com)4 / 4

Shannon Miller, the only head women’s hockey coach the University of Minnesota Duluth has ever known, begins her final homestand tonight after 16 seasons with the Bulldogs.

She isn’t leaving by choice, and she isn’t leaving quietly after the university decided it would not renew her contract beyond this season.

Despite her 382 wins, 10 NCAA Division I tournament appearances, seven Frozen Fours and record five national championships, Miller told the News Tribune, her program still isn’t being treated equally to the UMD men’s hockey team. She said the decision — which the university said stemmed from Miller’s salary and the team’s recent performance — was just the latest example of a long pattern of discrimination because of her gender and sexuality.

“All I know is what I’ve gone through in the last 15 years working in the UMD athletic department,” Miller, 51, said Wednesday from her office in Amsoil Arena. “I know how I’ve been treated. I know why I had to go to HR on many occasions. I know why I had to contact the administration on many occasions.

“Discrimination rears its ugly head in many forms, and I feel I have been discriminated against because I’m a woman. I feel I have been discriminated against because I’m gay.”

Miller declined to provide specific examples of that discrimination, aside from noting what she believes are violations of Title IX, the federal law that bars schools that receive federal money from discriminating based on gender. The UMD men’s hockey program employs a full-time director of hockey operations while the women’s is part time. Miller also said she believes she should be paid as much as men’s coach Scott Sandelin, who has one national championship compared to Miller’s five.

“The men’s coach and women’s coach, we have comparable jobs. We do the same thing,” Miller said. “We’re doing the same job. I have a great deal more success than he has.”

She has assembled a legal team to investigate whether UMD athletic director Josh Berlo and Chancellor Lynn Black — who both declined comment for this story — are in the wrong.

One of Miller’s attorneys, Justi Rae Miller, said the legal team is anywhere from two to six months away from filing a lawsuit against UMD. Before that can happen, they would need to file a complaint with the Equal Employment Opportunity Commission and Minnesota Department of Human Rights. Another of Shannon Miller’s attorneys, Dan Siegel, said the team is in the process of doing so.

UMD’s reasoning

When UMD announced in December that Miller’s contract would not be renewed, Berlo said it was strictly a “financially driven decision” because of the university’s $6 million budget shortfall. Several weeks later, Black said there were “other considerations as well” that led to the end of Miller’s tenure at UMD, but refused to expand on those considerations. The school also declined to renew the contracts of Miller’s assistant coaches.

On Tuesday, after a media circus that included the New York Times and ESPN; Campus Pride suspending UMD’s LGBT-friendly designation; and a Feb. 20 letter signed by 13 Minnesota state senators and later Gov. Mark Dayton asking for “further information on the reasoning behind the termination,” Black elaborated on the “other considerations,” keying on a decline in the program’s performance.

The Bulldogs haven’t won a national title since 2010, reached the NCAA tournament since 2011 and are 7-36-8 against top rivals Minnesota, Wisconsin and North Dakota dating to the 2011-12 season.

“The decision to not extend Coach Miller’s contract had nothing to do with gender or sexual orientation,” Black wrote in his response to the senators. “We are grateful for Coach Miller’s work in building the program and proud of the national championships she and her teams earned at UMD. However, recently the team has not achieved competitive success at the same level.”

Miller’s legal team

Miller was never offered a new contract at a lesser salary, something that both Berlo and Miller acknowledge.That doesn’t sit well with the original member of Miller’s legal team.

“It is shocking to see someone of Shannon’s reputation, ability and achievement in winning five national championships terminated … without the opportunity to negotiate when the reason provided is her salary,” said Justi Rae Miller, of the Minneapolis-based Berens & Miller law firm.

Justi Rae Miller, a former NCAA athlete and coach who has represented other Division I college coaches, represented Shannon Miller when her program was investigated in 2008 and 2009 for secondary NCAA violations. She is now being joined by Siegel, of Siegel & Yee in Oakland, Calif. Siegel, a trial and appellate attorney, is a nationally known civil rights attorney specializing in employment and labor law involving university faculty and coaches.

In 2007 and 2008, he won a combined $29 million in four cases involving three female Fresno (Calif.) State University coaches and a female associate athletic director. Two of the four cases involved coaches who were fired in part because they advocated for gender equality and equal treatment of female coaches and athletes. They were two of the largest Title IX judgments — $19.1 million and $5.85 million — ever handed down.

“It’s just superficial, but there are some similarities between (Shannon Miller’s) situation and the situation at Fresno State where there seemed like a concerted effort to eliminate coaches — women coaches — people who were perceived to be gay or lesbian and who had a history of standing up for the rights of their players for equal university services and funding,” Siegel said.

“Title IX protects a coach from retaliation for attempting to achieve equal services and benefits for the team members. There is a Title IX claim here.”

Title IX considerations

The federal law prohibits discrimination on the basis of gender, but it doesn’t require equal spending on women’s and men’s sports. And while it requires that male and female athletes receive equal provision of resources such as equipment, practice times, travel per diems and facilities, it also recognizes that some sports require more operational funding than others.

UMD provides similar resources for the two programs, but they have drastically different operational revenue.

According to numbers provided by the University of Minnesota system, the expenses for the UMD women’s program were $1,538,916 in 2013-14, but only $108,016 of that was offset by gifts and income for a difference of $1,430,900. That same year, the men’s program incurred $2,117,344 in expenses and brought in $1,704,786, a deficit of $412,588.

For 2014-15, UMD’s budget projects the women’s hockey team will cost $1,594,982 and bring in $116,000 (a difference of $1,478,982), and the men’s team will cost $2,027,875 and bring in $1,788,830 (a difference of $239,045).

But Title IX helps ensure equal resources for men’s and women’s teams without regard to the revenue those programs generate.

“We don’t parcel out educational opportunities based on revenue,” said Neena Chaudhry, senior counsel and director of equal opportunities in athletics for the National Women’s Law Center. “The law doesn’t allow that.”

Nicole LaVoi, associate director of the Tucker Center for Research on Girls and Women in Sport at the University of Minnesota, has heard the argument from critics that the women’s hockey team doesn’t make money.

However, about 95 percent of all college athletic teams in the country fail to make money, she said. All 14 of UMD’s NCAA programs — men’s and women’s hockey in Division I, the rest in Division II — lose money on a yearly basis, with football losing the most, $936,637, among the Division II programs and tennis losing the least at $27,897.

If there was an expectation that college teams earn enough money to pay for themselves, LaVoi said, “most of the teams would go away.”

It’s also possible for student-athletes to bring a Title IX suit. Members of the Bulldogs women’s hockey team could sue the university for not offering Shannon Miller another contract if the person hired to replace her isn’t as qualified.

Berlo has said the next UMD women’s hockey coach won’t make as much as Miller or her counterparts at Minnesota and Wisconsin; he said the next coach will be paid more in line with recent hires at Bemidji State and St. Cloud State. Each of those coaches’ 2014-15 salaries is less than half of Miller’s current salary.

Student-athletes have filed suit against schools in such coaching situations, Chaudhry said.

“The question is, what’s the impact on the athletes?” she asked.

Other legal options?

Title IX is not the only issue at play, Chaudhry said. Miller’s potential lawsuit may also be about Title VII or the Equal Pay Act.

Title VII relates to employment discrimination, such as men and women receiving different pay for the same job. It’s something Siegel is looking into with Miller’s case.

While Miller is the highest-paid women’s college hockey coach in the country at $207,000 for the 2014-15 season, the contract for Sandelin, the UMD men’s head hockey coach, calls for him to make $265,000. For Title VII to apply, Siegel said, Shannon Miller would have to prove she and Sandelin are being paid differently for doing the same job, while the university would have to justify why the difference in pay is not gender-based.

“In any type of employment case, there’s certain types of factors you look for, and it’s unlikely that you’d find them all in one particular case,” Siegel said. “First of all, you’d look at, ‘Is the employee an employee with a good record?’ If you’re talking about coaches, what does the wins and losses look like?

“Then you would look for in the particular institution, their history of treating female coaches differently than male coaches, which was something we had at Fresno and so far haven’t seen at UMD, although I think the decision to not only let Shannon go but fire all her assistants is something that makes it start to look like a pattern.

“Then you’d look at the issue of what is the history of hostility or disagreement within the athletic department.”

How will this end?

If Miller does in fact file a Title IX discrimination suit against UMD, history shows such cases “have not typically gone favorably for the institution,” LaVoi said.

“Ironically, if Duluth was trying to save money because they couldn’t afford Shannon, if they have to fight a Title IX gender lawsuit, it’s going to cost them a lot more money than paying them what she was worth,” LaVoi said.

UMD has beaten a Title IX lawsuit before. In 1999, a federal judge dismissed two gender equality lawsuits brought against the University of Minnesota by four UMD female athletes who claimed the university violated Title IX by funding men’s programs at a higher level than women’s programs. The addition of women’s hockey in 1999 was cited as one of the reasons the cases were dismissed.

“In UMD athletics, we are fully committed to Title IX and the principles of the Minnesota Human Rights Act,” Black wrote this week in his response to the lawmakers’ letter. “We are committed to women’s athletics and the UMD Women’s Hockey program achieving excellence in the classroom, community, and competition.”

Miller said she doesn’t believe UMD is committed to women’s hockey. While Black in his letter called Minnesota, Wisconsin and North Dakota the Bulldogs’ “closest competitors,” Miller said she’s been repeatedly told for the past six years — when she asked for resources those women’s hockey teams have, such as a full-time director of hockey operations and summer school scholarships — that the Bulldogs are not the Badgers, Gophers or North Dakota. Instead, she said, administrators have told her, “We are Mankato, we are St. Cloud” — smaller schools with fewer resources.

“I don’t think he understands what’s going on,” Miller said about Black. “It blows my mind.”