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Dismissal upheld in University of Minnesota Duluth lawsuit

A seven-year legal battle appears near the end, as a federal appeals court ruled against Jen Banford's bid to revive her discrimination case.

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Jen Banford talks to the media the day after she rejected a contract offer to remain at the University of Minnesota Duluth.
Steve Kuchera / File / Duluth News Tribune
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DULUTH — A former University of Minnesota Duluth coach was not fired because of her sexual orientation, a three-judge panel ruled.

The 8th U.S. Circuit Court of Appeals on Tuesday upheld last year's dismissal of a federal lawsuit filed by Jen Banford, who served as head softball coach and women's hockey operations director.

Banford was the final remaining plaintiff in a seven-year legal battle that saw former women's hockey coach Shannon Miller receive a $4.53 million settlement after a jury's finding of discrimination and retaliation. Former women's basketball coach Annette Wiles also had her claims thrown out, but did not pursue an appeal with Banford.

Banford was notified that she was being relieved of her hockey duties after the university controversially announced in December 2014 that Miller's contract would not be renewed following 16 seasons, including five national championships. The university offered Banford an opportunity to continue as softball coach, but she declined.

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A happy attorney Dan Siegel, Shannon Miller and Jen Banford meet with media outside the federal courthouse in Duluth in March 2018 after Miller won her discrimination suit against UMD.
Steve Kuchera / File / Duluth News Tribune

The lawsuit claimed that then-Athletic Director Josh Berlo was attempting to "purge" lesbian coaches from the department. But the university maintained that it is typical for assistant coaches to be non-renewed in order to allow a new head coach to hire their own staff.

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The 8th Circuit agreed, determining that Banford "has not met her burden of showing that UMD's legitimate, nondiscriminatory justification for non-renewal is pretextual."

"Unlike the staff members who were retained, the director of operations works closely enough with the head coach to make this a material bargaining chip in recruiting a new head coach," Judge Jonathan Kobes wrote in the six-page opinion. "This explanation is enough to carry UMD's burden, so it falls on Banford to show that the justification is mere pretext."

Other gay women on the staff were retained, but the judges said they were not "similarly situated," as their duties were different and they reported to other people in the department.

"The director of operations position requires significant more cooperation with the head coach than the trainer position, which is player-centered and purposefully insulated from becoming too responsive to the head coach, in the interest of player wellness," Kobes noted.

"Banford also has not carried her ultimate burden of persuading us that she was the victim of intentional discrimination. Out of four part-time hockey staff members, three were openly gay. Two of those open gay women's contracts were renewed and one — Banford's — was not. The differentiating factor between those whose contracts were renewed and Banford was not their sexual orientation."

It is the second time the case has made its way to the 8th Circuit, with U.S. District Judge Patrick Schiltz originally dismissing her claims in February 2018, only to have the case revived by a U.S. Supreme Court ruling that paved the way for discrimination claims on the basis of sexual orientation. Schiltz again dismissed the case in April 2021, finding that UMD wanted to retain Banford, whose sexual orientation was publicly known.

Tuesday's decision may mark the end of the road for the long-running litigation, as further review would require a longshot petition to be granted by the entire 8th Circuit or U.S. Supreme Court.

This story was updated at 4:30 p.m., Aug. 12 to clarify information about the women staff members who were retained by UMD. It was originally posted at 4:56 p.m., Aug. 11.

Tom Olsen has covered crime and courts for the Duluth News Tribune since 2013. He is a graduate of the University of Minnesota Duluth and a lifelong resident of the city. Readers can contact Olsen at 218-723-5333 or tolsen@duluthnews.com.
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