A federal appeals court has ruled in favor of the University of Minnesota, which faced claims of discrimination after an openly gay athletics administrator at the University of Minnesota Duluth was fired in 2014.
In its opinion issued last week, a three-judge panel of the 8th U.S. Circuit Court of Appeals at St. Louis held that Jen Banford, who was hired as the head coach of the UMD women’s softball team in 2005 and also became the director of operations for the women’s hockey team in 2009, could not provide direct evidence of discrimination.
According to ABA Journal, citing law.com coverage, Josh Berlo became UMD’s new athletic director a few years after Banford moved into her second role and renewed her contract, according to the opinion. But in 2014, he decided to fire women’s hockey head coach Shannon Miller, who was Banford’s live-in romantic partner. He also considered firing Banford and several other staff members, all of whom were gay women.
Berlo consulted with UMD human resources before making final changes, which included relieving Banford of her administrative position with the women’s hockey team, the opinion said. She was offered a contract to continue as the head coach of the women’s softball team but declined.
Banford sued the board of regents of the University of Minnesota in 2015, alleging violations of Title VII, Title IX and the Minnesota Human Rights Act, the opinion said. The district court granted summary judgment to the university on the federal discrimination claims and dismissed the state law claims.
She appealed to the 8th Circuit, which remanded her case to the district court after the U.S. Supreme Court's 2020 decision in Bostock v. Clayton County, which held that the ban on sex discrimination in Title VII of the Civil Rights Act protects gay and transgender workers. Banford appealed a second time after the district court again granted summary judgment to the university.
The 8th Circuit said it had to address Banford’s claims under the McDonnell Douglas burden-shifting framework, which is used to determine whether a plaintiff’s disparate treatment claims should survive a defendant employer’s motion for summary judgment. If Banford could establish a prima facie case of discrimination, the court said the burden would shift to the university to provide a nondiscriminatory reason for not renewing her contract with the hockey team.
The 8th Circuit added that Banford would also have to show evidence that the university’s reason was “mere pretext for intentional discrimination.”
“UMD says it relieved Banford of her hockey duties because, when a Division I head coach is fired, it is typical to fire other staff members who work closely with them,” according to the opinion. “This allows the incoming head coach to select their own staff. 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.
“This explanation is enough to carry UMD’s burden, so it falls on Banford to show that the justification is mere pretext.”
Banford had argued that three similarly situated employees weren’t fired, but the 8th Circuit said two of these women couldn’t be considered comparators because Berlo knew that they were gay. Also, the third employee’s duties were different from Banford’s, the appeals court added.
“Out of four part-time hockey staff members, three were openly gay,” the opinion said. “Two of those openly gay women’s contracts were renewed … The differentiating factor between those whose contracts were renewed and Banford was not their sexual orientation.
“Banford has not met her burden of showing that she was fired because of her sexual orientation, rather than to allow the incoming head coach to appoint her own director of operations.”
The 8th Circuit affirmed the district court’s grant of summary judgment to the university.
