Miller et al v. Board of Regents of the University of Minnesota
ORDER. IT IS HEREBY ORDERED THAT: 1. UMD's motion for summary judgment on Annette Wiles's claims 75 is GRANTED. All of Wiles's federal claims are DISMISSED WITH PREJUDICE AND ON THE MERITS. All of Wiles's state claims are DISMISSED WITHOUT PREJUDICE FOR LACK OF JURISDICTION. 2. UMD's motion for summary judgment on Jen Banford's claims 82 is GRANTED. All of Banford's federal claims are DISMISSED WITH PREJUDICE AND ON THE MERITS. All of Banford' ;s state claims are DISMISSED WITHOUT PREJUDICE FOR LACK OF JURISDICTION. 3. UMD's motion for summary judgment on Shannon Miller's claims 79 is GRANTED IN PART and DENIED IN PART. All of Miller's federal claims -- save her Title V II discrimination and Title IX retaliation claims -- are DISMISSED WITH PREJUDICE AND ON THE MERITS. All of Miller's state claims are DISMISSED WITHOUT PREJUDICE FOR LACK OF JURISDICTION. 4. UMD's motion for separate trials 273 is DENIED AS MOOT. And 5. UMD's motion to exclude the expert testimony of Donna Lopiano, Ph.D. 69 is DENIED WITHOUT PREJUDICE. (Written Opinion) Signed by Judge Patrick J. Schiltz on February 1, 2018. (CLG)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
SHANNON MILLER, JEN BANFORD,
and ANNETTE WILES,
Case No. 15‐CV‐3740 (PJS/LIB)
THE BOARD OF REGENTS OF THE
UNIVERSITY OF MINNESOTA,
Daniel Mark Siegel, Jalle Dafa, and Jane E. Brunner, SIEGEL & YEE; Sharon L.
Van Dyck, Donald Chance Mark, Jr., Andrew T. James, Christopher R. Sall, and
Tyler P. Brimmer, FAFINSKI MARK & JOHNSON, P.A., for plaintiffs.
Timothy Joseph Pramas and William P. Donohue, UNIVERSITY OF
MINNESOTA OFFICE OF GENERAL COUNSEL; Jeanette M. Bazis, Katherine
M. Swenson, and Jenny Gassman‐Pines, GREENE ESPEL PLLP, for defendant.
Plaintiffs Shannon Miller, Jen Banford, and Annette Wiles were employed as
coaches by defendant University of Minnesota Duluth (“UMD”). Miller coached the
women’s hockey team, Banford coached the women’s softball team (and
simultaneously served on Miller’s staff as director of hockey operations), and Wiles
coached the women’s basketball team. All three coaches enjoyed considerable success.
Miller, in fact, won five national championships and may be the most accomplished
women’s hockey coach in the history of college athletics.
In December 2014, UMD decided not to renew Miller’s contract following a
number of disappointing seasons. UMD also decided not to renew the contracts of
several members of Miller’s staff, including Banford. In the wake of Miller’s non‐
renewal, both Banford and Wiles quit their jobs—Banford by rejecting UMD’s offer to
renew her contract as women’s softball coach and Wiles by resigning as UMD was
about to renew her contract as women’s basketball coach.
Miller, Banford, and Wiles filed this lawsuit against UMD. The three coaches
claim that they were non‐renewed or constructively discharged on account of their sex
(female) and sexual orientation (lesbian) and in retaliation for accusing UMD of
violating Title IX of the Education Amendments of 1972 (“Title IX”), 20 U.S.C. § 1681 et
seq. The three coaches also claim that, while they were employed by UMD, they
experienced a hostile work environment on account of their sex and sexual orientation.1
Finally, the three coaches assert claims under the Equal Pay Act of 1963 (“EPA”), 29
U.S.C. § 206(d).
This matter is before the Court on UMD’s motion for summary judgment. UMD
has also moved for separate trials on any of plaintiffs’ claims that survive. Finally,
UMD has moved to exclude the testimony of plaintiffs’ expert witness. The parties
Miller and Banford also asserted claims on the basis of their nationality
(Canadian), but they have abandoned those claims.
submitted about 250 pages of briefs and thousands of pages of exhibits, and the Court
conducted a long hearing on UMD’s motions on October 30, 2017.
For the reasons that follow, the Court grants UMD’s summary‐judgment motion
in part with respect to Miller and in full with respect to Banford and Wiles. All of the
claims of Banford and Wiles are dismissed. Likewise, all of the claims of Miller are
dismissed, with the exception of her claim that, when UMD decided not to renew her
contract, UMD discriminated against her on the basis of sex and retaliated against her
for raising Title IX complaints. Those two claims will be tried before a jury in Duluth
beginning on March 6, 2018.
I. SUMMARY‐JUDGMENT MOTION
Summary judgment is warranted “if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a). A dispute over a fact is “material” only if its resolution
might affect the outcome of the suit under the governing substantive law. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). And a dispute over a fact is “genuine” only
if “the evidence is such that a reasonable jury could return a verdict for the nonmoving
party.” Id. “The evidence of the non‐movant is to be believed, and all justifiable
inferences are to be drawn in [her] favor.” Id. at 255.
The Court will not attempt to summarize the facts. As noted, the parties’ briefs
are voluminous, and they describe dozens of emails, phone calls, conversations,
meetings, actions, and decisions. The parties have already waited a long time for
UMD’s motions to be decided,2 and a detailed recitation of the facts would serve little
purpose. The facts are described in the briefs and are largely undisputed. The Court
will assume familiarity with those facts and will mention particular facts only as
necessary to explain the basis of its rulings.
A. Sexual‐Orientation and State‐Law Claims
As noted, all three plaintiffs are lesbians, and all three contend that they lost
their jobs and suffered a hostile work environment on account of their sexual
orientation. The plaintiffs assert these claims under both federal and state
law—specifically, under Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C.
§ 2000e et seq., and under the Minnesota Human Rights Act (the “MHRA”), Minn. Stat.
§§ 363A.01 et seq.
Plaintiffs’ sexual‐orientation claims—and, in particular, their hostile‐
environment claims—are their strongest. Unfortunately for plaintiffs, however, their
The summary‐judgment motions and motion to exclude expert testimony were
filed on April 13, 2017, and the motion for separate trials was filed on May 11, 2017.
Unfortunately, however, the judge before whom those motions were originally pending
had to take disability leave. The case was then reassigned to the undersigned, and the
hearing on UMD’s motions had to be rescheduled.
federal claims must be dismissed on the merits, and their state claims must be
dismissed for lack of jurisdiction.
Plaintiffs’ claims under federal law must be dismissed with prejudice because the
Eighth Circuit has held that “Title VII does not prohibit discrimination against
homosexuals.” See, e.g., Williamson v. A.G. Edwards & Sons, Inc., 876 F.2d 69, 70 (8th Cir.
1989) (per curiam). Plaintiffs point out that the Seventh Circuit recently became the first
of the federal courts of appeals to hold that Title VII prohibits discrimination on the
basis of sexual orientation. See Hively v. Ivy Tech Cmty. Coll. of Ind., 853 F.3d 339 (7th Cir.
2017) (en banc). As plaintiffs concede, however, this Court is bound by the decisions of
the Eighth Circuit. See Hood v. United States, 342 F.3d 861, 864 (8th Cir. 2003) (“The
District Court . . . is bound, as are we, to apply the precedent of this Circuit.”).
Plaintiffs’ claims under state law must also be dismissed. Unlike Title VII, the
MHRA explicitly prohibits discrimination on the basis of sexual orientation. Minn. Stat.
§ 363A.08, subd. 2. But, as plaintiffs also concede, the Eleventh Amendment deprives
this Court of jurisdiction over plaintiffs’ MHRA claims. See Mem. in Opp’n at 31 (ECF
No. 306). The Eleventh Amendment provides that the “Judicial power of the United
States shall not be construed to extend to any suit in law or equity, commenced or
prosecuted against one of the United States by Citizens of another State . . . .” Although
the text of the Eleventh Amendment bars actions against a state only when those actions
are brought by “Citizens of another State,” the Supreme Court long ago held that the
Eleventh Amendment also bars actions against a state that are brought by its own
citizens. See Hans v. Louisiana, 134 U.S. 1, 15 (1890). “The University of Minnesota, of
which UMD is a constituent part . . . , is considered an arm of the state and, therefore,
shares the State of Minnesota’s Eleventh Amendment immunity.” Cardoso v. Bd. of
Regents of the Univ. of Minn., 205 F. Supp. 3d 1046, 1049 (D. Minn. 2016) (citing Treleven
v. Univ. of Minn., 73 F.3d 816, 818 (8th Cir.1996)).
Either Congress or the Minnesota Legislature could abrogate the Eleventh
Amendment immunity of the State of Minnesota. But “it is quite clear no such
abrogation has occurred” with respect to claims under the MHRA. Cardoso, 205
F. Supp. 3d at 1049 (citing Cooper v. St. Cloud State Univ., 226 F.3d 964, 969 (8th Cir.
2000), and Phillips v. Minn. State Univ. Mankato, No. 09‐CV‐1659 (DSD/FLN), 2009 WL
5103233, at *3 (D. Minn. Dec. 17, 2009)). As a result, this Court does not have
jurisdiction over plaintiffs’ sexual‐orientation claims under the MHRA—or, for that
matter, over any of plaintiffs’ other state‐law claims. Those claims must be dismissed
To be clear: Plaintiffs could have pursued their state‐law claims—including their
MHRA sexual‐orientation claims—in state court. But, for reasons that are not apparent,
plaintiffs chose to bring those claims in federal court, despite the fact that plaintiffs
knew (or should have known) that a federal court would have no jurisdiction over
them. As a result of their own choices, then, plaintiffs cannot recover on their (stronger)
sexual‐orientation claims, and instead are left to litigate their (weaker) sex
discrimination, hostile environment, Title IX, and EPA claims.3
B. Other Federal Claims
Miller alleges (1) discrimination based on sex with respect to the non‐renewal of
her contract in violation Title VII; (2) hostile work environment based on sex in
violation of Title VII; (3) retaliation in violation of Title IX; and (4) violation of the EPA.
a. Sex Discrimination. Miller does not have direct evidence of sex discrimination,
and thus, to avoid summary judgment, she must establish a prima facie case under
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Specifically, Miller must show
(1) that she was a member of a protected class; (2) that she was meeting UMD’s
legitimate expectations; (3) that she suffered an adverse employment action; and (4) that
The strength of plaintiffs’ sexual‐orientation claims—and the corresponding
weakness of their other claims—is reflected in their memorandum. The core narrative
of that memorandum is that Athletics Director Josh Berlo (the key decision maker with
respect to all three plaintiffs) was “extremely homophobic” and acted to “purge”
lesbians from his department. See, e.g., Mem. in Opp’n at 1 (accusing Berlo of “an effort
to rid [UMD’s athletics] department of six self‐identified lesbian coaches”); id. at 6
(alleging that UMD had a “historical problem with lesbian women”); id. at 11 (Wiles
complaining Berlo “was extremely homophobic and on a ‘witch hunt’ to fire her”); id. at
16 (arguing that Berlo enacted a “[p]lan to purge six lesbian coaches and staff”).
the adverse employment action occurred under circumstances giving rise to an
inference of discrimination. Darke v. Lurie Besikof Lapidus & Co., 550 F. Supp. 2d 1032,
1042 (D. Minn. 2008). If Miller makes out a prima facie case, the burden shifts to UMD
to provide a legitimate nondiscriminatory explanation for the adverse action. Id. If
UMD provides such an explanation, the burden shifts back to Miller to establish that
UMD’s proffered explanation is pretextual and that discrimination was the real reason
for the adverse action. Id.
Miller has satisfied the “low burden” of establishing a prima facie case. Bunch v.
Univ. of Ark. Bd. of Trs., 863 F.3d 1062, 1068 (8th Cir. 2017). First, Miller was a member
of a protected class. Second, Miller was meeting UMD’s legitimate expectations—and,
in fact, had performed her job for years. See Davenport v. Riverview Gardens Sch. Dist., 30
F.3d 940, 944 (8th Cir. 1994). Third, Miller suffered an adverse employment action
when her contract was not renewed. As the Second Circuit noted in Leibowitz v. Cornell
University, 584 F.3d 487, 501 (2d Cir. 2009), superseded by statute on other grounds, as
recognized in Sands v. Rice, 619 F. App’x 31, 32 (2d Cir. 2015), “[a]n employee seeking a
renewal of an employment contract . . . suffers an adverse employment action when an
employment opportunity is denied and is protected from discrimination in connection
with such decisions under Title VII . . . . The mere fact that the employer’s decision not
to renew is completely discretionary does not mean that it is not an ‘adverse’
employment decision.” But see Ewald v. Royal Norwegian Embassy, 2 F. Supp. 3d 1101,
1121 (D. Minn. 2014) (concluding without analysis that the non‐renewal of a contract
was not an adverse employment action). Finally, Miller has proffered facts “that give
rise to an inference of sex discrimination.” McGinnis v. Union Pac. R.R., 496 F.3d 868,
874 (8th Cir. 2007). These same facts also provide evidence that UMD’s explanation for
her firing—the poor performance of the women’s hockey team and the poor return on
UMD’s “salary investment”—is pretextual.
Specifically, the record contains evidence that would allow a jury to find that:
(1) Scott Sandelin, the head coach of the men’s hockey team, had his contract renewed
despite comparable (or arguably worse) performance. (2) In deciding to renew
Sandelin’s contract, UMD applied different criteria than it applied in deciding not to
renew Miller’s contract. (3) The administrators involved in the decision not to renew
Miller’s contract offered inconsistent explanations for their decision, first claiming that
the non‐renewal was based solely on financial considerations and only later attempting
to justify the non‐renewal on the basis of Miller’s performance. (4) UMD’s financial
condition was not as dire as it claimed. (5) UMD did not ask Miller to accept a pay cut
in lieu of termination, nor did it pursue leads regarding donors who expressed interest
in helping to fund Miller’s salary. See Mem. in Opp’n at 19, 36, 40‐46.
Miller has sufficient evidence to try her sex‐discrimination claim.
b. Title IX Retaliation. Miller also has sufficient evidence to try her Title IX
retaliation claim. UMD does not dispute that Miller engaged in protected conduct by
complaining that UMD treated the men’s athletics program better than the women’s
athletics program. UMD also does not dispute that Miller suffered an adverse
employment action when her contract was not renewed.4 Instead, UMD argues only
that Miller cannot prove a connection between the protected activity and the adverse
action. UMD Mem. (ECF No. 283) at 52‐53.
The Court disagrees. The record indicates that Miller regularly complained
about perceived Title IX violations, and that those complaints spanned her tenure.
Indeed, UMD conceded at oral argument that Miller’s complaints continued until
shortly before Athletics Director Josh Berlo opted not to renew her contract. See also
Miller Decl. (ECF No. 307) ¶¶ 7, 30‐31; Miller’s Am. Answers to Def.’s First Set of
Interrogs. (ECF No. 131) at 6‐7 (noting she had “repeatedly raised the issues of disparate
funding for women’s teams,” including “at least five times during the 2013‐14 school
year”); id. at 12 (discussing July 2014 meeting with Berlo raising concerns with funding
and athletics trainers). While UMD correctly notes that, as a general matter, temporal
proximity will not suffice to establish retaliation, an adverse action close in time to
Curiously, UMD asserts that non‐renewal of an employment contract is an
adverse action for purposes of a Title IX retaliation claim but not for purposes of a
Title VII discrimination claim. It is difficult to understand how that could be true.
protected activity “may directly support an inference of retaliation” when viewed
“within the context of the overall record.” Wallace v. DTG Operations, Inc., 442 F.3d 1112,
1122 (8th Cir. 2006), abrogated on other grounds by Torgerson v. City of Rochester, 643 F.3d
1031 (8th Cir. 2011) (en banc).
Looking at the record in its entirety, the Court concludes that, although the
evidence supporting Miller’s Title IX retaliation claim is thin, Miller has sufficient
evidence to avoid summary judgment.
c. Hostile Work Environment. Miller does not, however, have sufficient evidence
to avoid summary judgment on her claim that she suffered a hostile work environment
on account of her sex. Two things about Miller’s claim must be emphasized:
First, Miller must show that she suffered a hostile environment on account of her
sex and not for some other reason, such as that her personality clashed with the
personalities of others, or that she and others had strong disagreements over, say, the
proper direction of the women’s hockey program. Miller has evidence that she suffered
hostility on account of her sexual orientation (that is, because she was a person who was
sexually attracted to members of the same sex), see Miller Decl. ¶¶ 14‐16, but she has
little evidence that she suffered hostility on account of her sex (that is, because she was
female). For example, Miller complains that she was excluded from a strategic planning
committee created by Berlo in May 2014. Yet it is undisputed that several women were
asked to serve on that committee, including Banford. Thus, while Miller’s exclusion
from the committee may be evidence that Berlo was hostile to her, it is not evidence that
Berlo was hostile to her on account of her sex. See, e.g., Singletary v. Mo. Dep’t of Corr., 423
F.3d 886, 893 (8th Cir. 2005) (conduct must be based on plaintiff’s protected
Second, Miller must show that she experienced something worse than the type of
bad behavior found in most workplaces. Every employee at one time or another must
endure the stupid decisions of bosses or the irritating behavior of co‐workers. Title VII
does not provide shelter from the slings and arrows of the typical workplace. Instead,
to recover on a hostile‐environment claim, an employee must show that she was
exposed to conduct that was so “‘severe or pervasive’ . . . as to create an ‘objectively
hostile or abusive work environment.’” Crawford v. BNSF Ry. Co., 665 F.3d 978, 983 (8th
Cir. 2012) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 20 (1993)); see also Cross v.
Prairie Meadows Racetrack & Casino, Inc., 615 F.3d 977, 981 (8th Cir. 2010) (“Actionable
conduct must . . . be extreme rather than merely rude or unpleasant.”).
The Eighth Circuit has often described this as a “high threshold,” Duncan v.
County of Dakota, 687 F.3d 955, 959 (8th Cir. 2012), and the Eighth Circuit has meant it.
For example, the Eighth Circuit affirmed the dismissal of a hostile‐environment claim in
Rickard v. Swedish Match North America, Inc., 773 F.3d 181, 183 (8th Cir. 2014), even
though the supervisor grabbed and squeezed the employee’s nipple while stating “this
is a form of sexual harassment,” and even though the supervisor took a towel from the
employee, rubbed it on his crotch, and gave it back to the employee. The Eighth Circuit
also affirmed the dismissal of a hostile‐environment claim in McMiller v. Metro, 738 F.3d
185, 186‐87 (8th Cir. 2013), even though the supervisor put his arms around the
employee’s shoulders and kissed the side of her face and then later called the employee
into his office, locked the door, and, when the employee tried to escape, “placed his
hand on her right wrist, removed her hand from the door, turned her toward him, put
his arms on her shoulders and neck, and kissed her on the side of her face and
forehead.” The McMiller court found that the employee did not have a viable hostile‐
environment claim in light of the high bar set by prior Eighth Circuit decisions, some of
which it described as follows:
In Duncan v. General Motors Corp., 300 F.3d 928 (8th Cir.2002),
the court determined that a plaintiff had not proved a hostile
work environment with evidence that a supervisor sexually
propositioned her, repeatedly touched her hand, requested
that she draw an image of a phallic object to demonstrate her
qualification for a position, displayed a poster portraying the
plaintiff as “the president and CEO of the Man Hater’s Club
of America,” and asked her to type a copy of a “He‐Men
Women Hater’s Club” manifesto. Id. at 931‐35. In Anderson
v. Family Dollar Stores of Arkansas, Inc., 579 F.3d 858 (8th Cir.
2009), where a supervisor had rubbed an employee’s back
and shoulders, called her “baby doll,” “accus[ed] her of not
wanting to be ‘one of [his] girls,’” suggested once in a
long‐distance phone call “that she should be in bed with
him,” and “insinuat[ed] that she could go farther in the
company if she got along with him,” this court ruled that the
evidence was insufficient to establish a hostile work
environment. Id. at 862. And in LeGrand v. Area Resources for
Community and Human Services, 394 F.3d 1098 (8th Cir. 2005),
the court ruled that a plaintiff who asserted that a harasser
asked him to watch pornographic movies and to masturbate
together, suggested that the plaintiff would advance
professionally if the plaintiff caused the harasser to orgasm,
kissed the plaintiff on the mouth, “grabbed” the plaintiff’s
buttocks, “brush[ed]” the plaintiff’s groin, “reached for” the
plaintiff’s genitals, and “briefly gripped” the plaintiff’s
thigh, had not established actionable harassment. Id. at
McMiller, 738 F.3d at 188‐89.
The evidence in the record does not enable Miller to clear the “high threshold” of
proving that she experienced misconduct that was so severe or pervasive that it
“affected a term, condition, or privilege of her employment.” Alvarez v. Des Moines Bolt
Supply, Inc., 626 F.3d 410, 419 (8th Cir. 2010). To the contrary, the bad behavior of which
she complains was not nearly as serious as the bad behavior experienced by the
unsuccessful plaintiffs in Rickard, McMiller, Anderson, LeGrand, and Duncan. Miller
argues generally that she was “treated coldly or completely ignored by Berlo.” Mem. in
Opp’n at 50. But getting the cold shoulder from a boss is not the kind of severe or
pervasive conduct that violates Title VII. See, e.g., Faragher v. City of Boca Raton, 524 U.S.
775, 788 (1998) (noting that “the ordinary tribulations of the workplace, such as the
sporadic use of abusive language, gender‐related jokes, and occasional teasing,” are not
actionable, lest Title VII “become a ‘general civility code’” (citation omitted)). Miller
also cites various disputes with Berlo and others in the athletics department, such as a
dispute over the removal of an article about her from UMD’s website. But these are the
types of disputes that are typical of any workplace—especially a workplace that is as
competitive as a college athletics department. See, e.g., Bradley v. Widnall, 232 F.3d 626,
631‐32 (8th Cir. 2000) (affirming dismissal of claim based on allegations that plaintiff’s
supervisory duties were curtailed, she was left out of decisionmaking, and she was
treated with disrespect and subjected to false complaints), abrogated on other grounds by
Torgerson, 643 F.3d at 1059. Moreover, there is no evidence that the various slights
suffered by Miller interfered with her ability to perform her job; to the contrary, Miller
wanted to remain at UMD, and she contends that she was performing admirably at the
time that her contract was not renewed. Miller Decl. ¶¶ 55‐56; see also Mem. in Opp’n
at 36 (“At the time UMD decided not to renew Miller’s coaching contract, her team was
one of the best in the country . . . .”).
For these reasons, the Court grants UMD’s motion for summary judgment on
Miller’s claim that she experienced a hostile work environment based on sex.
d. Equal Pay Act. The EPA provides, in relevant part, as follows:
No employer . . . shall discriminate, within any
establishment in which such employees are employed,
between employees on the basis of sex by paying wages to
employees in such establishment at a rate less than the rate
at which he pays wages to employees of the opposite sex in
such establishment for equal work on jobs the performance
of which requires equal skill, effort, and responsibility, and
which are performed under similar working conditions,
except where such payment is made pursuant to (i) a
seniority system; (ii) a merit system; (iii) a system which
measures earnings by quantity or quality of production; or
(iv) a differential based on any other factor other than sex.
. . .
29 U.S.C. § 206(d)(1). To make out a prima facie case under the EPA, the plaintiff must
show that her employer paid her less than a male employee even though their jobs
required equal skill, effort, and responsibility, and were performed under similar
working conditions. Taylor v. White, 321 F.3d 710, 715 (8th Cir. 2003).
Miller argues that she was paid less than Sandelin—who, she says, was
performing a job “on par” with hers because each coached a hockey team at UMD.
Mem. in Opp’n at 54‐55. Jobs do not have to be identical to be considered “equal”
under the EPA. Krenik v. Cty. of Le Sueur, 47 F.3d 953, 961 (8th Cir. 1995). At the same
time, job titles and classifications are not dispositive; it is the actual requirements of the
jobs that control. Tenkku v. Normandy Bank, 348 F.3d 737, 741 (8th Cir. 2003).
Miller cannot prove that her job and Sandelin’s job “require[d] equal skill, effort,
and responsibility, and . . . [were] performed under similar working conditions.” 29
U.S.C. § 206(d)(1). True, the formal job duties listed in Miller’s contract were identical
to the formal job duties listed in Sandelin’s. But it is undisputed that the men’s hockey
team at UMD attracts vastly more attention, draws vastly higher attendance, and earns
vastly more revenue than the women’s hockey team. Indeed, the men’s hockey team
helps to fund the women’s hockey team.
Understandably, then, the men’s hockey coach is under more pressure to
win—and has more demands on his time—than the women’s hockey coach. This fact,
standing alone, is “evidence of a substantial difference in responsibility.” Stanley v.
Univ. of S. Cal., 13 F.3d 1313, 1322 (9th Cir. 1994); accord, e.g., Cullen v. Ind. Univ. Bd. of
Trs., 338 F.3d 693, 700 (7th Cir. 2003) (difference in revenue generated by university
programs in physical therapy and respiratory therapy, and university’s “dependence
upon the revenue generated by” the physical‐therapy program, meant plaintiff’s
position as head of respiratory therapy was not “equal” to head of physical therapy).
The conditions under which Sandelin worked were simply not “similar” to the
conditions under which Miller worked. 29 U.S.C. § 206(d)(1).
Moreover, even if Miller could show that Sandelin and she were performing
equal work under similar conditions, UMD still would be entitled to summary
judgment because there is no genuine dispute that the pay differential between Miller
and Sandelin reflected market forces. UMD does not hire coaches in a vacuum; it
competes for them in open markets. And the undisputed evidence is that the market
for coaches of men’s hockey teams is far larger and far more competitive than the
market for coaches of women’s hockey teams. As a result, men who coach women’s
hockey teams make less money than men who coach men’s hockey teams. “Unequal
wages that reflect market conditions of supply and demand are not prohibited by the
EPA.” Stanley, 13 F.3d at 1322; see also Horner v. Mary Inst., 613 F.2d 706, 714 (8th Cir.
1980) (“[A]n employer may consider the market place value of the skills of a particular
individual when determining his or her salary.”).
At the hearing, Miller directed the Court’s attention to Drum v. Leeson Electric
Corp., 565 F.3d 1071, 1073 (8th Cir. 2009), which, she argued, held that market forces
cannot justify paying a woman less than a man for equal work. But Drum is
distinguishable. In Drum, the employer hired both the plaintiff and her male
comparator from the same market—namely, the market for human‐resources directors.
The Eighth Circuit held that, when both a man and a woman are hired from the same
market, an employer cannot justify paying lower wages to the woman on the grounds
that women in that market have traditionally been paid less than men in that market.
Here, by contrast, UMD hired Sandelin from one market (the market for coaches of
men’s hockey teams) and Miller from a different market (the market for coaches of
women’s hockey teams). Drum, therefore, does not help Miller.
For these reasons, the Court grants UMD’s motion for summary judgment on
Miller’s claim under the EPA.
Banford alleges (1) discrimination based on sex with respect to the termination of
her employment in violation Title VII; (2) hostile work environment based on sex in
violation of Title VII; and (3) retaliation in violation of Title IX.5
a. Sex Discrimination. Banford served simultaneously as head softball coach and
director of (women’s) hockey operations. UMD terminated Banford’s contract in
December 2014, as part of its decision not to renew the contracts of Miller and her senior
staff. Banford argues that termination of her two positions violated Title VII. The
evidence does not support her argument.
Banford offered scant argument about the softball position in her memorandum,
and for good reason: The record clearly establishes that UMD intended to retain her as
head softball coach notwithstanding the termination of her hockey‐operations position.
Indeed, on January 27, 2015, the school offered her a new contract limited to coaching
the softball team (at comparable pay6), but she turned it down. Under these
circumstances, it is difficult to conceive how UMD discriminated against her in the
Banford, like Miller, also brought an EPA claim, but she has abandoned that
To be sure, Banford’s overall pay would have been lower in the new contract, as
the new contract was for one job rather than two. But Banford acknowledged at oral
argument that her salary under the new contract would have been “fairly comparable”
to the “softball” portion of the salary that she received under the old contract.
“termination” of her softball position—or, indeed, how it “terminated” her from that
position at all. Banford cannot establish that she suffered an adverse employment
action, and thus she cannot make out a prima facie case of discrimination. See Fair v.
Norris, 480 F.3d 865, 870 (8th Cir. 2007) (plaintiff, who was initially denied promotion,
could not establish adverse‐action element of prima facie case where employer later
offered her the position sought, with back pay and benefits).
Banford points to a form letter that she received on December 11, 2014, which
indicated that her “appointment as the Director of Hockey Operations/Head Softball
Coach . . . will end on June 14, 2015,” and which concluded by wishing her luck in her
future endeavors. ECF No. 102 at 4. She claims this shows that UMD did not intend to
retain her as softball coach and only offered her a new contract after she spoke to the
media on January 18, 2015. See Mem. in Opp’n at 20‐22. Yet Banford acknowledges that
the December 11 letter was attached to an email advising her that UMD was “working
with Human Resources to reclassify your job as solely Head Softball Coach.” ECF
No. 102 at 3. She further acknowledges that Berlo told her in December 2014 that “you
are our softball coach.” Banford Decl. (ECF No. 308) ¶ 21. And she acknowledges that
Jay Finnerty, a UMD Assistant Athletics Director, told her in December 2014 that she
should “relax” because the school had 60 days to prepare a new contract reflecting a
softball‐only role. Banford Dep. (ECF No. 177) at 164‐65, 192. Finally, none of UMD’s
internal communications indicate any intent to terminate her as softball coach. See, e.g.,
ECF No. 89 at 70‐74, 88‐89; ECF No. 93 at 2. Banford simply was not “terminated” from
her softball position.
There is no dispute that UMD terminated Banford from her hockey‐operations
position, but the record does not support Banford’s argument that UMD terminated her
because she was a woman. When UMD opted not to renew Miller’s contract as head
coach of the women’s hockey team, UMD also opted not to renew the contracts of
Miller’s senior staff, including her assistant coaches and her director of hockey
operations (Banford). According to UMD, when a college discharges a head coach, it is
common to discharge the head coach’s senior staff at the same time so that “the
incoming head coach can select her own staff . . . .” UMD Mem. at 5. Both Berlo and
UMD Chancellor Lendley Black testified to this “common” practice at their depositions.
See Berlo Dep. (ECF No. 179) at 31‐32; Black Dep.7 at 214‐15. Berlo’s deposition
testimony was consistent with what he told Miller during a December 11, 2014
telephone call that Miller recorded without Berlo’s knowledge. See ECF No. 93 at 3
(when Berlo was asked by Miller why Banford would not be retained as director of
operations, he responded, “Because the supervisor potentially is changing and anytime
that’s the case . . . you know, it would be up to whomever comes in if they want that
The transcript of Black’s deposition does not have its own docket entry, but
rather commences on page 96 of ECF No. 93.
arrangement or not”). Even Miller acknowledged in her deposition that “no head coach
maybe wants to be dictated who’s on their staff . . . .” Miller Dep. (ECF No. 183) at 22.
Banford responds that UMD’s proffered reason is unworthy of credence. She
notes that three other, non‐coaching members of the hockey staff were not terminated at
the same time she was. She also argues that, while it might be common to discharge
assistant coaches when a head coach is fired, it is not common to discharge someone like
Banford, who worked only in an operations role. Mem. in Opp’n at 42. But Banford
cites no evidence to support this argument. Moreover, despite Banford’s assertions to
the contrary, the record is clear that Banford reported directly to Miller in connection
with her hockey duties, while each of the non‐coaching members of the hockey staff
who were retained did not. See ECF No. 92 at 14‐15; ECF No. 94 at 35‐36; Banford Dep.
at 147‐48; Wheeler Dep. (ECF No. 152) at 30‐31. It is entirely consistent with UMD’s
explanation that Miller’s direct reports were dismissed but not those who reported to
others. In any event, it is undisputed that the three persons who were retained were all
female, which completely undermines Banford’s argument that she was
terminated—and the others were not—on account of sex.
For these reasons, the Court grants UMD’s motion for summary judgment on
Banford’s sex‐discrimination claim.
b. Hostile Work Environment. Banford also does not have sufficient evidence to
avoid summary judgment on her claim that she suffered a hostile work environment on
account of her sex. Like Miller, Banford cannot clear the “high threshold” of showing
that (1) she experienced misconduct that was so severe or pervasive that it created an
objectively hostile or abusive work environment and (2) she experienced this conduct
because she was a woman, instead of for another reason. Duncan, 687 F.3d at 959.
Banford has a long list of complaints—some bordering on petty—about the way
that she was treated by UMD, including (to cite just a few examples) fights over
budgets, fights over equipment, fights over field usage, fights over the location of her
office, and fights over how to address certain issues involving certain student athletes.
None of the matters about which Banford complains have an apparent connection to the
fact that she is female; to the contrary, they seem to be the types of disputes that are
ubiquitous in college athletics departments. Moreover, none of the matters about which
Banford complains—alone or in combination—represent conduct that is “extreme
rather than merely rude or unpleasant.” Cross, 615 F.3d at 981.8
The most serious conduct cited by Banford is an alleged statement made in 2015
by Bob Nygaard, Assistant Athletics Director for Communications, after Banford
Like Miller, Banford also points to a few serious incidents from 2011 and earlier,
but these incidents related to her sexual orientation, not her sex. See Banford Decl. ¶¶ 6‐
complained to the media that she was being mistreated by UMD. Banford heard from
Kelly Wheeler, the hockey team’s Sports Information Director, that Nygaard reacted to
the media reports by saying that he would have punched Banford in the face if he had
seen her. Banford Dep. at 259; Wheeler Dep. at 100‐01. But this threat was not made to
Banford; she heard about it only second‐hand from Wheeler. Moreover, when Banford
complained to Finnerty about the threat, UMD conducted an investigation and
suspended Nygaard for five days without pay. ECF No. 126. (Berlo later reversed the
suspension.) Regardless, this isolated threat made outside of Banford’s presence falls
far short of the bad behavior experienced by the plaintiffs in Rickard, McMiller,
Anderson, LeGrand, and Duncan—and those plaintiffs, it will be recalled, had their
hostile‐environment claims dismissed.
For these reasons, the Court grants UMD’s motion for summary judgment on
Banford’s claim that she experienced a hostile work environment based on sex.
c. Title IX Retaliation. Banford, like Miller, alleges that she was terminated in
retaliation for complaining that UMD violated Title IX by treating men’s athletics
programs better than women’s athletics programs. In addressing Miller’s claim, the
Court concluded that, while Miller’s evidence was thin, she had enough evidence to
survive summary judgment. The Court reaches a different conclusion about Banford.
As the Court has already held, Banford was not terminated at all from her job as
head softball coach. The record is also clear that Banford was terminated from her job
as director of hockey operations so that Miller’s replacement would be free to hire her
own staff. There is no evidence supporting Banford’s claim that the real reason for her
termination from her hockey‐operations position was to retaliate against her for
complaining about Title IX violations.
Banford expressed concerns to Berlo about the field that the women’s softball
team had to use, but that occurred in 2013, which predated the termination of her
hockey‐operations position by more than a year. This lack of temporal proximity
undermines any retaliatory nexus. See, e.g., Liles v. C.S. McCrossan, Inc., 851 F.3d 810,
819 (8th Cir. 2017). Further undermining any such nexus is the fact that Berlo gave
Banford an extremely positive performance review in May 2014, which was after she
complained about the field. ECF No. 89 at 16‐24.
As already noted, Banford also complained to the media about UMD’s treatment
of her specifically and the women’s athletics program generally in January 2015. Far
from being retaliated against, however, the record reveals that she received a new offer
to coach the softball team a mere nine days later, and she was encouraged to apply for a
position with the newly hired women’s hockey coach. ECF No. 89 at 95‐96. Banford
turned down that offer9—and, on the same day, complained to Finnerty about a host of
perceived gender‐equity issues. She made additional complaints in the months that
followed. At that point, however, the die was cast. Banford had rejected UMD’s offer
and made clear that she would be leaving at the end of the season. It is therefore
difficult to identify any adverse action that UMD took in retaliation for these
complaints—which, the Court notes, were forwarded by Finnerty to the University of
Minnesota’s Office of Equal Opportunity and Affirmative Action. That office
investigated Banford’s complaints and found that, with one exception (the complaint
about Nygaard’s comment, which is described above), the complaints were without
substance. See ECF No. 137.
Though far from clear, Banford may intend to argue that her working conditions
were so intolerable that she had no choice but to turn down UMD’s offer. In other
words, Banford may be claiming that she was constructively discharged. If Banford is
making such a claim, the Court rejects it. The Court has already held that the conduct
that Banford cites was not sufficiently severe or pervasive to support a hostile‐
environment claim; necessarily, then, that same conduct does not support a
constructive‐discharge claim. See Pa. State Police v. Suders, 542 U.S. 129, 146‐47 (2004).
Moreover, a reasonable jury could not conclude that UMD “deliberately created
intolerable working conditions with the intention of forcing her” to reject its contract offer.
Blake v. MJ Optical, Inc., 870 F.3d 820, 826 (8th Cir. 2017) (emphasis added) (citation and
quotations omitted), petition for cert. filed (U.S. Jan. 16, 2018) (No. 17‐1015); see also Ames
v. Nationwide Mut. Ins. Co., 760 F.3d 763, 768 (8th Cir. 2014) (evidence showing
employer’s “intent to maintain an employment relationship” undermined constructive‐
For these reasons, the Court grants UMD’s motion for summary judgment on
Banford’s claim that she was terminated in retaliation for complaining about violations
of Title IX.
Wiles alleges (1) discrimination based on sex with respect to being constructively
discharged in violation of Title VII; (2) hostile work environment based on sex in
violation of Title VII; (3) retaliation in violation of Title IX; and (4) violation of the EPA.
Having reviewed the record carefully, the Court concludes that Wiles, like Banford,
does not have sufficient evidence to survive summary judgment on any of her claims.
a. Sex Discrimination and Hostile Work Environment. Wiles’s main claim is that
UMD constructively discharged her—that is, “forced [her] to resign less than 3 weeks
before her contract’s end date.” Mem. in Opp’n at 35. “To prove a case of constructive
discharge, a plaintiff must show (1) a reasonable person in her situation would find the
working conditions intolerable, and (2) the employer intended to force her to quit.”
Anda v. Wickes Furniture Co., 517 F.3d 526, 534 (8th Cir. 2008) (citation, quotations, and
A constructive‐discharge claim is analytically distinct from a hostile‐environment
claim. See Wilkie v. Dep’t of Health & Human Servs., 638 F.3d 944, 954 (8th Cir. 2011).
Both, however, require the plaintiff to prove not just that she experienced bad conduct,
but that she experienced really bad conduct. In connection with a hostile‐environment
claim, a plaintiff must (as discussed above) establish conduct that was so “‘severe or
pervasive’ . . . as to create an ‘objectively hostile or abusive work environment.’”
Crawford, 665 F.3d at 983 (quoting Harris, 510 U.S. at 20). In connection with a
constructive‐discharge claim, a plaintiff must establish conduct that “[a] reasonable
person in her position would . . . have found . . . so intolerable that she was compelled
to resign.” Brenneman v. Famous Dave’s of Am., Inc., 507 F.3d 1139, 1144 (8th Cir. 2007).
The constructive‐discharge standard is even more difficult to meet than the hostile‐
environment standard. See Pa. State Police v. Suders, 542 U.S. 129, 147 (2004) (“A
hostile‐environment constructive discharge claim entails something more [than an
actionable hostile work environment].”); see also Brenneman, 507 F.3d at 1143‐45 (finding
that the conduct experienced by plaintiff was sufficiently severe to create an objectively
hostile environment, but not so intolerable as to compel a reasonable person to resign).
Here, Wiles points to the same evidence to support both her hostile‐environment
and constructive‐discharge claims. See Mem. in Opp’n at 39 (supporting her
constructive‐discharge claim with the argument that UMD’s athletics department “was
objectively and subjectively hostile to all women”). Like Miller and Banford, Wiles cites
a host of matters she labels as “hostile,” such as disputes over her budget, exclusion
from meetings and committees, the imposition of charges for wear and tear on her
UMD‐leased car, and being “treated coldly by Berlo.” Mem. in Opp’n at 8‐9, 15, 40. But
there is no evidence that any of these run‐of‐the‐mill disputes had anything to do with
the fact that Wiles is a woman. And even if, say, Wiles would not have experienced a
dispute over wear‐and‐tear charges if she had been a man, the conduct that she cites
falls far short of the type of conduct needed to support a hostile‐environment or
Indeed, the story told by Wiles strongly suggests that whatever hostility she
experienced was related to her sexual orientation, not her sex. According to Wiles, she
got along very well with Berlo until October 2013, during which time Berlo obviously
knew that Wiles was a woman. In October 2013, however, Berlo learned that Wiles
would be speaking at a “Coming Out Day Luncheon.” Berlo declined Wiles’s invitation
to attend the luncheon and made a comment about the event that she perceived as
hostile to homosexuals. After that, according to Wiles, Berlo was hostile to her.
Wiles’s claim is difficult to square with the fact that Berlo gave her an extremely
positive performance review in April 2014—that is, long after the Coming Out Day
Luncheon. See ECF No. 226. It is hard to know why an “extremely homophobic”
athletics director who was plotting to “purge” lesbians from his department would give
such a glowing review to Wiles. See, e.g., Mem. in Opp’n at 11 (Wiles complaining Berlo
“was extremely homophobic and on a ‘witch hunt’ to fire her”); id. at 16 (arguing that
Berlo enacted a “[p]lan to purge six lesbian coaches and staff”).
The relationship between Wiles and Berlo did sour after the April 2014
performance review, but the cause of that deterioration is clear from the record. Berlo
directed that all student athletes at UMD (male and female) be surveyed on an annual
basis about their experiences. Wiles was the only coach whose players expressed
significant criticism, and Wiles took the news very hard. Berlo did not help matters
when he used the negative feedback to justify giving Wiles a salary increase that was
smaller than the raise she otherwise would have received—a decision that the
University later deemed to be inequitable.
None of this is evidence of sex discrimination. Wiles acknowledges that there is
no evidence in the record suggesting that any male coach received a higher salary
increase after receiving similarly negative feedback. Nor is there any indication that
Berlo used the survey results as a pretext to force Wiles to resign. Indeed, Berlo was
generally supportive of Wiles—notwithstanding the fact that her players were harshly
critical of her—and he continued to give her encouragement in face‐to‐face meetings
and through text messages and emails. See ECF No. 91 at 124, 135; ECF No. 94 at 11, 13;
ECF Nos. 167, 169, 173, 175.
Wiles contends that Berlo’s hostility culminated in her not receiving a contract
offer by the time she resigned in June 2015. But (as Wiles acknowledged at her
deposition) renewal of her contract was automatic unless she received six months’
advance notice of non‐renewal, which she indisputably did not receive. Wiles Dep.
(ECF No. 189) at 44‐45. In other words, Berlo effectively renewed Wiles’s contract when
he did not provide six months’ notice of an intent to non‐renew. Wiles has no
explanation for why Berlo would give her positive performance reviews, support her in
the face of negative player evaluations, and renew her contract if he was trying to force
her to quit.
For these reasons, the Court grants UMD’s motion for summary judgment on
Wiles’s hostile‐environment and constructive‐discharge claims.
b. Title IX Retaliation. Wiles claims that she was constructively discharged in
retaliation for complaining about violations of Title IX. But the Court has already held
that no reasonable jury could find that Wiles was constructively discharged. The Court
therefore grants UMD’s motion for summary judgment on Wiles’s claim of retaliation
under Title IX.
c. Equal Pay Act. Wiles asserts a claim under the EPA, contending she was paid
less than Matt Bowen, the head coach of the men’s basketball team. But Berlo has
submitted a declaration explaining that, during the last two years of Wiles’s
employment (the 2013‐14 and 2014‐15 seasons10), Wiles’s total compensation actually
exceeded Bowen’s. ECF No. 453 ¶ 11.
Wiles disputed Berlo’s figures at oral argument, pointing to the report of her
expert witness, Donna Lopiano. See Lopiano Report (ECF No. 73). But a comparison of
the numbers in the Lopiano report to those in the Berlo declaration suggests that
Lopiano excluded certain items when calculating Wiles’s total compensation, but included
similar items when calculating Bowen’s. For example, Lopiano appears to have included
in Bowen’s 2013‐14 compensation a $7,200 vehicle stipend that he received. Compare
Lopiano Report at 92‐93 with ECF No. 453 ¶ 11. Yet Lopiano appears to have excluded
from Wiles’s compensation the value of the leased vehicle that she received.
In short, Wiles appears to rest her EPA claim on an apples‐to‐oranges
comparison. Hence, the Court does not believe that she has met her burden of
demonstrating that she was paid less than Bowen. See, e.g., Price v. N. States Power Co.,
664 F.3d 1186, 1191 (8th Cir. 2011) (EPA plaintiff bears initial burden of showing that
defendant paid male employees more than females).
Even if Miller’s numbers were accepted, they show a disparity in pay during the
relevant time period of just over two percent. As it did with respect to Miller, UMD
A two‐year statute of limitations applies to non‐willful EPA violations. 29
U.S.C. § 255(a). Plaintiffs do not allege that any violation of the EPA by UMD was
offers a market‐based justification for this small difference between Wiles’s and
Bowen’s compensation. UMD also submitted evidence that, while Wiles’s salary was
above market for women’s basketball coaches, Bowen’s salary was below market for
men’s basketball coaches. In her brief, Wiles offered no response to UMD’s evidence.
When pressed at oral argument, Wiles simply pointed to Drum, which does not help her
for the same reason that it does not help Miller.
The Court therefore grants UMD’s motion for summary judgment on Wiles’s
II. MOTION FOR SEPARATE TRIALS
UMD has moved (ECF No. 273) for separate trials on the claims of each plaintiff.
This motion is denied as moot, given that only Miller has claims that remain to be tried.
III. MOTION TO EXCLUDE EXPERT TESTIMONY
Finally, UMD has moved (ECF No. 69) to preclude Lopiano from testifying at
trial under Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993). As noted at the
hearing, the Court doubts that it will permit Lopiano to testify about much, if it permits
her to testify at all. But as also noted at the hearing, the Court believes that Lopiano’s
proposed testimony is better addressed through a motion in limine that focuses
specifically on the two claims that will be tried: Miller’s claim that her contract was not
renewed because of her sex, and Miller’s claim that her contract was not renewed in
retaliation for her complaining about Title IX violations.11 The Court will therefore deny
UMD’s motion without prejudice.12
Based on the foregoing, and on all of the files, records, and proceedings herein,
IT IS HEREBY ORDERED THAT:
UMD’s motion for summary judgment on Annette Wiles’s claims [ECF
No. 75] is GRANTED. All of Wiles’s federal claims are DISMISSED WITH
PREJUDICE AND ON THE MERITS. All of Wiles’s state claims are
DISMISSED WITHOUT PREJUDICE FOR LACK OF JURISDICTION.
The Court notes that whether UMD in fact violated Title IX—the focus of much
of Lopiano’s expert report—is largely irrelevant to Miller’s retaliation claim. See
Buettner v. Arch Coal Sales Co., 216 F.3d 707, 714 (8th Cir. 2000) (“A finding of unlawful
retaliation . . . is not conditioned on the merits of the underlying discrimination
complaint. . . . A plaintiff need not establish the conduct which she opposed was in fact
discriminatory but rather must demonstrate a good faith, reasonable belief that the
underlying challenged conduct violated the law.”). The Court has no intention of trying
the question of whether UMD violated Title IX or permitting Lopiano or anyone else to
testify regarding that topic. Any probative value that such evidence would have on the
question of whether Miller was terminated for complaining about perceived Title IX
violations would be substantially outweighed by the danger of unfair prejudice,
confusing the issues, and wasting time. See Fed. R. Evid. 403.
The University recently asked that, prior to February 9, 2018, the Court hear
and rule upon a Daubert motion to exclude Lopiano’s anticipated trial testimony. ECF
No. 500. That request is denied in light of the fact that the Court has dismissed all of
plaintiffs’ claims save two, and the fact that the Court has already indicated at oral
argument and in this order that it does not anticipate that Lopiano will be allowed to
offer much testimony regarding the two surviving claims.
UMD’s motion for summary judgment on Jen Banford’s claims [ECF
No. 82] is GRANTED. All of Banford’s federal claims are DISMISSED
WITH PREJUDICE AND ON THE MERITS. All of Banford’s state claims
are DISMISSED WITHOUT PREJUDICE FOR LACK OF JURISDICTION.
UMD’s motion for summary judgment on Shannon Miller’s claims [ECF
No. 79] is GRANTED IN PART and DENIED IN PART. All of Miller’s
federal claims—save her Title VII discrimination and Title IX retaliation
claims—are DISMISSED WITH PREJUDICE AND ON THE MERITS. All
of Miller’s state claims are DISMISSED WITHOUT PREJUDICE FOR
LACK OF JURISDICTION.
UMD’s motion for separate trials [ECF No. 273] is DENIED AS MOOT.
UMD’s motion to exclude the expert testimony of Donna Lopiano, Ph.D.
[ECF No. 69] is DENIED WITHOUT PREJUDICE.
Dated: February 1, 2018
s/Patrick J. Schiltz
Patrick J. Schiltz
United States District Judge
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