UMD Begins Calling Witnesses on Day Six of Miller Trial

Baihly Warfield
Updated: March 15, 2018 02:08 PM

Day six of the Shannon Miller v. UMD trial saw the plaintiff rest and the defense begin to call its witnesses. Miller's legal team called 17 witnesses over more than five days of testimony. 

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Miller sued the University of Minnesota Board of Regents in 2015, alleging UMD Chancellor Lendley Black and Athletic Director Josh Berlo's decision not to renew her women's hockey coaching contract was the result of gender-based discrimination and retaliation based on complaints she'd made about Title IX compliance. 

Jen Banford

Jen Banford, former head softball coach and Miller's current domestic partner, finished her testimony Tuesday morning. 

Banford, originally from Canada, said when she told Josh Berlo she had spent $12,000 on an immigration lawyer to get her green card, he suggested she get married. 

She also said that when she told Senior Associate Athletic Director Karen Stromme that Miller had been first, Stromme said, "holy crap. I can't believe this, Jen." Banford said Stromme proceeded to tell her that she had looked into suing UMD in 2013 when she was not given an interview for the open athletic director position. 

Art Cobb

Art Cobb is a management and financial consultant at Cobb & Associates. Miller's team asked him to evaluate Miller's potential claims. 

According to Cobb's testimony, he looked factors like at Miller's historical compensation, her estimated future earnings, general inflation rates, and potential mitigation (finding new employment). For the damage period, he analyzed things such as the longevity of NCAA coaches and traditional retirement. 

In Cobb's opinion, Miller's lost compensation up to age 70 would be $2.39 million to $2.93 million. He said her lost benefits, such as retirement, disability and life insurance, could total $260,000 to $320,000. Other costs, such as eye and dental care, moving, storage and job search expenses, were around $12,140. 

Cobb said he also looked at what salary current women's hockey coach Maura Crowell was hired at and the compensation difference between Miller and Crowell. He said there is about an $87,000 difference including both salary and benefits. 

Cobb also said he looked at the University of Minnesota Board of Regents budget, UMD's budget and the UMD Athletic Department budget. He said in the context of fundraising and capital expenditures, he believes there was enough money to keep Miller on "to a reasonable degree of accounting certainty." 

"Had UMD wished to retain Coach Miller, funds could have been available," Cobb said. 

Miller's attorneys also asked Cobb to analyze the "moneyball analysis" Berlo completed to figure out what Miller was earning per win. Cobb said he found several inaccuracies, including that her total wins for the four-year period were added incorrectly. 

On cross examination, UMD's attorneys pointed out that Miller's salary would have accounted for about 14-15 percent of the women's hockey budget.

Attorney Tim Pramas also questioned why Cobb's estimated mitigation was $60,000 for the first year when Miller had earned $70,000 in her first season at UMD. Pramas also asked if Miller got a new job, wouldn't she no longer be losing benefits. Cobb said she may or she may not. 

Charles Kenyon

Miller's team's final witness was Charles Kenyon, former player Jamie (Kenyon) Plesha's father. 

He said that while Jamie had wanted to attend the University of Wisconsin-Madison, he encouraged her to come visit UMD because he had observed Coach Miller and was impressed. 

"She is a coach, and she knows this game as well as anybody," Kenyon said. 

Kenyon said in the D1 sports world, you are going to a school because of the coach and their program. 

Lisa Erwin

Vice Chancellor of Student Life Lisa Erwin was the first witness UMD called. Erwin said she meets with Chancellor Black once a week and that he is a great listener who puts students at the center. 

"He brought a vision to UMD that inspired me to want to apply there," Erwin, who came from Bemidji State, said. 

One of Erwin's duties now is Title IX coordinator; however, she did not have that title when Shannon Miller was bringing concerns forward. 

Erwin said she has also worked with Josh Berlo on a number of projects, and he has always been a "great partner" in the work." 

Tricia Bunten

Tricia Bunten, UMD's Chief Development Officer, took the stand next to address fundraising and where those donor dollars could be allocated. 

Bunten said she also enjoys reporting to Black and that he is a supportive boss who does not micromanage. 

She addressed another witness' testimony that an anonymous donor had come forward, wanting to give money in order to reinstate Shannon Miller as head women's hockey coach. 

Bunten said while a donor could give money to specifically support women's hockey coaching salaries, that donor could not legally specify a particular person for the money to go to. 

Rule 50 Motion

Before Tuesday's lunch break, Attorney Pramas asked Judge Patrick Schiltz to toss out the case because of "insufficient evidence." It is a fairly routine motion to make, and Schiltz denied it.

Schiltz said that while he feels the sex discrimination piece of the lawsuit is stronger, there is sufficient evidence on both claims for the jury to decide for itself. 

Linda Kinnear

Linda Kinnear is a former UMD Human Resources employee. She was asked to testify because she raised a red flag via email when Assistant Athletic Director Jay Finnerty requested information about nonrenewal notices for four female coaches. 

Kinnear said she wanted to make sure Berlo was aware that not renewing four female assistant coaches and no males could result in a complaint. However, she said it did not alarm her and she did not have a concern about what was happening at the university. 

She said if she had been concerned, she would not have sent the email and would have contacted HR on the Twin Cities campus. 

Jan Lowe

Next up was Jan Lowe, who has a background in vocational counseling and assessments. 

Lowe said she reviewed documents pertaining to Miller's job search after she was not renewed. She noted Miller does not have a LinkedIn profile, something that she said is advantageous in today's job market. However, one of Miller's attorneys later pointed out that most D1 women's hockey coaching jobs are not posted on LinkedIn. 

Lowe said she looked at the jobs available during the last three years and said there have been 10 D1 women's hockey coaching openings. She said Miller applied for three of them, and was not given an interview. 

Miller wiped away tears while Lowe testified about her assessment of Miller's job search. Lowe said Miller's search has been "passive" and "inadequate." She said that in the 37 months since she was not renewed, Miller has sent in 23 applications. 

Bob Nielson

Former UMD Athletic Director and football coach Bob Nielson was not in court Tuesday, but Pramas and an actor read parts of Nielson's deposition. 

Nielson told attorneys in the deposition that he and Miller got along fine and supported each other's programs. He said Miller was successful because she did a good job developing players and took a "broad brush" approach to recruiting by looking internationally. 

He said there were differences in Chancellor Kathryn Martin's and Chancellor Black's approaches to overseeing athletics. Nielson said Black was a little more removed. Where Martin was a quick decision maker, he said Black was a thoughtful decision maker. Nielson said both were involved in coaching contract and salary decisions. 

Nielson said in his deposition he never thought Miller was slacking and that the WCHA became more competitive around 2010 when other teams began putting more resources into women's hockey. 

David Jones

Day six ended with David Jones on the stand. UMD asked the forensic economist to look at win percentages and salary. 

Jones said that between the 2010-11 season and the 2013-14 season, Miller made $12,858 per win. According to his analysis, the Gophers head coach made $4,474 per win, and the Badgers head coach made $7,822 per win. 

He also assessed men's hockey coaches. Jones said for the same four-season period, Scott Sandelin was paid $13,483 per win. Among his top rivals, he was the lowest. The Gophers head coach made $22,631, the Fighting Hawks coach made $16,169 per win, the Miami of Ohio coach made $16,649, and the Western Michigan head coach got $15,435 per win. 

Jones will pick up his testimony Wednesday morning.

Judge Schiltz told the jury testimony will conclude late morning or early afternoon Wednesday. They will be sent home for the evening and come back Thursday morning for closing statements. Then, they will make their decision. 


Baihly Warfield

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