U fights sanction in coach's bias suit

  • Article by: ABBY SIMONS , Star Tribune
  • Updated: January 15, 2013 - 9:28 PM

Lawyers say there was no proof that data on phone was pertinent in case involving ex-golf coach Kathryn Brenny.

A former golf coach's two-year-old discrimination lawsuit against the University of Minnesota returned to court Tuesday as attorneys for the school argued against paying a $5,000 punishment for erasing data from a cellphone that may have contained evidence in the case.

The move marked the latest procedural battle in the case of Kathryn Brenny, who sued the U and then-golf director John Harris in January 2011, alleging that Harris stripped her of her duties as soon as she began her job as associate golf coach and he discovered she was a lesbian. The suit says the U and Harris violated her rights as a member of a protected class under the state Human Rights Act.

The U denies the claims, saying Brenny knew what the duties of position entailed when she applied for the job. The Minnesota Court of Appeals last year dismissed Harris as a defendant in the case.

A specially appointed judge ruled last month that the University of Minnesota should pay Brenny's attorneys $5,000 in legal fees for wiping data from Harris' university-issued cellphone in July 2011 before they could examine the device.

On Tuesday, U associate general counsel Brent Benrud asked Hennepin District Judge William Howard to reverse the sanction, arguing that there was no proof that Harris' cellphone contained text messages relevant to the case before it was accidentally wiped. The claim drew an incredulous response from Howard, who said he was troubled by the disparity in the handling of Brenny's and Harris' work-issue phones.

"I think there's at least a contradiction that you saved her cellphone and, when pressed, gave it over, but Harris' cellphone was wiped clean even though he was a litigant in the case," Howard said.

A judge last month threw out Brenny's claims of sexual harassment, gender discrimination and retaliation, leaving the sexual orientation portion of the suit intact.

Brenny, 32, a Little Falls native and former state high school golf champion who moved across the country to take the position, eventually quit and now lives in New York.

Brenny's attorney, Donald Chance Mark Jr., said he first asked the U to preserve evidence in the case in December 2010, a month before the lawsuit was filed. The university objected to requests for text messages from Harris' phone for 15 months, saying they were overbroad or already fulfilled, but did not mention that the phone was wiped clean and issued to another athletic department employee. Mark did not learn the phone had been wiped until this past September.

"This is as clear an example of the destruction of evidence as I've seen," Mark said in court Tuesday.

Benrud said that the U searched Harris' phone after they initially received the request from Brenny's attorneys, and did not find any information related to Brenny or her claims. He said he agreed that the phone should have been kept, but said a lower-level employee "went through the checklist and wiped the phone" before it was issued to another employee. Still, he said, it did not constitute the intentional destruction of evidence.

Howard will rule on whether to impose the $5,000 sanction later. A civil trial is scheduled for April 29.

Abby Simons • 612-673-4921

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