The Supreme Court of North Dakota has affirmed a lower court ruling that North Dakota State University’s former sports information director “could not prove NDSU intentionally discriminated against him on the basis of age in violation of the Human Rights Act” after NDSU’s staff personnel board found that he was “properly terminated for cause.”
Plaintiff George A. Ellis had appealed from the district court’s judgment entered in August 2009, which dismissed his complaint with prejudice, and the district court’s memorandum opinion and order entered December 2009 denying his motion to modify the prior judgment. On appeal, he had argued that the staff personnel board did not have subject matter jurisdiction to hear his North Dakota Human Rights Act claim, that instead it should be heard by the district court.
Ellis began working as the sports information director for NDSU in 1974. Fifteen years after his hire, in 1989, the school hired Jeff Schwartz as its women’s sports information director, effectively splitting Ellis’s responsibility in two.
In July 2001, NDSU hired Gene Taylor as athletic director after the previous athletic director had resigned. Before Taylor was hired, Lynn Dorn, who was the women’s athletic director, served as interim athletic director for approximately six months.
While acting as interim athletic director, Dorn asked the athletic department employees to provide her with a list of accomplishments and goals, according to the court. In spring 2001, Dorn met with Ellis. During this meeting, Dorn allegedly asked Ellis how old he was, what his retirement plans were, and if he was seeking other employment. Ellis claimed that Dorn also asked if he had any retirement plans and told him to begin looking for other employment because NDSU was going to Division I status and he would not be part of their future plans. At that time, Ellis was in his mid-fifties and had no plans to retire. Dorn testified she made no similar inquiries of other athletic employees regarding their age or retirement plans. Upon Taylor’s arrival as athletic director, he met with Dorn. Taylor testified that when he met with Dorn, she told him about frustrations that had been raised regarding the sports information department, including both the men’s and women’s sports information directors.
During Taylor’s second year at NDSU in 2002-03, Taylor assigned Troy Goergen, assistant athletic director for marketing, to supervise Ellis and Schwartz in the sports information department, according to the court. Goergen was in his late 20s at the time and had no prior experience working in the sports information department. Goergen was to be the ‘go-between’ with the coaches and the sports information directors, including communications with the coaches if any of the sports information director deadlines were not met. Taylor also gave Goergen the responsibility of conducting performance evaluations of Ellis and Schwartz.
Taylor began the process to terminate Ellis in January 2004. in addition to the dissatisfaction of men’s head coaches, the grounds for Ellis’s termination included his failure to meet several media guide deadlines and his absence from sports information department meetings. Ellis was fired that spring.
The sports information department was “reorganized” after Ellis’s termination. Before Ellis’s termination, the department consisted of four people: the men’s sports information director, the women’s sports information director, and two part-time graduate assistants. The reorganization left a staff of five, with the addition of a third full-time position.
After his termination, Ellis, with counsel, appealed his dismissal to NDSU’s staff personnel board under Section 231 of NDSU’s Policy Manual, and a hearing was held before the board. “According to the combined notice of hearing, specifications of issues and pre-hearing order, the issue before the staff personnel board was whether Ellis’s termination for cause was supported by a preponderance of the evidence. After a hearing on Dec. 14, 2004, and Jan. 25, 2005, the board concluded Ellis’s termination was supported by a preponderance of the evidence.”
After exhausting his administrative remedies through NDSU’s internal appeals process, Ellis commenced a lawsuit in district court against NDSU for violation of the North Dakota Human Rights Act, specifically alleging age and disability discrimination. Before trial, NDSU twice moved for summary judgment. The court denied NDSU’s motions, concluding that Ellis had offered evidence sufficient to establish a prima facie case of discrimination.
After a bench trial in October 2006, the district court entered judgment for Ellis. The court concluded NDSU “had intentionally discriminated against Ellis because of his age when it terminated his employment.”
NDSU appealed.
In a 3-2 decision favoring the university, the state’s high court suggested that the lower court should not have disturbed the decision of the staff personnel board, which has authority under the state’s Board of Higher Education. Rather, it should have reviewed the staff personnel board’s prior decision under the standard elucidated in Peterson v. North Dakota Univ. Sys., 2004 ND 82, 678 N.W.2d 163. Ellis I, 2009 ND 59, 764 N.W.2d 192, PP 44-45. The case was remanded to the lower court.
On remand, the district court issued a memorandum opinion and order dismissing Ellis’s complaint. “The district court explained NDSU’s staff personnel board ‘made factual findings that the records indicated a pattern of repeated and continuous performance concerns over a period of ten years,’” wrote the Supreme Court. “During oral argument before the district court, Ellis conceded a reasoning mind could have reached the conclusions reached by the staff personnel board.”
Nevertheless, Ellis appealed, maintaining NDSU’s reasons for his termination were pretextual. Once again, he was unsuccessful.
“While the district court always had original jurisdiction to hear Ellis’s Human Rights Act claim, the staff personnel board’s factual finding that Ellis was properly terminated for cause caused his Human Rights Act claim to fail.
“Our (previous decision) that the district court must apply the Peterson standard of review to the staff personnel board’s factual findings when considering Ellis’s Human Rights Act claim, became the law of the case. On this subsequent appeal, we will not decide the matter differently.”
George A. Ellis v. North Dakota State University; S.Ct.N.D.; No. 20090313, 2010 ND 114; 2010 N.D. LEXIS 114; 6/17/10
Attorneys of Record: (for plaintiff) Sara K. Sorenson, West Fargo, ND. (for defendant) Tag Christian Anderson, Assistant Attorney General, Bismarck, ND