State Supreme Court Sides with University in Dispute Involving Athletic Official

Jun 5, 2009

North Dakota State University secured a key legal victory in April when the North Dakota Supreme Court reversed the finding of a lower court that NDSU had discriminated against its sports information director when it fired him, and remanded the claim back to the lower court for future consideration.
The high court did not consider the merits of the case, finding instead that the lower court erred by allowing the wrongful termination claim to be proceed under the state human rights law.
George 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’ 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.
The court went on to write that “while acting as interim athletic director, Dorn asked the athletic department employees to provide her with a list of accomplishments and goals. In spring 2001, Dorn met with Ellis. During this meeting, Dorn asked Ellis how old he was, what his retirement plans were, and if he was seeking other employment. Ellis testified 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 2002-2003, Taylor assigned Troy Goergen, assistant athletic director for marketing, to supervise Ellis and Schwartz in the sports information department. 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.
“Based upon continuing complaints from the men’s head coaches and alleged deficiencies in Ellis’s job performance, 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’ 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 December 14, 2004, and January 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 this 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, but rejected Ellis’s claims of discrimination based upon disability. The court also concluded NDSU was equitably estopped from asserting a statute of limitations defense and awarded damages to Ellis, including back pay, front pay, costs and disbursements, prejudgment interest and attorney fees in the amount of $256,206.16.
NDSU appealed.
In a 3-2 decision favoring the university, the majority 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. It went on to suggest that the court had tried the case in district court “as if those proceedings had never taken place.”
In the dissent, Justice Carol Ronning Kapsner called the other justices’ reading of the higher education board’s constitutional authority “expansive,” adding “I do not believe the constitutional status of the Board (of Higher Education) can be interpreted to grant unfettered discretion in all employment matters.”
In a statement, Tom Fiebiger, Ellis’ attorney, said hew was “disappointed for George Ellis and, quite frankly, for all other university employees who are going to find themselves now with less rights because of this decision.”
George A. Ellis v. North Dakota State University; S.Ct.N.D.; No. 20070005
Attorneys of Record: (for plaintiff) Thomas D. Fiebiger and Patricia R. Monson, Minneapolis, MN. (for defendant) Tag Christian Anderson, Assistant Attorney General, Bismarck, ND


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