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Clausen v. National Geographic Society

October 9, 2009

ERIC CLAUSEN, PLAINTIFF,
v.
NATIONAL GEOGRAPHIC SOCIETY, NATIONAL GEOGRAPHIC SOCIETY EDUCATION FOUNDATION, NORTH DAKOTA GEOGRAPHY EDUCATION FUND, AND NORTH DAKOTA GEOGRAPHIC ALLIANCE, DEFENDANTS.



The opinion of the court was delivered by: Daniel L. Hovland, Chief Judge United States District Court

ORDER GRANTING DEFENDANTS' MOTION FOR JUDGMENT ON THE PLEADINGS

Before the Court is the Defendants' motion for judgment on the pleadings filed on April 6, 2009. See Docket No. 10. The Plaintiff filed a response in opposition to the motion on April 27, 2009. See Docket No. 14. The Defendants filed a reply brief on May 6, 2009. See Docket No. 20. For the reasons set forth below, the Court grants the Defendants' motion for judgment on the pleadings.

I. BACKGROUND

The defendant, National Geographic Society Education Foundation (NGS Foundation), is a non-profit organization that operates as a division of the defendant, National Geographic Society (NGS), which is also a non-profit organization. The mission of the NGS Foundation is to "promote geographic literacy for all children." See Docket No. 3-3. The NGS Foundation, through its Education Network grant program, provides financial support to its nationwide grassroots network. The defendant, North Dakota Geographic Alliance (ND Alliance), is the state organization that participates in the NGS Foundation's grant program.

In 1995, Minot State University (MSU) was selected as the ND Alliance host institution. The plaintiff, Eric Clausen, was chosen to serve as director of the ND Alliance. In late 1999, the NGS Foundation announced plans to phase out and terminate its formula grant funding for the nationwide geographic alliance program. See Docket No. 1-1. The NGS Foundation gave each state geographic alliance the choice to alter its programs and activities and apply for newly-developed NGS Foundation competitive grants, and/or to receive annual grants from a fund that was not yet established.

A. THE MEMORANDUM OF AGREEMENT

In 2001, the NGS Foundation and the MSU Development Foundation signed a memorandum of agreement which created the defendant, North Dakota Geography Education Fund, with the MSU Development Foundation contributing $250,000 and the NGS Foundation matching that amount. See Docket No. 3-1. The agreement contained a provision entitled "Return of Grant Funds" which states in part:

In the event the [NGS] Foundation materially breaches this Agreement by (1) failing to apply the income of the Fund for the specified purposes, or (2) failing to appropriately consider the recommendations of the advisory body as provided herein, and fails to correct such breach after 60 days written notice by [MSU Development Foundation], [MSU Development Foundation] shall have the right to receive a return of the contribution in an amount equal to the [MSU Development Foundation] original contribution amount and any accumulated and unexpended income thereon.

See Docket No. 3-1. The Memorandum of Agreement also held that a representative of the MSU Development Foundation was to be on the ND Alliance Board. See Docket No. 3-1. Clausen, who had already been serving as the ND Alliance director since 1995, also became the MSU Development Foundation representative for the ND Alliance Board in 2001. See Docket Nos. 1-1.

In 2001, the ND Alliance adopted a constitution which held, in part, that the ND Alliance publishes the ND Alliance Magazine, that the ND Alliance administrative office will be located in Minot, North Dakota, and that the MSU business office will serve as the ND Alliance fiscal manager. See Docket No. 3-2.

Clausen had made contributions to the MSU Development Foundation in the past. According to the complaint, Clausen requested that his $120,000 donation to the MSU Development Foundation be included as part of the $250,000 contribution the MSU Development Foundation was required to make to create the fund. See Docket No. 1-1. The complaint alleges that his request was based on the ND Alliance's plans to alter its programs and activities and to adopt the new constitution in 2001. See Docket No. 1-1. The complaint also alleges that Clausen contributed another $60,000 or more to the MSU Development Foundation, which upon Clausen's request, was used to benefit the ND Alliance. See Docket No. 1-1.

From 2001 to 2006, Clausen voluntarily agreed to serve as the ND Alliance director and the ND Alliance magazine editor and publisher. The complaint alleges that Clausen served in these capacities at a significantly reduced salary than what the ND Alliance had previously paid him to serve in the same positions, and that he personally paid most of his ND Alliance-related expenses. See Docket No. 1-1.

B. THE NATIONAL GEOGRAPHIC BEE

The NGS operates an annual geography competition for students in grades 4 - 8, known as the National Geographic Bee (Bee). Clausen participated in the North Dakota Bee competition as a judge or similar capacity from 1996 - 2004. The complaint alleges that the geography bee competition favors male contestants, that more than 90% of the winners are males, and that at the 2004 North Dakota Bee competition, Clausen witnessed the disappointment of female contestants. See Docket No. 1-1. The complaint further alleges that in April 2004, following the 2004 North Dakota Bee competition, Clausen complained to the NGS National Bee Coordinator about competition practices, including a failure to adequately address the National Geography standards.

The complaint alleges, in part,

42.

That in April of 2005, with almost no advance notice to the Plaintiff, at the [ND] Alliance board meeting where the [ND] Alliance grant application for its 2005-2006 Fund grant was to be approved, the NGS representative who was representing the [NGS] Foundation at the meeting, provided Plaintiff with new guidelines for [NGS] Foundation managed Fund grant applications that radically changed previous [NGS] Foundation competitive grant programs and that also required the [ND] Alliance to "advocate for better education policies and practices, including stronger alignment of geography standards with state curricular offerings and assessment" and "monitor the state curricular process and promote institutionalization of standards-based instruction, projects, and assessment across the state and in local school districts." Hereinafter referred to as the "New Guidelines".

43.

That because the [ND] Alliance had no advance notice of the 2005 grant application guideline change, the [ND] Alliance submitted in 2005 a Fund grant application that was similar to the Fund grant application it had submitted in 2004 that the [NGS] Foundation had funded without question.

44.

That in May of 2005, in response to the New Guidelines, Plaintiff personally decided to advocate for Bee changes that would provide girls with an equal opportunity to win. At the same time, Plaintiff made a $10,000 contribution to [the MSU Development Foundation] with instructions that the funds were to be added to the [NGS] Foundation managed Fund when, among other things, all NGS operated student competitions in North Dakota provided boys and girls equal opportunities to win.

45.

That in the summer of 2005, in response to the New Guidelines, Plaintiff wrote two letters to the then [NGS] Foundation director (who also served as NGS Vice President of Education and Children's Programs under which the Bee is administered) stating that Plaintiff intended to advocate for correction of the Bee gender inequity problem.

46.

That in early October of 2005, Plaintiff received a phone call from two NGS/[NGS] Foundation employees saying the [NGS] Foundation had deferred its 2005 Fund grant award to the [ND] Alliance (even though the [ND] Alliance application was similar to its 2004 application which the [NGS] Foundation had funded without question) because the 2005 application failed to adequately address the New Guidelines and that a new [ND] Alliance application had to be submitted.

47.

That Plaintiff then prepared for the [ND] Alliance board a draft grant application with a core program and budget identical to the program and budget in the 2005 grant application the [NGS] Foundation had deferred and addressed the New Guidelines requirements by offering to work with NGS to modify the Bee so girls would have an equal opportunity to win and so the Bee would better address the National Geography Standards, but that if NGS did not want to change the Bee, then the [ND] Alliance would design its own statewide student geography competition with the goals of entering into competition with the Bee and eventually replacing the Bee as North Daktoa's primary statewide student geography competition. . . .

See Docket No. 1-1. Two other ND Alliance board members drafted alternate grant applications, one of which the complaint refers to as the "Compromise Application."

C. CLAUSEN'S RESIGNATION

The complaint alleges that a ND Alliance Board conference call took place in October 2005, in which an NGS employee participated and heard Clausen say that the ND Alliance Board would not be able to honor the promises in the "Compromise Application." See Docket No. 1-1. The ND Alliance Board nonetheless approved the "Compromise Application" discussed during the conference call. Clausen then submitted both his grant application and the "Compromise Application" to the NGS Foundation. See Docket No. 1-1. The complaint contends that Clausen received an email in early December 2005 which informed him that a 2005-2006 fund grant award had been approved but did not indicate which application had been approved. See Docket No. 1-1. The complaint goes on to state that in late February 2006, Clausen was given an unsigned copy of a 2005-2006 contract for the ND Alliance grant award that had significant changes from the submitted grant applications, including the addition of a clause requiring the ND Alliance to reject a $10,000 contribution that Clausen made to the MSU Development Foundation. See Docket No. 1-1. Clausen recommended that MSU not sign the offered NGS Foundation grant contract. In early April 2006, Clausen was also informed that the NGS Foundation would only accept the contract it provided to him in February 2006. See Docket No. 1-1.

According to the complaint, Clausen informed the ND Alliance Board that he would resign if ordered to approve the NGS Foundation contract "because Plaintiff believed to do so would be to commit perjury or fraud, knowing that the offered contract was based on an application that included misrepresentations." See Docket No. 1-1. In April 2006, the ND Alliance Board ordered Clausen to "sign" the offered NGS Foundation contract. Clausen told the board that he would not approve the contract and instead was contributing another $20,000 to the MSU Development Foundation "to guarantee the Alliance core programs could continue through the 2005-2006 Alliance budget year," and that he (Clausen) would resign on August 31, 2006, when his current responsibilities were completed. See Docket No. 1-1. Clausen told the ND Alliance Board that he would reconsider his resignation and approve the contract if the board "could demonstrate to the Plaintiff's satisfaction that the Alliance had the ability to (and would) honor the Alliance board promises" made in the "Compromise Application" and included in the NGS Foundation's contract. See Docket No. 1-1.

In June 2006, Clausen informed MSU and the MSU Development Foundation that he would resign as the ND Alliance director when his current responsibilities were completed, but he would remain as the MSU Development Foundation representative on the ND Alliance Board.

The complaint alleges that in early 2007, per Clausen's request, the MSU Development Foundation administrator entered into discussions with the NGS Foundation to determine if the NGS Foundation would return funds as provided in the Memorandum of Agreement creating the fund. See Docket No. 1-1. In May 2007, Clausen resigned as the MSU Development Foundation representative on the ND Alliance Board. A new ND Alliance Constitution was approved on February 8, 2008, which eliminated, among other things, all mention of the ND Alliance magazine, and moved the provision stating that the ND Alliance be based in Minot, North Dakota to the ND Alliance By-Laws. See Docket Nos. 1-1 and 3-6.

Clausen asserts that (1) the NGS Foundation breached its obligations to him in relation to the operation and management of the Fund; (2) the NGS Foundation breached its obligations to the Fund and the ND Alliance under the Memorandum of Agreement Creating the Fund; (3) the Defendants materially breached the Memorandum of Agreement Creating the Fund; and (4) the NGS, the NGS Foundation, and the ND Alliance retaliated against Clausen for complaining about the gender discrimination of the Bee, thus violating Title IX and state laws.

Pursuant to Rule 12(c) of the Federal Rules of Civil Procedure, the Defendants request judgment on the pleadings and a dismissal of the action in its entirety. The Defendants contend that Clausen lacks standing to pursue the Title IX, breach of contract, state law discrimination, and fraud claims. The Defendants further contend that Clausen's state law retaliation claims are barred by the ...


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