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Ellis v. North Dakota State University

June 17, 2010

GEORGE A. ELLIS, PLAINTIFF AND APPELLANT
v.
NORTH DAKOTA STATE UNIVERSITY, DEFENDANT AND APPELLEE



Appeal from the District Court of Cass County, East Central Judicial District, the Honorable Steven L. Marquart, Judge.

The opinion of the court was delivered by: VandeWalle, Chief Justice

AFFIRMED.

[¶1] George A. Ellis appealed from the district court's judgment entered in August 2009 dismissing 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, Ellis argues North Dakota State University ("NDSU")'s staff personnel board did not have subject matter jurisdiction to hear his North Dakota Human Rights Act claim. We affirm, concluding the district court properly applied Ellis v. N.D. State Univ., 2009 ND 59, 764 N.W.2d 192 ("Ellis I").

I.

[¶2] The facts underlying this appeal are explained in Ellis I. Upon being terminated from his position as NDSU's sports information director, Ellis appealed his termination to NDSU's staff personnel board. Ellis I, 2009 ND 59, ¶¶ 1, 9, 764 N.W.2d 192. After a hearing, the board determined Ellis's termination for cause was supported by a preponderance of the evidence. Id. at ¶ 9. Ellis exhausted his administrative remedies, and then sued NDSU in district court for violating the Human Rights Act. Id. at ¶ 10. Following a bench trial, the district court found in Ellis's favor, concluding NDSU had intentionally discriminated against Ellis because of his age. Id. at ¶ 11. The district court gave no deference to the staff personnel board's factual findings. Id. at ¶ 27. In a majority opinion, this Court reversed the district court's judgment.

[¶3] In Ellis I, we took note that the Board of Higher Education has the constitutional authority to administer the institutions under its control, including dismissing employees. Id. at ¶ 32. The Board also has the power to delegate those duties. Id. The authority exercised by NDSU's staff personnel board was, therefore, the constitutional authority of the Board. Id. Reconciling the Board's constitutional authority and the Human Rights Act, we observed, "We are doubtful that a legislative enactment can supersede the constitutional authority of the Board of Higher Education to hire and discharge its employees, regardless of the laudable purpose for which the statute was enacted and regardless of the desire to apply the act to all employees." Id. at ¶ 39.

[¶4] This Court held the district court 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, ¶¶ 44-45, 764 N.W.2d 192. We explained:

However, in balancing the constitutional authority of the Board to appoint and remove faculty, the constitutional authority of the legislature, and the constitutional limits of review by the judicial branch under the separation of powers concepts, we apply the Peterson procedure and standard of review to these proceedings under the Human Rights Act. This approach gives consideration to the authority of each of the constitutional entities. It recognizes the constitutional authority of the Board of Higher Education to remove faculty; it recognizes the constitutional authority of the legislative branch to enact laws generally for all citizens and it provides for review, although limited, by the judicial branch.

. . . Thus, rather than totally disregarding the proceedings conducted under the policies of the Board of Higher Education and trying the case in district court as if those proceedings had never taken place, the procedure and standard of review we applied in Peterson appropriately balances the constitutional authority and power of the involved entities.

Id. We stated in Peterson:

Nonetheless, recognizing the separation of powers doctrine, we conclude judicial review similar to that provided in appeals from administrative agency decisions is appropriate in this case. In reviewing factual findings from administrative agencies we have held, "we do not make independent findings of fact or substitute our judgment for that of the agency. We determine only whether a reasoning mind reasonably could have determined that the factual conclusions reached were proved by the weight of the evidence." See Power Fuels, Inc. v. Elkin, 283 N.W.2d 214, 220 (N.D. 1979).

Id. at ¶ 36 (quoting Peterson, at ¶ 14). This Court "reverse[d] the judgment and remand[ed] this matter to the district court to apply the Peterson standard of review to the record made during the institutional discharge proceedings." Id. at ¶ 46.

[¶5] 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." During oral argument before the district court, Ellis conceded a reasoning mind could have reached the conclusions reached by the staff personnel board. Ellis argued the district court could still decide NDSU's reasons for his termination were pretextual. The district court responded:

Mr. Ellis would be unable to prove a pretext claim without proving the stated reasons for termination set forth by the University were false. Here, the staff personnel board found that the alleged deficiency in Mr. Ellis' job performance was true, and this Court having found that reasonable ...


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