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Cuozzo v. State

Supreme Court of North Dakota

April 11, 2019

Dr. Frank P. Cuozzo, Plaintiff and Appellant
v.
State of North Dakota d/b/a University of North Dakota, and its President, Mark R. Kennedy, Defendants and Appellees

          Appeal from the District Court of Grand Forks County, Northeast Central Judicial District, the Honorable Jay D. Knudson, Judge.

          Leo F.J. Wilking, Fargo, ND, for plaintiff and appellant.

          Courtney R. Titus (argued) and Matthew A. Sagsveen (appeared), Office of Attorney General, Bismarck, ND, for defendants and appellees.

          OPINION

          CROTHERS, JUSTICE.

         [¶1] Frank Cuozzo appeals from a judgment dismissing his breach of contract action against the State, doing business as the University of North Dakota (UND), and its president Mark Kennedy. We affirm the judgment, concluding Kennedy substantially complied with his contractual obligations in terminating Cuozzo's employment.

         I

         [¶2] Cuozzo was a tenured faculty member in UND's Anthropology Department. After failing to inform his department of convictions for driving under the influence and driving with a revoked license, Cuozzo was placed on a performance improvement plan which he subsequently violated. On January 30, 2017, Cuozzo was terminated from his position and he filed a formal grievance. The Standing Committee on Faculty Rights held a hearing and issued a four-page report finding there was clear and convincing evidence of adequate cause to terminate Cuozzo, but recommending that he be allowed to resign instead of being terminated for cause. The Standing Committee submitted its findings and conclusions to Kennedy.

         [¶3] Four days after receiving the report, Kennedy wrote a letter to Cuozzo stating:

"I have carefully reviewed the Standing Committee on Faculty Rights (SCoFR) report in the matter of your appeal of the University's decision to terminate you for adequate cause. I value and respect the time and effort of the SCoFR members in reviewing this matter, and I appreciate their service to the University.
"The committee voted unanimously that the University provided clear and convincing evidence, overall, to substantiate your dismissal with cause. I am upholding the University's initial decision to terminate you for adequate cause.
"My decision is final and this matter is now concluded."

         [¶4] Cuozzo responded to Kennedy's letter and complained about "such a quick decision," alleging Kennedy failed to comply with the UND Faculty Handbook relating to dismissals which stated "[t]he president shall make a decision and provide written notice of the decision, including findings of fact and reasons or conclusions based on the hearing record." Kennedy replied to Cuozzo's complaint in an email:

"I am writing in response to your May 24, 2017 letter, which you provided as a written response to my decision to uphold the University's decision to terminate you for adequate cause.
"I fully considered the Standing Committee on Faculty Rights (SCoFR) report. As stated in my May 16, 2017 letter, the committee voted unanimously that the University provided clear and convincing evidence, overall, to substantiate your dismissal with cause. I relied on this finding of SCoFR in my decision to uphold the University's initial decision to terminate your [sic] for adequate cause. A finding that your behavior amounted to adequate cause for termination warrants a termination, not a resignation.
"My decision is final and this matter is now concluded. Please do not use UND letterhead for any future ...

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