Cuozzo v. State

• Decision Date: 11 April 2019
• Docket Number: No. 20180337,20180337
• Citation: 925 N.W.2d 752
• Parties: 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
• Court: North Dakota Supreme Court

925 N.W.2d 752

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

No. 20180337

Supreme Court of North Dakota.

Filed April 11, 2019

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.

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 communications."

[¶5] Cuozzo sued UND and Kennedy claiming they breached his employment contract because Kennedy failed to review the hearing record and make his own findings and conclusions. On cross-motions for judgment on the pleadings, the district court dismissed the action, concluding as a matter of law that UND and Kennedy substantially complied with their obligations under the employment contract and, even if they had not complied, that Cuozzo would be unable to establish any damages resulted from the alleged breach.

II

[¶6] Cuozzo argues the district court erred in ruling UND and Kennedy substantially complied with their obligations under the employment contract.

[¶7] Because the parties and the court relied on matters outside the pleadings, we treat the motions for judgment on the pleadings under N.D.R.Civ.P. 12(b)(6) as motions for summary judgment under N.D.R.Civ.P. 56. See, e.g. , Mills v. City of Grand Forks , 2012 ND 56, ¶ 7, 813 N.W.2d 574. The standard for reviewing summary judgments is well established:

"Summary judgment is a procedural device under N.D.R.Civ.P. 56(c) for promptly resolving a controversy on the merits without a trial if there are no genuine issues of material fact or inferences that can reasonably be drawn from undisputed facts, or if the only issues to be resolved are questions of law. The party seeking summary judgment must demonstrate there are no genuine issues of material fact and the case is appropriate for judgment as a matter of law. In deciding whether the district court appropriately granted summary judgment, we view the evidence in the light most favorable to the opposing party, giving that party the benefit of all favorable inferences which can reasonably be drawn from the record. A party opposing a motion for summary judgment cannot simply rely on the pleadings or on unsupported conclusory allegations. Rather, a party opposing a summary judgment motion must present competent admissible evidence by affidavit or other comparable means that raises an issue of material fact and must, if appropriate, draw the court’s attention to relevant evidence in the record raising an issue of material fact. When reasonable persons can reach only one conclusion from the evidence, a question of fact may become a matter of law for the court to decide. A district court’s decision on summary judgment is a question of law that we review de novo on the record."

Dahms v. Nodak Mut. Ins. Co. , 2018 ND 263, ¶ 6, 920 N.W.2d 293 (quoting Pettinger v. Carroll , 2018 ND 140, ¶ 7, 912 N.W.2d 305 ).

[¶8] Termination of university faculty members is governed by Board of Higher Education policies, rules and regulations adopted as part of its policy manual, and those provisions are part of the employment contract between the institution and the faculty member. See, e.g. , Ellis v. N.D. State Univ. , 2009 ND 59, ¶ 36, 764 N.W.2d 192 ; Sacchini v. Dickinson State Coll. , 338 N.W.2d 81, 84 (N.D. 1983). Interpretation of a written contract to determine its legal effect is a question of law, and "summary judgment is proper only when a case involves contract interpretation and no genuine issues of material fact exist." Stensrud v. Mayville State Coll. , 368 N.W.2d 519, 521 (N.D. 1985). The Board of Higher Education policy at issue, § 605.4(11), which is identical to its corresponding provision in the UND Faculty Handbook, provides:

"11. The Committee’s findings of fact, conclusions and recommendations, with supporting reasons, shall be reported, in writing, to the institution’s president and the faculty member or the faculty member’s representative. If the institution’s action was a notice of dismissal and if the Committee concludes that adequate cause for dismissal has been established, but that a lesser penalty would be more appropriate, it may so recommend with supporting reasons. The 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, to the Committee and the faculty member within twenty calendar days of receiving the report. The faculty member or Committee may, within ten calendar days of the decision, submit a written response to the decision, to which the president may reply."

(Emphasis added.) Cuozzo does not argue that UND produced insufficient evidence to terminate him for cause or that Kennedy erred in not allowing him to resign. Rather, he contends his employment contract was breached because Kennedy failed to review the hearing record and make his own findings and conclusions.

[¶9] Generally, substantial compliance with the procedural requirements for termination is sufficient if their purpose is fulfilled. See Hom v. State , 459 N.W.2d 823, 824-25 (N.D. 1990) ; Smith v. State , 389 N.W.2d 808, 810 (N.D. 1986) ; Stensrud , 368 N.W.2d at 522. " ‘While exact conformance with the precise terms of the termination procedures is doubtless the least controversial course, so long as the substantial interests those procedures are designed to safeguard are in fact satisfied and protected, failure to conform to every technical detail of the termination procedure is not actionable.’ " Stensrud , at 522, (quoting Piacitelli v. S. Utah State Coll. , 636 P.2d 1063, 1067 (Utah 1981) ).

[¶10] In Stensrud a probationary nontenured instructor was terminated from employment. 368 N.W.2d at 520. Stensrud asserted the college failed to comply with a policy requiring the college president to notify her in writing of the termination. Id. at 522. Noting the purpose of the regulation was for the president to notify her of the termination so she could implement subsequent procedural rights, we held substantial compliance occurred because the president met personally with her, discussed the reasons for her termination, and she availed herself of all subsequent procedural rights. Id. at 522-23.

[¶11] In Smith a terminated university professor claimed noncompliance with her department’s evaluation procedures which required evaluations be given at the end of each semester, and her second evaluation occurred earlier. 389 N.W.2d at 810. This Court determined the purpose of the evaluation procedure was to inform faculty members of their performance and provide the university relevant information on whether a faculty member should be renewed, and substantial compliance occurred because no evidence showed the professor "was not apprised of her job performance because of the timing of the evaluations." Id.

[¶12] By contrast, in Hom a regulation required that a faculty member be given written reasons for a decision to terminate...