Ellis v. North Dakota State University

• Decision Date: 09 April 2009
• Docket Number: No. 20070005.,20070005.
• Citation: 2009 ND 59,764 N.W.2d 192
• Parties: George A. ELLIS, Plaintiff and Appellee v. NORTH DAKOTA STATE UNIVERSITY, Defendant and Appellant.
• Court: North Dakota Supreme Court

764 N.W.2d 192

2009 ND 59

George A. ELLIS, Plaintiff and Appellee v. NORTH DAKOTA STATE UNIVERSITY, Defendant and Appellant.

No. 20070005.

Supreme Court of North Dakota.

April 9, 2009.

Thomas D. Fiebiger (argued), Fargo, ND, and Patricia R. Monson (on brief), Minneapolis, MN, for plaintiff and appellee.

Tag Christian Anderson, Assistant Attorney General, Office of Attorney General, Bismarck, ND, for defendant and appellant.

VANDE WALLE, Chief Justice.

[¶ 1] North Dakota State University ("NDSU") appealed from a district court judgment finding NDSU engaged in age discrimination in terminating Ellis's employment and awarding him $256,206.16, which includes back pay, front pay, costs and disbursements, prejudgment interest, and attorney fees. After oral argument one of the Justices recused. The Court ordered a rehearing. We conclude the district court erred in its standard of review and we reverse and remand for further proceedings.

I

[¶ 2] In 1974, George Ellis began working as the sports information director for NDSU. On June 30, 2004, NDSU terminated Ellis from this position after 30 years of employment. Ellis was 59 years old at the time of his termination. As sports information director, Ellis's responsibilities included disseminating information to the media; preparing news releases; designing media guidebooks, game programs, and special publications; managing home and away events, tournaments, office administration; and compiling statistics and biographical information on athletes and coaches. Ellis was also the sports information director for the North Central Conference ("NCC") from 1972 to 1998.

[¶ 3] Ellis testified he received numerous national awards while working at NDSU, including induction into the College Sports Information Directors of America Hall of Fame and the NCC Hall of Fame. Ellis also received the Warren Bird Award for Outstanding Service in the Field of Sports Information. Ellis testified he received in excess of 135 national awards for publications he had designed, including 56 "best in the nation" awards. During his last two years at NDSU, Ellis received "best in the nation" awards for his football program cover and his basketball program and second in the nation for the football program. In about 1989, the sports information director responsibilities were divided between Ellis and Jeff Schwartz, after Schwartz was hired as the women's sports information director. Schwartz was 32 years old when he was hired.

[¶ 4] 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. 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.

[¶ 5] 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 twenties 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.

[¶ 6] 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, speaking with NDSU's human resources director. According to Taylor, in addition to the dissatisfaction of men's head coaches, the grounds for Ellis's termination included Ellis's failure to meet several media guide deadlines and his absence from sports information department meetings. On April 29, 2004, Ellis was notified of his dismissal during a meeting with Taylor and Goergen.

[¶ 7] After Ellis's termination, the sports information department was reorganized in October 2004. 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 resulted in a staff of five, with the addition of a third full-time position. Before the reorganization, Ellis was responsible for the men's sports, including football, basketball, wrestling, baseball, golf, track and field, and cross country. Schwartz was responsible for six women's sports. After the reorganization, Schwartz became the director of athletic media relations. The reorganization also included hiring a 26-year-old graduate assistant as assistant director of athletic media relations at an annual salary of $25,000, and another former graduate assistant who was 26 years old, as a new full-time athletic media relations assistant at an annual salary of $22,000 per year.

[¶ 8] As part of the department's reorganization, Schwartz was assigned football, women's basketball and women's softball; the assistant director of athletic media relations was assigned volleyball, men's basketball, and baseball; and the athletic media relations assistant was assigned soccer, cross country, and track and field. A graduate assistant had responsibility for golf and wrestling. Testimony indicated this reorganization was structured in a manner that Ellis had suggested to Taylor on several occasions.

[¶ 9] 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.

[¶ 10] 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 Ellis had offered evidence sufficient to establish a prima facie case of discrimination.

[¶ 11] After a bench trial in October 2006, the district court issued findings of fact, conclusions of law and order for judgment in favor of 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. The order awarded Ellis back pay of $55,883.66 from the date of the complaint was filed, two years of front pay in the amount of $98,861.26, plus attorney fees and costs and prejudgment interest.

[¶ 12] Ellis sought attorney fees and costs in the amount of $96,007.50, and the court awarded Ellis's fees and costs in the amount requested. On November 20, 2006, judgment was entered in favor of Ellis in the amount of $256,206.16.

II

[¶ 13] On appeal, NDSU argues Ellis's action was not commenced within the applicable statute of limitations. The district court, however, concluded equitable estoppel applied to toll the statute of limitations, and Ellis's initiation of the lawsuit was therefore timely.

[¶ 14] Generally, "[a]bsent valid service of process, even actual knowledge of the existence of a lawsuit is insufficient to effectuate personal jurisdiction over a defendant." Muhammed v. Welch, 2004 ND 46, ¶ 11, 675 N.W.2d 402; see also Riemers v. State, 2006 ND 162, ¶ 7, 718 N.W.2d 566.

[¶ 15] Under N.D.C.C. § 14-02.4-19 (2004), "[a]ny person claiming to be aggrieved by any discriminatory practice . . . in violation of this chapter may file a complaint of discriminatory practice with the department or may bring an action in the district court . . . within three hundred days of the alleged act of wrongdoing." Further, under N.D.C.C. § 32-12.2-04(5), a person bringing a legal action against the State must also deliver a copy of the summons and complaint to the director of the office of management and budget at the time the summons and complaint is served in the action.

[¶ 16] Here, NDSU terminated Ellis as sports information director on June 30, 2004. The parties do not dispute that Ellis personally served NDSU's president, Joseph Chapman, with a copy of the summons and complaint on April 29, 2005, two days after the 300-day statutory period expired. The district court, however, held NDSU was equitably estopped from asserting the statute of limitations...