Groenewold v. Kelley, 16-4019

Decision Date24 April 2018
Docket NumberNo. 16-4019,16-4019
Citation888 F.3d 365
Parties Gerald H. GROENEWOLD, Ph.D., Plaintiff–Appellant v. Robert O. KELLEY, Ph.D., president of the University of North Dakota, an institution within the North Dakota University System, in his individual capacity and alternatively and consecutively, in his official capacity; North Dakota State Board of Higher Education, an entity of state statutory and constitutional dimension, which sets policy for all colleges and universities within the North Dakota University System, Defendants–Appellees
CourtU.S. Court of Appeals — Eighth Circuit

David Clark Thompson, DAVID C. THOMPSON, P.C., Grand Forks, ND, for PlaintiffAppellant.

Sara Gullickson McGrane, FELHABER & LARSON, Minneapolis, MN, for DefendantAppellee.

Before WOLLMAN, LOKEN, and MELLOY, Circuit Judges.

WOLLMAN, Circuit Judge.

Gerald Groenewold, Ph.D., former Director of the Energy and Environmental Research Center (the Center) at the University of North Dakota (University) sued University President Robert O. Kelley, Ph.D., in his individual and official capacities and the North Dakota State Board of Higher Education (Board), challenging the termination of his employment. Dr. Groenewold claimed that defendants retaliated against him for exercising his First Amendment free speech rights and violated his Fourteenth Amendment due process rights. The district court1 granted defendants' motion to dismiss, holding that Dr. Groenewold failed to allege a constitutional violation. We conclude, based on the facts assumed by the district court, that the motion was properly granted.

I. Background

Dr. Groenewold began working full-time for the University in 1983. He served as the director of the Center from 1987 until his termination in 2014. Dr. Groenewold had a good working relationship with the University's presidents until 2010, when conflict arose with President Kelley, who had become president in 2008.

In August 2010, Dr. Groenewold received a disciplinary letter from President Kelley regarding negative statements that Dr. Groenewold had allegedly made about other University employees. The letter stated that Dr. Groenewold's "continued expressions of contempt [for others] will result in disciplinary action, including possible dismissal from the University of North Dakota." Dr. Groenewold apologized for making inappropriate personal comments, but refused to sign the letter. President Kelley withdrew his threat to dismiss Dr. Groenewold.

In May 2011, the University unilaterally changed its agreement with the Center's Foundation so that ten percent of the Center's licensing revenue would be deposited into the University's general funding, rather than being sent directly to the Center. The Center's Foundation contested the change, resulting in tension between the Foundation and the University. Dr. Groenewold contends that he tried to be a "broker" between the President's office and the Foundation, a role that "often caused difficulty in his relationship with [President] Kelley."

Another dispute arose later that year when both the Center and the University's athletic department wanted to acquire the same piece of real estate. Because neither entity had the financial resources to pay for demolition of the property's existing structures, the decision about who would obtain the property was deferred to President Kelley. A North Dakota state legislator familiar with the situation introduced a bill that would require the University's president to defer to the director of the Center in his decision making, essentially giving "Dr. Groenewold a right of first refusal to the use of real estate." Upon learning about the bill, President Kelley threatened to terminate Dr. Groenewold for insubordination and drafted a termination letter that was never completed or delivered. Dr. Groenewold denied having had any involvement with the bill.

In 2013, Dr. Groenewold failed to timely report the Center's budget deficit to President Kelley. Under the Board's policy, the University is required to report any budget variances or deficits of more than four percent twice each year (once in January and once in June). In January 2013, Center Associate Director Tom Erickson proposed submitting a report anticipating a five to ten percent budget deficit, which he expected to materialize by June 2013. Dr. Groenewold rejected Erickson's proposal and did not submit a report, believing that he would be able to eliminate the deficit by completing a number of projects. The projects remained incomplete five weeks after the reporting deadline, whereupon Dr. Groenewold reported the deficit to President Kelley.

The Center was still experiencing budget shortfalls in 2014. Associate Director Erickson drafted a memorandum to President Kelley outlining how much money it would take to make the Center whole. Dr. Groenewold also made requests from January 2014 through April 2014 to discuss the issue with President Kelley, all of which Kelley declined.

On April 16, 2014, the Board's Budget and Finance Committee held a meeting to discuss the Center's budget. The University's Vice President of Finance stated that President Kelley had yet to act on the issue because it had "broader financial implications for the university." The next day, the Grand Forks Herald reported that the Center had had a deficit every year since 2010 and that the Board's Budget Committee Chairman Duaine Espegard was displeased with the Center. According to the article, Espegard opined that the Center has "got to make some changes."

Dr. Groenewold was aware of a Board policy prohibiting University employees from presenting issues to the full Board or any committee thereof without first going through the President. Notwithstanding that knowledge, he called Espegard to discuss the University's requirement that the Center be responsible for its own legal fees and the conflict regarding the allocation of the University's funding, as well as "to seek his advice as to how best to elevate his perspective on the matter to the attention of the [Board]." Espegard was unavailable at the moment, but promised to call Dr. Groenewold the following week to set up a meeting. Dr. Groenewold then sent Espegard an email, with a copy to President Kelley, stating in part, "We are appreciative of your request to visit with us regarding [the Center's] financials. We are hoping that you find time next week to do so." Espegard did not meet with Dr. Groenewold and instead sent him the following message via email:

Please understand that I or (sic) the committee did not request a meeting to discuss your financials. The only communication with the [Center] was your phone call last Friday requesting that I visit. The budget committee, of which I am chair, has requested that the University provide a plan to eliminate the variance that is reported. It is not the boards (sic) duty or responsibility to get involved in the management of your department.

Espegard also contacted President Kelley and the University Chancellor to inform them of his communications with Dr. Groenewold. By memorandum dated April 28, 2014, Dr. Groenewold informed President Kelley that he wanted to speak with Espegard to clarify information from the newspaper article. Dr. Groenewold received a letter from President Kelley one week later informing him that he was being placed on administrative leave.

On May 23, 2014, President Kelley sent Dr. Groenewold a second letter stating that it was his intention to dismiss him for cause and setting forth the following reasons: that Dr. Groenewold deliberately provided false information regarding the Center to the University; that he withheld material information regarding the Center from the University; that he directed Center employees to submit materially false information regarding the Center to the University; that he deliberately provided false and misleading information for Center employees and the public regarding the University's financial support of the Center; that he created an inappropriate and abusive work environment; that he engaged in discriminatory conduct toward one of the University's Vice Presidents; that he acted fiscally irresponsible; that he was untruthful with President Kelley; and that he was insubordinate. The letter set forth twenty-five examples of Dr. Groenewold's alleged behavior. Finally, the letter informed Dr. Groenewold that he was entitled to five days notice of President Kelley's intent to dismiss him.

Dr. Groenewold responded on May 28, 2014, by sending President Kelley a letter denying all of the allegations in the latter's May 23, 2014, letter and requesting that President Kelley conduct a pre-termination review and thereafter reconsider his position. A pre-termination review was conducted on May 30, 2014, by administrative hearing officer and former University employee, Fred MacGregor, who concluded that there were reasonable grounds to dismiss Dr. Groenewold. Later that day, President Kelley sent Dr. Groenewold a letter terminating his employment and notifying him of his right to appeal.2 Dr. Groenewold then sent a timely letter of appeal to President Kelley.

A hearing was thereafter scheduled and Administrative Law Judge Bonnie Fetch was appointed as the hearing officer. After the first pre-hearing conference, ALJ Fetch denied Dr. Groenewold's request that the parties be required to apply the federal rules of civil procedure and the federal rules of evidence. Dr. Groenewold also requested that the Board agree in writing that either the Board itself or the University's Chancellor would be the final decision maker. The University's outside counsel orally agreed to this, but declined to secure a written commitment to that effect. ALJ Fetch noted that she had no authority to change the Board's policy and could not compel the Board to agree to designate the Chancellor as the final decision maker. Dr. Groenewold did not...

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    • U.S. District Court — District of Minnesota
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    ...if they "spoke as a citizen on a matter of public concern," rather than "pursuant to [their] official duties." Groenewold v. Kelley , 888 F.3d 365, 371 (8th Cir. 2018) ; accord Garcetti v. Ceballos , 547 U.S. 410, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006). However, two important limitations ex......
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    ...duties ‘if it is part-and-parcel’ of the employee's concerns about his ability to ‘properly execute his duties.’ " Groenewold v. Kelley , 888 F.3d 365, 371 (8th Cir. 2018) (citation omitted). The proper judicial inquiry is a "practical one," not controlled or limited by "[f]ormal job descri......
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