Ellis v. North Dakota State University

20070005 George A. Ellis, Plaintiff and Appellee
v.
North Dakota State University, Defendant and Appellant

Appeal from: District Court, East Central Judicial District, Cass County
Judge Steven L. Marquart
Nature of Action: Employer/Employee Dispute
Counsel:
Appellant: Tag Christian Anderson , Spec. Asst. Atty. Gen.
Appellee: Thomas Dayton Fiebiger
Term: 10/2008   Argument: 10/23/2008  1:30pm
ND cite: 2009 ND 59
NW cite: 764 N.W.2d 192

Listen to recording of oral argument in MP3 format

Listen to recording of second oral argument

Issues: Appellant's Statement of the Issues:
I. Can an age inquiry relative to retirement plans, asked by a non-decision maker more than three years prior to the employment decision was made, prove intentional employment discrimination?
II. Does the North Dakota Human Rights Act require an employer to prove "good cause" for an employee's discharge? May a court as a trier of fact ignore the employer's stated reasons for an employee's dismissal and instead review items of performance it believes may or may not demonstrate cause for dismissal?
III.Does a plaintiff's demonstration he was performing at an acceptable level as part of his proof of a prima facie case also result in a finding of pretext?
IV. Should the State of North Dakota be estopped from raising and asserting statute of limitations, where a state employee agrees to receive a summons and complaint, and an admission of service form, but specifically indicates the date will be left open with the documents sent to the State Risk Management Division, given the clear requirements of Rule 4 of North Dakota Rules of Civil Procedure and N.D.C.C.  32-12.2-04(5)?
V. Is the application of administrative res judicata and/or collateral estoppel foreclosed where a statutory right to appeal is not provided under N.D.C.C. ch. 28-32, but where judicial review nevertheless remains available? VI. May a district court award unlimited damages for future lost wages and benefits under the Human Rights Act given the clear and limited statutory remedies provided in N.D.C.C. 14-02.4-20?
VII. Does the duty to exercise reasonable diligence in securing alternative earnings require an employee to seek and accept employment outside of his chosen field? May Plaintiff recover back pay and "front pay" when he has not actively sought employment since shortly after filing the Complaint?


Appellee's Statement of the Issues:
I. Whether the trial court's determination that NDSU was equitably estopped to assert the defense of statute of limitations is clearly erroneous.
II. Whether the trial court's determination that plaintiff established his prima facie case of age discrimination under the North Dakota Human's Rights Act is clearly erroneous.
III. Whether the trial court's application of the burden shifting analysis in this age discrimination case was clearly erroneous.
IV. Whether the trial court's repeated determinations that neither administrative res judicata nor collateral estoppel have application to this case were clearly erroneous.
V. Whether the district court's award of damages including back pay, front pay, attorney's fees and costs was clearly erroneous.

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Docket entries:
101/09/2007 NOTICE OF APPEAL: 01/08/2007
201/09/0007 ORDER FOR TRANSCRIPT: 01/08/2007
301/09/2007 ANNOUNCED DISQUALIFICATION: Crothers, Daniel John
402/07/2007 DISK - TRA of 9-7-06 (e-mailed)
502/09/2007 TRANSCRIPT DATED September 7, 2006
602/26/2007 MOT. EXT/TIME TRANSCRIPT (Catherine Jorgensen)
702/26/2007 ACTION BY TRIAL COURT. Granted: 04/08/2007
804/05/2007 MOT. EXT/TIME TRANSCRIPT (Catherine Jorgensen)
904/05/2007 ACTION BY CLERK (MTR). Granted: 04/23/2007
1004/05/2007 RETENTION OF RECORD ON APPEAL: 04/23/2007
1104/05/2007 E-FILED MOTION (MTR)
1204/24/2007 TRANSCRIPTS DATED 12/27/05, 10/17/06, 10/18/06, 10/19/06, 10/20/06, 10/23/06
1304/24/2007 DISK-TRA(12/27/05, 10/17/06, 10/18/06, 10/19/06, 10/20/06, 10/23/06) ELECTRONIC
1404/25/2007 Cert. of Svc. of copies of Tra. dated 12/27/05, 10/17/06, 10/18/06, 10/19/06, 10/20/06, 10/23/06
1504/24/2007 RECORD ON APPEAL, Exhibits & Deposition (1) Not Rec'd: 22 & 50 (Tapes) and 178 (steno notes)
1605/23/2007 MOTION FOR LEAVE TO FILE BRIEF IN EXCESS OF WORD COUNT & AFFIDAVIT OF TAG ANDERSON
1705/25/2007 Amended Affidavit of Tag Anderson in Support of Motion/Ext/Word/Count
1805/25/2007 ACTION BY CHIEF JUSTICE (Mot/Ext/Word/Count) (2600 extra words). Granted
1906/01/2007 APPELLANT BRIEF
2006/01/2007 DISK - ATB (e-mailed)
2106/01/2007 APPELLANT APPENDIX
2206/27/2007 MOT. EXT/TIME APPELLEE BRIEF and Aff in Support
2306/27/2007 ACTION BY CLERK (MAE). Granted: 07/24/2007
2407/23/2007 APPELLEE APPENDIX
2507/27/2007 Affidavit of Service of AEB and AEA
2608/01/2007 MOTION FOR Enlargement of Word Count
2708/01/2007 E-FILED MOTION (Motion for enlargement of word count)
2808/02/2007 ACTION BY CHIEF JUSTICE (Motion for enlargement of Word Count - 900 additional words). Granted
2908/02/2007 MOT. EXT/TIME APPELLEE BRIEF (sua sponte)
3008/02/2007 ACTION BY CLERK (MAE). Granted: 08/10/2007
3108/03/2007 APPELLEE BRIEF
3208/03/2007 DISK - (AEB)(E-mailed)
3308/17/2007 REPLY BRIEF
3408/17/2007 DISK of RYB (e-mailed)
3509/20/2007 SITTING WITH THE COURT: Leclerc, Lawrence A.
3610/01/2007 APPEARANCES: Tag C. Anderson; Patricia R. Monson
3710/01/2007 ARGUED: Anderson; Monson
3810/01/2007 ORAL ARGUMENT WEBCAST
3905/28/2008 ANNOUNCED DISQUALIFICATION: Maring, Mary Muehlen
4008/07/2008 MOTION to waive oral argument on behalf of Appellee (fax dated 8/7/08 from Patricia Monson)
4108/07/2008 E-FILED (MOTION to waive oral argument on behalf of the Appellee)
4208/07/2008 Letter dated 8/7/08 from Tag Anderson stating the State will not voluntarily waive oral argument
4308/13/2008 Faxed letter from Patricia Monson dated 8-13-08 re: no longer representing Mr. Ellis
4408/20/2008 ACTION BY SUPREME COURT (Waiver of argument by Appellee). Granted
4508/22/2008 fax dated 8/22/08 from Thomas Fiebiger stating he is now counsel for Mr. Ellis
4608/22/2008 e-mail from Thomas Fiebiger requesting oral argument be continued to October 2008 Term of Court
4708/22/2008 E-FILED MOTION (e-mail from Thomas Fiebiger requesting oral argument be continued to October)
4808/22/2008 ACTION BY SUPREME COURT (Thomas Fiebiger's request to continue oral argument to October). Granted
4910/14/2008 Request for Radio/TV Coverage (Prairie Public Radio - approved)
5010/20/2008 SITTING WITH THE COURT: Olson, Everett Nels
5110/23/2008 APPEARANCES: Tag C. Anderson; Thomas D. Fiebiger
5210/23/2008 ARGUED: Anderson; Fiebiger
5310/23/2008 ORAL ARGUMENT WEBCAST
5404/09/2009 DISPOSITION: REVERSED AND REMANDED
5504/09/2009 SPLIT OPINION: VandeWalle, Gerald W.
5604/09/2009 (DISSENT): Kapsner, Carol Ronning: DISSENT
5704/09/2009 Costs on Appeal taxed in favor of Appellant
5804/13/2009 Judgment E-Mailed to Parties
5905/05/2009 MANDATE
6005/11/2009 RECEIPT SIGNED BY DISTRICT COURT CLERK'S OFFICE
6105/19/2009 Corrected Opinion Page 18

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