Ellis v. North Dakota State University
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| 20070005 |
George A. Ellis, Plaintiff and Appellee
v.
North Dakota State University, Defendant and Appellant
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| Appeal from: |
District Court,
East Central Judicial District,
Cass County
Judge Steven L. Marquart |
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Nature of Action: |
Employer/Employee Dispute
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| Counsel: |
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| Term: |
10/2008 Argument: 10/23/2008 01:30pm
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| ND cite: |
2009 ND 59
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| NW cite: |
764 N.W.2d 192
Listen to recording of oral argument
Listen to recording of second oral argument
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| 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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 Add Docket 20070005 RSS
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| 1 | | 01/09/2007 | |
NOTICE OF APPEAL: 01/08/2007 |
| 2 | | 01/09/0007 | |
ORDER FOR TRANSCRIPT: 01/08/2007 |
| 3 | | 01/09/2007 | |
ANNOUNCED DISQUALIFICATION: Crothers, Daniel John |
| 4 | | 02/07/2007 | |
DISK - TRA of 9-7-06 (e-mailed) |
| 5 | | 02/09/2007 | |
TRANSCRIPT DATED September 7, 2006 |
| 6 | | 02/26/2007 | |
MOT. EXT/TIME TRANSCRIPT (Catherine Jorgensen) |
| 7 | | 02/26/2007 | |
ACTION BY TRIAL COURT. Granted: 04/08/2007 |
| 8 | | 04/05/2007 | |
MOT. EXT/TIME TRANSCRIPT (Catherine Jorgensen) |
| 9 | | 04/05/2007 | |
ACTION BY CLERK (MTR). Granted: 04/23/2007 |
| 10 | | 04/05/2007 | |
RETENTION OF RECORD ON APPEAL: 04/23/2007 |
| 11 | | 04/05/2007 | |
E-FILED MOTION (MTR) |
| 12 | | 04/24/2007 | |
TRANSCRIPTS DATED 12/27/05, 10/17/06, 10/18/06, 10/19/06, 10/20/06, 10/23/06 |
| 13 | | 04/24/2007 | |
DISK-TRA(12/27/05, 10/17/06, 10/18/06, 10/19/06, 10/20/06, 10/23/06) ELECTRONIC |
| 14 | | 04/25/2007 | |
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 |
| 15 | | 04/24/2007 | |
RECORD ON APPEAL, Exhibits & Deposition (1) Not Rec'd: 22 & 50 (Tapes) and 178 (steno notes) |
| 16 | | 05/23/2007 | |
MOTION FOR LEAVE TO FILE BRIEF IN EXCESS OF WORD COUNT & AFFIDAVIT OF TAG ANDERSON |
| 17 | | 05/25/2007 | |
Amended Affidavit of Tag Anderson in Support of Motion/Ext/Word/Count |
| 18 | | 05/25/2007 | |
ACTION BY CHIEF JUSTICE (Mot/Ext/Word/Count) (2600 extra words). Granted |
| 19 | | 06/01/2007 | |
APPELLANT BRIEF |
| 20 | | 06/01/2007 | |
DISK - ATB (e-mailed) |
| 21 | | 06/01/2007 | |
APPELLANT APPENDIX |
| 22 | | 06/27/2007 | |
MOT. EXT/TIME APPELLEE BRIEF and Aff in Support |
| 23 | | 06/27/2007 | |
ACTION BY CLERK (MAE). Granted: 07/24/2007 |
| 24 | | 07/23/2007 | |
APPELLEE APPENDIX |
| 25 | | 07/27/2007 | |
Affidavit of Service of AEB and AEA |
| 26 | | 08/01/2007 | |
MOTION FOR Enlargement of Word Count |
| 27 | | 08/01/2007 | |
E-FILED MOTION (Motion for enlargement of word count) |
| 28 | | 08/02/2007 | |
ACTION BY CHIEF JUSTICE (Motion for enlargement of Word Count - 900 additional words). Granted |
| 29 | | 08/02/2007 | |
MOT. EXT/TIME APPELLEE BRIEF (sua sponte) |
| 30 | | 08/02/2007 | |
ACTION BY CLERK (MAE). Granted: 08/10/2007 |
| 31 | | 08/03/2007 | |
APPELLEE BRIEF |
| 32 | | 08/03/2007 | |
DISK - (AEB)(E-mailed) |
| 33 | | 08/17/2007 | |
REPLY BRIEF |
| 34 | | 08/17/2007 | |
DISK of RYB (e-mailed) |
| 35 | | 09/20/2007 | |
SITTING WITH THE COURT: Leclerc, Lawrence A. |
| 36 | | 10/01/2007 | |
APPEARANCES: Tag C. Anderson; Patricia R. Monson |
| 37 | | 10/01/2007 | |
ARGUED: Anderson; Monson |
| 38 | | 10/01/2007 | |
ORAL ARGUMENT WEBCAST |
| 39 | | 05/28/2008 | |
ANNOUNCED DISQUALIFICATION: Maring, Mary Muehlen |
| 40 | | 08/07/2008 | |
MOTION to waive oral argument on behalf of Appellee (fax dated 8/7/08 from Patricia Monson) |
| 41 | | 08/07/2008 | |
E-FILED (MOTION to waive oral argument on behalf of the Appellee) |
| 42 | | 08/07/2008 | |
Letter dated 8/7/08 from Tag Anderson stating the State will not voluntarily waive oral argument |
| 43 | | 08/13/2008 | |
Faxed letter from Patricia Monson dated 8-13-08 re: no longer representing Mr. Ellis |
| 44 | | 08/20/2008 | |
ACTION BY SUPREME COURT (Waiver of argument by Appellee). Granted |
| 45 | | 08/22/2008 | |
fax dated 8/22/08 from Thomas Fiebiger stating he is now counsel for Mr. Ellis |
| 46 | | 08/22/2008 | |
e-mail from Thomas Fiebiger requesting oral argument be continued to October 2008 Term of Court |
| 47 | | 08/22/2008 | |
E-FILED MOTION (e-mail from Thomas Fiebiger requesting oral argument be continued to October) |
| 48 | | 08/22/2008 | |
ACTION BY SUPREME COURT (Thomas Fiebiger's request to continue oral argument to October). Granted |
| 49 | | 10/14/2008 | |
Request for Radio/TV Coverage (Prairie Public Radio - approved) |
| 50 | | 10/20/2008 | |
SITTING WITH THE COURT: Olson, Everett Nels |
| 51 | | 10/23/2008 | |
APPEARANCES: Tag C. Anderson; Thomas D. Fiebiger |
| 52 | | 10/23/2008 | |
ARGUED: Anderson; Fiebiger |
| 53 | | 10/23/2008 | |
ORAL ARGUMENT WEBCAST |
| 54 | | 04/09/2009 | |
DISPOSITION: REVERSED AND REMANDED |
| 55 | | 04/09/2009 | |
SPLIT OPINION: VandeWalle, Gerald W. |
| 56 | | 04/09/2009 | |
(DISSENT): Kapsner, Carol Ronning: DISSENT |
| 57 | | 04/09/2009 | |
Costs on Appeal taxed in favor of Appellant |
| 58 | | 04/13/2009 | |
Judgment E-Mailed to Parties |
| 59 | | 05/05/2009 | |
MANDATE |
| 60 | | 05/11/2009 | |
RECEIPT SIGNED BY DISTRICT COURT CLERK'S OFFICE |
| 61 | | 05/19/2009 | |
Corrected Opinion Page 18 |