Gerald H. Groenewold, Ph.D. Plaintiff- Appellant
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
Submitted: December 13, 2017
from United States District Court for the District of North
Dakota - Fargo
WOLLMAN, LOKEN, and MELLOY, Circuit Judges.
WOLLMAN, CIRCUIT JUDGE.
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
court 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.
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.
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.
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."
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.
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.
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.
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."
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 ...