State v. Sauer, 2011 ND 47

Geffre worked as a fire and life safety surveyor for the North Dakota Department of Health since 2000, focusing on life safety code compliance in health facilities.
He received a 2004 pre-action notice for alleged reporting and time-keeping issues but the Department took no further action after a satisfactory response.
A 2005 pre-action notice warned of continuing performance problems including improper time use and nonstandard workdays; after termination, Geffre’s internal grievance was reinstated by the State Health Officer with a corrective plan.
Geffre signed a work plan requiring login/logout with an electronic key card and periodic performance reviews, but he repeatedly failed to card in/out and to log travel/expense accurately.
In 2007 Geffre was cited for smoking in a State Fleet vehicle and other performance issues; in September 2007 the Department terminated his employment.
Geffre appealed the termination to HRMS; the ALJ upheld the termination; the district court denied the Department’s motion to dismiss the appeal and1 awarded Geffre attorney fees for resisting the motion; the district court affirmed the termination, and the Court of Appeals affirmed as modified.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Geffre’s appeal was properly perfected.	Geffre argues Ryan governs perfecting the appeal and HRMS service is unnecessary.	Department argues failure to serve HRMS deprives the court of jurisdiction.	Appeal properly perfected; district court did not err in denying dismissal.
Whether attorney fees were properly awarded under 28-32-50.	Geffre contends fees were tied to the dismissal-responding motion and should be justified differently.	Department asserts fees were inappropriate or not justified under the statute.	Fees awarded under 28-32-50 were proper; abuse of discretion standard applied and upheld.
Whether the Department showed cause to terminate Geffre for misconduct.	Geffre contends lack of reprisal; argues due process and improper burden shifting.	Department must show cause related to job duties; Geffre failed to cite all deficiencies and followed directives.	Findings supported by preponderance of the evidence; termination for cause upheld; no reprisal shown.

North Dakota Dep’t of Human Services v. Ryan, 2003 ND 196 (ND 2003) (service on HRMS not required for cross-appeals; context for perfecting appeals)
Little v. Traynor, 1997 ND 128 (ND 1997) (attorney fees may be awarded for related motions; no need to show absence of substantial justification when not a final agency order)
Lamplighter Lounge, Inc. v. State, 523 N.W.2d 73 (ND 1994) (fees awarded in non-final agency actions under §28-32-50(1))
Berdahl v. North Dakota State Personnel Bd., 447 N.W.2d 300 (ND 1989) (due process protections for public employees; post-termination hearing required)
Loudermill v. Cleveland Bd. of Educ., 470 U.S. 532 (U.S. 1985) (public employees entitled to notice and a hearing before adverse action)