A wrongful termination suit against Grand Forks United Way brought by the nonprofit's former CEO has been sent from federal court back to the Grand Forks District Court. The defendants in the lawsuit have 30 days to appeal the Feb. 13 decision.
According to a complaint filed with the Grand Forks District Court on May 8, 2019, Pat Berger was told by United Way board members on Dec. 21, 2018, that she was under investigation and placed on administrative leave with pay. On Jan. 21, 2019, Berger, who worked there 24 years, was placed on administrative leave without pay; on Feb. 12, her termination was made final.
The complaint alleges her firing was triggered by comments she made on a Facebook post in November 2018 regarding Forum Communications' merger of Grand Forks television station WDAZ-TV with Fargo-based station WDAY-TV. Berger's comments were then included in a Dec. 6, 2018, opinion column headlined "Still here, reporting the news," written by Herald Publisher Korrie Wenzel. Forum Communications owns the Grand Forks Herald.
"Wow," Berger commented from her personal Facebook account Nov. 30, 2018. "I guess they don't really care about GF or the northern valley. ... Feel like soon we will only have a Fargo Forum as our 'local' newspaper, too."
"Oh, for heaven's sake," Wenzel replied in the column. He then noted ways that, in his opinion, the company cares about Grand Forks.
United Way denied Berger's termination had anything to do with her Facebook comments or the Herald column, according to court documents. Instead they told her attorney, Grand Forks-based David Thompson, that her termination was the result of "unprofessional conduct over the course of the past 15 months," a claim the complaint alleges is false.
Berger had told the board in November 2018 that she intended to retire in June 2019. She is suing for $50,000 or the remainder of her salary had she stayed with United Way until she intended to retire. The Herald previously reported Berger's salary was $70,880.
Nikki Jackman and Phyllis Johnson, representing the United Way Board of Directors, are both identified as defendants in the case, in addition to the corporation itself.
Berger alleges her termination amounts to a public policy exception to the state's at-will employment doctrine, and that her right to free speech should protect her from adverse employment action taken by her private employer because of public comments. The defendants disagreed with the nature of the complaint, and on May 31, 2019, the case was removed to federal court on the basis that the lawsuit was a question of constitutional law, and not of North Dakota state law.
The burden was on the defendants to prove the federal court had jurisdiction over the case. It was a burden they failed to meet, U.S. District Judge Daniel Traynor wrote in the Feb. 13 order sending the case back to the state court.
"The plaintiff's cause of action in the complaint is not substantial, as it does not have an effect on the 'federal system as a whole,'" Traynor wrote in the order. "In this case, whether the plaintiff's claim will fall into North Dakota's public policy exception will affect state substantive law rather than federal law."
Thompson said the order to move the case back to the state court is a victory for Berger, but that the case was substantially delayed by the removal to federal court.
"They could have settled this case for a relatively small amount of money," Thompson said. "And I know they've spent thousands and thousands of dollars on this federal court mistaken adventure."