Former UND professor sues Mark Kennedy, school over termination

A former UND professor has sued the school and its president, saying the university leader violated policy when the educator was fired.

Frank Cuozzo, who taught biological anthropology at UND for 12 years, claims President Mark Kennedy and the school breached his contract when Kennedy fired Cuozzo in May. Kennedy dismissed Cuozzo from his position "with cause" after the school's Standing Committee of Faculty Rights determined there was "clear and convincing evidence" to support the dismissal, according to court documents.

The committee recommended Cuozzo be allowed to resign from his post, according to a letter the committee sent to Kennedy on May 12. Four days later, Kennedy authored a four-sentence letter to Cuozzo saying he "carefully reviewed" the committee's report and would uphold the school's initial recommendation to terminate the professor's employment.

Cuozzo questioned what he called a "quick decision" in a May 24 letter to Kennedy, and the lawsuit filed Jan. 10 in Grand Forks District Court points out two of the four days from the recommendation to the issuance of Kennedy's decision were a Saturday and Sunday. Citing UND and State Board of Higher Education policy, the lawsuit claims Kennedy did not cite findings of fact from the committee nor did he consider the transcript of the hearings to determine if Cuozzo should be fired.

The defendants have denied allegations of wrongdoing in replies to the lawsuit, saying Kennedy's letter "speaks for itself" and he adopted the committee's findings of fact and conclusions of the committee and made them his own.

"Cuozzo argues that somehow a decision-maker has to go into detail when they adopt the findings of another hearing body," the defense argued, adding that would be "completely disruptive to the entire process."

Reasons for dismissal

Cuozzo was arrested Sept. 8, 2015, after driving under the influence that morning on UND's campus, according to Herald archives. Cuozzo was scheduled to teach class that morning, and officers who arrested him said he had a preliminary blood alcohol content of 0.13 percent.

He pleaded guilty to the charge in December 2015 and avoided jail time.

Thomas DiLorenzo, UND provost and vice president for academic affairs, mentioned in a Jan. 30 letter the DUI case as one of the reasons he recommended Cuozzo be fired, claiming the professor did not notify the department of his conviction and that he had violated the school's code of conduct.

But most of the reasons for dismissal focus on events that allegedly happened more than a year after the DUI conviction.

As part of disciplinary measures resulting from the DUI case, Cuozzo was ordered to obtain approval for canceling or being absent from his classes. He also was required to provide course evaluations for an annual review.

Cuozzo missed four days of classes in January 2017 and, despite being told multiple times to do so, did not provide the evaluation materials to the department chair, DiLorenzo said in his letter.

Citing scheduling conflicts for medical appointments, Cuozzo requested to be absent from one of the classes. The email went to the Provost's Office and was copied to John Mihelich, who at the time was the chair of the anthropology department, according to a response to DiLorenzo's accusations. But the recipient of the email was unable to authorize the absence, according to Cuozzo's response.

Cuozzo canceled two other classes for medical reasons that "created a physical situation in which I could not be in the classroom those days," the response said.

The last day of absence was due to his flight from Denver being canceled, he said.

Cuozzo's response also alleges Mihelich "demonstrated abusive, harassing and discriminatory behavior toward me for many months." He said he wanted to avoid direct contact with Mihelich because he felt Mihelich would not review his request in a "fair and objective manner," Cuozzo wrote.

"I was very uncomfortable with the prospect of being evaluated by a chair and department against which I had filed a formal complaint of discrimination and harassment" with the Equal Employment Opportunity/Affirmative Action Office in January, the letter said.

Cuozzo requested on Jan. 27, 2017, that his evaluation be conducted by someone outside the department. Cuozzo received DiLorenzo's letter to recommend dismissal on Jan. 31, 2017.

A copy of the discrimination complaint obtained by the Herald lists the anthropology department as the alleged instigator of wrongdoing. Cuozzo's allegations against the department include discrimination based on religion, sexual harassment and his ethnicity as an Italian-American.

An investigation into the complaint revealed there was not enough evidence to determine if Cuozzo was a victim of discrimination, UND said in an email to the Herald.

Mihelich, who is still listed as an anthropology professor, eventually left the role of anthropology chair to become the interim Electrical Engineering Department chair, UND spokesman Peter Johnson wrote in an email.

Question of following policy

The faculty rights committee recommended Cuozzo be allowed to resign because it found the anthropology department had "a long history of being dysfunctional with faculty who have not always acted collegially," according to the committee's letter to Kennedy. It also sympathized with Cuozzo's medical situation, adding the professor was successful in publishing peer-reviewed articles and securing grants.

The committee asked Kennedy to "extend a degree of mercy to Cuozzo" and cited Shakespeare: "The quality of mercy is not strained."

Cuozzo's attorney argues Kennedy did not follow UND or State Board of Higher Education policies because he did not cite findings of fact from the committee or conclusion "based on the hearing record," according to court documents.

The complaint also questioned why UND did not order a transcript of the committee hearings, which would have taken 10 to 14 days to transcribe from recordings. Kennedy had 20 days to act on the committee's recommendation, but the transcript was not delivered to his office until 10 weeks after Kennedy sent the termination letter, according to court documents.

The complaint argued policy is in place to ensure a university president is making a decision "based on the hearing record," not just the committee report, adding that's how UND and Kennedy breached Cuozzo's contract.

"Notwithstanding a diligent search for employment, Dr. Cuozzo has been unsuccessful in obtaining any type of academic position since May 2017," the lawsuit stated.

Cuozzo is asking for damages in excess of $100,000 representing lost earnings and benefits, as well as harm to his professional standing and reputation, according to court documents.

The next hearing is April 20.