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Barbara Kraft v. Larry A. Mayer

January 25, 2012


The opinion of the court was delivered by: Paul Barbadoro United States District Judge

Opinion No. 2012 DNH 018


Barbara Kraft, a former Assistant Research Professor in Ocean Engineering at the University of New Hampshire ("UNH"), filed suit in New Hampshire Superior Court against UNH and Larry Mayer, Director of the Center for Coastal & Ocean Mapping ("CCOM"). She asserted state law claims for wrongful termination, breach of contract, intentional interference with contractual relations, and intentional infliction of emotional distress. She also asserted a federal law claim under 42 U.S.C. § 1983, alleging a substantive due process violation. Based on federal question jurisdiction over Kraft's Section 1983 claim, defendants removed the action to this court. Defendants now move for summary judgment on all claims. For the reasons provided below, I grant the motion with respect to Kraft's Section 1983 claim and decline to exercise supplemental jurisdiction over her state law claims.


Kraft began working at CCOM in June 2001 as a post-doctoral fellow. In March 2004, she was promoted to Research Scientist II, a position funded through a grant awarded to UNH by the National Oceanic and Atmospheric Administration ("NOAA"). Kraft was named in CCOM's grant proposal submitted to NOAA in January 2005. NOAA approved CCOM's funding through December 2010.

In February 2006, Kraft was promoted to the position of Assistant Research Professor in Ocean Engineering. Her letter of appointment, dated March 7, 2007, stated that her salary was to be covered by the CCOM operating budget through grants from NOAA, the Office of Naval Research ("ONR"), or other sources. Doc. No. 4 at 30. The letter also provided that Kraft would "be responsible for conducting research and producing results consistent with the tasks outlined in the grants from which your support is drawn." Id. Lastly, the letter provided that "[a]fter a period of no longer than 6 years from your appointment, February 2006, you will be evaluated for promotion to the rank of Associate Research Professor." Id. Kraft subsequently received a salary increase based on her performance.

In October 2007, Kraft filed a complaint under UNH's Misconduct in Scholarly Activity ("MISA") policy against Mayer, who, as the Director of CCOM, was Kraft's supervisor, and Luciano Fonseca, then an Assistant Research Professor at CCOM.*fn1

She alleged that Mayer and Fonseca had misappropriated and published her data without her knowledge or consent. An inquiry team investigated the complaint. In December 2007, the team concluded that the alleged actions did not rise to the level of scholarly misconduct. The team noted, however, that problems with collegiality between some personnel at CCOM, namely Kraft and Fonseca, were sufficiently serious to warrant further mediation or other recourse. The team also recommended that CCOM establish clear authorship criteria.

In January 2008, approximately two weeks after the completion of the MISA inquiry, Mayer told Christian de Moustier, then a tenured Professor at CCOM, "that he wanted to fire Kraft." De Moustier Aff., Doc. No. 26-79, at 7. After Mayer repeated his intention to fire Kraft at a meeting de Moustier attended, de Moustier "warned Kraft to keep a low profile because Mayer was looking for reasons to fire her." Id.

Kraft sensed Mayer's hostility towards her at around the same time. In January, she received a "caustic" email from him expressing his disapproval of her criticism of a CCOM graduate student. Kraft perceived the email as uncharacteristic of Mayer, because he did not ask for her side of the story and proceeded to seek the Dean's advice on how to manage the minor conflict. She believed that Mayer was working to document any reason to terminate her in retaliation for the MISA complaint. Over the next nine months, she reported to several UNH administrators that Mayer wanted to terminate her.

Mayer avoided speaking to Kraft until April 2008, when he came into her office. In response to her remark that it had been a long time since she had seen him, Mayer said, "I haven't spoken to you because I've been mad at you." Doc. No. 24-5 at 481. Kraft concedes that he possibly added, "but I'm not mad anymore." Id.

Subsequently, Kraft met with Donna Marie Sorrentino, Director of the UNH Affirmative Action and Equity Office, to express concerns about a hostile work environment. She discussed her concern regarding Mayer's remark that he wished to terminate her, Fonseca's ongoing abusive and discriminatory behavior, and the University's lack of response in addressing the MISA inquiry team's recommendations. Sorrentino initiated a Discrimination and Harassment Complaint/Incident Report and met with Joseph Klewicki, Dean of the College of Engineering and Physical Sciences, to discuss Kraft's concerns. Dean Klewicki recommended following up with Vice Provost Taylor Eighmy. Sorrentino relayed the message to Kraft. Kraft had previously met with Eighmy to discuss results of the MISA inquiry and found the meeting unproductive and stressful. As a result, she did not follow up with him this time.

In May 2008, after the academic year ended, Kraft left her office at CCOM and began working in de Moustier's lab in Kingsbury Hall. She did so in an effort to remove herself from the hostile work environment. Since she would not receive compensation from CCOM during the summer months, she did not think it was incumbent upon her to inform Mayer or anyone else at CCOM of her decision.

When the new academic year began in September, Kraft negotiated an alternative work arrangement agreement with Mayer. Tracy Birmingham facilitated the negotiations.*fn2 The agreement, dated September 30, 2008, provided that Kraft would continue her appointment as a CCOM Assistant Research Professor for the fall 2008 term. Doc. No. 24-10. The agreement required Kraft to complete three papers and submit them for publication by the end of 2008. Id. She could continue to work from Kingsbury Hall or another on-campus location outside of CCOM during the term. Id. Lastly, the agreement noted that Kraft had advised that she would seek other professional opportunities at the end of 2008.*fn3


In November 2008, Birmingham followed up with Kraft about her work arrangement. At the same time, she informed Vice Provost Eighmy of her belief that it would be best if Kraft left CCOM for another job. She added, "I also think we might minimize our risk exposure with [Kraft] with ...

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