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John Balsamo v. University System of New Hampshire

March 2, 2012


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

Opinion No. 2012 DNH 048


John Balsamo was fired in September 2007 after working as a maintenance technician for the University of New Hampshire ("UNH") Housing Office for slightly over one year. He brings suit against UNH, the University System of New Hampshire ("USNH"), the President of UNH, and three UNH employees. Balsamo claims that UNH and USNH are liable for breach of contract because they terminated him without adhering to the policies governing the termination process. Balsamo also argues that defendants violated his constitutional right to procedural due process. Defendants move for summary judgment, and for the reasons provided below, I grant defendants' motion.


A. Facts

1. Hiring & Orientation

On August 3, 2006, Balsamo was offered the position of General Maintenance Technician at the UNH Housing Office. The offer letter stated that his appointment would be full-time. Offer Letter, Doc. No. 14-3. Aside from noting that his employment would begin with an "introductory period" of up to six months, the letter did not include a durational term of employment. Id. Balsamo began work on August 14. Welcome Letter, Doc. No. 14-5.

Balsamo received a welcome letter on August 22 that contained a packet of materials detailing benefits programs as well as an invitation to an August 28 orientation session. Id. At or before the orientation session, which he attended, he received a copy of the 2006 edition of the USNH Operating Staff Handbook ("Handbook"). VanHorn Aff. ¶ 5, Doc. No. 14-6. He read through the Handbook, and was aware of its statement that USNH's online Policy Manual included more specific information about the University's policies. Balsamo Dep. at 21-23, Doc.

No. 14-7.

At some point that month, Balsamo also received a packet on discrimination and harassment that included a memorandum, two flyers, and UNH's Discrimination and Discriminatory Harassment Policy [hereinafter Discrimination Policy]. Discriminatory Harassment Packet, Doc. No. 14-9. Also occurring at some unspecified time around the start of his employment, Balsamo was advised that the terms of his employment would be governed by USNH and UNH policies. Balsamo Aff. ¶ 2, Doc. No. 16-7.

2. Policies, Documents, and Disclaimers

(a) Operating Staff Handbook

The Operating Staff Handbook given to Balsamo at or before his orientation session contains a preface that reads, in its entirety:

This handbook is describing employment conditions and providing an overview of policies and practices for status Operating Staff of [USNH]. Please note that the information contained in this handbook is intended as a guideline only. While the handbook summarizes plans, programs, and policies, the exact terms of the written documents for these plans, programs, and policies take precedent [sic]. USNH reserves the right to make changes to this handbook and any such plans, programs, and policies at any time without prior notice. More specific information is available in USNH's online Policy Manual, which may be accessed through your campus Human Resources web page, or at This handbook is not and should not be interpreted as a contract of employment between any current Operating Staff member or former Operating Staff member and USNH. If you have questions about any of the information in this handbook, you are encouraged to consult your campus Human Resources Office or the University System Human Resources Office.

Handbook, Doc. No. 14-18 at 2.

The Handbook also contains a section titled "Involuntary Termination," which includes a subsection titled "Performance Based Reasons." The paragraph under that subsection reads:

If your job performance is not meeting expectations, your supervisor will provide you with verbal and written notification. This notification will include a description of the expected improvements and a time frame in which to achieve them. If your job performance does not improve, your employment will be terminated. The University System reserves the right to bypass these steps and terminate a staff member immediately if, in its sole judgment, the nature of the situation justifies immediate termination. In either case, you will receive a letter of termination describing the reason for the termination, the date on which your employment will end, and the procedure for filing a grievance.

Id. at 9-10 (emphasis added).

(b) Online Policy Manual

The online Policy Manual ("OLPM") referenced in the Handbook's preface contains a number of policies in various sections that are relevant to employment and to termination procedures. One provision in the Appointments and Employment Relationships Section*fn1 states, "A status appointment[*fn2 ] is normally reserved for those with continued employment expectations which, however, shall not be construed to imply a commitment or a contractual obligation to provide employment." Employment Section §, Doc. No. 16-5. Another provision in that section reads, "Appointments are based on a Fiscal Year, which is 12 consecutive months, . . . or on an academic year of approximately nine months[.]" Id. § 6.2.5.

The Termination Section includes a number of provisions concerning the involuntary termination of an employee. One provision states that poor performance can be a reason for involuntary discharge, and notes that an employee may be terminated after evaluative steps and constructive discipline are unsuccessful in remedying the problems in performance. Termination Section § 9.8.4, Doc. No. 14-12. Another grounds for termination is destructive or detrimental action. Id. §

9.10.1. The provision explaining that category -- which includes serious crimes, insubordination, and grievous acts --states that a "staff member may be terminated immediately without further notice" if "the staff member's actions are so destructive or detrimental that they cannot be tolerated[.]" Id. § 9.10.1. The provision on grievous acts indicates that an "employee may be terminated for serious grievous acts of violation of policy . . . including[,] but not limited to[,] guilt in sexual harassment, failure to comply with substance abuse and/or safety policies, or the conflict of interest policy." Id. §

The OLPM's Discrimination and Discriminatory Harassment Section [hereinafter Discrimination Section] deals with discriminatory and harassing behaviors and the process for handling allegations of offending conduct. Discrimination Section, Doc. No. 14-16. One subsection details UNH's policy regarding the formal complaint process, a process to be used as an alternative when informal resolution is unsuccessful. Id. § 5.9.1. According to that subsection, faculty and staff have up to sixty days from the date of an incident to file a formal complaint, and students have twelve months to file after an incident. Id. § 5.9.2. An administrator is to make a preliminary assessment, and the complaint process will proceed if the administrator determines discriminatory harassment may have occurred. Id. § 5.9.4. An investigation commences when a complainant submits a written, signed complaint to the Affirmative Action and Equity Office, and the Office then "provide[s] a copy of the complainant's signed complaint to the accused person, together with information as to the policy." Id. § 5.9.5. The accused is to be promptly interviewed, and "[t]hereafter, a reasonable effort will be made to investigate the disputed facts of the case, using corroborating sources of information (including witnesses) identified by the complainant and the accused." Id. If a resolution is not possible, the Director of the Affirmative Action and Equity office provides the appropriate administrator with its findings and conclusions, along with a recommendation for action. Id. 5.9.7. The administrator then renders a judgment. Id. An accused who is unsatisfied may appeal the judgment through grievance procedures. Id. § 5.9.8.

In addition to the policies enumerated in the various sections of the OLPM, an individual browsing through the online manual would also come across two disclaimers. The ...

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