Daly v . University of N.H. CV-00-064-M 09/19/01 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Cheryl J. Daly, Plaintiff

v. Civil N o . 00-64-M Opinion N o .

The University of New Hampshire, Defendant

O R D E R

Cheryl J. Daly has sued the University of New Hampshire

(“UNH”) in two counts, alleging wrongful discharge and breach of

contract. This diversity action arises from UNH’s discharge of

Daly from her position as Director of its Office of Multicultural

Student Affairs (“OMSA”). Before the court is UNH’s Motion for

Summary Judgment. Daly objects. For the reasons stated below,

UNH’s Motion for Summary Judgment is granted.

Standard of Review

Summary judgment is appropriate when the record reveals “no

genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P.

56(c). “To determine whether these criteria have been met, a

court must pierce the boilerplate of the pleadings and carefully

review the parties’ submissions to ascertain whether they reveal

a trialworthy issue as to any material fact.” Perez v . Volvo Car

Corp.,

(1st Cir. 2001) (citing Grant’s Dairy-

Me., LLC v . Comm’r of M e . Dep’t of Agric., Food & Rural Res.,

, 14 (1st Cir. 2000)). “The non-movant may not rely on

allegations in its pleadings, but must set forth specific facts

indicating a genuine issue for trial.” Geffon v . Micrion Corp.,

9 , 34 (1st Cir. 2001) (citing Lucia v . Prospect St.

High Income Portfolio, Inc.,

(1st Cir. 1994)).

When ruling upon a party’s motion for summary judgment, the court

must “construe the record and all reasonable inferences from it

in favor of the nonmovant (i.e., the party opposing the summary

judgment motion).” Perez,

(citing Suarez v .

Pueblo Int’l, Inc.,

9 , 53 (1st Cir. 2000)).

2 Factual Background

Viewed in the light most favorable to Daly, the relevant

facts of this case are as follows. On July 1 , 1994, UNH hired

Daly to serve as Director of its Office of Multicultural Student

Affairs. Daly was initially supervised by Daniel DiBiasio, Vice

President of Student Affairs. (Moore Aff. ¶ 3.) Daly’s position

was classified as a “status” appointment, as opposed to a “non-

status” appointment (Butler Aff. ¶ 5 . ) , which entitled her to a

continued expectation of employment; she could be terminated only

for specific acts, such as poor performance or insubordination,

and only if UNH followed a specified set of procedures. (Butler

Aff. ¶¶ 3-5.) At the time of her hiring, Daly was subject to a

standard six-month probationary period. That probationary period

was twice extended, by three months each time, giving her a total

probationary period of one year. (Moore Aff. ¶ 4 and Exs. 1 , 3.)

In extending Daly’s probation, DiBiasio cited, among other

things, her “antagonistic and confrontational” interactions with

students and staff members and an incident of “confrontational

and unprofessional” behavior toward a faculty member at the

3 University of Rhode Island. (Moore Aff. ¶ 4 and Ex. 1 at 2.) On

April 6, 1995, early in the second three-month probation

extension, and in response to a grievance filed against Daly by

her secretary, DiBiasio concluded that “the work environment in

the Office of Multicultural Student Affairs is dysfunctional”

(Moore Aff., Ex. 2 ) , placed the greater share of the

responsibility for the office’s dysfunction on Daly, and assigned

the Director of Student Life to work two days a week in the OMSA

office, to resolve problems between Daly and her secretary.

(Moore Aff., Ex. 2.) In an annual performance evaluation dated

June 2 2 , 1995, DiBiasio noted Daly’s success in attracting

students to the OMSA, but also criticized “the harsh manner in

which [Daly had] treated peers and other staff [which had] been

noted by several individuals who have complained about [her]

combative and, at times, hostile attitude.” (Moore Aff., Ex. 4

at 1.)

In September 1995, approximately two months after the

expiration of Daly’s twelve-month extended probation, D r . Lelia

4 Moore replaced DiBiasio as Vice President of Student Affairs and,

as a result, became Daly’s supervisor. (Moore Aff. ¶¶ 1-3.)

Between June 1995 and December 1998, Daly was involved in

confrontations with: (1) staff members of the Memorial Union and

Student Activities Office, in June 1995 (Moore Aff., Ex. 5 ) ; (2)

the campus police, in August and October 1997 (Moore Aff., Ex.

7 ) ; (3) employees of SPCT, in January 1998 (Moore Aff., Ex. 8 ) ;

(4) a member of the Student Senate, in April 1998 (Moore Aff.,

Ex. 1 0 ) ; and (5) two employees of Taylor Rental, in November 1998

(Moore Aff., Ex. 1 2 ) . The third of these incidents resulted in

letters of apology from Dr. Moore and Daly to the manager of SPCT

(Moore Aff., Ex. 9 ) while the fifth resulted in a letter of

apology from the President of UNH to a student who worked at

Taylor Rental (Moore Aff., Ex. 12) and an official written

warning in which D r . Moore directed Daly to curtail her “hostile,

threatening and aggressive behavior” (Moore Aff., Ex. 16 at 1 ) .

Despite these various incidents, D r . Moore gave Daly strongly

positive performance evaluations on June 4 , 1997 (Pl.’s O b j . to

Def.’s Mot. Summ. J., Ex. 1 ) and July 2 2 , 1998 (Moore. Aff., Ex.

5 11). The second of these two evaluations, however, was not

uniformly positive, and included several references to Daly’s

difficulties in “dealing with conflicts” and expressing

“differing points of view without deprecating others.” (Moore

Aff., Ex. 11 at 1.)

In April or May of 1998, Daly had a conversation with

Deborah Hamilton, who had asked Daly about the possibility of

working in the OMSA as a graduate assistant. (Daly Dep. at 174.)

At the time of this conversation, Hamilton was a UNH graduate

student and was also D r . Moore’s domestic partner. (Daly Dep. at

170, 173.) Dr. Moore shared a home with Hamilton (Daly Aff. ¶ 3 )

and on at least one occasion, Dr. Moore and Hamilton sent out

Christmas cards together (Daly Dep. at 168-69).

Daly did not follow up on Hamilton’s initial inquiry about

employment at the OMSA. (Daly Dep. at 176.) In August 1998,

Hamilton sent Daly an e-mail expressing, for a second time, her

interest in a position in the OMSA. (Daly Aff. ¶ 2 ; Daly Dep. at

6 175.) Daly followed up by calling Hamilton at the home she

shared with Dr. Moore. (Daly Aff. ¶ 3 ; Daly Dep. 176-77.) After

discussing various scheduling matters, Daly stated that she and

Hamilton could work out the details of placing Hamilton in a

position in the OMSA, but also indicated that she needed to

discuss the matter with Dr. Moore. (Daly Aff. ¶ 4 ; Daly Dep. at

177.)

When Daly raised the issue of hiring Hamilton with Dr.

Moore, Moore said that it would be “fine” for Daly to hire

Hamilton (Daly Dep. at 183) and that Hamilton would be a good

worker (Daly Dep. at 1 7 8 ) . Daly claims, but Dr. Moore denies,

that Moore also thanked Daly for hiring Hamilton by saying “Bud,

thanks for taking her out of my hair.” (Daly Dep. at 178; Daly

Aff. ¶ 4.) However, D r . Moore neither asked nor directed Daly to

hire Hamilton. (Daly Dep. at 184-85.)

By letter dated December 1 , 1998, Hamilton resigned from her

position in the OMSA. (Moore Aff., Ex. 13 at 1.) By letter

7 dated December 2 , another student worker also resigned, citing

Daly’s failure “to act in an ethical and professional manner.”

(Moore Aff., Ex. 13 at 2.) Shortly thereafter, by letter dated

December 1 3 , 1998, Associate Professor John Ernest, who along

with Daly co-chaired the President’s Commission on the Status of

People of Color, resigned from that position, stating that he

could “no longer work with Cheryl Daly – whose approach to this

and other work i s , in my view, almost always unstructured,

sometimes unprincipled, and usually autocratic.” (Moore Aff.,

Ex. 14.)

Between December 1 6 , 1998 and March 1999, Dr. Moore received

a number of complaints about Daly’s behavior from students.

(Moore Aff. ¶ 16 and Ex. 15.) She also initiated a financial

audit of the OMSA, based upon concerns about possible overpayment

of student workers. (Moore Aff. ¶¶ 17-18.) Among other things,

the audit disclosed the possibility that a number of students –

including Hamilton – had received double payments for hours they

had worked at the OMSA. (Moore Aff. ¶ 17.) Daly first learned

8 that double payments had, in fact, been made to Hamilton in late

February 1999, from Moore’s financial officer, Patsy Stuart.

(Daly Dep. at 133, 154; Daly Aff ¶ 17.) On February 2 2 , 1999,

another student worker resigned from a position in the OMSA,

stating: “I have also found the work environment within your

office to be quite unhealthy and disrespectful.” (Moore Aff. ¶

19 and Ex. 17.)

Based upon her concerns over the negative reports she had

received about Daly’s behavior, Dr. Moore met with Daly on March

1 0 , 1999. (Daly Aff. ¶ 2 1 ; Moore Aff. ¶ 20.) On March 1 2 , 1999,

Dr. Moore followed up by sending Daly an e-mail restating the

list of concerns they had discussed on March 1 0 . (Moore Aff. ¶

20 and Ex. 18.) On March 3 1 , 1999, D r . Moore conducted Daly’s

annual performance evaluation, during which she provided Daly

with a six-page written “performance appraisal” that described in

detail much of the information about Daly’s behavior that D r .

Moore had collected over the previous three months. (Daly Aff. ¶

2 3 ; Moore Aff. ¶ 21 and Ex. 19.) In that performance appraisal,

9 Dr. Moore placed Daly on a four-month post-initial probation and

directed her to “develop and review with [Dr. Moore] a plan to

achieve these two goals of correcting the unacceptable behaviors

and regaining the respect of students, staff and faculty.” (Daly

Aff. ¶ 2 4 ; Moore Aff. ¶ 23 and Ex. 19 at 5.) The March 31st

performance appraisal also informed Daly that failure to correct

the deficiencies identified in the evaluation, by the expiration

of the newly imposed probationary period, would result in

termination. (Moore Aff. ¶ 23 and Ex. 19 at 5.)

During the course of Daly’s four-month post-initial

probation, Dr. Moore received additional complaints about Daly’s

behavior from: (1) Betsy Haley, Director of UNH’s Memorial Union

Building, with whom Daly had worked on a conference that took

place on March 5-7, 1999 (Moore Aff. ¶ 24 and Ex. 2 0 ) ; (2)

Elizabethe Plante, Director of the University’s Sexual Harassment

and Rape Prevention Program (Moore Aff. ¶ 25 and Ex. 2 1 ) ; and (3)

Pat Gromley, Special Assistant to the President for Affirmative

Action, with whom Daly had also worked on the March conference

10 (Moore Aff. ¶ 26 and Ex. 2 2 ) . During April and May of 1999, Dr.

Moore had several conversations and written communications with

Daly in which she reminded Daly of her obligation to draft an

action plan for improving her interactions with students, staff

and faculty. (Moore Aff. ¶¶ 2 7 , 29-32 and Exs. 25-27.) At one

point, Daly indicated that she was not interested in preparing an

action plan, but wanted to be transferred to another position at

UNH. (Moore Aff. ¶ 27.) Subsequently, when it became apparent

that no transfer would be possible, Daly requested specific

information on the complaints that had been made against her, as

a prerequisite to preparing an action plan. (Moore Aff. ¶ 30.)

Dr. Moore denied her request, citing the confidentiality of the

evaluation process. (Moore Aff. ¶ 30.)

On May 2 0 , 1999, as she was exploring the possibility of a

transfer and negotiating with Dr. Moore over what information

would be disclosed, Daly filed a formal grievance with David

Butler, Assistant Vice President of Human Resources. Daly’s

grievance stated, in pertinent part:

11 I am grieving the actions of my supervisor, who having placed me on probation, has violated U.S.Y.V.C.8.3 in that she has failed to provide me a written description of expectations and necessary corrective actions I must take to successfully complete my probationary status.

I further grieve the retaliation taken against me by my supervisor for my awareness of the payroll fraud perpetrated by my supervisor’s partner, Deborah Hamilton, who was a part-time employee of my office. M s . Hamilton is currently employed elsewhere in the University. I have not been told of any action taken against M s . Hamilton and neither is the incident referenced in my extensive evaluation which curiously includes many dated references as well as patently false characterizations by my supervisor.

(Butler Aff., Ex. 2 ) .

On June 1 , 1999 Daly sent Dr. Moore a memorandum which

stated, in its entirety:

This memo is written to acknowledge your request for my probationary action plan.

My action plan is to continue to meet my program goals and objectives, and to pursue my grievance.

(Moore Aff., Ex. 28.)

12 Throughout June and July, Dr. Moore continued to ask Daly to

submit an action plan, and Daly continued to ask Dr. Moore for

specific information about the complaints that had been made

against her. (Moore Aff. ¶¶ 34-37 and Exs. 29-32.) When Daly

failed to submit an action plan by the end of her latest

probationary period, D r . Moore notified Daly that her employment

was being terminated. (Moore Aff. ¶ 38.) Daly’s letter of

termination stated, in pertinent part:

Since March 3 1 , we have met on numerous occasions to discuss your performance and the need for you to complete an action plan. On each occasion you have failed to provide the action plan as I have requested. You have communicated both orally and in written letter, your desire to know “specific details” of incidents and have purposely refused to comply with my request to develop a plan. I have warned you that failure to create an action plan would lead to an unsatisfactory probation, and to this date you have not complied with my request.

It is clear to me that significant aspects of your performance as Director of the Office of Multicultural Student Affairs continue to be unsatisfactory. More importantly, you have not provided any evidence of your willingness to accept responsibility for your performance nor have I seen any significant movement to correct i t . Repeated efforts by me and by others to help you improve your performance have not resulted in change on your part. Your refusal to comply with my requests has seriously

13 undermined and eroded any confidence I have in your ability to work in a collaborative relationship with me or other members of the campus community. You continue to debate the issues rather than take needed action to change these unacceptable behaviors or repair your credibility. You have ignored the informal and formal warnings that your behavior is unacceptable and that immediate correction is required.

I am therefore notifying you via this letter that your employment as Director of the Office of Multicultural Student Affairs at the University of New Hampshire is terminated effective July 3 0 , 1999.

(Moore Aff., Ex. 33.) Upon being terminated, Daly amended her

grievance to include a claim that she had been discharged in

violation of UNH regulations and in retaliation for raising the

unethical conduct of Dr. Moore in her pending grievance. (Butler

Aff., Ex. 6.) While it is not material to this matter, the court

simply notes, in the interest of completeness, that Daly’s

grievance was unsuccessful.

In response to her termination by UNH, Daly filed this

diversity action, alleging wrongful discharge and breach of

contract. In her wrongful discharge claim, Daly alleges that she

was terminated in retaliation for acquiring and disclosing

14 information concerning the double payment of wages to D r . Moore’s

domestic partner, Deborah Hamilton. In her breach of contract

claim, Daley alleges that UNH breached the covenant of good faith

and fair dealing implied in its employment agreement with her

because she was forced, by Dr. Moore, to hire Hamilton, whose

subsequent resignation from the OMSA triggered Moore’s

retaliatory investigation into Daly’s job performance, which

ultimately led to Daly’s termination. Daly has not, however,

claimed that UNH failed to provide her with the pre- or post-

termination grievance process to which she was entitled by virtue

of her employment agreement.

Discussion

In its Motion for Summary Judgment, UNH argues that: (1)

Daly’s wrongful discharge claim fails as a matter of law because

she was not an employee at will; (2) even if Daly is entitled to

bring a wrongful termination claim, such a claim must fail

because: (a) she was not terminated in bad faith, with malice or

in retaliation, and (b) she was not terminated for engaging in

15 conduct favored by public policy; and (3) Daly’s breach of

contract claim should be dismissed as a matter of law because:

(a) as an at-will employee (which she claims to be for purposes

of her wrongful termination claim) Daly had no employment

contract that could have been breached by UNH, (b) the undisputed

record does not support the factual predicate of her claim,

namely that Dr. Moore required Daly to hire Hamilton, (c) the

implied covenant of good faith and fair dealing simply does not

apply to the factual circumstances of this case, and (d) as a

matter of public policy, the court should not act as a “super

personnel department,” second-guessing UNH’s decision to fire

Daly.

Daly counters that: (1) she did not have an employment

contract with UNH, which means that she is entitled to bring an

action for wrongful discharge; (2) she was wrongfully discharged

because her termination was in retaliation for doing two things

favored by public policy: (a) asking UNH to follow its own

policies by providing her with a written corrective action plan,

16 and (b) bringing to light both the improper influence D r . Moore

exerted on her to hire Hamilton and Hamilton’s improper receipt

of double pay; (3) her job performance was excellent; and (4)

because Dr. Moore required Daly to hire Hamilton, UNH breached

the implied covenant of good faith and fair dealing by initiating

Daly’s termination process immediately after Hamilton resigned.

In her objection to UNH’s Motion for Summary Judgment, Daly

identifies no disputed issues of material fact.

Because Daly has identified no disputed issues of material

fact, and because UNH is entitled to judgment as a matter of law

on both of Daly’s claims, its Motion for Summary Judgment is

granted.

I. Relevance of Daly’s Employment Status.

UNH seeks judgment on Daly’s wrongful discharge claim on

grounds that this cause of action is available to at-will

employees but not to employees such as Daly, who held a “status

appointment” at UNH. In response, Daly says that a status

17 appointment is not the equivalent of an employment contract.

This dispute is beside the point. The tort of wrongful discharge

protects an at-will employee from being discharged: (1) out of

“bad faith, malice, or retaliation,” Wenners v . Great State

Beverages, Inc.,

(1995) (quoting Short v .

School Admin. Unit 1 6 ,

6 , 84 (1992)); and (2) because

he or she has “performed acts which public policy would encourage

or . . . refused to perform acts which public policy would

condemn,” id.; see generally Harper v . Healthsource New

Hampshire, Inc.,

(1996); Cloutier v . Great Atl.

& Pac. Tea Co.,

(1981). Employees subject

to employment agreements that specify the duration of employment,

or that require their employers to follow a particular process

before discharging them, are similarly protected, albeit perhaps

under a different legal theory, see Centronics Corp. v . Genicom

Corp.,

(1989) (adopting the elements of

wrongful termination as the elements of a cause of action for

breach of the implied covenant of good faith and fair dealing in

an employment agreement). Because the rights protected by the

18 implied covenant of good faith and fair dealing apply to all

employees, not just those employed “at will,” the court need not

decide, in this case, whether Daly was an at-will employee or was

protected by an employment agreement that extended pre-

termination rights.1

II. Wrongful Discharge.

All New Hampshire employees are protected from being

terminated out of bad faith, malice or retaliation and for acting

in accordance with the dictates of public policy. Thus, either

as a claim for wrongful termination or as one for breach of the

implied covenant of good faith and fair dealing, Daly is entitled

1 In arguing that Daly can have no cause of action for wrongful termination, UNH relies upon Censullo v . Brenka Video, Inc.,

0 , 42 (1st Cir. 1993) (citing Panto v . Moore Bus. Forms, Inc.,

(1988)), for the proposition that “[c]ontract employees are limited in their remedies for breach by the terms of the contract.” UNH’s position, however, is based upon a distinction without a difference. I f , strictly speaking, Daly is barred from bringing an action for wrongful termination, she nevertheless enjoyed the rights afforded at-will employees, which were implicit terms of any employment contract she may have had with UNH. Thus, the rule of Censullo does not bar Daly’s suit.

19 to challenge her termination on limited grounds. The problem

with Daly’s claim, however, is that she has failed to proffer

facts sufficient to create a triable issue with regard to the

public policy element of a cause of action for wrongful

termination.2

In her complaint, Daly alleges that she was discharged for

acquiring and disclosing knowledge of possible wrongdoing by

Hamilton, i.e., that Hamilton may have submitted duplicate pay

vouchers for three pay periods. (Compl. ¶ 29.) She further

claims that her discharge was contrary to public policy because

public policy encourages employees to report the wrongdoing of

their supervisors. (Compl. ¶ 30.) According to the

uncontroverted factual record, the only disclosure of any sort

that Daly made was contained in the grievance she filed with

2 Because Daly cannot prove the factual allegations on which she bases her wrongful termination claim, the Court need not reach the legal question whether any of the precipitating acts she alleges to have performed were acts that public policy would encourage, a proposition about which the court has considerable doubt.

20 David Butler. In that grievance she mentioned Hamilton’s payroll

irregularities and identified Hamilton as Dr. Moore’s partner.

Importantly, in her grievance, Daly characterized her probation

as D r . Moore’s retaliation for Daly’s knowledge of Hamilton’s

payroll irregularities.

Because Daly was already alleging retaliation due to her

knowledge of Hamilton’s double payments at the time she filed her

grievance, her complaint cannot be read as alleging that she was

terminated for making the disclosure contained in the May 20th

grievance. Rather, both the complaint and the grievance must be

read as claiming that retaliation was already underway no later

than March 3 1 , the date of Daly’s final performance evaluation,

and Daly herself contends that her mistreatment at the hands of

Dr. Moore began immediately after Hamilton resigned from her

position at the OMSA (Daly Dep. at 7 2 ) . However, the

uncontroverted factual record discloses that Daly: (1) never had

any independent knowledge of Hamilton’s alleged wrongdoing; (2)

did not learn about the double payments until February 1999 when

21 she was informed of them by Patsy Stuart; and (3) made no

disclosure of this information at any point prior to her May 20th

grievance. Thus, Daly has proffered no facts to support a claim

that she was disciplined or terminated because of her knowledge

or disclosure of Hamilton’s alleged wrongdoing. The only

colorable disclosure alleged in Daly’s complaint is her

“disclosure,” in the grievance she filed, of the relationship

between Dr. Moore and Hamilton. But Dr. Moore and Hamilton were

openly living together. Thus, Daly has produced no evidence to

support a claim that she was terminated for “disclosing”

something hitherto unknown, i.e., the personal relationship

between Dr. Moore and Hamilton. In short, as to the claim in her

complaint, Daly has not met her burden of showing a triable issue

of material fact.

In her objection to UNH’s Motion for Summary Judgment, Daly

introduces several new theories supporting her claim for wrongful

termination, asserting, for example, that she was actually

terminated for: (1) demanding that UNH follow its own

22 disciplinary procedures by providing her with a written

corrective action plan; and (2) disclosing to higher authorities,

during the course of her termination and grievance processes, the

wrongful influence exerted upon her to hire Hamilton and

Hamilton’s alleged payroll fraud. As to the second of these

theories, Daly has produced no evidence of any disclosure other

than that contained in her May 20th grievance. Similarly, she

has produced no evidence other than her own unsupported

conclusion that she was terminated for insisting that D r . Moore

provide her with a written corrective action plan. On the

uncontroverted factual record, no reasonable jury could conclude

that Daly was fired for anything other than her inappropriate –

and often criticized – behavior toward students, staff and

faculty, as well as her refusal to comply with the directive of

her supervisor to draft a plan for rectifying her inappropriate

behavior and the difficulties it caused.

In summary, UNH is entitled to judgment as a matter of law.

Whether Daly was or was not a contract employee, she was lawfully

23 discharged. Daly has failed to identify a triable issue with

respect to the public policy element of a cause of action for

wrongful discharge; she has provided no evidence of any act by

her, favored by public policy, that served as the basis for her

termination.

III. Breach of Contract.

The thrust of Daly’s breach of contract claim is that UNH

breached its implied covenant of good faith and fair dealing

because: (1) Dr. Moore required Daly to employ Hamilton; and (2)

Daly was terminated as a result of an investigation triggered by

Hamilton’s resignation from the OMSA and Dr. Moore’s presumed

resentment toward Daly over Hamilton’s apparently negative

experience in the OMSA. As a preliminary matter, the factual

record, including Daly’s own deposition testimony, does not

support the factual predicate of this claim. There is no

evidence from which a jury could conclude that Dr. Moore required

Daly to hire Hamilton. In her deposition, Daly conceded that Dr.

Moore never asked her to hire Hamilton. (Daly Dep. at 184.) It

24 was Daly, not Dr. Moore, who initiated their single conversation

related to Hamilton’s possible employment, and it is clear even

from Daly’s own deposition testimony that Dr. Moore participated

in the conversation with the understanding that Daly had already

decided to hire Hamilton. Furthermore, even if Dr. Moore had

directed Daly to hire Hamilton, Daly has not suggested how such a

directive, from her supervisor, would have deprived her of a

substantial portion of the value of her employment agreement, see

Centronics,

, or breached the implied covenant of

good faith and fair dealing in any other way recognized under New

Hampshire law. Similarly, Daly has identified no legally

cognizable theory under which Dr. Moore acted unfairly or in bad

faith by initiating a legitimate administrative investigation

into the operation of the OMSA in mid-December of 1998. While

that investigation began shortly after Hamilton’s departure from

the OMSA, contemporaneous problems with the office, including the

other student resignation, the Taylor Rental incident, and the

resignation of Dr. Ernest from the President’s Commission on the

Status of People of Color, fully justified Dr. Moore’s

25 investigation and subsequent disciplinary action. Daly has

failed to meet her burden of producing evidence sufficient to

support a trialworthy claim for breach of her employment

contract.

Conclusion

With respect to Daly’s wrongful termination claim, UNH has

established that Daly was discharged for lawful reasons related

to her unacceptable job performance while Daly has failed to

proffer any evidence sufficient to warrant a trial on this issue;

nothing in the record supports a claim that Daly was fired for

taking some action that public policy would encourage. With

respect to Daly’s breach of contract claim, she has failed to

proffer any evidence supporting her allegation that Dr. Moore

required her to hire Hamilton, and has identified no legal theory

under which that factual allegation, even if provable, would

constitute a breach of contract on the part of UNH. Accordingly,

UNH is entitled to judgment as a matter of law on both of Daly’s

26 claims. Defendant’s Motion for Summary Judgment (document n o .

10) is granted.

The Clerk of the Court shall enter judgment in accordance

with the terms of this order and close the case.

SO ORDERED.

Steven J. McAuliffe United States District Judge

September 1 9 , 2001

cc: Paul McEachern, Esq. Peter G. Beeson, Esq.

27