Providing Legal Services For More Than 125 Years

Disciplinary Firing

On Behalf of | Apr 3, 2012 | Employment Law

In October I authored an article herein discussing the John Balsamo v. University Systems of New Hampshire (hereinafter “UNH”) case in which the Court had dismissed some of the claims by Mr. Balsamo including the claims against individuals at UNH involved in the firing of Mr. Balsamo. As that time, the Court stated it would consider the remaining claim of breach of contract against UNH in a Motion for Summary Judgment. On March 2, 2012, the Court did so granting UNH summary judgment thereby ordering that Balsamo does not have the right to go forward with a trial on his claims.

John Balsamo was fired in September 2007 after working as a maintenance technician for the UNH Housing Office for slightly over one year. Balsamo’s time as an employee at UNH was marked with a variety of disciplinary issues. The most recent investigation leading to his firing focused on his comments about drug use and his repeated inappropriate conduct in regard to female students. One witness stated that Balsamo would regularly tell his co-workers in graphic terms that he would like to sleep with various female students and that Balsamo would plan his maintenance schedule so that he would arrive at female student’s dorm rooms as they came out of the shower in the morning. The letter of involuntary termination that was presented to Balsamo cited, among other things: he had made derogatory sexually explicit verbal remarks about female students and to female co-workers; his non-verbal behavior repeatedly caused female employees discomfort; he would openly discuss his current marijuana use with students; he got “wasted” with a student and expressed interest to get high with a resident; he made inappropriate comments about co-workers’ attire including a co-worker was wearing green panties with white pants; he made jokes with racial undertones including a racist joke about an Indian with cancer being referred to as to a “chemosabi”; he accessed dating websites for extended periods of time during work hours; he would respond differently to maintenance requests from female students; he used foul language in the presence of other employees and apartment residents and at least once directed profanities at male employees; and was known to have a “lead foot” when driving UNH vehicles and had lied to his supervisor about being pulled over for speeding. The termination letter also recounted the past corrective actions involving Balsamo and stated that his repeated and unwelcomed conduct violated UNH’s strong commitment to maintain learning and work environments free from discriminatory harassment and its standards of performance and conduct. Not swayed by the evidence against him, Balsamo grieved the decision to fire him and then stated that UNH breached their own policies.

The Court first noted in its analysis of the contract claim that when an employee relationship does not explicitly provide for a definite duration, it is presumed to be at will. Absent the violation of a statute, collective bargaining agreement, or aspect of public policy, the employer may discharge an at-will employee for any reason. Of course, the at-will status could be altered by agreement or an employment handbook could inadvertently establish certain contractual rights to employees. However, in this case, UNH had a very clear disclaimer in its employee handbook noting it did not establish any contract of employment with any staff members and also stated as to its step discipline procedures that it reserved the right to bypass those steps and terminate a staff member immediately if in its sole judgment the nature of the situation justified immediate termination. These provisions make it clear to employees that they do not have any contractual rights to employment. The Court found in this case that Balsamo did not have a right to go to trial on his remaining contract claim in that he had no contract with UNH. As an at-will employee, UNH was allowed to fire Balsamo without legal liability to him.

J. Daniel Marr is a Director and Shareholder at Hamblett & Kerrigan, P.A. His legal practice includes counseling businesses and individuals on a variety of legal issues and advocating on their behalf. Attorney Marr is licensed and practices in both New Hampshire and Massachusetts. Attorney Marr can be reached at [email protected].