Clukey v. Town of Camden

• Citation: 797 F.3d 97
• Decision Date: 10 August 2015
• Docket Number: No. 14–1264.,14–1264.
• Parties: Alan CLUKEY, Plaintiff, Appellant, v. TOWN OF CAMDEN, Defendant, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

797 F.3d 97

Alan CLUKEY, Plaintiff, Appellant

v.TOWN OF CAMDEN, Defendant, Appellee.

No. 14–1264.

United States Court of Appeals, First Circuit.

Aug. 10, 2015.

David Glasser, for appellant.

Frederick F. Costlow, with whom Heidi J. Hart and Richardson, Whitman, Large & Badger were on brief, for appellee.

Before HOWARD, Chief Judge, LIPEZ and BARRON, Circuit Judges.

Opinion

LIPEZ, Circuit Judge.

Prior to being laid off, Alan Clukey served as a police dispatcher for the Town of Camden (“the Town”) for thirty-one years. The sole issue on appeal, the second one in this case, is whether the collective bargaining agreement governing Clukey's employment contained an unambiguous condition precedent requiring Clukey to submit his address and phone number to the Town after his layoff in order to assert his recall rights.

Because we conclude that the pertinent contract provision is ambiguous, we vacate the district court's grant of summary judgment in favor of the Town and remand for further proceedings.

I.

A. Factual Background

Alan Clukey was an employee of the Camden police department from 1976 until he was laid off in June 2007, at which time he was the department's most senior dispatcher. The collective bargaining agreement (“the CBA”) between the police union and the Town permitted the layoff of dispatchers “for any reason” and provided for recall of qualified employees based on seniority.

The CBA's recall provision, Article 19, Section 3, states, in pertinent part:

The affected employee has recall rights for twelve (12) months from the date of such layoff. The affected employee shall file in writing his or her mailing address and telephone number, if any, with the Town Manager at his/her office and shall be obligated, as a condition of his/her recall rights for said twelve (12) month period, to continue to inform the Town Manager in writing of any change thereafter.¹

It is undisputed that Clukey did not “file in writing” his address or phone number with the Town Manager after his layoff, but it is also undisputed that the Town had that information in its employment records. During the twelve-month period after Clukey was laid off on June 30, 2007, vacancies opened in the Camden Police Department for a parking enforcement officer and an administrative position, both of which Clukey was qualified to fill. However, the Town neither recalled Clukey to employment nor notified him that he was not being selected for the positions.

B. Procedural Background

1. The Lawsuit

In 2012, Clukey and his wife, Dera Clukey, brought this lawsuit under 42 U.S.C. § 1983, alleging that the Town had deprived him, without due process of law, of his property interest in his right to be recalled. The Town moved to dismiss the complaint, arguing that Clukey did not have a constitutionally protected property interest in his asserted recall right. The magistrate judge held that Clukey had a property interest in his right to be recalled, but ultimately ruled that our decision in Ramírez v. Arlequín, 447 F.3d 19 (1st Cir.2006), compelled the conclusion that Clukey's claim was not cognizable under § 1983. In particular, the magistrate judge's recommendation relied heavily on our conclusion that

[a] claim of breach of contract by a state actor without any indication or allegation that the state would refuse to remedy the plaintiffs' grievance should they demonstrate a breach of contract under state law, does not state a claim for violation of the plaintiffs' right of procedural due process.

Id. at 25 (citation omitted) (internal quotation marks omitted). Finding that Clukey, like the plaintiff in Ramírez, had asserted a breach of contract claim rather than a federal due process claim, the magistrate judge recommended dismissal. The district court adopted the recommendation and dismissed Clukey's complaint for failure to state a claim. Clukey appealed.

2. The First Appeal

In Clukey v. Town of Camden, 717 F.3d 52 (1st Cir.2013) (“Clukey I ”), we held that “the plain language” of the seniority provision contained in Article 19, section 3 of the CBA,

compels a conclusion that Clukey had a property interest in his right to be recalled. The intent of the bargaining parties to grant laid-off employees an entitlement to recall could not be clearer. By its terms, this proviso vests the “recall rights” in the individual “affected employee” and provides the Town no discretion in re-hiring qualified laid-off employees with requisite seniority—“employees shall be recalled.”

Id. at 58 (emphasis in original). We agreed with the district court that “Clukey ha[d] stated facts which, if true, establish that he has a constitutionally protected property interest in his right to be recalled to employment with the police department of the Town of Camden.” Id. at 59. We further held that

[t]he Town's alleged failure to provide Clukey with any notice at all, either before or after filling open positions with new hires, states a claim for a procedural due process violation. That injury cannot be fully redressed by recourse to a state law breach of contract claim or the grievance procedures in the Collective Bargaining Agreement.

Id. at 62. We therefore vacated the dismissal of Clukey's action and remanded the case to the district court.²

3. Decision on Remand

When proceedings resumed in the district court, both parties moved for summary judgment on the basis of a stipulated factual record. In its motion, the Town argued that the address and phone number notification required by the recall provision is a condition precedent for an employee's right to be recalled. The Town asserted that, because Clukey did not file his address and phone number in writing during the twelve-month period after his layoff (i.e., between June 30, 2007, and July 1, 2008), he had no right to be recalled. Clukey argued in response that the recall provision required only that he file his address and phone number with the Town “at some time in history,” which he had done. He claimed that his recall right was contingent only on his obligation to alert the Town to any change in the information it had on file, and no such change had occurred. Thus, the Town violated his right to recall by failing to contact him when positions became available.

The magistrate judge recommended judgment for the Town, concluding that the CBA's notification requirement is a condition precedent to the right to be recalled. Although the Town already had the specified information for Clukey, the magistrate judge determined that the requirement's purpose was to “indicate the employee's intent to initiate the 12–month recall period” and thereby relieve the Town of the burden to “search out all employees who have been laid off (or ‘affected’) during the immediately preceding 12 months” regardless of their interest in recall. The district court accepted the recommended decision on the basis of the magistrate judge's reasoning. Clukey timely appealed.

II.

A. The Issue

This appeal turns on the construction of the CBA recall provision. Specifically, the sole issue before us is whether the recall provision creates the condition precedent argued by the Town, i.e., whether it “defines an event which must occur before a contract becomes effective or before an obligation to perform arises under the contract.” Sands v. Ridefilm Corp., 212 F.3d 657, 661–62 (1st Cir.2000) (internal citation omitted) (applying Massachusetts contract law). If, as the Town asserts and the district court held, the CBA conditions an employee's recall right on the written submission, after layoff, of the employee's mailing address and telephone number, this case would necessarily come to an end. It is undisputed that Clukey did not submit information post-layoff and, if he failed to meet such a condition precedent, he would never have acquired a right to recall. See Id. at 661 (holding that “an otherwise enforceable contract will be defeated by the non-occurrence of a condition precedent”); Irving v. Town of Clinton, 711 A.2d 141, 142 (Me.1998) (“An elementary rule of contract law is that the nonoccurrence of a condition discharges the parties from their duties under the contract.”).³

As the issue before us is thus a matter of contract interpretation, our review of the district court's ruling is de novo. See Grand Wireless, Inc. v. Verizon Wireless, Inc., 748 F.3d 1, 6 (1st Cir.2014). Both parties accept that the contract should be interpreted according to Maine law.

B. A Condition Precedent?

Although some courts have required “quite emphatic words ... to create a condition precedent forfeiting or limiting rights,” Midwest Precision Servs., Inc. v. PTM Indus. Corp., 887 F.2d 1128, 1136 (1st Cir.1989), the parties' intention to impose such a condition is what governs, see, e.g., Loyal Erectors, Inc. v. Hamilton & Son, Inc., 312 A.2d 748, 753 (Me.1973) (stating that whether a contract provision creates a condition precedent depends upon the intention of the parties, “to be determined by considering not only the words of the particular clause, but also the language of the whole contract as well as the nature of the act required and the subject matter to which it relates”); Restatement (Second) of Contracts § 226 cmt. (a) (“No particular form of language is necessary to make an event a condition.”).

To determine whether the CBA recall provision—Article 19, Section 3—creates a condition precedent, we necessarily must focus closely on its specific language. We thus reproduce here its pertinent sentence:

The affected employee shall file in writing his or her mailing address and telephone number, if any, with the Town Manager at his/her office and shall be obligated, as a condition of his/her recall rights for said twelve (12) month period, to continue to inform the Town Manager in writing of any change thereafter.

(Emphasis added.) The significant difference between the two independent clauses in this sentence is immediately apparent. Although the second clause expressly conditions the recall right...