Clukey v. Town of Camden

• Decision Date: 25 June 2018
• Docket Number: No. 17-1120,17-1120
• Parties: Alan CLUKEY, Plaintiff, Appellant, v. TOWN OF CAMDEN, Defendant, Appellee.
• Court: U.S. Court of Appeals — First Circuit

894 F.3d 25

Alan CLUKEY, Plaintiff, Appellant,
v.
TOWN OF CAMDEN, Defendant, Appellee.

No. 17-1120

United States Court of Appeals, First Circuit.

June 25, 2018

David Glasser, White Plains, NY, for appellant.

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

Before Howard, Chief Judge, Thompson and Kayatta, Circuit Judges.

THOMPSON, Circuit Judge.

In 2007, the Town of Camden, Maine moved its police department's dispatch operations to the Knox County Sheriff's Department in the Town of Rockland. As a result, Camden laid off its three police dispatchers, including Plaintiff Alan Clukey who had been working as a Camden Police Department dispatcher for 31 years. Clukey sued Camden in 2011 pursuant to 42 U.S.C. § 1983, claiming Camden deprived him of his procedural due process rights because it violated the recall provision in his collective bargaining agreement (CBA). After a three-day trial in July 2016, a jury returned a verdict in favor of Camden. Clukey is challenging the result on several fronts. For the reasons that follow, we affirm.

I. BACKGROUND

The crux of this case centers on a section in Clukey's CBA setting out his right to be recalled to employment after layoff. The language of the recall provision is, in its entirety, as follows:

In the event it becomes necessary for the Employer to layoff employees for any reason, employees shall be laid off in the inverse order of their seniority, by classification with bumping rights. Bumping shall not be allowed between the police function and the dispatcher function. All affected employees shall receive a two (2) calendar week advance notice of layoff, and the Employer shall meet with the affected employee prior to the actual occurrence of layoff. Employees shall be recalled from lay-off according to their seniority provided they are

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qualified to fill the position. Police function and dispatcher function shall be treated separately.

The affected employee has recall rights for twelve (12) months from the date of such lay-off. 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. If the Town recalls an employee, they shall notify said employee by certified letter and said employee shall notify the Town in writing within ten (10) days of receipt of said letter if he/she wished to return to work. Said employee will be required to report to work within ten (10) days of giving notice to the Town of his/her desire to work.

Art. 19, § 3 of Agreement between Town of Camden and Camden Police Benevolent Association, July 1, 2006 through June 30, 2008 (emphasis added). We'll refer to the underlined section as the "filing requirement" from now on. The main issue at trial was whether the CBA's recall provision included a condition precedent to triggering the right to be recalled, requiring Clukey to submit his contact details to Camden's town manager to indicate his interest in being recalled. Before we dive in to Clukey's arguments in this appeal, let's take a step back to review what's happened in this case so far.

Clukey I& II: A review

This appeal is not the first time we have been dispatched to review a judgment resolving this case in Camden's favor. Camden initially responded to Clukey's complaint with a 12(b)(6) motion to dismiss, which the district court granted. We reversed, concluding (1) the plain language of the filing requirement indicated the CBA parties' clear intent to provide laid-off employees "an entitlement to recall"—indeed, it does say "employees shall be recalled"; (2) the scope of the recall right (that is, to which positions within the police department the recall right applied) was ambiguous; (3) Clukey properly alleged a violation of his federal procedural due process rights regardless of whether a viable state breach-of-contract claim might exist as well; and (4) the precise process due to Clukey could be determined by the district court after the parties developed a factual record. Clukey v. Town of Camden, 717 F.3d 52, 58, 60, 61, 62 (1st Cir. 2013) ( Clukey I ) (emphasis added). Ultimately, ever mindful of the posture of the case before us at that time, we held (1) Clukey "ha[d] stated facts which, if true, establish that he ha[d] a constitutionally protected property interest in his right to be recalled to employment with the police department of the Town of Camden" and (2) Clukey had adequately alleged that Camden deprived him of this interest without the requisite process when it provided no notice at all about the positions for which it was hiring during the twelve-month period following his layoff. Id. at 59, 62.

Back in district court, Camden answered Clukey's complaint and the parties filed cross-motions for summary judgment. Camden asserted the filing requirement created a condition precedent, so Clukey's right to recall would have been triggered only if he had filed his contact information with the town manager after he was laid off as an indication of his interest in being recalled. Clukey, on the other hand, claimed the sole purpose of the filing requirement was to ensure Camden had current contact details, not to create a condition precedent to his right to recall. The district court granted summary judgment in Camden's favor, finding the filing requirement unambiguously created the condition

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precedent argued by Camden. Clukey appealed, and we reversed once again. Clukey v. Town of Camden, 797 F.3d 97, 105 (1st Cir. 2015) ( Clukey II ).

The only issue before us in Clukey II was "whether the recall provision create[d] the condition precedent argued by [Camden]" in its motion. Id. at 101. After we closely examined the specific words, clauses, and structure of the CBA's recall provision, we found both parties' interpretations of the filing requirement plausible. Id. at 101–03. As a matter of law, therefore, we held the purpose and timing of the filing requirement were ambiguous. Id. at 103–04. We also held that the ultimate determination of whether the filing requirement created a condition precedent to the right to recall would be made by the fact finder as a matter of fact. Id. at 104. We noted there was no dispute that "Clukey did not submit [his contact] information post-layoff," so if it was found that "the CBA condition[ed] an employee's recall right on the written submission, after layoff, of the employee's mailing address and telephone number," then "this case would necessarily come to an end." Id. at 101, 104. We "remand[ed] to the district court for further proceedings, including the consideration of any extrinsic evidence that might be useful and appropriate in determining the intent behind the filing requirement." Id. at 105.

The jury trial

On remand, the parties proceeded toward trial on Clukey's procedural due process claim.¹ Before the trial started, Clukey filed two motions in limine. The first sought to prevent Camden's witnesses from testifying about their current interpretations of the CBA; the trial judge denied this motion completely. The second sought to prevent testimony about Clukey's right to recall only applying to a dispatcher position; the trial judge denied this motion to the extent Clukey wanted to exclude testimony and argument about whether his recall rights extended specifically to two non-union, non-dispatcher positions filled in the twelve months following his layoff (one for an administrative assistant and the other for a parking enforcement officer). In his written decision, the trial judge commented that, under Clukey's argument, he would bear "a burden at least equal to that of the town to present evidence of the intent of the union negotiators with respect to this language at the time the CBA was adopted."

At trial, the jury heard from eight witnesses; four from each side. Clukey was the first witness to testify. He told the jury he had started working as a dispatcher in 1976, he joined the police union in 1993 for "job security" and because "everyone else in the department was joining," and he was still a member of the police union when Camden eliminated his position and laid him off in 2007. He was the primary financial provider in his family and the source of the healthcare insurance benefits for him and his wife. He testified that he was "devastated," "discouraged, depressed, anxious, [and] couldn't sleep at night" by the news that he was going to be laid off. His depression lasted "a long time," especially when he couldn't find seasonal work. Clukey also testified that, in the years following his layoff, he hadn't been able to find work as reliable and secure as the dispatcher position; instead he had worked on a seasonal basis with his brother, painting houses.

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Clukey also talked about the two positions at the Camden Police Department that were filled after his layoff. He testified he didn't apply for the administrative assistant position...