FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MAINE [Hon. John H. Rich, III, Magistrate Judge]
Glasser for appellant.
Frederick F. Costlow, with whom Heidi J. Hart and Richardson,
Whitman, Large & Badger were on brief, for appellee.
Howard, Chief Judge, Thompson and Kayatta, Circuit Judges.
THOMPSON, CIRCUIT JUDGE.
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.
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 qualified to fill the position.
Police function and dispatcher function shall be treated
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
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.
I & II: A review
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.
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
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).
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.
remand, the parties proceeded toward trial on Clukey's
procedural due process claim. 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."
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 ...