King v. Hanover

• Court: Court of Appeals for the First Circuit
• Decided: June 30, 1997
• Docket: 96-2144
• Status: Published

Opinion

USCA1 Opinion

UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT

                                 ____________________



          No. 96-2144



                                    BRUCE H. KING,



                                Plaintiff - Appellant,



                                          v.



                                   TOWN OF HANOVER,



                                Defendant - Appellee.



                                 ____________________



                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                          FOR THE DISTRICT OF NEW HAMPSHIRE



                 [Hon. Joseph A. DiClerico, Jr., U.S. District Judge]
                                                 ___________________



                                 ____________________



                                        Before



                               Torruella, Chief Judge,
                                          ___________



                                Selya, Circuit Judge,
                                       _____________



                             and Saris,* District Judge.
                                         ______________



                                _____________________



               K. William Clauson for appellant.
               __________________

               Charles P. Bauer, with whom John  T. Alexander and Ransmeier
               ________________            __________________     _________

          & Spellman Professional Corporation were on brief for appellee.
          ___________________________________


____________________



                                    June 30, 1997

                                 ____________________


____________________



          *  Of the District of Massachusetts, sitting by designation.



TORRUELLA, Chief Judge.  Plaintiff-appellant Bruce King
                    TORRUELLA, Chief Judge.
                               ___________



          ("King")  worked  for  the  Hanover Department  of  Public  Works



          ("DPW") as a heavy equipment operator and truck driver.  King was



          supervised  by  Leo  Hamill  ("Hamill") from  July  1991  onward.



          Hamill's immediate supervisor was  Richard Hauger ("Hauger").  In



          March  1993, Hauger  informed King  that he  had decided  to take



          disciplinary action for  incidents in which  King was alleged  to



          have  destroyed town property.   King was suspended  for one week



          without  pay  and placed  on probation  for  ninety days.   After



          receiving notice  of the suspension and  probation, plaintiff did



          not return to work.



                    In May 1993, King exercised his right, under  the DPW's



          personnel policy manual, to appeal the disciplinary action to the



          Town  Manager.    A  hearing was  scheduled  for  May  26.   King



          requested that the hearing  be open to the public,  that the Town



          produce certain witnesses  to testify, that  the Town record  the



          hearing or  permit a court  reporter to do so  at King's expense,



          and  that the  town manager,  defendant Clifford  Vermiya, excuse



          himself  from the  proceedings based on  a conflict  of interest.



          When  all  of  these requests  were  denied,  King  chose not  to



          participate.



                    On July 21,  1993, King filed a  bill of equity in  the



          Grafton County  Superior Court  seeking reinstatement,  back pay,



          and damages.   The Superior  Court granted the  Town's motion  to



          dismiss.  On appeal  to the New Hampshire Supreme  Court, certain



          state law tort claims  were reversed and remanded.   King v. Town
                                                               ____    ____


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of Hanover, 139  N.H. 752 (1995).  The  state litigation was then
          __________



          stayed  pending resolution  of  this federal  action, which  King



          filed in  May 1994.  On  May 17, 1996 the  district court granted



          summary judgment on  King's retaliation claim and his due process



          claim.  See  King v. Town of  Hanover, 959 F.  Supp. 62 (D.  N.H.
                  ___  ____    ________________



          1996).   On  June 20,  1996, the  district court  granted summary



          judgment  on  King's  wrongful  discharge  claim,  Order  of  the



          District Court,  June 20,  1996 (unpublished), and,  on July  12,



          1996,  summary judgment  was granted  on his  breach of  contract



          claim, Order of the  District Court, July 12, 1996 (unpublished).



          The remaining  claims, for sexual harassment  and for intentional



          infliction of  emotional distress, were  tried before  a jury  in



          August 1996.  The jury returned a verdict for the defendants.



                    Before us today is an appeal from  the district court's



          summary  judgment rulings  as  to King's  retaliation claim,  due



          process claim,  wrongful discharge claim, and  breach of contract



          claim.  We affirm.



                                    I.  Background
                                    I.  Background



                    The dispute centers around a series of events, which we



          summarize  briefly.   King  received  favorable evaluations  from



          Hamill in both 1991 and 1992.   King claims that Hamill created a



          hostile  and  offensive sexual  atmosphere  in  the workplace  by



          "repeatedly ma[king] sexually suggestive,  socially inappropriate



          and  offensive  comments  in an  effort  to  engage  Plaintiff in



          conversations and  interactions  of an  inappropriate and  sexual



          manner."    Complaint    18.    Furthermore,  King  alleges  that


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Hamill's behavior  indicated that he thought  King was homosexual



          or interested in engaging in homosexual activity with Hamill.  As



          a  result, King claims to have  suffered "severe embarrassment, a



          high  level  of  stress,  and  personal  sense  of  humiliation."



          Complaint   24.



                    In  October  1992,  King  complained  to  Hauger  about



          Hamill's  behavior and  requested  reassignment.   No action  was



          taken.



                    The  Town claims  that  disciplinary  action was  taken



          against King in response to three work-related incidents.  First,



          in  December 1992,  King  drove  a  town  truck,  with  its  body



          elevated, into the  town garage,  causing $900 in  damage to  the



          truck.  In February 1993, King's truck slid off the road during a



          snowstorm.   Finally, in  March 1993, several  granite posts were



          damaged  in an area where  King had been  instructed to push back



          snow.  King  denied breaking the posts, but the  Town argued that



          he was responsible for the damage.



                                II.  Retaliation Claim
                                II.  Retaliation Claim



                    King   claims  that   the   Town  disciplined   him  in



          retaliation  for his October 1992 complaint to Hauger.  Title VII



          provides that:



                      [i]t  shall  be  an  unlawful  employment

                      practice for an employer  to discriminate

                      against  any  of  his  employees  .  .  .

                      because  [the  employee] has  opposed any

                      practice  made   an  unlawful  employment

                      practice by this  subchapter, or  because

                      he   has   made   a  charge,   testified,

                      assisted, or participated  in any  manner

                      in   an  investigation,   proceeding,  or

                      hearing under this subchapter.



                                         -4-



42 U.S.C.   2000e-3(a).



                    To  prevail,  King  must meet  the  familiar  McDonnell
                                                                  _________



          Douglas test.  See McDonnell Douglas Corp. v. Green, 411 U.S. 792
          _______        ___ _______________________    _____



          (1973).   First,  the plaintiff  must come  forward with  a prima



          facie showing of retaliation.  See id. at 802; Mesnick v. General
                                         ___ ___         _______    _______



          Electric Co., 950  F.2d 816, 827 (1st Cir. 1991).   The burden of
          ____________



          production then shifts  to the defendant,  who must articulate  a



          legitimate,  nondiscriminatory reason for  the adverse employment



          action.    The  production  of such  a  nondiscriminatory  reason



          dispels the presumption  of improper discrimination generated  by



          the  prima facie showing of  discrimination.  Id.   The plaintiff
                                                        ___



          then  must show that the  proffered reason is  actually a pretext



          for retaliation.  Id. at 823.
                            ___



                    In  order to state  a prima  facie case,  the plaintiff
                                          ____________



          must show  (1) that he  engaged in an  activity  protected  under



          Title  VII  or engaged  in protected  opposition to  an activity,



          which participation or opposition was known by the employer;  (2)



          one  or more  employment actions  disadvantaging him;  and (3)  a



          causal  connection   between  the  protected   activity  and  the



          employment   action.     See   Hoeppner   v.  Crotched   Mountain
                                   ___   ________       ___________________



          Rehabilitation  Center, 31 F.3d 9, 14 (1st Cir. 1994); Petitti v.
          ______________________                                 _______



          New England Tel & Tel. Co., 909 F.2d 28, 33 (1st Cir. 1990).
          __________________________



                    We agree with the district court's ruling that King has



          failed  to  establish  a   sufficient  causal  link  between  his



          allegations of  sexual  harassment and  the disciplinary  actions



          taken against him.


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As  we are  reviewing  the district  court's ruling  on



          summary judgment, we view  the facts in the light  most favorable



          to the non-movant, King.  See Smith v. F.W. Morse &  Co., 76 F.3d
                                    ___ _____    _________________



          413, 428 (1st Cir.  1996).  We need not,  however, grant credence



          to   "conclusory   allegations,   improbable    inferences,   and



          unsupported  speculation."  Medina-Mu oz v. R.J. Reynolds Tobacco
                                      ____________    _____________________



          Co., 896 F.2d 5, 8 (1st Cir. 1990).  In order to survive a motion
          ___



          for summary judgment, the plaintiff must point to evidence in the



          record that would  permit a rational factfinder  to conclude that



          the employment action was retaliatory.  This evidence must  "have



          substance  in the sense that  it limns differing  versions of the



          truth which a factfinder must resolve at an ensuing trial."  Mack
                                                                       ____



          v. Great Atl. & Pac. Tea Co., 871 F.2d 179, 181 (1st Cir. 1989).
             _________________________



                    In his  appellate  brief, King  fails to  point to  any



          evidence that  the employment  activity was retaliatory.   King's



          argument  regarding  causation  amounts  to the  following.    In



          October  1992,  King  complained  to  Hauger  regarding  Hamill's



          behavior toward him.  No record was kept of this complaint.  King



          claims that the incidents  for which King was disciplined  were a



          pretext for retaliation, and  the complaint was close in  time to



          the disciplinary action.   Although King produced depositions and



          affidavits of  witnesses to challenge the  appropriateness of the



          disciplinary   action,  this  evidence   contesting  the  factual



          underpinnings of the reasons for the discipline, without more, is



          insufficient to present a jury question regarding the retaliation



          claim.  See Hoeppner v. Crotched Mountain Rehab. Center, Inc., 31
                  ___ ________    _____________________________________


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F.3d  9, 17  (1st Cir.  1994).   It is  insufficient for  King to



          simply recount  that he  complained and  that he  was disciplined



          five  months  later.    He  must  offer  sufficient  evidence  of



          discrimination for a  rational factfinder to  find in his  favor.



          In this case, he offers no such evidence.



                            III.  Procedural Due Process2
                            III.  Procedural Due Process



                    King alleges that the disciplinary proceedings afforded



          him were insufficient and "denied his due process right to a fair



          hearing  on disciplinary  charges  in violation  of  42 U.S.C.   



          1983."  Appellant's Brief, at 17.  Specifically, King claims that



          he had  a right to  hire a  certified court reporter  at his  own



          expense to transcribe the sworn testimony at the hearing.



                    After  receiving the  Town's disciplinary  letter, King



          appealed,  as was his  right under  the Personnel  Policy Manual.



          The Town  Manager scheduled a  hearing, though he  refused King's



          request  that the  hearing be  public and  that the  Town produce



          certain town employees to testify.  King, represented by counsel,



          arrived at the  hearing with a certified  court reporter, brought



          at  his own expense.  When the  Town Manager refused to allow the


____________________



          2  The Supreme Court recently decided  a similar case, Gilbert v.
                                                                 _______

          Homar, __ U.S.  __, No. 96-65, 1997 WL 303380  (June 9, 1997), in
          _____

          which an  employee  at a  state  university in  Pennsylvania  was

          suspended  without pay.  That  case does not  govern our decision

          today,  however,  because in  Homar  the  Court assumed,  without
                                        _____

          deciding, that the  protections of the due  process clause extend

          to the suspension of a tenured public  employee.  Id. at *3.   In
                                                            ___

          our  case, King  is an  at-will employee,  rather than  a tenured

          employee,  and as such he  does not have  due process protections

          against a one week suspension followed by 90 days probation.



                                         -7-



reporter to record  the hearing, King  refused to participate  in



          the hearing.  The Town treated the appeal as withdrawn.



                    In  order to  succeed  on his  due process  claim under



          section 1983,  King must  show that  he  has been  deprived of  a



          constitutionally protected  liberty or property right.   See Paul
                                                                   ___ ____



          v. Davis, 424 U.S. 693, 701 (1976); Correa-Mart nez v. Arrillaga-
             _____                            _______________    __________



          Bel ndez, 903 F.2d 49, 53  (1st Cir. 1990).  Although  King fails
          ________



          to  identify  the precise  interest  that  he  believes has  been



          violated, our reading of  his brief and the record  suggests that



          he claims a deprivation of a protected property interest.



                    In  Board of Regents v. Roth, 408 U.S. 564, the Supreme
                        ________________    ____



          Court stated that:



                      To have a property interest in a benefit,

                      a person clearly  must have more than  an

                      abstract need for it.   He must have more

                      than a unilateral expectation of it.   He

                      must, instead, have a legitimate claim of

                      entitlement  to  it .  .  .  .   Property

                      interests .  . .  are not created  by the

                      Constitution.    Rather they  are created

                      and  their  dimensions  are   defined  by

                      existing  rules  or  understandings  that

                      stem from  an independent source  such as

                      state-law  rules  or understandings  that

                      secure certain benefits and  that support

                      claims of entitlement to those benefits.



          Id. at 577.
          ___



                    It is  well established  that a public  employee has  a



          constitutionally  protected property  interest  in his  continued



          employment when  he reasonably  expects that his  employment will



          continue.  Cummings v. South Portland  Hous. Auth., 985 F.2d 1, 2
                     ________    ___________________________



          (1st Cir. 1993).  An employee who can only be dismissed for cause



          has such an  expectation.  Id.  An at-will employee, however, has
                                     ___



                                         -8-



no reasonable expectation of continued employment.  Id.   Whether
                                                              ___



          an  employment contract  allows  dismissal only  for  cause is  a



          matter of state law.  Id.
                                ___



                    New Hampshire  law is  clear.  "[P]ublic  employment is



          not a constitutionally protected property right of the employee."



          Appeal  of Parker, 121 N.H. 986, 988 (1981); Colburn v. Personnel
          _________________                            _______    _________



          Comm'n, 118 N.H. 60, 64 (1978); see also Soltani v. Smith, 812 F.
          ______                          ________ _______    _____



          Supp. 1280,  1292 (D. N.H. 1993).   King did not  have a contract



          with the Town.  He was an at-will employee who could be dismissed



          at any time.   He had, therefore, no protected  property interest



          in his employment.



                    King  suggests that  the  Hanover Department  of Public



          Works  ("DPW") personnel policy manual  granted him the status of



          an employee that can be terminated only for cause, and only after



          the  completion of certain procedural steps.  It is possible that



          this manual restricted the  ability of the Town to  discipline or



          terminate  King.   See  Cummings,  985  F.2d  at  2.    Assuming,
                             ___  ________



          arguendo,  that King  is correct  in this  view, he  still cannot
          ________



          prevail  because the Town provided  all of the  process due under



          the manual.  King was  entitled to, and received, a hearing.   He



          complains that he was denied his "right to hire a certified court



          reporter  at his own expense," Appellant's Brief at 17, his right



          to  a public  hearing, and  his  right to  have the  Town produce



          certain  town employees  as  witnesses.   Nothing  in the  policy



          manual,  however,   provides   that  an   employee   subject   to


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disciplinary  action  short of  dismissal  is  entitled to  these



          procedures.



                               IV.  Wrongful Discharge
                               IV.  Wrongful Discharge



                    King   also  alleges  that   he  has   been  wrongfully



          discharged,  a common law violation under New Hampshire law.  See
                                                                        ___



          Wenners v.  Great State  Beverages, 140  N.H.  100 (1995),  cert.
          _______     ______________________                          _____



          denied, 116 S. Ct. 926 (1996).
          ______



                    Whatever  else may be required to prevail on a wrongful



          discharge  claim,  the  plaintiff   must  have  been  ctually  or



          constructively discharged.  King  was not.  He was  suspended for



          one week without pay and placed on  ninety days probation.  King,
                                                                      ____



          959 F. Supp. at  64.  The  district court noted that  "[a]lthough



          the plaintiff argues that his suspension could eventually had led



          to  a  dismissal, the  fact remains  that  the plaintiff  was not



          dismissed."  Id. at 68.
                       ___



                    It is conceivable that King could have saved this claim



          by arguing that  he was  constructively dismissed.   We need  not



          probe this point, however, for he has not advanced this argument.



          We  therefore  affirm  the  district  court's  grant  of  summary



          judgment on the wrongful discharge claim.



                                  V.  Contract Claim
                                  V.  Contract Claim



                    Finally, King attempts to avoid summary judgment on his



          contract  claim.   King's  appellate  brief  offers virtually  no



          argument  with respect  to this  claim.   Beyond a  few  lines of



          introduction, his argument, in its entirety, is as follows:



                         Mr.    King's   constitutional    [due

                      process] and contractual  claims that  he



                                         -10-



was  denied  a fair  disciplinary hearing

                      are similar, but are not identical.



                         Even if the Town  may deny him a court

                      reporter and a public hearing as a matter

                      of  constitutional  law, these  are clear

                      rights  under  New   Hampshire  law   and

                      therefore should have been provided under

                      his contractual right to a  fair hearing.

                      The common law of  contracts holds that a

                      contract    should   be    construed   to

                      incorporate the law.   17A  Am. Jur.  2d,

                      Contracts    346  and     381  ("[I]t  is

                      commonly said  that  all existing  . .  .

                      applicable  . . . statements . . . at the

                      time a contract is made become part of it

                      and must be read into it.").



          Appellant's Brief, at 41.



                    It  is  an  established  appellate  rule  that  "issues



          adverted to in a perfunctory manner, unaccompanied by some effort



          at developed argumentation, are deemed waived .  . . .  It is not



          enough merely to mention a possible argument in the most skeletal



          way, leaving the  court to do counsel's work . .  . .  Judges are



          not  expected to be mindreaders.  Consequently, a litigant has an



          obligation to spell  out its  arguments squarely  and distinctly,



          or else forever hold its  peace."  Willhauck v. Halpin,  953 F.2d
                                             _________    ______



          689, 700 (1st Cir.  1991) (quoting United States v.  Zannino, 895
                                             _____________     _______



          F.2d 1, 17 (1st Cir. 1990); see  also Ramos v. Roche  Prods., 936
                                      _________ _____    _____________



          F.2d 43, 51 (1st Cir. 1991) (brief must contain full statement of



          issues   presented   and  accompanying   arguments);  Continental
                                                                ___________



          Casualty  Co. v. Canadian Universal  Ins. Co., 924  F.2d 370, 375
          _____________    ____________________________



          (1st Cir. 1991) (mere mention,  without supporting argumentation,



          that  party  seeks  review  of  a   district  court's  ruling  is


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insufficient to  raise issue  on  appeal); Brown  v. Trustees  of
                                                     _____     ____________



          Boston Univ., 891 F.2d 337, 353 (1st Cir. 1989) (same).
          ____________



                    Accordingly,  we  find  King's  contract  claim  to  be



          waived.  He has failed to present any argumentation in support of



          his claim, and, indeed, has not even stated his contract claim in



          a manner that we can understand and analyze without guesswork.



                                   VI.  Conclusion
                                   VI.  Conclusion



                    For  the foregoing reasons, we affirm the ruling of the
                                                   affirm 
                                                   ______



          district court.


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