King v. Hanover ( 1997 )

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.
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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.
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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
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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
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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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