West v. Hoover

Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 16-1172
WARREN WEST,
Plaintiff, Appellant,
v.
THOMAS HOOVER, in his capacity as Town Manager for the Town of
Coventry; GARY P. COTE, in his capacity as a Town Council member
for the Town of Coventry; KERRY L. MCGEE, in her capacity as a
Town Council member for the Town of Coventry; CARL L. MATTSON,
in his capacity as a Town Council member for the Town of
Coventry; PATRICK ROGERS; JOSEPH LARISA; ROBERT THIBEAULT, in
his capacity as Finance Director for the Town of Coventry,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. William E. Smith, U.S. District Judge]
Before
Thompson, Selya, and Barron,
Circuit Judges.
Timothy A. Williamson and Williamson Law on brief for
appellant.
Nicholas Gorham, Dianne L. Izzo, and Gorham & Gorham, Inc. on
brief for appellees.
March 3, 2017
BARRON, Circuit Judge. Plaintiff Warren West appeals
from the District Court's grant of summary judgment to the
defendants, certain officials of a Rhode Island town in their
official capacities and individual defendants associated with the
town. West contends that the termination of his employment with
the town violated his right to procedural due process under the
Fourteenth Amendment of the United States Constitution. We affirm.
I.
We recount the following undisputed facts. West served
as the finance director of the Town of Coventry, Rhode Island (the
"Town") from 2005 until his termination in 2011. In 2010, he was
suspended from that position because of allegations that, as the
District Court summarized, he failed to ensure that the Town comply
with Rhode Island's "maintenance of effort" law by "provid[ing] at
least the same amount of local funds to [its] school system[] from
year to year."
The Town provided West with the opportunity to
participate in a pre-termination hearing. Before that hearing,
held on August 20, 2010, West received a copy of a report that had
been prepared by a private auditor, Ernest Almonte, who was charged
with investigating the allegations against West. During the
hearing, West -- with the assistance of counsel -- was given the
opportunity to rebut the report's findings and conclusions. Later
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that day, West received notice that his employment had been
terminated.
West also received an opportunity to participate in a
five-day post-termination hearing before the Town's three-member
Personnel Board. Two different attorneys -- Town Solicitors
Patrick Rogers and Frederick Tobin -- served as hearing officers.
The Board's responsibility was to advise the Town Manager, Thomas
Hoover, as to whether West had been wrongfully terminated. Hoover
retained ultimate authority over the decision. During this post-
termination hearing, West had the opportunity to cross-examine the
Town's two witnesses -- Almonte and Hoover -- and to call two
witnesses of his own. West was not permitted to subpoena
witnesses, but he was able to enter documents into evidence.
The Board upheld West's termination. West then filed
suit in Rhode Island Superior Court. He brought a number of claims
under both state and federal law, including one under 42 U.S.C.
§ 1983, in which he contended that the Town and certain of its
officials had violated his Fourteenth Amendment right to
procedural due process. The defendants removed the case to federal
district court, which ultimately granted summary judgment to the
defendants. This timely appeal followed.
II.
"Summary judgment is appropriate when the record shows
that 'there is no genuine dispute as to any material fact and the
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movant is entitled to judgment as a matter of law.'" Farmers Ins.
Exch. v. RNK, Inc., 632 F.3d 777, 782 (1st Cir. 2011) (quoting
Fed. R. Civ. P. 56(a)). "A fact is material if it has the potential
of determining the outcome of the litigation." Id. (quoting
Rodríguez-Rivera v. Federico Trilla Reg'l Hosp., 532 F.3d 28, 30
(1st Cir. 2008)). Our review of the District Court's grant of
summary judgment is de novo, drawing all inferences in favor of
West as the nonmoving party. Id.A.
West first argues that the District Court erred in
concluding that his seven-count complaint, brought pursuant to 42
U.S.C. § 1983, "reduce[d] . . . to one general claim -- that the
Town violated [his] Fourteenth Amendment due process rights when
it terminated his employment." West, however, provides no argument
in support of the contention that the District Court was wrong to
hold that he "waived" all other claims alleged in his complaint.
Because West has "adverted to [that contention] in a perfunctory
manner, unaccompanied by some effort at developed argumentation,"
we apply the familiar rule articulated in United States v. Zannino,
895 F.2d 1, 17 (1st Cir. 1990), and "deem[]" that contention
"waived."
B.
West next argues that the District Court erred in holding
that, as a matter of law, the process he received both before and
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after his termination as finance director for the Town was
constitutionally adequate. As West concedes, the touchstone for
allegations concerning procedural violations of the Fourteenth
Amendment's Due Process Clause is not whether he was wrongfully
terminated. Rather, we look first to whether the employee was
"deprived of [his] property interest without . . . 'some kind of
hearing' and 'some pretermination opportunity to respond.'" Senra
v. Town of Smithfield, 715 F.3d 34, 38-39 (1st Cir. 2013) (quoting
Wojcik v. Mass. State Lottery Comm'n, 300 F.3d 92, 102 (1st Cir.
2002)). We look next to whether that initial "very limited
hearing" was "followed by a more comprehensive post-termination
hearing." Gilbert v. Homar, 520 U.S. 924, 929 (1997). We have
explained that a hearing -- whether pre- or post-termination --
"'need not be elaborate' as long as an employee receives (1) 'oral
or written notice of the charges against him,' (2) 'an explanation
of the employer's evidence,' and (3) 'an opportunity to present
his side of the story.'" Chmielinski v. Massachusetts, 513 F.3d
309, 316 (1st Cir. 2008) (quoting Cleveland Bd. of Educ. v.
Loudermill, 470 U.S. 532, 545-46 (1985)); Senra, 715 F.3d at 39
(holding that this "observation holds true for post-termination
hearings, which may be limited in scope").
Moreover, in cases in which the employee is granted both
a pre- and a post-termination hearing, we have explained that those
"proceedings are not evaluated for constitutional adequacy in
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isolation from each other." Senra, 715 F.3d at 39. Rather, "a
reviewing court studies the totality of the process received in
light of the factual record to determine if the procedural due
process was sufficient." Id.
West concedes that, before his termination, he received
notice "that he ha[d] been suspended with pay pending an
investigation into . . . the maintenance of effort issue" more
than six weeks before his pre-termination hearing. That is more
than twice the two-and-a-half-week advance notice that we held
constitutional in Cepero-Rivera v. Fagundo, 414 F.3d 124, 134 (1st
Cir. 2005), and close to the eleven-and-a-half-week advance notice
that we held constitutional in Torres-Rosado v. Rotger-Sabat, 335
F.3d 1, 10 (1st Cir. 2003).
In addition, as the District Court noted, there is no
question that, a week before the pre-termination hearing, West
received a "detailed account of why [the Town] was considering
terminating his employment," and that the Town "forwarded West a
copy of the Report that formed the primary basis for its decision."
And, as West admits, he had the opportunity at that hearing to
"provide[] the Defendants with a copy of his line by line
opposition . . . during this meeting." Thus, as in Chmielinski,
the record clearly shows that West was "aware that the [pre-
termination] hearing concerned discipline, as he had been
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suspended, and he appeared at the hearing with counsel and
presented evidence on his own behalf." 513 F.3d at 316.
But West did not just have the opportunity to make his
case at a pre-termination proceeding. He also received post-
termination process via a hearing that took place over five days.
During that post-termination hearing, as the District Court
emphasized, and as West does not dispute, "West, through his
counsel, extensively cross-examined both of the Town's witnesses,"
including Almonte and Hoover. In addition, the record clearly
shows that "West called two witnesses of his own, and submitted a
number of exhibits to the Board." We thus do not see how the
District Court erred in concluding that the record shows that, as
a matter of law, West "received far more than the minimum elements
of procedural due process." Torres-Rosado, 335 F.3d at 10.
C.
In response, West contends that both his pre- and post-
termination proceedings were a sham. In this regard, he emphasizes
the following facts that he alleges to be in dispute: (1) his
termination letter was prepared "well in advance" of his pre-
termination hearing; (2) he was terminated on the same day the
pre-termination hearing was held; (3) he was not able to confront
adverse witnesses during his pre-termination hearing; (4) new,
politically motivated appointments to the Personnel Board
presiding over his post-termination hearing were made in the month
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prior to that hearing; (5) the hearing officer, Patrick Rogers,
who presided over the first two days of his post-termination
hearing, was also the Town Solicitor, and therefore had a role in
the Town's investigation of West's alleged misconduct as finance
director; (6) one of the members of the Personnel Board was
appointed in violation of the Town's Home Rule Charter, and
therefore should have been removed; and (7) Rogers, as hearing
officer, failed to execute subpoenas West contends should have
been issued. But even assuming, favorably to West, that each of
these factual claims is true, none of them provides a basis for
overturning the District Court's grant of summary judgment to the
defendants. Farmers Ins. Exch., 632 F.3d at 782.
As to the first two factual issues that West raises, our
case law is clear that even where a decision-maker makes the
termination decision before the pre-termination hearing, and
drafts a corresponding termination letter, "[t]here is no
constitutional infirmity" as long as "the planned termination was
subject to revision." O'Neill v. Baker, 210 F.3d 41, 49 (1st Cir.
2000). West, however, does not point to any evidence in the record
suggesting that the relevant decision-maker -- Town Manager Hoover
-- had decided in advance of the pre-termination hearing that
nothing he heard there would have changed his mind.
As to West's contention that he was not able to confront
adverse witnesses at his pre-termination hearing, we have
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emphasized that a "termination hearing is not a court of law, and
the same level of process is not required." Chmielinski, 513 F.3d
at 316. And here, West acknowledges, he was able to "provide[] a
line by line response" to the report summarizing the allegations
against him. The rule articulated in Chmielinski, moreover,
applies all the more when an employee is "entitled to some process
after termination." Id. In that case, "the purpose of the
[pre-]termination hearing is solely to serve as 'an initial check
against mistaken decisions -- essentially, a determination of
whether there are reasonable grounds to believe that the charges
against the employee are true and support the proposed action.'"
Id. (quoting Loudermill, 470 U.S. at 545-46).
West next turns his attention to the new appointments
made in the month before his post-termination hearing to the Town's
Personnel Board. He contends that these appointments were made
with political motivations and deprived him of a meaningful
opportunity at his post-termination hearing before that Board to
rebut the charges against him.
But West's evidence in this regard is merely that the
Board's members -- two Republicans and one politically
unaffiliated holdover member -- were "hand-picked" by Town Council
Vice President Laura Flanagan. It is true that "a decisionmaker
could be so utterly biased as to deprive an employee of . . . [the]
error-correction ability" that is central to the procedural due
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process guarantee. Chmielinski, 513 F.3d at 318. But here the
District Court supportably concluded, on the basis of the summary
judgment record before it, that West had shown nothing either
suggesting that "Flanagan sought to create a politically oriented
personnel board" or "connect[ing] the political makeup of the
Council to his termination." West identifies no evidence in the
record that shows that the District Court erred in this regard.
Fifth, West suggests that he did not receive a meaningful
post-termination hearing because the officer presiding over the
hearing, Patrick Rogers, was also employed as the Town Solicitor,
and in that capacity had advised Town officials about their
investigation into West. But, as the District Court emphasized
and West does not dispute, Rogers was not a "decision-maker at
either of his hearings." Rather, it was "Hoover and the Personnel
Board, not Rogers, [who] ultimately decided West's fate." In any
event, the District Court rightly pointed out that West's due
process rights would not have been violated even if Hoover himself
-- the official responsible for terminating West -- had
participated in his post-termination hearing as a decision-maker.
See Chmielinski, 513 F.3d at 318.1
1 West separately contends that his procedural due process
rights were violated based on a "potential . . . conflict of
interest" between himself and Joseph Larisa, an attorney who was
hired as "special counsel" for the Town, and to whom West spoke
during the course of the Town's initial investigation of West's
conduct as finance director. West contends that he believed that
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Sixth, West contends that the Town's alleged violation
of its own Charter on its own deprived him of the constitutional
guarantee of procedural due process. The mere fact, however, that
a state law may have been violated provides no basis for finding
a federal constitutional violation. See Senra, 715 F.3d at 40
("[T]he federal Due Process Clause does not incorporate the
particular procedural structures enacted by state or local
governments." (quoting Chmielinski, 513 F.3d at 316 n.5)).
Finally, the District Court was clearly correct to
conclude that West was not entitled to subpoena witnesses. West
points to no authority suggesting that the District Court's
decision was incorrect on this point. And, as the District Court
emphasized, West did have the opportunity to "confront[] each of
the witnesses the Town presented against him, call[] to his defense
individuals who would willingly testify for him, and present[]
Larisa was acting as his attorney when they spoke in that initial
investigation. But, West points out, Larisa represented the Town
at West's post-termination hearing. West, however, did not testify
at the post-termination hearing, and he does not contend that the
reason that he did not do so was because Larisa would have cross-
examined him using allegedly privileged or confidential
information. In addition, West points to no evidence that suggests
that Larisa represented himself as West's attorney at any point
during his involvement in the proceedings leading up to West's
termination. Nor does West identify any other evidence showing
that Larisa's involvement in West's post-termination hearing
somehow tainted that hearing. Thus, while the District Court did
not discuss this issue, we do not see how these allegations suffice
to require us to vacate the District Court's grant of summary
judgment.
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documentary evidence to the Board in support of his case." He was
due no more. See id. at 40 (holding that where an employee was
"represented by counsel and was able to participate and to present
evidence to a neutral arbitrator," the employee's "post-
termination arbitration proceeding . . . satisfied [his] rights to
procedural due process").
III.
The judgment of the District Court is affirmed.
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