Clukey v. Camden, ME , 894 F.3d 25 ( 2018 )

United States Court of Appeals
For the First Circuit
No. 17-1120
ALAN CLUKEY,
Plaintiff, Appellant,
v.
TOWN OF CAMDEN,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. John H. Rich, III, Magistrate Judge]
Before
Howard, Chief Judge,
Thompson and Kayatta, Circuit Judges.
David Glasser for appellant.
Frederick F. Costlow, with whom Heidi J. Hart and Richardson,
Whitman, Large & Badger were on brief, for appellee.
June 25, 2018
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 lay-
off, 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 separately.
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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
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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
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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).
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
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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
1
Clukey initially also alleged a violation of his substantive
due process rights and misrepresentation, and his wife alleged
loss of consortium, but these claims were dismissed at an earlier
stage of the litigation and were not tried to the jury.
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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.
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 because
then-Police Chief Roberts had told him he wasn't qualified for the
position and Clukey knew Chief Roberts would "probably be making
the ultimate decision as to who got hired for the job." He did
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not know about the parking officer position until after it was
filled, but testified he would "[a]bsolutely" have taken it if it
had been offered to him. Clukey also admitted, however, to
declaring he wouldn't work for Camden ever again, even if the job
paid $100 per hour. This statement was part of a letter he wrote
to the editor of a local Camden newspaper in July 2007 to thank
the townsfolk who, during a Camden town meeting, had opposed moving
the dispatch function out of town and to express his disappointment
that Camden's dispatcher positions had been eliminated.
Randy Gagne, a longtime member of the Camden Police
Department, was not available to testify at the trial in person,
but his deposition transcript was read into the record before the
jury during Clukey's case-in-chief. Gagne was a police lieutenant
from 2002 through 2010, then became Chief in 2011 and still held
this position at the time of his deposition. He testified he was
not a part of the layoff decision process in 2007 because he is
related to Clukey by marriage. He also testified the only layoff
that occurred in the Camden Police Department during his tenure
was of the dispatchers in 2007.2 None of Clukey's witnesses
addressed the meaning of the filing requirement.
2 Clukey also presented an expert witness who testified about
Clukey's lost wages. The jury did not reach the question about
damages so we omit a summary of this testimony. In addition,
Camden's town manager at the time of the trial testified briefly
as a rebuttal witness for Clukey about job advertising for Camden
in general, and specifically about the content of the advertisement
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Three of Camden's witnesses testified about their
interpretations of the CBA's filing requirement. Sharon Gilbert,
a member of Camden's board of selectmen at the time Camden approved
and signed the CBA in question, was one of the individuals who
reviewed and signed the contract. John French joined Camden's
board of selectmen in 1996 and was still on the board at the time
of his trial testimony. As a selectman, he reviewed the CBA before
the board approved it and was part of the contract's negotiations.
Roberta Smith, Camden's town manager from 2002 to 2011, was
involved in the administration of the 2007 CBA, meaning she
"reviewed the [CBA] each time it came up for renewal or at any
time day to day when any issue arose that [she] had to refer to
the contract."
All three witnesses testified the CBA gave Clukey the
right to be recalled to the position from which he was laid off,
i.e., a union dispatcher position, if this position became
available. Former town manager Smith testified Clukey's recall
right did not extend to the nonunion parking enforcement officer
and administrative assistant positions because these positions
were covered by internal personnel policies. All three interpreted
the filing requirement as requiring Clukey to file his name and
address with Camden to indicate his interest in being recalled if
for the parking enforcement officer and administrative assistant
positions and the salaries advertised for each.
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a dispatcher position became available. Smith also testified that
Clukey and the two other dispatchers laid off at the same time as
Clukey were not specifically told they needed to file their contact
information with Camden in order to indicate their interest in
being recalled and secure their right to recall. But one of the
other dispatchers did in fact file his name and address with Camden
so he could be considered for recall, leading Smith to "presume
. . . they understood the terms of the contract."3
At the end of the trial, the jury chose "yes" on the
first question on the special verdict form, which asked whether it
was more likely than not that the filing requirement "required the
plaintiff to file his mailing address and telephone number with
the town manager before he was entitled to be notified of a
possible recall, even if the town already had that information in
its files." As a result, the jury did not reach the other questions
on the verdict form and the district court entered judgment for
Camden.4 Clukey filed a multi-faceted post-trial motion, renewing
his request for judgment as a matter of law under Federal Rule of
3 Camden also presented testimony from a medical and
vocational case manager who provided expert testimony on labor
market surveys in 2007. Like Clukey's expert, his testimony was
relevant only to damages, which were not calculated by the jury.
4 Question two asked whether the right to recall extended to
the parking attendant and administrative assistant positions,
question three asked whether Clukey would have taken one of those
positions if offered, and question four asked for a damages
calculation.
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Civil Procedure 505, requesting a new trial under Rule 59, and
requesting relief from the judgment under Rule 60(b)(6). The
district court denied the motion in its entirety. Undeterred,
Clukey filed another appeal and we find ourselves recalled once
more to the weeds of Clukey's grievance against Camden.
II. DISCUSSION
Clukey's brief is by no means a model of organizational
clarity, but we have distilled his many arguments into three broad
categories. First, Clukey argues that the trial judge erred by
instructing the jury that each party had the burden of proving its
respective interpretation of the filing requirement because Camden
should have borne the sole burden to prove the filing requirement
contained a condition precedent. Next, Clukey argues Camden's
witnesses' interpretations of the filing requirement were
inadmissible extrinsic evidence because these testimonies were
self-serving and reflected their interpretations of the CBA
language at the time of trial and not Camden's interpretation of
the language when the CBA was finalized and executed in 2007.
Third, Clukey argues the trial judge erred by admitting evidence
about whether the scope of the recall right extended specifically
5 Both parties moved for judgment as a matter of law at the
close of evidence; the trial judge summarily denied both motions.
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to the nonunion parking enforcement officer and administrative
assistant positions which became available after Clukey's layoff.6
Burden of proof
The trial judge instructed the jury that "[e]ach party
[bore] the burden of proof with respect to his or her
interpretation" of the filing requirement. Clukey challenges this
instruction as incorrect as a matter of law.
At the charge conference held in the morning of the third
and last day of trial, the parties discussed the proposed burden
of proof instruction, but neither lodged an objection to the
allocation of a concurrent burden of proof for the interpretation
of the filing requirement.7 Instead, the parties discussed the
6 Clukey also lists the denial of his post-trial motion as an
issue on appeal, but we deem this issue waived for failure to
provide any argument about why the denial of the motion was in
error. See Echevarría v. AstraZeneca Pharmaceutical LP, 856 F.3d
119, 139-40 (1st Cir. 2017) ("[I]ssues adverted to in a perfunctory
manner, unaccompanied by some effort at developed argumentation,
are deemed waived.") (alteration in original) (quoting United
States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990)).
7 As we mentioned earlier, the trial judge actually first
articulated this concurrent burden of proof in his written decision
addressing Clukey's motion in limine to exclude Camden's
witnesses' testimony about their interpretations. At that time,
he wrote:
[Clukey] ignores the fact that, under his definition of
extrinsic evidence on this issue [reflecting the intent
of the parties to the CBA at the time it was negotiated,
from the individuals involved in the negotiations], he
bears 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. He does not indicate that he has any such
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instruction only when Camden asked the trial judge what would
happen if the jury determined neither party had met its burden of
proving its interpretation; i.e., if they got hung up on that
point. Clukey engaged in the theoretical discussion that followed
about whether the trial would end with a mistrial if the jury did
not find for one interpretation over the other--a discussion
captured over several transcript pages--but he did not raise any
objection to the proposed instruction.
Back in the courtroom, when the trial judge instructed
the jurors, he told them Clukey bore the burden of proving his
case by a preponderance of the evidence, explained what this meant,
and then said:
[A]s to the contract at issue in this case, the parties
each contend that certain portions of Article 19 of the
[CBA]--that's Joint Exhibit 1 that will be with you in
the jury room--between the Town and the Camden Police
Benevolent Association that was in effect in 2007 should
be interpreted in a different way. Each party bears the
testimony to present. He cites no authority for the
proposition that, should the town fail to present the
necessary extrinsic evidence to support its
interpretation, he need not present any extrinsic
evidence in order for his interpretation to prevail. In
the absence of evidence that the town was the sole
drafter of the CBA (making it something other than a
collectively bargained agreement), the proponent of a
particular interpretation of an ambiguous term of that
contract bears the burden of proof with respect to that
interpretation. (Emphasis added).
So it cannot be said Clukey did not have a heads up on the
district court's thinking by the time of the charge
conference.
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burden of proof with respect to his or her interpretation
of those terms. (Emphasis added).
At the end of all of the instructions, the trial judge held a
conference at sidebar so the parties could note their objections
to the instructions for the record. Clukey lodged three
objections; none, however, challenged the allocation of the burden
of proof.
Before us, Clukey asserts that the trial judge
misallocated the burden of proof because alleging the existence of
a condition precedent is an affirmative defense and Camden should
have therefore borne the sole burden to prove its contention that
the filing requirement created a condition precedent. We review
his argument for plain error because he did not object to the
instruction at trial as required by Fed. R. Civ. P. 51. "[P]lain
error is one hard test to meet, particularly in civil litigation."
Rodríguez-Miranda v. Benin, 829 F.3d 29, 42 (1st Cir. 2016)
(quoting Bielunas v. F/V Misty Dawn, Inc., 621 F.3d 72, 78 (1st
Cir. 2010)). To establish the trial judge committed plain error
by instructing the jurors that the parties bore a concurrent burden
of proof on their respective interpretation of the filing
requirement, Clukey has to show that (1) a legal error in the
instruction (2) was an obvious error which (3) affected Clukey's
substantial rights and (4) "threaten[ed] the fairness, integrity
or public reputation of the proceedings." United States v. Rivera-
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Ruperto, 852 F.3d 1, 10 (1st Cir. 2017) (citing United States v.
Delgado-Marrero, 744 F.3d 167, 184 (1st Cir. 2014)). "'[P]lain
error' is 'an indisputable error by the judge, given controlling
precedent.'" United States v. Ponzo, 853 F.3d 558, 582 (1st Cir.
2017) (quoting United States v. Morosco, 822 F.3d 1, 21 (1st Cir.
2016)). Whether or not Clukey could demonstrate any error in the
trial judge's burden allocation instruction, he is nonetheless
unable to show that any error was clear or obvious. In fact,
Clukey has provided zilch legal support to bolster his argument
and in our probe of Maine law on this issue, we have found none.
That being said, one of the most basic principles of
civil litigation is that "the burden of proof rests upon the party
who asserts the affirmative of an issue." Federal Trial Handbook
Civil § 23:4 (4th ed.) (citing 29 Am. Jur. 2d Evidence § 156).
And it is important to remember that the trial was Clukey's
opportunity to prove his one and only claim: Camden had violated
his due process rights when it failed to provide him with notice
and a hearing before deciding not to recall him to either the
parking enforcement officer or administrative assistant positions
that became available in the year immediately following his layoff.
"To establish a due process violation, [a litigant] must 'show
first, a deprivation of a protected property interest, and second,
a denial of due process.'" Núñez Colón v. Toledo-Dávila, 648 F.3d
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15, 22–23 (1st Cir. 2011) (quoting Pérez-Acevedo v. Rivero-Cubano,
520 F.3d 26, 30 (1st Cir. 2008)).
Clukey bore the ultimate burden at trial to prove his
§ 1983 claim against Camden. Rogan v. City of Boston, 267 F.3d
24, 27 (1st Cir. 2001). Indeed, the basic legal principles
governing a § 1983 claim place the sole burden on the plaintiff:
In a suit brought under the provision of the Civil Rights
Act, authorizing a civil action for the deprivation of
rights, the plaintiff has the burden of proof and must
establish all elements which are essential to maintain
the cause of action. The plaintiff must prove the
alleged deprivation of rights, that the deprivation has
resulted from the breach of a duty owed by the defendant,
that the deprivation is of a right secured by the
Constitution and laws of the United States, and that the
defendant was acting under color of state law.
14A C.J.S. Civil Rights § 501 (2018). As we said in Clukey I,
"[u]nder Maine law, a constitutionally protected property interest
can be created in a public employment contract." Clukey I, 717
F.3d at 57-58 (citing Krennerich v. Inhabitants of Town of Bristol,
943 F. Supp. 1345, 1352 (D. Me. 1996)).8 But before the jury could
get to whether Camden had deprived Clukey of a protected property
interest, our holding in Clukey II meant Clukey first had to prove
he had triggered the right to recall.
Whether the filing requirement language was intended to
be a condition precedent or not to his recall right was a central
8 The parties agree that Maine law applies to the substantive
issues presented in this case. Clukey II, 797 F.3d at 101.
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--indeed, as we just said, threshold--issue at trial. We were
clear in Clukey II that each party had presented a plausible
interpretation of the filing requirement, rendering this contract
provision ambiguous as a matter of law. 797 F.3d at 103-04. A
trier of fact was therefore responsible for deciding which
interpretation was correct as a matter of fact when the parties
proceeded to trial on Clukey's entire § 1983 claim. Id. at 104.
Nowhere in Clukey II did we characterize or frame the
issue as an affirmative defense to Clukey's cause of action. As
a result, the burden of proving that the filing requirement was
not a condition precedent (and therefore that the right to recall
was triggered) likely rested with Clukey based on general
principles of burden allocation. To that end, Clukey could have
presented extrinsic evidence to support his position. Id. ("[T]he
factfinder may consider extrinsic evidence 'casting light upon the
intention of the parties with respect to the meaning of the unclear
language.'") (quoting Hilltop Cmty. Sports Ctr., Inc. v. Hoffman,
755 A.2d 1058, 1063 (Me. 2000)). But he did not.9 Instead, Clukey,
as was his druthers, relied entirely on the language of the CBA
when he argued during his closing that the jury need look no
9
We understand that the lack of extrinsic evidence presented
by Clukey was not for lack of effort in locating such evidence.
But even if Clukey could not find relevant extrinsic evidence to
present to the jury to prove his interpretation, it was still his
burden to meet.
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further than this language to determine that the filing requirement
did not require him to provide his contact details to the town
manager to trigger his entitlement to recall.10 To the extent the
district court may have erred in instructing the jury that both
parties bore the burden of proving their interpretations of the
filing requirement, if anything that instruction redounded to
Clukey's benefit. But given that Clukey has not demonstrated the
error was either clear or obvious, we see no plain error here.
Admissibility of testimony interpreting the filing requirement
In his brief, Clukey leans heavily on his arguments
against Camden's witnesses' interpretations of the filing
requirement as inadmissible extrinsic evidence of the town's
intent to create a condition precedent. He also asserts that
without their testimony, Camden could not have met its burden of
proving the filing requirement contained a condition precedent.
We review denials of motions in limine and objections to rulings
on the admissibility of evidence for abuse of discretion. United
States v. Brown, 669 F.3d 10, 21 (1st Cir. 2012) (evidentiary
10Indeed, he argued repeatedly in his closing that the jury
need look no further than the plain language of the provision to
discern the meaning of the filing requirement. For example:
What evidence is there for [Clukey's] interpretation of
the contract? The contract. It's English. . . . Read
it. If you read the plain English, you'll see that what
the Town is doing is being hyper-analytical, hyper-
constructive of plain words and stacking inferences on
inferences on inferences to try and create a situation
that is tenable to their position.
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rulings); Hatch v. Trail King Indus., Inc., 656 F.3d 59, 64 (1st
Cir. 2011) (motions in limine). "Under the 'abuse of discretion'
standard, this court will not substitute its judgment for that of
the district court unless left with a 'definite and firm conviction
that the court below committed a clear error of judgment.'"
Paolino v. JF Realty, LLC, 830 F.3d 8, 13 (1st Cir. 2016) (quoting
Schubert v. Nissan Motor Corp. in U.S.A., 148 F.3d 25, 30 (1st
Cir. 1998)), cert. denied, 137 S. Ct. 2093 (2017). "Even if an
abuse of discretion occurs, a new trial is not required unless the
error in admitting evidence 'had a substantial and injurious effect
or influence upon the jury's verdict.'" Ira Green, Inc. v.
Military Sales & Serv. Co., 775 F.3d 12, 18 (1st Cir. 2014)
(quoting Gomez v. Rivera Rodríguez, 344 F.3d 103, 118 (1st Cir.
2003) and citing Fed. R. Civ. P. 61).11
Even if we assume arguendo that the trial judge abused
his discretion when he allowed Camden's witnesses' interpretations
11 A quick aside about the standard of review. While Camden
does not question whether Clukey's appeal from the denial of his
motion in limine on this issue was properly preserved, Clukey is
clearly concerned about it. He claims that he renewed his motion
in limine at the start of trial, but the transcript does not back
this up. Clukey filed a "Motion to Correct Record on Appeal,"
asking the trial judge to modify the record if he remembered
Clukey's renewal of his motion in limine. The trial judge denied
the motion. None of this matters though, because prior to trial,
the judge made a definite ruling denying Clukey's motion in limine.
Clukey was therefore not required to renew his motion or his
objections to the testimony at the outset of trial. See United
States v. Brown, 669 F.3d 10, 22 n.18 (1st Cir. 2012); Rodríguez
v. Señor Frog's de la Isla, Inc., 642 F.3d 28, 35 (1st Cir. 2011);
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of the purpose of the filing requirement (though we doubt Clukey's
arguments against the admissibility of these testimonies are
winning ones), he cannot prevail because he doesn't argue the
jury's deliberations were tainted by hearing the supposed
inadmissible testimony. See Tersigni v. Wyeth, 817 F.3d 364, 369
(1st Cir. 2016) ("We may affirm in spite of an erroneous
evidentiary ruling if the error was harmless, meaning that 'it is
highly probable that the error did not affect the outcome of the
case.'") (quoting McDonough v. City of Quincy, 452 F.3d 8, 19–20
(1st Cir. 2006)). As a result, Clukey has waived on appeal any
argument that he was prejudiced. Such a waiver is fatal on
harmless error review.12
III. CONCLUSION
As we indicated in Clukey II and again reiterated here,
Clukey's case "necessarily c[a]me to an end" when the jury
Fed. R. Evid. 103(b) ("Once the court rules definitively on the
record--either before or at trial--a party need not renew an
objection or offer of proof to preserve a claim of error for
appeal."). Even so, he repeatedly objected during Camden's
witnesses' testimonies when they testified to their
interpretations of the filing requirement. All of this is to say
that we agree with Clukey that his objections on this issue are
preserved and we review for abuse of discretion.
12
To quickly address Clukey's last argument--that the
district court erred by admitting evidence about whether the scope
of the recall right was limited to union positions or whether it
extended specifically to the parking enforcement officer and
administrative assistant positions that became available in the
year after Clukey's layoff--we note that the jury did not reach
the question on the verdict form about whether Clukey's right
extended to these positions because it stopped its deliberations,
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determined 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," 797 F.3d at 101, and there was no
dispute that Clukey had not contacted the town manager with his
contact details after his layoff, id. at 99. "[I]f he failed to
meet such a condition precedent, he would never have acquired a
right to recall." Id. at 101 ("An elementary rule of contract law
is that the nonoccurrence of a condition discharges the parties
from their duties under the contract.") (quoting Irving v. Town of
Clinton, 711 A.2d 141, 142 (Me. 1998)). Without a right to recall,
there was no deprivation of a protected property interest and no
violation of his due process rights.
The judgment in favor of Camden is, therefore, affirmed.
Each party will bear its own costs.
as instructed on the special verdict form, after determining that
the purpose of the filing requirement was to notify Camden of one's
interest in being recalled. If there was any error in admitting
the testimony about the scope of the recall right, it is harmless.
See Tersigni v. Wyeth, 817 F.3d 364, 370 (1st Cir. 2016).
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