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.

TORRUELLA, Chief Judge.
___________

Plaintiff-appellant Bruce King

("King")

worked

for

the

Hanover Department

of

Public

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

supervised

by

Leo

Hamill

("Hamill") from

Hamill's immediate supervisor was

March

1993, Hauger

have

without

pay

and placed

receiving notice

that he

incidents in which

destroyed town property.

King was

1991

onward.

Richard Hauger ("Hauger").

informed King

disciplinary action for

July

Works

had decided

on probation

of the suspension and

for

to take

King was alleged

King was suspended

In

to

for one week

ninety days.

After

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.

hearing was

scheduled

for

May

26.

King

requested that the hearing

produce certain witnesses

hearing or

and

When

all

to testify, that

permit a court

that the

himself

be open to the public,

from the

of

the Town record

reporter to do so

town manager,

these requests

were

Vermiya, excuse

a conflict

denied,

the

at King's expense,

defendant Clifford

proceedings based on

that the Town

King

of interest.

chose not

to

participate.

On July 21,

Grafton County

and damages.

dismiss.

1993, King filed a

Superior Court

The Superior

On appeal

state law tort claims

bill of equity in

seeking reinstatement,

Court granted the

were reversed and remanded.

-2-

back pay,

Town's motion

to the New Hampshire Supreme

the

to

Court, certain

King v. Town
____
____

of Hanover, 139
__________

stayed

filed in

N.H. 752 (1995).

pending resolution

May 1994.

summary judgment on

claim.

See
___

1996).

On

judgment

on

On

of

The

state litigation was then

this federal

May 17, 1996 the

King's

King

district court granted

King's retaliation claim and his due process

King v. Town of Hanover, 959 F.

____
________________

June 20,

action, which

1996, the

wrongful

Supp. 62 (D.

district court

discharge

claim,

N.H.

granted summary

Order

of

the

District Court,

1996,

June 20,

summary judgment

claim, Order of the

1996 (unpublished), and,

was granted

on his

claims, for sexual harassment

infliction of

emotional distress, were

claim.

a jury

in

The jury returned a verdict for the defendants.

judgment rulings

process claim,

contract

and for intentional

tried before

Before us today is an appeal from

summary

breach of

12,

District Court, July 12, 1996 (unpublished).

The remaining

August 1996.

on July

as

to King's

the district court's

retaliation claim,

wrongful discharge claim, and

due

breach of contract

We affirm.

I.
I.

Background
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

atmosphere

and

offensive sexual

"repeatedly ma[king] sexually suggestive,

and

offensive

comments

conversations and

manner."

in an

interactions

Complaint

18.

effort

of an

in

by

socially inappropriate

to

engage

Plaintiff in

inappropriate and

Furthermore,

-3-

the workplace

King

alleges

sexual

that

Hamill's behavior

indicated that he thought

King was homosexual

or interested in engaging in homosexual activity with Hamill.

result, King claims to have

high

level

Complaint

of

suffered "severe embarrassment, a

and

personal

sense

of

humiliation."

complained

to

Hauger

24.

In

Hamill's

stress,

As

October

1992,

behavior and

King

requested

reassignment.

about

No action

was

taken.

The

Town claims

that

disciplinary

action was

against King in response to three work-related incidents.

in

December 1992,

elevated, into the

truck.

King

drove

town garage,

town

truck,

causing $900 in

with

taken

First,

its

damage to

body

the

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

snowstorm.

Finally, in

March 1993, several

granite posts were

damaged

snow.

in an area where

King

King had been

instructed to push back

denied breaking the posts, but the

Town argued that

he was responsible for the damage.

II.
II.

King

retaliation

claims

Retaliation Claim
Retaliation Claim

that

the

Town

disciplined

for his October 1992 complaint to Hauger.

provides that:

[i]t

shall

be

an

unlawful

practice for an employer

against

any

because

[the

practice

of

his

to discriminate

employees

employee] has

made

an

employment

unlawful

he

charge,

assisted, or participated
in

an

investigation,

-4-

because

testified,

in any

manner

proceeding,

hearing under this subchapter.

employment

subchapter, or

made

opposed any

practice by this
has

or

him

in

Title VII

42 U.S.C.

2000e-3(a).

To

Douglas test.
_______

(1973).

prevail,

King

must meet

the

familiar

McDonnell
_________

See McDonnell Douglas Corp. v. Green, 411 U.S. 792

___ _______________________
_____

First,

the plaintiff

facie showing of retaliation.

Electric Co., 950

____________

must come

forward with

a prima

See id. at 802; Mesnick v. General

___ ___
_______
_______

F.2d 816, 827 (1st Cir. 1991).

The burden of

production then shifts

legitimate,

action.

nondiscriminatory reason for

The

production

dispels the presumption

the

to the defendant,

of such

must show that the

for retaliation.

In

must show

Title

nondiscriminatory

discrimination.

Id.
___

proffered reason is

reason

The plaintiff

actually a pretext

order to state

a prima facie case,

____________

engaged in an

or engaged

in protected

activity

the plaintiff

protected

opposition to

under

an activity,

which participation or opposition was known by the employer;

one

or more

causal

employment actions

connection

by

Id. at 823.
___

(1) that he

VII

the adverse employment

of improper discrimination generated

prima facie showing of

then

who must articulate

between

the

disadvantaging him;

protected

activity

and (3)

and

(2)

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

allegations of

sexual

sufficient

harassment and

taken against him.

-5-

causal

link

between

the disciplinary

his

actions

As

we are

reviewing

summary judgment, we view

to the non-movant, King.

413, 428 (1st Cir.

to

"conclusory

unsupported

the district

court's ruling

the facts in the light

on

most favorable

See Smith v. F.W. Morse & Co., 76 F.3d

___ _____
_________________

1996).

We need not,

allegations,

speculation."

however, grant credence

improbable

inferences,

and

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

the employment action was retaliatory.

substance

in the sense that

to conclude that

This evidence must

it limns differing

"have

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

evidence that

argument

October

appellate

the employment

regarding

1992,

brief, King

behavior toward him.

point to

activity was retaliatory.

causation

King

fails to

amounts

complained

to

to the

Hauger

King's

following.

regarding

for which King was disciplined

pretext for retaliation, and

the disciplinary action.

the complaint was close in

In

Hamill's

No record was kept of this complaint.

claims that the incidents

any

King

were a

time to

Although King produced depositions and

affidavits of

witnesses to challenge the

disciplinary

action,

this

evidence

appropriateness of the

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

___ ________
_____________________________________

-6-

F.3d

9, 17

(1st Cir.

simply recount

five

months

1994).

that he

later.

discrimination for a

It is

complained and

He

must

offer

insufficient for

that he

was disciplined

sufficient

rational factfinder to

King to

evidence

find in his

of

favor.

In this case, he offers no such evidence.

III.
III.

Procedural Due Process2

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

1983."

Appellant's Brief, at 17.

he had

a right to

hire a

in violation

of

42 U.S.C.

Specifically, King claims that

certified court reporter

at his

own

expense to transcribe the sworn testimony at the hearing.

After

appealed,

The Town

request

receiving the

as was his

right under

Manager scheduled a

that the

Town's disciplinary

hearing be

letter, King

the Personnel

Policy Manual.

hearing, though he

refused King's

public and

certain town employees to testify.

that the

Town produce

King, represented by counsel,

arrived at the

at

hearing with a certified

his own expense.

When the

court reporter, brought

Town Manager refused to allow the

____________________

The Supreme Court recently decided

Homar, __ U.S.
_____
which an

today,

__, No. 96-65, 1997 WL 303380

employee

suspended

at a

state

without pay.

however,

That

because in

deciding, that the

case, King

case does not

Homar
_____

employee,

the

protections of the due

is an

Pennsylvania

does not have

Court assumed,

without

process clause extend

Id. at *3.
___

rather than

In

a tenured

due process protections

against a one week suspension followed by 90 days probation.

-7-

was

govern our decision

employee.

at-will employee,

and as such he

(June 9, 1997), in

university in

to the suspension of a tenured public

our

a similar case, Gilbert v.

_______

reporter to record

the hearing.

In

section 1983,

the hearing, King

refused to participate

in

The Town treated the appeal as withdrawn.

order to

succeed

King must

constitutionally protected

on his

show that

he

due process

has been

claim under

deprived of

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).

to

interest

identify

the precise

that

Although

he

King fails

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

abstract need for it.

an

He must have more

than a unilateral expectation of it.

He

must, instead, have a legitimate claim of

entitlement

to

interests .

. .

Constitution.
and

their

existing

it .

Property

are not created

Rather they

dimensions
rules

or

are

by the

are created
defined

understandings

stem from

an independent source

state-law

rules

that

such as

or understandings

secure certain benefits and

by

that

that support

claims of entitlement to those benefits.

Id. at 577.
___

It is

well established

that a public

employee has

constitutionally

employment when

continue.

he reasonably

interest

in his

expects that his

continued

employment will

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

________
___________________________

(1st Cir. 1993).

has such an

protected property

An employee who can only be dismissed for cause

expectation.

Id.
___

An at-will employee, however, has

-8-

no reasonable expectation of continued employment.

Id.
___

Whether

an

employment contract

matter of state law.

allows

dismissal only

law is

clear.

for

cause is

Id.
___

New Hampshire

"[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).

with the Town.

at any time.

King did not

have a contract

He was an at-will employee who could be dismissed

He had, therefore, no protected

property interest

in his employment.

King

Works

suggests that

the

Hanover Department

("DPW") personnel policy manual

of Public

granted him the status of

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

the

completion of certain procedural steps.

this manual restricted the

terminate

King.

arguendo,
________

that King

prevail

See
___

ability of the Town to

Cummings,
________

985

is correct

King was

F.2d

in this

because the Town provided

the manual.

It is possible that

at

discipline or

2.

view, he

all of the

Assuming,

still cannot

process due under

entitled to, and received, a hearing.

He

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

reporter

to

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

a public

hearing, and

certain

town employees

manual,

however,

as

provides

his

right to

witnesses.

that

an

have the

Nothing

employee

Town produce

in the

policy

subject

to

-9-

disciplinary

action

short of

dismissal

is

entitled to

these

procedures.

IV.
IV.

King

discharged,

Wenners v.
_______

also

Wrongful Discharge
Wrongful Discharge

alleges

that

he

has

been

wrongfully

a common law violation under New Hampshire law.

Great State Beverages, 140

______________________

N.H.

100 (1995),

See
___

cert.
_____

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

______

Whatever

discharge

claim,

else may be required to prevail on a wrongful

the

plaintiff

constructively discharged.

King

must

was not.

one week without pay and placed on

959 F. Supp. at

64.

The

have

been

He was

ctually

suspended for

ninety days probation.

district court noted that

or

King,
____

"[a]lthough

the plaintiff argues that his suspension could eventually had led

to

dismissal, the

dismissed."

fact remains

that

the plaintiff

was not

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.
V.

Contract Claim
Contract Claim

Finally, King attempts to avoid summary judgment on his

contract

claim.

King's

argument

with respect

appellate

to this

brief

claim.

offers virtually

Beyond a

few

lines of

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

Mr.

King's

constitutional

process] and contractual

-10-

claims that

[due
he

no

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

rights

under

law, these

New

are clear

Hampshire

law

and

therefore should have been provided under

his contractual right to a
The common law of
contract

contracts holds that a

should

be

incorporate the law.

Contracts

346

commonly said
applicable

fair hearing.

and

that

construed

to

Am. Jur.

2d,

17A

381

("[I]t

all existing

. .

is
.

. . . 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

not

court to do counsel's work . .

expected to be mindreaders.

obligation to spell

out its

or else forever hold its

689, 700 (1st Cir.

. .

Judges are

Consequently, a litigant has an

arguments squarely

peace."

and distinctly,

Willhauck v. Halpin,
_________
______

1991) (quoting United States v.

_____________

953 F.2d

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);

Casualty Co. v. Canadian Universal Ins. Co., 924

_____________
____________________________

(1st Cir. 1991) (mere mention,

Continental
___________

F.2d 370, 375

without supporting argumentation,

that

party

seeks

review

of

district

court's

ruling

is

-11-

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.
VI.

For

district court.

Conclusion
Conclusion

the foregoing reasons, we affirm the ruling of the

affirm
______

-12-