
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                                                               ____    ____                                         -2-          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                                         -3-          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.                                         -5-                    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                  ___ ________    _____________________________________                                         -6-          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                                         -9-          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                                         -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.  Conclusion                                   VI.  Conclusion                    For  the foregoing reasons, we affirm the ruling of the                                                   affirm                                                    ______          district court.                                         -12-
