

                  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                                                                           
&amp; 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

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Hamill's behavior  indicated that he thought  King was homosexual

or interested in engaging in homosexual activity with Hamill.  As

a  result, King claims to have  suffered "severe embarrassment, a

high  level  of  stress,  and  personal  sense  of  humiliation."

Complaint   24.

          In  October  1992,  King  complained  to  Hauger  about

Hamill's  behavior and  requested  reassignment.   No action  was

taken.

          The  Town claims  that  disciplinary  action was  taken

against King in response to three work-related incidents.  First,

in  December 1992,  King  drove  a  town  truck,  with  its  body

elevated, into the  town garage,  causing $900 in  damage to  the

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

snowstorm.   Finally, in  March 1993, several  granite posts were

damaged  in an area where  King had been  instructed to push back

snow.  King  denied breaking the posts, but the  Town argued that

he was responsible for the damage.

                      II.  Retaliation Claim                                II.  Retaliation Claim

          King   claims  that   the   Town  disciplined   him  in

retaliation  for his October 1992 complaint to Hauger.  Title VII

provides that:

            [i]t  shall  be  an  unlawful  employment
            practice for an employer  to discriminate
            against  any  of  his  employees  .  .  .
            because  [the  employee] has  opposed any
            practice  made   an  unlawful  employment
            practice by this  subchapter, or  because
            he   has   made   a  charge,   testified,
            assisted, or participated  in any  manner
            in   an  investigation,   proceeding,  or
            hearing under this subchapter.

                               -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 &amp; 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 &amp;  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. &amp; 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.

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