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.

- 2 - 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