United States Court of Appeals
For the First Circuit
No. 01-2579
BRIAN J. DASEY,
Plaintiff, Appellant,
v.
GLENN B. ANDERSON, JOSEPH McLAUGHLIN, JOHN DiFAVA,
PAUL L. REGAN, JOHN DOE,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Rya W. Zobel, U.S. District Judge]
Before
Torruella and Lipez, Circuit Judges,
and McAuliffe,* District Judge.
Alan S. Fanger for appellant.
Matthew Q. Verge, Assistant Attorney General, with whom James
A. Sweeney, Assistant Attorney General, was on brief.
September 20, 2002
*
Of the District of New Hampshire, sitting by designation.
McAuliffe, District Judge. Brian Dasey ("Dasey") was
employed as a state trooper by the Massachusetts Department of
State Police ("MSP" or "State Police"). Before his probationary
period expired, he was discharged for making a material
misstatement in his employment application. Dasey filed suit,
asserting violations of the Massachusetts right-of-privacy law,
Mass. Gen. Laws ch. 214, § 1B; the Federal Civil Rights Act, 42
U.S.C. § 1983; and the Massachusetts Civil Rights Act, Mass. Gen.
Laws ch. 12, § 11H. The district court granted summary judgment in
favor of the defendants on all counts, and Dasey filed a timely
appeal. We affirm.
I.
The critical facts are not contested. After completing
his training at the State Police Academy, Dasey was enlisted as a
uniformed member of the State Police on August 27, 1999. During
the initial application process to become a state trooper, Dasey
affirmatively represented that he did not use illegal drugs and,
during the preceding five-year period, had not "used, possessed,
supplied or manufactured any illegal drugs." On September 14,
1999, while Dasey was still serving in a probationary status,1 MSP
Deputy Superintendent Glenn Anderson was given a videotape that had
been seized by state troopers while executing a search warrant in
1
Rule 7.1.3 of the Commonwealth of Massachusetts State Police
Rules and Regulations ("MSP Rules") provides: "During the first
twelve months following a member's initial enlistment, members
shall be retained on a probationary status. During the
probationary period, the Colonel/Superintendent may, as allowed by
law, discharge any member."
-2-
an unrelated homicide investigation. The videotape showed Dasey
and others apparently smoking marijuana.
After reviewing the videotape, Anderson and appellees
John DiFava, Joseph McLaughlin, and Paul L. Regan, all senior State
Police officers, concluded that Dasey had been caught on videotape
using an illegal drug and, therefore, had necessarily made a false
material statement when he denied prior drug use during the
application process. Anderson summoned Dasey to MSP headquarters,
where he was met by an attorney provided by the troopers' union,
the State Police Association of Massachusetts ("SPAM"). Dasey and
the union attorney then met with Anderson.
Anderson told Dasey that he had evidence (or
information)2 that Dasey had used an illegal drug and had falsely
denied doing so during the employment application process. Dasey
was offered an opportunity to resign in lieu of discharge.3 He
refused and was thereupon dismissed. Dasey was awarded a general
discharge, executed by DiFava in his capacity as Colonel and
Superintendent, which read, in its entirety, as follows: "In
2
Anderson does not recall whether he disclosed the
videotape's existence to Dasey and his union attorney at the
initial meeting, but he did play the videotape for the union
attorney after Dasey was formally discharged.
3
Four different types of discharge are available to members
of the State Police: (1) an "honorable discharge," which may be
given upon retirement; (2) an "ordinary discharge," which may be
given to a trooper who resigns at his or her own request, under
honorable conditions; (3) a "general discharge," which shall be
given to a trooper who does not qualify for either an honorable or
an ordinary discharge; and (4) a "dishonorable discharge," which
may be given to a trooper who is dismissed pursuant to an
administrative hearing, or after having waived the right to such a
hearing.
-3-
accordance with the Rules and Regulations governing the Department
of State Police, the below named officer is hereby given a GENERAL
DISCHARGE effective as of the close of business on Tuesday,
September 14, 1999."
II.
Dasey's amended complaint contained six counts. Counts
I, II, and III asserted claims for invasion of privacy, brought
under Mass. Gen. Laws ch. 214, § 1B, against various defendants.
Count IV described a claim under 42 U.S.C. § 1983, based upon
alleged violations of Dasey's federal constitutional rights to
privacy and due process, as well as deprivation of a property right
in continued employment allegedly established by Mass. Gen. Laws
ch. 268, § 13B. The due process claim in Count IV alleged
deprivation of both a property interest in continued employment and
a reputation-based liberty interest. Dasey contended that his
property interest in continued employment entitled him to a pre-
termination hearing, while his liberty interest entitled him to a
post-termination name-clearing hearing. Count V asserted a second
§ 1983 claim, involving a due process violation related to
deprivation of a property interest, and Count VI asserted a
violation of the Massachusetts Civil Rights Act. Because Dasey's
amended complaint dropped the MSP as a defendant, and names the
remaining defendants only in their individual capacities, neither
the Eleventh Amendment nor principles of sovereign immunity present
any obstacles to Dasey's claims.
-4-
The district court granted defendants' motion for summary
judgment as to Counts I, II, III, and the invasion of privacy claim
in Count IV. The court ruled that Dasey failed to allege that
defendants disclosed any facts that would qualify as "private" for
purposes of Mass. Gen. Laws ch. 214, § 1B, an essential element of
the cause of action, and, alternatively, that Dasey failed to show
that defendants acted unreasonably in reviewing the videotape, or
in taking action against him based on its content. The district
court also granted defendants' motion for summary judgment as to
Counts V and VI, and the due process claim in Count IV, on grounds
that Dasey, as a probationary trooper, had no reasonable
expectation that his employment would continue and, as a
consequence, had no constitutionally protected property interest in
his job, or concomitant due process rights, at the time he was
discharged. The district court did not directly address Dasey's
claim that he was entitled to a name-clearing hearing to protect a
reputation-based liberty interest.
III.
We review the district court's ruling on summary judgment
de novo. Pure Distribs., Inc. v. Baker, 285 F.3d 150, 154 (1st
Cir. 2002) (citation omitted). We may affirm the entry of summary
judgment "on any ground revealed by the record." Houlton Citizens'
Coalition v. Town of Houlton, 175 F.3d 178, 184 (1st Cir. 1999).
Summary judgment is appropriate when the record reveals "no genuine
issue as to any material fact and . . . the moving party is
entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c).
-5-
When ruling upon a party's motion for summary judgment, the
district court must "scrutinize the summary judgment record 'in the
light most hospitable to the party opposing summary judgment,
indulging all reasonable inferences in that party's favor.'"
Navarro v. Pfizer Corp., 261 F.3d 90, 94 (1st Cir. 2001) (quoting
Griggs-Ryan v. Smith, 904 F.2d 112, 115 (1st Cir. 1990)).
This appeal presents three basic issues; two are rather
straightforward, and one is slightly more complicated. We begin
with the less complicated matters -- Dasey's privacy and liberty-
interest claims -- and end with his asserted right to a pre-
termination hearing.
A. Privacy Interest
Massachusetts recognizes an actionable right of privacy.
The applicable statute provides that "[a] person shall have a right
against unreasonable, substantial or serious interference with his
privacy." Mass. Gen. Laws ch. 214, § 1B. Section 1B protects
people from "disclosure of facts . . . that are of a highly
personal or intimate nature when there exists no legitimate,
countervailing interest." Bratt v. Int'l Bus. Machs. Corp., 392
Mass. 508, 467 N.E.2d 126, 133-34 (1984) (citations omitted); see
also French v. United Parcel Serv., Inc., 2 F. Supp. 2d 128, 131
(D. Mass. 1998) ("To constitute an invasion of privacy, the
invasion must be both unreasonable and serious or substantial.")
(citation omitted). Massachusetts does not recognize a cause of
action for false light invasion of privacy. Canney v. City of
Chelsea, 925 F. Supp. 58, 70 (D. Mass. 1996) (citing ELM Med. Lab.,
-6-
Inc. v. RKO Gen., Inc., 403 Mass. 779, 532 N.E.2d 675, 681 (1989)).
Rather, Mass. Gen. Laws ch. 214, § 1B is typically invoked to
remedy "the gathering and dissemination of information which the
plaintiffs contended was private." Schlesinger v. Merrill Lynch,
Pierce, Fenner & Smith, Inc., 409 Mass. 514, 567 N.E.2d 912, 914
n.4 (1991) (citations omitted).
As the district court correctly decided, Counts I, II,
and III of the complaint fail, as a matter of law. Neither the
complaint nor Dasey's objection to summary judgment identified any
facts at all, and certainly no highly personal or intimate facts,
about Dasey that were either gathered or disseminated by any
defendant.
As for the personal or intimate nature of the allegedly
private facts disclosed in the videotape, French plainly
establishes that activity in the presence of others who owe no duty
of confidentiality -- a category which includes the subject matter
of the videotape -- is hardly "private." See French, 2 F. Supp. 2d
at 131. Likewise, the "gathering and dissemination" element has
not been met. Dasey neither alleged, nor produced any evidence
that suggested, that any defendant made or distributed the tape; he
only alleged that defendants watched it.4
4
Dasey argues that summary judgment should not have been
entered against him without first affording him an opportunity to
engage in discovery. But he cannot show how discovery would have
made any difference in establishing the private nature of the facts
disclosed -- i.e., the activity captured on tape. The content of
the tape is undisputed.
-7-
Even if Dasey had been able to satisfy the "gathering and
dissemination" and "private facts" elements of his claim under
Mass. Gen. Laws ch. 214, § 1B, that still would not have been
enough to survive summary judgment. To be actionable, the
gathering and dissemination of private facts must also be
unreasonable. When determining the reasonableness of an intrusion,
an "employer's legitimate interest in determining the employees'
effectiveness in their jobs should be balanced against the
seriousness of the intrusion on the employees' privacy." O'Connor
v. Police Comm'r of Boston, 408 Mass. 324, 557 N.E.2d 1146, 1150
(1990) (quoting Bratt, 467 N.E.2d at 135) (holding that police
department's "compelling interest in determining whether cadets
were using drugs" outweighed cadets' privacy interest in avoiding
unannounced urinalysis tests for which sample collection was
monitored by police personnel). Here, defendants' modest intrusion
into Dasey's privacy (if reviewing the seized videotape evidence
constituted an intrusion at all) was entirely reasonable in light
of their compelling interest in verifying the truthfulness of his
prior assurances regarding illegal drug use.5
5
As stated earlier, Dasey does not allege that any defendant
actively pried into his personal life. Instead, his privacy claims
appear to rest upon a contention that defendants somehow owed him
a duty to look away when his image appeared on the seized
videotape. Furthermore, because Dasey does not allege that the
videotape was created in aid of a grand jury investigation, his
argument that grand jury secrecy rules somehow were violated also
fails; his reliance on In re Doe Grand Jury Investigation, 415
Mass. 727, 615 N.E.2d 567 (1993) is, therefore, misplaced. See
also WBZ-TV4 v. Dist. Att'y for the Suffolk Dist., 408 Mass. 595,
562 N.E.2d 817, 821 (1990) ("the videotape has the characteristics
of material especially prepared for the grand jury which, when
received by them, should ordinarily be protected by the rule of
-8-
In sum, Dasey's privacy claims fail in three ways. Given
the allegations in his complaint, the factual assertions in his
objection to summary judgment, and his failure to identify
pertinent information that might have been developed through
discovery, this case involves: (1) no "private" facts of any sort;
(2) no acts constituting "gathering or dissemination" by
defendants; and (3) no unreasonable conduct on defendants' part.
Accordingly, the district court's entry of judgment in favor of
defendants on Dasey's state-law privacy claims (Counts I, II, and
III) is affirmed.
In Count IV Dasey asserted a claim based upon his federal
constitutional right to privacy. However, we are aware of no
constitutional principle that would bar defendants from, as Dasey
puts it, "using information concerning [his] private life as the
basis for terminating [his] employment." Because that allegation
is the sole basis upon which Dasey rests his federal constitutional
privacy claim, the district court's entry of judgment as to that
aspect of Count IV is affirmed as well.
B. Liberty Interest
Dasey included a § 1983 claim in Count IV of the
complaint, in which he asserted the deprivation of a reputation-
based liberty interest, occasioned by defendants' refusal to grant
him a post-termination name-clearing hearing. In their motion for
summary judgment, defendants specifically addressed Dasey's
grand jury secrecy").
-9-
liberty-interest claim. Dasey, however, did not respond, not even
to the extent of arguing, as he does now on appeal, that summary
judgment would be inappropriate due to the limitations placed on
discovery. Given his failure to press the issue in the district
court, defendants say he has forfeited it. We need not dwell on
whether Dasey has or has not forfeited the issue, however, because
we affirm the district court's entry of judgment based upon Dasey's
failure to plead a cognizable § 1983 claim arising from the
deprivation of a liberty interest.
A public employer's action may deprive an employee of a
constitutionally protected liberty interest in his or her
reputation under circumstances first identified in Paul v. Davis,
424 U.S. 693, 710-12 (1976). This court
interpreted [Paul's] requirements in Beitzell
v. Jeffrey, 643 F.2d 870 (1st Cir. 1981),
stating that "the Fourteenth Amendment
procedurally protects reputation only where
(1) government action threatens it, (2) with
unusually serious harm, (3) as evidenced by
the fact that employment (or some other right
or status) is affected." Id. at 878 (footnote
and citations omitted). Moreover, the
municipality terminating the employee must
also be responsible for the dissemination of
defamatory charges, in a formal setting (and
not merely as the result of unauthorized
"leaks"), and thereby significantly have
interfered with the employee's ability to find
future employment. Id. at 879.
Silva v. Worden, 130 F.3d 26, 32-33 (1st Cir. 1997) (holding that
under both the federal constitution and more favorable
Massachusetts state law, directed verdict for defendant employer
was appropriate when plaintiff produced no evidence that defendant
-10-
disseminated information about the reasons for plaintiff's
termination).
Here, Dasey has not alleged any communication by
defendants of the charges against him, other than statements made
directly to him at MSP headquarters on September 14, 1999. His
general discharge does not recite the grounds for dismissal, and
nothing he presented to the district court suggests any other
disclosures by defendants. Absent dissemination -- the means by
which an employee's reputation might be threatened with serious
harm -- a terminated public employee has no constitutional right to
a name-clearing hearing. Because Dasey did not allege, or present
any evidence of, conduct by defendants that, if proven, would
constitute a deprivation of any constitutionally protected liberty
interest, the district court's entry of judgment in favor of
defendants on that aspect of Count IV is affirmed.
C. Property Interest
What remains, then, is Dasey's claim that he was denied
due process when he was summarily discharged by Colonel DiFava, the
MSP Superintendent. The issue before us is whether the district
court erred in deciding that Dasey had no constitutionally
protected property interest in his continued employment, and,
therefore, was afforded all the process due him as a probationary
employee when the Superintendent summarily discharged him after
concluding he had made a material misstatement of fact related to
prior drug use.
-11-
Dasey contends that, notwithstanding his probationary
status, he was entitled to a pre-termination hearing because: (1)
the statute granting the right to a pre-termination hearing to
troopers who have completed the one-year probationary period, Mass.
Gen. Laws ch. 22C, § 13, does not expressly preclude extension of
that right to probationary troopers; (2) Mass. Gen. Laws ch. 150E
requires the MSP, as a public employer, to bargain with SPAM over
working conditions, including employee discipline; and (3) the
collective bargaining agreement ("CBA") negotiated by the MSP and
SPAM includes a bargained-for extension of the right to a pre-
termination hearing to all troopers, probationary and veteran
alike, a provision that overrides the MSP rule subjecting first-
year troopers to summary discharge. He further argues that even if
he was not entitled to a pre-termination hearing under the CBA, he
still had a reasonable expectation of continued employment (and
thus a protected property interest and the right to a pre-
termination hearing) based upon the customs and practices of the
MSP. Finally he says that the district court's resolution of that
disputed fact-bound issue (i.e., whether a custom or practice of
granting hearings to probationary troopers existed) was
inappropriate on summary judgment.
To prevail on his § 1983 claim Dasey must establish that
defendants deprived him of a constitutional right, in this case,
his property interest in continued employment, without due process.
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
-12-
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 no reasonable
expectation of continued employment. Id.
Whether an employment contract allows
dismissal only for cause is a matter of state
law. Id.
King v. Town of Hanover, 116 F.3d 965, 969 (1st Cir. 1997).
Furthermore, "an employer's unilateral declarations, promises, or
conduct regarding conditions of continued employment might in some
circumstances create a 'legitimate claim of entitlement to job
tenure.'" Correa-Martinez v. Arrillaga-Belendez, 903 F.2d 49, 55
(1st Cir. 1990) (quoting Perry v. Sindermann, 408 U.S. 593, 602
(1972)) (holding that written assurances in letter of engagement
were insufficient to contravene a "comprehensive network of
statutory and regulatory directives governing the terms of . . .
employment").
The terms of Dasey's employment are not set out in any
single document, but are found in three places: (1) Mass. Gen.
Laws ch. 22C; (2) MSP Rules; and (3) the CBA. Mass. Gen. Laws ch.
22C, § 13 provides, in pertinent part:
Any uniformed member of the state police who
has served for one year or more and against
whom charges have been preferred shall be
tried by a board to be appointed by the
colonel or, at the request of the officer, may
be tried by a board consisting of the colonel.
The MSP Rules, promulgated by the Colonel/Superintendent, under the
authority of Mass. Gen. Laws ch. 22C, § 10, contain two provisions
relating to a trooper's right to a pre-termination hearing. Rule
6.5.1 mirrors Mass. Gen. Laws ch. 22C, § 13, in providing that "[a]
-13-
member who has served for one year or more and has been formally
charged in accordance with Department Rules and Regulations shall
be tried by a State Police Trial Board appointed by the
Colonel/Superintendent." In contrast, Rule 7.1.3, quoted above,
explicitly provides that a uniformed member of the State Police who
has served for less than one year is on probationary status, and
may be discharged by the Superintendent without any pre-termination
hearing.
As noted, the third source describing terms of Dasey's
employment is the CBA, which provides, in part, as follows:
Except as otherwise limited by an express
provision of this Agreement, the Employer
shall have the right to exercise complete
control and discretion over its organization
and technology, including but not limited to,
the determination of the standards of services
to be provided and standards of productivity
and performance of its employees; the
establishment and/or revision of personnel
evaluation programs; the determination of the
methods, means and personnel by which its
operations are to be conducted; the
determination of the content of job
classifications; the appointment, promotion,
assignment, direction and transfer of
personnel; the suspension[,] demotion,
discharge, or any other appropriate action
against its employees with just cause; the
relief from duty of its employees because of
lack of work or for other legitimate reasons;
the establishment of reasonable work rules;
and the taking of all necessary actions to
carry out its mission in emergencies.
(emphasis supplied). The quoted language is found in a section of
the CBA entitled "Article 2 -- Managerial Rights/Productivity."
As between the CBA and MSP Rules, the parties agree that
in case of conflict, the CBA controls. Indeed, Article 3 of the
-14-
CBA confirms that "[i]f this Agreement contains a conflict between
matters covered by this Agreement and the Rules and Regulations of
the Massachusetts Department of State Police the terms of this
Agreement shall prevail." Similarly, the MSP Rules are prefaced by
a notice stating that "[t]he Massachusetts State Police Rules and
Regulations do NOT supersede any contractual agreements between the
Commonwealth and the members of the State Police, law, or Executive
Order as promulgated by the Governor of the Commonwealth of
Massachusetts."
At the time of his discharge, Dasey was not "[a]n
employee who [could] only [have been] dismissed for cause." King,
116 F.3d at 969. Plainly, neither Mass. Gen. Laws ch. 22C, § 13
nor the MSP Rules grant probationary employees like Dasey any right
to be discharged only "for cause." If Dasey had such a right, it
could have arisen only from the cryptic phrase, "with just cause,"
found in Article 2 of the CBA.
The CBA is a contract, subject to construction under
Massachusetts law, which provides as follows:
If a contract . . . is unambiguous, its
interpretation is a question of law that is
appropriate for a judge to decide on summary
judgment. Where, however, the contract . . .
has terms that are ambiguous, uncertain, or
equivocal in meaning, the intent of the
parties is a question of fact to be determined
at trial.
Seaco Ins. Co. v. Barbosa, 435 Mass. 772, 761 N.E.2d 946, 951
(2002) (citations omitted). Contractual language is ambiguous
"only if it is susceptible of more than one meaning and reasonably
intelligent persons would differ as to which meaning is the proper
-15-
one." Citation Ins. Co. v. Gomez, 426 Mass. 379, 688 N.E.2d 951,
953 (1998) (citations omitted). Mere disagreement between the
parties as to the meaning of a disputed contractual provision is,
of course, not enough to support a claim of ambiguity. See id.
(quoting Lumbermens Mut. Cas. Co. v. Offices Unlimited, Inc., 419
Mass. 462, 645 N.E.2d 1165, 1168 (1995)).
Article 2 of the CBA does not purport to grant
probationary employees the right to be discharged "only for just
cause," and, despite Dasey's energetic effort to tease such a right
out of Article 2, that provision cannot be fairly characterized as
ambiguous. Article 2 must be construed in the context of the
agreement as a whole, as well as in the context of the broader
comprehensive regulatory and statutory scheme of which it is a
part. See USM Corp. v. Arthur D. Little Sys., Inc., 28 Mass. App.
Ct. 108, 546 N.E.2d 888, 893 (1989) ("The object of the court is to
construe the contract as a whole, in a reasonable and practical
way, consistent with its language, background, and purpose.")
(citations omitted).
As noted above, Mass. Gen. Laws ch. 22C, § 13 expressly
limits the right to a pre-termination hearing to troopers with one
year or more of service, and Rule 7.1.3 expressly provides that
first-year probationary troopers are subject to discharge at the
discretion of the Superintendent. Given the detailed and
comprehensive statutory and regulatory provisions regarding the
availability of pre-termination hearings, as well as the specific
provisions related to terminating probationary employees, it simply
-16-
would not be reasonable to construe the passing reference to "just
cause" found in the general CBA provision describing management
rights as granting a probationary employee affirmative employment
protection that is both denied by exclusion in an applicable
statute and denied explicitly by rule.6
Article 2 does, obviously, include the phrase "with just
cause." But rather than granting rights to probationary employees
that are excluded by statute and denied by administrative rules,
that phrase is properly understood as reflecting the language of
and protections extended in Mass. Gen. Laws 22C, § 13. In addition
to granting veteran troopers the right to a pre-termination
hearing, that statute establishes the standard of review against
which discharge decisions are to be measured. A court to which a
trial board decision has been appealed shall "review such finding
and determine whether or not upon all the evidence such finding and
punishment was justified." Id. (emphasis added).
Necessarily, then, a trial board's pre-termination
disciplinary decision must be "justified." But only veteran
troopers are entitled to a pre-termination hearing before a trial
board. Thus, Article 2 of the CBA, properly construed, describes
MSP's "right to exercise complete control and discretion over . . .
the suspension[,] demotion, discharge, or any other appropriate
6
On this point, we observe that neither party has provided us
with a full copy of the CBA, and, while we have Article 2
("Managerial Rights/Productivity"), we do not have before us any
provisions under a title like "Employee Rights," where one would
normally expect to find a provision extending pre-termination
hearing rights to first-year troopers, if that was the intent of
the parties who negotiated the CBA.
-17-
action against its employees," but also recognizes that in
situations such as those covered by Mass. Gen. Laws ch. 22C, § 13,
in which pre-termination hearings and "justification" (or "just
cause") are required, the State Police will afford those rights
before taking disciplinary action. While the CBA might have been
drafted with greater clarity, nevertheless, understood in context
and in light of the statutory and regulatory scheme governing State
Police disciplinary rights and procedures, the phrase "with just
cause" in Article 2 is susceptible to only one reasonable
construction. The phrase pertains to the discipline or discharge
of veteran troopers, not probationary employees.
Because Article 2 of the CBA is unambiguous, we need not
look behind it to determine the intent of the parties (MSP and
SPAM). See Seaco, 761 N.E.2d at 951. However, even if the
disputed language were ambiguous, defendants would still be
entitled to summary judgment. Dasey asserts that the phrase "with
just cause" was the product of arm's-length labor negotiations
between the MSP and SPAM over disciplinary procedures applicable to
all troopers. Appellees, however, produced uncontroverted
deposition testimony from a member of the MSP bargaining team that
negotiated the current CBA, who testified that discipline was never
a subject of negotiations between the MSP and SPAM. Dasey
presented nothing to the district judge capable of putting that
fact in dispute, or from which it could be inferred that the
parties intended the phrase to provide just-cause protections, and
the right to a pre-termination hearing, to probationary troopers as
-18-
well as veterans. Accordingly, based upon the undisputed factual
record, it is apparent that use of the phrase "with just cause" in
Article 2 of the CBA was not intended by either the union or MSP to
establish a just-cause prerequisite for termination or the right to
a pre-termination hearing for probationary troopers.
Dasey fares no better with his customs and practices
argument. In Perry v. Sindermann, 408 U.S. 593, 601-03 (1972), the
Supreme Court established the principle that a constitutionally
protected property interest in continued employment can be founded
on an employer's institutional customs and practices. Perry
involved a college professor who claimed a property interest in
renewal of his teaching contract. Id. at 599-600. He avoided a
motion to dismiss in large part based upon the college's official
Faculty Guide, which provided:
Teacher Tenure: Odessa College has no tenure
system. The Administration of the College
wishes the faculty member to feel that he has
permanent tenure as long as his teaching
services are satisfactory and as long as he
displays a cooperative attitude toward his co-
workers and his superiors, and as long as he
is happy in his work.
Id. at 600. Likewise, in Colburn v. Trustees of Indiana
University, 739 F. Supp. 1268 (S.D. Ind. 1990), the claims of two
college professors who were not reappointed during their
probationary periods survived summary judgment, albeit barely:
In today's case . . . there is some
evidence in the record supporting the claim to
a custom of de facto reappointments during the
probationary period. When taking the
plaintiffs' evidence favorably for them on
this motion for summary judgment, reasonable
inferences can be drawn that the custom
-19-
existed and was indeed practiced. Plaintiffs
testified that they were "assured" of
reappointment if their performance remained
satisfactory, and the testimony that such
reappointments were "fairly automatic" can
support a finding that such a custom was
practiced. Plaintiffs' evidence on this issue
at this stage is weak, but it appears to be
just enough to get them past summary judgment.
Id. at 1293 (citation omitted). And, in Cheveras Pacheco v. Rivera
Gonzalez, 809 F.2d 125, 127 (1st Cir. 1987), we held that an
employee who did "not describe any promises or representations made
that might give rise to a property interest in employment" had no
cognizable property interest in that employment.
Unlike in Perry and Colburn, the evidence of custom and
practice Dasey produced in the district court fell well short of
establishing a reasonable expectation of continued employment on
his part. He produced no evidence -- not even his own affidavit --
of any oral assurances, made to him or others, to the effect that
first-year troopers were anything other than probationary employees
who could be terminated at the discretion of the
Colonel/Superintendent. He produced no evidence suggesting any
tradition or practice of affording probationary troopers pre-
termination hearings. Similarly, he produced no evidence that any
first-year trooper had ever been afforded a pre-termination
hearing.
At most, Dasey produced a patchwork of indirect evidence
from which a first-year trooper might extrapolate "a mere
subjective expectancy that his job would continue indefinitely."
Id. at 127 (citing Perry, 408 U.S. at 603) (internal quotation
-20-
marks omitted). Even if Dasey could prove, as he asserts, that
trainees (or cadets) at the police academy were afforded pre-
termination hearings, or that in the past some first-year troopers
have been presented with formal written charges before being
disciplined, that would not establish that first-year troopers
could reasonably believe their status to be anything other than
that of probationary employees, subject to discharge at the
discretion of the Colonel/Superintendent. Unlike probationary
troopers, trainees (or cadets) are not enlisted members of the
State Police, and the terms of their employment relationship with
the Commonwealth are not necessarily the same as probationary
troopers.
Because neither the collective bargaining agreement nor
the MSP's customs and practices provided Dasey with a reasonable
expectation of continued employment, he had no constitutionally
protected property interest in his job. Absent such an interest,
he had no right to a pre-termination hearing.
Conclusion
For the foregoing reasons, we affirm the district court's
entry of summary judgment in favor of the defendants.
-21-