Clukey v. Town of Camden

United States Court of Appeals
For the First Circuit

No. 14-1264

ALAN CLUKEY,

Plaintiff, Appellant,

v.

TOWN OF CAMDEN,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE

[Hon. George Z. Singal, U.S. District Judge]

Before

Howard, Chief Judge,
Lipez and Barron, Circuit Judges.

David Glasser for appellant.
Frederick F. Costlow, with whom Heidi J. Hart and Richardson,
Whitman, Large & Badger were on brief, for appellee.

August 10, 2015
 LIPEZ, Circuit Judge. Prior to being laid off, Alan

Clukey served as a police dispatcher for the Town of Camden ("the

Town") for thirty-one years. The sole issue on appeal, the second

one in this case, is whether the collective bargaining agreement

governing Clukey's employment contained an unambiguous condition

precedent requiring Clukey to submit his address and phone number

to the Town after his layoff in order to assert his recall rights.

Because we conclude that the pertinent contract provision

is ambiguous, we vacate the district court's grant of summary

judgment in favor of the Town and remand for further proceedings.

I.

A. Factual Background

Alan Clukey was an employee of the Camden police

department from 1976 until he was laid off in June 2007, at which

time he was the department's most senior dispatcher. The

collective bargaining agreement ("the CBA") between the police

union and the Town permitted the layoff of dispatchers "for any

reason" and provided for recall of qualified employees based on

seniority.

The CBA's recall provision, Article 19, Section 3,

states, in pertinent part:

The affected employee has recall rights for
twelve (12) months from the date of such
layoff. 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

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 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.1

It is undisputed that Clukey did not "file in writing" his address

or phone number with the Town Manager after his layoff, but it is

also undisputed that the Town had that information in its

employment records. During the twelve-month period after Clukey was

laid off on June 30, 2007, vacancies opened in the Camden Police

1
Article 19 is titled "Seniority," and Section 3 addresses
layoff and recall. Section 3's full text is 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.

The affected employee has recall rights for twelve
(12) months from the date of such layoff. 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.

(Emphasis added.)

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Department for a parking enforcement officer and an administrative

position, both of which Clukey was qualified to fill. However, the

Town neither recalled Clukey to employment nor notified him that he

was not being selected for the positions.

B. Procedural Background

1. The Lawsuit

In 2012, Clukey and his wife, Dera Clukey, brought this

lawsuit under 42 U.S.C. § 1983, alleging that the Town had deprived

him, without due process of law, of his property interest in his

right to be recalled. The Town moved to dismiss the complaint,

arguing that Clukey did not have a constitutionally protected

property interest in his asserted recall right. The magistrate

judge held that Clukey had a property interest in his right to be

recalled, but ultimately ruled that our decision in Ramírez v.

Arlequín, 447 F.3d 19 (1st Cir. 2006), compelled the conclusion

that Clukey's claim was not cognizable under § 1983. In

particular, the magistrate judge's recommendation relied heavily on

our conclusion that

[a] claim of breach of contract by a state
actor without any indication or allegation
that the state would refuse to remedy the
plaintiffs' grievance should they demonstrate
a breach of contract under state law, does not
state a claim for violation of the plaintiffs'
right of procedural due process.

Id. at 25 (citation omitted) (internal quotation marks omitted).

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Finding that Clukey, like the plaintiff in Ramírez, had asserted a

breach of contract claim rather than a federal due process claim,

the magistrate judge recommended dismissal. The district court

adopted the recommendation and dismissed Clukey's complaint for

failure to state a claim. Clukey appealed.

2. The First Appeal

In Clukey v. Town of Camden, 717 F.3d 52 (1st Cir. 2013)

("Clukey I"), we held that "the plain language" of the seniority

provision contained in Article 19, section 3 of the CBA,

compels a conclusion that Clukey had a
property interest in his right to be recalled.
The intent of the bargaining parties to grant
laid-off employees an entitlement to recall
could not be clearer. By its terms, this
proviso vests the "recall rights" in the
individual "affected employee" and provides
the Town no discretion in re-hiring qualified
laid-off employees with requisite seniority –-
"employees shall be recalled."

Id. at 58 (emphasis in original). We agreed with the district

court that "Clukey ha[d] stated facts which, if true, establish

that he has a constitutionally protected property interest in his

right to be recalled to employment with the police department of

the Town of Camden." Id. at 59. We further held that

[t]he Town's alleged failure to provide Clukey
with any notice at all, either before or after
filling open positions with new hires, states
a claim for a procedural due process
violation. That injury cannot be fully
redressed by recourse to a state law breach of
contract claim or the grievance procedures in
the Collective Bargaining Agreement.

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Id. at 62. We therefore vacated the dismissal of Clukey's action

and remanded the case to the district court.2

3. Decision on Remand

When proceedings resumed in the district court, both

parties moved for summary judgment on the basis of a stipulated

factual record. In its motion, the Town argued that the address

and phone number notification required by the recall provision is

a condition precedent for an employee's right to be recalled. The

Town asserted that, because Clukey did not file his address and

phone number in writing during the twelve-month period after his

layoff (i.e., between June 30, 2007, and July 1, 2008), he had no

right to be recalled. Clukey argued in response that the recall

provision required only that he file his address and phone number

with the Town "at some time in history," which he had done. He

claimed that his recall right was contingent only on his obligation

to alert the Town to any change in the information it had on file,

and no such change had occurred. Thus, the Town violated his right

to recall by failing to contact him when positions became

available.

The magistrate judge recommended judgment for the Town,

concluding that the CBA's notification requirement is a condition

2
Although we directed further consideration of all claims,
Clukey subsequently dismissed his state law claims and his wife,
Dera, relinquished her loss of consortium claim. The case thus
moved forward with only Clukey's § 1983 due process claim.

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precedent to the right to be recalled. Although the Town already

had the specified information for Clukey, the magistrate judge

determined that the requirement's purpose was to "indicate the

employee's intent to initiate the 12-month recall period" and

thereby relieve the Town of the burden to "search out all employees

who have been laid off (or 'affected') during the immediately

preceding 12 months" regardless of their interest in recall. The

district court accepted the recommended decision on the basis of

the magistrate judge's reasoning. Clukey timely appealed.

II.

A. The Issue

This appeal turns on the construction of the CBA recall

provision. Specifically, the sole issue before us is whether the

recall provision creates the condition precedent argued by the

Town, i.e., whether it "defines an event which must occur before a

contract becomes effective or before an obligation to perform

arises under the contract." Sands v. Ridefilm Corp., 212 F.3d 657,

661-62 (1st Cir. 2000) (internal citation omitted) (applying

Massachusetts contract law). If, as the Town asserts and the

district court held, the CBA conditions an employee's recall right

on the written submission, after layoff, of the employee's mailing

address and telephone number, this case would necessarily come to

an end. It is undisputed that Clukey did not submit information

post-layoff and, if he failed to meet such a condition precedent,

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he would never have acquired a right to recall. See Id. at 661

(holding that "an otherwise enforceable contract will be defeated

by the non-occurrence of a condition precedent"); Irving v. Town of

Clinton, 711 A.2d 141, 142 (Me. 1998) ("An elementary rule of

contract law is that the nonoccurrence of a condition discharges

the parties from their duties under the contract.").3

As the issue before us is thus a matter of contract

interpretation, our review of the district court's ruling is de

novo. See Grand Wireless, Inc. v. Verizon Wireless, Inc., 748 F.3d

1, 6 (1st Cir. 2014). Both parties accept that the contract should

be interpreted according to Maine law.

B. A Condition Precedent?

Although some courts have required "quite emphatic

words . . . to create a condition precedent forfeiting or limiting

rights," Midwest Precision Servs., Inc. v. PTM Indus. Corp., 887

F.2d 1128, 1136 (1st Cir. 1989), the parties' intention to impose

such a condition is what governs, see, e.g., Loyal Erectors, Inc.

v. Hamilton & Son, Inc., 312 A.2d 748, 753 (Me. 1973) (stating that

whether a contract provision creates a condition precedent depends

upon the intention of the parties, "to be determined by considering

not only the words of the particular clause, but also the language

of the whole contract as well as the nature of the act required and

3
Clukey argued that, by implication, we decided this
condition precedent issue in his favor in Clukey I. We did not.

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the subject matter to which it relates"); Restatement (Second) of

Contracts § 226 cmt. (a) ("No particular form of language is

necessary to make an event a condition.").

To determine whether the CBA recall provision -- Article

19, Section 3 -- creates a condition precedent, we necessarily must

focus closely on its specific language. We thus reproduce here its

pertinent sentence:

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.

(Emphasis added.) The significant difference between the two

independent clauses in this sentence is immediately apparent.

Although the second clause expressly conditions the recall right on

the submission of updated contact information, the first clause

contains no such condition in stating the employee's initial

obligation to submit his or her address and phone number in

writing.

Thus, as a matter of plain language, the parties to this

agreement appear to have made a conscious choice to include the

condition precedent language only in the second independent clause.

If they had been so inclined, the condition easily could have been

placed at the start of the sentence, advising that, "As a condition

of his/her recall right," the affected employee shall both submit

his/her current address in writing and keep the Town updated about

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changes during the twelve-month recall period. That is not,

however, what the provision says. We construe contracts so as "to

give force and effect to all of its provisions," and we will "avoid

an interpretation that renders meaningless any particular provision

in the contract." Acadia Ins. Co. v. Buck Const. Co., 756 A.2d

515, 517 (Me. 2000) (internal citation omitted). Some significance

may be attached, therefore, to the choice of the contracting

parties to link the "as a condition" language only to the affected

employee's obligation to keep the Town up to date on any changes to

his or her contact information.

Discounting this difference between the two parts of the

sentence, the Town maintains that the only reasonable

interpretation of the provision is that an employee acquires no

right to recall unless he or she submits the required contact

information in writing subsequent to layoff. The Town emphasizes

that the provision applies only to "affected" employees -- i.e.,

those who have been laid off -- and the Town posits that the

command to submit a mailing address and telephone number thus can

be met only by a post-layoff filing. That timing makes sense, the

Town argues, because the required filing would serve as notice of

the individual's continuing interest in employment with the Town.

Clukey, however, maintains that the differing language in

the two clauses reflects an important distinction between the

obligations they describe. In his view, the first clause obliges

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laid-off employees only to provide the Town with current contact

information so as to ensure that they can be recalled when

appropriate positions become available. Because the Town had his

address and phone number in his personnel file, Clukey asserts that

he was not required to make a pro forma re-submission of that

information. By contrast, the express conditional language

prefacing the second clause emphasizes the obligation to keep the

Town informed of changes in the employee's whereabouts if the

employee wishes to remain subject to recall. While the second

phrase clearly imposes a condition to recall, the first phrase

merely announces a need for contact information. If the Town

already has that information, the employee does not forfeit his

valuable right to recall because he did not make a redundant filing

of that information.

Thus, the parties' dispute over the timing of the filing

requirement of the recall provision is really a dispute over the

purpose of the requirement. The Town insists that the provision

requires an "affected employee" to submit his or her contact

information only after layoff, i.e., when he or she has become

"affected," because the filing serves as a notice of interest in

recall. In Clukey's view, the purpose of the filing requirement is

informational, and the only question is whether the "affected

employee" has submitted the requested information in writing to the

Town manager at some point so that the Town can notify the employee

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of the recall possibility. It is undisputed that the Town had the

information necessary to notify Clukey of that possibility.

We consider both of these constructions of the language

of the CBA to be plausible. Indeed, Clukey's interpretation

benefits from the contrast in language used in setting out the

provision's two independent requirements. As we have explained,

ordinary contract principles assign meaning to that difference in

language. Hence, a reasonable person could conclude that the

parties to the CBA expressly conditioned one obligation, but not

the other, because they believed that emphatic language was

unnecessary for the initial filing requirement. In other words,

the absence of "as a condition" language for the first obligation

may reflect the view of the signatories to the agreement that

employers ordinarily possess current contact information for their

employees.

Moreover, because the first clause does not refer to

timing at all, its purpose may be reasonably understood as solely

information-gathering, and not -- as the Town argues -- to provide

notice of the individual's interest in continuing employment. An

exclusive information-gathering purpose is reinforced when the

sentence under scrutiny is considered in context. While that

sentence says nothing about notice, the following sentence directs

an employee who is recalled to notify the Town within ten days if

he/she wishes to accept the position. See supra n.1. The

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provision thus contains only one plainly stated notice obligation

-- after recall. Hence, the provision is readily subject to the

reading that Clukey proposes: as an "affected employee," his

obligation is to be certain he has at some point submitted his

current contact information to the Town in writing.

Indeed, while no explicit language is required to create

a condition precedent, see Bucksport & B.R. Co. v. Inhabitants of

Brewer, 67 Me. 295, 299 (Me. 1877), there are indications that a

contractual ambiguity should be reasonably interpreted, where

possible, to avoid the forfeiture that would result from finding a

condition precedent. See Cantillon v. Walker, 78 A.2d 782, 784 (Me.

1951) ("The difficulty lies in the construction to be placed upon

the particular language used by the testatrix. The rule has been

well stated . . . as follows: 'Whether there has been a performance

or breach of a condition precedent or a condition subsequent

depends upon a construction of the condition, and a reasonable

construction is to be given to such condition in favor of the

beneficiary and against a forfeiture, and such construction is

dependent upon the circumstances of each particular case.'"

(quoting La Rocque v. Martin, 176 N.E. 734, 735-736 (Ill. 1931))).

Nonetheless, we cannot exclude as a matter of law the

notification purpose that the Town attributes to the filing

requirement. Although the first clause lacks the emphatic "as a

condition" wording, it does use language -- "shall file in writing"

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-- that we ordinarily would view as signaling an inflexible

obligation to perform. See Black's Law Dictionary 1499 (9th ed.

2009) (noting that the meaning of "shall" -- "[h]as a duty to" or

"is required to" -- is "the mandatory sense that drafters typically

intend and that courts typically uphold"); see also Webster's Third

New International Dictionary 2085 (3d ed. 1993) (noting that

"shall" as "used in directives . . . express[es] what is

mandatory"); Claudio-De León v. Sistema Universitario Ana G.

Méndez, 775 F.3d 41, 46-47 (1st Cir. 2014) (noting that "it is

axiomatic that the word 'shall' has a mandatory connotation").

That obligation is imposed on "[t]he affected employee." Thus, even

absent language expressly articulating a condition precedent, the

first clause reasonably may be read to require a formal, post-

layoff submission -- or re-submission -- of current contact

information to provide notice to the Town of the employee's desire

to be recalled.4

4
The magistrate judge and the district court assumed that the
obligation to provide contact information had to be motivated by a
notice purpose -- without addressing the possibility that it might
serve a more pragmatic information-gathering purpose that would
have been satisfied by Clukey providing contact information at an
earlier time. The magistrate judge observed that "[i]t is
reasonable to assume that the town would have a record of the
address and telephone number of any town employee subject to the
Agreement, obtained at the time of his or her initial hiring by the
town." The magistrate judge thus concluded that "the only reasons
for the presence of the notification requirement . . . are to
indicate the employee's intent to initiate the 12-month recall
period and to inform the town of the employee's current address and
telephone number, which may well differ from the ones in effect at
the time the employee was hired." The district court made a

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 Our discussion thus demonstrates that the purpose of the

recall provision's initial filing requirement is not apparent from

its plain language and, hence, as a matter of language, the timing

of that obligation is left ambiguous. We have also demonstrated

that reasonable rationales support the competing purpose arguments

of the parties. See Coastal Ventures v. Alsham Plaza, LLC, 1 A.3d

416, 424 (Me. 2010) ("[A] contractual provision is considered

ambiguous if it is reasonably possible to give that provision at

least two different meanings." (internal quotation marks omitted)

(alteration in original)). Although the question whether a

contract term is ambiguous is one of law, id., discerning the

meaning of an ambiguous contractual provision is a task assigned to

a factfinder, Schindler v. Nilsen, 770 A.2d 638, 643 (Me. 2001).

In performing that task, the factfinder may consider extrinsic

evidence "casting light upon the intention of the parties with

respect to the meaning of the unclear language." Hilltop Cmty.

Sports Ctr., Inc. v. Hoffman, 755 A.2d 1058, 1063 (Me. 2000)

(internal quotation marks omitted); see also Skowhegan Water Co. v.

Skowhegan Vill. Corp., 66 A. 714, 718 (Me. 1906) (stating that the

existence of a condition precedent under Maine law is "purely a

question of intent").

similar observation: "This filing requirement provides clarity and
certainty to both the affected employee and the Town regarding who
and how to recall an employee should recall become an available
option."

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 Fact-finding is thus necessary in this case.5 If the

factfinder concludes that the purpose of the filing requirement of

the recall provision is to notify the Town of a laid-off employee's

desire to be recalled, and that the failure to submit such a filing

after layoff forfeits the right of recall, Clukey loses his

lawsuit. He has stipulated that he did not make such a filing

post-layoff. If, however, the factfinder concludes that the

address and phone number requirement was intended only to ensure

that the Town had the correct contact information on file -- a

conclusion at odds with the condition precedent/notification

argument of the Town -- it would follow that, even if Clukey failed

to formally comply with the filing requirement, he would not

forfeit his recall rights. Any other conclusion would elevate the

"shall file in writing" requirement of the first independent clause

to the status of a condition precedent, denying Clukey his right to

recall, despite the factfinder's conclusion that the informational

purpose of the provision was satisfied by the address and phone

number of Clukey contained in the Town's personnel file.

5
We cannot resolve the ambiguity on the basis of the jointly
stipulated record because none of the agreed-upon facts shed light
on the intention of the union or the Town in agreeing upon the
provision's language at the time they entered into the CBA. In
addition, although it is undisputed that Clukey did not file the
information post-layoff, the stipulated record contains no
information about how or when the Town received Clukey's correct
telephone number and address.

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 III.

With reluctance, therefore, we must again remand this

case to the district court for further proceedings, including the

consideration of any extrinsic evidence that might be useful and

appropriate in determining the intent behind the filing requirement

of the recall language of Article 19, Section 3. We offer no view

of the Town's obligations to Clukey under the CBA if the factfinder

concludes that post-layoff submission of an employee's contact

information is not a condition precedent to his right to recall.

Because the district court, adopting the recommendation of the

magistrate judge, held that Clukey forfeited his right to recall by

failing to file his address and phone number after his layoff, it

did not address Clukey's procedural due process claim or an issue

raised on remand concerning his seniority status under the CBA.6

See Clukey I, 717 F.3d at 60 (noting that the district court might

want to engage in the analysis prescribed by Mathews v. Eldridge,

424 U.S. 319, 335 (1976), to determine what process Clukey was due

"if doing so becomes necessary to resolve the case"); Clukey v.

Town of Camden, No. 2:11-cv-372-GZS, 2014 WL 457658, at *1, *3 (D.

6
Upon remand after Clukey I, the parties raised two issues in
the district court: the condition precedent question addressed
above and "whether the seniority provisions of Sections 1, 2, and
3 of Article 19 are unambiguous and whether they did or did not
limit Clukey's seniority preference during the recall period to
positions involving dispatcher functions." This second issue,
understandably, was not addressed by the district court given its
ruling on the first.

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Me. Feb. 4, 2014) (describing the condition precedent and seniority

issues).

These outstanding issues reflect the piecemeal approach

to this litigation pursued by the parties. There is the potential

for more appeals in a case where we have already had two. This is

a regrettable situation that drains the resources of everyone

involved. We urge the parties to seriously consider settlement on

remand.

Vacated and remanded for further proceedings consistent

with this opinion. Costs to appellant.

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