Clukey v. Town of Camden

United States Court of Appeals
For the First Circuit

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.

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 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 so far.

Clukey I & II: A review

This appeal is not the first time we have been dispatched

to review a judgment resolving this case in Camden's favor. Camden

initially responded to Clukey's complaint with a 12(b)(6) motion

to dismiss, which the district court granted. We reversed,

concluding (1) the plain language of the filing requirement

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indicated the CBA parties' clear intent to provide laid-off

employees "an entitlement to recall"--indeed, it does say

"employees shall be recalled"; (2) the scope of the recall right

(that is, to which positions within the police department the

recall right applied) was ambiguous; (3) Clukey properly alleged

a violation of his federal procedural due process rights regardless

of whether a viable state breach-of-contract claim might exist as

well; and (4) the precise process due to Clukey could be determined

by the district court after the parties developed a factual record.

Clukey v. Town of Camden, 717 F.3d 52, 58, 60, 61, 62 (1st Cir.

2013) (Clukey I) (emphasis added). Ultimately, ever mindful of

the posture of the case before us at that time, we held (1) Clukey

"ha[d] stated facts which, if true, establish that he ha[d] a

constitutionally protected property interest in his right to be

recalled to employment with the police department of the Town of

Camden" and (2) Clukey had adequately alleged that Camden deprived

him of this interest without the requisite process when it provided

no notice at all about the positions for which it was hiring during

the twelve-month period following his layoff. Id. at 59, 62.

Back in district court, Camden answered Clukey's

complaint and the parties filed cross-motions for summary

judgment. Camden asserted the filing requirement created a

condition precedent, so Clukey's right to recall would have been

triggered only if he had filed his contact information with the

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town manager after he was laid off as an indication of his interest

in being recalled. Clukey, on the other hand, claimed the sole

purpose of the filing requirement was to ensure Camden had current

contact details, not to create a condition precedent to his right

to recall. The district court granted summary judgment in Camden's

favor, finding the filing requirement unambiguously created the

condition precedent argued by Camden. Clukey appealed, and we

reversed once again. Clukey v. Town of Camden, 797 F.3d 97, 105

(1st Cir. 2015) (Clukey II).

The only issue before us in Clukey II was "whether the

recall provision create[d] the condition precedent argued by

[Camden]" in its motion. Id. at 101. After we closely examined

the specific words, clauses, and structure of the CBA's recall

provision, we found both parties' interpretations of the filing

requirement plausible. Id. at 101-03. As a matter of law,

therefore, we held the purpose and timing of the filing requirement

were ambiguous. Id. at 103-04. We also held that the ultimate

determination of whether the filing requirement created a

condition precedent to the right to recall would be made by the

fact finder as a matter of fact. Id. at 104. We noted there was

no dispute that "Clukey did not submit [his contact] information

post-layoff," so if it was found that "the CBA condition[ed] an

employee's recall right on the written submission, after layoff,

of the employee's mailing address and telephone number," then "this

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case would necessarily come to an end." Id. at 101, 104. We

"remand[ed] 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." Id. at 105.

The jury trial

On remand, the parties proceeded toward trial on

Clukey's procedural due process claim.1 Before the trial started,

Clukey filed two motions in limine. The first sought to prevent

Camden's witnesses from testifying about their current

interpretations of the CBA; the trial judge denied this motion

completely. The second sought to prevent testimony about Clukey's

right to recall only applying to a dispatcher position; the trial

judge denied this motion to the extent Clukey wanted to exclude

testimony and argument about whether his recall rights extended

specifically to two non-union, non-dispatcher positions filled in

the twelve months following his layoff (one for an administrative

assistant and the other for a parking enforcement officer). In

his written decision, the trial judge commented that, under

Clukey's argument, he would bear "a burden at least equal to that

of the town to present evidence of the intent of the union

1
Clukey initially also alleged a violation of his substantive
due process rights and misrepresentation, and his wife alleged
loss of consortium, but these claims were dismissed at an earlier
stage of the litigation and were not tried to the jury.

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negotiators with respect to this language at the time the CBA was

adopted."

At trial, the jury heard from eight witnesses; four from

each side. Clukey was the first witness to testify. He told the

jury he had started working as a dispatcher in 1976, he joined the

police union in 1993 for "job security" and because "everyone else

in the department was joining," and he was still a member of the

police union when Camden eliminated his position and laid him off

in 2007. He was the primary financial provider in his family and

the source of the healthcare insurance benefits for him and his

wife. He testified that he was "devastated," "discouraged,

depressed, anxious, [and] couldn't sleep at night" by the news

that he was going to be laid off. His depression lasted "a long

time," especially when he couldn't find seasonal work. Clukey

also testified that, in the years following his layoff, he hadn't

been able to find work as reliable and secure as the dispatcher

position; instead he had worked on a seasonal basis with his

brother, painting houses.

Clukey also talked about the two positions at the Camden

Police Department that were filled after his layoff. He testified

he didn't apply for the administrative assistant position because

then-Police Chief Roberts had told him he wasn't qualified for the

position and Clukey knew Chief Roberts would "probably be making

the ultimate decision as to who got hired for the job." He did

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not know about the parking officer position until after it was

filled, but testified he would "[a]bsolutely" have taken it if it

had been offered to him. Clukey also admitted, however, to

declaring he wouldn't work for Camden ever again, even if the job

paid $100 per hour. This statement was part of a letter he wrote

to the editor of a local Camden newspaper in July 2007 to thank

the townsfolk who, during a Camden town meeting, had opposed moving

the dispatch function out of town and to express his disappointment

that Camden's dispatcher positions had been eliminated.

Randy Gagne, a longtime member of the Camden Police

Department, was not available to testify at the trial in person,

but his deposition transcript was read into the record before the

jury during Clukey's case-in-chief. Gagne was a police lieutenant

from 2002 through 2010, then became Chief in 2011 and still held

this position at the time of his deposition. He testified he was

not a part of the layoff decision process in 2007 because he is

related to Clukey by marriage. He also testified the only layoff

that occurred in the Camden Police Department during his tenure

was of the dispatchers in 2007.2 None of Clukey's witnesses

addressed the meaning of the filing requirement.

2 Clukey also presented an expert witness who testified about
Clukey's lost wages. The jury did not reach the question about
damages so we omit a summary of this testimony. In addition,
Camden's town manager at the time of the trial testified briefly
as a rebuttal witness for Clukey about job advertising for Camden
in general, and specifically about the content of the advertisement

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 Three of Camden's witnesses testified about their

interpretations of the CBA's filing requirement. Sharon Gilbert,

a member of Camden's board of selectmen at the time Camden approved

and signed the CBA in question, was one of the individuals who

reviewed and signed the contract. John French joined Camden's

board of selectmen in 1996 and was still on the board at the time

of his trial testimony. As a selectman, he reviewed the CBA before

the board approved it and was part of the contract's negotiations.

Roberta Smith, Camden's town manager from 2002 to 2011, was

involved in the administration of the 2007 CBA, meaning she

"reviewed the [CBA] each time it came up for renewal or at any

time day to day when any issue arose that [she] had to refer to

the contract."

All three witnesses testified the CBA gave Clukey the

right to be recalled to the position from which he was laid off,

i.e., a union dispatcher position, if this position became

available. Former town manager Smith testified Clukey's recall

right did not extend to the nonunion parking enforcement officer

and administrative assistant positions because these positions

were covered by internal personnel policies. All three interpreted

the filing requirement as requiring Clukey to file his name and

address with Camden to indicate his interest in being recalled if

for the parking enforcement officer and administrative assistant
positions and the salaries advertised for each.

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a dispatcher position became available. Smith also testified that

Clukey and the two other dispatchers laid off at the same time as

Clukey were not specifically told they needed to file their contact

information with Camden in order to indicate their interest in

being recalled and secure their right to recall. But one of the

other dispatchers did in fact file his name and address with Camden

so he could be considered for recall, leading Smith to "presume

. . . they understood the terms of the contract."3

At the end of the trial, the jury chose "yes" on the

first question on the special verdict form, which asked whether it

was more likely than not that the filing requirement "required the

plaintiff to file his mailing address and telephone number with

the town manager before he was entitled to be notified of a

possible recall, even if the town already had that information in

its files." As a result, the jury did not reach the other questions

on the verdict form and the district court entered judgment for

Camden.4 Clukey filed a multi-faceted post-trial motion, renewing

his request for judgment as a matter of law under Federal Rule of

3 Camden also presented testimony from a medical and
vocational case manager who provided expert testimony on labor
market surveys in 2007. Like Clukey's expert, his testimony was
relevant only to damages, which were not calculated by the jury.
4 Question two asked whether the right to recall extended to
the parking attendant and administrative assistant positions,
question three asked whether Clukey would have taken one of those
positions if offered, and question four asked for a damages
calculation.

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Civil Procedure 505, requesting a new trial under Rule 59, and

requesting relief from the judgment under Rule 60(b)(6). The

district court denied the motion in its entirety. Undeterred,

Clukey filed another appeal and we find ourselves recalled once

more to the weeds of Clukey's grievance against Camden.

II. DISCUSSION

Clukey's brief is by no means a model of organizational

clarity, but we have distilled his many arguments into three broad

categories. First, Clukey argues that the trial judge erred by

instructing the jury that each party had the burden of proving its

respective interpretation of the filing requirement because Camden

should have borne the sole burden to prove the filing requirement

contained a condition precedent. Next, Clukey argues Camden's

witnesses' interpretations of the filing requirement were

inadmissible extrinsic evidence because these testimonies were

self-serving and reflected their interpretations of the CBA

language at the time of trial and not Camden's interpretation of

the language when the CBA was finalized and executed in 2007.

Third, Clukey argues the trial judge erred by admitting evidence

about whether the scope of the recall right extended specifically

5 Both parties moved for judgment as a matter of law at the
close of evidence; the trial judge summarily denied both motions.

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to the nonunion parking enforcement officer and administrative

assistant positions which became available after Clukey's layoff.6

Burden of proof

The trial judge instructed the jury that "[e]ach party

[bore] the burden of proof with respect to his or her

interpretation" of the filing requirement. Clukey challenges this

instruction as incorrect as a matter of law.

At the charge conference held in the morning of the third

and last day of trial, the parties discussed the proposed burden

of proof instruction, but neither lodged an objection to the

allocation of a concurrent burden of proof for the interpretation

of the filing requirement.7 Instead, the parties discussed the

6 Clukey also lists the denial of his post-trial motion as an
issue on appeal, but we deem this issue waived for failure to
provide any argument about why the denial of the motion was in
error. See Echevarría v. AstraZeneca Pharmaceutical LP, 856 F.3d
119, 139-40 (1st Cir. 2017) ("[I]ssues adverted to in a perfunctory
manner, unaccompanied by some effort at developed argumentation,
are deemed waived.") (alteration in original) (quoting United
States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990)).
7 As we mentioned earlier, the trial judge actually first
articulated this concurrent burden of proof in his written decision
addressing Clukey's motion in limine to exclude Camden's
witnesses' testimony about their interpretations. At that time,
he wrote:
[Clukey] ignores the fact that, under his definition of
extrinsic evidence on this issue [reflecting the intent
of the parties to the CBA at the time it was negotiated,
from the individuals involved in the negotiations], he
bears a burden at least equal to that of the town to
present evidence of the intent of the union negotiators
with respect to this language at the time the CBA was
adopted. He does not indicate that he has any such

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instruction only when Camden asked the trial judge what would

happen if the jury determined neither party had met its burden of

proving its interpretation; i.e., if they got hung up on that

point. Clukey engaged in the theoretical discussion that followed

about whether the trial would end with a mistrial if the jury did

not find for one interpretation over the other--a discussion

captured over several transcript pages--but he did not raise any

objection to the proposed instruction.

Back in the courtroom, when the trial judge instructed

the jurors, he told them Clukey bore the burden of proving his

case by a preponderance of the evidence, explained what this meant,

and then said:

[A]s to the contract at issue in this case, the parties
each contend that certain portions of Article 19 of the
[CBA]--that's Joint Exhibit 1 that will be with you in
the jury room--between the Town and the Camden Police
Benevolent Association that was in effect in 2007 should
be interpreted in a different way. Each party bears the

testimony to present. He cites no authority for the
proposition that, should the town fail to present the
necessary extrinsic evidence to support its
interpretation, he need not present any extrinsic
evidence in order for his interpretation to prevail. In
the absence of evidence that the town was the sole
drafter of the CBA (making it something other than a
collectively bargained agreement), the proponent of a
particular interpretation of an ambiguous term of that
contract bears the burden of proof with respect to that
interpretation. (Emphasis added).

So it cannot be said Clukey did not have a heads up on the
district court's thinking by the time of the charge
conference.

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 burden of proof with respect to his or her interpretation
of those terms. (Emphasis added).

At the end of all of the instructions, the trial judge held a

conference at sidebar so the parties could note their objections

to the instructions for the record. Clukey lodged three

objections; none, however, challenged the allocation of the burden

of proof.

Before us, Clukey asserts that the trial judge

misallocated the burden of proof because alleging the existence of

a condition precedent is an affirmative defense and Camden should

have therefore borne the sole burden to prove its contention that

the filing requirement created a condition precedent. We review

his argument for plain error because he did not object to the

instruction at trial as required by Fed. R. Civ. P. 51. "[P]lain

error is one hard test to meet, particularly in civil litigation."

Rodríguez-Miranda v. Benin, 829 F.3d 29, 42 (1st Cir. 2016)

(quoting Bielunas v. F/V Misty Dawn, Inc., 621 F.3d 72, 78 (1st

Cir. 2010)). To establish the trial judge committed plain error

by instructing the jurors that the parties bore a concurrent burden

of proof on their respective interpretation of the filing

requirement, Clukey has to show that (1) a legal error in the

instruction (2) was an obvious error which (3) affected Clukey's

substantial rights and (4) "threaten[ed] the fairness, integrity

or public reputation of the proceedings." United States v. Rivera-

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Ruperto, 852 F.3d 1, 10 (1st Cir. 2017) (citing United States v.

Delgado-Marrero, 744 F.3d 167, 184 (1st Cir. 2014)). "'[P]lain

error' is 'an indisputable error by the judge, given controlling

precedent.'" United States v. Ponzo, 853 F.3d 558, 582 (1st Cir.

2017) (quoting United States v. Morosco, 822 F.3d 1, 21 (1st Cir.

2016)). Whether or not Clukey could demonstrate any error in the

trial judge's burden allocation instruction, he is nonetheless

unable to show that any error was clear or obvious. In fact,

Clukey has provided zilch legal support to bolster his argument

and in our probe of Maine law on this issue, we have found none.

That being said, one of the most basic principles of

civil litigation is that "the burden of proof rests upon the party

who asserts the affirmative of an issue." Federal Trial Handbook

Civil § 23:4 (4th ed.) (citing 29 Am. Jur. 2d Evidence § 156).

And it is important to remember that the trial was Clukey's

opportunity to prove his one and only claim: Camden had violated

his due process rights when it failed to provide him with notice

and a hearing before deciding not to recall him to either the

parking enforcement officer or administrative assistant positions

that became available in the year immediately following his layoff.

"To establish a due process violation, [a litigant] must 'show

first, a deprivation of a protected property interest, and second,

a denial of due process.'" Núñez Colón v. Toledo-Dávila, 648 F.3d

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15, 22–23 (1st Cir. 2011) (quoting Pérez-Acevedo v. Rivero-Cubano,

520 F.3d 26, 30 (1st Cir. 2008)).

Clukey bore the ultimate burden at trial to prove his

§ 1983 claim against Camden. Rogan v. City of Boston, 267 F.3d

24, 27 (1st Cir. 2001). Indeed, the basic legal principles

governing a § 1983 claim place the sole burden on the plaintiff:

In a suit brought under the provision of the Civil Rights
Act, authorizing a civil action for the deprivation of
rights, the plaintiff has the burden of proof and must
establish all elements which are essential to maintain
the cause of action. The plaintiff must prove the
alleged deprivation of rights, that the deprivation has
resulted from the breach of a duty owed by the defendant,
that the deprivation is of a right secured by the
Constitution and laws of the United States, and that the
defendant was acting under color of state law.

14A C.J.S. Civil Rights § 501 (2018). As we said in Clukey I,

"[u]nder Maine law, a constitutionally protected property interest

can be created in a public employment contract." Clukey I, 717

F.3d at 57-58 (citing Krennerich v. Inhabitants of Town of Bristol,

943 F. Supp. 1345, 1352 (D. Me. 1996)).8 But before the jury could

get to whether Camden had deprived Clukey of a protected property

interest, our holding in Clukey II meant Clukey first had to prove

he had triggered the right to recall.

Whether the filing requirement language was intended to

be a condition precedent or not to his recall right was a central

8 The parties agree that Maine law applies to the substantive
issues presented in this case. Clukey II, 797 F.3d at 101.

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--indeed, as we just said, threshold--issue at trial. We were

clear in Clukey II that each party had presented a plausible

interpretation of the filing requirement, rendering this contract

provision ambiguous as a matter of law. 797 F.3d at 103-04. A

trier of fact was therefore responsible for deciding which

interpretation was correct as a matter of fact when the parties

proceeded to trial on Clukey's entire § 1983 claim. Id. at 104.

Nowhere in Clukey II did we characterize or frame the

issue as an affirmative defense to Clukey's cause of action. As

a result, the burden of proving that the filing requirement was

not a condition precedent (and therefore that the right to recall

was triggered) likely rested with Clukey based on general

principles of burden allocation. To that end, Clukey could have

presented extrinsic evidence to support his position. Id. ("[T]he

factfinder may consider extrinsic evidence 'casting light upon the

intention of the parties with respect to the meaning of the unclear

language.'") (quoting Hilltop Cmty. Sports Ctr., Inc. v. Hoffman,

755 A.2d 1058, 1063 (Me. 2000)). But he did not.9 Instead, Clukey,

as was his druthers, relied entirely on the language of the CBA

when he argued during his closing that the jury need look no

9
We understand that the lack of extrinsic evidence presented
by Clukey was not for lack of effort in locating such evidence.
But even if Clukey could not find relevant extrinsic evidence to
present to the jury to prove his interpretation, it was still his
burden to meet.

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further than this language to determine that the filing requirement

did not require him to provide his contact details to the town

manager to trigger his entitlement to recall.10 To the extent the

district court may have erred in instructing the jury that both

parties bore the burden of proving their interpretations of the

filing requirement, if anything that instruction redounded to

Clukey's benefit. But given that Clukey has not demonstrated the

error was either clear or obvious, we see no plain error here.

Admissibility of testimony interpreting the filing requirement

In his brief, Clukey leans heavily on his arguments

against Camden's witnesses' interpretations of the filing

requirement as inadmissible extrinsic evidence of the town's

intent to create a condition precedent. He also asserts that

without their testimony, Camden could not have met its burden of

proving the filing requirement contained a condition precedent.

We review denials of motions in limine and objections to rulings

on the admissibility of evidence for abuse of discretion. United

States v. Brown, 669 F.3d 10, 21 (1st Cir. 2012) (evidentiary

10Indeed, he argued repeatedly in his closing that the jury
need look no further than the plain language of the provision to
discern the meaning of the filing requirement. For example:
What evidence is there for [Clukey's] interpretation of
the contract? The contract. It's English. . . . Read
it. If you read the plain English, you'll see that what
the Town is doing is being hyper-analytical, hyper-
constructive of plain words and stacking inferences on
inferences on inferences to try and create a situation
that is tenable to their position.

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rulings); Hatch v. Trail King Indus., Inc., 656 F.3d 59, 64 (1st

Cir. 2011) (motions in limine). "Under the 'abuse of discretion'

standard, this court will not substitute its judgment for that of

the district court unless left with a 'definite and firm conviction

that the court below committed a clear error of judgment.'"

Paolino v. JF Realty, LLC, 830 F.3d 8, 13 (1st Cir. 2016) (quoting

Schubert v. Nissan Motor Corp. in U.S.A., 148 F.3d 25, 30 (1st

Cir. 1998)), cert. denied, 137 S. Ct. 2093 (2017). "Even if an

abuse of discretion occurs, a new trial is not required unless the

error in admitting evidence 'had a substantial and injurious effect

or influence upon the jury's verdict.'" Ira Green, Inc. v.

Military Sales & Serv. Co., 775 F.3d 12, 18 (1st Cir. 2014)

(quoting Gomez v. Rivera Rodríguez, 344 F.3d 103, 118 (1st Cir.

2003) and citing Fed. R. Civ. P. 61).11

Even if we assume arguendo that the trial judge abused

his discretion when he allowed Camden's witnesses' interpretations

11 A quick aside about the standard of review. While Camden
does not question whether Clukey's appeal from the denial of his
motion in limine on this issue was properly preserved, Clukey is
clearly concerned about it. He claims that he renewed his motion
in limine at the start of trial, but the transcript does not back
this up. Clukey filed a "Motion to Correct Record on Appeal,"
asking the trial judge to modify the record if he remembered
Clukey's renewal of his motion in limine. The trial judge denied
the motion. None of this matters though, because prior to trial,
the judge made a definite ruling denying Clukey's motion in limine.
Clukey was therefore not required to renew his motion or his
objections to the testimony at the outset of trial. See United
States v. Brown, 669 F.3d 10, 22 n.18 (1st Cir. 2012); Rodríguez
v. Señor Frog's de la Isla, Inc., 642 F.3d 28, 35 (1st Cir. 2011);

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of the purpose of the filing requirement (though we doubt Clukey's

arguments against the admissibility of these testimonies are

winning ones), he cannot prevail because he doesn't argue the

jury's deliberations were tainted by hearing the supposed

inadmissible testimony. See Tersigni v. Wyeth, 817 F.3d 364, 369

(1st Cir. 2016) ("We may affirm in spite of an erroneous

evidentiary ruling if the error was harmless, meaning that 'it is

highly probable that the error did not affect the outcome of the

case.'") (quoting McDonough v. City of Quincy, 452 F.3d 8, 19–20

(1st Cir. 2006)). As a result, Clukey has waived on appeal any

argument that he was prejudiced. Such a waiver is fatal on

harmless error review.12

III. CONCLUSION

As we indicated in Clukey II and again reiterated here,

Clukey's case "necessarily c[a]me to an end" when the jury

Fed. R. Evid. 103(b) ("Once the court rules definitively on the
record--either before or at trial--a party need not renew an
objection or offer of proof to preserve a claim of error for
appeal."). Even so, he repeatedly objected during Camden's
witnesses' testimonies when they testified to their
interpretations of the filing requirement. All of this is to say
that we agree with Clukey that his objections on this issue are
preserved and we review for abuse of discretion.
12
To quickly address Clukey's last argument--that the
district court erred by admitting evidence about whether the scope
of the recall right was limited to union positions or whether it
extended specifically to the parking enforcement officer and
administrative assistant positions that became available in the
year after Clukey's layoff--we note that the jury did not reach
the question on the verdict form about whether Clukey's right
extended to these positions because it stopped its deliberations,

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determined that "the CBA condition[ed] an employee's recall right

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

address and telephone number," 797 F.3d at 101, and there was no

dispute that Clukey had not contacted the town manager with his

contact details after his layoff, id. at 99. "[I]f he failed to

meet such a condition precedent, he would never have acquired a

right to recall." Id. at 101 ("An elementary rule of contract law

is that the nonoccurrence of a condition discharges the parties

from their duties under the contract.") (quoting Irving v. Town of

Clinton, 711 A.2d 141, 142 (Me. 1998)). Without a right to recall,

there was no deprivation of a protected property interest and no

violation of his due process rights.

The judgment in favor of Camden is, therefore, affirmed.

Each party will bear its own costs.

as instructed on the special verdict form, after determining that
the purpose of the filing requirement was to notify Camden of one's
interest in being recalled. If there was any error in admitting
the testimony about the scope of the recall right, it is harmless.
See Tersigni v. Wyeth, 817 F.3d 364, 370 (1st Cir. 2016).

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