Senra v. Town of Smithfield

United States Court of Appeals
For the First Circuit

No. 12-1600

PAUL F. SENRA,

Plaintiff, Appellant,

THE TOWN OF SMITHFIELD; DENNIS FINLAY, individually and in his
official capacity; PETER SCORPIO, individually and in his
official capacity; SUSAN PILKINGTON in her official capacity,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND

[Hon. Ronald R. Lagueux, U.S. District Judge]

Before

Lynch, Chief Judge,
Howard, Circuit Judge,
and Casper,* District Judge.

Keven A. McKenna for appellant.
Marc DeSisto, with whom Edmund L. Alves, Jr., Joseph Cavanagh
III, DeSisto Law and Blish & Cavanagh, LLC were on brief, for
appellee.

May 3, 2013

*
of the District of Massachusetts, sitting by designation.
CASPER, District Judge. Appellant Paul Senra ("Senra"),

a former probationary public employee of the Town of Smithfield,

Rhode Island ("Town"), alleges that he received insufficient

procedural due process in violation of the Fourteenth Amendment in

relation to the termination of his employment, and additionally

that the Town violated art. III, § 7 of the Rhode Island

Constitution, and the Rhode Island Whistleblowers' Protection Act,

R.I. Gen. Laws § 28-50-3, when it fired him. The district court

granted summary judgment on all counts against Senra. For the

reasons given below, after de novo review, we affirm.

I. Facts & Background

Appellant Senra was hired by the Town as a Deputy

Building Official on March 25, 2008. The Town hired Senra on a

probationary basis, and on the condition that Senra obtain his

Building Official certification ("certification") from the State of

Rhode Island within one year of being hired. To obtain the

certification, Senra had to pass two building code examinations.

Senra's status as a probationary employee initially

lasted six months. When that time had elapsed and Senra had not

obtained the required certification, the Town Manager extended

Senra's probation for three months. After that time elapsed, and

Senra still had not obtained the certification, the Town Manager

extended Senra's probation for another three months. By January

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2009, it was clear to Town administrators that Senra was unlikely

to obtain the certification within a year of his hiring date. On

January 12, 2009 the Town Manager, the Town Building Official and

the Town Human Resources Director met with Senra to address the

problem. At that meeting, Senra agreed to accept a timetable for

his passing the required examinations, and the Town Manager agreed

to give Senra until March 31, 2010 to obtain the certification.1

Senra's timetable required him to pass the first

examination by April 15, 2009 and to pass the second by August 15,

2009. Senra did not meet these requirements. By April 15, 2009,

he had not signed up to take the first examination. He took but

failed the first examination on April 25, 2009, and after that took

no more tests. Despite this, the Town extended Senra's

probationary status for two months in June 2009, and then again for

two months in September 2009.

One week before his probationary status was set to

expire, the Town Manager on November 10, 2009 met with Senra and

advised Senra that he was going to be terminated. The Town placed

Senra on administrative leave until November 16, 2009 to give him

time to consult with a union representative. On that date, Senra

and the union business agent appeared at a hearing before the Town

1
Despite the Town Manager's agreement to give Senra over a
year to complete the certification, the Town continued to extend
Senra's probationary status for two or three months at a time.

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Manager. Both Senra and the agent spoke at the meeting. At the

conclusion of the meeting, the Town Manager terminated Senra.

Senra challenged his termination by filing a grievance

through his union against the Town. An arbitrator heard this

grievance on January 27, 2012 and issued a decision on April 30,

2012 finding that the Town did not have just cause to terminate

Senra on November 16, 2009 only to the extent that it did not allow

him until March 31, 2010 to obtain the certification, as had been

previously agreed by the Town Manager and Senra. Accordingly, the

arbitrator reinstated Senra for that equivalent time. At the end

of his reinstatement, Senra had still not obtained the

certification and was again terminated.

After Senra requested arbitration but prior to the

arbitration hearing, Senra filed a complaint in the Rhode Island

Superior Court on January 26, 2011 against the Town, its Town

Manager, its Building Official, and its Human Resources Director

(collectively, "Defendants"). On February 17, 2011, the Defendants

removed the case to federal court. Senra, in his complaint and

again on appeal, alleged that he was improperly terminated because

(1) he received constitutionally inadequate procedural due process

with respect to his termination; (2) he was entitled to "hold [his]

position[] during good behavior" and so qualified, R.I. Const. art.

III, § 7; and that (3) he was protected from termination under the

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Rhode Island Whistleblowers' Protection Act, R.I. Gen. Laws § 28-

50-3.2 Specifically on this third point, Senra alleged that he was

fired not because of his failure to obtain the certification, but

because he had uncovered allegedly illegal behavior by the Town's

Building Official.

Approximately one year after the case was removed, and

after seven months of discovery, the Defendants moved for summary

judgment on all claims. Senra then moved for partial summary

judgment on his procedural due process and state constitutional

claims. After a hearing, a district judge, ruling from the bench,

granted the Defendants' motion for summary judgment on all counts

and denied Senra's motion. Senra now appeals these rulings and

further argues that the district court erred by exercising

supplemental jurisdiction over his state claims after dismissing

Senra's only federal claim.

II. Analysis

We review the district court's grant of summary judgment

de novo, Ayala–Sepúlveda v. Municipality of San Germán, 671 F.3d

24, 30 (1st Cir. 2012), drawing all reasonable inferences in the

2
Senra alleged other violations in his complaint that are not
properly presented on appeal. Issues unaddressed on appeal or
"adverted to in a perfunctory manner, unaccompanied by some effort
at developed argumentation, are deemed waived." United States v.
Williams, 630 F.3d 44, 50 (1st Cir. 2010) (quoting United States v.
Zannino, 895 F.2d 1, 17 (1st Cir. 1990)).

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nonmovant's favor, Lockridge v. Univ. of Me. Sys., 597 F.3d 464,

468 (1st Cir. 2010).

Senra makes two arguments as to why he has not received

constitutionally adequate procedural due process. First, Senra

argues that the post-termination arbitration was not a procedurally

adequate mechanism because the arbitrator could not address Senra's

constitutional and statutory claims. Second, Senra argues that he

was due a mandated hearing before the Town Counsel.

To maintain a procedural due process claim, a plaintiff

must allege "that [the plaintiff] was deprived of constitutionally

protected property because of defendants' actions, and that the

deprivation occurred without due process of law." Rumford Pharm.,

Inc. v. City of East Providence, 970 F.2d 996, 999 (1st Cir. 1992).

To assert such a claim "arising out of the termination of his

employment, a public employee must first demonstrate that he has a

reasonable expectation, arising out of a statute, policy, rule, or

contract, that he will continue to be employed." Wojcik v. Mass.

State Lottery Comm'n, 300 F.3d 92, 101 (1st Cir. 2002) (citing

Perkins v. Bd. of Dirs. of Sch. Admin. Dist. No. 13, 686 F.2d 49,

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51 (1st Cir. 1982)). We will assume that this showing has been

made for the purposes of resolving the due process claim.3

"The employee must also demonstrate that he was deprived

of that property interest without the minimum amount of process

that was due under the Constitution [including] 'some kind of

hearing' and 'some pretermination opportunity to respond.'" Id.

(quoting Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542

(1985)); see also Mard v. Town of Amherst, 350 F.3d 184, 193 (1st

Cir. 2003). Pre-termination and post-termination proceedings are

not evaluated for constitutional adequacy in isolation from each

other; a reviewing court studies the totality of the process

received in light of the factual record to determine if the

procedural due process was sufficient. See Loudermill, 470 U.S. at

547 n.12 (noting that "the existence of post-termination procedures

is relevant to the necessary scope of pretermination procedures");

Wojcik, 300 F.3d at 102 (considering both pre-termination and post-

termination procedures when evaluating whether plaintiff was

provided with "constitutionally adequate procedural safeguards");

Rumford Pharm., Inc., 970 F.2d at 999 (considering whether "Rhode

Island law . . . provide[s] constitutionally adequate

3
The parties do not address whether Senra had a protected
property interest in his employment when he was terminated. Cf.
Wojcik, 300 F.3d at 102 (noting that a claim of a protected
property interest is decided under state law). The district court
assumed for the purposes of its ruling that Senra was a permanent
employee of the Town when he was terminated.

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predeprivation and postdeprivation remedies"); see also Hadfield v.

McDonough, 407 F.3d 11, 21 (1st Cir. 2005) (finding that a post-

deprivation remedy was sufficient to address "any [pre-]deprivation

of process . . . caused by random and unauthorized conduct by the

due process defendants"); Cronin v. Town of Amesbury, 81 F.3d 257,

260 (1st Cir. 1996) (same).

Here, Senra challenges only the constitutional adequacy

of the post-termination hearing, arguing that a defect there would

render inadequate the entire procedural due process he received.

We find Senra's attack on his post-termination arbitration to be

without merit. But even so, if Senra had raised a valid defect in

his post-termination hearing, we would look to the entire pre- and

post-termination proceedings to determine if the procedural due

process he received was sufficient.

As an initial matter, we have previously indicated that

an arbitration hearing can be an appropriate mechanism to conduct

a post-termination hearing. Wojcik, 300 F.3d at 102. However,

Senra argues here that the defect in his post-termination

arbitration was that the arbitrator could not resolve Senra's

allegations that he enjoyed protections afforded by the Rhode

Island Constitution and the Whistleblower statute.4

4
It is not clear whether Senra presented these claims to the
arbitrator and he asserts in part that the arbitrator was not
jurisdictionally capable of resolving said claims. Regardless, our

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A termination proceeding does not need to address all

possible claims that an employee may bring against his former

employer to satisfy the Constitution's procedural due process

requirements. Writing about pre-termination proceedings, we have

observed that "a termination hearing is not a court of law."

Chmielinski v. Massachusetts, 513 F.3d 309, 316 (1st. Cir. 2008).

That observation holds true for post-termination hearings, which

may be limited in scope to address the asserted basis for an

employee's termination. Here, the Town asserted an objective basis

for terminating Senra, which is that Senra repeatedly failed to

obtain the required certification. Procedural due process is

satisfied where Senra was given "a meaningful opportunity to

respond" to the Town's explanation for his termination. Id.

Even if the arbitrator could not or did not consider

whether the Town had violated the Rhode Island Constitution or the

Whistleblower statute in firing Senra, a post-termination

arbitration only need address the asserted basis for the employee's

termination and, if the opportunity had not already been provided

prior to termination, give the employee the ability to provide his

side of the story to a decision maker. Cf. id. (noting the

requirements that a pre-termination hearing provide notice, an

explanation of the evidence and an opportunity to respond). Here,

analysis is not affected where the arbitrator clearly considered
the Town's reason for dismissing Senra to be the failure to obtain
the certification.

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Senra enjoyed a full arbitration hearing where he was represented

by counsel and was permitted to put on evidence before a neutral

arbiter. Senra could further seek a remedy for the alleged

statutory and constitutional violations in court, and in fact here

he did so by filing the present suit even before the arbitration

began. Cf. González-Droz v. González-Colón, 660 F.3d 1, 14 (1st

Cir. 2011) (observing that "[a]lthough the plaintiff implies that

he would have challenged the constitutionality of the Regulation at

the hearing [before the Board of Medical Examiners], that is a

question for adjudication by the courts").

Senra further argues that his procedural due process

rights would have been satisfied had a post-termination hearing

been held before the Town Counsel, allegedly pursuant to the Town

charter and bylaws.5 However, the Town Counsel surely had no more

power than the arbitrator to address Senra's statutory and

constitutional claims. At oral argument, Senra's counsel suggested

that the difference in decision makers itself was the source of the

procedural violation, but on this record we see no reason why this

would be so. Senra also did not explain how the remedies that

could have been granted by the Town Counsel or by the arbitrator

were different. Here in fact, we observe that after the district

5
The Town charter and bylaws are not in the record, but
Defendants do not dispute Senra's characterization of their
requirements.

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court had granted summary judgment in favor of the Defendants, the

arbitrator issued his decision reinstating Senra into his job for

over four months and that the arbitrator considered but declined to

award back pay or benefits.

But more importantly, "the federal Due Process Clause

does not incorporate the particular procedural structures enacted

by state or local governments." Chmielinski, 513 F.3d at 316 n.5

(quoting Torres-Rosado v. Rotger-Sabat, 335 F.3d 1, 10 (1st Cir.

2003)). Claims "involving state procedural guarantees that are

above and beyond constitutional due process requirements, are not

properly before us." O'Neill v. Baker, 210 F.3d 41, 49 n.9 (1st

Cir. 2000). Such claims, "should be pursued, if at all, under

[state] law." Torres-Rosado, 335 F.3d at 10; cf. Loudermill, 470

U.S. at 541 (observing that "once it is determined that the Due

Process Clause applies, the question remains what process is due.

The answer to that question is not to be found in [a state]

statute").

Here we review in toto whether the procedural due process

actually received by Senra was adequate using a constitutional

benchmark. For the reasons given above, we conclude that the

procedural due process given to Senra, which included a pre-

deprivation hearing with notice and union representation at the

hearing, where both the representative and Senra spoke, and the

post-termination arbitration proceeding, where Senra was

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represented by counsel and was able to participate and to present

evidence to a neutral arbiter, satisfied Senra's rights to

procedural due process.

Senra also contends that the district court erred by

exercising its discretion to reach and resolve the state law claims

after ruling against Senra on the sole federal claim. Senra's

argument is that the district court's actions violated principles

of comity and judicial economy. As described below, we find that

the district court acted within its discretion. Because we so

hold, we then proceed to review de novo the district court's

disposition of Senra's state law claims.

A federal court may exercise supplemental jurisdiction

over state law claims that "are so related to claims in the action

within [the court's] original jurisdiction that they form part of

the same case or controversy." 28 U.S.C. §§ 1367(a). "[T]he

termination of the foundational federal claim does not divest the

district court of power to exercise supplemental jurisdiction, but,

rather, sets the stage for an exercise of the court's informed

discretion." Roche v. John Hancock Mut. Life Ins. Co., 81 F.3d

249, 256-57 (1st Cir. 1996); see also Delgado v. Pawtucket Police

Dept., 668 F.3d 42, 48 (1st Cir. 2012) (finding that "[t]he

district court's decision here to retain jurisdiction over the

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plaintiffs' state law claims after dismissing the federal claims

fell squarely within the realm of its discretion"). In deciding

whether to exercise supplemental jurisdiction in such a

circumstance, a judge "must take into account concerns of comity,

judicial economy, convenience, fairness, and the like." Roche, 81

F.3d at 257; see Redondo Constr. Corp. v. Izquierdo, 662 F.3d 42,

49 (1st Cir. 2011) (noting that "the proper inquiry is 'pragmatic

and case-specific'" (quoting Roche, 81 F.3d at 257)).

Here, the parties had been actively litigating the matter

for more than a year, and a seven-month window for discovery had

closed well before the district court considered the state law

claims. The court considered the issues of comity and judicial

economy, and found that the questions of state law were not so

novel as to warrant the added time and expense inherent in a remand

to state court. Moreover, we note that Senra himself in his

partial motion for summary judgment sought to have the district

court resolve his state constitutional claim. For all of these

reasons, we cannot say that the district court abused its

discretion by retaining jurisdiction over the state law claims.

Senra's first state law claim is that his employment was

protected under the provision of R.I. Const. art. III, § 7, which

states in full:

Ethical conduct. -- The people of the state of Rhode Island
believe that public officials and employees must adhere to

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the highest standards of ethical conduct, respect the
public trust and the rights of all persons, be open,
accountable and responsive, avoid the appearance of
impropriety and not use their position for private gain or
advantage. Such persons shall hold their positions during
good behavior.

The Supreme Court of Rhode Island has declared that "article 3,

section 7, announces 'a laudable principle and not a workable rule

of law,' [and has held] that it is not a self-executing

constitutional provision." A.F. Lusi Constr., Inc. v. R.I.

Convention Ctr. Auth., 934 A.2d 791, 798 (R.I. 2007) (quoting

Smiler v. Napolitano, 911 A.2d 1035, 1039 n.5 (R.I. 2006)). Under

Rhode Island law, "[a] constitutional provision may be said to be

self-executing if it supplies a sufficient rule by means of which

the right given may be enjoyed and protected, or the duty imposed

may be enforced; and it is not self-executing when it merely

indicates principles, without laying down rules by means of which

those principles may be given the force of law." Id. (quoting

Bandoni v. State, 715 A.2d 580, 587 (R.I. 1998)). In the A.F. Lusi

case, the Supreme Court of Rhode Island, after quoting the entire

section above, held that "although article 3, section 7,

articulates ethical principles that public officials and employees

should adhere to, those provisions are aspirational in nature, and

the constitutional provision does not set forth rules that give

those principles the force of law." Id.

Senra argues that because the A.F. Lusi court did not

explicitly address the last sentence stating that "[s]uch persons

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shall hold their positions during good behavior," the A.F. Lusi

case's holding is properly limited to address only the first

portion of that constitutional section. But the A.F. Lusi opinion

recites the entire constitutional provision in its holding and does

not make the distinction that Senra asks us to make. The intended

scope of the A.F. Lusi case's holding is reinforced by a closer

examination of the constitutional and statutory provisions on which

the A.F. Lusi opinion relies.

As the A.F. Lusi court observed, "although article 3,

section 7, does not itself direct the Legislature to take further

action to give this provision the force of law, article 15, section

4, of the Rhode Island Constitution requires the Legislature to

adopt implementing legislation for [a]rticle [3], [s]ections 7 and

8. . . . [and] [i]n accordance with this directive, the Legislature

enacted a Code of Ethics, codified in G.L. 1956 chapter 14 of title

36." A.F. Lusi Constr., Inc., 934 A.2d at 798 & n.2. That chapter

in turn established an ethics commission, R.I. Gen. Laws § 36-14-1,

and ethics code that applies to, among others, "[e]mployees of

state and local government," R.I. Gen. Laws §§ 36-14-4, 36-14-2(4).

Given that a separate constitutional provision explicitly directs

the Legislature to "adopt implementing legislation for [a]rticle

[3], [s]ections 7," and that such legislation exists in detailed

form, we cannot say that the district court erred in granting

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summary judgment in favor of Defendants by holding that Senra did

not have a private right of action under this provision.

Senra's second state law claim is that he was protected

from termination under the Rhode Island Whistleblowers' Protection

Act, R.I. Gen. Laws § 28-50-3. That statute provides that "[a]n

employer shall not discharge . . . an employee . . . [b]ecause the

employee . . . reports or is about to report to a public body . . .

a violation [of a law or regulation] which the employee knows or

reasonably believes has occurred or is about to occur . . . ."

R.I. Gen. Laws § 28-50-3. A plaintiff bringing a claim under this

statute may not base the claim on "pure speculation." Malone v.

Lockheed Martin Corp., 610 F.3d 16, 23 (1st Cir. 2010).

The district court noted that the evidence in this case

was "very lean." We agree, where Senra relies on no evidence to

support his Whistleblower claim. Senra did not provide an affidavit

and points only to allegations contained in an unverified second

amended complaint to support his claim. "Summary judgment motions

are decided on the record as it stands, not on the pleadings . . .

. Consequently, a plaintiff who aspires to ward off . . . summary

judgment must produce enough proof to enable her case to get to a

jury." Rogan v. City of Boston, 267 F.3d 24, 27 (1st Cir. 2001).

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The district court properly granted summary judgment in favor of the

Defendants.6

III. Conclusion

For the foregoing reasons, we AFFIRM the district court's

decision granting Defendants' motion for summary judgment and

denying Senra's motion for partial summary judgment.

-Concurring Opinion Follows-

6
Because we decide on this ground, we do not need to consider
the district court's alternate holding under the doctrine of
"election of remedies." See State, Dept. of Envtl. Mgmt. v. State,
Labor Relations Bd., 799 A.2d 274, 277 (R.I. 2002) (noting that
"[t]he doctrine of election of remedies is one that is grounded in
equity and is designed to mitigate unfairness to both parties by
preventing double redress for a single wrong"). As an initial
matter, Senra does not challenge this finding on appeal and thus
any argument that the district court erred as to this issue is
waived. DeCaro v. Hasbro, Inc., 580 F.3d 55, 64 (1st Cir. 2009)
(observing the "common ground that contentions not advanced in an
appellant's opening brief are deemed waived"). It is not clear
which matters were asserted or what remedies were requested before
the arbitrator, beyond his consideration of the Town's stated
reasons for dismissing Senra, and we need not reach whether Senra
in his arbitration "sought essentially the same remedy as the
complaint later filed in Superior Court." Cipolla v. R.I. Coll.,
Bd. of Governors for Higher Educ., 742 A.2d 277, 281 (R.I. 1999).

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HOWARD, Circuit Judge, concurring in part and concurring

in the judgment. I concur with the bulk of this excellent opinion

and join in the judgment of the majority without hesitation. I

write separately, however, because I am uncertain about the

majority's analysis of the issue of Rhode Island law discussed in

Part B.2.

The Rhode Island Supreme Court unquestionably used broad

language in interpreting the ethical conduct provision of the

state's constitution. See A.F. Lusi Constr., Inc. v. R.I.

Convention Ctr. Auth., 934 A.2d 791, 798 (R.I. 2007) (announcing

that "article 3, section 7 . . . is not a self-executing

constitutional provision"). As the majority implicitly

acknowledges, however, A.F. Lusi concerned only an alleged violation

of the first clause of the ethical conduct provision, which

provides, inter alia, that "public officials and employees must .

. . avoid the appearance of impropriety." R.I. Const. art. III,

§ 7, cl. 1. See A.F. Lusi Constr., Inc., 934 A.2d at 794. A.F.

Lusi did not involve the second clause of the ethical conduct

provision -- the clause at issue here, which provides that "[s]uch

persons [i.e., public officials and employees] shall hold their

positions during good behavior." R.I. Const. art. III, § 7, cl. 2.

Accordingly, whether the Rhode Island Supreme Court intended its

pronouncement to extend to the independent "good behavior" clause

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is at best unclear. In any event, even if that court did so intend,

its treatment of the clause is dicta.

Regardless of whether the "good behavior" clause is self-

executing, however, Senra failed to satisfy the requirements of his

job by not obtaining a mandatory building official certification,

as the majority explains. Even when the town accommodated him and

extended the deadline by which he was to obtain the certification,

he failed to take the necessary examinations at the agreed-upon

times; indeed, he registered for the first examination late and

failed to register for the second examination entirely. Senra has

presented no substantive argument as to how he remained of good

behavior despite these repeated failings; he simply asserts, without

support, that "[f]ailure to take a private exam . . . was not

evidence of 'bad behavior.'" Accordingly, even if the "good

behavior" clause is self-executing, Senra has not shown that the

Town violated article III, section 7, clause 2.

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