West v. Hoover, et al

Filing

OPINION issued by Rogeriee Thompson, Appellate Judge; Bruce M. Selya, Appellate Judge and David J. Barron, Appellate Judge. Unpublished. [16-1172]

Case: 16-1172

Document: 00117125245

Page: 1

Date Filed: 03/03/2017

Entry ID: 6073827

Not for Publication in West's Federal Reporter

United States Court of Appeals
For the First Circuit
No. 16-1172
WARREN WEST,
Plaintiff, Appellant,
v.
THOMAS HOOVER, in his capacity as Town Manager for the Town of
Coventry; GARY P. COTE, in his capacity as a Town Council member
for the Town of Coventry; KERRY L. MCGEE, in her capacity as a
Town Council member for the Town of Coventry; CARL L. MATTSON,
in his capacity as a Town Council member for the Town of
Coventry; PATRICK ROGERS; JOSEPH LARISA; ROBERT THIBEAULT, in
his capacity as Finance Director for the Town of Coventry,
Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. William E. Smith, U.S. District Judge]

Before
Thompson, Selya, and Barron,
Circuit Judges.

Timothy A. Williamson and Williamson Law on brief for
appellant.
Nicholas Gorham, Dianne L. Izzo, and Gorham & Gorham, Inc. on
brief for appellees.

March 3, 2017

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BARRON, Circuit Judge.
from

the

District

Court's

Date Filed: 03/03/2017

Entry ID: 6073827

Plaintiff Warren West appeals

grant

of

summary

judgment

to

the

defendants, certain officials of a Rhode Island town in their
official capacities and individual defendants associated with the
town.

West contends that the termination of his employment with

the town violated his right to procedural due process under the
Fourteenth Amendment of the United States Constitution. We affirm.
I.
We recount the following undisputed facts.

West served

as the finance director of the Town of Coventry, Rhode Island (the
"Town") from 2005 until his termination in 2011.

In 2010, he was

suspended from that position because of allegations that, as the
District Court summarized, he failed to ensure that the Town comply
with Rhode Island's "maintenance of effort" law by "provid[ing] at
least the same amount of local funds to [its] school system[] from
year to year."
The

Town

provided

West

with

participate in a pre-termination hearing.

the

opportunity

to

Before that hearing,

held on August 20, 2010, West received a copy of a report that had
been prepared by a private auditor, Ernest Almonte, who was charged
with investigating the allegations against West.

During the

hearing, West -- with the assistance of counsel -- was given the
opportunity to rebut the report's findings and conclusions.

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Later

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that day, West received notice that his employment had been
terminated.
West also received an opportunity to participate in a
five-day post-termination hearing before the Town's three-member
Personnel Board.

Two different attorneys -- Town Solicitors

Patrick Rogers and Frederick Tobin -- served as hearing officers.
The Board's responsibility was to advise the Town Manager, Thomas
Hoover, as to whether West had been wrongfully terminated.
retained ultimate authority over the decision.

Hoover

During this post-

termination hearing, West had the opportunity to cross-examine the
Town's two witnesses -- Almonte and Hoover -- and to call two
witnesses

of

his

own.

West

was

not

permitted

to

subpoena

witnesses, but he was able to enter documents into evidence.
The Board upheld West's termination.

West then filed

suit in Rhode Island Superior Court. He brought a number of claims
under both state and federal law, including one under 42 U.S.C.
§ 1983, in which he contended that the Town and certain of its
officials

had

violated

his

Fourteenth

Amendment

right

to

procedural due process. The defendants removed the case to federal
district court, which ultimately granted summary judgment to the
defendants.

This timely appeal followed.
II.

"Summary judgment is appropriate when the record shows
that 'there is no genuine dispute as to any material fact and the

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movant is entitled to judgment as a matter of law.'"

Entry ID: 6073827

Farmers Ins.

Exch. v. RNK, Inc., 632 F.3d 777, 782 (1st Cir. 2011) (quoting
Fed. R. Civ. P. 56(a)). "A fact is material if it has the potential
of determining the outcome of the litigation."

Id. (quoting

Rodríguez-Rivera v. Federico Trilla Reg'l Hosp., 532 F.3d 28, 30
(1st Cir. 2008)).

Our review of the District Court's grant of

summary judgment is de novo, drawing all inferences in favor of
West as the nonmoving party.

Id.
A.

West first argues that the District Court erred in
concluding that his seven-count complaint, brought pursuant to 42
U.S.C. § 1983, "reduce[d] . . . to one general claim -- that the
Town violated [his] Fourteenth Amendment due process rights when
it terminated his employment." West, however, provides no argument
in support of the contention that the District Court was wrong to
hold that he "waived" all other claims alleged in his complaint.
Because West has "adverted to [that contention] in a perfunctory
manner, unaccompanied by some effort at developed argumentation,"
we apply the familiar rule articulated in United States v. Zannino,
895 F.2d 1, 17 (1st Cir. 1990), and "deem[]" that contention
"waived."
B.
West next argues that the District Court erred in holding
that, as a matter of law, the process he received both before and

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after

Document: 00117125245

his

termination

as

constitutionally adequate.

Page: 5

finance

Date Filed: 03/03/2017

director

for

the

Entry ID: 6073827

Town

was

As West concedes, the touchstone for

allegations concerning procedural violations of the Fourteenth
Amendment's Due Process Clause is not whether he was wrongfully
terminated.

Rather, we look first to whether the employee was

"deprived of [his] property interest without . . . 'some kind of
hearing' and 'some pretermination opportunity to respond.'"

Senra

v. Town of Smithfield, 715 F.3d 34, 38-39 (1st Cir. 2013) (quoting
Wojcik v. Mass. State Lottery Comm'n, 300 F.3d 92, 102 (1st Cir.
2002)).

We look next to whether that initial "very limited

hearing" was "followed by a more comprehensive post-termination
hearing."

Gilbert v. Homar, 520 U.S. 924, 929 (1997).

We have

explained that a hearing -- whether pre- or post-termination -"'need not be elaborate' as long as an employee receives (1) 'oral
or written notice of the charges against him,' (2) 'an explanation
of the employer's evidence,' and (3) 'an opportunity to present
his side of the story.'"

Chmielinski v. Massachusetts, 513 F.3d

309, 316 (1st Cir. 2008) (quoting Cleveland Bd. of Educ. v.
Loudermill, 470 U.S. 532, 545-46 (1985)); Senra, 715 F.3d at 39
(holding that this "observation holds true for post-termination
hearings, which may be limited in scope").
Moreover, in cases in which the employee is granted both
a pre- and a post-termination hearing, we have explained that those
"proceedings are not evaluated for constitutional adequacy in

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isolation from each other."

Date Filed: 03/03/2017

Senra, 715 F.3d at 39.

Entry ID: 6073827

Rather, "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."

Id.

West concedes that, before his termination, he received
notice

"that

he

ha[d]

been

suspended

with

pay

pending

an

investigation into . . . the maintenance of effort issue" more
than six weeks before his pre-termination hearing.

That is more

than twice the two-and-a-half-week advance notice that we held
constitutional in Cepero-Rivera v. Fagundo, 414 F.3d 124, 134 (1st
Cir. 2005), and close to the eleven-and-a-half-week advance notice
that we held constitutional in Torres-Rosado v. Rotger-Sabat, 335
F.3d 1, 10 (1st Cir. 2003).
In addition, as the District Court noted, there is no
question that, a week before the pre-termination hearing, West
received a "detailed account of why [the Town] was considering
terminating his employment," and that the Town "forwarded West a
copy of the Report that formed the primary basis for its decision."
And, as West admits, he had the opportunity at that hearing to
"provide[]

the

Defendants

with

a

copy

opposition . . . during this meeting."

of

his

line

by

line

Thus, as in Chmielinski,

the record clearly shows that West was "aware that the [pretermination]

hearing

concerned

discipline,

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as

he

had

been

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suspended,

and

he

Page: 7

appeared

at

Date Filed: 03/03/2017

the

hearing

presented evidence on his own behalf."

with

Entry ID: 6073827

counsel

and

513 F.3d at 316.

But West did not just have the opportunity to make his
case at a pre-termination proceeding.

He also received post-

termination process via a hearing that took place over five days.
During

that

post-termination

hearing,

as

the

District

Court

emphasized, and as West does not dispute, "West, through his
counsel, extensively cross-examined both of the Town's witnesses,"
including Almonte and Hoover.

In addition, the record clearly

shows that "West called two witnesses of his own, and submitted a
number of exhibits to the Board."

We thus do not see how the

District Court erred in concluding that the record shows that, as
a matter of law, West "received far more than the minimum elements
of procedural due process."

Torres-Rosado, 335 F.3d at 10.
C.

In response, West contends that both his pre- and posttermination proceedings were a sham. In this regard, he emphasizes
the following facts that he alleges to be in dispute: (1) his
termination letter was prepared "well in advance" of his pretermination hearing; (2) he was terminated on the same day the
pre-termination hearing was held; (3) he was not able to confront
adverse witnesses during his pre-termination hearing; (4) new,
politically

motivated

appointments

to

the

Personnel

Board

presiding over his post-termination hearing were made in the month

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prior to that hearing; (5) the hearing officer, Patrick Rogers,
who presided over the first two days of his post-termination
hearing, was also the Town Solicitor, and therefore had a role in
the Town's investigation of West's alleged misconduct as finance
director; (6) one of the members of the Personnel Board was
appointed in violation of the Town's Home Rule Charter, and
therefore should have been removed; and (7) Rogers, as hearing
officer, failed to execute subpoenas West contends should have
been issued.

But even assuming, favorably to West, that each of

these factual claims is true, none of them provides a basis for
overturning the District Court's grant of summary judgment to the
defendants.

Farmers Ins. Exch., 632 F.3d at 782.

As to the first two factual issues that West raises, our
case law is clear that even where a decision-maker makes the
termination
drafts

a

decision

before

corresponding

the

pre-termination

termination

letter,

hearing,

"[t]here

is

and
no

constitutional infirmity" as long as "the planned termination was
subject to revision."

O'Neill v. Baker, 210 F.3d 41, 49 (1st Cir.

2000). West, however, does not point to any evidence in the record
suggesting that the relevant decision-maker -- Town Manager Hoover
-- had decided in advance of the pre-termination hearing that
nothing he heard there would have changed his mind.
As to West's contention that he was not able to confront
adverse

witnesses

at

his

pre-termination

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hearing,

we

have

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emphasized that a "termination hearing is not a court of law, and
the same level of process is not required."
at 316.

Chmielinski, 513 F.3d

And here, West acknowledges, he was able to "provide[] a

line by line response" to the report summarizing the allegations
against him.

The rule articulated in Chmielinski, moreover,

applies all the more when an employee is "entitled to some process
after termination."

Id.

In that case, "the purpose of the

[pre-]termination hearing is solely to serve as 'an initial check
against mistaken decisions -- essentially, a determination of
whether there are reasonable grounds to believe that the charges
against the employee are true and support the proposed action.'"
Id. (quoting Loudermill, 470 U.S. at 545-46).
West next turns his attention to the new appointments
made in the month before his post-termination hearing to the Town's
Personnel Board.
with

political

He contends that these appointments were made
motivations

and

deprived

him

of

a

meaningful

opportunity at his post-termination hearing before that Board to
rebut the charges against him.
But West's evidence in this regard is merely that the
Board's

members

--

two

Republicans

and

one

politically

unaffiliated holdover member -- were "hand-picked" by Town Council
Vice President Laura Flanagan.

It is true that "a decisionmaker

could be so utterly biased as to deprive an employee of . . . [the]
error-correction ability" that is central to the procedural due

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process guarantee.

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Chmielinski, 513 F.3d at 318. But here the

District Court supportably concluded, on the basis of the summary
judgment record before it, that West had shown nothing either
suggesting that "Flanagan sought to create a politically oriented
personnel board" or "connect[ing] the political makeup of the
Council to his termination."

West identifies no evidence in the

record that shows that the District Court erred in this regard.
Fifth, West suggests that he did not receive a meaningful
post-termination hearing because the officer presiding over the
hearing, Patrick Rogers, was also employed as the Town Solicitor,
and in that capacity had advised Town officials about their
investigation into West.

But, as the District Court emphasized

and West does not dispute, Rogers was not a "decision-maker at
either of his hearings."

Rather, it was "Hoover and the Personnel

Board, not Rogers, [who] ultimately decided West's fate."

In any

event, the District Court rightly pointed out that West's due
process rights would not have been violated even if Hoover himself
--

the

official

responsible

for

terminating

West

--

had

participated in his post-termination hearing as a decision-maker.
See Chmielinski, 513 F.3d at 318.1

1

West separately contends that his procedural due process
rights were violated based on a "potential . . . conflict of
interest" between himself and Joseph Larisa, an attorney who was
hired as "special counsel" for the Town, and to whom West spoke
during the course of the Town's initial investigation of West's
conduct as finance director. West contends that he believed that
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Sixth, West contends that the Town's alleged violation
of its own Charter on its own deprived him of the constitutional
guarantee of procedural due process.

The mere fact, however, that

a state law may have been violated provides no basis for finding
a federal constitutional violation.

See Senra, 715 F.3d at 40

("[T]he

does

not

incorporate

enacted

by

state

federal

particular

Due

Process

procedural

governments."

Clause

structures

or

the

District

Court

was

clearly

correct

conclude that West was not entitled to subpoena witnesses.
to

no

local

(quoting Chmielinski, 513 F.3d at 316 n.5)).

Finally,

points

the

authority

suggesting

decision was incorrect on this point.

that

the

District

to

West

Court's

And, as the District Court

emphasized, West did have the opportunity to "confront[] each of
the witnesses the Town presented against him, call[] to his defense
individuals who would willingly testify for him, and present[]

Larisa was acting as his attorney when they spoke in that initial
investigation. But, West points out, Larisa represented the Town
at West's post-termination hearing. West, however, did not testify
at the post-termination hearing, and he does not contend that the
reason that he did not do so was because Larisa would have crossexamined
him
using
allegedly
privileged
or
confidential
information. In addition, West points to no evidence that suggests
that Larisa represented himself as West's attorney at any point
during his involvement in the proceedings leading up to West's
termination. Nor does West identify any other evidence showing
that Larisa's involvement in West's post-termination hearing
somehow tainted that hearing. Thus, while the District Court did
not discuss this issue, we do not see how these allegations suffice
to require us to vacate the District Court's grant of summary
judgment.

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documentary evidence to the Board in support of his case."
due no more.

Entry ID: 6073827

He was

See id. at 40 (holding that where an employee was

"represented by counsel and was able to participate and to present
evidence

to

a

neutral

arbitrator,"

the

employee's

"post-

termination arbitration proceeding . . . satisfied [his] rights to
procedural due process").
III.
The judgment of the District Court is affirmed.

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