CLUKEY et al v. TOWN OF CAMDEN

Filing 98

MEMORANDUM DECISION ON MOTIONS IN LIMINE 88 Motion in Limine; 89 Motion in Limine; 90 Motion in Limine By MAGISTRATE JUDGE JOHN H. RICH III. (nrg)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE

ALAN CLUKEY,
Plaintiff1
v.
TOWN OF CAMDEN,
Defendant

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No. 2:11-cv-372-JHR

MEMORANDUM DECISION ON MOTIONS IN LIMINE

The parties have submitted motions in limine for my consideration before the trial of this
matter begins on July 25, 2016. The defendant has filed one motion that addresses 13 different
issues. The plaintiff has submitted two motions.
I. The Defendant’s Motion
A. Medical Records
The defendant “seeks to exclude any and all medical records.” Defendant’s Motion at 14. The plaintiff responds that he “conditionally concedes the Town’s bid to exclude medical
records][,]” so long as the town does not refer to or offer into evidence any of his medical records.
Plaintiff’s Opposition to Defendant’s Motions in Limine (“Plaintiff’s Opposition”) (ECF No. 91)
at 5. Plaintiff’s concern notwithstanding, I see no suggestion by the defendant in its motion that it
will “attempt to cherry pick records and information helpful to its burden of proof while excluding
medical records that aid the plaintiff.” Id. The motion to exclude the plaintiff’s medical records

The defendant’s motion includes Dera Clukey as a named plaintiff in its caption. Defendant’s Motions in Limine
(“Defendant’s Motion”) (ECF No. 88) at 1. Dera Clukey was dismissed from this action on June 4, 2013, when Count
IV of the complaint, the only count asserted by Dera Clukey, Complaint (ECF No. 1) ¶¶ 39-40, was dismissed by
stipulation of the parties. ECF No. 20.
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is GRANTED without objection. Should either party, nonetheless, attempt to use any portion of
the medical records at trial, I will deal at that time with any objections that may be raised.
B. Dera Clukey
The defendant seeks to bar any testimony from Dera Clukey, the plaintiff’s wife, regarding
the effects on her of the events of which the plaintiff complains. The plaintiff does not respond to
this request, which accordingly is GRANTED without objection.
The defendant also states, without elaboration, that “[a]ny observations by [Dera Clukey]
of Plaintiff must establish [that] they are related to not obtaining the jobs, not the layoff itself.”
Defendant’s Motion at 4. The plaintiff objects to this, and asserts that “Dera Clukey’s testimony
should not be limited by parsing the difference between the effects of ‘not obtaining the jobs, not
the layoff itself.” Plaintiff’s Opposition at 5. He refers to an earlier portion of his opposition,
which I take to be that, even though he concedes that his layoff “was contractually permissible[,]”
[t]he Town was obligated to mitigate or eliminate the adverse impact of Clukey’s unemployment.”
Id. at 2.
To the contrary, the collective bargaining agreement (CBA) that is the basis of the
plaintiff’s claims cannot reasonably be read to require the defendant to “mitigate or eliminate” any
adverse effects of the plaintiff’s layoff, which was the cause of his unemployment. The CBA
specifically contemplates layoffs. Agreement Between Town of Camden and Camden Police
Benevolent Association (ECF No. 1-2) Article 19 § 3. The only obligation imposed on the town
after an employee covered by the CBA is laid off is to abide by that employee’s recall rights for
12 months from the date of the layoff. Id. The layoff itself was not a violation of the CBA, nor of
the plaintiff’s property interest in his dispatcher job. See, e.g., Dunn v. County of Erie, No. 92CV-0511E(M), 1993 WL 499694, at *3 (W.D.N.Y. Nov. 24, 1993). The alleged failure of the town

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to observe the plaintiff’s recall right, in which both this court and the First Circuit2 have held that
he had a constitutionally-protected property interest, is the injury in this case, and the only cause
of damages about which the plaintiff may offer evidence.
C. Other Employees
The defendant next seeks to exclude “any testimony relating to any other employee and
whether or not that employee was recalled[.]” Defendant’s Motion at 4. The fact that all of the
town’s police dispatchers, of which the defendant was one, were laid off at the same time appears
to me to be quire relevant, as is the possible fact that neither of the others was recalled or that one
or more of them was recalled. Beyond that, the extent of the defendant’s request is unclear. The
plaintiff says that one of the other dispatchers did provide the town with his address in writing,
which the plaintiff admittedly did not do. Plaintiff’s Opposition at 6. Such testimony also appears
to be relevant.
If the defendant means that other dispatchers, or other unidentified town employees, should
not be allowed to testify about their own attempts to find work after being laid off and the effect
on them of not being recalled, the motion appears to have merit. In any event, because the intended
scope of the motion is unclear, I will reserve ruling until the employees are presented, if they are
in fact presented, to testify at trial. When and if such a witness is to be called by the plaintiff, the

See, e.g., Clukey v. Town of Camden, 717 F.3d 52, 53, 56, 58, 60 (1st Cir. 2013) (“Clukey I”) (“In reviewing the
defendant’s motion, the magistrate judge determined that Clukey did have a property interest in his right to be
recalled[.]” (emphasis in original)); (“Although we have never addressed whether the right to be recalled following a
lay-off can be a constitutionally protected property interest, we have addressed closely analogous situations[.]”);
(“Thus, we must examine the language of the CBA itself to see whether it so narrows the Town’s discretion to rehire
Clukey that Clukey had a legitimate claim of entitlement to be recalled to police department positions for which he
was qualified . . . . We agree with the district court that the plain language of [Article 19 section 3] compels a
conclusion that Clukey had a property interest in his right to be recalled.”); (“Clukey’s uncontested allegation that he
received no notice either before or after the Town deprived him of a protected property interest in [recall to]
employment is in itself sufficient to state a procedural due process claim under § 1983.”).
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plaintiff’s attorney shall approach sidebar before initiating questioning of the witness so that this
issue may be resolved before any testimony is heard by the jury.
D. Settlement Discussions
Without discussion, the defendant asserts that it “seeks to exclude any settlement
documents/discussions including any request by Plaintiff as part of a settlement to rehire the
employee.” Defendant’s Motion at 4. The plaintiff responds that he intends to offer a letter written
in 2009 from his attorney to the town asking that he be hired as a parking enforcement officer and
offering in exchange to forbear from suing the town. Plaintiff’s Opposition at 7. He contends that
this was not an attempt to settle a claim because “[a]t the time, there was nothing to settle.” Id.
Federal Rule of Evidence 408(a) prohibits admission of evidence “either to prove or
disprove the validity . . . of a disputed claim or to impeach . . . furnishing, promising, or offering—
or accepting, promising to accept, or offering to accept—a valuable consideration in compromising
or attempting to compromise the claim[.]” The language of the letter as described by the plaintiff
fits easily within this description. He says that the letter will be proffered as “evidence of his
attempt to find comparative work,” Plaintiff’s Opposition at 7, but that is not all that the letter
shows. The fact that the letter came from his attorney and that it offered not to sue in exchange
for being rehired makes the letter precisely what the Rule prohibits. The plaintiff can testify that
in 2009 he asked the town in writing to hire him as a parking enforcement officer and that the town
did not do so. That establishes the existence of “an attempt to find comparative work” without the
objectionable trappings found in the letter itself. Should the town attempt to impeach the plaintiff’s
testimony, the plaintiff may renew his motion to admit the letter.

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E. Alan Clukey
The defendant contends that the plaintiff “should not be allowed to discuss how the
litigation of his recall rights affected him emotionally.” Defendant’s Motion at 4. The plaintiff
responds that the emotional distress that he has suffered due to the litigation was foreseeable when
the town failed to honor his right to recall and that he can, therefore, “explain the emotional burden
[that] the litigation has imposed upon him.” Plaintiff’s Opposition at 7.
The defendant correctly states the law applicable to this claim by the plaintiff. E.g., SotoLebrón v. Federal Express Corp., 538 F.3d 45, 60 n.15 (1st Cir. 2008) (citing Knussman v.
Maryland, 272 F.3d 625, 641 (4th Cir. 2001), for the proposition that “[g]enerally speaking,
litigation-induced emotional distress is never a compensable element of damages.”). The plaintiff
may not recover for the emotional distress caused by this litigation and, as a result, may not testify
about it.
F. Michael Weed
The defendant seeks to bar any testimony from Michael Weed. Defendants Motion at 5.
The plaintiff says that Weed “will not be on the plaintiff’s final witness list.” Plaintiff’s Opposition
at 7. I take that to mean that the plaintiff will not call Wood to testify. The defendant’s motion is
therefore moot.
G. Paul Spear
The defendant seeks to exclude any testimony from Paul Spear, a former dispatcher who
was given the parking enforcement position to which the plaintiff contends that he was entitled
“without filing an application for employment in order to allow the transfer of the fire dispatcher
. . . to a police dispatcher without filing a job application.” Defendant’s Motion at 5. This event
apparently occurred six years before the plaintiff was laid off. Id. The fire department is not

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covered by the CBA at issue here. Id. The defendant asserts that testimony about this event is
irrelevant. Id.
The plaintiff responds that Spear’s anticipated testimony “would establish recent
fabrication by the Town of its unilateral interpretation of the CBA provisions[,]” and that the
plaintiff’s knowledge of these events “was a contributing factor to Clukey’s perception of not
be[ing] valued as an employee and to his diminished self-esteem.” Plaintiff’s Opposition at 8.
It is only the town’s failure to recall the plaintiff after the layoff that may be considered by
the jury as a cause of the plaintiff’s emotional distress; events that occurred six years previously
are not relevant to this claim.
It is not clear whether the CBA under which the plaintiff was employed was also in effect
at the time of Spear’s transfer; if it was not, the anticipated testimony is not relevant to the
plaintiff’s claim for that reason and too attenuated in time as well. It may be relevant that the town
has in the past allowed transfers between departments, but that testimony could be provided by a
current town official without the need to call Spear. There is the potential for the specific details
of that transfer to confuse the issue before the jury and outweigh their possible relevance. If such
testimony were allowed, it would be up to counsel for the town to make the point that what might
be allowed under the contracts is not the same as what the current CBA requires the town to do.
In any event, given the lack of necessary information in the parties’ submissions, counsel
are directed to approach sidebar if and when the plaintiff wishes to call Spear to testify so that I
may rule on the admissibility of his proposed testimony before Spear is presented to the jury.
H. Diane Moody
The defendant seeks to exclude any testimony from Diane Moody, who it anticipates will
testify about a statement made by the town’s chief of police before the layoffs occurred, her
observations of the plaintiff’s depression, her own unsuccessful work search, and the denial of her
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application for unemployment compensation benefits. Defendant’s Motion at 5-6. The plaintiff
responds that her testimony is admissible for the same reasons that he contended Spear’s testimony
is admissible, and for several more specific reasons. Plaintiff’s Opposition at 8-11.
First, while the defendant argues that the police chief is not the defendant here, rendering
his statements hearsay, Defendant’s Motion at 6, the plaintiff asserts that the police chief was “the
Town’s point man charged with the layoff of the dispatchers” and that the statement he made to
Moody is “a prior inconsistent statement[] by the Town of its interpretation that the CBA excluded
Clukey from recall as the administrative assistant[,]” and that it was a declaration against the
town’s interest by its authorized representative. Plaintiff’s Opposition at 8-9. Neither side has
informed the court of the actual statement by the police chief that is involved here. I will need to
hear that statement before I can determine whether it is necessarily inconsistent with the town’s
current position and/or was a declaration against interest. At trial, the plaintiff should be prepared
to demonstrate that the police chief’s statement was effectively that of the town before offering
this testimony. The plaintiff’s attorney is directed to approach sidebar when he intends to call
Moody to the stand so that her testimony may be taken initially outside the presence of the jury,
so that I can rule effectively on this particular issue.
The plaintiff acknowledges that the statement at issue “occurred before the layoff” but
contends that it is “factually linked to the layoff” because it was “an announcement of the Town’s
intention not to do anything to rehire the dispatchers.” Id. at 10. Again, I will need to hear
Moody’s testimony before I can rule on this justification. However, I can rule at this juncture that
the fact that the police chief’s “statement was in response to more than three impassioned pleas
from townspeople for the Town to do something to re-employ the dispatchers,” id. at 11, is not
admissible evidence in this case.

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Next, the plaintiff asserts that “Moody was laid off, which qualified her for unemployment
compensation benefits.” Id. at 9. I assume that Moody was, like the plaintiff, one of the three
police dispatchers who were laid off at the same time, a necessary fact unmentioned by either
party. Even so, the fact that “[t]he Town misrepresented to the state board that Moody was
terminated for cause[,]” is not admissible to “impeach[] the Town’s interpretation of the CBA” by
showing that “it was the Town’s intention to burden the dispatchers with the economic burden of
their layoff at any cost to the dispatchers[.]” Id. The issue presented to the jury is whether the
town’s interpretation of a specific provision of the CBA was correct or not; whether that
interpretation was based on improper motives is irrelevant. The fact that Moody disputes the
outcome of her application for unemployment compensation benefits is irrelevant and unduly
prejudicial to the defendant.

She will not be allowed to testify about her application for

unemployment compensation benefits.
The plaintiff next asserts that Moody should be allowed to testify about her own work
search because that testimony “is a product of the level of expert testimony that the Town will give
to the jury concerning available jobs.” Id. He attacks the anticipated testimony of the defendant’s
expert, the admissibility of which he does not challenge, and asserts that Moody “compiled
significant rejections” from “more extensive and lengthy work search[] than did Clukey.” Id. He
says that her testimony “will offer empirical evidence that the advertisements [on which he expects
the defendant’s expert to rely] were not representative of the labor market that existed in this area
[at the relevant time].” Id. at 10. All that Moody’s testimony could offer on this point would be
anecdotal, rather than empirical, evidence. Testimony proffered to show that the advertisements
upon which the defendant expert may rely “were not representative of the labor market” would
have to come from an expert witness. The defendant may certainly challenge the basis for the

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expert witness’s opinion on cross-examination, and Moody may testify that she searched
assiduously for work and settled for a particular job after a particular length of time, but any further
details of that search are not admissible.
Next, the plaintiff contends that Moody’s testimony about “her first hand observations of
Clukey from the March meeting with Chief Roberts through Clukey’s second hospitalization” as
a lay opinion “for the purpose of understanding Clukey as a vulnerable human being who was
beaten down by the Town’s constitutional abuse.” Id. at 10. Moody may certainly testify about
her observations of Clukey’s apparent mental state at relevant times, once the basis for those
observations has been established, but “her empathy from having the same experience with the
layoff as did Clukey[,]” id., is not a proper basis for those observations. The fact that Clukey “also
experienced depression from the way the Town treated her after the layoffs[,]” id., and the details
of her experience of that depression, even if assumed arguendo to be relevant, would be
outweighed by the prejudice that could be caused, and the need to prolong trial by extensive crossexamination concerning the possible differences between her experiences and responses and those
of the plaintiff.
I. Lawrence Dearborn
The defendant seeks to exclude all testimony from Lawrence Dearborn, who filed an
application for the administrative assistant position after the layoff and was told that there was a
more qualified applicant. Defendant’s Motion at 6. It expects that the plaintiff will also ask
Dearborn to testify about his own job search. Id. In response, the plaintiff directs the court to
“[s]ee discussions in paragraphs 4 and 9, supra, except that Dearborn will not testify about
Clukey’s mental state.” Plaintiff’s Opposition at 11. I assume that this reference is to the
plaintiff’s discussion of the anticipated testimony of the “other employees” and Moody.

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My ruling on Dearborn’s anticipated testimony about his own job search is the same as the
one I have made about Moody’s anticipated testimony on that topic. To the extent that he will
testify as would Moody about other topics, my ruling here is that same as that made with respect
to Moody. I do not see how my discussion of the possible testimony of “other employees,” at
pages 3-4 above, has any further bearing on Dearborn’s proposed testimony.
J. Randy Gagne
Randy Gagne is the current chief of police in the defendant town. Defendant’s Motion at
6. The defendant anticipates that he will be called by the plaintiff to testify that he overheard the
previous chief say to the dispatchers that he did not think that they had the qualifications to perform
the job of administrative assistant. Id. at 7. It contends that this evidence is irrelevant, and points
out that Gagne “did not even know which of the dispatchers was being addressed during this
statement.” Id.
The plaintiff responds that Gagne’s deposition testimony about this statement by his
predecessor is admissible for the reasons “discussed in detail, above.” Plaintiff’s Opposition at
11. I assume that this is a reference to Moody’s anticipated testimony about a similar—or perhaps
the same—statement by the prior police chief. For the reasons stated in my analysis of the motion
to exclude Moody’s testimony, I will need to know the plaintiff’s basis for asserting that the prior
police chief’s statement may be considered to be that of the town and precisely what the statement
was, before I can rule on its admissibility. Because this testimony will apparently be presented by
deposition, the parties must submit to me as soon as possible the transcript of the deposition with
the relevant portions highlighted, so that I can rule on this motion before trial starts. I will not
delay the trial once it starts in order to perform this analysis.

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I note that the defendant has not asked the court to exclude any other portion of Gagne’s
deposition testimony. It may not, therefore, request exclusion of any other portion of that
testimony in the submission to be made with respect to Gagne.
K. Prior Appeals
The defendant moves to exclude any reference to the two appeals filed and resolved in this
case. Defendant’s Motion at 7-8. The plaintiff responds that “the decision in the prior appeals are
the best explanation for the jury of either how it evolved that they are limited to construing two
words of an employment contract, how an employment contract can be the basis of a due process
civil rights claim and that the basis for Clukey’s damages is not the Town’s failure to have given
him a job but the failure to have given him notice of a[] job available for recall.” Plaintiff’s
Opposition at 12.
I will instruct the jury on the rules of law applicable to this case in its present posture, in
accordance with the rulings of the First Circuit. No jury is ever asked to interpret the rulings of an
appellate court, any more than it may be tasked with interpreting the pre-trial rulings of a trial
judge that may limit the evidence that will be presented to that jury. The jury is not entitled to,
and will not be given, a recitation of the reasons why it is given a particularly limited task.
L. Lost Profits
The defendant submits a citation concerning the type of evidence necessary to demonstrate
lost profits. Defendant’s Motion at 8. The plaintiff responds that he is “not claiming lost profits,”
Plaintiff’s Opposition at 13, rendering the defendant’s motion moot.
M. Front Wages and Neville Lee
The defendant moves to exclude any demand for “front wages.” Defendant’s Motion at 89. It asserts that the plaintiff has presented no evidence of permanent disability, which it contends
is necessary for an award of front pay. Id. The plaintiff agrees with the defendant, id. at 9, that
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the issue of front pay is reserved to the court. Plaintiff’s Opposition at 13. Accordingly, any
evidence going to that issue may not be presented before the jury.
This does not mean that Dr. Neville Lee, apparently an expert witness to be called by the
plaintiff, may not testify that “the likelihood of Clukey being hired during his work[ ]life
expectancy at other work comparable to the [parking enforcement officer] or Administrative
Assistant is minimal to none[,]” id. at 14, or, more accurately, between the date when he should
have been given notice of the availability of those jobs and the date of the verdict. Front pay is an
award to compensate a plaintiff “for lost compensation during the period between judgment and
reinstatement.” Johnson v. Spencer Press of Me., Inc., 364 F.3d 368, 379 (1st Cir. 2004). Thus,
if the jury finds that the plaintiff was entitled to notice of the two jobs at issue, the damages that it
could award to him would include the difference between the income that he did earn, or could
have earned, from the date when notice should have been provided to the date of the verdict.
Whether placement in either job after the verdict is required or even possible, and what front pay
should be awarded as a result of that determination, are questions for the court. If the plaintiff
wishes to present evidence from Dr. Lee regarding those questions, he must do so only after the
jury has returned its verdict, and only if the verdict does not moot those questions.
II. The Plaintiff’s First Motion
The plaintiff’s first motion in limine seeks to exclude evidence from any of the town’s
witnesses as to the intent of the language at issue in the CBA because none of them was involved
in the negotiation of that contract in 2007 or, alternatively, has any present memory of the intent
of the language at that time. Plaintiff’s Motion in Limine to Exclude Testimony by Witnesses of
Their Present Interpretation of the CBA (“Plaintiff’s First Motion”) (ECF No. 89). The First
Circuit found in Clukey v. Town of Camden, 797 F.3d 97 (1st Cir. 2015) (“Clukey II”), that the

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following words in Article 19, Section 3 of the CBA were ambiguous and required factfinding at
a trial:
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.
Id. at 101, 102-04 (emphasis omitted).
The plaintiff contends that only evidence of the intent of the parties to the CBA at the time
it was negotiated, from the individuals involved in the negotiations, is admissible to address this
ambiguity. Plaintiff’s First Motion at [2]-[3]. Because the town has listed no witnesses who can
personally attest to the town’s intent at that time, he asserts, he must prevail. Id. at [4].
There are at least two problems with the plaintiff’s position. First, he ignores the fact that,
under his definition of extrinsic evidence on this issue, 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 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. See, e.g., Quesenberry v. Volvo Group N.A., Inc., Civil Action No. 1:09cv00022,
2010 WL 2836201, at *4-*5 (W.D. Va. July 20, 2010) (suggesting that plaintiff employees had
proved that ambiguous provision of CBA should be interpreted as they claimed).3

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If neither party presents admissible extrinsic evidence of the meaning of the CBA language deemed ambiguous by
the First Circuit, this court will decide what the ambiguous language means. See, e.g., Estate of Hardy, 609 A.2d
1162, 1164 (Me. 1992); accord, Malmsteen v. Universal Music Group, Inc., 940 F.Supp.2d 123, 131 (S.D. N.Y. 2013).

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The second problem with the plaintiff’s argument is that he defines extrinsic evidence too
narrowly as a matter of law. I have been unable to locate any decision of a Maine court, or of this
court when construing Maine law, that limits extrinsic evidence in this context to testimony of
individuals with direct, contemporaneous knowledge of the intent of the parties when entering into
a contract. There is case law that suggests that, in addition to the terms of the entire contract, a
factfinder construing the ambiguous term of a contract may consider the history of the negotiations
between the parties to the contract, the circumstances surrounding the negotiation of the contract
at issue, and the history of dealing between the parties on the matter at issue, Guilford Transp.
Indus. v. PUC, 2000 ME 31, ¶ 21, 746 A.2d 910, 916.
If an ambiguity requires consideration of extrinsic evidence, a court must
look to all surrounding facts and circumstances in order to ascertain the parties’
intended meaning of the contract. This includes any relevant course of
performance, course of dealing, and usage of trade, as well as a party’s own
admissions, the party’s actions or statements from which knowledge or reason to
know may be inferred, and the usages and meanings of third persons with which
the party probably was familiar.
JA Apparel Corp. v. Abboud, 682 F.Supp.2d 294, 303 (S.D.N.Y. 2010) (citations and internal
punctuation omitted).
“The term ‘extrinsic evidence’ is imprecise but includes proof of negotiations between the
parties, their post-contract conduct, and general trade practice.” National Tax Inst., Inc. v.
Topnotch at Stowe Resort & Spa, 388 F.3d 15, 19-20 (1st Cir. 2004). It also includes the parties’
prior course of dealing. Den Norske Bank AS v. First Nat’l Bank of Boston, 75 F.3d 49, 53 (1st
Cir. 1996). Clearly, extrinsic evidence in the context applicable in this case is not limited to direct
personal knowledge of individuals involved in negotiating the contract containing the ambiguous
term at issue. For example, Judge Woodcock of this court suggested that the deletion of a portion
of the contract clause at issue from a subsequent contract could be extrinsic evidence of intent, as

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well as the context of the agreement at issue, the nature of the industry in which the parties were
involved, and the circumstances of the parties at the time the agreement was signed. Officemax
Inc. v. Sousa, 773 F.Supp.2d 190, 206 (D. Me. 2011).
The plaintiff suggests that any testimony other than direct personal testimony of individuals
involved in negotiating the CBA will be self-serving statements about the “unilateral secret intent”
of the town. Plaintiff’s First Motion at [2]. The testimony of an individual who is responsible for
administration of a negotiated contract but who was not involved in its negotiation is not per se
self-serving or evidence of a secret intent behind the contract term. Evidence of an undisclosed
and therefore secret intent would have to be evidence of such intent at the time of execution of the
agreement, which it appears will not be provided in this case. A jury will determine whether
otherwise admissible testimony is sufficiently self-serving that it should not be credited, in whole
or in part. That is a matter for closing argument.
The plaintiff’s first motion in limine is denied. This does not mean, however, that
testimony concerning the intent of the contract language found ambiguous by the First Circuit
from individuals with an attenuated relationship with the CBA will automatically be admitted.
III. The Plaintiff’s Second Motion
The plaintiff moves to exclude testimony concerning his possible right to recall to any jobs
other than those “that became available within the police department within the twelve months
following his layoff, a parking enforcement officer (PEO) and an administrative assistant (AA).”
Plaintiff’s Motion in Limine to Exclude Testimony Concerning Whether the CBA Limited
Clukey’s Recall Rights Solely to a Dispatch Position (“Plaintiff’s Second Motion”) (ECF No. 90)
at [1]. He asserts that the First Circuit found in Clukey I that the language upon which the town
relies to support its position that the CBA only required that he be recalled when a dispatcher
position became available was ambiguous “was never pleaded as an affirmative defense of a
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condition precedent.” Id. at [2]. Because the First Circuit held that the language of the CBA on
this point was ambiguous as a matter of law, he contends, he is entitled to a hearing under
Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532 (1985).
Allowing the town to argue at trial that the CBA limited his recall rights to a dispatcher
position, the plaintiff asserts, would be “yet another unconstitutional violation of Clukey’s due
process rights.” Plaintiff’s Second Motion at [4]. He argues that the court will be “facilitating a
protracted violation of Clukey’s due process rights by holding a hearing in which the passage of
time has eliminated his ability to meet his burden of factual proof.” Id. This argument is
unpersuasive.
The question of whether the CBA limits the plaintiff’s recall rights to a position as a police
dispatcher, if it is derived from an ambiguous term of the CBA, is no more factually dependent
than the question of whether the language of the CBA required the plaintiff to file his address with
the town manager in order to be considered for recall. The fact that considerable time has passed
since the CBA was negotiated, making it difficult to find first-person testimony as to the meaning
of the applicable phrase, does not implicate the plaintiff’s constitutional rights any more than it
compels a finding in his favor with respect to the question of whether an employee had to provide
written notice of his contact information as a condition precedent to the exercise of whatever recall
rights the CBA might provide.
Moreover, the First Circuit in Clukey I expressly stated that it did not “decide the meaning
of” the “treated separately” language in the CBA, but rather found it to be ambiguous and so
unavailable as a basis for dismissal of the plaintiff’s complaint. 717 F.3d at 58-59.
The town’s objection to this motion ignores the plaintiff’s statement that his recall claim at
trial will be limited to the PEO and AA positions within the police department. Defendant’s

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Objection to Plaintiff’s Motion in Limine (“Defendant’s Second Opposition”) (ECF No. 92). It
begins its opposition to the plaintiff’s motion with an assertion that he takes the position “that any
job that opened up in the Town was available to Plaintiff and required notice.” Id. at 1. It is now
clear that the plaintiff does not take that position.
Even if the First Circuit had definitively found that the “treated separately” language in the
CBA was ambiguous for all purposes, it did not resolve that ambiguity, leaving it for resolution
by the jury. That means that the defendant may argue that “[t]he CBA only applied to union police
officers and dispatch,” making the PEO and AA positions independent of its terms. Id. at 2. This
is not an argument that the “treated separately” language created another condition precedent to
recall.
I agree with the defendant, id., that its position means that the plaintiff’s recall rights were
not necessarily limited to the dispatch position, but might also include police officer positions, so
the plaintiff’s motion is granted to that extent, but the defendant will not be precluded from arguing
that the PEO and AA positions were not positions to which the plaintiff could be recalled under
the terms of the CBA. Nothing in Clukey I nor Loudermill requires a different ruling on the instant
motion.4
IV. Conclusion
The defendant’s motions in limine A, B, D, E, and K are GRANTED. The defendant’s
motions in limine F and L are MOOT. Ruling is reserved, with the exceptions granting portions
of the motions as noted, on the defendant’s motions in limine C, G, H, I, J, and M. The plaintiff’s
first motion in limine is DENIED; his second motion in limine is GRANTED IN PART.

4

Loudermill dealt with a dismissal from employment, a termination of employment. 470 U.S. at 535. There is no
sense in which the defendant’s failure to recall the plaintiff to employment constituted a termination of ongoing
employment.

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Dated this 19th day of July, 2016.

/s/ John H. Rich III
John H. Rich III
United States Magistrate Judge

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