Contract Creates Property Right In Recall From Layoff

Alan Clukey was a police dispatcher with the Town of Camden, Maine Police Department for 31 years until the Department was eliminated in 2007 and he was laid off. At the time of his layoff, Clukey was the most senior employee in his department.

The terms of Clukey’s employment with the Town were governed by a contract between the Town and the Fraternal Order of Police. One clause in the contract stated that “employees shall be recalled from layoff according to their seniority provided they are qualified to fill the position. The affected employee has recall rights for twelve (12) months from the date of such layoff.”

In the 12 months following Clukey’s termination, at least two positions opened with the police department for which Clukey was qualified – one position as an Administrative Assistant and one as a Parking Enforcement Officer. The Town did not recall him to either position. Indeed, the Town filled these positions with new hires without providing Clukey any notice that he was not being recalled or explaining how he could appeal this determination.

Clukey sued the Town, claiming that it had deprived him of his property interest in his right to be recalled in violation of the Constitution’s procedural due process guarantees. The federal First Circuit Court of Appeals recently held that Clukey’s collective bargaining agreement indeed did create a constitutionally protected property right to recall from layoff.

The Town argued that it was impossible for Clukey to have a property interest in his right to recall because “no property interest in continued employment can exist if one is not already employed.” The Court disagreed, finding that “the critical inquiry in a procedural due process case involving a right of employment is whether the plaintiff has a legitimate claim of entitlement grounded in state law, not whether one is already employed.

“That a tenured public employee has a protected property interest in continued employment is beyond question. Tenure is not the only employment benefit, however, that can be protected by the constitutional guarantees of due process. For example, we have held that where a public employer’s collective bargaining agreement uses mandatory language, the public employees covered by that agreement have a constitutionally protected property interest in injury leave benefits. Similarly, we have joined a majority of our sister circuits in concluding that public employees may have a protected property interest in their rank such that they may not be demoted without due process.

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

The Town next argued that Clukey had an adequate remedy under the collective bargaining agreement, and that he should have exhausted the grievance procedure before filing a lawsuit. The Court made short shrift of this argument, commenting that “it is true that where the grievance procedures contained in a collective bargaining agreement satisfy constitutional due process minimums, aggrieved employees have little room to claim that they were deprived of a property interest without due process of law. The mere fact that a collective bargaining agreement contains a hearing procedure, however, does not mean that constitutional due process minimums are satisfied. Rather, grievance procedures extinguish a plaintiff’s due process claim only if the procedures meet or exceed constitutional standards. Here, we have already determined that the Town’s procedures, as described in the complaint, are constitutionally inadequate insofar as they fail to provide any notice whatsoever to Clukey of recall positions. Thus, the Town cannot use the theoretical availability of grievance procedures to shield themselves from Clukey’s claims.”

The Court of Appeals concluded its opinion by returning the case to the lower court for a trial.

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