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Kando v. Rhode Island State Board of Elections

United States Court of Appeals, First Circuit

January 22, 2018

ROBERT KANDO, Plaintiff, Appellant,


          Richard A. Sinapi for appellant.

          Adam J. Sholes, Assistant Attorney General, with whom Kate Brody, Special Assistant Attorney General, was on brief, for appellees.

          Before Kayatta, Circuit Judge, Souter, Associate Justice, [*] and Selya, Circuit Judge.


         This case begins with a termination. Plaintiff-appellant Robert Kando, a quondam employee of the Rhode Island State Board of Elections (the Board), alleges in relevant part that his constitutional rights were violated by the manner in which his employment was brought to an abrupt end. Concluding that the plaintiff had not shown a deprivation of any constitutionally protected interest, the district court granted the Board's motion for judgment on the pleadings with respect to the plaintiff's claims under 42 U.S.C. § 1983. Although our reasoning differs somewhat from that of the district court, we affirm.

         I. BACKGROUND

         Since this case was decided on a motion for judgment on the pleadings, see Fed.R.Civ.P. 12(c), we assume the accuracy of the well-pleaded facts adumbrated in the complaint and "supplement those facts by reference to documents incorporated in the pleadings, " Jardín De Las Catalinas Ltd. P'ship v. Joyner, 766 F.3d 127, 130 (1st Cir. 2014). The plaintiff served as the Board's executive director from 2005 until his dismissal in August of 2016. He asserts that his job performance during the first eight years of his tenure was efficient, effective, and devoid of controversy. As time progressed, personality conflicts with new Board members led to animosity, acrimony, and criticism of the plaintiff's job performance. In the plaintiff's view, this dissatisfaction often stemmed from matters over which the plaintiff had little control.

         At some point prior to January 11, 2016, the Board tentatively decided to terminate the plaintiff's employment. At its January 11 meeting, though, the Board changed course and voted to treat its previous termination decision as "null and void." The Board proceeded to suspend the plaintiff without pay for fifteen days and directed him to enroll in the next three semesters of management courses at an educational facility of his choosing. The Board stated that it would review the plaintiff's role as the Board's executive director and his working relationship with its members at the end of the third semester of coursework. Apart from this statement, nothing in the minutes of the meeting indicates that the Board set a deadline for the plaintiff either to enroll in or to complete the required courses.

         Eight days later, the Board sent the plaintiff a letter over the signature of its acting chair. The January 19 letter purported to summarize what had transpired at the January 11 meeting and elaborated on the "management courses" requirement. The letter instructed the plaintiff to take two courses per semester (starting "this month"), to notify the Board of his chosen courses, and to keep the Board advised of his progress (by, for example, informing the Board of grades received). Among other things, the letter also stated that, after the plaintiff had completed the third semester of management courses, his employment status would be "subject to review by the Board."

         The complaint alleges that, by the time of the Board's next meeting (March 16, 2016), the plaintiff had enrolled in management courses at Johnson & Wales University (JWU). The plaintiff concedes, however, that he did not enroll in these courses prior to the end-of-January deadline limned in the January 19 letter (which he characterizes as arbitrary and unreasonable). Noting that he had failed to enroll by the deadline, the Board suspended him for six weeks without pay.

         On August 31, 2016, the Board held a special meeting. Without allowing the plaintiff to speak, the Board voted to terminate his employment. At that time, the plaintiff was still enrolled at JWU and had not yet completed the required three semesters of management courses.

         The plaintiff repaired to the federal district court and brought suit against the Board and its members. His complaint contained an array of claims under both federal and state law, including (as relevant here) claims for alleged deprivation of due process under 42 U.S.C. § 1983. After answering the complaint, the defendants moved for judgment on the pleadings. See Fed.R.Civ.P. 12(c). With respect to the section 1983 claims, the defendants argued that because the plaintiff was an at-will employee, the Board had every right to cashier him at the August 31 meeting. The district court agreed, finding that the plaintiff had failed to establish a cognizable property interest in his continued employment and that the absence of such a property interest foreclosed all of his section 1983 claims. See Kando v. R.I. Bd. of Elections, 254 F.Supp.3d 335, 340 & n.4 (D.R.I. 2017). Having granted judgment for the defendants on the plaintiff's federal claims, the court declined to exercise supplemental jurisdiction over the plaintiff's state-law claims and dismissed those claims without prejudice. See id at 341; see also 28 U.S.C. § 1367(c). After unsuccessfully moving for reconsideration, the plaintiff now appeals from the entry of judgment on his federal claims.[1]

         II. ANALYSIS

         We review the entry of judgment on the pleadings de novo. See Pérez-Acevedo v. Rivero-Cubano, 520 F.3d 26, 29 (1st Cir. 2008). In conducting this appraisal, we are not bound by the district court's reasoning but, rather, may affirm the entry of judgment on any ground made manifest by the record. See InterGen N.V. v. Grina, 344 F.3d 134, 141 (1st Cir. 2003).

         A motion for judgment on the pleadings bears a strong family resemblance to a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), and these two types of motions are treated in much the same way. See Aponte-Torres v. Univ. of P.R., 445 F.3d 50, 54 (1st Cir. 2006). Consequently, we take the well-pleaded facts and the reasonable inferences therefrom in the light most favorable to the nonmovant (here, the plaintiff). See R.G. Fin. Corp. v. Vergara-Nuñez, 446 F.3d 178, 182 (1st Cir. 2006). In addition, our review may include facts drawn from documents "fairly incorporated" in the pleadings and "facts susceptible to judicial notice." Id. Withal, any new facts contained in the answer, to which no responsive pleading by the plaintiff is required, are deemed denied. See id.

         When all is said and done, this standard requires us to "separate wheat from chaff; that is, [to] separate the complaint's factual allegations (which must be accepted as true) from its conclusory legal allegations (which need not be credited)." Morales-Cruz v. Univ. of P.R., 676 F.3d 220, 224 (1st Cir. 2012). Judgment on the pleadings should be allowed only if the properly considered facts ...

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