United States Court of Appeals 

For the First Circuit 

No. 17-1120 

ALAN CLUKEY, 

Plaintiff, Appellant, 

v. 

TOWN OF CAMDEN, 

Defendant, Appellee. 

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF MAINE 

[Hon. John H. Rich, III, Magistrate Judge] 

Before 

Howard, Chief Judge, 

Thompson and Kayatta, Circuit Judges. 

David Glasser for appellant. 

Frederick F. Costlow, with whom Heidi J. Hart and Richardson, 

Whitman, Large & Badger were on brief, for appellee. 

June 25, 2018 
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THOMPSON, Circuit Judge. In 2007, the Town of Camden, 

Maine moved its police department's dispatch operations to the 

Knox County Sheriff's Department in the Town of Rockland. As a 

result, Camden laid off its three police dispatchers, including 

Plaintiff Alan Clukey who had been working as a Camden Police 

Department dispatcher for 31 years. Clukey sued Camden in 2011 

pursuant to 42 U.S.C. § 1983, claiming Camden deprived him of his 

procedural due process rights because it violated the recall 

provision in his collective bargaining agreement (CBA). After a 

three-day trial in July 2016, a jury returned a verdict in favor 

of Camden. Clukey is challenging the result on several fronts. 

For the reasons that follow, we affirm. 

I. BACKGROUND 

The crux of this case centers on a section in Clukey's 

CBA setting out his right to be recalled to employment after 

layoff. The language of the recall provision is, in its entirety, 

as follows: 

In the event it becomes necessary for the Employer to 

layoff employees for any reason, employees shall be laid 

off in the inverse order of their seniority, by 

classification with bumping rights. Bumping shall not 

be allowed between the police function and the 

dispatcher function. All affected employees shall 

receive a two (2) calendar week advance notice of layoff, and the Employer shall meet with the affected 

employee prior to the actual occurrence of layoff. 

Employees shall be recalled from lay-off according to 

their seniority provided they are qualified to fill the 

position. Police function and dispatcher function shall 

be treated separately. 
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The affected employee has recall rights for twelve (12) 

months from the date of such lay-off. 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. If the Town recalls an employee, 

they shall notify said employee by certified letter and 

said employee shall notify the Town in writing within 

ten (10) days of receipt of said letter if he/she wished 

to return to work. Said employee will be required to 

report to work within ten (10) days of giving notice to 

the Town of his/her desire to work. 

Art. 19, § 3 of Agreement between Town of Camden and Camden Police 

Benevolent Association, July 1, 2006 through June 30, 2008 

(emphasis added). We'll refer to the underlined section as the 

"filing requirement" from now on. The main issue at trial was 

whether the CBA's recall provision included a condition precedent 

to triggering the right to be recalled, requiring Clukey to submit 

his contact details to Camden's town manager to indicate his 

interest in being recalled. Before we dive in to Clukey's 

arguments in this appeal, let's take a step back to review what's 

happened in this case so far. 

Clukey I & II: A review

 This appeal is not the first time we have been dispatched 

to review a judgment resolving this case in Camden's favor. Camden 

initially responded to Clukey's complaint with a 12(b)(6) motion 

to dismiss, which the district court granted. We reversed, 

concluding (1) the plain language of the filing requirement 
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indicated the CBA parties' clear intent to provide laid-off 

employees "an entitlement to recall"--indeed, it does say 

"employees shall be recalled"; (2) the scope of the recall right 

(that is, to which positions within the police department the 

recall right applied) was ambiguous; (3) Clukey properly alleged 

a violation of his federal procedural due process rights regardless 

of whether a viable state breach-of-contract claim might exist as 

well; and (4) the precise process due to Clukey could be determined 

by the district court after the parties developed a factual record. 

Clukey v. Town of Camden, 717 F.3d 52, 58, 60, 61, 62 (1st Cir. 

2013) (Clukey I) (emphasis added). Ultimately, ever mindful of 

the posture of the case before us at that time, we held (1) Clukey 

"ha[d] stated facts which, if true, establish that he ha[d] a 

constitutionally protected property interest in his right to be 

recalled to employment with the police department of the Town of 

Camden" and (2) Clukey had adequately alleged that Camden deprived 

him of this interest without the requisite process when it provided 

no notice at all about the positions for which it was hiring during 

the twelve-month period following his layoff. Id. at 59, 62. 

Back in district court, Camden answered Clukey's 

complaint and the parties filed cross-motions for summary 

judgment. Camden asserted the filing requirement created a 

condition precedent, so Clukey's right to recall would have been 

triggered only if he had filed his contact information with the 
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town manager after he was laid off as an indication of his interest 

in being recalled. Clukey, on the other hand, claimed the sole 

purpose of the filing requirement was to ensure Camden had current 

contact details, not to create a condition precedent to his right 

to recall. The district court granted summary judgment in Camden's 

favor, finding the filing requirement unambiguously created the 

condition precedent argued by Camden. Clukey appealed, and we 

reversed once again. Clukey v. Town of Camden, 797 F.3d 97, 105 

(1st Cir. 2015) (Clukey II). 

The only issue before us in Clukey II was "whether the 

recall provision create[d] the condition precedent argued by 

[Camden]" in its motion. Id. at 101. After we closely examined 

the specific words, clauses, and structure of the CBA's recall 

provision, we found both parties' interpretations of the filing 

requirement plausible. Id. at 101-03. As a matter of law, 

therefore, we held the purpose and timing of the filing requirement 

were ambiguous. Id. at 103-04. We also held that the ultimate 

determination of whether the filing requirement created a 

condition precedent to the right to recall would be made by the 

fact finder as a matter of fact. Id. at 104. We noted there was 

no dispute that "Clukey did not submit [his contact] information 

post-layoff," so if it was found that "the CBA condition[ed] an 

employee's recall right on the written submission, after layoff, 

of the employee's mailing address and telephone number," then "this 
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case would necessarily come to an end." Id. at 101, 104. We 

"remand[ed] to the district court for further proceedings, 

including the consideration of any extrinsic evidence that might 

be useful and appropriate in determining the intent behind the 

filing requirement." Id. at 105. 

The jury trial 

On remand, the parties proceeded toward trial on 

Clukey's procedural due process claim.1 Before the trial started, 

Clukey filed two motions in limine. The first sought to prevent 

Camden's witnesses from testifying about their current 

interpretations of the CBA; the trial judge denied this motion 

completely. The second sought to prevent testimony about Clukey's 

right to recall only applying to a dispatcher position; the trial 

judge denied this motion to the extent Clukey wanted to exclude 

testimony and argument about whether his recall rights extended 

specifically to two non-union, non-dispatcher positions filled in 

the twelve months following his layoff (one for an administrative 

assistant and the other for a parking enforcement officer). In 

his written decision, the trial judge commented that, under 

Clukey's argument, he would bear "a burden at least equal to that 

of the town to present evidence of the intent of the union 

 1 Clukey initially also alleged a violation of his substantive 

due process rights and misrepresentation, and his wife alleged 

loss of consortium, but these claims were dismissed at an earlier 

stage of the litigation and were not tried to the jury. 
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negotiators with respect to this language at the time the CBA was 

adopted." 

At trial, the jury heard from eight witnesses; four from 

each side. Clukey was the first witness to testify. He told the 

jury he had started working as a dispatcher in 1976, he joined the 

police union in 1993 for "job security" and because "everyone else 

in the department was joining," and he was still a member of the 

police union when Camden eliminated his position and laid him off 

in 2007. He was the primary financial provider in his family and 

the source of the healthcare insurance benefits for him and his 

wife. He testified that he was "devastated," "discouraged, 

depressed, anxious, [and] couldn't sleep at night" by the news 

that he was going to be laid off. His depression lasted "a long 

time," especially when he couldn't find seasonal work. Clukey 

also testified that, in the years following his layoff, he hadn't 

been able to find work as reliable and secure as the dispatcher 

position; instead he had worked on a seasonal basis with his 

brother, painting houses. 

Clukey also talked about the two positions at the Camden 

Police Department that were filled after his layoff. He testified 

he didn't apply for the administrative assistant position because 

then-Police Chief Roberts had told him he wasn't qualified for the 

position and Clukey knew Chief Roberts would "probably be making 

the ultimate decision as to who got hired for the job." He did 
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not know about the parking officer position until after it was 

filled, but testified he would "[a]bsolutely" have taken it if it 

had been offered to him. Clukey also admitted, however, to 

declaring he wouldn't work for Camden ever again, even if the job 

paid $100 per hour. This statement was part of a letter he wrote 

to the editor of a local Camden newspaper in July 2007 to thank 

the townsfolk who, during a Camden town meeting, had opposed moving 

the dispatch function out of town and to express his disappointment 

that Camden's dispatcher positions had been eliminated. 

Randy Gagne, a longtime member of the Camden Police 

Department, was not available to testify at the trial in person, 

but his deposition transcript was read into the record before the 

jury during Clukey's case-in-chief. Gagne was a police lieutenant 

from 2002 through 2010, then became Chief in 2011 and still held 

this position at the time of his deposition. He testified he was 

not a part of the layoff decision process in 2007 because he is 

related to Clukey by marriage. He also testified the only layoff 

that occurred in the Camden Police Department during his tenure 

was of the dispatchers in 2007.2 None of Clukey's witnesses 

addressed the meaning of the filing requirement. 

 2 Clukey also presented an expert witness who testified about 

Clukey's lost wages. The jury did not reach the question about 

damages so we omit a summary of this testimony. In addition, 

Camden's town manager at the time of the trial testified briefly 

as a rebuttal witness for Clukey about job advertising for Camden 

in general, and specifically about the content of the advertisement 
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 Three of Camden's witnesses testified about their 

interpretations of the CBA's filing requirement. Sharon Gilbert, 

a member of Camden's board of selectmen at the time Camden approved 

and signed the CBA in question, was one of the individuals who 

reviewed and signed the contract. John French joined Camden's 

board of selectmen in 1996 and was still on the board at the time 

of his trial testimony. As a selectman, he reviewed the CBA before 

the board approved it and was part of the contract's negotiations. 

Roberta Smith, Camden's town manager from 2002 to 2011, was 

involved in the administration of the 2007 CBA, meaning she 

"reviewed the [CBA] each time it came up for renewal or at any 

time day to day when any issue arose that [she] had to refer to 

the contract." 

 All three witnesses testified the CBA gave Clukey the 

right to be recalled to the position from which he was laid off, 

i.e., a union dispatcher position, if this position became 

available. Former town manager Smith testified Clukey's recall 

right did not extend to the nonunion parking enforcement officer 

and administrative assistant positions because these positions 

were covered by internal personnel policies. All three interpreted 

the filing requirement as requiring Clukey to file his name and 

address with Camden to indicate his interest in being recalled if 

 

for the parking enforcement officer and administrative assistant 

positions and the salaries advertised for each. 
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a dispatcher position became available. Smith also testified that 

Clukey and the two other dispatchers laid off at the same time as 

Clukey were not specifically told they needed to file their contact 

information with Camden in order to indicate their interest in 

being recalled and secure their right to recall. But one of the 

other dispatchers did in fact file his name and address with Camden 

so he could be considered for recall, leading Smith to "presume 

. . . they understood the terms of the contract."3 

 At the end of the trial, the jury chose "yes" on the 

first question on the special verdict form, which asked whether it 

was more likely than not that the filing requirement "required the 

plaintiff to file his mailing address and telephone number with 

the town manager before he was entitled to be notified of a 

possible recall, even if the town already had that information in 

its files." As a result, the jury did not reach the other questions 

on the verdict form and the district court entered judgment for 

Camden.4 Clukey filed a multi-faceted post-trial motion, renewing 

his request for judgment as a matter of law under Federal Rule of 

 3 Camden also presented testimony from a medical and 

vocational case manager who provided expert testimony on labor 

market surveys in 2007. Like Clukey's expert, his testimony was 

relevant only to damages, which were not calculated by the jury. 

4 Question two asked whether the right to recall extended to 

the parking attendant and administrative assistant positions, 

question three asked whether Clukey would have taken one of those 

positions if offered, and question four asked for a damages 

calculation. 
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Civil Procedure 505, requesting a new trial under Rule 59, and 

requesting relief from the judgment under Rule 60(b)(6). The 

district court denied the motion in its entirety. Undeterred, 

Clukey filed another appeal and we find ourselves recalled once 

more to the weeds of Clukey's grievance against Camden. 

II. DISCUSSION 

Clukey's brief is by no means a model of organizational 

clarity, but we have distilled his many arguments into three broad 

categories. First, Clukey argues that the trial judge erred by 

instructing the jury that each party had the burden of proving its 

respective interpretation of the filing requirement because Camden 

should have borne the sole burden to prove the filing requirement 

contained a condition precedent. Next, Clukey argues Camden's 

witnesses' interpretations of the filing requirement were 

inadmissible extrinsic evidence because these testimonies were 

self-serving and reflected their interpretations of the CBA 

language at the time of trial and not Camden's interpretation of 

the language when the CBA was finalized and executed in 2007. 

Third, Clukey argues the trial judge erred by admitting evidence 

about whether the scope of the recall right extended specifically 

 5 Both parties moved for judgment as a matter of law at the 

close of evidence; the trial judge summarily denied both motions. 
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to the nonunion parking enforcement officer and administrative 

assistant positions which became available after Clukey's layoff.6 

Burden of proof 

The trial judge instructed the jury that "[e]ach party 

[bore] the burden of proof with respect to his or her 

interpretation" of the filing requirement. Clukey challenges this 

instruction as incorrect as a matter of law. 

At the charge conference held in the morning of the third 

and last day of trial, the parties discussed the proposed burden 

of proof instruction, but neither lodged an objection to the 

allocation of a concurrent burden of proof for the interpretation 

of the filing requirement.7 Instead, the parties discussed the 

 6 Clukey also lists the denial of his post-trial motion as an 

issue on appeal, but we deem this issue waived for failure to 

provide any argument about why the denial of the motion was in 

error. See Echevarría v. AstraZeneca Pharmaceutical LP, 856 F.3d 

119, 139-40 (1st Cir. 2017) ("[I]ssues adverted to in a perfunctory 

manner, unaccompanied by some effort at developed argumentation, 

are deemed waived.") (alteration in original) (quoting United 

States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990)). 

7 As we mentioned earlier, the trial judge actually first 

articulated this concurrent burden of proof in his written decision 

addressing Clukey's motion in limine to exclude Camden's 

witnesses' testimony about their interpretations. At that time, 

he wrote: 

[Clukey] ignores the fact that, under his definition of 

extrinsic evidence on this issue [reflecting the intent 

of the parties to the CBA at the time it was negotiated, 

from the individuals involved in the negotiations], 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 
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instruction only when Camden asked the trial judge what would 

happen if the jury determined neither party had met its burden of 

proving its interpretation; i.e., if they got hung up on that 

point. Clukey engaged in the theoretical discussion that followed 

about whether the trial would end with a mistrial if the jury did 

not find for one interpretation over the other--a discussion 

captured over several transcript pages--but he did not raise any 

objection to the proposed instruction. 

Back in the courtroom, when the trial judge instructed 

the jurors, he told them Clukey bore the burden of proving his 

case by a preponderance of the evidence, explained what this meant, 

and then said: 

[A]s to the contract at issue in this case, the parties 

each contend that certain portions of Article 19 of the 

[CBA]--that's Joint Exhibit 1 that will be with you in 

the jury room--between the Town and the Camden Police 

Benevolent Association that was in effect in 2007 should 

be interpreted in a different way. Each party bears the 

 

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. (Emphasis added). 

So it cannot be said Clukey did not have a heads up on the 

district court's thinking by the time of the charge 

conference. 
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burden of proof with respect to his or her interpretation 

of those terms. (Emphasis added). 

At the end of all of the instructions, the trial judge held a 

conference at sidebar so the parties could note their objections 

to the instructions for the record. Clukey lodged three 

objections; none, however, challenged the allocation of the burden 

of proof. 

Before us, Clukey asserts that the trial judge 

misallocated the burden of proof because alleging the existence of 

a condition precedent is an affirmative defense and Camden should 

have therefore borne the sole burden to prove its contention that 

the filing requirement created a condition precedent. We review 

his argument for plain error because he did not object to the 

instruction at trial as required by Fed. R. Civ. P. 51. "[P]lain 

error is one hard test to meet, particularly in civil litigation." 

Rodríguez-Miranda v. Benin, 829 F.3d 29, 42 (1st Cir. 2016) 

(quoting Bielunas v. F/V Misty Dawn, Inc., 621 F.3d 72, 78 (1st 

Cir. 2010)). To establish the trial judge committed plain error 

by instructing the jurors that the parties bore a concurrent burden 

of proof on their respective interpretation of the filing 

requirement, Clukey has to show that (1) a legal error in the 

instruction (2) was an obvious error which (3) affected Clukey's 

substantial rights and (4) "threaten[ed] the fairness, integrity 

or public reputation of the proceedings." United States v. Rivera-
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Ruperto, 852 F.3d 1, 10 (1st Cir. 2017) (citing United States v. 

Delgado-Marrero, 744 F.3d 167, 184 (1st Cir. 2014)). "'[P]lain 

error' is 'an indisputable error by the judge, given controlling 

precedent.'" United States v. Ponzo, 853 F.3d 558, 582 (1st Cir. 

2017) (quoting United States v. Morosco, 822 F.3d 1, 21 (1st Cir. 

2016)). Whether or not Clukey could demonstrate any error in the 

trial judge's burden allocation instruction, he is nonetheless 

unable to show that any error was clear or obvious. In fact, 

Clukey has provided zilch legal support to bolster his argument 

and in our probe of Maine law on this issue, we have found none. 

That being said, one of the most basic principles of 

civil litigation is that "the burden of proof rests upon the party 

who asserts the affirmative of an issue." Federal Trial Handbook 

Civil § 23:4 (4th ed.) (citing 29 Am. Jur. 2d Evidence § 156). 

And it is important to remember that the trial was Clukey's 

opportunity to prove his one and only claim: Camden had violated 

his due process rights when it failed to provide him with notice 

and a hearing before deciding not to recall him to either the 

parking enforcement officer or administrative assistant positions 

that became available in the year immediately following his layoff. 

"To establish a due process violation, [a litigant] must 'show 

first, a deprivation of a protected property interest, and second, 

a denial of due process.'" Núñez Colón v. Toledo-Dávila, 648 F.3d 
- 16 - 

15, 22–23 (1st Cir. 2011) (quoting Pérez-Acevedo v. Rivero-Cubano, 

520 F.3d 26, 30 (1st Cir. 2008)). 

Clukey bore the ultimate burden at trial to prove his 

§ 1983 claim against Camden. Rogan v. City of Boston, 267 F.3d 

24, 27 (1st Cir. 2001). Indeed, the basic legal principles 

governing a § 1983 claim place the sole burden on the plaintiff: 

In a suit brought under the provision of the Civil Rights 

Act, authorizing a civil action for the deprivation of 

rights, the plaintiff has the burden of proof and must 

establish all elements which are essential to maintain 

the cause of action. The plaintiff must prove the 

alleged deprivation of rights, that the deprivation has 

resulted from the breach of a duty owed by the defendant, 

that the deprivation is of a right secured by the 

Constitution and laws of the United States, and that the 

defendant was acting under color of state law. 

14A C.J.S. Civil Rights § 501 (2018). As we said in Clukey I, 

"[u]nder Maine law, a constitutionally protected property interest 

can be created in a public employment contract." Clukey I, 717 

F.3d at 57-58 (citing Krennerich v. Inhabitants of Town of Bristol, 

943 F. Supp. 1345, 1352 (D. Me. 1996)).8 But before the jury could 

get to whether Camden had deprived Clukey of a protected property 

interest, our holding in Clukey II meant Clukey first had to prove 

he had triggered the right to recall. 

Whether the filing requirement language was intended to 

be a condition precedent or not to his recall right was a central 

 8 The parties agree that Maine law applies to the substantive 

issues presented in this case. Clukey II, 797 F.3d at 101. 
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--indeed, as we just said, threshold--issue at trial. We were 

clear in Clukey II that each party had presented a plausible 

interpretation of the filing requirement, rendering this contract 

provision ambiguous as a matter of law. 797 F.3d at 103-04. A 

trier of fact was therefore responsible for deciding which 

interpretation was correct as a matter of fact when the parties 

proceeded to trial on Clukey's entire § 1983 claim. Id. at 104. 

Nowhere in Clukey II did we characterize or frame the 

issue as an affirmative defense to Clukey's cause of action. As 

a result, the burden of proving that the filing requirement was 

not a condition precedent (and therefore that the right to recall 

was triggered) likely rested with Clukey based on general 

principles of burden allocation. To that end, Clukey could have 

presented extrinsic evidence to support his position. Id. ("[T]he 

factfinder may consider extrinsic evidence 'casting light upon the 

intention of the parties with respect to the meaning of the unclear 

language.'") (quoting Hilltop Cmty. Sports Ctr., Inc. v. Hoffman, 

755 A.2d 1058, 1063 (Me. 2000)). But he did not.9 Instead, Clukey, 

as was his druthers, relied entirely on the language of the CBA 

when he argued during his closing that the jury need look no 

 9 We understand that the lack of extrinsic evidence presented 

by Clukey was not for lack of effort in locating such evidence. 

But even if Clukey could not find relevant extrinsic evidence to 

present to the jury to prove his interpretation, it was still his 

burden to meet. 
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further than this language to determine that the filing requirement 

did not require him to provide his contact details to the town 

manager to trigger his entitlement to recall.10 To the extent the 

district court may have erred in instructing the jury that both 

parties bore the burden of proving their interpretations of the 

filing requirement, if anything that instruction redounded to 

Clukey's benefit. But given that Clukey has not demonstrated the 

error was either clear or obvious, we see no plain error here. 

Admissibility of testimony interpreting the filing requirement 

In his brief, Clukey leans heavily on his arguments 

against Camden's witnesses' interpretations of the filing 

requirement as inadmissible extrinsic evidence of the town's 

intent to create a condition precedent. He also asserts that 

without their testimony, Camden could not have met its burden of 

proving the filing requirement contained a condition precedent. 

We review denials of motions in limine and objections to rulings 

on the admissibility of evidence for abuse of discretion. United 

States v. Brown, 669 F.3d 10, 21 (1st Cir. 2012) (evidentiary 

 10 Indeed, he argued repeatedly in his closing that the jury 

need look no further than the plain language of the provision to 

discern the meaning of the filing requirement. For example: 

What evidence is there for [Clukey's] interpretation of 

the contract? The contract. It's English. . . . Read 

it. If you read the plain English, you'll see that what 

the Town is doing is being hyper-analytical, hyperconstructive of plain words and stacking inferences on 

inferences on inferences to try and create a situation 

that is tenable to their position.
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rulings); Hatch v. Trail King Indus., Inc., 656 F.3d 59, 64 (1st 

Cir. 2011) (motions in limine). "Under the 'abuse of discretion' 

standard, this court will not substitute its judgment for that of 

the district court unless left with a 'definite and firm conviction 

that the court below committed a clear error of judgment.'" 

Paolino v. JF Realty, LLC, 830 F.3d 8, 13 (1st Cir. 2016) (quoting 

Schubert v. Nissan Motor Corp. in U.S.A., 148 F.3d 25, 30 (1st 

Cir. 1998)), cert. denied, 137 S. Ct. 2093 (2017). "Even if an 

abuse of discretion occurs, a new trial is not required unless the 

error in admitting evidence 'had a substantial and injurious effect 

or influence upon the jury's verdict.'" Ira Green, Inc. v. 

Military Sales & Serv. Co., 775 F.3d 12, 18 (1st Cir. 2014) 

(quoting Gomez v. Rivera Rodríguez, 344 F.3d 103, 118 (1st Cir. 

2003) and citing Fed. R. Civ. P. 61).11

Even if we assume arguendo that the trial judge abused 

his discretion when he allowed Camden's witnesses' interpretations 

 11 A quick aside about the standard of review. While Camden 

does not question whether Clukey's appeal from the denial of his 

motion in limine on this issue was properly preserved, Clukey is 

clearly concerned about it. He claims that he renewed his motion 

in limine at the start of trial, but the transcript does not back 

this up. Clukey filed a "Motion to Correct Record on Appeal," 

asking the trial judge to modify the record if he remembered 

Clukey's renewal of his motion in limine. The trial judge denied 

the motion. None of this matters though, because prior to trial, 

the judge made a definite ruling denying Clukey's motion in limine.

Clukey was therefore not required to renew his motion or his 

objections to the testimony at the outset of trial. See United 

States v. Brown, 669 F.3d 10, 22 n.18 (1st Cir. 2012); Rodríguez 

v. Señor Frog's de la Isla, Inc., 642 F.3d 28, 35 (1st Cir. 2011); 
- 20 - 

of the purpose of the filing requirement (though we doubt Clukey's 

arguments against the admissibility of these testimonies are 

winning ones), he cannot prevail because he doesn't argue the 

jury's deliberations were tainted by hearing the supposed 

inadmissible testimony. See Tersigni v. Wyeth, 817 F.3d 364, 369 

(1st Cir. 2016) ("We may affirm in spite of an erroneous 

evidentiary ruling if the error was harmless, meaning that 'it is 

highly probable that the error did not affect the outcome of the 

case.'") (quoting McDonough v. City of Quincy, 452 F.3d 8, 19–20 

(1st Cir. 2006)). As a result, Clukey has waived on appeal any 

argument that he was prejudiced. Such a waiver is fatal on 

harmless error review.12 

III. CONCLUSION 

As we indicated in Clukey II and again reiterated here, 

Clukey's case "necessarily c[a]me to an end" when the jury 

 

Fed. R. Evid. 103(b) ("Once the court rules definitively on the 

record--either before or at trial--a party need not renew an 

objection or offer of proof to preserve a claim of error for 

appeal."). Even so, he repeatedly objected during Camden's 

witnesses' testimonies when they testified to their 

interpretations of the filing requirement. All of this is to say 

that we agree with Clukey that his objections on this issue are 

preserved and we review for abuse of discretion. 

12 To quickly address Clukey's last argument--that the 

district court erred by admitting evidence about whether the scope 

of the recall right was limited to union positions or whether it 

extended specifically to the parking enforcement officer and 

administrative assistant positions that became available in the 

year after Clukey's layoff--we note that the jury did not reach 

the question on the verdict form about whether Clukey's right 

extended to these positions because it stopped its deliberations, 
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determined that "the CBA condition[ed] an employee's recall right 

on the written submission, after layoff, of the employee's mailing 

address and telephone number," 797 F.3d at 101, and there was no 

dispute that Clukey had not contacted the town manager with his 

contact details after his layoff, id. at 99. "[I]f he failed to 

meet such a condition precedent, he would never have acquired a 

right to recall." Id. at 101 ("An elementary rule of contract law 

is that the nonoccurrence of a condition discharges the parties 

from their duties under the contract.") (quoting Irving v. Town of 

Clinton, 711 A.2d 141, 142 (Me. 1998)). Without a right to recall, 

there was no deprivation of a protected property interest and no 

violation of his due process rights. 

The judgment in favor of Camden is, therefore, affirmed. 

Each party will bear its own costs. 

 

as instructed on the special verdict form, after determining that 

the purpose of the filing requirement was to notify Camden of one's 

interest in being recalled. If there was any error in admitting 

the testimony about the scope of the recall right, it is harmless. 

See Tersigni v. Wyeth, 817 F.3d 364, 370 (1st Cir. 2016).