Not for Publication in West's Federal Reporter

United States Court of Appeals

For the First Circuit

Nos. 10-1337 and 10-1501

BERNARD MOORE,

Plaintiff, Appellant,

v.

WILLIAMS COLLEGE,

Defendant, Appellee.

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Michael A. Ponsor, U.S. District Judge]

Before

Torruella, Lipez and Thompson,

Circuit Judges.

Bernard Moore on brief pro se.

Daryl J. Lapp, Robert G. Young and Edwards Angell Palmer &

Dodge LLP, on brief for appellee.

February 28, 2011
We have consolidated Moore's appeal from the denial of a 1

preliminary injunction (Appeal No. 10-1337) with his appeal from

the dismissal of his complaint (Appeal No. 10-1501). The denial of

the preliminary injunction has merged in the final judgment, see

Chaparro-Febus v. Local 1575, 983 F.2d 325, 331 n.5 (1st Cir.

1993), and so we need not address it separately.

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Per Curiam. Bernard Moore has appealed the judgment of

the district court dismissing his complaint. We review, de novo, 1

a district court's grant of a motion to dismiss for failure to

state a claim. IOM Corp. v. Brown Forman Corp., 627 F.3d 440, 446

(1st Cir. 2010). Upon de novo review, we affirm essentially for

the reasons stated in the district court's memorandum and order,

dated April 7, 2010.

We add only the following:

(1) We deem, as waived, Moore's claims of breach of

employment contract, wrongful termination, and violation of tenant

rights as he has failed to make any developed argument as to them.

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

(reciting that "issues adverted to in a perfunctory manner,

unaccompanied by some effort at developed argumentation, are deemed

waived").

(2) The only claim pursued on appeal is Moore's request for

injunctive relief permitting him to acquire continuation of health

insurance coverage under the Comprehensive Omnibus Budget

Reconciliation Act of 1985 (COBRA), 29 U.S.C. § 1161(a).

Presumably, he is asking that Williams College be directed to
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rescind its characterization of his actions as "gross misconduct"

that has statutorily barred his eligibility. See 29 U.S.C. §

1161(a) (requiring a plan sponsor to provide that a qualified

beneficiary that loses coverage as a result of a qualifying event

is entitled to elect, within the election period, continuation

coverage); § 1163(2) (excluding termination for gross misconduct

from the definition of qualifying event). As Moore is currently

incarcerated, it appears that the only claim pursued on appeal is

now moot as he no longer has any need for COBRA-provided health

care coverage.

(3) In any event, assuming, without deciding, that the appeal

is not moot, it is meritless. Moore contends that the district

court erred in determining that his actions that resulted in his

termination constituted "gross misconduct" for purposes of COBRA

coverage because, he argues, he did not engage in gross misconduct

while employed at Williams College from July 2008 to November 2009.

Moore offers no persuasive authority for his contention that that

which constitutes "gross misconduct" is limited to the period of

one's employment. While the two cases he cites involved instances

of gross misconduct alleged to have occurred during a period of

employment, see Kariotis v. Navistar Int'l. Transp. Corp., 131 F.3d

672 (7th Cir. 1997); Richard v. Industrial Commercial Elec. Corp.,

337 F.Supp. 2d 279 (D. Mass. 2004), they do not support the

contention that an employer is permitted to terminate an employee
The fact that the district court assumed in Moore's favor 2

that he did not commit any crimes while actively employed by

Williams effectively resolves Moore's misdirected (and, it appears,

legally incorrect) arguments that (a) the district court should not

take judicial notice of the filings in his criminal case and (b)

his guilty plea was not the equivalent of a "conviction." See

Kowalski v. Gagne, 914 F.2d 299, 305 (1st Cir. 1990) ("It is wellaccepted that federal courts may take judicial notice of

proceedings in other courts if those proceedings have relevance to

the matters at hand"); Kercheval v. United States, 274 U.S. 220,

223 (1927) (reciting that a guilty plea "is itself a conviction").

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only for instances of gross misconduct that occurred during the

period of employment. We need not determine whether that which

constitutes "gross misconduct" for purposes of the COBRA provision

is limited to the period of employment. Even assuming that "gross

misconduct" is limited to the period of employment, Moore has no

effective answer to the district court's characterization of his

concealment and misrepresentation of his credentials during the

period of employment at Williams College as constituting "gross

misconduct." Upon de novo review, we agree with this 2

characterization and find no error.

The judgment of the district court entered on April 7,

2010 is affirmed.