Before
Lynch, Chief Judge,
Howard, Circuit Judge,
and Casper,* District Judge.
May 3, 2013
Island
("Town"),
alleges
that
he
received
insufficient
the
Town
violated
art.
III,
of
the
Rhode
Island
For the
Appellant
Senra was
hired
by
the
Town
as
a Deputy
To obtain the
status
as a
probationary
employee initially
Senra still had not obtained the certification, the Town Manager
extended Senra's probation for another three months.
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By January
On
January 12, 2009 the Town Manager, the Town Building Official and
the Town Human Resources Director met with Senra to address the
problem.
his passing the required examinations, and the Town Manager agreed
to give Senra until March 31, 2010 to obtain the certification.1
Senra's
timetable
required
him
to
pass
the
first
examination by April 15, 2009 and to pass the second by August 15,
2009.
He took but
failed the first examination on April 25, 2009, and after that took
no
more
tests.
Despite
this,
the
Town
extended
Senra's
probationary status for two months in June 2009, and then again for
two months in September 2009.
One week before his probationary status was set to
expire, the Town Manager on November 10, 2009 met with Senra and
advised Senra that he was going to be terminated.
and the union business agent appeared at a hearing before the Town
Manager.
At the
Accordingly, the
his
reinstatement,
Senra
had
still
not
At the end
obtained
the
prior
the
Senra
requested
arbitration
but
to
-4-
argues
that
the
court
erred
by
exercising
Analysis
First, Senra
Rumford Pharm.,
Inc. v. City of East Providence, 970 F.2d 996, 999 (1st Cir. 1992).
To assert such a claim "arising out of the termination of his
employment, a public employee must first demonstrate that he has a
reasonable expectation, arising out of a statute, policy, rule, or
contract, that he will continue to be employed."
Wojcik v. Mass.
State Lottery Comm'n, 300 F.3d 92, 101 (1st Cir. 2002) (citing
Perkins v. Bd. of Dirs. of Sch. Admin. Dist. No. 13, 686 F.2d 49,
-6-
Id.
procedures
when
evaluating
whether
plaintiff
was
law
provide[s]
constitutionally
adequate
argues
here
that
the
defect
in
his
However,
post-termination
Id.
statute
in
firing
Senra,
post-termination
arbitration only need address the asserted basis for the employee's
termination and, if the opportunity had not already been provided
prior to termination, give the employee the ability to provide his
side of the story to a decision maker.
Here,
than
the
arbitrator
to
address
Senra's
statutory
and
The Town charter and bylaws are not in the record, but
Defendants do not dispute Senra's characterization of their
requirements.
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[state] law."
procedural due process given to Senra, which included a predeprivation hearing with notice and union representation at the
hearing, where both the representative and Senra spoke, and the
post-termination
arbitration
proceeding,
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where
Senra
was
to
neutral
arbiter,
satisfied
Senra's
rights
to
Senra's
Because we so
28 U.S.C. 1367(a).
"[T]he
249, 256-57 (1st Cir. 1996); see also Delgado v. Pawtucket Police
Dept., 668 F.3d 42, 48 (1st Cir. 2012) (finding that "[t]he
district court's decision here to retain jurisdiction over the
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to
exercise
supplemental
jurisdiction
In deciding
in
such
Roche, 81
F.3d at 257; see Redondo Constr. Corp. v. Izquierdo, 662 F.3d 42,
49 (1st Cir. 2011) (noting that "the proper inquiry is 'pragmatic
and case-specific'" (quoting Roche, 81 F.3d at 257)).
Here, the parties had been actively litigating the matter
for more than a year, and a seven-month window for discovery had
closed well before the district court considered the state law
claims.
economy, and found that the questions of state law were not so
novel as to warrant the added time and expense inherent in a remand
to state court.
we
cannot
say
that
the
district
abused
its
law,'
[and
constitutional
has
held]
provision."
that
A.F.
it
is
Lusi
not
self-executing
Constr.,
Inc.
v.
R.I.
Convention Ctr. Auth., 934 A.2d 791, 798 (R.I. 2007) (quoting
Smiler v. Napolitano, 911 A.2d 1035, 1039 n.5 (R.I. 2006)).
Under
Id. (quoting
case, the Supreme Court of Rhode Island, after quoting the entire
section
above,
held
that
"although
article
3,
section
7,
Id.
Senra argues that because the A.F. Lusi court did not
explicitly address the last sentence stating that "[s]uch persons
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shall hold their positions during good behavior," the A.F. Lusi
case's holding is properly limited to address only the first
portion of that constitutional section.
The intended
That chapter
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Malone v.
-16-
Conclusion
constitution.
See
A.F.
Lusi
Constr.,
Inc.
v.
R.I.
Convention Ctr. Auth., 934 A.2d 791, 798 (R.I. 2007) (announcing
that
"article
constitutional
3,
section
provision").
As
is
the
not
self-executing
majority
implicitly
the
first
clause
of
the
ethical
conduct
provision,
which
A.F.
Lusi did not involve the second clause of the ethical conduct
provision -- the clause at issue here, which provides that "[s]uch
persons [i.e., public officials and employees] shall hold their
positions during good behavior." R.I. Const. art. III, 7, cl. 2.
Accordingly, whether the Rhode Island Supreme Court intended its
pronouncement to extend to the independent "good behavior" clause
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is at best unclear.
Senra has
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