Filed: Feb. 28, 2011
Latest Update: Feb. 22, 2020
Summary: Bernard Moore on brief pro se.state a claim.Reconciliation Act of 1985 (COBRA), 29 U.S.C. § 1161(a).1, We have consolidated Moore's appeal from the denial of a, preliminary injunction (Appeal No. 10-1337) with his appeal from, the dismissal of his complaint (Appeal No. 10-1501).coverage);
Not for Publication in West's Federal Reporter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
Per Curiam. Bernard Moore has appealed the judgment of
the district court dismissing his complaint.1 We review, de novo,
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
1
We have consolidated Moore's appeal from the denial of a
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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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
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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."2 Upon de novo review, we agree with this
characterization and find no error.
The judgment of the district court entered on April 7,
2010 is affirmed.
2
The fact that the district court assumed in Moore's favor
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 well-
accepted 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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