GEORGE P. CONDURAGIS, Plaintiff, Appellee,
PROSPECT CHARTERCARE, LLC, d/b/a CHARTERCARE HEALTH PARTNERS; PROSPECT CHARTERCARE PHYSICIANS, LLC, d/b/a CHARTERCARE MEDICAL ASSOCIATES, Defendants, Appellants.
FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
RHODE ISLAND [Hon. John J. McConnell, U.S. District Judge]
Jillian S. Folger-Hartwell, with whom Alexsa A. Marino and
Littler Mendelson, P.C. were on brief, for appellants.
Richard A. Sinapi, with whom Joshua D. Xavier and Sinapi Law
Associates, LTD. were on brief, for appellee.
Howard, Chief Judge, Selya and Thompson, Circuit Judges.
THOMPSON, Circuit Judge.
facts giving rise to this case are familiar to the parties
and reported in the district court's order. So a simple
CliffNotes summary suffices for purposes of this opinion - an
opinion that is a companion to our decision released today,
Britto v. Prospect Chartercare, LLC, F.3d (1st Cir.
2018) [No. 18-1009], knowledge of which is assumed.
sued Defendants in federal court, basically alleging that
they fired him in violation of the Family Medical Leave Act
and the Rhode Island Parental and Family Medical Leave Act.
Defendants later asked the district court to dismiss the case
and compel arbitration based on the parties' signed
arbitration agreement. Concluding, however, that the
agreement failed for lack of consideration, the court denied
to the district court, the parties' mutual promise to
arbitrate constituted insufficient consideration to support
the arbitration agreement, because Defendants reserved the
right in an offer letter to change Plaintiff's employment
terms, like submitting disputes to arbitration, at any time -
circumstances, the court said, that made Defendants'
promise to arbitrate illusory. The district court also
concluded that Defendants' offer to keep Plaintiff on as
an at-will employee, made at the time of the agreement's
signing, constituted insufficient consideration as well - a
conclusion, the court added, driven by a Rhode Island trial
court opinion, D. Miguel & Son Co. v. Barbosa,
No. C.A. 84-3186, 1985 WL 663146 (R.I. Super. Ct. Mar, 11,
now appeal. And we review de novo. See,
e.g., Nat'l Fed'n of the Blind v. Container
Store, Inc., 904 F.3d 70, 78 (1st Cir. 2018). Without
deciding whether Defendants' rights reservation made
their arbitration promise illusory and thus inadequate
consideration, we hold that their offer of continued at-will
employment is valid consideration for the agreement, given a
Rhode Island Supreme Court opinion, Oken v. Nat'l
Chain Co., 424 A.2d 234 (R.I. 1981) - a holding
compelled by our Britto decision, F.3d at [slip op.
at 15-16]. Just as it did for the Britto plaintiff,
Oken rejects the very arguments Plaintiff briefed to
us here. And there is no reason to repeat in these pages what
we wrote in Britto.
couple of loose ends remain to be tied up, however, and we
Plaintiff moved in this court to supplement the record with
pages from an employee handbook that he says
"reinforces" his and the district court's view
that Defendants "retained the right to change the terms
and conditions of [his] employment at any time, including the
[a]rbitration [a]greement." Because consideration of the
handbook would make no difference to the result we just
reached, we deny the motion. See Riley v. Rivers,
710 Fed.Appx. 503, 504 (2d Cir. 2018) (summary order).
in the conclusion section of his brief, Plaintiff suggests
for the first time that the arbitration agreement is
"procedural[ly] unconscionabl[e]" and therefore
unenforceable because of the circumstances surrounding the
agreement's signing, at least as he "recalls"
the circumstances. And he asks us to remand "for limited
discovery" so he can flesh out his recollection, which
would then allow the district court to resolve "the
issue of procedural unconscionability." Not only does he
fail to give us a legal basis for how we can order discovery
in the circumstances of this case, he also does not explain
how - in addition to being procedurally unconscionable - the
agreement is substantively unconscionable. See
Britto, F.3d at [slip op. at 19] (noting that Rhode
Island law holds "a contract is unenforceable if it is
both procedurally and substantively unconscionable").
And so we deem the argument waived. See Town of Norwood
v. Fed. Energy Regulatory Comm'n, 202 F.3d 392, 405
(1st Cir. 2000) (stressing that "developing a sustained
argument out of . . . legal precedents" is a
litigant's job, not ours); see also Muñiz v.
Rovira, 373 F.3d 1, 8 (1st Cir. 2004) (emphasizing that
a party waives an argument by presenting it "to us in
skeletal form, without citation to any pertinent
bottom line: We deny Plaintiff's motion to supplement,
reverse the decision of the district court, and remand the
case with instructions to grant Defendants' motion to
dismiss and compel ...