Storlazzi v. Bakey

USCA1 Opinion

October 31, 1995 October 31, 1995

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

____________

No. 95-1596

EDMUND G. STORLAZZI,

Plaintiff, Appellant,

v.

JANICE BAKEY, ET AL.,

Defendants, Appellees.

____________

ERRATA SHEET

The opinion of this court issued on October 24, 1995, is

amended by replacing the cover sheet with the attached.

[NOT FOR PUBLICATION] [NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT FOR THE FIRST CIRCUIT

____________________

No. 95-1596

EDMUND G. STORLAZZI,

Plaintiff, Appellant,

v.

JANICE BAKEY, ET AL.,

Defendants, Appellees.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Nancy J. Gertner, U.S. District Judge] ___________________

____________________

Before

Boudin, Circuit Judge, _____________

Bownes, Senior Circuit Judge, ____________________

and Keeton, *District Judge. ______________

____________________

Matthew Cobb, with whom The Law Office of Matthew Cobb was on ____________ _________________________________

brief for appellant. Harold Robertson, with whom Harmon & Robertson ________________ ___________________

were on brief for appellant.

Rodney E. Gould, with whom Craig S. Harwood, and Rubin, Hay & ________________ _________________ _____________

Gould, P.A., were on brief for Arlington School Committee and School ___________

Administration, defendants-appellees.

Paul F. Kelley, with whom Donald J. Siegel, and Segal, Roitman & ______________ ________________ _________________

Coleman, were on brief for Massachusetts Teachers Association and _______

Arlington Education Association, appellees.

Americo A. Salini, Jr., on brief for Virginia Fuller, et al., the ______________________

individual named members of the Arlington Education Association and

Arlington Education Association, defendants-appellees.

____________________

____________________

_______________

*Of the District of Massachusetts, sitting by designation.

October 24, 1995 [NOT FOR PUBLICATION] [NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT FOR THE FIRST CIRCUIT

____________________

No. 95-1596

EDMUND G. STORLAZZI,

Plaintiff, Appellant,

v.

JANICE BAKEY, ET AL.,

Defendants, Appellees.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Nancy J. Gertner, U.S. District Judge] ___________________

____________________

Before

Boudin, Circuit Judge, _____________

Bownes, Senior Circuit Judge, ____________________

and Keeton, *District Judge. ______________

____________________

Matthew Cobb, with whom The Law Office of Matthew Cobb was on ____________ _________________________________

brief for appellant. Harold Robertson, with whom Harmon & Robertson ________________ ___________________

were on brief for appellant.

Rodney E. Gould, with whom Craig S. Harwood, and Rubin, Hay & ________________ _________________ _____________

Gould, P.A., were on brief for Arlington School Committee and School ___________

Administration, defendants-appellees.

Paul F. Kelley, with whom Donald J. Siegel, and Segal, Roitman & ______________ ________________ _________________

Coleman, were on brief for Massachusetts Teachers Association and _______

Arlington Education Association, appellees.

Americo A. Salini, Jr., on brief for Virginia Fuller, et al., the ______________________

individual named members of the Arlington Education Association and

Arlington Education Association, defendants-appellees.

____________________

____________________

_______________

*Of the District of Massachusetts, sitting by designation.

BOWNES, Senior Circuit Judge. Plaintiff-appellant, Edmund G. BOWNES, Senior Circuit Judge. _____________________

Storlazzi, was a high school teacher in the Arlington, Massachusetts,

school system. He appeals from summary judgment for three sets of

defendants in three cases, which were consolidated for trial. The

first case, filed on June 15, 1989, (Storlazzi I) named as defendants _________

past and present members of the Arlington School Committee, past and

present administrators of Arlington High School, and past and present

members of Arlington Education Association. The complaint in this

case alleged the following: a violation of 42 U.S.C. 1983 because

plaintiff was deprived of his First Amendment right to freedom of

speech; breach of the collective bargaining agreement by the School

Committee; breach of a 1982 settlement agreement by the School

Committee; breach of the duty of fair representation by the Arlington

Education Association; defamation and intentional infliction of

emotional distress.

The second action, which was filed on March 19, 1993, after

plaintiff's motion to amend the first complaint was denied without

prejudice, alleged: that plaintiff's employment was terminated

because he exercised his First Amendment right to freedom of speech; a

due process violation for failing to provide notice and a pre-

termination hearing; violation of his rights under the Massachusetts

Civil Rights Act; intentional interference with his teaching contract;

and intentional infliction of emotional distress. The defendants in

Storlazzi II were named members of the School Committee, the High _________

School Administration, and the Union (Arlington Education

Association).

Plaintiff filed his third action on May 12, 1993, against the

School Committee, the Union and the Massachusetts Teachers'

Association. The complaint alleged: the School Committee failed to

train the School Administration officials so as to prevent retaliatory

action; breach of the Collective Bargaining Agreement by the School

Committee; breach of the duty of fair representation by the Union and

the Massachusetts Teachers' Association (state teachers' union); and

violation of the Massachusetts Civil Rights Act.

Plaintiff forwards three issues: that the cases were improperly

consolidated; that the summary judgment was improper because of

procedural defects; and there was no substantive basis for the summary

judgment. After carefully examining the record, we affirm the

judgment of the district court.

Consolidation Consolidation _____________

We start with Fed. R. Civ. P. 42(a):

(a) Consolidation. When actions involving a common (a) Consolidation.

question of law or fact are pending before the court, it may

order a joint hearing or trial of any or all the matters in

issue in the actions; it may order all the actions

consolidated; and it may make such orders concerning

proceedings therein as may tend to avoid unnecessary costs or

delay.

There can be little doubt that the three consolidated cases fall

within the plain language of the Rule. They involve common questions

of law and fact. And the plaintiff has crisscrossed the defendants in

the three suits. We note that in the first hearing before the

district judge who took over the cases, counsel for the plaintiff in

Storlazzi I agreed with the court at least twice that the three cases _________

should be tried together.* Our standard of review on this issue is

abuse of discretion. See 9 Charles A. Wright and Arthur R. Miller, ___

Federal Practice and Procedure 2383 (1995). As we pointed out in _______________________________

Seguro de Servicio de Salud v. McAuto Sys., 878 F.2d 5 , 8 (1st Cir. ___________________________________________

1989), "[a] motion for consolidation will usually be granted unless

the party opposing it can show 'demonstrable prejudice.'" (citation

omitted). There has been no prejudice shown here. These were

paradigm cases for consolidation.

Summary Judgment - Procedure Summary Judgment - Procedure ____________________________

Plaintiff objects to the grant of summary judgment on three

procedural grounds: that no motion had been made by defendants for

summary judgment; that no notice had been given by the district court

that summary judgment was in the offing; and that plaintiff had no

opportunity for discovery prior to the grant of summary judgment.

These claims require a careful examination of the record. At the

first conference with counsel on May 12, 1994, the court set June 2,

1994 as the date for a hearing on summary judgment as to Storlazzi I. _________

The court also advised counsel that on the same day it would hear

____________________

*Counsel in Storlazzi I told the court that he did not represent the _________

plaintiff on the other two cases. Counsel in those cases was not

present at the hearing.

defendants' motions to dismiss Storlazzi II and III. _________

At the hearing on June 2, the two counsel for the plaintiff were

present. Attorney Cobb, who represented the plaintiff in Storlazzi II _________

and III did most of the arguing for the plaintiff. He first stated

that there was no discovery in cases II and III. The court responded

by pointing out that in connection with Storlazzi I depositions of all _________

the defendants had been taken and that their depositions included

questions about plaintiff's discharge. She then asked, "What's left

to do?" Attorney Cobb gave a vague general answer invoking

"Monell."** He never, however, told the court what additional ______

depositions, if any, he intended to take, or what affidavits, if any,

he intended to file. In short, plaintiff's counsel did not answer the

court's question as to what further discovery he intended to

undertake. In light of the fact that Storlazzi II and III had been in _________

gestation for more than a year prior to this hearing, we conclude that

plaintiff's claim that he had been deprived of discovery in these

cases has no merit.

We next consider the claim that plaintiff did not receive proper

notice that the court was considering summary judgment. It is true

that defendants did not formally move for summary judgment. They did,

however, file motions to dismiss accompanied by deposition references

and affidavits. This automatically triggered summary judgment under

Fed. R. Civ. P. 12 (c) which provides:

(c) Motion for Judgment on the Pleadings. After the (c) Motion for Judgment on the Pleadings.

pleadings are closed but within such time as not to delay the

____________________

**Monell v. Dep't of Social Serv., 436 U.S. 658 (1978). _______________________________

trial, any party may move for judgment on the pleadings. If,

on a motion for judgment on the pleadings, matters outside

the pleadings are presented to and not excluded by the court,

the motion shall be treated as one for summary judgment and

disposed of as provided in Rule 56, and all parties shall be

given reasonable opportunity to present all material made

pertinent to such a motion by Rule 56.

We assume that one who brings an action in federal court is familiar

with the Federal Rules of Civil Procedure.

The plain language of Rule 12(b)(6) that materials outside

the pleading may be considered if not excluded by the court

put plaintiff on notice that the motion might be converted

into one for summary judgment.

Moody v. Town of Weymouth, 805 F.2d 30, 31 (1st Cir. 1986). _________________________

Our observation in Chaparro-Febus v. Local 1575, 983 F.2d 325 , _____________________________

332 (1st Cir. 1992) applies to the situation here:

In the present case, plaintiffs had almost a year between

the filing of the motion to dismiss and the court's treatment

of that motion as one for summary judgment. Moreover, over a

year had elapsed since plaintiffs initially filed their

complaint. Summary judgment did not "follow[] hard on the

heels of the complaint or answer." (citation omitted).

Moreover, the transcript of the June 2, 1994, hearing shows that

the district court was thinking in terms of summary judgment

disposition. Most of the hearing was devoted to the judge's

explanation to plaintiff's counsel of why the pleadings alone did not

suffice to make out a case. A few examples make clear the message the

judge was sending.

First, I am obliged on summary judgment to look to the

pleadings, the affidavits that have been filed, the

depositions, answers to interrogatories, et cetera. And what

I see in this case -- correct me if I am wrong -- is the

plaintiff has pled a host of things, a host of accusations,

in his initial complaint. The defendants have come back with

affidavits and depositions attached. And with respect to a

number of those accusations, there's silence on the

plaintiff's side.

And the law is that the allegation in the complaint is not

established where there is an affidavit to it. In other

words, the plaintiff says in his complaint that he objected

to the way students were given credit for taking courses,

that, in particular, in the case of one student whose name is

Sunshine Renews, he objected to the way the grade was entered

in her case. The defendants, through their depositions and

through the affidavits, say, "Here's the explanation for why

we interposed a grade like that." And then his answer is, "I

disagree."

Well, with respect to that kind of an accusation, it seems

to me the plaintiff hasn't met his burden. That's not a

sufficient response.

__________

Then I tried to discern from what was protected whether

there was a causal -- when the plaintiff made out his case,

that there was a causal connection between what he said and

what was done to him. And one way of establishing causal

connection is by showing, "I did this at Time One, and then

they retaliated at Time Two."

With respect to a whole host of Mr. Storlazzi's

accusations, I cannot fix the time at all from his papers. I

can't determine that he complained about X on this date and

then something followed. That's -- although coincidence of

timing is not dispositive on the issue of causation, it's

very helpful. Many of the things he has alleged have no date

to them at all.

With respect to those things which he says he was

retaliated about, the defendants answer and point to either a

rational basis for doing what they did or suggest that there

was no difference between his treatment and others. Singling

someone out for special treatment is one piece of evidence of

retaliation. And, as I have said before, I can't in each of

these cases come up with an example in which the plaintiff

says -- the plaintiff rebuts that presentation.

So you need, with respect to each of these accusations, to

say -- to prove in some fashion, more than just a conclusion,

that, in fact, he was singled out in some way different from

all the other players who had administrative actions

performed against them, or that there wasn't a rational

basis.

__________

So with respect to all of the administrative decisions,

all the administrative actions here about transferring

students, about locking student lavatories, about

administering final exams, and my understanding is

preliminary of this case, is that, if they can provide a

rational basis for having taken the positions that they did,

then that would be sufficient, and the plaintiff has to

respond.

__________

After the court briefly discussed the Mt. Healthy*** _____________

requirements, counsel for the plaintiff pointed out that Mt. Healthy ___________

was decided on the merits, not on a summary judgment basis. The court

responded as follows:

But summary judgment predicts what a jury is going to do. So

that I am supposed to take the inferences all in favor of the

plaintiff, and looking at the documents I have described, I

am supposed to predict whether or not a reasonable jury could

find a prima facie case, a reasonable jury could find that _____ _____

the defendants have met their burden.

So I am using Mount Healthy simply because it describes

the various burdens which are part of what I have to consider

on summary judgment as well.

The court gave plaintiffs' attorneys a week in which to organize

the pleadings, setting forth chronologically the order of events. The

court pointed out that "one way of proving causal connection is a

temporal one." The court stated explicitly that it wanted this "in

terms of evaluating summary judgment."

Clearly this was not the type of sua sponte summary judgment by ___ ______

the district court that we condemned in Stella v. Town of Tewksbury, _____________________________

Mass., 4 F.3d 53 (1st Cir. 1993) (Both parties prepared to start jury _____

trial and were surveying prospective jurors when visiting judge, new

to case, ordered defendants to move for summary judgment. Plaintiffs

____________________

***Mt. Healthy City Board of Education v. Doyle, 429 U.S. 274 (1977). ____________________________________________

objected without avail. Three days later judge issued summary

judgment for defendants.).

Summary Judgment - Substantive Summary Judgment - Substantive ______________________________

We adopt the district court's extensive findings and rulings in

its substantive summary judgment holding.**** We, therefore, will

not regurgitate the district court's opinion. We think it

appropriate, however, to make a few general remarks. First, the

plaintiff relied entirely on his pleadings to make out a prima facie _____ _____

case. He did not respond directly to the asseverations supported by

affidavits and references to filed depositions made by defendants.

The law governing such a posture is clear.

In our view, the plain language of Rule 56(c) mandates the

entry of summary judgment, after adequate time for discovery

and upon motion, against a party who fails to make a showing

sufficient to establish the existence of an element essential

to that party's case, and on which that party will bear the

burden of proof at trial.

Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). ________________________

In Kelly v. United States, 924 F.2d 355, 357 (1st Cir. 1991), we _______________________

held that the nonmovant in the summary judgment context may not rest

upon "mere allegations . . . but must produce evidence which would be

admissible at trial to make out the requisite issue of material fact."

This, plaintiff has utterly failed to do.

The observations made in Kaufman v. Puerto Rico Tel. Co., 841 _________________________________

F.2d 1169, 1172-73 n.5 (1st Cir. 1988), are germane here:

5. The plaintiffs argue that the sworn statements in their

complaint and affidavits constitute sufficient grounds to

____________________

****The district court opinion is cited as Storlazzi v. Bakey, 894 F. __________________

Supp. 494 (D. Mass 1995).

generate a factual dispute concerning the defendants'

political motivations because they provide the groundwork for

proof of that motivation by circumstantial evidence. We

recognize that a prima facie case of political discrimination ___________

can be built on circumstantial evidence of constitutionally

suspect motivations for employee dismissals. See, e.g., ___________

Kercado-Melendez v. Aponte-Rogue, 829 F.2d at 264. In ___________________________________

calling for more specific factual allegations to support the

plaintiffs' claim under the Celotex/Anderson standard, ________________

however, we do not reject the plaintiffs' contention.

Rather, for any substantive claim, whether built upon

circumstantial or direct evidence, the party against whom

summary judgment is sought must generate the specific facts

necessary to take the asserted claim out of the realm of

speculative, general allegations. The plaintiffs have failed

to do that in this case.

During the June 2 hearing there was discussion between the court

and plaintiff's counsel which could be interpreted to mean that the

temporal proximity of occurrences might be sufficient to establish

causation. This would appear to run counter to the rule in this

circuit. In Kaufman we held that the dismissal of members of one _______

political party immediately after the opposition party took office was

insufficient under Celotex and Anderson v. Liberty Lobby, Inc., 477 _______ ________________________________

U.S. 242 (1986), to generate a genuine issue of material fact.

Kaufman, 841 F.2d at 1172. We held to the same effect in Aviles- _______ _______

Martinez v. Monroig, 963 F.2d 2, 5 (1st Cir. 1992). See also Acevedo- ___________________ ___ ____ ________

Diaz v. Aponte, 1 F.3d 62, 69 (1st Cir. 1993). ______________

The judgment of the district court is affirmed. Costs awarded to The judgment of the district court is affirmed. Costs awarded to __________________________________________________________________

appellees. appellees. __________