
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                                [NOT FOR PUBLICATION]                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE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.        __________
