
USCA1 Opinion

	




                            United States Court of Appeals                                For the First Circuit                                 ____________________        No. 96-1443                                   EUGENE ANDERSON,                                Plaintiff, Appellant,                                          v.                           BOSTON SCHOOL COMMITTEE, ET AL.,                                Defendants, Appellees.                                 ____________________        No. 96-1578                                   EUGENE ANDERSON,                                 Plaintiff, Appellee,                                          v.                           BOSTON SCHOOL COMMITTEE, ET AL.,                               Defendants, Appellants.                                 ____________________                                     ERRATA SHEET                                     ERRATA SHEET            The  opinion  of  this  Court  issued  on  February  3,  1997,  is        corrected as follows:            Page  19, delete  the last  sentence of the  opinion.   Replace it        with  the following:    Costs in  No.  96-1443 awarded  to the  School                                ______________________________________________        Committee and O'Neill.        _____________________                            United States Court of Appeals                                For the First Circuit                                 ____________________        No. 96-1443                                   EUGENE ANDERSON,                                Plaintiff, Appellant,                                          v.                           BOSTON SCHOOL COMMITTEE, ET AL.,                                Defendants, Appellees.                                 ____________________        No. 96-1578                                   EUGENE ANDERSON,                                 Plaintiff, Appellee,                                          v.                           BOSTON SCHOOL COMMITTEE, ET AL.,                               Defendants, Appellants.                                 ____________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. Joseph L. Tauro, U.S. District Judge]                                            ___________________                                 ____________________                                        Before                                 Selya, Circuit Judge,                                        _____________                            Coffin, Senior Circuit Judge,                                    ____________________                              and Lynch, Circuit Judge.                                         _____________                                 ____________________            Matthew  Cobb with  whom  Paul F.  Wood was  on  brief  for Eugene            _____________             _____________        Anderson.            Michael   C.  Donahue  with  whom  Malcolm  Medley  and  Kevin  S.            _____________________              _______________       _________        McDermott were on brief for Boston School Committee, et al.        _________                                 ____________________                                   February 3, 1997                                 ____________________                                         -3-               COFFIN, Senior  Circuit Judge.   These are  two consolidated                       _____________________          appeals.  One is  brought by plaintiff Eugene Anderson,  a Boston          public school teacher, contesting  directed verdicts on all seven          claims he brought  against his then principal, Thomas P. O'Neill,          Jr.,  and the  Boston  School  Committee.    In  the  other,  the          defendants appeal  from the district court's  denial of sanctions          and  an  attorney's fee  award.   In  the plaintiff's  appeal, we          affirm the judgment.   In the defendants' appeal, we  deem this a          case where we  feel we need  the reasoning of the  district court          and so remand.                          I.  Plaintiff's Appeal: The Merits               At  this  juncture, there  are  directed  verdicts on  seven          counts  which are  contested by  plaintiff1, as  well  as several          evidentiary rulings.  The litigation resulted in  over 100 docket          entries  from complaint to filing  the notice of  appeal and five          days  of jury  trial,  at  the end  of  which  the court  granted                                        ____________________               1  The counts and the affected defendant(s) are as follows:                    I.   Racial       discrimination       (equal                    protection),        42 U.S.C.  1983,  against                    O'Neill.                    III.  Racial  discrimination,  Title VII,  42                              U.S.C.  2000e et  seq., 1964  Civil                              Rights Act, against the School                              Committee.                    IV.   Racial discrimination, Mass. Gen.  Laws ch. 151B,                              against the School Committee.                    V.   Massachusetts  Civil  Rights Act,  Mass.                              Gen.   Laws   ch.  12,    11(H),(I)                    against        O'Neill.                    VI.  Libel and Slander, against O'Neill and                              the School Committee.                    VIII.Malicious Prosecution, against O'Neill.                    IX.  Intentional   Infliction  of   Emotional                              Distress, against O'Neill.                                          -3-          defendants' motions  for directed verdict.   We have meticulously          reviewed both the  transcript and  the exhibits.   The smoke  now          dissipated,  we are compelled to conclude that there is no longer          any discernible fire.    In view  of  the fact  that  such  ample          opportunity was afforded below to  pursue all avenues in  support          of the claims, we do not feel it incumbent on us to replay all of          the  evidence.  We shall content ourselves with a capsule summary          of  events and  a brief  consideration of  the viability  of each          claim as of the end of the evidence.               Factual Background.  Plaintiff, a black person,2 had been  a               __________________          public school teacher  for ten years  when, in  1989, he drew  an          assignment  as an  art  teacher to  the Solomon  Lewenberg Middle          School  in Mattapan, of which  O'Neill was the  principal.  There          was  an obvious  miscommunication, for  when  plaintiff appeared,          O'Neill felt that there  was no vacancy because another  teacher,          Molloy, a white person, had already filled it.  He sent plaintiff          back  twice, but plaintiff finally  was placed in  the school, in          addition  to Molloy,  and  given an  adequate  room, only  to  be          reassigned to a less  satisfactory room shortly after.3   He also          had trouble obtaining adequate art  supplies.  Soon after arrival          at  the school,  plaintiff  was asked  to  attend an  orientation          meeting;  when he arrived, O'Neill accused him of breaking a lock                                        ____________________               2    The  parties use  both the  terms "black"  and "African          American;" we will use "black" here for the sake of ease.                  3   The room  had no  storage closet, but  did have  an open          storage area.  It  was large, well-lighted by windows,  and had a          wall length blackboard.                                         -4-          at the art room.  In fact, plaintiff said, there was a door hinge          without any lock on it.  Apparently there were no consequences to          this incident.               Later in September  and in October,  O'Neill visited two  of          plaintiff's  art  classes  for  45 and  55  minutes  and prepared          evaluations of  his teaching.   Plaintiff was criticized  for his          lesson planning, classroom management, and maintaining a learning          environment, but was given satisfactory ratings for other factors          such as use of materials, treatment of students, and professional          cooperation   Plaintiff responded vigorously to both evaluations.               O'Neill was on leave during the 1990-1991 school year during          which time  Anderson had  one satisfactory evaluation  by another          superior.   In September of  1991, when O'Neill  had returned, he          summoned  plaintiff to  a formal  hearing concerning  an incident          when Anderson appeared at  school, allegedly with alcohol on  his          breath, detected  by the assistant principal,  Philogene, a black          person,  by another superior, Giacalone, and by others.  For this          he was given  a warning.  Later, in December  of 1991 and January          of  1992,  O'Neill  issued  two  more  evaluations,  giving  many          "unsatisfactory"  ratings and noting that students in plaintiff's          class  were  using  foul  language, playing  cards,  and  reading          comics.               Finally,  on January 24,  1992, O'Neill  was visited  in his          office by three  black girl  students who wanted  to talk to  him          about Anderson's behavior.  Two of them complained that plaintiff          had made sexual advances  to them by touching them  and by making                                         -5-          inappropriate remarks.   The third stated  that she had  observed          such conduct.  They also said that he had made unwanted telephone          calls to them at home.  O'Neill then consulted with the office of          the  East  Zone  Superintendent  of the  Boston  Public  Schools,          Clifford B. Janey, the city's General Counsel, and the Department          of Safety.  Janey, a black person, in turn  instructed O'Neill to          conduct  a full  investigation.   This  was undertaken,  although          there is no evidence detailing how  it began, how the police were          involved, or what steps were taken.  In early February, plaintiff          was relieved of  his duties and  transferred pending hearing  and          resolution.   A criminal complaint  was later filed  after a show          cause hearing.  A bench trial in the spring of 1993 resulted in a          judgment of guilty, but  later a jury trial in  December resulted          in a not guilty verdict.               This suit was filed shortly thereafter.               Analysis:                ________                    Racial discrimination. We first consider  the claims of                    _____________________          racial discrimination, which are embraced  by Counts I (42 U.S.C.           1983), II  (42 U.S.C.  2000e et  seq.), and IV (Mass.  Gen. Laws          ch. 151B).  The striking  fact about this case is that  after all          of the discovery  and five days of  trial, no evidence  of either          pretext or  racially motivated  discrimination was  presented for          jury consideration.   No  conversations evidencing  racial animus          were presented,  nor any instances of  unexplained more favorable          treatment of similarly  situated whites.   There was no  evidence          that the accusations of  lock breaking or of appearing  at school                                         -6-          under the influence  of alcohol were  racially motivated or  even          initiated by  Principal O'Neill.   As  for the  evaluations, they          could possibly be viewed by a jury as  stemming from too rigorous          a sense of  management, order,  and discipline, but  there is  no          racial  innuendo in  O'Neill's extensive  notations, discussions,          and suggestions for improvement.               Indeed, plaintiff acknowledges all this in  his motion for a          new  trial, where, in arguing  that the court  erred in excluding          evidence of the subsequent in-house handling of sexual harassment          claims  against  two  white  school employees,  he  argued:  "The          admission of  this evidence would  have provided the  'race' that          the  Court  was looking  for at  Directed  Verdict."   Unless the          exclusion  of this evidence was  reversible error, the charges of          racial  discrimination  must  be  held  not  to be  supported  by          evidence sufficient to reach a jury.               The  evidence  proffered  was  that, six  months  after  the          complaints   against  plaintiff,   two  white   Lewenberg  School          employees were accused of inappropriate sexual  conduct involving          female  students.  (A custodian was accused of kissing a student,          and a   shop  teacher  was accused  of telling  a student,  found          hiding  under  a  stairway, that  she  would  have  to "kiss  the          teacher" before she  would be let out.)   In both instances,  the          complaints  were handled  without involving  the police,  through          meetings  with  the  students, the  employees,  a  parent,  and a          guardian.  Plaintiff argues that O'Neill's failure to call in the          police and to require signed statements, and his personal meeting                                         -7-          with the students  and parents contrasts  sharply with what  took          place after the complaints were lodged against plaintiff.               Plaintiff faces the  considerable hurdle of establishing  an          abuse of  discretion  by  the district  court  in  excluding  the          evidence.   That court's  basic determination was  that plaintiff          had not carried  his burden  of showing that  the white  employee          cases were "similarly situated" to that of plaintiff, in order to          lay a  basis for the  admission of  the evidence.   In the  first          place there is no evidence that there was any precise policy that          mandated a specific course of action that in practice was applied          differently  to whites and blacks.  Certainly the manner in which          O'Neill  sought and  followed  guidance in  following  up on  the          complaints  against plaintiff does not suggest any predisposition          to  treat plaintiff any differently from anyone else found in his          predicament.               But,  most pertinently,  a simultaneous  complaint by  three          female  students  involving  touching,  suggestive  remarks,  and          observation  of  other  such  conduct,  together   with  unwanted          telephone  calls at  home, would seem  to involve  a demonstrably          different order  of magnitude  than the solitary  charges against          the two white employees.  See Perkins v. Brigham & Women's Hosp.,                                    ___ _______    _______________________          78  F.3d  747,  751 (1st  Cir.  1996).    Moreover,  there is  no          indication  that  any  changes   in  approach  had  been  invoked          subsequent  to the  January  complaints.   We  conclude that  the          district court did  not exceed  its discretion  in excluding  the          evidence.                                                          -8-               Libel  and Slander.   Plaintiff relies  heavily on  the four               __________________          performance evaluations made by  O'Neill to make out a  jury case          of  defamation.   But  these, as  well  as statements  concerning          plaintiff's  breaking  a lock  and  his  "erratic" behavior,  are          subject to the qualified privilege  of an employer or  supervisor          to   monitor,  discuss,  and  attempt  to  improve  subordinates'          performance.    Much of  what plaintiff  complains about  was not          contested.  Much was obviously the Principal's opinion as to what          was good or bad educational practice.   But none of it could have          been  found to have been knowingly false or in reckless disregard          of the truth.   Judd v. McCormack,  535 N.E.2d 1284, 1289  (Mass.                          _____   _________          App.  Ct. 1989) (reversing for  failure to direct  a verdict even          though  "tasteless  and  harsh"  language  was  used);  Bratt  v.                                                                  _____          International  Business Machines  Corp., 467  N.E.2d  126, 131-32          _______________________________________          (Mass. 1984).               Massachusetts Civil Rights Act.   Under Mass. Gen.  Laws ch.               ______________________________          12,  11(H)(I),  interference with rights of  another "by threats,          intimidation or coercion" gives rise to a cause of action.  These          predicate words have been  sternly construed by the Massachusetts          Supreme  Judicial  Court.    "Threat"  involves  an  "intentional          exertion of pressure  to make another fearful . .  . of injury or          harm."  "Intimidation"  involves "putting in fear for the purpose          of compelling or deterring conduct."  And "coercion" involves the          "application to  another of such force, either physical or moral,          as to constrain him to do against his will something he would not                                         -9-          otherwise have done."  Planned Parenthood League of Massachusetts                                 __________________________________________          v. Blake, 631 N.E.2d 985, 990 (Mass. 1994).             _____               Nothing in the evidence remotely suggests pressures of these          magnitudes  being brought  to bear  on plaintiff.   Even  his own          self-serving  testimony  on cross  examination  that  one of  the          complainants against him, April  Allen, told him that O'Neill  in          talking with her twice  said that he had seen  plaintiff touching          her,  contrary to  her own  supposed belief,  falls far  short of          indicating any such pressure on her which could forcefully impact          on him.               Malicious  Prosecution.    Plaintiff  contends  that he  has               ______________________          fulfilled   the   two   threshold   requirements   of   malicious          prosecution: initiation of  criminal proceedings with  malice and          without probable  cause, and  termination of such  proceedings in          his favor.  He fails on both counts.  First, there is no evidence          of precisely how the criminal proceedings were initiated.  As the          Massachusetts Appeals  Court noted  in Ziemba v.  Fo'cs'le, Inc.,                                                 ______     ______________          475 N.E.2d  1223, 1226  (Mass. App.  Ct. 1985), even  the act  of          calling the police is not the equivalent of instituting  criminal          proceedings.  It may well be that such a decision was made by the          police themselves.               Equally   important,  the   fact  that   the  bench   trial,          unimpeached by any evidence of perjury by  defendant O'Neill (who          did not testify  at either  the show cause  hearing or the  bench          trial), or of subornation  of perjury, resulted in a  judgment of          guilty is  a complete bar to the action.  Della Jacova v. Widett,                                                    ____________    ______                                         -10-          244 N.E.2d 580, 582 (Mass. 1969).  It should not  be necessary to          add that  plaintiff's testimony  of an  alleged statement  by his          accuser April Allen concerning O'Neill's supposed statements that          he  had seen plaintiff lay hands on  her, may not be dignified as          evidence of subornation of perjury.               Intentional  Infliction of  Emotional Distress.   Again, the               ______________________________________________          Massachusetts  Supreme Judicial  Court has  sharply circumscribed          the reach of this tort.  In Sena v. Commonwealth, 629 N.E.2d 986,                                      ____    ____________          994  (Mass. 1994)  the court stated  that to  sustain a  claim of          intentional infliction of  emotional distress,  a plaintiff  must          show  1) that  the defendant  intended to  cause, or  should have          known  that his conduct would cause,  emotional distress; 2) that          the  defendant's conduct was extreme  and outrageous; 3) that the          defendant's conduct caused the  plaintiff's distress; and 4) that          the  plaintiff  suffered severe  distress.  Id.  (citing Agis  v.                                                      ___          ____          Howard Johnson Co.,  355 N.E.2d 315, 318 (Mass. 1976).   The Agis          __________________                                           ____          court  cited approvingly  such language  as "beyond  all possible          bounds  of  decency"  and  "utterly intolerable  in  a  civilized          community."   355 N.E.2d at 319.  However one may view any of the          actions attributable  to Principal O'Neill, one  could not fairly          apply any of these rubrics to them.                                         Evidentiary Issues.  Of  the three evidentiary issues argued               __________________          by  plaintiff,  we  have  already disposed  of  one,  the court's          exclusion of  the evidence  concerning the  handling  of the  sex          harassment complaints against the two white  employees.  A second          involves  the granting of defendant's motion in limine to exclude                                         -11-          April Allen's  statements about O'Neill's conversation  with her.          But,  as our above discussion reveals, the same testimony came in          on the cross examination of plaintiff.  We see no need to revisit          in any detail what was already exposed.                 The  last claim is  simply that the  court excluded evidence          that early in 1992  O'Neill called into his office  the proffered          witness,  a former male student,  and another who  was accused of          improper conduct and  made them sign statements he  had prepared.          Plaintiff  sees  this incident  as  evidence  of O'Neill's  modus          operandi.  But O'Neill is not alleged to have engaged in any such          conduct in this case;  his supposed statements to April  Allen of          what he  said he  saw are of  an obviously  different modus  than          calling a student into  his office and forcing  the signing of  a          previously prepared  written statement.  The  evidence would have          little relevance,  if any,  but would  have  been freighted  with          prejudice.  The court did not abuse its discretion.                         II.  Defendants' Appeal: Fees and Sanctions               Principal O'Neill  and the School Committee  appeal from the          court's  denial of their motions for sanctions under Fed. R. Civ.          P. 11 and 28 U.S.C.  1927 and for attorney's fees and costs under          42 U.S.C.  1988.               The procedural background is brief.  In their answers to the          complaint, in  early 1994,  appellants invoked violation  of Rule          11.  Nothing  transpired on  the sanctions front  until April  of          1995,  when  appellants  sent   counsel  for  Anderson  a  letter          protesting the allegations and serving notice that, if trial were                                         -12-          to take place, they would pursue their Rule 11 remedy.   The next          event  took place on February  27, 1996, shortly  after the court          had  directed the verdicts, when  appellants filed a  new Rule 11          motion.   This, however, was  filed without having  waited for 21          days after service before filing, as required by   c(1)(A) of the          rule.   It  was denied  on March  15 and on  March 18  an amended          motion, with additional allegations, was served;  it was filed on          April 16,  1996.  In mid-March  motions were filed under     1927          and  1988.   All  were  denied by  the  court without  hearing or          comment in late March and early April.               Appellants base their claims for sanctions on what they term          unfounded and  uninvestigated allegations of  race discrimination          on   the    part   of    O'Neill;    allegations   of    systemic          underrepresentation of  blacks in Lewenberg School and elsewhere,          together with discriminatory policies  and customs resulting from          reckless  indifference on  the part  of the  city and  the School          Committee; misleading and erroneous  damages evidence on the part          of Anderson; and allegations of  false accusations of alcohol and          drug abuse, coercion of young female students, and perjury on the          part of O'Neill.               Anderson  merely presents the same facts  in haec verba from          his main brief, reargues that the district  court was in error in          directing the  verdicts, contends  that he had  established prima          facie  cases on  every count,  and points  out that  he dismissed          claims for disparate impact and municipal (Monell) liability.  He                                                     ______          cited   no  cases.      He  dismisses   appellants'  motions   as                                         -13-          "incomprehensible, not timely, violating every 'safe harbor' rule          known, and, generally, . . . a waste of everybody's time."               The questions  which this background presented  to the court          involved  the procedural one of timeliness and undue delay of the          various  motions  and  the  substantive  ones  whether reasonable          inquiry  was made  by plaintiff's counsel, Ryan v.  Clemente, 901                                                     ____     ________          F.2d  177 (1st Cir. 1990),  and whether claims  were unfounded or          were  so revealed  as  the case  progressed.   The  motions  also          implicitly  involved the  allocation  of  responsibility, if  any          existed, between plaintiff  and his counsel.   The only  question          which  faces us  at this  juncture, however,  is whether  we have          enough basis to affirm, to modify, or to reverse.               We are  therefore  required  to focus  sharply  on  our  own          precedents  in order to  determine whether the  district court in          denying sanctions and fees  in this case should have  accompanied          those decisions with some  explanation.  We tread  very carefully          in this  area, for the district court is entitled not only to the          ordinary deference due the  trial judge, and additional deference          in the  entire area of sanctions, but  extraordinary deference in          denying sanctions.                 Appellants  make  the broad  argument,  based  on a  blanket          observation in Metrocorps,  Inc. v. Eastern  Mass. Junior Drum  &                         _________________    _____________________________          Bugle Corps Ass'n., 912 F.2d 1, 3 (1st Cir. 1990), that,  whether          __________________          or not sanctions are ordered or denied, reasons must be given, if          meaningful  review is to be  had.  In  Metrocorps, sanctions were                                                 __________          sought  because of  a party's  failure  to comply  with discovery                                         -14-          requirements.   Fed.  R.  Civ.  P.  37, however,  specifies  that          sanctions  may be  avoided only  if substantial  justification is          shown.  We held that "[t]he  clear language of the rule imposes a          duty on the  district court." Id.  at 2.   We also addressed  the                                        ___          alternative  ground for sanctions,  Rule 11, and  cited Morgan v.                                                                  ______          Massachusetts  General  Hospital, 901  F.2d  186,  195 (1st  Cir.          ________________________________          1990),  which  in turn  cited Carlucci  v. Piper  Aircraft Corp.,                                        ________     ______________________          Inc., 775 F.2d  1440, 1446-47  (11th Cir. 1985)  for the  general          ____          proposition  that a district court  must state reasons  so that a          meaningful review may be had.  We then went on to say, "[i]f this          is the  district court's  burden when  sanctions are  imposed, it          follows  naturally that  a  similar obligation  exists where,  as          here, sanctions are  requested by  one party, but  denied by  the          court."  901 F.2d at 195.                 But  Carlucci  itself  not only  addressed  the  unexplained                    ________          positive imposition of sanctions,  but a discovery sanction under          Fed. R. Civ. P. 37 limited to "reasonable expenses  caused by the          failure" to obey  an order.  Understandably,  the appellate court          felt it needed some  basis on which to review  the reasonableness          of  the amount.  Moreover, in Morgan, where the hospital's motion                                        ______          for  fees  had  been  denied  without  reasons,  we prefaced  our          analysis with the observation that "From the record before us, we          are unable to determine the basis of the district court's denial"          of the motion.  901 F.2d at 195.  We added  that the fee decision          "must  both be  explained and  be supported  by the  record." Id.                                                                        ___          These statements,  of course,  were sufficient to  have justified                                         -15-          our action  in requiring reasons, without resort  to the Carlucci                                                                   ________          blanket prescription.               Later, in  the same year,  in Figueroa-Ruiz v.  Alegria, 905                                             _____________     _______          F.2d  545, 549 (1st Cir. 1990), we  remanded a case in which Rule          11 sanctions had been denied, because we found the decision to           be capable of bearing a number of meanings.  We added:                                While  we do not hold that the district court must make               findings and give explanations every time a party seeks               sanctions under Rule 11, we do require a statement when               the reason for  the decision is not obvious or apparent               from the record.          We then cited, with a see, Morgan.                                ___  ______               Then  came Metrocorps, with  no reference  to Figueroa-Ruiz.                          __________                         _____________          Finally, in Witty  v. Dukakis, 3 F.3d 517  (1st Cir. 1993), where                      _____     _______          the  district court had, early on, denied a fee application under           1988  as   untimely,  and  later  denied   without  opinion  two          subsequent motions to revisit the issue, we said:               So long as a  district court's reason for  denying fees               or  monetary  sanctions   is  (1)  well   founded,  (2)               sufficient to the  stated end, and (3) apparent  on the               face  of  the record,  a  reviewing  tribunal will  not               insist on unnecessary punctilio. (Citing, among others,               Figueroa-Ruiz and Morgan, but  not Metrocorps.)  Id. at               _____________     ______           __________    ___               521.          We  observed  that it  was  "perfectly  clear that  the  district          court's  thinking had not changed" between the first and last two          decisions. Id.                     ___               From these precedents, we discern the continuing basic theme          that although the rationale for a  denial of a motion for fees or          sanctions under Rule 11,  1927, or   1988 should be unambiguously          communicated, the lack of explicit findings is not fatal where                                            -16-          the record itself, evidence or colloquy, clearly indicates one or          more sufficient  supporting reasons.   The  occasional statements          referring to  an inflexible requirement for  explicit findings in          every case do not reflect our present considered judgment.               Reflection reveals that appellate  review of denials of such          motions calls for somewhat more restraint than review of positive          actions  imposing  sanctions and  shifting fees.   In  the latter          event the  decision of the trial  court is a relatively  rare and          always  deliberate event.  In the former event, motions are often          perfunctorily made  and generally denied.  To  require in run-of-          the-mill cases, where it  is obvious that the conduct of  a party          and  his attorney was within  the bounds of  reason, decency, and          competence, that the trial court stop and frame specific findings          would be to add irresponsibly to its already considerable burden.               In  this case,  however,  a number  of  factors coalesce  to          convince us of the need for help from the district court.  In the          first place, we need its assessment of the weight of arguments as          to  untimeliness  and  undue delay  in  the  pursuit  of Rule  11          sanctions.    We are also  unable to ascertain without  such help          whether  "reasonable inquiry"  was made  of some  of the  charges          levied  by  plaintiff.    Should available  public  records  have          indicated an absence of  systemic recklessness and discrimination          in the Boston school system?  Were the alleged victims (Allen and          O'Connor) of  plaintiff's advances  interviewed?  Why  were they,          although present at  the courthouse, not  called as witnesses  by          plaintiff?    Similar questions  are raised  in  our minds  as to                                         -17-          Stutman, the  union representative, Philogene, who  initiated the          complaint  of  alcohol  abuse,  other teachers,  police  and  the          Department of Safety.   Were plaintiff's explanations  concerning          the missing tape consistent and credible?4               Finally, what  weight  should be  given,  if any,  to  prior          court-administered warnings  to counsel.   One was our  own case,          Cummings v. Hanson, 1995 U.S.App.Vol.LEXIS 36978 (December 1995),          _________   ______          in which we affirmed  sanctions against this plaintiff's attorney          for bringing a claim in the wrong forum and cautioned him against          repetition.    And  although  the   Massachusetts  Appeals  Court          decision in Doe  v. Nutter,  McClennen & Fish,  668 N.E.2d  1329,                      ___     _________________________          1331  (41 Mass. App. Ct. 1996),  affirming sanctions and awarding          double costs against  plaintiff's counsel in the instant case for          a frivolous appeal, was  issued subsequent to the actions  of the          district court  below in denying sanctions,  both a Massachusetts          Superior Court justice and a single  justice of the Massachusetts          Appeals   Court   had   previously   imposed   sanctions  against          plaintiff's attorney for filing suit against  defendants although          he was aware that he did not have a viable cause of action.               In  raising these  points,  we do  not  profess to  have  an          informed opinion.   Indeed, that is why  we feel it  necessary to          remand  the  case  so that  the  district  court  may review  its                                        ____________________               4    Anderson  claimed  at  one  point  to  possess  a  tape          recording of April Allen  telling him that O'Neill was  trying to          get him in trouble;  however, Anderson was unable to  produce the          tape, and indeed was inconsistent about the exact contents of the          tape  as well as  about the identities  of those for  whom he had          played it.                                         -18-          decisions on  the several motions for sanctions  and fees, assess          any  responsibility as  between plaintiff  and counsel,  and make          known to us its reasons for the actions taken.               In the appeal on  the merits (No. 96-1443), the  judgment is          affirmed.                 In the fee appeal  (No. 96-1578), we adopt the  procedure of          presently retaining  jurisdiction and  remanding to the  district          court for  the  limited purpose  of  revisiting the  motions  for          sanctions and fees.  Cf. United States v. Quinones, 26  F.3d 213,                               ___ _____________    ________          219 (1st Cir. 1994).                 The court  may either  (a) vacate  the judgment  and conduct          such  proceedings  as  it  deems  necessary  to  reach   a  final          conclusion or  (b)  reaffirm  the  judgment  previously  imposed,          filing  with  the  clerk  of  the  district   court  its  written          rationale.    The  court  may,  but  need  not,  request  written          submissions and/or argument from counsel and/or convene a hearing          for the purpose of deciding which course to pursue.               The  district court  shall notify  the clerk  of this  court          within  sixty days  of  the date  hereof as  to  which option  it          chooses.  In the meantime, we retain appellate jurisdiction.          It is so ordered.            _________________          Costs in No. 96-1443 awarded to the School Committee and O'Neill.          ________________________________________________________________                                         -19-
