

  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                        [NOT FOR PUBLICATION]                                [NOT FOR PUBLICATION]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  &amp; Robertson                                                                              
were on brief for appellant.
    Rodney E.  Gould, with  whom Craig  S. Harwood,  and Rubin, Hay  &amp;                                                                              
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  &amp;                                                                              
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  &amp; Robertson                                                                              
were on brief for appellant.
    Rodney E.  Gould, with  whom Craig  S. Harwood,  and Rubin, Hay  &amp;                                                                              
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  &amp;                                                                              
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.                  
