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,

amended by replacing the cover sheet with the attached.

is

[NOT FOR PUBLICATION]

[NOT FOR PUBLICATION]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

_________________________________

brief for appellant.

Harold Robertson, with whom Harmon & Robert

________________
________________

were on brief for appellant.

Rodney E. Gould, with
________________
Gould, P.A., were on
___________

whom Craig S. Harwood,

_________________

and Rubin, Hay

__________

brief for Arlington School Committee

and Sch

Administration, defendants-appellees.
Paul F. Kelley, with
______________
Coleman,
_______

were on

brief

whom Donald J. Siegel, and Segal, Roitman

________________
______________
for Massachusetts

Teachers Association

Arlington Education Association, appellees.

Americo A. Salini, Jr., on
______________________
individual named

members of

brief for Virginia Fuller, et al.,

the Arlington Education

Association

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[NOT FOR PUBLICATION]

[NOT FOR PUBLICATION]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

_________________________________

brief for appellant.

Harold Robertson, with whom Harmon & Robert

________________
________________

were on brief for appellant.

Rodney E. Gould, with
________________
Gould, P.A., were on
___________

whom Craig S. Harwood,

_________________

and Rubin, Hay

__________

brief for Arlington School Committee

and Sch

Administration, defendants-appellees.
Paul F. Kelley, with
______________
Coleman,
_______

were on

brief

whom Donald J. Siegel, and Segal, Roitman

________________
______________
for Massachusetts

Teachers Association

Arlington Education Association, appellees.

Americo A. Salini, Jr., on
______________________
individual named

members of

brief for Virginia Fuller, et al.,

the Arlington Education

Arlington Education Association, defendants-appellees.

____________________

____________________
_______________

Association

*Of the District of Massachusetts, sitting by designation.

BOWNES,
BOWNES,

Senior Circuit Judge.

Senior Circuit Judge.
_____________________

Plaintiff-appellant, Edmund

Storlazzi, was a high school teacher in the

school system.

He appeals from

Arlington, Massachuset

summary judgment for

three sets

defendants in three
first case, filed

cases, which

were consolidated for

trial.

on June 15, 1989, (Storlazzi I) named as defenda

_________

past and present members

of the Arlington School Committee,

past

present administrators of Arlington High School, and past and

pres

members

in t

of Arlington

Education Association.

case alleged the following:

plaintiff

was deprived

speech; breach

Committee;

a violation of 42 U.S.C.

of his

First Amendment

of the collective

Committee; breach

of

The complaint

1982

1983 beca

right to

freedom

bargaining agreement by

the Sch

settlement

agreement

by

the

Sch

breach of the duty of fair representation by the Arling

Education

Association;

defamation

and

intentional

infliction

emotional distress.
The second
plaintiff's

action,

motion to

prejudice,

which was
amend the

alleged:

that

filed

on

March 19,

first complaint was

plaintiff's

employment

1993,

af

denied with
was

termina

because he exercised his First Amendment right to freedom of speech

due

process

violation

termination hearing;

for failing

to

provide

violation of his rights

notice

and a

under the Massachuse

Civil Rights Act; intentional interference with his teaching contra

and intentional infliction
Storlazzi
_________
School

II were

of emotional distress.

named members

Administration,

and

of the
the

The defendants

School Committee,

Union

(Arlington

the H

Educat

Association).
Plaintiff filed
School

Committee,

Association.

his third
the

The complaint

Union

action on
and

alleged:

the

May 12,

1993, against

Massachusetts

the School Committee

Teache

failed

train the School Administration officials so as to prevent retaliat

action; breach of

the Collective Bargaining

Agreement by the

Sch

Committee; breach

of the duty of fair representation by the Union

the Massachusetts

Teachers' Association (state teachers'

union);

violation of the Massachusetts Civil Rights Act.

Plaintiff forwards three issues:
consolidated;

that

the

summary

that

the cases were

judgment was

improper

imprope
because

procedural defects; and there was no substantive basis for the summ
judgment.

After

carefully

examining

the

record,

we affirm

judgment of the district court.

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

Consolidation.
Consolidation.

question of

in

actions

involving

common

law or fact are pending before the court, it may

order a joint
issue

When

the

consolidated;

hearing or trial of any or

actions;
and

it

it
may

all the matters in

may

order

all

make

such

orders

the

actions

concerning

proceedings therein as may tend to avoid unnecessary costs or

delay.

There can be little doubt that

the three consolidated cases

within the plain language of the

of law and fact.

the

We note

district judge who took

should be

abuse of

They involve common questi

And the plaintiff has crisscrossed the defendants

three suits.

Storlazzi I
_________

Rule.

that

in the

first

hearing before

over the cases, counsel for the

plaintiff

agreed with the court at least twice that the three ca

tried together.*

discretion.

See 9
___

Our

standard of review on

Charles A. Wright and

this issue

Arthur R. Mill

Federal Practice and Procedure

_______________________________

2383

(1995).

Seguro de Servicio de Salud v. McAuto Sys.,

___________________________________________

1989), "[a] motion

the party

omitted).

for consolidation will

opposing it

There

has

no prejudice

pointed out

878 F.2d 5, 8

(1st C

usually be granted

can show 'demonstrable

been

As we

unl

prejudice.'" (citat

shown

here.

These

paradigm cases for consolidation.

Summary Judgment - Procedure

Summary Judgment - Procedure
____________________________

Plaintiff

objects

procedural grounds:

to

that

summary judgment; that no

that

summary judgment was

the

grant of

no motion had

summary

judgment

on th

been made by defendants

notice had been given by the district co

in the offing;

and that

plaintiff had

opportunity for discovery prior to the grant of summary judgment.

These claims require a careful examination of the record.

first conference with

counsel on May 12, 1994, the

1994 as the date for a hearing on

The court

also advised counsel

At

court set June

summary judgment as to Storlazzi

_________

that on

the same day

it would

____________________

*Counsel

in Storlazzi I told the court

_________

plaintiff on

the other

present at the hearing.

two cases.

that he did not represent

Counsel in

those cases

was

defendants' motions to dismiss Storlazzi II and III.

_________

At the hearing on June 2, the two

present.

and

counsel for the plaintiff

Attorney Cobb, who represented the plaintiff in Storlazzi

_________

III did most of the

arguing for the plaintiff.

that there was no discovery in cases

II and III.

He first sta

The court respon

by pointing out that in connection with Storlazzi I depositions of

_________

the

defendants had

been taken

and that

questions about plaintiff's discharge.

to

do?"

Attorney

"Monell."**
______

depositions, if

He

Cobb

never,

gave

however,

their

depositions inclu

She then asked, "What's

vague

told the

general

court

answer

what

invok

additio

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

he intended to file.

court's

question

undertake.

In short, plaintiff's counsel did not answer

as

to

what

further

discovery

he

intended

In light of the fact that Storlazzi II and III had been

_________

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

plaintiff's

claim that

he had

been deprived

of discovery

in th

cases has no merit.

We next consider the claim that

notice

that the court was

plaintiff did not receive

considering summary judgment.

that defendants did not formally move for summary judgment.

however, file motions to

and affidavits.

pro

It is t

They d

dismiss accompanied by deposition referen

This automatically triggered

summary judgment un

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

(c)
(c)

Motion for
Motion for

Judgment
Judgment

on the
on the

Pleadings.
Pleadings.

After

the

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.

on a

motion for judgment

on the pleadings,

If,

matters outside

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

the motion shall be
disposed of as
given

treated as one for summary

judgment and

provided in Rule 56, and all parties shall be

reasonable opportunity

to

present all

pertinent to such a motion by Rule 56.

material made

We assume that one who

brings an action in federal court

is famil

with the Federal Rules of Civil Procedure.

The plain

language of

the pleading may be

put

Rule 12(b)(6) that

materials outside

considered if not excluded by

plaintiff on notice

that the motion

the court

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 3

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.
year

had

complaint.

elapsed

since

Summary

plaintiffs

judgment did not

Moreover, over a

initially

filed their

"follow[] hard on

the

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

Moreover, the transcript of the June

the

district

court

was

thinking

in

2, 1994, hearing shows

terms

of

summary

judgm

disposition.

explanation

Most

of

the

hearing

was

devoted

to

the

judg

to plaintiff's counsel of why the pleadings alone did

suffice to make out a case.

A few examples make clear the message

judge was sending.

First, I am
pleadings,

obliged on

the

affidavits

summary judgment to
that

have

been

look to

the

filed,

the

depositions, answers to interrogatories, et cetera.

I

see in this

case -- correct

plaintiff has pled a

number

of

plaintiff's side.

-- is the

of accusations,

The defendants have come back with

and depositions attached.

those

I am wrong

host of things, a host

in his initial complaint.

affidavits

me if

And what

accusations,

And with respect to a

there's

silence

on

the

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

established

where there

is an

affidavit to

it.

words, the plaintiff

says in his complaint that

to the

were given

way students

In other
he objected

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

through the affidavits, say,

their depositions and

"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
there

tried to discern

was a causal -- when

that there was a

from what was

protected whether

the plaintiff made out his case,

causal connection between what he

said and

what

was done

connection

to him.

And one way

of establishing causal

is by showing, "I did this

at Time One, and then

they retaliated at Time Two."

With

respect

to

whole

host

of

Mr.

Storlazzi's

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

can't determine that he
then something
timing is

complained about X on this

followed.

That's --

not dispositive on

very helpful.

date and

although coincidence of

the issue

of causation,

it's

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.
these

And, as I have

cases come up with

said before, I can't in each of

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
all

the

performed
basis.

other

was singled out in some way different from

players

against

who

them, or

had
that

administrative
there

wasn't a

actions
rational

__________

So with

all

the

students,

respect to

administrative
about

administering
preliminary

all of the

actions

locking

final
of this

respond.

would

here

student

exams,
case, is

rational basis for having taken

then that

administrative decisions,

be sufficient,

and

about

transferring

lavatories,
my

that, if

about

understanding
they can

is

provide a

the positions that they did,

and

the plaintiff

has

to

__________

After

the

requirements,

court

briefly

discussed

counsel for the plaintiff

the

Mt.
Healthy
_____________

pointed out that Mt. Heal

________

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

The co

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

organ

the pleadings, setting forth chronologically the order of events.

court pointed

out that

temporal one."

"one way

The court stated

of proving

causal connection

explicitly that it wanted

this

terms of evaluating summary judgment."

Clearly

this was not

the district court

sponte summary judgment

______

that we condemned in Stella v. Town of Tewksbu

__________________________

Mass., 4 F.3d 53 (1st Cir.

_____

trial and were surveying

to

the type of sua

___

1993) (Both parties prepared to start j

prospective jurors when visiting

case, ordered defendants to move for summary judgment.

judge,

Plainti

____________________

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

objected

without

avail.

Three

days later

judge

issued

summ

judgment for defendants.).

Summary Judgment - Substantive

Summary Judgment - Substantive
______________________________

We

adopt the district

its

substantive summary

not

regurgitate

appropriate,

the

however,

court's extensive

judgment holding.****

district

to make

plaintiff relied entirely on

court's

a few

findings and rulings

We,

opinion.

general

therefore, w

We

remarks.

his pleadings to make out

think

First,

a prima fa
_____ __

case.

He

affidavits

did not respond directly to the

and references

to filed

asseverations supported

depositions made

by defendan

The law governing such a posture is clear.

In

our view, the plain

language of Rule

entry of summary judgment,

56(c) mandates the

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),
_______________________

held that the

upon "mere

nonmovant in the summary judgment context

may not r

allegations . . . but must produce evidence which would

admissible at trial to make out the requisite issue of material fac

This, plaintiff has utterly failed to do.

The observations

made in

Kaufman v. Puerto Rico Tel. Co.,

_________________________________

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

5. The plaintiffs argue that the

complaint

and affidavits

sworn statements in their

constitute

sufficient grounds

to

____________________

****The district court opinion is cited

Supp. 494 (D. Mass 1995).

as Storlazzi v. Bakey, 894

__________________

generate

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

suspect

motivations for

employee

dismissals.

Kercado-Melendez v. Aponte-Rogue,
___________________________________
calling for more specific
plaintiffs'

claim

however,

we

do

Rather,

for

any

circumstantial

not

to take

829

See, e.g.,
___________

F.2d at

264.

In

factual allegations to support the

the

reject

substantive

or direct

summary judgment
necessary

under

of constitutionally

Celotex/Anderson
________________
the

plaintiffs'

claim,

whether

evidence, the

upon

party against

whom

claim out

speculative, general allegations.

contention.
built

is sought must generate

the asserted

standard,

the specific facts

of the

realm of

The plaintiffs have failed

to do that in this case.

During the June 2 hearing there

and

plaintiff's counsel which could

temporal

causation.

proximity of

This

was discussion between the

be interpreted to

occurrences might

would appear

to run

be sufficient

counter to

co

mean that

to establ

the rule

in t

circuit.

In Kaufman
_______

we held

that the dismissal

of members

of

political party immediately after the opposition party took office

insufficient

U.S.

242

under Celotex and

_______

(1986),

Kaufman, 841
_______

to generate

F.2d at 1172.

We

Anderson v. Liberty Lobby, Inc.,

________________________________

genuine

issue

held to the

of material

same effect

Martinez v. Monroig, 963 F.2d 2, 5 (1st Cir. 1992).

___________________

fa

in Avil
____

See also Aceve

___ ____ _____

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

______________

The judgment of the district court is affirmed. Costs awarded

The judgment of the district court is affirmed. Costs awarded
_______________________________________________________________

appellees.
appellees.
__________