Anderson v. Boston School Committee

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

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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.

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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.

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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

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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

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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

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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.

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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

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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,

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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

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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

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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

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"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

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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

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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

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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

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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.

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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.

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