United States Court of Appeals
For the First Circuit
No. 00-2475
RITA NETHERSOLE,
Plaintiff, Appellant,
v.
WILLIAM BULGER, ET AL.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Rya W. Zobel, U.S. District Judge]
Before
Boudin, Chief Judge,
Torruella, Circuit Judge,
and Cyr, Senior Circuit Judge.
Samuel L. Rodríguez, with whom Grayer & Dilday was on brief
for appellant.
Peter M. Michelson for appellees.
April 12, 2002
CYR, Senior Circuit Judge. Plaintiff Rita Nethersole
appeals from the district court judgment which dismissed her
section 1983 claims against her employer, the University of
Massachusetts ("UMass"), following her transfer to a new
administrative position. See 42 U.S.C. § 1983; infra note 3.
I
BACKGROUND
In 1995, UMass appointed Nethersole, an African-
American, as its state-wide associate vice-president for student
affairs. As such, she was responsible, among other things, for
promoting faculty/student diversity. During her early tenure,
a UMass credit card disappeared. Subsequently it was used,
without authorization, by a person whose identity remains
unknown, to purchase a laptop computer. The UMass police
launched an investigation.
Not long after the credit card fraud, UMass revised its
admissions policies (e.g., by heightening GPA requirements and
eliminating special admissions programs). Although the newly
appointed UMass President, William Bulger, voiced approval of
the revised policies, some minority faculty members reacted with
expressions of concern that minority-student recruitment and
admissions would be adversely affected. Nethersole conveyed
these concerns to her supervisor, Vice President Joseph Deck,
3
who warned her not to air her opinions. Later, Deck accused
Nethersole of leaking information to opponents of the new
admissions policies.
On April 1, 1996, Nethersole invited minority faculty
and staff to meet and "discuss relevant issues and concerns and
perhaps establish an action plan which will relate to our
collective needs." The meeting took place on April 11. The
following day, Nethersole transmitted an e-mail memorandum to
UMass Executive Vice-President James Julian, requesting that
UMass President Bulger meet with the minority faculty caucus to
discuss their concerns regarding, inter alia, the UMass
admissions and diversity policies.1 Later in April, UMass
1In pertinent part, the Nethersole memorandum stated:
The University Caucus of Color, a group of
faculty and staff of color, have requested a
meeting with the president and five
chancellors. We hope that this meeting
could be a conversation [in] which the
concerns of the community of color can be
detailed to the president and responded to
by the president and chancellors. Those
concerns include the issues of diversity
among the University leadership[,], . . .
University admission policies,
responsibility for diversity concerns . . .
within the President's Office, Affirmative
Action, the report of the Massachusetts
Association of Scholars, Ethnic Studies
programs, etc. I envision that this meeting
would take approximately two hours and
involve twenty-five campus representatives.
The Caucus would like to schedule the
4
informed Nethersole's counsel that it was considering whether to
terminate Nethersole's employment "for cause," ostensibly a
veiled reference to her suspected involvement in the November
1995 credit card fraud and related computer theft.
Thereafter, on September 26, 1996, UMass Vice-President
Stephen Lenhardt advised Nethersole in writing that she was to
be terminated, based on "credible evidence" derived through an
ongoing investigation by the UMass police, that she had been
involved in the November 1995 credit card fraud. 2 Lenhardt
informed Nethersole that the charges against her were to be
aired at a pretermination hearing, which was subsequently held
on October 4, 1996.
On November 22, 1996, Lenhardt sent Nethersole another
letter, advising that notwithstanding "numerous concerns over
the past months regarding [her] conduct," UMass was rescinding
its termination decision "at this time," and reassigning her to
its UMass-Boston campus as the Assistant Dean of Graduate
Studies, with no reduction in salary. (Emphasis added.) The
Lenhardt letter neither mentioned nor described the findings
meeting for the early part of the day.
2
The only "credible evidence" described in the Lenhardt
letter was the assertion that Nethersole had assured the UMass
police that though she did not steal the credit card, she knew
who did, yet refused to identify the culprit.
5
resulting from Nethersole’s pretermination hearing. Nethersole
regarded the announced transfer as a demotion.
In due course, Nethersole instituted the present action
against, inter alios, UMass and its Board of Trustees, as well
as Bulger, Julian, and Lenhardt, claiming that her November 1996
transfer to UMass-Boston constituted (i) retaliation for
exercising her First Amendment right to free speech, see U.S.
Const. amend. I, and (ii) a deprivation of her liberty or
reputational interest, without due process of law, see id.
amend. XIV. Additionally, Nethersole alleged that certain press
comments were defamatory, hence actionable under state law.
In due course, the district court dismissed all the
federal claims, pursuant to Federal Rule of Civil Procedure
12(b)(6). Finally, the state-law defamation claim was dismissed
due to lack of supplemental jurisdiction, see 28 U.S.C. §
1367(c)(3), and Nethersole appealed.
II
DISCUSSION
Nethersole contends that the amended complaint states
an actionable First Amendment violation, under section 1983, in
that it alleges retaliation for her exercise of free speech,
6
viz., the April 12, 1996, memorandum to James Julian. 3 She
points to the suspicious circumstance that, within weeks of her
memorandum, her attorney received notice that UMass was
considering whether to terminate her employment "for cause."
She reasons that notwithstanding the UMass attempt, some seven
months later, to predicate its termination decision upon her
alleged complicity in the November 1995 credit card fraud, the
temporal proximity alone provides a sufficient circumstantial
causal link between her exercise of free speech and the ensuing
transfer. We agree.
We review the Rule 12(b)(6) ruling de novo, accepting
all factual allegations in the complaint and drawing all
reasonable inferences in Nethersole's favor. See Alternative
Energy, Inc. v. St. Paul Fire and Marine Ins. Co., 267 F.3d 30,
33 (1st Cir. 2001). The dismissal is to be affirmed "only if,
under the facts alleged, [Nethersole] cannot recover on any
viable theory." Blackstone Realty LLC v. FDIC, 244 F.3d 193,
197 (1st Cir. 2001) (citation omitted).
3
See Kelley v. LaForce, 279 F.3d 129, 134 (1st Cir. 2002)
("Section 1983 provides a cause of action for . . . money
damages from a defendant who acted under color of state law to
deprive plaintiff of a right guaranteed by the Constitution or
by federal law."); Cont'l Cas. Co. v. Canadian Universal Ins.
Co., 924 F.2d 370, 377 (1st Cir. 1991) (observing that UMass is
a "state actor," hence subject to suit under § 1983).
7
Three inquiries must be undertaken in assessing whether
the challenged employment action contravened the First Amendment
right to freedom of speech: whether (i) the speech Nethersole
engaged in can be considered that of a public employee on a
matter of public concern, or merely related to matters primarily
of concern to employees (e.g., internal working conditions);
(ii) Nethersole's interest in speaking, as well as the public
interest, outweigh any legitimate governmental interest in the
efficient performance of its public function; and (iii) the
speech was either a motivating or substantial factor in the
adverse employment action. See Padilla-Garcia v. Guillermo
Rodriguez, 212 F.3d 69, 78 (1st Cir. 2000); see also O'Connor v.
Steeves, 994 F.2d 905, 911-13 (1st Cir. 1993).4 Unlike the first
two criteria, which often involve issues of law amenable to
resolution by the court, see Connick v. Myers, 461 U.S. 138, 148
n.7 (1983); Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968);
O’Connor, 994 F.2d at 912; Gorman-Bakos v. Cornell Coop.
Extension of Schenectady Cty., 252 F.3d 545, 557 (2d Cir. 2001),5
4
UMass does not contend that Nethersole did not adequately
allege that her transfer was sufficiently "adverse" to state an
actionable First Amendment retaliation claim.
5UMass argues on appeal that Nethersole’s April 1996 memo
was not "protected speech," as a matter of law, since it
contained simply a routine scheduling request for a meeting with
President Bulger, and although Nethersole and her caucus might
have engaged in protected speech at such a meeting, her memo did
8
the "causation" or "motivation" element normally presents a
factfinding responsibility for the jury. See O'Connor, 994 F.2d
at 913; Shands v. City of Kennett, 993 F.2d 1337, 1343 (8th Cir.
1993).
The district court dismissed the amended complaint due
to its failure sufficiently to allege that Nethersole's
opposition to the new UMass admissions policies was a motivating
factor in the later UMass decision to relieve her of her
position as the associate vice-president for student affairs
responsible for promoting faculty/student diversity. As the
rationale for its Rule 12(b)(6) dismissal, the district court
pointed to the seven-month lapse between the April memorandum
Nethersole transmitted to Julian and her ensuing transfer in
November.
In section 1983 cases asserting a First Amendment
claim, the plaintiff need only allege facts sufficient to
enable a reasonable inference that the employer retaliated, at
not address the substance of their "concerns." We disagree.
Given the context of the recent changes in the UMass admissions
policies, as well as Nethersole’s alleged vocal opposition to
the changes, the reference in the April 1996 memo to the
caucus’s "concerns" with faculty/student "diversity" arguably
implied continuing opposition to the new UMass policies, thereby
possibly implicating a matter of public concern. See supra note
1. We need not resolve the issue here. It suffices that, at
the Rule 12(b)(6) stage, the facts alleged in the Nethersole
complaint support a reasonable inference that she engaged in
constitutionally protected speech.
9
least in part, in response to constitutionally protected speech.
Once the plaintiff alleges — and thereafter proves — that such
retaliation was "a" motivating factor, the burden shifts to the
defendants to demonstrate, by a preponderance of the evidence,
that the adverse employment action would have obtained
regardless of the protected conduct engaged in by the plaintiff;
e.g., here, by reason of the suspicions relating to the November
1995 credit card fraud. See Mt. Healthy City Sch. Dist. Bd. of
Educ. v. Doyle, 429 U.S. 274, 287 (1977); Beattie v. Madison
Cty. Sch. Dist., 254 F.3d 595, 601 (5th Cir. 2001). The
allegations in the amended Nethersole complaint meet that
minimal pleading standard, entitling Nethersole to conduct
discovery regarding the section 1983 causation element.
First, we assess the April 1996 Nethersole memo in the
context of the events which allegedly preceded it, particularly
her discussions with Vice President Deck, and Deck's explicit
warning that Nethersole refrain from voicing publicly her
concerns regarding diversity. Further, Deck questioned
Nethersole’s loyalty as a team player, charging that she leaked
information to opponents of the new admissions policies
supported by incoming President Bulger.6 Thereafter, UMass
6
UMass contends on appeal that these allegations are
irrelevant to the retaliation claim since Deck was no longer
vice-president for academic affairs at the time Nethersole was
10
excluded Nethersole from all policymaking discussions relating
to the new admissions policies, even though faculty/student
diversity issues constituted a prime focus of her employment.
Second, although seven months passed between the April
memo and Nethersole's transfer, at the preliminary Rule 12(b)(6)
stage in the proceedings the temporal disparity does not compel
the conclusion, as a matter of law, that Nethersole’s diversity
concerns could not have played some role in the UMass decision
to replace her as associate vice-president for student affairs,
a position which specifically entailed responsibility for
diversity issues. Notwithstanding unsubstantiated accusations
that Nethersole was complicit in the computer theft, which
arguably would have made her unfit for any position at the
university — rather than a mere job transfer — UMass transferred
Nethersole from a position in which she was directly involved
with diversity policy to a more peripheral position outside the
president’s office. Thus, the thematic link between the
substance of Nethersole's speech and the particular corrective
transferred, thus could not have participated in the transfer
decision. We disagree. Although ultimately this may prove to
have been a valid reason to dismiss Deck as a party defendant,
it does not necessarily follow that discovery could not disclose
that Deck recorded or otherwise reported these encounters with
Nethersole to other UMass officials, and that any such reports
later motivated others to target Nethersole for investigation by
the UMass police and/or to demote her.
11
action taken by UMass diminishes the evidentiary significance of
the seven-month time lapse, especially since UMass noted in
November 1996 that its concerns with Nethersole had extended
"over the past months." (Emphasis added.)
Further, the Nethersole complaint alleged no
uninterrupted seven-month retaliatory lapse. Rather, it
asserted that, within a matter of weeks following Nethersole's
April 1996 memo, UMass announced that it was considering
terminating her employment. "[C]lose temporal proximity between
two events may give rise to an inference of causal connection."
Hodgens v. Gen. Dynamics Corp., 144 F.3d 151, 168 (1st Cir.
1998). Although the ostensible basis for the UMass announcement
related to the UMass police investigation into the November 1995
computer theft, Nethersole’s ongoing opposition to the new
admissions policies represents a potential intervening cause.
See Springer v. Seaman, 821 F.2d 871, 876 (1st Cir. 1987)
(noting that proximate causation issue in § 1983 action,
including viability of asserted superseding causes for
employment decision, normally generates jury issue). In
reviewing a Rule 12(b)(6) dismissal, we may neither ignore the
allegation of temporal proximity, nor presume that it is a mere
coincidence.
12
Finally, although UMass claims that its employment
action was motivated solely by Nethersole’s conduct in relation
to the computer theft investigation, the amended complaint
questions UMass’s credibility in this regard. UMass first
announced Nethersole's termination in September 1996, due to
"credible evidence" that she was involved in the computer theft.
Nevertheless, two months later, without releasing any findings
arrived at during her pretermination hearing, UMass implicitly
acknowledged that the evidence disclosed at the termination
hearing was insufficient to warrant termination, while vaguely
stating that it had "numerous concerns over the past months
regarding [Nethersole’s] conduct," and implicitly threatening
her with future termination (viz., "the University has decided
not to terminate you at this time") (emphasis added).
Among the inferences arguably suggested by these
allegations are the following: (i) UMass trumped up the credit
card fraud charges as a cover for its attempted First Amendment
retaliation; (ii) its lingering "concerns" included Nethersole’s
propensity to question the existing UMass diversity policies;
and (iii) the UMass threat, along with her transfer to a
position which no longer involved diversity matters, were
designed to chill future protected speech by Nethersole on these
matters. Absent an opportunity to conduct appropriate
13
discovery, however, the paper trail UMass created in documenting
the UMass police investigation, as well as its pretermination
decisionmaking process, remain within the control of UMass.
Given the facts alleged in the complaint, we
understand the district court's inclination to believe that the
strength of Nethersole's First Amendment claim is open to
considerable doubt, especially as concerns the causation
element. Nevertheless, a complaint need not set forth all
evidentiary facts, given that discovery proceedings may yet
prove fruitful. Thus, while appellees may well decide to submit
a summary judgment motion following further proceedings on
remand, at the present stage of the proceedings, the dismissal
for failure to state a claim was inappropriate.7
7
Nethersole also appeals from the district court order
disallowing the claim that she was deprived of a liberty
interest, without due process of law, due to the UMass decision
to transfer her to another position on account of the credit
card fraud charges, which she says were false. Although the
claim was properly dismissed for numerous other reasons, see,
e.g., Beitzell v. Jeffrey, 643 F.2d 870, 879 (1st Cir. 1981)
(noting that even where employer seeks to deprive plaintiff of
property or liberty interest, due process is satisfied where
plaintiff is accorded a hearing and an "opportunity to clear
[her] name"), we simply note that Nethersole did not allege that
UMass ever disseminated, to other persons, the September and
November 1996 letters in which it described the charges and the
purported grounds for her termination and/or job transfer. See
Hardemon v. City of Boston, 144 F.3d 24, 28 (1st Cir. 1998)
("Not only must there be a creation of false information by the
employer, there also must be a dissemination of that information
by the employer before there is a depreciation of an employee's
liberty interests. . . . The protection of liberty interests is
14
The district court order dismissing the First Amendment
claim in the amended complaint, and dismissing the state-law
claims for lack of supplemental jurisdiction, is hereby vacated
and the case is remanded for further proceedings on all such
claims, consistent with this opinion. The order dismissing the
due process claim in the amended complaint is affirmed. Costs
to appellant.
SO ORDERED.
[not] violated [] by the presence of adverse information in a
personnel file, standing alone . . . .") (emphasis added;
citation omitted; quotation omitted); Silva v. Worden, 130 F.3d
26, 32-33 (1st Cir. 1997) (same).
15