Margaret FISHER, Plaintiff, Appellant, v. Walter FLYNN, Etc., Et Al., Defendants, Appellees, 598 F.2d 663 (1st Cir. 1979). · Go Syfert
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Margaret FISHER, Plaintiff, Appellant, v. Walter FLYNN, Etc., Et Al., Defendants, Appellees, 598 F.2d 663 (1st Cir. 1979). Cases Citing This Book View Copy Cite
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cited 4× by 4 distinct cases, last quoted 1988 · 3 courts · …complaints based on civil rights statutes must do more than state simple conclusions; they must at least outline the facts constituting the alleged violation. at p. 665 ✓
98 citation events (7 in the last 25 years) across 25 distinct courts.
Treatment trajectory · 1979 → 2026 · click a year to view as-of
1979 2002 2026
Top citers, strongest first. 50 distinct citers. How cited ↗
discussed Cited as authority (verbatim quote) Fiorino v. Turner
D. Mass. · 1979 · quote attribution · 1 verbatim quote · confidence high
complaints based on civil rights statutes must do more than state simple conclusions; they must at least outline the facts constituting the alleged violation.
cited Cited as authority (rule) 3137, LLC v. Town of Harwich
1st Cir. · 2025 · confidence medium
Nestor Colón, 964 F.2d at 39 (first citing Goldman v. Sears, Roebuck & Co., 607 F.2d 1014, 1019 (1st Cir. 1979); and then citing Fisher v. Flynn, 598 F.2d 663, 665 (1st Cir. 1979)).
cited Cited as authority (rule) Langley v. State of Rhode Island Department of Corrections
D.R.I. · 2024 · confidence medium
This bald assertion, it argues is not enough to “outline the facts constituting the alleged violation.” /isher v. Flynn, 598 F.2d 663, 665 (1st Cir. 1979).
cited Cited as authority (rule) Schultz v. Kelly
D. Mass. · 2002 · confidence medium
See Romero-Barcelo v. Hernandez-Agosto, 75 F.3d 23 , 28 n. 2 (1st Cir.1996); Fisher v. Flynn, 598 F.2d 663, 665 (1st Cir.1979).
discussed Cited as authority (rule) Carmona Ríos v. Aramark Corp.
D.P.R. · 2001 · confidence medium
“Complaints based on civil rights statutes must do more than state simple conclusions; they must at least outline facts constituting the alleged violation.” Fisher v. Flynn, 598 F.2d 663, 665 (1st Cir.1979) (emphasis added).
discussed Cited as authority (rule) Vizcarrondo v. Board of Trustees of the University of Puerto Rico
D.P.R. · 2001 · confidence medium
“Complaints based on civil rights statutes must do more than state simple conclusions; they must at least outline facts constituting the alleged violation.” Fisher v. Flynn, 598 F.2d 663, 665 (1st Cir.1979) (emphasis added).
discussed Cited as authority (rule) Roberson v. Bowie State University
D. Maryland · 1995 · confidence medium
Contractors Ass’n v. Pennsylvania, 458 U.S. 375, 391 , 102 S.Ct. 3141 , 73 L.Ed.2d 835 (1992) (holding that section 1981 can be violated only by purposeful discrimination); Fisher v. Flynn, 598 F.2d 663, 665 (1st Cir.1979) (“Complaints based on civil rights statutes must do more than state simple conclusions; they must at least outline the facts constituting the alleged violation.”).
cited Cited as authority (rule) Pakizegi v. First Nat. Bank of Boston
D. Mass. · 1993 · confidence medium
Reynolds Tobacco Co., 896 F.2d 5, 10 (1st Cir.1990); see also Gray v. New England Telephone & Telegraph Co., 792 F.2d 251, 255 (1st Cir.1986); Fisher v. Flynn, 598 F.2d 663, 665 (1st Cir.1979). 3.
cited Cited as authority (rule) Alexander v. Fujitsu Business Communication Systems, Inc.
D.N.H. · 1993 · confidence medium
Fisher v. Flynn, 598 F.2d 663, 665 (1st Cir.1979) (in the context of Title VII).
discussed Cited as authority (rule) Michael B. Forte v. Janis Sullivan
1st Cir. · 1992 · confidence medium
The amendment did nothing to remedy the factual deficiency identified by Sullivan in her motion to dismiss. 4 The district court thus could have dismissed with prejudice for failure to state a claim, for even pro se "[c]omplaints based on civil rights statutes must do more than state simple conclusions; they must at least outline the facts constituting the alleged violation." Pavilonis v. King, 626 F.2d at 1078 (quoting Fisher v. Flynn, 598 F.2d 663, 665 (1st Cir. 1979)).
cited Cited as authority (rule) Nestor Colon Medina & Sucesores, Inc. v. Patria G. Custodio
1st Cir. · 1992 · confidence medium
See Goldman v. Sears, Roebuck & Co., 607 F.2d 1014, 1019 (1st Cir. 1979); Fisher v. Flynn, 598 F.2d 663, 665 (1st Cir.1979).
discussed Cited as authority (rule) Cuddy v. City of Boston
D. Mass. · 1991 · confidence medium
Dartmouth Review, 889 F.2d at 16 , citing Fisher v. Flynn, 598 F.2d 663, 665 (1st Cir.1979); Slotnick v. Staviskey, 560 F.2d 31, 33 (1st Cir.1977), cert. denied, 434 U.S. 1077 , 98 S.Ct. 1268 , 55 L.Ed.2d 783 (1978).
discussed Cited as authority (rule) Russell v. District of Columbia
D.D.C. · 1990 · confidence medium
In Conley v. Gibson, 355 U.S. 41, 47 , 78 S.Ct. 99, 102 , 2 L.Ed.2d 80 (1957) the Supreme Court held that a complaint must provide the defendants with “fair notice of what the plaintiffs claim is and the grounds upon which it rests.” The federal courts of appeals have expounded upon this standard in civil rights cases, see e.g., Albert v. Carovano, 824 F.2d 1333, 1341 (2d Cir.1987) (requiring more than “mere naked assertions” of discriminatory intent); Fisher v. Flynn, 598 F.2d 663, 665 (1st Cir.1979) (requiring more than simple conclusions); however, the primary requirement remains th…
discussed Cited as authority (rule) Antonia Lara v. Judge Thomas Fay
1st Cir. · 1990 · confidence medium
We find no error and affirm. 7 The appellant's complaint, like the filings here and in the district court, is long on conclusions, argument and invective, and short on a sufficient substantive nexus between her alleged injuries and a viable federal claim, Fisher v. Flynn, 598 F.2d 663, 665 (1st Cir.1979), even less one that satisfies the liberal pleading requirements for pro se plaintiffs in Sec. 1983 actions.
discussed Cited as authority (rule) The Dartmouth Review, on Behalf of Its Officers, Staff and Subscribers v. Dartmouth College
1st Cir. · 1989 · confidence medium
See, e.g., id.; Fisher v. Flynn, 598 F.2d 663, 665 (1st Cir.1979) (Title VII; § 1983); Slotnick v. Staviskey, 560 F.2d 31, 33 (1st Cir.1977) (§ 1983), cert. denied, 434 U.S. 1077 , 98 S.Ct. 1268 , 55 L.Ed.2d 783 (1978); see also Johnson v. General Elec., 840 F.2d 132, 138 (1st Cir.1988) (Title VII).
discussed Cited as authority (rule) Arnold v. Board of Education of Escambia County
11th Cir. · 1989 · confidence medium
See Hobson v. Wilson, 737 F.2d 1 (D.C.Cir.1984), cert. denied, 470 U.S. 1084 , 105 S.Ct. 1843 , 85 L.Ed.2d 142 (1985); Hurney v. Carver, 602 F.2d 993 (1st Cir.1979); Fisher v. Flynn, 598 F.2d 663, 665 (1st Cir.1979); Smith v. International Longshoremen’s Ass'n, 592 F.2d 225 , 226 (4th Cir.1979); Hall v. Pennsylvania State Police, 570 F.2d 86, 89 (3rd Cir.1978); Uston v. Airport Casino, Inc., 564 F.2d 1216, 1217 (9th Cir.1977); Nickens v. White, 536 F.2d 802, 803 (8th Cir.1976); Coopersmith v. Supreme Court, 465 F.2d 993, 994 (10th Cir.1972); Place v. Shepherd, 446 F.2d 1239, 1244 (6th Cir.19…
discussed Cited as authority (rule) Arnold v. Board Of Education Of Escambia County
11th Cir. · 1989 · confidence medium
See Hobson v. Wilson, 737 F.2d 1 (D.C.Cir.1984), cert. denied, 470 U.S. 1084 , 105 S.Ct. 1843 , 85 L.Ed.2d 142 (1985); Hurney v. Carver, 602 F.2d 993 (1st Cir.1979); Fisher v. Flynn, 598 F.2d 663, 665 (1st Cir.1979); Smith v. International Longshoremen's Ass'n, 592 F.2d 225 , 226 (4th Cir.1979); Hall v. Pennsylvania State Police, 570 F.2d 86, 89 (3rd Cir.1978); Uston v. Airport Casino, Inc., 564 F.2d 1216, 1217 (9th Cir.1977); Nickens v. White, 536 F.2d 802, 803 (8th Cir.1976); Coopersmith v. Supreme Court, 465 F.2d 993, 994 (10th Cir.1972); Place v. Shepherd, 446 F.2d 1239, 1244 (6th Cir.1971…
cited Cited as authority (rule) McDaniel v. Terry
4th Cir. · 1989 · confidence medium
Fisher v. Flynn, 598 F.2d 663, 665-66 (1st Cir.1979).
discussed Cited as authority (rule) Dartmouth Review v. Dartmouth College
D.N.H. · 1989 · confidence medium
“Plaintiffs cannot be merely conclusory regarding the characterization of the defendant's] motives; a subjective characterization of those motives will not suffice.” Johnson, supra, 840 F.2d at 138 (citing Fisher v. Flynn, 598 F.2d 663, 665 (1st Cir.1979)).
discussed Cited as authority (rule) Janet A. Beaulieu v. United States of America, Internal Revenue Service
1st Cir. · 1989 · signal: cf. · confidence medium
Co., 360 F.2d 896 , 901-02 (7th Cir.1966) (complaint's allegation of a violation of § 2 of Clayton Act insufficient to state a claim); cf. Fisher v. Flynn, 598 F.2d 663, 665 (1st Cir.1979) (to state a claim, complaint must do more than allege a violation of civil rights statute).
discussed Cited as authority (rule) Hathaway v. Stone
D. Mass. · 1988 · confidence medium
As the Court of Appeals for the First Circuit has noted, “[C]omplaints based on civil rights statutes must do more than state simple conclusions; they must at least outline the facts constituting the alleged violations.” Goldman v. Sears, Roebuck & Co., 607 F.2d 1014, 1018 (1st Cir.1979); Fisher v. Flynn, 598 F.2d 663, 665 (1st Cir.1979).
discussed Cited as authority (rule) Earl Johnson v. General Electric
1st Cir. · 1988 · confidence medium
“Complaints based on civil rights statutes must do more than state simple conclusions; they must at least outline the facts constituting the alleged violation.” Fisher v. Flynn, 598 F.2d 663, 665 (1st Cir.1979).
discussed Cited as authority (rule) In Re Elscint, Ltd. Securities Litigation
D. Mass. · 1987 · confidence medium
In specific circumstances, courts have required complaints to “do more than state simple conclusions; they must at least outline the facts constituting the alleged violation.” Fisher v. Flynn, 598 F.2d 663, 665 (1st Cir.1979) (civil rights complaint).
discussed Cited as authority (rule) Boyd v. James S. Hayes Living Health Care Agency, Inc.
W.D. Tenn. · 1987 · confidence medium
See Vinson, 106 S.Ct. at 2405 ; Henson v. City of Dundee, 682 F.2d 897, 908-09 (11th Cir.1983); Bundy v. Jackson, 641 F.2d 934 (D.C.Cir.1981); Fisher v. Flynn, 598 F.2d 663, 665 (1st Cir.1979). establish a prima facie case of a pro quo theory, plaintiff must establih that (1) she belongs to a protected group; (2) she was subjected to unwelcome sex harassment; (3) the harassment was based on sex; and (4) the employee’s submission to the unwelcome harassment was an express or implied condition for receiving job benefits or the employee’s refusal to submit resulted in a tangible job detriment…
discussed Cited as authority (rule) Simonne Elwood and Cheryl A. Pimental v. Ronald Pina and Lucia Cardoso
1st Cir. · 1987 · confidence medium
See De Choudens v. Government Development Bank, 801 F.2d 5, 7 (1st Cir.1986), cert. pending, (1987) (first amendment-political association); Brasslett v. Cota, 761 F.2d 827, 839 (1st Cir.1985) (unlawful retaliation in the exercise of free speech rights); Loeb v. Textron, Inc., 600 F.2d 1003, 1019-20 (1st Cir.1979) (claim for reinstatement for unlawful discharge under Age Discrimination in Employment Act); Fisher v. Flynn, 598 F.2d 663, 665 (1st Cir.1979) (sex discrimination under Title VII of the Civil Rights Act).
cited Cited as authority (rule) Reyes v. Supervisor of Drug Enforcement Administration
D.P.R. · 1986 · confidence medium
Fisher v. Flynn, 598 F.2d 663, 665 (1st Cir.1979).
cited Cited as authority (rule) Bertram LEFKOWITZ, Etc., Plaintiff, Appellant, v. SMITH BARNEY, HARRIS UPHAM & CO., INC., and Henry N. Fishburne, Defendants, Appellees
1st Cir. · 1986 · confidence medium
Fisher v. Flynn, 598 F.2d 663, 665-66 (1st Cir.1979). 3.
discussed Cited as authority (rule) Lipsett v. University of Puerto Rico (2×)
D.P.R. · 1986 · confidence medium
Co., 500 F.Supp. 1170 (D.N.Y.1980) declined to follow Meiri v. Dacon, 759 F.2d 989 (2d Cir. 1985), or the opposing party’s own contradictions in the record, Reisner v. General Motors Corp., 511 F.Supp. 1167 (D.N.Y.1981) aff'd 671 F.2d 91 , cert. denied, 459 U.S. 858 , 103 S.Ct. 130 , 74 L.Ed.2d 112 (1982), or the opposing party’s subjective characterization of the alleged discriminator’s motives or intent, Fisher v. Flynn, 598 F.2d 663, 665 (1st Cir.1979).
discussed Cited as authority (rule) DesRoches v. United States Postal Service
D.N.H. · 1986 · confidence medium
As we have said, moreover, ‘[c]omplaints based on civil rights statutes must do more than state simple conclusions; they must at least outline the facts constituting the alleged violation.’ Fisher v. Flynn, 598 F.2d 663, 665 (1st Cir.1979); accord, Martin v. New York Department of Mental Hygiene, 588 F.2d 371 , 372 (2d Cir.1978); cf. Coates v. Illinois State Board of Education, 559 F.2d 445, 447, 449 (7th Cir.1977).
discussed Cited as authority (rule) Christensen v. Lawrence F. Quigley Memorial Hospital
D. Mass. · 1985 · confidence medium
Dewey v. University of New Hampshire, 694 F.2d 1, 3 (1st Cir.1982), cert. denied, 461 U.S. 944 , 103 S.Ct. 2121 , 77 L.Ed.2d 1301 (1983); Fisher v. Flynn, 598 F.2d 663, 665 (1st Cir.1979); Kadar Corp. v. Milbury, 549 F.2d 230, 233 (1st Cir.1977).
discussed Cited as authority (rule) Gutierrez v. City of Chicago
N.D. Ill. · 1985 · confidence medium
See, e.g., Dewey v. University of New Hampshire, 694 F.2d 1 (1st Cir.1982), cert. denied, 461 U.S. 944 , 103 S.Ct. 2121 , 77 L.Ed.2d 1301 (1983); Fisher v. Flynn, 598 F.2d 663, 665 (1st Cir.1979); Cohen v. Illinois Institute of Technology, 581 F.2d 658, 663 (7th Cir.1978), cert. denied, 439 U.S. 1135 , 99 S.Ct. 1058 , 59 L.Ed.2d 97 (1979).
discussed Cited as authority (rule) Papas v. Bertrum
D. Mass. · 1985 · confidence medium
The case as to the other defendants should be dismissed a) for failure to state a claim on the basis of which relief may be granted because the complaint contains only conclusory allegations and fails to allege any facts, which if proved, would afford a basis for the granting of relief, Fisher v. Flynn, 598 F.2d 663, 665 (1st Cir.1979); and b) the case as against the defendant referred to in paragraph 3 should also be dismissed as being both frivolous and malicious within the meaning of 28 U.S.C. § 1915 (d).
cited Cited as authority (rule) Wolfson v. Sriberg (In Re Sriberg)
Bankr. D. Mass. · 1984 · confidence medium
Sandler v. Eastern Airlines, Inc., 649 F.2d 19, 20 (1st Cir.1981); Fisher v. Flynn, 598 F.2d 663, 665 (1st Cir.1979); Black v. Brown University, 555 F.Supp. 880, 886 (D.R.I.1983).
discussed Cited as authority (rule) Julius Hobson v. Jerry Wilson, Thomas J. Herlihy, Jack Acree, Christopher Scrapper, Edward Jagen, John Mahaney & George Suter, John B. Layton Julius Hobson v. Jerry Wilson Charles D. Brennan, Courtland J. Jones, Gerald T. Grimaldi, George C. Moore & Gerould W. Pangburn, Julius Hobson v. Jerry Wilson District of Columbia, a Municipal Corporation, Julius Hobson Washington Area Women Strike for Peace v. Jerry Wilson Julius Hobson Abe Bloom, Arthur I. Waskow, Tina Hobson, David Eaton, Sammie A. Abbott, Richard P. Pollock, Reginald Booker, Washington Peace Center and Washington Area Women Strike for Peace v. Jerry Wilson
D.C. Cir. · 1984 · confidence medium
The majority's reference to a firm application of the civil procedure rules no doubt was in part intended as a response to this concern 87 See Hurney v. Carver, 602 F.2d 993, 995 (1st Cir.1979) (courts need not "conjure up" unpled facts to support conclusory allegations); Fisher v. Flynn, 598 F.2d 663, 665 (1st Cir.1979) (civil rights complaint must do more than state simple conclusions); Hall v. Pennsylvania State Police, 570 F.2d 86, 89 (3d Cir.1978) (complaint must be sufficiently precise to give notice of claims asserted); Smith v. International Longshoremen's Ass'n, 592 F.2d 225 , 226 (4t…
discussed Cited as authority (rule) Hobson v. Wilson
D.C. Cir. · 1984 · confidence medium
See Hurney v. Carver, 602 F.2d 993, 995 (1st Cir.1979) (courts need not "conjure up" unpled facts to support conclusory allegations); Fisher v. Flynn, 598 F.2d 663, 665 (1st Cir.1979) (civil rights complaint must do more than state simple conclusions); Hall v. Pennsylvania State Police, 570 F.2d 86, 89 (3d Cir.1978) (complaint must be sufficiently precise to give notice of claims asserted); Smith v. International Longshoremen’s Ass’n, 592 F.2d 225, 226 (4th Cir.1979) (Federal Rules of Civil Procedure, Rules 8(a) and (e), require definiteness in complaint); Wetherington v. Phillips, 526 F.2…
discussed Cited as authority (rule) Chase v. Quick
D.R.I. · 1984 · confidence medium
See O’Shea v. Littleton, 414 U.S. 488, 497 , 94 S.Ct. 669, 676-77 , 38 L.Ed.2d 674 (1974); Fisher v. Flynn, 598 F.2d 663, 665 (1st Cir.1979) (Title VII); Black v. Brown University, 555 F.Supp. 880, 886 (D.R.I.1983).
examined Cited as authority (rule) Velazquez v. Chardon (3×) also: Cited "see"
D.P.R. · 1983 · confidence medium
As we have said, moreover, ‘(c)omplaints based on civil rights statutes must do more than state simple conclusions; they must at least outline facts constituting the alleged violation. ’ *478 Fisher v. Flynn, 598 F.2d 663, 665 (1st Cir.1979); accord, Martin v. New York Department of Mental Hygiene, 588 F.2d 371 , 372 (2d Cir.1978); cf. Coates v. Illinois State Board of Education, 559 .
cited Cited as authority (rule) White v. Vathally
D. Mass. · 1983 · confidence medium
Fisher v. Flynn, 598 F.2d 663 *1433 (1st Cir.1979).
discussed Cited as authority (rule) Linder v. Berge
D.R.I. · 1983 · confidence medium
O’Shea v. Littleton, 414 U.S. 488, 497 , 94 S.Ct. 669, 676 , 38 L.Ed.2d 674 (1974) ( 42 U.S.C. § 1981 ); Sandler v. Eastern Airlines, Inc., 649 F.2d 19, 20 (1st Cir.1981) (42 U.S.C. § 2000e et seq.); Fisher v. Flynn, 598 F.2d 663, 665 (1st Cir.1979) ( 42 U.S.C. § 1983 and 42 U.S.C. § 2000e et seq.); Black v. Brown University, 555 F.Supp. 880, 886 (D.R.I.1983) ( 42 U.S.C. § 1981 and 42 U.S.C. § 2000e et seq.).
cited Cited as authority (rule) Black v. Brown University
D.R.I. · 1983 · confidence medium
Sandler v. Eastern Airlines, Inc., 649 F.2d 19, 20 (1st Cir.1981); Fisher v. Flynn, 598 F.2d 663, 665 (1st Cir.1979).
discussed Cited as authority (rule) Gordon v. Crouchley (2×) also: Cited "see"
D.R.I. · 1982 · confidence medium
The rule has been precisely articulated in this Circuit in F.sher v. Flynn, 598 F.2d 663, 665 (1st Cir.1979).
discussed Cited as authority (rule) Greater Wash. Bus. Ctr. v. DC COM'N ON HR
D.C. · 1982 · confidence medium
Where liability is contested, this approach could be utilized only where the fact-finder employed a bifurcated hearing procedure (as distinguished from the single-stage procedure used in the instant case). [9] See Fisher v. Flynn, 598 F.2d 663, 665 (1st Cir.1979). [10] King's memorandum is set forth in full in note 5, ante. [11] Finding of Fact No. 24 is of limited relevance.
discussed Cited as authority (rule) Gordon v. Crouchley (2×) also: Cited "see"
D.R.I. · 1982 · confidence medium
The rule has been precisely articulated in this Circuit in Fisher v. Flynn, 598 F.2d 663, 665 (1st Cir.1979).
cited Cited as authority (rule) Shanley v. Youngstown Sheet & Tube Co.
N.D. Ind. · 1982 · confidence medium
E.g., De Volld v. Bailar, 568 F.2d 1162, 1164 (5th Cir.1978); Fisher v. Flynn, 598 F.2d 663, 665 (1st Cir.1979).
discussed Cited as authority (rule) Barbara J. HENSON, Plaintiff-Appellant, v. CITY OF DUNDEE, Defendant-Appellee (2×)
11th Cir. · 1982 · confidence medium
See Bundy v. Jackson, 641 F.2d at 953 ; Fisher v. Flynn, 598 F.2d 663, 665 (1st Cir. 1979).
discussed Cited as authority (rule) Boynton v. Casey
D. Me. · 1982 · confidence medium
“Complaints based on civil rights statutes must do more than state simple conclusions; they must at least outline the facts constituting the alleged violation.” Fisher v. Flynn, 598 F.2d 663, 665 (1st Cir. 1979).
cited Cited as authority (rule) Hill v. United States Postal Service
S.D.N.Y. · 1981 · confidence medium
See McDonald v. Santa Fe Trail Transportation Co., 427 U.S. 273 , 282 n.10, 96 S.Ct. 2574 , 2580 n.10, 49 L.Ed.2d 493 (1976); Fisher v. Flynn, 598 F.2d 663, 665 (1st Cir. 1979).
discussed Cited as authority (rule) Lorentzen v. Trustees of Boston College
D. Mass. · 1981 · confidence medium
As the First Circuit has said, “complaints based on civil rights statutes must do more than state simple conclusions; they must at least outline the facts constituting the alleged violation.” Fisher v. Flynn, 598 F.2d 663, 665 (1979); quoted in Goldman v. Sears, Roebuck & Co., supra at 1018.
cited Cited as authority (rule) Elliot SANDLER, Plaintiff, Appellee, v. EASTERN AIRLINES, INC., Defendant, Appellant
1st Cir. · 1981 · confidence medium
See Goldman v. Sears, Roebuck & Co., 607 F.2d 1014, 1018 (1st Cir. 1979); Fisher v. Flynn, 598 F.2d 663, 665 (1st Cir. 1979).
discussed Cited as authority (rule) Vazquez v. Bayamon Federal Savings & Loan Ass'n
D.P.R. · 1980 · confidence medium
Pamel Corporation v. Puerto Rico Highway et al, 621 F.2d 33 (C.A. 1, 1980); Pavilonis v. King et al, 626 F.2d 1075 (C.A. 1, 1980); Fisher v. Flynn, 598 F.2d 663, 665 (C.A. 1, 1979); Kadar Corp. v. Milbury, 549 F.2d 230 (C.A. 1, 1977).
Retrieving the full opinion text from the archive…
19 Fair empl.prac.cas. 932, 19 Empl. Prac. Dec. P 9204 Margaret Fisher
v.
Walter Flynn, Etc.
79-1005.
Court of Appeals for the First Circuit.
May 8, 1979.
598 F.2d 663
Gerard J. Clark, Cambridge, Mass., for plaintiff, appellant., Herbert D. Friedman, Boston, Mass., with whom Morris M. Goldings and Hawkes & Goldings, Boston, Mass., were on brief for defendants, appellees.
Coffin, Campbell, Bownes.
Cited by 82 opinions  |  Published
LEVIN H. CAMPBELL, Circuit Judge.

Plaintiff, charging sex discrimination in the termination of her employment at Bridgewater State College as an assistant professor of psychology, appeals from the dismissal of her complaint based on Title VII of the 1964 Civil Rights Act, 42 U.S.C. § 2000e-2 and 42 U.S.C. § 1983 [1] against the Chairman of the Board of Trustees of Massachusetts State Colleges, the Chancellor of the Division of State Colleges, Bridgewater State College, Bridgewater’s president, the head of its psychology department, and an associate professor of psychology. [2] We agree with the district court that plaintiff failed to allege facts sufficient to state a claim upon which relief may be granted.

We quote the relevant paragraphs of the complaint with respect to the alleged reasons for plaintiff’s termination.

“15. The . . . termination was caused solely by discriminatory matters[*665] of those who affected the termination decision at the defendant College.
“16. Some part of the above-mentioned discriminatory nature was the refusal by the plaintiff to accede to the romantic advances of [the department chairman].
“17. All of the above are part of a larger pattern and practice of discrimination based on gender at the defendant College.
“18. All of the above is in contravention of the defendant’s [sic] rights as guaranteed by Title VII of the 1964, as amended, 42 U.S.C. § 2000d [2000e] et seq.”[ [3] ]

Complaints based on civil rights statutes must do more than state simple conclusions; they must at least outline the facts constituting the alleged violation. See Kadar Corp. v. Milbury, 549 F.2d 230 (1st Cir. 1977); Koch v. Yunich, 533 F.2d 80, 85 (2d Cir. 1976). Paragraphs 15, 17, and 18 are plainly of the invalid conclusory variety, merely reflecting plaintiff’s subjective characterization of defendants’ motives and actions. Only paragraph 16 identifies specific conduct allegedly in violation of 42 U.S.C. § 1983 and/or Title VII — conditioning plaintiff’s employment on acquiescence to romantic advances. Much of plaintiff’s argument was directed at establishing that such conduct violates Title VII and/or 42 U.S.C. § 1983. Were we to follow the circuits which have so held, Tomkins v. Public Service Electric & Gas Co., 568 F.2d 1044 (3d Cir. 1977); Barnes v. Costle, 183 U.S. App.D.C. 90, 561 F.2d 983 (1977); Garber v. Saxon Business Products, Inc., 552 F.2d 1032 (4th Cir. 1977), a matter we need not now decide, we would still conclude plaintiff has failed to state a claim upon which relief may be granted because she has not set forth sufficient facts which, if true, would indicate employment was in fact conditioned on acquiescence to romantic advances. Plaintiff has not alleged a sufficient nexus between her refusal to accede to the romantic overtures and her termination. She has not alleged that the department chairman had the authority to terminate her employment or effectively recommend the same and we cannot so assume. See Sweeney v. Board of Trustees of Keene State College, 569 F.2d 169, 172 (1st Cir. 1978) , vacated on other grounds, 439 U.S. 24, 99 S.Ct. 295, 58 L.Ed.2d 216 (1978) (peer-review system for screening requests-^ for tenure and promotion); Trustees of Boston University v. NLRB, 575 F.2d 301, 305 (1st Cir. 1978), petition for cert. filed, 47 U.S.L.W. 3097 (Aug. 22, 1978) (No. 78-67) (chairperson’s recommendations on appointment and reappointment made after consultation with all tenured members of department).

At oral argument plaintiff’s counsel took the position that plaintiff need not allege any link between the chairman and those with authority to hire and fire, that this was a matter for discovery. We disagree. In the circumstances of this case where the wrong complained of is termination based on an improper criterion, we do not see how plaintiff could satisfy the “but for” causation required in impermissibly motivated termination cases, cf. Givhan v. Western Line Consolidated School District. —— U.S. --, --, 99 S.Ct. 693, 58 L.Ed.2d 619 (1979); Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977); Rosaly v. Ignacio, 593 F.2d 145, at 148 (1st Cir. 1979), without alleging facts which would at least indicate defendant chairman had some input in the termination decision. Far from alleging a “but for” causation, plaintiff’s complaint, paragraph 16, indicates that her rebuff of the chairman’s alleged advances merely constituted “some part” of the reason for her termination. Thus, even if we were to assume that vicarious liability may be imposed on some or all of the other defendants, [4] we would first[*666] need to conclude the chairman played some role in the termination decision. Plaintiff has not alleged the necessary facts to establish this predicate. For all that appears, the romantic overtures were but an unsatisfactory personal encounter with no employment repercussions and consequently not actionable. See Tomkins v. Public Service Electric & Gas Co., 568 F.2d 1044, 1048 (3d Cir. 1977) (distinction noted between sexual advances of an individual or personal nature and those having direct employment consequences); Heelan v. Johns-Manville Corp., 451 F.Supp. 1382, 1388 (D.Colo.1978) (Title VII should not be interpreted to reach sexual relations which arise during the course of employment but which have no substantial effect on employment).

Plaintiff next argues the district court erred in supposedly denying her leave to amend her complaint. No motion to amend was, however, filed; the record, including the docket, is entirely silent on either the making or denial of such a motion. [5] We refuse to review a matter of this nature in the absence of its having been tendered below.

Affirmed.

1

. A third, pendent count based on common law defamation was also dismissed.

2

. Plaintiff does not object to the dismissal of the Title VII count against the first, second, and fourth defendants.

3

. Plaintiff’s 42 U.S.C. § 1983 count is premised on the same conduct as the Title VII count.

4

. Plaintiff has not alleged that the other defendants condoned, knew, or should have known of the chairman's alleged advances. Compare Garber v. Saxon Business Products, Inc., 552 F.2d 1032 (4th Cir. 1977) (complaint alleged an employer policy or acquiescence in a practice of compelling female employees to submit to the sexual advances of male supervisors), Miller v. Bank of America, 418 F.Supp. 233 (N.D.[*666] Cal. 1976) (in absence of specific factual allegations describing an employer policy, which in its application imposes or permits a consistent, as distinguished from an isolated, conditioning of employment on acquiescence in sexual advances, no Title VII claim stated), and Munford v. James T. Barnes & Co., 441 F.Supp. 459, 466 (E.D.Mich. 1977) (employer not automatically vicariously liable for discriminatory acts of supervisors (dicta)). But see Barnes v. Costle, 183 U.S.App.D.C. 90, 100, 561 F.2d 983, 993 . (1977) (employer is generally chargeable with Title VII violations occasioned by supervisory personnel) and Heelan v. Johns-Manville Corp., 451 F.Supp. 1382, 1389 (D.Colo.1978) (not necessary to prove an employer policy or practice endorsing sexual harassment). On the contrary, during oral argument plaintiffs counsel stated he did not know whether or not the other defendants knew of the chairman’s alleged advances and took the position that such is not an essential allegation but rather is a matter for discovery.

5

. Plaintiffs counsel suggests that an oral motion to amend may have been made below. However, as he did not handle the case below, he is without personal knowledge. Defense counsel represented to this court during argument that no such oral motion to amend had been made. It would be grossly unfair to defendants as well as subversive of proper judicial procedures for us to presume on such a flimsy foundation that a motion was made. Counsel may not impeach the record by his oral statement; the proper mode would be by proceedings under Fed.R.App.P. 10(e) before the district court. We must abide by the record as it stands. See Hobart v. O'Brien, 243 F.2d 735, 744 (1st Cir.), cert. denied, 355 U.S. 830, 78 S.Ct. 42, 2 L.Ed.2d 42 (1957); 9 Moore’s Federal Practice ¶ 210.08, at 1639 (2d ed. 1948).