FISHER v. FLYNN

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. § 19831 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.

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 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.