Fredyma v. AT & T Network Systems, Inc., 90-2095

• Decision Date: 16 May 1991
• Docket Number: No. 90-2095,90-2095
• Citation: 935 F.2d 368
• Parties: Jack T. FREDYMA, Plaintiff, Appellant, v. AT & T NETWORK SYSTEMS, INC., Defendant, Appellee.
• Court: U.S. Court of Appeals — First Circuit

Page 368

935 F.2d 368

Jack T. FREDYMA, Plaintiff, Appellant, v. AT & T NETWORK SYSTEMS, INC., Defendant, Appellee.

No. 90-2095.

United States Court of Appeals First Circuit.

Submitted Feb. 6, 1991.

Decided May 16, 1991.

Jack Fredyma, on brief pro se.

Thomas E. Shirley, Martha J. Zackin and Choate, Hall & Stewart on brief, Boston, Mass. for defendant, appellee.

Before CAMPBELL, TORRUELLA and SELYA, Circuit Judges.

PER CURIAM.

Appellant Jack T. Fredyma is a former employee of AT & T Network Systems, Inc. (AT & T). His in forma pauperis complaint, originally filed in the Massachusetts Superior Court, asserted, inter alia, that he was wrongfully discharged in breach of an employment contract because he reported health and safety hazards relating to certain worksite energy conservation programs in which AT & T participated. The defendant removed the case to United States District Court under diversity jurisdiction. Six days after the state court record was filed below, the district court, on its own initiative, dismissed the complaint. The order in its entirety reads:

Plaintiff's Motion for Preliminary Injunction [filed in state court] is denied. Plaintiff's Complaint is dismissed as it fails to state a cause of action. Allegations reflect that Complaint is frivolous.

Also pending at the time of the dismissal were plaintiff's motion for appointment of counsel, and defendant's motion to extend time to answer or otherwise respond. No responsive pleading had been filed.

While the basis is not entirely clear, we construe the dismissal as one under Fed.R.Civ.P. 12(b)(6), first because the court expressly stated that the complaint failed to state a cause of action, and second, aside from the fact that plaintiff's in forma pauperis status was granted in state court under Mass.Gen.L. ch. 261, Secs. 27A-27G, and not under 28 U.S.C. Sec. 1915(d), because Neitzke v. Williams, 490 U.S. 319, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989) teaches that a complaint which fails to state a claim is not automatically "frivolous." Id. at 328, 109 S.Ct. at 1833. Under Sec. 1915(d), a sua sponte dismissal without notice, as here, is appropriate only if a claim is premised upon "an indisputably meritless legal theory" or "factual allegations [that] are clearly baseless." Id. at 325, 327, 109 S.Ct at 1831-32, 1832-33. The Neitzke Court stated:

Under Rule 12(b)(6), a plaintiff with an arguable claim is ordinarily accorded notice of a pending motion to dismiss for failure to state a claim and an opportunity to amend the complaint before the motion is ruled upon. These procedures alert him to the legal theory underlying the defendant's challenge, and enable him meaningfully to respond by opposing the motion to dismiss on legal grounds or by clarifying his factual allegations so as to conform with the requirements of a valid cause of action. This adversarial process also crystallizes the pertinent issues and facilitates appellate review by creating a more complete record of the case.

Id. at 329-30, 109 S.Ct. at 1834. At this procedural threshold, the plaintiff was entitled to "notice of the proposed action and * * * an opportunity to address the issues", Street v. Fair, 918 F.2d 269, 272 (1st Cir.1990), quoting Literature, Inc. v. Quinn, 482 F.2d 372, 374 (1st Cir.1973), unless his complaint lacks an arguable basis in law or fact.

Fredyma was employed as a manufacturing engineer at AT & T's Andover, Massachusetts facility beginning in January 1985. AT & T participates in energy conservation programs sponsored by both the state and federal government. Fredyma's chief complaint centers on AT & T's utilization of a particular product called Energy Efficient Fluorescent Lighting Equipment Systems at the Andover facility. Fredyma learned that AT & T's manufacturing facility in Denver, Colorado had, in 1986, installed another kind of lighting system which used full spectrum lights. On September 22, 1988, he wrote a memo about the use of that system in Denver and the attendant health and safety benefits. The memo, which Fredyma gave to one of his managers at AT & T Andover the following day, requested that the subject of full spectrum lighting again be reviewed (apparently it had been considered and rejected before). According to Fredyma, the memo alerted AT & T to various possible work-place health hazards, particularly in relation to lighting systems.

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