USCA1 Opinion

                         [NOT FOR PUBLICATION]



                    UNITED STATES COURT OF APPEALS

                         FOR THE FIRST CIRCUIT

                         ____________________





No. 97-1727



                          DAVID JAMES WYATT,



                         Plaintiff, Appellant,



                                  v.



                        CITY OF BOSTON, ET AL.,



                        Defendants, Appellees.



                         ____________________





             APPEAL FROM THE UNITED STATES DISTRICT COURT



                   FOR THE DISTRICT OF MASSACHUSETTS



               [Hon. Mark L. Wolf, U.S. District Judge]



                         ____________________



                                Before



                        Torruella, Chief Judge,

                   Stahl and Lynch, Circuit Judges.



                         ____________________



    David James Wyatt on brief pro se.

    Malcolm S. Medley, Special Assistant Corporation Counsel, on

brief for appellees.

    





                         ____________________

                           March 26, 1998



                         ____________________











           Per Curiam.      This is an appeal from a jury verdict

    in favor of defendant, the City of Boston.  Plaintiff David

    James Wyatt was terminated from his teaching position in the

    Boston public schools and then filed a complaint under  704(a)

    of Title VII in the Massachusetts district court.  Plaintiff

    essentially claimed that the City had retaliated against him

    for filing charges with the Massachusetts Commission Against

    Discrimination concerning sexual harassment.  See 42 U.S.C. 

    2000e-3(a).  Plaintiff raises essentially two arguments on

    appeal and we reject both of them.

             1.  Plaintiff's first argument is that because the

    City could not show that it had terminated him for a valid

    reason under the collective bargaining agreement ("CBA")

    between the City and the teachers, the City could not rebut the

    presumption that it had acted unlawfully.  For this

    proposition, plaintiff relies on King v. Illinois Bell Tel.

    Co., 476 F.Supp. 495 (N.D.Ill. 1978).  Even assuming arguendo

    that this court would follow King in the same factual setting,

    King would not apply here, however, because it addresses a

    different stage of the Title VII analysis from the one involved

    in this case.

             Specifically, the district court in King was

    concerned with whether the plaintiff could make a prima facie

    case of retaliation -- i.e., whether he could show that he had

    engaged in activity protected by Title VII.  Because the

    conduct in which the plaintiff had engaged violated the

    collective bargaining agreement, the district court held that

    it was not protected.  Id. at 501.  Here, in contrast,

    plaintiff already has made a prima facie case and thus there is

    no question concerning whether the activities in which he had

    engaged were protected.  Rather, plaintiff is focussing on the

    second step in the Title VII analysis -- whether the City has

    shown legitimate reasons for its actions.  King simply does not

    speak to the relevance of a collective bargaining agreement in

    answering this question.

             Plaintiff cites no other cases in support of his

    position that unless an employer can show a dismissal

    accomplished within the terms of a collective bargaining

    agreement, the employer has not articulated a non-

    discriminatory reason for its actions.  This is not surprising

    because plaintiff's position does not hold water. 

    Specifically, plaintiff misunderstands what constitutes

    "unlawful" action under Title VII.

             Courts refer to unlawful action at the second step of

    Title VII analysis.  When a plaintiff has made out a prima

    facie case, an inference is raised that the employer

    "unlawfully discriminated against the employee."  See St.

    Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506 (1993) (internal

    quotation marks and citation omitted; emphasis added).  Hence

    the requirement that the employer articulate a "legitimate,

    nondiscriminatory reason" for its action.  See id. at 507

    (internal quotation marks and citation omitted; emphasis

    added).

             As applied to this case, then, once plaintiff made a

    prima facie case, the presumption arose that the City had

    retaliated against him for his complaints of sexual harassment. 

    The burden shifted to the City to articulate, not that its

    reasons for dismissing plaintiff were within the CBA, but

    rather that the reasons were non-retaliatory, whether or notthey were "CBA-valid."  That the City met this burden is plain

    from the evidence submitted at trial.  The burden of showing

    discrimination rests always on the plaintiff and he has not met

    his burden.

             2.     Plaintiff argues that a judgment entered in a

    case he initiated in Suffolk Superior Court was conclusive,

    under the doctrine of res judicata, as to the City's liability

    under Title VII.  However, the City states, and plaintiff does

    not dispute, that the default judgment has since been removed. 

    Thus, res judicata does not apply.

             For the foregoing reasons, all of the district

    court's rulings were correct and we therefore affirm the

    judgment of that court.  Plaintiff's motion for summary

    disposition is denied as moot, as is his motion for the trial

    transcript to be produced at government expense.