USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 93-2330
No. 93-2367
DAVID JAMES WYATT,
Plaintiff, Appellant,
v.
CITY OF BOSTON, ET AL.,
Defendants, Appellees.
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APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Edward F. Harrington, U.S. District Judge]
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Before
Torruella, Chief Judge,
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Selya and Cyr, Circuit Judges.
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David James Wyatt on brief pro se.
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Malcolm S. Medley on brief for appellee Boston School
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Committee.
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September 15, 1994
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Per Curiam. Appellant David James Wyatt, a former
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teacher in the Boston public school system, filed two almost
identical complaints in the district court. They concern the
reasons for various allegedly adverse actions taken by
appellees -- the Boston School Committee and school
personnel. Ultimately, appellant was terminated from his
job. Each complaint contains a rambling, detailed, and often
confusing account of the events which led up to appellant's
dismissal. The gist of the complaints is that appellees
retaliated against appellant for opposing what he viewed as
sexual harassment and for filing a complaint with the
Massachusetts Commission Against Discrimination.
The district court dismissed the first complaint
sua sponte. The order states in full:
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A mere reading of plaintiff's Complaint for
Retaliation evidences the fact that the defendants
had good cause to terminate his employment from the
Boston Public School System. So as not to unduly
prejudice the plaintiff from further employment in
the education field, the Court refrains from citing
those portions of plaintiff's Complaint which give
a strong basis for defendants' actions. This case
is dismissed.
In the second action, the court granted in forma pauperis
status to appellant and, at the same time, dismissed his
complaint as frivolous under 28 U.S.C. 1915(d). It held
that the second complaint had alleged no new facts or legal
theories.
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We assume that the dismissal of the first complaint
was based on Fed. R. Civ. P. 12(b)(6). The sticking point is
that the district court dismissed the action without notice
and without giving appellant a chance to amend his complaint
under Fed. R. Civ. P. 15(a) or to respond in any other way to
what the court perceived as the complaint's deficiencies.
The general rule is that such dismissals are proper "if
process has been issued and served and plaintiff is given
notice and an opportunity to respond." 2A James W. Moore &
Jo D. Lucas, Moore's Federal Practice 12.07[2.--5], at 12-
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99 (2d ed. 1994) (footnote omitted); 5A Charles A. Wright &
Arthur R. Miller, Federal Practice and Procedure 1357, at
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301 (2d ed. 1990) (sua sponte dismissal under Rule 12(b)(6)
permitted "as long as the procedure employed is fair"). The
Supreme Court has said that "[u]nder 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." See Neitzke v. Williams, 490 U.S.
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319, 329 (1989) (footnote ommitted).
This court also has stated that
a district court may, in appropriate
circumstances, note the inadequacy of the
complaint and, on its own initiative,
dismiss the complaint. Yet a court may
not do so without at least giving
plaintiffs notice of the proposed action
and affording them an opportunity to
address the issue.
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Literature, Inc. v. Quinn, 482 F.2d 372, 374 (1st Cir. 1973)
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(citations ommitted). See also Street v. Fair, 918 F.2d 269,
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272 (1st Cir. 1990) (per curiam); Ricketts v. Midwest Nat'l
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Bank, 874 F.2d 1177, 1185 (7th Cir. 1989) (where a sua sponte
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dismissal is contemplated by a district court, that court
must first give "both notice of the court's intention and an
opportunity to respond"); Perez v. Ortiz, 849 F.2d 793, 797-
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98 (2d Cir. 1988) (although sua sponte dismissals are proper
in some circumstances, a plaintiff must first be given
"notice and an opportunity to be heard").1
The district court determined that the School
Committee had "good cause" to fire appellant. However, it is
not clear from the court's order whether it was treating
appellant's claim as one for unlawful termination under 42
U.S.C. 2000e-2(a)(1) or for retaliation under 2000e-3(a).
Because both complaints were labelled as complaints for
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1. We note that in some circumstances other circuits have
held that where a district court has dismissed a complaint
for failure to state a claim sua sponte, and without notice
or an opportunity to be heard, reversal of such a Rule
12(b)(6) dismissal is not mandated if amendment would be
futile or if it is patently obvious that the plaintiff could
not prevail. However, most of these cases involve defects
which are self-evident. See Smith v. Boyd, 945 F.2d 1041,
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1043 (8th Cir. 1991) (inspection of nonpriviledged mail does
not constitute a constitutional violation of prisoner's
rights; complaint also failed to allege any injury from
defendants' acts); McKinney v. State of Oklahoma Dep't of
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Human Services, 925 F.2d 363, 365-66 (10th Cir. 1991) (state
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defendants were immune from suit, private defendant did not
act under color of state law and complaint alleged a
violation of a right which plainly did not exist). We do not
think that this is such a case.
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"retaliation," it seems that the analysis under 2000e-3(a)
applies. This section provides in relevant part:
It shall be an unlawful employment practice
for an employer to discriminate against any of his
employees . . . because [the employee] has opposed
any practice made an unlawful employment practice
by this subchapter, or because he has made a
charge, testified, assisted, or participated in any
manner in an investigation, proceeding, or hearing
under this subchapter.
Appellant's claims of retaliation are based on both the
"participation" and the "opposition" clauses. That is, he
made a charge to the MCAD and opposed what he saw as sexual
harassment.
As for the participation clause, "there is nothing
in its wording requiring that the charges be valid, nor even
an implied requirement that they be reasonable." 3 Arthur
Larson & Lex K. Larson, Employment Discrimination 87.12(b),
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at 17-95 (1994) (footnotes omitted); see also Sias v. City
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Demonstration Agency, 588 F.2d 692, 695 (9th Cir. 1978) (it
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is "well settled" that participation clause protects an
employee regardless of the merit of his or her EEOC charge);
Pettway v. American Cast Iron Pipe Co., 411 F.2d 998, 1007
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(5th Cir. 1969) (fact that employee made false and malicious
statements in his EEOC charge is irrelevant). However, a
claim concerning the opposition clause requires that the
employee have a reasonable belief that the practice the
employee is opposing violates Title VII. See Sias, 588 F.2d
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at 696; Bigge v. Albertsons, Inc., 894 F.2d 1497, 1501 (11th
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Cir. 1990) (employee needs to show, in a case involving the
opposition clause, that "he opposed an unlawful employment
practice which he reasonably believed had occurred or was
occurring").
Nonetheless, the requirements of a prima facie case
for either clause are the same. That is, appellant "must
show by a preponderance of the evidence that: (1) [he]
engaged in a protected activity as an employee, (2) [he] was
subsequently discharged from employment, and (3) there was a
causal connection between the protected activity and the
discharge." Hoeppner v. Crotched Mountain Rehabilitation
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Ctr. Inc., No. 93-2201, slip op. at 9 (1st Cir. August 3,
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1994). In addition to discharges, other adverse actions are
covered by 2000e-3(a). See Employment Discrimination
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87.20, at 17-101 to 17-107 (listing employer actions such as
demotions, disadvantageous transfers or assignments, refusals
to promote, unwarranted negative job evaluations and
toleration of harassment by other employees).
Construing appellant's complaint liberally, see
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Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam), we
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think that it satisfies the first two requirements -- he
filed charges with the MCAD and subsequently was fired. As
other adverse actions, appellant alleges that he was denied a
promotion at the Boston Latin Academy, he received negative
performance evaluations, he was transferred to Madison Park
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High School and, as a senior teacher there, was not given a
choice concerning what class he was to teach.
The question, then, is whether under Conley v.
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Gibson, 355 U.S. 41, 45-46 (1957), appellant could "prove no
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set of facts" which would establish a causal link between his
complaints and the alleged adverse actions. One way of
showing causation is by establishing that the employer's
knowledge of the protected activity was close in time to the
employer's adverse action. See Larson & Larson, supra,
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87.31, at 17-116 to 17-117; see also Shirley v. Chrysler
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First, Inc., 970 F.2d 39, 42-43 (5th Cir. 1992) (two month
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period from EEOC's dismissal of plaintiff's complaint and her
termination from her job shows a nexus); Holland v. Jefferson
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Nat'l Life Ins. Co., 883 F.2d 1307, 1314 (7th Cir. 1989)
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(sufficient link where supervisor first told employee her job
would be kept open for her while she was on maternity leave,
but changed his mind "shortly after" employee complained of
sexual harassment).
Here, the district court went directly to the
second step in a Title VII case -- whether the employer had
cause for its adverse actions. It is impossible to tell from
the court's cryptic order whether it addressed the question
of a prima facie case. Although not entirely clear, the
sequence of the relevant events in this case reveals that
appellant's complaints and the allegedly adverse actions
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occurred almost simultaneously during the relevant time
period. Thus, the face of the complaint arguably shows a
connection -- the third requirement of a prima facie case.
While an employer might have reasons to discharge
an employee, it cannot discharge the employee for an improper
reason such as retaliation. Because appellant states a claim
just by making a prima facie case, we cannot say that "it
appears beyond doubt that [appellant] can prove no set of
facts in support of" his case. Finally, even assuming that
appellant's complaint demonstrates that there was cause for
his alleged demotions and dismissal, appellant must be given
a "fair opportunity" to show that appellees' reasons for
their actions were pretexts. See McDonnell Douglas Corp. v.
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Green, 411 U.S. 792, 804 (1973). In so finding, we express
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absolutely no opinion as to the substantive merits of the
complaints.
The judgments in both cases are vacated and the
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cases are remanded for further proceedings consistent with
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this opinion. We note that we are remanding the second
action because the dismissal of that complaint was based on
its similarity to the first complaint. We do not consider
appellant's arguments concerning the FBI's alleged
connections with the district court judge because they have
been raised for the first time on appeal. Finally, we deny
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appellant's motion for oral argument as moot.
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So ordered.
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