Wyatt v. City of Boston

• Court: Court of Appeals for the First Circuit
• Decided: September 15, 1994
• Docket: 93-2330
• Status: Published

Opinion

USCA1 Opinion

UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

___________________

No. 93-2330
          No. 93-2367

DAVID JAMES WYATT,

                                Plaintiff, Appellant,

                                          v.

                               CITY OF BOSTON, ET AL.,

                                Defendants, Appellees.

                                  __________________

                    APPEALS FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF MASSACHUSETTS

                   [Hon. Edward F. Harrington, U.S. District Judge]
                                               ___________________

                                 ___________________

                                        Before

                               Torruella, Chief Judge,
                                          ___________
                            Selya and Cyr, Circuit Judges.
                                           ______________

                                 ___________________

               David James Wyatt on brief pro se.
               _________________
               Malcolm  S.  Medley  on  brief for  appellee  Boston  School
               ___________________
          Committee.

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                                  September 15, 1994
                                  __________________

Per Curiam.  Appellant  David James Wyatt, a former
                      __________

            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: 
            ___ ______

                      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-
                         ________________________

            99 (2d ed. 1994)  (footnote omitted); 5A Charles A.  Wright &

            Arthur R. Miller,  Federal Practice and Procedure    1357, at
                               ______________________________

            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.
                                      ___ _______     ________

            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)
            ________________     _____

            (citations ommitted).  See also Street v. Fair, 918 F.2d 269,
                                   ________ ______    ____

            272 (1st Cir.  1990) (per curiam); Ricketts  v. Midwest Nat'l
                                               ________     _____________

            Bank, 874 F.2d 1177, 1185 (7th Cir. 1989) (where a sua sponte
            ____

            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-
                                       _____    _____

            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

____________________

            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,
                                      ___  _____    ____
            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
                                ________     ____________________________
            Human Services, 925 F.2d 363,  365-66 (10th Cir. 1991) (state
            ______________
            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.

                                         -4-

"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),
                                    _________________________

            at 17-95 (1994) (footnotes  omitted); see also  Sias  v. City
                                                  ________  ____     ____

            Demonstration Agency, 588  F.2d 692, 695 (9th  Cir. 1978) (it
            ____________________

            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
            _______     ____________________________

            (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
                                                       ___ ____

            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
                          ________     __________________________________

            Ctr. Inc.,  No. 93-2201, slip  op. at 9  (1st Cir.  August 3,
            _________

            1994).  In addition to discharges, other adverse actions  are

            covered  by    2000e-3(a).   See Employment  Discrimination  
                                         ___ __________________________

            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
                                                                      ___

            Haines v. Kerner, 404  U.S. 519, 520 (1972) (per  curiam), we
            ______    ______

            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.
                                                               ______

            Gibson, 355 U.S. 41, 45-46 (1957), appellant could "prove  no
            ______

            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,  
                                          ___                    _____

            87.31,  at  17-116 to  17-117; see  also Shirley  v. Chrysler
                                           ___  ____ _______     ________

            First,  Inc., 970 F.2d 39,  42-43 (5th Cir.  1992) (two month
            ____________

            period from EEOC's dismissal of plaintiff's complaint and her

            termination from her job shows a nexus); Holland v. Jefferson
                                                     _______    _________

            Nat'l  Life Ins.  Co., 883  F.2d 1307,  1314 (7th  Cir. 1989)
            _____________________

            (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.
                                          ___ _______________________

            Green, 411 U.S.  792, 804 (1973).  In so  finding, we express
            _____

            absolutely no  opinion as to  the substantive  merits of  the

            complaints.

                      The  judgments in  both cases  are vacated  and the
                                                         _______

            cases  are remanded  for further proceedings  consistent with
                       ________

            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
                                                                     ____

            appellant's motion for oral argument as moot.

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So ordered.   
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