Wyatt v. City of Boston

                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.

                                        
                      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.  

                             -2-

          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.

                             -3-

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
                                  

                             -5-

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

                             -6-

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

                             -7-

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.

                             -8-

          So ordered.   
                    

                             -9-