
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.                                  __________________                                  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-
