Wyatt v. City of Boston, s. 93-2330

• Decision Date: 15 September 1994
• Docket Number: 93-2367,Nos. 93-2330,s. 93-2330
• Citation: 35 F.3d 13
• Parties: 65 Fair Empl.Prac.Cas. (BNA) 1441, 94 Ed. Law Rep. 111 David James WYATT, Plaintiff, Appellant, v. CITY OF BOSTON, et al., Defendants, Appellees.
• Court: U.S. Court of Appeals — First Circuit

Page 13

35 F.3d 13

65 Fair Empl.Prac.Cas. (BNA) 1441, 94 Ed. Law

Rep. 111

David James WYATT, Plaintiff, Appellant, v. CITY OF BOSTON, et al., Defendants, Appellees.

Nos. 93-2330, 93-2367.

United States Court of Appeals, First Circuit.

Submitted May 12, 1994.

Decided Sept. 15, 1994.

David James Wyatt, on brief pro se.

Malcolm S. Medley, on brief for appellee Boston School Committee.

Before TORRUELLA, Chief Judge, SELYA and CYR, Circuit Judges.

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. Sec. 1915(d). It held that the second complaint had alleged no new facts or legal theories.

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 p 12.07[2.--5], at 12-99 (2d ed. 1994) (footnote omitted); 5A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure Sec. 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, 109 S.Ct. 1827, 1834, 104 L.Ed.2d 338 (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.

Literature, Inc. v. Quinn, 482 F.2d 372, 374 (1st Cir.1973) (citations omitted). 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. Sec. 2000e-2(a)(1) or for retaliation under Sec. 2000e-3(a). Because both complaints were labelled as complaints for "retaliation," it seems that the analysis under Sec. 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 Sec. 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 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., 31 F.3d 9, 14 (1st Cir.1994). In addition to discharges, other adverse actions are covered by Sec. 2000e-3(a). See Employment Discrimination Sec. 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, 92 S.Ct. 594, 595, 30 L.Ed.2d 652 (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 High School and, as a senior teacher...