Garayalde-Rijos v. Municipality of Carolina , 747 F.3d 15 ( 2014 )

United States Court of Appeals
For the First Circuit
No. 13-1487
WALESKA GARAYALDE-RIJOS,
Plaintiff, Appellant,
v.
MUNICIPALITY OF CAROLINA; JOSÉ APONTE-DALMAU, Mayor of the
Municipality of Carolina,
Defendants, Appellees,
GERMÁN SANTIAGO-SERPA; JUAN ORTIZ-CRESPO;
NYDIA R. TALAVERA-FORTY, Auxiliar Director of Human Resources
Department; MABEL LÓPEZ,
Defendants.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Francisco A. Besosa, U.S. District Judge]
Before
Lynch, Chief Judge,
Torruella and Selya, Circuit Judges.
Juan M. Frontera Suau for appellant.
Jorge Martínez-Luciano, with whom Pedro E. Ortiz-Álvarez, LLC
was on brief, for appellee Municipality of Carolina.
Rosa Elena Pérez-Agosto, Assistant Solicitor General, with
whom Margarita Mercado-Echegaray, Solicitor General, was on brief,
for appellee José Aponte-Dalmau.
March 28, 2014
LYNCH, Chief Judge. The district court granted a motion
to dismiss the Title VII and state law claims of a woman who
aspired to be a municipal firefighter. She has appealed.
Waleska Garayalde-Rijos sued the Municipality of Carolina
(Carolina) and José Aponte-Dalmau, the Mayor of Carolina (Mayor),
in September 2011, alleging that Carolina had refused to hire her
as a firefighter for several vacancies because of her gender,
although she was allegedly the most qualified candidate. Carolina
eventually did hire Garayalde-Rijos as a firefighter after it had
already hired allegedly less qualified males and only after the
Equal Employment Opportunity Commission (EEOC) concluded that
Carolina had discriminated against Garayalde-Rijos in its hiring
process. Garayalde-Rijos asserted that Carolina continued to
discriminate against her on the job and retaliated against her for
her pre-hire complaint of sex discrimination to the EEOC.
Garayalde-Rijos's complaint brought sex discrimination
and retaliation claims under Title VII of the Civil Rights Act of
1964, 42 U.S.C. § 2000e-2 et seq., as well pendent state law
claims, based on the defendants' pre- and post-hire conduct. We
conclude the district court's dismissal of Garayalde-Rijos's
complaint under Fed. R. Civ. P. 12(b)(6) was based on at least
three errors of law: (1) use of the prima facie case, an
evidentiary standard, as a pleading requirement; (2) dismissal of
plaintiff's retaliation claim based solely on its incorrect
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temporal analysis of causation at the motion-to-dismiss stage; and
(3) sua sponte dismissal of certain claims without any notice to
the parties. As a result, we reverse in part and dismiss the
appeal as to those claims Garayalde-Rijos has waived. We remand
for further proceedings.
I.
We recite the facts from Garayalde-Rijos's amended
complaint, taking her factual allegations as true and drawing
reasonable inferences in her favor. Hammond v. Kmart Corp., 733
F.3d 360, 361 (1st Cir. 2013).
A. Pre-Hire Discrimination and EEOC Complaint
On November 16, 2009,1 Carolina announced eight
firefighter position vacancies. Garayalde-Rijos applied in
November 2009. She also sent the Mayor a letter on November 16
stating her skills and asking to be considered for the position.
The Mayor has final authority on all hiring decisions in Carolina.
In January 2010, Garayalde-Rijos received a phone call
from one of Carolina's employees asking her to attend a physical
fitness test. The test consisted of exercises, including
weightlifting, pushups, a 100-meter run, climbing stairs, and
moving in confined spaces while wearing firefighter gear and
1
The complaint states that Carolina announced the vacancies
in November 2010, not November 2009. We assume this was a
typographical error, as did the district court, given the timeline
that follows.
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carrying a fire hose. Garayalde-Rijos was the only woman among the
twenty-eight candidates that took the fitness test. After the
"rescue truck stair[] climbing test," other candidates
congratulated Garayalde-Rijos on her good performance.
In February 2010, Garayalde-Rijos was asked to take a
second physical fitness test that consisted of a simulated fire in
a confined space during which candidates had to help a trapped
victim. Again, Garayalde-Rijos was the only woman.
On March 4, 2010, the Director of Carolina's Human
Resources Department, Nydia Talavera, sent Garayalde-Rijos a letter
saying that she had been included in the "Register of Eligible[s]
for the Carolina Firefighter position" with a test score of 80.
The score was based on academic preparation, performance on
physical tests, and past experience. The letter asked her to
attend an interview on March 11, 2010.
At this point in the application process, the applicant
pool had been reduced to sixteen from the original twenty-eight.
Garayalde-Rijos was the only woman, and she had the highest test
score of all of the applicants.
Germán Santiago Serpa, the Director of the Carolina
Municipal Firefighter Brigade, interviewed Garayalde-Rijos on March
11. Santiago knew Garayalde-Rijos from her previous job in the
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Commonwealth of Puerto Rico Fire Department.2 He warned her that
the firefighter position is a "24/7" job and said that he knew that
she had a child. He asked her how she was going to deal with child
care. Juan Ortiz Crespo, the Security Manager for Carolina, also
interviewed Garayalde-Rijos. He asked her whom she lived with, if
she lived in Carolina, and if her parents lived in Carolina.
Garayalde-Rijos followed up on her application but got no
response for several months after her March 2010 interview. In
June 2010, she went to Carolina's Human Resources Department and
was told that Carolina had not yet hired anyone to fill the
firefighter vacancies.
On June 28, 2010, Garayalde-Rijos sent a second letter to
the Mayor stating her credentials (including her score of 80),
saying that "she [would] be honored to be the first woman"
firefighter in Carolina, and asking that she not be discriminated
against based on her gender.
In July 2010, Garayalde-Rijos followed-up again, this
time visiting the Carolina Municipal Fire Station directly. There
she learned that three male candidates had in fact been hired as
firefighters.
On August 17, 2010, Garayalde-Rijos sent a third letter
to the Mayor asking why she had not been informed about the status
2
The complaint does not state whether Garayalde-Rijos worked
as a firefighter at the Commonwealth of Puerto Rico Fire
Department.
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of her application and reaffirming her interest in the firefighter
position.
Garayalde-Rijos alleges she was the only woman who
applied for a firefighter position and she met all the job
qualifications, yet male candidates with lower test scores were
hired instead of her. As a result, she consulted with the Women
Defender's Office in Puerto Rico and sent Carolina and the Mayor
notice of her gender discrimination claim on October 27, 2010.
On November 1, 2010, Garayalde-Rijos filed a charge of
gender discrimination with the EEOC based on Carolina's refusal to
hire her. On December 2, 2010, Carolina denied Garayalde-Rijos's
claim of sex discrimination. At this point, Carolina had only one
of the eight firefighter vacancies left unfilled. Men, allegedly
less qualified, had been hired for the first seven positions.
The EEOC later sought documents from Carolina, and
Carolina complied with the request on January 31, 2011. After its
investigation, the EEOC issued a "Letter of Determination" on
February 16, 2011, which Garayalde-Rijos attached to the complaint.
In that letter, the EEOC concluded that "[e]vidence obtained does
establish a violation [for gender discrimination] under Title VII."
The letter explained: "[Garayalde-Rijos] met all qualification
criteria for the [firefighter] position, yet was denied employment.
Comparatively, male candidates for the position with lower test
scores and qualifications than [Garayalde-Rijos] were hired." The
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EEOC sought to end Carolina's "unlawful practices by informal
methods of conciliation," attaching a Conciliation Proposal to its
Letter of Determination.
On February 24, 2011, Carolina objected to the EEOC's
determination. Nonetheless, a month later, during the week of
March 21, 2011, it offered Garayalde-Rijos the last available
firefighter position. Garayalde-Rijos started work as a
firefighter on April 1, 2011.
B. Post-Hire Discrimination and Retaliation
Garayalde-Rijos alleged she was subjected to
discrimination and retaliation after she was hired because she was
treated differently than her male colleagues. The male
firefighters all had appropriately-sized uniforms and bunkers3 that
Carolina had purchased for them. In contrast, Garayalde-Rijos was
forced to share with a male firefighter a uniform and bunker that
were too big for her; the uniform was tailored to his measurements,
and the poor fit compromised her safety.
In addition, she alleged "[o]ther discriminatory and
retaliat[ory] treatment . . . related to trainings, on the job
assigned duties and comments pertaining to her filing of the EEOC
charge and the present Complaint." This treatment occurred "with
the blessing of [the Mayor]."
3
"Bunker" gear refers to firefighters' protective clothing.
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II.
Garayalde-Rijos sued Carolina, the Mayor, and some of
Carolina's employees for sex discrimination, retaliation, and
negligence on September 26, 2011, within ninety days of having
received a right to sue letter on June 29, 2011. She amended the
complaint on March 6, 2012, voluntarily dismissing her claims
against all named defendants other than Carolina and the Mayor, as
well as the state law negligence claim.
The amended complaint asserted sex discrimination claims
under Title VII, 42 U.S.C. § 2000e-2, and Puerto Rico law, P.R.
Laws Ann. tit. 29, §§ 146, 1321, based on Carolina's and the
Mayor's refusal to hire Garayalde-Rijos and their discriminatory
treatment of her after she was hired. She also alleged that the
defendants' post-hire conduct constituted unlawful retaliation for
her EEOC complaint challenging Carolina's hiring process, in
violation of Title VII, 42 U.S.C. § 2000e-3, and "Puerto Rico Law
115," P.R. Laws Ann. tit. 29, § 194a. Garayalde-Rijos alleged she
has suffered a loss of salary and benefits, as well as other
damages, due to Carolina and the Mayor's actions.
The Mayor filed a motion to dismiss the claims against
him under Fed. R. Civ. P. 12(b)(6) on March 6, 2012, which
Garayalde-Rijos never opposed. On August 30, 2012, the magistrate
judge recommended dismissing with prejudice all of Garayalde-
Rijos's claims against the Mayor in a Report & Recommendation (R &
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R). The R & R alerted Garayalde-Rijos that she had 14 days to
object to it under Fed. R. Civ. P. 72(b)(2) and the District of
Puerto Rico's Local Rule 72(d), but Garayalde-Rijos did not file an
objection.
Carolina had also filed a motion to dismiss on November
2, 2011, which Garayalde-Rijos opposed on November 18, 2011.
Because Carolina's motion to dismiss was pending when Garayalde-
Rijos later amended her complaint on March 6, 2012, Carolina
submitted a memo on March 6, which explained that it sought to
dismiss only the post-hire Title VII discrimination claims and
analogous state law discrimination claim (Puerto Rico's "Law 100,"
P.R. Laws Ann. tit. 29, § 146) against it. Carolina did not seek
dismissal of Garayalde-Rijos's pre-hire sex discrimination claims.
The memo did not say that Carolina sought dismissal of the post-
hire retaliation claim, but the magistrate judge treated it as
doing so.
On August 30, 2012, the magistrate judge issued a second
R & R, which recommended granting Carolina's motion to dismiss the
post-hire Title VII claims and Puerto Rico Law 100 claim. The
magistrate judge concluded that Garayalde-Rijos did not exhaust
administrative remedies before filing a Title VII discrimination
claim based on Carolina's post-hire conduct because the EEOC
complaint was filed before she was hired and addressed only her
failure-to-hire theory of liability. He recommended dismissal of
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her state law employment discrimination claim because Puerto Rico's
Law 100 does not apply to municipalities, such as Carolina.
The magistrate judge also recommended dismissal of
Garayalde-Rijos's Title VII retaliation claim because she had not
sufficiently alleged a prima facie case of retaliation. In so
concluding, the magistrate judge erroneously required Garayalde-
Rijos's pleadings to establish a prima facie case at the motion-to-
dismiss stage. See Rodríguez-Reyes v. Molina-Rodríguez, 711 F.3d
49, 51 (1st Cir. 2013) ("The prima facie case is an evidentiary
model, not a pleading standard.").
Garayalde-Rijos objected to the R & R's analysis of the
sufficiency of her pleadings as to her Title VII retaliation claim.
However, she did not object to the magistrate judge's recommended
dismissal of her post-hire Title VII discrimination claim for lack
of exhaustion.
On September 25, 2012, the district court adopted the
magistrate judge's findings and recommendations as to both Carolina
and the Mayor, granting the defendants' motions to dismiss. The
court noted that Garayalde-Rijos's failure to object to the R & R
recommending dismissal of her complaint against the Mayor "waived
the right to further review of that R & R in the district court"
under Davet v. Maccarone, 973 F.2d 22, 30-31 (1st Cir. 1992).
The district court also sua sponte dismissed plaintiff's
entire complaint against Carolina, including her pre-hire
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discrimination claims. It did so without explanation or notice to
the parties even though neither Carolina's motion to dismiss nor
the magistrate judge's corresponding R & R encompassed these pre-
hire claims.
On October 4, 2012, Garayalde-Rijos moved for
reconsideration, asking the district court to reinstate the claims
against Carolina that it had sua sponte dismissed. (These included
claims under "Law 69 [and] Law 115," Puerto Rico's sex-based
employment discrimination and workplace retaliation statutes,
respectively, and a Title VII failure-to-hire claim.) She also
sought reconsideration of the dismissal of her Title VII
retaliation claim against Carolina. The district court denied
Garayalde-Rijos's motion in a text order on February 25, 2013.
This appeal followed.
III.
Garayalde-Rijos has waived review of several claims on
appeal. We briefly address the scope of the waiver before turning
to those issues that have been preserved.
A. Waiver of Claims Against the Mayor and Post-Hire
Discrimination Claims
On appeal, Garayalde-Rijos challenges the dismissal of
her pre-hire discrimination claims against the Mayor. However,
Garayalde-Rijos never objected to the R & R addressing those
claims, which the district court adopted. That R & R did not
distinguish between her pre- and post-hire discrimination claims
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and recommended dismissing all of her claims against the Mayor.4
It also notified plaintiff that a failure to object risked waiver.
Because Garayalde-Rijos was given adequate notice, her "failure to
assert a specific objection to [the R & R] [has] irretrievably
waive[d] any right to review by the district court and th[is] court
of appeals."5 Cortés-Rivera v. Dep't of Corr. & Rehab. of P.R.,
626 F.3d 21, 27 (1st Cir. 2010) (quoting Santiago v. Canon U.S.A.,
Inc., 138 F.3d 1, 4 (1st Cir. 1998)) (internal quotation mark
omitted).
Similarly, Garayalde-Rijos's failure to object
specifically to the magistrate judge's recommendation that her
post-hire Title VII discrimination claim against Carolina be
dismissed for lack of exhaustion of administrative remedies waives
her right to this court's review of that claim. In fact, the
4
The magistrate judge recommended dismissing the Title VII
claims against the Mayor because the federal statute does not
impose liability on individuals.
As to Garayalde-Rijos's state law claims, the magistrate
judge concluded that Puerto Rico law imposes individual liability
only on supervisors who directly and personally commit the alleged
acts of discrimination and retaliation. He reasoned that
Garayalde-Rijos's allegations failed to state a claim of
discrimination against the Mayor because they said only that her
letters to the Mayor regarding her application went unanswered. He
also found the claim that the post-hiring discriminatory and
retaliatory conduct had occurred "with the blessing of [the Mayor]"
was "merely conclusory" and so was insufficient to state a
plausible claim.
5
At oral argument, Garayalde-Rijos's attorney conceded that
her arguments against the Mayor are waived if the R & R addressed
all of the claims against the Mayor, which it did.
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absence of any developed argument on appeal as to this
discrimination claim constitutes double default. Cf. United States
v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990).6 However, we note that
the same factual allegations that form the basis of Garayalde-
Rijos's post-hire discrimination claim also support her retaliation
claim; her waiver as to the former in no way restricts our review
of the latter.7
We address below Garayalde-Rijos's arguments concerning
the dismissal of the pre-hire discrimination claims and post-hire
retaliation claims against Carolina.
B. The District Court's Sua Sponte Dismissal of Garayalde-
Rijos's Complaint
We review de novo a district court's dismissal of a
complaint for failure to state a claim. García-Catalán v. United
States, 734 F.3d 100, 102 (1st Cir. 2013).
Here, the district court sua sponte dismissed Garayalde-
Rijos's entire complaint in one sentence although Carolina did not
seek that relief and had moved to dismiss only a subset of the
6
We do not understand Garayalde-Rijos to challenge the
dismissal of her Puerto Rico Law 100 employment discrimination
claim against Carolina given that her brief makes no arguments nor
requests any relief on this ground. In any event, we deem this
claim waived.
7
The R & R correctly stated that a separate retaliation
claim need not be filed with the EEOC to exhaust administrative
remedies. Clockedile v. N.H. Dep't of Corr., 245 F.3d 1, 6 (1st
Cir. 2001) ("[Title VII] retaliation claims are preserved so long
as the retaliation is reasonably related to and grows out of the
discrimination complained of to the agency . . . .").
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claims asserted against it. Nor did the R & R, which the district
court adopted, address the pre-hire discrimination claims (under
Title VII and Puerto Rico Law 69) and retaliation claim (Puerto
Rico Law 115) that Carolina had not moved to dismiss. The district
court later denied Garayalde-Rijos's request that it reinstate
these claims. The sua sponte dismissal of these claims, without
explanation or notice, was error.
"Sua sponte dismissals are strong medicine, and should be
dispensed sparingly." Chute v. Walker, 281 F.3d 314, 319 (1st Cir.
2002) (quoting Gonzales-Gonzalez v. United States, 257 F.3d 31, 33
(1st Cir. 2001)) (internal quotation marks omitted). The general
rule is that sua sponte dismissals of complaints under Rule
12(b)(6) are "erroneous unless the parties have been afforded
notice and an opportunity to amend the complaint or otherwise
respond." Futura Dev. of P.R., Inc. v. Estado Libre Asociado de
P.R., 144 F.3d 7, 14 (1st Cir. 1998). Only where "it is crystal
clear that the plaintiff cannot prevail and that amending the
complaint would be futile" can a sua sponte Rule 12(b)(6) dismissal
stand. Chute, 281 F.3d at 319 (quoting Gonzales-Gonzalez, 257 F.3d
at 37) (internal quotation mark omitted). "The party defending the
dismissal must show that 'the allegations contained in the
complaint, taken in the light most favorable to the plaintiff, are
patently meritless and beyond all hope of redemption.'" Id.
(quoting Gonzalez-Gonzalez, 257 F.3d at 37).
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Carolina has not attempted to meet this burden, nor could
it. See id. at 319-20 (reversing district court's cursory, sua
sponte dismissal of plaintiff's complaint for failure to state a
claim without giving the parties an opportunity to respond); Futura
Dev. of P.R., Inc., 144 F.3d at 14 (same).
In addition, we reject Carolina's request that we affirm
the district court's dismissal of plaintiff's failure-to-hire Title
VII claim on the asserted alternate grounds that the claim will
fail on remand. Carolina argues that Garayalde-Rijos will not be
able to prove discrimination in its hiring process because she was
in fact hired for one of eight positions to which she applied.
Carolina contends that at most Garayalde-Rijos complains of a delay
in hiring, and Title VII does not entitle her to get hired in any
particular order.
Carolina's argument ignores that this case is on appeal
at the motion-to-dismiss stage. Plaintiff must allege only
"sufficient factual matter to state a claim to relief that is
plausible on its face." Grajales v. P.R. Ports Auth., 682 F.3d 40,
44 (1st Cir. 2012) (quoting Katz v. Pershing, LLC, 672 F.3d 64, 72-
73 (1st Cir. 2012)) (internal quotation mark omitted). "A claim
has facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged." Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009).
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The claims asserted plainly meet the plausibility
standard. Title VII makes it unlawful for an employer to "fail or
refuse to hire . . . any individual, or otherwise to discriminate
against any individual with respect to [her] compensation, terms,
conditions, or privileges of employment, because of such
individual's . . . sex." 42 U.S.C. § 2000e-2(a)(1) (emphases
added). It is not difficult to infer reasonably from her factual
allegations that the reason Carolina failed to hire Garayalde-Rijos
for any of the first seven vacancies was her gender. The fact that
Garayalde-Rijos was eventually hired does not mean there was not
unlawful discrimination in the hiring decisions for the first seven
firefighter positions.
Here, Garayalde-Rijos alleged she was the only woman to
apply for the firefighter positions and she had the highest score
of all of the applicants based on Carolina's evaluation of their
"academic preparation, experience, and [performance on] physical
tests." Although Garayalde-Rijos alleges she was the most
qualified candidate, Carolina filled the first seven vacancies with
male candidates between June/July and December of 2010. In
contrast, Carolina did not offer Garayalde-Rijos a position until
the last week of March 2011 and only after the EEOC, an independent
body, reviewed these facts and concluded that Carolina had
discriminated against Garayalde-Rijos in its hiring process.
During the lengthy, eight-month delay before Garayalde-Rijos was
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hired, she was denied salary and other valuable employment benefits
that allegedly less qualified candidates were receiving.
Given these factual allegations, it is reasonable to
infer that Carolina refused to hire Garayalde-Rijos (seven times)
because she was a woman, even though she was the most qualified
candidate, and that Carolina hired Garayalde-Rijos months later
only because of the adverse EEOC determination. These allegations
state a plausible claim of sex discrimination under Title VII,
including for damages based on Garayalde-Rijos's claim that she
would have been hired months earlier absent any discrimination.
C. The District Court's Dismissal of Garayalde-Rijos's Title
VII Retaliation Claim for Failure to State a Claim
Title VII bars employers from retaliating against an
applicant or employee because she "has opposed any practice made an
unlawful employment practice by this subchapter, or because [s]he
has made a charge, testified, assisted, or participated in any
manner in an investigation, proceeding, or hearing under this
subchapter." 42 U.S.C. § 2000e-3(a). To establish a prima facie
case of retaliation, a plaintiff must show: (1) she engaged in
protected conduct; (2) she suffered an adverse employment action;
and (3) that a "causal nexus exists between the protected [conduct]
and the adverse action." Ponte v. Steelcase Inc., 741 F.3d 310,
321 (1st Cir. 2014); id. (noting that plaintiff must prove but-for
causation (citing Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S. Ct.
2517, 2534 (2013))).
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The district court concluded that Garayalde-Rijos's
complaint failed to state a claim of retaliation because she had
not sufficiently alleged a prima facie case. The court determined
that she had adequately pleaded the first two prongs given
allegations that she: (1) had filed an EEOC complaint alleging sex
discrimination; and (2) suffered a material harm after she was
hired as the only firefighter denied a protective uniform and
bunker that were tailored to her measurements and so safe. The
court held that her "retaliation claim fails at the last
prong, however, because she has not sufficiently alleged a causal
connection between her protected conduct and the adverse employment
action." The district court made at least three errors.
First, the district court faulted Garayalde-Rijos for not
stating specific facts that "connect" the alleged mistreatment
after she was hired to the filing of her EEOC complaint. In so
doing, the district court treated the prima facie case, "a flexible
evidentiary standard," as a "rigid pleading standard," Swierkiewicz
v. Sorema N.A., 534 U.S. 506, 512 (2002), requiring Garayalde-Rijos
to establish each prong of the prima facie case to survive a motion
to dismiss. This was an error of law.
We have explicitly held that plaintiffs need not plead
facts in the complaint that establish a prima facie case under
Title VII nor must they "allege every fact necessary to win at
trial." Rodríguez-Vives v. P.R. Firefighters Corps of P.R., ___
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F.3d ___, 2014 WL 593673, at *3 (1st Cir. Feb. 18, 2014) (reversing
Rule 12(b)(6) dismissal of female firefighter's Title VII
retaliation claim); Rodríguez-Reyes, 711 F.3d at 54. The
plausibility standard governs on a motion to dismiss. So, "[n]o
single allegation need [establish] . . . some necessary element [of
the cause of action], provided that, in sum, the allegations of the
complaint make the claim as a whole at least plausible." Ocasio-
Hernández v. Fortuño-Burset, 640 F.3d 1, 14-15 (1st Cir. 2011).
The district court also erred when it found Garayalde-
Rijos's pleadings inadequate due to its view that alleged causation
for retaliation must be deemed implausible based solely on a five-
month period between the protected conduct and adverse employment
action. Specifically, the court concluded that Garayalde-Rijos
could not rely on "temporal proximity" to "establish causation"
because the five-month gap between the November 1, 2010 filing of
the EEOC complaint and April 1, 2011, when the alleged post-hire
retaliation started, was too long. However, "temporal proximity"
is merely one factor relevant to causation and usually only later
in the proceedings, for example at summary judgment.8 See, e.g.,
8
The parties have directed us to no case dismissing a Title
VII retaliation claim under Rule 12(b)(6) utilizing only a temporal
analysis to defeat causation allegations. Once a complaint has
alleged enough facts that retaliation for protected conduct is
plausible, the plaintiff is entitled to proceed to discovery.
Rodríguez-Vives, 2014 WL 593673, at *6. And discovery might
unearth evidence of retaliation such that at summary judgment or
trial, the plaintiff will not have to rely heavily on the "temporal
proximity" between protected conduct and adverse actions to prove
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Trainor v. HEI Hospitality, LLC, 699 F.3d 19, 28 (1st Cir. 2012)
(treating "temporal proximity" between adverse employment action
and protected conduct as just one factor, "reinforced by other
evidence," that supported a jury verdict of retaliation); Sánchez-
Rodríguez v. AT&T Mobility P.R., Inc., 673 F.3d 1, 15 (1st Cir.
2012) (noting that evidence of close "temporal proximity" can help
establish causation prong of prima facie case at summary judgment);
Calero-Cerezo v. U.S. Dep't of Justice, 355 F.3d 6, 25 (1st Cir.
2004) (same).9 We do not rule out that some pleadings may allege
a temporal gap so attenuated as not to meet the plausibility
standard for surviving motions to dismiss, but this case is a far
cry from that.
Beyond that, the temporal analysis here is flawed. The
court's rote evaluation of the time lag failed to read Garayalde-
Rijos's complaint holistically and ignored relevant context. See
Braden v. Wal-Mart Stores, Inc., 588 F.3d 585, 594 (8th Cir. 2009)
(explaining that the complaint should be read in its entirety and
"not parsed piece by piece to determine whether each allegation, in
isolation, is plausible"). In fact, the post-hire adverse
her case. See Swierkiewicz, 534 U.S. at 511-12.
9
The cases on which the district court's temporal analysis
of causation relied were on appeal from a grant of summary
judgment, not a Rule 12(b)(6) dismissal. See Calero-Cerezo, 355
F.3d 6. In addition, all of the cases that Carolina cites to
support the district court's temporal analysis involve summary
judgment, not motions to dismiss.
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treatment occurred only weeks after the EEOC finding and the
decision to hire her.
A more common-sense, plausible reading of Garayalde-
Rijos's complaint is that the post-hire mistreatment was in
retaliation for Garayalde-Rijos's pre-hire EEOC complaint of sex
discrimination. Garayalde-Rijos alleged facts that suggest: (1)
Carolina reluctantly hired her only after the EEOC had determined
that Garayalde-Rijos's complaint of sex discrimination was likely
meritorious; and (2) as soon as Garayalde-Rijos started working,
Carolina treated her unequally compared to her male counterparts
and in a way that risked her safety. The district court erred in
ignoring Garayalde-Rijos's allegations of pre-hire discrimination,
which set the stage for the plausibility of her post-hire
retaliation claim. Indeed, since the hiring date was in the
control of Carolina, the district court's analysis threatens to
reward defendants who continue to practice discrimination in hiring
and then engage in post-hiring retaliation.
IV.
We reverse the dismissal of the claims against Carolina
as to the Title VII failure-to-hire and retaliation claims and
pendent state law claims (P.R. Laws Ann. tit. 29, §§ 194a and
1321). We dismiss the appeal insofar as it relates to the waived
claims against the Mayor and the post-hire discrimination claim
against Carolina. Costs are assessed against Carolina.
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