As Amended April 9, 2014.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO. Hon. Francisco A. Besosa, U.S. District Judge.
Juan M. Frontera Suau for appellant.
Jorge Martí nez-Luciano, with whom Pedro E. Ortiz-Á lvarez, 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.
Before Lynch, Chief Judge, Torruella and Selya, Circuit Judges.
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 as 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 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.
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, 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 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.
Germá n 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 Commonwealth
of Puerto Rico Fire Department. 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 ...