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 GarayaldeRijos'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 GarayaldeRijos 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 posthire 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 GarayaldeRijos's pleadings to establish a prima facie case at the motion-todismiss 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 prehire 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 GarayaldeRijos'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 GarayaldeRijos'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 GarayaldeRijos'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." OcasioHernández v. Fortuño-Burset, 640 F.3d 1, 14-15 (1st Cir. 2011).

The district court also erred when it found GarayaldeRijos's pleadings inadequate due to its view that alleged causation

for retaliation must be deemed implausible based solely on a fivemonth 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); SánchezRodríguez 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 GarayaldeRijos'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 GarayaldeRijos'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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