Cruz v. Coach Stores Inc.

• Citation: 202 F.3d 560
• Decision Date: 07 October 1999
• Docket Number: No. 98-9654,98-9654
• Parties: (2nd Cir. 2000) YVETTE CRUZ, Plaintiff-Appellant, v. COACH STORES, INC., Defendant-Appellee, DAVID OTANI, WILLIAM BETTS, DIANE LEWIS, SARA LEE CORPORATION, and HERVE HERIVEAUX, Defendants
• Court: U.S. Court of Appeals — Second Circuit

Page 560

202 F.3d 560 (2nd Cir. 2000)

YVETTE CRUZ, Plaintiff-Appellant, v. COACH STORES, INC., Defendant-Appellee, DAVID OTANI, WILLIAM BETTS, DIANE LEWIS, SARA LEE CORPORATION, and HERVE HERIVEAUX, Defendants.

No. 98-9654

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

October 7, 1999, Argued

January 20, 2000, Decided

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

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PETER G. EIKENBERRY, New York, City, (Laurence M. Shanahan, Matthew G. DeOreo, on the brief), for plaintiff-appellant.

LAUREN REITER BRODY, Rosenman & Colin LLP, New York, City, for defendant-appellee.

Before: JACOBS, CALABRESI and SOTOMAYOR, Circuit Judges.

SOTOMAYOR, Circuit Judge:

This appeal concerns plaintiff-appellant Yvette Cruz's claims of race and sex discrimination against her former employer, defendant-appellee Coach Stores, Inc. ("Coach"). Cruz brought this action in 1996, claiming that Coach had violated federal, state, and city civil rights laws by, inter alia, failing to promote her and terminating her because of her race, retaliating against her for exercising Title VII-protected rights, and tolerating an environment of discriminatory harassment. On September 25, 1997, the district court (Jed S. Rakoff, Judge) dismissed Cruz's failure to promote and retaliation claims pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim for relief. On November 17, 1998, the court granted summary judgment to Coach pursuant to Fed. R. Civ. P. 56 on Cruz's remaining claims. See Cruz v. Coach Stores, Inc., 1998 U.S. Dist. LEXIS 18051, 1998 WL 812045 (S.D.N.Y. Nov. 18, 1998). For the reasons that follow, we affirm the district court's dismissal of Cruz's failure to promote and retaliation claims. We also affirm its grant of summary judgment with respect to all claims other than Cruz's charge of hostile work environment harassment. On Cruz's harassment claim, we vacate the district court's judgment and remand the case for further proceedings consistent with this opinion.

BACKGROUND

Yvette Cruz, a Hispanic woman, began working at Coach as a part-time sales associate in 1990. In 1991, she was promoted to a secretarial position, which she held until her termination in 1995. In June of 1994, Cruz alleges, her supervisor informed her that Coach was planning to create a new "Coordinator of Systems Operations" job in January 1995, and promised Cruz that she would receive that position as soon as it became available. Coach never created the position, however, and Cruz remained in her secretarial job until her termination from the company.

Cruz's termination from Coach stemmed from events occurring on November 17, 1995. On that day, Cruz's co-worker, Herve Heriveaux, approached Cruz during her lunch hour and commented that her "nipples [were] erect." An argument ensued between Cruz and Heriveaux, during which Heriveaux stepped extremely close to Cruz and called her a "f ing cunt." Cruz then slapped Heriveaux, who responded by placing her in a headlock. The altercation ended when Cruz's supervisor intervened.

Three days later, following an investigation by Coach's Human Resources Department, both Cruz and Heriveaux were terminated pursuant to Coach's rule against "physical or verbal assault while on company premises." Cruz then filed a timely complaint with the Equal Employment Opportunity Commission, alleging that Coach had terminated her because of her race and charging the company with failure to promote and retaliation. Cruz also claimed that throughout the time she worked at Coach, the company "condoned unpermitted touching by supervisors." Upon receiving a right-to-sue letter, she filed the instant action under 42 U.S.C. 1981 (1994), Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq. (1994), the New York State Human Rights Law, N.Y. exec. Law 290 et seq. (McKinney 1993 & Supp. 1999), and the New York City Administrative Code, N.Y.C. Admin. Code 8-107 (1998). The district court dismissed Cruz's failure to promote and retaliation claims pursuant to Fed. R. Civ. P. 12(b)(6) and granted Coach's summary judgment motion on all remaining claims pursuant to Fed. R. Civ. P. 56. This appeal followed.

DISCUSSION

I. The 12(b)(6) dismissals

We review de novo a 12(b)(6) dismissal for failure to state a claim for relief. See Chance v. Armstrong, I/O, 143 F.3d 698, 701 (2d Cir. 1998). On appeal, we must accept all factual allegations in the complaint as true, and may affirm the district court's dismissal only where it "appears beyond doubt that the plaintiff can prove no set of facts in support of [her] claim which would entitle [her] to relief." Id. (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957)) (internal quotation marks omitted).

A. Failure to promote

Cruz's failure to promote claim rests on her allegation that, because of her race, Coach reneged on its promise to promote her to Coordinator of Systems Operations. The district court dismissed this claim on the ground that Cruz had not alleged the elements of a prima facie case, because she had not claimed that she applied and was qualified for any position that was subsequently filled by a non-minority. We agree.

In order to establish a prima facie case for failure to promote, the plaintiff must allege that: 1) she "is a member of a protected class"; 2) her job performance was satisfactory; 3) she applied for and was denied promotion to a position for which she was qualified; and 4) the position "remained open and the employer continued to seek applicants." Brown v. Coach Stores, Inc., 163 F.3d 706, 709 (2d Cir. 1998) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973)).¹ To meet this prima facie burden, Cruz alleged in her complaint that her supervisor promised her, in June 1994, that she would be promoted to the new "coordinator" position when Coach created that job in January 1995. The company did not create the coordinator position, however, in January 1995 or at any later time. Rather, Cruz alleges, in October 1995, Coach hired two non-minority individuals as "financial analysts" and gave these two employees many of the analytical responsibilities it had previously entrusted to Cruz.

Significantly, Cruz did not allege in her complaint that she ever applied for the financial analyst position or that she was qualified for that position. Nonetheless, Cruz argues that her complaint makes out a prima facie case for failure to promote because the financial analyst and coordinator positions were in fact the same job, and therefore an application for the coordinator position -- which she presumably completed, either formally or informally -- was in effect an application to be a financial analyst. Cruz's complaint, however, is devoid of any language from which the court might draw this conclusion. Although the complaint alleges that "[Cruz's] promised position [as coordinator] was given to the financial analysts," it does not describe the responsibilities of either position, the respective qualifications of Cruz and the financial analysts, or otherwise indicate that the two jobs were equivalent in any way. The complaint thus cannot be read to claim either that the two jobs were identical or that an application for coordinator was an adequate substitute for an analyst application.²

Moreover, nothing in the complaint supports the inference that Cruz was qualified to be a financial analyst. Even taking as true Cruz's allegation that Coach gave some of her responsibilities to the financial analysts, this fact alone does not establish that Cruz was competent to perform all the duties of the analyst job, and nothing else in the complaint helps to demonstrate that point. The complaint contains no information about either the responsibilities of a financial analyst or Cruz's employment skills, information that might have supported the inference that Cruz was fit for the position. Without such information, the complaint cannot be understood to allege, either directly or indirectly, that Cruz was qualified for the job. Absent this allegation, and absent any claim that she applied for the financial analyst position, Cruz's complaint fails to state a prima facie case for failure to promote.

B. Retaliation

Along with the failure to promote claim, Cruz's complaint alleged that Coach terminated her in retaliation for "defend[ing] herself against Heriveaux's sexual harassment and physical assault" in the altercation that ultimately led to her dismissal. Here as well, Cruz's complaint fails to state the elements of a prima facie retaliation claim. Accordingly, we affirm the district court's dismissal of this claim.

To establish a prima facie case for retaliation, a plaintiff must demonstrate "participation in protected activity known to the defendant, an employment action disadvantaging the person engaged in the protected activity, and a causal connection between the protected activity and the adverse employment action." Johnson v. Palma, 931 F.2d 203, 207 (2d Cir. 1991). The term "protected activity" refers to action taken to protest or oppose statutorily prohibited discrimination. See 42 U.S.C. 2000e-3; see also, e.g., Wimmer v. Suffolk County Police Dep't, 176 F.3d 125, 134-35 (2d Cir.) (discussing scope of statute's "protected activity" provision), cert. denied, 145 L. Ed. 2d 310, 120 S. Ct. 398 (1999). In this case, Cruz did not make out a prima facie case of retaliation because she did not claim to have engaged in any "protected activity" within the meaning of the statute. Slapping one's harasser, even assuming arguendo that Cruz did so in response to Title VII-barred harassment, is not a protected activity. While the law is clear that opposition to a Title VII violation need not rise to the level of a formal complaint in order to receive statutory protection, this notion of "opposition" includes activities such as "making complaints to...