Brown v. Coach Stores, Inc.

• Decision Date: 16 December 1998
• Docket Number: Docket No. 97-9324
• Citation: 163 F.3d 706,1998 WL 888979
• Parties: 78 Fair Empl.Prac.Cas. (BNA) 917, 74 Empl. Prac. Dec. P 45,682 Marva BROWN, Plaintiff-Appellant, v. COACH STORES, INC., Defendant-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

Page 706

163 F.3d 706

78 Fair Empl.Prac.Cas. (BNA) 917,

74 Empl. Prac. Dec. P 45,682

Marva BROWN, Plaintiff-Appellant, v. COACH STORES, INC., Defendant-Appellee.

Docket No. 97-9324.

United States Court of Appeals Second Circuit.

Argued June 9, 1998.

Decided Dec. 16, 1998.

Peter G. Eikenberry, New York, NY (Michael Valentine, Edward Powers, Law Office of Peter G. Eikenberry, New York, NY, of counsel), for Plaintiff-Appellant.

Stacey B. Creem, New York, N.Y. (Lauren Reiter Brody, Rosenman & Colin LLP, New York, NY, of counsel), for Defendant-Appellee.

Before: NEWMAN and PARKER, Circuit Judges, and CARMAN ^*, Chief Judge, U.S. Ct. of Int'l Trade.

Judge JON O. NEWMAN dissents with a separate opinion.

PARKER, Circuit Judge.

Plaintiff-Appellant Marva Brown appeals from the judgment of the United States District Court for the Southern District of New York (Jed S. Rakoff, Judge ), entered September 22, 1997, dismissing Brown's claims under Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq., 42 U.S.C. §§ 1981, 1981a, N.Y. Exec. Law § 290 et seq. and N.Y. City Admin. Code § 8-107 et seq., that Defendant-Appellee Coach Stores, Inc. ("Coach") discriminated against her on the basis of her race. The district court held that Brown's second amended complaint failed to state a claim because Brown neglected to allege that she applied for, was qualified for and was rejected from, any specific position or positions at Coach. The court also held that Brown failed to adequately allege a claim of disparate impact.

I. BACKGROUND

Marva Brown is an African-American who has worked as a receptionist in Coach's Human Resource Department at its headquarters in Manhattan since 1988. In December 1996, Brown, through her attorney, filed a Notice of Charge of Discrimination with the Equal Employment Opportunity Commission ("EEOC"). In this charge, she claimed that despite repeated requests to be promoted, Coach had refused to promote her and had instead promoted dozens of non-minority employees and "scarcely any" minorities. She also claimed that one of her co-employees at Coach told her that she looked "black like a real nigger" when she returned from a vacation, a comment for which the employee was not sanctioned, and that she was routinely excluded from business meetings and holiday parties held by her department.

In January 1997, Brown filed a complaint in the district court asserting claims under Title VII, the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq., N.Y. Exec. Law § 290 et seq. and N.Y. City Admin. Code § 8-107 et seq. Brown filed an amended complaint dated March 7, 1997, adding claims under 42 U.S.C. §§ 1981, 1981a, 1983. Coach moved to dismiss the amended complaint asserting that it did not state a claim because it failed to allege the dates upon which Brown sought a promotion and the position or positions to which she applied. Coach also argued that the district court lacked jurisdiction over the ADEA claim because it was not raised in Brown's EEOC charge.

At a hearing on the motion to dismiss in April 1997, the district court agreed with Coach that Brown had to specify a particular time when she sought a promotion to a specific position or positions and was denied in favor of a nonminority or she would fail to state a prima facie case of discrimination. The district court dismissed the amended complaint without prejudice while offering to allow Brown a month to engage in discovery prior to filing her second amended complaint. Brown's counsel agreed, however, that he could cure the amended complaint's deficiencies without further discovery and declined the district court's offer.

Brown filed the second amended complaint dated May 12, 1997, removing the ADEA claim and the claim brought under 42 U.S.C. § 1983 but reasserting the remainder of the previous claims. She asserted that "[c]ommencing in approximately 1990 and continuing at least through August of 1996, [she] has repeatedly requested a promotion." Specifically, Brown contended that in August 1995 and August 1996 she requested a promotion during her annual evaluation. According to the second amended complaint, during her employment with Coach she was qualified for promotion to "[d]ozens to hundreds" of open positions including "secretary," "administrative assistant" and "human resources assistant." Brown asserted that she was told repeatedly by supervisors that she was "too valuable in her current position to promote."

Brown alleged that she was told by her supervisors that Coach "seeks to hire and promote people who have a 'Coach look'--the examples to whom her supervisors referred were young non-minority persons." Further, Brown alleged that one of her supervisors made several discriminatory remarks about minorities. The second amended complaint also made allegations which were not asserted in the original EEOC charge regarding Coach's employment practices toward minorities as a whole. Brown points to EEOC statistics which show a low proportion of minority employees in management positions at Coach. Thus, Brown claims that Coach's hiring and promotion practices have a discriminatory impact on minorities.

Coach moved to dismiss the second amended complaint again arguing that Brown had failed to state a prima facie case because she failed to "indicate whether there was any open position at Coach for which she was qualified, she applied and was rejected, and which was given to another person."

The district court granted Coach's motion to dismiss, dismissing the second amended complaint with prejudice. The court found that Brown had failed to state a prima facie case of discrimination under McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), because "[n]owhere ... does the Amended Complaint allege any specific position for which plaintiff applied, was qualified, and was rejected." The court noted that in the hearing on the motion to dismiss, Brown's counsel conceded that " '[t]here is no allegation that Ms. Brown asked at a specific time for a specific job.' "

As to Brown's disparate impact claim, the court found her statistics "very general," noting that they failed to take account of the various types of positions at Coach, the qualifications required for promotion and the relevant minority composition of the applicant pool. The court noted that even if the statistics were sufficient to establish disparities in the relevant workpools, Brown's case would fail because she has not alleged a causal relationship between a Coach policy or practice and the underrepresentation of minorities in certain jobs.

Brown filed a timely notice of appeal to this Court.

II. DISCUSSION

We review de novo the district court's dismissal of the complaint. See Bernheim v. Litt, 79 F.3d 318, 321 (2d Cir.1996). In its review, this Court must "accept the factual allegations of the complaint as true and must draw all reasonable inferences in favor of the plaintiff." Id. Further, we must be mindful that "the level of proof a plaintiff is required to present in order to establish a prima facie case of discrimination is low." de la Cruz v. New York City Human Resources Admin. Dep't of Soc. Servs., 82 F.3d 16, 20 (2d Cir.1996).

Brown argues on appeal that she has adequately pleaded four claims of discrimination: 1) failure to promote, 2) pattern and practice discrimination, 3) disparate impact and 4) hostile environment. We disagree. We hold that Brown's failure to apply and be rejected for a specific position or positions is fatal to her failure to promote and pattern and practice claims. Further, we find Brown's pleadings inadequate to state a disparate impact claim or a hostile environment claim.

A. Failure to Promote Claim

In McDonnell Douglas, the Supreme Court provided a framework for a prima facie claim based on an alleged discriminatory failure to promote as follows ¹: plaintiff must allege that (1) she is a member of a protected class; (2) she "applied and was qualified for a job for which the employer was seeking applicants"; (3) she was rejected for the position; and (4) the position remained open and the employer continued to seek applicants having the plaintiff's qualifications. McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817. However, the McDonnell Douglas Court, in a footnote, acknowledged that "[t]he facts necessarily will vary in Title VII cases, and the specification ... of the prima facie proof required from respondent is not necessarily applicable in every respect to differing factual situations." Id. at 802 n. 13, 93 S.Ct. 1817.

In Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 n. 6, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981), the Supreme Court clarified that the McDonnell Douglas opinion described an "appropriate model for a prima facie case of racial discrimination" but that the "standard is not inflexible." The Court noted, however, that in establishing a prima facie case the plaintiff must show that "she applied for an available position for which she was qualified, but was rejected under circumstances which give rise to an inference of unlawful discrimination." Id. at 253, 101 S.Ct. 1089.

We read McDonnell Douglas and Burdine generally to require a plaintiff to allege that she or he applied for a specific position or positions and was rejected therefrom, rather than merely asserting that on several occasions she or he generally requested promotion. This general mandate ensures that, at the very least, the plaintiff employee alleges a particular adverse employment action, an instance of alleged discrimination, by the employer. Moreover, we believe if generally requesting a promotion in an annual review were sufficient to establish a prima facie case, employers would be unfairly burdened in their promotion efforts. Rather than simply considering individuals who have specifically applied for a promotion, an employer would additionally have to keep...