# Marva BROWN, Plaintiff-Appellant, v. COACH STORES, INC., Defendant-Appellee > Court of Appeals for the Second Circuit · December 16, 1998 · 163 F.3d 706 URL: https://www.frixlaw.com/law-library/cases/9491745 ## Case - **Full name:** 78 Fair empl.prac.cas. (Bna) 917, 74 Empl. Prac. Dec. P 45,682 Marva Brown v. Coach Stores, Inc. - **Court:** Court of Appeals for the Second Circuit - **Decided:** December 16, 1998 - **Citations:** 163 F.3d 706; 74 Empl. Prac. Dec. (CCH) 45,682; 78 Fair Empl. Prac. Cas. (BNA) 917; 1998 U.S. App. LEXIS 31375; 1998 WL 888979 - **Precedential status:** Published - **Opinion:** Dissent by Newman - **Judges:** Newman, Parker, Carman, Trade - **Cited by:** 336 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9491745 ## How later opinions describe it (automated extraction) - stating that general expressions of interest cannot be sufficient to state a Title VII claim because such a result would “unfairly burden” employers by requiring them “to keep track of all employees who have generally expressed an interest in promotion and consider each of the… - holding that to state a claim for failure to promote, a plaintiff must “allege that she or he applied for a specific position or positions and was rejected therefrom, rather than merely assert[] that on several occasions she or he generally requested promotion” - holding that the plaintiff failed to allege a hostile work environment claim on the basis of allegations “that one [of the plaintiff’s] supervisor[s] made, on occasion, racist remarks and [that] one such comment was directed at [the plaintiff]” - holding that "plaintiff's general expression of interest for ... a [particular] position [wa]s not sufficient to satisfy the application requirement” - finding that disparate-impact claim was related to the failure-to-promote claim because the court "would expect that the [investigation] would have assessed [the employer's] promotion policies and their effect on minority employees" ## Opinion text JON O. NEWMAN, Circuit Judge, dissenting: Departing from the settled law of all the circuits to have considered the issue, the Court today decides that the complaint of a Title VII plaintiff, alleging discrimination in the denial of promotion to unposted positions, must be dismissed if the plaintiff does not allege that she explicitly applied for one or more specific positions. The other circuits, following the Supreme Court’s general principle that a specific application is not always required in Title VII cases, see International Brotherhood of Teamsters v. United States, 431 U.S. 324, 363-64 , 97 S.Ct. 1843 , 52 L.Ed.2d 396 (1977), have quite properly ruled that, with respect to unposted positions, reasonable efforts to make the employer aware of an employee’s interest in promotion suffice at the pleading stage, with the reasonableness of the employee’s efforts to communicate her interest to be determined after presentation of evidence. See Chambers v. Wynne School District, 909 F.2d 1214, 1217 (8th Cir.1990); E.E.O.C. v. Metal Service Co., 892 F.2d 341, 348-49 (3d Cir.1990); Holsey v. Armour & Co., 743 F.2d 199, 208-09 (4th Cir.1984); Paxton v. Union National Bank, 688 F.2d 552, 568 (8th Cir.1982). I respectfully dissent from the Court’s unprecedented and ill-advised decision. Marva Brown alleges that for several years she has been denied promotion from her job as receptionist at Coach Stores, Inc. (“Coach”) because she is an African-American. The Court rejects her complaint because she has not alleged a specific position or positions, for .which she applied. Though an identification of specific positions might well be required of a Title VII plaintiff claiming racially motivated denial of promotion to posted positions, Brown has alleged that a practice of her employer is “[infrequent postings of available positions,” Amended Complaint ¶ 39(a), particularly positions not requiring a college degree, id. ¶ 25(b). Moreover, she has also alleged that *714 • at her annual performance reviews in 1995 and 1996 and on various other occasions from 1990 to 1994, she has requested promotions, Amended Complaint ¶¶ 16,17; • she is qualified for several positions above the rank of receptionist, including secretary, administrative assistant, and human resources assistant, id. ¶ 19; • dozens of positions for secretary, administrative assistant, and human resources assistant have been filled by non-minority Coach employees and non-minority persons hired laterally, id., ¶¶ 19, 20; • Brown’s supervisors, to whom she made her requests for promotion, told her that she is “too valuable in her current position to promote,” id. ¶ 18. By requiring identification of specific positions for which Brown applied and was denied promotion, and dismissing this complaint for lack of such specificity, the Court has denied Brown the benefit of reasonable inferences that the Court acknowledges “must” be drawn in her favor at this preliminary stage of the case. See Bernheim v. Litt, 79 F.3d 318, 321 (2d Cir.1996). For example, the Court faults Brown for not alleging that she “was not aware of positions, posted or not, as they came open.” 163 F.3d at 710. Surely a reasonable inference from an allegation that “[ijnfrequent postings of available positions” were a practice of her employer, see Amended Complaint ¶ 39(a), is that Brown was unaware of unposted positions. If development of the facts should reveal that the availability of positions to which Brown wanted to be promoted was well known throughout the company, even without formal posting, her claim might well fail at trial, or even be subject to summary judgment, if the facts of widespread knowledge of job availability are undisputed. The Court also relies on Brown’s allegation that she had never been promoted despite “[djozens to hundreds of positions being open" for which she was qualified. Id. ¶ 21(d) (emphasis added). Reading this allegation in the light most unfavorable to the plaintiff, the Court takes the word “open” to mean that the positions were known to be open beforehand and therefore available for specific applications. But the favorable inference to which the plaintiff is entitled from this allegation, coupled with the allegation of a company practice of infrequent postings, is that these positions became, but did not necessarily remain, open; they were filled without posting; and their “openness” was not known to potential applicants. With respect to unposted positions at Coach, the Court’s dismissal creates a pleading rule for Title VII plaintiffs that is impossible to meet before the position is filled and pointless to be met after the position has been filled. An employee cannot be expected to apply for a particular position that is currently filled, nor, in the absence of posting, to have advance knowledge that a particular position is soon to become available. If, on the other hand, the Court deems the complaint deficient because Brown failed to identify particular unposted positions after they were filled, it has created a needless barrier for Title VII plaintiffs, but, in any event, one that Brown should now be afforded an opportunity to meet by a further chance to amend. Before this decision, it was not the law that employees denied promotion to unposted positions had to identify those positions after they were filled. If this is now the law, Brown should be afforded an opportunity to amend in order to identify, for example, the positions of secretary to named personnel that were filled by non-minorities. Apparently finding no decision upholding, at the pleading stage, the dismissal of a Title VII complaint for lack of an allegation that the plaintiff applied for promotion to an un-posted position, the Court relegates to a footnote and endeavors to distinguish the four court of appeals decisions, Chambers, Metal Service, Holsey, and Paxton , that provide substantial support for the sufficiency of Brown’s complaint. See 163 F.3d at 710 n. 2. These decisions support Brown because in all four cases, the complaints were not dismissed at the pleading stage, despite the lack of an allegation of an application for a specific un-posted position, and the job-seekers were permitted to present evidence of the efforts they made to make their potential employers aware of their interest. After evidence was presented, one plaintiffs efforts were *715 deemed inadequate, and the minimal efforts of three others were deemed sufficient. In Chambers , a finding that the plaintiffs efforts were insufficient was held not to be clearly erroneous on evidence that the plaintiff made “no attempt” to inform the defendant of her interest in one position, see Chambers, 909 F.2d at 1215 , and made no further inquiry after becoming aware that two specific positions were to be filled, see id. at 1217 . In Metal Service, the absence of a formal application for entry-level employment was held not to warrant dismissal of a Title VII suit. The plaintiff EEOC had presented evidence in its direct case to show that the job-seekers “did everything reasonably possible to make known to [the potential employer] their interest in applying for a job,” 892 F.2d at 349 (footnote omitted), and the Third Circuit reversed the District Court’s entry of a directed verdict for the defendant. In Holsey , a plaintiffs “casual inquiry” concerning an unposted position was ruled sufficient to alert the employer to the plaintiffs interest in a promotion. See Hol-sey, 743 F.2d at 208 . In Paxton , a plaintiffs indication to a manager of his “desire to advance” in the employer’s computer center was ruled sufficient to alert the employer to the plaintiffs interest in promotion to the unposted position of lead control clerk. See Paxton, 688 F.2d at 568 . The Court’s effort to distinguish these four decisions is unpersuasive. Chambers is “distinguished” because the evidence at trial showed that the plaintiff knew of the position at issue and did not apply, but Brown has had no trial and the reasonable inference from her complaint alleging infrequent postings is that she did not know about unposted positions. Metal Service is “distinguished” because the plaintiffs followed the company’s procedures for applying for jobs, but the reasonableness of the plaintiffs’ application efforts was determined after all the evidence was presented at trial, not at the pleading stage as the Court does with respect to Brown. Holsey is “distinguished” because a company representative testified that talking with a supervisor was one way of expressing interest in a promotion, but Brown’s complaint alleges that she requested promotions during annual performance reviews by supervisors. Paxton is “distinguished” because the plaintiff did not hear about the unposted position until it was filled, but that is precisely the reasonable inference from Brown’s complaint, at least until some discovery shows that she had prior knowledge of the unposted positions. All of these decisions support the proposition that the lack of an application for promotion to a specific position is not a ground for dismissal of a Title VII complaint at the pleading stage where the complaint alleges (a) that the position is not posted and (b) that the plaintiff made efforts to make the employer aware of her interest in a promotion. The allegations of Brown’s complaint easily meet this standard. See also Abrams v. Baylor College of Medicine, 581 F.Supp. 1570, 1579 (S.D.Tex.1984) (informal communication of desire to participate in advancement program sufficient), aff'd in part and rev’d in part on other grounds, 805 F.2d 528 (5th Cir.1986); Ferguson v. E.I. duPont de Nemours and Co., 560 F.Supp. 1172, 1193 (D.Del.1983) (“generalized expression of interest [to supervisor] can be considered an application”); cf. Teamsters, 431 U.S. at 363-64 , 97 S.Ct. 1843 (employee’s failure to apply for job “not an inexorable bar” to award of retroactive seniority). The Court asserts that it “cannot draw the inference” that Brown was unaware of tin-posted positions because some positions were posted. See 163 F.3d at 710 n. 2. I cannot understand how the employer’s posting of some positions can possibly defeat Brown’s claim that she was unaware of those positions that were not posted. Where some positions are posted, the most reasonable inference is that employees are unaware of those positions that are not posted. Moreover, the Court’s dismissal has denied Brown the opportunity to present evidence from which such an inference may be drawn. In any event, whether such an inference is to be drawn is a decision for a fact-finder considering the evidence, not for an appellate court assessing only the complaint. At this stage, Brown is entitled to have her complaint read with all reasonable inferences drawn in her favor. See Bemheim, 79 F.3d at 321 . Her complaint “should not be dismissed for fail *716 ure to state a claim unless it appears beyond doubt that [she] can prove no set of facts in support of [her] claim which would entitle [her] to relief.” Conley v. Gibson, 355 U.S. 41 , 45^6, 78 S.Ct. 99 , 2 L.Ed.2d 80 (1957). There is no basis for doubt at this stage that Brown can testify that she was unaware of unposted positions. Thus, until today, it appears that no court has dismissed at the pleading stage a complaint claiming discrimination in promotion to unposted positions for lack of an allegation of an application for a specific position. The law elsewhere is precisely to the contrary, allowing plaintiffs to proceed past the pleading stage so that they can present evidence of their efforts to make them interest known to their employer. In the District Court, the Trial Judge expressed concern that if a formal application for a specific position were not required to be alleged in the complaint, a plaintiff interested in 17 jobs for which she was qualified might receive damages for all 17 jobs. See Transcript of July 17, 1997, at 20. That apprehension is unfounded. If Brown establishes a discriminatory lack of promotion, her damages would be limited to one position, perhaps based on the average wage of the positions for which she was qualified, or even limited to the lowest paying position. Moreover, even without damages, her relief could include an injunction requiring consideration for the next available position without regard to race. Though Brown’s allegations that she repeatedly made her supervisors aware of her interest in promotions to unposted positions should suffice to withstand dismissal, her complaint is also sufficient on the alternative ground that the alleged circumstances show the futility of specific applications. As the Court acknowledges, the Supreme Court has recognized that a nonapplicant may proceed with a Title VII claim where the plaintiff was “deterred from applying for the job by the employer’s discriminatory practices.” Teamsters, 431 U.S. at 367-68 , 97 S.Ct. 1843 . This Court has also recognized that those facing an “entrenched discriminatory system” are “not required to keep beating their heads against the wall by reapplying.” Grant v. Bethlehem Steel Corp., 635 F.2d 1007, 1017 (2d Cir.1980); see Berkman v. City of New York, 705 F.2d 584, 594 (2d Cir.1983) (“Those who have been deterred by a discriminatory practice from applying for employment are as much victims of discrimination as are actual applicants whom the practice has caused to be rejected.”). Brown has made numerous allegations of Coach’s discriminatory employment practices. Amended Complaint ¶¶ 33(a)-(h). The Court initially rejects the “futility” doctrine of Teamsters and Grant by quoting extensively from a treatise writer who believes that what the Supreme Court said in Teamsters should apply only to class actions. See 1 Lex K. Larson, Employment Discrimination § 8.02[2], at 8-30-31 (2d ed.1997). However, neither the Supreme Court in Teamsters nor this Court in Grant specified that the “futility” principle is limited to class actions. Even if it were, Brown has brought her suit as a class action. See Amended Complaint ¶¶ 50-53. Apart from Larson’s novel theory, the Court considers “questionable” the adequacy of Brown’s pleading that Coach’s pattern of discrimination discouraged her from applying for posted positions. In fact, her allegation is entirely clear: Since approximately 1995 Ms. Brown has been so discouraged from making applications for positions at Coach by reason of Coach[’]s discriminatory policies and practices that she ceased making application for individual positions or approaching individual supervisors as positions arose— rather Ms. Brown has repeatedly asked her direct supervisor for promotion from her receptionist position once a year at her annual review in August. Amended Complaint ¶ 35. The Court distorts the meaning of this allegation by suggesting that Brown’s generalized requests for promotion, made at her annual review, “belie[ ] the notion that a specific application would have been in vain.” 163 F.3d at 712. On the contrary, her entirely valid point, precisely pleaded, is that she made general promotion requests to her immediate supervisors because the company’s discriminatory employment practices discouraged her from applying to other supervisors as specific positions arose. *717 The Court also rejects Brown’s “futility argument by suggesting that there is an inconsistency between my invocation of the “futility” doctrine and my prior conclusion that Brown’s complaint adequately alleges unawareness of unposted positions. 163 F.3d 711 n. 3. There is no inconsistency because two different groups of positions are involved. Brown’s complaint is fairly to be understood as alleging that she was unaware of many unposted positions and that she was discouraged by discrimination from applying for any unposted positions of which she might have become aware. In any event, even if Brown’s “futility” contention is unavailing, rejection of that contention does not defeat her basic claim that she is not required to plead that she applied for (or was discouraged from applying for) unposted positions. This plaintiff has made serious allegations of discrimination. She alleges that when she returned from a Caribbean vacation, one of her supervisors said that “she was black like a real nigger.” Amended Complaint ¶23. Coach’s Human Resources Manager frequently referred to Hispanic employees as “spies” and rejected a raise for an Hispanic employee by telling the employee’s supervisor, “If he doesn’t get a raise; where is he going to go? To McDonald’s and sweep the floor? — that’s all they can do.” Id. ¶ 30(a), (b). Brown has been told by her supervisors that Coach seeks to promote people who have a “Coach look” and those indicated as having the “Coach look” were non-minority persons. Id. ¶ 22(b). She has been required to train non-minority employees, but never minority employees, to be receptionists, and they have been promoted. Id. ¶ 22(a). Coach’s practice of encouraging minority employees to leave after five years is so well known that minority employees hold parties for minority employees who have reached the five-year mark. Id. ¶ 25(a). Brown was recently asked whether she “would not be happier leaving Coach.” Id. ¶ 22(d). I dissent from the Court’s refusal to give Marva Brown her day in court. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9491745. Public record. Not legal advice.