Morales-Cruz v. University of Puerto Rico

United States Court of Appeals
For the First Circuit

No. 11-1589

MYRTA B. MORALES-CRUZ,

Plaintiff, Appellant,

v.

UNIVERSITY OF PUERTO RICO ET AL.,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Carmen Consuelo Cerezo, U.S. District Judge]

Before

Lynch, Chief Judge,
Torruella and Selya, Circuit Judges.

Myrta B. Morales-Cruz, pro se, with whom Daliah Lugo Auffant
and Lugo Auffant Law Offices were on brief, for appellant.
María D. Trelles Hernández, with whom Jorge E. Pérez Díaz and
Pietrantoni Méndez & Alvarez LLC were on brief, for appellees.

April 10, 2012
 SELYA, Circuit Judge. Plaintiff-appellant Myrta B.

Morales-Cruz claims that she experienced gender-based

discrimination and retaliation when the University of Puerto Rico

School of Law (UPRLS) refused to extend her probationary period of

employment and, thus, effectively removed her from its faculty.

She sued UPRLS and a number of its officials under Title VII of the

Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2(a), 2000e-3(a). The

district court dismissed her action. After careful consideration,

we affirm.

I. BACKGROUND

This appeal follows a dismissal for failure to state a

claim upon which relief can be granted. See Fed. R. Civ. P.

12(b)(6). Consequently, we draw the facts from the amended

complaint, supplementing them with materials susceptible to

judicial notice. See Haley v. City of Boston, 657 F.3d 39, 44 (1st

Cir. 2011).

UPRLS hired the plaintiff in 2002 as an adjunct

professor. A year later, it offered her the tenure-track position

of assistant professor, which carried with it a potential of tenure

after the successful completion of a five-year probationary period.

During this five-year interval, the plaintiff taught

various courses and, along with a male professor, led the community

development section of the school's Legal Aid Clinic (the Clinic).

At some point, the plaintiff's co-teacher began a sexual dalliance

-2-
with one of the Clinic's female students. The student became

pregnant as a result of this liaison.

In 2008 — near the end of her probationary period — the

plaintiff requested a one-year extension before undergoing her

tenure review. This request went to the personnel committee, a

three-professor body. Although the final arbiter of such matters

is the University's administrative committee, that committee

receives recommendations from both the UPRLS's personnel committee

and its Dean.

While the matter was pending before the personnel

committee, the Dean (defendant-appellee Roberto Aponte Toro) met

with the plaintiff. He questioned her about her knowledge of the

sexual relationship between her co-teacher and the pregnant student

and chastised her for failing to report it to him. At the time

there was no internal regulation either prohibiting student-teacher

relationships or mandating reports about such relationships.

On May 7, 2008, the personnel committee recommended, by

a two-to-one vote, that the plaintiff's extension request be

granted. The dissenter, defendant-appellee Carlos Díaz-Olivo,

wrote a forceful report as to why the extension should be denied.

In this missive, Díaz-Olivo discussed the scandal involving the

pregnant student and concluded that the plaintiff's actions

regarding that matter manifested poor judgment, "personality

flaws," and difficulty handling "complex and sensitive" situations.

-3-
 On May 12, the Dean recommended the extension to the

administrative committee but added that he shared the concerns

expressed in Díaz-Olivo's dissent. He called the plaintiff

"insecure," questioned her judgment, and noted that granting her

tenure would "sentenc[e] the Law School and the University to

thirty years with an intelligent, albeit immature . . . and fragile

. . . resource."

When the plaintiff received word of these comments, she

wrote to defendant-appellee Gladys Escalona, then Chancellor of the

University and the chair of the administrative committee. The

plaintiff says that she sent the letter both to clarify her actions

with respect to the student-teacher relationship and to denounce

the supposedly discriminatory remarks made by others. Shortly

after the Dean learned of this correspondence, he wrote a letter to

the administrative committee reversing his earlier position and

recommending the denial of the one-year extension.

Chancellor Escalona appointed an ad hoc committee to

review the plaintiff's case.1 In the course of the ensuing review,

the plaintiff alleges that the Chancellor, the Dean, Professor

Díaz-Olivo, and certain members of the administrative committee

(also named as defendants) continued to malign her character,

1
The plaintiff claims that the appointment of an ad hoc
committee was a deviation from the University's usual procedures.
She forges no credible link, however, between this allegation and
any claim of either discrimination or retaliation.

-4-
impugn her abilities, and refer to her dismissively. At the end of

the day, the administrative committee voted to deny the extension.

This refusal effectively terminated the plaintiff's employment at

the expiration of the probationary period.

Title VII requires an individual who claims to have

suffered discrimination or retaliation to file an administrative

charge with the Equal Employment Opportunity Commission (EEOC)

prior to commencing a civil action. See 42 U.S.C. § 2000e-5(b),

(e)(1), (f)(1); Clockedile v. N.H. Dep't of Corr., 245 F.3d 1, 3

(1st Cir. 2001). Of course, a Title VII civil action is

"constrained" by the allegations limned in the administrative

charge; that is, "the judicial complaint must bear some close

relation to the allegations presented to the agency." Jorge v.

Rumsfeld, 404 F.3d 556, 565 (1st Cir. 2005).

In this case, the plaintiff seasonably filed an

administrative charge. The defendants' position is that the

charge, as framed, relates solely to retaliation and, thus, the

plaintiff's discrimination claim should be dismissed for non-

exhaustion of administrative remedies. See id. at 564-65.

We do not think that it is necessary for us to enter this

controversy. The charge-filing requirement is mandatory but not

jurisdictional, see id. at 565, and the plaintiff's discrimination

claim is easily resolved on the failure of the pleadings.

-5-
Accordingly, we bypass the question of exhaustion of administrative

remedies.

After obtaining a right-to-sue letter from the EEOC, see

42 U.S.C. § 2000e-5(f)(1), the plaintiff sued UPRLS and the

individual defendants in the federal district court. The operative

pleading is the plaintiff's amended complaint, which alleged

gender-based discrimination, retaliation, and other claims not

pursued on appeal. The defendants moved to dismiss, contending

that the plaintiff had failed to state an actionable claim. See

Fed. R. Civ. P. 12(b)(6). The district court granted the motion.

Morales-Cruz v. Univ. of P.R., 792 F. Supp. 2d 205 (D.P.R. 2011).

This timely appeal followed.

II. ANALYSIS

A familiar standard applies to appellate review of Rule

12(b)(6) dismissal orders. We assay such orders "de novo, assuming

the truth of all well-pleaded facts contained in the operative

version of the complaint and indulging all reasonable inferences in

the plaintiff's favor." Nisselson v. Lernout, 469 F.3d 143, 150

(1st Cir. 2006).

To survive a motion to dismiss, a complaint need contain

only "a short and plain statement of the claim showing that the

pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). Even

though this rule "does not require 'detailed factual allegations,'

. . . it demands more than an unadorned, the-defendant-unlawfully-

-6-
harmed-me accusation." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949

(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555

(2007)). Plausibility is the touchstone by which the sufficiency

of a complaint is gauged. See id. at 1949-50; Twombly, 550 U.S. at

570. To implement the plausibility standard, an inquiring court

first must separate wheat from chaff; that is, the court must

separate the complaint's factual allegations (which must be

accepted as true) from its conclusory legal allegations (which need

not be credited). See Iqbal, 129 S. Ct. at 1949-50. The court

then must determine whether the "factual content . . . allows the

court to draw the reasonable inference that the defendant is liable

for the misconduct alleged." Id. at 1949. "If the factual

allegations in the complaint are too meager, vague, or conclusory

to remove the possibility of relief from the realm of mere

conjecture, the complaint is open to dismissal." SEC v. Tambone,

597 F.3d 436, 442 (1st Cir. 2010) (en banc).

A. Discrimination.

The plaintiff first asserts that the district court

misapplied these requirements in dismissing her claim of

discrimination. Title VII makes it unlawful for an employer "to

discharge any individual, or otherwise to discriminate against any

individual with respect to his compensation, terms, conditions, or

privileges of employment, because of such individual's race, color,

religion, sex, or national origin." 42 U.S.C. § 2000e-2(a)(1). To

-7-
state a claim to relief, a complaint asserting sex discrimination

must plausibly allege that the plaintiff experienced an adverse

employment action taken on the basis of her gender. See id.

In this case, the amended complaint pleads only the

"gender stereotyping" variation of sex-based discrimination. See

Price Waterhouse v. Hopkins, 490 U.S. 228, 250-51 (1989) (plurality

opinion), superseded in part by statute, Civil Rights Act of 1991,

Pub. L. No. 102-166, 105 Stat. 1071; Thomas v. Eastman Kodak Co.,

183 F.3d 38, 59 (1st Cir. 1999). A gender-stereotyping claim

arises when an individual suffers an adverse employment action

because she either conforms or fails to conform to some stereotype

or stereotypes attributable to her gender. See Thomas, 183 F.3d at

59-61; see also Pivirotto v. Innovative Sys., Inc., 191 F.3d 344,

355 (3d Cir. 1999) (observing that Title VII protects against an

employer's decisions to "fir[e] women it perceives as not feminine

enough (or as too feminine)").

In the amended complaint, the plaintiff asserts that she

was unfairly terminated because the Dean and others expected her,

as a woman, to report the student-teacher relationship. This is

the heart of her gender-stereotyping claim2 — but the allegation

2
In her brief on appeal, the plaintiff suggests two other
possible stereotypes: that women should be particularly
disapproving of illicit relationships and that women should be more
moral than men. It is clear beyond hope of contradiction, however,
that "a plaintiff cannot constructively amend h[er] complaint with
an allegation made for the first time in an appellate brief."
Podiatrist Ass'n v. La Cruz Azul de P.R., Inc., 332 F.3d 6, 20 (1st

-8-
that she was held to a different standard because she was a woman

does not follow from any factual content set out in the pleading or

any reasonable inference therefrom. By the same token, the

supposed stereotype of which the plaintiff complains is not one

that, by common knowledge or widely shared perception, is

understood to be attributable to women. To say that women, but not

men, are expected to be forthcoming about the sexual foibles of

others is sheer speculation — and speculation, unaccompanied by any

factual predicate, is not sufficient to confer plausibility. As

the Supreme Court has stated, "[t]hreadbare recitals of the

elements of a cause of action, supported by mere conclusory

statements, do not suffice." Iqbal, 129 S. Ct. at 1949.

Here, moreover, the amended complaint fails to cross the

plausibility threshold for another reason. It alleges no facts

that would support an inference that UPRLS acted on the basis of

gender, which is the centerpiece of a gender-stereotyping claim.

See Price Waterhouse, 490 U.S. at 250-51.

The amended complaint alleges that various officials

described the plaintiff as "fragile," "immature," "unable to handle

complex and sensitive issues," engaged in "twisting the truth," and

exhibiting "lack of judgment." These descriptors are admittedly

unflattering — but they are without exception gender-neutral. All

of them apply equally to persons of either gender and, while they

Cir. 2003).

-9-
might yield the conclusion that the plaintiff's termination was

related to the professor-student fling, they do not support a

reasonable inference that the defendants denied the plaintiff an

extension of her probationary period because of failed gender

stereotype expectations. By definition, terms that convey only

gender-neutral meanings are insufficient to anchor a gender-

stereotyping claim. See Weinstock v. Columbia Univ., 224 F.3d 33,

44 (2d Cir. 2000) (concluding that employer's description of a

female employee using the words "nice" and "nurturing" could not

support a gender-stereotyping claim).

The only gender-specific comment cited by the plaintiff

involves her allegation that the defendants sometimes referred to

her as "that girl" during the course of the extension discussions.

She strives to persuade us that this characterization leads to the

plausible conclusion that her probationary term was not extended

because of stereotypes associated with her gender. We are not

convinced.

This allegation, without more, does not support a

reasonable inference of adverse action based on a gender

stereotype. After all, "Title VII does not prohibit . . . simple

teasing, offhand comments, and isolated incidents (unless extremely

serious)." Faragher v. City of Boca Raton, 524 U.S. 775, 788

(1998) (citations and internal quotation marks omitted). The

plaintiff offers no meaningful context for the use of the term

-10-
"that girl." On this record, that usage does not amount to more

than an offhand comment.

The plaintiff tries to blunt the force of this conclusion

on the basis that she is not making a sexual harassment or hostile

work environment claim. This is wishful thinking; the rule that

stray remarks, without more, cannot ground a cause of action

applies with equal force in the gender-stereotyping context. See

Price Waterhouse, 490 U.S. at 251 ("Remarks at work that are based

on sex stereotypes do not inevitably prove that gender played a

part in a particular employment decision. The plaintiff must show

that the employer actually relied on her gender in making its

decision."); see also Burlington N. & Santa Fe Ry. Co. v. White,

548 U.S. 53, 68 (2006) (noting that Title VII requires courts "to

separate significant from trivial harms"). The plaintiff, a woman

in her mid-40s, may well have found the reference to her as a

"girl" to be offensive, but the antidiscrimination laws "do[] not

create a general civility code for the workplace." Ahern v.

Shinseki, 629 F.3d 49, 59 (1st Cir. 2010); see Oncale v. Sundowner

Offshore Servs., Inc., 523 U.S. 75, 80 (1998).

That ends this aspect of the matter. Stripped to factual

content, the amended complaint fails the test of plausibility. It

states no actionable claim of gender stereotyping or other

discrimination.

-11-
 B. Retaliation.

We turn next to the plaintiff's claim of retaliation.

Title VII makes it unlawful for an employer to take materially

adverse action against an employee "because he has opposed any

practice made an unlawful employment practice by this subchapter."

42 U.S.C. § 2000e-3(a). To state a cause of action under this

portion of the statute, the pleading must contain plausible

allegations indicating that the plaintiff opposed a practice

prohibited by Title VII and suffered an adverse employment action

as a result of that opposition. See id.

The plaintiff alleges that she was retaliated against for

writing to the Chancellor to complain about the "discriminatory"

comments made in the course of her request for an extension. In

support of this allegation, she points out that after she sent her

letter the Dean reversed his position on her extension. This

construct suffers from a fatal flaw: her factual allegations do not

support a reasonable inference that she was engaging in protected

conduct when she opposed the remarks made.

While Title VII shields an employee who opposes conduct

that may not actually prove to be discriminatory, the employee must

at the very least have a "'good faith, reasonable belief that the

underlying challenged actions of the employer violated the law.'"

Fantini v. Salem State Coll., 557 F.3d 22, 32 (1st Cir. 2009)

(quoting Wimmer v. Suffolk Cnty. Police Dep't, 176 F.3d 125, 134

-12-
(2d Cir. 1999)); see Collazo v. Bristol-Myers Squibb Mfg., Inc.,

617 F.3d 39, 48 (1st Cir. 2010). For the reasons already

explained, see supra Part II(A), the facts alleged in the amended

complaint provide no reasonable basis for inferring that the

comments cited reflected gender-based discrimination. See Clark

Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 271 (2001) (per curiam);

Fantini, 557 F.3d at 31-32. Those comments were unarguably gender-

neutral and do not afford an objectively reasonable foundation for

a retaliation action.3 It follows inexorably that the amended

complaint fails to set forth a plausible claim of retaliation.

III. CONCLUSION

We need go no further. It may have been unfair for the

plaintiff to lose her opportunity for continued employment because

she failed to disclose that her co-worker impregnated a student.

But absent a showing of gender-based discrimination or retaliation,

Title VII does not provide a cause of action for such an injustice.

See Ahern, 629 F.3d at 51 (explaining that Title VII is "not

intended to function as a collective panacea for every work-related

experience that is in some respect unjust, unfair, or unpleasant").

Affirmed.

3
It is apparent from the amended complaint that the letter to
the Chancellor was sent prior to the conversations in which the
plaintiff was allegedly referred to as "that girl."

-13-