Argued: October 23, 2018
Appeal
from a judgment of the United States District Court for the
Southern District of New York, Thomas P. Griesa, Judge,
dismissing plaintiff's claims of retaliation and
hostile-work-environment discrimination, in violation of the
Age Discrimination in Employment Act of 1967, 29 U.S.C.
§§ 621-634, and state laws. The district court
granted summary judgment in favor of defendants, ruling that
plaintiff failed to adduce evidence (a) of age-related abuse
sufficient to support her claims of discrimination, and (b)
of an adverse employment action sufficient to support her
claims of retaliation. On appeal, plaintiff contends that the
district court erred in failing to view the evidence in the
light most favorable to her and in applying erroneous legal
standards. As to plaintiff's federal claims, we conclude
that the district court erred in refusing to consider
evidence of events that, though they preceded the actionable
time period if viewed as discrete events, remain actionable
as part of a hostile work environment and relevant as
background for a claim of retaliation; that in assessing the
claims of retaliation, the court erroneously applied the
standard applicable to claims of discrimination rather than
claims of retaliation; and that the evidence, viewed in the
light most favorable to plaintiff, sufficed to present
triable issues of material fact as to the claims of hostile
work environment and retaliation. Accordingly, we vacate the
judgment and remand for trial of those claims, and for
further consideration of plaintiff's state-law claims.
Vacated
and remanded.
BRIAN
HELLER, New York, New York (Davida S.Perry, Schwartz Perry
& Heller, on the brief), for Plaintiff-Appellant.
BLAIR
J. ROBINSON, New York, New York (Morgan, Lewis & Bockius,
New York, New York, on the brief), for Defendants-Appellees.
GAIL
S. COLEMAN, Washington, D.C. (James L. Lee, Deputy General
Counsel, Jennifer S. Goldstein, Associate General Counsel,
Elizabeth E. Theran, Assistant General Counsel, Susan L.
Star, Attorney, United States Equal Employment Opportunity
Commission, Washington, D.C., on the brief), for Amicus
Curiae Equal Employment Opportunity Commission in support of
Plaintiff-Appellant.
Outten
& Golden, New York, New York (Darnley D. Stewart, of
counsel), filed a brief for Amicus Curiae National Employment
Lawyers Association/New York in support of
Plaintiff-Appellant.
Before: KATZMANN, Chief Judge, KEARSE and CHIN, Circuit
Judges.
KEARSE, CIRCUIT JUDGE
Plaintiff
Blair Davis-Garett ("Garett") appeals from a
judgment of the United States District Court for the Southern
District of New York, Thomas P. Griesa, Judge,
dismissing her complaint alleging principally that her former
employer, defendants Anthropologie, Inc.
("Anthropologie"), and its corporate parent Urban
Outfitters, Inc., discriminated against her on the basis of
age by maintaining a hostile work environment and retaliated
against her for lodging discrimination complaints, in
violation of the Age Discrimination in Employment Act of
1967, 29 U.S.C. §§ 621-634 ("ADEA"), the
New York State Human Rights Law, N.Y. Exec. Law § 290
et seq. ("NYSHRL"), and the Connecticut
Fair Employment Practices Act, Conn. Gen. Stat. § 46a-51
et seq. ("CFEPA"). The district court
granted summary judgment in favor of defendants, ruling
principally that Garett failed to adduce sufficient evidence
of age-related abuse to create triable issues of fact with
respect to her ADEA claims of hostile work environment, and
failed to adduce sufficient evidence of an adverse employment
action to support to her ADEA claims of retaliation. On
appeal, Garett contends that in dismissing her claims the
district court erred by failing to view the evidence in the
light most favorable to her, by refusing to take into account
certain evidence that predated the actionable period, and by
applying an erroneous legal standard to the claims of
retaliation. For the reasons that follow, we agree; we vacate
the judgment and remand for further proceedings, including
trial of the federal claims, and additional consideration of
the state-law claims.
I.
BACKGROUND
From
September 2012 until early October 2013 Garett was employed
by Anthropologie, a nationwide retailer that sells
women's apparel and accessories, home furnishings, decor,
gifts, and "found objects." During that period, she
worked at three Anthropologie stores: first at the Roosevelt
Field Mall on Long Island in New York ("Roosevelt
Field"), next in White Plains, New York, at the
Westchester Mall ("White Plains"), and finally in
Greenwich, Connecticut. The record developed during
discovery, which includes Garett's deposition testimony,
her affidavit, and deposition testimony and/or declarations
from several managers at Anthropologie, reveals many factual
disputes, chiefly as to who said what to whom, and when. The
following description of conversations and events, except
where indicated, takes the record in the light most favorable
to Garett, based principally on admissible factual assertions
in her deposition and her affidavit.
A.
The Roosevelt Field Store
When
Garett began working at Anthropologie's Roosevelt Field
store in September 2012-as a part-time customer associate-she
was 54 years of age, significantly older than most of the
other sales associates, who were in their 20's. That
store's overall manager, Jennifer Orr, was approximately
28 years of age, and most of the other managers were in their
20's or early 30's. Customer associates were
responsible for assisting customers with purchasing, both on
the sales floor and in the fitting room; but
Anthropologie's policies and procedures called for such
sales persons to be rotated hourly through the various
sections of the store in order to gain a range of experience.
Younger sales associates were given that training. Garett,
however, despite her repeated requests to Orr for assignments
that would provide her with experience in other aspects of
store operations and allow her to advance in the company, was
assigned to spend most of her working hours in the fitting
room. (See Deposition of Blair Davis-Garett
("Garett Dep.") at 35-40, 54-55; Affidavit of Blair
Davis-Garett dated March 22, 2017 ("Garett Aff."),
¶¶ 6-7.)
In
early 2013, for business reasons, Anthropologie's
Roosevelt Field store was permanently closed. Some employees,
including Garett, were transferred to other Anthropologie
locations. Younger transferred employees who lived on Long
Island were reassigned to Anthropologie stores on Long
Island. Garett, who also lived on Long Island, was reassigned
to the Anthropologie store in White Plains, more than 30
miles away. When she sought reassignment to one of the closer
locations, she was told that decisions to put others at those
locations had already been made, and that White Plains was
her "only option." (Garett Aff. ¶ 9.) Garett
says she was later told that she was sent to the White Plains
store "because of the 'demographics in White Plains,
'" i.e., "that the people that shopped
in the store were older and that I was old and that is why I
was transferred there." (E.g., id.
¶ 23 (attributing the quoted statements to White Plains
store manager Kelly Bentley).)
B.
The White Plains Store
Garett
became a sales associate at Anthropologie's White Plains
store in late January 2013-still part-time-reporting to store
manager Kelly Bentley, who was approximately 35 years of age.
Garett was again assigned to the fitting room for the
majority of her shifts and received no training. In addition,
Garett was assigned the least desirable duties. When
customers left behind unsanitary trash or waste, Garett was
instructed to clean it up-an assignment she attributed to her
age. (See, e.g., Garett Aff. ¶¶
15-17.) Garett testified that she was "ostracized"
by her coworkers (Garett Dep. 84), and that they repeatedly
called her "'Mom'" or "'Mommy,
'" despite her telling them that this was not
appropriate in a workplace (Garett Aff. ¶ 14;
see Garett Dep. 86-91). They also asked her to take
care of their cuts, bruises, and other ills; and they
consulted her about their personal problems. (See
Garett Aff. ¶ 14.)
In
March 2013, Garett became a full-time customer associate at
the White Plains store. Her responsibilities and duties
remained unchanged; she was assigned principally to the
fitting room and was given no training. (See id.
¶ 18.) In about June 2013, Garett learned of an opening
in the position of apparel supervisor, and she told Bentley
she was interested in applying. (See id. ¶ 21.)
Garett testified that in response,
Kelly took me out of the store. We went to . . . the remote
storeroom. . . . And she told me that it was
completely impossible, that I didn't have the energy or
the stamina, that I was too old for the job.
She said, look around you. Everybody in the company is
young. She said, look at the district manager; she's
really young. She laughed. . . . She said . . . you would
never be able to do it, you don't have the energy. . . .
You're too old. She said, the only reason
you were sent here is because of the demographics here,
that it's-the people that shop here are older and
you're old, and that's why they sent you here.
And you would never be able to handle being a manager.
She said, how are you going to be able to handle all the
closing and the openings? You'll never be able to do it.
(Garett Dep. 112-13 (emphases added); see,
e.g., Garett Aff. ¶ 22 ("Bentley . . . .
said that I was 'too old for the job'" and
"'You will never be able to do it. You don't
have the energy.'" (emphases omitted)).)
Garett,
hurt by Bentley's comments, called Anthropologie's
anonymous employee hotline and left a voicemail message
stating that her manager had made disparaging comments about
her age. (See Garett Aff. ¶¶ 24-25.)
Garett testified that she then received a call from district
manager Amy Shearer, who was responsible for handling hotline
complaints; that Shearer said Bentley's statements were
"'terrible'"; and that Shearer said she
would speak to Bentley. (Id. ¶ 26; see
Garett Dep. 123-24.) Shortly thereafter, Garett was promoted
to the apparel supervisor position.
In her
new position as apparel supervisor, Garett reported to
Bentley and to Kara Fitzpatrick, the store's apparel
manager. Bentley was hostile to Garett, intimidating and
unfair in her criticisms. (See, e.g.,
Garett Aff. ¶¶ 33, 42.) Garett made no progress.
Despite her promotion, she remained consigned to the fitting
room for nearly all of her shifts (see Garett Dep.
80); and she was assigned "the least desirable tasks and
hours" (Garett Aff. ¶ 33). In her first 20 shifts
as apparel supervisor, Garett was required to open the store
on 10 consecutive days and then to close the store on 10
consecutive nights, "a very difficult and exhausting
task." (Id.) Garett later learned that no other
supervisor had ever been asked to work such a demanding
schedule. (See id.)
Garett
was increasingly isolated in her new position. Management
group meetings were scheduled in her absence. While younger
employees received training opportunities on payroll and
other managerial functions, Garett was required to learn the
job on her own. And Fitzpatrick criticized her
"'speed'" and "'pace'"
"almost daily." (Id. ¶¶ 35-36.)
About 10 days after her promotion, Garett was called into
Bentley's office and berated by both Bentley and
Fitzpatrick:
[They] told me that I was doing a terrible job, that I was
the worst apparel supervisor that they had ever seen in their
lives, that I was not cut out to do the job . . . that my
energy level, my pace was too slow . . . .
(Garett Dep. 144-45.)
On July
8, Garett called the employee hotline to complain about her
treatment by her supervisors. Bentley subsequently received a
disciplinary warning that cited three instances of her
unsatisfactory performance. Two related to store security
infractions observed on June 3 and July 16. The other,
without mentioning Garett's name, described her July 8
complaints about Bentley's lack of support and
constructive feedback in the training of "a newly
promoted supervisor"; and it added that "the
supervisor mentioned that Kelly has made comments about her
age and has questioned her ability to have the energy to
manage the selling floor." (Garett Aff. Exhibit F.)
1.
The Edgewater Application
In
early August, Garett learned that there was an opening in the
apparel supervisor position at the Anthropologie store in
Edgewater, New Jersey. As she and her husband were planning
to move from Long Island to Manhattan, and the commute to
Edgewater would be more convenient, Garett applied for that
position and asked her district manager Shearer to approve
her transfer to Edgewater. Although requests by younger
coworkers for transfers were routinely processed and granted
promptly, Garett heard nothing from Shearer for several
weeks. Toward the end of August, Garett called the
Anthropologie employee hotline to complain about how her
request was being handled and about Shearer in particular.
(See Garett Aff. ¶ 45.)
In
early September, Garett was interviewed for the Edgewater
store apparel supervisor position by Jen Ernst, the district
manager for New Jersey. According to Garett, the interview
"went extremely well," and "Ernst clearly and
distinctly offered me the job" and said she would
contact Bentley to arrange for the transfer. (Id.
¶¶ 46-47.)
However,
Garett was not transferred to Edgewater. Soon after
Garett's Edgewater interview, Shearer received a call
from Anthropologie's regional manager Jen Berry, who
informed her of Garett's late-August hotline call and
complaint about Shearer's handling of Garett's
transfer request. (See id. ¶¶ 52-53.) It
was in this telephone conversation that the decision not to
transfer Garett to the Edgewater store was made. (See
id. ¶ 54; Deposition of Amy Shearer ("Shearer
Dep.") at 79-80.) Although Garett testified in her
deposition that she did not know who made the decision to
deny approval of her transfer to Edgewater (see
Garett Dep. 163), she inferred in her affidavit that it was a
"retaliat[ory]" decision made by "Shearer
instantly" upon learning of Garett's complaint
against her (Garett Aff. ¶ 54).
Instead
of being transferred to Edgewater, Garett was transferred to
the Anthropologie store in Greenwich, Connecticut, a location
for which she had never applied. According to Garett,
[s]oon after my call to [the Anthropologie] hotline, Bentley
called me into her office and told me that my "transfer
had come through." She then went on to advise me that I
would not be going to the Edgewater store where I had been
offered a job. Instead, I would be going to the Greenwich,
Connecticut store, which I had never before discussed or
expressed any interest in being assigned. Bentley added that
...