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Davis-Garett v. Urban Outfitters, Inc.

United States Court of Appeals, Second Circuit

April 8, 2019

BLAIR DAVIS-GARETT, Plaintiff-Appellant,

          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.


         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 ...

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