Blair Davis-Carett v. Urban Outfitters, Inc.; Anthropologie, Inc.

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.



* * *

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

3

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.

4

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.

5

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

6

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

7

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

8

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

9

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

10

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

11

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).

12

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 I would "love" Greenwich and

that "the demographics are perfect" for me.

. . . I called Shearer and asked why I was being sent to

Greenwich instead of Edgewater, where the District Manager had

already offered me a job. Shearer became angry and said, "That's

your only choice or you are fired" and, "It's Greenwich or

nothing."

(Id. ¶¶ 55–56; see Garett Dep. 164–65.)

2. Defendants' Version of Garett's Treatment in White Plains

Defendants dispute, inter alia, Garett's account of how she was treated

at the White Plains store and her view of how her promotion to apparel supervisor

in White Plains came about. They also offer business explanations for the denial of

her requested transfer to Edgewater and for her reassignment to Greenwich.

13

As to White Plains, Bentley denied making the June 2013 age-related

statements—or any statements directed at Garett's age—that Garett described in her

deposition and affidavit. (See Declaration of Kelly Bentley dated February 20, 2017,

¶¶ 13–14.) Bentley said she had provided Garett with constructive feedback as to

how quickly she should be managing the selling floor (see id. ¶ 16), but said she had

not given Garett onerous, distasteful, or less desirable assignments as Garett claimed,

had not made the alleged statement about Garett and Greenwich demographics, and

had not made any comments at any time about or relating to Garett's age (see id.

¶¶ 11–12, 14, 19).

Despite Garett's assertion that she promptly complained on the company

hotline of explicitly age-discriminatory statements by Bentley in June 2013,

Anthropologie says it has no knowledge of any hotline complaint by Garett in June.

(See Defendants' Reply to Plaintiff's Response to Defendants' Statement of

Undisputed Material Facts Pursuant to Local Rule 56.1 ¶ 41.) Its earliest record of a

complaint by Garett is a July 8 message from an anonymous caller (leaving a

telephone number) who reported that her manager was abusing her by intimidating

14

her, picking on her, and demanding performance that exceeded what was demanded

of everyone else.

In contrast to Garett's assertion that she had received a return call from

Shearer in June in response to a hotline complaint about Bentley's age-demeaning

comments, Shearer testified that the first contact she had with Garett occurred on July

9, when she called the number provided in the July 8 anonymous complaint and

reached Garett. (See Shearer Dep. 26–31.) In that conversation, Garett identified her

position as a "supervisor" at the White Plains store (id. at 31)—a position she had been

given in June (see, e.g., Garett Aff. ¶ 34). Shearer testified that she had no knowledge

of how Garett came to be promoted to apparel supervisor. (See Shearer Dep. 76.)

Shearer testified that in the July 9 conversation, Garett complained about

Bentley's criticisms that Garett's work was too slow, and that Garett interpreted those

complaints as age discrimination. (See, e.g., id. at 58–59, 64–65.) A few days

thereafter, Shearer relayed Garett's complaints to Bentley; Bentley acknowledged

giving Garett feedback about "how quickly she was walking the floor" and "how

quickly she was opening and closing the office" but denied making any age-based

comments. (Id. at 46–47.) Shearer then again spoke with Garett and asked whether

15

she wanted to transfer to another store; Garett responded that she preferred to stay

at the White Plains store and "try to work it out" so that she could move up in the

company. (Id. at 73–75.) A couple of weeks later, Garett spoke with Shearer again

and this time said she was not comfortable staying at White Plains; Garett said she

was interested in transferring to the store in Edgewater. (See id. at 75–77.)

Edgewater was not part of Shearer's district, and she told Garett she

would call New Jersey district manager Jen Ernst about Garett's interest. (Shearer

made the call but had no role in the Edgewater interview process, see id. at 77–78.)

Some weeks later, regional manager Berry called Shearer to discuss

Garett's request for that transfer and informed her that there were personnel

problems at Edgewater—the details of which were not disclosed to Shearer—that

made a transfer of Garett to that store unwise. (See Shearer Dep. 79.) Those

problems, as described by Ernst during this litigation, included the fact that when

Ernst interviewed Garett for the Edgewater store there was no functioning store

manager. One had been appointed but was in the midst of a five-day training period;

and then, two days after she finished her training and started her position, she

admitted to having stolen inventory from the Anthropologie store in White Plains, at

16

which she was previously employed. Her employment at Edgewater was promptly

terminated. (See Deposition of Jennifer Ernst at 18.) Ernst testified that she did not

offer Garett the job of apparel supervisor, and that the final decision had to await an

interview by the new store manager. (See id. at 44–45.)

Shearer testified that she and Berry, "knowing that [Garett] had had an

uncomfortable situation" at the White Plains store, discussed finding another location

for her. (Shearer Dep. 79.) Shortly thereafter, Shearer spoke with Garett and

informed her that she would not be transferred to Edgewater because that transfer

would not be in Garett's best interests. However, because there was an

Anthropologie store in Greenwich, which was not far from White Plains, Shearer

suggested that Garett transfer to the Greenwich store, which was managed by the

former Roosevelt Field manager Orr, with whom Garett had had a good relationship.

(See id. at 85; see generally January 15, 2013 email from Garett to Orr ("Jen, Once again

I really want to say thank you for all you have done for me, and all that I have learned

from you. I truly have the deepest respect for you, not only as a manager, but also,

as an individual. Most importantly, you taught me how to handle every situation

17

with grace. A quality you embody. We are all moving on, but I hope we will have

the opportunity to work together again. It was amazing! Blair").)

Shearer testified that Garett was initially "confused" about the prospect

of going to Greenwich because she preferred the Edgewater location and felt that her

interview with Ernst had gone well. (Shearer Dep. 84–86.) Shearer denied ever

telling Garett that a transfer to Greenwich was her only option or she would be fired.

(See id. at 89.)

C. The Greenwich Store

Garett began working at the Greenwich store, managed by Orr, in

September 2013. Although Garett retained the title of apparel supervisor, the

Greenwich store already had an apparel supervisor, and Garett was given none of the

position's supervisory responsibilities "other than closing and opening the store[],

which no one wants to do." (Garett Aff. ¶ 65.) Garett was "basically ignored" by Orr,

was denied training opportunities, and was "again relegated to the fitting room." (Id.

¶ 63.)

18

Garett's tenure at Greenwich lasted only a few weeks. On Thursday

October 3, Garett was responsible for closing the store. At about 7:30 that evening,

she and two other employees were the only ones in the store when a "kind of scruffy

man" came in and asked to see lamps; he was very agitated and was acting strangely.

(Garett Dep. 172–74.) He left the store and reentered several times, and he angrily

"shushed" a sales associate while on his cell phone. (Id. at 178–82.) Garett knew that

the store "had had a lot of shoplifters the previous two weeks" (id. at 178–79), and she

observed the man walk around the store "[a]s if he was—he was kind of casing the

place"; she "was concerned that he may eventually either shop lift or eventually wait

for the doors to close and remain in the store and—and steal" (id. at 180). Garett

testified that "[t]he girls were extremely frightened" and she decided to call the

nonemergency number for the Greenwich police. (Id. at 182.) Two police officers

arrived shortly thereafter and escorted the man out of the store.

On Friday morning, Garett was approached by the store's "visual

manager" Leanne Meyer, who "was extremely hostile and wanted to know exactly

what happened the night before." (Id. at 189; see Garett Aff. ¶ 67.) Meyer said she

19

knew the man, who had been trying to buy a lamp for his wife, and she was quite

upset at the way he had been treated. (See Garett Dep. 189–90.)

On Monday October 7, Orr, who had been away for the weekend,

summoned Garett to her office to discuss the October 3 incident. With Meyer present,

Orr reprimanded Garett for failing to adhere to Anthropologie's corporate policy,

which was to refrain from automatically calling the police on suspected shoplifters.

Garett testified that Orr fired her by saying "this is your final warning. . . . [Y]ou've

done a terrible thing. You never should have done what you did. This is your final

warning. It's over. . . . [Y]ou're done. It's over." (Id. at 204–05.)

Orr told me that I was being given a third and final warning and

then said, "That's it. You're done. It's over with. That's it. You're

done. It's finished." . . . . I told Orr that I had never been given a

first or second warning and asked what does this third and final

warning mean. Orr responded, "It means you're done. That is it."

. . . . It was clear I was being terminated. . . . [S]o I turned in my

keys to the employee who checked me out and left the workplace.

(Garett Aff. ¶ 69.)

Defendants contend that Garett had not been fired. Orr (in addition to

denying that she had ever treated Garett any differently than younger employees (see

Declaration of Jennifer Orr dated February 20, 2017 ("Orr Decl."), ¶¶ 11–12, 19)) stated

20

that she "did not terminate []Garett's employment" (id. ¶ 27; see Deposition of Jennifer

Orr ("Orr Dep.") at 160). Orr denied having said, inter alia, "'this is your third and

final warning,'" or "'[i]t's over,'" or "'you're done,'" or anything else implying that

Garett's employment was being terminated. (Orr Decl. ¶¶ 28–30.) Nor did Orr ask

Garett for her store keys or remove her from the work schedule. (See id. ¶ 31.)

Meyer stated that she had attended that October 7 meeting at the request

of Orr, in order to witness Orr giving Garett a written warning for violating

Anthropologie policy on October 3 by hastily calling the police and thereby publicly

humiliating a customer. (See Declaration of Leanne Meyer dated April 3, 2015

("Meyer Decl."), ¶¶ 6–8.) Orr herself, however, testified that when she began the

meeting with Garett she was trying to get Garett's version of the event and had not

decided to give Garett a written warning; she made the decision to do so during the

meeting. (See Orr Dep. 91, 121–24.) Orr's recollection was that at that meeting she

issued a written warning to Garett for violating Anthropologie's policy, and that "[w]e

chatted about the next step, if anything like that ever happens again, the next step of

contacting me and being able to talk through it together and work together through

it in the future." (Id. at 121.) Meyer stated that Garett "refused to sign the written

21

warning form but did agree to work with [Orr] to problem solve future situations

together." (Meyer Decl. ¶ 9.)

Garett maintains that she "was not given the document that

Anthropologie relies upon." (Garett Aff. ¶ 74; see Garett Dep. 196 ("Nobody showed

me anything that day.").) After the meeting, Garett left the store and did not return.

(See Garett Aff. ¶¶ 69, 74.) Attempts by Orr and Meyer to reach her went

unanswered. (See, e.g., Orr Decl. ¶¶ 32–34; Meyer Decl. ¶ 10.)

D. The District Court's Grant of Summary Judgment

After pursuing administrative remedies with state authorities in

Connecticut, Garett commenced the present action in the district court in December

2015. Her complaint, to the extent pertinent to the claims pursued on this appeal,

alleged or summarized the above events and asserted age-based hostile work

environment claims and retaliation claims under the ADEA, NYSHRL, and CFEPA.

Following the completion of discovery, defendants moved for summary judgment,

contending principally that the incidents Garett alleged did not create conditions so

severe or pervasive as to permit an inference of a hostile work environment, and that

22

the claims of retaliation failed because she could not establish that she suffered any

adverse employment action.

The district court, in an opinion dated September 27, 2017, Davis-Garett

v. Urban Outfitters, Inc., No. 15-CV-09598, 2017 WL 4326112 (S.D.N.Y. 2017) ("D. Ct.

Op."), granted the motion, concluding that Garett failed to adduce sufficient evidence

to show a prima facie case of discrimination or retaliation.

Preliminarily, the court stated that ADEA claims as to earlier aspects of

Garett's employment by Anthropologie were untimely. It ruled that her evidence

"pertaining to incidents occurring before February 16, 2013—300 days prior to" her

commencement of administrative proceedings, "[we]re time barred" and would "not

be considered." Id. at *3. "This includes the time that Garett worked at the Roosevelt

Field Mall Store and the first month of her time at the White Plains Store." Id.

With respect to the ADEA hostile work environment claim, the court also

ruled (as described in Part II.C. below) that the evidence adduced by Garett—as to the

comments made to her by Bentley and Fitzpatrick that she was too slow, as to the

assignments to the fitting room, and as to the prolonged assignments to open and

close the store—was insufficient to establish a hostile work environment claim.

23

In dismissing Garett's ADEA retaliation claim, the court applied the

familiar burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411

U.S. 792 (1973), focusing in particular on the requirement that the plaintiff show that

she suffered an adverse employment action. Quoting language from Galabya v. New

York City Board of Education, 202 F.3d 636, 640 (2d Cir. 2000) ("Galabya"), the district

court stated that, in order "[t]o successfully show an adverse employment action, the

plaintiff must show that he or she experienced a 'materially adverse change' in the

terms and conditions of employment," such as "demotions, decreases in salary, and

decreases in responsibility." D. Ct. Op., 2017 WL 4326112, at *4 (emphasis ours). As

described more fully in Part II.C. below, the court concluded that the incidents

recounted by Garett "fail[ed] to provide sufficient evidence" of an "adverse

employment action," id. at *5.

Finding the same analyses applicable to Garett's claims under the

NYSHRL and CFEPA, the court dismissed her state-law claims as well. See id.

24

II. DISCUSSION

On appeal, Garett contends principally that in dismissing her hostile

work environment claims, the court erred in refusing to consider evidence of events

that predated the limitations period and in failing to view the evidence in the light

most favorable to her as the party against whom summary judgment was sought; and

that in dismissing her retaliation claims, the court erred in adopting an

"oversimplifi[ed]" view of the record as devoid of proof that Garett suffered an

adverse employment action, by failing to look at "the specific circumstances" of

Garett's treatment (Garett brief on appeal at 40). The United States Equal

Employment Opportunity Commission ("EEOC"), as amicus curiae, urges us to reverse

the dismissal of Garett's ADEA hostile work environment claim on the ground that

the district court erred in ruling that it could not consider evidence of events that

occurred prior to February 16, 2013, and to reverse the dismissal of Garett's ADEA

retaliation claim on the ground that the district court erroneously applied a standard

applicable to substantive discrimination claims rather than the standard announced

25

by the Supreme Court in Burlington Northern & Santa Fe Ry. Co. v. White, 548 U.S. 53,

68 (2006) ("White"), for claims of retaliation.

Summary judgment is appropriate where "the movant shows that there

is no genuine dispute as to any material fact and the movant is entitled to judgment

as a matter of law." Fed. R. Civ. P. 56(a). The procedural constraints are discussed

in Part II.C. below; we begin here with the substantive law.

A. Principles Governing ADEA Hostile Work Environment Claims

With respect to an individual over the age of 40, the ADEA makes it

unlawful for an employer to "discriminate against [the] individual with respect to his

[or her] compensation, terms, conditions, or privileges of employment, because of

such individual's age." 29 U.S.C. §§ 623(a)(1), 631(a). This language is virtually

identical to that of Title VII, which prohibits employment discrimination because of

race, color, religion, sex, or national origin, see 42 U.S.C. § 2000e-2(a)(1). Such

prohibitions encompass "requiring people to work in a discriminatorily hostile or

abusive environment." Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993) ("Harris").

They are violated

26

[w]hen the workplace is permeated with discriminatory

intimidation, ridicule, and insult . . . that is sufficiently severe or

pervasive to alter the conditions of the victim's employment and

create an abusive working environment.

Id. (Title VII) (internal quotation marks omitted); see, e.g., Kassner v. 2nd Avenue

Delicatessen Inc., 496 F.3d 229, 240 (2d Cir. 2007) (ADEA). "Isolated, minor acts or

occasional episodes do not warrant relief," Brennan v. Metropolitan Opera Ass'n, 192

F.3d 310, 318 (2d Cir. 1999) ("Brennan") (Title VII and ADEA), but that "does not mean

that employers are free from liability in all but the most egregious cases," Terry v.

Ashcroft, 336 F.3d 128, 148 (2d Cir. 2003) (Title VII and ADEA) (internal quotation

marks omitted).

Actionable hostile work environment claims have both objective and

subjective components.

Conduct that is not severe or pervasive enough to create an

objectively hostile or abusive work environment—an environment

that a reasonable person would find hostile or abusive—is beyond

Title VII's purview. Likewise, if the victim does not subjectively

perceive the environment to be abusive, the conduct has not

actually altered the conditions of the victim's employment, and

there is no Title VII violation.

Harris, 510 U.S. at 21–22. Similarly, under the ADEA, "[a] work environment will be

considered hostile if a reasonable person would have found it to be so and if the

27

plaintiff subjectively so perceived it" because of conduct based on the plaintiff's over-

40 age. Brennan, 192 F.3d at 318; see id. ("an environment which is equally harsh . . .

for both young and old does not constitute a hostile working environment under the

[ADEA]").

As for the permissible temporal scope of a federal claim of employment

discrimination, generally if the plaintiff has initially filed an administrative claim in

a state whose laws prohibit such discrimination, the limitations period for filing an

action is 300 days after the alleged unlawful practice. See 29 U.S.C. § 626(d)(1)(B).

Where the plaintiff complains of discrete discriminatory or retaliatory acts such as

"termination, failure to promote, denial of transfer, or refusal to hire," such claims are

not actionable if they occurred prior to the 300-day period even though they may be

"related to" acts that occurred within the permissible 300-day period. National R.R.

Passenger Corp. v. Morgan, 536 U.S. 101, 113–14 (2002) ("Morgan").

"Hostile environment claims," however, "are different in kind from

discrete acts," as "[t]heir very nature involves repeated conduct." Id. at 115.

The "unlawful employment practice" therefore cannot be said to

occur on any particular day. It occurs over a series of days or perhaps

years and, in direct contrast to discrete acts, a single act of harassment

28

may not be actionable on its own. . . . Such claims are based on the

cumulative effect of individual acts.

Id. (emphasis added); see, e.g., Harris, 510 U.S. at 21. Thus, "[a] charge alleging a

hostile work environment claim . . . will not be time barred so long as all acts which

constitute the claim are part of the same unlawful employment practice and at least one

act falls within the time period." Morgan, 536 U.S. at 122 (emphasis added); see, e.g., id.

at 105 ("consideration of the entire scope of a hostile work environment claim,

including behavior alleged outside the statutory time period, is permissible for the purposes

of assessing liability, so long as an act contributing to that hostile environment takes

place within the statutory time period" (emphases added)).

Moreover, even with respect to a claim of discrete discriminatory or

retaliatory acts, expiration of the limitations period does not bar "an employee from

using the prior acts as background evidence in support of a timely claim." Id. at 113.

"[R]elevant background evidence, such as statements by a decisionmaker or earlier

decisions typifying the retaliation involved, may be considered to assess liability on

the timely alleged act." Jute v. Hamilton Sundstrand Corp., 420 F.3d 166, 176–77 (2d Cir.

2005); see, e.g., Petrosino v. Bell Atlantic, 385 F.3d 210, 220 (2d Cir. 2004).

29

In light of these principles, we conclude that the entirety of Garett's

ADEA claim that she was subjected to a hostile work environment—being, from the

start of her employment at Anthropologie, denied the training given to younger sales

associates and relegated to work almost exclusively in the fitting room, and later

being assigned the most unpleasant and arduous duties and subjected to agedisparaging

criticisms daily—was timely. The district court erred in ruling that it

could not consider pre–February 16, 2013 events in connection with assessment of

liability on the hostile work environment claim and that it could not consider such

events as background for her claim of retaliation.

B. Principles Governing ADEA Retaliation Claims

In the interest of "prevent[ing] employer interference with unfettered

access to [statutory] remedial mechanisms," White, 548 U.S. at 68 (internal quotation

marks omitted), the ADEA, like Title VII, prohibits "employer actions that are likely

to deter victims of discrimination from complaining to the EEOC, the courts, and their

employers," id. (discussing Title VII) (internal quotation marks omitted). Thus, the

ADEA provides that

30

[i]t shall be unlawful for an employer to discriminate against any

of his employees . . . because such individual . . . has opposed any

practice made unlawful by this section, or because such

individual . . . has made a charge, testified, assisted, or

participated in any manner in an investigation, proceeding, or

litigation under this chapter.

29 U.S.C. § 623(d).

Prior to 2006, a plaintiff claiming retaliation for objecting to prohibited

employment discrimination was required to present a prima facie case comprising

four elements, i.e., that (1) she engaged in protected activity, (2) the defendant was

aware of that activity, (3) the plaintiff suffered an adverse employment action, and (4)

there was a causal connection between the protected activity and the adverse

employment action. See generally Kessler v. Westchester County Department of Social

Services, 461 F.3d 199, 204 (2d Cir. 2006) ("Kessler") (discussing Title VII and the

ADEA). An "adverse employment action" in this context meant—as it did in the

context of a substantive claim for discrimination, see, e.g., Galabya, 202 F.3d at 640—"a

materially adverse change in the terms and conditions of employment" such as

termination, demotion evidenced by a decrease in salary or wage, being given a less

distinguished title, a material loss in benefits, significantly diminished material

responsibilities, or some other action deleterious to the plaintiff's current or future

31

employment, Kessler, 461 F.3d at 204 (emphasis in Kessler; other emphasis and internal

quotation marks omitted).

In 2006, however, the Supreme Court in White ruled that Title VII's

"antiretaliation provision, unlike the substantive provision, is not limited to

discriminatory actions that affect the terms and conditions of employment," 548 U.S.

at 64. Rather, a plaintiff may recover for retaliation by "show[ing] that a reasonable

employee would have found the challenged action materially adverse, which in this

context means it well might have dissuaded a reasonable worker from making or supporting

a charge of discrimination." Id. at 68 (internal quotation marks omitted (emphases

ours)). The Court elaborated:

We speak of material adversity because we believe it is

important to separate significant from trivial harms. . . .

We refer to reactions of a reasonable employee because we

believe that the provision's standard for judging harm must be

objective. . . .

We phrase the standard in general terms because the

significance of any given act of retaliation will often depend upon

the particular circumstances. Context matters. . . . A supervisor's

refusal to invite an employee to lunch is normally trivial, a

nonactionable petty slight. But to retaliate by excluding an employee

from a weekly training lunch that contributes significantly to the

32

employee's professional advancement might well deter a reasonable

employee from complaining about discrimination.

Id. at 68–69 (first two emphases in original; last emphasis added).

After White, therefore, the harm element of a retaliation claim is not to

be analyzed in the same way as the harm from an alleged substantive act of

discrimination. See, e.g., Kessler, 461 F.3d at 207–10. "Prior decisions of this Circuit

that limit unlawful retaliation to actions that affect the terms and conditions of

employment, e.g., . . . Galabya . . . , no longer represent the state of the law." Hicks v.

Baines, 593 F.3d 159, 165 (2d Cir. 2010). Instead, the proper question for a retaliation

claim is "whether the [alleged adverse action] to which [the plaintiff] was subjected

could well have dissuaded a reasonable employee in his position from complaining

of unlawful discrimination." Kessler, 461 F.3d at 209; see White, 548 U.S. at 57 (whether

the action "could well dissuade a reasonable worker from making or supporting a

charge of discrimination").

In the present case, as discussed in Part I.D. above, the district court

applied the standard used in Galabya, which involved a claim of substantive

discrimination rather than one for retaliation, and which was decided some years

33

before the decision in White. In applying that pre-White substantive discrimination

standard to the retaliation claims in the present case, the district court erred.

Anthropologie argues that the summary dismissal of Garett's retaliation

claim should be affirmed notwithstanding the district court's application of the wrong

standard for harm, on the basis that Garett failed to adduce sufficient evidence to

show causation. We are unpersuaded. Although Anthropologie notes that the

district court stated that "[t]here is no evidence that either one of [Garett's] managers

was even aware that she had made a complaint to the Hotline at the time of her

transfer," D. Ct. Op., 2017 WL 4326112, at *5, that statement cannot justify affirmance.

First, "her transfer" must have referred to Garett's transfer to Greenwich: The court

had refused to consider any events prior to mid-February (the period in which Garett

was reassigned to White Plains), and Garett in fact was not transferred to Edgewater.

But the record is clear that both Shearer and Berry were aware of Garett's complaint

about Shearer before Garett was transferred to Greenwich. (See, e.g., Shearer Dep.

78–84.)

Second, Anthropologie says that by "managers," the district court was

instead referring to New Jersey district manager Ernst and Greenwich store manager

34

Orr; but the court's reference to "either one of [Garett's] managers" was

unaccompanied by any names. And while Anthropologie argues that Ernst and Orr

did not know of Garett's hotline complaints, we doubt that it was these two

individuals to whom the district court referred since (a) Ernst was never Garett's

manager, (b) Orr was not Garett's manager in Greenwich until after that transfer, and

(c) we have not seen in the record any indication that either Ernst or Orr had the

authority to transfer Garett.

To the extent that Anthropologie—arguing that the decision not to have

Garett in Edgewater was made solely by New Jersey district manager Ernst (see

Anthropologie brief on appeal at 9 n.9)—suggests that the court's statement referred

instead to Garett's non-transfer to Edgewater, its argument is equally flawed. An

inference can be drawn from the record that the decision that Garett should not go to

Edgewater was made not by Ernst but by Shearer: Shearer testified that, in discussing

the non-transfer decision with Garett, "I explained to her that I was really looking out

for her best interests, . . . and I did not think that the Edgewater store was going to be"

"a good experience" for her. (Shearer Dep. 82 (emphases added).) And a causal

connection between the protected activity and the company's adverse employment

35

action can be established by showing that the employer's action followed the

protected activity closely in time. See, e.g., Kwan v. Andalex Group LLC, 737 F.3d 834,

845 (2d Cir. 2013); Kaytor v. Electric Boat Corp., 609 F.3d 537, 552 (2d Cir. 2010)

("Kaytor"); Kessler, 461 F.3d at 210–11. Shearer testified that she gave the above

explanation to Garett after the conversation in which Berry—manager of the region

encompassing both Shearer's district and Edgewater—had called Shearer to discuss

Garett's potential transfer to Edgewater and informed Shearer of Garett's hotline

complaint about Shearer. Shearer testified that it was in that conversation that "the

decision . . . that []Garett would not be transferred to the Edgewater store" was made.

(Shearer Dep. 78–80.)

Finally, although Anthropologie proffers the Edgewater personnel

problems (see Part I.B.2. above) as a legitimate business reason for denying Garett a

transfer to that store, that explanation cannot be accepted as a basis for a judgment

as a matter of law. For example, the representation that the decision not to have

Garett in Edgewater was made by Ernst is in tension with Shearer's testimony that

that decision was made in the telephone call between Shearer and Berry. Further,

Ernst's statement that she did not offer and could not have offered Garett the apparel

36

supervisor position is disputed by Garett's testimony that Ernst did offer her the job.

And in any event, any problems in Edgewater do not provide a justification for

Shearer's telling Garett that she would be fired unless she agreed to be reassigned to

Greenwich, to a position already occupied, and for which she would be allowed to

do only the chores that were the most onerous.

C. Principles Governing Decision of Summary Judgment Motions

The principles governing a district court's consideration of a motion for

summary judgment—which also govern appellate review of a summary judgment

decision, see, e.g., Kaytor, 609 F.3d at 546—are well established. In ruling on such a

motion, "the district court is required to resolve all ambiguities, and credit all factual

inferences that could rationally be drawn, in favor of the party opposing summary

judgment." Kessler, 461 F.3d at 206 (internal quotation marks omitted). "[A]t the

summary judgment stage the judge's function is not himself to weigh the evidence

and determine the truth of the matter but to determine whether there is a genuine

issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). The court

should grant summary judgment only if there is no such issue and the moving party

37

is entitled to judgment as a matter of law. See, e.g., id. at 247. Summary judgment

should be denied where there are genuine issues of material fact "that properly can

be resolved only by a finder of fact because they may reasonably be resolved in favor

of either party." Id. at 250. Summary judgment dismissing a claim "is inappropriate

when the admissible materials in the record make it arguable that the claim has

merit." Kaytor, 609 F.3d at 545 (internal quotation marks omitted).

In determining whether there are genuine issues of material fact to be

tried, "the district court may not properly consider the record in piecemeal fashion,

trusting innocent explanations for individual strands of evidence; rather, it must

'review all of the evidence in the record.'" Id. (quoting Reeves v. Sanderson Plumbing

Products, Inc., 530 U.S. 133, 150 (2000) (reviewing entitlement to judgment as a matter

of law under Fed. R. Civ. P. 50)); see Reeves, 530 U.S. at 150 ("the standard for granting

summary judgment mirrors the standard for judgment as a matter of law, such that

the inquiry under each is the same," requiring the court to "review all of the evidence

in the record" (internal quotation marks omitted)). Piecemeal review of the record "is

especially [inappropriate] in considering claims of hostile work environment," Kaytor,

609 F.3d at 545, i.e., an environment that, as discussed in Part II.A. above, "occurs over

38

a series of days or perhaps years" and has a "cumulative effect," Morgan, 536 U.S.

at 115.

In reviewing "all of the evidence in the record," however, the court "may

not make credibility determinations or weigh the evidence," and it "must draw all reasonable

inferences in favor of the nonmoving party," Reeves, 530 U.S. at 150 (emphases added),

"'even though contrary inferences might reasonably be drawn,'" Jasco Tools, Inc. v.

Dana Corp., 574 F.3d 129, 152 (2d Cir. 2009) (quoting Continental Ore Co. v. Union

Carbide & Carbon Corp., 370 U.S. 690, 696 (1962)). "Credibility determinations, the

weighing of the evidence, and the drawing of legitimate inferences from the facts are

jury functions, not those of a judge." Reeves, 530 U.S. at 150 (internal quotation marks

omitted). However,

although the court should review the record as a whole, it must

disregard all evidence favorable to the moving party that the jury is not

required to believe. . . . That is, the court should give credence to the

evidence favoring the nonmovant as well as that evidence

supporting the moving party that is uncontradicted and

unimpeached, at least to the extent that that evidence comes from

disinterested witnesses.

Id. at 151 (internal quotation marks omitted (emphasis ours)).

39

In light of this well established framework, the district court, in

considering Anthropologie's motion for summary judgment, was required to accept

all sworn statements by Garett as to matters on which she was competent to testify,

including what she did, what she observed, and what she was told by company

managers; and it was required to draw in her favor all inferences that could

reasonably be drawn from that evidence. It was required to disregard the contrary

statements from Anthropologie managers that a jury would not be required to

believe. Several aspects of the court's discussion, however, reveal either a piecemeal

assessment of items in the record or a rejection of Garett's sworn statements.

For example, with regard to Garett's circumstances in White Plains, the

court stated that any age-related remarks that Bentley or Fitzpatrick made to Garett

"were occasional, isolated incidents," and were not sufficiently severe to support the

claim of hostile work environment. D. Ct. Op., 2017 WL 4326112, at *4. But Garett

said that immediately upon her promotion to apparel supervisor, Bentley became

abusive, "treat[ing her] in a hostile and intimidating manner" (Garett Aff. ¶ 33); that

the apparel manager Fitzpatrick, with whom Garett had had a positive working

relationship—although she had not previously reported to Fitzpatrick (see id. ¶ 35;

40

Garett Dep. 129)—began to ignore Garett and then began to criticize her (see Garett

Aff. ¶¶ 35–36); that Garett was excluded from management meetings, which were

scheduled to coincide with her absences (see id. ¶ 35); that little more than a week

after she became a supervisor (a position for which Garett, unlike younger employees,

was given no training (see id.)), Bentley and Fitzpatrick berated her, saying that her

performance was "terrible," that she was "the worst apparel supervisor that they had

ever seen in their lives," that her "pace was too slow," that her "energy level" was too

slow (e.g., Garett Dep. 144–45); and that Fitzpatrick, sometimes in the presence of

other employees, criticized Garett's "'speed'" and "'pace'" "almost daily" (Garett Aff.

¶ 36; see Garett Dep. 136–37).

If a jury accepts that testimony and credits Garett's testimony that

Bentley in June told her explicitly "You're too old," and "You don't have the energy"

and would not have "the stamina" to do the job, it could reasonably infer that all of

the comments from Garett's managers that she was too slow or not fast enough or not

energetic enough were euphemisms about her age. Cf. Weiss v. JPMorgan Chase & Co.,

332 F. App'x 659, 665 (2d Cir. 2009) ("a jury could conclude that the term 'energized'

was a euphemism for youthful" (citing Ash v. Tyson Foods, Inc., 546 U.S. 454, 456–57

41

(2006))). Viewing as a whole, rather than piecemeal, Garett's testimony as to her

treatment and the statements made to her by Anthropologie managers, the jury could

find that Garett—castigated, denied the training given to younger employees, and

excluded from management meetings—was subjected to age-related discrimination,

criticism, and ostracism nearly every day.

Similarly with respect to the retaliation claim, the district court appears

not to have considered the record as a whole and plainly did not describe it in the

light most favorable to Garett. For example, the court rejected the claim of retaliation

in part because Garett had been promoted to apparel supervisor. It did not mention

(a) that this, according to Garett, occurred only after she had complained of

discrimination, and (b) that in her new position Garett was given no training and was

criticized for being deficient; that the language used may permissibly be viewed as

euphemistic disparagement of her age, and she was so criticized daily; and that she

was promptly scheduled—more frequently than anyone had been in the past—to do

those duties of the position that everyone disliked the most.

Common sense suggests that one good way to discourage an

employee . . . from bringing discrimination charges would be to

insist that she spend more time performing the more arduous

duties and less time performing those that are easier or more

42

agreeable. That is presumably why the EEOC has consistently

found "[r]etaliatory work assignments" to be a classic and "widely

recognized" example of "forbidden retaliation."

White, 548 U.S. at 70–71 (quoting 2 EEOC 1991 Manual § 614.7, at 614-31 to 614-32).

The district court also opined that "[m]erely being transferred to a

different location than one requested, on its own, does not constitute an adverse

employment action." D. Ct. Op., 2017 WL 4326112, at *5 (emphasis added). The court

did not mention, for example, Garett's testimony that she had in fact been offered the

job she requested, only to have the offer countermanded upon Shearer's learning of

Garett's complaint against her; that Garett was sent instead to a location in which the

apparel supervisor position she sought was already filled; and that in that new

location she was again denied training, was again relegated mostly to the fitting

room, and was assigned to none of the apparel supervisor duties that were "easier or

more agreeable" but only to those that were "more arduous," White, 548 U.S. at 71, i.e.,

the chores of opening and closing the store, which "no one wants to do" (Garett Aff.

¶ 65).

Applying the correct legal standard to Garett's claim of retaliation, a jury

could rationally find that an employee would likely be deterred from complaining to

43

the company or to governmental authorities about discrimination by her employer

if she knew her complaint would result in (1) the rescission of a job reassignment offer

she had sought and received, and (2) her transfer instead to a location that she had

not sought, for a position that was not vacant, in which she would be denied all

aspects of the reassigned position except those that "no one wants to do."

The "factfinder of course would not be required to draw inferences

favorable to the plaintiff" or accept her testimony as credible; "however, where . . . the

factfinder would be permitted to do so, this Court in reviewing summary judgment

must do so," Stern v. Trustees of Columbia University, 131 F.3d 305, 313–14 (2d Cir.

1997), and has done so here. We conclude that Garett's ADEA claims of hostile work

environment and retaliation should proceed to trial.

D. Garett's State-Law Claims

As the district court applied the same legal analyses to Garett's hostile

work environment and retaliation claims under the NYSHRL and CFEPA that it

applied under the ADEA, and the ADEA analyses were flawed, as discussed in Parts

II.A. and B. above, we vacate the judgment dismissing those state-law claims as well.

44

Differences between the ADEA and those state laws may require additional

consideration.

CONCLUSION

We have considered all of Anthropologie's appellate arguments in

support of summary judgment and have found them to be without merit. The

judgment is vacated, and the matter is remanded for trial of Garett's ADEA claims of hostile work environment and retaliation, and for further consideration of her claims under state laws.

45