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Blair Davis-Carett v. Urban Outfitters, Inc.; Anthropologie, Inc.
Case Number: 17-337-CV
Court: United States Court of Appeals for the Second Circuit on appeal from the Southern District of New York (New York County)
Plaintiff's Attorney: Brian Heller
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
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.
Defendant's Attorney: Blair J. Johnson
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
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.
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
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
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
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.
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.
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.
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 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
(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.
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
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
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
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
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.
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
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
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
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
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.
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.
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
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
[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
Actionable hostile work environment claims have both objective and
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
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
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
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).
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
[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
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
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
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.
Second, Anthropologie says that by "managers," the district court was
instead referring to New Jersey district manager Ernst and Greenwich store manager
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
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
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
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
a series of days or perhaps years" and has a "cumulative effect," Morgan, 536 U.S.
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
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
Id. at 151 (internal quotation marks omitted (emphasis ours)).
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;
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
(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
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.
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
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.
Differences between the ADEA and those state laws may require additional
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.