By Brandi O. Brown, J.D.
The court below should have considered events that occurred outside of the 300-day-period preceding the employee’s administrative charge when considering her hostile work environment claim and it applied the wrong standard of harm to her retaliation claim.
A 54-year-old Anthropologie employee, who alleged that she was marginalized and subjected to a hostile work environment because of her age and then retaliated against for complaining, has been given a renewed opportunity to take her ADEA and state-law claims to trial. The lower court’s failure to consider the record as a whole and to describe it in the light most favorable to the employee, along with its refusal to consider events preceding the 300-day administrative period for the hostile work environment claim and its application of the wrong standard of harm to the retaliation claim, led the appeals court to vacate and remand the matter for trial (Davis-Garett v. Urban Outfitters, Inc., April 8, 2019, Kearse, A.).
Hidden in the fitting room. In her brief period of employment with the retailer, the employee alleged she was subjected to a hostile work environment because of her age and retaliated against after she complained. She started as a part-time employee at an Anthropologie location in New York in September 2012, when she was 54 years old. She was older than most of the other sales associates, as well as her boss. She claimed that unlike the others, she was relegated to the fitting room and denied training opportunities. When that location closed, she was assigned to a store further away because she better matched the “demographics” of that store, i.e., she was told that she was “old” and the people who shopped there were also “older.” Nonetheless, she remained relegated to the fitting room and was also “ostracized” by her younger coworkers who referred to her as “Mom” or “Mommy,” even though she told them not to.
Not enough “stamina” for promotion. When she later expressed interest in applying for an open apparel supervisor position, her boss told her it was “completely impossible,” she did not have the “energy” or “stamina” for the position, and she was “too old” for it. After she called the employee hotline to complain about those comments she was promoted to the position. Following the complaint and promotion, however, her boss was hostile toward her and her job conditions worsened.
She was still assigned to the fitting room but was also scheduled to open and close the store, considered the most onerous task, more frequently than before. She was purportedly excluded from meetings and denied training while being criticized for her “speed” and “pace.” She alleged that they told her she was “the worst apparel supervisor” they had seen. She complained again and this time her boss received a warning.
Not long thereafter, the employee asked to be transferred to an open apparel supervisor position in a New Jersey store. When the district manager failed to respond, the employee called the hotline again. Although the district manager for that store offered her the job during an interview, the employee was instead transferred to a different store in Connecticut. While there, her employment ended (the parties dispute whether or not she was fired). She pursued administrative remedies and filed suit, alleging violations of the ADEA, the NYSHRL, and the CFEPA. The defendants moved for summary judgment, which the federal district court in Connecticut granted.
Temporal scope limited in error. There were several major problems with the district court’s decision, the appeals court stated. First, the district court had ruled that the employee’s hostile work environment claims were untimely with regard to events occurring before February 16, 2013, which marked the commencement of the 300-day period leading up to the employee’s administrative charge. The district court therefore refused to consider those incidents at all, which was error. As to hostile work environment claims, the entire scope of the claim, including acts that occurred outside of the statutory time period, can be considered in assessing liability, as long as one act occurred within the time period, the appeals court explained. And even if it were a discrete claim, the statutory time period would not bar a plaintiff from using prior acts as background evidence.
Wrong standard applied. Second, with regard to the retaliation claim, the district court granted summary judgment because the employee did not satisfy the “adverse employment action” standard, but instead it should have considered whether the alleged retaliatory acts would have “dissuaded a reasonable employee” in her position from complaining of discrimination. Moreover, contrary to the employer’s assertion, the employee adduced sufficient evidence of causation. The decisionmakers involved in the final transfer decision were aware of her complaints. In fact, the primary decisionmaker testified that the transfer had been discussed in the same conversation in which she learned of the employee’s recent complaint about her.
Finally, and related to both the hostile work environment and retaliation claims, the district court failed to apply the proper principles with regard to deciding summary judgment motions. In ruling on such a motion, it should have resolved ambiguities and credited all factual inferences in favor of the employee, who was the non-moving party. It should not consider the record in a “piecemeal fashion.” However, that was exactly what the lower court did, the appeals court observed.
For example, if the jury accepted and credited the employee’s testimony about her manager telling her she was “too old” for the apparel supervisor job and that she did not have “the stamina” for it, it could reasonably infer that other comments about her being too slow or not being energetic enough were “euphemisms about her age.” Viewed as a whole, the court concluded, the jury could find that the employee was “castigated, denied the training given to younger employees, and excluded from management meetings” and thus “was subjected to age-related discrimination, criticism, and ostracism nearly every day.” The court made the same mistake with regards to the employee’s retaliation claim.
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