No. 17-3371

IN THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

 

Blair Davis-Garett,

          Plaintiff - Appellant,

v.

Urban Outfitters, Incorporated, Anthropologie, Incorporated,

          Defendants - Appellees.

 

On Appeal from the United States District Court

for the Southern District of New York

 

BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY

COMMISSION AS AMICUS CURIAE IN SUPPORT OF

PLAINTIFF - APPELLANT AND IN FAVOR OF REVERSAL

 

JAMES L. LEE

Deputy General Counsel

 

JENNIFER S. GOLDSTEIN

Associate General Counsel

 

ELIZABETH E. THERAN

Assistant General Counsel

 

SUSAN L. STARR

Attorney

U.S. EQUAL EMPLOYMENT

OPPORTUNITY COMMISSION

Office of General Counsel

131 M St., N.E., 5th Floor

Washington, D.C. 20507

(202) 663-4720

(202) 663-4727

elizabeth.theran@eeoc.gov

susan.starr@eeoc.gov

 

 

TABLE OF CONTENTS

TABLE OF AUTHORITIES. iii

 

STATEMENT OF INTEREST. 1

 

STATEMENT OF THE ISSUES. 1

 

STATEMENT OF THE CASE. 2

 

I..... Statement of the Facts. 2

 

II.... District Court’s Decision. 10

 

ARGUMENT. 13

 

I.  THE DISTRICT COURT ERRED IN GRANTING SUMMARY JUDGMENT TO THE DEFENDANT ON GARETT’S ADEA RETALIATION CLAIM BECAUSE IT APPLIED THE WRONG LEGAL STANDARD IN CONCLUDING THAT SHE FAILED TO ADDUCE SUFFICIENT EVIDENCE TO SUPPORT A PRIMA FACIE CASE. 13

 

A... An Adverse Action For Purposes of an ADEA Retaliation Claim is One That Might Well Have Dissuaded a Reasonable Worker From Making or Supporting a Charge of Discrimination. 13

 

B.... The District Court’s Rationale for Granting Summary Judgment on Garett’s Retaliation Claim Cannot Survive Application of the Correct Legal Standard. 20

 

1.... The District Court Erred in Concluding that, on Summary Judgment, Garett’s Evidence Was Insufficient to Demonstrate an Adverse Action for Purposes of a Retaliation Claim. 20

 

2.... The District Court Erred Legally and Factually in Stating That Garett Could Not Demonstrate a Prima Facie Case of Retaliation Because Her Managers Were Unaware of Her Hotline Complaints at the Time of Her Transfer. 25

 

3.... Garett’s Evidence Is Sufficient to Support a Jury Finding of a Causal Link Between Her Protected Activity and Her Transfer. 28

 

II.  THE DISTRICT COURT MISCONSTRUED MORGAN’S HOLDING THAT A PLAINTIFF MAY NOT RECOVER FOR TIME-BARRED “DISCRETE ACTS” TO MEAN THAT IT COULD NOT CONSIDER EVIDENCE OF SUCH ACTS IN ANY CONTEXT. 30

 

CONCLUSION.. 33

 

CERTIFICATE OF COMPLIANCE. 34

 

CERTIFICATE OF SERVICE. 35

 

 

TABLE OF AUTHORITIES

CASES

Burlington Northern & Santa Fe Railway Co. v. White,

  548 U.S. 53 (2006)........................................ 2, 14, 15, 16, 17, 18, 19, 20, 25

 

Carvalho v. Associated Brands, Inc.,

   707 F. App’x 742 (2d Cir. 2017)................................................................ 18

 

Fitzgerald v. Henderson,

   251 F.3d 345 (2d Cir. 2001)...................................................................... 32

 

Galabya v. New York City Board of Education,

    202 F.3d 636 (2d Cir. 2000).............................................. 11, 12, 19, 20, 23

 

Gordon v. New York City Board of Education,

   232 F.3d 111 (2d Cir. 2000) ...................................................................... 26

 

Gorman-Bakos v. Cornell Coop. Extension of Schenectady County,

   252 F.3d 545 (2d Cir. 2001)..............................................................    28, 29

 

Gorzynski v. JetBlue Airways Corp.,

   596 F.3d 93 (2d Cir. 2010) ............................................................ 11, 19, 29

 

Guarino v. St. John Fisher College,

   321 F. App’x 55 (2d Cir. 2009) ................................................................. 13

 

Henry v. Wyeth Pharmaceuticals, Inc.,

   616 F.3d 134 (2d Cir. 2010) ...................................................................... 26

 

Hicks v. Baines,

   593 F.3d 159 (2d Cir. 2010)................................................................. 17, 20

 

Jute v. Hamilton Sundstrand Corp.,

   420 F.3d 166 (2d Cir. 2005) ...................................................................... 14

 

Kessler v. Westchester County Department of Social Services,

   461 F.3d 199 (2d Cir. 2006) .................................. 13, 16, 17, 19, 20, 24, 26

 

McDonnell Douglas v. Green,

   411 U.S. 792 (1973)................................................................................... 11

 

McMenemy v. City of Rochester,

   241 F.3d 279 (2d Cir. 2001) ...................................................................... 14

 

National R.R. Passenger Corp. v. Morgan,

   536 U.S. 101 (2002) ................................................................... 2, 11, 30, 31

 

Papelino v. Albany College of Pharmacy of Union University,

   633 F.3d 81 (2d Cir. 2011)........................................................................ 26

 

Patane v. Clark,

   508 F.3d 106 (2d Cir. 2007) ...................................................................... 17

 

Petrosino v. Bell Atlantic,

   385 F.3d 210 (2d Cir. 2004) .....................................................................  31

 

Rivera v. Rochester Genesee Regional Transportation Authority,

   743 F.3d 11 (2d Cir. 2014) ........................................................................ 17

 

Szwalla v. Time Warner Cable, LLC,

   670 F. App’x 738 (2d Cir. 2016) ..............................................................  18

 

Terry v. Ashcroft,

   336 F.3d 128 (2d Cir. 2003)....................................................................... 14

 

Trans World Airlines, Inc. v. Thurston,

   469 U.S. 111 (1985) ................................................................................... 14

 

Treglia v. Town of Manlius,

   313 F.3d 713 (2d Cir. 2002) ...................................................................... 18

 

Vega v. Hempstead Union Free School District,

   801 F.3d 72 (2d Cir. 2015) ........................................................................ 17

 

University of Texas Southwest Medical Center v. Nassar,

   570 U.S. 338, 133 S. Ct. 2517 (2013) ........................................................ 14

 

Williams v. R.H. Donnelley, Corp.,

   368 F.3d 123 (2d Cir. 2004) ...................................................................... 16

 

Zann Kwan v. Andalex Group LLC,

   737 F.3d 834 (2d Cir. 2013) ...................................................................... 28

 

FEDERAL STATUTES & RULES

 

Age Discrimination in Employment Act,

   29 U.S.C. §§ 621 et seq.................................................................................. 1

   29 U.S.C. § 626 (d)(1)(B)............................................................................ 11

 

Title VII of the Civil Rights Act of 1964,

   42 U.S.C. § 2000e-2.................................................................................... 15

   42 U.S.C. § 2000e-3(a) ............................................................................... 16

   42 U.S.C. § 2000e–5(e)(1)........................................................................... 30

 

Fed. R. App. P. 29(a)....................................................................................... 1

2d Cir. R. 32.1.1............................................................................................ 19

STATEMENT OF INTEREST

The Equal Employment Opportunity Commission is charged by Congress with administering, interpreting, and enforcing the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. §§ 621 et seq.  This case presents important and recurring issues, including the governing legal standard for actionable retaliation under the ADEA and the proper analysis of otherwise-untimely “discrete acts” as evidentiary support for other claims.  Because this Court’s resolution of this and other issues presented will affect the EEOC’s enforcement of the ADEA and other statutes, the agency offers its views to the Court pursuant to Fed. R. App. P. 29(a).

STATEMENT OF THE ISSUES[1]

1.   Did the district court err in applying the “adverse employment action” standard for substantive discrimination claims to the plaintiff’s ADEA retaliation claim, when controlling law of the Supreme Court and this Court requires only that the challenged action “might well have dissuaded a reasonable worker from making or supporting a charge of discrimination?”  Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006) (citations and internal quotation marks omitted).

2.  Did the district court err in refusing to consider evidence of conduct that occurred prior to the charge-filing period in connection with the plaintiff’s hostile work environment and retaliation claims?  See National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002) (holding that such conduct is both actionable as part of a timely hostile work environment claim and relevant as “background evidence in support of” timely filed discrete claims).

STATEMENT OF THE CASE

      I.      Statement of the Facts

Plaintiff Blair Davis-Garett (“Garett”) worked for defendants Urban Outfitters and Anthropologie (“Anthropologie” or “company”) from September 2012 until October 2013.  A-240, 488.[2]  Initially, Garett worked at the Roosevelt Field Mall, for store manager Jennifer Rodibaugh Orr (“Orr”).  A-237.  Orr hired Garett, age 54, as a part-time sales associate; her fellow sales associates were virtually all in their twenties and thirties.  A-240.  After working a few weeks, Garett asked Orr to assign her rotating store duties, as she did the other, younger associates, so Garett could learn more about the company’s operations.  A-239-40.  Orr repeatedly denied Garett’s requests, instead assigning her to the fitting room for most of her work hours.  Id.  

In January 2013, the Roosevelt Field store closed.  While the other Roosevelt Field personnel were transferred to nearby stores, Orr arranged for Garett to be transferred more than thirty miles away to White Plains, New York.  A-242, 347, 476.  According to Garett, White Plains store manager Kelly Bentley, with whom Orr had previously worked and remained friendly (A-353), told Garett that her transfer to White Plains was because Garett fit that store’s “demographic,” which Garett understood Bentley to mean an older demographic.  A-242-43, 489-90. 

Soon after Garett began working as an associate at White Plains, first part-time and then full-time at the same pay rate and responsibilities,  managers, including Bentley, began calling Garett “Mommy” and asking her to assist them with personal care needs, such as taking care of their cuts and bruises or consoling them.  A-242, 248-49.  Garett objected to this treatment, but the behavior continued.  Id.

In June 2013, Garett testified, when she told Bentley she wanted to apply for a supervisory job, Bentley said that “was completely impossible” because Anthropologie was a “young” company and she would never be promoted because she was “too old” and she did not have the “energy or stamina.”  A-254.  Garett testified that she immediately called the unstaffed company hotline and left a message repeating Bentley’s words.  A-256-57, 263-64.  Garett’s call was handled by corporate managers Jen Berry and Amy Shearer.  A-414.  Shearer called Garett back and said she would talk to Bentley (A-416-17); Garett heard nothing further from anyone at Anthropologie about her complaint.  A-419-22, 570.  Bentley continued to supervise Garett.  A-257-58.

Later in June, Bentley told Garett she was being promoted to apparel supervisor.  A-253-54, 494.  Garett testified that immediately after the promotion, Bentley and Kara Fitzpatrick, Garett’s immediate supervisor, engaged in a daily campaign of criticizing her work performance, repeatedly attacked her energy level, denied her training offered to others, and required her to work in the fitting room even though managers were rarely assigned that duty.  A-258-63.  In addition, Garett testified that Bentley told her she was being assigned “special” training involving a schedule much more rigorous than normal.  A-495.  Shearer later told Garett that type of schedule had never been required before.  Id. 

In July, Garett left another message on the hotline complaining about Bentley’s and Fitzgerald’s treatment of her.  A-263-64, 497.  No one from Anthropologie followed up with Garett.  Id.  On July 17, Bentley received a written warning citing a few “examples of unsatisfactory behavior,” including that she made derogatory, age-related remarks to a “newly promoted supervisor.” A-195.  The warning stated that, while it was in effect, Bentley was “not eligible for salary review or transfer.”  Id.

Garett testified that in August 2013, upon learning of management vacancies at the Edgewater, New Jersey, store, she first contacted Shearer requesting a transfer to Edgewater; when Shearer did not respond, Garett then called the Anthropologie corporate hotline.  A-265, 496-97.  New Jersey District Manager Jen Ernst eventually contacted Garett directly and interviewed her in person on September 3.  A-266-67, 499.  According to Ernst, the interview with Garett “went very well.”  A-457.  Garett testified that at the end of the interview, Ernst told her she would contact Bentley to arrange for the transfer.  A-266-67, 499.

Unbeknownst to Garett, after the interview but before Ernst finalized a hiring decision, Shearer called Ernst and told her she had just learned that Garett had called the hotline to lodge a complaint and that Shearer believed the complaint was about Shearer’s own role in the transfer delay.  A-418-19, 423, 501.  Corporate managers Shearer and Berry then denied Garett’s Edgewater transfer request because of unspecified “personnel issues” at the Edgewater store.  A-425.[3]  When Shearer spoke to Garett of the decision, she told Garett that she was going to Greenwich and that Garett “had no choice in the matter, that [she] either take the transfer [as an apparel supervisor] to Greenwich or she was fired,” even though the apparel supervisor position at Greenwich was already occupied.  A-267-68.  Bentley also told Garett that she “would love [Greenwich], the demographics were perfect for [her].”  A-267.

In mid-September, Garett began working at Greenwich under Orr, the same store manager who had supervised her at the Roosevelt Mall.  A-268.  As Shearer had directed, Garett retained the job title of apparel supervisor, but because the existing apparel supervisor retained the job’s responsibilities, Garett was left with little to do but work in the fitting room and perform store closings.  A-268-69, 354, 428, 31-32.  In addition, according to Garett, Orr again failed to offer her meaningful supervisory training.  A-269, 503.

On October 3, when Garett and two young associates were closing at the end of the day, a visibly agitated man repeatedly entered and left the store, acting oddly, and alarming the young associates.  A-271-72.  According to Garett, due to a combination of factors—the man’s unusual and erratic behavior, the fact that the store had experienced a rash of shoplifting during the previous two weeks (necessitating Orr to call the police at least once), and her associates stating that they were “freaking out”—Garett called the police’s non-emergency number.  Id.  The police responded and escorted the man out.  A-272-73. 

Orr testified that, when she returned to work on October 7 but before Garett came in, she had not decided whether to give Garett a warning regarding the events of October 3.  A-360.  However, she testified, corporate management instructed her to give Garett a warning for violating company policy against calling the police when a customer was suspected of shoplifting.[4]  A-594-95.  Orr testified that she understood Garett to say that she had called the police because she feared for the staff’s safety and not because she suspected the man of shoplifting.  A-279, 361, 363-64.  Nonetheless, she testified, Orr followed corporate’s directive and told Garett that this violation was her “third and final warning . . . that’s it. You’re done. It’s over with.”  A-277-79.  Garett asked what that meant because she had never been given a first or second warning, and Orr said, “[i]t means you’re done.  That is it.”  A-278.  Garett turned in the keys, was checked out, and left the store. A-280-81.

On December 13, 2013, Garett filed a charge with the Connecticut Commission on Human Rights and Opportunities, alleging age discrimination, an age-based hostile work environment, and retaliation in violation of the ADEA.  A-179.  After Garett filed her charge, she saw, for the first time, a written warning dated October 7, 2013, stating that in the future Garett and Orr agreed to “troubleshoot together.”[5]  A-275, 590.  The state agency issued a right-to-sue notice and on December 9, 2015, Garett filed the instant action.  A-179.  Garett alleged that she was treated worse than the significantly younger staff and then retaliated against and ultimately fired after multiple calls to the company’s official hotline complaining of age discrimination and retaliation.  A-510-36.

   II.      District Court’s Decision

The district court granted Anthropologie’s summary judgment motion as to all of Garett’s claims.  SPA-14.  The court began its analysis by noting that, with respect to the applicable statute of limitations, “[a] discrete, completed act that occurs outside of the 300-day limitations period is time-barred.”  SPA-6-7 (citing Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 110 (2002)).  Accordingly, the court held, “Garett’s claims pertaining to incidents occurring before February 16, 2013—300 days prior to [her charge’s] filing date—are time barred and will not be considered for the purpose [of] her ADEA claims.”  Id. at 7 (citing 29 U.S.C. § 626(d)(1)(B)).

With respect to Garett’s retaliation claim, the court began by noting that the burden-shifting framework from McDonnell Douglas v. Green, 411 U.S. 792, 802 (1973), applies to ADEA retaliation claims, citing Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 110 (2d Cir. 2010).  SPA-10.  The court stated, “[i]n order to make out a prima facie case for retaliation, a plaintiff must show . . . (2) an adverse employment action.”  Id. (citing Gorzynski, 596 F.3d at 110).  According to the court, “[t]o successfully show an adverse employment action, the plaintiff must show that he or she experienced a ‘materially adverse change’ in the terms or conditions of employment, and show that the conditions were ‘more disruptive than mere inconvenience or an alteration of job responsibilities.’”  Id. (citing Gorzynski, 596 F.3d at 110 (quoting Galabya v. N.Y.C. Bd. of Educ., 202 F.3d 636, 639 (2d Cir. 2000)).  The court pointed to Galabya, 202 F.3d at 639, for the proposition that “[e]xamples of materially adverse changes include demotions, decreases in salary, and decreases in responsibility.”  Id.

The court held that Garett failed to adduce sufficient evidence that she was subjected to an “adverse employment action.”  SPA-11.  Observing that “plaintiff was promoted twice during her time at defendant’s stores, the court continued, “[m]erely being transferred to a different location than requested, on its own, does not constitute an adverse employment action.”  Id.  The court also stated that there was no evidence that either of Garett’s managers was aware of the complaint Garett made in July to the hotline, and that the written warning Garett was given could not have constituted a termination because it stated that “in the future, plaintiff must work with her manager to ‘troubleshoot together.’”  Id.

ARGUMENT

I.      THE DISTRICT COURT ERRED IN GRANTING SUMMARY JUDGMENT TO THE DEFENDANT ON GARETT’S ADEA RETALIATION CLAIM BECAUSE IT APPLIED THE WRONG LEGAL STANDARD IN CONCLUDING THAT SHE FAILED TO ADDUCE SUFFICIENT EVIDENCE TO SUPPORT A PRIMA FACIE CASE.

A.  An Adverse Action For Purposes of an ADEA Retaliation Claim is One That Might Well Have Dissuaded a Reasonable Worker From Making or Supporting a Charge of Discrimination.

To prove that actions were retaliatory in violation of the ADEA, a plaintiff makes out a prima facie case by showing “(1) she was engaged in protected activity; (2) the employer was aware of the employee’s participation in the protected activity; (3) the employer took action that a reasonable employee would have found materially adverse; and (4) a causal connection existed between the employee’s protected activity and the adverse action taken by the employer.” Guarino v. St. John Fisher Coll., 321 F. App’x 55, 58 (2d Cir. 2009) (citing Kessler v. Westchester Cty. Dep’t of Soc. Servs., 461 F.3d 199, 205-06 (2d Cir. 2006)).  The plaintiff’s burden in this regard is “de minimis,” and “the court’s role in evaluating a summary judgment request is to determine only whether proffered admissible evidence would be sufficient to permit a rational finder of fact to infer a retaliatory motive.”  Jute v. Hamilton Sundstrand Corp., 420 F.3d 166, 173 (2d Cir. 2005) (quoting McMenemy v. City of Rochester, 241 F.3d 279, 282-83 (2d Cir. 2001)) (internal quotation marks omitted). 

In Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53, 68 (2006), the Supreme Court explained that the type of adverse action that may be challenged under the anti-retaliation provision of Title VII is different—and broader—than what may be challenged under the anti-discrimination provision.^[6]  For purposes of a retaliation claim, the Court held, a plaintiff must show “that a reasonable employee would have found the challenged action materially adverse, which in this context means it might well have dissuaded a reasonable worker from making or supporting a charge of discrimination.”  Id. (internal quotation marks and citation omitted).  To meet this standard, the Court held, a retaliation plaintiff need not show that the harm in question constituted an “ultimate employment action.”  Id. at 64, 67.  Although the anti-retaliation provision “cannot immunize [an] employee from those petty slights or minor annoyances that often take place at work and that all employees experience,” the Court said, it “prohibit[s] employer actions that are likely ‘to deter victims of discrimination from complaining to the EEOC.’” Id. (citation omitted).

The Burlington Northern Court explained that giving “adverse action” a different meaning for retaliation claims than for substantive discrimination claims is based on the differing language of the respective provisions in Title VII.  As the Court observed, the statutory prohibition against substantive discrimination, 42 U.S.C. § 2000e-2, makes it unlawful for an employer to engage in practices that “affect employment or alter the conditions of the workplace,” whereas “[n]o such limiting words appear in the antiretaliation provision,” 42 U.S.C. § 2000e-3(a); Burlington Northern, 548 U.S. at 62-63.    

In Kessler, issued two months after Burlington Northern, this Court ruled that Burlington Northern effectively rejected this Circuit’s former legal standard for retaliation, which had required an employee to show a “significant change[] in an employee’s conditions of employment.”  Kessler, 461 F.3d at 207 (quoting Williams v. R.H. Donnelley, Corp., 368 F.3d 123, 128 (2d Cir. 2004) (a lateral transfer without more, regardless of how it is viewed by the employee, “does not . . . render the denial or receipt of the transfer [an] adverse employment action”)).  Applying the Burlington Northern standard, the Kessler Court held that the transfer to which the plaintiff objected “could well [] dissuade[]” an employee from lodging a discrimination complaint because, even though the compensation and job title were the same, it required him to perform lower-level work and deprived him of broad discretionary functions.  Kessler, 461 F.3d at 209-10.

Subsequent published decisions of this Court have generally followed Kessler and applied Burlington Northern.  See, e.g., Rivera v. Rochester Genesee Reg’l Transp. Auth., 743 F.3d 11, 26 (2d Cir. 2014) (being threatened with job loss for filing an EEOC charge could “dissuade[ ] a reasonable worker from making or supporting a charge of discrimination”); Patane v. Clark, 508 F.3d 106, 116 (2d Cir. 2007) (allegations that supervisors “specifically conspired to ‘not give [plaintiff] work’ in order to ‘make her leave’” if she engaged in protected activity “surely meet Burlington Northern’s standard” to dissuade).[7]

A few recent, unpublished decisions of this Court, however, do not apply Burlington Northern at all.  Instead, they rely, incorrectly, on pre-Burlington Northern discrimination or retaliation precedent.  See, e.g., Carvalho v. Associated Brands, Inc., 707 F. App’x 742, 744 (2d Cir. 2017) (“In order to establish a prima facie case of retaliation under the ADA, Carvalho must show, inter alia, that Associated ‘took adverse employment action against him.’ . . . Although ‘adverse employment actions are not limited to pecuniary emoluments,’ they must rise to the level of ‘materially adverse change[s] in the terms, privileges, duration[, or] conditions of employment.’”) (quoting Treglia v. Town of Manlius, 313 F.3d 713, 719 (2d Cir. 2002)); Szwalla v. Time Warner Cable, LLC, 670 F. App’x 738, 740 (2d Cir. 2016) (“The district court correctly concluded that the majority of [the defendant’s] actions alleged by Szwalla did not constitute adverse employment actions.”) (citing Galabya). While this Court considers these decisions non-precedential, see 2d Cir. R. 32.1.1, they appear in caselaw databases and may be cited by parties in litigation.

In this case, much as in the unpublished cases just described, the district court made no mention of Burlington Northern, Kessler or its progeny, or the proper legal standard governing retaliation claims under the ADEA.  Instead, the court relied primarily on Gorzynski, which merely recited the basic prima facie case standard for a Title VII retaliation case (including the “adverse employment action” language) followed by a barebones citation to Kessler, without any further elaboration.  Gorzynski, 596 F.3d at 110.  The court then stated incorrectly that Gorzynski held, quoting Galabya, that a retaliation plaintiff was required to show a “materially adverse change in the terms and conditions of employment.” SPA-10.  Gorzynski does not cite Galabya at all and, moreover, does not discuss the retaliation adverse action standard at all beyond the prima facie case.  Gorzynski, 596 F.3d at 110-11. 

The district court appears to have derived its unduly narrow “adverse employment action” standard directly from Galabya, which was an age discrimination case, not a retaliation case.  Galabya, 202 F.3d at 639-40.  While the district court’s approach might have been appropriate in this Court prior to Burlington Northern, it is legally incompatible with Burlington Northern, as well as with this Court’s binding precedent in Kessler and its progeny.

B.   The District Court’s Rationale for Granting Summary Judgment on Garett’s Retaliation Claim Cannot Survive Application of the Correct Legal Standard.

1.     The District Court Erred in Concluding that, on Summary Judgment, Garett’s Evidence Was Insufficient to Demonstrate an Adverse Action for Purposes of a Retaliation Claim.

To determine whether a reasonable person would have been deterred from seeking to vindicate her rights under the ADEA, the Court properly takes a holistic rather than a piecemeal approach.  See Hicks, 593 F.3d at 165 (“In determining whether conduct amounts to an adverse . . . action, the alleged acts of retaliation need to be considered both separately and in the aggregate, as even minor acts of retaliation can be sufficiently substantial in gross as to be actionable.”) (internal citation and quotation marks omitted).  When applying this approach to the facts presented, and viewing them under the correct legal standard—i.e., whether Garett’s treatment would have dissuaded a reasonable employee from engaging in protected activity— the district court’s rationale for granting summary judgment to Anthropologie on Garett’s retaliation claim does not withstand scrutiny. 

The district court began its analysis by stating that Garett could not have been subjected to an “adverse employment action” because she was “promoted” twice while working for the defendant: once from part-time to full-time associate, and once to apparel supervisor.  SPA-11.  However, viewing the record in the light most favorable to Garett, a reasonable jury could readily disagree.  As to Garett’s first promotion to full-time associate, which took place shortly after her March 2013 transfer to White Plains, the uncontroverted record evidence demonstrates that it occurred before any of Garett’s complaints to the hotline or conversations with corporate management.  Therefore, even if Garett’s move from part-time to full-time is considered a promotion, it is immaterial to whether Anthropologie began retaliating against Garett after she began complaining.

As to Garett’s “promotion” to apparel supervisor, the record evidence supported a finding that, in fact, it led to worse treatment for Garett.  Although Garett received the promotion, she was also required to remain under Bentley’s unchecked supervision.  A-218, 258.  And after Bentley learned that she had been officially reprimanded, in part, because Garett had reported that Bentley told her she was “too old” to ever be promoted, Bentley used her authority to deprive Garett of her managerial responsibilities.  A-194, 254, 497-98.  Moreover, when Garett reported on the company hotline that Bentley’s poor treatment was escalating, upper management failed to respond.  A-497-98.  Yet, Garett was still required to report to Bentley. A-218.

A jury could also find that Shearer, the corporate manager responsible for acting on all of Garett’s discrimination and retaliation complaints and partially responsible for denying Garett’s Edgewater transfer request, told Garett that she had to either accept a transfer to Greenwich, where there was no management vacancy, “or [be] fired.” A-267.  Finally, a jury could consider that, three weeks after the transfer, Orr, the same person who had treated Garett poorly a year earlier, told Garett “you’re done” and “it’s over” because she violated a company policy that, by its very terms, she did not violate.  A-277-79.  This evidence, taken together, would allow a reasonable jury to reach a very different conclusion from the district court as to whether Garett was “promoted twice” in lieu of being subjected to an adverse action for retaliation purposes.

The district court also stated that Garett’s transfer to the Greenwich store could not be actionable because “[m]erely being transferred to a different location than requested, on its own, does not constitute an adverse employment action.” SPA-11 (emphasis added).  The court further cited Galabya, 202 F.3d at 641, for the proposition that “a transfer is only an adverse employment action if it results in a setback to one’s career.”  Id. 

Even apart from the erroneous legal standard based on Galabya, see supra at 11-12, 16, the record evidence surrounding Garett’s Greenwich transfer amounted to far more than evidence of an unwanted transfer “on its own.”  For example, a reasonable jury could find that corporate’s reversal of the Edgewater transfer, where there existed a vacant apparel supervisor position (A-265), in favor of Greenwich, where the apparel supervisor position was already filled and where Garett would work for Orr again (A-268), was not a mere lateral transfer but rather a transfer designed to set Garett up for failure.  And, in fact, three weeks later, after being relegated again to the fitting room and not being allowed to perform many of the apparel supervisory duties (A-269), Garett was given a “third and final warning” that was actually her first (A-505), ostensibly for violating a company policy that, on its face, she did not violate (A-360, 507). 

This Court confronted analogous facts in Kessler, where “[t]he transfer did not affect Kessler’s job title, job grade …, salary, benefits, or hours of work. However, … Kessler found that he had been stripped of his prior responsibilities, which were replaced by menial tasks.”  461 F.3d at 202.  The Court concluded that Kessler “presented evidence sufficient to create a genuine triable issue as to whether the reassignment to which he was subjected could well have dissuaded a reasonable employee in his position from complaining of unlawful discrimination.”  Id. at 209.  In Garett’s case, not only was she stripped of her supervisory responsibilities and made to perform menial tasks after transferring to Greenwich, she was subjected to additional retaliatory treatment in the form of discipline for violating a policy she had not in fact violated.  A reasonable jury could readily find that her Greenwich transfer met the Burlington Northern standard for an adverse action.

2.     The District Court Erred Legally and Factually in Stating That Garett Could Not Demonstrate a Prima Facie Case of Retaliation Because Her Managers Were Unaware of Her Hotline Complaints at the Time of Her Transfer.

The district court also held that Garett failed to establish a prima facie case of retaliation because there was no “evidence that either one of her managers [presumably Bentley and Orr] was even aware that she made a complaint to the Hotline at the time of her transfer.”  SPA-11.  Initially, we note that the court’s characterization of the record is simply incorrect.  See, e.g., A-190, 416-17 (Corporate manager Shearer told Bentley in July 2013 that Garett lodged complaints on the company hotline about Bentley’s age-based remarks and issued Bentley’s warning based in part on them.); A-347, 354 (Shearer called Orr soon after Garett’s August 2013 hotline complaint and told Orr that she had to accept Garett as a transfer, even though Orr, as a store manager, had the authority to be the ultimate decision-maker on transfer requests.). 

More importantly, though, the district court’s focus on Bentley and Orr was both legally and factually misplaced.  As this Court has held, “[n]either this nor any other circuit has ever held that, to satisfy the knowledge requirement, anything more is necessary than general corporate knowledge that the plaintiff has engaged in a protected activity.” Kessler, 461 F.3d at 210 (quoting Gordon v. N.Y. City Bd. of Educ., 232 F.3d 111, 116 (2d Cir. 2000)).  See also Papelino v. Albany Coll. of Pharmacy of Union Univ., 633 F.3d 81, 92 (2d Cir. 2011) (“Even if the agents who carried out the adverse action did not know about the plaintiff's protected activity, the ‘knowledge’ requirement is met if the legal entity was on notice.”); Henry v. Wyeth Pharmaceuticals, Inc., 616 F.3d 134, 148 (2d Cir. 2010) (same).  Therefore, the court erred by failing to determine whether a reasonable jury could conclude that the company, not Garett’s supervisors, was on notice of her age discrimination and retaliation complaints. 

Corporate knowledge is not disputed on this record. Corporate official Shearer testified that after receiving Garett’s age discrimination complaint and her subsequent complaint of management’s escalating that poor treatment, she consulted with her supervisor Berry and then told Garett Anthropologie had denied her transfer request to Edgewater in favor of a transfer to Greenwich.  A-422, 425-26.  And Jen Ernst, the corporate official handling the Edgewater hiring, testified that Shearer called her to tell her that Garett had just lodged a complaint on the company hotline against Shearer regarding the transfer delay.  A-460-61.  Soon thereafter, while Ernst remained silent, Shearer and her supervisor denied Garett her Edgewater transfer. Id.; A-425-26.  Therefore, the corporate officials that blocked the transfer did so with full knowledge of Garett’s repeated age-based complaints.  Nothing more is needed.

The district court’s conclusion that neither Bentley nor Orr knew about Garett’s phone calls to the company hotline, whether supported by the record or not, has no legal significance.  The uncontested evidence shows that they were not the decision-makers as to her transfer.  Therefore, because a reasonable jury could conclude on this record that Anthropologie was aware of Garett’s protected activity when it made the transfer decision, Garett’s evidence satisfies the knowledge requirement for summary judgment purposes. 

3.     Garett’s Evidence Is Sufficient to Support a Jury Finding of a Causal Link Between Her Protected Activity and Her Transfer. 

A reasonable jury could find a causal connection between Garett’s complaints to the hotline and the denial of her transfer based on the close temporal proximity between them.  See, e.g., Zann Kwan v. Andalex Group LLC, 737 F.3d 834, 845 (2d Cir. 2013) (“[E]ven without direct evidence of causation, ‘a plaintiff can indirectly establish a causal connection to support a … retaliation claim by showing that the protected activity was closely followed in time by the adverse …  action.’”) (citing Gorman-Bakos v. Cornell Coop. Extension of Schenectady Cty., 252 F.3d 545, 554 (2d Cir. 2001)).  The record reflects that after Garett made her June 2013 age discrimination complaint, Bentley assigned Garett to a particularly rigorous schedule, unique to Garett, between June 26 and July 31.  A-495-96.  Then, after calls to Shearer and the company hotline in August requesting a transfer to Edgewater ultimately resulted in an early September interview (A-498-99), a week later, Shearer denied the Edgewater transfer in favor of a transfer to Greenwich.  A-425-26.  Garett alleges she was fired only three weeks later.  A-503-04.

The tight time frame between Garett’s several contacts with corporate management and the complained-of adverse actions is sufficient to permit a finding of causation.  See, e.g., Gorzynski, 596 F.3d at 110 (“Though this Court has not drawn a bright line defining, for the purposes of a prima facie case, the outer limits beyond which a temporal relationship is too attenuated to establish causation, we have previously held that five months is not too long to find the causal relationship.”) (citing Gorman-Bakos, 252 F.3d at 555).  

II.   THE DISTRICT COURT MISCONSTRUED MORGAN’S HOLDING THAT A PLAINTIFF MAY NOT RECOVER FOR TIME-BARRED “DISCRETE ACTS” TO MEAN THAT IT COULD NOT CONSIDER EVIDENCE OF SUCH ACTS IN ANY CONTEXT.

In National Railroad Passenger Corp. v. Morgan, 536 U.S. 101 (2002), the Supreme Court addressed the viability of the “continuing violation” doctrine in discrimination cases, drawing a distinction between hostile work environment claims and claims involving “discrete acts.”  Hostile work environment claims, the Court held, are “composed of a series of separate acts that collectively constitute one ‘unlawful employment practice,’” id. at 117 (quoting 42 U.S.C. § 2000e–5(e)(1)); thus, so long as any component act falls within the 300-day charge-filing period, the plaintiff’s charge is timely as to the entire hostile work environment claim.  Id.  “[D]iscrete discriminatory acts,” on the other hand, “are not actionable if time barred, even when they are related to acts alleged in timely filed charges.”  Id. at 113.  Although plaintiffs may not bring suit as to such time-barred claims, the Court explained, “the statute [does not] bar an employee from using the prior acts as background evidence in support of a timely claim.”  Id.; see also Petrosino v. Bell Atl., 385 F.3d 210, 220 (2d Cir. 2004) (characterizing “earlier promotion denials” as “relevant background evidence”) (internal quotation marks omitted).

The district court properly cited Morgan for the proposition that “[a] discrete completed act that occurs outside the 300-day limitations period is time-barred.”  SPA-6-7.  But the court then ignored two other important aspects of Morgan in its analysis of this case.  First, it made no mention of the fact that Morgan applies a different timeliness rule to hostile work environment claims, and it did not analyze the evidence any differently for Garett’s hostile work environment claim than it did for her “discrete acts” claims.  Second, the court erred by considering only whether Garett had adduced sufficient evidence to support her retaliation claim based on “her time at defendant’s stores after February 16, 2013” (SPA-10), failing to recognize that earlier incidents may legitimately be considered as relevant background evidence for her claim.  Morgan, 536 U.S. at 113. 

Events that occurred when Garett was working for Orr at the Roosevelt Field store may have some bearing on Garett’s discrimination, hostile work environment and retaliation claims.  Orr was the store manager both at the beginning of Garett’s employment, at Roosevelt Field, where Garett alleges she was treated less favorably than her significantly younger coworkers, and at the end, at Greenwich, when Orr fired her based on inherently inconsistent rationales.  A-488-89, 503-05.  Orr and Bentley, who explicitly told Garett she was “too old” to work in Anthropologie management, had a long-standing acquaintanceship.  A-353.  Orr, who testified that she decided to transfer Garett to White Plains, knew Bentley because Orr had previously worked for Bentley at White Plains.  And, Garett testified, according to Bentley, Orr’s transfer decision was based on White Plains’s older “demographic.”  A-242-43, 489-90.  Therefore, because Orr remained influential throughout Garett’s employment at Anthropologie, the events that took place prior to February 16, 2013, are relevant background evidence properly considered by the court.  See, e.g., Fitzgerald v. Henderson, 251 F.3d 345, 365 (2d Cir. 2001) (“a statute of limitations does not operate to bar the introduction of evidence that predates the commencement of the limitations period but that is relevant to events during the period”).

CONCLUSION

For the foregoing reasons, the judgment of the district court should be reversed and the case remanded for further proceedings.

Respectfully submitted,

 

JAMES L. LEE

Deputy General Counsel

 

JENNIFER S. GOLDSTEIN

Associate General Counsel

 

s/Elizabeth E. Theran

ELIZABETH E. THERAN

Assistant General Counsel

 

SUSAN L. STARR

Attorney

U.S. EQUAL EMPLOYMENT

OPPORTUNITY COMMISSION

Office of General Counsel

131 M St., N.E., 5th Floor

Washington, D.C. 20507

(202) 663-4720

(202) 663-4727

elizabeth.theran@eeoc.gov

susan.starr@eeoc.gov

CERTIFICATE OF COMPLIANCE

I certify that this brief complies with the type-volume limitation of Fed. R. App. P. 29(a)(5) and 32(a)(7)(B) because it contains 5943 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(f).

I certify that this brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because it has been prepared in a proportionally spaced typeface using Microsoft Word 2016 in Palatino Linotype 14 point.

 

s/Elizabeth E. Theran

Assistant General Counsel

Equal Employment Opportunity Commission

 

 

 

 

Dated:  February 9, 2018

CERTIFICATE OF SERVICE

I, Elizabeth E. Theran, certify that I electronically filed the foregoing brief with the Court via the appellate CM/ECF system this 9th day of February, 2018, and, in accordance with LR 31.1, that I will submit for filing six copies of the foregoing brief with the Court by next business day delivery, postage pre-paid.  I also certify that all counsel of record, who have consented to electronic service, will be served the foregoing brief via the appellate CM/ECF system. 

 

 

s/Elizabeth E. Theran

ELIZABETH E. THERAN

Assistant General Counsel

 

U.S. EQUAL EMPLOYMENT

OPPORTUNITY COMMISSION

Office of General Counsel

131 M St., N.E., 5th Floor

Washington, D.C. 20507

(202) 663-4720

elizabeth.theran@eeoc.gov