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Davis-Garett v. Urban Outfitters, Inc., No. 17-3371 (2d Cir. Apr. 8, 2019)

The Second Circuit, in an ADEA hostile work environment and retaliation case, reminds district court judges that they are not to weigh or evaluate credibility of evidence submitted on summary judgment. Among other things, the district court forgot that "[i]t was required to disregard the contrary statements from [defendant's witnesses] that a jury would not be required to believe."

Davis-Garett v. Urban Outfitters, Inc., No. 17-3371 (2d Cir. Apr. 8, 2019): "From September 2012 until early October 2013, [plaintiff] Garett" - in her mid-50s - worked for Anthropologie, a chain of clothing and lifestyle stores operated by Urban Outfitters. She worked at three locations: Roosevelt Field Mall on Long Island, New York; White Plains, New York; and Greenwich, Connecticut. Her "managers were [mostly] in their 20's or early 30's."

Garett testified that she was denied sales training (that could lead to promotions); was assigned undesirable shifts and duties (e.g., supervising the fitting rooms, cleaning up, opening and closing); was told that she was transferred to White Plains because "people [who] shopped in [that] store were older and ... I was old"; was repeatedly, over her protests, called "Mom" and "Mommy" by young co-workers; and was denied a transfer because, she was told, "I was too old for the job." She was also regularly criticized about her "speed" and "pace" by her manager in a way that she interpreted as commentary on her age.

Although she complained to the company multiple times about the conduct - via an anonymous employee hotline - she was either left uninformed about the results of the company's investigations, or else the company's reprimands were too mild and ineffective. It also led, allegedly, to retaliation. When Garret applied to transfer to a store in Manhattan, the subject of some of Garett's complaints supposedly blocked the application. She was eventually terminated for supposedly violating a company directive to avoid "automatically calling the police on suspected shoplifters," after a customer complained that he was wrongfully whisked out of the store by two uniformed officers.

The company on summary judgment submitted testimony from its managers offering age-neutral and non-retaliatory explanations for its decisions. The district court substantially adopted the company's explanations over the plaintiff's and granted summary judgment on her ADEA and state-law claims.

The Second Circuit - with amicus briefs submitted by the EEOC and the national and New York branches of the National Employment Lawyers Association - vacates the decision, with an extensive 45-page opinion that describes three primary sources of error.

1. Artificially cutting-off evidence by timeframe:

"[W]e 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 age-disparaging 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."

2. Applying the wrong standard of harm in a retaliation case: The panel holds that the correct standard is derived from Burlington Northern & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006), requiring proof only that the challenged action materially adverse, meaning that "it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination." The district court applied an older, stricter standard from the circuit's pre-White case law.

The panel also holds that summary judgment could not be affirmed on the alternative basis that Garett could not prove causation. Plaintiff presented evidence that managers were aware of her complaint of age discrimination, and that inferences could be rationally drawn from the record that the particular managers who made the adverse decisions had knowledge. The panel also finds holes in the employer's supposedly legitimate, non-discriminatory reason for her discharge: "any problems in Edgewater do not provide a justification for [the manager]'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."

3. Weighing and evaluating credibility of evidence on summary judgment: Finally, the panel holds that the district court did not honor the standard for granting summary judgment that judges must scrupulously avoid weighing evidence - a job specifically entrusted to juries.

"In light of this well established [summary judgment] 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."

Such instances included (1) determining as a matter of law that the alleged harassment was not "severe or pervasive"; (2) failing to draw the inference in plaintiff's favor that comments like "You don't have the energy" or "the stamina" for the job were veiled comments on her age; (3) ignoring that despite her promotion at one point, she was still assigned the same awful duties and unwanted shifts; and (4) finding that her unwanted transfer was not materially adverse, despite that plaintiff "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.'"

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