ADEA retaliation case will go to trial after all

Right now, eight hard-working Americans are sitting around watching television, reading the paper, looking at Facebook or playing with the family dog. They do not know each other, and none have any experience with the American legal system. They do know it yet, but some day, perhaps later this year, they will all convene at the United States Courthouse in lower Manhattan go decide whether Blair Davis-Garett was retaliated against by Urban Outfitters for complaining about age discrimination.

The case is Davis-Garret v. Urban Outfitters, issued on April 8. Plaintiff was an older employee who suffered age-related harassment in defendant's retail stores in White Plains and Long Island. She also worked at the Greenwich store, where she was given lousy job assignments and denied training. The Greenwich maltreatment happened shortly after plaintiff called the company hotline to complain about the age-harassment, which took the form of insulting ageist comments from supervisors.

The trial court dismissed the retaliation claim on summary judgment, ruling that plaintiff could not show her bad treatment at the Greenwich store was a material alteration in the terms and conditions of her job duties. The Second Circuit says this ruling might have made sense in 2005, but not anytime since, because in 2006 the Supreme Court said in the Burlington Northern case (one of the last remaining pro-plaintiff employment discrimination cases from that Court) that retaliation cases involve a different definition of "adverse action," which in this context means any management response to the discrimination complaint that might dissuade a reasonable employee from again speaking out against discrimination. The idea is that if management responds to discrimination complaints in a hostile way that does not amount to demotion, termination, etc., that response might still deter people from complaining, and the discrimination laws will then be violated without any consequence.

The Second Circuit in this case takes the time to remind us of the basic rules governing summary judgment, including the rule that all reasonable inferences must be drawn in the plaintiff's favor in determining if the plaintiff can win at trial. The trial court in this case did not do that, for the following reasons. First, while plaintiff was in fact promoted to the position that she wanted, as the Second Circuit (Katzmann, Chin and Kearse) notes, that only happened after she complained about discrimination, and when she got the promotion, no one trained her, she was unfairly criticized for deficient performance, she was scheduled to perform unsavory job assignments and management made ageist comments toward her. While the district court said a mere job transfer is not enough for a retaliation claim, it overlooked how that job offer was countermanded after the decisionmaker learned about the discrimination complaint, and she was sent to a location where that position was already filled and she was then denied training and given undesirable assignments. As this treatment would prevent a reasonable employee from speaking out against discrimination, plaintiff has a retaliation case. The Second Circuit notes that management can still win this case, and the all the Court is doing is finding that plaintiff may prevail at trial. The final decision on this case will be made by those jurors who are now sitting at home watching television, reading scholarly journals or staring into the night sky. Unless the case settles.