Age-harassment case is headed for trial after 2d Circuit reinstates the claim

The Second Circuit only issues a handful of epic employment discrimination cases each year, using the occasion to survey the legal landscape before hammering a district judge who improperly granted management's motion for summary judgment. In this case, the Court of Appeals reinstates an age-harassment and retaliation case.

The case is Davis-Garett v. Urban Outfitters, Inc., issued on April 8. Plaintiff was in her 50's, working for a clothing retainer with younger coworkers and managers. She started working at the Roosevelt Field store before she was shipped to White Plains. She was then denied a transfer to the Edgewater, N.J. location. Plaintiff brings two claims: hostile work environment because of her age, and retaliation for complaining about the work environment. I'll start with the age-harassment and our next installment will cover the retaliation and the related summary judgment observations that the Second Circuit (Kearse, Katzmann and Chin) fleshed out in the ruling.

At the Roosevelt Field store, supervisors stuck plaintiff in the fitting room while the younger workers were trained to handle various other store-related tasks. When the Roosevelt Field store closed down and the employees were sent to work at other locations, plaintiff was sent to White Plains, more than 30 miles away. She was told she was sent to White Plains because of the "demographics" of that store, 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." In White Plains, plaintiff again found herself in the fitting room and received no training, yet she was often called upon to pick up "unsanitary trash or waste." She was also ostracized by younger workers, who repeatedly called plaintiff "mom" or "mommy" and "asked her to take care of their cuts, bruises and other ills" and they "consulted her about their personal problems." Even when plaintiff became a full-time customer associate in the White Plains store, she still worked the fitting room, and when she asked about a promotion to the apparel supervisor position, Store Manager Bentley told plaintiff that she "was too old for the job" and "you don't have the energy" and "the only reason you were sent here is because of the demographics here . . . the people that shop here are older and you're old" and "you would never be able to handle being a manager."

As it happens, in White Plains, plaintiff was ultimately promoted to Apparel Supervisor, Bentley was hostile towards her and lodged unfair criticisms and continued to assign her the fitting room. They also overworked plaintiff, having her work 10 consecutive days and closing the store 10 consecutive nights, an exhausting sequence. Another supervisor criticized plaintiff's "speed" and "pace" nearly every day. The Court concludes:


The district court rejected plaintiff's hostile work environment case on summary judgment. The Court of Appeals reinstates the claim after providing a good tutorial on hostile work environment law in the Second Circuit. Not only did the district court improperly ignore any hostile ageist acts that took place prior to the 300-day statute of limitations (the Supreme Court holds those otherwise time-barred acts are actionable if the hostile environment continued into the 300-day period), but the Circuit concludes 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.

Very often, when you read these appellate rulings, you wonder how the case got dismissed on summary judgment. I cannot answer that question for you. The evidence seems clear, except that perhaps the district court judge forgot that prior age-related comments factor into the analysis; once that evidence enters the picture, the case looks very different. What wins the appeal for Garett is the volume of age-related comments combined with the age-neutral acts of hostility that, viewed in the context of the ageist slurs, may be presumed to be age-related as well. The point here is that we look at the totality of the evidence in determining whether someone has a hostile work environment case.