An age discrimination suit brought by a former employee of clothing retailer Anthropologie was improperly dismissed on summary judgment by the district court, which failed to apply both the proper legal standard and failing to view the evidence in the light most favorable to the plaintiff, the U.S. Court of Appeals for the Second Circuit has ruled.

Judge Griesa

Former U.S. District Judge Thomas Griesa of the Southern District of New York misapplied prior precedent in the case brought by Blair Davis-Garett against her former employer in 2015, rather than the U.S. Supreme Court's interpretation of the Age Discrimination in Employment Act, following the high court's 2006 decision in Burlington Northern & Santa Fe Railway v. White, according to the panel.

Additionally, Griesa failed to give Davis-Garett's testimony the proper review before dismissal, Chief Judge Robert Katzmann, and Circuit Judges Amalya Kearse and Denny Chin found. The record showed the district court applying “a piecemeal assessment of items” or simply a “rejection of Garett's sworn statements,” contrary to the proper review of a motion for summary judgment.

Over the course of a year Davis-Garett worked for three different Anthropologie stores, beginning in September 2012. At the time she was 54 years of age. Between locations in New York and Connecticut, Davis-Garett claims to have continuously suffered from a hostile work environment, as well as retaliation for lodging discrimination complaints.

Davis-Garett claimed she was ostracized by coworkers, who repeatedly referred to her as “Mommy.” When a new position she was interested in at the company's White Plain store opened, she claimed a manager told her she was too old for the job, in a company that filled with younger workers. She did didn't have the energy for the position, the manager allegedly told Davis-Garett.

After submitting a supposedly anonymous complaint about the treatment she was receiving, Davis-Garett claimed she was given a bogus promotion, which required her to work the least desirable shifts in the least desirable portions of the store. This call would eventually be shared with a manager in a New Jersey branch of the store who had offered Davis-Garett a transfer position. The offer was rescinded, according to the plaintiff.

Davis-Garett's employment would end at Greenwich, Connecticut, location, where she was fired after calling the police to remove what she feared was a potential shoplifter. Management claimed she had violated a company policy to refrain from automatically calling the police on suspected shoplifters.

Following her discrimination claim in Manhattan federal court, Davis-Garett saw her claims dismissed by Griesa in September 2017. The district court found a number of her claims untimely, as more than a few occurred before the 300 day limit ahead of her filing in December 2015.

The court went on to quote language from a Second Circuit decision from 2000 that relied on the framework established by the U.S. Supreme Court in McDonnell Douglas v. Green to dismiss her retaliation claims, based on a failure to show an adverse employment action that changed the terms and conditions of her employment.

White, the panel stated, changed that. Now, “the harm element of a retaliation claim is not to be analyzed in the same way as the harm from an alleged substantive act of discrimination,” the panel stated. The question now was could the alleged action faced by the employee reasonably dissuade a person in her position from complaining about unlawful discrimination?

The panel found that, in reviewing the facts in a light most favorable to Davis-Garett, enough was shown to plausibly claim as much—and that the district court was wrong to apply the old standard instead.

The panel further noted that the principles for governing the consideration of a motion to dismiss, at this point, “well established:” all of the evidence in the record should be reviewed, and the court may not make credibility determinations or weigh the evidence, and must draw all reasonable inferences in favor of the non-moving party.

The panel found the district court failed to do this, either in crediting Davis-Garett's statement appropriately in her discrimination claims, or in her descriptions of how she lost a job offer after complaining to management regarding the retaliation claims.

Davis-Garett was represented on appeal by Schwartz Perry & Heller name attorney Brian Heller. In a statement, Heller said the district court's decision “set the bar so high that an age discrimination plaintiff would never be able to get to a jury.”

“We are pleased that the Second Circuit reaffirmed that a jury should be the one to decide these cases, especially where the age discrimination was so blatant,” Heller said. “Age discrimination is the next #metoo movement and this vulnerable population needs and deserves the protection of the law.”

Anthropologie and its parent company Urban Outfitters Inc. were represented by Morgan, Lewis & Bockius partner Blair Robinson. He did not respond to a request for comment. A spokeswoman for the company likewise did not respond to a request for comment.

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