they please the court my name is brian heller i'm going to turn a four player davis character this case is about making sure that lower courts do not should use summary judgment to shut out victims of age discrimination there are two images t demonstrate what this case is about the first takes place in the back of a pallet in the back of the westchester mall in june two thousand and thirteen where blair garrett is sitting on a pallet next to her supervisor blair is there to discuss her desire to advance with anthropology to become a supervisor for an open position and her thirty three year old supervisor says to her it would be completely impossible for her to be promoted because she did not have the energy or the stamina and she was too old for the job this statement that blair was too old for job was it cut to her core it talked about how anthropology viewed her as a person and how it was denying her opportunities based on her age how do you respond to the argument that the very same people of that garrett is now claiming discriminated against her also promoted her twice and granted her request to transfer stores twice though those present many factu questions as far as the two promotions go one promotion was from being a seasonal employee to a full time employee there was no advancement no additional responsibilities and the second promotion happened because blair complained that she was told she was too old for the position she called the hotline and then she after a perfunctory interview she received that position reporting to the same person who told her she was too old for that job and that person's that supervisors conduct revealed she did not believe that player could do the job she had previously told her she didn't have the energy or the stamina for the role she had to do all the closings and openings and so after she got the promotion she tells her now she has to do a special way of training which no one else had to do she had to do ten openings or zero and ten closings in a row within ten days she's telling miss garrett that she's the worst supervisor she had ever seen so to say that well because she got the promotion there was no hostility to workplace doesn't look at the facts the way they are this is like this court's decision in cross vs new york city transit authority where plaintiffs were reluctantly promoted and then there were efforts to try to demote them so in this case the promotions not dispositive you look at the hostility that she experience and it's not just the comments that miscarriage pointing to is the totality of the experience the being relegated to the fitting room being passed over for promotion in favor of a twenty four year old recent college graduate the hostile environment from hostile environment when you say straight discrimination came two options there was hostile environment or some type of adverse employment action in this case as it is a perfect example of how a hostile work environment can be discrimination quite often plain of them separately and i'm just wondering if that was done here or now i mean to the extent that her terminations could be deemed as it into a hostile environment what the motivation is for the various actors was it was she terminated just because of her age by the supervisor she had had before who she had sent to attend her to be the fitting room at a previous environment but here things really changed because of davis complaint she complained twice to the hotline and then the third time she complains to the hotline she's terminated within weeks she had taken steps to find another role a edgewater new jersey store that many people do not want to go to because it's not in new york and she was there she had an interview it went very well they were desperately in need of personnel and she got a job there and when her suit her district manager dragged her feet in processing the the move she complained to the hotline and this manager she complained about amy shear who had previously handle players complaints about that young supervisor set on a phone call where she about blair's complaint to the hotline said she's not going to edge water she's going to go to greenwich new drench connecticut a place that she had never discussed before where they already had an apparel supervisor the employer argues that she wasn't just relegated to the fitting room there's evidence that she did was out on the floor what's your response to that well there there is evidence that she was relegated just to the sitting room for most of the day yes there were times when she wasn't in the fitting room but for the majority of the time she was in the fit even when she was a manager the managers were not supposed to be in the fitting room but the tumble that she had from her third complaint being terminated within weeks of her final complaint is revealing i have delegated three minutes may please the court then for the e e o c just ask her question just preliminarily is there any sort of clearance that you have to undertake with the other part of the government we've had previous cases where the e e o c filed and then the department of justice came in and filed in the opposite position that is extremely unusual error on our involving a private sector defendant instead of a public sector no there is no clearance from the department of justice required the district court in this case held that retaliatory adverse action requires a materially adverse change in the terms and conditions of employment the court is right that that would be the standard for a substantive discrimination adverse employment action but that is not the standard for an adverse action in the retaliation context in the context of retaliation an adverse action is anything that might just swayed a reasonable employee from protected conduct the supreme court made this crystal clear in two thousand and six in burlington northern two months later this court recognized that in kessler but the district court in this case did not even cite burlington the defendant in its brief does cite burlington but nevertheless continues to analyze the retaliation claim with respect to what they call it materially adverse employment action and they talk about it in terms of the terms and conditions of employment especially on page thirty three of their brief this court  standard not the retaliation adverse action standard both of those cases were unpublished they were both pro se and they probably weren't briefed well nevertheless they're out there the reason the e e o c is here today is to say that it too this court's decision which is also unpublished force versus new york state office of mental health which said that assignments within an employee's job description or generally known material universe well again that would be terms and conditions of employment what the supreme court said in burlington is the context matters and things that might not be materially adverse in one situation might very well be material materially adverse in another it depends given the facts of the case whether what happened would reasonably just her a reasonable employee from the complaining so whereas in one case  changing responsibilities within a job description may be trivial in another case it may not and we would argue that applying burlington here a jury could find a retaliatory adverse action and also to clarify the application of the burlington standard thank you retaliation standard it's our position that the proper legal standard was applied if for some reason this court concludes however that there needs to be some sort of clarification as to what the standard is on retaliate it can do so in the context of a affirmative for two key reasons the first is you disagree that the supreme court in burlington held that it's not a mature significant change in conditions of employment standards but whether a reasonable worker would be dissuaded no your honor i did not disagree that the burlington northern standard was in but at the district court apply the burlington northern standard i think that it did i think that the burlington northern case your honor was cited alleged conduct would have dissuaded a reasonable worker from making a charge of discrimination and age in that analysis i think it's a it's a little unclear because they did include the terms terms and conditions of employment but i also think your honor for the reasons that i was alluding to before there is no reason why the court can't clarify the standard here and also issue in a firm and that's for two key reasons and they go to your honor's prior questions the first being there are no actionable adverse employment actions here and in any event the individuals who made the decisions on the transfer and on the written warning the record is undisputed those individuals did not even know that the complaint was made so they could not possibly have the requisite retaliatory motive and therefore there is no causal connection that had been established by the on the opening and closing even if that's part of a of a job description couldn't there be a point where the requirement becomes so on or s that it is problematic i suppose there could be a circumstance your honor but that's not our circumstance here so let me let me break that down into two parts i think there's a part of her claim that suggests that she was overly assigned to work in the fitting room that's not age based harassment your honor that's part of her job she was required to do that like everybody else who did that position there's no suggestion on the resemblance that she spent most of her time in the fitting room and that not true of other points i don't think there she claims on the first part your honor that she spent most of her time  room we have to soon that notch true right but i don't think there's any evidence that she spent more time there and anyway because of her age and younger employees that not well the first question is did she spend more time in the fitting room then younger employees before you get to why and there is a reasonable jury on this record kook conclude that yes she spent a lot more time in the fitting room than other employees i actually don't think your honor that that evidence is in the record and even if it were it doesn't go to and it's not part of an a claim where there's actionable harassment that's a circuit that's the kind of workplace you know gripe and we cite several cases in our brief your honor to talk about the fact that assignments and things like scheduling and things of that sort didn't rise to the level of being adversaries a jury find that being relegated for most of your time to the fitting room would dissuade a reasonable worker from complaining but she would she never complained about  it wasn't related to anything about being a science made a few a few complaints right i mean she did all that caught the hot line on more than one occasion yes your honor she's the first complaint i believe was when she complained about  interaction that she had with her supervisor after which we took proper butyl action the second complaint i believe was maybe six to eight weeks later where she inquired that she didn't think the voluntary transfer that she was seeking was w happening fast enough and you say that is and correct me if i'm misunderstanding that the employment of older workers older than than garrett suggests that there wasn't a hostile work environment but the mere presence of older employees really sheds no light on how any of these employees were treated right let alone whether a reasonable employee in their shoes would have would have felt regarding the work environment i agree with that your honor that that by itself doesn't demonstrate but i think it's helpful context when you consider the totality of the fact that this is someone who worked for a grand total of thirteen months at three different retail store locations where she worked for different managers throughout that time period the first store she leaves the store sends an email to the manager saying how great she was how amazing it was to work with her and she hopes she has the opportunity to do that again then you go to the second store in  district court considered on the hostile work environment claim your honor all of all of the evidence that was proffered and they did make credibility of the terminations as to whether i believe you that the statement was made to hold the court considered it and properly found that  first window of time the first store that she worked at because that conduct fell outside of the limitations period isn't that a big no even though it's untimely for liability it's relevant evidence it's only robots of cases that say even untimely condom use is relevant it's only relevant your honor if they can show which they have not shown that it's part of the same unlawful employment practice that's the standard of the supreme court's decision in morgan no such showing has been made here again she worked for a different supervisor in a different state at the time and i don't think there can be a showing that there was an unlawful employment practice but again i want to know one particular thing which may be relevant to that question your honor which is in this is on their brief page five even if you look at that window of time that was excluded the only conduct about which she complains was again back to the point of she was relegated to the fitting room and the district court considered that evidence and found  that that's not age related so even if this court were to consider that on appeal that's still on a basis to reverse because that's not part of what would be an actionable hostile work environment wasn't the the transfer to connecticut in essence a functional demotion i don't think it was your honor and i think that the second circuit's decision in kessler why would i not because she went so if i take a step back this is someone who after she complained we were looking to see if we could find a way to help her to go to a place where she could feel more comfortable so she was seeking out voluntary transfer situations the first of those was new jersey she she raised her hand and said hey i'd like to be considered for that job she wasn't forced to go it was over own volition she interviews for that job the hiring manager had no idea about the complaint and decided not to fill that role at that given time switching gears and going to the white the greenwich location again this is a circumstance where she was transferred voluntarily and took with her the same the same pay the same benefits her role didn't change if you contrast that with kessler your honor which i think is proper to do under this circumstance in which the appellant urges the court to do kessler involved in markedly different set of facts and circumstances that's a situation where someone made an internal complaint they were moved in voluntarily to a different location and once they were there they were stripped of all meaningful job responsibilities that they had the job was completely different and they were removed from their purview all direct reports that they  and it's our position your honor that's completely different from the facts of the circumstances here i guess i'm just going back for a moment on the the question of  e everyone garance age or older was in the ground in the greenwich the war was in a junior position of customers so shit is that correct i your honor i have i would have to check i think there may have been one least circumstantial evidence that younger people were favored it may be some evidence your honor but it's certainly not enough evidence to suggest that all of those people had a shared motive to discriminate against people who are in the protected class it makes no logical sense that we would hire people who are in the protected class and have them work in those positions only then to treat them in a disparate way that from our perspective  doesn't doesn't make sense well the argument would be hired them to do the dirty work that would be the argument and i think in this circumstance here your honor where we hired someone and then promoted her twice multiple times she made a complaint we took it seriously immediately investigated it and tried to facilitate a voluntary transfer to her we treated her fairly in all respects and obviously i'm out of time thank you thank you thank your honour's just to touch on this argument that the conduct that miscarriage experienced was an age related we have to go back to the comments themselves that the supervisor may think she was too old for promotion look at the context of it this wasn't a stray remark or a joke this was a conversation about player garrets ability to advancement in the company what her value was as a person and kelly bentley said look around you everybody is young and she was right everyone's young there are some low level positions that are filled by older people but this was a management structure that was filled with older people there's a number of factual issues there were three complaints that she made to the hotline not to the transfer was certainly not voluntary to greenwich the argument the factual position that anthropologist put forward was that she was offered a role to greenwich and she took it and she was told it's granted or you're fired the the idea that the people who are involved  terminations didn't know about her complaints the decision to make to send her to greenwich was made on the same phone call where the decider learned about blair's complaint to the hotline and we don't have to prove that everybody knew about it and so this court's clear guidance the plaintiff only needs to show corporate knowledge of her complaint as far as the retaliation goes it's clear that any person would find that the denial of a transfer being sent to a place that represents a setback in her career getting it hostility from the same supervisor could reasonably dissuade someone from engaging in protected activity and you read the district court as having granted a summary judgment with respect to the age discrimination claim  it noted the age discrimination claims specifically related to her terminations but it in it in granting summary judgment at least as i read it it didn't address that claim  misunderstanding the district court seem to think that it held that blair garrett received a written warning that talked about the future even though blair davis never received the warning and the supervisor said she didn't write the warning before the meeting so it's impossible that she