1 7-3371-cv

D avis-Garett v. Urban Outfitters, Inc.

UNITED STATES C OURT OF APPEALS FOR THE SEC OND C I RC UIT

- - - - - - August Term, 2018 ( Argued: October 23, 2018 Deci ded: Apri l8, 2019) Docket No. 17-3371-cv

_ _____________________________________________________ B LAIR DAVIS-GARETT, Plaintiff-Appellant, - v. - U RBAN OUTFITTERS, I NC ORPORATED, ANTHROPOLOGIE, I NC ORPORATED, Defendants-Appellees
.

_ _____________________________________________________ B efore: KATZMANN, Chief Judge, KEARSE and C HIN, C ircuit Judges .

Appeal from a judgment of the Uni ted States Di s t ri ct C ourt for the Southern Di stri ct o f New York, Thomas P. Gri esa, Judge, di smi ssi ng pl ai nti ff' s cl ai ms
o f retal i ati on and hosti l e-work-envi ronment d i scri minati on, i n vi ol ati on of the AgeDi scri minati on i n Empl oyment Act of 1967, 29 U.S.C . §§ 621–634, and state l aws. The

d i stri c t court granted summary judgment i n favor of defendants, rul i ng that pl ai nti ff f ai l ed t o adduce evi d ence (a) of age-rel ated abuse suffi ci ent t o support her cl ai ms o f d i scri minati on, and (b) o f an a d verse empl oyment acti o n suffi ci ent to support her
c l ai ms o f r e t al i ati o n. On appeal, pl ai nti ff contends that the di stri c t court erred in f ai l i ng to vi ew the evi dence i n the l i ght most favorabl e to her and i n appl yi ng
erroneous l egal standards. As to pl ai nti ff' s f e d e r a l cl ai ms, we concl ude that the d i stri c t court erred i n refusi ng to consi der evi d ence of events that, though they preceded the acti onabl e ti me peri od i f vi ewed as di screte events, remai n acti o nabl e
a s p a r t o f a hosti l e work envi ronment and rel evant a s background for a c l ai m o f retal i a ti on; that i n assessi ng the cl ai ms of retal i a t i o n, th e court erroneousl y appl i ed the standard appl i cabl e to cl ai ms of di scri minati on rather than cl ai ms of retal i a ti on;
and that the evi d ence, vi ewed i n the l i ght most favorabl e to pl ai nti ff, suff i c ed t o present tri abl e i ssues o f materi al f a ct as to the c l ai m s of hosti l e work envi ronment and retal i a ti on. Accordi ngly, we vacate the judgment and remand for t ri al o f th o s e c l a i ms,
and for further consi derati on of pl a i nti ff' s state-l aw cl ai ms.

Vacated and remanded.

2BRIAN HELLER, New York, New York (Davi da S.Perry, Schwartz P e r r y & Hel l er, on the bri ef), f or PlaintiffAppellant . BLAIR J . R OBINSON, New York, New York (Morgan, Lewi s & Bocki us, New York, New Y o r k, o n the bri ef), for Defendants-Appellees
. GAIL S. C OLEMAN, Washi ngton, D.C . (James L. Lee, Deputy General C ounsel, J enni fer S. G ol dstei n, Ass oci ate General C ounsel, E l i zabeth E. Theran, Assi stant General C ounsel, Susan L . St a r , Attorney, Uni ted States E qu a l Empl oyment O p p ortuni ty C ommi ssi on, Washi ngton, D.C ., on the bri ef), for A m i c u s C u r i a e Equal Employment O p p o r t u n i ty Commission in support of Plaintiff-Appellant
. Outte n & Gol den, New York, New York (Darnl ey D. Stewart, of counsel ), filed a brie f f o r Amicus Curiae National Employment Lawyers Association/New York in support of Plaintiff-Appellant
.

K EARSE, Circuit Judge :

Pl ai nti ff Bl a i r Davi s-Garett ("Garett") appeal s from a j udgment of the Uni t ed States Di stri ct Court for the Southern Di stri ct of New Y ork, Thomas P. Gri esa, Judge, di smi ssi ng her compl ai nt al l egi ng pri nci pal l y th at her former empl oyer, d efendants Anthropol ogi e, Inc. ( " A n thropol ogi e"), and i ts corporate parent Urban
3Outfi tt ers, Inc., di scri minated agai nst her on the basi s of a ge by maintai ning a hosti l e

w ork envi ronment and retal i ated agai nst her for l odgi ng di scri minati on compl ai nts, in vi ol ati o n of the Age Di scri minati on i n Empl oyment Act of 1967, 29 U.S.C . § § 6 21–634 ("ADEA"), the New Y ork State Human Ri ghts Law, N.Y. Exec. Law § 290
e t seq. ("NYSHRL"), and the C onnecti cut F ai r Empl oyment Practi ces Act, C onn. Gen. St a t. § 46a-51 et seq. ( "C FEPA"). The di stri c t court granted summary j udgment in f avor of defendants, rul in g p r in c i p a l ly that G arett fai l ed to adduce suffi ci ent evi dence
o f age-rel ated abuse to create tri abl e i ssues of fact wi th respect to her ADEA cl ai ms
o f hosti l e work envi ronment, and fai l ed t o adduce suffi ci ent evi d ence of an adverse empl oyment a cti on t o support to her ADEA cl ai ms o f retal i ati on. On appeal, Garett
c ontends that i n di smi ssi ng her cl ai m s the di stri ct court erred by fai l i ng to vi ew the evi d ence i n the l i ght most favorabl e to her, by re fu s i ng to take i nto a ccount certai n evi d ence that predated the acti onabl e peri o d, and by appl y i ng an erroneous l egal standard to the cl ai m s of retal i ati on. For the reasons that fol l ow, we agree; we vacate the judgment and remand for further proceedi ngs, i ncluding tri al o f the federal
c l ai ms, and addi ti onalconsi derati on of the state-l aw cl ai ms.

4I. BAC KGROUND

From September 2012 unti l earl y October 2013 Garett was empl oyed by Anthropol ogi e, a n a ti onwi de retai l er that sel l s women' s apparel and accessori es, home furni shi ngs, decor, g i fts, and "found objects." Duri ng that peri od, she worked
a t three Anthropol ogi e stores: fi rst at the Roosevel t Fi el d Mal l on Long Isl and in New Y ork ("Roosevel t Fi el d"), next i n Whi te Pl a in s , New York, at the Westchester Mal l ( "Whi te Pl ai ns"), and fi nal ly i n Greenwi ch, C onnecti cut. The r e c o r d d evel oped d u r i ng di scovery, whi ch i ncl udes Garett' s deposi ti o n testi mony, her affi davi t, and d eposi ti on testi mony and/ or decl arati o ns from several managers at Anthropol ogi e, reveal s many factual di sputes, chi efl y as to who sai d what t o whom, and when. The fol l owi ng d escri pti on of c onversati o ns and events, except where i ndi cated, takes the record i n the l i ght most favorabl e to Garett, based pri nci pal l y on admi ssibl e factual
a sserti ons i n her deposi ti on and her affi davi t.

5A . The Roosevelt Field Store When Garett began worki ng at Anthropol ogi e' s Roosevel t Fi el d store in September 2012—as a part - t i m e customer associ ate—she was 54 years of a ge, si gni fi cantl y ol der than most of the other sal es associ a tes, who were i n thei r 20' s. That st o r e ' s o v eral l m anager, Jenni fer Orr, was a pproxi mately 28 years of age, and most
o f th e other managers were i n thei r 20' s or earl y 30' s. C ustomer associ ates were responsibl e for assi sting customers wi th purchasi ng, both on the sal es fl oor and i n the fi tting room; but An th r o p o l ogi e' s pol i ci es and procedures cal l ed for such sal es persons to be rotated hourl y through the vari ous secti ons of the store i n order to gai n
a range of experi ence. Y ounger sal es associ ates were gi ven that trai ni ng. Gare t t, however, despi te her repeated requests to Orr for assi gnments that w oul d provi d e her wi th experi ence i n other aspects of store operati ons and al l ow her to advance in the company, was assi gned to spend most of her w orki ng hours i n the fi tting room. ( See Deposi ti on of B l ai r Davi s-Garett ( "Garett Dep.") at 3 5–40, 5 4–55; A ffi d avi t of Bl ai r Davi s-Garett dated March 22, 2017 ("Garett Aff."), ¶¶ 6–7.)

In earl y 2013, for busi ness reasons, Anthr o p o l o gi e ' s R o o s e v el t Fi el d store
w as perman e n t l y cl osed. Some empl oyees, i ncluding G arett, w ere transferred t o
6o ther Anthropol o gi e l ocati ons. Younger transferred empl o yees who l i ved on Long

I s l a n d were reassi gned to Anthropol ogi e stores o n Long Isl and. Garett, who al so l i v ed on Long Isl and, was reassi gned to the Anthro p o lo g i e store i n Whi te Pl a i ns,
m ore than 30 mi l es away . W h e n s h e sought reassi gnment to one o f the cl oser l ocati ons, she was tol d that deci si ons to put o thers at those l ocati ons had al ready been
m ade, and that Whi te Pl ai ns was her "onl y opti on." (Garett Aff. ¶ 9.) Garett says she
w as l ater tol d that she was sent t o the Whi t e Pl a i ns store " because of the

' d emographi cs i n Whi te Pl ai ns,' " i.e. , "that the peopl e that shopped i n the store were
o l der and that I was ol d and that i s why I was t ransferred there." ( E.g. , id . ¶ 23 ( attributi ng the quoted statements to Whi te Pl ai ns store manager Kel l y Bentl ey).)

B . The White Plains Store

Garett became a sal es a ssoci ate at Anthropol o gi e' s Whi te Pl ai ns store in l a te J anu a ry 2 0 1 3

— s ti l l p a r t- ti m e — r e p o r ti ng to store manager Kel l y B entl ey, wh o w a s
a pproxi mately 35 y ears of age. Garett was a gai n a ssi gned to the fi tting room for the
m ajori ty of her shi fts and recei ved no trai ni ng. In addi ti on, Garett was assi gned the l east desi rabl e duti es. When customers l eft behi nd unsani t ary trash o r waste, Garett
7w as i nstructed to cl ean i t up—an assi gnment she attributed t o h e r age. ( See, e.g. ,

G arett Aff. ¶¶ 15

– 1 7 . ) G arett testi fi ed that she was "ostraci zed" by her coworkers ( Garett Dep. 84), and that they repeatedl y cal l ed her "' Mom' " or "' Mommy,' " d espi te her tel l i ng them that thi s was not appropri ate i n a workpl a ce (Garett Aff. ¶ 14; see G arett Dep. 86–91). They al so asked her to take care of thei r cuts, brui ses, and other i l l s; and they consul ted her about thei r personal probl ems. ( SeeGarett Aff. ¶ 14.)

In March 2013, Garett became a ful l -ti me customer associ ate at the Whi te P l a ins store. Her responsibi l i ti es and d uti es remai ned unchanged; she was assi gned pri nci pal l y to the fi tting room and was gi ven no trai ning. ( See id . ¶ 1 8.) In about June 2 013, Garett l earned of an openi ng i n the posi ti on of apparel supervi sor, and she tol d B entl ey she was i ntere s t e d i n appl y i ng. ( See id . ¶ 21.) Garett testi fi ed that in response, Kel l y took me out o f the store. We went to . . . the remote

storeroom. . . . And she told me that i t was compl etel y i m possibl e, that I di dn' t have the energy or the stamina, that I w as too old for the job . She s aid, look around you. Everybody in the company is young . S he sai d, l ook a t the di stri ct manager; she' s real l y you n g . S h e l a ughed.
. . . She sai d
. . . you woul d never be abl e to do i t, you don' t have the energy. . . . Y ou're too old . S he s a id, the o nly reason you were sent here is because of the demographics h e r e, th at i t' s— the 8people that shop here are older and you're old, and that's w hy they sent you here . And you woul d never be abl e to handl e bei ng a manager. She sai d, how are you goi ng to b e ab l e to handl e al l the cl osi ng and the openi ngs? You' l l never be abl e to do i t. ( Garett Dep. 1 12–13 (emphases added); s ee, e.g. , Garett Aff. ¶ 22 ("Bentl ey . . . . sai d that I w as ' too ol d for the job' " and "' You wi l lnever be abl e to do i t. You don' t have the energy.' " (emphases omi tted)).)

Garett, hurt by Bentl ey' s c omments, cal l ed Anthropol ogi e' s anonymous empl oyee h o tl i ne and l eft a voi cemai l m essage stating that her manager had made d i sparagi ng comments about her age. ( See Garett Aff. ¶¶ 24–25.) Garett testi fi ed that she then recei v ed a cal l from di stri c t manager Amy Shearer, who was responsibl e for handl i ng hotl i ne compl ai nts; that Shearer sai d Bentl ey' s statements were "' terribl e' ";
and that Shearer sai d she woul d speak to Bentl ey. ( I d . ¶ 26; see Garett Dep. 123–24.) Shortl y thereafter, Garett was promoted to the apparel supervi sor posi ti on.

In he r n e w p o s i ti on as apparel supervi sor, Garett reported to B e ntl e y an d t o Kara Fi tzpatri ck, the store' s apparel manager. Bentl ey was hosti l e to G arett, inti mi dating and unfai r i n her cri ti c i sms. ( See, e.g. , G arett A ff. ¶¶ 33, 42.) Garett made
no progress. Despi te her promoti on, she remai ned consi gned to the fi tting room for 9nearl y al l of her shi fts ( see Garett Dep. 80); and she was assi gned "the l east desi rabl e

t asks and hours" (Garett Aff. ¶ 33). In her fi rst 2 0 shi fts as apparel supervi sor, Garett
w as requ i red to open the store on 10 c onsecuti ve days and then to cl ose the store o n 1 0 c onsecuti ve ni ghts, "a very di ffi cul t and exhausti ng task." ( Id .) Garett l ater l earned that no other supervi sor had e v e r been asked to work such a demandi ng schedul e. ( See id .) Garett was increasi ngl y i sol ated i n her new posi ti on. Management g roup meeti ngs were schedul ed i n her absence. Whi l e younger empl oyees recei ved tr ai ni ng opportuni ti es on payrol l and oth e r m an a g e r i a l f un c ti o n s, G a r e tt w a s r e q u i r e d t o l e a r n th e job on her own. And Fi tzpatri ck cri ti ci zed her "' speed' " and " ' pace' "

" al m ost d ai l y." ( I

d . ¶¶ 35–36.) About 10 days after her promoti on, Garett was cal l ed into Bentl ey' s offi ce and berated by both Bentl ey and Fi tzpatri ck:

[They] tol d me that I was doi ng a t erribl e job, that I was the worst apparel supervi sor that they had ever seen in thei r l i ves, that I was not cut out to do the j ob
. . . that my energy l evel, my pace was too sl ow . . . . ( Garett Dep. 144–45.)

On Jul y 8, Garett c a l l ed the empl oyee hotl i ne t o compl ai n about her t reatment by her supervi sors. Bentl ey subsequentl y recei ved a di sci pl inary warni ng 10that ci t ed three i nstances o f her u nsati sfactory performa n c e . T wo rel ated to store

securi ty i nfracti ons observed on June 3 and J ul y 16. The other, wi thout menti oni ng Ga r e tt' s name, described her Jul y 8 compl ai nts about Bentl ey' s l ack of support a n d
c onstructi ve feedback i n the trai ning of "a newl y promoted supervi sor"; and i t added that "the supervi sor menti o ned that Kel l y has made comments about her age and has questi oned her ab il i ty to have the energy to manage the sel l i ng fl oor." (Garett Aff. E xhibi t F.)

1 . The Edgewater Application In earl y August, Garett l earned that there was an openi ng i n the apparel supervi sor posi ti o n at the Anthropol o gi e store i n Edgewater, New Jersey. As she and her husband were pl anni ng to move from Long Isl and to M a nhattan, and the
c ommute to E dgewater w oul d be more conveni ent, Garett appl i ed for that posi ti o n
and asked her d i stri ct manager Shearer to a pprove her transfer t o E d g e water. A l though requ ests by younger coworkers for transfers w ere routi nel y processed and g ranted promptl y, Garett heard nothi ng from Shearer for several weeks. Toward the end of August, Garett cal l ed the Anthropol ogi e empl oyee hotl ine to compl ai n about
11how her request was bei ng handl ed and about Shearer i n parti cul a r. ( See Garett Aff.

¶ 45.) In earl y September, Garett was inter v ie w e d for the Edgewater store
a ppare l supervi sor posi ti o n by Jen Ernst, the di stri ct manager for New Jersey. A ccordi ng to Garett, the intervi ew "went extremel y wel l," and "Ernst c l e a r l y and d i stinctl y offered me the job" and sai d she woul d contact Bentl ey to a rrange for the t ransfer. ( Id . ¶¶ 46–47.)

However, Garett w as not t ransferred to E dgewater. Soon after Garett' s E dgewater i ntervi ew, Shearer recei ved a cal l from Anthropol ogi e' s regi onal manager J en B erry, who i nformed her of G arett' s l ate-August hotl i ne cal l and c ompl ai nt about Shearer' s handl i ng o f G a rett' s transfer request. ( S ee id . ¶¶ 52–53.) It was i n thi s t el ephone conversati on that the deci si on not t o t ransfer Garett to the Edgewater store
w as made. ( See i d . ¶ 5 4 ; Deposi ti on of Amy Shea r e r ("Shearer Dep.") at 79–80.) A l though Gar e t t t esti fi ed i n her deposi ti on that she di d not know who made the d eci si on to de n y a pproval o f her transfer to Edgewater ( see Garett Dep. 163), she inferred i n her affi davi t that i t was a "retal i at[ory]" deci s i o n ma d e by "Shearer instantl y" upon l earni ng of Garett' s compl ai nt against her (Garett Aff. ¶ 54).
12Instead of bei ng transferred to E dgewater, Garett was transferred to the

Anthropol ogi e store i n Greenwi ch, C onnecti cut, a l o cati on for whi ch she had never
a ppl i ed. Accordi ng to Garett,

[s]oon after my cal l to [the Anthropol ogi e] hotl i ne, Bentl ey cal l ed m e i nto her offi ce and tol d me that my " transfer h a d c o m e through." She then went o n to a d v i se me that I woul d not be goi ng to the Edgewater store where I had been offe r ed a job. Instead, I woul d be goi ng to the Greenwi ch, C onnecti cut store, whi ch I had never before d i scussed or e x p r e s s e d any i nterest in bei ng assi gned. Bentl ey added that I w oul d "l o ve" Greenwi ch and that "the demographi cs are perfect" for me.

. . . I c al l ed Shearer and aske d w h y I was bei ng sent t o Greenwi ch i nstead of Edgewater, where the Di stri ct M anager had al ready o ffered me a job. Shearer became angry and sai d, "That' s your onl y ch oi ce or you are fi red" and, " It' s Greenwi ch or nothi ng." ( Id . ¶¶ 55–56; seeGarett Dep. 164–65.)

2 . Defendants' Version of Garett's Treatment in White Plains Defendants di spute, inter a l ia, G arett' s account of how she was t r e ated
a t the Whi te P l a ins store and her vi ew of how her promoti on to apparel supervi sor in Whi te Pl ai ns came about. They al so offer busi ness expl anati ons for the deni al o f her requested transfer to Edgewater and for her reassi gnment to Greenwi ch. 13As to Whi te Pl ai ns, Bentl e y deni ed making the June 2013 age-rel ated

statements—or any statements di rected at Garett' s a ge—that Garett described i n her d eposi ti on and affi davi t. ( See Decl arati on o f Kel l y Bentl ey dated F ebruary 20, 2017, ¶¶ 13–14.) Bentl ey sai d she had provi ded Garett wi th constructi ve feedb a c k as t o how qui ckl y she shoul d be managing the sel l i ng fl oor ( see i d . ¶ 16), but sai d she had not gi ven Garett onerous, di stasteful, or l ess d esi rabl e assi gnments as Garett cl ai med, had not made the al l eged statement about Garett and Greenwi ch demographi cs, and had not made any comments at any ti me about or rel ating to G a r ett' s age ( see id . ¶¶ 11–12, 14, 19).

Despi te Garett' s asserti o n that she pr o m p tly c o m p l a in e d o n t h e c o m p any hotl i ne of expl i ci tl y age-di scri minatory statements by B entl ey i n June 2013, Anthropol ogi e says i t has no knowl edge of any hotl i ne compl a i nt by Garett i n June. ( S ee Defendants' Repl y to Pl ai nti ff' s Response to Defendants' Statement o f Undi sputed Materi al Facts Pursuant to Local Rul e 5 6.1 ¶ 41.) Its earl i est record of a
c ompl ai nt by G a rett i s a Jul y 8 message from an anonymous c a l l e r ( l eavi ng a t el ephone number) who reported that her manager was abusi ng her by i nti mi dating

14her, pi cki ng on her, and demandi ng performance that exceeded what was demanded

o f everyone el se.

In contrast to Garett' s asserti on that she had recei ved a return cal l from Shearer i n June i n response to a hotl i ne compl ai nt about Bentl ey' s age-demeani ng
c omments, Shearer testi fi ed that the fi rst c ontact she had wi th Garett occurred on Jul y 9 , when she cal l ed the number prov i d e d i n th e Jul y 8 anonymous c o mpl ai nt and reached Garett. ( See Shearer Dep. 26–31.) In that conversati on, Garett i denti fi ed her posi ti on as a "supervi sor" at the Whi te Pl ai ns store ( i d . at 31)—a posi ti on she had been g i ven i n June ( see, e.g. , Garett Aff. ¶ 34). Shearer testi fi ed that she had no knowl edge
o f how Garett came to be promoted to apparel supervi sor. ( SeeShearer Dep. 76.)

Shearer testi fi e d th at i n the Jul y 9 conversati on, Garett c ompl ai ned about B entl ey' s c ri ti c i sms that Garett' s work was t oo sl ow, and that Garett i nterpreted those
c ompl ai nts as age di scri minati on. ( See, e.g. , id . a t 58–59, 64–65.) A few days thereafter, Shearer rel ayed Garett' s c o m p l a i nts to Bentl ey; Bentl ey acknowl edged g i vi ng Garett feedback about "how qui ckl y she was wal ki ng the fl o o r " a n d "how qui ckl y she was openi ng and cl osi ng the offi ce" b u t d e ni ed making any age-based
c omments. ( Id . at 46–47.) Shearer then agai n spoke wi th G arett and asked whether
15she wanted to transfe r to another store; Garett responded that she preferred to stay

a t the Whi te P l a i n s s t o r e and "try to work i t out" so that she coul d move up i n the
c ompany. ( Id . at 73–75.) A coupl e o f weeks l ater, Ga r e t t s p o k e wi th Shearer agai n
and thi s ti m e sai d she was not comfortabl e stayi ng at Whi te Pl ai ns; G arett sai d she
w as i nterested i n transferri ng to the store i n Edgewater. ( See i d . at 75–77.)

Edgewater was not part of Shearer' s di stri ct, a n d she t ol d Garett she
w oul d cal l New Jersey d i stri ct m anager Jen Ernst ab o u t Garett' s i nterest. (Shearer
m ade the cal lbut had no rol e i n the Edgewater i ntervi ew process, see id . at 77–78.)

Some weeks l ater, regi onal manager Berry cal l ed Shearer t o di scuss G ar e t t ' s request for that transfer and i nformed her that there were personnel probl ems at Edgewater—the detai l s of whi ch were not di scl o se d t o S hearer—that
m ade a transfer of Garett to that store unwi se. ( See Shea r er Dep. 79.) Those probl ems, as described by Ernst duri ng thi s l i ti gati on, i ncl uded the fact that when E rnst intervi ewed Gare t t for the Edgewater store there was no functi oni ng store
m anager. One had been a ppoi nted but was i n the mi dst of a fi v e-day t rai ni ng peri od;
and then, two days after she fi ni shed her trai ni ng a n d s t a r t e d her posi ti on, she
a dmi tt ed to havi ng stol en inventory from the Anthropol ogi e store in Whi te Pl ai ns, at
16whi ch she was previ ousl y empl oyed. Her empl oyment at Edgewater w as promptl y

t ermi nated. ( SeeDeposi ti on of Jenni fer Ernst at 18.) Ernst testi fi ed that she di d not
o ffer Garett the job of apparel supervi sor, and that the fi nal deci si on had to awai t an intervi ew by the new store manager. ( See id . at 44–45.)

Shearer t esti fi ed that she and Berry, "knowi ng that [Garett] had had an
u ncomfortabl e si tuati o n" at the Whi te Pl ai ns store, di scussed fi ndi ng an o t h er l ocati o n for her. (Shearer Dep. 79.) Shortl y thereafter, Sh e a r e r s p o k e wi th Garett and informed her that she woul d not be transferred t o Edgewater because that transfer
w oul d not be i n G arett' s best i nterests. H owever, because there was an Anthropol ogi e store i n Greenwi ch, whi ch w as not far from Whi te P l ai ns, Shearer suggested that Gare t t t ransfer to the Greenwi ch store, whi ch w as m anaged by the former Roosevel t Fi el d manager Orr, wi th whom Garett had had a good rel ati onshi p. ( See id . at 85; s ee generally January 15, 2013 emai l from Garett to Orr ("Jen, Once agai n I real l y want to say thank you for al l you have done for me, and al l that I have l earned from you. I trulyhave the deepest respect for you, not onl y as a manager, but al so,
a s an i ndi vi dual
. Most i mportantl y, you taugh t m e h o w to handl e every si tuati o n

17w i th g race. A qual i ty you embody. We are al lmoving on, but I hope we wi l l have

the opportuni ty to work together agai n. It was amazing! Bl ai r").)

Shearer testi fi ed that Garett was ini ti al ly "confused" about the prospect
o f goi ng to G reenwi ch because she preferred the Edgewater l ocati on and fel t that her intervi ew wi th Ernst h a d g o n e w e l l
. (Shearer Dep. 84–86.) Shearer deni ed ever t el l i ng Garett that a transfer t o Greenwi ch was her onl y opti on or she woul d be fi red. ( See id . at 89.)

C. The Greenwich Store

Garett began w o rki ng a t the Greenwi ch store, m anaged by Orr, in S e p te mber 2013. A l though G arett retai ned the ti tl e of apparel supervi sor, th e G reenwi ch store al ready had an apparel supervi sor, and Garett was gi ven none of the posi ti on' s supervi sory responsibi l i ti es "other than c l osi n g a n d o peni ng the store[],
whi ch no one wants to do." (Garett Aff. ¶ 65.) Garett was "basi cal l y i gnored" by Orr,
w as deni ed trai ni ng opportuni ti es, and was "again rel egated to the fi tting room." ( Id . ¶ 63.)

18Garett' s tenure at Greenwi ch l asted onl y a few w ee k s . On Thursday

October 3, Garett was responsibl e for c l osi ng the st ore. A t about 7:30 that eveni ng, she and two o ther empl oyees were the onl y ones i n the store when a "kind of scruffy
m an" came i n and a sked t o see l amps; he was v ery agi tated and was acting strangel y. ( Garett Dep. 1 72–74.) He l eft the store and reentered several ti mes, and he angri l y

" shushed" a sal es associ ate whi l e on hi s cel l phone. ( Id . at 178–82.) Garett knew that the store "had had a l ot of shopl i fters the previ o us two weeks" ( id . at 178–79), and she
observed the m an wal k around the store "[a]s i f he was—he w a s ki nd of casi ng the pl a c e"; she "was c oncerned that he m ay eventual l y ei ther shop l i ft or eventual l y wai t for th e d o o r s t o cl ose and remain i n the store and—and steal " ( id . at 180). Garett t esti fi ed that " [t]he gi rl s were extremel y fri ghtened" and she deci ded to cal l the nonemergency number for the Greenwi ch p o l i c e . ( Id . at 182.) Two pol i ce offi cers
a rri v ed shortl y thereafter and escorted the man out of the store.

On Fri day morni ng, Garett was approache d by the store' s "vi sual
m anager" Leanne Meyer, who "was extremel y hosti l e and want e d to know exactl y
what happened the ni gh t b e f o r e . " ( I d . at 1 89; see G arett Aff. ¶ 67.) M eyer sai d she

19knew the man, who had been tryi ng to buy a l amp for hi s w i f e , a n d she was qui te

u pset at the way he had been treated. ( SeeGarett Dep. 189–90.)

On M onday October 7, Orr, who had been a way for the weekend, summoned Garett to her offi ce to di scuss the October 3 i nci dent. Wi th Meyer present, Orr repri m anded Garett for fai l i ng t o a d here to Anthropol ogi e' s corporate pol i cy,
whi ch was t o refrai n from automati cal l y cal l i ng the pol i ce on suspected shopl i fters. G arett testi fi ed that Orr fi red her by sayi ng " thi s i s your fi nalwarni ng. . . . [Y]ou' ve d one a terribl e thi ng. Y ou never shoul d have d one what you di d. Thi s i s your fi nal
w arni ng. It' s over. . . . [Y]ou' re done. It' s over." ( Id . at 204–05.)

Orr tol d me that I was bei ng gi ven a thi rd and fi nal warni ng and then sai d, " That' s i t . You' re done. It' s over w i th. That' s i t. You' re done. It' s fini shed." . .
. . I tol d Orr that I had never been gi ven a fi rst or second warni ng and asked what does thi s thi rd and fi nal warni ng mean. Orr responded, "It means you' re done. That i s i t." . . . . It was cl ear I was bei ng terminated. . . . [S]o I turned i n my keys t o the empl oyee who checked me out and l eft the workpl ace. ( Garett Aff. ¶ 69.)

Defendants contend that Garett had not been fi red. Orr (i n addi ti on t o d enyi ng that she had ever t reated Garett any di fferentl y than younger empl oyees ( see Decl arati on o f Jenni fer Orr dated February 20, 2017 ( "Orr Decl ."), ¶¶ 11–12, 19)) stated
20that she "di d not termi nate []Garett' s empl oyment" ( i d . ¶ 2 7; see Deposi ti o n of Jenni fer

Orr ("Orr Dep.") at 160). Orr deni ed havi ng sai d, inter alia, "' thi s i s your thi rd and fi nal w arni ng,' " or "' [i ]t' s o ver,' " or "' y o u ' r e done,' " or anythi ng el se i mpl yi ng that G arett' s empl o yment was bei ng termi nated. (Orr Decl . ¶¶ 28–30.) Nor di d Orr ask G arett for her store keys or remove her from the work schedul e. ( S ee id . ¶ 31.)

Meyer stated that she had attended that October 7 meeti ng at the request
o f Orr, i n o rder to wi tness Orr gi v ing Garett a wri tten w arni ng f or vi ol ating Anthropol ogi e pol i cy on October 3 by hasti l y cal l i ng the pol i ce and thereby publ i cl y humi l i ating a customer. ( S ee Decl arati on of Leanne Meyer dated Apri l 3 , 2015 ( "Meyer Decl ."), ¶¶ 6–8.) Orr hersel f, however, testi fi ed th a t w h en she began the
m eeti ng wi th Garett she was tryi ng t o get Garett' s versi on of the event and had not d eci ded to gi ve Garett a w ri tten warni ng; she made the deci si on to do so duri ng the
m eeti ng. ( See Orr Dep. 91, 121–24.) Orr' s recol l ecti on was that at that meeti ng she i ssu e d a w r i tte n w a rnin g t o Garett for vi ol ating Anthropol ogi e' s pol i cy, and that "[w]e
chatted about the next step, i f anythi ng l i ke that ever happens agai n, the next step o f
c ontacting me and bei ng abl e to tal k through i t together and work t ogether through i t in the future
. " ( Id . a t 1 2 1.) Meyer stated that Garett " refused to si gn the wri tten
21w arni ng form but di d a gree to work w i th [Orr] t o probl em sol v e future si tuati ons

t ogether." (Meyer Decl . ¶ 9.)

Garett maintai ns that she " was not gi ven the document that Anthropol ogi e rel i es upon." (Garett Aff. ¶ 74; see Garett Dep. 196 ("Nobody showed
m e anything that day.").) After the meeti ng, Garett l eft the store and di d not return. ( See Garett Af f
. ¶¶ 69, 74.) Attempts by Orr and Meyer to reach her went
u nanswered. ( See, e.g. , Orr Decl . ¶¶ 32–34; Meyer Decl . ¶ 10.)

D. The District Court's Grant of Summary Judgment

After pursuing adm i n i s t rati ve remedi es wi th state authori ti es in Connecti cut, Garett commenced the present acti on i n the d i stri ct court i n December 2 015 . Her compl ai nt, to the extent perti nent to the cl ai ms pursued on thi s appeal, a l l eged or summari zed the above events and asserted age-based hosti l e work envi ronment cl a i ms and retal i ati on cl ai ms under the A DEA, NYSHRL, and C FEPA. F ol l owi ng the compl eti on of di scovery, defendants m oved for summary judgment,
c ontendi ng pri nci pal l y that the i nci dents Garett al l eged di d not c reate condi ti ons so
severe or pervasi ve a s to permi t an i nference of a hosti l e work envi ronment, and that
22the cl ai ms of retal i ati on fai l ed because she coul d not establ i sh that she suffered any

a dverse empl oyment acti on.

The di stri ct court, i n an opi ni on d ated September 27, 2017, Davis-Garett
v . Urban Outfitters, Inc. , No. 15-C V -09598, 2017 WL 4326112 (S.D.N.Y. 2017) ("D. C t. Op."), granted the m oti on, concl u di ng that Garett f ai l ed to a dduce suffi ci ent evi dence t o show a pri m a faci e case of di scri minati on or retal i a ti on.

Prel i minari ly, the court stated that ADEA cl ai ms a s to earl i er aspects o f G arett' s empl o yment by A n thropol ogi e w ere unti mel y. It rul ed that her evi dence

" pertai ni n g t o i nci dents occurri ng before February 16, 2013—300 days pri or t o" her
c ommencement of admini strati ve proceedi ngs, " [we]re ti me barred" and woul d " not be consi dered." Id . at *3. "Thi s i ncl udes the ti m e that Garett worked a t the Roosevel t F i el d Mal lStore and the fi rst month of her ti me at the Whi te Pl a i ns Store." Id .

W i th r e s p e c t t o the ADEA hosti l e work envi ronment cl ai m, the cour t a l s o rul ed (as described i n Part I I.C . bel ow) that the evi dence adduced by Garett—as to the
c o m ments made to her by B entl ey and Fi tzpatri ck that she was too sl ow, as to the
a ssi gnments to the fi tting room, and a s to the pro l o nged assi gnments to open and
c l ose the store—was i nsuffi c i ent to establ i sh a hosti l e work envi ronment cl ai m.
23In di smi ssi ng Garett' s ADEA retal i ati on c l ai m, the court appl i ed the

f ami l i ar burden-shi fting framework set forth i n McDonnell D ouglas Corp. v. Green , 411 U .S. 792 (1973), focusi ng i n parti cul ar on the requi rement that the pl ai nti ff show that she suffered an adverse empl oyment acti on. Quoting l anguage from Galabya v. New Y ork City Board of E d ucation , 202 F.3d 636, 6 40 (2d C i r. 2000) (" Gal a b ya "), the di stri ct
c ourt stated that, i n order "[t]o successful l y show an adverse empl oyment acti o n, the pl a inti ff must show that he or she experi enced a ' m ateri a l l y a d v e rse change ' in the t erms and conditions o

f employment," such as "demoti ons, decreases i n sal ary, and d ecreases in responsibi l i ty." D. C t. Op., 2017 W L 4 326112, at *4 (emphasi s ours). As d escri bed more ful l y i n Part II.C . bel ow, the court concl uded that the i nci dents recounted by Garett "fai l [ ed] to provi de suffi ci en t e v i d e n ce" of an "adverse empl oyment acti on," i d . at *5.

Fi ndi ng the same anal yses appl i c abl e to Gare t t 's c l ai ms under the NYSHRL and C FEPA, the court di smi ssed her state-l aw cl ai ms as wel l
. See id .

24II. DISC USSION

On a p p eal, Garett contends pri nci pal l y that i n d i smi ssi ng her hosti l e
w ork envi ronment cl ai ms, the court erred in refusi ng to consi der evi dence of events that predated the l i m i t ati ons peri od and i n fai l i ng to v i ew the ev i d e n c e i n the l i ght
m ost f avorabl e to her as the party a gai nst whom summary judgment was sought; and that i n d i smi ssi ng her retal i ati on cl ai ms, the court erred i n adopting an

" oversi mpl i fi [ed]" vi ew of the record as devoi d of p r o o f th at G arett suffered an
a dverse empl oyment a c ti on, by f a i l i ng t o l ook at "the speci fi c c i rcumstances" o f G arett' s treatment (Garett b r i e f on appeal at 40). The Uni ted States Equal E m p l o y m ent Opportuni ty C ommi ssi on ("EEOC "), as amicus curiae, u r g e s u s t o r e v e r s e the di smi ssalof Garett' s ADEA hosti l e work envi ronment cl ai m on the ground that the d i stri ct court erred i n rul i ng that i t coul d not consi der evi dence o f event s that
o ccurred pri or to February 16, 2013, and to reverse th e di smi ssal of Garett' s ADEA retal i a ti on cl ai m on the ground that the di stri ct court erroneousl y appl i ed a standard
a ppl i c abl e to substanti ve di scri minati on c l ai m s rather than the standard announced

25by the Supreme Court i n B urlington Northern & Santa Fe Ry. Co. v. White, 548 U.S. 53,

6 8 (2006) (" White "), for cl ai ms of retal i a ti on.

Summary judgment i s a ppropri a te where "the movant shows that there i s no genui ne di spute a s t o any materi al f act and the movant i s enti tl ed to judgment
a s a matter of l a w." Fed. R. C i v. P. 56(a ) . T h e procedural constrai nts are di scussed in Part II.C . bel ow; we begi n here wi th the substanti ve l aw.

A . Principles Governing ADEA Hostile Work Environment Claims

Wi th respect to an i ndi vi dual over the age of 40, the ADEA makes i t
u nl awful for an empl oyer to "di scri minate agai nst [the] i ndi vi dual wi th respect to hi s [ or her] compensati on, terms, condi ti ons, or pri vi l eges o f empl oyment, because o f such i ndi vi dual ' s age." 2 9 U.S.C . §§ 623(a)(1), 631(a). Thi s l anguage i s vi rtual l y i denti cal to that of Ti tl e VII, whi ch prohibi ts empl oyment di scri minati on because o f race, col or, rel i g i o n, sex, or nati o nal ori g i n, see 42 U.S.C . § 2 000e-2(a)(1). Such prohibi ti ons e n compass "requi ri ng peopl e to work i n a di scri minatori l y hosti l e or
abusi ve envi ronment." Harris v. Forklift Systems, Inc. , 510 U.S. 17, 21 (1993) (" Harris "). They are vi ol a ted
26[w]hen the workpl a ce i s permeated w i th di scr i minatory i nti mi dati on, ri di cul e, and i nsul t . . . that i s suffi ci ently severe or pervasi ve to al ter the condi ti o ns of the vi cti m' s empl oyment and create an abusi ve worki ng envi ronment. I d . (Ti tl e V II) ( i nternal quotati on m a rks omi tted); see, e.g. , Kassner v . 2nd Avenue D elicatessen In c. , 496 F.3d 229, 240 (2d C i r. 2007) (ADEA). "Isol ated, minor a cts or
o c c asi onal epi sodes d o not warrant rel i ef," Brennan v . Metropolitan Opera Ass'n , 192 F .3d 310, 318 (2d C i r. 1999) (" Brennan ") (Ti tl e VII and ADEA), but that "does not mean that empl o yers are free from l i abi l i ty i n al l but the most egregi ous cases," Terry v. A s hcroft, 336 F .3d 128, 148 (2d C i r. 2003) (Ti tl e VII and ADEA) (i nternal quotati o n
m arks omi tted).

Acti onabl e hosti l e work envi ronment cl a ims have both objecti ve and subjecti ve components.

C onduct that i s n o t severe or pervasi ve enough to c reate an obj ecti v ely h o s ti l e o r ab u s i v e w o r k e nv i r o nm e nt
— an e nv i r o nm e nt that a reasonabl e person w oul d fi n d h o s ti l e or abusi ve—i s beyond Ti tl e VII' s purvi ew. Li kewi se, i f the vi cti m does not subjecti vel y percei ve the envi ronment to be abusi ve, the conduct has not actual l y al tered the condi ti o ns o f the vi c ti m' s empl o y m ent, and there i s no Ti tl e VII vi o l ati o n. H arris , 510 U.S. at 21–22. Si m i l arl y, under the A DEA, "[a] work envi ronment w i l l be
c onsi d ered host i l e i f a reasonabl e person woul d have found i t t o be so and i f the 27pl a inti ff subjecti vel y so percei ved i t" because of conduct based on the pl a i nti ff' s over4 0 age. B rennan , 192 F.3d at 318; see id . ("an envi ronment whi ch i s equal l y harsh
. . . for both young and ol d does not consti tute a hosti l e worki ng envi ronment under the [ ADEA]"). As for the permi ssibl e temporal scope of a federal cl ai m of empl oyment d i scri minati on, general l y i f the pl ai nti ff has i ni ti al l y fi l ed an admini strati ve cl ai m in
a state whose l a ws prohibi t such di scri minati on, th e l i mi tati ons peri od for fi l i ng an
a cti on i s 300 days after the al l eged unl awfu l p r a c ti ce. See 29 U.S.C . § 6 26(d)(1)(B). Where the pl a i nti ff compl ai ns of di screte d i scri minatory o r retal i a tory acts such as

" termi nati on, fai l ure to promote, deni a l of transfer, or refusal to hi re," such cl a i ms are not acti onabl e i f they occurred pri or to the 3 00-day peri od even though they m ay be

" rel ated to" a cts that o ccurred wi thi n the permi ssib l e 3 00-day peri od. National R.R. P assenger Corp. v. Morgan , 536 U.S. 101, 113–14 (2002) (" Morgan ").

"Hosti l e envi ronment cl ai ms," however, "are di ff e r e n t i n ki nd from d i screte acts," as "[t]hei r very nature i nvol ves repeated conduct." Id . at 115.

The "unl a w ful empl oyment practi ce" therefore cannot be sai d t o occur on any parti cul ar day. It o ccurs over a series of d ays or perhaps years and, in direct contrast to discrete acts, a single act of harassment
28may not be actionable on its o w n . . . . Such c l a i m s are based o n the cumul ati ve effect of i ndi vi dual a cts. I d . (e m p hasi s added); see, e.g. , Harris , 510 U.S. at 2 1. Thus, "[a] charge al l egi ng a hosti l e work envi ronment cl ai m . . . wi l l not be ti me barred so l ong as al l acts whi ch
c onsti tute the cl ai m are part of the same unl awful empl oyment practi ce and at least one
a ct falls within the t ime period . " Morgan , 5 36 U.S. at 122 (emphasi s added); see, e.g. , id . a t 105 ("consi derati on of the enti re scope of a hosti l e work envi ronment c l a i m, i ncluding behavior alleged outside the statutory time period, is permissible for t h e purposes
o f assessing liability, so l on g a s a n act contributi ng to that hosti l e envi ronment takes pl a c e wi thi n the statutory ti me peri od" (emphases added)).

Moreover, even wi th respect to a c l a i m o f di screte di scri minatory or retal i a t ory acts, expi rati on of the l i mi tati ons peri od does not bar "an empl oyee from
u si ng the pri or acts a s background evi dence i n support of a ti m el y cl ai m." Id . at 113.

" [R]el evant background evi dence, such as statements by a deci si o nmaker or ea rl i er d eci si ons typi fyi ng the retal i ati on i nvol ved, may be consi dered to a ssess l i abi l i ty o n the ti mel y al l eged a ct." Jute v. Hamilton Sundstrand Co rp. , 420 F.3d 166, 176–77 (2d C i r. 2 005); see, e.g. , Petrosino v. Bell Atlantic, 385 F.3d 210, 220 (2d C i r. 2004).

29I n l ig h t o f these pri nci pl es, we concl ude that the enti rety of Garett' s

A DEA cl ai m that she was subjected to a hosti l e work envi ronment—bei ng, from the start of her empl o yment a t Anthropol ogi e, deni ed the trai ni ng gi ven to younger sal es
a ssoci ates and rel egated to work al mos t excl usi vel y i n the fi tting room, and l ater bei ng assi g n e d th e most unpl easant and arduous duti es and subjected to aged i sparagi ng cri ti ci sms dai l y—was ti mel y . The di st r i c t court erred i n rul i ng that i t
c o u l d n o t c onsi d er pre–February 16, 2 013 events i n c onnecti o n wi th assessment o f li ab i li ty on the hosti l e work envi ronment cl ai m and that i t coul d not consi der su c h events as background for her cl ai m of retal i ati on.

B . Principles Governing ADEA Retaliation Claims

In the i nterest o f "prevent[i ng] empl oyer i nte r f e r ence wi th unfettered
a ccess to [statutory] remedi al mechani sms," W hite, 548 U.S. at 6 8 (i nternal quotati o n
m arks omi tted), the ADEA, l i ke Ti tl e VII, prohibi ts "empl oyer acti ons that are l i kel y to d e ter v i cti ms of d i scri minati on from compl ai ni ng to the EEOC , the courts, and the i r empl oyers," id . (di scussi ng Ti tl e VII) (i nternal quotati on marks omi tted). Thus, the A DEA provi des that
30[i ]t shal l be u nl awful for an empl oyer to di scri minate agai nst any of hi s empl o yees . . . because such i ndi vi dual
. . . has opposed any practi ce made unl awful by thi s secti on, or beca use such i ndi vi dual
. . . has made a charge, testi fi ed, assi sted, or parti ci pated i n any manner i n an i nvesti g ati on, proceedi ng, or l i ti gati on under thi s chapter. 2 9 U.S.C . § 623(d).

Pri or to 2006, a pl ai nti ff cl a i ming retal i ati on for objecti ng to prohibi ted empl oyment di scri minati on was requi red to present a pri ma faci e case compri si ng four el ements, i.e. , that (1) she engaged in protected acti vi ty, (2) th e d e f endant was
a ware of that acti v i ty, (3) the pl ai nti ff suffered an a dverse empl oyment a cti on, and (4) there was a c ausal connecti on between the protected acti vi ty a n d the adverse empl oyme n t acti on. See generally Kessler v. Westchester County Department of Social S ervices , 461 F .3d 199, 204 (2d C i r. 2006) ( " Kes s l e r " ) ( d i s cussi ng Ti tl e VII and the A DEA). An "adverse empl oyment a cti on" i n thi s context meant—as i t di d i n the
c ontext of a substanti ve cl ai m for di scri minati o n, see, e.g. , Galabya, 202 F .3d at 640—"a
m ateri al l y adverse change in the terms and conditions of employment " such as t ermi nati o n, d emoti on evi denced by a decrease i n sal ary or wage, bei ng gi ven a l ess d i stingui shed ti tl e, a m ateri al l oss i n benefi t s, si gni fi ca n t l y d i mini shed m ateri al responsibi l i ti es, or some other acti on del eteri ous to the pl ai nti ff' s current or f uture 31em p l o y ment, K essler , 461 F.3d at 204 (emphasi s i n Kessler; other emphasi s and i nternal quotati on marks omi tted).

In 20 0 6 , however, the Supreme C ourt in W hite rul ed that Ti tl e VII' s

" anti retal i ati on provi si on, unl i ke the substanti ve provi s i o n, i s not l i mi ted t o d i scri minatory acti ons that affect the terms and condi ti ons o f empl oyment," 548 U.S.
a t 64. R ather, a pl ai nti ff may recover for retal i ati o n by "show[i ng] that a reasonabl e empl oyee woul d have found the chal l enged acti on m at e r i a l ly adverse, whi ch i n thi s
c ontext means it well might have d issuaded a reasonable worker from making o r supporting
a charge of discrimination ." Id . a t 68 (i nternal quota t i on marks omi tted (emphases
o urs)). The C ourt el aborated:

We speak of material adver s i ty because we bel i eve i t i s i m portant to separate si gni fi cant from tri vi alharms. . . . We refer to reacti ons of a reasonable empl oyee because we bel i eve that the provi si on' s standard for judging harm must be objecti ve. . . . We phrase the standard i n general term s b e cause the si gni fi cance of any gi ven act o f retal i ati on wi l l o ften depend upon the parti cul ar ci rcumstances. C ontext matters. . . . A supervi sor' s refusal to i nvi t e an empl oyee to l unch i s normal l y t r i v i a l, a nonacti onabl e petty sl i ght. But to retaliate by excluding a n employee from a weekly t raining l unch that contributes significantly to the
32employee's professional ad vancement m i ght well deter a reasonable employee from complaining about discrimination
. I d . at 68–69 (fi rst two emphases i n ori gi nal ; l ast emphasi s added).

After White, therefore, the harm el ement of a retal i ati o n cl ai m i s not t o b e anal yzed i n the same w ay as the harm from an al l eged substanti v e a c t o f d i scri minati on. S ee, e.g. , Kessler , 461 F.3d a t 207–10. "Pri or d e c i s i o n s o f thi s C i rcui t that l i m i t unl awful retal i a ti on to act i o n s th a t affect the terms and condi ti ons o f empl oyment, e.g. , . . . Galabya . . . , no l onger represent the state of the l aw." Hicks v. B aines , 593 F.3d 1 59, 165 ( 2d C i r. 2010). Instead, the proper questi on for a retal i ati o n
c l ai m i s "whether the [al l eged adverse acti on] to whi ch [the pl ai nti ff] was subjected
c oul d w el l have di ssuaded a reasonabl e empl oyee i n hi s posi ti on from c ompl ai ni ng
o f unl awful di scri minati on." Kessler , 461 F .3d a t 209; s ee White, 548 U.S. at 57 (whether th e a c t i o n "coul d w el l di ssuade a reasonabl e w orker from making o r supporti ng a
charge of di scri minati on").

In the p r e s e nt case, as di scussed i n Part I.D. above, the di stri ct court
a ppl i ed the standard used i n Galabya, whi ch i nvol ved a cl ai m of substanti ve d i scri minati on rather than one for retal i ati on, and w hi ch was deci ded some years

33before the deci si on i n White . In appl y i ng that pre- White substanti ve di scri minati o n

standard to the retal i ati on cl ai ms in the present case, the di stri ct court erred.

Anthropol ogi e argues that the summary di smi ssal of Garett' s retal i ati o n
c l ai m sh o u l d b e a ffi r m e d n o tw i th s tandi ng the di stri ct court' s appl i cati on of the wrong standard for harm, on the basi s that Garett f ai l ed t o a d d u c e suffi ci ent evi dence t o sho w c a u s ati on. We a re unpersuaded. Al though Anthropol ogi e notes that the d i stri c t court stated that " [t]here i s no evi dence that ei ther one of [Garett' s] managers
w a s even aware that she had made a compl a i nt to the Hotl i ne at the t i m e o f h e r t ransfer," D. C t. Op., 2017 WL 4326112, at *5, that statement cannot justi fy affi rmance. F i rst, "her transfer" must have referred to Garett' s transfer to Greenwi ch: The court had refused to consi d er any events pri or to mi d-February (the peri od i n whi ch Garett
w as reassi gned to Whi te Pl ai ns), and Garett i n f act was not transferred to Edgewater. B ut the record i s cl ear that both Shearer and Berry were aware of Garett' s compl ai nt
about Shearer before Garett was transferred to Greenwi ch. ( S ee, e.g. , S h e a rer Dep. 7 8–84.) Second, Anthropol ogi e says th at by "managers," the di stri ct court was instead referri ng to New Jersey di stri ct manager E rnst and Greenwi ch store manager
34Orr; but the c ourt' s referen c e t o "ei ther one of [Garett' s] managers" was

u naccompani ed by any names. And whi l e Anthropol o gi e argues that Ernst and Orr d i d not know of Garett' s hotl i ne co mp l a in t s , w e doubt that i t was these two indi vi dual s to whom the di stri ct court r e f e r r e d si nce (a) E rnst was never Garett' s
m anager, (b) Orr was not Garett' s manager i n Greenwi ch u nti l after that t ransfer, and ( c) we have not seen i n the record any i n d i cati on that ei ther E rnst or Orr had the
a uthori ty to transfer Garett.

To the extent that Anthropol ogi e—argui ng that the deci si on not t o have G arett i n Edg e w a t e r was made sol el y by New Jersey di stri ct manager Ernst ( see Anthropol ogi e bri ef o n appeal at 9 n.9)—suggests that the court' s statement referred instead t o G a r e t t ' s non-transfer to Edgewater, i ts argument i s equal l y fl awed. An inference can be drawn from the record that the deci si on that Garett shoul d not go t o E dgewater was made not by Ernst but by Shearer: Shearer t esti fi ed that, i n di scussi ng the non-transfer d eci si on wi th Garett, "I expl ai ned to her that I was real l y l ooki ng out for her best i nterests, . . . and I di d not thi nk that the Edgewater store was goi ng to be"

" a good experi ence" for her. (Shearer Dep. 82 (emphases added).) And a causal
c onnecti on between the protected acti vi ty and the company' s adverse empl oyment
35a cti on can be establ i shed by showi ng th a t the empl oyer' s acti on fol l owed the

protected acti vi ty cl osel y in ti me. See, e.g. , Kwan v. Andalex Group LLC , 737 F.3d 834, 8 45 (2d C i r. 2013); Kaytor v. Electric Boat Corp. , 609 F.3 d 5 3 7, 552 (2d C i r. 2010) ( " Kaytor " ); Kessle r, 461 F.3d at 2 10–11. Shearer testi fi ed that she g ave the above expl anati on to Garett after the conversati o n i n whi ch Berry—manager of the regi o n encompassi ng both Shearer' s di stri ct and Edgewater—had cal l ed Shearer to di scuss G arett' s potenti al transfer to Edgewater and i nformed Shearer of Garett' s hotl ine
c ompl ai nt about Shearer. Shearer testi fi ed that i t was i n that conversati on that "the d eci si on . . . that []Garett woul d not be transferred to the Edgewater store" was made. ( Shearer Dep. 78–80.)

Fi nal ly, al though Anthropol ogi e proffers the E d g e w ater personnel probl ems ( seePart I.B.2. above) as a l egi ti mate busi ness reason for denyi ng Garett a t ransf e r t o that store, that expl anati on cannot be accepted as a basi s for a judgment
a s a matter of l aw. For exampl e, the representati on that the d e c i s i on not to have G arett i n Ed g e w a t er w as made by Ernst i s i n tensi o n wi th Shearer' s testi mony that that d eci si on w as made i n the tel ephone cal l between Shea r e r a n d B erry. Further, E rnst' s statement that she di d not offer and coul d not have offered Garett the apparel
36supervi sor posi ti on i s di sputed by Garett' s testi mony that Ernst di d offer her the job.

And i n any event, any probl ems in Edgewater do not p rovi de a justi fi cati on for Shearer' s tel l i ng G a rett that she woul d be fi red unl ess she agreed to be reassi gned t o G reenwi ch, to a po s i ti o n a l ready o ccupi ed, and for whi ch she woul d be al l owed t o d o onl y the chores that were the most onerous.

C. Principles Governing Decision of Summary Judgment Motions

The pri nci pl es governi ng a d i stri ct court' s consi derati on of a moti on for
s u m mary judgment—whi ch al so govern appel l ate revi ew of a summary judgment d eci si on, see, e.g. , Kaytor, 609 F.3d at 546—are wel l es ta b l i s h e d
. In rul i ng on such a
m oti on, "the di stri ct court i s requ i red to resol ve a l l ambi gui ti es, and credi t al l factual inferences that coul d rati onal l y b e d r a w n, i n f avor of the party opposi ng summary j udgment." Kessler

, 461 F.3d at 2 06 ( in t e r n al quotati on marks o mi tted). "[A]t the summary judgment stage the jud g e ' s functi on i s not hi m sel f to wei gh the evi dence
and dete rmi ne the truth of the matter but to determi ne whether there i s a genui ne i ssue for tri al ." Anderson v. Liberty Lobby, Inc. , 4 77 U.S. 2 42, 2 49 (1 9 8 6). The court shoul d grant summary judgment onl y i f there i s no such i ssue and the moving party
37i s enti tl ed to judgme n t as a matter o f l aw. See, e.g. , id . at 247. Summary judgment

shoul d be d eni ed where there are genui ne i ssues of materi alfact "that properl y can be resol ved onl y by a fi nder of fact because they may reasonabl y be resol ved i n favor
o f ei ther party." Id . at 2 50. Summary judgment di smi ssi ng a cl ai m "i s i nappropri ate
when the admi ssibl e materi al s i n th e record make i t arguabl e that the cl ai m has
m eri t." Kaytor, 609 F.3d at 545 (internal quotati on marks omi tted).

In determi ni ng w h e th er there a re genui ne i ssues o f materi al fact to be t ri ed, "the di stri ct court may not properl y consi der the record i n pi ecemealfashi on, t rusti ng i nnoc e n t e x p l anati ons for i ndi vi d ual strands o f evi dence; rather, i t must

' revi ew al l of the evi dence i n the record.' " Id . (quoting Reeves v . Sanderson Plumbing P roducts, Inc. , 530 U.S. 133, 150 (2000) (revi ewi ng enti tl ement to j udgment as a matter
o f l aw under F ed. R . C i v. P. 50)); see Reeves , 5 30 U .S. at 150 ("the standard for granti ng summary judgment mi rrors the standard for judgment as a matter of l aw, such that the inqui ry u nder each i s the same," requi ri ng the court to "revi ew a l l of the evi dence in the record" (i nternal qu otati on m arks omi tted)). Pi ecemeal revi ew of the record "i s especi a l l y [i nappropri ate] i n consi deri ng cl ai m s o f h o s ti l e w o r k e nv i r o nment," Kaytor, 6 09 F.3d at 545, i.e. , an envi ronment that, as di scussed i n Part II.A. above, "occurs over
38a s e r i e s of days or perhaps years" and has a "cumul ati v e effect," Morgan , 5 36 U . S .

a t 115. In revi ewing " al l of the evi d ence i n the record," however, the court " may
n ot make credibility determinations or weigh the evidence," and i t "must draw all reasonable i nferences i n favor of the nonmoving p arty," Ree v e s , 5 3 0 U.S. at 150 (emphases added),

" ' even though contrar y i n f e r e n ces mi ght reasonabl y be drawn,' " Jasco Tools, Inc. v. D ana Corp. , 574 F.3d 1 2 9 , 152 (2d C i r. 2009) (quoting Continental O re Co. v. Union Carbide & Carbon Corp. , 370 U.S. 690, 696 (1962)). "C redibi l i ty d e te r m i n ati ons, the
w ei ghi ng of the evi dence, and the drawi ng of l egi ti mate i nferences from the facts are j ury functi ons, not those o f a judge." Reeves , 530 U.S. at 150 (i nternal quotati on marks
o mi tted). However,

al though the court shoul d revi ew the record as a w h o l e, it must disregard all evidence favorable to the moving party that the jury is not required to believe . . . . That i s, the court shoul d gi ve credence to the evi dence f avori ng the nonmovant as wel l as that e v i d e nce supporti ng the moving p a rty that i s uncontradi cted and uni mpeached, a t l east t o the extent that that evi dence c omes from di si nterested wi tnesses. I d . at 151 (internal quotati on marks omi tted (emphasi s ours)).

39In l i ght of thi s wel l esta b l i s h ed framework, the di stri ct court, in

c onsi d eri ng Anthropol ogi e' s moti on for summary judgment, w as requi red to accept
a l l sworn statements by Garett as to matters on whi ch she was competent to testi fy, incl uding what she di d, what she observed, and what she was tol d by company
m anagers; and i t was requi red to draw i n her favor a l l inferences that c o ul d reasonabl y be drawn from that evi dence. It was requi red to di sregard the contrary statements from Anthropol ogi e managers that a jury woul d not b e r e qui red t o bel i eve. Several aspects of the court' s di scussi on, however, reveal ei ther a pi ecemeal
a ssessment of i tems in the record or a rejecti on of Garett' s sworn statements.

For exampl e, wi th regard to Garett' s ci rcumstances i n Whi te Pl a i ns, the
c ourt stated that any age-rel ated remarks that B entl ey or Fi tzpatri ck made to Garett

" were o ccasi onal, i sol ated i nci dents," and were not suffi c i entl y severe to support the
c l ai m of hosti l e work envi r onment. D. C t. Op., 2017 WL 4326112, at *4. But Garett
s a id that i mmedi atel y upon her promoti on t o a pparel supervi sor, Bentl ey be c a m e
abusi ve, "treat[i ng her] i n a hosti l e and i nti mi dating manner" (Garett Aff. ¶ 33); that the apparel manager Fi tzpa t r i c k, w i th whom Garett had had a posi ti ve worki ng rel ati o nshi p—al thou gh she had not previ ousl y reported to F i tzpatri ck ( see id . ¶ 35;
40G arett Dep. 129)—began to i gnore Garett and then began to cri ti ci ze her ( see Garett

A f f
. ¶¶ 35–36); that Garett w as excl uded from management meeti ngs, whi ch were schedul ed to coi nci de wi th her absences ( see id . ¶ 35); that l i ttl e more than a week
a fter she became a supervi sor (a posi ti o n fo r whi ch G a r e tt , unl i k e younger empl o yees,
w as g i ven no trai ni ng ( see id .)), Bentl ey an d F i tzpatri ck berated her, sayi ng that her performance w as "terribl e," that she was "the worst apparel supervi sor that they had
ever seen i n thei r l i ves," that her "pace was too sl ow," that her "energy l evel " was too sl ow ( e.g. , Garett Dep. 144–45); and that Fi tzpatri ck, someti mes i n the presence o f
o ther empl oyees, cri ti ci zed Garett' s "' speed' " and "' pace' " "al most dai l y" (Garett Aff. ¶ 36; see Garett Dep. 136–37).

If a jury accepts that testi mony and credi ts G a r e tt' s testi mony that B entl ey i n June tol d her expl i ci tl y "You' re too o l d," and "You don' t have the energy"
and woul d n o t have "the stamina" to do the job, i t coul d reasonabl y i nfer that al l o f the comments from G a rett' s managers that she was too sl ow or not fast enough or not energeti c enough were euphemi sms about her a ge. Cf
. Weiss v . JPMorgan Chase & Co. , 3 32 F. App' x 659, 665 (2d C i r. 2009) ( "a jury coul d concl ude that the term ' energi z ed'
w as a euphemi sm for youthful " (ci ting Ash v. Tyson Foods, Inc. , 546 U .S. 454, 456–57
41( 2006))). Vi ewing as a whol e, rather than pi ecemeal, Garett' s testi mony as t o her

t reatment and the statements made to her by Anthropol ogi e managers, the jury c o ul d fi nd that G arett—casti gated, deni ed the t rai ning g i v e n to younger empl oyees, and excl uded from management meeti ngs—was subjected to age-rel ated di scri minati on,
c ri ti ci sm, and ostraci sm nearl y every day.

Si mi l arl y w i th respect to the retal i ati on cl ai m, the di stri ct court appears not to have consi dered the record as a who l e and pl a i nl y di d not describe i t i n the l i ght most favorabl e to Garett. For exampl e, the court rejected the cl ai m of retal i ati o n in part because Garett had been promoted to apparel supervi sor. It d i d not menti o n ( a) that thi s, accordi ng to Garett, occurred onl y after she had comp l a i n e d o f d i scri minati on, and (b) that i n her new posi ti on Garett was g i ven no trai ni ng and was
c ri ti ci zed for bei ng defi ci ent; that the l anguage used may permi ssibl y b e vi ewed as euphemi sti c di sparagement of her age, and she was so cri ti ci zed dai ly; and that she
w as promptl y schedul ed—more frequentl y than anyone had been i n the past—to do those duti es of the posi ti o n that everyone di sl i k ed the most.

C ommon sense sugge s t s that one good way to di scourage an empl oyee . . . from bri ngi ng di scri minati on charges woul d be t o i nsi st that she spend more ti me performi ng the m ore a rduo u s duti es and l ess ti me performi ng th o s e that are easi er or more 42agreeabl e. Th a t i s presumabl y why the EEOC has consi stentl y found " [r]etal i atory work assi gnments" to be a cl assi c and "wi del y recogni zed" exampl e of "forbi dden retal i ati on." W h ite, 548 U.S. at 70–71 (qu oting 2 EEOC 1991 Manual§ 614.7, at 614-31 to 614-32).

The di stri c t c ourt al so opi ned that "[m]erel y bei ng tr a n s f e r r e d to a d i fferent l ocati on than one requested, o n i ts o wn , does not consti tute an adverse empl oyment a cti on." D. Ct. Op., 2017 WL 4 326112, at *5 (emphasi s added). The court d i d not menti on, for exampl e, Garett' s testi mony that she had i n fact been offered the j ob she requested, onl y to have the offer countermanded upon Shearer' s l earni ng o f G arett' s compl ai nt agai nst her; that Garett was sent i nstead to a l ocati on i n whi ch the
a pparel supervi sor posi ti on she sought w as al re a d y fi l l e d ; and that i n that new l ocati on she w as agai n d eni ed trai ni ng, was a gai n rel egated mostly t o the fi tting room, and was assi gned t o none of the apparel supervi sor duti es that w ere "easi er or
m ore agreeabl e" but onl y to those that were "more arduous," White, 548 U.S. at 71, i.e. , the chores of openi ng and cl osi ng the store, whi ch "no one wants to do" (Garett Aff. ¶ 65). Appl yi ng the correct l egal standard to Garett' s cl ai m of retal i ati on, a j ury
c oul d rati onal l y fi nd that an empl o yee woul d l i kel y be deterred from compl ai ni ng t o
43the c ompany or to governmental a uthori ti es about di scr i mi nati on by her empl oyer

i f she knew her compl ai nt woul d resul t i n (1) the resci ssi on of a job reassi gnment offer she had sought and recei ve d , a n d (2) her t ransfer i nstead to a l ocati o n that she had not sought, for a p osi ti on that was not vacant, i n whi ch she woul d be deni ed al l
a spects of the reassi gned posi ti on except those that "no one wants to do."

The "factfinder of course w oul d not be requi red to draw i nferences f avorabl e to the pl ai nti ff" or accept her testi mony as c redibl e; "however, where
. . . the f actfinder woul d be permi tted to do so, thi s Court i n revi ewi ng summary judgment
must do so," Stern v. Trustees of Columbia University, 131 F.3d 305, 313–14 ( 2 d C i r . 1 997), and has done so here. We c oncl u de that Garett' s A DEA cl ai ms of hosti l e work envi ronment and retal i ati on shoul d proceed to tri al
.

D. Garett's State-Law Claims

As the d i stri ct court appl i ed the same l egal anal yses t o Garett' s hosti l e
w ork envi ronment and retal i ati on cl ai ms under the NYSHRL and C FEPA that i t
a ppl i ed under the A DEA, and the ADEA anal yses were fl awed, as di scussed i n Parts I I.A. and B. above, we vacate the judgment di smi ssi ng those state-l aw c l ai ms as wel l
.
44Di fferences between the ADEA and those state l aws m a y r e qu i re addi ti onal

c onsi d erati on.

C ONC LUSION

We h a v e consi dered al l of Anthropol ogi e' s appel l a te arguments in supp ort of summary j udgment and have found them to be wi thout meri t. The j udgment i s vacated, and the matter i s remanded for tri al o f G arett' s ADEA cl ai ms o f hosti l e work envi ronment and retal i ati on, and for further c onsi derati on of her cl ai ms
u nder state l aws.

45