Age Claim of Worker Who Was Called ‘Mommy’ Advances

By Christina Sondermann Capizzi May 29, 2019
Age Claim of Worker Who Was Called ‘Mommy’ Advances

​The 2nd U.S. Circuit Court of Appeals revived the age-discrimination claim of an employee who co-workers allegedly called "Mommy" and who said she was given undesirable assignments.

Anthropologie Inc. employed the plaintiff, who was 54 years old, for approximately one year in three of its New York and Connecticut stores. The plaintiff alleged she was denied training and opportunities provided to younger associates and primarily assigned to the less-desired fitting room. When transferred over 30 miles away to another store after her original location closed, management allegedly told the plaintiff the older demographic of shoppers made the new location a better fit for her. She claimed to have again been given "undesirable" assignments, and the plaintiff's new co-workers also allegedly referred to her as "Mom" or "Mommy."

After complaining through the company's hotline when a manager allegedly told her she was too old for a supervisor position, the plaintiff was promoted to apparel supervisor. She claimed she was given no management training, assigned the undesirable task of opening or closing the store on 20 consecutive days, and criticized about the pace of her work. The plaintiff was ultimately transferred to a Greenwich, Conn., store after the company denied her request for a transfer to a store closer to home. Shortly thereafter, the plaintiff was fired after calling the police on a suspicious man rather than following company policy regarding shoplifters.

The company disputed much of the plaintiff's account in her lawsuit under the Age Discrimination in Employment Act. It claimed the plaintiff left and never returned to work after receiving a written warning for violating the company policy regarding shoplifters.

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On appeal, the 2nd Circuit overturned the district court's ruling in favor of the company on summary judgment, on the grounds that evidence of age-based motive from the time the plaintiff's employment began could be considered to assess liability on the hostile work environment claim. Such evidence was permissible when at least one of the acts fell within the prescribed time period. In addition, the same evidence could be considered as background for a claim of retaliation.

The appeals court also decided that the district court applied an outdated standard in retaliation claims. The district court should have required only that the challenged action "might have dissuaded a reasonable worker from making or supporting a charge of discrimination," as the Supreme Court set forth in Burlington Northern & Santa Fe Railway Co. v. White.

The 2nd Circuit also criticized the district court's attempts to weigh conflicting evidence presented by the parties rather than consider the evidence in the light most favorable to the plaintiff, as required when evaluating motions for summary judgment.

Davis-Garett v. Urban Outfitters Inc., 2nd Cir., No. 17-cv-3371 (April 8, 2019).

Professional Pointer: This case is an important reminder that a court may consider prior acts as part of a continuing-violation theory or as background evidence and hold employers accountable for failing to prevent and correct behavior that may violate the law. Even without a report of inappropriate behavior, the actions of employees and managers that may appear to be minor or innocuous standing alone may accumulate over time to support a hostile work environment claim or provide context for a claim of discrimination or retaliation.

Christina Sondermann Capizzi is an attorney with McMahon Berger P.C., the Worklaw® Network member firm in St. Louis. 


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