Category: Employment Law

Second Circuit Rules that Hostile Work Environment and Retaliation Claims can Proceed Against Anthropologie and Urban Outfitters

Case Name: Davis-Garett v. Urban Outfitters, Inc.

Date of Opinion: April 8, 2019

Opinion by: Judge Kearse


Plaintiff Blair Davis-Garett brought an employment discrimination suit against her former employer, Anthropologie, Inc. and its parent company, Urban Outfitters, Inc., alleging that they discriminated against her on the basis of age and retaliated against her for bringing discrimination complaints. For example, she stated that when she worked at an Anthropologie store at the Roosevelt Field Mall in Long Island, the other sales associates got to rotate through various sections of the store, while she (at age 54) was assigned to spend most of her time staffing the fitting room. She further alleged that after that store closed, she was reassigned to the Anthropologie store in White Plains and told that she had been placed there because of the “demographics in White Plains,” i.e., that the “people that shopped in the store were older.” She alleged that there, she once again received less favorable assignments than her younger colleagues. After complaining, she was transferred to the Greenwich store, and was later terminated after an incident where she called the police on someone whom she believed was shoplifting. Ultimately, the District Court for the Southern District of New York granted summary judgment to the defendants, holding that Plaintiff had failed to present sufficient evidence of age-related abuse and adverse employment action to support her claims.

The Plaintiff appealed, and the Second Circuit vacated the judgment and remanded the Plaintiff’s federal and state claims back to the district court. It found that the district court erred in finding that pre-February 16, 2013 events were time barred in connection with Plaintiff’s claims since they occurred before the permissible 300-day filing period under 29 U.S.C. § 626(d)(1)(B). The Second Circuit held that since hostile work environment claims involve repeated conduct and are based on the cumulative effects of individual acts, a claim will not be time-barred as long as all acts that constitute the claim are “part of the same unlawful employment practice and at least one act falls within the time period.” In addition, the time bar does not prevent a plaintiff from using prior acts that fall outside of the scope of the permissible time period as background evidence in support of a timely-filed retaliation claim.

Continue reading

Second Circuit Holds that Hostile Work Environment Claims are Cognizable under the Americans with Disabilities Act

Case Name: Fox v. Costco Wholesale Corporation

Date of Opinion: March 6, 2019

Opinion by: Judge Hall


In this decision, the Second Circuit held that hostile work environment claims are cognizable under the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12111 et seq.

Plaintiff-Appellant Christopher Fox has suffered from Tourette’s Syndrome and Obsessive‐ Compulsive Disorder (“OCD”) since birth. In 1996, he started working for Costco’s Holbrook, New York warehouse. During his long tenure, he worked on the floor crew, as an Assistant Cashier, Cashier, and Greeter. In 2013, while Fox was working as a Greeter, he was reprimanded twice by an Assistant Manager who was not his immediate supervisor, for leaving the Costco entrance area and for leaving a cart unattended in front of the freezers. There was no formal disciplinary action. Costco’s management received two customer complaints about Fox’s behavior in 2013 and 2014 while he was working as a Greeter. Both complaints were from female customers who took issue with comments Fox made to them, one about her appearance, and the other, about his love for her. After the first complaint, General Manager Larry Resnikoff addressed the matter with Fox and warned him he would terminated if it happened again. After the second complaint, Resnikoff asked Fox to write down what happened, then suspended Fox for three days without pay and transferred him to an Assistant Cashier position so he would have less direct contact with customers. The transfer was made in lieu of Fox’s termination, and neither his salary nor his benefits were reduced as a result.

Once he began his position as an Assistant Cashier, other Costco employees bullied Fox. His neurological condition often caused him to touch the floor before moving, and he would often cough when he felt a verbal tic coming on, in order to prevent others from hearing him swear. The Costco employees mocked him by making “hut-hut-hike” remarks to mimic his verbal and physical tics. Additionally, Fox was denied his breaks on a couple occasions in 2014. Fox emailed Costco’s CEO Craig Jelinek in March 2014 to explain his working conditions and his concern that the recent change in atmosphere was causing him stress and aggravating his symptoms. Fox did not mention the “hut-hut-hike” comments. Even though Fox had not followed Costco’s internal procedures for filing complaints, Resnikoff initiated an investigation, interviewing employees and transferring one of the perpetrators to another position. After the investigation, Costco employees continued to treat Fox poorly because of his disability. In November 2014, Fox suffered a panic attack while he was at work, for which he required medical attention. He has been on indefinite medical leave since the anxiety attack.

In January 2015, Fox sued Costco for disability discrimination under the ADA and New York State Human Rights Law (“NYSHRL”), alleging hostile work environment, disparate treatment, failure to accommodate, and retaliation. The U.S. District Court for the Eastern District of New York granted summary judgment to Costco on all of Fox’s claims, determining that the record did not sufficiently support any of Fox’s theories of recovery.

On appeal, the Second Circuit affirmed in part the district court’s judgment dismissing the disparate treatment, failure to accommodate, and retaliation claims. However, it vacated in part the order barring Fox’s hostile work environment claim and remanded it for further proceedings, after finding that such claims are cognizable under the ADA and that there are disputes as to material facts with regard to Fox’s claim.

Continue reading

Second Circuit Applies “Primary Beneficiary” Test to Distinguish “Employees” from “Bona Fide Students” in For-Profit, Vocational Training Context, Upholding Dismissal of Former Cosmetology Student’s Claims for Compensation for Services Performed in Student Salon During Training

Case Name: Velarde v. GW GJ, Inc., et al.

Date of Opinion: February 5, 2019

Opinion by: Judge ­­­­­Carney


The Second Circuit considered whether Glatt’s “primary beneficiary” test, used to distinguish “employees” from “bona fide interns” under state and federal wage laws, applies to individuals enrolled in a for‐profit vocational academy who are preparing to take a state licensure examination and who must first fulfill state minimum training requirements.

In 2014, Plaintiff-Appellant Patrick Velarde sued the Academy, a for‐profit cosmetology training school operated by the individual defendants, for unpaid wages in violation of the Fair Labor Standards Act (“FLSA”) and Articles 6 and 19 of the New York Labor Law (“NYLL”). Velarde had enrolled in defendants’ program in April 2011, completed the 1,000-hour course of study in November of that year, and became a licensed cosmetologist in New York in 2012. In his suit, Velarde alleged he was required to perform cosmetology services without compensation in the Academy’s student salon as a part of his vocational training at the Academy for becoming a licensed beautician, and that this requirement violated state and federal wage laws.

The United States District Court for the Western District of New York granted judgment on the pleadings to the Academy, reasoning under the test established in Glatt v. Fox Searchlight Pictures, Inc, 811 F.3d 528 (2d Cir. 2015) that Velarde was not an “employee” entitled to compensation under the FLSA and NYLL statutes because he was the “primary beneficiary” of his relationship with the Academy. On appeal to the Second Circuit, Velarde argued the district court erred in applying Glatt’s primary beneficiary test in his situation as he was not an intern. Instead, he reasoned, he was an “employee” entitled to compensation based on the “immediate advantage” that the Academy received from his labor in the form of customer payments for the salon services.

Although the Second Circuit agreed with Velarde that the Academy’s benefits from his work during his time in the program was relevant to determining if it “employed” him for FLSA purposes, it reiterated its holding in Glatt that this was merely one factor bearing on the analysis. It agreed with the district court that Glatt’s primary beneficiary test, developed as a way to distinguish between “employees” and “bona fide interns,” properly applies to distinguishing between “employees” and “bona fide students” in the vocational training context. Continue reading