A New York federal judge seemed skeptical that a former Amazon worker could sufficiently show that he was fired for whistleblowing on allegedly discriminatory COVID-19 policies. U.S. District Judge Rachel P. Kovner said that the ex-employee’s seemingly deficient pleadings and his workplace conduct could undermine his case.
In Smalls et al. v. Amazon Inc., a 2021 case filed in the U.S. District Court for the Eastern District of New York, Christian Smalls brought a putative class action against Amazon, alleging that he was terminated for claiming that the company treated Black and Latino line workers differently than mostly white managers when providing safeguards and protections from the pandemic.
Amazon filed a motion to dismiss in March 2021, arguing that Smalls, who managed line workers in the company’s Staten Island warehouse, is not similarly situated to the class he seeks to represent. The online giant also argued that Smalls never put Amazon on notice that he was raising workplace safety issues tied explicitly to race.
“I think there may be a pleading deficiency there,” Judge Kovner told an attorney for Smalls during a hearing Tuesday. “What you are saying is he opposed practices that did in fact discriminate against minority workers. You’re not saying that he opposed the practices on the grounds that they discriminated against minority workers. How would that put Amazon on notice?”
Smalls’ attorney, Michael H. Sussman, said his client made the connection explicit during a 2020 rally outside the fulfillment center. If he is allowed to amend his complaint, then the matter would likely become “a jury question-type dispute,” Kovner noted. In response, Amazon argued Smalls shouldn’t have the chance to cure the apparent deficiency.
“This is already his amended complaint. He’s been on notice of this motion for almost a year,” Amazon attorney Jason Schwartz told the court. “If that were true, you would have expected him to amend already. And Second Circuit precedent suggests you don’t have to give him another chance to do that. There’s no way he can amend the complaint to make this claim plausible.”
Amazon claims it terminated Smalls for showing up to the rally even after receiving a quarantine order following exposure to a co-worker who later tested positive for COVID-19. Smalls responded that he was quarantined to silence his advocacy, but Amazon accused Smalls of actually requesting the quarantine he was later fired for ignoring.
“He’s given an instruction to quarantine, and then he doesn’t quarantine — isn’t that something you would expect someone to get fired for?” Judge Kovner asked Sussman. “Why wouldn’t an inference be very strong that he was fired for violating the order?”
Smalls’ managerial position on the warehouse floor also complicates his case, the judge suggests, since he seeks to represent plaintiffs who worked different positions and allegedly received different accommodations.
“How was he injured by policies with respect to line workers if he himself was not a line worker?” Judge Kovner asked. “Is he a line worker getting deficient protection or a manager getting good protection?” Sussman said that although Smalls was managerial, he worked proximate to the line workers.
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