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Second Circuit Skeptical About Amazon Covid-Based Race Bias Suit

Nov. 29, 2022, 7:31 PM

A Black former Amazon manager faced a seemingly skeptical Second Circuit Tuesday in his bid to revive a lawsuit alleging he was fired because of his race and for complaining that the company’s early Covid-19 safety measures intentionally discriminated against his Staten Island facility’s mostly minority line workers.

Christian Smalls also says he has standing to lead a race bias class action on behalf of the line workers. Smalls is the co-founder of the Amazon Labor Union, which workers at his former warehouse voted to join in April. His lawsuit here doesn’t include claims directly based on any union activities.

But Judges Debra Ann Livingston, Guido Calabresi, and Gerard E. Lynch questioned whether the allegations in Smalls’ November 2020 lawsuit linked his firing to his race or protected activity opposing race bias.

They also probed whether Smalls is similar enough to the line workers to lead the proposed class action given that he was a management associate, and they suggested that Smalls’ being fired immediately after leading a demonstration in the parking lot opposing the alleged lack of Covid safety precautions at the facility undercut his individual claims.

Smalls and the line workers were similarly situated for class purposes because they all worked in the same workplace and had the same basic right to be safe from the virus, attorney Michael H. Sussman told the US Court of Appeals for the Second Circuit. He is with Sussman & Associates in Goshen, N.Y., and represents Smalls.

Amazon.com Services LLC and Amazon Inc. engaged in intentional race discrimination by showing greater concern for the safety and health of managers during the onset of the pandemic, according to the suit. Managers at the warehouse were predominantly White, the suit says.

A memorandum from the company’s general counsel to Jeff Bezos two days after Smalls was fired shows the link to Smalls’ race, Sussman said. The memo described Smalls as “not smart or articulate” and suggested making him the face of the workers criticizing the facility’s Covid safety, Sussman said.

According to the company, Smalls was fired because he asked to be and was placed on quarantine after being in close contact with a co-worker who tested positive but then returned to the facility for a demonstration against Covid safety. His return broke quarantine and exposed many other employees to the virus, attorney Jason C. Schwartz told the US Court of Appeals for the Second Circuit. Schwartz is with Gibson, Dunn & Crutcher LLP, which represents Amazon.

That firing explanation is a pretext for race discrimination and retaliation, Sussman said.

‘Immediate Proximate Cause’

But the judges questioned what the memo has to do with Smalls’ firing since it was written two days after his termination. The memo may say something about the general background at Amazon, but that doesn’t show race bias or retaliation against Smalls, one judge said.

The lawsuit also alleges that the firing occurred immediately after the parking lot demonstration, a judge said. “That’s the immediate proximate cause.” The judge asked where the evidence was that a White manager wouldn’t have been fired for engaging in the same actions as Smalls.

If a reason for an adverse employment action was pretextual, but that pretext wasn’t a cover for bias based on race or for opposing race discrimination, it “doesn’t count” for purposes of Smalls asserting discrimination because he is Black or because he complained on behalf of minority workers, another judge said. There’s good reason to think the firing was because of Smalls’ organizing, the judge said.

Smalls was fired for two reasons, his race and his advocacy, Sussman said. Amazon would have and should have understood from the context that Smalls was speaking about race because he was complaining about disparate Covid safety enforcement, Sussman said. It knew a movement against the lackluster safety measures was developing and that Smalls was leading it, Sussman said.

That’s enough under the Second Circuit’s pleading standard, and the general counsel’s memo reaffirmed that Amazon knew Smalls was complaining about race bias, Sussman said.

Connection to Race Lacking

Nothing in the lawsuit supports a racial motive for Smalls’ termination, Schwartz said.

He points to the general counsel’s memo, but it doesn’t mention that Smalls was fired and Smalls doesn’t even allege that the memo concerns his termination, Schwartz said.

The memo was written after the fact, and the general counsel wasn’t involved in the decision to fire Smalls, Schwartz said. Referring to someone as not smart or articulate could potentially show race bias, but more is needed to make that connection than just the words in the memo, Schwartz said.

The lawsuit’s only other reference to race is the allegation that Amazon was “far more receptive” to complaints about Covid safety when White workers were among the group raising the issue, Schwartz said. That’s not enough to show the company intentionally acted with a racially discriminatory purpose, he said.

Smalls also acknowledged that there were Black and White employees among both management and the line workers, Schwartz said. The lawsuit doesn’t really allege differential treatment because the concern was for Covid workplace safety generally, Schwartz said.

The suit at most describes potential disparate impact or unintentional bias, Schwartz said. That isn’t enough under 42 U.S.C. §1981, which requires proof of intentional discrimination, he said.

Class Makings Probed

The judges also questioned whether Smalls was similar enough to the line workers to head a class race bias claim under Section 1981.

In response to Sussman’s statement that it’s sufficient that they all worked at the same facility and had the same right to workplace safety, one judge asked if managers and line workers performed their duties in different workspaces. If so, he asked, did they require different care?

The workspaces of managers and line workers were different, with some employees working in closer proximity to each other than other employees, Sussman said. But they all had the same right to be protected from Covid, he said.

Smalls was a manager on the floor of the facility, Sussman said. He supervised workers on the line, Sussman said.

“Where is that alleged in the lawsuit?” a judge asked.

The complaint allows for the inference that Smalls and the line workers worked in close contact with each other, Sussman said.

The suit clearly says that Smalls was a manager, and managers aren’t similarly situated to their subordinates as a general rule, Schwartz said.

Smalls also lacks standing to lead a class action because he no longer works at Amazon and therefore can’t seek forward-looking relief, Schwartz said.

And Smalls can’t seek retrospective class relief either because the only alleged harm he pointed to was being exposed to Covid, Schwartz said. That’s not enough to establish standing, Schwartz said.

The case is Smalls v. Amazon.com Servs., LLC, 2d Cir., No. 22-00615, oral argument 11/29/22.

To contact the reporter on this story: Patrick Dorrian in Washington at pdorrian@bloomberglaw.com

To contact the editors responsible for this story: Rob Tricchinelli at rtricchinelli@bloomberglaw.com; Patrick L. Gregory at pgregory@bloomberglaw.com