Flaherty v. Dixon

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MARIE FLAHERTY, Plaintiff, v. LINDSEY S. DIXON, et al., Defendants.

No. 22 Civ. 2642 (LGS)

United States District Court, S.D. New York

February 16, 2023

OPINION AND ORDER

LORNA G. SCHOFIELD, DISTRICT JUDGE:

Plaintiff Marie Flaherty brought this action in New York County Supreme Court against Defendant Lindsey S. Dixon and several “John Doe” Defendants for defamation, tortious interference with contract, intentional infliction of emotional distress (“IIED”) and negligent infliction of emotional distress (“NIED”). Dixon timely removed the case to this Court. Defendant moves to dismiss the First Amended Complaint (“FAC”), the operative complaint. Plaintiff opposes dismissal and seeks leave to file a proposed second amended complaint (“PSAC”) adding Defendants Amazon.com, Inc. (“Amazon”), Prime Now LLC, Whole Foods Markets Services, Inc. (“WFM”), Jennifer Hutt, Davy Cumberland, and several additional Doe Defendants, and adding claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 1981, the New York State Human Rights Law (“NYSHRL”), the New York City Human Rights Law (“NYCHRL”), New York Labor Law § 740 (“NYLL § 740”), and claims for negligent supervision, negligent hiring and breach of the implied covenant of good faith and fair dealing. For the reasons below, Defendant's motion to dismiss is granted, and Plaintiff's motion for leave to amend is granted in part and denied in part.

I. BACKGROUND

A. Plaintiff's First Amended Complaint

The following facts are taken from the FAC and assumed to be true for purposes of this motion. See Francis v. Kings Park Manor, Inc., 992 F.3d 67, 72 (2d Cir. 2021). Plaintiff is a licensed attorney in Massachusetts. From March 27 to May 15, 2020, Plaintiff was employed by Amazon as a “Seasonal Amazon Shopper.” Plaintiff's job was to complete shopping orders for customers who ordered food and other products online from two WFM locations in Manhattan. Defendant Dixon was Plaintiff's manager, and the Doe Defendants are other individuals or entities associated with Amazon.

Plaintiff worked for Amazon at a time when the COVID-19 pandemic affected New York City particularly severely. Plaintiff diligently complied with safety protocols, including social distancing and personal protective equipment (“PPE”) rules. Defendants did not comply with or enforce COVID-19 safety protocols in the workplace, and they mocked, harassed and retaliated against employees who raised concerns about COVID-19. Amazon routinely notified its employees when coworkers were diagnosed with COVID-19 but did not notify customers. Plaintiff raised concerns about this practice. On April 26, 2020, Plaintiff filed an Equal Employment Opportunity Commission (“EEOC”) complaint regarding the conditions of her employment at Amazon and Defendants' failure to follow COVID-19 protocols and to notify customers when employees were infected with COVID-19. Dixon failed to respond adequately to the ensuing EEOC investigation.

On May 6, 2020, Dixon sent Plaintiff an email stating: “On 4/26/20, you were found to have participated in harassing/discriminatory behavior. Specifically, you admitted to the STL on site that you called WFM employees racist and stated that all of the ‘colored people' in the store are racist.” The email also notified Plaintiff that her employment would end, “effective immediately.” Plaintiff did not call any “WFM employees racist,” did not “admit” that she did so, did not say “that all of the ‘colored people' in the store are racist,” would not use the term “colored” in that context and did not participate in any harassing or discriminatory behavior. Plaintiff denied the allegations in the email and asked Dixon to identify the “STL” and the “WFM employees” referenced in the email, but Dixon has not done so. Dixon avoided speaking with Plaintiff about the allegations and has refused to retract the statements in the email or reinstate Plaintiff's employment. Dixon forwarded the email quoted above to other Amazon employees in April and May 2020, and repeated the statements contained therein during the EEOC investigation.

Dixon lacked authority to fire Plaintiff, but after she sent the email above to Plaintiff, Dixon told Plaintiff not to show up for scheduled shifts. On May 13, 2020, Plaintiff received notice from Amazon that she was being fired effective May 15, 2020, for missing her shifts.

B. Plaintiff's Proposed Second Amended Complaint

The following facts are taken from Plaintiff's PSAC and assumed to be true for purposes of this motion, since Defendant opposes Plaintiff's motion on the ground that amendment would be futile. See Francis, 992 F.3d at 72. The PSAC includes most of the allegations in the FAC, and only allegations that are new in the PSAC are recited below.

At the time Plaintiff was hired by Amazon, the company did not conduct background checks or drug tests on most employees, nor did it conduct training on COVID-19. Supervisors from Amazon and WFM did not enforce COVID-19 safety measures, and many Amazon and WFM employees did not comply with such measures. Amazon was accused by the New York Attorney General of retaliating against employees who raised concerns over working conditions during the COVID-19 pandemic.

Plaintiff was often the only white person or one of two white people working as an Amazon Shopper, and Plaintiff asserts that she was treated less well than her coworkers who were people of color. On one occasion, an unnamed coworker began speaking to Plaintiff in Gaelic and told Plaintiff she assumed Plaintiff was Irish and therefore might speak Gaelic. During “New Hire Orientation,” Plaintiff was instructed to ask WFM employees for assistance if she was unable to find an item requested by a customer, but Plaintiff claims that coworkers refused to help her on several occasions. Plaintiff asserts that on some unspecified occasions various Doe Defendants told her falsely that products were unavailable, and that those same Doe Defendants would immediately check the stock when asked by Plaintiff's coworkers of color. Another Doe Defendant asked Plaintiff to speak louder when she approached the deli counter, apparently because Plaintiff wore two masks and a face shield to protect herself from COVID-19. That same Doe Defendant gave Plaintiff different, inferior products instead of those Plaintiff requested. Plaintiff also alleges that she was treated less well because of the measures she took to protect herself from COVID-19, and that her coworkers engaged in various behaviors that risked increasing the spread of COVID-19 and harmed customers. Plaintiff did not observe her coworkers of color being subjected to any of the conditions described above.

When Plaintiff complained to a manager about WFM employees' hostility, the manager informed her that WFM employees' treatment of Amazon Shoppers was a chronic problem. A “Regular Amazon Shopper” -- as opposed to a “Seasonal Amazon Shopper” like Plaintiff -- failed to train Plaintiff adequately on certain aspects of the job and complained about Seasonal Amazon Shoppers taking shifts. Some Regular Amazon Shoppers attempted to “help” Plaintiff with her orders but made errors that reduced Plaintiff's productivity.

On April 26, 2020, after a WFM employee refused to help Plaintiff fill an order, Plaintiff complained about her employment conditions to a supervisor, Davy Cumberland. Plaintiff complained about what she perceived as WFM employees' racially motivated refusal to help her and refusal to comply with COVID-19 safety measures. Cumberland asked her if she was OK and suggested that she should be sent home. Plaintiff stated that she was particularly concerned about COVID-19 because she had undergone open-heart surgery. Plaintiff asked if she should call the police to report violations of COVID-19 policies, and Cumberland agreed that she should. Plaintiff left her phone in the room where she had been speaking with the supervisor, and Cumberland refused to return it.

On May 1, 2020, another Doe Defendant initially refused to help Plaintiff fill an order at the meat counter, then became angry and threw a piece of meat at the wall. After that incident, Plaintiff complained about perceived racial harassment to two more supervisors. One supervisor suggested that he would not preserve video of the incident absent a subpoena. Defendants never followed up on any of Plaintiff's complaints.

Defendant Dixon's email to Plaintiff, discussed above, was preceded by an email from Cumberland to Dixon on April 26, 2020, in which Cumberland said that Plaintiff had accused coworkers of being racist and threatened to call the police on those who failed to comply with COVID-19 safety measures. Cumberland wrote that Plaintiff “seemed a little off as if she was hyper or on a drug.” Cumberland told Dixon, “Marie admitted to me that she called them racists on the sales floor and also let me know all the ‘colored people' in our store is racists.” Prior to Cumberland sending this email, he was aware that Plaintiff had made a complaint about his behavior by calling Amazon's Human Resources Emergency Line.

II. DISCUSSION

A. Defendant's Motion to Dismiss the FAC

1. Legal Standard for a Motion to Dismiss

On a motion to dismiss, a court accepts as true all well-pleaded factual allegations and draws all reasonable inferences in favor of the non-moving party but does not consider “conclusory allegations or legal conclusions couched as factual allegations.” Dixon v. von Blanckensee, 994 F.3d 95, 101 (2d Cir. 2021) (internal quotation marks omitted). To withstand a motion to dismiss “a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Kaplan v. Lebanese Canadian Bank, SAL, ...