Fox v. Starbucks Corp., 19-CV-4650 (AJN)

• Decision Date: 13 September 2021
• Docket Number: 19-CV-4650 (AJN)
• Parties: Rafael Fox, et al., Plaintiffs, v. Starbucks Corporation, Defendant.
• Court: United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York

Rafael Fox, et al., Plaintiffs,
v.
Starbucks Corporation, Defendant.

No. 19-CV-4650 (AJN)

United States District Court, S.D. New York

September 13, 2021

OPINION & ORDER

ALISON J. NATHAN, District Judge:

Plaintiffs Rafael Fox, Paul D'Auria, and Jill Shwiner filed this action against Defendant Starbucks Corporation on May 21, 2019. Fox claims that his former employer, Starbucks, unlawfully retaliated against him for reporting the use of a dangerous pesticide in Starbucks's Manhattan stores and the underpayment of Starbucks workers. D'Auria and Shwiner, who were pest control contractors for Starbucks, bring a claim for negligent infliction of emotional distress resulting from Starbucks's use of a dangerous pesticide in their stores. Starbucks on January 14, 2021, filed a motion for summary judgment in its favor on all four claims. For the reasons given below, the Court GRANTS Starbucks's motion.

I. Background

A. Factual Background

The following facts are drawn from the parties' statements and counter-statements made pursuant to Local Civil Rule 56.1.^[1]

Rafael Fox was hired by Starbucks as a barista in 2001. Pls. 56.1 ¶ 5, Dkt. No. 106. Between 2002 and 2007, Fox was promoted several times, ultimately becoming a Manager in 2007. Id. ¶ 6. In 2009, Fox was assigned to be the store manager of the Starbucks store at Broadway and Canal. Id. ¶ 7. Starbucks transferred Fox from that location to the West Broadway and Leonard location in October 2017. Id. Fox worked at that location until he was terminated in February 2018. Id.

Peter D'Auria and Jill Shwiner both worked at AVP Termite & Pest Control of New York, Inc. Id. ¶ 9. D'Auria was “a licensed, certified Pest Control Technician, ” meaning that he responded “to particular stores in the event of any emergent pest control challenges.” Id. ¶ 10. He was tasked with, among other duties, “[m]aintaining knowledge and implementation of applicable laws, rules, and regulations governing pesticide application in (including documenting illegal pesticide use).” Weber Decl., Ex. G at 2, Dkt. No. 99; Pls. 56.1 ¶ 17. Shwiner was AVP's Direction of Operations, in which role she provided “periodic training to Starbucks management personnel in Manhattan, ” walked through stores with Starbucks District Managers, and “perform[ed] on-site inspections.” Pls. 56.1 ¶¶ 11-12. Shwiner was also responsible for “responding to AVP customer concerns and troubleshooting any customer issue.” Id. ¶ 15.

Starbucks hired AVP to provide pest control services to some of its Manhattan stores pursuant to a proposal prepared by AVP in 2012. Id. ¶¶ 9, 13-14. According to the proposal, AVP would “perform regularly scheduled pest elimination to each store as is designated for pest control service for Starbucks Coffee Co.” Graff Decl., Ex. 23 at 2, Dkt. No. 105. AVP provided these services through the time period at issue in this case. Pls. 56.1 ¶¶ 9, 14. D'Auria and Shwiner both worked with Starbucks in their roles at AVP. Id. ¶¶ 9-11, 18.

Plaintiffs are connected in the Complaint by Starbucks's use of a pesticide product called the No-Pest Strip2, alternatively referred to by the parties as a “hot shot, ” “pest strip, ” or “no pest strip.” Id. ¶ 8. It is undisputed that pest strips can be dangerous to humans. For example, the product's label states, “Do not use in . . . food/feed establishments, ” and “FOR USE IN UNOCCUPIED AREAS.” Id. ¶ 157. The label further states, “Do not use in kitchens, restaurants or areas where food is prepared or served. Do not use in homes except for garages, attics, crawl spaces, and sheds occupied by people for less than 4 hours per day.” Id. ¶ 158. Additionally, both the Centers for Disease Control and the National Institute for Occupational Safety and Health warn consumers about the dangers of exposure to Dichlorvos (or “DDVP”), the active pesticide in pest strips. Id. ¶¶ 159-60.

It is undisputed that these pest strips were present in some Starbucks stores in Manhattan throughout the time period at issue. Id. ¶¶ 30-32. D'Auria and Shwiner discovered the pest strips at Starbucks stores and sent repeated messages to Starbucks management that they should not be used. Id. ¶¶ 53, 128-30.

Both Starbucks's Food Safety Manual and its Inspector Operations Manual forbid the use of pesticides by Starbucks staff, including DDVP. Id. ¶¶ 25-26. Starbucks management also “repeatedly and officially disclaimed” the use of pest strips and other pesticides in its stores. Id. ¶ 29. For example, both Margaret Kis, Starbucks Manager of Facilities Services, and Rami Kranz, the Regional Retail Qualify Assurance Manager, told managers in a series of emails from 2015 to 2018, often at the urging of Shwiner or D'Auria, not to use pest strips in their stores and to remove any that they found. Id. ¶¶ 29, 35-37, 39-40, 41-42, 44, 50-53; e.g., Kranz Decl., Exs. 7-10, Dkt. No. 98. These official policies and repeated warnings notwithstanding, pest strips were deployed in Starbucks stores.

Fox was transferred to the West Broadway and Leonard store to replace the prior store manager. Id. ¶ 54. Starbucks had terminated that prior store manager after District Manager Leslie Fable discovered that he had manipulated employees' time records, which resulted in underpayment of wages. Id. ¶¶ 54-55.^[2] Fable recommended Fox's transfer to the store, which was ordered by Regional Director Carla Ruffin, who was Fable's supervisor. Id. ¶¶ 58-59. The parties dispute precisely why Fox was chosen for this transfer. According to Starbucks, Fox was chosen because his performance at the prior location had grown “stagnant, ” and Starbucks hoped that a transfer would “revitalize his leadership capabilities.” Id. ¶ 60. Ruffin stated, for example, that Fox's prior store had not been meeting Starbucks's standards. Id. ¶ 61. According to Fox, he was transferred because the employees at the new location had “been through a lot” and Fox “would be perfect for the role.” Id. ¶ 59. He notes, in support, that he was chosen in 2016 as “Manager of the Quarter” for his Region, and that he once received “the highest scores in his District” from Quality Assurance. Id. ¶ 60. Regardless of the reason, Fable, who discovered the misconduct, was then transferred to Brooklyn, which he considered a “favorable assignment, ” and Timothy Hutchinson became the new District Manager supervising Fox. Id. ¶¶ 62-63. Like Fable, Hutchinson reported to Ruffin, the Regional Director. Id. ¶ 64.

After transferring to the West Broadway and Leonard store in October 2017, Fox concluded that the prior store manager had committed additional misconduct that he believed Starbucks management did not know. Id. ¶ 65. Specifically, Fox determined that only one employee had received back pay for the time manipulation when in fact other employees at the store were owed back pay. Id. ¶¶ 56, 65. Fox first reported this additional misconduct to Fable on November 3, 2017, and then to Hutchinson sometime later that month. Id. ¶¶ 65-66; Graff Decl., Ex. 26. Hutchinson investigated Fox's report and concluded that additional back pay was not justified. Pls. 56.1 ¶ 67. Fox disputes whether Hutchinson's investigation was sufficiently thorough to uncover any wrongdoing. Id.

In November 2017, New York City's Fair Workweek legislation went into effect. Id. ¶ 68. In response, Starbucks created the Senior Compliance Specialist role, which was filled by Tina McDonald. Id. ¶¶ 68-70. McDonald monitored Starbucks's Fair Workweek compliance by providing training and auditing stores. Id. ¶ 71-72. She reported to Rachel Kelly, the Director of Partner Resources in New York City. Id. ¶ 69. The Fair Workweek requirements are overseen and enforced by the New York City Department of Consumer Affairs (“DCA”).

On January 10, 2018, Fox received a complaint from the DCA alleging a Fair Workweek violation in his store. Id. ¶ 73. The complaint, filed by one of Fox's employees, alleged that hours were improperly reduced, that work schedules were missing, and that schedules were not posted with adequate notice. Id. ¶ 74. Fox sent a copy of the DCA complaint to Hutchinson, who, in turn, forwarded the complaint to McDonald and Partner Resources Manager Bradley Jennison. Id. ¶ 82.^[3] Kelly directed McDonald and Jennison to visit Fox's store to assess Fox's Fair Workweek compliance. Id. ¶ 83-84. McDonald visited Fox's store at least twice to investigate the DCA complaint. Id. ¶ 87. At the first visit on January 11, 2018, McDonald concluded that Fox had not complied with the Fair Workweek law because he had not posted work schedules with adequate noticed and he, not an employee, had filled out the schedule change log. Id. ¶¶ 88-89. During this first visit, Fox told McDonald that pest strips were being used at other store locations. Id. ¶¶ 90. McDonald told Fox to speak to his District Manager, Hutchinson, about this report, which Fox did not do. Id.^[4]

McDonald visited Fox's store a second time a week or two later. Id. ¶ 92. At that visit, McDonald concluded that employees were owed predictability pay for late schedule postings. Id. ¶¶ 93-94. The parties dispute whether McDonald also found that Fox had disregarded requests for shifts from Starbucks employees at other stores in violation of the Fair Workweek law. Id. ¶ 94.^[5] Starbucks concluded that it owed employees at Fox's store several thousand dollars in wages arising from Fox's noncompliance with the Fair Workweek law. Id. ¶ 95. Fox contests the accuracy and thoroughness of McDonald's investigation that led to this conclusion. Id.

After McDonald completed her investigation, McDonald, Jennison, Kelly, and Ruffin attended a meeting to discuss McDonald's findings. Id. ¶ 96. McDonald stated at this meeting that while other stores in Fox's district were out of compliance with the Fair Workweek law, the violations at Fox's store were the most pervasive and severe of the four stores discussed. Id. ¶ 97. Ruffin then...