Thomas v. Amazon.com
| Decision Date | 11 April 2022 |
| Docket Number | 21-cv-1325 (BMC) |
| Parties | MICHAEL THOMAS, ROMELO RIVERA, and VERNIECE CARMONA, Individually and on behalf of all other persons similarly situated, Plaintiff, v. AMAZON.COM, INC., Defendants. |
| Court | U.S. District Court — Eastern District of New York |
The City of New York has enacted a law prohibiting employers from testing prospective employees for marijuana use, based on the view that marijuana use should not disqualify a prospective employee. There are exceptions to the law, generally based on safety concerns relevant to the particular position for which the prospective employee is applying. Amazon withdrew its offer to hire the three plaintiffs in this case after they tested positive for marijuana, contending that the position for which they applied falls within the exceptions to the law. I agree, and therefore grant Amazon's motion to dismiss.
Plaintiffs Verniece Carmona and Michael Thomas did not have any prior experience working for Amazon and applied to be warehouse workers, referred to by Amazon as “Sortation Associates, ” in October and November 2020 respectively. According to the job description, Sortation Associates “work around moving machines, ” “are on the move for their whole shift, ” “load conveyor belts, ” need to be able to “lift up to 49 pounds” and “use carts dollies, hand trucks, forklifts, order pickers, and other gear to move stuff around.”
Both applicants were interviewed and given offers of employment contingent on their ability to pass a drug screening test conducted by a third party. Amazon policy requires all prospective employees to pass that screening. Both Carmona and Thomas failed the drug test and had their conditional offers of employment revoked.
Plaintiff Romelo Rivera had previously worked for Amazon as a Seasonal Sortation Associate from October 2020 to January 2021. During this period, he used Amazon's conveyor belts but did not operate any other heavy equipment. After this job concluded Rivera applied for a full time Sortation Associate position through Amazon's online portal. Like the other plaintiffs in this case, Rivera received a conditional offer that was subsequently rescinded after he too failed a drug test administered by a third party.
After Amazon revoked their conditional offers, plaintiffs brought this single-claim, putative class action alleging Amazon's policy violated N.Y.C. Admin. Code § 8-107(31), with federal jurisdiction based on the Class Action Fairness Act, 28 U.S.C. §§ 1711-1715 et seq. The New York City provision, found within the New York City Human Rights Law, makes it an unlawful discriminatory practice “to require a prospective employee to submit to testing for the presence of any tetrahydrocannabinols or marijuana in such prospective employee's system as a condition of employment.”
Amazon argues that its action was lawful because its policy falls within two exceptions to Section 8-107(31)(a). These are outlined in 47 R.C.N.Y. § 2-07(a)(2) and (6). The exceptions state that an employer can require employees to pass a pre-employment screening for marijuana or tetrahydrocannabinols if “[t]he position requires that an employee regularly operate heavy machinery, ” 47 R.C.N.Y. § 2-07(a)(2), or an “[i]mpairment [caused by marijuana use] would interfere with the employee's ability to take adequate care in the carrying out of his or her job duties and would pose an immediate risk of death or serious physical harm to the employee or to other people, ” 47 R.C.N.Y. § 2-07(a)(6).
In a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, the Court “must accept as true the factual allegations in the complaint, and draw all reasonable inferences in favor of the plaintiff.” Bolt Elec., Inc. v. City of New York, 53 F.3d 465 469 (2d Cir. 1995) (citations omitted). A court's review of a motion to dismiss is limited and “the issue is not whether a plaintiff will ultimately prevail but whether the claimant['s] allegation entitles him] to offer evidence to support the claims.” Bernheim v. Litt, 79 F.3d 318, 321 (2d Cir. 1996). Courts must consider the complaint in its entirety, together with documents incorporated into the complaint by reference, and matters of which a court may take judicial notice. See 5B Wright & Miller, Federal Practice and Procedure § 1357 (3d ed. 2008).
Here, even after all of plaintiffs' allegations are accepted as true and all reasonable inferences drawn in their favor, see Staehr v. Hartford Fin. Sevs. Grp., Inc., 547 F.3d 406, 424 (2d Cir. 2008), this case cannot survive Amazon's motion to dismiss because the conveyor belts used by Amazon Sortation Associates qualify as heavy machinery and the Sortation Associate's job is exactly the type contemplated by the catch-all exception in Section 2-07(a)(6).
Section 2-07(a) permits drug testing prospective employees for jobs that “require” the “regular” operation of heavy machinery or where “impairment would interfere with the employee's . . . job duties and would pose an immediate risk of death or serious physical harm to the employee or [ ] other people.” By definition, “regularly” “required” responsibilities or “job duties” are “fundamental” to an occupation and not merely “marginal.” Stone v. City of Mount Vernon, 118 F.3d 92, 97 (2d Cir. 1997) (citing 29 C.F.R. § 1630.2(n)(1)).
A court determines which functions are essential or fundamental for a job by looking at an employer's written job description, the amount of time an employer spends performing the function, the consequences of not requiring the employee to perform the function, the work experience of past employees in the position, and the current work experience of employees in similar positions. Cf. Sharp v. Abate, 887 F.Supp. 695, 699 (S.D.N.Y. 1995) (). Thus, even though an employer's job description is sometimes the determinative factor in defining an employee's essential or fundamental duties, it is not the only one. See Reville v. Niagara Frontier Transp. Auth., No. 04-cv-258, 2009 WL 5167645, at *8 (W.D.N.Y. Dec. 20, 2009) () (internal citations and quotations omitted).
Given that plaintiffs' claims focus on the nature of a Sortation Associate's responsibilities, the requirement that they be able to operate a forklift and load conveyor belts is incorporated into the complaint by reference. See generally 5B Wright & Miller at § 1357. Amazon identifies two pieces of warehouse equipment it believes constitute “heavy machinery” - forklifts and conveyor belts. It claims that Section 2-07(a)(2) applies because Sortation Associates are required to regularly use these qualifying pieces of equipment.
Section 2-07 was written to create exceptions to Section 8-107(31) based on the potential of a job to significantly impact the health or safety of impaired employees or members of the public. The facts alleged in the complaint and the incorporated sections of the job description demonstrate that both forklifts and conveyor belts qualify as “heavy machinery, ” and although we must assume at this stage of the case, based on the allegations in the complaint, that forklifts are not regularly used by Sortation Associates, conveyor belts are.
Neither party disputes that a forklift is a “heavy machine.” Additionally, the job description for a Sortation Associate explicitly states that an individual in that role needs to “also be able to” use a forklift. However, merely requiring an applicant to “be able to” use a forklift does not demonstrate that Sortation Associates are “regularly” using this qualifying machine.
According to the complaint, plaintiff Rivera worked at Amazon as a Seasonal Sortation Associate from October 2020 to January 2021. During this time, he never operated a forklift. That makes it plausible that although the job designation requires the ability to operate a forklift, the actual performance of the job does not. Accepting plaintiffs' allegation as true and drawing every reasonable inference in plaintiffs' favor compels the conclusion that Amazon's forklift requirement was not an essential function of the Sortation Associate job. For purposes of a Rule 12(b)(6) motion, we must assume that the consequences of not requiring a Sortation Associate to have this skill is unlikely to meaningfully impact his responsibilities. See Abate, 887 F.Supp. at 699.
This same reasoning does not apply to the use of conveyor belts. This is because both sides also agree that conveyor belts are regularly used in the course of a Sortation Associate's work. On this issue, plaintiffs maintain that (1) conveyor belts are not “heavy machinery” as contemplated by Section 2-07(a)(2)'s exception; and (2) even if they did constitute such machines, Sortation Associates do not “operate them” as required to qualify for the exception. I disagree.
New York City law, including Section 2-07(a)(2), does not define “heavy machinery.” Thus, the Court looks to the term's common or general usage to determine if the conveyor belts used by Sortation Associates at the Staten Island facilities are heavy machines for purposes of Section 2-07(a)(2). See generally Order of R. Conductors v. Swan, 329 U.S. 520, 525 (1947).
In the context of construction, farming, and industrial manufacturing, there can be no doubt that conveyor belts qualify as heavy machinery.[1] New York State law...
To continue reading
Request your trial