By Dave Simpson

Law360 (March 8, 2021, 9:38 PM EST ) Amazon told a New York federal court that a former warehouse worker's proposed discrimination class action alleging its response to COVID-19 endangered workers of color should be tossed because the complaint shows the online retail giant treated white and minority workers the same way.

On Friday, Amazon asked the court to dismiss the suit from Christian Smalls, who has become one of the faces of the protest movement against Amazon, because he does not plausibly allege that race was the "but for" cause of the policies he's challenging.

Smalls has made the argument that Amazon treated line workers differently than managers when providing protections against the COVID-19 outbreak, and further argued that managers were disproportionately white.

"But plaintiff concedes that some 'line workers' were Caucasian and that some 'managers' were minorities," Amazon said. "Indeed, plaintiff characterizes himself as a racial minority who served as 'management.' Thus, by plaintiff's own admission, minority 'line workers' were not 'treated differently than similarly situated white [line workers].'"

For this reason, it argues, Smalls fails to allege intentional racial discrimination.

In his November complaint, Smalls says that the company failed to provide personal protective equipment to its predominantly Black and Latino workers, subjecting them to inferior conditions compared to its predominantly white managerial workers.

Smalls, who worked at an Amazon fulfillment center on Staten Island, led protests in the earliest days of the U.S. outbreak after, he says, Amazon failed to provide workers with the proper gear and put in place a murky policy for workers exposed to, or experiencing symptoms of, the virus.

His complaint makes references to an alleged memo sent from Amazon's General Counsel David Zapolsky to CEO Jeff Bezos, referring to Smalls as "not smart or articulate" and suggesting that he should be made the face of the protest movement because he would be an easy target to beat.

Smalls, who was an assistant manager in the center's outbound department, told Law360 in March 2020 that he began planning a protest after an associate working under him showed up to her shift looking "horrible." Amazon had recently given paid leave to workers who test positive for COVID-19 or are quarantined, but workers who felt sick without a diagnosis were forced to choose between a paycheck and their colleagues' health, he said.

The worker told Smalls she was tested for the virus but had yet not gotten a diagnosis, so he sent her home. The next day, her test came back positive. Several more Staten Island workers were diagnosed in the days that followed, but Amazon largely kept workers in the dark about the spread in the facility, Smalls said.

Smalls, who was quarantined with pay, helped to organize protests in response to the pandemic. He was later fired, the suit claims.

On Friday, Amazon said that Smalls' class claims should also be dismissed because he is no longer employed at the company and so lacks standing to challenge policies that don't apply to him.

In addition to his class claims, Smalls argues that his termination was retaliatory and racially discriminatory. But on Friday, Amazon sought dismissal of these claims as well.

"None of the allegations in the amended complaint allows a plausible inference that his employment was terminated because he engaged in any protected activity or because of his race," it said.

Smalls is represented by Michael H. Sussman of Sussman & Watkins and Tricia CK Hoffler of the CK Hoffler Firm.

Amazon is represented by Jason C. Schwartz, Mylan L. Denerstein,Gabrielle Levin, and Zainab N. Ahmad of Gibson, Dunn & Crutcher LLP.

The case is Smalls et al v. Amazon Inc., case number 1:20-cv-05492, in the U.S. District court for the Eastern District of New York.

--Editing by Rebecca Flanagan.

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