18th Annual Workplace Class Action Report - 2022 Edition

658 Annual Workplace Class Action Litigation Report: 2022 Edition economy, convenience, fairness, and comity support dismissal of Plaintiffs’ remaining state law claims.” Id. at *28. Finally, regarding the requests for declaratory relief, Plaintiffs contended that § 230 of the CDA immunized entities from constitutional violations, thereby making the statute itself unconstitutional. Id. at *31. However, the Court determined that Plaintiffs’ argument failed because this request for relief depended on Plaintiffs’ First Amendment claims, which were dismissed. The Court also noted that requests for declaratory judgment could not be used to anticipate and defeat an affirmative defense. Therefore, the Court granted Defendants’ motion to dismiss, but allowed Plaintiffs an opportunity to amend their false advertising and state law claims. Frith, et al. v. Whole Foods Market, Inc., 2021 U.S. Dist. LEXIS 22173 (D. Mass. Feb. 5, 2021). Plaintiffs brought a putative class action alleging that Defendants violated Title VII of the Civil Rights Act of 1964, ("Title VII") by discriminating and retaliating against employees for wearing Black Lives Matter ("BLM") masks and other related attire. Defendants’ Amazon and Whole Foods moved to dismiss pursuant to Rule 12(b)(6). The Court granted Amazon’s motion in its entirety and Whole Foods’ motion in part. Whole Foods argued that Plaintiffs: (i) were barred from pursuing their Title VII claims because they failed to exhaust their administrative remedies with the EEOC; (ii) failed to state a discrimination claim because they did not allege that Whole Foods disciplined or discharged any employees because of their race or applied the disciplinary policies differently based on any employee’s race; and (iii) failed to state a retaliation claim because they had not identified an actionable protected activity. In response, Plaintiffs asserted that by selectively enforcing disciplinary policies to target and suppress BLM messaging, Whole Foods discriminated against black employees, and other employees associating with and advocating for black employees in violation of Title VII. Additionally, Plaintiffs maintained that Whole Foods retaliated against employees for continuing to wear BLM apparel and otherwise protesting, which constituted protected activity. Whole Foods asserted that Plaintiffs’ failure to allege that Whole Foods took any particular action specifically because of the race of any particular employee was fatal to their discrimination claim. Whole Foods also argued that protesting was directed at a broad social injustice, not Whole Foods’ enforcement of disciplinary policies, and, therefore was not a protected activity. Amazon largely echoed Whole Foods’ arguments. At the outset, the Court determined that although it could dismiss the complaint as to Plaintiffs who had not yet received a "right to sue" letter and permit them to amend once they have received one, but in the interest of efficiency, it would waive the administrative exhaustion requirement and adjudicate Defendants’ motions to dismiss on the merits. Because no Plaintiff had alleged that he or she was discriminated against on account of his or her race or that he or she was discriminated against for advocating on behalf of a co-worker who had been subject to discrimination, the Court held that all Plaintiffs failed to state a claim for discrimination under Title VII. The Court therefore dismissed the Title VII claims. As to the retaliation claims, the Court granted Defendants’ motions to dismiss except as to Plaintiff Kinzer who alleged that she was fired from Whole Foods an hour after informing management that she had filed charges with the EEOC and NLRB. As to the remaining Plaintiffs, the Court determined that wearing BLM attire to protest racism and police violence and to show support for black employees could not support a Title VII retaliation claim because it was not done to oppose any practice made an unlawful employment practice under Title VII. For these reasons, the Court granted Amazon’s motion to dismiss in its entirety and Whole Foods’ motion in part. Garrett-Alfred, et al. v. Facebook, Inc., 2021 U.S. Dist. LEXIS 92223 (M.D. Fla. May 14, 2021). Plaintiffs, a group of content moderators, brought a four count class action complaint on behalf of themselves and other similarly-situated residents of Florida and Arizona who worked as content moderators for Defendant Cognizant Technology Solutions U.S. Corporation where they performed content moderation services for Defendant Facebook, Inc. Plaintiffs alleged that Defendants concealed from employees the danger of viewing graphic images and failed to provide counseling services to employees to deal with those dangers. Further, Plaintiffs maintained that Defendants demanded content moderators sign non-disclosure agreements (“NDAs”), which prohibited them from speaking about the content that they viewed. Defendants moved to dismiss the complaint, and the Court granted Defendants’ motion in its entirety. First, Defendants moved to dismiss for lack of personal jurisdiction with regard to the Arizona Plaintiffs’ claims on the basis that Plaintiffs failed to establish that the Court had personal jurisdiction over them. Defendants’ Florida contacts were the operation of the Tampa content moderation site. As such, the Court found that the Arizona Plaintiffs’ claims were not sufficiently related to the operation of the Tampa content moderation site, so an exercise of jurisdiction over Defendants with respect to the Arizona Plaintiffs’ claims would violate the due process clause of the Fourteenth Amendment, and therefore it granted Defendants’ motions to dismiss for lack of personal jurisdiction over the Arizona Plaintiffs’