Fujishige v. Amazon.com Services LLC

Background

Amy Fujishige brought a proposed sex-discrimination class action against Amazon.com Services LLC. She alleged that Amazon’s fulfillment-center productivity and safety policies had a disparate impact on female employees. A disparate-impact claim challenges a facially neutral employment practice that allegedly produces disproportionately harmful results for a protected group, without requiring proof that the employer intended to discriminate.

Fujishige worked for Amazon at its Sacramento, California fulfillment center for about ten months beginning in September 2020 as a picker and counter. She alleged that, because she is five feet tall, she could not reach items at the top of Amazon’s storage pods without help or without violating Amazon’s safety rules. She alleged that using a stepladder and waiting for a Process Assistant took additional time, lowering her units-per-hour measurement and increasing her time-off-task measurement. She alleged that she received six written warnings and was terminated on July 8, 2021.

The First Amended Complaint asserted four causes of action: sex discrimination under California’s Fair Employment and Housing Act; failure to prevent sex discrimination under that law; unfair competition under California law; and sex discrimination under Title VII of the Civil Rights Act. The discrimination claims were based on disparate impact. Fujishige sought to represent proposed classes of female Amazon warehouse employees who worked with storage pods and were subject to Amazon’s Quality and Productivity Performance Policy.

Motion and legal standard

Amazon moved to dismiss or strike the First Amended Complaint under Rule 12(b)(6), which tests whether a complaint alleges enough facts to state a legally plausible claim. Amazon argued that Fujishige had not isolated a specific employment practice responsible for the alleged disparity and had not adequately pleaded causation. Amazon also challenged the class allegations.

The court generally accepted factual allegations for purposes of the motion but did not accept legal conclusions or unsupported inferences. The court also stated that a complaint dismissed under Rule 12(b)(6) ordinarily should be amended if additional facts could potentially cure the pleading problems.

Judicial notice

Amazon asked the court to take judicial notice of an order in a separate Amazon litigation. Judicial notice permits a court to recognize certain facts or public records whose authenticity or accuracy is not reasonably disputable. Because the request concerned a publicly filed court order that could be readily verified, the court granted Amazon’s request.

Disparate-impact claims

The court held that Fujishige had not adequately identified a specific employment practice. A disparate-impact plaintiff generally must identify the particular policy or practice causing the alleged disparity, rather than challenge an employer’s overall decision-making process or a broad collection of policies.

Fujishige identified Amazon’s “Productivity Policy” as the challenged practice. But, as described in the complaint, that policy covered an open-ended range of positions and relied on an unspecified number of factors that could vary by item, region, and other measures. The policy included units-per-hour requirements, time-off-task measurements, rankings, disciplinary practices, and undisclosed factors used to calculate productivity scores. The court found that an employee could fall into the bottom five percent for any of those reasons, making it unclear when or why the policy allegedly harmed an employee.

The court also held that Fujishige had not adequately pleaded causation. A disparate-impact claim requires facts supporting a reasonable inference that the challenged practice caused a significant disparity between the protected and comparison groups. Fujishige did not provide statistical evidence, although the court noted that statistics were not necessarily required at the pleading stage. Her allegations that she observed female coworkers being written up, and that most employees she noticed being written up were women, were based on her experience at one warehouse over about ten months. The court found those observations insufficient, given the size of the proposed classes and the many possible reasons for discipline, including time-off-task measurements or other unknown productivity factors.

The court also found that the causation theory appeared to require comparisons among employees working in different warehouses, under different conditions, and performing different tasks. It concluded that the complaint lacked facts supporting a plausible inference that a disparity between male and female warehouse workers existed and was caused by Amazon’s Productivity Policy.

Related claims and class allegations

The parties agreed that Fujishige’s claim for failure to prevent discrimination and her unfair-competition claim depended on the viability of her FEHA discrimination claim. Because the court found the disparate-impact claim insufficiently pleaded, it held that those two claims failed as well.

Amazon also argued that Fujishige had not shown that she was similarly situated to all proposed class members. The court did not reach that issue because it had dismissed all claims in the case.

Disposition

The court granted Amazon’s motion to dismiss with leave to amend. It ordered that any amended complaint be filed by February 29, 2024. The opinion does not state that the dismissal was with or without prejudice.