Fox v. Starbucks Corporation

Background

Rafael Fox sued his former employer, Starbucks Corporation. Fox alleged negligent infliction of emotional distress based on exposure to toxic pesticides. He also alleged that Starbucks terminated him in retaliation for complaining about pesticide use and the alleged underpayment of Starbucks workers, bringing claims under the Fair Labor Standards Act and New York Labor Law.

Paul D’Auria and Jill Shwiner were employees of AVP Termite & Pest Control of New York, Inc., which Starbucks hired to service most of its Manhattan locations. D’Auria was alleged to have been the pest-control technician primarily responsible for the Starbucks account. Shwiner was alleged to have been AVP’s director of operations, with duties that included training Starbucks managers, identifying pest-management deficiencies, recommending corrective action, and sometimes addressing urgent pest-control matters.

D’Auria and Shwiner alleged that they were repeatedly exposed to hazardous pesticides while servicing Starbucks locations, particularly a product called Hot Shot No-Pest 2, or No-Pest Strips, which allegedly released dichlorvos vapor. They alleged that Starbucks personnel routinely placed the strips in stores, that the exposure endangered their health, and that their resulting fear caused emotional distress. They also alleged that they warned Starbucks about the use of the strips without an adequate response. The complaint stated that some warnings were forwarded to Starbucks managers, including Fox, and that Fox’s concerns were dismissed by a Starbucks compliance specialist.

Motion to dismiss

Starbucks moved under Federal Rule of Civil Procedure 12(b)(6), which tests whether a complaint states a legally sufficient claim. Starbucks argued that all three negligent-infliction-of-emotional-distress claims should be dismissed. In the alternative, it sought to separate D’Auria’s and Shwiner’s claims from Fox’s claims.

Fox’s claim

Starbucks argued that Fox’s negligent-infliction-of-emotional-distress claim was barred by New York’s workers’ compensation statute. Fox stated that he did not oppose this part of Starbucks’s motion. The court therefore treated the claim as abandoned and dismissed it with prejudice.

D’Auria’s and Shwiner’s claims

Under New York law, a negligent-infliction-of-emotional-distress claim requires an alleged breach of a duty of care that directly caused emotional harm. The claim also must include facts providing a guarantee that the emotional harm is genuine, which can be shown when the alleged breach endangered the plaintiff’s physical safety or caused fear for that safety.

Starbucks argued that it owed D’Auria and Shwiner no duty of care because their work involved correcting improper pesticide use. The court rejected dismissal at this stage. It found that the complaint did not clearly allege that eliminating the hazards created by Starbucks’s own pesticide practices was part of their duties. The allegations could instead refer to addressing pests and conditions that caused pests. The court also found it plausible that the hazardous exposure alleged in the complaint was not inherent in their work.

Starbucks separately argued that it exercised reasonable care by prohibiting suppliers and vendors from using dichlorvos and forwarding the contractors’ warnings to store personnel. The court found that the complaint plausibly alleged that Starbucks may have needed to take additional corrective action, given the alleged repeated and hazardous pesticide use. The allegation that Fox’s concerns were dismissed also suggested, at the pleading stage, that Starbucks personnel may have received mixed messages about pesticide use.

Finally, Starbucks argued that D’Auria and Shwiner lacked a sufficient guarantee that their emotional distress was genuine. The court found it plausible that repeated exposure to allegedly hazardous pesticides caused them to fear for their physical safety and suffer emotional distress. It also rejected Starbucks’s argument that their continued work at Starbucks locations made their alleged fears implausible, noting that people may remain in jobs despite dangerous conditions for economic or personal reasons.

The court therefore denied Starbucks’s motion to dismiss D’Auria’s and Shwiner’s negligent-infliction-of-emotional-distress claims.

Motion to sever

Starbucks asked the court to sever, or separate, D’Auria’s and Shwiner’s claims from Fox’s. The court considered whether the claims arose from the same transaction or series of events, whether they involved common factual or legal questions, whether keeping them together would promote efficient discovery, and whether a joint trial could cause prejudice or confusion.

The court found that the pesticide-related claims were logically related because D’Auria’s and Shwiner’s alleged emotional harm and Fox’s pesticide-related retaliation claim arose from Starbucks’s alleged pesticide practices. The claims also could involve overlapping evidence about complaints concerning pesticide use and Starbucks’s responses. Keeping the claims together would promote efficiency during discovery.

The court recognized possible prejudice and confusion at trial because the alleged harm to D’Auria and Shwiner could affect the evaluation of Fox’s retaliation claim, and because Fox’s separate wage-underpayment retaliation claim was unrelated to pesticides. It nevertheless concluded that severance was not warranted at that early stage. The motion to sever was denied with leave to renew in advance of trial.

Disposition

The court granted Starbucks’s motion to dismiss as to Fox’s negligent-infliction-of-emotional-distress claim and denied it as to D’Auria’s and Shwiner’s claims. It denied Starbucks’s motion to sever with leave to renew in advance of trial. The opinion does not state a ruling on the merits of Fox’s Fair Labor Standards Act or New York Labor Law retaliation claims.