Warner v. Amazon.com, Inc.

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

ROBERT WARNER, ) CASE NO. 1:21-cv-1885

)

Plaintiff, ) JUDGE BRIDGET M. BRENNAN

)

v. )

) MEMORANDUM OPINION

AMAZON.COM SERVICES, LLC, et al., ) AND ORDER

)

Defendant. )

)

Before this Court is Defendants Amazon, Inc. and Amazon.com Services, LLC’s

(“Amazon”) motion to dismiss pro se Plaintiff Robert Warner’s amended complaint. (Doc. No.

14.) Plaintiff filed a brief in opposition to Amazon’s motion to dismiss his amended complaint

(Doc. No. 24), and Amazon submitted a reply brief in support of its motion (Doc. No. 28). For

the reasons stated herein, this Court GRANTS Amazon’s motion as to Plaintiff’s 18 U.S.C. §

2385, constitutional, and Title VII discrimination claims and DENIES it as to the Title VII

retaliation claim.

I. Background

A. Factual Allegations

Plaintiff is an employee at the Amazon fulfillment center located at 1155 Babbit Road in

Euclid, Ohio (the “Fulfillment Center”). (Amended Complaint, Doc. No. 8 at PageID 67.) On or

about June 16, 2020, employees at the Fulfillment Center were ordered to cease work and remain

silent for eight minutes and 46 seconds, which represents the amount of time that Minneapolis

Police Officer Derek Chauvin knelt on George Floyd’s neck. (Id. at PageID 68.) Plaintiff

objected. (Id.)

According to the complaint, Plaintiff is an atheist who believes that there is good, evil,

right, and wrong. (Id. at PageID 65.) And he viewed the protests surrounding George Floyd’s

death as a racist, quasi-religious force of evil that encouraged violence against brave and

innocent police officers. (Id. at PageID 67-68, 71.) Ultimately, Plaintiff believed these protests

posed an existential threat to state governments. (Id. at PageID 67.)

Because of these views, Plaintiff characterized the Fulfillment Center’s moment of

silence as forcing him to adopt the anti-police ideology of the larger George Floyd protests and

“worship a dead man for no reason except for the color of his skin.” (Id. at PageID 68.) The

complaint indicates that Plaintiff ignored this order and continued to work and make noise, but

his supervisor quickly ordered him to stop working and remain quiet. (Id.)

Soon after this moment of silence, Plaintiff’s African American supervisor transferred

him from the “Pack Flow” department to the “Pack Singles” department. (Id.) Plaintiff alleges

that the position in the Pack Singles department is less desirable because it requires more – and

what he deems as unnecessary – strenuous physical labor, such as extending his arms while

holding heavy packages. (Id. at PageID 68-69.) Ultimately, Plaintiff claims that this increased

physical demand has caused him to develop back pain. (Id.)

Plaintiff filed a charge against Amazon with the Equal Employment Opportunity

Commission (the “EEOC”) in response to this transfer. (Id. at PageID 69.) Shortly after filing

the EEOC charge, Plaintiff was transferred back to the Pack Flow department. (Id.) But

occasionally, Plaintiff is still required to work shifts with the Pack Singles department. (Id.) His

supervisors informed him that he is subject to these transfers because he is one of the few people

in Pack Flow who Amazon has cross-trained to work Pack Singles. (Id.) Plaintiff has and

continues to express his objections to the legality of these transfers. (Id.) After stating one such

objection – and immediately after or on the same day he requested his right to sue letter from the

EEOC – his shift manager subjected him to written discipline and removed him from the

“Problem Solve” position. (Id. at PageID 69-70.) Plaintiff states that he became a Problem

Solve worker “with the understanding that [he] could change [his] mind if [he] so desired.” (Id.

at PageID 70.)

Plaintiff contends that in holding the moment of silence, Amazon effectively forced its

employees to adopt the anti-white, radical ideas of the larger George Floyd protest movement,

such as the belief that the only way to stop police brutality against black citizens is to defund

police departments. (Id. at PageID 72.) But Plaintiff also asserts that Amazon ordered this

moment of silence to shield the fact that it discriminates against black people. (Id. at PageID

74.) The complaint alleges that the Fulfillment Center’s supervisory staff almost entirely

consists of non-black employees, whereas the low-level employees are all black. (Id.) To

Plaintiff, this discrepancy “can only occur under a blatantly racist scheme.” (Id.)

B. Procedural Background

On October 4, 2021, Plaintiff initiated this action by filing a complaint against Amazon.

(Doc. No. 1.) On February 14, 2022, Amazon answered the complaint and filed a motion to

dismiss for failure to state a claim. (Doc. Nos. 5 & 6.)

In response, Amazon filed an amended complaint (Doc. No. 8), a motion for summary

judgment, a joinder of claims, a 28-day extension to file responsive pleadings, a criminal referral,

and to exclude a future defense (Doc. No. 10), and an opposition brief to Amazon’s motion to

dismiss his original complaint (Doc No. 11). Amazon responded to these documents by filing a

motion to dismiss the amended complaint (Doc. No. 14) and answering the amended complaint

(Doc. No. 15).

On April 6, 2022, Plaintiff opposed Plaintiff’s motion for a criminal referral (Doc. No.

20), a joinder of claims (Doc. No. 21), and to exclude a future defense (Doc. No. 22). On this

day, Amazon also filed a motion to hold the summary judgment motion in abeyance until the

Court ruled on its motion to dismiss the amended complaint. (Doc. No. 23.) Plaintiff objected to

having his motion for summary judgment held in abeyance. (Doc. No. 26.) Thereafter, the

Court denied Amazon’s first motion to dismiss as moot and agreed to hold Plaintiff’s summary

judgment motion in abeyance until it ruled on Amazon’s motion to dismiss the amended

complaint. (Doc. No. 27.)

Plaintiff timely opposed the motion to dismiss the amended complaint (Doc. No. 24), and

Amazon timely filed a reply brief (Doc. No. 28).

Additionally, Plaintiff filed a motion to strike affirmative defenses in Amazon’s answer

to his amended complaint (Doc. No. 25) and a motion to strike Amazon’s reply in support of its

motion to dismiss the amended complaint (Doc. No. 30). Both motions are now fully briefed.

(Doc. Nos. 29, 31, 32 & 33.)

II. Standard of Review

When addressing a motion to dismiss brought under Rule 12(b)(6) of the Federal Rules of

Civil Procedure, the Court must construe the complaint in the light most favorable to the plaintiff

and accept all well-pleaded material allegations in the complaint as true. United States ex rel.

Ibanez v. Bristol-Myers Squibb Co., 874 F.3d 905, 914 (6th Cir. 2017) (setting forth the standard

of review for a motion to dismiss); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The

sufficiency of the complaint is tested against the notice pleading requirement that a complaint

must contain “a short and plain statement of the claim showing that the pleader is entitled to

relief[.]” Fed. R. Civ. P. 8(a)(2). Although this standard is a liberal one, a complaint must still

provide the defendant with “enough facts to state a claim to relief that is plausible on its

face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). Thus, “[t]o survive a motion

to dismiss, a complaint must contain sufficient factual matter, accepted as true,” to state a

plausible claim. Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570).

Facial plausibility means that the complaint contains “factual content that allows the

Court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”

Id. (citing Twombly, 550 U.S. at 556). Such plausibility “is not akin to a ‘probability

requirement,’ but it asks for more than a sheer possibility that a defendant has acted

unlawfully.’” Id. “‘[W]here the well-pleaded facts do not permit the court to infer more than the

mere possibility of misconduct, the complaint has alleged—but it has not ‘show[n]’—‘that the

pleader is entitled to relief.’” Id. at 679 (quoting Fed. R. Civ. P. 8(a)(2)). In such a case, the

plaintiff has not “nudged [his] claims across the line from conceivable to plausible, [and the]

complaint must be dismissed.” Twombly, 550 U.S. at 570; see Iqbal, 566 U.S. at 678.

A complaint need not set down in detail all the particulars of a plaintiff’s

claim. However, “Rule 8 . . . does not unlock the doors of discovery for a plaintiff armed with

nothing more than conclusions.” Iqbal, 566 U.S. at 678 (This standard requires “more than an

unadorned, the-defendant-unlawfully-harmed-me accusation.”). “Bare assertions,” basic

recitations of the elements of the cause of action, or “conclusory” allegations are not entitled to

the assumption of truth and, without more, do not satisfy the Rule 8 notice standard. Id.

“Threadbare recitals of the elements of a cause of action, supported by mere conclusory

statements, do not suffice.” Id. (citing Twombly, 550 U.S. at 555).

Although this Court recognizes that pro se pleadings are to be held to a less stringent

standard than formal pleadings drafted by lawyers, the Court is not required to conjure unpleaded

facts or construct claims against defendants on behalf of a pro se plaintiff. See Bassett v.

National Collegiate Athletic Ass’n, 528 F.3d 426, 437 (6th Cir. 2008). The complaint must give

the defendants fair notice of what the plaintiff’s claim is and the grounds upon which it

rests. Lillard v. Shelby Cty. Bd. of Edn., 76 F.3d 716, 724 (6th Cir. 1996) (citation omitted).

The factual allegations in the pleading must be sufficient to raise the right to relief above

the speculative level on the assumption that all the allegations in the complaint are true. Bell Atl.

Twombly, 550 U.S. at 555. The plaintiff is not required to include detailed factual allegations,

but he or she must provide more than “an unadorned, the defendant unlawfully harmed me

accusation.” Iqbal, 556 U.S. at 678. A pleading that offers legal conclusions or a simple

recitation of the elements of a cause of action will not meet this pleading standard. Id. Finally,

Court is “not bound to accept as true a legal conclusion couched as a factual allegation.”

Papasan v. Allain, 478 U.S. 265, 286 (1986).

III. Analysis

Plaintiff seeks monetary and injunctive relief for Amazon’s violation of his first, fifth,

and fourteenth amendments rights. (Doc. No. 8 at PageID 70, 74-75.) He additionally asserts

that he is entitled to relief because Amazon forced him to violate 18 U.S.C. § 2385. (Id.)

Finally, Plaintiff brings claims under Title VII of the Civil Rights Act of 1964 for racial

discrimination, religious discrimination, retaliation. (Id.)

A. Extraneous Documents

At the outset, the Court must address an issue that appears in Plaintiff’s opposition brief

(Doc. No. 24), Amazon’s reply brief (Doc. No. 28), and Plaintiff’s motion to strike Amazon’s

reply brief (Doc. No. 30). The issue stems from Plaintiff attaching exhibits to his opposition

brief and incorporating by reference the exhibits attached to his summary judgment motion.

(Doc. No. 24-2 at PageID 268.) In its reply brief, Amazon objects to the Court considering these

exhibits because, when ruling on a motion to dismiss, courts can only consider exhibits if they

are referred to in the complaint and are central to the claims therein. (Doc. No. 28 at PageID 302

(citing Basset, 528 F.3d at 430 (6th Cir. 2008).) In his motion to strike Amazon’s reply brief,

Plaintiff contends that the restrictions placed on the types of extraneous material that courts can

consider only apply to motions to dismiss, not oppositions to motions to dismiss. (Doc. No. 30-1

at PageID 322.)

The law on this issue is clear: when a court is presented with a Rule 12(b)(6) motion, it

may only consider material related to the pleadings. See Bassett, 528 F.3d at 430. This rule

applies to motions to dismiss, opposition briefs to motions to dismiss, and reply briefs in support

of motions to dismiss. See id. Documents are considered related to the pleadings only if they are

(a) attached to either the complaint or the defendant’s motion to dismiss, (b) referred to in the

complaint, and (c) central to the plaintiff’s claims. Id. If a Court considers documents outside of

the pleadings, it must convert the motion to dismiss to a summary judgment motion; however,

the court retains discretion to decide if it wants to make such a conversion. Barrett v.

Harrington, 130 F.3d 246, 253 (6th Cir. 1997). The Court finds none of the documents that Mr.

Warner seeks to introduce are related to the pleadings. Further, the Court declines to consider

any documents outside of the pleadings and to ultimately convert Amazon’s motion to dismiss to

a summary judgment motion.

Plaintiff’s reasoning for seeking to have this material considered reveals that he is not

prejudiced by excluding this information. Plaintiff attached various documents to his opposition

brief to establish that he is an employee of one of the named-Defendants, Amazon.com, Inc.

(Doc. No. 24-2 at PageID 228-75.) But Amazon has conceded that he is an employee of the

other named Defendant, Amazon Services, LLC and, accordingly, has not attempted to dismiss

the case for failure to name a proper party. (Doc. No. 28 at PageID 302 n.2.) Nor has Amazon

even asked to dismiss Amazon, Inc. from the case. Thus, at this stage, this information is

irrelevant. Similarly, Plaintiff provides communications between him and the Fulfillment Center

management, proving he was and continues to be transferred. (Doc. No. 24-2 at PageID 268.)

However, the Court need not review these documents to consider the alleged transfers. At this

stage in the litigation, the Court must take all Plaintiff’s allegations as true, including his

transfer(s) to the Pack Singles department. (Doc. No. 8 at PageID 68.) Iqbal, 556 U.S. at 678.

B. 18 U.S.C. § 2385

Plaintiff asserts that by requiring its employees to observe a moment of silence to honor

George Floyd, Amazon violated 18 U.S.C. § 2385, a statute that criminalizes certain conduct

aimed at overthrowing the United States Government. (Doc. No. 8 at PageID 72.) This statute

provides that:

Whoever knowingly or willfully advocates, abets, advises, or teaches the duty,

necessity, desirability, or propriety of overthrowing or destroying the

government of the United States or the government of any State, Territory,

District or Possession thereof, or the government of any political subdivision

therein, by force or violence, or by the assassination of any officer of any such

government; or

Whoever, with intent to cause the overthrow or destruction of any such

government, prints, publishes, edits, issues, circulates, sells, distributes, or

publicly displays any written or printed matter advocating, advising, or teaching

the duty, necessity, desirability, or propriety of overthrowing or destroying any

government in the United States by force or violence, or attempts to do so; or

Whoever organizes or helps or attempts to organize any society, group, or

assembly of persons who teach, advocate, or encourage the overthrow or

destruction of any such government by force or violence; or becomes or is a

member of, or affiliates with, any such society, group, or assembly of persons,

knowing the purposes thereof—

Shall be fined under this title or imprisoned not more than twenty years, or both,

and shall be ineligible for employment by the United States or any department

or agency thereof, for the five years next following his conviction.

If two or more persons conspire to commit any offense named in this section,

each shall be fined under this title or imprisoned not more than twenty years, or

both, and shall be ineligible for employment by the United States or any

department or agency thereof, for the five years next following his conviction.

As used in this section, the terms “organizes” and “organize”, with respect to

any society, group, or assembly of persons, include the recruiting of new

members, the forming of new units, and the regrouping or expansion of existing

clubs, classes, and other units of such society, group, or assembly of persons.

18 U.S.C. § 2385.

Amazon seeks to dismiss this claim because 18 U.S.C. § 2385 does not provide private

litigants with a cause of action. See, e.g., Del Elmer; Zachay v. Metzger, 967 F. Supp. 398, 403

(S.D. Cal. 1997) (“Civil causes of action, however, do not generally lie under the criminal

statutes contained in Title 18 of the United States Code.”). In response, Plaintiff argues that the

legislature intended there to be a private cause of action. (Doc. No. 24-2 at PageID 279.)

Specifically, he cites Cort v. Ash, 422 U.S. 66 (1975), which enumerates factors courts are to use

to determine whether the legislature created a private cause of action for a particular statute.

(Id.)

Under Cort, to determine whether the statute contains a private cause of action, courts

must consider: (a) whether the plaintiff is one of the class for whose benefit the statute was

created; (b) whether there is any indication, explicit or implicit, that the legislature intended to

create a private cause of action; (c) whether a private cause of action is consistent with the

underlying purpose of the legislative intent; and (d) whether the cause of action related to one

relegated to state law. 422 U.S. at 78. It is clear from the statute that the legislature enacted this

law to protect government officials from conduct that seeks to undermine them in fulfilling their

duties. 18 U.S.C. § 2385. Nothing in the statute’s text, legislative history, or any prior court

ruling indicates that this statute was enacted to give private citizens, like Plaintiff, a private cause

of action. See Cort, 422 U.S. at 78; Thompson v. Thompson, 484 U.S. 174, 520 (1988) (holding

that the legislative history, context, and language of a federal statute must conclusively show that

Congress intended there to be a private cause of action for courts to determine that a statute

provides a private remedy). Further, other district courts have evaluated this issue and

determined that 18 U.S.C. § 2385 does not provide a private cause of action. Beeson v. South

Carolina, No. CV 2:16-1164-RMG-BM, 2016 WL 4394506, at *3 (D. S.C. July 13, 2016);

Okoro v. Krueger, No. CIV.A. 05-70269, 2007 WL 3333476, at *11 n.7 (E.D. Mich. Sept. 21,

2007).

Accordingly, this claim is dismissed. 1

C. Constitutional Claims

Although Plaintiff does not assert his constitutional claims under 42 U.S.C. § 1983, the

Court construes his complaint as if he does because § 1983 serves as the primary vehicle to

obtain damages for violations of the constitution. Communities for Equity v. Michigan High Sch.

Athletic Ass’n, 459 F.3d 676, 681 (6th Cir. 2006).

“To state a claim under § 1983, a plaintiff must allege the violation of a right secured by

the Constitution and laws of the United States, and must show that the alleged deprivation was

committed by a person acting under the color of state law.” West v. Atkins, 487 U.S. 42, 48

(1988). “The traditional definition of acting under color of state law requires that the defendant

1 To the extent that Plaintiff cited to this statute to have a criminal law enforced, he has also

failed to state a claim because private citizens cannot seek to compel enforcement of federal

criminal laws. Diamond v. Charles, 476 U.S. 54, 64 (1986) (“A private citizen lacks a judicially

cognizable interest in the prosecution or nonprosecution of another.”).

in a § 1983 action have exercised power ‘possessed by virtue of state law and made possible only

because the wrongdoer is clothed with the authority of state law.’” Id. at 49 (quoting United

States v. Classic, 313 U.S. 299, 326 (1941)).

Amazon asserts that Plaintiff’s constitutional claims fails because Amazon is a private

organization and, therefore, cannot act under the color of state law. (Doc. No. 14-1 at PageID

171-72.) In response, Plaintiff reiterates allegations made in the amended complaint and his

summary judgment motion. (Doc. No. 24-2 at PageID 280; Doc. No. 10 at PageID 84.) Namely,

Plaintiff asserts that Amazon is a state actor – and thus operating under the color of state law –

because of its status as an essential business during the COVID-19 pandemic. (Doc. No. 8 at

PageID 73.) More specifically, Plaintiff argues that – because various federal and state public

institutions allowed Amazon to continue its operations while its direct competitors were forced

to shut down – Amazon and the federal and state governments are sufficiently “entwined” to

render Amazon a state actor. (Id.)

The Sixth Circuit has “recognized four tests to determine whether a private party’s

challenged conduct is fairly attributable to the State: (1) the public function test; (2) the state

compulsion test; (3) the symbiotic relationship or nexus test; and (4) the entwinement test.”

Snodgrass-King Pediatric Dental Assocs., P.C. v. DentaQuest USA Ins. Co., Inc., 780 F. App’x

197, 204 (6th Cir. 2019).

Under the entwinement test, the test Plaintiff appears to apply, “the crucial inquiry is

whether the nominally private character of the private entity is overborne by the pervasive

entwinement of public institutions and public officials in its composition and workings such that

there is no substantial reason to claim unfairness in applying constitutional standards to it.” Doe

v. BMG Sports, LLC, No. 1:20-CV-688, 2022 WL 345178, at *9 (S.D. Ohio Feb. 4, 2022)

(cleaned up) (internal quotation marks omitted) (citing Vistein v. Am. Registry of Radiologic

Technologists, 342 F. App’x 113, 129 (6th Cir. 2009) and Brentwood Acad. v. Tenn. Secondary

Sch. Athletic Ass’n, 531 U.S. 288, 298 (2001)). Here, Plaintiff has not alleged facts that – even if

taken as true – lead to the inference that Amazon is a state actor. Under the entwinement test, by

simply allowing a private business to stay open and operate during a pandemic, the government

has not integrated itself with Amazon enough to make Amazon a state actor. Brentwood, 531

U.S. 288 at 298. Notably, the complaint does not allege that government officials are involved in

deciding how Amazon conducts business or controls its workforce; it merely asserts that the

government viewed its services as vital and allowed it to operate on its own terms while other

businesses were ordered to close. (Doc. No. 8 at PageID 73.)

Plaintiff does not appear to allege that Amazon is a state actor under the other three tests.

First, nothing in the complaint indicates that Amazon fulfills a function traditionally fulfilled by

the government. Marie v. Am. Red Cross, 771 F.3d 344, 362 (6th Cir. 2014) (noting that the

public function test requires courts to conduct a historical analysis). Second, under the

compulsion test, Plaintiff has not alleged any facts that show that the state has exercised

influence over Amazon’s decisions through either coercion or encouragement. Reguli v. Guffee,

371 F. App’x 590, 600 (6th Cir. 2010). Third, to prevail on the nexus test, Plaintiff was required

to articulate facts showing that the government was involved enough with Amazon’s decision to

order employees to observe a moment of silence that the decision could be characterized as state

action. Partin v. Davis, 675 F. App’x 575, 585 (6th Cir. 2017). Plaintiff has alleged no such

facts.

Therefore, Plaintiff’s constitutional claims are dismissed.

D. Title VII Discrimination Claim

In Swierkiewicz, the Supreme Court clarified that the plaintiff is not required to plead

specific facts establishing a prima facie case of discrimination under the McDonnell Douglas

framework. Swierkiewicz v. Sorema N. A., 534 U.S. 506, 508 (2002). To survive a motion to

dismiss, the plaintiff need only plead non-conclusory allegations establishing “(1) membership in

the protected class, (2) specific adverse employment taken against [him], and (3) instances in

which [he] was treated less favorably than others not in the protected class.”2 Lee v. Vanderbilt

Univ., No. 3:20-CV-00924, 2022 WL 1094654, at *11 (M.D. Tenn. Apr. 12, 2022) (citing James

v. Hampton, 592 F. App’x 449, 461 (6th Cir. 2015); see Swierkiewicz, 534 U.S. at 514 (holding

that the plaintiff’s complaint met the requirements of Fed. R. Civ. P. 8(a) and 12(b)(6) because it

“detailed the events leading to [plaintiff’s] termination, provided relevant dates, and included the

ages and nationalities of at least some of the relevant persons involved with [the plaintiff’s]

termination); Keys v. Humana, Inc., 684 F.3d 605, 610 (6th Cir. 2012) (reversing a dismissal for

failure to state a claim because plaintiff pleaded she was a member of a protected class, specific

adverse employment actions, and facts indicating that white employees were treated differently).

Amazon asserts that dismissal is appropriate because Plaintiff has not provided facts

indicating that he was discriminated against because of his race or that he faced an adverse

employment action. (Doc. No. 14-1 at PageID 173-74.) In response to Amazon’s first

contention, Plaintiff articulates he has a cause of action for racial and religious discrimination

2 This Court construes Plaintiff’s complaint as if he intends to prove discrimination with

circumstantial evidence. The only fact that he appears to allege as direct evidence is that the

supervisor who transferred him is an African American. (Doc. No. 24-2 at PageID 275.) The

fact that his supervisor is of a different race than him – without more – is not enough to prevail

under the direct evidence method. See Equal Emp. Opportunity Comm’n v. Publix Super

Markets, Inc., 481 F. Supp. 3d 684, 697-98 (M.D. Tenn. 2020).

because he made the non-conclusory allegation that he, as a white man and an atheist, was forced

to recognize George Floyd’s homicide. (Doc. No. 24-2 at PageID 275.)

While perhaps more than a mere conclusory allegation under Twombly or Iqbal,

Plaintiff’s allegation does not lead to an inference that he was discriminated against because of

his race or religion. Under Title VII, it is illegal for an employer to take an adverse employment

action against its employee when the decision to take the action is because of or motivated by the

employee’s membership in a protected class. Bostock v. Clayton Cnty., Georgia, 140 S. Ct.

1731, 1739 (2020) (describing the “but for” causation requirement in standard Title VII

discrimination cases); White v. Baxter Healthcare Corp., 533 F.3d 381, 396-97 (6th Cir. 2008)

(discussing the “motivating factor” standard in “mixed-motive” Title VII cases). In other words,

Plaintiff was required to allege that Amazon made him observe a moment of silence, at least, in

part, because he is a white atheist. He did not do so. Instead, the complaint alleges that all

employees at the Fulfillment Center were ordered to observe the moment of silence. Plaintiff

does not allege that he was singled out. Nor does the complaint allege that Amazon predicated

its transfer of Plaintiff to the Pack Singles department on Plaintiff’s race or religion. In the end,

all Plaintiff alleged is that Amazon required all employees to observe a moment of silence to

commemorate George Floyd’s death, and Amazon disciplined Plaintiff for refusing to participate

in the companywide activity. Title VII does not protect employees from such conduct.3

3 A generous reading of Plaintiff’s opposition brief suggests that he might be asserting that

Amazon subjected its white and non-religious employees to a hostile work environment by

requiring them to support an anti-white racial justice movement with religious undertones. But

Plaintiff also does not allege a plausible hostile work environment. To establish a hostile work

environment claim, the plaintiff must show that “the workplace is permeated with discriminatory

intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of

the victim’s employment and create an abusive working environment.” Harris v. Forklift Sys.,

Inc., 510 U.S. 17, 21 (1993) (internal citations omitted).

Because this Court has determined that Plaintiff has not alleged that Amazon’s transfer

from the Pack Flow department to the Pack Singles department was because of or motivated by

his race or religion, it need not determine whether the transfer was an adverse employment

action. See, e.g., Kocsis v. Multi-Care Mgmt., Inc., 97 F.3d 876, 886 (6th Cir. 1996). Even if it

was, Plaintiff has not alleged a viable Title VII discrimination claim.

Accordingly, Plaintiff’s racial and religious discrimination claims brought under Title VII

are dismissed.

E. Title VII Retaliation Claim

Like with a discrimination claim, at the motion to dismiss stage, the plaintiff need not

fully plead the entire prima facie case of discrimination under McDonnell Douglas. Lee, 2022

WL 1094654, at *14. Instead, the plaintiff must only allege facts that create a plausible

inference of retaliation. To prevail on a retaliation claim, the plaintiff must show (a) he engaged

in a protected activity; (b) the defendant knew of his protected activity; (c) the defendant took an

adverse employment action against him, and (d) a causal connection existed between the

protected activity and the materially adverse action. Taylor v. Geithner, 703 F.3d 328, 336 (6th

Cir. 2013).

i. Plaintiff’s Original, Permanent Transfer to the Pack Singles

Department

Plaintiff has not alleged facts that lead to the inference that Amazon’s original,

permanent transfer of him to the Pack Singles department constituted discrimination under Title

VII. Specifically, before Amazon transferred him to the position permanently, Plaintiff had not

engaged in any activity protected under Title VII. An employee engages in protected activity

when they oppose “any practice made an unlawful employment practice,” which covers not only

the filing of the formal discrimination charges with the EEOC but also complaints to

management and less formal protests of discriminatory employment practices. Ruiz-Fane v.

Tharp, 545 F. Supp. 3d 543, 557 (N.D. Ohio 2021) (citing E.E.O.C. v. New Breed Logistics, 783

F.3d 1057, 1067 (6th Cir. 2015)). Although this is a broad definition, Plaintiff does not provide

any facts indicating that he attempted to make anyone at Amazon aware that he believed the

moment of silence was an unlawful employment practice before he filed the EEOC charge.

Thus, Plaintiff cannot assert that the original transfer to the Pack Singles department was

Amazon’s retaliation against him for engaging in a protected activity.

ii. Plaintiff’s Ongoing Temporary Transfers to the Pack Singles

Department, Written Discipline, and Removal from the Pack Singles

Department

Plaintiff argues that Amazon has retaliated against him for filing the EEOC charge and

protesting what he believes are illegal transfers back to the Pack Singles department by (a)

continuing to transfer him back to the Pack Singles department, (b) subjecting him to

“slanderous and untrue” written discipline, and (c) removing him from the Problem Solve

position. (Doc. No. 8 at PageID 69-70.)

First, Amazon argues that dismissal is appropriate because Plaintiff has failed to allege

that Amazon took any adverse employment action against Plaintiff. (Doc. No. 14-1 at PageID

175-76.) To support its argument, Amazon cites Lee v. Cleveland Clinic Found., 676 F. App’x

488 (6th Cir. 2017) for the proposition that an adverse employment action is narrowly defined

and does not include any employment action taken against Plaintiff. (Doc. No, 14-1 at 176.) But

this case is inapplicable because it defines adverse employment actions in the context of a

discrimination claim, not a retaliation claim. Lee, 676 F. App’x at 494.

In the retaliation context, an adverse employment action is broadly defined as any action

that a reasonable employee might have found materially adverse, which means it might have

dissuaded a reasonable worker from making or supporting a charge of discrimination.

Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006). In other words, it must only

be more than “petty slights, minor annoyances, and simple lack of good manners.” Id. The

Sixth Circuit has described this as a “relatively low bar” to meet. Queen v. City of Bowling

Green, Kentucky, 956 F.3d 893, 904 (6th Cir. 2020). Plaintiff’s complaint asserts facts that meet

this low bar: being removed from a position, facing written discipline, and having to work

physically demanding shifts could all dissuade a reasonable worker from engaging in a protected

activity. See id.

Second, Amazon argues that dismissal is appropriate because Plaintiff has failed to

establish a causal connection between any adverse employment actions that Amazon has taken

against Plaintiff and Plaintiff’s filing of the EEOC charge. This argument fails because it

wrongly assumes that the only protected activity that Plaintiff has engaged in is the filing of the

EEOC charge. Plaintiff asserts that he was kicked out of the Problem Solve position,4 has

repeatedly been transferred to the Pack Singles Department, and faced written disciplined – not

only because he filed an EEOC charge – but also because he has made his objections known to

management that he believes the temporary transfers to the Pack Singles department are illegal.

(Doc. No. 8 at PageID 69-70.) This type of objection is plausibly protected activity under Title

VII because protected activity is “expansive[ly]” defined as encompassing “complaint[s] to

anyone (management, unions, other employees, or newspapers) about allegedly unlawful

practices.” New Breed, 783 F.3d at 1067 (6th Cir. 2015) (quoting Johnson v. Univ. of

4 The complaint provides scant information about the Problem Solve position. Because this

Court is reviewing a pro se Plaintiff’s complaint at the motion to dismiss stage, it must assume,

at a minimum, that this position was something that Plaintiff valued and that he was unhappy

when Amazon removed him from this role.

Cincinnati, 215 F.3d 561, 579, 580 n. 8 (6th Cir. 2000)); see Crawford v. Metro. Gov’t of

Nashville & Davidson Cnty., Tenn., 555 U.S. 271, (2009) (“When an employee communicates to

her employer a belief that the employer has engaged in . . . a form of employment discrimination,

that communication virtually always constitutes the employee’s opposition to the activity.”). 5

And because the discipline, continued transfers, and removal from the Problem Solve position

were alleged to occur immediately after said protests, Plaintiff has adequately established a

plausible causal link.6 Little v. BP Exploration & Oil Co., 265 F.3d 357, 365 (6th Cir. 2001)

(“This Court held that temporal proximity in combination with the evidence of retaliatory

conduct was sufficient to establish a causal connection between the protected activity and the

adverse employment action.”).

In the end, Plaintiff has stated a plausible retaliation claim against Amazon. After

complaining to management about being subjected to what he believes are illegal transfers,

Plaintiff was disciplined and removed from a position. Furthermore, management continues to

transfer Plaintiff to the Pack Singles department when it knows he considers this work to be

physically arduous. These facts, taken as true, plausibly lead to an inference of retaliation.

5 It is black letter law that an employee does not engage in protected conduct when his opposition

to the employer’s alleged conduct includes “violat[ing] legitimate rules and orders of his

employer, disrupt[ing] the employment environment, or interfer[ing] with the attainment of his

employer’s goals.” Booker v. Brown & Williamson Tobacco Co., 879 F.2d 1304, 1312 (6th Cir.

1989). And Plaintiff’s complaint indicates that Amazon disciplined him and removed him from

the Problem Solve position after he objected to his supervisor’s order to work in the Pack Singles

Department. (Doc. No. 8 at PageID 69-70.) Whether these objections crossed the line from

protected opposition conduct to the type of disruptive conduct not covered by Title VII is not an

issue that this Court can decide at this stage in litigation. The same is true for whether Amazon’s

reason for the transfers – that he is one of the few workers cross-trained in the Pack Singles

department – is a legitimate, non-discriminatory reason for Amazon’s actions.

6 Additionally, Plaintiff alleges that he was subject to written discipline and removed from the

Problem Solve position “immediately after or on the same day he requested his right to sue letter

from the EEOC. (Doc. No. 8 at PageID 70.) This allegation also establishes a causal link

between protected activity and adverse actions. See Little, 265 F.3d at 365.

Accordingly, the Court allows the parties to proceed with discovery on the narrow issue of

whether Amazon retaliated against Plaintiff because he protested being transferred to the Pack

Singles department.

IV. Conclusion

For the reasons stated above, this Court GRANTS Amazon’s motion to dismiss as to

Plaintiff’s 18 U.S.C. § 2385, constitutional, and Title VII discrimination claims and DENIES

dismissal of Plaintiffs Title VII retaliation claim. The parties are instructed to follow the

instructions set forth in the contemporaneously filed Case Management Conference Scheduling

Order.

IT IS SO ORDERED. A Ay

BRIDGET M. BRENNAN

Date: June 29, 2022 UNITED STATES DISTRICT JUDGE

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