A federal judge has tossed the retaliation claims of three remaining plaintiffs suing Whole Foods for allegedly discriminating against employees who supported the right to wear Black Lives Matter facial masks in the workplace.
Plaintiffs Savannah Kinzer, Haley Evans and Christopher Michno alleged that Whole Foods violated Title VII’s anti-retaliation provision by terminating them for opposing Whole Foods’ disciplining of employees wearing Black Lives Matter masks at work.
“When viewed as a whole, there is little evidence in the record to refute Whole Foods’ legitimate business explanations for its strict enforcement of its dress code policy against the wearing of Black Lives Matter masks and its termination of Plaintiffs as a result, however unwise they might have been,” wrote U.S. District Court Judge Allison D. Burroughs in her decision granting Whole Foods’ motion for summary judgment.
In concluding that no factfinder could reasonably conclude that Whole Foods would not have disciplined and terminated plaintiffs were it not for their protected activities, the judge further found “no significant probative evidence that Whole Foods’ stated reasons for its actions concealed any discriminatory animus based on Plaintiffs’ oppositional conduct.”
In a February 2021 decision, Burroughs had granted Whole Foods’ motion for summary judgment in a putative class action alleging the grocery chain discriminated and retaliated against employees for wearing face masks and other attire with BLM messaging to work.
The judge concluded in that decision that the Title VII claims should be dismissed because (1) the employer’s allegedly inconsistent enforcement of its dress code did not constitute race-based discrimination; and (2) Title VII does not protect free speech in a private workplace.
However, she allowed Kinzer’s retaliation claim to go forward, finding that the plaintiff had alleged facts sufficient to “plausibly infer that her termination was causally linked to protected activity.”
The 1st Circuit affirmed Burroughs’ decision, albeit on other grounds. In a decision released in June 2022, the panel recognized “associational” discrimination claims under Title VII. Under the theory of associational discrimination, an employer faces liability by taking an adverse employment action against an employee because the employer disapproves of their relationship with a third party on the basis of a protected characteristic, such as race.
However, the panel affirmed Burroughs’ dismissal of discrimination and retaliation counts because the evidence supported a nondiscriminatory reason for Whole Foods’ enforcement of the dress code against the wearing of BLM masks: prohibiting the mass display of a controversial message in its stores by its employees.
“In this case, appellants’ allegations simply do not support a plausible inference that Whole Foods’ prohibition on employees’ displaying the Black Lives Matter message in their stores was a pretext for racially discriminating against the individual employees,” Circuit Judge Kermit V. Lipez wrote for the panel.
Meanwhile, in the lower court, new plaintiffs Evans and Michner joined Kinzer in pressing retaliation claims against Whole Foods.
But Burroughs concluded that the three plaintiffs could not show that Whole Foods deviated from workplace policy for discriminatory reasons.
“On top of the novelty of the pandemic, the company was confronted with a coordinated display of dress code violations tied to what it perceived to be a political movement or controversial message — distinct from the typical, discrete employee infractions it had seen in the past,” the judge wrote. “The record, at most, reflects a series of arguably ill-advised business decisions by Whole Foods in light of Plaintiffs’ dress code violations and the message they sought to display, but it is not one from which a jury could conclude that Whole Foods’ legitimate reasons for firing them were ‘shams’ concocted to punish them for protesting its strict enforcement of the dress code.”