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Fired worker can sue for retaliation over BLM masks

A federal appeals court has revived a former Whole Foods employee’s claim that she was unlawfully terminated in retaliation for protected oppositional behavior when she repeatedly disobeyed and protested the company’s ban on “Black Lives Matter” face masks.

Whole Foods has a dress code prohibiting clothing that bears messages or brands not affiliated with the company.

Plaintiff Savannah Kinzer, who worked at a Cambridge, Massachusetts Whole Foods and claims the dress code was applied in a discriminatory manner with respect to BLM masks, racked up “attendance points” each time she was sent home for refusing to stop wearing the mask.

Kinzer also organized protests outside the store and criticized the company and its policies on social media.

The final disciplinary point that triggered the plaintiff’s filing occurred when she allegedly could not get to work because her bicycle tire was stolen. When Kinzer was terminated despite the policy’s allowance for leniency in the event of transportation breakdowns, she sued the chain as part of a nationwide class action.

A U.S. District Court judge granted summary judgment to Whole Foods, finding no evidence that the firing was discriminatory.

But the 1st U.S. Circuit Court of appeals disagreed and reversed the lower court decision.

“[T]here is a genuine dispute as to whether Kinzer’s final attendance point was imposed pursuant to the normal application of Whole Foods’ time and attendance policy within the framework of its progressive disciplinary system, or whether Whole Foods assessed that point and terminated Kinzer because of her protected conduct,” Senior Judge Kermit V. Lipez wrote for the panel.

However, the court declined to rule on Kinzer’s interlocutory appeal of a discovery order that she produce certain group chats with co-workers. The question remains open as to whether communications with coworkers are privileged under the National Labor Relations Act when requested in civil litigation.

For employers, the decision makes clear that employers who adopt progressive discipline policies must be sure to comply with and enforce those policies.

Employers should also take care to ensure that their policies don’t allow individual decisionmakers or managers to enforce such policies in a selective manner.