Whole Foods ‘Agitator’ Axed After BLM Mask Draws Judges’ Eyes

A Whole Foods Market Inc. supervisor’s testimony about disciplinary discretion could save an employee lawsuit alleging the company retaliated against them after they repeatedly refused to take off “Black Lives Matter” face masks, the First Circuit suggested.

Three workers at a Cambridge, Mass., Whole Foods were fired after continuing to wear “Black Lives Matter” masks in spite of Whole Foods’ dress code blocking employees from wearing most clothing with writing on it. One of them was allegedly characterized as an “agitator” by the company’s senior leadership for organizing protests, making speeches, and speaking with the media about company policies.

“The standard of causation here is a very tough standard,” Judge Kermit Lipez told the employees’ attorney at oral argument before the US Court of Appeals for the First Circuit Tuesday. To get a trial, the employees have to prove they would not have been fired but for Whole Foods’ retaliation, Lipez said.

A supervisor’s testimony that the company might have exercised its discretion and not fired one of the plaintiffs for violating the company’s attendance policy had she not been “seen as an agitator” may be enough to clear that bar, the three-judge panel suggested.

While a lower court agreed in January that the workers’ activity was protected, the judge threw the case out because the plaintiffs failed to prove their firings were unlawfully retaliatory.

The widely-watched case will clarify employees’ rights to advocate for civil rights causes in the workplace.

Retaliation or Discipline?

The dispute hinges on whether Whole Foods’ firings over the employee’s dress code violations were justified or retaliation against them.

The employees claim the company discriminated against them and retaliated against them for engaging in activity protected under Title VII of the Civil Rights Act, including filing charges with the Equal Employment Opportunity Commission and the National Labor Relations Board.

“These plaintiffs were not fired for wearing a mask. They were fired for a violation of the attendance policy” after the company sent them home for their dress code violations, said Michael Banks, a partner for Morgan, Lewis & Bockius LLP who represents Whole Foods. The company said in a brief that the dress code violations “were not premised on the particular message on the mask.”

“A jury can decide” whether the employees were fired because of their attendance violations or as retaliation for engaging in protected behavior, said Shannon Liss-Riordan, founding member of Lichten & Liss-Riordan, P.C., who represents the workers.
The workers claim the timing of their firings, which came “within hours or days of informing their managers that they had filed charges with the EEOC or NLRB, or were otherwise pursuing legal action against Whole Foods,” demonstrates the company was retaliating against them.

“I think you’re quite right. The record is clear that there is temporal proximity between the engagement of your clients in protected activity and their termination,” Lipez said. But the lower court may have been acting within its discretion to grant summary judgment in this scenario, Lipez suggested.

Judge William Kayatta also noted that it would “set up this horrible incentive that if you think you’re going to get fired, and at the last second, you make up some charge, then you’re going to get a jury trial” to determine whether your employer retaliated against you.

‘Oppositional Behavior’

Plaintiff Savannah Kinzer, characterized as an “agitator” by Whole Foods, may have a stronger case than the other former employees due to her supervisor’s testimony. Kinzer had racked up many attendance violations after she was sent home for refusing to take off her “Black Lives Matter” mask. On the day she was fired, she said she was late due to a stolen bike tire.

The supervisor’s testimony suggested Whole Foods would typically be more lenient with discipline for an incident outside of an employee’s control.

“That person’s opinion appears to be that there was a possibility they might not fire her but for her oppositional behavior,” which included speaking to the media and seeking legal representation, Kayatta said.

“Why shouldn’t that statement go to a jury?” Lipez asked.

That evidence “doesn’t tell you anything about what the decision makers” on Kinzer’s firing “considered or thought,” Banks said. “It’s merely a statement from someone who was removed from the decision.”

Kinzer v. Whole Foods Mkt, Inc., 1st Cir., No. 22-1064, oral argument 12/5/23.