517 F.Supp.3d 60
D. Mass.2021Background
- Twenty-eight named plaintiffs (Whole Foods employees and one Amazon Prime Shopper) sued Whole Foods and Amazon alleging Title VII discrimination and retaliation for disciplining employees who wore Black Lives Matter (BLM) masks or apparel during the COVID-19 mask mandate.
- Whole Foods’ company dress code prohibited non–Whole Foods slogans; plaintiffs allege the Policy was enforced selectively against BLM messaging across multiple stores (employees sent home without pay, assigned disciplinary "points," and one plaintiff, Kinzer, was terminated).
- Plaintiffs claim the discipline suppressed advocacy for Black employees and sought individual and class relief; some plaintiffs filed EEOC charges and several received right‑to‑sue letters; plaintiffs initially sought, then withdrew, a preliminary injunction.
- Whole Foods and Amazon moved to dismiss for failure to state a claim and (as to some plaintiffs) for failure to exhaust administrative remedies; Amazon argued most plaintiffs made no allegations against it and moved to dismiss Tisme’s claims too.
- The court waived administrative‑exhaustion for efficiency, dismissed claims by plaintiffs who had not alleged factual bases against a particular defendant (e.g., Evans, Tisme as to Whole Foods; Whole Foods Plaintiffs as to Amazon), dismissed Count One (discrimination) in full, granted Amazon’s motion in its entirety, and allowed only Kinzer’s retaliation claim to proceed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Administrative exhaustion | Waiver not required because plaintiffs sought preliminary injunctive relief and some later obtained right‑to‑sue letters | Plaintiffs failed to exhaust EEOC remedies before filing | Court waived exhaustion and reached merits for efficiency; did not dismiss solely for lack of right‑to‑sue letters |
| Disparate treatment/disparate impact (Title VII discrimination) | Selective enforcement of the Policy against BLM disparately affected and targeted Black employees and their advocates | Discipline enforced regardless of employee race; policy enforcement is content‑based speech regulation, not race‑based discrimination under Title VII | Dismissed: plaintiffs failed to allege adverse action "because of" an individual's race or a disparate racial impact; Title VII claims (Count One) dismissed |
| Associational discrimination | Plaintiffs say wearing BLM attire is associational advocacy for Black employees and thus protected under Title VII | Defendants say Title VII protects against discrimination because of an individual's race or intimate association with a person of a particular race, not general advocacy or race‑linked messaging | Dismissed: plaintiffs did not allege they were targeted for associating with specific persons of another race or for advocating on behalf of identified victims of racial discrimination |
| Retaliation (Title VII opposition clause) | Wearing BLM apparel and continuing to wear it in protest opposed unlawful discrimination and thus is protected activity; discipline after protest is retaliatory | Defendants say protest was directed at broad social injustice, not an employment practice made unlawful by Title VII; plaintiffs could not have a reasonable belief Title VII was violated because discipline applied irrespective of race | Split: Kinzer adequately pleaded protected activity, causation, and adverse action (termination) so her retaliation claim survives; other plaintiffs failed to allege they engaged in protected opposition to an unlawful employment practice and their retaliation claims were dismissed |
Key Cases Cited
- A.G. ex rel. Maddox v. Elsevier, Inc., 732 F.3d 77 (1st Cir. 2013) (pleading standard: accept well‑pleaded facts and reasonable inferences)
- Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) (complaint must state a plausible claim)
- Ashcroft v. Iqbal, 556 U.S. 662 (2009) (separate factual allegations from legal conclusions for plausibility analysis)
- Bostock v. Clayton County, 140 S. Ct. 1731 (2020) (Title VII requires that adverse action be because of the employee’s protected characteristic)
- Martínez‑Rivera v. Commonwealth of P.R., 812 F.3d 69 (1st Cir. 2016) (right‑to‑sue letter is a precondition that can be waived)
- Pinkard v. Pullman‑Standard, 678 F.2d 1211 (5th Cir. 1982) (post‑filing receipt of right‑to‑sue letter cures pre‑filing deficiency)
- Univ. of Tex. Southwestern Med. Ctr. v. Nassar, 570 U.S. 338 (2013) (retaliation requires but‑for causation)
- Deffenbaugh‑Williams v. Wal‑mart Stores, Inc., 156 F.3d 581 (5th Cir. 1998) (recognition of associational discrimination doctrine)