99 F.4th 105
1st Cir.2024Background
- In summer 2020, Whole Foods disciplined and terminated employees for wearing Black Lives Matter (BLM) masks at work, citing its dress code policy barring non-company-affiliated messaging.
- Savannah Kinzer, Haley Evans, and Christopher Michno wore BLM masks as protest and were ultimately terminated for alleged dress code or attendance policy violations.
- The plaintiffs filed a Title VII retaliation suit, alleging their terminations were in response to their protected protest activity and opposition to discriminatory practices.
- The district court granted summary judgment for Whole Foods on all claims, finding insufficient evidence of pretext for retaliation.
- On appeal, the First Circuit reviewed whether summary judgment was proper for each plaintiff's Title VII retaliation claim and whether a related discovery order was subject to interlocutory appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Title VII Retaliation (Kinzer) | Termination was based on protected activity and was pretextual. | Firing was for legitimate accumulation of attendance points. | Summary judgment vacated; genuine dispute of pretext found. |
| Title VII Retaliation (Evans & Michno) | Firings were pretext for retaliation over protest activities. | Firings followed standard progressive discipline. | Summary judgment affirmed; no evidence for pretext. |
| Scope of Protected Oppositional Conduct | Protesting BLM mask discipline is protected under Title VII. | Only formal EEOC complaint is protected, not all protest. | Court assumes protest actions were protected for appeal. |
| Discovery Order Interlocutory Appeal | Discovery violated NLRA-based confidentiality interests. | Discovery order is not appealable under collateral order doctrine. | Court lacks jurisdiction for interlocutory discovery appeal. |
Key Cases Cited
- McDonnell Douglas Corp. v. Green, 411 U.S. 792 (establishes burden-shifting framework for discrimination and retaliation claims)
- Crawford v. Metro. Gov't of Nashville & Davidson Cnty., 555 U.S. 271 (opposition clause of Title VII construed broadly)
- Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338 (Title VII retaliation requires "but-for" causation)
- Cherkaoui v. City of Quincy, 877 F.3d 14 (sets standard for summary judgment review)
- Calero-Cerezo v. U.S. Dep’t of Just., 355 F.3d 6 (evidence of deviation from policy can support pretext)