SUVERINO FRITH, et al., individually and on behalf of all others similarly situated, v. WHOLE FOODS MARKET, INC., and AMAZON.COM, INC.
Civil Action No. 20-cv-11358-ADB
UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS
February 5, 2021
BURROUGHS, D.J.
BURROUGHS, D.J.
Plaintiffs,1 representing a putative class of current and former employees of Defendant Whole Foods Market, Inc. (“Whole Foods“) or of Amazon.com, Inc. (“Amazon,” and, together with Whole Foods, “Defendants“), allege that Defendants have violated Title VII of the Civil Rights Act of 1964,
A. Factual Background
For purposes of the instant motions to dismiss, the Court, as it must, “accept[s] as true all well-pleaded facts alleged in the complaint and draw[s] all reasonable inferences therefrom in the pleader‘s favor.” A.G. ex rel. Maddox v. Elsevier, Inc., 732 F.3d 77, 80 (1st Cir. 2013).
Whole Foods is a corporation headquartered in Austin, Texas that operates hundreds of grocery stores throughout the United States. [Am. Compl. ¶ 36]. Amazon, Whole Foods’ corporate parent, is headquartered in Seattle, Washington and, as is relevant here, employs “Prime Shoppers” at Whole Foods stores to fulfill grocery delivery orders placed online. [Id. ¶¶ 36-37].
In the wake of George Floyd‘s killing and nation-wide protests against racial injustice and police brutality, people around the country have been showing their support for the BLM movement. [Am. Compl. ¶ 1]. Since approximately June 2020, Plaintiffs have demonstrated their support for the BLM movement by, among other things, wearing facial masks and other attire with BLM messaging to work.2 [Id. ¶¶ 1, 49]. As grocery store employees, they are required to wear facial masks to work because of the global COVID-19 pandemic. [Id. ¶ 1].
Notwithstanding Whole Foods’ public support for the BLM movement, [Am. Compl. ¶ 51], it began disciplining Plaintiffs and other employees in a variety of ways for wearing BLM
In response to being disciplined, some plaintiffs quit, see [Am. Compl. ¶ 57 (Plaintiff Tucker-Talbot)]; some acquiesced and stopped wearing BLM items, see [id. (Plaintiff Thompson); id. ¶ 71 (Plaintiff Robinson)]; while others continued to wear the masks in protest, see [id. ¶ 70].
At all relevant times, Whole Foods has maintained a company-wide dress code policy (the “Policy“), which prohibits employees from wearing clothing with visible slogans, messages, logos, and/or advertising that are not Whole Foods-related. [Am. Compl. ¶ 42]. Until Plaintiffs began wearing BLM masks and other attire in June 2020, however, the Policy was rarely enforced: Whole Foods employees previously wore a variety of items that were violative of the Policy and were not disciplined. [Id. ¶¶ 43, 44]. For instance, employees wore items with LGBTQ+ messaging, National Rifle Association (“NRA“) messaging, the anarchist symbol, the phrase “Lock Him Up,” and other non-Whole Foods messaging. [Id.]. Even in connection with masks specifically, Whole Foods has not strictly enforced the Policy, permitting at least one employee to wear a SpongeBob SquarePants mask. [Id. ¶ 47].
Plaintiffs’ managers have informed them that enforcement of the Policy and discipline in connection with BLM attire are Whole Foods corporate directives and that store-level
Plaintiffs contend that wearing BLM attire is a demand for better treatment of Black employees. [Am. Compl. ¶ 69]. Plaintiffs have also sought the release of racial demographic data for Whole Foods employees and management to assess whether Whole Foods’ promotion practices are fair to Black employees and requested that armed guards be removed from Whole Foods stores to ensure that Black employees are comfortable at work. [Id.]. As employees continue to be disciplined, Plaintiffs are wearing BLM masks for the added purpose of challenging “what they perceive to be racism and discrimination by Whole Foods for not allowing employees to wear [BLM] masks.” [Id. ¶ 70].
B. Procedural Background
Prior to filing their amended complaint, multiple plaintiffs filed complaints with the Equal Employment Opportunity Commission (“EEOC“). [Am. Compl. ¶ 84]. As of February 5, 2021, at least five plaintiffs have received EEOC “right to sue” letters. [ECF Nos. 55-1 (Plaintiff Frith), 55-2 (Plaintiff Kinzer), 55-3 (Plaintiff Barry), 55-4 (Plaintiff Styles), 54-2 (Plaintiff Tisme)].
Plaintiffs filed their operative, two-count complaint on July 31, 2020. [Am. Compl.]. In Count One, Plaintiffs allege that Defendants’ selective enforcement of the Policy constitutes unlawful racial discrimination in violation of Title VII because “the [P]olicy has both adversely affected Black employees and it has singled out for disfavored treatment advocacy and expression of support for Black employees, by both Black employees and their non-Black coworkers who have associated with them and shown support for them through wearing, or
On August 14, 2020, Whole Foods moved to dismiss the complaint for failure to state a claim. [ECF No. 31]. Plaintiffs opposed Whole Foods’ motion on August 28, 2020, [ECF No. 42], and Whole Foods filed a reply on September 1, 2020, [ECF No. 43].
On September 9, 2020, Amazon also moved to dismiss the complaint for failure to state a claim. [ECF No. 49]. Plaintiffs opposed Amazon‘s motion and filed a notice of supplemental authorities on September 23, 2020, [ECF Nos. 54, 55], and Amazon filed a reply on October 5, 2020, [ECF No. 58].
II. LEGAL STANDARD
In reviewing a motion to dismiss under Rule 12(b)(6), the Court must accept as true all well-pleaded facts, analyze those facts in the light most favorable to the plaintiff, and draw all reasonable factual inferences in favor of the plaintiff. See Gilbert v. City of Chicopee, 915 F.3d 74, 80 (1st Cir. 2019). “[D]etailed factual allegations” are not required, but the complaint must set forth “more than labels and conclusions.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). The alleged facts must be sufficient to “state a claim to relief that is plausible on its face.” Id. at 570.
“To cross the plausibility threshold a claim does not need to be probable, but it must give rise to more than a mere possibility of liability.” Grajales v. P.R. Ports Auth., 682 F.3d 40, 44-45 (1st Cir. 2012) (citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). “A determination of plausibility is ‘a context-specific task that requires the reviewing court to draw on its judicial
Although a “complaint in an employment discrimination lawsuit [need not] contain specific facts establishing a prima facie case of discrimination” but rather “must contain only ‘a short and plain statement of the claim showing that the pleader is entitled to relief,‘” Swierkiewicz v. Sorema N.A., 534 U.S. 506, 508 (2002) (quoting Fed. R. Civ. P. 8(a)(2)), the Court must dismiss a complaint if “it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations.” Hishon v. King & Spalding, 467 U.S. 69, 73 (1984) (citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). The facts pled must “allow the Court to plausibly infer liability.” Sisco v. DLA Piper LLP, 833 F. Supp. 2d 133, 140 (D. Mass. 2011).
III. DISCUSSION
Before considering the parties’ arguments, the Court will briefly examine which plaintiffs have asserted and can assert claims against which defendants.
Plaintiff Evans alleges only that she “resides in Sicklerville, New Jersey, and works for Whole Foods at the Rt. 73N location in Marlton, New Jersey.” [Am. Compl. ¶ 31]. She does not
Plaintiff Tisme alleges that she was an Amazon employee and that Amazon discriminated and/or retaliated against her. [Am. Compl. ¶¶ 22, 81]. Because she has made no allegations regarding Whole Foods, Whole Foods’ motion to dismiss, [ECF No. 31], must be granted as to Plaintiff Tisme.
Similarly, the remaining twenty-six named plaintiffs (the “Whole Foods Plaintiffs“) allege that they were Whole Foods employees and that Whole Foods discriminated and/or retaliated against them. See [Am. Compl.]. Because the Whole Foods Plaintiffs have made no allegations regarding Amazon, Amazon‘s motion to dismiss, [ECF No. 49], must be granted as to those plaintiffs.
In sum, both motions to dismiss, [ECF No. 31, 49], are GRANTED as to Plaintiff Evans, Whole Foods’ motion to dismiss, [ECF No. 31], is GRANTED as to Plaintiff Tisme, and Amazon‘s motion to dismiss, [ECF No. 49], is GRANTED as to the Whole Foods Plaintiffs.
A. The Parties’ Arguments
Whole Foods argues that Plaintiffs (1) are barred from pursuing their Title VII claims at this time because they have failed to exhaust their administrative remedies with the EEOC, [ECF No. 32 at 8-9]; (2) have failed to state a discrimination claim because they do not allege that Whole Foods disciplined or discharged any employees because of their race or applied the Policy
In response, Plaintiffs assert that (1) the administrative exhaustion requirement does not bar their claims because they initially sought, and still intend to seek, preliminary injunctive relief,6 [ECF No. 42 at 19-21]; (2) by selectively enforcing the Policy to target and suppress BLM messaging, Whole Foods discriminated against Black employees, and other employees associating with and advocating for Black employees, in violation of Title VII, [id. at 8-14]; and (3) Whole Foods retaliated against employees for continuing to wear BLM apparel and otherwise protesting the Policy, which constitutes protected activity, [id. at 14-18].
Whole Foods responds that Plaintiffs’ (1) withdrawal of their motion for preliminary injunctive relief undermines their arguments regarding administrative exhaustion, [ECF No. 43 at 2-3]; (2) failure to allege that Whole Foods took any particular action specifically because of the race of any particular employee is fatal to their discrimination claim, [id. at 3-5]; and (3) protesting was directed at a broad social injustice, not Whole Foods’ enforcement of the Policy, and, therefore, was not a protected activity, [id. at 5-6].
Amazon largely echoes Whole Foods’ arguments but focuses solely on Plaintiff Tisme, who is the only plaintiff who works for Amazon and who, at the time Amazon filed its brief, had not received a “right to sue” letter from the EEOC. See [ECF No. 50]. According to Plaintiffs, Plaintiff Tisme‘s receipt of a “right to sue” letter after the amended complaint was filed cured any administrative exhaustion issue, [ECF No. 54-2], and Plaintiff Tisme states claims for discrimination and retaliation for the same reasons her co-workers do, noting specifically that
B. Exhaustion of Administrative Remedies
Though the “First Circuit has repeatedly held that ‘a federal court will not entertain employment discrimination claims brought under Title VII unless administrative remedies have first been exhausted,‘” Ngomba v. Olee, No. 18-cv-11352, 2019 WL 1119588, at *2 (D. Mass. Mar. 11, 2019) (quoting Rodriguez v. United States, 852 F.3d 67, 78 (1st Cir. 2017)), it has also held that “while the right-to-sue-letter requirement remains, it is simply ‘a precondition to bringing’ suit, not a jurisdictional bar, and thus ‘can be waived by the parties or the court.‘” Martínez-Rivera v. Commonwealth of P.R., 812 F.3d 69, 78 (1st Cir. 2016) (quoting Pietras v. Bd. of Fire Comm’rs of Farmingville Fire Dist., 180 F.3d 468, 474 (2d Cir. 1999)); see also Robertson v. Barber Foods, LLC, No. 19-cv-00455, 2020 WL 3104047, *4 (D. Me. June 11, 2020) (noting that requiring “a plaintiff to plead exhaustion in his complaint makes little sense when the exhaustion requirement can be waived by the parties or the court“); id. at *4 n.5 (collecting cases where, for various reasons, courts waived the administrative exhaustion requirement). Waiver aside, courts have held that subsequent receipt of a “right to sue” letter cures any deficiency with an earlier, pre-letter filing. See, e.g., Pinkard v. Pullman-Standard, a Div. of Pullman, Inc., 678 F.2d 1211, 1218 (5th Cir. 1982); Holmes v. PHI Serv. Co., 437 F. Supp. 2d 110, 123 (D.D.C. 2006) (“Thus . . . where a defendant moves to dismiss a plaintiff‘s Title VII action for failure to exhaust administrative remedies because the plaintiff did not receive a right-to-sue letter before filing suit, the court should not dismiss the claim if, after filing the complaint but before dismissal, the plaintiff receives a corresponding right-to-sue letter from the EEOC.“).
Although the Court could dismiss the complaint as to the plaintiffs who have not yet received a “right to sue” letter and permit them to amend once they have received one, in the interest of efficiency, the Court will waive the administrative exhaustion requirement and adjudicate Defendants’ motions to dismiss on the merits. Additionally, as Plaintiffs note, the First Circuit has recognized that exhaustion of administrative remedies may be unnecessary when plaintiffs seek preliminary injunctive relief. See Bailey v. Delta Air Lines, Inc., 722 F.2d 942, 944 (1st Cir. 1983). Here, Plaintiffs sought a preliminary injunction when they filed the operative complaint. The Court will not dismiss the complaint as premature simply because they have since withdrawn their motion.
Accordingly, the Court waives Title VII‘s administrative exhaustion requirement for those plaintiffs who have not yet received a “right to sue” letter.
C. Title VII Claims
1. Discrimination
Title VII makes it unlawful for any employer to “fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual‘s race, color, religion, sex, or national origin” or “limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual‘s race, color, religion, sex, or national origin.”
To establish a prima facie case of disparate treatment discrimination, a plaintiff must show: (1) he is a member of a protected class; (2) he was qualified for his position; (3) his employer took an adverse employment action against him; and (4) some evidence of a causal link between his protected status and the adverse employment action.
Mason v. Cent. Mass Transit Mgmt./Worcester Reg’l Transit Auth., 394 F. Supp. 3d 166, 173 (D. Mass 2019) (citing Bhatti v. Trs. of Bos. Univ., 659 F.3d 64, 70 (1st Cir. 2011)).
To state a prima facie case of disparate impact under Title VII, a plaintiff must first “identify the challenged employment practice or policy and pinpoint the defendant‘s use of it. Second, the plaintiff must demonstrate a disparate impact on a group characteristic, such as race, that falls within the protective ambit of Title VII. Third, the plaintiff must demonstrate a causal relationship between the identified practice and the disparate impact.”
Mompoint v. Dep‘t of Elementary and Secondary Educ., No. 18-cv-11094, 2019 WL 1921631, at *3 (D. Mass. Apr. 30, 2019) (internal citations omitted) (quoting EEOC v. S.S. Clerks Union, Local 1066, 48 F.3d 594, 601 (1st Cir. 1995)).
For purposes of this case, Title VII prohibits race-based discrimination. Here, the Plaintiffs, who do not allege any facts regarding their own races, have failed to adequately allege a Title VII violation under either a disparate treatment or disparate impact theory. They do not allege that Defendants disciplined them because of their race or applied the Policy differently based on the race of employees violating it, or that Defendants’ application of the Policy had a disproportionate impact on employees of any particular race. Rather, they allege that Defendants disciplined employees, regardless of race, for wearing BLM clothing and that the discipline was content-based and intended to suppress BLM messaging. Putting aside the wisdom or fairness of Defendants’ decision to aggressively discipline employees for wearing BLM attire, particularly
In Bostock v. Clayton County, the Supreme Court addressed a Title VII claim based on alleged sex discrimination. 140 S. Ct. 1731, 1738 (2020). In that case, the court reinforced what the plain language of the statute makes clear: that the proper focus is on the protected characteristic of the individual employee bringing the claim. Id. at 1740-41. “[A]n employer who intentionally treats a person worse because of sex—such as by firing the person for actions or attributes it would tolerate in an individual of another sex—discriminates against that person in violation of Title VII.” Id. at 1740. Put another way, “if changing the employee‘s sex would have yielded a different choice by the employer—a statutory violation has occurred.” Id. at 1741. A straightforward application of Bostock‘s rationale to this case leads to the conclusion that Plaintiffs have failed to state a claim for Title VII discrimination. They have not alleged that Defendants would have treated any individual plaintiff differently if that plaintiff were of a different race. To the contrary, their allegations demonstrate that Defendants treated all employees wearing BLM attire equally, regardless of race, see [Am. Compl. ¶¶ 4, 49], which demonstrates that the race of the individual employee subject to discipline was not a motivating factor in Defendants’ decision. Further, Plaintiffs’ proposed class, “all Whole Foods and Amazon employee who have been subject to Whole Foods’ and Amazon‘s policy of not allowing employees to wear Black Lives Matter masks while working at Whole Foods locations,” [id. ¶ 82], reinforces the fact that the race of the individual employee subject to discipline is irrelevant to Plaintiffs’ claims. Even assuming that Defendants failed to discipline employees for
Plaintiffs attempt to bypass the plain language of Title VII by advancing an associational discrimination theory, but that fails as well. Although the parties cite no controlling First Circuit cases regarding associational discrimination under Title VII and the Court has not found any, federal courts of appeals that have considered the issue have held that Title VII prohibits associational discrimination. See, e.g., Holcomb v. Iona Coll., 521 F.3d 130 (2d Cir. 2008); Johnson v. Univ. of Cincinnati, 215 F.3d 561 (6th Cir. 2000); Deffenbaugh-Williams v. Wal-mart Stores, Inc., 156 F.3d 581 (5th Cir. 1998), vacated in part on other grounds sub nom. Williams v. Wal-Mart Stores, Inc., 182 F.3d 333 (5th Cir. 1999); Drake v. Minnesota Mining & Mfg. Co., 134 F.3d 878 (7th Cir. 1998); Parr v. Woodmen of the World Life Ins. Co., 791 F.2d 888 (11th Cir. 1986). Moreover, multiple courts within this district have acknowledged the theoretical availability of associational discrimination claims under Title VII. Baer v. Montachusett Reg. Tech. Sch. Dist., 380 F. Supp. 3d 143 (D. Mass. 2019); Persson v. Boston Univ., No. 15-cv-14037, 2019 WL 917205 (D. Mass. Feb. 25, 2019); Gallo v. W.B. Mason Co., No. 10-cv-10618, 2010 WL 4721064 (D. Mass. Nov. 15, 2010). A plaintiff advancing an associational discrimination claim, however, still must allege that they were discriminated against on the basis of race, rather than on the basis of race-related messaging.
Typically, plaintiffs assert associational discrimination when they are subjected to discrimination for maintaining a relationship with a member of another race. In that type of case, courts focus on the fact that when employers target employees for associating with members of a particular race, they are, in fact, discriminating on the basis of the employees’ race. See, e.g.,
Here, Plaintiffs have not alleged facts suggesting that any individual plaintiff associated with any other employee of a different race or that Defendants disciplined any individual employee because of a difference in race between that employee and another employee. Rather, Plaintiffs allege that Defendants disciplined employees for wearing BLM attire, which, in their view, is a manner of advocating for and associating with all Black Whole Foods employees. [Am. Comp. ¶¶ 68-69]. Plaintiffs, however, have cited no case where a court sanctioned a Title VII claim premised on a similar factual scenario and the cases that Plaintiffs do cite are factually distinguishable. Again, Title VII prohibits discrimination based on race. It cannot be read expansively enough to extend its protections to employees who have been disciplined for wearing clothes that violate a company dress code, even if that clothing is associated with individuals of a particular race. As examples, Plaintiffs cite Barrett v. Whirlpool Corp., but in that case, the plaintiffs were white women who alleged that they were discriminated against because they defended and supported their Black co-workers, who, themselves, were being
To summarize, because no plaintiff alleges that he or she was discriminated against on account of his or her race or that he or she was discriminated against for advocating on behalf of a co-worker who had been subject to discrimination, Plaintiffs have failed to state a claim for
2. Retaliation
Title VII makes it unlawful “for an employer to discriminate against any of his employees . . . because he has opposed any practice made an unlawful practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation proceeding, or hearing under this subchapter.”
With the exception of Plaintiff Kinzer, Plaintiffs’ retaliation claims fail.
Plaintiff Kinzer alleges three different potential protected activities that preceded her termination including leading employee protests in opposition to Whole Foods’ enforcement of the Policy, which she perceived as discriminatory; wearing a BLM mask in opposition to Whole Foods’ enforcement of the Policy; and filing charges with the EEOC and the NLRB, alleging discrimination and retaliation. [Am. Compl. ¶¶ 75-76]. There is no dispute that termination is an adverse employment action. See Ponte v. Steelcase, Inc., 741 F.3d 310, 321 (1st Cir. 2014) (noting that where employee alleging retaliation had been fired, “[t]here is no question that [she] suffered an adverse employment action“). Nor is there any debate that filing a formal complaint constitutes protected conduct under Title VII. See
With respect to the remaining plaintiffs, they argue that wearing BLM attire is protected conduct under Title VII, [ECF No. 42 at 14-16], because they were doing so to protest racism and police violence against Black people and to show support for Black employees, [Am.
Thus, other than Plaintiff Kinzer, Plaintiffs have failed to state a claim for retaliation under Title VII.
*
It would, of course, be more honorable for Defendants to enforce their policies consistently and without regard for the messaging, particularly where the messaging selected for discipline conveys a basic truth. Nevertheless, not all conduct that touches on race is actionable
IV. CONCLUSION
Accordingly, for the reasons set forth above, Amazon‘s motion to dismiss, [ECF No. 49], is GRANTED in its entirety. Whole Foods’ motion, [ECF No. 31], is GRANTED except as to Count II (retaliation) as alleged by Plaintiff Kinzer.
SO ORDERED.
February 5, 2021
/s/ Allison D. Burroughs
ALLISON D. BURROUGHS
U.S. DISTRICT JUDGE