Whole Foods Market, Inc.

United States Court of Appeals for the First Circuit · 2024 · Corporations

CorporationsTitle VII retaliationsummary judgmentemployment discriminationdiscoveryTitle VIIretaliationprotected activity

Facts

In 2020, Whole Foods enforced its dress code against employees who wore Black Lives Matter masks, sending some home and imposing progressive discipline. Savannah Kinzer repeatedly protested the policy, organized coworkers and public protests, spoke to the press, and filed EEOC and NLRB charges; she was fired after receiving a final tardiness point when her bicycle tire had been stolen, even though her supervisor believed that point should be excused under the attendance policy. Haley Evans and Christopher Michno also wore BLM masks and engaged in related protest activity, but they were terminated only after accumulating disciplinary infractions through Whole Foods' ordinary corrective-action process. The employees sued for retaliation under Title VII, claiming Whole Foods' stated reasons for firing them were pretextual.

Issue

Whether the employees produced sufficient evidence for a reasonable jury to find that Whole Foods' stated reasons for terminating them were a pretext for unlawful retaliation under Title VII. Also, whether the court should review the discovery order compelling production of group chat communications.

Rule

Title VII retaliation claims are analyzed under McDonnell Douglas: the plaintiff must show protected conduct, adverse action, and causation; the employer must articulate a legitimate, nonretaliatory reason; and the plaintiff must then show that reason is pretext for retaliation. To survive summary judgment, the plaintiff need only raise a genuine issue of fact as to whether retaliation motivated the adverse action, but a reasonable jury must be able to find retaliatory animus was the but-for cause. An employer does not retaliate merely by continuing to enforce a workplace rule in the same manner as before; the employee must show retaliatory discipline was distinguishable from preexisting or ongoing discipline for the underlying rule violation.

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Nina Flores worked for Harbor Lantern Grocers in Boston. After she repeatedly complained that the company was targeting employees who wore antidiscrimination slogans, executives called her an "agitator" in internal emails. She was later fired after receiving a final tardiness point when her subway line shut down unexpectedly, even though the attendance policy allowed points to be waived for transportation problems outside an employee's control and her direct supervisor urged that the point be excused.

On Nina's Title VII retaliation claim, the employer moves for summary judgment, arguing that she was terminated only because she accumulated enough attendance points under a neutral policy. How should the court most likely rule?

Explanation. Under the majority opinion, once the employer offers a legitimate nonretaliatory reason, the plaintiff may survive summary judgment by identifying specific facts from which a reasonable jury could find that reason is pretextual. Evidence that the employer deviated from its own attendance policy in refusing to excuse a final point for circumstances beyond the employee's control, especially when supervisors thought the point should be waived, can support pretext. So can evidence that decisionmakers closely tracked and viewed the employee's protected activity unfavorably. The plaintiff need not prove her case by a preponderance at summary judgment, but must raise a genuine issue of fact on but-for retaliatory motive. (Derived from Whole Foods Market, Inc. (n.d.).)