Frith v. Whole Foods Mkt., Inc.
| Decision Date | 05 February 2021 |
| Docket Number | Civil Action No. 20-cv-11358-ADB |
| Parties | SUVERINO FRITH, et al., individually and on behalf of all others similarly situated, Plaintiffs, v. WHOLE FOODS MARKET, INC., and AMAZON.COM, INC., Defendants. |
| Court | U.S. District Court — District of Massachusetts |
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, 42 U.S.C. § 2000e, et seq. ("Title VII") by discriminating and retaliating against employees for wearing Black Lives Matter ("BLM") masks and other attire. See [ECF No. 11 ("Am. Compl.")]. Currently before the Court are Defendants' respective motions to dismiss. [ECF Nos. 31 (Whole Foods), 49 (Amazon)]. For the reasons set forth below, Amazon's motion is GRANTED in its entirety and Whole Foods' motion is GRANTED in part.
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 BLMmasks and/or other BLM items, [id. ¶ 2].3 For instance, at its store on River Street in Cambridge, Massachusetts, Whole Foods sent Plaintiffs Frith, Kinzer, Juarez, Walsh, Shanahan, Samuel, Osayande, Ifebohr, Ryland, Burt, and Michel (along with other employees) home because they reported for work wearing BLM masks. [Id. ¶ 54]. The sent-home employees received no pay and were given disciplinary "points," which accumulate over time and can result in termination. [Id.]. Plaintiff Kinzer was terminated, in part, because of the "points" she had accumulated as a result of wearing a BLM mask.4 [Id. ¶ 75]. Even if an employee has not accumulated enough "points" to merit termination, any employee with "points" at the time of an annual review is ineligible to receive the maximum performance-based annual increase in wages. [Id. ¶ 55]. In Seattle, Washington, Whole Foods also sent employees, including Plaintiffs Tucker-Talbot and Thompson, home from stores for wearing BLM masks and placed employees, including Plaintiff Tucker-Talbot, on a "corrective action pathway" that requires employees to undergo additional training. [Id. ¶ 57]. In California, Whole Foods has sent employees, including Plaintiffs Del-Rio Ramirez and Visco, home from its Berkeley and Petaluma stores forwearing BLM masks and other paraphernalia (e.g., pins and tags), [id. ¶¶ 58-59], and took similar actions against employees in New Hampshire, [id. ¶ 60], Pennsylvania, [id. ¶ 61], Virginia, [id. ¶ 62], Georgia [id. ¶ 63], and Indiana, [id. ¶ 64]. Amazon has also disciplined at least one employee for wearing BLM attire. See [id. ¶ 81 ()].5
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-levelmanagement has little discretion. [Am. Compl. ¶ 66]. Although Whole Foods regional managers visited with employees in Massachusetts and Washington to discuss the Policy as it pertained to BLM attire and told the employees that their concerns would be communicated upward, nothing changed. [Id.].
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].
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, orattempting to wear, the [BLM] masks at work." [Id. at 20]. In Count Two, Plaintiffs allege that Defendants' "discipline of their employees for opposing their discriminatory policy in not allowing employees to wear [BLM] masks while working at Whole Foods locations" is unlawful retaliation in violation of Title VII. [Id.].
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].
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 judicialexperience and common sense.'" Id. at 44 (quoting Iqbal, 556 U.S. at 679). "[T]he complaint should be read as a whole, not parsed piece by piece to determine whether each allegation, in isolation, is plausible." Hernandez-Cuevas v. Taylor, 723 F.3d 91, 103 (1st Cir. 2013) (quoting Ocasio-Hernández v. Fortuño-Burset, 640 F.3d 1, 14 (1st Cir. 2011)). "The plausibility standard invites a two-step pavane." Elsevier, 732 F.3d at 80 (citing Grajales, 682 F.3d at 45). First, the Court "must separate the complaint's factual allegations (which must be accepted as true) from its conclusory legal allegations (which need not be credited)." Id. (quoting Morales-Cruz v. Univ. of P.R., 676 F.3d 220, 224 (1st Cir. ...
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