Frith v. Whole Foods Mkt., Inc.

38 F.4th 263

Suverino FRITH, et al., Plaintiffs, Appellants,

Savannah Kinzer and Christopher Michno, Plaintiffs,

v.WHOLE FOODS MARKET, INC.; Amazon.com, Inc., Defendants, Appellees.

No. 21-1171

United States Court of Appeals, First Circuit.

June 28, 2022

Shannon E. Liss-Riordan, with whom Anastasia Doherty and Lichten & Liss-Riordan, P.C. were on brief, for appellants.

Michael L. Banks, with whom Anne Marie Estevez, Terry D. Johnson, Julie V. Silva Palmer, Andrew M. Buttaro and Morgan, Lewis & Bockius LLP, were on brief, for appellees.

Emma Quinn-Judge and Zalkind Duncan & Bernstein LLP, for Massachusetts Employment Lawyers Association and American Civil Liberties Union of Massachusetts, Inc., amici curiae.

Srish Khakurel, Sophia Hall, Oren M. Sellstrom, and Lawyers for Civil Rights for Lawyers for Civil Rights, Boston Society of Vulcans of Massachusetts, Charles Hamilton Houston Institute for Race and Justice, Jewish Alliance for Law and Social Action, Justice at Work, Inc., and Massachusetts Association of Minority Law Enforcement Officers, amici curiae.

Before Thompson and Lipez, Circuit Judges, and Torresen^* , District Judge.

LIPEZ, Circuit Judge.

Appellants represent a putative class of Whole Foods and Amazon employees who were sent home without pay or otherwise disciplined for wearing face masks bearing the phrase "Black Lives Matter." They assert that Whole Foods and Amazon's enforcement of Whole Foods' previously unenforced dress code policy in this manner constitutes race-based discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964. The district court dismissed their suit for failure to state a claim. Although our reasoning differs somewhat from that of the district court, we affirm.

I.

Appellants were employed by Whole Foods and its parent company, Amazon, (hereinafter, "Whole Foods") at stores in Massachusetts, New Hampshire, California, Georgia, Indiana, New Jersey, Pennsylvania, Virginia, and Washington. The Whole Foods dress code policy "prohibits employees from wearing clothing with visible slogans, messages, logos, or advertising that are not company-related." However, prior to the events at issue in this case, the policy was "generally unenforced." For example, employees were not disciplined for wearing apparel with the logos of local sports teams and the National Rifle Association, LGBTQ+ Pride flags, the anarchist symbol, and the phrase "Lock Him Up" (ostensibly a reference to President Trump).

With the onset of the coronavirus pandemic in spring 2020, Whole Foods workers began wearing face masks, including face masks with the cartoon character SpongeBob SquarePants, images and names of vegetables, and prints. Around June 2020, "[f]ollowing the death of George Floyd and demonstrations ... around the country protesting police violence and other discrimination against Blacks ... many Black Whole Foods employees and their non-Black coworkers began wearing masks with the message Black Lives Matter." They did so "in a show of solidarity" with the Black Lives Matter movement, "to protest racism and police violence against Blacks and to show support for Black employees."¹

Appellants believed that Whole Foods would support their decision to wear these masks "because Whole Foods has expressed support for inclusivity and equality and because it previously allowed its employees to express support for their LGBTQ+ coworkers through their apparel without discipline." Further, Whole Foods and Amazon have publicly expressed support for the Black community and the Black Lives Matter message. In the wake of the nationwide protests following Floyd's death, Whole Foods posted on its website "Racism has no place here" and "We support the black community and meaningful change in the world." However, when appellants started to wear Black Lives Matter face masks at work, Whole Foods began to enforce its previously unenforced dress code policy.² Appellants were sent home without pay for refusing to remove their masks and were assigned disciplinary points. Disciplinary points affect an employee's eligibility for raises, and the accrual of disciplinary points can result in termination.

In addition "to protest[ing] racism and police violence against Blacks and ... show[ing] support for Black employees," employees wearing Black Lives Matter face masks have "made clear that wearing the Black Lives Matter masks is a demand for better treatment of Black employees in the work place," meaning at Whole Foods. In this regard, "[a]s part of their protest in wearing the masks," appellants have "asked for the release of racial demographic data of Whole Foods employees and management, to help determine whether Black employees are receiving promotions fairly." And "they have asked for the removal of armed guards from Whole Foods stores in order to ensure Black employees are comfortable in their workplace." Further, after Whole Foods prohibited employees from wearing Black Lives Matter face masks at work, some employees continued wearing them "in order to challenge what they perceive to be racism and discrimination by Whole Foods for not allowing employees to wear [the masks]."

In July 2020, appellants filed a two-count complaint against Whole Foods, alleging racial discrimination and retaliation in violation of Title VII and seeking class certification on behalf of Whole Foods employees subject to the prohibition on wearing Black Lives Matter face masks at work. Appellants subsequently filed an amended complaint ("the complaint"), which added allegations against Amazon. Defendants moved to dismiss the complaint for failure to state a claim, and the district court granted defendants' motion.³

Regarding the discrimination claims, the district court stated that plaintiffs "have not alleged that [d]efendants would have treated any individual plaintiff differently if that plaintiff were of a different race. To the contrary, their allegations demonstrate that [d]efendants treated all employees wearing [Black Lives Matter] attire equally, regardless of race." Frith v. Whole Foods Market, Inc., 517 F. Supp. 3d 60, 71 (D. Mass. 2021). The district court further stated that plaintiffs "have not alleged facts suggesting that any individual plaintiff associated with any other employee of a different race or that [d]efendants disciplined any individual employee because of a difference in race between that employee and another employee." Id. at 72. Therefore, the district court concluded that "because no plaintiff alleges that he or she was discriminated against on account of his or her race ..., [p]laintiffs have failed to state a claim for discrimination under Title VII." Id. at 73.

Regarding retaliation, the district court stated that "wearing [Black Lives Matter] attire to protest racism and police violence against Blacks and to show support for Black employees cannot support a Title VII retaliation claim because it is not done to oppose ‘any practice made an unlawful employment practice’ under Title VII." Id. at 74 (quoting 42 U.S.C. § 2000e-3(a).) Further, the court stated, the complaint "does not provide enough information to support the inference that each individual plaintiff wore a [Black Lives Matter] mask in ‘opposition’ to" Whole Foods enforcing its dress code policy "and was then disciplined for doing so." Id. at 75. The district court therefore also dismissed appellants' retaliation claims.⁴ Appellants timely appealed.

II.

We review de novo the district court's dismissal of a suit for failure to state a claim. Harry v. Countrywide Home Loans, Inc., 902 F.3d 16, 18 (1st Cir. 2018). In considering the sufficiency of a complaint, we are guided by certain bedrock principles set forth by the Supreme Court. A complaint must "possess enough heft to show that the pleader is entitled to relief." Ocasio-Hernández v. Fortuño-Burset, 640 F.3d 1, 8 (1st Cir. 2011) (emphasis omitted) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). In other words, to survive a motion to dismiss, a complaint's factual allegations must be "enough to raise a right to relief above the speculative level." Id. (quoting Twombly, 550 U.S. at 555, 127 S.Ct. 1955 ). For example, wholly conclusory claims will not suffice where the defendant's alleged conduct is merely "consistent with" unlawful action and is "just as much in line with" lawful action. Id. at 9 (quoting Twombly, 550 U.S. at 554, 127 S.Ct. 1955 ). In Twombly, for instance, "[f]inding an ‘obvious alternative explanation’ for the alleged [anticompetitive] behavior of the defendants, the [Court] concluded that the ‘plaintiffs here have not nudged their claims across the line from conceivable to plausible.’ " Id. (quoting Twombly, 550 U.S. at 567, 570, 127 S.Ct. 1955 ). Simply put, a complaint "must contain sufficient factual matter to state a claim to relief that is plausible on its face." Grajales v. P.R. Ports Auth., 682 F.3d 40, 44 (1st Cir. 2012).

We have explained that assessing plausibility is "a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Rodríguez-Reyes v. Molina-Rodríguez, 711 F.3d 49, 53 (1st Cir. 2013) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 679, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) ). If the factual allegations in a complaint, stripped of conclusory legal allegations, raise no "more than a sheer possibility that a defendant has acted unlawfully," the complaint should be dismissed. Id. (quoting Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 ); see also SEC v. Tambone, 597 F.3d 436, 442 (1st Cir. 2010) (en banc) ("If the factual allegations in the complaint are too meager, vague, or conclusory to remove the possibility of relief from the realm of mere conjecture, the complaint is open to dismissal."). With these background principles in mind, we turn to the specific claims on appeal.

III.

Appellants claim that, by enforcing the dress code policy to prohibit Black...