Kinzer v. Whole Foods Mkt., Inc.

652 F.Supp.3d 185

Savannah KINZER, Haley Evans, and Christopher Michno, Plaintiffs, v. WHOLE FOODS MARKET, INC., Defendant.

Civil Action No. 20-cv-11358-ADB

United States District Court, D. Massachusetts

Signed January 23, 2023

Anastasia Doherty, Equal Employment Opportunity Commission, Boston, MA, Matthew Patton, Shannon E. Liss-Riordan, Lichten & Liss-Riordan, P.C., Boston, MA, for Plaintiffs.

Anne Marie Estevez, Morgan Lewis & Bockius LLP, Miami, FL, Jason J. Ranjo, Pro Hac Vice, Terry D. Johnson, Pro Hac Vice, Morgan, Lewis, & Bockius LLP, Princeton, NJ, Michael L. Banks, Pro Hac Vice, Morgan, Lewis & Bockius LLP, Philadelphia, PA, Andrew M. Buttaro, Julie V. Silva Palmer, Morgan Lewis & Bockius LLP, Boston, MA, for Defendant.

MEMORANDUM AND ORDER GRANTING MOTION FOR SUMMARY JUDGMENT

BURROUGHS, UNITED STATES DISTRICT JUDGE

Savannah Kinzer ("Kinzer"), Haley Evans ("Evans"), and Christopher Michno ("Michno," collectively, "Plaintiffs") were employees of Defendant Whole Foods Market, Inc. ("Whole Foods"). They allege they were unlawfully terminated for opposing Whole Foods' allegedly discriminatory discipline of employees wearing Black Lives Matter masks at work in violation of the anti-retaliation provision of Title VII of the Civil Rights Act of 1964, § 704(a), 42 U.S.C. § 2000e-3(a). Pending before the Court is Whole Foods' motion for summary judgment, [ECF No. 107], which for the following reasons, is GRANTED.

I. BACKGROUND

A. Factual Background

Unless otherwise noted, the following facts are undisputed.¹

i. Whole Foods' Standards and Policies

Whole Foods is a chain of grocery stores. [ECF No. 138 ¶ 1]. It issues General Information Guides ("GIGs") that contain the minimum standards for all employees within the Whole Foods organization. [Id. ¶ 10]. Each store in the United States is assigned to a "Region" based on its location and each Region has its own GIG with minimum standards and additional Region-specific policies. [Id. ¶¶ 2, 10].² The standards all include a policy that prohibits discrimination on the basis of, among other things, an individual's race. [Id. ¶ 11]. This policy encourages employees who believe they have been subject to unlawful discrimination to "notif[y] any Team Leader, a [Team Member Services] representative, . . . the Senior Vice President of Team Member Services or an Executive Vice President of Whole Foods Market" or use Whole Foods' anonymous tip-line. [Id. ¶ 12].³ It also provides that Whole Foods "will not retaliate against a Team Member for filing a complaint and will not knowingly permit retaliation by leadership, your co-workers or other Team Members." [Id. ¶ 13].

During the relevant time period, GIGs also contained progressive discipline, or corrective action, policies for employees that typically included (1) a verbal warning; (2) a written warning; and (3) a final written warning culminating in (4) termination. [ECF No. 138 ¶¶ 15-16, 28]. The specifics of such policies, however, varied across Regions. [Id. ¶ 20]. For example, the North Atlantic Region tracked absenteeism and tardiness using a points system. [Id. ¶ 21]. An employee was considered "absent" if they failed to report for an entire shift and "tardy" if they arrived to work more than ten minutes late or left before the end of their scheduled shift. [Id. ¶ 23]. An absence resulted in two points; a tardy resulted in one. [Id. ¶¶ 24-25]. Employees were expected to report tardiness at least two hours prior to the start of a shift, or as soon as possible if the lateness was unexpected. [Id. ¶ 26]. The disciplinary process for attendance violations progressed as follows: (1) a verbal warning, after five attendance points within a 30-day period; (2) a written warning, if another four points were accrued in the next 60 days; (3) a final warning, if another four points were accrued in the 90 days after that; and, finally, (4) termination, if an employee accrued four more points within 90 days after the final warning. [Id. ¶ 28].

Stores in the Mid-Atlantic Region measured absenteeism using a different system that defined "absence" as "any time you are scheduled to work and do not report to work or complete your shift." [ECF No. 138 ¶ 30]. Under this system, an employee would have been subject to corrective action for "excessive absenteeism" if they had (1) 12 full or partial absent days, or more than ten separate absences, in any 12-month period; (2) three separate absences in a 30-day period; or (3) five separate absences in a six-month period. [Id. ¶ 31]. Additionally, if an employee was absent for three consecutive days without notice, they were deemed to have voluntarily resigned. [Id. ¶ 33].

Plaintiffs contend, however, that, in practice, points were not strictly or consistently applied under any of these systems and that employees regularly surpassed point thresholds without receiving the corrective action prescribed by the GIGs. [ECF No. 138 ¶¶ 21, 28]. Plaintiffs assert that Team Leaders were given discretion in assigning points if, for example, a tardiness was due to circumstances outside the employee's control. [Id. 138 ¶¶ 23, 27, 28].

Whole Foods also had a national dress code policy that set a baseline standard for all stores but allowed Regional leadership to modify it with stricter standards. [ECF No. 138 ¶¶ 34-35]. The dress code policy prohibited employees from wearing clothing with "any visible slogan, message, logo or advertising," unless it was branded with Whole Foods' logo or that of other Whole Foods affiliates. [Id. ¶ 37]. Employees who violated the policy could be subject to discipline, [id. ¶ 41], but the no-logo rule was seldom enforced, [ECF No. 139 ¶¶ 35, 39, 71, 95], until the summer of 2020, when Whole Foods started "cracking down" on dress code violations, [id. ¶¶ 67-68].

As of April 13, 2020, Whole Foods required all employees to wear a facemask or face covering while in the workplace due to the COVID-19 pandemic. [ECF No. 138 ¶ 39]. Employees were expected to wear facemasks that complied with the dress code's ban on apparel with any non-Whole Foods slogans, though Plaintiffs dispute whether this rule was immediately enforced in all stores and whether it was made clear to all employees. [Id. ¶ 40]. There is no dispute, however, that what followed that summer was an increased enforcement of the dress code by Whole Foods. The impetus for this change, according to Whole Foods, was an increase in dress code violations by retail workers in its stores between April 2020 and June 2020. [Id. ¶ 43]. As of June 22, 2020, store leadership across Regions was directed to handle violations of the dress code with a consistent, progressive discipline policy that gave employees an opportunity to comply or be sent home, which would result in an attendance violation. [Id. ¶¶ 45, 46]. If the policy violations persisted, stores were instructed to follow their usual progressive discipline process. [Id. ¶ 45; ECF No. 110-6 (Barbara Smith Dep.) at 69:24-73:11; 82:7-83:1].

ii. Plaintiff Evans

Evans started working for Whole Foods in March or April 2017 in the Marlton, New Jersey store (the "Marlton Store"), which is in the Mid-Atlantic Region. [ECF No. 138 ¶¶ 4, 47; ECF No. 139 ¶ 41]. Following an unrelated leave of absence, she returned to work on June 16, 2020, and on June 22, 2020 wore, for the first time, a facemask with the words "Black Lives Matter" written across it. [ECF No. 138 ¶¶ 55-57; ECF No. 139 ¶ 42]. Evans, who is Black, wore the Black Lives Matter mask to support the Black community in the wake of the murder of George Floyd by Minnesota police and to speak out against racism at Whole Foods, which she personally experienced. [ECF No. 138 ¶ 59; ECF No. 139 ¶¶ 2, 44]. For its part, Whole Foods insists that when employees first started wearing the Black Lives Matter masks, they did it solely to support the greater Black Lives Matter movement in the wake of George Floyd's murder and not in response to any perceived racism in the workplace. [ECF No. 139 ¶ 2].

Evans asserts that Whole Foods previously failed to address a racist incident against her by a co-worker in February 2019. [ECF No. 138 ¶ 51]. She was baking in the kitchen and burned rolls, and another retail worker came into the kitchen and said, "Those rolls are darker than you." [Id.; ECF No. 139 ¶ 45]; see also [ECF No. 110-1 (Evans Dep.) at 29:2-16; 32:3-37:22]. The remark was reported to supervisors at the Marlton Store, who spoke with the employee who made the comment and issued him a final written warning for his behavior. [ECF No. 139 ¶¶ 52-54]. Evans and other coworkers had also heard another employee, Dante, make numerous racist remarks, including using explicit racial slurs. [ECF No. 130-2 (Evans Dep.) at 38:18-48:25; ECF No. 110-1 (Evans Dep.) at 44:5-23; ECF No. 140-1 (Evans Dep.) at 45:1-24]. Evans did not report Dante's conduct to Whole Foods. [ECF No. 140-1 (Evans Dep.) at 45:22-24].

The first day she wore the Black Lives Matter mask, supervisors at the Marlton Store, including Store Leader Nicholas Polidore ("Polidore"), told her that the mask was not permitted under the dress code policy,⁴ [ECF No. 138 ¶ 61; ECF No. 139 ¶ 42], and that she had to remove the mask or leave, [ECF No. 139 ¶ 42]. She refused to remove the mask and was sent home. [ECF No. 138 ¶ 63; ECF No. 139 ¶ 42]. The next day team leaders at the Marlton Store met with the employees and reminded them that facemasks with writings or slogans not related to Whole Foods violated the store's dress code. [ECF No. 138 ¶ 64].

On the first day she was sent home, Evans was interviewed outside of the Marlton Store and told the reporter that she was being sent home for wearing a Black Lives Matter mask and also recounted her prior racist interaction with a coworker. [ECF No. 139 ¶ 47]. Later that day, Whole Foods received a media inquiry regarding the interview with Evans. [Id.]. The following day, the link to the story was circulated to Whole Foods executives with a comment...