1st Circuit allows suit by fired worker who refused to remove Black Lives Matter face mask
A federal appeals court on Wednesday revived a lawsuit alleging that Whole Foods Market retaliated against a worker who protested the company’s ban on Black Lives Matter face masks for employees. (Image from Shutterstock)
A federal appeals court on Wednesday revived a lawsuit alleging that Whole Foods Market retaliated against a worker who protested the company's ban on Black Lives Matter face masks for employees.
The 1st U.S. Circuit Court of Appeals at Boston said jurors should decide whether worker Savannah Kinzer was fired for protected conduct or for violating Whole Foods Market’s dress code and attendance policy.
Reuters has the story on the April 24 decision.
The Whole Foods Market dress code barred employees from wearing masks with “any visible slogan, message, logo or advertising.” Employees who showed up wearing Black Lives Matter masks were told to correct the issue or go home.
Those who went home were marked as absent and assessed a point for the infraction in the region where Kinzer worked in Cambridge, Massachusetts. The accumulation of too many points would ultimately lead to firing under the company’s progressive disciplinary system.
Kinzer was fired in July 2020 after repeatedly refusing to take of her mask and being sent home as a result. She claimed that Whole Foods Market allowed workers to wear apparel depicting sports teams, political phrases or support for the LGBTQ+ community. But it cracked down on masks, she alleged.
Kinzer also organized protests outside her store that attracted news attention and criticized the Whole Foods Market policy on social media.
The last disciplinary infraction that led to Kinzer’s firing was for being late to work because her bicycle tire was stolen. Whole Foods Market had a policy that excuses tardiness for good reason or tardiness. Yet it assessed a disciplinary point, which led to firing under the progressive discipline system.
Kinzer’s suit began as a proposed class action challenging the ban on Black Lives Matter attire. The 1st Circuit tossed the class action claims in 2022 because the allegations failed to show that Whole Foods Market’s dress code was motivated by race, according to Reuters.
Senior Judge Kermit V. Lipez, an appointee of former President Bill Clinton, wrote the unanimous panel opinion Wednesday. The appeals court allowed Kinzer’s claims but dismissed claims by two other workers for lack of proof.
Kinzer was “an outspoken critic of the company whose termination arguably deviated from Whole Foods’ disciplinary process,” Lipez wrote.
“A reasonable jury could conclude that Whole Foods deviated from its ordinary criteria and terminated Kinzer because of a disciplinary point that was not warranted,” Lipez wrote. “Such a finding would, in and of itself, support Kinzer’s argument that the disciplinary point was pretext obscuring the company’s true retaliatory motive.”
