Court reinstates suit by Cambridge Whole Foods worker over firing when she continued to wear a Black Lives Matter face mask

A federal appeals court ruled yesterday that Savannah Kinzer, fired from her job at the Cambridge Whole Foods in 2020, should be allowed to continue her wrongful-termination and discrimination suit against the company.

The ruling by the US Court of Appeals for the First Circuit in Boston overturns a lower-court judge's decision to dismiss a suit by a number of Whole Foods workers across the country who alleged the chain fired them in retaliation for engaging in a "protected" protests against the company's ban on Black Lives Matter face masks in 2020. The appeals court decision applies only to Kinzer; the court denied similar appeals from two other Whole Foods workers, saying they had not shown the same level of proof their firings might have been related to their speech.

At issue in the court's decision was the points system Whole Foods uses to monitor employee infractions for such things as tardiness or dress-code violations. Kinzer, who had taken to protesting the mask edict outside her store and to helping to organize similar protests at other Whole Foods, had wracked up almost enough points to warrant termination - in part by her refusal to wear a blank mask, in supposed violation of the company dress code - when she came into work late one day because, she told her managers, one of her bicycle wheels had been stolen.

That was the violation point that tipped her into firing range, and she was fired - even though the company's own policies said managers could ignore tardiness for good cause, including transportation problems.

This, the court said, would be enough to let Kinzer's attorney argue to a jury that her firing was based on "pretext," that she wasn't really fired for being late, but for continuing to engage in "protected oppositional conduct" against a particular company policy, in this case, its ban on Black Lives Matter masks and protests, and so her case should continue.

[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. 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. The fact that Kinzer had already earned some points is not, as Whole Foods suggests, reason to overlook pretext surrounding her final point. Our caution that "employers are not required to suspend previously planned conduct upon discovering that employees have engaged in oppositional, protected conduct," Frith, 38 F.4th at 277 (quotation marks and alteration omitted), does not, of course, mean that employers may accelerate their disciplinary course due to an employee's protected conduct.

Second, a jury could reasonably be swayed by the testimony of Shealeigh Morgan, Kinzer's supervisor. In her deposition, Morgan stated that Kinzer's firing "could be retaliation," elaborating that "it might have been a different situation" with "that final point" "if [Kinzer] was a different person . . . for example, if she hadn't had the trouble before with being sent home for wearing the Black Lives Matter mask." In other words, if "she was a different team member," maybe then "she wouldn't have been given a point." True, Morgan hedged elsewhere that her suspicion of retaliation was not based on "any factual evidence." Nonetheless, in suggesting that Kinzer might not have been fired if she was a different employee who had not protested Whole Foods' prohibition of BLM masks, Morgan speaks as a member of Whole Foods' management structure generally familiar with Kinzer's situation and the company's attendance policy. Thus, the substance of her testimony provides support for a reasonable jury to conclude that Kinzer "might well have been spared" if she was another employee. ... Instead, Kinzer "received harsher discipline than would be expected" due to her assumed oppositional conduct. Frith, 38 F.4th at 278 n.14.

Third, the jury could find that the behavior of Whole Foods' management towards Kinzer further corroborates Whole Foods' retaliatory animus. Though the district court found that management's intense scrutiny of Kinzer "largely reflects nothing more than personnel's oversight of the matter," ... we do not agree that this is the only conclusion that a rational jury could draw. Kinzer was outspoken and antagonistic towards Whole Foods, fomenting discontent amongst employees and attracting negative attention from the media, the public, and even the parent company. As a result, high-level executives focused on Kinzer as the "activist that has been the self-appointed voice of the group," received regular accounts of her activity, gossiped about her potential to sue, considered her the "main agitator," and sought to bar her from other store locations. A subset of these executives met for an hour to discuss Kinzer's termination and exercised final approval over the decision.

Lastly, the timing of Kinzer's termination, "follow[ing] hard on the heels of [Kinzer's] protected activity" lends some support to Kinzer's retaliation theory. ... As we have discussed, Kinzer engaged in a flurry of protected oppositional and participatory activity, all of which occurred just days or weeks prior to her termination. Indeed, in addition to her persistent mask wearing, organizing, and public criticism of Whole Foods, Kinzer had filed administrative charges of workplace discrimination days before her termination, and Bonin admitted the executives discussed a legal action by Kinzer while deliberating her fate. In Collazo, we similarly noted that a succession of multiple protected acts in the weeks leading up to the adverse action supported the employee's showing of retaliatory animus at the pretext stage.

And so, the court concluded:

In sum, on this record, there is a genuine dispute as to whether Kinzer's final attendance point was imposed pursuant to the normal application of Whole Foods' time and attendance policy within the framework of its progressive disciplinary system, or whether Whole Foods assessed that point and terminated Kinzer because of her protected conduct. It is the province of a jury to decide such a dispute. Thus, summary judgment against Kinzer was unwarranted.