Frith v. Whole Foods Market, Inc.

United States Court of Appeals
For the First Circuit
No. 21-1171
SUVERINO FRITH, et al.,
Plaintiffs, Appellants,
SAVANNAH KINZER and CHRISTOPHER MICHNO,
Plaintiffs,
v.
WHOLE FOODS MARKET, INC.; AMAZON.COM, INC.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Allison D. Burroughs, U.S. District Judge]
Before
Thompson and Lipez, Circuit Judges,
and Torresen, District Judge.
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.
 Of the District of Maine, sitting by designation.
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.
June 28, 2022
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).
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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
1 While the focus of the suit is on mask-wearing, employees
also wore other items bearing the Black Lives Matter message, such
as pins, sneakers, and t-shirts. For simplicity, we will refer to
all apparel as "face masks" or "masks."
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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
2 One plaintiff was directly employed by Amazon as a "Prime
Shopper" working in a Whole Foods store. Appellants allege that
Prime Shoppers were not previously expected to follow the Whole
Foods dress code policy, but that, after employees began wearing
Black Lives Matter apparel, "Amazon changed its policy to require
that its Prime Shoppers comply with the Whole Foods dress code."
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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
3 Before dismissing appellants' suit for failure to state a
claim, the district court dismissed the claims of the non-Amazon
employees against Amazon because they had "made no allegations
regarding Amazon"; dismissed the claims by the one Amazon employee
against Whole Foods because she had "made no allegations regarding
Whole Foods"; and dismissed the claims of one plaintiff for failure
to allege that she had worn any Black Lives Matter apparel at work
or had been disciplined for attempting to do so. Frith v. Whole
Foods Market, Inc., 517 F. Supp. 3d 60, 68 (D. Mass. 2021). On
appeal, appellants do not challenge these decisions by the district
court.
For their part, appellees do not challenge the district
court's decision to waive the administrative exhaustion
requirement for those plaintiffs who had not yet obtained right-
to-sue letters from the EEOC. Possession of a right-to-sue letter
is "simply 'a precondition to bringing' suit, not a jurisdictional
bar, and thus 'can be waived by the parties or the court.'"
Martínez-Rivera v. Puerto Rico, 812 F.3d 69, 77-78 (1st Cir. 2016)
(quoting Pietras v. Bd. of Fire Comm'rs, 180 F.3d 468, 474 (2d
Cir. 1999)). We therefore do not address this issue further.
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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
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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 (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). 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
4 The district court did not dismiss the individual
retaliation claim of Savannah Kinzer, who is not party to this
appeal. Kinzer was terminated after she informed Whole Foods
management that she had filed discrimination and retaliation
charges with the EEOC.
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with" lawful action. Id. at 9 (quoting Twombly, 550 U.S. at 554).
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). 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 (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); 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.
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III.
Appellants claim that, by enforcing the dress code
policy to prohibit Black Lives Matter face masks, Whole Foods
engaged in racial discrimination against both the Black and non-
Black employees who wore those masks. Applying de novo review, we
ultimately reach the same conclusion as the district court that
appellants have failed to adequately plead their claim. However,
because our reasoning differs somewhat from that of the district
court, we provide a more fulsome explanation of our understanding
of appellants' discrimination claims in the context of Title VII
law.
A. Background Law
Title VII prohibits an employer from "discriminat[ing]
against any individual with respect to his compensation, terms,
conditions, or privileges of employment[] because of such
individual's race, color, religion, sex, or national origin." 42
U.S.C. § 2000e-2(a)(1).5 This prohibition encompasses "disparate
treatment" discrimination, "where an employer has 'treated [a]
particular person less favorably than others because of' a
protected trait." Ricci v. DeStefano, 557 U.S. 557, 577 (2009)
For simplicity, we will refer to employers and employees,
5
although Title VII also prohibits prospective employers from
failing to hire a person because of that person's protected
characteristic. See, e.g., Parr v. Woodmen of the World Life Ins.
Co., 791 F.2d 888, 892 (11th Cir. 1986).
- 10 -
(quoting Watson v. Fort Worth Bank & Tr., 487 U.S. 977, 985-86
(1988)). A disparate treatment claim is a claim of intentional
discrimination. See Ray v. Ropes & Gray LLP, 799 F.3d 99, 112
(1st Cir. 2015).6 The application of a facially neutral policy
may constitute disparate treatment where an employer uses the
facially neutral policy as a pretext to engage in intentional
discrimination. Hayes v. Shelby Mem'l Hosp., 726 F.2d 1543, 1547
(11th Cir. 1984) (noting the theory of disparate treatment where
"an employer adopts what appears to be a facially neutral policy,
but one which a plaintiff contends is a 'pretext' for forbidden
discrimination"), disapproved on other grounds by Int'l Union,
United Auto., Aerospace & Agr. Implement Workers of Am. v. Johnson
Controls, Inc., 499 U.S. 187 (1991).
Although to ultimately succeed on the claim, "[a]
disparate-treatment plaintiff must establish 'that the defendant
had a discriminatory intent or motive' for taking a job-related
action," Ricci, 557 U.S. at 577 (quoting Watson, 487 U.S. at 986),
"[w]e have explicitly held that plaintiffs need not plead facts in
the complaint that establish a prima facie case under Title VII,"
6 In contrast, a "disparate impact" claim involves
unintentional discrimination whereby a neutral policy or
employment practice has a disparate impact on members of a
protected class. See Jones v. City of Boston, 752 F.3d 38, 46
(1st Cir. 2014). We do not understand appellants to be making
disparate impact claims, and we do not discuss this type of claim
further.
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Garayalde-Rijos v. Mun. of Carolina, 747 F.3d 15, 24 (1st Cir.
2014). Rather, the complaint simply must contain facts that
"plausibly allege" that the plaintiff experienced a discriminatory
employment action. Morales-Cruz v. Univ. of P.R., 676 F.3d 220,
224 (1st Cir. 2012) (emphasis added).
Central to any analysis of a Title VII discrimination
claim is the Supreme Court's 2020 decision in Bostock v. Clayton
County, 140 S. Ct. 1731 (2020). In Bostock, the Court considered
whether Title VII prohibits employment actions taken at least in
part on the basis of a plaintiff's sexual orientation or gender
identity. Id. at 1737, 1741. The Court held that such employment
actions are "because of such individual's" sex and are thus
prohibited by Title VII's plain language. Id. at 1738 (quoting 42
U.S.C. § 2000e-2(a)(1)); id. at 1743. As the Court explained,
"[i]f the employer intentionally relies in part on an individual
employee's sex when deciding to discharge the employee -- put
differently, if changing the employee's sex would have yielded a
different choice by the employer -- a statutory violation has
occurred." Id. at 1741.
We take from the Court's analysis in Bostock, which is
rooted in Title VII's language, that when assessing a Title VII
discrimination claim, the proper focus is on the protected
characteristic of the individual plaintiff. In other words, to
constitute unlawful racial discrimination under Title VII, an
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employment action must have been taken "because of" the race of
the individual plaintiff. See Bostock, 140 S. Ct. at 1739-40.
This focus on the race of the plaintiff may seem obvious
when it comes to the typical Title VII discrimination claim, where,
for example, a plaintiff claims that she was discriminated against
because she is Black. But courts have also been faced with so-
called "associational" discrimination claims, which present more
complex questions concerning the purported racial motive of the
employer and the race of the affected employee.
Although we have not previously assessed Title VII
claims premised on a theory of associational discrimination, other
circuits have recognized this type of claim. See, e.g., Kengerski
v. Harper, 6 F.4th 531, 538 (3d Cir. 2021); Hively v. Ivy Tech
Cmty. Coll. of Ind., 853 F.3d 339, 349 (7th Cir. 2017) (en banc);
Barrett v. Whirlpool Corp., 556 F.3d 502, 512 (6th Cir. 2009);
Deffenbaugh-Williams v. Wal-Mart Stores, Inc., 156 F.3d 581, 588-
89 (5th Cir. 1998), vacated in part on other grounds by Williams
v. Wal-Mart Stores, Inc., 182 F.3d 333 (5th Cir. 1999) (en banc)
(per curiam); Parr v. Woodmen of the World Life Ins. Co., 791 F.2d
888, 892 (11th Cir. 1986). In the typical associational
discrimination claim, an employer purportedly disapproves of a
social relationship between an employee and a third party on the
basis of a protected characteristic and has taken an employment
action based on that disapproval.
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For example, in Holcomb v. Iona College, the Second
Circuit recognized a Title VII associational discrimination claim
brought by a white man who alleged he was fired because of his
marriage to a Black woman. 521 F.3d 130, 139-40 (2d Cir. 2008).
Significantly, the Second Circuit noted that "where an employee is
subjected to adverse action because an employer disapproves of
interracial association, the employee suffers discrimination
because of the employee's own race" in addition to the race of the
other person, like the Black spouse, who may not even be a party
in the suit. Id. at 139. Thus, although associational claims
like the one in Holcomb appear quite different from the typical
Title VII discrimination claim, such claims are fundamentally
consistent with Bostock and Title VII's plain language prohibiting
action "because of such individual[]" plaintiff's race. See id.;
see also Parr, 791 F.2d at 892 ("Where a plaintiff claims
discrimination based upon an interracial marriage or association,
he alleges, by definition, that he has been discriminated against
because of his race."); Zarda v. Altitude Express, Inc., 883 F.3d
100, 124 (2d Cir. 2018) (en banc) (holding that, in the context of
associational discrimination, "when an employer fires a gay man
based on the belief that men should not be attracted to other men,
the employer discriminates based on the employee's own sex"), aff'd
sub nom. Bostock, 140 S. Ct. 1731.
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We note that the Sixth Circuit has recognized a claim
for discrimination under Title VII based on one's "advocacy on
behalf of protected class members." Barrett, 556 F.3d at 513. In
Johnson v. University of Cincinnati, where the plaintiff, who
happened to be Black, alleged that he was fired due to his
"advocacy on behalf of minorities," the Sixth Circuit opined, "the
fact that [p]laintiff has not alleged discrimination because of
his race is of no moment inasmuch as it was a racial situation in
which [p]laintiff became involved." 215 F.3d 561, 575 (6th Cir.
2000); see also Barrett, 556 F.3d at 514. In other words, unlike
an associational claim, the race of the plaintiff is irrelevant
for purposes of this "advocacy" theory of discrimination -- all
that matters is the race of the persons on whose behalf the
advocacy is occurring. Title VII's language, as discussed in
Bostock, forecloses such a theory, which essentially replaces the
textual "because of such individual's race" with the atextual
"because of such individual's advocacy for protected individuals."
That said, it would be a mistake to doubt the continuing viability
of associational discrimination claims merely because some courts
may have pushed the concept beyond the bounds of Title VII.
B. Appellants' Discrimination Claims
Appellants frame their discrimination claims in the
complaint as follows:
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The conduct of Whole Foods in selectively enforcing its
dress code policy to ban employees from wearing Black
Lives Matter masks and related apparel . . . constitutes
unlawful discrimination based on race, because the
policy 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, or attempting to wear, the Black Lives Matter
masks at work.
These claims certainly could have been stated more clearly.
However, considered in the context of the entire complaint and
Title VII law, we understand appellants to allege that Whole Foods,
in enforcing the dress code policy, intentionally (1)
discriminated against Black employees based on their race;7 (2)
discriminated against employees based on their advocacy for their
7 Appellants do not precisely allege what they believe
motivated Whole Foods' purported racial discrimination against its
Black employees -- that is, whether Whole Foods was motivated by,
for example, a general animus against Black people, or by
disapproval of Black people expressing opinions on issues of
importance to the Black community. As the Supreme Court made clear
in Bostock, however, Title VII prohibits treating employees less
favorably than they would otherwise be treated "because of" their
race, regardless of the precise nature of the racial motivation.
See Bostock, 140 S. Ct. at 1743-44. A plaintiff is not required
to plead, for example, that an employer was motivated by racial
animus, and an employer may violate Title VII even if its reason
for engaging in racial discrimination is less invidious than
antipathy toward a given race. See id. at 1743 (discussing Supreme
Court precedent holding that an employer engaged in Title VII
discrimination based on sex when it required female employees to
make larger pension fund contributions than male employees "on the
ground that women tend to live longer than men, and thus are likely
to receive more from the pension fund over time").
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Black coworkers; and (3) discriminated against employees based on
their association with their Black coworkers.8
Regarding their "advocacy" allegation, appellants
appear, in their briefing, to ask us to adopt a broad theory of
discrimination, based on the cases from the Sixth Circuit, that
treats the race of individual plaintiffs as irrelevant if they
were advocating on behalf of Black people in society or their Black
coworkers at Whole Foods. As they explain this theory, the
relevant race for purposes of the Title VII discrimination analysis
is the race of the people on whose behalf the advocacy is
happening, and the race of the advocates themselves is irrelevant.
Or, as they put it, "the race of [d]efendants' Black employees is
'imputed' to non-Black employees who advocated on behalf of" their
Black colleagues. As we have explained, the language of Title VII
and its explication in Bostock foreclose this approach.9
8 Although we will focus on plaintiffs' advocacy and
associational theories as they apply to non-Black employees, the
complaint can be read to also bring advocacy and associational
claims on behalf of Black employees. There is nothing in the
language of Title VII that would categorically foreclose an
associational claim based on a Black employee's association with
Black coworkers or other Black people.
9Throughout their briefing, appellants also generally assert
that the race of the plaintiffs -- whether Black or non-Black --
is irrelevant to their discrimination claim. This proposition
fails for the same reason as their "advocacy" theory. That is, as
Bostock makes clear, discrimination must be "because of such
individual's" race to be actionable under Title VII. 140 S. Ct.
at 1738 (emphasis added); id. at 1743.
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However, we think that plaintiffs' other allegations --
that the company discriminated against Black employees based on
their race and discriminated against non-Black employees based on
their association with their Black coworkers -- are technically
viable. Just as the language of Title VII and its explication in
Bostock do not foreclose an associational claim rooted in an
employer's disapproval of an interracial spousal relationship,
Title VII does not necessarily foreclose an associational claim
rooted in an employer's disapproval of its non-Black employees'
support of Black coworkers.
Unlike the district court, then, we do not think that
appellants have failed to allege that the race of the individual
plaintiffs was a motivation for the discrimination. Nor do we
think their discrimination claims fail because they have not
specifically identified the race of each plaintiff or because they
have not identified specific relationships between Black and non-
Black coworkers. It is clear from the complaint that appellants
all fall into one of two categories, Black employees who are
subject to racial discrimination and non-Black employees who are
subject to racial discrimination. Perhaps most importantly, we do
not think the fact that both Black and non-Black employees were
disciplined for wearing Black Lives Matter masks undercuts the
discrimination claim. If an employer discriminates both against
Black employees based on their race and against non-Black employees
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based on their status as non-Black people associating with Black
people, that employer "doubles rather than eliminates Title VII
liability." Bostock, 140 S. Ct. at 1742–43 ("[T]he law makes each
instance of discriminating against an individual employee because
of that individual's sex an independent violation of Title VII.
So . . . an employer who fires both Hannah and Bob for failing to
fulfill traditional sex stereotypes doubles rather than eliminates
Title VII liability . . . .").
In short, appellants have pleaded discrimination claims
that are, conceptually, consistent with Title VII. But such claims
cannot be wholly conclusory to survive a motion to dismiss. See
Tambone, 597 F.3d at 442; Iqbal, 556 U.S. at 678. As we have
explained, a complaint's factual allegations must be sufficient to
take a claim beyond the realm of pure conjecture, that is, "across
the line from conceivable to plausible." Ocasio-Hernández, 640
F.3d at 9 (quoting Twombly, 550 U.S. at 570). And it is here that
appellants' claims fail.
Before we explain this failure, however, it is necessary
to clarify appellants' repeated reference to Whole Foods'
"selective enforcement" of its dress code policy. The term is
evocative of the type of "comparator" evidence that is often used
to prove a Title VII claim -- that, for example, a Black employee
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was treated differently than a similarly situated white employee.10
Yet appellants do not allege that, once Whole Foods began enforcing
its previously unenforced dress code policy around June 2020, the
company applied the policy selectively. They have not alleged,
for example, that once Whole Foods began enforcing the policy, the
company disciplined only the wearing of Black Lives Matter apparel
and did not discipline other violations. Appellants do allege
that, at some point after the onset of the pandemic, Whole Foods
did not discipline employees for wearing masks depicting SpongeBob
SquarePants, images and names of vegetables, and prints. However,
the complaint does not allege that these instances of non-
enforcement occurred after Whole Foods began generally enforcing
the policy around June 2020. Moreover, it is not at all clear
that these other masks violated the policy, which prohibits
"slogans, messages, logos, or advertising."
Appellants' discrimination claims, then, are less about
"selective enforcement" and more about suspicious timing. They
appear to be claiming that Whole Foods used enforcement of its
existing policy as a pretext to racially discriminate against the
Although comparator evidence may provide powerful support
10
for a claim of disparate treatment, the existence of a similarly
situated employee is not a required element of a Title VII
discrimination claim. See Kosereis v. Rhode Island, 331 F.3d 207,
214 (1st Cir. 2003) (describing "evidence that the plaintiff was
treated differently than other similarly situated employees" as
"[o]ne method" for showing disparate treatment).
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employees wearing the Black Lives Matter face masks. In support
of this reading of Whole Foods' actions, appellants allege that
Whole Foods only began enforcing the dress code policy after its
employees began wearing the face masks. And they allege that
"Black Lives Matter" is a message concerning racial issues and
representing a social movement to improve conditions for Black
Americans. But these facts alone simply do not take appellants'
claims across the plausibility threshold. Rather, these facts,
even considered in the light most favorable to appellants, support
an "obvious alternative explanation," Ocasio-Hernández, 640 F.3d
at 9 (quoting Twombly, 550 U.S. at 567) -- that Whole Foods was
targeting the display by employees of the "Black Lives Matter"
message for non-race-based reasons rather than targeting the
employees "because of" their race, see Bostock, 140 S. Ct. at 1738
(quoting 42 U.S.C. § 2000e-2(a)(1)).
Specifically, a reasonable inference can be drawn from
appellants' factual allegations that Whole Foods started enforcing
its previously unenforced dress code policy so that it could
prohibit employees from wearing Black Lives Matter masks in its
stores. See Saccoccia v. United States, 955 F.3d 171, 172 (1st
Cir. 2020) (court must "draw[] all reasonable inferences" in
appellants' favor). Common sense, however, suggests that Whole
Foods would have had non-race-based reasons in June 2020 for
prohibiting the wearing of Black Lives Matter masks. See Iqbal,
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556 U.S. at 679 (assessing plausibility is "a context-specific
task that requires the reviewing court to draw on its judicial
experience and common sense"). At that time, the coronavirus
pandemic had created the conditions for employees to easily and in
a highly visible fashion display non-company messages at work. It
is logical that Whole Foods would have a different perspective on
enforcing its dress code policy in the era of employee mask-
wearing. To this point, as appellants appear to acknowledge with
their references to engaging in a "protest," the wearing of the
Black Lives Matter masks appears to have been a more coordinated
and widespread effort than previous displays by Whole Foods
employees of, for example, support for the LGBTQ+ community.
Moreover, rightly or wrongly, Black Lives Matter was seen as a
controversial message associated with a political movement
advancing an array of policy proposals. Thus, the timing of Whole
Foods' decision to begin enforcing its existing policy may be
explained by the "obvious alternative explanation" that Whole
Foods did not want to allow the mass expression of a controversial
message by employees in their stores.11
Appellants essentially ask us to infer that Whole Foods'
motive for targeting the display of the Black Lives Matter message
As noted, appellants pleaded that Whole Foods posted on its
11
website, "Racism has no place here" and "We support the black
community and meaningful change in the world." These allegations
are consistent with the obvious alternative explanation that, in
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by employees was to target the individuals espousing the message
-- and that this targeting was "because of" the race of these
individuals. But they have not pleaded any factual allegations
pointing in that direction and away from the "obvious alternative
explanation" we have identified. See Air Sunshine, Inc. v. Carl,
663 F.3d 27, 37 (1st Cir. 2011) ("As between [these] 'obvious
alternative explanation[s]'" for the purportedly unlawful conduct
and the "purposeful, invidious discrimination [plaintiff] asks us
to infer, discrimination is not a plausible conclusion.") (quoting
Iqbal, 556 U.S. at 682)). We cannot infer racial discrimination
based on factual allegations that are "just as much in line with"
the non-discriminatory explanation we have identified. Ocasio-
Hernández, 640 F.3d at 9 (1st Cir. 2011) (quoting Twombly, 550
U.S. at 554); see also Foisie v. Worcester Polytechnic Inst., 967
F.3d 27, 52 (1st Cir. 2020) (noting "the proposition that the
plausibility standard is not satisfied when allegations of
misconduct are equally consistent with some innocent
explanation").
The "obvious alternative explanation" we have identified
-- that Whole Foods wanted to prohibit the mass display of a
controversial message in its stores by its employees -- could
prohibiting the employee masks, Whole Foods was not expressing
dislike of the pro-Black aspect of the "Black Lives Matter" message
but was simply motivated to control the manner of dissemination of
such a message in its stores.
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perhaps raise free speech concerns.12 But, of course, because
Whole Foods is a private employer, there is no First Amendment
claim here. We can imagine a viable claim that an employer has
prohibited workplace speech as a pretext for discriminating
against individual employees because of their race. Nothing in
this decision should be read to foreclose such a claim. But, in
this case, appellants' allegations simply do not support a
plausible inference that Whole Foods' prohibition on employees'
displaying the Black Lives Matter message in their stores was a
pretext for racially discriminating against the individual
employees. For this reason, the district court did not err in
dismissing appellants' Title VII discrimination claims.
IV.
Appellants also assert retaliation claims under Title
VII, alleging that Whole Foods' "discipline of [its] employees for
opposing [its] discriminatory policy in not allowing employees to
wear Black Lives Matter masks while working at Whole Foods
locations constitutes unlawful retaliation in violation of Title
Indeed, the district court and appellees rightly note that
12
appellants' discrimination claims have the flavor of First
Amendment claims asserting content-based discrimination. Although
they resist this characterization, appellants themselves heavily
rely on a First Amendment decision, Amalgamated Transit Union Local
85 v. Port Authority of Allegheny County, 513 F. Supp. 3d 593, 597
(W.D. Pa. 2021), which dealt with a prohibition on the wearing of
masks with "political or social-protest messages" by public
transit employees.
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VII." They allege that, after Whole Foods began to enforce the
dress code, their continued wearing of Black Lives Matter masks
became, in part, a protest of what they perceived to be racial
discrimination in Whole Foods' decision to enforce the policy.
Thus, they contend, when Whole Foods continued to discipline them
for wearing the masks, that discipline constituted unlawful
retaliation under Title VII.
Before addressing these claims, we briefly set forth the
law governing protected conduct under Title VII's retaliation
provision. To state a prima facie case of retaliation, appellants
must demonstrate "that (1) [they] engaged in protected conduct;
(2) [they were] subjected to an adverse employment action; and (3)
the adverse employment action is causally linked to the protected
conduct." Rivera-Rivera v. Medina & Medina, Inc., 898 F.3d 77, 94
(1st Cir. 2018). As with racial discrimination claims, appellants
need not establish all elements of the prima facie case in their
complaint. They must simply allege facts that give rise to a
plausible inference that retaliation occurred. Garayalde-Rijos,
747 F.3d at 24.
Protected conduct consists of actions taken in
opposition to "any practice made an unlawful employment practice
by" Title VII. 42 U.S.C. § 2000e-3(a); see also Crawford v. Metro.
Gov't of Nashville & Davidson Cnty., 555 U.S. 271, 276-78 (2009)
(defining the statutory term "opposed"). Title VII also protects
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those who protest employer conduct not proscribed by Title VII if
the employee has a "good faith, reasonable belief that the
underlying challenged actions of the employer violated the law."
Morales-Cruz, 676 F.3d at 226 (quoting Fantini v. Salem State
Coll., 557 F.3d 22, 32 (1st Cir. 2009)). However, employees who
seek the protection of Title VII's retaliation provision must
allege opposition to some aspect of their employment or the conduct
of their employer.13
As described above, appellants' retaliation theory is
premised on their allegation that, at some point after Whole Foods
began prohibiting the wearing of Black Lives Matter masks at work,
they wore the masks to oppose what they believed to be
The requirement that the employees' opposition be directed
13
toward an aspect of their employment dooms a version of appellants'
retaliation claims that is only developed in their briefing. In
addition to relying on mask-wearing in opposition to enforcement
of the dress code, appellants suggest that their initial wearing
of the Black Lives Matter face masks was protected conduct under
Title VII and, as such, was another appropriate basis for their
retaliation claim. However, as described above, the complaint
does not identify any unlawful employment practice by Whole Foods
that appellants initially were opposing.
Rather, the complaint generally states at various points that
employees wore the face masks to "protest[] racism and
discrimination in the workplace," and to "demand . . . better
treatment of Black employees in the work place." The complaint
also states that appellants asked for racial demographic data "to
help determine whether Black employees are receiving promotions
fairly" and asked that armed guards be removed to ensure that Black
employees were comfortable in the workplace. These general
allegations do not connect the mask-wearing to any specific policy,
practice, or action by Whole Foods that violated, or that
appellants could reasonably believe violated, Title VII.
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discriminatory enforcement of the dress code. But appellants must
plausibly allege that Whole Foods' continuing enforcement of its
dress code policy was caused by their oppositional conduct -- i.e.,
that any retaliatory discipline was distinguishable from the pre-
existing and ongoing discipline of employees simply for wearing
the Black Lives Matter masks. The need to demonstrate that
distinct treatment is simply a function of logic: "to establish
that an adverse employment action was caused by an employee's
protected activity, the employer's decision to act adversely to
the employee must postdate the protected activity." Trainor v.
HEI Hosp., LLC, 699 F.3d 19, 27 (1st Cir. 2012); see also Muñoz v.
Sociedad Española de Auxilio Mutuo y Beneficiencia de P.R., 671
F.3d 49, 56 (1st Cir. 2012) ("Absent special circumstances . . .
an adverse employment decision that predates a protected activity
cannot be caused by that activity.").
Moreover, as the Supreme Court has recognized, employers
are not required to "suspend previously planned [conduct] upon
discovering that" employees have engaged in oppositional,
protected conduct. Clark Cnty. Sch. Dist. v. Breeden, 532 U.S.
268, 272 (2001). Thus, because employees cannot prove retaliation
by pointing to a course of action by an employer that predates the
employees' oppositional conduct, appellants must set forth
plausible allegations differentiating Whole Foods' discipline of
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the protesting employees from its earlier discipline of employees
for violating the dress code.
Appellants' complaint lacks any such allegations.
Appellants allege no more than that Whole Foods began enforcing
the dress code to prohibit Black Lives Matter face masks in June
2020 and, from that point on, consistently enforced its dress code
policy against the mask-wearing.14 Appellants thus fail to allege
the necessary causal relationship between Whole Foods' continuing
enforcement of the dress code policy and their wearing of the masks
to protest that enforcement.15
14 Appellants describe Whole Foods' discipline as "escalating"
during the period in which they wore masks to oppose enforcement
of the policy, pointing out that employees accumulated
disciplinary points for repeatedly wearing the face masks and that
"employees are subject to termination once they accumulate a
certain amount of points." But continuing discipline of an
employee for repeated violations of the dress code is not evidence
that Whole Foods had a retaliatory motive. Appellants have not
alleged, for example, that any employee who wore a Black Lives
Matter mask after the employees began wearing the masks to protest
enforcement of the dress code policy received harsher discipline
than would be expected for simply violating the policy.
15 Insofar as appellants also argue that they engaged in
protected conduct by protesting societal racism, that contention
is not consistent with the case law we have described. Appellants
quote Planadeball v. Wyndham Vacation Resorts, Inc., 793 F.3d 169,
175 (1st Cir. 2015), for the proposition that "protected activity
includes . . . 'protesting against discrimination by industry or
by society in general.'" Planadeball, however, involved a
plaintiff who argued she had engaged in protected conduct by
lodging specific complaints to her supervisors about derogatory
comments, filing a federal complaint, and filing charges of
discrimination with the Puerto Rico Department of Labor's Anti-
Discrimination Unit. Id. at 175-76. The dicta in Planadeball
does not support the broad proposition that protesting societal
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V.
Ultimately, the outcome of this case says nothing about
the importance of the "Black Lives Matter" message, the objectives
of the Black Lives Matter movement, the value of appellants'
actions in wearing Black Lives Matter masks, or the wisdom of Whole
Foods' response to those actions. Rather, the case simply turns
on whether appellants have adequately pleaded claims for racial
discrimination and retaliation under Title VII. Because
appellants have not done so, we affirm the district court's
dismissal of their claims.
So ordered.
-Concurring Opinion Follows-
issues can, on its own, provide the basis for a Title VII
retaliation claim.
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TORRESEN, District Judge, concurring in part and
concurring in the judgment. While I join the bulk of the opinion,
I part ways with the majority when it comes to Part III.B, the
analysis of appellants' discrimination claim. As Part III.A of
the opinion explains, the discrimination proscribed by Title VII
is discrimination that occurs because of the race (or other
protected characteristic) of the individual plaintiff(s) bringing
the lawsuit. In my view, that is where the plaintiffs'
discrimination claim falters. The amended complaint fails to state
a claim for discrimination under Title VII because it fails to
allege sufficient facts to allow for an inference that Whole Foods
treated the plaintiff employees differently because of their
races. That is, the amended complaint alleges that all Black and
non-Black employees were subjected to the same discipline for the
exact same reason –- for wearing Black Lives Matter masks, a reason
unrelated to any of the plaintiffs' races. What the amended
complaint does not allege is that Whole Foods discriminated against
any particular plaintiff based on "such individual's race" (under
either a direct discrimination or associational discrimination
theory). It is thus unnecessary to rely on the idea that an
"obvious alternative explanation" to race discrimination can be
identified, because, as the district court held, the allegations
are themselves insufficient to state a claim. "If it is not
necessary to decide more, it is necessary not to decide more."
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McIntyre v. RentGrow, Inc., 34 F.4th 87, 101 (1st Cir. 2022)
(Lynch, J., concurring in the judgment) (quoting PDK Lab'ys Inc.
v. U.S. Drug Enf't Admin., 362 F.3d 786, 799 (D.C. Cir. 2004)
(Roberts, J., concurring)). I would affirm based on the district
court's reasoning that the plaintiffs' allegations demonstrate
that Whole Foods treated all employees wearing Black Lives Matter
masks equally, regardless of their races.
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