In recent news, the 1st U.S. Circuit Court of Appeals has revived a former Whole Foods employee’s claim that she was fired in retaliation for protected oppositional behavior. Plaintiff Savannah Kinzer worked at a Cambridge, MA Whole Foods in 2020, during which time she repeatedly violated dress code by wearing a Black Lives Matter face mask despite company policy that masks could not bear “any visible slogan, message, logo or advertising.” Kinzer claims that enforcement of the dress code was often inconsistent during her time at Whole Foods; however she was often subject to a progressive disciplinary policy for violations.
Under the policy, Kinzer was often sent home and docked with “attendance points” for wearing a Black Lives Matter mask. If allowed to remain working in the store, she received a formal corrective action. The disciplinary policy allows for so many accrued attendance points and corrective actions before termination is allowed. During this disciplinary period, Kinzer organized protests against Whole Foods for not allowing Black Lives Matter masks, and she formed a chat group for employees to expand the protest.
Kinzer was ultimately let go by Whole Foods after calling her supervisor to report she would be late because a tire was stolen from her bicycle. At this time, Kinzer was just one attendance point away from disciplinary termination. Her supervisor assured her that her tardiness would not accrue another attendance point because of leniency for transportation issues beyond an employee’s control. Despite this policy, Kinzer was still terminated from Whole Foods. Now the question remains whether Kinzer’s termination was warranted or in retaliation of protected oppositional and participatory activity.
Pregent Law looks forward to following the developments of this interesting case. My firm specializes in all matters of employment law. If you need a Massachusetts employment lawyer for an employment-related grievance, I encourage you to contact me for a free consultation.
