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Judge upholds Whole Foods’s firing of workers who wore Black Lives Matter masks 

A federal judge on Monday tossed a lawsuit from three former Whole Foods employees alleging the grocery chain unlawfully retaliated against them for opposing a workplace ban on Black Lives Matter masks.

U.S. District Judge Allison Burroughs granted summary judgment in favor of Whole Foods, finding it didn’t treat the workers differently than similarly situated ones who violated its dress code policy when the chain stepped up enforcement in mid-2020.

“This holding is not about the importance of the Black Lives Matter message, the value of Plaintiffs’ advocacy in wearing the masks, the valor of their speaking out against what they perceived to be discrimination in their workplace, or the quality of Whole Foods’ decision-making,” ruled Burroughs, an Obama-appointed judge.

“It is about whether the record can support three retaliation claims under Title VII,” she continued. “Here, the Court finds that no reasonable jury could conclude by a preponderance of the evidence that Whole Foods’ reasons for Plaintiffs’ terminations were pretextual and motivated by discriminatory animus.”

Many Whole Foods employees began wearing Black Lives Matter masks following the May 2020 murder of George Floyd, violating the company’s dress code, which prohibits clothing containing any visible messages or slogans unless it was branded with Whole Foods’s logo.

The disputes gained significant media attention, and a group of employees who wore the masks filed a civil rights lawsuit against the Amazon-owned business in July 2020.

Burroughs previously dismissed nearly all of their claims in a ruling later upheld by an appeals panel, but she left alive one claim of unlawful retaliation brought by a former employee at a Cambridge, Mass., store.

Monday’s order tossed out that claim, which was augmented by two additional claims of retaliation by former Whole Foods workers in New Jersey and California.

Prior to their firings, the three employees had either filed legal complaints or threatened to do so, conducted press interviews bashing Whole Foods’ dress code or led employee protests against the policy.

They argued Whole Foods unlawfully retaliated against them for the protected conduct, in part noting that Whole Foods deviated from its normal termination procedures by involving senior executives.

“Plaintiffs have not identified any similarly situated employee who violated the dress code policy in a similar manner during this time and was treated differently than Plaintiffs,” Burroughs ruled. “The evidence demonstrates only that Whole Foods did not strenuously enforce the dress code policy until mid-2020, and that when it increased enforcement, it did so uniformly.”

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