Kinzer v. Whole Foods Market, Inc.

99 F.4th 105

• Court: Court of Appeals for the First Circuit
• Decided: April 24, 2024
• Docket: 23-1100
• Status: Published

Opinion

United States Court of Appeals For the First Circuit

Nos. 22-1064 23-1100

SAVANNAH KINZER, individually and on behalf of all others similarly situated; HALEY EVANS, individually and on behalf of all others similarly situated; CHRISTOPHER MICHNO, individually and on behalf of all others similarly situated,

Plaintiffs, Appellants,

SUVERINO FRITH, individually and on behalf of all others similarly situated; CEDRICK JUAREZ, individually and on behalf of all others similarly situated; FAITH WALSH, individually and on behalf of all others similarly situated; MACKENZIE SHANAHAN, individually and on behalf of all others similarly situated; COREY SAMUEL, individually and on behalf of all others similarly situated; ABDULAI BARRY, individually and on behalf of all others similarly situated; LINDSAY VUONG, individually and on behalf of all others similarly situated; SAMANTHA BERIMBAU, individually and on behalf of all others similarly situated; CAMILLE TUCKER-TOLBERT, individually and on behalf of all others similarly situated; ANA BELEN DEL RIO-RAMIREZ, individually and on behalf of all others similarly situated; LYLAH STYLES, individually and on behalf of all others similarly situated; KAYLA GREENE, individually and on behalf of all others similarly situated; SHARIE ROBINSON, individually and on behalf of all others similarly situated; JENNIFER OSAYANDE, individually and on behalf of all others similarly situated; BRITNEY IFEBOHR, individually and on behalf of all others similarly situated; KANAYA RYLAND, individually and on behalf of all others similarly situated; KIRBY BURT, individually and on behalf of all others similarly situated; LEAVER MICHEL, individually and on behalf of all others similarly situated; SUEPRIYA ADHI, individually and on behalf of all others similarly situated; ALICE TISME, individually and on behalf of all others similarly situated; CHARLES THOMPSON, individually and on behalf of all others similarly situated; CASSIDY VISCO, individually and on behalf of all others similarly situated; KELLY RIGLER, individually and on behalf of all others similarly situated; JUSTINE O'NEILL, individually and on behalf of all others similarly situated; SARITA WILSON, individually and on behalf of all others similarly situated; YURIN LONDON, individually and on behalf of all others similarly situated,

Plaintiffs,

v.

WHOLE FOODS MARKET, INC.,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Allison D. Burroughs, U.S. District Judge]

Before

Kayatta, Lipez, and Thompson, Circuit Judges.

Shannon Liss-Riordan, with whom Matthew Carrieri and Lichten & Liss-Riordan, P.C., were on brief, for appellants. Michael L. Banks, with whom Andrew M. Buttaro, Terry D. Johnson, and Morgan, Lewis & Bockius LLP, were on brief, for appellee. David P. Boehm, Attorney, National Labor Relations Board, with whom Jennifer A. Abruzzo, General Counsel, Nancy E. Kessler Platt, Associate General Counsel, Dawn L. Goldstein, Acting Deputy Associate General Counsel, Polly Misra, Supervising Attorney, and Madeline Corkett, Attorney, were on brief for the National Labor Relations Board, amicus curiae.

April 24, 2024 LIPEZ, Circuit Judge. In the summer of 2020, amid

pandemic mask mandates and nationwide racial justice protests,

Whole Foods Market, Inc. ("Whole Foods") began disciplining

employees who wore facemasks to work supporting the Black Lives

Matter movement, citing its dress code. Suspecting Whole Foods of

discrimination for singling out the pro-Black message, the three

plaintiff-appellants ("the Employees") persisted in wearing these

masks, among taking other actions, until the company terminated

them, ostensibly for repeated violations of the dress code or

attendance policy. The Employees sued under Title VII, alleging

retaliation. Determining that no reasonable factfinder could

conclude that Whole Foods' stated reasons for firing the Employees

concealed retaliatory animus, the district court granted Whole

Foods' motion for summary judgment against all three. We hold

that summary judgment was improper against one of the Employees,

Savannah Kinzer, an outspoken critic of the company whose

termination arguably deviated from Whole Foods' disciplinary

process, but we affirm the court's holding as to both Haley Evans

and Christopher Michno.

The Employees also ask us to review a discovery order

compelling the production of communications whose confidentiality

they argue is protected by the National Labor Relations Act. We

decline to reach the merits of that issue, however.

- 3 - I.

Our review of a district court's summary judgment

decision is de novo. Gerald v. Univ. of P.R., 707 F.3d 7, 16 (1st

Cir. 2013). Our task is to determine whether the movant is

"entitled to judgment as a matter of law" because "there is no

genuine dispute as to any material fact." Fed. R. Civ. P. 56(a).

A genuine dispute is one which "a reasonable jury could

resolve . . . in the favor of the non-moving party," and a material

issue is one with the "potential to affect the outcome . . . under

the applicable law." Cherkaoui v. City of Quincy, 877 F.3d 14,

23-24 (1st Cir. 2017) (quoting Sánchez v. Alvarado, 101 F.3d 223,

227 (1st Cir. 1996)).

Our analysis "look[s] to all of the record materials on

file, including the pleadings, depositions, and affidavits,"

without evaluating "the credibility of witnesses nor weigh[ing]

the evidence." Ahmed v. Johnson, 752 F.3d 490, 495 (1st Cir.

2014). "[W]e recite the facts in the light most favorable to the

non-moving party," drawing all reasonable inferences in the

Employees' favor. Harley-Davidson Credit Corp. v. Galvin, 807

F.3d 407, 408 (1st Cir. 2015). The "test for summary judgment is

steeped in reality," however, and thus the Employees cannot rely

on "conclusory allegations, improbable inferences, and unsupported

speculation." Ellis v. Fid. Mgmt. Tr. Co., 883 F.3d 1, 7 (1st

- 4 - Cir. 2018) (quoting Medina-Munoz v. R.J. Reynolds Tobacco Co., 896

F.2d 5, 8 (1st Cir. 1990)).

We also presume some familiarity with our decision in

Frith v. Whole Foods Mkt., Inc., 38 F.4th 263 (1st Cir. 2022), in

which we affirmed the dismissal of certain Title VII retaliation

and discrimination claims challenging Whole Foods' enforcement of

its dress code against Black Lives Matter masks.

A. Factual Background

This case arises from the convergence of two historic

events unfolding in the summer of 2020: the COVID-19 pandemic,

which made it necessary to wear facemasks in public, and widespread

racial justice protests sparked by the murder of George Floyd. In

June of 2020, Whole Foods workers at stores across the country

began wearing masks to work bearing the slogan "Black Lives Matter"

("BLM"). Management reprimanded these employees, citing the

company's dress code. The events underlying this appeal followed,

as the Employees resisted the prohibition of BLM masks and allege

that Whole Foods fired them in retaliation for their efforts.

1. Whole Foods' Dress Code and Disciplinary Process

Whole Foods employs a "corrective action process" to

manage employee relations, a system of progressive discipline

consisting of verbal and written reprimands as employees commit

disciplinary infractions. Generally, the termination of an

employee is preceded by a succession of formal "corrective

- 5 - actions," including a verbal warning, one or more written warnings,

and a "final written warning."1 Excessive tardiness or absenteeism

and dress code violations are infractions subject to this process.

Whole Foods' dress code prohibits apparel displaying

messages or brands not affiliated with the company. In April of

2020, when it first mandated that employees wear masks, Whole Foods

clarified that masks must be without "any visible slogan, message,

logo or advertising." After seeing an uptick in dress code

violations related to BLM masks, Whole Foods reiterated the policy

to store managers, reminding them to enforce the dress code

consistently against all noncompliance.

At that time, the company also encouraged its stores to

handle dress code violations through the company's time and

attendance policy. Under this approach, store managers instructed

employees who arrived to work in noncompliance with the dress code

to correct the issue or go home, after giving the employee a

reasonable time to reflect on the decision. Employees choosing to

go home would be deemed absent, and employees who came into

compliance would be subject to no formal discipline. Employees

who remained at work in continued defiance of the dress code -- if

1 Certain serious disciplinary infractions warrant immediate termination or escalation to a final written warning. For instance, an employee who fails to show up for a scheduled shift without calling in the absence (a "No Call/No Show") can be terminated immediately or placed on final written warning, at the store manager's discretion.

- 6 - permitted to do so -- would receive a formal corrective action for

a dress code infraction. Either way, if an employee showed up to

work wearing a BLM mask and refused to replace it, they would be

subject to progressive disciplinary actions, which, eventually,

would lead to termination.

Whole Foods' North Atlantic Region enforces its time and

attendance policy using a points-based system.2 Employees who

arrive late or leave early are "tardy," in Whole Foods' parlance,

and receive one point. Employees who are absent entirely receive

two points. An employee receives a verbal warning upon accruing

5 points within 30 days, a first written warning upon accruing 4

additional points in the ensuing 60 days (or accruing 9 points

within any 90-day period), and a final written warning upon

accruing 4 additional points within 90 days after that. Finally,

an employee is terminated if they accumulate 4 more points within

90 days of receiving a final written warning.

The tardiness policy contemplates several scenarios in

which the company can excuse lateness due to circumstances beyond

the employee's control. First, "Store/Facility Team Leaders may

'forgive' a tardy point . . . for a group if it is apparent that

numerous Team Members suffered tardiness due to the same unforeseen

circumstances." Second, "Store/facility leadership may also, at

2 We recount the policy as applied in Savannah Kinzer's region, unless otherwise specified.

- 7 - their discretion, occasionally allow a Team Member to report late

or leave early for good reason, provided there is no consistent

pattern of such requests." And third, there may be "extenuating

circumstances that should result in waiving points for a Team

Member," and such "exceptions . . . will be examined on a case-

by-case basis, after consultation with Regional Team Member

Services." Though the record does not specify what circumstances

merit leniency, it suggests that transportation breakdowns, such

as train delays or a stolen car, qualify. Moreover, while the

primary decision-making power lies in the hands of store

management, some record evidence indicates that resolving

uncertainty "needs to be done through regional" management or, at

least, regional management is consulted.

2. The Plaintiffs

i. Savannah Kinzer

Kinzer worked at a Whole Foods store in Cambridge,

Massachusetts, in the company's North Atlantic Region, from April

2020 until her termination on July 18, 2020. In her initial weeks

working at Whole Foods, Kinzer observed seemingly lax enforcement

of Whole Foods' dress code. For instance, she saw "[m]any co-

workers . . . w[ear] masks with labels and slogans on them" and

apparel depicting sports teams, political phrases, or support for

the LGBTQ+ community. Kinzer herself wore a mask with the phrase

"Soup is good" without reprimand, and she also wore ripped jeans

- 8 - and bike shorts, for which she was verbally reprimanded but was

not otherwise disciplined.3

Kinzer decided to start wearing a BLM mask at work in

late June of 2020. She said she did so both to express support

for the Black community and to protest Whole Foods' discipline of

employees who had worn such masks at other stores. The first time

she wore a BLM mask to work, Kinzer's store manager, Scott Duncan,

reprimanded her for wearing the mask and instructed her to replace

it. When she refused, she was "sen[t] home" and received a point

for the resulting early departure. Over the next two weeks, Kinzer

repeatedly wore a BLM mask to work, meeting the same disciplinary

fate on at least six occasions. As a result, Kinzer received a

verbal warning.

Kinzer claimed she persisted in wearing the BLM mask to

"protest[] Whole Foods' discipline" of such masks. Kinzer also

organized her coworkers to join her efforts. She acquired dozens

of masks to distribute to her coworkers and workers at other

locations, leading several other employees to be sent home. Kinzer

also organized protests outside the store that attracted community

members and public officials and received media attention. Many

news reports featured photos of Kinzer or identified her as a

3 Several of Kinzer's coworkers, including her direct supervisor, Shealeigh Morgan, also attested to violating the dress code policy or seeing others do so without being punished prior to June of 2020.

- 9 - leader of the protests. Outside of work, Kinzer organized a "town

hall" with Whole Foods workers from several states and criticized

Whole Foods' policy on social media "non-stop." She also formed

a group chat with coworkers to coordinate further protest activity,

and she created a crowdfunding resource to offset the lost wages

of protesting workers.

Kinzer's activity was well known to Whole Foods'

management. Kinzer presented the regional president, Richard

Bonin, a list of demands related to the mask policy, and she later

sent him a video of an employee-led protest. Both Bonin and

Kinzer's store manager, Duncan, also acknowledged seeing news

coverage of Kinzer, with Duncan identifying Kinzer as part of the

"core group" of employees violating the dress code. The record

shows that Bonin and other executives kept tabs on Kinzer,

referring to her in internal emails as the "main agitator" and

"the activist that has been the self-appointed voice of the group."

Kinzer was also the subject of "scuttlebutt" amongst executives,

including that she had contacted lawyers, and the executives

specifically instructed managers of other locations to turn her

away if she showed up to distribute masks. They also received a

complaint from Amazon, Whole Foods' parent company, about Kinzer

passing out masks at a protest outside another store.

Though Kinzer mainly accumulated attendance points for

wearing a BLM mask, she also received several points unrelated to

- 10 - her protest that proved critical to her termination. On one

occasion, Kinzer was on vacation and forgot to arrange coverage

for her scheduled shift. Her absence was deemed a "No Call/No

Show," for which Kinzer received a final written warning. That

meant that receiving four more attendance points within 90 days

would result in termination. Over the ensuing ten days, Kinzer

received one point for wearing a BLM mask and two more for

tardiness.

On July 18, 2020, Kinzer called her supervisor, Morgan,

to report that she would be late because her bicycle tire had been

stolen. Though her tardiness would result in Kinzer's fourth and

final point, Morgan assured Kinzer that the point should be excused

because the circumstances were beyond Kinzer's control. Despite

Morgan's advocacy, however, Duncan was disinclined to excuse

Kinzer's tardiness and decided to consult with regional management

regarding the matter. Morgan reportedly called Duncan's

hesitation "ridiculous" and continued to try to persuade him to

excuse the point.

Kinzer proceeded to work her shift as normal while the

company deliberated her termination. That morning, several

executives, including Bonin, Whole Foods' vice president for team

member services Barbara Smith, and Whole Foods' executive vice

president Christina Minardi, met regarding Kinzer's termination

for approximately one hour. The details of this meeting are largely

- 11 - unknown, though Bonin stated that "it [came] up that [Kinzer] had

filed a lawsuit." The executives eventually told Duncan that

Kinzer's "point was not to be excused."

In the meantime, Kinzer met with Duncan at least once

during her shift. Kinzer informed Duncan of charges that she had

filed with the Equal Employment Opportunity Commission ("EEOC")

and the National Labor Relations Board ("NLRB"), which she emailed

to him.4 She then returned to work, her fate uncertain. Several

hours later, Duncan summoned Kinzer to his office and explained

that Whole Foods was terminating her because she had accrued too

many disciplinary points.

ii. Haley Evans

Evans worked at a Whole Foods in Marlton, New Jersey, in

the company's Northeast Region, from April 2017 until her

termination on August 1, 2020.5 Sometime during her employment at

Whole Foods, Evans complained to management about a racist remark

4The record contains some inconsistency regarding the number of meetings and the timing of Kinzer's email, and Duncan maintains that he decided to terminate Kinzer before knowing of the charges. Although the record supports either version of events, we must construe the facts in Kinzer's favor. See Harley-Davidson Credit Corp., 807 F.3d at 408. Thus, we accept here that Kinzer informed Duncan of the charges no later than 12:38 PM but was not fired until later that day, and, in any event, Whole Foods executives discussed "that she had filed a lawsuit" when deciding she should be fired. 5Evans took about two months of approved leave at the onset of the pandemic, from March 2020 until mid-June.

- 12 - directed at her from a coworker, who compared her skin color to

burnt rolls. The coworker received a final written warning, which

Evans felt was inadequate.

In mid-June 2020, Evans arrived at work with a mask

stating "No Justice, No Peace," a slogan used within the Black

Lives Matter movement. Evans was not disciplined, and she

subsequently wore the mask to several more shifts without incident.

Around this time, Evans witnessed other store members wearing masks

with the logos of sports teams. Evans also perceived enforcement

of the dress code to be lax prior to the pandemic. For instance,

though the dress code prohibited them, she regularly wore leggings

and yoga pants, and she had worn non-compliant shirts.

Evans first wore a mask saying "Black Lives Matter" a

few weeks later, and she was directed to remove it. During that

conversation, Evans said that an assistant store manager, Nick

Polidore, told her that wearing a BLM mask was like wearing a mask

saying "f*** you." When Evans refused to change her mask, she was

sent home and marked absent. That day, Evans reached out to a

local news station and was interviewed about the mask incident,

and she also described the racist remark about her skin color.

Whole Foods knew of her interview.

The next day, store management met with employees to

inform them that their masks could not have non-company-affiliated

writing or logos on them. Evans also observed a "crack down" on

- 13 - dress code violations, which she believed was driven by Whole

Foods' desire to suppress her BLM mask without appearing

inconsistent.

Despite the prohibition, Evans wore a BLM mask to every

successive shift until her termination around a month later. Each

time Evans arrived with a BLM mask, management instructed her to

change. When she refused, management sent her home.6 On July 8,

2020, she received a written warning due to three absences in 30

days, in accordance with regional policy, and she accrued yet

another absence that day. Evans received a final written warning

on July 25, 2020, meaning she would be terminated with three more

absences within 30 days. On July 29, 2020, Evans registered her

third such absence, all of which were due to her BLM mask. Evans

was advised that she and store management would discuss separation

at Evans's next shift. On August 1, 2020, Evans met with the store

manager, Carol Kingsmore, who gave Evans her termination notice

and separation papers. During this meeting, Evans informed

Kingsmore that the day before, July 31, 2020, she had joined the

class action lawsuit against Whole Foods as a named plaintiff.7

6Evans was also marked absent twice for calling out of scheduled shifts. On one such occasion, Evans came in to discuss the policy with a manager, who told her, evidently incorrectly, that she could wear a BLM shirt, but not a mask. This episode reinforced Evans's sense that the dress code was inconsistently enforced. While the parties dispute whether Evans informed Kingsmore 7

of the lawsuit before or after receiving her separation papers,

- 14 - In addition to wearing a BLM mask to work, Evans made

other efforts to protest Whole Foods' policy. She encouraged other

employees to defy the rule, though she was unsuccessful. Evans

also tried to organize a protest, which she ultimately decided

against staging because her coworkers feared retaliation. Evans

also filed a workplace discrimination charge with the EEOC, which

she signed on July 24, 2020, though the record does not clarify

whether Evans informed Whole Foods of the charge prior to her

termination.

iii. Christopher Michno

Michno worked at a Whole Foods in Berkeley, California,

in the company's Northern California Region, from March 2017 until

his termination on September 13, 2020. Prior to the summer of

2020, Michno estimated wearing shirts with non-Whole-Foods-

affiliated logos and slogans as frequently as "every day to every

other day" without reprimand. He also recalled coworkers,

including managers, displaying the logos of sports teams with

similar frequency.

Michno first wore a BLM mask to work in late June or

early July of 2020, explaining he was motivated in part by the

reprimand of a Black coworker for displaying a Black Lives Matter

sign at his desk. Several of his coworkers also wore BLM masks to

Evans agreed in her deposition that she did not inform anyone in the company about the lawsuit prior to that meeting.

- 15 - protest that coworker's discipline. Michno wore a BLM mask five

or six times over the next two weeks without incident.

On July 16th, however, the store manager, Kelly Fox,

instructed Michno to remove his BLM mask, reportedly saying that

displaying the phrase "Black Lives Matter" could be as offensive

to customers as displaying a Ku Klux Klan symbol. Michno also

received a verbal corrective from two other individuals in store

management, and approximately one week later he received a formal

written corrective action notice.8 On the form confirming receipt

of the corrective action, Michno wrote:

BLACK LIVES MATTER and asking team members to remove their "BLM slogans" is not inclusive of all identities & skin tones. This is a racist policy & I hold myself accountable to create a safe space in my work environment where we are inclusive and accommodate everyone. [A]ll lives don't matter until BLACK LIVES MATTER & I plan to continue to strive for an ANTIRACIST work environment [at Whole Foods].

Aside from a short hiatus, Michno persisted in wearing

a BLM mask to work every day, continuing to receive corrective

actions in line with Whole Foods' progressive disciplinary system.

Michno received a second corrective action notice on September 7,

2020, and on September 9, 2020, Michno received a final written

warning. When signing that warning, Michno wrote:

8Rather than refusing a compliant mask and going home, Michno completed his shifts in a BLM mask. Thus, his corrective actions reflect dress code violations, not absences.

- 16 - I will continue to wear black lives matter and use my privilege to advocate for my fellow BLACK coworkers who are systematically oppressed and face discrimination in our own workplace for expressing that their lives matter. This is not political or controversial and purely an exclamation of the sacredness of black lives.9

Michno continued to wear a BLM mask to work until being terminated

on September 13, 2020.

Michno also protested the policy in other ways. On

social media, he accused Whole Foods of "covert racism" and

"silencing team members," sharing photos of his first corrective

action and his BLM mask. He also joined protests outside of the

store, carrying a sign that said "Whole Foods is racist." In

addition to informing his manager, Fox, that his continued mask

wearing was to protest the policy, he also told her he had retained

counsel and was considering suing. Michno did not take any

official legal action until after being terminated, filing

discrimination charges with the EEOC and the NLRB about a week

later.

9 In response to Michno's allegation that his coworkers had experienced discrimination, a human resources representative, Jessica Charney, reached out to Michno for more information. Michno explained that he referred to three coworkers who had complained to him about unfair treatment because they were Black, two for being disciplined unfairly and one for losing out on promotions, but Michno would not name the specific individuals. Charney could not confirm these allegations in her subsequent investigation.

- 17 - B. Procedural Background

In Frith, we considered Title VII claims brought by a

putative class of Whole Foods employees alleging that Whole Foods'

enforcement of its dress code policy against BLM masks was racially

discriminatory. While we held that the plaintiffs' discrimination

theory was "technically viable," 38 F.4th at 273, we affirmed the

district court's dismissal of that claim because their allegations

failed to show that Whole Foods' enforcement of its dress code was

motivated by race rather than the "obvious alternative

explanation" that the store wanted to prevent the "mass expression

of a controversial message by employees in their stores," id. at

275 (first quoting Ocasio-Hernández v. Fortuño-Burset, 640 F.3d 1,

9 (1st Cir. 2011)). We also rejected the plaintiffs' theory that

Whole Foods' enforcement of the policy was in retaliation for their

protests of the BLM mask prohibition, as they had not "set forth

plausible allegations differentiating Whole Foods' discipline of

the protesting employees from its earlier discipline of employees

for violating the dress code." Id. at 277-78.

We did not consider, however, Kinzer's individual

retaliation claim, which had survived Whole Foods' motion to

dismiss. See id. at 269 n.4; see also Frith v. Whole Foods Mkt.,

Inc., 517 F. Supp. 3d 60, 74-75 (D. Mass. 2021). After Kinzer's

claim survived, the Employees amended their complaint to add

Evans's and Michno's retaliation claims.

- 18 - The parties proceeded to discovery, during which they

became embroiled in a dispute over whether Kinzer must produce

certain group chat messages between herself and her coworkers.

The district court ordered the production of those messages, and

that determination became the subject of an interlocutory appeal.10

While that appeal was pending, Whole Foods moved for

summary judgment against the Employees. The district court granted

Whole Foods' motion in its entirety, stating that "there is little

evidence in the record to refute Whole Foods' legitimate business

explanations for its strict enforcement of its dress code policy"

and "no significant probative evidence that Whole Foods' stated

reasons for its actions concealed any discriminatory animus based

on Plaintiffs' oppositional conduct." Kinzer v. Whole Foods Mkt.,

Inc., 652 F. Supp. 3d 185, 204 (D. Mass. 2023). The Employees

timely noticed their appeal, which we consolidated with the appeal

of the discovery order.

II.

The parties agree that if we affirm summary judgment in

favor of Whole Foods, the discovery issue is moot. Accordingly,

we begin with the Employees' Title VII claims. After explaining

the relevant Title VII principles, we apply them first to Kinzer's

retaliation claim before turning to the others.

10 We recite the facts regarding this dispute in Section III.

- 19 - A. Elements of a Title VII Retaliation Claim

"Title VII expressly forbids not only direct

discrimination, but also retaliation against an individual who has

complained about discriminatory employment practices."

Velazquez-Ortiz v. Vilsack, 657 F.3d 64, 72 (1st Cir. 2011). The

statute protects two forms of conduct: (1) participating in a Title

VII proceeding; and (2) "oppos[ing] any practice made an unlawful

employment practice by [Title VII]." 42 U.S.C. § 2000e-3(a).

To prevail on a retaliation claim, the employee "need

not prove that the conditions against which [s]he protested

actually amounted to a violation of Title VII." Fantini v. Salem

State Coll., 557 F.3d 22, 32 (1st Cir. 2009) (alteration in

original) (quoting Wimmer v. Suffolk Cnty. Police Dep't, 176 F.3d

125, 134 (2d Cir. 1999)). Oppositional conduct need only rest on

a "good faith, reasonable belief that the underlying challenged

actions of the employer violated the law." Id. (quoting Wimmer,

557 F.3d at 32).11

We analyze Title VII retaliation claims under the

burden-shifting framework of McDonnell Douglas Corp. v. Green, 411

U.S. 792, 801-03 (1973). See Planadeball v. Wyndham Vacation

11 There is no similar reasonableness requirement for participatory conduct, see Wyatt v. City of Bos., 35 F.3d 13, 15 (1st Cir. 1994), though we have not "definitively decide[d] whether a plaintiff must engage in protected [participatory] activity in good faith in order to invoke the protections of Title VII," Ray v. Ropes & Gray LLP, 799 F.3d 99, 111 (1st Cir. 2015).

- 20 - Resorts, Inc., 793 F.3d 169, 175 (1st Cir. 2015). First, the

plaintiff must establish a prima facie case by demonstrating that

(1) the plaintiff engaged in protected conduct, (2) the employer

took an adverse employment action, which was (3) in response to

the employee's protected activity. See Medina-Rivera v. MVM, Inc.,

713 F.3d 132, 139 (1st Cir. 2013). From there, "the burden shifts

to the defendant to articulate a legitimate, non-retaliatory

explanation for its actions." Planadeball, 793 F.3d at 175.

Finally, "the plaintiff [must] show that the defendant's

explanation is a pretext for unlawful retaliation." Id.

To survive summary judgment, the Employees "need not

prove retaliation by a preponderance of the evidence." Id. They

need only "raise a genuine issue of fact as to whether retaliation

motivated the adverse employment action." Collazo v. Bristol–

Myers Squibb Mfg., Inc., 617 F.3d 39, 50 (1st Cir. 2010) (quotation

marks and alteration omitted). Within that standard, however, a

reasonable jury must be able to conclude that retaliatory animus

was the but-for cause of the adverse action. See Univ. of Tex.

Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 360 (2013).

B. Kinzer's Retaliation Claim

1. Prima Facie Case

i. Protected Conduct

As noted, Title VII protects both formally participating

in a Title VII proceeding as well as conduct opposing suspected

- 21 - workplace discrimination. Velazquez-Ortiz, 657 F.3d at 72. While

the statute does not define this latter category, the Supreme Court

has construed the opposition clause broadly. See Crawford v.

Metro. Gov't of Nashville & Davidson Cnty., 555 U.S. 271, 276-78

(2009). Thus, "[w]hen an employee communicates to her employer a

belief that the employer has engaged in . . . a form of employment

discrimination, that communication virtually always constitutes

the employee's opposition to the activity," and that act is

protected so long as the conduct would "qualify in the minds of

reasonable jurors as 'resistant' or 'antagonistic' to [the

unlawful employment practice]." Id. (ellipsis in original) (first

emphasis added) (quotation marks and brackets omitted) (citing 2

EEOC Compliance Manual §§ 8–II–B(1), (2) (Mar. 2003)).

Likewise noting that the opposition clause

"sweeps . . . broadly," we have identified numerous examples of

protected oppositional conduct, including "responding to an

employer's inquiries about inappropriate behavior, writing letters

protesting an employer's allegedly unlawful actions, or picketing

and boycotting an employer." Ray, 799 F.3d at 108 (collecting

cases); see also Rodriguez-Vives v. Firefighters Corps of P.R.,

743 F.3d 278, 284 (1st Cir. 2014) ("Even employees who complain of

discrimination to their employers' customers are protected from

retaliation."). Such oppositional conduct need not be verbal, so

- 22 - long as it "effectively and purposefully communicate[s] [the

employee's] opposition." Collazo, 617 F.3d at 47-48.

At the same time, Title VII does not render employers

powerless to enforce nondiscriminatory workplace rules, as "[a]n

employer remains entitled to loyalty and cooperativeness from

employees." Hochstadt v. Worcester Found. for Experimental

Biology, 545 F.2d 222, 230 (1st Cir. 1976). Thus, "an employee's

actions may not be protected under Title VII where they are hostile

[or] disruptive," Velez v. Janssen Ortho, LLC, 467 F.3d 802, 806

(1st Cir. 2006) (citing Hochstadt, 545 F.2d at 230-31), for an

employer retains a "legitimate interest in seeing that its

employees perform their work well," Hazel v. U.S. Postmaster Gen.,

7 F.3d 1, 4 (1st Cir. 1993) (quoting Hochstadt, 545 F.2d at 233).

Applying these principles, the district court concluded

that all of Kinzer's relevant activity, including "protesting

outside of the store, continuing to wear the Black Lives Matter

masks even after being told not to, complaining to management,

[and] speaking to press" was protected. Kinzer, 652 F. Supp. 3d

at 200.

On appeal, Whole Foods concedes -- as it must -- that

Kinzer engaged in protected participatory conduct by filing her

EEOC complaint. See, e.g., Jones v. Walgreen Co., 679 F.3d 9, 21

(1st Cir. 2012). The company appears to dispute, however, that

Kinzer engaged in any protected oppositional conduct. We say that

- 23 - Whole Foods "appears" to take this position because it only does

so implicitly, arguing that Kinzer's sole protected act was her

EEOC complaint. Whole Foods' approach is puzzling, considering

the district court's express holding that all of Kinzer's relevant

conduct (including protesting, persisting in wearing a BLM mask,

complaining to management, and speaking to the press) was protected

and that Kinzer has strenuously argued the same throughout this

litigation, including on appeal. Because Whole Foods has failed

to develop any argument whatsoever explaining why this conduct was

unprotected, we deem it to have waived that issue. See, e.g.,

United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) ("[I]ssues

adverted to in a perfunctory manner, unaccompanied by some effort

at developed argumentation, are deemed waived."); United States v.

Moran, 393 F.3d 1, 12 (1st Cir. 2004) ("Let us be perfectly clear.

There are times when even an appellee who is defending an entirely

favorable judgment must either raise an error purportedly

committed by the district court or waive it.").

Accordingly, for the purposes of this appeal, we will

assume -- as the district court held -- that Kinzer has carried

her burden of establishing that all her relevant activity

protesting Whole Foods' enforcement of its dress code against BLM

masks was protected oppositional conduct. We add this caveat,

however: Our assumption that Kinzer's persistence in wearing a BLM

mask to work to protest Whole Foods' prohibition of them was

- 24 - protected conduct does not endorse her assertion that Whole Foods

retaliated against this particular form of oppositional conduct

merely by continuing to enforce its dress code. As we said in

Frith, "employers are not required to 'suspend previously planned

[conduct] upon discovering that' employees have engaged in

oppositional, protected conduct." 38 F.4th at 277 (alteration in

original) (quoting Clark Cnty. Sch. Dist. v. Breeden, 532 U.S.

268, 272 (2001)). Thus, to show that "Whole Foods' continuing

enforcement of its dress code policy was caused by their

oppositional conduct," the Employees must show that "any

retaliatory discipline was distinguishable from the preexisting

and ongoing discipline of employees simply for wearing the Black

Lives Matter masks." Id. (emphasis added). That limitation

follows directly from the text of Title VII, which prohibits

"discriminat[ion] against" an employee because of protected

oppositional activity. 42 U.S.C. § 2000e-3(a). Plainly enough,

an employer does not discriminate against an employee merely by

enforcing a rule against her just as it would anyone else, even if

she violated the rule to protest it.12

12For the same reason, we reject the Employees' argument that Whole Foods' enforcement of its dress code amounts to direct evidence of retaliation, which, if true, would make the rest of the burden-shifting analysis unnecessary. See, e.g., Rossy v. Roche Prods., Inc., 880 F.2d 621, 625 n.2 (1st Cir. 1989) ("The framework of shifting burdens is inapplicable when the plaintiff presents direct proof of discrimination.").

- 25 - ii. Adverse Action and Causation

Kinzer has also satisfied the remaining elements of her

prima facie case. Kinzer's termination was obviously an adverse

action. See, e.g., Valle–Arce v. P.R. Ports Auth., 651 F.3d 190,

198 (1st Cir. 2011). As for causation, the timing of Kinzer's

termination "alone [is] suffic[ient] to 'meet the relatively light

burden of establishing a prima facie case of retaliation.'"

DeCaire v. Mukasey, 530 F.3d 1, 19 (1st Cir. 2008) (quoting

Mariani–Colón v. Dep't of Homeland Sec. ex rel. Chertoff, 511 F.3d

216, 224 (1st Cir. 2007)). All of Kinzer's protected conduct

happened within a matter of days and weeks before her termination.13

See, e.g., id. (finding satisfactory temporal proximity where

"[a]ll of the events described here took place within a period of

about one year"); Mariani–Colón, 511 F.3d at 224 (three months).

2. Whole Foods' Non-discriminatory Justification

With Kinzer having made her prima facie case, the burden

shifts to Whole Foods to articulate a nonretaliatory explanation

for Kinzer's firing. Planadeball, 793 F.3d at 175. As Whole Foods

notes, Kinzer had obtained enough disciplinary points for poor

attendance to warrant termination. "Uniform application of a

facially neutral policy that proscribes unexcused absences is a

13 Bonin's admission that the executives discussed that "[Kinzer] had filed a lawsuit" before confirming her termination allows a jury to conclude that Whole Foods was aware of Kinzer's participatory conduct when it terminated her.

- 26 - legitimate, non[retaliatory] reason for termination . . . ."

Miceli v. JetBlue Airways Corp., 914 F.3d 73, 82 (1st Cir. 2019).

Hence, Whole Foods has carried its burden.14

3. Pretext

At the third step, Kinzer must "point to specific facts

that would demonstrate" to a reasonable jury that Whole Foods'

invocation of Kinzer's accumulation of attendance points was a

"sham or pretext intended to cover up [Whole Foods'] retaliatory

motive." Calero-Cerezo v. U.S. Dep't of Just., 355 F.3d 6, 26

(1st Cir. 2004). "There is simply 'no mechanical formula'" for

assessing whether an employee has established pretext. Feliciano

de la Cruz v. El Conquistador Resort & Country Club, 218 F.3d 1,

6 (1st Cir. 2000) (quoting Thomas v. Eastman Kodak Co., 183 F.3d

38, 56 (1st Cir. 1999)). "In evaluating whether summary judgment

was proper, therefore, we must weigh all the circumstantial

evidence of discrimination, including the strength of the

plaintiff's prima facie case and the employer's proffered reasons

for its action, mindful that 'everything depends on individual

facts.'" Id. at 7 (quoting Thomas, 183 F.3d at 56).

14The Employees argue that Whole Foods fails to carry its burden by once again asserting that Whole Foods' explanation is, in fact, an admission that it punished the Employees for protected activity by enforcing the dress code. Once again, our holding in Frith forecloses this argument. See 38 F.4th at 277-78.

- 27 - We previewed in Frith what a successful case of pretext

might look like: Kinzer must "differentiat[e] Whole Foods'

discipline of" her, "the protesting employee[,] from its earlier

discipline of employees for violating the dress code." 38 F.4th

at 277-78. For instance, Kinzer might show that after she

"began . . . to protest enforcement of the dress code policy," she

"received harsher discipline than would be expected for simply

violating the policy." Id. at 278 n.14. Kinzer's case for such

"distinct treatment," id. at 277, comes down to the anomalous

circumstances of the accumulation of her final point in Whole

Foods' disciplinary scheme, resulting in the termination of her

job.

Recall that Kinzer was late to work because her bicycle

tire was stolen. As discussed, Whole Foods' policy recognizes

that tardiness may be excused "for good reason" or due to

"extenuating circumstances." In practice, the record supports the

proposition that transportation issues beyond an employee's

control, such as a stolen bicycle tire, call for such leniency.

For example, Bonin testified that a car accident or stolen car

could be a reason to waive a tardiness point. Likewise, Morgan

stated that a train delay, among other things "not in the team

member's control," is a reason to excuse tardiness. Indeed, Morgan

assured Kinzer that she should not get a point, and she advocated

- 28 - as much to Duncan, reportedly calling his inclination to enforce

the point "ridiculous." Kinzer received the point anyway.

We encountered a similar situation in Travers v. Flight

Servs. & Systems, Inc., 737 F.3d 144 (1st Cir. 2013). There, when

assessing an employer's nonretaliatory justification that "left

room for judgment and discretion," we found summary judgment

unwarranted because the record allowed a jury to conclude that the

employee "might well have been spared . . . but for a desire to

get rid of him." Id. at 148. Comparably here, a jury would have

several reasons to conclude that Whole Foods chose not to excuse

Kinzer's final disciplinary point because, motivated by

retaliatory animus, they wanted to get rid of her.

First, "[e]vidence that the employer deviated from its

standard procedure or policies in taking an adverse employment

action against a plaintiff may be relevant to the pretext inquiry."

Rodríguez-Cardi v. MMM Holdings, Inc., 936 F.3d 40, 50 (1st Cir.

2019). Accordingly, in Acevedo-Parrilla v. Novartis Ex-Lax, Inc.,

696 F.3d 128, 142-43 (1st Cir. 2012), we found relevant evidence

showing that an employee's "dismissal deviated from . . . [the]

progressive disciplinary program" the employer ordinarily

undertook. As described above, 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

- 29 - 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."15 True, Morgan hedged elsewhere

that her suspicion of retaliation was not based on "any factual

15It is not clear whether Morgan's statement refers only to Kinzer's persistence in wearing a BLM mask or Kinzer's broader course of oppositional conduct. As Morgan's words could reasonably bear either meaning, we resolve the ambiguity in Kinzer's favor. We nonetheless note that because we assume that Kinzer's mask wearing was protected oppositional conduct, see supra, even read narrowly Morgan's statement would support a reasonable jury's finding of retaliation.

- 30 - 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. Travers, 737 F.3d at 148. 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," Kinzer, 652 F.

Supp. 3d at 203 n.13, 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

- 31 - locations.16 A subset of these executives met for an hour to

discuss Kinzer's termination and exercised final approval over the

decision.17

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. Collazo, 617 F.3d at 50

(quoting Noviello v. City of Bos., 398 F.3d 76, 86 (1st Cir.

2005)). 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

16We do not suggest that the fact of management's attention to Kinzer's activity is evidence of retaliation. Of course, it is expected that Whole Foods' management would notice Kinzer's agitations, as was likely her goal. Rather, a reasonable jury could conclude from the record that the executives involved in the decision to fire her were not only aware of her activity but also viewed it unfavorably. 17 Whole Foods identifies Duncan, for whom the evidence of retaliatory animus is comparatively scant, as the sole decisionmaker behind Kinzer's termination. While this argument may have force with a jury, it is not the only version of events supported by the record, as Duncan consulted with the executives about the propriety of Kinzer's final point, which they confirmed only after meeting for an hour without Duncan present.

- 32 - 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. See 617 F.3d at 50.

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.

C. Evans's and Michno's Retaliation Claims

In assessing Evans's and Michno's claims, we proceed

directly to pretext, assuming, without deciding, that both

employees have established their prima facie case. See, e.g.,

Lang v. Wal-Mart Stores E., L.P., 813 F.3d 447, 459 (1st Cir. 2016)

(adopting the same approach). As for its nonretaliatory

justification, Whole Foods claims that it terminated both

employees after they exhausted the company's progressive

disciplinary process, Evans for absences stemming from her BLM

mask and Michno for dress code violations.

Evans and Michno present three arguments in support of

their claim that Whole Foods' invocation of its progressive

disciplinary process as the basis for their terminations is a

- 33 - pretext for retaliatory animus. First, they argue that the timing

of events shows retaliatory animus. All of their protected

activity -- primarily, persisting in wearing BLM masks -- occurred

within weeks or months of their terminations, and both also

performed discrete protected acts that immediately preceded their

terminations. Evans joined the lawsuit against Whole Foods the

day before she was fired, and Michno made an internal complaint

about witnessing discrimination only a few days before he was

fired.

While such timing is sometimes probative of retaliatory

animus, see Collazo, 617 F.3d at 50, it "must be considered

alongside the rest of the summary judgment record." Dusel v.

Factory Mut. Ins. Co., 52 F.4th 495, 510 (1st Cir. 2022). Here,

the timing is not suspicious, as both employees were terminated

immediately after they had exhausted Whole Foods' corrective

action process, accruing enough disciplinary infractions, under

Whole Foods' system, to warrant dismissal. Whereas with Kinzer

there is reason that could cause a factfinder to doubt that Whole

Foods assessed her final disciplinary point properly, Evans and

Michno have offered no reason to similarly conclude that Whole

Foods acted prematurely in firing them according to its ordinary

processes. Accordingly, the mere fact that their terminations

also corresponded with protected activity is not cause for alarm.

- 34 - Second, Evans and Michno argue that the involvement of

high-level executives in their terminations suggests pretext,

citing Santiago-Ramos v. Centennial P.R. Wireless Corp., 217 F.3d

46, 55 (1st Cir. 2000). In that case, we noted that

"discriminatory comments . . . made by the key decisionmaker or

those in a position to influence the decisionmaker" may support

pretext. Id. (emphasis added). But the mere involvement of

executives -- without some reason to believe they harbored

retaliatory motive -- does not similarly imply retaliation.

Kinzer's case is illustrative of the distinction. In analyzing

her retaliation claim, we discussed what the executives involved

in her termination said and did that suggested retaliatory

motive -- among other things, they closely scrutinized her every

move due to her protected activity and regarded her as an

"agitator." Those same executives then deliberated on her

termination at length and exercised final approval over the

decision to fire her. Evans and Michno, however, seem to argue

that the mere fact that the executives were involved at all

suggests retaliatory animus. A reasonable jury could not infer

retaliation from that fact alone.

Evans and Michno also insist that the involvement of

Whole Foods executives was suspicious because it was unusual, and

"[d]eviation from established policy or practice may be evidence

of pretext." Brennan v. GTE Gov't Sys. Corp., 150 F.3d 21, 29

- 35 - (1st Cir. 1998). For instance, the involvement of executive vice

president Minardi, who normally does not participate in personnel

matters except in "escalated situation[s]," such as a customer

complaint, violence, or theft, suggests to Evans and Michno a

departure from Whole Foods' ordinary practices.18

In Brennan, a higher-up manager broke with company

protocol governing employee layoffs by directly interfering with

a department head's application of the company's well-established

criteria for choosing which employees to lay off. Id. As a

result, the plaintiff was terminated because he found himself at

the bottom of an ad-hoc ranking of employees produced by that

manager, rather than according to the merit-and-seniority-based

criteria meant to determine layoffs. Id. While such a stark break

with "standard procedure" is "directly relevant

to . . . demonstrating pretext," id., Evans and Michno have made

no similar showing. For one thing, the record is sparse about the

nature of Minardi's involvement in Evans's and Michno's

terminations -- it is not clear what, if anything, she contributed

that made their firings distinct from the ordinary course of events

at Whole Foods. Moreover, Minardi's involvement appears

consistent with her involvement in other "escalated situation[s],"

Though Evans and Michno also note the involvement of other 18

high-level executives, such as the regional presidents and the company's head of human resources, as suspicious, they point to nothing in the record suggesting their involvement was abnormal.

- 36 - considering the brewing controversy surrounding Whole Foods'

policy towards BLM masks. The record thus does not support that

the involvement of higher-ups like Minardi was a break with past

practice suggesting retaliation.

Finally, Evans and Michno argue that they have

established pretext by pointing to examples of "similarly situated

employee[s] [being] treated differently." Benoit v. Tech. Mfg.

Corp., 331 F.3d 166, 174 (1st Cir. 2003). Namely, they claim,

Whole Foods enforced its dress code selectively, as enforcement

was lax before the BLM masks. Our examination of the record,

however, reveals no more convincing examples of selective

enforcement than those we already rejected in Frith. As we

explained there, the plaintiffs had not alleged that "instances of

non-enforcement occurred after Whole Foods began generally

enforcing the policy around June 2020." 38 F.4th at 274. Evans

and Michno still have not done so. They both recount examples of

dress code violations going unchecked prior to their protected

conduct, but they muster no concrete examples of other employees

violating the dress code without being disciplined at the same

time that Evans and Michno were being punished for dress code

violations. To the contrary, Evans testified that her store

imposed a general "crack down" on dress code violations, and

regional executives overseeing Michno's store issued a directive

to "rein . . . in" the dress code, both apparent efforts to improve

- 37 - the consistency of dress-code enforcement and thereby show that

Evans and Michno were not being singled out.

As we explained in Frith, the argument that "Whole Foods

only began enforcing the dress code policy after its employees

began wearing the [BLM] masks" did not establish discriminatory

animus, as it was "logical that Whole Foods would have a different

perspective on enforcing its dress code policy in the era of

employee mask-wearing," in which "employees [could] easily and in

a highly visible fashion display non-company messages at work."

Id. at 275. The "suspicious timing," id., about which Evans and

Michno once again complain, is no more suggestive of retaliation

here than it was of discrimination in Frith.

At bottom, Evans and Michno, unlike Kinzer, point to

nothing in the record suggesting that Whole Foods' discipline of

them deviated from the company's normal disciplinary standards.

Unable to establish that Whole Foods' "justification is

questionable or unworthy of belief," Resare v. Raytheon Co., 981

F.2d 32, 42 (1st Cir. 1992), they have failed to satisfy our

instruction in Frith to show that Whole Foods' supposedly

"retaliatory discipline was distinguishable from the preexisting

and ongoing discipline of employees simply for wearing the Black

Lives Matter masks," 38 F.4th at 277. Evans and Michno have thus

not shown that a reasonable jury could disregard as pretext Whole

Foods' nonretaliatory explanation for their firings. Accordingly,

- 38 - we affirm the district court's grant of summary judgment against

them.

III.

Having revived Kinzer's retaliation claim, we must now

turn to the discovery dispute.

A. Background

During discovery, Whole Foods sought the production of

group chat messages between Kinzer and her coworkers in which

Kinzer provided case updates and also organized her coworkers to

oppose the company's enforcement of the dress code against BLM

masks. The Employees resisted that request, arguing that the group

chat involved "concerted activit[y]" protected by the National

Labor Relations Act ("NLRA"), 29 U.S.C. § 157, creating a

confidentiality interest in the communications that the district

court must consider when ruling on that discovery request. The

Employees' concern was directed primarily at the confidentiality

interests of Kinzer's coworkers, some of whom still worked at Whole

Foods and thus feared that if the company obtained a record of

their involvement in opposing Whole Foods' policy, the company

would retaliate against them.

The Employees pointed out that the NLRB has found that

an employer's discovery-related conduct directed at information

related to activity protected by the NLRA can violate the Act.

See Guess?, Inc., 339 N.L.R.B. 432, 435 (2003) (concluding that an

- 39 - employer's deposition question about names of employees who

attended union meetings violated the Act). And the Employees -- as

well as the NLRB as amicus in this appeal -- further argued that

district courts should consider such legally-recognized

confidentiality interests when making discovery-related rulings.

See, e.g., Va. Dep't of Corr. v. Jordan, 921 F.3d 180, 192 (4th

Cir. 2019) (district court properly considered state-law

confidentiality interest in quashing subpoena); Cazorla v. Koch

Foods of Miss., L.L.C., 838 F.3d 540, 562-64 (5th Cir. 2016)

(district court abused its discretion in failing to consider third-

party and public interests in ordering production of information

related to plaintiffs' immigration status).

Despite these arguments, the district court ordered the

Employees to comply with Whole Foods' discovery request. In doing

so, the court reasoned that because other district courts had

similarly rejected the existence of a "concerted

activity . . . privilege[]," it need not consider whether Whole

Foods' discovery request infringed upon the confidentiality of the

third-party employees.

The Employees entered a notice of appeal regarding the

discovery order, seeking our immediate review under the collateral

order doctrine. They also complied with the district court's

order, however, redacting names and identifying information and

designating the materials as "highly confidential," which, under

- 40 - the protective order governing the litigation, meant that only

Whole Foods' outside counsel could view the messages, even in

redacted form.19

The Employees urge us to hold that the district court

abused its discretion. In addition to resisting the Employees'

arguments on the merits, Whole Foods has consistently challenged

our jurisdiction over the appeal of the discovery order, both when

the Employees sought our interlocutory review and now on appeal of

the summary judgment order.20

B. Jurisdiction of the Discovery Order under the Collateral Order Doctrine

Before we consolidated the two appeals, the parties

disputed whether the Employees' effort to obtain review of the

discovery order pursuant to an interlocutory appeal under the

collateral order doctrine was mooted by the entry of final

judgment. Compare Strahan v. Mass. Exec. Off. of Energy & Env't

Affs., No. 21-1154, 2022 WL 3712302, at *1 (1st Cir. May 6, 2022)

(dismissing interlocutory appeal "as moot in view of the district

19 The district court later overturned that designation, giving Whole Foods access to the redacted messages. 20 When the Employees noticed their interlocutory appeal, we ordered them to show cause for why we should not dismiss the appeal for lack of appellate jurisdiction, an issue which the parties subsequently briefed. We consolidated the two appeals upon the court's entry of summary judgment, instructing the parties to "address finality and all other relevant jurisdictional issues in briefing" this appeal.

- 41 - court's entry of final judgment") with Luo v. Wang, 71 F.4th 1289,

1291 n.2 (10th Cir. 2023) (exercising jurisdiction over appeal of

interlocutory order under the collateral order doctrine despite

district court's intervening entry of final judgment). "[W]e need

not concern ourselves with [this] fine point of appellate

jurisdiction," however. Posada v. Cultural Care, Inc., 66 F.4th

348, 363 (1st Cir. 2023) (finding appellate jurisdiction lacking

on other grounds). That is because, despite our instruction that

the parties address in their briefing the issue of whether we still

had jurisdiction to review the discovery order as a non-final

collateral order, the Employees have made no such effort, directing

their jurisdictional arguments solely at the appeal from summary

judgment.

Our case law makes clear that discovery orders are not

normally reviewable as collateral orders. See, e.g., Bennett v.

City of Bos., 54 F.3d 18, 20 (1st Cir. 1995). In the absence of

any briefing, the Employees have offered no reason to depart from

our usual rule, and, indeed, seem to have abandoned any such

effort. Hence, we have no basis to separately review the discovery

order under the collateral order doctrine in this case, even if

the Employees were correct when they initially contended that the

district court's entry of summary judgment did not, in and of

itself, prevent review of the discovery order as a collateral

order.

- 42 - C. Appeal from Final Judgment

We, of course, have jurisdiction to review non-final

orders that have merged into a final judgment. See Commonwealth

Sch., Inc. v. Commonwealth Acad. Holdings LLC, 994 F.3d 77, 82

(1st Cir. 2021) ("Once a district court enters final

judgment . . . antecedent interlocutory orders typically merge

into the judgment and become subject to appellate review."). The

Employees, however, do not attack the court's discovery order on

the ground that it contributed to the court's erroneous grant of

summary judgment. Indeed, the court's summary judgment order did

not even reference, nor does it appear to have been informed by,

any material disclosed in the messages.

Instead, the Employees urge us to review the discovery

order at this juncture because, the genie out of the bottle, it is

possible that the erroneous discovery order may infect the trial

proceedings to come. Our review of the discovery order premised

on this speculation about a future trial order would be premature.

Ordinarily, "[w]e are . . . disinclined to address . . . matters

in the abstract, on the basis of speculative scenarios about what

may or may not transpire at trial." In re Vázquez-Botet, 464 F.3d

54, 59 (1st Cir. 2006) (per curiam) (declining to exercise mandamus

review premised on testimony that "conceivabl[y]" would not

transpire at trial). After all, "we have emphasized that a 'claim

is not ripe for adjudication if it rests upon contingent future

- 43 - events that may not occur as anticipated, or indeed may not occur

at all.'" Lab. Rels. Div. of Constr. Indus. of Mass., Inc. v.

Healey, 844 F.3d 318, 326 (1st Cir. 2016) (quoting City of Fall

River v. FERC, 507 F.3d 1, 6 (1st Cir. 2007)).

To be sure, when remanding a case to the district court

we sometimes find it necessary to give additional "guidance"

regarding issues "that are likely to resurface" at trial, assuming

those issues were properly presented to us on appeal. United

States v. Gonzalez-Maldonado, 115 F.3d 9, 13 (1st Cir. 1997).

Here, however, the Employees have made no showing that their

concerns regarding the discovery order are likely to recur,

particularly since the district court did not rely on the material

disclosed in the messages at all.

For now, hence, we think that prudence dictates that "it

[is] advisable to await an end-of-case appeal, should one ensue."

Vázquez-Botet, 464 F.3d at 59. If Kinzer does lose at trial due

to evidence disclosed by the disputed discovery order, she will

have the chance for appellate review of the order at that time.

In the meantime, she remains empowered to ask the district court

for further redactions or to limit the use of the messages at

trial.

IV.

In light of the foregoing analysis, we vacate the

district court's grant of summary judgment for Whole Foods as to

- 44 - Kinzer's retaliation claim. We affirm, however, the district

court's grant of summary judgment for Whole Foods as to Evans and

Michno. We dismiss appeal No. 22-1064 for lack of appellate

jurisdiction. We remand this matter to the district court for

further proceedings consistent with this opinion. Costs are

awarded to appellant Kinzer, and all other parties shall bear their

own costs.

So ordered.

- 45 -