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).

- 3 - 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."

- 4 - 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."

- 5 - 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.,

, 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,

(1st Cir. 2016) (quoting Pietras v. Bd. of Fire Comm'rs,

(2d Cir. 1999)). We therefore do not address this issue further.

- 6 - 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.,

, 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."

. 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."

.

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."

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

- 7 - 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.,

(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,

(1st

Cir. 2011) (emphasis omitted) (quoting Bell Atl. Corp. v. Twombly,

(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."

(quoting

Twombly,

). 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.

- 8 - with" lawful action.

at 9 (quoting Twombly,

).

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.'"

(quoting Twombly,

). 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.,

(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,

(1st Cir. 2013) (quoting Ashcroft

v. Iqbal,

(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.

(quoting

Iqbal,

); see also SEC v. Tambone,

(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.

- 9 - 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,

(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.,

(11th Cir. 1986).

- 10 - (quoting Watson v. Fort Worth Bank & Tr.,

(1988)). A disparate treatment claim is a claim of intentional

discrimination. See Ray v. Ropes & Gray LLP,

(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.,

(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.,

(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,

(quoting Watson,

),

"[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,

(1st Cir. 2014). We do not understand appellants to be making disparate impact claims, and we do not discuss this type of claim further.

- 11 - Garayalde-Rijos v. Mun. of Carolina,

(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.,

(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,

(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.

. The Court held that such employment

actions are "because of such individual's" sex and are thus

prohibited by Title VII's plain language.

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

- 12 - employment action must have been taken "because of" the race of

the individual plaintiff. See Bostock,

.

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,

(3d Cir. 2021); Hively v. Ivy Tech

Cmty. Coll. of Ind.,

(7th Cir. 2017) (en banc);

Barrett v. Whirlpool Corp.,

(6th Cir. 2009);

Deffenbaugh-Williams v. Wal-Mart Stores, Inc.,

, 588-

89 (5th Cir. 1998), vacated in part on other grounds by Williams

v. Wal-Mart Stores, Inc.,

(5th Cir. 1999) (en banc)

(per curiam); Parr v. Woodmen of the World Life Ins. Co.,

(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.

- 13 - 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.

(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.

. 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,

("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.,

(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,

.

- 14 - 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,

. 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."

(6th Cir.

2000); see also Barrett,

. 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:

- 15 - 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,

. 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

(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").

- 16 - 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.

(emphasis added);

.

- 17 - 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

- 18 - 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,

; Iqbal,

. 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,

(quoting Twombly,

). 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

- 19 - 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,

(1st Cir. 2003) (describing "evidence that the plaintiff was treated differently than other similarly situated employees" as "[o]ne method" for showing disparate treatment).

- 20 - 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,

(quoting Twombly,

) -- 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,

(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,

(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,

- 21 -

(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

- 22 - 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,

(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,

)). 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,

(1st Cir. 2011) (quoting Twombly,

); see also Foisie v. Worcester Polytechnic Inst.,

(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.

- 23 - 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,

, 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.

- 24 - 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.,

(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,

.

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.,

(2009)

(defining the statutory term "opposed"). Title VII also protects

- 25 - 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,

(quoting Fantini v. Salem State

Coll.,

(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.

- 26 - 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,

(1st Cir. 2012); see also Muñoz v.

Sociedad Española de Auxilio Mutuo y Beneficiencia de P.R.,

(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,

(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

- 27 - 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.,

(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.

. The dicta in Planadeball does not support the broad proposition that protesting societal

- 28 - 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.

- 29 - 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."

- 30 - McIntyre v. RentGrow, Inc.,

(1st Cir. 2022)

(Lynch, J., concurring in the judgment) (quoting PDK Lab'ys Inc.

v. U.S. Drug Enf't Admin.,

(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.

- 31 -