Whole Foods Workers Seek Expedited Review of Discovery Order Before First Circuit in Discrimination Class Action

Earlier this week, employees of Amazon-owned Whole Foods Market Inc. sought review of a trial court’s order requiring one of the named plaintiffs to turn over group messages exchanged with co-workers in a civil rights case. The plaintiffs claim that the grocer discriminated against them for showing support for Black employees and protesting racism in the workplace by wearing “Black Lives Matter” masks.

The complaint was filed in the District of Massachusetts in the summer of 2020 following demonstrations around the country protesting police violence and other discrimination. The filing explains that when Whole Foods employees, required to wear face masks at work due to the outbreak of the COVID-19 pandemic, showed solidarity for the cause by wearing masks imprinted with the message, the company disciplined them.

Allegedly, such employees at Whole Foods locations around the country were sent home without pay while others accrued demerit points or were terminated pursuant to company’s dress code policy. The lawsuit asserts that the company took these actions despite its alleged support for the Black Lives Matter cause. The complainants seek relief from violations of Title VII of the Civil Rights Act of 1964 and ask for injunctive relief and damages, including back pay for terminated workers.

This week’s appeal concerns a ruling made by Judge Allison D. Burroughs in December, requiring a plaintiff to produce the messages at issue. The court weighed arguments that Whole Foods’ discovery request violates sections of the National Labor Relations Act (NLRA) barring employers from interfering with collective bargaining or mutual aid activities.

Judge Burroughs’ decision recounts how, once the plaintiffs initially received an unfavorable ruling, they filed a National Labor Relations Board (NLRB) charge asking it to determine whether Whole Foods’ discovery request interferes with employees’ “concerted activity” in violation of the NLRA. Thereafter, and in their bid to change the court’s mind, the plaintiffs asked Judge Burroughs to either deny the request or defer the decision until the NLRB spoke on the matter.

The court declined to deny Whole Foods’ request after finding that the discovery was relevant and not privilege-protected. “Plaintiffs’ mere assertion that messages that provide case ‘updates’ somehow equate to ‘concerted activity efforts,’ without further evidence, is insufficient to warrant any protection given Defendant’s reasonable interest,” the opinion said.

Next, Judge Burroughs rejected arguments that she need wait for and defer to the NLRB. Citing precedent, the decision said that the court is imbued with the power to regulate the discovery before it and in this case, is not required to adhere to an agency decision.

The plaintiffs are represented by Lichten & Liss-Riordan P.C. and Whole Foods by Morgan, Lewis & Bockius LLP and Primmer Piper Eggleston & Cramer PC.