Pedestrians walk past a Whole Foods supermarket in New York. Credit: Northfoto/ Pedestrians walk past a Whole Foods supermarket in New York. Credit: Northfoto/

Whole Foods was unable to shake a federal job discrimination suit filed by a pro se litigant, after U.S. District Judge Paul Engelmayer of the Southern District of New York agreed to largely adopt a magistrate judge’s report and recommendations.

Last May, Whole Foods asked for summary judgment on Title VII claims brought by Thierno Diallo, a Guinean immigrant who worked in the company’s Midtown East store from September 2012 until December 2015. According to Diallo, he faced discrimination and a hostile work environment from co-workers and supervisors, many of whom were born outside of the U.S. themselves, because of his African heritage.

Things only got worse after he made a complaint to a supposedly confidential tip line, according to Diallo.

He claims he was improperly terminated in 2015 by a store supervisor and a manager he claimed specifically made regular, demeaning statements to him at work. Both sides agreed Diallo’s employment was terminated in early December, after management found he had overstayed his lunch break a few days prior. Diallo acknowledged that was the case, saying that, after using the restroom, he went to pray. He was still fired, he claims.

U.S. Magistrate Judge Kevin Fox recommended that Whole Foods’ summary judgment motion be denied in its entirety, which the grocery chain objected to. Upon review, Engelmayer adopted key portions of Fox’s recommendation, while diverging on state and city law claims that he ultimately agreed to dismissed.

Whole Foods argued that Diallo’s actions, not his national origin, were the reasons for his firing. The grocer wrongly focused in its dispute of Fox’s finding on the fact the unauthorized break was taken, rather than on whether the infraction was the legitimate reason for his firing, Engelmayer found. Diallo’s claims of hostile attitudes toward him, as well as allegations that other team members also overstayed breaks and were not terminated, mean disputable facts remain that require resolution at trial.

Diallo’s failure-to-promote claims were also aimed at by Whole Foods, who argued that Fox ignored the fact Diallo failed to identify which positions he applied for and didn’t receive. But Engelmayer again adopted Fox’s analysis, finding that there remain disputable facts that could show management was so hostile toward Diallo as to effectively deprive him of any reasonable hope of a promotion, or the opposite, thus requiring the suit to move forward.

Lastly, Whole Foods argued Diallo disputed Fox’s finding that his hostile work environment and retaliation claims were not abandoned. The company argued the conduct Diallo claims amounted to little more than petty slights or stray remarks, without evidence that it was continuous—both threshold issues on the work environment claim. Likewise, Diallo faced no adverse action after making his complaint, defeating the retaliation claim, according to Whole Foods.

Engelmayer stood behind Fox’s analysis, finding that Diallo’s claims were substantial. The district judge did note that the hostile work environment claims “present[] a close question” of law in the Second Circuit, but agreed that a fact finder could potentially find for Diallo, while the tip line complaint and subsequent lack of promotion and firing could sway a jury toward the retaliation claim.

Engelmayer did break with Fox over New York state and city human rights law claims, agreeing with Whole Foods that Diallo is barred, as he may have potentially sought administrative relief and failed to show the court that that wasn’t the case.

Diallo did not respond to a request for comment.

Whole Foods was represented by Greenberg Traurig shareholder Eric Sigda and of counsel Michael Slocum. Neither responded to a request for comment.


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