Brown v. Whole Foods Market Group, Inc. , 965 F. Supp. 2d 132 ( 2013 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
RANDY BROWN,
Plaintiff,
v. Civil Action No. 13-175 (JEB)
WHOLE FOODS MARKET GROUP,
INC.,
Defendant.
MEMORANDUM OPINION
Pro se Plaintiff Randy Brown is a black man who allegedly suffers from a cognitive
disability that can sometimes disorient him. His unpleasant interactions with the staff of his local
supermarket precipitated this suit against Whole Foods Market Group, Inc., for discrimination on
the basis of disability status and race in violation of the Americans with Disabilities Act and the
Civil Rights Act of 1964. Whole Foods has now filed a Motion to Dismiss Brown’s Complaint,
contending that his claims are infirm under both laws. Agreeing, the Court will grant the
Motion.
I. Background
According to Brown, whose allegations the Court must accept as true at this stage, Whole
Foods employees repeatedly harassed him on account of his race and disability status as he
attempted to shop at the grocery chain’s Foggy Bottom location. See Compl. at 1-2; Am. Compl.
at 1-3. Brown’s disability is a cognitive one that can cause him to become disoriented and
distracted on occasion. See Compl. at 1.
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In his pleadings, Brown alleges several instances of abuse that he suffered at the hands of
Whole Foods staff. In the first incident, on an unspecified date, a cashier asked him, “Wouldn’t
your food stamps buy more at a less expensive store?” Am. Compl. at 1. Brown explained that
he did not receive food stamps, but the cashier, in a voice loud enough to be heard by other
shoppers, insisted that he had seen Brown use food stamps at the store before and ridiculed him
for doing so. Id. Brown complained to the store’s management, and the cashier was reassigned
to stocking shelves, thereafter displaying “open resentment and hostility” whenever he
encountered Brown in the aisles. Id. at 2. Several other employees subsequently made similar
disparaging remarks to Brown. See id.
Another time, in late January 2012, a Whole Foods employee allegedly refused to serve
Brown a sample of deli meat because, he told Brown, he did not believe that he actually intended
to buy the product. See Compl. at 1. The employee eventually offered Brown the meat, but he
used his bare fingers to pass the morsel to him, dispensing with the gloves and napkins typically
used for other customers. See id. When Brown declined to accept the food in such a manner,
the employee shared the story with another staff member while both pointed at Brown and
laughed. See id. at 2. A few days later, that second staff member followed Brown as he browsed
the store, at one point falsely accusing him of stealing olives. See id.
Brown claims that he once again complained to store management about this treatment,
notifying them of his disability, “explain[ing] that the harassment was causing confusion,” and
“ask[ing] that management be aware that [he] was susceptible to confusion in complicated
situations.” Id. He also requested “an accommodation that would allow [him] to receive help
from a manager in order to prevent future problems.” Id.
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In the last alleged incident, on February 4, 2012, Brown returned to the Foggy Bottom
Whole Foods and noticed that a store employee was following and taking pictures of him. See
Am. Compl. at 3. When Brown asked the employee why he was photographing him, the
employee accused Brown of being a thief, told him that he had called the police, and advised him
to leave the Whole Foods and never return. See Compl. at 2. At this, Brown experienced a
panic attack that rendered him incapable of responding. See id. When the police arrived, they
arrested Brown for trespassing and theft, though both charges were ultimately dropped. See id.
at 3.
Brown’s allegations against Whole Foods are divided between two separate Complaints
filed several months apart. The first, filed on February 8, 2013, alleges claims solely under the
Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. See id. at 1-3. The second, an
“Amended” Complaint, filed on June 17, focuses exclusively on the Civil Rights Act of 1964, 42
U.S.C. § 2000a et seq. See Am. Compl. at 1-7. In the interim, Whole Foods filed a Motion to
Dismiss on April 16 that addressed Brown’s ADA claims. See MTD Compl. Upon Brown’s
filing of his Amended Complaint, the Court denied Whole Foods’s Motion without prejudice so
that it could file a new motion to dismiss that would respond to Brown’s new allegations. See
Minute Order, June 20, 2013. Whole Foods, justifiably confused as to whether Brown’s
Amended Complaint was intended to supersede or supplement his original filing, inferred the
former and thus addressed its second Motion to Dismiss solely to Brown’s Civil Rights Act
claims. See MTD Am. Compl.
Because complaints filed by pro se litigants are “h[e]ld to less stringent standards than
formal pleadings drafted by lawyers,” Haines v. Kerner, 404 U.S. 519, 520 (1972), the Court will
treat Brown’s Amended Complaint as supplemental to his first, thereby preserving his initial
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allegations under the ADA in addition to his new Civil Rights Act claims. In fairness to Whole
Foods, however, the Court will also consider the challenges to Brown’s ADA claims contained
in Whole Foods’s April 16 Motion to Dismiss. The Court notes that Brown previously filed a
Response in Opposition to that Motion, see ECF No. 11 (June 17, 2013), as well as a very recent
pleading in the nature of a surreply, see ECF No. 20 (Aug. 28, 2013, Supplemental
Memorandum), both of which the Court will consider.
II. Legal Standard
Under Federal Rule of Civil Procedure 12(b)(6), a court must dismiss a claim for relief
when the complaint “fail[s] to state a claim upon which relief can be granted.” In evaluating a
motion to dismiss under Rule 12(b)(6), the Court must “treat the complaint’s factual allegations
as true and must grant plaintiff the benefit of all inferences that can be derived from the facts
alleged.” Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1113 (D.C. Cir. 2000) (citation and
internal quotation marks omitted); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A court
need not accept as true, however, “a legal conclusion couched as a factual allegation,” nor an
inference unsupported by the facts set forth in the complaint. Trudeau v. FTC, 456 F.3d 178, 193
(D.C. Cir. 2006) (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)). This standard also
governs the Court’s consideration of Rule 12(b)(1) motions to dismiss for lack of subject-matter
jurisdiction. See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974) (“in passing on a motion to
dismiss, whether on the ground of lack of jurisdiction over the subject matter or for failure to
state a cause of action, the allegations of the complaint should be construed favorably to the
pleader”); Walker v. Jones, 733 F.2d 923, 926-26 (D.C. Cir. 1984) (same).
Although “detailed factual allegations” are not necessary to withstand a Rule 12(b)(6)
motion, Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007), “a complaint must contain
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sufficient factual matter, [if] accepted as true, to state a claim to relief that is plausible on its
face.” Iqbal, 556 U.S. at 678 (internal quotation omitted). A plaintiff may survive a Rule
12(b)(6) motion even if “recovery is very remote and unlikely,” but the facts alleged in the
complaint “must be enough to raise a right to relief above the speculative level.” Twombly, 550
U.S. at 555-56 (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)). Finally, although pro se
complaints receive some leeway as compared to those composed by trained attorneys, see
Erickson v. Pardus, 551 U.S. 89, 94 (2007), they must still “plead factual matter that permits the
court to infer more than the mere possibility of misconduct,” Atherton v. District of Columbia
Office of the Mayor, 567 F.3d 672, 681-82 (D.C. Cir. 2009) (internal quotation marks omitted).
III. Analysis
As the Court will address the allegations in both the Complaint and the Amended
Complaint, it will consider the ADA and Civil Rights Act claims separately.
A. Americans with Disabilities Act
The ADA states, in relevant part, “No individual shall be discriminated against on the
basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges,
advantages, or accommodations of any place of public accommodation by any person who owns,
leases (or leases to), or operates a place of public accommodation.” 42 U.S.C. § 12182(a). To
state a claim under this provision of the Act, a plaintiff must allege (1) that he is disabled within
the meaning of the ADA; (2) that the defendant owns, leases, or operates a place of public
accommodation; and (3) that the defendant discriminated against him by denying him a full and
equal opportunity to enjoy the services the defendant provides. See Camarillo v. Carrols Corp.,
518 F.3d 153, 156 (2d Cir. 2008); Molski v. M.J. Cable, Inc., 481 F.3d 724, 730 (9th Cir. 2007).
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Although the ADA protects against numerous kinds of disability discrimination, Brown’s
Complaint does not specify the form that his discrimination took. As he does emphasize that he
requested from Whole Foods management “an accommodation that would allow [him] to receive
help from a manager in order to prevent future problems,” Compl. at 2, the Court will presume
that Brown intends to allege discrimination consisting of “a failure to make reasonable
modifications in policies, practices, or procedures, when such modifications are necessary to
afford such goods, services, facilities, privileges, advantages, or accommodations to individuals
with disabilities, unless the entity can demonstrate that making such modifications would
fundamentally alter the nature of such goods, services, facilities, privileges, advantages, or
accommodations.” 42 U.S.C. § 12182(b)(2)(A)(ii).
Even assuming that Brown is disabled and that Whole Foods is a public accommodation
within the meaning of the ADA, see id. at § 12181(7)(E) (defining “public accommodation” to
include “grocery store[s]”), his Complaint still fails to state a cause of action for which relief can
be granted. Brown’s only requested accommodation was that he “receive help from a manager
in order to prevent future problems.” Compl. at 2. But Brown never claims that he ever sought
to make good on this request or that Whole Foods ever denied it. Cf. Camarillo, 518 F.3d at 156(blind plaintiff stated claim under ADA by alleging that restaurant employees refused to read
menu to her); Demar v. Chicago White Sox, 2006 WL 200640, at *4 (N.D. Ill. Jan 18, 2006)
(plaintiff with difficulty walking stated claim under ADA by alleging that stadium would not
permit him to wait to vacate stands until crowds had subsided). Although Brown’s interactions
with Whole Foods staff appear unpleasant, “[u]nfortunately, legislation such as the ADA cannot
regulate individuals’ conduct so as to ensure that they will never be rude or insensitive to persons
with disabilities.” Stan v. Wal-Mart Stores, Inc., 111 F. Supp. 2d 119, 126-27 (N.D.N.Y. 2000).
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Because Brown never alleges that Whole Foods “fail[ed] to make reasonable modifications in
[its] policies, practices, or procedures” in order to accommodate his disability, 42 U.S.C. §
12182(b)(2)(A)(ii) (emphasis added), he has not alleged a violation of the ADA. This Count will
therefore be dismissed without prejudice.
B. Civil Rights Act of 1964
Brown’s Complaint also alleges that Whole Foods violated Title III of the Civil Rights
Act of 1964, but because that section of the statute deals only with state-owned or state-operated
public facilities, see 42 U.S.C. § 2000b et seq., the Court will presume that Brown intended to
allege a violation of Title II of the Act. Title II provides: “All persons shall be entitled to the full
and equal enjoyment of the goods, services, facilities, privileges, advantages, and
accommodations of any place of public accommodation, as defined in this section, without
discrimination or segregation on the ground of race, color, religion, or national origin.” 42
U.S.C. § 2000a(a). Brown claims that Whole Foods employees discriminated against him by
stereotyping him, falsely accusing him of committing crimes, and treating him worse than the
non-black customers. See Am. Compl. at 3-4.
Whole Foods first suggests that it is exempt from this section of the Civil Rights Act
because it is not a “place of public accommodation” within the meaning of the statute. See MTD
Am. Compl. at 5. The Act defines a “public accommodation” as an establishment that provides
lodging, food for consumption on the premises, or exhibition and entertainment. See 42 U.S.C. §
2000a(b)(1)-(3). The term is also defined to include a facility that contains a covered
establishment within its physical premises, see id. at § 2000a(b)(4)(A)(ii), so that, for example, a
sports club that otherwise falls outside the Act will be transformed into a covered establishment
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if it contains a snack bar. See Daniel v. Paul, 395 U.S. 298, 305 (1969). According to Whole
Foods, a retail grocery store such as itself is not covered by any of these descriptions.
Brown alleges, however, that the Whole Foods store in Foggy Bottom “operat[es] a fully
functioning restaurant on its premises.” Aug. 12 Opp. at 4. At this stage of the proceedings, that
is all Brown needs to do in order to prevail on this point. Clearly, a restaurant is a covered
establishment under Title II; so if Brown is right, then a Whole Foods location containing a
restaurant would also be covered. Whole Foods objects that Brown provides no factual basis for
his claim, but in deciding a motion to dismiss, the Court must accept “the complaint’s factual
allegations as true.” Sparrow, 216 F.3d at 1113. For present purposes, the Court must presume
that the Foggy Bottom Whole Foods contains a restaurant and conclude that the facility is thus
covered by the Act.
Moving on, Whole Foods next contends that even if it is covered by the Act, Brown
cannot prevail on his claim because he has not complied with the statute’s notice provision. See
MTD Am. Compl. at 6. The notice provision in Title II is a “mandatory jurisdictional
prerequisite,” Hollis v. Rosa Mexicano DC, LLC, 582 F. Supp. 2d 22, 24 (D.D.C. 2008), that
applies to plaintiffs in states or political subdivisions that have their own anti-race-discrimination
laws “establishing or authorizing a State or local authority to grant or seek relief [in such cases]
… or to institute criminal proceedings with respect thereto.” 42 U.S.C. § 2000a-3(c). When the
notice requirement applies, a plaintiff may not bring a civil action under Title II “before the
expiration of thirty days after written notice of such alleged act or practice has been given to the
appropriate State or local authority by registered mail or in person.” Id.
The District of Columbia’s Human Rights Act, see D.C. Code § 2-1401 et seq., forbids
race discrimination at places of public accommodation, id. at § 2-1402.31, including retail
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grocery stores such as Whole Foods, id. at § 2-1401.02(24), and empowers the D.C. Office of
Human Rights (DCOHR) to seek relief against such discrimination. See id. at § 2-1403.01 –
1403.17. “[A] plaintiff bringing a civil action for a Title II claim of discrimination in the District
of Columbia must [therefore] first file written notice with the DCOHR at least thirty days before
bringing any action in federal court.” Hollis, 582 F. Supp. 2d at 25.
Brown does not deny that he has so far failed to file any notice with DCOHR. He instead
argues that other provisions of the Act mitigate the notice requirement, pointing out that the Act
confers federal jurisdiction over civil rights claims “without regard to whether the aggrieved
party shall have exhausted any administrative or other remedies that may be provided by law.”
See Aug. 12 Opp. at 5 (citing 42 U.S.C. § 2000a-6(a)). But Brown confuses the “notice”
described in § 2000a-3(c) with the “administrative or other remedies” discussed in § 2000a-6(a).
As the Tenth Circuit has explained:
[A]ny outlawing of the doctrine of exhaustion of remedies does not
negate the earlier requirement of the statute that … the state must
be given the opportunity to invoke its remedies. In short, § 2000a-
3(c) requires that no action shall be brought under that particular
section of the act before the expiration of thirty days after notice of
such alleged discriminatory act has been given the appropriate
state agency; whereas, § 2000a-6(a) simply provides that one who,
for example, has given notice to the appropriate state agency need
not thereafter exhaust such remedy before the district court
acquires jurisdiction.
Harris v. Ericson, 457 F.2d 765, 767 (10th Cir. 1972). The import of § 2000a-6(a) is clear:
because Brown has not yet given notice to the DCOHR about the events at the Foggy Bottom
grocery, the Court has no jurisdiction to entertain his claim against Whole Foods under Title II of
the Civil Rights Act.
At this point, moreover, it is too late for Brown to cure the deficiency in his claim by
filing such a notice. Complaints must be filed with DCOHR “within 1 year of the occurrence of
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the unlawful discriminatory practice, or the discovery thereof,” D.C. Code § 2-1403.04(a); see
also Jones v. Howard University, 574 A.2d 1342, 1345 (D.C. 1990), and Brown alleges that the
last incident of discrimination occurred on February 4, 2012, well over one year ago. See Am.
Compl. at 3. Brown insists that the one-year statute of limitations should be tolled in his case
because his former attorney “effectively prevented [him] from asserting his rights” by advising
him that the case “had nothing to do with civil rights.” Aug. 12 Opp. at 7. Unfortunately for
Brown, however, the Human Rights Act “contains no express provisions for tolling [its] one-year
statute of limitations,” nor has the District of Columbia adopted a general equitable “saving”
statute to toll statutes of limitations in cases of reasonable mistake. See East v. Graphic Arts
Industry Joint Pension Trust, 718 A.2d 153, 156 (D.C. 1998).
It is true that the D.C. Court of Appeals has recognized “two limited exceptions” to the
District’s “generally strict application of statutes of limitations” – the “lulling doctrine” and the
“discovery rule.” Id. But only the discovery rule, also reflected in the Human Rights Act itself,
is even arguably applicable here, and that rule applies only “where the fact of an injury is not
readily apparent.” Id. (citing Farris v. Compton, 652 A.2d 49, 54 (D.C. 1994)). Where, as in
Brown’s case, “the plaintiff has failed to discover the relevant law even though the existence of
an injury is apparent,” the statute of limitations continues to run. Id. (citing Kidwell v. District
of Columbia, 670 A.2d 349, 353 (D.C. 1996)). Brown has filed a surreply claiming that his
former attorney effectively concealed the evidence that he needed to file a complaint with the
DCOHR by telling him that he had no basis for a civil rights claim against Whole Foods, see
Supp. Mem. at 3, but again, so long as Brown knew the facts of his case against Whole Foods,
the discovery rule cannot save him from his misapprehension of the law. Because it is no longer
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possible for Brown to comply with Title II’s notice requirement, amendment will not cure the
notice deficiency.
IV. Conclusion
For the foregoing reasons, the Court will issue a contemporaneous Order that will grant
Defendant’s Motion to Dismiss. A separate Order consistent with this Opinion will be issued
this day.
/s/ James E. Boasberg
JAMES E. BOASBERG
United States District Judge
Date: September 4, 2013
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