Randy Brown v. Whole Foods Market Group, Inc

Filing

OPINION filed [1557154] PER CURIAM OPINION (Pages: 15). [13-7156]

USCA Case #13-7156

Document #1557154

Filed: 06/12/2015

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued January 15, 2015

Decided June 12, 2015

No. 13-7156
RANDY BROWN,
APPELLANT
v.
WHOLE FOODS MARKET GROUP, INC.,
APPELLEE

Appeal from the United States District Court
for the District of Columbia
(No. 1:13-cv-00175)

Andrew D. Herman argued the cause for the amicus curiae
in support of the appellant. Anthony F. Shelley, appointed by
the court, was with him on briefs.
Christopher E. Humber argued the cause and filed brief
for the appellee.
Before: HENDERSON and MILLETT, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.
Opinion for the Court filed PER CURIAM.

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PER CURIAM: Pro se plaintiff Randy Brown suffers from
a cognitive disability due to traumatic brain injury. His
impairment causes twitching, abnormal or “quirky” facial
expressions, “social awkwardness” and “idiosyncratic
mannerisms.” Compl. 1; Pl.’s Resp. to Def.’s Mot. to Dismiss
¶ 4. It also renders him susceptible to confusion and, when he
experiences stress, it can incapacitate him with little warning.
Brown enjoys imported food and wine and often shops at the
Whole Foods supermarket in Washington, D.C.’s Foggy
Bottom area. Brown alleges, however, that Whole Foods
employees repeatedly mistreated him and eventually
orchestrated his false arrest for theft and trespassing. He sued
Whole Foods, claiming that its mistreatment amounted to
discrimination based on his disability and his race. The
district court dismissed his suit and, for the reasons set forth
below, we reverse and remand.
I.
Whole Foods’s alleged mistreatment of Brown first began
in late summer 2011 when a cashier asked Brown: “Wouldn’t
your food stamps buy more at a less expensive store?”
Amend. to Pl.’s Compl. ¶ 1. 1 Brown insisted that he did not
use food stamps but the cashier responded (loud enough for
others to hear) that she had seen him use food stamps and then
mocked him for doing so. Brown claims she mistook him for
a different black male, thus profiling him because of his race.
He reported the incident to Whole Foods management and the
cashier was reassigned to stocking shelves. Nevertheless, the

1

Because we review the district court’s dismissal of Brown’s
claims, we recount the facts as laid out in his pleadings, viewing
them in the light most favorable to Brown. See Klay v. Panetta, 758
F.3d 369, 371 (D.C. Cir. 2014).

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cashier-turned-shelf-stocker continued to display “open
resentment and hostility” toward him. Id. ¶ 2.
In January 2012, while in the Whole Foods deli section,
Brown asked to sample an expensive salami. The Whole
Foods employee refused, allegedly assuming that Brown could
not afford to buy it and informing him that samples were only
for customers intending to make a purchase. Brown insisted
and, rather than offering him the salami on a napkin (as she did
with other customers), she allegedly removed her gloves,
grabbed a discarded slice with her bare hands and shoved it
towards Brown. When Brown refused the sample, she
accused Brown of “thinking that he was too good to eat
something from her bare hands” and left the deli section to
speak with a Whole Foods wine-department employee. Id.
¶ 6. Brown overheard the two employees referring to him as
“simple looking” and “trifling” and remarking that he “should
be grateful for anything he received.” Pl.’s Resp. to Def.’s
Mot. to Dismiss ¶ 6. 2
The day after the deli incident, Brown returned to Whole
Foods. The wine-department employee who had earlier
mocked him accused him of stealing olives and shouted:
“You’re not to eat anything in this store!” Id. ¶ 7. Brown
indicated that he was not eating anything, which prompted an
apology and, according to Brown, a false explanation that the
employee was merely concerned because “toxic dust” could
make him sick. Id. Brown continued shopping, eventually
asking a wine-department supervisor for a recommendation.

2

Brown also alleges, however, that another Whole Foods
employee “put on gloves and provided the sample that [he] had,
originally, requested[,] served on a napkin.” Pl.’s Resp. to Def.’s
Mot. to Dismiss ¶ 6.

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According to Brown, the supervisor stared at him and “was
reluctant to speak to [him] about wines.” Id. ¶ 9.
Frustrated, Brown met with “Ashley,” the supervisor of
the deli and wine departments. Id. ¶¶ 10–11. He explained
his disability and that Whole Foods employees’ harassment
aggravated his confusion and disorientation.
Ashley
apologized and assured him that the store’s employees would
be
reprimanded
for
violating
Whole
Foods’s
non-discrimination policy. Brown then asked whether Whole
Foods “would accommodate him by allowing him to speak
with management if a problem arose in the future.” Id. ¶ 14.
Ashley assured him that he could speak with a manager if he
felt mistreated or harassed and promised to document their
conversation. Subsequently, Brown asked Ashley to make
Whole Foods management “understand” his disability and
“discourage employees from profiling and targeting him.” Id.
¶ 15. According to Brown, Ashley “took notes and promised
that WholeFoods [sic] would take the matter seriously.” Id.
¶ 16.
On February 4, 2012, Brown, wearing a foot cast and
using a cane due to a bicycle accident, was walking through
Whole Foods with an armful of groceries when he noticed a
Whole Foods employee named “Khalil” taking photos of him.
Id. ¶¶ 17, 19. Khalil confronted Brown, accused him of
stealing a cookie, advised him to “flee the store” before the
police arrived and suggested that he “never return.” Amend.
to Pl.’s Compl. ¶ 9. Brown told Khalil that he wanted to speak
with a manager; Khalil responded, “I am the manager.” Pl.’s
Resp. to Def.’s Mot. to Dismiss ¶ 21. Brown panicked and
was unable to respond. When the police arrived, Khalil
allegedly said, “We don’t want this guy in our store. He stole
a package of cookies and walked through the entire store eating
them. He has been here over an hour.” Id. ¶ 22.

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Brown was arrested for theft and trespassing but
ultimately charged with trespassing only. He retained a
lawyer and the trespassing charge was eventually dismissed
when Whole Foods failed to appear for trial. Brown’s lawyer
then suggested that he sue Whole Foods but told Brown to take
no legal action on his own. His lawyer filed a one-page
complaint in the Superior Court, alleging that Brown had been
falsely arrested. According to Brown, his lawyer declined to
allege race or disability discrimination, advising Brown that
Whole Foods was not subject to civil-rights statutes, that he
had in fact trespassed by not leaving Whole Foods when asked
and that Whole Foods could file a retaliatory suit against both
Brown and the lawyer for “impugning” its reputation if a
civil-rights complaint were brought. Add. to Pl.’s Resp. to
Def.’s Mot. to Dismiss 2.
Dissatisfied, Brown filed a pro se complaint in district
court under the Americans with Disabilities Act (ADA), 42
U.S.C. §§ 12101 et seq., “pertaining to [Whole Foods’s]
refusal to accommodate” him. Compl. 1. His complaint
recounted his experiences with Whole Foods employees and
alleged that he had “asked that management be aware that [he]
was susceptible to confusion in complicated situations
involving the type of harassment that [he] had already
experienced at WholeFoods [sic].” Id. at 2. It further alleged
that Brown had “asked for an accommodation that would allow
[him] to receive help from a man[a]ger in order to prevent
future problems.” Id. Whole Foods moved to dismiss
Brown’s complaint, acknowledging Brown’s allegation that he
had requested access to a manager but also noting that he did
not allege that he had been “denied such a request.” Mem. in
Supp. of Def.’s Mot. to Dismiss 4.
In his opposition to Whole Foods’s motion, Brown alleged
that he had requested Whole Foods management to

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“understand his disability and discourage employees from
profiling and targeting him.” Pl.’s Resp. to Def.’s Mot. to
Dismiss ¶ 15. According to Brown, he “felt bewildered”
because “Ashley had assured [him] that WholeFoods [sic]
would accommodate him by allowing him to speak with a
manager” but “Khalil’s actions contradicted what Ashley had
promised.” Id. ¶ 21.
Brown also filed an “Amendment” to his original
complaint that, for the first time, alleged that Whole Foods
violated Title II 3 of the Civil Rights Act of 1964 (CRA), 42
U.S.C. §§ 2000a et seq. In support, Brown recounted the
food-stamp accusation and noted that he had been subject to
“similar remarks indicating a pattern of [racial] profiling.”
Amend. to Pl.’s Compl. ¶ 3; see also id. ¶ 7. Whole Foods
responded with a second motion to dismiss, arguing that
Brown’s failure to comply with the CRA notice requirement 4
ousted the court of jurisdiction. Whole Foods further argued
that the jurisdictional deficiency could not be cured because
the statute of limitations for filing a discrimination complaint
with the District of Columbia Office of Human Rights
(DCOHR) had long since expired.
Brown moved for an extension of time to respond,
attaching a copy of an email from the DCOHR General
Counsel. The email responded to Brown’s earlier email that
appeared to be a post-complaint attempt to comply with the
CRA notice provision. A few weeks later, Brown responded
to Whole Foods’s second motion to dismiss, conceding his
3

Brown’s complaint mistakenly alleged a violation of Title III
of the CRA but the district court assumed that he meant Title II,
which bars racial discrimination by “any place of public
accommodation.” See Mem. Op. 7 (quoting 42 U.S.C. § 2000a(a)).
4

See infra p. 12.

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noncompliance with the CRA notice requirement and the
one-year statute of limitations but arguing for an equitable
exception because his former lawyer had “misadvis[ed]” him.
Pl.’s Resp. to Def.’s 2d Mot. to Dismiss 7.
On September 4, 2013, the district court
dismissed—without prejudice—both of Brown’s claims. On
his ADA claim, the court first assumed that Brown intended to
allege a violation of 42 U.S.C. § 12182(b)(2)(A)(ii), which
prohibits a place of “public accommodation” from failing “to
make reasonable modifications in policies, practices, or
procedures, when such modifications are necessary to afford”
the ADA-covered entity’s “goods, services, facilities, . . . or
accommodations to individuals with disabilities.” See Mem.
Op. 6. The court then found that “Brown’s only requested
accommodation was that he ‘receive help from a manager in
order to prevent future problems.’ ” Id. (quoting Compl. 2).
According to the court, Brown “never claim[ed] that he ever
sought to make good on this request or that Whole Foods ever
denied it.”
Id.
Without addressing Brown’s
allegations—asserted in his opposition to Whole Foods’s
motion to dismiss—that he did in fact request managerial
assistance on the day of his arrest and asked that Whole Foods
management understand his disability and discourage its
employees from harassing him, the district court dismissed his
ADA claim.
On his CRA claim, the district court first held that Whole
Foods fit the statutory definition of a “place of public
accommodation,” 42 U.S.C. § 2000a(b)(1)–(3), but,
concluding that “[t]he notice provision in Title II is a
mandatory jurisdictional prerequisite,” Mem. Op. 8 (quotation
marks omitted), it decided that Brown’s admitted failure to
comply divested it of subject-matter jurisdiction. Id. at 9. It
further observed that it was “too late for Brown to cure the

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deficiency in his claim by filing such a notice” because race
discrimination “[c]omplaints must be filed with DCOHR
‘within 1 year of the occurrence of the unlawful discriminatory
practice, or the discovery thereof,’ ” id. at 9–10 (quoting D.C.
Code § 2-1403.04(a)), and “Brown allege[d] that the last
incident of discrimination occurred on February 4, 2012, well
over one year” earlier, id. at 10. Without addressing Brown’s
post-complaint attempt to comply with the notice provision,
the district court also dismissed his CRA claim.
Brown timely appealed; we subsequently appointed
amicus curiae to “present arguments in favor of [Brown’s]
position.” Order Appointing Amicus Curiae 2 (Apr. 23,
2014). We also notified Brown to “file a brief or file a notice
stating that he is joining in the brief of amicus curiae” or his
appeal would be dismissed for lack of prosecution. Id.
Before amicus filed its brief, Brown filed a notice indicating
that he “intend[ed] to join in the brief of Amicus Curiae” and
would “not file a brief” of his own. Appellant’s Notice
Regarding Intent to Join Br. of Amicus Curiae 2.
II.
We review de novo the district court’s dismissal of
Brown’s complaint for failure to state a claim (his ADA claim)
and for lack of subject-matter jurisdiction (his CRA claim).
Atherton v. Dist. of Columbia Office of the Mayor, 567 F.3d
672, 681 (D.C. Cir. 2009) (failure to state a claim); Oakey v.
U.S. Airways Pilots Disability Income Plan, 723 F.3d 227, 231
(D.C. Cir. 2013) (subject-matter jurisdiction). In so doing, we
treat “the complaint’s factual allegations as true” and we grant
Brown “the benefit of all inferences that can be derived from
the facts alleged.” Atherton, 567 F.3d at 677. Although we
hold Brown’s pro se pleadings to “less stringent standards than
formal pleadings drafted by lawyers,” Erickson v. Pardus, 551

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U.S. 89, 94 (2007) (per curiam), Brown must nonetheless plead
“factual matter that permits [us] to infer more than the mere
possibility of misconduct,” Atherton, 567 F.3d at 681–82
(quotation marks omitted).
A.
Brown first alleges a violation of Title II of the ADA,
specifically section 12182(a). To state a claim under the
ADA, Brown must plausibly allege that he is disabled within
the meaning of the ADA; that Whole Foods is a place of public
accommodation; and that Whole Foods discriminated against
him by denying him a full and equal opportunity to enjoy the
goods and services it provides. See Camarillo v. Carrols
Corp., 518 F.3d 153, 156 (2d Cir. 2008). The district court
assumed 5 that Brown satisfied the first and second elements
but concluded that he failed to show discrimination.
ADA-prohibited discrimination can take many forms,
some of which are enumerated in the statute. The district
court presumed that Brown’s claim fit under 42 U.S.C.
§ 12182(b)(2)(A)(ii). 6 After noting that “Brown’s only
requested accommodation was that he ‘receive help from a
5

The court declared: “Even assuming that Brown is disabled
and that Whole Foods is a public accommodation within the
meaning of the ADA, . . . his Complaint still fails to state a cause of
action for which relief can be granted.” Mem. Op. 6 (citation
omitted).
6

Again, it declared: “[T]he 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.’ ”
Mem. Op. 6 (quoting 42 U.S.C.
§ 12182(b)(2)(A)(ii)).

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manager in order to prevent future problems,’ ” Mem. Op. 6
(quoting Compl. 2), the court dismissed Brown’s ADA claim
because “Brown never claims that he ever sought to make good
on this request or that Whole Foods ever denied it.” Id.
On appeal, amicus argues that Brown did in fact plausibly
so allege. Amicus Br. 16; see also id. at 20. Amicus insists
that Brown “made two, specific requests for reasonable
modification[s], neither of which were granted by Whole
Foods,” Amicus Reply Br. 8; specifically, that Whole Foods
management instruct its employees to “cease harassing
Brown” and that Whole Foods “provide him with access to a
supervisor capable of addressing his needs.” Amicus Br. 25;
see also Amicus Reply Br. 8–9, 11–12. Whole Foods
responds that Brown was never denied an opportunity to speak
with a manager and that his pleadings do not indicate that he
asked Whole Foods to modify its policies to account for his
disability. Whole Foods argues that, “[i]f anything, Brown is
simply attempting to shoehorn a disparate treatment claim into
the framework of a reasonable accommodation claim” but that
the district court “did not construe Brown’s pleadings to
include a disparate treatment claim . . . and Brown does not
argue on appeal that it should have done so.” Appellee’s
Br. 11.
We conclude that Brown’s pleadings—considered in
toto—set out allegations sufficient to survive dismissal.
Specifically, Brown allegedly asked that management be made
aware of his disability, see Compl. 2; Pl.’s Resp. to Def.’s Mot.
to Dismiss ¶¶ 14–15; that he be allowed to receive help and
speak to a manager to prevent future problems, see Compl. 2;
Pl.’s Resp. to Def.’s Mot. to Dismiss ¶ 14; and that
management discourage employees from profiling and
targeting him, Pl.’s Resp. to Def.’s Mot. to Dismiss ¶ 15.
Brown was then allegedly denied these accommodations when

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he asked for a manager on the day of his arrest. See id. ¶ 21.
Although Khalil responded that he was the manager, Brown
was “bewildered” because “Khalil’s actions contradicted what
Ashley had promised,” id., that is, “that management [would]
be aware that [he] was susceptible to confusion” and would
provide “help . . . in order to prevent future problems.”
Compl. 2. It appears that the district court did not consider
these allegations. Brown also alleged that he requested
Whole Foods management more generally to “understand his
disability and discourage employees from profiling and
targeting him.” Pl.’s Resp. to Def.’s Mot. to Dismiss ¶ 15.
The district court did not expressly rule on this request.
We conclude that Brown, as a pro se plaintiff, successfully
“nudged [his] claim[] across the line from conceivable to
plausible,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007), and, because the district court did not appear to
consider all of his allegations—including those in Brown’s
opposition to Whole Foods’s motion to dismiss—in
concluding otherwise, we reverse and remand the dismissal of
Brown’s ADA claim. We have previously held that a district
court errs in failing to consider a pro se litigant’s complaint “in
light of” all filings, including filings responsive to a motion to
dismiss. See Richardson v. United States, 193 F.3d 545, 548
(D.C. Cir. 1999). Whole Foods will suffer no prejudice by
allowing Brown to, in effect, supplement his complaint with
the allegations included in his opposition. See id. at 549.
Indeed, when Brown filed his opposition, he also filed a
separate amendment to his complaint, which amendment the
district court allowed. In reversing the district court’s
dismissal order, we hold that the district court should have
considered the facts alleged in all of Brown’s pleadings and,
once considered, should have concluded that Brown
sufficiently stated his ADA claim to avoid 12(b)(6) dismissal.

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B.
Brown also alleged that Whole Foods violated Title II of
the CRA, which ensures that “[a]ll 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 . . . without
discrimination
or
segregation on the ground of race, color, religion or national
origin.” 42 U.S.C. § 2000a(a). The CRA provides that, if an
“alleged act or practice prohibited by this subchapter . . .
occurs in a State” with a “State or local law prohibiting such
act or practice and establishing or authorizing a State or local
authority to grant or seek relief from such practice;”
[N]o civil action may be brought . . . 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, provided that the court may stay
proceedings in such civil action pending the
termination of State or local enforcement
proceedings.
Id. § 2000a–3(c) (emphasis added).
The CRA notice
provision applies to claims arising in the District of Columbia 7
and Brown did not first seek relief from DCOHR. 8

7

See D.C. Code § 2-1402.31(a)(1) (unlawful “[t]o deny [on
the basis of race], directly or indirectly, any person the full and equal
enjoyment of the goods, services, facilities, privileges, advantages,
and accommodations of any place of public accommodations”); id.
§§ 2-1403.01–.17 (DCOHR has authority to seek relief for violations
of D.C. Code § 2-1402.31).
8

Amicus raised the possibility that Brown gave verbal notice
to the D.C. Office of Disability Rights—not DCOHR—before he

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Construing the CRA notice provision as a “mandatory
jurisdictional prerequisite,” Mem. Op. 8 (quotation marks
omitted), the district court held that it was without
subject-matter jurisdiction and that it was too late for Brown to
meet the CRA notice requirement, id. at 9.
Amicus argues that the CRA notice provision is not a
jurisdictional prerequisite under the U.S. Supreme Court’s
decision in Arbaugh v. Y&H Corp., 546 U.S. 500 (2006), and
its progeny and that Brown sent a post-complaint email to
DCOHR; accordingly, amicus argues, Brown’s failure to
comply strictly with the CRA notice provision should be
excused on equitable grounds. Whole Foods defends the
district court’s decision in toto, noting that several of our sister
circuits—all pre-Arbaugh—have construed the CRA notice
requirement as jurisdictional. Whole Foods is wrong. Under
Supreme Court cases like Arbaugh, 546 U.S. at 500, Gonzalez
v. Thaler, 132 S. Ct. 641 (2012), Sebelius v. Auburn Regional
Medical Center, 133 S. Ct. 817 (2013), and United States v.
Wong, 135 S. Ct. 1625 (2015), jurisdiction means a court’s
“statutory or constitutional power to adjudicate the case,” Steel
Co. v. Citizens for a Better Env’t, 523 U.S. 83, 89 (1998)
(emphasis in original), and statutory limitations like the CRA
notice provision are jurisdictional only when the Congress has
“clearly stated as much,” Wong, 135 S. Ct. at 1632 (notice
requirement and time limits in Federal Tort Claims Act are not
jurisdictional) (alterations and quotation marks omitted). The
Congress has not so treated the CRA notice requirement and
we take this opportunity to make clear that section 2000a–3(c)
of the CRA does not constitute a jurisdictional prerequisite.

filed his complaint. Amicus concedes, however, that there is no
record support therefor.

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Brown’s attempt to comply with the notice provision, the
district court concluded, came “too late.” Mem. Op. 9. We
disagree. In Oscar Mayer & Co. v. Evans, 441 U.S. 750
(1979), the Supreme Court construed a materially similar
notice provision contained in the Age Discrimination in
Employment Act of 1967 (ADEA), 29 U.S.C. §§ 621 et seq.
Section 14(b) of the ADEA provides, in relevant part, that:
In the case of an alleged unlawful practice occurring
in a State which has a law prohibiting discrimination
in employment because of age and establishing or
authorizing a State authority to grant or seek relief
from such discriminatory practice, no suit may be
brought . . . before the expiration of sixty days after
proceedings have been commenced under the State
law.
29 U.S.C. § 633(b). After holding that exhaustion of state
administrative remedies is “mandatory, not optional,” Oscar
Mayer, 441 U.S. at 758, the Supreme Court nonetheless
rejected the argument that, because the state statute of
limitations at issue had expired, it was “too late . . . to remedy
[the] procedural omission” and the “federal action [was]
therefore jurisdictionally barred.” Id. at 759. The argument
failed because the state statute of limitations could not divest
the federal court of jurisdiction “unless Congress mandated
that resort to state proceedings must be within time limits
specified by the State,” id., and “[b]y its terms,” section 14(b)
“requires only that state proceedings be commenced 60 days
before federal litigation is instituted,” id. (emphasis added).
Indeed, “besides commencement[,] no other obligation is
placed upon the ADEA grievant,” particularly no obligation
that “the grievant must file with the State within whatever time
limits are specified by state law.” Id. For this reason, the
Court held that the plaintiff in Oscar Mayer “may yet comply

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with” the ADEA’s notice provision “by simply filing a signed
complaint” with the appropriate state agency. Id. at 764. If
that state agency dismissed the complaint as untimely, then, the
Court held, he “may . . . return to federal court.” Id. at 764–
65. To give the Oscar Mayer plaintiff the opportunity to
satisfy the ADEA’s notice requirement, the Supreme Court
ordered his suit held in abeyance. Id. at 764.
The same reasoning applies to Brown’s CRA claim. The
CRA notice requirement, by its terms, does not incorporate any
state statute of limitations. See 42 U.S.C. § 2000a–3(c). For
this reason, Brown may still comply with it by providing
written notice of his race discrimination allegations to DCOHR
and waiting thirty days. If DCOHR denies his administrative
complaint as time-barred, he, like the Oscar Mayer plaintiff,
can return to federal court at that time. Accordingly, we
reverse the district court’s dismissal and instruct it to hold
Brown’s CRA claim in abeyance until he complies with the
CRA notice provision.
For the foregoing reasons, we reverse the district court’s
dismissal of Brown’s ADA and CRA claims and remand for
proceedings consistent with this opinion.
So ordered.

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