Randy Brown v. Whole Foods Market Group, Inc

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.

2

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).

3

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.

4

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.

5

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

6

“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.

7

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

8

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

9

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)).

10

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

11

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.

12

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

13

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.

14

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

15

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.