Brown v. Whole Foods Mkt. Grp., Inc.

• Decision Date: 12 June 2015
• Docket Number: No. 13–7156.,13–7156.
• Parties: Randy BROWN, Appellant, v. WHOLE FOODS MARKET GROUP, INC., Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

789 F.3d 146

Randy BROWN, Appellant

v.WHOLE FOODS MARKET GROUP, INC., Appellee.

No. 13–7156.

United States Court of Appeals, District of Columbia Circuit.

Argued Jan. 15, 2015.

Decided June 12, 2015.

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

Opinion for the Court filed PER CURIAM.

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 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. 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.

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 “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 II³ 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 requirement⁴ 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 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...