                            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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