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Brown v. Whole Foods Market Group, Inc.

United States Court of Appeals, District of Columbia Circuit

June 12, 2015


Argued: January 15, 2015.

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.


Page 147


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.


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

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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 ...

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