Whole Foods Customer Ban Upheld; Motion to Add Title II Gender-Based Public Accommodation Claim Denied on Ground of Futility

From Solomon v. Amazon.com, Inc. et al, 2019 WL 2601794 (E.D.N.Y., 2019):

Solomon “seeks permission to amend his complaint to add counts of discrimination on account of gender in violation of Title VII of the Civil Rights Act of 1964, and of a denial to his right of access to a place of public accommodation in violation of 42 U.S.C. Section 2000a [Title II].” Opp. 10. Although “[t]he court should freely give leave [to amend] when justice so requires,” Fed. R. Civ. P. 15(a)(2), Solomon’s motion to amend his Complaint to include discrimination claims fails “on the ground of futility.” Leonelli v. Pennwalt Corp., 887 F.2d 1195, 1198 (2d Cir. 1989); see also Tocker v. Philip Morris Cos., 470 F.3d 481, 491 (2d Cir. 2006). Neither of his proposed claims under Title VII or Section 2000a would survive a motion to dismiss. IBEW Local Union No. 58 Pension Tr. Fund & Annuity Fund v. Royal Bank of Scotland Grp., PLC, 783 F.3d 383, 389 (2d Cir. 2015) (“[T]he standard for denying leave to amend based on futility is the same as the standard for granting a motion to dismiss.”).

Title VII prohibits discriminatory employment practices. 42 U.S.C. § 2000e-2(a); see also McDonnell Douglas Corp. v. Green, 411 U.S. 792, 800 (1973) (“The language of Title VII makes plain the purpose of Congress to assure equality of employment opportunities ….” (emphasis added)). Indeed, “an adverse employment action” is required to establish a prima facie case of discrimination under Title VII. Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 83 (2d Cir. 2015) (emphasis added). Solomon was never an employee of Whole Foods; the Complaint solely refers to him as a “customer.” See, e.g., Compl. ¶ 1. Thus, Title VII is wholly inapplicable, and amendment on that ground would be futile.

Title II prohibits discrimination in the access of “goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation … on the ground of race, color, religion, or national origin.” 42 U.S.C. § 2000a(a). Significantly though, “Title II does not prohibit discrimination on the basis of sex.” Guichardo v. Langston Hughes Queens Library, 2015 WL 13227995, at *4 (E.D.N.Y. Nov. 20, 2015). The only protected class Solomon puts forth is his gender, so leave to amend on this ground is also denied as he could not state a claim under Title II.

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