Jbari v. District of Columbia

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
MOHAMMED JBARI, )
)
Plaintiff, )
)
v. ) Civil Action No. 16-cv-2247 (TSC)
)
)
DISTRICT OF COLUMBIA, )
)
Defendant. )
)
MEMORANDUM OPINION
Plaintiff Mohammed Jbari brings claims against the District of Columbia Metropolitan
Police Department (“MPD”) following his termination as a probationary police officer. Jbari
used family medical leave to care for his newborn son and claims that MPD violated both the
federal Family and Medical Leave Act (“FMLA”) and the District of Columbia Family and
Medical Leave Act (“DCFMLA”), by interfering with his leave and retaliating against him for
exercising his rights to take leave. 29 U.S.C. § 2615(a); D.C. Code § 32-501 et seq. Around the
same time that he returned from family leave, Jbari went on military leave to serve in the United
States Army Reserve and he alleges that MPD discriminated against him for taking leave, failed
to reemploy him upon his return, and terminated him in violation of the Uniformed Services
Employment and Reemployment Rights Act (“USERRA”), 38 U.S.C. § 4311; 38 U.S.C. § 4312.
Jbari—who is a Moroccan of Arab descent and a Muslim—also brings discrimination claims
pursuant to Title VII of the Civil Rights Act (“Title VII”), 42 U.S.C 2000e et seq. and the
District of Columbia Human Rights Act (“DCHRA”), D.C. Code § 2-1402.01 et seq.
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Pursuant to Federal Rule of Civil Procedure 12(b)(6), MPD seeks dismissal of the
following claims:
1) Failure to reemploy under USERRA (Count VI);1
2) Title VII discrimination (Count VII); and
3) DCHRA discrimination (Count VII). 2
See ECF No. No. 17; see ECF No. 12, Amend. Compl. In addition to opposing MPD’s motion,
Jbari also moved for leave to file a Second Amended Complaint. ECF Nos. 20, 21. For the
reasons set forth below, the court will GRANT both motions in part, and DENY them in part.
I. BACKGROUND
Jbari became an employee of MPD on August 25, 2014 and graduated from the police
academy in April of the following year. Am. Compl. ¶¶ 32-33. Several months later, he
requested family medical leave to care for his newborn child from September 18 through
November 14, 2015. Id. ¶ 35. A family and medical leave coordinator emailed Jbari an
approved leave request for three hundred and twenty hours of paid leave. Id. ¶ 39. Two days
before his family medical leave expired, MPD Captain Mongal “inappropriately instructed” Jbari
to report to work immediately. Id. ¶ 41. Jbari responded by resubmitting his leave request to his
1
Jbari’s Complaint lists Count VI twice: the first Count VI relates to Jbari’s USERRA failure to
reemploy claim. See Amend. Compl. ¶¶ 168-176. The second Count VI involves USERRA
individual liability claims, see id. ¶¶ 177- 204, but Jbari failed to name any individual defendants
in the caption of the Complaint. To remedy this deficiency, he seeks to add the individual
defendants in his proposed Second Amended Complaint.
2
Jbari’s Complaint also contains Count VII twice: both counts reference Title VI in the heading.
See Amend. Compl. ¶¶ 205-222. However, the factual allegations in the second Count VII
actually relate to his DCHRA claim against MPD. Id. ¶¶ 223-241.
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supervisor, Sergeant Hrebenak.3 Id. ¶ 42. Jbari also provided Hrebenak with military orders
requiring Jbari to report for duty from November 16 (two days after his family leave was set to
expire) through December 18. Id. ¶¶ 42-43. Shortly thereafter, Hrebenak emailed Jbari,
confirming that his family medical leave had previously been approved for 320 hours and
indicating that he was now approved for the military leave. Id.
Jbari’s military leave ended on December 18, 2015, and he returned to MPD the
following day. Id. ¶ 44. However, at some point prior to his return, he received orders for a
second tour of duty scheduled from December 27 through December 31, as well as a third tour
scheduled for January 1 through January 17. Id. ¶¶ 45-46. It is not clear how many days, if any,
he worked between his return from the first military leave and his subsequent military leaves, but
Jbari contends each leave was “approved through the proper channels.” Id. ¶ 50. Despite
informing three supervisors about his orders, a few days into his third leave, on January 8, Jbari
received a call from MPD Commander Groomes who allegedly said “Do you want to stay with
the MPD? If you do, you have to come back to work, and you’ve been AWOL for two (2)
months.” Id. ¶¶ 47-49. At that juncture, Jbari was not scheduled to return from military leave
for approximately nine days. On the same day that Groomes called, an MPD assistant4 emailed
Jbari requesting that he meet with Groomes a few days after he was scheduled to return from
leave on January 20. Id. ¶ 51. Jbari responded that his current military leave had been extended
through January 24 but, after conferring with his military supervisors, he agreed to attend the
3
It is unclear who directly supervised Jbari and why his communications about his various leave
requests involved numerous supervisors.
4
The Complaint refers to her as “an Assistant” and does not elaborate.
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meeting. Id. ¶¶ 52-53. Groomes later cancelled the meeting and Jbari returned to MPD as
scheduled on January 25. Id. ¶¶ 54-55.
The following day, January 26, Jbari met with MPD Commander Parker about the
allegations that he had been “AWOL” and provided documentation that proved he had “followed
protocol” and obtained approval for each leave. Id. ¶ 56. Notwithstanding the documentation,
Parker suspended Jbari for two days. Id. ¶ 57. It is unclear if, or when, the suspension actually
occurred because the next day Jbari went on a certification ride.5 Id. ¶ 58. One day later, Jbari
received orders for a fourth military tour of duty, but there is no indication that he informed
MPD of this information before MPD terminated him several days later on January 30, 2016. Id.
¶¶ 58-60. MPD claims it terminated Jbari for alleged performance deficiencies during his four
certification rides. Id. ¶¶ 58, 60-61.
II. LEGAL STANDARD
A motion to dismiss under Fed. R. Civ. P. 12(b)(6) for failure to state a claim tests the
legal sufficiency of a complaint. See Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002).
“To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, (2007)). A claim is plausible
when the factual content allows the court to “draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Id. In employment discrimination cases, although plaintiffs
5
According to MPD, a “certification ride is a field test where a sergeant assess a probationary
officer’s abilities and knowledge while out on patrol, armed and wielding full police power.
Probationary officers are ‘uncertified’ until they pass this field test. Once certified, they are
allowed to go on patrol alone.” Defs. Mot. to Dismiss Br. p. 4.
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must establish a plausible claim for relief, they do not need to “plead every fact necessary to
establish a prima facie case to survive a motion to dismiss.” Jones v. Air Line Pilots Ass’n, Int’l,
642 F.3d 1100, 1104 (D.C. Cir. 2011) (citation omitted).
III. ANALYSIS
A. USERRA Failure to Reemploy Claim (First Count VI)
MPD argues that this court should dismiss Jbari’s USERRA reemployment claim because
he admits that he “resumed his position at MPD” on January 25, the day after his third military
leave ended. See Am. Compl. ¶ 55.
Congress enacted USERRA with three goals in mind:
(1) to encourage noncareer service in the uniformed services by reducing
employment disadvantages; (2) to minimize the disruption to the lives of persons
performing military service, their employers and others by providing for the prompt
reemployment of such persons upon their completion of such service; and (3) to
prohibit discrimination against persons because of their service in the uniformed
services.
Bradberry v. Jefferson Cty., Tex., 732 F.3d 540, 544–45 (5th Cir. 2013) (citing 38 U.S.C. §
4301(a) (internal quotations omitted). Service members may bring two types of USERRA
actions: (1) claims for failure to reemploy under 38 U.S.C. § 4312 (which does not require proof
of intent); and (2) claims for intentional discrimination/retaliation under 38 U.S.C. § 4311 (“An
employer may not discriminate in employment against or take any adverse employment action
against any person because” of military service); Francis v. Booz, Allen & Hamilton, Inc., 452
F.3d 299, 303 (4th Cir. 2006) (noting that intent is not an element of a reemployment claim)
(citing 20 C.F.R. § 1002.33). Jbari alleges both types of claims, but MPD moves to dismiss only
the reemployment claim.
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USERRA Section 4312(a) guarantees reemployment upon return from leave to “any
person whose absence from a position of employment is necessitated by reason of service in the
uniformed services.” 38 U.S.C. § 4312(a). A service member must show “proper notice to his
employer in advance of his departure, a service period of less than five years, a timely request for
reemployment accompanied by proper documentation, and a separation from military service
under ‘honorable conditions.’” See Petty v. Metro. Gov’t of Nashville & Davidson Cty., 687
F.3d 710, 716–17 (6th Cir. 2012) (citing 38 U.S.C. § 4312); 38 U.S.C. § 4304. An employer
may escape liability if it can show that reemployment would impose an undue hardship; “the
employer’s circumstances have so changed as to make such reemployment impossible or
unreasonable”; or the service member’s position was “for a brief, nonrecurrent period and there
[wa]s no reasonable expectation that such employment w[ould] continue indefinitely or for a
significant period.” 38 U.S.C. § 4312(d)(1).
The majority of courts have held that the Section 4312 reemployment provision entitles a
service member to return to work, but provides no protection thereafter. See, e.g., Hart v. Family
Dental Grp., PC, 645 F.3d 561, 563 (2d Cir. 2011) (affirming judgment as a matter of law for the
employer where plaintiff returned to work on January 17 and was notified on January 20 that he
would be terminated in sixty days); Coyaso v. Bradley Pac. Aviation, Inc., No. 11–00267
JMS/RLP, 2012 WL 1580470, at *13 (D. Haw. May 3, 2012) (granting summary judgment for
the employer where plaintiff was placed on leave the same day he returned to work, and was
later terminated without ever resuming his job duties).
In Francis v. Booz, Allen & Hamilton, Incorporated. 452 F.3d 299, 303-4 (4th Cir. 2006),
one of the cases upon which MPD relies, the Fourth Circuit examined USERRA’s statutory
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structure in concluding that the reemployment provision only protects a service member up to the
time she returns to work. The Court noted that Section 4312 provides that a service member
“shall” be reemployed upon return from service, and explained that Section 4312 serves only to
guarantee reemployment regardless of the employer’s intent. Id. at 303; see 38 U.S.C. § 4312(a).
Section 4311 on the other hand, “prohibits discrimination with respect to any benefit of
employment against persons who serve in the armed services after they return from a deployment
and are reemployed.” Francis, 452 F.3d at 304 (citing Warren v. IBM, 358 F. Supp. 2d 301, 310
(S.D.N.Y. 2005)); see 38 U.S.C. § 4311. Another provision, Section 4316 “converts the
otherwise at-will employment status of covered individuals to one in which they are protected
from dismissal except for cause for a period of time” after reemployment. Francis, 452 F.3d at
304 (citing Warren, 358 F. Supp. 2d at 310).
Viewing these provisions together, the Court in Francis held that Ҥ 4312 only entitles a
service person to immediate reemployment and does not prevent the employer from terminating
him the next day or even later the same day.” Francis, 452 F.3d at 304 (citing Jordan v. Air
Prods. & Chems., Inc., 225 F. Supp. 2d 1206, 1208 (C.D. Cal. 2002)) (internal quotations
omitted). The court reasoned:
If § 4312 provided ongoing protection after reemployment, it would subsume the
specific guarantees of §§ 4311 and 4316. “We are ‘loath’ to read one statutory
provision so as to render another provision of the same statute superfluous.”
Gonzales, 419 F.3d at 283 (quoting Cooper Indus. v. Aviall Servs., Inc., 543 U.S.
157, 125 S. Ct. 577, 160 L. Ed. 2d 548 (2004)). Congress carefully constructed
USERRA to provide comprehensive protection to returning veterans, while
balancing the legitimate concerns of employers. We will not upset that balance and
render USERRA sections meaningless by adopting [an] overly broad interpretation
of § 4312 . . . .
452 F.3d at 304-5 (internal alterations omitted). Finally, the Court noted that “[t]he apparent
harshness of this result is addressed by the fact that §§ 4311 and 4316 operate to protect the
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employee as soon as she is reemployed.” Id. at 304; see also, Hernandez v. Results Staffing, Inc.,
677 F. App’x 902, 908 n.5 (5th Cir. 2017) (explaining that once the service member is
reemployed, “§§ 4311 and 4316 protect him from discrimination, but allow an employer to
terminate him so long as the employer can show ‘cause’ unrelated to the veteran’s military
service.”) (citing 38 U.S.C. §§ 4311, 4316(c)).
USERRA does not define the term “reemployment,” which is at the heart of the parties’
dispute. MPD moves to dismiss Jbari’s reemployment claim because Jbari concedes that he
returned to work at the conclusion of his military leave, and he therefore was reemployed. Jbari
counters that MPD did not reemploy him in “good faith” but instead suspended him immediately
upon his return from military leave and terminated him several days later, after he received (but
had not yet disclosed) military orders for another leave.
This “good faith” requirement was first articulated in Vahey v. General. Motors
Corporation, 985 F. Supp. 2d 51 (D.D.C. 2013). In Vahey, plaintiff was a GM North America
employee, meaning he was not “assigned to the headcount of any particular GM facility,”
although he was physically assigned to various facilities for temporary periods. 985 F. Supp. 2d
at 54. At the time he went on military leave, Vahey was assigned to a Delaware facility and, as
the end of his leave approached, he was informed by GM Human Resources that the Delaware
facility was scheduled for closure. Id. at 55. Human Resources “said something about a
separation package,” and suggested Vahey “would be getting severed.” Id.
After his military discharge, Vahey returned to the Delaware facility, and was told he
would be added to the employment rolls effective his last day of military service, and then would
be terminated in approximately two weeks, at which time he would receive severance pay. Id.
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The record did not indicate that Vahey actually performed any job duties during his two weeks
on the payroll. Id. GM moved for summary judgment, arguing that Vahey’s claim failed
because the company reemployed him to his same position and seniority date. Id. at 59.
Rejecting this argument, the court noted that “USERRA ‘must be broadly construed in
favor of its military beneficiaries,’” id. at 59 (citing Francis, 452 F.3d at 303), and that Congress
had authorized district courts to use their “full equity” powers to vindicate veterans’ USERRA
rights. Vahey, 985 F. Supp. 2d at 60 (some citations omitted) (citing Serricchio v. Wachovia
Secs. LLC, 658 F.3d 169, 174 (2d Cir. 2011)). The court therefore refused to “allow form to
prevail over substance” and instead looked behind the actual job description in assessing GM’s
claim that it had reemployed Vahey to the same position. 985 F. Supp. 2d at 60 (citing Bride v.
Baker, 37 App. D.C. 231, 236 (D.C. Cir. 1911) (“Equity looks to substance, and not to form, and
will not lend its aid to one whose sole ground for seeking such aid is based upon a
technicality.”); EEOC v. Sears, Roebuck & Co., 839 F.2d 302, 346 (7th Cir. 1988) (“[C]ourts
have invariably gone beyond job descriptions to analyze, often in-depth, actual job duties and job
performance.”)). The court held that a reasonable fact finder could determine that GM did not
reemploy Vahey to the same position he previously held, but instead “‘reemployed’ him into
layoff status.” 985 F. Supp. 2d at 60.
The court in Vahey acknowledged the existence of contrary authority such as Francis, but
explained that those cases
anticipated a situation where the veteran was actually reemployed in good faith,
with at least the possibility of continued employment of indefinite length—not the
pro forma, nominal reinstatement that took place here, in which all parties were
aware that Vahey did not even need to show up to work, and that he would surely
be officially terminated just two weeks later.
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985 F. Supp. 2d at 60 (citing Petty, 687 F.3d at 718 (asking whether the defendant “truly
reemployed” the plaintiff)) (emphasis in original).
Relying on Vahey, Jbari argues that this court should not allow form to prevail over
substance, but instead recognize that MPD failed to reemploy him in “good faith.” Jbari also
points out that Vahey was decided at the summary judgment stage, rather than on a motion to
dismiss, and that this court need not consider at this juncture whether the certification ride was
evidence of good faith or whether MPD decided to terminate him before he returned. Instead, he
argues, the pertinent issue is whether he pleads sufficient facts to support a reemployment claim.
The court finds that Jbari has not pleaded sufficient facts to support his USERRA
reemployment claim, and his reliance on Vahey is misplaced. In Vahey, the court was tasked
with determining whether GM reemployed Vahey in the same position he would have held,
absent taking leave, as required by Section 4313,6 not Section 4312, which simply requires
“reemployment” so long as the service member satisfies certain preconditions. See Vahey, 985
F. Supp. 2d at 58-60. In order to do so, the court looked beyond the job description to determine
whether Vahey returned to work performing similar duties, or any duties at all. See id. at 59-60.
In doing so, the court necessarily applied a “good faith” standard to interpret the statute in a
manner consistent with its Congressional intent.
In contrast, the circumstances here do not require such an inquiry. Jbari does not contend
that he returned to work in a position other than the one he held when he departed for leave, and
6
Section 4313 requires an employer to “promptly” reemploy the service member to “the
position of employment in which the person would have been employed if the continuous
employment of such person with the employer had not been interrupted by such service . . . .” 38
U.S.C. § 4313(a)(1)(A).
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he does not assert a claim under Section 4313. Instead, he alleges that he returned to work on
January 25, met with his supervisor on January 26 and was informed he was to be suspended for
two days, but the following day he performed his job duties by going on a certification ride, and
was terminated three days later—five days after he returned to work. Amend. Compl. ¶¶ 55-56,
58, 60. In Vahey, however, the plaintiff did not return to his job duties, and “all parties were
aware that Vahey did not even need to show up to work, and that he would surely be officially
terminated just two weeks later.” 985 F. Supp. 2d at 60.
Finally, Jbari’s argument that his reemployment claim should proceed because a motion
to dismiss—as opposed to a motion for summary judgment—tests only the sufficiency of the
pleadings, is unavailing. Jabari himself pleads facts in his Complaint which defeat a
reemployment claim. Further pleading or discovery will not alter Jbari’s concession that he was
reemployed before he was terminated, and therefore the court will grant Defendant’s motion to
dismiss Jbari’s Section 4312 USERRA reemployment claim with prejudice. To the extent Jbari
uncovers evidence that MPD planned to terminate him after his return, his Section 4311 claim
for discrimination and retaliation provides the basis for relief.
B. Title VII and DCHRA Claims against MPD (Both Counts VII)
Jbari is of Moroccan descent, has a brown complexion, is the father of a newborn7 and is
a Muslim. Am. Compl. ¶¶ 21-25. He claims that MPD discriminated against him in violation of
7
In addition to the same protections afforded under Title VII, the DCHRA also protects against
discrimination based on “family responsibilities.” See McNair v. D.C., 213 F. Supp. 3d 81, 86
(D.D.C. 2016) (citing D.C. Code § 2-1402.11(a)(1)). MPD has not taken a position on whether
the DCHRA provides protection for Jbari’s status as a new father. See Defs. Mot. to Dismiss p.
10 n. 4.
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Title VII and the DCHRA, when Captain Mongal instructed him to return to work before his
family leave expired, when MPD suspended him8 upon his return from military leave, and when
MPD terminated him. Id. ¶¶ 218-20, 237-239.
MPD argues that Jbari’s allegations are insufficient to state a claim for relief under Title
VII and the DCHRA because they are conclusory,9 and Jbari has not alleged sufficient facts to
support an inference of discrimination, such as an allegation that MPD treated similarly situated
employees outside of his protected class more favorably. Defs. Mot. to Dismiss Br. pp. 9-10.
Absent such facts, MPD argues, it is unreasonable to infer that Jbari’s protected status was the
reason for his treatment. Id.
Jbari argues that his proposed Second Amended Complaint, which alleges, based on
information and belief, that he was treated differently than others outside of his protected class,
but which does not identify comparators, solves any Title VII and DCHRA pleading
deficiencies. He relies on McNair v. District of Columbia., 213 F. Supp. 3d 81, 86–87 (D.D.C.
2016), in which the plaintiff alleged discrimination in not being allowed to work from home,
claiming that unnamed persons of a different race were permitted to do so. In denying
defendant’s motion to dismiss, the court found that plaintiff’s claims, although “lack[ing]
specifics,” were actionable because she alleged the employer took an adverse employment action
against her, but did not do so with respect to similarly situated employees of a different race. Id.
8
Jbari does not allege that he was actually suspended, but that Parker “decided” to suspend him
for two days. See Amend. Compl. ¶ 57.
9
Title VII and DCHRA claims are analyzed under the same legal standard. Slate v. Public
Defender Service for D.C., 31 F. Supp. 3d 277, 290 n.3 (D.D.C. 2014); Carpenter v. Fed. Nat’l
Mortg. Ass’n, 165 F.3d 69, 72 (D.C. Cir. 1999).
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at 87. The court reasoned that this was sufficient to put the employer “on basic notice of her
claim against it.” Id.; see also Fed. R. Civ. P. 8(a). Other courts have also allowed plaintiffs to
proceed at the motion to dismiss stage without naming comparators. See, e.g., Boykin v.
KeyCorp, 521 F.3d 202, 215 (2d Cir. 2008) (reversing district court’s dismissal of complaint
where plaintiff alleged a bank discriminated against her by denying her a loan while treating
white customers more favorably, but did not identify comparators). Courts have also permitted
claims for disparate treatment based upon information and belief. See, e.g., Arista Records, LLC
v. Doe 3, 604 F.3d 110, 119–20 (2d Cir. 2010) (J. Sotomayor) (“The Twombly plausibility
standard, which applies to all civil actions, . . . does not prevent a plaintiff from pleading facts
alleged upon information and belief where the facts are peculiarly within the possession and
control of the defendant.”) (citations omitted).
The court finds that Jbari’s allegations—based on information and belief—that MPD
treated persons outside of his protected class more favorably, coupled with his allegations
regarding MPD’s responses to his approved leaves, are sufficient to support his Title VII and
DCHRA claims. Jbari alleges that he obtained prior approval for all leaves, but that MPD: (1)
ordered him to return from both family leave and military leave early; (2) threatened to terminate
him for taking the approved leaves; (3) ignored evidence that he had obtained approval for leave
and decided to suspended him because he was purportedly AWOL; and (4) terminated him
shortly after he returned from leave. He further alleges in his proposed Second Amended
Complaint that he was treated less favorably than others outside of his protected class. See e.g.,
Prop. Second Am. Compl. ¶¶ 233-36, 256-260. These factual allegations, taken together, are
enough to create an inference that MPD acted with discriminatory intent.
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C. Motion for Leave to File Second Amended Complaint
Federal Rule of Civil Procedure 15(a) provides that leave to amend a complaint “shall be
freely given when justice so requires.” See Firestone v. Firestone, 76 F.3d 1205, 1208 (D.C. Cir.
1996). As the Supreme Court has explained:
In the absence of any apparent or declared reason—such as undue delay, bad faith
or dilatory motive on the part of the movant, repeated failure to cure deficiencies
by amendments previously allowed, undue prejudice to the opposing party by virtue
of allowance of the amendment, futility of amendment, etc.—the leave sought
should, as the rules require, be “freely given.”
Foman v. Davis, 371 U.S. 178, 182 (1962).
In his proposed Second Amended Complaint, Jbari seeks to add the allegations discussed
above related to his Title VII and DCHRA claims, and to:
1) correct the current numbering errors;
2) add six individual defendants against whom he asserts individual liability claims
pursuant to USERRA; and 10
3) add DCHRA individual liability claims.
ECF No. 20, Mot. to Amend. p. 1; see ECF No. 22, Prop. Second Am. Compl. p. 2 n.1.
1. DCHRA Individual Liability Claims
Jbari explains in his motion for leave to amend, and in a footnote in the proposed Second
Amended Complaint, that he seeks to “assert one new count of discrimination under the DCHRA
against” the individual Defendants. Mot. to Amend. p. 4; Prop. Second Am. Compl. p. 2 n.1.
However, Jbari did not include a count asserting DCHRA individual liability in the proposed
10
As discussed above, Jbari included a count for individual liability under USERRA in his
current Complaint, but failed to list any individual Defendants in the case caption.
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Second Amended Complaint. Therefore, he has not sufficiently pleaded the claim and the court
will deny—without prejudice—Jbari’s motion to add this count.
MPD objects to the DCHRA individual liability claims because it contends that Jbari
failed to assert sufficient facts to establish that any of the individual defendants are subject to
liability. Although Jbari alleges, in the paragraphs identifying the parties, that each of the
defendants “had decision making authority to control the terms and conditions of Jbari’s
employment,” see Prop. Second Am. Compl. ¶¶ 3-8, MPD argues these allegations do not pass
muster and urges the court to deny Jbari’s motion to amend as it relates to these claims.
Jbari did not file a reply in support of his motion on this issue and therefore the court will
treat the issue as conceded. See Amiri v. Gelman Mgmt. Co., 734 F. Supp. 2d 1, 4 (D.D.C.
2010), aff’d, 427 F. App’x 17 (D.C. Cir. 2011) (“Plaintiff’s opposition fails to address this
argument, and the Court treats the matter as conceded.”) (citing LCvR 7(b)). Should Jbari seek
leave to re-plead these claims, he must either include additional factual allegations or address
why his alleged facts suffice to support DCHRA claims for individual liability.
2. USERRA Individual Liability Claims
MPD argues that Jbari’s motion to amend his USERRA individual liability claims should
be denied because the claims are not actionable. MPD relies primarily on two Ninth Circuit
cases: Townsend v. University of Alaska, 543 F.3d 478, 486–87 (9th Cir. 2008) and Rimando v.
Alum Rock Union Elementary School District, 356 Fed. Appx. 989, 991 (9th Cir. 2009). In
Townsend, the Court rejected individual liability claims under USERRA Section 4323:11
11
Section 4323, “Enforcement of rights with respect to a State or private employer” provides in
relevant part:
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USERRA expressly creates only two private causes of action: (1) an action brought
by an individual against a State (as an employer). . . ; and (2) an action brought
against a private employer. . . See 38 U.S.C. § 4323(a)(2). Despite the plain text
of the statute, Townsend argues that USERRA also creates a cause of action against
the supervisors, because the Act defines “employer” to include “a person,
institution, organization, or other entity to whom the employer has delegated the
performance of employment-related responsibilities,” 38 U.S.C. § 4303(4)(A)(i)
(emphasis added), and the supervisors are persons. The USERRA cause of action,
however, arises against “a State (as an employer).” See id. § 4323(a)(2). Individual
supervisors are not included in the definition of “State.” See id. § 4303(14)
(defining “State”). Although the cause of action can be brought against a “State (as
an employer),” “as an employer” describes the capacity in which the State can be
sued; it does not create a cause of action against individual state employees even if
they exercise supervisory responsibility. Thus, an action under USERRA is
available only against the State “as an employer,” and not in some other capacity. .
. . Thus, Townsend’s attempt to sue individual supervisors under the cause of action
which the Act provides against a “State (as an employer)” fails. Nor are the
individual state supervisors “private employers.” While the supervisors may fit
under the definition of “employer,” we agree with the district court that it would do
violence to the language of the statute to consider a state employee-supervisor a
“private employer.”
543 F.3d 478, 486 (9th Cir. 2008) (emphasis in original); see also Rimando, 356 Fed. Appx. at
991 (affirming dismissal of plaintiff’s induvial liability claim against supervisor because it was
“foreclosed by [the court’s] holding in Townsend”).
(1) A person may commence an action for relief with respect to a complaint against
a State (as an employer) or a private employer if the person—
(A) has chosen not to apply to the Secretary for assistance under section 4322(a)
of this title;
(B) has chosen not to request that the Secretary refer the complaint to the
Attorney General under paragraph (1); or
(C) has been refused representation by the Attorney General with respect to the
complaint under such paragraph.
38 U.S.C. § 4323 (emphasis added).
Page 16 of 17
Jbari argued in his motion to amend that the USERRA individual liability claims are
viable because they were “properly raised” in the operative complaint and MPD was already
aware of the facts underlying the claim. Pls. Mot. to Amen. pp. 5-6. However, Jbari did not file
a reply addressing MPD’s argument that the claims are not cognizable. Therefore, the court will
also treat this argument as conceded and deny Jbari’s motion to amend to add USERRA
individual liability claims. If Jbari seeks to re-plead the claims, he shall explain in detail why the
court should decline to follow the Ninth Circuit’s reasoning in Townsend and Rimando.
IV. CONCLUSION
For the reasons set forth above, the court will GRANT MPD’s motion to dismiss in part,
and DENY the motion in part. The court will dismiss Plaintiff’s USERRA reemployment claim
with prejudice. In all other respects, MPD’s motion will be denied.
The court will also GRANT Jbari’s motion for leave to file a Second Amended
Complaint in part, and DENY the motion in part. The court will grant the motion with respect to
Jbari’s additional Title VII and DCHRA factual allegations. The court will deny the motion in
all other respects, including addition of the individual defendants. 12
Date: March 31, 2018
Tanya S. Chutkan
TANYA S. CHUTKAN
United States District Judge
12
The court interprets Jbari’s use of the plural form in the Title VII count of the proposed
Second Amended Complaint, Prop. Second Am. Compl. ¶¶ 217-232, as a clerical error, because
there is no individual liability under this statute. Gary v. Long, 59 F.3d 1391, 1399 (D.C. Cir.
1995).
Page 17 of 17