Page 1 of 17 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 c laims against the District of Columbia Metropolitan Police Department (“MPD”) following his termination as a probat ionary police officer. Jbari used family medical leave to car e for his newborn son and claim s that MPD violated both the federal Family and Medical Leave Act (“FMLA”) and the District of Columbia Family and Medical Leave Act (“DCFMLA”), by i nterfering 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 mil itary leave to ser ve in the United States Army Reserve and he alleges that MPD discriminated again st him for taking leave, failed to reemploy him upon his return, and terminated him in violatio n 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 Ara b descent and a Muslim—also bring s 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 Right s Act (“DCHRA”), D.C. Code § 2- 1402.01 et seq

.Page 2 of 17 Pursuant to Federal Rule of Civ il Procedure 12(b)(6), MPD seeks dismissal of the following claims: 1) Failure to reemploy under USERRA (Count VI); 1 2) Title VII discrimi nation (Count VII); and 3) DCHRA discrim ination (Count VII). 2
See ECF No. No. 17; see ECF No. 12, Amend. Compl. In addi tion 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 cour t will GRANT both motions in p art, and DENY them in part.
I. BAC KGROUND Jbari became an employee of MPD on August 25, 2014 and graduate d from the police academy in April of the followi ng year. Am. Compl. ¶¶ 32-33. Several months later, he requested family medical leave t o care for his newborn child fr om September 18 through November 14, 2015. Id. ¶ 35. A family and medical leave co ordinator emailed Jbari an approved leave request for t hree hundred and twenty hours of pa id leave. Id. ¶ 39. Two days before his family medical leave expired, MPD Captain Mongal “in appropriately instructed” Jbari to report to work immediately. Id. ¶ 41. Jbari responded by resubmitting his leave request to hi s

1 Jbari’s Complaint lists Count V I twice: the first Count VI r elates to Jbari’s USERRA failure to reemploy claim. See Amend. Compl. ¶¶ 168-176. The s econd Count VI involves USERRA individual liability claims, see id . ¶¶ 177- 204, but Jbari failed to na me any individual defendan ts 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 cont ains Count VII twice: both counts reference Title VI in the heading. See Amend. Compl. ¶¶ 205-222. However, t he factual allegations in the second Count VII actually relate to his DCH RA claim against MPD. Id . ¶¶ 223-241.Page 3 of 17 supervisor, Sergeant Hrebenak. 3 Id. ¶ 42. Jbari also provided Hrebenak with military orders requiring Jbari to report for duty from November 16 (two days a fter his family leave was set to expire) through December 18. Id. ¶¶ 42-43. Shortly thereafter, Hrebenak emailed Jbari, confirming that his family medi cal leave had previously been ap proved 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 retur ned to MPD the following day. Id. ¶ 44. However, at some point prio r 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 chan nels.” Id . ¶ 50. Despite informing three supervisors about his orders, a few days into h is third leave, on January 8, Jbari received a call from MPD Comma nder Groomes who allegedly said “ Do you want to stay with the MPD? If you do, you have to c ome back to work, and you’ve been AWOL for two (2) months.” Id . ¶¶ 47-49. At that juncture, Jba ri was not scheduled to retur n from military leave for approximately nine days. On the same day that Groomes call ed, an MPD assistant 4 emailed Jbari requesting that he meet wit h 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 bee n extended through January 24 but, after conferring with his military supe rvisors, he agreed to attend the

3 It is unclear who directly supe rvised Jbari and why his commun ications about his various leave requests involved numerous supervisors.

4 The Complaint refers to her as “an Assistant” and does not ela borate.Page 4 of 17 meeting. Id. ¶¶ 52-53. Groomes later cancell ed the meeting and Jbari retur ned to MPD as scheduled on January 25. Id. ¶¶ 54-55. The following day, January 26, Jbari met with MPD Commander Par ker 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 Jba ri went on a certification rid e. 5 Id . ¶ 58. One day later, Jbari received orders for a fourt h military tour of duty, but there i s 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 terminate d Jbari for alleged performan ce deficiencies during his four certification rides. Id. ¶¶ 58, 60-61.
II. LEGAL STA NDARD A motion to dismiss under Fed. R. C iv. 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 suffi cient factual matter, accepted as true, to ‘state a claim to rel ief 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 reasonab le inference that the defendant is liable for the misconduct alleged.” Id. In employment discriminati on cases, although plaintiffs

5 According to MPD, a “certification ride is a field test wher e a sergeant assess a probationary officer’s abilities and knowledge while out on patrol, armed an d wielding full police power. Probationary officers are ‘uncer tified’ until they pass this fi eld test. Once certified, they are allowed to go on patrol alone.” Defs. Mot. to Dismiss Br. p. 4

.Page 5 of 17 must establish a plausible cl aim for relief, they do not need t o “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. ANAL YSIS A. USERRA Failure to Reempl oy Claim (First Count VI) MPD argues that this court shoul d dismiss Jbari’s USERRA reempl oyment 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 w ith three goals in mind: (1) to encourage noncareer servic e 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 prov iding for the prompt reemployment of such persons upon their completion of such serv ice; and (3) to prohibit discrimination against persons because of their servic e 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 omitte d). Service members may bri ng two types of USERRA actions: (1) claims for fa ilure to reemploy under 38 U.S.C. § 4 312 (which does not require proof of intent); and (2) claims for in tentional discrimination/retal iation 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 ele ment of a reemployment claim) (citing 20 C.F.R. § 1002.33). Jbari alleges both types of cla ims, but MPD moves to dismiss on ly the reemployment claim.Page 6 of 17 USERRA Section 4312(a) guarantee s reemployment upon return from leave to “any person whose absence from a position of employment is necessita ted by reason of service in the uniformed services.” 38 U.S.C. § 4312(a). A service member mu st show “proper notice to his employer in advance of his depa rture, a service period of less than five years, a timely request for reemployment accompanied by proper documentation, and a separat ion 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) (ci ting 38 U.S.C. § 4312); 38 U.S.C. § 4304. An employer may escape liability if it can s how that reemployment would imp ose an undue hardship; “the employer’s circumstances have s o changed as to make such reempl oyment impossible or unreasonable”; or the service memb er’s position was “for a brie f, nonrecurrent per iod and there [wa]s no reasonable expectation tha t such employment w[ould] co ntinue indefinitely or for a significant period.” 38 U. S.C. § 4312(d)(1). The majority of courts have he ld that the Section 4312 reemploy ment provision entitles a service member to return to w ork, but provides no protection th ereafter. See, e.g. , Hart v. Family Dental Grp., PC , 645 F.3d 561, 563 (2d Cir. 2011) (affirming judgment as a mat ter 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) (grantin g summary judgment for the employer where plaintiff was placed on leave the same day h e returned to work, and was later terminated w ithout ever resumi ng 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 re lies, the Fourth Circuit exam ined USERRA’s statutoryPage 7 of 17 structure in concluding that t he reemployment provision only pr otects a service member up to the time she returns to work. The Court noted that Section 4312 pr ovides that a service member “shall” be reemployed upon retur n from service, and explained t hat Section 4312 serves only to guarantee reemployment regardle ss of the employer’s intent. Id . at 303; see 38 U.S.C. § 4312(a). Section 4311 on the other hand, “prohi bits discrimination with respect to any benefit of employment against persons who ser ve in the armed services afte r 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 provisi on, Section 4316 “converts the otherwise at-will employment status of covered individuals to o ne in which they are protected from dismissal except for cause for a period of time” after ree mployment. Francis , 452 F.3d at 304 (citing Warren , 358 F. Supp. 2d at 310). Viewing these provisions together, the Court in Francis held that “§ 4312 o nly entitles a service person to immediate reem ployment and does not prevent t he 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 quotat ions omitted). The court reasoned: If § 4312 provided ongoing protection after reemployment, it wo uld subsume the specific guarantees of §§ 4311 and 4316. “We are ‘loath’ to re ad 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 carefu lly constructed USERRA to provide comprehensive p rotection to returning veteran s, while balancing the legitimate concerns of employers. We will not up set that balance and render USERRA sections meaningless by adopting [an] overly broa d 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 thePage 8 of 17 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’ unrelate d 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 becau se Jbari concedes that he returned to work at the conclusion of his military leave, and h e therefore was reemployed. Jbari counters that MPD did not reempl oy him in “good faith” but inst ead suspended him immediately upon his return from military leav e and terminated him several days later, after he received (but had not yet disclosed) military o rders for another leave. This “good faith” requirement w as 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 assigne d to various facilities for t emporary periods. 985 F. Supp. 2d at 54. At the time he went on military leave, Vahey was assign ed to a Delaware facility and, as the end of his leave approache d, he was informed by GM Human Re sources 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 seve red.” Id

. After his military discharge, Vah ey returned to the Delaware fa cility, and was told he would be added to the employment rolls effective his last day o f military service, and then would be terminated in approximately t wo weeks, at which time he woul d receive severance pay. Id

.Page 9 of 17 The record did not indicate that Vahey actually performed any j ob duties during his two weeks on the payroll. Id . GM moved for summary judgment , arguing that Vahey’s claim fa iled because the company reemployed him to his same position and sen iority date. Id. at 59. Rejecting this argument, the cour t 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 t o use their “full equity” power s 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 refus ed to “allow form to prevail over substance” and inste ad looked behind the actual jo b 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 subst ance, and not to form, and will not lend its aid to one w hose 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 descri ptions to analyze, often in-depth, actual job duties and job performance.”)). The court hel d that a reasonab le fact finder could determine that GM did not reemploy Vahey to the same position he previously held, but ins tead “‘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 reemploy ed in good faith, with at least the possibility o f continued employment of indefi nite 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.Page 10 of 17 985 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 cour t should not allow form to prevail over substance, but instead recogni ze that MPD failed to reemploy hi m in “good faith.” Jbari also points out that Vahey was decided at the summary judgm ent stage, rather than on a mo tion to dismiss, and that this court nee d not consider at this juncture whether the certi fication ride was evidence of good faith or whethe r MPD decided to terminate him before he returned. Instead, he argues, the pertinent issue is w hether he pleads sufficient fac ts 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 r eemployed Vahey in the same positi on he would have held, absent taking leave, as required by Section 4313, 6 not Section 4312, which simply requires “reemployment” so long as the ser vice member satisfies certain preconditions. See Vahey , 985 F. Supp. 2d at 58-60. In order t o do so, the court looked beyo nd the job description to determine whether Vahey returned to wor k performing similar duties, or an y duties at all. See id. at 59-60. In doing so, the court necessarily applied a “good faith” stand ard to interpret th e statute in a manner consistent with its Congressional intent. In contrast, the circumstances here do not require such an inqu iry. Jbari does not contend that he returned to work in a pos ition other than the one he he ld 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 empl oyed if the continuous employment of such person with the employer had not been interr upted by such service . . . .” 38 U.S.C. § 4313(a)(1)(A).Page 11 of 17 he does not assert a claim unde r Section 4313. Instead, he all eges that he returned to work on January 25, met with his supervis or on January 26 and was infor med 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—f ive days after he returned to work. Amend. Compl. ¶¶ 55-56, 58, 60. In Vahey , however, the plaintiff did not r eturn 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 pr oceed because a motion to dismiss—as opposed to a motion for summary judgment—tests on ly the sufficiency of the pleadings, is unavailing. Jabari himself pleads facts in his C omplaint which defeat a reemployment claim. Further pleading or discovery will not alt er Jbari’s concession that he was reemployed before he was termina ted, and therefore the court wi ll grant Defendant’s motion to dismiss Jbari’s Section 4312 USE RRA reemployment claim with pre judice. To the extent Jbari uncovers evidence that MPD planne d to terminate him after his r eturn, his Section 4311 claim for discrimination and retaliati on provides the basis for relie f. B. Title VII and DCHRA Claims against MPD (Both Counts VII) Jbari is of Moroccan descent, ha s a brown complexion, is the fa ther of a newborn 7 and is a Muslim. Am. Compl. ¶¶ 21-25. He claims that M PD discriminated against him in violation of

7 In addition to the same protec tions afforded under Title VII, the DCHRA also protects against discrimination based on “famil y responsibilities.” See McNair v. D.C. , 213 F. Supp. 3d 81, 86 (D.D.C. 2016) (citing D.C. C ode § 2-1402.11(a)(1)). MPD has no t taken a position on whether the DCHRA provides protection for Jbari’s status as a new fathe r. See Defs. Mot. to Dismiss p. 10 n. 4.Page 12 of 17 Title VII and the DCHRA, when Captain Mongal instructed him to return to work before his family leave expired, when MPD suspended him 8 upon his return from military leave, and when MPD terminated him. Id . ¶¶ 218-20, 237-239. MPD argues that Jbari’s allegatio ns 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 discrimi nation, such as an allegation t hat MPD treated similarly situated employees outside of his protecte d class more favorably. Defs. Mot. to Dismiss Br. pp. 9-10. Absent such facts, MPD argues, i t is unreasonable to infer that Jbari’s protecte d status was the reason for his treatment. Id

. Jbari argues that his proposed S econd Amended Complaint, which alleges, based on information and belief, that he w as treated differently than ot hers outside of his protected class, but which does not identify com parators, solves any Title VII a nd 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 a lleged discrimination in not bei ng allowed to work from home, claiming that unnamed persons of a different race were permitte d to do so. In denying defendant’s motion to dismiss, t he court found that plaintiff’s claims, although “lack[ing] specifics,” were actionable because she alleged the employer to ok an adverse employment action against her, but did not do so wit h respect to similarly situat ed employees of a different race. Id

.

8 Jbari does not allege that he was actually suspended, but th at 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).Page 13 of 17 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). O ther courts have also allowed plaintiffs to proceed at the motion to dismiss stage without naming comparato rs. See, e.g., Boykin v. KeyCorp, 521 F.3d 202, 215 (2d Cir. 2008) (revers ing district court’s d ismissal of complaint where plaintiff alleged a ba nk discriminated against her by den ying her a loan while treating white customers more favorabl y, but did not identify comparator s). Courts have also permitted claims for disparate treatme nt based upon information and belie f. 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 t o all civil actions, . . . does not pr event a plaintiff from pleading facts alleged upon information and belief w here the facts are peculia rly within the possession and control of the defendant.”) (citations omitted). The court finds that Jbari’s allegations—based on information a nd belief—that MPD treated persons outside of his pr otected class more favorably, coupled with his allegations regarding MPD’s responses to his approved leaves, are sufficien t to support his Title VII and DCHRA claims. Jbari alleges t hat he obtained prior approval fo r 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 h e had obtained approval for leave and decided to suspended him because he was purportedly AWOL; a nd (4) terminated him shortly after he returned from leave. He further alleges in hi s proposed Second Amended Complaint that he was treated l ess favorably than others outsid e of his protected class. See e.g. , Prop. Second Am. Compl. ¶¶ 233 -36, 256-260. These factual alle gations, taken together, are enough to create an inference that MPD acted with discriminator y intent.Page 14 of 17 C. Motion for Leave to File Second Amended Complaint Federal Rule of Civil Procedure 15(a) provides that leave to am end a complaint “shall be freely given when justi ce 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 o r 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 opposi ng party by virtue of allowance of the amendment, futility of amendment, etc.—the leave sought should, as the rules requ ire, be “freely given.” Foman v. Davis, 371 U.S. 178, 182 (1962). In his proposed Second Amended Com plaint, Jbari seeks to add th e allegations discussed above related to his Title VII and DCHRA claims, and to: 1) correct the current numbering errors; 2) add six individual defendants a gainst whom he asserts individua l 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 f or leave to amend, and in a footn ote in the proposed Second Amended Complaint, that he seeks to “assert one new count of di scrimination under the DCHRA against” the individual Defe ndants. Mot. to Amend. p. 4; Prop. Second Am. Compl. p. 2 n.1. However, Jbari did not include a count asserting DCHRA individu al liability in the proposed

10 As discussed above, Jbari incl uded a count for individual li ability under USERRA in his current Complaint, but failed to l ist any individual Defendants in the case caption.Page 15 of 17 Second Amended Complaint. There fore, he has not sufficiently p leaded the claim and the court will deny—without prejudice—Jbar i’s motion to add this count. MPD objects to the DCHRA individua l liability claims because i t contends that Jbari failed to assert sufficient fact s to establish that any of the individual defendants are subject to liability. Although Jbari alleges, i n the paragraphs identifyi ng the parties, t hat each of the defendants “had decision making a uthority 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 d eny Jbari’s motion to amend as i t relates to these claims. Jbari did not file a reply in s upport of his motion on this iss ue and therefore the court will treat the issu e 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 fai ls to address this argument, and the Court treats the matter as conceded.”) (citin g LCvR 7(b)). Should Jbari seek leave to re-plead these claims , he must either include addition al factual allegations or address why his alleged facts suffice to s upport DCHRA claims for indiv idual liability.
2. USERRA Individual Liability Claims

MPD argues that Jbari’s moti on to amend his USERRA individual l iability claims should be denied because the claims are not actionable. MPD relies pr imarily 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 li ability claims under USERRA Sec tion 4323: 11

11 Section 4323, “ Enforcement of rights with respe ct to a State or private employ er” provides in relevant part:Page 16 of 17 USERRA expressly creates only tw o 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 caus e 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 superv isors 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 brough t 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 agains t individual s tate employees even if they exercise supervisory responsibility. Thus, an action unde r USERRA is available only against the State “as an employer,” and not in s ome other capacity. . . . Thus, Townsend’s attempt to sue individual supervisors und er the cause of action which the Act provides against a “State (as an employer)” fails . Nor are the individual state supervisors “pr ivate employers.” While the sup ervisors 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 emp loyee-supervisor a “private employer.” 543 F.3d 478, 486 (9th Cir. 2008) (empha sis in original); see also Rimando , 356 Fed. Appx. at 991 (affirming dismissal of plain tiff’s induvial liability clai m 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 co mplaint against a State (as an employer) or a pr ivate employer if the person— (A) has chosen not to apply to the S ecretary for assistance under s ection 4322(a) of this title; (B) has chosen not to request that t he Secretary refer the complain t to the Attorney General under paragraph (1); or
(C) has been refused represent ation by the Attorn ey General wit h respect to the complaint under such paragraph. 38 U.S.C. § 4323 (emphasis added).Page 17 of 17 Jbari argued in his motion to a mend that the USERRA individual liability claims are viable because they were “properl y raised” in the operative com plaint and MPD was already aware of the facts underlying t he claim. Pls. Mot. to Amen. pp . 5-6. However, Jbari did not file a reply addressing MPD’s argumen t that the claims are not cogni zable. 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 cl aims, he shall explain in detail why the court should decline to follow the Ninth Circuit’s reasoning in Townsend and Rimando

. IV. C ONCLUSION For the reasons set forth above, t he court will GRANT MPD’s mot ion to dismiss in part, and DENY the motion in part. The c ourt will dismiss Plaintiff’ s USERRA reemployment claim with prejudice. In all other resp ects, MPD’s motion will be de nied. The court will also GRANT Jbari ’s motion for leave to file a Se cond Amended Complaint in part, and DENY th e motion in part. The court will grant the motion with respect to Jbari’s additional Title VII a nd DCHRA factual allegations. Th e court will deny the motion in all other respects, including a ddition of the individual defend ants. 12

Date: March 31, 2018 

## Tanya S. Chutkan TANYA S. CHUTKAN United States District Judge

12 The court interprets Jbari’s u se of the plural form in the Ti tle VII count of the proposed Second Amended Complaint, Prop. Second Am. Compl. ¶¶ 217-232, a s a clerical error, because there is no individual liab ility under this statute. Gary v. Long , 59 F.3d 1391, 1399 (D.C. Cir. 1995).