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Jbari v. District of Columbia

United States District Court, District of Columbia

March 31, 2018

MOHAMMED JBARI, Plaintiff,
v.
DISTRICT OF COLUMBIA, Defendant.

          MEMORANDUM OPINION

          TANYA S. CHUTKAN UNITED STATES DISTRICT JUDGE.

         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.

         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 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 assistant[4] 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 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 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.

         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 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 “§ 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 ...

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