United States District Court, District of Columbia
S. CHUTKAN UNITED STATES DISTRICT JUDGE.
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.
to Federal Rule of Civil Procedure 12(b)(6), MPD seeks
dismissal of the following claims:
1) Failure to reemploy under USERRA (Count VI);
2) Title VII discrimination (Count VII); and
3) DCHRA discrimination (Count VII).
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.
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. 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.
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 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.
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. 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.
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).
USERRA Failure to Reemploy Claim (First Count VI)
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. ¶
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.
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.
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).
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).
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 ...