UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
) DARLENE BENNETT, ) ) ) Plaintiff, ) ) v. ) Civil Action No. 19-cv-3575 (TSC) ) JAFNAR GUEYE, Acting Chief ) (Operations & Regulatory) ) ) Defendant. ) )
MEMORANDUM OPINION
Plaintiff Darlene Bennett is an employee of the United States Commerce Department’s,
National Oceanic and Atmospheric Administration (“NOAA”). (Compl. ECF p. 7 ¶ 1.) 1 She brought
this race discrimination action against Jafnar Gueye, one of her NOAA supervisors, alleging
violations of Title VII, 42 U.S.C. § 2000e et seq., and the Whistleblower Protection Act, 5 U.S.C. §
2302(b)(8)-(9). (Compl. ECF pp. 1.) On April 17, 2020, the court dismissed this action, without
prejudice, upon motion by the Defendant. (ECF Nos. 8, 9.) Plaintiff now moves to reopen her case,
(ECF Nos. 10, 11), 2 but for the reasons set forth below, the court will deny the motion.
In his motion to dismiss this action, Gueye argued that Plaintiff could not proceed against him
in his individual capacity under Title VII. (ECF No. 6.) Plaintiff responded by disavowing any
claims against the agency and clarifying that her claims were only against Gueye for actions he took
1 When citing electronic filings throughout this Opinion, the Court cites to the ECF page number, not the page number of the filed document. 2 Plaintiff filed an Amended Motion to Reopen, (ECF No. 11), without seeking leave of court. Nonetheless, the court has considered the arguments raised therein. Page 1 of 5 as her supervisor. (See ECF No. 7, Pls. Resp. pp. 2-4, 15; ECF No. 8, Mem. Op. pp. 2-4.) Plaintiff
explained that she was proceeding separately against the agency in another Title VII lawsuit
challenging the conduct of other supervisors. (See ECF No. 7, Pls. Resp. pp. 2-4, 15.) Having
clarified that Plaintiff sought to proceed against Gueye individually in this case, the court granted his
motion to dismiss because an employee cannot be sued in an individual capacity under Title VII for
actions taken in the course of their employment. (Mem. Op. pp. 2-4); see Gary v. Long, 59 F.3d
1391, 1399 (D.C. Cir. 1995) (citing Busby v. City of Orlando, 931 F.2d 764, 772 (11th Cir. 1991));
Busby, 931 F.2d at 772 (holding that “[i]ndividual capacity suits under Title VII are . . .
inappropriate” because “relief granted under Title VII is against the employer, not individual
employees whose actions constituted a violation of [Title VII]”) (emphasis in original) (citations
omitted); Jarrell v. U.S. Postal Serv., 753 F.2d 1088, 1091 (D.C. Cir. 1985) (noting that “the head of
the agency is the only proper defendant in a Title VII action.”) (citing 42 U.S.C. § 2000e-16(c))
(some citations omitted). 3 The court also dismissed Bennett’s Whistleblower claim because it did not
appear that she had exhausted her administrative remedies. (Mem. Op. p. 4.)
Plaintiff now asks this court to reopen this case because Gueye has been promoted from
acting division chief to permanent chief, and because he is a “supervisor” with the authority to take
tangible employment actions. (ECF No. 10, Pls. Mot., ECF p. 2). But Gueye’s change in status does
not change this court’s analysis. Individual capacity Title VII claims are not actionable, and
Plaintiff’s reliance on Haybarger v. Lawrence County Adult Probation & Parole, 667 F.3d 408, 417
3 Plaintiff confirms in her most recent motion that her other employment action against NOAA involves claims relating to Gueye. (See ECF No. 10, Pls. Mot., ECF p. 2) (“He is also named in another pending lawsuit within this same court regarding case 1:18-cv-02098.”) Because Plaintiff’s other lawsuit is against the agency and she does not appear to assert individual liability claims against Gueye, that suit may proceed, providing she filed within the applicable limitations period and exhausted her administrative remedies. Page 2 of 5 (3d Cir. 2012) is misplaced because that case involved the viability of individual liability claims
under the Family and Medical Leave Act (“FMLA”), 29 U.S.C. § 2601 et seq., not Title VII, and
Plaintiff does not assert facts supporting an FMLA claim, nor did she assert such a claim in her
Complaint. 4
Plaintiff’s status as a “50 year old, African American female,” likewise does not warrant
reopening this case because neither Title VII, nor the Age Discrimination in Employment Act
(“ADEA”), 29 U.S.C. § 621 et seq., allow lawsuits against supervisors in their individual capacities.
See Smith v. Janey, 664 F. Supp. 2d 1, 8 (D.D.C. 2009) (finding that there is no individual liability
under the ADEA), aff’d sub nom. Smith v. Rhee, No. 09-7100, 2010 WL 1633177 (D.C. Cir. Apr. 6,
2010). Moreover, this court previously explained that Plaintiff had not pled facts supporting an age
discrimination claim, (See Mem. Op. p. 4 n.30.), and none of the additional factual allegations in her
motion support claims for age discrimination.
In her current motion, Plaintiff mentions the Notification and Federal Employee
Antidiscrimination and Retaliation Act (“No Fear”) Act, 5 U.S.C. § 2301 et seq., (ECF No. 10, Pls.
Mot., ECF p. 1), but she did not assert claims pursuant to that statute in her Complaint. Even had she
done so, none of “the few courts that have considered claims made under the Act . . . have found that
the Act provides a private cause of action or creates a substantive right . . . .” Beaulieu v. Barr, No.
CV 15-896 (TJK), 2019 WL 5579968, at *6 (D.D.C. Oct. 29, 2019) (citing Williams v. Spencer, 883
F. Supp. 2d 165, 182 (D.D.C. 2012); Glaude v. United States, 248 F. App’x. 175, 177 (Fed. Cir.
2007)).
4 Plaintiffs may not amend a complaint by way of responsive brief. Smith v. Mayor, 191 F. Supp. 3d 114, 116–17 (D.D.C. 2016), aff’d sub nom. Smith v. Mayor, D.C., No. 16-7109, 2017 WL 2193615 (D.C. Cir. May 19, 2017).
Page 3 of 5 Plaintiff also mentions “Personal Tort,” in her motion, but this oblique reference does not
satisfy Federal Rule of Civil Procedure Rule 8(a), which requires a “short and plain” recitation of
facts supporting a plaintiff’s claims. See Ashcroft v. Iqbal, 556 U.S. 662, 677-8 (2009) (“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.”) (citation and internal quotation marks omitted). Not only
has Plaintiff not proffered factual allegations, she has not identified specific tort theories.
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
) DARLENE BENNETT, ) ) ) Plaintiff, ) ) v. ) Civil Action No. 19-cv-3575 (TSC) ) JAFNAR GUEYE, Acting Chief ) (Operations & Regulatory) ) ) Defendant. ) )
MEMORANDUM OPINION
Plaintiff Darlene Bennett is an employee of the United States Commerce Department’s,
National Oceanic and Atmospheric Administration (“NOAA”). (Compl. ECF p. 7 ¶ 1.) 1 She brought
this race discrimination action against Jafnar Gueye, one of her NOAA supervisors, alleging
violations of Title VII, 42 U.S.C. § 2000e et seq., and the Whistleblower Protection Act, 5 U.S.C. §
2302(b)(8)-(9). (Compl. ECF pp. 1.) On April 17, 2020, the court dismissed this action, without
prejudice, upon motion by the Defendant. (ECF Nos. 8, 9.) Plaintiff now moves to reopen her case,
(ECF Nos. 10, 11), 2 but for the reasons set forth below, the court will deny the motion.
In his motion to dismiss this action, Gueye argued that Plaintiff could not proceed against him
in his individual capacity under Title VII. (ECF No. 6.) Plaintiff responded by disavowing any
claims against the agency and clarifying that her claims were only against Gueye for actions he took
1 When citing electronic filings throughout this Opinion, the Court cites to the ECF page number, not the page number of the filed document. 2 Plaintiff filed an Amended Motion to Reopen, (ECF No. 11), without seeking leave of court. Nonetheless, the court has considered the arguments raised therein. Page 1 of 5 as her supervisor. (See ECF No. 7, Pls. Resp. pp. 2-4, 15; ECF No. 8, Mem. Op. pp. 2-4.) Plaintiff
explained that she was proceeding separately against the agency in another Title VII lawsuit
challenging the conduct of other supervisors. (See ECF No. 7, Pls. Resp. pp. 2-4, 15.) Having
clarified that Plaintiff sought to proceed against Gueye individually in this case, the court granted his
motion to dismiss because an employee cannot be sued in an individual capacity under Title VII for
actions taken in the course of their employment. (Mem. Op. pp. 2-4); see Gary v. Long, 59 F.3d
1391, 1399 (D.C. Cir. 1995) (citing Busby v. City of Orlando, 931 F.2d 764, 772 (11th Cir. 1991));
Busby, 931 F.2d at 772 (holding that “[i]ndividual capacity suits under Title VII are . . .
inappropriate” because “relief granted under Title VII is against the employer, not individual
employees whose actions constituted a violation of [Title VII]”) (emphasis in original) (citations
omitted); Jarrell v. U.S. Postal Serv., 753 F.2d 1088, 1091 (D.C. Cir. 1985) (noting that “the head of
the agency is the only proper defendant in a Title VII action.”) (citing 42 U.S.C. § 2000e-16(c))
(some citations omitted). 3 The court also dismissed Bennett’s Whistleblower claim because it did not
appear that she had exhausted her administrative remedies. (Mem. Op. p. 4.)
Plaintiff now asks this court to reopen this case because Gueye has been promoted from
acting division chief to permanent chief, and because he is a “supervisor” with the authority to take
tangible employment actions. (ECF No. 10, Pls. Mot., ECF p. 2). But Gueye’s change in status does
not change this court’s analysis. Individual capacity Title VII claims are not actionable, and
Plaintiff’s reliance on Haybarger v. Lawrence County Adult Probation & Parole, 667 F.3d 408, 417
3 Plaintiff confirms in her most recent motion that her other employment action against NOAA involves claims relating to Gueye. (See ECF No. 10, Pls. Mot., ECF p. 2) (“He is also named in another pending lawsuit within this same court regarding case 1:18-cv-02098.”) Because Plaintiff’s other lawsuit is against the agency and she does not appear to assert individual liability claims against Gueye, that suit may proceed, providing she filed within the applicable limitations period and exhausted her administrative remedies. Page 2 of 5 (3d Cir. 2012) is misplaced because that case involved the viability of individual liability claims
under the Family and Medical Leave Act (“FMLA”), 29 U.S.C. § 2601 et seq., not Title VII, and
Plaintiff does not assert facts supporting an FMLA claim, nor did she assert such a claim in her
Complaint. 4
Plaintiff’s status as a “50 year old, African American female,” likewise does not warrant
reopening this case because neither Title VII, nor the Age Discrimination in Employment Act
(“ADEA”), 29 U.S.C. § 621 et seq., allow lawsuits against supervisors in their individual capacities.
See Smith v. Janey, 664 F. Supp. 2d 1, 8 (D.D.C. 2009) (finding that there is no individual liability
under the ADEA), aff’d sub nom. Smith v. Rhee, No. 09-7100, 2010 WL 1633177 (D.C. Cir. Apr. 6,
2010). Moreover, this court previously explained that Plaintiff had not pled facts supporting an age
discrimination claim, (See Mem. Op. p. 4 n.30.), and none of the additional factual allegations in her
motion support claims for age discrimination.
In her current motion, Plaintiff mentions the Notification and Federal Employee
Antidiscrimination and Retaliation Act (“No Fear”) Act, 5 U.S.C. § 2301 et seq., (ECF No. 10, Pls.
Mot., ECF p. 1), but she did not assert claims pursuant to that statute in her Complaint. Even had she
done so, none of “the few courts that have considered claims made under the Act . . . have found that
the Act provides a private cause of action or creates a substantive right . . . .” Beaulieu v. Barr, No.
CV 15-896 (TJK), 2019 WL 5579968, at *6 (D.D.C. Oct. 29, 2019) (citing Williams v. Spencer, 883
F. Supp. 2d 165, 182 (D.D.C. 2012); Glaude v. United States, 248 F. App’x. 175, 177 (Fed. Cir.
2007)).
4 Plaintiffs may not amend a complaint by way of responsive brief. Smith v. Mayor, 191 F. Supp. 3d 114, 116–17 (D.D.C. 2016), aff’d sub nom. Smith v. Mayor, D.C., No. 16-7109, 2017 WL 2193615 (D.C. Cir. May 19, 2017).
Page 3 of 5 Plaintiff also mentions “Personal Tort,” in her motion, but this oblique reference does not
satisfy Federal Rule of Civil Procedure Rule 8(a), which requires a “short and plain” recitation of
facts supporting a plaintiff’s claims. See Ashcroft v. Iqbal, 556 U.S. 662, 677-8 (2009) (“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.”) (citation and internal quotation marks omitted). Not only
has Plaintiff not proffered factual allegations, she has not identified specific tort theories.
Lastly, although not pled in her Complaint, Plaintiff mentions the District of Columbia
Human Rights Act (“DCHRA”), D.C. Code § 2–1401.01 et seq. in her motion. Unlike Title VII,
individual liability claims are permissible under the DCHRA. See Zelaya v. UNICCO Serv. Co., 587
F. Supp. 2d 277, 284–85 (D.D.C. 2008) (“The D.C. Court of Appeals has interpreted the DCHRA
discrimination provisions to apply to a plaintiff’s supervisors in their individual capacities.”) (citing
Wallace v. Skadden, Arps, Slate Meagher & Flom, 715 A.2d 873, 888 (D.C. 1998)) (some citations
omitted).
To the extent Plaintiff seeks to bring individual liability claims against Gueye for race
discrimination under the DCHRA, the court denies her motion to reopen for several reasons. First,
the DCHRA does not apply to employees who work in Maryland, where Plaintiff admits she was
“based” and where the alleged discrimination occurred. (See ECF No. 7, Pls. Resp. p. 18; Bennett v.
Ross, 18-cv-2098-TSC (D.D.C.), ECF No. 38, Pls. Resp., ECF p.11.) And even if the DCHRA did
apply, it is not clear that this court has diversity subject matter jurisdiction over her DCHRA claim,
see 28 U.S.C. § 1332, because Plaintiff is a citizen of Maryland, but she does not indicate Gueye’s
state of citizenship. Moreover, it is uncertain whether this court has personal jurisdiction over Gueye,
see D'Onofrio v. SFX Sports Grp., Inc., 534 F. Supp. 2d 86, 89–94 (D.D.C. 2008), or if venue is
proper. See 28 U.S.C. § 1191(b).
Page 4 of 5 Accordingly, Plaintiff’s motion to reopen this case will be DENIED by separate order. The
Clerk of the Court shall mail a copy of this Memorandum Opinion and the accompanying order to
Plaintiff at her address of record.
Date: May 4, 2020
Tanya S. Chutkan TANYA S. CHUTKAN United States District Judge
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