                            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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