UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
JABARI BRUTON-BARRETT, )
)
Plaintiff, )
v. ) Civil Action No. 21-1860 (RBW)
)
)
GILEAD SCIENCES, INC.,
)
Defendant. )
)
MEMORANDUM OPINION
The plaintiff, Jabari Bruton-Barrett, brings this civil action against the defendant, Gilead
Sciences, Inc., asserting claims of (1) discrimination based upon his race and sexual orientation,
in violation of the District of Columbia Human Rights Act, D.C. Code § 2-1402.11 (“DCHRA”)
(the “DCHRA claims”); (2) discrimination based upon his race, in violation of Title VII of the
Civil Rights Act, 42 U.S.C. § 2000e-2 (“Title VII”) (the “Title VII claim”); and
(3) discrimination based upon his race, in violation of 42 U.S.C. § 1981. See Complaint for
Damages and Equitable Relief (“Compl.”) ¶¶ 41, 52, 64, ECF No. 1. Currently pending before
the Court is the defendant’s partial motion to dismiss the plaintiff’s DCHRA claims and Title VII
claim. See Defendant Gilead Sciences, Inc.’s Motion for Partial Dismissal (“Def.’s Mot.”) at 1,
ECF No. 6. Upon careful consideration of the parties’ submissions,1 the Court concludes for the
following reasons that it must grant in part and deny without prejudice in part the defendant’s
motion.
1
In addition to the filings already identified, the Court considered the following submissions in rendering its
decision: (1) the Memorandum of Law in Support of Defendant Gilead Sciences, Inc.’s Motion for Partial Dismissal
(“Def.’s Mem.”), ECF No. 6-1; (2) the Plaintiff’s Opposition to Defendant’s Motion for Partial Dismissal (“Pl.’s
Opp’n”), ECF No. 12; and (3) the Reply Brief in Support of Defendant Gilead Sciences, Inc.’s Motion for Partial
Dismissal (“Def.’s Reply”), ECF No. 13.
I. BACKGROUND
A. Factual Background
The following allegations are taken from the plaintiff’s Complaint, unless otherwise
specified. The “plaintiff is African American[,] and he is openly gay.” Compl. ¶ 6. The
plaintiff has been employed by the defendant, “a biopharmaceutical company committed to
advancing innovative medicines to prevent and treat life-threatening diseases,” Def.’s Mem. at 3,
since December 13, 2013, see Compl. ¶ 10, “as a Community Liaison in the [defendant’s]
Commercial Division[,]” id. ¶ 2. “In or around June 2018, [the p]laintiff expressed interest in
applying for a newly created position with [the d]efendant as Director of Corporate
Contributions that had not yet been posted for applications.” Id. ¶ 11. “In or around January
2019, [the p]laintiff learned that selecting official Patrick McGovern[,]” who is white, had
“selected another individual[,]” who is Asian and heterosexual, “for the position without posting
the position for others to apply.” Id. ¶ 13.
On January 29, 2019, the plaintiff “sent an email to [the d]efendant’s Human Resources
Group, complaining that he was not selected for the position because of his race[.]” Id. ¶ 14.
Subsequently, on March 25, 2019, the “[d]efendant concluded an internal investigation into [ ]
McGovern’s [alleged] discriminatory practices.” Id. ¶ 16. On March 28, 2019, the plaintiff
“learned from his supervisor that [ ] McGovern stated that he believed [the p]laintiff was ‘too
gay’ and an ‘embarrassment[,]’[] and that he wanted a ‘non-black[,] non-gay’ person for the role
in question[.]” Id. ¶ 17. The plaintiff states that “[t]his was the first time [he] learned that the
real reason he was not selected for the promotion was due to his sexual preference and his race,
and not in any way related to his qualifications.” Id. ¶ 18. Thus, the plaintiff alleges that, despite
being “highly qualified for the position,” he “was not provided the opportunity to apply for, or be
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considered for[,] the promotion[,]” id. ¶ 20, and was “unfairly denied the promotion due to his
race and sexual orientation[,]” id. ¶ 21. “As a result of this non-selection,” the plaintiff claims
that “[the d]efendant discriminated against [him] with respect to his compensation, terms,
conditions, and privileges of employment.” Id. ¶ 22.
On February 20, 2020, the plaintiff “submitted a [c]harge of [d]iscrimination with the
[District of Columbia] Office of Human Rights [(‘DCOHR’),] alleging race and sexual
preference discrimination.” Id. ¶ 26. The DCOHR “interviewed [the p]laintiff to determine the
relevant facts and dates for his [c]harge of discrimination” and “[a] formal [c]harge was then
drafted based on the interview.” Id. ¶ 27. On August 5, 2020, the DCOHR “issued a notice,
stating [that] the parties must attend mandatory mediation on September 24, 2020.” Id. ¶ 28.
However, on September 4, 2020, the defendant “filed a motion to dismiss the [c]harge of
[d]iscrimination on the basis that the [c]harge was untimely.” Id. ¶ 29.
B. Procedural History
On July 12, 2021, the plaintiff filed his Complaint, alleging that his “non-selection” for
promotion to the Director of Corporate Contributions position in January 2019 was
discriminatory under (1) the DCHRA, (2) Title VII, and (3) 42 U.S.C. § 1981. See id. ¶¶ 22–23,
41, 52, 64. On September 30, 2021, the defendant filed its partial motion to dismiss the
plaintiff’s DCHRA claims and Title VII claim pursuant to Federal Rule of Civil Procedure
12(b)(6). See Def.’s Mot. at 1. The plaintiff then filed his opposition on December 20, 2021, see
Pl.’s Opp’n at 1, and the defendant filed its reply on January 10, 2022, see Def.’s Reply at 1.
II. STANDARD OF REVIEW
A motion to dismiss under Rule 12(b)(6) tests whether a complaint has properly “state[d]
a claim upon which relief can be granted[.]” Fed. R. Civ. P. 12(b)(6). “To survive a motion to
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dismiss [under Rule 12(b)(6)], 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 facially
plausible “when the plaintiff pleads factual content that allows the court to draw [a] reasonable
inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S.
at 556).
In evaluating a motion to dismiss under Rule 12(b)(6), “the Court must construe the
complaint in favor of the plaintiff, who must be granted the benefit of all inferences that can be
derived from the facts alleged.” Hettinga v. United States, 677 F.3d 471, 476 (D.C. Cir. 2012)
(internal quotation marks omitted). While the Court must “assume [the] veracity” of any
“well-pleaded factual allegations” in a complaint, conclusory allegations “are not entitled to the
assumption of truth.” Iqbal, 556 U.S. at 679. Thus, “[t]hreadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do not suffice.” Id. at 678 (citing
Twombly, 550 U.S. at 555). Also, the Court need not “accept legal conclusions cast as factual
allegations[,]” or “inferences drawn by [the] plaintiff if those inferences are not supported by the
facts set out in the complaint[.]” Hettinga, 677 F.3d at 476. The Court “may consider only the
facts alleged in the complaint, any documents either attached to or incorporated in the
complaint[,] and matters of which [the Court] may take judicial notice.” Equal Emp.
Opportunity Comm’n v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C. Cir. 1997).
“Finally, a court in this District, at least when the plaintiff is represented by counsel, may
consider as conceded any arguments raised by a defendant’s Rule 12(b)(6) motion that are not
addressed in a plaintiff’s opposition.” Toms v. Off. of the Architect of the Capitol, 650 F. Supp.
2d 11, 18 (D.D.C. 2009) (Walton, J.); see also Tnaib v. Document Tech., Inc., 450 F. Supp. 2d
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87, 91 (D.D.C. 2006) (“When a plaintiff files a response to a motion to dismiss but fails to
address certain arguments made by the defendant, the court may treat those arguments as
conceded.” (quoting Fox v. Am. Airlines, Inc., No. 02-2069, 2003 WL 21854800, at *2 (D.D.C.
Aug. 5, 2003), aff’d, 389 F.3d 1291 (D.C. Cir. 2004))); Stephenson v. Cox, 223 F. Supp. 2d 119,
122 (D.D.C. 2002) (dismissing various counts of the complaint as conceded, noting that “[t]he
court’s role is not to act as an advocate for the plaintiff and construct legal arguments on his
behalf in order to counter those in the motion to dismiss”).
III. ANALYSIS
The defendant argues that the plaintiff’s DCHRA and Title VII claims should be
dismissed “[p]ursuant to Federal Rule of Civil Procedure 12(b)(6)” “for failure to state a claim
upon which relief can be granted.” Def.’s Mot. at 1. In response, the plaintiff contends that his
“claim of sexual orientation discrimination pursuant to the [DCHRA]” should survive because it
“was timely made[,]” Pl.’s Opp’n at 1, but the plaintiff does not respond to the defendant’s
arguments regarding his race discrimination claim under the DCHRA or his Title VII claim, see
generally id. The Court will first address the defendant’s challenge to the plaintiff’s DCHRA
claims, before proceeding to the defendant’s challenge to the plaintiff’s Title VII claim.
A. The Plaintiff’s DCHRA Claims
The defendant asserts that the “[p]laintiff’s [DCHRA] claims for race and
sexual-orientation discrimination . . . fail as untimely under the governing statute of limitations
because [the p]laintiff failed to file his administrative complaint with [the] DCOHR within one
year of his discovery of the challenged act[,]” Def.’s Mem. at 6, which the defendant alleges was
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the plaintiff’s “non-selection for the Director of Corporate Contributions position[,]” id. at 7.2 In
response, the plaintiff argues that his “claim of sexual orientation discrimination pursuant to
the [DCHRA] was timely made[,]” Pl.’s Opp’n at 1, because, “[a]lthough [he] was vocal in his
opinion that [the d]efendant’s selecting officials were motivated by racist animus [on January 29,
2019], he did not suspect that the selection decision was also based on his sexual preference until
March 28, 2019[,]” id. at 5. Before the Court may consider the defendant’s argument for
dismissal of the plaintiff’s DCHRA claims as time-barred, the Court must address its authority to
exercise jurisdiction over these claims. See NetworkIP, LLC v. Fed. Commc’ns Comm’n, 548
F.3d 116, 120 (D.C. Cir. 2008) (“It is axiomatic that subject[-]matter jurisdiction may not be
waived, and that courts may raise the issue sua sponte.” (internal quotation marks omitted)). For
the following reasons, the Court concludes that, “at this time[, it] cannot determine whether it has
subject[-]matter jurisdiction over [the plaintiff’s] DCHRA claim[s].” Peart v. Latham &
Watkins, 985 F. Supp. 2d 72, 88 (D.D.C. 2013).
The DCHRA “requires an election of remedies.” Jones v. District of Columbia,
41 F. Supp. 3d 74, 79 (D.D.C. 2014). Under the DCHRA, “[a]ny person claiming to be
aggrieved by an unlawful discriminatory practice shall have a cause of action in any court of
competent jurisdiction for damages and such other remedies as may be appropriate, unless such
person has filed a complaint” with the DCOHR. D.C. Code § 2-1403.16(a). “Individuals
alleging violations of the DCHRA [ ] thus . . . may file a complaint either in court or with [the
DC]OHR[,]” but “they cannot do both[,]” Elzeneiny v. District of Columbia, 125 F. Supp. 3d 18,
2
In his opposition, the plaintiff contests the defendant’s characterization of the discriminatory act, arguing that “the
injury in this case was not simply [the p]laintiff’s non-selection, but rather [the p]laintiff’s disparate treatment with
regards to the non-competitive selection decision on the basis of his sexual preference, as well as the ongoing
disparate impact of . . . McGovern’s policy of not promoting gay black men.” Pl.’s Opp’n at 5 (emphasis in
original).
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32 (D.D.C. 2015), because “the jurisdiction of the court and [the DC]OHR are mutually
exclusive in the first instance[,]” Carter v. District of Columbia, 980 A.2d 1217, 1223
(D.C. 2009) (quoting Brown v. Capitol Hill Club, 425 A.2d 1309, 1311 (D.C. 1981)). Therefore,
“once a plaintiff files a complaint with [the DC]OHR, [he or] she may only file an independent
suit in two narrow instances: [(1)] if [the DC]OHR dismissed the case on administrative
convenience [grounds,] or [(2)] if the individual withdrew [his or] her [DC]OHR complaint
before a probable-cause determination was rendered.” Elzeneiny, 125 F. Supp. 3d at 33; see also
D.C. Code § 2-1403.16(a) (stating that “where the [DCOHR] has dismissed [a] complaint on the
grounds of administrative convenience, or where the complainant has withdrawn a complaint,
such person shall maintain all rights to bring suit as if no complaint has been filed”).
Here, the plaintiff represents that he “submitted a [c]harge of [d]iscrimination with the
[DCOHR.]” Compl. ¶ 26. Accordingly, the Court may only exercise jurisdiction over this case
if either “(1) [the DC]OHR dismiss[ed] the complaint for ‘administrative convenience’ or (2) the
[plaintiff] withdr[ew] [his] [DC]OHR complaint before [the DC]OHR [ ] decided it.” Carter,
980 A.2d at 1223 (citing D.C. Code § 2-1403.16(a)). However, the plaintiff’s Complaint only
provides two updates as to the status of his DCOHR discrimination charge: (1) on August 5,
2020, the DCOHR “issued a notice, stating that the parties must attend mandatory mediation on
September 24, 2020[,]” id. ¶ 28; and (2) on September 4, 2020, “[the d]efendant filed a motion to
dismiss the [c]harge of [d]iscrimination on the basis that the [c]harge was untimely[,]” id. ¶ 29.
The Complaint provides no further information about the status of the plaintiff’s case before the
DCOHR. See generally Compl.
Therefore, the plaintiff’s Complaint lacks any allegations that would enable the Court to
conclude that “[the DC]OHR dismissed the case on administrative convenience [grounds]” or the
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plaintiff “withdrew [his DC]OHR complaint before a probable-cause determination was
rendered.” Elzeneiny, 125 F. Supp. 3d at 33; see generally Compl. Accordingly, to determine
whether it can exercise jurisdiction over the plaintiff’s DCHRA claims, the Court will require the
submission of supplemental briefing regarding the plaintiff’s election of remedies and, in the
interim, deny the defendant’s motion for partial dismissal without prejudice as to the DCHRA
claims in Count I. See Peart, 985 F. Supp. 2d at 90 n.3 (declining to reach the defendant’s
argument for dismissal of a DCHRA claim because “[d]etermining whether [the plaintiff’s]
DCHRA claim is untimely would constitute an exercise of the Court’s subject[-]matter
jurisdiction” and “the Court [could not] determine at th[at] time whether it ha[d] jurisdiction over
[the] DCHRA claim”).
B. The Plaintiff’s Title VII Claim
The Court now turns to the defendant’s challenge to the plaintiff’s Title VII claim. The
defendant contends that the “[p]laintiff’s Title VII claim in Count II is [ ] deficient because [the
p]laintiff does not allege that he exhausted his administrative remedies with the Equal
Employment Opportunity Commission (‘EEOC’)[.]” Def.’s Mem. at 3. Specifically, the
defendant argues that the plaintiff does not allege “that he filed any charge with the EEOC (or
that his DCOHR charge was cross-filed with the EEOC)[,]” “that he received a right-to-sue
notice from the EEOC before filing this action[,]” or “even [ ] the sort of conclusory
statement . . . that he ‘exhausted his administrative remedies.’” Id. at 8. The plaintiff has not
responded to the defendant’s argument, see generally Pl.’s Opp’n, and for the following reasons,
the Court concludes that the plaintiff has conceded this argument.
“Prior to filing a Title VII suit, a plaintiff must exhaust his [or her] administrative
remedies by filing an EEOC charge outlining his [or her] allegations.” Duberry v. Inter-Con Sec.
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Sys., Inc., 898 F. Supp. 2d 294, 298 (D.D.C. 2012) (citing 42 U.S.C. § 2000e-5(e)). Since “Title
VII’s exhaustion requirements are not jurisdictional[,]” Artis v. Bernake, 630 F.3d 1031,
1034 n.4 (D.C. Cir. 2011), “a 12(b)(6) motion . . . is the appropriate vehicle to challenge an
alleged failure to exhaust administrative remedies under Title VII[,]” Mahoney v. Donovan,
824 F. Supp. 2d 49, 58 (D.D.C. 2011) (internal quotation marks omitted); see also Hicklin v.
McDonald, 110 F. Supp. 3d 16, 18 (D.D.C. 2015) (“A motion to dismiss for failure to exhaust
administrative remedies is properly addressed under [ ] Rule . . . 12(b)(6).”) (citing Marcelus v.
Corr. Corp. of Am./Corr. Treatment Facility, 540 F. Supp. 2d 231, 234–35 (D.D.C. 2008)).
However, “failure to exhaust is an affirmative defense that must be pleaded and
established by the defendant, and the plaintiff therefore need not plead exhaustion in the
complaint.” Briscoe v. Costco Wholesale Corp., 61 F. Supp. 3d 78, 85 (D.D.C. 2014). Thus,
“the defendant ‘bears the burden of proving by a preponderance of the evidence that the plaintiff
has failed to exhaust administrative remedies.’” Id. at 84–85 (quoting Ndondji v. InterPark Inc.,
768 F. Supp. 2d 263, 276 (D.D.C. 2011) (citing Bowden v. United States, 106 F.3d 433, 437
(D.C. Cir. 1997)). “This burden requires more than ‘[m]eager, conclusory allegations that the
plaintiff failed to exhaust his [or her] administrative remedies.’” Id. at 85 (quoting Dobbs v.
Roche, 329 F. Supp. 2d 33, 38 (D.D.C. 2004)). “If the defendant meets its burden, the burden
shifts to the plaintiff to demonstrate that dismissal is not warranted.” Id. “When a plaintiff fails
to meet his [or her] burden by showing that he [or she] exhausted the administrative remedies,
dismissal is appropriate.” Id.
Here, although the plaintiff was not required to plead exhaustion in his Complaint, see
id., the plaintiff’s opposition “does not mention [the p]laintiff’s Title VII claim,” Def.’s Reply at
3, and does not respond to the argument that “the claim is subject to dismissal based on [the
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p]laintiff’s failure to exhaust the administrative prerequisites with the EEOC[,]” id. See
generally Pl.’s Opp’n. Accordingly, without reaching the merits of the defendant’s affirmative
defense, the Court concludes that the plaintiff has “conceded [the] argument[] raised by [the]
defendant’s Rule 12(b)(6) motion” as to the exhaustion of administrative remedies because “the
plaintiff is represented by counsel” and the defendant’s arguments “are not addressed in [the]
plaintiff’s opposition.” Toms, 650 F. Supp. 2d at 18; see also Tnaib, 450 F. Supp. 2d at 91
(“When a plaintiff files a response to a motion to dismiss but fails to address certain arguments
made by the defendant, the court may treat those arguments as conceded.” (quoting Fox,
2003 WL 21854800, at *2)). Thus, the Court will grant the defendant’s motion with respect to
the Title VII claim in Count II of the plaintiff’s Complaint.
IV. CONCLUSION
For the foregoing reasons, the Court concludes that it must grant in part and deny without
prejudice in part the defendant’s motion.
SO ORDERED this 14th day of November, 2022.3
REGGIE B. WALTON
United States District Judge
3
The Court will contemporaneously issue an Order consistent with this Memorandum Opinion.
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