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,

(“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

. 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[,]”

. “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.”

. “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.”

.

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[.]”

.

Subsequently, on March 25, 2019, the “[d]efendant concluded an internal investigation into [ ]

McGovern’s [alleged] discriminatory practices.”

. 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[.]”

. 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.”

. Thus, the plaintiff alleges that, despite

being “highly qualified for the position,” he “was not provided the opportunity to apply for, or be

2 considered for[,] the promotion[,]”

, and was “unfairly denied the promotion due to his

race and sexual orientation[,]”

. “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.”

.

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.”

. 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.”

. On August 5, 2020, the DCOHR “issued a notice,

stating [that] the parties must attend mandatory mediation on September 24, 2020.”

.

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.”

.

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)

. See

¶¶ 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

3 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,

(2009) (quoting Bell Atl. Corp. v. Twombly,

(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.”

(citing Twombly,

).

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,

(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,

. Thus, “[t]hreadbare recitals of the elements of a

cause of action, supported by mere conclusory statements, do not suffice.”

at 678 (citing

Twombly,

). 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,

. 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.,

(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,

(D.D.C. 2009) (Walton, J.); see also Tnaib v. Document Tech., Inc.,

(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,

, at *2 (D.D.C.

Aug. 5, 2003), aff’d,

(D.C. Cir. 2004))); Stephenson v. Cox,

(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

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

5 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,

(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,

(D.D.C. 2013).

The DCHRA “requires an election of remedies.” Jones v. District of Columbia,

(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.

(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,

,

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).

6 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,

(D.C. 2009) (quoting Brown v. Capitol Hill Club,

(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,

; see also

(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,

(citing

(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[,]”

; 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[,]”

.

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

7 plaintiff “withdrew [his DC]OHR complaint before a probable-cause determination was

rendered.” Elzeneiny,

; 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,

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.

8 Sys., Inc.,

(D.D.C. 2012) (citing 42 U.S.C. § 2000e-5(e)). Since “Title

VII’s exhaustion requirements are not jurisdictional[,]” Artis v. Bernake,

,

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,

(D.D.C. 2011) (internal quotation marks omitted); see also Hicklin v.

McDonald,

(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,

, 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.,

(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.’”

at 84–85 (quoting Ndondji v. InterPark Inc.,

(D.D.C. 2011) (citing Bowden v. United States,

(D.C. Cir. 1997)). “This burden requires more than ‘[m]eager, conclusory allegations that the

plaintiff failed to exhaust his [or her] administrative remedies.’”

at 85 (quoting Dobbs v.

Roche,

(D.D.C. 2004)). “If the defendant meets its burden, the burden

shifts to the plaintiff to demonstrate that dismissal is not warranted.”

“When a plaintiff fails

to meet his [or her] burden by showing that he [or she] exhausted the administrative remedies,

dismissal is appropriate.”

Here, although the plaintiff was not required to plead exhaustion in his Complaint, see

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

9 p]laintiff’s failure to exhaust the administrative prerequisites with the EEOC[,]”

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,

; see also Tnaib,

(“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,

, 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.

10