United States District Court, D. Connecticut
RULING ON DEFENDANT'S MOTION TO COMPEL INITIAL
DISCLOSURES AND REQUEST FOR SANCTIONS [DOC. 181
CHARLES S. HAIGHT, JR. Senior United States District Judge.
Ellsworth Evans, a Public Security Officer, brings this civil
action against his employer, Defendant Quinnipiac University
("Quinnipiac'), alleging that it discriminated
against him on the basis of a physical disability in
violation of the Americans With Disabilities Act
("ADA"), 42U.S.C. §§ 12101, et
seq., and the Family and Medical Leave Act, 29 U.S.C.
§§ 2601, et seq.
has filed a motion [Doc. 18] for an order to compel Plaintiff
to provide discovery responses pursuant to this
District's "Initial Discovery Protocols for
Employment Cases Alleging Adverse Action" (herein the
"Protocols"). Moreover, due to Plaintiffs
counsel's failure to respond to Defendant's
counsel's repeated requests for Plaintiffs overdue
discovery responses, and "absent a showing of
substantial justification, [D]efendant asserts that sanctions
are warranted to reimburse [it] for its reasonable
attorneys' fees incurred in making its Motion and any
related motion practice." Doc. 18, at 1. This Ruling
resolves Defendant's motion.
is a Public Safety Officer employed by Quinnipiac. On October
16, 2015, Plaintiff commenced this action by filing a
complaint against Quinnipiac, alleging violations of the ADA
and FMLA. In his Complaint, he alleges that from January 24,
2014, to June 28, 2014, Quinnipiac failed to "afford
[him] reasonable accomodation [sic]" after he had back
surgery. Doc. 1, TIT) 7, 9. In particular, he alleges that
Quinnipiac "sent [him] home" and "refused to
[allow him] to return to work even after [his] surgeon
released [him] for duty." Id., 1 7. See
also Doc. 16, at 2 (III.A.). According to Plaintiff,
Quinnipiac also "insisted [his] FMLA [benefits] had
expired in an attempt to vacate [him]" or place him on
vacation. Doc. 1, 17. Plaintiff subsequently filed charges
with the Equal Employment Opportunity Commission
("EEOC") and received a "Notice of Right to
Sue" letter on or about July 21, 2015. Id., H
10-11 (& attached "Dismissal and Notice of Rights,
" dated 7/17/2015). Plaintiff alleges that he has the
necessary documentation to show that the alleged
discrimination occurred. Id., \\2.
prayer for relief, Plaintiff seeks "backpay" and
"[m]onetary damages, " which he describes as
"lost wages" and "retirement benefits."
Id., at 4-5. He also demands a trial by jury.
Id., at 5.
October 16, 2015, the same date the Complaint was filed, the
Clerk of the Court filed a "Notice of the Initial
Discovery Protocols" on the case docket. The District of
Connecticut has adopted these Protocols to "apply to all
employment cases that challenge one or more actions alleged
to be adverse, " with limited exceptions. The exceptions
include (1) class actions and (2) cases which allege only the
following: discrimination in hiring; harassment/hostile work
environment; violation of wage and hour laws under the Fair
Labor Standards Act (FLSA); failure to provide reasonable
accommodations under the ADA; violations of the FMLA; and
violations of the Employee Retirement Income Security Act
("ERISA"). Doc. 3, at¶B.1.-6. Moreover,
"[i]f the Initial Discovery Protocols DO NOT apply, the
plaintiffs counsel or any pro se plaintiff must file the
attached statement by no later than seven days after the
filing of this notice" of said protocols on the case
docket. Doc. 3, at 1, & Doc. 3-1 (Attachment). The
attachment asserts, "The Initial Discovery Protocol does
not apply to this case." Doc. 3-1.
Protocols apply to a case, "[t]he plaintiffs Initial
Discovery shall be provided within 30 days after the
defendant has submitted a responsive pleading or motion,
unless the Court rules otherwise." Initial Discovery
Protocols, at 2. The Protocols detail a list of
"[d]ocuments which the Plaintiff must produce to the
Defendant." Id. Such documents include,
inter alia, "[a]ll communications concerning
the factual allegations or claims at issue" in the
lawsuit and "[d]ocuments concerning the terms and
conditions of the employment relations at issue."
Id. The Protocols also list "[information that
Plaintiff must produce to Defendant, " such as the names
of the "persons the plaintiff believes to have a
knowledge of the facts concerning the claims or defenses at
issue" in his lawsuit, the "categories of
damages" he claims, and whether he has applied for
disability benefits and/or social security benefits after the
adverse action" of the employer. Id., at 2-3.
case at bar, on October 19, 2015, the date when the Clerk
filed the Protocols Notice, Plaintiff was pro se. He
made no response to the Protocols (i.e., did not
file the attached notice disclaiming their application).
After ninety (90) days elapsed after the filing of the
Complaint without proof of service upon Defendant, the Court
ordered Plaintiff to show cause why his action should not be
dismissed pursuant to Rule 41(b), Fed.R.Civ.P. See
Doc. 5. Plaintiff responded by requesting a "continuance
in this matter" and advising the Court that he would
seek the services of counsel, specifically Attorney James
Sabatini or "another attorney." Doc. 6 (Letter from
Plaintiff to Hon. Charles S. Haight, Jr., dated 6/7/2016).
Extending leniency to Plaintiff as a pro se
litigant, in the interest of justice, the Court granted the
extension [Doc. 7]. On September 9, 2016, Attorney James F.
Sullivan entered an appearance on behalf of Plaintiff in this
action. He continues to represent Plaintiff to date.
conferring, counsel for the parties filed a joint
"Report of Parties' Planning Meeting" pursuant
to Federal Rule of Civil Procedure 26(f). Doc. 16 (filed
11/10/2106). In that Report, the parties agreed that, with
respect to discovery, "[r]esponses to initial discovery
protocols will be due within 30 days of this Court's
entry of a scheduling order." Id., at 4-5
(V.E.2.). At no place in the Report did Plaintiffs counsel
dispute that the Initial Discovery Protocols applied to this
January 20, 2017, after reviewing the parties'joint Rule
26(f) Report, the Court approved the report, as modified, and
entered a Scheduling Order, setting forth the case deadlines.
In particular, the Court ordered that "[a] 11 discovery,
including the depositions of fact witnesses and expert
witnesses, shall be completed by 6/30/2017." Doc. 17.
days after the Court entered the Scheduling Order, the date
when the parties' discovery responses became due, was
February 21, 2017. The parties thereafter "stipulated to
a joint one-week extension of time to respond, making the
Protocols due February 28, 2017." Doc. 18, at ¶ 8.
Defendant served Plaintiff with its responses on February 28,
2017. Id., ¶ 9. However, Plaintiff failed to
serve his discovery responses on Quinnipiac.
February 28, 2017, Defendant's counsel has emailed
Plaintiffs counsel requesting Plaintiffs responses on four
occasions: March 16, April 3, April 17, and May 1 of 2017.
See Doc. 18-1 (Ex. A) (series of emails sent from
Attorney Caroline B. Park to Attorney James Sullivan). In
particular, on April 17, 2017, Quinnipiac's counsel,
Attorney Park, wrote to Plaintiffs counsel, Attorney
We have still not received your initial disclosures or a
response to the emails below requesting that you let us know
when we can expect to receive them. Please be advised that we
plan to file a motion to compel if we do not receive your
responses by next Friday, April 28.
Doc. 18-1 (Ex. A), at 2.
on May 1, 2017, Park emailed Sullivan, stating: "We are
in the process of drafting our motion to compel, which will
include a request for sanctions." Id.
Therefore, if Sullivan planned to produce Plaintiffs
"long overdue initial disclosures, and obviat[e] the
need for a motion to compel, " he must notify Park
"as soon as possible." Id. As on the
occasions of the three previous emails, Sullivan failed to
4, 2017, Defendant filed the present motion to compel
Plaintiffs initial disclosures and for sanctions. Doc. 18. To
date, Plaintiff has not responded to Defendant's motion
to compel, and the 21-day period to respond to that motion
expired on May 25, 2017. See D.Conn. L. Civ. R.
7(a)2 ("Unless otherwise ordered by the Court, all
opposition memoranda shall be filed within twenty-one (21)
days of the filing of the motion . . . ."). Plaintiff
has failed to object to the motion or contest the facts as
presented by Defendant's counsel.