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Evarts v. Quinnipiac University

United States District Court, D. Connecticut

June 21, 2017



          CHARLES S. HAIGHT, JR. Senior United States District Judge.


         Plaintiff 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.

         Defendant 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.


         Plaintiff 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."[1] 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.

         In his 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.

         On 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.[2] 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.

         If the 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."[3] 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.[4] Id., at 2-3.

         In the 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.

         After 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 action.

         On 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.

         Thirty days after the Court entered the Scheduling Order, the date when the parties' discovery responses became due, was February 21, 2017.[5] 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.

         Since 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 Sullivan:

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.

         Finally, 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 reply.

         On May 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.

         III. ...

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