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Protopapas v. Emcor Government Services, Inc.

United States District Court, District of Columbia

May 1, 2017



          Beryl A. Howell Chief Judge

         The plaintiff, George Protopapas, initiated this employment discrimination suit against his former employer, EMCOR Government Services, alleging discrimination based on his national origin, race, age, and disability, in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), the Age Discrimination in Employment Act (“ADEA”), the Americans with Disabilities Act (“ADA”), and the District of Columbia Human Rights Act (“DCHRA”). Compl. ¶¶ 4, 20, 31-33, ECF No. 1.[1] Over the course of this litigation, the plaintiff, who is currently represented by attorney Torrance Colvin, has failed to respond to six Court orders and three pending motions filed by the defendant, as well as, most recently, failed to appear for a scheduled hearing to address some of these failures. Since that hearing, the plaintiff has had no contact with the Court.[2]

         Pending before the Court are the defendant's motions for summary judgment, Def.'s Mot. Summ. J. (“Def.'s MSJ”), ECF No. 30, and to compel discovery and for sanctions, Def.'s Mot. Compel and for Sanctions (“Def.'s Sanctions Mot.”), ECF No. 26. As discussed in more detail below, the defendant's motion for summary judgment is granted because the plaintiff failed to exhaust administrative exhaustion for his federal claims and satisfy the relevant statute of limitations for his claim under the DCHRA. The defendant's motion to compel discovery is denied as moot and the request for sanctions is also denied.

         I. BACKGROUND

         A. The Underlying Allegations

         This case was initially brought pro se and, while difficult to understand, the complaint alleges that the plaintiff, a United States citizen born in Greece, “has retained a distinct manner of speaking which may seem unusual to many persons in the DC area.” Compl. ¶¶ 1, 6. In “[l]ate 2012 or Jan. 2013, ” the plaintiff spoke with Robert Smith, whom the plaintiff identifies as his supervisor, and Smith's wife at a happy hour and responded to Smith's wife's question “where he was from.” Id. at ¶ 21. “[W]hen he said Greece[, ] she asked more questions about Plaintiff and she was excited and she had a Greek boy-friend and that she was the head manager of the Four Seasons Hotel in Georgetown, DC.” Id. Sometime after that conversation, Smith told another employee that the plaintiff “was trying to pick [his wife] up, ” and “[a]fter that event [] Smith attempted to find a reason to discharge Plaintiff from employment.” Id. at ¶ 22. The complaint alleges that from then on, “[f]or no stated reason, [Smith] began to write up the Plaintiff[], ” which involved creating “a record of some alleged some [sic] violation of the rules” governing employee conduct. Id. at ¶ 9. These write-ups for rule violations culminated in the termination of the plaintiff's employment in August 2013, after the plaintiff improperly “reset the panel [o]f [a] fire alarm panel” that had been triggered, “so that everyone could go back to regular work.” Id. at ¶ 29. After his termination, the plaintiff filed a grievance with his union, which declined to “prosecute his rights under the Collective Bargaining Agreement.” Id. The complaint alleges that, at some unspecified time, the plaintiff “filed a charge with the Equal Employment Commission [sic] EEOC No 570-2013 01943.” Id. at ¶ 18.

         B. The Plaintiffs' First Attorney

         In August 2015, over two years after he was terminated from his employment, the plaintiff filed this suit against EMCOR Government Services and “EMCOR Group, Inc.” Compl. at ¶ 1. On January 4, 2016, the Court ordered the plaintiffs to show cause, by January 20, 2016, why this action should not be dismissed for failure to prosecute, as the defendants had not yet been served, Order, dated January 4, 2016, ECF No. 5, but the plaintiff failed to respond. In early March 2016, plaintiff's counsel entered an appearance, Notice of Appearance, ECF No. 8, and filed an affidavit indicating that he had attempted to effect service on the defendants by emailing their attorney, who “did not agree to accept service, ” Affidavit of David Rose at 1, ECF No. 9. Soon after, the Court again ordered the plaintiffs to show cause why the action should not be dismissed for failure to prosecute, Order, dated April 5, 2016, ECF No. 11, and, the same day, the defendant moved to dismiss on the grounds of the plaintiffs' “failure to comply with the service requirements of Rule 4” and failure to “either [] serve properly a summons and Complaint” or “follow the proper procedure to obtain a waiver of service of a summons, ” Defs.' Mem. Supp. First Mot. Dismiss at 2, ECF No. 12-1. More than a month later, plaintiff's counsel withdrew for health reasons, and the Court directed, inter alia, that the plaintiff notify the Court by May 20, 2016, whether another lawyer had been obtained. Minute Order, dated May, 12, 2016.

         C. The Plaintiffs' Second Attorney

         On June 1, 2016, plaintiff's new attorney, Torrance Colvin, entered an appearance and properly effected service on the current defendant. Pls.' Affidavit of Service, ECF No. 20. Consequently, in response to the Court's order to show cause, Minute Order, dated June 28, 2016, the defendant agreed that the first motion to dismiss as to the current defendant, EMCOR Government Services, was “moot, ” but argued that the motion was not moot as to EMCOR Group Inc. because this entity “was not the employer of the plaintiffs, ” and in any event, the Court lacked “personal jurisdiction over EMCOR [Group, Inc.] because it has not and does not do business in the District of Columbia.” Defs.' Resp. Ct. Order dated June 28, 2016, at 1, ECF No. 22. After the time for the plaintiff to respond had lapsed, the Court issued an order directing the plaintiff to show cause why the defendants' first Motion to Dismiss should not be granted as to EMCOR Group, Inc., essentially providing the plaintiff with additional time to respond. Minute Order, dated July 12, 2016. Nevertheless, no response from the plaintiff was forthcoming. Consequently, the Court granted as conceded the first motion to dismiss as to EMCOR Group, Inc. Minute Order, dated August 8, 2016. In accordance with the Court's order that the remaining parties submit a joint meet and confer report, Minute Order, dated August 28, 2016, the parties submitted a Joint Meet and Confer Statement, ECF No. 25, with a proposed scheduling order, which was generally adopted by the Court, see Scheduling Order, dated September 14, 2016.

         D. The Plaintiff's Failures to Respond to Discovery Requests

         The plaintiff failed to respond to the defendant's formal request for production of documents as well as multiple informal attempts to obtain discovery, prompting the defendant to move to compel responses to the defendant's request for (1) “all documents related to the U.S. Equal Employment Opportunity Commission [] charge identified in Paragraph 18 of the complaint, including a copy of the charge”; (2) “any Dismissal and Notice of Suit Rights issued to [the plaintiff] by the EEOC regarding the charge”; and (3) “all documents related to any charge or complaint you filed with the District of Columbia Office of Human Rights (DCOHR) concerning the termination of your employment . . . .” Def.'s Mem. Supp. Mot. Summ. J. (“Def.'s MSJ Mem.”) at 4-5, ECF No. 30. After the plaintiff failed to file a timely response to the motion to compel, the Court ordered the plaintiff to show cause, by January 3, 2017, why the motion should not be granted. Minute Order, dated December 23, 2016.

         On January 4, 2017, the plaintiff's attorney responded, informing the Court that he had, since October 2016, been dealing with the “illness and subsequent death” of a close family member, and that “he believed that the responses had been mailed out.” Pl.'s Resp. to Ct.'s Order Show Cause dated December 23, 2016 at 1-2, ECF No. 28. Plaintiff's counsel acknowledged that he had not “follow[ed] up with Defendant's counsel regarding receipt of the documents, ” given the late hour of his response, but apologized and stated that his “failure to respond was neither intentional nor consistent with [his] typical handling of his cases.” Id. at 2. This was the plaintiff and his counsel's last contact with the Court.

         That same day, the plaintiff's attorney “produced 106 pages of documents allegedly responsive to” the defendant's request, 87 pages of which “related solely to [the plaintiff's] state and federal tax filings.” Def.'s MSJ Mem. at 5. The documents produced were “in an undifferentiated single pile, without any written response indicating which documents were being produced in response to which request and whether any of the requests were objected to.” Id. 11-12. The plaintiff's production included only one page responsive to the request for documents related to the EEOC charge, but no documents responsive to the requests for the right to sue letter or the DCHRA charge. Id. at 5-6. The single responsive document is one page, entitled “Charge of Discrimination, ” and it appears to be a completed form for filing a complaint with the EEOC. Id. at 5 (citing Def.'s MSJ Mem. Ex. B (“Charge of Discrimination”), ECF No. 30-2). The document, however, does not ...

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