United States District Court, District of Columbia
OPINION AND ORDER
CHRISTOPHER R. COOPER, United States District Judge
Michael Shearill was fired from his position as a front-desk
clerk with Peter N.G. Schwartz Management Company
(“PNGS”) after he got into an argument with a
pizza courier during a late-night delivery to the
company's office building. Shearill responded by suing
the company under Title VII of the Civil Rights Act
(“Title VII”), and the Age Discrimination in
Employment Act (“ADEA”), alleging that he was
unlawfully terminated on the basis of both race and age. PNGS
has moved for summary judgment. Because Shearill has failed
to oppose the summary judgment motion despite several
deadline extensions, the Court will treat it as conceded
under Local Rule 7(b) and dismiss his complaint. In addition,
because Shearill has failed to allege a prima facie case of
discrimination under both Title VII and the ADEA, the Court
will grant judgment in favor of PNGS and dismiss the suit in
complaint alleges the following facts. Michael Shearill, an
African-American male, worked for PNGS as a front desk clerk
for 26 years. Compl. ¶ 6. Late one night in September
2014, a pizza delivery man entered the PNGS building while
Shearill was on duty at the front desk. Id. ¶
11. Shearill contends that the delivery man deliberately
provoked a verbal altercation with him. Id. ¶
13. During the spat, Shearill referred to the man, who is
also African American, as a “nigger.”
Id. ¶ 16. PNGS fired Shearill later that month,
citing his use of the racial slur during the altercation.
Id. ¶ 18. Shearill asserts that other, younger
African-American employees at PNGS “constantly”
used the racial slur and were not terminated. Id.
¶ 19. He further claims that in 2007, PNGS took no
action after a white tenant in the building directed the same
slur toward him. Id. ¶ 21.
filed suit in this Court in April 2016, alleging that PNGS
terminated him on the basis of his race and age. PNGS chose
to answer the complaint. Following a period of discovery, the
Court adopted a summary judgment briefing schedule that
ordered PNGS to move for summary judgment by June 5, 2017 and
ordered Shearill to file any opposition by July 5, 2017.
See Minute Order, May 22, 2017. PNGS filed its
motion for summary judgment on June I. Shearill, who is
represented by counsel, failed to oppose the motion by the
Court-ordered deadline. Nine days later, on July 14, the
Court issued a minute order directing Mr. Shearill to show
cause, by July 21, why summary judgment should not be entered
for PNGS. He missed this deadline as well. On July 24,
Shearill's counsel filed a belated extension request,
indicating that he would respond to the Court's show
cause order and file an opposition brief the following day.
See Pl.'s Mot. Extension, July 24,
2017. Two days later, counsel requested another
extension, to August 3, 2017. After that deadline came and
went, the Court issued a further minute order on August 8,
2017 advising Plaintiff that if no opposition was received by
August II, 2017, the Court would treat Defendant's
summary judgment motion as conceded pursuant to Local Civil
Rule 7(b). As of the issuance of this Opinion and Order, Mr.
Shearill still has not responded to the Court's show
cause order or opposed PNGS's motion for summary
judgment. Nor has he sought leave to amend his complaint.
the Court is sympathetic to counsel's personal hardships,
it is also mindful of the need to efficiently manage its
docket and of the costs borne by the Defendant in defending
this lawsuit. Having given Plaintiff more than ample
opportunity to file an opposition, the Court will,
reluctantly, treat the motion as conceded. See Local
Civ. R. 7(b) (“If [an opposition] memorandum is not
filed within the prescribed time, the Court may treat the
motion as conceded.”).
the appropriate sanction for violating Local Rule 7(b) would
be dismissal of the complaint without prejudice. Cohen v.
Bd. of Trs. of Univ. of D.C., 819 F.3d 476, 480 (D.C.
Cir. 2016). By enabling the plaintiff to file an amended
complaint, this approach hews to the presumption in federal
litigation that case-dispositive motions be decided on the
merits. Id. at 481-82; see also
Fed.R.Civ.P. 56 advisory committee's note to 2010
amendment (“[S]ummary judgment cannot be granted by
default even if there is a complete failure to respond to the
however, the record is sufficient for the Court to determine
that PNGS is entitled not only to the dismissal of
Shearill's complaint under Local Rule 7(b), but also to a
judgment on the merits. PNGS chose to answer the complaint
and has now moved for summary judgment under Federal Rule of
Civil Procedure 56. In doing so, however, it has not relied
on any material apart from the complaint's allegations.
The Court will therefore treat the motion as one for judgment
on the pleadings under Rule 12(c) and decide it without
regard to what discovery materials or other evidence Mr.
Shearill may have included in his opposition. Proceeding to
that analysis, the Court finds that PNGS is entitled to
judgment because the complaint, which Shearill has never
sought to amend, fails to allege a prima facie case of
discrimination under either Title VII or the ADEA.
establish a prima facie case of race discrimination under
Title VII, Plaintiff must show that (1) he is a member of a
protected class; (2) he suffered an adverse employment
action; and (3) the unfavorable action gives rise to an
inference of discrimination. Stella v. Mineta, 284
F.3d 135, 145 (D.C. Cir. 2002). There is no dispute that Mr.
Shearill is a member of a protected class and suffered an
adverse employment action. As to the third prong, “[a]
plaintiff may satisfy [it] by demonstrating that [he] was
treated differently from similarly situated employees who are
not part of the protected class.” Mastro v. Potomac
Elec. Power Co., 447 F.3d 843, 850 (D.C. Cir. 2006)
(internal quotation marks omitted). Shearill alleges that
other African-American PNGS employees used the same racial
slur and were not terminated or otherwise disciplined. Compl.
¶ 19. These comparators, however, cannot support an
inference of race discrimination because they, too, are
African American. Their experiences say nothing about whether
PNGS treated employees of other races differently
than Mr. Shearill in like situations. Shearill also alleges
that, a decade ago, a white tenant of the building once used
the slur and faced no consequences. Id. ¶ 21.
But this comparison is also legally insufficient as there is
no allegation that the tenant was an employee of PNGS. And
Shearill has not alleged any other facts that could support
an inference of discrimination. Accordingly, the Court finds
that Shearill has failed to plead a prima facie case of race
establish a prima facie case of age discrimination under the
ADEA, Plaintiff must show that (1) he is a member of the
statutorily protected age group (40 to 70); (2) he is
qualified for the position; (3) he was terminated from the
position; and (4) he was replaced by a younger person who
does not fall within the statutorily protected age group.
Hayman v. Nat'l Acad. of Sciences, 23 F.3d 535,
537 (D.C. Cir. 1994). Even assuming that Mr. Shearill is over
40 years old (the complaint does not state his age), there is
no allegation in the complaint that he was replaced by
anyone, let alone someone under the age of 40. There are,
moreover, no other factual allegations in the complaint that
could support an inference of discrimination on the basis of
age. The Court therefore finds that Shearill has failed to
plead a prima facie case of discrimination in this regard.
Shearill has failed to plead, let alone prove, a violation of
either statute, PNGS is entitled to judgment on the pleadings
under Rule 12(c).
foregoing reasons, Defendant's  Motion for Summary
Judgment is hereby GRANTED. Plaintiffs  Emergency Motion
for Extension of Time and  Motion for Extension of Time