BAY v. GOLDEN CORRAL CORPORATION et al

Filing 27

ENTRY ON DEFENDANTS' MOTION TO DISMISS DEFENDANTS JUDY IRWIN, MICHAEL WILKERSON, AND LISA SCHWEICKERT - Because the Individual Defendants do not meet the definition of "employer" under the ADEA, and a lawsuit against them is redundant to the suit against Golden Corral, Plaintiff's complaint fails to state a plausible claim for relief against the Individual Defendants. Accordingly, 14 Motion to Dismiss Judy Irwin, Michael Wilkerson, and Lisa Schweickert is GRANTED. Plaintiff's claims against Golden Corral remain. See Entry for details. Signed by Judge Richard L. Young on 6/12/2018. (LBT)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
NEW ALBANY DIVISION
EDWARD R. BAY,

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Plaintiff,
v.
GOLDEN CORRAL CORPORATION,
JUDY IRWIN SR. V.P. of HR,
MICHEAL WILKERSON VP, AND
LISA SCHWEICKERT VP,
Defendants.

4:18-cv-00011-RLY-DML

ENTRY ON DEFENDANTS’ MOTION TO DISMISS DEFENDANTS JUDY
IRWIN, MICHAEL WILKERSON, AND LISA SCHWEICKERT
Plaintiff, Edward Bay, is an experienced restaurant franchisee who recently
applied for a Franchise Business Consultant positon for Golden Corral Corporation
(“Golden Corral”). After being denied a job offer, Plaintiff filed a complaint alleging age
discrimination in violation of the Age Discrimination in Employment Act (“ADEA”), 29
U.S.C. § 621 et seq. Judy Irwin, Michael Wilkerson, and Lisa Schweickert (the
“Individual Defendants”) now move to dismiss Plaintiff’s complaint and all causes of
action therein against them under Federal Rule of Civil Procedure 12(b)(6) for failure to
state a claim. For the reasons explained below, the court GRANTS the motion.
I.

Background
Plaintiff has more than 41 years of experience in the restaurant industry. (Filing

No. 1-1, Compl. at ¶ 9). In June 2017, Plaintiff responded to an employment
advertisement by Golden Corral seeking a Franchise Business Consultant/Multi-Unit
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Supervisor. (Id. ¶ 10). After completing three telephone interviews, Plaintiff met with
Golden Corral Corporation Division President Roy Hinojosa on July 17, 2017. (Id. ¶¶
11–14). During this interview, Plaintiff discussed his familiarity with Golden Corral and
indicated his desire to move forward in the hiring process. (Id. ¶ 14).
Plaintiff’s next series of interviews occurred on July 28, 2017. (Id. ¶ 15). His first
interview that day was with the Director of Human Resources, Erika Braum. (Id. ¶ 16).
When Plaintiff revealed his admiration for the longevity of Golden Corral’s staff, Braum
replied that “older team members can be a blessing and a curse” due to their resistance to
change. (Id.).
Plaintiff’s next interview was with Judy Irwin, Senior Vice President of Human
Resources. (Id. ¶ 17). Irwin’s response to Plaintiff’s positive view of long-tenured
employees was similar to Braun’s. (Id.).
Plaintiff’s third interview was with Michael Wilkerson, Vice President of
Company Operations (Id. ¶ 18). Toward the end of the interview, Wilkerson expressed
his concern that Plaintiff would be unable to complete the required 12 weeks of training.
(Id.). Wilkerson, who is much younger than Plaintiff, indicated that he himself almost
did not make it through the training and asked how Plaintiff expected to make it. (Id.).
Plaintiff’s fourth interview was with Lisa Schweickert, Vice President of Services
(Id. ¶ 19.) When discussing the longevity of Golden Corral’s employees, Schweickert
repeated the concerns of Braun and Irwin that older employees are often reluctant to
embrace change. (Id.).

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Plaintiff was informed in August 2017 that Golden Corral would not be going
forward with his application. (Id. ¶ 23). This resulted in Plaintiff filing the present suit.
II.

Motion to Dismiss Standard
A motion brought under Federal Rule of Civil Procedure 12(b)(6) challenges a

complaint for “failure to state a claim upon which relief can be granted.” To survive a
motion to dismiss, a complaint, accepted as true, must contain sufficient factual
allegations to demonstrate a plausible claim for relief. Bell Atl. Corp. v. Twombly, 550
U.S. 544, 556 (2007). This plausibility requirement is satisfied when the factual
allegations allow a “reasonable inference that the defendant is liable for the misconduct
alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
III.

Discussion
Plaintiff alleges that he was discriminated against due to his age in violation of the

ADEA. (Compl. at ¶ 26). The ADEA makes it unlawful “for an employer to fail or
refuse to hire…any individual…because of such individual’s age.” 29 U.S.C. §
623(a)(1). The Act defines an “employer” as “a person engaged in an industry affecting
commerce who has twenty or more employees for each working day in each of twenty or
more calendar weeks in the current or preceding calendar year” as well as “any agent of
such a person.” 29 U.S.C. § 630(b). Courts have rejected the notion that this language
allows individual liability for employees acting as agents of the employer. Birkbeck v.
Marvel Lighting Corp., 30 F.3d 507, 510 (4th Cir. 1994); Horwitz v. Board of Educ., 260
F.3d 602, 610 (7th Cir. 2001) (noting that an ADEA claim against a board of education
was properly brought against only the board because “we have suggested there is no
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individual liability under the ADEA”). This interpretation is supported by the Seventh
Circuit’s interpretation of the similar definitions of “employer” in the Americans with
Disabilities Act (“ADA”) and Title VII of the Civil Rights Act of 1964 (“Title VII”).
See, e.g., EEOC v. AIC Sec. Investigations, Ltd., 55 F.3d 1276, 1281–1282 (7th Cir.
1995) (rejecting as “an illusion” the argument that the “and any agent” language in the
definition of “employer” under the ADA allows individual liability and noting that “our
holding…obviously affects the resolution of the very similar questions under Title VII
and the ADEA); Boss v. Castro, 816 F.3d 910, 914 (7th Cir. 2016) (noting that “Title VII
authorizes suits against the employer as an entity, not against individual agents of the
employer”).
Plaintiff’s complaint contains no allegations to support the conclusion that any of
the Individual Defendants qualifies as an “employer” under the ADEA. The complaint
claims that Judy Irwin was the Senior Vice President of Human Resources, Michael
Wilkerson was the Senior Vice President of Company Operations, and Lisa Schweickert
was the Vice President of Operations Services. (Compl. at ¶¶ 5–7). These allegations
support the conclusion that the Individual Defendants were employees acting as agents of
the employer, Golden Corral, and so they cannot be sued under the ADEA.
The ADEA also does not permit a claim against the Individual Defendants in their
official capacity. Suing an employee in his or her official capacity “is simply one method
of bringing suit against the employer and is distinct from a personal capacity suit.” AIC
Sec. Investigations, Ltd., 55 F.3d at 1280. Thus, the official capacity claims against the
Individual Defendants are actually claims against Golden Corral, and because Golden
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Corral is also a named defendant, suing the Individual Defendants in their official
capacity is redundant. See, e.g., Thanongsinh v. Bd. of Educ., 462 F.3d 762 (7th Cir.
2006) (upholding the dismissal of a Title VII claim against an employee in his official
capacity when the plaintiff had the same claim against the employer itself); Levin v.
Madigan, 697 F. Supp. 2d 958, 974 (N.D. Ill. 2010) (dismissing ADEA and Title VII
claims against an official in her official capacity as duplicative of the suit against the
government entity).
IV.

Conclusion
Because the Individual Defendants do not meet the definition of “employer” under

the ADEA, and a lawsuit against them is redundant to the suit against Golden Corral,
Plaintiff’s complaint fails to state a plausible claim for relief against the Individual
Defendants. Accordingly, Defendants’ Motion to Dismiss Judy Irwin, Michael
Wilkerson, and Lisa Schweickert (Filing no. 14) is GRANTED. Plaintiff’s claims
against Golden Corral remain.

SO ORDERED this 12th day of June 2018.

Distributed Electronically to Registered Counsel of Record.
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