Bartunek v. eFrame, LLC

Filing 55

MEMORANDUM AND ORDER - IT IS ORDERED: Defendant Nyffeler's motion to dismiss (Filing 16 ) pursuant to Fed. R. Civ. P. 12(b)(6) is granted, and defendant Nyffeler is dismissed from this case. The plaintiff's motion to introduce evidence ( Filing 52 ) is denied, and the materials attached to such motion shall not be considered. The motion for summary judgment (Filing 23 ) filed by defendant Marco Technologies, LLC, is granted, and Marco is no longer a party to this case. Judgment as to defendants Nyffeler and Marco Technologies, LLC, shall be withheld pending the resolution of this case as to the remaining defendant, eFrame, LLC. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party)(TCL )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
GREGORY P. BARTUNEK,
Plaintiff,
v.
EFRAME, LLC, BRANDON
NYFFELER, and MARCO
TECHNOLOGIES, LLC,
Defendants.

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8:16CV69

MEMORANDUM
AND ORDER

After his employment was terminated in May 2015, plaintiff Gregory Bartunek,
proceeding pro se, filed this action for age discrimination and retaliation against his
former employer, eFrame, LLC; his former immediate supervisor, Brandon Nyffeler;
and Marco Technologies, LLC, an entity that now serves a number of former eFrame
clients after eFrame was dissolved on February 25, 2016. Bartunek, who is over 60
years of age, alleges that he was terminated from his employment because of his age
and in retaliation for his complaints to eFrame about what he perceived to be systemic
age discrimination within the company. Bartunek brings his claims under the Age
Discrimination in Employment Act (“ADEA”), 29 U.S.C. §§ 621-634 (Westlaw
2016), and Title VII, 42 U.S.C. §§ 2000e et seq.
I. Nyffeler’s Motion to Dismiss
Defendant Nyffeler has filed a motion to dismiss (Filing 16) pursuant to Fed.
R. Civ. P. 12(b)(6), arguing that because he was not Bartunek’s “employer” within the
meaning of the ADEA and Title VII, Bartunek’s claim against him must be dismissed.
I agree.

Title VII only imposes liability upon employers, not individual supervisors or
co-workers. Stanback v. Best Diversified Prod., Inc., 180 F.3d 903, 906 (8th Cir.
1999); Bales v. Wal-Mart Stores, Inc., 143 F.3d 1103, 1111 (8th Cir. 1998). The same
rule applies to claims brought under the ADEA. See, e.g., Medina v. Ramsey Steel Co.,
Inc., 238 F.3d 674, 686 (5th Cir. 2001); Smith v. Lomax, 45 F.3d 402, 403 n.4 (11th
Cir. 1995); Birkbeck v. Marvel Lighting Corp., 30 F.3d 507, 510 (4th Cir. 1994);
Robinson v. Bridgeport Pub. Sch., No. 8:16CV177, 2016 WL 3920167, at *6 (D. Neb.
July 15, 2016) (ADEA claim against plaintiff’s co-workers and supervisors dismissed
for failure to state a claim upon which relief can be granted); Coleman v. Jass, No.
8:13CV82, 2013 WL 4041860, at *2 (D. Neb. Aug. 8, 2013) (co-workers and
supervisors may not be held personally liable under ADEA); Smith v. PayPal, Inc.,
No. 8:12CV226, 2013 WL 2444032, at *7 (D. Neb. June 4, 2013) (“although the
Eighth Circuit has not yet decided the issue, most other federal circuit courts of
appeals have concluded that individuals may not be held personally liable under the
ADEA” (citing cases)); Rickert v. Midland Lutheran College, 8:07CV334, 2007 WL
2933229, at *1 (D. Neb. Oct. 5, 2007) (dismissing ADEA claims against individual
defendants because they were not “employers” and could not be held individually
liable under ADEA); Feller v. McCarthy, No. 4:07CV3117, 2007 WL 3204463, at
*3 (D. Neb. Oct. 30, 2007) (finding plaintiff’s complaint did not state ADEA claim
against two individual defendants because complaint did not allege they were
plaintiff’s “employers” under ADEA).
Therefore, defendant Nyffeler’s motion to dismiss (Filing 16) pursuant to Fed.
R. Civ. P. 12(b)(6) will be granted, and Bartunek’s claims against Nyffeler shall be
dismissed.
II. Motion to Introduce Evidence
On September 6, 2016—approximately 75 days after the motion for summary
judgment filed by Marco Technologies, LLC, became ripe for disposition—Bartunek
filed a motion to introduce evidence (Filing 52) in connection with Marco’s motion
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for summary judgment seeking to establish that Marco is holding itself out in the
relevant market as eFrame.
Under Fed. R. Civ. P. 6(b)(1), “[w]hen an act may or must be done
within a specified time, the court may, for good cause, extend the time
. . . on motion made after the time has expired if the party failed to act
because of excusable neglect.” The district court has discretion to admit
or exclude materials under this rule, and its refusal to accept untimely
filed materials will not be reversed for an abuse of discretion unless the
proponent of the materials has made an affirmative showing of excusable
neglect.
Huggins v. FedEx Ground Package Sys., Inc., 592 F.3d 853, 856 (8th Cir. 2010)
(internal quotation marks and citations omitted). Here, Bartunek has not made any
showing whatsoever of excusable neglect (Filings 52 & 52-1), nor has he filed a
motion under Fed. R. Civ. P. 56(d) indicating that he “cannot present facts essential
to justify [his] opposition” to Marco’s motion for summary judgment such that the
court should defer its consideration of the motion or allow Bartunek additional time
to take discovery.
Therefore, Bartunek’s motion to introduce evidence (Filing 52) must be denied,
and the materials attached to such motion shall not be considered.
III. Marco’s Motion for Summary Judgment
Defendant Marco has filed a motion for summary judgment (Filing 23) on the
grounds that (1) Bartunek failed to exhaust his administrative remedies by filing an
NEOC or EEOC charge against Marco, nor could he since he was never employed by
Marco; (2) any age-discrimination claim Bartunek has against Marco is time-barred;
and (3) Marco is not a successor in interest to eFrame. (Filing 24, Def.’s Br. Supp.
Mot. Summ. J.)

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Bartunek argues that “Marco is a defendant in this lawsuit not because the
Plaintiff claims that Marco committed Age Discrimination against the Plaintiff, but
because Marco is a successor of interest for eFrame, and thus the Administrative
Remedies don’t apply to them.” (Filing 36, Pl.’s Br. Opp’n Mot. Summ. J. at CM/ECF
p. 8.) In other words, Bartunek asserts that because Marco is eFrame’s successor,
Bartunek did not need to exhaust administrative remedies or bring claims against
Marco as a separate entity within a certain time frame.
A.

Undisputed Material Facts

1.
Plaintiff Bartunek was a former employee of eFrame, LLC (“eFrame”).
(Filing 1 ¶ 4.) Bartunek’s employment with eFrame began on December 12, 2013, and
ended on or about May 13, 2015. (Filing 1 ¶ 8; Filing 51, Answer of eFrame ¶¶ 4, 8.)
2.
Bartunek filed a complaint with the Nebraska Equal Opportunity
Commission (“NEOC”) against eFrame on June 1, 2015. (Filing 36-3 at CM/ECF p.
3.) Bartunek notified the U.S. Equal Employment Opportunity Commission (“EEOC”)
of his intent to sue eFrame on December 23, 2015. (Filing 1 ¶ 11.)
3.
Bartunek filed his first complaint solely against eFrame in this court on
February 9, 2016. (Filing 1.)
4.
Marco Technologies, LLC, (“Marco”) is a Minnesota limited liability
company with its principal place of business in St. Cloud, Minnesota. (Filing 25-1,
Aff. Mrozek ¶ 4.)
5.
On or about February 25, 2016, Marco entered into an Asset Purchase
Agreement (the “Agreement”) with Premier Bank (“Premier”), a Nebraska banking
corporation. Under the Agreement, Marco purchased a specific tranche of assets from
Premier that Premier had acquired from eFrame following a foreclosure of liens

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possessed by Premier on eFrame’s assets pursuant to the Nebraska Uniform
Commercial Code. (Filing 25-1, Aff. Mrozek ¶ 7.)
6.
The Agreement was between Marco as the “buyer” and Premier as the
“secured party.” The Agreement provided that eFrame was indebted to Premier
pursuant to an April 13, 2012, promissory note in the original principal amount of
$2,388,096.88; that eFrame granted Premier a security interest in its assets in
exchange for the loan; that eFrame defaulted on its obligations to Premier; that Marco
agreed to purchase specifically described collateral, which consisted of customer
service agreements between eFrame and various of its clients and websites entitled
“www.goeframe.com,” “www.eframetech.com,” and “www.eframemsp.com”; and
that “[n]one of the parties hereto intends . . . to assume or become liable for any
obligation, liability or indebtedness of eFrame.” (Filing 25-2, Asset Purchase
Agreement at CM/ECF pp. 1, 3, 14-19.) Specifically, the parties agreed that
“NEITHER SECURED PARTY OR BUYER IS ASSUMING OR SHALL BE
LIABLE FOR ANY DEBT, OBLIGATION, RESPONSIBILITY OR LIABILITY OF
EFRAME . . . WHETHER KNOWN OR UNKNOWN . . . INCLUDING . . .
LIABILITY WITH RESPECT TO . . . EMPLOYMENT.” (Filing 25-2, Asset
Purchase Agreement at CM/ECF p. 3 (capitalization in original).)
7.
Pursuant to the Agreement, Marco purchased from Premier all of
Premier’s rights, title, and interest in various customer contracts and agreements.
(Filing 25-1, Aff. Mrozek ¶ 8.)
8.
Pursuant to the Agreement, Premier Bank retained—and Marco excluded
and did not purchase—all equipment, accounts receivable, inventory, furniture,
fixtures, general intangibles (except as provided in the Agreement), and all other
assets or personal property constituting the collateral of Premier. (Filing 25-1, Aff.
Mrozek ¶ 9.)

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9.
On or about February 25, 2016, Premier executed and delivered to Marco
a bill of sale related to the assets purchased by Marco from Premier. (Filing 25-1, Aff.
Mrozek ¶ 10.) That same date, eFrame dissolved after it “surrendered all of its assets
to its largest creditor.” (Filing 51, Answer of eFrame ¶¶ 2, 13.)
10. At the time the Agreement was executed, Marco had no agreements in
place with the counter parties to the customer contracts, had no ability to compel the
counter parties to the customer contracts to do business with Marco, and had no
guarantees that the counter parties to the customer contracts would do business with
Marco or otherwise agree to an assignment of their specific contract to Marco. In fact,
40 percent of the customer contracts have been canceled or are pending cancellation
by the counter parties as of May 2016. (Filing 25-1, Aff. Mrozek ¶ 11.)
11. At no time has Marco entered into any contract with eFrame, including
for the purchase or transfer of assets, assumption of liabilities, or other acquisition of
eFrame as a going concern. (Filing 25-1, Aff. Mrozek ¶ 12.)
12. At no time did Marco take over, acquire, lease, or otherwise occupy any
physical location owned or utilized by eFrame. (Filing 25-1, Aff. Mrozek ¶ 14.)
13. Out of approximately 30 eFrame employees employed in June 2015,
Marco temporarily hired 12 (none of whom are supervisors), and ultimately retained
only 7 following the transaction between Marco and Premier. Those employees work
in Marco facilities, under Marco (non-eFrame) management, and are performing work
on behalf of Marco’s business generally, not their eFrame jobs. One of the former
eFrame employees works as a technical writer for projects affecting all of Marco, one
performs purchasing and miscellaneous operations duties, and five work at the Marco

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Support Desk serving all customers who purchase Marco’s services. (Filing 25-1, Aff.
Mrozek ¶ 15.)1
14. At no time did Marco retain, hire, or employ plaintiff Bartunek. (Filing
25-1, Aff. Mrozek ¶ 16.)
15. During the diligence period leading up to Marco’s transaction with
Premier, a lien search generally revealed the existence of lawsuits pending against
eFrame, including plaintiff Bartunek’s lawsuit against eFrame. (Filing 25-1, Aff.
Mrozek ¶ 17.)
16. Plaintiff Bartunek filed his first amended complaint adding Marco and
Brandon Nyffeler on April 13, 2016. (Filing 8.)
B.

Standard of Review

“Summary judgment is proper if the pleadings, the discovery and disclosure
materials on file, and any affidavits show that there is no genuine issue as to any

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Plaintiff objects to this fact, stating in his brief that because Marco did not
provide names of its employees who came from eFrame, he cannot determine whether
Marco actually hired eFrame supervisors or not. (Filing 36 at CM/ECF p. 4.)
Plaintiff’s “objection” is not supported by any affidavit, declaration, or authenticated
evidence. Therefore, this fact is undisputed for purposes of Marco’s motion for
summary judgment. See NECivR 56.1(b)(1) (“The party opposing a summary
judgment motion must include in its brief a concise response to the moving party’s
statement of material facts. Each material fact in the response must be set forth in a
separate numbered paragraph, must include pinpoint references to affidavits,
pleadings, discovery responses, deposition testimony (by page and line), or other
materials upon which the opposing party relies . . . .”); NEGenR 1.3(g) (“Unless stated
otherwise, parties who proceed pro se are bound by and must comply with all local
and federal procedural rules.”).
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material fact and that the movant is entitled to judgment as a matter of law.” Jackson
v. United Parcel Service, Inc., 643 F.3d 1081, 1085 (8th Cir. 2011) (quoting
Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc)). After
the movant has demonstrated the absence of a genuine issue of material fact, the
nonmovant must respond by submitting evidence that sets out specific facts showing
that there is a genuine issue for trial. Jackson, 643 F.3d at 1085. “The basic inquiry
is whether the evidence presents a sufficient disagreement to require submission to a
jury or whether it is so one-sided that one party must prevail as a matter of law.”
Diesel Machinery, Inc. v. B.R. Lee Indus., Inc., 418 F.3d 820, 832 (8th Cir. 2005)
(internal quotation marks and citations omitted). “Where the record taken as a whole
could not lead a rational trier of fact to find for the nonmoving party, there is no
genuine issue for trial.” Jackson, 643 F.3d at 1085 (quoting Torgerson, 643 F.3d at
1042).
C.

Analysis

It is undisputed that Bartunek was never employed by Marco and that Bartunek
did not bring an administrative action against Marco alleging age discrimination with
either the NEOC or EEOC. Rather, Bartunek filed his discrimination complaint with
the NEOC only against eFrame, LLC. (Filing 36-3 at CM/ECF p. 3.) Bartunek
contends that Marco is liable for his claims against eFrame under the theory of
successor liability.
The premise of successor liability is that “[f]ailure to hold a
successor employer liable for the discriminatory practices of its
predecessor could emasculate the relief provisions of Title VII by
leaving the discriminatee without a remedy or with an incomplete
remedy.” [EEOC v. MacMillan Bloedel Containers, Inc., 503 F.2d 1086,
1091 (6th Cir. 1974).] The leading approach to resolving questions of
successor liability remains the Sixth Circuit’s decision in MacMillan,
where the court set forth a nine-factor test to be applied on a
case-by-case basis. 503 F.2d at 1094. These considerations include: (1)
whether the successor company had notice of the charge; (2) the ability
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of the predecessor to provide relief; (3) whether there has been a
substantial continuation of business operations; (4) whether the new
employer uses the same plant; (5) whether the new employer uses the
same or substantially the same work force; (6) whether the new employer
uses the same or substantially the same supervisory personnel; (7)
whether the same jobs exist under substantially the same working
conditions; (8) whether the new employer uses the same machinery,
equipment, and methods of production; and (9) whether the new
employer produces the same product. Id.
Prince v. Kids Ark Learning Ctr., LLC, 622 F.3d 992, 995 (8th Cir. 2010) (Title VII
case). However, these factors are not “in themselves the test for successor liability. .
. . The ultimate inquiry always remains whether the imposition of the particular legal
obligation at issue would be equitable and in keeping with federal policy.” Id. at 995
(internal quotation marks and citation omitted).
In Prince, the court of appeals held that the district court did not abuse its
discretion in refusing to apply successor liability in an employee’s Title VII action
against her employer and the company that took over her former employer’s
operations. The court noted that several factors favored the imposition of successor
liability—such as the new employer having notice of the plaintiff’s discrimination
charge against her former employer and 50 percent of the former employer’s staff
going to the new employer to perform the same jobs in the same working conditions
with the same equipment and vehicles used by the former employer. Nevertheless,
the court of appeals found that several other factors supported the district court’s
decision to not impose successor liability on the new employer—such as the facts that
the former owner was in bad health, the former employer was on state probation for
mismanagement, the former employer was going to lose its operating license
notwithstanding the alleged discriminatory conduct, the new employer had new
management and financing, and there was no connection between the formation of the
new business and the plaintiff’s claim of discrimination.

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Application of the MacMillan factors to this case does not support subjecting
Marco to successor liability under Title VII for the allegedly unlawful employment
practices of eFrame. While it is true that eFrame presumably cannot pay any judgment
obtained against it because it is dissolved and Marco is in a position to provide relief
to Bartunek since it is an ongoing business, the remaining MacMillan factors weigh
in Marco’s favor.
During the diligence period leading up to Marco’s February 25, 2016,
transaction with Premier, a lien search generally revealed the existence of lawsuits
pending against eFrame—including Bartunek’s lawsuit against Marco—but there is
no evidence that Marco knew the substance of Bartunek’s claims against eFrame until
Marco was added as a defendant in this case on April 13, 2016. Marco did not take
over, acquire, lease, or otherwise occupy any of eFrame’s physical locations; Marco
temporarily hired 12 non-supervisory eFrame employees out of eFrame’s 30 total
employees, ultimately retaining only 7 of them after the Premier-Marco transaction;
and the 7 former eFrame employees work in Marco facilities, under Marco
management, and are performing work on behalf of Marco’s business generally, not
their eFrame jobs.
Further, the Asset Purchase Agreement between Marco and Premier Bank
recites that Marco was to acquire a portion of eFrame’s assets from Premier after
eFrame defaulted on its 2012 loan from Premier, which had a security interest in
eFrame’s assets. Marco did not enter into a contract with eFrame for the purchase or
transfer of its assets, assumption of its liabilities, or other acquisition of eFrame as a
going concern—rather, Marco purchased only a portion of eFrame’s assets from
Premier in the form of customer contracts and three website addresses—negating the
existence of a predecessor-successor relationship between eFrame and Marco.
Significantly, the Agreement specifically states that Marco was to be free from any
of eFrame’s debts, obligations, responsibilities, or liabilities—whether known or
unknown—with respect to employment. There is no evidence this transaction was
some sort of sham designed to evade employment discrimination law, as there is no
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evidence whatsoever of a connection between the formation of Marco Technologies,
LLC, and Bartunek’s claim of discrimination.
Thus, the great majority of the MacMillan factors militate against subjecting
Marco to successor liability under Title VII for the allegedly unlawful employment
practices of eFrame as against the plaintiff, and this conclusion is buttressed by the
language of the Asset Purchase Agreement between Marco and Premier Bank. Nutt
v. Kees, 796 F.3d 988, 993 (8th Cir. 2015) (assuming doctrine of successor liability
applies in ERISA cases, district court improperly weighed the equities in finding
successor liability when defendant lessor of successor entity did not negotiate directly
with seller regarding purchase price, terms, and potential liability, lessor was not party
to unlawful practices of predecessor, and lessor operated business without significant
connection to culpable parties; the fact that lessor simply continued operations did not
create liability because “[i]f the doctrine of successor liability required no more than
subsequent operation, the doctrine inevitably would discourage the free transfer of
assets to their most valuable uses”); Whitmore v. O’Connor Management, Inc., 156
F.3d 796, 799 (8th Cir. 1998) (rejecting plaintiff’s request for something “analogous
to successor liability” under Title VII because plaintiff’s argument suffered from
several flaws, “not the least of which is the fact that there was no sale of a business
creating a predecessor-successor relation between the two corporations”); Dominguez
v. Hotel, Motel, Restaurant & Miscellaneous Bartenders Union, Local No. 64, 674
F.2d 732, 733 (8th Cir. 1982) (per curiam) (refusing to impose successor liability in
discrimination case because defendant acquired predecessor’s assets at foreclosure
sale without any “direct or indirect knowledge” of plaintiff’s pending discrimination
allegations, even though successor used same business name and provided
substantially same services with same physical plant and equipment and with
substantially same work force); see also Korlin v. Chartwell Health Care, Inc., 128
F. Supp. 2d 609, 614 (E.D. Mo. 2001) (holding that privity between predecessor and
successor employer is necessary for successor liability; “it would not be equitable, nor
consistent with Supreme Court and Eighth Circuit precedent, to hold [alleged
successors] liable for [predecessors’] discriminatory employment practices when there
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was no privity, nor sale of assets, between the predecessors and successors”); Greater
Kansas City Laborers Pension Fund v. Al Muehlberger Concrete Co., LLC., No.
4:14-CV-229, 2015 WL 6457295, at *2 (W.D. Mo. Oct. 26, 2015) (denying summary
judgment when parties disagreed and presented conflicting evidence regarding factors
used to determine whether successor liability was proper, such as whether entities
shared the same owner, significant number of employees, and same type of work).
Because Bartunek’s only basis for including Marco in this lawsuit is that Marco
is subject to successor liability for eFrame’s allegedly unlawful employment
discrimination against Bartunek,2 and because I have found that Marco is not subject
to such successor liability, Marco’s motion for summary judgment must be granted.
Accordingly,
IT IS ORDERED:
1.
Defendant Nyffeler’s motion to dismiss (Filing 16) pursuant to Fed. R.
Civ. P. 12(b)(6) is granted, and defendant Nyffeler is dismissed from this case;
2.
The plaintiff’s motion to introduce evidence (Filing 52) is denied, and the
materials attached to such motion shall not be considered;
3.
The motion for summary judgment (Filing 23) filed by defendant Marco
Technologies, LLC, is granted, and Marco is no longer a party to this case; and

2

See Filing 36, Pl.’s Br. Opp’n Mot. Summ. J. at CM/ECF p. 8 (“Marco is a
defendant in this lawsuit not because the Plaintiff claims that Marco committed Age
Discrimination against the Plaintiff, but because Marco is a successor of interest for
eFrame . . . .”).
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4.
Judgment as to defendants Nyffeler and Marco Technologies, LLC, shall
be withheld pending the resolution of this case as to the remaining defendant, eFrame,
LLC.
DATED this 6th day of October, 2016.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge

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