United States District Court, S.D. Indiana, New Albany Division
EDWARD R. BAY, Plaintiff,
GOLDEN CORRAL CORPORATION, JUDY IRWIN SR. V.P. of HR, MICHEAL WILKERSON VP, AND LISA SCHWEICKERT VP, Defendants.
ENTRY ON DEFENDANTS' MOTION TO DISMISS DEFENDANTS
JUDY IRWIN, MICHAEL WILKERSON, AND LISA SCHWEICKERT
RICHARD L. YOUNG, JUDGE
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.
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
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).
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
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.).
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.).
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.).
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.
Motion to Dismiss Standard
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).
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 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”).
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