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Bay v. Golden Corral Corp.

United States District Court, S.D. Indiana, New Albany Division

July 30, 2019

EDWARD R. BAY, Plaintiff,



         In June 2017, at the age of 59, Plaintiff Edward R. Bay, applied for a Franchise Business Consultant (“FBC”) position with Golden Corral Corporation. After he learned he was not selected for the position, he filed a pro se Complaint alleging age discrimination in violation of the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621 et seq. Golden Corral now moves for summary judgment. For the reasons set forth below, the court GRANTS the motion.

         I. Procedural Rules

         On November 6, 2018, Golden Corral served Bay a Notice Regarding Right to Respond to and Submit Evidence in Opposition to Motion for Summary Judgment. (Filing No. 47). The Notice specifically informed Bay that his Response “must include a section labeled ‘Statement of Material Facts in Dispute' that identifies the potentially determinative facts and factual disputes that [he] contends demonstrate a dispute of fact precluding summary judgment.” (Id. at 3 (quoting Local Rule 56-1(b)). The Notice further informed Bay that the court will assume “the facts as claimed and supported by admissible evidence by [Defendant] are admitted without controversy” unless he specifically disputed those facts “with admissible evidence.” (Id. at 4 (quoting Local Rule 56-1(f)). Bay complied with neither rule. While the court can excuse his failure to provide a Statement of Material Facts in Dispute, it cannot excuse his failure to provide any evidence at all to support his allegations. Coleman v. Goodwill Indus. of Se. Wis., Inc., 423 Fed.Appx. 642, 643 (7th Cir. 2011) (“Though courts are solicitous of pro se litigants, they may nonetheless require strict compliance with local rules.”); Cady v. Sheahan, 467 F.3d 1057, 1061 (7th Cir. 2006) (“[E]ven pro se litigants must follow the rules of civil procedure.”). Accordingly, the court must accept Golden Corral's Statement of Facts as true. The court will also, in general, incorporate Bay's factual assertions to the extent they are relevant and supported by his deposition testimony (as addressed in Golden Corral's briefs). The court now turns to the facts of the present case.

         II. Facts

         A. Bay Applies for the Position

         Golden Corral operates buffet style restaurants and has multiple company-owned and franchisee-owned locations through the United States. (Filing No. 46-1, Declaration of Erika Braun (“Braun Decl.” ¶ 3)). Throughout 2017, Golden Corral publically posted on multiple websites an “evergreen” job advertisement for multi-unit management candidates. (Id.). Such candidates are hired to work either as a District Manager (“DM”) to manage multiple company-owned restraurants, or as an FBC to service multiple franchisee-owned restaurants. (Id.). On June 25, 2017, Golden Corral received Bay's electronic job application for a multi-unit management candidate position. (Id.).

         B. The Interviews

         On July 17, 2017, Bay had an in-person interview with Golden Corral Corporation Division President Roy Hinojosa at the Indianapolis Airport. (Filing No. 46-4, Declaration of Roy Hinojosa (“Hinojosa Decl.” ¶ 3)). After that interview, Hinojosa recommended that Bay be passed through to the next phase in the hiring process, which involved a series of interviews conducted at Golden Corral's corporate office on July 28, 2017. (Id.).

         His first interview that day was with Director of Human Resources Erika Braun. (Braun Decl. ¶ 5). After Bay expressed his admiration for the longevity of Golden Corral's staff, Braun stated that long-term staff are resistant to change and that “older employees are a blessing and a curse.” (Filing No. 46-3, Deposition of Edward R. Bay (“Bay Dep.”) at 122; see also Bay Dep. at 74-75 (testifying he knows of nothing besides the purported facts in his original complaint that could support his claim for age discrimination); Bay Dep. Ex. 3, Compl. ¶¶ 16, 19).

         Bay's next interview was with Senior Vice President of Human Resources Judy Irwin. (Filing No. 46-6, Declaration of Judy Irwin (“Irwin Decl.”) ¶ 4). During the interview, Irwin inquired about Bay's time as a franchisee with Shoney's family dining restaurants. (Id. ¶ 5). His resume indicated he had received numerous awards and commendations for his Shoney's restaurants, yet he told Irwin that he chose not to renew his leases for the restaurants. (Id.). Irwin was concerned with Bay's response that he terminated his restaurants because it did not make sense that he would voluntarily relinquish successful restaurants and years later, seek employment in the restaurant industry. (Id.).

         Bay's third interview was with Michael Wilkerson, Vice President of Company Operations. (Filing No. 46-7, Declaration of Michael Wilkerson (“Wilkerson Decl, ”) ¶ 2). During the interview, Wilkerson asked about the gaps in his employment, why he left Shoney's after being with the company so long, and why he wanted to return to the restaurant industry. (Id. ¶ 4). Wilkerson was particularly concerned about Bay's time away from a hands-on FBC role, and asked Bay several specific questions about the FBC position at Golden Corral. (Id. ¶¶ 4-5). Wilkerson also asked him how he would handle franchises under different scenarios. Wilkerson was not satisfied with Bays' answers; he thought they exhibited a lack of leadership and time-management abilities and reflected that he was not familiar with the day-to-day duties and responsibilities required of an FBC in order to adequately support franchisees and drive results. (Id. ¶ 5). Toward the end of the interview, Wilkerson informed Bay that if he was offered the FBC position, he would first attend Golden Corral's 12-week training course that all newly-hired FBC's must complete. (Id. ¶ 6). He said, “How do you think you are going to be able to make it through 12 weeks of training at one of our restaurants? Look at me, I almost didn't make it, how will you?” (Bay Dep. at 94).

         Bay's fourth interview was with Lisa Schweickert, Vice President of Operations Services. (Filing No. 46-8, Declaration of Lisa Schweickert (“Schweickert Decl.”) ¶ 2). At some point during the interview, Bays expressed his admiration for the longevity of Golden Corral's staff. Schweickert allegedly said that older team members could be a blessing and a curse because long-term staff were resistant to change and therefore an impediment to Golden Corral's new direction. (Compl. ¶¶ 16, 19).

         Schweickert was interested in Bay's experience at Shoney's[1] because she previously worked with Rick Smith, the former Vice President of Human Resources at Shoney's. (Schweickert Decl. ¶ 4; see also Filing No. 46-9, Declaration of Rick Smith (“Smith Decl.”), ¶¶ 1-2). Schweickert asked Bay if he knew Smith while he worked at Shoney's. Bay confirmed that he knew Smith, and Schweickert let Bay know that she and Smith had previously worked together. (Schweickert Decl., ¶ 5; see also Bay Dep. at 117). On the afternoon of July 28, 2017, after Schweickert had completed her interview with Plaintiff, she contacted[2] Smith via telephone and asked him about Bay's leadership and work style while Bay was with Shoney's. (Schweickert Decl., ¶ 7.) Smith told Schweickert that he remembered Bay from his time with Shoney's in the operations/franchise department until 2004 when Plaintiff began working as a Shoney's franchisee. (Id. ¶ 8). Smith discussed with Schweickert that Golden Corral is much more complex and difficult to run than Shoney's, and that he was aware that an FBC at Golden Corral is tasked with supporting and coaching franchisees to achieve optimal results, as well as ensuring that franchisees comply with Golden Corral's operations procedures and policies. (Id. ΒΆ 9). Smith reported to Schweickert that, during his time at Shoney's, he was aware of reports that Bay was very difficult to deal with and that he ...

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