United States District Court, S.D. Indiana, New Albany Division
EDWARD R. BAY, Plaintiff,
GOLDEN CORRAL CORPORATION, Defendant.
ENTRY ON DEFENDANT'S MOTION FOR SUMMARY
RICHARD L. YOUNG, JUDGE
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.
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
Bay Applies for the Position
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.).
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.).
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).
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.
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).
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).
was interested in Bay's experience at
Shoney's 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 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. ¶ 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 ...