United States District Court, D. Nebraska
GREGORY P. BARTUNEK, Plaintiff,
EFRAME, LLC, BRANDON NYFFELER, and MARCO TECHNOLOGIES, LLC, Defendants.
MEMORANDUM AND ORDER
RICHARD G. KOPF SENIOR UNITED STATES DISTRICT JUDGE.
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.
Nyffeler's Motion to Dismiss
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.
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”
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.
Motion to Introduce Evidence
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 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.
Bartunek's motion to introduce evidence (Filing
52) must be denied, and the materials attached to
such motion shall not be considered.
Marco's Motion for Summary Judgment
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.)
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.