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Bartunek v. Eframe, LLC

United States District Court, D. Nebraska

October 6, 2016

GREGORY P. BARTUNEK, Plaintiff,
v.
EFRAME, LLC, BRANDON NYFFELER, and MARCO TECHNOLOGIES, LLC, Defendants.

          MEMORANDUM AND ORDER

          RICHARD G. KOPF SENIOR UNITED STATES DISTRICT JUDGE.

         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 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.)

         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 ...


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