Young v. Easter Enterprises, Inc.

• Decision Date: 29 November 1995
• Docket Number: No. EV 94-127-C.,EV 94-127-C.
• Citation: 915 F. Supp. 58
• Parties: Cathy M. YOUNG, et al., Plaintiffs, v. EASTER ENTERPRISES, INC. d/b/a Great Scot Supermarkets, and Buehler Foods, Inc., d/b/a Buehler's Buy-Low, Defendants.
• Court: U.S. District Court — Southern District of Indiana

915 F. Supp. 58

Cathy M. YOUNG, et al., Plaintiffs, v. EASTER ENTERPRISES, INC. d/b/a Great Scot Supermarkets, and Buehler Foods, Inc., d/b/a Buehler's Buy-Low, Defendants.

No. EV 94-127-C.

United States District Court, S.D. Indiana, Evansville Division.

November 29, 1995.

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Michael C Kendall, W. Russell Sipes, Kelli R. Keller, Kendall Law Office, Indianapolis, IN, for Plaintiffs.

James P. Casey, Bowers Harrison Kent & Miller, Evansville, IN, Robert C. Thomson, Mark W. Thomas, Grefe & Sidney, Des Moines, IA, for Easter Enterprises, Inc.

Wm. Michael Schiff, Mary Lee Franke, Ziemer Stayman Weitzel & Shoulders, Evansville, IN, for Buehler's Foods, Inc.

MEMORANDUM

BROOKS, District Judge.

This Matter is before the Court on the Defendant Easter Enterprises, Inc.'s Motion to Dismiss and in the Alternative for Summary Judgment and Defendant Easter Enterprises, Inc.'s Brief in Support of Motion to Dismiss filed September 19, 1994. The Plaintiffs' Answer Brief in Response to Defendant Easter Enterprises, Inc.'s Motion to Dismiss and in the Alternative for Summary Judgment was filed January 9, 1995. The Plaintiffs' Supplemental Authorities to Plaintiffs' Answer Brief in Response to Defendant Easter Enterprises, Inc.'s Motion to Dismiss, and in the Alternative, for Summary Judgment was filed January 17, 1995. The Defendant Easter Enterprises, Inc.'s Reply Brief was filed February 24, 1995.

This Matter is also before the Court on the Defendant's Buehler Foods, Inc. d/b/a Buehler's Buy-Low Motion to Dismiss or in the Alternative, Motion for Summary Judgment and Buehler Foods' Brief in Support of Motion to Dismiss or in the Alternative, Motion for Summary Judgment filed January 30, 1995. The Plaintiffs' Response to Defendant's Motion to Dismiss and/or Motion for Summary Judgment, Answer Brief in Response to Defendant Buehler's Foods, Inc.'s Motion to Dismiss and in the Alternative for Summary Judgment and Material Facts in Dispute were filed June 8, 1995. In the Magistrate Judge's Order on Telephone Status Conference issued May 26, 1995, Magistrate Hussman ordered that the "Plaintiffs shall file any supplemental briefs in response to the Defendant's motion to Dismiss or in the Alternative, Motion for Summary Judgment filed by defendant Buehler Foods, Inc. d/b/a Buehler's Buy-Low, on January 31, 1995, by not later than fifteen (15) days after the receipt of the responses to the discovery served May 12, 1995." (Order of May 26, 1995 ¶ 1).

The Plaintiffs have not filed any supplemental briefs in this Matter.

Statement of Relevant Facts

This action was brought by 122 individuals who were employed by the Defendant Easter Enterprises, Inc. d/b/a Great Scot Supermarkets ("Easter") at its grocery stores in Evansville, Indiana. (Complaint ¶ 6). Fifty-two of the Plaintiffs are over the age of 40 ("older employees"). (Complaint ¶ 6; Complaint Ex. A; Easter Aff. ¶ 19). Seventy of the Plaintiffs are under the age of 40 ("younger employees"). (Complaint ¶ 7; Complaint Ex. B; Easter Aff. ¶ 20). One Plaintiff, Maurine Mattingly, is alleged to be "handicapped." (Complaint ¶ 8). On or about September 13, 1993, the Defendant Easter closed the stores which it operated in Evansville. (Complaint ¶¶ 6, 15).

At the time that the Defendant Easter ceased its operations, there was in effect a Collective Bargaining Agreement ("CBA") governing the terms and conditions of employment between the Defendant Easter and the Plaintiffs' collective bargaining representative, United Food & Commercial Workers District Union Local 700 ("Union"). (Complaint ¶ 12).

The Defendant Easter's termination of its Evansville operations resulted from a determination by the Defendant Easter's shareholders to terminate its retail grocery store operations in December, 1992. (Easter Aff. ¶ 3). Easter employed a business broker to assist in finding a purchaser for the assets of its retail grocery stores. (Easter Aff. ¶ 3). The Evansville stores were purchased by the Defendant Easter from Super Valu Stores, Inc. in November, 1984. (Easter Aff. ¶ 5). In connection with this sale, Super Valu retained a "right of first refusal" should the Defendant Easter receive an offer to purchase the Evansville stores. (Easter Aff. ¶ 5). After the Defendant Easter received an offer to purchase the stores from Schnuck's Markets, Inc. on June 8, 1993, Defendant Easter notified Super Valu of the offer for the purchase of the assets of its Evansville stores. (Easter Aff. ¶¶ 7-8). The Defendant Buehler Foods, Inc. d/b/a Buehler's Buy-Low ("Buehler") received an assignment of the right of first refusal from Super Valu, and notified the Defendant Easter on July 6, 1993 that it intended to exercise this right by purchasing the assets and properties of Easter located in Evansville. (Easter Aff. ¶ 9). The Defendants Easter and Buehler thereafter negotiated the terms by which the purchase would be consummated. (Easter Aff. ¶ 9).

On July 14, 1993, all of the employees working in the Evansville stores received a "Worker Adjustment and Retraining Notification" form ("WARN") including a "Notice of Closing" with their pay checks. (Easter Aff. ¶ 11). A copy of this notice was also sent the Union on July 14, 1993. (Easter Aff. ¶ 12). This notice informed the employees that all of the Evansville stores would be permanently closed by the Defendant Easter, and their employment with Easter would be terminated. (Easter Aff. ¶ 11, Defendant Easter Enterprises, Inc. Statement of Material Facts Ex. B). On July 27, 1993, the Defendant Easter received a letter from the Union requesting bargaining over the effects of the closing. (Easter Aff. ¶ 12). On July 27, 1993, the Defendant Easter sent a "Notice of Intent to Terminate" the Great Scot Supermarket Pension Plan. (Easter Aff. ¶ 12). At the end of July, 1993, Buehler received permission from Easter to post a notice in the Evansville stores advising all Easter employees that Buehler was hiring employees for "its stores" and a notice advising applicants of some terms and conditions of employment with Buehler. (Clesi Aff. ¶ 3).

On August 27, 1993, a memorandum regarding the settlement of grievances between the Union and the Defendant Easter was issued. (Plaintiffs' Answer Brief in Response to Defendant Easter Enterprises Inc.'s Motion to Dismiss or in the Alternative for Summary Judgment Ex. 1 (hereinafter "Plaintiffs' Easter Answer Brief").

The Defendant Easter and the employees' Union submitted a dispute regarding the closing of the Evansville stores and whether Easter was in violation of the CBA for not binding the Defendant Buehler to the CBA to arbitration pursuant to the CBA. (Easter Aff. ¶ 15). The arbitration hearing was held on October 5, 1993, and Arbitrator Elliott H. Goldstein issued his Opinion and Award on November 1, 1993 denying the Union's grievance in its entirety. (Easter Aff. ¶ 17-18; Plaintiff's Designation of Documents Relied on in Plaintiffs' Response in Opposition Ex. 2 (hereinafter "Arbitrator's Decision at p. —")).

All of the older employees who are Plaintiffs in this action filed charges of age discrimination against the Defendants Easter and Buehler with the Equal Employment Opportunity Commission ("EEOC") dated February 22, 1994. (Plaintiffs' Easter Answer Brief Ex. 2). All of the younger employees who are Plaintiffs in this action attempted to file charges of age discrimination against the Defendants Easter and Buehler dated February 22, 1994. (Plaintiffs' Easter Answer Brief Ex. 2). The EEOC refused these charges as failing to state a claim. (Plaintiffs' Easter Answer Brief Ex. 3).

Discussion

This Court has jurisdiction to rule on this matter pursuant to 28 U.S.C. § 1331 as the Plaintiffs' present claims arise under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621 et seq., the Employee Retirement Security Act ("ERISA"), 29 U.S.C. § 1132, and the Equal Opportunity for Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12101 et seq..

I. Treatment of Present Motions

Although the Defendants filed the motions presently under consideration as motions to dismiss pursuant to Federal Rule of Civil Procedure 12, the Court will consider the motions as motions for summary judgment brought under Federal Rule of Civil Procedure 56.

When a party files a motion to dismiss pursuant to Rule 12(b)(6), the court may be presented with matters outside the pleadings to support such a motion. When this occurs, however, Rule 12(b) directs that if those matters are not excluded "the motion shall be treated as as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56." Fed. R.Civ.P. 12(b). Fleischfresser v. Directors of School District 200, 15 F.3d 680, 684-85 (7th Cir.1994); Beam v. IPCO Corp., 838 F.2d 242, 244 (7th Cir.1988). The Court must give the nonmovant notice of its intent to convert the motion, and a dismissal without notice to the parties of conversion, or alternatively, failure to exclude material outside of the pleadings in the decision-making process, may constitute reversible error. Matter of Wade, 969 F.2d 241, 249 (7th Cir.1992).

In the present matter, all parties have presented evidence outside the pleadings in support of their positions, and the nonmovant Plaintiffs specifically argue that the Defendants motions should be treated as motions for summary judgment. As a result, the Court will treat the motions as having been brought pursuant to Federal Rule of Civil Procedure 56.

II. Summary Judgment Standard

Under Federal Rule of Civil Procedure 56, a party is entitled to summary judgment if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled...