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Maher v. Texas Roadhouse Management Corp.

United States District Court, W.D. Wisconsin

June 30, 2017

JACK L. MAHER, Plaintiff,



         In 2013 and 2014, plaintiff Jack L. Maher and defendant David A. Hess, an employee of defendant Texas Roadhouse Management Corp., had discussions about Maher coming to work for Texas Roadhouse. Eventually, Maher resigned from his then-employer and began working for Texas Roadhouse, although not in the position he desired. In this lawsuit, plaintiff brings claims under the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621, et seq., as well as common law breach of contract, promissory estoppel and fraud, alleging that defendants (1) intentionally misled him about the position he would fill, (2) failed to fulfill their promises regarding his opportunity to obtain that position, and (3) denied him that position because of his age. Before the court is defendants' motion seeking summary judgment on all of plaintiff's claims. (Dkt. #20.) Because the court finds that plaintiff has failed to put forth sufficient evidence from which a reasonable juror could find in his favor on the ADEA or common law claims, the court will grant defendants' motion for summary judgment in its entirety and enter judgment in their favor.


         A. Texas Roadhouse Overview

         Defendant Texas Roadhouse Management Corp. is a subsidiary of Texas Roadhouse Inc., which owns and operates restaurants throughout the United States. The named defendant is the direct employer of all workers at the Texas Roadhouse restaurants. For ease of reference, therefore, the court will simply refer to defendant as “Texas Roadhouse.”

         Each Texas Roadhouse restaurant has a “managing partner, ” who is tasked with overseeing general restaurant operations, including supervising kitchen managers, service managers and hourly employees. Each managing partner has an ownership interest in his or her restaurant and is required to make a financial investment. Managing partners report to “market partners, ” who are responsible for supervising several restaurants. Market partners, in turn, report to one of three “regional partners, ” each being responsible for approximately a third of the Texas Roadhouse markets in the United States.

         Defendant David Hess began working for Texas Roadhouse in 1998. His date of birth is February 16, 1972, making him 45 years old today and between 41 to 44 years old during the relevant events to this lawsuit. In 2006, he was transferred to serve as the managing partner of the Texas Roadhouse restaurant in Waukesha, Wisconsin; and in November of 2013, he became the managing partner of the Texas Roadhouse on the east side of Madison, Wisconsin. Hess also served as “interim” market partner for a group of restaurants, including the Waukesha and Madison restaurants between October of 2013 and approximately January 23, 2014.

         An external candidate hired to be a permanent market partner is first hired as a “manager in training, ” who spends approximately four months at a designated Texas Roadhouse training restaurant. During the approximately four months that Hess acted as interim market manager, Rob LaPointe was completing training to take over that market partner position. At all times relevant to this lawsuit, Rick Kaskel was the regional partner for a market area that included the Wisconsin restaurants.

         B. Plaintiff's Background and Interview Process

         Plaintiff Jack Maher's date of birth is September 27, 1967, making him 49 years old today, and between 46 and 47 years old during the events material to this lawsuit. By the time he began his employment with Texas Roadhouse, Maher had more than twenty-five years of experience managing restaurants. Most recently before Texas Roadhouse, he was a General Manager for a Red Robin restaurant earning $85, 000 per year. In or around November of 2013, Maher's two sisters-in-law who worked at the Madison Texas Roadhouse restaurant told defendant Hess that Maher was interested in working for Texas Roadhouse. At that time, Maher was residing in Sun Prairie, Wisconsin, a suburb of Madison.

         Hess contacted Maher to discuss working for Texas Roadhouse, and the two met in person on November 11, 2013. As part of his responsibilities as interim market partner, Hess was involved in the process to fill an open managing partner position at the restaurant in Waukesha, but he did not have the authority to actually hire the managing partner. The parties dispute whether Hess nevertheless told Maher that he did. (Defs.' Reply to Defs.' PFOFs (dkt. #36) ¶¶ 26-27.) At their November 11 meeting, Hess discussed “general information” about the company and the position, while Maher discussed his employment background.

         In that initial conversation, Hess told Maher that there was a possibility of a managing partner position opening in Madison at some point in the future, either if Hess were promoted to a market partner position or if Texas Roadhouse opened another location. Hess did not, however, provide Maher with a time-frame for when a managing partner position might become available in Madison. Moreover, the parties agree that Hess made no offer of employment.

         On November 15, 2013, Maher, who lived in Sun Prairie at the time, notified Hess by text message that he was not interested in the Waukesha position because “[w]ith the travel costs [he] would be taking a pay cut, ” but that he was “very interested” in positions that may be available in Madison. (Defs.' Reply to Defs.' PFOFs (dkt. #36) ¶ 30.) Hess responded by text message that he was not aware of any opportunities in Madison, but that he would contact Maher “when Madison bec[ame] an option.” (Id. at ¶ 31.)

         On December 6, 2013, Maher received a job offer from Doolittle's Woodfire Grill restaurant in Madison. However, Maher reports that he turned down the position because he “preferred” the Texas Roadhouse managing partner position, which he understood was available to him. (Defs.' Resp. to Pl.'s Add'l PFOFs (dkt. #37) ¶ 136.)

         The next day, on December 7, Maher sent a follow up text to Hess, “rethinking” his stance on the Waukesha position and hoping to “talk again soon.” (Defs.' Reply to Defs.' PFOFs (dkt. #36) ¶ 32.) In response to Maher's message, Hess indicated that they “would need to hurry” since the “position [was] almost taken.” (Defs.' Resp. to Pl.'s Add'l PFOFs (dkt. #37) ¶ 137.) The two met at the Madison restaurant on December 10, 2013. This time, their discussion of the Waukesha managing partner position included Texas Roadhouse's requirement that managing partners must (1) make “an initial investment of $25, 000 in their restaurant” and (2) sign an employment contract after they complete training. (Defs.' Reply to Defs.' PFOFs (dkt. #36) ¶ 33.)

         While the parties again agree that Hess still did not offer Maher the position during that meeting, Hess did follow up afterward with Nicole Green, who worked in Texas Roadhouse's legal department, to begin the formal application process for Maher. Green then sent Maher an email with forms, including an employment application on December 20, 2013, which he completed that same day. For a reason Hess apparently did not explain, he told Maher to indicate that Maher was applying for a kitchen manager position, even though he was actually applying to be a managing partner.

         Green interviewed Maher by telephone on December 23, 2013, including administering a personality test. Although they exchanged some communications by phone and text message after their meeting on December 10, [2] Hess and Maher did not meet again in-person until January 13, 2014. By the time of that meeting, Rob LaPointe, who was soon to become the permanent market partner, was present. The parties agree that “one of the primary purposes of this meeting was for Maher to meet LaPointe.” (Defs.' Reply to Defs.' PFOFs (dkt. #36) ¶ 37.)[3]

         At this January 13 meeting, the discussion regarding the Waukesha position included salary expectations and Maher's possible commute from Sun Prairie to the restaurant in Waukesha, which would take approximately an hour. The expected salary for a Texas Roadhouse managing partner position, inclusive of bonuses, was approximately $100, 000. Defendants once again assert that Hess made no formal offer to Maher for the Waukesha position during the meeting. Consistent with defendants' characterization of the events, Maher testified at his deposition that he could “not recall” whether he had been formally offered the position at the meeting and that his application “was an ongoing process.” (Id. at ¶ 39 (citing Maher Depo. (dkt. #26) 26:3-14).)

         While Maher testified at his deposition that Hess also “told him” that he was offering him the Waukesha position “around the time” of the meeting on January 13, 2014. (Maher Depo. (dkt. #26) 31), Maher could not remember at his deposition what Hess said specifically. Generally, Maher testified that: “[Hess] told me that the managing partner position in Waukesha was open. He told me what it paid. And that was about it.” (Id.) Maher further testified that: (1) the offer “was [made] through phone and text” in “either December of 2013 or January of 2014”; (2) Maher initially responded that he needed to ask his wife about the commute; and (3) then “right around January 14th, ” perhaps after the meeting, Maher told Hess during discussions held over phone and text, but not in person, that he “was a go for that position, ” although he could not remember how Hess responded. (Id. at 32:14-33:21.)

         In any event, on January 13, “several hours” after the meeting, soon-to-be marketing partner LaPointe called Hess and told him that Rick Kaskel, regional partner, “had decided” that Maher would need to move to Waukesha before he could be hired for the managing partner position. (Pl.'s Resp. to Defs.' PFOF (dkt. #29) ¶ 41.) Hess opined that Kaskel imposed this requirement out of the belief that managing partners who lived in the same community as their restaurant could more easily attract guests there.[4] After receiving this call from LaPointe, Hess texted Maher that same day, at 6:31 p.m., warning “[w]e have a snag, please don't give your notice, ” and stating that he would call to further explain soon after. (Id. at ¶ 43; Maher Depo., Ex. 9 (dkt. #26-6) ECF 7.)

         The parties do not dispute that Hess did call Maher shortly after sending that text, and they “discussed the issue of moving” during the call, but while defendants assert Hess told Maher he would need to move before he could be hired for the Waukesha position, plaintiff insists that Hess merely said that he would need to move at some point while he was managing partner. (Pl.'s Resp. to Defs.' PFOF (dkt. #29) ¶ 44.)[5]

         The next morning, January 14, Maher sent Hess a text asking two questions: (1) “If I decided on Waukesha I would train with you for four months correct?”; and (2) “Also, would there be an understanding that I would go to Madison either when you are promoted or a west side location opens?” (Defs.' Resp. to Pl.'s Add'l PFOFs (dkt. #37) ¶ 148.) In a text response, Hess indicated that Janesville would be the most likely location for training and stated, “Yes . . . ‘the understanding' is our wild card option.” (Id.) In that same text message, Hess also wrote: “We want [you] with us”; “holding you in Waukesha is our best move to get you on quickly and support your salary needs”; and “We'd love you as an addition.” (Id. at 150.) At his deposition, Hess explained that by using “we” in his message, he was referring to himself and LaPointe, who told Hess that Maher would be a “good candidate.” (Hess Depo. (dkt. #31) 47:11-48:8.) In response to that text, Maher asked Hess how quickly he needed an answer regarding the “option, ” to which Hess replied that it would be best for him to do so soon, but that he should take enough time to be comfortable and have a discussion with his family. (Defs.' Resp. to Pl.'s Add'l PFOFs (dkt. #37) ¶ 152.)

         In other text message exchanges between the two on the 14th, Maher considered buying a car instead of his truck, so that travel would be less expensive. Hess responded that it was sometimes “tough” for him to travel an hour to Madison, and he offered that Texas Roadhouse could “do a small allowance to help” for gasoline costs. (Id. at ¶ 153.) In a declaration, Maher avers that he was referring to the contemplated travel costs going from Sun Prairie to Waukesha and back, but testified at his deposition that the reference to “that drive” in the text message exchange with Hess concerned Maher driving back and forth for training -- in other words, the drive from Madison to Janesville and back for the four-month training period. (Maher Depo. (dkt. #26) 80-81.)[6]

         The next day, January 15, Hess texted Maher to tell him that LaPointe would call him the following day to answer any questions and “finalize up.” (Defs.' Resp. to Pl.'s Add'l PFOFs (dkt. #37) ¶ 154.) Hess also sent Maher an overview of Texas Roadhouse's health insurance. On the 16th, Maher notified Hess by text message that “someone leaked the info about [him] leaving [Red Robin] and [he] had to put in [his] notice.” (Pl.'s Resp. to Defs.' PFOF (dkt. #29) ¶ 48.) At his deposition, however, Maher testified that when his supervisor at Red Robin approached him about interviewing for other positions, he decided to “just put in [his] notice” because he “felt that [he] had the position at Texas Roadhouse for the managing partner position in Waukesha.” (Id. at ¶ 49 (citing Maher Depo. (dkt. #26) 84:1-9).) More specifically, Maher testified that he “felt” that he had a formal offer for the position based on his “conversations” with Hess and LaPointe, even though he did not have an offer letter and had not seen a written contract. (Id. at ¶ 51 (citing Maher Depo. (dkt. #26) 84:10-22).)

         On January 16, in response to Maher's message, Hess asked him when he wanted to “start.” (Defs.' Resp. to Pl.'s Add'l PFOFs (dkt. #37) ¶ 156.) The following day, January 17, Maher and Hess spoke over the telephone. During that conversation, Hess reiterated that commuting from Sun Prairie to Waukesha was not permissible, but he offered Maher a kitchen manager position at the Texas Roadhouse in Madison, which offered an annual salary of approximately $50, 000. Maher also sent Hess a text that day asking him whether he found the explanation of benefits for the insurance offered by Texas Roadhouse. Finally, Maher sent another text asking: “I sign the partner contract at the end of training correct?” and “[a]lso, once we are good to go can I get a copy of the partner contract[?]” (Id. at ¶ 158 (citing Maher Depo., Ex. 9 (dkt. #26-6) ECF 14).)

         Three days later, on January 20, 2014, Maher sent Hess a text stating, “I just wanted to know from you if Waukesha is 100 percent if I move. Or if I decide not to [do] that you 100 percent have a spot for me with manager pay.” (Pl.'s Resp. to Defs.' PFOF (dkt. #29) ¶ 56.) Maher clarified at his deposition that the latter option to which he referred was the Madison Texas Roadhouse position. (Id.) In response to Maher's text message, Hess told him to speak to LaPointe regarding any further details about the Waukesha managing partner position, since LaPointe was nearly done with his market partner training, but that Hess, as the managing partner of the Madison restaurant, could continue discussing the kitchen manager position with Maher. (Id. at ¶ 57.) Later that same day, Maher sent Hess two more text messages stating that he still needed to speak to his wife regarding moving and that LaPointe told him that “if [he] moved we were good.” (Id. at ¶ 58.) Plaintiff does not dispute that when he sent the January 20 text message, he understood that he had to move to Waukesha to be the managing partner there. (Id. at ¶ 59.) Indeed, a few days later, on January 23, Maher sent LaPointe an email asking what he needed to do “to pursue” the managing partner position in Waukesha. (Id. at ¶ 61.)

         Having not heard from Maher regarding whether he wanted to move to Waukesha for the managing partner position, Hess sent him an email the morning of January 28, 2014. In that email, Hess reiterated that the Waukesha position would not be available to him until he had already moved, but suggested that if he was still unsure about moving, Texas Roadhouse could hire him as an assistant manager for the Madison restaurant as soon as possible, and then the two could work together in Madison “until another option arises, ” although Hess admitted that he “did not know when or what the ‘other options' are.” (Pl.'s Resp. to Defs.' PFOFs (dkt. #29) ¶ 67.)

         Minutes later, Maher responded, indicating that he could start in the Madison kitchen manager position as early as February 10 and that a salary of $55, 000 would be sufficient. At his deposition, according to Maher, he had not decided definitively whether he would move to Waukesha by the time he responded to Hess's email, and he understood that the position would still be available to him as long as he moved before completing his kitchen manager training. (Id. at ¶ 69.) The parties also agree that Hess never told Maher that he was “guaranteed” the Madison managing partner position in the event that it became available while he was kitchen manager. (Id. at ΒΆ 73.) While Maher contends Hess never told him that any future promotion would ...

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