Case 1:11-cv-11732-DJC Document 1

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UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS ____________________________________ EQUAL EMPLOYMENT ) OPPORTUNITY COMMISSION, ) ) Civil Action No. 1:11-cv-11732 Plaintiff, ) ) v. ) COMPLAINT ) TEXAS ROADHOUSE, INC., TEXAS ) JURY TRIAL DEMAND ROADHOUSE HOLDINGS LLC, TEXAS ) ROADHOUSE MANAGEMENT CORP., ) ) Defendants. ) ____________________________________)

NATURE OF THE ACTION This is an action under the Age Discrimination in Employment Act to correct unlawful employment practices on the basis of age and to provide appropriate relief to a class of unidentified individuals who were denied employment by Defendants because of their age. As alleged with greater particularity in paragraphs 8(a) through (d) below, statistical, documentary and anecdotal evidence will establish that, nation-wide, Defendants failed to hire employees within the protected age group in violation of the ADEA. As a result of this discriminatory treatment, these unidentified employees have suffered lost wages. JURISDICTION AND VENUE 1. Jurisdiction of this Court is invoked pursuant to 28 U.S.C. 451, 1331, 1337,

1343 and 1345. This action is also authorized and instituted pursuant to Section 7(b) of the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. 626(b)(the ADEA), which incorporates by reference Sections 16(c) and 17 of the Fair Labor Standards Act of 1938 (the FLSA), as amended, 29 U.S.C. 216(c) and 217.

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2.

The employment practices alleged to be unlawful were committed within the

jurisdiction of the United States District Court for the District of Massachusetts, pursuant to 28 U.S.C. 1391(b). PARTIES 3. Plaintiff, the Equal Employment Opportunity Commission (the Commission), is

the agency of the United States of America charged with the administration, interpretation and enforcement of the ADEA and is expressly authorized to bring this action by Section 7(b) of the ADEA, 29 U.S.C. 626(b), as amended by Section 2 of Reorganization Plan No. 1 of 1978, 92 Stat. 3781, and by Public Law 98-532 (1984), 98 Stat. 2705. 4. At all relevant times, Defendant Texas Roadhouse, Inc., and its wholly-owned

subsidiaries Defendants Texas Roadhouse Holdings LLC and Texas Roadhouse Management Corp., have continuously been corporations doing business in the Commonwealth of Massachusetts and locations throughout the United States, and have each continuously had at least 15 employees. 5. At all relevant times, Defendants have continuously been employers engaged in

an industry affecting commerce within the meaning of Sections 11(b), (g) and (h) of the ADEA, 29 U.S.C. 630(b), (g) and (h). CONCILIATION 6. Prior to institution of this lawsuit, the Commissions representatives attempted to

eliminate the unlawful employment practices alleged below and to effect voluntary compliance with the ADEA through informal methods of conciliation, conference and persuasion within the meaning of Section 7(b) of the ADEA, 29 U.S.C. 626(d).

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STATEMENT OF CLAIMS 7. More than thirty days prior to the institution of this lawsuit, the Director of the

Boston Area Office of the EEOC initiated an investigation, alleging violations of the ADEA by Defendants. All conditions precedent to the institution of this lawsuit have been fulfilled. 8. Since at least January 1, 2007, Defendants have engaged in unlawful employment

practices at their facilities nationwide in violation of Section 4 of the ADEA, 29 U.S.C. 623(a). These unlawful practices include, but are not limited to, the following: (a) Since at least January 1, 2007, Defendants have subjected a class of aggrieved

applicants for front of the house and other publicly visible positions to an ongoing pattern or practice of discriminatory failure to hire such persons because of their age, 40 years and older (hereafter the protected age group). (b) Approximately only 1.9% of Defendants front of the house employees is in the

protected age group. This figure is well below the protected age groups representation in the general population of Defendants locations, well below the protected age groups representation in Bureau of Labor Statistics data for such positions within the industry, and well below the protected age groups representation in the pool of applicants for positions with Defendants. These disparities are statistically significant. (c) Since at least January 1, 2007, Defendants, either directly or implicitly, have

instructed their managers to hire job applicants not in the protected age group. For example, one powerpoint used for the purpose of training managers regarding hiring starts with a slide that states Step 1: Know what [a front of the house employee] looks like, and then the next slide answers with a group picture of young people shouting and making gestures. In addition, all of

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the images of employees in Defendants training and employment manuals are of young individuals. (d) Defendants hiring officials have told older unsuccessful applicants that there are

younger people here who can grow with the company; you seem older to be applying for this job and do you think you would fit in?; the restaurant was a younger set environment; we are looking for people on the younger side... but you have a lot of experience; How do you feel about working with younger people?; we think you are a little too old to work here we like younger people; were hiring for greeters but we need the young, hot ones who are chipper and stuff; our age group is in their young 20s, college students; Im basically looking for young teenagers; and we really go with a younger crowd and have a younger establishment. 9. The effect of the practices complained of in paragraphs 8(a) through (d) above has

been to deprive a class of potential employees in the protected age group of equal employment opportunities and otherwise to affect adversely their status as applicants or potential employees, because of their age. 10. The unlawful employment practices complained of in paragraphs 8(a) through (d)

above were willful within the meaning of Section 7(b) of the ADEA, 29 U.S.C. 626(b). PRAYER FOR RELIEF Wherefore, the Commission respectfully requests that this Court: A. Grant a permanent injunction enjoining Defendants, their officers, agents,

servants, employees, attorneys, and all persons in active concert or participation with them, from engaging in any employment practice which discriminates on the basis of age.

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B.

Order Defendants to institute and carry out policies, practices and programs which

provide equal employment opportunities for individuals 40 years of age and older, and which eradicate the effects of their past and present unlawful employment practices. C. Grant a judgment requiring Defendants to pay appropriate back wages in an

amount to be determined at trial, an equal sum as liquidated damages, and prejudgment interest to individuals whose wages are being unlawfully withheld as a result of the acts complained of above, including but not limited to, individuals aged 40 years of age and older that were not hired because of their age. D. Order Defendants to make whole all individuals adversely affected by the

unlawful practices described above, by providing the affirmative relief necessary to eradicate the effects of their unlawful practices, including but not limited to instatement, reinstatement, provide front pay in lieu of reinstatement, or otherwise make whole individuals denied employment because of their age. E. Order Defendants to advertise, at their expense, to identify presently unidentified

protected age group applicants. F. Order Defendants to provide training for supervisors and managers at all

corporate levels, specific to the ADEA. G. interest. H. Award the Commission its costs of this action. Grant such further relief as the Court deems necessary and proper in the public

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JURY TRIAL DEMAND The Commission requests a jury trial on all questions of fact raised by its complaint. Dated: September 30, 2011 Boston, Massachusetts Respectfully submitted, P. David Lopez General Counsel James L. Lee Deputy General Counsel Gwendolyn Y. Reams Associate General Counsel EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 131 M Street, N.E. 4th Floor, Room 5SW30B Washington, D.C. 20507-0100 /s/Elizabeth Grossman________________ Elizabeth Grossman Regional Attorney Elizabeth.Grossman@eeoc.gov /s/Robert D. Rose________________ Robert D. Rose Supervisory Trial Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION New York District Office 33 Whitehall St., 5th Floor New York, NY 10004-2112 Robert.Rose@eeoc.gov /s/Markus L. Penzel__________________ Markus L. Penzel Senior Trial Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Boston Area Office John F. Kennedy Federal Building, Room 475 Boston, MA 02203-0506 (617) 565-3193 Markus.Penzel@eeoc.gov

2JS 44 (Rev. 12/07)

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Filed CIVIL COVER SHEET 09/30/11 Page 1 of 3

The JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. (SEE INSTRUCTIONS ON THE REVERSE OF THE FORM.)

I. (a) PLAINTIFFS Equal Employment Opportunity Commission (b) County of Residence of First Listed Plaintiff
(EXCEPT IN U.S. PLAINTIFF CASES)

DEFENDANTS

Texas Roadhouse, Inc., Texas Roadhouse Holdings LLC, and Texas Roadhouse Management Corp. Plymouth County of Residence of First Listed Defendant
(IN U.S. PLAINTIFF CASES ONLY) NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF THE LAND INVOLVED.

(c) Attorneys (Firm Name, Address, and Telephone Number)

Attorneys (If Known)

See attachment
II. BASIS OF JURISDICTION
u 1
U.S. Government Plaintiff (Place an X in One Box Only)

Jeffrey H. Lerer: Foley Hoag LLP,Seaport West, 155 Seaport Boulevard, Boston, MA 02210 III. CITIZENSHIP OF PRINCIPAL PARTIES(Place an X in One Box for Plaintiff
(For Diversity Cases Only) PTF u 1 Citizen of This State Citizen of Another State DEF u 1 and One Box for Defendant) PTF DEF Incorporated or Principal Place u 4 u 4 of Business In This State Incorporated and Principal Place of Business In Another State Foreign Nation

u 3 Federal Question (U.S. Government Not a Party) u 4 Diversity

(Indicate Citizenship of Parties in Item III)

u 2

U.S. Government Defendant

u 2 u 3

u u

u 5 u 6

u 5 u 6

Citizen or Subject of a Foreign Country

IV. NATURE OF SUIT

CONTRACT

(Place an X in One Box Only) TORTS PERSONAL INJURY 310 Airplane 315 Airplane Product Liability 320 Assault, Libel & Slander 330 Federal Employers Liability 340 Marine 345 Marine Product Liability 350 Motor Vehicle 355 Motor Vehicle Product Liability 360 Other Personal Injury CIVIL RIGHTS 441 Voting 442 Employment 443 Housing/ Accommodations 444 Welfare 445 Amer. w/Disabilities Employment 446 Amer. w/Disabilities Other 440 Other Civil Rights PERSONAL INJURY u 362 Personal Injury Med. Malpractice u 365 Personal Injury Product Liability u 368 Asbestos Personal Injury Product Liability PERSONAL PROPERTY u 370 Other Fraud u 371 Truth in Lending u 380 Other Personal Property Damage u 385 Property Damage Product Liability PRISONER PETITIONS u 510 Motions to Vacate Sentence Habeas Corpus: u 530 General u 535 Death Penalty u 540 Mandamus & Other u 550 Civil Rights u 555 Prison Condition

FORFEITURE/PENALTY

BANKRUPTCY

OTHER STATUTES

u u u u u u u u u u u u u u u u u u

110 Insurance 120 Marine 130 Miller Act 140 Negotiable Instrument 150 Recovery of Overpayment & Enforcement of Judgment 151 Medicare Act 152 Recovery of Defaulted Student Loans (Excl. Veterans) 153 Recovery of Overpayment of Veterans Benefits 160 Stockholders Suits 190 Other Contract 195 Contract Product Liability 196 Franchise REAL PROPERTY 210 Land Condemnation 220 Foreclosure 230 Rent Lease & Ejectment 240 Torts to Land 245 Tort Product Liability 290 All Other Real Property

u u u u u u u u u u u u u u u u

u 610 Agriculture u 620 Other Food & Drug u 625 Drug Related Seizure of Property 21 USC 881 u 630 Liquor Laws u 640 R.R. & Truck u 650 Airline Regs. u 660 Occupational Safety/Health u 690 Other LABOR u 710 Fair Labor Standards Act u 720 Labor/Mgmt. Relations u 730 Labor/Mgmt.Reporting & Disclosure Act u 740 Railway Labor Act u 790 Other Labor Litigation u 791 Empl. Ret. Inc. Security Act
IMMIGRATION u 462 Naturalization Application u 463 Habeas Corpus Alien Detainee u 465 Other Immigration Actions

u 422 Appeal 28 USC 158 u 423 Withdrawal 28 USC 157

PROPERTY RIGHTS u 820 Copyrights u 830 Patent u 840 Trademark

u u u u u u u u u u u u u u u u u u u

SOCIAL SECURITY 861 HIA (1395ff) 862 Black Lung (923) 863 DIWC/DIWW (405(g)) 864 SSID Title XVI 865 RSI (405(g)) FEDERAL TAX SUITS u 870 Taxes (U.S. Plaintiff or Defendant) u 871 IRSThird Party 26 USC 7609

u u u u u

400 State Reapportionment 410 Antitrust 430 Banks and Banking 450 Commerce 460 Deportation 470 Racketeer Influenced and Corrupt Organizations 480 Consumer Credit 490 Cable/Sat TV 810 Selective Service 850 Securities/Commodities/ Exchange 875 Customer Challenge 12 USC 3410 890 Other Statutory Actions 891 Agricultural Acts 892 Economic Stabilization Act 893 Environmental Matters 894 Energy Allocation Act 895 Freedom of Information Act 900Appeal of Fee Determination Under Equal Access to Justice 950 Constitutionality of State Statutes

V. ORIGIN

u 1 Original Proceeding

u 2 Removed from
State Court

(Place an X in One Box Only)

Appeal to District Appellate Court

u 3 Remanded from

u 4 Reinstated or u 5 Transferred from u 6 Multidistrict another district Reopened Litigation (specify)

u 7 Judge from Magistrate

Judgment

Age Discrimination in Employment Act of 1967, as amended VI. CAUSE OF ACTION Brief description of cause: Pattern or Practice of Age Discrimination in hiring CHECK YES only if demanded in complaint: DEMAND $ u CHECK IF THIS IS A CLASS ACTION VII. REQUESTED IN UNDER F.R.C.P. 23 Yes u u No JURY DEMAND: COMPLAINT: VIII. RELATED CASE(S) (See instructions): JUDGE DOCKET NUMBER IF ANY
DATE SIGNATURE OF ATTORNEY OF RECORD

Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity):

09/30/2011
FOR OFFICE USE ONLY RECEIPT # AMOUNT

/s/Markus L. Penzel

APPLYING IFP

JUDGE

MAG. JUDGE

JS 44 Reverse (Rev. 12/07)

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INSTRUCTIONS FOR ATTORNEYS COMPLETING CIVIL COVER SHEET FORM JS 44

Authority For Civil Cover Sheet
The JS 44 civil cover sheet and the information contained herein neither replaces nor supplements the filings and service of pleading or other papers as required by law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. Consequently, a civil cover sheet is submitted to the Clerk of Court for each civil complaint filed. The attorney filing a case should complete the form as follows: I. (a) Plaintiffs-Defendants. Enter names (last, first, middle initial) of plaintiff and defendant. If the plaintiff or defendant is a government agency, use only the full name or standard abbreviations. If the plaintiff or defendant is an official within a government agency, identify first the agency and then the official, giving both name and title. (b) County of Residence. For each civil case filed, except U.S. plaintiff cases, enter the name of the county where the first listed plaintiff resides at the time of filing. In U.S. plaintiff cases, enter the name of the county in which the first listed defendant resides at the time of filing. (NOTE: In land condemnation cases, the county of residence of the defendant is the location of the tract of land involved.) (c) Attorneys. Enter the firm name, address, telephone number, and attorney of record. If there are several attorneys, list them on an attachment, noting in this section (see attachment). II. Jurisdiction. The basis of jurisdiction is set forth under Rule 8(a), F.R.C.P., which requires that jurisdictions be shown in pleadings. Place an X in one of the boxes. If there is more than one basis of jurisdiction, precedence is given in the order shown below. United States plaintiff. (1) Jurisdiction based on 28 U.S.C. 1345 and 1348. Suits by agencies and officers of the United States are included here. United States defendant. (2) When the plaintiff is suing the United States, its officers or agencies, place an X in this box. Federal question. (3) This refers to suits under 28 U.S.C. 1331, where jurisdiction arises under the Constitution of the United States, an amendment to the Constitution, an act of Congress or a treaty of the United States. In cases where the U.S. is a party, the U.S. plaintiff or defendant code takes precedence, and box 1 or 2 should be marked. Diversity of citizenship. (4) This refers to suits under 28 U.S.C. 1332, where parties are citizens of different states. When Box 4 is checked, the citizenship of the different parties must be checked. (See Section III below; federal question actions take precedence over diversity cases.) III. Residence (citizenship) of Principal Parties. This section of the JS 44 is to be completed if diversity of citizenship was indicated above. Mark this section for each principal party. IV. Nature of Suit. Place an X in the appropriate box. If the nature of suit cannot be determined, be sure the cause of action, in Section VI below, is sufficient to enable the deputy clerk or the statistical clerks in the Administrative Office to determine the nature of suit. If the cause fits more than one nature of suit, select the most definitive. V. Origin. Place an X in one of the seven boxes. Original Proceedings. (1) Cases which originate in the United States district courts. Removed from State Court. (2) Proceedings initiated in state courts may be removed to the district courts under Title 28 U.S.C., Section 1441. When the petition for removal is granted, check this box. Remanded from Appellate Court. (3) Check this box for cases remanded to the district court for further action. Use the date of remand as the filing date. Reinstated or Reopened. (4) Check this box for cases reinstated or reopened in the district court. Use the reopening date as the filing date. Transferred from Another District. (5) For cases transferred under Title 28 U.S.C. Section 1404(a). Do not use this for within district transfers or multidistrict litigation transfers. Multidistrict Litigation. (6) Check this box when a multidistrict case is transferred into the district under authority of Title 28 U.S.C. Section 1407. When this box is checked, do not check (5) above. Appeal to District Judge from Magistrate Judgment. (7) Check this box for an appeal from a magistrate judges decision. VI. Cause of Action. Report the civil statute directly related to the cause of action and give a brief description of the cause. Do not cite jurisdictional statutes unless diversity. Example: U.S. Civil Statute: 47 USC 553 Brief Description: Unauthorized reception of cable service VII. Requested in Complaint. Class Action. Place an X in this box if you are filing a class action under Rule 23, F.R.Cv.P. Demand. In this space enter the dollar amount (in thousands of dollars) being demanded or indicate other demand such as a preliminary injunction. Jury Demand. Check the appropriate box to indicate whether or not a jury is being demanded. VIII. Related Cases. This section of the JS 44 is used to reference related pending cases if any. If there are related pending cases, insert the docket numbers and the corresponding judge names for such cases. Date and Attorney Signature. Date and sign the civil cover sheet.

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Attachment to Civil Cover Sheet Counsel for EEOC: P. David Lopez, General Counsel James L. Lee, Deputy General Counsel Gwendolyn Y. Reams, Associate General Counsel EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 131 M Street, N.E. 4th Floor, Room 5SW30B Washington, D.C. 20507-0100 Elizabeth Grossman Regional Attorney elizabeth.grossman@eeoc.gov Robert D. Rose Supervisory Trial Attorney robert.rose@eeoc.gov EQUAL EMPLOYMENT OPPORTUNITY COMMISSION New York District Office 33 Whitehall Street, 5th Floor New York, NY 10004-2112 (212) 336-3696 Lead Counsel Markus L. Penzel Senior Trial Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Boston Area Office John F. Kennedy Federal Building, Room 475 Boston, MA 02203-0506 (617) 565-3193 markus.penzel@eeoc.gov

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UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

1. Title of case (name of first party on each side only)

Equal Employment Opportunity Commission v. Texas Roadhouse,

Inc.
2. Category in which the case belongs based upon the numbered nature of suit code listed on the civil cover sheet. (See local rule 40.1(a)(1)). I. 410, 441, 470, 535, 830*, 891, 893, 894, 895, R.23, REGARDLESS OF NATURE OF SUIT. 110, 130, 140, 160, 190, 196, 230, 240, 290,320,362, 370, 371, 380, 430, 440, 442-446, 710, 720, 730, 740, 790, 820*, 840*, 850, 870, 871. 120, 150, 151, 152, 153, 195, 210, 220, 245, 310, 315, 330, 340, 345, 350, 355, 360, 365, 368, 385, 400, 422, 423, 450, 460, 462, 463, 465, 480, 490, 510, 530, 540, 550, 555, 610, 620, 625, 630, 640, 650, 660, 690, 791, 810, 861865, 875, 890, 892, 900, 950. *Also complete AO 120 or AO 121. for patent, trademark or copyright cases.

II.

III.

3. Title and number, if any, of related cases. (See local rule 40.1(g)). If more than one prior related case has been filed in this district please indicate the title and number of the first filed case in this court.

4. Has a prior action between the same parties and based on the same claim ever been filed in this court? YES

NO


(See 28 USC

5. Does the complaint in this case question the constitutionality of an act of congress affecting the public interest? 2403) YES If so, is the U.S.A. or an officer, agent or employee of the U.S. a party? YES

 

NO

 

NO

6. Is this case required to be heard and determined by a district court of three judges pursuant to title 28 USC 2284? YES

NO

 

7. Do all of the parties in this action, excluding governmental agencies of the united states and the Commonwealth of Massachusetts (governmental agencies), residing in Massachusetts reside in the same division? - (See Local Rule 40.1(d)). YES A.

NO

If yes, in which division do all of the non-governmental parties reside? Eastern Division

 

Central Division

 

Western Division

 

B.

If no, in which division do the majority of the plaintiffs or the only parties, excluding governmental agencies, residing in Massachusetts reside? Eastern Division Central Division Western Division

8. If filing a Notice of Removal - are there any motions pending in the state court requiring the attention of this Court? (If yes, submit a separate sheet identifying the motions) YES (PLEASE TYPE OR PRINT) ATTORNEY'S NAME ADDRESS

NO

Markus L. Penzel

EEOC, JFK Federal Bldg., Room 475, Boston, MA 02203 TELEPHONE NO. 617-565-3193
(CategoryForm4-4-11.wpd - 4/4/11)