IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

NORTHERN DIVISION

EQUAL EMPLOYMENT :

OPPORTUNITY COMMISSION,

Plaintiff, :

vs. : CA 09-0643-C

WINN-DIXIE, INC., :

Defendant. :

ORDER

This action is before the Court on Plaintiff Equal Employment Opportunity

Commission (“EEOC”)’s Motion for Leave to Amend Complaint (Doc. 15), filed April

26, 2010, and Defendant Winn-Dixie’s response (Doc. 19) thereto, filed May 3, 2010,

containing arguments that this court will construe as a motion to dismiss. For the reasons

that follow, the EEOC’s motion to amend is hereby GRANTED.

This action comes before the undersigned as an age discrimination case in which

Plaintiff EEOC avers that Defendant Winn-Dixie committed legally-sanctionable

discrimination against a Mr. Clyde Bradberry, who was passed over for the position of

Store Manager at a Winn-Dixie supermarket in Selma, Alabama. (Doc. 1, Complaint, p.

1.) Instead of hiring Mr. Bradberry, who was 50 years old at the time, the company hired

an applicant of 24 years of age who was, allegedly, less qualified for the position than Mr.

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Bradberry. (Id. at 3.) Adding a slight wrinkle to the situation, however, is the fact that

the younger applicant applied after an announced deadline, after the company had

already offered the position to Mr. Bradberry. (Id.)

The EEOC, on behalf of Mr. Bradberry, filed suit on September 29, 2009, seeking

a permanent injunction against Winn-Dixie “from engaging in unlawful employment

practices on the basis of age,” an award of “back pay wages” combined with liquidated

damages of an equal sum, and the “affirmative relief necessary” to “make whole Clyde

Bradberry,” including “rightful place promotion.” (Id. at 4.) Winn-Dixie answered (Doc.

5) the complaint on December 2, 2009, asserting that Winn-Dixie Montgomery, LLC, and

not Winn-Dixie Stores, Inc., was the proper defendant in this action. (Doc. 5, p. 1.) After

the undersigned entered a Rule 16(b) scheduling order (Doc. 10) on January 27, 2010,

giving the EEOC until April 30, 2010 to amend their pleadings and to join other parties,

Plaintiff EEOC filed its Motion for Leave to Amend Complaint (Doc. 15) along with a

supporting brief (Doc. 16) on April 26, 2010. In its motion to amend, Plaintiff EEOC

seeks to add Winn-Dixie Montgomery, LLC, as a defendant to the current suit. (Doc. 16,

p. 4.) 

Defendant filed its reponse (Doc. 19) to the motion to amend on May 3, 2010,

contending that the Court should deny it because (1) this Court lacks personal jurisdiction

over Winn-Dixie, Inc., and (2) Winn-Dixie, Inc. has never been Mr. Bradberry’s

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employer. (Doc. 19, pp. 4-5.) Specifically, Winn-Dixie believes that “the only proper

amendment to the Complaint is the substitution of Winn-Dixie Montgomery, LLC for

Winn-Dixie Stores, Inc.” (Id. at 1.) Because Defendant Winn-Dixie Montgomery, LLC,

agrees with the EEOC that it belongs in the suit, Plaintiff’s Motion is hereby GRANTED. 

As such, Winn-Dixie Montgomery, LLC, is now a named defendant in this action and is

to be served with the Amended Complaint. 

The replacement of Winn-Dixie, Inc., with Winn-Dixie Montgomery, LLC,

however, is outside the parameters of what the EEOC requests in its motion, and would

therefore be an improper disposition of EEOC’s motion. As a result, the undersigned will

construe Winn-Dixie Inc.’s argument as a motion to dismiss themselves from this suit. 

Plaintiff EEOC will have until June 10, 2010 to respond to the motion, and Winn-Dixie

will then have until June 17, 2010 to reply to any response thus presented.

DONE and ORDERED this the 28th day of May, 2010.

 s/WILLIAM E. CASSADY 

UNITED STATES MAGISTRATE JUDGE

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