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Houston v. Kirkland

United States District Court, D. Maryland, Southern Division

July 10, 2017

SHIRLEY KIRKLAND, et al., Defendants.



         In an earlier Memorandum Opinion, the Court granted, in part, and denied, in part. Defendants' Motion for Summary Judgment. ECF No. 7. ECF No. 19. Only Plaintiffs claim under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq. remains. Presently pending before the Court is Defendants" Renewed Motion for Summary Judgment. ECF No. 46. For the following reasons. Defendants* Renewed Motion for Summary Judgment is granted.

         I. BACKGROUND

         The facts of this case were fully set forth in the Court's December 7. 2016 Memorandum Opinion. ECF No. 19 at 1-8.[1] In short. Plaintiff Terry Houston, a then 66-year old female working as an administrative assistant for the Association of Classified Employees/American Federation of State. County, and Municipal Employees Local 2250 ("the Union") experienced a large pay cut in April 2012. which she alleges was a result of age discrimination, id. at 2-3. After briefing and argument on Defendants' Motion for Summary Judgment, the Court found that there were "genuine issues of material fact as to the existence of age discrimination, and Plaintiff had put forth enough direct or circumstantial evidence to survive summary judgment on her ADEA claim." ECF No. 19 at 21. The matter was set for trial.

         Two weeks prior to trial. Defendants filed a Motion to Dismiss for Lack of Subject Matter Jurisdiction, contending, for the first time, that because Plaintiff cannot establish that the Union meets the definition of employer under the ADEA. the Court did not have subject matter jurisdiction. ECF No. 46. After Plaintiff was given an opportunity to file a response. ECF No. 52, a telephone conference was held on June 2. 2017. and the Court declined to dismiss the case for lack of subject matter jurisdiction, but converted Defendants" Motion into a Renewed Motion for Summary Judgment. See ECF No. 63.[2] The Court further directed the parties to submit any additional evidence relevant to the issues raised. The Court has now reviewed the record in its entirety, the additional submissions of the parties, and relevant authorities, and finds that Plaintiff is unable to establish an essential element of her claim under the ADEA. namely that her employer, the Union, had the requisite twenty employees. Therefore, summary judgment is granted in favor of Defendants.


         The court "shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). A material fact is one that "might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby. Inc.. 477 U.S. 242. 248 (1986). A genuine issue over a material fact exists "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." id. In undertaking this inquiry, the Court must consider the facts and all reasonable inferences in the light most favorable to the nonmoving party. Scott v. Harris. 550 U.S. 372. 378 (2007). But this Court must also abide by its affirmative obligation to prevent factually unsupported claims and defenses from going to trial. Drewitt v. Pratt, 999 F.2d 774. 778-79 (4th Cir. 1993).

         The burden is on the moving party to show "that there is no genuine issue as to any material fact. However, no genuine issue of material fact exists if the nonmoving party fails to make a sufficient showing on an essential element of his or her case as to which he or she would have the burden of proof." Benton v. Prince George's Cmty. Coll., No. CIV.A. DKC 12-1577. 2013 WL 4501324. at *3 (D. Md. Aug. 21, 2013) (citing Celotex Corp. v. Catrett. 477 U.S. 317. 322-23 (1986)). Thus, upon a motion for summary judgment, the opposing party "may not rest upon . . . mere allegations or denials." but rather, "must set forth specific facts showing that there is a genuine issue for trial. ..." Tyler v. Prince George's Cty., Maryland, 16 F. App" x 191, 192 (4th Cir. 2001) (citing Fed.R.Civ.P. 56(e)).

         III. ANALYSIS

         The ADFA prescribes that "[i]t shall be unlawful for an employer to . . . discriminate against any individual with respect to [her] compensation, terms, conditions, or privileges of employment, because of such individual's age . .." 29 U.S.C. § 623(a). The issue before the Court is whether the Defendant had a sufficient number of employees to be considered an employer under the ADEA. Under 29 U.S.C. § 630(b). "[t]he term 'employer' means a person engaged in an industry affecting commerce who has twenty or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year ..." § 630(b). Plaintiff has identified a number of individuals who she contends were employees during the relevant time periods. It is for the Court to determine which of these individuals are. as a matter of law. employees.

         As courts have noted, the "definitions of 'employer' and "employee" in federal law are often circular and explain nothing." Butler v. Drive Auto. Indus, of Am.. Inc., 793 F.3d 404. 408 (4th Cir. 2015) (citing Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318. 323 (1992)). The ADEA only provides that "[t]he term "employee" means an individual employed by any employer." 29 U.S.C. § 630(f). ""An employer has an employee if [the employer] maintains an employment relationship with that individual.'" Taylor v. Cardiology Clinic, Inc., 195 F.Supp.3d 865. 871-72 (W.D. Va. 2016) (citing Walters v. Metro. Educ. Enters.. Inc.. 519 U.S. 202. 207 (1997)). Accordingly, courts have adopted a test "called the "payroll method, " since the employment relationship is most readily demonstrated by the individual's appearance on the employer's payroll." Id. (citing Walters, 519 U.S. at 206-07). However, an individual's appearance on the employer's payroll is not necessarily dispositive, as ""an individual who appears on the payroll but is not an "employee" under traditional principles of agency law would not count" toward the minimum threshold of employees. Walters. 519 U.S. at 211. Thus, in addition to the payroll method, the Court also considers principles of control and common law agency when determining whether a particular individual is an "employee" under the relevant statutes. See, e.g.. Clackamas Gastroenterology Assocs., P. C. v. Wells, 538 U.S. 440. 448; Murphy-Taylor v. Hofmann, 968 F.Supp.2d 693, 724 (D. Md. 2013): Owens v. S. Dev. Council. Inc.. 59 F.Supp.2d 1210. 1214 (M.D. Ala. 1999).

         The Court looks to the number of employees employed at the time of the alleged discrimination, as well as the preceding calendar year. See, e.g.. Brame v. Laborers Dist. Council Health & Welfare Fund, No. CIVI. A. 89-0745. 1989 WL 95225. at *2 (E.D. Fa. Aug. 11.1989). In this case, the year 2012 provides the basis for Plaintiffs ADEA claim. See ECF No. 12 at 8-14. Thus, the Court must determine the number of employees the Union had during years 2011 and 2012 to assess whether Plaintiff can establish that the Union is liable as an "employer" under the ADEA. The alleged employees can be grouped into three categories: (I) full-time Union employees; (2) part-time and temporary workers; and (3) the Executive Board of Directors.

         a. Full-Time Union Employees

         According to an affidavit from Shirley Kirkland. current President of the Union. ECF No. 46-2. as well as an Employee Information Report. ECF No. 52-1 at 1; see also ECF No. 7-1 at 18. the Union had ten full-time employees in 2012 (six full-time professional employees, three full-time clerical employees, and the Union President). These individuals include: Executive Director Daniel Besseck. James Spears. Jr.. Courtney Wright. Adolfo Botello. Angela Thomas, Fred Shumate. Renee Dixon. Lisa Clemons. Terry Houston, and the then-President Shirley Adams. See ECF No. 52-1 at 1: ECF No. 7-2 at 1 8. In ...

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