United States District Court, D. Maryland, Southern Division
J. HAZEL, UNITED STATES DISTRICT JUDGE
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.
facts of this case were fully set forth in the Court's
December 7. 2016 Memorandum Opinion. ECF No. 19 at
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
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. 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
STANDARD OF REVIEW
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).
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.
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.
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).
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
Full-Time Union Employees
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 ...