Houston v. AFSCME Local 2250
MEMORANDUM OPINION. Signed by Judge George Jarrod Hazel on 7/10/2017. (tds, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
Case No.: G.HI-15-2507
In an earlier Memorandum
under the Age Discrimination
Opinion. the Court granted. in part. and denied. in part.
ECF NO.7. ECF No. 19. Only Plaintilrs
29 U.S.C. ~ 621 e/ seq. rcmains.
Prescntly pending before the Court is Defendants'
Renewed Motion fi.lr Summary
ECF No. 46. For the Ii.lliowing reasons. Defendants'
Renewed Motion for Summary
The laets of this case were fully set forth in the Court's
ECF No. 19 at 1-8.'
working as an administrative
In short. PlaintilTTerry
for the Association
of State. County. and Municipal
7. 2016 Memorandum
a then 66-year old ]emalc
of Class iii cd Employees/American
Local 2250 (..the Union") experienced
large pay cut in April 2012. which shc alleges was a result of age discrimination.
Jd at 2-3. Alier
documents filed on the Court"s electronic tiling system (CM/ECF) refer to the page numbers generated
by that system.
briefing and argument
issues of material
Motion for Summary
lact as to the cxistcnce of agc discrimination.
put forth enough dircct or circumstantial
.Judgment. the Court Illlll1d that there
and Plainti IThad
cvidence to survivc summary judgmcnt
on her ADEA
ECF No. 19 at 21. The mattcr was sct fllr trial.
Two weeks prior to trial. Defendants
Union meets the definition
filcd a Motion to Dismiss fl)r Lack of Subject
Illl' the first timc. that becausc Plaintiff cannot establish
under the ADEA. the Court did not have subject matter
ECF No. 46. After Plaintiff was given an opportunity
was held on .June 2.2017.
lack of subject matter jurisdiction.
to file a response.
ECF No. 52.
and the Court declined to dismiss the case Illr
Motion into a Rcncwcd Motion Illr
.Judgment. See ECF No. 63.2 Thc Court Illrthcr dircctcd the parties to submit any
relevant to the issucs raiscd. Thc Court has now rcvicwcd
is unable to cstablish
parties. and rclcvant authoritics.
an cssential c1cmcnt of her claimundcr
thc Union. had the requisite twenty cmployecs.
thc rccord in its
and finds that Plaintiff
thc ADEA. namely that hcr
grantcd in favor of Dcfcndants.
Thc court "shall grant summary judgmcnt
dispute as to any matcrial
Civ. P. 56(a). A matcrial
if the movant shows that thcrc is no genuine
Itlct and the movant is entitled to judgmcnt
as a mattcr of law:' Fcd. R.
Itlct is one that "might affect the outcome of the suit under the
law:' Amiers(J/1 ". Liherl)' Lohh)'. Inc .. 477 U.S. 242. 248 (1986). A genuine issue over
tact cxists "ifthc
was based on the
is such that a rcasonable jury could return a vcrdict flJr the
involved an clement of the claim. See Arhaugh
CrollI'. Case No. 16-864.2017
that the issue was Ilotjurisdiclional
in nature. but rather.
f&/f Corp .. 546 U.S. 500. 504 (2006). Frel1ch 1'. Apphl.!d I\ych
WL 1234059 (E.D. Tex. Mar. 24. 2017).
nonmoving party:' Id In undertaking this inquiry. the Court must consider the 1~letsand all
reasonable inlerences in the light most favorable to the nonmoving party. Scoll \'. lIarris. 550
U.S. 372. 378 (2007). But this Court must also abide by its affirmative ohligation to prevent
factually unsupported claims and de lenses from going to trial. Dre\l'ill \', I'rall. 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 lilils to
make a sutlieient showing on an essential clement or his or her case as to which he or she would
have the burden of proof." Bellioll \'. I'rillce George's Cml)'. Col/.. No. CIV.A, DKC 12-1577.
2013 WL 4501324. at *3 (D. Md. Aug. 21. 2013) (citing Ce/o/ex Corp. \'. Calrell. 477 U.S, 317.
322-23 (1986». Thus. upon a motion I()r summary judgment. the opposing party "may not rest
upon ... mere allegations or denials." hut rather, "must set lorth specilic facts showing that there
is a genuine issue lor trial. . , :. Tyler \', I'rince George's Cly.. Mm:\'lalld. 16 F. App'x 191. 192
(4th Cir. 2001) (citing Fed. R. Civ, P. 56(e)),
The ADEA prescrihes that "[i]t shall he unlawrullor an employer to, , ,discriminate
against any individual with respect to [her] compensation. terms. conditions. or privileges of
employment. hecause or such individual's age, . :. 29 U.S,c. ~ 623(a). The issue he!()re the
Court is whether the Delendant had a sufficient numher of employees to he considered an
employer under the ADEA. Under 29 U.S.c. ~ 630(b) ... [tlhe term 'employer' means a person
engaged in an industry alketing commerce who has twenty or more employees 1(11' each working
day in each of twenty or more calendar weeks in the current or preceding calendar ycar , . :. ~
630(h). Plaintiff has identilied a number or individuals who she contends were employees during
the relevant time periods. It is for thc Court to determinc
are. as a
mattcr of law. cmployccs.
As courts havc notcd. the "dctinitions
often circular and cxplain nothing:'
Blilier \'. Dril'e A 1110. ndlls. o(Am .. In('.. 793 F.3d 404. 408
(4th Cir. 2(15) (cit in\: Naliol1ll'ide Mill. Ins. Co. \'. Darden. 503 U.S. 318. 323 (1992)). Thc
ADEA only providcs that ..[tlhe tcrm 'cmploycc'
~ 630(1). "An cmploycr
has an employee
Taylor \'. CardioloKY Clinic. Inc .. 195 F. Supp. 3d
(W.D. Va. 2016) (citing Wallers \'. Mell'll. Edllc. Ell/as .. Inc.. 519 U.S. 202. 207
with that individual:'
mcans an individual
courts have adoptcd a tcst "call cd the 'payrollmethod:
is most rcadily dcmonstrated
by the individual's
Id. (citing lVallers. 519 U.S. at 206-07).
on the employcr's
payroll is not nccessarily
appcars on thc payroll but is not an 'employcc'
not count" toward the minimum
whether a particular
as "an individual
of agency law would
lVal/ers. 519 U.S. at 211. Thus. in
addition to thc payroll method. thc Court also considcrs
agcncy when dctcrmining
of control and common
is an "cmployce"
undcr thc rclevant
statutes. See. e.g. Clackamas Gas/I'llell/el'lllo?,,!' ssocs.. P. C. ". Wells. 538 U.S. 440. 448:
JllIIphy-Taylor ". 11t!/illlll1n.968 F. Supp. 2d 693.724
(D. Md. 2013): (hl'CI1s\'. S. Del'. COllncil.
Inc.. 59 F. Supp. 2d 1210. 1214 (M.D. Ala. 1999).
The Court looks to thc numbcr ofcmployecs
as well as thc prcccding
at thc timc ofthc allcgcd
calcndar ycar. See. e.g. Brame \'. I.ahoras'
COllncil Heallh & Welfare Fllnd. No. CIV!. A. 89-0745.
1989 WI. 95225. at *2 (E.D. I'a. Au\:.
11. 19R9). In this casco the year 2012 provides the basis for Plaintifrs ADEA claim. See ECF
No. 12 at R-14. Thus. thc 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
"cmployer"' undcr thc ADEA. The allegcd employees can be groupcd into thrcc catcgorics: (I)
full-time Union cmployccs: (2) part-timc and temporary workers: and (3) the Exccutivc Board of
Full-Time Union Employees
According to an affidavit from Shirley Kirkland. current Presidcnt ofthc Union. ECF No.
46.2. as well as an Employee Information Report. ECF No. 52-1 at 1: see a/so ECF NO.7-I at
IR. the Union had ten full-time employees in 2012 (six full-timc professional employees. three
full-time clerical employees. and the Union President). These individuals include: Executivc
Director Daniel Besseck. James Spears. Jr.. Courtney Wright. Adolfo Botello. Angela Thomas.
Fred Shumatc. Rcnee Dixon. Lisa Clemons. Terry Iiouston. and the then-President Shirley
Adams. See ECI' No. 52-1 at I: ECF No. 7-2 at 1R. In 20 II. the preceding ycar. thc Union had
the same ten (10) employees. See id. Thcre is no dispute that thesc individuals count towards the
total number of employees.
For 20 II. in addition to the ten employees named abovc. the Union also employed James
Shearer. Richard Putncy. Faith Joncs. and Shirley Breese. as part-time or tcmporary workers. See
ECF No. 52-1 at 1: ECF No. 7-2 at IR. Mr. Shearer and Mr. Putncy's statuscs as cmployccs
under the statute do not appear to be disputcd by the parties. Added to thc tcn full-time
cmployees for 2011. that makes twclve employces. According to an affidavit submitted by
current Union President Shirley Kirkland. howevcr. Faith Jones "only worked until Fcbruary 17.
20 II:' ECF No. 53-1 ,; 4. Thus. Ms. Jones did not work for the requisite twenty-week
be detined as an employee
under the statute. Shirley Breese was hired on August
IS. 2011. Id
She therefore worked for only nineteen weeks in 20 II. Thus. neither Ms. Jones nor Ms. Breese is
added to the total Ie))'20 I I.
In 2012. according
to the Employee
Clark. Shirley Breese. Constance
2 at IS
to the ten full.time
Rep0l1. the Union a\so employed
docs not appear to be disputed
tor 2012. that makes eleven. According
by the parties. Added
to Shirley Kirkland.
Shirley Breese worked only until February 29. 2012. ECF No. 51
there lore did not work lor the requisite
hired on September
Brown. and Morris Tolson. See ECF No. 52.1 at I: lOCI' No. 7-
status as an employee
twenty weeks in 2012. Similarly.
6. 2012. and her employment
ended on September
'i 6. Ms.
29. 2012. !d. Theretell'e.
Ms. Brown also did not work le)r the requisite twenty weeks. Finally. Morris Tolson was hired on
16.2012. and his employment
ended on January
o. 51 ~ 6. Thus. Mr.
Tolson also did not work lor the requisite twenty weeks in 2012.
Plaintiff also submits the affidavit of current President
were five other individuals
who worked temporarily
Shirley Adams. stating that there
lor the Union during the relevant time
periods. ECF No. 58 at I. Ms. Adams names Beverly Johnson.
Dixon. Mary Newman.
helped assume some of Ms. Houston's
was out of work on injury alier May 2012.1d ~ 4. According
and Beverly Johnson.
when Ms. Houston
to Ms. Adams. Mr. Curtis. a
The Employee Information Report for 201~ indicates that Faith Jones was employed by the Union in 2012. EeF
No. 52-1 at I; however. Shirley Kirkland attests in her affidavit that Ms. Jones' employment ended on February 17.
20 II. and no W2 for 20 12 exists for Ms. Jones. ECF No. 53-1 ~ 4; Sf!e ECF No. 51-1 at 3-9. Plaintitrthus fails to
show that Ms. Jones \\.ould be included in the employee count for 20 12.
.. \Vilh respect to Constance Brown. PlaintifTsubmits the affidavit of Shirley Adams. who attests that Ms. Brown
worked ulltil the "second wcek of October 2012'" ECF No. 62. This difTerence is immaterial. hO\\'cvcr. bccause it
still would not push Ms. Brown across the twenty-week threshold.
maintenance worker, had an "ongoing employment relationship with the union that lasted
throughout [Ms. Adams' J term as president li'om 20 I 1 thru 2014'" Id. ~ 5. Tom Cavenaugh, who
Defendants term as a computer consultant. ECF No. 60 at L also allegedly had an "employment
relationship" with the Union. Id. Ms. Adams further attests that Alcxandcr Dixon, the son of
Rcnce Dixon, did work for the Union ovcr thc summcr and was on the payroll. Id.
I'laintiffhas not. howevcr, submitted any evidence ofthesc individuals' cmploymcnt with
the Union or thcir compensation history. Conclusory statemcnts, made "without specilic
cvidentiary support" arc insurticient to avoid summary judgment. See Callsey \'. Balog, 162 F.3d
795,802 (4th Cir. 1998). For example, Plaintiff submits only the artidavit of Shirley Adams
attesting that Mary Newman "had a working relationship with the Local to assist with the
processing of the sick leave bank from July to August 2012," which, in any case, would not
constitute twenty weeks. By contrast, Defendants submit another aflidavit of Shirley Kirkland
attesting that Ms. Johnson was "an individual that was provided to us by a temporary
employment agency," and that Ms. Johnson was not placed until 2013. ECl' No. 60 ~ 2, and
Defendants also attach several invoices supporting this fact. ECl' No. 60-1 at 2-3. Ms. Kirkland
further attests that Mr. Cavenaugh has his own computer consulting business and worked with
the Union as an indepcndent contractor. ECl' No. 60 ~ 3. I'laintiffhas submitted no evidence
refuting this testimony, or showing that Mr. Cavenaugh was in fact an employee of the Union or
worked at least twenty weeks for the Union in 201 lor 20125 Evcn if the Court included all live
of these named individuals, the count would fall short of twenty employees lor both 201 1 and
To the ex.tent PlaintifThas complained that Defendants raised this issue without warningjust prior to trial. and that
it involves an issue \vhere most relevant material is in Defendants' possession. it must be noted that PlaintiO'had
months of pre-trial discovery during which she could have sought evidence from Defendants as to this element of
Neither Plaintiffs attaehment of Defendants' Financial Reports indicating salary amounts
expended for "Temp Help." ECF No. 64-1 at 1-9. nor the invocation of the joint employer
doctrine. ECF No. 64 at 2. alter this conclusion. Plaintiff attests that between March 20 II and
December 2012. Delendant AFSCME Local 2250 paid for "Temp services:' ECF No. 64 at 2.
For example. Plainti 1'1'
attaches a linancial report from March 2011 that indicates $9.340.00 was
paid for "Salaries - Temp -Ilelp"
in that month. Similarly. a report states that $9.450.00 was
paid Itlr "Salaries - Temp - Help" in April 20 II and that $9.000 was paid in May 20 I I. etc. !d
The Court is still unable to conclude based upon this submission. or any other evidence
submitted thus Illr. how many employees were actually employed during this time. Even if
PlaintilTcould link the payment of temp salaries. see ECF No. 64 at 2. to any particular
individual. she still fails to show that the alleged "employment relationship" (i.e. the individuals'
appearance or non-appearance on the Union payroll) lasted for the requisitc twcnty weeks. See
Melro. Edl/c. Enlerprises.
Inc .. 519 U.S. 202. 206 (1997).
Additionally. under thc joint-employment
doctrine. Plaintiff Illils to cstablish how any
temporary workers werc actually 'jointly employed" by both their respective employment
agency (i.e. Cortemps Stal1lng Scrvices. ECF No. 64 at 2. or otherwise) and Local 2250. See
Dril'e A 1/10. Indl/s. of Am .. Inc .. 793 F.3d 404. 414 (4th Cir. 2(15) (adopting "hybrid
test:' combining control test and economic realities test. for detemlining whether an individual is
jointly employed by two or more entities. reiterating that "control" is thc principal guidepost. but
noting that authority to hire and lire. degree to which worker is supervised. and whcre and how
the work takes place are also "important" factors). Specilically. Plaintiff fails to show how the
Union established "signilicant control" over these workers. such that they would be deflncd as
"employees" at all. mueh Icss It)r twenty weeks or more. Thus. in total. Plaintiff has only
for 2012 and elevcn cmployecs
from 2011 Ii'om the lirst two
c. Executive Board of Dircctors
Board also had sixtccn board membcrs (not including
Shirlcy Adams) at all rclcvant timcs. see ECF No. 7-2 at 2-3. whom PlaintilTargues
should bc countcd as cmployecs.
Pursuant to Articlc VIII ofthc
"shall havc its busincss conductcd
by an Executivc
elect a President.
to attend each regularly scheduled
without an appropriate
Id at 12-14. Board
excuse shall be removed
only board member that receives compcnsation.
ECF No. 46-2
'i 4. Kirkland
of all Union mcmbers.
County Public Schools.
to Kirkland. the board mcmbcrs
but the board membcrs
further allests that
"do not perlaI'm work lor the Union. or take any dircetion
Union stan: See ECF No. 7-2 at 3. 14.
Current President of the Union. Shirley Kirkland. attests that the Union President
the board members
Id at 15. Among other Union business. the Executive Board is empowered
and to the
Board consists of two members
Id. From their mcmbership.
Board is open to
County Public Schools ("'PGCPS")
who fail ..to attend three consecutive
lOCI' No. 7-2 at 14. Election to thc Exceutivc
of the Prince Georgc's
each of eight departments
Board duly c1cctcd by the toWlmcmbcrs
full-time staff of the Union. See id at 10. The Executive
from anyone at the
attend mcetings and advocate on behalf
arc full-timc employccs
not thc Union. See id
(I) Administrative Ollice Employees. (2) Central Garage Employees, (3) Food Services Employees. (4) Ilealth
Employees. (5) Instructional Aides. (6) Maintenance Employees. (7) School Ollice Employees. (8) Transportation
Employees. ECF No. 7-2 at 14.
Plaintiff argues in her Opposition
that the board members
"hours that they perform duties for Local 2250:'
because the board members
can request paid "organizational
that these Union-related
Union oftice, attcnding
'i 16, Plaintiff
appears to argue that
full-time by PGCPS, and because thc board members
should be considered
ECl' No, 52
are paid by Local 2250 for
leave" ("'OIL") for Union-related
of the Union. See it!.
16. Plainti 1'1'
include assisting "with mailings, othcr support scrviccs in thc
Board mcctings or filling in for an abscnt or ill cmploycc:'
this time, thc mcmbers
are on Local 2250's payroll."
the Court any information
Id ~ 17. Plaintiffhas
as to how many wccks, ifany,
thc board members
wcre actually on the Union payroll.
on this point. Defendant
that even if the board mcmbers do rcccivc
come from the PGCPS Board of Education,
through OIL. the funds actually
not the Union itsell: See ECl' No. 53 at 3-4: ECl'
No. 53-1 at 2. Kirkland attests that "this leave is paid for by the HOE:' and .. [olther than
the leave slip to the labor relations depat1ment
any other role in this Icave benefit provided
lor the cost of any substitutc
by the HOE:' ECl' No. 53-1 at 2. Plaintiff does not
but submits an aftidavit
Irom IOrIner Union President.
whereby "the board shall be reimburscd
in the absence of regular employees
Eel' No. 58 ~ 2. None of Plaintiffs
that the board members
of the BOE. the Union does not play
by the union
who have been
supports her assertion
as Union employees. See Dea" ".
Employees. Lo("(/I-/76, 509 l'. Supp. 2d 39. 53 (D.D.C. 20(7) (finding union ofticcrs not
whcrc thcy did not rcceive compensation
Irom thc union).
Even assuming that Plaintiff could producc cvidcncc that thc board mcmbcrs wcre on the
Union payroll for the rcquisite twenty wccks. the board mcmbcrs' appcarance on thc payroll
would not resolve the question whether they wcrc "employees" in light of traditional agcncy
principles. In determining whether a director is an "employee:' courts havc applicd thc f()lIowing
factors of common-law agency: ,,( 1) whether the dircctor performcd traditional cmploycc duties:
(2) whcthcr thc director was regularly employed by a separatc cntity: and (3) whcthcr thc
dircctor reported to someone higher:' Frederick
United Bill/. o(Corpenters & Joiners o(AIII.
(UBe/A) 1.0('(/1926. 558 F. App'x 83. 85 (2d Cir. 2014): E.E.o.C.
Johnson & !Iiggins. !nc..
91 F.3d 1529. 1539 (2d Cir. 1996): Chol'ero \'.1.0('(/12-11. Dil'. ,!(the Allloigollloted T/'(fnsit
Union. 787 F.2d 1154. 1157 (7th Cir. 1986).
It is truc that thc board mcmbcrs "shall be required to attend cach rcgularly schcdulcd
Exccutive Board mcetings:' and thosc who fail "to attend threc consecutive meetings without an
appropriatc cxcuse shall bc rcmoved from office:' ECl' No. 7-2 at 15. However. with the
exception of limited activities perftll'll1Cdfor undefined periods of time. EC F No. 52
'i 17. what
could be considcred "traditional cmployec duties" cnds thcre. See Deon. 509 F. Supp. 2d at 55
(finding union officers not employees whcre. in addition to not bcing compensated. officers did
not perform traditional employee duties such as maintaining records or managing the officc).
Although the Union President does rcccivc compcnsation from thc Union. and would bc
considered an employec ofthc Union, see ECl' No. 7-2 at 12. cvidcncc in the rccord
demonstrates that board members do not "take any dircction Ii'om anyonc at thc Union:' ECl'
No. 46-2 at 2. and in fact remain full-timc cmployces of PGCI'S. not thc Union. Accordingly.
thcrc is no genuine dispute that thc board mcmbcrs wcrc not Union "employccs" within thc
mcaning ofthc statutc.
Thus. as thc total number of employecs cmploycd by thc Union in 2011 and 2012 is less
than twcnty. Plainti ff cannot raise a genuinc disputc of matcrial fact as to whcthcr thc Union was
an cmploycr. an essential elemcnt of her ADEA claim. warranting summary judgmcnt for
For thc forcgoing rcasons. thc Court grants Dcfcndants' Rcncwcd Motion for Summary
Judgment. lOCI'No. 46. Plaintiffs Motion for Leavc to File a Surrcply in Opposition to
Defendants' Motion to Dismiss. ECF No. 65. is dcnicd.7 A separatc Ordcr shall issuc.
Unitcd Statcs District Judgc
Following the telephone status conference held on June 2. 2017. the Court provided both parties with the
10 submit additional evidence regarding the number of Union employees. The deadline tiJf such
submissions was set for 12:00 p.m. on June 3. 2017. in order 10 allow the Court 10 determine whether to proceed
with the then-imminent trial. The Court subsequently reviewed Plaintifrs timely submission. ECF No. 61. as well as
three late submissions. ECF Nos. 62. 63. and 64. in preparation for this Memorandum Opinion. On June 6. 2017.
Plaintiff filed a Motion for Leave to File a Surreply in Opposition to Defendants' Motion to Dismiss. ECF No. 65.
Loc. R. I05.2(a) provides that ,,[u ]nJess othen\,'isc ordered by the court. surreply memoranda are not pennitted to be
tiled. Surrcplies may be permitted when the moving party would be unable to contest matters presented to the court
lor the lirst time in the opposing party's reply:' Kholl/:l' 1'. Mese,,'e. 268 F. Stipp. 2d 600. 605 (D. Md. 2003)
(internal citations omitted). In this instance. Plaintiff has been afTorded ample opportunity to provide evidence
establishing the requisite elements of her claim. and the Motion for Leave to File Surreply shall accordingly. be
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