Houston v. Shirley Kirkland et al

MOTION to Dismiss for Lack of Jurisdiction

D. Md.May 22, 2017

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND TERRY HOUSTON Plaintiff, v. Case No. 15:cv-2507 (GJH) SHIRLEY KIRKLAND AND AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, LOCAL 2250, et. al. Defendants. DEFENDANT’S MOTION TO DIMISS FOR LACK OF SUBJECT MATTER JURISIDCTION Pursuant to Local Rule 105 and Federal Rules of Civil Procedure 12(b)(1) and 12(h)(3), Defendant Association of Classified Employees/American Federation of State, County and Municipal Employees Local 2250 (AFL-CIO)(“Union”), by and through its undersigned counsel, hereby moves to dismiss Plaintiff’s claim under the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621, et seq. because this Court lacks subject matter jurisdiction. As explained more fully in the Union’s memorandum of law in support of this motion to dismiss, the Union does not satisfy the definition of “employer” under the ADEA. Therefore, the Court should dismiss plaintiff’s ADEA claim against the Union for lack of subject matter jurisdiction.1 1 It was only upon preparing for trial of this matter that Defendant’s counsel learned of the factual circumstances that support this motion. Counsel had not been aware of the factual support for this motion at the time of the parties’ pretrial conference. Case 8:15-cv-02507-GJH Document 46 Filed 05/22/17 Page 1 of 2 2 Respectfully submitted, _________/s/__________ Mark J. Murphy Mooney, Green, Saindon, Murphy & Welch, P.C. 1920 L Street, N.W., Suite 400 Washington, D.C. 20036 (202) 783-0010 May 22, 2017 mmurphy@mooneygreen.com Counsel for Defendants Case 8:15-cv-02507-GJH Document 46 Filed 05/22/17 Page 2 of 2 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND TERRY HOUSTON Plaintiff, v. Case No. 15:cv-2507 (GJH) SHIRLEY KIRKLAND AND AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, LOCAL 2250, et. al. Defendants. DEFENDANT’S MEMORDUM OF LAW IN SUPPORT OF ITS MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION Defendant Association of Classified Employees/American Federation of State, County and Municipal Employees Local 2250 (AFL-CIO)(“Union” or “Local 2250”), by and through its undersigned counsel, hereby submits this memorandum of law in support of its motion to dismiss Plaintiff’s claim under the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621, et seq., because this Court lacks subject matter jurisdiction. For the reasons discussed below, Plaintiff cannot establish that the Union satisfies the definition of “employer” under the ADEA. Therefore, Plaintiff cannot demonstrate that the Court has subject matter jurisdiction over her claim against the Union. As such, the ADEA claim against the Union must be dismissed pursuant to Rules 12(b)(1) and 12 (h)(3) of the Federal Rules of Civil Procedure. Case 8:15-cv-02507-GJH Document 46-1 Filed 05/22/17 Page 1 of 4 The ADEA provides that “it shall be unlawful for an employer . . . to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment, because of such individual’s age.” See 29 U.S.C. § 623(a). Under the statute, the term “employer” is defined as “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.” Under the ADEA “a labor union may be liable for discrimination either in its capacity as an “employer” or in its capacity as a “labor organization.” See Herman v. United Bhd of Carpenters & Joiners of Am., Local Union No. 971, 60 F.3d 1375, 1384 (9th Cir. 1995). When a union is sued under the ADEA in its capacity as an “employer” it is treated no differently than other employers. Id. at 1384-1385; See also Kern v. City of Rochester, 93 F.3d 38, 46 (2nd Cir. 1996) (Plaintiff bringing Title VII action against union in its capacity as an employer must demonstrate that the union meets the statutory definition of “employer.”); Chavero v. Local 241, Div. of Amalgamated Transit Union, 787 F.2d 1154, 1155 n.1(7th Cir. 1986)(“Where, however, a plaintiff attempts to hold the union liable in its employer capacity, it must fall under [the applicable statutory] definition . . . just as any other employer.”). Here, there is no dispute that Plaintiff sued Local 2250 in its capacity as her “employer.” See Complaint, at 3 (ECF Doc. No. 1). Plaintiff, however, has not (and cannot) establish that Local 2250 meets the statutory definition of “employer” under the ADEA. At the time of the Union’s conduct that provides the basis for Plaintiff’s ADEA claim (2012), the Union only had six (6) full time professional employees and three (3) full time clerical employees. See Affidavit of Shirley Kirkland (“Kirkland Affidavit”) at ¶ 2. (A copy of the Kirkland Affidavit is attached hereto as Exhibit 1). The six full time professional positions Case 8:15-cv-02507-GJH Document 46-1 Filed 05/22/17 Page 2 of 4 included James Spears, the Union’s field services director, Courtney Wright, the Union’s financial manager, Adolfo Botello, Angela Thomas and Fred Shumate as the Union’s field representatives, and Daniel Besseck as the Union’s executive director. Id. at ¶ 2. The individuals employed in the Union’s three clerical positions included Renee Dixon as the Union’s membership specialist – internal organizer, Lisa Clemons as the Union’s secretary and Plaintiff as the Union’s membership specialist – benefits coordinator. See Kirkland Affidavit at ¶ 3. In addition to the above individuals, the only other individual the Union employed at the relevant time was Shirley Adams as the Union’s president. Id. Other than the Union’s president, the remaining members of the Union’s Executive Board are not paid any compensation. Id. at ¶ 4. Moreover, the Union’s Executive Board members do not perform work for the Union, or take any direction from anyone at the Union. Id. Instead, these individuals attend monthly Executive Board meetings to advocate on behalf of their constituents – union members who are part of one of eight different chapters.1 All the members of the Union’s executive board remain full time employees of the Prince George’s County Public Schools. Id. ¶ 4.2 Based upon the above facts, it is apparent that Plaintiff cannot establish that Local 2250 satisfies the definition of “employer” under the ADEA because it did not have the required number of employees. In 2012, when Plaintiff alleges that the Union took action that violated the ADEA, it only had ten (10) employees. See e.g. Kern v. City of Rochester, 93 F. 3d 38, (2d Cir. 1996)(non-officer members of Union board were not “employees” under Title VII which 1 The Union’s chapters are based on the different departments within the Prince Georges County Schools (“PGPS”) where the Union represents employees who work in those departments. There are two board members who are responsible for each of the eight chapters. The eight chapters include a paraprofessional chapter, a transportation chapter, a maintenance department chapter, a health service chapter, a food service chapter, a central office chapter, a central garage chapter, and a school clerical chapter. See Kirkland Affidavit, at ¶ 5. 2 The Union president remains an employee of PGPS but the Union reimburses PGPS for the president’s salary. Id. at ¶ 4. Case 8:15-cv-02507-GJH Document 46-1 Filed 05/22/17 Page 3 of 4 require a finding of 15 employees to satisfy statutory definition of “employer”). Therefore, the Court lacks subject matter jurisdiction in this case, and Plaintiff’s ADEA claim against Local 2250 must be dismissed. Respectfully submitted, _________/s/__________ Mark J. Murphy Mooney, Green, Saindon, Murphy & Welch, P.C. 1920 L Street, N.W., Suite 400 Washington, D.C. 20036 (202) 783-0010 May 22, 2017 mmurphy@mooneygreen.com Counsel for Defendants Case 8:15-cv-02507-GJH Document 46-1 Filed 05/22/17 Page 4 of 4 Case 8:15-cv-02507-GJH Document 46-2 Filed 05/22/17 Page 1 of 2 Case 8:15-cv-02507-GJH Document 46-2 Filed 05/22/17 Page 2 of 2