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Dean v. American Federation of Government Employees

April 27, 2008

ROBIN DEAN, PLAINTIFF,
v.
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 476 DEFENDANT.



The opinion of the court was delivered by: Colleen Kollar-kotelly United States District Judge

MEMORANDUM OPINION

On September 20, 2007, the Court issued a Memorandum Opinion and accompanying Order granting the motion for summary judgment brought by Defendant, American Federation of Government Employees ("AFGE"), Local 476 (hereinafter "Defendant" or "the Local"), and dismissing this case in its entirety. See Dean v. AFGE, Local 476, 509 F. Supp. 2d 39 (D.D.C. 2007) ("Mem. Op."). The Court found that Plaintiff, a former employee of the Local, could not pursue claims under Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq, because the Local does not meet Title VII's definition of an "employer" subject to suit. See id. at 51-58. The Court further found that Plaintiff could not pursue her defamation claim--based upon an e-mail sent by Plaintiff's supervisor, Edward Eitches, President of the Local--against the Local. See id. at 58-69. Plaintiff has now moved the Court to reconsider certain aspects of its September 20, 2007 Memorandum Opinion and Order. Specifically, Plaintiff argues that: (1) the Court erred in concluding that the Local's stewards were not employees of the Local, and should have found that a factual question existed as to whether the Local was a joint employer of the stewards, along with the United States Department of Housing and Urban Development; and (2) that a jury could conclude that the Local was liable for Mr. Eitches' alleged defamation.

Defendant opposes Plaintiff's Motion for Reconsideration and, for its part, has filed a Motion for Attorney's Fees, asserting that it has been forced to unnecessarily litigate the question of whether the Local is an "employer" pursuant to Title VII. Plaintiff, in turn, opposes Defendant's Motion for Attorney's Fees. Upon searching consideration of the parties' filings, the relevant legal authority, and the entire record herein, the Court shall deny Plaintiff's [35] Motion for Reconsideration, as well as Defendant's [37] Motion for Attorney's Fees. Although Plaintiff's Motion for Reconsideration lacks merit, the Court declines to exercise its discretion by awarding attorney's fees to the Local.

I. BACKGROUND

The Court assumes familiarity with--and incorporates herein--its September 20, 2007 Memorandum Opinion, which contains an extensive discussion of the factual background of this case and the evidence adduced by the parties on summary judgment. See generally Mem. Op. 509 F. Supp. 2d 39. The Court therefore repeats herein only the minimal background necessary for resolution of the motions at issue.

Plaintiff, Robin Dean, worked as a secretary for the Local from September 21, 2002 to June 23, 2003. Id. at 43. The Local is an unincorporated association and a local labor organization, which represents only employees of the United States Department of Housing and Urban Development ("HUD"). Id. Edward Eitches is a senior trial attorney in the General Counsel's Office at HUD, and has been the President of the Local since 1999. Id. Mr. Eitches hired Plaintiff and acted as her supervisor during her tenure with the Local. Id. at 43-44.

Plaintiff's Amended Complaint alleged that during her employment with the Local, she "was subjected to unwelcome sexual advances, requests for sexual favors, and other verbal and physical conduct of a sexual nature from" Mr. Eitches, amounting to a hostile work environment, and further alleged that she was wrongfully terminated due to gender discrimination. Id. at 41, 44.

The Court's September 20, 2007 Memorandum Opinion concluded that Plaintiff could not pursue her claims under Title VII because that statute only applies to employers who have "fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year," 42 U.S.C. § 2000e(b), and the Local did not have fifteen or more employees at all relevant times. See Mem. Op., 509 F. Supp. 2d at 52-58. This conclusion was based on two separate findings: first, that the Local's officers and stewards are not employees of the Local; and second, that the Local and the National are not a single employer.

Id. As Plaintiff's Motion for Reconsideration does not challenge this second conclusion, the Court does not revisit it herein.

With respect to whether the Local's officers and stewards are employees of the Local, the Court first noted that the issue was only relevant because the Local clearly did not meet Title VII's definition of an employer under the "payroll method" test set forth in Walters v. Metropolitan Educational Enterprises, Inc., 519 U.S. 202 (1997). Id. at 52-53. Specifically, the record demonstrated that in each relevant year (2002 and 2003), the Local had no more than five people on its payroll in total, and at most two on its payroll at any given time. Id. Despite finding that the Local was not an employer for purposes of Title VII under the payroll method, the Court continued to consider Plaintiff's argument that "Local 476's officers and stewards should be considered the local's 'employees' because they are paid by HUD for doing union work under HUD and Local 476's contract." Id. at 53.

As the Court's September 13, 2007 Memorandum Opinion explained, the Local's officers and stewards are "paid by HUD for doing union work" pursuant to an "official time" arrangement authorized by the Federal Service Labor Relations Act and as a result of the collective bargaining agreement between HUD and Local 476. Id. at 46-47. "Official time" refers to duty hours paid by HUD during which a HUD employee is authorized to perform representational duties on behalf of union members. Id. at 46. The Local is permitted to designate up to twenty stewards, but is limited to a total of 5.7 full-time equivalent positions ("FTEs") of paid official time for stewards and/or officers. Id. at 47. As a result, the Local's stewards may be assigned to perform as little as 5% of their work week on union representation; in 2003, fourteen stewards were assigned to spend 10% of their work week on union representation, and four were assigned to spend 25% of their work week on union representation. Id. Further, pursuant to 5 U.S.C. § 7131(b), Local stewards and officers are expressly prohibited from performing "[a]ny activities . . . relating to the internal business of a labor organization" while on official time, but rather are restricted to doing representational work while on official time. Id.

The Court's September 13, 2007 Memorandum Opinion rejected Plaintiff's suggestion that the official time arrangement provided for in the collective bargaining agreement between HUD and the Local is unusual. Id. at 48. To the contrary, the Court noted that "[o]fficial time arrangements are specifically provided for by federal law, have been approved by the Federal Labor Relations Authority, and are used in virtually all of AFGE's over 1000 local bargaining units." Id. at 48, 53. The Court's September 13, 2007 Memorandum Opinion also rejected Plaintiff's unsupported assertion that the Local's officers and stewards would not receive their full salary from HUD if they did not work their allotted official time. Id. at 54. Instead, the Court noted the explanation of the Local's First Vice President that if the Local's officers and stewards did not work their allotted union hours, they "would return to the duties of their regular federal employment with HUD. They would lose no pay, status or other benefits whatsoever." Id. (quoting Dep. of Russell Varnado).

The Court's conclusion that the Local's officers and stewards are not employees of the Local was premised primarily on the fact that they are only compensated by HUD, and not by the Local. Id. at 53-54. The Court noted that the sole reported case concluding that union stewards were union employees for purposes of Title VII based its finding on the fact that the stewards received three forms of compensation from the union, and stated that "Central to the meaning of [the words employer and employee in the context of Title VII] is the idea of compensation in exchange for services: an employer is someone who pays, directly or indirectly, wages or a salary or other compensation to the person who provides services--that person being the employee."

Compensation is an "essential condition to the existence of an employer-employee relationship." Without compensation, no combination of other factors ...


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