01980786
10-14-1998
Gary R. Epler, Appellant, v. F. Whitten Peters, Acting Secretary, Department of the Air Force, Agency.
Gary R. Epler, )
Appellant, )
)
v. ) Appeal No. 01980786
) Agency No. 9VIM97333
F. Whitten Peters, )
Acting Secretary, )
Department of the Air Force, )
Agency. )
______________________________)
DECISION
Based on a review of the record, we find that the agency properly
dismissed appellant's complaint, pursuant to EEOC Regulation 29
C.F.R. �1614.107(a), for failure to state a claim. Appellant, on behalf
of the union for which he is First Vice President, alleged that the union
was subjected to discrimination in reprisal for prior EEO activity when,
beginning on October 2, 1996, and continuing until June 27, 1997, the
agency failed to withhold union dues from an employee's pay check.
On September 30, 1997, the agency issued a final decision dismissing
the union's complaint for failure to state a claim. Specifically, the
agency determined that appellant, as representative of the union, failed
to show that he suffered harm with respect to the terms, conditions,
or privileges of his employment as a result of the agency's failure to
withhold union dues.
On appeal, appellant contends that the agency erred by treating him in his
individual capacity, rather than as representative of the union. Further,
appellant cited numerous cases in the private sector in which courts have
held that for the purposes of Title VII of the Civil Rights Act of 1964
("Title VII"), as amended, 42 U.S.C. �2000e et seq., a union is a person.
Initially, we concur that it is well settled that a union is a "person
aggrieved" within the meaning of Title VII and has standing to file
a charge on its own behalf in the private sector. See Pulp, Sulphite
and Paper Mill Workers, Local 186 v. Minnesota Mining and Manufacturing
Co., 304 F. Supp. 1284 (N.D. Miss. 1969); ICW, Local 795 v. Planters
Manufacturing Co., 259 F. Supp. 365 (M.D. Miss. 1966). However, in
1972, Congress extended to the federal government protection under
Title VII from discrimination on the bases of "race, color, religion,
sex or national origin." Equal Employment Opportunity Act of 1972,
Pub. L. No. 92-261 � 11, 86 Stat. 111 (codified at 42 U.S.C. 2000e-16
(Supp. II 1996)); see Brown v. General Services Administration, 425
U.S. 820, 825 (1976) ("Until it was amended in 1972 ... Title VII did
not protect federal employees.") But Title VII was not to apply to the
federal government in precisely the same manner that it applied to other
employers. 29 C.F.R. �1614.103(c) provides that "[w]ithin the covered
departments, agencies and units this part applies to all employees and
applicants for employment ..." (emphasis added).
In the instant case, we find that the union is neither an employee
nor applicant for employment within the meaning of 29 C.F.R. �1614,
and, therefore, does not have standing to bring a claim under these
regulations. Consequently, the agency correctly dismissed appellant's
complaint for failure to state a claim.
Accordingly, the agency's final decision dismissing appellant's complaint
is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and be submitted to the Director, Office of
Federal Operations, Equal Employment Opportunity Commission, P.O. Box
19848, Washington, D.C. 20036. In the absence of a legible postmark,
the request to reconsider shall be deemed filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and any supporting documentation must be submitted with your
request for reconsideration. The Commission will consider requests
for reconsideration filed after the deadline only in very limited
circumstances. See 29 C.F.R. �1614.604(c).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that you have the right to file
a civil action in an appropriate United States District Court WITHIN
NINETY (90) CALENDAR DAYS from the date that you receive this decision.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. In the alternative, you may file a
civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. If you file a civil action, YOU MUST NAME AS THE DEFENDANT
IN THE COMPLAINT THE PERSON WHO IS THE OFFICIAL AGENCY HEAD OR DEPARTMENT
HEAD, IDENTIFYING THAT PERSON BY HIS OR HER FULL NAME AND OFFICIAL TITLE.
Failure to do so may result in the dismissal of your case in court.
"Agency" or "department" means the national organization, and not the
local office, facility or department in which you work. Filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1092)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. �2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. ��791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
Oct. 14, 1998
____________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations