[ v52 p358 ]
52:0358(34)AR
The decision of the Authority follows:
52 FLRA No. 34
FEDERAL LABOR RELATIONS AUTHORITY
WASHINGTON, D.C.
_____
U.S. DEPARTMENT OF COMMERCE
PATENT AND TRADEMARK OFFICE
(Agency)
and
NATIONAL TREASURY EMPLOYEES UNION
CHAPTER 243
(Union)
0-AR-2704
_____
DECISION
September 30, 1996
_____
Before the Authority: Phyllis N. Segal, Chair; Tony Armendariz and Donald S. Wasserman, Members.
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator Fred Blackwell filed by the Agency under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and section 2425 of the Authority's Regulations. The Union filed an opposition to the Agency's exceptions.
The Arbitrator sustained a grievance which alleged that the Agency discriminated against the grievant on the basis of race, in violation of the parties' collective bargaining agreement, when it did not select her for a computer specialist position.
For the following reasons, we conclude that six of the seven exceptions asserted by the Agency do not establish that the Arbitrator's award is deficient under section 7122(a) of the Statute. With respect to the Agency's seventh exception, concerning compensatory damages, we conclude, in Section IX below, that the award is deficient. Accordingly, we remand that part of the award to the parties to submit to the Arbitrator for clarification consistent with Section IX of this decision.
II. Background and Arbitrator's Award
The Agency posted a vacancy announcement for a computer specialist position. Before the Agency made a selection for the position, the grievant, an African American, alleged that the only white applicant had been preselected for the job. The selecting official (SO) interviewed each of the individuals on the best-qualified list in the presence of personnel from the Agency's Office of Civil Rights (OCR), who were there at the SO's request. After the interviews, the SO ranked the white applicant first and the grievant fifth. The SO selected the white applicant (the selectee).
A grievance was filed and, when it was not resolved, was submitted to the Arbitrator, where the parties stipulated to the following issue:
Did the [Agency] violate Article 10, Section (1) Subsection 1(a) and Article 10, Section 1, Subsection 6 of the contract between the parties when it failed to select [the grievant] for a computer specialist position . . . because of preselection, and because of discrimination on the basis of race, or other unlawful reasons; and if so, what is the appropriate remedy?
Award at 10.(1)
The Arbitrator found that a preponderance of the record evidence established that the grievant was not selected for the position because of her race in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as incorporated by Article 10, Section 1(1)(a) of the agreement, and that the Agency violated Article 10, Section 1(6) of the agreement in preselecting the selectee for the position. In making this determination, the Arbitrator made the following findings of fact:
(1) The grievant established a prima facie case of race discrimination by showing that she is a member of a protected group and was qualified for the position for which she applied but was not selected, and a person who was not a member of the protected group was preselected for, and was awarded, the position.
(2) The Agency rebutted the prima facie case.(2)
(3) The Agency's reasons for nonselection of the grievant were pretextual because:
(a) The Agency preselected the selectee for the position in violation of the bargaining agreement.
(b) The grievant and other African-American secretaries were denied career training opportunities that were afforded the selectee.
(c) The selecting process was seriously flawed because OCR personnel, who were usually not present at interviews of applicants, were present during the interviews for the position, and the SO used inappropriate subjective standards in administering the selection process. In this latter regard, the Arbitrator found that the SO had such total control of the selection process that, in the face of a known complaint about preselection, the selection process cannot be said to have been fairly administered.
(d) As soon as the grievant voiced her complaint about suspected racial discrimination, the Agency's resources "coalesced to build defenses against her complaint." Award at 12.
(e) The testimony of Union witnesses established that there is a discriminatory bias against African-American employees in the Agency and that white applicants were routinely chosen for computer specialist and secretarial positions. The Arbitrator pointed to the Union's exhibit showing that only 4 of 14 computer specialist positions were occupied by African Americans as evidence of a discriminatory bias.
With respect to the remedy, the Arbitrator found that but for the Agency's violations, the grievant would have been selected for the position, and awarded the grievant a retroactive promotion to the disputed position with backpay. The Arbitrator did not take into account the qualifications of the three other individuals who received higher rankings for the position because: (1) they did not protest the validity of the selection process; and (2) there was no record evidence of their qualifications. He also awarded the grievant compensatory damages in the amount of $5,000 due to emotional and mental distress. In this latter regard, the Arbitrator found that "instead of making a good faith effort to investigate the merits of her complaint, the Agency response was open opposition even though [the] [g]rievant had not filed a formal complaint that warranted collecting defensive information." Id. at 19. The Arbitrator also awarded attorney fees.
III. The Arbitrator Properly Allocated the Evidentiary Burdens in This Case
A. Agency's Contentions
The Agency argues that once a prima facie case of discrimination has been established in a disparate treatment case, the burden shifts to the Agency to articulate a non-discriminatory reason for its action. The Agency contends that the Arbitrator misapplied this evidentiary standard. The Agency maintains that, after finding that the Union established a prima facie case, the Arbitrator committed legal error in shifting the "burden of persuasion" to the Agency instead of the less onerous "burden of production." Exceptions at 14-16. The Agency submits that it has met its burden of production in stating that the selectee was selected for the position because she "had the greatest range of practical experience and education background directly related to the position and its duties." Id. at 16.
B. Union's Opposition
The Union argues that the Arbitrator assigned correct evidentiary burdens to the parties and that the Arbitrator acknowledged the Agency's rebuttal but did not find it credible. Rather, the Arbitrator was persuaded by the evidence that the Agency's articulated reason for not selecting the grievant was pretextual.
C. Analysis and Conclusions
As the Agency's exceptions here and in Sections VII, VIII, and IX, below, involve the award's consistency with law, we will review the award and the exceptions de novo. E.g., U.S. Department of the Treasury, Internal Revenue Service, Brooklyn District, Brooklyn, New York and National Treasury Employees Union, 51 FLRA 1487, 1491 (1996).
In McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973) (McDonnell Douglas), the Supreme Court set forth the order of presentation and allocation of burdens in a Title VII case alleging discriminatory treatment in hiring. First, an applicant establishes a prima facie case by showing that he or she: (1) is a member of a protected class; (2) is qualified for the position; (3) was not selected for the position; and that (4) a person who is not a member of the protected class was chosen for the position. See also St. Mary's Honor Center v. Hicks, 509 U.S. 502, 506 (1993) (Hicks); National Labor Relations Board and National Labor Relations Board Union, 44 FLRA 1223, 1233 (1992) (NLRBU). Once a prima facie case has been established, the burden shifts to the employer "to articulate some legitimate, nondiscriminatory reason for the [applicant's] rejection." McDonnell Douglas, 411 U.S. at 802. In this connection, the employer "need not persuade the court that it was actually motivated by the proffered reasons. It is sufficient if the [employer's] evidence raises a genuine issue of fact as to whether it discriminated against the [applicant]." Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 254-55 (1981). Finally, if the employer articulates a legitimate nondiscriminatory reason for not selecting the applicant, the applicant must "be afforded a fair opportunity to show that [the employer's] stated reason for [the applicant's] rejection was in fact pretext." McDonnell Douglas, 411 U.S. at 804.
The Arbitrator's award, read in its entirety, establishes that he correctly applied the McDonnell Douglas standard, although he misstated the methodology. The Arbitrator found that the Union met its burden in establishing a prima facie case. Although the Arbitrator stated that the Union's prima facie case was not rebutted by the Agency, his subsequent discussion concerning the pretextual nature of the Agency's proffered reason shows that he actually found that the Agency met its burden in rebutting the prima facie case. Indeed, if the Arbitrator had found that rebuttal was not established, it would not have been necessary for him to address the issue of pretext. Cf. NLRBU, 44 FLRA at 1233-37 (because arbitrator improperly rejected agency's proffered non-discriminatory reasons for not choosing the selectee, arbitrator failed to make required determination on the issue of pretext thereby necessitating remand). We note that the Union concedes that the Arbitrator found that the Agency presented evidence to rebut the prima facie case. Consequently, as the Arbitrator properly applied the McDonnell Douglas standard, we deny this exception.
IV. The Arbitrator Did Not Exceed His Authority by Finding That African-American Secretaries Were Denied Career Training Opportunities That Were Afforded the Selectee
A. Agency's Contentions
The Agency argues that the Arbitrator exceeded his authority in addressing this issue because it is not included within the stipulated issue in the case. The Agency contends that the Arbitrator erred in allowing in, over its objection, and then considering, unsubstantiated anecdotal evidence allegedly establishing that African-American secretaries were denied the training opportunities that had been afforded the selectee.
B. Union's Opposition
The Union states that the Arbitrator was within his authority in deciding that the grievant and other African-American secretaries were denied training opportunities even though the issue was not specifically presented to him. The Union contends that the Arbitrator properly relied on this evidence to prove disparate treatment, i.e., intentional discrimination.
C. Analysis and Conclusions
Arbitrators exceed their authority when they fail to resolve an issue submitted to arbitration, resolve an issue not submitted to arbitration, disregard specific limitations on their authority, or award relief to persons who are not encompassed within the grievance. E.g., National Air Traffic Controllers Association, MEBA/NMU and U.S. Department of Transportation, Federal Aviation Administration, Southern California TRACON, 51 FLRA 993, 995 (1996) (citation omitted). In Federal Deposit Insurance Corporation, Chicago Region, and National Treasury Employees Union, Chapter 242, 45 FLRA 437, 447-48 (1992) (FDIC), the Authority considered the agency's contention, in the context of a Title VII case, that the arbitrator addressed an issue that was not submitted by the parties, i.e., that the agency failed to follow a provision of the parties' agreement. In denying this exception, the Authority stated that the alleged failure to follow the provision in the parties' agreement was relevant to the stipulated issue of whether the agency discriminated against the grievant. Id. at 447.(3) Applying a relevance standard is consistent with the Supreme Court's discussion in McDonnell Douglas, 411 U.S. at 804, that a complainant must be afforded a fair opportunity to show that the employer's stated reason for rejection of the complainant was in fact pretext. In this connection, the Court listed examples of evidence that "may be relevant to any showing of pretext . . . ." Id.
The Arbitrator did not exceed his authority in deciding that African-American secretaries were not afforded equal training opportunities in violation of Article 38 of the parties' agreement. The Arbitrator determined that the grievant's training requests had been denied, whereas the selectee's training requests had been granted. The Arbitrator's additional inquiry concerning whether African-American secretaries, in general, were denied training opportunities available to white secretaries was directly relevant to the stipulated issue of whether the Agency discriminated against the grievant. It is precisely the type of evidence that may be probative in establishing pretext. See Colon-Sanchez v. Marsh, 733 F.2d 78, 81 (10th Cir.), cert. denied, 469 U.S. 855 (1984) (listing methods by which pretext may be shown). Consequently, we deny this exception.
V. The Arbitrator Did Not Rely on the Union's Statistics in Finding That a Prima Facie Case of Race Discrimination Had Been Established
A. Agency's Contentions
The Agency contends that the Arbitrator erred in finding that the Union established a prima facie case because he failed to determine whether the Union's document, which shows that only 4 of 14 computer specialists were African American, is probative. In this connection, the Agency states that the proper comparison should be between the percentage of African Americans in computer specialist positions and the percentage of African Americans qualified to be computer specialists in the Federal workforce. The Agency also relies on the Authority's decision in United States Customs Service, Office of Regulations and Rulings and National Treasury Employees Union, 49 FLRA 1610, 1617-18 (1994) (United States Customs Service), wherein the Authority upheld an arbitrator's decision finding that the grievant did not establish a prima facie case based on statistical disparity.
B. Union's Opposition
The Union maintains that the Arbitrator's consideration of statistical evidence was proper. The Union states that the Arbitrator did not rely on statistics to find that the grievant established a prima facie case, but rather used statistical evidence only in addressing the issue of pretext. In addition, according to the Union, the Agency's reliance on case authority that concerns alleged discrimination on the basis of disparate impact is misplaced because the issue in this case is one of disparate treatment.
C. Analysis and Conclusions
As stated above in Part III.C., the Arbitrator cited and correctly applied the McDonnell Douglas criteria in finding that the Union established a prima facie case. Although the Arbitrator discussed the statistical disparity among African-American and non-minority employees, he considered those statistics in the context of determining whether the Agency's reasons for not selecting the grievant were pretextual, not whether the statistics helped the Union establish a prima facie case.(4) Accordingly, we deny the Agency's exception.
VI. The Arbitrator Did Not Implicitly Find That Preselection Was Tantamount to Intentional Discrimination Based on Race
A. Agency's Contentions
The Agency argues that the Arbitrator erred in finding that proof of preselection also established intentional discrimination. In this regard, the Agency states that a mere finding that its articulated reason for hiring the selectee was pretextual or false, because she was a friend of the SO, does not establish that the hiring decision was based on racial discrimination. In the Agency's view, the Arbitrator erred in finding that the Union met its burden of proving that the Agency intentionally discriminated against the grievant by hiring the individual it selected for the position.
B. Union's Opposition
The Union asserts that the Arbitrator inferred intentional discrimination based on the Arbitrator's weighing of the record evidence. The Union contends that the Agency's exception is nothing more than an attempt to relitigate the merits of the case.
C. Analysis and Conclusions
As we stated with respect to reviewing the Agency's first exception in Section III above, we review the question of law raised by the Arbitrator's award and the Agency's exception de novo. In employment discrimination cases based on race, once the plaintiff has established a prima facie case, and the defendant has succeeded in carrying its burden of production, the trier of fact proceeds to consider the ultimate question: whether the plaintiff has proven that the defendant intentionally discriminated against the plaintiff because of race. Hicks, 509 U.S. at 511. In Hicks, the Supreme Court stated that "[t]he factfinder's disbelief of the reasons put forward by the defendant . . . may, together with the elements of the prima facie case, suffice to show intentional discrimination. Thus, rejection of the defendant's proffered reasons will permit the trier of fact to infer the ultimate fact of intentional discrimination . . . ." Id. (emphasis in original; citation omitted). See also Randle v. City of Aurora, 69 F.3d 441, 451 (10th Cir. 1995); Miller v. Cigna Corporation, 47 F.3d 586, 596-97 (3d Cir. 1995).
The Arbitrator applied this standard in determining, based on inferences from the record, that the Union demonstrated that the Agency intentionally discriminated against the grievant. The Agency correctly states that proof of preselection does not necessarily undercut the proffered reason that the selectee was better qualified than the grievant. However, the Arbitrator did not base his finding of intentional discrimination solely upon his rejection of the Agency's proffered reasons for rejecting the grievant.(5)
Instead, the Arbitrator evaluated all of the evidence, made the necessary credibility determinations, and, in relevant part, found that: (1) the grievant belongs to a racial minority; (2) the grievant applied, and was qualified, for the vacant position of computer specialist; (3) the grievant was not awarded the position; (4) the position was awarded to an applicant who is not a member of a racial minority; (5) the Agency had preselected the selectee for the computer specialist position; (6) the grievant had been denied career training opportunities that the Agency had made available to selectee; and (7) the selection process was flawed. Under traditional arbitration principles, we defer to these findings of fact. E.g., U.S. Department of the Air Force, Lowry Air Force Base, Denver, Colorado and National Federation of Federal Employees, Local 1497, 48 FLRA 589, 593 (1993) (Lowry Air Force Base) (discussing Supreme Court's articulation of deferential standard of review of arbitration awards in United Paperworkers v. Misco, Inc., 484 U.S. 29 (1987); U.S. Department of Justice, Immigration and Naturalization Service, Honolulu District Office, Honolulu, Hawaii and American Federation of Government Employees, Local 2886, National Immigration and Naturalization Council, 41 FLRA 207, 211-12 (1991) (same). That the Arbitrator found the Agency to have engaged in preselection was just one of many facts that he relied upon in finding that the Agency intentionally discriminated against the grievant. Accordingly, as the Arbitrator applied the standards established by Hicks in finding intentional discrimination, we deny the Agency's exception.
VII. The Arbitrator's Assessment of the Grievant's Qualifications Is Not Contrary to 5 U.S.C. § 7106(a)(2) or the Federal Personnel Manual, Chapter 335
A. Agency's Contentions
The Agency argues that because the Arbitrator erred in rejecting the SO's ranking of the candidates, he also erred in not fashioning a remedy usually found in cases where preselection is found. In this regard, the Agency contends that in order to preserve management's right to select from among a group of properly ranked and certified candidates under 5 U.S.C. § 7106(a)(2)(C), an appropriate remedy would be to order the Agency to rerun the selection process. The Agency argues that under the FPM, Chapter 335, when preselection is found, the usual remedy is to require an agency to rerun the selection process. The Agency also asserts that the grievant would not have been chosen because she was not the next candidate on the list.
B. Union's Opposition
The Union responds that the Arbitrator was within his authority in not considering the qualifications of the three higher-ranked candidates because he did not find that evidence to be credible. In this regard, the Union points to the Arbitrator's finding that the selecting official used inappropriate subjective standards in administering the selecting process.
C. Analysis and Conclusions
Section 7106(a)(2)(C) provides that management has the right in filling positions to select from among a group of properly ranked and certified candidates for promotion or from any other appropriate source. FPM Chapter 335, Appendix A governs an agency's actions to remedy violations of applicable laws that occur in connection with the filling of agency positions.(6) When resolving whether a remedy ordered in an arbitration award impermissibly conflicts with a management right or with the FPM, as in this case, the Authority has held that management's right to make selections for promotion can be abridged by an award of an arbitrator only when the arbitrator finds that the grievant would have been selected for the promotion in the absence of the prohibited racial discrimination. FDIC, 45 FLRA at 443-44. That is, the arbitrator must reconstruct what the responsible selecting official would have done if the unwarranted agency action had not occurred and must find that the selecting official would have selected the grievant but for the unwarranted actions. National Treasury Employees Union and U.S. Department of Health and Human Services, Family Support Administration, 35 FLRA 501, 508 (1990). The Authority will not look behind an arbitrator's award in cases where the requisite "but for" finding is made. See, e.g., American Federation of Government Employees, AFL-CIO, Local 2855 and United States Army, Military Traffic Management Command, Eastern Area, 13 FLRA 251, 252 (1983).(7)
It is clear that the Arbitrator found that the Agency committed an improper action. See U.S. Department of the Treasury, Internal Revenue Service, Helena District and National Treasury Employees Union, Chapter 42, 37 FLRA 1410, 1422 (1990) (Helena District) (a finding that the grievant was discriminated against on the basis of race constitutes an unjustified or unwarranted personnel action). The Arbitrator also found that had the Agency not engaged in discrimination against the grievant, she would have been selected for the position. In this regard, the Arbitrator specifically found "that but for the aforecited Agency violations of the [g]rievant's rights, the Agency would have selected [g]rievant for and promoted [g]rievant to the position." Award at 18. In view of this finding of fact, and because we do not look behind an arbitrator's award that contains the requisite findings of fact, we reject the Agency's argument that the Arbitrator erred in not accepting the SO's ranking of the candidates. As this argument is the basis of the Agency's contention that the Arbitrator's remedy violates section 7106(a)(2)(C) and FPM Chapter 335, Appendix A, we likewise reject that contention as well. Stated otherwise, in light of the Arbitrator's determination that the grievant would have been selected for the position but for the Agency's improper action, the Arbitrator's direction to the Agency to retroactively promote the grievant is consistent with section 7106(a)(2) and FPM Chapter 335, Appendix A.(8)
Consequently, we conclude that the Arbitrator made the necessary finding that the grievant would have been selected for the position if the Agency had not racially discriminated against her. Accordingly, we deny the Agency's exception.
VIII. The Award of Backpay Is Not Contrary to 5 U.S.C. § 7106(a)(2)(C) or 5 U.S.C. § 5596
A. Agency's Contentions
The Agency contends that the award of a retroactive promotion and backpay is deficient under section 7106(a)(2)(C) of the Statute because the Arbitrator erred in finding that, but for the selecting official's preselection of the selectee, the grievant would have been selected for the position. Therefore, the Agency argues that the award violates 5 U.S.C. § 5596 because the condition precedent for an award of backpay--an unwarranted personnel action resulting in the denial of backpay--is not present here.
B. Union's Opposition
The Union asserts that the Arbitrator's award of backpay is consistent with law. The Union maintains that the Arbitrator found a direct connection between the Agency's preselection and the grievant's nonselection.
C. Analysis and Conclusions
For the reasons discussed in the preceding section, the award is not contrary to 5 U.S.C. § 7106(a)(2)(C). With respect to the Back Pay Act, an award of backpay is authorized if: (1) the aggrieved employee was affected by an unjustified or unwarranted personnel action; (2) the personnel action directly resulted in the withdrawal or reduction of the grievant's pay, allowances, or differentials; and (3) but for such action, the grievant otherwise would not have suffered the withdrawal or reduction. E.g., U.S. Department of Veterans Affairs, Medical Center, Kansas City, Missouri and American Federation of Government Employees, Local 2663, 51 FLRA 762, 765-66 (1996). A finding that the grievant was discriminated against on the basis of race constitutes an unjustified or unwarranted personnel action under the Back Pay Act. See Helena District, 37 FLRA at 1422. As discussed above, the award satisfies the three requirements of the Back Pay Act: (1) the Arbitrator found that the grievant was discriminatorily denied a promotion on the basis of race, i.e., the Agency committed an unjustified or unwarranted personnel action; (2) such violation directly resulted in the withdrawal or reduction of the grievant's pay; and (3) but for such action, the grievant would not have suffered the withdrawal or reduction, i.e., she would have been promoted to the position of computer specialist.(9) See id., 37 FLRA at 1422. We defer to these factual findings for the reasons set forth in Lowry Air Force Base, discussed above in Section VI. Consequently, we deny the Agency's exception.
IX. The Award Of Compensatory Damages Is Inconsistent With The Civil Rights Act Of 1991
A. Agency's Contentions
The Agency argues that the Arbitrator erred in awarding compensatory damages because: (1) he erred in finding that the Agency intentionally discriminated against the grievant; and (2) even if such a finding were sustained, no objective evidence was produced showing that the grievant suffered harm entitling her to compensatory damages.
B. Union's Opposition
The Union contends that the record need not contain objective evidence of intentional discrimination. In the Union's view, the Agency confuses the standard for determining punitive damages with compensable damages. The Union points to numerous record references to emotional pain suffered by the grievant as support for an award of compensatory damages.
C. Analysis and Conclusions
The Agency's exception to the Arbitrator's award of compensatory damages provides the Authority with an opportunity to address, for the first time, the requirements regarding awards of compensatory damages by arbitrators under section 102(a) of the Civil Rights Act of 1991, 105 Stat. 1071, Pub. L. No. 102-166, codified at 42 U.S.C. § 1981a (section 102).
Section 102(a) authorizes an award of compensatory damages as part of the make-whole relief for intentional discrimination in violation of Title VII. Compensatory damages are available to Federal employees who seek redress for intentional discrimination through an administrative process. McAdams v. Reno, 858 F. Supp. 945, 950-51 (D. Minn. 1994) (citing Jackson v. United States Postal Service, EEOC Appeal No. 10923399 (1992)); see also Totten v. United States Postal Service, 68 MSPR 255, 257 n.2 (1995) (citing Hocker v. Department of Transportation, 63 MSPR 497, 505 (1994)).
An award of compensatory damages must be based on objective evidence. See Lawrence v. Runyon, EEOC Appeal No. 01952288, slip op. at 4-5 (1996) (Lawrence). In Lawrence, the Equal Employment Opportunity Commission defined objective evidence to include:
statements from the complainant concerning his/her emotional pain or suffering, inconvenience, mental anguish, loss of enjoyment of life, injury to professional standing, injury to character or reputation, injury to credit standing, loss of health, and any other nonpecuniary losses . . . . Statements from others, including family members, friends, and health care providers could address the outward manifestations or physical consequences of emotional distress, including sleeplessness, anxiety, stress, depression, marital strain, humiliation, emotional distress, loss of self-esteem, excessive fatigue, or a nervous breakdown. Objective evidence also may include documents indicating a complainant's actual out-of-pocket expenses related to medical treatment, counseling, and so forth, related to the injury allegedly caused by discrimination.
Id. at 5. The grievant's own testimony, along with the particular circumstances of the case, may be sufficient to sustain her burden of proving damages due to emotional distress. See id. (citing U.S. v. Balistrieri, 981 F.2d 916, 932 (7th Cir. 1992), cert. denied, 510 U.S. 812 (1993) (compensatory damages in context of claim of housing discrimination)); EEOC Compliance Manual, Notice on Compensatory and Punitive Damages, N:6071, N:6081 (citing Williams v. Trans World Airlines, Inc., 660 F.2d 1267, 1273 (8th Cir. 1981); see also Phillips v. Hunter Trails Community Association, 685 F.2d 184, 190-91 (7th Cir. 1982). However, where no objective evidence has been introduced upon which the fact-finder may conclude that the employee has suffered emotional distress as a result of an employer's discriminatory action, the employee may not recover damages. See Gunby v. Pennsylvania Electric Company, 840 F.2d 1108, 1121-22 (3d Cir. 1988), cert. denied, 492 U.S. 905 (1989). Further, the amount of damages awarded in a specific case may be affected by the absence of supporting evidence. Lawrence, slip op. at 5.
The Arbitrator's award of compensatory damages is legally deficient because he has not set forth the necessary and specific findings, including the identification of objective evidence as defined in Lawrence above, which supports the award. In particular, the Arbitrator has not pointed to any testimonial or documentary evidence that establishes that the grievant is entitled to compensatory damages. Rather, he based the award of compensatory damages on the circumstances of the case, i.e., the fact that the grievant was faced with the option of surrendering her rights or launching a lengthy adversarial process against individuals in Agency management who retain authority over her career. These findings are not sufficient to sustain an award of compensatory damages. Consequently, we remand that part of the award concerning compensatory damages to the parties to have them obtain a clarification of the award by the Arbitrator, who shall be guided by the criteria discussed in this section of the decision.(10)
X. Decision
The Agency's first six exceptions, discussed in Sections III through VIII, are denied. The Agency's seventh exception, discussed in Section IX, concerning compensatory damages, is granted. The award is remanded to the parties with the direction that they request that the Arbitrator clarify the award of compensatory damages in the amount of $5000, consistent with the guidance provided in Section IX of this decision.
APPENDIX
Article 10 states in pertinent part:
PROHIBITED PERSONNEL PRACTICES
Article 10
Section 1:
In accordance with 5 U.S.C. § 2302, the Office agrees that any employee who has authority to take, direct others to take, recommend or approve any personnel action, shall not, with respect to such authority--
(1) discriminate for or against any employee or applicant for employment--
(a) on the basis of race, color, religion, sex, or national origin, as prohibited under section 717 [of] the Civil Rights Act of 1964 (42 U.S.C. § 2000e-16).
. . . .
(6) grant any preference or advantage not authorized by law, rule, or regulation to any employee or applicant for employment (including defining the scope or manner of competition or the requirements for any position) for the purpose of improving or injuring the prospects of any particular person for employment.
FOOTNOTES:
(If blank, the decision does not
have footnotes.)
1. The pertinent text of Article 10 is set forth in the Appendix to this decision.
2. As discussed more fully below in Section III, although the Arbitrator stated at one point that the Agency failed to rebut the prima facie case, his subsequent discussion shows that he actually found that the Agency met its burden in establishing rebuttal.
3. Outside the context of Title VII cases, the Authority has looked to whether the award is "directly responsive" to the issue before the arbitrator. E.g., U.S. Department of Defense, Defense Logistics Agency and American Federation of Government Employees, Local 2693, 50 FLRA 212, 217 (1995); U.S. Department of Veterans Affairs, Medical Center, Lexington, Kentucky and National Association of Government Employees, Local R5-184, 47 FLRA 498, 503 (1993).
4. Therefore, United States Customs Service is inapposite. We note, however, that the statistical comparators discussed by the Arbitrator do not comport with well-settled law. Statistics on hiring and promotion patterns "may be used to establish an inference of discrimination as an element of plaintiff's prima facie case, or to demonstrate that an employer's stated nondiscriminatory reason for its action is in reality a pretext." Carter v. Ball, 33 F.3d 450, 456 (4th Cir. 1994) (Carter). The relevant comparison to be made in either case is between the percentage of minority employees and the percentage of potential minority applicants in the qualified labor pool. See, e.g., Hazelwood School District v. United States, 433 U.S. 299, 312 (1977) (quoting International Brotherhood of Teamsters v. United States, 431 U.S. 324, 340 (1977) ("[S]tatistics . . . come in infinite variety . . . . [T]heir usefulness depends on all of the surrounding facts and circumstances.")); Carter, 33 F.3d at 456 (same rule applied in disparate treatment case).
5. Therefore, the cases relied upon by the Agency are inapposite. Indeed, consistent with those cases, the Arbitrator considered all of the evidence, not just evidence of preselection, in finding intentional discrimination. See, e.g., Blue v. United States Department of the Army, 914 F.2d 525, 541 (4th Cir. 1990), cert. denied sub nom., Chambers v. United States Department of the Army, 499 U.S. 959 (1991) (even if plaintiff's testimony concerning preselection is accurate, "it would not, without more, indicate that she was the victim of racial discrimination") (emphasis added); Nolette v. Garrett, EEOC Appeal No. 01912035, slip op. at 13 (1991) (EEOC found claim of racial discrimination, without more, not supported by evidence that merely shows favoritism played a role in the decision-making process).
6. FPM Chapter 335, Appendix A applies here because it was in existence at the time of the actions giving rise to the grievance and the Agency's rights would be impaired were we not to apply it. See U.S. Department of Transportation, Federal Aviation Administration, Little Rock, Arkansas, 51 FLRA 216, 224-25 (1995) (discussing Landgraf v. USI Film Products, U.S. , 114 S. Ct. 1483, 1501-05 (1994)).
7. We note that the case before us is distinguishable from U.S. Department of Health and Human Services, Social Security Administration, Kansas City, Missouri, and American Federation of Government Employees, Local 1336, 37 FLRA 816, 823 n.* (1990) (SSA) where the Authority reviewed the basis for an arbitrator's "but for" finding. In making the "but for" finding in SSA, the arbitrator evaluated and interpreted the intent of provisions in the parties' agreement. Here, the award does not concern the Arbitrator's evaluation and interpretation of the intent underlying any provision in the parties' agreement. Accordingly, we leave reexamination of SSA for a case that presents the same facts as present there.
8. Cf. U.S. Department of Health and Human Services, Social Security Administration, San Juan, Puerto Rico and American Federation of Government Employees, Local 2608, 46 FLRA 1134, 1143 (1993) (Authority found award contravened management's right to select under section 7106(a)(2)(C) because the only basis on which the arbitrator found that the grievant was entitled to a promotion was "the need to restore equity", i.e., he failed to make a "but for" finding); Veterans Administration Medical and Regional Office Center of Wilmington, Delaware and Laborers' International Union of North America, AFL-CIO, Federal Local No. 1154, 32 FLRA 701, 705 (1988) (although arbitrator found that agency's decision to pass over the grievant and select a less experienced, less skilled, and less qualified employee was motivated "at least in part" by the gender of the employee, award is deficient as contrary to section 7106(a)(2)(C) because arbitrator did not find that the grievant would have been selected for the promotion except for the agency's discriminatory action); Department of Health and Human Services, Social Security Administration and American Federation of Government Employees, AFL-CIO, Local 3615, 30 FLRA 562, 569 (1987) (even though arbitrator found that agency discriminated against grievant because of his national origin, Authority found award contrary to section 7106(a)(2)(C), because arbitrator did not make "but for" finding).
9. In cases arising under Title VII, when retroactive promotion and backpay are sought, relief is available only if the employee would have received the promotion had he or she not been the victim of discrimination. Day v. Mathews, 530 F.2d 1083, 1084-85 (D.C. Cir. 1976). In this regard, the employer has the burden of proving, by clear and convincing evidence, that the employee's qualifications were such that he or she would not have been selected even absent discrimination. Id.; Dougherty v. Barry, 869 F.2d 605, 614 (D.C. Cir. 1989). Because it does not alter our disposition of this case, we need not decide here whether, and to what extent, the burdens assigned to parties concerning the issue of monetary relief in Title VII cases also apply to backpay cases that arise under the Statute. Under either the Statute or Title VII, the Agency did not persuade the Arbitrator that the grievant would not have received the promotion but for the discrimination. That is, the Agency did not persuade the Arbitrator that had it not discriminated against the grievant, she would not have been chosen for the position because her qualifications were inferior to those of the other applicants. See Section VII C., above.
10. A remand to the parties in these circumstances is consistent with the manner in which the Authority reviewed, for the first time, exceptions to awards concerning attorney fees. See International Brotherhood of Electrical Workers and United States Army Support Command, Hawaii, 14 FLRA 680, 683 (1984) (the Authority set forth the criteria against which awards of attorney fees would be measured for legal sufficiency).