[ v45 p437 ]
45:0437(35)AR
The decision of the Authority follows:
45 FLRA No. 35
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator Amedeo Greco filed by the Agency under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. The Union filed an opposition to the Agency's exceptions.
The Arbitrator found that the Agency had failed to select the grievant for promotion in retaliation for having filed a racial discrimination class action lawsuit against the Agency. He ordered the grievant retroactively promoted to the position with backpay and awarded the grievant reasonable attorney fees.
We conclude that the Agency fails to establish that the award is deficient. Accordingly, we will deny the Agency's exceptions to the award.
II. Background and Arbitrator's Award
The grievant, a black, is employed by the Agency as a GS-12 bank examiner. In 1981, he and other black employees of the Agency filed a class action lawsuit against the Agency. The suit challenged the lawfulness of the Agency's progress evaluation (PE) promotional examination used for promotions to GS-11 bank examiner positions. The suit claimed that the examination had a racially disparate effect on blacks.
In 1986, a Federal district court judge found that the PE exam had an unlawful disparate impact on blacks. In 1989, the U.S. Court of Appeals for the Seventh Circuit remanded the case to the district court to determine whether there was a legitimate business purpose in using the exam and whether the Agency's actions were violative of Wards Cove Packing Co. v. Atonio, 109 S. Ct. 2115 (1989). In remanding the case, the court agreed with the district court that the plaintiffs had proved disparate impact and noted that the evidence was "suggestive of racial bias." Award at 6 (quoting Allen v. Seidman, 881 F.2d 375 (7th Cir. 1989)).
The parties thereafter settled the matter with a payment of $623,826 in backpay and interest to the plaintiffs and an award of $416,000 in attorney fees and costs to the plaintiffs' attorneys. The settlement was approved by a final order of the district court on January 5, 1990.
In December 1989, the grievant applied for the position of GS-13 bank examiner. He and five other applicants were rated qualified for the position and were referred to the selecting official, Regional Director George Masa. Masa selected a white employee for the position, and the grievant filed a grievance claiming, among other things, that the Agency did not select him for promotion because of his race and in retaliation for his participation as the named plaintiff in the class action lawsuit against the Agency over the PE exam. The grievance was not resolved and was submitted to arbitration on the following stipulated issue:
Did the Agency discriminate against [the] grievant . . . on the basis of race or reprisal in the selection for a Grade 13 Bank Examiner position on vacancy number 89-E-F470 and, if so, what is the appropriate remedy.
Award at 1-2.
The Arbitrator noted that both parties generally agreed on the broad legal standards to be applied in resolving the matter and cited McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) and Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981). The Arbitrator also noted that the Agency agreed that the grievant's participation in the lawsuit over the PE exam was protected equal employment opportunity (EEO) activity. The Arbitrator concluded that the grievant had established a prima facie case of retaliation and racial discrimination because the record showed that the failure to select the grievant for promotion occurred within a pattern and practice of previous discrimination. The Arbitrator found that a pattern and practice of discrimination was supported by the findings of the district court and the appeals court in the grievant's lawsuit and by the findings of a U.S. magistrate, subsequently adopted by the U.S. district court, that the Agency had retaliated against another employee for participating as a plaintiff in the grievant's lawsuit.
Although the Arbitrator found that the grievant had established a prima facie case, he found that the Agency had proffered a legitimate, nondiscriminatory, business reason for failing to select the grievant. The Arbitrator noted that the position of GS-13 bank examiner is one of the most important in the Agency and that the Agency maintained that the selected employee was better qualified for the position. In concluding that the Agency had stated a legitimate, nondiscriminatory, business reason for its selection, the Arbitrator primarily relied on the fact that the selected employee had consistently received higher performance appraisals than those of the grievant. The Arbitrator gave little weight to errors that the grievant had made in a bank examination in October 1989 and to a largely negative performance review in December 1989(1) because he found that these matters were not relied on by the Agency in its selection decision. The Arbitrator also minimized the effect of the grievant's failure to maintain computer records on the Agency's selection decision.
Accordingly, the Arbitrator stated that the burden of proof shifted back to the grievant to show that the Agency's stated reason for its selection was a pretext and that the reason the grievant was not selected was in retaliation for his protected EEO activities or because of racial discrimination. The Arbitrator noted that the question of pretext is a question of motive. The Arbitrator explained that "because there is no 'smoking gun' here which clearly establishes the retaliatory, discriminatory motive charged to the Agency[,] . . . it is necessary to look at all of the circumstances to determine whether [the grievant] has met his burden of proof." Award at 15.
Although the Arbitrator determined that the Agency's failure to select the grievant was not based on racial discrimination, he concluded that the Agency refused to promote the grievant in retaliation for his participation in the lawsuit contesting the PE exam. He found that numerous circumstances supported this conclusion:
the Agency's failure to follow the procedural requirements spelled out in Article 14 [of the collective bargaining agreement]; the placing of too much emphasis on [the selected employee's] intra-Agency computer expertise even though that is not part of the listed job requirements; the inordinate and improper weighing given to the length of [the selected employee's] evaluation; the failure of key management personnel to remember who said what to whom as to whether [the grievant] should be promoted; the failure to take into account [the grievant's] greater willingness to travel and his greater experience in being an Examiner-in-Charge; the unfairness of Lazar's [the former supervisor of the grievant and the selected employee] supervisory evaluation; the failure to ask Lazar for his recommendation when customary office practice called for same; and the failure to properly take into account [the grievant's] varied work experience, including his review details.
Id. at 25-26. Although the Arbitrator found that retaliation was a "harsh explanation" for the circumstances of the grievant's failure to be selected, he concluded that "personal antagonism [was] no stranger here . . . ." Id. at 25. He noted that the Agency had engaged in racial discrimination in connection with the PE exam; that the Agency had retaliated against another employee because of his participation in the grievant's lawsuit; that it had retaliated against the grievant and other black employees by assigning them to an "enhancement program" after they failed the PE exam; and that in the arbitration case of Joseph J. Gunnell,(2) the Agency discriminated against the grievant in that case by refusing to promote him because of his union activities. In the Arbitrator's view, the opinion of the U.S. magistrate in the removal case of one of the other plaintiffs in the grievant's lawsuit "aptly summarize[d]" this case:
Under the circumstances, it would have seemed most prudent of the F.D.I.C. to have treated plaintiff, his problematic voucher, and his discharge with the greatest of care, given his status as a litigant in a very far-reaching lawsuit against the F.D.I.C. Instead, the F.D.I.C. was not cautious or careful, which readily suggests it wanted plaintiff out.
Id. at 26 (quoting magistrate's opinion).
In concluding that the Agency's articulated reason for its selection was a pretext for retaliating against the grievant, the Arbitrator rejected the Agency's argument that the selected employee was the superior candidate. The Arbitrator found to the contrary that when computer skills are not considered, the grievant was the superior candidate and "should have been awarded the position in dispute." Id. at 29.
As a remedy, the Arbitrator ordered that the Agency make the grievant whole by promoting him to the GS-13(3) position in dispute with backpay and benefits retroactive to the effective date of the selected employee's promotion. With respect to the Union's request for reasonable attorney's fees, the Arbitrator granted the request "pursuant to Article 10 of the contract and applicable law." Id. at 29-30. The Arbitrator granted the Union 30 days to submit a bill to the Agency and to him, and he stated that he would resolve any disputes over attorney fees in a supplemental award.
III. Agency's First Exception
A. Positions of the Parties
1. The Agency
The Agency contends that the award is contrary to management's right to select under section 7106(a)(2)(C) of the Statute and Federal Personnel Manual (FPM) chapter 335, subchapter 1-4, Requirement 4.
The Agency maintains that management's right to make selections for promotion under section 7106(a)(2)(C) and FPM chapter 335, subchapter 1-4, Requirement 4 may be constrained and an agency ordered to select a particular employee for promotion only if the arbitrator finds that the employee was affected by an improper agency action that directly resulted in the Agency's failure to select that employee for promotion. The Agency asserts that although the Arbitrator found that certain actions by the Agency were discriminatory, the Arbitrator did not find that the grievant would have been selected for the GS-13 bank examiner position but for the unwarranted actions.
2. The Union
The Union contends that the Arbitrator made the necessary connection between the Agency's retaliation against the grievant and the Agency's failure to select him for promotion. The Union maintains that the award is replete with specific findings and conclusions that the Agency decision not to select the grievant for promotion to GS-13 was in retaliation for his protected EEO activity. The Union asserts that the Arbitrator's findings are particularly sufficient in view of the Authority's position that the necessary connection may be inferred or implied from the record and the award and that an arbitrator is not required to use certain words. The Union further claims that in discrimination cases, the Authority has found the requirement of a direct connection satisfied when the employee establishes a prima facie case and the arbitrator determines that the agency's articulated reason for not selecting the employee was a pretext for discrimination. The Union argues that in this case the Arbitrator found that the grievant established a prima facie case of discrimination and that the Agency's articulated reason for not selecting the grievant was a pretext for illegal reprisal. Thus, the Union asserts that the requirement of a direct connection was satisfied and the Agency's exception should be denied.
B. Analysis and Conclusions
We conclude that the Agency fails to establish that the award is contrary to management's right to select under section 7106(a)(2)(C) of the Statute and FPM chapter 335, subchapter 1-4, Requirement 4.
Both section 7106(a)(2)(C) and FPM chapter 335, subchapter 1-4, Requirement 4 provide that management has the right in filling positions to select from a group of properly ranked and certified candidates for promotion or from any other appropriate source. When an arbitrator is not enforcing an arrangement, management's right to make selections for promotion can be abridged by an award of an arbitrator only when the arbitrator finds a direct connection between improper agency action and the agency's failure to select a specific employee for promotion. For example, National Treasury Employees Union and U.S. Department of Health and Human Services, Family Support Administration, 35 FLRA 501, 508 (1990) (Family Support Administration). The Agency contends that the Arbitrator failed to find a direct connection between the Agency's reprisal against the grievant and the Agency's failure to select the grievant for promotion. We disagree.
We have held with respect to awards of retroactive promotions with backpay by arbitrators under the Back Pay Act that we will review these awards for evidence of a finding by the arbitrator of a causal connection between an unwarranted agency personnel action and an agency's failure to promote an employee and not for a specific recitation of certain words and phrases. For example, American Federation of Government Employees, Local 31 and U.S. Department of Veterans Affairs Medical Center, Cleveland, Ohio, 41 FLRA 514, 518 (1991). We see no reason for approaching awards of promotions by arbitrators in relation to section 7106(a)(2)(C) and FPM chapter 335 any differently.
In this case, we find that the Arbitrator made the required finding of a direct connection between the grievant's failure to be selected for promotion and the Agency's reprisal against the grievant for protected EEO activities. The Arbitrator specifically found that absent consideration of computer skills, the grievant was the superior candidate and "should have been awarded the position in dispute." Award at 29. Moreover, we find that in rejecting the Agency's articulated reason for selecting the employee as a pretext for reprisal against the grievant because he had filed the class action lawsuit against the Agency over the PE exam, the Arbitrator effectively determined that the grievant would have been selected for promotion in the absence of the prohibited reprisal. See American Federation of Government Employees, Local 3446 and U.S. Department of Health and Human Services, Social Security Administration, 43 FLRA 467, 475 (1991) (arbitrator made the finding required by section 7106(a)(2)(C) to order grievant selected because the arbitrator found that the agency's reasons for failing to select the grievant were a pretext for prohibited discrimination); U.S. Department of the Treasury, Customs Service, Pembina District, Pembina, North Dakota and National Treasury Employees Union, Chapter 157, 41 FLRA 1420, 1426 (1991) (arbitrator effectively made the required finding that the agency's discrimination against the grievant directly resulted in the grievant's failure to be promoted); Family Support Administration, 35 FLRA at 509 (arbitrator made the finding required by section 7106(a)(2)(C) to order the grievant promoted when he determined that the agency would not have found the grievant unqualified absent his protected activity).
Accordingly, we will deny the Agency's exception.
IV. Agency's Second Exception
A. Positions of the Parties
1. The Agency
The Agency contends that the award is contrary to section 7106(a) of the Statute.
The Agency claims that the Arbitrator substituted his judgment for that of the supervisor of both the grievant and the selected employee when he found that the performance appraisals of both were unfair. The Agency argues that the Arbitrator had no basis on which to substitute his judgment for that of management regarding either the grievant's or the selected employee's ability to perform at the grade 12 and grade 13 levels.
The Agency also claims that the Arbitrator improperly interfered with the exercise of management's rights under section 7106(a) to establish the qualifications for the GS-13 bank examiner position and to determine whether the grievant or the selected employee better met those qualifications. In particular, the Agency argues that the Arbitrator improperly interfered with the exercise of management's rights by rejecting the selecting official's reliance on the selected employee's computer expertise as a factor in the selection process. The Agency also argues that by totally discounting the substance of the narrative comments on the appraisals of the grievant and the selected employee, the Arbitrator rejected the Agency's selection criteria to determine qualifications for the GS-13 bank examiner position.
2. The Union
The Union contends that the Agency's exception is nothing more than an attempt to relitigate this case before the Authority. The Union asserts that the Agency has mischaracterized the award. The Union maintains that the Arbitrator was presented with the issue of whether the Agency's assertion that the selected employee was better qualified than the grievant was a pretext for retaliating against the grievant. The Union argues that this case did not concern what performance ratings the grievant or the selected employee should have received, as the Agency suggests. The Union asserts that, contrary to the Agency's arguments, the Arbitrator did not alter the position description of the GS-13 bank examiner position and did not substitute his judgment for that of management concerning the qualifications of the candidates. In the Union's view, rather than impermissibly substituting his judgment for that of management in evaluating the performance of employees, the Arbitrator reviewed the evidence and simply concluded that the Agency's proffered explanation for not selecting the grievant was a pretext for reprisal.
B. Analysis and Conclusions
We conclude that the award is not contrary to section 7106(a) of the Statute.
We find that the Agency fails to establish that the award interferes with the exercise of its management rights under section 7106(a) to establish and apply either selection criteria or qualifications for the GS-13 bank examiner position or to appraise the prior performance of either the grievant or the selected employee. In our view, the Arbitrator reviewed the selection action and simply determined that the Agency's justification for its selection for the bank examiner position was a pretext and that the failure to select the grievant was in reprisal and retaliation for his protected EEO activities. The Agency has not shown how this determination interferes with its rights to establish and apply selection criteria and qualifications or to appraise the performance of its employees. The Arbitrator's determination and his award sustaining the grievance do not require the Agency to take or refrain from taking any actions pursuant to those specified management rights. Consequently, the Agency's exception provides no basis for finding the award deficient. See Department of Justice, Federal Prisons Systems, El Reno Federal Correctional Institution, El Reno, Oklahoma and American Federation of Government Employees, Council of Prisons Locals, Local No. 171, 35 FLRA 329, 338-39 (1990) (FCI, El Reno) (award was not contrary to management's rights because the arbitrator's determination that the grievants were not inattentive, as charged, did not require the agency to take or refrain from taking any action pursuant to its management rights to assign and direct employees and to assign work)
Accordingly, we will deny the Agency's exception.
V. Agency's Third Exception
A. Positions of the Parties
1. The Agency
The Agency contends that the Arbitrator exceeded his authority. The Agency asserts that the Arbitrator resolved issues that were not submitted by the parties for resolution when he found that the Agency failed to follow the procedures of Article 14 of the parties' collective bargaining agreement and to fairly appraise the performance of the grievant and the selected employee.
The Agency claims that the stipulated issue was limited to reprisal and race discrimination and that the parties explained to the Arbitrator that the stipulated issue excluded any independent violation of the collective bargaining agreement. The Agency maintains that by stipulating to the narrow issue of reprisal and race discrimination the parties precluded the Arbitrator from considering the alleged unfairness of the grievant's performance appraisal and the Agency's alleged failure to follow Article 14 of the agreement. The Agency argues that by considering these issues, the Arbitrator exceeded his authority and the award is deficient. In addition, the Agency argues that the Arbitrator incorrectly interpreted Article 14 in finding a violation.
2. The Union
The Union disputes that the Arbitrator resolved issues that were not submitted to arbitration. The Union maintains that the Arbitrator resolved the submitted issue of reprisal and that the violations of the agreement and the unfairness in performance appraisals were directly relevant to the finding of pretext. The Union argues that its presentation of evidence concerning alleged violations of the agreement were solely for the purpose of proving retaliation and race discrimination.
B. Analysis and Conclusions
We conclude that the Agency fails to establish that the Arbitrator resolved an issue that was not submitted.
The parties submitted to the Arbitrator the following stipulated issue:
Did the Agency discriminate against [the] grievant . . . on the basis of race or reprisal in the selection for a Grade 13 Bank Examiner position . . . and, if so, what is the appropriate remedy.
Award at 1-2. As his award, the Arbitrator ruled, in pertinent part, as follows:
1. That the Agency improperly retaliated against grievant . . . in the selection for a Grade 13 Bank Examiner position . . . .2. That to rectify said improper action, the Agency shall take the remedial action noted above.
Id. at 30. In our view, the Arbitrator's award is directly responsive and properly confined to the issue as stipulated by the parties. We agree with the Union that the Arbitrator appropriately determined that the Agency's alleged failure to follow the selection process set forth in Article 14 of the parties' collective bargaining agreement and the alleged unfairness to the grievant based on a comparison of his past performance appraisal and the performance appraisal of the selected employee were matters relevant to the stipulated issue of whether the Agency discriminated against the grievant. We find that the Agency's claim to the contrary constitutes nothing more than disagreement with the Arbitrator's reasoning in reaching his conclusion on the prescribed issue of whether the Agency discriminated against the grievant. Such disagreement provides no basis for finding the award deficient. See FCI, El Reno, 35 FLRA at 334.
To the extent that the Agency is claiming that the award is deficient because the Arbitrator incorrectly interpreted Article 14 of the collective bargaining agreement, we view this as a contention that the award fails to draw its essence from the collective bargaining agreement. We will find an award deficient on this ground when an appealing party establishes that the award: (1) is so unfounded in reason and fact an so unconnected with wording and purposes of the collective bargaining agreement as to manifest an infidelity to the obligation of the arbitrator; (2) does not represent a plausible interpretation of the agreement; (3) cannot in any rational way be derived from the agreement; or (4) evidences a manifest disregard of the agreement. For example, U.S. Department of the Army, Fort Polk, Louisiana and National Association of Government Employees, Local R5-18, 44 FLRA 1548, 1558 (1992) (Ft. Polk). The Agency has not established that the Arbitrator's interpretation and application of the agreement to find a violation disregards the agreement or is irrational, implausible, or unfounded. Accordingly, the Agency provides no basis for finding that the award fails to draw its essence from the agreement.
Accordingly, we will deny the Agency's exception.
VI. Agency's Fourth Exception
A. Positions of the Parties
1. The Agency
The Agency contends that the award is based on nonfacts. The Agency asserts that the award is deficient because the Arbitrator identified certain central facts in finding circumstantial evidence of pretext and that certain of these findings are clearly erroneous, but for which the Arbitrator would have reached a different result.
The Agency states that, in finding pretext, the Arbitrator extensively referred to the facts in the Gunnell arbitration case. The Agency notes that the Arbitrator specifically stated that Arbitrator Fletcher in the Gunnell case found that Regional Director Masa, the selecting official in this case, told Gunnell that his promotion would never be approved by the former regional director. The Agency asserts, however, that Masa was not the regional director at the time of the Gunnell dispute and that Arbitrator Fletcher correctly referred to Paul Rooney, who was regional director at that time. The Agency claims that the Arbitrator's mischaracterization of Regional Director Masa as being involved in the Gunnell case is critical because the bulk of the award is based on the motivation of responsible agency officials.
The Agency further states that, in finding pretext, the Arbitrator also erroneously found that the Agency failed to follow its customary procedure when it failed to consult Ernie Lazar, who was the supervisor of both the grievant and the selected employee. The Agency maintains that the failure to consult Lazar was not contrary to customary procedure because at the time of the selection process Lazar was no longer a supervisor and the Agency did contact Lazar's successor as supervisor.
The Agency also contends that the Arbitrator erroneously relied on the Agency's failure to take into account the grievant's greater willingness to travel. The Agency claims that this reliance is totally misplaced because a willingness to travel is irrelevant to selection for a GS-13 bank examiner position. The Agency also argues that in finding pretext, the Arbitrator erroneously found that the grievant's experience as an examiner-in-charge was greater than the experience of the selected employee. The Agency maintains that the grievant's experience was not greater and that the record clearly reflected the selected employee's experience. The Agency further argues that the favorable comments about the selected employee's experience as an examiner-in-charge show that the Arbitrator clearly erred in concluding that almost all of the favorable comments in the selected employee's performance appraisals pertained to computers.
In addition, the Agency argues that the Arbitrator erroneously found that the grievant's work history and details were more extensive than the work history and details of the selected employee and that the grievant had favorable evaluations on prior details. The Agency claims that the selected employee's work history and details were as extensive as, and in some respects more extensive than, those of the grievant and that the selected employee received more favorable evaluations than the grievant, who had received marginally satisfactory ratings with negative comments in several details prior to the selection action in dispute.
The Agency also argues that the Arbitrator erroneously concluded that certain deficient work of the grievant had not been brought to the Agency's attention until after the decision not to select the grievant and, therefore, could not be given much weight as a basis for the nonselection. The Agency claims that, to the contrary, the grievant's deficient performance in 1989 was brought to the attention of the deputy regional director as part of the selection process. The Agency also claims that the Arbitrator improperly minimized the grievant's deficiencies with respect to maintaining computer records. The Agency further argues that in finding pretext, the Arbitrator erroneously relied on the failure of key agency officials to remember what role they played in the selection process. In the Agency's view, this failure leads not to an inference of pretext, but to an inference that there was no reprisal and that the selection was just one of many at the time.
2. The Union
The Union contends that this exception constitutes nothing more than disagreement with the Arbitrator's findings of fact and provides no basis for finding the award deficient. Specifically, the Union argues that the Arbitrator's "minor error" with respect to the identity of the regional director in the Gunnell case was not a central fact underlying the award such that a different result would have been reached. Union's Opposition at 24. The Union also argues that the other asserted nonfacts likewise provide no basis for finding the award deficient. The Union asserts that these matters relate to the Arbitrator's conclusions and do not constitute objectively ascertainable mistakes of fact.
B. Analysis and Conclusions
We conclude that the Agency fails to establish that the award is deficient because it is based on nonfacts.
We will find an arbitration award deficient because it is based on a nonfact when the appealing party establishes that the central fact underlying the award is clearly erroneous, but for which a different result would have been reached. For example, Ft. Polk, 44 FLRA at 1557. We are not persuaded that the Agency's exception provides a basis for finding the award deficient.
First, we note that a number of the asserted nonfacts were part of the Arbitrator's determination that the Agency had articulated a legitimate, nondiscriminatory business reason for failing to select the grievant. Specifically, notwithstanding the Arbitrator's minimizing of the grievant's errors in a bank evaluation in October 1989, of his largely negative detail evaluation in December 1989, and of his failure to properly maintain computer records, the Arbitrator, nevertheless, determined that the Agency had proffered a legitimate, nondiscriminatory basis for its action. Contrary to the claim of the Agency, the matters of the grievant's errors in a bank evaluation, his largely negative detail evaluation, and his failure to properly maintain computer records were not relied on by the Arbitrator in finding pretext, and, consequently, these matters provide no basis for finding that the award is based on nonfacts.
We similarly find that the Arbitrator's references to the Gunnell arbitration case provide no basis for finding the award deficient. In view of the Arbitrator's express statement that his determination of reprisal was based solely on the record before him and not on the record in Gunnell, we conclude that the Arbitrator's misapprehension as to the identity of the regional director in Gunnell does not establish that the award is based on a nonfact. We also find that the Agency's claim that the Arbitrator erroneously inferred pretext from the failure of key agency officials to remember what role they played in the selection process provides no basis for finding the award deficient. In our view, an inference does not constitute a fact and, consequently, the Agency fails to establish in this respect that the award was based on a nonfact. See, for example, U.S. Department of Health and Human Services, Social Security Administration, Baltimore, Maryland and American Federation of Government Employees, Local 1923, 39 FLRA 430, 435-36 (1991) (arbitrator's conclusion does not constitute a fact that would support an exception contending that the award was based on a nonfact).
Furthermore, we find that the Agency has not established that the remaining asserted nonfacts constituted the central fact or facts on which the Arbitrator's finding of reprisal was based.(4) In our view, the Arbitrator relied on circumstances more extensive than those identified by the Agency in this exception to determine that the grievant was subject to retaliation because of his protected EEO activities. In addition to the circumstances identified by the Agency that we have not already rejected as a basis for finding the award deficient, the Arbitrator based his award on the Agency's failure to follow the selection process requirements of Article 14 of the parties' collective bargaining agreement; the unfairness to the grievant of his performance appraisal and the performance appraisal of the selected employee; and the fact that the Agency previously had engaged in racial discrimination and retaliation. In sum, the Arbitrator concluded, based on the record as a whole, that the manner in which the Agency had handled the grievant's nonselection suggested reprisal and retaliation. Consequently, we are not persuaded that even if the Arbitrator's reliance on the remaining circumstances claimed by the Agency were clearly erroneous, the result would have been different. See Ft. Polk, 44 FLRA at 1557; Federal Deposit Insurance Corporation and National Treasury Employees Union, 35 FLRA 241, 247 (1990) (FDIC). In our view, the Agency is merely disagreeing with the Arbitrator's overall finding that the Agency failed to select the grievant in reprisal for his protected EEO activities, and such disagreement provides no basis for finding the award deficient. See Ft. Polk, 44 FLRA at 1557; FDIC, 35 FLRA at 247-48.
Accordingly, we will deny the Agency's exception.
VII. Agency's Fifth Exception
A. Positions of the Parties
1. The Agency
The Agency contends that the award of attorney fees is contrary to the Back Pay Act, 5 U.S.C. § 5596.
The Agency notes that the Authority has repeatedly held that an award of attorney fees under the Back Pay Act requires a fully articulated, reasoned decision setting forth the specific findings supporting the determination on each pertinent statutory requirement. The Agency asserts that the Arbitrator's award is not properly supported. The Agency maintains that the Arbitrator failed to address the applicable standards of 5 U.S.C. § 7701(g)(2) for an award of attorney fees in employment discrimination cases.
2. The Union
The Union contends that the award of fees is properly supported. The Union asserts that in a case of retaliation for prior protected EEO activities, the only articulation requirement under section 7701(g)(2) for awarding fees is that the Arbitrator set forth the specific findings supporting the determination of retaliation. The Union argues that the case precedent of the Authority requiring a fully articulated decision applies only to cases under section 7701(g)(1) and not to employment discrimination cases under section 7701(g)(2).
B. Analysis and Conclusions
We conclude that the Agency fails to establish that the determination of the Arbitrator that the grievant was entitled to an award of reasonable attorney fees is not properly supported as required by the Back Pay Act, 5 U.S.C. § 5596.
A threshold requirement for entitlement to attorney fees under the Back Pay Act is a finding that the grievant was affected by an unjustified or unwarranted personnel action that resulted in the withdrawal or reduction of the grievant's pay, allowances, or differentials. The Back Pay Act further requires that an award of fees must be: (1) in conjunction with an award of backpay to the grievant on correction of the personnel action; (2) reasonable and related to the personnel action; and (3) in accordance with the standards established under 5 U.S.C. § 7701(g). For example, United States Department of the Navy, Norfolk Naval Shipyard and American Federation of Government Employees, Local 4015, 34 FLRA 725, 728 (1990) (Norfolk Naval Shipyard).
Section 7701(g)(1), which applies to all cases except those of employment discrimination, requires that: (1) the employee must be the prevailing party; (2) the award of fees must be warranted in the interest of justice; (3) the amount of the fees must be reasonable; and (4) the fees must have been incurred by the employee. Id. Section 7701(g)(2) provides: "If an employee or applicant for employment is the prevailing party and the decision is based on a finding of discrimination prohibited under section 2302(b)(1) of this title, the payment of attorney fees shall be in accordance with the standards prescribed under section 706(k) of the Civil Rights Act of 1964 (42 U.S.C. 2000e-5(k))."(5) 5 U.S.C. § 7701(g)(2). The standards established under section 7701(g) further require a fully articulated, reasoned decision setting forth the arbitrator's specific findings supporting the determination on each pertinent statutory requirement, including the basis on which the reasonableness of the amount was determined when fees are awarded. Norfolk Naval Shipyard, 34 FLRA at 728.
When exceptions are filed to arbitration awards resolving requests for attorney fees under the Back Pay Act, the Authority's role is to ensure that the arbitrator has complied with applicable statutory standards. Id. Furthermore, when the exceptions concern the standards established under section 7701(g), the Authority applies the decisions of the Merit Systems Protection Board (MSPB) and the U.S. Court of Appeals for the Federal Circuit. Naval Air Development Center, Department of the Navy and American Federation of Government Employees, Local 1928, AFL-CIO, 21 FLRA 131, 154 (1986) (noting that the Conference Committee eliminated the provision of the version of the Civil Service Reform Act passed by the House that would have allowed the Authority to fashion standards to be applied in the award of attorney fees and that the Conference Committee adopted a substitute that was explained as providing that fees were to be awarded in conformance to standards applied in MSPB cases). In this case, the Arbitrator found that the Agency discriminated against the grievant when it failed to select him for the GS-13 bank examiner position in reprisal for protected EEO activities. We find on the basis of decisions of the MSPB that the standard established by section 7701(g)(2) applied to the grievant's request for an award of attorney fees and that the Arbitrator properly awarded fees under that standard.
In Bartel v. FAA, 30 MSPR 451, 457 (1986) (Bartel), the MSPB recognized that by its terms, section 7701(g)(2) applies to cases of discrimination on the basis of race, color, religion, sex, national origin, age, or handicapping condition as prohibited under section 2302(b)(1). The MSPB noted that discrimination in reprisal for protected EEO activities is prohibited under 5 U.S.C. § 2302(b)(9), but not under the exact terms of section 2302(b)(1). However, the MSPB found that, in the legislative history of the Civil Service Reform Act, Congress expressed an intent with respect to an award of attorney fees to apply the standards of Title VII of the Civil Rights Act of 1964 more broadly than expressly provided in the language of the Reform Act. Bartel, 30 MSPR at 457. The MSPB noted that Congress preserved "the right of the Board to award attorney fees under [the Title VII standard] whenever it finds the employee's rights under the laws prohibiting discrimination have been violated." Id. (quoting S. Rep. No. 95-969, 95th Cong., 2d Sess. 61 (1978)). "Thus, in construing the attorney fee provisions of the CSRA relating to violations of Title VII, the Board gives the words of the statute the broader meaning suggested in the legislative history of the CSRA and awards . . . fees . . . to an appellant who proves reprisal in violation of his rights under Title VII." Id.; accord Kelly v. Navy, 43 MSPR 430 (1990) (Kelly). Accordingly, because the Arbitrator found unlawful reprisal, the award of attorney fees is governed by section 7701(g)(2).
In applying the standard of section 7701(g)(2), the MSPB awards attorney fees whenever the employee prevails and there has been a finding of prohibited employment discrimination. For example, Kelly, 43 MSPR at 433; Bartel, 30 MSPR at 457. The MSPB holds that the employee need not otherwise establish that an award of fees is warranted. Kelly, 43 MSPR at 433. Courts interpret section 706(k) of the Civil Rights Act of 1964 as requiring an award of attorney fees to prevailing plaintiffs unless "special circumstances render such an award unjust." Barbara Lindemann Schlei & Paul Grossman, Employment Discrimination Law 1466-67 (2d ed. 1983) (citing Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400 (1968)).
In view of the interpretation and application of section 7701(g)(2) by the MSPB, we agree with the Union that an employee is normally entitled to an award of attorney fees when the employee prevails based on a finding of prohibited employment discrimination, including reprisals for EEO activities. Moreover, in view of the interpretation and application of section 7701(g)(2) by the MSPB, we hold that to award fees consistent with section 7701(g)(2), an arbitrator merely needs to articulate the finding of prohibited discrimination. We view the application of section 7701(g)(2) by the MSPB as requiring further articulation of the issue of entitlement only in cases where the arbitrator determines that special circumstances within the meaning of section 706(k) of the Civil Rights Act of 1964 render an award of fees to a prevailing employee unjust. We see no reason to require any further articulation of entitlement where the arbitrator awards fees based on a reasoned finding of prohibited employment discrimination. In this case, the grievant prevailed and the Arbitrator has clearly articulated the finding of discrimination on which he sustained the grievance. Accordingly, we find that the Arbitrator's determination that the grievant was entitled to an award of reasonable attorney fees is properly supported as required by the Back Pay Act and section 7701(g)(2).
The Agency's reliance on previous decisions of the Authority is misplaced. As noted by the Union, all previous cases have concerned requests for attorney fees under section 7701(g)(1) and did not address the separate requirements of section 7701(g)(2). Accordingly, we will deny the Agency's exception. In denying the exception, we note that in awarding a specified amount of fees to the grievant, the Arbitrator must articulate the basis on which he determines the reasonableness of the amount.
VIII. Decision
The Agency's exceptions are denied.
FOOTNOTES:
(If blank, the decision does not
have footnotes.)
1. The Arbitrator mistakenly stated the date of the review as 1990.
2. Although the Arbitrator cited the Gunnell arbitration case, he also emphasized that his finding of pretext was based "solely upon the present record and the inferences which should be drawn from it." Id. at 25 n.8.
3. The Arbitrator mistakenly directed the grievant's promotion to GS-14. In denying the exceptions, we correct the award to order the grievant's promotion to GS-13.
4. In sum, the remaining asserted nonfacts proffered by the Agency that we have not already rejected are: the Agency's failure
to consult Ernie Lazar; the Agency's failure to take into account the grievant's greater willingness to travel; the grievant's greater experience as an examiner-in-charge; the Arbitrator's conclusion that almost all the favorable comments in the selected employee's appraisals pertained to computers; and the Arbitrator's finding that the grievant's work history and details were more extensive than those of the selected employee.
5. Section 706(k) of the Civil Rights Act of 1964 provides, in pertinent part, as follows:
In any action . . . the court, in its discretion, may allow the prevailing party, . . . a reasonable attorney's fee as part of the costs . . . .