54:1197(105)AR - - NTEU and NTEU Chapter 48 and IRS, Southeast Region, Richmond District - - 1998 FLRAdec AR - - v54 p1197



[ v54 p1197 ]
54:1197(105)AR
The decision of the Authority follows:


54 FLRA No. 105

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

NATIONAL TREASURY EMPLOYEES UNION

AND

NATIONAL TREASURY EMPLOYEES UNION

CHAPTER 48

(Union)

and

U.S. DEPARTMENT OF THE TREASURY

INTERNAL REVENUE SERVICE

SOUTHEAST REGION

RICHMOND DISTRICT

(Agency)

0-AR-2995

_____

DECISION

September 29, 1998

_____

Before the Authority: Phyllis N. Segal, Chair; Donald S. Wasserman and Dale Cabaniss, Members.

I. Statement of the Case

This matter is before the Authority on exceptions to an award of Arbitrator Earle W. Hockenberry filed by the Union under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Agency filed an opposition to the Union's exceptions.

The Arbitrator denied the grievance, determining that the Agency's failure to select the grievant for promotion was not based on sex discrimination. For the following reasons, we deny the Union's exceptions.

II. Background and Arbitrator's Award

The grievant, a female Revenue Representative, applied for the newly created position of a Dyed Fuel Compliance Officer. The grievant was rated first on the Best Qualified List (BQL), but was not selected for the position. Instead, the Agency selected the second candidate on the BQL, a man. The Union grieved the failure of the Agency to select the grievant, claiming that her non-selection was based on sex discrimination in violation of the parties' collective bargaining agreement; the Civil Rights Act of 1964, as amended; and the prohibited personnel practices set forth in 5 U.S.C. º 2303(b). The grievance was unresolved and submitted to arbitration. Before the Arbitrator, the parties stipulated the following issues to be resolved:

1. Was the agency's non-selection of the grievant for promotion . . . based on sex discrimination?

2. If so, what should be the remedy?

Award at 2.

Based on the parties' arguments, the evidence presented, and the testimony of numerous witnesses, the Arbitrator denied the grievance, finding that the Agency's failure to select the grievant was not based on sex discrimination.

Initially, the Arbitrator found that the Union made "a prima facie showing of sex discrimination[.]" Id. at 9. The Arbitrator then, shifting the burden to the Agency "to show that its reasons for selecting the male applicant over the grievant were non-discriminatory[,]" concluded that the Agency's justification for its selection of the male applicant was "reasonable." Id. at 9, 10. In reaching that conclusion, the Arbitrator relied on the testimony of the selecting official who stated that although the grievant and the male applicant were tied for number one in the interview, the selectee was chosen over the grievant "because of his previous experience in the Army dealing with petroleum products[.]" Id. at 10. Rejecting the Union's claims that the grievant had more experience than the selectee in other aspects of the position to which the Agency should have given greater weight, the Arbitrator found that the Agency was "entitled to use its judgment in deciding which of [the] four candidates has the combination of knowledges, skills, and abilities that most closely meets its needs, providing it does so in a non-discriminatory manner." Id.

Finding that the Agency's proffered reason for selecting the male applicant was reasonable, the Arbitrator then shifted the burden back to the Union to show that that reason was a "pretext[] that mask[s] a discriminatory intent." Id.

First, the Arbitrator addressed the Union's claims that there were irregularities in the ranking process demonstrating that the Agency acted with discriminatory intent. In doing so, the Arbitrator considered the testimony of the ranking official, as well as the selecting official and members of the interview panel. The Arbitrator, while noting that there were "unexplained aspects of the ranking process[,]" found that the grievant still received a top rating and that the Union offered "no evidence that [the selectee's] rating should have been so much lower that he would have dropped out of the top four." Id. at 10. According to the Arbitrator, the Agency was "entitled to choose any of the four [b]est [q]ualified candidates, and to use its judgment about what aspects of the job and of [the] applicants' backgrounds were most important in distinguishing among the four." Id.

Second, the Arbitrator addressed the Union's contention that the selectee's petroleum experience was not relevant to performing the duties of the position because the Agency had chosen a male applicant in another location without such experience. The Arbitrator found that this argument was without merit because no evidence was presented as to how the backgrounds and experience of the candidates in the other location compared to one another.

Third, the Arbitrator addressed the remarks that the Union claimed demonstrated "an [Agency] anti-female bias," and determined that those remarks did not establish pretext.(1) Id. Relying on testimony of another woman who attended the initial briefing where comments were made, the Arbitrator found that the comments were made by other attendees and not by any management official. With respect to the comments allegedly made by a member of the interview committee, the Arbitrator found that those comments were disputed, and even if they were made, the member's explanation--that he was attempting to ensure that the grievant understood what was involved in the position being sought--was "reasonable and credible." Id. at 11. The Arbitrator also noted that the member "nevertheless ranked the grievant at the top of [the] heap[.]" Id. Finally, with respect to the comments allegedly made by the third-step grievance hearing official, the Arbitrator again found that those comments were disputed, but nevertheless, they were made "long after the selection process was complete and by someone who had no involvement in that process." Id.

Based on these findings, the Arbitrator concluded that the Union failed to meet its burden to show that the Agency's proffered reason for selecting the male candidate--his prior experience with petroleum products--was a pretext that masked a discriminatory intent on the part of the Agency. Thus, the Arbitrator denied the grievance.

III. Positions of the Parties

A. Union's Exceptions

The Union excepts to the award on the following three grounds.

First, the Union claims that the Arbitrator failed to apply the proper legal standard for determining whether the Agency's proffered justification for not selecting the grievant was pretextual. The Union argues that the "Agency's errors in the promotion process clearly show the discriminatory intent present in its nonselection of [the grievant]." Exceptions at 17. In support of its claim, the Union cites to numerous cases, including Krodel v. Young, 748 F.2d 701 (D.C. Cir. 1984) (Krodel) and Joseph Lockhart v. Brady, Secretary, Department of the Treasury, EEOC Appeal No. 01911755 (February 18, 1992) (Lockhart), and asserts that "procedural irregularities in promotion actions are evidence of pretext and, therefore, infer [sic] discrimination." Exceptions at 17. The Union also claims that "inferior qualifications of the selectee are probative of discriminatory intent[,]" and that "an Agency's pattern of manipulation of selection criteria to the [grievant's] disadvantage can support a finding of discrimination by a selecting official." Id. at 18 (citing Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981) (Burdine); Elton P. Wilson v. Rice, Secretary, Department of the Air Force, EEOC Appeal No. 01901831 (September 28, 1990) (Wilson)).

Second, the Union claims that the "Arbitrator [i]gnored well-settled case law which dictates what behaviors demonstrate sex discrimination[.]" Id. at 18. Relying on Michele A. Cavey v. Frank, Postmaster General, U.S. Postal Service, EEOC Appeal No. 01903397 (December 4, 1990) (Cavey)and Debra J. Sebring v. Veterans Administration, EEOC Appeal No. B01780234 (February 6, 1981) (Sebring), the Union argues that the Arbitrator's treatment of the three remarks the Union introduced was "cursory and did not conform to law regarding evidence of pretext and discriminatory intent." Exceptions at 18. Citing Olivet L. Smith v. Skinner, Secretary, Department of Transportation, EEOC Appeal No. 01901687 (August 31, 1990) (Smith), the Union asserts those statements establish that the Agency had a prevalent discriminatory atmosphere that caused the grievant "to be subjected not only to an improper selection process, but also to a biased grievance process." Exceptions at 19-20.

Finally, the Union claims that the Arbitrator "[i]gnored the [i]nherent [f]law" in the grievance procedure by refusing to find that the process itself was tainted. Id. at 20. According to the Union, pursuant to the parties' agreement, an employee has the right to contest discrimination in the grievance procedure, and the Arbitrator ignored the fact that the grievant did not have a meaningful opportunity to have her grievance evaluated because she had to present her case in a sexist atmosphere.

B. Agency's Opposition

The Agency claims that the Union's exceptions are "simply disagreement with the [A]rbitrator's decision." Opposition at 2. The Agency also claims that the cases cited by the Union in support of its exceptions are inapplicable. While the Agency concedes that there were errors in the ranking process, it asserts that none of these errors harmed the grievant because she was always on the BQL. The Agency also claims that any statements made during the interview process were "not sex-based, but work-related, in that they accurately described the working conditions for the . . . position." Id. at 3. Finally, the Agency claims that none of the three statements relied on by the Union demonstrate that the female selecting official created or condoned a "hostile work environment." Id. at 6.

IV. Analysis and Conclusions

A. The Arbitrator Applied the Proper Legal Standard For Determining Whether the Agency's Proffered Justification For Not Selecting the Grievant Was Pretext

The Union claims that the award violates "well-settled law" because the Arbitrator failed to apply the proper legal standard for determining whether the Agency's proffered justification for not selecting the grievant was pretext. Exceptions at 9. The Union's exceptions involve the consistency of the award with law. Thus, we review the questions of law raised by the Union's exceptions and the Arbitrator's award de novo. See National Treasury Employees Union, Chapter 24 and U.S. Department of the Treasury, Internal Revenue Service, 50 FLRA 330, 332 (1995). In applying a standard of de novo review, the Authority assesses whether the arbitrator's legal conclusions are consistent with the applicable standard of law. See National Federation of Federal Employees, Local 1437 and U.S. Department of the Army, Army Research, Development and Engineering Center, 53 FLRA 1703, 1710 (1998). In making that assessment, the Authority defers to the arbitrator's underlying factual findings. See id.

Consistent with this standard, the Authority has held that in reviewing an arbitration award involving a claim of intentional discrimination, the Authority will defer to the arbitrator's finding of fact and will not "look behind" that finding. U.S. Department of the Treasury, U.S. Customs Service, El Paso, Texas and National Treasury Employees Union, Chapter 143, 52 FLRA 622, 628 (1996). See also U.S. Department of Commerce, Patent and Trademark Office and National Treasury Employees Union, Chapter 243, 52 FLRA 358, 367 (1996).

1. The Framework for Discrimination Claims

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]." Burdine, 450 U.S. at 254-55 (citation omitted). Finally, if the employer articulates a legitimate nondiscriminatory reason for not selecting the applicant, the burden shifts to the applicant "to show that [the employer's] stated reason for [the applicant's] rejection was in fact pretext." McDonnell Douglas, 411 U.S. at 804. At all times, the applicant bears the burden of persuasion as to the ultimate fact of intentional discrimination. Burdine, 450 U.S. at 253.

The determination as to whether the employer's proffered justification for not selecting an applicant is pretext--i.e., the determination as to whether the employer intentionally discriminated--is a factual one. Hicks, 509 U.S. at 514-16. An applicant can show pretext either directly, by showing that a discriminatory reason more likely motivated the employer, or indirectly, by showing that the employer's explanation is unworthy of credence. Burdine, 450 U.S. at 256. The factfinder must believe the applicant's explanation of intentional discrimination; it is not enough to simply disbelieve the employer. Hicks, 509 U.S. at 519.

2. The Arbitrator's Conclusion that the Procedural Errors In the Selection Process Did Not Establish Pretext Is Not Contrary to Law (2)

In its first exception, the Union claims that the "Agency's errors in the promotion process clearly show the discriminatory intent present in its nonselection of [the grievant]." Exceptions at 17. According to the Union, "[b]ecause the Arbitrator's award did not follow established case law on procedural irregularity, it is contrary to law and cannot be upheld." Id. at 18.

As set forth above, an applicant claiming discriminatory nonselection bears the ultimate burden of persuading the trier of fact that the employer's proffered justification for its decision is pretextual. In attempting to persuade the trier of fact, the applicant can present a variety of evidence. Included in the types of relevant evidence to rebut an employer's claim to have promoted a better qualified applicant is evidence that the non-selected applicant was in fact better qualified than the person chosen for the position. Patterson v. McLean Credit Union, 491 U.S. 164, 187-88 (1989).(3) In addition, evidence that the employer--without explanation or justification--deviated from standard procedures or made an "idiosyncratic or suspect" personnel decision is also relevant.(4) Lockhart, slip op. at 13.

Although the Union is correct in its assertion that evidence of procedural irregularities in a selection process can demonstrate illegitimate motives on the part of an employer, whether those irregularities sufficiently establish that the Agency's proffered reason was a pretext is a factual matter that must be decided by the Arbitrator. See Hicks, 509 U.S. at 519. In his award, the Arbitrator addressed the Union's claims that there were procedural irregularities in the selection process and found that while there were some "unexplained aspects" of the ranking process, based on the evidence and testimony before him, those irregularities did not sufficiently demonstrate that the Agency had acted with discriminatory intent. Award at 10. In this respect, the Arbitrator concluded that because the grievant was ultimately given a "top rating," she was not adversely affected by any of the unexplained aspects of the ranking process. Id. He also found that there was no evidence demonstrating that errors in the rating and ranking process improperly placed the selectee on the BQL. In addition, the Arbitrator did not find that any of the evidence demonstrated that the Agency improperly used its judgment regarding what aspects of the job and the applicants' backgrounds were most important in distinguishing among the applicants. In this regard, the Arbitrator found that the selectee did possess experience--which was relevant to the position--that the grievant did not possess, and that the Agency offered a credible explanation as to why the selectee was ultimately selected.

To the extent the Union claims that the Arbitrator was required to reach a particular conclusion on similar evidence as did the EEOC or the courts in other cases, the Union is not correct. While the cases cited by the Union in support of its allegation that the Arbitrator did not follow the "law on procedural irregularity" do provide guidance as to what may constitute sufficient evidence to establish pretext, they do not compel a different conclusion than that reached by the Arbitrator in this case. Exceptions at 17-18. The Arbitrator did not improperly dismiss without consideration the evidence and testimony presented by the Union, nor did he conclude that the procedural irregularities alleged by the Union were not relevant to his pretext determination. Rather, he reviewed the record, addressing each of the Union's assertions, and made a factual finding that any procedural irregularities in this case did not adversely affect the grievant and did not demonstrate discriminatory motives on the part of the Agency. Having found that the Agency's decision was not based on unlawful criteria or illegitimate motives, the Arbitrator denied the grievance.

As there is nothing in the Arbitrator's award or the record demonstrating that he applied a standard that is contrary to law to the facts in this case, and because we defer to the Arbitrator's factual finding that the Agency's proffered reason for its selection was not pretextual, we conclude that the award is not deficient because it is contrary to law.(5) Cf. Patterson, 491 U.S. at 187-88 (vacating decision where the lower court erred in holding that for the applicant to demonstrate pretext, she was required to prove that she was better qualified than the selectee).

Based on the foregoing, we deny the exception.

3. The Arbitrator's Conclusion that the Alleged Remarks Did Not Establish Pretext Is Not Contrary to Law

In its second exception, the Union, relying on Cavey and Sebring, argues that the Arbitrator's treatment of the three remarks the Union introduced was "cursory and did not conform to law regarding evidence of pretext and discriminatory intent." Exceptions at 18. Citing Smith, the Union also asserts those statements establish that the Agency had a prevalent discriminatory atmosphere that caused the grievant "to be subjected not only to an improper selection process, but also to a biased grievance process." Exceptions at 19-20.

As set forth in section A.2., supra, an applicant claiming discriminatory nonselection can present a variety of evidence in an attempt to persuade the trier of fact that the employer's proffered justification for its selection was pretextual. Included in the types of relevant evidence is evidence of sex-based questions posed to female applicants but not to male applicants.(6) In addition, evidence of the utterance of discriminatory statements that create and demonstrate a prevalent discriminatory atmosphere in the workplace is relevant.(7) However, it is the record as a whole, which may include evidence of sex based statements, that supports an ultimate finding of discrimination. See Cavey, slip op. at 7 (the record as a whole, which included evidence that the selecting official's justifications for choosing the male applicant were not credible because there was no information supporting them, led to a finding of discrimination); Sebring, slip op. at 3 (evidence of severe statements, the inability of the agency to point to any objective criteria in the selection process, and statistics showing an abundance of women in lower level dead-end jobs, demonstrated that the agency's sole justification for its selection of the male candidate over the higher rated female candidate--the selectee's ability to handle himself in the interview--was pretext).

Here, the Arbitrator addressed each of the three comments that the Union argued demonstrated pretext. Specifically, the Union asserted that those comments showed the Agency had a prevalent discriminatory atmosphere and viewed the position at issue to be a "male job." In dealing with each comment individually, the Arbitrator addressed the credibility of the witnesses testifying with regard to the comments and made a factual determination that these statements did not sufficiently demonstrate that the Agency made its selection based on illegal motives.

As to the statement made during the initial briefing, the Arbitrator found that it was not made by management. The Arbitrator did not find, as alleged by the Union, that those statements could not be evidence of discriminatory motives. Rather, he made a factual determination that the statements did not demonstrate pretext in this case because they were not made by management. With respect to the statement allegedly made by one of the interviewing officials, the Arbitrator found that the interviewing official's testimony that any statements were made to all applicants to explain what the position involved was "reasonable and credible." Award at 11. The Arbitrator also found that the grievant was ranked by that official "at the top of the heap[.]" Id. Finally, the Arbitrator addressed the statement allegedly made by the third-step grievance official, and determined that it did not impact on the selection process. Based on these findings, the Arbitrator concluded that the statements the Union alleged demonstrated pretext, did not sufficiently show that the Agency acted with a discriminatory motive.

Nothing in the cases cited by the Union in support of its exceptions compels a different conclusion or demonstrates that the standard applied by the Arbitrator in evaluating the evidence was contrary to law. Further, the Arbitrator did not improperly find that such statements could not demonstrate pretext. Instead, the Arbitrator's finding that the three comments did not sufficiently establish pretext is a finding of fact that was properly based on the evidence and testimony before him. See Hicks, 509 U.S. at 519; Cavey, slip op. at 6 ("credibility judgments of persons in a position to hear and observe a witness are not overturned unless there is substantial evidence in the record to the contrary"). Contrary to the Agency's assertions, the Arbitrator's review of the alleged statements was not cursory.

As there is nothing in the Arbitrator's award demonstrating that he applied a standard that is contrary to law to the facts in this case, and because we defer to the Arbitrator's factual finding that the Agency's proffered reason for its selection was not pretextual, we conclude that the award is not deficient because it is contrary to law. Cf. Patterson, 491 U.S. at 187-88 (vacating decision where the lower court erred in holding that for the applicant to demonstrate pretext, she was required to prove that she was better qualified than the selectee).

Based on the foregoing, we deny the exception.

B. The Arbitrator Did Not Fail to Conduct a Fair Hearing

The Union claims that the Arbitrator "[i]gnored the [i]nherent [f]law" in the grievance procedure by refusing to find that the process itself was tainted. See Exceptions at 20. Although the Union states that the issue before the Authority presented in its exceptions is "[w]hether the Arbitrator erred as a matter of law in finding no discrimination[,]" we are unable to discern from this Union assertion an argument involving the award's consistency with law. Exceptions at 9. Thus, we construe this contention as a claim that the Arbitrator failed to conduct a fair hearing.

An award will be found deficient on this ground when it is established that an arbitrator's refusal to hear or consider pertinent and material evidence, or other actions in conducting the proceeding, prejudiced a party so as to affect the fairness of the proceeding as a whole. American Federation of Government Employees, Local 1668 and U.S. Department of the Air Force, Elmendorf Air Force Base, Anchorage, Alaska, 50 FLRA 124, 126 (1995). Exceptions disputing arbitral findings of fact and evaluation of evidence and testimony, including the credibility of witnesses and determinations about the weight to be given their testimony, will not establish that an award is deficient on this ground. American Federation of Government Employees, Local 1546 and U.S. Department of Defense, Defense Logistics Agency, Defense Distribution Region West, 52 FLRA 94, 102 (1996).

The Union's contention is disputing the Arbitrator's evaluation of the evidence, the weight accorded the testimony of witnesses, and the factual conclusions based upon that evaluation. As such, the Union's exception does not provide a basis for a conclusion that the award is deficient because the Arbitrator failed to conduct a fair hearing. Additionally, contrary to the Union's arguments, it is clear from the award that the Arbitrator considered, and fully discussed, the impact of the management official's statement that was made during the third-step grievance proceeding. Based on that analysis and evaluation, the Arbitrator determined that there was no discrimination. Because the Union has failed to establish that the Arbitrator failed to conduct a fair hearing, we conclude that the exception construed on this ground fails to establish that the award is deficient.

Based on the foregoing, we deny the exception.

V. Decision

The Union's exceptions are denied.




FOOTNOTES:
 

1. The Union cited to the following three remarks allegedly made during the selection and grievance processes: (1) remarks involving "women having to wear overalls, drive pick-up trucks, and climb tanker trucks in high heels" made at an initial briefing seeking volunteers for the position (id. at 7); (2) statements made to the grievant by a member of the interview panel involving her wearing "steel-toed shoes and driving around in a pick-up truck" (id. at 5); and (3) a statement made by the third-step grievance hearing official that the grievant would not want to "run around the country wearing steel-toed boots with those guys, dealing with truck drivers" (id. at 7).

2. To the extent that the Union's reference to the Arbitrator's misapplication of the promotion procedures set forth in the parties' agreement could be construed as a claim that the award fails to draw its essence from the agreement, we reject such a claim. An award fails to draw it essence from an agreement where an arbitrator's interpretation of the agreement is irrational, implausible, unfounded, or evidenced a manifest disregard of the agreement. See United States Department of Labor (OSHA) and National Council of Field Labor Locals, 34 FLRA 573, 576-77 (1990). In this regard, the Arbitrator did not interpret or apply the cited portions of the parties' agreement in reaching his conclusion that the Agency did not act in a discriminatory manner.

3. See, e.g., Krodel, 748 F.2d at 708 (pretext found where the employer failed to offer any credible explanation of why the selectee was better qualified, statistics supported the charge of discrimination, and the employer's administrator and witnesses credibly testified that the employer generally favored younger employees); Wilson, slip op. at 3 (pretext found where the applicant's qualifications were "so far superior" than the selectee's and evidence demonstrated that selecting official manipulated the rating criteria, gave undue weight to experience not contained in the job description while discounting experience considered critical, and violated agency procedures and regulations during the selection process). Cf. Bauer v. Bailar, 647 F.2d 1037, 1048 (10th Cir. 1981) (the nonselected applicant's qualifications "were not so plainly superior as to require a finding of pretext").

4. In Lockhart, the Equal Employment Opportunity Commission (EEOC) found pretext where, along with other procedural irregularities, the agency did not satisfactorily explain why the selectee's application was considered despite the fact that the application was submitted beyond the closing date, did not contain one of the necessary appraisals, and was not signed and dated. This evidence, coupled with evidence of "idiosyncratic" selection decisions, the lack of credibility of the rating and ranking officials, the failure of those officials to comply with the agency's Merit Promotion Plan and the failure of those officials to offer any credible explanation for their failure to afford the applicant any meaningful consideration, sufficiently established pretext. The EEOC noted however, "that each piece of evidence . . . standing alone, would probably not show pretext." Id. at 13.

5. We note the Union's claim that the Agency's "mistakes and discriminatory intent were the cause of the [g]rievant's nonselection[,]" and therefore, she was entitled to backpay under the Back Pay Act, 5 U.S.C. º 5596. Exceptions at 12. In light of the Arbitrator's conclusion that the Agency did not discriminate against the grievant, there is no basis for concluding that the grievant was affected by an unjustified or unwarranted personnel action thereby entitling her to backpay under the Back Pay Act.