U.S. Department of the Treasury, Internal Revenue Service, Oxon Hill, Maryland (Agency) and National Treasury Employees Union, Chapter 65 (Union)

[ v56 p 292 ]

56 FLRA No. 41

U.S. DEPARTMENT OF THE TREASURY
INTERNAL REVENUE SERVICE
OXON HILL, MARYLAND
(Agency)

and

NATIONAL TREASURY EMPLOYEES UNION
CHAPTER 65
(Union)

0-AR-3149

_____

DECISION

April 28, 2000

_____

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

Decision by Member Cabaniss for the Authority.

I.     Statement of the Case

      This case is before the Authority on exceptions to an award of Arbitrator Andree Y. McKissick 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 Regulations. The Union filed an opposition to the exceptions.

      The Arbitrator sustained a grievance alleging that: (1) the grievant was entitled to a retroactive temporary promotion under the parties' collective bargaining agreement for performance of higher-graded duties; (2) the Agency committed a prohibited personnel practice in violation of 5 U.S.C. § 2302(b) (section 2302(b)) by retaliating against her; and (3) the Agency discriminated against her on the basis of race in violation of section 2302(b)(1) and Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. § 2000e-16(a). As her award, the Arbitrator granted the grievant backpay and punitive and compensatory damages.

      For the reasons that follow, we deny the Agency's exceptions with respect to the higher-graded duties grievance, the discrimination grievance, and the retaliation grievance. We set aside the award as to punitive damages. We remand the award as to compensatory damages to the parties for resubmission to the Arbitrator. [ v56 p293 ]

II.     Background and Arbitrator's Award

      The grievant in this case, a GS-13 Contract Administrator, is an African-American female. Between May 1994 and October 1995, the grievant was detailed to the Simplified Tax and Wages Reporting System (STAWRS) project. [n1]  The objective of that project was to consolidate separate wage reporting systems into a single system. The project was divided into three phases: (1) a feasibility study (the MITRE contract); (2) an implementation stage; and (3) a maintenance stage.

      During the period she was detailed to STAWRS, the grievant was responsible for administering the contracts for the first two phases of that project. On October 23, 1995, a grievance was filed alleging that the Agency violated Article 16, Section 1.B.2 of the parties' collective bargaining agreement by failing to temporarily promote the grievant for her work on STAWRS. [n2]  See Attachment 1 to Union Opposition. The grievant claimed that, because work on that project entailed the performance of GS-14 duties, under the agreement she was entitled to a temporary promotion.

      In the course of her work on STAWRS, Agency management requested that the grievant sign a "modification" of the MITRE contract. The grievant refused to sign because she was concerned that the modification was not consistent with law and regulation. According to the Arbitrator, the grievant sought legal counsel, contacting the "Inspector and the Office of Special Counsel [(OSC)] on September 15, 1995[.]" [n3]  Award at 25. Subsequent to her refusal to sign the modification, in October 1995, the grievant was removed from her work on STAWRS. [n4]  The grievant was replaced on STAWRS by a white, female GS-14 Contract Specialist. On November 22, 1995, a grievance was filed alleging that, in removing the grievant from the project, the Agency had retaliated against her because she expressed concerns regarding possible violations of law and regulation. See Attachment 8 to the Agency Exceptions. This grievance was subsequently amended on August 26, 1996, by adding a claim that the Agency discriminated against the grievant because of her race. See Attachment 3 to the Union Opposition.

      On January 25, 1996, [n5] the grievant filed an equal employment opportunity (EEO) complaint with the Agency. [n6]  On May 29, 1996, the Director of the Agency's EEO Regional Complaint Center, dismissed portions of the complaint under Equal Employment Opportunity Commission (EEOC) regulations, 29 C.F.R. § 1614.107(d), because matters covered by the complaint were the subject of previously filed grievances. [n7]  See Letter of May 29, 1996, to Grievant's Representative at 2, Attachment 9 to Union Opposition. According to the Arbitrator, the dismissal of those portions of the complaint was subsequently affirmed by the "Regional Director" on August 28, 1997. [n8]  Award at 9.

      The portions of the EEO complaint that remained were submitted to an EEOC Administrative Judge (AJ). On March 30, 1998, the AJ issued a recommended decision finding that the Agency had not discriminated, nor retaliated, against the grievant. See Attachment 11 to the Agency Exceptions (Agency Case No. 95-1104; EEOC Case No. 100-97-7259x). Specifically, the AJ found that the reassignment of the grievant from the STAWRS project was not "discriminatory in nature." AJ's Decision at 5-6, Attachment 11 to Agency Exceptions. On May 13, 1998, the Agency adopted the AJ's recommended decision as the final agency decision. See Attachment 11 to Agency Exceptions. [n9] 

      When the parties were unable to resolve them, the grievances were consolidated and submitted to arbitration. The parties did not stipulate to the issues before [ v56 p294 ] the Arbitrator. The Arbitrator, however, identified a threshold issue of arbitrability. Specifically, as framed by the Arbitrator, the issue concerned whether, because of the AJ's decision with respect to racial discrimination and retaliation against the grievant, she was precluded from considering those matters in resolving the grievances before her.

      The Arbitrator found that the October and November 1995 grievances had been filed before the EEO complaint was filed in January 1996 and had addressed "the same allegations" as alleged in the complaint. Award at 17. The Arbitrator also noted that those grievances had been amended in August 1996 to include an issue of racial discrimination.

      The Arbitrator found that the only issue before the AJ was that of religious discrimination and that "the only valid ruling" of the AJ concerned that issue. Id. at 18. Accordingly, the Arbitrator found that the AJ's "rulings upon subject matters outside her legitimate jurisdiction should be rendered null and void . . . [and] must be vacated" because those rulings are inconsistent with EEOC regulations, 29 C.F.R. § 1614.301(a), concerning the grievant's "election of remedies." Id. The Arbitrator concluded that the grievances were arbitrable.

      Turning to the merits of the grievances, the Arbitrator found, first of all, that the grievant "was essentially 'detailed' to a grade GS-14 and performed 'higher grade duties['] for at least twenty-five percent (25%) and for the requisite time period of at least four (4) months . . . ." Id. The Arbitrator based her conclusion on evidence as to the duties performed by the grievant on the STAWRS project and on a comparison of the duties of a GS-13 Contract Administrator with those of a GS-14 Contract Specialist.

      The Arbitrator also found, based on the grievant's testimony, that the grievant had spent "a considerable amount of time" on STAWRS between May 1994 and October 1995, working virtually full-time in March 1995. The Arbitrator concluded that the grievant spent "considerably more than the twenty-five percent (25%) required by [the collective bargaining agreement] and far beyond the requisite four (4) months[.]" Id. at 22.

      The Arbitrator rejected the Agency's argument that the grievance concerned classification matters. The Arbitrator noted that the grievant was not seeking a reclassification of her position.

      The Arbitrator found that the Agency failed to comply with Article 16, Section 1.B.2. of the parties' agreement, committing a prohibited personnel practice in violation of Article 4, Section 2 of that agreement and 5 U.S.C. § 2302(a)(1), id. at 23, and concluded that retroactive promotion with back pay was the appropriate remedy. In this regard, she found that: (1) the denial of a temporary promotion was an unjustified and unwarranted act; (2) the act resulted in a reduction of the grievant's pay between May 1994 and October 1995; and (3) but for the action, the grievant would not have suffered the reduction in pay.

      The Arbitrator next considered the grievance alleging that the Agency retaliated against the grievant for expressing concern about possible violations of law and regulation and thereby committed a prohibited personnel practice under law and the collective bargaining agreement. The Arbitrator found that the grievant "sought legal counsel when asked to sign [the] modification" to the MITRE contract and contacted "the Inspector and [OSC] on September 15, 1995[.]" Id. at 25. The Arbitrator also found that the "prevailing test" under the "prohibited personnel action statute" is "whether or not one reasonably believes that there is a violation of law [or] regulation." Id., citing pages 250-52 of the arbitration transcript. Applying the test to the "events" of the case, the Arbitrator found that the grievant "meets this test in refusing to sign" the modification of the MITRE contract. Id.

      The Arbitrator also found that: (1) the grievant filed grievances and an EEO complaint; (2) the request for the grievant to be detailed to STAWRS was denied; and (3) negative documentation had improperly been included in the grievant's personnel file. The Arbitrator found that these "past events . . . set the stage" for the removal of the grievant from STAWRS. Id. at 25. The Arbitrator concluded that the grievant "was retaliated against because she engaged in protected activities as noted in the Prohibited Personnel Practices Statute and as incorporated in Article 4, Section 9, Protection Against Prohibited Personnel Practices, in the Agreement." [n10]  Id. at 26.

      Finally, the Arbitrator addressed the grievance alleging racial discrimination. The Arbitrator noted that the principles of law applicable to resolution of claims of racial discrimination under Title VII are set forth in the Supreme Court's decisions in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973) and Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981). She found that those principles could be [ v56 p295 ] applied to the grievance. In particular, the Arbitrator found that: (1) as an African American female, the grievant was in a protected class; (2) she "'applied and was qualified'" for the temporary promotion to GS-14; (3) she was rejected for the temporary promotion, as well as for a formal detail, and was removed from STAWRS; (4) after her removal, "'the position remained open'" and the Agency "sought an applicant" with the grievant's qualifications; and (5) she was replaced by a white female GS-14. Award at 27-28. Based on these findings, the Arbitrator found that the Union had "made a prima facie case of discrimination against" the Agency. Id. at 28.

      The Arbitrator rejected the Agency's attempt to demonstrate "'a legitimate nondiscriminatory reason'" for rejecting the grievant's temporary promotion and removing her from STAWRS. Id. Specifically, the Arbitrator found that the evidence presented contradicted the supervisor's explanation of the reasons for which he had removed the grievant from the STAWRS project. Id. at 28-29.

      Based on these findings, the Arbitrator found that the Agency was unable to articulate a legitimate, nondiscriminatory reason for the grievant's removal from STAWRS. The Arbitrator concluded that the reasons offered by the Agency were a "pretext for discrimination" in the removal of the grievant and her replacement by a white, female GS-14. Id. at 30. The Arbitrator found that the grievant was "entitled to be compensated, as set forth in Title VII, with compensatory and punitive damages." Id.

      As relevant herein, the Arbitrator stated her award as follows:

Grievance sustained. This Arbitrator finds that Article 16, Section 1, B.2. of the Agreement was violated by the [Agency] when the Grievant performed higher graded (GS-14) duties without proper compensation. Thus, Grievant should be temporarily promoted from May of 1994 to October of 1995 with back pay and interest as set forth by the Back Pay Act (5 USC 5596(b)(1), (1976)[)]. This violation also constitutes a Prohibited Personnel Practice (5 USCA 2302 (a)(1)[)] and as set forth in Article 4, Preamble 1, 2, 7 and Section 1 B.2. of the Agreement. Based on the totality of events, this Arbitrator finds that Title VII was violated for reasons stated in the award. This statute provides for compensatory and punitive damages for which Grievant is entitled. . . .

Award at 1. [n11] 

III.     Exceptions Concerning the Discrimination Grievance  [n12] 

A.     Positions of the Parties

1.     Agency

      The Agency claims that the Arbitrator exceeded her authority by vacating the EEOC AJ's decision, and the final Agency decision, regarding the grievant's EEO complaint because she had no jurisdiction over that proceeding. Specifically, the Agency asserts that the discrimination claim was not arbitrable. In this regard, the Agency argues that this issue is not controlled by the Statute or by EEOC regulations. According to the Agency, the dispositive issue is whether the Arbitrator's award as to the discrimination claim is barred by principles of res judicata. In particular, the Agency maintains that: (1) the Agency issued a final decision adopting the AJ's finding that the removal of the grievant from the STAWRS project was not discriminatory; (2) the arbitration proceeding involved the same grievant and management officials; and (3) the discrimination issue in the grievance is the same as that in the EEO proceeding.

      The Agency also asserts that the grievance amendment alleging discrimination was filed after the EEO complaint and that the Union had taken the position that the grievances at issue did not contain discrimination claims.

      With respect to the Arbitrator's award on the merits of the discrimination grievance, the Agency claims that, insofar as the Arbitrator found that the grievant established a prima facie case of discrimination on the grounds that she was rejected for a temporary promotion, the award is based on a nonfact. The Agency maintains that, rather than seeking a detail to a GS-14 position, the grievant claimed a temporary promotion for performing higher-graded duties.

      The Agency also claims that the central fact underlying the Arbitrator's conclusion concerning the [ v56 p296 ] Agency's defense of nondiscrimination is erroneous. Specifically, the Agency argues that, although the Arbitrator found that the grievant's supervisor had not mentioned in his affidavit in the EEO proceeding the growth of the STAWRS project as a reason for removing the grievant from that project, the supervisor's affidavit clearly includes that reason.

2.     Union

      The Union contends that the Arbitrator properly disregarded the EEOC AJ's decision as to the discrimination claim. In particular, the Union asserts that the grievant filed "several claims of discrimination" against the Agency, but that "[t]hese claims were made when the grievances at issue had already been filed." Union Opposition at 17. The Union argues that the principles of res judicata are inapplicable.

B.     Analysis and Conclusions

1.     Arbitrability--Section 7121(d)

      The Agency frames its exception to the Arbitrator's arbitrability determination with respect to the discrimination grievance as a claim that the Arbitrator exceeded her authority. However, the Agency's arguments in support of its exception are stated as a contention that the award in this regard is deficient on res judicata grounds, a contention that the award is contrary to law. We construe the Agency's exceeded authority exception as a claim that the Arbitrator's award as to the arbitrability of the discrimination grievance is deficient as a matter of law.

      The Agency's exception misses the point of the award. The threshold issue properly addressed by the Arbitrator is whether the grievant irrevocably elected, under section 7121(d) of the Statute, to pursue her removal from the STAWRS project through the negotiated grievance procedure rather than through the EEO procedures. If the grievant made such an election, as the Arbitrator found, the AJ would have been barred from ruling on whether the Agency illegally discriminated against the grievant by that removal. See, e.g., Smith v. Kaldor, 869 F.2d 999, 1004-06 (6th Cir. 1989) (discrimination complaint dismissed under section 7121(d) on grounds of previously filed grievance concerning same matter). The AJ's decision could thus have no preclusive effect with respect to the Arbitrator's award. In this regard, the Agency argues only that the discrimination claim as to the removal from STAWRS was raised first by the filing of the EEO complaint in January 1996, before the amended discrimination grievance was filed in August 1996.

      Section 7121(d) provides that matters involving claims under section 2302(b)(1), such as the racial discrimination claim herein, may be filed under the negotiated grievance procedure or under a statutory procedure, but not both. [n13]  Specifically, the EEO proceeding would be precluded by section 7121(d), if two conditions are met: (1) the matter which is the subject of the EEO proceeding is the same matter that is the subject of the grievance initiated under the negotiated grievance procedure; and (2) such matter was earlier raised by the employee timely initiating an action under the grievance procedure. See, e.g., U.S. Department of the Air Force, Headquarters, Oklahoma City Air Logistics Center, Tinker Air Force Base, Oklahoma and American Federation of Government Employees, Local 916, 43 FLRA 290, 296 (1991). The term "matter" as used in section 7121(d) refers "'not to the issue or claim of prohibited discrimination,' but, rather, to the personnel action involved." Id. at 297 (1991), quoting U.S. Department of Justice, United States Marshals Service and International Council of U.S. Marshals Service Locals, AFGE, 23 FLRA 564, 567 (1986) (Marshals Service). See also Bonner v. MSPB, 781 F.2d 202, 204-05 (Fed. Cir. 1986) (the term "matter" in section 7121(d) pertains to the "underlying action"); Macy v. Dalton, 853 F. Supp. 350, 353-54 (D.C. E.D. Calif. 1994). Specifically, section 7121(d) pertains to the personnel actions listed in section 2302(b)(1)(A). Marshals Service, 23 FLRA at 567.

      Based on the foregoing summary of section 7121(d), the dispositive question is whether the Agency action at issue was raised first in the negotiated grievance procedure or in the EEO procedure. The Arbitrator's decision does not provide a basis for answering this question because the Arbitrator did not discuss the contents of the October and November 1995 grievances or of the January 1996 EEO complaint in detail and thus did not explain her legal conclusion that the grievances barred the AJ from considering the racial discrimination issue.

      It is possible, however, to answer the question based on the record in this case. See, e.g., National Federation of Federal Employees, Local 1437 and U.S. Department of the Army, Army Research, Development and Engineering Center, 53 FLRA 1703, 1710 n.6 (1998) ("A remand would not be appropriate if a necessary fact were, for example, clearly established by an uncontested document that simply was not mentioned [ v56 p297 ] by the arbitrator.") The reassignment of the grievant from the STAWRS project was submitted to the grievance procedure prior to the filing of the EEO complaint as to that matter in January 1996, see November 22, 1995 grievance, Attachment 8 to the Agency Exceptions. [n14]  Moreover, the Director of the Regional Complaint Center dismissed the complaint as to the removal of the grievant from STAWRS because the grievant had elected to raise that matter under the negotiated grievance procedure, see Director's Letter at 2, Attachment 9 to the Union Opposition.

      The AJ's decision as to the grievant's removal from the STAWRS project, therefore, is without legal effect. The fact that the discrimination claim with respect to that action was not filed until after the EEO complaint is irrelevant for determining the effect of section 7121(d) in barring the AJ's consideration of the reassignment of the grievant. The dispositive fact under section 7121(d) is that the Agency's action in removing the grievant from STAWRS was raised first under the negotiated grievance procedure. See, e.g., U.S. Department of Justice, United States Marshals Service and International Council of U.S. Marshals Service Locals, AFGE, 23 FLRA 414, 417 (1986).

      The Arbitrator's conclusion that the AJ was barred from considering the discriminatory effect of the Agency's removal of the grievant from the STAWRS project, and that the AJ's decision in that regard did not preclude her consideration of the discrimination claim as to the removal, is consistent with law. Therefore, the Agency's res judicata exception does not provide a basis for finding the award deficient.

      Accordingly, we deny the Agency's jurisdictional exception.

2.     Merits--Nonfact

      An arbitrator's legal conclusions cannot be challenged on grounds of nonfact. See, e.g., National Federation of Federal Employees, Local 561 and U.S. Department of the Army, U.S. Army Corps of Engineers, Mobile, Alabama, 52 FLRA 207, 210-11 (1996); U.S. Department of the Navy, Philadelphia Naval Shipyard and Philadelphia Metal Trades Council, 39 FLRA 590, 605 (1991). The Arbitrator's determination that the grievant had established a prima facie case of racial discrimination and that the Agency had not established a nondiscriminatory motive for its actions are legal conclusions. Consequently, the Agency's nonfact exceptions as to the Arbitrator's award concerning the discrimination grievance should be denied.

      Accordingly, we deny the Agency's nonfact exception.

IV.     Exceptions Concerning the Higher-Graded Duties Grievance

A.     Positions of the Parties

1.     Agency

      The Agency contends that the Arbitrator relied on a nonfact to determine that the grievant performed GS-14 duties because her findings thereon are not based "on the information actually included" regarding the three matters to which she cites. Agency Exceptions at 16. The Agency claims that these erroneous findings cannot support the Arbitrator's conclusion that the grievant performed higher-graded duties.

      The Agency also contends that the Arbitrator's award fails to draw its essence from the parties' collective bargaining agreement. In particular, the Agency argues that the Arbitrator based her conclusion that the grievant spent twenty-five percent of her time on higher-graded duties on the amount of time she worked on STAWRS, not, as required by the agreement, on "how much time she spent on higher[-]graded duties that might have been a part of the project." Id. at 18.

2.     Union

      The Union contends that the Agency has not established that any of the alleged nonfacts constitutes a central fact without which the Arbitrator would have reached a different result. As to the disputed factual findings, the Union argues that the Agency is simply disagreeing with "the facts in the record." Union Opposition at 23. The Union specifically rebuts each of the Agency's arguments with respect to the three factors discussed by the Arbitrator.

      As to the Agency's essence argument, the Union claims that the Agency "failed to provide any evidence to dispute the grievant's claim that the STAWRS project was higher graded work." Id. at 20. The Union asserts that the Arbitrator "engaged in a careful and thoughtful analysis of the work [the grievant] was performing and determined that it was work of the higher grade, that she spent the requisite time performing the work and that she was eligible for [a] temporary promotion." Id. [ v56 p298 ]

B.     Analysis and Conclusions

1.     Nonfact

      To establish that an award is based on a nonfact, the appealing party must demonstrate that a central fact underlying the award is clearly erroneous, but for which a different result would have been reached by the arbitrator. See 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). An award will not be found deficient based on an arbitrator's determination on any factual matters that the parties disputed below. Id. at 594 (citing Mailhandlers v. Postal Service, 751 F.2d 834, 843 (6th Cir. 1985).

      In resolving a grievance alleging that a grievant is entitled to a temporary promotion because he or she has performed higher-graded duties, an arbitrator examines the higher graded duties and determines whether the grievant in fact performed them. See, e.g., National Association of Government Employees, Local R3-35 and Department of Veterans Affairs, Medical Center, Coatesville, Pennsylvania, 52 FLRA 866, 871 (1997). In this case, position classification standards for GS-13 Contract Administrator positions and GS-14 Contract Specialist positions were introduced into evidence, describing the duties of the respective positions. Evidence was introduced before the Arbitrator concerning the duties performed by the grievant during her work on the STAWRS project. Comparing the duties set forth in the position classification standards with the evidence presented, the Arbitrator concluded that the grievant had performed GS-14 level work. Because the grade level of the duties performed by the grievant was litigated in this manner before the Arbitrator, the award finding that the grievant performed the higher-graded duties will not be found deficient as based on a nonfact.

      Accordingly, we deny the Agency's nonfact exception.

2.     Essence

      In reviewing an arbitrator's interpretation of a collective bargaining agreement, the Authority applies the deferential standard of review that Federal courts use in reviewing arbitration awards in the private sector. See 5 U.S.C. § 7122(a)(2); American Federation of Government Employees, Council 220 and Social Security Administration, Baltimore, Maryland, 54 FLRA 156, 159 (1998). Under this standard, the Authority will find that an arbitration award is deficient as failing to draw its essence from the collective bargaining agreement when the appealing party establishes that the award: (1) cannot in any rational way be derived from the agreement; (2) is so unfounded in reason and fact and so unconnected with the wording and purposes of the collective bargaining agreement as to manifest an infidelity to the obligation of the arbitrator; (3) does not represent a plausible interpretation of the agreement; or (4) evidences a manifest disregard of the agreement. See United States Department of Labor (OSHA) and National Council of Field Labor Locals, 34 FLRA 573, 575 (1990). The Authority and the courts defer to arbitrators in this context "because it is the arbitrator's construction of the agreement for which the parties have bargained." Id. at 576.

      Based on the evidence presented, the Arbitrator concluded that the grievant "spent considerably more than the twenty-five percent (25%) required" by the parties' agreement. Award at 22. The Agency has not demonstrated that the Arbitrator's interpretation and application of the agreement in reaching that conclusion is deficient on any of the grounds establishing that an award fails to draw its essence from the contract. In particular, the Agency has presented no evidence that the Arbitrator's conclusion is based on an interpretation of the 25% requirement as applying to work on the STAWRS project as a whole, as opposed to the performance of higher-graded duties only.

      Accordingly, for the foregoing reasons, we deny the Agency's essence exception.

V.     Exceptions Concerning the Retaliation Grievance

A.     Positions of the Parties

1.     Agency

      As to the Arbitrator's finding of a prohibited personnel practice for retaliation, the Agency asserts that the grievant "had pursued a remedy from the [OSC] prior to filing the instant grievances," and, under section 7121(d) of the Statute, "has elected the statutory procedure and is precluded from pursuing a grievance on this matter." Agency Exceptions at 3.

      The Agency asserts that the central fact underlying the Arbitrator's retaliation finding is clearly erroneous and thus the award in that regard is deficient on the ground of nonfact. According to the Agency, "[a]ll relevant contacts as described in the Arbitrator's opinion occurred after the alleged retaliatory event." [n15]  Id. at 22. The Agency also claims that the Arbitrator's award with respect to the retaliation grievance is contrary to law because the Arbitrator did not apply the proper standard in analyzing the issues. Finally, the Agency claims that [ v56 p299 ] the award does not draw its essence from the agreement. In particular, the Agency argues that the prohibited personnel practice provisions of the agreement found by the Arbitrator to have been violated concern competitive recruitment, see Article 4, Preamble, Paragraph 1, and education and training, see Paragraph 7.

2.     Union

      The Union contends that the Agency has failed to support its argument under section 7121(d). As to the Agency's nonfact exception, the Union concedes that "the Agency is correct that the transcript reference is incorrect as to the date that [the grievant] went to the [OSC.]" Union Opposition at 21. The Union contends, however, that the Arbitrator also considered other instances in arriving at a finding of retaliation, and that the Arbitrator found "that the retaliation was based upon a number of protected activities that are not in dispute as 'non facts'[.]" Id. at 21-22. The Union also contends that the Arbitrator made a correct legal analysis in finding that the Agency retaliated against the grievant for protected activities. Finally, the Union contends that the Agency's essence exception is based on "half truths and inaccuracies." Id. at 19.

B.     Analysis and Conclusions

      It is not necessary to address the Agency's exceptions with respect to the retaliation grievance. The Authority has consistently recognized that when an arbitrator has based an award on separate and independent grounds, an appealing party must establish that all of the grounds are deficient in order to have the award found deficient. See, e.g., U.S. Department of Health and Human Services, Food and Drug Administration, Pacific Region and National Treasury Employees Union, Chapter 212, 55 FLRA 331, 336 (1999). In those circumstances, if the excepting party has not demonstrated that the award is deficient on one of the grounds relied on by the Arbitrator, it is unnecessary to address exceptions to the other ground. See, e.g., U.S. Department of Labor, Washington, D.C. and American Federation of Government Employees, Local 12, 55 FLRA 1019, 1023 (1999) (Member Cabaniss dissenting in part) (Department of Labor).

      The Arbitrator's award in this case is based on her findings that the Agency failed to temporarily promote the grievant and retaliated and discriminated against the grievant. Those findings constitute separate and independent grounds for the Arbitrator's award. Thus, the fact that the Agency has not demonstrated that the award as to the failure to temporarily promote the grievant or as to discrimination against the grievant is deficient means that the award would stand regardless of whether the exceptions to the Arbitrator's retaliation findings were deficient. See Department of Labor, 55 FLRA at 1023.

      Accordingly, we deny the Agency's exceptions. [n16] 

VI.     Exceptions Concerning Compensatory and Punitive Damages

A.     Positions of the Parties

1.     Agency

      The Agency contends that the Arbitrator's award of punitive damages is contrary to 42 U.S.C. § 1981a(b)(1) which precludes the Federal Government from being liable for punitive damages in Title VII cases. [n17] 

      The Agency also contends that the Arbitrator "awarded an unspecified amount of compensatory damages without the requisite evidence of the existence of damages." Agency Exceptions at 2. According to the Agency, the Union made only a general request for such damages as are consistent with law and regulation, but produced no testimony or documentation that the grievant suffered any damage. The Agency argues that, in the absence of such evidence, an award of compensatory damages is contrary to law.

2.     Union

      The Union states that "[t]he Agency correctly asserts that [the grievant] is not entitled to punitive damages by virtue of the fact that the [G]overnment is not liable for punitive damages." Union Opposition at 14. [ v56 p300 ]

      The Union maintains that the award of compensatory damages is not deficient. Specifically, the Union asserts that compensatory damages for racial discrimination are authorized under 42 U.S.C. § 1981a(b). The Union also asserts that the Arbitrator found racial discrimination against the grievant and the Union requested such damages as are consistent with law and regulation. According to the Union, "a claim for compensatory damages can be made even if specific evidence has not been presented." Id. at 15 (citing Barnett v. Rubin, EEOC Case No. 01943513 (1995)).

B.     Analysis and Conclusions

1.     Punitive Damages

      It is not necessary to review the award of punitive damages de novo because the Union concedes that the award in this respect is deficient under 42 U.S.C. § 1981a(b)(1).

      Accordingly, we find that the Arbitrator's award of punitive damages with respect to the Title VII is deficient because it is contrary to law and the award in this respect will be set aside.

2.     Compensatory Damages

      As the Agency excepts to the Arbitrator's award of compensatory damages on the ground that it is contrary to law, de novo review of the award is appropriate. See, e.g., National Treasury Employees Union, Chapter 24 and U.S. Department of the Treasury, Internal Revenue Service, 50 FLRA 330, 332 (1995) (citing U.S. Customs Service v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994).

      The Authority thoroughly outlined the legal requirements for an award of compensatory damages as a remedy for racial discrimination under 42 U.S.C. § 1981a(b) in U.S. Department of Commerce, Patent and Trademark Office and National Treasury Employees Union, Chapter 243, 52 FLRA 358, 372-74 (1996) (Patent and Trademark Office). The Authority stated that "[a]n award of compensatory damages must be based on objective evidence." Id. at 373 (citing Lawrence v. Runyon, EEOC Appeal No. 01952288, slip op. at 4-5 (1996)). In that case, the Authority held that the arbitrator's award of compensatory damages was legally deficient because he had not set forth the necessary specific findings, including the identification of objective evidence, which supports the award. Specifically, the Authority found that the arbitrator had not pointed to "any testimonial or documentary evidence" that established the grievant's entitlement to compensatory damages. Id. at 374. The Authority concluded that, in the absence of the requisite findings, the award was deficient and remanded the part of the award concerning compensatory damages to the parties for resubmission to the arbitrator to obtain a clarification of the award under the standards articulated in the case. Id.

      As in Patent and Trademark Office, the Arbitrator in this case cited no testimonial or documentary evidence in support of her award of compensatory damages. Accordingly, consistent with Patent and Trademark Office, the award will be remanded to the parties for resubmission to the Arbitrator in order that they might obtain a clarification by the Arbitrator of the grievant's entitlement to compensatory damages applying the criteria set forth in Patent and Trademark Office.

VII.     Decision

      The Agency's exceptions as to the Arbitrator's award with respect to the higher-graded duties grievance, the discrimination grievance, and the retaliation grievance are denied. The award as to punitive damages is set aside. The award as to compensatory damages is remanded to the parties for resubmission to the Arbitrator, absent settlement, so that they might obtain a clarification of the award. [ v56 p301 ]


APPENDIX

1.     The following is a brief chronology of the events of this case:

May 1994 to October 1995:     Grievant assigned work on the STAWRS project.
October 10, 1995:     Grievant removed from the STAWRS project.
October 23, 1995:     Higher-graded duties grievance filed.
November 22, 1995:     Retaliation grievance filed.
December 20, 1996:     Performance grievance filed; withdrawn from consolidated grievances by Union at arbitration.
January 25, 1996:     EEO complaint filed.
May 29, 1996:     Director of Agency's EEO Complaint Center dismisses portions of EEO complaint because matters previously filed under grievance procedure.
August 26, 1996:     Union amends retaliation grievance to add discrimination claim.
August 28, 1997:     "Regional Director" affirms dismissal of portions of EEO complaint.
February 24, 1998:     First hearing in arbitration case.
March 30, 1998:     EEO AJ issues recommended decision.
May 13, 1998:     Agency adopts AJ's recommended decision as final Agency decision.
May 20, 1998:     Second hearing in arbitration case.
January 9, 1999:     Arbitrator issues award in case.

2.     Article 16, Section 1.B.2. provides as follows:

If an employee is not detailed to a position of higher grade, but who performs higher graded duties for twenty- five percent (25%) or more of his or her direct time during the preceding four (4) months, the Employer will temporarily promote the employee retroactive to the first full pay period if the employee meets the following criteria:
(a)     the employee performed such higher graded duties at least at a level of skill and responsibility properly expected;
(b)     the employee meets minimum OPM qualifications for the promotion to the next higher grade, and;
(c)     the employee meets the time-in-grade requirements for promotion to the next higher grade[.]

3.     The issues accepted for processing by the Agency's Equal Opportunity Office were stated as follows:

Whether Complainant was discriminated against because of her race (African American), sex (female), and religion (Christianity) when allegedly commencing in January 1995 through December 19, 1995, Complainant was harassed with regard to working conditions, e.g.:
(1)     given an excessive workload;
(2)     approval of holiday leave was delayed for four months;
(3)     informed via cc mail that she could not use cc mail or interoffice mail system to conduct the agency's business;
(4)     Supervisor discusses Complainant's private affairs with other managers and employees;
(5)     requested by the Chief, Automation Support Branch (ASB) to develop point paper, which would include conflicts of interest about STAWRS project to convince upper management not to extend the MITRE contract;
(6)     directed by the Chief, ASB to perform actions that are in conflict with Federal regulations and ethics, e.g., extend the MITRE contract based on the limitation of cost clause; and to modify and change contract [ v56 p302 ] clauses without obtaining deviations and regulatory approvals;
(7)     not acknowledged by management for her involvement in the STAWRS project, or for attending a White House function involving the project;
(8)     work assignments are consistently taken from the Complainant and assigned to other employees;
(9)     on December 19, 1995, Complainant received hate mail and a Star of David after singing a Christmas song during the office holiday party, etc.

4.     29 C.F.R. § 1614.301(a) provides as follows:

§ 1614.301 Relationship to negotiated grievance procedure.
     (a)     When a person is employed by an agency subject to 5 U.S.C. 7121(d) and is covered by a collective bargaining agreement that permits allegations of discrimination to be raised in a negotiated grievance procedure, a person wishing to file a complaint or a grievance on a matter of alleged employment discrimination must elect to raise the matter under either part 1614 or the negotiated grievance procedure, but not both. An election to proceed under this part is indicated only by the filing of a written complaint; use of the pre-complaint process as described in § 1614.105 does not constitute an election for purposes of this section. An aggrieved employee who files a complaint under this part may not thereafter file a grievance on the same matter. An election to proceed under a negotiated grievance procedure is indicated by the filing of a timely written grievance. An aggrieved employee who files a grievance with an agency whose negotiated agreement permits the acceptance of grievances which allege discrimination may not thereafter file a complaint on the same matter under this part 1614 irrespective of whether the agency has informed the individual of the need to elect or of whether the grievance has raised an issue of discrimination. Any such complaint filed after a grievance has been filed on the same matter shall be dismissed without prejudice to the complainant's right to proceed through the negotiated grievance procedure including the right to appeal to the Commission from a final decision as provided in subpart D of this part. The dismissal of such a complaint shall advise the complainant of the obligation to raise discrimination in the grievance process and of the right to appeal the final grievance decision to the Commission.

5.     5 U.S.C. § 2302(b)(1) provides, in relevant part, as follows:

§ 2302. Prohibited personnel practices
.      .      .      .
(b)     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)[.]
.     .     .     .
(8)     take or fail to take, or threaten to take or fail to take, a personnel action with respect to any employee or applicant for employment because of--
(A)     any disclosure of information by an employee or applicant which the employee or applicant reasonably believes evidences--
(i)     a violation of any law, rule, or regulation, or
(ii)     gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety;
if such disclosure is not specifically prohibited by law and if such information is not specifically required by Executive order to be kept secret in the interest of national defense or the conduct of foreign affairs; or
(B)     any disclosure to the Special Counsel, or to the Inspector General of an agency or other employee designated by the head of the agency to receive such disclosures, of information which the employee or applicant reasonably believes evidences--
(i)     a violation of any law, rule, or regulation, or
(ii)     gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety; [ v56 p303 ]
(9)     take or fail to take, or threaten to take or fail to take, any personnel action against any employee or applicant for employment because of--
(A)     the exercise of any appeal, complaint, or grievance right granted by any law, rule, or regulation;
.     .     .     .
(C)     cooperating with or disclosing information to the Inspector General of an agency, or the Special Counsel, in accordance with applicable provisions of law; or
(D)     for refusing to obey an order that would require the individual to violate a law[.]

6.     Article 4 of the parties' collective bargaining agreement provides, in relevant part, as follows:

ARTICLE 4
PROTECTION AGAINST PROHIBITED
PERSONNEL PRACTICES, PREAMBLE

The parties mutually recognize that personnel management should be implemented consistent with the following merit system principles:
1.     Recruitment should be from qualified individuals from appropriate sources in an endeavor to achieve a work force from all segments of society. [Selection] and advancement should be determined solely on the basis of relative ability, knowledge, and skills after fair and open competition which assures that all receive opportunity.
2.     All employees and applicants for employment should receive fair and equitable treatment in all aspects of [personnel] management without regard to political affiliation, race, color, religion, national origin, [] marital status, age, or handicapping condition, and with regard for their privacy and constitutional rights.
.      .      .      .
7.     Employees should be provided effective education and training in cases in which such education and training would result in better organizational and individual performance.
.      .      .      .
9.     Employees should be protected against reprisal for the lawful disclosure of information which the employees reasonably believe evidence:
(a)     A violation of any law, rule, or regulation . . . .

7.     42 U.S.C. § 1981a(b)(1) provides as follows:

§ 1981a. Damages in cases of intentional discrimination in employment
.      .      .      .
(b)     Compensatory and punitive damages
(1)     Determination of punitive damages
A complaining party may recover punitive damages under this section against a respondent (other than a government, government agency or political subdivision) if the complaining party demonstrates that the respondent engaged in a discriminatory practice or discriminatory practices with malice or with reckless indifference to the federally protected rights of an aggrieved individual.
.      .      .      .



Footnote # 1 for 56 FLRA No. 41

   For the convenience of the reader, a chronology of the events of this case is set forth at 1. of the Appendix to this decision.


Footnote # 2 for 56 FLRA No. 41

   The text of Article 16, Section 1.B.2. is set forth at 2. of the Appendix to this decision.


Footnote # 3 for 56 FLRA No. 41

   The Arbitrator did not further clarify her reference to the "Inspector." In context, however, we conclude that the reference is to the Agency's Inspector General.


Footnote # 4 for 56 FLRA No. 41

   The Arbitrator did not specify the date on which the grievant was removed from the STAWRS project. The grievant's own summary of events indicates that she was removed from STAWRS on October 10, 1995. See Letter from Office of Special Counsel dated November 25, 1995; Attachment to Agency Exceptions. The Union also indicates that this was the date. Union Opposition at 13.


Footnote # 5 for 56 FLRA No. 41

   In December 1995, the grievant filed a grievance alleging that her performance evaluation violated the parties' collective bargaining agreement. The Union states that the December grievance was withdrawn at arbitration. Union Opposition at 1, n.1. Consequently, that grievance is not a part of this case.


Footnote # 6 for 56 FLRA No. 41

   The EEO complaint is not included in the record of this case. The issues accepted for processing by the Agency's Equal Opportunity Office are set forth at 3. of the Appendix to this decision.


Footnote # 7 for 56 FLRA No. 41

   Subsequent to this dismissal, EEOC regulations were revised. The current version of the cited regulation is 29 C.F.R. § 1614.301(a). The text of 29 C.F.R. § 1614.301(a) is set forth at 4. of the Appendix to this decision.


Footnote # 8 for 56 FLRA No. 41

   The record does not contain this document.


Footnote # 9 for 56 FLRA No. 41

   This decision was not appealed to the EEOC. See Martin v. Rubin, EEOC Appeal No. 01983339.


Footnote # 10 for 56 FLRA No. 41

   Although the Arbitrator refers to "the prohibited personnel action statute," Award at 25, and "the Prohibited Personnel Practices Statute," id. at 26, she nowhere cites the relevant provisions of law. Portions of 5 U.S.C. § 2302(b) are set forth at 5. of the Appendix to this decision.


Footnote # 11 for 56 FLRA No. 41

   As noted above at n.2, the text of Article 16, Section 1.B.2. is set forth at 2. of the Appendix to this decision. The reference to "Article 4, Preamble, 1, 2 ,7" in the award appears to contain a typographical error. In setting forth a summary of applicable statutory, regulatory and contractual provisions in her decision, Award at 4, the Arbitrator quoted subsections 1, 2, and 9 of the Preamble to Article 4. In her decision, the Arbitrator found a violation of Article 4, Section 9. Award at 26. The text of the quoted subsections is set forth at 6. of the Appendix to this decision. The text of 5 U.S.C. § 2302(b)(1) is set forth at 5. of the Appendix.


Footnote # 12 for 56 FLRA No. 41

   Rather than grouping all the nonfact exceptions together, for example, as did the Agency, the exceptions set forth herein are grouped according to the issue resolved by the Arbitrator.


Footnote # 13 for 56 FLRA No. 41

   As noted above, n.9, the Arbitrator relied on 29 C.F.R. § 1614.207(d), currently 29 C.F.R. § 1614.301(a), which implements section 7121(d) of the Statute. See 4. of the Appendix to this decision.


Footnote # 14 for 56 FLRA No. 41