American Federation of Government Employees, Local 704 (Union) and U.S. Environmental Protection Agency, Region 5, Chicago, Illinois (Agency)

[ v57 p468 ]

57 FLRA No. 88

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 704
(Union)

and

U.S. ENVIRONMENTAL PROTECTION AGENCY
REGION 5, CHICAGO, ILLINOIS
(Agency)

0-AR-3342

_____

DECISION

September 21, 2001

_____

Before the Authority: Dale Cabaniss, Chairman;
Carol Waller Pope and Tony Armendariz, Members.

Decision by Chairman Cabaniss for the Authority.

I.     Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator Daniel G. Jacobowski filed by the Union under § 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 a grievance alleging that the grievant's non-selection for promotion to an Environmental Protection Specialist (EPS) position, GS-9, violated the parties' collective bargaining agreement and applicable law, namely, 42 U.S.C. § 2000 (the Civil Rights Act, Title VII) and merit systems principles. [n1] 

II.     Background and Arbitrator's Award

      On June 12, 1998, the Office of Personnel Management (OPM) published a merit promotion vacancy announcement for two EPS positions, a grade 9 and a grade 11. The announcement closed on July 2, 1998. [n2]  The grievant, employed as an Environmental Protection Assistant (EPA), GS-7 in the Super Fund Division, sought promotion to the EPS position, GS-9. A co-worker also applied for the position. OPM certified four names as eligible, including the grievant. Grievant's co-worker's name was not listed. However, based on the co-worker's successful appeal, OPM included her name on a revised certification list that included five names.

      In October 1998, the grievant filed an unfair labor practice (ULP) charge claiming that after her return from a detail, her supervisor had not returned her to her regular duties but had assigned her file clerk type work and had harassed her. [n3]  On November 10, 1998, the grievant's supervisor selected her co-worker for the EPS, GS-9 vacancy. On February 24, 1999, the ULP charge was settled. On March 17, 1999, the grievant filed a grievance alleging that her supervisor's failure to select her for the EPS position was a reprisal for previously-filed ULP and EEO charges and that she was entitled to the position and back pay for EPS duties she performed from October 1995 through December 1997. In August 1999, the grievant voluntarily resigned from her position. However, the grievance remained unresolved and the matter was submitted to arbitration.

      The Arbitrator framed the issue as:

Did the [A]gency violate the contract and applicable law by wrongfully failing to select grievant . . . for a promotion vacancy, and wrongfully give preferential treatment to the person instead selected? If so, what is the appropriate remedy?

Award at 1.

      The Arbitrator found that the Union ha[d] failed to prove its case, and that the evidence fully support[ed] the [A]gency determination that [the supervisor] was not unfair to the grievant and [chose the selectee] for the promotion as the best qualified candidate. Id. at 8. In so finding, the Arbitrator first found that the evidence did not show that the supervisor exhibited racial bias to the grievant. The Arbitrator credited the supervisor's testimony that he was unaware that the grievant claimed an identity of being a black African-American until so informed by the [Equal Employment Opportunity (EEO)] officer. Id. According to the Arbitrator, his own observation of the grievant`s appearance and her [ v57 p469 ] admission at the hearing that she is light skinned added confirmation to [the supervisor's] credibility. Id. The Arbitrator further found that the fact that the selectee was an intern under the Environmental Careers Organization (ECO) program and is an African American further refuted the claim of bias.

      The Arbitrator also found that the grievant's claim of harassment by the supervisor was not supported by the evidence. The Arbitrator credited the supervisor's explanation that disputed the grievant's claim of harassment and further found that the evidence established that the supervisor complied with the prior settlements and afforded the grievant training and opportunities for limited site work. The Arbitrator also found that three supervisory levels, including the current supervisor, found certain problems or shortcomings on the part of grievant including attendance problems, frequent visitors, too many personal phone calls, and being away from her desk.

      The Arbitrator found that the evidence refuted the Union's claim the selectee was given preferential treatment. He found that the selectee's certification was made by OPM and not the Agency. Accordingly, he concluded that the evidence fully supports the [A]gency position that it was not unfair to the grievant and that the selection . . . was made on a proper basis as the best person qualified. Id. at 9. The Arbitrator denied the grievance.

III.     Positions of the Parties

A.     Union's Exceptions

      The Union raises a number of contentions it claims show that the Arbitrator denied it a fair hearing and that the award was based on nonfacts.

      First, the Union challenges the Arbitrator's credibility determinations. The Union contends that the Arbitrator credited the supervisor's testimony that he was not aware that the grievant was an African American until informed by the EEO officer and did not credit grievant's crucial testimony showing that the supervisor had visited her work station and seen pictures of her family that indicated her race. Exceptions at 4. According to the Union, this evidence alone shows pretext by the Agency. Id. The Union contends that the Arbitrator never addressed this evidence. The Union also asserts that the Arbitrator's observation of the grievant's and the selectee's complexions shows his perception that color was relevant regardless of testimony and documentary evidence. Id. at 7. This evidence, according to the Union, establishes that the Arbitrator denied it a fair hearing.

      The Union's next contention concerns the Arbitrator's rulings on its witness requests. The Union contends that it objected to the Arbitrator permitting the supervisor, who it claims was a key witness, to remain in the hearing during other witnesses' testimony but the Arbitrator overruled its objection. The Union asserts that the supervisor was not an Agency representative and his presence during the hearing disadvantage[d] the Union. Id. at 6. The Union references statements it contends certain witnesses made after the hearing that it believes support this position. The Union also contends that the Arbitrator denied its request for the EEO officer to testify based on confidentiality claims raised by the Agency.

      The Union disputes the Arbitrator's finding that the grievant's harassment claim was not supported by the evidence. According to the Union, the Arbitrator disregarded evidence showing the grievant's supervisor did not comply with the ULP and EEO complaint settlements. Additionally, the Union claims that this evidence shows the award is based on a nonfact. Exceptions at 9. The Union also claims there was evidence rebutting the Arbitrator's finding that three supervisory levels found problems concerning the grievant's attendance, phone calls, visitors to her work site, and absence from her desk, but the Arbitrator ignored this evidence. [n4] 

      The Union further contends that the leave issue only surfaced prior to the vacancy posting and after the filing of the EEO complaint, and that it was prepared to address this issue with the aid of the EEO officer witness. The Union contends the Arbitrator ignored evidence that the grievant had received continuous ratings of exceed expectations and fully successful.

      The Union further disputes the Arbitrator's finding that the selectee's certification determination was made by OPM and not the Agency. According to the Union, it submitted evidence showing that the selectee did not meet the necessary qualifications; that she falsified her application by stating she was a grade 7, and a GS 9, when clearly she was a GS-6; and that the certification came 33 days after the announcement closed. Id. at 10 and 11. The Union asserts that the Agency acknowledged that the selectee made a mistake on the application, and contends that such mistake resulted in a flawed selection. Id. at 11. The Union contends that this evidence establishes that it was denied a fair hearing and the award is based on a nonfact. [ v57 p470 ]

      The Union also refers to a document identified as a request for personnel action and argues that this document shows the supervisor took steps to insure that the selectee met the qualifications for the position. [n5]  The Union claims that the Arbitrator disregarded this document showing preferential treatment by the supervisor. Id. at 13.

      The Union lists certain actions that it contends show that the Arbitrator was biased, including the Arbitrator's response to its request for an alternate hearing date due to the death of its representative's relative, his denial of its witness requests, and his alleged ignoring of relevant evidence.

      Referring to its prehearing brief, the Union contends that the award is contrary to law and regulation. The Union asserts that the award is contrary to Title VII of the Civil Rights Act, 42 U.S.C. Section 2000e-16, because the Agency, in filing the position discriminated against the grievant based on race and reprisal for filing an EEO complaint. The Union asserts that the Arbitrator's reliance on his finding that the selectee was an African American shows his perception, which is erroneous, that discriminatory actions can be masquerade[d] . . . by hiring a member of the same race or gender. Id. at 7.

      The Union further asserts that the Agency produced no evidence to show the selectee was an intern during her appointment, and references arguments in its brief and certain testimony that it claims show the selectee was not chosen because of her involvement in a training program.

      The Union also contends that the award is contrary to 5 U.S.C. §§ 2302(b)(4) and (b)(6) because the supervisor knew the selectee's grade was incorrect on her application and knew of this intended deceit but did nothing to alert OPM and gave the selectee preferential treatment. [n6]  Id. at 17 (referencing post hearing brief).

B.     Agency Opposition

      According to the Agency, the Union is attempting to show that the Agency violated Title VII of the Civil Rights Act based on reprisal and race.

      Citing Fodale v. Dep't of HHS, EEOC Request No. 05060344 (October 16, 1988), the Agency sets forth the test for establishing a prima facie case of reprisal discrimination. Opposition at 5. Referring to testimonial and documentary evidence, the Agency asserts that the Arbitrator relied on the record in finding that the Union's allegation of harassment was not supported by the evidence. [n7]  The Agency refers to other documents and testimony and contends that the evidence further shows that the supervisor gave grievant assignments consistent with her EPA responsibilities and afforded her training and that he did comply with the EEO and ULP settlements. [n8] 

      Further, citing AFGE, Local 3615, 55 FLRA 1160, 1162 (1999) (citing McDonnell Douglas v. Green, 411 U.S. 792, 802 (1973), the Agency sets forth the test for showing discrimination based on race. The Agency states that the evidence relied on by the Arbitrator to support his determination that the supervisor did not exhibit racial bias included the supervisor's testimony that he was unaware of grievant's minority status until [ v57 p471 ] the EEO officer informed him of the basis of the EEO complaint and the grievant's race. According to the Agency, the Arbitrator found the supervisor credible because the fact that the grievant is African American is not evident by her appearance. Moreover, according to the Agency, the Union believed it necessary to clarify this point by asking the grievant her race. Opposition at 6 n.3 (citing Transcript (Tr.), Vol. 2 at 32). The Agency asserts that the supervisor testified that he did not make any assumptions about [the grievant's] race, based on pictures in her work space, because he `didn't think that was a concern.' Id. (quoting Tr. Vol. 3 at 101).

      The Agency contends that the Arbitrator correctly found that it did not violate merit principles in choosing the selectee. The Agency asserts that the selectee's application is clear that she was a `federal civilian employee' [previously] with the Social Security Administration [SSA], and that her highest grade at SSA was a GS-6. Id. at 9 and Attachment 5, Agency Exhibit OF 612, Application. The Agency also asserts that the record shows her highest civilian grade overall was a GS-7, when she worked as a summer intern in the Agency's Office of Regional Counsel (ORC).

      Further, the Agency asserts that the selectee did not receive an advantage because of the mistakes in her application. According to the Agency, while she incorrectly answered GS-9 to the question What is the General Schedule grade level of your current Federal civilian position[,] she answered GS-7 to the question What is the highest grade level you have held for a minimum of at least one year in a nontemporary civilian Federal position. Id. The Agency asserts that while the selectee was not a Federal employee at the GS-9 level, the position she held through ECO was an EPS position and she performed work in ORC. The Agency contends that the selectee clarified her work experience in a July 29 letter to OPM and that, as found by the Arbitrator, OPM included her name on the best qualified list after a second review of her application and consideration of her appeal. Therefore, the Agency asserts that the award is consistent with merit principles.

      The Agency contends that the Union was not denied a fair hearing because the Arbitrator did not refuse to hear or consider pertinent and material evidence presented by the Union. The Agency states that the Arbitrator sustained its objection to the EEO officer's testimony because the Union did not know the time frame of the information about which it wanted her to testify and alleged statements [she] was to testify about were a part of . . . the 1998 EEO settlement[,] and, thus, the Arbitrator questioned the relevancy of her testimony. Id. at 11. The Agency asserts that the Arbitrator allowed the supervisor to be present during the hearing because he was assisting the Agency in its defense and because he was accused of discriminating against the grievant.

      The Agency next disputes the Union's bias contention, arguing that the record shows the Arbitrator allowed the Union great latitude in the presentation of its case. Id. at 12. The Agency asserts that the affidavit submitted by the grievant does not establish that the Arbitrator was biased.

      The Agency construes the Union's assertions that the evidence was not fully considered by the Arbitrator, and that race, reprisal, and preferential treatment for the selectee . . . were contributing factors in the selection process as a nonfact claim. Id. at 14. The Agency contends that the supervisor's nondiscriminatory reasons for choosing the selectee are supported by the Arbitrator's findings that she: had excellent experience and recommendations from SSA; worked in the ORC office as a paralegal and received high praise for her work; and was the best qualified based on her skills and demonstrated ability.

      The Agency also contends the evidence shows that OPM scrutinized [the selectee's] application and determined her eligible for the `best qualified' list. Id. at 15 (citations omitted).

IV.     Analysis and Conclusions

A.     The Arbitrator Conducted a Fair Hearing

      The Union cites various instances that it contends demonstrate that the Arbitrator denied it a fair hearing. In particular, the Union contends that the Arbitrator ignored or disregarded evidence that refuted the Agency's contention that the grievant's non-selection for the EPS position was not based on discrimination or reprisal.

      The Authority will find an award deficient when it determines that an arbitrator failed to conduct a fair hearing by refusing to consider pertinent and material evidence or by other actions which prejudice a party and affect the fairness of the proceeding as a whole. AFGE, Local 1668, 50 FLRA 124, 126 (1995). Arbitrators have considerable latitude in the conduct of the hearing, and the fact that an arbitrator conducts a hearing in a manner that a party finds objectionable does not, in and of itself, provide a basis for finding an award deficient. AFGE, Local 22, 51 FLRA 1496, 1497-98 (1996). Additionally, disagreements with an arbitrator's findings of fact and evaluation of evidence and testimony, including the credibility of witnesses and the weight to [ v57 p472 ] be given their testimony, will not establish that an award is deficient. SSA, Baltimore, Md., 55 FLRA 498, 501 (1999).

      In addressing the grievant's claim that the supervisor discriminated against her in the filling of the EPS position based on race, reprisal, and the preferential treatment of the selectee, the Arbitrator conducted an intensive review of the lengthy record. Award at 8. The Arbitrator also considered the grievant's testimony at the hearing. He also stated that the Union had intensively examined [the] supervisor . . . in an attempt to show racial bias and harassment by him to the grievant . . . in spite of his denials. Id. at 5.

      Having observed the witnesses and examined the evidence, the Arbitrator credited the supervisor's testimony that he was unaware that the grievant claimed an identity of being a black African-American until so informed by the EEO officer. Id. Thus, contrary to the Union's contention, the record shows that the Arbitrator did not ignore or disregard evidence that the grievant claimed indicated her race to her supervisor. As stated above, a union's disagreement with an Arbitrator's findings of fact and evaluation of the evidence and testimony, including the credibility of witnesses and the weight given their testimony, does not establish that an award is deficient.

      The Union further contends that the Arbitrator disregarded evidence that shows the supervisor harassed the grievant and did not comply with the ULP and EEO complaint settlements. The Arbitrator summarized evidence in the record put forth by the Union on the issue of harassment, including the grievant's claim that the supervisor failed to live up to the settlement terms on her prior complaints, for example, by failing to return her to her cubicle and prior duties after a detail and by limiting her to file clerk type work. Award at 4. This shows that the Arbitrator did not disregard evidence as asserted by the Union. Rather, the Arbitrator found the evidence did not support a conclusion that the supervisor failed to comply with the settlement agreements. Id. at 8. Accordingly, the Union has not established that this exception provides a basis for finding the award deficient. See, e.g., NFFE, Local 1437, 55 FLRA 1166, 1172 (1999).

      The Union also contends that the Arbitrator ignored evidence that rebutted testimony concerning the grievant's conduct at work, including her attendance, phone and leave usage. The records shows that the Arbitrator did not ignore such evidence. The Arbitrator specifically considered the grievant's response . . . that these [matters] were not called to her attention at the time and that she disagreed with these evaluations when later made. Award at 5. The Arbitrator also examined other evidence in the record, including the testimony of the grievant's former supervisor, in finding that the grievant had certain problems at work. The Union, therefore, has not established that the Arbitrator ignored evidence that rebutted testimony concerning the grievant's work performance. See, e.g., NFFE, Local 1437, 55 FLRA at 1172.

      The Union claims that the Arbitrator ignored evidence showing the selectee falsified her application and received preferential treatment. The Arbitrator examined the evidence presented by the Union to show that [the selectee] failed to meet the required qualifications for the promotion, including the testimony of various witnesses, the vacancy announcement, the selectee's qualifications and those listed on her application, and the claim that the selectee was given preferential treatment. Award at 5, 6, and 8. However, the Arbitrator found that the evidence as a whole fully refute[d] the attempt of the [U]nion to discredit the qualification and certification of [the selectee] and its claim that she was given preferential treatment. Id. at 8. The Union, therefore, has not established that the Arbitrator ignored evidence relating to the grievant's application and treatment. See, e.g., NFFE, Local 1437, 55 FLRA at 1172.

      The Union also has not established that the Arbitrator failed to conduct a fair hearing by his rulings on its witness requests. First, concerning the supervisor's presence at the hearing, the Arbitrator, after hearing the Union and Agency arguments, denied the request because he determined that the supervisor was assisting the Agency in its defense and also was the subject of the accusations of discrimination and reprisal. See Exceptions, Volume 1, TR. at 40-43. As to the EEO officer, the Agency objected to her testimony as irrelevant, arguing that it concerned matters not within the time frame of the grievance. See id. at 29. In responding to the Agency's objection, the Union stated that it did not know the time frame of the EEO officer's testimony and requested time to look into it. See id. at 29-32. The Arbitrator, noting that if the testimony concerned matters not within the time frame of the grievance it would not be allowed, granted the Union's request. The Union stated that if it found that the testimony concerned such matters, it would withdraw the request. Id. The Union has provided no evidence to show that it provided the Arbitrator any further information concerning this witness.

      Accordingly, the Union has not established that the Arbitrator, by his rulings, denied it a fair hearing. See, e.g., NATCA, Local NKT, 49 FLRA 499, 504-06 (1994) [ v57 p473 ] (arbitrators have considerable latitude in the conduct of hearings, and the fact that an arbitrator conducts a hearing in a manner that a party finds objectionable does not, in and of itself, provide a basis for finding an award deficient).

      Accordingly, the Union's exceptions provide no basis for finding that the Union was denied a fair hearing.

B.     The Award Is Not Based on A Nonfact

      The Union asserts that the award is based on a nonfact because the Arbitrator disregarded its evidence as described above.

      To establish that an award is based on 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 United States Dep't of the Air Force, Lowry AFB, Denver, Colo., 48 FLRA 589, 593 (1993). However, the Authority will not find an award deficient on the basis of an arbitrator's determination of any factual matter that the parties disputed at arbitration. Id. at 594 (citing Nat'l Post Office Mailhandlers v. Postal Serv., 751 F.2d 834, 843 (6th Cir. 1985)). Additionally, "[t]he mere fact that the appealing party disputes an arbitral finding does not provide a basis for finding that an award is based on a nonfact." AFGE, Local 1923, 51 FLRA 576, 579 (1995).

      Also, an arbitrator is not required to specify or discuss specific items of evidence on which an award is based or which otherwise were considered by the arbitrator. AFGE, Local 1592, 49 FLRA 1508, 1509-10 (1994). These principles appropriately accord deference to an arbitrator's factual findings, because the parties have bargained for the facts to be found by an arbitrator chosen by them. See AFGE, Local 2459, 51 FLRA 1602, 1607-08 (1996).

      In the instant case, the matters of whether the supervisor complied with the ULP and EEO complaint settlements and was aware that the grievant was African American, as well as whether there were problems with the grievant's past conduct and the facts concerning the selectee's application, were disputed by the parties at arbitration. Accordingly, the Union's exception does not provide a basis for finding the award deficient.

C.     The Arbitrator Was Not Biased

      To demonstrate that an award is deficient because of bias on the part of the arbitrator, a party must show that the award was procured by improper means, that the arbitrator was partial or corrupt, or that the arbitrator engaged in misconduct that prejudiced the party's rights. See, e.g., United States Dep't of Veterans Affairs, Med. Ctr., North Chicago, Ill., 52 FLRA 387, 398 (1996).

      Although the Union asserts that the Arbitrator's response to its representative's request for an alternate hearing date shows bias, the Union has not referenced any pages in the transcript or provided any documents that reflect the Arbitrator's statements. These assertions, without more, do not show that the award was procured by improper means, that the Arbitrator was partial or corrupt, or that the Arbitrator engaged in misconduct that prejudiced the Union's rights. See, e.g., NAGE, Local R4-45, 55 FLRA 695, 700-01 (1999).

      Also, the Union's contentions that the Arbitrator denied its witness requests and ignored certain evidence, that was discussed above, does not establish that the Arbitrator was biased or partial under any of the tests applied by the Authority. See, e.g., United States Dep't of Veterans Affairs, Med. Ctr., Ann Arbor, Mich., 56 FLRA 216, 220-21 (2000). Further, the assertion that the Arbitrator showed bias by his statement concerning the grievant's race and complexion does not establish that he was biased. The Arbitrator's statement was made to clarify the record in response to a question by the Union representative asking the grievant her race. See Exceptions, Volume II, Tr. at 32.

      Accordingly, the Agency has not demonstrated that the Arbitrator was biased.

D.     The Award Is Not Contrary to Title VII of the Civil Rights Act

      The Authority reviews the questions of law raised by the Union's exceptions de novo. See NTEU, Chapter 24, 50 FLRA 330, 332 (1995) (citing United States Customs Service v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994)). In applying the standard of de novo review, the Authority assesses whether the arbitrator's legal conclusions are consistent with applicable standards of law. See NFFE, Local 1437, 53 FLRA 1703, 1710 (1998). In making that assessment, the Authority defers to the arbitrator's underlying factual findings. See id.

      The Union asserts that the award is contrary to Title VII of the Civil Rights Act, 42 U.S.C. Section [ v57 p474 ] 2000e-16, because the Agency discriminated against the grievant based on race in making the selection.

      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 employee must establish a prima facie case by showing: (1) membership in a protected class; (2) qualifications for the position; (3) adverse employment action; and (4) some evidence that would allow the inference of improper motivation. See AFGE, Local 3615, 55 FLRA 1160, 1162 (1999) (citing Barge v. Anheuser Bush, Inc., 87 F.3d 256, 258 (8th Cir. 1996)). Once a prima facie case has been established, the burden shifts to the employer "to articulate some legitimate, nondiscriminatory reason for the employee's rejection." McDonnell Douglas, 411 U.S. at 802. Finally, if the employer articulates a legitimate nondiscriminatory reason for not selecting the employee, the burden shifts to the employee to show that [the employer's] stated reason for [the employee's] rejection was in fact pretext." McDonnell Douglas, 411 U.S. at 804.

      The Court in St. Mary's Honor Center v. Hicks, 509 U.S. 502, 509 (1993) (Hicks), clarified that the employer has discharged its burden if it produces evidence that, if taken as true, would permit the conclusion that there was a nondiscriminatory reason for the adverse action. If this occurs, then the fact finder must "decide the ultimate question: whether . . . [the employer] intentionally discriminated against the [employee]." Id. at 511. In cases where the employer has proffered a legitimate, nondiscriminatory reason for its actions, the issue of whether a prima facie case had been established is immaterial. United States Postal Service Board of Governors v. Aikens, 460 U.S. 711, 715 (1983) (Aikens).

      The Union asserts that the evidence discussed previously in the nonfact section shows that the grievant was discriminated against on the basis of race, and further argues that the fact that the selectee was African American does not refute the discrimination claim.

      The Arbitrator found that the Agency had established a legitimate, non-discriminatory reason for its action, specifically, that the selectee was the best qualified candidate. Award at 9. The Arbitrator's finding that the promotion was on that basis, and not from any reprisal nor unfair considerations to the grievant, id., constitutes a rejection of the Union's claim that the reason given was a pretext for discrimination. The Union has not established its claim that various facts underlying these conclusions are based on nonfacts, as noted above, and has not established any other error in the Arbitrator's conclusion.

      Furthermore, the Arbitrator did not err in finding, id. at 8, that the fact the selectee was African American further refute[d] the claim of racial discrimination. See, e.g., Johnson v. Wegman's, 1998 WL 15954 *4 (W.D.N.Y.) (mem.) (in determining whether employer discriminated against plaintiff, an African American applicant, court found, among other things, that evidence showing other African Americans were hired further refuted plaintiff's claim of discrimination).

      The Union also claims that the Agency harassed the grievant for filing previous EEO and ULP complaints. In McKenna v. Weinberger, 729 F.2d 783 (D.C. Cir. 1984) (McKenna), the court applied the framework set out in McDonnell Douglas, 411 U.S. at 802, to a retaliation claim under Title VII. The D.C. Circuit stated that to establish a prima facie case of unlawful retaliation, a plaintiff must show: "1) that she engaged in a statutorily protected activity; 2) that the employer took an adverse personnel action; and 3) that a causal connection existed between the two." McKenna, 729 F.2d at 790 (footnote omitted). As relevant here, "[t]he causal connection component of the prima facie case may be established by showing that the employer had knowledge of the employee's protected activity, and that the adverse personnel action took place shortly after that activity." Mitchell v. Baldridge, 759 F.2d 80, 86 (D.C. Cir. 1985) (footnote omitted).

      The Union asserts that certain evidence discussed with respect to its nonfact exception shows that the grievant was harassed because she filed the aforementioned complaints. As previously stated, however, the Union has not established that the award is based on a nonfact. The Arbitrator specifically found that the grievant's claim of harassment was not sustainable nor supported by the evidence because the supervisor did comply with the prior charge settlements and . . . did afford [the grievant] training and opportunities for limited site work of which she was capable and when available. Award at 8. The Arbitrator concluded, therefore, that the evidence established that the supervisor did not harass the grievant for filing the prior complaints. Based on these factual findings, to which we defer, the Union has not established that the award is contrary to law. See, e.g., NTEU, Chapter 168, 52 FLRA 1354, 1361-62 (1997). [ v57 p475 ]

E.     The Award Is Not Contrary to 5 U.S.C. § 2302(b)(4) and (b)(6)

      A prohibited personnel practice within the meaning of 5 U.S.C. § 2302(b)(6) requires an intentional or "purposeful taking of a personnel action in such a way as to give a preference to a particular individual for the purpose[] of improving her prospects for employment." NFFE, Local 1658 and U.S. Dep't of the Interior, BIA Albuquerque, New Mexico, 55 FLRA 668, 672 (1999) (BIA Albuquerque) (citing Special Counsel v. Byrd, 59 M.S.P.R. 561, 570 (1993)). Where an arbitrator finds that there is no evidence indicating that the agency's consideration of an applicant was the result of a personnel action intended to give the applicant a preference, the Authority will hold that the award is not contrary to section 2302(b)(6). NFFE, Local 1904, 56 FLRA 196, 198 (citing BIA Albuquerque, 55 FLRA at 672).

      The Arbitrator found the evidence refute[d] the Union's claim that the Agency gave the selectee preferential treatment in the filing of the vacancy. Award at 8. Specifically, he found that: the applications were reviewed and the certifications were made by OPM rather than by the Agency; the selectee was properly considered as a candidate of other status and as a reinstatement eligible; and the Agency proved that she was selected because she was the best qualified. The Authority defers to an arbitrator's factual findings supporting a conclusion that an award is consistent with 5 U.S.C. § 2302(b)(6). NFFE, Local 1904, 56 FLRA at 198. Accordingly, this exception provides no basis for finding the award deficient.

      With respect to § 2302(b)(4), the Union contends that the supervisor violated this section because he knew of the selectee's intention to deceive OPM with respect to the grade and position provided in her application, but did not inform OPM. Section 2302(b)(4) states that it is a prohibited personnel practice to deceive or willfully obstruct any person with respect to such person's right to compete for employment. As stated above, the Arbitrator found that the applications were reviewed and the certifications were properly made by OPM and not the Agency. The Arbitrator also found that the Agency proved the supervisor's choice was not based on any unfair considerations to the grievant. Award at 9. Consequently, based on the Arbitrator's factual findings, the Union has not demonstrated that the Agency deceived or willfully obstructed the grievant with respect to her right to compete for the promotion. The Union's exception, therefore, provides no basis for finding the award deficient.

V.     Decision

      The Union's exceptions are denied.



Footnote # 1 for 57 FLRA No. 88

   The Arbitrator also found that the grievance was arbitrable. No exceptions were filed to this finding. Therefore, the arbitrability determination will not be discussed further in this decision.


Footnote # 2 for 57 FLRA No. 88

   See Opposition, Agency Exhibit 5 (Merit Promotion Vacancy Announcement No. 98-77, opening June 12, 1998 and closing July 2, 1998).


Footnote # 3 for 57 FLRA No. 88

   Prior to this, in October 1996, the grievant had filed an EEO complaint alleging discrimination based on her race (African American), claiming she was denied an incentive award and opportunities for an EPS position. In 1997, the complaint was settled. Under the terms of the settlement agreement, the grievant was given an award and detail to other duties to help her qualify for an EPS position.


Footnote # 4 for 57 FLRA No. 88

   As the rebuttal evidence, the Union references the grievant's testimony that she responded by message to one of the supervisors, questioning the claims about her work.