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56 FLRA No. 41
U.S. Department of the Treasury Internal Revenue Service, Oxon Hill, Maryland and NTEU, Chapter 65 (McKissick, Arbitrator), 0-AR-3149 (Decided April 28, 2000)
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. The Authority denied the Agency's exceptions with respect to the higher-graded duties grievance, the discrimination grievance, and the retaliation grievance. It set aside the award as to punitive damages, and remanded to the parties the portion dealing with compensatory damages for resubmission to the Arbitrator.
The Authority concluded that the matter at issue here was arbitrable under section 7121(d). The Authority noted that the Arbitrator properly addressed the issue of 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. 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. The Authority found that the Arbitrator's conclusion that the Administrative Judge (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, was consistent with law.
The Authority also rejected the allegations that the award was based on a nonfact, or that it failed to draw its essence form the agreement. Additionally, the Authority noted that it was not necessary to address the Agency's exceptions with respect to the retaliation grievance. It noted that it 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. 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. 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 was deficient means that the award would stand regardless of whether the exceptions to the Arbitrator's retaliation findings were deficient.
Regarding, the exceptions concerning punitive damages, the Authority noted that it was not necessary to review the award of punitive damages de novo because the Union conceded that the award was deficient under 42 U.S.C. § 1981a(b)(1). Accordingly, the award of punitive damages was found deficient and was set aside.
Regarding compensatory damages, the Authority stated that an award of compensatory damages must be based on objective evidence. Here, the Authority found that the arbitrator had not pointed to any testimonial or documentary evidence that established the grievant's entitlement to compensatory damages. Accordingly, the award was remanded to the parties for resubmission to the Arbitrator.