2011-4668. Arbitration Panel Decision Under the Randolph-Sheppard Act

AGENCY:

Department of Education.

ACTION:

Notice.

SUMMARY:

The Department of Education (Department) gives notice that, on September 28, 2010, an arbitration panel rendered a decision in the matter of Calvette Brown v. Illinois Department of Human Services, Division of Rehabilitative Services, Case no. R-S/09-3. This panel was convened by the Department under 20 U.S.C. 107d-1(a), after the Department received a complaint filed by the petitioner, Calvette Brown.

FOR FURTHER INFORMATION CONTACT:

You may obtain a copy of the full text of the arbitration panel decision from Suzette E. Haynes, U.S. Department of Education, 400 Maryland Avenue, SW., room 5022, Potomac Center Plaza, Washington, DC 20202-2800. Telephone: [phone]. If you use a telecommunications device for the deaf (TDD), call the Federal Relay Service (FRS), toll-free, at 1-800-877-8339.

Individuals with disabilities may obtain this document in an accessible format (e.g., braille, large print, audiotape, or computer diskette) on request to the contact person listed under FOR FURTHER INFORMATION CONTACT.

SUPPLEMENTARY INFORMATION:

Under section 6(c) of the Randolph-Sheppard Act (Act), 20 U.S.C. 107d-2(c), the Secretary publishes in the Federal Register a synopsis of each arbitration panel decision affecting the administration of vending facilities on Federal and other property.

Background

Calvette Brown (Complainant) alleged violations by the Illinois Department of Human Services, Division of Rehabilitative Services, the State licensing agency (SLA), under the Act and implementing regulations in 34 CFR part 395. Specifically, Complainant alleged that the SLA improperly administered the transfer and promotion policies and procedures of the Illinois Randolph-Sheppard Vending Facility Program in violation of the Act, implementing regulations under the Act, and State rules and regulations in Complainant's bid to manage the vending machine facility at the United States Postal Service facility (USPS facility) on Northwest Highway in Palatine, Illinois.

On January 28, 2009, Complainant participated in an interview process with the SLA concerning the USPS facility. On February 10, 2009, Complainant was selected as the successful bidder and awarded a vending contract at the USPS facility. On February 20, 2009, another vendor in the selection process filed a grievance with the SLA contesting the Complainant's award of the USPS facility contract. On the same date, the SLA notified Complainant that the implementation of her vending contract at the USPS facility was being suspended pending the outcome of the other vendor's grievance.

On May 14, 2009, the SLA held a state fair hearing for the vendor contesting Complainant's award of the USPS facility. On June 4, 2009, the hearing officer ruled that the January 28, 2009 interview process, in which Complainant participated, was not impartial or objective. Thus, the hearing officer ordered that the January 28, 2009 interview process be invalidated and that another interview process be held.

On June 9, 2009, Complainant filed a grievance with the SLA of the hearing officer's decision in the other vendor's state fair hearing. Complainant participated in the new interview process on July 2, 2009. However, she was not awarded the USPS facility contract.

On July 22, 2009, Complainant filed a grievance with the SLA challenging the SLA's decision to award the contract for the USPS facility to the other vendor after the conclusion of the new interview process. On July 24, 2009, the SLA filed a motion with the hearing officer to dismiss Complainant's grievance. On July 27, 2009, Complainant filed a written objection to the SLA's motion.

On August 12, 2009, a state fair hearing was held on the award of the contract to another vendor. The hearing officer directed both the Complainant and the SLA to submit briefs regarding the SLA's Motion to Dismiss. On September 23, 2009, the hearing officer issued a Memorandum recommending that the SLA's motion be granted, ruling that the Complainant did not have the right to appeal a decision to award a contract to another vendor. However, the hearing officer noted that Complainant had the right to challenge the SLA's decision to terminate her contract at the USPS facility in a separate process under the SLA's administrative rules.

On September 25, 2009, the SLA director issued a decision as final agency action adopting the hearing officer's recommendation and dismissed Complainant's grievance on the grounds that she sought to appeal a non-appealable issue—namely, the final decision in the grievance of another vendor in violation of the SLA's administrative rules. Complainant sought review by a federal arbitration panel of the SLA's final decision. On July 21, 2010, a federal arbitration panel heard this complaint. According to the arbitration panel, the central issue was whether the Illinois Department of Human Services, Division of Rehabilitative Services wrongfully dismissed the attempt by the Complainant to appeal a decision rendered in another blind vendor's state fair hearing.

Arbitration Panel Decision

After hearing testimony and reviewing all of the evidence, the panel ruled to uphold the state fair hearing officer's decision to summarily dismiss the Complainant's appeal of another vendor's state fair hearing decision. Specifically, the panel relied on the Illinois Administrative Code (IAC) Title 89; Social Services, Chapter IV, Department of Human Services, Subchapter a: General Program Provisions, Part 510, Appeals and Hearings Sections 510.20 and 510.l30 which states that a vendor cannot appeal another vendor's decision.

However, the panel noted that the IAC does allow Complainant to file her own grievance in opposition to the other vendor being awarded the USPS facility contract. The panel further denied Complainant's request for costs and attorneys' fees concluding that these expenses were incurred by the Complainant when she pursued the wrong course of action instead of filing her own grievance regarding the decision to award the other vendor the contract for the USPS facility.

The views and opinions expressed by the panel do not necessarily represent the views and opinions of the Department.

Electronic Access to This Document: You can view this document, as well as all other Department of Education documents published in the Federal Register, in text or Adobe Portable Document Format (PDF) on the Internet at the following site: http://www.ed.gov/​news/​fedregister. To use PDF you must have Adobe Acrobat Reader, which is available free at this site.

Note:

The official version of this document is the document published in the Federal Register. Free Internet access to the official edition of the Federal Register and the Code of Federal Regulations is available on GPO Access at: http://www.gpoaccess.gov/​nara/​index.html.

Dated: February 25, 2011.

Alexa Posny,

Assistant Secretary for Special Education and Rehabilitative Services.