FEDERAL MEDIATION AND CONCILIATION SERVICE

In the Matter of the Arbitration between FMCS No. 03-03795

Grievant R. Max Smith
OPEIU LOCAL NO. 2001,
Union,

and

U.S. DEPARTMENT OF ENERGY,

Agency.
_______________________________/

OPINION OF THE ARBITRATOR

October 10, 2003

After a Hearing Held June 25-26, 2003

At the Federal Office Building in Oak Ridge, Tennessee

For the Grievant: For the Agency:

Kent L. Booher S. Shea Luna

Attorney at Law Office of Chief Counsel
The Maxwell Place DOE Oak Ridge Operations Office
112 Kingston Street, Suite A PO Box 2001
Lenoir City, TN 37771-2926 Oak Ridge, TN 37831
 I. INTRODUCTION

I.A. Diversity Case

This is a diversity case. Coming as it does on the heels of the Supreme

Court’s recent pronouncements on the subject, Gratz v Bollinger, 156 L Ed 2d

257 (2003) (“University of Michigan 1” or “UM1”) and Grutter v Bollinger, 156

L Ed 2d 304 (2003) (“University of Michigan 2” or “UM2”), the case is

appropriate for consideration in light of the principles just laid down in those

two landmark cases, in which the High Court drew heavily from Justice

Powell’s principal opinion in Regents of Univ of Cal v Bakke, 438 US 265

(1978) (“Bakke”).

I.B. Background

Grievant, Ray Maxwell (R. Max) Smith, a professional engineer licensed

in Tennessee, Alabama, Virginia, Kansas, South Carolina, North Carolina,

Florida, California, and Kentucky, is employed as a metallurgical engineer1 by

the U.S. Department of Energy (“DOE” or “Agency”) in Oak Ridge, Tennessee.

He is a member of Local 2001 of the Office and Professional Employees

International Union, AFL-CIO (“Union”). Grievant alleges discrimination in the

promotion of [JAF], a native of Puerto Rico and a graduate of the University of

Puerto Rico, to the position of lead nuclear engineer, grade GS-14. Mr. [JAF],
1
As Grievant classifies himself in his grievance filings, AXs 11, 13, and 15, based upon the position
description given him by the Agency. However, he insists that he has “not yet been assigned or assumed
any Metallurgical Engineering duties at all.” UX 3 @ 8.

2
who describes himself as Hispanic in his Application for Federal Employment –

SF 171 (AX 6), will be referred to as the “Successful Candidate”.

The events of which Grievant complains had their genesis back in April

of 1995, when he competed and was selected for a temporary promotion from

nuclear engineer GS-13 to nuclear engineer GS-14. He was detailed from the

Nuclear Safety Division to Enrichment Facilities. Shortly thereafter, the

Successful Candidate, then a GS-13 general engineer, was transferred at his own

request from Nuclear Safety to the Y-12 Site Office. Y-12 is a uranium

manufacturing facility in Oak Ridge.

Grievant’s work in Enrichment Facilities involved regulatory oversight

under the supervision of J. Dale Jackson. Grievant also became involved with

implementation of the Price-Anderson Amendments Act.2 When responsibility

for Price-Anderson was transferred to Nuclear Safety under Martin H. McBride,

division director (“Director”), Grievant continued that work, as well as

regulatory oversight under Mr. Jackson.

2
The Price-Anderson Amendments Act of 1988, PL 100-408, provides indemnification (i.e., compensation
or exemption from incurred penalties or liabilities) to DOE contractors who manage and operate nuclear
facilities in the DOE complex. In essence, the Government acts as an insurer for these contractors against
any findings of liability arising from the nuclear activities of the contractor within the scope of its contract.

As part of its agreement to continue indemnification coverage, in 1988 Congress mandated that the DOE
develop and enforce nuclear safety requirements to minimize the risk of injury to workers and the public.
The DOE must ensure that nuclear activities are conducted in a manner that protects the environment and
human safety and health to achieve this goal. To help accomplish this, Price-Anderson provides the
Agency with enforcement authority for nuclear safety requirements. The requirements of Price-Anderson
are incorporated into the Atomic Energy Act in Section 234A.

3
 In June of 1997, the Director insisted that Grievant be returned to Nuclear

Safety so that he could work on Price-Anderson fulltime. Grievant’s detail to

Enrichment Facilities was terminated and he was reduced back to a GS-13, but

the very day after his return, he was sent to the Y-12 Site to work in the

Operations Division. In March of 1998, the Successful Candidate was detailed

from the Y-12 Site Office to the Nuclear Safety Division as a GS-13 nuclear

engineer to serve as acting team leader for the Facility Safety Team, a position

to which Grievant aspired.

This move prompted the first of several memos penned by Grievant, who

viewed it as favoritism shown by the Director toward the Successful Candidate.

In a memo dated March 19, 1998, addressed to Adolphus Brown in personnel

and copied to the Director, Grievant wrote:

I must concur with the team members and conclude it is apparent that the
incumbent’s appointment to this position was pre-determined; and that
Mr. McBride’s solicitation to NSD employees was a ruse … .
(Contained in UX 3, as well as in other exhibits.)

Following an unsatisfactory meeting with the Director on April 9, 1998,

Grievant wrote a memo to the Director, dated April 20, 1998, reiterating his

concerns and stating:

… I am perplexed by your explanation that you held the position open

for an inordinate amount of time “to assure that [JAF] had an opportunity
to be considered.” …

I still contend that your selection process constitutes a planned

4
 management action. I believe that your selection was not fair and
impartial. … (Contained in UX 3, as well as in other exhibits.)

In June of 1998, Grievant was transferred from the Operations Division

to the Y-12 Site Office, and the Successful Candidate was transferred from that

Office to Nuclear Safety. In August of 1999, the Successful Candidate was

temporarily promoted, on a non-competitive basis, to GS-14 lead nuclear

engineer to act as team leader for the Facility Safety Team. He was to occupy

the position held by Terry B. Olberding, who was on detail to Y-12. The

Successful Candidate’s temporary promotion was for the maximum allowable

120 days.3 After that period, his grade was lowered back to GS-13.

In December of 1999, Vacancy Announcement - # OR 00-68 was posted

for a lead nuclear engineer GS-14 (AX 4). Although the position was advertised

as a temporary one not to exceed one year, under CONDITIONS OF

EMPLOYMENT, the Announcement stated:

… This position may be extended beyond 1 year without further

competition, and may be converted to a permanent position without
further competition.

Eight candidates applied for the position, six of whom were rated “highly

qualified” by Human Resources (AX 5). Among those making the cut were

Grievant and the Successful Candidate. The other four were Teresa Michelle

3
See Article 17, Section 2.B (AX 7 @ 20).

5
Robbins,4 Randall M. DeVault, Michael R. Jugan, and John David Harris (AXs

5 & 6). The Director appointed a panel of three to screen the six highly qualified

applicants. The panel was headed by Brenda L. Hawks; the other members were

David R. Allen and Daniel K. Hoag.

The Director commissioned the panel to select the top three candidates

and submit their names to him in alphabetical order. Panel members each

independently selected a top three and discovered that each had selected the

same three, although not ranking them in identical order. The top three, listed

alphabetically, were:

DeVault, Randall M.
[JAF]
Robbins, Teresa M.

These three names were submitted to the Director in a memorandum dated

February 8, 2000 (AX 10).

The Director himself selected the Successful Candidate, whose

appointment was effective February 13, 2000 (AX 1). Grievant responded with

a grievance directed to Dan Hoag, acting director of the Technical Division (AX

11), in which he sought promotion to a permanent GS-14 grade. Mr. Hoag

denied the grievance in a memorandum dated February 25, 2000 (AX 12).

Grievant moved on to step two of the grievance procedure, March 2,

4
The arbitrator would be remiss if he did not note the praise heaped upon Ms. Robbins for her work in
preventing a plutonium explosion at the Rocky Flats Nuclear Power Plant.

6
2000, in a written submission directed to Corey A. Cruz, acting assistant

manager for Defense Programs (AX 13). The Agency’s negative response was

delivered in a memorandum dated March 22, 2000, signed by William J.

Brumley, the new acting assistant manager for Defense Programs (AX 14).

Undeterred, Grievant submitted his third-step grievance to G. Leah

Dever, manager of the National Nuclear Security Administration, on March 28,

2000 (AX 15). Ms. Dever enlisted the services of Don R. Sloan, lead contract

specialist GS-14, “to conduct a fact finding review of the events surrounding

[the] grievance and report back to [her] on his findings” (AX 16 @ 1).

Without addressing legal issues, Mr. Sloan did as requested and reported:

I find no basis that the selection of [JAF] for the GS-13 or GS-14
positions was inappropriate based on the information available to me.
UX 1 @ 7.

Ms. Dever then denied the grievance in a memorandum dated June 16, 2000

(AX 16), in which she also rejected Grievant’s proposed settlement through

promotion to senior weapons quality assurance engineer GS-14.

In an 8-page memo to Ms. Dever, dated June 29, 2000 (UX 3), Grievant

critiqued the Sloan report (UX 1) and expressed his disappointment:

I am disappointed that a review of my fifteen alleged violations of the

Prohibited Personnel Practices and Merit System Principles was not
undertaken … . UX 3 @ 1.

He continued to urge settlement through his promotion to GS-14 as a senior

7
weapons quality assurance engineer (UX 3 @ 7-8).

The Union demanded arbitration. The Successful Candidate’s temporary

position became permanent, as the Vacancy Announcement had indicated it

might. Apparently further attempts were made to settle the grievance, but they

failed. A hearing was held over two arduous days in the Federal Office Building

at Oak Ridge, Tennessee, June 25-26, 2003.

Fourteen witnesses testified. Regrettably, no court reporter was hired to

record their testimony, some of which was rather startling. The absence of a

transcript necessitates discussion of the testimony at a length greater than

otherwise would be customary. Grievant was represented by private counsel,

and M. Dalton Cooper, DOE shop chairman, attended on behalf of the Union

and also testified.

I.C. Procedural Preliminaries And Arbitrability

In the Agency’s initial response to Grievant (AX 12), it sought to

characterize his complaints as amounting to nothing more than dissatisfaction

over his nonselection for promotion from among a group of properly ranked and

certified candidates. The reason for this posture may be found in ORO O 320,

Chapter VII, Merit Promotions (AX 8). The NOTE to section 1.e(2)(a)

provides:

Nonselection for promotion from among a group of properly ranked and

certified candidates is excluded from both grievance procedures. … AX 8

8
 @ VII-10.

Oak Ridge Operations Order 320 is incorporated into the collective bargaining

agreement via Article 2, Section 1.A (AX 7 @ 1).

At first, the Agency proposed an initial proceeding to decide the

threshold issue of arbitrability. A briefing schedule was set in a conference call

with the arbitrator, who did not have a copy of the collective bargaining

agreement at that time. After the Agency filed a motion for summary judgment,

dated May 30, 2003, attention was called to Section 4.C of Article 12 of the

collective bargaining agreement, which provides:

In a grievance which includes a question of arbitrability, the arbiter will

hear both this issue and the merits of the case at the hearing but will
address the arbitrability question as a threshold issue in the decision. AX
7 @ 16.

Accordingly, the parties proceeded with a full hearing on the merits, at which

the Agency made its argument against arbitrability of the dispute, an argument

which it reasserts in its brief.

Another preliminary issue was the attendance of witnesses. In the more

than three years that had elapsed since the grievance was filed in February of

2000, the Director had retired and seemed reluctant to testify. The parties

consulted the arbitrator, who suggested resort to a subpoena pursuant to

Tennessee Code Annotated § 29-5-109 or 29-5-308, but that ultimately proved

unnecessary, as the Director relented and appeared voluntarily.

9
 Grievant’s complaints clearly are arbitrable because, as his counsel

explained in opening statement, the issue is not nonselection but discrimination.

In his third-step memo to G. Leah Dever (AX 15), Grievant charged the Agency

with no fewer than 15 violations of Title 5, United States Code. If each Code

subsection cited were in fact violated as charged, then the violations would

number in the dozens. In any event, every grievance by an individual over a

position of necessity will entail nonselection, since only someone passed over

will have standing to complain.

The NOTE to ORO O 320, Chapter VII, section 1.e(2)(a) means only

that a grievance may not be filed over nonselection, standing alone. However,

when nonselection results from a Prohibited Personnel Practice or violation of

the collective bargaining agreement, Merit System Principles, or any law, rule,

or regulation affecting conditions of employment, then an employee adversely

affected may file a grievance, else the negotiated grievance procedure would be

ineffectual. See 5 USC § 7121(d); Article 2, Section 1.A (AX 7 @ 1); Article 3,

Section 1 (AX 7 @ 2-3); Article 11, Sections 1.A, B (AX 7 @ 11-12); Article

17, Section 1.D (AX 7 @ 20). Moreover, the selection process itself is subject to

challenge under 5 CFR § 335.103(d) (AX 9). The dispute is arbitrable.

I.D. The Collective Bargaining Agreement

And The Civil Service Reform Act of 1978

The collective bargaining agreement (AX 7) is entitled “Agreement

10
between the Oak Ridge Operations Office and the Office of Scientific and

Technical Information U.S. Department of Energy and the Local No. 268 Office

and Professional Employees International Union (AFL-CIO) December 1995”.

Presumably Local No. 2001 has succeeded Local No. 268 and the contract has

been extended, although the parties do not address these issues. See Article 15,

Section 3 (AX 7 @ 18) and Article 30, Section 1 (AX 7 @ 36). Binding laws

and regulations are incorporated into the collective bargaining agreement in

Article 2, Section 1.A (AX 7 @ 1).

In Grievant’s third-step memo to Ms. Dever (AX 15), he charged the

Agency with violations of 5 USC §§ 2301(b)(1) and (2) and 5 USC §§

2302(b)(4), (5), (6), (8)(A)(i) and (12)5. The Merit System Principles from the

Civil Service Reform Act of 1978, 5 USC § 2301(b), are contained in Article 3,

Section 1 (AX 7 @ 2-3); the ones relevant to this arbitration are set forth below:

(1) Recruitment should be from qualified individuals from

appropriate sources in an endeavor to achieve a work force from all
segments of society, and 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 equal 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, sex, marital status, age, or handicapping
condition and with proper regard for their privacy and constitutional

5
5 USC § 2302(b)(11), as referenced by Grievant, is now (12). PL 105-339.

11
 rights. …

(8) Employees should be – (A) protected against arbitrary action,

personal favoritism, or coercion for partisan political purposes … .

Prohibited Personnel Practices are listed in 5 USC § 2302(b); the relevant

ones are set forth below:

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); …

(4) deceive or willfully obstruct any person with respect to such

person's right to compete for employment;

(5) influence any person to withdraw from competition for any

position for the purpose of improving or injuring the prospects of any
other person for employment;

(6) grant any preference or advantage not authorized by law, rule, or

regulation to any employee or applicant for employment (including
defining the scope or manner of competition or the requirements for
any position) for the purpose of improving or injuring the prospects of
any particular person for employment; …

(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, …

(12) take or fail to take any other personnel action if the taking of or
failure to take such action violates any law, rule, or regulation
implementing, or directly concerning, the merit system principles

12
 contained in section 2301 of this title. …

I.E. Grievant’s Charges

Grievant’s specific charges (AX 15) are as follows; his references to 5

USC § 2302(b)(11) have been changed to (12), as previously noted:

1) The NSD Director’s design and implementation of a specially prepared

position description that carefully incorporated leadership duties with
nuclear engineering duties in early 1998 constitute a violation of 5 USC
2302(b)(6).

2) The NSD Director’s decision to direct my transfer to another division so

as to preclude me from consideration for the GS-13 level Team Leader
position in early 1998 is a violation of 5 USC 2302 (b)(4), (b)(5), (b)(6),
and (b)(12); and 5 USC 2301 (b)(1) and (b)(2).

3) The NSD Director’s decision to omit me from consideration for the GS-
13 level Team Leader position in early 1998 is a violation of 5 USC
2302 (b)(4), (b)(5), (b)(6), and (b)(12); and 5 USC 2301 (b)(1) and (b)(2).

4) The NSD Director’s decision to limit the area of consideration for the
GS-13 level Team Leader position to interested candidates [within] only
the NSD in early 1998 is a violation of 5 USC 2302 (b)(4), (b)(5), (b)(6),
and (b)(12); and 5 USC 2301 (b)(1) and (b)(2).

5) The NSD Director’s announcement of the selection of an individual that

was then located in another Program Office, substantially outside the
announced area of consideration, for the GS-13 level Team Leader
position in early 1998 is a violation of 5 USC 2302 (b)(4), (b)(6), and
(b)(12); and 5 USC 2301 (b)(1) and (b)(2).

6) The NSD Director’s decision to overlook NSD employees that indeed did
express interest in serving in the GS-13 level Team Leader position in
early 1998 is a violation of 5 USC 2302 (b)(4), (b)(6), and (b)(12); and 5
USC 2301 (b)(1) and (b)(2).

7) The NSD Director’s solicitation to NSD employees in early 1998 was not
tendered in good faith, which is a violation of 5 USC 2302 (b)(4), (b)(6),

13
 and (b)(12); and 5 USC 2301 (b)(1) and (b)(2).

8) In the NSD Director’s selection of both GS-13 level Team Leader in

early 1998 and the selection for Vacancy Announcement number OR 00-
68, disparate treatment occurred to NSD employees, other highly
qualified applicants, and myself, which constitutes a violation of 5 USC
2302 (b)(4), (b)(6), and (b)(12); and 5 USC 2301 (b)(1) and (b)(2).

9) The NSD Director provided favoritism for one employee both for the
selection of the GS-13 level Team Leader in early 1998 as well as for the
selection on Vacancy Announcement number OR 00-68, which is a
violation of 5 USC 2302 (b)(6), and (b)(12); and 5 USC 2301 (b)(1) and
(b)(2).

10) The NSD Director pre-selected an individual for both for the selection of
the GS-13 level Team Leader in early 1998 as well as for the selection on
Vacancy Announcement number OR 00-68. This is a violation of 5 USC
2302 (b)(6), and (b)(12); and 5 USC 2301 (b)(1) and (b)(2).

11) The NSD Director provided an individual the opportunity in early 1998
to serve in a GS-13 level Team Leader position. This personnel action
allowed the individual to accrue duties and skills for an extended period
of time to ensure a dominant posture when the position (as was
anticipated) became available, thus constituting a planned management
action. See McLaughlin v. Callaway [382 F Supp 885 (SD Ala 1974)].
This is a violation of 5 USC 2302 (b)(4), (b)(6), and (b)(12); and 5 USC
2301 (b)(1) and (b)(2).

12) The NSD Director manipulated the selection process for the selection of
the GS-13 level Team Leader in early 1998 as well as for the selection on
Vacancy Announcement number OR 00-68. As manipulation relates to
the Merit System Principles, this is a violation of 5 USC 2301 (b)(1) and
(b)(2).

13) Advertising the position as temporary, when buried in the body of

Vacancy Announcement number OR 00-68 is language that permits
conversion to a permanent position with no further competition (which is
precisely what has occurred for this position), creates an implicit,
deterring effect on other potential applicants that may not have been
interested in a temporary position. This is contrary to 5 USC 2302 (b)(5).

14
14) By raising concerns in writing on numerous occasions, my non-selection
on Vacancy Announcement number OR 00-68 is a violation of 5 USC
2302 (b)(8)(A)(i).

15) The NSD Director’s misrepresentation of the need for my full-time

services in June, 1997, thereby causing the loss of my temporary
promotion, then transferring me to the Y-12 Site Office, which was
contrary to the stated need to perform Price-Anderson Enforcement,
constitutes retaliation. This is a violation of 5 USC 2302 (b)(5), (b)(6),
and (b)(12); and 5 USC 2301 (b)(1) and (b)(2).

I.F. The Agency’s Defenses

In addition to defending on the ground of arbitrability, the Agency insists

that Grievant’s complaints about the events of 1997-1999 are untimely and may

not be grieved at this late date. The Agency further contends that “Grievant has

failed to show that the selection of [JAF] for Lead Nuclear Engineer was

improper.” Agency Brief @ 4-7. Grievant has no grounds for complaint because

his job assignments, even the involuntary transfers, were within management’s

discretion, which included the right to limit selection to a particular pool of

applicants. Finally, the Agency asserts that the law does not permit a promotion

to GS-14 to be awarded Grievant, inasmuch as such an award would contravene

the rights reserved to Agency management under 5 USC §§ 7106(a) and (b).

Agency Brief @ 7-8.

II. DISCUSSION AND ANALYSIS

II.A. The Issues Presented

The parties did not agree upon a joint definition of the issues presented;

15
indeed, they did not even agree upon any joint exhibits, so that the collective

bargaining agreement itself was introduced as an Agency exhibit. In the absence

of the parties’ agreement, “the arbiter is empowered to define the issues of that

particular grievance.” Article 12, Section 4.A (AX 7 @ 15). The arbitrator

therefore discusses the issues raised by the evidence or by either party in its

opening or closing statement or in its brief.

II.B. The Testimony Of J. Dale Jackson

J. Dale Jackson, GS-15 and Grievant’s former supervisor, testified on the

latter’s behalf. Grievant came to work for him during a time of program changes

at the Paducah Gaseous Diffusion Plant DOE Site Office in Paducah, Kentucky,

where Grievant had been stationed between 1990 and 1993. In the 1994-1995

time frame, Mr. Jackson, predecessor to the Director, left for the Y-12 Site, to

replace the reactor restart manager, who was retiring.

Mr. Jackson found that safety analysis at Y-12 was “chaotic”. The

Successful Candidate then was in charge of the safety analysis reports, or

“SARs”, program, which Mr. Jackson described as “out of control”. There were

workload problems and communication problems with a major contractor,

Lockheed Martin Corporation. The Successful Candidate was not doing his job.

When the Y-12 site manager left, Mr. Jackson took over that position.

Mr. Jackson was acting site manager in January of 1998, when the Successful

16
Candidate left. After the Successful Candidate’s departure, the SARs program

was brought under control, and communication with Lockheed Martin

improved.

The Successful Candidate filed a complaint against Mr. Jackson, who

would not have selected the Successful Candidate for the GS-14 team leader

position, due to poor job performance. The Successful Candidate also filed a

complaint against Grievant.

Although Mr. Jackson never promoted Grievant, he believes that

Grievant is capable of functioning as a team leader at the GS-14 level. He

considers Grievant’s complaints to be reasonable. He described the Director’s

request that Grievant be allowed to work fulltime on Price-Anderson as a

“pretense”.

Mr. Jackson testified that DOE has a strong diversity agenda. In

recruiting, the Agency targets Black6 and Hispanic colleges. Certain positions

are targeted for diversity candidates. When the Secretary of Energy wanted to

fill a position at Paducah with a woman, one was found.

Managers are under very real pressure to select diversity candidates and

never are questioned when they select one. All lateral transfers must go through

6
“African-American” is used in the University of Michigan cases, supra.

17
the diversity manager, Rufus H. Smith,7 for approval. Any selection of a white

male must be explained, but selection of a diversity candidate need not be. It is

far easier to get a diversity selection approved than a non-diverse one.

At one time diversity was a factor in monetary awards, and managers

were evaluated on how they parceled money to diversity employees. Award lists

are reviewed for diversity. Mr. Jackson has been asked to reconsider his award

lists, based upon diversity considerations. In past years, he failed to be rewarded

for diversity. The pressure to promote diversity is very real. His experiences are

shared by other managers.

Managers are evaluated on how well they promote diversity. Their

salaries, bonuses, and awards depend upon their diversity performances. Thus,

managers have a financial incentive to select, promote, and reward diversity

candidates. He characterized this case as presenting a “diversity issue”.

The arbitrator found Mr. Jackson to be a credible and convincing witness

and accepts his testimony as fact. The candor with which he testified took

courage and conviction. Where testimony is in conflict, the arbitrator credits Mr.

Jackson’s version of events. The arbitrator agrees with the characterization of

his testimony in Grievant’s Brief @ 11:

The testimony of Dale Jackson, a management level employee of the

agency[,] confirmed that personnel evaluations of agency managers in the
7
There were intimations that the Successful Candidate lives next door to the diversity manager and his
wife, who is director of personnel, but the evidence was insufficient to support a finding.

18
 area of diversity promotion was used as both a carrot and a stick to force
support for the agency’s diversity agenda. These tactics may help explain
Mr. McBride’s actions in preselecting a Hispanic male for a job that was
specifically created to enhance the promotion opportunities for its
incumbent.

Mr. Jackson’s testimony about the Agency’s diversity agenda is

corroborated by several exhibits, including the Successful Candidate’s own

Application for Federal Employment – SF 171 (AX 6), in which the Successful

Candidate lists the following awards:

§ Quality Step Increase, October 29, 1995: “… for your outstanding

and enthusiastic leadership as Manager of the ORO Hispanic
Employment Program Advisory Council.”

§ Quality Step Increase, October 30, 1994: “In recognition of …

your dedicated leadership of the ORO Hispanic Employment
Program.”

§ Monetary Award for Special Act or Service, March 22, 1994: “In
recognition of your personal contributions to the Hispanic Heritage
Celebration … .”

The Ranking Factors listed in Vacancy Announcement - # OR 00-68

reflect the importance placed upon diversity:

1. Knowledge of concepts, principles, standards, and practices of

facility safety.

2. Skill in leadership and experience in coordinating groups of

individuals specifically in the area of nuclear safety.

3. Knowledge and support of equal opportunity goals and affirmative

action programs, policies, and responsibilities.

4. Skill in written and oral presentations.

19
 5. Ability to establish and maintain effective working relationships
with a variety of individuals and groups in a demanding
environment. AX 4; emphasis supplied.

Thus, diversity considerations account for a full 20% of a candidate’s ranking

and are weighted equally with knowledge of nuclear facility safety.

Form OR-11, Supervisory Appraisal Of Demonstrated Performance,

attached to the Vacancy Announcement, similarly reflects these Ranking

Factors/Basis of Rating, as does the Crediting Plan attached to Form OR – 5,

Merit Staffing Request (AX 3). The Crediting Plan elaborates on the diversity

factor as follows:

A Experience which has provided general familiarity with EEO goals

and objectives, or training in Federal AA and EEO policies, or
experience in maintaining working relationships which required
bias-free interpersonal skills for effective performance.

S Direct participation in EEO or affirmative action programs and

activities on or off the job which involved efforts to improve the
utilization of protected class members and/ or to assure their
equitable treatment.

“A” stands for a required ability, and “S” for a required skill.

By contrast, the Position Description (AX 2) used in 1998 for the

Successful Candidate’s predecessor, Terry Olberding, emphasizes technical

competence; e.g.:

Develops, recommends, and interprets ORO policies for the protection of

the safety and health of workers and the public in accordance with safety
management system concepts. AX 2 @ 2.

20
 Knowledge of the basic theories and principles of physical science,
engineering, safety analyses, risk assessments, safety management,
conduct of operations, and related technical fields sufficient to
understand, evaluate, and manage facility safety, process safety, and
conduct of operations programs assigned to the Facility Safety Team.
AX 2 @ 4.

Work results are considered technically authoritative and are normally

accepted without significant change. AX 2 @ 5.

The scope of work involves a wide range of engineering, physics, and

system performance understanding such as required to evaluate system
design to ensure that all potential hazards are systematically identified
and appropriate mitigating measures are taken. AX 2 @ 7.

The total value of operations or projects that the appraisal effort would
include is in the range of several hundred million to several billion
dollars. AX 2 @ 7.

This position is covered by the Technical Qualification Program (TQP).

The TQP was established as a result of the Defense Nuclear Facilities
Safety Board Recommendation 93-3 and requires the incumbent to be
competent in his/her technical discipline as demonstrated by education,
professional certification, examination or on-the-job performance. AX 2,
Addendum to Position Description and Performance Plan.

The fact that the requirements for team leader in the Nuclear Safety Division

seem to have been changed so dramatically gives credence to Grievant’s

allegation that the Vacancy Announcement and selection process were tailored

to the Successful Candidate.

Mr. Jackson’s testimony was corroborated by that of his former first

lieutenant, Randall M. DeVault, a finalist in the bidding for the temp-14 team

leader position at issue, who took over for Mr. Jackson when Jackson moved to

21
Y-12. Grievant worked in regulatory oversight with Mr. DeVault, who was told

that Grievant was being transferred back to Nuclear Safety to work on Price-

Anderson, despite DeVault’s requests that Grievant be allowed to remain,

because Grievant’s job in regulatory oversight had not been completed.

II.C. The Testimony Of John David Harris

John David Harris was one of the highly qualified candidates for the team

leader position in dispute. Mr. Harris holds a B.S. in mechanical engineering

from Fairleigh Dickinson University, an M.S. in nuclear engineering from the

Massachusetts Institute of Technology, and an M.S. in management from

Rennselaer Polytechnic Institute (AX 6). He did post-masters work in nuclear

engineering at MIT and Rennselaer (AX 6). At the time of his application, he

listed himself as author or coauthor of thirty technical publications (AX 6). He

has 31 years of experience as a nuclear engineer and is a registered professional

engineer.

Mr. Harris has known the Director as long as Mr. Harris has worked for

the Agency; he worked for the Director at the time of his application for team

leader. According to Mr. Harris, the Director does not have a reputation for

truthfulness and could not be trusted. Mr. Harris suspects that the Director was

pressured into selecting the Successful Candidate.

Mr. Harris attended meetings with the Director regarding the acting team

22
leader GS-13 position. The Successful Candidate did not attend these meetings.

The Director was evasive about the position. Mr. Harris believed that the GS-13

position would lead to permanent leadership at the GS-14 level. Mr. Harris was

led to believe that the position was open to employees of Nuclear Safety, only.

He applied, but the Successful Candidate nevertheless was selected from

outside, a point which the Agency concedes in its brief:

… [JAF] was selected for the position even though, as the Grievant
alleges, he was not a current NSD employee at the time of the selection.
Agency Brief @ 6.

The Agency attempts to finesse the issue by suggesting:

Even assuming that Mr. McBride informed other NSD employees that
the selection for the GS-13 Team Leader position would be made from
within the NSD, McBride’s selection of Mr. [JAF] does not constitute
favoritism because lateral hires do not have to be selected from within the
existing division. Agency Brief @ 6.

The ready response is that deceit is a Prohibited Personnel Practice, 5 USC §

2302(b)(4), and discrimination is against Merit System Principles, 5 USC §

2301(b)(2), and also is prohibited, 5 USC § 2302(b)(1).

Mr. Harris testified that, at one meeting, the Director stated that no

selection was imminent. Perhaps five minutes after the meeting, he passed by

the Director’s office and overheard the Director remark on the telephone that the

Successful Candidate had the job. Mr. Harris testified that, from this moment

on, he knew “the fix was in.” While the Director did testify before Mr. Harris

23
took the witness stand, the Agency did not recall the Director to rebut Mr.

Harris’ testimony about the telephone conversation.

Mr. Harris characterized the Successful Candidate’s selection as an EEO

choice. In his opinion, the Successful Candidate has little technical

understanding and is not technically competent. The Successful Candidate does

not understand the mathematics or the mathematical models used in nuclear

reactor safety analysis. In 4 years of interaction with the Successful Candidate,

he found the Successful Candidate to be wrong 9 out of 10 times. The

Successful Candidate would make reckless technical statements, when he really

did not know what he was talking about, and would override more

knowledgeable professional engineers.

Mr. Harris filed a grievance against Robert William Poe, assistant

manager for Environment, Safety, & Quality, and the Successful Candidate,

because the Successful Candidate attempted to coerce him into signing off on a

report which he did not have sufficient information to approve. The report later

was “kicked back”. The grievance was settled just the day before Mr. Harris

testified, by a transfer away from the Successful Candidate.

Mr. Harris claims that he did not file a grievance over the Successful

Candidate’s selection as team leader because he feared retaliation from Mr. Poe.

He has had encounters with Mr. Poe in which Mr. Poe threatened his job in

24
front of witnesses. He claimed to know of at least two instances of actual

retaliation. There have been other threats by Mr. Poe.

Mr. Harris’ experiences with Mr. Poe’s temper are shared by Mr. Cooper,

the Union representative, who testified that Mr. Poe became angry at Grievant’s

questions during meetings. Grievant himself testified that Mr. Poe became quite

upset with him for planning to attend Price-Anderson meetings in the Director’s

absence in April of 1997, not long before his exile to Y-12. Mr. Poe’s demeanor

at the hearing suggested that he was not pleased with the grievance or

arbitration.

Mr. Harris made no attempt to hide the depth of his feelings about the

Successful Candidate and Mr. Poe. While Mr. Harris may have had an ax to

grind, the victim of a hatchet job has a right to wield his own ax. The arbitrator

does not believe that Mr. Harris, with his extensive technical education and long

history of publications, would risk his professional reputation by making

unfounded accusations. The arbitrator credits his testimony, which corroborates

that of J. Dale Jackson, regarding the Successful Candidate’s poor job

performance.

II.D. The Testimony Of Screening Panel Members

Two members from the Director’s screening panel testified, Brenda

Leigh Hawks, appointed by the Director to head the panel (although she never

25
before had served on such a panel), and Daniel K. Hoag. Their testimony was

conflicting in important respects. The conflicts cast doubt on the validity of the

panel’s assessments.

Ms. Hawks testified that a candidate’s professional engineering license

was not a factor to be considered; she did not remember which ones had PE

certifications. Neither was an advanced degree a factor. The panel did look at

past performance. The panel did not call references or check the accuracy of

information submitted in the applications. Decisions were made on the basis of

the applications themselves. The applicants were not interviewed because panel

members agreed on the top three.

Leadership qualities, management experience, and customer relations

skills were rated more highly than technical competence. Although she judged

Grievant to be extremely well qualified technically, she rated the Successful

Candidate higher in other categories. She did not feel that the Successful

Candidate’s experience as acting team leader GS-13 was particularly important.

She conceded that past performance is a good indicator of future success. She

rated Grievant as fourth out of the 6 candidates.

Mr. Hoag testified that the applicants were not interviewed because the

panel was instructed to look at just the applications. He, too, claimed to have

given little weight to the Successful Candidate’s 13-level acting team leader

26
experience. However, on cross-examination, he conceded that he did note that

experience. He went on to admit that the Successful Candidate’s experience

weighed heavily, although he didn’t know how well the Successful Candidate

actually performed on the job.

Mr. Hoag stated that he considered all information in the applications. He

was not told to disregard unaccredited universities, education, or PE licenses.

Selecting the top 3 was not difficult, because there was a significant gap

between them and the rest of the pack. He did not feel that he had a conflict of

interest in ruling on the first-step grievance (AX 12) after having served on the

screening panel.

In the Sloan report, Mr. Sloan wrote:

In an interview with one of the panel members, it was indicated that

[JAF]’s experience was broader than Max Smith’s in facility safety and
supervision which included [JAF]’s experience working at the Y-12 Site
Office and in the GS-13 Team Leader position in the Facility Safety
Team, Nuclear Safety Division. UX 1 @ 4.

Mr. Sloan did not identify the panel member of whom he wrote, but the

interview does indicate that at least one panel member took the Successful

Candidate’s acting team leader 13 experience into account seriously.

From the foregoing, it is difficult to discern just what criteria panel

members used to rate the candidates. There do not seem to have been any

guidelines. It does appear, however, from Mr. Hoag’s testimony, that some

27
effort was made to discourage panel members from looking beyond the

applications themselves and verifying the information contained in them. As a

result, it is difficult for the arbitrator to credit the panel’s work, although he does

wonder why all three members rated Grievant no better than fourth.

II.E. The Successful Candidate’s Application

The Vacancy Announcement (AX 4) specifies a closing date of

01/03/2000. The Successful Candidate’s application is time-stamped, “01-04-

00P01:46 RCVD”. Thus, his application was not filed by the announced

deadline. No mention of the untimeliness of his application was made by

Human Resources, the screening panel, the Director, Mr. Sloan, or the officials

who responded in the grievance steps. Again it appears that the rules were

waived for the Successful Candidate.

The Agency called Adolphus Brown, a Human Resources specialist with

DOE since 1993. On cross-examination, Mr. Brown was shown UX 4,

Comparison Of The Facility Safety Team Leader Position Descriptions,

comparing the duties at the GS-14 level with those at the GS-13 level. The

comparison was prepared by the Director. In the Successful Candidate’s

application, he stated:

In March 1998, I began Acting Team leader at the GS-13 level. During
this period my duties were precisely as described above for the period of
my temporary assignment [as GS-14]. AX 6, SF 171 @ 6; emphasis
supplied.

28
Mr. Brown conceded that the Successful Candidate’s statement in his

application may not have been true.

In its brief, the Agency effectively confirms the falsity of the Successful

Candidate’s representations that his duties as a 13 were the same as at the 14

level:

… Mr. McBride testified that while Ms. Olberding participated in this

program, he assumed her duties and, to assist him with those duties,
created a GS-13 Team Leader position. This position, however, did not
have the same duties and responsibilities as Ms. Olberding’s position.
See Union Exhibit 4. On the contrary, as Mr. McBride testified, this GS-
13 Team Leader position assumed all the duties of the other GS-13
positions in the Facility Safety Team with the exception of a few
administrative duties. … Agency Brief @ 4.

There is other information in the Successful Candidate’s application

which appears to have been untrue. Most glaringly, on page 8, he claims that he

served as a general engineer GS-14 during the period 12/91-5/95. Based upon

the evidence presented at the hearing, he did not have that much experience at

that high a level, but panel members never questioned it. There appears to have

been a concerted effort throughout the selection process to curb investigation

into the facts.

At the hearing, the Successful Candidate’s claim to over 3 years’

experience at the GS-14 level was brought to the attention of Philip Scott

Barker, in personnel management at Human Resources, but he had no

explanation for it. Mr. Barker signed AXs 3 and 5. He testified that an

29
applicant’s score is computed from the application. He conceded that erroneous

information in an application could affect the score, but suggested that the

precise effect would be difficult to assess. He admitted that he doesn’t know

whether an application is truthful and that there are no safeguards against

misrepresentations.

In its brief, the Agency attempts to dismiss misinformation in the

applications:

Even assuming, as opposing counsel alleged, that other applicants may

have provided misleading information on their application, that
assumption is irrelevant because, as Mr. Barker testified, the Grievant
was nonetheless ranked “Highly Qualified” and his application was
referred to the selecting official for consideration. Agency Brief @ 3.

The fallacy with this argument is that misinformation skewed the ratings which

were utilized in the selection process. Had correct information been used, the

Successful Candidate’s score undoubtedly would have been lower.

II.F. The Agency’s Non-Responses

When a serious charge is made against a party, that party is expected to

rebut it promptly and vigorously, and a failure to do so may be viewed

negatively. Elkouri & Elkouri, How Arbitration Works (ABA/BNA 5th ed 1997)

@ 427-429, 1999 Supp @ 56-57; Hill & Sinicropi, Evidence in Arbitration

(BNA 2nd ed 1987) @ 102. This case involves some very serious charges.

Despite the fact that Grievant elicited strong testimony attacking the

30
Successful Candidate’s technical competence, the Agency made no effort to

rebut it. Similarly, when the suggestion was made that the Successful Candidate

had falsified his application, the Agency presented no rebuttal. Instead, the

Agency rested on its defense that the dispute is not arbitrable.

The arbitrator views quite negatively the Agency’s failure to come

forward with countervailing evidence on these issues. That failure gives

credence to Grievant’s charge that the Successful Candidate’s selection was

little more than a diversity appointment.

II.G. The Agency’s Explanations

The primary explanations for the events at issue were provided by the

Director himself, an experienced and well educated man (Ph. D. in

bionucleonics) who has worked on high-profile projects, such as clean-up of the

nuclear accident at Three Mile Island. Despite his obvious technical

accomplishments, his testimony was a mass of contradictions, unhelpful in

ascertaining what really transpired.

The Director placed responsibility for termination of Grievant’s

temporary GS-14 position and his transfer to Y-12 with his boss, Bob Poe. He

also sought to implicate Dale Jackson in the transfer. The Director confessed

that he did not know what course Grievant’s career might have taken had

Grievant remained at the temp-14 job.

31
 The Director admitted that he told employees that the GS-13 acting team

leader would be selected from the Nuclear Safety Division, but he considered

the Successful Candidate as part of the Division because the Successful

Candidate had expressed a desire to return. He claims that he was unaware of

Grievant’s interest in the position and even expressed surprise when he learned

of it. However, on cross-examination, he stated that Grievant was not

considered because Grievant was going to Y-12.

The Director claimed that he had an agreement with Dale Jackson that

Grievant would work primarily on Price-Anderson during Grievant’s stint as

GS-14. While insisting that he needed someone to work fulltime on Price-

Anderson, the Director provided no satisfactory explanation as to why that task

was not assigned to Grievant, who had been working on the project, when

Grievant returned to Nuclear Safety.

The Director sought to disparage Grievant’s work on Price-Anderson but

was forced to admit that he never expressed any criticism to Grievant himself, a

fact of which the Sloan report twice makes note (UX 1 @ 4 & 6). The Director

questioned the accuracy of that report, stating that he was not afforded an

opportunity to review it prior to its release.

The Director also tried to explain events in terms of the career

development of Terry B. Olberding, whom the Successful Candidate replaced.

32
While there may have been an outside possibility that Ms. Olberding would

return to her position as team leader in Nuclear Safety, the probability was

slight, as she was selected to participate in the Executive Potential Program for

rising stars and had and has her own career goals; she is now a GS-15. The

arbitrator views her interjection into events as a red herring, except to the extent

that the Successful Candidate filled her vacated position.

The Director denied placing the Successful Candidate in the acting team

leader GS-13 position in order to groom the Successful Candidate for a

permanent position at the 14 level. The Director testified that his division was

short of engineers at the 13 level and had no opening for a permanent 14. He

claimed that he wanted a wanted a long-term temporary 14 with “great technical

competence”. He admitted that he talked with the Successful Candidate’s

supervisor at Y-12 but claimed that no mention was made of work problems. He

did not talk with the supervisors of other applicants.

Another red herring was the Agency’s claim that Grievant was exiled to

Y-12 because he was “unhappy” in Nuclear Safety. There hardly can be any

debate that Grievant was unhappy with his treatment by that Division, whence

his grievance and this arbitration. It is quite a different matter to suggest that he

was so unhappy that he freely requested a transfer out of the Division, a

suggestion which the arbitrator rejects.

33
 Mr. Poe testified that Grievant returned to Nuclear Safety to work on

Price-Anderson. He seemed unaware that Grievant was there but a day before

being exiled to Y-12. His understanding was that Grievant had requested a

transfer, which he approved. He did not remember becoming upset with

Grievant not long before the exile, over Grievant’s insistence on attending an

important Price-Anderson meeting.

In Grievant’s Brief @ 4, his counsel argues:

No explanation has ever been given by any person, not by Martin

McBride or by Mr. McBride’s supervisor[,] Robert Poe, explaining why
Mr. Smith was removed from the regulatory oversight job where his
supervisor wanted to keep him, to the Y-12 site office where he was
without substantial work for several weeks. In fact the testimony of these
witnesses, both called by the agency[,] contradicted each other[,] each
claiming the other was responsible for the transfer.

The arbitrator agrees.

In summary, the arbitrator found management’s explanations of Agency

actions to be variously vague, evasive, illogical, inconsistent, contradictory, and

ultimately unconvincing. Mr. Sloan expressed some of his own obvious

skepticism about management’s explanations with great understatement:

While the purpose of the termination of the detail to AMEF was stated to
be the need for Max Smith to work full time on Price Anderson, this does
not appear to be the ultimate plan. UX 1 @ 5; emphasis supplied.

By contrast, Grievant and his witnesses painted a largely consistent picture,

which seemed to explain events. In closing argument, Grievant’s counsel asked,

34
“Whom do you believe?” The arbitrator’s answer is Grievant and his witnesses.

II. H. The Arbitration Procedure

5 USC § 7121(b)(1)(A) requires that the arbitration procedure in a

collective bargaining agreement be “fair”. It is not clear that the procedure

applied to Grievant would pass a basic fairness test. The same individual drafted

all of the Agency’s responses to Grievant’s complaints and, at each step, the

signing official had a financial incentive to “go along to get along”, as

Grievant’s counsel described the motivation. Moreover, Mr. Hoag, in order to

uphold the grievance at the first step, would have had to second-guess the

recommendations of the very screening panel on which he served.

Melanie Kent, GS-14 and branch manager from Human Resources,

testified on behalf of the Agency. The collective bargaining agreement (AX 7)

was negotiated by members of her office. She drafted each of the Agency’s

responses (AXs 12, 14 and 16). She also recommended Mr. Sloan for the role of

fact-finder. She described Grievant as a frequent complainer and echoed the

Agency’s refrain that this dispute is not arbitrable.

Ms. Kent viewed with apparent disdain Grievant’s attempts to gain a

promotion to GS-14 by conditioning his participation in the Personnel Security

Assurance Program (“PSAP”) on his elevation to that grade. At the Y-12 Site,

Grievant had access to weapons-grade nuclear material. While the PSAP

35
program originally may have been voluntary, at least after the Wen Ho Lee

incident at Los Alamos,8 it became mandatory.

Two of the three weapons quality assurance engineers at the GS-13 level

declined participation in PSAP. When Grievant accepted conditionally, the

Agency refused to accommodate him and instead insisted that he be escorted by

another employee whenever accessing nuclear material. Grievant’s jockeying

for position earned him 3 days of forced leave, which Ms. Kent insisted was not

disciplinary in nature.

The fact that the same high-level manager drafted all of the Agency’s

responses suggests that Grievant was not given the benefit of independent

judgment at succeeding steps of the grievance process, especially not in the first

step, when panel member Daniel Hoag was in charge of the Agency’s response.

Cf. the ERISA review requirements in 29 CFR § 2560.503-1(h)(3)(ii).9 Instead,

it appears that the reviewing managers were constrained to toe the Agency line,

a conclusion made more compelling by the fact that everyone involved in the

review had some indirect financial incentive to uphold diversity.

II.I. The UM Cases And The Agency’s Diversity Agenda

At issue in UM1 was a “selection index” utilized for undergraduate

8
See, for example, www.cnn.com/2000/US/09/05/scientist.secrets.ap/.
9
Requiring a group health plan to provide for a review procedure that does not afford deference to the
initial adverse benefit determination and that is conducted by an appropriate named fiduciary of the plan
who is neither the individual who made the adverse benefit determination that is the subject of the appeal,
nor the subordinate of such individual.

36
admissions, on which an applicant could score a maximum of 150 points. An

applicant was entitled to 20 points based upon his or her membership in an

underrepresented racial or ethnic minority group. In striking down the award of

extra points to diversity applicants, the Supreme Court held:

We conclude, therefore, that because the University's use of race in its

current freshman admissions policy is not narrowly tailored to achieve
respondents’ asserted compelling interest in diversity, the admissions
policy violates the Equal Protection Clause of the Fourteenth
Amendment. We further find that the admissions policy also violates
Title VI and 42 U. S. C. § 1981. 156 L Ed 2d @ 284-285; footnotes
omitted.

By contrast, in UM2, the Supreme Court found:

… that the Law School's admissions program bears the hallmarks of a

narrowly tailored plan. As Justice Powell made clear in Bakke, truly
individualized consideration demands that race be used in a flexible,
nonmechanical way. It follows from this mandate that universities cannot
establish quotas for members of certain racial groups or put members of
those groups on separate admissions tracks. See id., at 315-316. Nor can
universities insulate applicants who belong to certain racial or ethnic
groups from the competition for admission. Ibid. Universities can,
however, consider race or ethnicity more flexibly as a “plus” factor in the
context of individualized consideration of each and every applicant. Ibid.
156 L Ed 2d @ 336.

In summary, the Equal Protection Clause does not prohibit the Law
School's narrowly tailored use of race in admissions decisions to further a
compelling interest in obtaining the educational benefits that flow from a
diverse student body. Consequently, petitioner's statutory claims based on
Title VI and 42 U. S. C. §1981 also fail. See Bakke, supra, at 287
(opinion of Powell, J.) (“Title VI ... proscribe[s] only those racial
classifications that would violate the Equal Protection Clause or the Fifth
Amendment”); General Building Contractors Assn., Inc. v. Pennsylvania,
458 U. S. 375, 389-391 (1982) (the prohibition against discrimination in
§1981 is co-extensive with the Equal Protection Clause). The judgment

37
 of the Court of Appeals for the Sixth Circuit, accordingly, is affirmed.
156 L Ed 2d @ 342.

In the instant case, the Agency appears to use diversity more like the law

school did in UM2 than the way the undergraduate school did in UM1. The truly

distinguishing fact in this case is that here, everyone acting on behalf of the

Agency has a financial incentive to select and uphold the selection of diversity

candidates. There is no mention of any such an incentive in either of the

University of Michigan cases. To the arbitrator, providing managers with a

financial incentive to promote diversity by rewarding them for that promotion

with grade increases, raises, and monetary awards, and denying same if they fail

to go along, is more invidious than granting bonus points directly to the

diversity candidates themselves.

At least in UM1, the aggrieved students literally knew the score, because

the adverse effects of the selection index were readily identifiable and

quantifiable. Here, while the pressure to promote diversity is ever present, its

effects are far more difficult to pinpoint, especially when no one involved in the

process will admit to succumbing to that pressure. Instead, decision-makers

dissemble and attempt to rationalize their behavior. As a result, Grievant can be

expected to prove only that the pressure to promote diversity exists and is

sufficiently strong to influence management behavior, and that the Agency’s

explanations for its actions do not hold together. He has done that.

38
 It remains to be seen just how the principles enunciated in the UM cases

will be applied in the employment context, including the requirement in UM2

that a diversity policy be of limited duration. It does, however, seem clear that

they will be applied, as the Supreme Court noted in UM2:

These benefits are not theoretical but real, as major American businesses
have made clear that the skills needed in today’s increasingly global
marketplace can only be developed through exposure to widely diverse
people, cultures, ideas, and viewpoints. Brief for 3M et al. as Amici
Curiae 5; Brief for General Motors Corp. as Amicus Curiae 3-4. What is
more, high-ranking retired officers and civilian leaders of the United
States military assert that, “[b]ased on [their] decades of experience,” a
“highly qualified, racially diverse officer corps ... is essential to the
military's ability to fulfill its principle mission to provide national
security.” Brief for Julius W. Becton, Jr. et al. as Amici Curiae 27. 156 L
Ed 2d @ 334.

It further seems clear that the diversity principles will be applied in

federal employment, inasmuch as footnote 43 from Bakke states:

“Equal protection analysis in the Fifth Amendment area is the same as

that under the Fourteenth Amendment.” Buckley v. Valeo, 424 U.S. 1,
93 (1976) (per curiam), citing Weinberger v. Wiesenfeld, 420 U.S.
636, 638 n. 2 (1975). 438 US @ 306.

Whatever the implications of the UM cases for federal employment, two

points about the present case are worth noting. First, “agenda” is used to

describe the promotion of diversity within the Agency, because there was no

evidence of any formal Agency policy, written or oral. The agenda can be

characterized as a practice under which pressure is exerted upon managers to

promote diversity. Second, whatever its form, there is nothing in the collective

39
bargaining agreement to suggest that such an agenda takes precedence over the

agreement itself. DOD Depts of Army and Air Force Ala Nat’l Guard and Ala

Ass’n of Civilian Techs, 55 FLRA 37 (1998) [“DOD”] (affirmative action plan

may be considered in selecting candidates but does not supersede CBA).

III. APPLICABLE LAW

III.A. Grievant’s Brief

The Agency cites not a single case in its brief. Grievant, on the other

hand, cites a long line of Supreme Court precedents on various forms of

discrimination: Reeves v Sanderson Plumbing Products, Inc, 530 US 133

(2000) [age]; St Mary’s Honor Center v Hicks, 509 US 502 (1993) [race];

US Postal Service Bd of Govs v Aikens, 460 US 711 (1983) [race]; Texas

Dept of Community Affairs v Burdine, 450 US 248 (1981) [gender]; Furnco

Construction Corp v Waters, 438 US 567 (1978) [race]; McDonald v Santa

Fe Trail Transp Co, 427 US 273 (1976) [reverse discrimination];

McDonnell Douglas Corp v Green, 411 US 792 (1973) [race].

The principles laid down in these cases are applicable to arbitrations.

Fed Deposit Ins Corp and NTEU, 45 FLRA 437 (1992). Indeed, this case

was tried—without objection—as though it were one of reverse

discrimination (McDonald, supra and 5 USC § 2302(b)(1)), so the arbitrator

briefly reviews those principles.

40
 In Texas Affairs, the Supreme Court explained the burdens and order

of presentation of proof as follows:

In McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), we set

forth the basic allocation of burdens and order of presentation of proof
in a Title VII case alleging discriminatory treatment. First, the
plaintiff has the burden of proving by the preponderance of the
evidence a prima facie case of discrimination. Second, if the plaintiff
succeeds in proving the prima facie case, the burden shifts to the
defendant “to articulate some legitimate, nondiscriminatory reason for
the employee's rejection.” Id., at 802. Third, should the defendant
carry this burden, the plaintiff must then have an opportunity to prove
by a preponderance of the evidence that the legitimate reasons offered
by the defendant were not its true reasons, but were a pretext for
discrimination. Id., at 804.

The nature of the burden that shifts to the defendant should be

understood in light of the plaintiff's ultimate and intermediate burdens.
The ultimate burden of persuading the trier of fact that the defendant
intentionally discriminated against the plaintiff remains at all times
with the plaintiff. See Board of Trustees of Keene State College v.
Sweeney, 439 U.S. 24, 25, n. 2 (1978); id., at 29 (STEVENS, J.,
dissenting). See generally 9 J. Wigmore, Evidence 2489 (3d ed. 1940)
(the burden of persuasion “never shifts”). The McDonnell Douglas
division of intermediate evidentiary burdens serves to bring the
litigants and the court expeditiously and fairly to this ultimate
question. 450 US @ 252-253; footnote omitted.

In Furnco Construction, the Supreme Court observed that the

McDonnell Douglas methodology is not inflexible:

The central focus of the inquiry in a case such as this is always

whether the employer is treating “some people less favorably than
others because of their race, color, religion, sex, or national origin.”
Teamsters v. United States, supra, at 335 n. 15. The method suggested
in McDonnell Douglas for pursuing this inquiry, however, was never
intended to be rigid, mechanized, or ritualistic. Rather, it is merely a
sensible, orderly way to evaluate the evidence in light of common

41
 experience as it bears on the critical question of discrimination. A
prima facie case under McDonnell Douglas raises an inference of
discrimination only because we presume these acts, if otherwise
unexplained, are more likely than not based on the consideration of
impermissible factors. See Teamsters v. United States, supra, at 358 n.
44. And we are willing to presume this largely because we know from
our experience that more often than not people do not act in a totally
arbitrary manner, without any underlying reasons, especially in a
business setting. Thus, when all legitimate reasons for rejecting an
applicant have been eliminated as possible reasons for the employer's
actions, it is more likely than not the employer, who we generally
assume acts only with some reason, based his decision on an
impermissible consideration such as race. 438 US @ 577.

In Reeves, the High Court delineated the bottom line:

The ultimate question in every employment discrimination case

involving a claim of disparate treatment is whether the plaintiff was
the victim of intentional discrimination. 530 US @ 153.

In the instant case, after a full hearing and briefing, the arbitrator is

faced with deciding the ultimate question. Grievant certainly made out a

prima facie case of reverse discrimination. McDonald, supra. For purposes

of analysis, the arbitrator credits the Agency with having “articulate[d] some

legitimate, nondiscriminatory reason for [Grievant’s] rejection.” Texas

Affairs, 450 US @ 253. Based upon all the evidence, however, the arbitrator

concludes that Grievant has “prove[d] by a preponderance of the evidence

that the legitimate reasons offered by the [Agency] were not its true reasons,

but were a pretext for discrimination.” Id.

Grievant has proved, and the arbitrator finds, that Grievant is white

42
and that the Successful Candidate is Hispanic. Grievant was highly qualified

for the position of GS-14 lead nuclear engineer. Had the Agency enforced its

own announced application deadline, the Successful Candidate, whose

application was untimely, would not even have been considered for the

position.

The Successful Candidate’s application contained material

misrepresentations, so that the ranking of candidates by Human Resources

was unreliable. To the extent that Human Resources or the screening panel

credited the Successful Candidate with experience at Y-12 or as GS-13 or 14

acting team leader, the former experience was of poor quality and the latter

was obtained only as a result of the Agency’s favoritism toward the

Successful Candidate and its arbitrary and capricious treatment of Grievant.

The Agency’s reasons proffered for its actions were factitious and

fictitious. At each stage of the selection process, the Agency made a

concerted effort to stifle inquiry into the underlying facts. Grievant and his

witnesses have exposed those facts, and their testimony is credible. The

selection process was fatally flawed. Grievant has proved a case of unlawful

discrimination.

The arbitrator largely agrees with the summation of Grievant’s

counsel:

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 Evidence that Mr. [JAF]’s application for the GS-14 Team Leader job
is chocked full of readily identifiable and deliberate
misrepresentations, but ignored by the agency’s rating and ranking
process, or that Mr. [JAF]’s application was even accepted after the
vacancy announcement deadline had passed, is further proof that the
agency is willing to ignore its own internal rules to accommodate the
selection of diversity candidates for promotion. Mr. Smith’s
unexplained involuntary transfer from a job that he was successfully
performing and in which he was needed, to another division at a time
when his own division director untruthfully claimed to need him for
Price-Anderson[,] is more evidence of the agency’s pervasive mindset
that minorities are to be nurtured and promoted while white men are
to be discouraged from seeking promotion and whose advancement
opportunities are to be limited or eliminated.

Explanations by the agency for its actions in this matter are either
non-existent or so incredible as to justify finding its actions and
explanations a pretext for discriminatory behavior. Grievant’s Brief
@ 13.

Counsel’s reference to “the agency’s pervasive mindset” is understood to be

limited to the case at hand, and not to refer to a sweeping indictment of the

DOE at large.

III.B. The Agency’s Brief

In objecting to consideration of earlier events (1997-1999), the Agency

fails to quote Grievant fully (Agency Brief @ 2). What he actually wrote was:

These negative actions are further well documented, and not the subject
of this grievance, but do form the foundation for subsequent retaliatory
actions against me. AX 15; emphasis supplied.

The earlier events help put into context the ultimate ones at issue.

Grievant goes on to explain:

44
 Specifically, this grievance deals with the favoritism shown toward a
single employee, which excluded other employees from a short-term
opportunity, and which was identified well in advance to lead to a
promotion in the long-term. The actions of the NSD Director considered
cumulatively can only [lead to the] conclu[sion] that he took a series of
distinct personnel actions that led to a predetermined outcome of 1)
providing an opportunity to a single individual to obtain the needed job
experience, knowledge, skills and abilities, 2) under a specially prepared
position description, that 3) ultimately led to a promotion for that
individual. AX 15; emphasis supplied.

The arbitrator adopts Grievant’s perspective, that events must be considered

cumulatively and viewed as a series of distinct personnel actions that were part

of an overall plan to accomplish an impermissible result. See Grievant’s 15

charges from AX 15, set forth above, especially 15).

Mr. Sloan, the Agency’s hand-picked fact-finder, discussed all of these

earlier events in detail and referred to the termination of Grievant’s temp-14

assignment as being part of an “ultimate plan” (UX 1 @ 5). The arbitrator finds

that the Agency acted pursuant to a plan, pattern, practice, or other continuing

course of discriminatory conduct, which culminated in 2000 with the Successful

Candidate’s promotion to GS-14 team leader. The collective bargaining

agreement expressly provides:

A grievance concerning a continuing practice or condition may be

initiated at any time. Article 11, Section 3.B (AX 7 @ 13).

As a result, the grievance was timely, and consideration of earlier events is

appropriate.

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 The Agency complains that Grievant is self-centered in the relief he

seeks:

[T]he Grievant only appears concerned with the disparate treatment

shown toward him because his remedy, a permanent GS-14 position, is
focused solely upon remedying his and only his situation. The Grievant is
only concerned that he was not selected for a promotion. … Agency
Brief @ 2.

To the arbitrator, this is not a legitimate defense. Grievant’s case is the only one

before the arbitrator. The rights and remedies of others are not now at issue.

Neither the collective bargaining agreement nor Title 5 requires altruism

on the part of an aggrieved employee. It would be extraordinary if Grievant,

who is paying thousands of dollars for legal representation, were not concerned

for his own welfare. Indeed, he does not have standing to complain of wrongs to

his coworkers.

The Union could have brought a class action grievance under Article 11,

Section 2.B (AX 7 @ 12), but for whatever reasons, it chose not to do so. Other

affected employees have gone their own way. Mr. Brown testified that Mr.

DeVault may be as high as a GS-15 today. Ms. Robbins has moved up to level

14. Mr. Harris did not grieve out of fear of retaliation. Only Grievant matters

here.

Finally, the Agency objects to Grievant’s proposed remedy of promotion

to grade 14, on the ground that such an remedy would violate management’s

46
rights under 5 USC §§ 7106(a) and (b), a valid objection addressed more fully

below. As a general proposition, Title 5 must be read as a whole, including its

proscriptions against the types of behavior in which the Agency has engaged.

An award is being granted not to interfere with the Agency’s lawful conduct of

its own affairs, but to remedy its misconduct.

III.C. The Remedy

While finding liability on the part of the Agency is not difficult,

fashioning an appropriate remedy is, because, as the Agency correctly contends,

an outright award of a permanent GS-14 position to Grievant very well might

interfere with management’s reserved rights. SBA and AFGE Local 3906, 37

FLRA 137 (1990) [“SBA”]; Health and Human Services Family Support Adm

and NTEU Local 250, 42 FLRA 347 (1991) [“HHS”]; Panama Canal Comm

and Marine Engineers Beneficial Ass’n, Dist No. 1, 56 FLRA 451 (2000)

[“Marine Engineers”].

An award of either a promotion or back pay requires a finding that, “but

for” an agency’s misconduct, the aggrieved employee would have been

promoted or received the pay lost. SBA, HHS, Marine Engineers, supra.

Grievant seems to understand this requirement, as he supplied the arbitrator with

copies of the FLRA cases just cited and candidly concedes:

Depriving the grievant of the opportunity to serve in the lower graded

GS-13 Team Leader position that all the witnesses agreed provided the

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 requisite experience to be “best qualified” for the upcoming GS-14
vacancy, placed the grievant in the impossible position of proving that
but for the improper selection, he would have been selected instead.
Grievant’s Brief @ 14.

While the arbitrator can say with confidence that, on the record, Grievant

appears more qualified than the Successful Candidate, the record does not

permit a finding that Grievant was the best qualified of the 6 highly qualified

candidates whose names were submitted to the Director and whose

qualifications were vetted by the screening panel. As a result, the award of a

permanent GS-14 position with back pay cannot be sustained.

What the record will sustain, however, is an award of back pay and

attorney’s fees for the Agency’s premature termination of Grievant’s temporary

promotion to GS-14, under the pretext that he was needed in Nuclear Safety to

work fulltime on Price-Anderson. That was about as arbitrary and capricious as

personnel actions get. Over six (6) years after the fact, the Agency still has not

produced a plausible explanation for the move.

The arbitrator finds that it was part of the ongoing plan to discriminate in

favor of the Successful Candidate and against Grievant. But for the Agency’s

unjustified and unwarranted personnel action, Grievant would have remained a

temp 14 and continued to earn income and gain experience at that level, at least

through December 31, 1999. He then would have been in a stronger position

either to have applied for the GS-13 acting team leader position or to have

48
competed at the GS-14 level with better experience.

The prerequisites for an award of attorney’s fees are set forth at length in

FDIC and NTEU Ch 242, 45 FLRA 437 (1992). Under the standards discussed

there, Grievant is entitled to an award of attorney’s fees under both prongs of 5

USC § 7701(g). The award is limited, of course, to those attorney’s fees

incurred by Grievant in establishing that part of his case dealing with his temp-

14 detail and its premature termination.

Although the record does not justify Grievant’s promotion to a permanent

14, he has proved Agency violations of the collective bargaining agreement and

Merit System Principles and commission of Prohibited Personnel Practices. As

a result, he must not be left without a remedy. DOD, supra; cf. Fed R Civ P

54(c) (“… every final judgment shall grant the relief to which the party in

whose favor it is rendered is entitled, even if the party has not demanded such

relief in the party’s pleadings.”).

There are two accepted remedies in a case such as this, ordering a rerun

of the selection process or granting the aggrieved employee priority

consideration for a future position. Veterans Affairs Regional Office and AFGE

Local 2571, 41 FLRA 681 (1991); HHS, supra. Grievant does not mention

rerunning the selection process but rejects mere priority consideration:

Granting the grievant priority consideration for the next appropriate GS-
14 position does not appropriately deter the agency in continuing its

49
 impermissibly unfair or discriminatory practices. Neither does it make up
for the time and money lost. Grievant’s Brief @ 14.

If the selection process is not rerun, then the Agency effectively will have

accomplished what it set out to do, namely, to pre-select a diversity candidate,

with virtual impunity. If the selection process is rerun without safeguards, then

the rerun may prove as tainted as the original process. For these reasons, the

arbitrator directs that the selection process for the GS-14 team leader position be

rerun with certain safeguards explained below.

In Panama Canal Comm and Maritime Metal Trades Council, 52 FLRA

404 (1996) (“Maritime Trades”), the FLRA upheld the arbitrator’s order “that

the evaluation and selection process be rerun as of the date of the original

vacancy announcement, using the original position description without modified

qualifications” that had given rise to the grievance. The arbitrator also ordered

“that, if the selectee applies, then he should be evaluated without credit for time

spent in the position.” The Authority observed that the award did not prevent the

agency from utilizing modified qualifications if no suitable candidate was found

with unmodified qualifications.

The arbitrator adopts the remedy approved in Maritime Trades. The

evaluation and selection process for Vacancy Announcement - # OR 00-68 is to

be rerun as of its original date. If Grievant applies, he must be given credit for

the temp-14 experience for which back pay has been awarded in this opinion. If

50
the Successful Candidate applies, he should not be credited with his experience

as acting team leader at the 13 or 14 level. The reason for these restrictions is to

offset the disadvantage to Grievant and the advantage afforded the Successful

Candidate by the Agency’s improper actions.

The rerun must be conducted in accordance with the collective

bargaining agreement, Merit System Principles, and the 5th Amendment’s due

process guarantee and its equal protection content. No attempt should be made

to suppress inquiry into the truth of information contained in applications. The

Agency might do well to avoid the appearance of impropriety by having the

process conducted by qualified personnel independent of ORO and Y-12.

In ordering a rerun, the arbitrator is not unmindful that a lot of time has

passed since the Vacancy Announcement first was posted. However, the delay

in proceeding with arbitration may fairly be attributed to the Agency. Mr.

Cooper, Union shop chairman, testified that he thought the parties had reached a

settlement, but it fell through. The case should have been settled. AFGE Local

No. 1858 and US Army Aviation and Missile Command, 03-1 ARB ¶ 3410

(Cornelius Arb 2003) (declining to award grievant relief beyond promotion

employer had given her). Most importantly, nothing in this opinion should be

construed as preventing the parties from settling the case belatedly.

Unless the case otherwise is settled, the parties should meet within

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fifteen (15) days of the date of this opinion, in an effort to agree upon the back

pay, attendant benefits, and attorney’s fees due Grievant. If they are unable to

agree, within forty-five (45) days of the date of this opinion, each party should

submit to the arbitrator and serve upon the other party, a brief explaining its

position. Factual contentions should be supported by competent affidavits. The

arbitrator then will endeavor to resolve the issues remaining, without the

necessity of a further hearing.

III.D. Findings Of Fact And Conclusions Of Law

The arbitrator’s principal findings of fact and conclusions of law are

summarized below; other findings and conclusions are interspersed throughout

the opinion without expressly being designated as such:

1. The Successful Candidate was not selected for promotion from among a

group of properly ranked and certified candidates.

2. Grievant’s complaints are not limited to nonselection.

3. The Agency and its management engaged in Prohibited Personnel

Practices.

4. The Agency and its management violated Merit System Principles.

5. The Agency and its management engaged in unjustified and unwarranted

personnel actions.

6. The Agency and its management breached the collective bargaining

52
 agreement.

7. Grievant has been injured by the practices, violations, actions, and

breaches of the Agency and its management.

8. The Successful Candidate has been afforded preferential treatment.

9. Grievant has been a victim of intentional discrimination.

IV. AWARD

A. The grievance is sustained.

B. Grievant is awarded back pay and attendant benefits based upon the

differentials between the GS-14 and GS-13 levels, for the period of June

9, 1997 through December 31, 1999, and reasonable attorney’s fees. That

is to say, Grievant is awarded the difference between what he would have

earned at the higher level and what he actually earned at the lower one,

plus allocable attorney’s fees.

C. The evaluation and selection process for Vacancy Announcement - # OR

00-68 shall be rerun in a fair and equitable manner, as of its original date,

as specified in the foregoing opinion.

D. There shall be no retaliation against Grievant or his witnesses.

Nothing said by the arbitrator precludes the parties from reaching a superceding

settlement agreeable to themselves.

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Dated October 10, 2003 _____________________________
E. Frank Cornelius, Arbitrator

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