[Federal Register Volume 76, Number 75 (Tuesday, April 19, 2011)]
[Notices]
[Pages 21871-21872]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-9476]
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DEPARTMENT OF EDUCATION
Arbitration Panel Decision Under the Randolph-Sheppard Act
AGENCY: Department of Education.
ACTION: Notice of arbitration panel decision under the Randolph-
Sheppard Act.
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SUMMARY: The Department of Education (Department) gives notice that on
December 15, 2010 an arbitration panel rendered a decision in the
matter of Richard Thelen v. Michigan Commission for the Blind, Case no.
R-S/08-7. 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, Richard Thelen.
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: (202) 245-7374. 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 can 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
Richard Thelen (Complainant) alleged violations by the Michigan
Commission for the Blind, the State licensing agency (SLA), under the
Act and its implementing regulations in 34 CFR part 395. The
Complainant alleged that the SLA violated the Act, the implementing
regulations, and State rules and regulations by suspending his vending
operator's license at a vending facility at the Capitol View building
under management of The Department of Community Health (DCH) in
Lansing, Michigan (Capitol View).
On February 12, 2008, the SLA received a complaint from DCH
alleging that the Complainant had poor sanitary conditions at Capitol
View and demanded that Complainant be removed from the vending
facility. On
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February 13, 2008, the SLA suspended Complainant from the facility.
Complainant then requested a full evidentiary hearing from the SLA
on this matter. On August 4, 2008, the Administrative Law Judge (ALJ)
issued a recommended decision.
On November 14, 2008, the SLA adopted the ALJ's recommendation as
final agency action. Specifically, the SLA reimbursed Complainant for
lost wages for the five-week period from the time that complainant was
removed from his facility in February 2008 until his eligibility was
restored in March 2008 and for the two additional weeks for a
transition period to allow Complainant after his eligibility
restoration to bid on other locations. In addition, the SLA reimbursed
Complainant for attorney's fees and service time credit for time lost
during his license suspension. Also, the SLA agreed to provide
complainant assistance with bidding on new vending locations. However,
the SLA denied the complainant's request for punitive damages.
Subsequently, Complainant filed with the Department a request for
federal arbitration seeking an appeal of the state fair hearing
decision based upon the following reasons: (1) Complainant alleged that
the attorney fees of $3,550 awarded to him by the SLA were inadequate;
(2) Complainant requested service time for retirement alleging he would
have been working if he had not been improperly removed from his
facility; (3) Complainant requested that he receive a priority bid for
another vending facility; (4) Complainant requested loss wages from the
time he was removed from his facility to the time of his retirement
several years in the future; (5) Complainant requested punitive damages
because he asserts that the SLA summarily removed him from the facility
and awarded it to another vendor before the SLA determined the validity
of the complaint against him by DCH; and (6) Complainant alleged that
he did not receive due process from the SLA.
Arbitration Panel Decision
After reviewing all of the evidence and testimony, the panel
unanimously ruled:
(1) Complainant was entitled to be reimbursed for one Additional
hour of attorney's fees in the amount of $200.00.
(2) Complainant's request for service time for Retirement was under
the authority of the Office of Retirement Services (ORS) and not under
the authority ofthe Federal arbitration panel. However, the SLA agreed
to recommend service credit to ORS for the time Complainant's license
was suspended.
(3) Complainant was not entitled to receive a a priority bid for
another vending facility based upon the findings that a priority bid
would harm other vendors and there was no basis to determine that
Complainant needed a priority bid in order to be successful.
(4) Complainant's request to be awarded lost wages from the time he
was removed from his facility to the time of his later retirement was
denied. However, the panel also ruled that the SLA's calculation of
lost wages was unreasonable. The SLA had granted Complainant seven
weeks of lost wage. This was based on the five-week period from the
time the Complainant was removed from his facility in February 2008,
until his eligibility was restored in March 2008, plus two additional
weeks for a transition period to allow Complainant to bid on other
locations once the SLA restored his eligibility.
The panel ruled that the transition period approved by the SLA was
unreasonable in that it only allowed Complainant two weeks to bid on
another location. Thus, the panel awarded the Complainant an additional
ten weeks of lost wages at $192.32 per week or a total amount of
$1,923.20.
(5) Complainant's request for punitive damages was denied based
upon the finding that the SLA did not engage in extreme or outrageous
behavior.
(6) Complainant had not been denied due process concerning his
complaint given that any procedural errors were rectified based upon
the timely restoration of his eligibility and compensatory damages.
The views and opinions expressed by the panel do not necessarily
represent the views and opinions of the Department.
Electronic Access to This Document: 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 via the Federal Digital System
at: http://www.gpo.gov/fdsys. At this site you can view this document,
as well as all other documents of this Department published in the
Federal Register, in text or Adobe Portable Document Format (PDF). To
use PDF you must have Adobe Acrobat Reader, which is available free at
this site.
Dated: April 14, 2011.
Alexa Posny,
Assistant Secretary for Special Education and Rehabilitative Services.
[FR Doc. 2011-9476 Filed 4-18-11; 8:45 am]
BILLING CODE 4000-01-P