[Federal Register Volume 77, Number 5 (Monday, January 9, 2012)]
[Notices]
[Pages 1062-1063]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-147]


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DEPARTMENT OF EDUCATION


Arbitration Panel Decision Under the Randolph-Sheppard Act

AGENCY: Department of Education.

ACTION: Notice decision.

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SUMMARY: The Department of Education (Department) gives notice that on 
August 29, 2011, an arbitration panel rendered a decision in the matter 
of Judy A. Davis-Perry v. Missouri Department of Social Services 
Rehabilitation Services for the Blind, Case no. R-S/10-1. The 
Department convened this panel after receiving a complaint filed by the 
Complainant, Judy A. Davis-Perry.

FOR FURTHER INFORMATION CONTACT: You may obtain a copy of the full text 
of the arbitration panel decision from Mary Yang, U.S. Department of 
Education, 400 Maryland Avenue SW., room 5162, Potomac Center Plaza, 
Washington, DC 20202-2800. Telephone: (202) 245-6327. 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

[[Page 1063]]

format (e.g., braille, large print, audiotape, or compact disc) 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

    Judy A. Davis-Perry (Complainant) alleged violations by the 
Missouri Department of Social Services, Rehabilitation Services for the 
Blind, the State licensing agency (SLA) under the Act, and implementing 
regulations in 34 CFR part 395. Complainant alleged that the SLA 
improperly denied her bid to manage Vending Facility 195, a 
vending machine facility, at the Internal Revenue Service (IRS) 
Consolidation offices in Kansas City, Missouri.
    Specifically, Complainant alleged that the SLA's selection 
procedures was biased and flawed and that the SLA discriminated against 
her in selecting another bidder.
    On October 30, 2009, the SLA mailed out a bid announcement to all 
licensed blind vendors notifying them of a Level II vending opening at 
Vending Facility 195.
    On November 5, 2009, Complainant submitted her bid to manage 
Vending Facility 195.
    On November 21, 2009, the SLA's Executive Committee (Committee,) 
which had the responsibility to administer the SLA's transfer and 
promotions procedures, interviewed five applicants for Vending Facility 
195, including Complainant.
    On November 24, 2009, the Committee discussed the applicants and 
voted unanimously to recommend another vendor to Vending Facility 
195.
    The successful applicant was also a member of the Committee. 
However, the successful applicant did not participate in the interviews 
of the other applicants, the Committee's discussions, or its decision.
    The successful applicant was the first or second choice of all five 
Committee members. Complainant was ranked no higher than third on any 
Committee member's ballot.
    On November 30, 2009, the Deputy Director of the SLA advised 
Complainant that another applicant had been awarded the bid to manage 
Vending Facility 195. Subsequently, Complainant requested an 
administrative review from the SLA concerning the appointment of 
another vendor to manage Vending Facility 195.
    On December 21, 2009, SLA staff advised Complainant that her 
administrative review had been scheduled for January 10, 2010.
    On January 25, 2010, the SLA's Deputy Director issued a written 
decision to Complainant rejecting her complaint about the selection 
process and the appointment of the other vendor to Vending Facility 
195.
    On February 2, 2010, Complainant filed for a State fair hearing of 
her complaint regarding Vending Facility 195. The SLA held a 
State fair hearing on July 28, 2010.
    On August 12, 2010, the hearing officer issued a written 
recommendation to the SLA rejecting Complainant's complaint about the 
appointment and selection process for Vending Facility 195. 
The hearing officer's recommendation was later adopted by the SLA as 
its final administrative decision.
    Subsequently, Complainant filed with the Department a request for 
Federal arbitration seeking an appeal of the State fair hearing 
decision. A Federal arbitration panel was convened on May 5, 2011, 
pursuant to 20 U.S.C. 207d-1(a). The issues as stated by the Federal 
arbitration panel were: (1) Whether the SLA's final decision to select 
another vendor to manage Vending Facility 195, instead of 
Complainant, was supported by competent and substantial evidence based 
upon the whole record or, rather, constituted an abuse of discretion, 
was arbitrary and capricious or was made without statutory authority; 
and (2) whether the SLA's final decision to select another blind 
operator to manage Vending Facility 195, instead of 
Complainant, unlawfully discriminated against Complainant on the basis 
of her physical disability or impairment.

Arbitration Panel Decision

    After reviewing all of the testimony and evidence, the majority of 
the panel denied Complainant's complaint in its entirety. Specifically, 
the panel majority found that the SLA's selection of another blind 
vendor was supported by substantial evidence based on the entire 
record. The panel majority rejected Complainant's argument that the 
Committee's recommendations to the SLA were inconsistent with the 
Randolph-Sheppard Act and the implementing regulations. Similarly, the 
panel majority rejected Complainant's argument that the SLA's Deputy 
Director merely rubber stamped the Committee's recommendations to 
select another vendor for Vending Facility 195. The panel 
concluded that the evidence did not support Complainant's allegation 
that the process used in selecting another vendor was biased or flawed.
    Concerning issue number 2 Complainant alleged that the SLA 
discriminated against her by providing the Committee information about 
a customer complaint concerning Complainant's service dog wandering 
around her convenience store. The panel majority concluded that 
Complainant failed to produce any evidence that suggested that the SLA 
considered Complainant's use of a service dog in making its 
recommendation and award of Vending Facility 195.
    One panel member concurred with the panel majority's decision to 
deny the Complainant's grievance in whole, but dissented from the 
decision on the process of awarding vending facilities by the SLA, 
stating that there are some potential problems with the SLA's current 
bid-selection process, possibly due to the small number of blind 
vendors in the program.
    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: 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.
    You may also access documents of the Department published in the 
Federal Register by using the article search feature at http://www.federalregister.gov. Specifically, through the advanced search 
feature at this site, you can limit your search to documents published 
by the Department.

    Dated: January 4, 2012.
Alexa Posny,
Assistant Secretary for Special Education and Rehabilitative Services.
[FR Doc. 2012-147 Filed 1-6-12; 8:45 am]
BILLING CODE 4000-01-P