RODNEY JACKSON V. TENNESSEE DEPARTMENT OF HUMAN SERVICES, THE DIVISION FOR THE BLIND AND VISUALLY IMPAIRED

[Federal Register: November 30, 2004 (Volume 69, Number 229)]
[Notices]              
[Page 69592-69593]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr30no04-44]                        
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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 gives notice that on July 18, 2003, an arbitration panel rendered a decision in the matter of Rodney Jackson v. Tennessee Department of Human Services, the Division for the Blind and Visually Impaired (Docket No. R-S/02-2). This panel was convened by the U.S. Department of Education, under 20 U.S.C. 107d-1(a), after the Department received a complaint filed by the petitioner, Rodney Jackson.

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), you may call the Federal Information Relay Service (FIRS) at 1-800-877-8339. Individuals with disabilities may obtain this document in an alternative format (e.g., Braille, large print, audiotape, or computer diskette) on request to the contact person listed in the preceding paragraph.

SUPPLEMENTARY INFORMATION: Under section 6(c) of the Randolph-Sheppard
Act (the 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
This dispute concerns the alleged improper termination of Mr. Rodney Jackson's vending operator's license by the Tennessee Department of Human Services,

the Division for the Blind and Visually Impaired, in violation of the Act (20 U.S.C. 107 et seq.) and the implementing regulations in 34 CFR part 395.

A summary of the facts is as follows: On October 16, 1998, Mr. Rodney Jackson (complainant) was the successful bidder and was assigned by the Tennessee Department of Human Services, the Division for the Blind and Visually Impaired, the State licensing agency (SLA), to operate Facility 218 located in the Shelby County Administrative Complex in Memphis, Tennessee. In 1998, Facility
218 was a vending-only operation and later was converted to a manual food service and vending machine operation.

Complainant alleged that before being assigned to Facility 218, he had completed the SLA's Business Enterprise management training program, graduating as the top student in the class, and had completed a course on health and sanitation from the National Restaurant Association. Complainant also alleged that, from July 1999 through April 2000, he successfully managed Facility 218 in such a manner that he was awarded the title ``Rookie of the Year.'' Moreover, complainant alleged that when he began managing Facility 218, he repeatedly requested cooking utensils, surveillance equipment, mop and food preparation sinks, and a viable connection to the hot food table, which he maintained were not provided at the time Facility 218 was converted from a vending-only facility to a manual food service and vending machine facility. Complainant further alleged that a former disgruntled employee was the motivating factor behind a petition by the Shelby County employees to remove him from Facility 218 and that he had never failed a Shelby County
Government health inspection.

Conversely, the SLA maintained that it complied fully with the Act, implementing regulations, and State laws and regulations governing the removal of complainant from Facility 218 and the revocation of his vending facility operator's license.

The SLA alleged that beginning in or about January 2000 the situation at Facility 218 began to deteriorate. The SLA stated that the facility was closed a number of times when it should have been open, and customers began to complain about sanitation, fluctuating item prices, lack of items in the vending machines, and cleanliness. During the summer of 2000, more than one-third of the employees in the building where Facility 218 was located signed a complaint
petition. The SLA further alleged that inspection reports by the SLA showed that complainant failed seven of eight inspections.

In September 2000, the SLA stated that it gave complainant a letter citing poor inspection reports and customer complaints and then placed him on probation. In October 2000, the SLA gave complainant a second notice advising him of a 30-day notice of intent to terminate his operating license.

Subsequently, in November 2000 the property managing official at the Shelby County Administrative Complex sent written notice to the SLA terminating its food and vending machine services. On December 6, 2000, the SLA notified complainant of the termination of his operating license to manage Facility 218.

Complainant requested a State fair hearing, which was held on February 16, 2001. On March 26, 2003, the hearing officer affirmed the SLA's termination of complainant's license and removal from Facility 218.

Arbitration Panel Decision

The issue heard by the panel was whether the SLA violated the Act, 20 U.S.C. 107 et seq., the implementing regulations in 34 CFR part 395, and the State regulations by allegedly improperly terminating complainant's vendor operating license and removing him from Facility 218, and, if so, what was the appropriate remedy.

After reviewing all of the records and hearing testimony of witnesses, the panel unanimously ruled that the SLA acted properly and in full and fair compliance with the Act, implementing regulations, and State rules and regulations in removing complainant from Facility 218. The panel stated that the SLA has the responsibility to both vendors and customers, as well as to the agencies where vending facilities are located, to provide quality service and to preserve job opportunities for blind vendors.

Therefore, the panel denied complainant's grievance, but instructed the SLA to allow Mr. Jackson the opportunity to qualify for issuance of a license to operate another vending facility following appropriate training at the SLA's expense. Upon Mr. Jackson's re-qualifying for a license, the SLA was instructed to reinstate his seniority as if his license had not been terminated. However, his placement would follow normal agency assignment protocol.

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

Electronic Access to This Document

You may view this document, as well as all other Department of
Education documents published in the Federal Register, in text or Adobe Portable Document Format (PDF) on the Internet at the following site: http://www.ed.gov/news/fedregister. To use PDF you must have Adobe Acrobat Reader, which is available free at this site. If you have questions about using PDF, call the U.S. Government Printing Office (GPO), toll free, at 1-888-293-6498; or in the Washington, DC, area at (202) 512-1530. Note: The official version of this document is the document published in the Federal Register. Free Internet access to the official edition of the Federal Register and the Code of Federal Regulations is available on GPO Access at: http://www.gpoaccess.gov/nara/index.html.

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