FR Doc E4-3377
[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

[[Page 69593]]

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
.



    Dated: November 24, 2004.
Troy R. Justesen,
Acting Deputy Assistant Secretary for Special Education and 
Rehabilitative Services.
[FR Doc. E4-3377 Filed 11-29-04; 8:45 am]

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