[ v49 p1610 ]
49:1610(148)AR
The decision of the Authority follows:
49 FLRA No. 148
FEDERAL LABOR RELATIONS AUTHORITY
WASHINGTON, D.C.
_____
UNITED STATES CUSTOMS SERVICE
OFFICE OF REGULATIONS AND RULINGS
(Agency)
and
NATIONAL TREASURY EMPLOYEES UNION
(Union)
0-AR-2537
_____
DECISION
July 15, 1994
_____
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator Michael Fischetti filed by the Union under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. The Agency filed an opposition to the Union's exceptions.
A grievance was filed over the Agency's failure to promote an employee. The Arbitrator sustained the grievance in part by finding that although the Agency did not unlawfully discriminate against the employee, the Agency's selection process was conducted in violation of its 1986 Merit Promotion Plan and the parties' collective bargaining agreement. As a remedy, the Arbitrator ordered that the employee be given priority consideration for the next appropriate vacancy.
For the following reasons, we find that the Union's exceptions provide no basis for finding the award deficient. Accordingly, we will deny the exceptions.
II. Background and Arbitrator's Award
The grievant is a GS-13 Attorney-Advisor and has worked for the Agency's Office of Regulations and Rulings (ORR) since 1988. She worked in the Penalties Branch of the International Trade Compliance (ITC) Division until February of 1992 and from that time on she has worked in the Intellectual Property Rights (IPR) Branch of the ITC Division. The grievant is a married woman and has worked a part-time schedule of 32 hours a week or more since September of 1990. In 1991, the grievant received an Employee Performance Appraisal System (EPAS) rating of Excellent, rather than Outstanding, from her supervisor Edward Rosse. According to the grievant, Rosse "told her that she did not merit outstanding because she was not available on Thursday afternoons and Fridays." Award at 8. The grievant did not grieve her 1991 EPAS rating.
In March 1991, the Agency posted a vacancy announcement for applicants for merit promotion to GS-14 Attorney-Advisor in ORR. In a memorandum dated August 1991, the Agency informed employees in ORR that the March vacancy announcement would be used to select a GS-14 attorney for each of the following four branches of the ITC or Commercial Rulings Divisions: Penalties, IPR, Carrier Rulings, and Entry Rulings. Of the seventeen applicants, seven were male and ten were female. The grievant applied for a position in three of the branches in September 1991. The evaluation board met on October 4, 1991, to rate and rank the applicants. The board consisted of Rosse and two other officials. In a memorandum dated November 7, 1991, the Agency informed the grievant that she had not been selected for any of the positions. The employees selected, three males and one female, were all married and chosen for positions within the branches where they already were working. Seven other candidates, five females and two males, made the best-qualified list. The grievant did not make the best-qualified list.
On December 23, 1991, the grievant filed a grievance over the Agency's failure to select her for any of the positions.(1) The parties were unable to resolve the grievance and the matter was submitted to arbitration.
The Arbitrator framed the following issues: (1) "[W]hether or not the rating and ranking procedures concerning the grievant's non-selection for promotion were proper"; and (2) "Did the Agency violate Article 6, PROTECTION AGAINST PROHIBITED PERSONNEL PRACTICES, Section 2, Subsection A(5) and/or Article 6, Section 2, Subsection F of the National Agreement when it failed to promote the grievant to Grade Level 14, regarding the Vacancy Announcement HQA/91-074LS? If so, what is the appropriate remedy?" Id. at 3, 32.(2)
The Arbitrator examined the threshold issue of whether the rating and ranking procedures used by the selection panel were proper under the parties' collective bargaining agreement and the Agency's 1986 Merit Promotion Plan. The Arbitrator found that although each of the members of the evaluation board "gave a feasible rationale for rating and ranking the candidates, inconsistencies became evident when the individual board members were asked [during the hearing] how they would score the candidates . . . ." Id. at 41. The Arbitrator found that the board members' "inability to replicate their initial scores[] show[ed] that there [wa]s a serious flaw in the promotion procedures" and "a systemic weakness in the rating process." Id. at 41, 42. The Arbitrator found that the candidates' ratings were affected by "the subjectivity of the process itself . . . ." Id. at 42. The Arbitrator concluded that based on the shortcomings in the rating process "the grievant[,] along with others[,] was not properly evaluated" and the Agency had violated Article 17 (Merit Promotion) of the parties' 1987 collective bargaining agreement and the Agency's 1986 Merit Promotion Plan. Id.
Before determining a remedy for this violation, the Arbitrator examined whether the Agency unlawfully discriminated against the grievant when it failed to select her for promotion. The Arbitrator analyzed the Union's argument that it had established a prima facie case of sex discrimination "based upon the statistical disparity" between the number of males and females at the GS-14 level in ORR and the "'vague and inconclusive promotion criteria' that existed" for the positions at issue in this case. Id. at 36. With respect to the alleged statistical disparity, the Arbitrator noted that it was "evident that in 1991[,] males [in GS-14 attorney positions] outnumbered females in disproportionate terms" and that "the average time in grade at the GS-13 level of the seven female GS-14 attorneys in ORR was 53 months versus 37 months for the forty GS-14 male attorneys." Id. at 36, 38. The Arbitrator further noted that "ORR has grown continuously and the bulk of the GS-14 promotions went to males" but that "a substantial number of male GS-14's in ORR were promoted prior to the hiring of females into entry[-]level attorney positions in ORR." Id. at 38. Although the Arbitrator stated that the "statistical disparity [wa]s evident, and . . . compelling on its face[,]" the Arbitrator found that "the information about the availability of females for the positions in question [wa]s insufficient, as [wa]s the information about the pool of applicants who may have been available for previous promotional opportunities." Id. The Arbitrator concluded that in these circumstances, the statistical information "on the record is inconclusive, and does not provide a basis for making a prima facie case." Id. at 38-39.
The Arbitrator noted the Union's argument that the Agency's ratings and rankings of applicants were based on the applicants' marital status. The Arbitrator found that marital status was not a factor affecting how the Agency rated and ranked the applicants and noted that the grievant and all of the selectees were married.
The Arbitrator also noted the Union's assertion that the grievant suffered discrimination in the promotion process because she worked part-time. The Arbitrator found that the grievant "appear[ed] to have suffered discrimination . . . because of her part-time status" but concluded that such discrimination was not related to sex or marital status discrimination because there was "no evidence that her supervisor would not have made the same observation and given the same ratings to a male or unmarried employee" working part-time. Id. at 49. The Arbitrator further found that the grievant experienced discrimination based on part-time status at the time that Rosse rated her performance and, thus, before her application for promotion was reviewed by the evaluation board in 1991. The Arbitrator noted that the other two board members were not aware of the grievant's part-time status and found that there was no evidence on the record that the grievant was discriminated against during the evaluation and selection process.
The Arbitrator concluded that the record did not show that but for the discriminatory conduct of the Agency, the grievant would have been selected for promotion over the other candidates. Accordingly, the Arbitrator denied the Union's request that the grievant receive a retroactive promotion to the 1991 position with backpay.
Having concluded that the Agency did not unlawfully discriminate against the grievant, the Arbitrator next examined the Union's arguments that the Agency's ratings and rankings of applicants for the GS-14 positions at issue in this case were based on personal favoritism or military service. The Arbitrator found that "there has been no documentary evidence that any personal favoritism was a factor" and that, based on the small number of applicants and selectees with military service, "it was not likely that prior military service played any significant role in the selection process." Id. at 39.
Finally, having found above that the Agency conducted its rating process in violation of Article 17 (Merit Promotion) of the parties' 1987 collective bargaining agreement and the Agency's 1986 Merit Promotion Plan, the Arbitrator found that the grievant is entitled under the agreement to receive priority consideration for the next appropriate vacancy for which she is qualified. The Arbitrator stated that the next promotional opportunity for the grievant took place in 1992 and that the grievant applied for the position, made the best-qualified list, but was not selected for the position. The Arbitrator noted, however, that the grievant filed an EEO complaint over the Agency's failure to select her for the 1992 position. The Arbitrator found that the grievant's "pending EEO complaint means the Arbitrator is precluded from ordering priority consideration for the 1992 promotion." Id. at 50. Accordingly, the Arbitrator ordered that the grievant be given priority consideration for the next appropriate vacancy for which she is qualified.
III. Positions of the Parties
A. Union
The Union excepts to the Arbitrator's failure to find that the Agency violated Title VII of the Civil Rights Act of 1964 (Civil Rights Act of 1964) when it failed to select the grievant for promotion based on her sex and marital status. The Union contends that the Arbitrator's finding that the grievant did not establish a prima facie case of sex discrimination is contrary to law because the "gross statistical disparity" between the number of male GS-14's and the number of female GS-14's within ORR in general and within the ITC division in particular "establishes, in and of itself, a prima facie case of sex discrimination against the grievant." Brief in Support of Exceptions at 2 (citing International Brotherhood of Teamsters v. United States, 431 U.S. 324, 339 (1977) (Teamsters)). The Union further contends that these statistics, combined with the Agency's "use and implementation of vague and inconclusive selection criteria," also establish a prima facie case of sex discrimination. Id. at 3 (citing Muller v. United States Steel Corp., 509 F.2d 923 (10th Cir.) (Muller), cert. denied, 423 U.S. 825 (1975)).
The Union maintains that the "record developed during the arbitration hearing [] established that the Agency's stated explanation for not selecting the grievant was a pretext for discrimination." Id. In this regard, the Union requests that the Authority consider: (1) a comparison of the grievant's application with those of the selectees and the other candidates on the best-qualified list; (2) Rosse's admission that he had not given the grievant an Outstanding rating because she worked part-time; (3) Rosse's inability to support his ratings; and (4) the "complete subjectivity" of the merit promotion process. Id. at 4. The Union argues that the Arbitrator "erred in finding no evidence of sex and[/]or marital [status] discrimination" and that "the record as a whole supports a finding that [the grievant] was not selected for the Attorney-Advisor GS-14 position in 1991 solely because of sex discrimination and that but for th[e] Agency's unlawful conduct, she would have been selected." Id. The Union contends that in these circumstances, the "Agency is required to retroactively promote [the grievant] to the GS-14 Attorney Advisor [p]osition, with back pay, as of the date the other selectees in the 1991 merit promotion action were promoted." Id. at 4-5.
The Union also excepts to the remedy the Arbitrator ordered for the Agency's violation of the parties' agreement and the Merit Promotion Plan. The Union argues that, contrary to the Arbitrator's finding, the Arbitrator does have the authority to order the Agency to retroactively promote the grievant based on the 1992 merit promotion action and that the Arbitrator should have ordered the Agency to do so. The Union "[p]resum[es]" that the Arbitrator's failure to order such a remedy "is because of his incorrect reading of the relevant EEOC procedures." Id. at 6. According to the Union, nothing in the EEOC procedures, 29 C.F.R. § 1600 et seq., limits the authority of the Arbitrator to order the Agency to place the grievant in the 1992 GS-14 position. The Union contends that "[t]here is simply no legal support for [the Arbitrator's] conclusion that merely because [the grievant] happened to file an EEO complaint as a result of her non-selection in 1992, he is prevented by law from awarding her the 1992 position." Id. at 5-6. The Union maintains that the Arbitrator's conclusion in this regard is contrary to law and requests that the Authority order the Agency to retroactively promote the grievant to the 1992 position and award her appropriate backpay.
B. Agency
The Agency argues that, consistent with Teamsters, the Arbitrator "correctly" analyzed the surrounding circumstances in this case to conclude that the grievant did not establish a prima facie case of sex discrimination. Opposition at 7. The Agency contends that the "record reveals ample evidence to support the Arbitrator's finding that sex discrimination played no part in the merit promotion rankings" and that the grievant "did not meet her burden of showing that but for any sex discrimination[,] she would have been selected for this merit promotion." Id. at 7, 8.
The Agency also argues that the remedy ordered by the Arbitrator "is the best remedy provided by the Agency's merit promotion plan for failure to give proper consideration in a merit promotion." Id. at 9. The Agency contends that "[r]etroactive promotion and backpay are not authorized for violations of the merit promotion plan except in EEO cases" and that the Arbitrator found no sex discrimination in this case. Id. The Agency acknowledges that the Arbitrator found that Rosse discriminated against the grievant based on her part-time status, but argues that part-time status "is not a protected status under the EEO laws." Id. The Agency maintains that as the Arbitrator found no illegal discrimination, the Union "errs as a matter of law in citing EEOC regulations" in support of a different remedy in this case. Id. The Agency further argues that the Arbitrator properly declined to order that the grievant be placed in the 1992 position because "the grievant has elected her EEO remedy as to any discrimination in the 1992 rankings." Id.
IV. Analysis and Conclusions
A. The Award Is Not Contrary to Law
The Arbitrator found that the Union failed to establish a prima facie case of sex discrimination based on an alleged statistical disparity between the number of males and females in GS-14 Attorney-Advisor positions. The Arbitrator examined the statistics offered by the Union and found that although the "statistical disparity [wa]s evident, and . . . compelling on its face[,]" the "information about the availability of females for the positions in question [wa]s insufficient, as [wa]s the information about the pool of applicants who may have been available for previous promotional opportunities." Award at 38. The Arbitrator concluded that, in these circumstances, the statistical information "on the record is inconclusive, and does not provide a basis for making a prima facie case." Id. at 38-39. The Arbitrator also found that there was no evidence on the record that the grievant was discriminated against based on sex or marital status during the evaluation and selection process.
The Union argues that the award is contrary to the Civil Rights Act of 1964 because the "gross statistical disparity" between the number of male GS-14's and the number of female GS-14's within ORR in general and within the ITC division in particular "establishes, in and of itself, a prima facie case of sex discrimination against the grievant." Brief in Support of Exceptions at 2 (citing Teamsters). The Union further argues that these statistics combined with the Agency's "use and implementation of vague and inconclusive selection criteria" also establish a prima facie case of sex discrimination and that the record shows that the Agency's stated reason for not selecting the grievant was a pretext for discrimination. Id. at 3 (citing Muller).
We interpret the Union's assertion that the alleged statistical disparity between the number of male and female GS-14 Attorney-Advisors alone establishes a prima facie case of sex discrimination as an assertion that the Agency's selection process had a disparate impact on women. To establish a prima facie case of sex discrimination based on a disparate impact theory, an employee may rely on statistics to show that a policy or practice complained of has a substantially disproportionate exclusionary impact on a protected class. Schlei & Grossman, Employment Discrimination Law, Ch. 36 at 1326 (David A. Cathcart et al. eds, 2d ed. 1983). See Wards Cove Packing Co. v. Atonio, 490 U.S. 642 (1989) (Wards Cove).(3) The significance of statistical evidence in any given case depends on all the surrounding facts and circumstances. Teamsters, 431 U.S. at 340. Under Wards Cove, the employee must also prove a causal link between a specific employment practice and the imbalance in the employer's work force. Wards Cove, 490 U.S. at 656-58.
As we noted previously, the Arbitrator examined what appeared to be a "compelling" statistical disparity between the number of males and female GS-14 Attorney-Advisors in ORR. Award at 38. However, the Arbitrator found that a substantial number of male GS-14's in ORR were promoted prior to the hiring of females into entry-level attorney positions and that there was insufficient information about the pool of applicants or the availability of females for other previous promotional opportunities. Based on his evaluation of the statistical evidence, the Arbitrator concluded that the statistical information was inconclusive and did not provide a basis for establishing a prima facie case of sex discrimination. The Union has not shown that the statistical information provided to the Arbitrator established a prima facie case of sex discrimination under Wards Cove. Absent any demonstration by the Union that, as a matter of law, the statistics examined by the Arbitrator and relied on by the Union established a prima facie case, we find that the Union has not shown that the award is contrary to the Civil Rights Act of 1964. See American Federation of Government Employees, Local 1867 and U.S. Department of the Air Force, United States Air Force Academy, Colorado Springs, Colorado, 49 FLRA 1164, 1172 (1994) (the union did not demonstrate that, as a matter of law, the agency violated the Civil Rights Act of 1964) (United States Air Force Academy). See also Hatcher-Capers v. Haley, 786 F. Supp. 1054 (D.D.C. 1992) (the plaintiff did not establish a prima facie case of discrimination based on a disparate impact theory because she "failed to make her statistics sufficiently meaningful to the [c]ourt"); Lopez v. Metropolitan Life Insurance Co., 930 F.2d 157 (2d Cir. 1991) (noting that the appellant's statistical proof was "fundamentally inadequate[,]" the court affirmed the lower court's finding that the appellant had not established a prima facie case of discrimination based on disparate impact).
We also find that the Union has not shown that, as a matter of law, the Agency discriminated against the grievant based on her sex or marital status during the evaluation and selection process. The Arbitrator found that although prior to the disputed selection action the grievant's supervisor had discriminated against the grievant based on her part-time status, such discrimination was not related to her sex or marital status, and there was no evidence on the record that the grievant was discriminated against during the evaluation and selection process. We find that the Union's assertion to the contrary constitutes mere disagreement with the Arbitrator's evaluation of the evidence and an attempt to relitigate the merits of the case before the Authority. Such disagreement provides no basis for finding the award deficient. See Social Security Administration and American Federation of Government Employees, Local 1923, 35 FLRA 160, 166 (1990) (the union failed to establish that the award was contrary to the Civil Rights Act of 1964; the union's assertions constituted nothing more than disagreement with the arbitrator's evaluation of the evidence and an attempt to relitigate the merits of the case).
We note that the Union relies on Muller to support its argument that the statistics in this case combined with the Agency's use and implementation of vague and inconclusive selection criteria also establish a prima facie case of sex discrimination. We stated previously that, pursuant to Teamsters, the significance of statistical evidence in any given case depends on all the surrounding facts and circumstances. The statistical evidence used to establish a prima facie case of discrimination in Muller was significant because it showed that despite the presence in the workplace of individuals from the employee's protected class, no one of that class had ever been promoted to the type of position in question. The Arbitrator found no similar significance to the statistical evidence in this case and noted, instead, that the statistics here were "inconclusive[.]" Award at 38. We find that the facts and circumstances found by the Arbitrator in this case are distinguishable from those in Muller and, therefore, we conclude that the Union's reliance on Muller is misplaced.
Having found that the Union has not shown that the Arbitrator erred in failing to conclude that it had established a prima facie case of sex discrimination, we do not need to address the Union's argument that the "record developed during the arbitration hearing [] established that the Agency's stated explanation for not selecting the grievant was a pretext for discrimination." Brief in Support of Exceptions at 3. Moreover, we note the Union's request that we compare the grievant's application with those of the selectees and the other candidates on the best-qualified list and reexamine both Rosse's admission that he had not given the grievant an Outstanding rating because she worked part-time and the complete subjectivity of the merit promotion process. We find that the Union's request constitutes an attempt to relitigate the merits of the case and provides no basis for finding the award deficient. See United States Air Force Academy.
Accordingly, for the foregoing reasons, we conclude that the Union's exception that the award is contrary to the Civil Rights Act of 1964 provides no basis for finding the award deficient.
B. Remedy
The Arbitrator found that the Agency conducted its rating process in violation of Article 17 (Merit Promotion) of the parties' 1987 collective bargaining agreement and the Agency's 1986 Merit Promotion Plan. The Arbitrator found that under the agreement the grievant was entitled to receive priority consideration for the next appropriate vacancy for which she was qualified and that the next such vacancy occurred in 1992. The Arbitrator noted, however, that the grievant filed an EEO complaint over the Agency's failure to select her for the 1992 position. The Arbitrator concluded that the grievant's "pending EEO complaint means the Arbitrator is precluded from ordering priority consideration for the 1992 promotion." Award at 50. Accordingly, the Arbitrator ordered that the grievant be given priority consideration for the next appropriate vacancy for which she is qualified.
The Union argues that the Arbitrator's remedy is contrary to law because "[t]here is simply no legal support for [the Arbitrator's] conclusion that merely because [the grievant] happened to file an EEO complaint as a result of her non-selection in 1992, he is prevented by law from awarding her the 1992 position." Brief in Support of Exceptions at 5-6. The Union "[p]resum[es]" that the Arbitrator's failure to order such a remedy "is because of his incorrect reading of the relevant EEOC procedures[]" and argues that nothing in the EEOC procedures, 29 C.F.R. § 1600 et seq., limits the authority of the Arbitrator to order the Agency to place the grievant in the 1992 GS-14 position. Id. at 6.
As noted, the Union "[p]resum[es]" that the Arbitrator failed to order the Agency to place the grievant into the 1992 position because he incorrectly read the relevant EEOC procedures. Id. We note that the Union argues that the Arbitrator should have ordered the Agency to place the grievant into the 1992 position. However, the Arbitrator stated only that he would have ordered the Agency to give the grievant priority consideration for the 1992 position, not to place her into that position, had he not believed that he was precluded from doing so. Arbitrators have great latitude in fashioning remedies. For example, U.S. Department of Justice, U.S. Federal Bureau of Prisons, U.S. Penitentiary, Lewisburg, Pennsylvania and American Federation of Government Employees, Council of Prison Locals, Local 148 C-33, 39 FLRA 1288, 1296 (1991) (Bureau of Prisons), petition for review denied, 981 F.2d 1339 (D.C. Cir. 1993).
The Arbitrator did not state whether he believed he was precluded by a collective bargaining agreement provision, law, or some other reason from awarding the grievant priority consideration for the 1992 position. The Arbitrator merely noted that the grievant had filed an EEO complaint over the Agency's failure to select her for the 1992 position and stated that the "pending EEO complaint means the Arbitrator is precluded from ordering priority consideration for the 1992 promotion." Award at 50. Although the Arbitrator did not discuss his reasons for concluding that the grievant's pending EEO complaint precluded him from ordering priority consideration for the 1992 position, he was not obligated to do so and his failure to do so provides no basis for finding the award deficient. See U.S. Department of the Army, Headquarters, XVIII Airborne Corps, Fort Bragg, North Carolina and American Federation of Government Employees, Local 1770, 41 FLRA 56, 61 (1991) (there is no general obligation to set forth specific findings or rationale to support an award).
Moreover, we find that if the Arbitrator relied on a contractual provision, such as one relating to the processing of EEO complaints, to conclude that he was precluded from awarding the grievant priority consideration for the 1992 position, an exception to that conclusion would generally constitute mere disagreement with the Arbitrator's interpretation of the parties' agreement and would also provide no basis for finding the award deficient.
The Union argues that the Arbitrator's remedy is contrary to law, but cites no law with which the remedy allegedly conflicts. We noted above the Union's reference to EEOC procedures, but find that because the Arbitrator found no unlawful discrimination in this case, those procedures do not apply to the Arbitrator's remedy. Moreover, the fact that, as noted by the Union, nothing in the EEOC procedures limits the authority of the Arbitrator to order the Agency to place the grievant in the 1992 position does not mean that the Arbitrator was required to order such a remedy. Having found no law with which the remedy conflicts, we find that the Union's exception provides no basis for finding the award deficient. See American Federation of Government Employees, Local 1138 and U.S. Department of Defense, Defense Commissary Agency, 49 FLRA No. 115 (1994), slip op. at 5 (the union did not demonstrate that the Federal Personnel Manual, or any other statute or regulation, required the arbitrator to order the remedy requested by the union and, therefore, failed to establish that the award was deficient).
V. Decision
The Union's exceptions are denied.
APPENDIX
Article 6 Protection Against Prohibited Personnel Practices
. . . .
Section 2. In accordance with 5 USC 2302, the Employer shall not:
A. Discriminate for or against any employee or applicant for employment:
. . . .
(5) on the basis of marital status or political affiliation, as prohibited under any law, rule, or regulation.
. . . .
F. 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.
Article 17 Merit Promotion
Section 1. A. It is the purpose of this Article to provide a systematic and equitable procedure for filling positions through competitive procedures based upon merit principles. It is the intent of Federal Merit Promotion Policy that employees compete through an established procedure for those position changes which will enhance their career prospects. The parties agree that the selection and advancement of employees 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.
. . . .
Section 19. When a determination is made that a violation has occurred with respect to an action covered by this Article, remedial action may be taken or directed as follows:
. . . .
(2) If an employee was improperly or erroneously omitted from a "Best Qualified" list, he shall receive priority consideration for the next appropriate vacancy for which he is qualified[.]
FOOTNOTES:
(If blank, the decision does not
have footnotes.)
1. Subsequently, the grievant also filed an EEO complaint over the Agency's failure to select her for one of the Attorney-Advisor positions in 1991, but "it was dismissed on procedural grounds because of her filing of the grievance." Award at 4.
2. The relevant provisions of the parties' collective bargaining agreement are set forth in the Appendix to this decision.
3. The selection action in this case took place in October of 1991, and the Agency informed the grievant that she had not been selected for any of the positions on November 7, 1991, prior to the November 21, 1991, effective date of the Civil Rights Act of 1991. The parties do not contend that the Civil Rights Act of 1991 applies to the resolution of this case. See Union's Post-Hearing Brief at 48 (citing Wards Cove). Moreover, the Civil Rights Act of 1991 was not intended to apply to conduct occurring before its effective date. See Landgraf v. USI Film Products, 114 S. Ct. 1483 (1994) and Rivers v. Roadway Express, 114 S. Ct. 1510 (1994). In these circumstances, we will not apply the Civil Rights Act of 1991 to this case.