[Federal Register: April 6, 2001 (Volume 66, Number 67)]
[Notices]
[Page 18234-18235]
>From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr06ap01-35]
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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: Notice is hereby given that on March 31, 2000, an arbitration
panel rendered a decision in the matter of Ken Haney v. New Mexico
Commission for the Blind (Docket No. R-S/99-3). This panel was convened
by the U.S. Department of Education pursuant to 20 U.S.C. 107d-1(b)
upon receipt of a complaint filed by petitioner, Ken Haney.
FOR FURTHER INFORMATION: A copy of the full text of the arbitration
panel decision may be obtained from George F. Arsnow, U.S. Department
of Education, 400 Maryland Avenue, SW., room 3230, Mary E. Switzer
Building, Washington, DC 20202-2738. Telephone: (202) 205-9317. If you
use a telecommunications device for the deaf (TDD), you may call the
TDD number at (202) 205-8298.
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.
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:
www.ed.gov/legislation/FedRegister.
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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.access.gpo.gov/nara/index.html.
SUPPLEMENTARY INFORMATION: Pursuant to the Randolph-Sheppard Act (20
U.S.C. 107d-2(c)) (the Act), 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. Ken
Haney, a licensed blind vendor, from the Business Enterprise Program of
the New Mexico Commission for the Blind, the State licensing agency
(SLA).
A summary of the facts is as follows: Until November 1995, the
complainant managed and operated a cafeteria at the Levi-Strauss Plant
in Roswell, New Mexico, under the SLA's Randolph-Sheppard Vending
Facility Program. On November 1, 1995, a representative of the SLA met
with the complainant to discuss with him the lack of profitability of
the cafeteria and other issues regarding performance. Shortly
thereafter, Mr. Haney requested and was granted by the SLA a 6-month
leave of absence due to stress and health issues. During this time,
complainant's vending license was terminated on November 7, 1995.
On August 16, 1996, complainant requested a full evidentiary
hearing on his license termination. Mr. Haney alleges that his delay in
requesting a hearing was due to his continuing health problems.
Complainant's request for a hearing concerning his termination from
management at the Levi-Strauss cafeteria was denied on September 17,
1996. A request for reconsideration was also denied on November 14,
1996. The SLA alleges that there were no mental or physical
circumstances that prohibited Mr. Haney from requesting a hearing
within the 15-day time period pursuant to the SLA's rules and
[[Page 18235]]
regulations for filing grievances. It is this decision that complainant
sought to have reviewed by a Federal arbitration panel. An arbitration
hearing on this matter was held on February 2 and 3, 2000.
Arbitration Panel Decision
The central issue before the arbitration panel was whether the
actions taken by the New Mexico Commission for the Blind in denying Mr.
Haney a full evidentiary hearing were in violation of the due process
requirements under the Act (20 U.S.C. 107d-1(a)), the implementing
regulations (34 CFR part 395), and applicable State rules and
regulations. The panel ruled that complainant was essentially
terminated for poor performance in the operation of the cafeteria, but
waited for over 8 months before requesting an administrative review or
a full evidentiary hearing to contest the termination before the New
Mexico Commission for the Blind.
The SLA denied complainant's request for hearing because he failed
to ask for a hearing within the 15-day time limit provided under the
SLA's rules and regulations.
Based upon the evidence presented, the panel determined that, at
all times, the complainant was knowledgeable about the time limits.
Further, according to the panel, while he experienced some medical
problems after his termination, there was no evidence that he was
incapable of understanding or complying with the time limits.
Therefore, the panel affirmed the New Mexico Commission for the Blind's
denial of the complainant's request for hearing.
The views and opinions expressed by the panel do not necessarily
represent the views and opinions of the U.S. Department of Education.
Dated: April 3, 2001.
Andrew J. Pepin,
Executive Administrator for Special Education and Rehabilitative
Services.
[FR Doc. 01-8556 Filed 4-5-01; 8:45 am]
BILLING CODE 4000-01-P