Clarion County Career Ctr. v. Clarion County Career Ctr. Ed. Assoc. ( 2022 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Clarion County Career Center :
:
v. :
:
Clarion County Career Center :
Education Association, : No. 847 C.D. 2021
Appellant : Submitted: August 5, 2022
BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE LORI A. DUMAS, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE COVEY FILED: December 12, 2022
The Clarion County Career Center Education Association
(Association) appeals from the Clarion County Common Pleas Court’s (trial court)
June 23, 2021 order granting the Clarion County Career Center’s (Career Center)
Petition to Vacate Grievance Arbitration Award (Petition to Vacate). The sole issue
before this Court is whether the trial court properly vacated an arbitration award as
violating public policy where the arbitration award modified the Career Center’s
employment termination of teacher Brent Johnson (Grievant) to a 180-day
suspension. After review, this Court reverses.
The Career Center and the Association were parties to a collective
bargaining agreement (CBA) for the relevant period July 1, 2016 to June 30, 2020.
The CBA included a grievance procedure which has a provision for binding
arbitration as the final step. See Reproduced Record (R.R.) at 9a. The CBA provides
that “[n]o employee in the bargaining unit shall be discharged, disciplined, reduced
in rank or compensation without just cause.” R.R. at 14a. However, the CBA does
not define just cause.
Grievant worked as an automotive technology instructor at the Career
Center for approximately 17 years, starting in 1999. The Career Center’s supervisors
consistently gave him satisfactory annual evaluations. However, Grievant had been
previously suspended in 2016 for ten days after the Career Center discovered that
Grievant had allowed a former student to attend a student field trip to Pittsburgh
without the required volunteer clearances.
In October 2017, following a parent/student complaint that Grievant
was displaying inappropriate behavior towards a student,1 the Career Center
conducted an investigation into Grievant’s classroom behavior. On October 5, 2017,
the Career Center’s Superintendent of Record (Superintendent) conducted a meeting
with Grievant, the Career Center’s Administrative Director (Administrative
Director), and the Association’s president. The administrators asked Grievant
questions regarding the student’s allegations, which included Grievant’s
inappropriate comments directed at a female student, getting too close to the student,
and flirting with and touching his classroom aide (Aide), in the classroom.
Following the meeting, the Career Center placed Grievant on administrative leave
with pay, while it continued to investigate the complaint.
On October 18, 2017, the Career Center’s Special Education
Coordinator and the Administrative Director met with three students who believed
that Grievant was targeting them because of their intellectual abilities. The students
related that Grievant told them that they were “stupid” or “dumb” and that Grievant
did not provide them the same opportunities as the regular education students. R.R.
at 36a.
1
The student was subsequently transferred from Grievant’s class because of her discomfort
with Grievant’s behavior.
2
On October 19, 2017, the Superintendent sent Grievant a letter
scheduling a second meeting on October 24, 2017, and advising Grievant that the
meeting’s purpose was to continue to investigate the previous allegations, and to
discuss new allegations involving inappropriate comments he had directed at
students. Following that meeting, on November 13, 2017, the Superintendent sent
Grievant a letter setting forth the charges against him and requesting his attendance
at a Loudermill2 hearing on November 16, 2017. The letter informed Grievant that
the meeting would address the following issues:
• Having inappropriate contact and communications with
students, including comments on appearance, flirting,
staring and/or leering, inquiry [sic] into whereabouts
outside of school hours, and touching an arm and/or
shoulders and touching the hand of a student.
• Said inappropriate contact and communications resulting
in student becoming uncomfortable in the classroom and
hallway.
• Failing to ensure that students under your charge with
[Individualized Education Plans (]IEPs[)] and/or 504
Plans[3] receive appropriate assistance in your classroom.
• Failing to undertake the proper procedure to ensure that
when a student was assigned to you that you were fully
aware of his/her educational needs, such as a Section 504
Plan or IEP.
• Providing opportunity [sic] to students in a
disproportionate and biased manner[.]
• Providing false or misleading information to [Career
Center] Representatives[.]
2
Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532 (1985).
3
Section 504 of the Federal Rehabilitation Act of 1973, as amended, 29 U.S.C. § 794(1985), covers qualified students with disabilities who attend schools, like here, receiving federal
financial assistance.
3
• Telling students they are “too dumb” for automotive
curriculum[.]
• Telling students they “should be in culinary” rather than
Automotive Shop[.]
• Repeatedly leaving students unattended in the
[Automotive] Shop area[.]
• Repeatedly neglecting your duties and students[.]
• Utilizing the [Automotive] Shop for your personal
vehicles in violation of previous directive[.]
• Violating a directive pertaining to maintaining
appropriate relationships in your professional capacity[.]
• Not adhering to General Motors procedures regarding
donated vehicles and subsequent disposal of same.
• Using your time and student time to work on a vehicle
that you were restoring[.]
• Providing misleading information to Administrative
Director regarding donated vehicles[.]
• Having students wash your vehicle and the vehicle of
your classroom assistant.
• Bringing in your go-cart trailer and using students to
clean the same.
R.R. at 37a-38a.
The letter further provided:
You were previously given a verbal warning as it relates
to your interactions with a classroom aide and maintaining
professionalism in the workplace in March of this year
(2017) when it was alleged that you were holding hands,
feeding each other, touching each other on laps, applying
lotion to each other, and whispering in each other’s ears.
Please be aware that we plan to discuss all of the above
issues. Inasmuch as this meeting could result in a
recommendation for disciplinary action against you, up to
4
and including dismissal, you are entitled to have an
Association representative with you at the meeting[.]
R.R. at 38a.
At the Loudermill hearing, Grievant denied the allegations. On
December 4, 2017, the Career Center Board President issued a Statement of Charges
and Notice of Hearing for December 19, 2017 (Statement of Charges). The
Statement of Charges enumerated 11 separate charges – some with sub-charges.4 On
December 7, 2017, the Career Center notified Grievant that his suspension with pay
was being converted to a suspension without pay. Grievant elected to waive the
hearing before the Career Center’s Board, and pursued arbitration. On December
19, 2017, the Career Center terminated Grievant’s employment for the reasons set
forth in the Statement of Charges.
The arbitrator held hearings on September 26 and 27, and December 13
and 14, 2018. On February 18, 2020, the arbitrator issued his Opinion and Award
(Award), wherein he sustained charges one, three, six, eight, nine and eleven.
In Charge One, the Career Center alleged that Grievant failed to ensure
that his students with IEPs and/or 504 Plans receive appropriate assistance. With
respect thereto, the arbitrator concluded:
Having reviewed the record, I must conclude that the
Career Center has supported this [C]harge with evidence
that [Grievant] did some things that were not optimum
for seeing that students under his charge with IEPs
and/or 504 Plans receive appropriate assistance in his
classroom. It is important to understand the context of the
program. It seems as if [Grievant] may have thought that
he was doing the best he could with a class of 20 students.
He often had to tell students to wait until he finished
4
The Notice of Hearing notified Grievant that: “You are being charged by the
[a]dministration with persistent negligence, willful neglect of duties, and persistent and willful
violations of or failure to comply with the School Laws of the Commonwealth, including official
directives and established policies and[/]or directives of the Career Center.” R.R. at 39a.
5
assisting other students. To help every student at the same
time is difficult, so he would float from student to student.
He did suggest to students to do research online, but that
was necessitated by the number of students he had to
teach. However, it was not appropriate to tell IEP students
with reading comprehension issues to look up answers on
Google or the internet. This is not an appropriate approach
for an IEP student.
The Career Center had just cause to discipline [Grievant]
for the allegations in this charge, but the Association
questions whether terminating him meets test [seven] of
the just cause analysis: Was the degree of imposed
discipline reasonably related to the seriousness of the
offense and the [Grievant’s] work record? The Career
Center’s termination of [Grievant] is the highest level of
discipline. [Grievant] has had a 17[-]year career with
good evaluations. Former students and a colleague
testified to his teaching effectiveness. He has had one
serious discipline against him. I must conclude that
terminating him for this charge is excessive.
R.R. at 56a-57a (emphasis added). Notably, the arbitrator did not find that Grievant
discriminated against the students on the basis of a disability.
In Charge Three, the Career Center averred that Grievant violated
Career Center policy by not maintaining appropriate teacher-student relationships.
Regarding Charge Three, the arbitrator determined the following with respect to the
multiple allegations:
• A student credibly testified to the following: That every
day, as she was leaving her welding class, Grievant
appeared to perfectly time a walk towards her. Some days
she wore her welding jacket, which partially covered her
posterior. However, on most days she just carried the
jacket, and on those days her waist and her posterior could
be seen. Grievant made comments toward her about how
“those jeans look good on you today” while looking at her
posterior. R.R. at 62a. Some days he would say that her
welding coat looked a little long, while looking at her
posterior. Further, while she would be walking down the
hall from her welding class, Grievant would give her a
high five which was actually a low five where the
6
interaction took place against the student’s leg. He would
grab her hand and pull her closer to him, which she did not
like. She felt very uncomfortable but she did it anyway.
• With respect to Grievant’s comments regarding another
student’s jeans, the arbitrator concluded, “that [Grievant]
made at least one remark about the way that the jeans
looked on [the student,] . . . [and] the remark crossed the
boundary of acceptable teacher[-]student interaction.”
R.R. at 65a.
• Relating to Grievant’s alleged comment that a female
student needed to “dress to impress” him, the arbitrator
concluded that the Career Center did not prove that part of
the charge. R.R. at 66a.
• Regarding Grievant’s alleged physical closeness to
students, the arbitrator concluded that the Career Center
did not prove that part of the charge.
• With respect to asking a student where she rode her dirt
bike, the arbitrator concluded that Grievant did not
intentionally target the student by asking her where she
rode her dirt bike “but that the way he asked it could give
the student that impression[,]” and concluded that such
was negligent conduct on Grievant’s part. R.R. at 68a.
Thus, as to Charge Three, the arbitrator concluded:
[A]fter reviewing all of the allegations in Charge Three,
the Career Center has proven that [Grievant] violated
[Career Center Policy] by not maintaining appropriate
teacher-student relationships. He acted inappropriately
with [a student] in their several hallway encounters. He
acted inappropriately with [another student] in
commenting on the way the new uniform pants fit her. He
singled her out for questions on where she ro[de] her dirt
bike. However, the Career Center’s decision’s penalty of
termination is excessive. It should be reduced to a [30-
]day suspension.
R.R. at 69a. Notably, although the arbitrator found that Grievant acted
inappropriately, the arbitrator did not find that Grievant sexually harassed any
student.
7
In Charge Six, the Career Center claimed that Grievant violated a prior
directive pertaining to maintaining an appropriate relationship in the classroom with
Aide. With respect thereto, the arbitrator held that the Career Center proved by
substantial evidence that Grievant violated the prior directive to maintain an
appropriate relationship with Aide.
The prior Administrative Director . . . had issued
[Grievant] a verbal warning about such behavior, but the
administration never placed a record of the warning in
[Grievant’s] personnel file. Since the Career Center has
not even placed the prior verbal warning in the personnel
file, it is difficult for the Career Center to now deem this
conduct to be sufficient to serve as the basis for
termination, the highest level of discipline. The
termination should be reduced to a [30-]day suspension.
R.R. at 75a-76a.
In Charge Eight, the Career Center alleged that Grievant told students
they were either too dumb for automotive curriculum or not smart enough to be in
automotive shop. Relating to Charge Eight, the arbitrator found that the Career
Center supported the charge with substantial evidence. Grievant, “as an experienced
professional educator, should know that such name calling is not appropriate. His
actions violated [Career Center] policy. However, the discipline of termination is
excessive and should be reduced to a [30-]day suspension.” R.R. at 78a.
In Charge Nine, the Career Center averred that Grievant told students
they should be in culinary rather than Automotive Shop. With respect to Charge
Nine, the arbitrator found:
[T]he Career Center has proven that [Grievant] made the
alleged statements. The students testified credibly that he
made the statements to them directly. It appears that he
made the statements out of frustration with the students’
behavior and conduct. The record also shows that
[Grievant] expressed some frustration with the IEP
students, telling a fellow teacher that one of the students
8
was “a pain in the Asperger[’]s.” Giving [Grievant’s]
testimony some weight, this conduct is still inappropriate.
An appropriate time and place to discuss other courses of
study with students would be if the student asked for
advice or if the discussion took place with a guidance
counselor or other student support person[] present.
However, [Grievant’s] conduct does not rise to the level
of misconduct that supports the termination of
[Grievant’s] employment. Rather, the more appropriate
discipline would be a [30-]day suspension.
R.R. at 78a-79a.
In Charge Eleven, the Career Center claimed that Grievant repeatedly
left students unattended in the Automotive Shop area. With respect thereto, the
arbitrator found that the testimony established that Grievant had left his class
unattended; however, the arbitrator opined that a 30-day suspension was the proper
discipline.
In his Award, the arbitrator stated:
The Association’s grievance is partially sustained. As set
forth above, the Career Center presented substantial
evidence to prove six (6) of the charges that [Grievant]
engaged in misconduct and deserves to be disciplined.
However, the Career Center did not have just cause to
terminate his employment. The penalty of termination is
excessive, based on [Grievant’s] 17 years with the Career
Center, his consistent satisfactory annual evaluations and
his disciplinary record with only one serious incident of
misconduct in 17 years.
The termination of his employment should be converted to
a 180[-]day[] unpaid suspension without benefits based on
the findings that the Career Center proved six (6) of the
charges brought against him. The suspension should be
deemed to begin from the date the Career Center
suspended him without pay.
The Career Center should immediately reinstate
[Grievant] at the rate of pay he was receiving at the date
of his termination. It should make him whole for the
9
wages and benefits lost from the end of his 180[-]day[]
suspension to the date of reinstatement. The back pay and
benefits should be offset by any unemployment
compensation, and wages and benefits from other
employment, he received from the date of his suspension
without pay to reinstatement.
R.R. at 83a. The Career Center appealed from the arbitrator’s Award to the trial
court.
Finding the instant matter analogous to the circumstances in Slippery
Rock University of Pennsylvania, Pennsylvania State System of Higher Education v.
Association of Pennsylvania State College & University Faculty (Slippery Rock I),
71 A.3d 353 (Pa. Cmwlth. 2013), the trial court concluded that Grievant’s
conduct visibly implicates and violates . . . public policies
[prohibiting sexual harassment and discrimination against
individuals with disabilities]. “The [A]ward in this case
poses a substantial risk of undermining this public policy
and also prevents the [Career Center] from properly
implementing its policy prohibiting such behavior . . . []”
by allowing [Grievant] to remain employed which has
harmed – and if he is reinstated likely will continue to
harm – the Career Center student[s’] welfare by exposing
them to discrimination and harassment. [Slippery Rock I,]
71 A.3d at 365.
R.R. at 410a. Accordingly, the trial court vacated the Award. The Association
appealed to this Court.5
5
In reviewing an arbitration award, this Court applies the highly
deferential two-prong “essence test.” Chambersburg Area Sch[.]
Dist[.] v. Chambersburg Educ[.] Ass[’n] (Pro[.]), 120 A.3d 407, 412
(Pa. Cmwlth. 2015). First, we decide whether the issue is
encompassed by the collective bargaining agreement. Second, if the
arbitrator’s interpretation can rationally be derived from the
collective bargaining agreement, it will be sustained.
Slippery Rock Univ. of Pa. v. Ass’n of Pa. State Coll. & Univ. Faculty (Slippery Rock II), 241 A.3d
1278, 1284 (Pa. Cmwlth. 2020). The parties do not contest that the arbitration award satisfies the
essence test. The Career Center argues herein that the public policy exception, discussed infra,
applies.
10
The Association contends that the trial court erred when it vacated the
Award on public policy grounds. Initially, “the arbitration process allows arbitrators
to modify disciplinary penalties and fashion appropriate awards based on the specific
facts of a given case.” Cnty. of Allegheny v. Allegheny Cnty. Prison Emps. Indep.
Union, 244 A.3d 873, 882 (Pa. Cmwlth. 2020). “[A]rbitrators are the exclusive fact-
finder[s], [and] their judgment is afforded great deference.”6 York Cnty. Area
Vocational-Technical Educ. Ass’n v. York Cnty. Area Vocational-Technical Sch.,
570 A.2d 105, 107 (Pa. Cmwlth. 1990). The sole issue for this Court’s consideration
is whether the trial court properly concluded that the Award violated public policy.
The burden of establishing a violation of public policy
rests on the party asserting the public policy exception.
Westmoreland Intermediate Unit # 7 v. Westmoreland
Intermediate Unit # 7 Classroom Assistants Educ[.]
Support Pers[.] Ass[’n], PSEA/NEA, . . . 939 A.2d 855,
864 ([Pa.] 2007).
The Pennsylvania Supreme Court has explained the public
policy exception is a “narrow exception to a narrow
exception,” i.e., the essence test. Millcreek [Twp. Sch.
Dist. v. Millcreek Twp. Educ. Support Pers. Ass’n] . . . ,
210 A.3d [993,] 1011 [(Pa. 2019)]. [Our] Supreme Court
has established a three-part test for applying the public
policy exception:
First, a reviewing court must identify
precisely what remedy the arbitrator
6
The Pennsylvania Supreme Court has held that
[b]y failing to agree upon and incorporate a definition of just cause
into the collective bargaining agreement, and by casting the
arbitrator into the role of resolving disputes arising under the
collective bargaining agreement, . . . it is clear that the parties
intended for the arbitrator to have the authority to interpret the terms
of the agreement, including the undefined term “just cause” and to
determine whether there was just cause for discharge in this
particular case.
Office of the AG v. Council 13, AFSCME, 844 A.2d 1217, 1224 (Pa. 2004).
11
imposed. . . . Next, the court must inquire
into whether that remedy implicates a public
policy that is “well-defined, dominant, and
ascertained by reference to the laws and legal
precedents and not from general
considerations of supposed public
interests . . . .” Finally, the reviewing court
must determine if the arbitrator’s award
compels the employer to violate the
implicated policy, given the particular
circumstances and the factual findings of the
arbitrator.
Id. (citations omitted). Notably, “the arbitrator’s
interpretation of the contract controls during this entire
analysis . . . and should be upheld absent a clear violation
of public policy.” Id.Slippery Rock Univ. of Pa. v. Ass’n of Pa. State Coll. & Univ. Faculty (Slippery Rock
II), 241 A.3d 1278, 1284-85 (Pa. Cmwlth. 2020) (emphasis added).
[I]n resolving the issue of whether an arbitrator’s award
violates a well-defined, dominant public policy, there is
usually no reason for a reviewing court to reexamine the
transcript of the arbitrator’s hearing and reevaluate the
facts. Rather, only the award itself, and the legal authority
supporting the implication of the public policy, are
relevant to a public policy exception inquiry. To hold
otherwise would result in routine review of the entire
factual record every time a public employer raises the
public policy exception.
Rose Tree Media Secretaries & Educ. Support Pers. Ass’n v. Rose Tree Media Sch.
Dist., 136 A.3d 1069, 1078-79 (Pa. Cmwlth. 2016).
[T]his Court has explained:
[C]ourts are to give arbitration awards
deference and are not to second-guess an
arbitrator’s findings of fact or interpretations.
But these awards are not entitled to a level of
devotion that makes a mockery of the
dominant public policy . . . .
12
Neshaminy Sch. Dist. v. Neshaminy Fed’n of Tchrs., 171
A.3d 334, 340 (Pa. Cmwlth. 2017) (internal citations and
quotation marks omitted). In evaluating whether an
arbitration award violates a dominant public policy,
reviewing courts consider “both aggravating and
mitigating factors in determining whether an award
poses an unacceptable risk that a clear public policy
will be undermined if the award is implemented.” Id.(internal quotation marks and brackets omitted); see also
Pa. State Sys. of Higher Educ., Lock Haven Univ. v. Ass’n
of Pa. State Coll. & Univ. Faculties, 193 A.3d 486, 500
(Pa. Cmwlth. 2018) (same). Courts have found arbitration
awards properly vacated pursuant to the public policy
exception to the essence test in cases where, despite
proven explicit and continuous conduct amounting to
sexual harassment in contravention of Pennsylvania’s
public policy against such harassment, arbitration
remedies imposed very little punishment. See
Neshaminy Sch. Dist., 171 A.3d at 343 (20-day suspension
with back pay violated public policy against sexual
harassment); see also Phila. Hous. Auth. [v. Am. Fed’n of
State, Cnty. & Mun. Emps., Dist. Council 33, Local 934,]
52 A.3d [1117,] 1128 [(Pa. 2012)] (award granting
immediate reinstatement with back pay in the face of
“egregious” conduct amounting to sexual harassment
makes a mockery of public policy against sexual
harassment).
Cnty. of Allegheny, 244 A.3d at 881 (bold and underline emphasis added). Similarly,
in Slippery Rock I, this Court reversed an arbitration award that reinstated a tenured
university professor who had made inappropriate sexual remarks and comments to
students. In the award, the arbitrator reinstated the professor to his prior position
with no loss of benefits and back pay and also required the university to purge any
reference to the professor’s improper conduct from its files.
Here, with respect to the first part of the Millcreek test, the arbitrator
imposed numerous 30-day unpaid suspensions for Grievant’s misconduct, resulting
in a cumulative 180-day unpaid suspension. Regarding the second part of the
Millcreek test, despite that the arbitrator did not find that Grievant’s conduct
13
constituted sexual harassment or unlawful discrimination, based on the arbitrator’s
factual findings with respect to charges Three, Eight and Nine, that Grievant engaged
in inappropriate conduct with students, it is possible that both the Award and
Grievant’s inappropriate conduct implicated dominant public policies against sexual
harassment and discrimination.7
However, even assuming arguendo that public policies against sexual
harassment and discrimination were implicated, this Court must apply the final
Millcreek test factor – whether the arbitrator’s award compels the employer to
violate the implicated public policy, given the particular circumstances and the
arbitrator’s factual findings. This Court acknowledges that a 30-day unpaid
suspension for upholding Charge Three or Six, alone, would appear to violate public
policy. However, here, each 30-day suspension is a part of an aggregate award
imposing a 180-day suspension without pay or benefits. Unlike in the 20-day
suspension with back pay in Neshaminy School District, and the absence of any
sanctions in Slippery Rock I and Philadelphia Housing Authority, here, the aggregate
7
This Court emphasizes that, as described by the Pennsylvania Supreme Court, there is a
well-defined and dominant public policy against sexual harassment
in the workplace, a public policy which is grounded in both federal
and state law against sex discrimination in employment, including
Title VII, the regulations of the [Equal Employment Opportunity
Commission], and this Commonwealth’s own [Pennsylvania
Human Relations Act, Act of October 27, 1955, P.L. 744, as
amended, 43 P.S. §§ 951-963]. See generally Meritor Sav. Bank v.
Vinson, 477 U.S. 57, 64-67 . . . (1986) (hostile environment sexual
harassment is illegal sex discrimination and actionable under federal
law); 43 P.S. § 952(b) (“It is hereby declared to be the public policy
of this Commonwealth to foster the employment of all individuals
in accordance with their fullest capacities regardless of their . . . sex,
. . . and to safeguard their right to . . . hold employment without such
discrimination . . .); Pa. Const. [a]rt. I, § 28 (“Equality of rights
under the law shall not be denied or abridged in the Commonwealth
of Pennsylvania because of the sex of the individual.”).
Phila. Hous. Auth., 52 A.3d at 1123.
14
penalty imposed is a 180-day suspension without pay or benefits, which the
Association emphasizes is the equivalent of one full school year. This Court may
not infer that public policy demands only the most severe penalty under these
circumstances where an arbitrator has imposed substantial discipline.8 Accordingly,
the trial court erred when it vacated the Award as violative of public policy.
For all of the above reasons, the trial court’s order is reversed.
_________________________________
ANNE E. COVEY, Judge
Judge Wallace did not participate in the decision in this matter.
8
Although this Court may not agree that the Award adequately penalized Grievant for his
conduct, a court must defer to an arbitrator’s award if the award does not violate public policy.
See Neshaminy Sch. Dist., 171 A.3d at 340.
15
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Clarion County Career Center :
:
v. :
:
Clarion County Career Center :
Education Association, : No. 847 C.D. 2021
Appellant :
ORDER
AND NOW, this 12th day of December, 2022, the Clarion County
Common Pleas Court’s June 23, 2021 order is reversed.
_________________________________
ANNE E. COVEY, Judge