Sunday, August 12, 2012

Award reinstating teacher accused of improper contact with students set aside as violative of public policy

The Pennsylvania Commonwealth Court has affirmed a lower court decision setting aside an arbitration award reinstating a teacher accused of violating school district policies concerning sexual harassment of students.  Bethel Park School District v. Bethel Park Federation of Teachers. Grievant had been accused of engaging in unwelcome contact with seventh grade female students, including holding their hands, and/or rubbing their backs and legs when he would assist them. The School District placed Grievant on an improvement plan prohibiting him from contacting students outside structured classroom settings. Grievant allegedly defied this prohibition by continuing to meet with students during lunch and by continuing to have physical contact with them. Grievant was notified by the District of its intention to discharge him from employment. He was advised of his right to a hearing before the Board of Directors or, in the alternative, his right to challenge the dismissal through the grievance/arbitration procedures. Grievant elected to file a grievance, and the Arbitrator sustained the grievance in part. The Arbitrator concluded that “persuasive evidence establishes that the Grievant is guilty of serious misconduct which would ordinarily warrant discharge… [and] so long as he persisted in his behavior, the Grievant was unfit to teach.” Nevertheless, he found that the District had violated significant due process rights in conducting its investigation and ordered the Grievant's reinstatement albeit without back pay. The District sought to set aside the award, and the lower court vacated the award. The Federation appealed.

 The appellate court found that the Arbitrator improperly relied on the due process procedure outlined in the District’s Unlawful Harassment Policy. The Court noted that the policy was not part of the CBA and “[a]s such, the Arbitrator clearly went outside the CBA in making his determination.” As a result, according to the Court, the Arbitrator’s award was not rationally derived from the CBA.

Separately, however, the Court also concluded that the award was properly vacated “on the basis that it violates the well-defined and established public policy of protecting students from sexual harassment during school hours, on school property.” While noting that the Arbitrator had not made an express ruling finding Grievant guilty of sexual harassment, the court determined “his findings leave no doubt that Grievant, an adult male in power over seventh grade female students, persisted in unwelcome inappropriate touching during the performance of academic work which made the seventh grade female students uncomfortable.” Because the Court concluded that the award violated public policy “as pronounced in Title IX of the Civil Rights Act, the Federal Civil Rights Act, the Pennsylvania Human Relations Act, as well as the District’s zero-tolerance sexual harassment policy” it affirmed the lower court’s decision vacating the award.

According to a report in the the Federation is reviewing whether to further appeal. Union weighs appeal of teacher's firing in Bethel Park. The report also identifies the arbitrator as Irwin Dean.

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