Argued: April 15, 2013.
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge, HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge.
This matter is before the Court on remand from the Pennsylvania Supreme Court for reconsideration on the basis of the Supreme Court's decision in Philadelphia Housing Authority v. American Federation of State, County and Municipal Employees, ___Pa. ___, 52 A.3d 1117 (2012).
Sherie Vrable (Grievant) was employed at Westmoreland Intermediate Unit #7 (Employer) as an elementary school classroom assistant. She was responsible for working on a one-to-one basis or in small groups with eleven emotionally disturbed children. She also assisted in general administrative duties, and escorted children to the restroom, lunch, recess and to and from the buses.
On March 18, 2002, Grievant was found unconscious in the school's restroom as the result of a drug overdose. The evidence established that Grievant was wearing a 100 mcg (microgram) Fentanyl patch on her back while she was performing her duties as a classroom assistant in grades three through five. Grievant obtained the Fentanyl patch from a friend. It was not prescribed to her by a physician. The evidence established that Grievant wore the patch because it was "a temptation." Monongahela Valley Hospital Emergency Room Records, March 20, 2002, at 1; Reproduced Record (R.R.) at 90a.
By letter dated September 17, 2002, Employer notified Grievant that it intended to terminate her employment due to her "possession and use of a controlled substance, not prescribed to [her], in the workplace during working hours at the West Newton Elementary School." Letter to Sherie L. Vrable, from Westmoreland Intermediate Unit, September 17, 2002, at 1.
Grievant, through Westmoreland Intermediate Unit #7 Classroom Assistants Educational Support Personnel Association (Union), challenged the termination through grievance arbitration.
The Arbitrator sustained the grievance and found Employer lacked "just cause" to terminate Grievant because her conduct did not rise to the level of "immorality" under Section 1122(a) of the Public School Code of 1949:
The only valid causes for termination of a contract heretofore or hereafter entered into with a professional employe shall be immorality, incompetency, unsatisfactory teaching performance, … intemperance, cruelty, persistent negligence in the performance of duties, willful neglect of duties, physical or mental disability.…" (emphasis added).
The Arbitrator's conclusion was based on the finding that Grievant had an unblemished 23-year tenure with the Intermediate Unit. He concluded that this single error of judgment did not amount to such a grievous offense that it would offend the morals of the community. Recognizing the gravity of Grievant's conduct, however, the Arbitrator imposed certain conditions involving rehabilitation that Grievant was required to meet in order to be reinstated. Grievant had to participate in a drug and alcohol treatment program, abstain from mood altering drugs, or chemical substances while on duty, submit to drug/alcohol screenings, and participate in counseling and a treatment program.
The trial court vacated the Arbitrator's award and reinstated Grievant's discharge. It determined that the Arbitrator's award fell within the "core functions" exception to the essence test because Grievant's use of controlled substances while caring for children directly affected Employer's ability to perform its function of providing a safe environment for its students. Trial Court Opinion, August 3, 2004, at 10. The Union appealed.
This Court upheld the trial court's application of the "core functions" test and concluded that Employer satisfied the elements necessary to establish the offense of immorality as defined in the School Code. The Supreme Court granted the Union's petition for allowance of appeal to review whether the "core functions" exception was inconsistent with the essence test. Concluding that the "core functions" exception was "insufficiently ...