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Rose Tree Media School District v. Rose Tree Media Secretaries and Educational Support Personnel Association-ESPA

Commonwealth Court of Pennsylvania

March 13, 2017

Rose Tree Media School District
Rose Tree Media Secretaries and Educational Support Personnel Association-ESPA, PSEA-NEA, Appellant

          Argued: February 7, 2017




         Rose Tree Media Secretaries and Educational Support Personnel Association-ESPA, PSEA-NEA (Local Association) appeals from an order of the Court of Common Pleas of Delaware County (trial court), vacating an Arbitrator's Award (Award).[1] For the reasons discussed below, we affirm.

         I. BACKGROUND

         Following the discharge of David Hay (Grievant) by Rose Tree Media School District (School District), the Local Association filed a grievance pursuant to the parties' collective bargaining agreement, which led to arbitration. The Arbitrator made the following findings of fact, and we are bound to accept them on appeal.[2] Grievant worked as a "Support Staff II" employee at Penncrest High School, where he was assigned to assist an individual special education student (Student). Grievant's job responsibilities included accompanying Student to classes, monitoring him in the classroom, assisting him with assignments, and keeping him on task. Prior to the incidents giving rise to this case, Grievant had no record of discipline.

         Three incidents involving Student's adapted English teacher (Teacher) eventually led to Grievant's discharge. First, starting in November 2012, Grievant stopped bringing Student to his adapted English class. Instead, Grievant arrived to Teacher's classroom several minutes early, without Student, and stayed several minutes past the allotted class time, after Student had left. Teacher used the period before the English class to prepare and found Grievant's early arrival distracting. On January 2, 2013, Teacher sent an email to Jodie Strevig (Strevig), who was acting as Special Education Coordinator at that time. Teacher advised Strevig that Grievant was not accompanying Student to and from classes and that it was distracting her during her preparation. Strevig notified Assistant Principal William Dougherty (Dougherty), who told Strevig to tell Grievant to stay with his student. Strevig spoke with Grievant and warned that continued failure to accompany Student to and from class could lead to him being "written up" or losing his job. Strevig notified Teacher of her conversation with Grievant, and, for a short period of time, Grievant stopped arriving to Teacher's classroom early and leaving late.

         A few days later, Grievant renewed his behavior of failing to accompany Student. Teacher asked Grievant why he was not accompanying Student, and he responded that he was employing a technique called "fading, " where he would increase Student's independence by allowing him to complete certain tasks by himself. Teacher later checked Student's Individualized Education Program (IEP), which did not mention the use of the fading technique. Teacher wrote Strevig another email on January 11, 2013, informing Strevig that Grievant was again failing to accompany Student. She wrote that Grievant's conduct was "really getting annoying and starting to creep [her] out." (Reproduced Record (R.R.) at 23a.) Strevig spoke with Grievant a second time, again warning him that his conduct could lead to his dismissal. Grievant again apologized to Strevig.

         The very next day, however, Grievant again arrived to Teacher's classroom early, without Student. As a result, Teacher sent an email to Joshua Mattson (Mattson), the school psychologist and part of the School District's administration. She described Grievant's conduct to Mattson and included the January 2, 2013 email to Strevig. Mattson spoke with Grievant and explained that he was to remain with Student from class to class. Following the discussion between Mattson and Grievant, Grievant ceased arriving to Teacher's classroom early and staying late. Regarding Grievant's usage of the fading technique, the Arbitrator found that a change in the IEP would be a precondition to using fading. Regarding the unwelcome classroom visits, the Arbitrator concluded: "I acknowledge [the School District Superintendent]'s view that these actions also constituted harassment and improper conduct under the Public School Code [Act of March 10, 1949, P.L. 30, as amended, 24 P.S. §§ 1-101-27-2702], but I view 'neglect of duty' as the more compelling ground."

         The second incident concerning Grievant and Teacher the parties have coined the "jogging incident." While the Arbitrator determined the exact date was not critical, at some point during the 2012 to 2013 school year, Grievant drove past Teacher while she was jogging. As the vehicle passed her, Teacher observed a male driver honking the horn and waving to her. The following day, when Grievant asked why Teacher did not acknowledge him as she was jogging, she responded that she could not discern who the driver was. Months later, another teacher, Lindsay Groy (Groy), overheard Grievant describe the experience with several students. Groy described that she heard Grievant state and repeat, "[Teacher] looked at me like I was the biggest piece of scum." (R.R. at 34a.) Groy commented to Grievant that a woman might feel uncomfortable in such a situation, to which Grievant replied that she was not supposed to hear his story. Groy then described this interaction with Grievant to Teacher, who was confused as to why Grievant was sharing the story with students months after it had occurred.

         The third incident involving Teacher occurred after she instructed her class, including Student, to draw scenes from the book "Of Mice and Men, " such as the scene where Lennie strangles Curley's wife. Teacher noticed that two of the drawings submitted by Student-the two that were supposed to depict the strangulation of Curley's wife-appeared to be drawn by a different person. Moreover, instead of Curley's wife, the woman depicted in the picture had pigtails, was holding a lacrosse stick, and had "PC LAX" written on her sleeve. Teacher was a coach of the girl's lacrosse team and often wore her hair in pigtails.[3]Grievant asked Teacher if she recognized the woman that was being strangled in these drawings. She asked Grievant if the woman was a depiction of her, and Grievant answered affirmatively. Teacher became noticeably startled and disturbed, which prompted Grievant to say that he should not have done that. Teacher shared this interaction with Groy and confessed her discomfort. Notably, the Arbitrator conclusively found that the drawings were meant to depict Teacher.

         On the advice of Groy, Teacher brought the drawings to Mattson who described Teacher as "distressed, " "agitated, " and "upset." (R.R. at 27a.) Mattson brought the drawings to Penncrest Principal Rick Gregg (Gregg), who then brought the drawings to Dougherty and Human Resources Director Anne Callahan (Callahan). Dougherty and Callahan spoke with Teacher the following day, about all three incidents. Callahan described Teacher as "upset" and "frightened." (Id.)

         The next day, on May 22, 2013, Callahan and Dougherty met with Grievant and Patty Stokes (Stokes), a representative from the Local Association. At the meeting Callahan and Dougherty discussed with Grievant the three incidents involving Teacher. Grievant acknowledged that he drew the strangulation drawings. Grievant explained that he intended the drawings and sharing the jogging story with students to be funny and amusing rather than offensive. He also explained that his arriving to Teacher's class early and staying late was his attempt at using the fading technique. At the conclusion of the meeting, Callahan informed Grievant that he was suspended without pay pending an investigation of his conduct. In June, Callahan sent a memorandum to Grievant stating, "you have a reasonable assurance that your position will be available to you at the start of the 2013-2014 school year." (R.R. at 28a.) The Arbitrator additionally noted, "the record reveals that such letters are issued automatically to all ten-month employees." (R.R. at 39a.)

         Grievant grieved his suspension, and on June 20, 2013, School District Superintendent James Wigo (Wigo) conducted a hearing, which the parties agreed would constitute a Loudermill hearing.[4] After the hearing, on July 3, 2013, Wigo advised Grievant in writing that he would recommend to the School Board that the Board terminate Grievant's employment. Grievant then contested Wigo's determination and a Committee of the School Board held a hearing on September 23, 2013. On October 24, 2013, the School Board ...

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