Argued: May 3, 2017
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge,
HONORABLE RENÉE COHN JUBELIRER, Judge, HONORABLE P.
KEVIN BROBSON, Judge, HONORABLE PATRICIA A. McCULLOUGH,
Judge, HONORABLE ANNE E. COVEY, Judge, HONORABLE JULIA K.
HEARTHWAY, Judge,  HONORABLE JOSEPH M. COSGROVE, Judge.
RENÉE COHN JUBELIRER, Judge.
this Court is the appeal of the Neshaminy Federation of
Teachers (Union) from an Order of the Court of Common Pleas
of Bucks County (common pleas) vacating the grievance
arbitration award (Award) that reinstated Jared Katz (Katz)
to his position as a ninth grade teacher, imposed upon him a
20-day suspension without pay, and authorized the Neshaminy
School District (District) to require Katz to attend
reasonable sexual harassment training. On appeal, Union
argues that common pleas erred in vacating the Award based on
the court's conclusion that the Award violated the
dominant public policy against sexual harassment. After
reviewing the circumstances of this case and the
arbitrator's factual findings, we discern no error in
this conclusion and, therefore, affirm.
and District were parties to a Collective Bargaining
Agreement (CBA) with a term that ran from July 1, 2008,
through June 30, 2015. Article IV, Section 4.2 of the CBA
provided, in relevant part, that an employee may not be
dismissed without just cause. (R.R. at 11a.) The CBA
contained a grievance and arbitration procedure that provided
for final and binding arbitration. District implemented
several policies that concerned discipline. Policy 327
requires the application of progressive discipline with an
exception for a "singular major violation."
(Id. at 338a.) Policies 347 and 348 address
"Discrimination and Harassment" and "Sexual
Harassment, " respectively. (Id. at 332a-37a.)
has worked for the District for approximately 10 years and
has served as an advocate for Union. In a Statement of
Charges and Notice of Hearing, District notified Katz that
its Superintendent was recommending his dismissal for
"creat[ing] a hostile work environment for [his] fellow
teachers" and "making lewd and suggestive
statements to students." (Id. at 66a-67a.)
Following a meeting of District's School Board,
Katz's employment with the District was terminated by
letter dated April 9, 2014. A grievance was filed pursuant to
the CBA's grievance and arbitration procedures.
Arbitration hearings were held on December 3, 2014, December
9, 2014, and February 26, 2015, before arbitrator Ralph H.
Colflesh, Jr., Esq. (Arbitrator).
May 25, 2015 decision, Arbitrator addressed, relevant here,
Katz's behavior toward his co-teacher (Co-teacher).
Co-teacher testified that Katz directed sarcastic and
sexually explicit comments toward her "all day, every
day, " which made her uncomfortable. (Hr'g Tr. at
116-17, 122, R.R. at 100a, 102a.) In particular, Co-teacher
recalled when Katz: "invited [her] to sit on his lap in
lieu of a chair"; "told her it was taking all of
his self-control not to kiss her"; and responded
"[s]o, I shouldn't slap your a[**]" when
Co-teacher specifically asked him to stop his behavior
"because their 9th grade students were starting to
comment about a possible relationship between the two."
(Award at 23.) Co-teacher characterized Katz's behavior
as being "so continuous that she . . . consider[ed his
comments] as white noise or mere background to her work
environment." (Id.) Co-teacher explained that
she "felt helpless and did not complain because she was
new on the job and had to rely on  Katz for subject matter
content for which she was unfamiliar" and, therefore,
had "to laugh off his commentary" because she
"wanted a job." (Hr'g Tr. at 127, R.R. at 103a;
Award at 23.)
found Co-teacher's "testimony as compelling,
sincere, and credible as it was anguished." (Award at
23.) He concluded Katz's conduct violated Policy 348,
which was necessarily a violation of Policy 347, and Section
235.11(3) of Pennsylvania's Code of Professional Practice
and Conduct for Educators (Professional Conduct Code), 22 Pa.
Code § 235.11(3) (prohibiting a professional educator
from "[s]exually harass[ing] a fellow employe").
(Award at 20, 23-25.) Arbitrator further found that
Katz's continuous behavior had a deleterious effect on
Co-teacher and "created a working environment which she
reasonably found harassing, hostile, and offensive."
(Id. at 24.) For these reasons, Arbitrator denied
the grievance in part, finding that just cause existed to
suspend Katz for 20 days without pay for acts of harassment
against Co-teacher. (Id. at 28.)
regard to the charge related to suggestive statements made to
students, more specifically that he asked them to demonstrate
"twerking, " Arbitrator found the evidence
contradictory. (Id. at 24.) Therefore, Arbitrator
found that punishment was not merited and sustained the
grievance. As to allegations made by District that Katz lied
during the investigation of the sexual harassment charges,
Arbitrator found that Katz did not have a genuine opportunity
to answer the questions posed to him accurately. Arbitrator
was not convinced Katz knowingly misled his interrogator and,
therefore, did not find just cause for discipline in that
on these determinations, Arbitrator issued the Award, which
reinstated Katz with back pay, minus the 20-day suspension
and unemployment compensation received, if any. Upon
Katz's reinstatement, the Award authorized District to
require him to undergo reasonable sexual harassment training.
District filed a petition to vacate the Award with common
pleas, which common pleas granted on February 23, 2016. This
opinion pursuant to Rule 1925(a) of the Pennsylvania Rules of
Appellate Procedure, Pa. R.A.P. 1925(a), common pleas
concluded that although the Award satisfied the essence test,
it violated the public policy against sexual harassment and,
therefore, vacated the Award pursuant to the public policy
exception to that test. (Common Pleas Op. at 12.) Common
pleas held that the Award, reinstating Katz to the classroom
despite Arbitrator's findings that Katz committed
multiple and continuous acts of sexual harassment toward
Co-teacher in front of students, "pose[d] an
unacceptable risk of undermining the clear anti-sexual
harassment policy of [the District] and the Commonwealth of
Pennsylvania." (Id. at 13-14.)
determine whether the Award violates the Commonwealth's
public policy against sexual harassment and, therefore, was
properly vacated by common pleas pursuant to the public
policy exception to the essence test. The public policy exception
is narrow and "prohibit[s] a court from enforcing an
arbitrator's award that contravenes public policy."
Shamokin Area Sch. Dist. v. Am. Fed'n of State,
Cnty., and Mun. Emps. Dist. Council 86, 20 A.3d 579, 582
(Pa. Cmwlth. 2011). While this exception is a narrow one, we
are not to interpret it so narrowly "that it would be,
as a practical matter, completely negated." Phila.
Housing Auth. v. Am. Fed'n of State, Cnty. and Mun. Emps.
Dist. Council 33, Local 934, 52 A.3d 1117, 1125 (Pa.
The public policy exception requires the application of a
First, the nature of the conduct leading to the discipline
must be identified. Second, we must determine if that conduct
implicates a public policy which is "well-defined,
dominant, and ascertained by reference to the laws and legal
precedents and not from general considerations of supposed
public interests." . . . . Third, we must determine if
the arbitrator's award poses an unacceptable risk that it
will undermine the implicated policy and cause the public
employer to breach its lawful ...