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Neshaminy School District v. Neshaminy Federation of Teachers

Commonwealth Court of Pennsylvania

September 18, 2017

Neshaminy School District
v.
Neshaminy Federation of Teachers, Appellant

          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, [1] HONORABLE JOSEPH M. COSGROVE, Judge.

          OPINION

          RENÉE COHN JUBELIRER, Judge.

         Before 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.

         I. Background

         Union 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.)

         Katz 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).

         In his May 25, 2015 decision, Arbitrator addressed, relevant here, Katz's behavior toward his co-teacher[2] (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.)

         Arbitrator 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.)

         With 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 regard.

         Based 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 appeal followed.[3]

         In its 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.)

         II. Discussion

         We must 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.[4] 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. 2012).

The public policy exception requires the application of a three-prong test:
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 ...

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