Neshaminy SD v. Neshaminy Federation of Teachers , 171 A.3d 334 ( 2017 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Neshaminy School District :
:
v. : No. 410 C.D. 2016
: Argued: May 3, 2017
Neshaminy Federation of Teachers, :
Appellant :
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, Judge1
HONORABLE JOSEPH M. COSGROVE, Judge
OPINION BY
JUDGE COHN JUBELIRER FILED: September 18, 2017
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
1
This case was decided before Judge Hearthway’s service on the Court ended on
September 1, 2017.
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).
2
In his May 25, 2015 decision, Arbitrator addressed, relevant here, Katz’s
behavior toward his co-teacher2 (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
2
Allegations were made about Katz’s behavior toward several other teachers, but
Arbitrator held that the only conduct that violated the District’s Policies and Section 235.11(3) of
Pennsylvania’s Code of Professional Practice and Conduct for Educators, 22 Pa. Code §
235.11(3) (prohibiting a professional educator from “[s]exually harass[ing] a fellow employe”),
and warranted discipline was that toward Co-teacher.
3
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
3
We review challenges to grievance arbitration awards using the essence test, which
gives great deference to the arbitrator’s award. Westmoreland Intermediate Unit #7 v.
Westmoreland Intermediate Unit #7 Classroom Assistants Educ. Support Pers. Ass’n,
PSEA/NEA, 939 A.2d 855, 862-63 (Pa. 2007) (Westmoreland I). Pursuant to the essence test, if
the issue as properly defined falls within the scope of the parties’ CBA, the arbitration award
may only be vacated if the award “‘indisputably and genuinely is without foundation in, or fails
(Footnote continued on next page…)
4
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
_____________________________
(continued…)
to logically flow from,’ the CBA.” Phila. Housing Auth. v. Am. Fed’n of State, Cnty. and Mun.
Emps. Dist. Council 33, 52 A.3d 1117, 1121 (Pa. 2012) (quoting State Sys. of Higher Educ.
(Cheyney Univ.) v. State Coll. Univ. Prof’l Ass’n (PSEA-NEA), 743 A.2d 405, 413 (Pa. 1999)).
If the essence test is satisfied, the Court may consider whether the award violates a well-defined
and dominant public policy. Id. “This is a pure question of law; our standard of review is de
novo, and our scope of review is plenary.” Id. Neither party asserts in this appeal that the Award
violates the essence test.
4
District also argues that the reinstatement of Katz undermines public policy, which
requires an employee’s candor when responding to an employer’s investigation. District
criticizes Arbitrator for not imposing any discipline on Katz for his conduct during its
investigation. Arbitrator, while noting there were inconsistencies and a lack of forthrightness in
Katz’s answers, was ultimately not convinced Katz deliberately attempted to deceive the
investigator and did not find just cause for discipline for any of District’s other charges. (Award
at 25.) Arbitrator was in the best position to determine Katz’s credibility, and this determination
(Footnote continued on next page…)
5
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 obligations or public duty, given the particular
circumstances at hand and the factual findings of the arbitrator.
City of Bradford v. Teamsters Local Union No. 110, 25 A.3d 408, 414 (Pa.
Cmwlth. 2011) (quoting Westmoreland Intermediate Unit #7 v. Westmoreland
Intermediate Unit #7 Classroom Assistants Educ. Support Pers. Ass’n, PSEA/NEA,
939 A.2d 855, 866 (Pa. 2007) (Westmoreland I)). This test “draws a necessary
balance between the public employer’s duty to protect the health, safety and
welfare of the citizens it serves, the fair treatment of public employees and the
salutary goal of [the Public Employe Relations Act5 (PERA)] to insure the prompt
_____________________________
(continued…)
was within the sole province of Arbitrator and is beyond the scope of our review. Narcotics
Agents Reg’l Comm. v. Office of Attorney Gen., 936 A.2d 548, 552 (Pa. Cmwlth. 2007).
5
Act of July 23, 1970, P.L. 563, as amended, 43 P.S. §§ 1101.101–1101.2301.
6
resolution of labor disputes in binding arbitration.” City of Bradford, 25 A.3d at
415.
In this case, there is no real disagreement relating to the first two prongs of
the test. First, the nature of the conduct leading to Katz’s discipline is the
pervasive sexual harassment of Co-teacher, which created a working environment
that she found to be harassing, hostile, and offensive. Arbitrator concluded that
Katz’s behavior violated District’s general harassment and sexual harassment
policies, as well as the Professional Conduct Code’s prohibition against the sexual
harassment of a fellow employee. While characterizing Katz’s behavior as “non-
physical” and “unintentional” throughout its brief, Union does not dispute the
finding that Katz engaged in sexual harassment. Second, the conduct implicates a
well-defined and dominant public policy. The parties agree there is a well-defined
and dominant public policy against sexual harassment. This public policy is well-
established in our precedent. Phila. Housing Auth., 52 A.3d at 1123-24.
Here, the disagreement involves the third prong: whether, given the
circumstances involved and Arbitrator’s factual findings, the Award “poses an
unacceptable risk that it will undermine the . . . policy” against sexual harassment
and cause District to breach its lawful obligations or public duty. City of Bradford,
25 A.3d at 414. If it does, the Award should not be enforced. This prong “allows
for consideration of the particular circumstances of the case and any attendant
aggravating or mitigating factors” to determine if an award strikes the appropriate
balance between the public employer’s obligations and duties to the citizens it
serves and the goal of binding arbitration under PERA. Id. at 415.
Union argues that the Award imposing a 20-day suspension and allowing
District to require Katz to attend a reasonable sexual harassment training program
7
is a reasonable and calculated response to the finding of “non-physical and
unintentional sexual harassment” and, therefore, does not undermine the public
policy against sexual harassment. (Union’s Br. at 13.) It acknowledges that “[a]
public employer should be empowered to implement a zero tolerance policy when
appalling, assaultive, repeated sexual harassment is at issue,” Phila. Housing Auth.,
52 A.3d at 1124. But Union points out that termination is not required in all sexual
harassment cases, id., and common pleas, in essence, interpreted Philadelphia
Housing Authority as establishing a per se zero tolerance policy in these matters.
Citing several cases in which arbitration awards were upheld on appeal, Union
posits that the precedent demonstrates that an arbitration award will not be vacated
unless “the arbitrator’s response to established misconduct is so deficient so as to
fail to recognize the award’s impact on public policy.” (Union’s Br. at 20.) Here,
Union argues, the discipline Arbitrator imposed addresses Katz’s misconduct and
was not deficient.
District responds that the Award undermines the public policy against sexual
harassment and eviscerates its ability to enforce its obligations under that policy. It
contends that the Award reinstating Katz to the classroom poses an unacceptable
risk and demonstrates a tolerance for sexual harassment. According to District,
this Award is like the awards vacated under the public policy exception in
Philadelphia Housing Authority and Westmoreland Intermediate Unit #7 v.
Westmoreland Intermediate Unit #7 Classroom Assistants Educational Support
Personnel Association, PSEA-NEA, 72 A.3d 755, 759 (Pa. Cmwlth. 2013)
(Westmoreland II), petition for allowance of appeal denied, 84 A.3d 1066 (Pa.
2014). After reviewing the precedent cited by Union and District, we are
persuaded by District’s position.
8
In Philadelphia Housing Authority, the employee was discharged for verbal
and physical acts of sexual harassment against a female co-worker. After hearings
before an arbitrator, the arbitrator found there was not just cause to discharge the
employee and reinstated him to his position without further punishment,
concluding that a prior verbal warning by a supervisor was sufficient to prevent
any further misbehavior. This Court vacated the award, concluding that the award
violated a dominant well-established public policy against sexual harassment. In
affirming, our Supreme Court concluded that the arbitrator’s award, which
reinstated without conditions the employee who engaged in “‘extraordinarily
perverse’ physical sexual harassment” of a co-worker, violated public policy
because it “encourage[d] individuals who are so inclined to feel free to misbehave
in egregious ways, without fear of any meaningful consequence.” Phila. Housing
Auth., 52 A.3d at 1125, 1128. Accordingly, the Supreme Court found that the
award “betray[ed] a lack of appreciation for the dominant public policy” and had to
be vacated. Id. at 1128.
In Westmoreland II, a school employee was discharged from her
employment after being found unconscious in a school bathroom from a drug
overdose when she was supposed to be supervising students. After an arbitrator’s
award reinstated her with conditions associated with her completing rehabilitation,
this Court held, relying on Philadelphia Housing Authority, that the award violated
public policy related to educating children about the use of illicit drugs and
protecting them from exposure to such drug use. Westmoreland II, 72 A.3d at 759.
We observed that “to reinstate an employee who attended work while under the
influence, while charged with the duty of overseeing young children, with the hope
that she will overcome her addiction, defies logic and violates public policy.” Id.
9
Therefore, this Court concluded that “[t]he [a]rbitrator’s award demonstrated a
tolerance, rather than intolerance for illicit drug use, and is in direct contravention
of public policy.” Id.
We acknowledge that courts are to give arbitration awards deference and are
not to second-guess an arbitrator’s findings of fact or interpretations. Coatesville
Area Sch. Dist. v. Coatesville Area Teachers’ Ass’n, PSEA, 978 A.2d 413, 415 n.2
(Pa. Cmwlth. 2009). But these awards are not “entitled to a level of devotion that
makes a mockery of the dominant public policy against sexual harassment.” Phila.
Housing Auth., 52 A.3d at 1127-28. Our Supreme Court, in Philadelphia Housing
Authority, explained that “the rational way to approach th[is] question is to
recognize the relationship between the award and the conduct; and to require
some reasonable, calibrated, defensible relationship between the conduct
violating dominant public policy and the arbitrator’s response.” Id. (emphasis
added). Under this standard, we do not completely remove consideration of the
underlying conduct from the inquiry. Rather, courts are to consider both
aggravating and mitigating factors in determining whether an “award pose[s] an
unacceptable risk that a clear public policy will be undermined if the award is
implemented.” City of Bradford, 25 A.3d at 415. After reviewing the
circumstances and Arbitrator’s factual findings, we are compelled to conclude the
Award does just this if it is implemented.
Arbitrator found Co-teacher’s testimony regarding the continuous nature of
Katz’s sexually explicit comments to Co-teacher, which occurred “all day, every
day” to the point students were commenting on their relationship, “compelling,
sincere, and credible.” (Hr’g Tr. at 116-17, 122, R.R. at 100a, 102a; Award at 23.)
When Co-teacher confronted Katz about his behavior and asked him to stop, he did
10
not apologize or accept responsibility for his behavior, but responded with yet
another sexually-charged comment (“[s]o, I shouldn’t slap your a[**]”). (Award
at 23.) Common pleas recognized that these continued and ongoing comments by
a senior male instructor toward a younger, first-year female teacher in the presence
of ninth grade students could not only distract the students from their education but
also warp the students’ understanding of permissible conduct and make them
believe such conduct was normal. (Common Pleas Op. at 15-16.) Without
considering the effect on either Co-teacher or the students, the Award placed Katz
back into the classroom despite Arbitrator’s finding that Katz’s ongoing sexual
harassment of Co-teacher created a “hostile[] and offensive” environment. (Id. at
16 (quoting Award at 24).)
Union argues common pleas improperly re-evaluated this matter and found
that Katz engaged in this conduct in front of his and Co-teacher’s students, a
finding not made by Arbitrator. However, Co-teacher’s testimony, found credible
and compelling by Arbitrator, necessarily established that Katz had to have
engaged in this conduct in front of their impressionable students of whom he
was “charged with the duty of overseeing” and educating, Westmoreland II, 72
A.3d at 759, in order for them to comment on a potential relationship between Katz
and Co-teacher. Arbitrator either did not consider, or fully appreciate, this fact
when reinstating Katz to his teaching position. Thus, we agree with common pleas
“that suspending Katz for only [20] days as a result of th[is] aforementioned
conduct would not only provide an unacceptable risk of undermining [the
District’s] policies, but . . . would effectively neuter those policies.” (Common
Pleas Op. at 17.)
11
Additionally, while Arbitrator imposed a 20-day suspension and authorized
District to require Katz to undergo reasonable sexual harassment training,
reinstating him to the same work place pending his possibly receiving training on
why his actions were inappropriate with the hope that he will change his
personality and learn the error of his ways is similar to the reinstatement with
conditions in Westmoreland II. As we stated there, this result “defies logic and
violates public policy.” Westmoreland II, 72 A.3d at 759.
For these reasons, there is not a “reasonable, calibrated, defensible
relationship between” Katz’s continuous, hostile, offensive, and deleterious
conduct “violating dominant public policy and the [A]rbitrator’s response” to
reinstate Katz to the classroom, even with the condition that the District could
require him to attend reasonable sexual harassment training after his reinstatement.
Phila. Housing Auth., 52 A.3d at 1128. As such, the Award “betrays a lack of
appreciation for the dominant public policy” against sexual harassment, id., and
“demonstrate[s] a tolerance, rather than intolerance for” such behavior “in direct
contravention of public policy,” Westmoreland II, 72 A.3d at 759.
Union seeks to distinguish Philadelphia Housing Authority on the basis that
it involved far more egregious behavior by the grievant and an award imposing no
penalty for that behavior, which demonstrated the arbitrator’s lack of appreciation
of the public policy against sexual harassment. Union also asserts that
Westmoreland II provides no guidance because that case involved ongoing drug
use of a teacher, “which the arbitrator could not possibly ensure could be
controlled upon the return of the teacher to the classroom.” (Union’s Reply Br. at
8.) Union further argues that Westmoreland II does not support the conclusion that
every violation of public policy must result in the employee’s discharge because
12
this Court upheld the awards in City of Bradford, Rose Tree Media Secretaries &
Educational Support Personnel Association v. Rose Tree Media School District,
136 A.3d 1069, 1080 (Pa. Cmwlth. 2016), and Colonial Intermediate Unit #20 v.
Colonial Intermediate Unit #20 Education Association, PSEA/NEA (Pa. Cmwlth.,
No. 839 C.D. 2014, filed February 9, 2015).6 According to Union, this Award
represents a sufficient response to Katz’s “non-physical sexual harassment of a co-
worker with a [20]-day suspension and remedial training.” (Union’s Reply Br. at
8.) We are, however, unpersuaded by Union’s attempts to distinguish Philadelphia
Housing Authority and Westmoreland II by diminishing Katz’s continuous and
reprehensible conduct toward Co-teacher and citing precedent which is
distinguishable.
In City of Bradford, a refuse collector was discharged from his public
employment for theft after taking money that had fallen from a purse found in an
open garbage bag, which he subsequently surrendered to the police. The arbitrator
found that while the employee had engaged in theft, the employer had not
considered certain mitigating factors when it removed him from his position. City
of Bradford, 25 A.3d at 411. Thus, the arbitrator reinstated the employee subject
to a long-term suspension, without back pay or benefits. The local court of
common pleas denied the employer’s petition to vacate, and this Court ultimately
affirmed. Applying the public policy exception, we held that although there is a
well-defined, dominant policy against on-the-job theft, the employee’s
reinstatement did not pose a significant risk of undermining that policy based on
6
Pursuant to this Court’s internal operating procedures, an unreported opinion issued
after January 15, 2008, may be cited as persuasive authority, but not as binding precedent. 210
Pa. Code § 69.414(a).
13
the presence of numerous mitigating factors, such as the employee’s prior good
work history, his paying restitution, the conduct was an isolated, unplanned
incident, and his job did not place him in a position of public trust. Id. at 415-16.
Unlike City of Bradford, there are few mitigating factors present here. While Katz
did not have any prior disciplinary actions against him, it is undisputed that Katz’s
behavior was continuous (not isolated); when he was asked to stop, he responded
with additional offensive comments; and, as a teacher, Katz clearly holds a
position of public trust.
In Rose Tree Media, a school employee was discharged for mistreating a
special needs student based on the employer’s allegation that she dragged the
student by his wrist for over 20 feet. The employee provided a different
characterization of the incident in question, which was credited by the arbitrator.
The arbitrator found that the conduct, as described by the employee, did not violate
public school laws, and, after considering mitigating factors, reinstated the
employee with a five-day suspension. We upheld the award, concluding that,
based on the arbitrator’s credibility finding, the employee “did not violate any
well-defined or dominant public policy involving school violence.” Rose Tree
Media, 136 A.3d at 1080. Similarly, in Colonial Intermediate Unit #20, we
affirmed an arbitrator’s reinstatement of a special education teacher who had been
removed for using aversive7 behavior teaching and disciplinary techniques. The
employer argued there was a public policy against using aversive techniques,
7
“Aversive” is defined as “tending to avoid or causing avoidance of a noxious or
punishing stimulus < behavior modification by [aversive] stimulation >.” Merriam-Webster’s
Collegiate Dictionary 85 (11th ed. 2003). “Aversion therapy” is “therapy intended to suppress
an undesirable habit or behavior . . . by associating the habit or behavior with a noxious or
punishing stimulus.” Id.
14
which the employee’s conduct violated. However, we found “no error in [the
arbitrator’s] determination that any public policy regarding [the use of] aversive
[teaching] techniques was not so well-defined [as to] and ascertainable by
reference to the laws and legal precedents as to qualify for the” public policy
exception. Colonial Intermediate Unit #20, slip op. at 23. Thus, in Rose Tree
Media and Colonial Intermediate Unit #20, the employees’ conduct did not violate
a well-defined public policy and the second prong of the public policy exception
was not satisfied. Rose Tree Media, 136 A.3d at 1080; Colonial Intermediate Unit
#20, slip op. at 23. The same cannot be said about the present matter.8
Finally, Union suggests Katz was targeted for greater punishment than
warranted by his conduct because of his involvement in Union activities. Union
cites the discipline meted out to other employees of District’s high school
following Katz’s termination. While Arbitrator referenced these subsequent
instances of discipline in his decision, he clearly found Katz’s behavior constituted
continuous sexual harassment that created a hostile and offensive work
environment. Further analysis of how and why District investigated Katz’s
8
Union also argues that Slippery Rock University of Pennsylvania, Pennsylvania State
System of Higher Education v. Association of Pennsylvania State College and University
Faculty, 71 A.3d 353, 365 (Pa. Cmwlth. 2013), and Bethel Park School District v. Bethel Park
Federation of Teachers, Local 1607, 55 A.3d 154, 161 (Pa. Cmwlth. 2012), support its argument
that where an award imposes sufficient consequences for an employee’s misconduct, like the
Award here, the award should be upheld. In those cases, the arbitration awards reinstating the
employees based on violations of the grievants’ due process rights were vacated as being
insufficient responses to the egregious conduct involved, a college professor engaging in
inappropriate sexual comments to and about students while on a field trip abroad, and a teacher
inappropriately touching a seventh grader, respectively. While the awards in Slippery Rock
University and Bethel Park School District were vacated, these cases establish that each factual
situation and circumstance must be individually evaluated to determine if an award contravenes
public policy. Thus, they do not require a different result.
15
behavior is largely irrelevant to our determination that the Award here violates the
well-established public policy against sexual harassment.
III. Conclusion
For these reasons, the Award violates the well-established and dominant
public policy against sexual harassment and must not be enforced. Accordingly,
we affirm common pleas’ Order vacating that Award.
_____________________________________
RENÉE COHN JUBELIRER, Judge
16
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Neshaminy School District :
:
v. : No. 410 C.D. 2016
:
Neshaminy Federation of Teachers, :
Appellant :
ORDER
NOW, September 18, 2017, the Order of the Court of Common Pleas of
Bucks County, entered in the above-captioned matter, is hereby AFFIRMED.
_____________________________________
RENÉE COHN JUBELIRER, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Neshaminy School District :
:
v. :
:
Neshaminy Federation of Teachers, : No. 410 C.D. 2016
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
HONORABLE JOSEPH M. COSGROVE, Judge
DISSENTING OPINION
BY JUDGE COSGROVE FILED: September 18, 2017
The behavior of Jared Katz (Katz) was unquestionably repellant.
Over the course of a year, he subjected a coworker (Coworker) (a teacher junior to
Katz in years as well as length of service) to conduct agreed by all as sexually
harassing in nature. For her part, Coworker felt compelled to tolerate this
behavior, declining to report it because she did not have a permanent teaching
position and wanted to protect her job. (Reproduced Record (R.R.) at 103a.) This
is precisely the sort of circumstance the public policy against sexual harassment is
intended to prevent.
As unpleasant as we find Katz’s conduct, however, we cannot
conclude the Award constitutes a blind tolerance to it. The question for this Court
was whether the Award posed an unacceptable risk that it would undermine the
implicated public policy against sexual harassment. This is an exceptionally high
standard. In his decision, Arbitrator Colflesh noted both the non-physical and
unintentional nature of Katz’s actions and imposed a twenty-day period of unpaid
leave, and authorized the District to require Katz undergo remedial sexual
harassment training. (R.R. at 331a.)
Short of a finding that the arbitration award itself contravenes public
policy, the award is afforded great deference. A reviewing court may not second-
guess an arbitrator’s findings of fact or interpretation, Coatesville Area School
District v. Coatesville Area Teachers’ Association, PSEA, 978 A.2d 413, 415 n.5
(Pa. Cmwlth. 2009), and a court may not reject those findings simply because it
disagrees with them. United Paperworkers International Union, AFL-CIO v.
Misco, Inc., 484 U.S. 29, 38 (1987). This matter is not analogous to Philadelphia
Housing Authority v. American Federation of State, County and Municipal
Employees, 52 A.3d 1117, 1125 (Pa. 2012), where the employee harasser faced no
consequences for his “facially criminal” conduct. The present Award imposed a
suspension without pay and required Katz undergo sexual harassment training at
the discretion of the District. As such, the Award is not so bereft of consequences
that it can be said to contravene public policy. On the contrary, in addition to the
embarrassment of a suspension from employment, the Award grants broad
authority to the District to impose whatever level, form or intensity of sexual
harassment training it deems necessary to address Katz's grossly improper conduct.
Perhaps each member of this Court would have reached a different
conclusion than the Arbitrator. That is not the point. Arbitration provisions are an
essential part of the collective bargaining process and must be free of meddling
from the bench. The Majority’s reaction to this dreadful situation is
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understandable, but it nonetheless encroaches upon the arbitration mechanism to
which the present parties agreed.
For these reasons, I respectfully dissent.
___________________________
JOSEPH M. COSGROVE, Judge
President Judge Leavitt joins in this dissent.
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