Neshaminy School District v. Neshaminy Federation of Teachers

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

JMC-2

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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