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IN THE MATTER OF ARBITRATION
ESCAMBIA EDUCATION ASSOCIATION Union And THE SCHOOL DISTRICT OF ESCAMBIA COUNTY, Employer Before
) Grievant: WILLIAM R. AYDELOTT ) Dismissal
Jeanne Charles Wood, Esquire Arbitrator
For the Union: Patricia A. Draper, Esq., Meyer, Brooks Demma and Blohm, 131 N. Gadsden, Tallahassee, FL, 32301.
For the Employer: Leonard J. Dietzen, III., Esq., Rumberger, Kirk and Caldwell, 215 S. Monroe, Street, Suite, 702, Tallahassee, FL 32302.
INTRODUCTION This matter is premised upon claims before the American Arbitration Association (AAA) and arises under the collective bargaining agreement (CBA or Master Contract) between the School District of Escambia County (Respondent or District or Employer) and the Escambia
2 Education Association (Claimant or Association or Union). It involves allegations that William
R. Aydelott (Grievant) had inappropriate contact with a female high school student in 2010 in
violation of the Escambia County School District and state of Florida Employee Codes of Ethics. Pursuant to the AAA Rules and Procedures for Labor Arbitrations, the parties have designated Jeanne Charles Wood to hear and to decide certain disputes arising between them. The parties presented evidence and arguments on March 15, 2012 in Pensacola, Florida. The parties were provided with a full opportunity to examine and cross-examine witnesses. Witnesses were sworn and testified under oath. The record was closed on May 12,2012 upon the Arbitrator's receipt of post-hearing briefs. ISSUES
1. Was the grievance timely invoked for arbitration?
2. Was the Grievant terminated for just cause? If not, what shall be the remedy?
ARTICLE III RESOLUTION OF GRIEVANCES AND PROBLEMS
ARTICLE III.3 GRIEVANCE PROCEDURES A. Levell - Worksite The Association may present the grievance in writing to the grievant's immediate supervisor who will arrange for a meeting within eight (8) days after receipt of the grievance. The grievant, an Association representative, and the grievant's immediate supervisor may also request that a representative of the administration be present in his behalf. The supervisor must provide the Association and the grievant a written answer within (8) days from the date of said meeting. The answer will state the rationale for the decision. By mutual agreement, the timelines may be extended to achieve the most suitable resolution. Case No. 33 390 00376 11
3 B. Level 2 - District If the Association and the grievant are not satisfied with the disposition of the grievance at Level 1, the grievance may be referred to the Superintendent. The Superintendent or the Superintendent's designee shall arrange for a meeting with representatives of the Association and the grievant(s) to take place within eight (8) days of the receipt of the appeal. The Superintendent or Superintendent's designee shall have eight (8) days to provide a written answer after the meeting has been completed. The answer shall state the rationale for the decision. This time limit may be extended only by mutual consent of the patties. C. Level 3 - Arbitration
If the Association is not satisfied with the disposition of the grievance at the Level 2 or if the time limit for response at Level 2 has expired without the issuance of the required written answer, the grievance may be submitted within thirty (30) days to final and finding arbitration according to the rules of the American Arbitration Association.
ARTICLE IlIA TIME LIMITS
A. Since it is important that a grievance be processed as rapidly as possible, the number of days
indicated at any level should be considered as a maximum and, every effort should be made to expedite the process. B. The time limits provided by this Article shall be strictly observed, but may be extended by written agreement of the Board and the Association. Grievances filed after May I, shall be processed as expeditiously as possible so that the grievance may be resolved prior to the end of the school term or as soon as thereafter as practical. ARTICLE XI EMPLOYEE DISCIPLINARY XLI DISCIPLINE DEFINED Disciplinary Action shall be defined as any action that includes: warning conference, verbal reprimand, written reprimand, suspension with pay, suspension without pay andlor dismissal. XL2 PROCEDURES A. Any disciplinary action shall be administered only by the appropriate immediate administrator. All disciplinary action shall be progressive, fair and nondiscriminatory. Disciplinary action which involves the more severe discipline of written reprimand, suspensions or dismissal shall be for proper cause. For purposes of this agreement, "Progressive" discipline shall mean discipline whose intention is to correct unacceptable or non-productive behavior. Progressive discipline anticipates that corrective action for a first offense will begin at the lowest Case No. 33 390 00376 11 PROCEDURES
level most appropriate to the behavior (verbal warning, conference, counseling, letter of reprimand, suspension, suspension without pay, dismissal) and proceeding to higher, more intrusive discipline should the desired behavior not be achieved. APPLICABLE RULES AND REGULATIONS
Escambia County School District Employee Code of Ethics (Improper Conduct Regarding Students) All persons employed by the Escambia County School District, regardless of their particular job or role, have ethical responsibilities and obligations. The governmental dimensions of these responsibilities impose duties inherent in public service including the promotion and protection of public trust and confidence, avoidance of conflicts of interest and appearances of impropriety, as well as careful and informed management of public fiscal resources. These duties must at all times guide the conduct of all employees who serve the School District. The educational responsibilities of School District employees require that the educational and development interests of students must be of the highest priority. All School District employees should conduct themselves in a manner that promotes and supports the development of good character by teaching, enforcing, advocating and modeling ethical principles and values.
IMPROPER CONDUCT REGARDING STUDENTS Avoiding Appearances of Impropriety Regarding Students. School District employees are entrusted with the physical and emotional safety and well being of School District students. To justify and maintain this trust, School District employees shall not engage in any conduct that is likely to create in the minds of reasonable impartial observers the perception that a relationship or interaction with one or more students is abusive, exploitive or otherwise improper. Dating relationships between a School District employee and a student are strictly prohibited.
ENFORCEMENT Violations of this Code of Ethics may result in administrative or disciplinary actions including suspension or dismissal, as well as referral to appropriate authorities for civil and/or criminal prosecution. Determinations made with respect to potential violations of the Code of Ethics Case No. 33 390 00376 11
5 shall in no way supersede, preclude or replace any other legal action or grievance procedures under any applicable collective bargaining agreement that may be warranted by the conduct.
Fla. Admin. Code, Rule 6.B-1.001, Code of Ethics of the Education Profession in Florida
(2) The educator's primary professional concern will always be for the student and for the development of the student's potential. The educator will therefore strive for professional growth and will seek to exercise the best professional judgment and integrity.
Fla. Admin. Code, Rule 6.B-l.006, Conduct for the Education Profession in Florida
(1) The following disciplinary rule shall constitute the Principles of Professional Conduct for the Education Profession in Florida.
(2) Violation of any of these principles shall subject the individual to revocation or suspension of the individual educator's certificate, or other penalties as provided by law. (3) Obligation to the student requires that the individual: (a) Shall make reasonable effort to protect the student from conditions harmful to learning and/or to the student's mental and/ or physical health and/or safety. (e) Shall not intentionally expose a student to unnecessary embarrassment or disparagement.
(h) Shall not exploit a relationship with a student for personal gain or advantage.
BACKGROUND This matter concerns the termination of William R. Aydelott (Grievant) from his employment with the Escambia County School District for inappropriate contact and
communications with a female high school student in 2010. The Grievant worked as a coach and/or teacher for over 20 years. He was a science teacher and coach assigned to the Pensacola High School (PHS) at the time of his termination on January 19, 2011. PHS is in the Escambia Case No. 33 390 00376 11
6 County School District. The Union challenged the Employer's decision to terminate Grievant by filing a grievance which was not resolved through the grievance process. Thereafter, the Union invoked arbitration by filing a demand with the AAA.
Prior to the healing, Respondent filed, with the AAA, a motion to dismiss the instant matter claiming that the arbitration demand was filed in an untimely manner. Claimant submitted a response to the motion dated March 14,2012. On March 14,2012, this Arbitrator ruled that the decision on the motion to dismiss would be deferred until such time that the final award is issued.
The Employer argues that:
This grievance is not arbitrable because the Claimant failed to submit a timely request for arbitration with the AAA in accordance with the requirements of the parties' CBA. Although Claimant gave written notice to Respondent of its intention to file a demand for arbitration within 30 days of May 9, 2011 (the day Respondent issued a Level 2 decision regarding Claimant's grievance), Claimant did not file a copy of this notice at any regional office of the AAA as is required by the Master Contract and the AAA Rules. Since Claimant did not submit a demand for arbitration to AAA until October 17, 2011, and there was no written agreement between the parties to extend the deadline, the Union failed to submit this grievance to final and binding arbitration in accordance with the express, unambiguous and bargained-for terms of the Master Contract. Claimant's reliance on The Escambia Education Association v. The School District of Escambia County, Florida, AAA Case No. 33 3900028907 (Grievant Karen Broughton) (Nov. 11, 2007) ("Broughton"), is misplaced. The parties failed to consider the AAA rules in Broughton as it has in the instant case. The language of Article III.3(C) is clear and contains no latent ambiguities which would render it subject to two or more plausible meanings as the arbitrator held in Broughton. Therefore, unlike in Broughton, evidence of the parties' past practice is not needed to interpret the meaning of Article III.3(C) of the Master Contract. Even if evidence of the parties' past practices is considered, Article III.3(C) still unmistakably requires that a claimant submit his or her request to arbitrate a grievance to both the opposing party and to AAA within 30 days of a Level 2 determination.
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7 Claimant's reliance on the Arbitrator's Award in the Escambia Education Association vs. Richard Hunter performance rating case is misguided. In that case, the parties stipulated that the matter was properly before the arbitrator. No such stipulation exists in this case before this arbitrator.
The Union argues that:
It has been a long standing past practice that the Association's Board must meet to vote
on whether to take a case to arbitration. The Employer is aware of this practice and has repeatedly failed to object to scheduling arbitration in a series of cases. In fact, the parties had operated in this fashion for 18 years until the Employer objected to timeliness in the Broughton arbitration case based on the same circumstances present in this case.
The Broughton decision was issued in November 2007 finding that the filing of arbitration was not untimely based on past practice. Subsequent to that time, the Employer did not object to the same practice used by the Union in the Richard Hunter #11 arbitration. Specifically, the Level II decision was issued May 7, 2010 and on May 28, 2010 a notice of intent to arbitrate was issued by the Union. The request for arbitration was sent to AAA on March 10, 2011 (more than 10 months after the Level II decision). In a second Hunter grievance, the Level II decision was issued on November 1, 2010. The Union gave notice of intent to arbitrate the grievance to the District on December 3, 2010. The demand for arbitration was not filed with AAA until May 24, 2011(more than six months after the Level II decision). In the Julie Christofferson arbitration, the Level II decision was issued November 19, 2010. The notice of intent to arbitration was issued by the Union on November 23,2010. The request for arbitration was sent to AAA on March 31, 2011(four months after the Level II decision). The District did not object to the timing of the referral to AAA. In the instant case, the Union made an effort to get the Level II issued as soon as possible to have it considered by its Board. However, the Employer's grievance officer was going out of town and could not comply. As a result, the Union's Board could not address the matter until its fall meeting. The District never sought to change the Master Contract after Broughton and continued to acquiesce to the practice of delaying the referral to AAA. In this case, the District chose to raise its objection to the timeliness for the first time seven (7) days prior to the hearing. It is a well-established principle of arbitration law that procedural issues not raised prior to the arbitration hearing are waived. Filing its objection a week before the hearing is not sufficient to void such a waiver.
There were two (2) Richard Hunter grievances.
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8 DISCUSSION The burden of proof rests with the party that raises an issue of substantive or procedural arbitrability. In this case, the District bears the burden.
It is well settled that there is a
presumption of arbitrability and against forfeiture of the right to process a grievance. However, by the same token, an arbitrator must be careful not to exceed his or her authority by granting a remedy that is in contravention to clearly defined terms set forth in the CBA. See, Wyandot, Inc. v. Food & Commercial Workers Local 227, 205 F.3d 922, 163 LRRM 2705 (6th Cir. 2000) (court reversed arbitrator's award reinstating discharged union member because grievance was not timely filed and thus award departed from essence of collective bargaining agreement). A question of arbitrability based on untimeliness is a matter of contract interpretation as the agreement between the parties governs the time frames that are required for processing a grievance. Here, the parties have a different interpretation of the relevant contract language. Key to the resolution of any dispute interpreting contract language is a determination of the parties' intent as to specific contract provisions. In undertaking this analysis, an arbitrator will first
examine the language used by the parties. If the language is ambiguous, an arbitrator will assess comments made when the bargain was reached, assuming there is evidence on the subject. In addition, an arbitrator will examine the previous practice by the parties related to the subject. If language in the agreement between the parties is unclear, issues of timeliness should be decided against forfeiture. If, on the other hand, the language is clear, the arbitrator must determine
whether the parties have demonstrated that they intended strict compliance with its terms under all circumstances. For the reasons that follow, it is concluded that the demand for arbitration was timely filed by the Union.
Case No. 33 390 00376 II
Respondent's position that the questioned contract language is clear is not persuasive. I agree with Arbitrator Renovitch's conclusion in the Broughton case that the language in the
Master Contract is not clear as there are two plausible interpretations of how to proceed to arbitration. Respondent argues that AAA rules require a claimant to initiate arbitration by 1) giving written notice to the other party of its intention to arbitrate; and 2) filing at any regional office of the AAA three copies of the notice. A review of the AAA Labor Arbitration rules states that parties may initiate arbitration in the above-referenced manner. The AAA language is permissive not mandatory. Thus, the Union was not required to follow this exact procedure in order to be complaint with the terms of the CBA. Because of the ambiguity associated with how exactly arbitration is to be initiated under the terms of the CBA, past practice becomes a useful tool for an arbitrator to determine the intent of the questioned language. As in the Broughton case and in other cases going back 18 years before Broughton, the
Union has followed the same practice of providing a notice of intent to file arbitration to the School Board within the 30-day timeframe set forth in the Master Contract. Subsequent to filing this notice, the Union would file the demand for arbitration with the AAA after obtaining a vote to do so from its Board. Since Broughton, the parties have continued to operate in the same
manner. There have been three (3) arbitrations in the last 3 years. In each case, the 30-day intent letter was met. No objection was made by the Employer even though the request to AAA was sent months later. Significantly, a new contract was negotiated after the Broughton decision and the
contract language did not change. Respondent argues that the language is "crystal clear" and therefore did not necessitate the negotiation of new language. The unavoidable conclusion is that the challenged language is not clear given that one arbitrator has ruled that the questioned
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10 language is not clear and there is still a difference of opinion between the parties with respect to the intent of the challenged language regarding invoking arbitration. It would seem that if the Union's practice was so objectionable or not what was intended, the parties would have negotiated new language that would clarify their true intent after Broughton. Since that was not the case, I can only conclude that the parties intended to proceed in the manner it had before and after Broughton. Additionally, the Employer argued that it can be prejudiced by the Union's practice of waiting until its Board can meet to vote on advancing a case to arbitration. Nothing in the record indicates that the Union has engaged in any dilatory tactics with respect to filing for arbitration.
In the instant case, the Union waited on a Level 2 response from the School Board's hearing
officer even though the hearing officer responded beyond the 8-day time period and it could have advanced the matter to arbitration under the CBA. William Vincent (Vincent), Director of the EEA explained during the arbitration hearing that he chose to wait on the Level 2 response in case the matter was resolved in favor of the Grievant. He explained further that either spring break or the hearing officer's conference schedule did not permit him to issue the Level 2 response any sooner than May 9, 2011. That being the case, the Union was not able to present the matter to its Board in time for the May meeting. However, it did send a letter to the School Board notifying it of the Union's intent to pursue arbitration. The letter specifically put the School Board on notice that "[bjefore the arbitration may be filed, EEA's Board of Directors must approve the action.t" In the meantime, the end of the school year was approaching. The matter was presented to and voted on by the Union's Board early in the next school year since, as Vincent testified, the Union's Board does not meet during the summer break. The demand for arbitration was filed on October 16, 2011. No objection was made by the School Board as to
Joint Exhibit 3.
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11 timeliness until one (1) week before the matter was scheduled to go to hearing before this Arbitrator on March 15, 2012. The Employer was aware of the arbitration demand nearly five (5) months before the hearing took place and made no object that timeliness of the demand for arbitration was an issue. The record is conclusive that the Union operated with due diligence in advancing this case to arbitration and there was no delay that would cause any prejudice to the School Board. Because the contract language is unclear, the parties' past practice of allowing the Union to file a demand for arbitration with the AAA after the Union's Board has met even when that filing has fallen outside the 30-day contractual period relied upon by the Employer here, demonstrates that the Union was timely in its filing under the facts of this case. Accordingly, the School Board's motion to dismiss is denied.
II. The Merits
An investigation was initiated on or about Monday, October 11, 2011, when David Williams (Williams), Principal of PHS, reported that Grievant had engaged in inappropriate contacts with a female student at PHS in violation of the state and local school district codes of ethics. Grievant had reported to Williams over the previous weekend that a student was trying to extort him for money ($50.00) in connection with the return of a cell phone in her possession. The cell phone belonged to student Y.F., a student in his class, and contained approximately 241 text messages exchanged between Grievant and Y.F. over a period of nine (9) days. As a result of the report by Williams, Grievant was placed on suspension with pay and removed from the PHS campus on October 11, 2011.
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12 The investigation and record evidence reveals that Y.F. was a 14 year old student in Grievant's science class in 2010. She was also interested in getting on the girl's weightlifting team for which Grievant was the coach. Y.F. stated that she began having trouble with the subject matter in Grievant's science class early in the 2010-2011 school year due to her being absent. She approached Grievant for help and he agreed to tutor her. DUling the course of
coordinating times to tutor Y.F. and providing information about the girl's weightlifting team, Y.F. and her mother gave Grievant Y.F.'s cell phone number. Beginning Friday, October 1, 2010, Grievant began texting Y.F. They exchanged text messages for the next week with great frequency. For example, on Saturday, October 2,2010,58 messages were exchanged. On Sunday, October 3, 2010, 88 text messages were exchanged beginning about noon and ending at about midnight on that day? These messages were exchanged with each party responding, in general, within a few minutes of receiving a text from the other party. On Thursday, October 7,2010, the text message exchange was as follows: On 07 October 2010, at 1729, Y.F. sent a text message to Mr Aydelott: "Hey" On 07 October 2010, at 1741, Mr Aydelott sent a text message to Y.F.: "Going 2 Game" On, 07 October 2010, at 1742, Y.F. sent a text message to Mr Aydelott: "N 0 no money" On, 07 October 2010, at 1743, Mr Aydelott sent a text message to Y.F.: "Next time ask me 4 some" On, 07 October 2010, at 1744, Y.F. sent a text message to Mr Aydelott: "Idk, I don't like asking" On, 07 October 2010, at 1812, Mr Aydelott sent a text message to Y.F.: "just ask next time"
The Analysis of Communications Documentation report (Respondent Exhibit 4) provides a series of documented text message exchanges without the actual text of the messages that were exchanged. The reason why the substance of the text messages does not appear was not explained.
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On, 07 October 2010, at 1813, Y.F. sent a text message to Mr Aydelott: "Idkmaybe" On, 07 October 2010, at 1815, Mr Aydelott sent a text message to Y.F.: "can u call me" On, 07 October 2010, at 1816, Y.F. sent at text message to Mr Aydelott: "I don't call till after 9" On, 07 October 2010, at 1827, Mr Aydelott sent a text message to Y.F.: "ok @ you call me later" On, 07 October 2010, at 1828, Y.F. sent a text message to Mr Aydelott:
On, 07 October 2010, at 1902, Y.F. sent a text message to Mr Aydelott: *4 On, 07 October 2010, at 2241, Mr Aydelott sent a text message to Y.F.:* On, 07 October 2010, at 2242, Y.F. sent a text message to Mr Aydelott: "Hey" On, 07 October 2010, at 2244, Mr Aydelott sent a text message to Y.F.: "what u up 2" On, 07 October 2010, at 2245, Mr Aydelott sent a text message to Y.F.:* On, 07 October 2010, at 2245, Y.F. sent a text message to Mr Aydelott: "I'm just laying down" On, 07 October 2010, at 2247, Mr Aydelott sent a text message to Y.F.: "sexy'" On, 07 October 2010, at 2252, Mr Aydelott sent a text message to Y.F.: "just want to chat" On, 07 October 2010, at 2252, Mr Aydelott sent a text message to Y.F.: "I meant txt" On, 07 October 2010, at 2253, Y.F. sent at text message to Mr Aydelott:
The asterisk indicates no message appears on the Analysis of Communication Documentation report. According to testimony, the "sexy" text was sent in response to Y.F.'s texted survey question not as a response to her text that she was 'just laying down."
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14 On, 07 October 2010, at 2255, Mr Aydelott sent a text message to Y.F.: "I need 2 talk 2 u bout ur make up work?" On, 07 October 2010, at 2255, Y.F. sent a text message to Mr Aydelott: "what about it" On, 07 October 2010, at 2258, Mr Aydelott sent a text message to Y.F.: "well I was jus gonna tell u not 2 WOlTY bout it" On, 07 October 2010, at 2258, Y.F. sent a text message to Mr Aydelott: "Really" On, 07 October 2010, at 2259, Mr Aydelott sent a text message to Y.F.: "yeah" On, 07 October 2010, at 2259, Y.F. sent a text message to Mr Aydelott:
On, 07 October 2010, at 2300, Mr Aydelott sent a text message to Y.F.: "u r welcome" On, 07 October 2010, at 2302, Mr Aydelott sent at text message to Y.F.: "wish i could talk 2 u for a sec" On, 07 October 2010, at 2303, Mr Aydelott sent a text message to Y.F.: "can I call U" On, 07 October 2010, at 2304, Mr Aydelott sent a text message to Y.F.:
On, 07 October 2010, at 2308, Mr Aydelott sent a text message to Y.F.: "hello" On, 07 October 2010, at 2309, Mr Aydelott places a voice call to Y.F. On, 07 October 2010, at 2311, Mr Aydelott sent a text message to Y.F.: "Ok we will just text" On, 07 October 2010, at 2314, Mr Aydelott sent a text message to Y.F.: "do you want me to stop texting u?" On, 07 October 2010, at 2318, Mr Aydelott sent a text message to Y.F.: ''I'm sorry! nite" On, 07 October 2010, at 2325, My Aydelott sent a text message to Y.F.:
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15 "if you do change your mind & decide 2 txt me its ok I'm game that we r playing 2morrow"
walmart getting candy for our
On Friday, October 8,2010 two (2) early morning text messages from Grievant are as follows: On 08 October 2010, at 0008, Mr. Aydelott sent a text message to Y.F.: "what kind of chocolate u want" On 08 October 2010, at 0025, Mr. Aydelott sent a text message to Y.F.: "hey I guess u gone to sleep I got u some choc c u 2 morrow"
At 11:41 a.m. on October 8, Grievant began texting Y.F. again. He sent her nine (9) messages between 11:41 a.m. and 4:15 p.m. that day. Unbeknownst to Grievant, Y.F. had lost her phone during first period. He sent three (3) final text messages just after midnight Saturday, October 9.
Y.F.' s phone had been found by E.M., another student at PHS. The record reflects that,
E.M. along with another student made contact with Grievant after reading the substance of the text messages. They called him and informed him that they knew what was on the phone-claiming he offered them $50.00 to give him the phone." At the time Grievant received the call, he was riding in the car with a co-worker, Robert Schneider (Schneider). Schneider is an ESE teacher, department chair and football coach at PHS. He stated that he saw the look of concern on Grievant's face as he took the extortion call. Grievant had stepped away from Schneider's vehicle to talk. When he returned, he explained to Schneider that he was being blackmailed. Schneider recalled Grievant admitting that he made the wrong choice on a text survey by responding that he wanted to "bang" Y.F.7 According to Schneider, Grievant also explained that he was planning to meet the individual that was blackmailing him. Schneider encouraged him to
There is conflicting evidence in the record as to whether the students demanded the money from Grievant or Grievant offered the money. The students did not testify at the hearing. Grievant testified that the students tried to extort him for the money. In either case, this fact is not necessarily germane to the issue before the Arbitrator.
Y.F. testified that she did not recall any such response from Grievant. She acknowledged that she would forward survey like questions via text messaging to all the contacts in her phone. The text message analysis admitted as Respondent's Exhibit 4 does not include such a communication.
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16 not meet with anyone in connection with the blackmail attempt. Schneider advised Grievant to contact Principal Williams. The next morning Grievant contacted Principal Williams instead of meeting with the individual who was allegedly blackmailing him.
In addition to the text messages, Y.F. testified that Grievant brought a slice of his
birthday cake to her at her home. Her mother was home at the time. She also stated that Grievant offered to take her to a cupcake store. Y.F. explained that she did not feel bothered by the text messages except for the "sexy" response. She testified that it made her uncomfortable and she thought it was out of character for Grievant. Y.F. stated that Grievant told her she was his favorite student. This statement did not bother her because she found that teachers were often friendly with her. Y.F. testified that during the 9-day period when she would receive text messages late at night from Grievant, often times she would not text back because she just was "not in the mood." Y.F. testified that, during this same period of time, sometimes when he asked her to call him, she just didn't do it. Y.F. testified further that Grievant never touched her or made any suggestions about meeting her alone. She stated that she never met with him alone even during tutoring. Y.F. explained that she was actually tutored one time because when she showed up for the second session, Grievant had a meeting to attend. textbook to borrow and assigned some work to her. John Dobbs (Dobbs) has been an investigator for the Escambia County School District since August, 2009. His job is to investigate employee misconduct and fraud that is not criminal in nature. When he received notification of the allegation of an extortion attempt on a teacher and misconduct of Grievant, he referred the extortion matter to the county police and Detective Tarlanda Gooden (Gooden) became involved. He gave her a class
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Gooden works crimes against woman and children. Gooden testified that she interviewed, Principal Williams, Y.F. and her mother. She also discussed the case with Dobbs. She recalled that Y.F. stated that she was uncomfortable about the "sexy" text response and going to the cupcake store. Gooden concluded that Grievant's interaction with Y.F. was considered the "grooming" stage of pedophilia. The grooming stage is where the "pedophile" throws a "hook" out to see if the victim will bite. Then the activity progresses from there. Gooden testified that she reached her conclusion based on the totality of the circumstances as follows: Grievant is an adult referring to a teenager as sexy; inviting her to a cupcake shop; offering to pay for a game ticket; asking her the type of chocolate she liked; his initiation of the calls; the times of day and content of the messages sent; the frequency of messages within a nine (9) day period;" and her mother was not aware of the nature of the conversation. Her findings, as documented in her report, indicated while Grievant's conduct was inappropriate, there was no evidence of criminal activity upon which she could proceed." Dobbs testified about the procedures he followed while conducting the investigation. Dobbs stated that he conducted his analysis of communication through a forensic examination of Y.F.'s phone. He was not able to obtain permission from Grievant to examine his phone. Grievant had been advised by his Union representative not to release the phone. Dobbs testified that no criminal charges were filed against the student in the extortion case against Grievant because he (Grievant) failed to participate in the prosecution of the criminal case. Dobbs also confirmed that the state's attorney did not pursue criminal charges against Grievant regarding his conduct with Y.F. Dobbs testified that he was present during Grievant's Level 1 grievance meeting. During this meeting he heard Grievant admit that he stated "He would bang [Y.F.]" in
The transcript at p. 159 states a 90-day period. However, the undisputed record evidence is that the texting occurred over a period of nine (9) days. 9 Respondent's Exhibit 7.
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18 response to a text messaging survey. He prepared a summary investigatory report." After the report was completed, he kept the local police and the state of Florida Department of Children and Families (DCF) apprised of his progress. He also briefed the School District
Superintendent's Disciplinary Committee (Committee) on his progress and/or any decisions by law enforcement or social services agencies. He briefed the Committee on the frequency, content, time and duration of the text messages. Dobbs testified that the timing of the text messages was an issue because some were after the dinner hour or around midnight which is past what would be considered a reasonable time to be in contact with a student. On cross examination, Dobbs testified that he has investigated a number of inappropriate contact cases. The cases have included touching, language, phone calls, or text messaging. Dobbs testified about a former teacher (Mr. Riffinberg) who texted an under-aged female student with hundreds of messages that had nothing to do with school matters. He stated that some of the messages involved the student's appearance but there was not anything overtly sexual contained in the messages. The messages were sent after school and late hours. The student was 12 years old and she was the only victim that the School District was aware of in his case. Dobbs also investigated a case involving a bus driver who discussed sexual matters with a student on the bus and harassment on the internet by the driver with the same student. Dobbs also investigated the Jeffrey Lance (Lance) case. Lance's case involved
allegations of inappropriate contact via cell phone communications. On one day, he had texted a student 31 times. The evidence also showed that there were five (5) students involved. However,
Respondent's Exhibit 5.
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it was also established that Lance initiated what were deemed inappropriate messages after the
student had graduated. Lance received a 10-day suspension without pay.'! Dr. Jimmie Alan Scott (Scott) has been the Assistant Superintendent Services for the Escambia management, the public benefits, County School District for seven (7) years. compliance, discipline for Human Resource
He oversees hiring, risk Scott has worked in teacher, an
school system for over 25 years in various positions
such as custodian, he ultimately
football coach and principal. administrator.
Due to his pursuit of higher education,
He learned about the instant case when he received a call from Principal Williams. Director of Human Resource Services met with Williams conduct at PHS. and the
He and Keith Leonard, Thereafter,
it was determined
that an official investigation
needed to be initiated. Scott explained
that Grievant was suspended with pay with
because keeping an employee under investigation the investigation.
in pay status keeps them from interfering
Scott confirmed that Dobbs briefed the Committee
on his findings. Scott also
noted that DCF made a positive finding of "threat to harm." Scott continued that Grievant violated work rules because of the frequency of text
messages; time of day of the messages; and the content, for the most part, had nothing to do with school matters or the weightlifting team. Scott opined that Grievant's relationship. conduct was an attempt to
"groom" a student for an inappropriate
The extortion issue, in his opinion, was an even in their view, his communication
attempt by female students to extort Grievant because, with Y.F. was inappropriate.
The entire situation caused disruption and untenable circumstances Scott believes Grievant cannot
in the school, Scott stated. It was well known in the community.
be placed back in PHS. He explained that the Jessica Lunceford Act and similar legislation holds
11 The transcript at p. 97 shows that Dobbs testified that Lane was suspended for ten (10) days with pay. However, the disciplinary letter from the School District entered into evidence at Claimant Exhibit 4, reflects that Lance was suspended without pay for ten (10) days.
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education professionals to a higher standard than the average citizen. He stated that parents
expect that their children will be educated when they are sent to school and not groomed for an inappropriate relationship. According to Scott, when a teacher participates in this kind of activity, the teacher no longer holds the respect of the community. Scott testified further that the CBA does not prohibit termination on a first offense. He stated that there have been a number of terminations on a first offense where there was inappropriate action toward a student. He testified that as an example, the Rif.fenberg case involved a
grade female middle school student where there were hundreds of text messages
over a period of two (2) months. Additionally, Riffenberg attempted to meet the student after school. The Office of Professional Practices suspended his teacher certificate for five (5) years. Another example of a teacher, who had no prior disciplinary record, being terminated on a first offense of inappropriate contact with a student was the Veaszy case. Scott explained that the
Lance case is distinguishable from the instant case because of the probative evidence available in
the Lance case. In that case, the communications was with a student that had graduated and lasted for a period of two (2) days. There were no sexual statements made; no evidence that he had gone by a student's house and there were no attempts to meet with a student. There were no copies of the text messages from current students and the statements made by other students were ambiguous. He explained that the decision to suspend Lance for 10-days was based on cell phone records showing communication over two (2) days and a limited number of messages. Scott testified that the federal/state compliance package which contains the rules regarding ethical conduct for educators is reviewed and signed each year by School District employees. He testified that the Committee ultimately concluded that Grievant's conduct was sufficient to bring disgrace upon the School District. Scott acknowledged that Grievant
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21 demonstrated remorse during the Level 2 healing. However, in his view, Grievant would not have self-reported but for the lost phone. As a result of the Committee's determination, Grievant received a letter dated January 13, 2011 from the School Board notifying him that the superintendent would recommend his termination to the School Board at its January 18, 2011 meeting. On January 19, 2011, Grievant was notified that the School Board approved his termination to be effective January 19,2011. During the Union's case in chief, Vincent was recalled to testify about the merits of the case. He testified that the Employer's action was challenged based on a violation of Grievant's due process and failure to follow progressive discipline. In his view, because Grievant selfreported the incident and there was no actual sexual contact, a 10-day suspension was more than appropriate. Under questioning by the Board, Vincent stated that Grievant admitted to the "bang" response during the Level 1 grievance hearing. He stated that he believed Grievant was cooperative during the School Board's investigation. Grievant did not turn over his phone because he advised him not to do so since Y.F.'s phone was already in their custody. Next, the Grievant testified that he is currently employed at Pensacola Crown Plaza as a bellman and van driver for Margaritaville. and 8 year-old daughter. He is currently divorced and has a 16 year-old son
His total tenure with the Escambia County School District was 14
years. He had been a teacher for a total of 22 years including teaching in Alabama for three (3) years. Over the years he has taught science and physical education. He has coached football; basketball; boys and girls weightlifting; baseball; boys and girls track and field; and boys and girls tennis. Grievant estimated that he has taught about 1500 girls over the years and never
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22 received any complaints. He left all of his past positions in good standing; has never been disciplined and received performance evaluations of satisfactory or above. Grievant provided his account of the circumstances surrounding his interaction with Y.F. He confirmed that Y.F. approached him about tutoring and the girls weightlifting team. He spoke with her mother before setting up any dates for tutoring and spoke to Y.F. on her cell phone with her mother's permission. Grievant testified that he set up the tutoring schedule in the morning because of his coaching schedule in the afternoon. He thought meeting at a cupcake shop on a Saturday for tutoring might be a good idea due to her being out on suspension the prior week. He
acknowledged that he received two (2) unsolicited photos from Y.F. In one photo she was fully clothed and the other one was of her newly manicured fingernails. Grievant explained that Y.F. would send mass text messages in the form of survey questions (she testified that forwards would go to all in her phone contacts). One question asked, "How would you describe [Y.F.]?" The second survey question asked if the recipient of the message wanted to "bang" or "pass" Y.F. He admitted to responding "sexy" to the first question and "bang" to the second question. He stated that he immediately regretted sending the messages and stated that it was done on the spur of the moment. Grievant testified that he recognized that it was inappropriate. He stated that he never did it before and would never do it again. Grievant testified that he decided not to meet the blackmailers because the more he thought about it he concluded that it was not the best thing to do. blackmailers stated "$50 or your life." He recalled that the
Grievant denied offering any money to retrieve the
phone. He explained that he was hoping to get the phone back to keep the students from passing
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23 the information on to other students or people. He stated that at the time he reported the situation to Williams, he had no idea what the extortionists would do with the phone. Grievant did not dispute that his behavior with Y.F. was inappropriate. When he reported the situation to Williams, he presumed he would be reprimanded but did not think he would be terminated. He stated that he would never repeat this behavior. On cross examination, Grievant acknowledged that even though he immediately realized that the "sexy" and "bang" responses were the wrong thing to do, he did not contact the principal at that point in time. He stated that he should have worded the "sexy" response differently by instead replying that she was beautiful or pretty. Grievant clarified that the survey question to which he responded "sexy" inquired, "In one word, how would you describe me?" Grievant testified that he felt he needed to text her even though she was in his class every day because sometimes "things would come up." They were having difficulty coordinating a meeting time during the week, he said. Grievant testified that he and Y.F. had discussed the fact that she liked sweets, so he suggested that her mom drive her to the cupcake shop on a Saturday mormng. He admitted that he did not tell Y.F. not to send photos after he received the photos from her. Grievant explained that earlier in the day on Friday, he received a call. The individual on the phone asked him for his former wife's phone number.l'' He thought the caller was a student or the parent of one of his wife's students. Therefore, he gave the caller his wife's cell phone number. He later learned that the extortionist, in fact, called his former wife. Later that night while he was riding with Schneider, the extortionists called him commenting that they knew the contents of the text messages. Grievant reiterated that the callers demanded, "$50 or your life."
At the time of this incident, Grievant was married. He and his wife have since divorced.
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24 Grievant continued that although he made an arrangement to meet the extortionists for the phone on Saturday morning, he never intended to pay them money for it. Grievant admitted that he considered harming himself after he and his wife argued after she learned about his behavior with Y.F. He testified that he thought of harming himself because the situation did not appear that it was going to be resolved; he reflected that his deceased parents would be disappointed in his behavior; and he was overwhelmed with emotion. Grievant acknowledged that he probably should have called the police on Friday night but did not do so because he was just not thinking rationally. He believed that rumors about this incident were circulated throughout PHS. As a result, his former wife withdrew their son, who was also a 9th grade student and the football team quarterback, from PHS. Grievant testified further that although he told Y.F. in a text message "not to won)' about" the make-up work, he was not making a special exception for her. He stated that he has reduced the workload for students in the past when they were having a bad time. Stating that he made another bad judgment call, he agreed that telling Y.F. not to worry about the make-up work was inconsistent with tutoring a student that needed assistance. Grievant admitted that it was also bad judgment to go to her house to deliver the remainder of his birthday cake, that his then wife bought him, on a Sunday afternoon. He admitted that even though he could have taken the leftover cake home or shared it with other students the next day, he took it to Y.F. He explained that prior to going to Y.F.'s home he inquired from Y.F. whether her mom would be agreeable to his coming by. According to Grievant, Y.F. informed him that it was okay and that she also had friends there. Grievant agreed that 14 year-old girls are impressionable and that the relationship between a teacher and student is special. He believes he violated the trust required by that
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25 relationship but feels there should be a lesser punishment imposed based on a perfect record in 22 years. Grievant stated that he made a series of bad judgments over the nine (9) days at issue but believes he could still be an effective teacher at any school including PHS. He is hopeful that his entire career is not over due to his poor decisions. He noted that due to the notoriety among the students at the school, it would be best that he not be placed back at PHS.
POSITIONS OF THE PARTIES The Employer argues that: • The Employer's policies were reasonably related to the ordinary functions of the District. The objectives of the policies at issue are to create an environment that fosters public trust, personal and institutional integrity, high levels of competence and accountability in a positive atmosphere characterized by integrity, fairness, respect, and caring. The Respondent's policies were developed with the Union's participation. Grievant had notice as to possible discipline or consequences that would result from his behavior. Grievant's September 9, 2010, signature on the Federal/State Compliance Packet 2010 establishes that he was on notice of the unique relationship between a student and teacher; the fact that it is a relationship of trust; and the consequences for violating the relationship. There was no testimony to refute that Grievant was on notice that his misconduct would violate School Board and governmental policies. Respondent conducted a thorough investigation into whether Grievant, in fact, violated School Board and state policies and procedures, prior to administrating discipline. It is undisputed that Respondent immediately began its investigation on the first business day after learning that Grievant was a potential victim in an extortion plot and engaged in misconduct with Y.F. Respondent assigned a well-qualified investigator to the case and contacted local law enforcement and the DCF. It is also undisputed that the School Board worked to gather all evidence available with the exception of Grievant's cell phone and statement which he refused to provide. The Respondent's investigation was conducted fairly and objectively by assigning a neutral investigator to gather all the necessary evidence involving both the extortion attempt and the misconduct alleged against Grievant. In addition, the Board sought out the assistance of the local police department and the DCF. This investigation provided evidence that Grievant was guilty of violating Respondent's policies. There was no effort by Grievant to discredit the investigation in this case. The testimony and record overwhelmingly proves why Grievant cannot return as a teacher in Escambia County
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26 School District given his acknowledged inappropriate relationship with a 14 year-old student. • Grievant received equal treatment. The Riffenburg case is most similar to Grievant's case. Respondent treated Grievant similarly where Riffenburg was terminated for sending hundreds of text messages to a 7th grade student and attempted to go to her house. Riffenburg's teaching certificate was revoked for five (5) years by the state of Florida. According to Scott's testimony, there have been no other cases where teachers have engaged in "grooming" behavior with a student and Grievant's activity only stopped after he was involved in an extortion attempt. The degree of discipline was reasonably related to the seriousness of Grievant's numerous egregious acts of misconduct. Grievant does not challenge the fact that he should be disciplined. Rather, he takes issues with the severity of the discipline as he fully understands that his conduct was not proper. Because of his 22 years as a teacher, Grievant should have known that his conduct violated the trust between teacher and student. Grievant has acknowledged that his experience put him in the position of understanding this concept more than a first year teacher would have. Grievant conceded that he could not now go back to the Pensacola High School where he taught because the students have knowledge of his misconduct with Y.F. In fact, his former wife had to withdraw his son from the school because of the stories spread throughout the school. There is no classroom in any school in the Escambia County school system in which it could risk placing Grievant given his admitted misconduct. Therefore, termination is the appropriate level of discipline to impose. Because Grievant conceded that he could not now go back to PHS, the Arbitrator is without the authority to return the Grievant to his previous status. Grievant's request for relief in the form of loss pay and benefits lacks any record foundation to support such relief. The grievance should be denied because termination in this case is well supported by just cause.
The Union argues that: • The Employer must prove by clear and convincing evidence that it had just cause to discharge Grievant. Because the allegations in this case allege moral turpitude and are personally and professionally stigmatizing, no standard less than clear and convincing evidence is required in this case. The School Board failed to meet the seven (7) tests of just cause by failing to prove that Grievant is guilty of any serious wrongdoing and has clearly subjected him to "unduly harsh, unfair, biased, prejudiced, or arbitrary action," by failing to follow the principles of progressive discipline. In addition, the discipline imposed was not reasonably related to the seriousness of his conduct and his outstanding employment record.
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27 The School Board failed to demonstrate that Grievant violated the Escambia County School District Employee Code of Ethics concerning the Improper Conduct Regarding Students provision. The focus of the Avoiding Appearances of Impropriety provision is appearances. It prohibits a teacher from engaging in conduct that is likely to create a perception of an improper relationship. The texting was private, consensual and mutual, and therefore unlikely to create any perception of an improper relationship. Even if it were conceded that the extent of the texts and their timing, if known, would raise the perception that the relationship was improper, there could be no appearance of impropriety here since the texting was private communication between Grievant and Y.F. Nor does dropping off a cake at Y.F.'s house and tutoring her in the presence of his son create in the mind of a reasonable observer that the relationship or interaction was improper. The record is clear that Grievant never gave Y.F. any gifts; was never alone with her or suggested that they be alone; and never touched her.
The School Board has inappropriately applied Rule 6B-l.006 and Rule 6B-l.OOl. Rule 61B-l.006 is relevant to the licensing function of the Department of Education. And while a school board is authorized to suspend or dismiss a teacher at any time during the school year for misconduct, among other things, the misconduct must be so serious as to impair the individual's effectiveness in the school system. In this case, the School Board did not allege Grievant had lost his effectiveness as an educator in its notice terminating him, and therefore should not be allowed to raise it in this proceeding. Even if misconduct is considered by the Arbitrator, the record is completely devoid of any evidence or testimony that Grievant's effectiveness as an educator in the school district has been impaired. The School Board has failed to present any evidence that Grievant's acts were harmful to Y.F.'s learning, or her mental or physical health or safety; that he exploited his relationship with Y.F. for any type of gain or advantage; or that he offered her anything to obtain special advantage as required to establish a violation of Rule 6B-l.006(3). The Board failed to demonstrate that Grievant did not strive to achieve and sustain the highest degree of ethical conduct as required by Ethical Rule 6B-l.OOl(c). Grievant was honest with his superiors about his inappropriate behavior. His "sexy" and "bang" responses were impulsive. As for the number of texts and timing, it was of short duration-only nine (9) days. This short, rather mild deviation from accepted standards of conduct hardly puts Greivant in violation of the rule and does not warrant termination. The only way one could conclude that Grievant should be terminated is if one is certain that he is likely to commit a serious offense against a student in the future. The testimony of Detective Gooden that Grievant was "grooming" Y.F. is totally without foundation. The offense of grooming has not been cited as a ground for the School Board's action against Grievant, and should not be heard now. Fairness requires that Grievant be judged on what he did, not what he might have done.
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The penalty has not been imposed in a consistent manner. In August, 2011, the School Board suspended without pay for ten (10) working days a teacher with six (6) years of tenure and who had been shown to have inappropriate contact with several current and former students, including sending text messages of a flirtatious nature and giving them gifts from Victoria's Secret. For girls in the age group he preyed on, his conduct was egregious. Clearly Grievant should not have been dealt with more harshly than this teacher, which is exactly what happened here. The School Board failed to apply the principal of progressive discipline as required by the CBA. The School Board has failed to prove that dismissal was the lowest level of correction action it could take to prevent future violations of the rule. Prior to this incident, Grievant had a perfect employment record despite 22 years of working with young girls, with much of that time in close contact with them as a coach. There is no evidence that he tried to hide or deny his actions. He told his wife, his coaching colleague, and his principal, as soon as his actions were questioned by the students who obtained Y.F.'s phone. The evidence proves unequivocally that Grievant has admitted to his actions, taken responsibility for them and it is not likely that the behavior would be repeated. Grievant was not put on clear notice that his conduct put him at risk of losing his job. There is no rule against teacher/student texting or that otherwise defines what communication between a student and teacher are prescribed. Nor, is there any warning that excessive or sexually suggestive texting will result in harsh consequences. The Escambia County School District Employee Code of Ethics does, however, provide that "[d]ating relationships between a School District employee and a student are strictly prohibited." If the School Board wanted to prohibit texting as conducted in this case, it could have easily done so in the same way it did with dating relationships. However, it did not. Where just cause is the applicable standard, an employee cannot be required to guess what conduct is prohibited, or what discipline will be meted out for a transgression.
I. Quantum of Proof
The Union argues that the standard of proof should be clear and convincing evidence because the dismissal charges were principally based upon alleged moral turpitude and are personally and professionally stigmatizing. Arbitrators tend to apply a heightened quantum of proof "in cases involving criminal conduct or stigmatizing behavior. .. typically [applying] a 'clear and convincing evidence' standard, with some arbitrators imposing the 'beyond a Case No. 33 39000376 11
reasonable doubt' standard".13 In this case, the Grievant was not charged with a Clime but because of the nature of the charge, it can certainly have a stigmatizing effect on Grievant's career and ability to obtain employment in the teaching profession. Thus, I conclude that the evidence to support the charges against Grievant must be clear and convincing.
II. Burden of Proof The Employer has the burden of proving that the discharge of an employee was for just cause. The just cause standard requires that the arbitrator first find the existence of sufficient proof that the employee engaged in the conduct for which he or she was discharged. Second, the arbitrator must determine whether the Grievant's conduct warranted the discipline imposed. Factors to be considered include but are not limited to a requirement that the employee has notice that a particular offense or misconduct will result in discipline or discharge; there is a nexus between the employee's misconduct and the punishment imposed; and that there is no disparate treatment in the manner in which discipline is administered. In this case, Grievant admitted that he engaged in inappropriate conduct with a student. The record evidence is clear and convincing that the nature of this inappropriate conduct violated the State and School District Code of Conduct for teachers. Specifically, I find that Grievant violated the Escambia County School District Employee Code of Ethics and the Fla. Admin. Code Rules 6.B-1.001 and 6.B-1.006. As discussed in more detail below, Grievant's conduct demonstrates that he failed to avoid the appearances of an improper relationship with a student; exercised poor professional judgment in his interaction with a student; failed to protect a student from conditions harmful to her mental safety and created an embarrassing situation for the student. Grievant has violated the public trust bestowed upon teachers and such conduct has
E1kouri & E1kouri, How Arbitration Works, 6th Edition, 950-951 (BNA 2003).
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30 impaired his ability to be effective in the school system. The only question that remains is whether the penalty imposed here fits the offense. Having considered the well-drafted arguments of both parties, for the reasons set forth below, I conclude that the penalty imposed was reasonable based on the facts of this case. First, Grievant had clear notice that violating the Code of Ethics could lead to dismissal for violating various laws, rules and regulations. On September 9,2010, Grievant signed two (2) acknowledgements that he received notice of the rules and understood that he must comply with the rules. This language is printed in all capital letters just above the teacher signatures. Additionally, the Escambia County School District Employee Code of Ethics enforcement provision states that violation of the rules may result in "disciplinary actions including
suspension or dismissal." Furthermore, rule 6B-l.006, which Grievant acknowledged receipt of, states "Violation of any of these principles shall subject the individual to revocation or suspension of the individual educator's certificate, or the other penalties as provided by law." Grievant has been a teacher for over 22 years. Certainly he was familiar with the rules and consequences for violating them. He even testified during the arbitration heating that because of his experience, he would be in a better position to know what conduct between a student and teacher is inappropriate than a new teacher. Therefore, it is concluded that Grievant was on
sufficient notice of the rules and consequences for violating them. Second, the nature of the offense in this case was quite severe. Severe offenses warrant the imposition of harsher penalties. The School District's rule regarding avoiding the appearance of impropriety states, "School District employees shall not engage in any conduct that is likely to create in the minds of reasonable impartial observers the perception that a relationship or interaction with one or more students is abusive, exploitive or otherwise improper." The Union
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31 argues no appearance of impropriety can be concluded because the communication between Grievant and Y.F. was private. This argument is rejected. The record evidence is clear that the communication did not remain private. As with most improper conduct, it starts out cloaked in privacy and secret but if and when it comes to light, the consequences are such that it clearly discloses impropriety. The key language that is applicable here is "any conduct that is likely to create in the minds of reasonable impartial observers the perception that a relationship is improper." Any reasonable person would conclude that it is improper for a teacher to engage in a social relationship with a student that involves sexual overtones and late night communication. The Grievant's claim that the "sexy" and "bang" comments were impulsive does not excuse his behavior. Grievant made two (2) direct statements to Y.F. containing sexually
explicit remarks. In the first response, he described her as sexy. In the second response, at a different point in time, he suggested that he wanted to have sex with her in the "bang" response. This does not support his contention that the comments were impulsive. Grievant crossed a delicate line between teacher and student that should never be crossed and undermined the trust that is critical for a healthy teacher/student relationship. Even the would-be extortionists who were Y.F.'s peers were able to perceive that something was improper about the communication between Grievant and Y.F. Taken as a whole, the facts upon which these conclusions are based establishes that Grievant violated the rules at issue and that the nature of the violations were quite severe. The Union argued that the District has failed to prove that dismissal was the lowest level of corrective action that could be taken to prevent future violations of the rules by Grievant. This argument is unpersuasive. Article XI. 2. A of the CBA states, "For purposes of this agreement, 'Progressive' discipline shall mean discipline whose intention is to correct unacceptable or non-
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32 productive behavior. Progressive discipline anticipates that corrective action for a first offense will begin at the lowest level most appropriate to the behavior (verbal warning, conference, counseling, letter of reprimand, suspension, suspension without pay, dismissal) and proceeding to higher, more intrusive discipline should the desired behavior not be achieved." It is well settled that the purpose of progressive is to correct an employee's improper conduct and the language in the CBA contemplates that the behavior is correctible. However, as discussed in the County of Washington arbitration case cited by the Union, "progressive discipline is not necessary when the severity of misconduct or other circumstances demonstrate that lesser forms of discipline would be futile in terms of working a correction in behavior.,,14 In this case, it does not appear that any lesser penalty would correct Grievant's conduct. Grievant did not make one bad decision; he consistently exercised poor judgment in various situations over a number of days. Had Grievant made one poor or impulsive choice that was selfcorrected, one might be more inclined to conclude that a lesser penalty could correct his behavior. Here, but for the extortion attempt, it is not evident that Grievant's inappropriate interaction with Y.F. would have ended. The overwhelming weight of the evidence reflects that the interaction evolved from discussions about tutoring and the weightlifting team to excessive communication outside the timeframe for school or extracurricular activities about personal and intimate matters including explicitly sexual remarks. The Analysis of Communication Documentation report which shows the texting activity between Grievant and Y.F. tells a story. The report reveals that Grievant was communicating with Y.F. up to almost midnight each night over several days. Grievant was even texting with Y.F. throughout the school day. In particular, on Tuesday, October 5, 2010, Grievant sent Y.F. 11 text messages between 10:17 p.m. and 11:10 p.m. with no responses from Y.F. The next
122 LA 725, 731 (Arb. Befort 2006).
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33 morning, he sent Y.F. a text message at 9:15 a.m. and at 9:31 a.m. She did not respond so he placed a phone call to her at 10:00 a.m. Thereafter, there was constant texting throughout the remainder of the day up to 11:52 p.m. On Friday, October 8, 2010, after sending Y.F. a 12:25 a.m. text message that he got her some chocolate, he sent her a text message at 11:41 a.m. Not realizing that her cell phone was lost at this time, he continued to send her messages without her responding until 4:15 p.m. This pattern shows that Grievant was abnormally focused on Y.F. This evidence combined with excusing make-up work; offering to purchase a game ticket; taking cake to her home and buying her chocolate demonstrates an escalation of a personal relationship that was clearly improper. The fact that Y.F. was not bothered by this interaction, for the most part, is of no consequence. At the time, she was a 14 year-old child in her formative years who, as with most children of that age, was not fully capable of knowing the impropriety of the situation. That is why teachers are supposed to exercise better judgment than the student. With regard to Grievant's judgment, he testified during the arbitration hearing that instead of responding to the survey question that Y.F. was "sexy", he should have responded that she was beautiful or pretty. No, he should not have responded at all. In fact, he should have put Y.F. on notice not to communicate with him in that manner. The fact that he still does not seem to understand the gravity of his inappropriate behavior with a student convinces this Arbitrator that a disciplinary action short of dismissal would not serve to correct his behavior. Unlike Arbitrator Rennovich ruled in the Christofferson arbitration, there is sufficient evidence present in this case to conclude that Grievant might violate the rules if placed back in a teaching position. 15
15 Escambia Education Association and the School District of Escambia County, AAA Case No. 33 39000128 11 (October 5,2011).
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34 Third, I find that there is no disparate treatment in the manner in which discipline was administered. The Union argued that the Lance disciplinary case is very similar to the instant case. In that case, the School Board suspended a male teacher, with six (6) years of tenure, for ten (10) days due to his exchanging text messages with female students. However, that case is distinguishable from the instant case. In the Lance case, the documentary evidence showed that he began inappropriate communication with a student after she graduated. Thus, the
student/teacher relationship no longer existed. There were no overtly sexual comments made and no evidence that Lance attempted to meet with any student (current or former) outside of school. The allegations made by other current students were based on mostly ambiguous statements and did not reveal the documentation of any inappropriate messages between Lance and current students. Gifts that were purchased from Victoria's Secret for the student helpers were lotions, body spray and lip gloss items. These items were purchased by Lance's wife on his behalf in recognition for their assistance. Here, there was clearly an existing student/teacher relationship with a cun·ent student under the age of 18. There were explicitly sexual responses made to a current student. Grievant delivered cake to a student outside of school activity hours. As discussed above, the totality of the circumstances demonstrate that Grievant was focused on Y.F. and engaging in inappropriate social contact with her that was escalating in nature. Additionally, the Employer provided unrebutted testimony that other teachers that have violated these rules have been terminated as in the Riffenberger and Veasey cases. Therefore, there is sufficient evidence to establish that discipline has been imposed in a consistent manner. Fourth, the Grievant's length of employment as a teacher and coach works against him under the circumstances of this case. Even though the Grievant was quite contrite, apologetic,
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35 and has demonstrated satisfactory performance on his job, after over 20 years of teaching experience, he was in a position to clearly know the consequences of such interaction with a student. He did not make one lapse in judgment. He repeatedly exercised poor judgment over a period of nine (9) days which was interrupted only by the discovery of the cell phone by other students. While each contact was inappropriate viewed individually, taken as a whole, the
contacts demonstrate an escalation of personal contact with a student that is sufficient to give the Employer grave concern as to whether the Grievant can be trusted in the school system. The Employer has a duty to protect the children within its care during the school day. Based on the totality of the circumstances present here, placing the Grievant back in the school system would be a breach of that duty. AWARD The Union invoked arbitration in a timely manner. However, for the reasons set forth above, the termination was for just cause and the grievance is denied.
Dated: July l3, 2012 Jeanne Charles Wood, Arbitrator
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