IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Central Valley School District, : Appellant : : v. : No. 1323 C.D. 2021 : SUBMITTED: October 11, 2022 Central Valley Education Association, : PSEA/NEA :
BEFORE: HONORABLE CHRISTINE FIZZANO CANNON, Judge HONORABLE LORI A. DUMAS, Judge HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY SENIOR JUDGE LEADBETTER FILED: November 7, 2022
Central Valley School District appeals from an order of the Court of Common Pleas of Beaver County denying the District’s petition to vacate the arbitration award that sustained the grievance of Rebecca Hall and reinstated Hall to her teaching position with the District. Based on our limited and highly deferential standard of review, we affirm. The facts as determined by the arbitrator are as follows.1 In the fall of 2019, Hall was a third grade teacher at Todd Lane Elementary School in Monaca,
1 It is well established that an “arbitrator is authorized to make findings of fact to inform his interpretation of the [collective bargaining agreement].” Millcreek Twp. Sch. Dist. v. Millcreek Twp. Educ. Support Pers. Ass’n, 210 A.3d 993, 1006 (Pa. 2019). “An arbitrator’s findings of fact are not reviewable on appeal, and as long as he has arguably construed or applied the collective bargaining agreement, an appellate court may not second-guess his findings of fact or interpretation.” Coatesville Area Sch. Dist. v. Coatesville Area Teachers’ Ass’n/Pa. State Educ. Ass’n, 978 A.2d 413, 415 n.2 (Pa. Cmwlth. 2009). See also Millcreek, 210 A.3d at 1014. Pennsylvania, and had been employed by the District or one of its predecessors for over 15 years. On or about October 20, 2019, the District became aware of a video posted to the social media platform TikTok in which Hall appeared with her minor daughter, a ninth grade student in the District at the time. The video lasted approximately 15 seconds and was accompanied by a song with explicit lyrics, including several offensive words and referencing a sexual act. Hall can be seen at two separate points in the video lip-syncing several lines of the song and using “suggestive hand and body motions.” Original Record (O.R.), Statement of Charges, at 544. It is undisputed that the video was recorded while Hall was off duty in her home, it was not made using any District equipment, and there is nothing in the video identifying Hall as a District employee or utilizing any indicia of the District. It is further undisputed that Hall instructed her daughter not to post the video to social media after it was filmed. Once Hall learned that her daughter had, in fact, posted the video to TikTok, Hall told her daughter to remove it but failed to take affirmative steps to ensure its immediate removal. Hall was provided a Loudermill hearing,2 after which she was suspended without pay effective November 1, 2019. The District subsequently issued a Statement of Charges formally charging Hall with immorality, incompetency, intemperance, and willful neglect of duties in violation of Section 1122(a) of the Public School Code of 1949 (School Code)3 based upon her appearance in the TikTok video. The Statement of Charges explained:
2 Under Cleveland Board of Education v. Loudermill, 470 U.S. 532 (1985), “due process requires that a public employee must receive a pre-termination hearing.” Bonatesta v. N. Cambria Sch. Dist., 48 A.3d 552, 554 n.3 (Pa. Cmwlth. 2012).
3 Act of March 10, 1949, P.L. 30, as amended, 24 P.S. § 11-1122(a). That section provides, in pertinent part: (Footnote continued on next page…)
2 You engaged in such unacceptable and outrageous behavior when you engaged in the above referenced inappropriate conduct, which was widely disseminated to the general school community, which has cast the [] District and yourself in a negative light and portrayed yourself as a negative role model for the students and families of the [] District based upon your conduct and behavior described herein.
O.R., Statement of Charges, at 545. The Statement of Charges also notified Hall that the District would recommend to the District Board of School Directors that she be dismissed from her teaching position. The School Board voted unanimously to terminate Hall’s employment at its next meeting, and a Termination Notice was issued to Hall on December 9, 2019. The Association filed a grievance on Hall’s behalf alleging that the District violated the parties’ collective bargaining agreement (CBA) by suspending her without pay and subsequently terminating her employment without just cause. The case proceeded to arbitration with hearings spanning multiple days, during which both parties presented the testimony of multiple witnesses. Notably, the District presented testimony from the following witnesses, all of whom were District employees: Sam Cercone, the District’s Director of Athletics and Transportation; Shawn McCreary, the High School Principal; Edward Eimiller, the District’s
The only valid causes for termination of a contract heretofore or hereafter entered into with a professional employe shall be immorality; incompetency; unsatisfactory teaching performance . . . ; intemperance; cruelty; persistent negligence in the performance of duties; wilful neglect of duties; . . . on the part of the professional employe[] . . . .
Id.
3 Director of Technology; Christina Feragotti, the Principal of Todd Lane Elementary School where Hall worked; Erin Park, the District’s Special Education Director; and Dr. Nicholas Perry, the District’s Superintendent. All of the District’s witnesses testified that they believed Hall’s actions with respect to the TikTok video offended the morals of the community. Hall testified on her own behalf, as did her daughter. In addition, three of Hall’s friends testified that they were not offended by the video and/or that they had no concerns about Hall’s ability to serve as a positive role model following the video. Notably, two of Hall’s witnesses had lived in the District for approximately 20 years. The arbitrator issued an opinion and award on April 16, 2021, recounting in extensive detail the testimony of each of the above witnesses. The arbitrator ultimately found that the District did not establish just cause for Hall’s suspension and termination and, therefore, sustained the grievance. More specifically, he found that the District failed to meet its burden of establishing that Hall’s actions offended the morals of the community, a requirement for the charge of immorality under Section 1122(a) of the School Code. The arbitrator noted that the only witnesses to testify on behalf of the District were its own employees, such as administrators and teachers, rather than members of the School Board who are elected by the community. Further, the arbitrator stressed that the District failed to demonstrate that the video was widely disseminated in the community and that it never would have been viewed absent the actions of Hall’s daughter, whom he described as presenting “a nonchalant or indifferent attitude toward her mother’s wishes and interests” at the hearing. Reproduced Record at 99a. He noted that while Hall’s participation in the video may have been inappropriate or unprofessional, this was not enough to demonstrate a violation of Section 1122(a) of the School Code.
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IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Central Valley School District, : Appellant : : v. : No. 1323 C.D. 2021 : SUBMITTED: October 11, 2022 Central Valley Education Association, : PSEA/NEA :
BEFORE: HONORABLE CHRISTINE FIZZANO CANNON, Judge HONORABLE LORI A. DUMAS, Judge HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY SENIOR JUDGE LEADBETTER FILED: November 7, 2022
Central Valley School District appeals from an order of the Court of Common Pleas of Beaver County denying the District’s petition to vacate the arbitration award that sustained the grievance of Rebecca Hall and reinstated Hall to her teaching position with the District. Based on our limited and highly deferential standard of review, we affirm. The facts as determined by the arbitrator are as follows.1 In the fall of 2019, Hall was a third grade teacher at Todd Lane Elementary School in Monaca,
1 It is well established that an “arbitrator is authorized to make findings of fact to inform his interpretation of the [collective bargaining agreement].” Millcreek Twp. Sch. Dist. v. Millcreek Twp. Educ. Support Pers. Ass’n, 210 A.3d 993, 1006 (Pa. 2019). “An arbitrator’s findings of fact are not reviewable on appeal, and as long as he has arguably construed or applied the collective bargaining agreement, an appellate court may not second-guess his findings of fact or interpretation.” Coatesville Area Sch. Dist. v. Coatesville Area Teachers’ Ass’n/Pa. State Educ. Ass’n, 978 A.2d 413, 415 n.2 (Pa. Cmwlth. 2009). See also Millcreek, 210 A.3d at 1014. Pennsylvania, and had been employed by the District or one of its predecessors for over 15 years. On or about October 20, 2019, the District became aware of a video posted to the social media platform TikTok in which Hall appeared with her minor daughter, a ninth grade student in the District at the time. The video lasted approximately 15 seconds and was accompanied by a song with explicit lyrics, including several offensive words and referencing a sexual act. Hall can be seen at two separate points in the video lip-syncing several lines of the song and using “suggestive hand and body motions.” Original Record (O.R.), Statement of Charges, at 544. It is undisputed that the video was recorded while Hall was off duty in her home, it was not made using any District equipment, and there is nothing in the video identifying Hall as a District employee or utilizing any indicia of the District. It is further undisputed that Hall instructed her daughter not to post the video to social media after it was filmed. Once Hall learned that her daughter had, in fact, posted the video to TikTok, Hall told her daughter to remove it but failed to take affirmative steps to ensure its immediate removal. Hall was provided a Loudermill hearing,2 after which she was suspended without pay effective November 1, 2019. The District subsequently issued a Statement of Charges formally charging Hall with immorality, incompetency, intemperance, and willful neglect of duties in violation of Section 1122(a) of the Public School Code of 1949 (School Code)3 based upon her appearance in the TikTok video. The Statement of Charges explained:
2 Under Cleveland Board of Education v. Loudermill, 470 U.S. 532 (1985), “due process requires that a public employee must receive a pre-termination hearing.” Bonatesta v. N. Cambria Sch. Dist., 48 A.3d 552, 554 n.3 (Pa. Cmwlth. 2012).
3 Act of March 10, 1949, P.L. 30, as amended, 24 P.S. § 11-1122(a). That section provides, in pertinent part: (Footnote continued on next page…)
2 You engaged in such unacceptable and outrageous behavior when you engaged in the above referenced inappropriate conduct, which was widely disseminated to the general school community, which has cast the [] District and yourself in a negative light and portrayed yourself as a negative role model for the students and families of the [] District based upon your conduct and behavior described herein.
O.R., Statement of Charges, at 545. The Statement of Charges also notified Hall that the District would recommend to the District Board of School Directors that she be dismissed from her teaching position. The School Board voted unanimously to terminate Hall’s employment at its next meeting, and a Termination Notice was issued to Hall on December 9, 2019. The Association filed a grievance on Hall’s behalf alleging that the District violated the parties’ collective bargaining agreement (CBA) by suspending her without pay and subsequently terminating her employment without just cause. The case proceeded to arbitration with hearings spanning multiple days, during which both parties presented the testimony of multiple witnesses. Notably, the District presented testimony from the following witnesses, all of whom were District employees: Sam Cercone, the District’s Director of Athletics and Transportation; Shawn McCreary, the High School Principal; Edward Eimiller, the District’s
The only valid causes for termination of a contract heretofore or hereafter entered into with a professional employe shall be immorality; incompetency; unsatisfactory teaching performance . . . ; intemperance; cruelty; persistent negligence in the performance of duties; wilful neglect of duties; . . . on the part of the professional employe[] . . . .
Id.
3 Director of Technology; Christina Feragotti, the Principal of Todd Lane Elementary School where Hall worked; Erin Park, the District’s Special Education Director; and Dr. Nicholas Perry, the District’s Superintendent. All of the District’s witnesses testified that they believed Hall’s actions with respect to the TikTok video offended the morals of the community. Hall testified on her own behalf, as did her daughter. In addition, three of Hall’s friends testified that they were not offended by the video and/or that they had no concerns about Hall’s ability to serve as a positive role model following the video. Notably, two of Hall’s witnesses had lived in the District for approximately 20 years. The arbitrator issued an opinion and award on April 16, 2021, recounting in extensive detail the testimony of each of the above witnesses. The arbitrator ultimately found that the District did not establish just cause for Hall’s suspension and termination and, therefore, sustained the grievance. More specifically, he found that the District failed to meet its burden of establishing that Hall’s actions offended the morals of the community, a requirement for the charge of immorality under Section 1122(a) of the School Code. The arbitrator noted that the only witnesses to testify on behalf of the District were its own employees, such as administrators and teachers, rather than members of the School Board who are elected by the community. Further, the arbitrator stressed that the District failed to demonstrate that the video was widely disseminated in the community and that it never would have been viewed absent the actions of Hall’s daughter, whom he described as presenting “a nonchalant or indifferent attitude toward her mother’s wishes and interests” at the hearing. Reproduced Record at 99a. He noted that while Hall’s participation in the video may have been inappropriate or unprofessional, this was not enough to demonstrate a violation of Section 1122(a) of the School Code.
4 The Award reinstated Hall to her position as a teacher with the District and directed that she be made whole for all lost earnings, seniority, and benefits. The District then petitioned the trial court to vacate the award setting forth 15 bases for vacation, including that the arbitrator’s decision: does not reflect a proper interpretation of the CBA; incorrectly applies the CBA’s definition of just cause; does not satisfy the essence test; and is contrary to law because it creates a new standard for immorality. In its October 25, 2021, opinion, the trial court specified that it did not agree with the arbitrator’s holding that the District had not presented substantial evidence of the moral values of the community because its witnesses all held administrative positions in the District and, specifically, that it failed to call any School Board members to testify. Nonetheless, the trial court found substantial evidence to support the arbitrator’s determination based on the lack of wide distribution of the video or publicity or community controversy surrounding it, and the fact that nothing in the video could connect the participants with the district or identify Hall as a teacher. We agree with this analysis. Simply put, it is not enough to prove that an act was committed which had the theoretical potential to offend community standards or to have a bad influence on students. Rather, the act must be done in such a circumstance as to pose a significant likelihood of doing so.4
4 It is undisputed that to establish a charge of immorality under Section 1122(a) of the School Code, a district must prove “(1) that the alleged immoral act actually occurred; (2) that the act offends the morals of the community; and (3) that the act sets a bad example for students.” Sch. Dist. of Phila. v. Jones, 139 A.3d 358, 365 (Pa. Cmwlth. 2016) [quoting McFerren v. Farrell Area Sch. Dist., 993 A.2d 344, 353-54 (Pa. Cmwlth. 2010)]. Like the trial court, we interpret the arbitrator’s determination as a finding that the video, because of its very limited dissemination, did not, in fact, offend the community or set a bad example for students. As noted above, we are bound by the factual findings of the arbitrator. Here, both the trial court and the arbitrator stressed that while Hall participated in the filming of the video, she did so within her own home; she did not identify herself as an employee of the District nor was any indicia of the District used or seen (Footnote continued on next page…)
5 Stressing the deferential standard of review in grievance arbitration matters, the trial court denied the District’s petition to vacate. On appeal to this Court,5 the District argues that the trial court erred in refusing to vacate the award because (1) the award fails to draw its essence from the terms of the CBA and is not a rational interpretation of the CBA; (2) the arbitrator failed to properly apply the negotiated and defined just cause provision of the CBA; and (3) the arbitrator’s opinion and award created a new standard and requirements for a school district to prove a charge of immorality under the School Code. Because the trial court ably addressed the District’s claims we affirm based on the well written opinion of the Honorable James J. Ross.
_____________________________________ BONNIE BRIGANCE LEADBETTER, President Judge Emerita
Judge Wallace did not participate in the decision for this case.
in the video; Hall specifically instructed her daughter not to post the video to social media; and the video never would have been seen if Hall’s daughter had obeyed her wishes.
5 In its brief the District specifies that its appeal is limited to issues surrounding the charge of immorality. District’s Br. at 11.
6 IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Central Valley School District, : Appellant : : v. : No. 1323 C.D. 2021 : Central Valley Education Association, : PSEA/NEA :
ORDER
AND NOW, this 7th day of November, 2022, based on the foregoing opinion and the opinion of the Court of Common Pleas of Beaver County (C.C.P. Beaver, No. 10676-2021, filed Oct. 25, 2021) (Ross, J.), appended hereto, we AFFIRM the Order of the trial court.
_____________________________________ BONNIE BRIGANCE LEADBETTER, President Judge Emerita