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From Pa. State. Sys. of Higher Ed. v. Ass'n of Pa. State College & Univ. Faculties, decided last week by a Pennsylvania appellate court:
The Pennsylvania State System of Higher Education (PASSHE) petitions for review from a July 3, 2017 award of an arbitrator that determined that Lock Haven University …, a PASSHE member university, lacked just cause to terminate a professor in its Mathematics Department (Grievant) based on the result of a 2016 criminal history report that revealed that Grievant was convicted of sexual offenses in 1990, 14 years prior to being hired by Lock Haven. The arbitrator awarded Grievant reinstatement to his position with a make-whole remedy and required that Lock Haven not assign Grievant to classes or programs that admit high school students who enroll in college courses but have not yet matriculated in the university, referred to as "dual-enrolled students" or "dual enrollees."
The issues in this appeal are whether the arbitrator's award contravenes the public policy of protecting minors from sexual abuse and whether the award violates the essence test because it intrudes on PASSHE's inherent managerial right to assign professors and students to specific classes. We conclude that the award does not contravene public policy or intrude on PASSHE's inherent managerial rights and accordingly affirm the award….
[The facts:] Beginning in 2014, the General Assembly passed several amendments strengthening the [Child Protective Services Law], … [including by requiring criminal background checks] of all employees of institutions of higher education who had direct contact with children….
In 1989, Grievant was charged in Kentucky with two counts of Sodomy in the third degree and one count of Sexual Abuse in the first degree. Though the exact nature of Grievant's crime is unclear, it appears that Grievant, who was 19 years old at the time, performed oral sex on an 8-year-old boy and engaged in another unspecified sexual act with another minor. Grievant was convicted of the charges in 1990, and he received a 5-year prison sentence, which was automatically reduced by 25% when he successfully completed a voluntary sex offender therapy program while incarcerated.
Following his release from prison, Grievant completed his undergraduate studies where he tutored students and then received a Ph.D. in Mathematics from Michigan State University where he directed the Mathematics Learning Center and supervised 110 graduate assistants. Grievant was hired by Lock Haven in 2004 as a professor in the Mathematics Department. In 2009, Grievant was granted tenure by Lock Haven and promoted to full professor based on his highly regarded teaching and scholarship. In 2014, a faculty committee recommended that Grievant's tenure be renewed as part of a regular review process that occurs every five years.
When Grievant was initially hired at Lock Haven in 2004, the employment application that he completed asked only whether he had been convicted of a crime within the previous decade or whether there were any criminal charges currently pending against him, to which Grievant truthfully responded in the negative. There has been no allegation that Grievant engaged in any other instance of sexual abuse or any other impropriety while employed at Lock Haven or at any point after 1989.
[As a result of the 2014 statutory changes, Grievant was required to get a background check, which revealed the 1989 charges and 1990 conviction. -EV]
On May 9, 2016, [Lock Haven] President [Michael] Fiorentino conducted a pre-disciplinary conference. On May 18, 2016, President Fiorentino sent Grievant a letter notifying him that his employment was terminated. In the letter, President Fiorentino stated that he considered that Grievant had a "regular and recurring teaching assignment" of 100-level courses in which non-matriculated minors could enroll and that he participated in running an annual math competition for high school students hosted by Lock Haven. President Fiorentino stated that he did not agree with Grievant's sentiment that he was a changed person since his conviction and that the severity and relevancy of the criminal offenses outweighed any possible mitigation due to the passage of time and therefore required Grievant's dismissal….
[The arbitrator's decision:] The grievance was then referred to binding arbitration [under the university union contract]…. [T]he arbitrator concluded that the central issue was whether Grievant's continued employment constituted an unacceptable threat to any minors within the Lock Haven student population in spite of the nearly three decades that have elapsed since his crime without any improper behavior. The arbitrator stated that under the "just cause" standard, PASSHE was required to show "a concrete reason for separating him from employment."
Addressing PASSHE's rationale for terminating Grievant, the arbitrator … concluded that, while hiring decisions may be based solely on the severity of the crime and risk that the applicant would commit similar acts in the future, decisions regarding current employees must take into account objective factors pointing towards the employee committing a similar act, with the predictive value of an old conviction receding as evidence of more recent trustworthiness piles up. The arbitrator noted that in 2004 PASSHE implicitly accepted the potential of a candidate for employment to be rehabilitated from a distant criminal act as Grievant's employment application only asked for information regarding pending charges or criminal convictions in the prior 10 years.
The arbitrator detailed Grievant's academic accomplishments since his release from prison and described his unblemished record, excellent reviews and history of advancement at Lock Haven, including his receipt of tenure and its renewal….
The arbitrator finally addressed whether Grievant could still perform his job duties without having contact with high school students, concluding that PASSHE had not demonstrated that it would be impractical for Grievant to exclusively teach matriculated students. The arbitrator concluded that PASSHE lacked just cause for the termination, holding that the preponderance of evidence showed that Grievant's youthful criminal acts had not followed him into middle age. …
The essence test, the applicable standard of review in appeals from grievance arbitration awards, has been described as one of "great deference" which requires that an arbitration award be affirmed so long as it draws its essence from the applicable CBA [collective bargaining agreement]. This test involves a two-step analysis; first, the court must determine if the issue is properly defined as within the terms of the CBA and second, if the issue is embraced in the agreement, whether the award is rationally derived from the agreement…. "[A] court will only vacate an arbitrator's award where the award indisputably and genuinely is without foundation in, or fails to logically flow from, the" CBA.
Under the essence test, the arbitrator's findings of fact are binding on the courts, and the reviewing court may not undertake any independent factual analysis. In addition, a court may not review the merits or reasonableness of the arbitrator's award under the guise of the essence test.
[Managerial prerogatives:] PASSHE asserts that the arbitrator's remedy encroaches on its inherent managerial rights under the CBA to direct the teaching assignments of faculty. PASSHE contends that the award changes Grievant's job description and removes a significant amount of the work (teaching 100-level courses) of the position for which Grievant was hired…. It is well-established that an arbitrator may fashion a remedy in a particular case that is not explicitly prescribed in the CBA so long as the remedy furthers the essence of the CBA…. [T]hat power is not limitless[:] An award that changes the language of a CBA or that adds new or additional provisions to the agreement fails the essence test…. Thus, for example, where the arbitrator adds an "arbitrary and capricious" standard to the CBA concerning the employer's discipline of a probationary employee, or changes the time period for filing a grievance as set forth in the CBA, the arbitration award does not draw its essence from the agreement.
In this case, the arbitrator concluded that the decision to discharge Grievant was based in part upon PASSHE's supposition that Grievant could not perform his duties as a mathematics professor at Lock Haven without coming into contact with dual-enrolled students. The arbitrator addressed the rationale underlying this belief to see whether an accommodation could be made to alleviate PASSHE's concerns, finding that there was high demand among the other professors in the Mathematics Department to teach the 100-level classes in which high school students would enroll and there were sufficient other courses for Grievant to teach, including graduate courses.
The arbitrator observed that the Chair of the Mathematics Department testified that he was comfortable in not assigning Grievant to classes with dual-enrolled students and had accommodated one professor in the past who did not want to teach high-school level classes and agreed to not place students who had complained about another professor in future classes with that professor. The arbitrator further found that summer session courses and an annual math competition for high school students were staffed by volunteers and therefore they were not essential to Grievant's duties. The arbitrator accordingly concluded that being in contact with dual-enrolled students was not an essential aspect of Grievant's job and Grievant could be exempted from being assigned to teach in classes or programs in which dual-enrolled students could enroll….
[Public policy:] PASSHE also argues that the arbitrator's award violates the well-defined public policy in Pennsylvania of protecting minors from sexual abuse. In cases where a court finds that the essence test is satisfied, the court may then consider whether the award violates a well-defined and dominant public policy of the Commonwealth. The public policy exception to the essence test is a "narrow" one, but is not to be interpreted so narrowly "that it would be, as a practical matter, completely negated." The public policy exception requires the application of a three-part test:
["]First, the nature of the conduct leading to the discipline must be identified. Second, we must determine if that conduct implicates a public policy which is 'well-defined, dominant, and ascertained by reference to the laws and legal precedents and not from general considerations of supposed public interests.' … Third, we must determine if the arbitrator's award poses an unacceptable risk that it will undermine the implicated policy and cause the public employer to breach its lawful obligations or public duty, given the particular circumstances at hand and the factual findings of the arbitrator.["] …
We agree with PASSHE that a well-defined and dominant public policy exists in Pennsylvania in favor of protecting children from child abuse, including abuse of a sexual nature…. Furthermore, Grievant's conduct that led to his termination implicates the public policy in favor of protecting children from abuse….
[But] the award by the arbitrator [would not pose] an unacceptable risk of undermining the public policy …. The arbitrator found that various mitigating factors existed that militated against Grievant's dismissal, including the fact that over 25 years had elapsed since Grievant's crime, his relatively young age at the time of the incident, the fact that he completed a voluntary sexual offender program, and the fact that after being released from prison he completed two advanced degrees at other universities while serving as a tutor and supervisor of graduate students. The arbitrator also focused on the fact that Grievant had worked at Lock Haven since 2004, was promoted to full professor, attained tenure and received excellent reviews for his teaching and scholarship with no indication that he had ever engaged in any impropriety.
In addition, the arbitrator also appropriately considered the substantive due process right under the Pennsylvania Constitution prohibiting legislation that deprives an individual of the right to conduct a lawful business unless the regulation has a real and substantial relationship to a valid state objective. A long line of decisions have invalidated legislation imposing blanket prohibitions on employment based on past convictions, beginning with Secretary of Revenue v. John's Vending Corp. (Pa. 1973), wherein our Supreme Court recognized that over 15-year-old convictions related to drug possession and transporting untaxed liquor had little value in predicting whether an individual should have his license revoked under the Cigarette Tax Act. The Court explained that "[t]o forever foreclose a permissible means of gainful employment because of an improvident act in the distant past completely loses sight of any concept of forgiveness for prior errant behavior and adds yet another stumbling block along the difficult road of rehabilitation." More recently, in [2004 and 2012], this Court struck down lifetime employment bans based on disqualifying criminal convictions …; in both cases, the Court found the legislation wanting because it did not allow the employers to perform an individualized, case-by-case assessment of whether the conviction was predictive of future behavior.
In this case, the arbitrator performed exactly the type of individualized assessment of whether Grievant was suitable for continued employment at Lock Haven, determining that, in light of his exemplary work record, Grievant's remote convictions did not reflect on his present ability to perform the duties of his position. The arbitrator added the proviso that Grievant would not teach in classes or programs that admit dual-enrolled students so that Grievant would be excluded from the class of employees at institutions of higher education that the General Assembly determined should be required to submit Section 6344 clearances.
[T]he question before us is not whether Grievant's actions were contrary to public policy or whether the decision to discharge Grievant furthered public policy. Instead, the issue is whether the public policy would preclude the enforcement of the arbitration award and force PASSHE and Lock Haven to breach their legal obligations or public duty. Based upon the arbitrator's ample explanation of the rationale for the award, we conclude that the award bore a "reasonable, calibrated [and] defensible relationship" to the threat posed by Grievant's conduct, and therefore did not violate public policy….