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BMS Case No. 06-PA-1296
DECISION AND AWARD
________________________________________
Appearances
For ISD No. 861
Ms. Patricia Maloney, Esq.
Attorney at Law
Ratwik, Roszak & Maloney, P.A.
330 U.S. Trust Building
Minneapolis, MN 55402
For WAA & Dr. Wondrasch
Mr. Douglas A. Boese, Esq.
Attorney at Law
Dunlap & Seeger
206 South Broadway
Suite 505
Rochester, MN 55904
Hearing Date: September 28, 2006
Record Closed: October 13, 2006
Date of Award: April 30, 2007
The Winona Administrators’ Association (hereinafter “Association”) filed a grievance on behalf of Dr. Wondrasch (hereinafter referred to as "Grievant" or "Principal") in early February 2006. The grievance alleged that Independent School District No. 861, through its Superintendent, Mr. Paul D. Durand (hereinafter referred to as "Employer" or "Superintendent") falsely accused the Grievant of violating state law, school district policy and insubordination. The Association seeks removal of the letter of reprimand from the Grievant's personnel file on the grounds that the Employer did not have just cause to issue the reprimand. The grievance was properly processed through the various levels of the parties’ collective bargaining agreement. The parties selected the undersigned arbitrator to hear this matter. The parties agreed to September 28, 2006 as the hearing date. The hearing was held on that date in the conference room of the Winona Government Center. In addition to the advocates the following individuals were present and provided testimony: the Superintendent, the Grievant, the Assistant Principal, the human resources director, three teachers, a student, the student's parents and the Employer's investigator.
The parties had a full and fair opportunity to present their respective positions through direct and cross-examination of the witnesses and the presentation of documents relevant to this matter. The parties elected to file post hearing briefs. The briefs were to be postmarked October 9, 2006. The parties later agreed to extend the time for exchanging briefs to October 13, 2006. The briefs were received on or before October 13, 2006 and the record was closed at that time. This matter is properly before the arbitrator.
The parties stipulated that the only issue to be decided is whether the Employer had just cause to discipline the grievant.
Employer’s Position
1. The reprimand was proper because the Grievant violated Minn. Stat. Section 626.556 and District Policy 414.
2. The Grievant violated Minnesota law and District policy by failing to make a mandated maltreatment report within 24 hours of learning of the allegation.
3. The Grievant failed to make an accurate mandated maltreatment to students report.
4. The Grievant was required by Minnesota Law and District policy to report the allegation and not her conclusions resulting from her investigation into the allegations of abuse.
5. The Grievant failed to notify the Employer of a parent complaint and allegation of violence.
6. District Policy 103 required the Grievant to notify the Employer of all parental complaints containing serious allegations.
7. District Policy 413 required the Grievant to immediately notify the superintendent upon receipt of a report of violence toward a pupil without screening or investigating the report.
8. The Grievant was insubordinate for providing misleading information during the Employer's investigation.
9. The Grievant was warned by the outside investigator that providing false or misleading information could be considered insubordination and result in discipline.
10. The Grievant told the investigator that her meeting with the student in the presence of the teacher and his union representative lasted for ten minutes. The Grievant's account of the nature and duration of the meeting was in stark contrast to the accounts of other witnesses.
11. The Employer warned the Grievant on several occasions to improve her communication with him regarding matters relevant to the operation of and activities at the senior high school.
Union’s Position
1. The relevant statute and Employers’ policies require reports when there is a physical injury. There was no physical injury reported to the assistant principal or to the Grievant and therefore there was no requirement that the incident be reported to the Department of Education.
2. The Department of Education’s form regarding the maltreatment of minors does not require that allegations be reported but does require a description of the incident.
3. Employer Policy 103 gives discretion to supervisors who receive a report to address the complaint. The language of the policy does not require the Grievant to notify the Employer of the receipt of every complaint.
4. The Employer failed in its burden to establish a basis for a reprimand based on Policy 103.
5. The criticism of the Grievant that she made a poor decision in not reporting the incident to the Employer recognizes that she had the discretion to report.
6. District Policy 413 was hardly addressed at the hearing because it does not apply to this situation. Policy 413 has to do with religious harassment or violence, racial harassment or violence, and sexual harassment or violence. There has been no allegation that this case involved any such conduct.
7. The facts fail to establish that the Grievant provided misleading information during the investigation.
The facts giving rise to this grievance/arbitration stem from an incident that took place in a (redacted) class at Winona Senior High School during the fall of 2005. The (redacted) teacher was attempting to gain control of his classroom in order to begin instruction when he noticed a student waving a ruler in the direction of a female student sitting nearby. The student continued waving the ruler at the female student. At one point he knocked her water bottle from her desk. The (redacted) teacher approached the student who was waving the ruler at the female student. He approached from behind and startled the student. The (redacted) teacher grabbed the student's shoulder to prevent him from continuing to swing the ruler at the female student. Startled by the sudden contact, the student stood up quickly and in doing so tipped over his desk. The teacher also shouted: “What the hell are you doing?” The teacher removed the student from the class and instructed him to complete his quiz in the hallway just outside of the classroom. The student did so and returned to the classroom for the remainder of the class period.
The student’s father reported the incident to the assistant principal the following Monday. The father told the assistant principal that the (redacted) teacher had grabbed his son by the neck and thrown him to the ground. The assistant principal reported the allegation to the Grievant. The Grievant investigated the matter. She selected two students from the (redacted) class and interviewed each. She then interviewed the (redacted) teacher who was accompanied by his union representative. The Grievant then called the student to her office and questioned him in the presence of the (redacted) teacher and union representative. The Grievant did not notify the student's parents prior to or after the meeting. The student's description of the event was similar to that of his (redacted) teacher. The Grievant told the student that she wanted to contact his parents. The student said he did not think it necessary and that he would speak with his parents.
The next morning, the parents came to the Grievant's office cursing and shouting their disapproval of the way she handled the matter. They threatened to remove their son from the school. The parents did not feel the Grievant acted appropriately by interviewing their son without them being present. The parents sent a letter to the Superintendent. The Superintendent directed the Grievant to submit a report of potential maltreatment of a minor to the Department of Education. The Grievant submitted the report and included her conclusions resulting from her investigation rather than simply reporting the allegation as described to the assistant principal by the student's father.
The Superintendent expected the Grievant to report the allegation exactly as the father had to the assistant principal, namely that the teacher grabbed his son by the neck and threw him to the ground. The Department of Education declined to conduct an investigation. The Superintendent brought in its legal counsel to conduct an investigation into exactly what had transpired and to determine whether the Grievant’s actions were proper given school district policy, state law and other relevant regulations.
As a result of that investigation the Superintendent decided to discipline the Grievant and gave her a letter of reprimand. The Superintendent listed four reasons for the discipline. He said that the Grievant failed to make a timely report of potential maltreatment of a student. The Superintendent also said the reprimand was based on the Grievant's failure to make an accurate report. The Superintendent was concerned that the principal reported the results of her investigation rather than reporting the actual allegation as brought forth by the parent. The Superintendent also said the Grievant failed to notify him of the parent complaint and allegation of violence toward a student. Finally, the Superintendent said the Grievant provided misleading information during his investigation and was therefore insubordinate.
The parties agreed that the only issue to be decided is whether the Employer had just cause to discipline the Grievant. In order to resolve this issue it is necessary to determine whether the Grievant committed the violations outlined in the letter of reprimand. The first reason advanced by the Employer was the Grievant's failure to “make a timely mandated maltreatment to students report.” The Employer insists that Policy 414 and Minn. Stat. §626.556 required the Grievant to report the “allegation of physical abuse” within 24 hours. The Grievant was informed of the allegation at the end of October 2005 but did not file a report until instructed to do so almost two weeks later. The Employer intended to implement a policy that complied with the requirements of Minn. Stat. §626.556 especially insofar as the statute requires immediate reporting of maltreatment of a student. However, the policy does not require the reporting of “allegations.” This distinction is important in terms of assessing whether the Grievant committed an act that should result in discipline. Policy 414 reads as follows:
“It shall be a violation of this policy for any school personnel to fail to immediately report instances of child neglect, or physical abuse when the school personnel knows or has reason to believe a child is being neglected or physically or sexually abused or has been neglected or physically or sexually abused within the preceding three years.” (Emphasis added)
The Grievant, after receiving information regarding the parents’ allegation decided that she needed information in order to determine whether the teacher physically abused the student. The Grievant's investigation took more than 24 hours. The Grievant’s actions were designed to satisfy the requirement that she “knows or has reason to believe” a student had been physically abused. Testimony revealed that the Employer interprets the law and district policy to require the Grievant to report any and all allegations of physical abuse without regard for the truth or falsity of the matter. Under the Employer’s interpretation of Policy 414 and the state law upon which it is based any person could walk into the Grievant’s office and make an allegation that someone had abused a student and the Grievant’s obligation would be to report that allegation to the Department of Education without taking steps to determine whether the allegation warranted such a report.
Policy 414 requires the Grievant to “know” or “have reason to believe” that a student has been abused. In order to comply with this language, the Grievant must make some effort to verify information provided her. In this case, the Grievant took steps to interview the teacher, the student as well as other students in the (redacted) class that day. Based on those interviews the Grievant concluded that the allegation of physical abuse was unfounded. Therefore, she did not have reason to believe the student had been physically abused. Physical abuse is defined in Policy 414 as:
“any physical injury, mental injury, or threatened injury, inflicted by a person responsible for the child’s care other than by accidental means; or any physical or mental injury that cannot reasonably be explained by the child’s history of injuries…”
While it might be argued that the procedures used by the Grievant to examine the allegation were not the best, the act of checking out the allegations was consistent with the requirement that the reporter of maltreatment “know or have reason to believe” such conduct has taken place. The allegation that a teacher grabbed a student by the neck and threw the student to the ground is certainly alarming but does not in and of itself satisfy the “knowing” or “reason to believe” language of the policy. It should be noted that Policy 414 also punishes false reports.
“Any person who knowingly or recklessly makes a false report under the provisions of applicable Minnesota law or this policy shall be liable in a civil suit for any actual damages suffered by the person or persons so reported and for any punitive damages set by the court or jury, and the reckless making of a false report may result in discipline.”
Given that language, it is certainly reasonable for the Grievant to make some initial determination as to the truth or falsity of the allegation. To simply report the allegation to the Department of Education could have proven reckless. Interestingly, the Employer’s own investigation did not find that the teacher grabbed the student by the neck and threw him to the ground. The student did not have an injury or bruise or any other indication that he suffered anything more than embarrassment. Certainly, nothing in the testimony or in the investigation and the report resulting from that investigation indicates that the teacher intended to harm much less abuse the student. At best we have an accident that resulted from the student’s horseplay and refusal to behave in a manner consistent with the learning environment. Policy 414 actually permits reasonable force by a teacher consistent with that prescribed by law. Again, prior to making a report, the Grievant needed to sort out the details and make certain she was not submitting a report recklessly or submitting a report of conduct that the Policy was not designed to address. The arbitrator finds that the Grievant did not violate Minn. Stat. §626.556 or Policy 414.
The second reason advanced by the Employer for the reprimand was the Grievant’s failure to make an accurate mandated maltreatment report. The Employer said the Grievant’s failure to include the parents’ allegation in the report meant that the report was inaccurate. The Grievant submitted her conclusions arrived at following her investigation. The Employer felt that doing so deprived the Department of Education of necessary information. Policy 414 requires an evaluation as to whether the allegations are worthy of reporting. Had the Grievant reported just the allegation, she might have subjected herself and the school district to liability for recklessly reporting a matter and initiating a process that could harm others.
Policy 414 does not require the submission of allegations. The Employer’s letter of reprimand sets forth the position that the Grievant is required by law and policy to submit “maltreatment reports that are of sufficient content to identify the nature and extent of the abuse or neglect.” The Employer then goes on to say that only the original allegation would suffice. "By reporting your conclusions rather than the allegation, you failed to make an accurate mandated maltreatment report." In other words, only by telling the Department of Education that the teacher grabbed the student by the neck and threw him to the floor would the Department have been able to make a sufficient determination as to the extent of the abuse or neglect. The Employer's interpretation of its' policy is inconsistent with the plain language of the policy and the statute. Had the Grievant submitted the allegation, which by definition is not the same thing as “facts,” there would certainly have been insufficient content upon which the Department of Education could rely to make a reasonable determination as to "the nature and extent of the abuse or neglect.” That is because there was no abuse or neglect of the student. The Employer claimed that it provided training to the Grievant and other mandatory reporters that included a directive to report allegations rather than conclusions drawn from investigation of allegations. However, that directive does not square with the language of Policy 414 requiring mandatory reports to avoid recklessness in the submission of maltreatment reports. Furthermore, it is curious that the letter of reprimand does not instruct the Grievant to report only allegations in the future. Rather, the Employer actually provides guidance to the Grievant on how to conduct a proper investigation into allegations. The Employer wrote:
"In regard to any future investigations into allegations of maltreatment to students or into any other allegation of physical violence toward a student, you are directed to: 1. Take contemporaneous written notes of all interviews of witnesses. 2. Accurately and thoroughly note the nature of the questions and answers of each witness. 3. Note the beginning and ending times of each interview. 4. Conduct each interview in the presence of an objective witness. 5. Refrain from interviewing students in the presence of the individual who is alleged to have engaged in the abuse or violence. 6. Refrain from using techniques during your interview to obtain agreement from the alleged victim, or any other witness. 7. With the exception of the constraints on notification contained in Minn.Stat. §626.556 and District Policy 414, notify a student's parent of your interview of the student. 8. Write a summary of your investigation, including the following: the initial allegation; the names of all witnesses; the names of the witnesses you interviewed; and your conclusions. Attach your written documentation of your interviews, and any other relevant material, to the summary. Within 24 hours of the completion of your investigation, submit the summary and attachments to me."
These instructions do not reflect the Employer's concern that only allegations are reported. The arbitrator finds no basis for concluding that the Grievant failed to submit an accurate report.
The third reason advanced by the Employer for the discipline is the Grievant’s failure to notify the Superintendent of a parent complaint and allegation of violence. In support of its’ decision, the Employer references District Policy 103. Policy 103 reads in part:
“Any employee receiving a complaint shall advise the principal or immediate supervisor of the receipt of the complaint. The supervisor shall make an initial determination as to the seriousness of the complaint and whether the matter should be referred to the superintendent…Depending upon the nature and seriousness of the complaint, the supervisor or other administrator receiving the complaint shall determine the nature and scope of the investigation or followup procedures. If the complaint involves serious allegations, the matter shall promptly be referred to the superintendent who shall determine whether an internal or external investigation should be provided.”
The Grievant fully complied with the language of Policy 103 quoted above. Here, the assistant principal testified that he met with the parent who brought forth the allegation. The parent alleged that the (redacted) teacher grabbed his son by the neck and threw him to the floor. The assistant principal notified the Grievant, his immediate supervisor. The Grievant made an initial determination as to the seriousness of the complaint. She decided that it was not serious and therefore did not need to be reported to the Superintendent. All of these actions by the Grievant perfectly align with the requirements of Policy 103. However, the Policy goes on to separate out a class of complaints that must be reported immediately to the Superintendent. Those are complaints containing “serious allegations.” The term “serious allegations” is not defined in the Policy. Testimony did not make clear the distinction between a serious allegation and one that is not. We need not try to define the two classes of complaints here. We need not do so because Policy 103 is inapplicable. The Policy specifically states that it is to be used only when a specific complaint procedure is not provided elsewhere. It represents a catcall policy that is designed to make certain that everyone knows the Employer “takes seriously all concerns or complaints by students, employees, parents or other persons.” Policy 103 includes the following: "If a specific complaint procedure is not provided, the purpose of this policy is to provide a procedure that may be used.” In this case, a specific complaint procedure was provided by Policy 414. According to the Employer, the complaint was to be processed pursuant to the procedures developed for addressing the maltreatment of students. In fact, as noted above, the Employer's position is that the reprimand was given in light of the Grievant’s failure to follow those procedures. The Employer cannot have it both ways. If Policy 414 applies then Policy 103 does not. If Policy 103 applies then the complaint was not about the maltreatment of a student and there would have been no need for the Grievant to report the matter to the Department of Education.
The fourth reason advanced by the Employer for the reprimand was that the Grievant provided false information during the investigation initiated by the Superintendent. Specifically, the Employer concluded that the Grievant lacked candor when she described the length of the meeting that involved her, the teacher, the teacher’s union representative and the student. The Employer favored the statements of other witnesses who said the meeting lasted between one hour and ninety minutes. The Grievant, on the other hand described the meeting as lasting only ten minutes. The Employer believed that this amounted to a false statement. However, the Employer’s investigative report provides no basis to believe that any of the witnesses including the Grievant were accurate about the length of the meeting. None of the witnesses were certain about the exact length of the meeting. Proof that the Grievant falsified a statement during the investigation cannot simply be based on the fact that several witnesses to an event described it differently. More is needed. Moreover, the length of the meeting is actually not relevant to whether the Grievant violated law or policy. The Grievant’s testimony as to her recollection of the length of the meeting at the hearing in this matter appeared credible. That others disagreed is common. It is curious to note that the teacher testified that he did not recall telling the investigator that the meeting lasted more than ten minutes. The arbitrator finds no basis to conclude that the Grievant lied during the investigation.
The burden of proof is typically assigned to the Employer. The arbitrator finds that the
Employer did not meet that burden. The arbitrator acknowledges that the parties' agreement does not specifically mention "just cause." Nevertheless, the agreement includes a provision for the resolution of grievances including arbitration and in doing so makes clear the parties' intent to establish a framework for the evaluation of discipline similar to that found in other labor agreements including those that specifically mentions "just cause." The parties also stipulated that the issue to be decided was whether the Employer had "just cause" to issue the reprimand. The quantum of proof required to support the discipline in this case, is the "preponderance of the evidence" standard. Given that the discipline is a letter of reprimand, the Employer need show only that it is more likely than not the Grievant acted inconsistently with policy, procedures or known instructions. Given the foregoing discussion it is clear that the Employer did not satisfy that burden.
What can be said is that the Grievant failed to listen to her supervisor who had on other occasions insisted that she improve her communication with him. This was especially important to the Superintendent. There was a bond issue under consideration and complaints about the operation of the schools in the district could have undermined the Employer's efforts in that regard. It is clear that the parents understood the sensitive political climate in which these events took place. Not knowing about such complaints could certainly harm the Superintendent's efforts to manage the political process. It would have been wise for the Grievant to inform her Superintendent of the parent's complaint, if for no other reason than to avoid his being blind sided by a parent complaint during the important political debate over the bond issue. However, the Grievant's failure to do so does not amount to misconduct for the reasons stated in the letter of reprimand. The Employer has failed to provide proof of wrongdoing as a result and therefore failed to prove that the letter of reprimand is supported by just cause. It is the arbitrator's sincere hope that the Grievant, who has an unblemished performance record thus far and the Superintendent have used the significant period of time between the hearing and decision in this matter to improve their relationship especially as regards communicating clearly with one another.
Based on the foregoing the grievance is granted. The letter of reprimand will be rescinded and removed from the Grievant’s official personnel file.
Date: April 30, 2007
Respectfully submitted,
A. Ray McCoy
Arbitrator
To Thank You Mel wrote on Jul 13, 2007 10:30 PM: