           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Riverview School District,                 :
                 Appellant                 :
                                           :     No. 634 C.D. 2017
                   v.                      :
                                           :     Argued: November 13, 2017
Riverview Education Association,           :
PSEA/NEA                                   :



BEFORE:      HONORABLE RENÉE COHN JUBELIRER, Judge
             HONORABLE PATRICIA A. McCULLOUGH, Judge
             HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge



OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE McCULLOUGH                                        FILED: January 5, 2018


             Riverview School District (the District) appeals from the April 12, 2017
order of the Court of Common Pleas of Allegheny County (trial court) denying the
District’s petition to vacate an arbitration award. By opinion and award dated June 28,
2016, the Arbitrator sustained in part and denied in part a grievance filed by Riverview
Education Association and PSEA/NEA (collectively, the Association) on behalf of
Bernard Campbell. More specifically, the Arbitrator sustained Campbell’s grievance
insofar as he was discharged and directed that he be reinstated effective January 1,
2016. However, the Arbitrator denied Campbell’s grievance as to his suspension
without pay for the period from March 23, 2015, until December 31, 2015.
                            Facts and Procedural History
             The following facts are garnered from the Arbitrator’s award. The District
and the Association are parties to a collective bargaining agreement (CBA) effective
July 1, 2014, through June 30, 2018. A dispute arose between the parties with regard
to the termination of a professional employee, Campbell, who taught in the District’s
Tenth Street Elementary School. Campbell’s wife is also employed by the District as
a special education teacher. (Arbitrator’s Decision at 2, 21.)
             In June of 2012, Campbell had been admonished by the Superintendent
and directed to maintain proper, professional boundaries with a different female
colleague.   Subsequent thereto, the collegial relationship between Campbell and
another teacher, Beth Funtal, changed significantly. Campbell’s visits to Funtal’s
classroom became more frequent; he tried to converse with her in closer proximity; and
he presented her with gifts and correspondence suggesting they engage in a romantic
relationship, even though both he and Funtal were married. Campbell would also sit
next to her and at times place his hand on her knee or kiss her head. Funtal rebuffed
these actions by Campbell and repeatedly asked him to step back and leave her
alone/get out of her classroom. While away on a college visit with her daughter, Funtal
received several text and email messages from Campbell, which made her
uncomfortable. Upon her return, Campbell left a package for Funtal with a stuffed
mascot of the school that she and her daughter had visited, along with a note that she
found odd and discomforting. Funtal discussed the situation with some colleagues but
did not confront Campbell regarding this incident. (Arbitrator’s Decision at 3-7, 20.)
             In May of 2014, Campbell placed several photographs of Funtal’s
daughter, along with a Mother’s Day card, in Funtal’s personal bookbag. Around
Halloween, Campbell gained access to Funtal’s locked classroom and decorated the
room with Halloween decorations. In January of 2015, Campbell presented Funtal with

                                           2
a small box as a Christmas present, which included an oversized clothespin with her
name, a note that said “hoodie,” and a letter that included numerous references to his
desire for a romantic relationship with her.1 Campbell again expressed his desire for a
relationship with Funtal in subsequent conversations. Funtal eventually sent an email
to Principal David Zolkowski complaining that Campbell’s conduct crossed
professional boundaries and intruded into her personal space. She noted that she had
trouble sleeping and sought counseling from the Center for Victims. (Arbitrator’s
Decision at 9-15.)
                On January 29, 2015, Funtal filed a formal complaint against Campbell
with the District. Principal Zolkowski and Dr. Ashley Coudriet, the District’s Title IX
Coordinator,2 initiated an investigation and conducted personal interviews with
numerous employees, including Funtal and Campbell. Principal Zolkowski and Dr.
Coudriet reported their findings to the Superintendent, Dr. Margaret DiNinno. By letter
dated February 12, 2015, the District advised Campbell that he was being placed on
administrative leave with pay. (Arbitrator’s Decision at 25.)
                The District subsequently met with Campbell and his union
representatives. By letter dated March 20, 2015, the District informed Campbell that
he was being suspended effective March 23, 2015, without pay. On March 25, 2015,
the Association filed a grievance on behalf of Campbell, alleging that the District
violated the CBA by imposing discipline without just cause. The District thereafter

       1
           The letter was admitted into evidence before the Arbitrator and is reproduced in the
Arbitrator’s decision. While we will not recite the same in its entirety, the letter clearly expressed
that Campbell had feelings for Funtal, whom he referred to throughout as “Bethie,” noting that their
relationship was “different than most,” how her smile “had more to do with how we felt,” how he and
Funtal were “two people who cared a great deal for one another” and could have had a “much different
relationship” given a different time and place, his desire to kiss her years ago, and the numerous times
he “felt like kissing [her] and didn’t.” (Arbitrator’s Decision at 12-13.)

       2
           Referring to Title IX of the Education Amendments of 1972, 20 U.S.C. §§1681-1688.

                                                   3
opted to dismiss Campbell from employment and provided him with a statement of
charges and notice of hearing on July 25, 2015. The District charged Campbell with
willful neglect of duties; persistent negligence in the performance of duties; persistent
and willful violation of, or failure to comply with, school laws of the Commonwealth,
including District policies and directives; immorality; and intemperance. The parties
agreed that the grievance filed by Campbell would serve as the continuing vehicle to
address his unpaid suspension and pending termination. (Arbitrator’s Decision at 25.)


                         Arbitrator’s Hearings and Award
             The Arbitrator conducted hearings on February 10 and March 18, 2016.
Funtal testified that she worked for the District for 17 years, many of those years with
Campbell, and that she is married with four grown children. While they often shared
special education students and worked on projects together, Funtal stated that their
collegial relationship started changing in 2013 as Campbell’s visits to her classroom
became more frequent and uncomfortable. Funtal explained that Campbell regularly
engaged in non-work-related, personal conversations, and routinely invaded her
personal space to the point where she asked him to step back. Funtal acknowledged
that Campbell often brought her small token gifts, such as a candy bar or bottle of
water, when she was having a bad day, and she often chatted with him over the same
or with regard to computer issues she was having. However, Funtal noted that several
times she received gifts that made her uncomfortable or Campbell would place his hand
on her knee or kiss her head, to which she implored him to leave her alone.
(Arbitrator’s Decision at 3-5.)
             Funtal also acknowledged that Campbell had assisted her with filling
orders at her husband’s pierogi business on at least one occasion in the fall of 2013,
and later in soliciting support via email for this business in a local magazine contest.

                                           4
However, Funtal described an incident occurring over a period of four days in April
2014, when she visited her daughter at college and Campbell sent her several text
messages at or near midnight, including one asking her to let him know that she got
home. Funtal testified that later that same week, she received a package which included
a stuffed mascot of her daughter’s school, and a floral card with a handwritten note
from Campbell that made her feel very uncomfortable. After receiving this package,
Funtal noted that she talked to Matt Schenle, a co-worker and Association
representative, about it. While Schenle expressed surprise to learn the package came
from a fellow teacher, he did not make plans to discuss the situation with Campbell.
Nevertheless, Funtal herself spoke with Campbell the next week and informed him that
she felt uncomfortable, and that his behavior was upsetting and out of line. Funtal
noted that although Campbell insisted he was just trying to be nice, she felt distracted
the rest of the day. Funtal also testified that in May 2014, she received a note from
Campbell that was addressed to “Bethie,” a name that no one, including her husband,
ever called her. (Arbitrator’s Decision at 5-9.)
             Later in May 2014, around Mother’s Day, Funtal explained that
Campbell, without her knowledge, placed several photographs of her daughter and the
daughter’s dance team, along with a Mother’s Day card, in her personal bookbag.
Although Funtal thought it was a nice gesture, she felt it was also strange that Campbell
had kept copies of photos from a year ago when he assisted her with another project.
Funtal personally told Campbell that his actions were inappropriate, he apologized, and
she did not report him to the Association or the District. (Arbitrator’s Decision at 9.)
             During the next school year, 2014-2015, Funtal acknowledged that she
requested Campbell’s assistance with printing out a boarding pass from her computer
and he obliged. Around Halloween, Funtal noted that she was again uncomfortable
because Campbell had gained access to her locked classroom and decorated for the

                                           5
occasion. Funtal talked to Campbell but did not report his actions to the Association
or the District. At the end of November, Funtal stated that Campbell emailed her at a
time when his daughter was undergoing surgery on her hand and she believed him to
be at the hospital with his wife. She felt the email was awkward and discussed it with
Schenle, who suggested that she respond to Campbell and his wife, which she did.
Subsequently, Funtal noted that Campbell questioned her as to why she did not respond
further since she knew of the surgery and he really needed her at that time. Early in
2015, Funtal testified that Campbell came to her classroom with a small box that
contained an oversized clothespin with her name on it, a note that said “hoodie,” and a
card and letter discussing his romantic feelings for her. (Arbitrator’s Decision at 10-
13.)
             Funtal again felt uncomfortable and proceeded to show the letter to
Schenle, who advised her that the letter was wrong and that she needed to do something
about Campbell’s actions. The next day, Funtal stated that Campbell came to her
classroom and inquired about the gift and letter, to which she responded that there was
nothing to talk about and there was no relationship between them. Funtal noted that
Campbell insisted that, if not for their respective spouses, they would be together. She
described Campbell as becoming very agitated, frustrated, and argumentative. Fearing
for her safety, Funtal testified that she emailed Principal Zolkowski on January 26,
2015. After being unable to sleep because of the situation, and seeking advice from a
friend, she sought help from the Center for Victims. (Arbitrator’s Decision at 13-15.)
             Christine Maisto, a special education teacher who worked closely with
Funtal, testified that she often observed Campbell in or near Funtal’s classroom and
that Funtal had asked her on occasions to come up to her classroom or stay in the room
with her because Funtal was uncomfortable with Campbell. On the day Funtal received
the box with her daughter’s school mascot, Maisto stated that she was asked to come

                                           6
to Funtal’s room and Funtal appeared upset, shaken, and confused. While Campbell
had informed Maisto that he was concerned for Funtal, Maisto noted that she advised
Campbell that Funtal was capable of handling her students and that additional gifts
were unnecessary. After receiving the photographs of her daughter, Maisto described
Funtal as increasingly nervous and upset, which was impacting her teaching. Maisto
indicated that she and Schenle read the letter from Campbell, that Funtal was obviously
shocked and embarrassed by the letter, and that the letter was inappropriate and crossed
the line. (Arbitrator’s Decision at 16-17.)
             Schenle testified that he worked at the same school as Funtal and
Campbell as an elementary teacher and served as the building representative for the
Association. He, too, often observed Campbell entering or leaving Funtal’s classroom
and often witnessed Funtal asking Campbell to leave the room. Schenle described the
gift of a stuffed mascot as very inappropriate and observed that Funtal was upset after
receiving it. He advised Funtal that she needed to do something about it, but recognized
it was a difficult situation involving two colleagues. He also described Funtal as
troubled by receipt of the Mother’s Day card and photographs of her daughter.
Regarding the letter written by Campbell, Schenle stated that he never witnessed any
behavior between Funtal and Campbell that would indicate they were in a relationship
and that Funtal’s interest was purely professional. He noted that the letter was wrong
and suggested that he would accompany Funtal to report the same to the administration
when she was ready. (Arbitrator’s Decision at 17-18.)
             Dr. DiNinno, the District’s Superintendent, testified that she first became
aware of the situation upon notice from Principal Zolkowski and she felt that the
situation warranted further investigation. On or about February 9, 2016, Dr. DiNinno
stated that she received a copy of the romantic letter that Campbell sent to Funtal and
immediately contacted the District’s solicitor. Dr. DiNinno noted that Campbell was

                                              7
placed on paid administrative leave at that time. However, after she met with the
District’s solicitor, Funtal, and Campbell, Dr. DiNinno indicated that the District
convened a Loudermill3 hearing and converted Campbell’s leave to an unpaid leave.
Dr. DiNinno explained that the conversion to unpaid leave was predicated on the
romantic letter, as well as the unwelcome gifts and cards, that Funtal received from
Campbell. Dr. DiNinno also noted that Campbell had signed an acknowledgement
when he received the District’s harassment policy. She emphasized that he had been
previously warned in June of 2012 to remain professional and maintain social distance
from another employee to ensure that nothing new, inappropriate, or ambiguous occurs
with respect to the relationship between him and the other employee. (Arbitrator’s
Decision at 18-20.)
              Upon conclusion of the District’s investigation and consultation with the
solicitor, Dr. DiNinno determined that Campbell’s conduct was inappropriate and
impacted not only Funtal, but other teachers as well. She described Campbell’s
behavior as affecting Funtal’s work and consuming her time. She was aware of the
collegial friendship between Funtal and Campbell over the years, but noted that
Campbell seemed to progressively transform it into a more intense and one-sided
relationship, which he refused to stop even after being told it was inappropriate and
which culminated in the romantic letter. Hence, Dr. DiNinno made the decision to
terminate Campbell’s employment. (Arbitrator’s Decision at 20.)
              Campbell testified on his own behalf, noting his 20 years of employment
with the District, his marriage to a fellow special education teacher, Sylvia Campbell,
and his work with special needs students. (Arbitrator’s Decision at 21.) He stated that

       3
          Referring to Cleveland Board of Education v. Loudermill, 470 U.S. 532 (1985), which
requires that a teacher be given notice and opportunity to respond to any charges levied against him
in a formal hearing before being terminated.


                                                 8
he and Funtal often had six or seven special needs students in common and they
regularly discussed these students. Id. He stated that on many occassions he assisted
Funtal with both work-related and non-work-related tasks and he considered her a
friend. Id. Campbell denied that Funtal ever asked him to stop visiting her classroom
or told him that she felt uncomfortable. Id. He testified that the gifts were meant to
cheer Funtal up because she was having difficulty with a certain student. Id. He denied
ever discussing a sexual relationship with Funtal, but did not deny having sent the
romantic letter. However, he described the letter as “just ramblings and things that he
should have never written.” (Arbitrator’s Decision at 22.) He stated that the letter was
not meant to upset Funtal and was written when he “wasn’t at a good place at the time.”
Id. He expressed that he was “truly sorry” to have upset Funtal, and that he believed
he could still work in the same building with her, strictly as colleagues. Id.
             Ultimately, the Arbitrator issued an award sustaining in part and denying
in part Campbell’s grievance. The Arbitrator sustained Campbell’s grievance insofar
as he was discharged, and directed that he be reinstated effective January 1, 2016.
However, the Arbitrator denied Campbell’s grievance as to his suspension without pay
for the period from March 23, 2015, until December 31, 2015.
             In his decision, the Arbitrator acknowledged that in 2012, the District
enacted an Unlawful Harassment Policy, Policy No. 348, which maintains a zero
tolerance policy against “all forms of unlawful harassment of employees and third
parties by all district students and staff members” and further states that:

             For purposes of this policy, harassment shall consist of
             verbal, written, graphic or physical conduct relating to an
             individual’s race, color, national origin/ethnicity, sex, age,
             disability, sexual orientation, religion or genetic information
             when such conduct:

                    1. Is sufficiently severe, persistent or pervasive

                                            9
                       that it affects an individual’s ability to perform
                       job functions or creates an intimidating,
                       threatening or abusive work environment.

                       2. Has the purpose or effect of substantially or
                       unreasonably interfering with an individual’s
                       work performance.

                       3. Otherwise adversely affects an individual’s
                       employment opportunities.
(Arbitrator’s Decision at 26-27) (emphasis in original).              The Arbitrator also
acknowledged that Campbell had been cautioned in June 2012 that his conduct towards
female colleagues may make them uncomfortable. Id. at 28. While noting that
Campbell was present in Funtal’s classroom far more than what was collegially
necessary, the Arbitrator emphasized that Funtal and Campbell had interacted over the
years in a friendly manner outside of a professional relationship and there were no
problems until 2014. Id. at 28, 31. The Arbitrator proceeded to discuss each of the
seven specific incidents that occurred from 2014-2015 separately, as though each
incident was isolated from the other.4
                Ultimately, the Arbitrator concluded that, while certainly inappropriate,
Campbell’s conduct did not constitute sexual harassment. The Arbitrator emphasized
that cases of sexual harassment generally “involve an individual transgressor who by
virtue of either supervisory or managerial authority, either engaged in such conduct, or

       4
           The Arbitrator identified the seven incidents as:
                        a. The “[stuffed mascot] incident”
                        b. Mother’s Day Gift
                        c. The unsolicited Halloween decorations
                        d. The hospital waiting room e-mail
                        e. The Christmas gift kerfuffle
                        f. The 9 page handwritten letter
                        g. The gifts and cards

(Arbitrator’s Decision at 67.)


                                                10
an employer who allowed such conduct to take place without intervention.”
(Arbitrator’s Decision at 66.) The Arbitrator proceeded to note that, in this case,
“There was no groping, no sexual contact, no offers of quid pro quo, and no demeaning
or criticism or other unlawful conduct based upon sex.” Id. The Arbitrator specifically
described the romantic letter as “at a minimum[,] an exercise of poor judgment, and
that the content of the letter was a further demonstration of poor judgment which
understandably upset Ms. Funtal, and rightly so.” (Arbitrator’s Decision at 71.) The
Arbitrator concluded that the letter, along with the gifts, equated to misconduct, but
neither, by itself, constituted harassment or created a hostile work environment, nor
violated the District’s policy. While the Arbitrator indicated that such misconduct
warranted discipline, he did not believe that it warranted a discharge. In that regard,
the Arbitrator concluded that Campbell’s unpaid suspension of approximately nine
months was the appropriate discipline.


                                Appeal to Trial Court
             The District thereafter filed a petition to vacate the Arbitrator’s award with
the trial court. By order dated April 12, 2017, the esteemed trial court judge denied the
District’s petition, concluding that the Arbitrator’s decision drew its essence from the
CBA and did not violate public policy. The trial court went on to state in this order that
Campbell’s “misconduct, while serious, was not so egregious that public policy
prohibited his reinstatement with a lengthy suspension” and that “the law does not
require termination of employees in every case of sexual harassment,” citing
Philadelphia Housing Authority v. American Federation of State, County and
Municipal Employees, District Council 33, Local 934, 956 A.2d 477 (Pa. Cmwlth.
2008). The trial court did not issue an opinion in this case.



                                           11
                                         Discussion
              The District thereafter filed a notice of appeal to this Court,5 arguing that
the trial court erred in failing to vacate the Arbitrator’s award because (1) the award
violates the public policy against sexual harassment in the workplace, and (2) the trial
court failed to take into account the independent grounds for termination under section
1122(a) of the Public School Code of 1949 (School Code), Act of March 10, 1949, P.L.
30, as amended, 24 P.S. §11-1122(a).


                                        Essence Test
              Grievance awards are reviewed under the deferential essence test, which
requires an award to be confirmed if (1) the issue as properly defined is within the
terms of the agreement; and (2) the award can be rationally derived from the agreement.
Fraternal Order of Transit Police v. Southeastern Pennsylvania [Transportation]
Authority, 114 A.3d 893, 898 (Pa. Cmwlth. 2015). A reviewing court will not second-
guess the arbitrator’s fact-finding or interpretation as long as the arbitrator has arguably
construed or applied the CBA. Id. Indeed, this Court will only vacate an arbitrator’s
award under the essence test “where the award indisputably and genuinely is without
foundation in, or fails to logically flow from, the collective bargaining agreement.”
Slippery Rock University of Pennsylvania, Pennsylvania State System of Higher
Education v. Association of Pennsylvania State College & University Faculty, 71 A.3d
353, 358 (Pa. Cmwlth. 2013) (quoting State System of Higher Education (Cheney
University) v. State College and University Professional Association (PSEA-NEA), 743
A.2d 405, 413 (Pa. 1999)).

       5
          By single-judge memorandum opinion and order dated August 1, 2017, this author granted
the District a stay of the Arbitrator’s award pending appeal.

                                              12
                    Public Policy Exception to the Essence Test
             However, in Westmoreland Intermediate Unit #7 v. Westmoreland
Intermediate Unit #7 Classroom Assistants Educational Support Personnel
Association, PSEA/NEA (Westmoreland I), 939 A.2d 855, 865 (Pa. 2007), our Supreme
Court adopted a public policy exception to the essence test that permits a reviewing
court to consider whether the arbitrator’s award violates an established public policy.
Under the public policy exception to the essence test, an arbitration award may be set
aside if it violates a “well-defined, dominant” public policy “ascertained by reference
to the laws and legal precedents and not from general considerations of supposed public
interests.” Id. at 866. In deciding whether to apply the public policy exception, the
court must consider (1) the nature of the employee’s conduct leading to his or her
discipline; (2) whether the employee’s conduct implicates a well-defined, dominant
public policy; and (3) whether the arbitration award poses an unacceptable risk that it
will undermine the implicated policy. Slippery Rock University of Pennsylvania, 71
A.3d at 363. An arbitration award that explicitly conflicts with a well-defined public
policy must be vacated. Id.


                     Public Policy Against Sexual Harassment
             In Philadelphia Housing Authority, this Court stated, “[i]t now is well
established that there is an explicit, well-defined, and dominant public policy against
sexual harassment in the workplace.” 956 A.2d at 483 (citations omitted.) We also
noted as follows:

             Title VII of the Civil Rights Act of 1964 prohibits
             employment discrimination on the basis of sex. 42 U.S.C.

                                          13
              §2000e-2.       The Equal Employment Opportunity
              Commission (EEOC), which administers and enforces this
              provision, has promulgated regulations that define sexual
              harassment under Title VII and provides that unwelcome
              sexual advances, requests for sexual favors, and other verbal
              or physical conduct of a sexual nature constitute sexual
              harassment (a form of sex discrimination) when such
              conduct has the purpose or effect of unreasonably interfering
              with an individual’s work performance or creating an
              intimidating, hostile, or offensive working environment. 29
              C.F.R. §1604.11(a).

              Because Title VII charges employers with the responsibility
              to maintain a workplace environment free of sexual
              harassment, there also exists a well-defined, dominant public
              policy favoring voluntary employer prevention of sexual
              harassment in the workplace and application of sanctions
              against those who commit such conduct. EEOC regulations
              on voluntary employer compliance make employers liable
              for acts of sexual harassment in the workplace between
              fellow employees where the employer knew or should have
              known of the conduct, “unless it can show that it took
              immediate and appropriate corrective action.” 29 C.F.R.
              §1604.11(d).

                                              ...

              Section 5(a) of the Pennsylvania Human Relations Act
              (PHRA)[6] also prohibits discrimination on the basis of sex
              and has been interpreted to include sexual harassment that is
              severe or pervasive enough to create a hostile work
              environment. 43 P.S. §955(a). Moreover, pursuant to its
              statutory authority to adopt rules and regulations to
              effectuate the policies and provisions of the PHRA, the
              Pennsylvania Human Relations Commission has adopted
              guidelines on sexual harassment that are very similar to those
              promulgated by the EEOC.



       6
          Act of October 27, 1955, P.L. 744, as amended, 43 P.S. §955(a). In deciding sexual
harassment cases under the PHRA, Pennsylvania courts look to federal court decisions interpreting
Title VII. Hoy v. Angelone, 691 A.2d 476, 480 (Pa. Super. 1997), aff’d, 720 A.2d 745 (Pa. 1998).

                                               14
Id. at 483-84.



                 Application of Public Policy Exception to Present Case
               The District argues that the trial court erred in failing to vacate the
Arbitrator’s award because the award violates the public policy against sexual
harassment in the workplace.
               As the District notes in its brief, “There is a well-defined and dominant
public policy prohibiting sexual harassment in the workplace which can be ascertained
by reference to law and legal precedent.” (Brief of District at 24.) Indeed, such public
policy has been recognized by our United States Congress in Title VII of the Civil
Rights Act of 1964, by our United States Supreme Court and other federal courts, by
our General Assembly, and by this Court. See 42 U.S.C. §2000e-2; Meritor Savings
Bank, FSB v. Vinson, 477 U.S. 57 (1986); Stroehmann Bakeries, Inc. v. Local 776,
International Brotherhood of Teamsters, 969 F.2d 1436 (3d Cir. 1992), cert. denied,
506 U.S. 1022 (1992); Chrysler Motors Corporation v. International Union, Allied
Industrial Workers of America, AFL-CIO, 959 F.2d 685 (7th Cir. 1992), cert. denied,
506 U.S. 908 (1992); Section 5(a) of the Pennsylvania Human Relations Act, Act of
October 27, 1955, P.L. 744, as amended, 43 P.S. §955(a) (prohibits discrimination on
the basis of sex and has been interpreted to include sexual harassment that is severe or
pervasive enough to create a hostile work environment); Philadelphia Housing
Authority.
               Additionally, this important public policy has been recognized by
Pennsylvania’s Code of Professional Practice and Conduct for Educators (Code),7
established by the Professional Standards and Practices Commission (Commission).

      7
          22 Pa. Code §§235.1 – 235.11.

                                           15
The Code establishes “high standards for preparation, certification, practice and ethical
conduct in the teaching profession.” Section 235.1 of the Code, 22 Pa. Code §235.1.
Section 235.3(b) of the Code specifies that educators must value “the worth and dignity
of every person, student and colleague alike . . . .” 22 Pa. Code §235.3(b) (emphasis
added). Section 235.4(b)(4) directs that educators “respect the civil rights of all and
not discriminate on the basis of . . . sex or sexual orientation . . . .” 22 Pa. Code
§235.4(b)(4). Most importantly, section 235.11(3) of the Code expressly states that a
“professional educator may not . . . [s]exually harass a fellow employe.” 22 Pa. Code
§235.11(3).
              In conjunction with the Code, the Commission has published an Educator
Ethics and Conduct Toolkit (Toolkit) on its website8 to be used as a guide for educators
in the workplace. This Toolkit instructs educators, in fulfilling obligations to the
school community, to respect the rights of all persons without discrimination; to
interact with colleagues in a respectful and professional manner; to conduct himself in
and out of school in a way that reflects well on the school; and to avoid activities that
may be disruptive to the school community or erode an educator’s effectiveness. This
Toolkit also provides that, in fulfilling obligations to the profession, an ethical educator
shall know and obey all laws, rules, and policies; extend equal treatment to all members
of the profession; accept responsibility for maintaining ethical conduct; and
communicate openly with colleagues and immediately address any concerns regarding
a colleague’s behavior. Further, as noted above, the District itself addressed this issue
in 2012 with the enactment of Policy No. 348 (Unlawful Harassment Policy), which
maintains a zero tolerance policy against all forms of unlawful harassment of



      8
        Available at http://www.pspc.education.pa.gov/Promoting-Ethical-Practices-Resources
/Ethics-Toolkit/Pages/default.aspx (last visited December 15, 2017).

                                            16
employees and third parties by students and staff. Campbell even signed a form
acknowledging his receipt of this policy.
               As noted above, in deciding whether to apply the public policy exception,
the court must consider: (1) the nature of the employee’s conduct leading to his or her
discipline; (2) whether the employee’s conduct implicates a well-defined, dominant
public policy; and (3) whether the arbitration award poses an unacceptable risk that it
will undermine the implicated policy. Slippery Rock University of Pennsylvania, 71
A.3d at 363.
               In the present case, the record reveals that Campbell had already been
admonished by the Superintendent in June of 2012, for other inappropriate conduct,
and he had been directed to maintain proper, professional boundaries with a different
female colleague. Despite this prior admonishment, Campbell engaged in numerous
inappropriate interactions with Funtal herein, as detailed in the Arbitrator’s extensive
findings and which the Arbitrator categorized only as “misconduct.” While the
Arbitrator described Campbell’s actions as certainly inappropriate, and concluded that
such actions did not constitute sexual harassment, the trial court’s order appears to have
disagreed with the Arbitrator’s conclusion in certain respects and on one hand appears
to deem Campbell’s conduct as sexual harassment.9 However, the trial court also states
that this “misconduct” does not violate public policy, without any detailed analysis of
the factors cited above. Indeed, in its petition to vacate, the District alleged that the
Arbitrator erred in concluding that Campbell’s conduct did not equate to sexual
harassment given that the Arbitrator appears to have inappropriately limited sexual
harassment to cases involving a person with supervisory or managerial authority over


      9
         Conclusions of law are generally fully reviewable by this Court. See Lewis v.
Commonwealth, 498 A.2d 800, 803 (Pa. 1985); Braig v. Pennsylvania State Employes’ Retirement
Board, 682 A.2d 881, 885 (Pa. Cmwlth. 1996).

                                            17
the target of his/her conduct and requiring such conduct to be in the nature of groping,
sexual contact, offers of a quid pro quo, or demeaning language/criticism.
Additionally, the District alleged that the Arbitrator improperly isolated Campbell’s
interactions with Funtal into seven specific incidents and appears to have considered
each incident separately, when in fact Campbell’s actions should have been viewed
and considered in their entirety.10 Further, the District alleged that Campbell’s actions
violated its own Unlawful Harassment Policy and that it had a duty to protect Funtal,
its employee, from sexual harassment under Title IX, the PHRA, and section 1122(a)
of the School Code, which duty has been usurped by the Arbitrator’s award directing
Campbell’s reinstatement.
               The trial court did not address these issues raised by the District. Thus,
this matter must be remanded to the trial court for further clarification of whether
Campbell’s actions constituted sexual harassment and, if so, why the Arbitrator’s
award does not violate public policy in light of the allegations raised by the District.
               Accordingly, the order of the trial court is vacated and the matter is
remanded to the trial court for further proceedings consistent with this opinion.



                                              ________________________________
                                              PATRICIA A. McCULLOUGH, Judge

       10
            Indeed, our United States Supreme Court has directed courts, in determining whether an
environment is sufficiently hostile or abusive, to look at “all the circumstances,” including the
“frequency of the discriminatory conduct; its severity; whether it is physically threatening or
humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s
work performance.” Faragher v. City of Boca Raton, 524 U.S. 775, 787-88 (1998) (citing Harris v.
Forklift Systems, Inc., 510 U.S. 17, 23 (1993)); see also Section 1604.11(b) of the Regulations of the
Equal Employment Opportunity Commission, 29 C.F.R. §1604.11(b) (“In determining whether
alleged conduct constitutes sexual harassment, the Commission will look at the record as a whole and
at the totality of the circumstances, such as the nature of the sexual advances and the context in which
the alleged incidents occurred.”)

                                                  18
           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Riverview School District,                   :
                 Appellant                   :
                                             :    No. 634 C.D. 2017
                     v.                      :
                                             :
Riverview Education Association,             :
PSEA/NEA                                     :


                                          ORDER


             AND NOW, this 5th day of January, 2018, the order of the Court of
Common Pleas of Allegheny County (trial court), dated April 12, 2017, is hereby
vacated. The matter is remanded to the trial court for further proceedings consistent
with this opinion.
             Jurisdiction relinquished.




                                          ________________________________
                                          PATRICIA A. McCULLOUGH, Judge
