        IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Pennsylvania State System of Higher      :
Education, Bloomsburg University         :
of Pennsylvania,                         :
                        Petitioner       :
                                         :
             v.                          :   No. 914 C.D. 2018
                                         :   Argued: April 11, 2019
Association of Pennsylvania State        :
College and University Faculties,        :
                        Respondent       :


BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
        HONORABLE P. KEVIN BROBSON, Judge
        HONORABLE ELLEN CEISLER, Judge


OPINION NOT REPORTED


MEMORANDUM OPINION
BY JUDGE BROBSON                         FILED: May 16, 2019


             Petitioner   Pennsylvania   State   System    of   Higher    Education,
Bloomsburg University of Pennsylvania (University), petitions for review of an
arbitration award dated June 7, 2018, which sustained a grievance filed by the
Association of Pennsylvania State College and University Faculties (Union) on
behalf of John Barrett (Grievant).       The arbitration award orders Grievant’s
reinstatement to his previous position with no loss of benefits and back pay. The
only issue on appeal is whether the arbitration award violates the narrow public
policy exception to the essence test by reinstating Grievant despite the University’s
contentions that Grievant’s reinstatement implicates this Commonwealth’s public
policy against sexual harassment and poses an unacceptable risk of undermining the
policy. We now affirm.

                                     I.    BACKGROUND
              Grievant is an Assistant Professor employed by the University.
(Reproduced Record (R.R.) at 359a-63a.) This matter arose when two of Grievant’s
former students, including a student we will refer to as “Complainant,” notified the
University of sexual relationships Grievant had with both women.                                 (R.R.
at 175a-76a, 794a.) In response, the University conducted investigations into the
claims and eventually terminated Grievant’s employment on the grounds that his
behavior was unprofessional and violated the University’s policies against sexual
harassment and discrimination.1 (Id. at 672a-73a.) The Union filed a grievance on

       1
         The University’s policy against sexual harassment and discrimination includes sexual
violence, which the policy defines as:
       [P]hysical sexual acts perpetrated against a person’s will or where a person is
       incapable of giving consent (for example, due to the victim’s use of drugs or
       alcohol, or because of an intellectual or other disability) . . . . An act is unwelcome
       when the individual did not solicit or invite conduct, and particularly if the
       individual indicates that the conduct is undesirable or offensive. Conduct may be
       unwelcome even where the individual acquiesces or does not complain. However,
       if an individual actively participates in sexual banter or discussions without
       indicating that the conduct is undesirable or offensive, the behavior will not likely
       meet the definition of ‘unwelcome.’
(R.R. at 676a-77a (emphasis added).)        The policy also addresses consensual interpersonal
relationships by providing:
       Professionalism in all interpersonal relationships is central to the mission and goals
       of the University. Therefore, romantic and/or sexual relationships in which power
       differentials are inherent are discouraged. There are inherent risks in any romantic
       or sexual relationship between individuals in unequal positions of power (i.e.:
       faculty/student, supervisor/employee, supervisor/student employee, student
       supervisor/student, coach/student athlete).        In some circumstances, these
       relationships may be perceived as consensual by the individual whose position
       confers power without actual consent by the person with less power. Furthermore,


                                                 2
Grievant’s behalf, claiming that the University terminated Grievant’s employment
without just cause in violation of the collective bargaining agreement between the
University and the Union. (Id. at 660a-63a.) The parties then participated in
grievance arbitration, which resulted in Grievant’s reinstatement to his position as
Assistant Professor, including back pay and benefits. (Id. at 1797a.)
                      A. Grievant’s Relationship with Complainant
              Grievant and Complainant first met when Complainant was a student
in one of Grievant’s classes in the spring of 2015. (Id. at 137a.) At the end of the
spring semester, Grievant sent Complainant a friend request on Facebook, which
Complainant accepted. (Id. at 141a-42a.) During the summer of 2015, Complainant
and Grievant corresponded through Facebook Messenger, discussing the possibility
of Complainant sharing a written piece with Grievant when she returned to campus
in the fall. (Id. at 144a.) Complainant and Grievant had no further contact during
the summer.       (Id. at 145a, 789a.)      After Complainant returned to school in
September, she visited Grievant’s office and asked him to set a date to get coffee
with her. (Id. at 145a, 789a.) Grievant and Complainant began to meet for coffee
regularly and exchanged phone numbers. (Id. at 379a-80a.) In October 2015,
Complainant told Grievant that she wanted to develop a romantic relationship with
him. (Id. at 147a, 150a-51a, 380a.) Grievant and Complainant began to engage in
sexual intercourse before the end of the fall semester in 2015. (Id. at 166a, 392a.)
Complainant and Grievant spent nights together at Grievant’s home, where they
would either engage in sexual intercourse or have some type of romantic contact.


       circumstances may change, and conduct that was previously welcome, may become
       unwelcome. The existence of a prior consensual relationship will not bar a claim
       of sexual harassment and may not constitute a defense.
(Id. at 682a (emphasis added).)

                                              3
(Id. at 169a, 396a.) Complainant testified that on those occasions she would often
wake up to Grievant touching her genitals, which made her uncomfortable. (Id.
at 169a-70a.) Complainant did not discuss her concerns about these acts with
Grievant and continued the relationship into the spring of 2016. (Id. at 171a-72a.)
             Complainant’s and Grievant’s romantic relationship ended in
June 2016, but their friendship continued into October 2016. (Id. at 1425a-82a.) In
December 2016, Complainant confronted Grievant about rumors she heard
concerning Grievant’s relationship with another student.        (Id. at 1483a.)   In
May 2017, Complainant filed a complaint with the University, alleging that Grievant
“has a pattern of targeting his female students . . . and on more than one occasion
manipulated [Complainant] physically while [Complainant] was asleep and unable
to consent.” (Id. at 727a.)
                     B. University’s Investigation and Decision
             Upon receiving Complainant’s complaint, the Provost and the Director
of Social Equity reported the complaint to the University’s President, Dr. David
Soltz (Dr. Soltz). (Id. at 33a.) On May 11, 2017, Dr. Soltz placed Grievant on
administrative leave in order to investigate the allegations. (Id. at 670a.) The
University conducted interviews with Complainant and other persons with
information relevant to the allegations and compiled an investigative report
containing transcripts of the interviews. (Id. at 710a-76a.) After the investigation,
the University held a pre-disciplinary conference with Grievant to allow him to
respond to the allegations. (Id. at 848a, 851a-61a.) Dr. Soltz terminated Grievant’s
employment by letter dated June 30, 2017, citing Grievant’s lack of professional
judgment in engaging in sexual relationships with Complainant and another student
and, relevant to the matter now before us, Grievant’s “engaging in sexual conduct
[with Complainant] without [Complainant’s] consent.” (Id. at 673a.) The Union
                                         4
then filed a grievance on Grievant’s behalf, claiming that the University terminated
Grievant’s employment without just cause in violation of the collective bargaining
agreement between the University and the Union. (Id. at 660a-63a.)
                               C. Grievance Arbitration Award
               After conducting hearings on the matter, the arbitrator issued an award
sustaining the grievance. (Id. at 1797a.) Specifically, the arbitrator found that
Grievant’s conduct did not violate any of the University’s policies against sexual
harassment and discrimination because neither Complainant nor the other student
were students of Grievant at the time the sexual relationships developed.
(Id. at 1792a, 1795a.)       Further, the University’s policy did not prohibit either
relationship, because the policy does not prohibit romantic, consensual relationships.
(Id. at 1793a, 1795a.) The arbitrator, therefore, concluded: “The record does not
support the [U]niversity’s contentions cited in Dr. Soltz’s letter as the basis for the
termination of . . . [G]rievant’s employment with the [U]niversity. As such, the
[U]niversity has failed to establish just cause for the termination.” (Id. at 1795a.)

                                           II.    ISSUES
               On appeal,2 the University argues that the public policy exception
applies to invalidate the arbitration award because:                    (1) Grievant’s conduct
implicates the well-defined, dominant public policy against sexual harassment; and
(2) the arbitration award poses an unacceptable risk that it will undermine the
implicated public policy. Specifically, the University focuses solely on the allegedly
non-consensual acts performed by Grievant during the course of the relationship.




       2
          Our standard of review in such matters is referred to as the essence test, which is set forth
in the discussion section of this opinion.

                                                  5
                              III.   DISCUSSION
            Our Courts employ a deferential standard when reviewing arbitration
awards. Slippery Rock Univ. of Pa., Pa. State Sys. of Higher Educ. v. Ass’n. of Pa.
State College and Univ. Faculty, 71 A.3d 353, 358 (Pa. Cmwlth.) (Slippery Rock),
appeal denied, 83 A.3d 169 (Pa. 2013). This Court applies the essence test to
determine “whether the arbitrator’s award draws its essence from the collective
bargaining agreement or violates an established public policy.” Id. Under the
essence test, the arbitrator’s award will be upheld if: “(1) the issue as properly
defined is within the terms of the collective bargaining agreement; and (2) the
arbitrator’s interpretation can rationally be derived from the collective bargaining
agreement.” Dep’t of Corr. v. Pa. State Corr. Officers Ass’n., 38 A.3d 975, 980 (Pa.
Cmwlth. 2011). Further, “[a]n appellate court may not disregard an arbitrator’s
findings of fact . . . if the arbitrator is even arguably construing or applying the
contract and acting within the scope of his or her authority.” City of Pittsburgh v.
Fraternal Order of Police Fort Pitt Lodge No. 1, 764 A.2d 101, 103 (Pa.
Cmwlth. 2000), appeal denied, 781 A.2d 148 (Pa. 2001).
            An arbitrator’s award may, however, be vacated under a narrow
exception to the essence test known as the public policy exception. Westmoreland
Intermediate Unit # 7 v. Westmoreland Intermediate Unit #7 Classroom Assistants
Educ. Support Pers. Ass’n, PSEA/NEA, 939 A.2d 855, 865 (Pa. 2007). Pursuant to
the public policy exception, courts may not enforce arbitration awards that
contravene public policy. Neshaminy Sch. Dist. v. Neshaminy Fed’n of Teachers,
171 A.3d 334, 338 (Pa. Cmwlth. 2017) (Neshaminy) (en banc). In order to determine
whether the public policy exception is applicable, courts must: (1) identify the
nature of the conduct leading up to the discipline; (2) determine if the identified
conduct implicates a well-defined, dominant public policy which is “ascertained by

                                         6
reference to the laws and legal precedents and not from general considerations of
supposed public interests[;]” and (3) determine if the arbitration award presents an
unacceptable risk that the award 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.” City of
Bradford v. Teamsters Local Union No. 110, 25 A.3d 408, 414 (Pa. Cmwlth.),
appeal denied, 32 A.3d 1279 (Pa. 2011)).
              Our courts have applied the public policy exception to invalidate
arbitration awards that undermine the Commonwealth’s public policy against sexual
harassment and discrimination. See Phila. Hous. Auth. v. Am. Fed’n of State, Cty.
and Mun. Emps., Dist. Council 33, Local 934, 52 A.3d 1117, 1123 (Pa. 2012) (“[T]he
arbitrator’s award forcing [the employer] to take [the employee] back with full back
pay—without any sanction at all—violates a well-defined and dominant public
policy against sexual harassment in the workplace . . . .”); Neshaminy, 171 A.3d
at 343 (holding that arbitration award which reinstated with back pay minus 20-day
suspension teacher who created hostile work environment for co-worker and
engaged in lewd and suggestive statements to students, violated Commonwealth’s
public policy against sexual harassment); Slippery Rock, 71 A.3d at 365 (“The
public policy against sexual discrimination, particularly of a student by an educator,
is well-defined and rooted in the law.”). Thus, the prohibition of sexual harassment
constitutes   a   well-defined, dominant public policy          recognized in this
Commonwealth.
              In Slippery Rock, this Court vacated an arbitration award that reinstated
a college professor who engaged in sexually discriminatory behavior toward his
female students on a trip abroad. Specifically, this Court determined that the


                                           7
arbitration award violated the Commonwealth’s clearly established public policy
against sexual discrimination. On the trip abroad, the college professor asked his
students how many sexual partners each of them had and made comments about a
specific female student concerning his desire to receive oral sex from her. The
employer-university terminated the college professor, but a union filed a grievance,
resulting in an arbitration award reinstating the professor. This Court concluded that
the arbitration award undermined the Commonwealth’s well-defined public policy
against sexual discrimination. In applying the public policy exception, this Court
determined that the conduct that led to the college professor’s termination—i.e.,
making comments of a sexual nature to or about students—clearly implicates our
public policy against sexual discrimination. Further, the arbitration award posed a
risk of undermining our public policy and prevented the employer-university from
implementing policies to punish the behavior at issue and protect other students from
these acts.
              In Neshaminy, this Court affirmed a trial court’s order that vacated an
arbitration award reinstating a school teacher who constantly made sexually explicit
comments toward a co-teacher in the presence of students. On appeal, this Court
determined that the arbitration award violated the Commonwealth’s public policy
against sexual harassment. In doing so, we discussed the ongoing nature of the
teacher’s comments and the fact that the comments were made in the presence of
students, and we concluded that reinstating the teacher would most certainly
implicate the aforementioned public policy. Further, the teacher’s reinstatement
would also present an unacceptable risk that our public policy would be undermined
and the school district would be unable to enforce policies that punish such behavior,
thereby weakening its ability to protect other students or teachers.


                                          8
             Slippery Rock and Neshaminy, both of which the University relies upon,
demonstrate instances where this Court has applied the public policy exception to
vacate arbitration awards on the basis that the conduct at issue—i.e., unwelcome
sexual comments in the context of a professional relationship—implicated the
Commonwealth’s well-defined, dominant public policy against sexual harassment
and/or sexual discrimination. Neshaminy, 171 A.3d at 343; Slippery Rock, 71 A.3d
at 366. The situation before the Court today is distinguishable, however, in that,
here, the University seeks to vacate an award based on sexual conduct that occurred
within the overall context of a consensual sexual relationship and asks this Court to
find that the conduct was criminal.
             To determine whether the public policy exception is applicable in the
case now before the Court, we must first identify the nature of the conduct leading
to the discipline. Neshaminy, 171 A.3d at 338. As discussed above, Grievant’s
termination resulted from his involvement in sexual relationships with Complainant
and another student and his alleged performance of non-consensual sexual acts on
Complainant while she slept. (R.R. at 673a.) We must also consider whether the
“identified conduct implicates a well-defined, dominant public policy.” Neshaminy,
171 A.3d at 338. As to this aspect of the analysis, the University’s argument, boiled
down to its essence, is that the arbitration award violates a dominant public policy
against sexual harassment, because it reinstates to his position as a professor a
criminal who committed the crime of indecent sexual assault. In advancing that
argument, the University focuses solely on Grievant’s alleged non-consensual sexual
acts performed upon Complainant while she slept. Thus, we must turn to the facts
of the case to determine whether Grievant’s conduct implicates the public policy
against sexual harassment.


                                         9
             As discussed above, Complainant’s and Grievant’s romantic
relationship began the semester after Complainant completed Grievant’s course.
(R.R. at 147a.) Complainant alleged that, during the relationship, there were several
times when she awoke to Grievant manipulating her genitals and that this act made
her uncomfortable. (Id. at 169a-70a.) Complainant, however, continued to visit
Grievant’s home and engage in sexual intercourse on multiple occasions.
(Id. at 170a.) Further, Complainant testified that she did not tell Grievant that these
acts made her uncomfortable. (Id. at 171a-72a.) Grievant, on the other hand, denied
that he committed these acts. (Id. at 771a.) The arbitrator, assuming, arguendo, that
these acts occurred, determined that the circumstances surrounding the situation
revealed that Grievant performed the acts in the context of a consensual sexual
relationship and not as an act of sexual harassment. (Id. at 1793a.)
             The University appears to argue that, despite the arbitrator’s
characterization of the context of Grievant’s acts, the arbitration award requires the
University to reinstate a criminal, given the nature of Grievant’s alleged conduct.
The obvious problem with the University’s contention here is that there is no record
that Grievant was ever charged with, prosecuted for, or convicted of indecent sexual
assault stemming from the alleged acts. Rather, we are only dealing with an
arbitrator’s finding that if the alleged acts occurred, they occurred within the context
of a consensual sexual relationship, which is permitted by the University’s policies.
An arbitration award, and particularly an appeal from an arbitration award under the
deferential essence test, is not the proper venue to litigate whether a grievant is guilty
of a crime. It is beyond this Court’s purview to determine Grievant’s guilt or
innocence under our criminal laws. The University’s argument on this point,
therefore, is unpersuasive.


                                           10
             Recognizing that we cannot accept the University’s invitation to engage
in our own criminal analysis of Grievant’s conduct, the Court’s inquiry must focus
on the arbitrator’s findings and conclusions. Here, the arbitrator considered the
University’s policy against sexual harassment and discrimination, specifically as it
pertains to unconsented physical sexual acts and consensual interpersonal
relationships.     The arbitrator expressly found that Grievant and Complainant
engaged in a consensual sexual relationship and that Grievant’s conduct did not
violate any of the University’s policies against sexual harassment and
discrimination. (R.R. at 1792a-95a.) Thus, Grievant’s conduct, as characterized by
the arbitrator, does not implicate the public policy against sexual harassment. As a
result, the arbitration award does not pose an unacceptable risk of undermining the
public policy and does not prevent the University from upholding its obligation to
protect the public. Accordingly, the public policy exception does not apply to
invalidate the arbitration award.
             Although we reach this conclusion today, we are in no way ignoring
Grievant’s appalling lack of judgment, especially as one who once held a position
of trust for Complainant. As the arbitrator aptly stated in her opinion:
             This conclusion is not to be construed as condoning
             [Grievant’s] conduct. The inherent exploitative nature of
             relationships with students . . . calls for greater insight and
             more restraint. That he avoided termination here does not
             mean that he was prudent, kind[,] or wise. Not only must
             he adhere to the letter of the policy, he should also strive
             to follow the spirit of the policy and acknowledge that he
             must hold himself to a higher standard.
(R.R. at 1796a.)




                                           11
                              IV.   CONCLUSION
            Based on the above discussion, we affirm the arbitration award.




                                         P. KEVIN BROBSON, Judge


Judge Fizzano Cannon did not participate in the decision of this case.




                                        12
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Pennsylvania State System of Higher   :
Education, Bloomsburg University      :
of Pennsylvania,                      :
                        Petitioner    :
                                      :
            v.                        :   No. 914 C.D. 2018
                                      :
Association of Pennsylvania State     :
College and University Faculties,     :
                        Respondent    :



                                 ORDER


            AND NOW, this 16th day of May, 2019, the arbitration award entered
on June 7, 2018, in the above captioned matter is hereby AFFIRMED.




                                      P. KEVIN BROBSON, Judge
