ATTORNEY FOR APPELLANT: ATTORNEY FOR APPELLEE:
RICHARD J. DARKO WILLIAM L. SWEET, JR.
ERIC M. HYLTON MARTHA M. KINDER
Lowe Gray Steele & Darko, LLP Beckman Lawson LLP
Indianapolis, Indiana Fort Wayne, Indiana
COURT OF APPEALS OF INDIANA
FORT WAYNE EDUCATION ASSOCIATION, )
vs. ) No. 02A03-0006-CV-229
FORT WAYNE COMMUNITY SCHOOLS, )
APPEAL FROM THE ALLEN SUPERIOR COURT
The Honorable Daniel G. Heath, Judge
Cause No. 02D01-9907-CP-1497
July 16, 2001
OPINION - FOR PUBLICATION
The Fort Wayne Education Association (FWEA) appeals the trial courts grant of
summary judgment, which vacated an arbitrators award ordering the reinstatement of long-term substitute
teacher Patrick McKinney, in favor of Fort Wayne Community Schools (FWCS). FWEA
raises two issues, which we restate as the following three:
Whether the trial court erred in granting summary judgment on the basis that
the arbitrator impermissibly modified the parties collective bargaining agreement;
Whether the arbitrators opinion and award violates public policy against sexual harassment and/or
Whether reinstatement of a long-term substitute to a position that has been filled
by a permanent teacher violates the master contract.
We reverse and remand with instructions. Facts and Procedural History
Patrick McKinney was employed as a long-term substitute teacher at Kekionga Middle School
in Fort Wayne during the 1997-98 school year. On February 25, 1998,
McKinney supervised a basketball practice in the school gym. During a
break in the practice, McKinney placed his hands in his shorts and told
J.H., an eighth-grade female student, that he did not like the new underwear
he was wearing. About ten minutes later, McKinney told J.H. that he
had something cool to show her, but not to tell her parents.
He lifted his t-shirt and showed her that his nipple was pierced.
The next day, J.H. told her basketball coach about the incident and stated
that it had made her feel uncomfortable. R. at 92. At
the coachs suggestion, J.H. also informed the school counselor and later the principal
about the incident. The following day, a meeting was held with J.H.,
her parents, McKinney, the principal, and the counselor. At the meeting, McKinney
apologized to J.H. for making her feel uncomfortable; the two shook hands; and
they then went to the school gym to play basketball. J.H. stayed
after the game and shot three-pointers with McKinney for a half hour.
Although FWCS informed Child Protective Services (CPS) of the incident, CPS referred the
matter back to the school. On March 13, the principal sent a
letter to J.H.s parents informing them of CPSs action and stating that FWCS
would follow established procedures that will provide appropriate disciplinary action. R. at
94. On April 6, FWCS sent McKinney a letter informing him that
his employment was being terminated based on inappropriate conduct by a teacher to
a student, and confirmed allegations of sexual harassment. R. at 94.
Pursuant to the collective bargaining agreement between FWCS and FWEA, McKinney waived his
right to a school board hearing and proceeded directly to binding arbitration.
A hearing was held before an arbitrator on February 11, 1999. On
May 26, 1999, the arbitrator issued a fifteen-page Opinion and Award, which concluded
that McKinneys actions were inappropriate but only warranted a sanction of a one-week
suspensionnot termination. The arbitrator ordered that McKinney be reinstated to his long-term
substitute position and receive back pay less the one week disciplinary suspension.
On July 28, 1999, FWCS filed a Complaint for Application to Vacate and/or
Modify or Correct an Arbitrators Award in Allen Superior Court. FWEA responded,
and both parties later moved for summary judgment. The trial court granted
FWCSs motion for summary judgment and denied FWEAs motion. FWEA appeals.
Standard of Review
Indianas Uniform Arbitration Act, Ind.Code § 34-57-2-1 to 22 (1998), provides a mechanism
for enforcing agreements to arbitrate and for securing judicial review and enforcement of
awards made. School City of East Chicago, Ind. v. East Chicago Fedn
of Teachers Local No. 511, 622 N.E.2d 166, 168 (Ind. 1993) (quoting School
City of East Chicago, Ind. v. East Chicago Fedn of Teachers, Local No.
511, 422 N.E.2d 656, 658 (Ind. Ct. App. 1981)). Judicial review
of an arbitration award is extremely narrow in scope. Id. An
award should only be set aside when one of the grounds specified by
the Uniform Arbitration Act for vacation of an award is shown. Id.
A party who seeks to vacate an arbitration award under the Uniform
Arbitration Act bears the burden of proving the grounds to set the award
aside. Id. The role of an appellate court in reviewing an
arbitration award is limited to determining whether the challenging party has established any
of the grounds permitted by the Uniform Arbitration Act. Id.
I. Alleged Modification of the Collective Bargaining Agreement
Indiana Code section 34-57-2-13(a) provides several grounds upon which a trial court may
vacate an arbitration award. At issue here is section 13(a)(3): the
arbitrators exceeded their powers and the award can not be corrected without affecting
the merits of the decision upon the controversy submitted. We have previously
held that this provision is to be narrowly construed. The statutory provision
does not attempt to limit the discretion and powers of a neutral arbitrator
to whom a controversy has been duly submitted. Bopp v. Brames, 677
N.E.2d 629, 631-32 (Ind. Ct. App. 1997) (internal citation omitted).
In this case, the arbitrator entered a fifteen-page, single-spaced Opinion and Award, discussing
the applicable contract, the parties contentions, the evidence, and his findings and conclusions
in great detail. Of relevance to this appeal are the arbitrators conclusions
that McKinneys acts of adjusting [him]self publicly and displaying his nipple ring to
a student represented very poor judgment, and taken individually or together, are inconsistent
with a proper teacher role model. R. at 100. However, he
noted neither act was immoral because baseball players routinely adjust themselves on televised
games; the school had no policy on body piercings; and some students apparently
had such piercings. In light of these considerations, the arbitrator concluded that
[s]ome discipline short of termination, therefore, is appropriate. R. at 100.
The arbitrator rejected FWEAs contention that the role model rule was unreasonable, but
the penalty for violation of it is unreasonable. It calls for termination.
Thus, if a young teacher came to work in a skirt that
was too short, she could face termination for a violation of being a
role model. While the business objective of having teachers be role models
[sic], termination is too harsh for a plethora of possible violations, including the
R. at 100. In a footnote discussing whether McKinney had received copies
of the school role model and sexual harassment policies, the arbitrator concluded that
constructive knowledge was imputed but that FWCS was off base requiring termination for
violations of either rule. R. at 101.
In its order vacating the arbitrators opinion and award, the trial court recited
these portions of the arbitrators opinion and found them to be an impermissible
modification of the contract.
It is very apparent to this court that the arbitrator in
this cause would not permit termination as a remedy for either a violation
of the sexual harassment policy o[r] the role model policy . . .
This court is fully cognizant that the arbitrator specifically referred to
progressive discipline as an alternative to termination, but the overarching language employed at
footnote 12 gives this court great pause and concern that this arbitrator made
a decision, in excess of his powers, that termination is not a remedy.
R. at 220. The trial court, based apparently on a selective reading
of a few sentences of the arbitrators fifteen-page opinion, concluded that the arbitrator
had impermissibly modified the contract to foreclose, under any circumstance, the remedy of
termination. R. at 221. As a result, it vacated the arbitrators
decision and award. II. Sexual Harassment and Immorality
FWCS bears the burden here, as it did in the trial court, of
proving the grounds to set aside the arbitrators award. School City of
East Chicago, 622 N.E.2d at 168. Specifically, it must establish under section
13(a)(3) that the arbitrator exceeded his powers and the award cannot be corrected
without affecting the merits of the controversy.
Echoing the trial courts findings, FWCS makes the tenuous claim that the arbitrator
effectively amended the agreement by finding termination an impermissible penalty for violation of
either the role model or sexual harassment policies. Brief of Appellee at
13. We disagree. Although the construction urged by FWCS might be
plausible, it no more plausible than other interpretations, such as: that termination was
an inappropriate remedy for the rather minor violations of these rules in this
particular case. Indeed, the arbitrator explicitly acknowledged that an employee may be
terminated whose conduct makes a serious threat to children or whose behavior is
inconsistent with the employees position as a role model for children . .
. . R. at 100. The arbitrator was not convinced, however,
that McKinneys conduct was of such a magnitude. Moreover, as noted by
the trial court, the arbitrator explicitly referred to progressive discipline, as well as
termination. R. at 100. Other language also strongly suggests that the
arbitrator considered termination to be an option, not a requirement.
Given our very narrow scope of review, we conclude that FWCS has not
established that the arbitrator exceeded his powers; the trial court erred in concluding
otherwise. However, that is not the end of our inquiry, as FWCS
also asserts alternative bases for affirming the trial court, as discussed below.
FWCS also contends that the grant of summary judgment was proper because the
arbitrators opinion violates public policy. Specifically, it argues that McKinney had engaged
in sexual harassment and immoral conduct. The trial court did not address
these issues because it vacated the arbitrators opinion and award on other grounds.
The United States Supreme Court has held, A courts refusal to enforce an
arbitrators award under a collective bargaining agreement because it is contrary to public
policy is a specific application of the more general doctrine, rooted in the
common law that a court may refuse to enforce contracts that violate law
or public policy. United Paper Workers Intl v. Misco, 484 U.S. 29,
42 (1987). Here, the arbitrator made the following findings:
Regarding the charge of sexual harassment, the Employers policy regarding that subject defines
it as: . . . unwelcome sexual advances, requests for sexual favors,
and other inappropriate verbal or physical conduct of a sexual nature when made
by any employee to a student, when made by any employee to another
employee, when made by any student to a school employee, or when made
by any student to another student when:
Submission to such conduct is made either explicitly or implicitly a term or
condition of an individuals employment or education;
Submission to or rejection of such conduct by an individual is used as
a basis for [an] academic or employment decision affecting that individual; or
Such conduct has the purpose or effect of substantially interfering with an individuals
academic or professional performance or creating an intimidating, hostile, or offensive employment or
Certainly, according to the above definitions, McKinneys behavior on February 25, 1998, did
not rise to a level to constitute sexual harassment pursuant to subsections a.
or b. above. These subsections refer to so-called quid pro quo sexual
harassment. This form of sexual harassment contemplates a situation when someone with
authority uses that authority to extract sexual favors by threatening the victim with
adverse circumstances if he or she does not accede to the demands made.
However, McKinney was no longer [J.H.]s teacher at the time of the
incidents in question, and had no power to [a]ffect her academically. Most
importantly, there was no evidence that McKinney used his position as a teacher
to demand sexual favors from [J.H.].
Thus, the only form of sexual harassment remaining in the definition, was subsection
c. above, dealing with hostile environment harassment. In order for hostile environment
sexual harassment to occur, an employees misconduct must create an intimidating, hostile, or
offensive educational environment. For this to happen, the conduct must be sufficiently
severe, persistent, and/or pervasive. Even assuming arguendo that the grievants behavior was
sexual in nature, it lacked severity and persistence. The Employer stipulated that
there was no change in [J.H.]s performance, attendance or disciplinary record after the
incidents of February 25, 1998. Moreover, [J.H.] admitted that McKinney did not
request sex with her or did he attempt to molest or touch her.
In addition, on the Friday following the incident in question, [J.H.] participated in
a basketball game in which McKinney was playing, and after the game, she
shot 3-point shots with him for a half an hour. Surely, if
[J.H.] had still felt uncomfortable with McKinney, she would have neither played in
the game or shot baskets with him. In addition, she practiced soccer
while McKinney was the coach. Such post-event behavior by [J.H.] strongly indicates
that she no longer felt discomfort in McKinneys presence and that the grievants
initial behavior was not severe.
In sum, we have an incident which made [J.H.] uncomfortable for two or
three days, but did not affect her relationship with McKinney nor was the
behavior severe, persistent or pervasive. Indeed, it is reasonable to conclude that
the grievants behavior on February 25, 1998, was objectionable, but it was not
R. at 98-99. III. Remedy
As the United States Supreme Court recently reiterated, a determination of whether conduct
rises to the level of sexual harassment is not measured in isolation, but
rather, whether an environment is sufficiently hostile or abusive is judged by looking
at all the circumstances, including the frequency, severity, and whether it is physically
threatening, humiliating, or a mere offensive utterance. Clark County Sch. Dist. v.
Breeden, 121 S. Ct. 1508, 1510 (2001). [S]imple teasing, offhand comments, and
isolated incidents (unless extremely serious) will not amount to discriminatory changes in the
terms and conditions of employment. Id. (quoting Faragher v. Boca Raton, 524
U.S. 742, 788 (1998) (citation and quotation marks omitted)).
Here, as the arbitrator explained in his decision, McKinneys conduct was inappropriate but
it was an isolated incident that, although disconcerting, can hardly be considered severe.
The arbitrator did not manifestly disregard the law in concluding that McKinneys
conduct was not sexual harassment. Accordingly, the arbitrators opinion cannot be said
to violate the public policy against sexual harassment.
In a similar vein, FWCS argues that the arbitrators opinion and award violated
the well-established public policy in the State of Indiana against immoral conduct by
teachers in schools. Brief of Appellee at 23. According to statute,
a permanent teacher under contract with full tenure rights may be immediately terminated
for immorality. Ind.Code § 20-6.1-4-10(a)(1) (1998). In Fiscus v. Board of
School Trustees of Central School District of Greene County, this court defined immorality
as not essentially confined to a deviation from sex morality; it may be
such a course of conduct as offends the morals of the community and
is a bad example to the youth whose ideals a teacher is supposed
to foster and to elevate. 509 N.E.2d 1137, 1141 (Ind. Ct. App.
1987), trans. denied (quoting Horosko v. Mount Pleasant Township Sch. Dist., 6 A.2d
866, 868 (Pa. 1939)).
The letter of termination sent to McKinney stated that inappropriate conduct by a
teacher to a studentand not immorality was the second ground for termination.
Immorality was only tangentially addressed by the arbitrator, who discussed it in the
context of a violation of the role model policy. The arbitrator ultimately
concluded that adjusting oneself publicly . . . represented very poor judgment, but
was not immoral. R. at 100. The arbitrator similarly concluded that
McKinneys display of his nipple ring, in light of the absence of any
school policy on body piercings, represented poor judgment but was not immoral.
McKinneys conduct, as explained above, was an isolated incidentnot a course of conduct.
Moreover, it does not rise to the level of conviction for any
offense, let alone the serious sex offenses listed in Indiana Code section 20-6.1-4-10(a)(6)
and cited by FWCS. The arbitrator did not manifestly disregard the law
in concluding that McKinneys conduct was not immoral.
As a final point, we turn to the issue of remedy. The
arbitrator ordered that McKinney be reinstated to his long-term substitute job at Kekionga
Middle School within five days after the receipt of this award. Back
pay is from April 6, 1998 to October 15, 1998, less one-weeks disciplinary
suspension. He is also entitled to a full restoration of all benefits
and seniority that may apply. R. at 101.
FWCS contends that reinstatement exceeded the scope of the arbitrators authority under the
master contract. The arbitrator relied on Article 10, Section B(1), which provides
that [a] substitute teacher serving in a long-term assignment will not be replaced
by another substitute without cause. R. at 101. The arbitrator reasoned that
because there was no cause for termination, McKinney should receive his long-term substitute
assignment with Kekionga School. R. at 101.
Because arbitration arises through contract, the parties have defined what remedies may be
afforded by arbitration, which must therefore conform to general principles of law.
See North Miami Educ. Assn v. North Miami Cmty. Schs., 736 N.E.2d 749,
757 (Ind. Ct. App. 2000), affd on rehg, 746 N.E.2d 380 (Ind. Ct.
App. 2001). According to Article 5, Section C(5) of the master contract,
an arbitrator is given the power to declare the purported or proposed
dismissal void and order such other relief as is necessary to protect the
teachers rights and security for the succeeding academic year. R. at 30.
McKinney, as a long-term substitute, had no rights or security for the succeeding
academic year, except that he not be replaced by another substitute teacher without
cause. Cf. North Miami, 736 N.E.2d at 757 (Nonpermanent teachers contract
rights exist only with regard to a contract entered into for the present
school year, and the decision to continue a nonpermanent teachers contract is merely
a decision to reemploy that teacher for another year.). Before the following
academic year commenced, FWCS filled the teaching position once held by McKinney with
permanent teacher on a regular teachers contract. R. at 102.
FWCS concludes that the award must be vacated because it cannot be modified
without affecting the merits. Brief of Appellee at 18. We disagree.
The arbitrator found that McKinney had violated the role model policy but
that a one-week suspension without pay, not termination, was the proper remedy.
As explained in Part I above, the trial court erred in vacating this
part of the arbitrators award. Although termination was improper, FWCS nevertheless retained
the power under the master contract to hire a regular teacher to fill
the position for the next year as explained above.
The arbitrator exceeded his authority in ordering reinstatement for the following academic year.
The only available remedy for the following year was ordering that McKinneys
name be placed on the roster of eligible substitute teachers. In addition,
back pay for the remainder of the 1997-98 academic year, less the one-week
unpaid suspension, was also within the arbitrators authority to award.
Accordingly, we remand this case with instructions to amend the arbitrators award to
provide as follows: McKinney shall be reinstated to the list of substitute
teachers available at Kekionga Middle School. He shall receive back pay from
April 6, 1998 to the last day of the academic year, less one-weeks
The judgment of the trial court is reversed and this case is remanded
with instructions to amend the arbitrators award in accordance with this opinion.
BAILEY, J., and BAKER, J., concur.
FWCS concludes its brief with a request that we excise certain extraneous
statements from the arbitrators award because the statements may impede FWCS from fulfilling
its statutory obligations and duties in future circumstances. Brief of Appellee at
26. It cites
Fort Wayne Education Association v. Board of Trustees of
FWCS, 569 N.E.2d 672, 680 (Ind. Ct. App. 1991), in which this Court
modified an award to excise certain statements which were beyond the arbitrator's authority
to determine. Here, the statements complained of were well within the purview
of the arbitrators authority. Moreover, we fail to see how these isolated
statements can have any future precedential effect, as they are merely the opinion
of one arbitrator, not adopted by thisor any othercourt in the state.