Authority to initiate discipline for just cause implies the imposition of a “just penalty”

Authority to initiate discipline for just cause implies the imposition of a “just penalty”

Boston Med. Center v Local 285, 260 F.3d 16

Many collective bargaining agreements provide that an employee may be disciplined “for just cause.” However, few contracts define “just cause.”

In the Boston Medical Center [BMC] case, the U.S. Circuit Court of Appeals addressed the application of a negotiated agreement that permitted an employer to discipline employees for just cause. Its conclusion: the term just cause not only applies in initiating disciplinary action against an employee; it also encompasses the concept of imposing a “just penalty” based on the offense or offenses for which the employee is found guilty.

Katherine Hartney, a registered nurse [RN] employed by BMC for some ten years, was terminated following the death of an infant under her care. BMC's action was based on its determination that Hartney “engaged in serious substandard nursing practices” in caring for the infant.

The Union grieved Hartney's discharge to arbitration. The arbitrator ruled that BMC violated the collective bargaining agreement because it terminated Hartney without just cause. She reinstated Hartney and reduced the penalty imposed by BMC from discharge to an unpaid, nine-month suspension without pay. BMC attempted to have the arbitration award vacated.

The issues submitted to the arbitrator:

1. Did the Hospital violate Article XV of the collective bargaining agreement when it terminated the grievant, Katherine Hartney, on October 2, 1998?; and

2. If so, what shall be the remedy?” Article XV of the collective bargaining agreement provides: “No RN who has completed his/her probationary period shall be disciplined or discharged except for just cause.”

The arbitrator concluded that “there is just cause for the imposition of discipline in this matter but ... discharge is too harsh a penalty for an employee with an unblemished record of employment for nearly ten years.” In considering the appropriate penalty, the arbitrator said that:

“While [Article XV] makes no explicit reference to progressive discipline, it references 'just cause,' a concept which encompasses both liability for the action(s) charged and fairness in the amount of discipline imposed.”

BMC was ordered to reinstate Hartney, without back pay, and directed Hartney to participate in a remedial educational program as part of the reinstatement process.

The Circuit Court decided that the plain language of Article XV, requiring just cause before an RN is disciplined or discharged, contemplates a range of disciplinary penalty responses. The court said that it agreed with the arbitrator's rationale that the concept of just cause requires a close relationship between the employee's misconduct and the employer's response along that disciplinary range.

Thus, said the court, the arbitrator was free to conclude that there was no just cause for discharging Hartney, but that there was just cause for imposing a lesser disciplinary penalty. In other words, it was appropriate for the arbitrator to conclude that the employer's right to discipline an employee for just cause was subject to consideration of a just penalty as well. This concept has been recognized by New York State's Court of Appeals in Pell v Board of Education, 34 NY2d 222.

In reversing the district court's judgment granting summary judgment in favor of BMC, the Circuit Court said that it did not minimize in any way the tragic death of the infant. However, the court explained, BMC signed a collective bargaining agreement containing an arbitration clause conveying substantial authority to the arbitrator to decide whether there is just cause for discharge. If, said the Circuit Court, BMC wants to reserve more “disciplinary authority” to itself, it may attempt to do so during its next round of contract negotiations.

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Assigning a principal to a school

Assigning a principal to a school

Commissioner of Education's Decision 14,606

Section 100.2(a) of the Commissioner's regulations, requires a board of education to “employ and assign to each school under its supervision a full-time principal holding the appropriate certification....”

Parents of children attending Olean City School District elementary schools challenged a resolution adopted by the school board on November 21, 2000 providing “that an alternative mode of building administration be employed effective July 1, 2001 that would combine the principalship responsibilities of the North Hill and Boardmanville Elementary Schools.” The two schools are eight tenths of a mile apart. The parents asked the Commissioner to order the district “to comply with the Commissioner's regulations and retain a full-time principal for each school.”

Although the Commissioner dismissed the appeal as untimely, he cautioned that “it appears from the record that a variance request is required to effectuate respondent board's resolution.”*

As to the district's argument that the fact that the two schools are located 8/10 of a mile apart justifies the appointment of one principal for the two schools, the Commissioner said that “there are no distance prerequisites in the regulation that would obviate the need for the district to apply for a variance.”

The Commissioner distinguished between a situation such as Olean's where a district fails to assign a principal to each of its separate schools and a situation where a district has assigned a principal to “a school composed of more than one building in close proximity,” citing the appeal of the Middle Island Principals' Association, Commissioner's Decision 10,229.

The Commissioner advised the district “to carefully consider any principal appointments to assure compliance with all applicable regulations.” The State Education Department's variance office was directed to contact the district concerning the status of its principal appointments and the submission of a variance request in the event “an alternative mode of building administration” is still desired.

As an example, a variance was granted to a school district that had decided to administer its two smallest elementary schools by assigning a team of one principal and two assistant principals to them. The Commissioner rejected an appeal contending that the District could not do this [Commissioner's Decision 10,851], commenting that both assistant principals held valid elementary principal certificates and were qualified to perform the duties assigned to them.

* Section 100.3 of the Regulations of the Commissioner of Education permit a waiver from the general provision that “each school in a District shall have assigned to it a qualified principal.”

Teacher claims his harassment by students violates Title VII and the Civil Rights Act

Teacher claims his harassment by students violates Title VII and the Civil Rights Act

Peries v NYC Board of Education, USDC, EDNY, 97 CV 7109(APR), 2001 WL 1328921

Vincent Peries was born in Sri Lanka in 1933. After he came to the United States in 1968, he received a Ph.D. in Adapted Physical Education and Child Development, as well as an MBA in international finance and a M.Sc. in Teaching English as a Second Language. After teaching at several colleges, he taught at several New York City public schools, including at Francis Lewis High School. At Francis Lewis Dr. Peries taught special education courses, working in both a resource room setting, where students receive individual assistance, and in self-contained classes.

Dr. Peries' Title VII and 42 USC 1981 complaints alleged that since the early 1990s, he has been subjected to a “steady barrage of insults and demeaning conduct from students based on [his] national origin and race.”

Federal District Court Judge Ross said that Peries' claim in this case is unusual in that the alleged harassment was not by co-workers, but by Peries' students and neither party identified any litigation involving this type of harassment. Judge Ross said the “most relevant cases in the Title VII context are those in which an employee has been harassed by the customers of his employer.”

In one case involving employees harassed by their employer's customers, Quinn v Green Tree Credit Corp., 159 F.3d 759, the U.S. Circuit Court of Appeals, Second Circuit, held that in such situations “such a duty can be no greater than that owed with respect to co-worker harassment.” In Quinn, the court referred to 29 CFR 1604.11(e), which provides:

An employer may also be responsible for the acts of non-employees, with respect to sexual harassment of employees in the workplace, where the employer . . . knows or should have known of the conduct and fails to take immediate and appropriate corrective action. In reviewing these cases, the [EEOC] will consider the extent of the employer's control and any other legal responsibility, which the employer may have with respect to the conduct of such non-employees.

Although there may be some circumstances in which an employer truly has little or no authority to control the actions of customers, rendering the employer's duty less than that for co-worker harassment, the relationship between school officials and students is not such a situation. In Davis v Monroe County Board of Education, 526 US 629, the Supreme Court held that a school board may be liable for the failure to stop students from sexually harassing other students if school officials are deliberately indifferent to the harassment.

As to Dr. Peries, the court said that he can prevail only if he can show first that a hostile environment existed and second that the school board either provided no reasonable avenue of complaint or knew of the harassment and failed to take appropriate remedial action.

Dr. Peries has shown the existence of a hostile work environment. The second issue: whether school officials took appropriate remedial action is a question of fact, not law.

The jury's analysis of this question can include such issues as what disciplinary options are available short of student suspension and what constitutes a proper division of student disciplinary responsibility between administrators and teachers.

Although Peries has failed to state a prima facie case with respect to his allegations that any school officials harassed him, his claim that school officials knew, or should have known, about the harassment by students and failed to take appropriate remedial action may go to a jury.

Accordingly Judge Ross ruled that Dr. Peries' Title VII hostile work environment claim against the Board of Education survived, but his civil rights claims against the individual defendants must be dismissed.