BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
ELEVA-STRUM SCHOOL DISTRICT
(Grievance of Mark Ryser)
Pursuant to the provisions of their collective bargaining agreement, Eleva-Strum
District (District) and Eleva-Strum Education Association (Association or Union) jointly
that the Wisconsin Employment Relations Commission designate Sharon A. Gallagher, a
of its staff, to serve as arbitrator to hear and decide a dispute concerning the non-renewal of
Ryser. The hearing was held on August 12 and 13 and September 30, 1997, in Eleva,
at which time the parties were afforded full opportunity to present relevant testimony,
and other evidence and argument. No stenographic transcript of the proceedings was made.
parties submitted their initial post-hearing briefs, which were simultaneously exchanged
the arbitrator, on November 3, 1997. Thereafter, the parties filed reply briefs by December
1997, whereupon the record was closed.
The parties stipulated that the following issue should be determined in this case:
Did the District have just cause to non-renew the Grievant? If
not, what is the appropriate
TEACHERS/UNIT MEMBERS RIGHTS
1. Teacher/Unit Member Evaluation
a. All monitoring or observations of
the work performance of the teacher/unit
member shall be conducted openly and with full knowledge of the teacher/unit
member. The use of audio systems or similar surveillance devices shall be strictly
prohibited unless previous approval by teacher/unit member being evaluated.
b. Any teacher/unit member evaluation shall result in a
written report. Teachers/unit
members shall be given a copy of any evaluation report prepared by their
supervisors and shall have the right to discuss such a report with their superiors
before it is submitted to the administration or put into their personnel files.
c. Any complaint regarding a teacher/unit member made to
the administration by any
parent, student, or other person shall be recorded, dated and called to the
teacher/unit members attention. The record shall include the name of the
complainant, the date and time of the complaint, and the exact nature of the
complaint. No record of any complaint made anonymously shall be recorded or
brought to the attention of the teacher/unit member.
d. All teachers/unit members new to the School District of
Eleva-Strum will be placed
on probation for three (3) consecutive school years of teaching. However, these
teachers/unit members may not be non-renewed for arbitrary or capricious reasons.
Upon completion of the probationary period, no teacher/unit member will be non-renewed
except for cause.
e. Recourse to any action by the Board to discipline,
suspend, discharge, or non-renew any nonprobationary teacher/unit member shall be through
. . .
C. SUSPENSION, DISCIPLINARY ACTION, NONRENEWAL,
a. The District Administrator may
suspend a teacher/unit member without pay, but
the Board must act on the suspension within three (3) working days or the
suspended teacher/unit member receives full pay for the suspension period. If the
administrator's decision to suspend is overruled by the Board, the teacher/unit
member is reinstated with full back pay.
. . .
a. At least fifteen (15) days prior to
giving written notice of refusal to renew a
teachers/unit members (sic) contract for the ensuing year, the employing Board
shall inform the teacher/unit member by preliminary notice, in writing, that the
Board is considering nonrenewal of the teachers/unit members contract. If the
teacher/unit member files a request within five (5) days after receiving the
preliminary notice, the teacher/unit member has the right to being given written
notice of intention to non-renew his/her contract.
b. On or before March 15 of the school year during which
a teacher/unit member
holds a contract, the Board by which the teacher/unit member is employed or a
teacher/unit member, at the discretion of the Board shall give the teacher/unit
member written notice of renewal or refusing to renew his/her contract for the
ensuing school year. If no such notice is given on or before March 15, the contract
then in force shall continue for the ensuing year, or a teacher/unit member who
does not receive notice of renewal or refusal to renew his/her contract for the
ensuing school year on or before March 15, shall accept or reject, in writing, such
contract not later than the following April 15. No teacher/unit member may be
employed or dismissed except by a majority vote of the full membership of the
Board. No such Board may enter
into a contract of employment with a teacher/unit
member for any period of time
as to which the teacher/unit member is then under contract of employment with
a. The Board, through its
administration may discharge a teacher/unit member for
conviction of offenses related to sexual misconduct, production, sale or distribution
of illegal substance and similar offenses.
b. The district administrator shall notify the teacher/unit
member, in writing, of any
alleged infractions, as stated in (a), that could result in his/her discharge.
c. All information and evidence forming the basis for
discharge shall be given to the
teacher/unit member, the Association and the Board.
d. The teacher/unit member shall be permitted to appear
before the Board, during
closed session at which the Board is considering his/her discharge.
e. The discharged teacher/unit member, at his/her own
option, may be accompanied
by one other association teacher/unit member or legal counsel during the discharge
f. Previously scheduled meetings or discussions involving
discharge proceedings shall
not interfere with duties or classroom instruction.
g. The Board shall deliberate in private, but shall reach its
decision in open session.
The teacher/unit member may request the action to take place in a closed session.
5. Just Cause
a. A teacher/unit member shall not be
disciplined, suspended, nonrenewed or
discharged except for just cause.
. . .
RELEVANT DISTRICT POLICY
On March 22, 1993, the District adopted the following policy regarding sexual
A. It is the policy of the Eleva-Strum School District to
maintain a learning and
working environment that is free from sexual harassment.
B. It is a violation of this policy for any employee or
volunteer of the Eleva-Strum School
District to harass another employee, volunteer, or student through conduct or
communications of a sexual nature as defined under "DEFINITION" below.
It is also a violation of this policy for students to
harass other students, employees, or
volunteers through conduct or communications of a sexual nature as defined under the
A. Sexual harassment is a form of sex discrimination, and is
illegal as defined by Title
IX of the Educational Amendments of 1972, Title VII of the Civil Rights Act, the
14th Amendment of the Constitution, and numerous state criminal and civil
statutes. Unwelcome sexual advances, requests for sexual favors and other verbal
or physical conduct of a sexual nature constitute sexual harassment when:
(a) submission to such conduct is made either explicitly or
implicitly as a term or
condition of an individual's employment;
(b) submission to or rejection of such conduct by an
individual is used as the basis for
employment decisions affecting such individual; or
(c) such conduct has the purpose or effect of unreasonably
interfering with an
individual's work performance or creating an intimidating, hostile, or offensive
B. Sexual harassment, as set forth under "DEFINITION -
A" above, may include, but is not
limited to the following:
- verbal harassment or abuse
- pressure for sexual activity
- repeated remarks to a person, use of inappropriate
language or jokes with sexual
- unwelcomed touching or unsolicited, inappropriate
- suggesting or demanding sexual involvement
accompanied by implied or explicit
threats concerning one's grades, job, etc.
- repeated display of offensive, sexually graphic materials
which is not necessary for
The building principal is the designated sexual harassment officer
in the District and is
responsible for coordinating federal regulations concerning sexual harassment. The
of this policy shall be processed according to the following procedure:
1. Any complaint will be presented in writing or orally to
the building principal, unless the
alleged offender is the building principal, in which case the complaint would be presented
directly to the superintendent and be handled by him/her.
a. Oral complaints will be handled
b. If the complaint is submitted in
writing, (it should include the specific nature of the
harassment and corresponding dates, and also include the name, address, and
phone number of the complainant) the following steps will be taken to resolve the
1) The building principal will
promptly notify the superintendent regarding the
complaint, file a copy of the complaint with the superintendent, and
promptly investigate the complaint, notify the person who has been accused
of harassment, arrange meetings to discuss the complaint with all concerned
parties, and submit a report of the results of the investigation to all parties
within ten (10) working days after receipt of the written complaint. The
building principal may exercise discretionary authority to discipline the
employee, volunteer, or student involved if he/she feels satisfied that the
evidence as presented warrants.
2) If the complainant is not satisfied with the result
of the investigation and
follow up activities by the building principal, he/she may submit a written
appeal to the superintendent indicating the nature of disagreement with the
report and the reason underlying such disagreement. Such appeal must be
filed within ten (10) working days after receipt of the building principal's
report. The superintendent will arrange a meeting with the complainant or
other affected parties, if requested by the complainant or deemed
appropriate by the superintendent, at a mutually agreeable time, to discuss
the appeal. The superintendent will give a written response to the
complainant's appeal within thirty (30) working days. The superintendent
may exercise discretionary authority to discipline the employee, volunteer,
or student involved if he/she feels satisfied that the evidence as presented
warrants the discipline.
3) If the complainant or the superintendent wishes to
pursue the matter
further, either party may file an appeal requesting a meeting with the
superintendent within ten (10) working days after the decision in Step 2 has
been rendered. The superintendent shall review the matter with the
appropriate parties and provide a response to the appeal within ten (10)
4) If the complainant or the superintendent wishes to
pursue the matter
further, either party may file an appeal requesting a hearing with the Board
of Education within ten (10) working days after the decision in Step 3 has
been rendered. The Board of Education will hear evidence regarding the
matter in closed session and take appropriate action to resolve the matter as
soon as practicable.
A. A substantiated charge against an employee or volunteer
in the school district will
subject the employee or volunteer to appropriate disciplinary action, including
B. A substantiated charge against a student in the school
district will subject that student to
student disciplinary action, including suspension and/or expulsion, consistent with the
student disciplinary code and/or referral to County Social Services.
C. Employees, volunteers or students are encouraged to file
a bona fide complaint of conduct
prohibited by this policy to fully advise the School Board of any instances of improper
conduct or violations of this policy. Individuals who retaliate against an employee,
volunteer or student who files a bona fide complaint under this policy or who assists in an
investigation under this policy shall be subject to immediate, appropriate disciplinary
action for such conduct.
Notice of this policy will be distributed to all district employees
and incorporated in staff and
Regardless of how its appearances and existence are rationalized,
sexual harassment interferes
with the right to receive an equal educational opportunity. We therefore wish to let our
and staff know through our written policies, seminars, and actions that:
(a) We do not tolerate sexual harassment;
(b) We take all sexual harassment accusations very seriously;
(c) We work to empower people themselves to handle
potential sexual harassment
(d) We do our best to protect the rights of everyone involved
as we try to resolve all
All complaints will be kept confidential to the maximum extent
STIPULATIONS OF THE
By letter dated November 18, 1997, the parties agreed as follows regarding the
of this Award:
. . .In summary, the Award could provide an introduction which
sets out Arbitrator
Gallagher's appointment as the arbitrator, hearing dates, statement of the issues, statement of
facts, and perhaps, a brief summative statement of the arbitrator's rationale and the award,
either dismisses or sustains the grievance. In the event of the latter, Arbitrator Gallagher
possesses the authority to fashion an appropriate remedy. . .
The following is a summary of the pertinent actions taken by the District regarding
employment in the District between 1984 through the end of the 1994-95 school year:
2/14/84 Possible nonrenewal or probationary contract
threatened in written
memorandum. Issues involved discipline; lack of helping students; off-color comments,
stories, music and posters from personal parties or get-togethers. The Board offered a
regular contract to M.R. for 1984-85.
8/27/84 Principal Gary Marine notes an observation of M.
placing both hands on
shoulders of a female student. No complaint from the student is filed (Dist.
4/17/86 Principal Marine reprimands M.R. in writing for
following up on a
student's suggestion to figure out the time it would take to urinate from the
roof of a building until the urine struck the ground.
James Tocko is Principal of
Eleva-Strum High School. No problems are
reported regarding M.R. by Tocko.
3/31/92 Superintendent Gary Marine reprimands M.R.
(with threat of future
suspension or discharge) for allegedly putting his arms around a female
student in the hallway and giving her a hug and several kisses on the neck.
The female student advised the Administration that she did not solicit,
welcome, or appreciate M.R.'s conduct. 1
No problems reported by Principal Tocko
regarding M.R. Elementary
Principal Semingson is trained for and becomes Title IX Coordinator.
8/23/93 Sexual Harassment In-Service given at ESSD.
9/93 Dr. Zavada becomes Superintendent when
Superintendent Marine leaves for
10/13/93 After observing M.R.'s class, Principal Tocko
issues a memoranda to M.R.
to "be careful about the remarks made in regards (sic) to the different
sexes", and to be "super conscious of any contact whatsoever with
8/94 M.R. begins using CPM Program in his Math I
and II classes.
9/94 Female student JH files a complaint in November
1994 alleging that M.R.
made a statement in September to the effect of "What's the matter, J.?
Didn't you get enough sex during the summer?"
9/7/94 Principal Tocko issues a memorandum informing
M.R. not to talk about short-shorts, car wash and bikinis, or math problems being done from
the front or the
10/11/94 Memo warning M.R. from Principal Tocko. 3
11/29/94 In M.R.'s Math class, female student MD was
holding a new eraser, which
M.R. comments on by asking if it is a new birth control device. Student
makes a formal complaint which is investigated. M.R. admits he made the
statement and subsequently apologizes in writing. 4
11/94 Female students TH and CS file written
complaints that M.R. gave them
the finger in Math class.
12/1/94 Letter of reprimand issued to M.R. for the
TH/CS complaints. 5
2/12/95 Complaint from Mrs. Jane Hermundson. M.R.
allegedly did not advise her
of her daughter's progress, even though she had requested this information.
2/27/95 Mrs. Hermundson writes a complaint to Title IX
several inappropriate comments and some conduct that M.R. engaged in
with her daughter and other students. 6 This
complaint is eventually
appealed to the Department of Public Instruction.
3/16/95 Semingson Title IX investigation report on
Hermundson complaint. 7
3/22/95 Superintendent Zavada issues a three-day
suspension to M.R. based on
Hermundson's complaint. Grievance filed. 8
5/15/95 Board agrees to one-day suspension of M.R., a
reduction from a three-day
suspension issued by Zavoda, M.R. drops grievance.
M.R. taught high school Mathematics at Eleva-Strum School District for
22 years before his non-renewal on March 12, 1997. M.R. was the only High School Math
teacher at the District. Since approximately 1993 or 1994, M.R. has taught an innovative
program in all of his high school math classes known as College Preparatory Math (CPM).
requires students to work in groups and teach each other mathematics without assistance
from the teacher unless all of the students in the group have the same question or they
reach a consensus regarding how to complete a mathematics problem. It is undisputed that
students have performed above average in mathematics on standardized tests and that they
also performed above the national average in mathematics during all times relevant hereto.
There were no problems reported with M.R.'s teaching or conduct during the school
1995-1996. During the school year 1996-1997 the following incidents occurred. In the Fall
1996, a parent, Mrs. Sleep, spoke to Dr. Hitchens, District Superintendent, regarding her
daughter's performance in M.R.'s Math I class. (Mrs. Sleep's daughter was then a
Mrs. Sleep spoke to Dr. Hitchens in September, prior to the end of the nine-week
Mrs. Sleep told Dr. Hitchens that she was concerned that her daughter was not learning math
she should in M.R.'s class; that the manner in which M.R. taught his class made it difficult
her daughter to learn math; and that her daughter was frustrated, upset and on edge because
this. Mrs. Sleep also told Dr. Hitchens about a comment M.R. made to her daughter
to the effect that if her daughter's sweater weren't so tight, she (the daughter) could learn
more easily. As a result of this discussion with the parent, Dr. Hitchens directed Elementary
School Principal Semingson (Title IX Investigation Coordinator) to investigate
statements to him which Hitchens believed constituted "rumors, reports or complaints of
misconduct or suspicious conduct".
Semingson proceeded to investigate the allegations made and issued a report dated
December 19, 1996, which read, in relevant part as follows:
. . .The investigation included discussions with students who are
presently in a course taught
by M.R., and a discussion with M.R. while having Mr. Tocko and an association
also present. I interviewed twelve students in small groups and shared the results with M.R.
giving him an opportunity to respond to any of the findings.
I began the student discussions by telling
them that I was investigating student's attitudes
toward the math program. I told them that I had three main questions but that I may ask
elaborate or give examples of specific things that are brought up. The three questions were:
"Describe a typical day in math class."
"What is the general atmosphere of the
"Describe the classroom discussions."
I told the students that I would be writing a report on my findings
but that their names would
remain confidential and that if they did not want to be part of the interview they may go back
class. All students chose to remain and be part of the interview.
With all of the groups interviewed, some common comments were
made about M.R.'s classes.
First, students reported that there is a lot of "arguing" between the class as a whole and
Most of this seems to be about the class not understanding the material, the students having
"teach each other", and the lack of assistance from M.R. There were also concerns raised
regarding the use of inappropriate language by M.R. and students. The two words heard
often, "almost daily", from the students were "shit" and "fuck". When asked if M.R. also
these words all group's responses were affirmative. When asked what Mr. R. does when he
those words the responses were "ignores them", "warns the students" and "gives students
detention". One student said that he was given detention for saying "cocksucker". The
said that M.R. thought "I was saying it to him", when actually the student made this
a girl in retaliation for calling him an "asshole". When asked if M.R. uses this type of
with the students, three groups responded no and one group responded "yes, sometimes in
A second common topic discussed by all groups was that of
M.R.'s jokes. "He tells lots of
jokes." I asked what the jokes were like and all groups said "dumb". When I asked if any
inappropriate or suggestive, two groups said yes, sometimes, but only one group could
any examples. Two examples given were about "Winnie the shit" and witches' husbands
"hollow weanies". Remarks made by the students describing M.R. included "stupid", "a bad
teacher", and "pervert".
Of the students interviewed, two females commented about
remarks being made by M.R.
directly to them which made them feel uncomfortable. According to one new student, M.R.
a statement in September about her shirt being so tight that blood couldn't get to her brain
another statement about her smelling good. The other student said that M.R. often makes
comments about her being good looking.
During the December 10th meeting with Mr. Ryser, I shared all
of the above information and
invited him to respond to any of it, directing him to be "truthful and honest" and that
giving false information may result in disciplinary action up to and including discharge.
informed me that he had been
advised not to enter into any discussion about allegations at this
time. He did, however,
comment on some of the items discussed.
I informed M.R. that of the two basic categories of sexual
harassment, Quid Pro Quo and
creating a hostile environment, I consider this a hostile environment case caused by his
take consistent and appropriate action, inability to keep order and control in his class, and
comments and jokes he has made to the students.
Mr. R. chose to comment on some of the items brought to his
attention. First, he felt that he
does take action on the inappropriate language in the classroom as evidenced by the large
of students whom he has put on detention this year. Second, he said that his joke about
the shit" was just a "cute joke" and not offensive. Third, his class is discussion based and
will be disagreements. Fourth, he didn't remember whether or not he had made comments
a tight sweater, how a student smells, or how a student looks, but if he said these things,
were not offensive comments nor did they have any hidden meaning. Finally, when asked
the student who said "cocksucker", Mr. R. said that he wasn't sure who the statement was
toward, but that he gave the student detention because the statement was inappropriate
of the person for whom it was intended.
Under Title IX of the Educational
Amendments of 1972, it is the responsibility of each school
district to ensure a learning environment which is not hostile, intimidating, or offensive.
Administrators and teachers have a legal duty to ensure that each classroom is free of
and suggestive jokes, language and comments. Although M.R. seems to have made some
to curb offensive language in his classroom through detentions, it is not consistent and the
appear unsuccessful. According to the students, this type language would
never be tolerated in
other classrooms and it is only M.R.'s classes which are out of control in this way. Based
discussions with students, I believe M.R. projects an attitude of sometimes it's okay to use
profanity in the classroom and sometimes it isn't. Some of the jokes told by M.R. also
Being an experienced teacher of adolescent students and having
had inservice training on Title
IX and sexual harassment, M.R. is expected to know that many students of this age are
by off color jokes and offensive language and are also especially sensitive to comments about
looks, smells, or dress. He should also understand that these create a classroom climate
make many students uncomfortable which actually inhibits learning.
The records reveal that this behavior has been a historic problem
with M.R. In March of
1995, M.R. was involved in another sexual harassment case in which a complaint was filed
him by a parent. M.R. received a disciplinary suspension of one day without pay. I believe
district has a legal obligation under Title IX to take further disciplinary measures in an
to ensure a hostile free learning environment for students and employees.
It should be noted that M.R. told the two jokes referenced above to Math III students
in class at
the end of October, 1996.
On December 12, 1996, the State of Wisconsin Department of Public Instruction
issued its final decision regarding Mrs. Jane Hermundson's appeal of her 1995 complaint
M.R. and the District, finding that the District violated Sec. 118.13, Stats. After the
received the copy of DPI's decision, Dr. Hitchens and M.R. had a discussion regarding
Mrs. Hermundson would exert her right to make this report public. Ultimately, Mrs.
Hermundson decided not to make the DPI decision a public document and the controversy
her complaint (and M.R.'s conduct which gave rise to it) died down.
On December 19, 1996, Dr. Hitchens held a meeting which M.R. and his
representative attended along with Semingson and Principal Tocko, in which Hitchens
M.R. regarding M.R.'s having told his Math III students the "Winnie the Shit" joke. At this
meeting, M.R. stated, "I said 'Winnie the Ship', not the other term. I alluded to it."
interview, M.R. also admitted having told the "Hollow Weanies" joke to his students. M.R.
stated that he would not tell jokes of this nature to his classes again. Dr. Hitchens asked
during this interview whether he understood that the incidents that had been investigated
lead to his (M.R.'s) termination. M.R. responded that he did not understand this, and that
were lots of next steps that the District could take. 10
On December 19 and 20, 1996 and January 3 and 10, 1997, M.R. spoke with Dr.
regarding what action the District anticipated taking concerning Semingson's Title IX
During these discussions, Dr. Hitchens offered to allow M.R. to resign and take a one-day
suspension along with a severance package, rather than face a longer suspension of three
non-renewal at the end of the school year. On January 10, 1997, Dr. Hitchens issued the
following Memorandum to M.R. regarding what actions the District would take following
Semingson's report of December 19, 1996:
. . .
I have finished my review of both Mr. Semingson's The
Title IX Investigation Report, dated
December 19, 1996 and my notes of the meeting held on that same date involving you, Mr.
Tocko, Mr. Semingson, Mr. Warren Behm (as ESEA representative) and me.
The conclusions from that review are as follows:
1. That the alleged incident of your inappropriate remark to
a female student regarding either
her shirt or sweater being too tight did, in fact, occur.
2. That the telling of inappropriate jokes to students in your
charge such as "Winnie the Shit"
and "hollow weanies" did, in fact, occur.
3. That student use of inappropriate language in the
classroom, did, in fact, occur, however
there is also reason to believe that you attempted to control it.
4. That your occasional classroom use of inappropriate
language such as "shit" did, in fact,
These actions on your part are serious violations of the trust the
public places in us when
interacting with their children. You have allowed a hostile environment to continue to exist,
though you have been warned and directed over the years of your employment to improve in
Your repeated unwillingness to follow directives given to you by
your supervisors causes me
to have serious concerns about your sincerity of "I wouldn't do it again".
As a result of these most recent incidents, you will be suspended
from work without
compensation for one day (January 20, 1997). You are also directed to establish and
appropriate, non-hostile classroom environment in which all verbal and non-verbal behavior
your part is above reproach. You are also hereby directed to take whatever professional
necessary to establish and maintain an appropriate, non-hostile classroom environment in
all verbal and non-verbal behavior on the part of the students in your charge is above
Failure on your part to follow these directives will, in all
likelihood, result in my
recommendation that your employment in this district be terminated.
On January 13, 1997, Hitchens issued the following Memorandum to M.R. regarding
"current disciplinary action, possible non-renewal":
. . .
I truly regret that the process to secure both your resignation and
a reasonable level of
financial security failed late Friday afternoon. I had thought we were well on our way to a
resolution after our earlier discussions on December 19th and 20th and again when you
in to talk on January 3rd.
The letter of reprimand issued on Friday, January 10, 1997,
which included only one day's
suspension without pay, was a direct reflection of those discussions, as was the honoring of
specific request to have that day be January 20, 1997. The reduction in suspension from
days to a single day was, of course, supposed to be coupled with your probable resignation,
I recognize your right to act according to what you believe is in your best interest. I
have no intention of altering your suspension.
As we discussed in both December and January, the Board will
now begin its process tonight,
January 13, 1997, toward the possible non-renewal of your teaching contract. They will also
on the one-day suspension you were issued on Friday, January 10, 1997.
As outlined in the Master Agreement, you have opportunities to
request hearings before the
Board regarding both the suspension and possible non-renewal. Please review those portions
the agreement and let me know if you wish to partake in any of those opportunities.
. . .
Dr. Hitchens' offer of a one-day suspension along with a severance package and was
always tied to the condition that M.R. resign from employment. Dr. Hitchens stated that he
that M.R. might accept his proposal up until the Board took its final action on M.R.'s
and that this was, in part, the reason why Hitchens did not seek a multiple-day suspension
with a non-renewal of M.R. before the Board in March, 1997. 11
Also on January 13, 1997, a parent called Dr. Hitchens and complained about a lack
control in M.R.'s classroom as well as inconsistent punishment of students by M.R. This
complaint was put in writing by the parent and received by the District on February 24,
it was forwarded to M.R. on February 28; and it was discussed with M.R. and
the District, including Dr. Hitchens on March 3, 1997. As the process of non-renewal had
already begun when the parent's complaint was received in writing, Dr. Hitchens did not
formally on this complaint. 112
On February 12, 1997, Dr. Hitchens issued M.R. a preliminary notice of
pursuant to Sec. 118.22, Stats. Dr. Hitchens' recommendation for non-renewal was based
a. Failure to follow administrative directives to cease
inappropriate verbal and non-verbal
interaction with students, including inappropriate jokes.
b. Failure to follow administrative directives to establish an
c. Repeated failure to follow Board of Education Policy
GBAA, Sexual Harassment.
By memo dated March 6, 1997, Dr. Hitchens notified M.R. that he would recommend
Board of Education non-renew M.R.'s contract for the 1997-98 school year, at the Board's
10, 1997 regular meeting. By memo dated March 12, 1997, Dr. Hitchens informed M.R.
the Board of Education, by a 7-0 margin, had voted to non-renew his teaching contract for
1997-98. In addition, Hitchens' memo stated that the reasons for the Board's decision were
deficiencies listed in Hitchens' February 12th memo and also stated:
. . .You are further advised that pursuant to S.S. 115.31, which
defines immoral conduct as
"behavior that is contrary to commonly accepted moral or ethical standards and that
health, safety, welfare or education of any pupil", a report of the Board's action will be filed
the state superintendent.
. . .
Six students were called to testify in the instant case, five female students and one
student. The male student stated that M.R. made no inappropriate comments to students,
M.R. did not swear in class, and that he did not tell jokes in class. This male student stated
he took math during his freshman and sophomore years (1995-97) from M.R. One female
who had graduated at the time of the instant hearing, stated that she had M.R. for Math
in 1993 through 1996 and that although M.R. told jokes, none of these were harmful or
inappropriate in her opinion. This student stated that M.R. treated students with respect and
M.R. told students not to swear in class.
The remaining four female students (including H.S.) stated that M.R. told
jokes in their classes (both a Math I class and a Math III class). Two of these female
stated that they felt that M.R. inappropriately placed single girls alone in groups with several
boys. All of these female students stated that M.R.'s jokes were gross, dirty and disgusting;
that they were distracting, embarrassing or inappropriate. One of these students stated that
would say he was sorry for telling jokes, and assure the class that it would not happen again.
However, the student stated, M.R. continued to tell jokes. One student also stated that M.R.
swore and used words such as "damn", "shit", and once he used the word "bitch" in class.
Another of these female students stated that M.R. used the words "damn" and "shit"
than once each week, and that M.R.'s classes were loud, his students were confused, and
M.R. would not help the students. Two of these female students stated they heard M.R. tell
"Winnie the Shit" and "Hollow Weanies" jokes in class. Two other students remembered
M.R. told inappropriate jokes but could not remember the jokes. Two of these students
M.R.'s students had the impression that Mr. Tocko would do nothing regarding complaints
M.R. because Mr. Tocko and M.R. were good friends; and because students had complained
the past and nothing had been done. 13
Female student H.S. (daughter of Mrs. Sleep) stated that there was only one other
her Math I class with M.R. in 1996. She stated that some of the things that M.R. said in
were not appropriate; that she did not know how to deal with this and that she dreaded going
M.R.'s class. In regard to the comment M.R. made concerning her sweater, H.S. stated that
had told M.R. that she did not understand math and that M.R. responded "Maybe if your
wasn't so tight, you could figure it out." H.S. stated that at least two other students heard
remark and that it made her angry because the comment was out of place. In regard to
comment that H.S. "smelled good", H.S. stated that M.R. told her "you smell good" and
"what is that?" H.S. stated that she felt this comment was inappropriate but she admitted
M.R. allowed students to chew gum in his class and that M.R. could have been referring to
that she may have been chewing at the time the comment was made, rather than to her body
Regarding M.R.'s comment to H.S. that she would make a "good-looking bum", H.S. stated
this comment made her angry and that some members of the class heard it and told M.R.
comment constituted sexual harassment. H.S. also said the boys in class teased her about
various comments to her.
M.R. stated that he did not intend to comment on H.S.'s body by his comments to
1996; that he (M.R.) made comments to H.S. to help her to relax about math; and that H.S.
objected to his comments. M.R. stated he also made comments to boys in his classes that if
hats weren't so tight, they could figure out their math more easily. M.R. admitted to having
"shit" in class; to having made the "sweater" and "good-looking bum" comments to H.S. and
he might have made the front/rear math operation comment while a female student was at the
chalk board working a math problem.
M.R. admitted that he told the "Winnie the Shit" joke once in October, 1997 in a
III class (containing mostly high school sophomores and juniors) and that he also told the
Weanies" joke once in his Math III class at the end of October, 1997. M.R. was asked to
repeated these jokes under oath herein. I will not recount them here. I find the jokes M.R.
were off-color and inappropriate and that they would be distracting to young people.
As this is a non-renewal case, the District has the burden to show that it had just
its actions pursuant to Article V, Section C of the labor agreement. The Association has
that the District should be held to a higher burden of proof in this case as the outcome hereof
affect M.R.'s reputation. I am sensitive to the Association's concerns in this regard. As the
allegations in this case involve moral turpitude, and could affect M.R.'s reputation, a
basis exists for applying a more stringent burden of proof herein -- that of clear and
evidence. The clear and convincing evidence standard will, therefore, be applied herein. 14
The Association has argued that M.R.'s conduct did not rise to the level of sexual
harassment as defined in the District's policy. In my opinion, there is no doubt that the
M.R. engaged in from 1993 forward constituted "use of inappropriate language or jokes with
sexual implications" which "created an intimidating, hostile or offensive environment" in
classroom, pursuant to the District's Sexual Harassment Policy. In addition, the application
the District's Sexual Harassment Policy does not require the application of statutory
The Association has also argued that because M.R. did not intend to offend anyone
comments, because M.R. did not tell his jokes in the context of sexual implications, because
M.R.'s students failed to object to M.R.'s jokes/statements, and because M.R. kidded his
students about their hats being too tight to allow them to do their math properly, that this
proved that M.R. did not sexually harass female students. I strongly disagree. Whether
intended to sexually harass or intimidate female students is not relevant to the issue whether
harassment occurred in this case. Rather, it is the perception/impression of the victims
determines whether sexual harassment has occurred. Furthermore, the fact that M.R.'s
may not have formally complained about his statements does not prove that M.R.'s female
students did not, in fact, feel sexually harassed or intimidated thereby. It may have been the
that the young women in M.R.'s classes were so shocked or offended by M.R.'s verbal
harassment that they were rendered speechless thereby or that they did not wish to call
attention to themselves by objecting to M.R.'s comments. It is significant that in 1994 one
was reportedly reluctant to ask questions of M.R. for fear that he would touch her. In
two of the students who testified herein stated that they believed that to complain about M.R.
would be fruitless, as the District had failed to take action on complaints made in the past
because these students believed Principal Tocko and M.R. were friends.
Finally, in my view, M.R.'s comments regarding the tightness of boys' hats were not
and sexually explicit as M.R.'s comment regarding the tightness of H.S.'s shirt. Therefore,
cannot conclude that no students were sexually harassed by M.R.'s statements due to his lack
intent to harass, the lack of complaints about his conduct, or his neutral comments to male
M.R.'s conduct over many years (set forth in the "Background" portion of this
demonstrates that M.R. had severe problems interacting properly with female students from
until his non-renewal in 1997. The fact that no complaints were lodged with Principal Tocko
during the 1986-91 and 1992-93 school years does not require a different conclusion.
fact that no complaints were lodged during these years may have been largely due to the
failure (prior to 1993) to have a comprehensive, publicized policy against sexual harassment
place. It is also significant that in December, 1996, the DPI sustained the Hermundson
and found that in 1995 the District had failed to identify an appropriate sexual harassment
and to properly publicize that policy to students, parents and staff.
The Association has also argued that because no misconduct was reported during
regarding M.R. and because M.R.'s statements/conduct prior to 1997 were more severe than
M.R.'s 1996-97 comments, the District should not have non-renewed M.R. in 1997. If these
arguments were accepted, the District would have to start over with its disciplinary actions
time an employe "cleaned up" his/her act for a period of time, regardless of the seriousness
employe's prior misconduct. Such an approach would be neither prudent nor appropriate in
case, given the egregious, essentially undisputed misconduct M.R. engaged in during
On this point, I note that in 1994, M.R. received three letters of reprimand for numerous and
various statements he made to female students. 15 It is significant that M.R. failed to grieve the
issuance of any of these letters. From the record evidence, it appears that between four and
students and one parent complained to the District about M.R.'s statements/conduct during
1994-95 school year which resulted in the issuance of the above-described reprimands and a
suspension in May of 1995.
In addition, I find unpersuasive the Association's argument that because the District
been lenient in the past with M.R., that M.R. should be allowed to rely on this leniency in
future. In this regard, I do not believe that a reasonable person could conclude from the
actions against M.R. in 1994-95 that is was lenient or that the District would overlook
future transgressions. Indeed, the documents which memorialized the reprimands and
that M.R. received in 1994-95 are expressly to the contrary. As far back as 1984, M.R. was
warned repeatedly and specifically not to engage in the kind of conduct for which he was
non-renewed. M.R. never got the message and the District appropriately concluded in 1997
could not or would not change his ways. Even assuming the District had been lax in the past
disciplining M.R., this does not mean that the District could not tighten its standards.
after December, 1996, the District was under a DPI order to improve its
track record in the area of sexual harassment. I believe Dr. Hitchens' administration
did so in the
case of M.R.
I turn now to the statements which led to M.R.'s non-renewal in 1997. In my
the record herein shows that Principal Semingson's investigation was fair and exhaustive and
M.R. was given a full opportunity to hear and respond to the charges made against him. In
regard, I believe the record justified why M.R.'s comment relating to H.S.'s tight sweater
not reported to M.R. until December, 1996, and why no written complaint was filed thereon
Mrs. Sleep. In addition, I do not believe that Mrs. Sleep's concern over her
to learn Math and her complaints regarding M.R.'s teaching style lessen the seriousness of
"tight sweater" comment which Dr. Hitchens (appropriately) felt should be referred to
for investigation. Therefore, I am not persuaded by the Association's argument that M.R.'s
sweater" and "good looking bum" comments (which H.S. credibly testified to and M.R.
were unreliable or unconvincing, as the Association claimed herein.
In addition, I note that M.R. admitted telling both the "Winnie the Shit" and "Hollow
Weanies" jokes to students in his Math III class. Furthermore, several students stated that
allowed his students to swear in class and that M.R. used the words "shit" and "damn" in
16 These jokes and M.R.'s profane language
are clearly inappropriate for the classroom. The
fact that M.R. spoke this way before his students shows not only a lack of good judgment on
part, but also a failure to model appropriate behavior for his students and a disregard for the
sensitivity of teenagers to sexual and inappropriate language and suggestions. A high school
classroom is not a home, and M.R.'s students were not members of his family. Thus, the
M.R. would have told these jokes to his family in his own home is completely irrelevant to
case. As stated above, the fact that students did not volunteer complaints about M.R.'s jokes
his language and the fact that M.R. never intended to offend anyone by his
does not mean that M.R.'s jokes and his language were any less offensive, distracting and
inappropriate in classrooms full of young, impressionable students. Indeed, it is significant
M.R. stated herein that he would not tell (and has not told) these jokes again in a classroom
In these circumstances and given M.R.'s history of past discipline for the same kind
misconduct, I believe the District produced clear and convincing evidence that M.R. failed to
follow District directives to cease inappropriate verbal interaction with students including
inappropriate jokes and that therefore, M.R. failed to follow Board policy prohibiting sexual
In regard to whether M.R. failed to establish an orderly and non-threatening
environment, one need only look closely at Semingson's report of the verbal and physical
harassment reported by the twelve students interviewed to conclude that M.R. failed to create
maintain a non-threatening environment for learning in his classroom. 19 In all of the
circumstances of this case and given M.R.'s many admissions of misconduct in 1994, 1995
1996, I believe the District proved all of its reasons for non-renewal of M.R. by clear
The only issue that remains is the "double jeopardy" issue raised by the Association.
this point, Dr. Hitchens testified in direct contradiction to M.R. Dr. Hitchens stated that he
it clear to M.R. in their discussions in late December, 1996 and early January, 1997, that his
of a one-day suspension and severance package was conditioned upon M.R. resigning. Dr.
Hitchens explained that when his offer of settlement fell through after January 10, 1997, he
decided not to seek an increased suspension penalty (along with non-renewal), as he
hoped M.R. would accept his (Hitchens') settlement proposal and resign. Hitchens'
fully supported by his memo of January 13th. Both Hitchens' testimony and his January
memo require that the Association's double jeopardy arguments be rejected. In my view, it
clear that the District intended to suspend for one day and non-renew M.R. for his conduct
1996 and that this did not constitute double jeopardy -- punishment twice for the same
transgression or the increase of a penalty already imposed.
Although an Arbitrator may or may not agree with the level of punishment meted out
an employer, arbitrators generally will not second-guess the employer's decisions in this
Based upon the record herein, I see no reason to disturb the District's decision regarding the
of punishment given to M.R.: M.R.'s conduct was pervasive and severe. The District
considered M.R.'s past inappropriate conduct in determining the penalty to be assessed in
Similarly, the record fails to demonstrate that M.R. was non-renewed because he
Hitchens' settlement offer. Hitchens' January 13th memo stands to the contrary. If M.R.
understand that the severance package offer was tied to M.R.'s accepting a one-day
and submitting his resignation, as he claimed, he could have questioned Hitchens on this
M.R. failed to do this. In all of the circumstances of this case and based upon Dr. Hitchens
credibility as a witness as well as the clear language of Hitchens' January 13th memo, I do
believe M.R. was subjected to double jeopardy, and I issue the following
The District had just cause to non-renew the Grievant. The grievance is therefore
and dismissed in its entirety.
Dated at Oshkosh, Wisconsin this 10th day of February ,
Sharon A. Gallagher /s/
Sharon A. Gallagher, Arbitrator
1. District Administrator Marine's March 31, 1992, letter
to M.R. read in relevant part, as
A female student indicated to Mr. Tocko that at about 11:05
A.M. on Thursday, March 12,
1992, while waiting in the main hall for a ride home, she told you that she was going home
going to be missing your class that afternoon. She asked if you would miss her. She said
responded by putting both arms around her and giving her a hug and kissing her on the neck
or three times and saying that you would, indeed, miss her.
This student advised Mr. Tocko that she did not solicit, welcome
or appreciate the above-described encounter with you on the 12th. She indicated that
although you never kissed her before
you had hugged her before and that you hug female students often. These types of physical
contacts are subject to interpretation, often misinterpreted by adolescents. Students
misunderstand, are confused by or are embarrassed by physical contact from middle aged
of the opposite sex no matter what that teachers (sic) intentions at the time may have been.
I have cautioned you in the past to refrain from making physical
contact with students
(especially female students).
I expect you to immediately refrain from making any physical
contact with students. Future
violations of this mandate will result in serious disciplinary action, including the possibility
suspension and discharge. You should be aware of the fact that the district is required to
type of incident to the Department of Social Services. I also advise you not to discuss this
situation with this student as it may be to your advantage that she forget about it as soon as
2. A memo from Mr. Tocko to M.R. dated September 7,
1994 read in relevant part as follows:
. . .
Just some brief notes on our conversation between the four of us,
Ron Harper, Dr. Zavada,
you and myself on 9-6-94 at 1:00.
I had three students. . .leave your class on Friday,
September 2nd, 1994 and go to Mrs.
Solberg's office concerned that they were uncomfortable in your class because of what they
interpreted as innuendos, double meanings and remarks made to them or about them in class.
We had talked last spring about this kind of thing happening
unfortunately they can
become very serious accusations and often taken out of context by students (sic) parents,
I shared with you some of the things they mentioned, i.e.
sleeping in class and not getting
enough sleep the night before and why, short shorts, only if approved by you, car wash in
and in relationship to mathematical operations doing it from the front or the rear. I imagine
you don't remember saying some things, but you do remember other remarks. We also
briefly about taking points off of a test because of behavior not related to the time of the test.
Suggested (sic) that your remarks be relevant to the subject at
hand and although this may
restrict you in the way you usually like to operate your classroom, this probably would be
approach at this time. Avoid all remarks that could be of double meaning, sexual or
attention to individuals.
3. A memo placed in M.R.'s personnel file from Mr.
Tocko dated October 12, 1994 read in
relevant part as follows:
. . .
On 10-11-94 I shared with him a concern of a parent that their
daughter was not doing well
in his class and she was afraid to ask questions primarily because of a fear of being touched.
shared this with Mark and of course he said that he was conscious of that and would be
conscious of not touching girls.
. . .
4. The memo from Tocko to Zavada read in relevant part
. . .
was brought to my office at 12:30 on
Thursday, November 17, 1994 by Mrs.
Solberg. She related to me that Mr. Ryser had made a comment to her during 5th period
Geometry class on November 16, 1994. was using an eraser which looks
much like a pen.
Mr. Ryser asked her if it was a birth
control method. She told him the comment was inappropriate and
to stop making such
The next day, Mr. Ryser talked to her at lunch time in the
hallway and asked if they could
just forget what happened and give him one more chance. He said that they had a good
relationship the day before and didn't want is (sic) spoiled by one comment.
. . .
A memo to M.R. from Tocko, recounted M.R.'s response when asked on November
about the above incident, as follows:
. . .
Mr. Ryser admitted that the report was accurate and he was sorry
that it happened. His
comment was said jokingly, but he noticed that reacted seriously to the
comment. He realized
this and apologized for such.
. . .
5. The December 1, 1994 written reprimand from Tocko
to M.R. read in relevant part as
. . .
After reviewing the circumstances involving the second
of sexual harassment
reported to me this school year, it is necessary to request that you discontinue any and all
which are sexually explicit or offensive to students.
This is the first step in the process which could lead to
. . .
6. Mrs. Hermundson's letter of complaint read in relevant
part as follows:
. . .
I am writing to file a formal grievance as outlined in your
procedures. It is my belief that the principles and regulations of s. 118.13 have been
applied. My concerns revolve around the
unwanted and unwelcome sexual behavior exhibited by Mr. Ryser
and the follow up procedure
when female students reported these actions.
This type of sexual harassment occurring centers on a hostile
environment. Mr. Ryser's
classroom is cluttered with repeated actions of a sexual nature including lewd comments and
innuendos. These actions unreasonably interfere with the academic performance of the
They have had the effect of creating an intimidating, hostile and offensive school
My daughter, T., has reported witnessing the following
treatment by Mr. Ryser during the
first semester of the 1994-1995 school year:
Mr. Ryser tells female student he would date her if he were
Mr. Ryser tells female student he likes how
her sweater fits.
Mr. Ryser asks female student if her
unusual pencil is a birth control device.
Mr. Ryser rubs female student's shoulders.
The following were actions directed at my daughter as
Mr. Ryser tells T. she is sexy. Witness, B., Fall 1994
Mr. Ryser gives T. and two other girls the
finger. Witnesses, J. and C., Nov. 16, 1994
Mr. Ryser rubs T.'s shirt asking if it is felt.
She responds no and he says now it is. Witness,
S., Jan. 9, 1995.
This is just a sampling of comments and actions reported by
daughter. She has shared
other comments reported by girls in which she was not a witness. These comments and
are unwelcome and offensive.
The girls have reported their concerns to school officials. I
troubled by the districts
(sic) procedure for follow up on student initiated complaints. My daughter and two other
wrote up a summary of the incident in which Mr. Ryser gave them the finger. This
to Mr. Tocko and he interviewed them as well. They were not told of the discrimination
complaint procedure. No timelines were followed to respond to their concerns. When I
Mr. Tocko about this situation he felt no obligation to inform me and told me T.'s written
statement was turned over to an attorney. I have requested a copy of T.'s statement and an
explanation of why it was turned over to an attorney. I have received no reply.
Recently Mr. Tocko has individually spoken with players of
boys varsity basketball
team about comments supposedly made by their coach. He advised each of them of the
to file a written complaint. Female students went to him with specific examples of
behavior and they were not provided with policy explanations yet he sought out male students
file complaints. This discrepancy in treatment is unacceptable.
. . .
7. Elementary Principal and Title IX Coordinator
Semingson's interviews with M.R.'s students
in late February and early March, 1995, produced the following relevant information
in Semingson's March 16, 1995 report:
Gender Equity Comments by students
"Girls seem to get off easier in Ryser's class." "M.R. hollers
the guys a lot." "Girls
can get assignments in late." Girls get more preferential treatment (implied). "Mr. Ryser
doesn't give equal treatment." Incident: Both girls and boys had incompletes; both got
two weeks to make up two tests; two girls only had to make up one test, all the rest had
to take two tests. "Mr. Ryser is a real jerk to lots of the guys, especially [named two male
students]. He took a lot of group points away from [named one male student]." "Some
teachers favor guys, some favor girls." Who? "Mr. Ryser." "He helps girls but not
boys, it's getting a little better though." "I've never heard him yell at a girl yet." "If you
make trouble (implying a guy) in Mr. Ryser's class, you'll really get it." Mr. Ryser
favors girls, he helps them first, boys are left on their own." "He's really hard on guys.
Girls, he treats decent, except for the sex jokes."
Verbal Sexual Harassment
"Mr. Ryser said jokes [with sexual overtones] that aren't
appreciated." Mr. Ryser has a
reputation of saying things with sexual overtones. Mr. Ryser has a reputation of making
passes or advances toward students. Said a joke to a about a (sic) "Hooter" t-shirt (sexual
overtones) referring to a female student. M.R. said girls could wear short shorts upon
approval from him. "If I were younger, I would ask you out [to girl]". What were you
doing last night? [with sexual overtones]" "How many guys have you been with [sexual
overtones]." "Here, hold my testis"
while handing a girl a stack of tests. Girl said "that's gross".
"What's the matter, [to
boy], didn't you satisfy her [about girlfriend] last night?" Said a joke about "dog shit".
When student told M.R. she didn't like what was said because of the sexual overtones,
M.R. said "deal with it". "That's his famous phrase." [a]nother statement was "what are
you going to do, take me to court?" M.R. to girl: "You sure look sexy today." Stopped
class, says to class, we'll have to wait [girls name] has to go to the bathroom."
Physical Sexual Harassment
Mr. Ryser rubbed student's shirt on the shoulder and back
said "Is this felt?" Ans:
"No" M.R.: "Well it is now." Touched student and said "I'm just playing with you."
M.R. patted a student's stomach, "what have you been doing?" "M.R. leans really close,
sometimes touches you, makes you feel really uncomfortable." A female asked M.R. to
stop touching her, he still did. Rubbed shoulders of a girl, said "you look real tense
today" She "shrugged him off, he had to know I didn't like it. It (sic) did it a lot."
Have you attempted to get him to stop. Some have. They've
talked to him, to Mrs.
Solberg, to Mr. Tocko. "He's hard to beat, so why try?" He doesn't like some students.
He's really hard on them. Harasses them a lot. "We can't wear low cut shirts. He [Mr.
Ryser] stands behind you and looks down your shirt." "He's a pervert." M.R. said to
other student, "you don't remember me flipping [girls name] off, do you?"
8. Dr. Zavada's letter suspending M.R. for three days
read in relevant part as follows:
. . .
As you are aware, the Administration has recently conducted an
investigation of complaints
filed against you pursuant to the District's discrimination complaint procedure. The
contain several allegations of inappropriate statements and conduct by you in violation of the
District's sexual harassment policy. The Administration's investigation included interviews
several students, as well as a meeting with you and your representative on March 10, 1995.
Based on the Administration's investigation, I have concluded that
the allegations that you
have made sexually explicit statements, as well as statements with sexual overtones to
are substantiated. Of further concern is that, during our meeting on March 10, 1995, you
acknowledged that you are a "touchy person."
You were previously issued a letter of reprimand on December 1,
1994, in which you were
directed to "discontinue any and all acts which are sexually explicit or offensive to students."
That same letter advised you that the letter was the first step in the process which could lead
dismissal. The December 1 letter of reprimand followed other efforts by the Administration
work with you in correcting your conduct. In addition, the District's staff was provided an
extensive in-service program on sexual harassment during the fall of 1993-94 school year.
despite these previous efforts to work with you, you continue to engage in conduct in
of the District's sexual harassment policy. Therefore, this letter is to advise you that you
placed on a three day suspension without pay. The suspension will begin on March 24,
Your first day back at work will be Wednesday, March 29, 1995.
. . .
Mark, you are encouraged to use the time you are on suspension
to reconsider your actions
in this matter. The District will not tolerate any further inappropriate statements or conduct
you. If there are further incidents, you will be subject to further disciplinary action up to
including dismissal. The inappropriate statements and conduct must cease. If you engage in
conduct in the future, you will do so at your peril.
. . .
9. The Association offered into evidence written
recommendations for M.R. which were sought
by him after his non-renewal at the District. Three of these recommendations came from
at Eau Claire North High School where M.R. was a long-term substitute for approximately
weeks in the mathematics program there after his non-renewal by the District. It should be
that none of the writers of these three recommendations were aware of M.R.'s non-renewal.
addition, former principal Tocko wrote M.R. a recommendation after M.R.'s non-renewal
stated that M.R. had "a very professional attitude" and "a willingness to change" and that
would recommend M.R. "without any reservation" for future employment. Former District
Administrator Zavada also wrote a recommendation for M.R. after his non-renewal at the
However, Zavada made no mention of M.R.'s involvement with students and his ability in
area. Finally, an affidavit was received into the record from former District teacher
a recommendation from an employe of the CESA 10. The
representative from CESA 10 made no mention of M.R.'s student involvement and
former teacher Connolly indicated that he did not believe that M.R.'s history with the
would keep him from being a good teacher in the future.
10. Mrs. Sleep also stated that after her daughter
received a B- at the nine-week grading period,
her daughter was very upset as she did not believe her work was up to that level. At the end
the second nine-week period, Mrs. Sleep's daughter received a much lower grade (D+) and
Sleep and her daughter both stated that they felt her work had improved, not dropped off.
Mrs. Sleep stated that her daughter reported that M.R. refused to help her at all in
Mrs. Sleep talked to Dr. Hitchens. Finally, Mrs. Sleep stated that Dr. Hitchens did
not ask her
to write down her concerns regarding M.R.'s class or his treatment of her daughter.
11. I credit Dr. Hitchens' account of these discussions
over M.R.'s. M.R.'s demeanor on the
witness stand in this case as well as contradictory statements he made on December 19th in
meeting with the District demonstrated that M.R. is not a credible witness. Specifically,
"Winnie the Ship" statement in the December 19, 1996 meeting with Hitchens was a feeble
attempt to explain his conduct which in the context of the joke, made no sense, and only
to prove that he (M.R.) could not be trusted.
12. The parties' February 24, 1997 complaint read as
. . .
I am writing this letter as a follow-up to our phone
from January 13, 1997.
When we discussed my concerns about Mr. Ryser. I am having a problem with his style of
teaching. I just don't feel it is effective for youth to be allowed (or even at times
"goof around", talk and makes jokes, etc., when they're supposed to be working. I think it
be a wonderful concept to allow kids to have some freedom and be in a more relaxed
This is what, I believe, Mr. Ryser is attempting to accomplish. But what seems to be
is the kids get out of control and Mr. Ryser loses control and tries to bring them back and in
process gets frustrated and in the heat of frustration kicks the kid out or does some other
punishment. I have talked with numerous students and parents who agree that this is very
confusing for these kids and although some can probably handle it OK too many are getting
due to this inconsistent process. I am all for kids having fun while they learn and I certainly
condone rude or obnoxious behavior, but I think we have to look at the whole picture here.
it really not (sic) all of these kids' fault. Forgive me, Mr. Harper for always using you as
example. But I knew I personally had Mr. Ryser and Mr. Harper when I was in school and
look at their "track records" you'd see that Mr. Harper rarely has behavior problems with
as compared with Mr. Ryser. The difference here is that
Mr. Harper, too, enjoys having fun in class but he is very
consistent about his rules and the
kids know it. I think its (sic) so important for these kids to learn these subjects, let's get our
together so we don't have to waste a bunch of everyones (sic) time taking disciplinary action
wouldn't even be necessary if certain teachers, not even just Mr. Ryser, would understand
importance of consistancy (sic) and other factors that affect childhood behaviors, especially
Come on, I'm just an average person. These teachers
supposedly have Bachelor's degrees
and ongoing conferences, trainings and workshops. I would think they should be able to
out appropriate methods to use with the age group of children that they are dealing with.
I have 3 more children that will be going through this school
system after Jason and I will
not tolerate ignorance to methods of dealing with children from anyone who comes in contact
my kids. It is my right and their right to have competent people working with them. If not,
definitely will not let it slide. I will take any action I can to change the situation. Thank
your time in reading this.
. . .
13. In his testimony, Mr. Tocko denied being a social
friend of M.R. I find this difficult to
believe, given the glowing recommendation Tocko gave M.R. after the latter's non-renewal.
14. Contrary to the Association's argument, I do not
believe that this case requires the application
of the "beyond a reasonable doubt" standard. Given the substance of the allegations made
M.R. and the lack of any pending criminal action against him, I believe the lesser standard
clear and convincing evidence should be applied herein.
15. I note that in 1994 M.R. failed to deny making a
statement regarding performing math
problems from the front or the rear, as recounted in Principal Tocko's reprimand of
1994. In my view, these facts call into question M.R.'s denial that he made a strikingly
comment in 1996.
16. The Association argued that the District never found
that M.R. used profane language in his
classes. This argument is unpersuasive based upon Semingson's report and other record
17. The Association argued that the two jokes M.R.
told, although off-color, should not have
been sufficient basis upon which to non-renew M.R. I agree. However, it is abundantly
from Semingson's report that M.R. engaged in other significant verbal and physical sexual
harassment of female students which formed the basis (along with his jokes) for M.R.'s
18. Based upon H.S.' testimony herein, M.R.'s "smelled
good" comment could have been made
regarding H.S.' gum. However, I note that at the time M.R. made the comment to her,
believed the comment was inappropriate and personal and that H.S. did not recall that she
chewing gum in class when M.R. made the comment to her.
19. The parent complaint made orally on January 13,
1997, and received in writing on
February 24, 1997, showed that at least in some respects, M.R.'s conduct may not
despite M.R.'s knowledge of the District's on-going investigation regarding his conduct. In
addition, I find it reasonable that the District did not formally proceed regarding this