BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
KENOSHA SCHOOL DISTRICT
KENOSHA EDUCATION ASSOCIATION
Davis & Kuelthau, S.C., by Attorney Dan Vliet, Suite 1400,
111 East Kilbourn Avenue, Milwaukee, WI 53202-6613, on behalf of the School District.
Mr. Robert Baxter, Executive Director, Kenosha Education Association,
5610 55th Street, Kenosha, WI 53144-2295, on behalf of the Association.
According to the terms of the 1999-2001 collective bargaining agreement between the
Kenosha School Board (District) and Kenosha Education Association (Union or Association),
parties requested that the Wisconsin Employment Relations Commission designate a member
staff to hear and resolve a dispute between them regarding a three-day suspension given to
Angela Ruffolo. The Commission designated Sharon A. Gallagher to hear and resolve the
Hearing was scheduled for July 25, 2000, but was later postponed to August 23, 2000. The
was held at Kenosha, Wisconsin, on August 23, 2000. A stenographic transcript of
was made and received by the undersigned on September 11, 2000. The parties agreed to
initial briefs directly with each other postmarked October 6, 2000, with a copy to the
parties reserved the right to file reply briefs. By November 29th, the
parties advised that they would
waive the right to file reply briefs, whereupon the record was closed.
To maximize the ability of the parties we serve to utilize the Internet
software to research decisions and arbitration awards issued by the Commission and its staff,
footnote text is found in the body of this decision.
The parties stipulated that the following issues should be determined in this case:
Did the Employer have just cause to give the Grievant,
Ruffolo, a three-day
suspension? If not, what is the appropriate remedy?
RELEVANT PORTIONS OF THE BOARD'S
POLICIES AND RULES
CORPORAL PUNISHMENT/USE OF PHYSICAL FORCE
Students will not be subjected to the use of
corporal punishment in any of its forms. District
employees who violate this policy shall be subject to established disciplinary procedures.
Although school officials, employees, or
agents are encouraged to use non-forceful control
measures, school officials are not prohibited by the corporal punishment law from using
and necessary force under the following specific circumstances:
To quell a disturbance or
prevent an act that threatens physical injury to any person;
To obtain possession of a
weapon or other dangerous object within a student's control;
For the purpose of
self-defense or the defense of others, or for the protection of property in
accordance with state statutes;
To remove a disruptive
student from school premises, a motor vehicle, or a school-sponsored
To prevent a student from
inflicting harm on him/herself; and,
To protect the safety of
Incidental, minor, or reasonable physical
contact designed to maintain order and control may be
used in the District.
In determining whether or not a person is using reasonable and
necessary force, deference shall
be given to reasonable, good faith judgments made by an official, employee or agent of the
. . .
Employees shall abide by District policies
and procedures, applicable rules and regulations, local,
state and federal laws and regulations, and the expectations set forth in employee position
It is the responsibility of the District's
administrators and supervisors to discipline employees for
violations of District policies and procedures, applicable rules and regulations and the
set forth in the position specifications.
Discipline will not be imposed arbitrarily or
capriciously. Discipline may be imposed by oral
reprimand, written reprimand, suspension with or without pay and/or discharge. Dismissal
personnel shall be in accordance with established procedures and state law. Other forms of
may be imposed when appropriate. The concept of progressive discipline will be utilized, if
Employees who have been disciplined have
access to either the general employee complaint
procedure in the policy manual or grievance procedures specified in employee bargaining
. . .
EMPLOYEE DISCIPLINE PROCEDURES
Copies of a written employee reprimand
will be distributed as follows: original to employee,
copy to Superintendent of Schools, copy to employee's Central Office personnel file and a
employee's immediate supervisor.
Disciplinary measures, when warranted,
may be implemented as follows:
All administrators and supervisors
are authorized to reprimand in either oral or written form, or both.
All administrators are authorized to recommend
employee suspensions to the Superintendent or
Only the Superintendent or designee is authorized to
suspend an employee with or without pay.
The Superintendent may impose all appropriate forms of
discipline, except for discharge, of regularly
employed certified employees. The Superintendent may discharge non-certified employees
and substitute teachers [sic]
Discharge of regularly employed certified employees
requires formal action by the School Board and
shall be in accordance with established procedures and state law.
Angela Ruffolo, the Grievant in this case, have been employed by the Kenosha
for 30 years. During the 1998-99 school year, Ruffolo was employed as a third-grade
teacher at Forest Park Elementary School in Kenosha, Wisconsin. Although the Union
argued to the
contrary, the following constitutes Ruffolo's disciplinary record from 1995 through 1997.
District, during this period of time, issued Ruffolo three written warnings and one one-day
suspension. Ruffolo did not grieve any of these actions by the District. The relevant
portions of each
disciplinary action are as follows:
November 28, 1995, one-day suspension from acting Superintendent
I have recently been informed of serious communication problems
between you and parents of
some of your students at Forest Park Elementary School. Several students in your classroom
received failing grades in reading and other subjects for the first quarter; however, parents
informed of their child's problems through a mid-term progress report or other
During a meeting with Mr. Guttormsen and
Ms. Neilson Euting, you were directed to contact
parents of students who were failing prior to the parent-teacher conference so that they would
aware of the failing grade, and to inform them that the District would be providing resources
their child. You then left a cryptic message on one parent's tape stating that you had been
to inform them of their child's failing grade. You also indicated in your log that you failed
some parents due to unlisted telephone numbers. Certainly, as a professional you should be
of alternative means
of notifying parents such as sending a note home with the child
asking the parent to contact you,
sending a registered letter, asking the contact on the emergency card to notify the parent to
Additionally, when students were scheduled
for remedial help with the reading teacher and
educational assistant, you stated you would not release your students to receive this
Refusing to allow your students to receive additional help as directed by the principal
insubordination. Additionally, this action violates School Board Policy #5116 which states
"Teachers shall make every effort to
devote sufficient time and resources to assist every
student to achieve success commensurate with the student's ability."
Angie, parents are rightfully upset regarding their perception of
your uncaring attitude toward
their children. Moreover, I can certainly understand why a parent might think you were
her particular child's needs when the comment on the report card referred to a child by a
name. It is not surprising that numerous parents are requesting that their children be
your classroom. I believe teachers can be empathetic and sensitive to student needs while
high expectations for achievement, and that is my expectation for you.
Due to your unprofessional behavior in
communicating with parents and your insubordination
to your principal as evidenced by your statement that you would not release your students for
remedial help, I am suspending you from all professional duties, without pay, on Thursday,
30, 1995. You will return to work on Friday, December 1, 1995. I am also referring you
Employee Assistance Program, and will check with Mark Hyde, EAP Manager, to verify
It is my hope that this discipline will
conclude the matter; however, continued failure to
demonstrate the professional behavior expected of you by the Kenosha Unified School
result in further disciplinary action up to and including possible termination.
. . .
October 17, 1996, written documentation of the October
11, 1996, oral warning from Principal
This memo is a follow-up to the conference
held on Friday, October 11, 1996 at which time Mr.
Gary Powell, you and I met to discuss an allegation you made toward Mr. Powell.
Mr. Powell indicated in the meeting that you came into the
library, took some decorations off his
bulletin board, and investigated them without his permission. He questioned you regarding
and you refused to discuss the situation with him. According to Mr. Powell he once again
to discuss this matter with you the following morning and you then told him that you didn't
discuss this with him and that it wasn't worth discussing because he could lose his job. Mr.
felt threatened by the comments you made and definitely believed you were accusing him of
your bulletin board decorations as evidenced by the fact that you came into the library and
removing the decorations without any communication, written or verbal, to him.
In the conference you stated you didn't
believe that you did anything inappropriate. You stated
you were merely checking the decorations out to see if they were two sided because that's
were. You indicated in the conference you had never seen these decorations in the library in
three or four years so you assumed they could be yours. You also made a statement about
Powell's abilities as a librarian and said that if you were his immediate supervisor, you
would fire him
because in your judgment you didn't feel he did an adequate or professional job. For the
have no right to examine the property of another staff member without approval, nor is it
responsibility to evaluate co-workers.
In the same conference we discussed an
alternative manner in which you might have resolved this
issue. I suggested that it would have been more professional to have gone to Mr. Powell
students or staff were present to discuss your concerns, and tried to resolve the matter
two of you.
It is essential for staff members to work
together and to communicate concerns in a positive,
constructive and professional manner. To date, I'm aware of two other situations in which
other staff members had confrontational exchanges resulting in negative relationships. I am
aware that acting superintendent, Mr. Joseph Magi, referred you to the Employee Assistance
in a letter dated November 28, 1995. In checking with Mrs. Linda Neilson-Euting,
Human Resources, I learned that you did not comply with this direction. To assist you in
your relationships with co-workers, I'm directing you to contact the Employee Assistance
This contact should be made by October 25, 1996. The District will contact the EAP
verify your compliance with this direction.
As the newly appointed principal of Forest
Park, I'm trying to establish good staff morale and
a positive working environment. I'm sure you can understand that positive working
certainly contribute to our success and the success of our students.
Please understand that I am willing to sit down with you and any
other staff member to discuss
concerns that you may have relative to other staff members. I will always assist whenever I
resolving any staff relationships. Again, please feel free to contact me at your convenience
have any problems or concerns relative to this issue or any other matters. 1/
1/ In my view, this memo constitutes written
documentation of an oral warning. No progressive discipline
statement is made for future actions of a similar type.
December 18, 1996, written warning from
. . .
I recently learned of inappropriate behavior demonstrated by you
toward another staff member
at Forest Park Elementary School. Specifically, you embarrassed and humiliated the
manager in the presence of students by yelling at her regarding a number of issues, and
telling her that
she was only there to fix the computers. Additionally, after a meeting with your principal
which you were given specific direction regarding the appropriate manner in which concerns
be addressed, you went to the staff lounge and, once again, verbally abused the staff member
Due to your continuing problems with
interpersonal relationships with your coworkers, I believe
suspension without pay is warranted, and have seriously considered such action; however, I
decided to allow you to remain at work so that you will have every opportunity to improve
relationships with colleagues. I am also directing you to contact the Employee Assistance
immediately for an appointment. It is further expected that you will follow through with
recommendations for assistance.
Finally, you must know that should a
similar incident occur in the future, I will impose
disciplinary action up to and including recommendation for termination of your employment
Kenosha Unified School District.
2/ On December 16, 1996, Principal Soulek
recommended that Superintendent Johnson discipline Ruffolo
for her confrontation with the computer lab manager and also noted Ruffolo's
non-compliance with a previous
directive from the District that she seek help from the Employee Assistance
. . .
November 17, 1997, written warning from Principal
. . .
At the beginning of this school year I
shared with you many written requests from parents which
stated they didn't want their child [sic] in your classroom this year. The reason for the
varied. Many said they didn't believe your attitude towards kids was positive, and that they
believe their children would be successful in your room. After sharing the written requests
I also shared several similar verbal requests I had received from parents.
At the time I told you that it was imperative
to change the negative perception that students and
parents have regarding your attitude and the manner in which you deal with people. When
approximately one-third of the parents of our second grade students request not to have their
placed in your classroom, there is cause for concern. At the beginning of the year I
that your primary goal should address these perceptions. I also gave you specific suggestions
regarding ways to change this perception. At that time you said, "I don't care how parents
long as kids are learning and I am teaching the Board approved curriculum."
To date, we have had four conferences with
parents of students who are concerned about the
manner in which you work with their children. Following are some concerns which were
parents: 1.) You do not communicate with them until the problems escalate to a serious
Their children have not had significant disciplinary problems until this year. 3.) Your
measures are unfair and inappropriate. Additionally one parent insisted on having her
removed from your room because she was afraid of you, didn't want to attend school
said you made her feel stupid.
Finally, in the conference with Brandon
________'s 3/ mother on Thursday, November 6, 1997,
you gave the impression that this was your preparation time, that you shouldn't have to be
that the conference was a waste of your time. You certainly did not demonstrate care and
for her son. Actions such as these contribute to the negative perception parents have
attitude and the manner in which you interact with children and parents.
Angie, you must communicate with parents,
students and staff in a positive manner. This has
been pointed out to you by previous administrators as well as myself. If the type of
delineated continue, I will recommend disciplinary action to the superintendent.
Please know I am willing to discuss concerns and to assist you in
working cooperatively with
students, parents and staff. 4/
Brandon's last name has been shielded to protect his
4/ In a handwritten
responsive memo, Ruffolo stated:
The accusations are
untrue. I run an orderly and productive classroom. Children need to work hard.
Observations in the hall are useless. Parents who want to evaluate my work
need to come and sit, if they have
children enrolled in my class. PS. Perhaps my attorney can draft a letter to the
advised Ruffolo that such a letter from her attorney would not be appropriate. Ruffolo never
sent letters to any parents as a result of the approximately 26 parents who wrote letters
requesting that their
children not be placed in Ruffolo's class.
Each of these disciplinary actions was placed in Ruffolo's personnel file and Ruffolo
grieve any of these actions by the District.
On March 10, 1999, Ruffolo had 25 eight-year-old students in her class, one of
be known as David. 5/ On the morning of March 10th, a student came in
from the playground
bleeding (apparently from her head) with blood on her hands, face and clothes. Ruffolo
turned her attention to this student. Ruffolo took this student to the sink, wiped her face and
but she could not find a wound. Several of the children became agitated at this time, having
blood on the student. David began screaming words from the TV show "South Park," such
"blood, gore and kill Kenny." As the students were going to take the third-grade state
that morning, Ruffolo separated their desks and placed David at a desk very close to her
distance from the other students. David continued to be disruptive, but he then settled down
enough to take the third-grade reading test. However, after the third-grade reading test was
completed, David began yelling and screaming and laid down on the top of his desk kicking
and waiving his arms. Ruffolo stated that while David was being disruptive, she told him
times to sit down and quiet, but David did not do as he was told. When Ruffolo saw David
stomach on top of his desk kicking, screaming and waiving his arms, she took him by the
him down off his desk and swatted his bottom once and told him to sit down. Ruffolo stated
did not intend to punish David by swatting him on the bottom; that it was a "reactive kind of
But I was not out of control . . . I could have stopped myself had I chosen to at that point . .
. . I
don't believe in corporal punishment at all. And why that happened to me, I don't honestly
(Tr. 71) Ruffolo stated that after she swatted David on the bottom, David sat down
and was quiet,
but that he later became disruptive again. Ruffolo then sent David to the office to be
the Principal for being disruptive.
5/ David's last name will be shielded to
protect his identity.
When David came to Principal Soulek's office, David told the Principal he was sent
office because he had been disruptive. The Principal then decided that a meeting with
Soulek and David's mother later that day would be appropriate. Soulek called David's
arranged for her to come to school at approximately 1:40 p.m. on that day. During the
with David's mother, Ms. Ruffolo admitted that she had swatted David on the bottom in
David's mother became very upset, stated that she would leave, that she had had enough and
wanted David out of Ms. Ruffolo's class. At this point, David's mother left Ruffolo's
David and again stated that she wanted David out of Ruffolo's classroom. At this point,
came out of her classroom into the hallway and told David's mother she could take David
public school and put him in parochial school. At this point, Mr. Soulek told Ruffolo to
return to her
classroom and he accompanied David and his mother to the office where David's mother
request requesting that David be removed from Ruffolo's class.
Ruffolo stated that she believed that she complied with the District's policy regarding
punishment in swatting David on the bottom on March 10, 1999. 6/ Ruffolo stated that she
David because he was obnoxious and was yelling, disrupting her classroom. Ruffolo stated
swat appeared to stun David, that David accepted the swat, did not complain of any pain and
seemed to help him calm down. Ruffolo stated that she swatted David to stop his words, but
did not swat him to keep him from hurting himself or in order to defend herself. Ruffolo did
that during the District's investigation of the incident, she told District representatives that
it" and was completely frustrated when she swatted David on the bottom.
6/ Ruffolo also stated that there was a split
second when "I could have stopped. But I didn't; I swatted him.
It's just human . . . ." (Tr. 92)
It is undisputed that Board policies and rules are distributed to teaching staff by
personal mailboxes and school bulletins. These items are also kept for reference purposes at
office. Staff meetings are also regularly conducted regarding Board policies and rules.
admitted that she was aware of the Board policy regarding corporal punishment, applicable in
After conducting an investigation of Ruffolo's conduct and receiving a
Principal Soulek that discipline should be meted out against Ruffolo, Superintendent Johnson
the following suspension letter on March 18, 1999:
. . .
This letter is to inform you that you are
being issued a three-day suspension without pay. This
[sic] dates for this suspension are Monday, March 22nd through
Wednesday, March 24th. You are to
report back to work on Thursday, March 25th.
This disciplinary action is based on your
conduct in an incident on Wednesday, March 10, 1999.
On that day and by your own admission, you forcibly grabbed a child's arm in your
spanked the child. This unwelcome contact is in violation of Board Policy #5471, Corporal
Your conduct has the potential of severely
diminishing the public's confidence and respect for
the Kenosha Unified School District and the teachers employed by it. Your conduct
a lack of sound judgement in the discharge of your instructional duties.
It is hoped that this letter of reprimand will
allow you to reflect on your duties as a teacher in this
District and the importance of excising [sic] sound and careful judgment as you work with
students under your charge. You are warned that in the event of further disregard for your
a teacher, you will be subject to further discipline, up to and including discharge.
You are reminded that the District's
Employee Assistance Program (652-7000) is available to
assist you with any personal problems that you may have that may be impacting your ability
out your work duties. 7/
. . .
7/ Ruffolo did not deny the facts as recounted
in the District's letter of suspension to her.
The Union then filed the instant grievance on Ruffolo's behalf which was processed
the grievance procedure to arbitration. The Union submitted evidence herein regarding
occurred since the filing of the grievance. Although the Arbitrator took this evidence as an
proof, the proffered evidence is irrelevant to this case, as it relates to events and
were neither a part of the factual scenario leading up to this grievance nor were considered
District in its decision to suspend Ruffolo for three days for her activities on March 10,
Therefore, this evidence has not been considered in this case.
POSITIONS OF THE PARTIES
The District argued that its actions in suspending Ruffolo were entirely reasonable
supportable. In this regard, the District noted that Ruffolo not only had notice that her
would be disciplined, but that she was aware of the reasonable rules of the District and its
The District urged that it had conducted a fair investigation of the March
10th incident. In addition,
the District argued that it had offered substantial proof of Ruffolo's wrong-doing, including
admissions; that there was no indication that the District had failed to treat Ruffolo fairly and
and that a three-day suspension was a reasonable penalty considering the activity that Ruffolo
engaged in. The District noted that since at least 1995, Ruffolo had been given notice that
abusive relationships with students and staff would result in further discipline (when she was
suspended for failure to notify parents that that their children had failing grades). Ruffolo
warned regarding her refusal to release her students for remedial reading help in direct
the Principal's orders. Ruffolo was also warned in writing regarding her reference to a
the wrong name on a report card. In addition, in 1996, Ruffolo was involved in abusive
according to the District, in which she criticized the computer aide in the library and accused
library aide of removing her posters from her classroom. For both of these instances,
received a written warning. Also during the 1996-97 school year, 26 parents indicated that
not want Ruffolo to teach their second-grade children and the Principal verbally warned
regarding her relationships with parents and students as a result. During the 1998-99 school
the Principal stated herein that more parents requested their children be removed from
classroom and complained about her teaching; and that Ruffolo sent students to the office
frequently than other teachers in the building.
In these circumstances, the District argued that it was entirely justified in issuing
three-day suspension for the March 10, 1999 incident, in which Ruffolo admittedly grabbed a
by the arm and spanked him on the bottom during class. In this regard, the District noted
force used by Ruffolo was not incidental, minor or reasonable. Rather, the force Ruffolo
excessive and unnecessary to remove the child from the top of his desk and to get him to
Indeed, the Grievant failed to prove that there was anything reasonable or necessary about
on March 10th. During the investigation of her actions, Ruffolo admitted
that she had swatted David
on the bottom in order to maintain control of the class and that she had "lost it." The
therefore urged that Ruffolo violated the Board's corporal punishment policy and State
she punished David on March 10th.
The District noted that Article XII of the contract, states that the District can
teachers who willfully and repeatedly violate District policy. The District argued that
record demonstrated that she willfully and repeated violated District policies regarding the
relationship of teachers to staff and students. The District further urged that Ruffolo
David's safety and the safety of the other children in the room by her actions on March
Even without consideration of Ruffolo's prior misconduct, the District contended that
spanking a child should be cause for a three-day suspension. The District noted that Ruffolo
other options available to her. These included using the intercom to call for assistance or
David to the office sooner. In any event, the District urged that the undersigned should give
deference to the District's decision to discipline Ruffolo at the level of a three-day
Ruffolo failed to credibly demonstrate that her actions were justified and not excessive or that
made a reasonable decision as to the extent of the threat that David posed, the District urged
Ruffolo's three-day suspension should stand and that the grievance be denied and dismissed
The Union argued that the District did not have just cause to give Ruffolo a three-day
suspension. In this regard, the Union noted that Ruffolo did not intend to punish David
spanked him on March 10th; that she was not angry with her students at the
time she spanked David;
and that she hit David because she was concerned about herself and getting David off his
without his being harmed. Therefore, Ruffolo complied with the District's corporal
policy, which states that teachers can use corporal punishment "to quell a disturbance" or
an act that threatens physical injury to any person."
The Union argued that Ruffolo acted appropriately on March 10th.
In this regard, the Union
noted that Ruffolo had tried to correct David's behavior with verbal directives and that these
directives failed. Ruffolo ended up spanking David to get his attention and control his
this resulted in the immediate quelling of the disturbance that David was making.
The Union asserted that the Districts' arguments regarding Ruffolo's prior work
irrelevant to this case. In this regard, the Union urged that the letter of discipline refers only
March 10th incident as grounds for the three-day suspension at issue herein.
Thus, the District's
attempt to use prior disciplinary actions against Ruffolo should not be allowed. Indeed, the
noted that none of the prior disciplinary actions against Ruffolo involved corporal
Furthermore, some of the "disciplinary actions" (Exhibits 4 - 7) were not
disciplinary in nature,
according to the Union. As the District failed to call any supporting witnesses with direct
testimony regarding any of these prior disciplinary actions, the Union urged the Arbitrator to
conclude that use of these prior disciplinary actions would violate Ruffolo's due process
addition, the Union noted that the first time the Board raised Ruffolo's prior disciplinary
at the Board hearing in this case, implying that this approach was unfair.
As the District failed to meet its burden of proof to show that it had just cause to
Ruffolo for three days and as it failed to prove that Ruffolo actually violated its corporal
policy, the Union requested that the grievance be sustained, that Ruffolo be made whole and
employment record be expunged.
The initial question in this case is whether Ruffolo violated the District's Corporal
Policy on March 10, 1999. In the Arbitrator's view, the record supports a conclusion that
violated this policy on March 10th. The Union argued that Paragraph 1 of
the Policy was applicable
to the March 10th situation and that Ruffolo followed the policy on this
point. In this regard, the
Union urged that Ruffolo spanked David in order to "quell a disturbance or prevent an act
threatened physical injury to any person." However, by her own admissions both during the
investigation of the incident as well as during her testimony herein, Ruffolo's primary
taking hold of David, pulling him off his desk and spanking him on March
10th was not to quell a
disturbance or prevent injury to anyone. Indeed, Ruffolo never directed David to get off his
sit down before she spanked him. Rather, as she stated, she "lost it," meaning that she was
that she took hold of David and struck him. Ruffolo further admitted that she could have
herself before she hit David but that she did not know why she failed to stop. Thus,
as well as her statements herein demonstrate that Ruffolo lost her temper, that she intended
David and that she did in fact punish him by spanking in front of the entire class on March
The record contains no evidence to support a conclusion that Ruffolo spanked David
David's injuring Ruffolo or others. Rather, the evidence showed that before the State
began, Ruffolo moved David's desk away from the desks of the other students. Therefore, it
very unlikely that David could have injured any students by his actions on March
10th. As Ruffolo
chose to approach David to remove him from his desk and to spank him, Ruffolo could not
that she was then in any danger of being injured by David. 8/
8/ I note that Ruffolo stated herein that she
had injured her back at work previously and that she was
thereafter careful not to put herself in physical jeopardy.
The Union also argued that Ruffolo spanked David to get his attention and to control
his behavior. In the
Arbitrator's view, it was unnecessary to spank David to achieve these goals: Ruffolo could
have ordered David to sit
down, she could have called the office on the intercom for assistance or she could have sent
David to the office
immediately. If teachers regularly used corporal punishment whenever then needed to get
their students' attention or
to control their behavior, schools would become violent places where fear and embarrassment
would make learning
Further analysis of the District's Corporal Punishment Policy indicates that
Paragraphs 2 through 6 do not
apply to the March 10th incident. Paragraph 3 of the policy does not apply
as David was not physically assaulting
anyone by his conduct and self-defense or defense of others never came into play. From her
testimony, as analyzed
above, it is clear that Ruffolo was not truly concerned about David injuring himself or other
students on March 10th
Ruffolo spanked him. Therefore, the record does not otherwise support a conclusion
that Ruffolo's March 10th conduct
was privileged under Paragraph 1, 5 or 6 of the District's policy.
The Union argued that because the District's March 18th letter of
suspension mentions only the March 10th
incident as a basis for Ruffolo's suspension, it would be unfair for the District to raise
Ruffolo's prior disciplinary
record (which did not involve corporal punishment) as a basis for sustaining the discipline in
this case. I agree with
the Union on this point. The discipline which Ruffolo received from 1995 through 1998 was
too dissimilar to the
discipline in dispute in this case to be applicable herein for purposes of determination of
whether the discipline was
progressive or (as the District has argued) that a pattern of conduct on Ruffolo's part existed.
However, the conduct that Ruffolo engaged in on March 10th was
serious and of a type that would privilege
the District to apply a more severe penalty than progressive discipline would normally allow.
It cannot be ignored that
Ruffolo took an eight-year-old child by the arm, removed him from his desk and struck him
on his bottom, demeaning
him in the presence of all his peers. It is neither arbitrary nor unreasonable for the District
to conclude that Ruffolo's
actions constituted a serious offense requiring a three-day suspension for this first offense. I
note that the District
followed its employee policy (quoted herein) in giving Ruffolo a three-day suspension in this
case, there being no
absolute requirement that discipline be progressive in the District under this policy.
Based upon the relevant evidence and arguments herein, I issued the following
The District had just cause to give Grievant Angela Ruffolo a three-day suspension
actions on March 10, 1999. The grievance is, therefore, denied and dismissed in its entirety.
Dated at Oshkosh, Wisconsin, this 20th day of December, 2000.
Sharon A. Gallagher, Arbitrator