BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
KENOSHA EDUCATION ASSOCIATION
KENOSHA SCHOOL DISTRICT
(Victor Mitmoen Grievance)
Ms. Teresa M. Elguézabal, Legal Counsel, and
Mary E. Pitassi, Legal Counsel, Wisconsin Education Association Council, and
Mr. Robert Baxter, Executive Director, Kenosha Education
Association, on behalf of the Association.
Davis & Kuelthau, S.C., Attorneys at Law, by Mr. Clifford B.
behalf of the District.
The above-captioned parties, herein "Association" and "District", are signatories to a
collective bargaining agreement providing for final and binding arbitration. Pursuant thereto,
was held in Kenosha, Wisconsin, on August 9, 2001, at which time the parties agreed I
my jurisdiction if the grievance is sustained. The hearing was transcribed and the parties
provided written submissions that were received by January 22, 2002.
Based upon the entire record and arguments of the parties, I issue the following
Did the District have just cause to suspend grievant Victor
Mitmoen for nine months pursuant
to Article XIV, Section H, of the contract and, if not, what is the appropriate remedy?
Mitmoen, a technology education teacher, has been employed by the District since
during which time he was never disciplined.
On March 23, 2000 (unless otherwise stated, all dates herein refer to 2000), Mitmoen
the Lincoln Middle School computer lab with students M.T. and M.N. who were in the sixth
(In order to protect their identities, I have used initials in referring to these two students).
was waiting for M.N. to finish certain school work when M.T., who was waiting for M.N.
so they could walk home together, threw a marble under a podium. M.T. then went under
podium to retrieve it. Mitmoen told him to get out from under the podium, but M.T. did not
immediately do so. Mitmoen, who stands 6 feet, 4 inches tall and who weighs about 210
then went over to M.T., who is about 4 and a half feet tall and who weighed about 80
grabbed him by the arm, which ultimately caused him to fall and hit a door that was several
After hitting the door, M.T. swore at Mitmoen and walked away with M.N.
M.T. then related what happened to then-Principal Geraldine S. Cibrario and M.N.
what had happened to Vice-Principal Peg Modory. M.T. at that time had a big bruise on his
which was photographed.
Mitmoen shortly thereafter on March 23 related what happened to Cibrario (who no
works for the District and who did not testify), and Modory. Modory testified that Cibrario
notes of their March 23 meeting (Joint Exhibit 8) and that they are accurate. Those notes
pertinent part that Mitmoen then told them:
. . .
[M.N.] and Mr. Mitmoen were in the
computer lab part of the technology room discussing
a shed that [M.N.] wants to build at home. [M.T.] came into the room and
Mr. Mitmoen heard a
marble crash into the wall, hitting the heater. Mr. Mitmoen didn't see who threw the
Mr. Mitmoen turned around to look and
saw [M.T.] in the podium digging out projects.
A styrofoam football fell on floor. Mr. Mitmoen said he stood up and reached down and
[M.T.] by the arm, pulled him out of the cabinet and launched him.
Mrs. Modory asked him exactly what he
said. Mr. Mitmoen responded that he pulled him out
of the podium and the next thing he knew he was on the floor. He restated again that he
[M.T.] out and did not know how he got on the floor. [M.T.] yelled at Mr. Mitmoen
and then went
into the hallway to follow him to see that he left area. Mr. Mitmoen said he called
repeatedly and that he was going to call the police as he left the room.
Mr. Mitmoen again stated he grabbed him and pulled him by
one arm out of cabinet and
doesn't know whether he tripped or fell to the floor. He comes into my room several times
and he get into things. He was digging around in the students projects which he had to
stated at that time, "I guess, I just lost it for a minute." and just yanked him out of the
. . .
Modory testified as follows as to what Mitmoen told them on March 23:
Q What did he say?
A He told me that he had been
helping M.N. plan a project, that he had problems with M.T.
coming down to his classroom after school several times before. He said that M.T. first
a marble into the classroom and then he saw M.T. rummaging in his podium touching
students' projects, so he was talking like that. M.T. came into my classroom. I was
with M.N. I told M.T. that he needed to leave the room and M.T. said just a minute. I got
up then I got up, I took M.T. by the arm and I am absolutely 100 percent
certain of this
and then I launched him and I was certain of that because in my mind investigating
immediately this situation became quite serious and I said to Mr. Mitmoen I
and I said what did you say? He repeated then I launched him. Ms. Cibrario then said what
do you mean by launched? And he said something like he said I yanked him by the
then he said I didn't know that he would be so light. I guess I I guess I must have
for a minute.
Modory also denied that Mitmoen used the word "launched" as part of any question.
After being asked to investigate the matter, the Kenosha Police Department on
March 27 sent
Police Officer Morrow and Detective Fredericksen speak to to M.T., M.N. and Mitmoen.
criminal charges were ever filed over this incident).
Fredericksen that day prepared a report of their investigation (Joint Exhibit 18) which
included M.T.'s following statement:
On 3/23/00, at about 4PM I went into Mr. Mitmoen's class at
school. The class is the tech lab.
I threw a marble at my friend M.N. who was in the classroom because he threw a marble at
I went over by the podium and I was looking at the projects that the kids made that were on
bottom of the podium. Mr. Mitmoen got mad. He told me to "get out now." I said "one
Mr. Mitmoen grabbed me by my left arm and threw me into the door. I flew through the air
feet were off the ground. My back hit the doors and the doors flew open when I hit them. I
back and shoulder blades when this happened. I got a scrape and a red mark to my left arm.
Mr. Mitmoen out. He said that he was sorry and that he didn't know that I was that light. I
to the office and I told the principal Mrs. Cebrario and the Asst. principal about what
They looked at my arm and took pictures and they said they would follow procedure. The
were called and a police officer came. I didn't go to school the next day because I was so
over especially my back and neck because of what happened.
M.N.'s statement to Detective Fredericksen provided:
On 3-23-00 at about 4 PM, I was in Mr. Mitmoen's classroom at
school. I had stayed after
school to talk to him and I was the only one in the classroom besides Mr. Mitmoen. M.T.
the room and I was rolling a marble around on the floor. The marble hit M.T. on the foot
picked up the marble and threw it against the floor. M.T. then went over to Mr. Mitmoen's
and he started going through it. Mr. Mitmoen told M.T. he get out of there and said, "What
doing in there, I'm sick of you going through my things and not listening." M.T. said "Just
Mr. Mitmoen said he was sick and tired of it and he grabbed M.T. by the arm and threw
the room. M.T. actually flew in the air. His feet were off the ground and M.T. flew into
when then flew open when he hit it. It looked like M.T. hit the door hard. M.T. then
swearing at Mr. Mitmoen and told him he was going to call the police. Mr. Mitmoen
to M.T. like, "I'm sorry, I didn't know you were that light." M.T. went to the office to tell
principal and I followed him.
Mitmoen's statement to Detective Fredericksen provided:
On 3-23-00 after school around 4 PM, I was sitting at a computer
in the classroom. M.N. was
there because we were talking about building a shed. M.T. called to M.N. from the hallway
are you in there?" I didn't turn around. I continued working at the computer. M.T. and
arguing about a marble and who threw it at who. Then I heard commotion in my podium
and I saw
M.T. looking at different student's projects in the podium. I stood up, took M.T. by the
arm and said
"Get out of there." I pulled M.T. out of the podium and I yanked him out and the next thing
M.T. was crashing against the door. I had no intention of launching him into the door. I
did tell him
that I was sorry and that I didn't realize he was that light. M.T. called me a bitch
repeatedly, and he
left. I asked him if he was sick and he showed me his arm. I saw a red mark on his arm.
Immediately below that statement was the following notation which Mitmoen signed:
I have made the above statement without any threats or
promises. It is my desire to state the
true facts as to this incident. I have read the above statement and find it is true and correct.
Witness: Cindy Fredericksen
Signed: Victor L. Mitmoen /s/
Date: March 27, 2000
If your statement is not returned to our
department at 1000 55th Street, Kenosha, Wisconsin 53140, in
person or by mail within 5 days from the time of the complaint, your complaint will be
Mitmoen on March 28, March 30, April 6 and April 14
subsequently met with various District
administrators regarding the March 23 incident.
Superintendent Michael L. Johnson suspended Mitmoen with pay on March 27. He
about the investigation he conducted into the March 23 incident and he informed Mitmoen by
dated May 12 that he was recommending to the School Board that Mitmoen be terminated
Mitmoen by letter dated May 19 rebutted the charges contained in Johnson's May 12
(Joint Exhibit 15).
Johnson testified that he recommended Mitmoen's discharge because:
"I have been a superintendent of schools
starting my I am starting my 16th year. During that
time, I have never come across a case this serious where a teacher is throwing a student
room. I was concerned gravely concerned about the issues around this case. I know
from time to
time, teachers are required in some cases to break up fights so they have to use a reasonable
of force to break up fights. I know to restrain a student from either hurting the teacher
or to restrain a student from other actions that might be a problem with safety and health,
the individuals around them, all of those are reasonable actions. I know that historically over
the 28-year career, we at one time used to restrain students more and for specific reasonable
I have never been in a case where the facts have been presented before me of this nature and
the termination was a justifiable remedy to the issues in this case."
The District's Board on August 28 voted 3-3 as to whether
Mitmoen should be fired.
Because of that tie vote (which was predicated on certain legal advice), the District did not
Johnson by letter dated October 2 informed Mitmoen he was being suspended without
for the rest of the 2000-2001 school year and that he would be reinstated for the 2001-2002
year, provided that he undertake counseling. (Joint Exhibit 24). As for why he suspended
for nine months of the 2000-2001 school year, Johnson stated:
Q I want to direct your attention to the third
paragraph of your letter. It refers to your grave
concerns about his misconduct and later on, you go on to say you are deeply concerned about
his blatant lack of remorse at the termination hearing of August 28 and his inability or
unwillingness to take responsibility for his actions. Do you see that?
Q What grave concerns did
you have about his misconduct?
A Again, this kind of situation
I have never come across before in my career. Having treated
this student in this case, I think it would have caused greater injury. Those were all my
concerns and fears. In addition to that, during both the grievance hearing and other contact
I had with Mr. Mitmoen, I didn't think that he demonstrated any remorse or indicated he'd
never do it again. The strongest comment he ever made was during the termination hearing
and that he was sorry that the
other students didn't have a qualified
teacher before them. I didn't hear very much other than
that as it relates to apologies or concerns about his own behavior.
Q Now during the termination
hearing, did Mr. Mitmoen read Exhibit 15 which is his May 19,
2000 response to the charges leading up to termination supporting termination?
A I recall everybody providing
Mr. Mitmoen with an opportunity to read a lengthy letter
responding to each of the items and charges.
Q Did his statements contained
in this Exhibit 15 in any way have any effect on you with regard
to your conclusion that he showed a blatant lack of remorse?
A I would say that the context
and the manner in which that presented caused me that concern,
Mitmoen testified that he told M.T. to get out from under the
podium; that M.T. replied,
"Wait a minute"; that he then walked over to M.T. "and pulled him out of the cabinet with
hand" and "let go of him"; and that M.T. then "fell forward into the door." He said that he
resistance at all" from M.T. when he did so; that he tried to assist M.T. after he hit the
floor; and that
M.T. at that time showed no injuries. As for his subsequent meeting that day with Cebrario
Modory, he claimed that he there stated, "So I launched him?", and "That is how I meant it,
Mitmoen grieved his suspension (Exhibit 25), which was unanimously denied by the
POSITIONS OF THE PARTIES
The Association claims that the District lacked just cause to suspend Mitmoen for
because his suspension "at the very least, should be greatly reduced because it is excessive
nature of the offense", "given the discipline it issued in two factually similar cases", "given
disparity between what the District said it was disciplining Mitmoen for, and what actually
and "given Mitmoen's 26-year record of service to the District, and the absence of
Association also asserts that the nine-month suspension "was actually a
de facto termination" and that
it did not allow Mitmoen to take full advantage of the educational nature of the suspension.
remedy, it asks that Mitmoen be made whole by paying to him all the wages and benefits he
because of his unpaid suspension.
The District contends that it had just cause to suspend Mitmoen because he admitted
that he "launched" M.T., thereby causing M.T. to suffer bodily injury when he hit the door,
its suspension was "neither arbitrary nor capricious" and that it thus must be sustained. The
also asserts that Mitmoen's suspension is justified because the initial statements given by
M.N. and M.T. "are consistent and damning with regards to Mitmoen's conduct"; that the
of other witnesses are consistent and hence should be credited over Mitmoen's testimony;
imposed lesser discipline in prior incidents involving corporal punishment because the
there was not as serious as the misconduct here; and that there are no mitigating factors here
warranting a lesser discipline. The District also asserts that its suspension was "not a
termination"; that the District's Board in any event approved the suspension when it
denied Mitmoen's grievance; and that it properly ordered Mitmoen to obtain counseling.
Much of this case centers on whether Mitmoen in fact "launched" M.T. on March
the District claiming, and Mitmoen denying, that he did so. This is a crucial factual issue
helps establish just how much physical force Mitmoen exerted against M.T. at that time.
M.T. and M.N. did not testify in this proceeding. Hence, their written and oral
statements to others, standing alone, do not establish whether Mitmoen "launched" M.T.
their statements can be used to corroborate Mitmoen's own March 27 admission to the
Police that: "I had no intention of launching him into the door." (Joint Exhibit
added). M.T. that day also told the police, "I flew through the air and my feet were off the
and M.N. told police, "M.T. actually flew in the air."
These three statements are consistent with then-Principal Cibrario's note that
March 23 told her and Modory that he "pulled [M.T.] out of the cabinet and launched
Exhibit 8). In addition, I credit Modory's testimony that Mitmoen on March 23 admitted
The Association asserts that other parts of the record contradict all this and that
not actually throw M.T. into the air. I disagree. Modory's credited testimony and
admissions to Cibrario, Modory, and the Kenosha police all establish that he "launched"
The Association also claims that Mitmoen "used the word 'launched' giving little or
indication of what he meant by it" because he is "not an English teacher" and because he
"to ask it as a question." I disagree. One does not need a Ph.D. in English composition to
understand that the word "launched" means that something has left the ground
as it flies through the air, which is exactly what happened to M.T. Moreover, I
claim that he used the word "launched" as part of a question in his March 23 meeting with
and Modory, as I credit Modory's testimony that Mitmoen categorically used that word
asking a question.
Mitmoen's own cross-examination establishes another reason to discredit his claims,
admitted there was not even any reason to touch M.T. because he was already getting up
underneath the podium. That being so, the District correctly points out: "There is NO force
Mitmoen was required to use under the circumstances, and there was NO force which
permitted to use under the circumstances." Mitmoen also claimed that he was "confused"
"flustered" when he spoke to Cibrario and that, "I would consider myself puzzled as to how
situation happened", which is hardly credible. He also admitted that his statement to police,
he read before he signed it, differed from his testimony here because, "That is
the way they have
written it down, but that is how it happened", which again is hardly credible given
signature at the bottom of his statement. He further claimed that he did not actually see
"crashing against the door" and that "I didn't know whether he hit the door or not", even
own signed statement states otherwise. He further claimed that he was in a "brainstorming
when he met with administrators, and that is why he asked them whether
they believed M.T. was
"launched". Modory's credited testimony establishes otherwise. He also vacillated over
grabbed M.T.'s right arm or left arm and replied, "I don't know" when asked why he had
arm on the podium. Given this niagara of contradictory statements, it simply is impossible
any of Mitmoen's disputed testimony.
I therefore find that Mitmoen used grossly excessive physical force against M.T. and
thereby violated the District's Corporal Punishment/Use of Physical Force Policy (Joint
If the District had terminated Mitmoen for such gross misconduct, his discharge would be
Since the District instead imposed a lesser discipline by suspending Mitmoen, albeit for an
extraordinarily long time, it follows that the District had just cause to do so.
I also find that Mitmoen's 26 years of service does not warrant any mitigation of his
suspension and that Johnson's October 2 letter of suspension to Mitmoen (Joint
Exhibit 24) contained
sufficient grounds for that suspension even though some of the grounds given for Mitmoen's
suspension were not valid. The sheer brute force of Mitmoen's action also far exceeded the
two cases relied upon by the Association where teachers Donald Kirby and Angela Ruffalo
lesser discipline for committing far lesser violations of the District's corporal punishment
which did not involve "launching" any students into the air.
In light of the above, it is my
1. That the District had just cause under Article XIV, Section H, of the contract
suspend grievant Victor Mitmoen for nine months.
2. That this grievance is therefore denied.
Dated at Madison, Wisconsin, this 30th day of April, 2002.