BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
FOND DU LAC SCHOOL DISTRICT
FOND DU LAC EDUCATION ASSOCIATION
(K__ M__ termination grievance)
Davis & Kuelthau, S.C., by Attorney Mark F. Vetter and
Attorney Daniel J. Chanen, 111 East
Kilbourn Avenue, Suite 1400, Milwaukee, WI 53202-3101, appearing on behalf of the
Ms. Lucy T. Brown, Legal Counsel, Wisconsin Education
Association Council, 33 Nob Hill Drive,
P.O. Box 8003, Madison, WI 53708-8003 and Mr. Armin Blaufuss,
Winnebagoland UniServ Unit-South, P.O. Box 1195, Fond du Lac, WI 54936-1195,
behalf of the Association and Grievant.
At the joint request of the parties, the Wisconsin Employment Relations Commission
designated the undersigned, Marshall L. Gratz, as arbitrator to hear and decide a dispute
the above-noted grievance. By agreement of the parties, the dispute was arbitrated pursuant
grievance procedure provisions contained in their July 1, 2000 - June 30, 2001, agreement
Pursuant to notice, the grievance dispute was heard at the District's Administration
February 20 and 21, and March 6, 2003. The proceedings were transcribed. Submissions of
and reply briefs were completed on May 13, 2003, marking the close of the hearing.
At the hearing the parties authorized the Arbitrator to decide the following issues:
1. Did the District have just cause pursuant to Art. VIII.
Sec. A. when it dismissed K__
M__ from employment effective at the end of the day on November 27, 2002?
2. If not, what is the appropriate
ARTICLE VIII - PERSONNEL POLICIES
A. Teacher Contracts
5. No teacher shall be dismissed or
suspended without just cause.
The District is a K-12 public school district serving Fond du Lac, Wisconsin. The
and District have been parties to a series of collective bargaining agreements covering the
non-supervisory professional educators.
Prior to her discharge, the Grievant, K__ M__, had been employed by the District
as a teacher of severely cognitively disabled (CDS) students. Grievant worked with students
12-21 at the District's Woodworth School until being assigned, beginning in 1992-93, to
elementary school students at Waters Elementary. She remained at Waters until she applied
was granted a transfer to work in the CDS classroom at the High School beginning at the
start of the
2001-02 school year, where she continued until the October 28, 2002 incident occurred that
her termination. At the High School, Grievant's 2002-03 class consisted of seven students in
profoundly disabled of the school's three categories of severely cognitively disabled students.
October 28, 2002, Grievant was assisted by three paraprofessional Instructional Assistants,
Barbara Floyd and Tara Pilak. L__ K__ had substituted for one of Grievant's Instructional
during the spring of 2002, and when that employee left the District in mid-September of
K__ was assigned to replace her, at Grievant's request. Grievant's class shares its classroom
another class of CDS students taught by CDS Teacher Valerie Lenz. The District's seven
of Grievant's work during her twelve-plus-year tenure (including one evaluation performed in
2002) were all quite positive, with no significant problem areas noted, and no reference to
problems regarding mistreatment of students.
Grievant was disciplined on two occasions prior to her discharge. She was issued a
warning on January 26, 2001, for spitting at a student. Grievant did not grieve that warning,
did include a response to it, explaining that, while alone with five students, she ultimately
at the student to stop the student who was persistently following her and repeatedly spitting
face despite her unsuccessful efforts to stop the student from doing so in other ways. On
2001, Grievant was also issued a suspension without pay from March 15 - April 3, 2001,
reassignment to a reading program for the balance of the year with her return to the reading
and to the classroom in 2002-03 variously conditioned on mental health professionals'
That suspension was issued for conduct including "engaging in inappropriate and
involving students including . . . forcefully pulling students by their ears to get them to
your directions . . . forcefully pulling students by their hair at the base of their heads to get
comply with your directions . . . [and] forcefully squeezing the back of a student's neck and
a read mark to get the student to comply with your directions. . . ." Grievant did not grieve
suspension, but she did attach to it her own and the Association's responses to it. Those
among other things, asserted that Grievant's decision not to challenge the suspension was for
reasons and was not an acknowledgement that there were any bases for the District's
the Department of Social Services had investigated and found no basis for any action against
in the matters; that the District's investigation was biased and unfair in various ways; that the
had failed to provide the Grievant with adequate assistance to provide the services Grievant
expected to provide to her students; and that the misconduct alleged was an accumulation of
contentions about which the Grievant had never before been criticized or put on notice by the
On October 28, 2002, Grievant was suspended with pay pending a District
the cause of an injury sustained by a student in Grievant's class on that day. The injured
is referred to in this Award as "Student." By letter dated November 15, 2002, Acting
James Gryzwa wrote Grievant as follows:
The purpose of this letter is to advise you of the results of our
investigation into injuries received by one of your
students. Based upon that investigation, the District has concluded that you are the person
who inflicted the injuries
upon the student in question.
The investigation has established that on
Monday, October 28, 2002, you intentionally and deliberately imbedded
your fingernails into the neck of one of your students to get him to comply with your
directive that he rise up off of the
floor. Your fingernails left marks on the student's neck, some of which bled. When you
were informed of the student's
injuries by one of the instructional assistants, you did not report the injuries to anyone. Your
conduct was unacceptable
and will not be condoned. Your actions on October 28 have violated several Board of
Education Policies, including
but not limited to the following: Policy 1.4, 7.28, 10.1, 10.6, 10.610, 10.72 and 10.76.
[text of the referenced Board
policies is omitted].
During the 2000-2001 school year, you were twice disciplined for
the mistreatment of students. For the first
occurrence, you received a verbal warning. Later you received a two-week suspension
without pay and a temporary
reassignment because of additional multiple acts of student mistreatment, including acts
similar in nature to your
October 28 misconduct. One of the students you mistreated in 2000-01 is the same student
you mistreated on October
Your acts of misconduct on October 28,
2002, separately and in combination with your past acts of misconduct,
constitute just cause for your immediate termination from employment with the District.
Accordingly, on Tuesday,
November 26, 2002 at 5:00 p.m., a hearing before the Board of Education will take place at
which time I will
recommend that the Board immediately discharge you from employment. . . .
If you wish to challenge the outcome of that
hearing, you may do so under the Grievance procedure set forth in
Article VII of the Master Agreement between the Board of Education and the Fond du Lac
Finally, between now and the November
26, hearing, you will be suspended without pay for three days pursuant
to Article VIII(A)10 of the Master Agreement. At all other times, you will remain on paid
suspension pending the
outcome of the November 26 hearing.
. . .
Following issuance of that letter, the District, Association and Grievant agreed to
Board hearing and process the matter at Step 3 (i.e., the Superintendent's level) of the
procedure. It was also agreed that if the Superintendent decided at the conclusion of the Step
grievance hearing to terminate Grievant's employment with the District, Grievant's
be considered terminated at the end of the day on November 27, 2002, and that Grievant
proceed to binding arbitration.
The parties met on November 27, 2002, to conduct the Step 3 grievance hearing.
The hearing was not
completed that day and it was subsequently agreed that the Association could submit a
written statement of the position
of the Association and Grievant relative to the recommended termination. That Association
statement, submitted by
letter dated December 13, 2002, from Association UniServ Executive Director Armin
Blaufuss, read, in pertinent part,
Effective at the end of the workday on Wednesday, November 27,
2002 the Fond du Lac School District terminated
K__ M__. At issue is whether the
District had just cause pursuant to Article VIII of the Master
Agreement to terminate K__ M__'s employment.
On behalf of the Fond du Lac Education [Association] I assert the District did not have just
The allegation that led to the District
decision to terminate K__ M__'s employment was made by one of K__ M__'s
instructional assistants. This assistant alleged that she saw K__ M__'s fingers in a pinching
configuration before K__
assisted in lifting a CDS student from the floor at or near noon on October 28, 2002 in the
CDS classroom at Fond du
Lac High School.
From the Association perspective the
following particulars, among others, must lead to the conclusion that K__
M__ did not do that which she is alleged to have done.
1. The assistant while stating that K__
M__'s hand was in a pinching configuration did not actually see a pinch.
2. At the time of the alleged pinch the
assistant did not express any concern and further, did not look to see if
there was any injury or marks.
3. Another teacher was also helping to
get the CDS student up. She did not notice the pinching configuration
nor did [she] notice anything unusual at the time of the alleged pinch.
4. While the assistant has asserted the alleged pinch occurred
at or near noon, marks were not noticed on the
CDS student's neck until at or near 2:30 p.m. The marks were first noticed by the
same assistant who alleges she saw
K__ M__'s hand in a pinching configuration at or near noon.
5. Mary Fran Merwin, Fond du Lac
High School Principal saw the marks on the CDS student's neck between
2:35 p.m. and 2:45 p.m. on October 28, 2002. She described the marks as "fresh".
Based on the foregoing the District cannot meet its burden to
prove that K__ M__ did what she is accused of doing.
As such, the District does not have just cause to terminate K__ M__'s employment.
As remedy the District must
1. Immediately reinstate K__ M__;
2. Make K__ M__
whole for all lost wages and benefits;
3. Remove from K__ M__'s personnel file and any other
administrative files any reference to the incident that
allegedly occurred on October 28, 2002;
4. Provide a teaching environment that
is not hostile to K__ M__'s continued employment with the District.
By letter to Blaufuss dated January 13, 2003, Gryzwa issued his Step 3 answer,
read, in pertinent part,
I have reviewed and considered your December 13, 2002 letter
and the specific statements contained therein. After
reviewing that information, it remains my belief that on October 28, 2002, Ms. M__ engaged
in the inappropriate
conduct summarized in my November 15, 2002 letter. Therefore, this letter will confirm
that Ms. M__'s employment
with the District is terminated effective at the end of the day on November 27, 2002. If Ms.
M__ disagrees with this
decision, her recourse is to proceed to binding arbitration as set forth in Steps 5 and 6 of the
Grievance Procedure in
the Master Agreement.
The matter was then advanced to arbitration as noted above. At the arbitration
hearing, the District presented
testimony by its former Director of Personnel and Employee Relations, James Freeman,
High School Principal Merwin,
CDS Instructional Assistant L__ K__, CDS Teacher Valerie Lenz, Assistant High School
Principal John Wiltzius, and
Acting Superintendent Gryzwa, and rested. The Association presented testimony by the
father of Student, Grievant,
District Physical Therapist Linda Martinson, CDS Instructional Assistant Barbara Floyd (by
telephone), Dr. Charles
Wessels, M.D. (by telephone), and Association Representative Blaufuss, and rested. The
District then presented further
testimony by Merwin, concluding the evidentiary hearing.
Additional factual background is set forth in the positions of the parties and in the
POSITIONS OF THE PARTIES
The District has proven by clear and convincing evidence that the Grievant
embedded her fingernails in the back of Student's neck when she induced him to get up off
The record establishes: that Grievant has a pattern of using inappropriate and physically
prompts with students when she is frustrated; that she has continued to use inappropriate
prompts, e.g., the hair tug, even after she was specifically warned not to use the technique
at the hair at the base of a student's neck; that the wounds on Student's neck looked exactly
fingernail marks were curved upwards toward Student's
hairline; that Student's body position and Grievant's hand position, during the October
incident of lifting Student off the floor, were consistent with the wounds found on the back
Student's neck; and that there was no other incident on the day in question which would have
the embedded fingernail marks on Student's neck.
The District reasonably credited L__ K__'s description of Grievant's hand position
during Grievant's efforts
to get Student to get up off the floor. L__ K__'s description of Grievant's hand position
when attempting to get Student
off the floor was consistent with the wounds on Student's neck. Lenz corroborated the
details of L__ K__'s testimony
about the incident. Grievant's version of the incident has materially changed over time, and
it is inconsistent with
Lenz' and L__ K__'s in various respects. In contrast, L__ K__'s version has remained
consistent over time. There was
no other incident during the day in question that could have inflicted the distinctive fingernail
shaped wounds on the
back of Student's neck. Grievant's conduct as described by L__ K__ is consistent with her
prior inappropriate treatment
of students. She was frustrated when she could not get Student to get up from the floor on
October 28, 2002, and she
has reacted inappropriately on prior occasions when she was frustrated with students not
complying with her directions.
The Association has not presented evidence which undermines L__ K__'s credibility.
the Grievant, who has an obvious interest in the outcome of the case, L__ K__ can and
presumed credible where, as here, there is no showing that she had a motive to fabricate her
On the contrary, L__ K__ and Grievant had a positive working relationship. The evidence
concerning friction between Grievant and the Instructional Assistants in the CDS classroom is
attributable to Grievant's relationship with Instructional Assistants other than L__ K__. L__
supportive of the Grievant in the October 16, 2002, meeting with supervisors to address
concerns Grievant had about communication and respect within her classroom. It is
Grievant requested that L__ K__ be assigned to Grievant's classroom when a former
Assistant left her position. Indeed, L__ K__ testified that she thought of Grievant as a
For those reasons, the Arbitrator should conclude that the District had just cause to
the Grievant as it did, and the grievance should be denied in all respects.
The District has failed to meet its burden to prove that Grievant intentionally dug her
fingernails into Student's neck sometime shortly after noon on October 28, 2002. Other than
of wounds, the District's only evidence is the testimony of L__ K__, the Instructional
cared for and was responsible for Student throughout the day of October 28. The District
K__ should be believed, and not Grievant, because L__ K__ has no reason to lie, and
every reason to lie because she is the accused. The reasoning is very flawed. First, it
on the part of Grievant; but if she was not guilty, she is
not lying. Second, the District's reasoning fails to recognize the fact that if Grievant
did not cause
the injury, the next most likely person to have caused the injury is L__ K__ because she was
Student all day. This does not mean L__ K__ necessarily caused Student's injury (perhaps
did it to himself), but L__ K__ has a motive to throw blame on another. L__ K__ is
Even L__ K__ agrees that she did not see Grievant pinch Student or do anything else
inappropriate. Her later-embellished description of how Student jerked when Grievant placed
under his head is self-serving and contrary to the testimony of the other two witnesses, Lenz
Grievant. This circumstantial and unreliable testimony cannot establish proof that Grievant
fingernails into Student. The other evidence cited by the District -- the location of the marks
not support the District's case because such horizontal marks would not be made by the right
of a person standing to the right of the head of a student lying down.
There is substantial evidence that Grievant was not the person who injured Student.
do the marks on Student's neck not correspond to a feasible position for Grievant's had
lift, but the marks had characteristics that do not support the District's theory that the injury
inflicted two hours or more before it was first seen. In addition, the fact that the marks were
by any person for those two hours, despite Student having his head down on the table
highly questionable that the injury was inflicted at the time Grievant helped get Student up
floor shortly after noon.
Finally, the "motive" that the District attempts to establish is nonexistent. The
District says Grievant was
frustrated because Student would not get up, and thus dug her nails into him to get him up.
This scenario does not
make sense for a number of reasons. Lenz had just come over to give assistance, both Lenz
and L__ K__ were able
to watch Grievant's actions, and Student was already complying with their directions in that
his head was up before
Grievant put her hands under his neck. Grievant was confronted with Student lying on the
floor several times a day;
there was no indication that this time was different than all the times before. Yet, the
District alleges that Grievant's
frustration got the better of her this time. The only way the District can "find" an answer to
this inconsistency is to
allege that Grievant's two prior disciplines demonstrate that she did and will mistreat students
However, the past disciplines cannot and do not tend to show that Grievant engaged in the
alleged October 28, 2002,
misconduct at issue in this case. Especially so where, as here, District objections prevented
the Association from
submitting evidence that would have proven that she did not commit the misconduct for
which she had previously been
For the foregoing reasons, the Association requests that the grievance be granted and
Arbitrator order the District to restore Grievant to her prior position with all lost pay,
The central question in this case is whether the District has proven Grievant guilty of
intentionally and deliberately imbedding her fingernails into the neck of Student on
October 28, 2002.
The Arbitrator agrees with the parties that it is appropriate to require the District to
Grievant's guilt in that regard by clear and convincing evidence. The injury to Student was
to and investigated by the Fond du Lac County Department of Social Services regarding
physical abuse of a child. While that Department issued a February 11, 2003, determination
not find that any abuse, as defined by the Wisconsin Children's Code, the misconduct of
Grievant is accused is clearly such as would make the clear and convincing evidence standard
In the Arbitrator's opinion, the District has failed to meet that standard. At most the
evidence shows that
Grievant is one of several people, including Student himself, whose fingernails could have
created the marks.
The various descriptions of the blood in Student's wounds and the alignment of the
wounds in relation to
where Grievant was standing when Student was assisted in getting up from the floor do not
make it impossible for
Grievant to have caused the wounds. No witness described the color of the blood as bright
red. A dark red shimmering
appearance, even in somewhat rounded shapes, would not be ruled out by the passage of
time between shortly after
noon and 2:15 p.m. While Grievant's position standing somewhat to the right of Student's
head could have made it
awkward for her to have caused the marks described in the record, that potential
awkwardness does not altogether rule
out the possibility that Grievant caused the wounds, either.
Nevertheless, upon consideration of the record as a whole, the Arbitrator concludes
evidence does not clearly and convincingly prove that it was Grievant that caused the
Arbitrator's principal reasons for reaching that conclusion are as follows.
The physical nature of the injury persuasively indicates it was caused by a forceful
contact between someone's
fingernails and Student's neck area. Those fingernails could have been Student's. The
marks are consistent with
Student reaching over his head and digging his own nails into his neck. The evidence
indicates that Student's
behaviors sometimes include unpredictable conduct that threatens or causes harm to himself
or others. Student's
chronological age in October of 2002 was approximately 15, and his functioning or cognitive
age was between one and
two years. Student is physically imposing, standing about 6 feet tall and weighing
approximately 320 pounds. Clearly,
he is strong enough to have caused the wounds himself. He is nonverbal and not toilet
trained, but he is able to move
about without assistance. He has pinched and hit others at school. He has a tendency to lie
on the floor and to refuse
to get up when asked to do so, and he sometimes rolls around when he is on the floor, as
well. Regarding Student's
fingernails, Student's father testified as follows:
BY MS. BROWN:
Q Has [Student] ever hurt himself
with his fingernails?
A He's probably bleeding right
now. He scratches himself all the time. With this -- this disorder that he has,
it sometimes causes blemishes and different things and he's scratching all the time.
Q Do you know the condition of
[Student]'s fingernails on October 28th, 2002?
A No. They probably were
long. I'm the only one that cuts them.
Q Do you know --
A He doesn't let anybody else
Q Sorry. Do you know when
-- did you cut [Student]'s fingernails after October 28th, 2002 or shortly
A Yes, shortly after, I did.
Q Were they long when you
A They grow like weeds.
Yeah. I mean, three or four days and he's got to get them cut.
In addition, the District's case depends heavily on the credibility and reliability of
testimony about the position of Grievant's hand at the time Grievant assisted in getting
Student to get
up off the floor.
The Arbitrator finds L__ K__'s credibility to be suspect. It is undisputed that
Grievant specifically requested
that L__ K__ be assigned to replace her Instructional Assistant who left the District in
mid-September of 2002. L__
K__ testified that she and the Grievant were friends who had a good working relationship
and that she had never had
any disagreements or confrontations or problems of any kind with Grievant prior to October
28, 2002. (Tr. 125)
However, that testimony seems quite at odds with L__ K__'s later testimony that when she
discovered the marks on
Student's neck, she chose not to follow what she says she knew was the standard procedure
of showing the marks to
Grievant because L__ K__ was afraid that Grievant would yell at her because (L__ K__
believed) Grievant had caused
the marks. (Tr. 135) It also seems at odds with the statement L__ K__ testified that
she made to Don Kohlman in
connection with the marks on Student's neck to the effect of, "[Student]'s bleeding. Why do
they keep letting her do
this to these children?" (Tr. 135, 167)
Furthermore, the record as a whole establishes to the Arbitrator's satisfaction that
despite efforts by Grievant
to take charge of the Instructional Assistants and have them participate in the classroom
activities as Grievant directed
them, both L__ K__ and Pilak frequently continued to perform tasks as they chose rather
than as directed by Grievant,
and to not listen or pay attention when spoken to by Grievant; that Grievant attempted to talk
with her Instructional
Assistants, including L__ K__, to resolve some of the issues that were negatively affecting
their relationship during
the fall of 2002; and that when those efforts failed, Grievant sought the assistance of the
administration. Thus, at a
meeting on October 16, 2002, the Instructional Assistants, including L__ K__, were told by
Merwin and/or Wiltzius
that Grievant was the teacher and that the Instructional Assistants should follow her
directions and that if issues arising
in the classroom involving students should be taken up with Grievant and not the
administration or students' parents.
In the same meeting, Grievant was told that she needed to become a better leader so that the
would follow her directions and would not need to complain to the administration about
issues arising in the classroom.
About a week later, when Merwin asked Grievant and her Instructional Assistants how things
were going, the
Instructional Assistants asserted that the situation between them and Grievant had improved.
Grievant asserted that
problems with the Instructional Assistants had not improved significantly following the
October 16 meeting. Grievant
specifically disagreed with L__ K__ and Pilak as regards whether there was still a lot of
whispering going on behind
others' backs and a lot of private conversations going on in the bathroom. (Tr. 462) Then,
in the week prior to
Monday, October 28, 2002, Grievant had occasion to verbally scold L__ K__ and Pilak for
failing to follow her
directions. (Tr. 465-66 and 481-82)
The Arbitrator also finds L__ K__'s reliability to accurately recall the physical
on the date in question to be suspect. In that regard, L__ K__ testified that Student's hair
almost to his shoulders (Tr. 130) and that Student's hair covered the majority of his neck
L__ K__ from seeing the wounds when he had his head down on the table and she was
to him on the afternoon of October 28. (Tr. 154) Lenz, who routinely washes Student's
testified that Student's hair length was fairly short and not down to his shoulders. (Tr.
photograph and witness drawings of Student's head and neck with Student's head bent
it would have been on the table over which L__ K__ had been standing) all show the wounds
on Student's neck than the ends of his hair and not covered by his hair.
The Arbitrator also finds it improbable that L__ K__ did not specifically look for a
resultant injury within minutes of the time Grievant and Lenz assisted Student in getting up
floor. If L__ K__ had in fact seen what she claims to have seen as regards the position of
right hand and fingers and the swinging of Student's head to his right at the time Grievant's
came into contact with his neck, and if she truly believed that Grievant was repeatedly
children, one would expect that she would have taken the opportunities she had to promptly
to see whether Grievant's action had left any marks on Student's neck.
The Arbitrator also finds it improbable that Student's head swung as L__ K__
as he was getting up with Lenz' and Grievant's assistance. (Tr. 132) In her testimony about
observed during the effort to get Student up off the floor, Lenz mentioned no such head
but rather described Student's getting up as "just one move." (Tr. 189) Lenz was facing
lifting him by his hands while her feet were in contact with his as a fulcrum.
The Arbitrator also finds it improbable that if the injury had occurred between noon
p.m. that it would not have been noticed by L__ K__ or some other adult in the room prior
p.m. L__ K__ was with Student for all but about 5 minutes of that time period. (Tr. 133)
some of a pumpkin carving activity, Student was seated with his head down resting on his
the table. (Tr. 152-53) L__ K__ was standing beside Student and Kohlman was standing
K__ during the pumpkin carving, as well. However, no one called attention to any injury on
neck before L__ K__ did so around 2:15 p.m.
The District's case also depends heavily on the validity of its contention that the
inflicted the injury because she became frustrated with the difficulties she was having in
Student to get up off the floor. However, the Arbitrator finds it improbable that the
leading to Grievant's touching Student's neck were such as would have resulted in the
inflicting the injury because of frustration. Getting Student up from the floor was a task that
performed daily. By the time L__ K__ claims that Grievant positioned her right hand in a
fashion, Lenz was directly involved in assisting Grievant to get Student up, and both Lenz
K__ were in a position to observe at least generally what Grievant was doing. Those
made it improbable that Grievant was sufficiently frustrated to resort to digging her
Student's neck to cause him to get up. Those circumstances also made it improbable that
would engage in such an action because of the high risk of detection and possible adverse
In the context of the foregoing, the balance of the record evidence relied upon by the
also does not clearly and convincingly establish that Grievant caused Student's wounds.
While all of
the District's contentions have been considered in reaching that conclusion, three in particular
First, it is true that Grievant's October 31, 2002, drawing of the injury showing the
injuries opening downward is inconsistent with those drawn by Merwin on October 28 and
K__ on October 29, both of which showed the curved injuries opening upward toward the
Student's head. Grievant's drawing is also inconsistent with Grievant's November 20, 2002
(Exh. 18) to Gryzwa in which she describes her initial reaction to seeing the wounds in her
as prompting her to comment to L__ K__ -- before Grievant was aware of any accusation
Grievant had caused the marks -- that Student "could have done it himself." For those
among others, the Arbitrator does not find Grievant's drawing to be an accurate depiction of
wounds. Rather, the Arbitrator
concludes that the injuries did, in fact, open upward. However, because the drawing
was not made
as proximate in time to Grievant's viewing of the wounds as Merwin and L__ K__'s were,
Grievant's inaccurate drawing is not a sufficient basis on which to conclude that Grievant
deliberately falsifying her drawing to free herself from blame for causing the marks.
Second, it is also true that Grievant reacted to learning that L__ K__ had taken
of the classroom and had shown his wounds to Kohlman, by angrily criticizing
L__ K__ for having
done so and by directing her return with Student to Grievant's classroom. However, that
is just as persuasively explained as a rebuke for and correction of L__ K__'s disregard
for a recent
supervisory directives to take up issues arising in the classroom with Grievant, as it is an
of guilty knowledge on Grievant's part.
Third and finally, it is also true that shortly after Grievant learned that she was being
of injuring Student, Grievant told Lenz that Grievant had not been attempting earlier that day
the hair tug prompt that Grievant had previously described and demonstrated for Lenz as a
sometimes used for getting Student up off the floor. While that statement could reflect guilty
knowledge on Grievant's part, it could also have simply been an innocent effort to identify
possible basis on which the District could mistakenly conclude that Grievant had caused
injury. In any event, the hair tug prompt Grievant had demonstrated to Lenz was a prompt,
painful hair pull, such that it was materially different than digging fingernails into Student's
enough to leave marks with blood in them.
There remains the District's additional basis for the discharge, that Grievant "failed
the injuries to anyone" when she was informed by L__ K__ of Student's injury. In that
record shows that Grievant had no meaningful opportunity to report the injuries to the
prior to the time that administration members were viewing the injuries for themselves.
learned of the injuries from a brief hallway interaction with L__ K__, after which Grievant
L__ K__ to return to Grievant's classroom with Student. Very shortly thereafter, Merwin
Wiltzius -- in response to Kohlman's report of the injury to Wiltzius -- arrived in Grievant's
classroom and began to examine Student for themselves. In those circumstances, the record
persuasively establish a wrongful failure on Grievant's part to report the injury.
Because the District has not sustained its burden of proving that Grievant was guilty
misconduct charged in the District's suspension and termination letters, it follows that the
not have just cause to discharge Grievant and that the discharge violated the Agreement.
The Arbitrator has accordingly ordered conventional relief in the forms of
reinstatement, back-pay and employment record expungement.
DECISION AND AWARD
For the foregoing reasons and based on the record as a whole it is the DECISION
AWARD of the undersigned Arbitrator on the ISSUES noted above that:
1. The District did not have just cause pursuant to Art. VIII. Sec. A.
when it dismissed K__ M__ from
employment effective at the end of the day on November 27, 2002.
2. Unless the Association and the District agree otherwise, the appropriate
remedy for the violation of
Art. VIII. noted in 1, above, is that the District shall immediately:
a. offer K__ M__ reinstatement as a CDS Teacher at the
Fond du Lac
School, with full restoration of her seniority and of other rights and privileges.
b. make K__ M__ whole, without interest, for the loss of wages and
benefits she experienced
by reason of the District's suspension and subsequent termination of her employment
effective at the end of
the workday on November 27, 2002, (with a set-off for interim earnings that Grievant would
not have received
had she not been suspended and terminated).
c. remove from K__ M__'s employment record all references to the
subject suspension and
3. The Arbitrator retains jurisdiction for a period of 60 calendar days (and for
extension or extensions of that period as the Arbitrator may hereafter order) to resolve, at the
of the Association or District, any disputes that may arise between them regarding the
application of the remedy ordered in 2., above.
Dated at Shorewood, Wisconsin, this 18th day of July, 2003.
Marshall L. Gratz, Arbitrator