Both parties introduced considerable testimony regarding Grievant’s interactions with his colleagues.  It would unduly prolong this Decision to go into each of the individual accounts.  Suffice it to say that some of his colleagues reacted strongly to his personality, either negatively or favorably.  Those testifying for the District found him opinionated, repetitive, and dominating in staff meetings; considered his classes undisciplined and noisy; believed he did not consistently enforce school rules; and found he was often tardy.  Those testifying for the Association found him thoughtful, dedicated, and creative; considered his classes well-run; observed that he enforced school rules as well as their colleagues; and believed he was at least as timely as their colleagues.  By all accounts, he was forceful and persistent in advocating changes in practices, both in writing and during staff meetings.  Some teachers found his suggestions for change to be an implied affront to those who had developed existing practices, while others welcomed them.

Grievant was only partly cognizant of the negative staff reactions.  In a February 1995 staff meeting, a teacher interrupted Grievant’s comments on the subject under discussion by saying she was tired of having him, as a new teacher, coming in and criticizing what the VVHS staff had been doing for 20 years.  Other colleagues hushed Grievant when he started to respond.  After the meeting, he wrote a memo acknowledging his colleagues’ frustration and anger, including their anger toward him.  He encouraged a continuation of the discussion “in order to reach some level of understanding.”  He went on to suggest reasons for the frustration, as well as ways of respond­ing to the frustration.  He suggested that all staff should become involved in expressing their views.  He also suggested that the “old guard” at VVHS “‘loosen up’ and accept the new staff as equal part­ners, in all respects.”

More subtle staff reactions escaped Grievant’s attention.  For example, as Grievant was speaking in a meeting conducted by consultants “Frank and Maggie” in May 1995, the consultants pointed out that his colleagues had “tuned him out,” an assertion that Grievant disputed.  The consultants then asked staff to raise their hands if they were not paying attention to him.  According to the District’s wit­nesses, all the teachers in the room raised their hands.

Grievant became involved in attempts to improve staff communications and relations.  In January 1995, he prepared handouts for a staff “Unity Zone” in-service.  His handouts included a cover sheet describing the purpose of the in-service; a memo discussing his philosophy of “good human relations,” and a two-page document he used in his classes entitled “Guide­lines to ... Successful learning.  Successful teaching.  Successful human relations.”  Those documents described various communications and human relations skills.  Not all staff reacted positively to the comments in these documents.  For example, teacher Lynda Darling sent him a note asking whether he was “under the assumption we aren’t doing these things already?” and commenting, inter alia, that she felt he was “putting us down when you say we should be doing things, as if we don’t already.”  Similarly, in October 1995, when Grievant distributed a lengthy list of suggested “improvement projects” to staff, Schar noted a comment from teacher Colleen Tranch that his “good ideas get lost in his poor, poor inter­personal relations skills.”

Some of the staff who reacted negatively to Grievant approached him personally or wrote memos to him expressing their concerns.  In some cases, those concerns were stated in strongly negative tones.  Some of those memos were copied to Schar.  Other staff went directly to Schar, either personally or in writing, without first bringing their concerns to Grievant.

Some staff observed or heard from students that Grievant was not enforcing school rules, or was making critical comments about school policies.  In some instances, staff took those reports directly to Schar without discussing them with Grievant; in others, they copied Schar with memos to Grievant regarding those reports prior to getting his response.  One of the latter memos, a March 28, 1996, memo from Linda Eggiman, received a lengthy response from Grievant, which was also copied to Schar.  In his response, Grievant disputed Eggiman’s factual assertions, alleged the incident began before his arrival and without his participation, and asserted Eggiman and another teacher had failed to follow proper procedures in the situation. No evidence exists that Schar investigated the disputed event.  Grievant sometimes disputed other reports, and sometimes acknowledged violations of the rules but offered explanations for making an exception.

Staff complained directly to Schar in September 1995 when Grievant began holding the first ten minutes of an afternoon class in the cafeteria to permit students to eat, since they could not eat in class.  He testified he hoped to improve their concentration.  Students in other classes began asking for an afternoon break as well.  None of the staff brought their concerns to Grievant, nor did Schar mention those complaints to him.  Instead, Schar came by the cafeteria while the class was there and asked what he was doing.  A dis­pute exists regarding the exchange that followed; however, Grievant discontinued his afternoon breaks.

One example of a memo copied to Schar was when Head Teacher Charlotte Lezcano learned in May 1996 of a planned student walk-out to protest a student suspension.  She heard one student organizer shout, “And [Grievant] is behind this walk-out 100%.”^[1]  After the walk-out began, Lezcano went to Grievant’s class­room, where he was con­ducting a class.  She announced to the class that their concerns were based on misin­for­mation and incomplete infor­mation, and urged them to reconsider.  As she turned to leave, she stated to Grievant, “Your apparent support of this walk-out is also based on incomplete information.”  Grievant became visibly angry and asked whether that comment was directed toward him or the class.  She confirmed that it was directed to him.

Grievant followed up with a memo to Lezcano denying any involvement in the walk-out and re­quest­ing an apology to him and the students who were in the classroom at the time.  Lezcano responded with a memo recounting her recollection of events, including the student’s comment that Grievant supported the walk-out.  She sent a copy of her memo to Schar.  Grievant responded with a memo denying any information about or involvement in the issues and activities of that day.  He suggested that Lezcano should have verified the accuracy of the student’s statement with him before accusing him in front of his students.  He also crit­i­cized her handling of the walk-out.  He again requested an apology to himself and to the students who were in class at the time of her visit.  He copied his memo to Schar.  Lezcano responded with a note reading:

Your repeated requests for apologies are nothing less than bizarre.

How do you find the time to type lengthy memos filled with misinformation?  Let it go.

Grievant sent a memo to Schar requesting that she encourage Lezcano to apologize, or take disciplinary action if no apology was forthcoming.  Lezcano testified that, until she read this last memo, she did not realize how offended and hurt he had been, as she did not consider her accusation “that big of a deal.”  Two days later, she sent Grievant a handwritten note reading, “Sorry.”  She copied this note to Schar with a note reiterating that students had said “he encouraged their rights and how to do it.”  No evidence exists that she gave Grievant a copy of her note to Schar or discussed that allegation with him, nor that Schar investigated the allegation.

Shortly after this incident, Lezcano sent Schar a memo quoting unnamed students’ com­plaints about Grievant.  She testified many students complain about teachers, and that VVHS students have trouble suc­ceed­ing in school.  She normally takes complaining students to meet with the teacher, because she likes to have both sides before making a judgment.  She testified she did not bring the complaining students quoted in her memo to meet with Grievant because she did not want to “undercut” a staff member.  No evidence exists that Grievant received a copy of the memo or was asked to respond to the comments.  Lezcano testified she also heard students make positive comments about Grievant, which she did not document.  She further testified that many students trusted and liked Grievant and enjoyed working with him.

Between February 20 and March 11, 1996, a number of teachers wrote memos to Schar recounting their perceptions of Grievant’s conduct and its effect on them.^[2]  Some indicated they had tried approaching Grievant about past concerns but had given up; others did not mention whether they had brought their con­cerns to him.  One letter, by Joan Murphy, started with the comment that she understood Schar was ask­ing for concerns about Grievant; she concluded by commenting, “This feels somewhat out of integrity to not be saying this directly to [Grievant].”  Schar called Murphy and asked her to take her concerns directly to him.

Colleagues and other staff members who liked Grievant did not write notes on his behalf at the time of the staff complaints described above.  Some wrote notes in support of his retention at and after the time of the School Board meeting.  Among those was former Vice Principal Bob Wilson, now deceased, who directly supervised Grievant during his first two years at VVHS.

Schar also reacted strongly to Grievant.  Like some of his colleagues, she was troubled by his persis­tence during staff meetings.  At a staff meeting in September 1995, she responded to his lengthy criticism of a controversial District policy on the agenda by suggesting that he find another school district.  He responded that he would tell her what he had told his sergeant in the military when his sergeant told him to find another country: “I told him to go screw himself.”  Grievant approached Schar after the meeting.  He told her he hoped she had not taken his comment personally and that he had not meant to offend her.  Schar testified she responded “OK.”  No evidence exists that she apologized for her comment.

Schar also found herself intervening in disputes between Grievant and his colleagues.  For example, she became involved in a dispute over Grievant’s handling of a fundraising activity by the Future Business Leaders of America (“FBLA”) in October 1995.   Grievant filled in for Carole Marklund to hold an FBLA meeting during Marklund’s sick leave, at a time when the club was discussing fundraising ventures.  Grievant arranged for a family business to supply car fragrance products to the club for sale as a fundraiser.  A dispute exists regarding whether Marklund was aware of or approved this project before her absence.  The products were not successful.  Marklund raised this issue with Schar during her own evaluation pre-conference meet­ing.  She told Schar she had not wanted this fundraiser and was confused about how to repay Grievant for the cost of the products.  Schar encouraged her to turn the problem over to Grievant.  Schar also wrote a memo to Marklund, copied to Grievant, saying school funds were not approved to pay the invoice for the products and attaching guidelines for club purchases which had not been followed in this instance.

Barbara Meyer, with whom Grievant co-taught math beginning in 1996, involved Schar in several issues revolving around that assignment.  Initially, she copied Schar with memos she sent to Grievant regard­ing scheduling a meeting to plan for co-teaching, and Schar became involved in setting the meeting date.  Following the meeting, Grievant requested copies of various teaching materials.  In response, Schar in­structed him to have a secretary, Mary Ann Schwab, do the copying for him.  However, a dispute arose over the way Grievant and Schwab handled that process. Schwab offered to get Meyer’s materials because Grievant would be teaching until after Meyer left for the day.  Meyer became upset that Grievant had not come to her himself, and complained to Schar.  Schar instructed Grievant not to ask Schwab to gather the materials; instead, she instructed him to get the materials to Schwab from Meyer’s box of materials.

Meyer wrote a memo to Schar in March 1996 noting that Grievant had more tardies for a class they co-taught than any student.  She requested that Schar get Grievant “the help he needs to be a professional or quickly get him removed from our school!”  She testified Grievant probably did not receive a copy of this memo.  Grievant testified he had talked to Meyer at the beginning of the term about the effect of his assign­ment to a reg period in another wing of the building immediately prior to their class.  His recollection was that Meyer agreed that, because her reg period was in the same room as their ­­class, she would be present to begin the class and he would report there as soon as his duties in the other wing permitted.  He presented this explana­tion to Schar when she raised the subject with him.  Meyer recalled a conversation about Grievant’s prior reg period, but denied that the agreement he described existed.  She testified she talked to Grievant during the first week of the term about the need to set an example for students by being on time.  She eventually gave up, and his tardiness became a “joke” after the first few days.

In October 1996, Schar asked Meyer why she had agreed to present a proposed change in school practice at a staff meeting.  Meyer responded she and Grievant had discussed the idea and she volunteered to make the presentation “‘cuz he [Grievant] was long-winded & not too well liked or re­spected & it would have a better chance of serious consideration.”  Meyer eventually began copying Schar with every note she wrote to Grievant.  She did not copy Grievant with every note she wrote to Schar about him.

Schar also became involved in working out a division of responsibilities between Grievant and Brian Derryberry, with whom he was co-advising, in the fall of 1996.  Eventually, after receiving a memo summarizing the agreed-upon division of responsibilities, she sought out Derryberry with questions regarding the division; this led Derryberry to seek modifications of the agreement.

Schar became involved in another dispute in the fall of 1996, when Grievant was reassigned from teaching Office Systems to teaching Math.  The remaining Office Systems teacher, Marklund, objected that he had taken the complimentary teacher’s copy that had been acquired for him when he taught Office Systems.  Marklund had a set of those materials, but wanted the extra copy at home.  Grievant insisted the books were his and suggested that, if Marklund wanted a second set, she could acquire another complimen­tary copy by contacting the publisher.  Marklund brought the dispute to Schar, who ordered Grievant to turn over the books.  Linda Eggiman, the building Association representative, advised him to com­ply rather than face an insubordination charge, but wrote a memo to Schar disputing the propriety of the order and noting the practice was for teachers to take their free curriculum books with them when they moved.

GRIEVANT’S DISCIPLINE AT VVHS AND ITS AFTERMATH

On February 20, 1996, Schar sent a note to Grievant asking to meet with him about “staff reactions to your comments at today’s staff meeting and other staff meetings.”  Her note indicated she had asked Eggiman to attend.  Grievant responded he would meet with her, or with others on the staff, or with Eggiman; he also indicated he would attend a “general meeting for staff to discuss the conduct of staff meetings in general.”  However, he objected to a meeting with Schar and Eggiman on the subject.  He testified his reluctance to have Eggiman as his representative was based on prior conduct by Eggiman, when she shared with Schar a memo he had written to the Association’s UniServ Consultant.  Schar eventually agreed that he could have the representative of his choice at the meeting.

Schar sent a copy of Grievant’s response to Eggiman, who sent him a memo accusing him of “insubordinate verbal behavior and abuse” of the principal and staff in meetings.  Eggiman’s memo informed him she would represent him at the meeting if he wished, and described the limited extent to which she would be involved in the meeting.  It also informed him that, “If you choose not to have me present, it will go on record that you did so even though the principal made the offer.”  Grievant responded with a memo objecting to the content and tone of her memo, questioning whether she would provide unbiased representation, sug­gesting that she was “collaborating with others to discredit me,” and denying any improper behavior.

On March 12, 1996, Grievant and Association UniServ Consultant Randy Ventgen met with Schar and Wilson.  Schar orally reprimanded Grievant about attendance and presented letters of com­plaint from fellow staff members.  Grievant asked to meet with staff­ on the complaints.  Schar denied his request.

Grievant prepared a written response to the matters raised in the staff letters, which he presented at an April 16 meeting with Schar.  In that response, he asserted the complaints “contain many inaccuracies, mis­representations, fabrications and contradictory statements.”  He asserted that Schar had “collaborated” in their creation.  He noted he had responded in detail to some letters, but chose not to make those responses public.  He requested a written apology from the authors of the complaints and from Schar.  He requested pay for the time spent responding to the charges.  He requested that Schar deal with him “openly, fairly and in a timely manner.”  During the meeting, he offered to meet with the individual letter writers and discuss their concerns.  Schar responded the staff members did not want to meet with him.  Grievant had prepared a separate response to the attendance issue, but ultimately decided not to give it to Schar.

During the April 16 meeting, Schar gave Grievant a memo entitled “following school policies and procedures.”  Included in that memo were four instances between April 1995 and March 1996 in which he was alleged to have failed to follow school policies.  Also included was a section on “Staff perception of [Grievant] not following school policies and procedures” listing four memos from staff that had been given to him at the March 12 meeting.  It concluded by listing the March 28, 1996, memo from Eggiman to Grievant, described above, without noting Grievant’s response to Eggiman’s memo.

On April 22, 1996, Schar wrote Grievant a memo documenting her observation that he entered the building at 9:34 a.m., when his work day started at 9:30.  He responded with a memo asserting he had arrived at 9:28, but had returned to his car for classroom materials and re-entered at 9:34.  He also notified her that the office clock was two minutes fast.  He asserted she was harassing him.  Thereafter, he periodically sent Schar memos documenting the late arrival of other teachers at staff meetings, as well as perceived violations of school policy by colleagues and administrators, including Schar herself.

THE PLAN OF ASSISTANCE

Schar prepared the POA on May 24, 1996 (the day of the student walk-out), and presented it to Grievant in a meeting on June 13, 1996.  A cover page noted it was “the result of letters of complaint from 10 out of 19 of your teacher peers ....  It summarized his alleged deficiencies as follows:

1.         Causing avoidable stress to peers through poor human relations and communication skills. 

a.          Inability to be flexible in working cooperatively with others: inability to acknowledge both sides of issues, arrive at compromises without offending peers, constructively manage professional differences, and demonstrate skills in communicating with staff. 

b.         Inability to cooperate with and support other staff members by observing the spirit and intent of district and school rules and regulations. 

c.         Inconsistent requirement of student compliance with and enforcement of school and district rules and regulations.

Each of the three identified deficiencies was discussed in further detail on a separate attached sheet.  Each page was headed with the phrase “Staff concerns:” followed by a list of quotes from unnamed sources, then followed by the elements of the POA.  The quotes were derived from letters and memos from indi­vidual staff members to Schar.  The POA set forth the following elements regarding “inability to be flexible, ....”

Improvements in performance expected:

a.          [Grievant] will demonstrate willingness to be flexible in working cooperatively with others; he will demonstrate working effectively with others.  These two teacher com­pe­tencies are further described in the PPS Teacher Evaluation Process Booklet, “Human Relations and Communications segment.”

b.         [Grievant] will develop the skills to cooperate with others by constructively man­aging professional differences, another human relations skill of a competent teacher described in the same PPS booklet.

c.         [Grievant] will demonstrate the ability to restate both sides of an issue when dis­cus­sions or problem solving occurs and to initiate win-win compromises.  He will demonstrate the ability to recommend school changes without discrediting existing school practices.

d.         [Grievant] will demonstrate such listening skills as restatement, summarizing, clar­i­fy­ing, etc.  He will not dominate meetings through repetitive and lengthy statements of his opinions.  He will demonstrate sensitivity and judgement in decid­ing when and how long to push for his point of view.

Plan for achieving desired performance improvements:

a.          [Grievant] will review and implement the spirit and intent of his own student hand­out, “Guidelines to ... Successful Human Relations”, page 1, #2, #3 and #4, dated 9/1/93 and page 2 “Guidelines to Quality Performance”, #3.  He will also follow the spirit and intent of his human relations philosophy memo to “Unity Zone Inservice Participants” dated 1/24/95.  (See attached documents.)

b.         In consultation with the principal, [Grievant] will identify 4-5 goals to insure the changes necessary for him to be a non-stressful peer to his colleagues.  He will iden­tify strategies for these goals and consistently practice them.

c.         [Grievant] will put suggestions for school change in writing to the principal until he can demonstrate skills in communicating with the staff.

d.         Immediately, he will demonstrate the willingness to be flexible in working coopera­tively with others and will demonstrate consistent improvement.

Schedule for assessing progress towards improvements:

Formal feedback from the principal to assess [Grievant’s] ability to work in a cooperative, col­laborative and supportive way with staff will be provided monthly through the end of the first semester, 1996-97 and every 6 weeks during the second semester of 1996-97.

It set forth the following elements regarding “inability to cooperate...”

Improvements in performance expected:

As defined in the PPS Teacher Evaluation booklet, Management Skills segment, [Grievant] will exhibit consistent application of district and school rules and regulations.

Plan for achieving desired performance improvements:

[Grievant] will locate and be responsible for learning district and school rules and reg­ula­tions and practice consistent observance of the spirit and intent of these rules.

Resources and assistance provided by district:

Both the PPS Guide and Handbook on Student Responsibilities, Rights and Discipline; the VVHS Staff Handbook; the VVHS Student Handbook; the Principal and Head Teacher.  If other resources are needed, [Grievant] will discuss them with the principal within 30 work­ing days.

Timeline for completion:

Beginning immediately there will be no further violations of school and district rules and regulations.

Schedule for assessing progress towards improvements:

Formal feedback from the principal to assess [Grievant’s] ability to work in a cooperative, collaborative and supportive way will be provided monthly through the end of the first semester, 1996-97, and every 6 weeks during the second semester, 1996-97.

Regarding “inconsistently using district and school rules ...”:

Improvements in performance expected:

As described in the PPS Teacher Evaluation booklet, Management Skills segment, [Grievant] will demonstrate skills in using district and school rules and regulations by requiring student compliance with and enforcing school rules.

Plan for achieving desired performance improvements:

[Grievant] will locate and be responsible for learning district and school rules and reg­ula­tions for students and be consistent in requiring student compliance with these rules.

Resources and assistance provided by district:

Both the PPS Guide and Handbook on Student Responsibilities, Rights and Discipline; the VVHS Staff Handbook; the VVHS Student Handbook; the School Principal and Head Teacher.  If other resources are needed, [Grievant] will discuss them with the principal within 30 working days.

Timeline for completion:

Beginning immediately there will be no further violations of enforcing student compliance with school and district rules and regulations.

Schedule for assessing progress towards improvements:

Formal feedback from the principal to assess [Grievant’s] ability to consistently enforce student compliance with rules will be provided monthly through the end of the first semester, 1996-97, and every 6 weeks during the following second semester.

Attached to these pages were Grievant’s 1995 “Unity Zone” hand-outs, discussed above.

PROGRESS MEETINGS UNDER THE POA

Schar had monthly progress meetings with Grievant and a representative from the Association during the 1996-97 school year; in most instances, that representative was Ventgen.  At the first progress meeting, Schar again directed Grievant to develop goals and strate­gies and identify resources.  Ventgen argued it was im­proper to ask Grievant to identify resources, goals, and strategies to implement the POA, because that responsibility lay with the District.  Ventgen also objected to Schar’s attempts to solicit self-analysis from Grievant on his progress under the POA. He also argued the POA was impossible to meet because it was in­herently subjective and lacked any specific steps toward the identified goals.  No evidence exists that Schar developed goals and strategies, or identified resources, beyond the comments in the initial POA; she did not repeat the directive that Grievant do so after October 1996.   As the year progressed, Schar issued additional directives relating to specific issues as they arose:

•                      At the first progress meeting, Schar directed Grievant to accurately document his arrival time using the school clock; she noted he believed the school clock was inaccurate.  She also di­rected him not to share his professional differences with students, referring to two alleged incidents.^[1]  Schar also directed Grievant to wait behind the counter while the secretary checked to see if Schar was available to meet, rather than follow the secretary to the open door.  She followed up with a memo directing him to stop “poisoning the air of cooperation and teamwork,” referring to the textbook dispute with Marklund.

•                      At the second progress meeting, Schar expressed concern that Grievant had begun sitting in the back of the room during staff meetings and rarely spoke.  She directed him to provide written notice of any support needed from her to implement the newly-adopted CIM Math curriculum goals in con­junction with Meyer.  She directed him to clarify, in writing, the allocation of co-advising responsibilities with Derryberry.  She repeated the directive not to share with students his “professional differences with VVHS.”  In this regard, she noted that Derryberry denied Grievant’s allegation that he had joined in comments that registration was inefficient.

•                      At the third progress meeting, Schar referred to a memo prepared by Advisor Charlotte Mesplay on an incident of student tardiness, and directed Grievant to do a better job of enforcing rules regarding tardiness.  She noted concerns with the allocation of co-advising respon­sibilities with Derryberry, and requested that he clear up the disagreement and secure Derryberry’s signature on the clarifica­tion.  She noted concerns over his efforts to implement the Math CIM.  She summarized the latter two concerns by indicating he had to “do a better job in working cooperatively with others, in working effectively with others and in demonstrating better skills in communicating with others.”  In a separate memo, she discussed the co-advising issue in detail as an example of his “unwillingness to be a successful team player” and “follow the spirit nor the letter of the co-advisor role.”  She assigned him specific tasks as co-advisor.

•                      At the fourth progress meeting, she asked him to notify the school secretary of anticipated absences from meetings more than an hour in advance if possible.  She noted he had complied with her directive to copy credits onto the “Year-At-A-Glance form” and noted his continuing disagreement with the propriety of assigning this task to him.

•                      At the fifth progress meeting, Schar noted that Grievant’s comments in two staff meetings had been appropriate.  She expressed some dismay at Grievant’s request that she document that observation in her staff meeting notes and agenda, but noted she had complied with that request.  She noted he had signed in with a time that differed from the school clock, then later began signing in by noting two times:  the time on the school clock and the time he believed was accurate.  She noted concerns with alleged comments to Derryberry in the presence of students.^[2]  She noted a January 21 memo from Scott Neumann of anonymous student comments regarding Grievant’s professional judgment and comments to students.  Grievant disputed the accuracy of the report and requested the names of the students, but that information was withheld.^[3]  She noted an incident in which Grievant was away from his hall duty spot when trespassers entered the building during a break; the other teacher as­signed to duty that day was out of the building.  She asked that he remain at his duty spot until the end of break.  She denied his request to have staff come directly to him with concerns rather than write memos to her, noting, “Staff do not wish to spend time discussing most concerns with you.”

•                      At the sixth progress meeting, Schar noted Grievant’s responses to the allegations in Neumann’s memo.  She directed him to “continue not making negative comments to students about staff and school programs” and to comply with requests for reasonable professional assistance; to “correct and return student papers in a timely manner;” to “stay on the topic of the class you are teaching;” and to allow students to progress at their own level and rate.  She gave him a summary of his history of calling in late, and warned of discipline for continued lateness.  She noted he signed in with two times—the school clock and what he believed to be the correct time.  She noted improvements in his behavior in staff meetings and in meeting on curriculum matters.

•                      At the seventh progress meeting, Schar noted Grievant did not have copies of responses to staff requests for student information.  She asked him to do a better job of providing such reports, and to “consistently and permanently contact advisors when your students regularly miss your classes or have other academic or behavior problems.”  She recounted an incident in which she found a student who had only recently resume attending class off task, and asked him to (1) monitor students for such behavior, (2) clarify with stu­dents what to do if they could not begin a new assignment or continue an old one, and (3) notify advisors of student non-attendance.

•                      At the eighth progress meeting, Schar admonished Grievant for calling in late 8 times since the end of November 1996 and for signing in an incorrect time on April 15.  She directed him to take the initiative to communicate more with Meyer about the curriculum and work collaboratively with her.  She noted Meyer’s frustration about, inter alia, Grievant’s decision not to attend a math focus group.  She told him to update his knowledge and teaching strategies in math, noting she knew of no staff development in that area that he had completed since his assignment to teach math.  She noted he had not participated in voluntary industry visits and had not attended focus groups and workshops suggested by Meyer.  She directed him to provide written evidence of math instructional im­prove­ment activities he had completed.  She gave him a student complaint letter and directed him to respond in writing, noting the student had declined to talk to him directly.^[4]  Referring to one allegation in the student’s letter, she reminded him of her earlier directive not to make “unprofes­sional comments about staff or the school in front of students.”

•                      At the ninth progress meeting, Schar noted three math-related professional development activities offered to Grievant, of which he had taken part in one and was looking at the flyer for a second.  She acknowledged that the third was a voluntary activity.  She commented on her decision regarding where vocational-related math should be taught, as follows:

I have made a decision.  And I want a discussion — but not a discussion of which one curricular area (academic classes vs vocational classes) shop math will be taught.  VVHS has historically been committed to finding ways of integrating academic and vocational subjects and has maintained flexibility in the variety of locations to teach subjects.  This will continue

Her notes of the meeting do not otherwise describe the discussion she desired on this topic.  Under “improvement still needed,” she “encouraged” him to attend “district and school professional development opportunities.”^[5]

•                      At the final meeting, Schar acknowledged that Grievant no longer dominated staff and committee meetings with “unduly lengthy and repetitive statements of your opinions.”  However, she listed continuing problems as follows:

A.         You continue not to be a collaborative team player in your primary teaching assignment, math.  This interferes with students’ success in your classes (see [student’s] 5/21/97 letter^[6]) and prevents a positive working relationship with other math program staff. 

B.         You continue not to take initiative to update your knowledge and teaching strategies in the math program.  As a result, involvement of the total math staff in curricular improvements is unnecessarily difficult. 

C.         Some students have reported that they have not made sufficient progress in your classes ([AJ’s] 4/17/97 letter, [student’s] 5/2/97 letter, and [student’s] 6/4/97 state­ment).  You have not made appropriate notification to advisors and families about such problems.  Your failure to report these problems leaves other staff at a disadvantage when stu­dents need help and when the progress reports sent to the students’ families are inaccurate. 

D.         You continue not to be punctual to work, even though your workday was adjusted at your request and you have not been required to arrive 15 minutes before the student day begins, which is the normal requirement.  For example, on May 30, 1997, the first bell for Reg had rung as you were leaving the main office after signing in. 

E.         You continue not to demonstrate effective professional communication skills.  This results in poor working relationships with other staff who feel undermined and unsupported by you.  Examples are Joan Murphy’s 4/24/97 note and in [student’s] letter, comments you made in her classes about school staff. 

F.         You continue not to show initiative to support curricular revisions and improvements in the math program. 

G.         You continue to be inconsistent in requiring student compliance with school rules.  This inconsistency undermines the educational and disciplinary program of the school, sends conflicting messages to students about acceptable behavior and interferes with the work of other staff.  A recent example is that on 6/9/97 one of the two students in class had pop/juice in your classroom.

RESPONSES FROM THE ASSOCIATION

In September 1996, Ventgen wrote a memo to Schar with various contract concerns arising out of her interactions with Grievant.  One concern was that “it appears you are soliciting complaints about [Grievant]; clearly that would violate the contract; any complaint that staff initiate should first be shared with [Grievant] and otherwise handle as the contract provides.”  Schar responded by stating her intention to “continue to solicit feedback from staff about [Grievant’s] progress in demonstrating his ability to work cooperatively, collaboratively and in a supportive way with them.”  She noted the POA was “predicated on [Grievant’s] peers’ complaint letters.”

Ventgen responded to the first POA progress meeting with a memo asserting Grievant had acted cooperatively and constructively with Marklund, and noted Schar’s comments on the textbook dispute came without any prior discussion with Grievant.  He asserted Grievant’s comments in a recent meeting were relevant.  He discussed the relevance of some items to the POA. In November 1996, Ventgen wrote a memo supplementing and correcting Schar’s notes of the second progress meeting in four respects.  In April 1997, after having been out of town for several progress meetings, Ventgen wrote to Schar with concerns from doc­u­ments arising out of those meetings.  He disputed the accuracy of Schar’s notes of Grievant’s comments.  He also objected to Schar including information relating to Grievant’s current evaluation in POA meetings.  He criticized her focus on “minor incidents as evidence of major deficiencies.”  He noted she accused Grievant of misbehavior without discussing incidents with him first, and did not refer staff complaints to Grievant.  He asserted she gave contradictory directives and changed the rules.  He complained Grievant was treated disparately.  He concluded that Grievant’s per­formance did not support a POA, much less a dismissal.

                                                   POSITION OF THE DISTRICT

Grievant’s dismissal must be judged by the substantive standards of ORS 342.865, which, because of Article 9D of the Agreement, are applied by an arbitrator rather than by the Fair Dismissal Appeals Board (“FDAB”).  Nothing in ORS Chapter 342 indicates an arbitrator has the authority to apply different sub­stan­tive standards to a dismissal.  The statute exists to protect the interests of the public, not simply teachers.  It therefore cannot be circumvented by agreement between the District and teachers.  Such a holding would be inconsistent with the statutory requirement that the notice of termination state the statutory reasons for dismissal.

The current statute permits a teacher and school district to agree to review of a dismissal by an arbitrator, but expressly requires application of the same statutory standards.  The prior statute made no mention of arbitrating a dismissal.  The current statutory language may not be applicable because the Agreement was executed before SB 880 took effect.  It is still relevant to the legislature’s intent in permitting arbitration of dismissal.

Article 9 of the Agreement creates a just cause standard for discipline, reprimands, and reductions in compensation, but specifically excludes dismissal “except as provided in paragraph D” from the just cause provision.  Dismissal was excluded, other than for employees not covered by the Fair Dismissal Appeals Law, because the dismissal of permanent teachers has always been regulated by statute, so there was no need for a just cause standard.

Article 9D permits arbitration of a dismissal as an alternative to the FDAB, but does not refer to or incorporate the just cause standard of Article 9A.  Nothing in Article 9D suggests an arbitrator would apply anything other than the statutory fair dismissal standards.  The right to arbitration is a procedural right.  When it is invoked, the arbitrator acts in lieu of the FDAB and applies the same substantive standards.

In this case, the same result would be reached whether statutory or just cause standards applied.  Under the statutory standards, Grievant’s conduct constituted insubordination, neglect of duty, and inade­quate per­formance.  Under a just cause standard, each of those is grounds for dismissal.  The procedural protections that are typically part of the just cause standard are incorporated into the District’s normal eval­uation and corrective action process, and were accorded to Grievant.  The District met the procedural requirements of the teacher handbook, District policy, and the Agreement.  A comparison of the severity of the offense and the severity of the remedy is incorporated into the statutory standards at ORS 342.905(8).

The District has the discretion to determine performance standards.  The Agreement does not limit the District’s discretion in setting standards of performance.  The teacher evaluation booklet outlines those standards for teachers.  Grievant was informed of those standards.

The District has the discretion to determine when a teacher’s performance merits a POA.  The Agreement and the teacher evaluation booklet both recognize this.  A POA is a helping tool, not a disci­plin­ary step.  It should be used freely to help teachers improve.  Grievant needed to improve.  The teacher evaluation booklet permits a POA to be implemented at times other than after an evaluation if “a significant need is identified earlier.”  Grievant had been evaluated in April 1995.  His next evaluation was not due until April 1997.  Schar identified deficiencies in Grievant’s April 1995 evaluation, but chose not to place him on a POA at the time.  His performance deteriorated the following year, and negatively affected other staff and students.  Schar decided he needed help to improve immediately, and imposed a POA in May 1996.  No evidence suggests any reason why her decision was inappropriate.

Grievant’s performance was deficient when the POA was imposed.  Throughout the 1995-96 school year, he engaged in a continuous pattern of bad behavior.  Before imposing the POA, Schar provided him with opportunities to improve his behavior.  His performance was significantly deficient.  He did not con­sistently apply the rules and regulations of the school and District; observe the spirit and intent of those rules and regulations; constructively manage professional differences; or work cooperatively with others.

An arbitrator does not substitute her judgment for management’s.  The question is whether the dis­ci­pline was “arbitrary, capricious, or discriminatory” or “contrary to the terms of the labor contract.”  Schar’s decision to impose a POA was not arbitrary, capricious, or discriminatory.

The Association’s objection to the POA is curious.  The alternative is the disciplinary track.  If a de­fi­ciency cannot be remedied by a POA, it is addressed with discipline.  While “inadequate performance” may generally evoke a POA, insubordination and neglect of duty may not.  The statute does not require a POA.  A teacher who commits such misbehavior can be discharged without a POA.  The Association’s argu­ment supports the dismissal.  Under that argument, the District could have moved to dismissal sooner.

The statute does not define insubordination.  Various formulations have been used to define insub­or­di­nation.  Grievant was insubordinate in failing to comply with Schar’s directives and in demonstrating disre­spect for her.  Schar repeatedly directed him to report to work on time, enforce and comply with school rules, and cooperate with his colleagues.  He was persistent in not obeying.  He always had excuses and just­if­i­ca­tions, but the bottom line was he simply would not do what he was told to do.  Schar had the authority to give the orders; the orders were clear; and Grievant understood them.  He also understood the conse­quences of non-compliance.  Yet he willfully disregarded Schar’s direct orders.  This is insubordination.

Grievant neglected his duties as a teacher.  He was responsible for complying with and enforcing rules; he repeatedly violated the rules and failed to enforce them.  He admitted he was aware of school poli­cies against these actions, but insisted it was within his discretion to comply.  His approach is that he will comply when he thinks the rule makes sense.  For the same reason, Grievant’s work performance was inade­quate.  His performance expectations included being a team member and teaching students to comply with school rules.  He persistently failed at both.

Grievant made no serious attempt to satisfy the POA.  He had an entire academic year to improve his performance.  Schar spent many hours with him identifying deficiencies, providing feedback, and trying to help him.  She repeatedly asked for his input in developing his own achievable goals for improvement.  He refused to identify goals and strategies, or to take any responsibility for the POA or for his problems.  Improvement cannot be made without acceptance of the problem.  He was offered a variety of types of assistance.  He suggested no assistance he wanted that was not available.

During the hearing, Grievant displayed the same uncooperative attitude that doomed the POA.  Rather than look at his own behavior, he faulted everyone else.  He could not or would not understand how his rude, condescending, hypercritical attitude affected others.

At the end of the POA, Grievant’s performance continued to be deficient.  At each progress meeting, Schar identified continuing deficiencies and gave Grievant specific examples of how he was doing—both good and bad.  Numerous examples existed of refusal to cooperate with colleagues.  At the end of the POA, his relationship with his colleagues had not improved.  In many instances, those relationships had deterior­ated. He continued to “cause avoidable stress” to colleagues.  He did not successfully complete the POA requirements.

The corrective plan failed, and dismissal was appropriate.  Whether evaluated under Fair Dismissal standards or a just cause standard, Grievant’s deficiencies were significant and justified dismissal.  His de­fi­ciencies were not minor or occasional.  They were chronic and persistent.  The effect was severe on the entire school.  He was single-handedly destroying the teamwork on which the VVHS program is built.

Grievant has raised no adequate justifications or defenses.  No evidence exists that Schar or teachers at VVHS were out to get him.  Schar had no reason to single him out.  She had no prior bad experience with him.  She had known him at Cleveland, and chose him for VVHS.  She needed someone to teach his classes.  If he was unsuccessful, she would have to find someone else to teach them.  Despite her concerns, she gave him a good evaluation after his first year at VVHS.  She did not immediately discipline him for insubordinate conduct.  She provided ample opportunities to remediate his deficiencies before resorting to the POA.  She spent hours working with him.  She met with him to discuss his performance under the POA and offer helpful suggestions.  Teachers were critical of Grievant’s performance for the same reasons.  Only a conspiracy theory would avoid the simple conclusion that Grievant had shortcomings.

Grievant is incorrect in arguing he had no responsibility to fulfill the POA.  He is not entitled to ignore the District’s performance standards.  He chose to refuse to full the POA and face discharge.

No evidence suggests Grievant would do better in the future if he were reinstated.  His attitude and testimony confirmed that another chance would be fruitless.  He fails to accept responsibility for his negative working relationships.  He refuses to accept the authority of others.  He showed no desire to change.

Long-term employment does not guarantee lifetime employment regardless of performance.  Schar acted reasonably and fairly.  Because of Grievant’s refusal to alter his behavior, his length of employment does not outweigh the negative aspects of his performance.  His seniority cannot overcome the needs of the staff and the students.

No reason exists to believe Grievant would have been successful in any other assignment.  His record at other schools reflected similar issues.  Transferring him to another location would simply relocate the prob­lem.  All schools in the District have moved toward an emphasis on team building and collaboration.  Grievant could have applied for a transfer if he thought that would make a difference.

Grievant is incorrect in arguing that some incidents discussed in progress meetings were not relevant to a POA.  The incidents related to his inability to collaborate, his punctuality, and his enforcement of school rules.  Even if an occasional incident did not relate to one of those topics, an enormous number of relevant incidents showed he did not correct his deficiencies.

Credibility issues should be resolved against Grievant.  His testimony conflicts with the testimony of all the District’s witnesses, including his own Association building representative.  His own documents show he is less than truthful.  For example, he claims the dispute with Marklund over FBLA funds was not significant to him, but his documentation treated it as a very significant item.  He claimed to try to get along with colleagues, but his written communication is abusive and insulting.

Grievant’s history with the District reflects similar problems at prior schools.  Those deficiencies are demonstrated by past evaluations, and by numerous exhibits related to Cleveland.  He was unable to com­mu­nicate on a civil and positive basis with peers and superiors.  He had ongoing arguments with teachers and administrators.  He escalated an issue to the superintendent, who became so angry that he walked out of a meeting.  Grievant’s response was to send an insulting letter to the superintendent.

Grievant committed a dishonest act.  On his first day at Cleveland, he was late for work, saying he did not know what day school started.  That led to a dispute over sick time, which was settled, including an agreement to destroy the documents related to the dispute.  The principal complied; Grievant retained a set of the documents and used them in the arbitration over his transfer from Cleveland.  He did some­thing similar in this case: he created documents that appeared to have been sent to Schar, then admitted he never sent them.

Grievant did not comply with his own documents.  The directive to develop goals to implement his own memorandum on interpersonal relationships was clear and reasonable.  His document is an excellent description of important principles in interpersonal relationships.  If he had followed them, his performance would have improved significantly.

None of Grievant’s letters or witnesses undercut the basis for the discharge.  With one exception, his witnesses did not work closely with him and were not in a position to judge his performance.  One teacher, Vanelli, worked with Grievant before the POA, sided with him in dis­putes with other staff, and blames Schar for his own reassignment.   Stillwell left VVHS before Grievant ar­rived, sub­sti­tuted for him infrequently, and reinforced the frustration staff felt over long meetings and fail­ure to enforce school rules consistently.  Leonard’s description of Grievant’s contributions outside the classroom is irrele­vant; the issue is Grievant’s performance as a teacher, not his contributions to other pro­grams.  Schwab was not in a position to judge his performance, and she confirmed complaints about his rambling and repetitive comments and off-topic discussions.  Sager had no basis to evaluate the POA, and con­firmed Schar was un­able to get Grievant to answer simple questions.  The testimony of teachers called by the District was more weighty and relevant.

The District did not violate Article 7A of the Agreement.  No evidence exists of discrimination based on sex or national origin.  Schar was not even aware of Grievant’s national origin.  Grievant was involved in activities related to Arab-American interests, and was complimented by Schar and District administrators for his efforts in these areas.  Other male teachers had no difficulty succeeding at VVHS.

The District did not violate Article 7B of the Agreement.  Grievant has never been faulted for the substance of his instructional presentations.  The issue over his participation in faculty meetings centered on the manner of his presentation of ideas, not the substance.  He was complimented for having creative and innovative ideas, and was encouraged to bring them forth.  The dispute involved his ability to present ideas in a civil and collaborative way, rather than being confrontational and insulting.

                                               POSITION OF THE ASSOCIATION

Just cause applies to permanent teacher dismissal arbitrations under the Agreement.  Article 9A pro­vides just cause for all discipline.  “Discipline” includes the maximum discipline, dismissal.  Article 9C excludes “dismissal” from just cause coverage, “except as provided in paragraph D.”  Article 9D grants permanent status teachers the right to appeal their dismissal to binding arbitration under the grievance proce­dure.  Permanent teacher dismissal is thereby folded back into the just cause protection as an exception to the Article 9C exclusion of dismissals from just cause coverage.

This is not a dismissal arbitration under ORS 342.910(12).  It is directly under the Agreement, negotiated by the Association and the District, to which contract standards apply.  The requirement of ORS 342.910(1)(c) to use Fair Dismissal standards for arbitration under that standard, therefore does not apply.

Variations on the seven tests for just cause set out in Enterprise Wire, 46 LA 359 (Daugherty, 1966) have been used to describe just cause in both the public and the private sectors.  A “no” answer to any of the tests signifies that just cause did not exist.

The Fair Dismissal standards include procedural and substantive protections that are tantamount to just cause.  They limit grounds for dismissal to nine reasons.  Evaluations are considered only if prepared in accordance with District policy.  Written performance standards are considered if adopted by the school board.  To support a dismissal, the facts relied upon must be found to be true and substantiated, based on a de novo review.  The true and substantiated facts must justify the statutory grounds cited.  The penalty of dismissal must not be unreasonable, arbitrary, or clearly excessive.  Reasonable written rules, policies, and performance standards will be considered unless they have been so inconsistently applied that they have become arbitrary.  These requirements parallel the requirements of just cause.

The Arbitrator is likely to reach the same result under either the just cause or Fair Dismissal standard.  Regardless of which standard applies, Article 9C of the Agreement requires that employees subjected to dis­missal be afforded the procedural rights of due process.

Insubordination has been defined as an “intentional and wilful refusal to obey, or disobedience of, an order or directive which a school board is authorized to give and entitled to have obeyed.”  It implies a course of conduct rather than a specific violation of an order or prohibition.  Three requirements must be satisfied.  The instructions must be clear, and the grievant must understand the directives.  The instructions must be understood to be an order, not just a request.  The individual must understand the possible penalty.  Failure to comply with District policy on occasion does not constitute insubordination absent an element of defiant intent.  Resentment at being placed on a POA does not constitute insubordination, provided the teacher tries to change his conduct to comply with the plan.

Neglect of duty refers to a failure to engage in conduct designed to result in proper performance of a teacher’s duty.  One instance of violation of a duty is not neglect unless the duty is a critical duty and the employee’s fault is very serious.

Inadequate performance refers to a failure to perform duties in conformance with District standards or requirements, after notice of deficiencies and an opportunity to improve, where the failure is repeated or substantial or results in substantial detriment.  The statute does not require the District to furnish a particular type of assistance to a teacher whose performance has been identified as inadequate, but requires cooperation with the teacher’s effort to bring about the needed change.

Grievant’s relationship with VVHS staff and Schar was doomed from the start.  Some staff had heard he had a “bad reputation” at Cleveland; more than one person told him that reputation followed him to VVHS; and Schar let him know in his first week that she had read his file and “knew about him.”  Before the end of his first week, Schar had started writing lengthy notes to the file, and had called his former principal to investigate him.  There was also an incompatibility of styles.  He is outspoken, challenging, and opinionated; questions the status quo; and energetically seeks improvements.  The small staff of teachers took criticism of the status quo as an affront and challenge to their competence.  Despite their feelings, Grievant had a contractual right to engage in faculty discussions of education policy.

Grievant did not have problems with everyone at VVHS.  Wilson considered him a good teacher and innovative participant in discussions of school improvement.  Vanelli found him relaxed and comfortable, and a hardworking, cooperative colleague with whom he had an excellent working relationship.  Schwab found him pleasant and polite, always ready to assist her and make suggestions for improving her skills.  Leonard found him bright, analytical, hard-working, and able to collaborate in raising questions and proposing solutions.  His friends and admirers were not the “power base” at VVHS.  By the end of his second year, Wilson had been demoted, and Vanelli and Schwab transferred out.

Schar’s style of conflict of resolution contributed to the difficulties.  She did not insist on staff com­mun­i­cating concerns directly to the staff member with whom they had the problem; she welcomed complaints made directly to her, solicited serial input from different staff, and never sat interested parties down together.  This enabled VVHS staff to complain to each other about Grievant, but never to let him know what was bothering them until long after problems could no longer be fixed.  Schar could have transferred Grievant out if she believed she had an unresolvable difference with him.  Instead, she made him “toe the line” of a POA that was impossible to understand or satisfy.

The District did not give Grievant forewarning or foreknowledge of the possible or probable disci­plinary consequences of his conduct.  Throughout the POA, Schar never indicated to Grievant that he was running a risk of being charged with insubordination.  His only “refusal” to comply with an order was when he was ordered to write his own POA by developing his own goals, strategies, and resources.  He had already identified a strategy of meeting with fellow employees to communicate directly about their concerns; this request was repeatedly denied.  Ventgen took the position that the order violated the District’s evaluation policy.  Ventgen explained it is not possible for an employee to identify goals and strategies concerning a problem he does not believe he has.  After two discussions, Schar never insisted that Grievant write goals and strategies, nor did she develop any for him.

In general, the POA did not advise Grievant of the behavior expected and prohibited.  It was almost entirely subjective.  The expectation was defined entirely by whether other staff felt stress, and whether they or Schar considered it “avoidable.”  No particular rules were singled out for enforcement.   Grievant was ex­pected to follow and enforce all rules, although the witnesses agreed no one was able to enforce all the rules all the time.  Schar did not make the intent of the plan clearer as time passed.  Its focus became less clear, as were the standards for compliance.  It was impossible for Grievant to know where to concentrate his efforts.

Schar adopted staff complaints as the basis for the POA, mostly focusing on Grievant’s behavior at staff meetings Schar had attended over the past 1½ years.  Schar had accepted his behavior at those meetings without discipline.  Months later, she placed him on a POA relying, in part, on the same behavior she had ac­cepted.  It is problematic that staff were concerned about his outspokenness.  Article 7B of the Agreement protects his right to participate in debate on faculty discussions of school policy.  Staff resented Grievant’s willingness to stand up for his opinions and continue the debate longer than they desired.  Nothing in the Agreement required him to preface his opinions with a compliment, or otherwise stroke his colleagues’ egos.

The directives in the POA did not reasonably relate to performance the District could properly expect of an employee.  District performance standards include human relations and communications skills, and em­pha­size a “willingness” to be flexible and constructively manage differences, but do not require that no disputes occur.  It was unreasonable for the District to expect Grievant to single-handedly eliminate disputes with his peers.  The POA was not a reasonable order because it did not follow District policy requiring a plan to describe any deficiencies that are to be addressed, the specific desired improvement in performance, and the specific action the teacher should take.  The POA contained only general requirements that focused on satisfying the other teachers.

In writing the POA, Schar relied on staff complaints, without any investigation of whether their com­plaints were true, and without any documentation of the extent to which the problem existed.  She simply assumed they were valid.  In POA meetings, Schar accepted staff complaints as a basis for noting a lack of improvement, without assessing the validity of the complaint.  For example, the Neumann memo in January reports hearsay statements by anonymous students.  Schar did not obtain their names or interview them.  She relied on the memo to conclude Grievant was continuing to cause avoidable stress to peers.  When she in­vestigated, she sought another teacher’s opinion and believed it, without allowing a response from Grievant.  She did not require or encourage face-to-face communication, the fairest manner of investigating.

Schar’s conclusion that Grievant had not made progress under the POA was not supported by any substantial evidence.  His participation in meetings was the main focus of staff com­plaints, and one of the few areas where the POA set out specific expectations.  He was ordered to stop dominating meetings through repetitive and lengthy statements of opinions, and to put suggestions for school change in writing to Schar.  He immediately limited his participation in discussions.  Beginning with the first progress meeting, Schar noted a reduction in repetitive comments and an absence of domination of meetings.  During the rest of the year, when there was participation on which to comment, Schar noted Grievant’s behavior was appropriate.

Schar had no substantial proof of continuing problems in other areas.  Her claim that Grievant was not a “collaborative team player” in math was based primarily on his choice not to go to voluntary math ac­tivities with Meyer, who had sent him vituperative hate mail.  She did not credit him for planning meetings he attended with Meyer, or his input in developing math curriculum.  She confused an evaluation goal with a POA requirement.  The criticism that he did not take the initiative to update his math knowledge and teach­ing strategies relates to an evaluation goal.  It is grossly unfair to dismiss him teacher for not instantly updating his knowledge in a new subject area outside his licensure area and most of his experience.

Student reports that they were not making sufficient progress was a new issue that arose in spring 1997.  If this problem existed, it was not part of the POA.

Schar falsely claimed Grievant had not improved his punctuality.  In February, she noted seven instances of late arrival since November.  As of April 4, there was not a single additional problem in this area.  By the last progress meeting in May, only one late arrival after February had been documented.  This was dramatic improvement, for which Schar failed to give credit.

As evidence that Grievant’s communications skills were not improving, Schar relied on a letter from Murphy which had never previously been provided to him or investigated.  She also relied on statements reported by a student, which Grievant denied making.  There is no indication she investigated further.  She gave no basis for believing the student rather than Grievant.

The alleged failure to show initiative to support curricular revisions and improvements in the math program may refer to evaluation goals, but not the POA.  The only example cited of continued inconsistency in enforcing school rules was a violation of the “no food” rule.  This was the only “no food” rule violation Schar had mentioned all year.

The rules applied to Grievant were applied to no other employee.  He was written up for being three minutes late, while other employees routinely arrived 3-5 minutes after their scheduled arrival time.  Many employees signed in after their starting time; in a single week in November 1996, Derryberry signed in late four out of five days.  No other staff received a reprimand or more severe discipline for tardiness.  Staff routinely missed staff or committee meetings, or arrived late.  No evidence exists that they were talked to about their absence, much less disciplined.  Meyer admitted that all staff were late sometimes; only Grievant was disciplined.

In meetings, VVHS staff, including Schar, repeatedly made long speeches, off-subject comments, and angry or emotional statements.  Only Grievant was put on a POA for his participation.

All witnesses admitted it was hard to enforce rules consistently with students.  It was the subject of a long debate at a staff training.  Only Grievant was put on a POA for it.

Constructive problem-solving was one-handed.  Schar expressly invited staff to bring problems and complaints concerning Grievant to her rather than work them out with him.  When a dispute arose, such as the textbook dispute with Marklund, Schar always took the side of the staff member opposing Grievant, no matter how unfounded or unreasonable their position.  Almost without exception, rules applied to Grievant were not applied in an even-handed, non-discriminatory manner.

Grievant was a very long-term employee with no record of discipline and no unsatisfactory evalu­a­tions before he came to VVHS.  The District tried no solutions other than to order him to reestablish good relationships with colleagues who had decided they disliked him and who had no reason to want to fix the relationship.  It provided no mediators, no problem-solving or communication skill training.  It did not con­sider other assignments.

The Superintendent relied on an inaccurate characterization of Grievant’s record.  He cited an alleged history of “disruptive patterns,” a claim not supported by Grievant’s evaluations.  He mischaracterized Grievant’s history of good service as a bad record.

The Arbitrator should find that Grievant’s dismissal violated Articles 7 and 9 of the Agreement.  In the alternative, the Arbitrator should find that the facts relied on by the District were not true and substan­tiated, that the facts did not establish the statutory grounds relied on by the District, or that dismissal was an excessive remedy.  Grievant should be reinstated, and all references to his dismissal and the underlying POA purged from his records.

                                                                      OPINION

PRELIMINARY MATTERS

As both parties recognize, the choice between “just cause” under the Agreement and the statutory criteria is of little moment in this matter.  The statutory criteria echo traditional just cause concepts.  In speci­fying grounds for dismissal, the statute provides no specific standard for assessing whether an employee, e.g., has been insubordinate, has neglected his/her duties, or has failed to perform adequately.  It is therefore concluded that the common industrial usage of those terms applies under the statute, as well as under the Agreement.  Accordingly, this Decision will refer generically to “cause” for dismissal.

The District bears the burden of establishing cause for dismissal.  In determining whether the District has met its burden, the Arbitrator notes that certain ­terms have, by long usage, come to have well ac­cepted and specific meaning in the labor relations world.  This is particularly so for the charge of "insub­ordination.”  Insubordi­na­tion is very serious mis­con­duct, inasmuch as it amounts to a "one-man strike."  In labor relations parlance, insubordination is commonly defined as a refusal to obey a bona fide, valid, clear, and unambig­uous work order after une­quivocal no­tice of the conse­quences if such refusal is maintained.

Defiance, uncooperative­ness, or insolence, by themselves, do not constitute insubordination.  It is only when they augment a refusal to obey a work order that they become aggravating factors in a charge of insubordination.  When they occur without a refusal to work, or without clear notice of the penalty for refusal, they constitute the separate, but lesser, offense of disrespectful conduct.    An employer's right to de­mand respectful conduct from employees toward supervisors arises out of the inherent right to manage the operation and maintain order in the workplace.  A breach of that expectation does not call for discharge for the first offense, and usually not even for the second or third offense.  It does call for a milder penalty aimed at correction.

Insubordination must be distinguished from self-help.  Self-help generally refers to a refusal to carry out a work order or directive on the grounds, whether valid or not, that the order violates the Agreement or is otherwise improper.  Self-help is the wrong method of challenging the reasonableness of a management directive—something an employee has a right to do through the grievance procedure.  In contrast, insub­ordination is misconduct that could not be cured by the employee's use of some other means of protest, and therefore carries a heavier penalty.

Insubordination must also be distinguished from failure of performance or simple misconduct.  For example, matters such as reporting to work on time, enforcing and complying with school rules, main­tain­ing currency in one’s area of instruction, and communicating with colleagues are potential conduct and per­formance issues.  One cannot turn such issues into insubordination by a global order never to have another conduct or performance problem.

With limited exceptions,^[7] cause for discharge requires clear and unequivocal notice of the con­duct expected and the consequences for failure to meet that standard.  It is of no moment whether the Arbitrator would consider par­tic­ular conduct unaccept­able.  Rather, the inquiry is whether the District has set a standard that makes such conduct unac­cept­able in this workplace.  To set such a standard, the distinguish­ing factors between permissible and impermissi­ble conduct must be consistent and predictable, and rules of behavior must be enforced reasonably and even-handedly.  With the possible exception of egregious conduct, the standard is not what should be tolerated from any particular employee, but what has been tolerated from others in that workplace.  In this regard, the concept of even-handedness requires that likes be treated alike.  The corollary is that employees whose behavior dif­fers substantially from the norm may fairly and reason­ably be treated differently.  The degree to which an employee’s behavior warrants a different level of strictness and oversight in enforcing behavioral norms must be assessed on a case by case basis.

Due process is an essential part of cause.  Before making a disciplinary decision, the District must make a reasonable and fair investigation of the alleged misconduct.  Where additional allegations sur­face during the investigation, the District must investigate those allegations if they would make a differ­ence in the disciplinary decision.  The accused employee must have notice of the specific charges and an opportunity to give his side of the story before a final decision is made.  The ultimate decision-maker must be privy to all relevant information uncovered in the investigation at the time the disciplinary decision is made.

In practice, it is difficult to conduct a full and fair investigation without interviewing the employee.  The reason behind conduct often is an essential part of cause.  It inevitably relates to the gravity of the mis­con­duct or the reasons for non-performance, and therefore to the appropriate penalty or other corrective action.  It also discourages jumping to conclusions based on partial knowledge.  Learning the em­ployee's side of the story, even where fault exists, allows the employer to tailor corrective measures to address the under­lying dispute more fully.  It also makes it more likely that evidence bearing on the accused employee's justifications will be collected while it is fresh.

The District’s obligation to investigate is on a par with the employee's obligation to avoid self-help in lieu of the grievance procedure.  It is just as necessary for management to adhere to contract pro­cedures as for employees and the union to do so.  Moreover, a prior investigation diminishes the likeli­hood of an impulsive or arbitrary decision, by giving time for tempers to cool.  It also permits management to measure the proposed penalty against the alleged offense in light of all relevant circum­stances, and to consider what response will best address the alleged misconduct.

Discipline must be corrective rather than punitive.  An arbitrator cannot second-guess the level of discipline merely because she would have imposed different discipline. So long as the discipline is within the range of discipline proportionate to the proven offense, that discipline must stand.  However, if the discipline falls outside that range, or if the offense proven is less serious than the offense charged, then ad­just­ment of the discipline is appropriate.  Of course, if no offense is proven, no discipline is appro­priate.

In rare cases, arbitrators reduce the penalty where manage­ment directly induced the misconduct.  The situation most likely to lead to this result is where supervisory misconduct provokes insubordinate or dis­respectful behavior.  In the interest of maintaining order, employees have a duty to be respectful to their superiors, even if those superiors are not behaving at their best.  A breach of that expectation calls for a milder penalty than that for insubordination. Except in very extreme cases, provocation is not an absolute defense to insub­or­di­na­tion.  However, it can be a mitigating factor which bears on the severity of the appro­priate discipline.

The fact that an employee has unresolved concerns does not bar discipline for legitimate work performance or behavior issues.  The employee has other forums in which to press those concerns, but in the meantime continues to have an obligation to perform adequately and conform to work­place behavioral standards.  In this regard, an employee’s good faith belief that he is being subjected to discrimination or harass­ment is not a license to misbehave.  At the same time, without more, the mere making of such an accu­sa­tion is neither insubordinate nor disrespectful.

THE MERITS

Although the factual recitation in this case is lengthy, the case is relatively simple analytically.  Ini­tially, the Arbitrator notes that Grievant’s record with the District cannot be characterized as a poor one.  Although the Superintendent’s notice of intent to dismiss accurately states that Grievant’s conduct at VVHS was consistent with a longstanding pattern, the District has not shown that his conduct was “disruptive of School District operations ... in prior assignments.”  Certainly, the need for improvement in these same areas was noted as ­­early as his first evaluation in 1972.  However, Grievant received contract renewals, salary advance­ments, and ultimately tenure—but never discipline—in years when the same traits were noted.  Had the District con­sidered those traits disruptive at the time, corrective action was within its means.  It therefore must be con­cluded that the dif­fi­culties he showed earlier in working relationships, staff communication, and supporting and enforcing school policies were within the range of acceptable behaviors for District teachers.

Similarly, despite vigorous arguments to this effect, the record does not demonstrate that Schar ident­i­fied deficiencies at the time of Grievant’s 1995 evaluation.  On every item within that evaluation, she found he met or exceeded minimum standards.  The pur­pose of periodic eval­u­ations is to give an unequivocal and timely assessment.  That purpose is defeated if a supervisor observes deficiencies, but keeps them a secret.  In that event, the employee reasonably can conclude that any concerns raised during the evaluation period were resolved and that any deficiencies are within acceptable bounds.  The employer’s burden then becomes to show either that the standards were changed with reasonable notice, or that the employee’s conduct deteriorated.  It is in this context that Grievant’s later service at VVHS must be assessed.

Without question, Grievant turned out to be a poor fit in the VVHS culture.  What stands out in the exhibits is mutual mistrust and suspicion in all directions.  On this record, the mistrust was fueled, at least in part, by the manner in which concerns were handled.  For example, it is unfortunate that Schar did not discuss with Grievant O’Neill’s inaccurate character­iza­tion of the 1988 sick leave dispute.  The failure to discuss O’Neill’s comments with him deprived him of the opportunity to correct the record.  ­Some evidence exists that other staff also had access to information of unknown accuracy about his record.  In any event, the cause of the mutual suspicion is of little moment.  In his long tenure with the District, Grievant had demon­strated that he had many valuable skills, which he had freely offered in the past.  His successful exper­ience in earlier teaching assignments, along with his acknowledged teaching abilities, suggest he was capable of being a positive and pro­ductive employee.  As a manager, Schar had a responsibility to encourage those positive qualities and respond effectively to his weaknesses.

Grievant started off on the wrong foot at VVHS, and remained a difficult personality.  Some of his colleagues disliked him and considered him a threat to their established practices.  On this record, their dis­com­fort became a license to fight with him.  Internal frictions were allowed to degenerate into petty bicker­ing and back-biting.

Schar eventually began responding to complaints against Grievant by either accepting the complaint at face value, without giving him an opportunity to respond, or by soliciting a written response and making a determination on paper, without ever bringing the disputants together to resolve discrepancies in their accounts.^[8]   By his second year, this practice had spread to student complaints, contrary to the usual practice described by Lezcano of getting the complaining student together with the teacher.  On the other hand, Schar made no response to his written reports of misconduct (e.g., lateness to meetings or lapses in rule enforce­ment by administrators and staff), thus making actual workplace standards unclear.  She also overlooked incivili­ties toward him, while ad­mon­ishing him for similar misconduct.  These policies together led to a downward spiral in the workplace atmosphere.

The disputants were also notable for their failure to acknowledge the foreseeable consequences of their actions, or to take remedial steps when those consequences materialized.  For example, Schar’s “find another district” crack was a counter-productive response to the perceived problem very early in the game.  To his credit, Grievant apologized for his response to that remark; on this record, Schar did not recip­rocate.

An ex­ample of Grievant’s corresponding blind spot was his persistence in signing in with both the office clock time and what he believed to be the actual time.  In few workplaces can employees define their schedules by their own views of the correct time, even if based on what they believe to be timepieces of superior accuracy.  Whether the school clock was accurate or not, it was the clock by which staff and stu­dents regulated their day.  He did comply with Schar’s directive to use the official school clock time, but protested by also ­­noting his view of the correct time.  For her part, Schar acquiesced in the con­tin­uation of this ­petty protest by simply noting his dual sign-in times during POA meetings rather than issuing a directive to use only the school clock.

Grievant’s colleagues exhibited similar denial of the obvious, both before and during the POA.  For example, Lezcano assertedly did not con­sider accusations of complicity in a student walk-out to be “that big a deal,” but nonetheless copied Schar with her accusations.  Indeed, even after realizing Grievant had been hurt by her accusations and “apol­o­giz­ing,” she reiterated and expanded the accusations to Schar, without notice to Grievant.  This suggests to the Arbitrator that Lezcano at least implicitly recognized those accusations were a “big deal” to Schar.  Numerous staff took complaints and rumors directly to Schar, thus making it unlikely that Grievant could attempt to respond cooperatively.  Given the atmosphere created by the incon­sis­tent and one-sided responses to complaints, it is unsurprising that staff vented their frustrations on a disliked and obviously disfavored colleague.  This venting did not arise out of a “conspiracy;” it was merely a common human response to a divisive situation.

THE CORRECTIVE ACTION

The POA, as designed and implemented, was an awkward tool for correcting the deficiencies Schar perceived.  Unless Schar took steps to encourage direct resolution of disputed incidents, continued hostilities and lapses in cooperation were almost inevitable.  Indeed, by continuing to “solicit feedback from staff” about Grievant’s progress, while failing to correct aggravating behavior by colleagues, Schar made him a target.  Moreover, the directive to Grievant to identify the strategies to use and the resources needed defeated the purpose of the POA.  The POA was based on perceptions that he had “poor human relations and com­munication skills.”  The “Maggie and Frank” episode underscored that he did not fully perceive the problem.  There was therefore little likelihood that he could identify the solution to that problem.  The appropriate focus would have been on his behavior, not his cognitive abilities.  The effective means of notifying him of the areas requiring change would have been to identify specific behaviors Schar wanted changed and estab­lish a timetable and a yardstick by which to measure whether he was progressing in changing those behaviors.  The POA did none of these things at the outset.  While Schar did identify particular behavioral issues as the year progressed, she did not identify strategies or measurable goals as to those issues.  More­over, to the extent that those behaviors were added to her expectations during the year, they gave Grievant only a moving target.  The POA therefore was not effective in either identifying deficiencies in a timely fashion or giving him a reasonable opportunity to correct those deficiencies.

THE SPECIFIC CHARGES

Turning to the three specific charges on which Grievant’s discharge was based, no evidence exists of insubordination as that term is commonly understood.  At no time did Grievant disobey a work order.  Assuming arguendo that the directive to develop strategies and identify resources for satisfying the POA was a bona fide work order, Schar did not repeat that directive after October.  It was therefore reasonable for Grievant to believe she had accepted Ventgen’s argument that the directive was improper, and that the directive was no longer in effect.  The other directives were global in nature, and thus raised ques­tions of either performance or conduct rather than insubordination.

The failure to make an effective response to complaints against Grievant has com­plicated the process of assessing whether the District has met its burden as to the remaining two charges against Grievant.  Those charges—neglect of duty and inadequate performance—both relate to all the issues listed by Schar at the con­clusion of the POA.  Those issues, in turn, can be divided into conduct issues (primarily tardiness and enforcement of school rules, with some elements of cooperation with peers) and performance issues (primarily cooperation with peers and maintaining currency in his field of teaching).

Looking first at the issues of tardiness and enforcement of rules, all witnesses who testified on the point agreed that teachers are late from time to time, and at times suffer lapses in enforcing school rules.  Schar, for example, did not deny that the instances documented by Grievant were actual instances of lateness or non-enforcement of rules by herself or others.  While there is documentation of specific instances in­volv­ing Grievant, the record is insufficient to permit an objective comparison of Grievant’s record on these mat­ters with those of his peers.  Further, evidence exists of inconsistency in enforcement of attendance re­quire­ments and application of school rules, as well as in recordation of lapses in these areas.  The record thus does not establish that Grievant’s performance on these matters was significantly worse than that of his col­leagues; it establishes only that he was under more scrutiny.  Therefore, it was arbitrary and unreasonable to conclude that his docu­mented lapses in attendance or enforcement of rules rose to the level of either neglect of duty or inadequate performance, and to discharge him on that basis.

Turning to the question of Grievant’s steps to update his knowledge and teaching strategies in math, it was reasonable to expect Grievant to brush up when his teaching assignment changed.  Schar did not dis­pute his report that he had taken steps in that direction; she simply would have preferred that he engage in other activities.  The activities he declined were voluntary; no evidence exists that Schar ever directed him to take specific steps that he thereafter failed to take.  The record does not permit an assessment of whether the alternative steps he took were sufficient, given his background, to bring him up to date in this area.  No evidence exists that his teaching demonstrated a lack of currency or inadequate teaching strategies in math.  Thus, whatever Schar’s preferences might have been regarding math summits, industry visits, or other specific activities, the record simply does not support the claim that Grievant’s decision not to use those specific means to update his skills constituted either neglect of duty or inadequate performance.  This charge there­fore does not support his discharge.

The final issue of effective communication and collaboration with colleagues is even more trouble­some.  Communication and collaboration are two-way streets.  As detailed above, the manner in which staff concerns over Grievant were handled put the entire responsibility of communicating and collaborating on him.  If a particular staff member blamed him for a problem without first talking to him, or accepted a student complaint about him without getting his side of the story or involving him in resolving the complaint, communication and cooperation were unlikely.  Unfortunately, the record is rife with examples of precisely that behavior.  While it was not unreasonable to expect Grievant to communicate professionally and collaborate, it was unreasonable to expect him to do it alone.  During the period in question, the standard of behavior at this workplace included personal attacks, airing differences in front of students, and other dysfunctional behaviors.   While the Arbitrator recognizes Grievant’s contribution to this atmosphere, she cannot ignore the contri­bution of the disparate response to his behavior.  That response isolated and stigmatized him, making a turn-about problematic.  Thus, in this context, his continued difficulties with communication and cooperation were not sufficiently beyond the standards of this workplace to constitute either neglect of duty or inadequate performance.  They therefore did not support this discharge.

Lest there be any doubt, the record demonstrates that Grievant requires direction in such matters as his attendance, enforcement of school rules, and interactions with peers.  That has been true since very early in his career.  Past administrators documented improvements in these areas in his evaluations; the record does not reflect the steps those administrators used to achieve those results.  His need for direc­tion resurfaced at VVHS.  If other measures did not suffice, a POA could have been a reasonable response to that need.  However, a necessary first step was to establish clear and consistent rules of behavior and measurable goals.

For all the above reasons, it is concluded that the District has not shown facts sufficient to establish that Grievant committed insubordination, neglect of duty, or inadequate performance.  It follows that his dismissal was not justified under those statutes.  As the statutory issue fully resolves this matter, it is un­necessary to consider whether the dismissal also violated the Agreement.  The question of the interpreta­tion of that Agreement, and its interaction with the statute, is best left to a case in which the outcome would differ depending on the standard applied.

In view of the above conclusions, the dismissal shall be rescinded.  Grievant shall be reinstated and made whole for any loss of earnings and other benefits occasioned by his dismissal, less interim earnings.  As agreed by the parties, the Arbitrator will retain jurisdiction over the remedy portion of this Award and any disputes arising there from.

                                                                       AWARD

1.         The Portland School District (the “District”) has not proved by true and substanti­ated facts that Jim Hanna committed insubordination, neglect of duty, or inadequate performance as those terms are used in ORS 342.865.

2.         Mr. Hanna’s dismissal was unreasonable, arbitrary, and clearly an excessive remedy under ORS 342.905. 

3.         It is unnecessary to consider whether the District violated Article 7A, 7B, 9A, or 9C of the collective bargaining agreement between the District and the Portland Association of Teachers (“PAT”).