In a recent decision regarding a termination case brought by a former professional employee, the Pennsylvania Secretary of Education issued an Opinion upholding the dismissal of the professional employee, Hugo Prieto, from his employment as a teacher in the School District of Philadelphia. Mr. Prieto was terminated from employment with the School District on the basis of intemperance. A review of the Secretary’s decisions shows that the case law on this topic is relatively sparse.
Facts of the Case
The facts of the case were fairly straight forward. In December of 2018, an incident occurred in Mr. Prieto’s classroom during which students who did not belong in his classroom fought with other students. Those students refused to leave the classroom after Mr. Prieto directed them to do so. Subsequently, Mr. Prieto called the main office to seek assistance in removing the students from his classroom. The school’s assistant principal heard Mr. Prieto’s call for assistance and proceeded to go to his classroom and usher out the students. As the students were leaving, Mr. Prieto became angry, picked up a textbook from the floor and threw it at one of the students who was exiting the room, hitting the student in the lower back near his waistline. After that, the student became agitated and shouted an expletive at Mr. Prieto.
The assistant principal stepped between the student and Mr. Prieto in an attempt to get the student to calm down, however the student attempted to get past the assistant principal to fight Mr. Prieto. The assistant principal continued to attempt to restrain the student and directed Mr. Prieto to leave his classroom. Mr. Prieto could have done so through either of the classroom’s two doors without passing the student. However, Mr. Prieto did not leave the classroom. The student was able to pull away from the assistant principal and confront Mr. Prieto after which the two individuals began to exchange punches. The assistant principal was then able to get between the student and Mr. Prieto and again ordered Mr. Prieto to leave the room several times. Mr. Prieto then walked slowly toward the door at the front of the classroom only after being directed to do so by the assistant principal.
Once again, the student broke free from the assistant principal and confronted Mr. Prieto in front of the classroom. Mr. Prieto then put his hands up and assumed an offensive fighting stance. He and the student once again exchanged punches. This was recorded on a student’s cell phone. According to the Department of Education’s decision, the cell phone video showed the student throwing punches at Mr. Prieto and also showed Mr. Prieto throwing punches at the student as the student retreated backwards. The video further proved that Mr. Prieto threw punches and acted in an offensive manner rather than allowing the fight to end. The assistant principal and another student were then able to step between the two combatants and the assistant principal repeatedly ordered Mr. Prieto to leave the room, which he eventually did.
In affirming the decision of the School District of Philadelphia to terminate Mr. Prieto, the Secretary of Education found that Mr. Preito’s conduct rose to the level of intemperance as that term is contemplated in Section 1122 of the Pennsylvania Public School Code. In his defense, Mr. Prieto stated that grounds for his termination did not exist because he was attempting to defend himself and, as such, his actions could not constitute intemperance. The Secretary of Education disagreed, finding that it was Mr. Prieto’s initial act of anger and frustration, specifically, throwing the textbook at one of the students that precipitated the physical confrontation. Additionally, the Secretary noted that Mr. Prieto continued to attempt to escalate the altercation rather than de-escalate the same. The Secretary noted that such actions were not those of someone simply defending themself and that it was Mr. Prieto’s own anger and lack of self-control that caused the melee that ensued in his classroom.
Although it may seem self-evident that a singular instance of a teacher using physical force with a student would justify that teacher’s termination from employment, Courts of this Commonwealth have not always found that to be the case. In Rose Tree Media Secretaries & Educational Support Personnel Association-ESA, PSEA-NEA v. Rose Tree Media School District, 136 A.3d 1069 (Pa. Commw. 2016), the Commonwealth Court upheld an arbitration award sustaining the grievance of a special education aide who was terminated after she drug a child from the hallway to the student’s desk, a distance of over twenty feet. In that decision, an arbitrator found that the school district did not have just cause to terminate the aide’s employment and found that certain factors (such as an unblemished work record and the aide’s remorse) mitigated against the aide’s termination. It is important to note that the Prieto decision is something of an anomaly. The vast majority of teacher termination cases are decided by arbitrators who must determine whether or not a school district had “just cause” to terminate the teacher. Factors in determining the existence of just cause include the existence of a policy against the alleged conduct, the employee’s knowledge of the policy and the penalties which could result from a violation of the same, the scope of the employer’s investigation, and the uniformity of punishment. Accordingly, although it seems axiomatic that a teacher who assaults a student would be subject to immediate termination, it is important for the District to ensure that it has fully investigated any misconduct and built a strong case for dismissal.
Decisions discussing dismissal of a professional employee on the grounds of intemperance are somewhat rare in Pennsylvania and it is important to take note of what the Secretary of Education found in determining that the teacher’s conduct constituted intemperance. Despite the fact that the teacher claimed self-defense in this case, the controlling factor seemed to be the teacher’s initial instigation of the conflict and subsequent attempts to continue fighting the student that caused the Secretary to find that the teacher’s behavior was intemperate. In similar circumstances, claims of self-defense by professional employees need to be reviewed carefully to see if the employee was the initial aggressor. If so, it is highly likely that a school district will be able to sustain a termination based on intemperance under Section 1122 of the Pennsylvania Public School Code. In addition, should the matter proceed to an arbitration, the school district should be prepared to cite to clearly established policies prohibiting the challenged conduct and, preferably, introduce evidence showing that the teacher was aware of the policies. It is further recommended, as a matter of best practices, that teachers are periodically reminded of the district’s policies and regulations regarding appropriate responses to student misbehavior.