The rules of evidence and employment and school investigations

A recent case  from the U.S. Court of Appeals for the Fifth Circuit gives a good lesson on how to document sexual harassment investigations. The lesson is also instructive on how a report can be used as evidence in all sorts of investigations in an education setting.

The case facts are not remarkable (the boorish behavior is seen repeatedly in sexual harassment cases). One employee uttered a number of improper comments, sometimes emphasized by physical gestures. Such actions ultimately lead to his termination. But before then, the employer investigated and interviewed a number of employees, all of whom confirmed the conduct in question, which lead employer to decide to fire employee. An appeal followed, a second investigation ensued and confirmed the first investigation and termination decision. Employee appealed to court.

Among other things, employee said the trial court was wrong to use the investigation reports, claiming they were hearsay evidence. Hearsay, under the rules of evidence, is an out of court statement used to prove the truth of the matter asserted and is not admissible. 

The court first held that employee statements to the investigators were not hearsay. Although it would appear otherwise, those statements fall into the too-often overlooked “not used to prove the truth of the matter asserted” part of the hearsay definition. In this case, the issue was not whether the conduct actually occurred; rather, the issue is the employer's reasons for terminating employee. “Because [the reports] were offered to prove what was said to [the investigators], and thus what [the investigators] relied on in making the decision to fire [employee], the statements were not offered to prove the truth of the matter asserted.”

Next, although the court found the reports themselves were hearsay, they were admissible under the business records exception of Rule 803(6). This exception sets forth criteria the reports must fit in order to be admitted as evidence notwithstanding hearsay. Among the criteria are that a report be made at or close to the events by a person with knowledge, kept in the regular course of business, and that making such reports is a regular business practice. Because the reports met the criteria, they were admissible as evidence, which ultimately lead to a decision in favor of the employer.

Bear in mind, and as the court notes, if reports are prepared in anticipation of litigation, they may not be admitted. But in matters of sexual harassment, employer policy will require such an investigation regardless of possible litigation. Beyond the employment setting where such processes are in place, education institutions may consider developing investigation practices for other matters, from parent complaints about special education implementation to investigations of security breaches and more. 

Of course, such practices should be developed with advice of counsel to weigh the pros and cons of such investigations and records.

Student transportation and constitutional rights

The case of Enright v. Springfield School District is a lesson in the important need for a quality program of training for bus drivers. The case resulted in a jury verdict upheld by the court against a school district and in favor of a seven year old student abused on a bus by older students. Liability against the school district was found because the school district did not train its driver and had policies and practices in place that made environment of the bus unsafe.

The school district owned and operated a bus that transported a 17-year old male student with emotional issues to an approved private school, a 14-year old male with learning disabilities to a private school, and a seven year old girl with Asperger’s syndrome to a private school. In short, the two boys engaged in sexualized conduct toward the girl that caused her significant trauma. Parents filed suit seeking relief via Section 1983 for violations of Section 504 of the Rehabilitation Act, the Americans With Disabilities Act, the IDEA, and Fourteenth Amendment due process rights.

When a government agency’s failure to train amounts to deliberate indifference to protected rights, the agency may be liable for resulting harm. In this case, among other things, the school district did not provide any training to bus drivers; did not provide bus drivers with information about the special needs of children on the bus; did not take steps to separate elementary and high school students, or require the bus driver to do so; and simply instructed its bus drivers to use their best judgment whether to report problems. 

In this case, a videotape of the day in question showed the bus driver did not maintain any control over the students or seek to intervene. According to the evidence, the inappropriate conduct, and thus the harm suffered, was the direct result of the school district’s failure to train the bus driver along with other school district policies, such as not creating and enforcing a code of conduct on its school buses (the 17-year old had a history of such misconduct, but no consequences). 

School districts need to give real attention to transportation issues. As noted by the court, creating and enforcing a code of conduct is a critical component of appropriate transportation. And of course, driver training must occur. Such training, however, should be well-planned and helpful (telling a driver to deal with it is not training). Not only should the training involve refresher information regarding the Department of Transportation manual, but also, among other things, include efforts to maintain a continuous loop of communication regarding student behavior and student needs and encouraging student-parent-driver-supervisor communication; identification of situations requiring expert intervention; information about various disabilities; methods of appropriate behavior control; and seating. Of course, this involves more than just the drivers, as it also depends on a comprehensive plan for transportation policies and the participation and recommendations of the many experts resources available to school districts, such as behavior experts.

Many school districts use independent contracted services in addition to or in place of district owned and operated buses. In such situations, school districts need to be sure their contracts properly protect it and its students (such as assurance of quality, insurance, and indemnification), while also balancing independent contractor rules.

Transporting thousands of students daily to many different destinations in itself is difficult and costly, and more so for special needs students. Moreover, students have little ability to protect themselves in the confines of a bus. Given this reality, a school district must take all reasonable and documented steps to assure that it is providing appropriate and safe transportation. And by all means, being sure that it is not making the situation worse.

No "core function" exception for Pennsylvania public CBA's

As 2007 came to an end, the Pennsylvania Supreme Court also put an end to the "core function" exception to labor arbitration decisions under the state’s Public Employee Relations Act. Westmoreland Inter. Unit No. 7 v. Westmoreland Inter. Unit No. 7 Classroom Ass’t Educ. Sup. Pers. Assoc. (majority opinion). The court did, however, find that a limited public policy exception can apply. But such public policy, said the court, “must be well-defined, dominant, and ascertained by reference to the laws and legal precedents and not from general considerations of supposed public interests.” 

The case involves finer legal points about how and to what degree courts are supposed to review labor arbitration decisions. But the facts are interesting, so we can start there.

The case involved a public school classroom aide who used a friend's Fentanyl patch while at work. The patch caused some significant adverse reactions that resulted in a school lock-down, police and EMS involvement, and subsequent hospital stay. The employer terminated the aide contending her use of the controlled substance was immoral conduct justifying termination. Significantly, in 23 years of employment with the school, this was her only adverse act.

The union filed a grievance on her behalf. Although the collective bargaining agreement (“CBA”) incorporated the Pennsylvania School Code’s immorality provision, the union alleged that the employer did not have “just cause” under the CBA to terminate her. The arbitrator agreed. He found the conduct to be foolish and irresponsible, but did not rise to the level of immorality and ordered her reinstated with certain conditions. 

The school appealed. The trial court reversed relying on the “core function” exception. Normally, judicial review of a labor arbitration decision is very limited (as said by the Pennsylvania Supreme Court, judges must respect the arbitrator’s decision if “the interpretation can in any rational way be derived from the [CBA], viewed in light of its language, its context, and any other indicia of the parties’ intention. . . .”). The court will usually simply decide whether the arbitrator’s decision is based on the essence of the CBA, the so-called essence test. If so, the decision is to be affirmed. Previously, as an exception to this standard, if the decision impacted on the employer’s core function and would deprive the employer of its ability to perform that core function, a court may change the decision. For example, the employer could not bargain away via the CBA the right to fire an employee who steals from the employer. In the Westmoreland case, the trial court found the arbitration decision adversely impacted the school’s core function of educating children.

On further appeal, the intermediate appellate court by a 2-to-1 vote affirmed the trial court, although the majority made further errors in the legal-technical issues about judicial review that lead to later criticism in the Pennsylvania Supreme Court. The dissenting judge would have reversed noting, first, the school did not prove its core function was impacted, and second, that using the core function exception risked swallowing the essence test (being the tail wagging the dog, so to say). 

The Pennsylvania Supreme Court first re-affirmed that the essence test is the appropriate means of reviewing labor arbitration decisions. This requires initial court review to assure the issue is properly subject to the CBA’s arbitration process, and second, deferential review of the arbitrator’s decision as noted above. Judges are not to review the substantive merits of the case and now, after the Westmoreland decision, the only exception to all this is the public policy exception.

The case suggests that an employer might be able to by-pass the CBA process by rejecting a grievance as non-arbitral as a matter of public policy (I think that conduct, which directly caused the lock-down described in the decision and the interruption to elementary students at the school, violates public policy).  The issue whether the conduct in question violated public policy would likely get presented to a court or administrative agency in the first instance, essentially giving a merits-review to the conduct in question. The court may agree or disagree. And while it is an interesting academic exercise for a Blog, the pros and cons of such a strategy need to worked out with counsel on a case-by-case basis in the real world.