[00:00:00] Speaker 02:
Number 15-3173, Federal Education Association versus Defense.

[00:00:05] Speaker 02:
Ms.

[00:00:06] Speaker 02:
Lee.

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Hi, my name is Dorothy Lee and I'm here representing both the fired employee Karen Gravis and the Federal Sector Employment Union, the Federal Education Association.

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We believe that Karen Gravis's case should be overturned

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for two very important reasons.

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One is an egregious due process violation done on the part by Dr. Frank Calvano, superintendent at the school system where she was employed.

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And in the decision process, we believe that the penalty that was selected for her was unreasonable and violated the Douglas Factors.

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With regard to Dr. Calvis's role, the mediator, or I'm sorry, the arbitrator,

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examined that at some length, didn't he?

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Yes, he did.

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And he assessed the question.

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And he concluded that that email, even if it preceded the events that were here to discuss, he concluded that on balance, there was no evidence that the deciding official, who he was not,

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had been influenced in any way by that.

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Are you, is it your position that A, he couldn't make that decision or B, that decision is simply wrong?

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Both.

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Is there such a finding?

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I didn't, maybe I'm mistaken.

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No, the only finding that I found is that he, the only finding that I believe he made was that he thought that Calvano was truthful.

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Now, he made a finding that he thought Calvano, well, that Kirkendall was independent.

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Yes.

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Yes.

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That's what we're... Yes, and that's the question.

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I take that as a decision that Kirkendall was not influenced by, he was independent.

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Yes.

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What could independent mean other than whatever Calvano's had to say wasn't important to him, or at least it didn't determine anything?

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Correct.

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And that's what we think is at issue here for the due process violation, because in Stone and Caperton, the question is, first of all, it's important to remember that Dr. Cavano's email, where he directed his two subordinates, who happened to be the proposing and deciding official, he directed them and stated, not a suggestion, he said, we need to terminate this person.

[00:02:49] Speaker 02:
I don't understand exactly what the email is saying.

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Calvano says, I think this is going to come back with a ruling of no foul.

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A ruling by whom?

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The family advocacy program people.

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In the Department of Defense dependent school system, what happens is when there is an allegation of any kind of abuse or inappropriate touching of students, it goes to family advocacy.

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for an independent investigation.

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And then they interview people, they look at the situation, and then they come back with an assessment, and he was casually saying they're not going to find anything.

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Well, what's the significance of the assessment that they make, the family advocacy or whatever it's called?

[00:03:37] Speaker 05:
Well, it's required by the school system's own procedures.

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Yeah, but what happens if they make a determination of no foul, what happens?

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What's the significance of that?

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They send that to the school system, and then the school system can use it, if they wish, to decide whether or not to discipline the person or to let it go.

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Well, now, at the point where that email was issued by him, were there charges against her at that point?

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No.

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No?

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No.

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So what is it that, what is he in, is there some investigation independent of

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of the petitioner in this case?

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The Family Advocacy Program.

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We just call it FAP for short.

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They do an investigation of whether or not there's, in essence, they call it institutional child abuse.

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And I think Dr. Cavana was stating that he didn't think it was institutional child abuse.

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And he was basically saying, hey, I don't think they're going to find anything, but I want her fine.

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What had triggered their investigation?

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Anything in particular?

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This was just a

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periodic investigation?

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No, no.

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Anytime we have a, again, these are agency regulations that basically say if you, any employee, see something that may be considered child abuse, you don't have to come to the conclusion that it's child abuse, but if you see a touching that you think is questionable, you report it to FAP.

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What had they seen?

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Did it relate to Ms.

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Gravis?

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Yes, it was Ms.

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Gravis's... It was the earlier events that had caused the initial, the earlier letter of reprimand, is that what we're referring to?

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No, this... It was a principal's report, correct, that triggered the FAP inquiry?

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Well, what happened was one of the aides told the principal, and the principal is required to report it to FAP.

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And that's what started the FAP inquiry?

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Yes.

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I have this question.

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To me, this is very central.

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This email that we're looking at and then the email that the principal replied in return where it says, we have two witnesses, a strongly support termination, those occurred before the arbitration but after the hearing that was given to the employee.

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Before the termination, you mean?

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Yeah.

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When did she receive

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these emails?

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Was it after the hearing on the termination or was it and before the arbitration?

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We did not get the email or the statements at the time where discipline was proposed.

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We did not have them at the time that we gave our oral and written response.

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We did not get knowledge of those things or copies of those things until the arbitration hearing when discovery was done.

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So at the point where it proceeded to arbitration, the decision to fire, what you're arbitrating is a decision of fire.

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Correct.

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And does this process afford the employee to respond to, for example, has she known of these emails prior to the arbitration?

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Is there a procedure or process where she could have replied to these emails?

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Oh, absolutely.

[00:07:04] Speaker 05:
We would have immediately requested that Dr. Calvano recuse himself and Mr. Kirkendall, Todd Kirkendall, that they recuse themselves as defying deciding officials because they're tainted by that email.

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Right.

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Okay.

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So when you say we were denied due process, you're not talking about the arbitration.

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You're talking about the process before arbitration.

[00:07:31] Speaker 05:
Absolutely.

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And the emails came in in between those two processes.

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Well, the email from Dr. Calvano preceded any decision.

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I mean, you weren't made aware of it.

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Correct.

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That's what I'm talking about.

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That is exactly what we are.

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That's what our argument is exactly.

[00:07:47] Speaker 02:
Well, no, that's not all your argument is.

[00:07:51] Speaker 02:
No.

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Even if they disclosed it to you, you would be saying there's a due process violation because

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that this exerted undue influence on the decision maker at the time he made the decision to terminate.

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Correct.

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I was only referring to the timeliness in the argument.

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The timeliness of this email, that it occurred at the very start, and in our opinion, it tainted everything that followed after that.

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And we were not provided with a copy of it until the arbitration.

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Therefore, we were prevented first from knowing about it, from making any arguments regarding it, from asking

[00:08:23] Speaker 05:
For the our response to go to someone not under the supervision of dr. Cavano we were denied all of these things So you weren't able to respond whether for example the dark the district superintendent has undue influence over the principal correct We could not respond to any of that.

[00:08:41] Speaker 05:
We were rather blindsided.

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We got this at the end I mean right before the arbitration dealt with it the best we could and we think the arbitrator was simply wrong in

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deciding that Dr. Kirkendall, he believed him to be trustworthy in his assessment that he wasn't influenced.

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The arbitrator made a point, and I'd like to know how you feel about it, the arbitrator made a point that the email from Calvinus mentioned two possible grounds, none of which were involved in the actual discipline decision.

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And the arbitrator

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took that as some evidence, I guess, that Kirkendall, it's not as if Calvano's had prejudged the actual issues that were before Kirkendall.

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That's the way the arbitrator looked at it.

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How do you view that?

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Well, I view that in exactly the opposite.

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I think when Dr. Calvano came, when Dr. Calvano wrote his email, he said, I want her fired.

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And he put forth what he wanted her fired for that would have, these were far more serious, two incidents of insubordination and physically harming a student would have been more likely to produce the result he wanted, which was removal.

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Now, the actual notice of proposal removal comes out of a separate office at Peachtree City.

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allege a lesser charge of inappropriate contact with a student.

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But I don't think that that had any effect on what was going on at Campbell.

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At Fort Campbell, with the proposing and deciding official, they were marching to Calvano's orders that she will be removed and she will be removed for two counts of insubordination and one count of bodily harm to a student.

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But that isn't what happened.

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Well, she was still removed, which was the end result.

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And the punishment selected for her removal was consistent with the charges that Dr. Calvano said in his email that he wanted.

[00:11:01] Speaker 03:
But ultimately, the removal was not based on corporal punishment and insubordination.

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Correct.

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Or, as the principal had suggested,

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that we could find the offense of insubordination causing bodily harm.

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Causing bodily harm and corporal punishment were not ultimately the basis for removal.

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Correct.

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The basis for removal was the inappropriate physical contact, correct?

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Is that actually a DODA charge that's recognized?

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No.

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That is not in their penalty.

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That's not in their penalties.

[00:11:41] Speaker 03:
However, the other one that... So how did the arbitrator determine that if it's not in the penalty and it's not a charge that can be brought, a formal charge, then how do they determine whether the punishment is appropriate to that charge?

[00:11:54] Speaker 05:
Well, I believe what the arbitrator said in that is that the agency has discretion to choose a penalty that they feel is consistent with what they're charging.

[00:12:05] Speaker 02:
Well, you're not arguing on appeal that the table doesn't support.

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the penalty for this charge, right?

[00:12:12] Speaker 05:
I'm sorry?

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You're not arguing on appeal that the charge doesn't support a penalty of termination, right?

[00:12:20] Speaker 05:
No, what we're arguing is that what the arbitrator did was misapply the Douglas Factors.

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He did not consider, not the arbitrator, the agency misapplied the Douglas Factors.

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They did not consider mediation, I mean mitigation, I'm sorry.

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And they considered as irrelevant things that were important.

[00:12:43] Speaker 03:
Go ahead.

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You address a lot of the merits where you're dealing with the arbitration.

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But isn't your case really that you never had the opportunity prior to the arbitration to deal with these issues, to actually address them at the process that's prior to the arbitration?

[00:13:05] Speaker 02:
Absolutely.

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And that's the due process you're talking about.

[00:13:09] Speaker 02:
Yes.

[00:13:09] Speaker 02:
No, it's not.

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That's not the whole argument, as I understand it.

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The argument is that even if it had been revealed to you, it would still be improper to have Mr. Kirkendall be the deciding official when he'd receive this email.

[00:13:23] Speaker 02:
No?

[00:13:25] Speaker 05:
Correct.

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I'm not sure that I personally understand the difference in the two that you're saying, because we do believe it's a due process that you should have.

[00:13:33] Speaker 02:
Well, the difference is there are two things going on here.

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One is that your client did not receive

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this email or knowledge of this email before the decision to terminate was made.

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He didn't receive it until the arbitration.

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That's correct.

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That's argument number one.

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Argument number two is even if you had received the email before the termination, it was still inappropriate for Kirkendall to be the deciding official when he had received this email from Kalbana.

[00:14:03] Speaker 02:
Correct?

[00:14:04] Speaker 05:
Correct.

[00:14:06] Speaker 05:
Correct.

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Who would be the deciding official in that case?

[00:14:10] Speaker 05:
Well, what we have done in other cases is when we do our response, and again, have we known about the email in the response, we would have asked that he recuse himself and have someone else be the deciding official.

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And that would have been a decision made by people above Dr. Calvano.

[00:14:31] Speaker 04:
It would have to be somebody from outside the system because

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everybody in the system knew of Calvonis' email, wouldn't it?

[00:14:41] Speaker 05:
Yes.

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It would have had to have been someone outside of the Kentucky School District, definitely.

[00:14:45] Speaker 04:
Let me ask you something about the merits.

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Can we get to the merits of the case?

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Let me put my question in a kind of personal context.

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When I was a little boy misbehaving in school,

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It was not uncommon for teachers to have a ruler and, you know, give you a little wrap.

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And, you know, that was life back then.

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When my children were in school at this age, or none of whom happened to be disabled, so I don't have that experience.

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But by that time, teachers were not allowed, if you will, to physically

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engage with the students.

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You couldn't wrap them across the knuckles.

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You could take them down or lead them down to the principal's office, but you weren't allowed to physically discipline them.

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Parents had to do that.

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I'm a little puzzled as to exactly what the environment of your school must have been with these disabled children.

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In this particular case, one child having tantrums and so on,

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Was it customary or was it understood that in some cases, an experienced teacher would have to physically touch the child?

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Was that never permitted, sometimes permitted, always permitted?

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How did that work in practice?

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Generally, they discourage touching children in general, but in a special education classroom, which this was, and it had

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non-verbally communicative students who can't handle their emotions, yes, they are allowed to touch the students.

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In fact, in many cases, they diaper the students.

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They feed the students.

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They touch them in various ways.

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Could they make the student have a time out, which was a favorite activity for my children?

[00:16:59] Speaker 04:
They would get time out.

[00:17:01] Speaker 04:
Could they require these

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children to have timeouts?

[00:17:04] Speaker 05:
Yes, they could.

[00:17:04] Speaker 04:
And if the child didn't want to participate in that, what were they to do?

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Well, in this particular case, she had tried timeout, and it had been unsuccessful.

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And this is where the situation here, the merits of the case, restraining is permitted in special education classrooms outside of DDes.

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But here, indeed, as they only want you to restrain the child in the event that they could hurt themselves or hurt others.

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So what she's accused of or what she did that they did not like was she attempted to restrain the child to get the child to calm down.

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And one of the two restraints that she did is in their CPI handbook about what a permissible way.

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She apparently had a history of

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that because sometime before this particular event she had been given a letter of reprimand for having physically restrained a child previously.

[00:18:10] Speaker 04:
Apparently there were some incidents even before that, is that correct?

[00:18:15] Speaker 05:
Yes, they had a new principal who had come from California who had a way of doing, a way of handling special education children that was not the norm at Knox.

[00:18:26] Speaker 05:
So there was basically an adjustment period where someone who came in from California had one idea of how these students should be handled and the norm that had been going on was slightly different.

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And what our letter of reprimand was for was simply helping two teachers carry a student, a normal, a regular, excuse me, a regular education student who was being

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who is not willing to go to the principal's office and throw on a temper tantrum, and they simply carried that child to the office.

[00:19:02] Speaker 05:
The problem with that kind of situation is you have to ask yourself, well, what do you do if the child won't go to the principal's office?

[00:19:11] Speaker 05:
Because everybody is responsible for other kids.

[00:19:14] Speaker 05:
They can't just leave the child there throwing the temper tantrum.

[00:19:17] Speaker 05:
So you're sort of in between a rock and a hard place.

[00:19:20] Speaker 05:
They chose to carry the child to the principal's office where he would be safe.

[00:19:24] Speaker 04:
And that was not, and that was... Well, she must have had a history of not conforming to the local norm.

[00:19:31] Speaker 04:
Is that what we're... No, no.

[00:19:33] Speaker 05:
The, um, the first, her first year as a special ed teacher, she worked for, um, Dr. Malin and he gave her a glowing performance evaluation.

[00:19:45] Speaker 05:
She,

[00:19:46] Speaker 02:
Well, she just disagreed with her new supervisor on how this should be handled.

[00:19:51] Speaker 02:
And the allegation and the finding is that she didn't accommodate herself to the new rules.

[00:19:58] Speaker 02:
And that's basically it.

[00:19:59] Speaker 02:
And on top of which, she appears not to have been candid about her testimony to the arbitrator as to what actually happened.

[00:20:09] Speaker 05:
Yes, she did butt heads with the new principal.

[00:20:14] Speaker 05:
But she was trying to comply with the new principal.

[00:20:16] Speaker 05:
And on the day, which was March 22nd when Dorian was having a meltdown all day long, she was complying with the wills of the principal.

[00:20:25] Speaker 05:
She didn't know what else to do.

[00:20:28] Speaker 05:
She called for the principal to come down and help her.

[00:20:33] Speaker 05:
Show me how you want it done.

[00:20:34] Speaker 05:
Come and teach me what you want.

[00:20:37] Speaker 05:
And even sent someone down to retrieve the principal.

[00:20:39] Speaker 05:
But the principal never came.

[00:20:41] Speaker 05:
which left her with the child and no guidance on what the principal would approve.

[00:20:47] Speaker 02:
You've got some findings of the arbitrator here to the contrary on this stuff.

[00:20:52] Speaker 02:
And you haven't said they're unsupported by substantial evidence.

[00:20:56] Speaker 02:
So for purposes of this, we have to accept them.

[00:21:00] Speaker 02:
We're way over our time.

[00:21:02] Speaker 02:
So we'll give you two minutes.

[00:21:03] Speaker 03:
Can I ask just one question?

[00:21:05] Speaker 03:
And this goes to one of the incidences of inappropriate touching.

[00:21:09] Speaker 03:
The record shows that.

[00:21:11] Speaker 03:
The child is involved in an exercise, I guess, of putting objects in boxes.

[00:21:18] Speaker 03:
And just for purposes of clarity, for my question, getting a blue object or a star and put it in this box.

[00:21:24] Speaker 03:
And the principal came in and the teacher had her hand.

[00:21:28] Speaker 03:
The child was, it looks like was putting the object in the wrong box.

[00:21:33] Speaker 03:
And the principal put, I mean the teacher put her hand on the child and directed him to the appropriate box.

[00:21:40] Speaker 03:
And that was deemed to have been an inappropriate touching?

[00:21:43] Speaker 05:
By the new principal, Dr. McClain, but not by the former principal, whom she had to hear before, by Dr. Malin.

[00:21:50] Speaker 05:
It is, with special needs children, sometimes they do need assistance in, if they're not, if they aren't verbal, sometimes you have to take their hand and show them what you want them to do.

[00:22:01] Speaker 05:
Show them that you're putting the blue bear in the bowl with the blue bears.

[00:22:06] Speaker 05:
You have to show them.

[00:22:07] Speaker 05:
And the only way to show them is to take their hand and move it.

[00:22:11] Speaker 05:
But you are correct.

[00:22:12] Speaker 05:
That was something that Dr. McLean objected to.

[00:22:15] Speaker 03:
And one last question.

[00:22:16] Speaker 03:
What is it exactly that you're seeking?

[00:22:19] Speaker 03:
What's the relief?

[00:22:19] Speaker 03:
If we were to find any favor, what would happen?

[00:22:23] Speaker 05:
Well, we would like to have the arbitrator's decision reversed.

[00:22:26] Speaker 03:
But that gets her job back?

[00:22:28] Speaker 05:
Yes.

[00:22:29] Speaker 03:
And back pay?

[00:22:30] Speaker 05:
Yes.

[00:22:31] Speaker 05:
Yes.

[00:22:32] Speaker 03:
Did she lose her retirement benefits and all that as a result of this?

[00:22:37] Speaker 05:
I could not.

[00:22:38] Speaker 05:
She would not, in my understanding, and I will say up front, I could be wrong on this, that she would retain her credit towards retirement that she had earned.

[00:22:48] Speaker 05:
But whether or not she's ever qualified to receive her retirement, I don't know.

[00:22:51] Speaker 01:
OK, thanks.

[00:22:53] Speaker 01:
OK, thank you.

[00:22:54] Speaker 01:
We'll give you two minutes for rebuttal.

[00:22:55] Speaker 05:
Thank you.

[00:22:56] Speaker 01:
Ms.

[00:22:56] Speaker 01:
Hogan?

[00:23:01] Speaker ?:
Thank you.

[00:23:02] Speaker 00:
Good morning, Your Honors.

[00:23:03] Speaker 00:
May it please the court?

[00:23:05] Speaker 02:
Let me tell you what the problem is, as I see it for you.

[00:23:08] Speaker 02:
I mean, in Supreme Court's decision in Loudermill, it says there has to be pre-deprivation, that is, pre-termination due process.

[00:23:15] Speaker 02:
Our Stone decision set forth some of the factors, page 1377 of that decision.

[00:23:22] Speaker 02:
And those factors seem to be applicable here.

[00:23:25] Speaker 02:
And I'm wondering whether you agree with that.

[00:23:31] Speaker 02:
It's merely cumulative information, while the email is not cumulative information.

[00:23:38] Speaker 02:
And whether the employee knew of the error and had a chance to respond, no, that didn't happen before the termination.

[00:23:45] Speaker 02:
And three, whether the ex-party communication was of a type likely to result in undue pressure.

[00:23:51] Speaker 02:
And you would think that a supervisor's statement to his subordinate that we have to terminate this person would fall into that category.

[00:23:58] Speaker 02:
Do you disagree with that assessment?

[00:24:01] Speaker 00:
I disagree for two reasons.

[00:24:03] Speaker 00:
First, the Stone Ward line of cases and what we require of pre-termination due process, constitutional due process.

[00:24:15] Speaker 00:
This court has been concerned with ex parte communications with a deciding official.

[00:24:20] Speaker 00:
Ex parte means, to me, there has to be a proceeding going on.

[00:24:26] Speaker 00:
And so communications between supervisors before any

[00:24:31] Speaker 00:
discipline is proposed does not meet the definition of an ex parte communication.

[00:24:36] Speaker 00:
It's not the same as the facts in Waterstone.

[00:24:38] Speaker 03:
Why is it that there's already the everything that we're dealing with today seems to me to have been in process when the superintendent wrote the email because he's referring to that process and that was our first questions that we had.

[00:24:52] Speaker 03:
It turns out that there's a FAP inquiry underway and that FAP inquiry is set off by the principal's report

[00:25:00] Speaker 03:
that deals with all the incidents we're talking about.

[00:25:04] Speaker 03:
So why would, OK.

[00:25:06] Speaker 00:
Yes.

[00:25:07] Speaker 00:
Thank you, Your Honor.

[00:25:08] Speaker 00:
So we have the situation on March 22nd.

[00:25:10] Speaker 00:
We have these two incidents where Ms.

[00:25:12] Speaker 00:
Gravis has inappropriate physical contact with this child.

[00:25:16] Speaker 00:
The principal is made aware of these incidents.

[00:25:20] Speaker 00:
And the principal is required to submit this report, child abuse, essentially a child abuse report to the family.

[00:25:28] Speaker 03:
Does the employee get a copy of that report?

[00:25:30] Speaker 03:
Or is aware of it?

[00:25:32] Speaker 00:
I'm not sure the answer to that question, Your Honor.

[00:25:34] Speaker 00:
But that is a completely separate, non-disciplinary process.

[00:25:38] Speaker 03:
Well, not really, because right there, in reference to that report, the superintendent says, fire her.

[00:25:47] Speaker 00:
So what happens, as the court can see, this is page 630, the email, the principal submits the report, as she's required to, and appropriately, I believe,

[00:25:57] Speaker 00:
sends a copy to her supervisor saying, this has happened in my school.

[00:26:01] Speaker 00:
I'm making you aware of it.

[00:26:02] Speaker 00:
I don't think there's anything wrong with that.

[00:26:04] Speaker 00:
And as one might imagine, the superintendent is upset about this.

[00:26:10] Speaker 00:
There's been very serious accusations about a child in their school.

[00:26:15] Speaker 00:
And there's sort of an immediate, off-the-cuff stand.

[00:26:17] Speaker 03:
But now he's going to hear.

[00:26:18] Speaker 03:
He's surprised.

[00:26:19] Speaker 03:
If there's serious allegations, the FAP inquiry, he thinks is going to come back.

[00:26:25] Speaker 03:
OK, I mean no foul.

[00:26:27] Speaker 03:
Correct.

[00:26:28] Speaker 03:
Then he goes on and says, irregardless of that, we, meaning me and you, you principal, me superintendent, we need to try to terminate her for corporal punishment and insubordination.

[00:26:40] Speaker 03:
So at that point in the proceeding, he's already made the decision.

[00:26:44] Speaker 03:
The superintendent has made the decision, let's fire her, and let's fire her for these reasons, corporal punishment and insubordination.

[00:26:53] Speaker 03:
So my question to you is,

[00:26:55] Speaker 03:
At what point prior to the arbitration did the teacher have the opportunity to address the charges that are being levied against her dealing with corporal punishment and insubordination?

[00:27:07] Speaker 00:
There were never any charges against her for those two.

[00:27:09] Speaker 00:
Those two charges were never levied against her.

[00:27:12] Speaker 03:
So there was no, I mean... Well, they weren't levied against her because I guess they were not supportable, but those were the reasons why she, at this point,

[00:27:22] Speaker 03:
The initial decision to fire her was based on these reasons.

[00:27:26] Speaker 03:
And right now, I guess my question doesn't have to deal so much whether these were actual accurate charges under the DOA, DA regs, but rather whether the employee ever had the opportunity to say, look, the reason you chose to fire me was for corporal punishment.

[00:27:49] Speaker 03:
She never had the opportunity to challenge that.

[00:27:52] Speaker 00:
She was able to make that argument at arbitration.

[00:27:55] Speaker 02:
Yeah, but the problem is the due process protection applies to the termination proceedings.

[00:28:03] Speaker 02:
Let me bring you back to the stone factors.

[00:28:05] Speaker 02:
You say one reason these factors are inapplicable here is because you think the proceeding hadn't started yet when the email was sent.

[00:28:13] Speaker 02:
What are the other reasons that these stone factors are inapplicable?

[00:28:18] Speaker 00:
The reason is that this is

[00:28:20] Speaker 00:
This just is not new and material evidence.

[00:28:22] Speaker 00:
When we compare this to, for example, Ward, where the evidence that the deciding official received during the time that the deciding official was making this decision was information about prior discipline that was not identified in the notice of proposed removal, and that the deciding official specifically took into consideration

[00:28:43] Speaker 00:
And the employee never had the opportunity to address whether.

[00:28:46] Speaker 02:
OK, so that sounds very much like the first argument.

[00:28:49] Speaker 02:
What other arguments do you have as to why these stone factors are inapplicable?

[00:28:56] Speaker 00:
I think those are my two reasons for why those are inapplicable.

[00:29:00] Speaker 00:
I think that also the arbitrator found that when the arbitrator looked at these factors, he was not convinced that this was a violation along the stone ward

[00:29:11] Speaker 00:
I mean, for example, the undue pressure issue.

[00:29:18] Speaker 00:
So, for example, the third factor, whether the communications were the type likely to result in undue pressure, the arbitrator heard very specific testimony that

[00:29:31] Speaker 00:
I'm sorry, Mr. Kirkendall?

[00:29:33] Speaker 02:
No, I didn't hear testimony about whether it was likely to cause undue pressure.

[00:29:37] Speaker 02:
What he heard was testimony that it did not, in this instance, cause undue pressure.

[00:29:45] Speaker 02:
And the stone test is not whether, in fact, the person acted as a result of undue pressure.

[00:29:53] Speaker 02:
The stone factor is it's likely to cause undue pressure.

[00:29:58] Speaker 02:
receiving this kind of email from your supervisor is likely to cause undue pressure, isn't it?

[00:30:04] Speaker 00:
No, I disagree.

[00:30:06] Speaker 00:
Again, for two reasons.

[00:30:07] Speaker 00:
First, if we look at the chronology, we have these two incidents involving the child that occur.

[00:30:14] Speaker 00:
Immediately the report is filed and the supervisors are made aware and there is, you know, we acknowledge an email that probably should not have been sent by Dr. Calvano.

[00:30:25] Speaker 00:
off the cuff, obviously upset about this.

[00:30:29] Speaker 00:
And then two weeks go by before the proposing official in coordination with the Labor Management Branch files the notice of removal.

[00:30:37] Speaker 02:
That's a hard road to how to say that you can have all the pressure you want as long as the notice of proposed removal hasn't yet been sent.

[00:30:44] Speaker 02:
That seems to me a very hard argument to make.

[00:30:47] Speaker 00:
Well, I also think that why it was appropriate for, and again, the Caperton case that

[00:30:55] Speaker 00:
petition or cite to, the Supreme Court says we have to look at the facts and the circumstances.

[00:31:01] Speaker 00:
And the facts and the circumstances here are that Dr. Calvano and Mr. Kirkendall had worked together for 10 years.

[00:31:07] Speaker 03:
They often disagreed about what appropriate... Let me direct your attention to, again, to the two emails.

[00:31:15] Speaker 03:
So the district superintendent says we need to... He's talking to the principal.

[00:31:21] Speaker 03:
We need to try to terminate her.

[00:31:23] Speaker 03:
The principal replies

[00:31:25] Speaker 03:
and says, I strongly support termination.

[00:31:29] Speaker 03:
It seems to me that that shows that the principal is agreeing with the district superintendent.

[00:31:38] Speaker 03:
The principal's not saying, you know, I believe termination is proper, I'm going to terminate it.

[00:31:46] Speaker 03:
He's replying directly to the district superintendent saying, I strongly support termination.

[00:31:52] Speaker 03:
I mean, that on its face shows

[00:31:54] Speaker 03:
influence that, in fact, the principal made the decision determining at the suggestion of the superintendent.

[00:32:05] Speaker 00:
I don't believe that's what the facts actually show.

[00:32:07] Speaker 03:
I just read you what the emails say.

[00:32:11] Speaker 00:
Right.

[00:32:12] Speaker 00:
And again, if you focus only on this email, that doesn't create the whole story.

[00:32:19] Speaker 00:
And we have

[00:32:20] Speaker 00:
what actually happened, the notice that was actually given, the opportunity to respond that was actually provided, the decision to remove her for inappropriate physical contact with the child that was actually made.

[00:32:31] Speaker 00:
And then we have testimony received by the arbitrator and the arbitrator's determination that these facts were supported and that Dr. McLean had serious concerns about her in light of continued.

[00:32:43] Speaker 02:
I mean, the fact that that seems to me what you're really arguing and put aside the order

[00:32:48] Speaker 02:
of the transactions here.

[00:32:52] Speaker 02:
What you're really arguing is that where there is testimony that the deciding official is not influenced and the arbitrator makes a finding that he acted independently, that that eliminates the due process problem.

[00:33:07] Speaker 02:
I think that's the heart of your argument.

[00:33:11] Speaker 02:
But I'm not sure that that is a defense because

[00:33:16] Speaker 02:
Stone says that there's no harmless error defense here.

[00:33:18] Speaker 00:
How do you square that with that statement?

[00:33:28] Speaker 00:
What Stone says is that if there's been a due process violation, it can't be cured by harmless error analysis.

[00:33:34] Speaker 00:
If the court were to find that this is a due process violation, this is going far beyond what this court has ever said in Stone or Ward

[00:33:45] Speaker 00:
And I would contend what the constitutional minimum is required.

[00:33:50] Speaker 04:
I suppose you could add in a response that the purpose behind the no influence rule is you don't want inferior officers ginning up

[00:34:08] Speaker 04:
ginning up excuses for carrying out the superior's desire to get rid of what the superior thinks may be a problem person.

[00:34:19] Speaker 04:
And so the question then arises, is there any evidence to suggest that this disciplinary occasion was ginned up?

[00:34:31] Speaker 04:
That is, what is the evidence to support the fact that these events actually occurred?

[00:34:38] Speaker 04:
And if they did occur, what is the evidence to suggest that the penalty in this case is unreasonable or not usual in this kind of a situation?

[00:34:54] Speaker 04:
The concern with influence is that people then create facts or circumstances that essentially trap the individual.

[00:35:07] Speaker 04:
You could make the argument that

[00:35:09] Speaker 04:
the evidence here in the testimony of the eyewitnesses, including the two junior assistants, was certainly not influenced in any way by Calvinus or even Kirkendall for that matter.

[00:35:23] Speaker 04:
So that this was clearly an independent event.

[00:35:28] Speaker 04:
And the question then is, is the penalty appropriate?

[00:35:31] Speaker 04:
Why is the penalty appropriate here?

[00:35:33] Speaker 04:
Why should she have been fired

[00:35:35] Speaker 04:
instead of given some sort of additional training or opportunity to correct herself?

[00:35:42] Speaker 00:
The penalty was appropriate because she did have prior discipline on the specific conduct.

[00:35:52] Speaker 00:
She had recently received training about when it's appropriate to physically restrain a child.

[00:35:58] Speaker 00:
And it was very serious conduct, conduct that could have opened

[00:36:03] Speaker 00:
that could have injured the child, conduct that could have opened the school district to litigation, conduct that no parent would have been happy to hear about.

[00:36:12] Speaker 00:
And it was clear that the principal's guidance and the guidance of Mr. Labriola, the specialist who focuses on this kind of training, hadn't helped.

[00:36:27] Speaker 00:
So there was no sense that rehabilitation was going to be

[00:36:33] Speaker 00:
And the fact that this particular charge isn't in the table of penalties doesn't matter.

[00:36:39] Speaker 00:
And the agency is not limited to the table of penalties.

[00:36:44] Speaker 00:
They can look to the table of penalties for guidance.

[00:36:47] Speaker 00:
But the charge was inappropriate physical contact with a child.

[00:36:52] Speaker 00:
There were two specifications.

[00:36:55] Speaker 00:
And that was, that was, Ms.

[00:36:59] Speaker 00:
Gravis was notified of that.

[00:37:00] Speaker 00:
She had the opportunity to respond to that.

[00:37:03] Speaker 04:
And she'd been in the system a long time and was a very experienced teacher.

[00:37:09] Speaker 00:
Well, she'd actually only been a teacher for about two years.

[00:37:11] Speaker 00:
She'd had significant previous experience working with special needs children in a more institutional environment.

[00:37:19] Speaker 00:
But she'd actually been a fairly recent teacher.

[00:37:23] Speaker 02:
A recent acquisition to this organization.

[00:37:25] Speaker 00:
Yes.

[00:37:26] Speaker 02:
Let me bring you back to the due process thing.

[00:37:28] Speaker 02:
Let's suppose in the course of a court litigation, a litigant

[00:37:32] Speaker 02:
sends an email to one of the judges and says, this case is really important to me.

[00:37:40] Speaker 02:
It's really important that you say this case affirmed the termination.

[00:37:46] Speaker 02:
And the judge doesn't disclose that.

[00:37:49] Speaker 02:
It's totally improper, right?

[00:37:50] Speaker 02:
And it'd have to be a recusal.

[00:37:51] Speaker 02:
And it would be reversible error.

[00:37:54] Speaker 00:
It would be inappropriate for probably two reasons.

[00:37:56] Speaker 00:
One, proceedings have actually been going on, and two,

[00:38:01] Speaker 00:
I assume there's probably some judicial ethics requirements.

[00:38:04] Speaker 00:
But I think that's a slightly different case.

[00:38:07] Speaker 02:
But that would require recusal.

[00:38:09] Speaker 02:
Under that hypothetical, right?

[00:38:10] Speaker 00:
Yes.

[00:38:11] Speaker 02:
And it wouldn't make any difference that the email had been sent before the appeal was taken.

[00:38:17] Speaker 02:
As long as the email said, you're about to get an appeal, and you've got to be sympathetic to us and affirm the termination.

[00:38:26] Speaker 02:
That would be improper, right?

[00:38:28] Speaker 00:
That would be improper.

[00:38:30] Speaker 02:
And it would require reversal of the decision, right?

[00:38:35] Speaker 00:
I'm not sure, in all likelihood anyway.

[00:38:38] Speaker 03:
Let me ask you this question, just following up on Judge Dyck's hypothetical.

[00:38:43] Speaker 03:
Suppose that the email is never disclosed, and we proceed with the hearing, and the appellant or whoever is unaware that the email came in, and the hearings are over, the hearing is held against her,

[00:38:58] Speaker 03:
Wouldn't you say that she was deprived of due process by not being told about the communication?

[00:39:05] Speaker 00:
No.

[00:39:07] Speaker 00:
Because again, I do not believe that the Constitution required that this email ever be disclosed to her, because it was not a piece of evidence relied upon by the deciding official.

[00:39:20] Speaker 02:
And because it took place- But in my hypothetical about the court situation,

[00:39:24] Speaker 02:
It wouldn't make any difference whether the email was relied on in reaching the decision.

[00:39:28] Speaker 02:
The very fact that it was sent is enough to make it an improper proceeding and require reversal, correct?

[00:39:36] Speaker 00:
Yes.

[00:39:36] Speaker 00:
I think the distinction would, and again, I think we have to look sort of real life here.

[00:39:41] Speaker 00:
The distinction is that the relationship between a litigant and the court is a very different relationship than supervisors,

[00:39:49] Speaker 02:
But it is a very different relationship.

[00:39:52] Speaker 02:
The supervisor has more influence over the deciding official in this case than in my hypothetical about the litigant in the court.

[00:40:00] Speaker 00:
Potentially.

[00:40:01] Speaker 00:
Although, again, I think the evidence here demonstrated that there was no influence.

[00:40:05] Speaker 04:
Did the government consider, once this email was revealed, did the government consider sending it back for rehearing with a different decision maker?

[00:40:18] Speaker 00:
I don't believe that was considered, just as a point of timeline here, that the email, again, the email was not disclosed prior to the removal.

[00:40:28] Speaker 00:
The email was obtained under federal labor laws.

[00:40:32] Speaker 00:
The union may ask for documents just as a matter of course.

[00:40:38] Speaker 00:
And so some four years after the removal, right before the arbitration began,

[00:40:45] Speaker 00:
there was a request for documents, and this was one of the documents that was produced.

[00:40:49] Speaker 00:
Quite frankly, I think most of the officials had kind of forgotten that it even existed.

[00:40:59] Speaker 04:
Let me ask the question a little bit differently.

[00:41:02] Speaker 04:
In response to a question from the court, your colleague said that if we reverse the arbitrator, she gets her job back and back pay and everything else.

[00:41:15] Speaker 04:
Could she be, this is not a criminal case, so there's no double jeopardy, could she be recharged with a different decision maker on the same charges if that's what the government chose to do?

[00:41:30] Speaker 00:
Absolutely.

[00:41:32] Speaker 00:
Yeah, there would be nothing to stop the agency from beginning a new procedure anew.

[00:41:41] Speaker 00:
on the same facts.

[00:41:42] Speaker 02:
Okay, thank you.

[00:41:44] Speaker 02:
Okay, thank you.

[00:41:45] Speaker 02:
Thank you, Your Honor.

[00:41:49] Speaker 05:
Unless you have any questions, I have nothing else to add.

[00:41:54] Speaker 02:
Okay.

[00:41:54] Speaker 02:
Well, I have no questions.

[00:41:56] Speaker 02:
Ms.

[00:41:57] Speaker 02:
Lee and Ms.

[00:41:57] Speaker 02:
Hogan, thank you very much.

[00:41:58] Speaker 02:
The case is submitted.