In the Matter of Arbitration Between Milton Area Education Association and Milton Area School District (Talarico 2022) (Arbitrator sustains discharge of teacher for inappropriate social media posts).

Background

Rebecca Krall was employed as a teacher by the Milton Area School District. Over a three-month period, Krall posted 13 videos to the social media platform, TikTok, of herself lip-syncing the lyrics to certain popular songs that included profanity, including one that was recorded while she was in her classroom. Among the songs in Krall’s videos were “Because I Got High” by Afroman and “WAP” (an acronym for a slang sexual phrase) by Cardi B. The latter song includes lyrics that reference “whores in the house,” describe oral sex and aggressive intercourse, and allude to drug and alcohol use. She utilized hashtags on her posts that incorporated profanity. One video included Krall stating, “you should give a f— but only about sh– that sets your soul on fire.” In others, she lip-synced several iterations of “bitch,” “bad bitch,” “I don’t give a sh–,” and “hot as “sh–.” There were references to explicit sexual subject matters such as “my man is so loyal he watches porn with no women in it” and “one thing every woman wants starts with a ‘P’ and ends with an ‘S’ – Pockets.” Some of the videos depicted alcohol or drug use and included hashtags such as #daydrinkingmoms, #nightdrinking, #areyoudrunk, #cheerstothat, and #wineme and displayed items commonly associated with drinking and glorifying alcohol consumption.

Krall maintained her TikTok account as a public profile, meaning that the content was available to the general public. Although TikTok has a privacy setting and child-lock settings, Krall allowed her profile and content to be public because she was marketing a nutritional supplement through the account. One of Krall’s students approached her during the lunch period, stated that he had viewed one of Krall’s videos, and referenced the content of that video to Krall. There was no evidence that Krall had communicated with her students about her account or that there was any disruption in her classroom.

The School District initiated proceedings to discharge Krall for persistent negligence, willful neglect of duties, immorality, and persistent failure to comply with the school laws. Krall grieved the proposed termination, asserting that she was being dismissed without just cause. The matter was processed to binding arbitration pursuant to the teachers’ collective bargaining agreement. Following an evidentiary hearing, the arbitrator denied Krall’s grievance and sustained her termination from employment.

Discussion

The arbitrator examined seven factors commonly used to analyze just cause: (1) was the employee adequately warned of the consequences of his conduct; (2) was the employer’s rule or order reasonably related to efficient and safe operations; (3) did management investigate before administering the discipline; (4) was the investigation fair and objective; (5) did the investigation produce substantial evidence or proof of guilt; (6) were the rules, orders, and penalties applied evenhandedly and without discrimination; and (7) was the penalty reasonably related to the seriousness of the offense and the past disciplinary record of the employee?

The arbitrator rejected the union’s argument that Krall did not have prior notice that this type of activity would constitute grounds for dismissal in consideration of the school district’s policies. These policies outlined the boundaries and expectations of professionalism and professional development provided to staff regarding appropriate use of social media platforms. The arbitrator noted the role of an educator “to provide a safe environment for learning and development, and that role is completely undermined by the same educator portraying, supporting, and glorifying scenes of graphic excess.” That only one of Krall’s students apparently had viewed her social media posts was not considered by the arbitrator as dispositive since the posts were made with the express objective of the messages reaching the general public.

The arbitrator found that the severity of discipline – termination – was appropriate because “[t]he misconduct in this case was severe and irreparable.” The arbitrator concluded by stating that “if an educator chooses to maintain a separate personal identity on social media that conveys a message so grossly at odds with the educator’s professional responsibilities, it is incumbent on the educator to make sure there is a stout firewall of separation between the two. That is not what happened here.” Accordingly, the grievance was denied.  

Practical Advice

The outcome of this arbitration contrasts with a similar matter reported in our Winter 2023 edition of the Education Law Report in Central Valley School District v. Central Valley Education Association, 2022 Pa.Commw. Unpub. LEXIS 482 (Pa.Commw.Ct. November 7, 2022). In the Central Valley matter, the school district sought to discharge a teacher for recording a video featuring a song containing explicit lyrics, including words referencing a sexual act and suggestive hand and body motions, that her daughter posted to her TikTok account. The arbitrator reinstated the teacher to her position reasoning, in part, that there was no evidence that the video was widely disseminated.

The primary distinguishing circumstance between the teachers’ conduct in Central Valley and Milton Area was the persistency of the teacher’s misconduct – posting thirteen inappropriate videos over a three-month period – in contrast with the single video post involved in Central Valley. Another exacerbating factor was that, in Milton Area, Krall utilized her TikTok account to promote a nutritional supplement, indicative of an intent of having her posts viewed by a wide, public audience. Thus, although both cases involved indisputably inappropriate and unprofessional social media posts by teachers, the disparate fact patterns explain the different outcomes.