The Federal Circuit Court of Appeals took the unusual step of overturning an arbitrator’s decision in a federal employee removal case, returning the case to the agency with instructions to reinstate a teacher fired for physically “repositioning” first-grade students in class. (Mayberry v. Department of Defense Dependents Schools Europe (CAFC No. 2012-3014, 1/7/13 nonprecedential)
According to the court’s decision, Mayberry taught at the Schweinfurt DOD Elementary School in Germany and enjoyed a considerable popularity among most parents and students. After 27 years of “unblemished” service, he was fired for a first time offense involving four first-graders. Mayberry admitted in the arbitration hearing that he had “repositioned” four “intransigent” students. He did not admit to child abuse, physical punishment or using physical force. What he said he did was take the children by the arms or shoulders and cause them to sit up in their chairs or in one case repositioned the child to a different seat. When one of the children complained to his parents they notified the principal who notified the Army Criminal Investigation Division (CID) and put Mayberry on administrative leave pending investigation. (Opinion pp. 1-5)
The CID interviewed the kids and learned that many liked their teacher although several said Mayberry had “grabbed,” “yanked,” “squeezed,” “shook,” or “hit” them when they were unruly. In the end the principal fired Mayberry for “inappropriate touching of students,” citing four “incidents of child discipline” as specifications. (p. 6)
Mayberry argued that the discipline was too severe given it was a first offense and that he had never been warned not to engage in the type of “repositioning” that he used in his classroom for troublemakers.
The lead first-grade accuser testified at Mayberry’s arbitration hearing that his teacher “hurt kids” and “picked me up by the arm and then slammed me on the floor…” and that he did not like Mr. Mayberry. The arbitrator found this testimony unreliable and gave it no weight in her decision. Apparently she did base her decision to uphold Mayberry’s firing on his admission that he did “reposition” children “as a last resort” by exerting enough force to cause them to sit up: “I find that physically moving or adjusting four children, three of them more than once, over a period of time warrants discharge even though this was the first time [his] behavior was brought to the attention of the administration.” (p. 8)
Interestingly, many people testified in support of Mayberry, including several parents, other teachers and a pediatric dentist, but they did not sway the arbitrator.
Mayberry took his case to court and managed to get the appeals court to throw out the arbitration decision and the removal action. While acknowledging that some offenses “warrant immediate discharge,” the court concluded that “repositioning several disruptive students, when they would not follow his instructions to sit in their chairs or stop talking” was simply not enough a first offense to add up to immediate firing. (p. 12) Instead, the school administrators should have put Mayberry on notice that his reported actions were not acceptable and would not be tolerated further. “We remand to the agency with instructions to withdraw the termination, and to provide sufficient instruction as to acceptable classroom discipline.” (p. 13)
We assume that the kids who testified against Mayberry will be assigned to another teacher?