PENNSYLVANIA RECORD

A case with a long history involving a school aide who was fired for overdosing on a

Fentanyl patch while at work, but later reinstated to her position by an arbitrator, appears to have finally come to a close after a Pennsylvania Commonwealth Court panel ruled that the woman’s termination could stand.

The appeals panel got the case on remand from the Pennsylvania Supreme Court for reconsideration in light of the outcome of another case involving public policy.

The plaintiff, Sherie Vrable, had been a two-decade employee with the Westmoreland Intermediate Unit when she was found unconscious in the school’s restroom in early 2002 after overdosing on the pain patch.

Vrable, who was working with students in grades three through five at the time, had not obtained the Fentanyl patch from a physician; it was given to her by a friend.

Early evidence in the case established that Vrable wore the patch because it was a “temptation,” according to background information contained in the Commonwealth Court memorandum.

In September of that year, the Intermediate Unit informed Vrable her employment was being terminated due to her possession of a controlled substance, not prescribed to her, in the workplace.

The woman subsequently filed a grievance over her firing, and an arbitrator soon found that the employer lacked just cause to fire Vrable, stating that the plaintiff’s conduct didn’t rise to the level of “immorality” under the Public School Code, the record shows.

The arbitrator essentially determined that Vrable had an “unblemished” 23-year tenure with the Intermediate Unit, and that this “single error of judgment did not amount to such a grievous offense that it would offend the morals of the community,” according to the Commonwealth Court’s memorandum.

A Westmoreland Court of Common Pleas judge, however, vacated the arbitrator’s award in the summer of 2004, determining that it fell within the “core functions” exception to the essence test because Vrable’s use of a controlled substance while caring for children directly affected the employer’s ability to perform its function of providing a safe environment for students.

Vrable’s union then appealed the trial court’s ruling.

A Commonwealth Court panel previously upheld the trial court’s decision, ruling the Intermediate Unit satisfied the elements necessary to establish the offense of immorality as defined in the School Code, the record shows.

The Supreme Court subsequently granted the union’s petition for allowance of appeal to review whether the “core functions” exception was inconsistent with the essence test, and after hearing the case, the justices deemed the exception “insufficiently precise,” replacing it with the public policy exception.

The high court then remanded the case to the trial court to apply the newly recognized “public policy” exception, after which the trial court held that the arbitrator’s reinstatement decision didn’t violate the “well-defined dominant public policy of protecting children in school from the dangers of illicit drugs and drug abuse,” the latest Commonwealth Court ruling shows.

Commonwealth Court initially reversed the trial court’s decision, concluding that Vrable’s immediate reinstatement to the classroom while she attempted drug and alcohol rehabilitation violated public policy.

Last summer, however, the Supreme Court vacated the Commonwealth Court’s prior order, remanding the case back to the lower appellate court for reconsideration based on the outcome of a case involving the Philadelphia Housing Authority and its employees’ union arising from the firing of a worker accused of sexual harassment.

In that case, the high court found that the arbitrator’s award offering the PHA worker his job back “betray[ed] a lack of appreciation for the dominant public policy.”

The justices found that a public employer “must be able to do more than engage in adjectival condemnation when faced with this sort of employee misconduct.”

That decision has led the Commonwealth Court to uphold the firing of Vrable in her case with the Westmoreland Intermediate Unit, with the judges writing that the “public policy of educating our children about the dangers of illicit drugs and drug abuse and protecting children from exposure to drugs and drug abuse is compelling.”

“As Employer points out, to reinstate an employee who attended work while under the influence, while charged with the duty of overseeing young children, with the hope that she will overcome her addiction, defies logic and violates public policy,” the Commonwealth Court ruling states. “Simply put, an elementary classroom is no place for a recovering addict.”

The judges went on to write that the arbitrator’s award demonstrated a “tolerance, rather than intolerance for illicit drug use, and is direct contravention of public policy.

Vrable’s “immediate reinstatement to the classroom while she attempted rehabilitation ‘eviscerated’ Employer’s ability to enforce this dominant public policy,” the court wrote.

Commonwealth Court Judge Bernard McGinley wrote the opinion.

Judge Patricia A. McCullough and Senior Judge Rochelle S. Friedman participated in the appeal.

Friedman, however, penned a dissenting opinion in which she stated her belief that the arbitrator’s award in the Vrable case didn’t violate public policy as per the Supreme Court’s decision in the PHA case.

“Here, the issue is not whether [Vrable’s] conduct of wearing a Fentanyl patch not prescribed to her violates public policy, but whether the award reinstating [Vrable] violates public policy,” Friedman wrote. “I agree with the majority that protecting our children from the dangers of drugs is a dominant public policy. I disagree with the majority’s determination, however, that the Arbitrator’s award contravenes the public policy of protecting our children from the dangers of drugs.”

Friedman said the facts of the Vrable case differ from PHA because in the latter, the former worker was fired for committing multiple acts of sexual harassment.

“In this case,” Friedman wrote, Vrable committed a “single error in judgment, not multiple egregious acts.”

Friedman said she would conclude that the arbitrator’s award, which conditionally reinstated “a one-time offender while imposing numerous safeguards, does not violate this public policy. Rather, the Arbitrator’s award is designed to punish [Vrable] and ensure the continued protection of our children.”