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In the Matter of the Arbitration Hearing of Ryan Haraughty

___________________________________________________________________________

ARBITRATOR: Christine Ver Ploeg

DATE AND PLACE OF HEARING: May 3, 4, 5, 2010

USD 152
Overland Park, Kansas

DATE OF RECEIPT OF FINAL POST-HEARING BRIEFS: June 21, 2010

DATE OF AWARD: July 5, 2010

ADVOCATES
For the Teacher
Scott Long
Long & Luder
9401 Indian Creek Parkway #800
Overland Park, KS 66210

For the District

Curtis Tideman
Lathrop & Gage
10851 Mastin Blvd. # 1000
Overland Park, KS 66210

Ryan Haraughty, Grievant

ISSUE:

Did the District have just cause to discharge teacher Ryan Haraughty? If not, what shall be
the remedy?
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INTRODUCTION

This case has been brought by a teacher, Mr. Ryan Haraughty, who is challenging his
discharge by the Shawnee Mission Unified School District, USD 512 (“District”). Prior to his
discharge on November 10, 2009, Mr. Haraughty was a science teacher in Mission Valley Middle
School. By many accounts he was an effective and popular teacher.
This Arbitration stems from the District’s discharge of the Grievant for his alleged sexual
banter with students and for his alleged insubordination to his school principal. The November 9,
2009, Board Resolution which authorized this discharge, and the subsequent notice sent to Mr.
Haraughty, set forth the following bases for taking this action:

- repeated use of sexual innuendo and sexual banter in the presence of students

- creating and permitting a sexually hostile environment at school

- violation of Board Policy GBEBB ("inappropriate behavior" and "interaction of a

sexual nature”)

- violation of Board Policy JBA (verbal conduct of a sexual nature)

- insubordination

Mr. Haraughty has had the option to challenge the District’s action pursuant to either
Kansas law, KSA 72-5438, or Article VII Grievance Procedure of the current collective
bargaining agreement between Shawnee Mission U.S.D. #512 and The National Education
Association of Shawnee Mission, Inc. Mr. Haraughty elected to challenge his discharge pursuant
to the Agreement, and that is what has now brought the parties to this arbitration.
The issue at hand is whether the District had just cause to discharge Mr. Haraughty.
(Article V, Section G, Subsection 1.) Although the term “just cause” is not defined in the
collective bargaining agreement, Kansas case law has interpreted the term “good cause” in cases
involving the termination of a tenured teacher’s contract. The parties agree that interpretation
applies to the “just cause” standard in this case. Under Kansas case law “good cause” requires
substantial evidence that any of the grounds put forward by the school district were made in good
faith and were not arbitrary, irrational, unreasonable, or irrelevant to the District’s task of
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building up and maintaining an efficient school system. See Unified School District No. 434,
Osage County v. Hubbard, 19 Kan.App.2d 323, 326, 868 P.2d 1240 (1994).
Mr. Haraughty submits that his discharge was without “just cause;” the District submits
that it was. Mr. Haraughty filed a timely grievance protesting the District’s action and the parties
were unable to resolve their differences concerning this matter in earlier steps of the grievance
process. They have agreed that this dispute is now properly before this arbitrator for resolution.
The parties and the arbitrator met for a public hearing on this matter on May 3, 4, 5, 2010, at
which time the parties agreed that the witnesses would be sequestered. The parties also
submitted pre-hearing and post-hearing briefs, the last of which was received on June 21. At that
time the record was closed.

BACKGROUND
In this case the District has had the burden of proving that it had just cause to discharge
Mr. Haraughty. In determining whether the District has met that burden, the following
undisputed evidence has been relevant.
This evidence is set forth in considerable detail, given the extensive publicity that has
surrounded Mr. Haraughty’s discharge and the attendant allegations that have been raised against
District personnel.

1. Prior Discipline
In August of 1999 the District hired Mr. Haraughty as a fulltime teacher, and throughout
his tenure with the District he taught science at Mission Valley Middle School. By many
accounts he was an effective and popular teacher. However, Mr. Haraughty’s tenure was not
without its problems; the record reveals that he was issued discipline prior to the events which led
to this discharge. Although Mr. Haraughty argues that this evidence should not now be
considered (an argument discussed later in this award), the following prior discipline does remain
relevant:
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December 12, 2000, First Written Reprimand

On December 12, 2000, Mr. Haraughty’s former principal, Charlotte Sands, issued the
following written reprimand to him:
Approximately six weeks ago, I met with you to discuss concerns of three female
students regarding inappropriate comments. These comments were:

 Using the word testicle instead of tentacle

 Calling a girl skank and immediately apologizing
 Referring to a naked pinecone — Gymnosperm translates to naked seed.
 Referring to behavior as being PMSing
 Commenting that King Phillip came over for great sex — mnemonic device
 Commenting on mating of birds when irrelevant to lesson — Appropriate to
classification and how we classify.

These three students indicate on December 7, 2000 that they have not heard any
further inappropriate comments since we met on the above.

Nevertheless, on December 6, 2000 it was reported to me that there are still

situations of inappropriate comments. The comments we discussed on December 7
were that:

1) Girls need to keep their cleavage covered. I suggested telling them to put
additional clothing on or having a female staff member tell them.
2) Breasts would float on the Dead Sea because they're full of fat.
3) While grading a paper you begin to laugh. The class asked why you were
laughing. You shared that a student had written `penis' versus `pen is'.
4) A female student takes coat off and says "I'm so hot" and you comment "Oh
don't be so conceited". A boy next to this student says to her "he's talking about
your breasts".
5) Earlier in the year, prior to our discussion, you commented that you didn't
bring your puppy to school because you didn't want it humping your leg".

You agreed that these comments would stop. These kinds of comments are not
conducive to a positive learning environment and are in violation of the Shawnee
Mission Board of Education policy (JBA).

This kind of behavior will not be tolerated and will result in disciplinary
action up to and including termination of your contract with the Shawnee
Mission School District.

This written reprimand is especially relevant for two reasons. First, Mr. Haraughty has
unwaveringly protested that his discharge stems from personal animus on the part of his current
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principal, Susie Ostmeyer, who has been “out to get” him. However, it was Principal Sands who
issued this 2000 written reprimand, as well as two subsequent written reprimands. Mr. Haraughty
has testified that he has always had a great deal of respect for Principal Sands (now retired), and
that she was not out to get him. Second, this reprimand is relevant in that it raises the same
concerns which now form a portion of the bases for Mr. Haraughty’s discharge.

May 28, 2001, Second Written Reprimand

On May 28, 2001, Principal Sands issued a second letter of reprimand to Mr. Haraughty
for having “grabbed a student by her arm in a discipline situation,” in violation of the District’s
policy against corporal punishment.

November 3, 2002, Third Written Reprimand

On November 3, 2002, Principal Sands issued a third written reprimand to Mr. Haraughty,
this time for humiliating a student by showing in class a slide of the student sleeping and related
slides. On this occasion Principal Sands admonished Mr. Haraughty that
This is the third written reprimand since your employment in 1999.
Although the reprimands have been of different concerns, three are
significant.

I want to clearly state that further acts of this behavior will result in
disciplinary action up to and including termination of your contract with the
Shawnee Mission School District.

. May 8, 2006, Fourth Written Reprimand

When Principal Sands retired, Susie Ostmeyer became principal of Mission Valley
Middle School. On April 23, 2006, Principal Ostmeyer forwarded the following
“Recommendation for Disciplinary Action” to Mr. Bob DiPierro, Deputy Superintendent of
Operations, who issued a written reprimand based upon that report:

A recommendation for discipline is being forwarded to the Deputy Superintendent

for the inappropriate comment you made during class about penis size. The reason
for Deputy Superintendent review is due to the compilation of discipline in your
personnel file. In addition to this incident, you have received three letters of
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reprimand since your employment in 1999. Your letters of reprimand document

error in judgment when interacting with middle school students.

On April 13, we met to discuss a parent concern about a joke you made in class. The
parent stated that her child reported that you had gestured with your fingers to
represent three inches and used a punch line that made a connection to women being
told all of their lives that this was six inches. During our conversation, you
confirmed that the parent's report was accurate. You had been teaching components
of the sex education curriculum when you made the joke about how males measure
inches as it relates to their physical anatomy.

During our conversation, I verbalized my concerns:

 The joke is inappropriate for our educational setting.
 The joke is inappropriate for middle school students.
 The delivery of this joke demonstrated a lack of understanding of current
community concerns as they relate to sex education curriculum.
.
You presented yourself as regretful and apologetic during our conversation and
expressed your willingness to respond to this parent in person and apologize. You
concluded by stating that you would try to do better.

In closing our conversation I inquired as to whether your personnel file would

document concerns of this type. You told me that it would hold evidence of
disciplinary action.

Previously, Ms. Sands, former Mission Valley principal, and you had discussed
concerns in which similar errors in judgment are documented. Three (3) letters of
reprimand exist in your file:

November, 2002: Humiliating a Child

May, 2001: Corporal Punishment
December, 2000: Inappropriate Comments/Sexual Content

I am recommending that Bob DiPierro, the Deputy Superintendent of Operations,

review this issue and determine the appropriate disciplinary action. See the teacher
agreement, Section K-Discipline. You will be notified by his office of a meeting to
be held to review this situation. You may bring a representative if you choose to do
so.

This written reprimand is especially relevant in that it raises the same concerns which
formed a portion of the bases for Mr. Haraughty’s discharge.

February 27, 2008, One day suspension

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On February 8, 2008, Principal Ostmeyer prepared another “Recommendation for

Disciplinary Action,” this time concerning Mr. Haraughty’s refusal to distribute the school’s
literary magazine in his class. This refusal resulted in the issuance of a one-day suspension, and
again Mr. Haraughty was formally advised that “Any further concern involving your behavior
will result in further disciplinary action up to and including termination.”

2. Parent complaint and subsequent investigation

On Saturday, October 3, 2009, the parent of a Mission Valley Middle School student sent
an email to Principal Ostmeyer, with copies to the Building Coordinator, the Superintendent of
Schools, and two members of the Board of Education. That email raised several concerns, i two
of which were quite serious and resulted in follow-up investigations. The first issue addressed a
student inspired “sexual harassment week” and the second involved allegations against a “science
teacher,” later identified as Mr. Haraughty.
The concern about “sexual harassment week” was stated as follows:
I am very distressed to write to you today about an "event”
propagated by the students of Mission Valley called "SH Week".
You may be aware of it, but if you are there is not enough being
done to address it, and if you are unaware, it's time you knew.
Apparently, this event also occurred last year, but was not brought
to my attention until yesterday. Here's how it works:

Each day, the kids with phones have been receiving texts indicating
that the next day is a day to purposely attempt to grope people of the
opposite sex in the hallways at school. For instance, one day was
"boob tap" day, another was "ass grab" day, another was "ball tap"

i The parent also complained that “In general, I find the personal freedoms at Mission Valley
extraordinarily restricted- for instance my daughter must carry her books individually, bruising her arms
on their sharp corners, because she is not allowed to carry a book bag. She indicates that random locker
checks are a regular occurrence. She is not allowed to go to her locker before class, at least until a few
minutes before the class begins. Therefore, I know that you have policies in place which attempt to gain
some control over weapons and drugs.”

These concerns were only incidentally addressed in this hearing and do not appear to have warranted
further action.
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day, and Friday was "free for all". (Sorry for the verbatim language,
but I think you need to understand the attitude that is being purveyed
by the students). By the time I discovered this, my student had erased
all of the messages from her phone, but she forwarded one to me
today: "Screw this lets turn it into a sexual harassment year! Send 2
everybody sept 4 snitches <Aww hell naw><Aww hell naw>".

In addition, the parent expressed concern that

When I asked my student why she didn't speak up sooner, she said
that she didn't feel the teachers or staff would do anything about it,
that she didn't want to be a snitch, and that it hadn't affected her
personally…However, she has also mentioned that her science
teacher, who will be teaching the Health and Human Relationships
section later in the year, has made inappropriate comments before
(see quote below *), and so she feels that this behavior is tolerated by
the school. That breaks my heart.

The “quote” stated as follows:

* On the first day of school, one of the students introduced herself to the
Science teacher, who commented that he had her sister in a previous class.
"You look just like her," the teacher quipped, "except that she had boobs." I
realize that his attempt at humor is a way that he connects with the class, but
as there are only 4 girls in the advanced Science class, my daughter is very
much in the minority. Perhaps relating to the boys with "junior high boy"
type humor isn't really helping him to teach appropriate relationship
behavior, including a respect for women.

The parent emailed these concerns to District personnel on Saturday, October 3, 2009.
The next day, Sunday, October 4, 2009, Superintendent Gene Johnson sent an email to Dr.
Gillian Chapman, who is the Associate Superintendent for Secondary Schools and Principal
Ostmeyer’s immediate supervisor. That email directed Dr. Chapman to “… please check on this
issue with Susie. See what she knows about it and what she's doing about it.”
Early Monday, October 5, 2009, Dr. Chapman phoned Principal Ostmeyer and directed
her to begin to investigate the email’s allegations immediately. At this time Dr. Chapman did
not know Mr. Haraughty and did not know that he was the “science teacher” to whom the parent
had referred. However, Principal Ostmeyer later identified the teacher in question as Mr.
Haraughty, and said, “I’ll talk with him. We’ve talked before. He will tell me the truth.”
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During this and subsequent conversations Dr. Chapman discussed each step of the process
with Principal Ostmeyer. Shortly thereafter Principal Ostmeyer did interview the parent and
asked, among other things, about the email’s reference to the "except that she had boobs"
comment. The parent indicated she had heard this statement second hand from her daughter. In
addition, during this conversation the parent mentioned yet another incident that had come to her
attention. According to this allegation Mr. Haraughty had responded to laughter in his science
class concerning his misshapen drawing of Florida by saying, “Florida got excited.”
At this point Principal Ostmeyer believed it was necessary to meet with Mr. Haraughty,
and on Friday, October 9, 2009, she sent the following email to him:
Can you join me before school on Friday so that we can discuss a parent
concern that has been shared with me? If the morning doesn’t work for
you, we can move the meeting to the afternoon, after school. Let me
know your preference and I’ll adjust my calendar accordingly.

Mr. Haraughty and Principal Ostmeyer did meet on October 9, at which time the principal
told Mr. Haraughty of the email, showed it to him (with portions highlighted in yellow), told him
the parent’s name, and also told him of the additional allegation concerning the “Florida got
excited” comment.
Principal Ostmeyer has testified that Mr. Haraughty was very forthcoming during that
conversation. When asked about the "except that she had boobs" comment, Mr. Haraughty
denied ever using such terminology, but did acknowledge he was “known to say” that a student
“looked like a sibling without the female attributes.” Principal Ostmeyer took this to mean that
Mr. Haraughty had made such statements more than once, and that he was comfortable doing so.

When asked about the Florida comment Mr. Haraughty explained that while describing
weather patterns he had drawn an outline of Florida that provoked some laughter among his
eighth grade male students. Mr. Haraughty admitted he said “Florida got excited” as he sought
to move the class quickly to another topic. Although Mr. Haraughty has testified he was
referring to animals that swell up when threatened, Principal Ostmeyer responded that at least
one student had interpreted the statement to have sexual connotations.
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At this point Principal Ostmeyer concluded the meeting by summarizing her concerns,
indicating that she would continue investigating these matters, and stating that she would
provide Mr. Haraughty with further information as she obtained it.
That same evening Principal Ostmeyer again phoned the parent who had set these events
in motion. She told the parent that she had talked with Mr. Haraughty and would now like to
obtain a statement from the parent’s child. The parent agreed to that request, and later the
following week the student joined Principal Ostmeyer in her office and wrote the following
statement:
Sexual harassment week starts with a text, informing people what “day”
tomorrow will be. Some examples are “boob-tap day, ball-tap day, and free-for
all.” The next day students—in the hall or cafeteria—act out the action
described in the text. It only lasts a week, but kids take it as a joke (in my
experience)

Mr. Haraughty—He occasionally makes jokes with thinly veiled innuendo such
as remarking about “hanging out with the penguins in Antarctica isn’t a good
idea—it might freeze off.” Or “Florida got excited” I don’t think the comments
are made out of lavisciousness (sic) or malice. However they’re still not a good
idea.

I would like to remain anonymous if you discuss this. Please & thank you.
10-15-04.

In addition, Principal Ostmeyer testified that on this occasion this student told her that Mr.
Haraughty seemed to compare the breast sizes of his female students. However, the student did
not write that in her statement, and when Principal Ostmeyer questioned another student who had
might corroborate that comment, the allegation proved inconclusive.
At this point Principal Ostmeyer, in consultation with Dr. Chapman and other District
administrators, concluded that serious allegations had been raised against Mr. Haraughty. On
October 20 Principal Ostmeyer sent an email to him that stated: “Ryan, I am requesting to meet
with you after school this Thursday, October 22, to discuss a disciplinary matter. You may bring
representation to this meeting. Sincerely, Susie O.”
Four persons attended that October 22 meeting: Mr. Haraughty, Principal Ostmeyer,
Assistant Principal Mike Rasmussen, and Association representative H. J. Heistand. Principal
Ostmeyer began the meeting by presenting the following memo to Mr. Haraughty and explaining
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that she was going to recommend that the Deputy Superintendent of Operations review it for
possible disciplinary action. The memo, which Principal Ostmeyer wrote upon consultation with
Dr. Chapman and other District personnel, stated in its entirety:

To: Ryan Haraughty

From: Susie Ostmeyer
Re: Recommendation for Disciplinary Action
Date: October 19, 2009

A recommendation for discipline is being forwarded to the Deputy

Superintendent for comments you have made to your students. Your
comments have a sexual connotation and they represent a consistent theme
in referrals about your behavior, establishing a pattern since your
employment in 1999. In addition to this incident, you have four (4) letters of
reprimand, two of which addressed comments that also had sexual
references. Further, these comments foster a hostile environment where
students perceive that staff members sanction teasing and harassment.

On October 9, 2009, we met to discuss a parent concern about statements

that you had made to students. The parent stated that in response to a
student who was a younger sibling of a previous student of yours, you
mentioned that "she looked just like her except that she had boobs". In
addition, the parent reported to me that after you drew a picture of Florida
for your class, you had compared its size and/or shape to its excitability by
saying, "Yeah, Florida is excited". You confirmed that you made the
statement about Florida and that you have been known to say to male
students that they look like their sisters without the female attributes. While
investigating this matter, the student raised an additional concern that when
discussing penguins and their habitat you said: "Hanging out with penguins
in Antarctica isn't a good idea, it might freeze off'. The student reported
feeling uncomfortable with the awareness that you may have been
comparing breast sizes of students as well as encouraging sexual jokes
during classroom instruction.

In conclusion, I am recommending that Mr. Bob DiPierro, Deputy

Superintendent of Operations, review this matter and determine disciplinary
action. See the teacher agreement section K-Discipline. You will be notified
by the Deputy Superintendent of a meeting to be held to review this
review this information. You may
bring representation to this meeting.

Signature reflects you’ve received a copy of this information but does not
necessarily reflect agreement.
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There is no question that this meeting did not go well. Indeed, it went so poorly that the
District views Mr. Haraughty’s conduct at that time as having been so threatening and insulting
that insubordination has been identified as one of the bases for discharging him. .
From the outset Mr. Haraughty did not address the allegations contained in the memo;
instead he proceeded to vehemently criticize Principal Ostmeyer. His behavior during the
meeting became so heated that his Association representative requested an opportunity for the
two to meet separately for a few moments. Upon their return Principal Ostmeyer asked both men
to sign the memo to indicate that they had received it; she affirmed that doing so did “not
necessarily reflect agreement.” The UniServ Director did sign the memo. However, on the
“Employee” signature line Mr. Haraughty wrote, “Go to Hell!”
The next day, after conferring with his Association representative, Mr. Haraughty
reported to school. Upon learning this, the Deputy Superintendent issued a memo placing Mr.
Haraughty on immediate paid suspension. Mr. Haraughty was called out of the study hall he was
supervising, given the memo, and he then departed the premises. The memo stated that the
Deputy Superintendent had “scheduled a disciplinary meeting for 10:00 a.m., Wednesday, Oct.
28. You are entitled to bring representation to that meeting.”
The District asserts that the October 28 meeting was pursuant to standard procedure and
was designed to give Mr. Haraughty and his representative an opportunity to address the
allegations that had been raised against him. However, Mr. Haraughty asserts that the decision
had already been made and rebuttal would have been futile. Instead, Mr. Haraughty took that
opportunity to again level myriad criticisms against Principal Ostmeyer, claiming that she was a
terrible principal and that she had targeted him and had seized upon spurious claims to ensure
that his discharge was inevitable.
On November 9, 2009, the Board of Education met to consider a proposed resolution to
terminate Mr. Haraughty’s contract. Despite a large and vocal group of attendees who expressed
strong support for Mr. Haraughty, Board members unanimously passed that resolution.
Since then Mr. Haraughty’s discharge has been the subject of much media attention. The
District, bound by rules of confidentiality, has said very little in spite of that onslaught of
attention and in spite of many attacks directed at Principal Ostmeyer.
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DISCUSSION AND DECISION

The District’s stated reasons for discharging Mr. Haraughty are:

- repeated use of sexual innuendo and sexual banter in the presence of students

- creating and permitting a sexually hostile environment at school

- violation of Board Policy GBEBB ("inappropriate behavior" and "interaction of a

sexual nature”)

- violation of Board Policy JBA (verbal conduct of a sexual nature)

- insubordination

In turn, those allegations fall within two broad categories: (1) sexual banter and (2)
insubordination. Both are discussed below.

1. Sexual Banter
A. Claims of bad faith investigation
Mr. Haraughty notes that the parties’ Agreement requires the District to conduct an
“appropriate” investigation in discipline cases (Article V, Section J) and he submits that Principal
Ostmeyer violated that directive by conducting this investigation in bad faith. Indeed, Mr.
Haraughty claims that the allegations concerning sexual banter are “fabricated” and “trumped up”
and he points to Principal Ostmeyer’s investigation of the October 3 email as evidence that she
sought to achieve “to get” him by concocting allegations and conducting an indefensible
investigation. I have considered this claim and find that Mr. Haraughty’s broad brush attack on
Principal Ostmeyer and her memo do not withstand scrutiny.
First, it is evident that Principal Ostmeyer neither initiated nor determined the course of
this investigation. Her supervisor, Dr. Chapman, has testified that she and other District
administrators advised Principal Ostmeyer “every step of the way.”
Second, the investigation was reasonable. At the direction of the Superintendent and Dr.
Chapman, Principal Ostmeyer began this investigation by contacting the parent who had written
the October 3 email. The parent thereupon elaborated upon the original email and also provided
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new information. Principal Ostmeyer next shared all of this information with Mr. Haraughty,
providing him with the parent’s name, showing him the allegations set forth in the email, and
giving him an opportunity to respond. She also told Mr. Haraughty that she would continue the
investigation and would share with him any additional information that resulted.
Next Principal Ostmeyer obtained the parent’s permission to interview her daughter.
During that interview the daughter prepared a written statement and also made a new allegation
(not found in the written statement) about which Principal Ostmeyer questioned a second student.
It is true that Principal Ostmeyer’s October 19 Recommendation should have noted that the
second student did not corroborate that particular allegation. However, that was not a prejudicial
omission as Principal Ostmeyer nevertheless quickly reported that this claim was “inconclusive,”
and the District did not pursue that matter.
Despite these efforts Mr. Haraughty asks:
Why did Dr. Chapman direct Ms. Ostmeyer to cease her investigation after
interviewing one student? Did she really think that was enough? Or was she
afraid Ms. Ostmeyer would find more students to refute the story she wanted
to put forth? Why did Ms. Ostmeyer, under Dr. Chapman’s direction, not
even look into three of the five claims brought against Mr. Haraughty? Why
did she make no effort to determine whether the accusations were true before
writing the “Recommendation for Disciplinary Action?”

Mr. Haraughty submits that “the answer is simple: Ms. Ostmeyer and Dr. Chapman
needed a scapegoat and Ryan was their man.” However, the evidence does not support that
assertion. It was a parent who set these events in motion. Once the District received the October
3 email it had no choice but to investigate its allegations and the appropriate person to do so was
the principal of the school involved.
The District persuasively asserts that it was sufficient to interview the persons who had
brought forward the allegations, and to then provide Mr. Haraughty with full information so that
he could respond. After Mr. Haraughty confirmed some allegations, and did not outright deny
others, it was not necessary to interview others. This was not a case where the District could
have, or should have, randomly interviewed large numbers of students. Nor did Mr. Haraughty
ever suggest to Principal Ostmeyer that she should interview any person.
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B. Claims of bad faith and fabricated “Recommendation for Disciplinary Action, October
19, 2009”

Principal Ostmeyer prepared the October 19, 2009 “Recommendation for

Disciplinary Action” with the assistance of Dr. Chapman. Neither administrator initiated
this investigation or the resulting memo. Rather, a parent’s email triggered all that
followed. Although Mr. Haraughty disagrees with statements contained in Principal
Ostmeyer’s Recommendation, there is no basis to claim that they were fabricated by
Principal Ostmeyer or any other District administrator. The “Recommendation” begins:

A recommendation for discipline is being forwarded to the Deputy

Superintendent for comments you have made to your students. Your
comments have a sexual connotation and they represent a consistent theme
in referrals about your behavior, establishing a pattern since your
employment in 1999. In addition to this incident, you have four (4) letters of
reprimand, two of which addressed comments that also had sexual
references. Further, these comments foster a hostile environment where
students perceive that staff members sanction teasing and harassment.

Although Mr. Haraughty denies that any of the comments then at issue had a
“sexual connotation,” and thus he denies there is any “consistent theme” or “pattern,” the
evidence is clear that prior to this time he had been issued four written reprimands, “two
of which addressed comments that also had sexual references.” Although Mr. Haraughty
denies that he ever fostered a “hostile environment” the evidence also demonstrates that at
least some students did “perceive that staff members sanction teasing and harassment,”
and that this perception extended to Mr. Haraughty. Thus, these are accurate, not
fabricated, statements.
The Recommendation next details the information that was then available to
Principal Ostmeyer. Although Mr. Haraughty characterizes these observations as
“concocted,” the statements themselves demonstrate otherwise.
Statement:
The parent stated that in response to a student who was a younger sibling of a
previous student of yours, you mentioned that "she looked just like her except
that she had boobs".
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It is true that a parent did report this to Principal Ostmeyer, and it was appropriate to note
that fact. It was also appropriate for Principal Ostmeyer to include Mr. Haraughty’s response to
this allegation:
You confirmed that you … that you have been known to say to male students that
they look like their sisters without the female attributes.

Principal Ostmeyer has testified that she understood this response to mean that Mr.
Haraughty had previously made more than one such statement, and that the statements to which
he admitted could easily be perceived to have a sexual connotation.. However, Principal
Ostmeyer did not include her personal evaluation in this written recommendation; she was
reporting to higher level administrators the information she then had available as a result of her
investigation.
Statement:
In addition, the parent reported to me that after you drew a picture of Florida for
your class, you had compared its size and/or shape to its excitability by saying,
"Yeah, Florida is excited".

It is true that a parent did report this to Principal Ostmeyer and the parent’s child
confirmed this statement. Thus it was appropriate for Principal Ostmeyer to note this as well as
the fact that “You confirmed that you made the statement about Florida.” There was nothing
“concocted” about this.

Statement:
While investigating this matter, the student raised an additional concern that
when discussing penguins and their habitat you said: "Hanging out with
penguins in Antarctica isn't a good idea, it might freeze off'.

This is a true statement in that a student did report this to Principal Ostmeyer. The fact
that Mr. Haraughty later claimed to have said “…things might freeze off” does not negate the
factual nature of this statement.
Statement:
The student reported feeling uncomfortable with the awareness that you may have
been comparing breast sizes of students…
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It is true that a student did report this to Principal Ostmeyer. However, upon further
inquiry that statement was not corroborated and thus played no part in the District’s decision to
discharge Mr. Haraughty.
In short, the evidence demonstrates that the discipline referral in this case merely
informed Mr. Haraughty that he would have a hearing to determine whether his actions warranted
discipline and, if so, what discipline would be imposed. At no time was Mr. Haraughty denied
any information concerning the bases for the District’s concerns, nor was he ever denied the
opportunity to respond to those concerns.

C. Evaluating the evidence, charges against Principal Ostmeyer

Mr. Haraughty’s case has relied largely upon the premise that “the best defense is a good
offense,” and the record is replete with his attacks on Principal Ostmeyer’s purported
incompetence and claims of her improper and vindictive motives. For this reason it is important
to note that the evidence has not supported those charges. On the contrary, it is clear that
Principal Ostmeyer (a) did not initiate these events or this investigation, (b) was advised
throughout her role in the process, (c) played no role in recommending discharge and (d) played
no role in the actual decision to discharge. Indeed, the decision to discharge was made by a
group of higher level administrators. Dr. Chapman has testified “It was a collective decision; not
just one. This avoids any one person’s possible vendetta. In this case everyone agreed that
discharge was the only (appropriate course of action).”
Moreover, although Mr. Haraughty claims that Principal Ostmeyer was “out to get him,”
it is relevant that Principal Ostmeyer did not discipline Mr. Haraughty on other occasions when
she would appear to have had just cause to do so. Such occasions include simply counseling, not
disciplining, him for his use of the terms “frickin’” or “freakin’” and not disciplining him for
locking a student outside of the classroom; an act that the student’s mother characterized as
“bullying.” Both occasions reflected legitimate opportunities to “document” Mr. Haraughty’s file
if Principal Ostmeyer had really intended to “target” him or “drive him out” of the District.

D. Evaluating the evidence, charges against Principal Ostmeyer and Dr. Chapman
 18

Mr. Haraughty’s case initially rested upon claims that Principal Ostmeyer had unfairly
targeted him because he was outspoken at faculty meetings and otherwise made her feel
defensive. Since then he has expanded his claims to also include bad faith on the part of Dr.
Chapman. Specifically, Mr. Haraughty cites the parent email of October 3 and its stated alarm
concerning “sexual harassment week” as evidence that both Principal Ostmeyer and Dr.
Chapman felt under attack and sought to deflect attention from their own oversight failures by
turning their full attention to Mr. Haraughty. In short, they made him a “scapegoat” in the face
of criticisms that could reasonably be viewed as directed against themselves.
I have considered this claim and again find that it is not supported by the evidence. For
reasons discussed above I have rejected claims that Principal Ostmeyer acted in bad faith.
Similarly, there is no evidence that Dr. Chapman acted in any way other than professionally.
With respect to sexual harassment week, it is notable that this matter was investigated and
discipline was issued.

Evaluating the evidence, charges against Mr. Haraughty

1. Sexual Banter
Thus, it is necessary to examine the most recent allegations of sexual banter to determine
if they represented misconduct on Mr. Haraughty’s part. In doing so, it is relevant that two of Mr.
Haraughty’s previous written reprimands were for the same type of comments—inappropriate
sexual comments—for which he has now been discharged. Mr. Haraughty is correct that the
Board’s action to discharge him must stand or fall upon the stated reasons for doing so.
However, the Board’s stated reasons for discharging Mr. Haraughty are his “repeated use” of
sexual banter, and “creating and permitting” a sexually hostile environment. Thus, the Board has
based its actions on an entire course of conduct, of which Mr. Haraughty’s most recent statements
can be viewed as a tipping point. Furthermore, examination of those most recent statements need
not be made in a vacuum; his prior record does provide a context within which to evaluate his
intent in making them.
Mr. Haraughty has acknowledged saying: (a) “Florida got excited,” (b) a male student
looked like his sibling “except for the female attributes,” and (c) “hanging out with the penguins
 19

in Antarctica isn’t a good idea—things might freeze off.” This discussion accepts Mr.
Haraughty’s representation of what he said.
In each case Mr. Haraughty asserts that his comment was purely innocent; he cannot be
responsible for others’ sexual interpretations. Moreover, Mr. Haraughty argues that middle
school students are sexually sophisticated, bombarded constantly with sexually explicit media
and music. He asserts that his comments not only pale in comparison with messages to which his
students are exposed every day, but that his easy going ways with students enabled him to
“connect” with them, fostering openness and trust.
I have considered these arguments and am not persuaded. Mr. Haraughty’s explanations
are strained and after-the-fact. Many persons, particularly middle school male students, would
interpret his statements in their most risqué sense and seize upon them as an opportunity for
general amusement. Indeed, that is what happened. There are several reasons why Mr.
Haraughty must have uttered and understood that his statements constituted at least double
entendres.
First, one can take judicial notice that any teacher, or parent, understands that middle
school students are experiencing one of the two most transitional phases of life (the other being
infancy). Anything can, and will, set off middle school students. As an experienced middle
school teacher Mr. Haraughty should have understood how his remarks would be perceived by at
least some students. He should also have understood that all teachers—especially those who
teach this age group—have a special responsibility not only to provide substantive instruction,
but also to make clear that standards do exist and there is such a thing as adult behavior.
A male middle school teacher can play a special role in guiding students into responsible
adulthood. Unfortunately the record demonstrates that Mr. Haraughty too often crossed
boundaries. A good teacher can “connect” with students in countless ways, none of which include
sexual banter. Mr. Haraughty’s “easy going ways” may have made him a popular teacher with
some students. However, it is also true that female students complained about his sexually
charged remarks and, before these most recent allegations, two different principals each
recommended that he be disciplined for them.
 20

It is evident that even now Mr. Haraughty does not “get it.” He has failed to acknowledge
that two principals’ admonishments concerning his comments were warranted. He instead claims
that Principal Sands “overreacted” and Principal Ostmeyer was defensive and vindictive. This
failure to “get it” ultimately led to an email that specifically identified a “science teacher”
--Mr. Haraughty and only Mr. Haraughty--in the context of a complaint about “sexual harassment
week.” While there has been no claim that Mr. Haraughty was responsible for sexual harassment
week, it is evident that inappropriate comments on the part of a teacher could be, and in at least
one case were, construed as fostering some students’ perceptions that such an outrageous event
was no big deal.

In short, Mr. Haraughty’s common sense should have alerted him to the inappropriateness
of the comments that have now triggered his discharge. Even if he did intend them to be innocent,
he surely must have known they also carried sexual connotations and that at least some of his
students would delight in interpreting them as such--while others would feel uncomfortable.

Moreover, even if Mr. Haraughty’s common sense might not have alerted him, the fact
that he had previously been reprimanded—twice formally and other times informally--for such
statements put him on notice that he must exercise special caution in his remarks to students.
Unfortunately Mr. Haraughty failed to heed either his common sense or his principals’
directives. Even if one accepts Mr. Haraughty’s account of what he most recently said, the
District has demonstrated that his statements did constitute sexual banter and thus violated clear
and reasonable Board policies.

2. Insubordination
On October 22, 2009, Principal Ostmeyer, Mr. Haraughty, Assistant Principal Mike
Rasmussen and Uniserve Representative H.J. Heinstand met to discuss the “Recommendation for
Disciplinary Action” the Principal had prepared following her investigation of the allegations
raised against Mr. Haraughty. There is no question that the meeting went very poorly.
Mr. Haraughty has testified that he knew from the outset that this meeting was the end of
his teaching career. He acknowledges he was quite angry not only that Principal Ostmeyer had
 21

successfully targeted him and was destroying his career with fabrications, he was also angry that
Principal Ostmeyer seemed so light hearted about doing so. In fact, she began the meeting by
referring to the “levity” of the situation. (Principal Ostmeyer and Assistant Principal Rasmussen
have testified that she obviously meant to say “gravity.”) Although Mr. Haraughty denies having
“yelled” during that meeting, he does say that the discipline referral felt like “uncorking a
volcano.”
Assistant Principal Rasmussen attended the meeting simply as an observer, and has not
otherwise had any involvement with Mr. Haraughty’s discipline. Mr. Haraughty has not
challenged Assistant Principal Rasmussen’s testimony, which in turn has been consistent with not
only Principal Ostmeyer’s testimony but also his own. Thus, it is uncontroverted that after the
meeting commenced Mr. Haraughty did not attempt to address the allegations being presented to
him, but instead exploded with a litany of criticisms of Principal Ostmeyer, telling her that

• she was a “terrible” principal

• the district had no business putting her in charge
• she didn’t listen
• she didn’t ask for feedback
• she held 45 minute staff meetings just to hear herself talk
• she wasn’t interested in what is good for kids
• the discipline referral was “crap”

At this point the representative of the Teacher’s Association, H. J. Heistand, excused

himself and Mr. Haraughty for a few minutes to talk privately. Upon returning, Mr. Haraughty
wrote “Go to Hell!” on the discipline referral and departed.
Assistant Principal Rasmussen testified that Mr. Haraughty began the meeting by “yelling
angrily” and that he was “threatening. He had an angry look and was leaning forward in his
chair.” Assistant Principal Rasumussen was “astonished by (Mr. Haraughty’s) behavior and
assumed that he did not intend to return to his job.” “At the meeting (Mr. Haraughty) never
acknowledged any performance problem, nor offered to try to correct his behavior. He didn’t ask
for another chance.” “After this minute I thought (Mr. Haraughty) was gone. I was surprised to
 22

surprised to see him in class that week. It was very unprofessional.” In summary, Rasmussen
testified that Mr. Haraughty “didn’t treat her (Principal Ostmeyer) as a principal or as a person.”
Principal Ostmeyer testified that she felt threatened and intimidated by this onslaught.
Through her office windows she could see two staff members staring at what was taking place.
In addition, a counselor whose office is two doors down left a meeting to walk to Principal
Ostmeyer’s office and watch through her window, as if to protect her.ii After Mr. Haraughty and
Mr. Heistand departed, Principal Ostmeyer has testified that “A teacher walked in and gave me a
big, compassionate hug.”
Both Mr. Haraughty and H. J. Heistand acknowledge that they spoke by telephone that
evening to determine whether Mr. Haraughty should even attempt to work the next day. In
addition, the NEA Shawnee Mission President heard of the day’s events and called Principal
Ostmeyer that evening to express her sympathy.
Mr. Haraughty submits that this single incident does not fairly reflect who he is as either a
teacher or a human being. He has testified that once Principal Ostmeyer began reading her
recommendations he knew that his career was over. The District’s bad faith conduct had put him
in an impossible situation. It is not surprising that became upset and emotional in the face of
unsubstantiated charges of misconduct. Had the District conducted an appropriate investigation,
the allegations would have been revealed as false and there never would have been an October 22
meeting. Mr. Haraughty argues that under the circumstances his conduct cannot be characterized
as insubordination.
I have considered Mr. Haraughty’s arguments but find that the District has met its burden
of proving that his uncontroverted conduct on October 22, 2009, did constitute insubordination.
Despite Mr. Haraughty’s assertions, there had been no attempt to railroad him. Instead, his
supervisor was attempting to once again review concerns that had been raised about his behavior
and to inform him that these concerns were now being forwarded to a higher level. It is
understandable that Mr. Haraughty was upset, even angry. However, that does not excuse his

ii The District sought to produce the testimony of additional witnesses to this event. However, those
witnesses had unwittingly violated the sequestration order so were not permitted to testify.
 23

embarking upon an outraged and threatening tirade against Principal Ostmeyer, or any
supervisor. The District has met its burden of proving the claim of insubordination.

Conclusion

Based upon the above evidence and argument, I find that the District has met its burden of
proving that it had just cause to discharge Mr. Haraughty effective November 10, 2010. The
District has produced substantial evidence that the grounds for that discharge were made in good
faith and were not arbitrary, irrational, unreasonable, or irrelevant to the District’s task of
building up and maintaining an efficient school system. See Unified School District No. 434,
Osage County v. Hubbard, 19 Kan.App.2d 323, 326, 868 P.2d 1240 (1994).

AWARD
For the above reasons this grievance is hereby denied.

July 5, 2010
Christine Ver Ploeg, Arbitrator