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In determining whether the Community College of Philadelphia had just cause to fire a professor accused of inappropriate physical contact with a student, a local arbitrator should not have reassessed the facts of the underlying incident and concluded that no sexual harassment had taken place, a Philadelphia judge has ruled. In Community College of Philadelphia v. Faculty Federation of Community College of Philadelphia, Judge Matthew D. Carrafiello argued that the Commonwealth Court should affirm the decision to vacate the award of arbitrator Joseph B. Bloom. According to Carrafiello’s opinion, the matter stems from a February 2001 incident in which Gabriel Yimesghen, a CCP professor, allegedly grabbed student Lily Jefferies by the back of her head and kissed and ground himself against her during a tutoring session in his office. Yimesghen admitted in an affidavit to giving Jefferies a “friendly” hug and kiss on the cheek, according to the opinion. Jefferies complained to CCP officials. After conducting an investigation — which included the review of similar allegations made against Yimesghen in the past, according to the opinion — the college fired Yimesghen in March 2001. The CCP faculty’s union, which is also known as Local 2026 of the American Federation of Teachers, filed a grievance, and the matter was remanded for arbitration. After holding a series of hearings, according to the opinion, Bloom concluded that CCP had failed to investigate inconsistencies in Jefferies’ story, did not have substantial evidence to indicate that Yimesghen had aggressively kissed Jefferies and pressed himself against her in a lewd manner and had not established that the professor had engaged in similar incidents in the past. Bloom directed that Yimesghen be returned to his part-time position with back pay. In an opinion in support of the July order granting CCP’s motion to vacate the arbitration award, Carrafiello found that Bloom had gone “beyond his sole obligation of determining whether there was adequate just cause to dismiss Yimesghen.” “The arbitrator may have believed Yimesghen’s testimony that hugging and kissing a student is ‘common to his ethnic heritage,’ but under [CCP's] policies, it is sexual harassment,” Carrafiello wrote. “At the arbitration it was established that Yimesghen had been warned that such behavior was unacceptable after he had allegedly conducted himself in a similar matter towards one female student and even, admittedly, had sexual relations with another. Yimesghen was on notice that touching of a sexual nature was not condoned and it should have come [as] no surprise that [CCP] would not tolerate further deviations from school policy.” Under the collective bargaining agreement between the college and the faculty union, Carrafiello wrote, CCP had the sole right to discipline and/or fire its employees, and thus the only issue properly before Bloom was the “just cause” determination. “[Bloom's] cursory conclusion is inconsistent with the facts and does not rationally derive itself from the CBA,” Carrafiello wrote. “There is no requirement under [CCP's] sexual harassment policy that the unwanted sexual behavior must be ‘aggressive’ or ‘lewd.’ The policy explicitly states that unnecessary touching, hugging or brushing against a person’s body [is an] example of behavior that may be considered sexual harassment. … It must be noted that even a ‘friendly’ hug and kiss between a professor and student (or any persons) are utterly unacceptable when the recipient has not invited such physical contact. … To accept [Bloom's] rationale would be to undergo the great strides we have made in protecting those vulnerable to the sexual harassment and predation from those of more power or greater status.” Steven Ludwig of Fox Rothschild, who represents CCP, said that “the college does not comment on personnel matters.” He declined to comment further. Counsel for the union, Bruce Ludwig of Sheller Ludwig & Badey, said that the decision has been appealed because CCP’s Faculty Federation “disagrees with the judge’s legal reasoning and his review of the arbitrator’s award.” When reached by The Legal, Bloom declined to comment on the case or Carrafiello’s decision. Bloom is registered with the Pennsylvania Department of Labor & Industry’s online database of arbitrators. According to the entry, Bloom is a Lafayette Hill-based neutral arbitrator who frequently renders decisions in labor dispute matters. Bloom served as the city of Philadelphia’s director of labor relations and chief negotiator from 1984 to 1992.

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