Washington West Supervisory Union (WWSU) lost its appeal in Superior Court over whether Harwood Union para-educator Denise Fuoco should be re-instated.

After binding arbitration last fall, WWSU was ordered to reinstate Fuoco, who was fired from her job for failure to obtain the “highly qualified professional” (HQP) designation. The arbitrator found there was no just cause and ordered her re-instated and made whole. WWSU appealed, arguing that the arbitrator overstepped his authority and was ordering the school to violate the federal law that requires para-educators to have HQP status in schools that receive Title 1 funds. WWSU asked that the arbitration judgment be vacated.

Superior Court Judge Michael Kupersmith ruled against the district on April 25, drawing a distinct line between the arbitrator ordering her re-instated and his giving the school board the option of re-instating her in a position that would not violate the federal law.

Judge Kupersmith affirmed the authority of the arbitrator, citing a series of legal precedents that demonstrates that Vermont has a long tradition of upholding arbitration awards and recognizes “the importance of arbitration as an alternative to litigation for the efficient resolution of disputes, understanding that, if courts were accorded a broad scope of review, then arbitration would become merely ‘another expensive and time consuming layer to the already complex litigation process,’” Kupersmith ruled, quoting Supreme Court precedents.

“The court may ‘not reweigh the evidence presented to the arbitrator or subject the merits of the controversy to judicial review.’ Rather, the court must confirm an award unless ‘there exist statutory grounds for vacating or modifying,’” he continued.

Fuoco was dismissed from her para-educator job at Harwood Union in mid-October 2010. Fuoco had been working as a para-educator in the Washington West Supervisory Union for more than 11 years. She worked from 1999 to 2008 at the Moretown Elementary School and then at the Harwood Union Middle School from 2008 to 2010 when she was terminated in October 2010.

When Fuoco moved from the Moretown Elementary School to Harwood Union in 2008, she received a positive evaluation and was offered a contract for the 2009-2010 year. During the 2010-2011 year, Fuoco was notified that she needed to take a HQP test which she was reluctant do take because of dyslexia. She asked for accommodations for her dyslexia and was denied and then fired.

Represented by her union, she filed a grievance that ended up in the binding arbitration that found she had been unjustly fired and should be reinstated and made whole for her lost wages. The arbitrator also ruled that she should be given six months to prepare for and take the HQP test.

During trial in Superior Court, WWSU took the same position the district took during arbitration, according to Kupersmith, that there was no choice but to fire Fuoco because she did not have HQP status and to do otherwise would violate the federal law governing Title 1 funds for schools.

“The plaintiffs argue that the arbitrator’s award, if not vacated, will compel them to violate the HQP clause for at least six months, because the award requires it to reinstate Ms. Fuoco to her instructional paraprofessional position before she obtains HQP status,” Kupersmith noted.

“The plaintiff’s motion is notable for what it does not challenge . . . . The arbitrator found that termination was not supported by just cause. Plaintiffs do not expressly challenge that determination. Nor do they challenge the monetary and seniority relief awarded . . . only reinstatement to a position that causes it to violate the law,” Kupersmith ruled.

Kupersmith ruled that WWSU’s argument that it could not violate the federal law assumed that Fuoco would be returned to her previous position, when in fact the arbitrator gave WWSU and the Harwood Union School Board the discretion to return her to a position “that the board deems appropriate.”

Judge Kupersmith noted that the distinction between being reinstated to an educational paraprofessional position – which WWSU argued would cause it to violate federal law and lose Title 1 funds – and being reinstated to a position the board saw fit negated the WWSU argument.

“Rather, the arbitrator ordered the school to give her six months to comply with the requirement while remaining an employee. Nowhere in the decision does the arbitrator suggest that Ms. Fuoco should be permitted to cause the school to violate federal law. As a whole, the decision is clear that the arbitrator was concerned that Ms. Fuoco, having relied for an extended time on the school’s lax enforcement of the No Child Left Behind Act, have enough time to reasonably prepare for and take the test with any available accommodations while remaining employed, not that she stay cemented in a position that placed the school’s Title 1 funding at risk,” Kupersmith wrote.

Washington West Supervisory Union Superintendent Brigid Scheffert did not respond to a request for comment. Darren Allen, spokesperson for the Vermont NEA, said, “We are pleased that Judge Kupersmith upheld the arbitrator's correct decision. We hope that the school board will now allow this popular, effective educator to get back to work and be given the chance to comply with the conditions set out by the arbitrator. The judge clearly disagreed with all of the board's arguments.”