Office of Administrative Law Judges
WASHINGTON, D.C. 20424-0001
DEPARTMENT OF DEFENSE
FEDERAL EDUCATION ASSOCIATION
Case No. CH-CA-60439
Julie Spencer Representative of the Charging Party
Philip T. Roberts Counsel for the General Counsel, FLRA
Before: GARVIN LEE OLIVER Administrative Law Judge
Statement of the Case
The unfair labor practice complaint alleges that the Department of Defense Dependents Schools (Respondent or DODDS), by Ora C. Flippen-Casper, Principal, Giessen Elementary School, Giessen, Germany, violated section 7116(a)(1) and (2) of the Federal Service Labor-Management Relations Statute (the Statute), 5 U.S.C. §§ 7116(a)(1) and (2), by giving Deborah Wertz, a teacher and bargaining unit employee, a low assessment of potential for advancement in Respondent's educator career program (ECP) because Wertz engaged in representational activities on behalf of the Charging Party (Union or FEA).
Respondent's answer denied any violation of the Statute. Respondent alleged that Ms. Flippen-Casper evaluated
Ms. Wertz' potential to serve as an administrator solely on the basis of Ms. Flippen-Casper's observation of Ms. Wertz' performance and her interaction with Ms. Wertz.
For the reasons set forth below, I find that a preponderance
of the evidence supports the alleged violations.
A hearing was held in Wiesbaden, Germany. The Respondent,
Union, and the General Counsel were represented and afforded full
opportunity to be heard, adduce relevant evidence, examine and
cross-examine witnesses, and file post-hearing briefs. The
Respondent and General Counsel filed helpful briefs. Based on the
entire record, including my observation of the witnesses and their
demeanor, I make the following findings of fact, conclusions of
law, and recommendations.
Findings of Fact
The Respondent and the Union
The Respondent's mission is to provide high quality
education, kindergarten through grade 12, for eligible minor
dependents of military and civilian personnel stationed overseas.
The Union is the exclusive representative of a unit of teachers
appropriate for collective bargaining at the Respondent, including
the Respondent's schools in Giessen, Germany.
Ora C. Flippen-Casper
Ora C. Flippen-Casper has been a principal for 12 years. In
August 1995, she became the new principal at Giessen Elementary
School. Before that, she had been a teacher for five years and an
assistant principal for a year and a half.
Jill Ann Drascher, former Union representative, known as the faculty representative spokesperson (FRS), from approximately 1990 to 1993 at Buedingen Elementary School, testified that she had a good working relationship with Flippen-Casper, the principal at Buedingen, and Flippen-Casper encouraged her to apply for advancement and recognition. Drasher stated that Flippen-Casper was always willing to work with the FRS to resolve issues at the school level. There were times when they disagreed on issues, but that disagreement did not rise to a personal level. Drascher never filed any grievances or unfair labor practices.
Deborah Wertz is a teacher of the fourth grade at Giessen
Elementary School. During the 1995-96 school year, Wertz taught a
combined class of fourth and fifth graders. She has taught at
Giessen Elementary for nine years. For the past four years, she has
been the FRS at Giessen Elementary. For the five years preceding
the 1995-96 school year, Wertz consistently received exceptional
ratings - the highest possible rating - on her annual performance
Wertz as Acting Principal
Shortly after arriving at Giessen Elementary, Flippen-Casper
had to be away from Giessen for two weeks due to an emergency.
During her absence, Wertz was designated acting principal, a
position she had regularly assumed in the absence of the principal
since March 1995. Wertz continued to serve in that capacity on a
number of occasions when Flippen-Casper was absent up until January
The October Observation
The principal normally conducts three formal class
observations of teachers during the course of the year for the
purpose of evaluating the educational process and the teachers'
strategies. The observation is followed by a post-observation
conference with the principal.
Wertz had her first post-observation conference by
Flippen-Casper on October 12, 1995. Flippen-Casper's comments on
Wertz' performance were very positive. Among other things,
Flippen-Casper said that Wertz' classes were well-organized,
transitions were smooth, students had an opportunity to practice
skills and were active participants, and Wertz' lesson plans were
well-organized, easy to read, and very specific. The only negative
remarks concerned the quality of students' writing, which were the
subject of dispute with the Union, and will be discussed in more
Wertz' Comments to Flippen-Casper as FRS
At the end of the October 12, 1995, post-observation
conference, Flippen-Casper asked Wertz if there were other
concerns. Wertz replied that there were, and she would like to
address them as the FRS.(1)
Wertz explained in detail that the teachers were concerned
that Flippen-Casper had changed past practices concerning
post-observation conference procedures, pop-in visits, and the
scheduling of post-hearing conferences pursuant to the
Flippen-Casper was not pleased to receive this criticism.
With respect to Wertz' comments concerning the post-observation
conference procedures and pop-in visits, Flippen-Casper responded
that "if teachers were concerned, then they must be insecure and
have something to hide." Concerning the scheduling of post-hearing
conferences, Flippen-Casper replied that Wertz did not need to
quote the contract to her; that she was aware of it.
Wertz' Comments at Heidelberg Course
Robert G. McNeil, Jr., a Department of the Army employee,
testified that he attended a University of Oklahoma master's in
education course with Wertz and others in Heidelberg, Germany.
During the October 13-16, 1995 classes, Wertz identified herself as
the Union representative and sometimes-acting principal at the
school. Wertz said other teachers came to her with their concerns,
and she criticized her "administrator's" handwriting and
observation policies which, she said, were destroying the staff's
morale. McNeil suggested that Wertz convey these concerns directly
to her administrator or she would be part of the problem. Later,
according to McNeil, during a December 1995 class, Wertz announced
that she and other staff members had lodged a grievance against the
Wertz' Departure for Conference
Around October 23, 1995, Wertz was asked to fill in at the
last minute as the FEA's representative on a DODDS/FEA technology
task force which met the following week in Arlington, Virginia.
Wertz left on October 26 and did not return until November 6,
The "Pop-in" Visits
A "pop-in" visit is an unscheduled visit by the principal to
a teacher's classroom. Upon Wertz's return, Flippen-Casper
conducted a "pop-in" visit her first day back on the job. Normally,
"pop-in" visits are not conducted the day after a teacher returns
from an absence. Thereafter, Flippen-Casper "popped-in" to Wertz'
classroom several times, as she did to other teachers.
On November 28, 1995, Flippen-Casper met with Wertz to
provide some feedback on these "pop-in" visits. Flippen-Casper
criticized Wertz for sitting down while conducting class, instead
of circulating and monitoring the students, during four of her
"pop-in" visits. Wertz gave an explanation for sitting on these
occasions, but when she received a memorandum the next day from
Flippen-Casper setting forth the same criticism for the record,
Wertz filed a grievance.
In her grievance of November 30, 1995, Wertz reiterated her
reasons for being seated, alleged that the "pop-ins" were
invalidated due to the failure to provide follow-up conferences
within two days, and requested that the memorandum be removed from
Flippen-Casper denied the grievance on December 5, 1995.
Wertz elevated it to the Area Superintendent who also denied the
grievance on January 4, 1996. The Area Superintendent found nothing
improper in the memorandum and stated that "pop-in" visits were not
formal observations requiring discussions within two days under the
The Clifton Talbert Program Decision
On December 4, 1995, at the regularly scheduled monthly
faculty meeting, Flippen-Casper brought in a staff development
specialist from the District Superintendent's office to talk about
the staff's possible participation in a cultural diversity program
to be led by the noted author Clifton Talbert. The program would
require teachers to use some of their own time and purchase a book
with their own funds. It would be conducted only if a majority of
the staff agreed to participate. Flippen-Casper remarked that it
would certainly benefit the staff to have Clifton Talbert work with
Following the faculty meeting, the Union conducted its
regular monthly meeting during which the eleven teachers present
discussed whether or not they wanted to participate in the Talbert
program. They voted unanimously not to participate in the program
as designed, but to pursue the possibility of having Mr. Talbert
come in and work directly with the students.
Wertz, as the FRS, drafted a memorandum reflecting that "the
staff discussed the presentation" and the "decision was unanimous
that we not participate." She added that the staff would be very
interested in having Mr. Talbert work with the students. Wertz left
it in Flippen-Casper's box the next day. Flippen-Casper found it
hard to believe that the decision of the staff was unanimous, since
she had gained the impression that some members of the faculty were
interested. She called a mandatory staff meeting to address the
During the meeting, Flippen-Casper read to the group the
part of the memo about the teachers not wishing to participate, and
repeatedly stated, "I just can't believe this." After two teachers,
both non-Union members, and therefore ineligible to participate in
the December 4 Union meeting, spoke up that they had not been
consulted about the memo, Flippen-Casper turned to Wertz and said
that the Union(3) had no right to
take this poll; it was no concern of theirs.
At the suggestion of one teacher, Flippen-Casper announced
that she would re-poll the staff herself. The next day, ballots
were placed in all the teachers' distribution boxes. When these
ballots were tallied, eleven teachers voted against participation
in the Talbert program and six voted for it. In a faculty bulletin,
Flippen-Casper announced that the staff would not be participating
in the Clifton Talbert program in view of the results of the
The Handwriting Policy Issue
On three occasions from October 1995 to January 1996, Wertz, on behalf of the teachers, sought clarification from Flippen-Casper concerning her handwriting policy. The DODDS curriculum required that De'Nelian handwriting (a method of printing letters with tails at the end) be taught in grades kindergarten through second grade and that cursive handwriting be taught and reinforced in grades three to six. Some teachers gained the impression that Flippen-Casper required students in grades three to six to do all of their work in cursive. This requirement, they felt, would circumvent their professional judgment concerning an individual child's development and change the past practice in this respect. These teachers were also aware that Flippen-Casper concentrated on this work in "pop-ins" and formal observations and were concerned that Flippen-Casper's opinion of the quality of the students' cursive handwriting would be reflected in the teachers' evaluations. For these reasons, the teachers asked Wertz to request Flippen-Casper for an explanation of her objectives.
Wertz was not satisfied that the staff's concerns about the
amount or the quality of the students' cursive writing had been
answered by Flippen-Casper. As the FRS, she took up the matter with
Dr. Gene Knudsen, district assistant superintendent, on January 4,
1996, when he visited her classroom. In her capacity as Union
representative, Wertz showed him a current copy of Flippen-Casper's
weekly bulletin in which Flippen-Casper discussed the scheduling of
teachers' formal observations and stated that her emphasis on these
occasions would be on handwriting and cursive writing assignments
and the quality of such writing. Wertz made a copy of the bulletin
for Dr. Knudsen and asked him if there was a DODDS policy on
handwriting, particularly whether it specified how much of a
child's work had to be done in cursive. Dr. Knudsen said that
surely Flippen-Casper had been misunderstood, but he would address
the matter with Flippen-Casper and get back to Wertz concerning the
Two days later, Flippen-Casper called Wertz in for a
meeting, at which time Flippen-Casper had a copy of the DODDS
policy. Flippen-Casper told Wertz, "I really don't appreciate that
you went over my head, because it appears that I don't have good
communication with my staff." Wertz replied that she just wanted to
get clarification of the policy "that we hadn't been able to
The Host Nation Substitute Negotiations
On January 16, 1996, Flippen-Casper advised Wertz, as the
FRS, that the host nation teacher would be absent and no substitute
teacher would be hired as it would use up the number of substitute
days available. The host nation teacher instructs students two or
three times per week for 45 minutes on local language and culture.
The regular teachers use this time for preparation for their other
classes. The decision not to hire a substitute would significantly
reduce the amount of preparation time available to the teachers. On
January 18, 1996, Wertz sent a memo to Flippen-Casper asking to
meet and discuss the change and to hold it in abeyance until they
could resolve the matter.
Flippen-Casper met with Wertz on January 19, 1996.
Flippen-Casper said that the change was driven by the fact that
DODDS was limiting the number of days substitutes could be hired in
a given school year, and she did not want to hire a substitute
until the teachers came up with an alternate plan concerning what
would be done in the event the allotted days were used up. She also
requested that Wertz poll the staff to make sure the teachers would
be in agreement to have a substitute and were aware of the
Wertz replied that, as the FRS, she spoke for the staff in
requesting the hiring of a substitute. She said the allotted days
were not a teacher problem, the teachers were not responsible to
have an alternate plan, and she had been told by Union officials at
the district level that substitute days were not a problem.
Flippen-Casper adamantly disputed this, but agreed to hire a
substitute for one or two days contingent upon Wertz informing the
staff of the situation concerning substitute days.
Based upon this meeting, Wertz drafted minutes which
Flippen-Casper did not agree to, but modified in some respects.
Later, Flippen-Casper issued her own memo to the staff on the
subject, pointing out the limitation on the number of substitute
days and the need for the staff to give some thought to an
alternate plan, or the various ways in which the staff could cut
back if the limit were reached.
Flippen-Casper testified that Wertz' position could have put
her in a bind to figure out how to cover the classes. This is why
she wanted Wertz to speak with the staff and come up with an idea
and also asked her on this occasion, "Okay. You are interested in
becoming an administrator. How would you deal with this?" Wertz
said that the first thing she would do would be to contact the FRS.
Flippen-Casper said, "Well, is there another option?" Wertz said
she couldn't think of one, to which Flippen-Casper responded,
"Well, think again." Flippen-Casper testified that, from such
occasions, when she asked Wertz to get in the mode of thinking as
an administrator, "that was something that I thought that she
lacked, trying to wear a different hat, so to speak, and not think
as a teacher, but to think as an administrator."
The School Secretary Petition
On February 2, 1996, Wertz, in her capacity as Union
representative, drafted a petition to Flippen-Casper, which was
signed by the staff of Giessen Elementary School, objecting to the
termination of the school secretary, Jackie Stoneback. Copies of
the petition were designated for the district superintendent and
chief of employee relations. Stoneback was not a member of the
bargaining unit, but was responsible for many routine daily
operations at the school, such as time and attendance cards and
relaying messages to and from parents and teachers. The petition
pointed out that the staff had a high regard for Stoneback's
ability, found it difficult to understand her termination, and
believed that her departure would have a detrimental effect on
their working conditions. Flippen-Casper never responded to this
The Educator Career Program Application
In January 1996, Flippen-Casper, being aware that Wertz was working toward a master's degree in administration, brought the Educator Career Program (ECP) to Wertz' attention and encouraged her to apply. The ECP is a program through which DODDS employees are placed in principal, assistant principal, and other supervisory, managerial, and specialist positions within DODDS. To be considered for the ECP program, a DODDS employee must fill out an extensive application package and include an assessment of potential filled out by the employee's immediate supervisor.
Wertz filled out the application and requested
Flippen-Casper to complete the assessment portion. Flippen-Casper
gave Wertz her completed assessment of potential on February 2,
1996. In this assessment of potential, Flippen-Casper rated Wertz
"Low Average" in sixteen categories, "Low" in seven categories,
"High Average" in six categories, and "High" in two categories.
This resulted in a summary recommendation of "Low Average."
Flippen-Casper described Wertz' limitations as "Lack of
understanding of the rule [sic] and responsibilities of an
Administrator" and "Support of non-good teaching practices and
Wertz Resigns as School Improvement Chairperson
On February 5, 1996, Wertz submitted her resignation to
Flippen-Casper as school improvement chairperson and member of the
school improvement team. She stated, "In light of your recent
below-average/low appraisal of my skills in areas that are critical
to the success of the School Improvement Process, I feel I no
longer have your trust and confidence that are critical to the
success of the School Improvement Process."
The Fruit Exercise
On February 5, 1996, Flippen-Casper conducted a staff
development meeting to assist teachers to deal with an increase of
conflict among students, which she attributed to many of the
students' parents being deployed to Bosnia. In her exercise, Ms.
Flippen-Casper used a basket of fruits, including apples, oranges,
grapes, and an over-ripe banana, to represent the diverse student
body. Teachers were to relate the pieces of fruit to their students
and decide how to use peer mediation and conflict resolution to
solve the problems that were occurring, e.g., how to prevent the
bad fruit from destroying the beautiful fruit. Flippen-Casper also
said that this exercise could also be applied to working with
Wertz believed she was being identified as the "bad banana,"
because she felt the only conflict that had taken place between
colleagues was between Flippen-Casper and herself. However, there
is no evidence that Flippen-Casper indicated that the exercise was
directed against Wertz or the Union, and she did not identify Wertz
as a "bad banana."(5)
The February Observation
On February 5, 1996, Flippen-Casper met with Wertz to
discuss the second scheduled observation session for the year,
which took place on February 1, 1996. Unlike the October
conference, where Flippen-Casper's observer's comments had
virtually nothing but praise for Wertz' teaching methods,
Flippen-Casper's comments for the February conference merely gave
an account of what went on in the class and then stated that the
objective of Wertz' lesson was unclear.
On or about February 15, 1996, Wertz met with Flippen-Casper concerning another matter, and Flippen-Casper brought up the assessment of potential. Flippen-Casper said she did not consider Wertz' role as the FRS in writing the assessment. She told Wertz that communication was very important and there were times when Wertz did not communicate with her at all. She said, "You . . . may be displeased because something has been addressed with you. But that's the administrator's responsibility." She also said that Wertz had been very negative about Flippen-Casper's comments with regard to Wertz sitting down and concerning the handwriting policy. Flippen-Casper told Wertz that the assessment was not written in stone and could always be changed, but it was contingent upon Wertz. She said that Wertz did not seem to understand the roles and responsibilities of an administrator and lacked the ability to wear different hats and not think as a teacher, but as an administrator. Flippen-Casper stated, "When I wanted to be an administrator, I started to think differently."
On April 8, 1996, after the instant charge had been filed on
February 23, 1996 and investigated, Wertz had the third and last
regularly scheduled observation of the year by Flippen-Casper.
Flippen-Casper's remarks were much more complimentary this time.
For example, she said that "Ms. Wertz displayed considerable skill
with the lesson. The objective of the lesson was clear. The use of
time, momentum and preparation were appropriate and effective.
Students were involved during the entire lesson. High expectations
were clear. She displayed very positive rapport with her students.
It appeared objectives were met. The students were very
enthusiastic about their projects."
On May 15, 1996, Flippen-Casper issued her annual
performance appraisal to Wertz. She rated Wertz "Exceeds" in four
out of seven elements.
Action Taken on Wertz' ECP Application
Regardless of anything else in Wertz' application package, the "Low Average" assessment by Flippen-Casper would have effectively prevented Wertz from being rated "Best Qualified" through the ECP process and would have prevented her from being considered for promotion through the ECP.
However, Wertz had not completed her course work for the
master's degree at the time of her application, a basic educational
requirement of the positions for which she was applying. She
expected to do so by March 15, 1996, or at about the same time as
the ECP panel was meeting, and she expected the degree to be
awarded some time later, as it was on May 11, 1996. Wertz explained
these facts in her application and asked for a waiver of having the
degree in hand, contingent upon receiving the degree as
The waiver was not granted. Dean Wiles, Chief, Educational Division, DODDS Europe, who was chairperson of the panel and responsible for some 50 recent panels, knew of no instance where a panel had granted such a waiver, due to the many problems which can occur before the final completion of a degree. However, the parties stipulated that DODDS has, in fact, granted such a waiver at some time in the past.
Wilis testified that the ECP panel members never saw the
principal's assessment of Wertz. Once an administrative review of
Wertz' application showed no evidence that she had completed the
basic educational requirement of a master's degree, her application
was placed aside and the rest of the panel never evaluated it.
Thus, the assessment of potential evaluation given to Wertz by
Flippen-Casper played no part in the rating of "Not Qualified"
subsequently given by the ECP panel in March 1996.
Wertz received her master's degree as scheduled and is
eligible to apply again to the ECP program. There are about three
ECP panels scheduled per year. The panel considers an applicant's
current submission and would not automatically have access to a
previous submission. If an applicant submits a new assessment of
potential from a principal, that would be the one considered by the
panel. Principals, including Flippen-Casper, are often asked to
participate in the panels, but, as panel members, they do not
evaluate the applications of their own employees. Flippen-Casper,
who was a member of the March 1996 panel, did not review or rate
Flippen-Casper's Testimony Concerning the ECP
Flippen-Casper testified that she had no animosity toward
the Union or its representatives and the assessment of Wertz was
not an attempt to get back at her for her Union activities.
Flippen-Casper said that she based her assessment on her
observation and contact with Wertz as a teacher and her evaluation
of Wertz' potential as an administrator. According to
Flippen-Casper, many policies and practices must be reinforced as
an administrator, and Wertz appeared not to understand an
administrator's role and responsibilities. Flippen-Casper rated her
based on her reaction to these policies and procedures, which, if
she were an administrator, she would have to reinforce and
implement. Flippen-Casper said that Wertz had a negative reaction
to Flippen-Casper's criticism of her sitting during the pop-in
visits and a negative reaction to the cursive writing policy. She
lacked the ability "to wear a different hat, so to speak, and not
think as a teacher, but to think as an administrator."
Flippen-Casper stated that she rated Wertz differently as a teacher, using different criteria, because a person can be a good teacher and not a good administrator, and vice versa.
Flippen-Casper said she certainly stood by her ECP
assessment of Wertz and would do it again.
Comparison of Some Position Related Abilities Rated in the
Assessment of Potential and During Post-Observation Meetings in
October 1995, April 1996, and in Wertz' Annual Performance
Appraisal in May 1996. The Numbered Category at the Top Reflects
the Position Related Abilities in the Assessment of
4. Completes assignments effectively and efficiently -
Wertz' appraisal says that she "submitted, posted and communicated her grading policy . . . in advance of the suspense requirement" and that she submitted her progress report grades in a timely manner. It also says that "to help her students focus on instructional tasks, Wertz minimized classroom management duties so they were completed efficiently and effectively."
5. Employs appropriate testing or assessment techniques - no rating and
24. Assesses progress toward goal achievement - low
25. Reviews work of others effectively - low.
During the October 1995, observation, Flippen-Casper noted
that Wertz "Checked students understanding through the use of
Wertz' appraisal says that "to evaluate and document student work, she used oral assessments, essays, written reports, and a variety of testing formats." It also says that she "used effective assessment methods in her classes to consistently keep students involved in learning" and that her assessment records were "accurate and neat."
7. Applies appropriate principles of financial management - low average and
8. Maintains a supportive logistic system - low
Wertz' appraisal notes that she was "knowledgeable of the
school's supply and maintenance procedures and effectively used
these procedures to maintain optimal operating conditions in the
classroom. [She] established an effective system of accountability
for school property" and she "reconciled sub-hand receipts with the
supply clerk as required."
10. Adapts easily to a wide variety of changes and
workloads - low average.
In her October 1995, observation, Flippen-Casper noted that
"Management of both classes [a combined class of 4th and 5th
graders] appeared to have been very well organized. Students in
both grade levels appeared to have been on task while [Wertz]
worked with another grade level. Smooth transition from one grade
level to the other."
In her April 1996, observation, Flippen-Casper said
"Students then transitioned smoothly . . . [Wertz] monitored all
On the annual appraisal, Flippen-Casper said Wertz was
"always prepared to teach her combination class" and that she "made
a quick and smooth transition between the two grade levels."
11. Maintains consistently high qualities of work -
Wertz' appraisal indicates that "[t]hroughout the school
year, Ms. Wertz was conscientious in planning for instruction." It
also said that "[h]er classroom was well organized and arranged for
a high degree of learning."
14. Communicates student progress to students and
parents - low average.
Wertz' appraisal says that she "made every effort to help
students understand and keep up with their progress through
communications submitted to parents." "She provided parents her
home telephone number for better communication regarding their
child's progress. She clearly explained the grading policy to
students during the first week of school and provided their parents
with a written explanation."
15. Demonstrates skill in explaining, instructing and
conversing with others in a clear and effective manner - low
During the October 1995, observation, Flippen-Casper said
that Wertz' use of "Personalized experiences assisted in the clear
explanation of 'tradition.'"
During the April observation, Flippen-Casper noted that
Wertz "communicat[ed] to [the students] their tasks for the day and
her expectations" and that she "circulated continuously observing,
assisting, providing guidance or checking for understanding."
On the annual appraisal, Flippen-Casper remarked that Wertz
had formulated "an effective plan to clearly communicate behavior
expectations, consequences and rewards."
Items 2 and 3 of the Assessment of Potential reflects that
Wertz was rated "high" in both the categories of "Demonstrates
skill in oral expression" and "Demonstrates skill in written
expression," and Flippen-Casper also noted Wertz' strengths, her
"[a]bility to articulate well" and "[a]bility to organize groups,"
categories which would appear to be directly related to the
position related abilities measured in Item 15.
16. Inspires others to action; accomplishes goals by
having a positive influence on the behavior of others -
In connection with the October 1995, observation,
Flippen-Casper noted that "Students were active participants." In
the April 1996, observation, she said that "Students were involved
during the entire lesson. [Wertz] displayed very positive rapport
with her students. The students were very enthusiastic about their
In the annual appraisal, Flippen-Casper stated that "[Wertz]
provided opportunities for all students to participate, maximized
instructional time and students were rarely off task." "Students
were made to feel special and as a result their sense of self worth
increased." "[Wertz] developed a behavior management plan which was
well thought out and highly appropriate in its expectations for
fourth/fifth grade students. This plan placed an emphasis on
positive recognition and rewards to reinforce correct behavior."
"[Wertz] established a very healthy rapport with students."
The "low" assessment for this item is inconsistent with
Flippen-Casper's comment that one of Wertz' strengths is her
"[a]bility to organize groups."
22. Demonstrates fairness and understanding when working
with students and staff - no rating.
Wertz' annual appraisal says that she "demonstrated fairness
and consistency in the handling of student problems."
23. Evidences initiative in willingness to go beyond
work requirements - low average.
Wertz' annual appraisal says that she "enriched and expanded
DODDS required textbooks and supplemental materials through the use
of cooperative learning activities, writing projects, computer
assisted instruction and teacher made activities."
26. Considers new ideas and divergent points of view -
Wertz' annual appraisal notes that she "welcomed resource
educators into her room and followed through on their suggestions
27. Defines assignments and projects clearly - low
During the October observation as well as in the annual
appraisal, Flippen-Casper makes note of how Wertz had prepared a
comprehensive folder for substitute teachers which clearly spelled
out, day-by-day, all the necessary information regarding subject
areas, times, specials, recess and duty schedules. Flippen-Casper
remarked that Wertz' instructional outline was "detailed, well
organized, and indicated a thorough understanding of the DODDS
curriculum goals and objectives."
34. Pursues balanced program of self improvement -
Flippen-Casper testified that the reason she gave Wertz the forms for the ECP program was because she knew that Wertz was pursuing her master's degree.
Wertz' Requested Remedy
Wertz testified that she could no longer work with
Flippen-Casper in a productive management-union relationship and
wished to be transferred with her husband, who is also a DODDS
teacher, out of the situation. She requested to be placed on leave
with pay until the case is decided or a transfer is granted.
Discussion and Conclusions
Under the Authority's analytical framework for resolving
complaints of alleged discrimination under section 7116(a)(2) of
the Statute, the General Counsel has, at all times, the overall
burden to establish by a preponderance of the evidence that: (1)
the employee against whom the alleged discriminatory action was
taken was engaged in protected activity; and (2) such activity was
a motivating factor in the agency's treatment of the employee in
connection with hiring, tenure, promotion, or other conditions of
employment. Letterkenny Army Depot, 35 FLRA
113, 118 (1990)(Letterkenny). See also Federal Emergency Management Agency, 52 FLRA 486, 490
n.2 (1996). Where the respondent offers evidence that it took the
disputed action for legitimate reasons, it has the burden to
establish, by a preponderance of the evidence, as an affirmative
defense that: (1) there was a legitimate justification for its
action; and (2) the same action would have been taken even in the
absence of protected activity. Letterkenny,
35 FLRA at 118.
There is no dispute that Wertz was engaged in protected
activity and the Respondent had knowledge of such activity. A
preponderance of the evidence also establishes that such activity
was a motivating factor in giving Wertz a low assessment of
potential for the educator career program. This discriminatory
motivation is shown by: (1) the closeness in time between Wertz'
extensive protected activity from October 1995 up to the low
assessment on February 2, 1996; (2) the acting official's,
Flippen-Casper's, antagonism towards some of the protected
activity; and (3) the lack of legitimate reasons for the
The record, as set forth in detail above, reflects that,
beginning in October 1995, Wertz brought the bargaining unit's
concerns to Flippen-Casper regarding several alleged changes in
past practices. Wertz also sought clarification for the bargaining
unit concerning Flippen-Casper's handwriting policy. In late
November, Wertz filed a grievance over her counseling by
Flippen-Casper. In early December 1995, Wertz reported to
Flippen-Casper that the staff did not want to voluntarily
participate in a cultural diversity program which Flippen-Casper
had urged upon the staff as beneficial. In January 1996, Wertz
advised Flippen-Casper that the staff disagreed with her decision
not to hire a substitute and negotiated with Flippen-Casper over
the matter. And, on the day Flippen-Casper gave Wertz the low
assessment for the educator career program, Wertz had presented
Flippen-Casper a petition objecting to the termination of the
school secretary. Thus, during this period, Wertz was an active and
aggressive Union leader who could have been considered a thorn in
management's side. Cf. United States Forces Korea/Eighth United States Army,
11 FLRA 434, 436 (1983).
The most notable examples of Flippen-Casper's antagonism
towards Wertz' protected activity are as follows: When Wertz, in
October 1995, brought the bargaining unit's concerns to
Flippen-Casper relating to several alleged changes in past
practices, Flippen-Casper did not respond well to this criticism
and curtly dismissed Wertz' observations. She also was clearly
upset with the Union's response to the cultural diversity program,
stating that the Union had no right to take a poll and she would
re-poll the staff herself. In January 1996, when Wertz spoke to the
assistant superintendent in a legitimate Union capacity about
DODDS' policy on handwriting instructions, an issue which Wertz,
acting in her capacity as Union representative, had raised with
Flippen-Casper on several occasions, this bothered Flippen-Casper.
Flippen-Casper told Wertz that this made her (Flippen-Casper) look
bad. While not as direct, but noteworthy, are Flippen-Casper's
comments to Wertz during her mid-year appraisal regarding Wertz'
"inability to wear different hats" and Flippen-Casper's comment,
"When I wanted to be an administrator, I started to think
The evidence, as set forth in detail above, also shows that
the assessment of potential rating, concerning position related
abilities, is inconsistent with the ratings Wertz received on
numerous of the abilities during the rest of the school year. While
it is true that the overall ratings served different purposes, one
to judge her potential as an administrator, and the others, her
performance as a teacher, I agree with Counsel for the General
Counsel that it is inconceivable that, in appraising several of the
specific position rated abilities, Wertz' abilities were
adequate-to-stellar throughout the school year, except for that
period on or around February 2, 1996, following particularly heavy
Union activity on Wertz' part.
The Respondent's Defenses
The Respondent contends that the above incidents(6) represent personality conflicts and disagreements in management style between Flippen-Casper and Wertz, but do not support the charge of union animus. The Respondent claims that Wertz' protected activity played no part in Flippen-Casper's assessment, but was based on Flippen-Casper's observation of Wertz and a professional assessment of Wertz' potential to become an administrator.
As noted, Flippen-Casper testified that she had no animosity
towards the Union or its representatives and the assessment of
Wertz was not an attempt to get back at her for her Union
activities. Flippen-Casper said that she based her assessment on
her observation and contact with Wertz as a teacher and her
evaluation of Wertz' potential as an administrator. Flippen-Casper
stated that she rated Wertz differently as a teacher, using
different criteria, because a person can be a good teacher and not
a good administrator, and vice versa. According to Flippen-Casper,
many policies and practices must be reinforced as an administrator,
and Wertz appeared not to understand an administrator's role and
responsibilities. Flippen-Casper said she rated Wertz based on her
reaction to these policies and procedures, which, if she were an
administrator, she would have to reinforce and implement.
Flippen-Casper said that Wertz had a negative reaction to criticism
of her sitting during the "pop-in" visits and a negative reaction
to the cursive writing policy. She lacked the ability "to wear a
different hat, so to speak, and not think as a teacher, but to
think as an administrator." During Flippen-Casper's post-assessment
meeting with Wertz, Flippen-Casper also mentioned that Wertz'
communication with her was a problem, and there were times when
Wertz did not communicate with her at all. Flippen-Casper said that
she stood by her rating and would do it again.
Flippen-Casper says that what troubled her from Wertz' standpoint as a potential administrator was not Wertz' sitting down during class, but rather Wertz' "negative reaction" to the counseling for sitting during class. Flippen-Casper did not explain what Wertz "negative reaction" was, or in what manner her reaction to the counseling was, at the time, inappropriate. While it is obviously important that an administrator be able to give and receive criticism, the prime "negative reaction" of Wertz revealed in the record is that she filed a grievance concerning the counseling, which is clearly protected activity.
The second key example cited by Flippen-Casper of Wertz'
unsuitability as an administrator is that Wertz reacted negatively
to Flippen-Casper's handwriting policy. Flippen-Casper said she had
to reinforce her policy with Wertz and other teachers during
"pop-in" visits and Wertz reacted negatively. Wertz' "negative
reaction" to the handwriting policy, as shown by the record, was
that Wertz questioned Flippen-Casper, in her capacity as Union
representative, concerning whether Flippen-Casper's handwriting
policy was a change in past practice and whether the quality of the
students' handwriting would be reflected in the teachers'
evaluations, again clearly protected activity on Wertz' part.
With regard to Flippen-Casper's general criticism of Wertz'
not communicating with her, Flippen-Casper provided no specific
example of Wertz' refusing to speak to her. It is noted that
Flippen-Casper was upset with Wertz' communication when Wertz
contacted the assistant superintendent regarding the Union's
concern over Flippen-Casper's handwriting policy. Flippen-Casper
felt this made it appear that "I don't have good communications
with my staff."
Contrary to Flippen-Casper's testimony, I conclude, based on the entire record, that Flippen-Casper did not base her low assessment of Wertz' potential solely on her observation and assessment of Wertz' individual performance as a teacher applying for an administrative position, and that Flippen-Casper would not have rendered the same assessment even in the absence of the protected activity.
I conclude that a preponderance of the evidence establishes
that the Respondent violated section 7116(a)(1) and (2) of the
Statute, as alleged, by giving Deborah Wertz a low assessment of
potential for advancement in Respondent's educator career program
because Wertz engaged in protected representational activity on
behalf of the Union.
The General Counsel requests that the Respondent be ordered
to have a new assessment of potential completed by Wertz' previous
principal, who had ample opportunity to observe her work and who
apparently harbored no union animus, inasmuch as Flippen-Casper
testified that she would give Wertz the same rating again. Since
Wertz also testified that she can no longer work with
Flippen-Casper in a productive management-union relationship, the
General Counsel also requests that the Respondent be ordered to
give Wertz (and her husband), at her request, higher priority for
transfer than anyone else in the next round under the Respondent's
world-wide transfer program. The General Counsel states that this
would place Wertz in a position where she would feel free to
exercise her right to act as a Union representative.
The Authority recently discussed its approach to evaluating requests for nontraditional remedies in F.E. Warren Air Force Base, Cheyenne, Wyoming, 52 FLRA 149 (1996)(Warren) and Department of Veterans Affairs Medical Center, Phoenix, Arizona, 52 FLRA 182 (1996). In Warren, the Authority concluded that nontraditional remedies must satisfy the same broad objectives that the Authority described in United States Department of Justice, Bureau of Prisons, Safford, Arizona,35 FLRA 431, 444-45 (1990)(Safford). That is, assuming there are no legal or public policy objections to a nontraditional proposed remedy, the questions are whether the remedy is reasonably necessary and would be effective to "recreate the conditions and relationships" with which the unfair labor practice interfered, as well as to effectuate the policies of the Statute, including the deterrence of future violative conduct. Warren, 52 FLRA at 161; Safford, 35 FLRA at 444-45. As the Authority additionally noted in Warren, the above questions are essentially factual and therefore should be decided in the same fashion that other factual issues are resolved: the General Counsel bears the burden of persuasion, and the Judge is responsible initially for determining whether the remedy is warranted.
The Respondent established that Flippen-Casper's assessment played no part in the rating of not qualified reached by the ECP panel in March 1996, because, at the time, Wertz did not meet the basic educational requirement of a master's degree. Wertz received the degree in May 1996, and would have been eligible to reapply for the educator career program in subsequent months. However, Flippen-Casper's low assessment based on Wertz' protected representational activity and her expressed intention to "do it again" would have effectively prevented Wertz from being qualified for advancement through the program had she applied later. Therefore, I agree with the General Counsel that the Respondent should be ordered to have a new assessment of potential executed by a previous, qualified first line supervisor of Wertz, and that such assessment be accepted for the purposes of any new application she may file in the educator career program. I will not specify that the assessment be completed by "her former principal," as requested by the General Counsel, but will leave this assignment of work to the Respondent's discretion, noting that Wertz received "exceptional" yearly appraisals in the five years prior to 1996 and such assessment should be completed by a first-line supervisor in that time frame. I will also recommend that the Respondent expedite the evaluation and review of any new application Wertz may submit for the educator career program.
I will not recommend that Wertz (and her husband) be granted
highest priority consideration for transfer under the Respondent's
world-wide transfer program. As explained by the General Counsel,
this would involve giving Wertz and her husband consideration
before any other employee, including requests by teachers for
compassionate reasons, requests by teachers assigned only to
one-year areas, and employees requesting transfers pursuant to
settlement agreements. From a public policy standpoint, the General
Counsel has not persuaded me that Wertz' circumstances demand
placement ahead of all employees in these categories. Nor do I find
that the remedy, essentially involving a transfer of the employee
to another location, is reasonably necessary and would be effective
to "recreate the conditions and relationships" with which the
unfair labor practice interfered, as well as to effectuate the
policies of the Statute, including the deterrence of future
violative conduct. The violative conduct occurred at the Giessen
Elementary School under the supervision of Principal
Flippen-Casper. A traditional cease and desist order, in addition
to the above remedy, would be the most effective in recreating the
conditions and relationships and deterring future violative conduct
at this installation.
Based on the above findings and conclusions, it is
recommended that the Authority issue the following Order:
Pursuant to section 2423.29 of the Federal Labor Relations
Authority's Rules and Regulations and section 7118 of the Statute,
it is hereby ordered that the Department of Defense Dependents
1. Cease and desist from:
(a) Lowering Deborah Wertz' assessment of potential
for the educator career program, or otherwise discriminating
against her in connection with hiring, tenure, promotion, or other
conditions of employment, because she engaged in protected activity
on behalf of the Federal Education Association.
(b) In any like or related manner, interfering with,
restraining, or coercing its employees in the exercise of their
rights assured by the Federal Service Labor-Management Relations
2. Take the following affirmative action in order to
effectuate the purposes and policies of the Federal Service
(a) Upon request of Deborah Wertz, have a new
assessment of potential completed by a previous, qualified first
line supervisor of Wertz and accept such assessment in connection
with any new application she may file for the educator career
(b) Expedite the evaluation and review of any new
application Deborah Wertz may submit for the educator career
(c) Expunge from official files all copies, and all
references to, the assessment of potential for Deborah Wertz which
was completed by Ora C. Flippen-Casper on February 2, 1996.
(d) Post at its facilities at Giessen Elementary School
copies of the attached Notice on forms to be furnished by the
Federal Labor Relations Authority. Upon receipt of such forms, they
shall be signed by the Superintendent, Department of Defense
Dependents Schools, Hessen District, and shall be posted and
maintained for 60 consecutive days thereafter, in conspicuous
places, including all bulletin boards and other places where
notices to employees are customarily posted. Reasonable steps shall
be taken to ensure that such Notices are not altered, defaced, or
covered by any other material.
(e) Pursuant to section 2423.30 of the Authority's
Rules and Regulations, notify the Regional Director, Chicago
Regional Office, Federal Labor Relations Authority, in writing,
within 30 days from the date of this Order, as to what steps have
been taken to comply.
Issued, Washington, DC, March 17, 1997.
GARVIN LEE OLIVER
Administrative Law Judge
NOTICE TO ALL EMPLOYEES
POSTED BY ORDER OF THE
FEDERAL LABOR RELATIONS AUTHORITY
The Federal Labor Relations Authority has found that the
Department of Defense Dependents Schools violated the Federal
Service Labor-Management Relations Statute and has ordered us to
post and abide by this notice.
We hereby notify our employees that:
WE WILL NOT lower Deborah Wertz' assessment of potential for the
educator career program, or otherwise discriminate against her in
connection with hiring, tenure, promotion, or other conditions of
employment, because she engaged in protected activity on behalf of
the Federal Education Association.
WE WILL NOT in any like or related manner, interfere with,
restrain, or coerce our employees in the exercise of their rights
assured by the Federal Service Labor-Management Relations
WE WILL, upon request of Deborah Wertz, have a new assessment of
potential completed by a previous, qualified first line supervisor
of Wertz and accept such assessment in connection with any new
application she may file for the educator career program.
WE WILL expedite the evaluation and review of any new
application Deborah Wertz may submit for the educator career
WE WILL expunge from official files all copies, and all
references to, the Assessment of Potential for Deborah Wertz which
was completed by Ora C. Flippen-Casper on February 2, 1996.
Date: _____________________ By: _________________________
This Notice must remain posted for 60 consecutive days from the
date of posting and must not be altered, defaced or covered by any
other material. If employees have any questions concerning this
Notice or compliance with any of its provisions, they may
communicate directly with the Regional Director, Chicago Regional
Office, Federal Labor Relations Authority, 55 West Monroe, Suite
1150, Chicago, IL 60603-9729, and whose telephone number is: (312)
1. Wertz was the main witness for the General Counsel and Flippen-Casper was the primary witness for the Respondent. There were few differences in their testimony concerning the chronology of events. Flippen-Casper mainly differed with Wertz in broad terms over the purpose or significance of the events. I found Wertz' testimony concerning the details of the various meetings to be forthright and direct and have credited her testimony.
4. On December 12, 1995, the Union filed a pre-charge notice of intent to file a unfair labor practice charge concerning the December 6 meeting. The notice reflected that a copy was designated for Flippen-Casper, but there is no evidence that she received it. On February 8, 1996, the Union did file a charge with the Chicago region (CH-CA-60422) over the December 6 meeting. An agent of the FLRA General Counsel came to the school to investigate the case in late February or early March 1996 and interviewed Flippen-Casper, among others. The charge was withdrawn on May 17, 1996.
5. On March 11, 1996, the Union filed an unfair labor practice charge against the agency concerning the "bad banana" exercise. The charge was withdrawn on May 17, 1996 (CH-CA-60483).
6. The Respondent established that the three unfair labor practice charges referred to herein were filed after the
February 2, 1996, assessment, and there was no evidence that Flippen-Casper had knowledge of the December 12, 1995, pre-charge in CH-CA-60422.