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Continued form page 104 (29946-I_partI.htm)

Dec. No. 29946-L

The District's administrators demonstrated hostility to Complainant's concerted union activity by the manner in which they responded to Complainant at the time that he engaged in his concerted union activity, as well as by the manner in which they reacted to Complainant after he had engaged in this activity. These reactions include otherwise inexplicable hostility and disparate treatment.

In their testimony, the District administrators displayed evasiveness, inconsistency and selective memory regarding Complainant's grievances and the "legitimate" reasons for their conduct towards Complainant. Given this evasiveness, an inference of hostility to said grievances must be made. City of Racine, Dec. No. 28673-A (Honeyman, 1/97).

On June 10, 1998, Respondent, by its agents Knaack and Dodd, decided to recommend the layoff of Complainant and, on June 23, 1998, Respondent, by its School Board, accepted this recommendation. The decision to recommend Complainant's layoff and the acceptance of this recommendation was motivated, in part, by hostility to Complainant's concerted union activity. Subsequently, Respondent hired a 100% FTE French teacher. Respondent's decision to not accept Complainant's application for this 100% French position was motivated, in part, by hostility to Complainant's concerted union activity. By this conduct, Respondent has violated MERA.

Knaack's testimony at the arbitration hearing and before the Examiner demonstrates that Knaack's decision to recommend the layoff of Complainant was motivated by hostility to Complainant's concerted union grievance activity. Dodd's acceptance of Knaack's tainted recommendation imputes illegal motivation to the School Board. Under Commission law, the evidence of Knaack's hostility is sufficient to establish that Dodd's recommendation of Complainant's layoff and the School Board's approval of the same was motivated, in part, by hostility toward Complainant's protected, concerted activity. See Milwaukee County, Dec. No. 27279-A (Gallagher, 12/92)

Knaack's attempts to deny that Complainant's grievances were a factor in his recommendation are nonsensical. Additionally, his denials were provided after the District's attorney had an opportunity to instruct Knaack on the status of the law.

Knaack and/or Sheehan demonstrated their hostility to Complainant's MERA protected activity by assigning Complainant to a IMC study hall in January of 1998; issuing a memo to IMC supervisors; singling out Complainant for enforcement of the IMC memo; displaying hostility to Complainant when Complainant requested a receipt acknowledging that he had returned his teaching contract; and failing to automatically increase Complainant from an 80% to a 100% FTE when it became known that an additional French section was available.

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Knaack and/or Sheehan displayed hostility to Complainant's MERA protected activity in their reactions to Complainant's assertion of a contractual right to be treated in the same manner as other similarly situated employees and to Complainant's announced intent to file grievances. These reactions include responding to Complainant's complaints of disparate treatment in an unreasonable manner; Knaack's comment "You coming in here yesterday like you did was unprofessional," which comment can only be construed to mean that Complainant was unprofessional by engaging in grievance activity; Knaack's decision to post a 30% French position on June 1, 1998; Sheehan and Knaack's conduct towards Complainant on June 2, 1998; the issuance of the June 3, 1998 letter of reprimand; and Knaack's decision to recommend the layoff of Complainant.

The testimony of Dodd, Knaack and Sheehan regarding the deliberations for the staffing decisions made in the spring of 1998 is not credible. It is more likely that the following sequence occurred: Sheehan automatically assigned Complainant to the additional French section, per District practices; no other administrator was aware of this assignment until Complainant pointed out to Sheehan the discrepancy between the assignment of the additional French section and Complainant's 80% contract; Knaack was surprised to learn from Sheehan that Complainant had been assigned the additional French section; Knaack and Dodd decided on May 18, 1998, that they would use this opportunity to show Complainant that they had the power to make things difficult for Complainant if he crossed them by filing grievances asking that they be disciplined; after mulling things over, Knaack and Dodd decided to prove to Complainant that they could make things difficult by posting a 30% French position; neither discussed using Article 32(I) because they did not know of its existence; Knaack and Dodd were disappointed that no one applied for the 30% posting; they then looked at the contract to find a way to get rid of Complainant; and, after checking with legal counsel on June 10, 1998, decided to short-cut the posting and apply the newly discovered

Article 32(I).

Sheehan's explanation as to why he entered Complainant's name on the Master Schedule is not credible, on its face, and is inconsistent with Sheehan's subsequent conduct. This explanation was fabricated in order to be a "team player" with Dodd and Knaack.

Knaack's assertion that the Master Schedule is a rough draft is contradicted by other evidence, including the note that Sheehan placed on the Master Schedule, and the fact that the actual 1998-99 Master Schedule is virtually the same as the Master Schedule that was posted in May of 1998. Knaack's evasive and irrational responses as to why he did not raise Complainant to 100% FTE between May 18 and May 27, 1998 establish that his purported reasons are pretextual.

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On May 28, 1998, Complainant met with Knaack and attempted to carry on a calm, reasonable conversation, but Knaack flew off the handle. Knaack acknowledges that, at that meeting, Complainant indicated that he would be filing grievances if Complainant did not get a full-time job and if Sheehan did not apologize to Complainant. Knaack's repeated negative inferences in C-31 to Complainant's communication to him that Complainant would file a grievance establish Knaack's hostility toward Complainant's concerted union activity. State of Wisconsin, Dec. No. 27511-A (McLaughlin, 4/93); Richland County,

Dec. No. 26352-A (Schiavoni, 7/90)

Respondent implies that Complainant ignored Sheehan's instruction to return to the IMC. This is not the case. Consistent with established practice of interacting with an administrator, Complainant explained why he was in the office.

On June 1, 1998, Knaack posted a 30% French position, rather than offer the available French section to Complainant. This posting is inconsistent with the prior practices of the District and violated Article 12(D) of the collective bargaining agreement. There is no reasonable, good faith explanation for why Knaack did not discuss the 30% posting with Solsrud, the Chair of the Foreign Language Department. The needs of the French program could have been met with a 20% posting.

If Knaack were legitimately concerned about Complainant's conduct, then by the end of the June 1, 1998 encounter, Complainant would have been advised that he was not behaving appropriately. Respondent did not even attempt to articulate a valid business reason for adding two supervisions to the French posting. For example, Respondent did not offer any financial analysis of the difference in cost between hiring an aide to supervise versus paying a teacher. All of the alleged legitimate business reasons for the 30% posting are, in fact, after-the-fact pretexts to conceal illegal motives.

The decision to post a 30% French position on June 1, 1998, rather than to give the extra French section to Complainant, was an attempt by Knaack and Dodd to either constructively discharge Complainant, or to force Complainant to submit and not file a grievance. The only factor that could have motivated the decision to post the 30% posting and to not give Complainant the 100% French position was hostility toward Complainant's MERA protected activities.

Past instances of illegal conduct and a discriminatory motive can sometimes be relied upon to shed light on subsequent conduct. City of Racine, Dec. No. 30060-A (Greco, 2/01). Thus, the 30% posting provides support to Complainant's contention that when Knaack and Dodd decided to lay off Complainant, a pattern of illegal conduct was repeated.

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Dodd and Knaack had previously misrepresented the reasons for the 30% posting. Dodd's inconsistent testimony on why the posting was at 30% indicates that Dodd gave false testimony regarding the decision to post the 30% position and conspired with Knaack to destroy Complainant's career at the District. If a stated motive is discredited, it may be inferred that the true motive is an unlawful motive that the respondent seeks to disguise. Northeast Wisconsin Technical College, Dec. No. 28954-B (Nielsen, 8/98).

In the prior arbitration hearing, Knaack testified contrary to his testimony in this hearing and flatly denied that he had decided to post the 30% position so that Complainant could not be considered for the vacant position. As Arbitrator Greco stated in a prior Award involving the District, lying under oath at an arbitration hearing is a very serious offense that cannot be rewarded in any fashion.

During the June 2, 1998 meeting, Complainant was asserting his contractual right to be treated like any other similarly situated employee. This meeting was nothing more than an argument that had been initiated by Knaack to try to intimidate Complainant as Complainant was asserting his contractual rights. Knaack's conduct at this meeting was completely inappropriate.

Given Knaack's virtually nonexistent credibility as a witness, the letter of reprimand grossly misrepresents what occurred at the meeting of June 2, 1998. Given Gilmore's acknowledgement that she felt pressure to be a member of the administrative team; the possibility that someone asked her to document the event; the inconsistencies between Gilmore's deposition statements, her contemporaneous note, and her testimony concerning the June 2, 1998 event, her contemporaneous note must be discredited as unreliable and inaccurate. Sheehan's contemporaneous note does not reference that Complainant made a statement that Knaack and Sheehan had made their bed and would now have to lie in it. The credible evidence demonstrates that Complainant did not make such a statement.

Complainant told Knaack and Sheehan "These things will come back to you in the course of time." Complainant established that the meaning of this was Complainant was going to file a grievance if Knaack went through with his plans to treat Complainant disparately. Complainant's message that he was going to file a grievance constitutes protected union activity.

If, as Knaack testified, Knaack considered Complainant to have said things violently, to become unglued and that Complainant's temper was uncontrolled on June 2, 1998, it would follow that Knaack would have feared Complainant on June 2, 1998 and would have taken precautions based on this fear. Knaack, however, denies that he had fear on June 2, 1998 and claims that his fear of Complainant occurred after June 2, 1998.

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On June 2, 1998, Knaack did not take any precautions, e.g., no Police Officer escorted Complainant from the premises and Complainant was permitted to continue his teaching duties. The fact that Knaack only issued Complainant a letter of reprimand establishes that the June 2, 1998 meeting was not the momentous event that Knaack now recalls.

At the time that Complainant was engaging in the alleged "inappropriate" behavior, neither Knaack, nor Sheehan, advised Complainant that the behavior was inappropriate. Knaack's testimony that he did not consider suspending Complainant for his alleged misconduct, establishes that the encounters do not justify terminating Complainant's employment.

Knaack's testimony regarding the alleged threats and his reaction thereto is false and self-serving and cannot be credited. The events of June 2, 1998 do not warrant taking away Complainant's livelihood, when, according to Knaack, they did not warrant a one-day suspension.

Neither Complainant's relationship with Berns, nor his suit against Soto and Martin, justified Complainant's nonrenewal. Thus, it must be concluded that Knaack had no problem with Complainant's continued presence at the Junior High.

Knaack's claimed "reservations" about Complainant are not logical and do not provide a legitimate basis for preventing Complainant from becoming a 100% FTE teacher. Moreover, the May meeting in which Dodd claims to have been told that Knaack had reservations about increasing Complainant to a 100% FTE never took place. This meeting was fabricated to conceal the fact that Dodd and Knaack had rescinded Sheehan's decision to assign Complainant a fifth section of French.

Prior to Complainant's lay off, Dodd and Knaack demonstrated a pattern of conduct of using pretext to hide their true motives for acting against Complainant. If a respondent's stated motives for its conduct are discredited, it may be inferred that the true motive is an unlawful one. A finding of pretext may itself be proof of illegal motive. Northeast Wisconsin Technical College, Dec. No. 28954-B (Nielsen, 8/98).

Given the language of Article 10(F) and Knaack's pretext that he wanted additional supervision, the grievance filed on June 5, 1998, surely must have appeared to be a loser. The decision to lay off Complainant was an effort to dispose of the June 5, 1998 grievance. Indeed, at the School Board hearing, the District's attorney attempted to persuade the UniServ Director that the June 5, 1998 grievance was moot. Although the UniServ Director did not find this argument to be persuasive, the effect of the stipulated issue that was presented to the Arbitrator had the effect of disposing of the June 5, 1998 grievance. The timing of the layoff decision, as well as the totality of the circumstances surrounding this decision, gives rise to the inference that the layoff decision was motivated, at least in part, by anti-union animus.

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At hearing Dodd provided many reasons for recommending Complainant's layoff, including that Complainant was not a team player; Complainant alienated other staff; the climate at the Junior High was not what is should be because of Complainant's presence; Complainant had to have his way, and if Complainant did not have his way, then he would do everything in his power to have his way; Complainant's encounters with Knaack and Sheehan in late May and early June, 1998; FYI notes from faculty; and the Soto-Martin lawsuit. These reasons were not communicated to Leonard when she met with Dodd prior to June 23,1998; or to Complainant, LaBarge or Coffey on June 15, 1998; or to the School Board.

Leonard, who was President of the District's School Board at all times relevant hereto, testified that she was provided with only one reason for the layoff, i.e., that Complainant had been initially hired from a small pool of applicants. If Dodd had good faith reasons to layoff Complainant, then there is no innocent explanation as to why he did not provide these reasons to the School Board.

Dodd's failure to provide these reasons at that time demonstrates that Dodd knew full well that the layoff was pretextual and that Dodd was seeking to conceal from the School Board the true nature of his actions. If Respondent's stated motives for discharge are discredited, one may infer that the true motive for discharge is unlawful. Heartland Food Warehouse, 256 NLRB 940, 107 LRRM 1321 (1981).

Respondent offered no evidence of a policy or practice defining "small pool." The administrators did not define what the District considered to be a small applicant pool. Nor did Respondent provide any documentation that small pools were of concern, such as a process of tracking small applicant pools or that the size of applicant pools had previously been investigated prior to making staffing decisions.

The record is devoid of evidence that, prior to Complainant's Article 32(I) lay off, any District administrator had been concerned about the fact that a teacher was hired from a small applicant pool. Presumably, if a small applicant pool were of such concern, the District would have taken advantage of its contractual authority to non-renew those teachers when teachers were hired from a small applicant pool. To claim an on-going concern about small applicant pools regarding part-time teachers, but to not claim the same concern for full-time teachers is arbitrary. The stated concern over the small applicant pool is pretextual.

Sheehan testified that he did not know the size of the applicant pool at the time that Complainant was hired and only learned of the size later on. Knaack, who was involved in hiring Complainant and, thus, would have knowledge of the size of the applicant pool, denied bringing up the size of the applicant pool. Dodd testified that he did not look at Complainant's personnel file or his original application. Thus, Dodd would not have known about the size of the applicant pool. It is likely, therefore, that Owens and Hazaert were in a meeting with

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Knaack and Dodd and fabricated an innocent sounding basis for laying off Complainant, i.e., the small size of the applicant pool.

If Respondent were truly concerned about the small size of the applicant pool, then it would have moved to non-renew Complainant prior to June of 1998. Inasmuch as the size of the applicant pool could not have changed from the time of Complainant's hiring, this situation is analogous to Green Lake County, Dec. No. 28792-A (Nielsen, 4/97).

Dodd was compelled to assert a concern about applicant pool size to provide a plausible explanation to the School Board or some other entity. In fact, his asserted concern was pretextual and intended to conceal his illegal act of retaliating against Complainant for filing the October 29, 1997 grievance.

Knaack offered, as a reason for the Article 32(I) layoff, that he was looking for more supervision, but then was forced to acknowledge that the 100% French position would not provide more supervision. The impossibility of his rationale demonstrates pretext. Knaack's various other rationales were fabricated to sound good, but were not truthful.

Dodd testified that, prior to May 28, 1998, he did not have knowledge of anything that Complainant had done that would prevent Complainant from becoming a 100% FTE teacher. Thus, Dodd's testimony that he had previously heard from Knaack that Knaack had the reservations alleged by Dodd is not credible.

Respondent's allegations that Complainant was responsible for a poor climate at the Junior High school and was not a team player are rendered irrelevant by the evidence that the administrators wanted Complainant to continue at the Junior High. Respondent's allegation that Complainant was responsible for a poor climate at the Junior High is contradicted by the evidence that Complainant would have accepted a public apology from Soto accompanied by an admission that the allegations against him were false in lieu of pursuing his legal rights through litigation. The District had knowledge of this, but did not recommend this resolution. Nor did it take any other steps to resolve the dispute between Soto and Martin.

No administrator provided Complainant with notice that his action of suing Soto and Martin was not justified. Dodd never explained why he considered it unreasonable for Complainant to sue Soto and Martin. Dodd's claim that it was unreasonable to sue Soto and Martin is a smokescreen to cover up Dodd's own abysmal failure to take any steps whatsoever to resolve what Dodd knew, prior to filing the lawsuit, was a serious situation.

Heller and Pietsch are the wives of Chris Heller and Rich Pietsch. Complainant had spoken with Sheehan about their husbands switching IMC study halls. Heller was a long-term personal friend of Soto and Martin. Heller surely felt indebted to Knaack since Knaack had

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hired her husband to teach 15% FTE since it is never necessary to hire a teacher to teach one class.

The FYI notes do not confirm anything. They are merely the opinion of several teachers, some of whom had reason to resent Complainant for purely personal reasons and Knaack knew this.

Had the administrators investigated the FYI notes, they would have learned that Heller's teaching abilities had not been compromised in any way by concerns about Complainant and that none of her fellow teachers had indicated to her that their teaching has been compromised. Heller's testimony establishes that her concerns regarding Complainant are irrational.

Knaack and Dodd's claimed belief that teachers were concerned that Complainant would sue them is not credible. None of the FYI letters indicated a fear of being sued. When people legitimately fear that they may be sued, what they really fear is the financial harm that might come to them. The Junior High teachers knew full well that whatever might happen, the District would bear all the financial burdens on their behalf.

The administrator's failure to investigate either the FYI notes, or their perception of a bad atmosphere, indicates that they were totally unconcerned about these matters. Neither Dodd, nor Knaack, truly believed that the fears expressed in the FYI letters were justified since neither of them took any actions that would be consistent with such beliefs. The FYI notes are unsubstantiated hearsay and, as such, may not be relied upon to justify the layoff decision.

Dodd's responses to questions about the FYI notes were "cute." When witnesses give "cute" answers to questions, Examiners may use such behavior to discredit the testimony. City of Stevens Point, Dec. No. 28708-B (Shaw, 1/97).

Respondent's repeated assertion that the FYI's were an important consideration in Complainant's layoff is rebutted by the evidence that Knaack did not show Dodd these FYI's as they came in. Rather, as Dodd testified, he saw most of them at the June meeting in which he decided to layoff Complainant. There is no credible evidence that Dodd was aware of the encounters that Complainant had with Knaack and/or Sheehan until he was shown the reprimand letter of June 3, 1998.

Knaack's failure to discipline Complainant for the note establishes Knaack knew full well that Soto and Martin misrepresented the circumstances surrounding the note. Knaack's testimony as to why he failed to grant Complainant's request for a meeting with Maki, Soto and Martin establishes that he knew full well that they had something to apologize for and he

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was protecting them from having to apologize. Knaack's repeated testimony that, in Knaack's mind, Complainant wanted Soto and Martin to apologize is an inadvertent concession by Knaack that Soto and Martin's actions were appropriate.

Knaack's refusal to investigate the Maki note; Knaack's clear belief that Soto and Martin had something to apologize for; Knaack's incredible testimony that Soto and Martin's complaint against Complainant was not motivated by the French room dispute; Knaack's knowledge that Maki did not want to complain about the note; and the fact that Respondent did not call Maki, Soto and Martin as witnesses, establishes that there was no justification at the time of the note to discipline Complainant. For Dodd to rely upon this note to layoff Complainant, overruling Knaack's contemporaneous decision that discipline was not appropriate, is absurd.

Respondent argues that Dodd ultimately believed that Complainant's pursuit of the dedicated French classroom demonstrates his stubborn and obstinate attitude. First, no administrator ever put a note in Complainant's file that he was stubborn and obstinate. Second, Dodd never objected to the manner in which the French room issue was resolved. Given that the existing classroom situation was patently unfair, Dodd's claim that Complainant's actions forced Dodd to intervene in the French room issue is completely self-serving and incredible.

Dodd states that Complainant's insistence on having his own French room when he had the least seniority in the Foreign Language Department is evidence that Complainant is not a team player. If seniority was a valid reason to maintain the status quo, why did Bouffleur, a rookie, teach all five classes in Room 11, while veteran teachers Haverly and Soto had to travel from room to room?

On July 17, 1997, Knaack made Room 10 the French room by moving German to Room 11 and Spanish to 7, 8, and 9. Thus, Spanish teachers had no business complaining about the fact that French would be in Room 10. Respondent's contention that Complainant was not a team player when he sought a dedicated French room is completely belied by the fact that Knaack continually pandered to the desires of the French teacher, while ignoring the needs of the French-teaching members.

Knaack and Dodd's claims that Complainant was laid off because of the FYI's; that Complainant was not a team player; that Complainant was responsible for an "atmosphere of concern;" and that Complainant's lawsuit created a negative impact are without sound basis in the record. Thus, these claims must be pretextual.

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Many of the "concerns" relied upon the administrators to justify Complainant's layoff were known May 18, 1998, when Dodd acknowledges that he did not see any significant negative consequences if Complainant had been offered a 100% position, and on June 1, 1998, when, by the administrators' own testimony, the ideal situation would be for Complainant to remain at 80%. The lack of any significant change in these circumstances between May 18, 1998, and June 10, 1998, indicates that these reasons for the layoff are pretextual.

Inconsistencies in the testimony of Dodd and Knaack establish that filling the 100% position with the most qualified candidate possible was not their motivation in laying off Complainant. Having discredited their avowed motive, it may be inferred that their true motive was an unlawful one that Respondent seeks to disguise.

Under the 30% position, the applications were to be received by June 19, 1998. Barely half way into this posting period, the decision was made to lay off Complainant and to post a vacancy in a 100% French position. Jaworski's testimony confirms that this conduct violates District policy.

Respondent asserts that, because there were no viable applications, Knaack decided to close the posting. Respondent attempts to gloss over a pivotal issue, i.e., that Knaack had no bona fide reason to close the position on June 10, 1998, when it was to remain open until

June  19th. Knaack was unable to give a credible explanation for his sudden abandonment of the 30% posting because there is no credible explanation. The decision to close the posting early confirms that Dodd and Knaack were simply scurrying around and attempting to find any way to get rid of Complainant.

Respondent's reliance upon Complainant's allegedly inappropriate conduct to justify his layoff gives rise to the clear inference that Respondent wanted to prevent a repeat of this conduct. Thus, under arbitral precedent, the layoff could be construed to be discipline and, by taking this position, Respondent is improperly taking a position inconsistent to that taken in the prior arbitration.

There is no rational explanation for why Dodd would wait until June 10, 1998, to invoke Article 32(I) and layoff Complainant. Dodd's own testimony demonstrates that, until shortly before June 10, 1998, he did not know what Article 32(I) meant and that he asked Owens and then the District's attorney to interpret Article 32(I).

The administrators that claimed prior use of Article 32(I) are lying. Dodd never used the term "spirit of 32(I)" prior to the 1999 arbitration hearing, which establishes that this term was fabricated for the purpose of wriggling out of the many inconsistencies in his testimony regarding the use of Article 32(I). Dodd's use of Article 32(I) to justify Complainant's lay off is pretextual and was intended to disguise the fact that Dodd was disciplining Complainant for filing grievances.

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It is a prohibited practice to consider protected union activity in making a layoff decision, even if the activity in question took place during events that contained activity that was not protected. As Examiner Shaw stated in Glendale-River Hills School District, Dec. No. 26045-B (9/91), MERA is not intended to protect only reasonable, polite employees and it is often the more aggressive and abrasive employees that may be most in need of protection. Examiner Shaw also found that when an employer that takes action against offending conduct that includes both protected and non-protected activity and describes the conduct in broad terms, it cannot escape liability by arguing that its action was based only on the non-protected activity.

All of Dodd's knowledge of the factors Dodd allegedly considered when he made the layoff decision came through Knaack. Thus, Dodd's actions were tainted by Knaack's illegal motives. Milwaukee County Medical Complex, Dec. No. 27279-A (Gallagher, 12/92). It must be concluded that the recommendation to the School Board was motivated, at least in part, by hostility toward Complainant's protected concerted activity.

Northeast Wisconsin Technical College, Dec. No. 28954-C (Meier, 3/99) and Green Lake County, Dec. No. 28792-A (Nielsen, 4/97) are particularly instructive. In each case, the employer was found culpable based upon the fact that it acted upon recommendations of its agents that were motivated, in part, by anti-union animus. Also highly relevant to this case is Milwaukee Board of School Directors, Dec. No. 27484-A (Burns, 7/93). In this latter case, the Examiner found the Principal to have committed a prohibited practice due to anti-union animus even though it was an administrator above the Principal that made the actual decision on the recommendation.

Respondent attempts to portray the recommendation to lay off Complainant as a decision that Dodd made on his own. At the arbitration hearing, Respondent argued that "School District officials" decided to lay off Complainant. This reference means that both Knaack and Dodd made this decision.

By arguing that only Dodd made the decision to recommend the layoff, Respondent is taking an inconsistent position to that taken in the Arbitration hearing. Such an inconsistent position is barred under the equitable doctrine of judicial estoppel. (cites omitted)

Dodd's hostility to Complainant's concerted union grievance activity is established by the fact that Dodd did not want the School Board to respond to Complainant's letter of September 9, 1997, because then the School Board would have heard from Complainant, without any filtering by Dodd; the fact that Dodd wanted Complainant to file a grievance so that Dodd, a defendant, would be judge and jury; the fact that, on the very day that Complainant filed his grievance, Dodd attempted to have Complainant disciplined for filing this grievance; Dodd's demeanor and conduct during the processing of this grievance,

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including the anger that he displayed to Complainant, his refusal to provide Complainant with a copy of the minutes of the Step 2 grievance meeting, and his gross misrepresentation of this Step 2 grievance meeting; and the timing of Dodd's recommendation that the District provide representation to Soto and Martin. Dodd's repeated denials that the October 29, 1997 grievance was not resented by Dodd or did not upset Dodd are inconsistent, self-serving, and not credible.

In the School Board's denial of the October 29, 1997 grievance, the School Board's attorney gave, as his first point, that many of the issues presented are not grievances as defined by the collective bargaining agreement. To advise that issues be handled via the contractual grievance procedure and then to assert that those issues are not grievable under the contract is the height of hypocrisy and bad-faith dealing.

Dodd's claim that he and Knaack had not discussed the October 29, 1997 grievance from January of 1998 until they made the decision to lay off Complainant is rebutted by his other testimony regarding discussions that occurred in the May, 1998 staffing meeting. Since Dodd lied about his May, 1998 conversation regarding this grievance, the only inference to be drawn is that the grievance did play a part in his decision to lay off Complainant. Town of Mercer, Dec. No. 14783-A (Greco, 3/77).

Dodd testified three times that, in his opinion, Complainant was willing to do anything in his power to get his way. Clearly, Dodd was hostile to Complainant's explicit message to Sheehan, Knaack and Dodd that he would file a grievance if they continued to treat him in a disparate manner. This is established by the fact that threatening to file a grievance, or filing a grievance, is the only power that Complainant had within the District.

By inserting the disciplinary letter in Complainant's personnel file, Dodd and Knaack were purposefully violating Complainant's Article 8(G) contractual rights. This purposeful violation establishes that Dodd's state of mind in early June was one of hostility toward Complainant's contractual rights.

Dodd was frustrated in early June because he was desperate to get rid of Complainant, but knew that he did not have just cause. By his own admission, Dodd was so determined to lay off Complainant that he was willing to put his own job in jeopardy. Common sense dictates that, if Dodd had acted in good faith, then he could not have put his own job in jeopardy.

State of mind is a circumstance that may be used by the trier of fact to prove hostile motive. Town of Mercer, Dec. No. 14783-A (Greco, 3/77). It must be concluded that Dodd made the decision to lay off Complainant under Article 32(I) regardless of whether or not it might later be ruled to be an action taken in bad faith.

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The fact that Dodd was willing to risk losing his job demonstrates that Dodd had a personal motivation to get rid of Complainant. The conclusion that Dodd was personally motivated to layoff Complainant is also established by the evidence that Dodd came to the Junior High to personally inform Complainant of the layoff; that, although he met with Complainant in Knaack's office, Knaack did not say anything; and that Dodd ended the meeting by telling Complainant to return his keys and stay off the premises.

It is not normal to have the District Administrator involved in such notification. For example, Solsrud informed Skadahl of the layoff. It is not evident that Skadahl was told to stay off the premises.

Dodd testified that one of the reasons for laying off Complainant was that Complainant demanded that Sheehan apologize. This testimony establishes that Dodd's decision to lay off Complainant was motivated, in part, by hostility toward Complainant's protected union activity.

Dodd's testimony that Knaack and Sheehan had advised Dodd that Complainant had threatened Knaack is cute and evasive. It is incredible that, upon hearing that administrators were threatened that Dodd would not, as claimed by Dodd, fail to inquire about the details of the threat. Complainant asserts that Knaack, and Dodd by proxy, felt threatened by the events of June 2, 1998, in two ways, i.e., that Complainant would file a grievance or prohibited practice claim, due to the illegal actions that Dodd and Knaack had previously taken in deciding to post a 30% position and that Complainant was somehow a challenge to their personal authority in that he was not going to submit to their illegal bullying.

Dodd and Knaack undoubtedly felt threatened by Attorney Lister having telephoned the District's attorney, Cari Westerhof, to state his intention of filing a grievance if Complainant was denied a 100% FTE contract for the ensuing year. As documented in the Bill of Costs, on

May 29, 1998, Westerhof made a telephone attempt to Knaack regarding the same.

Dodd's testimony is characterized by mistruth overall and, thus, his testimony regarding lawful motivations must be discredited. Dodd's principal motivation to get rid of Complainant was that he filed a grievance against Dodd, Knaack, and Sheehan on October 29, 1997.

The School Board ignored the obvious interest of the 47 individuals that spoke on behalf of Complainant; voted midway through the meeting of June 23, 1998, to layoff Complainant without discussion; purposely concealed the step at which the layoff occurred when it never mentioned Complainant by name and used the term "contract adjustment," rather than layoff; and approved the Administration's recommendation without discussion. The conduct of the School Board at the June 23, 1998 meeting, establishes that it had an illegal motivation to layoff Complainant.

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The School Board members had a duty and an obligation to inform themselves of the issues involved. The only conclusion to be drawn from the School Board's failure to discuss what was obviously a controversial recommendation is that the School Board had come to an agreement prior to the meeting of June 23, 1998, in violation of the open meeting laws, and that the School Board was seeking to conceal the true motivation for the layoff.

The minutes do not reflect statements made by Complainant's supporters; mischaracterize Complainant's supporters as students; and mischaracterizes Complainant's supporters as speaking on behalf of the French program. Complainant's supporters were not there to address the French program; they were there to tell the School Board that they did not want Complainant to be terminated. By approving these minutes, the School Board concealed the true nature of Complainant's support; attempted to conceal the School Board's deliberations from the public; and evidenced a knowledge that School Board members knew that they were acting illegally, but believed that they could act without detection.

The fact that Dodd felt compelled to notify the School Board members ahead of time and his testimony that he gives School Board members a "heads up" on controversial matters demonstrates that Complainant's layoff was not a routine business decision of the type rubber-stamped by the School Board. Leonard's deposition statements demonstrate that Complainant's layoff was the only employment action that she recalled Dodd specifically addressed.

In summary, Complainant has established that Complainant was engaged in concerted union activity protected by MERA; that Knaack and Dodd were hostile to this activity; and that the administrators' recommendation that Complainant be laid off and the School Board's acceptance of this recommendation was motivated, in part, by hostility to this protected activity. The District not only committed a prohibited practice when it laid off Complainant, but it also, committed a prohibited practice when it failed to give fair consideration when Complainant applied for the 100% position.

Dodd's testimony regarding the likelihood that Dodd would get the 100% position is a jumble of evasion, self-contradiction, prevarication and attempts to reconcile his own irreconcilable assertions. Dodd's testimony that "There was every possibility in the world that [Mr. Mudrovich] would get [the one hundred percent position]" is completely discredited.

Dodd exerted control on the selection process for a 100% FTE French teacher in order to skew it against Complainant, while trying to give that process the surface appearance of objectivity. The selection team was biased against Complainant. The whole selection process was tainted to the extent that it is illegal.

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In violation of past practice, Dodd appointed the interview team and selected Hazaert, his right hand man, to lead the interview team. Dodd's testimony regarding his reasons for appointing Hazaert is evasive, self-serving, inconsistent and patently false. Hazaert was no more qualified to lead the interview team than the elementary principles, both of whom were removed from Complainant's situation.

Hazaert was present at various meetings involving Dodd and Complainant. As Dodd acknowledged, it was likely that Dodd had discussed the October 29, 1997 grievance with Hazaert. Hazaert knew that Dodd was hostile toward Complainant for having filed grievances because Dodd and Hazaert worked closely together; Hazaert had been present at the Step 2 grievance meeting of November 18, 1997; and Hazaert was likely present at other meetings in which Complainant's grievance and lay off was discussed. There is no way that Hazaert could not have known of Dodd's attitude toward Complainant or Knaack's ill will towards Complainant.

During the interview process, Hazaert took every occasion to exercise his discretion in a manner that was prejudicial to Complainant. The multiple instances of Hazaert's having misconstrued Complainant's statements during his July 8, 1998 interview remove any presumption of impartiality.

Dodd's demeanor at hearing and his testimony in general demonstrates that Dodd is the type of administrator who yells at his subordinates and chooses to personally dominate situations, as well as the people who work under him. Hazaert cannot be unaware of this and would know what Dodd expected of him.

Complainant's grievances did not cause Hazaert personal discomfort, but he knew that he would feel great personal discomfort if the selection team chose to select Complainant for the full-time French position. Hazaert was hostile by proxy.

Although there is no testimony concerning who had custody of Complainant's application prior to July 8, 1998, the only logical inference is that it was Hazaert. Thus, Hazaert gave disparate and discriminatory treatment to Complainant in that he prevented other team members from reviewing Complainant's application until the interview process. This concealment of Complainant's application skewed the interview process against Complainant.

Hazaert's testimony demonstrates that it is standard practice to add to an internal candidate's written application any information kept by the District in his/her personnel file. In his application, Complainant referenced his year-end evaluations and observation reports and, by such reference, had a legitimate expectation that these materials would be read and considered by the interview team. If Hazaert had given Johansen access to Complainant's evaluations and observation reports, then Johansen would have likely read those observation

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reports in full because, as his testimony demonstrates, he believed them to be a valuable tool. Solsrud also testified that it is always best to know how a candidate performed in the past.

By failing to pull these evaluations and observation reports, Hazaert violated District practices and discriminated against Complainant. The only possible causative factor for said bias was Hazaert's clear knowledge that his boss did not want Complainant to have the 100% French position.

Hazaert intentionally attached Complainant's letter of June 1, 1998, to his application for the 100% French position, or acquiesced to this attachment. Given the content and the June 1, 1998 date, Hazaert could not reasonably have concluded that this letter was in support of Complainant's application for the 100% position. This attachment was not a trivial matter and was intended to be prejudicial towards Complainant.

Hazaert states that the June 1, 1998 letter was submitted as part of Complainant's application for the 100% position. Other testimony demonstrates that Hazaert clearly recalled that, before the decision was made, he was instructed that this letter was not to be considered to be part of the application materials. Hazaert intentionally lied about believing that Complainant had attached the letter, which establishes that Hazaert is an untruthful witness.

Dodd skewed the interview process by personally arranging that Bouffleur be interviewed even though she had not applied for the vacancy in a timely manner. These arrangements were made after Complainant had been interviewed. Such conduct is particularly dishonest given that, on September 9, 1998, Dodd told the School Board that the interview team was not allowed to look at Complainant's performance evaluation reports because it would have skewed the process. Arranging for Bouffleur to be interviewed is inconsistent with Dodd's testimony that he told the interview team to follow standard procedures and to be fair.

By Hazaert's definition, the screening process must have been completed on or before July 8, 1998, the day on which Complainant was interviewed. Thus, Bouffleur must have been added to the interview list after the screening process. Hazaert lied under oath when he testified that, after all the applications had been received, the team then chose four candidates to interview. Hazaert knowingly acquiesced in the District's breaking its own rules when it accepted Bouffleur's late application for the 100% French position.

Hazaert's justifications for selecting Bouffleur were based upon false information, which Hazaert ought to have known to be false. Hazaert's testimony concerning the rationale for selecting Bouffleur and for not selecting Complainant is evasive, inconsistent, includes bold faced lies and is contradicted by the testimony of Solsrud and Johansen.

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Hazaert gave false testimony regarding his knowledge of Complainant's conflicts with Knaack in an attempt to convince the Examiner that he was not biased against Complainant by any prior knowledge of these disputes. Hazaert also gave false testimony regarding Knaack's criticisms of Complainant.

Hazaert's testimony cannot be relied upon as truthful. Hazaert's misrepresentation of the process by which Bouffleur was selected for the 100% position leads to the conclusion that Hazaert was biased against Complainant and skewed the process against Complainant.

Knaack testified that he believed that Hazaert, Solsrud and Johansen knew that Knaack had recommended that Complainant be laid off. Given their employment relationship, it is not credible to assume that they would ignore Knaack's wishes and arrive at a selection decision that was not tainted by that knowledge.

Johansen inferred from Hazaert's statements that Knaack would be biased. Solsrud assumed that Johansen had replaced Knaack because there had been conflict. Thus, Johansen and Solsrud knew that Knaack was opposed to selecting Complainant and, thus, the whole process of selecting a 100% FTE French teacher was tainted.

One of the themes in the Perceiver is "Focus." Hazaert's testimony demonstrates that, although Bouffleur was not a predict in "Focus," he repeatedly indicated that he was impressed by her "Focus." Hazaert attempted to explain the discrepancy. The record, however, demonstrates that Hazaert made up her perceived excellence on the Perceiver in the same manner that he made up Bouffleur's alleged familiarity with Dimensions in Learning and Effective Instruction. These claims were made up in an attempt to justify selecting Bouffleur per the instructions of Dodd. Hazaert's untruthfulness is also demonstrated by his evasiveness in responding to Complainant's questioning of whether or not Hazaert was normally involved in Foreign Language Department interviews.

At hearing, Hazaert recalled saying at the deposition that it was his recollection that a ballpark number of a half of dozen people were laid off under Article 32(I) and that he does not recall them to the same degree. In other testimony, Hazaert demonstrated that he was never able to point to any specific examples of the alleged Article 32(I) layoffs. Hazaert made up a recollection regarding the use of Article 32(I) in order to be a team player for Dodd.

Hazaert testified that he became aware of the October 29, 1997 grievance at the Step 2 grievance hearing and also testified that he first became aware of this grievance at a cabinet meeting. Hazaert's untruthfulness was an attempt to persuade the Examiner that he was not biased against Complainant because of the grievance because he was allegedly not involved in the grievance. Hazaert is Dodd's right hand man. Owens testified that often he, Dodd and Hazaert discussed things. It is likely, therefore, that Hazaert was more involved in discussions of the grievance than he led on.

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Hazaert's testimony that Johansen and Solsrud selected their top two candidates without having been informed of the Perceiver score is absurd because it means that there is no reason to administer the Perceiver. More importantly, this testimony is contradicted by Johansen's testimony that he knew the scores prior to the time that he picked the two candidates. Hazaert gave false testimony to bolster his assertion that the Perceiver score was not what was important and to conceal the fact that he had done something untoward regarding his scoring of Complainant's Perceiver.

Hazaert testified that he sent Complainant's and Bouffleur's Perceiver interviews to be scored by Gallup, but that no letters were exchanged when the Perceivers were submitted by Hazaert or returned by Gallup. This testimony is incredible on its face in that neither party would conduct business in this manner. For no letters to be exchanged, Hazaert must have instructed Gallup to not include a cover letter with the grading. Hazaert was attempting to conceal something.

Respondent knew that Complainant was challenging Hazaert's grading of the Perceiver score. Had everything been on the up and up, Respondent would have volunteered Gallup's scoring because it scored Complainant two points higher. Hazaert's testimony regarding the Perceiver does not pass the smell test.

At hearing, Hazaert claimed that he did not recall offhand who Complainant was referring to when he stated that a couple of teachers had poisoned the well, but that he knew at the time of the interview. In other testimony, however, Hazaert recalled that, in Complainant's interview response, Complainant indicated that the problem was with Berns, Soto and other staff. This conflicting testimony, as well as Hazaert's prior deposition statements and arbitration testimony, demonstrates that, at hearing, Hazaert pretended to no longer recall the details of Complainant's disputes and lied in order to conceal what he knew from the Examiner.

In stating that he found Complainant to be a marginal predict on the Perceiver, Hazaert, unreasonably, was making a subjective judgment about a test that is designed to be an objective tool. Hazaert testified that a Perceiver score of 35 could be a marginal predict. Inasmuch as 35 would be a very high score, Hazaert's testimony that Complainant is a marginal predict is contradicted by Johansen's testimony that a marginal predict is right on the edge. Hazaert wrote marginal predict on Complainant's test to justify his bias against Complainant.

Hazaert's testimony establishes that he made a negative judgment regarding Complainant based on the fact that he had a conflict with Berns. Hazaert also stated that the mere fact that an individual had a conflict means nothing. This conflicting testimony establishes that Hazaert testified falsely and was biased against Complainant.

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Dodd skewed the selection process by personally appointing Johansen. Although Complainant does not assert that Johansen is dishonest, Johansen's actual behavior during the interview process is not relevant to this argument. Of relevance is that Dodd assumed that Johansen had prior knowledge of Complainant's conflicts with Dodd and knew that it would be highly unlikely that Johansen would not be influenced by this knowledge.

Contrary to the assertions of Respondent, all interviewees were not asked the same questions and the structure was not the same. Bouffleur was not asked about her past use of Dimensions of Learning, despite Hazaert's claim that it was an important consideration in the interview process. Bouffleur was not asked because her application materials indicated that she had no real familiarity with Dimensions of Learning. The structure was not the same because Johansen and Solsrud were not allowed to see Complainant's application before his interview began.

Respondent's brief contains misstatements of fact and after the fact justifications for Complainant's layoff. Arguments based upon these misstatements include that Complainant was responsible for a bad relationship with Berns; that Complainant's "campaign" for a classroom dedicated to French was an on-going disruption for faculty members; that Sheehan rejected Complainant's room assignment proposal based on Complainant's statement that he was not willing to compromise; that Sheehan left the room assignments unchanged because Spanish teachers had more seniority; that Complainant asked Association Representative Coleman to mediate a dispute about room assignments; that Solsrud indicated that she could not resolve the issue; that Dodd asked Hazaert to discuss the issue with Knaack to see if a compromise could be reached; that Knaack could not make Room 7 the dedicated classroom because it belonged to Haverly; and that it was Knaack's idea to measure the rooms.

The District's attorney has intentionally misstated facts on key issues. By this conduct, the District's attorney had violated Wisconsin Supreme Court Rules of Professional Conduct, SCR 20:3.3(a)(1).

The record evidence does not support respondent's assertion that Maki had asked Complainant to follow school policy. Respondent introduced no testimony that Maki was upset about the note. By failing to reference crucial facts that occurred prior to the August 5, 1997 lawsuit, Respondent completely misrepresented Complainant's response to Soto and Martin.

Dodd knew full well that supervisors had authority to abuse their managerial discretion and make a teacher's life miserable via the observation and evaluation process. Sheehan recognized this fact when he responded to Complainant's request that someone else supervise Complainant by stating that he would not give Complainant "that gift." Dodd, in an extremely condescending manner, disregarded Complainant's legitimate concerns regarding the assignment of Sheehan as his primary supervisor.

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LaPorte's testimony that, on June 2, 1998, Complainant was clapping his hands and taunting Sheehan is inaccurate and/or an exaggeration. Sheehan did not make any reference to any clapping of hands.

Sheehan had no need to retreat into his office in order to escape Complainant. As his supervisor, Sheehan could have disciplined Complainant on the spot. By retreating, Sheehan demonstrated that he knew full well that Complainant was making a valid point and that Sheehan had treated Complainant disparately.

As Respondent states, Complainant testified that he went to see Sheehan to drive his point home for a third time. Respondent has omitted the fact that this point was that Sheehan was treating him differently from the way other teachers were being treated. This point was omitted because Respondent knew that this testimony showed that Complainant was engaging in protected union activity, i.e., asserting his contractual right not to be treated disparately.

Respondent misstates the issue before the Examiner in Cedar Grove-Belgium Area School District, Dec. No. 25849-A (Burns, 12/89). The instant case is distinguishable on the basis that there is a nexus between the unlawful conduct of the Principle and the decision of the Administrator; there is ample evidence that the Administrator harbors anti-union animus toward Complainant and the Administrator was a credible witness.

Milwaukee County, Dec. No. 28951-B (Nielsen, 7/98) is distinguishable on several bases, including that the employer had a valid business reason for its conduct; that to exempt the employee from weekend work would have caused unfair hardships to other employees; that the administrator was a credible witness; the employer did not summarily impose discipline; and that the employer acted in a manner that is consistent with past practice. Barron County, Dec. No. 26065-A (Burns, 1/90) may be distinguished on the basis that the administrator was a credible witness; there was no evidence the administrator was hostile toward employee's union activity; and the employer acted in a manner that is consistent with past practice.

Dodd's testimony confirms that the District violated Wisconsin's Open Meeting Laws during the process of laying off Complainant. Such a violation is sufficient to establish Respondent's unlawful motivation.

Complainant's prohibited practice claims are established by the intentional refusal of District personnel to present truthful testimony, as well as by the other record evidence. The Examiner should find in favor of Complainant and grant all remedies provided by law.

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Respondent

Complainant alleges that the District violated Sections 111.70(3)(a)1 and 3, Stats., by laying him off in his part-time teaching position with the District and, subsequently, hiring another individual for a full-time teaching position for which he had applied and was interviewed. Complainant bears the burden of proving these allegations by a clear and satisfactory preponderance of the evidence.

Notwithstanding Complainant's assertions to the contrary, the District did not violate any provisions of the Municipal Employment Relations Act (MERA). The employment actions taken by the District were based on non-discriminatory, work-related reasons, and the record clearly reflects that fact.

The District's legitimate employment decisions did not constitute discrimination in violation of MERA, and did not interfere with Complainant's rights under Section 111.70(2), Stats. Accordingly, Complainant's complaint should be dismissed in its entirety.

Section 111.70(3)(a)3, Stats., makes it a prohibited practice for a municipal employer to "encourage or discourage a membership in any labor organization by discrimination in regard to . . . tenure or other terms or conditions of employment." To prove a violation of this section, Complainant must, by a clear and satisfactory preponderance of the evidence, establish that:

1. Complainant was engaged in protected activities; and

2. Respondents were aware of those activities; and

3. Respondents were hostile to those activities; and

4. Respondents' conduct was motivated, in whole or in part, by hostility toward the protected activities.

When determining whether or not there has been unlawful discrimination, the WERC considers the totality of the evidence. The existence of legitimate business reasons for Respondent's conduct may rebut an inference of pretext or animus and the mere coincidence of adverse employment decisions and protected activity is an insufficient basis for a finding of a violation of Sec. 111.70(3)(a)3, Stats.

The record is devoid of any credible evidence that Respondent was hostile toward Complainant's concerted activity protected by MERA. Nor is there any evidence that the District's decisions to lay off Complainant from his part-time teaching position in French and,

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subsequently hire Ms. Bouffleur for a full-time position teaching French were motivated, in any part, by hostility toward Complainant's protected concerted activity, i.e., the October 29, 1997 and June 5, 1998 grievances.

Although Dodd and Knaack met on June 10, 1998, to discuss the possible layoff of Complainant, Complainant's protected activity was not discussed during this meeting. Knaack was not a decision-maker with respect to the layoff of Complainant and his feelings toward Complainant's protected activity are not material to the instant dispute.

Respondent's Board of Education made the decision to layoff Complainant based upon the recommendation of Superintendent Dodd. As Superintendent Dodd's testimony establishes, his recommendation was based solely upon non-discriminatory, work-related reasons. One of these reasons, i.e., Complainant's conduct during a number of confrontations with Knaack and Sheehan between May 28, 1998, and June 2, 1998, was, in Superintendent Dodd's own words "kind of the straw that broke the camel's back." Complainant's conduct during these confrontations was insubordinate and did not constitute concerted activity protected by MERA. Thus, the District's reliance upon such conduct is not evidence of hostility toward Complainant's protected concerted activity.

Respondent acknowledges "informing the municipal employer of one's intent to file a grievance" is also activity guaranteed under Sec. 111.70(2), Stats. Richland County, supra. However, merely referring to the grievance process does not transform otherwise unprotected activity into protected activity. Actions may be so opprobrious as to be unprotected (Hotel St. Moritz, 105 LRRM 1116 (NLRB, 1980) and the fact that bothersome behavior is exhibited in the context of free speech does not clothe the behavior with the protection afforded free speech. Union High School District, Dec. No. 17939-A (Houlihan, 4/82). If an employee's reference to the grievance process were sufficient to provide protection, employers would never be able to discipline or otherwise take appropriate employment action against insubordinate employees.

Although Complainant's conduct between May 28, 1998, and June 2, 1998, would be reason enough for Superintendent Dodd to recommend Complainant's layoff, Superintendent Dodd had additional non-discriminatory, work-related reasons for his recommendation, i.e., that Complainant's conduct was causing a poor working climate at the Junior High School; Complainant's conduct demonstrated that he was not a team player; and Dodd's desire to allow the District to fill the one hundred percent (100%) French position with the most qualified candidate available.

Contrary to the presumptions of Complainant, the District had the contractual right to invoke Article 32(I). This right is not, in any way, limited by the fact that the District may not have exercised this right in the past and the exercise of this right does not provide circumstantial evidence of hostility toward his protected concerted activity.

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Section 895.46(1)(a), Stats., unquestionably required the District to defend Soto and Martin in the lawsuit filed by Complainant. The fact that the District provided such a defense is not proof that the District was hostile toward his protected activity. There is no merit to Complainant's claim that Dodd contacted Soto's attorney and asked the attorney to send a letter to the District indicating that the District had to provide legal counsel to defend against Complainant's lawsuit.

To argue that Dodd, or anyone on the School Board, was hostile toward Complainant for filing the October, 1997 grievance is totally inconsistent with the facts of this case. Significantly, it was Superintendent Dodd who recommended to the School Board on September 23, 1997, that it require Complainant to file a grievance to provide him with a procedure to have the allegations made by Complainant in his letter to Leonard addressed and resolved. Additionally, such an argument is inconsistent with the content of Complainant's year-end teacher evaluations for the 1997-98 school year and the fact that Complainant's contract was renewed in March of 1998.

Dodd acted professionally and appropriately throughout the grievance process to ensure that Complainant was provided with an opportunity to express his concerns. Moreover, Dodd credibly testified that he did not resent either the fact that Complainant filed the grievance, or the fact that, within the grievance, Complainant asked the School Board to consider the possibility of disciplining Dodd, Knaack, and Sheehan.

Given the absence of any credible evidence to support a finding that Dodd harbored any hostility toward Complainant's protected activity, Dodd's recommendation to layoff Complainant could not have been motivated by such hostility. Nor is there any credible evidence to support a finding that any School Board member harbored any hostility toward Complainant's protected activity, or that the School Board's decision to adopt Dodd's recommendation was motivated, in any part, by hostility toward the grievances filed by Complainant.

Subsequent to the School Board's decision to lay off Complainant, Dodd formed the interview committee for the one hundred percent French position. All three members of the interview committee identified the same two applicants as their top two candidates, neither of who was Complainant. There is no credible evidence in the record to support a finding that any member of the interview committee was hostile toward Complainant's protected activity or that Complainant's protected activity played any role in the decision of the interview committee that offered the position to Ms. Bouffleur. Rather, the simple fact is that Ms. Bouffleur was offered the position because she was the better candidate.

Complainant's argument that Ms. Bouffleur failed to submit her job application by the deadline is based upon a fact that is not in evidence, as are many of Complainant's arguments.

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Accordingly, these arguments must be disregarded and may not be given any weight by the Examiner. See Sec. ERC 12.06(1) of the Wisconsin Administrative Code.

Given the length of this hearing, as well as the length of time from the date of the conduct giving rise to Complainant's allegations and the hearing, it is not unusual that there would be inconsistencies in testimony. Moreover, the alleged inconsistencies in Dodd's testimony are either related to issues of minor import or are irrelevant to the disposition of this dispute. With respect to the relevant issues, i.e., whether Dodd was hostile toward Complainant's protected activity and whether his decision to recommend the layoff of Complainant was motivated, in any part, by hostility toward Complainant's protected activity, Dodd's testimony is consistent, credible and confirmed by other record evidence.

The inconsistencies in Leonard's testimony alleged by Complainant are not relevant to the resolution of the instant dispute. Moreover, it is not incredible that the specifics of School Board discussions occurring on August 20, 1998, were not memorable on December 8, 2000, when Leonard testified at hearing. This is especially true given the fact that Leonard's involvement in the layoff of Complainant was not significant.

The evidence does not support a finding that Leonard, or any other member of the School Board, was hostile toward Complainant's protected, concerted activity or that the School Board's decision to layoff Complainant was motivated, in any part, by such hostility. Nor is it evident that Leonard had any involvement in the hiring of Bouffleur.

Under Wisconsin Law, there is a presumption that District officials act in good faith and this presumption may only be rebutted by clear and convincing evidence. Notwithstanding Complainant's arguments to the contrary, neither the law nor the facts supports his claim that certain District witnesses are incredible or acted in bad faith.

Complainant's complaint of prohibited practices is without merit. Accordingly, it should be dismissed in its entirety. Assuming arguendo, that the District's complained of conduct was motivated, in part, by Complainant's protected activity, Complainant is not entitled to back pay or reinstatement because the District would have made the same employment decision absent the improper motive. Department of Employment Relations v. Wisconsin Employment Relations Commission, 122 Wis.2d 132, 361 N.W.2d 660 (1985); Taylor County, Dec. No. 29647-C (Werc, 6/00).

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DISCUSSION

Alleged Statutory Violations

The complaint contains the allegations that the District violated Sec. 111.70(3)(a)1 and 3, Stats., when the District's administration recommended Complainant's layoff and the District's School Board approved this layoff and rejected Complainant's application for full-time employment, in part, due to Complainant's protected, concerted activity, i.e., filing a grievance on October 29, 1997, and filing a grievance on June 5, 1998. Section 111.70(3)(a)1, Stats., provides that it is a prohibited practice for a municipal employer individually or in concert with others:

1. To interfere with, restrain or coerce municipal employees in the exercise of their rights guaranteed in sub. (2).

Section 111.70(2), Stats., referred to above, states:

Municipal employees shall have the right of self-organization, and the right to form, join or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in lawful, concerted activities for the purpose of collective bargaining or other mutual aid or protection, . . .

An independent violation of Sec. 111.70(3)(a)1, Stats., occurs when employer conduct has a reasonable tendency to interfere with, restrain or coerce employees in the exercise of their Sec. 111.70(2) rights. WERC v. Evansville, 69 Wis. 2d 140 (1975). Section 111.07(3), Stats., which is made applicable to this proceeding by Sec. 111.70(4)(a), Stats., provides that "the party on whom the burden of proof rests shall be required to sustain such burden by a clear and satisfactory preponderance of the evidence."

Concluding that it is impossible to define "concerted acts" in the abstract, the Commission stated that it is necessary to examine the facts of each case to determine whether the employee behavior should be afforded statutory protection and that, at root, this determination demanded an evaluation of whether the behavior manifests and furthers purely individual or collective concerns. City of La Crosse, Dec. No. 17084-D (WERC, 10/83).

If after evaluating the conduct in question under all the circumstances, it is concluded that the conduct has a reasonable tendency to interfere with the exercise of Sec. 111.70(2) rights, a violation will be found even if the employer did not intend to interfere and no employee felt coerced or was, in fact, deterred from exercising Sec. 111.70(2) rights. Beaver Dam Unified

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School District, Dec. No. 20283-B (WERC, 5/84); City of Brookfield, Dec. No. 20691-A (WERC, 2/84); Juneau County, Dec. No. 12593-B (WERC, 1/77). However, employer conduct which may well have a reasonable tendency to interfere with employees' exercise of

Sec. 111.70(2) rights will generally not violate Sec. 111.70(3)(a)1, Stats., if the employer had a valid business reason for its actions. Brown County, Dec. No. 28158-F (WERC, 12/96); City of Oconto, Dec. No. 28650-A (Crowley, 10/96), aff'd by operation of law, Dec. No. 28650-B (11/96); Milwaukee Board of School Directors, Dec. No. 27867-B (WERC, 5/95).

Section 111.70(3)(a)3, Stats., provides that it is a prohibited practice for a municipal employer:

3. To encourage or discourage a membership in any labor organization by discrimination in regard to hiring, tenure, or other terms or conditions of employment; but the prohibition shall not apply to a fair-share agreement.

A violation of Sec. 111.70(3)(a)3, Stats., results in a derivative violation of Sec. 111.70(3)(a)1, Stats.

To establish a violation of Sec. 111.70(3)(a)3, Stats., Complainant must establish, by a clear and satisfactory preponderance of the evidence: (1) that a municipal employee engaged in lawful concerted activity; (2) that the municipal employer, by its officers or agents, was aware of said activity and hostile thereto; and (3) that the municipal employer took action against the municipal employee based at least in part upon said hostility. Green Bay Area Public School District, Dec. No. 28871-B (WERC, 4/98); Employment Relations Dept. v. WERC, 122 Wis.2d 132 (1985); Muskego-Norway C.S.J.S.D. No. 9 v. WERB, 35 Wis. 2d 540 (1967).

In its Answer, Respondent raised the Affirmative Defense of Laches, but this Affirmative Defense was withdrawn at hearing. At the start of hearing, Respondent raised, as an Affirmative Defense, that Complainant has failed to mitigate any damages.

Merits

The Examiner has jurisdiction over allegations that are within the subject matter jurisdiction of the Commission and that have been properly pled in the complaint. The complaint does not contain any allegation that Respondent violated MERA when it issued the letter of June 3, 1998 of reprimand. The Examiner has no jurisdiction to overturn, or modify in any way, the June 3, 1998 letter of reprimand.

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Complainant has cited many Arbitration Awards issued by Commission staff members functioning as grievance arbitrators. Arbitration Awards that do not involve the parties to this proceeding do not establish any precedent that must be followed by this Examiner.

Complainant claims that, inasmuch as Arbitrator McAlpin did not decide Complainant's June 5, 1998 grievance, this Examiner has jurisdiction to determine the merits of this grievance. Complainant's June 5, 1998 grievance alleges that Respondent violated the DCETA collective bargaining agreement. Under Sec. 111.70(3)(a)5, Stats., the Commission has jurisdiction to determine whether or not a municipal employer has breached a collective bargaining agreement between a municipal employer and its municipal employees. The instant complaint, however, does not allege a violation of Sec. 111.70(3)(a)5, Stats., and does not properly plead any claim that provides the Examiner with jurisdiction to determine the merits of the June 5, 1998 grievance, or the merits of any of Complainant's other claims that the Respondent has violated, or failed to comply with, the DCETA labor contract.

Complainant was laid off under Article 32(I) of the DCETA labor contract and not hired into the 100% position that was posted in June of 1998. Arbitrator McAlpin decided Complainant's rights under the DCETA collective bargaining agreement regarding this layoff and Respondent's failure to hire Complainant into the 100% position.

Although the Commission does not have jurisdiction to vacate an arbitration award under Chapter 788, the Commission has jurisdiction to review arbitration awards in complaint cases seeking enforcement of arbitration awards. Milwaukee Board of School Directors, Dec. No. 30201-A (Burns, 9/01). The instant complaint does not seek enforcement of an arbitration award. Notwithstanding Complainant's arguments to the contrary, this Examiner does not have jurisdiction to overturn, or modify in any way, the Award of Arbitrator McAlpin.

Complainant argues that, in the arbitration proceeding before Arbitrator McAlpin, Respondent maintained the position that Complainant's layoff was not discipline. Notwithstanding Complainant's arguments to the contrary, this record provides no reasonable basis to conclude that Respondent is asserting a contrary position before this Examiner.

Complainant argues that his layoff was, in fact, discipline and, relying upon various grievance arbitration awards, argues that Respondent has failed to comply with recognized standards of progressive discipline, including just cause standards. Complainant's arguments, including his arguments that Respondent did not have just cause to discipline or terminate Complainant's employment; that Respondent failed to provide notice, or a warning, that Complainant had engaged in misconduct; and all of the other arguments regarding Respondent's lack of grounds for discipline, or failure to impose a particular type of discipline

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upon Complainant, may have relevance before a grievance arbitrator, but they are immaterial to the determination of the Sec. 111.70(3)(a)1 and 3, Stats., claims that are before the Examiner.

Complainant claims that the District has violated the open meetings law and that Respondent's attorney has violated provisions of the Wisconsin Supreme Court Rules of Professional Conduct. The Examiner is without jurisdiction to hear and decide either type of claim.

Complainant cites the following Respondent argument: "The record clearly establishes that Dr. Dodd was the administrator who made the decision to recommend to the School Board that it layoff Mr. Mudrovich . . ." and then argues that Respondent is precluded from making this argument under the principles of judicial estoppel because this position is inconsistent with Respondent's position at the hearing before Arbitrator McAlpin. In Riccitelli v. Broekhuizen, 227 Wis.2d 100, 111-12 (1999) the Wisconsin Supreme Court stated:

The equitable doctrine of judicial estoppel precludes a party from asserting a position in a legal proceeding and then subsequently asserting an inconsistent position. State v. Petty, 201 Wis.2d 337, 347, 548 N.W.2d 817 (1996). The doctrine may by invoked if: (1) the later position is clearly inconsistent with the earlier position; (2) the facts at issue are the same in both cases; and (3) the party to be estopped convinced the first court to adopt is position. Id. At 348. Determining the elements and considerations involved before invoking the doctrine of judicial estoppel are questions of law which we decide independently of the circuit court or court of appeals. Id. At 347.

The record does not establish that Respondent persuaded Arbitrator McAlpin to adopt the inconsistent position argued by Complainant. Assuming arguendo, that the equitable doctrine of judicial estoppel is applicable, Complainant has not established the requisite elements. Complainant's argument that Respondent is judicially estopped from arguing that Dodd was the administrator who made the decision to recommend to the School Board that it layoff Complainant is without merit.

Complainant argues that Arbitrator McAlpin found union animus, discrimination, and/or illegal conduct on the part of Respondent and that the Examiner must either adopt these findings, or be persuaded by these findings. As Examiner Mawhinney states in Racine Police Association, Dec. No. 27020-A (7/92); aff'd by operation of law, Dec. No. 27020-B (WERC, 8/92):

The Commission has held that it has the authority to make determinations and order relief in cases involving noncontractual unfair labor practices, even despite,

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contrary to, or concurrently with the arbitration of the same matters, and the possibility of full relief through arbitration does not preclude it from fully adjudicating alleged noncontractual violations of the statutes which it enforces. 12/ The Commission has concluded that an employee can pursue grievance arbitration alleging a contractual violation by the employer while contemporaneously citing the same employer action as a basis for filing an unfair labor practice before the Commission. 13/

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12/ Milwaukee Elks, Dec. No. 7753 (WERC, 10/66)

13/ Universal Foods Corp, Dec. No. 26197-B (WERC, 8/90)

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The parties did not agree to have Arbitrator McAlpin hear and decide the violations of Sec. 111.70(3)(a)1 and 3, Stats., alleged in the complaint and Arbitrator McAlpin did not decide these statutory violations. Arbitrator McAlpin's opinions regarding union animus, discrimination, and/or illegal conduct on the part of Respondent are not binding upon the Examiner. Nor are they persuasive.

Complainant devotes much of his extensive brief to the argument that the majority of witnesses are not telling the truth. Notwithstanding Complainant's arguments to the contrary, the record does not provide a reasonable basis to conclude that any witness is not being truthful because the witness is seeking to curry favor with District officials; is repaying District officials for past favors; or is retaliating against Complainant out of spite, in response to Complainant's prior conduct toward the witness, the witness' friends, relatives or colleagues, or for any other reason.

As Respondent argues, this hearing occurred several years after the events that then School Board member Susan Leonard has been asked to recall. Although Complainant's Grievance of October 29, 1997, was significant to Complainant, the record provides no reasonable basis to conclude that the claims raised in this grievance were of any particular concern to Leonard. Indeed, Leonard was not present at the School Board meeting in which the School Board considered this grievance.

Complainant's layoff was but one of many personnel actions that had been recommended by District Administrator Dodd at the School Board meeting of June 23, 1998. It is not evident that Leonard's participation in Complainant's layoff involved more than receiving a "heads up" from Dodd that Complainant's layoff was pending and voting to approve the contract adjustment that effectuated Complainant's layoff. It is not evident that Leonard had any involvement with, or influence upon, the interview team's selection of Bouffleur as the most qualified applicant.

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Notwithstanding Complainant's arguments to the contrary, the record does not establish that Leonard is a liar, or refused to respond truthfully to questions because of hostility to Complainant. Rather, the more reasonable construction of Leonard's inability to "recall" is that she does not recall and is not willing to speculate.

Although there are inconsistencies and contradictions in witness statements, the record does not provide a reasonable basis to conclude that any witness is a liar, or otherwise inherently incredible. Rather, the most reasonable construction of the record evidence is that inconsistencies are attributable to the normal factors that affect the reliability of witness testimony, e.g., confusing or ambiguous questions; the event which the witness is being asked to recall was not particularly significant to the witness and, thus, was not impressed upon the witness' memory; the event may have had significance at the time, but the passage of time and intervening events have diminished the ability of the witness to recall the event; there were so many discussions regarding a particular subject or event that a witness has difficulty in recalling what was said to whom and when it was said; and that the witness is a poor witness, e.g., is not articulate when called upon to recount events and/or has a poor memory.

Many of the "inconsistencies" or "contradictions" in testimony perceived by Complainant do not exist. Many others are immaterial. The Examiner need not, and has not, addressed all of the nonexistent and/or immaterial inconsistencies and contradictions that are argued by Complainant.

In Town of Mercer, Dec. No. 14783-A (Greco, 3/77), the Examiner stated that:

. . . it is well established that the search for motive at times is very difficult, since oftentimes, direct evidence is not available. For, as noted in a leading case on this subject, Shattuck Denn Mining Corp. v. N.L.R.B.

362 F 2d. 466, 470 (9 Cir., 1966):

Actual motive, a state of mind being the question, it is seldom that direct evidence will be available that is not also self-serving. In such cases the self-serving declaration is not conclusive; the trier of fact may infer motive from the total circumstances proved. Otherwise, no person accused of unlawful motive who took the stand and testified to a lawful motive could be brought to book.

In applying the above, Examiner Nielsen, in Northeast Wisconsin Technical College, Dec. No. 28954-B (8/98), recognized that if there is to be a finding of hostility and improper motive, it must flow from reasonable inferences drawn from overall circumstances. As the Court recognized in Employment Relations Department v. WERC, 122 Wis.2d 132 (1985), an employer need not demonstrate 'just cause' for its action. However, to the extent that

an employer can establish reasons for its action that do not relate to hostility toward an

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employee's protected concerted activity, it weakens the strength of the inferences which the employee asks the WERC to draw.

Examiner Nielsen recognized that timing alone does not generally prove pretext, but may be persuasive evidence when combined with other evidence. As the Commission recognized in Northeast Wisconsin Technical College, Dec. No. 28954-C; 28909-D (3/99), although bad business decisions or poorly monitored business decisions do not violate the law, business decisions which are not objectively supported by the record clearly create inferences that the Examiner must consider when assessing motivation. In this case, the Commission also recognized that events that follow a layoff are probative of motivation.

As Examiner Nielsen also recognized, if an explanation for an action is discredited, pretext may be inferred, but then one must ask and resolve the following question: A pretext for what? With these fundamental principles in mind, the Examiner turns to a review of Respondent and Complainant conduct.

On October 29, 1997, Complainant filed a grievance. This grievance is one of the two instances of protected, concerted activity that is alleged in the complaint. In responding to Complainant's arguments that Respondent has demonstrated hostility to Complainant's protected, concerted activity, it is necessary to consider conduct that occurred prior to and after his October 29, 1997, grievance was filed.

Complainant commenced employment with the District in the 1995-96 school year as a part-time French teacher in the Junior High. During the time that Complainant was employed by the District, the District also employed a full-time French teacher, Ann Berns. At various times during the first and second year of Complainant's employment, Complainant complained about Berns to administrators and Berns complained about Complainant to administrators.

Junior High Principal Robert Knaack and Corinne Solsrud, the Curriculum Coordinator for Language Arts and Foreign Language, each had knowledge of some of these complaints. Prior to the beginning of the 1997-98 school year, Knaack concluded that there was a poor relationship between Complainant and Berns and that Complainant was responsible for this poor relationship. Solsrud concluded that Complainant was more responsible for the poor relationship between Berns and Complainant than Berns.

Solsrud and Knaack's knowledge of the relationship between Complainant and Berns during the first two years of Complainant's employment with the District, including their knowledge of Complainant and Berns' complaints, provided each with a reasonable basis to reach their conclusions regarding Complainant's responsibility for the poor relationship between Complainant and Berns. The evidence that these administrators may not have advised Complainant that his conduct towards Berns was inappropriate, unreasonable or unjustified;

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that Complainant was not nonrenewed or disciplined for his conduct toward Berns; that these administrators may not have given Complainant an opportunity to rebut Berns' complaints; that these administrators may have relied upon the hearsay statements of other District employees; and that these administrators may not have fully investigated the complaints or been aware of all of the conduct that resulted in the poor relationship between Berns and Complainant does not warrant the conclusion that Solsrud and Knaack's conclusions regarding Complainant's culpability are not bona fide.

Prior to the beginning of the 1997-98 school year, Dodd learned that Complainant had problems with Berns when Knaack advised Dodd that Berns had complained about Complainant. Specifically, Dodd was told that Berns had complained to Knaack that Complainant acted as if he were Berns' supervisor and that Knaack had made a room assignment based upon Berns' complaint that she did not want Complainant in the vicinity while she was teaching. In the summer of 1997, Dodd made Complainant aware of these matters.

When Complainant attempted to explain his side of the issue with Berns, Dodd interrupted him by saying that it was not important who was right or wrong and that the point was that Complainant had alienated many of his foreign language colleagues. Given this point, Dodd's disinterest in hearing Complainant's response is understandable. It is not likely, however, that Dodd would have raised the issue with Complainant if Dodd had not formed an opinion that Complainant bore some responsibility for alienating Berns. Such a conclusion is supported by the fact that Dodd felt compelled to tell Complainant that Complainant was not Berns' supervisor. The evidence of Dodd's disinterest in hearing Complainant's side of the story; the evidence that Dodd relied upon Knaack's hearsay statements regarding Berns' and Complainant's relationship; and the evidence that Dodd did not discipline or nonrenew Complainant for his conduct towards Berns, does not warrant the conclusion that Dodd could not be legitimately concerned about Complainant's conduct towards Berns.

Prior to the end of the 1996-97 school year, Complainant, on multiple occasions, sought to have a classroom dedicated to French. When class assignments were made at the end of the 1996-97 school year for the ensuing school year, Complainant was not assigned a dedicated French room. Rather, the six sections of French were scheduled in five different rooms, with no two consecutive sections of French scheduled in the same room. Complainant had been assigned to teach four of these six sections. When Complainant advised Junior High School Vice-Principal Sheehan that this room assignment was worse than last year, Sheehan responded that he would look into the matter. Subsequently, Complainant was informed that the Foreign Language Department would have a meeting on May 28, 1997.

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At the start of this meeting, Solsrud informed the attendees that they had to discuss room assignments and that someone would end up shafted. Given the number of classrooms assigned to the Department, Complainant could not obtain a dedicated French room without depriving a more senior teacher of his/her own classroom.

Berns, the other French teacher, did not support Complainant in his request for a dedicated French room and, in fact, had never sought a dedicated French room. Thus, it was not "French" that sought a dedicated French room, but rather, it was Complainant that sought a dedicated French room. Given Complainant's statements on the issue, he sought a dedicated French room because he believed that it provided a better learning environment for French students and/or he believed that such a room was necessary in order for Complainant to compete for students in order to retain, or improve upon, his position within the District.

Spanish teachers, particularly Shar Soto, argued that they were entitled to keep their own classrooms because they were more senior. Complainant disputed the validity of this assertion and, during the ensuing discussion, each side accused the other of being hypocritical and uncompromising. Notwithstanding Complainant's arguments to the contrary, the Spanish teachers, as well as the administrators, may reasonably conclude that teacher seniority is a legitimate factor to be considered in making classroom assignments.

Soto proposed a schedule in which French would be taught in two consecutive sections in each of three rooms. The schedule proposed by Soto would not provide Complainant with a dedicated French room, but it was less onerous upon Complainant than the schedule that had been prepared by Sheehan because it resulted in fewer moves from room to room. This proposal of Soto's was a reasonable response to Complainant's complaint to Sheehan that the French schedule was worse than last year.

Complainant objected to Soto's proposal on the basis that it did not provide a dedicated French room. The meeting ended without a change in room assignments and Solsrud stated that she wanted the staff to work together to find a solution that was agreeable to everyone. At that time, other Departments were able to discuss and agree upon room assignments within their Department.

Complainant responded to Solsrud by developing a schedule in which he, Berns and Dudley were the only Foreign Language Department teachers to teach all of their classes in a single room. Complainant's proposed schedule resulted in a greater number of teachers moving from room to room and deprived more senior Spanish teachers of their own classroom. On May 29, 1997, Complainant distributed this schedule to the Junior High Foreign Language Department staff. One may reasonably conclude that the May 29, 1997 schedule proposed by Complainant did not offer a compromise between the competing interests of Complainant and the more senior Spanish teachers who wished to keep their own classrooms.

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On May 30, 1997, Spanish teachers Soto and Martin met with Knaack to complain about a note that Complainant had sent to teacher aide Maki on May 19, 1997. This note, which stated something like "Oh, cram it" was sent in response to Maki's request that Complainant send a "study buddy" when sending students to her study hall. Maki's request was consistent with school policy.

On May 30, 1997, Knaack asked Complainant to meet with him. Complainant met with Knaack on that day and Knaack told Complainant that teachers had complained about Complainant's treatment of Maki. Complainant and Knaack discussed Complainant's conduct in sending the note to Maki, but Knaack did not discipline Complainant for this note.

Complainant argues that Soto and Martin's complaint to Knaack was in retaliation for Complainant's attempts to obtain a dedicated French room. Inasmuch as those attempts did not involve protected, concerted activity for the purpose of collective bargaining or other mutual aid or protection, such "retaliation" is not unlawful. Evidence that administrators were hostile to Complainant's attempts to obtain a dedicated French room is not evidence of hostility to protected, concerted activity.

It may be, as Complainant argues, that he intended the Maki note to be a joke. Regardless of whether or not Maki appreciated the "joke," Complainant's note to Maki was not appropriate for a teacher to send to an aide in a business setting. Regardless of Soto and Martin's motivation for complaining about Complainant, it is reasonable for Knaack and other administrators to be concerned about the Maki note.

The District's administrators may rely upon the Maki note to form opinions of Complainant, such as that Complainant acted unreasonably or that Complainant was not a team player. Neither the fact that Maki did not wish to complain about the note, nor the fact that Complainant was not disciplined, or nonrenewed, for sending the note, provides a reasonable basis to conclude that Knaack and Dodd could not be legitimately concerned about Complainant's conduct in sending the Maki note.

Reasonably, Knaack considered Complainant to have been unharmed by the Soto and Martin complaint because Knaack did not put anything in Complainant's file regarding the complaint. Complainant disagreed and requested Knaack to arrange a meeting with Complainant, Knaack, Soto and Martin. Knaack declined to arrange such a meeting because he understood that the resolution being sought by Complainant was to have Soto and Martin apologize to Complainant. Subsequently, Complainant discussed the Maki note with an Association Representative; asked if the Association could mediate between members; and was advised that the Association wanted Complainant to drop the matter.

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Complainant did not drop the matter. Rather, on August 5, 1997, he commenced a civil lawsuit against Soto and Martin alleging, inter alia, injury to reputation and profession and defamation for making statements that Complainant had verbally abused Maki.

Knaack and Dodd learned of this suit prior to, or at the beginning of, the 1997-98 school year. Knaack and Dodd's knowledge of the Soto-Martin lawsuit provides these administrators with a reasonable basis to reach a variety of conclusions, such as the lawsuit was not reasonable; unjustified; vindictive; likely to have a negative effect upon the Junior High atmosphere; likely to chill other teacher's interactions with Complainant; and/or be an indication that Complainant was not a team player. Indeed, Complainant's own statements, as well as the testimony and written statements of other District staff, confirms that Complainant's suit had a chilling and negative effect upon the Junior High.

The evidence that Dodd and Knaack failed, or refused, to engage in any attempt to resolve either Complainant's complaints against Soto and Martin, or Complainant's lawsuit against Soto and Martin, until a mediation session in January of 1998, does not provide a reasonable basis to conclude that Dodd and Knaack could not be legitimately concerned about Complainant's conduct in suing Soto and Martin and/or the effects of this suit upon the Junior High School. The evidence that administrators did not advise Complainant that his lawsuit against Soto and Martin was inappropriate, unreasonable or unjustified and did not nonrenew or discipline Complainant for bringing this lawsuit does not warrant a conclusion that Dodd and Knaack could not be legitimately concerned about Complainant's conduct in filing such a lawsuit and/or the effects of this suit upon the Junior High School. Inasmuch as Complainant's lawsuit against Soto and Martin does not involve protected, concerted activity, evidence of hostility to Complainant's conduct in suing Soto and Martin does not provide a reasonable basis to infer hostility to protected, concerted activity.

Following the May 28, 1997 meeting of the Foreign Language Department, Complainant contacted, or met with, Sheehan, Solsrud, and Knaack in an attempt to obtain a dedicated French room. Sheehan and Solsrud were each informed by Complainant that Soto and Martin's conduct in complaining about the Maki note had foreclosed any possibility of the Foreign Language Department reaching agreement on room assignments. Solsrud responded to Complainant that she was tired of being in the middle of this issue and would not assure Complainant that she would discuss this matter with Sheehan. Sheehan initially advised Complainant that the room assignments were unchanged because Complainant thought that the Spanish teachers were throwing Complainant a bone. Complainant understood Sheehan to be referencing Soto's May 28, 1997 proposal. When Complainant returned to discuss the matter, Sheehan advised Complainant that the Spanish teachers had a lot of seniority and that a final decision would be made at a subsequent date.

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After Sheehan and Knaack advised Complainant that the room assignments would not be changed, Complainant met with Dodd and the District's Assistant Superintendent for Instruction of Pupil Services, Hazaert. Dodd concluded that Complainant had presented reasonable arguments as to why the French program was not being treated in the same manner as Spanish or German and told Hazaert to have Knaack give Complainant a dedicated French room. After Hazaert told Knaack to reexamine the issue, Knaack met with Complainant on July 17, 1997.

At this meeting, Knaack initially resisted the creation of a dedicated French room and argued that the Spanish teachers were more senior; that the success of the French program was more likely to be affected by the quality of the French teacher than the nature of the classroom; that Complainant should compromise by teaching two consecutive sections in each of three classrooms; that classroom assignment matters are normally decided at the Department level; and that Knaack would work with Complainant to get a dedicated French room for the following year. Complainant responded that this would not give Complainant a dedicated French room; that Complainant had tried for years to get a dedicated French room; and that it was unfair to wait any longer.

Eventually, Knaack agreed to give Complainant a dedicated French room and offered Room 11, the smallest of the Foreign Language classrooms. Complainant indicated that he had one class of 32 students; Room 11 would be too cramped; if Complainant had the larger class, than he should be given the largest classroom; and asked for the largest classroom, Room 7. Knaack responded that he was not going to give Complainant Room 7 because it would be not be fair to Spanish to give Complainant the biggest room and that Knaack did not want to take this room away from Haverly. When Complainant responded that he was not aware that classrooms belonged to any one teacher, Knaack raised his voice and responded that he was not going to "stick" it to Haverly. When Knaack offered Room 10, Complainant insisted that he measure Room 7 and 10. At this point in the conversation, Knaack threw up his hands and said "Oh, for Pete's sake." Knaack then accompanied Complainant to the two classrooms and Complainant paced off the dimensions. Concluding that there was not a significant difference between Room 7 and Room 10, Complainant indicated that Room 10 was acceptable.

During the walk to and from these classrooms, each individual continued with their arguments. At one point, Knaack responded that he could solve the large classroom problem by calling parents and telling them that their children could not be in French. Complainant responded that, if Knaack did that, then he was going to take Knaack to court. Knaack reiterated that he did not understand why the Department had not been able to work out the classroom assignments and Complainant responded that he had been stabbed in the back and he was not going to take the short end of the stick after being stabbed in the back. When Knaack again stated that he did not understand why the Department had not been able to work out the classroom assignments, Complainant raised his voice and emphatically stated that he was sick

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and tired of hearing Knaack say that, as if it were Complainant's fault; that it was not Complainant's fault that the Department had not been able to work it out; and that he did not want to hear that anymore. Knaack responded that they did not need to go to war over the matter.

Knaack then developed a schedule and Complainant told Knaack that the schedule did not make sense in that it put a Social Studies teacher in a Foreign Language Department room at a time that the room could be used by a Foreign Language teacher. Knaack responded that he did this because it would cause Complainant to move once, which Knaack considered to be fair to the Spanish teachers who had to move. The meeting concluded with Knaack replacing the French section in the French classroom and indicating that, if he could work out the study halls, that this schedule should work. Complainant, who believed that he had yelled at Knaack, apologized to Knaack for yelling. Complainant, who believed that Knaack had also yelled at him, was surprised that Knaack did not apologize for yelling.

On July 17, 1997, following his meeting with Knaack, Complainant wrote a letter to Dodd that indicated, inter alia, that, although Complainant and Knaack had reached agreement on a French room, Knaack had demonstrated and continued to demonstrate antipathy, even outright hostility, to either Complainant personally, or to the French program; that Complainant was fearful that Knaack would try to get back at Complainant; and asked that neither Sheehan, nor Knaack, be assigned as his supervisors because they had treated him unfairly. Complainant attached the various classroom schedules that he deemed to be relevant to his complaints, including Complainant's May 29, 1997 proposal.

On July 25, 1997, Knaack telephoned Complainant. During this telephone conversation, Knaack told Complainant that he had changed his mind and that the French room would be moved to Room 11; Complainant reiterated his concern that the room was too small for his largest class; and Knaack responded that the other Spanish teachers were upset about the room assignment that had previously been agreed upon and that Knaack's decision was final. Complainant initially agreed to the change, but then subsequently told Knaack that Room 11 was not acceptable; that the schedule worked out with Knaack had been fair; and that he did not like the fact that Knaack had made the change without first discussing it with Complainant.

On July 25 1997, Complainant delivered the July 17th letter and a letter dated July 25, 1997, to Dodd's office. In the July 25th letter, Complainant informed Dodd that Knaack was "still messing" with him. In this letter, Complainant stated various concerns regarding Knaack and Complainant's arguments for the larger classroom. This letter contained schematic drawings of the various Foreign Language Department rooms and enrollment figures that indicated that Complainant's class sizes were 17, 18, 19 and 31 students and that the vast majority of the other language classes were over 23 students, with a general range of 23 to 26 students.

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Dodd discussed these letters with Knaack. Knaack told Dodd that Complainant was expressing Complainant's opinion; that Complainant had received a French room and that there was no further conflict. Dodd concluded that Knaack was not hostile to Complainant and decided not to intercede further in the matter.

Having had no response to the letters that were delivered on July 25, 1997, Complainant telephoned Dodd on July 29, 1997. Dodd was not sympathetic to Complainant's concerns and told Complainant that he supported Knaack's room assignment. During this conversation, Dodd told Complainant that Complainant had alienated his colleagues in the Foreign Language Department; Complainant responded that they had alienated him; Complainant brought up Soto and Martin; and Dodd told Complainant that Dodd knew that Complainant also had problems with Berns. Complainant's notes of this conversation indicate, inter alia, that Complainant told Dodd that rooms should be assigned on the basis of need and not to soothe teacher egos; that Complainant's 7th hour class was by far the largest Foreign language class and that it would not fit comfortably into Room 11; that Dodd suggested that Complainant find a larger room for his 7th hour class; that Dodd indicated that one of the perks of seniority was that teachers get the room of their choice and Knaack was trying to preserve some semblance of this tradition; that after Dodd had reiterated his position, Dodd told Complainant that he did not want to discuss the matter any further; that Dodd stated that French was receiving the same consideration as Spanish; that Dodd told Complainant that one of the reasons that Complainant was not given Room 10 was that Berns did not want Complainant doing his preps at the desk in the adjoining small office while she taught her classes; that Dodd, on more than one occasion, told Complainant that he and/or French was being treated fairly; and that when Complainant indicated that he disagreed, Dodd told Complainant that there was nothing further to discuss, and each said "good-bye." In an addendum to these notes, Complainant indicated, inter alia, that he had asked for a meeting with Dodd, Knaack and Complainant to discuss room assignment and Knaack's behavior and continued attempts to not give him a French room; Dodd said he did not see any point in that because Complainant had received his French room; that when Complainant asked Dodd if Complainant was being treated fairly when Knaack yelled at Complainant, Dodd responded that he had been in situations like that, when you are frustrated and can't get your point across, that the only way to get your point across is to raise your voice; that Complainant stated that Knaack did not raise his voice, but rather, yelled, and asked if Dodd thought that was proper; that Dodd responded that those things happen; that there was a discussion about the reliability of the student numbers for the 7th period class; and that there was a discussion about Complainant's request to not have Sheehan or Knaack supervise Complainant and Dodd indicated that he could not promise anything.

At the time of this discussion, Dodd concluded that Complainant's charges against Knaack were not very serious; that the matter had been resolved when Complainant received his dedicated French room; and that the only reason that Complainant wanted to meet with

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Dodd was to have Dodd overrule Knaack's classroom assignment decision. Complainant concluded that Dodd had given a stamp of approval to behavior of Knaack that was hostile and that such approval was not appropriate for a public school system.

Complainant then telephoned School Board Vice-President Leonard to discuss his concerns, including his concern that French was not being treated fairly; that Soto and Martin had maligned him; that Knaack had yelled at him on July 17, 1997; that it was unfair that he have the smallest classroom when he had the largest section; and that he felt that his career was in jeopardy because he had irritated both Knaack and Sheehan and that Dodd thought he was a difficult person who alienated everyone. Leonard appeared to be sympathetic to his concerns and agreed to discuss the matter with Dodd. On August 6, 1997, following Leonard's discussion with Dodd, Leonard and Complainant had a telephone conversation in which Leonard told Complainant that she was not concerned about the room assignment change; that she did not want to discuss this change and that Dodd would meet with Knaack to discuss Complainant's concerns.

On August 7, 1997, when Dodd did not get back to Complainant, Complainant telephoned Dodd. At this time, Complainant was told that Dodd had met with Knaack; that Dodd would not change Knaack's room assignments; that when Complainant asserted that his greater concern was the hostility that had been shown him, Dodd advised Complainant that he would keep Complainant's letter on file; that, if Complainant experienced any further problems, he should come to Dodd; and that Dodd could not guarantee specific working conditions, but would guarantee that Complainant would be treated fairly.

According to Knaack, by the end of the July 17, 1998 meeting, he had concluded that Complainant's attempts to obtain a dedicated French room were unreasonable and uncompromising. Knaack's knowledge of Complainant's conduct provided Knaack with a reasonable basis to reach such conclusions. Knaack's comments to Complainant placed Complainant on notice that Knaack considered Complainant to be uncompromising and unreasonable. The failure of Knaack to discipline or nonrenew Complainant for Complainant's attempts to obtain a dedicated French room does not warrant the conclusion that Knaack could not be legitimately concerned about Complainant's conduct in attempting to obtain a dedicated French room.

According to Dodd, Complainant's attempts to obtain a dedicated French room lead Dodd to conclude that Complainant was obstinate, not a team player and would do almost anything to get his own way. Dodd's knowledge of Complainant's attempts to obtain a dedicated French room provides Dodd with a reasonable basis to form such conclusions. Neither the fact that Dodd originally intervened on the basis that he considered Complainant to have provided good reasons for a dedicated French room, nor the failure of Dodd to specifically advise Complainant that he had acted in an inappropriate manner, warrants the

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conclusion that Dodd could not be legitimately concerned about Complainant's attempts to obtain a dedicated French room. Nor would such a conclusion be warranted by the failure of Dodd to nonrenew or discipline Complainant for his attempts to obtain a dedicated French room.

On August 8, 1997, Complainant encountered Sheehan in the Junior High Office and, during the ensuing discussion, told Sheehan that Complainant was going to ask the School Board to invoke a disciplinary hearing against Sheehan and Knaack because both of them had been very unfair in the way that they handled the room assignment issue. Sheehan responded "Oh" and agreed to give this same message to Knaack. Sheehan's response to Complainant during this encounter indicates that Sheehan was not threatened by Complainant's announcement.

On August 26, 1997, Complainant was advised that Sheehan had been assigned as his direct supervisor for the ensuing school year. Complainant sent a letter to Knaack, requesting that Kris Gilmore or Connie Solsrud be his direct supervisor because he was not comfortable with Sheehan because of the turmoil that Complainant went through to obtain a dedicated French room. Knaack denied this request.

On August 27, 1997, Sheehan wrote a letter to Complainant indicating that he and Sheehan agreed that a change in supervision was not necessary. This letter also stated:

Our view always has been, and certainly will remain, that the best source of staff development is the supervision process. The goal of the supervision process is to work with you and all other teachers to help you grow into the most effective teacher you can be. I hope that you can understand this.

At this time there is no relationship between this opportunity for professional growth and ". . . the turmoil I had to go through in the process of getting a room dedicated to French . . ." It is my hope that you are able to see the purpose for which our supervision process operates and are able to enter into the process with a positive spirit. It may be necessary for you to look past any perceived problems of the past summer in order for you to take advantage of this opportunity for professional growth.

On August 28, 1997, Complainant wrote a letter to Dodd in which he advised Dodd, inter alia, that he strongly objected to the refusal to accommodate his reasonable request to have either Gilmore or Solsrud be his primary supervisor; that given the turmoil that he was subjected to that Spring by Sheehan and Knaack, their insistence that Sheehan be his supervisor was a clear form of harassment; and that serious issues were raised as to Sheehan's objectivity

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and impartiality. Dodd responded with a letter confirming that Sheehan would be Complainant's supervisor. Neither Sheehan, nor Knaack, ever expressed to Dodd that they had hard feelings about the fact that Complainant had gone over their heads.

The record does not demonstrate that, prior to September 9, 1997, Complainant engaged in any protected, concerted activity for the purpose of collective bargaining or other mutual aid and protection. The evidence of Sheehan's, Solsrud's, Knaack's, Hazaert's, and Dodd's conduct prior to September 9, 1997, does not provide a reasonable basis to infer that any of these administrators are hostile to the exercise of Complainant's protected, concerted activity.

Complainant raised certain complaints in a September 9, 1997, letter to Leonard. As set forth in that letter, the purpose of this letter was to have the School Board invoke a disciplinary hearing against Sheehan, Dodd and Knaack for treating Complainant unfairly and because recent actions on their part had made it clear to Complainant that they planned to harass Complainant.

Complainant's conduct in preparing and submitting this letter of September 9, 1997, does not demonstrate that Complainant was engaged in protected, concerted activities for the purpose of collective bargaining or other mutual aid and protection. Rather, the most reasonable construction of the evidence is that, in preparing and submitting this letter, Complainant was furthering a purely individual, rather than a collective concern.

Leonard did not contact Complainant to discuss this letter, but rather, showed this letter to Dodd. Dodd responded that the School Board should hear Complainant's complaints and discipline Dodd if he needed discipline. This conduct of Dodd rebuts Complainant's arguments that Dodd did not want the School Board to consider the complaints or concerns that were raised in the September 9, 1997, letter.

Dodd's response to Leonard indicates that Complainant's going over Dodd's head, or complaining about Dodd to the School Board, did not threaten Dodd. Nor, given the nature of, and the basis for, the allegations contained in the letter of September 9, 1997, would it be reasonable to infer that Dodd, Sheehan, and/or Knaack would be likely to perceive Complainant's conduct in going over their head and complaining to the School Board as threatening.

Dodd subsequently discussed the September 9, 1997, letter with the District's attorney; was advised that there was a contractual procedure to handle such complaints; and reported this advice to the School Board. Complainant's argument that Dodd engaged in this conduct so that Complainant could not get his complaints resolved is not supported by the record evidence.

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Pursuant to the direction of the School Board, Dodd responded to Complainant's letter of September 9, 1997 by informing Complainant "that there is a grievance process in place that can be used to address such issues." By this conduct, the School Board evidenced an intent to have complaints against its administrators resolved through the contractual grievance procedure. This conduct of the School Board provides a reasonable basis to infer that the School Board is not hostile to the filing of grievances, or the use of the contractual grievance procedure to process employee complaints. The District's response to the letter of September 9, 1997 does not provide a reasonable basis to infer that Dodd, School Board members, or any other representative of the District, is hostile to the exercise of protected, concerted activity.

Complainant's statements demonstrate that Complainant did not consider the grievance procedure to be the appropriate place to address the issues raised in his letter of September 9, 1997 and that Complainant resented having to use the grievance process to raise these issues with the School Board. Nevertheless, on October 29, 1997, Complainant filed a grievance.

In the October 29, 1997 grievance, Complainant asserted that Sheehan, Knaack and Dodd are hostile to the French program; that this hostility caused the elimination of a French class, with the effect that Complainant was employed at less than full-time; and that Complainant was verbally abused and subject to a hostile work environment because of Complainant's efforts on behalf of French students and the French program. This grievance indicates that, prior to the time that Complainant filed this grievance, he considered Dodd to have the opinion that Complainant was "the type of person who tells other teachers to 'go shove it.'

The remedies requested in the grievance are a public apology from the three administrators; compensation for the mental anguish caused by the administrators' unfair treatment of Complainant; the assignment of someone other than Knaack or Sheehan as Complainant's primary supervisor; neither Sheehan nor Knaack be permitted to enter Complainant's classroom, except in the case of an emergency or for some other such non-supervisory purpose; increase Complainant's contract to 100% FTE and guarantee Complainant a 100% FTE contract for as long as Complainant chooses to remain at the District; a payment of the difference between Complainant's 1996-97 FTE of 65% and a 100% FTE; beginning with the 2000-01 school year, the District should compensate Complainant at the same rate of pay as a Curriculum Coordinator, since the hostile work environment caused by Sheehan, Knaack and Dodd would prevent Complainant from advancing to this position; and a formal hearing to determine whether or not the actions of Dodd and Knaack, during conversations between Dodd and Knaack concerning Complainant, violated Sec. 134.01, Stats.

The Association assisted Complainant in preparing his October 29, 1997 grievance, but the Association did not sign on to this grievance, in part, because the Association was concerned about the personal nature of the grievance and the corrective action being sought in

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the grievance. When Complainant's attorney presented this grievance to the School Board, at Step 3, he stated that the grievance was a personal grievance against the three administrators, not a policy grievance.

The October 29, 1997 grievance asserts that there have been violations of the DCETA collective bargaining agreement. It is evident, however, that Complainant did not initiate the grievance, or raise the claims set forth in this grievance, for the purpose of enforcing the DCETA collective bargaining agreement, or for purposes of any other mutual aid and protection. Rather, Complainant's purpose in initiating the October 29, 1997 grievance, and raising the claims set forth therein, was to further purely individual concerns. The fact that UniServ Director Coffey considered it possible that this grievance would benefit someone other than Complainant does not compel a contrary conclusion.

Knaack acknowledges that he was shocked when he received Complainant's written grievance because he believed that Complainant wanted the administrators reprimanded for personal reasons and that he considered such a reprimand request to be unusual. This response to Complainant's grievance does not provide a reasonable basis to infer that Knaack is hostile to protected, concerted activity.

Dodd acknowledges that, when he initially read the October 29, 1997 grievance, he was perturbed by the allegation that administrators may have violated Sec. 134.01, Stats. During the processing of this grievance, Dodd exhibited unhappiness with Complainant's Sec. 134.01 allegation and expressed his opinion that he considered this allegation to be completely unfounded.

Section 134.01, Stats., states as follows:

Injury to business; restraint of will. Any 2 or more persons who shall combine, associate, agree, mutually undertake or concert together for the purpose of willfully or maliciously injuring another in his or her reputation, trade, business or profession by any means whatever, or for the purpose of maliciously compelling another to do or perform any act against his or her will, or preventing or hindering another from doing or performing any lawful act shall be punished by imprisonment in the county jail not more than one year or by fine not exceeding $500.

The evidence that Dodd was hostile to Complainant's Sec. 134.01, Stats., allegations, including the evidence that, during the Step 2 meeting, Dodd was visibly agitated when he discussed Complainant's allegation that administrators may have violated Sec. 134.01, Stats.; voiced his opinion that these allegations were off the wall; and stated that it was highly irresponsible for Complainant to have made such allegations does not provide a reasonable basis to infer that Dodd is hostile to Complainant's exercise of protected, concerted activity.

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Dodd's testimony demonstrates that he considered the remedies requested in Complainant's grievance of October 29, 1997 to be outlandish. Indeed, one of the reasons that the DCETA did not sign on to this grievance was that Association representatives considered the requested remedies to be problematic. Dodd's opinion regarding the merits of the remedies requested in Complainant's October 29, 1997 grievance does not provide a reasonable basis to infer that Dodd is hostile to the exercise of protected, concerted activity.

Complainant was engaged in protected, concerted activity when he used the contractual grievance procedure to raise the concerns set forth in his grievance of October 29, 1997. Complainant also was engaged in protected, concerted activity when he sought assistance from the DCETA in preparing this grievance and processing this grievance through the contractual grievance arbitration procedure.

Knaack and Dodd met with Complainant at the appropriate Steps of the grievance procedure. Knaack and Dodd provided Complainant with a reasonable opportunity to discuss his concerns when they met to discuss the grievance. It is not evident that, during the processing of the grievance, Knaack or Dodd denigrated Complainant's use of the grievance procedure or Complainant's conduct in seeking DCETA assistance with this grievance.

At the Step 2 hearing, Dodd refused Complainant's request for a copy of the minutes that were being prepared by other administrators. Dodd's refusal does not provide a reasonable basis to infer that Dodd is hostile to Complainant's protected, concerted activity.

Contrary to the argument of Complainant, Dodd does not acknowledge that, when he prepared his Step 2 response, Dodd intended to create, for the School Board's consumption, a dishonest account of the issues presented in the grievance. Rather, the most reasonable construction of the record evidence is that Dodd intended to create, and did create, an account that represented Dodd's view of the relevant facts and arguments. The record evidence does not support Complainant's argument that Dodd grossly misrepresented what occurred at the Step 2 hearing.

Prior to the Step 3 hearing, the Association asked the administration if they would agree to have an Association staff attorney mediate the grievance and the lawsuit against Soto and Martin. Dodd, who was present at the mediation that was scheduled in response to this request, concluded that Complainant, who was represented by his personal attorney, would not settle for less than the corrective action requested in the grievance, which corrective action Dodd considered to be outlandish. This conduct of Dodd's does not provide a reasonable basis to infer that Dodd is hostile to Complainant's protected, concerted activity.

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On June 19, 1998, when Complainant met with the School Board at Step 3 of the grievance procedure, he asked for five minutes to read a statement. After twelve minutes, School Board President Fisher indicated that he had heard enough and would not permit Complainant to finish reading his statement. Complainant was permitted to submit this written statement to the School Board.

After Complainant and his attorney indicated that they had nothing more to say, the School Board went into closed session at approximately 8:49 p.m., voted to deny the grievance and, at 8:55 p.m., adjourned the meeting. The School Board's attorney provided the School Board's written response in a letter to Complainant's attorney, dated January 20, 1998, which letter includes the following:

. . . At the conclusion of the Step 3 grievance meeting on Monday, January 19, 1998, the Board voted unanimously to deny the grievance. The reasons for the Board's denial of the grievance include the following:

. . .

15. Many of the issues presented are not grievances as defined by the collective bargaining agreement.

16. No evidence was presented that establishes a violation of Article 2, Article 30, or any other section of the collective bargaining agreement.

17. The grievance was not timely filed since it was not filed within ten (10) working days after the cause of the grievance was known or should have been known by Mr. Mudrovich.

Notwithstanding Complainant's argument to the contrary, the fact that the School Board advised Complainant that there is a contractual grievance procedure for raising complaints and then found that many of the complaints raised by Complainant are not grievances, does not provide a reasonable basis to infer that the School Board has acted in bad faith.

At times during the Step 3 meeting, District representatives appeared to be impatient when they addressed Complainant and, in LaBarge's opinion, made some statements to Complainant and Complainant's attorney that were a bit insulting. The demeanor of the School Board members, as well as their questions, left Complainant with the impression that the School Board members were not interested in the facts, but simply wanted to support their administrators.

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The evidence of the School Board members conduct at the Third Step of the grievance procedure reasonably gives rise to an inference that School Board members were abrupt, impatient and "a bit" insulting to Complainant and/or his attorney. However, it is not evident that any School Board member denigrated Complainant's use of the grievance procedure, or Complainant's conduct in seeking the assistance of the DCETA. Given this lack of evidence, as well as the evidence that the School Board suggested the grievance procedure as a vehicle for raising Complainant's claims; the evidence that the School Board met with Complainant at the appropriate steps of the grievance procedure; and the evidence that the School Board provided Complainant with a reasonable opportunity to address the concerns raised in his grievance, the conduct of the School Board members at the Third Step grievance hearing does not provide a reasonable basis to infer that any School Board member is hostile to Complainant's protected, concerted activity.

At the Step 3 meeting, Dodd told Complainant that the allegation that Dodd and Knaack may have violated Sec. 134.01, Stats., was a very serious allegation; stated that he was very unhappy about Complainant having raised such an allegation and appeared to be upset over this allegation. This conduct of Dodd's does not provide a reasonable basis to infer that Dodd is hostile to Complainant's protected, concerted activity.

In summary, the evidence of Knaack's, Dodd's and the School Board members' demeanor and conduct during the processing of the October 29, 1997 grievance does not provide a reasonable basis to infer that Knaack, Dodd or any School Board member is hostile to Complainant's use of the grievance procedure or to Complainant's seeking the assistance of the DCETA to prepare and process this grievance. Nor does such evidence provide a reasonable basis to infer that Knaack, Dodd or any School Board member is hostile to any other protected, concerted activity of Complainant.

After Complainant filed the October 29, 1997 grievance, the District's School Board authorized the District to provide representation to defend Soto and Martin in Complainant's lawsuit. The most reasonable construction of the record evidence is that the School Board provided such representation because it was requested to do so by at least one defendant attorney and the District's legal counsel advised the School Board that the statutes required the District to provide such representation. The evidence of the District's decision to provide such representation does not provide a reasonable basis to infer that the School Board, or any agent of the District, is hostile to any protected, concerted activity upon the part of Complainant.

On March 5, 1999, Attorney Cari L. Westerhoff of the law firm of Ruder & Ware, acting as the attorney for Defendants Soto and Martin, signed a sworn affidavit that certain disbursements should be included in the bill of costs. Among these disbursements was the following:

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10/29/97 RJR Telephone conference with R. Dodd re issues related to pending lawsuits against teachers in district and discussion of issues related to possible discipline of teacher.

The above referenced RJR is the District's attorney, Ronald J. Rutlin.

In statements before the Court, Westerhoff said that "When the billing statement says that conferences about pending issues involving teacher, that is specifically Mr. Mudrovich." Relying upon the fact that Complainant's grievance was filed on October 29, 1997; the above telephone log; and Westerhoff's affidavit and statement to the Court, Complainant argues that Dodd wanted to discipline Complainant for filing the grievance.

On its face, the telephone log references a "telephone conference" and a "discussion." Westerhoff's statements to the Court do not make it clear that she was representing that the "discussion" involved Complainant.

Dodd does not deny having a discussion regarding the discipline of a teacher with Rutlin on October 29, 1997, but rather, states that he does not recall such a discussion. Dodd does deny that, on October 29, 1997, he telephoned Rutlin to inquire about whether Complainant could be disciplined for filing a grievance. Given the ambiguity of Westerhoff's statements to the Court; the failure of the telephone log to reference a grievance; and Dodd's denial, the record does not provide a reasonable basis to infer, as Complainant argues, that Dodd wanted to discipline Complainant for filing the October 29, 1997 grievance.

On January 20, 1998, Knaack assigned Complainant to be in an IMC study hall every day. Complainant argues that, by this assignment, Complainant was the recipient of disparate treatment and that this disparate treatment provides evidence of hostility to Complainant's exercise of protected, concerted activity.

Complainant's IMC study hall assignment was made shortly after the School Board issued its response to the October 29, 1997 grievance. The timing of the IMC assignment may be suspicious. However, the most reasonable construction of the record evidence is that this assignment was made for legitimate business purposes, i.e., Knaack assigned Complainant to the IMC study hall because Bjorklund, who was the study hall teacher, was having difficulty with the study hall and Complainant was available to provide assistance.

On January 22, 1998, in response to a complaint from Bjorklund that Complainant was not in the IMC study hall at all times, Knaack issued a memo to all IMC study hall supervisors, reminding them of the need to remain in the IMC throughout the entire period and to not share the assignment with their co-worker. Knaack also responded to Bjorklund's complainant by advising Bjorklund and Complainant that each must be in their study hall at all

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times. The evidence of Knaack's conduct in assigning Complainant to the IMC study hall and in responding to Bjorklund's complaint's regarding Complainant's absence from that study hall does not provide a reasonable basis to infer that Complainant was the recipient of disparate treatment, or that Knaack is hostile to Complainant's protected, concerted activity.

In March of 1998, the District renewed Complainant's teaching contract for the 98-99 school year. On or about March 10, 1998, Complainant returned his signed contract to the Junior High Office and asked the secretary to give him a receipt for this signed contract. In Complainant's opinion, the secretary appeared reluctant to do so. Knaack and Sheehan then asked Complainant to come into an office; asked what Complainant wanted; Knaack told Complainant that it was not the secretary's job to sign such a receipt; Knaack and Sheehan refused to sign such a receipt; and Knaack indicated that, if Complainant were concerned, then Complainant could take the contract to the central office himself.

In Complainant's opinion, Knaack was angry and the only reason for this anger was that Complainant had filed a grievance against Knaack. It is not evident, however, that during this conversation, Knaack made any reference to the October 29, 1997 grievance.

The failure of the Junior High secretary to automatically provide Complainant with the requested receipt, as well as Knaack's statement that it was not the secretary's job to provide such a receipt, indicates that Complainant's request was unusual. Complainant's conduct in requesting a receipt reasonably implies that Complainant does not trust the Junior High Office to return his contract to the Central Office.

Considering the context of the discussion, as well as Complainant's prior expressions of distrust of Knaack and Sheehan, the most reasonable construction of Knaack's and Sheehan's conduct is that it was a reaction to the implication that Complainant did not trust the individuals in the Junior High Office to return his contract to the Central Office. The evidence that Knaack and Sheehan exhibited hostility to Complainant's request for a receipt, does not provide a reasonable basis to infer that either administrator is hostile to Complainant's filing a grievance on October 29, 1997, or to any other protected, concerted activity.

In April of 1998, Complainant's attorney deposed Sheehan and Knaack in the matter of Complainant's lawsuit against Soto and Martin. Thus, after Complainant had received his renewed teaching contract, Sheehan and Knaack had reason to revisit and reflect upon the effect of Complainant's conduct in suing Soto and Martin. In Complainant's opinion, neither administrator was particularly happy about being deposed. Evidence that these administrators were not happy about being deposed does not provide a reasonable basis to infer that either is hostile to protected, concerted activity.

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On or about May 14, 1998, Sheehan posted a "Master Class List" for the 1998-99 school year. In this "Master Class List," Complainant was scheduled to teach an additional, or "extra" French section. Complainant argues that this scheduling establishes that Sheehan had made the decision to offer Complainant a 100% position.

Complainant's argument regarding the effect of the May 14, 1998 schedule is inconsistent with the credible evidence that FTE's are increased through adjustments in the individual teacher contract; the fact that the posted "Master Class List" contains an express caveat that it is subject to change; credible administrator testimony that the posted "Master Class List" is a work in progress; and credible evidence that, at the time that the "Master Class List" was posted, there was uncertainty as to whether or not Berns would be available to teach the "extra" French section.

Complainant's argument is also inconsistent with Sheehan's testimony that he scheduled Complainant to the extra section of French because Sheehan needed a name for that section in order to run the computer program. Complainant argues that Sheehan fabricated this testimony to cover up the fact that, when Knaack learned of Sheehan's assignment of the extra French section to Complainant, Knaack nullified this assignment in retaliation for Complainant's exercise of protected, concerted activity.

On May 15, 1998, Complainant commented to Sheehan that Complainant had been scheduled for five sections of French and Sheehan responded, "That is correct." When Complainant advised Sheehan that he appreciated the additional section, but that his contract was for 80%, Sheehan indicated that he did not know that and would look into the matter.

Sheehan's failure to offer the explanation that he had scheduled Complainant for an extra section because Sheehan needed a name in order to run the computer program is curious. One may reasonably conclude, however, that if Sheehan had made the decision to increase Complainant to a 100% FTE, then Sheehan would have responded to Complainant by telling Complainant to not worry and that his contract would be adjusted accordingly. Sheehan's response on May 18, 1998, reasonably gives rise to an inference that Sheehan had not made a decision to increase Complainant's contract to 100% FTE and that Sheehan was not aware that anyone else had made such a decision.

According to Sheehan, he intentionally used Complainant's name for the "extra" section of French. Thus, Complainant's argument that it is not logical that Sheehan would not correct his "mistake" prior to running the schedule is not persuasive.

Complainant argues that he taught four classes of French at the Junior High in 1997-98 and Berns taught two classes of French at the Junior High in 1997-98. Complainant argues, therefore, that Sheehan's testimony that he arrived at the "extra" French section by subtracting

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from the status quo is not logical because six French classes were taught in 1997-98 and six French classes were scheduled for 1998-99. (Tr. 2575) The Examiner, however, finds Sheehan's testimony on this point to be ambiguous. There are two aspects of the status quo; one relates to the number of French sections and the other relates to who is teaching these French sections. Given the evidence that there was uncertainty regarding Berns' availability to teach the second section of French, it is plausible that Sheehan's ambiguous remarks mean that he added the section that he knew Berns was available to teach and the four sections that Complainant had taught and then determined that there was an "extra" section of French. In other words, the "extra" section of French is "extra" because it could not yet be assigned to Berns. Sheehan's ambiguous testimony as to why he had an "extra" section of French does not persuade the Examiner that Sheehan is a liar, or that he did not assign Complainant the "extra" section of French because he needed a name in order to run the computer program.

Credible testimony of the administrators demonstrates that there was a meeting, in early to mid-May of 1998, in which administrators discussed staffing issues, including Complainant's teaching assignment for the 1998-99 school year. Dodd recalls that, at this meeting, Knaack told Dodd that Knaack was considering making Complainant a 100% FTE teacher, but that Knaack had reservations about Complainant. Dodd's credible testimony on this point gives credence to Knaack's testimony that, on May 18, 1998, Knaack was not willing to increase Complainant to a 100% FTE because Knaack had reservations about Complainant.

Knaack's testimony is consistent with the evidence of Knaack's conduct on May 18, 1998. On that date, Knaack asked Complainant if he were interested in teaching the extra French section. Complainant responded in the affirmative and Knaack indicated that Complainant should provide a written statement of his interest in a 100% position. Had Knaack intentionally nullified a decision by Sheehan to increase Complainant to a 100% FTE, as argued by Complainant, then it would be unlikely for Knaack to have had such a conversation with Complainant. Knaack's conduct of May 18, 1998, reasonably implies that, as of that date, Knaack had not made a decision to either offer Complainant a 100% FTE, or to deny Complainant a 100% FTE.

To be sure, Knaack had not previously asked Complainant for a written statement of interest in having his FTE increased. Knaack, however, had previously asked Complainant to verbally affirm his interest in receiving an increase in his FTE. Knaack's request for a showing of interest in receiving an increased FTE does not warrant an inference that Complainant is the victim of unlawful disparate treatment.

On May 22, 1998, Complainant initiated a conversation with Knaack by asking about a 100% FTE contract and Knaack responded that he was still looking into the matter. This conduct of Knaack's reasonably gives rise to an inference that, as of May 22, 1998, Knaack

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had not made a decision to either offer Complainant a 100% FTE, or to deny Complainant a 100% FTE.

In summary, Sheehan's stated reason for scheduling Complainant to an "extra" French section is not inherently incredible and is consistent with other record evidence. The record provides no reasonable basis to discredit this testimony of Sheehan. Nor does the record provide a reasonable basis to conclude that, at any time prior to May 22, 1998, Sheehan, or any other administrator, had made the decision to assign an "extra" section of French to Complainant or to otherwise increase Complainant to a 100% FTE.

According to Knaack, on May 18, 1998, he was not willing to increase Complainant to 100% FTE because he had a variety of concerns, i.e., Knaack did not approve of Complainant's relationship with Berns; Knaack considered Complainant's lawsuit against Soto and Martin to have negatively affected the atmosphere in the Junior High Building; and Knaack was uncertain as to whether or not Berns would be available to teach the extra section. Complainant argues that Knaack's reservations regarding Complainant's conduct are pretextual and that Knaack was not willing to increase Complainant to a 100% FTE because Complainant had engaged in protected, concerted activity.

As discussed above, prior to May 18, 1998, Knaack had not engaged in any activity that would provide a reasonable basis to infer that, at that time, Knaack was hostile to Complainant's protected, concerted activity. The testimony of High School Principal Johansen does not rebut Knaack's testimony that, on May 18, 1998, Knaack was not yet aware of the availability of Berns. Knaack's testimony on this point is supported by Complainant's own written statement, which indicates that, as late as May 28, 1998, Knaack told Complainant that Knaack was still not sure of Berns' availability.

On May 18, 1998, Knaack's knowledge of Berns' prior complaints provided Knaack with a reasonable basis to be concerned about Complainant's relationship with Berns. Knaack's claim that Complainant was responsible for the poor relationship with Berns is consistent with the judgments of Solsrud, the immediate supervisor of both Berns and Complainant. Prior to the time that Complainant engaged in any protected, concerted activity, Knaack responded to Berns' complaints in a manner that indicates that he gave credence to these complaints. For example, Knaack responded to Berns' complaint that Complainant not interrupt her when she was in the classroom and that Complainant not be in her classroom while she was teaching by, initially telling Complainant to not be in Berns' classroom while Berns was teaching and then by providing Complainant with a desk in another classroom. Knaack made his July 25, 1997 classroom assignment decision, in part, on the basis that Berns did not want Complainant in the vicinity when she was teaching. Prior to the start of the 1997-98 school year, Knaack had discussed Bern's complaints against Complainant with Dodd.

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Knaack's claim that, on May 18, 1998, he did not approve of Complainant's relationship with Berns is credible. The fact that, during the 1997-98 school year, Knaack was not asked to intervene between Berns and Complainant does not warrant the conclusion that, on May 18, 1998, Knaack could not have been legitimately concerned about Complainant's relationship with Berns.

Knaack acknowledges that, on May 18, 1998, his opinion regarding the atmosphere in the Junior High was not based on conversations with any teacher, but rather, was based upon his belief that teachers in the Junior High School building were unnaturally quiet. In Knaack's opinion, the unnatural quiet was due to the fact that Complainant's colleagues were concerned that they would be sued if they said something inappropriate. Given the nature of the Soto-Martin lawsuit and the evidence of teacher reaction thereto, Knaack's claim regarding the unnatural quiet at the Junior High and Complainant's responsibility for the same is credible.

In summary, Knaack's claim that, on May 18, 1998, he was unwilling to offer Complainant a 100% position because Knaack did not approve of Complainant's relationship with Berns; Knaack considered Complainant's lawsuit against Soto and Martin to have negatively affected the atmosphere in the Junior High building; and Knaack was uncertain as to whether or not Berns would be available to teach the extra section is credible. The evidence of Knaack's conduct prior to May 18, 1998, supports the conclusion that Knaack's professed concern about Complainant's relationship with Berns is bona fide.

Complainant's claim that Sheehan had assigned Complainant to a 100% position and that Knaack, thereafter, blocked this assignment in retaliation for Complainant's exercise of protected, concerted activity is not supported by the evidence. Rather, the evidence of conduct occurring through May 28, 1998, reasonably leads to the conclusion that, as of that date, Knaack had not made a decision to assign Complainant to an extra French section because Knaack had legitimate concerns regarding Complainant's behavior.

Dodd's testimony consistently demonstrates that, at the staffing meeting in May, 1998, Dodd mentioned that Complainant had previously expressed a concern that the administrators would retaliate against Complainant. Dodd's testimony also consistently demonstrates that Dodd mentioned this concern for the sole purpose of cautioning the other administrators that they could expect some type of legal repercussion if a 100% French position were available and Complainant were not raised to 100% FTE. This conduct of Dodd does not provide a reasonable basis to infer that Dodd is hostile to the exercise of protected, concerted activity.

To be sure, Complainant expressed a concern that the administrators would retaliate against Complainant in his October 29, 1997, grievance. Complainant, however, also expressed such a concern in other forums. By mentioning such a concern, Dodd was not discussing Complainant's grievance. Neither the evidence of Dodd's conduct at the May

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staffing meeting, nor any other record evidence, demonstrates that Dodd lied when he stated that he had not discussed the October 29, 1997 grievance with Knaack from the time of the School Board's January, 1998 decision on the grievance until the time that Dodd decided to recommend Complainant's layoff.

The evidence of conduct prior to May 27, 1998, does not provide a reasonable basis to conclude that Knaack, Dodd, or any other administrator or School Board member, is hostile to Complainant's protected, concerted activity. Nor does such evidence provide a reasonable basis to conclude that Knaack, Dodd, or any other administrator or School Board member, failed to give Complainant a 100% position because of hostility to Complainant's exercise of protected, concerted activity.

Complainant claims that he engaged in protected, concerted activity from May 28, 1998, through June 2, 1998, and that Dodd and Knaack were hostile to this activity. To judge the merits of this claim, it is necessary to consider a series of events beginning in late May of 1998.

At the end of May, 1998, District teacher Kathy Heller stood outside the door of a room in which faculty were celebrating the retirement of a colleague. According to Heller, she was outside the room because she wanted to see if Complainant intended to enter the room; that, at the time, Heller feared that Complainant would do something physically violent because she believed that Complainant had become irrational about "some things;" and that Heller did not observe Complainant engage in any conduct that would cause her to conclude that he would "snap," but rather, based her conclusion regarding Complainant's irrationality upon what she had heard about the lawsuit against Soto and Martin, Complainant's note to Maki, and her understanding of an argument in the office involving Complainant. The fact that Heller now believes her fears to have been irrational does not alter the fact that, in May, 1998, Heller was genuinely apprehensive. Knaack, who attended this retirement celebration, was aware of Heller's conduct.

Heller also sent an unsolicited FYI note to Knaack, dated May 27, 1998, that states, in relevant part, "It is my perception and the perception of many others that the situation with George has become really uncomfortable. He makes me and many others uneasy. I do feel somewhat fearful of him at the Jr. High." In late May or early June of 1998, Knaack received an unsolicited FYI note from District employees Carol Tuszka, Sue Leider, and Kathy Pietsch that stated "We feel threatened by the unstable environment George Mudrovich has created in this building."

It is not evident that the District administrators had a reasonable basis to conclude that Heller, Tuszka, Leider, and Pietsch are untrustworthy. Thus, it is reasonable that Knaack and other District administrators having knowledge of the FYI's signed by these District employees

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would conclude that Heller, Tuszka, Leider, and Pietsch were fearful of, or felt threatened by, Complainant. The fact that Knaack and other District administrators did not react to the concerns expressed by Heller, Tuszka, Leider, and Pietsch by immediately taking action to remove Complainant from the premises or to discuss the FYI's with Complainant does not warrant the conclusion that the District's administrators could not be legitimately concerned about the fears and/or anxieties expressed by Heller, Tuszka, Leider, and Pietsch.

On May 27, 1998, Complainant ran an errand at a time in which he was scheduled to supervise his IMC study hall. Sheehan, who happened upon Complainant as Complainant was in the hallway, told Complainant that he needed to be in his study hall because Sheehan did not want the substitute to be alone in the study hall. Complainant responded, "OK" and returned to his study hall.

Complainant was not engaged in protected, concerted activity when he was running an errand at a time in which he was supposed to be in his IMC study hall. The evidence of Sheehan's conduct on May 27, 1998, does not provide a reasonable basis to infer that Complainant is the recipient of unlawful disparate treatment, or that Sheehan is hostile to Complainant's exercise of protected, concerted activity.

On the morning of May 28, 1998, Complainant went to Knaack to inquire about the status of his teaching contract. When Knaack told Complainant he wanted to see Complainant, Complainant asked "What about now?" Knaack documented Complainant's comment as "loud and negative." Recalling that Sheehan had recently reminded Complainant of the need for Complainant to be in his study hall, Knaack told Complainant that he needed to be in his study hall. Complainant then left the area.

During this encounter with Knaack, Complainant was not engaged in protected, concerted activity for the purpose of collective bargaining or other mutual aid or protection. Knaack's response to Complainant's conduct provides no reasonable basis to infer that Complainant is the recipient of unlawful disparate treatment, or that Knaack is hostile to any protected, concerted activity.

Shortly after noon on May 28, 1998, Complainant was scheduled to be in the IMC study hall with Bjorklund. At that time, however, Complainant was in the main office of the Junior High, depositing money for the French Club. Sheehan walked up to Complainant; confirmed that Complainant was supposed to be in the IMC; and told Complainant to return to the IMC. Complainant, believing that on May 27, 1998, Sheehan had indicated that Complainant should not leave the study hall when there was a substitute teacher, responded that Bjorklund was in the IMC study hall. Sheehan indicated that it was a two-person study hall and that Complainant and Bjorklund were both needed there. Complainant responded that he was just going to take a minute to deposit the money and told Sheehan that Complainant and

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Shirley occasionally leave for a couple minutes at a time. Sheehan then told Complainant "You need to go back to your study hall now, I don't have time to discuss this." Complainant, who considered Sheehan to be acting inappropriately, asked if Sheehan enforced the rule so closely with all the other IMC supervisors because Knaack had issued a memo at the beginning of the semester that all IMC supervisors must be in the IMC at all times. Sheehan responded more sternly "I'm not going to discuss this with you. Go back to the Study Hall now." When Complainant responded by inquiring if Sheehan was going to treat him differently from other teachers, Sheehan told Complainant to go to his study hall now. As Complainant left the office, he told Sheehan "I'll show you the memo." The referenced memo was the January 1998 memo from Knaack to IMC supervisors.

Vicki LaPorte, who observed the May 28, 1998, exchange between Sheehan and Complainant, considered Sheehan to have acted respectful toward Complainant. LaPorte considered Complainant's interaction with Sheehan to be unusual because, in her experience, a teacher who received an instruction from Sheehan generally followed that instruction and, if the teacher disagreed with the instruction, the teacher would come back later to discuss it with Sheehan. LaPorte did not document this encounter between Sheehan and Complainant. Shortly after the encounter, Sheehan documented this encounter on a student referral form that went to Knaack.

Complainant was not engaged in protected, concerted activity when he went to the office to deposit money for the French club, rather than remaining in his IMC study hall as assigned. Nor was Complainant engaged in protected, concerted activity when he ignored a work directive of an immediate supervisor and sought to argue with his supervisor over this work directive in the presence of other staff. The fact that Complainant raised an issue as to whether or not he was being treated differently from other IMC supervisors does not convert Complainant's conduct into protected, concerted activity.

Complainant's conduct during this confrontation with Sheehan provides District administrators with a reasonable and legitimate basis to doubt Complainant's professionalism. Especially in view of the fact that, the day before, this same supervisor had reminded Complainant that he needed to be in his IMC study hall. The evidence of Sheehan's conduct on May 28, 1998, does not provide a reasonable basis to infer that Complainant is the recipient of unlawful disparate treatment, or that Sheehan is otherwise hostile to the exercise of protected, concerted activity.

At the end of the workday on May 28, 1998, Complainant went to Knaack's office to ask about teaching the "extra" French section. Given the length of the May 28, 1998, conversation; Complainant's obvious agitation during this conversation; the evidence that Complainant constructed his account of the conversation after the meeting ended; and the lack of evidence that Complainant has the ability of total recall, it would not be reasonable to

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conclude that Complainant's May 28, 1998, account is a verbatim account. The record, however, provides a reasonable basis to conclude that in this account, as well as in the other accounts that were written shortly after an encounter, it is likely that, when Complainant attributes a statement to an individual, that this statement, or a similar statement, was made by the individual. The record provides a reasonable basis to conclude that Complainant is less reliable when he is reporting tone of voice and demeanor. To that end, Complainant's conclusions that matters were discussed "confrontationally" or that an individual was "hostile," are not persuasive, per se.

Complainant's written account of this May 28, 1998 conversation indicates that Complainant initiated this conversation by inquiring whether there would be an extra section of French for Complainant to teach; that Knaack responded that he had to think about whether or not Complainant would be professional enough to deserve the increase and that Knaack did not think that Complainant was; that he thought he might just hire someone at 20% FTE to fill that slot; that Complainant questioned whether or not Berns would be teaching the "extra" section of French and Knaack responded that he did not know; Complainant then complained that Knaack was not treating all IMC supervisors equally and advised Knaack that, when Complainant observed the 2nd period IMC, only one of the two assigned teachers were there; Knaack responded that he was not going to go around checking to see which teachers were and were not in the study hall; when Knaack asked Complainant why Complainant had not told Knaack that Heller and Pietsch were splitting the IMC duty, Complainant responded that it was not Complainant's job to enforce rules; at one point, Knaack raised his voice, jammed his finger on the desk and told Complainant that Complainant was being treated like everyone else; Complainant responded that he was not being treated like everyone else because Sheehan had talked to Complainant in a rude and hostile manner and he doubted that any other IMC supervisor had been talked to that way and complained that neither Knaack, nor Sheehan, bothered to check up on other IMC study hall supervisors; Knaack reiterated that he was not going to go around checking on people; Complainant understood that Knaack did not consider Sheehan to have acted improperly; Complainant then told Knaack that Complainant wanted an apology from Sheehan because Sheehan had "talked to Complainant in a hostile and demeaning manner," or Complainant would file a grievance; and then:

Bob then got hostile himself some more. He said "When are you going to start behaving like a professional? You always take everything so personal, and you're losing the respect of your colleagues. All this stuff you keep going on about should have been forgotten a long time ago, and your keeping on about it isn't helping your respect w/ your colleagues, it's hurting it. You need to stop thinking that it's George here, and everyone against you over there.

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Complainant's written account then indicates that Complainant blamed Knaack and Sheehan for Complainant's losing the respect of his colleagues; referred to the French room assignment controversy; and then:

We exchanged some more confrontational words, then I told him, "I want you to understand that if there is an extra slot open for French next year and you don't give it to me, you're going to have some trouble on your hands."

Bob replied, "I don't have to give you an extra section." Then I replied, "This is just like the other deal. You're not treating me like other teachers. I don't know of any teachers who have been at 60%, 70% or 80% who were told that they had to write a letter requesting a bump up to 100% if there were sections available, and that you asking me to do this shows that you aren't treatingme the same as other teachers."

Knaack asked for one example of not treating Complainant fairly this year and Complainant responded that he had been switched to an everyday study hall; Knaack explained why he made the switch; and, following further discussion on the IMC study hall:

The meeting ended by me just saying, "OK, I'm just going to let you know again that if there's a French slot that opens up & you don't give it to me, you're going to have trouble on your hands. And I want an apology from Mike Sheehan about the way he dealt with me, or I'm going to file a grievance tomorrow."

Bob said, "I'd never tell Mike Sheehan that he has to apologize to anyone."

I said, "Fine, you'll have my grievance tomorrow." Then I left.

During this conversation, Complainant placed Knaack on notice that Complainant would file a grievance if Sheehan did not apologize for his conduct on May 28. As set forth in Knaack's written notes of this meeting, Knaack understood Complainant to have also indicated that Complainant would file a grievance if he did not get a full-time job.

Complainant engaged in protected, concerted activity when he announced an intention to file a grievance. It is evident, however, that this exercise of protected, concerted activity occurred after Knaack expressed doubt that Complainant was professional enough to have his teaching duties increased and after Knaack indicated that he was considering hiring someone else for any "extra" French section because Knaack had doubts about Complainant's professionalism. On that date, Complainant did not ask Knaack to explain why Knaack had to

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think about whether or not Complainant was "professional enough" to deserve an increased contract. Nor did Knaack offer an explanation.

Prior to this time, Complainant had engaged in various behaviors that did not involve protected, concerted activity and which provided Knaack with a reasonable and legitimate basis to doubt Complainant's professionalism. This prior conduct included the "loud and negative" behavior toward Knaack that had occurred earlier on May 28, 1998, as well as Complainant's conduct toward Sheehan that had occurred earlier on May 28, 1998. Prior to this time, Knaack had not displayed hostility to Complainant's exercise of protected, concerted activity.

Within context, and in light of previous conduct, it would not be reasonable to interpret Knaack's remarks that he doubted that Complainant was professional enough to have his teaching duties increased and that he was considering hiring someone else for any "extra" French section as evidence of hostility to Complainant's protected, concerted activity in filing the October 29, 1997 grievance. Nor, given the fact that Complainant had not yet announced any intent to file a grievance if Sheehan did not apologize or if Complainant did not receive a 100% position, would it be reasonable to interpret Knaack's concern about Complainant's professionalism to reference either of these two grievances.

When Complainant first raised the issue of filing another grievance by telling Knaack "Look, I want an apology from Mike over the way he talked to me in such a hostile and demeaning manner, or I'm going to file a grievance on this, " Knaack responded:

"When are you going to start behaving like a professional? You always take everything so personal, and you're losing the respect of your colleagues. All this stuff you keep going on about should have been forgotten a long time ago, and your keeping on about it isn't helping your respect w/ your colleagues, it's hurting it. You need to stop thinking that it's George here, and everyone against you over there."

The above criticism of Complainant's professionalism follows immediately upon the heels of Complainant's statement that he would file a grievance. This juxtaposition, standing alone, reasonably implies that Knaack considers filing a grievance to be unprofessional. However, within the context of the entire conversation, the more reasonable construction is that Knaack is being critical of Complainant's judgment that (1) Complainant is being singled out and (2) Sheehan's conduct is hostile and demeaning.

When Complainant first indicated that Knaack would be in trouble if Complainant did not receive an available French section, Knaack responded by stating that he did not have to give Complainant an extra section. On its face, and within the context of the entire discussion, this response of Knaack's was nothing more than the expression of an opinion that

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Complainant did not have a right to the extra section of French. When Complainant next indicated that Knaack would be in trouble if Complainant did not receive an available French section and reiterated his intent to file a grievance if he did not receive an apology from Sheehan, Knaack made no response other than to advise Complainant "I'd never tell Mike Sheehan that he has to apologize to anyone."

In summary, during this conversation with Knaack, Complainant engaged in protected, concerted activity when he announced his intention to file two grievances. The evidence of Knaack's conduct during this conversation does not provide a reasonable basis to infer that Knaack is hostile to such protected, concerted activity, or to any other protected, concerted activity.

On May 29, 1998, Complainant noisily entered the main office of the Junior High and confronted Sheehan, who was with a student. Other students and staff were in the office at this time. During this confrontation, Complainant loudly asked Sheehan if Sheehan had checked to see if Heller and Pietsch were in the study hall; was advised that Sheehan had not; and demanded that Sheehan explain why he had not. Sheehan responded that he had not had the time. Complainant responded by stating his opinion that Sheehan was enforcing the IMC rule against Complainant, but that Sheehan was not interested in enforcing the rule against other teachers. Sheehan made no response to this and Complainant left the area. Sheehan's notes of this interaction indicate that Complainant used a tone of voice that could be considered insubordinate.

LaPorte observed this confrontation and documented this conversation. LaPorte had not previously documented the conduct of a teacher, but had routinely documented the behavior of students who lost control in the office.

During this confrontation with Sheehan, Complainant was asserting that he was the victim of disparate treatment. Complainant, however, did not assert rights under the DCETA collective bargaining agreement. Nor is it evident that he asserted a right on behalf of any employee other than himself. The evidence of Complainant's behavior manifests and furthers an individual, rather than a collective, concern. Complainant was not engaged in protected, concerted activity for the purpose of collective bargaining or other mutual aid and protection during this encounter with Sheehan.

Neither the evidence that Sheehan considered Complainant's tone of voice to be "insubordinate," nor any other credible evidence of Sheehan's conduct toward Complainant during this encounter, provides a reasonable basis to infer that Complainant is the recipient of unlawful disparate treatment, or that Sheehan is hostile to Complainant's exercise of protected, concerted activity. Complainant's conduct during this confrontation with Sheehan is disrespectful of his supervisor and disruptive of the District's normal business operations.

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Later in the day on May 29, 1998, Complainant and Association Representative Gums Tuszka met with Knaack and Sheehan. During this meeting, Knaack confirmed that he considered some of Complainant's conduct to be unprofessional. The only conduct that Knaack defined as "unprofessional" was "You coming in here yesterday like you did was unprofessional."

Complainant asserts that, by stating, "You coming in here yesterday like you did was unprofessional," Knaack is saying that Complainant was unprofessional when Complainant indicated that he would file a grievance if he did not get a full-time position or if Sheehan did not apologize. Giving consideration to the evidence that "yesterday" Complainant was in the office on two occasions to see Knaack and on one occasion to see Sheehan; that on the first occasion with Knaack, Complainant was not engaged in protected, concerted activity and Knaack considered Complainant to have been loud and negative; on the occasion with Sheehan, Complainant was not engaged in protected, concerted activity and acted in a manner that was disrespectful of his supervisor and disruptive of the District's normal business operations; that Knaack had knowledge of Complainant's conduct towards Sheehan; that on the second occasion with Knaack, Knaack questioned Complainant's professionalism prior to Complainant announcing any intent to file a grievance; that Knaack's documentation of the first encounter, unlike Knaack's documentation of the second encounter, indicated that Complainant's behavior was inappropriate, Complainant's interpretation of Knaack's remark "You coming in here yesterday like you did was unprofessional" is not persuasive. Within context, and in light of previous behavior, this remark of Knaack's does not provide a reasonable basis to infer that Knaack was exhibiting hostility to Complainant's protected, concerted grievance activity.

Complainant's notes indicate that he asked "Did you tell me yesterday that you had not yet decided whether you recommend me for that slot for the reason that you thought I wasn't being professional?" and Knaack responded "No, I did not say that." Given the fact that Knaack had said something quite similar to this, Complainant argues that Knaack is a liar. Knaack, however, had just acknowledged that he thought some of Complainant's actions were unprofessional and that he had not made a determination on whether he would recommend Complainant for the "extra" section of French. Thus, the more reasonable conclusion is that Knaack was not lying, but rather, either was not recalling what he had said "yesterday," or was denying that he made the exact statement that was attributed to him by Complainant.

On Monday, June 1, 1998, Complainant went into the office and had a conversation with Sheehan. Complainant's June 7, 1998, account of this conversation indicates that Complainant asked Sheehan if Sheehan had checked to see if Baxter and Nyenhuis were both in the IMC, as the rules require; Sheehan responded no; Complainant asked "Why not?"; Sheehan responded that Complainant knew the answer to that; and that Complainant ended the conversation by voicing his opinion that Sheehan was going out of his way to enforce the rules against Complainant, but that Sheehan did not even care if other teachers followed the same rules.

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During this confrontation with Sheehan, Complainant was asserting that he was the victim of disparate treatment. Complainant, however, did not assert rights under the DCETA collective bargaining agreement. Nor is it evident that he asserted a right on behalf of any employee other than himself. The evidence of Complainant's behavior manifests and furthers an individual, rather than a collective, concern. Complainant was not engaged in protected, concerted activity for the purpose of collective bargaining or other mutual aid and protection during this encounter with Sheehan. Sheehan's conduct during this confrontation does not provide a reasonable basis to infer that Complainant is the recipient of unlawful, disparate treatment or that Sheehan is hostile to Complainant's lawful, concerted activity.

On June 1, 1998, in response to a request from Knaack, Jaworski posted a 30% position that included one section of French and two supervisions. By its terms, the 30% posting was open until 4:30 p.m. on June 19, 1998. On June 1, 1998, Complainant applied for this 30% position by submitting a handwritten letter to Jaworski that includes the following:

Re: French Position at D.C. Everest Junior High for the 1998-99 School Year

Dear Jim:

Although I highly resent that I was not given this extra available section as a matter of course, and that this offer to me was not made because of my efforts to get Roger Dodd, Bob Knaack and Mike Sheehan disciplined for their hostile actions toward me personally, I hereby give notice that I am indeed interested in teaching that extra session, which would raise me from 80% FTE to 100% FTE.

The letter was cc'd to Dodd, Knaack and Sheehan.

When Complainant submitted this letter to Jaworski, he had a discussion with Jaworski. During this discussion, Complainant understood Jaworski to say that it was not the standard practice of the District to offer extra sections to part-time teachers as they become available. When Complainant asked Jaworski to sign Complainant's notes of this conversation, Jaworski refused. In Complainant's opinion, Jaworski became rather upset when Complainant pressed Jaworski to sign a paper indicating that he had refused to sign Complainant's notes.

Given the evidence that Knaack was undecided about offering Complainant the "extra" French section on May 28, 1998 and the evidence that, on May 29, 1998, Knaack told Complainant and Tuszka, that he would post the French section about June 2, 1998, it is reasonable to conclude that Knaack made this posting decision some time between these two meetings.

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According to Knaack, he requested the 30% posting because he needed additional supervision for the 1998-99 school year; he did not want to raise Complainant to a 100% position; and he was optimistic that he could attract a French teacher with a 30% position. Complainant argues that these reasons are pretextual and that Knaack's true motive in posting the 30% position was to retaliate against and/or discourage Complainant's protected, concerted activity. Complainant asserts that the 30% posting provides evidence that Knaack is hostile to Complainant's protected, concerted activity.

At the arbitration hearing, Knaack denied that on June 1, 1998 he had already decided that he did not want Complainant to be a 100% FTE. (Tr. 1025) At first blush, this appears to be contradictory to his testimony in this hearing. However, within context, Knaack's testimony contains a denial that he had decided that Complainant could never be a 100% FTE teacher and suggests that, if Knaack could not hire another French teacher, Complainant would be a candidate for a 100% position.

The complaint does not raise a statutory allegation with respect to the Respondent's conduct in posting the 30% position on June 1, 1998. Thus, the Examiner does not have jurisdiction to determine whether or not this posting violated MERA. The Examiner may consider evidence of this posting to determine the existence, or non-existence, of hostility to protected, concerted activity.

As a result of a change in the 9th grade teaching structure, there was a need for additional supervision in the 1998-99 school year. In the past, adding such a supervisory assignment had increased Complainant's contract.

Knaack's claim that he needed additional supervision and Knaack's claim that he wished to obtain this additional supervision by using a part-time teacher are credible. The record provides no reasonable basis to discredit Knaack's claim that he believed that he could attract another French teacher if he posted a 30% position. Complainant's argument that the French program's needs could have been met with a 20% position is correct, but irrelevant.

According to Knaack, he did not want to increase Complainant to a 100% position because Knaack was dissatisfied with Complainant's relationship with his co-workers and Knaack considered Complainant to be responsible for a negative atmosphere in the Junior High. Complainant argues that Knaack's professed concerns are pretextual because there had been no material change in either Complainant's relationship to his co-workers or the atmosphere in the Junior High that would cause Knaack to take such action at that point in time.

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Complainant conduct that occurred prior to the 1997-98 school year and, thus, prior to any protected, concerted activity upon the part of Complainant, provided Knaack with a reasonable basis to be concerned about Complaint's relationship to his co-workers and Complainant's negative effect upon the Junior High. Heller's conduct at the retirement party of late May, 1998; the FYI's received in late May and early June, 1998; Complainant's conduct toward Sheehan in late May; and Knaack's dissatisfaction with the manner in which Complainant approached Knaack on the morning of May 28, 1998 were recent events that provided Knaack with a reasonable and legitimate basis to become significantly more concerned about Complainant's relationship with his co-workers and Complainant's negative affect on the atmosphere in the Junior High.

As Complainant argues, Knaack's decision to not offer available work to an available part-time teacher is contrary to the District's customary practice. However, Complainant's conduct toward other staff, including supervisory staff, and staff reaction to Complainant's conduct is not customary either. The evidence that the District did not follow the customary practice of offering available work to part-time employees does not reasonably give rise to an inference that Complainant is the recipient of unlawful disparate treatment, or that Knaack, or any other agent of the District, is hostile to Complainant's protected, concerted activity.

Knaack's avowed rationale for posting a 30% position is not inherently incredible. Notwithstanding Complainant's arguments to the contrary, Knaack is not required to offer an explanation of why he did not first consult with Solsrud. Neither Dodd's testimony that, in his experience part-time teacher's left the District if they were not increased to full-time, nor any other record evidence, provides a reasonable basis to conclude that Knaack's posting of the 30% position was constructive discharge, or any other attempt to drive Complainant from the District.

Knaack expressly denies that Complainant's grievance activity was a factor in his decision that he did not want to increase Complainant to 100% FTE. (Tr. 1286) At the time of the posting, Complainant had filed only one grievance, i.e., on October 29, 1997 and had announced an intent to file two grievances.

At hearing, Knaack was asked if the grievances that Complainant had filed were a factor in his decision to make the recommendation that Complainant be laid off under Article 32(I) and Knaack responded "No." (Tr. 1148-49) Knaack was then asked to read from Page 908 of the transcript of the prior arbitration hearing:

(Question by Mr. Rutlin): Okay. In terms of your thought processes just having George increase from 80% to a hundred percent, as opposed to issuing the layoff notice and then having him apply with other outside applicants, kind of go through your thought process on that decision.

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(Answer by Mr. Knaack) Well, like I said, George had sued colleagues, that was on my mind. George had a confrontation with Mr. Sheehan. He had threatened Mr. Sheehan and myself. He had a number of grievances, you know, that were being filed for different situations. All those things, I, you know, I thought, well, maybe there's someone out there that we should look at that maybe is as good or better than Mr. Mudrovich.

After reviewing the above testimony, at hearing Complainant asked Knaack the following:

Q: Does that refresh your memory about what you were considering when you decided to recommend my layoff?

A: That was ---the question was my thought process.

Q: Okay.

A: Not my decision making.

Q: Do you see a difference between the thought process and the decision making process?

A: I do; yes (Tr. 1150)

. . .

Q: And it ­ "All those things," comma, "I" comma, "you know, I thought, well," comma, were you trying to communicate the things that you had mentioned just about what led you to believe that there was someone else to look for?

A: In my thought process; yes. (Tr. 1151)

As noted at hearing, the arbitration transcript includes the following exchange between Association Attorney Pieroni and Knaack:

Q: Right. Uh-huh. Right. You had never seen a grievance like George's grievance that was - - you testified that you were at the Board hearing in which he asked for discipline against the superintendent, the principal and the assistant principal. That was another first for you, I assume?

A: Yeah. I've never seen that, no. I mean, it didn't shock me, I guess, but--

Q: But it seemed?

A: I never seen it. I mean, I hope my relationship with staff is such that they wouldn't have to grieve myself, Dr. Dodd, or Mr. Sheehan.

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Q: Okay. And I take it from your testimony, that that was the grievance, you testified to on direct, that you took into consideration when you recommended that George be laid-off and to have to compete for a full-time job?

A: No.

Q: Well, you said the grievance, and you didn't articulate what it was. Was there another one?

A: Well, George filed a number of grievances. Some of them didn't go anyplace, you know.

Q: Okay. Uh-huh. Well, this grievance was the most significant one, I guess, as far as I know. Up until ­

A: It was hard to keep track, because there were different ones filed, but then they were kind of combined. You know, to be honest with you, the grievance is not a big issue in my mind, at all. In fact, it's ­ you know, I probably shouldn't even have brought it up, because it really didn't make a major affect on me at all, the grievance.

Q: So are you retracting your earlier testimony that the grievance was a factor?

A: Not a major factor, no.

Q: Does it make you uncomfortable that you said that the grievance was a factor?

A: No.

(P. 967-9)

The hearing before this Examiner contained the following exchange between Complainant and Knaack:

Q: Okay. After that direct testimony, did you ever attempt to retract that testimony, that the grievances played a part or that you were thinking about grievances when you decided to look for somebody else?

A: Grievances are not a factor in my decision making.

Q: Did you ever attempt to retract the testimony that you gave that grievances were part of your thought process when you were thinking about the decision to lay me off? Yes or No?

A: As I said before, thought process and decision-making process are two different things in my mind. (Tr. 1158 ­ 1159)

. . .

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Q: Do you wish to retract today, the statement that you made to the arbitrator in July of 1999, that my grievances were part of your thought process when you were thinking about laying me off under Article 32(I)?

A: Thought process, but not decision making process.

Q: Well, you're - -

A: I see a definite difference there. (Tr. 1159 ­ 1160)

. . .

Q: In your thought process. I beg your pardon. You did confirm that my grievances were in your thought process at the time that you decided to recommend my layoff to Dr. Dodd; is that correct?

A: In my thought process; correct.

Q: Did you share those thought with Dr. Dodd?

A: Well, I made ­ my decision making process was put into effect when I went to see Dr. Dodd for that layoff. ( Tr. 1176)

. . .

Q: When you contacted Dr. Dodd, to tell him that you wanted to recommend my Article 32(I) layoff, did you and Dr. Dodd discuss it?

A: Yes, we did.

Q: What was that discussion.

A: Focused on the reasons that I would be making that decision. (Tr. 1177)

. . .

Q: Okay. Was the fact that I had filed grievances a motivating factor for you to decide to recommend my Article 32(I) layoff?

A: Absolutely not.

Q: Have you ever said anything to the contrary of the answer you just gave me?

A: Not in my decision making; no. (Tr. 1211-12)

. . .

A: Your grievances were not a factor in making my decision for layoff.

(Tr. 1216)

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. . .

Q: In your ­ during your direct examination, during the arbitration when you were being asked questions by Mr. Rutlin, did you say that my having filed grievances was a motivating factor in your decision to recommend my

Article 32(I) layoff?

A: No, it was not a factor.

Q: Did you say it was a factor, yes or no?

A: No. (Tr. 1221)

. . .

Q: I'm looking at Line 8. And you were asked the question by Mr. Pieroni, so are you retracting your earlier testimony that the grievance was a factor, and you answer was "Not a major factor; no." What did you mean by that?

A: That ­ you're asking me that question?

Q: Yes.

A: In my thought process only, not in my decision making. And that was relating to the testimony or the question by Mr. Rutlin earlier. (Tr. 1223)

. . .

Q: Okay. I want to get away from what he brought up until May 18th. But clearly on June 1st, you had made the decision, and I believe this, I'm not mischaracterizing this. You did testify that on June 1st, it was your opinion that you did not want me in particular to be a 100 percent teacher; is that correct?

A: Yes.

Q: When did you first come to that conclusion?

A: I can't recall.

Q: Well, do you think you did it a week before that or six months before that or when?

A: I can't recall the exact time in that thought process.

Q: Well, I'll put it in a different time frame. Did you decide that before I filed my first grievance or after I filed my grievance?

A: It had nothing to do with grievances. (Tr. 1285-86)

. . .

Q: Okay. Is it your opinion that I was a person who filed grievances frivolously when I was a teacher at D.C. Everest?

A: Filed more grievances than any other teacher I recall.

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Q: How many grievances did I file before I was laid off?

A: I don't really recall if there one or two there. I don't know. Some were combined.

Q: But prior to me being laid off ­ you know I filed the October 29, 1997 grievance before I was laid off, correct?

A: Yes. (Tr. 1543)

. . .

Q: But you're saying that I filed more grievances than anybody else?

A: As an individual, yes.

Q: And so if I filed one or two grievances, that's more than any other teacher filed?

A: Yes, George. (Tr. 1543)

The most reasonable construction of Knaack's testimony, supra, is that Knaack thought about the fact that Complainant had filed more than one grievance when he considered laying off Complainant, but that grievances were not a factor in his decision to not increase Complainant to a 100% position. Given this testimony of Knaack's; the failure of the record to demonstrate that, as of June 1, 1998, Knaack had displayed hostility to Complainant's protected, concerted grievance activity; and the fact that Knaack had legitimate reasons for posting a 30% position, the Examiner is persuaded that Complainant's grievance activity was not a factor in Knaack's decision to post the 30% position.

In his testimony, Knaack expressed a concern about the fact that Complainant had filed more than one grievance. Inasmuch as Complainant did not file more than one grievance until June 5, 1998, Knaack's testimony does not provide a reasonable basis to infer hostility to protected, concerted activity that predates June 5, 1998. Knaack's posting of the 30% position does not warrant the inference that Knaack is hostile to Complainant's protected, concerted activity.

Dodd approved of the 30% posting, but such approval was not needed for Knaack to post the 30% position because Knaack had the FTE available. At hearing before the Examiner, Dodd stated that Knaack told Dodd that Knaack was posting the 30% position because he did not want Complainant to be a 100% FTE teacher. (Tr. 610) At hearing before the Arbitrator, Dodd stated that he did not know why the posting was listed as a 30% French position. (732)

Knowing why the 30% French position was posted is not the same as knowing why it was listed as 30% French position. This testimony does not provide a reasonable basis to conclude that Dodd has testified untruthfully. Nor does it provide a reasonable basis to

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discredit Knaack's explanation of why he posted the 30% French position. Dodd's approval of the 30% posting does not provide a reasonable basis to infer that Dodd is hostile to Complainant's protected, concerted activity.

On June 2, 1998, Complainant distributed a note to certain Junior High employees who were in "his group." This note was in response to Complainant's understanding that there were rumors that District employee Holzem had "tattled" to Complainant about a birthday card that Maki had given Holzem last fall and Complainant wished to assure these employees that was not the case. This note included the following:

Carol had left that card on the table (standing upright) in the basement lounge for all to see.

The only reason this was brought up in the deposition of Carol Maki is that Carol simply refused to admit that her conversations with colleagues are often of an off-color nature (which is true of many adults; Carol only refused to admit this because she wanted to brand me as a verbally abusive person)

It's too bad that these things can end up getting innocent third parties involved, but it appears to me that all that should be laid at the doorstep of Shar Soto + Holly Martin, since they obviously instigated this whole affair in the nastiest, most dishonest way possible.

Surely they didn't consider that their refusal to own up to those actions and apologize for them (said refusal coming a long time before this went to court) would pull some of their friends into the mess that they (Shar + Holly) created. But they should have.

Knaack received a copy of this note from Holzem. On or about June 2, 1998, Knaack received a letter from Maki that states, "I am becoming very concerned about the escalating 'feud' between Mr. Mudrovich and several staff members and myself. His recent note and irrational words and actions make me very uncomfortable."

On or about June 2, 1998, Complainant met with Union Representative LaBarge to discuss filing a grievance on the 30% posting. This meeting with LaBarge involved the exercise of protected, concerted activity. It is not evident that Knaack, or any other administrator was aware of this meeting on June 2, 1998, or at any other time in June of 1998.

On June 2, 1998, Complainant entered the Junior High office during the first hour. LaPorte's contemporaneous written statement is entitled to be given more weight than Complainant's written account because he wrote that account several days after the event. The credible evidence establishes that, at this time, Complainant entered the main office and waited by Knaack's office; when Sheehan entered the office, Complainant walked across the office clapping his hands and tauntingly asked "Have you been over to the IMC to see if Baxter and

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Nyenhuis are both there?" Sheehan replied "No;" Complainant became loud and demanded "Why not?;" Sheehan, who was with a student, ignored Complainant; Complainant continued to question Sheehan in a loud and disrespectful manner; Sheehan escorted a student into his office; and Complainant rudely said, "So, you are just not going to answer any of my questions?"

On June 2, 1998, Complainant was asserting that he was the victim of disparate treatment. Complainant, however, did not assert rights under the DCETA collective bargaining agreement. Nor is it evident that he asserted a right on behalf of any employee other than himself. The evidence of Complainant's behavior manifests and furthers an individual, rather than a collective, concern.

Complainant was not engaged in protected, concerted activity for the purpose of collective bargaining or other mutual aid or protection during this encounter with Sheehan. The evidence of Sheehan's conduct during this interaction with Complainant does not provide a reasonable basis to infer that Complainant is the recipient of unlawful disparate treatment, or that Sheehan is hostile to protected, concerted activity.

Complainant's conduct on June 2, 1998 was disrespectful and disruptive of the District's normal business operations. Complainant's repeated forays into the office to interrogate Sheehan on the issue of whether or not Sheehan had monitored the activities of other IMC study hall supervisors may be reasonably construed to be harassing.

Sheehan directed Complainant to return to his study hall at times in which he observed that Complainant was in a place other than his assigned study hall. At no time did Sheehan monitor Complainant's conduct by checking Complainant's IMC study hall to determine whether or not Complainant was in the study hall. Sheehan's conduct in directing Complainant to return to his IMC study hall and in not checking up on other IMC supervisors does not provide a reasonable basis to infer that Complainant has been the victim of disparate treatment, unlawful, or otherwise. Nevertheless, Knaack responded to Complainant's claim of disparate treatment by questioning IMC study hall teachers to determine if they had left their assignments as reported by Complainant.

On June 2, 1998, Complainant returned to the main office during the second hour. Complainant observed Sheehan sitting at his desk and Knaack standing behind Sheehan. Sheehan and Knaack were reading something that was on Sheehan's desk. Complainant stood in the doorway to Sheehan's office and loudly asked "Have either of you two been in the IMC to check to see if Pietsch and Heller are both in there?" Knaack told Complainant to come into the office and shut the office door. LaPorte then cleared the main office of students so that they would not have to witness what she viewed to be a loud discussion. As LaPorte was starting to clear the office, Gilmore came out of her office and asked LaPorte to clear the office.

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LaPorte recalls that Sheehan, Knaack and Complainant were all talking loudly. Gilmore considered Sheehan and Knaack to be talking loudly, but considered Complainant to be yelling. Gilmore's opinion that Complainant was yelling is documented in her contemporaneous note.

Complainant was not solely responsible for the decibel level of this encounter. It is evident, however, that Complainant's conduct precipitated the ensuing loud discussion. During this discussion, Knaack told Complainant that Complainant had gotten the whole school in a turmoil, that it was going to stop and that Complainant was not going to order Sheehan to do anything any more; Complainant said he had not ordered Sheehan to do anything, but rather, had asked him to do various things; Knaack stated that Complainant walked around like he was king of the school and that Complainant had the whole school in an uproar; Complainant stated that, if there were any problems at the school, it was because Knaack and Sheehan had done their jobs poorly and that Knaack and Sheehan were being paid big bucks to make responsible decisions; Complainant referred to Soto and Martin and stated that Sheehan and Knaack were trying to put that on his shoulders, but it was not going to stay there because Sheehan and Knaack had mismanaged that; Complainant stated that Sheehan and Knaack had made their beds and would have to lie in them and "These things will come back to you in the course of time, just think about that;" Sheehan asked Complainant what he meant by this statement and Complainant told Sheehan that he was a big boy and could figure it out for himself; on several more occasions, Sheehan asked what Complainant meant by that statement; Complainant indicated that he was not going to be more specific, but that things were going to come back on Sheehan and not Complainant. During this conversation, Complainant also stated that Sheehan and Knaack were treating him differently; that they were not responding to his complaints by checking on the other study hall supervision; and now Sheehan and Knaack were posting the extra French section, rather than following the standard practice of giving it to the part-time teacher. Complainant ended the conversation by asking Knaack to step aside so that he could leave the office.

Complainant denies that he made the statement that Knaack and Sheehan had made their bed and would now have to lie in it. Given the credible evidence that Complainant was extremely agitated on June 2, 1998, it is likely that he would not recall everything that was said in the heat of the moment. Complainant has a propensity to make these types of statements. This statement was reported in a relatively contemporaneous document, i.e., the June 3, 1998 letter of discipline. The record provides a reasonable basis to conclude that Complainant is mistaken when he makes this denial and the Examiner so concludes.

In Complainant's opinion, the June 2, 1998 discussion with Knaack and Sheehan was quite unfriendly; Knaack was angry and belligerent; and Knaack stood by the door, as if he were barring Complainant from leaving. In Knaack's opinion, Complainant's temper was uncontrolled; Complainant repeated things violently; and Complainant made threatening

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remarks to Sheehan and Knaack. Knaack's view of Complainant's manner and demeanor is credible.

Given the nature of Complainant's remarks, as well as Complainant's manner and demeanor at the time that he made these remarks, Knaack's testimony that he considered Complainant to have made statements that were threatening is credible. Additionally, the statements contained in the following June 3, 1998 letter of reprimand corroborate this testimony:

It has been brought to my attention that you have, on more than one occasion, called Mr. Sheehan's attention to the fact that your fellow teachers may or may not be carrying out their professional responsibilities. Furthermore, I have been told that you have done so in an unprofessional manner while in front of junior high students and office staff. Please be advised that we do not see this as appropriate behavior for a member of our teaching staff.

I tried to make this perfectly clear when you walked into Mr. Sheehan's office at approximately 8:45 a.m. on June 2, 1998. Quite frankly, however, we are concerned that you may have missed the message since you exhibited behavior that could be described as out-of-control. Yelling loud enough so people in outer offices could understand you and so that students had to be moved to the guidance office is, again, not appropriate behavior for a member of our teaching staff.

Mr. Sheehan and I are very concerned about one of your final statements. You threatened us that we "made our bed and now we'd have to lie in it." When you were asked by Mr. Sheehan for clarification on your intended meaning you commented "These things will come back to you in the course of time, just think about that!" We find this statement that you made, more than once, to be a very threatening statement and remain concerned about your actual intent.

So there can be no misunderstanding, always be prompt to your teaching and supervising duties. Remain on duty for the entire time assigned.

Please be advised that any further actions of this nature may lead to further disciplinary actions including termination.

Notwithstanding Complainant's arguments to the contrary, by making statements that Knaack and Sheehan made their bed and now would have to lie in it and "These things will come back to you in the course of time, just think about that!", Complainant was not announcing an intent to file a grievance, or engaging in any other protected, concerted grievance activity. Nor does

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the record provide a reasonable basis to conclude that Knaack or Sheehan understood Complainant to have been making such an announcement.

During the encounter on June 2, 1998 with Sheehan and Knaack, Complainant asserted that he was the recipient of disparate treatment; rebuked Sheehan and Knaack; and made statements that Knaack could reasonably construe to be threatening. Complainant did not assert rights under the DCETA collective bargaining agreement. Nor is it evident that he asserted a right on behalf of any employee other than himself. Complainant's behavior during the June 2, 1998 encounter manifests and furthers an individual, rather than a collective, concern.

The evidence of Knaack's conduct during this June 2, 1998 confrontation provides a reasonable basis to conclude that Knaack was very unhappy about Complainant's recent conduct toward Sheehan; that Knaack considered Complainant to walk around like he was king of the school; and that Knaack considered Complainant's actions to have created turmoil throughout the Junior High. Knaack did not reference Complainant's grievance activity during the June 2, 1998 confrontation and the record provides no reasonable basis to conclude that, at that point in time, Knaack had any concern regarding Complainant's grievance activity. Complainant's recent conduct and Knaack's knowledge of the same provided Knaack with a reasonable and legitimate basis to conclude that Complainant had acted inappropriately toward Sheehan; that Complainant walked around like he was king of the school; and that Complainant had caused turmoil throughout the Junior High school.

During his June 2, 1998 encounter with Sheehan and Knaack, Complainant was not engaged in protected, concerted activity for the purpose of collective bargaining or other mutual aid or protection. The evidence of Knaack and Sheehan's conduct at the June 2, 1998 encounter does not provide a reasonable basis to infer that Complainant is the recipient of unlawful, disparate treatment, or that Knaack, or Sheehan, is hostile toward any protected, concerted activity.

The disciplinary letter of June 3, 1998 establishes that Knaack viewed Complainant's June 2, 1998 conduct to demonstrate not only that Complainant was not receiving his supervisors' message that Complainant's recent conduct was inappropriate, but also, that Complainant's response to this message was to lose control and threaten his supervisors. This view of Complainant's conduct is reasonable.

The June 3, 1998 disciplinary letter does not reference grievance activity and the record provides no reasonable basis to infer that the letter was in response to any protected, concerted activity of Complainant. Respondent's conduct in issuing the June 3, 1998 letter does not provide a reasonable basis to infer that Complainant is the recipient of unlawful, disparate treatment, or that Knaack, or Sheehan, is hostile toward protected, concerted activity.

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On or about June 4, 1998, Knaack received a FYI from employee Lois Klein, dated June 4, 1998, that states "As a side comment, I am concerned about the feelings/tension this building is suffering due to one person's 'thinking errors' and irrational behavior. It is so unfortunate that our lives are manipulated by one person's misuse of laws designed to protect true victims. In this case I think we are the victims."

On June 5, 1998, Complainant and LaBarge, acting as a Union Representative, met with Knaack regarding his decision to post the 30% position. LaBarge communicated the DCETA position that Knaack should give Complainant a 100% position and Knaack responded that would not happen.

During the ensuing conversation, Complainant questioned Knaack as to whether there had been a posting when Complainant previously had been increased from 50 to 65% and from 65 to 80%. Knaack initially responded that he did not know. Knaack subsequently confirmed that Complainant had been bumped from 3 to 4 classes because it was convenient for the District to do so. Complainant, who believed that Knaack had previously stated that he had to post the extra French section under District policy, asked why Knaack had not followed District policy when he had previously bumped Complainant. Knaack responded by asking Complainant if the District should not have done so and should the District now reduce Complainant's contract. During this conversation, Knaack explained that Complainant was assigned an extra French section on the "Master List" because a name was needed to generate the program; Complainant's name was selected because he taught French; and, therefore, Complainant should not be expecting, on the basis of the master schedule, to have a 100% position. At this June 5th meeting, LaBarge and Complainant filed a written grievance on the "Assignment of available French classes," which alleges that "Article 2-C applied in an arbitrary and capricious manner; Article 30."

Complainant was engaged in protected, concerted activity when he and LaBarge met with Knaack to discuss and file his June 5, 1998 grievance. Knaack provided LaBarge and Complainant with a reasonable opportunity to present their grievance. The evidence of Knaack's conduct during the June 5, 1998 grievance meeting does not provide a reasonable basis to infer that Knaack is hostile to Complainant's protected, concerted grievance activity.

Shortly after Knaack received the written grievance, he discussed it with Dodd. It is not evident that Knaack displayed any hostility to Complainant's protected, concerted activity during this discussion with Dodd.

When Knaack received the written grievance on the 30% French posting, he reviewed the contract to determine if there was a section that could be legally grieved; concluded that there was not; and denied the grievance. The evidence of Knaack's conduct in denying the grievance does not provide a reasonable basis to infer that Knaack is hostile to protected, concerted activity.

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Between June 4 and June 10, 1998, Knaack made the decision to recommend the layoff of Complainant. Complainant asserts that this decision of Knaack was motivated by hostility to Complainant's protected, concerted activity.

Knaack claims that he made this decision because he had reached the conclusion that the District could hire a 100% FTE French teacher who was as good, or better, than Complainant. According to Knaack, in reaching this conclusion he considered a variety of factors, e.g., the negative atmosphere in the Junior High school, including Complainant's less than exemplary relationship with Berns and the FYI's; the note that Complainant had written to Maki; the suit against Soto and Martin; Knaack's belief that Complainant had threatened Sheehan and Knaack on June 2; and the fact that Complainant had a number of grievances that were being filed for different situations.

At the time that Knaack reached the conclusion that the District could hire a 100% FTE French teacher who was as good, or better, than Complainant, Knaack had a reasonable basis to be concerned about the negative atmosphere in the Junior High school; the note that Complainant had written to Maki; the suit against Soto and Martin; and Complainant's June 2, 1998 confrontation with Sheehan and Knaack. The most reasonable construction of the record evidence is that Knaack's professed concern about these factors is bona fide.

The FYI's and Complainant's conduct on June 2, 1998 reasonably account for the change in opinion from June 1, 1998, when Knaack was willing to continue Complainant at 80% FTE. They also reasonably and legitimately account for the timing of the decision to recommend Complainant's layoff.

As the record establishes, Knaack discussed some of the "FYI's" with Dodd at the time that he advised Dodd of his decision to post the 30% position. The remainder was shown to Dodd at the time that Knaack recommended Complainant's layoff. Complainant's argument that Knaack could not have been legitimately concerned about the FYI's because he did not show them to Dodd until June 9 or 10, 1998 is not persuasive.

Knaack's testimony demonstrates that he also thought about the fact that Complainant had a number of grievances that were being filed for different situations when he reached the conclusion that the District could hire a 100% FTE French teacher who was as good, or better, than Complainant. By this testimony, Knaack has demonstrated that filing a number of grievances is a negative. Thus, Knaack's testimony has demonstrated that his decision to recommend the layoff of Complainant was motivated, in part, by hostility to Complainant's protected, concerted activity in filing a number of grievances.

Knaack claims that this grievance activity of Complainant was not a "major factor" in his layoff decision. Given the number of legitimate reasons for Knaack's decision to layoff

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Complainant; the nature of these legitimate reasons; the timing of these legitimate reasons; and the evidence of Knaack's discussion with Dodd at the time that Knaack recommended Complainant's layoff, Knaack's claim that Complainant's grievances were not a "major factor" in his decision to recommend Complainant's layoff is credible.

The Examiner notes that, by June 4, 1998, Complainant's behavior toward his supervisors had rapidly escalated from disregarding, to harassing, to threatening; that, from late May, 1998, through early June, 1998, Knack received four FYI's from six different employees expressing a variety of concerns about Complainant, including that he behaved irrationally and that employees were fearful of Complainant, or felt threatened by Complainant; that Complainant's letter of June 2, 1998 demonstrated that Complainant not only had not put his "feud" with Soto and Martin behind him, but also, that Complainant had broadened his "feud" to include Maki by publicly stating that Maki wanted to brand Complainant as a verbally abusive person; and that, as evidenced by the disciplinary letter of June 3, 1998, Complainant's June 2, 1998 behavior caused Knaack to doubt that Complainant was willing, or able, to alter his inappropriate behavior.

Knaack's decision to layoff Complainant was made prior to the time that the June 1, 1998 posting was supposed to be closed. As Complainant argues, Jaworski's testimony contradicts Knaack's testimony that there were other occasions in which a posting was closed early. It is not evident, however, that Jaworski, who has been the Supervisor of Personnel for six years, is privy to all of the same information as Knaack. This inconsistent testimony provides no reasonable basis to infer that Knaack is a liar.

At the time that Knaack made the decision to recommend the layoff of Complainant, the 30% posting became irrelevant because there was no longer a need to hire into this position. Thus, the fact that Knaack could not think of anything that happened prior to June 10, 1998 that would lead him to conclude that he would not find a part-time French teacher does not provide a reasonable basis to discredit Knaack's explanation of why he recommended the layoff of Complainant.

On or about June 9 or 10, 1998, Knaack met with Dodd and advised Dodd that the District had not received any applications for the 30% position. It is not evident that, at that time, the District had received any application other than that of Complainant. Inasmuch as Complainant was not eligible for a 30% position, Knaack's statement to Dodd does not demonstrate that Knaack is a liar.

Knaack told Dodd that he wanted to layoff Complainant because there had been altercations with Sheehan and Complainant in the presence of support staff and students and that Knaack had received FYI's that indicated that the staff was upset and concerned about Complainant's presence at the Junior High. Knaack also showed Complainant a copy of the

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June 2, 1998 letter that Complainant had written regarding Maki's birthday card. Knaack and Dodd then discussed Article 32(I) and the fact that, if Complainant were increased to 100% FTE, then the District would be deprived of an opportunity to improve upon the position.

The evidence that Knaack did not discuss with Dodd all of the factors that he claims to have considered when he decided to recommend the layoff of Complainant does not warrant the conclusion that Knaack did not consider these other factors. Rather, the most reasonable inference to be drawn from such conduct is that Knaack focused on the "major" factors.

Knaack states that he did not discuss Complainant's grievances when he recommended the Article 32(I) lay off to Dodd. This testimony is consistent with Dodd's testimony and provides support to Knaack's testimony that Complainant's grievances were not a "major factor" in his decision to layoff Complainant.

Knaack gave Dodd legitimate business reasons for recommending the layoff of Complainant. The record provides no reasonable basis to conclude that, at the time that Dodd received this recommendation, Dodd knew, or had any reasonable basis to know, that Knaack was hostile to any of Complainant's protected, concerted activity.

According to Dodd, in response to Knaack's recommendation that Complainant be laid off, he gave consideration to a variety of factors. It is not evident that one of these factors was that Knaack had made this recommendation.

According to Dodd, he made the decision to layoff Complainant because Dodd had concluded that it was possible to improve upon Complainant and that Article 32(I) provided the District with the opportunity to try and improve upon Complainant. According to Dodd, it was appropriate to apply Article 32(I) to Complainant because it was likely that the District could improve upon Complainant because Complainant had been hired from a small applicant pool; Complainant had demonstrated that he was not a team player; Complainant had alienated colleagues; and Complainant was responsible for a negative climate in the Junior High. According to Dodd, he concluded that Complainant was not a team player because Complainant did not act reasonably when he had disputes with others, always had to have his own way, and would do anything to get his own way. Dodd states that, in reaching these conclusions, Dodd gave consideration to Complainant's repeated questioning of Sheehan and Complainant's demand that Sheehan apologize. According to Dodd, his conclusion that Complainant was responsible for a negative climate at the Junior High was based upon Complainant's questioning Sheehan's authority in front of staff and students, Complainant's creating a disturbance in the Junior High office on more than one occasion, the FYI's that were submitted by Junior High staff and Complainant's lawsuit against Soto and Martin. In Dodd's opinion, this lawsuit had caused colleagues to avoid Complainant because they were afraid of confrontation and of being sued by Complainant. Dodd states that, in making his decision to

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layoff Complainant, Dodd read and gave consideration to Complainant's notes of the May 28, 1998 confrontation with Sheehan; the June 2, 1998 letter that Complainant had written regarding Maki's birthday card; Gilmore's note and the FYI's. Dodd also states that he gave consideration to his discussions with Sheehan regarding the recent confrontations that had occurred in the Junior High office; statements of LaPorte; and Complainant's recent written statement containing admissions of inappropriate conduct. According to Dodd, he was concerned about Complainant's conduct in repeatedly questioning Sheehan; in not returning to his study hall until after Sheehan had repeatedly directed Complainant to return to his study hall; in demanding that Sheehan apologize; and in causing students to be removed from the office. In Dodd's opinion, Complainant should have immediately complied with Sheehan's work directive and then returned at a later time to discuss any concerns. According to Dodd, he was particularly concerned about the fact that Complainant's inappropriate behavior towards Sheehan occurred in the presence of other staff and students. Dodd's testimony regarding these reasons for deciding to recommend the layoff of Complainant is credible.

Dodd's testimony demonstrates that, at the time that he decided to recommend the layoff of Complainant, Dodd had concluded that Complainant was obstinate; had to have his own way; and would have any kind of conflict to achieve his own way. Dodd's knowledge of Complainant conduct that was not protected by MERA provided Dodd with a reasonable basis to reach these conclusions. The record provides no reasonable basis to conclude that, in reaching these conclusions, Dodd gave any consideration to Complainant's grievance activity, or any other protected, concerted activity.

Dodd's testimony demonstrates that, in addition to the factors discussed above, Dodd's opinion of Complainant was influenced by Complainant's note to Maki; Complainant's proposal to resolve the French room controversy by requiring that most, if not all, of the senior foreign language teachers share rooms, while Complainant would have his own room; and Complainant's insistence on receiving the largest room for his French class, rather than accepting the room that had been assigned by Knaack. Dodd's testimony also demonstrates that a significant factor in Dodd's decision to layoff Complainant was Dodd's conclusion that, if staff who were fearful of Complainant were willing to sign their names to documents saying that they were concerned about the climate at the Junior High, then Dodd was not acting in the best interest of the District by not taking advantage of the contract provision that allowed the District to lay off Complainant and post a 100% position to determine if a better candidate for the 100% French position were available.

Dodd's knowledge of events that occurred after June 1, 1998 reasonably explains why, as late as June 1, 1998, Dodd was willing to maintain Complainant at 80%, but was not willing, on June 9 or 10, 1998, to continue Complainant at 80%. Neither the fact that Complainant had threatened to file a grievance if Sheehan did not apologize to Complainant, nor any other evidence, demonstrates that Dodd's decision to recommend the layoff of

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Complainant to the School Board was motivated, in any part, by Dodd's hostility to Complainant's protected, concerted activity.

Given Dodd's testimony regarding statements he made during the May staff meeting, it is evident that Dodd would accept, without further consideration, Knaack's recommendation, or decision, to raise Complainant to a 100% position. This deference is consistent with Knaack's testimony that he had authority to increase Complainant to 100% FTE because he had the available FTE. Knaack, however, did not have the authority to effectuate Complainant's layoff. Rather, Complainant's layoff could only be effectuated by Dodd recommending the layoff to the School Board and the School Board accepting this recommendation.

Having concluded that only Dodd had the authority to effectively recommend Complainant's layoff, the Examiner considers the effect of Knaack's recommendation upon Dodd. It is evident that, but for Knaack's making the recommendation to Dodd, Dodd would not have given consideration to Complainant's layoff on June 9 or 10, 1998. However, it is not evident that, but for Knaack's hostility to Complainant's protected, concerted activity, that Knaack would not have made his recommendation on June 9 or 10, 1998. Given Knaack's testimony that Complainant's grievance activity was not a major factor in Knaack's recommendation to layoff Complainant; the failure of the record to demonstrate that, at that time, Knaack had demonstrated other hostility to Complainant's grievance activity; and the existence of significant, legitimate reasons for deciding to recommend the layoff of Complainant, the Examiner is persuaded that Knaack's layoff recommendation was triggered by the significant, legitimate reasons and not by Knaack's unlawful hostility. Thus, the fact that Dodd's consideration of Complainant's layoff was precipitated by Knaack's recommendation is not sufficient to taint Dodd's decision with Knaack's unlawful hostility.

Given the evidence that Dodd, and not Knaack, had effective authority to recommend the layoff of Complainant; the failure of Dodd to identify Knaack's recommendation as a factor in his decision to layoff Complainant; the evidence that Dodd was aware of and sensitive to Complainant's previously expressed concern that Knaack would not be fair; the evidence that Dodd gave consideration to a variety of legitimate factors, not all of which were identified by Knaack as factors to be considered, when deciding to recommend the layoff of Complainant to the School Board; the evidence that Dodd overturned Knaack's initial decision to deny Complainant a dedicated French room, a decision of far less importance than Complainant's layoff; the evidence that Dodd previously had not allowed Knaack to reduce another foreign language teacher from 100% to 80% FTE; and the evidence that Dodd did not place Knaack on the interview team for the 100% position even though Knaack expressed disappointment in not being of this team, the Examiner is persuaded that Dodd did not defer to Knaack's recommendation to layoff Complainant. Rather, the Examiner is persuaded that Dodd's decision to recommend the layoff of Complainant was based upon Dodd's independent consideration of a number of legitimate factors.

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The fact that Dodd indicated that he was willing to jeopardize his job by recommending the layoff of Complainant does not mean that Dodd actually feared such a result. Indeed, it is evident that Dodd did not fear such a result. Such statements by Dodd are hyperbole, underlining the fact that he had confidence in his decision and confidence that the School Board would support his decision. Complainant's arguments that such statements provide a reasonable basis to infer that Dodd knew that he did not have good reasons to recommend Complainant's layoff, or to infer any unlawful motive on the part of Dodd, are without merit.

In summary, Knaack did not have effective authority to layoff Complainant or to recommend such layoff to the School Board; Knaack's recommendation to Dodd to layoff Complainant was not triggered by Knaack's hostility to protected, concerted activity; Dodd had effective authority to recommend to the School Board that Complainant be laid off; Dodd did not know that hostility to Complainant's protected, concerted activity was a factor in Knaack's decision to recommend the layoff of Complainant; Dodd did not defer to Knaack's judgment that Complainant be laid off; and Dodd's decision to recommend the layoff of Complainant was based upon Dodd's independent consideration of a number of legitimate factors. The Examiner rejects Complainant's argument that Dodd's decision to recommend Complainant's layoff to the School Board is "tainted" by Knaack's hostility toward Complainant's protected, concerted activity.

Given the that the protected, concerted activity to which Knaack was hostile was not the factor that triggered Knaack's decision to recommend the layoff of Complainant to Dodd and the lack of deference accorded to Knaack's recommendation by Dodd, this case may be distinguished from Northeast Wisconsin technical College, supra; and Green Lake County, Dec. No. 28792-A (4/97). Inasmuch as Dodd did not clearly state an unlawful motive as a reason for his decision to recommend Complaint for layoff, the instant case may be distinguished from Milwaukee County Medical Complex, Dec. No. 27279-A (Gallagher, 12/92).

On June 10, 1998, Dodd met with Complainant and told Complainant that Dodd had decided to recommend that Complainant be laid off to zero percent under Article 32(I). Dodd also told Complainant that, after the School Board voted on the layoff recommendation, Complainant would be allowed to apply for the 100% position that would be posted. The evidence that, on or about June 10, 1998, Dodd relied upon others, including administrators and the District's attorney, to interpret Article 32(I) does not provide a reasonable basis to infer that Dodd's reliance on Article 32(1) is subterfuge.

When Skadahl had been laid off, Solsrud or Johansen notified her of her layoff. The fact that Dodd came to the Junior High to personally notify Complainant of his layoff and that Knaack did not make any statement during this meeting supports the conclusion that Dodd, and not Knaack, was responsible for this decision. Dodd's conduct in requiring Complainant to

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turn in his keys, as well as Knaack's and Sheehan's subsequent reluctance to, or failure to, allow Complainant on the premises or to use District equipment does not provide a reasonable basis to conclude that any of these administrators are hostile to Complainant's protected, concerted activity. Rather, such conduct is reasonably explained by the fact that the school year was over and that, unless the School Board rejected Dodd's recommendation, Complainant did not have legitimate business reasons to access District property, except as a member of the public. Such conduct is also reasonably explained by Complainant's recent and escalating disruptive conduct toward his supervisors, as well as the FYI's that provided the administrators with a reasonable basis to conclude that other staff members were uncomfortable with or fearful of Complainant.

Complainant recalls that Dodd told him to stay off the premises. The Examiner considers it more likely, as Dodd testified, that he told Complainant to stop at the office and request permission to use the District's facilities. Neither statement, however, would provide a reasonable basis to conclude that Dodd is hostile to Complainant's protected, concerted activities.

On June 10, 1998, Dodd told Complainant that he had used Article 32(I) earlier in the year. This statement is not correct. The record, however, does not provide a reasonable basis to conclude that when Dodd made this statement on June 10, 1998, and when Dodd made a similar statement to the School Board at the grievance meeting in September, 1998, that Dodd knew that his statement was incorrect. Thus, by making these statements, Dodd has not demonstrated that he is a liar, or that he was fabricating reasons to cover up unlawful motive.

As Complainant argues, the District does not have a policy or practice that defines what is, or is not, a small applicant pool. However, the absence of such a policy or a procedure does not mean that the District's administrators could not reasonably judge whether or not Complainant was hired from a small applicant pool.

At the time that Dodd made the decision to lay off Complainant under Article 32(I), he had not investigated to determine the size of the applicant pool for Complainant's initial 50% position with the District. However, Knaack was involved in Complainant's hiring and, thus, was aware of the size of Complainant's applicant pool. Complainant's claim that Dodd could not have known that Complainant had been hired from a small applicant pool is rebutted by Dodd's testimony that he had knowledge of the size of Complainant's applicant pool; Knaack's testimony that he was involved in discussions with Dodd regarding the size of Complainant's applicant pool; and Owens' testimony that, as early as May of 1998, Dodd was aware of, and concerned about, the small size of Complainant's applicant pool. Notwithstanding Complainant's arguments to the contrary, it is irrelevant whether or not Dodd, or any other agent of Respondent, had previously considered the size of Complainant's applicant pool, or the size of any other employee's applicant pool, when making personnel decisions.

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In maintaining the position that there was every possibility that Complainant would be a successful candidate for the 100% position, Dodd was not lying. The "possibility" of course depended on the qualifications of the candidates that applied for the position and Complainant's ability to persuade the interview team that he was the best candidate.

The District had a French program and that French program needed a teacher. While one may reasonably infer from Dodd's decision to recommend Complainant's layoff that Dodd had reservations about automatically increasing Complainant to 100% FTE, one may not reasonably conclude from this decision, or any other record evidence, that Dodd would not have hired Complainant for the 100% position if the interview team had made the determination that he was the best available candidate for the 100% French position.

During the grievance meeting on June 15, 1998, Complainant tried to read from the contract and Dodd cut off Complainant by telling Complainant that he was not interested in having Complainant read from the contract. Complainant and Dodd then engaged in an exchange which included the following: "Dr. Dodd, if you expect to have your job in a week or two you had better listen;" Dodd responded "Are you threatening me?;" Complainant responded "You serve at the pleasure of the board and you better consider how they look at this contract;" Dodd responded "Are you threatening me? It sure sounds like it;" Complainant responded "All I'm saying is that if you, Mr. Knaack, and Mr. Sheehan expect to have your jobs in a week or two you had better think about how a jury views the contract as well;" and Dodd responded "Now you are threatening all of us." Complainant responded that he was not threatening Dodd, just saying what could happen. Complainant stated that he could not take Dodd's job away. Dodd responded that he knew that, so if Complainant could not take his job away, the only reason that Dodd would not be there would be if Complainant does physical harm to Dodd. Complainant denied that he was making a physical threat against Dodd. Complainant's voice rose during this exchange. Dodd stood up when he asked if he was being physically threatened and pointed his finger at Complainant. Complainant responded that he was not threatening Dodd, just saying what could happen. Dodd reiterated that Complainant was threatening him.

For at least twenty minutes prior to this interaction, Dodd had listened to the DCETA representatives' arguments with respect to the merits of their grievance and had responded to these arguments reasonably and without any apparent hostility. It was not until Complainant made statements that Dodd perceived to be threats that Dodd became agitated. Neither the evidence of Dodd's reaction to these perceived threats, nor any other evidence of Dodd's conduct on June 15, 1998, provides a reasonable basis to infer that Dodd is hostile to Complainant's exercise of protected, concerted activity.

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Upon having his memory refreshed at hearing, Dodd recalled that, prior to the June 23, 1998 meeting, he met with two committees of the School Board and, at these meetings, Dodd advised the attending committee members that a number of personnel actions would be on the agenda for consideration at the next School Board meeting, including a recommendation that Complainant be laid off. Dodd further recalled that he mentioned to both committees that Article 32(I) was being used for Complainant's layoff; that this Article states that, when the District makes a part-time position a hundred percent position, then the District can lay the part-time person off and that person has a right to reapply for that position; that he received no response from either committee; and that Complainant's layoff was not on the agenda for discussion by either committee. Neither Dodd's testimony, nor any other evidence, demonstrates that, at these meetings, Dodd attempted to justify Complainant's layoff on the basis that other employees had been laid off under Article 32(I). It is not evident that Knaack was present when Dodd met with these committees of the School Board.

The fact that Dodd initially denied discussing Article 32(I) with School Board members and then, after reviewing previous testimony, recalled that he did do so, does not demonstrate that Dodd was "caught with his hand in the cookie jar." Rather, it demonstrates that Dodd's recollection of events at the earlier proceeding is better than his recollection in this hearing. The inconsistencies in Dodd's testimony regarding discussions with School Board members that occurred prior to June 23, 1998 does not provide a reasonable basis to conclude that Dodd is not a credible witness, or that Dodd is seeking to conceal the fact that Complainant was unlawfully laid off.

Leonard's testimony demonstrates that, consistent with her normal practice, Leonard met with Dodd prior to the June 23, 1998 meeting to discuss matters that would be on the agenda. During this meeting, Dodd informed Leonard that there would be a number of contract adjustments, one of which would be to Complainant's contract. Dodd also explained that the administration was recommending the adjustment to Complainant's contract because there was a provision in the contract that permitted the District to eliminate a part-time position and post a full-time position; that when Complainant's part-time position was originally posted, the applicant pool was not very large; and that inasmuch as a full-time position is desirable, the administration was hopeful that the posting would attract a larger applicant pool. It is not evident that Knaack was present when Dodd met with Leonard.

It is not evident that Dodd offered Leonard another reason for his recommendation. At the time of this discussion, Leonard had an understanding that Article 32(I) had been invoked earlier in the year. Although it is not clear that this understanding came from Dodd, Dodd had such an understanding in June of 1998.

On June 23, 1998, the School Board held a regularly scheduled School Board meeting. At this meeting, Dodd recommended numerous personnel actions, including that Complainant

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be reduced from an 80% contract to a 0% contract, effective June 23, 1998. Complainant was present at this meeting and an unusually large number of citizens addressed the School Board in support of Complainant. No member of the public spoke in opposition to Complainant. The School Board, without discussion and in open session, voted to approve a number of personnel actions, including that Complainant's contract be decreased from an 80% contract to a 0% contract, thereby effectuating Complainant's layoff.

Knaack did not attend the June 23, 1998 School Board meeting. It is not evident that Knaack had any discussions with any School Board member regarding Complainant's layoff prior to the School Board's approval of the June 23, 1998 adjustment of Complainant's contract. Neither the Minutes of the June 23, 1998 School Board meeting, nor any other evidence, establishes that, at the time that the School Board voted to approve Complainant's contract adjustment on June 23, 1998, any School Board member either knew that Knaack had recommended to Dodd that Complainant be laid off or knew the reasons why Knaack had made such a recommendation. Knaack's letter of June 16, 1998 does not require a contrary conclusion.

At hearing, Leonard recalled that she has been on the School Board for nine years. Leonard also recalled that, typically, there is not a great deal of discussion regarding administration's recommendations on personnel actions. In Leonard's opinion, the support demonstrated by the public on behalf of Complainant did not provide a sufficient basis to further investigate administration's recommendation to layoff Complainant. The evidence that members of the School Board were not swayed by the show of public support does not mean that the School Board ignored the members of the public that showed support for Complainant or acted in bad faith.

Inasmuch as the School Board's votes were held in open session, Complainant's argument that the School Board members attempted to conceal their vote on Complainant's contract adjustment is not persuasive. The record does not provide a reasonable basis to infer that Dodd, or any member of the School Board, acted surreptitiously in the manner in which the School Board received and acted upon Dodd's recommendation to layoff Complainant.

The fact that Dodd did not enumerate for the School Board all of the factors that Dodd claims that he considered when he recommended the layoff of Complainant does not warrant the conclusion that Dodd is a liar or that Dodd's claimed factors are pretextual. Rather, the more reasonable conclusion is that Dodd presented the information to the School Board members that Dodd deemed to be relevant.

The evidence that the School Board members accepted Dodd's recommendation to layoff Complainant with little, or no discussion, does not provide a reasonable basis to infer that any School Board member, is hostile to protected, concerted activity, or is seeking to

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cover-up an unlawful motive. Rather, the more reasonable conclusion is that the information provided to the School Board by Dodd was sufficient to persuade the School Board that Complainant should be laid off.

Notwithstanding Complainant's argument to the contrary, it is not evident that Dodd had a need to fabricate reasons for his recommendation to the School Board that Complainant be laid off. Nor is it evident that Dodd fabricated such reasons.

In summary, the evidence of Dodd's conduct, up to and including the School Board meeting of June 23, 1998 does not provide a reasonable basis to conclude that Dodd is hostile to Complainant's protected, concerted activity, or that Dodd's decision to recommend the layoff of Complainant was motivated, in any part, by hostility to Complainant's protected, concerted activity. The evidence of the conduct of the School Board members, up to and including the School Board meeting of June 23, 1998, does not provide a reasonable basis to infer that any School Board member is hostile to Complainant's protected, concerted activity or that their decision to accept Dodd's recommendation to layoff Complainant was motivated, in any part, by hostility to Complainant's protected, concerted activity. Nor does such evidence provide a reasonable basis to conclude that Dodd's decision to recommend the layoff of Complainant, or the School Board's acceptance of the same, was tainted by the unlawful hostility of another.

On June 11, 1998, the District posted a 100% French position. The position's certification requirement was "Certification by the Wisconsin Department of Public Instruction in French (#355)." The "Qualifications" were as follows:

Successful teaching or practicum experience at secondary level.

Ability to work as a member of a team in the House Concept.

Ability to establish and maintain effective professional and public relationships.

Ability to relate to students.

The posting also included the following: "Applications must be received in the Personnel Department by 4:00 p.m. on Thursday, July 2, 1998."

Dodd's testimony establishes that he chose to not use Knaack or Sheehan on the interview team because they had had recent confrontations with Complainant and he wanted interview team members that were not a party to these confrontations. Dodd's decision to not assign either Knaack or Sheehan to the interview team for the 100% French teacher position was a reasonable management decision and does not provide a reasonable basis for anyone, including the members of the interview team, to infer that Dodd, Knaack, or Sheehan is hostile to Complainant's protected, concerted activity.

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Dodd told Hazaert that Johansen and Solsrud would be on the interview team and Hazaert then told Johansen and Solsrud of their appointment to the interview team. When Dodd chose Hazaert to head the interview team, Dodd knew that Hazaert had some knowledge of Complainant's disputes with Knaack and Sheehan.

According to Dodd, he chose Hazaert because of his authority within the District; his competence, including his competence in administering the Perceiver; and the fact that Hazaert had not been immediately involved in disputes with Complainant. Dodd's stated rationale for selecting Hazaert is reasonable. Given their respective positions within the District, the selection of Solsrud and Johansen is also reasonable.

Dodd handpicked the interview team. The composition of the interview team is not the normal composition for such an interview team. Neither fact, however, provides a reasonable basis to infer that Dodd, or any other representative of the District, is hostile to protected, concerted activity. Nor does either fact provide a reasonable basis to infer that the decisions of the interview team are motivated, in any part, by hostility to protected, concerted activity, or tainted by the unlawful hostility of another.

After instructing Hazaert on the composition of the interview team, Dodd advised Hazaert that Complainant would be interviewed for the 100% position and confirmed that Hazaert was to follow normal procedures and be objective. Contrary to customary District practices, Bouffleur, the successful candidate, was permitted, apparently by Dodd, to submit her application after the deadline. By this conduct, Dodd demonstrated that he was not averse to breaking his own admonition to Hazaert, i.e., that the interview team should follow normal procedures. Given Dodd's rationale for deciding to layoff Complainant and the lack of evidence that Dodd had previously exhibited any hostility to Complainant's protected, concerted activity, it is more reasonable to infer from this conduct that Dodd desired as large and as qualified an applicant pool as possible, than to infer that Dodd was seeking to subvert the application process because Dodd is hostile to Complainant's protected, concerted activity.

It is not evident that Bouffleur was interviewed for any reason other than Dodd allowed her application to be accepted. Regardless of whether or not Hazaert, Johansen, and Solsrud knew that her application had been accepted late, contrary to normal District procedures, Hazaert's, Johansen's, and Solsrud's acquiescence in interviewing Bouffleur does not provide a reasonable basis to infer that any of these individuals is hostile to Complainant's protected, concerted activity, or that any decision of the interview team was tainted by the unlawful hostility of another.

Applications of external candidates are reviewed for the purpose of selecting applicants to be interviewed. Dodd ordained Complainant's interview. Inasmuch as there was no need for the interview team to review Complainant's application in the same manner as those of

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other applicants, the evidence that Complainant's application was not available to be reviewed by the interview team in the same manner as the other applications does not provide a reasonable basis to infer disparate treatment, unlawful or otherwise.

It is not evident that Hazaert concealed, or otherwise prevented Solsrud and Johansen from reading Complainant's application. It is evident that Complainant's application was available to the interview team on the day of the interview. Notwithstanding Complainant's arguments to the contrary, the interview team was not deprived of the opportunity to read the materials contained therein.

It may be, as Complainant argues, that the difference in the availability of Complainant's application was prejudicial to Complainant. It is not reasonable to infer, however, that this difference in availability was due to unlawful hostility, rather than to legitimate reasons, such as the fact that Complainant was an automatic interview and the outside applicants had to be screened to determine who would be interviewed.

Complainant's application letter for the 30% position was erroneously attached to his application for the 100% position. The record fails to establish who attached this letter, or why this letter was attached. Given the fact that the letter expressly states an interest in a 100% FTE, it is likely that whoever attached the letter thought it was appropriate to do so.

To be sure, the letter is dated June 1, 1998. If the members of the interview team had focused upon this date, then they should have known that this letter pre-dated the posting for the 100% position. It is not evident, however, that the members of the interview team made this connection. Nor, given the evidence that they may have received Complainant's application materials on the day of the interview, is it implausible that they would have failed to either focus upon the date or realize that the letter was not in response to the posting that was before them.

The evidence of the attachment of the June 1, 1998 letter to Complainant's application for the 100% position does not provide a reasonable basis to infer that any District administrator is hostile to Complainant's protected, concerted activity. Consideration of this letter by any member of the interview team does not provide a reasonable basis to infer that any decision of the interview team was motivated by hostility to protected, concerted activity, or tainted, in any way, by the unlawful hostility of another.

Complainant referenced certain materials, such as his observation reports, in his application, but did not attach copies of these materials to his application. The interview team did not consider referenced materials when they made the selection decision. It is not evident that this failure to consider was due to any factor other than that these materials were not attached to Complainant's application.

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Contrary to the argument of Complainant, the record does not demonstrate that, by failing to give consideration to materials referenced in the application, the interview team did not follow procedures normally used when interviewing internal candidates. Rather, the record demonstrates that, at times, such materials are reviewed and, at other times, they are not and that such review is discretionary. Moreover, given the fact that Complainant had been laid off from his employment and was applying for a position pursuant to Article 32(I), Complainant was not, strictly speaking, an internal candidate. Such a conclusion is consistent with Dodd's June 10, 1998 statement to Complainant that Complainant would be considered along with the other candidates for the 100% FTE posting.

In summary, the record provides a reasonable basis to infer that the manner in which Complainant's application was processed may have disadvantaged Complainant. However, the evidence of the manner in which Complainant's application was processed does not provide a reasonable basis to infer that such processing was due, in any part, to hostility to Complainant's protected, concerted activity.

Hazaert testified, in general terms, as to the procedure that was used in selecting candidates for the 100% position. Hazaert, however, was not asked to specifically confirm or deny that Bouffleur's application was processed in this manner. Given the lateness of Bouffleur's application, Bouffleur's application probably was not processed in accordance with the procedure recalled by Hazaert. Hazaert's testimony regarding the procedure used to select applicants for interviews does not provide a reasonable basis to conclude that Hazaert is lying under oath, or attempting to cover up an unlawful motive.

Hazaert, Johansen and Solsrud had prior contact with Complainant and had knowledge of some of Complainant's prior conduct, including conflicts with, and criticisms by, other administrators. Some, but not all, of the interview team members had knowledge of Complainant's grievances. The interview team's prior contact with and/or knowledge of Complainant's conduct, including Complainant's grievances, does not provide a reasonable basis to infer that any member of the interview team was hostile to Complainant's protected, concerted grievance activity. Nor does such evidence provide a reasonable basis to infer that any decision of the interview team was "tainted" by the unlawful hostility of another.

Complainant argues that Knaack testified that he believed that Solsrud, Hazaert and Johansen knew that he had recommended that Complainant be laid off. A careful review of Knaack's testimony demonstrates that Knaack did not have any direct knowledge that Solsrud, Hazaert, or Johansen knew that Knaack had recommended that Complainant be laid off. Neither Knaack's testimony, nor any other evidence, demonstrates that any member of the interview team knew that Knaack had recommended that Complainant be laid off.

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Solsrud does not recall Knaack consulting her about the layoff, but does recall that Knaack discussed this layoff with Solsrud. Specifically, Solsrud recalls that Knaack stated that he was following the contractual clause that permitted the District to layoff a part-time teacher in order to hire full-time teacher. According to Solsrud, Knaack did not explain why the District was applying that clause to Complainant. Complainant's layoff made sense to Solsrud because it was consistent with her understanding of District practices and seemed to be similar to what had occurred with Skadahl earlier that year. Solsrud credibly testified that her knowledge of Complainant's layoff did not lead her to conclude that Complainant had been laid off because Knaack and/or Dodd did not want Complainant in the District.

Johansen credibly testified that he did not draw any negative conclusion from the fact that Complainant had been laid off. According to Johansen, he considered Complainant's situation to be similar to that of Skadahl, who he understood had been reduced in position; had reapplied for a position; and then had been interviewed for a position.

Given his/her position within the District, one may reasonably assume that each member of the interview team understood that, if Knaack or Dodd had wished to increase Complainant to a 100% FTE, then either could have done so. The knowledge that Dodd and Knaack did not automatically raise Complainant to a 100% position may reasonably lead to the conclusion that Dodd and Knaack had reservations about automatically raising Complainant to a 100% position. Such knowledge, however, does not also reasonably lead to the conclusion that Dodd and Knaack would object to hiring Complainant at 100% FTE if Complainant were the best available candidate for the position.

Complainant mischaracterizes Johansen's testimony when he argues that Johansen inferred from Hazaert's statements that Knaack would be biased. In fact, Johansen neither inferred, nor believed, that Knaack would be biased. Rather, as Johansen's testimony demonstrates, it was his opinion that Knaack was not appointed to the interview team as a precaution, i.e., to avoid any claim by others that Knaack was biased against Complainant. Johansen credibly claims that, at the time that he was involved in hiring for the 100% French position, he did not know whether Sheehan, Dodd, or Knaack wanted Complainant to be hired, or to not be hired.

Solsrud assumed that Johansen was on the interview team because Knaack and Complainant had had conflict and that Johansen would be more impersonal or impartial. Solsrud credibly claims that she did not have any belief that Knaack, Sheehan or any other administrator did not want Complainant to be a 100% FTE teacher. Thus, it is evident that Solsrud did not conclude from Johansen's appointment to the interview team that Knaack was biased against Complainant obtaining the 100% French position.

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Hazaert did not lie under oath with respect to his testimony regarding his knowledge of conflicts that Complainant had with Knaack. (Tr. 283; 429-431) Nor did he give false testimony regarding his knowledge of Complainant's conflicts or criticisms with Knaack. (Tr. 432; 433; 439)

With the exception of persuading Knaack to give Complainant a dedicated French room, Hazaert was not an active participant in any of Complainant's disputes with staff and supervisors. Given this fact, as well as the passage of time between this hearing and Hazaert's deposition and arbitration testimony, it is not incredible that Hazaert's memory of these events has dimmed. The record does not support complainant's argument that Hazaert is pretending to no longer remember the details of Complainant's disputes.

Complainant's October 29, 1997 grievance did not directly involve Hazaert and was filed approximately three years prior to the start of this hearing. It would not be reasonable to conclude that Hazaert is lying under oath, rather than failing to recollect specific events that occurred several years in the past, when he gave conflicting testimony as to when he first learned of this grievance.

It is not evident that Hazaert gave false testimony regarding the use of Article 32(I), but rather, it is evident that Hazaert gave careless testimony on this issue. For example, Hazaert offered testimony on the use of Article 32(I) when, by his own admission, he did not have the "specific names." (Tr. 268) In subsequent testimony, Hazaert stated that it was his belief that a few teachers had been laid off under Article 32(I), but that he could not think of anybody. (Tr. 2143) Hazaert did not deny that he had, at one time, stated that a half dozen people had been laid off and confirmed that, when he made this statement, he did not have any specific examples. (Tr. 2144) Neither this testimony, nor any other record evidence, provides a reasonable basis to infer that Hazaert falsified this testimony, or any other testimony, to support decisions, or testimony, of Dodd.

It is not evident, as Complainant argues, that Hazaert took every occasion to exercise his discretion in a manner that was prejudicial to Complainant. Contrary to the argument of Complainant, Hazaert's testimony regarding Bouffleur's "Focus" (Tr. 420-28; 2247; 2250) does not establish that Hazaert is a liar, or that Hazaert was indicating that Bouffleur was a predict on "Focus," when, in fact, she was not. Hazaert's explanation that he was using the term "focus" in two different contexts is plausible.

The most reasonable conclusion to be drawn from the credible evidence is that the Perceiver score was not a major factor in the interview team's selection decision. The fact that the Perceiver score was not a major factor in the selection decision does not provide evidence of unlawful, disparate treatment.

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Complainant's argument that imposing subjective judgments on an objective measurement, i.e., the Perceiver, indicates unlawful motive is not persuasive. Hazaert provided a plausible explanation of why he considered Perceiver predicts to be strengthened or weakened by other applicant information.

Solsrud and Johansen, who are both trained to administer the Perceiver, offered no criticisms with respect to Hazaert's scoring. Notwithstanding Complainant's arguments to the contrary, the record provides no reasonable basis to conclude that Hazaert's scoring of the Perceiver was not done in good faith.

As Solsrud's testimony demonstrates, and Johansen acknowledges, each has a limited recall of the interview process. Thus, the fact that Solsrud, Hazaert and Johansen do not have the same recollections of what was discussed and/or emphasized among the members of the interview team when they reviewed the candidates for the 100% French position does not provide a reasonable basis to conclude that any member of the interview team is a liar, or concealing unlawful motive.

It is evident that Hazaert and Johansen considered Bouffleur to be an intern and, for different reasons, each was influenced by this fact when deciding which candidate to select for the 100% French position. The record fails to demonstrate why each considered Bouffleur to be an intern. However, contrary to the argument of Complainant, the fact that Bouffleur's application materials and interview transcript do not expressly reference the fact that Bouffleur was an intern does not warrant the conclusion that Johansen and Hazaert fabricated Bouffleur's intern status to conceal unlawful motive, or for any other reason. In reaching this conclusion, the Examiner has noted that not all statements made at the interview were recorded and transcribed and that members of the interview team checked the references of Bouffleur.

Hazaert gave confusing and conflicting testimony on the issue of whether or not he was impressed by Bouffleur's examples of District initiatives. Thus, it is difficult for the Examiner to determine what, if any, weight Hazaert gave to this specific factor at the time that he assessed the candidates.

Complainant argues that this confusing and conflicting testimony is due to the fact that Hazaert is a liar and is fabricating testimony to conceal unlawful motive. Hazaert's testimony, however, is more likely due to the fact that Hazaert was not particularly focused upon this aspect of the interview because Johansen was responsible for questioning applicants on their knowledge of and use of educational initiatives and models of instructions. The most that can be determined from Hazaert's testimony is that Hazaert does not recall the specific initiatives and educational models that were addressed by Bouffleur, but has a general recollection that she was familiar with different initiatives and provided examples of how she had used some of these initiatives in the classroom. Hazaert's recollection that Bouffleur provided examples of how she had used initiatives in the classroom is consistent with Johansen's testimony.

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In ranking the top two applicants, Hazaert ranked Bouffleur as his number one candidate and Delsarte as his number two candidate. According to Hazaert, his selection of Bouffleur was based on a variety of factors. Hazaert considered Bouffleur's interview to have demonstrated that Bouffleur was eager, spontaneous, extremely positive and excited about the 100% French position. Hazaert considered the fact that Bouffleur had completed her Master's Degree to be an indication that she set high goals for herself and was committed to her career. Hazaert was favorably impressed by Bouffleur's work in a computer lab; her familiarity with a variety of software programs; and the fact that Bouffleur had assisted other teachers in setting up computer programs. According to Hazaert, the primary reason that Hazaert chose Bouffleur was her positive attitude, enthusiasm for the position, high level of commitment to her career, her interest in co-curricular activities, her demonstration that those that had worked with her were very positive about her and her demonstration that she had some background with and could use District initiatives in the classroom. Bouffleur's application materials and interview transcript reasonably support Hazaert's conclusions regarding Bouffleur's qualifications for the 100% French position.

According to Hazaert, his primary reason for not selecting Complainant was that Complainant's interview indicated that Complainant had difficulty getting along with other staff members, as particularly demonstrated by Complainant's response to Johansen's interview questions. While recognizing that it is natural to have conflicts within an organization, statements made by Complainant lead Hazaert to conclude that Complainant did not accept responsibility for any of the conflicts, but rather blamed other staff members and that Complainant wanted a third party, i.e. administrators, to resolve his conflicts. According to Hazaert, Complainant's statements regarding his conflict with other staff did not persuade Hazaert that Complainant could move beyond the conflicts that he had had with other staff members, or work with these staff members in a collegial environment. Hazaert concluded, therefore, that Complainant could not be successful in the 100% French position. Hazaert also considered Complainant's responses to the interview questions to reflect other problems, such as lack of objectivity and innovation. Complainant's application materials and interview transcript reasonably support Hazaert's conclusions regarding Complainant's qualifications for the 100% French position.

The clear and satisfactory preponderance of the evidence does not demonstrate that Hazaert's decision to select Bouffleur, rather than Complainant, for the 100% position is tainted, in any way, by the unlawful hostility of another. The clear and satisfactory preponderance of the evidence does not demonstrate that Hazaert is hostile to Complainant's protected, concerted activity, or that Hazaert's decision to select Bouffleur, rather than Complainant, for the 100% French position was motivated, in any part, by hostility to Complainant's protected, concerted activity.

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Solsrud considers the process for hiring the 100% FTE French teacher to be the standard process employed by the District and consistent with her prior experiences with the District's hiring process. In ranking the top two candidates for the 100% position, Solsrud gave consideration to the application materials, the interview and the portfolio that each candidate was requested to bring at the time of the interview. At some point in the interview process, Solsrud saw Complainant's application and was struck by the fact that Complainant had a handwritten application letter. In Solsrud's judgment, Bouffleur and Delsarte stood out from all the other applicants and were her top two choices. Solsrud's final selection of Bouffleur as the top candidate was largely based upon her perception that Bouffleur had submitted a strong portfolio, had strong references, did well on the Perceiver and had a strong interview. Solsrud considered Bouffleur to have done a good job of explaining her teaching philosophy and how she taught. Solsrud, who considered Bouffleur to be a stellar candidate, was particularly impressed by the fact that Bouffleur had a Master's Degree in French and was active in pursuing opportunities to hear and speak French. Bouffleur's application materials and interview transcript reasonably support Solsrud's conclusions regarding Bouffleur's qualifications for the 100% French position.

The clear and satisfactory preponderance of the evidence does not demonstrate that Solsrud's decision to select Bouffleur, rather than Complainant, for the 100% position is tainted, in any way, by the unlawful hostility of another. The clear and satisfactory preponderance of the evidence does not demonstrate that Solsrud is hostile to Complainant's protected, concerted activity, or that Solsrud's decision to select Bouffleur, rather than Complainant, for the 100% French position was motivated, in any part, by hostility to Complainant's protected, concerted activity.

Johansen's questioning of Bouffleur indicates that he formed a good opinion of her skills in "Effective Instruction" in background materials that she supplied. Bouffleur did not, as Complainant argues, demonstrate that she did not hold "Effective Instruction" in high esteem. Rather, she indicated that she did not exactly follow what was taught in class, but rather, modified it to meet her needs. (C-10, p. 17)

The fact that Johansen still recalls the cover letter as a negative persuades him that the cover letter may have been a factor in his decision to not rank Complainant in the top two. According to Johansen, his belief that Bouffleur was an intern was a factor in his decision because it lead him to conclude that she had student taught for 18 weeks, rather than 9 weeks, which persuaded him to give more credence to the report from her cooperating teacher. Johansen states that he was not aware that Complainant had been an intern. Johansen recalls that, in determining his top two candidates, he did not rely on the total score of the Perceiver, but rather listened to the questions as they were being asked and used his training in administering the Perceiver to assess the candidates' strengths and weaknesses within the various categories of the Perceiver; he then used his personal interview questions to follow

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through on his assessment of the candidate; and that, prior to asking Hazaert for the Perceiver scores, Johansen had an impression of Complainant's strength and weaknesses. According to Johansen, his primary concern about Complainant was Complainant's failure to demonstrate to Johansen that Complainant was using the methodologies taught by the District in his classrooms and Johansen's conclusion that Complainant had interpersonal skill problems. Johansen states that he had a specific concern that Complainant was weak in "Dimensions of Learning" and was persuaded that Bouffleur demonstrated that she was able to utilize the training that she had received in the classroom. Johansen recalls that Bouffleur demonstrated her use of cooperative learning in the classroom; Complainant demonstrated that he received training from the District and then ignored the training; and Complainant's interview caused Johansen to question whether or not Complainant developed and followed through on lesson plans.

Johansen's conclusion that Complainant had interpersonal skill problems was based upon Complainant's recitation of the problems that he had with administration and other teachers, including Berns. Johansen has supervised Berns for a number of years and gets along quite well with Berns. Johansen states that he had never heard an applicant recite as many conflicts with his peers. In Johansen's opinion, a successful teacher must be able to get along with colleagues and that this ability is especially necessary in the District's middle school, which utilized team teaching. Johansen states that he was especially troubled by the fact that the conflicts were with other members of Complainant's department. In Johansen's view, such conflicts would negatively impact upon the Department's ability to move forward on curriculum and implement new programs. Johansen states that Bouffleur's interview, unlike that of Complainant, was a positive interview and Bouffleur made him more comfortable.

According to Johansen, he selected his top two candidates, i.e., Bouffleur and Delsarte, based upon the knowledge that he gained in the interview process; he was not influenced by the fact that Complainant had filed a grievance; and he chose Bouffleur as his top candidate because he thought that she would do the best job at the Junior High. Bouffleur's and Complainant's application materials and interview transcript reasonably support Johansen's conclusions regarding Bouffleur's and Complainant's respective qualifications for the 100% French position.

The clear and satisfactory preponderance of the evidence does not demonstrate that Johansen's decision to select Bouffleur, rather than Complainant, for the 100% position is tainted, in any way, by the unlawful hostility of another. The clear and satisfactory preponderance of the evidence does not demonstrate that Johansen is hostile to Complainant's protected, concerted activity, or that Johansen's decision to select Bouffleur, rather than Complainant, for the 100% French position was motivated, in any part, by hostility to Complainant's protected, concerted activity.

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In summary, the interview team selected Bouffleur as the top candidate for the 100% French position and, thereafter, Bouffleur was hired into the 100% French position. It is not evident that Respondent hired Bouffleur for any reason other than that she had been selected by the interview team as the most qualified candidate. It is not evident that Complainant's application for the 100% French position was rejected for any reason other than the members of the interview team did not consider Complainant to be the most qualified candidate.

Conclusion

Complainant has demonstrated, by a clear and satisfactory preponderance of the evidence, that Principal Knaack gave consideration to the number of grievances filed by Complainant when Knaack was deciding whether or not to recommend the layoff of Complainant to District Administrator Dodd. Inasmuch as Principal Knaack's recommendation to layoff Complainant was motivated, in part, by hostility to Complainant's protected, concerted activity, the Respondent, by its agent Principal Knaack, has violated Section 111.70(3)(a)3, and derivatively violated Section 111.70(3)(a)1, Stats.

Complainant has not demonstrated, by a clear and satisfactory preponderance of the evidence, that either Dodd's decision to recommend the layoff of Complainant to the School Board, or the School Board's acceptance of the same, was motivated, in any part, by hostility to Complainant's protected, concerted activity, or tainted by the unlawful hostility of another. Complainant has not established that Respondent violated Sec. 111.70(3)(a)1 or 3, Stats., when it laid off Complainant.

The clear and satisfactory preponderance of the evidence does not demonstrate that the interview team's decision to select Bouffleur, rather than Complainant, for the 100% French position was motivated, in any part, by hostility to Complainant's protected, concerted activity, or tainted by the unlawful hostility of another. The clear and satisfactory preponderance of the evidence does not demonstrate that Respondent's decisions to hire Bouffleur for the 100% French position and to reject Complainant's application for the 100% French position were motivated, in any part, by hostility to Complainant's protected, concerted activity, or tainted by the unlawful hostility of another. Complainant has not established that the Respondent violated Sec. 111.70(3)(a)1 or 3, Stats., when it did not accept Complainant's application for a 100% French position and did not hire Complainant for a 100% French position.

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The appropriate remedy for the violations of Sec. 111.70(3)(a)1 and 3, Stats., established herein is to order the Respondent, it's officers and agents, to cease and desist from considering the number of grievances that an employee has filed when deciding whether or not to recommend the layoff of an employee and to post an appropriate notice. It is not appropriate to reinstate Complainant to any position within the District. Nor is it appropriate to order any other remedy.

Dated at Madison, Wisconsin, this 15th day of August, 2003.

WISCONSIN EMPLOYMENT RELATIONS COMMISSION

Coleen A. Burns, Examiner

CAB/gjc

29946-L