STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
UNIVERSITY OF FLORIDA, )
)
Petitioner, )
)
vs. ) CASE NO. 80-273
)
THOMAS S. BIGGS, JR., )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, R. L. Caleen, Jr., held a formal hearing in this case on November 12, 13, 14, and 18, 1980, and February 17, 1981, in Gainesville, Florida.
APPEARANCES
For Petitioner: Frank J. Petramalo, Jr., Esquire
1000 Connecticut Avenue, Northwest Suite 1300
Washington, DC 20036
For Respondent: Steven D. Merryday, Esquire
Post Office Box 1288 Tampa, Florida 33601
ISSUES PRESENTED
Whether Respondent's conduct in recruiting, selecting, and hiring Robert Denson as Associate University Attorney was improper and justifies imposition of University discipline pursuant to Rule 6C-5.27, Florida Administrative Code.
BACKGROUND
On February 13, 1980, the Affirmative Action Council of the Petitioner, University of Florida ("University"), recommended to the University president that a formal inquiry be conducted concerning alleged irregularities involving the filling of an Associate University Attorney position. Specifically, the Council alleged that Respondent, Thomas H. Biggs, Jr. ("Biggs"), committed numerous violations of University policies and guidelines by his recruitment and selection of Robert Denson as an Associate University Attorney.
Biggs requested a hearing pursuant to Chapter 120, Florida Statutes, and on February 13, 1980, the University president forwarded this case to the Division of Administrative Hearings.
During the prehearing stage of this proceeding, various motions were considered, the University filed its formal complaint alleging specific acts of
misconduct by Biggs, and Biggs filed responsive pleadings denying the charges. The final hearing was then set for August 14 and 15, 1980. On August 14, 1980, the parties jointly represented that the controversy between them had been tentatively settled and requested a continuance pending submittal of final settlement documents; their request was granted. However, the tentative settlement never materialized and final hearing was subsequently reset for November 12 through 14, 1980. At the parties' request, presentation of closing arguments was postponed until February 17, 1981. Filing of the transcript of hearing was completed on March 17, 1981.
The parties agreed that the University has the burden of proving its charges against Biggs by a preponderance of evidence. Those charges constitute the affirmative of the following issues framed for final hearing:
Whether Biggs engaged in improper conduct, violative of University personnel practices and regulations requiring merit hiring, by preselecting or deciding to hire Robert Denson in advance of recruitment and evaluation of other applicants for the job of Associate University Attorney.
Alternatively, even if Biggs did not engage in preselection, whether his conduct in recruiting and screening appli- cants for the job in question was improper because he served on the committee which screened and evaluated the applicants, which Biggs knew or should have known
was contrary to the University's guide- lines and procedures.
Alternatively, even if Biggs
did not engage in preselection or wrong- fully serve on the screening committee, whether his conduct in hiring Robert Denson was improper because Denson did not meet the state required minimum qual- ifications for the job (membership in the Florida Bar) and, others who applied met and exceeded the minimum qualifications.
Further, whether Biggs engaged
in improper conduct by violating the Uni- versity's policy of Affirmative Action, which seeks to maximize employment oppor- tunities for females and minorities, by failing to hire any one of several female or minority applicants who were equal to or better qualified than Denson.
Finally, whether Biggs engaged
in improper conduct by discriminating, on the basis of race and sex, against female and minority applicants by failing to con- sider their applications on the same bases as that afforded the application of Robert Denson and by hiring Robert Denson who was less qualified than the female and minority applicants. (University Prehearing State- ment dated November 11, 1980.)
The University seeks to discipline Biggs for his alleged misconduct by demoting him from his position as head of the Office of University Attorney. Based on the evidence presented at hearing, the following facts are determined:
EVIDENTIARY FINDINGS OF FACT I.
On October 1, 1969, the University of Florida ("University") hired Thomas S. Biggs, Jr., ("Biggs") as its University Attorney. As its first, and only, University Attorney, Biggs advised and represented the University in a wide variety of legal matters. In the ensuing years, the University's need for legal services increased and three Associate University Attorney positions were created in the Office of University Attorney. As head of the office, Biggs was, and is, responsible for its administration and management, including the recruitment, selection, and supervision of its attorneys.
II.
In early 1979, the University became involved in a dispute concerning the calculation of royalty payments resulting from the sale of a product known as "Gatorade". By early July, 1979, ongoing settlement negotiations began to deteriorate and complex litigation seemed imminent. Biggs concluded that he could adequately represent the University in that litigation, which he estimated would take 75-80 percent of his time for approximately one year. However, since his office was already operating at full capacity, he decided that additional resources would be necessary. He discussed the problem and various alternatives with University Executive Vice President, Dr. John Nattress. Together, they agreed that Biggs should represent the University and that the resulting manpower shortage should be alleviated by hiring a temporary employee in Biggs' office. Biggs suggested Robert Denson, ("Denson"), Dr. Nattress agreed.
At that time, Denson was Assistant Dean for Student Services, and a law student at the University. As Assistant Dean, he had become acquainted with the attorneys in Biggs' office and frequently sought their advice. He had previously informed Biggs that he (Denson) planned to graduate from law school in August, and remain as Assistant Dean for one year before entering private practice in Gainesville. Biggs suggested Denson for the temporary employment position because he was impressed by Denson's performance as Assistant Dean and believed that temporary employment would be compatible with Denson's announced career plans.
When contacted by Biggs, Denson indicated interest in the temporary employment opportunity. Biggs told him, however, that the job was for only a one-year period and that he should not accept it with the expectation of it becoming a permanent position. 1/ (Tr. 586.) 2/ Before departing for a scheduled two-week seminar at Harvard University, Biggs instructed Associate Attorney Ashmun Brown to make the necessary arrangements to employ Denson from September, 1979, to September, 1980. 3/ However, in August, 1979, the settlement negotiations resumed and were ultimately successful. Denson's temporary employment was no longer necessary and he was not hired.
III.
In September, 1979, Biggs was aware that one of his Associate Attorneys--Carole Taylor ("Taylor")--was dissatisfied with her job and actively
seeking employment elsewhere. Taylor, a black female attorney, had also discussed her job dissatisfaction with Jackie Hart ("Hart"), the University's Affirmative Action Coordinator. Hart had a continuing interest in recruiting and retaining minority employees at the University.
In early September, 1979, Biggs and Hart attended an Equal Employment Opportunity Conference at Belle Glade, Florida. Hart testified that, while traveling in a vehicle with Biggs, she asked if it would be difficult to replace Taylor. He replied it would not be difficult because there was a young man who was finishing law school who he would like to hire--that he had tried to hire him during the summer but it did not work out. (Tr. 458.) According to Hart, Biggs identified that young man as Robert Denson. The University contends that the alleged statement establishes that Biggs preselected Robert Denson or decided in advance that Denson would be selected to fill Taylor's position when it became vacant. Although uncertain of the date, time, and place, Hart maintains that Biggs made such a statement; Biggs steadfastly denies it. No other witnesses were present when the statement is alleged to have been made. Neither Hart nor Biggs is disinterested in the outcome of this proceeding: Biggs' career and reputation are in jeopardy; Hart aggressively pursued an investigation of the Denson hiring. It would be difficult for even the most disinterested observer to accurately recall a brief conversation which occurred over a year earlier. In short, the evidence is insufficient to establish, with the requisite certainty, that Biggs made the alleged statement.
If Biggs mentioned Denson in his conversation with Hart, it is found that he did not indicate a predetermined decision to hire Denson without giving fair consideration to others who would apply. It is unlikely that Biggs--an experienced university attorney--would openly announce to the University's Affirmative Action Coordinator during an Equal Employment Opportunity Conference that he had preselected the person he would hire to fill a position which was not yet vacant. If his statement had, in fact, conveyed such a meaning, Hart would have reacted to it-- which she admits she did not. Likewise, she would have told the chief investigator of the Denson hiring about the Biggs statement, which she did not. Moreover, a predetermined decision on Taylor's replacement would have been inconsistent with the facts known to Biggs at the time. He believed Denson's career plans were not compatible with a permanent position in his office, that Denson intended to enter private practice a year after graduating from law school. Neither would a predetermined decision have been consistent with Biggs' prior and subsequent efforts to recruit female and minority applicants for the position. It is determined that, to the extent Biggs may have mentioned Denson to Hart, his comments only conveyed his favorable impression of Denson's capabilities.
IV.
On October 9, 1979, Taylor informed Biggs that she would accept an offer of employment made by the Public Defender's Office of Broward County. He solicited her help in spreading news of the opening to other black attorneys and then called Robert Willits, the University's Assistant Personnel Director, to inform him of the vacancy and that he (Biggs) would be forwarding a suggested vacancy announcement. Biggs also told Willits that he wanted to advertise the vacancy in publications directed to out-of-state black lawyers who may not be members of the Florida Bar; that he consequently wanted to "waive" the State University System ("SUS") minimum qualification--that an applicant be a member of the Florida Bar--before the search began. 4/ The waiver was requested in order to avoid repeating the circumstances surrounding Taylor's hiring. She had been hired even though she did not meet the advertised and minimum SUS
qualification of Florida Bar membership. Several days later, Biggs furnished Willits with a list of publications where the vacancy announcement should be placed: those included the Florida Bar News, The Chronicle of Higher Education, and the Bulletin of the National Bar Association--an association of predominantly black membership.
As he promised, Biggs promptly drafted a suggested vacancy announcement and forwarded it to Willits, who received it the next day. As a minimum qualification, the proposed announcement required that applicants be members "or currently eligible" (P-18) to become members of the Florida Bar. 5/ Willits noted that the "currently eligible" language varied from the SUS job specifications for Associate University Attorneys. He circled the "or currently eligible" language, placed a question mark in the margin, then discussed it with his immediate supervisor, Associate Personnel Director Frances Crook.
In their discussion about the "currently eligible" language, Willits and Crook agreed that the applicant search should be extensive, perhaps nationwide, in scope; that for the purpose of enlarging the search and making the position available to more minority and female applicants, the proposed "diversion" from SUS position specifications would be allowed. (Tr. 94, 413.) In making this decision, they were aware that the University had fallen behind on its Affirmative Action Plan hiring goals for administrative and professional positions. Willits then telephoned Biggs and described the conditions under which use of the proposed announcement would be approved:
"We would go with it and those circumstances were that it was intended to expand the potential of our response and that there might very well be applicants responding who were very good applicants but did not happen to
be members of the Florida Bar. They might have been members of another Bar. We would permit that wording with the careful under- standing that any applicant that would be selected would have to meet the published requirement of position of Associate Uni- versity Attorney and that is, they would be licensed in the State of Florida." (Tr. 95.)
Willits' conversation was reasonably susceptible to different interpretations, and fostered a misunderstanding as to whether a "waiver" of Bar membership had been, or would be approved. It was Willits' intent that the use of the "eligible for membership" language would allow a greater number of applicants to be considered for the position but would not change the threshold SUS requirement for initial hiring, i.e., while a person eligible for Florida Bar membership could apply and be considered for the position, he or she could not be hired until the SUS Florida Bar membership requirement was met. Biggs, on the other hand, interpreted Willits' statements to mean that a "waiver" of Florida Bar membership would be approved by Personnel and that a vacancy announcement to such effect would be issued; he believed that an applicant "eligible for membership" could be hired as long as that individual subsequently became a member of the Florida Bar. 6/ During the following weeks, both men acted in conformance with their different interpretations of that conversation.
V.
Willits then placed the agreed-upon position announcement in the publications suggested by Biggs and circulated it to various campuses of the university system. Prospective applicants were directed to forward resumes to Willits at the University's Personnel office. After receiving and screening the resumes, his duty was to transmit to the hiring authority (Biggs) only those which met the minimum SUS qualifications for the advertised position.
On October 15, 1979, Biggs completed and forwarded to Willits a standard Administrative and Professional Requisition form. That form, in two places, describes the qualifications for the Associate University Attorney position as:
"Must be a member, or currently eligible to become a member of the Florida Bar. Prac- tice experience desirable." (Emphasis supplied.) (P-20, P-30.)
VI.
In May, 1979, the University had adopted Search and Screen Procedures which required that Search Committees be appointed to assist in evaluating applicants and to make hiring recommendations to the hiring authority. In an attempt to comply with those Procedures, Biggs appointed a Search Committee consisting of Associate University Attorney Joseph Cramer ("Cramer"), Associate University Attorney Ashmun Brown ("Brown"), and Emma Hill ("Hill"), a black female who was secretary to the University president; Brown was appointed chairman. In conformance with his previous practice, Biggs also appointed himself as a member of the Committee. Biggs' appointment of himself as a member of the Search Committee was not expressly prohibited by the existing Search and Screen Procedures. (P-5.) Neither did the published Procedures give reasonable notice to affected persons that self appointment by a hiring authority was impermissible. The Procedures did not restrict the communications or interchange that may take place between a hiring authority and a Search Committee; the two entities were not portrayed as mutual antagonists or as having inherently conflicting interests. It was not until April 16, 1980, after the events at issue in this case--that the University issued a written "clarification" of the Procedures indicating that a hiring authority could not serve on a search committee which she or he appoints.
VII.
After announcing her imminent resignation on October 9, 1979, Taylor visited Denson at his Student Services Office, discussed the duties of an Associate University Attorney, and encouraged him to apply for her position. Thereafter, Denson-- who was beginning to consider other career options--revised his resume and left it on Biggs' desk on October 15, 1979. Upon finding the resume, Biggs routinely forwarded it to Personnel for processing with the other resumes.
Biggs was surprised to learn that Denson was interested in the Associate University Attorney position. The only conversation, between them concerning that position occurred one or two weeks later when Biggs ran into Denson in a hallway. Biggs remarked, "I see you've applied for Carole Taylor's job, I thought you were going into private practice," (Tr. 624, 864-865) or words to that effect. Denson acknowledged Biggs' comment and no further
exchange took place. Denson had graduated from law school in August, and, at that time, was not yet a member of the Florida Bar. He took two sections of the Florida Bar examination in October, 1979, and the final section in February, 1980. 7/
There was nothing suspicious or unusual about the submittal of Denson's resume, and no adverse inference should be drawn. The vacancy announcements which directed resumes to be filed with Personnel had not yet been published. Since Denson was personally acquainted with Biggs, as well as the other University attorneys, it was altogether reasonable that he deliver his resume to the hiring authority's office.
VIII.
Numerous resumes began to arrive at Personnel. Willits screened them and, by memorandum dated November 13, 1979, transmitted the resumes of 38 applicants to Ashmun Brown, chairman of the Search Committee. (Tr. 106.) Pursuant to the University regulations (P-4, P-5), Willits transmitted only those resumes of applicants which he determined were "qualified" for the position. His memorandum stated that the identified applicants were "seemingly qualified" for the vacancy, subject only to subsequent verification of education and experience. (P-25.) Seven of the 38 applicants deemed qualified by Willits were not members of the Florida Bar, a fact evident from their resumes.
Included in that group were the resumes of Denson and Robert Taylor ("R. Taylor") a black male. 8/
On November 14 or 15, 1979, the Search Committee (Biggs, Brown, Cramer, Hill) held its first meeting to screen the resumes and reduce the number of those which warranted further consideration. They selected 12-15 applications (including Denson's and R. Taylor's) to be more closely considered at their next meeting and eliminated the others from further consideration.
A day or two later, the committee met for a second time. Each of the 12-15 remaining candidates was discussed and a consensus 9/ was reached that five candidates should be interviewed. In addition, it was agreed that Biggs should contact R. Taylor to determine whether he was interested in the position and arrange an interview.
On the morning of November 16, 1979, Biggs asked his staff assistant to call R. Taylor and set up an interview for that afternoon. R. Taylor initially agreed to the interview but later called back and canceled. His reason for canceling the appointment was that he had been called at 10:30 or 11:00 a.m., for a 1:30 or 2:00 p.m., appointment and he felt that insufficient time was available to change clothes and prepare for the interview. (Tr. 401.) Later that day, Biggs called R. Taylor back and discussed the nature of the job and the qualifications. From that conversation, R. Taylor mistakenly formed the impression that membership in the Florida Bar was a prerequisite for the position. Biggs--believing that the Florida Bar membership requirement had been or would be waived by Personnel--did not, in fact, inform Taylor that such membership was a qualification for hiring. 10/
By memorandum dated November 21, 1979, Willits transmitted to Brown, chairman of the Committee, approximately 34 additional resumes. As with his November 13, 1979, transmittal, Willits represented that the resumes belonged to applicants who were "seemingly qualified" (P-26) for the position. The resumes of nine of these applicants indicated that they were not members of the Florida Bar.
Because of this unexpectedly large number of additional resumes, Brown and Biggs jointly screened them and selected seven which they subsequently presented to the full Search Committee during the week of November 19, 1979. 11/ However, all 34 of the November 21, 1979, resumes were available to the other members of the Committee. Cramer chose to browse through them, Hill did not. (Tr. 387, 802.) After reviewing the resumes of the seven additional applicants, the Committee selected one to be interviewed along with the five finalists selected from the first group of applicants. Of the six applicants selected for personal interviews during the week of November 26, 1979, three were female, one of whom was black, and three were white males.
The Search Committee meetings were conducted informally and marked by the uninhibited exchange of ideas among its members. Decisions were made by consensus. Although Brown was the nominal chairman, Biggs ordinarily sat at the head of the table and, usually, led the discussion. However, he did not direct, unduly influence, or manipulate the Committee's decisions. Although he frequently asked questions, he was never an aggressive advocate on behalf of any particular applicant. Neither did he participate in the Committee's selection and ranking of the three finalists.
IX.
Between November 26 and 29, 1979, three of the four Committee members interviewed the six applicants. Due to illness, Biggs was absent when two of the applicants were interviewed, Charles Coffer ("Coffer") and Beverly Diehr.
The Committee's evaluations of three of the applicants--Arthur Johnson, Beverly Diehr, and Evelyn Sapp (a black female)--were markedly similar; perceived shortcomings or weaknesses caused them to be ranked lower than the three eventual finalists.
Those three finalists, which the Committee submitted to Biggs by order of preference, were (1) Coffer, a white male; (2) Robert Denson, a white male; and (3) Marilyn Wolf ("Wolf"), a white female. The attributes of each were compared and freely discussed. Wolf's main shortcoming was her lack of experience in a university setting. While Coffer's background was excellent, his motives in seeking employment at the University were questioned. (Tr. 750.) Denson's attributes and qualifications for the position were aggressively advocated by Brown. Both Brown and Cramer commented on Denson's outstanding performance as Assistant Dean of Student Services. That job, formerly performed by an attorney, included primary responsibility for all student disciplinary matters; it required a person who was sensitive to people's problems, able to effectively communicate with others, and cognizant of legal issues arising in the disciplinary context. Denson's effectiveness at the University and his ability to effectively interact with people were viewed as positive attributes by all. Brown, Cramer, and Biggs were also acutely aware of the extensive time-
-a year to a year and a half--required to train and familiarize new attorneys in the University's legal office. Of the six applicants, Denson was the only one who was not a member of the Florida Bar. However, during the Committee's evaluations, his lack of bar membership was not viewed as a disqualifying factor or a significant short- coming.
At its November 29, 1979, meeting, the Committee, at Biggs' request, ranked the final three applicants by order of preference: (1) Coffer, (2) Denson, and (3) Wolf. Biggs did not participate because he had not interviewed two of the applicants, Coffer and Dier. After receiving the Committee's ranking
of finalists, Biggs tentatively decided to hire Coffer, the Committee's first choice. However, before finalizing his decision, he decided to interview Coffer and introduce him to Executive Vice President John Nattress, Vice President William Elmore, and President Robert Marston. His subsequent effort to introduce Coffer to ranking University officials corroborates his claim that he had tentatively decided to hire Coffer, and tends to refute the University's allegation that Biggs had preselected Denson for the position.
At Biggs' request, Coffer subsequently visited the University on December 3, 1979, and was interviewed by Vice President Elmore, Vice President Nattress, and Biggs. 12/ These interviews convinced Biggs that Coffer had "tired of working ten-hour days" (Tr. 665-667) in private practice and that the University would be a "way-station" where Coffer would stay long enough for his wife to obtain a master's degree. A similar conclusion was reached by Vice President Elmore:
"I was not going to recommend to Mr. Biggs that he hire Mr. Coffer. I perceived in talking to him, Mr. Coffer probably .
had a misconception of the University's workload. I felt that he was probably more interested in improving his personal situa- tion . . . . I think Mr. Coffer was not interested in working more than 40 hours,
5 days a week. I think he was going to be disappointed once he became associate university attorney . . . ." (Tr. 817-818.)
Biggs concluded that Coffer would be unwilling to work the long hours expected of an Associate University Attorney. Biggs then considered the other two finalists. He knew Denson as a capable, articulate, and energetic individual. He also recognized that Denson, because of his experience in the University setting, could function effectively as an Associate University Attorney from the outset--without the usual year of training and familiarization. Wolf could not offer a similar advantage. On December 4, 1979, Biggs called the Committee together and announced his decision to hire Robert Denson. (Tr. 361, 672, 812- 814.)
On or about December 4, 1979, Biggs called Willits to announce his decision and obtain final clearance. 13/ Consistent with his (Willits') prior understanding of their agreement, Willits informed Biggs that Denson was unqualified for the position because he was not a member of the Florida Bar, that the vacancy announcement--by omitting Florida Bar membership as a prerequisite--served only to enlarge the applicant pool and did not waive the SUS position specifications. Biggs asked him to double check and see if there was a way for the Florida Bar membership requirement to be waived. Willits then referred the question to Robert Button ("Button"), the University's Personnel Director. He told Button that Biggs wanted a waiver of the SUS Florida Bar membership requirement in order to hire Denson, a white male, when there were more qualified black and female applicants. Button promised to return Biggs' call, but first wanted to review specific information on the applicants; including their sex, race, and bar membership. Later that day or the next, Willits presented Button with the requested information.
On December 5, 1979, Button called Biggs and explained his position on the proposed Denson hiring. He told Biggs that Personnel allowed the "current eligibility" requirement as an alternative to Florida Bar membership only for
the purpose of accommodating minorities or women practicing law in other states; that it was through this "flexibility" (P-27) that the University was able to hire Carole Taylor, a black female, and that such a mechanism could only be "used for affirmative action" (P-27). Button--who did not say he would disapprove the hiring of Denson--concluded with the following:
"In view of the search, I did not see how we could apply the exception to Rob Denson, a white male, wherein there are qualified blacks and women who exceed the minimum qualifications. However, that was Tom's decision to defend if some organization raised questions on his hiring of Rob Denson; but I would only say who is re- ferred to the Search Committee and who
was hired which is his decision alone and his to defend. Tom indicated that he would agree to this and he understood our position." (P-27.)
During the conversation, Biggs objected to applying different standards to persons in an applicant pool, one to females and minorities, and another to white males. He believed that Denson was the most qualified applicant and was prepared to defend his choice; he construed Button's statement as acknowledging that the hiring decision was his (Biggs') to make and his to defend.
On December 10, 1979, Denson accepted Biggs' offer of employment. Two days later, Biggs completed the standard employment form recommending that Denson be hired; it was approved that same day by Dr. Nattress. 14/ Two days later, the hiring was approved and effectuated by Personnel. 15/ When questioned later, Biggs assured both the University president and Vice President Nattress that all affirmative action obligations had been met and that he was prepared to defend his decision to hire Denson.
On December 13, 1979, the University's Affirmative Action Council met and discussed the Denson hiring. The council subsequently completed two investigative reports, the first of which was prepared without seeking Biggs' response or allowing him to reply to the allegations. The University president ultimately accepted the council's recommendation that a formal inquiry be initiated.
X.
Biggs' previous employment decisions effectively rebut an inference that his decision to hire Denson, instead of eligible female and minority applicants, was motivated by a discriminatory intent. The first Associate University Attorney he hired was Judith Brechner; subsequently he also hired Carole Taylor, a black female. His efforts to recruit them and meet, or even exceed, their salary demands negate any allegation that he was biased against females or minorities. Biggs' hiring decisions indicate an overriding desire to select applicants based on their experience, skill, interest in the position, and ability to meet the needs of the office.
XI.
The University's policy on allowing waivers of SUS position qualifications is confusing and inconsistent. In this case, its Personnel
Office published a vacancy announcement listing qualifications which were different and less stringent than those required by the SUS position specifications. The announcement did not state, or reasonably imply that applicants must be members of the Florida Bar before they may be hired.
Subsequently, Personnel approved, as qualified for the vacant position, numerous applicants (including Denson) whose resumes met the qualifications stated in the vacancy announcements but not the SUS qualifications. President Marston, Dr.
Nattress, Hart, and Willits apparently believed SUS qualifications could be waived in individual cases; (Tr. 208, 483-488, Nattress Deposition at p. 27, 18) Button, the University's personnel director, denies it. (Tr. 308.) Crook, a personnel officer, denies that there are waivers , but admits there are "equivalencies"--a similar mechanism for which there are no guidelines. (Tr.
429.) Carole Taylor, a black female, had previously been hired though she met neither SUS nor vacancy announcement qualifications. Button described this as an illustration of "flexibility". (P-27.) The thrust of the policy, as interpreted and administered by Personnel and University affirmative action officials, is that position qualifications--whether emanating from SUS specifications or vacancy announcement qualifications--may be effectively waived or lowered in individual cases in order to hire females or minorities, i.e., to promote affirmative action goals. There is no evidence that this practice is sanctioned by any University regulation or guideline.
ULTIMATE FINDINGS OF FACT
Ultimate facts are conclusions reached by applying inference and logic to evidentiary facts. See, Feldman v. Department of Transportation, 389 So.2d 692, 694 (Fla. 4th DCA 1980). The following conclusions address the charges brought against Biggs by the University.
XII.
Preselection
A preponderance of evidence does not establish that Biggs preselected or decided to hire Robert Denson prior to recruiting and evaluating other applicants for the job of Associate University Attorney. Although Biggs was impressed with Denson's performance as an Assistant Dean and, no doubt, felt Denson could be an effective Associate University Attorney, such facts, in themselves, do not establish preselection. There is no evidence that Biggs ever encouraged Denson to seek employment as an Associate University Attorney; at the time of the alleged preselection, Biggs believed Denson planned to enter private practice. 16/ With such a belief, it would have been improbable that Biggs decided, in advance, that Denson would be his choice. Prior to learning of Denson's interest in the position, Biggs engaged in conduct designed to broaden the applicant search and open the position to increased numbers of out-of-state female and black applicants. 17/ Denson's ultimate selection and employment under those broadened search criteria does not provide a sufficient basis to conclude that the criteria were originally devised with Denson in mind. Out of over 70 applicants, the Search Committee independently selected Denson as its number two choice. It was not until after his justifiable rejection of the Committee's number one choice that Biggs decided that Denson was the most qualified applicant and should be selected. His tenacious efforts to defend that decision are consistent with his conviction that his decision was correct.
XIII.
Service on the Search Committee
Biggs did not know and was not reasonably on notice that his service on the Search Committee was contrary to University Search and Screen Procedures. At the time, the published procedures did not expressly prohibit a hiring authority from serving on a Search Committee which he or she appoints; neither did the guidelines infer or give reasonable notice that such action was proscribed. Although Biggs served on the Search Committee, the weight of evidence indicates the Committee functioned in an independent manner: its discussions were free and open, its decisions were made by consensus. Biggs neither manipulated its decisions nor unduly influenced its discussions.
XIV.
Hiring "Unqualified Applicant for the Position
Biggs reasonably believed that the SUS requirement of Florida Bar membership had been "waived" by the University's Personnel Office. This conclusion is based on Personnel's action in advertising the position and subsequently screening and approving applicants; on Biggs' prior experience in obtaining waivers of the Florida Bar membership requirement; and on Personnel's inconsistent decisions and interpretations regarding waivers. When Biggs announced his decision to hire Denson, Willits protested that the SUS Florida Bar membership requirement had not, in fact, been "waived"; however, the final decision was then placed before the University Personnel Director, Robert Button. Biggs asked Button whether Denson met the minimum job qualifications and could be hired. (P-27.) Button answered that exceptions (a term seemingly synonymous with waivers) were allowed only for affirmative action purposes, that he did not see how an exception could be applied to hire a white male when there were qualified blacks and women who exceeded the minimum qualifications but that the decision on whether or not to hire Denson must be made by Biggs. Button did not say that Denson could not be hired, or that such a hiring would be disapproved by Personnel. Biggs reasonably construed this to mean that Personnel questioned the wisdom of his hiring Denson but that the decision was a permissible one which was his, and his alone, to make. If Denson could not be hired without violating University fair hiring practices, he had a right to expect that Button would have told him so. Biggs also had reasonable cause to believe that he could successfully justify hiring Denson on his merits--an impressive applicant with unique experience and demonstrated competence.
XV.
Compliance with the Affirmative Action Policy
Biggs' hiring of Denson was not proscribed by any provision of the University's Affirmative Action Plan, a fact seemingly admitted by the University's personnel officer--the person charged with monitoring compliance with the Plan. (Tr. 320-321.) No showing was made that the Plan placed a mandatory duty upon Biggs to hire a black or female applicant who he reasonably concluded was less qualified than a white male. Search Committees were created, in part, to ensure affirmative action and equal employment opportunity; Biggs hired the second choice of his Committee after reasonably rejecting its first choice. Due process requires that charges against an accused be specific in nature. Care must be taken when accusing persons of violating affirmative action policies which are often couched in vague or general terms.
XVI.
Discrimination in Employment
By his recruitment and selection of Denson, Biggs did not discriminate against female or black applicants on the basis of sex or race. His action was not motivated by discriminatory intent; any inference to the contrary is effectively negated by his prior nondiscriminatory hiring decisions and his effort to increase the number of female and black applicants for Carole Taylor's vacant position. His overriding objective was to select the best and most qualified applicant. His failure to select a black or female applicant who he reasonably considered less qualified than a white male cannot and should not be considered impermissible discrimination.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding. section 120.57(1), Fla. Stat. (1979).
The University has failed to support its charges against Biggs by a preponderance of competent evidence. While this is not a penal or license revocation proceeding, Biggs' vital interests are at stake: his career and professional reputation are placed in jeopardy by the University's charges. Such charges must be supported by evidence which is indubitably as substantial as the consequences: loose interpretations, problematic evidence, or
disconnected innuendo are insufficient. Cf. Bowling v. Department of Insurance,
394 So.2d 165, 172 (Fla. 1st DCA 1981). In light of the foregoing, it must be concluded that Biggs did not violate University requirements, procedures, and policies as charged in the University's Complaint. Just cause for disciplining him, within the meaning of Section 6C-5.27(1), Florida Administrative Code, has not been shown and the charges should be dismissed.
Respondent, citing Section 111.07, Florida Statutes (1979), moves for an award of attorney's fees and costs incurred by him in defending against the University's allegations. However, Section 111.07, supra, applies only to attorney's fees and costs incurred in defending against civil actions brought against public employees. Since this is an administrative proceeding--not a civil action--the Respondent's motion is denied.
The parties have filed proposed findings of fact which, in the main, have been incorporated herein. To the extent they are not, such proposed findings are rejected as unsupported by the evidence or irrelevant to resolution of the issues presented.
Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED:
That the University of Florida enter a Final Order dismissing its charges against Thomas S. Biggs, Jr.
DONE AND RECOMMENDED this 17th day of April, 1981, in Tallahassee, Florida.
R. L. CALEEN, JR. Hearing Officer
Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32301
(904) 488-9675
FILED with the clerk of the Division of Administrative Hearings this 17th day of April, 1981.
ENDNOTES
1/ Biggs maintained that the University Attorney's Office was not a good training ground for beginning lawyers; he articulated this view to Denson and other law students at the University.
2/ References to the transcript of hearing are referred to as "Tr. "; Petitioner's and Respondent's Exhibits will be referred to as "P- " and "R-
", respectively.
3/ Under University regulations, temporary full-time employment could be appointed for no more than four months within a 12-month period. However, the obtaining of an extension was not perceived to be a problem. (Tr. 858.)
4/ Biggs testified that Willits agreed to such a waiver, Willits denied doing so. The subsequent actions of both indicate that it is more likely that, at that time, Willits neither approved nor disapproved a waiver of the minimum qualification of Florida Bar membership.
5/ Biggs had previously issued a vacancy announcement which varied from SUS position specifications announcements. Announcements in 1976 and 1978 required membership in the Florida Bar while a 1974 announcement included "currently eligible" language.
6/ Biggs had reasonable grounds to believe that Personnel could obtain a waiver of the Florida Bar membership requirement. In 1977, Personnel had allowed a "deviation" from vacancy announcement and SUS Florida Bar membership requirements in order to hire Carole Taylor, a black female. (P-28.) As in the Taylor case, Biggs sought a waiver on affirmative action grounds.
7/ Subsequently, he was notified of his passage of the October exam in December, 1979; of his passage of the February exam on April 1, 1980, and was sworn in as a member of the Florida Bar on April 2, 1980. (Tr. 822.)
8/ Robert Taylor was the only black male applicant in this initial group of 38. His wife was a faculty member at the university's law school, and on November 6, 1979, the dean of the law school sent Taylor's resume to Biggs along with a favorable recommendation. Biggs' subsequent failure to transmit that resume to Personnel was inadvertent.
9/ If any Committee member wanted a candidate to remain in contention, the candidate was not eliminated. (Tr. 639.)
10/ This finding is based on the testimony of Biggs. (Tr. 710-711.) R. Taylor was not a member of the Florida Bar, a fact readily apparent from his resume. (P-33.) Biggs' subsequent arrangement of an interview with him would have been futile if he had already determined that R. Taylor was unqualified for the position. Moreover, R. Taylor had been frustrated by his job-hunting experiences and approached the potential job with a discernible lack of enthusiasm, (Tr. 404) a fact which may have contributed to his misunderstanding of the job qualifications.
11/ Brown and Biggs intentionally included in that group of seven the resumes of the only two black applicants which they had identified, both of whom were women. They failed to identify one black applicant, Samuel Stafford; consequently his name was not included.
12/ President Marston was unavailable on that date.
13/ This is based on the testimony of Biggs. Willits' testimony that the phone call took place on November 30, 1979, is rejected because: (1) Biggs did not decide on hiring Denson until after interviewing Coffer on December 3, 1979, and
(2) Willits asserted that Biggs said he was going to meet with the Search Committee on the afternoon of his call. The Committee did not, however, meet between November 29 and December 4, 1979.
14/ Dr. Nattress neither knew Denson was not licensed to practice law in Florida nor knew that Florida Bar membership was a qualification for the position. (Nattress Deposition.)
15/ Personnel Officer Frances Crook noted on the form that it was approved per instructions from Dr. Nattress and that Denson "does not meet minimum requirements until successful completion of Bar examination." (P-36.)
16/ Indeed, Biggs had consistently encouraged law students not to seek employment with his office because of its disadvantages as a training ground, supra, Footnote 1.
17/ These actions include seeking a waiver of the Florida Bar membership requirement and placing the vacancy announcement in a publication used by black lawyers.
COPIES FURNISHED:
Frank J. Petramalo, Jr., Esquire Suite 1300
1000 Connecticut Avenue, NW Washington, DC 20036
Steven D. Merryday, Esquire Post Office Box 1288
Tampa, Florida 33601
| Issue Date | Proceedings |
|---|---|
| Apr. 17, 1981 | Recommended Order sent out. CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Apr. 17, 1981 | Recommended Order | Recommend dismissal of petition. It does not prove bias or bigotry in hiring practices. |
