STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
ABIGAIL MOBLEY,
Petitioner,
vs.
FLORIDA AGRICULTURAL AND MECHANICAL UNIVERSITY,
Respondent.
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) Case No. 04-0631
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RECOMMENDED ORDER
A formal hearing was conducted in this case on May 27, June 28 and 29, and July 9, 2004, in Tallahassee, Florida, before Suzanne F. Hood, Administrative Law Judge with the Division of Administrative Hearings.
APPEARANCES
For Petitioner: Patricia A. Tucker
Qualified Representative 2802 Primrose Lane
Tallahassee, Florida 32301
For Respondent: Avery D. McKnight, Esquire
Ruth Nicole Campbell, Esquire Florida A & M University
300 Lee Hall
Tallahassee, Florida 32307 STATEMENT OF THE ISSUE
The issue is whether Respondent properly decided to deny Petitioner tenure and promotion.
PRELIMINARY STATEMENT
In a letter dated March 31, 2003, Respondent Florida Agricultural and Mechanical University (Respondent) advised Petitioner Abigail Mobley (Petitioner) that it would not offer her employment beyond May 7, 2004, because she had not met the College of Education's (COE) requirements for tenure. According to the letter, Petitioner failed to meet the publication requirements set forth in the COE's tenure criteria.
Subsequently, Respondent issued Petitioner a terminal contract for the 2003-2004 academic year.
By letter dated April 29, 2003, Petitioner appealed the employment action by requesting a Step One hearing pursuant to Florida Administrative Code Rule 6C3-10.232(7). The hearing convened on May 29, 2003. On July 8, 2003, the Step One Representative issued a decision upholding Respondent's action.
In a letter dated June 4, 2003, Respondent advised Petitioner that her application for promotion to the rank of Associate Professor was denied.
In a letter dated August 21, 2003, Petitioner appealed the Step One decision by requesting a Step Two hearing pursuant to Florida Administrative Code Rule 6C3-10.232(8). The Step Two hearing convened on September 11, 2003. On December 2, 2003, the Step Two Representative issued a written decision, upholding the denial of tenure and issuance of a terminal contract. The
Step Two Representative also found that Petitioner's application for promotion was moot.
In a letter dated December 22, 2003, Petitioner requested a Step Three hearing pursuant to Florida Administrative Code Rule 6C3-10.232. Respondent referred Petitioner's request to the Division of Administrative Hearings on January 7, 2004.
The parties filed a Joint Response to Initial Order on February 25, 2004. The undersigned issued a Notice of Hearing on February 26, 2004. The notice scheduled the hearing for April 14, 2004.
On April 7, 2004, Petitioner filed a Motion for Continuance. On April 8, 2004, the undersigned issued an Order Granting Continuance and Re-Scheduling the case for May 20, 2004.
On May 4, 2004, Petitioner filed a Motion for Continuance.
On May 6, 2004, the undersigned issued an Order Granting Continuance and Re-Scheduling Hearing for May 27, 2004.
On May 27, 2004, Petitioner filed an Emergency Motion for Continuance. When the hearing commenced, the undersigned heard oral argument on the motion. That same day, the undersigned issued an Order Granting Continuance and Re-Scheduling Hearing for June 28 and 29, 2004.
On June 8, 2004, Petitioner took the deposition of Professor Bobby E. Lang.
On June 15, 2004, Respondent filed a Motion to Quash Subpoena. After hearing oral argument in a telephone conference, the undersigned issued an Order granting the motion on June 24, 2004.
The hearing commenced as scheduled on June 28 and 29, 2004.
Because the parties did not complete the presentation of all testimony within the scheduled time, the undersigned granted a continuance and rescheduled the hearing for July 9, 2004.
During the hearing, Petitioner testified on her own behalf and presented the testimony of nine witnesses. Petitioner offered 21 exhibits, which were admitted into evidence.
Respondent presented the testimony of two witnesses.
Respondent offered six exhibits that were accepted into the record as evidence.
The transcript was filed on August 5, 2004. In orders dated August 10, 2004, and September 9, 2004, the undersigned granted the parties extensions of time to file their proposed recommended orders. Respondent filed its Proposed Recommended Order on September 10, 2004. Petitioner filed her Proposed Recommended Order on September 14, 2004.
FINDINGS OF FACT
On or about August 8, 1997, Petitioner began working for Respondent as an Assistant Professor in a tenure-earning position in the COE, Department of Health, Physical Education,
and Recreation (DHPER). Because Petitioner was serving in a tenure-earning position, Respondent had to award her tenure by the end of six years of continuous full-time service or give her notice that Respondent would not offer her further employment beyond the end of the seventh year of employment.
Petitioner received a copy of the applicable tenure criteria soon after she began her employment. The tenure criteria for scholarly publications required the following:
(a) publish or show acceptance of at least three publications, including books, monographs, and articles in local, state, regional and national journals, which meet the peer-review process, not including abstracts/proceedings; (b) achieve additional publication credit, which may include individual citations in a text's quotes or credits for scholarly endeavors; and (c) present at least two papers at state, regional or national professional meetings.
Petitioner also received a copy of Respondent's criteria for promotion from Assistant Professor to Associate Professor. The criteria state as follows in relevant part:
The minimum number of publications will be three (3), which must be in indexed refereed professional journals, of which at least two
(2) must list the candidate as the primary author. This includes, not in addition to, chapters in books, monographs for national use, and books. Chapters will treated as journal publications. The number of publications will be cumulative.
Respondent is required to provide its faculty members with an annual faculty evaluation. For faculty members in tenure-earning positions, Respondent also is required to provide an annual tenure appraisal.
On April 24, 1998, Petitioner received her 1997-1998 faculty evaluation. The evaluation reflected Petitioner's poor rating for evidence of papers or articles published in professional journals and/or of books published. There is no evidence that Respondent provided Petitioner with an annual tenure appraisal for the 1997-1998 academic year.
Each academic term, Respondent and each of its faculty members, in tenured and non-tenured positions, sign an Assignment of Responsibility Form. The form lists the credit and non-credit generating activities and assigns a percentage of the employee's designated effort for each activity. The total percentage of designated effort for each academic term should equal 100 percent for one full-time-equivalent (FTE) faculty.
The credit generating activities are specific student classes/courses. An assignment to teach courses with more than cumulative credit hours in the same semester is considered an overload. Faculty members on a nine-month pay plan are never required to accept an overload assignment. Assuming
responsibility for designated effort in excess of 100 percent is strictly voluntary.
Instructors receive additional pay beyond their base salary when they accept an overload assignment. Respondent always gives its nine-month faculty the opportunity to teach extra classes as an overload before hiring additional staff.
The same is true for teaching summer school.
Respondent's nine-month faculty has first choice to earn additional pay by teaching classes in summer school before Respondent hires adjunct professors. The nine-month faculty is not required to teach summer school.
The non-credit activities include the following:
supervision of cooperative education; (b) clinical instruction; (c) other instructional efforts (non-credit); (d) research; (e) public service; (f) academic advisement; (g) academic administration; (h) university governance; (i) leave of absence with pay; and (j) collective bargaining release time.
There is no set percentage of designated effort for any particular non-credit activity. Respondent's faculty can always request that some percentage of their designated effort be attributable to one of the non-credit activities, such as research. In such a case, Respondent would assign the faculty member less designated effort to other non-credit activities such as academic advisement.
In every case, tenure-earning faculty members know or should know that Respondent expects them to begin working on research projects when they are hired in order to meet the tenure criteria for scholarly publications within the required time frame. This is true regardless of whether they elect to teach overloads or summer school and regardless of whether they request and receive a specific amount of designated effort for research each academic term. Other than as set forth below, there is no evidence that Petitioner ever requested Respondent to assign her a greater percentage of designated effort to research.
On April 28, 1998, Petitioner signed the Assignment of Responsibility Form for the 1998 Spring semester. The form indicates that 86 percent of Petitioner's designated effort was spent teaching five classes for a total of 13 credit hours. Her only other assignment was academic advisement, which represented
14 percent of her designated effort.
Petitioner agreed to teach during the 1998 Summer B semester. She taught two classes for a total of 3 credit hours, representing 64 percent of her designated effort. She had no other assignments that summer.
For the 1998 Fall semester, Petitioner accepted a teaching overload. She taught six classes for a total of 15 credit hours, representing 99 percent of her designated effort.
She also performed academic advisement for 21 percent of her designated effort.
In the Spring semester of 1999, Petitioner taught five classes for a total of 13 credit hours, representing 86 percent of her designated effort. She was assigned to perform academic advisement for the balance of her time, equal to 14 percent of her designated effort.
On April 28, 1999, Petitioner received her 1998-1999 faculty evaluation form. The form again reflected her poor rating for evidence of papers or articles published in professional journals and/or books published.
On June 1, 1999, Petitioner received a tenure appraisal for the 1998-1999 academic year. The appraisal informed Petitioner that she needed to improve in the research category. Specifically, she needed to publish and present at least three to four research articles within a five-year period before applying for tenure.
For the Summer B semester of 1999, Petitioner taught two classes for a total of four credit hours, representing 84 percent of her designated effort. She had no other assignments that summer.
In the Fall semester of 1999, Petitioner taught seven classes for a total of 16 credit hours, representing 106 percent
of her designated effort. She also performed academic advisement for an additional 20 percent of designated effort.
For the Spring Semester 2000, Petitioner taught six classes for a total of 14 credit hours, representing 93 percent of her designated effort. She served as an academic advisor for an additional 20 percent of her designated effort.
On April 26, 2000, Petitioner received her 1999-2000 faculty evaluation form. The form indicates that Petitioner's research and creative ability were not applicable. The record does not show that Petitioner engaged in any scholarly presentations or research and writing projects during the 1999- 2000 academic year.
In the Summer B term of 2000, Petitioner taught one class for a total of one credit hour, representing four percent of her designated effort. She did not have any other assigned duties that summer.
For the Fall semester 2000, Petitioner taught seven courses for a total of 14.5 credit hours, representing 91 percent of her designated effort. She also agreed to devote three percent of her designated effort in each of the following areas: (a) research; (b) public service; and (c) academic advisement.
In the Spring semester of 2001, Petitioner taught six classes for a total of 14 hours, representing 93 percent of her
designated effort. She also was assigned the following responsibilities: (a) five percent of her time in research; (b) five percent of her time in public service; and (c) 10 percent of her time in academic advisement.
For the Summer A term of 2001, Petitioner taught two classes for a total of three credit hours, representing 62 percent of her designated effort. In Summer B term of 2001, Petitioner taught two classes for a total of three credit hours, representing 65 percent of her designated effort. She had no other assignments that summer.
On July 5, 2001, Petitioner received her annual faculty evaluation for the 2000-2001 academic term. Petitioner received a fair rating regarding evidence of papers or articles published in professional journals and/or of books published.
On August 27, 2001, Petitioner received her annual tenure appraisal for the 2000-2001 academic term. The appraisal acknowledges that Petitioner had improved significantly in the areas of research and scholarly activities. According to the appraisal, Petitioner had made several research presentations, submitted articles for publication, and choreographed several dance pieces for the Orchesis Dance Concert and public school activity programs. The appraisal stated that after a few of Petitioner's research articles were published, she would be on
par for complete satisfaction of the scholarly publications requirements.
The August 27, 2001, tenure appraisal also commended Petitioner for her public service work. At the same time, the appraisal warned Petitioner not to commit too much of her time to public service because she might neglect other tenure criteria areas. The appraisal advised Petitioner that it was extremely important to balance her time between teaching, research, and service.
In the Fall semester of 2001, Petitioner taught five classes, for a total of 16 credit hours, representing 96 percent of her designated effort. She spent 20 percent of her designated effort working as an academic advisor.
For the Spring semester of 2002, Petitioner taught six classes for a total of 14 credit hours, representing 93 percent of her designated effort. She divided the balance of her designated effort as follows: (a) five percent to research;
five percent to public service; and (c) 10 percent to academic advisement.
In the Summer A term of 2002, Petitioner taught two classes for a total of three credit hours, representing 65 percent of her designated effort. She had no other assignments that summer.
For the 2001-2002 academic term, Respondent did not perform a faculty evaluation or tenure appraisal of Petitioner. Dr. Virden Evans, Chairman of DHPER, gave Petitioner copies of the evaluation forms and requested that she perform a self- evaluation before meeting with him to discuss her performance. Petitioner never returned the evaluation forms to Dr. Evans.
On September 9, 2002, Petitioner submitted her applications for tenure and promotion, together with a portfolio to document her qualifications. The tenure application listed the following two research projects as in progress: (a) a 2001 project titled "Exercise Adherence Among African-American Females"; and (b) a 2002 project titled "Perceived Stress and Burnout of MEAC Track and Field Athletes." There is no evidence that Petitioner completed, or submitted for publication, a paper or article based on either of these research projects.
The tenure application also listed a 2002 research project titled "An Assessment of NCAA D-1A Academic Advisors Salaries", naming Petitioner as a contributing, but not leading participant. The application indicated that the participants in the study submitted the research project for acceptance at the 2003 American Alliance of Health, Physical Education, Recreation, and Dance (AAHPERD) 118th National Convention as part of its program and proceedings during a research consortium poster session. There is no persuasive evidence that the
research project was accepted at the national convention in Baltimore, Maryland, as submitted.
During the hearing, Petitioner presented evidence that the research project involving academic advisors salaries was submitted as a one-page abstract in May or June of 2002, and accepted in November or December 2002, for poster presentation at the February 2003 Southern District AAHPERD Convention, in Savannah, Georgia. There is no persuasive evidence that Petitioner timely provided Respondent with documentation of the abstract's acceptance as a poster presentation during a convention proceeding or that the research project resulted in a peer-reviewed written paper that was ever published other than as an abstract in the convention program. The tenure criteria at issue here specifically exclude abstracts/proceedings.
Petitioner's tenure application listed several dance productions, naming her as the director and choreographer. It is apparent that Petitioner spent valuable time creating the dances, writing scripts for skits, designing costumes, etc. However, the greater weight of the evidence indicates that these creative activities are not scholarly publications in journals that meet the peer-review process.
During the hearing, Petitioner presented evidence that she included a reference to her doctoral dissertation in her portfolio. The dissertation, entitled "A Comparison of
Perceived Stress Levels of College Freshman Athletes and Non- Athletes" was published in 1987 by the Florida State University, College of Education, Department of Movement Science and Physical Education, in partial fulfillment of the requirement for Petitioner's degree of Doctor of Philosophy. The most persuasive evidence indicates that the dissertation is not a peer-reviewed scholarly publication in a journal or a book, completed by Petitioner within her tenure-earning time frame.
Petitioner is credited as the author of one scholarly publication that meets the requirements of the applicable tenure and promotion criteria. In August 2002, Petitioner's article entitled "Introductory Activities in Elementary Physical Education Classes" was accepted for publication in the Winter 2003 Journal of the Florida Alliance for Health, Physical
Education, Recreation and Dance.
In September 2002, Dr. Evans continued to serve as Chairman of DHPER. As a tenured professor, Dr. Evans attended some of DHPER's Tenure and Promotion Committee meetings but did not vote on Petitioner's applications for two reasons. First, he abstained because, as Chairman of DHPER, he would have to make a recommendation on the applications to the COE Tenure and Promotion Committee. Second, Dr. Evans had a close professional relationship with Petitioner and reserved his input on her
applications, hoping that she would meet the publication requirements before he had to take a position.
Dr. Janet Sermon, COE's Assistant Dean for Academic Affairs, was one of DHPER's tenured faculty members. In the fall of 2002, Dr. Sermon often was required to act on behalf of the COE's Dean or, occasionally, in the capacity of COE's Acting Dean in recommending approval or disapproval of tenure and promotion applications to the University Tenure and Promotion Committee. Therefore, she did not participate in DHPER's Tenure and Promotion Committee meetings. She did not vote on Petitioner's applications due to this potential conflict of interest.
Coach Bobby Lang was one of DHPER's tenured faculty members. He was on medical leave during the fall of September 2002. The most credible evidence indicates that Coach Lang had notice of Petitioner's pending applications but chose not to participate in DHPER's Tenure and Promotion Committee meetings while on medical leave.
Coach Samuel Bogan was one of DHPER's tenured faculty.
His coaching schedule made it difficult for him to participate in DHPER Tenure and Promotion Committee meetings. Coach Bogan had notice about Petitioner's pending applications but was absent when the DHPER Tenure and Promotion Committee voted on her applications.
DHPER had four other tenured faculty members: (a) Dr. Steve Chandler; (b) Dr. Maria Okeke; (c) Dr. Barbara
Thompson, Chairperson of DHPER's Tenure and Promotion Committee; and (d) Dr. Joseph Ramsey.
DHPER's Tenure and Promotion Committee met for the first time on September 16, 2002. The committee did not consider Petitioner's application at that meeting.
The DHPER Tenure and Promotion Committee met again on October 2, 2002, to vote on Petitioner's tenure and promotion applications. Coach Bogan, Dr. Evans, Dr. Sermon, and Coach Lang were not present for reasons stated above. A secret ballot on Petitioner's tenure application resulted in two (2) votes to deny and two (2) abstentions. A secret ballot on Petitioner's promotion application resulted in three (3) votes to deny and one (1) abstention.
In a memorandum dated October 3, 2002, Dr. Thompson advised Dr. Evans of the committee's decision to recommend denial of Petitioner's request for tenure and promotion. In a letter dated October 4, 2002, Dr. Evans advised Petitioner of the committee's vote to recommend denial of her applications. In a letter dated October 8, 2002, Dr. Evans explained to Petitioner that the committee based its recommendation on the apparent lack of a sufficient number of publications.
Subsequently, Dr. Evans recommended approval of Petitioner's applications to the COE Tenure and Promotion Committee. Thereafter, the COE committee voted to recommend denial of both applications.
Subsequently, COE's Dean recommended denial of Petitioner's applications to the University Tenure and Promotion Committee. The University committee voted to recommend approval of Petitioner's promotion application and denial of her tenure application.
Dr. Fred Gainous was Respondent's President during the time that Petitioner's applications were pending. Dr. Gainous had the responsibility to nominate candidates for tenure to Respondent's Board of Trustees, the entity with the authority to make final decisions granting tenure. The Board did not consider applications for tenure without such a nomination.
Dr. Gainous did not nominate Petitioner for tenure before Respondent's Board of Trustees.
President Gainous had authority to make the final decision regarding Petitioner's application for promotion. Dr. Gainous took no action in this regard because Petitioner's promotion was a moot question in light of the denial of her application for tenure and the issuance of a terminal contract for the 2003-2004 academic term.
In a letter dated March 31, 2003, President Gainous advised Petitioner that her application for tenure was denied and that she would not be offered further employment beyond the end of her seventh year of employment. The letter states that the action was based on Petitioner's failure to meet the publication requirements of the COE.
Dr. Gainous sent Petitioner a letter dated June 3, 2003. The letter advised Petitioner that her application for promotion was denied.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding pursuant to Sections 120.569 and 120.57(1), Florida Statutes. See also Fla. Admin. Code R. 6C3-10.232(9).
Petitioner has the burden of proving by a preponderance of the evidence that she is entitled to tenure and promotion. See Florida Department of Transportation v. J.W.C. Company, 396 So. 2d 778 (Fla. 1st DCA 1981)(The general rule is that a party asserting the affirmative of an issue has the burden of presenting evidence as to that issue.); Florida Administrative Code Rule 6C3-10.232(3)(The complainant has the burden of proof in all complaints, except disciplinary complaints.)
Florida Administrative Code Rule 6C-5.940 states as follows in pertinent part:
(e) The decision to recommend an employee for tenure shall be made no later than the sixth year of continuous full-time service or equivalent part-time service in a tenure- earning position. Tenure-earning employees not recommended for tenure by the end of six years of continuous full-time, or equivalent part-time service, shall be given notice that further employment will not be offered.
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(i) The recommendation of an employee for tenure shall signify that the Chief Administrative Officer is satisfied the employee will continue to make significant professional contributions to the University and the academic community. Upon recommendation by the Chief Administrative Officer and approval by the Board, tenure shall be awarded.
Florida Administrative Code Rule 6C3-10.211(5) states as follows in relevant part:
(5) Granting of Tenure
(a) By the end of six years of continuous full-time, or equivalent part-time service in a tenure-earning position in the University, a faculty employee shall be nominated for tenure or given notice that further employment will not be offered, in the affected position with reason(s) why the employee was not nominated for tenure.
In this case, the applicable tenure criteria required the publication, or acceptance for publication, of at least three books, monographs, or articles, in peer-reviewed journals. Petitioner's application and portfolio contained only one such
publication, i.e. her 2002 article, accepted for publication in a 2003 journal. Petitioner's 1987 dissertation was not peer- reviewed or published within the time she was earning tenure.
Petitioner's dance choreographies were creative activities that were not appropriately peer-reviewed. The abstract of the research project in which Petitioner participated does not qualify as a scholarly publication because being included in the program and proceedings of a convention as a poster presentation does not meet the more stringent requirements for publishing a peer-reviewed article in a journal.
As to the applicable criteria for promotion, Petitioner provided Respondent with only the 2002 article that she, as the sole/primary author, published in an indexed and refereed professional journal. Additionally, the failure to qualify for tenure and the issuance of the terminal contract makes the question of Petitioner's promotion moot.
Respondent may have discretion under some circumstances to extend the time during which a faculty member may qualify for tenure. However, one cannot compare the denial of tenure and promotion here with the unknown facts of some other case involving Respondent and another candidate for tenure.
Petitioner attempted to show that, in the past, Respondent awarded tenure to faculty members who relied on
dissertations or some type of creative activities to constitute scholarly publications. Regardless of Respondent's interpretation of prior versions of COE tenure criteria, the criteria at issue here do not allow such flexibility.
Petitioner had adequate notice from the time she began her employment as an Assistant Professor that Respondent expected her to meet the tenure and promotion criteria within the prescribed time frame. She knew or should have known that she needed to balance her time and energy between teaching, research, and service. Instead of ensuring that she was on target to meet publication requirements, Petitioner voluntarily accepted and received additional wages for overload and summer school assignments.
Petitioner argues that Respondent made procedural errors in the processing of her applications. For example, Petitioner claims that not all of DHPER's tenured faculty had notice of the DHPER Tenure and Promotion Committee meetings, depriving them of an opportunity to vote on Petitioner's applications. The weight of the evidence indicates that this argument is without merit. In any event, regardless of any such procedural error, Petitioner has not met her burden in this de novo hearing.
Based upon the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore,
RECOMMENDED that a final order be entered denying Petitioner tenure and promotion and terminating her employment.
DONE AND ENTERED this 5th day of October, 2004, in Tallahassee, Leon County, Florida.
S
SUZANNE F. HOOD
Administrative Law Judge
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
(850) 488-9675 SUNCOM 278-9675
Fax Filing (850) 921-6847 www.doah.state.fl.us
Filed with the Clerk of the Division of Administrative Hearings this 5th day of October, 2004.
COPIES FURNISHED:
Avery D. McKnight, Esquire Ruth Nicole, Esquire Florida A & M University
300 Lee Hall
Tallahassee, Florida 32307-3100
Patricia A. Tucker 2802 Primrose Lane
Tallahassee, Florida 32301
Elizabeth McBride, General Counsel Florida A & M University
300 Lee Hall
Tallahassee, Florida 32307-3100
Dr. Fred Gainous, President Florida A & M University
400 Lee Hall
Tallahassee, Florid 32307-3100
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions within
15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.
| Issue Date | Document | Summary |
|---|---|---|
| Oct. 27, 2004 | Agency Final Order | |
| Oct. 05, 2004 | Recommended Order | Petitioner is not entitled to tenure and promotion due to insufficient publications. |
