STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CAROL J. CARGILL, )

)

Petitioner, )

)

vs. ) CASE NO. 93-5558

) UNIVERSITY OF SOUTH FLORIDA, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in this case in Tampa, Florida on July 25, 1994, before Arnold H. Pollock, a Hearing Officer with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Michael S. Hooker, Esquire

Richard E. Fee, Esquire Glenn, Rasmussen & Fogarty Post Office Box 3333 Tampa, Florida 33602

For Respondent: Thomas M. Gonzalez, Esquire

Thompson, Sizemore & Gonzalez Suite 200, 109 North Brush Street Post Office Box 639

Tampa, Florida 33601

Henry W. Lavandera, Esquire Assistant General Counsel University of South Florida 4202 East Fowler Avenue Tampa, Florida 33620-6250

STATEMENT OF THE ISSUES

The issue for consideration in this case is whether Petitioner, Carol J. Cargill, was properly removed from her position as Director of the University's International Language Institute and the related stipend therefore properly terminated.

PRELIMINARY MATTERS

By letter dated October 27, 1992, Provost G. G. Meisels informed Dr. Cargill that she was to be removed from her administrative assignment as Director of the University of South Florida's, (University), International Language Institute, (ILI), effective immediately, and that the overload portion of her salary related to that position would be removed effective November 1,

1992. Dr. Cargill initiated a protest of that action through the University's grievance procedure, and thereafter, on September 27, 1993, filed a Petitioner for Relief under Rule 6C4-10.010(9), F.A.C.. The matter was subsequently forwarded to the Division of Administrative Hearings for formal hearing under Section 120.57(1), Florida Statutes, and this hearing ensued.

At the hearing, convened after delays requested by both parties, the University, charged with the burden of proof herein by the Hearing Officer at hearing, presented the testimony of Dr. Cargill; Richard Noel Taylor, Associate Professor of Philosophy and Interim Dean of Continuing Education; Dr. Tennyson

J. Wright, Assistant Provost; and Trudy E. Frecker, Director of Personnel. The University also introduced University Exhibit 1.

Dr. Cargill testified in her own behalf and presented the testimony of Dr.

Richard H. Preto-Rodas, tenured Professor at the University and formerly Director of the Division of Modern Language and Linguistics. Dr. Cargill also presented the testimony, by deposition of Roger W. Cole, Professor and Director of the Division of Modern Languages; Rollin Charles Richmond; Dr. Wright; and Dr. Gerhard G. Meisels, currently Professor of chemistry and formerly University Provost. Dr. Cargill also introduced her Exhibits A through M, which included the depositions mentioned above.

A transcript of the proceedings was provided and subsequent to the receipt thereof, both counsel submitted Proposed Findings of Fact which have been ruled upon in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. Dr. Cargill, a graduate of Brown, New York University, and Georgetown University, was recruited by the University in 1977. She was hired as a professor in linguistics on a nine month contract. In 1978 she began to develop the ILI, and thereafter took the title of Director, receiving therefor a 20 percent overload to her salary, separate and apart from her academic salary for a full time load. She was never officially appointed as "Director" of the ILI. Her duties with the ILI were separate and apart from her duties as a faculty member. Her appointment to the faculty at the University was as a 1.0 Full Time Effort, (FTE) professor in Linguistics in the Division of Modern Languages and Linguistics, for which she was tendered and signed a standard State University System contract for each year of her employment as a professor, and for which she received a salary pursuant to the United Faculty of Florida Collective Bargaining Agreement, (CBA). The "Directorship" of the ILI is not within the legislative classification of Director.

   
   

2. Faculty and other appointments at the University are made either to a "position" which is a creation of the legislature, or to "Other Personnel Services", (OPS), which is, by its nature, temporary.

   
   

3. On or about May 5, 1992, Dr. Roger Cole, Professor and Director of the Division of Modern Languages, requested that Dr. Cargill tender her resignation as Director of the ILI. Dr. Cargill refused to do so. Thereafter, on August 10, 1992, Dean Richmond, Dean of the College of Liberal Arts and Sciences, recommended to Provost Meisels that Dr. Cargill be replaced as Director of the ILI.

   
   

4. In response to that recommendation, Provost Meisels appointed a three- person review panel to review the material accumulated regarding Dr. Cargill's directorship of the ILI and to conduct such interviews as it deemed necessary.

   Provost Meisels, in his charge to the panel, directed it to advise him as to whether, in its opinion, Dean Richmond's recommendation, based on information submitted by Dr. Cole, that Cargill be removed, "might be reached by a reasonable individual."

   
   

5. On October 5, 1992, the review panel notified Provost Meisels that it had concluded the recommendation met the "reasonableness" standard articulated, and on October 27, 1992, Provost Meisels, in a two page letter to Dr. Cargill, "immediately" removed her as Director of the ILI, and stopped payment of the salary overload she was receiving for those services, effective November 1, 1992. In this letter, Provost Meisels advise Dr. Cargill no additional responsibilities would be assigned to her for the balance of the semester, and she was provided with a "leave with pay for one semester and one summer at 1.0 FTE anytime before the end of the calendar year 1994. Though no specifics were provided either in the letter or at hearing regarding the basis for the apparent dissatisfaction with Dr. Cargill's performance at ILI, the underlying tenor of the letter clearly indicates such existed.

   
   

6. Dr. Meisels characterized his action as a reassignment pursuant to Board of Regents Rule 6C-5.130, and though the University's decision to reassign her was discretionary and authorized by that rule, she had the right to file a grievance regarding the matter pursuant to USF Rule 6C4-10.010. The University neither followed nor attempted to follow the procedures for removal for just cause set forth in Rule 6C4-10.009, F.A.C.

   
   

7. Dr. Cargill timely filed a Notice of Grievance and Request for Hearing pursuant to Rule 6C4-10.010 and, thereafter, the Step 1 hearing was conducted on June 3, 1993, by Dean Richmond. In his determination dated July 20, 1993, Dean Richmond found, "... there is no substantive basis for grievance on the issue of improper process in the termination of Dr. Cargill as Director of the International Language Institute." Dr. Cargill appealed this decision to then Assistant Provost Wright.

   
   

8. In his Step 2 decision, Dr. Wright found the termination or reassignment of Dr. Cargill concerned a substantial interest of the grievant, but she had not met the burden of proof as required under the grievance procedure. He concluded that the recommendation for Dr. Cargill's removal from her position at ILI was consistent with the Board of Regent's rule and that no violation of that rule had occurred, which constituted a denial of her grievance. Dr. Cargill thereafter timely filed her Petition for Relief which forms the basis for this hearing.

   
   

9. Ordinarily, a faculty member's assigned duties include a combination of both teaching and research, and, in addition, some faculty members are assigned administrative duties as a component part of their FTE. Though varying slightly from year to year, Dr. Cargill's assigned duties as FTE professor primarily consisted of teaching two courses and administering the graduate program within the Division of Language and Linguistics as "Director of Graduate Studies" which, though encompassing one third of her FTE, she considered an "administrative assignment." For this directorship, she received a one course release time. Over and above all that were her activities with the ILI.

   
   

10. Dr. Cargill's assignments as a faculty member were recorded on periodic individual assignment of duties forms and activities reports. Her FTE directorship of graduate studies was listed thereon as "advisement." None of the ILI duties was ever included on either form.

11. Up to 1992, the ILI was funded through the auxiliary budget of the School of Continuing Education and Dr. Cargill's ILI performance was evaluated by the head of the College for Continuing Education. Her FTE teaching and graduate student advisement performance was evaluated by the Director of the Division of Modern Languages and Linguistics.

    
    

12. When she was first employed at the University, Dr. Gargill was tendered a standard one year State University System, (SUS), contract for each year of her employment as a professor. This covered her FTE activities only over the nine month regular school year. At no time was she offered or given a SUS contract for her ILI activities. Those activities were compensated for by the periodic issuance of an overload authorization which was signed by Dr. Cargill, the chairperson of the Division, and the Dean for the nine month regular school year. Notwithstanding Dr. Cargill understood the authorization form to be a contract for her services with the ILI, the overload form does not serve as an employment agreement. It merely serves to encumber the funds to be used to pay for the overload upon a showing that the work called for has been accomplished. Dr. Cargill was also given an OPS appointment for her summer term ILI duties when she was assigned no other duties.

    
    

13. Overloads are instructional duties in an extension or continuing education activity which are in excess of a full appointment. They are not administered by the University's personnel department but, in this case, by the School of Continuing Education. They have never been considered as a position through which a person may attain tenure or any other right of continuing employment. To the contrary, the CBA requires overloads be offered "equitably". No notice is required before an individual performing overload duties can be denied further such assignments.

    
    

14. By the same token, an OPS appointment is also temporary. An OPS appointment was used to compensate Dr. Cargill during the summer term because an overload is allowed only when the faculty member is carrying a full load. Since she had no assigned duties during the summer term except those involving the ILI, an overload would not have been the proper vehicle for compensating her for her summer term duties with the ILI. It must be noted here that OPS appointments, like overloads, carry no right of continuing employment and may be terminated without advance notice.

    
    

15. While Dr. Cargill was serving in her FTE position and leading the ILI as well, her overload paid her an amount equal to 20 percent of her faculty salary, and the OPS summer appointment paid her sums in addition to that. During 1991, she was paid approximately $41,000.00 out of the University's

    Expense and General Funds for her services as an FTE faculty member. During the same period, she was also paid approximately $23,000.00 out of the University's Extension Incidental Trust Fund for her ILI activities.

    
    

16. In his October 27, 1992 letter advising Dr. Cargill that her duties with the ILI were being terminated, Dr. Meisels specifically referred to the provisions of Rule 6C-5.130, F.A.C.. She was not given any new duties as a result of or subsequent to her removal from her position with the ILI. Instead, she continued her FTE teaching load and her FTE position as Director of graduate studies within the Division of Modern Language and Linguistics, but was not given an OPS appointment for the 1993 summer term.

    
    

17. Dr. Cargill agrees she could have been relieved of her duties with the ILI for cause or from her FTE position as Director of Graduate Studies without notice or cause. However, she contends, the position with the ILI was an

    administrative assignment from which she could not be removed except for cause or consistent with the provisions of the other pertinent rules. The University does not assert she was removed from her position with the ILI for cause.

    
    

18. It is not disputed that Dr. Cargill's duties, title, and pay in her ILI position gave her added prestige both on and off the University campus. Her removal from that position meant she would no longer have the prestige or receive the pay and as a result, she experienced an immediate substantial pay reduction and claims she was humiliated in front of her students and the community.

    
    

    CONCLUSIONS OF LAW

    
    

19. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter in this case. Section 120.57(1), Florida Statutes.

    
    

20. Dr. Cargill challenges her removal, by the University, from her position as head of the ILI and the resultant loss of the additional income she received because of her performance of those duties. In order to obtain a hearing on the correctness of the University's action, Dr. Cargill must establish that she has a substantial interest in that position. Agrico Chemical Company v. Florida Department of Environmental Regulation, 406 So.2d 478 (Fla. 2DCA 1981), rev. denied, 415 So.2d 1359 (Fla. 1982); United Health, Inc. v. Florida Department of Health and Rehabilitative Services, 579 So.2d 342 (Fla. 1DCA 1991).

    
    

21. The University contends that since Dr. Cargill had no official "appointment" as Director of the ILI and had no contract to formalize her entitlement to that position and compensation therefor which, it claims, could be terminated at any time and for any reason, she must establish she was possessed of a substantial interest in the assignment. The uncontroverted evidence establishes that for over ten years without break, from the inception of the ILI, Dr. Cargill was the sole occupant of the leadership position therein. Her duties involved serving as fiscal officer, and encompassed human resources, quality control, assessment techniques, recruitment of foreign students and staff. Even without a formal contract, it is evident the operation of the ILI bore her imprimatur, and the renewal of the assignment each year, repeatedly and without question, generated in her a bona fide intellectual, professional, and financial interest in its operation and her presence within the ILI framework, if not an entitlement interest.

    
    

22. Because of this, Dr. Cargill contends, she could be removed from that assignment only by one of several means. The first is removal for cause under the provisions of Rule 6C4-10.009. The second is by reassignment to other duties carrying the same pay under the provisions of Rule 6C-5.130; or she could be terminated from the position, with proper notice, under the provisions of Rule 6C4-10.011. The first and last of these, those relating to Chapter 6C4, are pertinent to termination or non-renewal of appointments. Notwithstanding Dr. Cargill's contention that she was appointed to the position of Director of the ILI, the evidence of record no such position existed or exists within the University framework, and she was never "appointed" to such a position, though her activities may have created such an inference in her mind. Her performance of those duties was by virtue of an overload assignment of additional duties for which an authorization was obtained and for which she was paid upon completion.

    That assignment position was neither an established position nor an OPS position. The OPS summer term work was no more than an OPS temporary assignment,

    
    

23. The university contends its removal of Dr. Cargill from the ILI was a reassignment as provided for in Rule 6C-5.130, F.A.C.. This rule reads as follows:

    
    

    1. For purposes of this rule, "academic administrators" are State University System administrators who are employed in positions in the General Faculty classification and pay

       plan, with responsibilities for university-wide academic programs, or for academic programs at the college, school, unit, department, or comparable levels. Examples of the titles into which such positions may be classified are Vice president, Dean, Director, and Chairperson.

    2. Academic administrators serve in their appointments as academic administrators at the pleasure of the president or the president's designee. The president or president's designee may, at any time and at their discretion, reclassify these administrators, or retain them in their current classification but reassign them to other faculty or administrative duties. Such action is not intended to reflect upon the competence, character, or reputation of the academic administrator. If the academic administrator is reclassified or reassigned,

       the salary rate and appointment period may be adjusted to reflect the new responsibilities. Reclassification or reassignment shall not affect the tenure status of tenured faculty members, as provided in ..., or the permanent status of

       employees who have such status in accordance with ....

    3. This rule governs the reclassification or reassignment of academic administrators, notwithstanding any contrary provisions of rule.

       
       

24. It is clear the termination of Dr. Cargill's duties with the ILI was not a termination of an appointment for cause nor was it a failure to reappoint after notice given because she did not hold an appointment to the position she filled and because that position was not an official Directorship to which she could have been appointed. Instead, she was relieved of an assignment to run the ILI for which she had been given the courtesy but not official title of Director. This does not fall within the parameters of Rule 6C-5.130 either, however, since Dr. Cargill's duties with the ILI did not constitute a position in the General Faculty classification and pay plan, notwithstanding the University's attempt to bring it within that rule.

    
    

25. It is clear that the removal of Dr. Cargill as operating head of the ILI was the legitimate result of her supervisors' dissatisfaction with the way the ILI was running and their feeling there was a need for new direction and leadership. This is seen from the phrasing of Provost Meisels' letter of October 27, 1992. While her assignment to those overload duties was terminated immediately, and the salary therefor cut off almost as precipitously, she was

not left unrewarded. By the terms of the Provost's letter, she was, in fact, given a leave of absence with pay for one semester and one summer term at a 1.0 FTE. This would constitute almost a full year off with pay, a not insubstantial benefit.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore:

RECOMMENDED that Dr. Carol J. Cargill's Petition for Relief be denied. RECOMMENDED this 6th day of September, 1994, in Tallahassee, Florida.

ARNOLD H. POLLOCK

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 6th day of September, 1994.

APPENDIX TO RECOMMENDED ORDER

The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case.

FOR DR. CARGILL:

1. Accepted and incorporated herein.

2. - 7. Accepted and incorporated herein.

   1. Accepted.

   2. Accepted.

   3. Accepted and incorporated herein.

   4. Accepted and incorporated herein.

   5. - 17. Accepted and incorporated herein.

1. & 19. Accepted except for use of term, "appointed" which has a special meaning in the law. Correct word should be, "assigned."

   20.	-	22.	Accepted and	incorporated	herein.
   		23.	Accepted.
   24.	-	26.	Accepted and	incorporated	herein.
   27.	&	28.	Accepted.
   29.	-	32.	Accepted.
   33.	&	34.	Accepted and	incorporated	herein.
   35.	-	36.	Accepted and	incorporated	herein.

   FOR THE UNIVERSITY:

   
   

   1. & 2. Accepted and incorporated herein.

3. & 4. Accepted.

1. - 7. Accepted and incorporated herein.

   1. Accepted.

   2. Accepted and incorporated herein.

   3. - 14. Accepted.

      1. Accepted and incorporated herein.

      2. - 19. Accepted and incorporated herein.

20. - 22. Accepted and incorporated herein.

23. & 24. Accepted.

1. - 27. Accepted and incorporated herein.

   1. Accepted.

   2. Not a Finding of Fact but a statement of party position.

   3. Accepted.

COPIES FURNISHED:

Thomas M. Gonzalez, Esquire Thompson, Sizemore & Gonzalez

109 North Brush Street, Suite 200 Tampa, Florida 33602

Henry W. Lavandera, Esquire University of South Florida

4202 East Fowler Avenue, ADM 250

Tampa, Florida 33620-6250

Richard E. Fee, Esquire Glenn, Rasmussen & Fogarty

100 S. Ashley Drive, Suite 1300 Tampa, Florida 33601-3333

Noreen Segrest, Esquire Acting General Counsel University of South Florida ADM 250

4202 East Fowler Avenue Tampa, Florida 33620-6250

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should consult with the agency which will issue the Final Order in this case concerning its rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency which will issue the Final Order in this case.

Docket for Case No: 93-005558

Orders for Case No: 93-005558