STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

INDIRA KHURANA, )

)

Petitioner, )

)

vs. ) CASE NO. 94-2139

)

FLORIDA A & M UNIVERSITY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the above matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Diane Cleavinger on January 31, February 1 and February 2, 1995 in Tallahassee, Florida.

APPEARANCES

For Petitioner: David Brooks Kundin, Esquire

906 Thomasville Road Post Office Box 430

Tallahassee, Florida 32302

For Respondent: Bishop C. Holifield, Esquire

Avery D. McKnight, Esquire Florida A & M University Office of the General Counsel

300 Lee Hall

Tallahassee, Florida 32307 STATEMENT OF THE ISSUES

The issue to be resolved in this proceeding is whether Respondent committed an unlawful employment practice by allegedly retaliating against Petitioner for filing a sexual harassment complaint in violation of Section 760.10(7), Florida Statutes.

PRELIMINARY STATEMENT

This cause arose upon the filing of a Charge of Discrimination with the Florida Commission on Human Relations (Commission) by Petitioner. The Commission conducted an investigation and a Notice of Determination of No Cause was issued on January 20, 1994. On March 22, 1994, the Commission issued an order granting an extension of time to file a Petition for Relief. The order required that Petitioner file and serve the Petition for Relief on or before April 15, 1994.

The Petition for Relief was filed untimely on April 18, 1994. However, the cause was still forwarded to the Division of Administrative Hearings. The Petition for Relief, alleges that retaliatory actions were taken against

Petitioner after she filed a formal written complaint with the Office of Equal Opportunity Programs at Florida Agricultural and Mechanical University (FAMU) about ongoing sexual harassment in Physics Department and a letter regarding retaliatory actions.

At the hearing, Petitioner offered the testimony of six (6) witnesses and presented twenty-five (25) exhibits, twenty-four (24) of which were admitted into evidence, including Dr. Charles Weatherford's deposition. Respondent testified in her own behalf and offered the testimony of five (5) witnesses.

Additionally, Respondent presented thirty (30) exhibits, twenty-nine (29) of which were admitted into evidence, including Dr. Indira Khurana's deposition.

After the hearing the parties submitted Proposed Recommended Orders on May 22, 1995. The parties' Proposed Findings of Fact have been considered and utilized in the preparation of their Recommended Order, except where such findings were irrelevant, immaterial, cumulative, subordinate or not shown by the evidence. Specific rulings on the parties' Proposed Findings of Fact are contained in the appendix to this Recommended Order.

FINDINGS OF FACT

1. Respondent, Florida Agricultural and Mechanical University (FAMU), is a state university located in Tallahassee, Florida. Dr. Frederick S. Humphries is the President at FAMU. Dr. Richard A. Hogg is the Provost and Vice President for Academic Affairs at FAMU.

   
   

2. The University offers a liberal arts education with majors in many areas, including physics. The University also offers masters and doctoral programs, as well as post-doctoral programs. Physics is one of the departments which offers post-doctoral opportunities.

   
   

3. The Physics Department operates under the College of Arts and Science at FAMU. Dr. Aubry M. Perry is the Dean of the College of Arts and Science at FAMU. Dr. Charles A. Weatherford is a Professor of Physics and Chairman of the Physics Department. Neither faculty or staff members of the University can hire Petitioner for employment at FAMU. Such personnel however, could recommend that Petitioner be employed at FAMU. Only Dr. Humphries and Dr. Hogg had authority to hire Petitioner for employment at FAMU and to establish the terms and conditions of that employment.

   
   

4. A breakdown of the courses taught in the Physics Department are as follows. General Physics is a Calculus based physics course for science and engineering majors and is extremely rigorous. The General Physics course is an extremely high visibility course and is the most important course in the Physics Department for which professors have to do the best job. Consequently, the strongest professors are going to teach this course.

   
   

5. College Physics is a non-calculus based course that is taken principally by allied health majors and by biology majors who are not going into graduate biology study. College Physics is no nearly as rigorous as the General Physics course.

   
   

6. Elements of Physics is also non-Calculus based service course required by FAMU to fulfill the requirements of general education. This course is below College Physics and basically requires simple Algebra and Trigonometry. Students enrolled in Elements of Physics are traditionally Pharmacy, Business and Architecture majors.

7. Physical Science is the lowest level course in the Physics Department. This course is a service course for non-science majors. The Physical Science course encompasses several disciplines including physics, chemistry, geology, metorology, astronomy, earth science, and oceanography. The course is non- rigorous and requires very elementary Algebra and Trigonometry skills.

   
   

8. The post-doctoral (post-doc) opportunities offered in the Physics Department are usually ties to grants or contracts for research which the University has received from a third party. The purpose of creating post- doctoral opportunities is to provide an opportunity for doctoral graduates to get experience that will enhance that person's resume and opportunity for getting a job in academia or elsewhere. Post-doc work enables a doctoral graduate to do research and develop research experience in the graduate's chosen filed of physics. Such research associates or adjunct professors are generally at the University under a specific grant or contract which pays that persons salary. In short, the position and money for post-doc come from a specific grant or contract. Therefore, once the grant or contract expires or is terminated the post-doc position expires or is terminated.

   
   

9. Importantly, every grant or contract has a primary investigator (PI) responsible for contract administration and compliance. These PI's are responsible for the ultimate allocation of funds for work or activities which support the research contemplated under a given contract. However, these PI's cannot employ any post-doc, but can only recommend such employment and demonstrate that the position is provided and paid for in the contract or grant for which the PI is responsible.

   
   

10. Relevant to this proceeding, were one contract and one grant for research between FAMU and the United States Air Force and FAMU and the United States Army, respectively.

    
    

11. Petitioner, Indira Khurana, is a native of India. She received her Bachelors and Masters Degrees from Meerut University in India. In 1988, Petitioner received a Ph.D. in Physics from Roorkee University in India, specializing in Anatomic and Molecular Physics. After she had received her Ph.D., she worked as post-doctoral student for two (2) years and then lectured at Birla Institute of Technology and Science in India during the period of February, 1990, to July 1991. Between July, 1991, and January, 1992, Petitioner was with her husband in Vancouver, Canada and did not work.

    
    

12. During Petitioner's stay with her husband in Vancouver, Petitioner was looking for another post-doc position in physics. In October of 1991, Petitioner wrote a letter to Dr. Ashok Jain applying for employment at FAMU and enclosed here curriculum vitae. Dr. Jain was then a Professor of Physics in the Physics Department on a tenure track.

    
    

13. Petitioner wrote Dr. Jain because she saw a paper in the library that was published by Dr. Jain and Dr. Baluga and was interested in the work they were performing. Petitioner did not know Dr. Jain before coming to FAMU. However, she did know Dr. Baluga.

    
    

14. In 1991, Dr. Jain was the Principal Investigator (PI) on a U.S. Air Force contract and a co-PI on a U.S. Army grant. In a letter dated October 8, 1991, Dr. Jain responded to Petitioner's letter and thanked Petitioner for her initial letter of inquiry and the enclosed vitae. Dr. Jain did discuss in the letter the possibility of a post doctoral position in April-May, 1992, or

    earlier. Dr. Jain did not mention in his letter that Petitioner would be employed for a period of two years at FAMU and indicated that Petitioner would be recommended for the position. Dr. Jain did not have authority to hire Petitioner for employment at FAMU. Dr. Jain could only recommend that Petitioner be hired at FAMU.

    
    

15. Petitioner testified that later, in November of 1991, she received two

    (2) letters from Dr. Jain in the same envelope. The envelope was postmarked on November 7, 1991. One letter was dated November 1, 1991, and was written to Petitioner from Dr. Jain. The other letter was dated November 12, 1991, addressed to Dr. Eva C. Wanton, Dean, School of General Studies, FAMU, from Dr. Charles A. Weatherford, Professor and Chairman, Physics Department, College of Arts and Science, FAMU. Petitioner testified that it takes four (4) to five (5) days for mail to reach Vancouver, Canada, from Tallahassee, Florida, and that because the envelope was postmarked November 7, 1991, the two (2) aforementioned letters probably were received by her on November 12, 1991. Petitioner asserted that she did not discuss the contents of either of the letters with Dr. Jain.

    
    

16. In the letter dated November 1, 1991, Dr. Jain indicated that a Research Associate Fellowship position was available which would be funded by the U.S. Air Force contract and U.S. Army grant. The amount of the fellowship was listed to be $23,000 for twelve (12) months. Dr. Jain did not mention in the November 1, 1991, letter that Petitioner would be employed with FAMU for a period of two (2) years. Dr. Jain did ask that Petitioner indicate whether she would accept the fellowship in writing as soon as possible and also indicate when she could join the Physics Department at FAMU.

    
    

17. The November 12, 1991, letter to Dr. Wanton from Dr. Weatherford was for the sole purpose of supplying information to Dr. Wanton's office to begin the process of applying for a J1 visa for Petitioner. A J1 visa would permit Petitioner to enter the United States as long as she worked in a post-doc position at FAMU. The letter was prepared by Dr. Jain for Dr. Weatherford's signature and eventual approval by Dr. Perry. Dr. Weatherford signed the letter without seriously examining its contents. However, the evidence was clear that the letter was not an offer of employment to Petitioner or intended to be part of an employment contract involving Petitioner.

    
    

18. Dr. Eva C. Wanton, Dean of School of General Studies, serves as the Responsible Officer for the Visiting Scholars Program at FAMU. As the Responsible Officer, Dr. Wanton prepares forms to invite scholars, students, and researchers to FAMU from foreign countries. Dr. Wanton has been the Responsible Officer at FAMU for twenty (20) years. Dr. Wanton's office assisted the Physics Department in obtaining a J1 visa for Petitioner.

    
    

19. In order to obtain a J1 visa from Dr. Wanton's office, a letter must:

    (1) be submitted from the person wanting to invite the scholar, student or researcher to FAMU; (2) be signed by the dean of college or school inviting the individual; and (3) contain certain information that Immigration requires on the IAP-66 form such as place of birth, date of birth, the person's title in the country the individual is coming from. The IAP-66 forms are kept in a locked location in Dr. Wanton's office and are serially numbered for tracking purposes. Such security is necessary because the forms if stolen can be used by any person to gain entry to the United States.

    
    

20. Once this letter is submitted in the manner described above, Dr. Wanton's office then can complete the IAP-66 form which is necessary to obtain a J1 visa. The November 12, 1991, letter met these criteria.

21. The IAP-66 form is issued to the individual prior to the beginning of employment and is used to bring the individual into the United States. The IAP-

    66 form is an immigration document not an employment document or contract. Dr. Wanton's office can only process and issue initial IAP-66 forms for a one (1) year period. The forms can be renewed up to three (3) years. However, Dr. Wanton's office only renews the form on an annual basis. One reason for the annual issuance and renewal of the IAP-66 forms is that FAMU only receives funding for research contracts and grants one year at a time.

    
    

22. Dr. Wanton's office fills in the information on the IAP-66 form based on the letter requesting the J1 application. Dr. Wanton testified that the information contained in the request letter is used in filling out the IAP-66 form except for the employment period.

    
    

23. Dr. Wanton also testified that the copy of the November 12, 1991, letter which Petitioner allegedly received but did not carry the actual signature of Dr. Perry, Dean of the College of Arts and Science, would not have been accepted by her office and would have been returned to Dr. Weatherford to obtain Dr. Perry's signature. The original version of the November 12, 1991, letter with Dr. Perry's actual signature does not indicate that he approved the contents of the letter but that he approved Petitioner to be considered for a J1 visa. After the IAP-66 form was completed for Petitioner, the form was picked up by someone from the Physics Department. The Physics Department was responsible for getting the IAP-66 form to Petitioner. The Physics Department did not receive the original or a copy of the November 12, 1991, letter from Dr. Wanton's office. The original letter was retained by Dr. Wanton's office.

    
    

24. Petitioner explained that she though she was entitled to two (2) years of employment based on the copy of the November 12, 1991, letter from Dr. Weatherford to Dr. Wanton but which was not signed by Dr. Perry. However, Petitioner provided no substantial, competent evidence that she received the copy version of the letter dated November 21, 1991, from Dr. Weatherford to Dr. Wanton absent Dr. Perry's signature in the envelope postmarked November 7, 1991. Petitioner's assertion that she received that letter as previously indicated is not credible given the date on the letter, the mail time between Tallahassee and Vancouver the postmark of November 7, 1991, on the envelope and the fact that the November 12, 1991, letter was time-stamped received in the School of General Studies on November 13, 1991, at 1:33 p.m.

    
    

25. Petitioner did received a copy of the version of the November 12, 1991, letter containing Dr. Perry's signature from Dr. Wanton's office in April of 1992.

    
    

26. In any event, Petitioner, was under the mistaken impression that her research fellowship would be for two years. That impression came solely from Dr. Jain, who FAMU learned after the events of this case occurred had a tendency to overstate his authority and to think he had more authority than he, in fact, had.

    
    

27. On the other hand, Petitioner acknowledged that she neither signed nor received a formal employment contract with FAMU that covered a period of two (2) years. Petitioner's counsel also stipulated to the fact that Petitioner had no formal employment contract with FAMU for a period of two (2) years. Petitioner testified that neither Dr. Humphries nor Dr. Hogg made her an offer of employment for a period of two (2) years.

28. Further, Petitioner indicated that she provided a response to Dr. Jain's letter to her dated November 1, 1991, and to Dr. Weatherford's letter to Dr. Wanton dated November 12, 1991. Petitioner claimed that she sent two (2) letters of acceptance but that she did not have a copy of the first letter of acceptance. Petitioner also claimed that her letter to Dr. Jain, dated November 16, 1991, was the second letter of acceptance. In the November 16, 1991, letter, Petitioner indicated that she would fill the post-doc position in the first week of January, 1992. The letter did not mention a term of employment.

    
    

29. No substantial, competent evidence was presented to support Petitioner's allegation that she had indeed sent two (2) letters of acceptance.

    
    

30. Petitioner received an IAP-66 form from FAMU that covered a one year employment period of January 1, 1992, to December 31, 1992. Petitioner had to have this form and information to enter into the United States. The IAP-66 form listed the amount of Petitioner's salary to be $23,000.00 per year.

    
    

31. Petitioner arrived in the United States on January 7, 1992, and started work at FAMU on the following day.

    
    

32. Petitioner was issued and signed four (4) different formal employment contracts to cover the period of employment from January 7, 1992, to December 31, 1992, as a Research Associate. The aforementioned contracts expired by virtue of their own terms. These formal employment contracts had the appropriate approval signature of Vice President of Academic Affairs and Provost Richard Hogg, and recommending signatures of Dr. Franklin Hamilton, Dr. Aubrey Perry and Dr. Charles Weatherford. Petitioner was an Other Personal Services (OPS) employee who was paid $15.00 an hour. Petitioner also signed the FAMU Employment Eligibility Verification 1-9 Form, which stated that Petitioner's employment eligibility expired on December 31, 1992. As acknowledged by Petitioner and stipulated to by Petitioner's counsel, Petitioner received no benefits at FAMU other than her paycheck while employed.

    
    

33. The evidence was clear that Petitioner was fully aware that FAMU's obligation to employ her ceased on December 31, 1992, even though she may have initially hoped for a longer term of employment before she came to the United States.

    
    

34. On August 31, 1992, Petitioner filed a written complaint with the Office of Equal Opportunity Programs at FAMU. At that time the director of the Office of Equal Opportunity Programs at FAMU, was Ms. Mary R. Vaughn. Petitioner alleged that she had been sexually harassed by Dr. Jain. When

    Petitioner filed her complaint, she received from Ms. Vaughn a copy of Rule 6C3- 10.103, Florida Administrative Code, Discrimination and Harassment Complaint Procedures. Ms. Vaughn also provided Petitioner with FAMU's Policy Statement on Non-discrimination. FAMU's Policy Statement on Non-discrimination was also posted in the Physics Department and observed by Petitioner.

    
    

35. Subsequently, Petitioner wrote a letter dated October 7, 1992, to Ms. Vaughn alleging that "retaliatory actions" had been taken against her since she had filed her complaint against Dr. Jain. The two (2) "retaliatory" issues mentioned in Petitioner's letter concerned her mail-slot and library photocopy card both of which had been taken away from her. The letter mentioned also the issues of the continuation of Petitioner's formal employment contract beyond December, 1992, that a salary balance of $600.00 was due to her, and that Dr. Jain had fraudulently charged $21.66 to her husband's telephone number in Vancouver, Canada.

36. In conducting the investigation of Petitioner's complaint of sexual harassment and retaliation, Ms. Vaughn prepared one (1) report and submitted that report to Dr. Humphries pursuant to Rule 6C3-10.125, Florida Administrative Code. Ms. Vaughn's report addressed Petitioner's sexual harassment complaint and retaliation complaint. Ms. Vaughn found that Dr. Jain had sexually harassed Petitioner. She did not find that any retaliatory action had been taken by anyone in the Physics department other than Dr. Jain regarding her library card. Ms. Vaughn made several recommendations including that: (1) disciplinary action be taken against Dr. Jain in the manner of formal disciplinary action and that he be non-renewed as a professor; (2) Dr. Weatherford assume supervisory responsibility of Petitioner; (3) Petitioner's employment as a Research Associate be continued from January 1, 1993 to June 18, 1993, at a rate of

    $15.00 per hour; (4) Petitioner be provided with appropriate documentation to obtain a work visa extension through June 18, 1993; (5) Petitioner be re-issued a library photocopy card; (6) Petitioner be reassigned a mail-slot in the Physics Department; (7) Petitioner be paid the sum of $600.00; and (8) Petitioner pursue external remedies available to her by her telephone service carrier for appropriate credit to her personal telephone account.

    
    

37. Ms. Vaughn prepared and signed a letter for Dr. Humphries dated December 16, 1992, which indicated that the University had determined that Petitioner's sexual harassment complaint had merit. Before signing the letter, Ms. Vaughn discussed the contents of the letter with Dr. Humphries. Dr. Humphries adopted the aforementioned recommendations contained in Ms. Vaughn's report in an attempt to be "more than fair" to Petitioner even though continuation of employment was not required. The December 16, 1992, letter outlines the actions that were taken to provide further remedy and to settle of Petitioner's complaint as based upon Ms. Vaughn's recommendations including the non-renewal of Dr. Jain.

    
    

38. FAMU decided to non-renew Dr. Jain rather than terminate him because the process is easier than firing. Dr. Jain denied the sexual harassment and contested his non-renewal and more than likely would have contested any dismissal for the same reasons. FAMU's decision was upheld through the appeal including arbitration. However, irrespective of FAMU's decision to no-renew Dr. Jain as opposed to dismissal, Dr. Jain would have remained at FAMU pending the outcome of his employment litigation. In short, the fact that Dr. Jain remained at FAMU for a short time while Petitioner was still at FAMU was not a retaliatory action on the part of FAMU and FAMU attempted to alleviate the situation by placing Dr. Weatherford in a supervisory position over Petitioner.

    
    

39. Dr. Weatherford wrote a letter evaluation of Petitioner, dated November 2, 1992, which was generated at Ms. Vaughn's request. In the letter, Dr. Weatherford evaluated Petitioner's work-performance on the U.S. Air Force contract for the year of 1992. This letter was based on an interview with Petitioner conducted by Dr. Weatherford to determine her knowledge of electron molecule scattering. Both Dr. Weatherford and Petitioner stated that the letter was a fair evaluation. The letter did factor into Ms. Vaughn's recommendation to extend Petitioner's employment on a review of the U.S. Air Force contract under which Petitioner was hired. The Army grant had expired. The U.S. Air Force contract required that technical effort must be completed no later than June 18, 1993. Petitioner was providing technical effort on the U.S. Air Force contract. Therefore, it was appropriate for Petitioner to continue her employment under that contract until its termination date on June 18, 1993. The fact that Petitioner was not extended further was not retaliatory since Petitioner was never entitled to employment beyond the term of the contracts she

    signed with FAMU and certainly not beyond the term of the remaining Air Force contract under which she had been employed in a post-doc capacity. There is simply no adverse employment action when an employment contract expires by its own terms.

    
    

40. Petitioner's employment with FAMU was extended from January 1, 1993, to June 18, 1993. Petitioner also received a J1 visa for this period of time.

    
    

41. Furthermore, Petitioner provided no substantial, competent evidence that Dr. Jain had authority to bind FAMU to employ Petitioner for a period of two (2) years. Dr. Jain and Dr. Weatherford could only recommend Petitioner for employment at FAMU. Petitioner also recognized that Dr. Jain alone could not hire her and that Dr. Jain had to get approval from others before she could be hired. Consequently, Petitioner suffered no adverse employment action because once Petitioner's formal employment contract came to an end the employment relationship between FAMU and Petitioner ceased to exist.

    
    

42. Petitioner provided no competent, substantial evidence that she was retaliated against because her mail-slot was taken away. The mail-slot was not a guaranteed coemployment benefit, but was provided for the benefit of the University in its mail distribution system. In addition, the mail-slot was taken away. The mail-slot was not a guaranteed employment benefit, but was provided for the benefit of the University in its mail distribution system. In addition, the mail-slot issue was cured by Dr. Weatherford's letter dated November 5, 1992, to Petitioner indicating that her mail-slot had been reassigned due to a mail-slot shortage. The shortage was not shown to be pre- textual and is a valid reason for distributing scarce University resources. Additionally, the evidence was clear that Petitioner had indicated to the Physics Department secretary that she was worried that Dr. Jain was reading or tampering with her mail. The secretary volunteered to keep Petitioner's mail locked in her desk drawer instead of in a mail slot. Petitioner acquiesced in this action and ceased to use her mail slot for a short time. After her disingenuous complaint regarding the lack of a mail slot, Petitioner acknowledged that her mail slot was returned. Given these facts, the evidence was clear that no retaliatory action occurred in regards to Petitioner not having a mail slot for a short period of time.

    
    

43. There was no substantial evidence which demonstrated that the remaining allegations of retaliatory actions contained in Petitioner's letter to Ms. Vaughn occurred because of retaliation on the part of FAMU. The $600.00 shortage in pay was not due to any retaliation and was paid. Admittedly, Dr. Jain attempted to reduce Petitioner's salary when she would not comply with his sexual requests. However, these efforts were part of the original sexual harassment complaint, were stopped and cannot be attributed to FAMU. As testified to by Petitioner and stipulated to by Petitioner's counsel, Petitioner's salary was not reduced while employed at FAMU. Petitioner's bi- weekly salary was $1,200.00 for the period of January 1, 1992, to June 18, 1993. Petitioner was paid $45,720.00 while employed at FAMU, which is $280.00 short of what she would have been paid if she had worked two (2) years for $23,000.00 for twelve (12) months. Petitioner also admitted to the fact that she was paid more money than originally agreed upon after her arrival to FAMU and that she was paid more money than $23,000.00 for twelve (12) months. The retaliation by Dr. Jain involving the phone call was personal retaliation on his part and was neither sanctioned nor condoned by FAMU and is not attributable to FAMU. Moreover, these issues were addressed and resolved in FAMU's handling and resolution of Petitioner's complaints to Ms. Vaughn. FAMU took appropriate action for an employer who has had such complaints brought to its attention and

    took appropriate steps to remedy the situation once it was aware of Dr. Jain's activity. No retaliatory action can be attributed to FAMU.

    
    

44. In fact, Petitioner, wrote a letter dated January 4, 1993, to Ms. Vaughn. In that letter, Petitioner stated "Thank you very much for settling the matter and helping me in every way. I wish you a very happy new year." The matter that Ms. Vaughn had settled with reference to Petitioner was the sexual harassment complaint and the retaliation complaint. After January 4, 1993, Petitioner did not indicate to Ms. Vaughn that she was not satisfied with the decision rendered as a result of her sexual harassment complaint and retaliation complaint. Other than the aforementioned complaints, Petitioner stated that she did not file any formal complaints with Ms. Vaughn's office even though she was aware of the process.

    
    

45. Petitioner wrote Dr. Weatherford a letter dated January 13, 1993, and indicated that she was interested in filling any openings of regular physics faculty positions available in the Fall of 1993. Petitioner admitted to the fact that she did receive a reply from Dr. Weatherford regarding her letter dated January 13, 1993, in which she requested consideration for a regular faculty position.

    
    

46. Later, Petitioner met with Dr. Weatherford allegedly said that "University does not want to hire you." However, Petitioner provided no substantial, competent evidence that she was retaliated against because of an alleged statement by Dr. Weatherford. Petitioner's assertion is not credible given the testimony by Dr. Weatherford and Ms. Sonja Richardson, the Physics Department secretary, that the phrase "university does not want to hire you" is not consistent in the manner in which Dr. Weatherford speaks and was apparent from listening to Dr. Weatherford at hearing. Additionally, Dr. Weatherford denies making such a statement.

    
    

47. Subsequently, Petitioner wrote Dr. Weatherford another letter dated April 2, 1993, stating among other things that she wanted to be considered for an adjunct faculty position in the Fall of 1993, and requested that her Research Associate assignment be extended until the beginning of Fall of 1993.

    
    

48. In a letter dated April 5, 1993, Dr. Weatherford informed Petitioner that the regular physics faculty positions had not been released by the administration of FAMU and that, if those positions were released, she would be considered for such a position. Dr. Weatherford also explained that Petitioner's Research Associate position could not be extended beyond June 18, 1993. Dr. Weatherford further stated that Petitioner would be considered for an adjunct position for the Fall Semester of 1993.

    
    

49. Petitioner admitted to the fact that she did receive Dr. Weatherford's letter dated April 5, 1993, and the he did in fact respond to her letter dated January 13, 1993.

    
    

50. Petitioner testified that she taught for three (3) semesters at the Birla Institute of Technology and Science in India beginning February of 1991. While at Birla, Petitioner taught electronics, mathematical physics, optics and rail motion, physical science, and had three (3) labs. During her employment at FAMU, Petitioner testified that she taught two (2) labs in the Spring of 1992, and one (1) course and one (1) lab in the Fall of 1992, and two (2) labs in the Spring of 1993. Petitioner explained that she taught College Physics I and II, and Physical Science Lab repeatedly. Petitioner noted that there was a difference between a course and a lab. Petitioner admitted that the courses and

    labs she taught were lower level Physics. Petitioner's teaching experience only spanned six (6) semesters.

    
    

51. In March of 1993, Dr. Robin Kennedy filled a tenure-track position in the Physics Department. Dr. Kennedy was a former post-doc of Dr. Jack Crow who is the Director of the High Magnetic Field Laboratory. Dr. Kennedy had been at FAMU for at least three (3) years prior to March of 1993. While at FAMU, Dr. Kennedy worked both as a post-doc and adjunct instructor. Furthermore, Dr. Kennedy established FAMU's Condensed Matter Laboratory.

    
    

52. Petitioner introduced no evidence or testimony that she applied for this position. Furthermore, Petitioner failed to provide any substantial, competent evidence that she was more qualified than Dr. Kennedy to fill this position or that she suffered retaliation by not being hired to this position.

    
    

53. In the Fall of 1993 no regular faculty positions were available. Petitioner provided no testimony or evidence to demonstrate otherwise.

    
    

54. In the Fall of 1994, three (3) regular faculty members were hired including Dr. Mogus Mochena, Dr. Edsel Ammons and Dr. Marion Encinosa. Dr. Mochena was a post-doc at FAMU for at least a year and a half. Dr. Mochena worked part of his time directly with Dr. Weatherford. Dr. Mochena worked part of his time directly with Dr. Weatherford. Dr. Mochena taught as a Graduate Assistant at the University of California, Davis. Dr. Mochena taught General Physics at FAMU.

    
    

55. Dr. Ammons has taught approximately twenty (2) years, with an extensive background in education. Half of Dr. Ammons twenty (2) years of teaching has been as a Ph.D. Dr. Ammons came for Ohio State University and was a post-doc with Dr. Ken Wilson. Dr. Wilson is a Nobel Prize winner. Dr. Ammons was recommended highly by Dr. Wilson. Dr. Ammons also had a favorable recommendation from Dr. Howard Isenburg of the National Science Foundation.

    
    

56. Dr. Encinosa taught at FAMU in the early 1980's for three (3) or four

    (4) years and then returned in the late 1980's. By 1994, Dr. Encinosa had been at FAMU for some five (5) or six (6) years. Dr. Encinosa was and is an outstanding teacher. Because of his ability, he and Dr. Michael Threapleton were the only adjuncts who were allowed to teach a senior level physics course. The senior level physics course is above General Physics in course difficulty for teaching. While at FAMU, Dr. Encinosa has also taught Quantum Mechanics, Nuclear Physics, Statistics and an honors section of General Physics. During the Fall of 1993, Dr. Encinosa was a Visiting Assistant Professor.

    
    

57. Petitioner introduced no evidence or testimony that she applied for those positions. Furthermore, Petitioner provided no substantial, competent evidence that she was more qualified than Dr. Mochena, Dr. Ammons or Dr. Encinosa to fill those positions, or that she suffered retaliation by not being hired to those positions.

    
    

58. In hiring individuals to adjunct positions, Dr. Weatherford testified that he has to make an estimate, probable a month or two (2) months before each semester starts of what courses will be offered in the Physics Department. Individuals hired to adjunct positions are OPS employees. Providing such an estimate is complicated by the fact that FAMU and FAMU/FSU Engineering School continue to expand at a tremendous rate. Another factor that Dr. Weatherford has to consider is that he does not know, initially, how much money will be available to hire the OPS adjunct instructors. Dr. Weatherford also does not

    know what classes will materialize because class offerings are determined by the demand of the students taking the class or classes. Dr. Weatherford sends his estimates to Dr. Perry, Dean for the College of Arts and Sciences, who either accepts or rejects the estimate.

    
    

59. Once a schedule of courses is finally completed and accepted, Dr. Weatherford explained that he has to get instructors aligned for the adjunct positions. Individuals are required to fill out formal applications forms and apply for the positions. A curriculum vitae is not an appropriate substitute for completing the formal application and is only a supporting document. Sometimes the paperwork has been completed and people do not get paid because the classes did not make. There have also been times when individuals have been selected to teach a course but cannot be found once classes are started. Consequently, the process in hiring adjunct instructors to teach in the Physics Department is precarious, at best. If Petitioner had applied for an adjunct instructor position, her employment could not have been verified until the projected need for a course or courses had been sufficiently determined.

    
    

60. For the Summer Semester of 1993, Dr. Snezana Dalafave, Dr. Peter William and Dr. Mario Encinosa were hired as adjunct instructors to teach in the Physics Department. Regular faculty members have first dibs on adjunct instructor position and were also hired to teach during the Summer of 1993.

    
    

61. Dr. Dalafave had been an adjunct instructor for at least a year. Dr. Dalafave was teaching about fourteen (14) to fifteen (15) contact hours. Fourteen (14) to fifteen (15) contact hours is considered full time.

    
    

62. Dr. William taught as an adjunct for the first time at FAMU in the Fall of 1992. Before coming to FAMU, Dr. William had post-doc experience and had been working several years at the Super Computer Research Institute (SCRI). Dr. William received very high recommendations of the director of SCRI.

    
    

63. Petitioner provided no substantial, competent evidence that she was more qualified than Dr. Dalafave, Dr. William, Dr. Encinosa or other regular faculty members to be hired as an adjunct instructor in the Physics Department for the Summer of 1993, or that she suffered retaliation by not being hired to any of these adjunct instructor positions were available after June 18, 1993, for the Summer Semester of 1993.

    
    

64. Seven (7) adjunct instructors were hired in the Fall of 1993. Not all of the post-docs were Ph.D. holders but the majority of them were. The adjunct instructors hired were Dr. Salah Aziz, Dr. Mario Enciosa, Ms. Allison Haydel (Ph.D. student at FSU), Dr. Snezana Dalafave, Dr. Romision Nair, Dr. Z. Xiexu, and Dr. Michael Threapleton. All of these individuals had taught at FAMU in the Physics Department before the Fall of 1993 and had more teaching experience than Petitioner. Dr. Dalafave had taught full time for a full year at FAMU. Dr. Xiexu and Ms. Haydel had taught at FAMU for two (2) years. Dr. Aziz had four

    (4) years teaching experience at FAMU. Dr. Nair had taught at least five (5) years at FAMU. Dr. Threapleton had been teaching for five (5) years at FAMU. Dr. Encinosa had taught more than five (5) years at FAMU. None of the adjunct instructors who were hired in the Fall of 1993 were less qualified than Petitioner.

    
    

65. Petitioner provided no substantial, competent evidence that she was more qualified than Dr. Aziz, Dr. Encinosa, Ms. Haydel, Dr. Dalafave, Dr. Nair, Dr. Xiexu or Dr. Threapleton as an adjunct instructor in the Physics Department

    for the Fall of 1993, or that she suffered retaliation by not being hired to any of these adjunct instructor positions.

    
    

66. In sum, Petitioner presented no substantial, competent evidence that she was more qualified or senior than others who were hired to fill an adjunct or regular faculty position in the Physics Department in 1993 or 1994.

    
    

67. Petitioner provided no substantial, competent evidence that Dr. Weatherford retaliated against her by accusing her of making international personal telephone calls from the Physics Department. The alleged accusation occurred in a November 2, 1992, letter from Dr. Weatherford to Ms. Vaughn. The letter was generated at the request of Ms. Vaughn for Dr. Weatherford to respond to Petitioner's letter of October 7, 1992, complaining of retaliation over phone calls by Dr. Jain charged to her husband. In order to respond, Dr. Weatherford reviewed the Department's phone records and noted many calls to the Vancouver area. The letter does mention Dr. Weatherford's concern about telephone calls made to Vancouver, the letter is not accusatory in nature. Furthermore, Petitioner admitted that she had made some personal telephone calls from the Physics Department and would reimburse FAMU for those charges. Petitioner also agreed that Dr. Weatherford's concerns were founded. Given these facts, no retaliation can be inputted to Dr. Weatherford and FAMU regarding alleged accusations of improper phone calls.

    
    

68. Finally, Petitioner provided no substantial, competent evidence that she was retaliated against because she "was not allowed to attend an academic meeting at Reno." In fact, Petitioner testified that she could have gone to Reno, Nevada, if she had secured funding to cover the expenses of her trip or had paid for the trip herself. In short, the Petitioner was not prevented from going to Reno, Nevada and attending the conference. Petitioner's assumption that her trip to Reno would be funded through some grant or contract is unfounded especially when Petitioner did not even know whether funds were available at all to cover the expenses of such a trip. Dr. Weatherford testified that when Petitioner asked him about going to Reno he responded that he did not have access to funds to pay for her trip. As indicated by Petitioner in her testimony, attending academic meetings was not part of the employment agreement that she had with FAMU and was not a benefit of employment. Additionally, the lack of funds is a legitimate reason not to send someone to Reno, Nevada for an academic conference.

    
    

69. Although Petitioner stated that she did not get a reference letter from Dr. Weatherford, Petitioner did list Dr. Weatherford as a reference on her Curriculum Vitae. Dr. Weatherford testified that he never wrote any letters of recommendation for Petitioner because she never asked him to do so. Petitioner failed to provide any substantial, competent evidence to rebut Dr. Weatherford's testimony.

    
    

70. Petitioner, however, did receive a letter of recommendation from Ms. Vaughn, Executive Assistant to the President and Director of FAMU Equal Opportunity Programs per Petitioner's written request. Petitioner acknowledged that Ms. Vaughn gave her a good reference letter.

    
    

    CONCLUSIONS OF LAW

    
    

71. The division of Administrative Hearings has jurisdiction over the substance of and the parties to this proceeding. Section 120.57(1), Florida Statutes.

72. Pursuant to Rule 60Y-4.016(1), Florida Administrative Code, the issues before the Division of Administrative Hearings currently are limited to those issues raised in the Petition for Relief. As a finder of Fact, the Hearing Officer may not rule upon those issues, which are outside of the record and beyond the scope of the hearing. See Sanders v. Bureau of Crimes Compensation,

    474 So. 2d 410 (Fla. 5th DCA 1985); Brown v. Broward Minority Builders Coalition, Inc., 431 So. 2d 230 (Fla. 1st DCA 1983); and Pompano Roofing Company, Inc. v. O'Neal, 410 So. 2d 971 (Fla. 1st DCA 1982).

    
    

73. Section 760.10(1), Florida Statutes, makes it unlawful to discriminate against a person on the basis of race, color, religion, sex, national origin, age, handicap, or marital status. Federal case law dealing with Title VII of the Civil Rights Act of 1964, as amended, is applicable in construing Chapter 760, which was patterned after Title VII. See Florida Dept. of Community Affairs v. Bryant, 586 So. 2d 1205 (1st DCA 1991).

    
    

74. Petitioner has not alleged that FAMU discriminated against her in violation of Section 760.10(1), Florida Statutes.

    
    

75. Petitioner has, without any reference to Chapter 760, Florida Statutes, alleged that FAMU has taken retaliatory actions against her in a discriminatory manner. Presumably, Petitioner is relying upon Section 760.10(7), Florida Statutes, which provided that it is an unlawful employment practice for an employer:

    
    

    to discriminate against any person has opposed any practice which is an unlawful employment practice under this section or because that person has made a charge, testified, assisted, or participated in

    any manner in an investigation, proceeding, or hearing under this section.

    
    

76. In McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), the United States Supreme Court established an allocation of the burden of proof, the requirements for a prima facie case of discrimination and the order for the presentation of proof in Title VII discriminatory treatment cases. In such a case, the employee must first establish by a preponderance of the evidence a prima facie case of discriminatory treatment. See Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981). Under the McDonnell Douglas formula, to establish a prima facie case, the employee must prove (1) membership in a protected group; (2) that the employee was qualified for the position sought; (3) that the employee applied and was not hired for the position sought; and (4) that the position remained open and was ultimately filled by someone from outside of the employee's protected group.

    
    

77. Establishment of the prima facie case creates a presumption that unlawful discrimination occurred. See Burdine, 450 U.S. at 254. This presumption places upon the employer the burden of producing an explanation to rebut the prima facie case. This has generally been described as articulating a nondiscriminatory version of the action complained. Burdine, supra. Once the employer articulates a nondiscriminatory reason for the employment action taken, the employee has an opportunity to demonstrate that the employer's articulated reason is, in fact, a pretext for unlawful discrimination. Thus, the McDonnell Douglas presumption shifts the burden of production to the employer but the ultimate burden of persuading the trier of fact that intentional discrimination occurred remains at all times with the employee. See, Burdine, supra.

78. Recently, the United States Supreme Court revisited the McDonnell Douglas scheme and the significance of the shifting burden of production relative to the ultimate burden of persuasion in St. Mary Honor Center v. Hicks,

    113 S. Ct. 2742 (1993). In that case, the Supreme Court notes that once the employer in a Title VII discriminatory treatment case has succeeded in carrying its burden of production regarding a legitimate nondiscriminatory reason for the challenged action, the McDonnell Douglas framework, along with its presumptions and burdens, is no longer relevant. The employer's production whether persuasive or not requires the trier of fact to proceed to the ultimate question of whether the employee has proven that the employer intentionally discriminated against the employee for the unlawful basis alleged. The employee continues to bear the burden of persuading the trier of fact as to the ultimate fact of discrimination even though the trier of fact may conclude that the employer's proffered reason is unpersuasive or even contrived.

    
    

79. Because the employer has the burden of production and not one of persuasion, which remains with the employee, the employer is not required to persuade the trier of fact that its decision was actually motivated by the reason given, but rather must produce a legitimate, nondiscriminatory articulated reason. If the employee satisfies that burden of production, the fact finder must be persuaded by the employee that the proffered reason was really a pretext for intentional discrimination and that burden may be satisfied by showing directly that a discriminatory reason more likely than not motivated the decision or, indirectly, by showing that the proffered reasons are not worthy of belief. See Dept. of Corrections v. Chandler, 582 So. 2d 1183 (1st DCA 1991).

    
    

80. Similarly, in cases involving allegations of retaliation, the employee bears the initial burden of establishing that the complained of conduct resulted because of the employee's prior assertion of protected rights. If the employer articulates legitimate business reasons for its decisions which are not pretextual, the conduct is no retaliatory and, therefore, would not constitute an unlawful employment practice under Section 760.10, Florida Statutes.

    
    

81. Petitioner has not alleged that she was discriminated against because of her involvement in any "investigation, proceeding, or hearing under this section." Therefore, it is assumed that the retaliatory action allegedly taken by FAMU against Petitioner was because she had "opposed any practice which is an unlawful employment practice under this section. . ."

    
    

82. In order for Petitioner to prevail, she was required to first present a prima facie case that (a) she was engaged in a statutorily protected activity;

    (b) that she suffered an adverse employment action; and (c) that a causal connection between a and c exists. Meeks v. Computer Associates Intern, 15 F. 3d 1013 (11th Cir. 1994); Canino v. EEOC, 707 F. 2d 468, (11th Cir. 1983).

    
    

83. An "adverse employment action" is defined to be "ultimate employment decisions" which include "hiring, granting leave, discharging, promoting and compensating." PaQe v. Bolger, 645 F. 2d 227, 233 (4th Cir. 1981); Ward v. John Hopkins University, 861 F. Supp. 367, 377 (D. Md. 1994).

    
    

84. Petitioner did engage in statutorily protected activity when she filed here formal complaint of sexual harassment on August 31, 1992, and her letter regarding retaliatory activities dated October 7, 1992.

85. Petitioner did prove that she is within a protected class based on her opposition to an alleged "unlawful employment practice."

    
    

86. In her letter dated October 7, 1992, the only two (2) "retaliatory actions" mentioned by Petitioner concerned her mail-slot and library photocopying card being taken away from her. Petitioner, however, failed to prove that those "retaliatory actions" were adverse employment actions that were caused by her formal complaint of sexual harassment. Furthermore, those two (2) issues were cured as indicated in Dr. Weatherford's letter dated November 5, 1992, and Dr. Humphries letter dated December 16, 1992.

    
    

87. In the Petition for Relief, Petitioner stated that her "Research Associate Fellowship" in the Physics Department at FAMU was curtailed in "retaliation" for her filing a complaint against Dr. Jain about ongoing sexual harassment. Petitioner, however, stated in her letter dated October 7, 1992, that the extension of her formal employment contract beyond December 31, 1992, was an unresolved issue.

    
    

88. Petitioner failed to prove that the November 12, 1991, letter from Dr. Weatherford to Dr. Wanton was a formal employment contract or was intended to be used as an alternative to a formal employment contract with FAMU. The letter simply was generated to obtain a J1 visa for Petitioner.

    
    

89. In addition, Petitioner failed to prove that Dr. Jain, Dr. Weatherford or Dr. Perry had authority to bind FAMU to employ her for a two-year period. Once Petitioner's formal employment contract ended on December 31, 1992, she was just unemployed.

    
    

90. Furthermore, Petitioner acknowledged that she neither signed nor received a formal employment contract with FAMU that covered a period of two (2) years. Petitioner's counsel also stipulated to the fact that Petitioner had no formal employment contract with FAMU for a period to two (2) years. Dr. Humphries and Dr. Hogg were the only two (2) people who could approve Petitioner's employment at FAMU. Petitioner testified, however, that neither Dr. Humphries nor Dr. Hogg made her an offer of employment for the period of two

    (2) years.

    
    

91. Consequently, FAMU took no adverse employment action by not extending Petitioner's formal employment contract beyond June 18, 1993, to December 31, 1993.

    
    

92. Petitioner failed to prove that Dr. Weatherford accused her of making international personal calls on the Physics Department telephone. Although Dr. Weatherford's letter dated November 2, 1992 mentions his concern about telephone calls made to Vancouver, Canada, the letter is not accusatory in nature. Petitioner, also admitted that she had made some international personal telephone calls from the Physics Department and would reimburse FAMU for those charges. Petitioner also agreed that Dr. Weatherford's suspicions were founded. Finally, Petitioner failed to prove that the accusation allegedly made by Dr. Weatherford was an adverse employment action.

    
    

93. Petitioner failed to prove that she was prevented from attending an academic meeting in Reno, Nevada. Sufficient testimony was provided which indicated that Petitioner could have attended the academic meeting if she could have secured funding to finance her trip. Dr. Weatherford explained that he informed Petitioner that he did not have the funds to pay for her trip. Petitioner presented no substantial, competent evidence to refute Dr.

    Weatherford's explanation. As indicated by Petitioner in her testimony, attending academic meetings was not part of the employment agreement that she had with FAMU. Petitioner also did not establish that her failure to go to Reno was an adverse employment action.

    
    

94. Although Petitioner stated in her Petition for Relief that her salary was reduced, Petitioner testified to and Petitioner's counsel stipulated to the fact that Petitioner's salary was not reduced while employed at FAMU. Petitioner's biweekly salary was $1,200.00 for the period of January 1, 992, to June 18, 1993. Petitioner was paid $45,720.00 while employed at FAMU, which is

    $280.00 short of what she would have been paid if she had worked two (2) years for $23,000.00 for twelve (12) months.

    
    

95. Petitioner also asserted that she was retaliated against because she was not hired to a regular faculty position or an adjunct instructor position in the Physics Department during the years of 1993 and 1994 whereas others with less seniority and qualifications were hired. Petitioner, however, did not establish that a causal connection existed between the filing of Petitioner's sexual harassment complaint and retaliation complaint, and Petitioner's failure to be hired to a regular faculty position or an adjunct instructor position.

    
    

96. In the case sub judice, Petitioner did not establish by a preponderance of the evidence a prima facie case that Petitioner's failure to be hired as a regular faculty member or an adjunct instructor in the Physics Department at FAMU during the years of 1993 and 1994 was discriminatory treatment based on retaliation.

    
    

97. Petitioner failed to prove that she applied during the years of 1993 and 1994 for a regular faculty position or adjunct instructor position in the Physics Department at FAMU.

    
    

98. Petitioner failed to prove that she was qualified and available during the years 1993 and 1994 for a regular faculty position or adjunct instructor position in the Physics Department at FAMU.

    
    

99. Petitioner failed to prove that those hired to a regular faculty position or adjunct instructor position in the Physics Department at FAMU during the years of 1993 and 1994 were less qualified that she.

    
    

100. Sufficient testimony was provided which indicated that those hired to a regular faculty position or adjunct instructor position in the Physics Department at FAMU during the years 1993 and 1994 had more seniority and were more qualified than Petitioner.

     
     

101. In this proceeding, Petitioner did not present significant competent and substantial direct or indirect evidence of retaliatory discrimination by FAMU. Petitioner has not presented any comparative instances of disparate treatment and no direct or circumstantial statistical evidence that FAMU's actions were motivated by retaliation. No evidence is in the record which would show that retaliation was a motivation for any action taken in reference to Petitioner.

     
     

102. From the foregoing, it is concluded that Petitioner failed to prove a prima facie case of discrimination by FAMU in retaliation for Petitioner filing a sexual harassment complaint and retaliation complaint; and, even, if Petitioner did present a prima facie case, FAMU has articulated a legitimate

     non-discriminatory basis for the decisions made with regard to Petitioner's employment.

     
     

103. Pursuant to Section 760.11(6), Florida Statues, the Commission may allow the prevailing party reasonable attorneys' fees as part of the costs. Such an award may be ordered by the Commission if it is determined that an action was "frivolous, unreasonable, or without foundation," or "that the plaintiff continued to litigate after it clearly became so." Christianburg Garment Co. v. EEOC, 434 U.S. 412, 421-422 (1978).

     
     

104. The evidence in this proceeding does not demonstrate that Petitioner's prosecution of this action was frivolous. There is some evidence in the record related to the Petitioner's failure to hire claim which if given credit could arguably support Petitioner's allegations. The failure to hire claim is the only part of Petitioner's case which has any factual basis. However, that evidence in relation to the failure to hire claim was not credited and was very insubstantial, especially when compared to the evidence supporting Respondent's contentions. Therefore, an award of attorneys' fees and costs are not justified.

RECOMMENDATION

Based on the foregoing Findings of Fact and 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 by the Florida Commission on Human Relations denying and dismissing the Petition of Relief filed by Indira Khurana in its entirety.

DONE AND ENTERED: this 31st day of July, 1995, in Tallahassee, Leon County, Florida.

DIANE CLEAVINGER

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 31st day of July, 1995.

APPENDIX TO RECOMMENDED ORDER

1. The facts contained in paragraphs 1-14 and 16-35 of Respondent's Proposed Findings of Fact are adopted in substance, in so far as material.

2. The facts contained in paragraphs 15 and 36 of Respondent's Proposed Findings of Fact are subordinate.

3. The facts contained in paragraphs 1, 2, 4-6, 8, 11-12, 17 and 32 of Petitioner's Proposed Findings of Fact are adopted in substance, in so far as material.

4. The facts contained in paragraphs 3, 9, 10, 18, 19, 21, 22, 25, 36, 37,

   38 and 39 of Petitioner's Proposed Findings of Fact were not shown by the evidence.

5. The facts contained in paragraphs 7, 13, 14, 15, 16, 20, 23, 24, 26, 27, 30, 31, 33, 34 and 35 of Petitioner's Proposed Findings of Fact are subordinate.

6. The facts contained in paragraphs 28 and 29 of Petitioner's Proposed Findings of Fact are irrelevant and immaterial.

COPIES FURNISHED:

David Brooks Kundin, Esquire 906 Thomasville Road

Post Office Box 430 Tallahassee, Florida 32302

Bishop C. Holifield, Esquire Avery D. McKnight, Esquire Florida A & M University Office of the General Counsel

300 Lee Hall

Tallahassee, Florid 32307

Ronald M. McElrath Executive Director

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32303-4149

Dana Baird General Counsel

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32303-4149

Sharon Moultry, Clerk Human Relations Commission

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32303-4149

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 contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 94-002139

Orders for Case No: 94-002139