vs.
Case No. 19-0520
Respondent.
The final hearing in this matter was conducted before Administrative Law Judge Andrew D. Manko of the Division of Administrative Hearings (“DOAH”), pursuant to sections 120.569 and 120.57(1), Florida Statutes (2018),1/ on May 2, 2019, by video teleconference between sites in Tallahassee and Altamonte Springs, Florida.
For Respondent: Derek J. Angell, Esquire
Maria D. Beckman, Esquire University of Central Florida Millican Hall Suite 360
Whether Respondent, University of Central Florida (“UCF”), engaged in a discriminatory employment practice and/or retaliated against Petitioner, Michael Flint.
Mr. Flint filed a Complaint with the Florida Commission on Human Relations (“Commission”) on February 15, 2018, alleging that UCF engaged in a discriminatory employment practice by terminating him from his doctoral program on the basis of his age and/or handicap and retaliating against him.
The Commission investigated the claims and, on December 27, 2018, issued a determination that there was no reasonable cause to believe that an unlawful employment practice occurred.
On January 29, 2019, Mr. Flint timely requested a hearing by filing a Petition for Relief and the Commission transmitted the Petition to DOAH that same day to conduct a formal administrative hearing under section 120.57.
Before the hearing, UCF moved to dismiss the Petition on grounds that DOAH lacked subject matter jurisdiction because the substantive allegations raised by Mr. Flint were not employment- related. The undersigned denied the motion without prejudice to re-raising the issue at the final hearing.
The final hearing occurred on May 2, 2019. Mr. Flint testified on his own behalf and presented the testimony of four
witnesses: Robert Wood, Esquire, an instructor in UCF’s Legal Affairs Department; Dr. Thomas Wan, the former director of UCF’s Public Affairs Doctoral Program (“PAF Program”); Dr. Cory Watkins, an associate professor, undergraduate program director, and internship coordinator in UCF’s Criminal Justice Department, and a member of Mr. Flint’s doctoral committee; and Abby Milon, Esquire, an associate lecturer in UCF’s Legal Studies Department. Mr. Flint introduced no exhibits into evidence.
Dr. Robyne Stevenson, the former director of UCF’s PAF Program; Dr. Catherine Kaukinen, the chair of UCF’s Department of Criminal Justice; and Dr. Barbara Fritzsche, the associate dean of the College of Graduate Studies (“CGS”) at UCF. UCF also presented the testimony of two witnesses via video depositions: Dr. Sophia Dziegielewski, a tenured professor in UCF’s College of Social Work and chair of Mr. Flint’s doctoral committee; and Ranetta Guinn, the director of Graduate Affairs for UCF’s College of Health Professions and Sciences. Respondent’s Exhibits 1 through 22 were admitted into evidence without objection.
The parties gave their closing arguments during a telephonic conference on May 3, 2019.
A two-volume Transcript of the final hearing was filed on May 24, 2019. The parties timely filed their Proposed
Recommended Orders (“PROs”), which were duly considered in preparing this Recommended Order.
UCF is a state university located in Orlando, Florida, with an enrollment of about 60,000 undergraduate students and 10,000 graduate students.
Mr. Flint is a 71-year-old Vietnam combat veteran who suffers from post-traumatic stress disorder (“PTSD”), chronic fatigue, bipolar disorder, traumatic brain injury (“TBI”), and diabetes. He spent 30 years as a police officer. He graduated from Yale University with a degree in Psychology and, in 2002, obtained a master’s degree in Criminal Justice from UCF.
Mr. Flint is currently a full-time instructor at UCF in the Criminal Justice Department and has held that position for over 15 years.
In 2006, Mr. Flint learned that some faculty members were taking doctoral classes for free pursuant to a UCF policy. Like other state workers, UCF allowed its employees (and their spouses and children) to take up to six credit hours per semester for free so long as the course had an open seat and did not cost the school money. The privilege also applied to coursework towards a doctoral degree, though employees had to pay for their required dissertation credit hours.
Mr. Flint believed that obtaining his doctorate degree would make him a better instructor and ensure he had cutting edge knowledge in his teaching field. But, he understood that pursuing this degree was both completely independent from and secondary to his full-time faculty position. Indeed, UCF neither encouraged nor required him to pursue a doctorate degree, as a condition of continued employment or for training, job security, or advancement purposes. His job as a full-time instructor would remain unaffected by the classes he took.
The process for obtaining a doctorate degree is rigorous. First, students must complete their coursework, which often takes about two years, and pass a set of comprehensive exams. Then, they decide on their area of research and choose a dissertation committee, which is typically comprised of five faculty members: a chair, often with expertise in the student’s area of research, and four other faculty members, one or two within the student’s area of research and one or two outside of that area. Next, they draft a prospectus outlining the focus of the research, which has to be approved by and defended before the committee, after which they conduct intense research for about a year. Students then complete their dissertation, which must be approved by and defended before the committee. If successful, they are approved to graduate.
Like most universities, UCF follows the seven-year rule, which required all doctoral students to complete their degrees within seven years of admission so as to ensure that the research and coursework does not become stale. Although exceptions could be granted, they are discretionary academic decisions based on the circumstances of the particular student. Exceptions beyond ten years are extremely rare and, of those granted such an exception, only about half ultimately graduated.
Understanding that pursuing this degree would be secondary to his full-time job and that he had to complete the process in seven years, Mr. Flint applied for and was accepted into the PAF Program in the College of Health and Public Affairs (“COHPA”). He began his doctoral coursework in August 2006.
From 2006 through 2009, Mr. Flint worked full-time teaching five to six courses in the Fall and Spring semesters and three to four courses in the Summer semesters. During this same period, he took about one to two substantive courses towards his degree for free each semester, although he backed off his coursework (with approval from Dr. Thomas Wan, the PAF Program director at the time) for a brief period when his wife was diagnosed with cancer.
However, in late 2009, Mr. Flint developed Guillain- Barre Syndrome (“GBS”), which caused him to be hospitalized, placed on life support for almost two months, after which he
spent an additional six months at home recovering. While in the hospital, he developed diabetes. He also developed chronic fatigue syndrome, from which he continues to suffer years after his recovery.
UCF placed him on administrative medical leave from his teaching responsibilities for Spring and Summer 2010, but he resumed teaching a full course load in Fall 2010 and has continued to do so ever since.
As for his doctorate degree, Mr. Flint requested a special leave of absence from CGS, which oversaw all of the graduate programs across the university. CGS granted the request and placed a hold on his enrollment for all of 2010. Mr. Flint returned to taking classes in Spring 2011 and completed his substantive coursework in Fall 2011.
Still teaching full-time each semester, Mr. Flint moved on to the comprehensive exam phase of his studies. He studied for those exams in 2012 and passed them after one unsuccessful attempt in Fall 2013. Although the average student finished their coursework and exams in about two years, it took Mr. Flint seven years.
While continuing to meet his full-time teaching obligations, Mr. Flint spent 2013 and 2014 trying to conduct dissertation research and prepare his prospectus, now having to pay for those credit hours. His dissertation committee
initially consisted of Dr. Bob Langworthy, as chair, and
Dr. Matt Matusiak, Dr. Jeff Rosky, and Dr. Sophia Dziegielewski.
However, by Fall 2014, Mr. Flint had not yet submitted his prospectus to his committee. Ranetta Guinn, the director of Graduate Affairs for COHPA, met with him because it had been over seven years since he began the program. They created a timeline for finishing his prospectus by March 2015, defending it by May 2015, and defending his dissertation by April 2016. Ms. Guinn explained that he would need to apply for an exception from CGS to extend the deadline to ten years.
Unfortunately, around the same time, Dr. Langworthy retired and Mr. Flint had to find a replacement chair for his committee. Dr. Dziegielewski ultimately agreed to serve as the chair, but that required Mr. Flint to find another faculty member in his area of expertise to serve on the committee.
Dr. Cory Watkins ultimately agreed.
In March 2015, Mr. Flint petitioned CGS to extend the graduation deadline to ten years based on his 2009 GBS diagnosis, chronic fatigue, diabetes, and his disability rating as a combat veteran. He did not inform CGS, or anyone else at UCF, about his PTSD, bipolar disorder, or TBI.
Dr. Dziegielewski wrote a letter supporting his petition based on a Summer 2016 graduation. The director of the PAF Program
also wrote a supporting letter based on his medical issues and recent setback in having to find a new committee chair.
In April 2015, CGS approved the petition and extended the deadline for Mr. Flint to graduate through Summer 2016. The letter noted that no further petitions would be considered.
At the time, Mr. Flint believed it was a reasonable accommodation and that he would be able to meet the timeline, but ultimately was unable to do so. He did not defend his prospectus until January 2016, though he was supposed to complete that task by May 2015. He began drafting his dissertation in the Spring 2016 (again, having to pay for those credit hours), but did not timely defend it by May 2016. Notwithstanding, he was permitted to continue working in the hopes he could defend and graduate by the end of 2016.
When Mr. Flint had not yet submitted his dissertation in October 2016, he informed Dr. Dziegielewski that he was struggling with his normal workload, periodic illnesses, and chronic fatigue but would try to finish. But he did not petition CGS for another exception. He also failed to notify her or anyone else at UCF about his PTSD or bipolar disorder.2/ Because he ultimately failed to submit even a draft of his dissertation, he received an unsatisfactory dissertation grade for the Fall 2016 semester.
In January 2017, CGS dismissed Mr. Flint from the PAF Program. He filed an appeal to be reinstated but the grievance committee, limited to the issue of whether CGS followed proper procedure in reaching its decision, denied relief in March 2017.
While his appeal was pending, Mr. Flint submitted a draft of his dissertation. Upon review in March/April 2017, his committee members generally believed that it was almost ready and that he could complete his revisions and defend it in
Fall 2017 or Spring 2018 at the latest. However, the PAF Program director confirmed nothing could be done because the draft was not then defensible, no more extensions could be given, and his appeal already had been denied.
Notwithstanding his dissertation issues, Mr. Flint met his full-time teaching obligations throughout this period. He never asked for leave or a reduced schedule to have more time to devote to his studies. He taught consistently each summer to earn additional compensation, though doing so was not required, instead of focusing his attention on his studies. Even when his supervisor asked him to take a certification course on top of teaching in Fall 2016, he did not even think to ask if he could delay that course for a semester so he had more time to finish his dissertation. He also could have reduced his teaching load that semester by one course to account for the certification class, but chose not to do so.
Mr. Flint was clearly a devoted employee who made his teaching position his main priority. Unfortunately, the combination of putting his studies second and the many medical conditions from which he suffered caused him to fail to meet the extended deadlines and to be dismissed from the PAF Program.
Mr. Flint then filed a complaint with the Commission, alleging that UCF wrongfully dismissed him from the PAF Program and retaliated against him based on his age and handicaps.
To establish that UCF discriminated against him, Mr. Flint presented the testimony of two other UCF faculty members, Robert Wood, Esquire (62 years old), and Abby Milon,
Esquire (59 years old), who believed UCF had taken adverse employment actions against them and other older faculty members relating specifically to their teaching positions, such as reducing their course loads. However, neither of them were in a doctorate program like Mr. Flint and, moreover, their complaints related solely to their jobs as faculty members.
Conversely, Mr. Flint suffered no such adverse actions relating to his job as a faculty member. He could not complain about the way UCF treated him in that role, even after he challenged his dismissal from the PAF Program, as that academic decision did not adversely impact his faculty position. He also is still permitted to take up to two courses for free per semester at UCF, just as he was before.
Both UCF and Mr. Flint also presented the testimony of several UCF faculty members involved in Mr. Flint’s studies, from his committee members to PAF Program directors to the associate dean of CGS. Every such witness who testified about Mr. Flint’s dismissal confirmed that the decision was based on his failure to meet the agreed-upon extended deadlines and that his age and handicaps, most of which were unknown to the decision makers, had nothing to do it. Though his committee members confirmed that they were supportive of him being given a chance to graduate, they acknowledged that CGS made the final decision, that he had not adhered to the deadlines after they were extended, and that it was quite rare for any student (young or older, healthy or sick) to graduate beyond the ten-year mark.
CONCLUSIONS OF LAW
DOAH has jurisdiction over the parties and the subject matter of this cause. §§ 120.569, 120.57(1), & 760.11(7), Fla. Stat.; Fla. Admin. Code R. 60Y-4.016.3/
The Florida Civil Rights Act of 1992 (“FCRA”) protects employees from discrimination at work, including on the basis of age and/or handicap. See §§ 760.10(1)(a) & 760.11, Fla. Stat. Handicap is defined as “a physical or mental impairment which substantially limits one or more major life activities.”
§ 760.22(7), Fla. Stat.
The FCRA “is remedial and requires a liberal construction to preserve and promote access to the remedy intended by the Legislature.” Woodham v. Blue Cross & Blue
Shield of Fla., 829 So. 2d 891, 894 (Fla. 2002) (quoting Joshua
v. City of Gainesville, 768 So. 2d 432, 435 (Fla. 2000)).
The burden of proof is on Mr. Flint as the complainant. Dep’t of Banking & Fin., Div. of Sec. & Investor
Prot. v. Osborne Stern & Co., 670 So. 2d 932, 934 (Fla. 1996).
To prove a violation of the FCRA, Mr. Flint must establish a prima facie case of discrimination by a preponderance of the evidence, Valenzuela v. GlobeGround N. Am., LLC, 18 So. 3d 17, 22 (Fla. 3d DCA 2009); § 120.57(1)(j), Fla. Stat., which is defined as evidence that “more likely than not” tends to prove a certain proposition. S. Fla. Water Mgmt. Dist. v. RLI Live Oak,
LLC, 139 So. 3d 869, 872 (Fla. 2014).
Because the FCRA is patterned after Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e-17, “the Florida statute will take on the same constructions as placed on its federal prototype.” Brand v. Fla. Power Corp.,
633 So. 2d 504, 509 (Fla. 1st DCA 1994); Harper v. Blockbuster
Entm’t Corp., 139 F.3d 1385, 1387 (11th Cir. 1998).
“It is well-settled law that Florida courts follow the three-part framework set forth in McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 802-04 (1973), and its progeny, for
establishing, by circumstantial evidence, a discrimination claim based on disparate treatment in the workplace.” Valenzuela,
18 So. 3d at 21-22.
Under the McDonnell Douglas framework, Mr. Flint has the initial burden of establishing a prima facie case of age- or handicap-based discrimination. To do so, Mr. Flint must demonstrate that: 1) he is a member of a protected class; 2) he was qualified for the position; 3) he was subjected to an adverse employment action; and 4) his employer treated similarly-situated employees outside of his protected class more favorably than he was treated. Valenzuela, 18 So. 3d at 22; Burke-Fowler v. Orange
Cty., 447 F.3d 1319, 1323 (11th Cir. 2006).
Mr. Flint fails to establish that he was discriminated against on the basis of his age or handicap.
It is undisputed that Mr. Flint is a member of a protected class based on both his age (71 years old) and handicaps (PTSD and chronic fatigue, among others).
However, Mr. Flint did not suffer any adverse employment action. Mr. Flint’s employment at UCF is as a full- time instructor and he still maintains that job today. He confirmed that his teaching position has been unaffected by the academic decision to dismiss him from the PAF Program.
Mr. Flint contends that the PAF Program was a form of credentialing and training, and that his termination therefrom
could adversely affect his employment and career development, and his vulnerability to layoff. However, the weight of the credible evidence did not support that contention. UCF neither encourages nor requires their instructors to obtain doctorate degrees and Mr. Flint’s failure to obtain his has had and will have no effect on his teaching position. UCF also does not offer their employees free doctorate degrees or give them special treatment when applying for or pursuing such a degree. This always was an independent endeavor from his job and Mr. Flint understood that.
At best, the only link between Mr. Flint’s job and his studies was the fact that he could take up to six credit hours of his coursework for free each semester. But he is still permitted to utilize that privilege without regard for his dismissal from the PAF Program. It also cannot be ignored that the privilege only applied to his substantive coursework, which he completed in 2011, and from that point forward Mr. Flint had to pay for his dissertation credit hours. Thus, at the time of his dismissal in 2017, he was no longer utilizing the privilege as a benefit towards earning his degree.
Even if Mr. Flint had suffered an adverse employment action, his claim would fail because he has not established that UCF’s decision was discriminatory. For one, the evidence is undisputed that, at the time of his dismissal from the doctorate program, no one at UCF knew about his PTSD, bipolar disorder, or
TBI. Although Mr. Flint had informed UCF about his chronic fatigue and diabetes, he knew he was falling behind and never asked CGS for an accommodation before he missed the Summer 2016 graduation deadline or before he was dismissed in January 2017.
Moreover, the two faculty members who testified on Mr. Flint’s behalf were not similarly situated. They were not obtaining their graduate degrees like Mr. Flint and their complaints were for actions related to their teaching jobs.
Conversely, Mr. Flint’s complaints challenged the academic decision to dismiss him as a student from the PAF Program and he confirmed no adverse actions against his job had been taken.
Employers are also prohibited from retaliation, such as “discriminat[ing] against any person because that person has opposed any practice which is an unlawful employment practice under this section.” § 760.10(7), Fla. Stat.
As to this claim, Mr. Flint must establish a prima facie case of retaliation by proving that: (1) he was engaged in statutorily protected conduct; (2) he suffered an adverse employment action; and (3) there is a causal relationship between the events. Holifield v. Reno, 115 F.3d 1555, 1566
(11th Cir. 1997).
Much like his employment discrimination claim,
Mr. Flint fails to establish that UCF engaged in any retaliation against him because he suffered no adverse employment action as a
result of being terminated from the PAF Program. His job as an instructor remains intact and he is still permitted to take classes for free as a privilege of his employment.
At the end of the day, Mr. Flint’s complaint is that UCF should not have dismissed him from the PAF Program when he was so close to finishing. Though it may not be employment discrimination, his complaint is understandable given the serious medical and personal setbacks he suffered during the course of his studies. Most of the setbacks were out of his control, such as his wife’s cancer, his year-long battle with GBS that almost killed him, his PTSD and chronic fatigue, and having to change the direction of his research mid-stream when his committee chair retired. At the time of his dismissal, he had completed a final draft of his dissertation that his committee believed could be ready to defend in a few months.
If this case were an academic appeal, the undersigned would not hesitate to find that Mr. Flint’s dismissal from the PAF Program seems unfair and that, given the totality of the circumstances, UCF should give him a final opportunity to finish his dissertation based on the parameters outlined by his committee. Mr. Flint is a 71-year-old Vietnam combat veteran suffering from multiple ailments beyond his control, a 30-year veteran of the police force, and a devoted UCF employee for the last 15 years. He is reaching the sunset of his career and
wanted to further his studies primarily to be a better faculty member for UCF. While the rationale for the seven-year rule makes perfect sense, the evidence established that discretionary academic exceptions can be given and this certainly seems like the rare case that would warrant such an exception.
But this is not an academic appeal and, thus, the undersigned is constrained to determine only if UCF engaged in employment discrimination. And, for all the reasons discussed herein, the answer to that question is undeniably no.
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order finding that Petitioner, Michael Flint, failed to establish that Respondent, University of Central Florida, committed an unlawful employment practice against him and dismissing his Petition for Relief.
DONE AND ENTERED this 17th day of June, 2019, in Tallahassee, Leon County, Florida.
ANDREW D. MANKO
Filed with the Clerk of the Division of Administrative Hearings this 17th day of June, 2019.
1/ All statutory references are to Florida Statutes (2018), unless otherwise noted.
2/ Mr. Flint also never notified anyone at UCF about his TBI because he was not diagnosed with it until later.
3/ In its PRO, UCF renewed its pre-hearing argument that the Commission lacked jurisdiction to investigate Mr. Flint’s claims because they were not employment-related. However, Mr. Flint is an employee of UCF and his complaint alleged that UCF engaged in discrimination by terminating him from the PAF Program, which he contended had been largely a free endeavor as a privilege of his employment. The Commission, thus, had jurisdiction to investigate the claim and issue its no-cause determination pursuant to its statutory authority. See § 760.06(5), Fla.
Stat. (authorizing the Commission to “receive, initiate, investigate, seek to conciliate, hold hearings on, and act upon complaints alleging any discriminatory practice”);
§ 760.10(1)(a), Fla. Stat. (“It is an unlawful employment practice for an employer: (a) To discharge or to fail or refuse to hire any individual, or otherwise to discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment, because of such individual’s race,
color, religion, sex, pregnancy, national origin, age, handicap, or marital status.”).
Though Mr. Flint’s claims may ultimately fail on the merits if the evidence does not establish that his dismissal from the PAF Program was an employment-related decision (discriminatory or otherwise), the Commission could not have resolved that critical question in the first instance without conducting an investigation into the allegations. That is why this case is distinguishable from Honig v. Fla. Comm’n on Human Relations, 659 So. 2d 1236 (Fla. 5th DCA 1995), on which UCF relies, as the claimant there was a student (not an employee) and the complaint alleged discrimination based solely on the grade he received as a student in a class.
Tammy S. Barton, Agency Clerk
Maria D. Beckman, Esquire University of Central Florida Millican Hall Suite 360
Derek J. Angell, Esquire O'Connor & O'Connor, LLC Suite 1350
Cheyanne Costilla, General Counsel Florida Commission on Human Relations Room 110
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.
