Findings Of Fact Phillip Ortwein was employed by USF December 1, 1966 on a 7-month contract expiring June 30, 1967. On his application for employment (Exhibit 16) he indicated that he held a Masters Degree in Physical Education from Indiana University in 1948 and that he had done 1 1/2 years work on a Doctorate Degree which he expected to complete in 1968. He was employed in the Physical Education Department and assigned duties in the functional program as well as in the activities program instructing in tennis. His contract was renewed on July 1, 1967 for the period 9/1/67 to 6/30/68 on a 12-month appointment (Exhibit 4). His contract was again renewed July 1, 1968 for the 12-month period ending 6/30/69 (Exhibit 5). By memo dated March 3, 1969 Petitioner was notified that his contract would not be renewed effective June 30, 1970. Upon receipt of this notice Petitioner went to the Director of the Physical Education Division who had authored the notice to see if there was any hope his contract would be renewed. The Director, Dr. Bowers, advised Petitioner that there was always hope but that the notice remained effective. He was advised that he should upgrade his knowledge of changes in the academic physical education field. Petitioner was also aware that his immediate superior, Professor Prather, was not satisfied with his performance in the functional program of the Physical Educa-tional Division. Then or shortly thereafter Petitioner requested to be relieved of his duties in the functional program to devote more time to upgrading his knowledge and this was granted. Some six months later Petitioner first spent time in the library for this purpose. On January 27, 1969 the Physical Education Tenure Committee was requested by Bowers to submit a recommendation regarding the tenure status of Ortwein. At this time Ortwein was not eligible for tenure as he had not been employed by USF for the three years required. However, this was the only professor evaluation committee extant and Bowers, in order to get faculty input on whether or not to recommend renewal of Ortwein's contract, asked for the evaluation. On February 26, 1969, Bowers was advised the committee had voted 3 for granting tenure and 3 for deferring tenure. By letter dated December 22, 1969 Dean Edwin P. Martin, following a discussion with Ortwein, advised Petitioner that, due to an apparent misunderstanding by Ortwein regarding Bowers' notice he, Martin, was rescinding the termination notice of March 3, 1969, and that his employment would be terminated December 31, 1970. Following further discussion with Bowers Petitioner requested the full faculty in the Physical Education Division be polled to evaluate him. Results of this poll were 3 recommending granting tenure, 9 opposed, and 3 undecided. Due to administrative error Appointment-Reappointment Notice dated September 1, 1970 (Exhibit 7) renewing Petitioner's contract from" September 18, 1971 to June 13, 1971 was forwarded to and accepted by Petitioner. By letter to Ortwein dated October 9, 1970 (Exhibit 11) Dean Martin acknowledged that the contract (Exhibit 7) served to extend Petitioner's termination dated to June 13, 1971. Exhibit 12, letter of December 14, 1970, incorrectly dated December 14, 1971, Harris Dean, Acting President of USF, notified Petitioner that his employment would be terminated at the end of quarter 1, 1971, more than one year from the date of the letter. Exhibit 8, Notice of Appointment - Reappointment dated December 14, 1970 extended Ortwein's appointment to December 16, 1971. The parties stipulated that evidence subsequent to this latter termination date was not relevant to these proceedings. The pleadings indicate Ortwein was finally terminated in June, 1975. The letter of termination (or nonreappointment) dated December 14, 1970 was the first notice received by Respondent signed by the president of USF and this notice provided twelve months advance notice to Ortwein that his appointment would not be renewed. By letter of December 10, 1970 (Exhibit 13) Bowers presented to Acting President Dean four reasons for the recommendation not to reappoint Ortwein. These were: (1) Lack of performance in the area of functional physical education; (2) Contribution limited to area of tennis; (3) No contribution to the department outside the area of tennis; and (4) When the entire faculty of the Physical Education Division were polled there were 3 votes for and 9 against his continuing employment with 3 abstentions. Petitioner's performance in the Physical Education Division was unsatisfactory. He exhibited difficulty handling large groups and communicating instructions to them. His contributions at staff meetings were non-existent or negligible. His relations with students were considered brusk and too militaristic by his superiors. Neither Petitioner nor any other witness testified to any personal animosities between them and Petitioners; or of any conflict with any religious, political or social philosophies between them and Petitioner. In fact all witnesses testified no such personal difficulties existed or were apparent.
Conclusions It is hereby ordered and adjudged that Petitioner's complaint be and the same is hereby dismissed. Even if the complaint were to stand, the record supports, with competent substantial evidence, the conclusion that the Petitioner should not be re-employed by the University. Therefore, that decision is affirmed and adopted as the final action of this agency. Done and ordered at Tampa, Florida, on September 14, 1977. Wm. REECE SMITH JR. President
The Issue Whether or not the Petitioner, Joseph E. Sedlak, is entitled to the restoration of any rights and privileges previously enjoyed, which have been removed as the result of the Respondent, University of North Florida's, notice of non-renewal of the Petitioner's contract beyond June 15, 1977, and whether or not the Petitioner is entitled to renewal of his contract with the Respondent beyond June 15, 1977.
Findings Of Fact This cause came on for consideration based upon the com-plaint filed by the Petitioner, Joseph E. Sedlak, dated July 9, 1976, as amended March 29, 1977. The answer to the amended complaint was filed by the Respondent, University of North Florida, April 15, 1977. The Complainant/Petitioner is a duly appointed employee and faculty member of the University of North Florida, who initial employment commenced on December 16, 1974. On June 2, 1976, Dr. Robert M. Siudzinskl, Chairman of the Department of Special Education, College of Education, University of North Florida, conducted an annual evaluation of Use Petitioner, Dr. Joseph E. Sedlak, a member of the faculty of the Department of Special Education. During the course of the annual evaluation process, Dr. Siudzinski told Dr. Sedlak that he had made the decision to recommend that Dr. Sedlak's contract as an employee with the University of North Florida not be renewed after June of 1977. This statement was made to Dr. Sedlak following a discussion between Dr. Siudzinski and Dr. Sedlak concerning the annual performance evaluation of Dr. Sedlak, as accurately summarized in Petitioner's Exhibit #54, admitted into evidence. Dr. Siudzinski then read from the Academic Personnel Policies and Procedures of the University of North Florida, Chapter XI-25 and 26, which states: "... the recommendation not to renew a non- tenured faculty member will originate with the Chairman of the department and be concurred in by the Dean of the College and Vice President and Dean of Faculties." After this Dr. Sedlak was informed by Dr. Siudzinski that Dr. Siudzinski had conferred with the President, Vice President and Dean of Faculties, and the Dean of the College of Education at the University of North Florida and they had concurred with his decision and had authorized Siudzinski to recommend non-renewal. (The excerpts of the University of North Florida Academic Personnel Policies and Procedures, Chapter XI are found as Petitioner's Exhibit #60, admitted into evidence.) It is unclear whether Dr. Siudzinski did in fact confer with the President and gain his concurrence with the decision and authority to recommend non-renewal; however, there were some conferences between Siudzinski and Vice President and Dean of Faculties and the Dean of the College of Education. These individuals concurred with the decision and authorized Siudzinski to recommend the non-renewal of Dr. Sedlak's contract of employment with the University of North Florida. At that time the Vice President and Dean of Faculties was Dr. Roy L. Lassitor and the Dean of the College of Education was Dr. Andrew Robinson. Dr. Siudzinski, in the course of the conference with Dr. Sedlak on June 2, 1976 stated his reasons for recommending non-renewal. Those reasons were: Failure to cooperate with the Department Chairman. Failure to respond to the assistance quarter in amanner that benefited the Department. Unprofessional behavior during the assis tance quarter. Failure to contribute to the Department functioning commensurate with his rank (Reference was made to Dr. Sedlak's work on the 'Discrepancy Model.')" Finally, Dr. Siudzinski read from the University of North Florida Academic Personnel Policies and procedures, Chapter XI-26 and 27 which states: "prior to the transmission of the notice of non- reappointment, the University Officer initiating such action shall confer informally with the faculty member and explain the reasons for non-reappointment. The faculty member may request a written statement of reasons for non- reappointment within ten days after receiving the written notice. The request shall be in writing and the reasons shall be provided within ten days after the submission of the request. The notice of non-reappointment shall state in it the expiration date of the current contract and the effective date of termination and it shall indicate that the faculty member may appeal to the Committee on Rights and Responsibilities if he feels that the action is based on constitutionally impermissible grounds or to the President for review of the non-renewal decision when constitutional issues are not involved." Between June 2, 1976 and June 10, 1976, Dr. Roy Lassiter met with Dr. Sedlak and discussed, among other things, Dr. Sedlak's qualifications to remain on the faculty at the University of North Florida. Somewhere in this time period there was a discussion between Dr. Andrew Robinson and Dr. Sedlak, in which Dr. Robinson indicated that he concurred with the reasons which Dr. Siudzinski had given for the recommended non-renewal of Dr. Sedlak's contract, based upon Siudzinski's documentation and Siudzinski's reasons. On June 10, 1976, Dr. Thomas G. Carpenter, President of the University of North Florida, wrote to Dr. Sedlak recounting the conference of June 2, 1976, between Dr. Siudzinski and Dr. Sedlak, that informally notified Dr. Sedlak of the fact that his contract would not be renewed after June 15, 1976. The letter of Dr. Carpenter also indicated that formal notification of the action of non- renewal was being mailed June 10, 1976. Dr. Carpenter's letter further indicated that a new contract would be given to Dr. Sedlak effective June 16, 1976, for a contract year of 1976-77. (This letter had been prepared for Dr. Carpenter's signature by Dr. Lassiter, who is the delegated authority in matters of non-renewal of a non-tenured faculty member, in accordance with University of North Florida Academic Personnel Policies and Procedures, Chapter XI-25.) As Dr. Carpenter promised, formal notification of non-renewal of Dr. Sedlak's contract of employment was mailed from Dr. Robert M. Siudzinski, Chairman of the Department of Special Education, June 10, 1976. A copy of this letter of non-renewal is Petitioner's Exhibit #51, admitted into evidence. This letter served as official notification from the President of the University of North Florida, through his designee, Dr. Robert Siudzinski that Dr. Sedlak would not be appointed to the faculty of the Department of Special Education after June of 1977. The Siudzinski letter established that the current contract for the 1976-77 academic year would officially terminate on June 15, 1977. The letter stated that Dr. Sedlak could request a statement of reasons for the non- renewal within ten days of the date of receipt of the letter. The letter also attached the rules of the Board of Regents regarding the filing of grievances regarding non-renewal of contract. The letter went on to state that any grievance which Dr. Sedlak wished to file must be filed with the University President within 20 days after receipt of the letter, in accordance with quoted provisions. These provisions are drawn from the Chapter 6C-5.08(4)(c)5., Florida Administrative Code, which states: "any faculty member who deems himself aggrieved because of the recommendation that his contract of employment not be renewed and alleges (1) that the recommendation is based on constitutional impermissible reasons or (2) that it violates his property rights or (3) that it is not in compliance with written standards, criteria, or procedures prescribed by the Board of Regents or University regulations made within twenty days after receipt of the notice of non-renewal initiate his grievance by filing with the President, a complaint conforming to the requirements of paragraph (a) of Subsection (3) of this rule." Dr. Sedlak wrote a letter of June 14, 1976, to Dr. Siudzinski requesting a statement of reasons for non-renewal. This letter was responded to on June 22, 1976, in a letter by Dr. Siudzinski which stated four reasons for non-renewal of the contract. Those reasons being: "1. Failure to cooperate with the Department Chairman. Failure to respond to the assistance quarter in a manner that benefited the Department. Unprofessional behavior. Failure to contribute to the Department programs commensurate with rank and expectations at the time of initial appointment." Subsequent to the receipt of a statement of reasons, Dr. Sedlak filed his original letter of complaint of July 9, 1976. In accordance with Chapter 6C-5.08(4)(c)6., Florida Admin-istrative Code, Dr. Carpenter requested of Dr. Minor H. Chamblin, Acting Chairperson of the Faculty Grievance Committee of the University of North Florida, that an investigation be made of the complaint filed by Professor Sedlak in his July 9, 1976 letter. A copy of the report of that investigation may be found as Petitioner's Exhibit #59, admitted into evidence. The investigation did not lead to the resolution of the complaint of Dr. Sedlak, as indicated by the ongoing proceedings. The underlying facts involved in the dispute over the non-renewal of Dr. Sedlak's contract, began with the initial interview for employment which was conducted by Dr. Siudzinski. It was Dr. Siudzinski's contention in his testimony given in the course of the hearing, that Dr. Sedlak was told in the employment interview, that the University of North Florida program in Special Education was designed to have students obtain competencies in their field, meaning that the program at the University of North Florida was a competency based program. Moreover, Dr. Siudzinski contended that he told Dr. Sedlak that behavior modification was a strong part of the University of North Florida program and that he felt that Dr. Sedlak was weak in the behavior modification area and needed to improve. Dr. Siudzinski testified that he told Dr. Sedlak these things, notwithstanding the fact that Dr. Sedlak was hired to teach coruses other than behavior modification courses. Dr. Siudzinski indicated in his testimony that Dr. Sedlak was encouraged to sit in on Dr. Siudzinski's behavior modification course as an aid to Sedlak's achieving competency in the area. In opposition to this statement, Dr. Sedlak's testimony in the hearing indicated that he assumed his duties as a teacher at the University of North Florida, following initial interviews, but these interviews did not include a discussion of the necessity that he, Dr. Sedlak, have a competency in behavior modification. He said, as indicated by his vita filed with the University of North Florida at the time of his employment, Dr. Sedlak had never taken courses in behavior modification, and according to Dr. Sedlak those courses were not required as a prerequisite to his employment at the University of North Florida. Dr. Sedlak stated that at the initial interview there was no discussion of the philosophy of the Department of special Education at the University of North Florida, nor did Dr. Siudzinski tell him that he was expected to get a competency in behavior modification. Finally, in the discussion of the question of the necessity for competency in behavior modification at the employment stage, several other members of the faculty of the Department of Special Education, University of North Florida, offered testimony. One of those witnesses was Clement Van Nagel who testified that he had been hired to teach behavior modification and the policy that behavior modification competency was necessary had been discussed at faculty meetings which Dr'. Sedlak attended. Another faculty member in the Department of Special Education, Thomas Serwatka, testified in the hearing and stated although he was not told that he would be required to teach behavior modification, he was told by Dr. Siudzinski that. The Department of Special Education was competency based and that it was behavioral in its orientation and Siudziriski wanted to know if Serwatka had a background in behavior modification. Another faculty member in the Department of Special Education who testified was Mary D' Zamko. Mrs. D' Zamko testified that when she was hired she was expected to have a competency in behavior modification and that to her knowledge other faculty members were held to the same standard of competency. She also indicated that this expectation was made clear in the staff meetings in which Dr. Sedlak was in attendance. Finally, Robert Gonzales, a member of the faculty of the Department of Special Education, testified that when he was hired that there was an expectation that he have a competency in behavior modification. From the testimony offered in the course of the hearing it is established that Dr. Siudzinski apprised Dr. Sedlak of the expectation that Dr. Sedlak have a competency in behavior modification to be a member of the faculty at the University of North Florida and it is further established that this requirement was enunciated at intervals during the course of faculty meetings at the University of North Florida which Dr. Sedlak attended. Petitioner's Exhibit #9, is a composite exhibit which was admitted during the course of the hearing. This exhibit contains a letter of December 9, 1974, from Dr. Siudzinski setting out the period of appointment of Dr. Sedlak as Associate Professor of Education effective December 16, 1974, for a period to run through June 30, 1975. This letter sets out the major duties which Professor Sedlak was expected to perform. Professor Sedlak accepted the contract and appropriate administrative officials approved the hiring. From the time of the initial employment up to and including the date of the annual evaluation, which was held on June 3, 1975, nothing of any significance occurred. The annual evaluation of Dr. Sedlak's performance was conducted by Dr. Siudzinski on June 3, 1975. Prior to that date Dr. Sedlak was recommended for appointment for the summer quarter of 1975 effective June 23, 1975, as shown by Petitioner's Exhibit #14, admitted into evidence. Dr. Sedlak was approved for that quarter. In the evaluation session of June 3, 1975, mention was made of a problem which Dr. Siudzinski felt that Dr. Sedlak had in understanding, a so called "Discrepancy Evaluation Model." Dr. Siudzinski felt that from his observation of Dr. Sedlak's performance in instructing on this model, that Dr. Sedlak did not have a satisfactory understanding of it. Petitioner's Exhibit #15, admitted into evidence is a memorandum of June 5, 1975 dealing with the problem of Sedlak's understanding and his contribution to the underlying project. The fo1low up of the June 3, 1975 evaluation conference is found in a memorandum of June 5, 1975, which is Petitioner's Exhibit #15, admitted into evidence. In addition a memorandum was filed to the folder of Dr. Sedlak, dated June 27, 1975, from Dr. Siudzinski. A copy of this memorandum is Petitioner's Exhibit #17, admitted into evidence and the exhibit shows that Dr. Sedlak was recommended for reappointment for the year 1975- 1976. A copy of the offer of reappointment is found in Petitioner's Exhibit #19, admitted into evidence. This is an August 1, 1975, letter from Dr. Siudzinski indicating that the period of employment is from September 15, 1975 through June 15, 1976. Dr. Sedlak accepted this employment. Other action taken on the Petitioner's employment in 1975 would include a recommendation from Dr. Roy L. Lassiter, Jr., Vice President and Dean of Faculties, that Dr. Sedlak be given credit toward tenure at the University of North Florida for service at other institutions of higher education. This letter is in the form of a recommendation and a copy of the letter is Petitioner's Exhibit #21, admitted into evidence. The next notable event occurred in October or November of 1975, when an unidentified number of students objected to Dr. Siudzinski that Dr. Sedlak had assigned tests in his courses and not given those tests; to be followed by a period in which a group of tests were given to the students at one sitting. It is not clear that these complaints were made known to Dr. Sedlak and no official indication of these complaints was placed in the departmental file kept on Dr. Sedlak. In January, 1976, under a grant program, members of the faculty of the Department of Special Education, University of North Florida conducted a series of workshops on the subject of the aged. One of these workshops was conducted in St. Augustine, Florida on January 24, 1976. A part of the program was presented by Dr. Sedlak and Dr. Siudzinski observed part of the presentation. According to Dr. Sedlak, in a debriefing session Dr. Siudzinski indicated that he felt that certain of the information was irrelevant and counter to the behavioristic philosophy of the Department, to which Dr. Sedlak stated he protested and indicated that he had taught what was in the prescribed textbook. Dr. Sedlak testified that the subject then turned to Dr. Siudzinski's question of him, whether Sedlak had told anybody else about an incident which he had seen between a student and Siudzinski. Sedlak testified that the incident spoken of referred to Siudzinski being seen by Sedlak embracing and kissing a student, whom Sedlak knew. Sedlak claimed that he told Siudzinski that this incident was none of Sedlak's business and that he had said nothing. The subject, per Sedlak's testimony, then turned to whether Sedlak would be at the University of North Florida next year and Siudzinski supposedly said he really didn't know if Sedlak would fit in. The "incident" spoken of was supposed to have occurred a couple of weeks before this conversation. Siudzinski's version of the workshop debriefing was that he criticized Sedlak for being at variance with the purpose of the workshop, in that Sedlak was labeling matters and not dealing in the observable and measurable. Moreover, Siudzinski testified that some of the things that Dr. Sedlak was dealing in were contrary to what was being said by others participating in the workshop. Siudzinski claims he then brought up a complaint by a student which had been relayed through a secretary in the office of the Department of Special Education. Sedlak, by Siudzinski's statement, was kidding the student by saying that he had seen Siudzinski parked in front of her house. This was the total account of the January 24, 1976 debriefing, from Siudzinski's point of view. Dr. Siudzinski denies any incident in which he embraced a student or kissed a student. The subject was brought up again on January 27, 1976, after Siudzinski had attended one of Dr. Sedlak's classes for an hour and a half and spoke with him about the teaching. During the course of that conversation, Sedlak accused Siudzinski of "being on his back" and a heated argument ensued. Sedlak claims Siudzinski admitted being on his back about the so called "incident" with the "student" and Siudzinski claims that Sedlak told him that he would smear his, Siudzinski's name and family, so that he could not hold his head up in the community. Siudzinski said that he responded to this statement by asking Sedlak to resign. Another subject which was brought up on January 27, 1976, during the course of the discussion of the class, was Siudzinski's inquiry as to why Sedlak was teaching the I.T.P.A. tests, which Siudzinski thought was Inappropriate, by Sedlak's testimony. Dr. Siudzinski did not testify on whether he commented on teaching the I.T.P.A. or not. He simply said that he found some good things and some bad things in Dr. Sedlak's teaching. After the discussion of January 27, 1976, Dr. Siudzinski called Dr. Lassitor the next morning and told Dr. Lassiter of his concern about the accusations which Dr. Sedlak had placed against him on the subject of the student incident. Dr. Siudzinski observed another of Dr. Sedlak's classes on January 28, 1976. About this time period, Dr. Siudzinski prepared a first draft of a document entitled Discrepancy Evaluation Model Competencies which he intended to evaluate Dr. Sedlak on. Petitioner's Exhibit #24 is this document. In addition, Dr. Siudzinski submitted as a part of a memorandum of February 2, 1976, certain competencies in the behavior modification area which he expected to evaluate Dr. Sedlak on. The copies of this memorandum and the evaluation on behavior modification are found as Petitioner's Exhibit #25, admitted into evidence. These items found as Petitioner's Exhibits #24 and #25 were provided for Sedlak. These discussions mentioned above, between Dr. Sedlak and Dr. Siudzinski, were continued on February 5, 1976. On February 6, 1976, a meeting was held between Dean White, the then Dean of the College of Education, University of North Florida; Dr. Andrew Robinson; Dr. Siudzinski and Dr. Sedlak with the idea of trying to reconcile the differences between Dr. Siudzinski and Dr. Sedlak. The meeting also had as a topic of discussion, the propriety of requiring Dr. Sedlak to demonstrate his competency in behavior modification and the subject of the discrepancy evaluation model. There is a memorandum of February 9, 1976, indicating that there was a conversation between Professor Sedlak and Siudzinski. This memorandum is Petitioner's Exhibit #27, admitted into evidence. Dr. Sedlak does not recall this conversation and Dr. Siudzinski offered no testimony about it. A meeting was held February 10, 1976, between Dean White, Dr. Robinson, Dr. Sedlak and Dr. Siudzinski in which Dean White and Dr. Robinson suggested that If Dr. Sedlak had a complaint to make about Siudzinski's morals or behavior, he should state them. Sedlak's reply was that he had noting to say at that time. Dr. Robinson recalls that other subjects in the conversation were the question of Dr. Sedlak's competency in behavior modification and the possibility of offering an assistance quarter to improve Dr. Sedlak's knowledge of behavior modification. Siudzinski was to go back and think about what to do on the subject of the assistance quarter. In this same time frame there were several conversations between Dr. Siudzinski and Dr. Lassiter concerning Dr. Sedlak's performance and Dr. Lassiter had indicated that he thought that perhaps an assistance quarter was a proper aid, even though the matter concerned Dr. Sedlak's qualifications as opposed to his teaching skills. This subject of an assistance quarter was also discussed between Dr. Lassiter and Dr. Robinson at about this time. A meeting was held on February 13, 1976, between Dr. Siudzinski and Dr. Sedlak. A memorandum which summarized the results of that meeting is Petitioner's Exhibit #29, admitted into evidence and made a part of the record herein. This particular meeting was an evaluation session in which Dr. Siudzinski discussed one of the courses which Dr. Sedlak was teaching, to wit, EEC 604. He also mentioned the S.E.P.A. program audit which Sedlak was to participate in. Discussion was entered into about remedying the deficiency in behavior modification, which Dr. Siudzinski felt that Dr. Sedlak had. Suggestions offered were; taking a class and peer evaluation. The Discrepancy Model of Evaluation was also discussed and Dr. Siudzinski removed Dr. Sedlak from that project. The removal occurred because Dr. Siudzinski had talked to Professor D'Zamko and come to the conclusion, based on that conversation and his own observations, that Sedlak did not understand the project sufficiently and was not providing equitable participation with D'Zamko. Dr. Sedlak had not boon privy to the conversation between D'Zamko and Siudzinski. Dr. Sedlak complied with the request pertaining to EEC 604 and apparently complied with the request pertaining to the S.E.P.A. program audit. On February 27, 1976, a memorandum which is Petitioner's Exhibit #32, was sent from Dr. Siudzinski to Dr. Sedlak requesting an appointment between the two. Dr. Sedlak did not respond to the memorandum and a memorandum of March 8, 1976 was sent as a follow up requesting a meeting. This memorandum, Petitioner's Exhibit #33, admitted Into evidence, specifically sets out the topic of the meeting. One of the topics of the meeting, which was conducted on March 10, 1978, concerned the efforts which Dr. Sedlak had taken to cover one of his class sessions, EEC 604. The form that was filled out to have a sub-stitute teacher showed the wrong date. The form additionally indicated that Dr. Van Nagel would conduct the entire class, which was not possible since Dr. Van Nagel had a scheduling conflict for the first two hours of the four hour session, which was to be the length of time of Dr. Sedlak's class on that occasion. Dr. Sedlak had requested Dr. Cathy Hartman, another member of the faculty, to cover the first part of the class, and this was not reflected on the form. Dr. Hartman was unable to cover the class and this knowledge was only made known at 5:00 P.M. the day before the class session. The first part of the class to be covered was one in which a test was given to the students. Dr. Siudzinski took over that portion of the class and found the test instrument was not fair to those persons who did not have miniature calculators and the substance of the test was not acceptable in his view. A summary of the evaluation session of March 10, 1976, is Petitioner's Exhibit #34, admitted into evidence and made a part of the record herein. Dr. Siudzinski requested that he be provided with the test instruments involved in the EEC 604 course. One of the test instruments was the one given by Dr. Siudzinski and is Petitioner'S Exhibit #35, admitted into evidence. Of the remaining test instruments, one or more were never provided to Dr. Siudzinski. Dr. Sedlak's explanation was that some of the tests had been destroyed and some of the tests were found subsequent to the time that he was removed from the Department of Special Education. Another subject in the evaluation session of March 10, 1976 was the discussion of behavior modification. No resolution was reached on the subject of the possibility of Dr. Sedlak taking a course in behavior modification and Dr. Siudzinski agreed to look into this further. The memorandum covering the evaluation session indicates that an agreement was reached on a meeting to be held with Dr. Andrew Robinson on March 12, 1976, to discuss the assistance quarter, which was to begin March 26, 1976. Dr. Sedlak claims that no such discussion was entered into concerning the subject of assistance quarter or a meeting with Dr. Robinson. Dr. Siudzinski remembers that the subject of setting up an assistance quarter had been discussed in an evaluation session, although he does not mention which session. In fact, after a memorandum of notice, a meeting was held with the then Dean Designate Andrew Robinson on March 18, 1976. At the meeting Dean Robinson had a copy of the memorandum summary of the meeting of March 10, 1976 between Dr. Sedlak and Dr. Siudzinski which is Petitioner's Exhibit #34, admitted into evidence. Dr. Robinson indicated that he felt that the problem with the class coverage was serious. Dr. Sedlak responded that he thought this was trivial. Nonetheless, Dr. Robinson instructed Dr. Sedlak that these matters would begin to pile up. The subject of the assistance quarter was brought up, and Dr. Robinson indicated that if Dr. Sedlak refused to participate in the assistance quarter and resigned, he wanted to know what Dr. Siudzinski would provide in the way of an employment reference. Dr. Siudzinski indicated that he would not volunteer any derogatory information about Dr. Sedlak to a prospective employer. The subject of an assistance quarter was concluded by Dr. Robinson telling Dr. Sedlak that he would expect the assistance quarter to he a part of the spring quarter duties of Dr. Sedlak. Dr. Sedlak, in his testimony in the hearing, denied that any conversation on the assistance quarter was entered into. Dr. Siudzinski again asked for the test instruments which were involved in EEC 604 and Dr. Sedlak refused to give these instruments to Dr. Siudzinski but indicated that he would give them to Dr. Robinson. As stated before, some of these test instruments were never provided to Dr. Siudzinski, nor were they provided to Dr. Robinson. Dr. Robinson also asked Dr. Sedlak at the meeting were there reasons other than professional ones why Dr. Siudzinski would be putting Dr. Sedlak through an assistance quarter. Dr. Sedlak responded that he would not deal with that at that time. After the meeting between Siudzinski, Robinson, and Sedlak, Sedlak came to Robinson's office and stated that the reason Siudzinski was after him was because one day Sedlak had caught Siudzinski and a student in a compromising situation. Robinson responded to this statement by saying that if Sedlak would make formal charges against Siudzinski he would Investigate and discipline Siudzinski if it were true; however, if It was untrue, Dr. Sedlak would be disciplined. Dr. Sedlak said he would need time to think about such a complaint. He never did offer to make a formal complaint. Between the winter and spring quarters of 1976, Dr. Sedlak entered the hospital for a kidney disorder. He had signed out for a car from the University on the day he entered the hospital. The car was signed out from the University to go to Lake City, Florida to teach a workshop for the aged. When he became ill he went to the hospital and parked the car, leaving the car with the keys in the ignition. He then called Dr. Siudzinski and told him he could not attend the workshop the next day because he was in the hospital, after which he hung up. He did not indicate to Dr. Siudzinski which hospital he was in. Through the efforts of the administration and in particular Dr. Siudzinski, it was determined that Dr. Sedlak was in Memorial Hospital, Jacksonville. Dr. Sedlak did not indicate his whereabouts until the next day, at which time he called Dr. Siudzinski and indi-cated that the car was in the Memorial Hospital parking lot. Dr. Robinson was concerned about the health issue and offered to allow Dr. Sedlak to assume some other duties other than teaching in the spring quarter of 1976. Dr. Sedlak declined his offer and returned to his teaching duties. Dr. Robinson made clear that this return to teaching would cause Dr. Sedlak to be treated as any other teacher even though he was going to be on an assistance quarter. As a part of this discussion, Dr. Robinson required Dr. Sedlak to produce a letter saying he was capable of performing his teaching duties Dr. Sedlak responded by correspondence of March 29, 1976, which is Petitioner's Exhibit #39, admitted into evidence. Dr. Siudzinski followed this letter by a letter of March 30, 1970 to Dr. Sedlak which is Petitioner's Exhibit #40, admitted into evidence and indicates that in the spring quarter, Dr. Sedlak would perform duties as an Associate Professor in the Department of Special Education, as well as the additional responsibilities that had been discussed, meaning the assistance quarter. Again Dr. Sedlak denies that the assistance quarter was to be performed. On April 1, 1976, Dr. Siudzinski discussed a meeting of March 29, 1976, between he and Sedlak and reiterates his request for the exams, the five examinations which were used In the winter quarter course EEC 604. Petitioner's Exhibit #42, admitted into evidence, is a composite exhibit containing two examinations of the winter quarter of 1976 and three sets of answers. These items were found in June or July, 1976, but as stated were never given Dr. Siudzinski. Another evaluation session was held between Dr. Siudzinski and Dr. Sedlak on April 22, 1976. A summary of this evaluation session is found in Petitioner's Exhibit #43, admitted into evidence and made a part of the record herein. Some of the subjects covered in the evaluation session included a discussion of the attendance of a workshop on behavior modification, and another request that the examinations for the EEC 604 course be provided. He was also requested to provide the instruments and techniques involved in that course and other courses being taught by Dr. Sedlak. These were provided. An inquiry was made about the progress that Dr. Sedlak had made in mastering Discrepancy Model Competencies contained in the list of January 30, 1976. Other matters covered were the progress which Dr. Sedlak had made on the mastering of behavior modification competencies set up in the memorandum of February 2, 1976. It was also discussed that Dr. Sedlak was not answering his phone in the office. Finally, Dr. Siudzinski indicated that he might be visiting Dr. Sedlak's classes in the future and requested his list of competencies that were to be covered. Dr. Sedlak stated that he would not provide the exams in the EEC 604 class without speaking to the union. He made a similar reply on the request for instruments and techniques in other courses and a similar reply about progress which he had made in mastering the Discrepancy Model Competencies. Additionally, he said he refused to be tested on the Discrepancy Model Competencies, since he was an Associate Professor. He made the same response to the inquiry on progress on behavior modification competencies. He also stated that many of the behavior modification competencies were incorporated in his classes. (Sedlak also taught several sessions on behavior modification for the Duval County School Board outside his normal duties.) The complaint about answering the phone was responded to by Dr. Sedlak in which he said that when he was busy with someone in the office or working on something important, it was not necessary to answer the phone. He agreed to produce the list of competencies to be covered in his upcoming classes. The summary of the evaluation goes on to request in writting copies of the exams in the EEC 604 course for the winter quarter 1976. It also requests in writting, copies of the instruments and descriptions of techniques in evaluating courses being taught by Dr. Sedlak. It requests in writting an answer on progress made in mastering the Discrepancy Model Competencies of January 30, 1976 and the progress made in mastering behavior modification competencies attached to the memo of February 2, 1976. In connection with the discussion of instruments and techniques in evaluating students in the courses being taught by Dr. Sedlak, Petitioner's Composite Exhibit #44, admitted into evidence, is copies of classes assigned to be taught by Dr. Sedlak for the period of his stay with the Department of Special Education. On April 27, 1976, Dr. Sedlak responded to the memorandum on the meeting on April 22, 1976. In this memorandum he suggested that the tests were not kept and that he does not traditionally keep tests and asked why the matter of the tests of the EEC 604, winter quarter kept coming up. He stated that he provided evaluation instruments for EEC 500 as enclosed and stated that the other evaluation instruments were not kept for other courses. His response to the Discrepancy Model of Evaluation was that he had been removed from responsibilities in the area and made no further response. Finally, in response to the question on behavior modification competencies, he simply stated that he had given workshops in behavior modification for Duval County Schools. On May 28, 1976, a memorandum was sent to Dr. Sedlak from Dr. Siudzinski requesting a meeting for the annual evaluation to be held June 2, 1976. During the spring quarter of 1976, Dr. Roy L. Lassitor met with members of the facultv of the Department of Special Education other than Dr. Siudzinski and Dr. Sedlak and requested them to answer several questions. Me asked them if Dr. Siudzinski was involved with any female students to their knowledge, to which they responded no. He asked them if the faculty was aware of any incident between Dr. Siudzinski and some student and they responded yes, but only as a rumor. He asked them if they had confidence in Dr. Siudzinski as chairperson and they responded that they did. The persons contacted were Dr. Van Nagel, Dr. Serwatka, Mrs. D'Zamko and Dr. Gonzales. In that quarter, Dr. Robinson met several times with Dr. Siudzinski to try to clear up the progress that had been made by Dr. Sedlak on the assistance quarter. He also met with Dr. Sedlak and reminded him that he expected Sedlak to perform the assistance quarter laid out by Siudzinski. Respondent's Exhibit #2, admitted into evidence, is a list of Dr. Robinson's suggestions for the assistance quarter. In other meetings with Siudzinski, Siudzinski stated that very few things that Dr. Sedlak had been requested to do had been done, and that he thought that Sedlak should be terminated. Some of the complaints that Siudzinski related to Dr. Robinson were, intimidation of secretaries, graduate students and assistants and disparaging remarks about Siudzinski. Dr. Robinson told Siudzinski to but these matters in writting and after reviewing the case, Dr. Robinson concurred with Siudzinski that Dr. Sedlak's contract should not be renewed. There was a meeting between Dr. Sedlak and Dr. Lassiter which has been previously referred to in the body of facts, specificallv the meeting between June 2, 1976 and June 10, 1976. In that meeting Dr. Lassiter offered Dr. Sedlak the opportunity to make charges against Dr. Siudzinski for his alleged improper conduct. Lassiter stated that he would remove the Chairman if it was a true claim and proceed to terminate Dr. Sedlak for cause if the charges of improper conduct with a student wore false. Sedlak did not bring a charge. An examination of the evidential facts indicates that the recommendation of the non-renewal of the Petitioner's contract, (1) was not based upon a constitutionally impermissible reason, (2) was not violative of any of the Petitioner's property rights and (3) complied with written standards, criteria, and procedures prescribed by the Board of Regents and university regulations. The briefs filed by the parties have been examined and the elements of those briefs which are deemed to be meritorious have been incorporated into the findings of fact of the undersigned.
Recommendation It Is recommended that the Respondent, University of North Florida, not renew the Petitioner's contract of employment with the University of North Florida beyond June 15, 1977 and that the Petitioner be found unentitled to restoration of rights and privileges previously enjoyed before the recommendation of non-renewal of his employment contract with the University of North Florida. DONE AND ENTERED this 10th day of June, 1977, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of June COPIES FURNISHED: Mr. Anthony Demelas American Federal of Teachers 160 College Street Burlington, Vermont Delbridge L. Gibbs, Esquire Post Office Box 447 Jacksonville, Florida 32201 Dr. Joseph Sedlak 5336 Windemere Drive Jacksonville, Florida 32211 Kenneth A. Megill Florida Education Association/United 208 West Pensacola Street Tallahassee, Florida 32304
Findings Of Fact The Business of Respondent The complaint alleges the Respondent admits and I find that the Respondent is a public employer within the meaning of Section 447.203, Florida Statutes. The Labor Organization Involved The Respondent disputes the complaint allegation that the Charging Party is an employee organization with the meaning of Section 447.203(10) of the Act. Evidence adduced during the course of the hearing establishes that the Charging Party is an organizational faculty at Brevard Community College which desires the betterment of teaching conditions at the college. It seeks to represent public employees for purposes of collective bargaining and in other matters relating to their employment relationship with the college. The Charging Party is registered with PERC and has petitioned PERC to determine its status as a bargaining representative. Testimony also indicates that employees are permitted to participate in the organizational affairs and a representation election was held on March 3, 1976, which Involved the Charging Party. Based on this undisputed testimony, I find that the Charging Party is an employee organization within the meaning of Section 447.203(10) of the Act. The Alleged Unfair Labor Practices Background Patrick D. Smith, is employed by Respondent as Director of College Relations and he also serves as the editor of a college communications organ called the Intercom. Smith's immediate superior is Dr. King, the College's President who has the final authority for determining the Intercom's content. The Intercom is distributed to faculty and staff members in their college mailboxes and is published weekly during the school year. The Intercom is printed in and distributed from Smith's office on campus. On January 21, 1976, Lewis Cresse (then the Charging Party's President and a BCC faculty member) called Smith at his office and advised that he (Cresse) would like to announce a meeting that the Charging Party would be having in the Intercom. Approximately one week later, Cresse met President King in the college's parking lot and specifically asked that the BCCFT (the Charging Party) be allowed to use the Intercom. King indicated that he had no intention of allowing the Charging Party to use the Intercom and it suffices to say that Smith denied Cresse the use of it for announcing a meeting that the Charging Party would soon be holding in the Intercom. It is by these acts, that the General Counsel issued his complaint alleging that the Respondent discriminatorily denied the Charging Party the use of the Intercom and the college bulletin boards as a means of communicating the Charging Party's announcements and meetings. In attempting to establish that the above acts constitute violations of Sections 447.501 and 447.301 of the Act, the General Counsel introduced testimony to the effect that the Brevard Vocational Association, an organization whose purpose is to maintain communications for the benefit of all vocational, industrial education instructors in Brevard County had been permitted useage of the Intercom. Evidence also established that individuals were allowed to advertise personal items which they desired to sell in the Intercom and that such useage included advertisements regarding rummage and garage sales and that the Brevard Chapter of Common Cause, an organization which seeks to improve the workings of government by making it more accountable to the citizenry had frequently utilized the college's bulletin system. The Respondent bases its defense on its position that including in the Intercom, a meeting notice for the Charging Party which not only gave the time and place of the meeting but also urged faculty members to attend would have possibly violated the Act, by giving illegal assistance to the union; and that in any event, the college was not required to run the employee organization's notice in a publication such as the Intercom. Smith informed Cresse of Respondent's decision not to permit the employee organization to use the Intercom as a communications organ and thereafter, no other requests to use Intercom was made by the employee organization. Based on Smith's undisputed testimony that he raised the issue with Dr. King, college President, whether the employee organization's request would be granted, and that he (King) raised the question with the college's attorney, I find that the Respondent's denial is an act which is properly chargeable to Respondent. In support of its position that the Respondent discriminatorily denied the Charging Party to utilize the Intercom, the General Counsel introduced the February 19, 1976 issue of Intercom which contained a statement to the effect that Lewis Cresse, a professor at the college, would be speaker at a monthly meeting of the Brevard Vocational Association. Another item included in the Intercom was a meeting notice for the American Welding Society wherein it was announced that Sam Reed was Granted permission to announce a meeting for the society. In both examples, it was noted that the Brevard Vocational Association and the American Welding Society are organizations which the Respondent's administration encouraged faculty and staff members to participate in and for which the college reimbursed employees for expenses resulting from out-of-town meetings. Respondent's position is that it works closely with the society in that it fulfills its educational mission by preparing instructors which ultimately fulfills the college's mission. The remaining complaint allegations concerns the issue of a discriminatory denial to the employee organization of access to the college's bulletin Boards. Evidence reveals that the college has a well established procedure for the approval of documents to be posted on the college's bulletin boards and that such procedures are enforced. Prior to posting, they must be approved by Mike Merchant, Manager of the Student's Center and that approval takes the form of either a rubber stamp which indicates approval which is thereafter initialed by Mr. Merchant, or he writes the work "approved" on the document with his initials and the date. The facts relative to this allegation stems from a request by the Charging Party to post campaign materials on bulletin boards throughout the campus. Dr. Kosiba, provost of the Cocoa Campus informed Mr. Merchant that this request should be denied and it was. This request was also denied based on Respondent's position that it was not obliged to honor union requests to post union meeting notices on its bulletin boards and further that the items requested were "promotional materials" which were in truth "highly controversial campaign literature intended to gain support for the union in the then upcoming election." The items introduced were (1) a bumper sticker which encouraged employees to vote for the union and (2) a red, white and blue document covered with banner, stars and an eagle entitled "working draft of proposed agreement." To sustain the complaint allegations, it must be shown that (1) the Charging Party made a request to use the Respondent's communication facilities which in this case involved the Intercom and its bulletin boards and a denial of such request, (2) that similar requests had been approved of a similar nature and (3) that other alternative means of access were not available to the Charging Party. As to the first point, there is no question but that the Charging Party requested and was denied permission to use the Respondent's bulletin boards and its communications organ, the Intercom. However, the record evidence fails to establish that the Respondent had honored similar requests by other organizations in the past. In fact, all of the evidence tends to establish that with respect to the items here in dispute, Respondent vigorously opposed unionization, as was its right, and to have permitted the Charging Party to use the bulletin boards and its communications organ here would have been tantamount to a passive approval of the very ideas to which it had vigorously objected to. Furthermore, records evidence established that the union had abundant opportunity and did in fact communicate extensively with the employees. Among these other alternative means were: The college permitted the Charging Party to hold campus wide meetings for the faculty and staff on campus during daylight hours. The college provided a bulk distribution table conveniently located near the post office which was regularly visited by faculty and staff members. The college had an established policy which would have permitted the Charging Party to designate a single bulletin board for the posting of announcements. The employee organization was able to communicate extensively with faculty and staff by the circulation of numerous documents that were delivered to staff offices. (See Public Employer's Exhibits #3 - #24). Via the "faculty and staff directory", the employee organization had access to all names, home addresses and phone numbers of all members of the bargaining unit. (See Public Employer's Exhibit #26). The employee organization had available the campus newspaper THE CAPSULE, for meeting notices, announcements, etc. Local newspapers disseminated in the Brevard County area reported extensively on the union's campaign and activities. (See Public Employer's Exhibit #24(a) through (t)). Based thereon, I find that the Charging Party had numerous alternative means to communicate with the employees and the record is void of any circumstantial evidence that the rights of employees were interfered with, restrained or otherwise coerced by the Respondent's conduct as set forth above. I shall therefore recommend that the complaint filed herein be dismissed in its entirety.
The Issue The issues to be resolved in this proceeding concern whether the Respondent discriminated against the Petitioner as to her race and age, and by retaliation, by terminating the Petitioner from her employment.
Findings Of Fact The Petitioner, Edna Lee Long, was a long-time employee of Chipola College. She was employed for approximately 35 years by the College until her resignation on or about November 1, 2007. Her resignation was the alternative she selected to avoid termination. Chipola College, the Respondent, is a public higher education institution located in Marianna, Florida. It employed the Petitioner as a "Department Associate, Library Services" at the time of her resignation. She was hired in 1972 to be employed in the library and was employed there since that time, until she left employment. The College maintains a policy governing its information networks and use of the internet. The policy governs all computer and internet usage by College employees, using College facilities and networks. The policy prohibits the viewing of sexually explicit material by employees. The intent of the policy is to avoid harmful viruses that could pose a security risk from third party access to secure information, including confidential student records. It is inferred from the evidence that the policy is also intended to assist and maintain a certain moral standard in employees employed in positions of trust, and in helping to prevent violations of law in connection with what might be potentially viewed or downloaded as sexually explicit material. While violations of this policy by students carries disciplinary implications, those measures are essentially designed to remove a student's internet or College network use privileges, on College computers, if it is violated, rather than more severe consequences. With regard to faculty and staff policy violations, however, a zero tolerance policy is in effect. Employees are held responsible for confidentiality of their computer user-name, access to their computer user account and keeping their assigned passwords confidential. The Petitioner acknowledged receipt of and understanding of this policy and agreed to abide by it as to use of networks and the internet. The policy provides that all individual computer accounts are for the sole use of the single individual for whom the account was approved. Users of the network, internet or other online services are responsible for protecting the network's security by keeping their passwords confidential, not using another's account, nor letting their own accounts be used by another. They are required to report all security violations, or policy violations, to the management of the College, in the person of its network administrators. Matthew White is the College's Network Coordinator and has responsibility to monitor internet usage on College computers. This is accomplished through the policy by the use of computer monitoring software and protocols. The software is designed to search for certain keywords, terms or phraseology which might characterize a violation of the above-referenced policy. If any of the keywords or terms surface from any website addresses, a report is generated which is reviewed by Mr. White at least once per week. If the report indicates that a computer at the College accessed unauthorized websites with certain of the keywords contained in the software and protocol, Mr. White convenes an investigation to learn which computer and which person accessed the objectionable site or material. Once the investigation is concluded, an incident report is prepared by Mr. White and he submits his findings to his supervisor. Eventually it is submitted to the Human Resources departmental office for further attention. On October 23, 2007, the Petitioner was scheduled to work the night shift at the library. She left work and picked up her son at his high school and returned with him to the library. He was going to stay with her at the library while she finished her work that evening, during which time he was to study and take a practice ACT college entrance exam. He was to take the practice test online and so he had to access the internet to do so. By her own admission, the Petitioner used her user name and password to "log him in" to the required website, using her office computer which had been assigned to her. The Petitioner admitted that she knew that this was violative of College policy. The evidence does not reveal that her password had been disclosed to any other person. After the Petitioner logged her son onto her computer, she returned to the circulation desk to continue her work. Her son thus had access to and operated her computer for approximately one and one half hours. During a significant portion of this time the Petitioner was not able to view her computer where her son was sitting. During this time period, many sexually explicit materials and pornographic materials were viewed on the College network from the Petitioner's computer, by a person logged in under the Petitioner's username and password. There is no dispute that significant numbers of sexually explicit and pornographic images were viewed by this means. Evidence presented by the Respondent demonstrates a complete list of the internet sites and usage from the Petitioner's computer, during the relevant time period when the Petitioner's son had access to the computer and the pornographic sites were viewed. The computer website use history also indicates that the college preparatory practice examination was accessed during the same general time period as the pornographic websites. The Petitioner was unable to explain the presence of the graphic websites on the website history of her computer. Her son denied any such use or viewing of such websites, according to the Petitioner. Clearly however, the ACT test site and the pornographic websites were viewed on the same computer, at the exact times when the Petitioner's son was admittedly logged on to the Petitioner's computer, with use of her password, on the College network. The explanation that the Petitioner's son may have viewed the pornographic materials in question played no part in the employment decision involved in this case, however. There was no evidence presented that the Petitioner, or any other person, ever told her supervisors, or College administrators of the explanation for the presence of the pornographic images and materials viewed prior to this hearing. The Petitioner simply denied her own involvement. The automatic monitoring software referenced above, resulted in the generation of a report concerning the referenced internet usage for October 23, 2007, which was triggered by certain keywords which showed potential violations of the referenced policy. Mr. White became aware of this monitoring report and conducted an investigation, with the resulting incident report, at the conclusion of the investigation. Under the subject policy, this is a standard procedure for handling suspected violations of the policy. Respondent's Exhibit 2, in evidence, shows the keyword that initiated the investigation which led to procedures being followed which enabled Mr. White to determine which computer had been used to access illicit images or materials. Thereafter, Mr. White researched the Petitioner's computer and searched for internet files. He created a log of the internet files from the Petitioner's computer, printed evidence of that usage, and confirmed the user name and password used for the Petitioner's computer and entered that information into his report. The website and pornographic images shown in that report are not simply spam e-mail received randomly or accidently from a third party. This is because Respondent's Exhibit 1, in evidence, shows actual internet usage and website traffic, originated from the Petitioner's computer and not merely received from a third party. The incident, in effect, involved active searching by the user of the computer during that relevant time period. The log, for example, shows illicit material was searched with the keywords "anime" and "porn" and the resulting websites that were viewed from that computer, derived from that search. There is no question that the items shown in Respondent's Exhibit 1 are very graphic and are not random "popup" images which appeared without being searched for. Mr. White also established that the Petitioner's password was used in accessing the sites. He concluded that an individual was actively looking at pornographic sites for about 45 minutes on the Petitioner's computer, using her user name which also required her password to access. In the absence of further explanation, the College administrators believed that the Petitioner had accessed the sites herself. Mr. White informed his supervisor, Dennis Everett, of the situation and submitted his report. It was soon thereafter brought to the attention of Karan Davis, the Associate Vice- President for Human Resources. Both White and Everett came to Ms. Davis with the incident report and the usage log for the Petitioner's computer and informed her of the inappropriate use of that computer with the Petitioner's username and password. Ms. Davis then determined that the Petitioner was working during the times in question, in the library, when the sites were viewed and her account thus accessed. She therefore determined that a violation of the subject policy had occurred. Ms. Davis then conferred with the College president who made the decision to either terminate the Petitioner or give her an opportunity to resign or retire. Ms. Davis approached Ms. Long on November 1, 2007, with the incident report, a sample of the internet usage from her computer, and a termination letter from the president. The Petitioner decided to accept retirement from her position rather than termination and is thus receiving retirement benefits at this time. Contrary to the Petitioner's belief, expressed in her testimony, there is no persuasive evidence that the Petitioner was targeted or that there was any conspiracy related to use of her password by others, possibly in the College administration, to, in effect, "plant" illicit materials or images on her computer in order to generate a reason for her termination. There is no persuasive evidence that her computer was accessed by a third party (other than her son) or that her password- protected security with regard to her computer was breached. The monitoring process used by Mr. White and the administration to monitor the College network, or the evidence regarding it, does not show evidence of a virus or a mistake made in that process. There is no credible evidence to show that the Petitioner's password was used by Mr. White or any other person in or out of the College administration. Only the Petitioner knew, or should have known, her password. If the password had been re-set by a third person using her computer, she would have known about it the next day. Moreover, even if Mr. White or others in the administration had access to her password, the un-refuted evidence shows, by her own admission, that the Petitioner used her password to give her son access to her computer and the internet on October 23, the day in question. It is very unlikely that, had Mr. White or others in the College administration intended to "frame" her or "plant material" on the Petitioner's computer for nefarious reasons, they fortuitously and coincidently selected that same day, and one and one-half hour time period to do so. If they knew her password, and intended to use it for such purposes, they could have done so anytime over a period of days, weeks, months or years. Ms. Davis's testimony is uncontradicted in showing that the College was not conducting any investigation of the Petitioner until Mr. White and Mr. Everett approached Ms. Davis concerning the violations shown on the Petitioner's computer history for October 23, 2007. In fact, the Petitioner was given consistently good employee evaluations by the College for the entire time period between the 1997 discrimination complaint, related to salary, and 2007. THE RETALIATION CLAIM The Petitioner has contended that she is being retaliated against by the employment action taken because of a 1997 charge of discrimination that she filed against the College, while she was an employee, with the Florida Commission on Human Relations. That controversy stemmed from her perceived pay inequity. It was resolved, however, by an agreed-upon settlement, which resulted in her receiving an appropriate pay raise at the time. Since that time, although she has met with and discussed salary issues with her superiors or supervisors, she has made no other formal complaints concerning salary issues or other issues. The Petitioner has conceded that her complaints or requests about pay, during the interim period of time since 1997, were not based on age or race issues and admits that she never filed any charge of discrimination concerning any salary issues since 1997. Ms. Davis was not shown to have retaliated against the Petitioner and had no knowledge of the 10-year-old complaint at the time the subject employment action was taken, or at least she had no recollection of it. Mr. White was not employed at the College in 1997 and had no knowledge of the previous complaint to the Commission. The Petitioner received favorable employment evaluations between 1997 and 2007 and received the regular cost of living salary increases in the same manner as other employees during that period of time. None of the evidence presented by the Petitioner showed any race or age-related issue concerning salary or pay grade treatment. Some employees were hired who were assigned some of the Petitioner's duties, but those were employees with more qualifications than the Petitioner. The Petitioner, at the time of the hearing, did not have a degree. The Petitioner contends that the results of a pay study, conducted by the College, were discriminatory. She apparently raised a concern about purported pay inequity sometime during the period 1999 through 2000 (and reiterated by her later). She sought pay equity and upgrading of her position in discussions with her supervisors. She was told to wait while a third-party consultant, hired by the College, completed a pay and salary range study. Ms. Davis told her that no position would be re-classified until after the study was completed. As a result of this study the "Department Associate" position was approved in October 2000 and the Petitioner was moved into that position with that job title in 2001. She did not receive a salary increase, however, at that time. The salary consultant's study developed revised position descriptions and included a market study for ascertaining appropriate pay or pay ranges for those positions. The consultant set ranges for those positions at the College and the recommendations were apparently adopted by the College. It was determined that if a particular employee was earning a salary which fell within the approved range then the employee was deemed to be appropriately paid. The Petitioner did not demonstrate that she was outside of an approved pay range for her duties and did not establish that the study, nor any of Petitioner's objections to her pay grade amount, had anything to do with the employment action taken on November 1, 2007, at issue in this case. It is noteworthy that only College employees who were receiving salaries below the minimum pay range for their job descriptions received any salary increases. There were also white males at this time who did not receive pay increases for that same reason, because they were already earning salaries at or above the minimum of their pay range for their job descriptions, as was the Petitioner. The Petitioner maintains that the facts surrounding a Southern Association of Colleges (SACS) accreditation study showed discriminatory motives on the part of the College directed at her. In essence, she contends that the SACS study showed that the College had misrepresented to SACS that the library was fully staffed when it was not. There were only five employees when the accreditation standards called for seven employees, under the circumstances prevailing at the time. The College then added the necessary number of employees and, upon receiving its accreditation, apparently in late October 2007, immediately thereafter terminated the Petitioner. That subjective belief on the part of the Petitioner has not been supported or corroborated by any persuasive evidence, however. There was no demonstrated relationship between the employment action taken against the Petitioner and the accreditation or results of the study. Although the Respondent has not hired for the Petitioner's position as yet, it still has a larger library staff than it did when the fault was found by SACS as to library staffing, during the accreditation study. There is no proven relationship between the Petitioner's announced and contemplated entry into the DROP program and the subject employment decision. There was no convincing proof that the employment decision had anything to do with her announcement about entering the DROP program versus the investigation made by the College concerning the Petitioner's computer usage or use of a password to allow another to use her computer wrongfully. The Petitioner has not established persuasive evidence which would show that the policy concerning computer and internet usage was discriminatorily applied. The Petitioner has shown that no similarly-situated comparator employees, outside her protected class were treated more favorably, either because of race or age. There were three similar instances shown by the evidence to have occurred at the College. No employee in those instances was treated differently than the Petitioner. Ms. Davis investigated and enforced a policy as to the similar violations in the same manner. All three comparator employees involved were given the opportunity to resign, retire, or be terminated. None of them was given a warning on a first offense. Those three comparators were not within the Petitioner's protected class because they were Caucasian. Two were Caucasian males and one was a Caucasian female. The males were, respectively, 46 and 61 years of age and the female was None of those comparators was given a second chance before termination or constructive termination. The Petitioner's belief otherwise was based upon hearsay and unsubstantiated rumor. Ms. Davis was directly involved in the employment actions taken against those comparator employees and established that no warning was given to any of them before they were terminated. No employee outside the Petitioner's protected class has been hired to replace her in her former position. In fact, her former position is still vacant. In summary, there is no preponderant, persuasive evidence to show that the Petitioner's resignation or retirement, which was a constructive termination, was based on age, race, or retaliation for engaging in earlier protected activity as envisioned in Chapter 760, Florida Statutes. There is no persuasive evidence that discrimination of the type complained of was committed by the Respondent against the Petitioner. It does appear, from the facts established by the evidence in this case, that the termination decision was a harsh one. The Petitioner had a consistently favorable employment record with the College and, certainly, if any employee was entitled to a warning before the ultimate penalty was exacted by the College, given the facts of this case, she should have been so entitled. It is true that, at the time of the termination, the College administrators apparently did not know that the Petitioner's son had been using the computer at the time in question. However, in the de novo context of this proceeding, since the discrimination claim was filed, the College has become aware of the fact that, although the Petitioner used her password wrongfully to log her son onto the College computer system and Internet, that the Petitioner herself had nothing to do with accessing the illicit websites at issue. This fact, coupled with the Petitioner's long-time good employment record with the Respondent shows, based upon the facts of record at least, that the employment decision was unduly harsh. No actionable discrimination of the type raised in this case was proven, however.
Recommendation Having considered the foregoing findings of fact, the conclusions of law, the evidence of record, the candor and demeanor of the witnesses and pleadings and arguments of the parties, it is, therefore, RECOMMENDED: That the Petition for Relief be dismissed in its entirety. DONE AND ENTERED this 25th day of November, 2009, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of November, 2009.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is recommended that the complaint be dismissed for the reason that Petitioner did not meet his burden of demonstrating that the tenure decision reviewed herein was unlawfully reached. Respectfully submitted and entered this 28th day of May, 1976, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: President Cecil Mackey Office of the President University of South Florida Tampa, Florida 33620 David A. Maney, Esquire Gordon and Maney, P.A. Suite 2919, First Financial Tower Tampa, Florida 33602 D. Frank Winkles, Esquire Shackleford, Farrior, Stallings Evans First Financial Tower Post Office Box 3324 Tampa, Florida 33601
The Issue The issues to be resolved in this proceeding concern whether an unlawful employment practice was imposed upon the Petitioner by the Respondent, based upon her race, through a denial of her tenure and resultant termination from employment, as well as whether the Petition for Relief was timely filed, and therefore jurisdictional.
Findings Of Fact The Petitioner, at times pertinent hereto, was an Assistant Professor of Business Education. She was employed by the Respondent, FAMU and had worked in that capacity for a number of years since 1988, prior to which she had been employed by the Respondent University as an instructor. The Respondent, FAMU, is a university which is a part of the State of Florida University system, administered by the Board of Governors of the State University System, as well as its own Board of Trustees. The Petitioner was employed by the Respondent since 1983. She began as an instructor but was promoted to Assistant Professor of Business Education in 1988. In January 1999, she began working in a tenure-earning position as an Assistant Professor in the College of Education's Department of Business and Technology Education. She also served as chair of the department from 1998 through 2004. Florida Administrative Code Rules 6C-5.940(1)(e) and 6C3-10.211(5)(a) allow a period of six years during which one situated as the Petitioner, in a tenure-earning position, in continuous, full-time service, must earn and be granted tenure. If tenure is not earned and granted during that period, the Respondent must give notice to such an employee that further employment beyond the end of the seventh year of employment, without tenure, is not possible. The Petitioner applied for tenure on September 17, 2004. That tenure application was denied, which engendered the dispute involved in this proceeding. Prior to that application, however, at some point during her employment in a tenure-earning position, the Petitioner had previously applied for tenure, but the previous application had also been denied. That denial was presumably with leave for her to re-apply for tenure at a later time during her six year tenure-earning time period. After the Petitioner began her employment she received a copy of the applicable tenure criteria. The tenure criteria for scholarly publication require that a tenure candidate show that at least three publications by that candidate have at least been accepted for publication or have actually been published. Publications include books, monographs, and articles in national, regional, state or local journals, which meet peer review requirements. The publication requirements also mandate additional publication credit, which may include individual citations in quotations in a text or credits for scholarly endeavors. The requirements also contain the condition that at least two papers must be presented at state, regional or national professional meetings. The Petitioner's tenure application was submitted on September 17, 2004, and included references to three publications used by the Petitioner as meeting the publication requirements for tenure: a) a project for spring 2005 entitled "Professional Report Writing" with reference to Thomson Publishing Company; b) a 2005 project entitled "English and Grammar Skills Review for Business" also with reference to Thomson; and c) a 2005 project entitled "Charles Spencer Smith," with reference to the "Oxford Press." During the hearing, in her Exhibits 10 and 11, the Petitioner presented the cover pages of two of the projects, the "Professional Report Writing" text, as well as the "English and Grammar Skills Review for Business" text, in an attempt to prove compliance with the publication requirement for tenure. There was no showing, however, that the Respondent was provided with any documentation by the Petitioner during the tenure application process showing that these publications had been accepted by publishers for any of the projects. In September 2004, the Tenure and Promotion Committee within the College of Education (COE) was composed of Chair- Person Dr. Mary Newell, Dr. Arland Billups, Dr. Bernadette Kelly, Dr. Maria Okeke, and Dr. Theresa Shotwell. Dr. Shotwell did not vote on the Petitioner's tenure application to avoid the appearance of impropriety because she was chair of the department to which Petitioner belonged at the time. The COE Tenure and Promotion Committee considered the tenure application of the Petitioner and a secret ballot was held, resulting in a unanimous vote against granting tenure. The four members who testified in this hearing stated that they were not motivated by considerations of race when they considered the Petitioner's application. Once the individual college tenure and promotion committee votes on a tenure application, the matter is elevated for consideration by the University-Wide Tenure and Promotion Committee (University Committee). That committee considered the Petitioner's application for tenure on January 18, 2005, and voted to recommend approval of the application for tenure by a vote of 10 yeas, 1 nay, and 2 abstentions. The University Committee then considered the Petitioner's application for promotion from Assistant Professor to Associate Professor, on February 23, 2005. That promotion apparently requires approval of tenure status, because the committee voted to recommend denial of the application for the promotion. During the time the Petitioner's tenure and promotion applications were pending, Dr. Larry Robinson served as the Vice-President of Academic Affairs and as Provost of the university. Dr. Robinson reviewed the Petitioner's tenure application after the University Committee and recommended against granting her tenure. His decision, according to his testimony, was not racially motivated, but rather he explained that the Petitioner's application was recommended to be denied by him because he to thought it lacked sufficient documentation of scholarly publications. The Interim President of the Respondent University during the time the Petitioner's tenure and promotion applications were pending was Dr. Castell Bryant. Dr. Bryant was responsible for making a final review or consideration at the University level, taking into account recommendations of the tenure committees reporting to her. She then had the duty to nominate for tenure, or to decline nomination, to the University's Board of Trustees. The Board of Trustees had the authority to make final decisions concerning tenure applications. The Board would not consider a tenure application without a nomination by the University President. Dr. Bryant did not nominate the Petitioner for tenure to the Board of Trustees. She informed the Petitioner by letter of June 22, 2005, that the Petitioner's application for tenure was not approved for submission to the Board of Trustees. Dr. Bryant's letter to Dr. Young, in which she denied tenure, seems to indicate that Dr. Bryant was under the misapprehension that the University Committee had voted against recommending tenure when, in fact, it had voted in favor of tenure. Nonetheless, Dr. Bryant declined to nominate the Petitioner for tenure to the Board of Trustees, which act constituted a final denial, subject to the Petitioner's review rights concerning the decision. Dr. Deborah Austin was the Provost and Vice-President for Academic Affairs after Dr. Robinson left that position in September of 2005. She was requested to review the Petitioner's tenure denial, so Dr. Austin requested a "step-one grievance" reviewer, Dr. Charles MaGee, to review the Petitioner's tenure application. Dr. McGee found that the Petitioner's application did not satisfy the College of Education's tenure criteria (concerning scholarly publications) but he did recommend that the Petitioner actually receive tenure based upon her many years of service. Dr. Austin, however, did not agree with his assessment. She stated that the requirements for tenure don't provide for a substitution of the tenure criteria concerning scholarly publications and sponsored research, for years of service. In her letter of December 5, 2005, to the Petitioner Dr. Austin stated this reason for disagreement with Dr. McGee's assessment. She informed the Petitioner that this was the second time that she had applied for tenure and that, indeed, most faculty members are not given more than one opportunity to apply for tenure at the University. In that letter she also informed the Petitioner that she could file an appeal of the decision with Dr. Bryant within 30 days of receipt of the "step- one response" or file for an Administrative Proceeding with the Division of Administrative Hearings. She also advised the Petitioner of the steps to take in order to file a request for a proceeding before the Division of Administrative Hearings. Dr. William Tucker who testified on behalf of the Petitioner, and who has participated in faculty tenure review committees during his years at FAMU, pointed out that Dr. Bryant, the Interim President, had somehow misunderstood the university committee's vote. Dr. Tucker, however, indicated that he agreed with Dr. Austin that 22 years of service does not suffice as a criterion for granting tenure, although he did not agree with Dr. Austin's conclusion on the issue of tenure. The Petitioner sent a letter to Dr. Bryant requesting an appeal of Dr. Austin's decision (to Dr. Bryant) on January 4, 2006. She enclosed with that letter the cover pages for two of her projects and indicated that she thought they would serve as documentation for two of three publications needed for tenure. On April 3, 2006, Dr. Bryant sent a letter to the Petitioner as a follow-up to a meeting between those two on March 8, 2006, regarding re-consideration of the Petitioner's tenure application. Dr. Bryant indicated in that letter that, after thorough review of her tenure application package, Dr. Bryant found no reason to reverse the tenure decision previously made. The Petitioner contends that a comparator employee, Dr. Nancy Fontaine, was given an additional year to apply for tenure when she failed to achieve tenure and that the Petitioner was not accorded that opportunity. Dr. Fontaine is white. The Petitioner thus maintains that Dr. Fontaine was treated better than she and is a comparator employee outside her protected class. The Petitioner's evidence, however, does not establish that Dr. Fontaine and the Petitioner are actually similarly- situated employees. The Petitioner was not sure why Dr. Fontaine was initially denied tenure, but stated in her testimony that Dr. Fontaine was given another year to write an article or whatever she needed to do to qualify for tenure. The Petitioner did not, however, show that Dr. Fontaine lacked the same number of scholarly publications that the Petitioner lacked at the time of the tenure application, or that lack of publications was even the reason for Dr. Fontaine's initial tenure denial. She expressed no clear information in her testimony or other evidence as to what frailty, or degree of it, attended Dr. Fontaine's tenure application which was initially denied. Moreover, the Petitioner had a six-year period, as would any university personnel in tenure earning positions, to apply for tenure and then to re-apply if tenure were not granted on the first effort. The Petitioner, however, during that six- year period did not satisfy the Respondent's written scholarly publication requirement. The Petitioner adduced no persuasive evidence to show at what point in her tenure-seeking effort Dr. Fontaine was when she was denied tenure, and then given an additional year to earn tenure. It may be that Dr. Fontaine had a substantial portion of her six-year allowable period for tenure-earning still ahead of her. The evidence does not show. In any event, although the Petitioner attempts to compare the results of Dr. Fontaine's grievance process regarding her tenure denial to the Petitioner's application process, denial, and ultimate result, by way of showing disparate treatment, the evidence still does not show that Dr. Fontaine is a similarly-situated employee. When she was denied tenure, the Petitioner asked for a review of that decision and was granted one. As a result of that review, Dr. McGee recommended her for tenure, but acknowledged that she did not meet the requirement for scholarly publication. His recommendation had no binding effect, in any event, with regard to the Provost's and the Interim President's ultimate decision on the matter. Despite his recommendation, Provost Austin and Interim President Bryant chose not to grant tenure to the Petitioner on the basis of her publication deficiencies. Dr. Fontaine, on the other hand, used the complete grievance process under the university rules to file a complaint against the university pursuant to Florida Administrative Code Rule 6C3-10.232. During this process Dr. Fontaine requested additional time to apply for and earn tenure and, as a result, in a settlement of the dispute by settlement agreement, Dr. Fontaine was given another year to apply for tenure. The Petitioner, however, although being informed by Provost Robinson in his September 1, 2005, letter to the Petitioner that she could use that process, chose not to do so. The Petitioner also conceded that she did not request additional time to satisfy tenure requirements. Therefore, the Petitioner and Dr. Fontaine are not truly comparable and similarly-situated employees in the above- referenced particulars. Parties settle litigation for many reasons. Often the motivations are grounded in practicalities, such as limitation of litigation expenses balanced against the perceived likelihood of a successful litigated result. There is no evidence that the decision by FAMU to enter into a settlement agreement with Dr. Fontaine, whereby she was accorded additional time to qualify for tenure, was predicated, in any way, on Dr. Fontaine's race. There is no sufficiently detailed evidence to support a finding that the factual circumstances of Dr. Fontaine's tenure application, and its grant-versus denial consideration, were substantially similar to that of the Petitioner's.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the candor and demeanor of the witnesses, and the pleadings and the arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered by the Florida Commission on Human Relations dismissing the Petition in its entirety. DONE AND ENTERED this 25th day of June, 2008, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of June, 2008. COPIES FURNISHED: Mary L. Young Post Office Box 5452 Tallahassee, Florida 32314 Elizabeth T. McBride, Esquire Florida A & M University Office of the General Counsel Lee Hall, Suite 300 Tallahassee, Florida 32307 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Glen Bassett, Esquire Renee S. Gordon, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399
The Issue Should Respondent's tenure status be removed and he be terminated from employment with Hillsborough Community College because of the matters set out in the Amended Statement of Charges and Petition For Dismissal filed in this matter?
Findings Of Fact At all times pertinent to the matters in issue herein, the Petitioner, Hillsborough Community College, was a public institution of higher education, with four campuses, two extension centers, three environmental centers, and several other operations located in Hillsborough County, Florida. Respondent, Professor Joseph P. Boyle, was a tenured faculty member on the instructional staff located at the Dale Mabry campus. He has been with the College for more than 20 years. The College's Board of Trustees ordinarily meets once a month at the Administrative Center on Davis Island. The meetings are open to the public, are publicized at least a week in advance, and are based upon a written agenda. Frequently, members of the public attend the meetings as do some faculty members, administrative staff and the press. The College President and the College Attorney also attend. At these meeting, the Board generally treats policy matters, expenditures, approval of consultant contracts, and audit reports, and there is also a provision for public comment. It is not at all unusual or inappropriate for Board members to be contacted by students, faculty members or the public about school matters. Joaquin M. Campo, the President and Chairman of a Tampa engineering firm, served as Board President from July, 1990 to July, 1991. He has been contacted by outsiders about matters and when that happens, he tries, as best he can, to follow up on the contact. It is his practice to respond to any personal contact and to any signed letter which, he immediately forwards to the College President for investigation. To the best of his recollection, Respondent had previously called him about something into which he made inquiry and thereafter, Respondent began to communicate with him regularly on a variety of matters. This did not annoy him at all, and in each case, he tried to get the answer to the Respondent's problem. On August 27, 1990, Mr. Campo received a letter from the Respondent complaining about comments purportedly made by President Paloumpis. If true, these allegations would be considered serious. Professor Boyle followed the first letter with phone calls and repeated additional letters, as a result of which, Mr. Campo asked him to come up with some hard evidence in support of his allegations. Campo made this request several times, and no such evidence was ever forthcoming. Finally, Campo asked the College's Auditor, Mr. Watkins, who reports directly to the Board of Trustees, to look into Boyle's allegations and report what he found. Mr. Campo chose the Auditor so there would be no chance of improper influence being asserted by anyone else. At the same time, Mr. Campo also contacted the Respondent and asked him to cooperate with Mr. Watkins. By letter dated September 13, 1990, he reiterated that request in writing. At no time did Professor Boyle indicate he would not cooperate with the Auditor. At the time he brought the Auditor in, Mr. Campo had not formed any opinion as to Boyle's allegations. Sometime later, in February, 1991, Mr. Campo received another letter from Respondent complaining about the mechanics of selection for appointment of the head of a department at the college. When he looked into these allegations, he found them to be untrue and, in fact, that that faculty member ostensibly appointed, Dr. Adams, had not been so appointed and had never applied for the position. Mr. Campo so responded to Mr. Boyle in writing and thereafter received another letter from the Respondent, dated February 22, 1991, which in a disrespectful and berating manner, scolded Mr. Campo for his reply and demanded an apology. Because this letter was incorrect and insulting, Mr. Campo advised Professor Boyle of his feelings. As it appears, however, this faculty member, Dr. Adams, was subsequently appointed Department head. Thereafter, by letter dated March 13, 1991, Mr. Boyle requested Mr. Campo resign as Chairman of the Board of trustees, citing alleged dereliction of duty and referring to nonexistent secret letters. That same day, Mr. Campo wrote to Professor Boyle and again asked him to come forward with proof to support his allegations and set a deadline of March 22, 1991 for him to do so. In writing this letter, Mr. Campo was trying to do his duty as Chairman to either prove or disprove allegations of wrongdoing and put them to rest. He got no response to the letter or any of the proof requested. All during this time, Mr. Watkins also was having his difficulties in dealing with Mr. Boyle regarding the investigation he had been requested to undertake. Immediately after being asked by Mr. Campo to look into Boyle's allegations, Watkins received a call from Mr. Boyle in which Boyle said Mr. Campo had asked him to meet with Watkins and provide the information. Boyle agreed to do so, but after several days, Watkins still had not again heard from Boyle. Though Watkins tried to contact Boyle, he found Boyle had no home phone and was only on campus at certain hours. Mr. Watkins went to the Dale Mabry campus during Boyle's office hours. When he arrived at Boyle's office, he found the door closed but he could hear voices from within. He knocked twice and a voice called out, "Who are you and what do you want?" When Watkins identified himself, Boyle opened the door, finished the phone call he was engaged in, and spoke with him. Boyle said he had not had time to collect the background information but that his letter to Mr. Campo stated the facts. When Mr. Watkins pointed out these were not facts but conclusions, Boyle agreed to get facts and said he would get back with Watkins in one week. Their agreement called for Professor Boyle to come to Watkins office with the information, but one day before the scheduled meeting, Boyle called to postpone it. Nonetheless, he showed up the next day without any independent proof, reasserted his position that his allegations spoke for themselves, and questioned Mr. Watkins' authority to conduct the inquiry. When Mr. Watkins explained his charter, Boyle dropped the subject. Mr. Boyle never did come up with any supporting proof of his allegations even though Mr. Watkins gave him several extensions of time. In fact, Boyle failed to contact Mr. Watkins again and when Watkins tried to reach him and couldn't, he again went to Boyle's office to see him. After Watkins waited for a lengthy time during which Professor Boyle dealt with students, Boyle finally stated he didn't have any time to deal with him. He stated he had been told by an unnamed party not to talk with Watkins, and left. Mr. Watkins reported to Mr. Campo both orally and in writing regarding the results of his efforts. Mr. Campo advised Mr. Watkins not to pressure Boyle too much because they really wanted the information. Finally, on November 6, 1990, Mr. Watkins again wrote to Professor Boyle asking for documentation supporting his allegations. Mr. Boyle neither responded with the documents nor requested more time, and Mr. Watkins has never received any documentation from Boyle in support of his charges. While Boyle cooperated at first, his attitude deteriorated to the point he was arrogant and uncooperative, and considering Watkins was working at the direction of the Chairman, even insubordinate. Finally, on November 19, 1990, Watkins wrote to Mr. Campo outlining the results of his efforts and the problems he encountered dealing with Professor Boyle. Thereafter, he was released from this investigation and has not, to this day, received any supplemental information from Professor Boyle. By letter dated March 27, 1991, Mr. Campo ordered Mr. Boyle to meet with him on April 9, 1991 at 2:00 PM in the College Administrative Office on Davis Island and to bring whatever support he had for the charges he had made. Mr. Campo made it clear this was not an optional meeting, and the Respondent's failure to appear would be considered to be insubordination. Nonetheless, Professor Boyle did not appear for the meeting nor did he either call in advance to seek a postponement or provide a subsequent explanation for his absence. On April 11, 1991, Mr. Campo again wrote to Mr. Boyle, pointing out the failure to appear on April 9 was insubordination, asking for an explanation in writing, and directing him to appear in person at the Administrative Office on Davis Island on April 22, 1991 at 2:00 PM. This letter also advised Boyle that if he could not make it, he was to advise Campo by phone no later than noon on April 22. Boyle neither showed up nor explained. April 9, 19, and 22, 1991 were work days when Professor Boyle could be expected to perform his duties. As Chairman of the College's Board of Trustees, Mr. Campo had the authority to direct any college employee to meet with him. His directions to Boyle to meet with him on those days were, therefore, lawful orders. Mr. Campo was present at the time and place scheduled for the meetings which he directed Professor Boyle to attend. To this day, Boyle has not explained his failure to appear as directed. Campo sought those meetings with Professor Boyle to get the facts surrounding the allegations Boyle had made. They were not designed to create a situation for which disciplinary action to get rid of Professor Boyle could be initiated. As a result of Professor Boyle's failure to appear as directed, Mr. Campo asked President Paloumpis to look into the matter to see if any action was appropriate. As a result, in June, 1991, Dr. Paloumpis recommended to the Board of Trustees that action to remove Boyle for insubordination be initiated. Mr. Campo agreed. At the open Board meeting where this matter was addressed, the Board, pursuant to discussion of the matter which had been published in advance on the regular publicized agenda, unanimously approved the recommendation to dismiss Professor Boyle. The Board meeting was publicized in advance along with the agenda, and Professor Boyle had the opportunity to appear before the Board to defend or explain his actions. He failed to do so. There is no evidence of any attempt to discharge Boyle because of his outspokenness. When Dr. Paloumpis received the copy of Professor Boyle's letter of complaint which Mr. Campo sent to him, he, also, wanted the matter looked into. At no time did he attempt to impede Watkins' investigation or, in fact, to speak with Watkins about it. As an administrator, he has been accused by others before of making bad decisions and of being unfair. He never takes such accusations personally, nor did he act on this allegation. His initiation of disciplinary action against Professor Boyle was taken at Mr. Campo's suggestion because of Boyle's insubordination. He reviewed the investigation and the succeeding failures by Boyle to meet with Mr. Campo and satisfied himself that grounds for discipline existed. Only then did he set the wheels in motion. On April 30, 1991, Dr. Paloumpis wrote to professor Boyle directing him to come to Paloumpis' office at 8:30 AM on May 3, 1991, normal business hours, to provide a doctor's certificate because Professor Boyle had a habit of calling in sick or having someone do it for him. Under the terms of the contract between the College and the union, the College has the right to have the faculty member submit to an independent medical examination under certain conditions. He also directed Boyle to contact his department head, Dr. Adams, by May 3, 1991, to set up the appointment with the doctor. Professor Boyle did not show up at either place on May 3, nor did he contact Dr. Paloumpis or anyone on his staff about it. Thereafter, on May 6, 1991, Dr. Paloumpis wrote to Professor Boyle asking for an explanation of his failure to appear as directed by him and by Mr. Campo. In this letter, he also gave Mr. Boyle an order to contact Ms. Bone, an executive assistant in Dr. Paloumpis' office to set up a time, at Professor Boyle's convenience, to meet with Paloumpis at Paloumpis' office. He also warned Professor Boyle that if he failed to appear, he, Paloumpis would recommend Dr. Boyle's suspension as a disciplinary action. Professor Boyle has never responded to this letter or complied with the directions therein. Dr. Paloumpis thereafter prepared the Petition for Dismissal and Explanation of Rights form and tried to serve them on the professor by regular US mail, by certified mail, and by process server. That copy sent by regular US mail was not returned undelivered, but the copy sent by certified mail was not accepted. The process server was able to effect service of the Petition on Professor Boyle, at his home, at 1:20 PM on June 28, 1991. It must also be noted that some of the letters to Professor Boyle which requested meeting with him were, in addition to being sent by mail, included in the envelope with his individual pay checks. When these checks were cashed, it was clear indication that Professor Boyle had received the meeting notices. None of the letters, all of which were also sent by US mail, were ever returned undelivered except for the copy of the Petition sent by certified mail. In addition to all the above, in the Fall of 1991, Dr. Paloumpis learned that several students had complained about Professor Boyle's behavior. Paloumpis received a call from the Dale Mabry campus that complaints had been received which had been put in writing and referred to the vice president in charge of that campus. When he asked what was going on, the complaints were referred to him. As a result of these complaints, Professor Boyle's supervisors recommended to Dr. Paloumpis that Boyle be placed on administrative leave because the pattern and manner of his relationship with his students indicated it would be better were he out of the classroom. Dr. Paloumpis' primary concern was for the students, many of whom wanted to drop the course they were taking from Professor Boyle. To do so, however, would be, for many of them, a financial and academic harship. Paloumpis wanted to avoid this, and as a result, Professor Boyle was relieved of his teaching duties and an adjunct professor brought in to teach the remainder of the course. This solved the students' problems and the complaints stopped. As a result of this reported aberrant classroom behavior by Professor Boyle, Dr. Paloumpis prepared the additional charges which were incorporated in the Amended Petition to Dismiss which he also submitted to the Board of Trustees. By memo dated September 23, 1991, Dr. Paloumpis notified Professor Boyle he was being placed on administrative leave with pay and that the new charges were being added to the Petition. At the same time, he notified Professor Boyle of his right to attend the Board meeting at which the additional charges were to be discussed. The charges were made an agenda item which was published and distributed. Professor Boyle did not appear at the Board meeting but was represented by counsel, Mr. Merkle. The Board heard the evidence relating to the additional charge and the presentation by Mr. Merkle on behalf of the professor. It nonetheless voted unanimously to add the new charge to the Petition for Dismissal. At no time has Professor Boyle ever given Dr. Paloumpis or any representative of the College any explanation of his allegedly aberrant classroom behavior which prompted the additional charge, save the presentation by Mr. Merkle at the Board meeting.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore, recommended that Professor Joseph P. Boyle be discharged from employment as a tenured faculty member at Hillsborough Community College for gross insubordination. RECOMMENDED this 19th day of March, 1993, 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 19th day of March, 1993. COPIES FURNISHED: John M. Breckenridge, Jr., Esquire 2502 Rocky Point Road, Suite 225 Tampa, Florida 33607 Professor Joseph P. Boyle P.O. Box 327 Champlain, New York 12919 Robert W. Merkle, Esquire (Courtesy Copy) Merkle & Magri, P.A. 750 West Courtney Campbell Causeway, #1120 Tampa, Florida 33607 Martha K. Covington College Attorney Hillsborough Community College P. O. Box 31127 Tampa, Florida 33631-3127
The Issue The issue presented for determination in these causes, pursuant to F.S. Section 120.56(1), is whether or not the "12 hour F rule," F.A.C. Rule 6J- 5.56(11)(b), and/or the "mandatory grade curve rule," F.A.C. Rule 6J-5.56(5)(c), constitute either an invalid exercise of validly delegated legislative authority, or an exercise of invalidly delegated legislative authority. The major contention of petitioner is that the respondent failed to comply with the notice requirements of F.S. Section 120.54(1)(a) when it adopted the rules in question. No other issues, including the wisdom or the applicability of such rules, are appropriate in a Section 120.56 proceeding for an administrative determination of a rule.
Findings Of Fact Based upon the oral and documentary evidence adduced at the hearing, the following relevant facts are found: The petitions filed herein allege that petitioner was academically dismissed from the law school because of the "12 hour F rule" and that he received a failing grade in Tax 601-602 because of the "mandatory grade curve rule." After some student input, the faculty of the FSU law school adopted the "12 hour F rule" and the "mandatory grade curve rule" in 1973 and 1975 respectively, prior to the effective date of Chapter 75-191, Laws of Florida. Effective June 26, 1975, Chapter 75-191, Laws of Florida, included units of the state university system within the confines of the Administrative Procedures Act, Chapter 120 of the Florida Statutes. Pursuant thereto, the respondent, Florida State University, began the process of adopting new and repromulgating its existing rules. The Dean of the FSU Law School was instructed by respondent to submit all of the law school rules to the respondent so that they could be properly promulgated along with other FSU rules. The Dean complied with this request. On August 20, 1975, and again on August 22, 1975, legal ads were placed in the Tallahassee Democrat concerning respondent's intent to adopt proposed rules. Notices were also published, making reference to the aforesaid more complete notice, in the Miami Herald, the St. Petersburg Times and the Jacksonville Times-Union. The August 20th notice in the Tallahassee Democrat announced that a hearing would be held on September 3, 1975, and set forth for each rule the purpose and effect of the rule, a summary of the rule, general authority for the rule and the law implemented. The challenged College of Law Rules numbered, as 6J-5.56, were included in this legal ad and were in substantially the same form as that previously adopted by the law school faculty. By letter dated August 13, 1975, Mr. Mike Beaudoin, respondent's Director of Informational Services, notified respondent's three foreign branches in Florence, Italy, London, England and the Canal Zone of the proposed rules. Gail Shumann, a staff assistant to respondent's Vice President for Academic Relations, assisted in the rule promulgation process. Utilizing a list furnished her by the Coordinator of Student Organizations, Shumann sent by campus mail a "notice of intent to file rules" to all listed registered student organizations existing on January 17, 1975. Such notice was also posted in the personnel office. This notice announced that the rules would be adopted on September 10, 1975, that a copy of the notice of the proposed rules was available in the Office of Student Government, that a copy of the rules was available at the information desk in the Strozier Library and could be obtained at cost from the Division of University Relations and that a hearing on the proposed rules would be held on September 3-5, 1975. The notice was dated August 18, 1975. The list of registered student organizations furnished Ms. Shumann by the Coordinator of Student Organizations did not contain the name of the student body president and listed the former president of the student bar association. A secretary for the student body president was unable at the time of the hearing to find or to recall whether she had received copies of the notice of intent to adopt rules. She testified that she did not have the opportunity to go through all of her files and that it was possible she received such notice. The president of the student bar association, who was not on campus during the summer quarter, could not recall having seen the notice of intent, but testified that it was possible that it came through his office while he was off campus. At least fourteen days prior to the scheduled hearing, Informational Services Director Beaudoin directed a reliable employee to post the notice of intent upon respondent's fifteen official bulletin boards. On August 20, 1975, respondent's rules were filed with the Joint Administrative Procedures Committee. Public hearings were held on September 3, 4, and 5, 1975, on the FSU campus for the purpose of hearing comments concerning the proposed rules. Few persons attended these hearings. The rules were filed with the Secretary of State on September 10, 1975, and became effective on September 30, 1975.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Criminal Justice Standards And Training Commission enter a final order: Dismissing, as moot, the petition of Margherita Renzi insofar as it seeks a determination of prospective eligibility for salary incentive monies under Section 943.22, Florida Statutes (Supp. 1984); and Dismissing, as having no merit, the petition of Margherita Renzi insofar as it seeks a determination of retroactive entitlement to salary incentive payments before October 1, 1984, under Section 943.22, Florida Statutes (1983). RECOMMENDED this 2nd day of April, 1985, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of April, 1985.
The Issue The issue in this case is whether the Petitioner, Gloria Godbolt, should be deemed, pursuant to Rule 22A-7.010(2), Florida Administrative Code, to have abandoned her position of employment with the Respondent, University of Florida.
Findings Of Fact Based on the stipulations and admissions of the parties, on the exhibits received in evidence, and on the testimony of the witnesses at hearing, I make the following findings of fact. At all times material to this case, the Petitioner, Gloria Godbolt, was a Career Service employee of the Division of Finance and Accounting of the University of Florida. The last position held by Petitioner with the University of Florida was that of a Clerk Specialist in the Payable and Disbursement Services Section of the Division of Finance and Accounting. Petitioner last reported to work at the University of Florida on April 25, 1986. On April 27, 1986, the Petitioner called her sister, Ella Godbolt, collect from the Broward County jail. The Petitioner asked her sister to call the Petitioner's supervisor and tell the supervisor that the Petitioner was sick. On April 28, 1986, and again on April 29, 1986, Petitioner's sister, Ella Godbolt, called the Petitioner's office to notify the Respondent that the Petitioner was sick and would not report to work on each of these two days. On April 30, 1986, Ella Godbolt told the Petitioner's supervisor, Grace Strawn, that the Petitioner was sick, that the Petitioner had a doctor's appointment for the following day, and that the Petitioner would not be at work for the rest of the week. The Petitioner called her sister the following Sunday night, May 4, 1986, and asked her sister to call the Petitioner's supervisor and tell the supervisor that the Petitioner would not be at work that week, and that the Petitioner would explain everything later. On Monday, May 5, 1986, Ella Godbolt again talked to Grace Strawn on the telephone and informed Strawn that the Petitioner would not be at work that week and that Petitioner would call later in the week to explain the reasons for her absence. The Petitioner did not call Grace Strawn during the week of May 5, 1986. From May 6, 1986, through May 16, 1986, both dates inclusive, neither the Petitioner nor anyone on her behalf communicated either orally or in writing with the Respondent to report that the Petitioner would be absent from work or to explain the reasons for the Petitioner's absence. The Petitioner was advised by her attorney Michael Swan, that she should not report the fact of her arrest and confinement to anyone. However, that advice was not given to her until approximately one week after her incarceration. From April 26, 1986, through May 16, 1986, the Petitioner was incarcerated in Broward County, Florida, and, because of that incarceration, was unable to report to work on any of those days. During her period of incarceration, the Petitioner had access to a telephone which could be used to make "collect" long distance calls and she also had available the means necessary to write and mail a letter to her employer. The Petitioner neither called nor wrote to her employer to report her absence or to request appropriate leave. Instead, the Petitioner arranged for her sister to call the Petitioner's employer during the Petitioner's first week of absence to falsely report that the Petitioner was sick and to request sick leave for her absence. Based on these false representations, the Petitioner was granted sick leave for the first week of her absence. On May 17, 1986, which was a Saturday, the Petitioner returned to Gainesville. Upon learning that some of the employees in her department were working that day, the Petitioner went to her workplace to ask about her job. Her supervisor, Grace Strawn, told the Petitioner that it was out of her hands. The Petitioner did not explain to Strawn that she had been incarcerated and had not been sick. Again, on May 19, 1986, when the Petitioner talked with Cynthia Fidalgo Evans, Associate University Controller, asking what she could do to get her job back, she misrepresented to Ms. Evans that she had been hospitalized in Broward County. It was not until May 30, 1986, two weeks after the Petitioner had been released from jail, that the Petitioner corrected the record by stating in a letter to William Zeanah, Assistant University Controller, that she had been incarcerated and not sick as previously reported. The Petitioner was aware that she had to let her employer know if she was going to be absent from work and obtain appropriate leave for her absence. She was also aware that three consecutive workdays of unauthorized leave were considered job abandonment by the Respondent. On September 15, 1980, when the Petitioner was first employed, she signed a statement acknowledging receipt of the Career Service Employee Handbook of the University of Florida. This handbook provides at page 27: If you must be unavoidably absent from your job (that is, other than planned vacations or personal business times that have been approved in advance), let your supervisor know as soon as possible on the first day of absence why you must be absent and when you expect to return. If your anticipated return date changes, keep your supervisor informed. Unapproved absences for three consecutive workdays are considered job abandonment and, therefore, voluntary resignation. . The Respondent has consistently notified employees who have been on unauthorized leave for three consecutive workdays that they are considered to have abandoned their jobs and to have voluntarily resigned from the Career Service system. The Respondent needed to know if and when it could expect the Petitioner to report to work in order to make appropriate arrangements to have her work done in a timely fashion during her absence. As a Clerk Specialist in the Payable and Disbursement Services Section of the Division of Finance and Accounting, the Petitioner processed the necessary documents to pay vendors for the foods and services they provided to Respondent. Petitioner's task was the last step performed by Respondent before submitting vendors' invoices to the State Comptroller for payment by the issuance of warrants. The Petitioner was therefore aware of the importance of her job and of Respondent's need to have her job performed within specified time constraints. Petitioner was further aware that the Respondent is required by law to process vendors' invoices during a 15-day period and that failure to do so could result in penalties being imposed against the Respondent and disciplinary action taken against employees who persistently fail to process vendors' invoices in a timely fashion. Due to Petitioner's long and continuous unreported absence, Petitioner's supervisor had to work two consecutive Saturdays with other members of her staff in order to process vendors' invoices within the five-day period allotted to her office to accomplish that task.
Recommendation Based on all of the foregoing, I recommend the entry of a Final Order concluding that the Petitioner, Gloria Godbolt, was appropriately terminated for abandonment in accordance with Rule 22A-7.010(2)(a), Florida Administrative Code. DONE AND ORDERED this 4th day of May, 1987, at Tallahassee, Florida. MICHAEL M. PARRISH Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of May, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-3929 The following are my specific rulings on each of the proposed findings of fact submitted by each of the parties. It will be helpful to a complete understanding of the rulings which follow to know that there was a great deal of conflict in the testimony of some of the witnesses who testified at the hearing. Most, if not all, of the conflicts in the testimony have been resolved in favor of the version of the facts advanced by the Respondent. In resolving the conflicts in the testimony, I have taken into account a number of matters, the most important of which are: how logical or illogical the competing versions were, whether the testimony was consistent or inconsistent with other reliable evidence, whether the witness had an interest in the outcome of the case, the extent to which the witness' credibility was impeached by prior inconsistent statements, if any, and, of course, the demeanor of the witness while testifying. It should also be noted that the finding that the Petitioner was the instigator of the false reports of her illness that were passed along to the Petitioner's employer is a finding based on the most reasonable inference to be drawn from the evidence. Rulings on Petitioner's proposed findings Accepted in part and rejected in part. Rejected portion relates to what Ella Godbolt told the supervisor. Accepted in part and rejected in part. Rejected portion relates to what Ella Godbolt told the supervisor. Accepted in part and rejected in part. Rejected portion relates to what the Petitioner told her sister to do. Accepted in substance with minor modifications in the interest of accuracy. Rejected as not supported by credible evidence. Accepted, with additional findings in the interest of clarity and accuracy. Rejected as irrelevant to the disposition of this case. Rejected as irrelevant to the disposition of this case. Rejected as not supported by credible evidence and as contrary to the greater weight of the evidence. Rejected as not supported by credible evidence and as contrary to the greater weight of the evidence. Accepted in substance. Rejected as subordinate and unnecessary details. Accepted in substance. Accepted in substance. Accepted, with additional findings in the interest of clarity and accuracy. Rulings on Respondent's proposed findings Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. First four sentences of this paragraph are rejected as subordinate and unnecessary details. Last two sentences are covered in the explanatory comments at the beginning of this Appendix. Accepted. Accepted. Rejected as subordinate and unnecessary details. Accepted. Accepted, with exception of last sentences and quoted material which are rejected as subordinate and unnecessary details. First sentence of this paragraph accepted. Second sentence rejected as unnecessary surplusage. Rejected as irrelevant and unnecessary. COPIES FURNISHED: Carla D. Franklin, Esquire Rodney W. Smith, P.A. Post Office Box 628 Alachua, Florida 32615 Isis Carbajal de Garcia, Esquire Associate General Counsel 207 Tigert Hall University of Florida Gainesville, Florida 32611 Augustus D. Aikens, General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Adis Vila, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550
