The Issue The issues presented for determination in this matter are as follows: Can the status of tenure be denied, as opposed to being granted or postponed, during the fifth year of employment? Was the tenure decision in this case based upon constitutionally impermissible reasons or a result of noncompliance with written standards, criteria or procedures prescribed by the Board of Regents or university regulations? Did respondent wrongfully determine that petitioner's employment contract would not be renewed beyond June of 1975? Was petitioner wrongfully terminated before he received a due process hearing?
Findings Of Fact Based upon the admissible oral and documentary evidence adduced in this cause, the following pertinent facts are found: Prior to coming to the University of South Florida in 1969, petitioner's educational and employment background was as follows. In 1951, petitioner received his high school diploma from a night school in Cincinnati, Ohio. After he was discharged from the United States Air Force in 1957, he worked as a commercial pilot, a Kentucky State Trooper, a sales executive, independent consultant and instructor for several private industries, and was active in the Civil Air Patrol. Petitioner completed his Bachelor of Science degree in Commerce in 1966 and his Master of Arts degree in Economics in 1967 at the University of Kentucky. During his masters program, he was awarded a nonteaching graduate fellowship and was admitted to Omicron Delta Epsilon, an economics honorary fraternity. In 1967, petitioner entered the Ph.D. program in marketing, minoring in finance, at the University of Iowa in the College of Business Administration. While attending school between 1967 and 1969, petitioner had an academic fellowship and taught an introductory course in marketing at the University of Iowa. He was enrolled in this program when he applied for a teaching position in marketing with respondent in March of 1969. In response to his application for a teaching position at the University of South Florida, petitioner received a letter from the Chairman of the Marketing Department stating in part, "This assistant professorship opening calls for a person holding the Ph.D. or D.B.A. degree, or expecting completion of the degree in 1969 or early 1970." On the Personnel Data Form required to be completed by respondent, petitioner stated that he would be available in September of 1969, preferred a full-time teaching and research position as assistant professor of marketing and expected to receive his Ph.D. from the University of Iowa in February or June of 1970. Petitioner's appointment as Assistant Professor of Marketing in the College of Business Administration was confirmed by President John S. Allen in April of 1969, and he continued in that position until June of 1975 under six annual contracts. At the time of his appointment to USF in 1969, petitioner had completed the course work for his Ph.D. in the College of Business Administration at the University of Iowa, but had not yet completed all, of his comprehensive examinations. In 1970, petitioner was unsuccessful in two attempts to pass the economic theory comprehensive written examination. Because of this and his low grades, he was terminated from the Ph.D. program in the College of Business Administration. In June of 1970, petitioner enrolled in the University of Iowa College of Education doctoral program majoring in business education. He first failed the marketing examination in the College of Education, but later passed it with reservations. Having completed his comprehensive examinations in that program, petitioner returned to USF to teach. The testimony and evidence is conflicting as to whether petitioner's colleagues and department chairman had knowledge that petitioner was no longer pursuing his Ph.D. degree in business administration. Many of petitioner's colleagues testified that they had no such knowledge. While his chairman stated that he knew of petitioner's educational status, he advised the USF Vice- President for Academic Affairs in March of 1974 that petitioner was pursuing his degree from the College of Business at the University of Iowa and that he was "not pursuing a degree in Distributive Education as was alleged." Petitioner's progress on his doctoral dissertation is somewhat in dispute. Apparently, in July of 1971, he submitted a research proposal entitled "Sales Training and Placement of the Disadvantaged," and an informal doctoral student seminar was held on July 28, 1971 to critique the proposal. However, in June of 1972, the Chairman of Business Education at the University of Iowa informed petitioner that "the next step in our program will be for you to develop your research proposal for your dissertation and submit it to me." There was no evidence that Petitioner has done any significant work toward the completion of his dissertation since the submission of his proposal in July of 1971, despite a written warning from his department chairman at USF in June of 1973 that "it is essential that you make substantial progress on your doctoral degree," and a memo dated January 17, 1974, from Dr. Kallaus at the University of Iowa Business Education Department stating that "the dissertation just has to have 'top billing' in order for you to complete your program within the time requirements." Apparently, petitioner has until February of 1978 to complete his dissertation for the Ph.D. in the College of Education at the University of Iowa. Petitioner would still like to obtain his Ph.D. degree but does not know when he will do so. He states that he does not place great emphasis on the actual worth of a dissertation and considers it to be just another research project. While one witness testified that writing a dissertation had not helped him much, every other witness who had written a dissertation and attained his Ph.D. felt that the writing of a dissertation was extremely valuable in teaching, in grading papers, in relating to students and in the acquisition of research skills. There was testimony from two of petitioner's colleagues in the Department of Marketing that in the Fall of 1971, petitioner asked them both if they would be willing to write a portion of his dissertation for him. These conversations were never reported to the Chairman, the Dean or any other person, with the possible exception of one other faculty member. Thus, it does not appear that this played any part in the tenure decision under consideration herein. Petitioner denied having ever asked anyone to write his dissertation. While he may have asked for help with the mechanics of using the computers or the refinement of statistics, the research proposal was already completed and thus he needed no further help, according to petitioner. As noted above, petitioner was continuously employed under annual contracts as an assistant professor of marketing, a tenure-earning position, from September of 1969 through June of 1975, and received pay raises each year. During this period of time, annual evaluations for the purpose of pay raises were performed. For the fiscal year 1972/73, petitioner ranked sixth out of eleven in priority for a pay raise. On a five point scale, the department chairman ranked petitioner three on teaching effectiveness, and four on research and creative activity, academic advisement, service and overall quality. For the fiscal year 1973/74, a committee consisting of five faculty members rated petitioner on a three point scale as a two in the areas of teaching effectiveness, research and creative activity, academic advisement, service and overall quality. The committee noted that the rating on teaching effectiveness was a high two, while the research rating was a low two. For the same year, petitioner was rated by his chairman as three in teaching effectiveness and two in the other four areas. Petitioner was again evaluated in July of 1975. The faculty evaluation committee rated him between 2.0 and 2.6 on a three-point scale in all five areas; and the chairman rated him as a one in all categories except service, for which petitioner was rated as a two. At the time petitioner was hired by respondent, the Florida Board of Regents and the respondent defined tenure as that condition attained through highly competent research and teaching, or other scholarly activities, length of service, and contributions to society. The guidelines for tenure from that time to the present include a requirement for a high degree of competency in the areas of teaching, research or other scholarly activities and service. It has also been a guideline that normally the faculty member shall have completed five years of continuous service and shall have attained the terminal degree before being eligible for tenure. In addition to these written criteria and guidelines for tenure promulgated by the Florida Board of Regents and adopted by respondent, tenure was discussed by various witnesses. It was opined that in order to receive tenure, a faculty member should be of above average competency in at least two of the three areas of teaching, research and service. Others stated that a faculty member should be above average in all three areas, unless he clearly excelled in one area. Still another felt that the faculty member should excel in all three areas before being granted tenure. Average was defined in terms of everyone in the profession, not merely those in one's particular department or college. It was explained that the importance of having a terminal degree is that such a degree implies that certain standards of competence have been met. The status of tenure is important in that it guarantees the faculty member academic freedom and it gives the University time to evaluate how the faculty member will use such freedom. The Dean of petitioner's College further felt that an important criteria or guideline to be used in determining tenure recommendations is the high probability of continued high quality performance and professional growth in the faculty member, as well as the availability of significantly better qualified people, at equal cost, outside the University. It was agreed that with the coming of a new Dean in the Fall of 1973, more emphasis has been placed on research in the College of Business Administration. In January of 1974, which was the middle of his fifth year of continuous employment at USF, petitioner was considered for tenure. Pursuant to this, he prepared what is known as a "tenure packet" for consideration by those who would be voting on the issue. AT this time, it was the practice for the tenured faculty members of the Marketing Department to review said tenure documents and vote by secret ballot as to whether the petitioner would be granted, denied or deferred tenure status. Comment was also solicited by the department chairman from the nontenured faculty members. At this point the chairman reviewed all materials presented and made his recommendation to the Dean of the College of Business Administration, and the Dean made his recommendation to the Vice-President for Academic Affairs. In this case, petitioner prepared his "tenure packet," utilizing a standardized form and supplementing it with additional materials and correspondence. Petitioner's "packet" was approximately one inch thick and was reviewed by all those casting a vote on the tenure issue. After reviewing said packet, the three tenured faculty members of the Department of Marketing unanimously voted to grant petitioner tenure. At least two of the three tenured members also wrote letters of recommendation on his behalf. Several other persons from outside the Marketing Department also wrote letters of favorable recommendation to the department chairman. The chairman also solicited the responses of nontenured department faculty members by means of a peer evaluation form. Apparently, these forms were not utilized by said faculty members in the manner contemplated. Some apparently did not respond at all, and those who did provide a written response did so by comments, rather than by assigning numerical ratings to the items for evaluation. One faculty member concluded that petitioner "is qualified in view of his outstanding relationships with the local business community." Another refused to pass judgment upon the tenure issue inasmuch as he felt tenure should be abolished. However, he did relate to the chairman that he felt that the research and writing presented in petitioner's tenure document was methodologically questionable. He also questioned the reliability of the survey taken by petitioner to support his teaching ability and the inclusion of formal and informal letters and evaluations dealing with the distributive education courses taught by petitioner through the College of Education (See Finding 12 below). This same faculty member wrote favorably of petitioner's accomplishments in the area of service, but concluded that petitioner "would perhaps find more satisfaction and more recognition of his accomplishments in the area of distributive education than in the Marketing Department." A third non-tenured faculty member suggested that there was a degree of bias with regard to the questionnaire soliciting comments regarding petitioner's teaching effectiveness and that it was impossible to determine whether the data obtained refers to marketing or distributive education courses. This faculty member also felt that petitioner's talents and interests lay elsewhere than in the Marketing Department and that one who would make a greater contribution to the Marketing Department could be obtained at a lower price. He therefore did not feel that petitioner should be granted tenure in the Marketing Department. A large portion of petitioner's tenure packet is composed of student comments received as a result of a questionable mailed by petitioner to his former students. Petitioner was of the opinion that evaluation of teachers by graduates after a period of time was more meaningful than the present student evaluations. Department funds were used to mail these surveys and petitioner prefaced it with a letter to his former students. This letter contained the following language: "Many times in class I said that you would never really know the value of your classes until later. Now it is later; and I need your help. As you know my teaching methods and objec- tives are rather controversial. My appli- cation for tenure and promotion must be submitted on January 15th, and I would like to include in this application your comments as to the effect (good or bad) if any, that I as a teacher have had on your career. If you have the time please include a short note on what you are doing. Teachers seldom know what happens to their former students. I want to thank you in advance for doing this on such short notice. Good luck." It was felt by most witnesses questioned on the subject that the use of such a cover letter and the form of the questions contained in the survey could produce only biased results. The chairman of the Marketing Department reviewed the materials discussed in paragraphs 9 through 12 above and recommended that petitioner be granted tenure, concluding that petitioner had maintained a consistent pattern of productivity over the past five years in teaching, research, writing, presenting programs and service. It was believed by the chairman that petitioner's efforts in all areas would continue at a rapid pace and that "it would be difficult if not impossible to replace this man with one so dedicated and with his unique talents considering his present rank and salary." The chairman praised his service activities and called him an innovative teacher. He remarked that "Professor Wallace is the only person in Marketing (other than Professor Stevens) who appears willing to work with Distributive Education or other units of the University on interdisciplinary programs." With regard to the area of research, the chairman remarked in part that "Some of his research efforts have been some- what misdirected to other than scientific or theoretical marketing per se, but the results of such efforts are applicable to Marketing Education, Distributive Education, and general Business Education. His research methodology is at times technically ques- tionable; however, he has been asked to pre- sent papers and be on discussion panels for the Southern Marketing Association and the American Marketing Association. His articles have appeared in refereed and non-refereed journals..." The Dean of the College of Business Administration reviewed petitioner's tenure packet, the secret ballot by tenured faculty members, letters of recommendation, comments by some nontenured faculty members, and the opinions and recommendation of the Department Chairman. The Dean recognized that petitioner had good rapport with students and had emphasized a practical approach in teaching by taking classes out to businesses. However, it was felt that petitioner's skills seemed "more in salesmanship and organizing ability than in academic analysis and scholarship" and that "he would be more at home practicing in the business world than teaching in the academic world." Dean Dye felt that what was lacking in the marketing faculty were persons evidencing a high degree of scholarship and noted that petitioner had not yet completed his doctoral studies. It was felt that good people, with terminal degrees and research drive were available and should be sought, and that it was not in the best interests of the University to grant petitioner tenure. Dean Dye did not philosophically disagree with petitioner's articles, but felt they were neither scholarly nor based on competent research methodology. The Dean has not seen any significant results done in the area of research by petitioner. As for the area of service, Dean Dye felt that petitioner's efforts were above average in quantity, but below average in quality. With Dean Dye's recommendation, the tenure documents were then sent to Dr. Carl Riggs, Vice-President for Academic Affairs. Dr. Riggs declined to recommend the granting of tenure in petitioner's case, thus supporting the recommendation of Dean Dye. When petitioner requested the reasons for his negative recommendation, Dr. Riggs restated the reasons stated or implied in Dean Dye's explanation of tenure recommendation. These were: "1) No terminal degree and lack of compen- sating experience or background. An apparent lack of scholarship, i.e., depth of knowledge in field, and scholarly productivity not sufficiently evident. Your strengths supplement rather than complement those of other faculty in this department and the need for complementation is greater. Interests of the Department and College better served by finding a replacement who can perform or perform better those functions needed by the Department of Marketing and the College of Business Administration." Riggs was of the opinion that the University could attract persons more qualified than petitioner and that petitioner had done no significant research in the area of marketing. While Dr. Riggs may have disagreed somewhat philosophically with the opinion-type articles written by petitioner, he thought they were refreshing. His decision to deny tenure to petitioner was not based on a difference of opinion with the views expressed in petitioner's writings, but rather because he felt petitioner's articles were not based upon competent research methodology. Riggs acknowledged petitioner's success in the area of service and distributive education. Riggs further stated that neither politics nor petty dislikes or jealousies within the College of Business Administration played any part in his consideration of whether petitioner should be granted tenure. The process of evaluation for tenure recommendation was thus completed, having travelled the following route: preparation by petitioner of his tenure packet; the favorable vote of the department's three tenured faculty members; the receipt of comments from some of the nontenured faculty; the favorable recommendation of the Department Chairman; the negative recommendation of the College Dean; and the negative decision of the Vice-President for Academic Affairs. Petitioner was thereafter timely notified on March 15, 1974, by the Vice- President for Academic Affairs that his employment would not be renewed after Quarter III of the academic year 1974/75, and that the last day of employment with the University would be June 19, 1975. Informal grievance proceedings within the university were thereafter instituted by petitioner. Failing to achieve a satisfactory result from such proceedings, petitioner filed his complaint seeking a plenary hearing. This complaint was forwarded to the Division of Administrative Hearings, and the undersigned Hearing Officer was ultimately assigned to conduct the plenary hearing. The evidence presented at the hearing does suggest that there was some unrest and difference of opinion within both the Department of Marketing and the College of Business Administration. It appears that the Marketing Department was divided into two factions, identified by witnesses as the "qualitative" and "quantitative" factions. There was also some dispute within the College regarding Dean Dye's hiring practices and criteria and guidelines for tenure decisions. While much time and evidence was devoted to the existence of these factions and disputes, it cannot be found from the evidence that their existence tainted the procedures for tenure evaluation in this case. The evidence adduced at the hearing clearly illustrates that petitioner's highest level of competence lies in the area of service to the community. He has built a good rapport with many Tampa businessmen and has organized various business meetings and seminars. Many of those businessmen who testified acknowledged that for the first time they were drawn to the University as a result of petitioner's efforts in a Top Management Seminar and a Career Development Program. Some members of the Marketing Department testified that petitioner was the outstanding member of the department in the area of service to the community. The Vice-President for Academic Affairs agreed that petitioner was doing one of the better jobs within the College of Business Administration in the area of service to Tampa businessmen. While a few members of the faculty did not feel that petitioner's presentation at the Top Management Seminar evidenced scholarship, most Tampa businessmen who testified praised petitioner's efforts as demonstrating a contemporary approach to business problems and a working, practical knowledge in the filed of marketing. With regard to petitioner's efficiency in the area of teaching, it has already been pointed out that petitioner received predominantly average to above average ratings by his peers over the six years in question. A number of his former students testified and concluded that petitioner was one of the best teachers they had ever had. They stated that they worked hard in petitioner's classes and learned more in his classes than in other classes. Some testified that petitioner's courses were more difficult and demanding then other business courses. Petitioner stressed the application, rather than the mere memorization, of theory and sent this students out to various businesses to prepare research projects. Some of his former students described him as dynamic, interesting, resourceful and well-prepared for class. Other faculty members thought petitioner to be sincerely interested in practical education and in helping his students. The graduating seniors of 1974 voted petitioner one of the top ten teachers of the University of South Florida. There was evidence that petitioner's student evaluations improved markedly in 1973. One marketing professor attributed this to the fact that petitioner stopped giving written examinations and his students received higher grades. The evidence illustrates that in 1972, petitioner's student evaluations were at approximately the college median level. In 1972, he gave his students 17 A's, 100 B's 34 C's, 4 D's and 11 F's. In 1973 his student evaluations were consistently above the college median level. In that year the grade distribution to students was 138 A's, 64 B's, no C's, 1 D and 1 F. Other reasons were, however, offered for the increase in high grades, such as student motivation, change of teaching methodology and the quality of student who registers for the course based upon the reputation of the teacher as being hard or easy. A faculty member who substituted for petitioner testified that petitioner's students had not read the course syllabus or the textbook. Others testified that. sending students to various businesses to do research projects was not innovative, and that other members of the marketing department utilized similar techniques. Of the three areas for evaluation, it was the conclusion of some that petitioner's weakness lies in the area of research and other scholarly activities in the field of marketing. His progress on his dissertation has been previously discussed. While he has written a number of published articles, the evidence shows that most of these can be classified as opinion articles or essays, rather than as articles based upon competent research methodology. Several articles and papers are in the area of business education, not marketing. There was some testimony that these articles, many of which are variations on the same theme, constituted comments on relevant social issues, and should not be measured on the basis of whether they are scholarly and methodologically sound. Yet, Petitioner attached his professional credentials to these articles and listed them in his tenure documents under the heading of scholarly publications. The Dean of the College of Business Administration and the Vice-President for Academic Affairs, who voted against petitioner for tenure, testified that the main reason for not granting tenure was lack of a terminal degree and lack of evidence of scholarly research. Although some disagreed philosophically with the articles written by petitioner, their vote to deny tenure was not based on this fact, but upon the fact that the articles did not display evidence of competency in scholarly research. Petitioner was instrumental in getting other marketing professors to write articles for Florida Trend Magazine, but he himself did not participate in the writing of the series of articles which appeared. Petitioner also listed in his tenure documents that he was working on a book. There was evidence that no progress, in written form, has been completed to date on said book, although petitioner stated in his tenure documents that "the basic research has been completed." Petitioner did obtain six teaching grants from the State Department of Education. However, these grants were in the area of distributive education or in the field of training teachers and were obtained through the College of Education, not the College of Business Administration. The evidence concerning petitioner's degree of competency in the area of research and other scholarly activities with regard to seminars and outside consulting work is conflicting. While many indicated they were pleased with petitioner's performance in the seminars and consulting work, others expressed displeasure with petitioner's performance. Petitioner has received recognition for his publications. He has presented papers to the Southern Marketing Association, and was nominated for the American Association of Collegiate Schools of Business - Western Electric Fund Award. These presentations were, however, more in the field of business or distributive education than in marketing.
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 the unlawfulness of the tenure and nonrenewal decisions reviewed herein. Respectfully submitted and entered this 26th day of ,January, 1976, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9676 COPIES FURNISHED: William D. Holland, Jr., Esquire Suite 304, First National Bank Building 215 Madison Street Tampa, Florida 32602 D. Frank Winkles, Esquire & William E. Sizemore, Esquire of Shackleford, Farrior, Stallings & Evans P.O. Box 3324 Tampa, Florida 3324 Dr. Cecil Mackey, President University of South Florida ADM 241 Tampa, Florida
The Issue The issue in the case is whether the Petitioner is entitled to licensure as a psychologist by the State of Florida.
Findings Of Fact On February 6, 1995, the Petitioner filed an application for licensure by examination as a psychologist in the State of Florida. During its regular meeting of February 9-11, 1995, the Respondent considered and rejected the Petitioner's application. By letter dated February 13, 1995, the Respondent notified the Petitioner that his application had been denied. On May 11, 1995, the Respondent filed a Notice of Intent to Deny the application. The Notice appears to have been signed on April 20, 1995. The Notice of Intent identifies the basis for the denial as follows: In voting to deny the application, the Board found that the applicant's program did not require coursework in biological bases of behavior, cognitive-affective bases of behavior, or statistics. Moreover, the program did not require an internship that met the requirements of Rule 59AA-11.0061(3)(j), F.A.C. Prior to commencement of the hearing, the parties resolved the issue related to coursework in the Petitioner's favor. The issue remaining for hearing is whether the Petitioner's educational program required an internship that met the requirements of the cited rule. The parties have stipulated that the Petitioner has 1660 of acceptable pre-doctoral internship hours. The Petitioner has also submitted 2340 hours of post-doctoral supervised experience. Post-doctoral experience may be used to augment pre-doctoral hours if the post-doctoral experience meets the requirements of Rule 59AA-11.003(30(j), Florida Administrative Code. The evidence fails to establish that any of the 2340 hours meet the requirements set forth for pre-doctoral experience. The evidence is insufficient to establish that, beyond those hours to which the parties have agreed, any of the Petitioner's remaining internship/experience hours meet the applicable requirements.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Agency for Health Care Administration, Board of Psychological Examiners, enter a Final Order denying the Petitioner's application for licensure by examination as a psychologist in Florida. RECOMMENDED this 19th day of December, 1996, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 19th day of December, 1996. COPIES FURNISHED: Dr. Kaye Howerton Executive Director Board of Psychological Examiners Agency for Health Care Administration Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Jerome Hoffman General Counsel Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building 3 Tallahassee, Florida 32308 Robert Jacobs, Pro Se 1114 Evening Trail Drive Wesley Chapel, Florida 33543 Allen R. Grossman Assistant Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: Petitioner Ronald H. Carpenter received his doctorate degree in 1966 from the University of Wisconsin. From 1966 through 1971, he was an Assistant Professor of Speech at Wayne State University. In 1971, he joined the Department of Speech within the College of Liberal Arts and Sciences at the University of Florida as an Associate Professor of Speech. In the 1976-77 academic year, petitioner requested and accepted a transfer from the Department of Speech to the respondent's Department of English, and became an Associate Professor in that department in 1977. Upon his transfer to the Department of English, five speech courses previously taught by the petitioner were also transferred to the Department of English. These courses pertained to rhetorical theory, political communication and speech writing. They are presently cross-listed as both English and Speech courses. Petitioner was also required, as are all faculty members within the English Department, to teach a course in the freshman composition program. At the time of his transfer from the Department of Speech to the Department of English, petitioner was fully advised and informed that any future promotion evaluations of the petitioner would be made by the Full Professors in the Department of English in accordance with the standards of that Department. In the 1980-81 academic year, petitioner requested promotion to the rank of Full Professor in the Department of English. This request was denied by the votes and decisions of the English Department's Full Professors, the Chairman of the English Department, the Tenure and Promotion Committee of the College of Liberal Arts and Sciences, the Dean of the College of Liberal Arts and Sciences and the Vice-President for Academic Affairs. Petitioner was advised that the prime reason for these negative determinations was that his scholarly publication record was not substantial enough to warrant promotion to the rank of Full Professor, and that further consideration for promotion should await the publication and review of a book-length manuscript which was currently in progress by the petitioner. Petitioner again requested promotion to the rank of Full Professor within the Department of English in the academic year 1981-82. By a vote of eleven to five, the Full Professors in the Department of English voted against petitioner's request for promotion. By letter dated December 15, 1981, the English Department Chairman, Melvyn New, informed petitioner that he would support the Department's vote and not recommend petitioner's promotion at that time. Chairman New further informed petitioner that a "Sizeable majority of the full professors believe the manuscript accepted by the Huntington Library should be in print and reviewed before promotion could be considered appropriate for you." (Joint Exhibit 2FF) By letter to the Dean of the College of Liberal Arts and Sciences, Charles F. Sidman, dated December 23, 1981, petitioner provided excerpts from outside letters of evaluation from leaders in his field and complained of the inability of those within the English Department to assess his research in his field. Dean Sidman was requested by petitioner to accept the evaluations and endorsements of the leadership in petitioner's field, to overrule the vote of the English Department and its Chairman and to send petitioner's name forward to the University Personnel Board with the Dean's endorsement. (Joint Exhibit 2GG) Thereafter, petitioner's request for promotion was considered by the College Committee on Tenure and Promotion, Dean Charles F. Sidman and the University Personnel Board. The College Committee, by a vote of seven to zero, voted against promotion, noting that petitioner had not yet demonstrated in his scholarly publications that he qualified for promotion. (Joint Exhibit 2LL) By a memorandum to the Personnel Board, Dean Sidman made the statements that "Dr. Carpenter is the author of a manuscript yet to be published by the Huntington Library, three book chapters and 22 refereed articles. Outside letters of evaluation are good, except for the one by Brock. His teaching is considered average and his service good. The major piece of scholarly evidence still absent from the record is a book-length manuscript. Dr. Carpenter has not been put forward for Full Professor because he lacked that essential contribution to his field, and it applies as well to Speech as it does to English. Indeed, it might well be argued that two book-length manuscripts are an appropriate standard for promotion to Full Professor in the Humanities disciplines. At any rate, Dr. Carpenter's status has not changed materially since last year. Even with an excellent rating in teaching and service, he would require at least one book to be considered seriously for promotion to Full Professor. He does not have it, therefore he should not receive serious consideration." (Joint Exhibit 2KK) The Vice-President for Academic Affairs, Robert A. Bryan, thereafter requested the University Personnel Board to review petitioner's qualifications for promotion. This request was made due to Vice President Bryan's uncertainty "about the knowledge of your field of those who have evaluated you at other levels of the University. Had your former colleagues in Speech negatively evaluated you, I would not send your papers forward. But your case is a very unusual one and I believe that it is appropriate that the University Personnel Board, a body that reviews literally hundreds of cases each year from all over the University, to render a judgment." (Joint Exhibit 2MM) By letter to petitioner dated April 19, 1983, Vice-President Bryan notified petitioner that the "Personnel Board found itself unable to override all of the previous negative decisions and voted with one abstention (mine) to uphold those previous decisions." (Joint Exhibit 2NN) Further, petitioner was advised that "The Board believed that since you had volunteered to become a member of the Department of English that you were bound to abide by that Department's criteria for promotion to Full Professor. Among those criteria is the stipulation that a candidate for Full Professor must have published at least one book. Since your book has not been published, the Department's criteria have not been met." (Joint Exhibit 2NN) The University's printed form for "Recommendation for Tenure, Permanent Status and/or Promotion" was revised in the 1981-82 academic year. While the prior form required the evaluator to compare the candidate with all others in comparable positions in the "appropriate department or unit" that he or she has known in the past ten years, the revised form required comparison with all others in comparable positions in the "field." This change was the result of the University's desire to upgrade the quality of its faculty by comparing each candidate for promotion with others in the field or discipline, as opposed to merely existing faculty members within the existing Department. The purpose of the change in wording was to geographically broaden the standard of comparison so as to encompass faculty members of other institutions who have attained the rank of distinction. The change in wording was not intended to mandate that only one involved in the same narrow area of specialization as the candidate for promotion could perform the evaluation for promotion or serve as the only basis for comparison. Most faculty members of the English Department, as well as any other department, have relatively narrow research specialties. While the evaluator may not be a specialist in the same area of research as the applicant for promotion, the evaluator is not thereby rendered incapable or unqualified to evaluate the applicant in the same general area on the basis of his writings, research and letters of recommendation from within and without the particular department or university. If the evaluator has little expertise in the applicant's narrow area of research, he may rely more heavily upon outside letters commenting upon the applicant's qualifications. However, the evaluator himself is required to make the decision as to the weight to be accorded such outside letters of recommendation. An applicant for promotion is required to demonstrate "distinction" in at least two of the three categories of teaching, research and service. "Distinction" is defined as meaning "appreciably better than the usual college faculty member of the candidate's present rank and field." Rule 6Cl-7.19(3)(b), Florida Administrative Code. Petitioner's publications include approximately twenty-four (24) articles in refereed speech journals and periodicals and the contribution of a chapter in three different books. In addition, petitioner is the sole author of The Eloquence of Frederick Jackson Turner, a book-length manuscript accepted for publication by the Huntington Library in October of 1981. The first galley proofs for that book were received by the petitioner in April, 1983. Publications by scholars in the area of speech are more likely to consist of monographs, journal articles and short papers as opposed to book- length works. While not an absolute criterion for promotion, members of the faculty of the respondent's Department of English typically have published one book by the time the rank of Associate Professor is achieved, and a second book- length manuscript by the time of promotion to Full Professor.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that petitioner's application for promotion to the rank of Full Professor within the Department of English for the 1981-82 academic year be DENIED. Respectfully submitted and entered this 7th day of September, 1983 in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of September, 1983. COPIES FURNISHED: Herbert T. Schwartz, Esquire SCHWARTZ & WILSON Post Office Box 1292 Gainesville, Florida 32602 Ralph D. Grabel, Esquire University of Florida 207 Tigert Hall Gainesville, Florida 32611 Judith S. Waldman, Esquire University of Florida 207 Tigert Hall Gainesville, Florida 32611 Robert Q. Marston, President University of Florida 226 Tigert Hall Gainesville, Florida 32611
The Issue The issue in this case is whether the School Board of Pinellas County (School Board) should accept the Petitioner's recision of her resignation from her position as a high school teacher and reinstate her to her former position on the ground that her resignation was given under legal duress.
Findings Of Fact During the 1992/1993 school year, the Petitioner, Deborah Green, taught high school in the GOALS (drop-out prevention) program at Dixie Hollins High School. In January, 1993, she applied for a year of medical leave of absence due to stress and stress-related symptoms. The School Board approved leave starting January 27, through June 11, 1993. Shortly after going on medical leave, the Petitioner was notified that a student had made serious accusations against her. One of the accusations was that the Petitioner freely told the student details about her romantic relationship with a Michael Miller, who was married and the principal of another Pinellas County high school. She contacted the student to find out what the accusations were and met with her principal and the student and his mother to discuss the accusation. At the meeting, the student recanted. The Petitioner left for Dallas, Texas, shortly after her leave began, but she continued to receive telephone messages locally through her friend and former housemate. Not long after the Petitioner left for Dallas, the student who had accused her, and then recanted, again accused the Respondent, alleging that he had recanted because the Petitioner had asked him to lie for her. When this happened, the principal of Dixie Hollins referred the matter to Stephen Crosby, Director of Personnel Services for the Pinellas County Schools. Crosby called the Petitioner at her local telephone number and left a message. When the Petitioner returned the call from Dallas, Crosby explained that he was investigating serious charges that had been made against her and that, as always in such circumstances, it was important for him to meet with her about them as soon as possible. The Petitioner declined, stating that she was not emotionally, mentally, or physically prepared at the time to handle the situation or the stress of the situation. She insisted that her meeting with Crosby be postponed. As an accommodation to the Petitioner, Crosby agreed to postpone the meeting, and the two agreed to meet on March 1, 1993. On or about February 28, 1993, on a return trip to Pinellas County, the Petitioner visited her school and left a written message for Crosby to tell him that she still was unable to meet with him and would not attend the scheduled March 1, 1993, meeting. Crosby did not get the message until the morning of the scheduled meeting. On receipt of the message, Crosby turned to the School Board's legal office for advice on how to proceed. Based on the advice of counsel, Crosby sent the Petitioner a letter stating that he viewed the delay in the interview until March 1 to be an unusual accommodation, since teacher interviews normally are conducted as soon as he becomes aware of the charges. He wrote that, since the Petitioner would not meet on March 1, as they had agreed, he would have to proceed exclusively on the basis of his interviews of students and others. In accordance with normal procedures, he also advised her that, unless she chose to resign by March 12, 1993, he would be recommending to the School Superintendent that he recommend to the School Board that the Petitioner be dismissed. On March 3, 1993, the Petitioner received Crosby's March 1 letter and wrote back in response to offer her resignation, effective June 11, 1993. In the Petitioner's own written words, she resigned "for my personal sanity and for the credibility of Michael Miller." Crosby processed the Petitioner's resignation to be considered at the March 24, 1993, School Board meeting. It is standard operating procedure to process resignations before their effective dates, if possible, so that replacement personnel can be hired. The School Board accepted the Petitioner's resignation (among others) at its March 24, 1993, meeting. The Petitioner tried unsuccessfully several times after March 24, 1993, to contact Crosby by telephone to rescind her resignation. She was unable to speak to him but was told that the School Board already had accepted her resignation and that it was too late to rescind it. In April, 1993, the Petitioner learned that the Florida Education Practices Commission of the Florida Department of Education also was investigating the allegations against her, notwithstanding her resignation. On or about June 3, 1993, the Petitioner returned to Pinellas County and met with a lawyer about getting her teaching position back and about defending her teacher certificate. On June 8, 1993, the lawyer wrote a letter to the School Board Attorney (which was received on or before June 11, 1993) purporting to rescind the Petitioner's resignation. It was not proven that the Petitioner had no choice but to resign from her position as a teacher between March 1 and March 12, 1993, due to her emotional, mental and physical condition at the time. As a result of her long-standing membership in the local teachers' union, the Pinellas Classroom Teachers Association (PCTA), the Petitioner knew that dues-paying members of the PCTA may be entitled to the services of an attorney, free of charge, in a teacher dismissal proceeding. She claimed that she did not know she still was entitled to free legal counsel after going on medical leave of absence as of January 27, 1993, and ceasing to pay union dues while on leave. However, there was no evidence that she inquired as to the availability of paid counsel until after the effective date of her resignation. Had she done so in a timely fashion, she would have learned before her resignation was accepted that she was entitled to the services of an attorney, free of charge.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the School Board of Pinellas County enter a final order dismissing the Amended Petition for Administrative Hearing. RECOMMENDED this 16th day of May, 1995, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 16th day of May, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-6074 To comply with the requirements of Section 120.59(2), Fla. Stat. (1993), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. 1.-5. Accepted and incorporated to the extent not subordinate or unnecessary. First sentence, accepted and incorporated. Second sentence, rejected as not proven. Third sentence, accepted but subordinate and unnecessary. Rejected as not proven that she spoke to Crosby more than once. Explaining the discrepancies between her testimony and his is problematic. But some of the telephone conversations she supposedly had with Crosby would have been on weekends (e.g., January 16 and 23, 1993), giving rise to a question as to the accuracy of her testimony. In addition, the Petitioner's own evidence suggested that her condition during this time period impaired her thought process and memory. Perhaps the Petitioner is counting unsuccessful attempts to contact Crosby as actual conversations with him. Rejected as not proven that the Petitioner acted on the advice of her physician in cancelling the March 1, 1993, meeting with Crosby. Otherwise, accepted and incorporated. Accepted and incorporated. First sentence, rejected as not proven. Second sentence, rejected as not proven that she resigned "under protest because of her inability to participate in the investigation due to her medical condition"; otherwise, accepted and incorporated. First sentence, rejected as not proven. See 7., above. (Some of the telephone conversations she supposedly had with Crosby during this time period would have been during the spring school holidays when all school offices were closed.) Second sentence, accepted and incorporated. First sentence, accepted but subordinate and unnecessary. Second sentence, rejected in part as not proven as to "rational decisions with respect to her employment"; otherwise, accepted but subordinate and unnecessary. Accepted but subordinate and unnecessary. Respondent's Proposed Findings of Fact. Accepted and incorporated to the extent not subordinate or unnecessary. Accepted but subordinate and unnecessary. Accepted and incorporated to the extent not subordinate or unnecessary. 4.-7. Accepted but subordinate and unnecessary. 8.-20. Accepted and incorporated to the extent not subordinate or unnecessary. Accepted but subordinate and unnecessary. Accepted and incorporated. 23.-26. Accepted but subordinate and unnecessary. (As to 25., the referee appeared to be referring to Green's medical leave of absence.) COPIES FURNISHED: Mark F. Kelly, Esquire Kelly & McKee, P.A. P. O. Box 75638 Tampa, Florida 33675-0638 Keith B. Martin, Esquire Assistant School Board Attorney Pinellas County Schools Administration Building 301 Fourth Street SW Largo, Florida 34649-2942 Dr. J. Howard Hinesley Pinellas County School Board 301 4th Street SW Largo, Florida 34640-3536 Frank T. Brogan Commissioner of Education The Capitol Tallahassee, Florida 32399-0400
The Issue Whether the suspension of Petitioner was for good cause shown as indicated in the letter of suspension dated August 19, 1976.
Findings Of Fact Ralph L. Wilson was suspended for a three (3) day work period August 20, 1976 through August 24, 1976. The certified mail letter to Mr. Wilson stated, "This suspension is caused by your unauthorized absence for the period August 10 through August 13, 1976." Appellant Wilson is an Accountant at Florida A & M University working under the direct supervision of William Schnitt, Acting Budget Officer at Florida A & M University. Vinod K. Sharma Associate University Comptroller at Florida A & M University, is the supervisor of William Schmitt. James R. Barrett, Comptroller of Florida A & M University, is the supervisor of Vinod K. Sharma. Appellant Wilson requested a leave of absence from his position to attend a church conference to be held in Lake City, Florida, on August 10-13 1976. His immediate supervisor, Mr. Schmitt, orally refused the request but advised Mr. Wilson that the denial could be appealed to Mr. Vinod K. Sharma. Mr. Wilson appealed in writing the denial by Mr. Schmitt on August 4, 1976 to Mr. Sharma. Mr. Sharma, on August 4, 1976, sustained the denial of the request citing as the basis an August 1, 1976 memorandum to all fund accountants from J. R. Barrett, University Comptroller, asking all fund accountants not to request annual leave during the period from August 3, 1976 through September 7, 1976. The Appellant called in sick on August 9, 1976. He also called in sick on August 10, 1976. He did not call in to explain his absence on August 11, 12, and 13, 1976. Appellant Wilson presented a memo signed by W. H. Baker, M.D., as follows: "8-9-76 Mr. Ralph Wilson visited my office today because of illness." There was uncontroverted testimony that Appellant Wilson attended a church meeting on August 11, 12 and 13, 1976, in Lake City, Florida. Evidence was submitted that Appellant Wilson was an active member of the conference in Lake City who served, according to a portion of the program for the conference, as a member of the Board of Examiners at said conference. Appellant Wilson was transferred to the Comptroller's Office on July 10, 1976. His job description included the following statement by Mr. Barrett: "Your immediate supervisor will be Bill Schmitt, who at his discretion, may assign you additional duties." Appellant Wilson admitted that he was in Lake City, Florida on August 11, 12 and 13, 1976, and took an active part in a church conference in Lake City during that period. He admitted that he knowingly violated the personnel rules of being absent without proper authorization. The Appellant contends that he is discriminated against by his supervisors in that a statement from the doctor is required of other employees and that he is required to bring in certification on sickness anytime that he is sick for more than two (2) days. Appellant contends that his duties assigned are not nearly as much as the Respondent claims them to be, that he was given no credit for coming to work before 8 o'clock or while he stayed at work while his supervisors went on coffee break daily from around 8:15 to 9:00 A.M., that each time he was going to be more than fifteen (15) minutes late he did call in and report the same. Appellant further contends that the Respondent did not prove that he was not sick on the days claimed. He stated he was sick August 9-13, 1976. Appellant Wilson was notified by mail that he was suspended for three (3) days by the Agency Head, President B. L. Perry, Jr. Said suspension notice stated that the suspension was for being absent without authorization. He was without authorized leave.
Recommendation Inasmuch as the Appellant has been orally reprimanded and reprimanded by written notice, it is recommended that the three (3) day suspension without pay be sustained. DONE and ORDERED this 9th day of May, 1977, in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Mr. Ralph L. Wilson Post Office Box 2392 Tallahassee, Florida 32304 Bishop Holifield, Esquire Legal Department Florida A & M University Tallahassee, Florida 32307 Mrs. Dorothy Roberts Appeals Coordinator Department of Administration Room 530, Carlton Building Tallahassee, Florida 32304
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
The Issue The issue in this case is whether the University of Florida acted inappropriately in determining that Dr. Nancy Norvell's performance as an Assistant Professor was insufficient to meet the criteria for tenure and promotion.
Findings Of Fact The College of Health Related Professions of the University of Florida consists of nine departments, including the Department of Clinical and Health Psychology. Dr. Richard R. Gutekunst is dean of the college. Dr. Nathan W. Perry is chairman of the referenced department. Students in the Department of Clinical and Health Psychology are graduate level students pursuing advanced degrees in the study of abnormal behavior. The department operates a clinic which provides counseling services to appropriate individuals and is utilized as an instructional tool. Clinical instructors supervise student clinicians providing treatment to patients. Such students include graduate students from within the department and interns from outside the University. In April, 1984, Dr. Nancy K. Norvell was, by letter from Dr. Perry, offered employment as an Assistant Professor in the Department of Clinical and Health Psychology. Dr. Norvell accepted the offer and was hired, effective July 20, 1984. According to Dr. Perry's letter of April 16, 1984, Dr. Norvell's duties were "clinical teaching, research and assigned clinical responsibilities on the Adult Consult and Liaison Service and in the general Adult Clinic." Dr. Perry also advised that she would teach the Adult Psychopathology course during the Fall `84 semester. The April 16 letter stated that Dr. Norvell would be evaluated at least once annually in terms of performance of assigned duties and responsibilities. The letter advised that such evaluations were considered in recommendation and final decisions on tenure, promotions and salary. The letter stated that "[t]he criteria for promotion or for the granting of tenure shall be relevant to the performance of the work which the faculty member has been employed to do and to his performance of the duties and responsibilities as a member of the University committee." The letter also outlined the criteria relevant to the granting of tenure, identified as "broad categories of academic service" including instruction, research, and service. As identified in the, letter of April 16, "instruction" includes regular classroom teaching, direction of thesis and dissertations, academic advisement, extension activities, and all preparations for this work including continuing education. "Research" includes publications and other "creative" activities. "Service" includes public, professional, and University activities. Each semester, faculty members of the Department of Clinical and Health Psychology are assigned teaching, research, and service duties, expressed as percentages of employment responsibilities. Such assignments are communicated by memo to the individual faculty members. Dr. Norvell was aware of her assigned responsibilities each semester. During the 1984-85 school year, Dr. Norvell's duties were assigned as 62% teaching, 35% research, and 3% service. Typically, faculty members are evaluated by their students towards the end of each term. Such evaluations are performed in accordance with standardized procedures, which the University has adopted by administrative rile. Students assign overall numerical scores from 1 to 5 for the course and for the instructor, with 1 being the tops of the range. Instructors are not present during the evaluation. Results are not provided to the instructors until after course grades are determined. Such procedures provide anonymity to Dr. Norvell's students evaluated her performance in accordance with such procedures. During the Fall 1984 term, Dr. Norvell taught Adult Psychopathology, a required course for all department students. In the confidential evaluation, her students rated the course as 1.11 and her instruction as 1.11 above the respective department mean of 1.71 and 1.49. During the Spring of 1985, Dr. Norvell taught an elective course. An elective course is conceived by the instructor who teaches the course. The students who enroll in elective courses are generally interested in the subject matter. In the confidential evaluation, her students rated the course as 1.25 and her instruction as 1.25, above the respective department mean of 1.71 and 1.56. Students frequently rated elective courses higher than required courses. Dr. Norvell's first year was ,productive, according to Dr. Perry's letter of evaluation, dated June 26, 1985. In his letter, he stated that she "performed well in the range expected for progress towards tenure." The evaluation noted that Dr. Norvell's clinical billings were lower than other faculty members. Clinical billings are a measure of time spent in clinical teaching, but are not reflective of quality. Dr. Norvell's teaching included both clinical and classroom activities. Dr. Perry attributed the low billings to her recent arrival and expressed his anticipation that she would have no difficulty in increasing her billings. During the 1985-86 school year, Dr. Norvell's duties were assigned as 59% teaching, 33% research, and 8% service. In October, 1985, Dr. Perry became aware of conflicts between Dr. Norvell and clerical staff related to preparation and completion of written case reports. Dr. Perry wrote a letter to Dr. Norvell expressing his concern, advising that certain procedures would be instituted, and stating, "[e]ven with their adoption, it will still be necessary to relate to the staff with courtesy and understanding of their total work loads." During the Fall 1985 term, Dr. Norvell again taught Adult Psychopathology. In the confidential evaluations, her students rated the course as 2.44 and her instruction as 2.44, below the respective department mean of 2.37 and 226. By letter of evaluation dated June 25, 1986, Dr. Perry commended Dr. Norvell's research. He further noted her substantially increased clinical billings. However, Dr. Perry stated that her professional judgement was unsatisfactory, and that her negative attitude towards faculty colleagues and staff was "problematic." The evidence shows that from the beginning of her employment with the University until the end of academic year 1985-86, Dr. Norvell was assigned responsibilities as Chief of the Adult Consult Liaison Service. Dr. Perry testified that Dr. Norvell was to be supervised by Dr. Alan Glaros, Director of the Medical Psychology Service and the Pain and Stress Management Clinic. Dr. Glaros and Dr. Norvell recalled their relationship as that of equals. There was friction between Drs. Norvell and Glaros, at least to a degree that Dr. Perry found unacceptable. Following the academic 1985-86 period, Dr. Perry relieved Dr. Norvell of her responsibilities as Chief, in part because Dr. Norvell and Dr. Glaros were unable to work together to Dr. Perry's satisfaction, and because of a departmental reorganization. Dr. Perry subsequently did not assign any service responsibilities as part of Dr. Norvell's employment. During the 1986-87 school year, Dr. Norvell's duties were assigned as 65% teaching, 35% research, and 0% service. During the Fall 1986 term, Dr. Norvell again taught Adult Psychopathology. Her students rated the course as 2.00 and her instruction as 1.70. The respective department mean scores were 1.93 and 1.78. By evaluation letter dated June 3, 1987, Dr. Perry noted that Dr. Norvell's teaching and research continued to be productive. He commended her on receipt of an award for excellence in consulting research. Dr. Perry stated that her participation on a minority recruitment trip represented "outstanding university service." He also noted that her attitude and relationships with colleagues and students was much improved. During the 1987-88 school year, Dr. Norvell's duties were assigned as 53% teaching, 47% research, and 0% service. During the Fall 1987 term, Dr. Norvell again taught Adult Psychopathology. In the confidential evaluations, her students rated the course as 2.82 and her instruction as 2.91, below the respective department mean of 1.87 and 1.75. At hearing, Dr. Norvell asserted that the poor evaluation was caused by the specific class of students enrolled in her course during the Fall `87 term. As support for the assertion, Dr. Norvell provided testimony from another instructor, no longer at the University, who had received poor evaluations from supposedly the same group of students. The evidence does not establish that the poor were due to the specific class of students. On January 11 and 12, 1988, Dr. Perry met with Dr. Norvell to discuss the results of the Fall `87 student evaluation. He expressed concern with her attitude towards students as reflected by the individual student comments in the evaluations. (At that time, the department mean had not been calculated.) Dr. Perry also expressed his opposition to Dr. Norvell's practice, of which Dr. Perry had become aware, of soliciting student evaluations in addition to the department's standardized confidential evaluations. Dr. Perry believed the practice to be inappropriate, and, at hearing, stated that the practice could have resulted in inflation of the scores resulting from the standardized evaluations. While Dr. Norvell's activity may have been inappropriate, the assertion that such could have resulted in inflated student evaluations is unsupported by evidence. During the January 11-12 meetings, Dr. Norvell asked Dr. Perry if he would support her application for tenure. A faculty member at the Assistant Professor level eventually receives tenure or is terminated following the sixth year of employment. Dr. Perry replied that he could not support her application at that time. By letter to Dr. Perry, dated January 13, 1988, Dr. Norvell wrote that a review of the data "suggests that 89% of all students who have taken the adult psychopathology course regard me as adequate or better." Dr. Norvell stated that she appreciated his concern and requested a formal evaluation of her teaching, including clinical practice. By letter to Dr. Perry, dated January 19, 1988, Dr. Norvell expressed surprise at Dr. Perry's January 12 statement of nonsupport for her tenure application. Dr. Norvell stated, "I am eager to address any issues that you feel are of concern and would like any problem areas articulated so that I may work to correct any existing problems." She further requested that he provide "specific guidelines for remedying those particular problems." By letter to Dr. Norvell, dated January 21, 1988, Dr. Perry expressed "some surprise and considerable disappointment" in Norvell's letter of January In the letter, Dr. Perry recalled, at length, the discussions of January 11-12. According to the letter, the discussions included her use of additional, non-confidential, student evaluations, and her attitude towards students. Dr. Perry stated that students had become apprehensive at the fact that she requested evaluations prior to the close of the course, and that she personally collected written comments from students. He enumerated the reasons he recalled Dr. Norvell having given for the poor evaluation. Dr. Perry also discussed her previous course ratings and his disagreement with her interpretation of the evaluation scores. In concluding the letter, Dr. Perry stated that his concern is not her teaching ability, but her performance. He states that her "teaching performance and your combative rather than collaborative attitude regarding the evaluation is of serious question. As I said in our discussion, I do not want to prejudge the broader tenure evaluation, but if I had to vote at this time, I would not be able to support your candidacy." By letter to Dr. Norvell dated February 10, 1988, Dr. Perry noted that the letters appear to have crossed in mailing, and that he had not received her letter of January 19 prior to his writing of the January 21 letter. He noted that the department mean had become available and that Dr. Norvell's evaluation scores were below the mean. He again stated his recollection of the earlier meetings and, in response to her request for examples of her behavior, wrote "in our discussions, I ha[ve] given you numerous examples of your behavior that I considered to reflect your attitude." Subsequently, Dr. Norvell sent a letter to Dr. Perry, dated March 8, 1988, identical to her letter of January 19, in which she requested specific identification of her problems. Dr. Perry had previously responded to her request. Dr. Norvell was either unable or unwilling to accept his comments. By evaluation letter dated June 21, 1988, Dr. Perry stated that Dr. Norvell's research and clinical teaching remained productive. He acknowledged her service on university committees was appreciated. However he started that her course teaching and her judgement were unsatisfactory. He further expressed his displeasure with her response to his concerns, and referred to the previous series of letters exchanged. He stated that, although previously there had been improvement in her relationships with colleagues and students, additional improvement was required. Dr. Perry's June 21 letter advised that his concern was "with the great variability in your performance over time and your difficulty in objectively looking at your own role in this variability. Unless individuals can scrutinize their own behavior, it is difficult for them to make any improvement permanent. The improvement is also destined to be temporary to the extent that it is based upon compliance to administrative authority rather that a genuine acceptance that improvement is needed." Although matters related to tenure are supposedly confidential, knowledge of Dr. Norvell's tenure situation appears to have been widespread among faculty and some students. Dr. Norvell discussed the matter with faculty members. Dr. Perry found it necessary to discuss the situation with non-tenured instructors who were aware of the approaching Norvell tenure deliberations and who were personally concerned about tenure practices. During the Summer 1988 term, Dr. Norvell taught an elective course. Her students rated the course as 1.00 and her instruction as 1.00, above the respective department mean of 1.50 and 1.61 respectively. In the Department of Clinical and Health Psychology, a faculty member in Dr. Norvell's position may submit a tenure application in either the fifth or sixth year of employment. Generally, a candidate for tenure applies once. An assistant professor will usually apply for promotion to associate professor concurrently with the tenure application. Dr. Perry suggested to Dr. Norvell that she delay her application until her sixth year. Such would have permitted Dr. Norvell to teach the Adult Psychopathology course again and would have provided an additional set of student evaluations to be considered. Dr. Perry believed such course of action to be advisable in response to the poor evaluation from the Fall 1987 class. Dr. Norvell chose to submit the application in her fifth year. In October, 1988, Dr. Norvell began to prepare her tenure and promotion application. A candidate for tenure is responsible for preparation of the package of materials which are reviewed by appropriate personnel. Dr. Norvell's package included biographical and professional information, letters of professional recommendation, standardized student evaluation results, and previous employment evaluations. The package was completed by early November, 1988. Dr. Norvell's tenure package also included letters written by students supportive of her application. The inclusion of such letters, while unusual, was not prohibited. Dr. Norvell did not review the letters. There is no evidence that Dr. Norvell personally solicited the letters. While several witnesses testified that they believed the inclusion of the letters to be inappropriate, the evidence does not establish that the inclusion of the student letters materially affected the tenure deliberations. There is disagreement as to the availability of evaluations received from Dr. Norvell's clinical students. At hearing, Dr. Perry testified that such evaluations were received from Dr. Norvell's clinical students during the period of her employment and were available for her review. Dr. Perry testified that Dr. Norvell's clinical evaluations during her first two years were below average, but not to a significant degree. He also testified that, during that period, he did not inform Dr. Norvell that such clinical evaluations were below average. Dr. Norvell was apparently not aware that such evaluations had been performed. There is no evidence that actual clinical evaluations were considered by the tenure committee or that such evaluations materially affected the committee's deliberations. Such evaluations were not included in Dr. Norvell's application. Tenured faculty appropriately based their opinions of Dr. Norvell's clinical instruction on personal knowledge of her performance in the clinical practice. Applications for tenure are reviewed by department faculty at a scheduled meeting. The application is discussed and tenured faculty vote by secret ballot. Eight faculty members were eligible to vote on Dr. Norvell's tenure application. Applications for promotion are considered at the same time. All faculty members holding the rank sought by the applicant or higher are eligible to vote by secret ballot on the promotion issue. Nine faculty members were eligible to vote on Dr. Norvell's promotion application. The faculty meeting and balloting occurred in November 8, 1988. At the faculty meeting, Dr. Perry initially expressed his opposition to Dr. Norvell's candidacy. Dr. Perry conceded that her research was distinguished, but argued that neither her instruction nor service were of like quality. Dr. Perry had previously attended all but one faculty meeting related to a tenure decision, and had previously expressed his opinion at such meetings. He had not previously opposed a tenure application. Dr. Norvell asserts that Dr. Perry acted inappropriately in speaking against her application at the faculty meeting during which the Norvell application was considered. The evidence does not establish that Dr. Perry's opposition to Dr. Norvell's application was based on factors other than his personal opinion as to whether she had attained a level of distinction in two of the three criteria for tenure and promotion. There is no evidence that Dr. Perry's opinion affected the deliberations any more than the opinion of any other faculty member. The evidence does not suggest that the outcome of the secret ballot would have been otherwise had Dr. Perry not expressed his opinion. Given the faculty's apparent knowledge of the situation prior to the meeting, it is doubtful that any faculty member entered the meeting unaware of Dr. Perry's opposition to the application. Some of the tenured faculty who participated in the meeting testified at hearing. Of those testifying, one admitted to having felt pressured by Dr. Perry's actions at the meeting, but nonetheless voted in favor of Dr. Norvell's tenure application. One faculty apparently considered his antagonistic personal relationship with Dr. Norvell in reaching a decision and abstained from voting on the tenure issue. Had he voted in favor of her tenure application, as he admitted was probable up until shortly before the faculty meeting, it would have been entitled to additional review. In fact, as discussed below, the application was forwarded for additional review. The abstention by the referenced faculty member was irrelevant. The remainder of the faculty members testifying generally found either her teaching, her service, or both, to be unsatisfactory. The vote on Dr. Norvell's tenure application was three for, three against, and two abstentions. The vote on Dr. Norvell's promotion application was six for, two against, and one abstention. Promotion is rarely granted in cases where a tenure recommendation is negative. Although Dr. Norvell asserted that the results indicate that Dr. Perry pressured faculty to vote against her tenure application, and that the faculty voted otherwise on the promotion application, the evidence does not support the assertion. It is more likely, as witnesses testified, that the favorable vote on promotion was with due regard to her distinction in research. Subsequent to consideration and voting by department faculty, applications for tenure and promotion may be forwarded to the college level for further consideration if either the department faculty or the department chairman recommend an award of tenure. If the application receives a negative recommendation from both the faculty and department chairman, the application is not forwarded. However, given the circumstances of this situation, the Norvell application was forwarded for college level review even though neither the tenured faculty nor department chairman Perry recommended the granting of tenure. Applications for tenure and promotion within the College of Health Related Professions are reviewed by the college dean and the advisory Tenure and Promotion Committee. The committee members represent the several departments in the college. Six tenured faculty members, two of whom had participated in the previous tenure meeting, were members of the committee which considered Dr. Norvell's application. Dr. Perry was one of the persons on the committee. Due to the circumstances of the case, Dr. Perry was instructed, either by the college dean, the committee, or both, that he was not to participate in the college level deliberations. Generally, the appropriate department chairman forwards the application package with a transmittal letter and fully participates in the process. Dr. Perry initially decided not to provide such a transmittal letter. Upon learning that Dr. Perry would not be writing a letter, Dr. Norvell wrote and mailed a letter of her own to the college dean and committee members. Dr. Norvell's letter, dated November 23, 1988, expressed her opinion towards Dr. Perry. Dr. Norvell's letter charged that Dr. Perry's opposition to her application was of a personal nature, and stated "[i]f the tenure committee and Dean of the College of Health Related Professions is willing to objectively review my credentials I know I will receive tenure and promotion." After learning that Dr. Norvell had delivered her letter, Dr. Perry wrote a transmittal letter, dated November 14, 1988, in which he addressed Dr. Norvell's application for tenure and explained the rationale for his opposition to her application. Dr. Perry attended the committee meeting and read the letter to the members. He thereafter excused himself and did not participate in the deliberations or the vote. The committee reviewed the tenure package prepared by Dr. Norvell. Following the discussion, the committee voted by secret ballot. The result of the vote on the tenure application was five against and one absent. The result of the vote on the promotion application was five abstentions and one absent. One member of the committee testified that he abstained on the issue of promotion because promotion was rarely awarded without tenure, and saw no reason to do otherwise. Dr. Norvell asserts that Dr. Perry acted inappropriately in speaking against her application at the College meeting during which the Norvell application received further consideration. Dr. Perry was prepared to submit the application to the committee without further comment. He subsequently chose to do write the letter in response to Dr. Norvell's letter accusing Dr. Perry of personal bias. The evidence does not establish that under the circumstances, Dr. Perry's letter was inappropriate. Following the committee vote, the Norvell application was submitted to the Dean of the College of Health Related Professions, Dr. Richard Gutekunst, for review. Dr. Gutekunst reviewed the committee's recommendation and the application package. He determined that, although Dr. Norvell's research was acceptable, her teaching was inconsistent and unsatisfactory. He also determined her service to be undistinguished. He denied the application for tenure and promotion. The University of Florida has adopted rules which identify the requirements for tenure. Rule 6C1-7.019(3), Florida Administrative Code, provides that the criteria for the granting of tenure shall be relevant to the performance of the work which the faculty member has been employed to do and to the faculty member's duties and responsibilities as a member of the University community. The criteria recognize three "broad categories of academic service" including instruction, research, and service. To attain tenure, a faculty member must achieve "distinction" in at least two of the three "broad" categories. "Distinction" is defined as "appreciably better than the usual college faculty member of the candidate's present rank and field". During Dr. Norvell's employment with the University of Florida, her primary responsibilities were teaching and research. Beyond the service expected of all faculty members, such as participation on departmental committees and attendance at meetings, Dr. Norvell had minimal service responsibilities. Though minimal or no service duties were assigned to Dr. Norvell during her employment at the University, she performed minor service activities and was commended on her service in the annual evaluations. Dr. Norvell asserts that such service should be considered as part of the tenure evaluation. The administrative rules state that tenure criteria is applied in relation to the duties for which the candidate was employed. Accordingly, Dr. Norvell's service is minimally relevant to the tenure decision. Even if it the evidence does not establish that such service was appreciably better than the usual college faculty member of the candidate's present rank and field. The University concedes that Dr. Norvell's research was distinguished. Accordingly, to receive tenure, Dr. Norvell must also achieve distinction in instruction. The evidence does not establish that Dr. Norvell's instruction was of distinguished quality. As judged by the student evaluations obtained confidentially from students in her classes, and from faculty familiar with Dr. Norvell's clinical practice, Dr. Norvell's teaching was inconsistent. The evidence fails to establish that Dr. Norvell's instruction was appreciably better than the usual college faculty member of the candidate's present rank and field. In claiming that Dr. Perry acted in opposition to her application for personal reasons unrelated to her qualifications for tenure and promotion, Dr. Norvell related anecdotal information which she asserted demonstrated his personal bias. The evidence does not support her claim that Dr. Perry acted for personal reasons.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the University of Florida enter a Final Order dismissing the Petitioner's petition for tenure and promotion. DONE and RECOMMENDED this 9th day of March, 1990, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of March, 1990. APPENDIX CASE NO. 89-0144 The Petitioner filed proposed findings of fact which included, identified as "notes", comments as to the reliability of testimony and evidence. Such "notes" are regarded as argument and are rejected as subordinate. The following constitute rulings on proposed findings of facts submitted by the parties. Petitioner The Petitioner's proposed findings of fact are accepted as modified in the Recommended Order except as follows: 12. Rejected, not supported by the cited testimony. Dr. Perry did not evaluate her service as outstanding in her first year. He did commend her in her third year on her outstanding service related to the minority recruitment trip, a year in which she had no assigned service responsibilities. 13-14. Accepted as to the statements excerpted from the letters of evaluation, however, it is noted that additional information was included in the evaluations which was less favorable. Rejected, not supported by greater weight of evidence. Rejected, contrary to the evidence and to the Petitioner's assertion that Dr. Glaros was not Dr. Norvell's supervisor. Rejected, not supported by the greater weight of evidence. Rejected, immaterial. Issue is whether Petitioner met the criteria for award of tenure. The reference to clinical evaluations is rejected, irrelevant. Reference to Dr. Perry's discussions with "junior" faculty is rejected, contrary to the greater weight of evidence. 28. Rejected, Dr. Bauer's favorable vote would have permitted further review of application, which occurred despite his abstention, immaterial. 29-30. Rejected, contrary to the greater weight of evidence. 31. Although the Findings of Fact note the Petitioner's election as Teacher of the Year, such is found to be less persuasive or reliable that standardized student evaluations. 34. Rejected. The greater weight of evidence establishes that Dr. Perry was instructed not to participate and did not participate in the college level deliberations. The evidence does not establish that he was instructed not to attend. 35-36. Rejected, unnecessary. The fact that committee members would consider the department chairman's opinion to be persuasive does not establish that Dr. Perry acted, inappropriately in expressing his opinion of Dr. Norvell's qualifications. Dr. Perry's letter was written in response to Dr. Norvell's allegations of personal bias. 37. Rejected. Not supported by greater weight of evidence. 39-41. Rejected. Not supported by greater weight of evidence. Respondent The Respondent's proposed findings of fact are accepted as modified in the Recommended Order except as follows: The reference to clinical evaluations is rejected, irrelevant Rejected, unnecessary. 19. The reference to clinical evaluations is rejected, irrelevant. 27. The reference to clinical evaluations is rejected, irrelevant. Last sentence rejected, unnecessary. 34. Rejected, irrelevant. 35-36. Rejected, unnecessary. 42-43. Rejected, irrelevant. The referenced vote had no effect. 44-46. Rejected, cumulative. 56. Rejected as to the mariner in which Dr. Perry received notification that he was not to participate in the committee deliberations, immaterial. 58. Rejected, unnecessary. COPIES FURNISHED: John Lombardi, President Office of the President University of Florida Tigert Hall Gainesville, Florida 32611 Rodney W. Smith, Esq. Law Offices of Rodney W. Smith, P.A. Post Office Box 628 Alachua, Florida 32615 Barbara C. Wingo, Esq. Office of the General Counsel University of Florida 207 Tigert Hall Gainesville, Florida 32611
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, as well as the parties' factual stipulations, the following relevant facts are found. Miami-Dade Community College is a public educational institution operated by the District Board of Trustees. Its North Campus has an enrollment of approximately 14,000 students, and employs approximately 340 professional faculty and administrators and 300 clerical personnel. At all times relevant to this proceeding, Respondent Joseph T. King was employed on an annual contract basis as an instructor in the Division of Occupational Careers, Business Data Processing Department, at the North Campus. As pertinent here, his latest annual contract was for the period from August 1984 to August 2, 1985. That contract has not been renewed and did not create the expectancy of employment beyond August 2, 1985. As pertinent to this proceeding, the organizational administrative structure of the North Campus, in descending order, is as follows: the President of the College, the Campus Vice-President, the Dean of Academic Affairs, the Associate Deans of the various divisions, the department Chairpersons and instructors. The North Campus Vice-President is the chief administrative officer at that campus and is responsible for providing broad leadership and administrative direction for all of the campus programs and services. The Dean of Academic Affairs is the chief academic officer and is responsible for the faculty and for providing the planning, development, implementation, monitoring, and evaluation of the various instructional divisions. During the time periods relevant herein, Dr. Lukenbill was the Dean of Academic Affairs and Dr. Kelly was the North Campus Vice-President. Dr. Lukenbill had been employed at the college since 1972 and was appointed as the North Campus Dean of Academic Affairs on January 28, 1985. Dr. Kelly, having served in various levels of college administration for 23 years, was appointed as the North Campus Vice-President during the first week of February 1985. The Acting Associate Dean of the Division of Occupational Careers was Blanca Gonzalez. Within this Division is the Department of Business Data Processing, chaired by Lincoln Andrews. The Respondent King was an instructor in that Department. From January 30, 1985 through February 17, 1985, Respondent was unable to work due to medical reasons. On February 11, 1985, Respondent was advised by telegram from the Director of Personnel Services that he would be required to present a physician's statement to the Associate Dean of his Division substantiating that he is physically able to resume his duties. During the period between January 30, 1985 and February 17, 1985, Respondent did hand-deliver a letter from himself to the College President on January 30, had one dinner engagement, made two visits to a former faculty member's home and had one faculty member in his home. February 18 was a school holiday. At approximately 8:00 a.m. on February 19, 1985, Respondent returned to the North Campus and reported to Associate Dean Gonzalez' office for the purpose of providing documentation regarding his ability to return to work. With him was Harry Forster, a former faculty member who had been terminated and had been asked not to return to the campus. Respondent presented Ms. Gonzalez with certain documentation from his physician and requested her to sign a receipt for the documents. Ms. Gonzalez signed and returned the documents to the Respondent and the conversation between them concluded. At that point, Mr. Forster told Ms. Gonzalez that he wanted to speak with her about the Chairperson of the Business Data Processing Department. Ms. Gonzalez then telephoned Mr. Lukenbill, the Dean of Academic Affairs, and asked him to come to her office to join the meeting because she felt the Academic Dean should be a part of the discussion which Mr. Forster desired to initiate. Having been recently appointed as Academic Dean, and Respondent having been on sick leave since January 30, 1985, Dr. Lukenbill had not met Respondent prior to February 19, 1985. As he walked into Ms. Gonzalez' office, he introduced himself to the Respondent and shook his hand. A discussion thereafter ensued between Dr. Lukenbill, Mr. Forster and Ms. Gonzalez, with the Respondent taking no part in the discussion. The matters discussed by Mr. Forster related to his concerns or beliefs regarding certain activities and personnel at the College. They did not involve the Respondent, though both the Respondent and other administrators had previously heard the allegations made by Mr. Forster. At the conclusion of the discussion between Forster, Lukenbill and Gonzalez, Dr. Lukenbill turned to the Respondent and stated that he would like to have a few words with him and asked if he had a few moments. His purpose in initiating that discussion was a combination of courtesy, to establish a rapport with a faculty member he had just met, and to assure himself that Respondent was physically able to resume his duties as an instructor. It was not unusual for Dr. Lukenbill to speak directly with faculty members, in spite of the organizational it chain of administrative command. In response to Dr. Lukenbill's invitation to talk together, Respondent produced his attorney's business card and responded that he would not speak with Dr. Lukenbill. Respondent then left Ms. Gonzalez' office with Mr. Forster, and attended his scheduled classes. For some time prior to February 19, 1985, Respondent had been involved in a contract dispute with the College concerning his salary. His retained attorney had written a letter dated February 14, 1985, to President McCabe regarding this matter and had requested a response within five days. Respondent was of the impression that he should not speak to college administrators concerning his contract dispute or the Forster allegations in the absence of his attorney. When Dr. Lukenbill asked to speak with the Respondent on the morning of February 19, neither he nor the Respondent mentioned Respondent's salary or contract dispute with the College. Dr. Lukenbill had no knowledge of the February 14 letter from Respondent's attorney to President McCabe. While Respondent testified that he would have spoken to Dr. Lukenbill had Dr. Lukenbill advised him that he wished to discuss academic matters with him, the evidence is clear that Respondent did not express this to Dr. Lukenbill nor did he inform Dr. Lukenbill that he only did not feel at liberty to discuss his salary dispute or the Forster allegations in the absence of his attorney. Dr. Lukenbill did not intend to speak with Respondent concerning either Respondent's contract dispute with the College or the allegations made by Mr. Forster. He had previously heard those allegations and felt that they concerned matters unrelated to the Respondent. Dr. Lukenbill was concerned that Respondent's refusal to speak with him created a situation whereby he, as the Dean for Academic Affairs, could not fulfill his responsibilities of managing the assignment of faculty and the conduct of classes. For this reason, he contacted Vice- President Kelly after the February 19 incident and expressed his concern that Respondent's refusal to speak with him impaired his ability to carry out his responsibilities. Dr. Kelly was also concerned and puzzled about Respondent's refusal to talk with the Dean, and agreed that the situation needed to be immediately resolved. At approximately 11:00 a.m. on February 19, 1985, Dr. Lukenbill instructed Ms. Gonzalez to deliver a note to Respondent requesting him to come to Dr. Kelly's office to meet with Dr. Kelly and Dr. Lukenbill at 11:30 a.m. Ms. Gonzalez had a memorandum prepared and attempted to have it delivered to Respondent's lab. The evidence is conflicting as to the time of the attempted delivery and as to the Respondent's schedule of classes and/or labs on that particular day and time. Respondent did attend two of his classes on the morning of February 19. In any event, the memorandum of February 19 was not delivered to the Respondent. On the morning of February 20, 1985, Dr. Lukenbill again requested Ms. Gonzalez to prepare and deliver a note to Respondent requesting him to meet with Dr. Lukenbill and Dr. Kelly in Dr. Kelly's office at 12:15 p.m. Ms. Gonzalez prepared the memo and attached the similar memo of the previous day. Neither memo stated the reason or purpose of the scheduled meeting. The February 20 memo and attachment were delivered to the Respondent during his scheduled class, and Respondent appeared at Dr. Kelly's office at the scheduled time. Vice-President Kelly had never met Respondent prior to February 20, 1985. He was aware that there had been some problems with faculty members missing classes in the Respondent's Department and had heard the Respondent's name in this regard. His concern, however, on February 20 was to attempt to understand and remedy the Respondent's refusal to speak with his Academic Dean on February 19. Dr. Kelly had no knowledge of Respondent's contract dispute with the College and perceived no connection between Mr. Forster's allegations and the Respondent. Respondent appeared at the February 20 meeting with Dr. Kelly and Dr. Lukenbill and the three individuals sat at a small conference table. Respondent immediately placed a tape recorder on the table and asked if there were any objections to the meeting being taped. Drs. Kelly and Lukenbill both indicated they had no objection. Respondent turned on the tape recorder, taped some background information and then indicated to the others that they could proceed with the discussion. It is undisputed that the discussion began with Dr. Kelly stating that they wished to speak with the Respondent about what occurred on the previous day. What Dr. Kelly was referring to, and what Dr. Lukenbill understood to be the purpose of the meeting, was the Respondent's refusal to speak with his Academic Dean on February 19. In response to Dr.,Kelly's opening statement, Respondent threw his attorney's business card on the conference table and refused to speak to the Vice-President or the Academic Dean. Dr. Kelly explained to the Respondent that he considered Respondent's behavior, both then and on the previous day, to be inappropriate, intolerable and a very serious matter. He informed the Respondent that if he were not going to speak with Dr. Kelly or Dr. Lukenbill, there would be no way Respondent could remain on campus and that he would recommend his suspension to the College President. Respondent inquired as to whether Dr. Kelly was ordering him to leave the campus; Dr. Kelly responded that he was requesting him to leave the campus and Respondent then left Dr. Kelly's office. Respondent offers the explanation that, since the notice of the February 20 meeting did not set forth the subject matter or reason for the meeting, he had no way of knowing what Dr. Kelly meant by stating that he wished to discuss what occurred on February 19. This explanation is not credible and does not justify his conduct of refusing to speak to his college administrators. First, even if Respondent had been instructed by his attorney not to discuss his contract dispute in her absence, there is a conflict in the evidence as to whether Respondent's contract or salary dispute was ever mentioned during the February 20 meeting. Dr. Kelly was not even aware of such a dispute. While Respondent testified that he himself inquired as to whether the meeting had anything to do with his contract, he further testified that Dr. Kelly responded that he did not want to talk about a contract dispute but instead wanted to talk about what happened with Dr. Lukenbill the previous morning. Thus, even accepting the Respondent's versions of the February 20 meeting, it is clear that Respondent understood, at some point in time, that the intended purpose of the meeting was to discuss Respondent's refusal to speak with Dr. Lukenbill. Respondent never offered any explanation to Dr. Kelly or Dr. Lukenbill as to why he would not speak to them. It is clear that the meeting started and ended with the key administrators of the North Campus expressing their desire to have Respondent explain to them and change his position concerning his unprofessional behavior on that day and the previous day. Respondent's own fears or concerns regarding either his contract dispute or the Forster allegations do not excuse his willful and continued failure to communicate with the top two administrators responsible for his employer's functions and operations. By telegram dated February 20, 1985, Dr. McCabe, Petitioner's President, advised Respondent that he was suspended without pay pending Dr. McCabe's recommendation for dismissal to the District Board of Trustees. By letter dated March 1, 1985, Dr. McCabe advised Respondent that he would recommend Respondent's termination at the March 26, 1985, District Board meeting based upon the charge of gross insubordination. At that meeting, the District Board suspended Respondent without pay pending the termination proceedings. The Petition and Notice for Dismissal was served on April 2, 1985, and Respondent requested a formal hearing.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that Respondent Joseph T. King be dismissed from employment retroactively to the date of his suspension for gross insubordination. Respectfully submitted and entered this 20th day of December, 1985. DIANE D. TREMOR 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 20th day of December, 1985. APPENDIX The proposed findings of fact submitted by the Petitioner and the Respondent have been approved and/or incorporated in this Recommended Order, except as noted below: Petitioner: 7 and 8. Rejected as to date of February 19, 1985, due to evidence to the contrary. 32. Partially rejected, no competent, substantial evidence regarding Respondent's schedule between 11:00 and 11:30 a.m. 51. Rejected, irrelevant and immaterial. Respondent: P. 3, last full sentence Rejected, not a factual finding. in last paragraph. Last paragraph beginning Rejected, not a factual finding on P. 3. And irrelevant and immaterial. COPIES FURNISHED: Donald M. Middlebrooks, Esquire and Nancy E. Swerdlow, Esquire Steel, Hector and Davis 4000 Southeast Financial Center Miami, Florida 33131-2398 Neil Flaxman, Esquire Flaxman and Flaxman, P.A. 2600 Douglas Road, Suite 311 Coral Gables, Florida 33134 Dr. Robert H. McCabe, President District Board of Trustees Miami-Dade Community College 11011 Southwest 104th Street Miami, Florida 33176
The Issue Whether Respondent should be required to pay Petitioner’s claimed overpayment of salary as calculated in the amount of $2,603.86, for the pay periods between July 2, 2007, and July 26, 2007, and whether the effective date for modification in salary as assigned by Petitioner should be consistent with the date of Respondent’s amended contract.
Findings Of Fact Respondent is currently employed as a tenured associate professor in the FAMU College of Pharmacy and Pharmaceutical Sciences (COPPS). At all times material, he has been a tenured employee of FAMU. He currently resides in Tampa and is responsible for developing a professional experience program from Tampa to Orlando, Florida. Although at hearing Respondent orally requested reimbursement of his travel expenses to the hearing, at no time prior to hearing did he object to the scheduling of hearing in Tallahassee, Florida. His oral request is here treated as a motion, to be resolved in the following Conclusions of Law. Herein, FAMU contends that $2,603.86,1/ amounting to 1.9 pay periods (July 2, 2007-July 26, 2007), constitutes an overpayment of salary FAMU made to Respondent in the capacity of interim dean, together with concomitant federal tax considerations. FAMU now seeks reimbursement from Respondent. Respondent’s first employment contract appointing him to serve in an administrative capacity as interim dean and associate professor for COPPS shows a signature on a line provided for “President/Provost/Vice-President” on June 16, 2004, acceptance by Respondent on July 1, 2004, and appointment dates of August 8, 2004, through August 7, 2005. That contract provided for an approval by the president or the president's designee. Prior to that first interim appointment, Respondent was employed in COPPS as an associate dean and associate professor, and Dr. Henry Lewis III was employed as Dean of COPPS. In 2007, Respondent signed three contracts, only the first of which was for employment as interim dean. All 2007 employment contracts referenced throughout this Recommended Order specified that: This employment contract between Florida A&M University Board of Trustees and the employee is subject to the constitution and laws of the State of Florida, the rules and guidelines of the Board of Governors, the regulations of the University Board of Trustees (BOT), and in accordance with Article 6, Nondiscrimination, Article 1.3, Employment Contract, and Article 20, Grievance Procedure and Arbitration of the United Faculty of Florida (UFF) contract with Florida A&M University. Neither this employment contract nor any action or commitment taken pursuant to it, is final or binding upon the parties until, and unless, the signature of the University President, [sic] President’s designee, as approving authority and the signature of the employee have been affixed and the employment contract has been returned to the appropriate authority as specified herein. The signature of the employee affixed hereto shall not be deemed a waiver of the right to process a grievance with respect hereto. * * * ... This offer of employment will be withdrawn and not processed for payroll if this employment contract is not signed and returned to the appropriate authority within twenty (20) days from the date of offer. (Emphasis supplied.) Faculty employment contracts are prepared by the Office of the Provost and Vice President of Academic Affairs and forwarded to the FAMU Payroll Office for appropriate processing and payment. All contracts in evidence have been treated by all parties as valid, regardless of whether they bear FAMU’s president’s signature or the signature of anyone on his behalf signed on the president's "line." Presumably, this is because the signator for the vice-president/provost was the president's "designee" with final approval authority on behalf of the president. At no time has Respondent ever filed a grievance with regard to any 2007, employment contract. Respondent’s first 2007, employment contract reflected an administrative appointment as interim dean and associate professor. It was offered on May 31, 2007; was executed by Respondent on June 15, 2007; and was signed by someone on FAMU's President's signature line on June 22, 2007. Thereby, Respondent was employed at an annual salary rate of $158,417.00, and a biweekly amount of $6,069.61. The period of appointment specified was from July 1, 2007, through June 30, 2008. At all times material, FAMU Board of Trustees Policy No. 2005-15 has provided, in pertinent part: Application This policy applies to employees holding both a tenured faculty position and serving as a senior administrative and academic officer of the University, but who are leaving their senior administrative and academic office to return to the tenured faculty or an administrative position. Examples of such positions are the vice presidents, assistant or associate vice presidents, deans and directors. Lack of Property Interest in Office Senior Academic and Administrative Officers are employees “at will”; thus, the President may not purport to confer on any officer a period of employment of fixed duration or otherwise confer any property interest in such employment. However, such an officer may be appointed to a period of employment as provided in Rule 6C3-10.105 Florida Administrative Code, so long as the instrument accomplishing such an appointment status states clearly that the incumbent officer is subject to removal at any time, during that period, at the option of the President. [sic] Joint Appointments Tenure status as a member of the faculty, held concurrently by any Senior Academic and Administrative Officer of the University is separate and distinct from the administrative office, and such tenure status is governed by the provisions of Rule 6C-10.211, Florida Administrative Code. Those tenure rules and regulations have no bearing upon and do not govern the administrative appointment covered by these regulations, and the Senior Academic and Administrative Officer does not have tenure in his or her administrative positions. Return to a Faculty Position A Senior Academic and Administrative Officer who holds a concurrent tenured faculty appointment may return to that appointment with all the rights and responsibilities of faculty in his or her original department . . . The salary of the administrator shall be adjusted . . . to a . . . faculty salary. (Emphasis supplied.) None of Respondent’s 2007, contracts contain any language about "subject to removal at any time at the option of the President," but both parties herein have signed new contracts on that basis. At all times material, FAMU Board of Trustees Policy Number 2005-19, has provided, in pertinent part: 4. Salary Overpayments The University will seek reimbursement for salary overpayments and as stated in federal and state laws and policies. [2/] In a letter dated June 28, 2007, FAMU President-Elect James H. Ammons offered Dr. Henry Lewis III the position of Dean of COPPS. Dr. Lewis accepted the position as dean in a letter dated July 2, 2007. Also on July 2, 2007, a general faculty meeting was held. At that time, President Ammons introduced his leadership team and announced that Dr. Lewis had been reinstated as Dean of COPPS. Respondent was present when this announcement was made. A contract as Dean of COPPS was offered by the Provost/Vice-President to Dr. Lewis on July 3, 2007. Dr. Lewis executed the contract on July 3, 2007. The copy in evidence does not show any signature by the President or on his signature line. This contract reflects Dr. Lewis’s retroactive appointment as Dean of COPPS for the period July 1, 2007, through June 30, 2008, the same period as was set forth in Respondent’s then-existing contract as interim dean. (See Finding of Fact 9.) In a letter dated July 9, 2007, and received by Respondent on July 12, 2007, President Ammons notified Respondent, “pursuant to FAMU Regulations 10.102 and 10.105,” of Respondent’s “change-in-assignment and removal of administrative duties as interim dean of” COPPS, “effective to June 30, 2007.” Respondent was further informed thereby that his duties and responsibilities as an associate professor would be provided to him by Dean Lewis. The letter also states, in pertinent part: In addition, your annual salary will be adjusted in accordance with the rules and regulations of the FAMU Board of Trustees. A new employment contract reflecting this employment action will be subsequently provided to you. (Emphasis supplied). FAMU Regulation 10.102, provides, in pertinent part: * * * (9) An employee assigned to an acting appointment (temporary change in assignment), in instances in which responsibilities have changed, may be provided a pay increase. Upon the employee’s return to his or her original responsibilities, the pay may be adjusted to the employee’s responsibilities. (Emphasis supplied.) * * * (11) When the assignment of Faculty serving in an administrative position such as Vice President, Dean, Director, or Department Chair is changed, the pay and appointment period shall be adjusted to reflect the new responsibilities. Pay adjustments shall be completed in accordance with the Board of Trustees Policy No. 2005-15 (Separation and Return of Senior Administrative and Academic Officers to Faculty), as now or hereafter amended. (Title underlined in original; other emphasis supplied.) FAMU Regulation 10.105, provides, in pertinent part: (3) Appointments (e) No appointment shall create any right, interest, or expectancy of continued employment. . . . FAMU Regulation 10.209, provides, in pertinent part: Change-in-Assignment of Faculty and administrative and Professional Employees The President or President’s designee may for the best interests of the University, at any time, assign a Faculty or Administrative and Professional (A&P) employee to other institutional assignments only after consultation with the employee and the departments or other units affected. Regardless of the change-in-assignment, however, the University is committed to compensate the employee. Employees whose assignments are being made in conjunction with a nonreappointment [sic] shall be reassigned pursuant to Regulation 10.207.[3/] This regulation shall only apply to a change in assignment when nonreappointment [sic] is not intended by the University. Work assignments are grievable pursuant to Regulation 10.206. Dean Lewis testified credibly that, following some conversations between himself and Pharmacy Director Angela Hill, Respondent’s class and teaching assignments were made on his behalf by Director Hill. Dean Lewis expected Respondent to immediately begin to prepare to teach four sections of medical terminology for the 2007, fall semester, as referenced on an Assignment of Responsibility Form. The date of the first of these classes was August 27, 2007, and there is no evidence that Respondent did not start teaching that class on that date. However, Respondent did not acknowledge the Assignment of Responsibility Form by signing it until August 29, 2007. Director Hill did not sign it until August 30, 2007, and Dean Lewis signed it on September 7, 2007. Respondent was not assigned any administrative duties or responsibilities as interim dean after July 2, 2007, inclusive of the period in dispute, July 2, 2007, through July 26, 2007. Although he testified that between July 2, 2007, and August 27, 2007, Respondent did some work in the Dean’s office, closing out unspecified administrative matters left in his tray, the greater weight of the evidence reflects that Respondent did not perform any identifiable administrative duties or responsibilities as interim dean after July 2, 2007. Moreover, Respondent requested, and Dean Lewis granted him 88 hours of annual leave for the dates of July 9, and July 16-27, 2007. A new faculty employment contract administratively appointing Respondent as associate professor was offered/signed by the provost/vice-president, on August 10, 2007, and signed by Respondent on either August 10, or August 22, 2007 (the date has been scribbled over), for the period from July 1, 2007, through June 30, 2008. It bears no signature on President Ammons' signature line. This contract reflects an annual associate professor salary rate of $106,442.00, and biweekly amount of $4,078.23. Based upon that first 2007, associate professor contract (see Finding of Fact 25), Respondent’s biweekly salary was supposed to be modified to $4,078.24, beginning with the August 17, 2007, pay-date. However, for the pay-dates between July 2, 2007, and July 26, 2007, FAMU continued to pay Respondent a biweekly amount of $6,069.61, as if he were still interim dean. (See Finding of Fact 9.) Due to a salary amount error made on the first 2007 associate professor contract (see Finding of Fact 25), a revised contract was generated by Academic Affairs. It is clearly labeled “revised” and shows an offering date of September 20, 2007, signed by the provost/vice-president; was signed by Respondent on September 21, 2007; and bears no signature on the president's line. This second, revised 2007, associate professor contract, yet again reflects the appointment dates of July 1, 2007, to June 30, 2008, as did the 2007, interim dean contract (see Finding of Fact 9), and the same appointment dates as the first 2007, associate professor contract (see Finding of Fact 25), but it bears a corrected annual salary rate for associate professor of $122,648.00, and biweekly amount of $4,699.15. Pursuant to this second/revised 2007, associate professor contract, FAMU’s payroll office took steps to correct Petitioner’s salary information, and Respondent began receiving the corrected weekly amount of $4,699.15, beginning with his October 12, 2007, pay-date. Respondent did not then, and does not now, contest the annual salary rate or biweekly amount reflected on this revised contract. In a letter dated October 4, 2007, Jacqueline Lester, FAMU’s associate director of payroll, informed Respondent that, due to an administrative error, FAMU had overpaid him (at the rate of interim dean) by a net amount of $1,748.07. Her letter also informed Respondent that, “Pursuant to Volume V, Section VI of The Bureau of State Payrolls Manual, Office of the State Comptroller,” FAMU’s payroll department was required to recover the overpayment from him. She requested that Respondent refund the overpayment amount, and provided him options of how to accomplish repayment. If he selected neither option, there would be involuntary reductions from his future salary checks. Respondent was obliquely advised of the federal tax consequences of a delay in repayment by a blank form attached to Ms. Lester’s October 4, 2007, letter, which blank form Respondent was requested to fill out and sign in acknowledgment that: I understand that if the full payment is not made by 12-31-2007, the payment amount will be recalculated to include withholding taxes that were deducted from the overpayment. This recalculation will result in an increase in the amount due because the withholding taxes paid cannot be recovered by the state. Petitioner never signed the foregoing form. Ms. Lester’s October 4, 2007, letter also informed Respondent that he had a right to request an administrative hearing, pursuant to Section 120.57, Florida Statutes. By a letter dated October 15, 2007, Respondent requested an administrative hearing. On October 12, 2007, before Respondent requested his hearing, FAMU paid Respondent additional gross pay in the amount of $2,483.68. FAMU provided this additional payment to pay Respondent the wages construed as underpayment beginning with the August 17, 2007, pay-date, due to the annual salary error on his first 2007 associate professor contract. In other words, the October 12, 2007, payment brought Respondent’s biweekly salary up to the appropriate amount of $4,699.16, for an associate professor (see Finding of Fact 27) and reimbursed him for the lesser and incorrect salary amount listed in the first 2007, associate professor contract(see Finding of Fact 25), which incorrect amount had been paid out between the August 17, 2007, and October 12, 2007, pay-dates, apparently covering the period of July 27, 2007, to September 20, 2007. Respondent accepted this money from FAMU. Respondent did not immediately get a Section 120.57(1), hearing upon his October 15, 2007, request. Instead, he got a meeting with Ms. Lester and Ms. Carucha Nelson. Ms. Nelson was Ms. Lester’s subordinate who had in-put Respondent’s salary information. Respondent did not then, and does not now, disagree with FAMU’s salary calculations. He only disagreed/disagrees with "the period that the [revised] contract covered." During their meeting, Ms. Lester told Respondent that he needed to talk to someone in FAMU’s Academic Affairs Department about his primary dispute over the beginning date of his faculty employment contract and that she would take no final action to recoup any money from him until his contractual concerns were resolved. She further told him that his questions about his contract commencement date had to be resolved in order for her to re- calculate, and orally advised him of the tax consequences if the dispute were not resolved by December 31, 2007. Although Ms. Lester testified that she considered this meeting to constitute the administrative hearing Respondent had requested,4/ it is clear that both Ms. Lester and Respondent assumed Respondent would have to get some additional action from the provost’s and university attorney’s office(s) before any FAMU decision about the money became final. On November 8, 2007, Respondent e-mailed the provost. Respondent received no response by November 16, 2007, so on November 16, 2007, Respondent e-mailed Ms. Lester, inquiring what else he could do to get a hearing. She e-mailed him back to the effect that contractual issues should be referred to FAMU’s Academic Affairs and Human Resources Departments, and gave him a hierarchy and/or chronology of persons to contact. On November 19, 2007, she warned him that the matter must be resolved before December 31, 2007. Respondent copied appropriate persons with the foregoing series of e-mails, without specifically requesting an administrative hearing. No one contacted Respondent about this again in 2007. Ms. Lester continued to hold the recoupment in abeyance. FAMU took no final agency action throughout 2007. After an exchange of letters in March 2008, Ms. Lester once again requested that Respondent repay salary overpayments for the period of July 2, 2007, through July 26, 2007, in the amount of $2,603.86. Apparently, this corrected amount included withheld amounts of 2007, federal income tax, which FAMU remitted to the Internal Revenue Service on Respondent’s behalf during 2007, and which amounts Respondent had not reimbursed to FAMU before the end of that year. FAMU ultimately recognized a March 25, 2008, letter from Respondent as a request for formal hearing, and on or about August 20, 2008, the case was referred to DOAH, resulting in this proceeding. Respondent has not refunded any money to FAMU.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered requiring Respondent to repay $2,603.86, to Florida Agricultural and Mechanical University. DONE AND ENTERED this 26th day of January, 2009, in Tallahassee, Leon County, Florida. S ELLA JANE P. DAVIS 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 26th day of January, 2009.
The Issue Whether Petitioner, Ruthye Smith, was discriminated against on the basis of her race when she was not selected for two administrative positions with the Brevard County School Board in 1998.
Findings Of Fact Respondent, Brevard County School Board, is the public entity that operates the public schools in Brevard County, Florida, and is the employer of teachers, administrators and other personnel involved in operating public schools. Petitioner, Ruthye Smith, is an African-American female, who has been employed by Respondent as a teacher since 1973. Respondent utilizes a state-approved Human Resource Management and Development Plan, known by the acronym "HRMD," for the training, evaluation, and selection of principals, assistant principals, and deans. HRMD utilizes an interview process for personnel selection called "targeted selection" which identifies "dimensions" for each employee position that are developed through an in-depth job analysis of each position. The targeted selection interview process is designed to evaluate a candidate's qualifications for a position by assessing the candidate's responses to questions designed to reveal the candidate's ability to fulfill requirements of the dimensions identified for the particular position. "Targeted selection" identifies the following seven dimensions for the assistant principal position: communication, decisiveness, leadership, energy and tolerance for stress, planning and organization, control/monitoring, and technical/professional knowledge. A candidate for a principal, assistant principal or dean position is questioned/interviewed by two certified targeted selection interviewers in one-on-one interviews. These interviewers are principals or former principals who have been promoted to director or assistant superintendent and who have received specific training in utilizing the targeted selection process. Each interviewer rates and scores the candidate in separate interviews, evaluating the candidate's responses to certain questions from an interview guide that provides questions directly related to the seven dimensions. The result is a "dimension rating" with a range from a low of 1 to a high of 5 in each of the seven dimensions. After each interviewer has concluded his or her interview, the interviewers confer and form a consensus of the dimension ratings generated by the candidate's responses and prepare a data integration form which documents a consensus dimension rating given the candidate by the interviewers for each targeted dimension. A candidate for selection to an administrative position such as principal, assistant principal, or dean is not deemed qualified unless the candidate scores at least a consensus 3 in each of the seven targeted dimensions. Respondent typically pursues three initial steps in the personnel selection process: advertising the position, evaluating applicants to see if they meet basic criteria, and giving candidates who meet the basic criteria targeted selection interviews. In the instant case, in April 1998, Petitioner applied for two advertised assistant principal positions. Having met the criteria for consideration, Petitioner was given two targeted selection interviews on June 10, 1998. The data integration form prepared by the interviewers records a consensus score of 1 in each of the seven targeted dimensions. Based on the targeted selection interviews and the resultant consensus scores, Petitioner did not score the consensus 3 in each of the seven targeted dimensions required to qualify for consideration for the assistant principal positions. Utilizing the same targeted selection interview process, Respondent identified other qualified candidates who were selected for the positions; both of the candidates selected were Caucasian females.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Florida Commission on Human Relations dismissing the Petition for Relief filed in this case. DONE AND ENTERED this 22nd day of May, 2003, in Tallahassee, Leon County, Florida. JEFF B. CLARK 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 22nd day of May, 2003. COPIES FURNISHED: Harold T. Bistline, Esquire Stromire, Bistline, Miniclier & Griffith 1970 Michigan Avenue, Building E Post Office Box 8248 Cocoa, Florida 32924-8248 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Levi G. Williams, Esquire Fertig & Gramling 200 Southeast Thirteenth Street Fort Lauderdale, Florida 33316 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
