Findings Of Fact In September, 1970, Dr. Van Twyver was appointed Assist-ant Professor of Psychology by the University. The appointment was made in accordance with a contract which ran from September, 1970 through June, 1971. He was given a similar appointment for the academic year beginning September, 1971. Prior to the academic year beginning September, 1972, Dr. Van Twyver was promoted to the rank of Associate Professor (Complaining Party's Exhibit 8). Dr. Van Twyver received appointments as Associate Professor of Psychology for the academic years beginning in September, 1972, 1973, 1974, 1975 and 1976. Dr. Van Twyver also received several appointments to the same position for summer academic terms. Copies of the various appointments offered to and accepted by Dr. Van Twyver were received in evidence as Complaining Party's Exhibit 6. Prior to the appointment for the academic year beginning in September, 1976, each of Dr. Van Twyver's appointments was to tenure earning positions. The position covered by the appointment for the present academic year which commenced in September, 1976, is not a tenure earning position. Dr. Van Twyver's present contract provides that it is a terminal contract and will not be renewed. During his fifth year with the University (the academic year beginning September, 1974) Dr. Van Twyver applied for tenured status on the faculty. He was told by the Chairman of the Psychology Department that due to a change in policy he would not be considered for tenured status until his sixth year. During his sixth year (the academic year beginning September, 1975) Dr. Van Twyver again applied for tenured status. He submitted an application to the Department Chairman. The application was forwarded to the Department of Psychology Faculty Evaluation of Faculty Committee. The Committee was composed of five members. The members of the Committee originally voted unanimously in favor of recommending Dr. Van Twyver for tenure. The vote was based upon an evaluation in which areas of performance substantially equivalent to those itemized in Rule 6C-5.05(2) F.A.C. were considered. At a meeting of the Committee conducted on October 10, 1975, two members urged that Dr. Van Twyver and other tenure applicants be evaluated based upon an additional criterion, that being whether granting tenure would serve the best interests of the University. Dr. Burroughs who chaired the Committee indicated that Dr. Abbott, the Chairman of the Department, thought the additional criterion should be considered. The other members of the Committee rejected the argument, and at an October 15 meeting the Committee voted to recommend Dr. Van Twyver for tenure by a vote of three in favor and two abstaining. A copy of the Committee's final evaluation form dated October 15, 1976, was received in evidence as Complaining Party's Exhibit 2. The Committee considered Dr. Van Twyver acceptable or above acceptable in each of the categories evaluated other than in "research and other creative activities" in which he was rated outstanding. Dr. Van Twyver's application was next considered by members of the tenured faculty of the Department of Psychology. By a vote of four to one the tenured faculty voted against recommending tenure. The lone favorable vote came from Dr. Phillip Tell. The meeting at which the vote was taken was brief, lasting less than ten minutes, and matters other than Dr. Van Twyver's application were considered. Dr. Abbott, the Department Chairman, stated that the vote should be based upon a determination of whether granting tenure would serve the best interests of the University. Dr. Tell asked what was meant by "best interests of the University". Dr. Abbott answered by reading Paragraph G from the recommendation form utilized by department chairpersons in recommending granting or denying tenure or other promotions. Paragraphs A through E of the form set out criteria for evaluating an applicant which correspond with the criteria for evaluating faculty performance set out in Rule 5.05(2), F.A.C. Paragraph F of the form provides a space for recording the results of the tenured faculty vote. Paragraph G contains the following language: I (am, am not) satisfied that the nominee has met all of the criteria for (tenure, promotion) of this university and the Board of Regents, and that he/she (has, has not) demonstrated a high degree of competence in his/her professional field. I believe that granting him/her (tenure, promotion)(will, will not) serve the best interests of the institution and the State University System of Florida. I recommend that: ( )tenure ( )promotion to the rank of (be, not be) granted. The form then provides a space for comments and the chairperson's signature. Dr. Abbott expressed the view that the criterion "best interests of the institution" was apart from and in addition to the criteria for evaluation listed in paragraphs A through E of the form. The vote of the tenured faculty of the Department was based upon this interpretation as was Dr. Abbott's recommendation that tenure not be granted. A copy of Dr. Abbott's evaluation and negative recommendation for Dr. Van Twyver was received in evidence as Complaining Party's Exhibit 3. It cannot be determined from the evidence whether the tenured faculty would have voted in the same manner, or whether Dr. Abbott would have made the same recommendation if the criterion "best interests of the institution" had not been considered as additional to criteria set out in Paragraphs A through E of Complaining Party's Exhibit 3. It does appear that Dr. Van Twyver was considered at least satisfactory in each of those areas. It cannot be determined from the evidence why the tenured faculty voted against recommending tenure or why Dr. Abbott recommended against tenure unless it was for the reason that the concept of "best interests of the institution" was given some unknown interpretation and applied as an area to be evaluated apart from the other criteria. The college of Social Sciences Personnel Committee considered Dr. Van Twyver's application. By a vote of three to two it recommended in favor of granting tenure. The Personnel Committee's evaluation was received in evidence as Complaining Party's Exhibit 4. Charles N. Millican, President of the University decided against recommending to the Board Of Regents that Dr. Van Twyver's application for tenure be granted. His decision is set out in a letter dated March 19, 1976. Copies of the letter were received in evidence as Exhibit A to Hearing Officer's Exhibit 2 and to Complaining Party's Exhibit 1. President Millican set out the following as the basis for his decision: "A careful review of your file indicates that 80 per cent of the tenured faculty members in your Department voted against your tenure nomination, and in addition, your Department Chairman forwarded a negative recommendation. "The University President's decision was thus based upon the tenured faculty vote and Dr. Abbott's recommendation, both of which utilized the test of "best interest of the institution" as determinative. No evidence was presented at the hearing from which it could be determined that constitutionally impermissible criteria were applied to Dr. Van Twyver's application at any stage of the tenure application process. Dr. Van Twyver did not have an objective expectation of reemployment at the University at the time that he applied for tenured status or at any material time.
The Issue The issue for determination is whether Respondent's teaching certificate should be disciplined for alleged violation of various provisions of Section 231.28, Florida Statutes, and Rule 6B
Findings Of Fact Respondent Clayton McWilliams holds Florida teaching certificate number 653517, covering the area of substitute teaching, which is valid through June 30, 1994. He is 27 years of 1989, from Valdosta State College in Valdosta, Georgia. After a few brief months employment in retail sales in Tallahassee, Florida, Respondent returned to Madison, Florida, where he was born and lived prior to attending college. Respondent returned to Madison in August of 1989, after being contacted by the high school coach there regarding the possible employment of Respondent as an assistant coach at the high school from which Respondent graduated. He was employed in the 1989 County School Board. Subsequently, he was employed by the Board during the 1990 high school. Respondent served as an assistant coach during this period. While serving as a substitute teacher during the 1989 Respondent was responsible for a ninth grade science class. Female students M.B., R.B., J.D., and R.C., were in a group surrounding Respondent's desk, talking with Respondent. All the students in the group were curious about Respondent and asked him such questions as what are you going to coach, are you married, do you have a girl friend, and why did you come back to Madison? Respondent knew many of the students on a first name basis and, in the course of bantering with the group, responded at one point to the students' questions about his private life by asking the students about their social lives, if they kissed their boy friends with their mouths open, and if they used their tongues. There was general laughter from the students, although R.B. didn't think the question was "any of [Respondent's] business." This was the only question or comment that Respondent ever made that bothered R.B. R.B. regarded Respondent's conduct in the ensuing two years as "flirting" and "didn't ever think anything bad about it." The next year when R.B. was in the tenth grade (1990 photograph. Respondent later told R.B. that he stared at the photograph every night. When R.B. was in the eleventh grade and not a student in a class taught by Respondent, Respondent jokingly asked R.B. in the presence of D.C., her boyfriend at the time and an athlete with whom Respondent enjoyed a rapport, why she wanted to date such a "big, old dummy." There were other times that Respondent would see R.B., tell her that she looked nice, wink at her and blow her kisses. During the 1990 M.B., by asking her if she kissed with her mouth open, and would she teach Respondent how to do this. Respondent also told M.B. that she looked beautiful. M.B. was not a student in a class taught by Respondent. During the 1991-1992 school year, M.B. was a high school junior and a varsity cheerleader. Respondent continued to speak to M.B., although she was not his student, when he saw her on the school campus or at sporting events. He continued to ask M.B. about kissing with her mouth open, whether she would teach Respondent how to do this, and when could she teach him. M.B. declined to specify any time or place to meet with Respondent. M.B. did not disclose Respondent's behavior to anyone at this time. On one occasion, M.B. and other eleventh grade students, including her boyfriend, were in the high school library, ordering their class rings. Respondent became involved in conversation with the students and asked M.B. again about teaching him to kiss open would lose his job for M.B. Although he heard these comments, M.B.'s boyfriend considered Respondent to be joking. In the fall of the 1991 Wakulla County for a game which would determine whether the team could compete in the district championship playoff. Upon boarding the bus after the game for the trip home, Respondent was asked by M.B. if he was going to sit with her on the bus. He replied that he would if she saved him a seat. Respondent stored the athletic equipment which he was carrying, returned to the forward section of the bus and assumed the vacant seat beside M.B. Since the team had lost the game, most passengers on the bus were despondent. In the course of the trip, M.B. and Respondent leaned their heads against the back of the seat in front of them and Respondent talked about college and how being from a small high school had been difficult when he had attended the University of Florida before transferring to Valdosta State. Respondent had his hands between his knees as he talked and at one point placed it on M.B.'s knee or patted her knee. She, feeling discomfited by the gesture, brushed his hand away. This was the only time that Respondent touched a student where such touching was interpreted by a student to have sexual significance. Respondent testified that he patted M.B. because she acted as though "something had been bothering her" and characterized the pat as something he would give "football players or baseball players at school." Eventually, M.B. became sleepy and rested her head against the bus window. Respondent in a normal tone of voice offered to let her place her head on his shoulder, but M.B. declined. During the 1991 photographs. On the back of his photograph, Respondent wrote: M., I remember when I first saw you, you struck me as beautiful. I really think you are. You are truly special to me. Please know that I love you. Stay sweet and pretty. Love, Clayton. P.S., Please teach me sometime. Mary Rice, a teacher at the high school, began teaching there at approximately the same time as Respondent. Rice, like Respondent, was single. Rice, like Respondent, enjoyed informal relationships with some students, such as the cheerleaders for whom she served as staff sponsor. The cheerleaders, similar to many students who called Respondent by his first name, referred to Rice as "Mary". She became engaged in October of 1991 to Scott Alley, another teacher who occasionally substituted at the school. Rice and Respondent had a normal collegial relationship. Prior to Christmas of 1991, Rice and Respondent were in the school office discussing what they were getting their significant others for Christmas. Respondent told Rice that he would tell her what he was getting his girl friend for Christmas if Rice would have sex with him. Later in the day, Respondent got down on his knees in the hallway outside of Rice's classroom in the presence of students and asked Rice to "go with me before you get married". While Respondent meant that he wanted to have sex with Rice, he did not explicitly state such in the hallway. Later, Respondent sent Rice a note containing four blanks for letters. According to Rice, the note stated that Respondent would tell Rice what he was getting for his girlfriend for Christmas if Rice would " ". Rice assumed the four blanks to represent a sexually suggestive word. Rice stored the note in her desk drawer. She determined not to tell anyone about the note. In February of 1992, her fiancee, Scott Alley, discovered the note in the desk while he was substituting for Rice. He showed the note to Debra Wetherington, a school secretary, and later asked Rice about the note. Rice was startled that Alley had found the note and became upset. Later, in a telephone conversation initiated by Respondent, he discussed the note with Alley. Respondent apologized to Alley for any misunderstanding about the note, stating that he had written it merely to get a laugh from Rice. Respondent told Alley that he, Respondent, just flirted with everyone and that was "how I broke the ice with everyone." After Respondent's apology, the two men agreed to remain friends. Subsequently, the note was destroyed by Alley. Debra Wetherington, the secretary at the high school, frequently interacts with the teaching staff. Initially, Respondent and Wetherington enjoyed a good working relationship no different than those she shared with other teachers. She had known Respondent all of his life. Over a period of time, Respondent began to flirt with Wetherington, asking her about open mouth kissing. At these times, Wetherington ignored his remarks or laughed them off as a joke. When his behavior persisted, she told him that his conduct bothered her and that he should stop. She never told her husband or any one else about Respondent's attentions, hoping to resolve the matter without confrontation and embarrassment. On or about February 25, 1992, Respondent came into the school office and physically put his arms around Wetherington in a "bear" hug and, according to Wetherington, tried to put his tongue in her ear. Also present in the room were the school resource officer and another office worker. No eyewitness corroboration of Wetherington's allegation that Respondent attempted to put his tongue in her ear was offered at the final hearing and she had not reported this detail in an earlier affidavit regarding the incident. Respondent denies he attempted to put his tongue in her ear. Respondent's testimony is more credible on this point and it is not established that he attempted to put his tongue in Whetherington's ear. Wetherington later complained about Respondent's conduct to Lou Miller, the school principal. Miller called Respondent into her office, discussed the incident with him, and directed him to have no such contact with Wetherington in the future. Respondent apologized for his conduct, both to Miller and Wetherington. While Respondent and Wetherington had no further contact, Wetherington later asked another teacher, Tony Stukes, if Respondent was angry with her since she had not seen or heard from him lately. On or about March 24, 1992, Respondent saw M.B. in the hallway outside the door of his classroom while classes were changing. Respondent spoke to M.B. and told her that he had a dream about her. M.B. went to see Mary Rice, the cheerleading sponsor, who had earlier asked M.B. if she was having any problems with a teacher. Rice had taken this action following the discovery of Respondent's note in Rice's desk by Rice's fiancee. M.B. had confided in Rice about Respondent's previous flirtatious behavior toward her. Rice told her to write down future incidents. After relating to Rice the comment of Respondent about having a dream, M.B. was asked by Rice to go back to Respondent and find out more about the dream. M.B. went into Respondent's class where the students were working on a geography project. An overhead projector displayed the continent of South America on a board. Some students were tracing the projection on the board, preparatory to cutting the shape out of the board. Other groups were cutting out other continents. The lights in the room were turned on. Respondent was sitting at his desk, cutting out the Asian continent. M.B. went to a chair by Respondent's desk and sat down. M.B. was on her lunch break and was not a student in the class. However, in the context of the situation, her entry into the classroom was not that unusual. Respondent had on previous occasions entered an art class where M.B. was a student and had spoken with her or, on some of these occasions, had also spoken with the teacher in the class. After seating herself by his desk, M.B. asked Respondent to tell her about his dream. Respondent replied that he couldn't, but M.B. persisted. Finally, Respondent wrote on a piece of paper, "I had a dream about you and me." M.B. then wrote on the paper, "Well, what happened?" The rest of the written exchange is as follows: Respondent: "Well, all I remember is you were teaching me." M.B.: "Teaching you what?" Respondent: "Guess." M.B. "I don't know. Why don't you tell me what I was supposedly teaching you." Respondent: "How to kiss with my mouth open. I liked it, too. I woke up sweating and holding my pillow to my mouth." M.B. then took possession of the piece of paper on which she and Respondent had been writing, left the class and went back to see Mary Rice. M.B. discussed the matter with Rice. After this discussion, M.B.'s feelings about Respondent solidified and she determined that she detested Respondent. At Rice's suggestion, she then went to see Principal Miller. Miller and School Superintendent Eugene Stokes confronted Respondent with the note. Respondent stated he meant no harm by his conduct, recognized that he had a problem and needed help for his aberrant behavior. After a discussion of options, including suspension or resignation, Respondent thought about the matter overnight and submitted his resignation to Stokes on March 27, 1992. Respondent was told that the matter must be reported to the Professional Practices Commission. Respondent was, however, under the impression that his resignation would conclude the necessity for any further proceedings of a disciplinary nature. Until the time of his resignation, Respondent had received good evaluations. His contract was renewed annually. However, as expressed at final hearing by Miller and Stokes, they would not rehire Respondent in view of his past behaviors which now, in their opinion, would reduce his effectiveness as a teacher at Madison High School. Subsequently, Respondent was informed on May 28, 1992, that an investigation regarding alleged misconduct been instituted by the Professional Practices Commission. In August of 1992, Respondent sought and was appointed to a teaching position in Hawthorne, Florida, at the combined junior/senior high school in that city for the 1992 completion of course work for issuance of a five year teaching certificate from the State of Florida which he received in October of 1992. Dr. Lamar Simmons, the supervising principal at the school in Hawthorne, Florida, where Respondent is presently employed is acquainted with Miller. Simmons contacted Miller at the Madison High School, prior to employing Respondent. Miller informed Simmons that Respondent had been a satisfactory employee. Miller did not disclose Respondent's alleged misconduct to Simmons because she assumed Respondent was receiving professional help for his problem and that the issuance of Respondent's five year certificate indicated that further disciplinary proceedings by the Professional Practices Commission had been abandoned. Respondent later disclosed the instant disciplinary proceeding to Simmons. To date of the final hearing, Respondent continues to teach at the school in Hawthorne without apparent incident.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered finding Respondent guilty of the third, fourth, and fifth count of the Administrative Complaint, and placing Respondent's teaching certificate on probation for a period not to exceed three years upon reasonable terms and conditions to be established by Petitioner, including the following requirements: That Respondent present himself for psychological evaluation by a qualified professional selected by Petitioner. That Respondent complete such course of psychotherapy as may be prescribed as a result of that evaluation. That Respondent assume the cost of such evaluation and subsequent therapy, if any. That Respondent enroll and complete a minimum of six hours of continuing education courses in the area of professional conduct for educators. That in the event that Respondent fails to comply with any of the terms and conditions of probation, Respondent's teaching certificate shall be subjected to a period of suspension not to exceed two years, and that compliance with these conditions of probation serve as the prerequisite for any reinstatement of Respondent's teaching certificate in the event that suspension for noncompliance with these conditions occurs. DONE AND ENTERED this 1st day of June 1993, in Tallahassee, Leon County, Florida. DON W. DAVIS 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 1st day of June, 1993. APPENDIX In accordance with provisions of Section 120.59, Florida Statutes, the following constitutes my specific rulings on proposed findings of fact submitted by the parties: Petitioner's proposed findings 1.-12. Accepted. Rejected as to D.C.'s feelings, hearsay. Accepted. (Note: this is the second finding numbered 13.) Rejected as to "two or three times", accepted as to touching on the knee one time, on the basis of resolution of credibility on this point. (Note: this is the second finding numbered 14.) Accepted. Accepted in substance, not verbatim. 16.-18. Accepted. Rejected as to tickling reference since no sexual significance was ascribed by M.B. to this action, she did not supply a point in time when this occurred and inclusion would imply a significance not proven at the final hearing. Rejected, unnecessary. 21.-23. Rejected, subordinate to Hearing Officer findings on this point. 24.-42. Accepted, but not verbatim. 43. Accepted as to bear hug, remainder rejected on basis of creditibility. 44.-57. Accepted, but not verbatim. Respondent's proposed findings 1.-20. Accepted, but not verbatim. 21. Rejected, unnecessary. 22.-23. Accepted, but not verbatim. Rejected, unnecessary. COPIES FURNISHED: Margaret E. O'Sullivan, Esquire Department of Education 352 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Thomas E. Stone, Esquire Post Office Box 292 Madison, Florida 32340 Karen Barr Wilde Executive Director Education Practices Commission 301 Florida Education Center 325 W. Gaines Street Tallahassee, Florida 32399-0400 Jerry Moore, Administrator Professional Practice Services 352 Florida Education Center 325 W. Gaines Street Tallahassee, Florida 32399-0400 Sidney H. McKenzie, Esquire General Counsel Department of Education The Capitol PL-08 Tallahassee, Florida 32399-0400
The Issue The issues in this case are: Whether Respondent, Everest University (the "School"), discriminated against Petitioner, Hashim Aboudaya, on the basis of his place of natural origin (Middle Eastern), race (Caucasian), and/or religion (Muslim) in violation of the Florida Civil Rights Act by twice failing to promote Petitioner to the position of associate dean or director of Student Services; and Whether the School retaliated against Petitioner based on his place of natural origin, race, and/or religion by refusing to pay for his doctoral level college courses.
Findings Of Fact Petitioner is a Caucasian male, born in Lebanon and, therefore, of Middle Eastern heritage. He is a practicing Muslim. In July 2003, Petitioner began teaching as an adjunct professor at the School, teaching computer information services and teaching a few classes per year. In or around August 2007, Petitioner was promoted to senior network administrator, a non-teaching position, for the School. At all times relevant hereto, Petitioner served in that position. He currently teaches classes on an as-needed basis also. The School is a private college formerly known as Florida Metropolitan University. There are ten related campuses in the State of Florida, with one being in Melbourne, Brevard County, Florida. The Melbourne campus has two locations, one on Sarno Road and the "main" campus on U.S. Highway 1. Petitioner holds two master's degrees, one in management and one in computer resources and information management, from Webster University in Saint Louis, Missouri. He is pursuing a third master's degree, but it is "on hold" pending his completion of studies in a doctoral program. The doctoral program being sought by Petitioner is in the field of business administration with a major field of study in computer security. The degree is being pursued on-line through Capella University based in Minneapolis, Minnesota. Petitioner's resume indicates that the Ph.D. will be "done in the end of 2007," but it has obviously taken longer than planned. Petitioner has applied for several vacancies listed at the School, but for purposes of this proceeding, the following are relevant: (1) The associate academic dean position advertised in January 2010; (2) The associate academic dean position advertised in April 2010; and (3) The director of Student Services position advertised in August 2009. Associate Academic Dean Positions The following qualifications were specified in the School's job description for the associate academic dean positions. The applicant must: Possess the necessary academic credentials and work related experience mandated by the Company, State accreditation agencies and any other regulatory agency that monitors compliance. Have a minimum of 2 years practical work experience in business or education. Have a minimum of 1 year teaching experience, but The years of experience may be waived at the sole discretion of the college president so long as the incumbent meets the accreditations, State and Federal requirements necessary to hold the position. There was also a job posting (as opposed to a job description) for the associate dean position on a website associated with Corinthian Colleges, Inc. ("CCI"), the School's parent company. That job posting indicated that a master's degree was required for the job and included other requirements not set out in the School's official job description. The college president, Mark Judge, could not verify the accuracy of the job posting. There is no persuasive, credible evidence that the job posting was produced by the School or intended to be used as the basis for filling the associate dean position. The first associate dean position was for the Sarno Road site which housed the School's allied health programs, e.g., medical assistant training, pharmacy technician associate degrees, medical insurance billing and coding, and healthcare administration. Besides the requirements set forth in the job description, the School was looking for someone with health- related experience as well. Terri Baker, a registered nurse, was ultimately hired to fill the associate dean position. Baker had approximately 20 years of experience with the School. During that time, Baker had taught classes in the allied health program, had served as a program director, and was an associate dean at other campuses within the CCI system. Baker does not hold a master's degree, but the job description issued by the School does not require that level of education. The job posting, which appeared in a publication issued by the School, does say that a master's degree is required, but there is no competent and substantial evidence to suggest the job posting supersedes the job description. Notwithstanding her level of schooling, it is clear Baker was a perfect fit for the job. The decision to appoint her, rather than Petitioner, to the position was based on factors other than race, national origin or religion. The second associate dean position was advertised in the Spring of 2010. The job description for that job is the same as the previous associate dean position. However, there are many different duties and expectations associated with the second position. For example, while the first position was related directly to the allied health programs at the School, the second position had a different focus. The person filling this position would be working on the main Melbourne campus, rather than the satellite campus. His or her duties would be directed toward tasks such as transfer of credit analysis, scheduling, and registering new students. The dean would also be responsible for monitoring the School's compliance with accreditation standards and internal audit standards. Betty Williams was hired to fill the second associate dean position. Williams had significant management experience in academic settings. She had served as an academic dean for one of the School's competitors and had extensive knowledge and experience with compliance accreditation standards. As compared to Petitioner, Williams was a much better fit for the position. Her experience would allow her to step into the position and begin working on problems immediately without the necessity of a period of training and acclimation. Director of Student Services Position The director of Student Services was expected to help students who were experiencing hardships in their academic progress. The director would help students who were forced to withdraw from school for financial or other personal reasons. He/she would provide support for students taking online classes and assist students trying to re-enroll into school following dismissal or withdrawal. A close working relationship with students was an important factor in this position. The School's job description listed the following requirement for the director of Student Services position: Bachelor's degree required Minimum of 3 years practical work experience or equivalent training Excellent communication and customer service skills Excellent computer skills The person who ultimately was hired for this position, Stacey Jacquot, was an outstanding employee at the School and had been selected as its Employee of the Year in two different positions. Jacquot is a Caucasian female; neither her religion, nor her place of natural origin was alluded to at final hearing. The hiring of Jacquot, as opposed to Petitioner, for this position was based on Jacquot's experience and background. She had worked in the student services department for the school as both an online coordinator and as a re-entry coordinator. Thus, her experience was directly related to the requirements of the position. Petitioner provided unsubstantiated testimony that by virtue of his teaching a number of classes over the past few years, he has some experience in counseling students concerning their issues. However, even if true, his experience did not match that of Jacquot. Request for Reimbursement for Doctoral Coursework Petitioner alleges retaliation by the School. The specific retaliatory action was the denial of his request to be reimbursed for coursework as he pursued a doctorate degree. In February 2010, Petitioner submitted a request to the School, asking that tuition expenses for his coursework be paid under the School's tuition reimbursement program. The program is set forth in policies maintained by the School and is available to "eligible employees for eligible classes." A benchmark for reimbursable tuition is that the courses being taken enable the employee to be more efficient in a current role or prepare them for a role at the next level of their employment. There are a number of written policies addressing the tuition reimbursement program. Those policies are fluid and have changed from time to time over the past few years. The policies are implemented and overseen by the director of Organizational Development for CCI, Jeanne Teeter. Teeter resides and works in California, corporate home of CCI. It is Teeter's duty to ultimately approve or deny all requests for tuition reimbursement by employees of all of CCI's colleges around the country. Teeter reviewed Petitioner's request for tuition reimbursement pursuant to a preliminary approval by the School's president, Mark Judge. It was Judge's initial decision to approve Petitioner's request, but Judge sent it to Teeter for a final decision. Teeter had never met Petitioner and did not know anything about him, except as found in his personnel file and his application for tuition reimbursement. Teeter, as was her normal procedure, considered the relevance of the degree being sought, not only to Petitioner's current role, but as to potential future roles as well. Because the course work for which reimbursement was being sought related to an advanced degree, a doctorate, Teeter was less inclined to approve it. Approval would necessitate a clear line of sight between the employee's current role to a role that would require a Ph.D. Inasmuch as Petitioner's role as senior network administrator did not require a doctorate and there was no clear line of sight between his present position and that of a professor or management employee requiring one, Teeter declined the request. At the time she made her decision, Teeter was not aware that Petitioner had made a discrimination claim against the School. Her decision, therefore, could not be retaliatory in nature. Rather, she acted in concert with the policies that address tuition reimbursement and made a decision based solely upon those policies. Petitioner appears to be an energetic and hard-working member of the School's staff. His testimony was credible, but was sometimes off the point. Although he is a well-educated person with three college degrees and is pursuing others, it is clear that English is his second language.1/ Petitioner seemed to be sincere in his belief that he was discriminated against, but did not provide persuasive evidence to support that claim.
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 by Hisham Aboudaya in its entirety. DONE AND ENTERED this 21st day of November, 2011, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of November, 2011.
The Issue The issue for determination is whether Respondent committed an unlawful employment act by discriminating against Petitioner on the basis of marital status in violation of the Florida Civil Rights Act of 1992, as amended.
Findings Of Fact In June 2008, Dr. Hernandez was hired at the University as a faculty member of the School of Pharmacy in the position as a professor. She had a one-year employment agreement, with no presumption of renewal and a starting salary of $97,000.00. At all times material hereto, Dr. Hernandez was divorced. Dr. Hernandez had been divorced from her husband since 1995. The University was aware that Dr. Hernandez was divorced when she was hired. She had been recruited by the University's then Dean of the School of Pharmacy, Dan Brown, who, at that time, was also divorced. Marital status is not a factor in hiring an employee by the University. Dr. Hernandez's marital status was not a consideration or a factor in her hiring. By February 15th of each year, faculty members are notified whether their employment contract will be renewed for the following year. If a faculty member is not notified by February 15th that their contract will not be renewed, the faculty member's contract is automatically renewed for another year. Dr. Hernandez's contract was renewed for the 2009-2010 academic year. Spring 2010 Dean Brown was one of Dr. Hernandez's supervisors. For all the professors in the School of Pharmacy, Dean Brown prepared and distributed a list of all of their current work load ratios. The goal for all Pharmacy professors was a ratio of 0.8. Dr. Hernandez's work load ratio was 0.68, which was below the goal. She failed to meet the goal of the work load ratio for all Pharmacy professors. Dr. Hernandez refused to accept the work load ratio as a reliable tool of performance and considered it as irrelevant to her. She did not express or exhibit an interest in improving her work load ratio. Also, Dean Brown prepared and distributed a comparative analysis of student surveys of all the Pharmacy professors. Students were requested to score the performance of all the Pharmacy professors in 12 different areas. Based on the student surveys of faculty performance, Dr. Hernandez was the second lowest ranked Pharmacy professor. She scored very low in the following areas: "presents material in concise, organized, easy-to-follow manner" and "is an effective teacher." Dr. Hernandez refused to accept the student surveys as a reliable tool of performance and had no interest in the comparative analysis from the student surveys. Additionally, she failed to express or exhibit an interest in improving in those areas in which the students gave her a low ranking. During his supervision of Dr. Hernandez, Dean Brown received several complaints from faculty members regarding emails that they had received from her. The faculty members considered the emails to be "caustic," "obnoxious," and "insulting." As a result, Dean Brown met with her and advised her to stop sending antagonistic emails and insulting her fellow faculty members. One week later, Dr. Hernandez sent such an email to a fellow professor, Mary Ferrill, Ph.D. Dr. Ferrill was married to Dean Brown. Dr. Hernandez's email insinuated that Dr. Ferrill received special treatment because she was married to Dean Brown and asked whether she "sang and danced" for her students. Both Dean Brown and Dr. Ferrill considered the email to be insulting and confronted Dr. Hernandez. Dean Brown raised his voice at Dr. Hernandez when he confronted her because he was very upset in that he had, only a week earlier, advised her to stop sending antagonistic and insulting emails to fellow faculty members. Dean Brown admitted to the University's Human Resources Office that he was wrong in raising his voice to Dr. Hernandez, and he apologized to Dr. Hernandez. Because of the confrontation with Dean Brown, Dr. Hernandez was fearful that her contract would not be renewed. Many of the classes at the School of Pharmacy are team taught: one course coordinator with several faculty members teaching segments of the course. Essential to team teaching is faculty members exhibiting team work. Dr. Hernandez was one of the team members who taught PHR 2264, Endocrinologic and Musculosketal Pharmacotherapy. The course coordinator was Professor Dana Brown, Ph.D. Dr. Hernandez repeatedly failed to meet established deadlines for team members in PHR 2264. Exam questions from team members for PHR 2264 were to be submitted to Dr. Dana Brown two weeks before the scheduled exams. Her responsibility was to carefully review all questions, including how the questions overlapped with questions submitted by other faculty members. Dr. Hernandez failed to submit timely her exam questions, forcing Dr. Dana Brown to follow-up with Dr. Hernandez regarding the questions. Further, Dr. Hernandez would generally not inform Dr. Dana Brown ahead of time that she would be submitting her exam questions late. On one occasion, Dr. Hernandez submitted her exam questions only one day before the exam. Additionally, exam lectures were to be posted 48 hours in advance of a class. Dr. Hernandez failed to post her exam lectures 48 hours before she taught her class and, generally, posted the exam lectures the night before her class. Students complained to Dr. Dana Brown that Dr. Hernandez was difficult to understand. Dr. Dana Brown observed some of Dr. Hernandez's lectures and thought that Dr. Hernandez failed to answer students' questions. Also, on one occasion, Dr. Dana Brown, responding to an email that she received from Dr. Hernandez, hit "reply all." Dr. Hernandez became upset and raised her voice to Dr. Dana Brown because the response went to persons other than Dr. Hernandez. Dr. Dana Brown spoke to Wagdy Wahba, Ph.D., the then Interim Associate Dean, of the School of Pharmacy several times regarding the problems that she was having with Dr. Hernandez. Summer 2010 In the summer 2010, Dean Brown stepped down as Dean of the School of Pharmacy to focus on teaching. In August 2010, Dr. Ferrill became the Dean of the School of Pharmacy. Fall 2010 Faculty Activities Plan and Report The School of Pharmacy uses a performance instrument for its professors, referred to as a Faculty Activities Plan and Report (FAPR), which is, basically, an evaluation of a professor's performance in the previous year and expectations for the future. A FAPR that shows significant student or faculty concerns about teaching or collegiality is considered deficient. Dr. Wahba completed the FAPR for all faculty members of the School of Pharmacy. Dr. Wahba was Dr. Hernandez's immediate supervisor. He completed her FAPR. In October 2010, Dr. Hernandez received her FAPR from him and met with him to discuss it. In the "Dean's Comments" section for the FAPR, Dr. Wahba included the following issues that he determined that Dr. Hernandez needed to address: [a.] Not showing up for scheduled class in February 2010, and not sending the recorded lecture to the students until 21 days later. [b.] How to improve relationship, communication & cooperation with other faculty & coordinators within the team-taught courses. [c.] How to avoid reactive responses to concerns expressed by colleagues & administration, verbally and via e-mail[.] [d.] Currently not posting lectures on e- college in a timely fashion according to school policy[.] [e.] Currently not submitting exam questions to coordinators in a timely fashion[.] [f.] Showing up late or not at all to scheduled review sessions and committee meetings[.] Dr. Wahba and Dr. Hernandez discussed his comments. Additionally, Dr. Wahba noted in the Dean's Comments section that, of great concern, was how Dr. Hernandez was going to address the negative comments from students in her student surveys. The students' comments mainly revolved around Dr. Hernandez's disorganized lecture presentations and her difficulty in explaining material clearly. During the meeting in October 2010 with Dr. Wahba on the FAPR, Dr. Hernandez showed no willingness to improve in the areas that he had determined deficient. Further, she took the position that she had no deficiencies in her performance and demanded proof from him of her deficiencies. After the October 2010 meeting, Dr. Wahba met with Dr. Hernandez a second time to discuss her FAPR. She continued to resist his efforts to address the areas determined by him to be deficient. After the meetings, the next step in the FAPR process was for Dr. Hernandez to respond to Dr. Wahba's comments with a written plan of action and to sign the FAPR. She failed to do so. She was the only faculty member of the School of Pharmacy who did not complete the FAPR process. Dr. Hernandez blames Dr. Wahba for her not completing the FAPR process, taking the position that his responsibility was to "pursue" her to complete the FAPR process. December 13, 2010 Meeting As Dean of the School of Pharmacy, one of Dr. Ferrill's responsibilities was to review the FAPRs of the School of Pharmacy's faculty. In the fall of 2010, three faculty members had deficient FAPRs: Dr. Hernandez; Luna Bennett, Ph.D.; and Devon Sherwood, Ph.D. Dr. Ferrill met with each of them to discuss their deficient FAPR. Before meeting with Dr. Hernandez, Dr. Ferrill met with Dr. Wahba and discussed Dr. Hernandez's FAPR. Dr. Wahba advised Dr. Ferrill that he had reached an impasse with her in that she had never responded to his comments in the FAPR. On December 13, 2010, Dr. Ferrill met with Dr. Hernandez to discuss her FAPR and her plans to improve on the deficiencies. Others who attended this meeting included Dr. Wahba and Keysha Bryant, Ph.D., a professor in the School of Pharmacy. During the meeting, Drs. Ferrill and Wahba discussed areas in which Dr. Hernandez's performance was good. Further, they discussed the areas of deficiency and informed her that she needed a plan of action to improve in those areas. Additionally, Dr. Ferrill advised Dr. Hernandez that she was at risk of non- renewal of her contract unless she made strides to improve on her areas of deficiency. During the meeting, Dr. Hernandez was not receptive to the discussion regarding her deficiencies. She indicated, among other things, that nothing was wrong with her teaching skills and that she saw no reason to change what she was doing. Additionally, when queried about her plan of action to address the negative comments in the FAPR, she became emotional and raised her voice. Sometime near the end of the meeting, Dr. Hernandez expressed that she was emotionally upset, explaining that her ex- husband was ill and that she was taking care of him. Without questioning from anyone, she stated voluntarily that her ex- husband was living with her, indicating that she recognized that she was sinning in the University's eyes, but not in the eyes of God. The University has a policy against members of the University, including faculty and students, having extramarital sexual relationships. The policy prohibits a member of the University from having extramarital sexual relationships regardless of whether the subject person was divorced, single, or married to someone other than the person with whom the subject person was having a sexual relationship. Dr. Ferrill believed that Dr. Hernandez was admitting to violating the University's policy on extramarital sexual relationships. Dr. Ferrill questioned her further as to whether she was having an extramarital sexual relationship with her ex- husband, but Dr. Hernandez refused to answer. Prior to the meeting on December 13, 2010, Dr. Hernandez had never spoken of her living arrangement or sexual relations with her ex-husband to Dr. Ferrill. Further, prior to the meeting on December 13, 2010, Dr. Ferrill was not aware of Dr. Hernandez's living arrangements. Dr. Ferrell believed that she was required to report any University policy violation or potential violation of which she was or became aware. As a result, Dr. Ferrill advised Dr. Hernandez that she (Dr. Ferrell) was required to report the potential policy violation to her (Dr. Ferrill's) supervisor. After the meeting on December 13, 2010, Dr. Ferrill reported to Provost Joseph Kloba that Dr. Hernandez had admitted to violating the University's policy against extramarital relations. Once Dr. Ferrill made the report to Provost Kloba, she considered that her duty to report was fulfilled. Dr. Ferrell spoke to no one else regarding Dr. Hernandez's living arrangements. Provost Kloba determined that no violation of the University's policy existed and that no further action was warranted. Once Provost Kloba made his decision, Dr. Ferrill considered Dr. Hernandez's living arrangements to be a non-issue. Dr. Hernandez's Living Arrangements In October 2010, Dr. Hernandez's ex-husband had a health crisis while visiting family in Georgia. Due to his health crisis, he suffered, among other things, cognitive deficits and became totally disabled. In November 2010, Dr. Hernandez moved her ex-husband to E. J. Healey Rehabilitation Facility in West Palm Beach, Florida. He remained at the facility until March 2011. The evidence demonstrates that no one at the University was aware of Dr. Hernandez's living arrangements until the meeting on December 13, 2010. Post December 13, 2010 Meeting and Non-Renewal of Contract After the meeting on December 13, 2010, Drs. Ferrill and Wahba gave Dr. Hernandez an extension to respond to her FAPR. Three days later, on December 16, 2010, Dr. Hernandez submitted her response. In her response, Dr. Hernandez indicated that there was no need to make any significant improvements. Further, she indicated that she did not understand the issues presented and would discuss the comments with the University's Human Resources Office. As to students' critical comments, she indicated that she did not know what to do with the comments, but would conduct a research project about it. In January 2011, Dr. Hernandez participated in a group interview conducted by the School of Pharmacy for the position of Dean of Faculty. The interviewee was Seena Haines, Ph.D. Dr. Hernandez asked Dr. Haines questions which appeared to relate to the spring 2010 incident that Dr. Hernandez had with then Dean Brown when he confronted Dr. Hernandez about the email she (Dr. Hernandez) had sent to Dr. Ferrill. Dr. Hernandez's questions to Dr. Haines were considered by Dr. Ferrill to be inappropriate for a group interview; by Dr. Dana Brown to be unprofessional; and by Dr. Wahba to be out of place. Dr. Ferrill recommended to Provost Kloba that Dr. Hernandez's contract not be renewed for another year. Dr. Ferrill's recommendation was based upon the deficiency issues identified in the FAPR regarding Dr. Hernandez's teaching and collegiality and upon Dr. Hernandez's lack of interest in improving her deficiencies. Provost Kloba, who was also the Chief Academic Officer, was responsible for making the decision as to whether to renew Dr. Hernandez's contract. He reviewed, among other things, her FAPRs, including the student comments and her responses, and received feedback from Drs. Ferrill, Wahba and Brown (Dean Brown in spring 2010). Provost Kloba decided to not renew Dr. Hernandez's contract for another year. Dr. Hernandez's living arrangements were not considered and were not a factor in Provost Kloba's decision of non-renewal. Regardless with whom Dr. Hernandez was living, Provost Kloba would not have renewed her contract. By letter dated February 1, 2011, Provost Kloba informed Dr. Hernandez that her contract would not be renewed for another year. By letter dated February 4, 2011, Provost Kloba informed Dr. Hernandez that, effective February 1, 2011, through June 30, 2011, she was placed on paid administrative leave. She received all pay and benefits through the expiration of her annual contract, i.e., June 30, 2011. Divorced Faculty Members The evidence demonstrates that the University employs several faculty members who are divorced. The evidence demonstrates that Dr. Brown (Dean Brown) is divorced. Comparative Employees The evidence fails to demonstrate any similarly situated employee who was not divorced and was treated more favorably than Dr. Hernandez. The evidence fails to demonstrate any employee who was accused of the same or similar conduct and was treated more favorably than Dr. Hernandez. Current Employment Currently, and since January 2012, Dr. Hernandez is a Professor of Medical Sciences at California North State University, College of Pharmacy. She is subject to a yearly appointment. Her yearly salary is $110,000.00.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the discrimination complaint of Maria Hernandez, Ph.D. DONE AND ENTERED this 4th day of February, 2013, in Tallahassee, Leon County, Florida. ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of February, 2013. COPIES FURNISHED: Stuart Silverman, Esquire Stuart Silverman, P.A. Post Office Box 812315 Boca Raton, Florida 33481 Peter L. Sampo, Esquire Lisa Ann McGlynn, Esquire Allen, Norton and Blue, P.A. 121 Majorca Avenue, Third Floor Coral Gables, Florida 33134 Denise Crawford, Agency Clerk Florida Commission on Human Relations Suite 100 2009 Apalachee Parkway Tallahassee, Florida 32301 Cheyanne Costilla, Interim General Counsel Florida Commission on Human Relations Suite 100 2009 Apalachee Parkway Tallahassee, Florida 32301
The Issue The issue in the case is whether the Polk County School Board (Petitioner) has just cause for terminating the employment of Respondent, David McCall.
Findings Of Fact At all times material to this case, the Respondent was employed by the Petitioner under a professional services contract as a classroom teacher at Lake Region High School, a unit of the Polk County Public School System. On Wednesday, October 3, 2007, a student entered the Respondent’s classroom approximately ten minutes after class had commenced. The student’s tardiness was apparently related to her participation as a donor in a blood drive occurring at the school on that date. At the time the student entered the classroom, the Respondent was engaged in administering a standard quiz, and the time allotted for the quiz was about to end. The Respondent directed the student to remain outside the classroom and take the quiz. The student advised the Respondent that she donated blood and, feeling dizzy, had hit her foot on a doorway. She told the Respondent that she injured her toe and requested that she be allowed to go to the school clinic. The Petitioner presented a statement allegedly written by the student asserting that her toe was bleeding at the time the Respondent observed the toe. The student did not testify, and the written statement is insufficient to establish that the toe was bleeding at the time she entered the classroom. The Respondent testified that he observed the toe and saw perhaps a minor abrasion but saw no evidence of serious injury. The Respondent declined to refer the student to the clinic and again instructed the student to remain outside the classroom and complete the quiz. The student remained outside the classroom and presumably began taking the quiz. Shortly thereafter, another teacher walking in the hallway observed the student sitting outside the Respondent’s classroom with a paper towel under her foot. The teacher observed the student shaking and blood on the towel and asked the student about the situation. The student advised the teacher of the circumstances, stating that she felt like she was going to “pass out.” The teacher, with the assistance of a third teacher, obtained a wheelchair, retrieved the student’s belongings from the Respondent’s classroom, and advised the Respondent that the student was being taken to the clinic. After the student was transported to the clinic, her mother was called. The mother came to the school and retrieved her daughter, observing that the toe was bloody and swollen. The mother subsequently took her daughter to a doctor and testified that the student was referred for x-rays of the injured toe. Later on October 3, 2007, the student’s mother contacted the school principal, Joel McGuire, to inquire as to the manner in which the matter had been handled by the Respondent. The principal advised the mother he would follow up on her inquiry. On Thursday morning, October 4, 2007, Principal McGuire sent an email to the Respondent and asked him to come to Principal McGuire’s office during a planning period or after 2:30 p.m. “to confirm some information” about the student. The Respondent did not respond to the email and did not comply with Principal McGuire’s request to meet at that time. After receiving no response from the Respondent, Principal McGuire left a copy of the email in the Respondent’s mailbox at approximately 2:30 p.m. on Thursday, October 4, 2007, with a handwritten note asking the Respondent to come to the principal’s office on the following Friday morning “before school.” The Respondent did not respond to the note left in the mailbox and did not appear at the principal’s office prior to the start of Friday classes. Based on the lack of response, Principal McGuire sent another email to the Respondent on Friday, October 5, 2007, and asked him to come to the principal’s office at 6:30 a.m. on Monday. The email advised that the meeting was “to discuss the situation which occurred on Wednesday, October 3rd” so that the principal could respond to the mother’s inquiry. Although the Respondent was routinely present on the school campus by 6:30 a.m. on school days, the Respondent replied to the principal and declined to meet at that time, stating that the “proposed meeting time is not within my contracted hours.” The principal thereafter emailed the Respondent and requested that he come to the principal’s office at 10:30 a.m. on Monday, October 8, 2007. The email stated as follows: Mother is really needing information concerning the situation which took place in your class. I do need to meet with you and provide a response to her. I believe 10:30 a.m. is during your planning period. Thanks for coming by my office. The principal received no response to this email and the October 8, 2007, meeting did not occur. The principal thereafter sent a letter to the Respondent dated October 12, 2007, which stated as follows: I am requesting a meeting with you Monday, October 15, 2007, at 8:00 a.m. I will provide a substitute in your classroom in order for you to meet with me. The meeting will be very brief. I need some information about [student], a student you had in 2nd period geometry, in order to inform her mother. This is the sixth request for a meeting. Failure to comply with my request will be deemed insubordination and will require additional actions. The Respondent attended the meeting, but refused to provide any information, stating, “I am not going to respond to you.” By letter dated October 22, 2007, the Respondent received a written reprimand for his “refusal to assist in the investigation of an incident involving [student] on October 3, 2007." The letter advised that the first step of progressive discipline, a verbal warning, was being omitted because of the “seriousness of your actions and the possible consequences.” In relevant part, the letter provided as follows: Attached to this letter is my memorandum setting forth the events and facts as I have best been able to determine. As indicated, you have been uncooperative in our effort to investigate the facts surrounding this incident. Most significantly, when we were finally able to meet in my office on October 15, 2007, you refused to discuss the circumstances surrounding [student’s] situation and you stated specifically, “I am not going to respond to you.” This situation involved an injured student and our school’s response to that incident. Your refusal to assist or participate in the investigation is contrary to your obligation as a teacher to respond suitably to issues of a student’s health and welfare, is adverse to the school’s obligation to address concerns of the parents, and is completely contrary to your obligations as an employee of the Polk County School Board. Please understand that this letter of reprimand is addressed solely to your refusal to participate, cooperate or assist in the investigation of this incident. Should the outcome of the investigation indicate that your conduct in dealing with the student was inappropriate, I am reserving the right to request further disciplinary action by the Superintendent. Please note that a suspension without pay is the next step in progressive discipline as set forth in the Collective Bargaining Agreement. In conclusion, the letter directed the Respondent to prepare a signed “full written report” of the incident, including “your recollections and observation of the events and your justification for your actions you took in response to this incident.” The letter directed the Respondent to deliver the report within five days of the Respondent’s receipt of the letter and, further, stated that “refusal to take such action and to cooperate in the investigation may have serious consequences regarding your employment.” The memorandum attached to the letter provided a chronology of events identifying all participants and specifically referencing the principal’s multiple attempts to obtain information from the Respondent. The Respondent failed to provide the written statement as required by the October 22, 2007, letter of reprimand and failed to otherwise provide information to the Petitioner. By letter dated November 15, 2007, from Principal McGuire to Superintendent Dr. Gail McKinzie, the principal requested that the superintendent issue a five-day suspension without pay to the Respondent for “gross insubordination.” The letter misidentified the date of the incident as October 4, 2007. By letter dated November 29, 2007, the superintendent suspended the Respondent without pay for five days. The letter, repeating the misidentification of the date of the incident, stated in relevant part as follows: On October 4, 2007, you denied a student’s request to go to the school clinic. It was determined that the student had a broken toe. Your administrator, Joel McGuire, has made six verbal requests and two written requests for information on this incident. The last request was made on October 22, 2007, in a formal letter of reprimand which stated “your refusal to take such action and to cooperate in this investigation may have serious consequence for your employment. This recommendation for a five day suspension without pay is provided for in Article IV section 4.4-1 of the Teacher Collective Bargaining Agreement and is a result of your continued insubordination and refusal to follow the requests of your immediate supervisor. Please be advised that future incidents of this nature may result in additional disciplinary action. The letter of suspension advised the Respondent that the suspension would be in effect from December 5 through 7, 10, and 11, 2007, and that he should report back to work on December 12, 2007. The Respondent served the suspension without pay. In a letter dated December 13, 2007 (“Subject: October 4, 2007, incident”), from Principal McGuire, the Respondent was advised as follows: I have made repeated verbal and written requests from you for your explanation of the events in which you participated on October 4, 2007, involving a student requiring medical attention. This is my final request to you for a written explanation of those events. You are herby directed to report to my office at 10:30 a.m. on Monday, December 17, 2007, and you are instructed to have with you at that time a written explanation of the events in question. You shall also be prepared to answer any questions regarding what occurred on that day and the actions you took. You should not have any classes at that time, but I will provide coverage for you if for any reason that is required. Please understand that this is a very serious matter, and you have previously received a five day disciplinary suspension. The next step in progressive discipline is termination, and insubordination can be just cause for termination. I hope that you will conduct yourself appropriately, if you wish to remain an employee of the Polk County School Board. On December 17, 2007, the Respondent appeared at the principal’s office at the appointed time, but asserted that he had not been involved in any incident on October 4, 2007, and declined to otherwise provide any information. Although the date of the incident, October 3, 2007, had been misidentified as October 4, 2007, in the referenced series of letters, there is no evidence that the Respondent was unaware of the specific event about which the information was being sought. It is reasonable to presume that the Respondent was fully aware of the matter being reviewed by Principal McGuire. In response to the December 17, 2007, meeting, Principal McGuire issued a letter dated December 18, 2007 (“Subject: October 3, 2007, incident”), essentially identical in most respects to the December 13, 2007, letter and correcting the referenced date. The letter scheduled another meeting for 10:30 a.m. on December 19, 2007. On December 19, 2007, the Respondent appeared at the principal’s office at the appointed time and declined to answer any questions, stating that he was invoking his rights under the Constitutions of the State of Florida and the United States of America. By letter to Superintendent McKinzie dated January 2, 2008, Principal McGuire recommended termination of the Respondent’s employment. Principal McGuire restated the chronology of the October 3, 2007, incident and wrote as follows: I have made repeated verbal and written requests of Mr. McCall to provide an explanation of the circumstances in order to include them in our investigation of the events. He refused to comply with each of those requests. He received a formal letter of reprimand and a five-day suspension without pay for his gross insubordination. Since his suspension, I have made written requests of Mr. McCall to provide an explanation of those events, and he has blatantly refused to do so. By letter also dated January 2, 2008, Superintendent McKinzie notified the Respondent that he was being suspended with pay and that she would recommend to the full school board that his employment be terminated. The letter set forth the grounds for the termination as follows: Since the incident on October 3, 2007, you have refused repeated verbal and written requests by the school administration to provide an explanation of the events which occurred on that date or to otherwise participate in the investigation of those events. As a result of your refusal to provide an explanation or participate in the investigation, you have received a formal written reprimand and a five-day suspension without pay. Since your suspension, you have again refused specific requests by your principal to provide an explanation of these events. Based on these facts, it is my opinion that you have intentionally violated the Principles of Professional Conduct of the Education in Florida by failing to make reasonable efforts to protect a student from conditions harmful to learning and/or the student's mental and/or physical health and/or safety (Rule 6B-1.006 FAC). Further you have engaged in ongoing, gross insubordination by repeatedly refusing to take certain actions which are a necessary and essential function of your position as a School Board employee. Progressive discipline, as specified in the applicable Collective Bargaining Agreement, has been followed in this case, and the next step of progressive discipline is termination. Therefore, it is my conclusion that "just cause" exists for your termination as an employee of the Polk County School Board. The Respondent requested a formal administrative hearing to challenge the termination, and the Petitioner referred the matter to the Division of Administrative Hearings. Prior to the instant hearing, the Respondent made no effort to provide any information to the Petitioner regarding the events of October 3, 2007.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner enter a final order terminating the employment of David McCall. DONE AND ENTERED this 20th day of May, 2008, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 20th day of May, 2008. COPIES FURNISHED: Donald H. Wilson, Jr., Esquire Boswell & Dunlap, LLP 245 South Central Avenue Post Office Drawer 30 Bartow, Florida 33831 David McCall 3036 Spirit Lake Drive Winter Haven, Florida 33880 Dr. Gail McKinzie, Superintendent Polk County School Board Post Office Box 391 Bartow, Florida 33831-0391 Deborah K. Kearney, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Dr. Eric J. Smith, Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue Should Respondent's tenure status be removed and he be terminated from employment with Hillsborough Community College because of the matters set out in the Amended Statement of Charges and Petition For Dismissal filed in this matter?
Findings Of Fact At all times pertinent to the matters in issue herein, the Petitioner, Hillsborough Community College, was a public institution of higher education, with four campuses, two extension centers, three environmental centers, and several other operations located in Hillsborough County, Florida. Respondent, Professor Joseph P. Boyle, was a tenured faculty member on the instructional staff located at the Dale Mabry campus. He has been with the College for more than 20 years. The College's Board of Trustees ordinarily meets once a month at the Administrative Center on Davis Island. The meetings are open to the public, are publicized at least a week in advance, and are based upon a written agenda. Frequently, members of the public attend the meetings as do some faculty members, administrative staff and the press. The College President and the College Attorney also attend. At these meeting, the Board generally treats policy matters, expenditures, approval of consultant contracts, and audit reports, and there is also a provision for public comment. It is not at all unusual or inappropriate for Board members to be contacted by students, faculty members or the public about school matters. Joaquin M. Campo, the President and Chairman of a Tampa engineering firm, served as Board President from July, 1990 to July, 1991. He has been contacted by outsiders about matters and when that happens, he tries, as best he can, to follow up on the contact. It is his practice to respond to any personal contact and to any signed letter which, he immediately forwards to the College President for investigation. To the best of his recollection, Respondent had previously called him about something into which he made inquiry and thereafter, Respondent began to communicate with him regularly on a variety of matters. This did not annoy him at all, and in each case, he tried to get the answer to the Respondent's problem. On August 27, 1990, Mr. Campo received a letter from the Respondent complaining about comments purportedly made by President Paloumpis. If true, these allegations would be considered serious. Professor Boyle followed the first letter with phone calls and repeated additional letters, as a result of which, Mr. Campo asked him to come up with some hard evidence in support of his allegations. Campo made this request several times, and no such evidence was ever forthcoming. Finally, Campo asked the College's Auditor, Mr. Watkins, who reports directly to the Board of Trustees, to look into Boyle's allegations and report what he found. Mr. Campo chose the Auditor so there would be no chance of improper influence being asserted by anyone else. At the same time, Mr. Campo also contacted the Respondent and asked him to cooperate with Mr. Watkins. By letter dated September 13, 1990, he reiterated that request in writing. At no time did Professor Boyle indicate he would not cooperate with the Auditor. At the time he brought the Auditor in, Mr. Campo had not formed any opinion as to Boyle's allegations. Sometime later, in February, 1991, Mr. Campo received another letter from Respondent complaining about the mechanics of selection for appointment of the head of a department at the college. When he looked into these allegations, he found them to be untrue and, in fact, that that faculty member ostensibly appointed, Dr. Adams, had not been so appointed and had never applied for the position. Mr. Campo so responded to Mr. Boyle in writing and thereafter received another letter from the Respondent, dated February 22, 1991, which in a disrespectful and berating manner, scolded Mr. Campo for his reply and demanded an apology. Because this letter was incorrect and insulting, Mr. Campo advised Professor Boyle of his feelings. As it appears, however, this faculty member, Dr. Adams, was subsequently appointed Department head. Thereafter, by letter dated March 13, 1991, Mr. Boyle requested Mr. Campo resign as Chairman of the Board of trustees, citing alleged dereliction of duty and referring to nonexistent secret letters. That same day, Mr. Campo wrote to Professor Boyle and again asked him to come forward with proof to support his allegations and set a deadline of March 22, 1991 for him to do so. In writing this letter, Mr. Campo was trying to do his duty as Chairman to either prove or disprove allegations of wrongdoing and put them to rest. He got no response to the letter or any of the proof requested. All during this time, Mr. Watkins also was having his difficulties in dealing with Mr. Boyle regarding the investigation he had been requested to undertake. Immediately after being asked by Mr. Campo to look into Boyle's allegations, Watkins received a call from Mr. Boyle in which Boyle said Mr. Campo had asked him to meet with Watkins and provide the information. Boyle agreed to do so, but after several days, Watkins still had not again heard from Boyle. Though Watkins tried to contact Boyle, he found Boyle had no home phone and was only on campus at certain hours. Mr. Watkins went to the Dale Mabry campus during Boyle's office hours. When he arrived at Boyle's office, he found the door closed but he could hear voices from within. He knocked twice and a voice called out, "Who are you and what do you want?" When Watkins identified himself, Boyle opened the door, finished the phone call he was engaged in, and spoke with him. Boyle said he had not had time to collect the background information but that his letter to Mr. Campo stated the facts. When Mr. Watkins pointed out these were not facts but conclusions, Boyle agreed to get facts and said he would get back with Watkins in one week. Their agreement called for Professor Boyle to come to Watkins office with the information, but one day before the scheduled meeting, Boyle called to postpone it. Nonetheless, he showed up the next day without any independent proof, reasserted his position that his allegations spoke for themselves, and questioned Mr. Watkins' authority to conduct the inquiry. When Mr. Watkins explained his charter, Boyle dropped the subject. Mr. Boyle never did come up with any supporting proof of his allegations even though Mr. Watkins gave him several extensions of time. In fact, Boyle failed to contact Mr. Watkins again and when Watkins tried to reach him and couldn't, he again went to Boyle's office to see him. After Watkins waited for a lengthy time during which Professor Boyle dealt with students, Boyle finally stated he didn't have any time to deal with him. He stated he had been told by an unnamed party not to talk with Watkins, and left. Mr. Watkins reported to Mr. Campo both orally and in writing regarding the results of his efforts. Mr. Campo advised Mr. Watkins not to pressure Boyle too much because they really wanted the information. Finally, on November 6, 1990, Mr. Watkins again wrote to Professor Boyle asking for documentation supporting his allegations. Mr. Boyle neither responded with the documents nor requested more time, and Mr. Watkins has never received any documentation from Boyle in support of his charges. While Boyle cooperated at first, his attitude deteriorated to the point he was arrogant and uncooperative, and considering Watkins was working at the direction of the Chairman, even insubordinate. Finally, on November 19, 1990, Watkins wrote to Mr. Campo outlining the results of his efforts and the problems he encountered dealing with Professor Boyle. Thereafter, he was released from this investigation and has not, to this day, received any supplemental information from Professor Boyle. By letter dated March 27, 1991, Mr. Campo ordered Mr. Boyle to meet with him on April 9, 1991 at 2:00 PM in the College Administrative Office on Davis Island and to bring whatever support he had for the charges he had made. Mr. Campo made it clear this was not an optional meeting, and the Respondent's failure to appear would be considered to be insubordination. Nonetheless, Professor Boyle did not appear for the meeting nor did he either call in advance to seek a postponement or provide a subsequent explanation for his absence. On April 11, 1991, Mr. Campo again wrote to Mr. Boyle, pointing out the failure to appear on April 9 was insubordination, asking for an explanation in writing, and directing him to appear in person at the Administrative Office on Davis Island on April 22, 1991 at 2:00 PM. This letter also advised Boyle that if he could not make it, he was to advise Campo by phone no later than noon on April 22. Boyle neither showed up nor explained. April 9, 19, and 22, 1991 were work days when Professor Boyle could be expected to perform his duties. As Chairman of the College's Board of Trustees, Mr. Campo had the authority to direct any college employee to meet with him. His directions to Boyle to meet with him on those days were, therefore, lawful orders. Mr. Campo was present at the time and place scheduled for the meetings which he directed Professor Boyle to attend. To this day, Boyle has not explained his failure to appear as directed. Campo sought those meetings with Professor Boyle to get the facts surrounding the allegations Boyle had made. They were not designed to create a situation for which disciplinary action to get rid of Professor Boyle could be initiated. As a result of Professor Boyle's failure to appear as directed, Mr. Campo asked President Paloumpis to look into the matter to see if any action was appropriate. As a result, in June, 1991, Dr. Paloumpis recommended to the Board of Trustees that action to remove Boyle for insubordination be initiated. Mr. Campo agreed. At the open Board meeting where this matter was addressed, the Board, pursuant to discussion of the matter which had been published in advance on the regular publicized agenda, unanimously approved the recommendation to dismiss Professor Boyle. The Board meeting was publicized in advance along with the agenda, and Professor Boyle had the opportunity to appear before the Board to defend or explain his actions. He failed to do so. There is no evidence of any attempt to discharge Boyle because of his outspokenness. When Dr. Paloumpis received the copy of Professor Boyle's letter of complaint which Mr. Campo sent to him, he, also, wanted the matter looked into. At no time did he attempt to impede Watkins' investigation or, in fact, to speak with Watkins about it. As an administrator, he has been accused by others before of making bad decisions and of being unfair. He never takes such accusations personally, nor did he act on this allegation. His initiation of disciplinary action against Professor Boyle was taken at Mr. Campo's suggestion because of Boyle's insubordination. He reviewed the investigation and the succeeding failures by Boyle to meet with Mr. Campo and satisfied himself that grounds for discipline existed. Only then did he set the wheels in motion. On April 30, 1991, Dr. Paloumpis wrote to professor Boyle directing him to come to Paloumpis' office at 8:30 AM on May 3, 1991, normal business hours, to provide a doctor's certificate because Professor Boyle had a habit of calling in sick or having someone do it for him. Under the terms of the contract between the College and the union, the College has the right to have the faculty member submit to an independent medical examination under certain conditions. He also directed Boyle to contact his department head, Dr. Adams, by May 3, 1991, to set up the appointment with the doctor. Professor Boyle did not show up at either place on May 3, nor did he contact Dr. Paloumpis or anyone on his staff about it. Thereafter, on May 6, 1991, Dr. Paloumpis wrote to Professor Boyle asking for an explanation of his failure to appear as directed by him and by Mr. Campo. In this letter, he also gave Mr. Boyle an order to contact Ms. Bone, an executive assistant in Dr. Paloumpis' office to set up a time, at Professor Boyle's convenience, to meet with Paloumpis at Paloumpis' office. He also warned Professor Boyle that if he failed to appear, he, Paloumpis would recommend Dr. Boyle's suspension as a disciplinary action. Professor Boyle has never responded to this letter or complied with the directions therein. Dr. Paloumpis thereafter prepared the Petition for Dismissal and Explanation of Rights form and tried to serve them on the professor by regular US mail, by certified mail, and by process server. That copy sent by regular US mail was not returned undelivered, but the copy sent by certified mail was not accepted. The process server was able to effect service of the Petition on Professor Boyle, at his home, at 1:20 PM on June 28, 1991. It must also be noted that some of the letters to Professor Boyle which requested meeting with him were, in addition to being sent by mail, included in the envelope with his individual pay checks. When these checks were cashed, it was clear indication that Professor Boyle had received the meeting notices. None of the letters, all of which were also sent by US mail, were ever returned undelivered except for the copy of the Petition sent by certified mail. In addition to all the above, in the Fall of 1991, Dr. Paloumpis learned that several students had complained about Professor Boyle's behavior. Paloumpis received a call from the Dale Mabry campus that complaints had been received which had been put in writing and referred to the vice president in charge of that campus. When he asked what was going on, the complaints were referred to him. As a result of these complaints, Professor Boyle's supervisors recommended to Dr. Paloumpis that Boyle be placed on administrative leave because the pattern and manner of his relationship with his students indicated it would be better were he out of the classroom. Dr. Paloumpis' primary concern was for the students, many of whom wanted to drop the course they were taking from Professor Boyle. To do so, however, would be, for many of them, a financial and academic harship. Paloumpis wanted to avoid this, and as a result, Professor Boyle was relieved of his teaching duties and an adjunct professor brought in to teach the remainder of the course. This solved the students' problems and the complaints stopped. As a result of this reported aberrant classroom behavior by Professor Boyle, Dr. Paloumpis prepared the additional charges which were incorporated in the Amended Petition to Dismiss which he also submitted to the Board of Trustees. By memo dated September 23, 1991, Dr. Paloumpis notified Professor Boyle he was being placed on administrative leave with pay and that the new charges were being added to the Petition. At the same time, he notified Professor Boyle of his right to attend the Board meeting at which the additional charges were to be discussed. The charges were made an agenda item which was published and distributed. Professor Boyle did not appear at the Board meeting but was represented by counsel, Mr. Merkle. The Board heard the evidence relating to the additional charge and the presentation by Mr. Merkle on behalf of the professor. It nonetheless voted unanimously to add the new charge to the Petition for Dismissal. At no time has Professor Boyle ever given Dr. Paloumpis or any representative of the College any explanation of his allegedly aberrant classroom behavior which prompted the additional charge, save the presentation by Mr. Merkle at the Board meeting.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore, recommended that Professor Joseph P. Boyle be discharged from employment as a tenured faculty member at Hillsborough Community College for gross insubordination. RECOMMENDED this 19th day of March, 1993, in Tallahassee, Florida. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of March, 1993. COPIES FURNISHED: John M. Breckenridge, Jr., Esquire 2502 Rocky Point Road, Suite 225 Tampa, Florida 33607 Professor Joseph P. Boyle P.O. Box 327 Champlain, New York 12919 Robert W. Merkle, Esquire (Courtesy Copy) Merkle & Magri, P.A. 750 West Courtney Campbell Causeway, #1120 Tampa, Florida 33607 Martha K. Covington College Attorney Hillsborough Community College P. O. Box 31127 Tampa, Florida 33631-3127
The Issue Whether or not the Petitioner satisfied the requirements to be classified as a tenured teacher and was thereby entitled to the privileges and rights, afforded to persons employed by Respondent pursuant to the Duval County Teachers Tenure Act. Chapter 21-197, Laws of Florida, Acts of 1941, as amended by Chapter 70-671 and further amended by Chapter 72-576; and the education laws of the State of Florida and the rules and regulations promulgated pursuant thereto.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received and the entire record compiled herein, the following relevant facts are found. Petitioner, Mary C. Gristina (formerly Mary Helen Campbell), was employed as a full-time teacher from September, 1960 through June, 1964, by the Duval County School Board (Respondent). Petitioner was granted an approved professional leave of absence without pay beginning on August 21, 1964, through June 11, 1965, to pursue graduate studies toward her masters degree. (Joint Exhibit 2) Petitioner was granted an extension of professional leave without pay from August 23, 1965 through June 15, 1966, to continue studies toward completion of her masters degree requirements at Florida State University. The above facts are not herein disputed. What is in dispute however is Petitioner's assertion that during the period in which she was on an approved professional leave of absence from August 21, 1964 through June 15, 1966, she completed all of the requirements for establishing tenure, including teaching (for Respondent) for three (3) consecutive years and securing the requisite hours of continuing education during such time frame, thereby establishing her tenure rights. Respondent, on the other hand, contends that Petitioner failed to establish that she completed the requisite hours of continuing education to be qualified for tenure in the Duval County School System, either while employed or between consecutive years that she was employed. In further support of this contention that the Petitioner failed to qualify as a tenured teacher, Respondent points to the fact that Petitioner was reemployed as an instructional employee pursuant to an annual contract during the 1979-80 school year. (Joint Exhibit 8) Respondent failed to renew Petitioner's contract for the 1980-81 school year and further refused to employ Petitioner in any other capacity since the 1979-80 school year. Petitioner received notice of Respondent's non-renewal of her employment contract during the late spring of 1980 and at the conclusion of the 1979-80 school year, both orally from her principal and in writing from the personnel department of the Duval County School Board. (Joint Exhibit 9) In this regard, Petitioner was advised by letter dated July 31, 1980, in response to a follow-up of a telephone conversation with Gary Simmons, Respondent's Director of Personnel Systems, that the personnel office had no record of Petitioner having completed six (6) semester hours of college work during any three (3) consecutive years of employment with the School Board. In support of her position that she in fact satisfied the requirements for appointment as a tenured teacher pursuant to the requirements set forth in the Duval County Teacher Tenure Act, Respondent offered a transcript from Wagner College, Staten Island, New York, for three (3) semester hours' credit for Exploring Art in New York. That transcript shows an entrance date of July, 1964. Respondent rejected Petitioner's application for credit for the Wagner College course based on the fact that the entrance date of the art course was neither during any school year that she was employed nor between consecutive years that she was employed by the Respondent School System. (Joint Exhibit 5) During times material herein, Respondent had a procedure whereby instructional employees could request permission to substitute other educational work in lieu of the tenure law summer school course work requirements. 1/ Finally, Petitioner points out that she was handed a contract by a secretary while teaching during December, 1979, which she was not afforded an opportunity to review before executing. She was not therefore aware that she was in fact signing an annual contract for employment with the Respondent School Board. Petitioner contends that she completed her course work necessary to be qualified for a tenured teacher during the summer of 1964; however, she did not submit a transcript reflecting completion of such course work to Respondent because of her belief that she felt that she was employed as a tenured teacher and therefore, submission of the transcript was not required. In this connection, Personnel Systems Director Gary Simmons noted that if Petitioner had returned for employment and had taught during the 1964-65 school year, her services would have been continuous and she would have been employed as a tenured teacher under such a contract.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is hereby RECOMMENDED: That the Duval County School Board enter an order denying Petitioner's claim to be afforded the rights and privileges afforded teachers who have satisfied the Duval County Teachers Tenure Act and, in accordance therewith, that she be denied all additional relief requested such as reinstatement with back pay etc., pursuant to the Amended Petition for administrative hearing filed herein. RECOMMENDED this 9th day of September, 1982, in Tallahassee, Florida. JAMES E. BRADWELL, 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 9th day of September, 1982.
The Issue The issue is whether Respondent properly decided to deny Petitioner tenure and promotion.
Findings Of Fact On or about August 8, 1997, Petitioner began working for Respondent as an Assistant Professor in a tenure-earning position in the COE, Department of Health, Physical Education, and Recreation (DHPER). Because Petitioner was serving in a tenure-earning position, Respondent had to award her tenure by the end of six years of continuous full-time service or give her notice that Respondent would not offer her further employment beyond the end of the seventh year of employment. Petitioner received a copy of the applicable tenure criteria soon after she began her employment. The tenure criteria for scholarly publications required the following: (a) publish or show acceptance of at least three publications, including books, monographs, and articles in local, state, regional and national journals, which meet the peer-review process, not including abstracts/proceedings; (b) achieve additional publication credit, which may include individual citations in a text's quotes or credits for scholarly endeavors; and (c) present at least two papers at state, regional or national professional meetings. Petitioner also received a copy of Respondent's criteria for promotion from Assistant Professor to Associate Professor. The criteria state as follows in relevant part: The minimum number of publications will be three (3), which must be in indexed refereed professional journals, of which at least two (2) must list the candidate as the primary author. This includes, not in addition to, chapters in books, monographs for national use, and books. Chapters will treated as journal publications. The number of publications will be cumulative. Respondent is required to provide its faculty members with an annual faculty evaluation. For faculty members in tenure-earning positions, Respondent also is required to provide an annual tenure appraisal. On April 24, 1998, Petitioner received her 1997-1998 faculty evaluation. The evaluation reflected Petitioner's poor rating for evidence of papers or articles published in professional journals and/or of books published. There is no evidence that Respondent provided Petitioner with an annual tenure appraisal for the 1997-1998 academic year. Each academic term, Respondent and each of its faculty members, in tenured and non-tenured positions, sign an Assignment of Responsibility Form. The form lists the credit and non-credit generating activities and assigns a percentage of the employee's designated effort for each activity. The total percentage of designated effort for each academic term should equal 100 percent for one full-time-equivalent (FTE) faculty. The credit generating activities are specific student classes/courses. An assignment to teach courses with more than cumulative credit hours in the same semester is considered an overload. Faculty members on a nine-month pay plan are never required to accept an overload assignment. Assuming responsibility for designated effort in excess of 100 percent is strictly voluntary. Instructors receive additional pay beyond their base salary when they accept an overload assignment. Respondent always gives its nine-month faculty the opportunity to teach extra classes as an overload before hiring additional staff. The same is true for teaching summer school. Respondent's nine-month faculty has first choice to earn additional pay by teaching classes in summer school before Respondent hires adjunct professors. The nine-month faculty is not required to teach summer school. The non-credit activities include the following: supervision of cooperative education; (b) clinical instruction; (c) other instructional efforts (non-credit); (d) research; (e) public service; (f) academic advisement; (g) academic administration; (h) university governance; (i) leave of absence with pay; and (j) collective bargaining release time. There is no set percentage of designated effort for any particular non-credit activity. Respondent's faculty can always request that some percentage of their designated effort be attributable to one of the non-credit activities, such as research. In such a case, Respondent would assign the faculty member less designated effort to other non-credit activities such as academic advisement. In every case, tenure-earning faculty members know or should know that Respondent expects them to begin working on research projects when they are hired in order to meet the tenure criteria for scholarly publications within the required time frame. This is true regardless of whether they elect to teach overloads or summer school and regardless of whether they request and receive a specific amount of designated effort for research each academic term. Other than as set forth below, there is no evidence that Petitioner ever requested Respondent to assign her a greater percentage of designated effort to research. On April 28, 1998, Petitioner signed the Assignment of Responsibility Form for the 1998 Spring semester. The form indicates that 86 percent of Petitioner's designated effort was spent teaching five classes for a total of 13 credit hours. Her only other assignment was academic advisement, which represented 14 percent of her designated effort. Petitioner agreed to teach during the 1998 Summer B semester. She taught two classes for a total of 3 credit hours, representing 64 percent of her designated effort. She had no other assignments that summer. For the 1998 Fall semester, Petitioner accepted a teaching overload. She taught six classes for a total of 15 credit hours, representing 99 percent of her designated effort. She also performed academic advisement for 21 percent of her designated effort. In the Spring semester of 1999, Petitioner taught five classes for a total of 13 credit hours, representing 86 percent of her designated effort. She was assigned to perform academic advisement for the balance of her time, equal to 14 percent of her designated effort. On April 28, 1999, Petitioner received her 1998-1999 faculty evaluation form. The form again reflected her poor rating for evidence of papers or articles published in professional journals and/or books published. On June 1, 1999, Petitioner received a tenure appraisal for the 1998-1999 academic year. The appraisal informed Petitioner that she needed to improve in the research category. Specifically, she needed to publish and present at least three to four research articles within a five-year period before applying for tenure. For the Summer B semester of 1999, Petitioner taught two classes for a total of four credit hours, representing 84 percent of her designated effort. She had no other assignments that summer. In the Fall semester of 1999, Petitioner taught seven classes for a total of 16 credit hours, representing 106 percent of her designated effort. She also performed academic advisement for an additional 20 percent of designated effort. For the Spring Semester 2000, Petitioner taught six classes for a total of 14 credit hours, representing 93 percent of her designated effort. She served as an academic advisor for an additional 20 percent of her designated effort. On April 26, 2000, Petitioner received her 1999-2000 faculty evaluation form. The form indicates that Petitioner's research and creative ability were not applicable. The record does not show that Petitioner engaged in any scholarly presentations or research and writing projects during the 1999- 2000 academic year. In the Summer B term of 2000, Petitioner taught one class for a total of one credit hour, representing four percent of her designated effort. She did not have any other assigned duties that summer. For the Fall semester 2000, Petitioner taught seven courses for a total of 14.5 credit hours, representing 91 percent of her designated effort. She also agreed to devote three percent of her designated effort in each of the following areas: (a) research; (b) public service; and (c) academic advisement. In the Spring semester of 2001, Petitioner taught six classes for a total of 14 hours, representing 93 percent of her designated effort. She also was assigned the following responsibilities: (a) five percent of her time in research; (b) five percent of her time in public service; and (c) 10 percent of her time in academic advisement. For the Summer A term of 2001, Petitioner taught two classes for a total of three credit hours, representing 62 percent of her designated effort. In Summer B term of 2001, Petitioner taught two classes for a total of three credit hours, representing 65 percent of her designated effort. She had no other assignments that summer. On July 5, 2001, Petitioner received her annual faculty evaluation for the 2000-2001 academic term. Petitioner received a fair rating regarding evidence of papers or articles published in professional journals and/or of books published. On August 27, 2001, Petitioner received her annual tenure appraisal for the 2000-2001 academic term. The appraisal acknowledges that Petitioner had improved significantly in the areas of research and scholarly activities. According to the appraisal, Petitioner had made several research presentations, submitted articles for publication, and choreographed several dance pieces for the Orchesis Dance Concert and public school activity programs. The appraisal stated that after a few of Petitioner's research articles were published, she would be on par for complete satisfaction of the scholarly publications requirements. The August 27, 2001, tenure appraisal also commended Petitioner for her public service work. At the same time, the appraisal warned Petitioner not to commit too much of her time to public service because she might neglect other tenure criteria areas. The appraisal advised Petitioner that it was extremely important to balance her time between teaching, research, and service. In the Fall semester of 2001, Petitioner taught five classes, for a total of 16 credit hours, representing 96 percent of her designated effort. She spent 20 percent of her designated effort working as an academic advisor. For the Spring semester of 2002, Petitioner taught six classes for a total of 14 credit hours, representing 93 percent of her designated effort. She divided the balance of her designated effort as follows: (a) five percent to research; five percent to public service; and (c) 10 percent to academic advisement. In the Summer A term of 2002, Petitioner taught two classes for a total of three credit hours, representing 65 percent of her designated effort. She had no other assignments that summer. For the 2001-2002 academic term, Respondent did not perform a faculty evaluation or tenure appraisal of Petitioner. Dr. Virden Evans, Chairman of DHPER, gave Petitioner copies of the evaluation forms and requested that she perform a self- evaluation before meeting with him to discuss her performance. Petitioner never returned the evaluation forms to Dr. Evans. On September 9, 2002, Petitioner submitted her applications for tenure and promotion, together with a portfolio to document her qualifications. The tenure application listed the following two research projects as in progress: (a) a 2001 project titled "Exercise Adherence Among African-American Females"; and (b) a 2002 project titled "Perceived Stress and Burnout of MEAC Track and Field Athletes." There is no evidence that Petitioner completed, or submitted for publication, a paper or article based on either of these research projects. The tenure application also listed a 2002 research project titled "An Assessment of NCAA D-1A Academic Advisors Salaries", naming Petitioner as a contributing, but not leading participant. The application indicated that the participants in the study submitted the research project for acceptance at the 2003 American Alliance of Health, Physical Education, Recreation, and Dance (AAHPERD) 118th National Convention as part of its program and proceedings during a research consortium poster session. There is no persuasive evidence that the research project was accepted at the national convention in Baltimore, Maryland, as submitted. During the hearing, Petitioner presented evidence that the research project involving academic advisors salaries was submitted as a one-page abstract in May or June of 2002, and accepted in November or December 2002, for poster presentation at the February 2003 Southern District AAHPERD Convention, in Savannah, Georgia. There is no persuasive evidence that Petitioner timely provided Respondent with documentation of the abstract's acceptance as a poster presentation during a convention proceeding or that the research project resulted in a peer-reviewed written paper that was ever published other than as an abstract in the convention program. The tenure criteria at issue here specifically exclude abstracts/proceedings. Petitioner's tenure application listed several dance productions, naming her as the director and choreographer. It is apparent that Petitioner spent valuable time creating the dances, writing scripts for skits, designing costumes, etc. However, the greater weight of the evidence indicates that these creative activities are not scholarly publications in journals that meet the peer-review process. During the hearing, Petitioner presented evidence that she included a reference to her doctoral dissertation in her portfolio. The dissertation, entitled "A Comparison of Perceived Stress Levels of College Freshman Athletes and Non- Athletes" was published in 1987 by the Florida State University, College of Education, Department of Movement Science and Physical Education, in partial fulfillment of the requirement for Petitioner's degree of Doctor of Philosophy. The most persuasive evidence indicates that the dissertation is not a peer-reviewed scholarly publication in a journal or a book, completed by Petitioner within her tenure-earning time frame. Petitioner is credited as the author of one scholarly publication that meets the requirements of the applicable tenure and promotion criteria. In August 2002, Petitioner's article entitled "Introductory Activities in Elementary Physical Education Classes" was accepted for publication in the Winter 2003 Journal of the Florida Alliance for Health, Physical Education, Recreation and Dance. In September 2002, Dr. Evans continued to serve as Chairman of DHPER. As a tenured professor, Dr. Evans attended some of DHPER's Tenure and Promotion Committee meetings but did not vote on Petitioner's applications for two reasons. First, he abstained because, as Chairman of DHPER, he would have to make a recommendation on the applications to the COE Tenure and Promotion Committee. Second, Dr. Evans had a close professional relationship with Petitioner and reserved his input on her applications, hoping that she would meet the publication requirements before he had to take a position. Dr. Janet Sermon, COE's Assistant Dean for Academic Affairs, was one of DHPER's tenured faculty members. In the fall of 2002, Dr. Sermon often was required to act on behalf of the COE's Dean or, occasionally, in the capacity of COE's Acting Dean in recommending approval or disapproval of tenure and promotion applications to the University Tenure and Promotion Committee. Therefore, she did not participate in DHPER's Tenure and Promotion Committee meetings. She did not vote on Petitioner's applications due to this potential conflict of interest. Coach Bobby Lang was one of DHPER's tenured faculty members. He was on medical leave during the fall of September 2002. The most credible evidence indicates that Coach Lang had notice of Petitioner's pending applications but chose not to participate in DHPER's Tenure and Promotion Committee meetings while on medical leave. Coach Samuel Bogan was one of DHPER's tenured faculty. His coaching schedule made it difficult for him to participate in DHPER Tenure and Promotion Committee meetings. Coach Bogan had notice about Petitioner's pending applications but was absent when the DHPER Tenure and Promotion Committee voted on her applications. DHPER had four other tenured faculty members: (a) Dr. Steve Chandler; (b) Dr. Maria Okeke; (c) Dr. Barbara Thompson, Chairperson of DHPER's Tenure and Promotion Committee; and (d) Dr. Joseph Ramsey. DHPER's Tenure and Promotion Committee met for the first time on September 16, 2002. The committee did not consider Petitioner's application at that meeting. The DHPER Tenure and Promotion Committee met again on October 2, 2002, to vote on Petitioner's tenure and promotion applications. Coach Bogan, Dr. Evans, Dr. Sermon, and Coach Lang were not present for reasons stated above. A secret ballot on Petitioner's tenure application resulted in two (2) votes to deny and two (2) abstentions. A secret ballot on Petitioner's promotion application resulted in three (3) votes to deny and one (1) abstention. In a memorandum dated October 3, 2002, Dr. Thompson advised Dr. Evans of the committee's decision to recommend denial of Petitioner's request for tenure and promotion. In a letter dated October 4, 2002, Dr. Evans advised Petitioner of the committee's vote to recommend denial of her applications. In a letter dated October 8, 2002, Dr. Evans explained to Petitioner that the committee based its recommendation on the apparent lack of a sufficient number of publications. Subsequently, Dr. Evans recommended approval of Petitioner's applications to the COE Tenure and Promotion Committee. Thereafter, the COE committee voted to recommend denial of both applications. Subsequently, COE's Dean recommended denial of Petitioner's applications to the University Tenure and Promotion Committee. The University committee voted to recommend approval of Petitioner's promotion application and denial of her tenure application. Dr. Fred Gainous was Respondent's President during the time that Petitioner's applications were pending. Dr. Gainous had the responsibility to nominate candidates for tenure to Respondent's Board of Trustees, the entity with the authority to make final decisions granting tenure. The Board did not consider applications for tenure without such a nomination. Dr. Gainous did not nominate Petitioner for tenure before Respondent's Board of Trustees. President Gainous had authority to make the final decision regarding Petitioner's application for promotion. Dr. Gainous took no action in this regard because Petitioner's promotion was a moot question in light of the denial of her application for tenure and the issuance of a terminal contract for the 2003-2004 academic term. In a letter dated March 31, 2003, President Gainous advised Petitioner that her application for tenure was denied and that she would not be offered further employment beyond the end of her seventh year of employment. The letter states that the action was based on Petitioner's failure to meet the publication requirements of the COE. Dr. Gainous sent Petitioner a letter dated June 3, 2003. The letter advised Petitioner that her application for promotion was denied.
Recommendation Based upon the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered denying Petitioner tenure and promotion and terminating her employment. DONE AND ENTERED this 5th day of October, 2004, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD 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 5th day of October, 2004. COPIES FURNISHED: Avery D. McKnight, Esquire Ruth Nicole, Esquire Florida A & M University 300 Lee Hall Tallahassee, Florida 32307-3100 Patricia A. Tucker 2802 Primrose Lane Tallahassee, Florida 32301 Elizabeth McBride, General Counsel Florida A & M University 300 Lee Hall Tallahassee, Florida 32307-3100 Dr. Fred Gainous, President Florida A & M University 400 Lee Hall Tallahassee, Florid 32307-3100
The Issue Whether Respondent violated the Florida Civil Rights Act of 1992, as alleged in the Charge of Discrimination filed by Petitioner on November 30, 2000.
Findings Of Fact In November 1999, Respondent, Stetson University, (Stetson) advertised for applicants for a tenure track position on its faculty to begin in August 2000. The position was in the Department of Mathematics and Computer Science. The position advertisement read as follows: Stetson University invites applications for a tenure-track position beginning August, 2000. A Ph.D. in mathematics is required. Rank and salary will be commensurate with experience. The duties include teaching a broad range of undergraduate courses to both majors and non-majors, maintaining a program of scholarly activity, and undertaking university service. The teaching load is three courses per semester. Salary is competitive. The successful candidate will exhibit an enthusiasm and talent for teaching, support department standards for student performance, and contribute to the intellectual life of the department. Because all students in the College of Arts and Sciences must undertake a senior project, candidates should be committed to fostering undergraduate research. An interest in interdisciplinary work or applied mathematics is a strong plus. Stetson, Florida's first private university, is a small selective university of 2000 students. We are located in DeLand, Florida, 40 miles from Orlando and 20 miles from Daytona Beach. The department consists of seven mathematicians and four computer scientists, and has a variety of computing resources available, including computer- equipped teaching laboratories. Further information about out department is on our web page: http:www.Stetson.edu/departments/ mathcs/. Please send the following to the address below: letter of application, curriculum vitae, AMS cover sheet, a statement of mathematical interests, and a statement of teaching philosophy as it pertains to a liberal arts curriculum. Also arrange for three letters of reference, at least one of which addresses teaching. Dr. Grady Ballenger is Dean of the College of Arts and Sciences at Stetson. During the search to fill the faculty position in question, Dr. Ballenger appointed four individuals to serve on a search committee. He appointed Dr. Margie Hale as Chair of the committee, Dr. Erich Friedman, Dr. Michael Branton, and Dr. Kevin Riggs. Drs. Hale and Friedman, are faculty members in the mathematics department; Dr. Branton is Chair of the math department. Dr. Riggs is a faculty member of the physics department. Stetson routinely appoints one person from outside the department for which the position is advertised to serve on a faculty search committee. Dr. Hale sent a letter dated November 10, 1999, to Petitioner acknowledging that Stetson received his application. The letter also included the following: “Please make sure you have arranged for all of the items requested (listed below) to reach us as soon as possible.” The items listed at the bottom of the letter are “AMS cover sheet, letter of application, curriculum vitae, a statement of mathematical interests, a statement of teaching philosophy as it pertains to a liberal arts curriculum, three letters of reference, at least one of which addresses teaching.” The search committee used a system of stickers whereby each person had a particular color sticker. When a member of the search committee read and evaluated the file, the appropriate color sticker was placed on the file. The reader would place a check mark on the sticker which indicated the reader felt favorably about the application, an “X” if the reader was not interested in the application, and left it blank if the application was considered midline. Files that received two or more checks were put in a stack for further review. Stetson received at least 220 applications for the advertised position. The search committee narrowed the applicants to approximately 30 for further review. Petitioner’s application was not among the 30 finalists. Of those 30 finalists, 24 were interviewed at a national meeting held each year. The meeting is a joint meeting of the Mathematical Association of America and the American Mathematical Society. Drs. Friedman and Branton conducted those 24 interviews. The other finalists who did not attend the conference were interviewed by phone. After Drs. Friedman and Branton returned from the conference, the committee met and discussed Drs. Friedman and Branton’s evaluations of the persons interviewed. The committee narrowed the applicant pool to six finalists who were invited for an interview. By this time, the search had expanded to attempt to fill two faculty positions in mathematics. Of the six persons who received interviews on campus, an offer of employment was first extended to Dr. Hari Pulapaka. Dr. Pulapaka accepted the offer. Stetson intended to make an employment offer to one other of the six finalists. However, that candidate withdrew from the search. The decision was made not to offer employment to any of the remaining four finalists. Instead, two additional candidates were brought to campus for interviews. Of these last two finalists, an offer of employment was made to Denise Szecsi, who accepted the offer. Dr. Pulapaka received a Ph.D. from the University of Florida in 1995. His cover letter expressed a strong interest in Stetson, specifically referencing its mathematics department’s emphasis and experience with interdisciplinary curricula, its small classes, and his desire to return to Florida. His application included the required AMS cover sheet, a separate and detailed statement of teaching philosophy as it pertains to a liberal arts curriculum, a separate and detailed statement of mathematical interests, a detailed vitae which included institutions taught and during what time frames, and numerous publications and presentations, including dates of publication. Five confidential and current letters of reference were sent to Stetson on behalf of Dr. Pulapaka. The search committee selected Dr. Pulapaka because of his strong credentials outlined above and found his teaching philosophy and mathematical interests to be in sync with what they were looking for. Additionally, the search committee strongly preferred confidential letters of reference, i.e., letters of reference sent directly to Stetson, because it meant that the applicant had not seen them. Dr. Pulapaka clearly met the qualifications specified for the position. At the time she applied for the advertised faculty position, Denise Szecsei was what is referred to in academic circles as “ABD” which means all but dissertation. In that regard, she had completed all of her coursework to earn her Ph.D. and defended her dissertation shortly after interviewing for the position. During the interview process, the committee contacted Dr. Szecsei’s advisor to ensure that she was close to completion of her Ph.D. Dr. Szecsei had her Ph.D. in hand when she started employment at Stetson. Dr. Szecsei’s application packet included the required AMS cover letter, a separate statement of teaching philosophy, a separate statement of her research interests in mathematics, and a detailed vitae which included references to strong academic honors (i.e., she is a member of Phi Beta Kappa and graduated magna cum laude when she received her bachelor’s degree). Moreover, Dr. Szecsei’s cover letter noted that she had teaching experience in a variety of academic environments including the military, community college and university. It referenced her interest in living in Central Florida and her knowledge of Stetson. Four confidential and current letters of reference were sent to Stetson on behalf of Dr. Szecsei. The committee found Dr. Szecsei’s teaching philosophy and research interests to be impressive. It was clear to the committee that teaching was Dr. Szecsei’s main focus. Her letters of reference were confidential and current. In a memorandum recommending her to Dean Ballenger, a member of the search committee commented on Dr. Szecsei’s extra academic credentials, i.e., in addition to her Ph.D. in mathematics, she was close to having a master’s degree in chemistry, she had much more teaching experience than the typical new Ph.D., and she gave the best classroom performance of any candidate he had observed since he had been at Stetson. Petitioner argues that Dr. Szecsei was not qualified for the position because she did not have her Ph.D. in hand at the time of the application. That argument is rejected. Stetson made certain that she was to receive her Ph.D. before her employment began and, indeed, she had her Ph.D. in hand when she began working there. Dr. Szecsei in that and all other respects was a qualified applicant for the advertised position. Petitioner holds a B.A. in physics from the University of California, Berkeley, an M.A. in mathematics from Sacramento State College, and a Ph.D. from the University of California, Riverside. His resume does not indicate in what years he received his degrees. His resume lists numerous publications, participation in many presentations and seminars, but does not mention the dates of any of them. Petitioner’s application packet does not contain the required AMS cover sheet. There is no separate statement of mathematical interests or statement of teaching philosophy, but he referenced his academic interests and areas of mathematical interest in his cover letter. Petitioner's several letters of reference were not confidential, i.e., he included them with his application packet, were not addressed to Stetson, and were not current (the dates of the reference letters ranged from 1986 through 1994). Petitioner’s application does not indicate his age. Petitioner argues that his age can be inferred from references to certain dates in his letters of reference. For example, one letter of reference states that Petitioner received his Ph.D. in 1968. Another letter of reference mentions that Petitioner taught at a particular university from 1971 to 1981. In any event, Petitioner now informs that he was born in 1936. The search committee noted that Petitioner did not submit an AMS cover sheet as required. Despite this omission, the search committee reviewed Petitioner’s application packet and made several observations. Drs. Hale and Friedman noted that Petitioner’s cover letter appeared to be generic in nature with no specific reference to Stetson. Dr. Friedman noted that Petitioner addressed research before teaching indicating to him that Petitioner may have a stronger interest in research than teaching. Moreover, Dr. Friedman described Petitioner’s cover letter as "not polished." The fact that Petitioner’s reference letters were not confidential in nature was a negative factor. The lack of specific reference to teaching positions was a significant negative factor in the eyes of the committee. Petitioner’s expectation that a search committee which received approximately 220 application packets would search through letters of reference to piece together employment and teaching history is unrealistic and unreasonable. The search committee’s failure to do so does not indicate in any way that they engaged in any type of discrimination. Further, the lack of dates regarding years of teaching, publications, and participation in presentations, etc., made it impossible for the search committee to know how recent his teaching experience was. The undersigned is persuaded that the search committee did not wade through the letters of recommendation to calculate his approximate age. Other than Petitioner’s omission of the AMS cover letter, Petitioner was qualified for the job in question. However, there were many applicants and many qualified people who were not granted an interview. There is no competent evidence that Stetson used age as a criterion in its determination of who would and who would not be hired for the mathematics position. On the contrary, the preponderance of the evidence demonstrates that age was not a factor in the selection process.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 4th day of March, 2004, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS 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 4th day of March, 2004.
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.
