Recommendation Based upon the findings of fact and conclusions of law recited above, it is recommended that Petitioner be promoted to the rank of associate professor, said promotion to be retroactively effective with the beginning of the 1976-77 academic year. Respectfully submitted and entered this 27th day of January, 1977, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of January, 1977. COPIES FURNISHED: Charles N. Millican, President Florida Technological University Box 25000 Orlando, Florida 32816 Edwin C. Shirkey, Ph.D Assistant Professor of Psychology Department of Psychology Box 25000 Orlando, Florida 32816 Dr. Phillip M. Tell Florida Technological University Box 25000 Orlando, Florida 32816 F. Hartselle Baker, Esquire Hillcrest Plaza, Suite 202 1516 East Hillcrest Orlando, Florida 32803
The Issue The issue in this case is whether the University of Florida acted inappropriately in determining that Dr. Nancy Norvell's performance as an Assistant Professor was insufficient to meet the criteria for tenure and promotion.
Findings Of Fact The College of Health Related Professions of the University of Florida consists of nine departments, including the Department of Clinical and Health Psychology. Dr. Richard R. Gutekunst is dean of the college. Dr. Nathan W. Perry is chairman of the referenced department. Students in the Department of Clinical and Health Psychology are graduate level students pursuing advanced degrees in the study of abnormal behavior. The department operates a clinic which provides counseling services to appropriate individuals and is utilized as an instructional tool. Clinical instructors supervise student clinicians providing treatment to patients. Such students include graduate students from within the department and interns from outside the University. In April, 1984, Dr. Nancy K. Norvell was, by letter from Dr. Perry, offered employment as an Assistant Professor in the Department of Clinical and Health Psychology. Dr. Norvell accepted the offer and was hired, effective July 20, 1984. According to Dr. Perry's letter of April 16, 1984, Dr. Norvell's duties were "clinical teaching, research and assigned clinical responsibilities on the Adult Consult and Liaison Service and in the general Adult Clinic." Dr. Perry also advised that she would teach the Adult Psychopathology course during the Fall `84 semester. The April 16 letter stated that Dr. Norvell would be evaluated at least once annually in terms of performance of assigned duties and responsibilities. The letter advised that such evaluations were considered in recommendation and final decisions on tenure, promotions and salary. The letter stated that "[t]he criteria for promotion or for the granting of tenure shall be relevant to the performance of the work which the faculty member has been employed to do and to his performance of the duties and responsibilities as a member of the University committee." The letter also outlined the criteria relevant to the granting of tenure, identified as "broad categories of academic service" including instruction, research, and service. As identified in the, letter of April 16, "instruction" includes regular classroom teaching, direction of thesis and dissertations, academic advisement, extension activities, and all preparations for this work including continuing education. "Research" includes publications and other "creative" activities. "Service" includes public, professional, and University activities. Each semester, faculty members of the Department of Clinical and Health Psychology are assigned teaching, research, and service duties, expressed as percentages of employment responsibilities. Such assignments are communicated by memo to the individual faculty members. Dr. Norvell was aware of her assigned responsibilities each semester. During the 1984-85 school year, Dr. Norvell's duties were assigned as 62% teaching, 35% research, and 3% service. Typically, faculty members are evaluated by their students towards the end of each term. Such evaluations are performed in accordance with standardized procedures, which the University has adopted by administrative rile. Students assign overall numerical scores from 1 to 5 for the course and for the instructor, with 1 being the tops of the range. Instructors are not present during the evaluation. Results are not provided to the instructors until after course grades are determined. Such procedures provide anonymity to Dr. Norvell's students evaluated her performance in accordance with such procedures. During the Fall 1984 term, Dr. Norvell taught Adult Psychopathology, a required course for all department students. In the confidential evaluation, her students rated the course as 1.11 and her instruction as 1.11 above the respective department mean of 1.71 and 1.49. During the Spring of 1985, Dr. Norvell taught an elective course. An elective course is conceived by the instructor who teaches the course. The students who enroll in elective courses are generally interested in the subject matter. In the confidential evaluation, her students rated the course as 1.25 and her instruction as 1.25, above the respective department mean of 1.71 and 1.56. Students frequently rated elective courses higher than required courses. Dr. Norvell's first year was ,productive, according to Dr. Perry's letter of evaluation, dated June 26, 1985. In his letter, he stated that she "performed well in the range expected for progress towards tenure." The evaluation noted that Dr. Norvell's clinical billings were lower than other faculty members. Clinical billings are a measure of time spent in clinical teaching, but are not reflective of quality. Dr. Norvell's teaching included both clinical and classroom activities. Dr. Perry attributed the low billings to her recent arrival and expressed his anticipation that she would have no difficulty in increasing her billings. During the 1985-86 school year, Dr. Norvell's duties were assigned as 59% teaching, 33% research, and 8% service. In October, 1985, Dr. Perry became aware of conflicts between Dr. Norvell and clerical staff related to preparation and completion of written case reports. Dr. Perry wrote a letter to Dr. Norvell expressing his concern, advising that certain procedures would be instituted, and stating, "[e]ven with their adoption, it will still be necessary to relate to the staff with courtesy and understanding of their total work loads." During the Fall 1985 term, Dr. Norvell again taught Adult Psychopathology. In the confidential evaluations, her students rated the course as 2.44 and her instruction as 2.44, below the respective department mean of 2.37 and 226. By letter of evaluation dated June 25, 1986, Dr. Perry commended Dr. Norvell's research. He further noted her substantially increased clinical billings. However, Dr. Perry stated that her professional judgement was unsatisfactory, and that her negative attitude towards faculty colleagues and staff was "problematic." The evidence shows that from the beginning of her employment with the University until the end of academic year 1985-86, Dr. Norvell was assigned responsibilities as Chief of the Adult Consult Liaison Service. Dr. Perry testified that Dr. Norvell was to be supervised by Dr. Alan Glaros, Director of the Medical Psychology Service and the Pain and Stress Management Clinic. Dr. Glaros and Dr. Norvell recalled their relationship as that of equals. There was friction between Drs. Norvell and Glaros, at least to a degree that Dr. Perry found unacceptable. Following the academic 1985-86 period, Dr. Perry relieved Dr. Norvell of her responsibilities as Chief, in part because Dr. Norvell and Dr. Glaros were unable to work together to Dr. Perry's satisfaction, and because of a departmental reorganization. Dr. Perry subsequently did not assign any service responsibilities as part of Dr. Norvell's employment. During the 1986-87 school year, Dr. Norvell's duties were assigned as 65% teaching, 35% research, and 0% service. During the Fall 1986 term, Dr. Norvell again taught Adult Psychopathology. Her students rated the course as 2.00 and her instruction as 1.70. The respective department mean scores were 1.93 and 1.78. By evaluation letter dated June 3, 1987, Dr. Perry noted that Dr. Norvell's teaching and research continued to be productive. He commended her on receipt of an award for excellence in consulting research. Dr. Perry stated that her participation on a minority recruitment trip represented "outstanding university service." He also noted that her attitude and relationships with colleagues and students was much improved. During the 1987-88 school year, Dr. Norvell's duties were assigned as 53% teaching, 47% research, and 0% service. During the Fall 1987 term, Dr. Norvell again taught Adult Psychopathology. In the confidential evaluations, her students rated the course as 2.82 and her instruction as 2.91, below the respective department mean of 1.87 and 1.75. At hearing, Dr. Norvell asserted that the poor evaluation was caused by the specific class of students enrolled in her course during the Fall `87 term. As support for the assertion, Dr. Norvell provided testimony from another instructor, no longer at the University, who had received poor evaluations from supposedly the same group of students. The evidence does not establish that the poor were due to the specific class of students. On January 11 and 12, 1988, Dr. Perry met with Dr. Norvell to discuss the results of the Fall `87 student evaluation. He expressed concern with her attitude towards students as reflected by the individual student comments in the evaluations. (At that time, the department mean had not been calculated.) Dr. Perry also expressed his opposition to Dr. Norvell's practice, of which Dr. Perry had become aware, of soliciting student evaluations in addition to the department's standardized confidential evaluations. Dr. Perry believed the practice to be inappropriate, and, at hearing, stated that the practice could have resulted in inflation of the scores resulting from the standardized evaluations. While Dr. Norvell's activity may have been inappropriate, the assertion that such could have resulted in inflated student evaluations is unsupported by evidence. During the January 11-12 meetings, Dr. Norvell asked Dr. Perry if he would support her application for tenure. A faculty member at the Assistant Professor level eventually receives tenure or is terminated following the sixth year of employment. Dr. Perry replied that he could not support her application at that time. By letter to Dr. Perry, dated January 13, 1988, Dr. Norvell wrote that a review of the data "suggests that 89% of all students who have taken the adult psychopathology course regard me as adequate or better." Dr. Norvell stated that she appreciated his concern and requested a formal evaluation of her teaching, including clinical practice. By letter to Dr. Perry, dated January 19, 1988, Dr. Norvell expressed surprise at Dr. Perry's January 12 statement of nonsupport for her tenure application. Dr. Norvell stated, "I am eager to address any issues that you feel are of concern and would like any problem areas articulated so that I may work to correct any existing problems." She further requested that he provide "specific guidelines for remedying those particular problems." By letter to Dr. Norvell, dated January 21, 1988, Dr. Perry expressed "some surprise and considerable disappointment" in Norvell's letter of January In the letter, Dr. Perry recalled, at length, the discussions of January 11-12. According to the letter, the discussions included her use of additional, non-confidential, student evaluations, and her attitude towards students. Dr. Perry stated that students had become apprehensive at the fact that she requested evaluations prior to the close of the course, and that she personally collected written comments from students. He enumerated the reasons he recalled Dr. Norvell having given for the poor evaluation. Dr. Perry also discussed her previous course ratings and his disagreement with her interpretation of the evaluation scores. In concluding the letter, Dr. Perry stated that his concern is not her teaching ability, but her performance. He states that her "teaching performance and your combative rather than collaborative attitude regarding the evaluation is of serious question. As I said in our discussion, I do not want to prejudge the broader tenure evaluation, but if I had to vote at this time, I would not be able to support your candidacy." By letter to Dr. Norvell dated February 10, 1988, Dr. Perry noted that the letters appear to have crossed in mailing, and that he had not received her letter of January 19 prior to his writing of the January 21 letter. He noted that the department mean had become available and that Dr. Norvell's evaluation scores were below the mean. He again stated his recollection of the earlier meetings and, in response to her request for examples of her behavior, wrote "in our discussions, I ha[ve] given you numerous examples of your behavior that I considered to reflect your attitude." Subsequently, Dr. Norvell sent a letter to Dr. Perry, dated March 8, 1988, identical to her letter of January 19, in which she requested specific identification of her problems. Dr. Perry had previously responded to her request. Dr. Norvell was either unable or unwilling to accept his comments. By evaluation letter dated June 21, 1988, Dr. Perry stated that Dr. Norvell's research and clinical teaching remained productive. He acknowledged her service on university committees was appreciated. However he started that her course teaching and her judgement were unsatisfactory. He further expressed his displeasure with her response to his concerns, and referred to the previous series of letters exchanged. He stated that, although previously there had been improvement in her relationships with colleagues and students, additional improvement was required. Dr. Perry's June 21 letter advised that his concern was "with the great variability in your performance over time and your difficulty in objectively looking at your own role in this variability. Unless individuals can scrutinize their own behavior, it is difficult for them to make any improvement permanent. The improvement is also destined to be temporary to the extent that it is based upon compliance to administrative authority rather that a genuine acceptance that improvement is needed." Although matters related to tenure are supposedly confidential, knowledge of Dr. Norvell's tenure situation appears to have been widespread among faculty and some students. Dr. Norvell discussed the matter with faculty members. Dr. Perry found it necessary to discuss the situation with non-tenured instructors who were aware of the approaching Norvell tenure deliberations and who were personally concerned about tenure practices. During the Summer 1988 term, Dr. Norvell taught an elective course. Her students rated the course as 1.00 and her instruction as 1.00, above the respective department mean of 1.50 and 1.61 respectively. In the Department of Clinical and Health Psychology, a faculty member in Dr. Norvell's position may submit a tenure application in either the fifth or sixth year of employment. Generally, a candidate for tenure applies once. An assistant professor will usually apply for promotion to associate professor concurrently with the tenure application. Dr. Perry suggested to Dr. Norvell that she delay her application until her sixth year. Such would have permitted Dr. Norvell to teach the Adult Psychopathology course again and would have provided an additional set of student evaluations to be considered. Dr. Perry believed such course of action to be advisable in response to the poor evaluation from the Fall 1987 class. Dr. Norvell chose to submit the application in her fifth year. In October, 1988, Dr. Norvell began to prepare her tenure and promotion application. A candidate for tenure is responsible for preparation of the package of materials which are reviewed by appropriate personnel. Dr. Norvell's package included biographical and professional information, letters of professional recommendation, standardized student evaluation results, and previous employment evaluations. The package was completed by early November, 1988. Dr. Norvell's tenure package also included letters written by students supportive of her application. The inclusion of such letters, while unusual, was not prohibited. Dr. Norvell did not review the letters. There is no evidence that Dr. Norvell personally solicited the letters. While several witnesses testified that they believed the inclusion of the letters to be inappropriate, the evidence does not establish that the inclusion of the student letters materially affected the tenure deliberations. There is disagreement as to the availability of evaluations received from Dr. Norvell's clinical students. At hearing, Dr. Perry testified that such evaluations were received from Dr. Norvell's clinical students during the period of her employment and were available for her review. Dr. Perry testified that Dr. Norvell's clinical evaluations during her first two years were below average, but not to a significant degree. He also testified that, during that period, he did not inform Dr. Norvell that such clinical evaluations were below average. Dr. Norvell was apparently not aware that such evaluations had been performed. There is no evidence that actual clinical evaluations were considered by the tenure committee or that such evaluations materially affected the committee's deliberations. Such evaluations were not included in Dr. Norvell's application. Tenured faculty appropriately based their opinions of Dr. Norvell's clinical instruction on personal knowledge of her performance in the clinical practice. Applications for tenure are reviewed by department faculty at a scheduled meeting. The application is discussed and tenured faculty vote by secret ballot. Eight faculty members were eligible to vote on Dr. Norvell's tenure application. Applications for promotion are considered at the same time. All faculty members holding the rank sought by the applicant or higher are eligible to vote by secret ballot on the promotion issue. Nine faculty members were eligible to vote on Dr. Norvell's promotion application. The faculty meeting and balloting occurred in November 8, 1988. At the faculty meeting, Dr. Perry initially expressed his opposition to Dr. Norvell's candidacy. Dr. Perry conceded that her research was distinguished, but argued that neither her instruction nor service were of like quality. Dr. Perry had previously attended all but one faculty meeting related to a tenure decision, and had previously expressed his opinion at such meetings. He had not previously opposed a tenure application. Dr. Norvell asserts that Dr. Perry acted inappropriately in speaking against her application at the faculty meeting during which the Norvell application was considered. The evidence does not establish that Dr. Perry's opposition to Dr. Norvell's application was based on factors other than his personal opinion as to whether she had attained a level of distinction in two of the three criteria for tenure and promotion. There is no evidence that Dr. Perry's opinion affected the deliberations any more than the opinion of any other faculty member. The evidence does not suggest that the outcome of the secret ballot would have been otherwise had Dr. Perry not expressed his opinion. Given the faculty's apparent knowledge of the situation prior to the meeting, it is doubtful that any faculty member entered the meeting unaware of Dr. Perry's opposition to the application. Some of the tenured faculty who participated in the meeting testified at hearing. Of those testifying, one admitted to having felt pressured by Dr. Perry's actions at the meeting, but nonetheless voted in favor of Dr. Norvell's tenure application. One faculty apparently considered his antagonistic personal relationship with Dr. Norvell in reaching a decision and abstained from voting on the tenure issue. Had he voted in favor of her tenure application, as he admitted was probable up until shortly before the faculty meeting, it would have been entitled to additional review. In fact, as discussed below, the application was forwarded for additional review. The abstention by the referenced faculty member was irrelevant. The remainder of the faculty members testifying generally found either her teaching, her service, or both, to be unsatisfactory. The vote on Dr. Norvell's tenure application was three for, three against, and two abstentions. The vote on Dr. Norvell's promotion application was six for, two against, and one abstention. Promotion is rarely granted in cases where a tenure recommendation is negative. Although Dr. Norvell asserted that the results indicate that Dr. Perry pressured faculty to vote against her tenure application, and that the faculty voted otherwise on the promotion application, the evidence does not support the assertion. It is more likely, as witnesses testified, that the favorable vote on promotion was with due regard to her distinction in research. Subsequent to consideration and voting by department faculty, applications for tenure and promotion may be forwarded to the college level for further consideration if either the department faculty or the department chairman recommend an award of tenure. If the application receives a negative recommendation from both the faculty and department chairman, the application is not forwarded. However, given the circumstances of this situation, the Norvell application was forwarded for college level review even though neither the tenured faculty nor department chairman Perry recommended the granting of tenure. Applications for tenure and promotion within the College of Health Related Professions are reviewed by the college dean and the advisory Tenure and Promotion Committee. The committee members represent the several departments in the college. Six tenured faculty members, two of whom had participated in the previous tenure meeting, were members of the committee which considered Dr. Norvell's application. Dr. Perry was one of the persons on the committee. Due to the circumstances of the case, Dr. Perry was instructed, either by the college dean, the committee, or both, that he was not to participate in the college level deliberations. Generally, the appropriate department chairman forwards the application package with a transmittal letter and fully participates in the process. Dr. Perry initially decided not to provide such a transmittal letter. Upon learning that Dr. Perry would not be writing a letter, Dr. Norvell wrote and mailed a letter of her own to the college dean and committee members. Dr. Norvell's letter, dated November 23, 1988, expressed her opinion towards Dr. Perry. Dr. Norvell's letter charged that Dr. Perry's opposition to her application was of a personal nature, and stated "[i]f the tenure committee and Dean of the College of Health Related Professions is willing to objectively review my credentials I know I will receive tenure and promotion." After learning that Dr. Norvell had delivered her letter, Dr. Perry wrote a transmittal letter, dated November 14, 1988, in which he addressed Dr. Norvell's application for tenure and explained the rationale for his opposition to her application. Dr. Perry attended the committee meeting and read the letter to the members. He thereafter excused himself and did not participate in the deliberations or the vote. The committee reviewed the tenure package prepared by Dr. Norvell. Following the discussion, the committee voted by secret ballot. The result of the vote on the tenure application was five against and one absent. The result of the vote on the promotion application was five abstentions and one absent. One member of the committee testified that he abstained on the issue of promotion because promotion was rarely awarded without tenure, and saw no reason to do otherwise. Dr. Norvell asserts that Dr. Perry acted inappropriately in speaking against her application at the College meeting during which the Norvell application received further consideration. Dr. Perry was prepared to submit the application to the committee without further comment. He subsequently chose to do write the letter in response to Dr. Norvell's letter accusing Dr. Perry of personal bias. The evidence does not establish that under the circumstances, Dr. Perry's letter was inappropriate. Following the committee vote, the Norvell application was submitted to the Dean of the College of Health Related Professions, Dr. Richard Gutekunst, for review. Dr. Gutekunst reviewed the committee's recommendation and the application package. He determined that, although Dr. Norvell's research was acceptable, her teaching was inconsistent and unsatisfactory. He also determined her service to be undistinguished. He denied the application for tenure and promotion. The University of Florida has adopted rules which identify the requirements for tenure. Rule 6C1-7.019(3), Florida Administrative Code, provides that the criteria for the granting of tenure shall be relevant to the performance of the work which the faculty member has been employed to do and to the faculty member's duties and responsibilities as a member of the University community. The criteria recognize three "broad categories of academic service" including instruction, research, and service. To attain tenure, a faculty member must achieve "distinction" in at least two of the three "broad" categories. "Distinction" is defined as "appreciably better than the usual college faculty member of the candidate's present rank and field". During Dr. Norvell's employment with the University of Florida, her primary responsibilities were teaching and research. Beyond the service expected of all faculty members, such as participation on departmental committees and attendance at meetings, Dr. Norvell had minimal service responsibilities. Though minimal or no service duties were assigned to Dr. Norvell during her employment at the University, she performed minor service activities and was commended on her service in the annual evaluations. Dr. Norvell asserts that such service should be considered as part of the tenure evaluation. The administrative rules state that tenure criteria is applied in relation to the duties for which the candidate was employed. Accordingly, Dr. Norvell's service is minimally relevant to the tenure decision. Even if it the evidence does not establish that such service was appreciably better than the usual college faculty member of the candidate's present rank and field. The University concedes that Dr. Norvell's research was distinguished. Accordingly, to receive tenure, Dr. Norvell must also achieve distinction in instruction. The evidence does not establish that Dr. Norvell's instruction was of distinguished quality. As judged by the student evaluations obtained confidentially from students in her classes, and from faculty familiar with Dr. Norvell's clinical practice, Dr. Norvell's teaching was inconsistent. The evidence fails to establish that Dr. Norvell's instruction was appreciably better than the usual college faculty member of the candidate's present rank and field. In claiming that Dr. Perry acted in opposition to her application for personal reasons unrelated to her qualifications for tenure and promotion, Dr. Norvell related anecdotal information which she asserted demonstrated his personal bias. The evidence does not support her claim that Dr. Perry acted for personal reasons.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the University of Florida enter a Final Order dismissing the Petitioner's petition for tenure and promotion. DONE and RECOMMENDED this 9th day of March, 1990, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of March, 1990. APPENDIX CASE NO. 89-0144 The Petitioner filed proposed findings of fact which included, identified as "notes", comments as to the reliability of testimony and evidence. Such "notes" are regarded as argument and are rejected as subordinate. The following constitute rulings on proposed findings of facts submitted by the parties. Petitioner The Petitioner's proposed findings of fact are accepted as modified in the Recommended Order except as follows: 12. Rejected, not supported by the cited testimony. Dr. Perry did not evaluate her service as outstanding in her first year. He did commend her in her third year on her outstanding service related to the minority recruitment trip, a year in which she had no assigned service responsibilities. 13-14. Accepted as to the statements excerpted from the letters of evaluation, however, it is noted that additional information was included in the evaluations which was less favorable. Rejected, not supported by greater weight of evidence. Rejected, contrary to the evidence and to the Petitioner's assertion that Dr. Glaros was not Dr. Norvell's supervisor. Rejected, not supported by the greater weight of evidence. Rejected, immaterial. Issue is whether Petitioner met the criteria for award of tenure. The reference to clinical evaluations is rejected, irrelevant. Reference to Dr. Perry's discussions with "junior" faculty is rejected, contrary to the greater weight of evidence. 28. Rejected, Dr. Bauer's favorable vote would have permitted further review of application, which occurred despite his abstention, immaterial. 29-30. Rejected, contrary to the greater weight of evidence. 31. Although the Findings of Fact note the Petitioner's election as Teacher of the Year, such is found to be less persuasive or reliable that standardized student evaluations. 34. Rejected. The greater weight of evidence establishes that Dr. Perry was instructed not to participate and did not participate in the college level deliberations. The evidence does not establish that he was instructed not to attend. 35-36. Rejected, unnecessary. The fact that committee members would consider the department chairman's opinion to be persuasive does not establish that Dr. Perry acted, inappropriately in expressing his opinion of Dr. Norvell's qualifications. Dr. Perry's letter was written in response to Dr. Norvell's allegations of personal bias. 37. Rejected. Not supported by greater weight of evidence. 39-41. Rejected. Not supported by greater weight of evidence. Respondent The Respondent's proposed findings of fact are accepted as modified in the Recommended Order except as follows: The reference to clinical evaluations is rejected, irrelevant Rejected, unnecessary. 19. The reference to clinical evaluations is rejected, irrelevant. 27. The reference to clinical evaluations is rejected, irrelevant. Last sentence rejected, unnecessary. 34. Rejected, irrelevant. 35-36. Rejected, unnecessary. 42-43. Rejected, irrelevant. The referenced vote had no effect. 44-46. Rejected, cumulative. 56. Rejected as to the mariner in which Dr. Perry received notification that he was not to participate in the committee deliberations, immaterial. 58. Rejected, unnecessary. COPIES FURNISHED: John Lombardi, President Office of the President University of Florida Tigert Hall Gainesville, Florida 32611 Rodney W. Smith, Esq. Law Offices of Rodney W. Smith, P.A. Post Office Box 628 Alachua, Florida 32615 Barbara C. Wingo, Esq. Office of the General Counsel University of Florida 207 Tigert Hall Gainesville, Florida 32611
The Issue The issue is whether Respondent properly considered prior teaching experience when calculating an appropriate salary for Petitioners.
Findings Of Fact All Petitioners were employed by the Board as full-time Florida certified public school teachers under a series of successive annual contracts. The Board operates under a Collective Bargaining Agreement known as the "Master Contract." The Master Contract includes, among other things, a salary schedule that is the result of negotiations with the Escambia Educational Association (EEA), the collective bargaining agent that represents teachers. A negotiated salary schedule is then recommended by the superintendent of Escambia County Schools pursuant to Subsection 1012.27(2), Florida Statutes (2007), to the Board for approval and adoption. The salary schedule adopted by the Board governs the compensation payable to instructional personnel. The salary schedule includes "steps" with corresponding "salary." Placement on the salary schedule step depends, in part, upon prior teaching experience. Generally, more prior teaching experience credited for placement on the schedule results in a higher level of compensation. All Petitioners received an annual instructional contract under the authority of Subsection 231.36(3), Florida Statutes, or later, Subsection 1012.33(3), Florida Statutes. Petitioners' annual instructional contracts set forth the contract salary on an annual basis payable through 12 monthly installments. The contracts specify the number of days to be worked and the daily rate of compensation. The Board's standard form contract provides that "[t]his annual contract shall be deemed amended to comply with all laws, all lawful rules of the State Board of Education, all lawful rules and actions of the School Board and all terms of an applicable ratified collective-bargaining agreement." All Petitioners performed the agreed-upon instructional services and, individually, were paid the agreed-upon contractual amount, as provided in the "Master Contract 1999-2002" or "Master Contract 2004-2007," as appropriate. This included the amount paid for years of service or "steps" as provided in the Master Contracts. Petitioners Davis, Elleard, Lanier, Malone, Outzen, and Taylor, however, protested the steps they were assigned. As shall be addressed below, the Master Contract allowance for steps was less than that required by Florida law subsequent to July 1, 2001. Petitioners' annual instructional contracts specify the salary paid through 12 monthly installments with a daily rate of compensation identified. The amount of compensation can be further broken down into an hourly rate based upon 7.5 hours per day, and provides for annual leave and sick leave. As is customary, if the employee takes leave and has no accrued leave balance, her pay will be reduced to compensate for the hours of leave without pay taken. The Board maintains ledgers with all the compensation information for its employees, including Petitioners. Petitioner Margaret Benson has been employed by the Board as a full-time public school teacher since August of 2002. Prior to her employment with the Board, Ms. Benson was a full-time public school teacher in New Jersey and Tennessee for 17 years. For each of those 17 years, Ms. Benson received satisfactory performance evaluations. Upon being hired by the Board, Ms. Benson was given credit for 15 of the 17 years of her prior teaching experience. Ms. Benson has requested that the Board recognize each of her 17 years of teaching service. In March or April 2007, the Board recognized one additional year of Ms. Benson's experience effective June 1, 2006. The Board has denied the request for the period of August 2002 through May 31, 2006. There is no evidence in the record as to whether Ms. Benson requested recognition of her entire teaching service, prior to the filing of this lawsuit. Petitioner Reba Davis was employed by the Board as a full-time public school teacher for the 2003-2004 and 2004-2005 school years. Prior to her employment with the Board, Ms. Davis was a full-time public school teacher in Florida, Oklahoma, Alabama, and Kentucky for 25 years. For each of those 25 years as a full-time public school teacher, Ms. Davis received satisfactory performance evaluations. Upon being hired by the Board, Ms. Davis was given credit for all but five years of her prior teaching experience. Ms. Davis has requested that the Board recognize each of her 25 years of teaching service. The Board has denied the request for the period of 2003-2005 school years. Ms. Davis retired from teaching in 2005, but is not using the five years of teaching credit toward her retirement benefit, which was earned outside the State of Florida. At the time she began her service with the Board Ms. Davis made inquiry with Mary Helen Fryman of the Board's Human Resources Office as to why she was not given credit for all of her prior experience. She was informed by Ms. Fryman that the matter was, "Still under negotiation and that she knew I would be given . . . my experience for my years in Florida." She made additional inquiries of the teachers union and the Board and was told that, "They were still in the bargaining stages and they were still not clear." Petitioner Deborah Elleard has been employed by the Board as a full-time public school teacher since August 2003. Prior to her employment with the Board, Ms. Elleard was a full-time public school teacher in Alabama for 29 years. For each of those 29 years as a full-time public school teacher, Ms. Elleard received satisfactory performance evaluations. Ms. Elleard retired from the State of Alabama and when hired by the Board, Ms. Elleard was not given credit for her 29 years of prior teaching experience. Ms. Elleard has requested that the Board recognize each of her 29 years of teaching service. In March or April 2007, the Board recognized her 29 years of experience effective June 1, 2006. The Board has denied the request for the period of August 2003 through May 31, 2006. When Ms. Elleard was hired she made inquiry as to why she was not receiving credit for her 29 years of teaching service. She was informed then and several times thereafter that the Board was working on the matter and that it would be resolved. Petitioner Deborah Gregory was employed by the Board as a full-time public school teacher beginning August 2002 until her resignation following the conclusion of the 2005-2006 school year. Prior to her employment with the Board during the relevant time, Ms. Gregory was a full-time public school teacher in Alabama, Escambia County, and Orange County for 16 years. For each of those 16 years as a full-time public school teacher, Ms. Gregory received satisfactory performance evaluations. Upon being hired by the Board in 2002, Ms. Gregory was given credit for 15 of her 16 years of prior teaching experience. Ms. Gregory has requested that the Board recognize each of her 16 years of teaching service. The Board has denied the request for the period of August 2002 through May 31, 2006. There is no evidence in the record as to when or if Ms. Gregory requested recognition of her entire teaching service. Petitioner Ida Lanier has been employed by the Board as a full-time public school teacher since August 2001. Prior to her employment with the Board, Ms. Lanier was a full-time public school teacher in Alabama for 25 years. For each of those 25 years as a full-time public school teacher, Ms. Lanier received satisfactory performance evaluations. Ms. Lanier retired from the State of Alabama, and upon being hired by the Board, Ms. Lanier was denied credit for her 25 years of prior teaching experience. Ms. Lanier has requested that the Board recognize each of her 25 years of teaching service. In March or April 2007, the Board recognized Ms. Lanier's 25 years of experience effective June 1, 2006. The Board has denied the request for the period of August 2002 through May 31, 2006. When she was hired, Ms. Lanier inquired as to why she did not get credit for prior service and she was told it was because she was retired from another state. She was informed that the collective bargaining agreement prevented the credit but that the situation might change. She continued over time to make inquiry to both her union and the Board. Petitioner Phyllis Malone has been employed by the Board as a full-time public school teacher since August 2003. Prior to her employment with the Board, Ms. Malone was a full-time public school teacher in Alabama for 25 years. For each of those 25 years, Ms. Malone received satisfactory performance evaluations. Ms. Malone retired from the State of Alabama and upon being hired by the Board, Ms. Malone was given credit for 15 of her 25 years of prior teaching experience. Ms. Malone requested that the Board recognize each of her 25 years of teaching service. In August 2006, the Board recognized each of her 25 years of experience effective June 1, 2006. The Board has denied the request for the period of August 2002 through May 31, 2006. Ms. Malone had conversations with the Board's Human Resources Office and wrote a letter to Dr. Scott of the Board and talked to Judy Fung of the Board, inquiring as to why she was not receiving credit for past experience. During the time she taught, she continued to make inquiries. Petitioner Vicki Outzen has been employed by the Board as a full-time public school teacher since August 2002. Prior to her employment with the Board, Ms. Outzen was a full-time public school teacher in Alabama for 25 years. For each of those 25 years, Ms. Outzen received satisfactory performance evaluations. Ms. Outzen retired from the State of Alabama and upon being hired by the Board, Ms. Outzen was not given credit for her 25 years of prior teaching experience. Ms. Outzen has requested that the Board recognize each of her 25 years of teaching service. In March or April 2007, the Board recognized Ms. Outzen's 25 years of experience effective June 1, 2006. The Board has denied the request for the period of August 2002 through May 31, 2006. Ms. Outzen made inquiries of the Board at the time she was hired and continuously during her employment with regard to the Board's refusal to give her the requested credit. She was informed that negotiations with the union were in progress and that she should continue to "check back" with the Board. She continually checked back with Ms. Fryman, Director of Human Resources at the Board, and was told in a letter that because she was retired from another state she must start teaching at step zero. Petitioner Janet Taylor has been employed by the Board as a full-time public school teacher since September 11, 2002. Prior to her employment with the Board, Ms. Taylor was a full-time public school teacher in Alabama for 30 years. For each of those 30 years, Ms. Taylor received satisfactory performance evaluations. Ms. Taylor retired from the State of Alabama and upon being hired by the Board, Ms. Taylor was not given credit for her 30 years of prior teaching experience. Ms. Taylor has requested that the Board recognize each of her 30 years of teaching service. Respondent has failed to recognize any of Ms. Taylor's prior years of teaching experience. The Board led Ms. Taylor to believe that she would be notified by the Board when she would be eligible to receive credit for prior teaching experience. For the years Petitioners are seeking credit, those years were not earned under the Florida Retirement System (FRS) as codified in Chapter 121, Florida Statutes (2007). If the Petitioners had been paid as they assert, the Board would be required to pay Petitioners as follows: Margaret Benson for an additional step for school years 2002-2003, 2003-2004, 2004-2005, and 2005-2006. This amount totals $3,308. Reba Davis for five steps for school years 2003-2004 and 2004-2005. This amount totals $11,423. Deborah Elleard for 29 steps for school years 2003- 2004, 2004-2005, and 2005-2006. This amount totals $52,895. Deborah Gregory for one step for school years 2002- 2003, 2003-2004, 2004-2005, and 2005-2006. This amount totals $3,308. Ida Lanier for 25 steps for school years 2001-2002, 2002-2003, 2003-2004, 2004-2005, and 2005-2006. This amount totals $83,561. Phyllis Malone for 10 steps for school years 2003- 2004, 2004-2005, and 2005-2006. This amount totals $28,692. Vicki Outzen for 26 steps for school years 2002-2003, 2003-2004, 2004-2005, and 2005-2006. This amount totals $66,338. Janet Taylor for 30 steps for school years 2002-2003, 2003-2004, 2004-2005, 2005-2006, 2006-2007, and 2007-2008. This amount totals $101,427.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Escambia County School Board recalculate Petitioners' salary as of April 2, 2005, so that their salaries reflect the amount each should have earned if Petitioners had been given credit for each year of full-time public school teaching service earned in the State of Florida or outside the state, and pay them that amount. It is further recommended that Petitioners receive pay at all future times as provided by Subsection 1012.33(3)(g), Florida Statutes (2007), and this Recommended Order. It is further recommended that the Escambia County School Board remit to Petitioners a reasonable attorney's fee. DONE AND ENTERED this 21st day of August, 2008, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER 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 21st day of August, 2008. COPIES FURNISHED: Joseph L. Hammons, Esquire Hammons, Longoria & Whittaker, P.A. 17 West Cervantes Street Pensacola, Florida 32501-3125 H. B. Stivers, Esquire Levine & Stivers 245 East Virginia Street Tallahassee, Florida 32301 Dr. Eric J. Smith Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Deborah K. Kearney, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Jim Paul, Superintendent Escambia County School Board 215 West Garden Street Pensacola, Florida 32502-5782
Findings Of Fact The petitioners herein are all professors employed by the respondent Florida State University (FSU) as faculty members in the School of Music. Pursuant to a "petition for an administrative determination" filed with the Division of Administrative Hearings, petitioners seek a declaration that the written documents appended to the petition are rules within the meaning of the Administrative Procedure Act (APA) and, because they were not promulgated in accordance with the APA, they constitute an invalid exercise of delegated legislative authority. The respondent contends that the petitioners herein are not substantially affected persons within the meaning of F.S.120.56(I) and thus they lack standing to challenge said documents. By a motion to dismiss, respondent further contends that the instant proceeding constitutes a collateral attack upon final agency action and therefore the Division of Administrative Hearings lacks jurisdiction to entertain a rule challenge petition. Finally, respondent urges that the documents in question do not fall within the definition of a rule and are, in fact, specifically exempted from said definition. It is claimed that said documents constitute either internal management memoranda or the preparation or modification of either agency budgets or contractual provisions reached as a result of collective bargaining. The five documents attached to the petition will be described in more detail below. Briefly, these documents are as follows: The "Florida State University procedures" for the award of merit salary and other increases; A portion of the School of Music bylaws; A faculty roster form listing each faculty member of the School of Music with a space provided for an evaluation; A form entitled faculty evaluation summary; and The student instructional rating system (SIRS) interpretation manual. Each of these documents (Exhibits 1 through 5) were utilized by the respondent to determine merit pay increases for each of the petitioners for the 1978-79 school year. Unless amended prior to the evaluation process for the 1979-80 school year, each document will be utilized again in determining merit increases for faculty members of the School of Music. Having been evaluated for merit salary increases under these documents in the past, with a more than reasonable likelihood of future use of the documents for future evaluations, petitioners have adequately demonstrated that they are substantially affected persons within the meaning of F.S.120.56. Not only has their present remuneration for their services been determined pursuant to these documents, their future annual salaries will be affected by the determination reached as a result of the original use of these documents. Unlike the case of Fla. Dept. of Offender Rehabilitation v. Jerry, 353 So.2d 1230 (Fla. App. 1st, 1978), petitioners have illustrated that the impact of the challenged documents are continual, having both present and prospective impact. Faculty members of a university have a substantial interest in the emoluments of their employment. Written documents which substantially affect that interest, if otherwise falling within the APA's definition of rule, can be challenged if a proper petition is filed pursuant to Section 120.56. The respondent contends that the case of HRS v. Barr, 359 So.2d 503 (Fla. App. 1st 1978) bars the instant proceeding. That case held that Hearing Officers had no collateral review power over final agency action taken after regular proceedings under other provisions of the APA. The undersigned finds, and so concludes, that the Barr case, which dealt with a declaratory statement, has no applicability to the facts of the present case. The present petition is not a collateral attack upon an adjudication of petitioners' rights by the agency. The documents in question do not constitute final agency action and the petitioners herein are not challenging the actual determinations of their merit pay. The petition challenges the documents which govern the procedure by which the merit pay increases are made, and the Hearing Officer limited all testimony to that issue. Testimony regarding the results of the evaluation process which occurred in May of 1978 and the manner in which that particular evaluation was conducted was not permitted. The petition alleged that the documents in question constituted rules within the meaning and intent of the APA and that they were substantially affected by said rules. Thus, the petition properly alleged a cause of action under Section 120.56. Having found that the petitioners are substantially affected by the documents utilized by FSU to determine merit increases for faculty members, it now must be determined whether said documents constitute rules within the meaning and intent of the APA. The controlling statutory provision is F.S. 120.52(14), which reads in relevant part as follows: 'Rule' means each agency statement of general applicability that implements, interprets, or prescribes law or policy or describes the organization, procedure, or practice requirements of an agency and includes any form which imposes any requirement or solicits any information not specifically required by statute or by an existing rule. The term also includes the amendment or repeal of a rule. The term does not include: (a) internal management memoranda which do not affect either the private interest of a person or any plan or procedure important to the public and which have no application outside the agency issuing the memorandum; (c) the preparation or modification of: agency budgets. contractual provisions reached as a result of collective bargaining. The first document challenged herein is entitled "Florida State University Procedures" and it contains procedures and guidelines for merit increases, equity increases, and other increases. It divides merit increases into two levels, defines the levels and prescribes, in general form, the procedures to be utilized in evaluating all members of the faculty for merit raises. A "Note" at the end of this document describes the document as FSU "internal procedures for implementing the Statement Concerning Merit and Other Salary Increases." This "Statement" is contained in the collective bargaining agreement between the Florida Board of Regents, State University System of Florida and the United Faculty of Florida. The document in question was created by a committee appointed by President Sliger of FSU. The task of the committee was to devise procedures for the distribution of discretionary funds. The procedures apply generally and equally to each segment of the University and to each faculty member. Other than the "Statement" referred to above, which simply sets forth the criteria by which to evaluate faculty members for merit salary increases, the only other reference in the collective bargaining agreement to salaries is contained in Article 23. Section 23.1(b)(2) simply refers to "discretionary increases in recognition of merit." The document entitled "FSU Procedures" is an agency statement of general applicability that implements, interprets and prescribes law or policy. It sets forth the procedure to be utilized in the discretionary award of merit pay increases. Contrary to the assertions of respondent, this document does not fall within any of the relevant exceptions to the term "rule." Although the procedure is for use internally within the University, it affects the private interest of each faculty member in the compensation he or she receives for services performed for the University. Thus, it is not an "internal management memoranda" exception. While the Procedures do provide the method by which allocated and budgeted funds will be distributed, the document itself does not "budget" any of the funds. The testimony at the hearing was to the effect that these Procedures were created and posted prior to the University's budget submissions and that the budget division of FSU had no role in the creation of the document. Thus, this document cannot be considered as preparation or modification of an agency budget. Finally, the "FSU Procedures" do not fall within the exception for the preparation or modification of "contractual provisions reached as a result of collective bargaining." The document is not a "contractual provision." Although its contents refer to the collective bargaining agreement, the agreement itself only provides that the award of merit salary increases are to be discretionary with the University. Indeed, the testimony and documentary evidence adduced at the hearing illustrates that the Procedures were created and put into operation prior to the time that the collective bargaining agreement became effective. In and of itself, this agency statement purports to create certain rights and adversely affect other rights with regard to funds available for merit increases. See State Dept. of Administration v. Stevens, 344 So.2d 290 (Fla. App. 1st, 1977). This agency statement having general applicability that implements, prescribes and interprets the University's policy regarding award of discretionary merit increases is a rule within the meaning of the APA. The University having failed to properly promulgate said rule in accordance with F.S. 120.54, the document entitled "Florida State University Procedures" constitutes an invalid exercise of delegated legislative authority. The next document for consideration is a portion of the bylaws of the School of Music at FSU. This consists of a set of directives which define the organization of a peer evaluation committee and prescribe the criteria and procedures under which that committee will evaluate faculty members of the School of Music and make recommendations to the Dean regarding merit raises. The criteria to be considered are identical to the criteria already contained in either existing rules of the Board of Regents and FSU (F.A.C. Ch. 6C-5.05 and 6C2-4.33) or in the "statement" contained in the collective bargaining agreement. Thus, the criteria in the bylaws simply constitute a restatement of either existing rules or the contractual provisions of the collective bargaining agreement. The only relevant remaining portion of the bylaws is that portion which directs that the School of Music faculty advisory committee shall also sit as the peer evaluation committee for merit salary increases. This does not constitute an "agency statement of general applicability" within the definition of a rule. It is simply the statement of the School of Music, which is not an agency within the meaning of the APA. The FSU School of Music bylaws do not fall within the APA's definition of a rule. The third document is a form or a worksheet consisting of a School of Music faculty roster with five spaces provided for the peer evaluation committee to rank each faculty member. Each committee member is directed to review the personnel file for each faculty member and, consistent with the established procedures and criteria, complete the worksheet which is then tabulated with the results being communicated to the Dean in the form of a recommendation. A form may fall within the definition of a rule if it otherwise fits the definition and if it "imposes any requirement or solicits any information not specifically required by statute or by an existing rule." F.S. 120.52(14). This form is not an agency statement of general applicability and it does not impose requirements or solicit information not already required by existing rule or statute. It is simply a data collection device utilized by the School of Music to arrive at an evaluation of its faculty members' effectiveness in the traditional areas of professional activity as required by existing rules and the "Statement" contained in the collective bargaining agreement. It is not an "agency statement" within the definition of a rule. The same rationale applies to the fourth and fifth documents under review herein. Both of these documents -- the "faculty evaluation summary" and the "SIRS interpretation manual" -- have been utilized by FSU for over five years to evaluate the overall performance and the teaching effectiveness of its faculty. They are not agency statements and the forms do not impose requirements or solicit information not already required by existing rule or statute. The areas of performance to be evaluated in the "faculty evaluation summary" are described in detail in existing Rules 6C-5.05(2) and 6C2-4.33, as well as in the collective bargaining agreement. The SIRS evaluation is specifically referred to in FSU Rule 6C2-4.33(1)(d) and is simply another tool to be utilized in the total evaluation process. These forms are not "rules" within the meaning and intent of the APA. The undersigned Hearing Officer has carefully considered the legal arguments raised by the parties, both at the hearing and in written memoranda submitted subsequent to the hearing. To the extent that the legal arguments of the parties were deemed meritorious, they have been addressed herein. One final matter deserves treatment. At the close of the hearing, petitioners sought to publish and introduce into evidence certain answers to interrogatories, and the University sought to publish others completed by Dean Wiley Housewright. Dean Housewright was present throughout the hearing and was twice called as a witness. His testimony included a discussion concerning the subject of each interrogatory sought to be published. The proper time to delineate inconsistencies between his testimony and the answers to interrogatories, if any, was during the examination of this witness. Therefore, the requests of both parties to publish these responses to interrogatories are denied.
The Issue The issues presented for determination in this matter are as follows: Can the status of tenure be denied, as opposed to being granted or postponed, during the fifth year of employment? Was the tenure decision in this case based upon constitutionally impermissible reasons or a result of noncompliance with written standards, criteria or procedures prescribed by the Board of Regents or university regulations? Did respondent wrongfully determine that petitioner's employment contract would not be renewed beyond June of 1975? Was petitioner wrongfully terminated before he received a due process hearing?
Findings Of Fact Based upon the admissible oral and documentary evidence adduced in this cause, the following pertinent facts are found: Prior to coming to the University of South Florida in 1969, petitioner's educational and employment background was as follows. In 1951, petitioner received his high school diploma from a night school in Cincinnati, Ohio. After he was discharged from the United States Air Force in 1957, he worked as a commercial pilot, a Kentucky State Trooper, a sales executive, independent consultant and instructor for several private industries, and was active in the Civil Air Patrol. Petitioner completed his Bachelor of Science degree in Commerce in 1966 and his Master of Arts degree in Economics in 1967 at the University of Kentucky. During his masters program, he was awarded a nonteaching graduate fellowship and was admitted to Omicron Delta Epsilon, an economics honorary fraternity. In 1967, petitioner entered the Ph.D. program in marketing, minoring in finance, at the University of Iowa in the College of Business Administration. While attending school between 1967 and 1969, petitioner had an academic fellowship and taught an introductory course in marketing at the University of Iowa. He was enrolled in this program when he applied for a teaching position in marketing with respondent in March of 1969. In response to his application for a teaching position at the University of South Florida, petitioner received a letter from the Chairman of the Marketing Department stating in part, "This assistant professorship opening calls for a person holding the Ph.D. or D.B.A. degree, or expecting completion of the degree in 1969 or early 1970." On the Personnel Data Form required to be completed by respondent, petitioner stated that he would be available in September of 1969, preferred a full-time teaching and research position as assistant professor of marketing and expected to receive his Ph.D. from the University of Iowa in February or June of 1970. Petitioner's appointment as Assistant Professor of Marketing in the College of Business Administration was confirmed by President John S. Allen in April of 1969, and he continued in that position until June of 1975 under six annual contracts. At the time of his appointment to USF in 1969, petitioner had completed the course work for his Ph.D. in the College of Business Administration at the University of Iowa, but had not yet completed all, of his comprehensive examinations. In 1970, petitioner was unsuccessful in two attempts to pass the economic theory comprehensive written examination. Because of this and his low grades, he was terminated from the Ph.D. program in the College of Business Administration. In June of 1970, petitioner enrolled in the University of Iowa College of Education doctoral program majoring in business education. He first failed the marketing examination in the College of Education, but later passed it with reservations. Having completed his comprehensive examinations in that program, petitioner returned to USF to teach. The testimony and evidence is conflicting as to whether petitioner's colleagues and department chairman had knowledge that petitioner was no longer pursuing his Ph.D. degree in business administration. Many of petitioner's colleagues testified that they had no such knowledge. While his chairman stated that he knew of petitioner's educational status, he advised the USF Vice- President for Academic Affairs in March of 1974 that petitioner was pursuing his degree from the College of Business at the University of Iowa and that he was "not pursuing a degree in Distributive Education as was alleged." Petitioner's progress on his doctoral dissertation is somewhat in dispute. Apparently, in July of 1971, he submitted a research proposal entitled "Sales Training and Placement of the Disadvantaged," and an informal doctoral student seminar was held on July 28, 1971 to critique the proposal. However, in June of 1972, the Chairman of Business Education at the University of Iowa informed petitioner that "the next step in our program will be for you to develop your research proposal for your dissertation and submit it to me." There was no evidence that Petitioner has done any significant work toward the completion of his dissertation since the submission of his proposal in July of 1971, despite a written warning from his department chairman at USF in June of 1973 that "it is essential that you make substantial progress on your doctoral degree," and a memo dated January 17, 1974, from Dr. Kallaus at the University of Iowa Business Education Department stating that "the dissertation just has to have 'top billing' in order for you to complete your program within the time requirements." Apparently, petitioner has until February of 1978 to complete his dissertation for the Ph.D. in the College of Education at the University of Iowa. Petitioner would still like to obtain his Ph.D. degree but does not know when he will do so. He states that he does not place great emphasis on the actual worth of a dissertation and considers it to be just another research project. While one witness testified that writing a dissertation had not helped him much, every other witness who had written a dissertation and attained his Ph.D. felt that the writing of a dissertation was extremely valuable in teaching, in grading papers, in relating to students and in the acquisition of research skills. There was testimony from two of petitioner's colleagues in the Department of Marketing that in the Fall of 1971, petitioner asked them both if they would be willing to write a portion of his dissertation for him. These conversations were never reported to the Chairman, the Dean or any other person, with the possible exception of one other faculty member. Thus, it does not appear that this played any part in the tenure decision under consideration herein. Petitioner denied having ever asked anyone to write his dissertation. While he may have asked for help with the mechanics of using the computers or the refinement of statistics, the research proposal was already completed and thus he needed no further help, according to petitioner. As noted above, petitioner was continuously employed under annual contracts as an assistant professor of marketing, a tenure-earning position, from September of 1969 through June of 1975, and received pay raises each year. During this period of time, annual evaluations for the purpose of pay raises were performed. For the fiscal year 1972/73, petitioner ranked sixth out of eleven in priority for a pay raise. On a five point scale, the department chairman ranked petitioner three on teaching effectiveness, and four on research and creative activity, academic advisement, service and overall quality. For the fiscal year 1973/74, a committee consisting of five faculty members rated petitioner on a three point scale as a two in the areas of teaching effectiveness, research and creative activity, academic advisement, service and overall quality. The committee noted that the rating on teaching effectiveness was a high two, while the research rating was a low two. For the same year, petitioner was rated by his chairman as three in teaching effectiveness and two in the other four areas. Petitioner was again evaluated in July of 1975. The faculty evaluation committee rated him between 2.0 and 2.6 on a three-point scale in all five areas; and the chairman rated him as a one in all categories except service, for which petitioner was rated as a two. At the time petitioner was hired by respondent, the Florida Board of Regents and the respondent defined tenure as that condition attained through highly competent research and teaching, or other scholarly activities, length of service, and contributions to society. The guidelines for tenure from that time to the present include a requirement for a high degree of competency in the areas of teaching, research or other scholarly activities and service. It has also been a guideline that normally the faculty member shall have completed five years of continuous service and shall have attained the terminal degree before being eligible for tenure. In addition to these written criteria and guidelines for tenure promulgated by the Florida Board of Regents and adopted by respondent, tenure was discussed by various witnesses. It was opined that in order to receive tenure, a faculty member should be of above average competency in at least two of the three areas of teaching, research and service. Others stated that a faculty member should be above average in all three areas, unless he clearly excelled in one area. Still another felt that the faculty member should excel in all three areas before being granted tenure. Average was defined in terms of everyone in the profession, not merely those in one's particular department or college. It was explained that the importance of having a terminal degree is that such a degree implies that certain standards of competence have been met. The status of tenure is important in that it guarantees the faculty member academic freedom and it gives the University time to evaluate how the faculty member will use such freedom. The Dean of petitioner's College further felt that an important criteria or guideline to be used in determining tenure recommendations is the high probability of continued high quality performance and professional growth in the faculty member, as well as the availability of significantly better qualified people, at equal cost, outside the University. It was agreed that with the coming of a new Dean in the Fall of 1973, more emphasis has been placed on research in the College of Business Administration. In January of 1974, which was the middle of his fifth year of continuous employment at USF, petitioner was considered for tenure. Pursuant to this, he prepared what is known as a "tenure packet" for consideration by those who would be voting on the issue. AT this time, it was the practice for the tenured faculty members of the Marketing Department to review said tenure documents and vote by secret ballot as to whether the petitioner would be granted, denied or deferred tenure status. Comment was also solicited by the department chairman from the nontenured faculty members. At this point the chairman reviewed all materials presented and made his recommendation to the Dean of the College of Business Administration, and the Dean made his recommendation to the Vice-President for Academic Affairs. In this case, petitioner prepared his "tenure packet," utilizing a standardized form and supplementing it with additional materials and correspondence. Petitioner's "packet" was approximately one inch thick and was reviewed by all those casting a vote on the tenure issue. After reviewing said packet, the three tenured faculty members of the Department of Marketing unanimously voted to grant petitioner tenure. At least two of the three tenured members also wrote letters of recommendation on his behalf. Several other persons from outside the Marketing Department also wrote letters of favorable recommendation to the department chairman. The chairman also solicited the responses of nontenured department faculty members by means of a peer evaluation form. Apparently, these forms were not utilized by said faculty members in the manner contemplated. Some apparently did not respond at all, and those who did provide a written response did so by comments, rather than by assigning numerical ratings to the items for evaluation. One faculty member concluded that petitioner "is qualified in view of his outstanding relationships with the local business community." Another refused to pass judgment upon the tenure issue inasmuch as he felt tenure should be abolished. However, he did relate to the chairman that he felt that the research and writing presented in petitioner's tenure document was methodologically questionable. He also questioned the reliability of the survey taken by petitioner to support his teaching ability and the inclusion of formal and informal letters and evaluations dealing with the distributive education courses taught by petitioner through the College of Education (See Finding 12 below). This same faculty member wrote favorably of petitioner's accomplishments in the area of service, but concluded that petitioner "would perhaps find more satisfaction and more recognition of his accomplishments in the area of distributive education than in the Marketing Department." A third non-tenured faculty member suggested that there was a degree of bias with regard to the questionnaire soliciting comments regarding petitioner's teaching effectiveness and that it was impossible to determine whether the data obtained refers to marketing or distributive education courses. This faculty member also felt that petitioner's talents and interests lay elsewhere than in the Marketing Department and that one who would make a greater contribution to the Marketing Department could be obtained at a lower price. He therefore did not feel that petitioner should be granted tenure in the Marketing Department. A large portion of petitioner's tenure packet is composed of student comments received as a result of a questionable mailed by petitioner to his former students. Petitioner was of the opinion that evaluation of teachers by graduates after a period of time was more meaningful than the present student evaluations. Department funds were used to mail these surveys and petitioner prefaced it with a letter to his former students. This letter contained the following language: "Many times in class I said that you would never really know the value of your classes until later. Now it is later; and I need your help. As you know my teaching methods and objec- tives are rather controversial. My appli- cation for tenure and promotion must be submitted on January 15th, and I would like to include in this application your comments as to the effect (good or bad) if any, that I as a teacher have had on your career. If you have the time please include a short note on what you are doing. Teachers seldom know what happens to their former students. I want to thank you in advance for doing this on such short notice. Good luck." It was felt by most witnesses questioned on the subject that the use of such a cover letter and the form of the questions contained in the survey could produce only biased results. The chairman of the Marketing Department reviewed the materials discussed in paragraphs 9 through 12 above and recommended that petitioner be granted tenure, concluding that petitioner had maintained a consistent pattern of productivity over the past five years in teaching, research, writing, presenting programs and service. It was believed by the chairman that petitioner's efforts in all areas would continue at a rapid pace and that "it would be difficult if not impossible to replace this man with one so dedicated and with his unique talents considering his present rank and salary." The chairman praised his service activities and called him an innovative teacher. He remarked that "Professor Wallace is the only person in Marketing (other than Professor Stevens) who appears willing to work with Distributive Education or other units of the University on interdisciplinary programs." With regard to the area of research, the chairman remarked in part that "Some of his research efforts have been some- what misdirected to other than scientific or theoretical marketing per se, but the results of such efforts are applicable to Marketing Education, Distributive Education, and general Business Education. His research methodology is at times technically ques- tionable; however, he has been asked to pre- sent papers and be on discussion panels for the Southern Marketing Association and the American Marketing Association. His articles have appeared in refereed and non-refereed journals..." The Dean of the College of Business Administration reviewed petitioner's tenure packet, the secret ballot by tenured faculty members, letters of recommendation, comments by some nontenured faculty members, and the opinions and recommendation of the Department Chairman. The Dean recognized that petitioner had good rapport with students and had emphasized a practical approach in teaching by taking classes out to businesses. However, it was felt that petitioner's skills seemed "more in salesmanship and organizing ability than in academic analysis and scholarship" and that "he would be more at home practicing in the business world than teaching in the academic world." Dean Dye felt that what was lacking in the marketing faculty were persons evidencing a high degree of scholarship and noted that petitioner had not yet completed his doctoral studies. It was felt that good people, with terminal degrees and research drive were available and should be sought, and that it was not in the best interests of the University to grant petitioner tenure. Dean Dye did not philosophically disagree with petitioner's articles, but felt they were neither scholarly nor based on competent research methodology. The Dean has not seen any significant results done in the area of research by petitioner. As for the area of service, Dean Dye felt that petitioner's efforts were above average in quantity, but below average in quality. With Dean Dye's recommendation, the tenure documents were then sent to Dr. Carl Riggs, Vice-President for Academic Affairs. Dr. Riggs declined to recommend the granting of tenure in petitioner's case, thus supporting the recommendation of Dean Dye. When petitioner requested the reasons for his negative recommendation, Dr. Riggs restated the reasons stated or implied in Dean Dye's explanation of tenure recommendation. These were: "1) No terminal degree and lack of compen- sating experience or background. An apparent lack of scholarship, i.e., depth of knowledge in field, and scholarly productivity not sufficiently evident. Your strengths supplement rather than complement those of other faculty in this department and the need for complementation is greater. Interests of the Department and College better served by finding a replacement who can perform or perform better those functions needed by the Department of Marketing and the College of Business Administration." Riggs was of the opinion that the University could attract persons more qualified than petitioner and that petitioner had done no significant research in the area of marketing. While Dr. Riggs may have disagreed somewhat philosophically with the opinion-type articles written by petitioner, he thought they were refreshing. His decision to deny tenure to petitioner was not based on a difference of opinion with the views expressed in petitioner's writings, but rather because he felt petitioner's articles were not based upon competent research methodology. Riggs acknowledged petitioner's success in the area of service and distributive education. Riggs further stated that neither politics nor petty dislikes or jealousies within the College of Business Administration played any part in his consideration of whether petitioner should be granted tenure. The process of evaluation for tenure recommendation was thus completed, having travelled the following route: preparation by petitioner of his tenure packet; the favorable vote of the department's three tenured faculty members; the receipt of comments from some of the nontenured faculty; the favorable recommendation of the Department Chairman; the negative recommendation of the College Dean; and the negative decision of the Vice-President for Academic Affairs. Petitioner was thereafter timely notified on March 15, 1974, by the Vice- President for Academic Affairs that his employment would not be renewed after Quarter III of the academic year 1974/75, and that the last day of employment with the University would be June 19, 1975. Informal grievance proceedings within the university were thereafter instituted by petitioner. Failing to achieve a satisfactory result from such proceedings, petitioner filed his complaint seeking a plenary hearing. This complaint was forwarded to the Division of Administrative Hearings, and the undersigned Hearing Officer was ultimately assigned to conduct the plenary hearing. The evidence presented at the hearing does suggest that there was some unrest and difference of opinion within both the Department of Marketing and the College of Business Administration. It appears that the Marketing Department was divided into two factions, identified by witnesses as the "qualitative" and "quantitative" factions. There was also some dispute within the College regarding Dean Dye's hiring practices and criteria and guidelines for tenure decisions. While much time and evidence was devoted to the existence of these factions and disputes, it cannot be found from the evidence that their existence tainted the procedures for tenure evaluation in this case. The evidence adduced at the hearing clearly illustrates that petitioner's highest level of competence lies in the area of service to the community. He has built a good rapport with many Tampa businessmen and has organized various business meetings and seminars. Many of those businessmen who testified acknowledged that for the first time they were drawn to the University as a result of petitioner's efforts in a Top Management Seminar and a Career Development Program. Some members of the Marketing Department testified that petitioner was the outstanding member of the department in the area of service to the community. The Vice-President for Academic Affairs agreed that petitioner was doing one of the better jobs within the College of Business Administration in the area of service to Tampa businessmen. While a few members of the faculty did not feel that petitioner's presentation at the Top Management Seminar evidenced scholarship, most Tampa businessmen who testified praised petitioner's efforts as demonstrating a contemporary approach to business problems and a working, practical knowledge in the filed of marketing. With regard to petitioner's efficiency in the area of teaching, it has already been pointed out that petitioner received predominantly average to above average ratings by his peers over the six years in question. A number of his former students testified and concluded that petitioner was one of the best teachers they had ever had. They stated that they worked hard in petitioner's classes and learned more in his classes than in other classes. Some testified that petitioner's courses were more difficult and demanding then other business courses. Petitioner stressed the application, rather than the mere memorization, of theory and sent this students out to various businesses to prepare research projects. Some of his former students described him as dynamic, interesting, resourceful and well-prepared for class. Other faculty members thought petitioner to be sincerely interested in practical education and in helping his students. The graduating seniors of 1974 voted petitioner one of the top ten teachers of the University of South Florida. There was evidence that petitioner's student evaluations improved markedly in 1973. One marketing professor attributed this to the fact that petitioner stopped giving written examinations and his students received higher grades. The evidence illustrates that in 1972, petitioner's student evaluations were at approximately the college median level. In 1972, he gave his students 17 A's, 100 B's 34 C's, 4 D's and 11 F's. In 1973 his student evaluations were consistently above the college median level. In that year the grade distribution to students was 138 A's, 64 B's, no C's, 1 D and 1 F. Other reasons were, however, offered for the increase in high grades, such as student motivation, change of teaching methodology and the quality of student who registers for the course based upon the reputation of the teacher as being hard or easy. A faculty member who substituted for petitioner testified that petitioner's students had not read the course syllabus or the textbook. Others testified that. sending students to various businesses to do research projects was not innovative, and that other members of the marketing department utilized similar techniques. Of the three areas for evaluation, it was the conclusion of some that petitioner's weakness lies in the area of research and other scholarly activities in the field of marketing. His progress on his dissertation has been previously discussed. While he has written a number of published articles, the evidence shows that most of these can be classified as opinion articles or essays, rather than as articles based upon competent research methodology. Several articles and papers are in the area of business education, not marketing. There was some testimony that these articles, many of which are variations on the same theme, constituted comments on relevant social issues, and should not be measured on the basis of whether they are scholarly and methodologically sound. Yet, Petitioner attached his professional credentials to these articles and listed them in his tenure documents under the heading of scholarly publications. The Dean of the College of Business Administration and the Vice-President for Academic Affairs, who voted against petitioner for tenure, testified that the main reason for not granting tenure was lack of a terminal degree and lack of evidence of scholarly research. Although some disagreed philosophically with the articles written by petitioner, their vote to deny tenure was not based on this fact, but upon the fact that the articles did not display evidence of competency in scholarly research. Petitioner was instrumental in getting other marketing professors to write articles for Florida Trend Magazine, but he himself did not participate in the writing of the series of articles which appeared. Petitioner also listed in his tenure documents that he was working on a book. There was evidence that no progress, in written form, has been completed to date on said book, although petitioner stated in his tenure documents that "the basic research has been completed." Petitioner did obtain six teaching grants from the State Department of Education. However, these grants were in the area of distributive education or in the field of training teachers and were obtained through the College of Education, not the College of Business Administration. The evidence concerning petitioner's degree of competency in the area of research and other scholarly activities with regard to seminars and outside consulting work is conflicting. While many indicated they were pleased with petitioner's performance in the seminars and consulting work, others expressed displeasure with petitioner's performance. Petitioner has received recognition for his publications. He has presented papers to the Southern Marketing Association, and was nominated for the American Association of Collegiate Schools of Business - Western Electric Fund Award. These presentations were, however, more in the field of business or distributive education than in marketing.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is recommended that the complaint be dismissed for the reason that petitioner did not meet his burden of demonstrating the unlawfulness of the tenure and nonrenewal decisions reviewed herein. Respectfully submitted and entered this 26th day of ,January, 1976, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9676 COPIES FURNISHED: William D. Holland, Jr., Esquire Suite 304, First National Bank Building 215 Madison Street Tampa, Florida 32602 D. Frank Winkles, Esquire & William E. Sizemore, Esquire of Shackleford, Farrior, Stallings & Evans P.O. Box 3324 Tampa, Florida 3324 Dr. Cecil Mackey, President University of South Florida ADM 241 Tampa, Florida
The Issue The issue in this case is whether the Petitioner, Gloria Godbolt, should be deemed, pursuant to Rule 22A-7.010(2), Florida Administrative Code, to have abandoned her position of employment with the Respondent, University of Florida.
Findings Of Fact Based on the stipulations and admissions of the parties, on the exhibits received in evidence, and on the testimony of the witnesses at hearing, I make the following findings of fact. At all times material to this case, the Petitioner, Gloria Godbolt, was a Career Service employee of the Division of Finance and Accounting of the University of Florida. The last position held by Petitioner with the University of Florida was that of a Clerk Specialist in the Payable and Disbursement Services Section of the Division of Finance and Accounting. Petitioner last reported to work at the University of Florida on April 25, 1986. On April 27, 1986, the Petitioner called her sister, Ella Godbolt, collect from the Broward County jail. The Petitioner asked her sister to call the Petitioner's supervisor and tell the supervisor that the Petitioner was sick. On April 28, 1986, and again on April 29, 1986, Petitioner's sister, Ella Godbolt, called the Petitioner's office to notify the Respondent that the Petitioner was sick and would not report to work on each of these two days. On April 30, 1986, Ella Godbolt told the Petitioner's supervisor, Grace Strawn, that the Petitioner was sick, that the Petitioner had a doctor's appointment for the following day, and that the Petitioner would not be at work for the rest of the week. The Petitioner called her sister the following Sunday night, May 4, 1986, and asked her sister to call the Petitioner's supervisor and tell the supervisor that the Petitioner would not be at work that week, and that the Petitioner would explain everything later. On Monday, May 5, 1986, Ella Godbolt again talked to Grace Strawn on the telephone and informed Strawn that the Petitioner would not be at work that week and that Petitioner would call later in the week to explain the reasons for her absence. The Petitioner did not call Grace Strawn during the week of May 5, 1986. From May 6, 1986, through May 16, 1986, both dates inclusive, neither the Petitioner nor anyone on her behalf communicated either orally or in writing with the Respondent to report that the Petitioner would be absent from work or to explain the reasons for the Petitioner's absence. The Petitioner was advised by her attorney Michael Swan, that she should not report the fact of her arrest and confinement to anyone. However, that advice was not given to her until approximately one week after her incarceration. From April 26, 1986, through May 16, 1986, the Petitioner was incarcerated in Broward County, Florida, and, because of that incarceration, was unable to report to work on any of those days. During her period of incarceration, the Petitioner had access to a telephone which could be used to make "collect" long distance calls and she also had available the means necessary to write and mail a letter to her employer. The Petitioner neither called nor wrote to her employer to report her absence or to request appropriate leave. Instead, the Petitioner arranged for her sister to call the Petitioner's employer during the Petitioner's first week of absence to falsely report that the Petitioner was sick and to request sick leave for her absence. Based on these false representations, the Petitioner was granted sick leave for the first week of her absence. On May 17, 1986, which was a Saturday, the Petitioner returned to Gainesville. Upon learning that some of the employees in her department were working that day, the Petitioner went to her workplace to ask about her job. Her supervisor, Grace Strawn, told the Petitioner that it was out of her hands. The Petitioner did not explain to Strawn that she had been incarcerated and had not been sick. Again, on May 19, 1986, when the Petitioner talked with Cynthia Fidalgo Evans, Associate University Controller, asking what she could do to get her job back, she misrepresented to Ms. Evans that she had been hospitalized in Broward County. It was not until May 30, 1986, two weeks after the Petitioner had been released from jail, that the Petitioner corrected the record by stating in a letter to William Zeanah, Assistant University Controller, that she had been incarcerated and not sick as previously reported. The Petitioner was aware that she had to let her employer know if she was going to be absent from work and obtain appropriate leave for her absence. She was also aware that three consecutive workdays of unauthorized leave were considered job abandonment by the Respondent. On September 15, 1980, when the Petitioner was first employed, she signed a statement acknowledging receipt of the Career Service Employee Handbook of the University of Florida. This handbook provides at page 27: If you must be unavoidably absent from your job (that is, other than planned vacations or personal business times that have been approved in advance), let your supervisor know as soon as possible on the first day of absence why you must be absent and when you expect to return. If your anticipated return date changes, keep your supervisor informed. Unapproved absences for three consecutive workdays are considered job abandonment and, therefore, voluntary resignation. . The Respondent has consistently notified employees who have been on unauthorized leave for three consecutive workdays that they are considered to have abandoned their jobs and to have voluntarily resigned from the Career Service system. The Respondent needed to know if and when it could expect the Petitioner to report to work in order to make appropriate arrangements to have her work done in a timely fashion during her absence. As a Clerk Specialist in the Payable and Disbursement Services Section of the Division of Finance and Accounting, the Petitioner processed the necessary documents to pay vendors for the foods and services they provided to Respondent. Petitioner's task was the last step performed by Respondent before submitting vendors' invoices to the State Comptroller for payment by the issuance of warrants. The Petitioner was therefore aware of the importance of her job and of Respondent's need to have her job performed within specified time constraints. Petitioner was further aware that the Respondent is required by law to process vendors' invoices during a 15-day period and that failure to do so could result in penalties being imposed against the Respondent and disciplinary action taken against employees who persistently fail to process vendors' invoices in a timely fashion. Due to Petitioner's long and continuous unreported absence, Petitioner's supervisor had to work two consecutive Saturdays with other members of her staff in order to process vendors' invoices within the five-day period allotted to her office to accomplish that task.
Recommendation Based on all of the foregoing, I recommend the entry of a Final Order concluding that the Petitioner, Gloria Godbolt, was appropriately terminated for abandonment in accordance with Rule 22A-7.010(2)(a), Florida Administrative Code. DONE AND ORDERED this 4th day of May, 1987, at Tallahassee, Florida. MICHAEL M. PARRISH Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of May, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-3929 The following are my specific rulings on each of the proposed findings of fact submitted by each of the parties. It will be helpful to a complete understanding of the rulings which follow to know that there was a great deal of conflict in the testimony of some of the witnesses who testified at the hearing. Most, if not all, of the conflicts in the testimony have been resolved in favor of the version of the facts advanced by the Respondent. In resolving the conflicts in the testimony, I have taken into account a number of matters, the most important of which are: how logical or illogical the competing versions were, whether the testimony was consistent or inconsistent with other reliable evidence, whether the witness had an interest in the outcome of the case, the extent to which the witness' credibility was impeached by prior inconsistent statements, if any, and, of course, the demeanor of the witness while testifying. It should also be noted that the finding that the Petitioner was the instigator of the false reports of her illness that were passed along to the Petitioner's employer is a finding based on the most reasonable inference to be drawn from the evidence. Rulings on Petitioner's proposed findings Accepted in part and rejected in part. Rejected portion relates to what Ella Godbolt told the supervisor. Accepted in part and rejected in part. Rejected portion relates to what Ella Godbolt told the supervisor. Accepted in part and rejected in part. Rejected portion relates to what the Petitioner told her sister to do. Accepted in substance with minor modifications in the interest of accuracy. Rejected as not supported by credible evidence. Accepted, with additional findings in the interest of clarity and accuracy. Rejected as irrelevant to the disposition of this case. Rejected as irrelevant to the disposition of this case. Rejected as not supported by credible evidence and as contrary to the greater weight of the evidence. Rejected as not supported by credible evidence and as contrary to the greater weight of the evidence. Accepted in substance. Rejected as subordinate and unnecessary details. Accepted in substance. Accepted in substance. Accepted, with additional findings in the interest of clarity and accuracy. Rulings on Respondent's proposed findings Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. First four sentences of this paragraph are rejected as subordinate and unnecessary details. Last two sentences are covered in the explanatory comments at the beginning of this Appendix. Accepted. Accepted. Rejected as subordinate and unnecessary details. Accepted. Accepted, with exception of last sentences and quoted material which are rejected as subordinate and unnecessary details. First sentence of this paragraph accepted. Second sentence rejected as unnecessary surplusage. Rejected as irrelevant and unnecessary. COPIES FURNISHED: Carla D. Franklin, Esquire Rodney W. Smith, P.A. Post Office Box 628 Alachua, Florida 32615 Isis Carbajal de Garcia, Esquire Associate General Counsel 207 Tigert Hall University of Florida Gainesville, Florida 32611 Augustus D. Aikens, General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Adis Vila, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550
The Issue Whether Respondent violated the Florida Civil Rights Act of 1992, as alleged in the Charge of Discrimination filed by Petitioner on February 5, 2001.
Findings Of Fact In the fall of 1999, Respondent, North Florida Community College (NFCC), advertised for candidates for the position of Vice President for Academic and Student Affairs. Respondent advertised to fill this position by placing an advertisement in local newspapers, as well as in Gainesville, Florida. Additionally, an advertisement for this position was placed in the Affirmative Action Register, which is a publication for minorities, as well as in the Chronicle of Higher Education. The advertisement did not specify a salary and specified an application deadline of November 9, 1999. The position vacancy advertisement included the following: Qualifications include: an earned doctorate from an accredited institution of higher education; at least five years of successful progressively responsible administrative experience in academic programs, preferably at a community college; some previous experience in teaching at the postsecondary level; and/or experience as a counselor or administrator for student services functions, this latter qualification being preferable. Experience in the Florida Community College System is a plus. William Hunter is the Human Resources Director for NFCC. Mr. Hunter was responsible for placing the advertisements for the Vice President's position in the various publications. He is also responsible for ensuring that search committees are appointed, communicating with applicants, determining salaries to be offered to individual candidates based upon an established procedure, and offering positions by telephone to those persons selected. A search committee was appointed by the President of NFCC, Dr. Grissom. There were five members of the selection committee, including Clyde Alexander, NFCC's Athletic Director and Equity Coordinator. Mr. Alexander is African-American. Initially, 51 persons applied for the position. The selection committee narrowed the list of applicants from 51 to eight semi-finalists. Mr. Hunter was instructed to notify each semi-finalist that he/she was selected. He notified each of the semi- finalists by telephone and coordinated interview dates. Mr. Hunter sent a letter to each semi-finalist. The letters informed the candidates of their selection as a semi-finalist, confirmed their interview date and time, and advised them that NFCC would be paying for the travel expenses to Madison, Florida, for the interviews. The letters to the semi-finalists also stated that the salary range was $45,000 to $75,000 per year, "depending on experience." The salary range was established by the college's Board of Trustees. Petitioner is an African-American male. Petitioner was selected as a semi-finalist. Also among the semi-finalists were Dr. Barry Weinberg and Dr. Thomas Eaves, both white males. Interviews were conducted between December 1 and December 9, 1999. Each of the semi-finalists was given a tour of the campus and had an opportunity to meet with various college officials, as well as the President and members of the search committee. After the interviews of the semi-finalists were completed, the selection committee provided a list of finalists to the President.1/ The first choice of the selection committee was Dr. Barry Weinberg, who at that time was employed as Vice President for College Advancement at Rockingham Community College in Wentworth, North Carolina. Dr. Weinberg holds a Bachelor of Science in Education from State University of New York at New Paltz; a Master of Science in Student Personnel Services (Higher Education Administration) from State University of New York at Albany; a Certificate of Continuing Studies in Applied Behavioral Sciences from Johns Hopkins University; and a Doctor of Education in Higher Education Administration from Vanderbilt University. Mr. Hunter offered the position to Dr. Weinberg pursuant to instructions from President Grissom. Despite the letter which informed the semi-finalists that the top of the salary range was $75,000, Mr. Hunter was informed by the President that no applicant could be offered more than $70,000 per year because of a budget shortfall. The salary to be offered to an applicant was based on the application of an established formula to the applicant's experience as follows: subtracting the minimum salary from the maximum salary in the published salary range for the position; dividing that number by (30) to arrive at a multiplier; multiplying the applicant's years of relevant experience (after subtracting the years of experience required to qualify for the position) by the multiplier; and adding the result to the minimum salary in the range. The multiplier for the Vice President's position was $1,000. In applying the salary formula to Dr. Weinberg, Mr. Hunter determined that he had 29 years of relevant experience. He then subtracted the five years required experience, resulting in Dr. Weinberg having credit for 24 years of relevant experience, for purposes of the salary formula. The 24 years of experience was multiplied by $1,000 and added to the published base salary of $45,000. This resulted in the initial starting salary to be offered to Dr. Weinberg to be $69,000. Mr. Hunter had authority from President Grissom to add an additional amount of $2,500 per year in order to attract a candidate, provided that no candidate was offered more than $70,000 per year. Dr. Weinberg did not accept the initial offer of $69,000. Mr. Hunter then offered $70,000, which was ultimately rejected by Dr. Weinberg. Pursuant to direction from President Grissom, Mr. Hunter then offered the job to Petitioner. Petitioner holds a Bachelor's degree in Business Administration from Culver- Stockton College; a Master of Science in Guidance Counseling from University of Nevada; a Doctorate in Counselor Education from the University of Iowa; and holds a certificate from Harvard University in the Management Development Program. Mr. Hunter applied the salary formula by determining that Petitioner had 21 years of relevant experience. He subtracted the five required years of experience resulting in 16 years of relevant experience. After multiplying 16 by $1,000 and adding that to the minimum salary of $45,000, Mr. Hunter offered $61,000.00 to Petitioner. When Petitioner did not accept the offer, he increased the offer to $62,500. Although he was authorized to offer him $63,500, it was Mr. Hunter's understanding, after a telephone conversation with Petitioner, that Petitioner would not accept the job for less than $82,000. Therefore, Mr. Hunter did not bother offering the additional $1,000 to Petitioner. In any event, whether or not Mr. Hunter offered $63,500 to Petitioner, he was not authorized to offer $70,000 to Petitioner, as had been offered to Dr. Weinberg, because of the application of the salary formula to Petitioner. Pursuant to instruction from Dr. Grissom, Mr. Hunter next offered the position to Dr. Thomas Eaves. Dr. Eaves holds a doctorate and lesser degrees from North Carolina State University, and has teaching and related research experience at numerous universities. Mr. Hunter applied the salary formula and determined that Dr. Eaves should be offered $67,000. Mr. Hunter was authorized by the President to an additional $500.00 on top of the $2,5000 salary "sweetener" because the college had been turned down twice. Mr. Hunter called Dr. Eaves and initially offered him $67,000. Ultimately, Mr. Hunter increased the offer to $70,000, which was accepted by Dr. Eaves. Petitioner left Virginia Commonwealth University in July 2001 to work at West Chester University where he is Dean of Undergraduate Studies and Student Support Services. His starting salary at West Chester University was $84,500. His current salary, which was effective July 1, 2002, is $88,500. If Petitioner had accepted the position at NFCC for $63,500, he would have received a five percent pay increase in 2000 to $66,675 per year. However, because of a college-wide salary freeze which has been in place since 2000, Petitioner would not have received any further salary increases.
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 Petitioner's Charge of Discrimination. DONE AND ENTERED this 13th day of October, 2003, 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 13th day of October, 2003.
