The Issue The issue for determination is whether Respondent committed an unlawful employment act by discriminating against Petitioner on the basis of marital status in violation of the Florida Civil Rights Act of 1992, as amended.
Findings Of Fact In June 2008, Dr. Hernandez was hired at the University as a faculty member of the School of Pharmacy in the position as a professor. She had a one-year employment agreement, with no presumption of renewal and a starting salary of $97,000.00. At all times material hereto, Dr. Hernandez was divorced. Dr. Hernandez had been divorced from her husband since 1995. The University was aware that Dr. Hernandez was divorced when she was hired. She had been recruited by the University's then Dean of the School of Pharmacy, Dan Brown, who, at that time, was also divorced. Marital status is not a factor in hiring an employee by the University. Dr. Hernandez's marital status was not a consideration or a factor in her hiring. By February 15th of each year, faculty members are notified whether their employment contract will be renewed for the following year. If a faculty member is not notified by February 15th that their contract will not be renewed, the faculty member's contract is automatically renewed for another year. Dr. Hernandez's contract was renewed for the 2009-2010 academic year. Spring 2010 Dean Brown was one of Dr. Hernandez's supervisors. For all the professors in the School of Pharmacy, Dean Brown prepared and distributed a list of all of their current work load ratios. The goal for all Pharmacy professors was a ratio of 0.8. Dr. Hernandez's work load ratio was 0.68, which was below the goal. She failed to meet the goal of the work load ratio for all Pharmacy professors. Dr. Hernandez refused to accept the work load ratio as a reliable tool of performance and considered it as irrelevant to her. She did not express or exhibit an interest in improving her work load ratio. Also, Dean Brown prepared and distributed a comparative analysis of student surveys of all the Pharmacy professors. Students were requested to score the performance of all the Pharmacy professors in 12 different areas. Based on the student surveys of faculty performance, Dr. Hernandez was the second lowest ranked Pharmacy professor. She scored very low in the following areas: "presents material in concise, organized, easy-to-follow manner" and "is an effective teacher." Dr. Hernandez refused to accept the student surveys as a reliable tool of performance and had no interest in the comparative analysis from the student surveys. Additionally, she failed to express or exhibit an interest in improving in those areas in which the students gave her a low ranking. During his supervision of Dr. Hernandez, Dean Brown received several complaints from faculty members regarding emails that they had received from her. The faculty members considered the emails to be "caustic," "obnoxious," and "insulting." As a result, Dean Brown met with her and advised her to stop sending antagonistic emails and insulting her fellow faculty members. One week later, Dr. Hernandez sent such an email to a fellow professor, Mary Ferrill, Ph.D. Dr. Ferrill was married to Dean Brown. Dr. Hernandez's email insinuated that Dr. Ferrill received special treatment because she was married to Dean Brown and asked whether she "sang and danced" for her students. Both Dean Brown and Dr. Ferrill considered the email to be insulting and confronted Dr. Hernandez. Dean Brown raised his voice at Dr. Hernandez when he confronted her because he was very upset in that he had, only a week earlier, advised her to stop sending antagonistic and insulting emails to fellow faculty members. Dean Brown admitted to the University's Human Resources Office that he was wrong in raising his voice to Dr. Hernandez, and he apologized to Dr. Hernandez. Because of the confrontation with Dean Brown, Dr. Hernandez was fearful that her contract would not be renewed. Many of the classes at the School of Pharmacy are team taught: one course coordinator with several faculty members teaching segments of the course. Essential to team teaching is faculty members exhibiting team work. Dr. Hernandez was one of the team members who taught PHR 2264, Endocrinologic and Musculosketal Pharmacotherapy. The course coordinator was Professor Dana Brown, Ph.D. Dr. Hernandez repeatedly failed to meet established deadlines for team members in PHR 2264. Exam questions from team members for PHR 2264 were to be submitted to Dr. Dana Brown two weeks before the scheduled exams. Her responsibility was to carefully review all questions, including how the questions overlapped with questions submitted by other faculty members. Dr. Hernandez failed to submit timely her exam questions, forcing Dr. Dana Brown to follow-up with Dr. Hernandez regarding the questions. Further, Dr. Hernandez would generally not inform Dr. Dana Brown ahead of time that she would be submitting her exam questions late. On one occasion, Dr. Hernandez submitted her exam questions only one day before the exam. Additionally, exam lectures were to be posted 48 hours in advance of a class. Dr. Hernandez failed to post her exam lectures 48 hours before she taught her class and, generally, posted the exam lectures the night before her class. Students complained to Dr. Dana Brown that Dr. Hernandez was difficult to understand. Dr. Dana Brown observed some of Dr. Hernandez's lectures and thought that Dr. Hernandez failed to answer students' questions. Also, on one occasion, Dr. Dana Brown, responding to an email that she received from Dr. Hernandez, hit "reply all." Dr. Hernandez became upset and raised her voice to Dr. Dana Brown because the response went to persons other than Dr. Hernandez. Dr. Dana Brown spoke to Wagdy Wahba, Ph.D., the then Interim Associate Dean, of the School of Pharmacy several times regarding the problems that she was having with Dr. Hernandez. Summer 2010 In the summer 2010, Dean Brown stepped down as Dean of the School of Pharmacy to focus on teaching. In August 2010, Dr. Ferrill became the Dean of the School of Pharmacy. Fall 2010 Faculty Activities Plan and Report The School of Pharmacy uses a performance instrument for its professors, referred to as a Faculty Activities Plan and Report (FAPR), which is, basically, an evaluation of a professor's performance in the previous year and expectations for the future. A FAPR that shows significant student or faculty concerns about teaching or collegiality is considered deficient. Dr. Wahba completed the FAPR for all faculty members of the School of Pharmacy. Dr. Wahba was Dr. Hernandez's immediate supervisor. He completed her FAPR. In October 2010, Dr. Hernandez received her FAPR from him and met with him to discuss it. In the "Dean's Comments" section for the FAPR, Dr. Wahba included the following issues that he determined that Dr. Hernandez needed to address: [a.] Not showing up for scheduled class in February 2010, and not sending the recorded lecture to the students until 21 days later. [b.] How to improve relationship, communication & cooperation with other faculty & coordinators within the team-taught courses. [c.] How to avoid reactive responses to concerns expressed by colleagues & administration, verbally and via e-mail[.] [d.] Currently not posting lectures on e- college in a timely fashion according to school policy[.] [e.] Currently not submitting exam questions to coordinators in a timely fashion[.] [f.] Showing up late or not at all to scheduled review sessions and committee meetings[.] Dr. Wahba and Dr. Hernandez discussed his comments. Additionally, Dr. Wahba noted in the Dean's Comments section that, of great concern, was how Dr. Hernandez was going to address the negative comments from students in her student surveys. The students' comments mainly revolved around Dr. Hernandez's disorganized lecture presentations and her difficulty in explaining material clearly. During the meeting in October 2010 with Dr. Wahba on the FAPR, Dr. Hernandez showed no willingness to improve in the areas that he had determined deficient. Further, she took the position that she had no deficiencies in her performance and demanded proof from him of her deficiencies. After the October 2010 meeting, Dr. Wahba met with Dr. Hernandez a second time to discuss her FAPR. She continued to resist his efforts to address the areas determined by him to be deficient. After the meetings, the next step in the FAPR process was for Dr. Hernandez to respond to Dr. Wahba's comments with a written plan of action and to sign the FAPR. She failed to do so. She was the only faculty member of the School of Pharmacy who did not complete the FAPR process. Dr. Hernandez blames Dr. Wahba for her not completing the FAPR process, taking the position that his responsibility was to "pursue" her to complete the FAPR process. December 13, 2010 Meeting As Dean of the School of Pharmacy, one of Dr. Ferrill's responsibilities was to review the FAPRs of the School of Pharmacy's faculty. In the fall of 2010, three faculty members had deficient FAPRs: Dr. Hernandez; Luna Bennett, Ph.D.; and Devon Sherwood, Ph.D. Dr. Ferrill met with each of them to discuss their deficient FAPR. Before meeting with Dr. Hernandez, Dr. Ferrill met with Dr. Wahba and discussed Dr. Hernandez's FAPR. Dr. Wahba advised Dr. Ferrill that he had reached an impasse with her in that she had never responded to his comments in the FAPR. On December 13, 2010, Dr. Ferrill met with Dr. Hernandez to discuss her FAPR and her plans to improve on the deficiencies. Others who attended this meeting included Dr. Wahba and Keysha Bryant, Ph.D., a professor in the School of Pharmacy. During the meeting, Drs. Ferrill and Wahba discussed areas in which Dr. Hernandez's performance was good. Further, they discussed the areas of deficiency and informed her that she needed a plan of action to improve in those areas. Additionally, Dr. Ferrill advised Dr. Hernandez that she was at risk of non- renewal of her contract unless she made strides to improve on her areas of deficiency. During the meeting, Dr. Hernandez was not receptive to the discussion regarding her deficiencies. She indicated, among other things, that nothing was wrong with her teaching skills and that she saw no reason to change what she was doing. Additionally, when queried about her plan of action to address the negative comments in the FAPR, she became emotional and raised her voice. Sometime near the end of the meeting, Dr. Hernandez expressed that she was emotionally upset, explaining that her ex- husband was ill and that she was taking care of him. Without questioning from anyone, she stated voluntarily that her ex- husband was living with her, indicating that she recognized that she was sinning in the University's eyes, but not in the eyes of God. The University has a policy against members of the University, including faculty and students, having extramarital sexual relationships. The policy prohibits a member of the University from having extramarital sexual relationships regardless of whether the subject person was divorced, single, or married to someone other than the person with whom the subject person was having a sexual relationship. Dr. Ferrill believed that Dr. Hernandez was admitting to violating the University's policy on extramarital sexual relationships. Dr. Ferrill questioned her further as to whether she was having an extramarital sexual relationship with her ex- husband, but Dr. Hernandez refused to answer. Prior to the meeting on December 13, 2010, Dr. Hernandez had never spoken of her living arrangement or sexual relations with her ex-husband to Dr. Ferrill. Further, prior to the meeting on December 13, 2010, Dr. Ferrill was not aware of Dr. Hernandez's living arrangements. Dr. Ferrell believed that she was required to report any University policy violation or potential violation of which she was or became aware. As a result, Dr. Ferrill advised Dr. Hernandez that she (Dr. Ferrell) was required to report the potential policy violation to her (Dr. Ferrill's) supervisor. After the meeting on December 13, 2010, Dr. Ferrill reported to Provost Joseph Kloba that Dr. Hernandez had admitted to violating the University's policy against extramarital relations. Once Dr. Ferrill made the report to Provost Kloba, she considered that her duty to report was fulfilled. Dr. Ferrell spoke to no one else regarding Dr. Hernandez's living arrangements. Provost Kloba determined that no violation of the University's policy existed and that no further action was warranted. Once Provost Kloba made his decision, Dr. Ferrill considered Dr. Hernandez's living arrangements to be a non-issue. Dr. Hernandez's Living Arrangements In October 2010, Dr. Hernandez's ex-husband had a health crisis while visiting family in Georgia. Due to his health crisis, he suffered, among other things, cognitive deficits and became totally disabled. In November 2010, Dr. Hernandez moved her ex-husband to E. J. Healey Rehabilitation Facility in West Palm Beach, Florida. He remained at the facility until March 2011. The evidence demonstrates that no one at the University was aware of Dr. Hernandez's living arrangements until the meeting on December 13, 2010. Post December 13, 2010 Meeting and Non-Renewal of Contract After the meeting on December 13, 2010, Drs. Ferrill and Wahba gave Dr. Hernandez an extension to respond to her FAPR. Three days later, on December 16, 2010, Dr. Hernandez submitted her response. In her response, Dr. Hernandez indicated that there was no need to make any significant improvements. Further, she indicated that she did not understand the issues presented and would discuss the comments with the University's Human Resources Office. As to students' critical comments, she indicated that she did not know what to do with the comments, but would conduct a research project about it. In January 2011, Dr. Hernandez participated in a group interview conducted by the School of Pharmacy for the position of Dean of Faculty. The interviewee was Seena Haines, Ph.D. Dr. Hernandez asked Dr. Haines questions which appeared to relate to the spring 2010 incident that Dr. Hernandez had with then Dean Brown when he confronted Dr. Hernandez about the email she (Dr. Hernandez) had sent to Dr. Ferrill. Dr. Hernandez's questions to Dr. Haines were considered by Dr. Ferrill to be inappropriate for a group interview; by Dr. Dana Brown to be unprofessional; and by Dr. Wahba to be out of place. Dr. Ferrill recommended to Provost Kloba that Dr. Hernandez's contract not be renewed for another year. Dr. Ferrill's recommendation was based upon the deficiency issues identified in the FAPR regarding Dr. Hernandez's teaching and collegiality and upon Dr. Hernandez's lack of interest in improving her deficiencies. Provost Kloba, who was also the Chief Academic Officer, was responsible for making the decision as to whether to renew Dr. Hernandez's contract. He reviewed, among other things, her FAPRs, including the student comments and her responses, and received feedback from Drs. Ferrill, Wahba and Brown (Dean Brown in spring 2010). Provost Kloba decided to not renew Dr. Hernandez's contract for another year. Dr. Hernandez's living arrangements were not considered and were not a factor in Provost Kloba's decision of non-renewal. Regardless with whom Dr. Hernandez was living, Provost Kloba would not have renewed her contract. By letter dated February 1, 2011, Provost Kloba informed Dr. Hernandez that her contract would not be renewed for another year. By letter dated February 4, 2011, Provost Kloba informed Dr. Hernandez that, effective February 1, 2011, through June 30, 2011, she was placed on paid administrative leave. She received all pay and benefits through the expiration of her annual contract, i.e., June 30, 2011. Divorced Faculty Members The evidence demonstrates that the University employs several faculty members who are divorced. The evidence demonstrates that Dr. Brown (Dean Brown) is divorced. Comparative Employees The evidence fails to demonstrate any similarly situated employee who was not divorced and was treated more favorably than Dr. Hernandez. The evidence fails to demonstrate any employee who was accused of the same or similar conduct and was treated more favorably than Dr. Hernandez. Current Employment Currently, and since January 2012, Dr. Hernandez is a Professor of Medical Sciences at California North State University, College of Pharmacy. She is subject to a yearly appointment. Her yearly salary is $110,000.00.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the discrimination complaint of Maria Hernandez, Ph.D. DONE AND ENTERED this 4th day of February, 2013, in Tallahassee, Leon County, Florida. ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of February, 2013. COPIES FURNISHED: Stuart Silverman, Esquire Stuart Silverman, P.A. Post Office Box 812315 Boca Raton, Florida 33481 Peter L. Sampo, Esquire Lisa Ann McGlynn, Esquire Allen, Norton and Blue, P.A. 121 Majorca Avenue, Third Floor Coral Gables, Florida 33134 Denise Crawford, Agency Clerk Florida Commission on Human Relations Suite 100 2009 Apalachee Parkway Tallahassee, Florida 32301 Cheyanne Costilla, Interim General Counsel Florida Commission on Human Relations Suite 100 2009 Apalachee Parkway Tallahassee, Florida 32301
The Issue The basic issue in this case is whether the employer, School Board of Alachua County, committed an unlawful employment practice within the meaning of Section 760.10(1)(a), Florida Statutes, by discharging or otherwise discriminating against Ms. Bates on the basis of her handicap. At the commencement of the hearing the Petitioner moved for a judgment on the pleadings or a determination that the facts were not in dispute on the basis of the respondent having failed to file an answer in accordance with Rule 22T- 9.008(5)(a), Florida Administrative Code. The Hearing Officer reserved ruling on the motion and provided the parties an opportunity to present their evidence. Both parties presented the testimony of witnesses and both parties offered exhibits. On March 17, 1988, a transcript of the hearing was filed and on March 28, 1988, both parties filed proposed recommended orders containing proposed findings of fact and conclusions of law. Careful consideration has been given to the parties' post-hearing submissions during the formulation of this Recommended Order. Specific rulings on all proposed findings of fact are contained in the Appendix which is attached to and incorporated into this Recommended Order.
Findings Of Fact Based on the stipulations of the parties, on the testimony of the witnesses, and on the exhibits received in evidence, I make the following findings of fact: The Petitioner, Ann Bates, began employment with the Respondent, School Board of Alachua County, on August 15, 1983, as a classroom aide assigned to Stephen Foster Elementary School. In August of 1985, she was transferred to the A. Quinn Jones Center and assigned to the classroom of a teacher named Sue Clarey. The Principal at A. Quinn Jones Center had initially contacted the Petitioner and asked her to work at his school. The Petitioner continued to be employed by the Respondent until March 14, 1986. The Petitioner's last job title was Paraprofessional II. On February 28, 1986, the Petitioner saw Dr. W. Alvin McElveen and was given a definite diagnosis of multiple sclerosis. This diagnosis was confirmed by Dr. Richard Cunningham in early March, 1986. Petitioner has been a patient of Dr. Richard Cunningham for approximately four and a half years. In March of 1986, Dr. Richard Cunningham did not place any restrictions on Petitioner's employment. Petitioner's duties as a Paraprofessional II at A. Quinn Jones included feeding and tutoring students, as well as assisting the teacher in general clerical and administrative tasks. At all times the Petitioner was able to satisfactorily complete the job duties of a Paraprofessional II. On March 3, 1986, the Petitioner notified Mr. Jeff Jones, the Principal at A. Quinn Jones Center, that she had been diagnosed as having multiple sclerosis. In March of 1986, the Petitioner took six days off from work on sick leave (March 4, 5, 6, 7, 10 and 11) and returned to work on the morning of Wednesday, March 12, 1986. On March 12, 1986, the school secretary, Ms. Dorothy Emo, placed a handwritten note in the Petitioner's school mailbox, which stated, in substance, "Please see Mr. Jones at your convenience." It was the common practice of the Principal to speak informally with any employee who was returning from more than a day or two of sick leave to ascertain how the employee was doing and to make sure that the employee felt well enough to return to work. On the morning of Wednesday, March 12, 1986, the Petitioner left the classroom, informing the teacher that she was going to see Mr. Jones, and went to the front office. She met with Mr. Jones at about 10:00 a.m. In the Principal's office, the Petitioner expressed her frustration with her medical condition and stated that it was her desire to resign her employment. In response to the Petitioner's expressed desire to resign, Mr. Jones asked the school secretary to bring in a "resignation form," which she did. It was a new form, with which the Principal was not familiar. The Petitioner and Mr. Jones then discussed her leaving employment and the effect it would have on her ability to collect unemployment compensation. Both the Petitioner and Mr. Jones believed that a voluntary resignation would preclude her from being able to receive unemployment compensation. This belief, as it turned out, was erroneous. The Respondent School District had recently revised its separation form to include all three types of separations (voluntary resignation, involuntary termination, and retirement) on one form. Previously, resignation and terminations were processed on separate, different forms. The Principal, Mr. Jones, had never used this particular separation form. Further, the Principal had never used any separation form which indicated that an employee was being involuntarily terminated. He was also unsure what was meant by the term "involuntary termination." The Petitioner and Mr. Jones believed, albeit erroneously, that for the purpose of permitting the Petitioner to separate from employment and also collect unemployment compensation, the "involuntary termination" selection was the appropriate choice. This was by their mutual agreement. Mr. Jones had the form prepared in that manner and then he and the Petitioner signed the form. Mr. Jones gave a copy of the signed form to the Petitioner (which was contrary to the normal procedure) and then forwarded the original of the form to the district office for processing. Mr. Jones also called Will Griffin, the district supervisor of personnel, informed him of Ms. Bates' resignation, and told him that the form was en route. The above-mentioned form was received by Mr. Griffin around noon on March 12, 1986. Upon reviewing the form, he realized that it had been filled out incorrectly and he immediately so advised Mr. Jones by telephone and told Mr. Jones that the Petitioner would have to complete the proper section of the form. The Respondent's School District's procedures are that "involuntary termination" is used for only three types of separation: (a) dismissal of an employee, (b) job abandonment by an employee, or (c) deletion of a position. A school principal does not have the authority to involuntarily terminate an employee or to fill out a form to that effect. The "involuntary termination" form was, therefore, a nullity and of no effect. That form was not processed by the district office staff and was never acted on by the School Board. Principal Jones told his school secretary of the error on the form and asked her to prepare a corrected form. The corrected form indicated that Petitioner was resigning and was not being involuntarily terminated. The corrected form was signed by the Petitioner and the Principal on March 14, 1986, and it was then processed by the district office. At its regularly scheduled meeting on April 15, 1986, the Respondent School Board acted on the Petitioner's resignation and accepted it in a routine manner. At the time the Petitioner signed the second form on March 14, 1986, she did not indicate to the Principal in any way that she had changed her mind about wanting to resign. If the Petitioner had objected and had not signed the resignation form, she would have remained employed by the Respondent. At any time prior to the School Board's formal approval of a resignation, an employee may withdraw a resignation. At no time prior to the School Board's action on April 15, 1986, did the Petitioner withdraw her resignation or notify Mr. Jones or any other representative of the School Board of any change of mind regarding her resignation. At the time of the Petitioner's resignation, no steps had been taken by Principal Jones, or by any other representative of the School District, to dismiss the Petitioner from her employment. At that time the possibility of dismissing the Petitioner had not even been discussed. The Petitioner applied for and was awarded unemployment compensation on the basis that she had resigned her employment for health reasons. It is the policy and practice of the Respondent to provide all employees with a written notice of deficiencies on a job performance warning record before any dismissal action is begun. It is also the Respondent's policy and practice that prior to initiation of dismissal proceedings, an employee's immediate supervisor takes steps to try to resolve any problem before referring the matter to the district supervisor. Employees are normally suspended with pay pending an investigation of the basis for proposed dismissal, and actual dismissal is only carried out by the School Board after the employee has been given an opportunity for a hearing. None of these things took place with regard to the Petitioner, because the School Board was not trying to and did not dismiss her. The Respondent has a policy of providing for grievances by its employees who believe they have been treated unfairly. The Petitioner did not file a grievance with the School Board.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is recommended that the complaint be dismissed for the reason that Petitioner did not meet his burden of demonstrating that the tenure decision reviewed herein was unlawfully reached. Respectfully submitted and entered this 28th day of May, 1976, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: President Cecil Mackey Office of the President University of South Florida Tampa, Florida 33620 David A. Maney, Esquire Gordon and Maney, P.A. Suite 2919, First Financial Tower Tampa, Florida 33602 D. Frank Winkles, Esquire Shackleford, Farrior, Stallings Evans First Financial Tower Post Office Box 3324 Tampa, Florida 33601
Findings Of Fact At all times material to these proceedings, Petitioner received his salary from two sources: the University of South Florida College of Medicine and the James A. Haley Veterans Administration Medical Center (Haley V.A.). As a special condition of his employment with the University, Petitioner also received a salary supplement which was derived through the College of Medicine Faculty Practice Plan. In consideration for the supplement, Petitioner agreed to assign all rights to fees or other compensation for medical services rendered by him during his employment term to the College of Medicine Faculty Practice Plan (Practice Plan). In spite of the wording of the employment contract with the University, Petitioner has never been expected to assign his salary from his position at the Haley V.A. to the Practice Plan. V.A. salary is excluded from the assignment process because of the relationship between the Haley V.A. and the University. The Haley V.A. is an institution that operates as a "Dean's Hospital". Essentially, this designation means that a V.A. Hospital and a College of Medicine in the same locale operate under a personnel and resource sharing policy. For example, if a surgeon is needed by both the Haley V.A. and the University, the two institutions will share in his or her appointment. The individual's salary is paid proportionately by each institution based upon their respective need for his or her services in a forty hour work week. The time is broken down into segments measured by eighths (8ths) known as full time equivalents (FTEs). A forty hour work week consists of 8/8 FTEs. The dual appointments of a physician under the sharing agreement customarily occur in the following manner: An advisory board known as the "Dean's Committee" at the College of Medicine recommends the dual appointment to the V.A. Hospital. The Professional Standards Board at the hospital evaluates the applicant after he or she has completed a separate application for employment with the Veterans Administration. Once a recommendation for appointment and salary level from the Professional Standards Board is received by the Medical Center Director, the applicant is either granted or denied the V.A. appointment. If an appointment occurs, the University then enters into an employment contract for the remaining FTEs with the physician. Although the two institutions work together and have parallel staffing in many of their Departments, each institution is responsible for hiring and managing its own employees. This autonomy is required because the institutions have different missions. The Petitioner accepted dual appointments to the University's College of Medicine and the Haley V.A. in 1979. His original appointments were for 5/8 FTEs as Staff Surgeon in Peripheral Vascular Surgery at the Haley V.A. and 3/8 FTEs as an Associate Professor of Surgery at the University. Petitioner's employment at the Haley V.A. began on June 1, 1979. His employment at the University began on September 1, 1979. Petitioner's clinical competence, research and development accomplishments, surgical skills and teaching abilities are unassailable in both institutions. The attempted attacks on these talents during hearing were ineffective. When Petitioner assumed his responsibilities at both institutions, he eventually became head of the vascular surgery program at the Haley V.A. and Director of the Division of Vascular Surgery with the College of Medicine, a parallel position. Although Petitioner's services were originally allocated as 5/8 FTEs to the Haley V.A., both institutions knew his career goals were always focused upon his teaching position at the University and his administrative responsibilities there as Director of the Division of Vascular Surgery. During his early years at both institutions, Petitioner's responsibilities at each facility grew and became more demanding. Petitioner naturally focused on his primary career goals at the University and delegated many of his V.A. responsibilities to extremely competent physicians under his direction. In 1986, the Chief of Surgery at the Haley V.A. took steps to enforce the required tours of duty for academic doctors with V.A. appointments. Audits at another Dean's Hospital had revealed that the academic staff there had been lax in fulfilling the time requirements demanded by their individual employment contracts. This administrator did not want a similar occurrence at his hospital. On November 16, 1986, the Chief of Surgery asked the V.A. doctors he supervised to sign an affirmation of intent to work the amount of hours required by their individual appointments. Petitioner signed the affirmation and acknowledged that he would work 50 hours at the Haley V.A. during every two week time period, in accordance with his 5/8 FTEs V.A. appointment. Petitioner was unable to meet these hourly requirements during the biweekly time allocations. He voluntarily reduced his V.A. appointment from 5/8 to 4/8 FTEs, effective May 8, 1988. After his V.A. appointment reduction, Petitioner was still unable to meet the biweekly time requirement of 40 hours at the Haley V.A. Administrators at the V.A. wanted him to be physically present in the hospital during the time he spent on V.A. matters. Petitioner believed he was unable to comply with this requirement because of his obligations at the University. As Director of Vascular Surgery, he was responsible for the vascular surgery portion of the Residency Program at the Bay Pines V.A. Hospital in St. Petersburg and the Tampa General Hospital in downtown Tampa. On June 15, 1988, the Acting Director of the Haley V.A. corresponded with the Chairman of the Department of Surgery at the University. The Chairman at the University was notified by letter that a decision had been made to terminate Petitioner's V.A. appointment. The anticipated termination date was July 16, 1988. A discussion with the Chairman regarding this matter was requested by the Acting Director at the V.A. The Chairman replied to this letter on June 28, 1988. He advised the Acting Director that he had placed the matter on the Surgery Mini-Dean's Committee meeting scheduled for July. Petitioner did not receive copies of the correspondence between the Acting Director at Haley V.A. and the Chairman of the Department of Surgery at the University. Petitioner was not aware of the discussions between the University and the V.A. regarding the further reduction of his FTEs at Haley V.A. On August 23, 1988, Petitioner was advised in writing that his salary for the 1988/89 academic year had been budgeted at $145,000.00. This figure included his salary from the Haley V.A., the State of Florida and other funds within the USF Department of Surgery which were derived through the College of Medicine Faculty Practice Plan. He was also approved to receive a salary supplement of $30,000.00 should his productivity and funds in the Division of Vascular Surgery allow for this additional amount. These additional funds would have come from profits made within the Division and assigned to College of Medicine Faculty Practice Plan, according to the usual operating procedure. On August 24, 1988, Petitioner was offered his tenured 3/8 FTEs at the University. The length of the appointment was from August 8, 1988 to August 7, 1989. His salary from the Florida Legislature funding lines was scheduled as $23,801.00. As a special condition of employment, he was advised that his salary may be supplemented with funds derived through the College of Medicine Faculty Practice Plan, in consideration of his agreement not to engage in patient case activities other than as a faculty member. Petitioner accepted the contract on September 1, 1988. On September 27, 1988, Petitioner was advised by the Chairman of the Department of Surgery at the University that the Haley V.A. wanted to make changes in his appointment at that institution. On November 21, 1988, the Chief of Staff at the Haley V.A., the Dean of the College of Medicine and the Chairman of the Department of Surgery had a meeting regarding Petitioner's 4/8 FTEs at Haley V.A. Petitioner was not aware of the meeting nor was he invited to attend. The chief of staff at the V.A. advised the University that he was going to ask Petitioner to resign 3/8 of his remaining FTEs at the V.A. effective December 4, 1988. If he had failed to agree, the action would be taken administratively. The Dean told the Chairman of the Department of Surgery that he would approve supplementing Petitioner's total salary from funds received through the College of Medicine Faculty Practice Plan. The Dean and the Chairman agreed to restore Petitioner to the salary level he would have received that academic year if he had not had 3/8 FTEs from the Haley V.A. removed from his compensation. Although a letter was sent to Petitioner requesting resignation of a portion of his FTEs, he did not resign his 3/8 FTEs on December 4, 1988. On December 5, 1988, his V.A. appointment was converted to an intermittent appointment of 1/8 FTE by the Director of the Haley V.A. The Dean of the College of Medicine authorized a salary adjustment for Petitioner at the University. Petitioner was to be paid a salary equaling the level of salary he had expected for the year prior to the V.A. action. This additional salary compensation was derived through the College of Medicine Faculty Practice Plan. During the 1988/89 academic year, Petitioner was allocated the same total amount of compensation from all sources after his V.A. FTEs were reduced because of the approved increase in his compensation from the College of Medicine Faculty Practice Plan. Petitioner filed a grievance against the University for the reduction of his V.A. FTEs on February 3, 1989. The grievance filed with the University has no basis in law or fact because the Haley V.A. has the right to reduce the FTEs of its own employees. When one of the parties to the "Dean's Hospital" personnel sharing policy decides it does not want to continue to assign a certain number of FTEs to an employee, the other institution does not have a concomitant responsibility to provide that employee with a forty hour work week. The shared employee has two separate employment contracts. Petitioner has been continuously aware that his employment at the Haley V.A. was separate from his employment at the University. In his Memorandum to the Chairman of the Department of Surgery dated October 3, 1988, he wrote: ". . . that any decision regarding changing (sic) in my appointment status with the V.A. is entirely their responsibility." After the Haley V.A. reduced Petitioner's appointment to an intermittent 1/8 FTE, he was required by the Chairman of the Department of Surgery to cooperate with the Haley V.A. in the establishment of its vascular lab. He was also instructed to assist in the assignment of shared lab technicians under the "Dean's Hospital" sharing agreement. These two tasks were part of his duties as Director of the Division of Vascular Surgery. A meeting between Petitioner, the Department Chairman and administrators from the Haley V.A. on February 1, 1989, did not bring about a resolution of the conflicts between Petitioner and the V.A. regarding the hospital's creation of its own vascular lab. The Chief of Staff at the Haley V.A. wrote a letter to the Chairman of the Department of Surgery and made a proposal regarding the proposed sharing agreement on the vascular lab directly to him. This letter was received by the Department of Surgery on February 14, 1989. On March 1, 1989, the Chairman of the Department of Surgery had a meeting with Petitioner. By way of memorandum dated March 1, 1989, Petitioner was directed by the Chairman to pursue activity that would lead to a resolution of the problems between his Division and the Haley V.A. In particular, Petitioner was directed to assist in the establishment of a vascular laboratory at that facility. He was given four weeks to demonstrate he was complying with these directives. He was also advised that if the Chairman did not have evidence that these directives were being followed, he would ask Petitioner to step down as the Director of the Division of Vascular Surgery. On April 27, 1989, Petitioner was informed by the Chairman of the Department of Surgery that he was being removed as Director of the Division effective May 1, 1989. The reason given for his removal was that the Chairman had not detected any significant resolution of the problems cited in the memorandum. On May 1, 1989, the Chairman took over the administrative duties of the Division. The Chairman of the Department of Surgery had the authority and discretion to remove Petitioner as Division Director. Petitioner filed his second grievance on May 18, 1989, to challenge his removal as Division Director. This grievance urges that his removal as Director was an improper action based upon the following: 1) His removal was an act of retaliation in response to his filing the earlier grievance; 2) The Chairman of the Department of Surgery was incorrect in his determination that Petitioner had not attempted to resolve his differences with the Haley V.A.; and 3) The action was unconstitutional in that it interfered with his academic freedom and freedom of speech. Petitioner's removal was not related to the filing of the first grievance. There was no evidence presented at hearing to demonstrate that Petitioner took affirmative steps to resolve the conflict with the Haley V.A. about the V.A. vascular lab after he was directed to do so by the Department Chairman. Petitioner's academic freedom and freedom of speech were not violated by the Chairman's directives issued to Petitioner in his role as an administrator. The directives were given because the Division of Vascular Surgery was not fulfilling its obligations under the sharing agreement between the two institutions. When the directives were given, the Chairman advised Petitioner that his faculty position would not be affected by his response or lack of response to these administrative directives. The controversy with the Haley V.A. about the creation of its own vascular lab was the only problem Petitioner was directed to cure to maintain his position as Director. Based upon that representation from the Chairman, the allegations about other misdeeds or misconduct are rejected as matters which are irrelevant and immaterial. Petitioner did not have contract, tenure or traditional academic rights in the administrative appointment as Director of the Division of Vascular Surgery. Division Directors within the Department of Surgery serve at the will of the Chairman. A reasonable explanation was presented for Petitioner's removal from his administrative position. There was just cause for the Chairman's action. Petitioner's perception that his removal from the directorship was a disciplinary action is without merit. It was an administrative decision predicated upon the University's need to comply with the sharing agreement. One of the main reasons Petitioner objected to the establishment of a vascular lab at the Haley V.A. was that the lab would compete with the University lab and reduce its income. This, in turn, would affect the budget of the Division of Vascular Surgery and the contributions it would be able to make to the College of Medicine Faculty Practice Plan. All of the money previously received in Petitioner's Division from the vascular lab work done on behalf of the Haley V.A. would remain in house. As a result, the salary supplements received by Petitioner through the College of Medicine Faculty Practice Plan, would decrease in amount. Petitioner actually received $145,000.00 in salary from the state funding line and the College of Medicine Faculty Practice Plan during the 1988/89 academic year. In negotiations regarding Petitioner's annual salary for the 1989/90 academic year, the Chairman of the Department of Surgery agreed to pay him a salary of $145,000.00. These funds were to be provided through state funds at 3/8 FTEs and funds derived from the College of Medicine Faculty Practice Plan. The Chairman had the discretion to disburse the Faculty Practice Plan funds in this manner. Petitioner relied upon the representation that he would receive $145,000.00 as his salary when he began the 1989/90 academic year at the University on August 9, 1989. A written employment contract for the 1989/90 academic year was not placed into evidence. In order to receive a salary of $145,000.00, Petitioner's state salary had to be supplemented monthly with $9,326.33 in Faculty Practice Plan funds. This occurred during the first quarter of the academic year. On September 22, 1989, the Chairman sent a written memorandum to Petitioner which advised him that an adjustment was being made to reduce the amount of money he received from the Faculty Practice Plan by $1,893.33 per month for the remaining three quarters of the 1989/90 academic year. This would amount to a salary reduction of $17,039.97. As his reason for the reduction, the Chairman cited the financial condition of the Division of Vascular Surgery and Petitioner's removal as Director. A third grievance was filed by Petitioner after he received the memorandum about his salary reduction. The Petitioner has continuously predicted that the Division's financial condition would suffer as a result of the loss of two vascular surgeons and the loss of the profits from V.A. vascular lab business that was formerly conducted at the University lab. Ordinarily, the Chairman has the discretion to adjust monthly salary supplements derived through the College of Medicine Faculty Practice Plan based upon the financial condition of a Division and its contributions to the Plan. This occurs because salary supplements are given to the medical faculty if they have contributed to the Practice Plan and the money is available. In this case, however, the Chairman had earmarked salary funds for Petitioner through the Plan. These funds were not a supplement, they were part of Petitioner's total salary compensation from the University. The College of Medicine chose to compensate Petitioner in this manner instead of using 8/8 FTEs provided by the State Legislature. The University has the right to decide how Petitioner's employment at the institution is funded. Petitioner is entitled to an additional $17,039.97 in salary compensation derived through the College of Medicine Faculty Practice Plan for the 1989/90 academic year.
Recommendation Based upon the foregoing, it is RECOMMENDED: The first grievance should be dismissed as the University lacks jurisdiction over the subject matter. The Chairman's decision to remove Petitioner as Director of the Division of Vascular Surgery in the second grievance should be upheld. Petitioner does not have a protected property interest in the position. Petitioner should be awarded $17,039.97 in salary pursuant to his employment contract with the University during the 1989/90 academic year. DONE and ENTERED this 19th day of November, 1992, at Tallahassee, Florida. VERONICA E. DONNELLY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of November, 1992. APPENDIX Petitioner's proposed findings of fact in his suggested Recommended Order are addressed as follows: Accepted. See HO #6. Rejected. Contrary to fact. See HO #1-#2. Rejected. Insufficient evidence. See HO #52. Accepted. See HO #8. Accepted. Rejected. Contrary to fact. See HO #29-#33. Accepted. Rejected. Contrary to fact. Accepted for the academic year 1989/90. See HO #49-#58. Rejected. Contrary to the evidence. See Conclusions of Law. Rejected. Contrary to fact. See HO #39 and #46. Rejected. Contrary to fact. See HO #32-#33, #39 and #40. Rejected. Contrary to fact and law. See HO #43-#44. Rejected. Contrary to fact. See HO #40. 15. Accepted 1988/89 and 1989/90. See HO #48 and #58. 16. Rejected. Contrary to fact. See Conclusions of law. Respondent's proposed findings of fact are addressed as follows: Current employment status beyond the scope of this hearing. Otherwise, accepted. See HO #6. Generally accepted. See HO #3-#5. Accepted. See HO #3. Accepted. Accepted. See HO #3. Accepted. See HO #6. Accepted. See HO #1. Accepted. Accepted. Rejected. Contrary to fact. See HO #49-#50. Rejected. Contrary to fact. See HO #22, #25 and #45. Accepted. See HO #20. Accepted. Accepted. Accepted. Accepted as to Division Directors. The rest is irrelevant. See HO #35. Accepted. Accepted. See HO #40. Accepted. Accepted. See HO #11. Accepted. See HO #13. Accepted. Rejected. Self serving and irrelevant. Petitioner was not required to defend against such allegations in this proceeding. See HO #7. Accepted. Rejected. Irrelevant. Petitioner was not required to defend against such allegations in this proceeding. See HO #7. Accepted. See HO #13. Accepted. See HO #14. Rejected. Hearsay. Irrelevant. See HO #5. Accepted. Accepted. See HO #23. Accepted. See HO #23. Accepted. Rejected. Immaterial. See HO #7 and #14. Rejected. Improper conclusion. Petitioner was not required to defend against such allegations in these proceedings. Accepted that Petitioner's V.A. FTE reduction was a V.A. decision. Accepted. See HO #5. Rejected. Irrelevant. See HO #22 and #24. Rejected. Irrelevant. See HO #22 and #24. Rejected. Contrary to fact. See HO #22 and #24. Accepted. See HO #25. Accepted. See HO #47. Accepted. See HO #5. Accepted. See HO #47. Accepted. See HO #47. Rejected as to causation. Not sufficiently established at hearing. Accepted. See HO #30. Accepted. See HO #32. Accepted. See HO #35 and #40. Rejected. Immaterial. See HO #7 and #42. Accepted. See HO #33 and #39. Rejected. Not established at hearing. See HO #7 and #42. Accepted. See HO #25. Rejected. Speculative. Rejected. Irrelevant. See HO #42. Rejected. Contrary to fact. See HO #49-#58. Rejected. Contrary to fact. See HO #49-#58. Rejected. Immaterial. See HO #42, #55-#56. Rejected. Immaterial. See HO #7 and HO #42. Accepted. See Conclusions of Law. Accepted. See HO #26. Accepted. See HO #36. Accepted. Accepted. See HO #55. Accepted. COPIES FURNISHED: Jeremy E. Gluckman, Esquire Gluckman & Newman, P.A. 100 Twiggs Street, Suite 220 Tampa, FL 33602 William M. Blackshear, Jr., Department of Surgery, MDC, Box 16 12901 North 30th Street Tampa, FL 33612 Thomas M. Gonzalez, Esquire Robin E. Greiwe, Esquire Thompson, Sizemore & Gonzalez 109 North Brush Street, Suite 200 Tampa, FL 33601 Joline Micelli-Mullen, Esquire University of South Florida 4202 E. Fowler Avenue Tampa, FL 33620 Bryan Burgess, General Counsel University of South Florida ADM Building 250 4202 Fowler Avenue Tampa, FL 33620-6250 Jeannette Abin Marcus, Clerk Univeristy of South Florida Administration, Room 250 Tampa, FL 33620-6250 Francis T. Borkowski, President University of South Florida Administration, Room 250 Tampa, FL 33620-6250 Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, FL 32399-0400
Findings Of Fact In September, 1970, Dr. Van Twyver was appointed Assist-ant Professor of Psychology by the University. The appointment was made in accordance with a contract which ran from September, 1970 through June, 1971. He was given a similar appointment for the academic year beginning September, 1971. Prior to the academic year beginning September, 1972, Dr. Van Twyver was promoted to the rank of Associate Professor (Complaining Party's Exhibit 8). Dr. Van Twyver received appointments as Associate Professor of Psychology for the academic years beginning in September, 1972, 1973, 1974, 1975 and 1976. Dr. Van Twyver also received several appointments to the same position for summer academic terms. Copies of the various appointments offered to and accepted by Dr. Van Twyver were received in evidence as Complaining Party's Exhibit 6. Prior to the appointment for the academic year beginning in September, 1976, each of Dr. Van Twyver's appointments was to tenure earning positions. The position covered by the appointment for the present academic year which commenced in September, 1976, is not a tenure earning position. Dr. Van Twyver's present contract provides that it is a terminal contract and will not be renewed. During his fifth year with the University (the academic year beginning September, 1974) Dr. Van Twyver applied for tenured status on the faculty. He was told by the Chairman of the Psychology Department that due to a change in policy he would not be considered for tenured status until his sixth year. During his sixth year (the academic year beginning September, 1975) Dr. Van Twyver again applied for tenured status. He submitted an application to the Department Chairman. The application was forwarded to the Department of Psychology Faculty Evaluation of Faculty Committee. The Committee was composed of five members. The members of the Committee originally voted unanimously in favor of recommending Dr. Van Twyver for tenure. The vote was based upon an evaluation in which areas of performance substantially equivalent to those itemized in Rule 6C-5.05(2) F.A.C. were considered. At a meeting of the Committee conducted on October 10, 1975, two members urged that Dr. Van Twyver and other tenure applicants be evaluated based upon an additional criterion, that being whether granting tenure would serve the best interests of the University. Dr. Burroughs who chaired the Committee indicated that Dr. Abbott, the Chairman of the Department, thought the additional criterion should be considered. The other members of the Committee rejected the argument, and at an October 15 meeting the Committee voted to recommend Dr. Van Twyver for tenure by a vote of three in favor and two abstaining. A copy of the Committee's final evaluation form dated October 15, 1976, was received in evidence as Complaining Party's Exhibit 2. The Committee considered Dr. Van Twyver acceptable or above acceptable in each of the categories evaluated other than in "research and other creative activities" in which he was rated outstanding. Dr. Van Twyver's application was next considered by members of the tenured faculty of the Department of Psychology. By a vote of four to one the tenured faculty voted against recommending tenure. The lone favorable vote came from Dr. Phillip Tell. The meeting at which the vote was taken was brief, lasting less than ten minutes, and matters other than Dr. Van Twyver's application were considered. Dr. Abbott, the Department Chairman, stated that the vote should be based upon a determination of whether granting tenure would serve the best interests of the University. Dr. Tell asked what was meant by "best interests of the University". Dr. Abbott answered by reading Paragraph G from the recommendation form utilized by department chairpersons in recommending granting or denying tenure or other promotions. Paragraphs A through E of the form set out criteria for evaluating an applicant which correspond with the criteria for evaluating faculty performance set out in Rule 5.05(2), F.A.C. Paragraph F of the form provides a space for recording the results of the tenured faculty vote. Paragraph G contains the following language: I (am, am not) satisfied that the nominee has met all of the criteria for (tenure, promotion) of this university and the Board of Regents, and that he/she (has, has not) demonstrated a high degree of competence in his/her professional field. I believe that granting him/her (tenure, promotion)(will, will not) serve the best interests of the institution and the State University System of Florida. I recommend that: ( )tenure ( )promotion to the rank of (be, not be) granted. The form then provides a space for comments and the chairperson's signature. Dr. Abbott expressed the view that the criterion "best interests of the institution" was apart from and in addition to the criteria for evaluation listed in paragraphs A through E of the form. The vote of the tenured faculty of the Department was based upon this interpretation as was Dr. Abbott's recommendation that tenure not be granted. A copy of Dr. Abbott's evaluation and negative recommendation for Dr. Van Twyver was received in evidence as Complaining Party's Exhibit 3. It cannot be determined from the evidence whether the tenured faculty would have voted in the same manner, or whether Dr. Abbott would have made the same recommendation if the criterion "best interests of the institution" had not been considered as additional to criteria set out in Paragraphs A through E of Complaining Party's Exhibit 3. It does appear that Dr. Van Twyver was considered at least satisfactory in each of those areas. It cannot be determined from the evidence why the tenured faculty voted against recommending tenure or why Dr. Abbott recommended against tenure unless it was for the reason that the concept of "best interests of the institution" was given some unknown interpretation and applied as an area to be evaluated apart from the other criteria. The college of Social Sciences Personnel Committee considered Dr. Van Twyver's application. By a vote of three to two it recommended in favor of granting tenure. The Personnel Committee's evaluation was received in evidence as Complaining Party's Exhibit 4. Charles N. Millican, President of the University decided against recommending to the Board Of Regents that Dr. Van Twyver's application for tenure be granted. His decision is set out in a letter dated March 19, 1976. Copies of the letter were received in evidence as Exhibit A to Hearing Officer's Exhibit 2 and to Complaining Party's Exhibit 1. President Millican set out the following as the basis for his decision: "A careful review of your file indicates that 80 per cent of the tenured faculty members in your Department voted against your tenure nomination, and in addition, your Department Chairman forwarded a negative recommendation. "The University President's decision was thus based upon the tenured faculty vote and Dr. Abbott's recommendation, both of which utilized the test of "best interest of the institution" as determinative. No evidence was presented at the hearing from which it could be determined that constitutionally impermissible criteria were applied to Dr. Van Twyver's application at any stage of the tenure application process. Dr. Van Twyver did not have an objective expectation of reemployment at the University at the time that he applied for tenured status or at any material time.
The Issue The issue for determination is whether Respondent's teaching certificate should be disciplined for alleged violation of various provisions of Section 231.28, Florida Statutes, and Rule 6B
Findings Of Fact Respondent Clayton McWilliams holds Florida teaching certificate number 653517, covering the area of substitute teaching, which is valid through June 30, 1994. He is 27 years of 1989, from Valdosta State College in Valdosta, Georgia. After a few brief months employment in retail sales in Tallahassee, Florida, Respondent returned to Madison, Florida, where he was born and lived prior to attending college. Respondent returned to Madison in August of 1989, after being contacted by the high school coach there regarding the possible employment of Respondent as an assistant coach at the high school from which Respondent graduated. He was employed in the 1989 County School Board. Subsequently, he was employed by the Board during the 1990 high school. Respondent served as an assistant coach during this period. While serving as a substitute teacher during the 1989 Respondent was responsible for a ninth grade science class. Female students M.B., R.B., J.D., and R.C., were in a group surrounding Respondent's desk, talking with Respondent. All the students in the group were curious about Respondent and asked him such questions as what are you going to coach, are you married, do you have a girl friend, and why did you come back to Madison? Respondent knew many of the students on a first name basis and, in the course of bantering with the group, responded at one point to the students' questions about his private life by asking the students about their social lives, if they kissed their boy friends with their mouths open, and if they used their tongues. There was general laughter from the students, although R.B. didn't think the question was "any of [Respondent's] business." This was the only question or comment that Respondent ever made that bothered R.B. R.B. regarded Respondent's conduct in the ensuing two years as "flirting" and "didn't ever think anything bad about it." The next year when R.B. was in the tenth grade (1990 photograph. Respondent later told R.B. that he stared at the photograph every night. When R.B. was in the eleventh grade and not a student in a class taught by Respondent, Respondent jokingly asked R.B. in the presence of D.C., her boyfriend at the time and an athlete with whom Respondent enjoyed a rapport, why she wanted to date such a "big, old dummy." There were other times that Respondent would see R.B., tell her that she looked nice, wink at her and blow her kisses. During the 1990 M.B., by asking her if she kissed with her mouth open, and would she teach Respondent how to do this. Respondent also told M.B. that she looked beautiful. M.B. was not a student in a class taught by Respondent. During the 1991-1992 school year, M.B. was a high school junior and a varsity cheerleader. Respondent continued to speak to M.B., although she was not his student, when he saw her on the school campus or at sporting events. He continued to ask M.B. about kissing with her mouth open, whether she would teach Respondent how to do this, and when could she teach him. M.B. declined to specify any time or place to meet with Respondent. M.B. did not disclose Respondent's behavior to anyone at this time. On one occasion, M.B. and other eleventh grade students, including her boyfriend, were in the high school library, ordering their class rings. Respondent became involved in conversation with the students and asked M.B. again about teaching him to kiss open would lose his job for M.B. Although he heard these comments, M.B.'s boyfriend considered Respondent to be joking. In the fall of the 1991 Wakulla County for a game which would determine whether the team could compete in the district championship playoff. Upon boarding the bus after the game for the trip home, Respondent was asked by M.B. if he was going to sit with her on the bus. He replied that he would if she saved him a seat. Respondent stored the athletic equipment which he was carrying, returned to the forward section of the bus and assumed the vacant seat beside M.B. Since the team had lost the game, most passengers on the bus were despondent. In the course of the trip, M.B. and Respondent leaned their heads against the back of the seat in front of them and Respondent talked about college and how being from a small high school had been difficult when he had attended the University of Florida before transferring to Valdosta State. Respondent had his hands between his knees as he talked and at one point placed it on M.B.'s knee or patted her knee. She, feeling discomfited by the gesture, brushed his hand away. This was the only time that Respondent touched a student where such touching was interpreted by a student to have sexual significance. Respondent testified that he patted M.B. because she acted as though "something had been bothering her" and characterized the pat as something he would give "football players or baseball players at school." Eventually, M.B. became sleepy and rested her head against the bus window. Respondent in a normal tone of voice offered to let her place her head on his shoulder, but M.B. declined. During the 1991 photographs. On the back of his photograph, Respondent wrote: M., I remember when I first saw you, you struck me as beautiful. I really think you are. You are truly special to me. Please know that I love you. Stay sweet and pretty. Love, Clayton. P.S., Please teach me sometime. Mary Rice, a teacher at the high school, began teaching there at approximately the same time as Respondent. Rice, like Respondent, was single. Rice, like Respondent, enjoyed informal relationships with some students, such as the cheerleaders for whom she served as staff sponsor. The cheerleaders, similar to many students who called Respondent by his first name, referred to Rice as "Mary". She became engaged in October of 1991 to Scott Alley, another teacher who occasionally substituted at the school. Rice and Respondent had a normal collegial relationship. Prior to Christmas of 1991, Rice and Respondent were in the school office discussing what they were getting their significant others for Christmas. Respondent told Rice that he would tell her what he was getting his girl friend for Christmas if Rice would have sex with him. Later in the day, Respondent got down on his knees in the hallway outside of Rice's classroom in the presence of students and asked Rice to "go with me before you get married". While Respondent meant that he wanted to have sex with Rice, he did not explicitly state such in the hallway. Later, Respondent sent Rice a note containing four blanks for letters. According to Rice, the note stated that Respondent would tell Rice what he was getting for his girlfriend for Christmas if Rice would " ". Rice assumed the four blanks to represent a sexually suggestive word. Rice stored the note in her desk drawer. She determined not to tell anyone about the note. In February of 1992, her fiancee, Scott Alley, discovered the note in the desk while he was substituting for Rice. He showed the note to Debra Wetherington, a school secretary, and later asked Rice about the note. Rice was startled that Alley had found the note and became upset. Later, in a telephone conversation initiated by Respondent, he discussed the note with Alley. Respondent apologized to Alley for any misunderstanding about the note, stating that he had written it merely to get a laugh from Rice. Respondent told Alley that he, Respondent, just flirted with everyone and that was "how I broke the ice with everyone." After Respondent's apology, the two men agreed to remain friends. Subsequently, the note was destroyed by Alley. Debra Wetherington, the secretary at the high school, frequently interacts with the teaching staff. Initially, Respondent and Wetherington enjoyed a good working relationship no different than those she shared with other teachers. She had known Respondent all of his life. Over a period of time, Respondent began to flirt with Wetherington, asking her about open mouth kissing. At these times, Wetherington ignored his remarks or laughed them off as a joke. When his behavior persisted, she told him that his conduct bothered her and that he should stop. She never told her husband or any one else about Respondent's attentions, hoping to resolve the matter without confrontation and embarrassment. On or about February 25, 1992, Respondent came into the school office and physically put his arms around Wetherington in a "bear" hug and, according to Wetherington, tried to put his tongue in her ear. Also present in the room were the school resource officer and another office worker. No eyewitness corroboration of Wetherington's allegation that Respondent attempted to put his tongue in her ear was offered at the final hearing and she had not reported this detail in an earlier affidavit regarding the incident. Respondent denies he attempted to put his tongue in her ear. Respondent's testimony is more credible on this point and it is not established that he attempted to put his tongue in Whetherington's ear. Wetherington later complained about Respondent's conduct to Lou Miller, the school principal. Miller called Respondent into her office, discussed the incident with him, and directed him to have no such contact with Wetherington in the future. Respondent apologized for his conduct, both to Miller and Wetherington. While Respondent and Wetherington had no further contact, Wetherington later asked another teacher, Tony Stukes, if Respondent was angry with her since she had not seen or heard from him lately. On or about March 24, 1992, Respondent saw M.B. in the hallway outside the door of his classroom while classes were changing. Respondent spoke to M.B. and told her that he had a dream about her. M.B. went to see Mary Rice, the cheerleading sponsor, who had earlier asked M.B. if she was having any problems with a teacher. Rice had taken this action following the discovery of Respondent's note in Rice's desk by Rice's fiancee. M.B. had confided in Rice about Respondent's previous flirtatious behavior toward her. Rice told her to write down future incidents. After relating to Rice the comment of Respondent about having a dream, M.B. was asked by Rice to go back to Respondent and find out more about the dream. M.B. went into Respondent's class where the students were working on a geography project. An overhead projector displayed the continent of South America on a board. Some students were tracing the projection on the board, preparatory to cutting the shape out of the board. Other groups were cutting out other continents. The lights in the room were turned on. Respondent was sitting at his desk, cutting out the Asian continent. M.B. went to a chair by Respondent's desk and sat down. M.B. was on her lunch break and was not a student in the class. However, in the context of the situation, her entry into the classroom was not that unusual. Respondent had on previous occasions entered an art class where M.B. was a student and had spoken with her or, on some of these occasions, had also spoken with the teacher in the class. After seating herself by his desk, M.B. asked Respondent to tell her about his dream. Respondent replied that he couldn't, but M.B. persisted. Finally, Respondent wrote on a piece of paper, "I had a dream about you and me." M.B. then wrote on the paper, "Well, what happened?" The rest of the written exchange is as follows: Respondent: "Well, all I remember is you were teaching me." M.B.: "Teaching you what?" Respondent: "Guess." M.B. "I don't know. Why don't you tell me what I was supposedly teaching you." Respondent: "How to kiss with my mouth open. I liked it, too. I woke up sweating and holding my pillow to my mouth." M.B. then took possession of the piece of paper on which she and Respondent had been writing, left the class and went back to see Mary Rice. M.B. discussed the matter with Rice. After this discussion, M.B.'s feelings about Respondent solidified and she determined that she detested Respondent. At Rice's suggestion, she then went to see Principal Miller. Miller and School Superintendent Eugene Stokes confronted Respondent with the note. Respondent stated he meant no harm by his conduct, recognized that he had a problem and needed help for his aberrant behavior. After a discussion of options, including suspension or resignation, Respondent thought about the matter overnight and submitted his resignation to Stokes on March 27, 1992. Respondent was told that the matter must be reported to the Professional Practices Commission. Respondent was, however, under the impression that his resignation would conclude the necessity for any further proceedings of a disciplinary nature. Until the time of his resignation, Respondent had received good evaluations. His contract was renewed annually. However, as expressed at final hearing by Miller and Stokes, they would not rehire Respondent in view of his past behaviors which now, in their opinion, would reduce his effectiveness as a teacher at Madison High School. Subsequently, Respondent was informed on May 28, 1992, that an investigation regarding alleged misconduct been instituted by the Professional Practices Commission. In August of 1992, Respondent sought and was appointed to a teaching position in Hawthorne, Florida, at the combined junior/senior high school in that city for the 1992 completion of course work for issuance of a five year teaching certificate from the State of Florida which he received in October of 1992. Dr. Lamar Simmons, the supervising principal at the school in Hawthorne, Florida, where Respondent is presently employed is acquainted with Miller. Simmons contacted Miller at the Madison High School, prior to employing Respondent. Miller informed Simmons that Respondent had been a satisfactory employee. Miller did not disclose Respondent's alleged misconduct to Simmons because she assumed Respondent was receiving professional help for his problem and that the issuance of Respondent's five year certificate indicated that further disciplinary proceedings by the Professional Practices Commission had been abandoned. Respondent later disclosed the instant disciplinary proceeding to Simmons. To date of the final hearing, Respondent continues to teach at the school in Hawthorne without apparent incident.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered finding Respondent guilty of the third, fourth, and fifth count of the Administrative Complaint, and placing Respondent's teaching certificate on probation for a period not to exceed three years upon reasonable terms and conditions to be established by Petitioner, including the following requirements: That Respondent present himself for psychological evaluation by a qualified professional selected by Petitioner. That Respondent complete such course of psychotherapy as may be prescribed as a result of that evaluation. That Respondent assume the cost of such evaluation and subsequent therapy, if any. That Respondent enroll and complete a minimum of six hours of continuing education courses in the area of professional conduct for educators. That in the event that Respondent fails to comply with any of the terms and conditions of probation, Respondent's teaching certificate shall be subjected to a period of suspension not to exceed two years, and that compliance with these conditions of probation serve as the prerequisite for any reinstatement of Respondent's teaching certificate in the event that suspension for noncompliance with these conditions occurs. DONE AND ENTERED this 1st day of June 1993, in Tallahassee, Leon County, Florida. DON W. DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of June, 1993. APPENDIX In accordance with provisions of Section 120.59, Florida Statutes, the following constitutes my specific rulings on proposed findings of fact submitted by the parties: Petitioner's proposed findings 1.-12. Accepted. Rejected as to D.C.'s feelings, hearsay. Accepted. (Note: this is the second finding numbered 13.) Rejected as to "two or three times", accepted as to touching on the knee one time, on the basis of resolution of credibility on this point. (Note: this is the second finding numbered 14.) Accepted. Accepted in substance, not verbatim. 16.-18. Accepted. Rejected as to tickling reference since no sexual significance was ascribed by M.B. to this action, she did not supply a point in time when this occurred and inclusion would imply a significance not proven at the final hearing. Rejected, unnecessary. 21.-23. Rejected, subordinate to Hearing Officer findings on this point. 24.-42. Accepted, but not verbatim. 43. Accepted as to bear hug, remainder rejected on basis of creditibility. 44.-57. Accepted, but not verbatim. Respondent's proposed findings 1.-20. Accepted, but not verbatim. 21. Rejected, unnecessary. 22.-23. Accepted, but not verbatim. Rejected, unnecessary. COPIES FURNISHED: Margaret E. O'Sullivan, Esquire Department of Education 352 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Thomas E. Stone, Esquire Post Office Box 292 Madison, Florida 32340 Karen Barr Wilde Executive Director Education Practices Commission 301 Florida Education Center 325 W. Gaines Street Tallahassee, Florida 32399-0400 Jerry Moore, Administrator Professional Practice Services 352 Florida Education Center 325 W. Gaines Street Tallahassee, Florida 32399-0400 Sidney H. McKenzie, Esquire General Counsel Department of Education The Capitol PL-08 Tallahassee, Florida 32399-0400
The Issue Whether or not the Petitioner, Joseph E. Sedlak, is entitled to the restoration of any rights and privileges previously enjoyed, which have been removed as the result of the Respondent, University of North Florida's, notice of non-renewal of the Petitioner's contract beyond June 15, 1977, and whether or not the Petitioner is entitled to renewal of his contract with the Respondent beyond June 15, 1977.
Findings Of Fact This cause came on for consideration based upon the com-plaint filed by the Petitioner, Joseph E. Sedlak, dated July 9, 1976, as amended March 29, 1977. The answer to the amended complaint was filed by the Respondent, University of North Florida, April 15, 1977. The Complainant/Petitioner is a duly appointed employee and faculty member of the University of North Florida, who initial employment commenced on December 16, 1974. On June 2, 1976, Dr. Robert M. Siudzinskl, Chairman of the Department of Special Education, College of Education, University of North Florida, conducted an annual evaluation of Use Petitioner, Dr. Joseph E. Sedlak, a member of the faculty of the Department of Special Education. During the course of the annual evaluation process, Dr. Siudzinski told Dr. Sedlak that he had made the decision to recommend that Dr. Sedlak's contract as an employee with the University of North Florida not be renewed after June of 1977. This statement was made to Dr. Sedlak following a discussion between Dr. Siudzinski and Dr. Sedlak concerning the annual performance evaluation of Dr. Sedlak, as accurately summarized in Petitioner's Exhibit #54, admitted into evidence. Dr. Siudzinski then read from the Academic Personnel Policies and Procedures of the University of North Florida, Chapter XI-25 and 26, which states: "... the recommendation not to renew a non- tenured faculty member will originate with the Chairman of the department and be concurred in by the Dean of the College and Vice President and Dean of Faculties." After this Dr. Sedlak was informed by Dr. Siudzinski that Dr. Siudzinski had conferred with the President, Vice President and Dean of Faculties, and the Dean of the College of Education at the University of North Florida and they had concurred with his decision and had authorized Siudzinski to recommend non-renewal. (The excerpts of the University of North Florida Academic Personnel Policies and Procedures, Chapter XI are found as Petitioner's Exhibit #60, admitted into evidence.) It is unclear whether Dr. Siudzinski did in fact confer with the President and gain his concurrence with the decision and authority to recommend non-renewal; however, there were some conferences between Siudzinski and Vice President and Dean of Faculties and the Dean of the College of Education. These individuals concurred with the decision and authorized Siudzinski to recommend the non-renewal of Dr. Sedlak's contract of employment with the University of North Florida. At that time the Vice President and Dean of Faculties was Dr. Roy L. Lassitor and the Dean of the College of Education was Dr. Andrew Robinson. Dr. Siudzinski, in the course of the conference with Dr. Sedlak on June 2, 1976 stated his reasons for recommending non-renewal. Those reasons were: Failure to cooperate with the Department Chairman. Failure to respond to the assistance quarter in amanner that benefited the Department. Unprofessional behavior during the assis tance quarter. Failure to contribute to the Department functioning commensurate with his rank (Reference was made to Dr. Sedlak's work on the 'Discrepancy Model.')" Finally, Dr. Siudzinski read from the University of North Florida Academic Personnel Policies and procedures, Chapter XI-26 and 27 which states: "prior to the transmission of the notice of non- reappointment, the University Officer initiating such action shall confer informally with the faculty member and explain the reasons for non-reappointment. The faculty member may request a written statement of reasons for non- reappointment within ten days after receiving the written notice. The request shall be in writing and the reasons shall be provided within ten days after the submission of the request. The notice of non-reappointment shall state in it the expiration date of the current contract and the effective date of termination and it shall indicate that the faculty member may appeal to the Committee on Rights and Responsibilities if he feels that the action is based on constitutionally impermissible grounds or to the President for review of the non-renewal decision when constitutional issues are not involved." Between June 2, 1976 and June 10, 1976, Dr. Roy Lassiter met with Dr. Sedlak and discussed, among other things, Dr. Sedlak's qualifications to remain on the faculty at the University of North Florida. Somewhere in this time period there was a discussion between Dr. Andrew Robinson and Dr. Sedlak, in which Dr. Robinson indicated that he concurred with the reasons which Dr. Siudzinski had given for the recommended non-renewal of Dr. Sedlak's contract, based upon Siudzinski's documentation and Siudzinski's reasons. On June 10, 1976, Dr. Thomas G. Carpenter, President of the University of North Florida, wrote to Dr. Sedlak recounting the conference of June 2, 1976, between Dr. Siudzinski and Dr. Sedlak, that informally notified Dr. Sedlak of the fact that his contract would not be renewed after June 15, 1976. The letter of Dr. Carpenter also indicated that formal notification of the action of non- renewal was being mailed June 10, 1976. Dr. Carpenter's letter further indicated that a new contract would be given to Dr. Sedlak effective June 16, 1976, for a contract year of 1976-77. (This letter had been prepared for Dr. Carpenter's signature by Dr. Lassiter, who is the delegated authority in matters of non-renewal of a non-tenured faculty member, in accordance with University of North Florida Academic Personnel Policies and Procedures, Chapter XI-25.) As Dr. Carpenter promised, formal notification of non-renewal of Dr. Sedlak's contract of employment was mailed from Dr. Robert M. Siudzinski, Chairman of the Department of Special Education, June 10, 1976. A copy of this letter of non-renewal is Petitioner's Exhibit #51, admitted into evidence. This letter served as official notification from the President of the University of North Florida, through his designee, Dr. Robert Siudzinski that Dr. Sedlak would not be appointed to the faculty of the Department of Special Education after June of 1977. The Siudzinski letter established that the current contract for the 1976-77 academic year would officially terminate on June 15, 1977. The letter stated that Dr. Sedlak could request a statement of reasons for the non- renewal within ten days of the date of receipt of the letter. The letter also attached the rules of the Board of Regents regarding the filing of grievances regarding non-renewal of contract. The letter went on to state that any grievance which Dr. Sedlak wished to file must be filed with the University President within 20 days after receipt of the letter, in accordance with quoted provisions. These provisions are drawn from the Chapter 6C-5.08(4)(c)5., Florida Administrative Code, which states: "any faculty member who deems himself aggrieved because of the recommendation that his contract of employment not be renewed and alleges (1) that the recommendation is based on constitutional impermissible reasons or (2) that it violates his property rights or (3) that it is not in compliance with written standards, criteria, or procedures prescribed by the Board of Regents or University regulations made within twenty days after receipt of the notice of non-renewal initiate his grievance by filing with the President, a complaint conforming to the requirements of paragraph (a) of Subsection (3) of this rule." Dr. Sedlak wrote a letter of June 14, 1976, to Dr. Siudzinski requesting a statement of reasons for non-renewal. This letter was responded to on June 22, 1976, in a letter by Dr. Siudzinski which stated four reasons for non-renewal of the contract. Those reasons being: "1. Failure to cooperate with the Department Chairman. Failure to respond to the assistance quarter in a manner that benefited the Department. Unprofessional behavior. Failure to contribute to the Department programs commensurate with rank and expectations at the time of initial appointment." Subsequent to the receipt of a statement of reasons, Dr. Sedlak filed his original letter of complaint of July 9, 1976. In accordance with Chapter 6C-5.08(4)(c)6., Florida Admin-istrative Code, Dr. Carpenter requested of Dr. Minor H. Chamblin, Acting Chairperson of the Faculty Grievance Committee of the University of North Florida, that an investigation be made of the complaint filed by Professor Sedlak in his July 9, 1976 letter. A copy of the report of that investigation may be found as Petitioner's Exhibit #59, admitted into evidence. The investigation did not lead to the resolution of the complaint of Dr. Sedlak, as indicated by the ongoing proceedings. The underlying facts involved in the dispute over the non-renewal of Dr. Sedlak's contract, began with the initial interview for employment which was conducted by Dr. Siudzinski. It was Dr. Siudzinski's contention in his testimony given in the course of the hearing, that Dr. Sedlak was told in the employment interview, that the University of North Florida program in Special Education was designed to have students obtain competencies in their field, meaning that the program at the University of North Florida was a competency based program. Moreover, Dr. Siudzinski contended that he told Dr. Sedlak that behavior modification was a strong part of the University of North Florida program and that he felt that Dr. Sedlak was weak in the behavior modification area and needed to improve. Dr. Siudzinski testified that he told Dr. Sedlak these things, notwithstanding the fact that Dr. Sedlak was hired to teach coruses other than behavior modification courses. Dr. Siudzinski indicated in his testimony that Dr. Sedlak was encouraged to sit in on Dr. Siudzinski's behavior modification course as an aid to Sedlak's achieving competency in the area. In opposition to this statement, Dr. Sedlak's testimony in the hearing indicated that he assumed his duties as a teacher at the University of North Florida, following initial interviews, but these interviews did not include a discussion of the necessity that he, Dr. Sedlak, have a competency in behavior modification. He said, as indicated by his vita filed with the University of North Florida at the time of his employment, Dr. Sedlak had never taken courses in behavior modification, and according to Dr. Sedlak those courses were not required as a prerequisite to his employment at the University of North Florida. Dr. Sedlak stated that at the initial interview there was no discussion of the philosophy of the Department of special Education at the University of North Florida, nor did Dr. Siudzinski tell him that he was expected to get a competency in behavior modification. Finally, in the discussion of the question of the necessity for competency in behavior modification at the employment stage, several other members of the faculty of the Department of Special Education, University of North Florida, offered testimony. One of those witnesses was Clement Van Nagel who testified that he had been hired to teach behavior modification and the policy that behavior modification competency was necessary had been discussed at faculty meetings which Dr'. Sedlak attended. Another faculty member in the Department of Special Education, Thomas Serwatka, testified in the hearing and stated although he was not told that he would be required to teach behavior modification, he was told by Dr. Siudzinski that. The Department of Special Education was competency based and that it was behavioral in its orientation and Siudziriski wanted to know if Serwatka had a background in behavior modification. Another faculty member in the Department of Special Education who testified was Mary D' Zamko. Mrs. D' Zamko testified that when she was hired she was expected to have a competency in behavior modification and that to her knowledge other faculty members were held to the same standard of competency. She also indicated that this expectation was made clear in the staff meetings in which Dr. Sedlak was in attendance. Finally, Robert Gonzales, a member of the faculty of the Department of Special Education, testified that when he was hired that there was an expectation that he have a competency in behavior modification. From the testimony offered in the course of the hearing it is established that Dr. Siudzinski apprised Dr. Sedlak of the expectation that Dr. Sedlak have a competency in behavior modification to be a member of the faculty at the University of North Florida and it is further established that this requirement was enunciated at intervals during the course of faculty meetings at the University of North Florida which Dr. Sedlak attended. Petitioner's Exhibit #9, is a composite exhibit which was admitted during the course of the hearing. This exhibit contains a letter of December 9, 1974, from Dr. Siudzinski setting out the period of appointment of Dr. Sedlak as Associate Professor of Education effective December 16, 1974, for a period to run through June 30, 1975. This letter sets out the major duties which Professor Sedlak was expected to perform. Professor Sedlak accepted the contract and appropriate administrative officials approved the hiring. From the time of the initial employment up to and including the date of the annual evaluation, which was held on June 3, 1975, nothing of any significance occurred. The annual evaluation of Dr. Sedlak's performance was conducted by Dr. Siudzinski on June 3, 1975. Prior to that date Dr. Sedlak was recommended for appointment for the summer quarter of 1975 effective June 23, 1975, as shown by Petitioner's Exhibit #14, admitted into evidence. Dr. Sedlak was approved for that quarter. In the evaluation session of June 3, 1975, mention was made of a problem which Dr. Siudzinski felt that Dr. Sedlak had in understanding, a so called "Discrepancy Evaluation Model." Dr. Siudzinski felt that from his observation of Dr. Sedlak's performance in instructing on this model, that Dr. Sedlak did not have a satisfactory understanding of it. Petitioner's Exhibit #15, admitted into evidence is a memorandum of June 5, 1975 dealing with the problem of Sedlak's understanding and his contribution to the underlying project. The fo1low up of the June 3, 1975 evaluation conference is found in a memorandum of June 5, 1975, which is Petitioner's Exhibit #15, admitted into evidence. In addition a memorandum was filed to the folder of Dr. Sedlak, dated June 27, 1975, from Dr. Siudzinski. A copy of this memorandum is Petitioner's Exhibit #17, admitted into evidence and the exhibit shows that Dr. Sedlak was recommended for reappointment for the year 1975- 1976. A copy of the offer of reappointment is found in Petitioner's Exhibit #19, admitted into evidence. This is an August 1, 1975, letter from Dr. Siudzinski indicating that the period of employment is from September 15, 1975 through June 15, 1976. Dr. Sedlak accepted this employment. Other action taken on the Petitioner's employment in 1975 would include a recommendation from Dr. Roy L. Lassiter, Jr., Vice President and Dean of Faculties, that Dr. Sedlak be given credit toward tenure at the University of North Florida for service at other institutions of higher education. This letter is in the form of a recommendation and a copy of the letter is Petitioner's Exhibit #21, admitted into evidence. The next notable event occurred in October or November of 1975, when an unidentified number of students objected to Dr. Siudzinski that Dr. Sedlak had assigned tests in his courses and not given those tests; to be followed by a period in which a group of tests were given to the students at one sitting. It is not clear that these complaints were made known to Dr. Sedlak and no official indication of these complaints was placed in the departmental file kept on Dr. Sedlak. In January, 1976, under a grant program, members of the faculty of the Department of Special Education, University of North Florida conducted a series of workshops on the subject of the aged. One of these workshops was conducted in St. Augustine, Florida on January 24, 1976. A part of the program was presented by Dr. Sedlak and Dr. Siudzinski observed part of the presentation. According to Dr. Sedlak, in a debriefing session Dr. Siudzinski indicated that he felt that certain of the information was irrelevant and counter to the behavioristic philosophy of the Department, to which Dr. Sedlak stated he protested and indicated that he had taught what was in the prescribed textbook. Dr. Sedlak testified that the subject then turned to Dr. Siudzinski's question of him, whether Sedlak had told anybody else about an incident which he had seen between a student and Siudzinski. Sedlak testified that the incident spoken of referred to Siudzinski being seen by Sedlak embracing and kissing a student, whom Sedlak knew. Sedlak claimed that he told Siudzinski that this incident was none of Sedlak's business and that he had said nothing. The subject, per Sedlak's testimony, then turned to whether Sedlak would be at the University of North Florida next year and Siudzinski supposedly said he really didn't know if Sedlak would fit in. The "incident" spoken of was supposed to have occurred a couple of weeks before this conversation. Siudzinski's version of the workshop debriefing was that he criticized Sedlak for being at variance with the purpose of the workshop, in that Sedlak was labeling matters and not dealing in the observable and measurable. Moreover, Siudzinski testified that some of the things that Dr. Sedlak was dealing in were contrary to what was being said by others participating in the workshop. Siudzinski claims he then brought up a complaint by a student which had been relayed through a secretary in the office of the Department of Special Education. Sedlak, by Siudzinski's statement, was kidding the student by saying that he had seen Siudzinski parked in front of her house. This was the total account of the January 24, 1976 debriefing, from Siudzinski's point of view. Dr. Siudzinski denies any incident in which he embraced a student or kissed a student. The subject was brought up again on January 27, 1976, after Siudzinski had attended one of Dr. Sedlak's classes for an hour and a half and spoke with him about the teaching. During the course of that conversation, Sedlak accused Siudzinski of "being on his back" and a heated argument ensued. Sedlak claims Siudzinski admitted being on his back about the so called "incident" with the "student" and Siudzinski claims that Sedlak told him that he would smear his, Siudzinski's name and family, so that he could not hold his head up in the community. Siudzinski said that he responded to this statement by asking Sedlak to resign. Another subject which was brought up on January 27, 1976, during the course of the discussion of the class, was Siudzinski's inquiry as to why Sedlak was teaching the I.T.P.A. tests, which Siudzinski thought was Inappropriate, by Sedlak's testimony. Dr. Siudzinski did not testify on whether he commented on teaching the I.T.P.A. or not. He simply said that he found some good things and some bad things in Dr. Sedlak's teaching. After the discussion of January 27, 1976, Dr. Siudzinski called Dr. Lassitor the next morning and told Dr. Lassiter of his concern about the accusations which Dr. Sedlak had placed against him on the subject of the student incident. Dr. Siudzinski observed another of Dr. Sedlak's classes on January 28, 1976. About this time period, Dr. Siudzinski prepared a first draft of a document entitled Discrepancy Evaluation Model Competencies which he intended to evaluate Dr. Sedlak on. Petitioner's Exhibit #24 is this document. In addition, Dr. Siudzinski submitted as a part of a memorandum of February 2, 1976, certain competencies in the behavior modification area which he expected to evaluate Dr. Sedlak on. The copies of this memorandum and the evaluation on behavior modification are found as Petitioner's Exhibit #25, admitted into evidence. These items found as Petitioner's Exhibits #24 and #25 were provided for Sedlak. These discussions mentioned above, between Dr. Sedlak and Dr. Siudzinski, were continued on February 5, 1976. On February 6, 1976, a meeting was held between Dean White, the then Dean of the College of Education, University of North Florida; Dr. Andrew Robinson; Dr. Siudzinski and Dr. Sedlak with the idea of trying to reconcile the differences between Dr. Siudzinski and Dr. Sedlak. The meeting also had as a topic of discussion, the propriety of requiring Dr. Sedlak to demonstrate his competency in behavior modification and the subject of the discrepancy evaluation model. There is a memorandum of February 9, 1976, indicating that there was a conversation between Professor Sedlak and Siudzinski. This memorandum is Petitioner's Exhibit #27, admitted into evidence. Dr. Sedlak does not recall this conversation and Dr. Siudzinski offered no testimony about it. A meeting was held February 10, 1976, between Dean White, Dr. Robinson, Dr. Sedlak and Dr. Siudzinski in which Dean White and Dr. Robinson suggested that If Dr. Sedlak had a complaint to make about Siudzinski's morals or behavior, he should state them. Sedlak's reply was that he had noting to say at that time. Dr. Robinson recalls that other subjects in the conversation were the question of Dr. Sedlak's competency in behavior modification and the possibility of offering an assistance quarter to improve Dr. Sedlak's knowledge of behavior modification. Siudzinski was to go back and think about what to do on the subject of the assistance quarter. In this same time frame there were several conversations between Dr. Siudzinski and Dr. Lassiter concerning Dr. Sedlak's performance and Dr. Lassiter had indicated that he thought that perhaps an assistance quarter was a proper aid, even though the matter concerned Dr. Sedlak's qualifications as opposed to his teaching skills. This subject of an assistance quarter was also discussed between Dr. Lassiter and Dr. Robinson at about this time. A meeting was held on February 13, 1976, between Dr. Siudzinski and Dr. Sedlak. A memorandum which summarized the results of that meeting is Petitioner's Exhibit #29, admitted into evidence and made a part of the record herein. This particular meeting was an evaluation session in which Dr. Siudzinski discussed one of the courses which Dr. Sedlak was teaching, to wit, EEC 604. He also mentioned the S.E.P.A. program audit which Sedlak was to participate in. Discussion was entered into about remedying the deficiency in behavior modification, which Dr. Siudzinski felt that Dr. Sedlak had. Suggestions offered were; taking a class and peer evaluation. The Discrepancy Model of Evaluation was also discussed and Dr. Siudzinski removed Dr. Sedlak from that project. The removal occurred because Dr. Siudzinski had talked to Professor D'Zamko and come to the conclusion, based on that conversation and his own observations, that Sedlak did not understand the project sufficiently and was not providing equitable participation with D'Zamko. Dr. Sedlak had not boon privy to the conversation between D'Zamko and Siudzinski. Dr. Sedlak complied with the request pertaining to EEC 604 and apparently complied with the request pertaining to the S.E.P.A. program audit. On February 27, 1976, a memorandum which is Petitioner's Exhibit #32, was sent from Dr. Siudzinski to Dr. Sedlak requesting an appointment between the two. Dr. Sedlak did not respond to the memorandum and a memorandum of March 8, 1976 was sent as a follow up requesting a meeting. This memorandum, Petitioner's Exhibit #33, admitted Into evidence, specifically sets out the topic of the meeting. One of the topics of the meeting, which was conducted on March 10, 1978, concerned the efforts which Dr. Sedlak had taken to cover one of his class sessions, EEC 604. The form that was filled out to have a sub-stitute teacher showed the wrong date. The form additionally indicated that Dr. Van Nagel would conduct the entire class, which was not possible since Dr. Van Nagel had a scheduling conflict for the first two hours of the four hour session, which was to be the length of time of Dr. Sedlak's class on that occasion. Dr. Sedlak had requested Dr. Cathy Hartman, another member of the faculty, to cover the first part of the class, and this was not reflected on the form. Dr. Hartman was unable to cover the class and this knowledge was only made known at 5:00 P.M. the day before the class session. The first part of the class to be covered was one in which a test was given to the students. Dr. Siudzinski took over that portion of the class and found the test instrument was not fair to those persons who did not have miniature calculators and the substance of the test was not acceptable in his view. A summary of the evaluation session of March 10, 1976, is Petitioner's Exhibit #34, admitted into evidence and made a part of the record herein. Dr. Siudzinski requested that he be provided with the test instruments involved in the EEC 604 course. One of the test instruments was the one given by Dr. Siudzinski and is Petitioner'S Exhibit #35, admitted into evidence. Of the remaining test instruments, one or more were never provided to Dr. Siudzinski. Dr. Sedlak's explanation was that some of the tests had been destroyed and some of the tests were found subsequent to the time that he was removed from the Department of Special Education. Another subject in the evaluation session of March 10, 1976 was the discussion of behavior modification. No resolution was reached on the subject of the possibility of Dr. Sedlak taking a course in behavior modification and Dr. Siudzinski agreed to look into this further. The memorandum covering the evaluation session indicates that an agreement was reached on a meeting to be held with Dr. Andrew Robinson on March 12, 1976, to discuss the assistance quarter, which was to begin March 26, 1976. Dr. Sedlak claims that no such discussion was entered into concerning the subject of assistance quarter or a meeting with Dr. Robinson. Dr. Siudzinski remembers that the subject of setting up an assistance quarter had been discussed in an evaluation session, although he does not mention which session. In fact, after a memorandum of notice, a meeting was held with the then Dean Designate Andrew Robinson on March 18, 1976. At the meeting Dean Robinson had a copy of the memorandum summary of the meeting of March 10, 1976 between Dr. Sedlak and Dr. Siudzinski which is Petitioner's Exhibit #34, admitted into evidence. Dr. Robinson indicated that he felt that the problem with the class coverage was serious. Dr. Sedlak responded that he thought this was trivial. Nonetheless, Dr. Robinson instructed Dr. Sedlak that these matters would begin to pile up. The subject of the assistance quarter was brought up, and Dr. Robinson indicated that if Dr. Sedlak refused to participate in the assistance quarter and resigned, he wanted to know what Dr. Siudzinski would provide in the way of an employment reference. Dr. Siudzinski indicated that he would not volunteer any derogatory information about Dr. Sedlak to a prospective employer. The subject of an assistance quarter was concluded by Dr. Robinson telling Dr. Sedlak that he would expect the assistance quarter to he a part of the spring quarter duties of Dr. Sedlak. Dr. Sedlak, in his testimony in the hearing, denied that any conversation on the assistance quarter was entered into. Dr. Siudzinski again asked for the test instruments which were involved in EEC 604 and Dr. Sedlak refused to give these instruments to Dr. Siudzinski but indicated that he would give them to Dr. Robinson. As stated before, some of these test instruments were never provided to Dr. Siudzinski, nor were they provided to Dr. Robinson. Dr. Robinson also asked Dr. Sedlak at the meeting were there reasons other than professional ones why Dr. Siudzinski would be putting Dr. Sedlak through an assistance quarter. Dr. Sedlak responded that he would not deal with that at that time. After the meeting between Siudzinski, Robinson, and Sedlak, Sedlak came to Robinson's office and stated that the reason Siudzinski was after him was because one day Sedlak had caught Siudzinski and a student in a compromising situation. Robinson responded to this statement by saying that if Sedlak would make formal charges against Siudzinski he would Investigate and discipline Siudzinski if it were true; however, if It was untrue, Dr. Sedlak would be disciplined. Dr. Sedlak said he would need time to think about such a complaint. He never did offer to make a formal complaint. Between the winter and spring quarters of 1976, Dr. Sedlak entered the hospital for a kidney disorder. He had signed out for a car from the University on the day he entered the hospital. The car was signed out from the University to go to Lake City, Florida to teach a workshop for the aged. When he became ill he went to the hospital and parked the car, leaving the car with the keys in the ignition. He then called Dr. Siudzinski and told him he could not attend the workshop the next day because he was in the hospital, after which he hung up. He did not indicate to Dr. Siudzinski which hospital he was in. Through the efforts of the administration and in particular Dr. Siudzinski, it was determined that Dr. Sedlak was in Memorial Hospital, Jacksonville. Dr. Sedlak did not indicate his whereabouts until the next day, at which time he called Dr. Siudzinski and indi-cated that the car was in the Memorial Hospital parking lot. Dr. Robinson was concerned about the health issue and offered to allow Dr. Sedlak to assume some other duties other than teaching in the spring quarter of 1976. Dr. Sedlak declined his offer and returned to his teaching duties. Dr. Robinson made clear that this return to teaching would cause Dr. Sedlak to be treated as any other teacher even though he was going to be on an assistance quarter. As a part of this discussion, Dr. Robinson required Dr. Sedlak to produce a letter saying he was capable of performing his teaching duties Dr. Sedlak responded by correspondence of March 29, 1976, which is Petitioner's Exhibit #39, admitted into evidence. Dr. Siudzinski followed this letter by a letter of March 30, 1970 to Dr. Sedlak which is Petitioner's Exhibit #40, admitted into evidence and indicates that in the spring quarter, Dr. Sedlak would perform duties as an Associate Professor in the Department of Special Education, as well as the additional responsibilities that had been discussed, meaning the assistance quarter. Again Dr. Sedlak denies that the assistance quarter was to be performed. On April 1, 1976, Dr. Siudzinski discussed a meeting of March 29, 1976, between he and Sedlak and reiterates his request for the exams, the five examinations which were used In the winter quarter course EEC 604. Petitioner's Exhibit #42, admitted into evidence, is a composite exhibit containing two examinations of the winter quarter of 1976 and three sets of answers. These items were found in June or July, 1976, but as stated were never given Dr. Siudzinski. Another evaluation session was held between Dr. Siudzinski and Dr. Sedlak on April 22, 1976. A summary of this evaluation session is found in Petitioner's Exhibit #43, admitted into evidence and made a part of the record herein. Some of the subjects covered in the evaluation session included a discussion of the attendance of a workshop on behavior modification, and another request that the examinations for the EEC 604 course be provided. He was also requested to provide the instruments and techniques involved in that course and other courses being taught by Dr. Sedlak. These were provided. An inquiry was made about the progress that Dr. Sedlak had made in mastering Discrepancy Model Competencies contained in the list of January 30, 1976. Other matters covered were the progress which Dr. Sedlak had made on the mastering of behavior modification competencies set up in the memorandum of February 2, 1976. It was also discussed that Dr. Sedlak was not answering his phone in the office. Finally, Dr. Siudzinski indicated that he might be visiting Dr. Sedlak's classes in the future and requested his list of competencies that were to be covered. Dr. Sedlak stated that he would not provide the exams in the EEC 604 class without speaking to the union. He made a similar reply on the request for instruments and techniques in other courses and a similar reply about progress which he had made in mastering the Discrepancy Model Competencies. Additionally, he said he refused to be tested on the Discrepancy Model Competencies, since he was an Associate Professor. He made the same response to the inquiry on progress on behavior modification competencies. He also stated that many of the behavior modification competencies were incorporated in his classes. (Sedlak also taught several sessions on behavior modification for the Duval County School Board outside his normal duties.) The complaint about answering the phone was responded to by Dr. Sedlak in which he said that when he was busy with someone in the office or working on something important, it was not necessary to answer the phone. He agreed to produce the list of competencies to be covered in his upcoming classes. The summary of the evaluation goes on to request in writting copies of the exams in the EEC 604 course for the winter quarter 1976. It also requests in writting, copies of the instruments and descriptions of techniques in evaluating courses being taught by Dr. Sedlak. It requests in writting an answer on progress made in mastering the Discrepancy Model Competencies of January 30, 1976 and the progress made in mastering behavior modification competencies attached to the memo of February 2, 1976. In connection with the discussion of instruments and techniques in evaluating students in the courses being taught by Dr. Sedlak, Petitioner's Composite Exhibit #44, admitted into evidence, is copies of classes assigned to be taught by Dr. Sedlak for the period of his stay with the Department of Special Education. On April 27, 1976, Dr. Sedlak responded to the memorandum on the meeting on April 22, 1976. In this memorandum he suggested that the tests were not kept and that he does not traditionally keep tests and asked why the matter of the tests of the EEC 604, winter quarter kept coming up. He stated that he provided evaluation instruments for EEC 500 as enclosed and stated that the other evaluation instruments were not kept for other courses. His response to the Discrepancy Model of Evaluation was that he had been removed from responsibilities in the area and made no further response. Finally, in response to the question on behavior modification competencies, he simply stated that he had given workshops in behavior modification for Duval County Schools. On May 28, 1976, a memorandum was sent to Dr. Sedlak from Dr. Siudzinski requesting a meeting for the annual evaluation to be held June 2, 1976. During the spring quarter of 1976, Dr. Roy L. Lassitor met with members of the facultv of the Department of Special Education other than Dr. Siudzinski and Dr. Sedlak and requested them to answer several questions. Me asked them if Dr. Siudzinski was involved with any female students to their knowledge, to which they responded no. He asked them if the faculty was aware of any incident between Dr. Siudzinski and some student and they responded yes, but only as a rumor. He asked them if they had confidence in Dr. Siudzinski as chairperson and they responded that they did. The persons contacted were Dr. Van Nagel, Dr. Serwatka, Mrs. D'Zamko and Dr. Gonzales. In that quarter, Dr. Robinson met several times with Dr. Siudzinski to try to clear up the progress that had been made by Dr. Sedlak on the assistance quarter. He also met with Dr. Sedlak and reminded him that he expected Sedlak to perform the assistance quarter laid out by Siudzinski. Respondent's Exhibit #2, admitted into evidence, is a list of Dr. Robinson's suggestions for the assistance quarter. In other meetings with Siudzinski, Siudzinski stated that very few things that Dr. Sedlak had been requested to do had been done, and that he thought that Sedlak should be terminated. Some of the complaints that Siudzinski related to Dr. Robinson were, intimidation of secretaries, graduate students and assistants and disparaging remarks about Siudzinski. Dr. Robinson told Siudzinski to but these matters in writting and after reviewing the case, Dr. Robinson concurred with Siudzinski that Dr. Sedlak's contract should not be renewed. There was a meeting between Dr. Sedlak and Dr. Lassiter which has been previously referred to in the body of facts, specificallv the meeting between June 2, 1976 and June 10, 1976. In that meeting Dr. Lassiter offered Dr. Sedlak the opportunity to make charges against Dr. Siudzinski for his alleged improper conduct. Lassiter stated that he would remove the Chairman if it was a true claim and proceed to terminate Dr. Sedlak for cause if the charges of improper conduct with a student wore false. Sedlak did not bring a charge. An examination of the evidential facts indicates that the recommendation of the non-renewal of the Petitioner's contract, (1) was not based upon a constitutionally impermissible reason, (2) was not violative of any of the Petitioner's property rights and (3) complied with written standards, criteria, and procedures prescribed by the Board of Regents and university regulations. The briefs filed by the parties have been examined and the elements of those briefs which are deemed to be meritorious have been incorporated into the findings of fact of the undersigned.
Recommendation It Is recommended that the Respondent, University of North Florida, not renew the Petitioner's contract of employment with the University of North Florida beyond June 15, 1977 and that the Petitioner be found unentitled to restoration of rights and privileges previously enjoyed before the recommendation of non-renewal of his employment contract with the University of North Florida. DONE AND ENTERED this 10th day of June, 1977, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of June COPIES FURNISHED: Mr. Anthony Demelas American Federal of Teachers 160 College Street Burlington, Vermont Delbridge L. Gibbs, Esquire Post Office Box 447 Jacksonville, Florida 32201 Dr. Joseph Sedlak 5336 Windemere Drive Jacksonville, Florida 32211 Kenneth A. Megill Florida Education Association/United 208 West Pensacola Street Tallahassee, Florida 32304
The Issue Whether Respondent was properly terminated by Petitioner for just cause or is entitled to reinstatement with back pay and benefits.
Findings Of Fact Respondent is a 48-year-old man who was employed between 1997 and August 15, 2005 (eight years), by Petitioner FAMU. During that period, he had attained permanent status in the classifications of Computer Programmer and Senior Computer Programmer in Petitioner FAMU’s Information Technology (IT) Services Unit. Respondent is a member of an AFSCME union bargaining unit. Petitioner reorganized its IT unit in 2004-2005. As a result, several employees of that unit, including Respondent, were targeted for layoff. FAMU’s standard procedure for advising employees for the first time that they were being laid off was to call them to the personnel office. After returning to work from sick leave on August 15, 2005, Respondent was informed that he was to report to the personnel office that afternoon. Four or five people already had been laid off, and Respondent anticipated that he would be laid off. Indeed, Respondent’s position as a Senior Computer Programmer Analyst had been eliminated as a result of the reorganization, but he did not know this in advance of the August 15, 2005, meeting. With apprehension, Respondent unsuccessfully attempted to secure a union representative to accompany him to the afternoon meeting. He subsequently secured a tape recorder from his home, with the intent of recording the meeting. The meeting turned out to be scheduled in the office of FAMU’s Human Resources Administrator. When Respondent arrived at the meeting location, there were two campus police officers, John Cotton and Audrey Alexander, present. Also in attendance were Dr. Janie Greenleaf, FAMU Human Resources Administrator; Dr. Kenneth Perry, at that time Associate Vice-President and Chief Technology Officer; and Howard Murphy, the IT consultant hired as special assistant to the university president. Mr. Murphy had done the assessment leading to the layoffs, and it was he who had recommended which employees to lay off. The meeting was intended by the administrators as an initial layoff meeting, wherein Respondent would be presented with a letter advising him that he was being laid off as of that date and of his rights under the rules governing layoffs (the Notice of Layoff); he would sign another letter acknowledging that he had received the Notice of Layoff; and any questions he had would be answered by those present. Upon entering Dr. Greenleaf’s office, Respondent was instructed to take a seat, and he did so. Dr. Greenleaf laid a Notice of Layoff (Exhibit P-2), dated August 15, 2005, on a table in front of him. Respondent then removed his tape recorder from an attaché case. This movement appears to have put the other attendees on edge, because terminations, for whatever reason, can turn violent. Respondent then placed the recorder on the table, and announced that he intended to record the meeting. He stated that anyone who did not want to be recorded could leave. Respondent testified that he had assumed that his behavior would cause the administrators to end the meeting and do what they intended to do without any input from him. (TR-74) Instead, Dr. Greenleaf told Respondent that he could not record the meeting because she did not want to be recorded. She told him to turn off his tape recorder. Apparently, Dr. Greenleaf was the only attendee who objected out loud to being taped. Respondent would not turn off his recorder. Respondent believed that he had a right to tape the meeting because of his status as a University Support Personnel Services (USPS) employee. He testified that during his employment with FAMU, he had attended workshops where he had been allowed to record the meeting for accuracy and make his written report to his superiors from the taped record. He also testified that he had recorded “in the open” a conversation with a superior about a promotion. He further testified that he had been in meetings and hearings with an AFSCME union representative when administrative personnel asked them to turn off the recorder and told them when they could turn on the recorder. In these instances, there were apparently “on the record” and “off the record” conversations. (TR 73-74) There is the suggestion in Respondent’s testimony that he believed that, in the absence of a union representative, he was entitled to tape any meeting. More than once in the August 15, 2005, meeting, Respondent stated to the assemblage that he had a right “as USPS” to record the meeting. After reviewing either a statute book or labor union book, Dr. Greenleaf advised everyone present that the meeting could not be recorded without all attendees’ consent. Dr. Greenleaf advised Respondent that he could take notes; have someone present to transcribe the meeting; or have an AFSCME union representative present; but that she did not wish to be recorded. From the evidence as a whole, it appears that Respondent believed that since he could not get a union representative there at that time, his only option was to tape the meeting, but there is no evidence that he requested to reschedule the meeting for a time when he could be accompanied by a union representative. Dr. Greenleaf repeatedly advised Respondent that he could not record the meeting and/or ordered him to turn off his tape recorder. Respondent repeatedly refused to cease taping and repeatedly advised the assemblage that anyone who did not wish to be recorded could leave. At least once, Dr. Greenleaf advised Respondent that his refusal could be construed as insubordination. Apparently, the volume of both Dr. Greenleaf’s and Respondent’s voices became elevated. Respondent’s affect was described by all the witnesses who testified as “defiant,” “agitated,” “adamant,” persistent,” and/or “insistent.” Dr. Greenleaf then interrupted the meeting and asked Respondent to wait outside. Dr. Greenleaf and Dr. Perry consulted and decided that Respondent was being insubordinate. A revised letter dismissing Respondent for insubordination (the Notice of Dismissal, Jt. Ex. 1) was drafted and signed by Dr. Perry. When he was permitted to return to Dr. Greenleaf’s office, Respondent turned on his tape recorder again. Dr. Greenleaf had removed the original layoff letter from the table and delivered to Respondent the Notice of Dismissal for insubordination, also dated August 15, 2005.3/ Respondent requested a copy of the original Notice of Layoff, and was informed by Dr. Greenleaf that he was now terminated for insubordination and the Notice of Layoff was withdrawn. Respondent was not provided with a copy of the Notice of Layoff. Respondent was ultimately conducted off campus by Officers Cotton and Alexander without further incident. Although Respondent was dismissed from FAMU, effective August 15, 2005, he remained on the University’s payroll through August 29, 2005, approximately two weeks following his dismissal. The Notice of Dismissal retained the two week pay provision that had been part of the Notice of Layoff. Subsequent to his termination by FAMU, Respondent has sought other employment, but has been unsuccessful.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Florida Agricultural and Mechanical University enter a final order which: Reinstates Respondent in his previous position as of August 15, 2005, and corrects all personnel records to reflect that he was not discharged for insubordination; Provides him with back pay dating from August 29, 2005, to the date of the final order; Provides him with all commensurate employee benefits dating from August 15, 2005, to the date of the final order; and As of the date of the final order, provides him with all layoff rights and entitlements appropriate to his job position and bargaining unit under the layoff procedures applicable at that date. DONE AND ENTERED this 2nd day of August, 2006, in Tallahassee, Leon County, Florida. S ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of August, 2006.
Findings Of Fact Petitioner has been employed in the Department of Psychiatry, College of Medicine, University of Florida, as an Instructor in Social Work since May, 1974. Petitioner completed her undergraduate work in sociology in 1963 at the University of Chile, and earned a master's degree in social work at the University of Kansas in 1974. The Master's of Social Work degree is the terminal degree in Petitioner's field. Since her initial employment, the Petitioner's duties and responsibilities have remained virtually unchanged. She has been assigned to Adult In-patient Services in the Department of Psychiatry at J. Hissis Miller Health Center in Gainesville, Florida, and has been required by the terms of her faculty assignment to devote approximately twenty-five percent of her time to the medical degree program; thirty-two percent of her time to house staff training; twelve percent of her time to teaching/research; and twenty-eight percent of her time to non-instructional patient care, with the remaining portion of her time devoted to various other duties. Petitioner's primary responsibility was providing health care services to patients and instructional services to house staff members, medical students and students from various other disciplines. Petitioner's teaching responsibilities were not performed in the classical classroom setting, but were accomplished in a clinical setting, with some responsibility for guest lecturing outside the hospital. As a non-tenured instructor in the Department of Psychiatry, Petitioner was appointed on a year-to-year basis, and her contracts of employment were for a full twelve-calendar-month period. Sometime in 1975, the Chairman of the Department of Psychiatry furnished to Petitioner a copy of the Board of Regents Policy Manual which included the factors necessary for evaluation in order for an employee in Petitioner's position to achieve tenure. Among these factors was included a provision concerning participation in "research and other creative activities." Accordingly, it is specifically found that all times material hereto, Petitioner knew, or should have know, that research and creative activities were among the factors upon which she would be evaluated should she purse a tenured position at the University of Florida. From Petitioner's initial employment in 1974, through the time she submitted her tenure application in 1978, no written evaluations of her performance were made. In fact, the only written evaluations of Petitioner's instructional efforts during her entire employment period were generated in conjunction with her application for tenure and promotion. Although Petitioner spoke occasionally with her department chairman concerning the advisability of scholarly activity leading to the publication or other dissemination of her work in the academic community, she was never advised of any deficits in the area of "teaching" until after she applied for tenure. In late 1978, when Petitioner was in her fifth year of non-tenured employment at the University of Florida, she was considered for tenure and promotion in accordance with tenure policies of the Respondent and the Board of Regents. In the course of this consideration, three areas of Petitioner's performance were evaluated: service; research and other creative activities; and teaching. Petitioner's rendering of health care services in the context of her clinical duties falls into the area of "service" in connection with her application for tenure. The evidence in this proceeding clearly establishes that Petitioner is an outstanding clinician, and has proven very effective in performing her resonsibilities in the areas of group, individual and family therapy, and follow-up care planning. Petitioner has also been active in establishing a rape counselling program in the Gainesville area, and although she has served on no university-wide committees, it does not appear that she was invited to do so, or that she could have done so absent such an appointment or invitation. With respect to the area of "research and other creative activities," the record establishes that Petitioner has prepared two articles, one of which was accepted for publication but was not, in fact, published due to the untimely demise of the journal in which the article was to have been published. In addition, since evaluation of her tenure application by Respondent, Petitioner has delivered a paper to a meeting of the American Psychiatric Association. Another social worker who applied for and was granted tenure in the Department of Psychiatry contemporaneously with Petitioner's application had published six or seven articles in scholarly journals, an had been active in speaking engagements in her area of research and scholarship. With respect to the "teaching" element of Petitioner's tenure application, as previously noted, no written teaching evaluations existed in Petitioner's personnel file from the time of her employment in 1974 until the time of her tenure application in late 1978. In response to requests from both Petitioner and the Chairman of the Department of Psychiatry, various psychiatrists and social workers who were familiar with Petitioner's teaching, both as students and fellow faculty members, submitted letters which were almost uniformly laudatory of Petitioner's teaching ability. In addition, during December 1978, sixteen faculty evaluation forms were distributed to faculty members in the Department of Psychiatry soliciting their evaluations of Petitioner's teaching ability. Of these sixteen faculty members, only ten attempted to rate Petitioner as a teacher. The evaluation form required the evaluator to assign a number value to Petitioner's teaching ability with "a" indicating outstanding ability; "2", above average ability; "3", average ability; "4", unsatisfactory performance, and "5", totally inadequate performance. These number values were assigned in each of the following seven teaching areas: depth and newness of knowledge; admits lack of knowledge when appropriate; ability to convey information; receptive to new ideas or criticism; genuinely interested in teaching; stimulating teacher; and, in relating to patients, does teacher convey compassion and concern for the individual. In addition, the form provided for some indication of the extent of contact the evaluator had had with Petitioner, the form of that contact, and for discussion of strong and weak points of Petitioner's teaching ability, together with any additional comments that the evaluator might choose to make. The results of this evaluation were that, of the ten people evaluating Petitioner's teaching ability, three gave her an overall rating of "Outstanding"; two evaluated her as "Above Average"; three considered her an "Average" teacher; one thought her to be "unsatisfactory"; and one evaluator felt her to be "Totally Inadequate". Interestingly, only six of the ten persons evaluating Petitioner's teaching ability indicated that they had sixteen or more hours of contact with her as a teacher during the entire five-year period of her employment at the University of Florida. Further, there is no indication in any of the documents admitted into evidence in this proceeding, or in any of the testimony at final hearing whether those evaluating Petitioner's teaching ability did, in fact, have sufficient knowledge in this area upon which to form a competent opinion of her performance. The Chairman of the Department of Psychiatry used the data generated from the "faculty evaluation" forms to compute a mean teaching ability score for Petitioner, which was then, in turn, compared against the "department mean". The "department mean", however, was not a true reflection of the teaching evaluations of the faculty of the Department of Psychiatry, as a whole, but included only those other candidates for tenure and promotion who were being considered at the same time as Petitioner. The record reflects that, in addition to social workers, members of as many as four other disciplines were being considered for tenure and promotion in the Department of Psychiatry at the same time as Petitioner. Consequently, Petitioner was neither being compared against the entire faculty of the Department of Psychiatry, nor against other social workers employed in the Department, either tenured or non-tenured. Petitioner was evaluated below the departmental mean in each of the seven separate areas of evaluation mentioned above, and her overall mean rating of 2.70 was also below the department mean of 1.89. After Petitioner's tenure packet, including teacher evaluations and other back-up data, was prepared, it was submitted to the Tenure committee of the Department of Psychiatry, which voted seven to three, with one abstention in favor of granting tenure to the Petitioner. The Chairman of the Department of Psychiatry then forwarded Petitioner's tenure packet to the Dean of the College of Medicine with his recommendation that she be granted tenure, which, in effect, made the departmental vote eight to three, with one abstention in favor of granting tenure. While not directly relevant to this proceeding, the Departmental vote taken on the promotion of Petitioner from the rank of Instructor to Assistant Professor was eighteen to four, with two abstentions, in favor of promotion. Petitioner's tenure packet was submitted to the Tenure Committee in the College of Medicine, which committee consisted of seven members. Two members of the committee were assigned as the primary and secondary reviewers of the application, one of whom testified at final hearing in this cause that the faculty evaluation forms themselves were not furnished to the committee, and that the committee was not advised that Petitioner's mean scores were compared to a departmental mean consisting of only those other faculty members being considered for tenure at the same time. This particular committee member was under the impression that the department mean against which Petitioner was compared consisted of all members of the faculty in the Department of Psychiatry. The vote of the College of Medicine Tenure Committee was six to one against the granting of tenure, with the only affirmative vote being that of the Chairman of the Psychiatry Department. In his letter advising the Chairman of the Department of Psychiatry of the outcome of the vote before the College Tenure Committee, the Dean of the College of Medicine wrote that: As you are aware, a candidate for promotion or tenure should be highly qualified in at least two or three areas: teaching, research or service. The only area in which Mrs. Vera appears to have strength is the area of service as research is almost non-existent and her teacher evaluations range from average to less than average. As a matter of policy, the University of Florida Personnel Board, in considering grants of tenure, looks for a demonstration of strength in at least two of the three areas of evaluation. Situations have existed in which tenure has been granted upon a showing of competence in the remaining two areas. The Personnel Board, as a matter of course, looks for teaching ability above departmental average in those persons being considered for tenure. In addition, it is customary practice at every level of the tenure granting process not to afford a tenure applicant an opportunity to appear in person before the various tenure committees. Both Petitioner and Respondent have submitted proposed Findings of Fact in the course of this proceeding. To the extent that those Findings of Fact have not been adopted in this Recommended Order, they have been rejected as not having been supported by the evidence, or as having been irrelevant to the issues under consideration herein.
Recommendation Based upon the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that a Final Order be entered by the President of the University of Florida requiring that Petitioner's appointment as a non-tenured social work instructor in the Department of Psychiatry, College of Medicine, University of Florida, be extended for a period of at least one year, or such longer time as may be necessary to properly evaluate Petitioner's teaching performance in accordance with applicable statutes and rules and regulations promulgated by the Board of Regents and the University of Florida. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 20th day of February, 1980. WILLIAM E. WILLIAMS Hearing Officer Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of February, 1980. COPIES FURNISHED: Selig I. Golden, Esquire Post Office Box 1251 Gainesville, Florida 32602 Ashmun Brown, Esquire University Attorney's Office 207 Tigert Hall University of Florida Gainesville, Florida 32611
The Issue Whether Respondent violated the Florida Civil Rights Act of 1992, as alleged in the Charge of Discrimination filed by Petitioner on November 30, 2000.
Findings Of Fact In November 1999, Respondent, Stetson University, (Stetson) advertised for applicants for a tenure track position on its faculty to begin in August 2000. The position was in the Department of Mathematics and Computer Science. The position advertisement read as follows: Stetson University invites applications for a tenure-track position beginning August, 2000. A Ph.D. in mathematics is required. Rank and salary will be commensurate with experience. The duties include teaching a broad range of undergraduate courses to both majors and non-majors, maintaining a program of scholarly activity, and undertaking university service. The teaching load is three courses per semester. Salary is competitive. The successful candidate will exhibit an enthusiasm and talent for teaching, support department standards for student performance, and contribute to the intellectual life of the department. Because all students in the College of Arts and Sciences must undertake a senior project, candidates should be committed to fostering undergraduate research. An interest in interdisciplinary work or applied mathematics is a strong plus. Stetson, Florida's first private university, is a small selective university of 2000 students. We are located in DeLand, Florida, 40 miles from Orlando and 20 miles from Daytona Beach. The department consists of seven mathematicians and four computer scientists, and has a variety of computing resources available, including computer- equipped teaching laboratories. Further information about out department is on our web page: http:www.Stetson.edu/departments/ mathcs/. Please send the following to the address below: letter of application, curriculum vitae, AMS cover sheet, a statement of mathematical interests, and a statement of teaching philosophy as it pertains to a liberal arts curriculum. Also arrange for three letters of reference, at least one of which addresses teaching. Dr. Grady Ballenger is Dean of the College of Arts and Sciences at Stetson. During the search to fill the faculty position in question, Dr. Ballenger appointed four individuals to serve on a search committee. He appointed Dr. Margie Hale as Chair of the committee, Dr. Erich Friedman, Dr. Michael Branton, and Dr. Kevin Riggs. Drs. Hale and Friedman, are faculty members in the mathematics department; Dr. Branton is Chair of the math department. Dr. Riggs is a faculty member of the physics department. Stetson routinely appoints one person from outside the department for which the position is advertised to serve on a faculty search committee. Dr. Hale sent a letter dated November 10, 1999, to Petitioner acknowledging that Stetson received his application. The letter also included the following: “Please make sure you have arranged for all of the items requested (listed below) to reach us as soon as possible.” The items listed at the bottom of the letter are “AMS cover sheet, letter of application, curriculum vitae, a statement of mathematical interests, a statement of teaching philosophy as it pertains to a liberal arts curriculum, three letters of reference, at least one of which addresses teaching.” The search committee used a system of stickers whereby each person had a particular color sticker. When a member of the search committee read and evaluated the file, the appropriate color sticker was placed on the file. The reader would place a check mark on the sticker which indicated the reader felt favorably about the application, an “X” if the reader was not interested in the application, and left it blank if the application was considered midline. Files that received two or more checks were put in a stack for further review. Stetson received at least 220 applications for the advertised position. The search committee narrowed the applicants to approximately 30 for further review. Petitioner’s application was not among the 30 finalists. Of those 30 finalists, 24 were interviewed at a national meeting held each year. The meeting is a joint meeting of the Mathematical Association of America and the American Mathematical Society. Drs. Friedman and Branton conducted those 24 interviews. The other finalists who did not attend the conference were interviewed by phone. After Drs. Friedman and Branton returned from the conference, the committee met and discussed Drs. Friedman and Branton’s evaluations of the persons interviewed. The committee narrowed the applicant pool to six finalists who were invited for an interview. By this time, the search had expanded to attempt to fill two faculty positions in mathematics. Of the six persons who received interviews on campus, an offer of employment was first extended to Dr. Hari Pulapaka. Dr. Pulapaka accepted the offer. Stetson intended to make an employment offer to one other of the six finalists. However, that candidate withdrew from the search. The decision was made not to offer employment to any of the remaining four finalists. Instead, two additional candidates were brought to campus for interviews. Of these last two finalists, an offer of employment was made to Denise Szecsi, who accepted the offer. Dr. Pulapaka received a Ph.D. from the University of Florida in 1995. His cover letter expressed a strong interest in Stetson, specifically referencing its mathematics department’s emphasis and experience with interdisciplinary curricula, its small classes, and his desire to return to Florida. His application included the required AMS cover sheet, a separate and detailed statement of teaching philosophy as it pertains to a liberal arts curriculum, a separate and detailed statement of mathematical interests, a detailed vitae which included institutions taught and during what time frames, and numerous publications and presentations, including dates of publication. Five confidential and current letters of reference were sent to Stetson on behalf of Dr. Pulapaka. The search committee selected Dr. Pulapaka because of his strong credentials outlined above and found his teaching philosophy and mathematical interests to be in sync with what they were looking for. Additionally, the search committee strongly preferred confidential letters of reference, i.e., letters of reference sent directly to Stetson, because it meant that the applicant had not seen them. Dr. Pulapaka clearly met the qualifications specified for the position. At the time she applied for the advertised faculty position, Denise Szecsei was what is referred to in academic circles as “ABD” which means all but dissertation. In that regard, she had completed all of her coursework to earn her Ph.D. and defended her dissertation shortly after interviewing for the position. During the interview process, the committee contacted Dr. Szecsei’s advisor to ensure that she was close to completion of her Ph.D. Dr. Szecsei had her Ph.D. in hand when she started employment at Stetson. Dr. Szecsei’s application packet included the required AMS cover letter, a separate statement of teaching philosophy, a separate statement of her research interests in mathematics, and a detailed vitae which included references to strong academic honors (i.e., she is a member of Phi Beta Kappa and graduated magna cum laude when she received her bachelor’s degree). Moreover, Dr. Szecsei’s cover letter noted that she had teaching experience in a variety of academic environments including the military, community college and university. It referenced her interest in living in Central Florida and her knowledge of Stetson. Four confidential and current letters of reference were sent to Stetson on behalf of Dr. Szecsei. The committee found Dr. Szecsei’s teaching philosophy and research interests to be impressive. It was clear to the committee that teaching was Dr. Szecsei’s main focus. Her letters of reference were confidential and current. In a memorandum recommending her to Dean Ballenger, a member of the search committee commented on Dr. Szecsei’s extra academic credentials, i.e., in addition to her Ph.D. in mathematics, she was close to having a master’s degree in chemistry, she had much more teaching experience than the typical new Ph.D., and she gave the best classroom performance of any candidate he had observed since he had been at Stetson. Petitioner argues that Dr. Szecsei was not qualified for the position because she did not have her Ph.D. in hand at the time of the application. That argument is rejected. Stetson made certain that she was to receive her Ph.D. before her employment began and, indeed, she had her Ph.D. in hand when she began working there. Dr. Szecsei in that and all other respects was a qualified applicant for the advertised position. Petitioner holds a B.A. in physics from the University of California, Berkeley, an M.A. in mathematics from Sacramento State College, and a Ph.D. from the University of California, Riverside. His resume does not indicate in what years he received his degrees. His resume lists numerous publications, participation in many presentations and seminars, but does not mention the dates of any of them. Petitioner’s application packet does not contain the required AMS cover sheet. There is no separate statement of mathematical interests or statement of teaching philosophy, but he referenced his academic interests and areas of mathematical interest in his cover letter. Petitioner's several letters of reference were not confidential, i.e., he included them with his application packet, were not addressed to Stetson, and were not current (the dates of the reference letters ranged from 1986 through 1994). Petitioner’s application does not indicate his age. Petitioner argues that his age can be inferred from references to certain dates in his letters of reference. For example, one letter of reference states that Petitioner received his Ph.D. in 1968. Another letter of reference mentions that Petitioner taught at a particular university from 1971 to 1981. In any event, Petitioner now informs that he was born in 1936. The search committee noted that Petitioner did not submit an AMS cover sheet as required. Despite this omission, the search committee reviewed Petitioner’s application packet and made several observations. Drs. Hale and Friedman noted that Petitioner’s cover letter appeared to be generic in nature with no specific reference to Stetson. Dr. Friedman noted that Petitioner addressed research before teaching indicating to him that Petitioner may have a stronger interest in research than teaching. Moreover, Dr. Friedman described Petitioner’s cover letter as "not polished." The fact that Petitioner’s reference letters were not confidential in nature was a negative factor. The lack of specific reference to teaching positions was a significant negative factor in the eyes of the committee. Petitioner’s expectation that a search committee which received approximately 220 application packets would search through letters of reference to piece together employment and teaching history is unrealistic and unreasonable. The search committee’s failure to do so does not indicate in any way that they engaged in any type of discrimination. Further, the lack of dates regarding years of teaching, publications, and participation in presentations, etc., made it impossible for the search committee to know how recent his teaching experience was. The undersigned is persuaded that the search committee did not wade through the letters of recommendation to calculate his approximate age. Other than Petitioner’s omission of the AMS cover letter, Petitioner was qualified for the job in question. However, there were many applicants and many qualified people who were not granted an interview. There is no competent evidence that Stetson used age as a criterion in its determination of who would and who would not be hired for the mathematics position. On the contrary, the preponderance of the evidence demonstrates that age was not a factor in the selection process.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 4th day of March, 2004, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of March, 2004.
