The Issue Whether Respondent's conduct in recruiting, selecting, and hiring Robert Denson as Associate University Attorney was improper and justifies imposition of University discipline pursuant to Rule 6C-5.27, Florida Administrative Code.
Findings Of Fact Ultimate facts are conclusions reached by applying inference and logic to evidentiary facts. See, Feldman v. Department of Transportation, 389 So.2d 692, 694 (Fla. 4th DCA 1980). The following conclusions address the charges brought against Biggs by the University. XII. Preselection A preponderance of evidence does not establish that Biggs preselected or decided to hire Robert Denson prior to recruiting and evaluating other applicants for the job of Associate University Attorney. Although Biggs was impressed with Denson's performance as an Assistant Dean and, no doubt, felt Denson could be an effective Associate University Attorney, such facts, in themselves, do not establish preselection. There is no evidence that Biggs ever encouraged Denson to seek employment as an Associate University Attorney; at the time of the alleged preselection, Biggs believed Denson planned to enter private practice. 16/ With such a belief, it would have been improbable that Biggs decided, in advance, that Denson would be his choice. Prior to learning of Denson's interest in the position, Biggs engaged in conduct designed to broaden the applicant search and open the position to increased numbers of out-of-state female and black applicants. 17/ Denson's ultimate selection and employment under those broadened search criteria does not provide a sufficient basis to conclude that the criteria were originally devised with Denson in mind. Out of over 70 applicants, the Search Committee independently selected Denson as its number two choice. It was not until after his justifiable rejection of the Committee's number one choice that Biggs decided that Denson was the most qualified applicant and should be selected. His tenacious efforts to defend that decision are consistent with his conviction that his decision was correct. XIII. Service on the Search Committee Biggs did not know and was not reasonably on notice that his service on the Search Committee was contrary to University Search and Screen Procedures. At the time, the published procedures did not expressly prohibit a hiring authority from serving on a Search Committee which he or she appoints; neither did the guidelines infer or give reasonable notice that such action was proscribed. Although Biggs served on the Search Committee, the weight of evidence indicates the Committee functioned in an independent manner: its discussions were free and open, its decisions were made by consensus. Biggs neither manipulated its decisions nor unduly influenced its discussions. XIV. Hiring "Unqualified Applicant for the Position Biggs reasonably believed that the SUS requirement of Florida Bar membership had been "waived" by the University's Personnel Office. This conclusion is based on Personnel's action in advertising the position and subsequently screening and approving applicants; on Biggs' prior experience in obtaining waivers of the Florida Bar membership requirement; and on Personnel's inconsistent decisions and interpretations regarding waivers. When Biggs announced his decision to hire Denson, Willits protested that the SUS Florida Bar membership requirement had not, in fact, been "waived"; however, the final decision was then placed before the University Personnel Director, Robert Button. Biggs asked Button whether Denson met the minimum job qualifications and could be hired. (P-27.) Button answered that exceptions (a term seemingly synonymous with waivers) were allowed only for affirmative action purposes, that he did not see how an exception could be applied to hire a white male when there were qualified blacks and women who exceeded the minimum qualifications but that the decision on whether or not to hire Denson must be made by Biggs. Button did not say that Denson could not be hired, or that such a hiring would be disapproved by Personnel. Biggs reasonably construed this to mean that Personnel questioned the wisdom of his hiring Denson but that the decision was a permissible one which was his, and his alone, to make. If Denson could not be hired without violating University fair hiring practices, he had a right to expect that Button would have told him so. Biggs also had reasonable cause to believe that he could successfully justify hiring Denson on his merits--an impressive applicant with unique experience and demonstrated competence. XV. Compliance with the Affirmative Action Policy Biggs' hiring of Denson was not proscribed by any provision of the University's Affirmative Action Plan, a fact seemingly admitted by the University's personnel officer--the person charged with monitoring compliance with the Plan. (Tr. 320-321.) No showing was made that the Plan placed a mandatory duty upon Biggs to hire a black or female applicant who he reasonably concluded was less qualified than a white male. Search Committees were created, in part, to ensure affirmative action and equal employment opportunity; Biggs hired the second choice of his Committee after reasonably rejecting its first choice. Due process requires that charges against an accused be specific in nature. Care must be taken when accusing persons of violating affirmative action policies which are often couched in vague or general terms. XVI. Discrimination in Employment By his recruitment and selection of Denson, Biggs did not discriminate against female or black applicants on the basis of sex or race. His action was not motivated by discriminatory intent; any inference to the contrary is effectively negated by his prior nondiscriminatory hiring decisions and his effort to increase the number of female and black applicants for Carole Taylor's vacant position. His overriding objective was to select the best and most qualified applicant. His failure to select a black or female applicant who he reasonably considered less qualified than a white male cannot and should not be considered impermissible discrimination.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the University of Florida enter a Final Order dismissing its charges against Thomas S. Biggs, Jr. DONE AND RECOMMENDED this 17th day of April, 1981, in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 FILED with the clerk of the Division of Administrative Hearings this 17th day of April, 1981.
The Issue Whether Petitioner is entitled to credit for her answers to questions 55 p.m. and 56 p.m. on the Fundamentals of Engineering portion of the engineering licensure examination given on April 15, 2000.
Findings Of Fact Upon consideration of the oral and documentary evidence received at the hearing, the following relevant findings of fact are made: The examination for licensure of an engineer in the State of Florida is administered by the Florida Engineers Management Corporation, a not-for-profit corporation, created under Section 471.038, Florida Statutes. A written examination is authorized by Rule 61G15-21.001, Florida Administrative Code. Respondent contracts with the National Council of Examiners for Engineering and Surveying to provide engineering licensure examinations. This practice is approved by Section 455.217, Florida Statutes, and Rule 61G1 5-21.005, Florida Administrative Code. The National Council of Examiners for Engineering and Surveying develops standardized tests given for licensure throughout the United States and ensures that the questions are not ambiguous through a number of methodologies. A candidate for licensure as an engineer intern must attain a "scaled" score of 70 to pass the examination. On the examination taken by Petitioner, the minimum "raw" score required to attain a "scaled" score of 70 was 107; Petitioner's "raw" score was 105. Petitioner had initially challenged five questions; at the hearing, Petitioner withdrew her challenge to three questions; the two remaining challenged questions (55 p.m. and 56 p.m.) were "ethical" questions, i.e., they dealt with questions of engineering ethics. The challenged questions were multiple-choice questions. The test gives the following directions: "Each of the questions or incomplete sentences below is followed by four suggested answers or completions. Select the one that is the best in each case and then fill in the corresponding space on the answer sheet." (Emphasis added.) The challenged question 55 p.m. deals with an engineer hired to prepare a report on the design, manufacture, and assembly of a structure. The report contains references to "shoddy workmanship." Petitioner states that while she agreed that answer A [the graded "correct" answer] is correct, she believed that the inclusion of the word "also" in answer B included answer A in answer B by reference and therefore she chose B as her answer. Petitioner acknowledges that the word "also" in answer B could be referring to language in the question rather than in answer A. Answer A specifically refers to "engineering issues" which the engineer is "qualified to assess"; answer B indicates that the references to "shoddy workmanship" are "personal opinions" and "not professional opinions". An engineer is obligated by his license not to give an opinion for which he does not have expertise. An engineer should not render a personal opinion in a report in which the engineer gives a professional opinion. The challenged question 56 p.m. deals with an engineer who lacks expertise dealing with space frames but designed structures which included same. Regarding challenged question 56 p.m., the Petitioner acknowledged that answer A (the graded "correct" answer) could have been the correct answer as well as the answer she chose, answer D. Answer D indicates that the engineer was unethical because he did not refer that matter to the Registration Board. An engineer should not contact the Registration Board and report to the Board that someone has asked him to do something unethical; it is incumbent upon an engineer to practice engineering ethically without the input of the Board. In both instances in answering the challenged questions the Petitioner failed to provide the "best" answer and at hearing acknowledged that the graded "correct" answer by the National Council of Examiners for Engineering and Surveyors was a "correct" answer even though she chose a different answer.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Engineers Management Corporation enter a final order denying Petitioner's challenge to questions 55 p.m. and 56 p.m. DONE AND ENTERED this 27th day of December, 2000, in Tallahassee, Leon County, Florida. JEFF B. CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of December, 2000. COPIES FURNISHED: Yvette Bowman 3401 North Lakeview Drive Apartment 216 Tampa, Florida 33618 Douglas D. Sunshine, Esquire Florida Engineers Management Corporation 1208 Hays Street Tallahassee, Florida 32301 Barbara D. Auger, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Dennis Barton, Executive Director Board of Professional Engineers Department of Business and Professional Regulation 1208 Hays Street Tallahassee, Florida 32301 Natalie A. Lowe, Esquire Vice President for Legal Affairs Florida Engineers Management Corporation 1208 Hays Street Tallahassee, Florida 32301
Findings Of Fact The Respondent, Fahmy M. Rizk, M.D., is a licensed physician in the State of Florida, having been issued license number ME0028230. The Respondent is engaged in the practice of medicine at 117 San Carlos Boulevard, Ft. Myers Beach, Florida 33931. A formal hearing was held on August 22, 1978, before a hearing officer of the Division of Administrative Hearings, which resulted in a Recommended Order to the Board of Medical Examiners. The Recommended Order, with findings of fact and conclusions of law, was adopted as the Final Order of the Board of Medical Examiners on October 27, 1978, resulting in the suspension of Respondent's license for two (2) years. Respondent petitioned for reinstatement and modification of the suspension by Petition For Reinstatement And Modification Of Suspension heard on October 25, 1980, in Tampa, Florida. The petition resulted in a Final Order of the Board of Medical Examiners, entered on November 19, 1980, accepting a proposed Stipulation executed by the Respondent, Fahmy M. Rizk, M.D., on November 1, 1980. In the Stipulation, Respondent agreed, among other things: I shall be placed on a probationary status throughout the remainder of my practice of medicine in the State of Florida. During this period of probation, I shall be subject to the following terms and conditions: * * * (c) I shall examine or treat female patients only with the constant attendance of a licensed physician or nurse. Under the Final Order of the Board of Medical Examiners dated November 19, 1980, pursuant to the Stipulation executed by the Respondent on November 1, 1980, Respondent was reinstated to practice medicine in the State of Florida, based upon the requirements in the Stipulation. On June 6, 1981, the Board of Medical Examiners heard Respondent's request to practice medicine outside of a structured medical environment, and the request was denied June 26, 1981. On December 6, 1981, Respondent again requested of the Board of Medical Examiners a modification of his probation terms and conditions to once more practice outside of a structured medical environment, and the request was denied by Order dated January 14, 1982. On June 6, 1982, Respondent petitioned the Board of Medical Examiners for termination of his probation status, and the request was denied by Final Order of the Board of Medical Examiners on June 15, 1982. Again, on December 3, 1983, Respondent petitioned the Board of Medical Examiners to terminate his probation, and the request was denied by Order of the Board of Medical Examiners on January 13, 1984. However, Respondent's orders of probation were modified to relieve Respondent of the requirement that he make semiannual appearances before the Board and to reduce his monitoring physician's reporting from monthly to quarterly. In the year ending approximately February 2, 1986, Respondent examined or treated female patients without the attendance of either a licensed physician or a nurse, licensed or unlicensed. Respondent knew that he was required to have either a licensed physician or nurse in attendance when he examined or treated female patients. Between January and June, 1983, Respondent hired a nurse who was not licensed in Florida for $3.50 an hour to be in attendance when he examined or treated female patients. He misrepresented to Petitioner's investigator that the nurse was licensed in Florida and that she worked for Respondent through 1985. In April, 1985, Respondent also attempted to avoid the conditions of his probation by attempting to persuade Petitioner's investigator that the conditions of his probation had been modified to permit him to examine and treat female patients as long as another female was present although no such modification had been made. Much of the incriminating evidence Petitioner presented consisted of statements Respondent made to Petitioner's investigator. These statements were made voluntarily after the investigator informed Respondent that he was not obligated to speak to the investigator.
Recommendation Based on the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that the Board of Medical Examiners enter a final order holding Respondent, Fahmy M. Rizk, M.D., guilty of violating Section 458.331(1)(h) and (x), Florida Statutes (1985), and suspending his license until payment of a $1000 fine, payable in not more than 90 days. DONE AND ORDERED this 6th day of April, 1987 in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of April, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-3572 These rulings on the parties' proposed findings of fact are made to comply with Section 120.59(2), Florida Statutes (1985). Petitioner's Proposed Findings of Fact. 1.-8. Accepted and incorporated. 9.-24. Subordinate to facts found. 25.-27. Accepted and incorporated. 28.-66. Subordinate to facts found. (It should be noted that "Dr. Murphy," as indicated in the transcript and referred to in proposed finding 29, should be Dr. Mufdi, according to the Hearing Officer's notes.) Respondent's Proposed Findings of Fact. 1.-4. Accepted and incorporated. 5.-6. Accepted but subordinate to facts found and unnecessary. Last sentence rejected as erroneous conclusion of law; rest accepted and subordinate to facts found. Accepted but subordinate to facts found and unnecessary. 9.-13. Accepted but subordinate to facts found. Rejected that the advice was "in spite of the official policy and procedures" because proof was that the advice was in accordance with the official policy and procedures. Rejected as contrary to the greater weight of the evidence to the extent it implies she was Respondent's only nurse. The evidence was Respondent told Potter that Cordias was part-time and worked when Muskatello was off. Also subordinate as a recitation of testimony. 16.-17. Accepted but subordinate and unnecessary. Rejected as contrary to the greater weight of the evidence. (Other matters were discussed, too.) Also subordinate. Last sentence rejected, as contrary to the greater weight of the evidence, that those were the only matters discussed; rest rejected in part as erroneous conclusions of law as to the existence of a "fifth amendment privilege" and "right to an attorney" and in part as contrary to the finding that Potter did advise Respondent of his right to remain silent but otherwise accepted and subordinate to facts found. If "medical office" means "examination room," accepted but subordinate and unnecessary. First sentence accepted but subordinate to facts found; as to the second sentence, Potter's testimony was that in October, 1985, Respondent said Muskatello had not worked for him in the last four months; third sentence rejected as contrary to the finding that Respondent told Potter that Muskatello worked for Respondent through 1985 (although the transcript of the final hearing will reflect that Potter's testimony was not presented in a clear and readily understandable manner); last sentence subordinate to facts found. Subordinate in part to facts found and in part to facts contrary to facts found. Again, the transcript of the final hearing will reflect that Potter's testimony was not presented in a clear and easily understandable manner. It is equally clear that the facts found could have been proved more easily by evidence in addition to Respondent's admissions. But, as found, the evidence as a whole was sufficient to prove both that Mrs. Rizk was not a nurse, licensed or unlicensed, and that Respondent did examine or treat female patients in the year ending approximately February 2, 1986, without a licensed physician or nurse, licensed or unlicensed, being in attendance. Rejected as contrary to facts found. COPIES FURNISHED: David D. Bryant, Esquire 1107 D. Jackson Street Suite 104 Tampa, Florida 33602 Salvatore A. Carpino, Esquire FREEMAN & LOPEZ, P.A. 4600 West Cypress Avenue Suite 410 Tampa, Florida 33607 Dorothy Faircloth Executive Director Board of Medical Examiners 130 North Monroe Street Tallahassee, Florida 32399-0750 Van Poole Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Joseph A. Sole General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
Findings Of Fact Petitioner, Dr. Erb Fontenot, has been associated with Florida State University (FSU) for over 14 years, after having taught for 14 years in public schools in Louisiana, and two years at the University of West Florida in Pensacola. He originally enrolled at FSU to complete his PhD and simultaneously was hired as an instructor on the faculty of the College of Education. His written appointment to the faculty for the academic year 1975- 1976 was as a non-tenured faculty member at the rank of instructor in the College of Education, Department of College- Wide Instructional Services. The document reflected the special terms or conditions of employment as follows: To teach such courses as are assigned. To conduct research of a publishable quality. To render such other services as the Department, College, or University might assign. The Dean of the College of Education in 1975 was Dr. James L. Gant, who served in such capacity from 1974 to 1983. In 1975, Dean Gant had two associate deans who served with half-time teaching duties and half-time administrative work in his office. Petitioner was also assigned administrative duties half-time as Special Assistant for Academic Affairs and Personnel Relations and the remaining half of his time for instructional duties as assigned. There was also a Director of Planning in the Dean's office who similarly performed administrative duties half-time and teaching duties half-time. During succeeding years, Dean Gant periodically reassigned his staff as the need arose or upon the request of staff members. As a result, re-assignments occurred from time to time which were within the discretion of the Dean. At the time Dean Gant assumed his duties as Dean, the position of Special Assistant for Academic Affairs and Personnel Relations was not a full-time administrative position even though it was so designated in the college's 1972 organizational guide. However, Petitioner testified that during the period preceding Gant becoming Dean of the college, he (Petitioner) was a full- time administrator who taught perhaps one or two courses each semester. His testimony was uncontroverted in this regard and is accepted. Petitioner's contracts after 1976 show appointment Modifier B which is for courtesy faculty status. "Courtesy" faculty is defined in Rule 6C-5.105(1)(i), F.A.C., as "those appointments to a departmental faculty which do not include compensation, may include special faculty privileges such as voting in departmental affairs, and are made in accordance with regular faculty qualifications. . . ." Testimony at the hearing shows that such a status normally involves teaching in a department of a college other than that to which the faculty member is assigned. (Testimony of Petitioner, Gant, Kropp, Edwards, Petitioner's Exhibits 17, 19, Respondent's Exhibits 4-5) At a time undisclosed by the evidence, Petitioner received his doctorate degree and was awarded the academic rank of assistant professor. His employment contract for the 1978- 1979 academic year reflects that he was in a tenure-earning appointment and classified as Director and Assistant Professor under Class Code 9082. The contract reflected special conditions of employment were for him to serve as Special Assistant for Academic Affairs and Personnel Relations. The Instructional and Research Class Code 9082 under the title Director and Assistant professor is described as follows: An academic employee who shall hold the qualifications of the rank of 'assistant professor' and whose major responsibility is the administration of an academic/county research center, institute, or inter- disciplinary function or budgeted entity. This position, being an academic function of the university, is funded by the instructional and research budget and is a faculty class. Under Article VI of the Florida State University Constitution (Rule 6C2-1.04(6), F.A.C.), an assistant professor is considered ineligible for tenure or for re-appointment beyond a seven year maximum. A prerequisite for consideration for tenure is that the faculty member hold the rank of associate professor. (Petitioner's Exhibits la, 15a) Petitioner's contracts for the 1980-1981 and 1981-1982 academic years were basically the same as that for the 1978-1979 academic year. (Petitioner's Composite Exhibit 18) Several years before Petitioner had reached the time when he would be subject to dismissal if tenure had not been obtained, Dean Gant had several discussions with him concerning his status at the university. Petitioner had not been promoted to associate professor and therefore was then ineligible for tenure consideration. Dean Gant pointed out to Petitioner the fact that he needed to conduct the necessary research and teach more in order to be able to meet tenure requirements which could result in recommendations by the faculty and the University for tenure. Petitioner raised questions as to whether or not he could obtain tenure through his performance of administrative duties and Dean Gant indicated that such a result would be unlikely under the normal tenure process because of the necessity for approval by departmental faculty. Eventually, when it became apparent that Petitioner was not going to be promoted, Dean Gant talked with him and decided that a way of keeping him on the faculty was to take him off the tenure-earning track so that he would not be under the "up-or out" rule. (Testimony of Gant) In furtherance of his discussions with Petitioner, Dean Gant thereafter conferred with Dr. Daisy Flory, the University's Dean of Faculties concerning the possibility of retaining Petitioner by placing him in a non-tenured administrative position in order that he could have time to work on his teaching and do research prior to returning to a tenure-earning position. She agreed with this plan and, therefore, by letter of March 24, 1982, Petitioner made a formal request to Dean Gant that his employment status be changed to reflect an administrative and service role with a courtesy rank in the Department of Childhood, Reading, and Special Education in conformity with Article VI of the University constitution. The pertinent provision which is reflected in Rule 6C2-1.04(6)(a)7a, FAC, provides in part as follows: Persons holding an administrative or service role normally hold a courtesy rank in an academic unit and shall not be subject to the rule during such service unless the academic units grant a regular tenure-earning appointment. When the administrative or service function is ended, the person shall receive upon request a tenure-earning appointment in an academic unit. The "rule" referred to in the above-cited provision is the "up-or out" rule relating to non-tenured employees. Dean Gant forwarded Petitioner's letter to Dr. Flory asking that she take appropriate steps to effectuate the change and by memorandum dated April 1, 1982 she indicated that the request had been received and filed in Petitioner's file to indicate his "changed situation." Nevertheless, Petitioner's employment contracts for the 1982-1983 and 1984-1985 academic years reflected that he was still in a tenure-earning appointment. During these years, regardless of the "changed situation", Dean Gant still considered that Petitioner was at the disposal of his academic department head for 50 percent of his time. As a practical matter, Petitioner performed most of his duties in his administrative role and taught only once or twice each term, usually in the late afternoon or evening. (Testimony of Gant, Petitioner, Flory Deposition (Respondent's Exhibit 2), Petitioner's Exhibit 5, 18) Dean Gant retired in December, 1982 and was- succeeded by Dean Bruce W. Tuckman. Dean Tuckman apparently took a different view of Petitioner's situation and considered him to be engaged in a full-time administrative position. This was evidenced by the Dean's memorandum to Dr. Gus Turnbull, University Provost, dated November 2, 1984, whereby the Dean requested that Petitioner receive a direct promotion to the rank of associate professor and tenure in the College of Education. Dean Tuckman pointed out that Petitioner's role was considered unique in comparison to other professors seeking promotion and tenure through the normal process since his heavy administrative assignment had limited his participation in departmental academic activities. Favorable action apparently was not taken on the request since Petitioner remained in the rank of assistant professor. Dean Tuckman's evaluation of Petitioner on May 7, 1985, was "outstanding" and reflected that his primary duties were in administration. In the summer of 1985, Dean Tuckman sought and obtained the approval of Vice-President Turnbull of a salary increase of $6,056 for Petitioner with the stated basis of expansion of his duties to include the office of administration, the business office, coordination of personnel matters, and part of the duties resulting from the loss of an associate dean. (Petitioner's Exhibits 4, 4a, Respondent's Exhibit 1) Dean Tuckman was thereafter assigned to other duties. Petitioner's employment contract for the 1985-1986 academic year was signed on August 7, 1985 by Dean Steve Edwards, Deputy Provost and Dean of Faculties. The contract was similar to those of past years except that it showed that Petitioner was in a non- tenure-earning status and the special conditions of employment were to serve as Director of Administration, Academic Affairs and Personnel Relations. The classification code was 9082 with title of Director and Assistant Professor. (Testimony of Edwards, Petitioner's Exhibit 1) Dr. Robert L. Lathrop was named Interim Dean of the College of Education and assumed those duties on or about September 1, 1985. His previous position had been as Director. for the Center for Studies in Vocational Education, a research organization attached to the College of Education. At the time Dean Lathrop was appointed, the Vice-President of the University, Dr. Turnbull, was engaged in a major strategic planning activity whereby he assigned to all of the college deans the requirement to develop a strategic plan setting major goals for the next five years and securing faculty consensus on those goals. The College of Education was perceived by the administration as being disorganized with the faculty having a lack of confidence in its administration. Accordingly, one of the major roles that Dean Lathrop was charged with by the Vice-President was to restore faculty confidence in the governing structure of the college. After looking into the situation and talking with the individuals who had leadership roles, including the staff and department heads of the college, Dean Lathrop determined that he needed to bring more active faculty representation into the administration of the Dean's office. To this end, he appointed two half-time associate deans from the senior faculty of the college. He examined the functions that Petitioner had been assigned under the prior Dean and his manner of performance. He found that department heads had not received their budget statements for a considerable length of time, that personnel actions had often been delayed and that it was difficult to get decisions in this respect. Dean Lathrop concluded that Petitioner had been assigned too many responsibilities. He also determined that he needed to take over personal control of the distribution of the budget and distribution of faculty assignments in order to exert real leadership in the college. It is important that the Dean be able to move the faculty around where they are most needed and, since there are a limited number of positions, the more utilization he makes of personnel for administration, the less there are for teaching. He therefore determined that all members of the Dean's staff, with the exception of one person who had a commitment from the former Dean, should carry half-time assignments in the Dean's office and half-time assignments in an academic department. (Testimony of Lathrop) Dean Lathrop met with Petitioner in September concerning the latter's long-range career plans, and Petitioner indicated that he desired to continue in academic administration. Dean Lathrop pointed out to him that there is no tenure in an administrative position and that he should give some thought to working toward tenure during the period that the tenure "clock" had stopped running for him and he should utilize this period of time to pursue activities related to obtaining tenure. At this time, Petitioner offered to perform whatever function in the new administration that Dean Lathrop regarded as being appropriate to the needs of the college. Later, Dean Lathrop met with the members of his staff individually, including Petitioner and announced his plans for their assignments. Although Dean Lathrop did not recall that Petitioner voiced any serious objections at that time, he later became aware of a memorandum from Petitioner to the President of the University dated September 24, 1985, in which he protested the reduction and reassignment of some of his former duties and transfer of staff and clerical personnel. Petitioner characterized the reorganization as being retaliatory, punitive, unethical, subversive, and racially motivated. He further requested that an immediate investigation be conducted of the activities and actions taken against him. (Testimony of Lathrop, Petitioner's Exhibit 7) By memorandum of September 25, 1985, Dean Lathrop advised Petitioner of his assignment change as follows: This is in confirmation of my verbal change of your assignment about which I informed you in our conversation of September 18, 1985. Effective that date, I relieved you of responsibilities associated with the Director of Administration portion of your assignment. For the remainder of the academic year I ask that you continue your responsibilities with respect to Affirmative Action, grievances and as ombudsman. This should free up approximately 50% of your time this Fall which may be useful in preparing to assume that proportion of time in your academic department next Spring. Thus, your Spring assignment would be 50% Dean's Office and 50%. Childhood Education. A further memorandum, dated September 27, 1985, made reference to Petitioner's memorandum of September 24 and expanded more specifically on the reassignment of duties with reference to a listing of responsibilities for the Director of Administration and Director of Academic Affairs and Personnel Relations, as contained in the college Guide to Organization, Internal Policies, and Some Procedures. This was a compilation of various policies and duties of positions that had been issued during the time when Dr. Gant was the Dean. However, the description of duties for a particular position was designed to assist personnel of the college in ascertaining the division of assigned responsibilities in the dean's office. They are not position descriptions as contemplated in the career service system because faculty members are not career service employees. Dean Lathrop's memorandum explained that he had distributed the former responsibilities of the Director of Administration portion of Petitioner's former responsibilities for the conduct of the college's business office and word processing centers to himself, department heads, and other staff personnel. These responsibilities had included fiscal management of college funds, personnel actions, and space utilization. The staff position of Director of Academic Affairs and Personnel Relations carried an "ombudsman" role and recommendations to the dean on faculty promotion and tenure, faculty student relations, liaison with university staff offices, affirmative action matters, and various other college administrative functions. These responsibilities were considerably scaled down, as indicated in Dean Lathrop's memorandum. Generally, Petitioner's remaining duties consisted of student matters, affirmative action and minority programs, assisting in the election process for college committees, and monitoring compliance with the Family Educational Rights and Privacy Act and the Administrative Procedure Act. By memorandum dated October 1, 1985, to Dean Lathrop, Petitioner requested that they meet with Dr. Edwards and Dr. Groomes concerning his situation, but there is no evidence that such a meeting took place. (Testimony of Lathrop, Petitioner, Petitioner's Exhibit lb, 8-9, Respondent's Exhibit 6) Petitioner contends that he has always been a member of the Professional Staff of the university and as such has the assurance of annual recommendation for re-appointment in his administrative position. Article VII of the Florida State University constitution, which appears in Rule 6C2-1.04(7), FAC, states pertinently as follows: . . .those persons within a college or school holding academic appointments whose responsibilities do not include teaching, shall be considered members of the Professional Staff. Members of the Professional Staff having appropriate qualifications and responsibilities shall be assigned faculty rank by the President of the University on recommendation of their administrative officers for the purpose of membership in the General Faculty. Members of the Professional Staff shall enjoy the assurance of annual recommendation for reappointment in accordance with policies recommended by the Heads of their respective units and approved by the President of the University and Board of Regents. There are three categories of employees at Florida State University under three pay plans. These are Career Service employees, Administrative and Professional (A&P) employees, and faculty employees. All faculty employees, including those performing substantial administrative duties such as Petitioner, are in the faculty pay plan. Members of the Professional Staff are not in the faculty pay plan, although they hold academic appointments and are assigned faculty rank under Article VII of the university constitution. All members of the Professional Staff are under the A&P pay plan, but all A&P employees are not members of the Professional Staff. A&P employees are traditionally administrative personnel, such as those assigned to the offices of student affairs, business operations, comptroller's officer, admissions, registrars and the like. "Professional Staff" under Article VII of the constitution was a category initiated to cover librarians. These individuals were not members of the faculty and therefore the constitutional provision provided a way to hire professionally trained individuals under conditions that they would find acceptable by the assignment of academic rank. These individuals are not under the faculty pay plan and are not members of the faculty in that sense. Petitioner's status is determined by the Class Code 9082, and he is not a member of the Professional Staff. If he returned to full-time teaching duties, as is usually the case with faculty administrators, he would be under a different class code. (Testimony of Edwards, Parry, Flory Deposition, Respondent's Exhibit 2, Petitioner's Exhibit 2) As a faculty member whose responsibilities included administrative responsibilities involving supervision over other employees by virtue of his designation as a "Director," Petitioner's Class Code 9082 was not covered under the collective bargaining agreement between the state university system of Florida and the United Faculty of Florida. However, University officials and Petitioner acknowledge that the principles embodied in the agreement are ordinarily applied to other faculty personnel, such as Petitioner, unless modified by the Dean of the College. Article 9 of the Collective Bargaining Agreement provides that annual assignments of employees shall not be imposed arbitrarily or unreasonably, and provides for a procedure to resolve assignment disputes. However, these provisions deal with disputes filed prior to the effective date of the assignment. In this case, Petitioner does not dispute the original assignment which was reflected in his 1985 employment contract, but with changes in the assignment that took place after its effective date. (Testimony of Petitioner, Parry, Edwards, Petitioner's Exhibit 3) The past and present University officials who testified at the hearing uniformly agree that a college Dean has the authority to reorganize and re-allocate staff functions in order to accommodate the changes that he feels necessary to efficiently supervise the administration of the college. Each Dean has a different style and, as a former Interim Dean of the College of Education put it: "The Dean can name his team." James Parry, Director of Human Resources, Personne1 Policies and Labor Relations for the Board of Regents, supported the view that a Dean can assign his personnel freely, and that the need for such flexibility is the reason why no formal position descriptions are required for faculty members. Dr. Edwards, Dean of Faculties, testified that a Dean is authorized to assign duties and to change them during the contract period. According to Dr. Edwards, the "special conditions" which are sometimes included in annual employment contracts such as that of Petitioner, are meant to place special emphasis on some part of the functions of the position. They indicate that the administrative part of the faculty members duties will be concentrated in certain areas. However, Deans can assign specific duties from the functions or titles shown in the special conditions. If there was an intent to restrict an employee solely to administrative duties, the special conditions would state "to only serve" in a particular capacity, otherwise, the duties mentioned under the special conditions portion of the contract are subject to reassignment. Also, a faculty member with academic rank must have an assignment that would permit him to perform the duties of that rank. (Testimony of Gant, Kropp, Parry, Edwards, Flory Deposition (Respondent's Exhibit 2)) During the time that Dean Lathrop was serving as Director of the Vocational Education Center in the College of Education, several situations arose that generated employee complaints. These included such matters as the reclassification of the librarian position, and the assignment of duties to a library technical assistant. The latter complaint was later withdrawn, and the reclassification action was also withdrawn after a recommendation to that effect by a university grievance committee. Although a University Equal Opportunity Committee, chaired by Petitioner, had a subcommittee look into the practices of the Education Center to determine if there was any practice of discrimination, the subcommittee found that the main problems in the center were with job classifications and funding of programs and made no findings of any discrimination. Routine personnel action requests of Dean Lathrop concerning the Education Center were reviewed by Petitioner prior to decisions by the Dean. These included matters such as recommendations for salary increases, promotions, establishment and reclassification of positions, and layoff actions. As can be expected, some of Lathrop's requests were approved and some disapproved. Petitioner is of the view that because he recommended disapproval of some of the requests, Lathrop was biased against him and that this resulted in his reassignment of responsibilities in 1985. Dean Lathrop denied any such personal feelings and there is no evidence to establish Petitioner's claims in this regard. In fact, Dean Gant testified that, during his tenure, Lathrop had managed the Center in a very competent manner, protected employee's rights, and never evidenced any discriminatory intent or retaliation against anyone. (Testimony of Petitioner, Lathrop, Gant, Respondent's Exhibits 1la-c, 12-13) Petitioner performed his administrative duties prior to the 1985-1986 school year in a creditable manner. Dean Gant characterized his performance as "excellent" and Dean Tuckman gave him an "outstanding" evaluation during the 1984-1985 school year. (Testimony of Gant, Petitioner's Exhibit 4a, 6) It is agreed by the parties that Petitioner's salary, leave, health and medical or retirement benefits under the 1985- 1986 contract have not been reduced. (Prehearing stipulation)
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 Whether respondent FGCIA should reinstate petitioner as its director or acting director and give her back pay from August 31, 1978, because FGCIA terminated her employment as of that date on account of her race?
Findings Of Fact Jan Marie Tuveson, became the third person to go to work for the FGCIA, although she is not an Indian herself. In February of 1974, she began doing secretarial work and generally assisting Osley Saunooke and John L. Chaves, at the time the FGCIA's director and assistant director, respectively. With Mr. Saunooke's resignation later the same year and Mr. Chaves' resignation in May of 1975, all of the Council's staff work fell to Ms. Tuveson and a secretary whom she hired after consulting the cochairmen of FGCIA's Board of Directors. CODIRECTOR About four months after Mr. Chaves' departure, Ms. Tuveson assumed one of two newly created program coordinator positions. She was seen as "representing" the Miccosukee Tribe, while the other program coordinator, originally Steve Bowers, was seen as representing the Seminole Tribe. Together the program coordinators were to act as codirectors of the FGCIA. In September or October of 1975, Joe Billie succeeded Steve Bowers as codirector. An extremely likeable person, Joe Billie, a Seminole Indian for whom English is a second language, did not spend much time at FGCIA's Tallahassee headquarters. As a result, Ms. Tuveson had almost full responsibility for the staff work of the FGCIA, after Joe Billie became codirector. During this period, she worked on behalf of and dealt with not only Buffalo Tiger and the Miccosukee Tribe, but also the Seminole Tribe, Mike Tiger, Joe Dan Osceola and other Seminole Indians. According to uncontroverted testimony, she treated the tribes "equally." CETA PROGRAM DIRECTOR Shortly after becoming program coordinator, Ms. Tuveson proposed to FGCIA's Board of Directors that FGCIA apply for funds under the Comprehensive Employment and Training Act (CETA). With Howard Tommie, chairman of the Seminole Tribe and cochairman of the FGCIA, dissenting, the Board approved the suggestion, Ms. Tuveson went forward with preparation of a grant application, and a CETA grant was awarded. Ms. Tuveson established and, as CETA program director, oversaw the program funded by the grant. Mr. Tommie's objection to the proposal was that money which, at least in his view, might otherwise have been routed to the Seminole and Miccosukee tribes exclusively was not being administered by the tribes and was being made available to other American Indians, as well. Later Mike Tiger came to share this view as did Joe Billie, who had originally said a CETA grant would be a good idea. Mr. Tommie also felt that administration of a CETA grant would be "a hectic responsibility," Petitioner's Exhibit No. 12, p. 42, for FGCIA. JOE BILLIE RESIGNS At a special meeting of the Board of Directors on November 21, 1977, Joe Billie resigned his position with the FGCIA effective November 25, 1977. Expense account irregularities occasioned the resignation, but Howard Tommie resented Mr. Billie's leaving. According to the minutes of the special meeting: The meeting was then directed to the discussion of the appointment of a new Codirector. Howard Tommie ... felt there should not be a designated Codirector for the Miccosukees or the Seminoles. Bob Travis agreed that each Codirector should be obligated to work for both Tribes. Howard Tommie stated the struc- ture should be changed to suit a state agency because of the fact that the Council now works with all Indians in the State of Florida, not just the Tribes. Petitioner's Exhibit No. 2. Other board members expressed other views, but the position Joe Billie left vacant was not filled, and a board member "directed the staff to prepare alternative organization structures and job descriptions." Petitioner's Exhibit No. 2. REORGANIZATION At its December 6, 1977, meeting, the FGCIA Board decided on organizing staff into an executive director, a deputy director, two program coordinators and a "Secretary III/Bookkeeper," Petitioner's Exhibit Nos. 4 and 5, but the positions were not filled at that time. Although "on the same level as the Deputy Director," the program coordinators were to report to the deputy director, as well as "to the tribes and [were to] be located at the Tribal headquarters most of the time." Petitioner's Exhibit No. 4. On the subject of job descriptions, Joe Wilson, who "was present at the [November 25, 1977] meeting for the Department of Community Affairs as a representative of Mr. Robert Guttman instructed the staff . . . to add the Indian preference in order not to discriminate." Petitioner's Exhibit No. 2. Among the policy changes effected at the December 6, 1977, meeting, was addition of a personnel policy in these words: Preferential consideration will be given to federally recognized Native American appli- cants and/or those with experience in Native American programs. Petitioner's Exhibit No. 4. The Board did not adopt specific job descriptions for the positions decided upon at the December 6, 1977 meeting. ACTING DIRECTOR When the FGCIA Board met on June 23, 1978, it was generally acknowledged that Ms. Tuveson had been FGCIA's acting director for some time. Board member Robert Mitchell, for example, remarked, "Up to the present time you could say that Jan is the real Director, or Executive Director . . . ," Petitioner's Exhibit No. 7, and another board member thought it might be official: "I think we may have given Jan the title of Director. I don't remember." Petitioner's Exhibit No. 7. But, after further deliberations by the board, member Robert Travis' motion to "unhire" Jan as Director and place the [executive director's] position vacant and then Jan would apply for the position along with everybody else," Petitioner's Exhibit No. 7, carried. Later in the same meeting, according to the minutes, Joe Dan Osceola directed the meeting to clarifying whether or not Jan Tuveson would remain as Acting Director for the Council until someone is hired permanently. Ms. Tuveson stated that she would. Joe Dan Osceola made a motion to make Jan Tuveson Acting Director. Cochairman Tiger seconded the motion and it carried unanimously. Although she had acted as FGCIA's director for almost two years and was officially named acting director when the board met on June 23, 1978, it was at this same meeting that Ms. Tuveson first began to fear for her continued employment. Several members of the board expressed the view that FGCIA should hire staff, including CETA program staff, who were of American Indian extraction. Ms. Tuveson herself remarked, during the meeting, "I think that is the intention of the personnel committee that any position that is vacated should be filled with a Native American . . ." Petitioner's Exhibit No. 7. Board member Joe Dan Osceola explained his position: So I say with the Indian programs any Indian program which is designed for the Indians in the law states that it should be run as such, meaning Indians should be in that position. The non Indians, no matter what color it is, there is going to be a time when you all are going to have to switch over to another job. . . . So I believe in Indian movement, I mean if we don't who is going to do it. It has to be the Indians who do it. So, I wish Jan was an Indian, really. Because she has done a good job. Petitioner's Exhibit No. 7. Board member Jo Ann Jones stated, "Any program now in our area should be all Indians." Petitioner's Exhibit No. 7. NATIVE AMERICAN DIRECTOR At its next meeting the FGCIA Board of Directors chose Joe Allen Quetone as executive director of the FGCIA, and voted him a starting salary of $20,000 per year. Mr. Quetone, who is a Native American and a member of the Kiowa tribe of Oklahoma, began as executive director on September 1, 1978, a week after his selection. He has held the position since, and nothing in the evidence suggests that he has done anything other than an exemplary job as executive director. Beginning March 17, 1977, he had worked at FGCIA's headquarters in a CETA position for which Ms. Tuveson had recruited him. A 1973 graduate of Florida State University in philosophy, he began, but did not finish, some graduate public administration courses, before starting at FGCIA. He served as a noncommissioned officer in the U.S. Army, was a paid assistant to a student body president while in college, worked at a car wash and a pizza parlor, tended bar, worked at the Florida Construction Industry Licensing Board as a mail clerk; and, for the year and a half or two year period next preceding the move to FGCIA, worked for the Florida Human Relations Commission. INDIAN PREFERENCE The board went forward with the selection on August 25, 1978, despite the suggestions of Cochairman Mike Tiger and board member Robert Travis that the decision be put off. Cochairman Tiger reported Bob Mitchell's request for deferment, and Jim Hutchinson's request for a postponement, which was stated in a letter and related to the board in his absence, Petitioner's Exhibit No. 1, p. 91, also proved unavailing. A three-member personnel committee had recommended Jan Tuveson, Joe Quetone and Henry A. Williams, Jr., as "highly qualified" to serve as Executive Director. Robert Travis reported on the personnel committee's work to the eight board members present, on August 25, 1978, and described the committee's criteria or "formula" as basically the same thing we've always been talking about; one dealing with the educa- tional background of the person, experience factors, and an Indian preference. Those are the three, or at least the three major things that the committee considered..... Petitioner's Exhibit No. 1, p. 94. The board first voted to eliminate Mr. Williams from consideration, them voted to promote Joe Quetone to Executive Director. The FGCIA board chose Mr. Quetone over Ms. Tuveson on the basis of their respective racial origins. Other factors may have entered in, as well. Published reports of the possibility of a lawsuit on race discrimination grounds did not endear Ms. Tuveson to certain board members, see, e.g., Petitioner's Exhibit 1, p. 108-111; and Howard Tommie, among others, seemed still to harbor resentment over the establishment of the CETA program. At least one board member feared a schism between the Seminole and Miccosukee tribes. Mr. Travis remarked: I think Jan kept the Council together. My preference is I would prefer to vote for her; but, if that vote will cause a split between the S[e]minoles and Miccosukees, and the organizations, the staff she is supposed to help, then my overall concern is for the Indian people. Petitioner's Exhibit No. 1, p. 144. Mr. Travis was one of six board members who voted for Mr. Quetone. Two members abstained. Joe Dan Osceola explained his position: I'm not against white people, believe me; black, or anybody, even other Indians.... There's Indian programs--there's such a law as Indian Preference Law. There used to be a policy; but it's a law as of 1967.... I know a lot of you don't share my opinion. ... Petitioner's Exhibit No. 1, p. 122. Mr. Osceola may have been referring to an informal legal opinion which John Chaves, himself raised as an American Indian, had given as legal counsel to the FGCIA's CETA program, to the effect that the FGCIA could not lawfully implement an Indian preference. FGCIA had nevertheless adopted such a policy, although, over objection of the Seminole and some other board members, the phrase "and/or those with experience in Native American programs" had been added. (During the federal trial, Mr. Tommie testified that he did not think Ms. Tuveson had such experience. Petitioner's Exhibit No. 12, p. 52) At least one other board member adhered to the FGCIA's preference policy in the course of the selection process on August 25, 1978. Petitioner's Exhibit No. 1, p. 135. Ms. Tuveson testified that jokes about her race that various Seminole members of the FGCIA's board had made from time to time seemed much less amusing in retrospect, after the August 25, 1978 vote. NO OFFER After it was decided that Mr. Quetone would begin work on September 1, the Board began to turn to other matters, when an "Unidentified Female Voice" inquired: Mr. Chairman? Before we start discussing the future business, do you think it's possible we could get some clarification as to Jan's termination date? Petitioner's Exhibit No. 1, p. 176. The cochairmen responded and Joe Dan Osceola expressed his views: COCHAIRMAN TIGER: All right. They need that, too; otherwise, we'd have to do something, because--I mean, she's still on the payroll. COCHAIRMAN TOMMIE: I think one takes care of the other. Do you want to go on record as terminating Jan Tuve- son as our director? ... Petitioner's Exhibit No. 1, p. 176. JOE DAN OSCEOLA: ... You have a certain day that when somebody has come in that you are supposed to move out of their office ... You clean out your table and desk and everything else because another guy is taking your place. I really can't see all this question on this. Petitioner's Exhibit No. 1, p. 177. After a confusing colloquy, Joe Dan Osceola raised the question whether Ms. Tuveson was "quitting the Council": JO ANN JONES: I know what you're saying. She's going to get the pay for those two weeks. COCHAIRMAN TOMMIE: Yes, if she wants to stay on the payroll for an extra two weeks, then we've just got to make the provisions... Petitioner's Exhibit No. 1, p. 180. COCHAIRMAN TIGER: I think we understand where we stand. ... JAN TUVESON: Effective September 1st, I am on two weeks' notice; right? CO-CHAIRMAN TIGER: No. Petitioner's Exhibit No. 1, p. 181. JOE DAN OSCEOLA: Is she quitting the Council? That's one part I'm not familiar with, if she's quitting. That's one thing I haven't heard from Jan, that she's not going to be (inaudible) for Miccosukee or (inaudible). That's one thing I don't know. JAN TUVESON: (Inaudible) I'm not (inaudible) coordinator right now, Joe, and I'm acting director. JOE DAN OSCEOLA: Yes, that's what I know. JAN TUVESON: And I haven't been offered the position of coordinator, which would be ludicrous in my opinion, anyway, since it would be a backward step for me. But, the point is, I think, on September 1st, am I to be given two weeks' paid notice? Or am I not to be given any notice at all? Petitioner's Exhibit No. 1, p. 183. Neither the Board of Directors as a whole nor any individual board member offered Ms. Tuveson employment in any capacity beyond August 31, 1978. EDUCATION AND EMPLOYMENT A 1972 graduate of the University of Texas, with a major in English, Ms. Tuveson also attended Catholic University of America in Washington, D.C. as an undergraduate. After graduation, she worked as assistant manager and advertising director for "Hook'm Horns Night Club" in Austin, Texas. In Tallahassee, she worked as public relations assistant to the Sesquicentennial Committee and then for a department store, also in public relations; at Gayfer's, she had supervisory responsibilities, worked on a budget, and wrote copy for radio, television and newspapers, Petitioner's Exhibit No. 8, at a salary of $8,000 to $10,000 a year. She began taking graduate courses at Florida State University after she went to work for FGCIA, first in mass communications then in public administration, but did not earn a degree in either field. After she left the employ of the FGCIA, Ms. Tuveson sent out 25 to 30 applications for jobs and had several interviews. In every interview the matter of her losing her job at the FGCIA arose. Receiving no job offers, she applied to law school in October of 1978, and began in January of 1979. She graduated from law school at Western State University in June of 1981, finishing an accelerated program which left little time for gainful employment. She did not work the whole of the year 1982 partly because she was ill and partly because she took time off to study for a bar examination, which she has never succeeded in passing. She was employed in 1983 in the legal department of the Alamo Savings & Loan Association in San Antonio, Texas. In May of 1984 she moved back to Tallahassee and found work at Electronic Communications. During 1977, the last full year Ms. Tuveson worked for FGCIA, she was paid $18,736.23. The following year FGCIA paid her $15,948.70 for the work she did from January 1, 1978 through August 31, 1978, representing an annual rate of $21,264.93. Her 1979 income totalled $1,818.97. In 1980, Ms. Tuveson's income fell almost to nothing. She earned approximately $2,500 in 1981, and about the same in 1982. Her 1983 income was $10,832.38 and she made $11,526.87 in 1984. At the time of the hearing she was still working for Electronic Communications. Petitioner's proposed recommended order and respondent's proposed findings of fact, conclusions of law and recommended order were filed on August 12 and 13 1985, respectively. Proposed findings of fact have been adopted, in substance, to the extent they are supported by the weight of the evidence, except where they are cumulative, subordinate or immaterial.
The Issue The issue in this case is whether a statement of Respondent's, which informed Petitioner of his right to seek judicial review of an administrative decision Respondent deemed outside the purview of the Administrative Procedure Act, constitutes an agency statement of general applicability that implements, interprets, or prescribes law or policy in violation of section 120.54(1)(a), Florida Statutes.
Findings Of Fact Petitioner Philip Carter was, at all relevant times, a student at Florida International University ("FIU"). Located in Miami, Respondent FIU is a public university within the state university system of Florida. The Florida Board of Governors oversees the state university system, and each public university, including FIU, is administered by a board of trustees whose powers and duties the Board of Governors establishes. Carter claims that FIU has caused him injury by, among other things, improperly using or disclosing personal or confidential information gleaned from his educational records. He believes, as well, that certain documents in his student file should be amended to correct alleged inaccuracies. FIU denies Carter's allegations, and, each time Carter has pursued an administrative remedy, FIU has declined to grant him relief. On one such occasion, by letter dated March 23, 2015, FIU denied Carter's request for a hearing concerning various matters relating to his student records. This letter concluded with the following notice of right to judicial review: Please be advised that this decision constitutes final agency action of the University, and that no further action will be taken by the University on these matters. You may seek judicial review of this final University decision pursuant to Florida Rule of Appellate Procedure 9.190(b)(3), applicable to review of quasi-judicial decisions of an administrative body not subject to the Administrative Procedure Act, by filing a petition for certiorari review with the appropriate circuit court within thirty (30) days of this final University decision. If you seek review with the court, you must also provide a copy of the petition to [the] Clerk of the University . . . . (Emphasis added.) Carter alleges that the underlined sentence above is an unadopted rule.1/
Findings Of Fact The following are facts set forth in the pre-hearing stipulation of the parties: Petitioner, Dr. Bachynsky, has been a duly licensed Medical Doctor in good standing in the State of Texas since 1973, and currently practices medicine in Houston, Texas, under a valid license issued by that state. (Petitioner's Composite Exhibit 4) Dr. Bachynsky received his Ph.D. in Chemistry from Baylor University in Dallas, Texas, in 1968 and his Degree of Doctor of Medicine from the University of Tennessee Medical School, Memphis, Tennessee, in 1971, where he was an honors student with a class ranking of 3/100. Dr. Bachynsky was a Resident in Medicine and Pathology at the Mayo Clinic Graduate School of Medicine in Rochester, Minnesota, from 1972-73 and completed his Residency in Pathology at the Baylor University Hospital and Medical Center in Dallas, Texas, from 1973-74. (Petitioner's Exhibit 7) On September 27, 1982, Dr. Bachynsky executed an Endorsement Application, seeking medical licensure by endorsement in the State of Florida, under the provisions of Section 458.313, Florida Statutes, and submitted same to the Board. The Endorsement Application was received by Respondent on October 6, 1982. A true copy of the Endorsement Application is attached hereto as Exhibit "A". During the processing of Dr. Bachynsky's application, the Board requested and received an evaluation form concerning Dr. Bachynsky completed by George J. Race, M.D., Ph.D., the pathologist-in-chief of Baylor University Medical Center, Dallas, Texas. The evaluation form was dated October 12, 1982, and received by the Respondent on October 25, 1982. Dr. Race served as the director of Dr. Bachynsky's postgraduate residency training at Baylor University Medical Center from July 1, 1973, to December 1, 1974. Dr. Race gave Dr. Bachynsky exclusively "good" and "superior" ratings on 12 of the 15 specific categories of the evaluation form. Dr. Race did not give a rating in three of the categories. However, his overall evaluation of Dr. Bachynsky was "with some reservation." A copy of Dr. Race's October 14, 1982, evaluation form is attached as Exhibit "B". On October 27, 1982, the Board requested Dr. Bachynsky to provide additional information on Dr. Race's evaluation. On November 10, 1982, Dr. Bachynsky wrote to the Board that it was his understanding that Dr. Race's recommendation "with some reservation" related to two personal incidents that occurred during Dr. Bachynsky's residency. Dr. Bachynsky stated that he had discussed these matters with Dr. Race, and that Dr. Race, because he did not know the facts and details of Dr. Bachynsky's involvement in the criminal matter during his residency, felt compelled to give his recommendation "with some reservation." A copy of Dr. Bachynsky's November 10, 1982, letter to the Board is attached as Exhibit "C." (Petitioner's Exhibit 6) The criminal matter about which Dr. Race was concerned was Dr. Bachynsky's plea of guilty to the federal misdemeanor charge of possessing stolen automobile parts of a value of less than $100.00 which Bachynsky knew in all probability had been stolen and transported in interstate commerce. A complaint was filed by the Federal Bureau of Investigation against Petitioner on August 13, 1974, charging him with transporting a stolen motor vehicle in interstate commerce. The complaint was subsequently dismissed and Dr. Bachynsky pled guilty to the misdemeanor offense on October 23, 1974, and received a two year unsupervised, probated sentence, which sentence was discharged at the end of eight months and the case was dismissed. A true copy of the Judgment and Commitment against Dr. Bachynsky is attached as Exhibit "D." In his initial Endorsement Application Dr. Bachynsky had responded "no" when asked if he had ever been convicted of a misdemeanor. Dr. Bachynsky responded "no" after a discussion with a Texas attorney, Larry R. Johnson. The attorney states that he had erroneously assumed the application of Texas law rather than federal law when he advised Dr. Bachynsky to answer "no." The Board had received an affidavit from Larry Johnson prior to its notice of intent to deny Dr. Bachynsky's application. True copies of Larry R. Johnson's letter of February 11, 1983, to the Board and his affidavit of the same date are attached as composite Exhibit "E". Subsequently, on December 7, 1982, Respondent notified Dr. Bachynsky that a copy of the misdemeanor charge and the disposition of the charge would be required before processing of his application could be completed. Dr. Bachynsky then provided the Board with this information. In addition to receiving the information provided by Dr. Bachynsky relative to the charge, the Board contacted the United States Attorney James A. Rolfe who, then as an Assistant United States Attorney, prosecuted Dr. Bachynsky on the misdemeanor charge in 1974. By letter dated January 7, 1983, U.S. Attorney Rolfe explained the disposition of the criminal charge against Dr. Bachynsky. A true copy of Rolfe's January 7, 1983, letter to the Board is attached as Exhibit "F." Dr. Bachynsky personally appeared before the Board at a public meeting on February 13, 1983, to address the Board's concerns regarding his medical licensure application. At that time, Dr. Bachynsky further discussed with the Board the circumstances surrounding his 1974 misdemeanor conviction, as well as the circumstances surrounding Dr. Race's evaluation of Dr. Bachynsky. On March 22, 1983, the Board issued its notice of intent to deny Dr. Bachynsky's application for Licensure by Endorsement. The notice suggested that Dr. Bachynsky secure more information with respect to his postgraduate training at Baylor University and his conviction and reappear before the Board. (Petitioner's Exhibit 1) Prior to Dr. Bachynsky's second personal appearance before the Board on April 10, 1983, the Board received a tape recording of proceedings in the United States Magistrate Court on the 1974 misdemeanor charge. The tape recording reveals that Dr. Bachynsky knowingly and voluntarily pleaded guilty to the charge, which was described by the U.S. Magistrate as a "minor offense under the Federal Penal Law." Also prior to Dr. Bachynsky's second personal appearance before the Board on April 10, 1983, the Board received a letter dated March 31, 1983, from Dr. Race asking that his evaluation of Dr. Bachynsky be upgraded from "Recommend with some reservation" to "Recommend as qualified and competent." In his letter, Dr. Race explained that the upgrading of the recommendation was based upon Dr. Race's reviewing additional information from U.S. Attorney Rolfe regarding Dr. Bachynsky's 1974 misdemeanor conviction. A true copy of Dr. Race's March 31, 1983, letter to the Board is attached as Exhibit "G." (Petitioner's Exhibit 2) Dr. Bachynsky personally appeared a second time before the Board on April 10, 1983, contending that he had fully satisfied the two concerns expressed in the Board's March 22, 1983, notice of intent to deny. After hearing from Dr. Bachynsky and his attorney, Respondent voted to affirm its March 22, 1983, notice of intent to deny Dr. Bachynsky's application. The following are additional facts adduced at the hearing: Dr. George S. Palmer, a medical consultant to the Board of Medical Examiners, reviewed Petitioner's application file in November 1982, and found that Petitioner met all of the requirements for licensure by endorsement. He noted, however, that before final approval of the application, "the episode concerning the 'stolen' car be cleared up." Although he had no knowledge of the details of that incident, he felt that it could have a bearing on a determination of Petitioner's moral character. Inquiry by the Board's staff to the medical boards of Tennessee and California, where Petitioner held active licenses, failed to reveal that he had ever been subject to disciplinary action in those states. It was further determined that Texas medical authorities had taken no action with regard to Petitioner's license as a result of his misdemeanor conviction. Inquiries to various hospitals at which Petitioner practiced failed to reveal any derogatory information. (Testimony of Palmer, Faircloth; Petitioner's Exhibit 5) Petitioner testified that he had been in continuous practice since 1972. He is a family practitioner with emphasis on internal medicine. He is a member of the Harris County Medical Society and Texas Medical Association. He testified that although he regretted the incident in 1974, it did not involve patients nor affect his ability to practice medicine. However, he acknowledged that the conviction had "followed me and done much damage." A number of Houston physicians submitted letters in Petitioner's behalf which attested to his superior medical qualifications, active practice, and ethical conduct. (Testimony of Petitioner; Petitioner's Exhibits 3, 8)
Recommendation It is RECOMMENDED that the Board of Medical Examiners approve the application of Petitioner, Nicholas Bachynsky, for licensure by endorsement to practice medicine. DONE and ORDERED this 10th day of January, 1984, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of January, 1984.
The Issue The issue is whether Respondent Three Rivers Legal Services engaged in unlawful employment practices with regard to Petitioner.
Findings Of Fact The Petitioner Attorney Kaimowitz was born on May 5, 1935. He attended the University of Wisconsin, served in the U. S. Army, and was a journalist early in his career. He worked to obtain voting rights for African-Americans in the Deep South as a volunteer for the Congress of Racial Equality in the summer of 1964. He attended law school at New York University and while attending law school worked for the New York Civil Liberties Union as an investigator. Upon graduating from law school in 1967, he applied for membership in the New York State Bar Association and was eventually admitted. He was employed as a staff attorney with the Center on Social Welfare Policy and Law in New York City. He was suspended from that position. In 1970 he was awarded a Reginald Heber Smith Fellowship which took him to Michigan Legal Services in Detroit, Michigan. He remained there until he took a sabbatical so that he could complete a Legal Services Corporation Research Fellowship in 1979 and 1980, which was located at the University of North Carolina at Chapel Hill. He could have returned to his employment at Michigan Legal Services but instead sued that entity. He also sued Pennsylvania Legal Services, Legal Services of North Carolina, and the Mental Health Law Project of the District of Columbia for alleged age discrimination in hiring. From December 1980 until 1984 he was employed as associate counsel for the Puerto Rican Legal Defense and Education Fund in New York and Connecticut. He left there because of a "labor dispute." In March of 1985 he was hired as director of the Greater Orlando Area Legal Services (GOALS). He was fired in 1986. He sued GOALS, and obtained a financial settlement. Subsequently he applied for jobs with Broward County Legal Services and Central Florida Legal Services. When he was turned down for those jobs, he sued both entities based on age discrimination. The action against Central Florida Legal Services ended in 1999 or 2000 with a confidential settlement involving the payment of money to Attorney Kaimowitz. At some point he also entered into a confidential settlement with Broward County Legal Services. Attorney Kaimowitz claims that the suits he filed against various legal services programs were based on his personal mission to reform the hiring practices of legal services programs, and he avers that he has been on that mission since 1980. Although he claims to have instituted these suits for altruistic motives, many of them resulted in monetary settlements that benefited him personally. None of these suits were tried to the point that a verdict resulted. After being fired by GOALS he obtained a master's in communications from the University of Central Florida in 1988. While attending school he worked as a journalist for the "Orlando Weekly," a publication targeted to African-Americans in the Orlando area. Subsequently Attorney Kaimowitz represented African- Americans in civil rights actions, including employment discrimination in the Orlando area. He was in private practice of law at that time although he had no office. In 1989 or 1990 a court assessed fees against him for engaging in frivolous litigation. Attorney Kaimowitz moved to Gainesville because his domestic partner was seeking a Ph.D. at the University of Florida. From May 14, 1999, until February 7, 2002, he worked for Alachua County as an investigator into citizen complaints of discrimination in housing and public accommodation. He was terminated from that job because of accusations of "serious misconduct." He claimed his discharge from this job was in retaliation for whistle blowing. He sued, and received a monetary settlement. He subsequently and unsuccessfully sought employment with the City of Gainesville, the University of Florida, and with the State of Florida. He had a dispute with the University of Florida based on the University's failure to publish written material that he submitted. He filed suits pro se based on age discrimination against Gainesville for failing to hire him and against the University of Florida and the Florida Board of Regents because of the publication dispute and because they refused to hire him. The suit against the Board of Regents was settled by a monetary payment to him of a confidential sum, according to Attorney Kaimowitz. In 1997, Judge Maurice Paul, a U. S. District Judge, entered an order forbidding Attorney Kaimowitz from filing pro se lawsuits in his court. Prior to 2003, Attorney Kaimowitz was disciplined by the Florida Supreme Court on two occasions. A Florida Bar report dated January 29, 2002, reported a finding on January 3, 2002, of professional misconduct. He was reprimanded for making a statement he knew to be false or with reckless disregard as to its truth or falsity concerning the integrity of a judge. He had been previously reprimanded by the Florida Supreme Court in 1998. Attorney Kaimowitz is proud that he has filed countless motions to disqualify judges. He claims he has succeeded in disqualifying, at one time or another, every judge in the Middle District of Florida, and several in the Eighth Judicial Circuit, which includes the Gainesville area. Attorney Kaimowitz agrees with the notion that he is, "the most well-known offensive personality in the Eighth Judicial Circuit," but asserts that this reputation was not fully achieved until 2004. This self-characterization is accepted based on the evidence adduced in this case. Attorney Kaimowitz suffered a hearing loss and began using hearing aids in 1992. It is found as a fact that he hears well enough to try a case, which was demonstrated in this case. At his request, counsel table was moved close to the bench. He subsequently announced that this accommodated his hearing deficiency. Attorney Kaimowitz was arrested for causing a disturbance in a Gainesville City Commission meeting in 2002. He is very proud of being arrested. On November 16, 2004, Eighth Judicial Circuit Judge Larry Gibbs Turner entered an order entitled Sentence on Judgment of Guilty of Direct and In-Direct Criminal Contempt, following a Judgment of Guilty of eight separate allegations of direct and indirect criminal contempt on October 13, 2004. This Order recited the following language: A review of the fifteen (15) volumes of the record in this cause clearly demonstrates that throughout these proceedings Mr. Kaimowitz carefully, willfully, and with calculation and premeditation abused his status as a lawyer/pro se litigant in filing repetitious and frivolous pleadings including, but not limited to, his repeated motions to recuse every judge associated with this case. Mr. Kaimowitz's most recent effort to recuse this undersigned judge was framed by his GABE KAIMOWITZ'S APPLICATION TO DISQUALIFY JUDGE LARRY G. TURNER, FROM TAKING ANY FURTHER ACTION IN THIS MATTER - LAWFUL OR UNLAWFUL - BECAUSE THE JURIST HAS BEEN AND CURRENTLY APPARENTLY IS AN EMPLOYEE OF THE FLORIDA BOARD OF REGENTS, AND/OR ITS SUCCESSOR RESPONSIBLE FOR THE UNIVERSITY OF FLORIDA AND AFFIDAVIT/CERTIFICATE WITH GABE KAIMOWITZ'S APPLICATION TO DISQUALIFY JUDGE LARRY G. TURNER, FROM TAKING ANY FURTHER ACTION IN THIS MATTER - LAWFUL OR UNLAWFUL - BECAUSE THE JURIST HAS BEEN AND CURRENTLY APPARENTLY IS AN EMPLOYEE OF THE FLORIDA BOARD OF REGENTS, AN/OR ITS SUCCESSOR RESPONSIBLE FOR THE UNIVERSITY OF FLORIDA. The motions/applications seeking recusal of each of the judges in this cause provide ample evidence of Mr. Kaimowitz's "style" of litigation in which he intentionally confuses, obfuscates, insults, defames, and makes scurrilous and unsubstantiated claims against parties, judges, witnesses, and others related and unrelated to the litigation. Further evidence is found in his VERIFIED MOTION FOR ARREST OF JUDGMENT BASED ON FRAUD COMMITTED UPON THIS COURT. Beginning at page 10 of that motion Mr. Kaimowitz claims that he ". . . has learned that repeated motions for recusal as evidence pours in eventually tends to work in his favor. For instance, after Judge Jopling finally recused himself, Kaimowitz had little difficulty resolving at mediation the underlying cases. They were assigned to Judge Turner at the time, but all he did was agree to the parties' stipulated willingness to proceed to mediation." Over the following several pages, Mr. Kaimowitz recites his history of recusal litigation in other state and federal cases. Judge Turner permanently enjoined Attorney Kaimowitz from filing further pro se litigation in the county and circuit courts of the Eighth Judicial Circuit. Although Judge Turner based his finding on Kaimowitz v. The Florida Board of Regents, Eighth Circuit Case No. 01-1996-CA-3260, he noted a number of cases involving Attorney Kaimowitz going back to 1996, including Eighth Judicial Circuit Case No. 01-2003-CA-2400-A, Gabe Kaimowitz v. Gainesville, Florida, and the Gainesville Sun, in which Judge Toby S. Monaco outlined abuses as a basis for his dismissal of Attorney Kaimowitz's Complaint with prejudice. The Respondent and Its Executive Director, Allison Thompson TRLS exists pursuant to Title 42 U. S. Code, § 2996 et seq. It is governed, inter alia, by Title 45, Code of Federal Regulations, § 1600.1, et seq. Its mission is to provide equal access to the system of justice so that those who are otherwise unable to afford adequate counsel may have high quality legal assistance to seek redress of grievances. It receives funding from the Legal Services Corporation in Washington, D.C., the Florida Bar Foundation, United Way, and other local and national government sources. TRLS is headquartered in Gainesville, Florida, and serves eleven mostly rural counties surrounding Alachua County, as well as Alachua County. It works with other volunteer agencies and with pro bono attorneys. It is essential to the success of TRLS that it maintain cordial relations with the community and the bar. Ms. Thompson hires all of the TRLS management team. TRLS does not use an application form when seeking applicants for jobs. Advertisements for positions solicit resumes. TRLS does not maintain a "pool" of applicants for any particular job. The number of employees at TRLS fluctuates depending on funding. The racial, age, and gender composition of TRLS personnel from May 2003 to May 2004, was as follows: Whites 20 Blacks 19 Asian 2 Hispanic 2 Male 11 Female 32 Of the above, the oldest was born in 1947. Three of the above were born in that year. Since 2003, new attorney hires, (including law school graduates not admitted) were as follows: Whites 10 Blacks 6 Asian 0 Hispanic 1 Male 4 Female 13 Of these, the oldest was born in 1958. TRLS has hired, since Ms. Thompson has been Executive Director, at least one person who was over the age of 70. TRLS does not have quotas or a diversity plan that requires certain races, genders, or ages to be given preference in hiring. TRLS is guided in this regard by Title 45, Code of Federal Regulations, § 1616.1, et seq. Specifically, Title 45, Code of Federal Regulations, § 1616.6 requires that TRLS adopt, "employment qualifications, procedures, and policies that meet the requirements of applicable laws prohibiting discrimination in employment, and shall take affirmative action to insure equal employment opportunity." The hiring record of TRLS, taken as a whole, demonstrates compliance with this requirement and does not indicate any pattern of discrimination. Ms. Thompson has been the executive director of TRLS since 1996. She is an African-American. She graduated from the University of Florida Law School and was admitted to the Florida Bar in 1974. She has extensive experience in the delivery of legal services to the poor. She worked for Tampa Legal Services beginning in 1973. It became a Legal Services Corporation program while she was employed there. She began working for Rhode Island Legal Services in 1976, practicing primarily family law. Ms. Thompson worked for Philadelphia Legal Services for five years and then, beginning in 1982, worked for a number of years in the U. S. Virgin Islands where she was litigation director. She was appointed Executive Director of TRLS in December of 1996. Job applications with TRLS in 2003 and earlier Attorney Kaimowitz applied for a managing attorney position with TRLS in 1997. Ms. Thompson interviewed him and determined that he was an "interesting person" but was not the type of person who would work well with others. She concluded he would be difficult to manage. She noted that if she had a job which did not require working well with others, she might wish to hire him in the future. Attorney Kaimowitz applied for a job as a staff attorney in 2001. He received a letter dated May 13, 2001, from Ms. Thompson, advising him that he was not selected and that she would keep his resume on file. Attorney Kaimowitz responded to this letter with a letter dated August 15, 2001, that pointed out two settlements he had received from legal services programs in Florida based on their alleged discrimination against him because of his age. He also discussed his whistle blowing with regard to GOALS and stated, "I include this information to indicate that when there really is a will, there is a way." Ms. Thompson took this as a threat. Attorney Kaimowitz applied for a job as a managing attorney in the TRLS Lake City office in 2002. He was not interviewed for that position. TRLS advertised for a fair housing attorney and a fair housing testing coordinator in various publications during April 2003. Attorney Kaimowitz applied for both of these jobs. He interviewed with Ms. Thompson and Mary O'Rourke, a staff attorney with TRLS, on May 30, 2003. Ms. Thompson asked Ms. O'Rourke to sit in as a witness to the interview because she was concerned that Attorney Kaimowitz would sue TRLS if she did not hire him. Initially, Attorney Kaimowitz expressed an interest in both the fair housing attorney job and the fair housing testing coordinator job. However, during the interview Attorney Kaimowitz stated that he did not wish to apply for the fair housing attorney position, but wished to be considered only as an applicant for the fair housing testing coordinator position. The occupant of this position was expected to supervise individuals who would determine if discrimination in housing was occurring. Attorney Kaimowitz claimed during his testimony that he told Ms. Thompson and Ms. O'Rourke that his ability to hear was impaired. He claimed he told them he required an accommodation for his hearing loss. He stated that he had a discussion with Ms. O'Rourke during the interview about an electronic system where a court reporter would record words spoken, and the words would be displayed on a monitor so that he could read what was being said. Attorney Kaimowitz appeared at the interview wearing one hearing aid. Ms. Thompson said that Attorney Kaimowitz said that one of his hearing aids was "in the shop." Ms. Thompson testified that he announced during the interview that his hearing loss was corrected by his hearing aids. Ms. Thompson said it was clear that he had no difficulty in understanding her with only one hearing aid. In no event did she perceive him as being hearing impaired. Ms. O'Rourke stated that the conversation claimed by Attorney Kaimowitz regarding an electronic monitor system to aid hearing never occurred. Based on Ms. O'Rourke's testimony, Ms. Thompson's testimony, and Attorney Kaimowitz's credibility, which is addressed in detail below, it is found that at the time of this interview Attorney Kaimowitz did not claim the need for an accommodation based on an alleged hearing impairment and he was not perceived as being hearing impaired. Ms. Thompson wanted employees at TRLS who would maintain a good relationship with the local bar. Even though the housing testing coordinator position was not a job requiring the incumbent to be a licensed attorney, it is not helpful for TRLS to have employees who are at odds with the local bar or community. She was looking for an employee who was a team player, who could get along with the other employees at TRLS, the local bar, and with persons in the community. She also wanted someone with good references. The fair housing testing coordinator required training in Jacksonville. Ms. Thompson believed Attorney Kaimowitz could not be trained because, "He already knew everything." She believed he couldn't take orders. She was troubled because he had no references from people who had supervised him. Although attorneys who have their own practice cannot give references of supervisors, they usually can give a judge or judges as a reference, but Attorney Kaimowitz did not provide any judges as references. Attorney Kaimowitz provided a co-plaintiff in a lawsuit and a professor named Joe Little as references. Ms. Thompson called Professor Little but did not feel it would be worthwhile calling his co-plaintiff, who was embroiled in a lawsuit at the time. She was concerned because Attorney Kaimowitz told her, with regard to references, "everyone in Gainesville was suspect." Moreover, he did not provide any references from his time as director of GOALS, which was a job where he had a supervisor who could comment on his work. Ms. Thompson was aware of Attorney Kaimowitz's arrest during a Gainesville City Commission meeting, and was aware of at least one of his Florida Supreme Court reprimands at the time she decided not to hire him. She was also aware that he would occasionally write in "black English," and she found that offensive. She believed him to be a disruptive force. She stated she would not hire him if he was "the last man on earth." She stated that an equally obnoxious black man would often apply for positions at TRLS, and she would not hire him for the same general reasons that she would not hire Attorney Kaimowitz. Ms. Thompson thought Attorney Kaimowitz would be a liability to her organization. She noted that, "He makes comments without any basis. He makes sweeping comments when he knows nothing. He doesn't even check." Brenda Scafadi was eventually hired for the housing testing coordinator. She was, at the time, a 50-year-old white woman who had a disability in the form of fibromyalgia. She was not an attorney. She was hired because she was perceived to be a team player and she had good references. Ms. Scafadi resigned after about eight months and was replaced by Steve Malu, a 50-year-old Nigerian, who also was not an attorney. Attorney Kaimowitz was a person Ms. Thompson had personally known for about six years at the time of the interview. She also knew about him from his letters to the "Gainesville Sun" and numerous e-mails he sent to her and to others. She was aware of his reputation in the community. She refused to hire him because she did not believe he would be a good employee. Neither his age, nor his race, nor his claimed hearing loss was a factor in her decision. Attorney Kaimowitz received a letter from Ms. Thompson dated July 22, 2003, advising him that she had, "decided to offer the position to different applicants who I thought would be more appropriate for our needs." The Americorps positions On August 1, 2004, Americorps positions in Gainesville and Jacksonville were advertised. These jobs were targeted at inexperienced attorneys and paid "living expenses" and a promise of scholarship help rather than a salary. During the evening of August 2, 2004, Ms. Thompson offered testimony before the Gainesville City Commission. After her testimony she departed, although the meeting continued. After exiting the building, she heard footsteps behind her and turned to see Attorney Kaimowitz following her. There were no other people in the area. He stated that he wanted to "mediate our situation" but was informed by Ms. Thompson that there was nothing to mediate because she did not discriminate. She told him she was tired of him making disparaging comments about her program and her staff. Attorney Kaimowitz expressed an interest in the Americorps positions in an e-mail to Ms. Thompson dated August 5, 2004, which was in the nature of a resume. In this letter he said, "I certainly will refrain from any action I suggested I might take through this month of August, so that we can see if we can reach an accommodation in that time." Ms. Thompson regarded this as a threat. Ms. Thompson did not interview him for the Americorps positions because the "resume" e-mail of August 5, 2004, did not match the requirements of the job. Three of the positions were designed for attorneys TRLS could train so that they could recruit students from the law school to assist in the delivery of services. The other two positions required no litigation skills and were designed to provide limited legal services over the telephone to a large volume of clients. Another reason Ms. Thompson found Attorney Kaimowitz to be unsuitable for this job were statements he made to her, such as claiming she hired an "incompetent black male." She had seen, and was familiar with, another widely circulated writing in which he stated, "The real 'piece of work' is Three Rivers Legal Services, and their foolish young attorney of color Glorimil Walker, everyone's favorite minority attorney since she speaks her mind--even if it is against the adults and children at University Centre." The Americorps attorneys hired during this period, instead of Attorney Kaimowitz, included Shelly E. Beach, who was a 26-year-old white female, Melissa B. Long, a 29-year-old black female, and Julie A. Santioni, a 26-year-old white female. Ms. Thompson, and TRLS did not discriminate or retaliate against Mr. Kaimowitz in refusing him an Americorps position. He was not hired because the job was unsuitable for him and because he was unsuitable for employment at TRLS. Retaliation Attorney Kaimowitz's original claim of retaliation was based on his view that TRLS would not hire him because he had sued Central Florida Legal Services and that Ms. Thompson knew and would not hire him because of that lawsuit. Ms. Thompson denied this. Attorney Kaimowitz's second claim of retaliation was based on the complaint to the Commission concerning the refusal of TRLS to hire him for the fair housing testing coordinator position. For reasons that are abundantly clear herein, there were numerous reasons for not hiring him other than retaliation. Attorney Kaimowitz's Credibility Attorney Kaimowitz claims that he applied for the fair housing attorney position as well as the fair housing testing coordinator. Both Ms. Thompson and Ms. O'Rourke stated that at his interview he said he wished to apply only for the fair housing testing coordinator. Attorney Kaimowitz also claims that he informed Ms. Thompson and Ms. O'Rourke at his interview that he was hard of hearing and required an accommodation. Ms. Thompson and Ms. O'Rourke both said that during the interview he asserted that any hearing problems he had were resolved by hearing aids. Attorney Kaimowitz has demonstrated through his pleadings and actions in court, and before this Administrative Law Judge, that he has a low regard for the truth. As an example, he claims to believe in the equality of mankind, but during his examination of Ms. Thompson, he threw a document at her and stated that, "And then you could never find discrimination unless I don't want a nigger in here." As a consequence all issues involving credibility are resolved against Attorney Kaimowitz. That being the case, it is found by a preponderance of the evidence that he did not seek the fair housing attorney position in 2003 and that he did not assert during the interview that he was hard of hearing and thus required an accommodation.
Conclusions For Petitioner: Gabe H. Kaimowitz, Esquire, pro se Post Office Box 140119 Gainesville, Florida 32614-0119 For Respondent: Carla D. Franklin, Esquire 4809 Southwest 91st Terrace Gainesville, Florida 32608
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that the petitions be dismissed. DONE AND ENTERED this 1st day of June, 2006, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of June, 2006. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Carla D. Franklin, Esquire 4809 Southwest 91st Terrace Gainesville, Florida 32608 Gabe H. Kaimowitz, Esquire Post Office Box 140119 Gainesville, Florida 32614-0119 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issue is whether Respondent violated the Florida Civil Rights Act of 1992, as alleged in the Petition for Relief filed by Petitioner in September 1999.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Ausbon Brown, Jr. (Petitioner), an African-American male was born on April 25, 1943. Petitioner filed a charge of discrimination with the Florida Commission on Human Relations (FCHR) on December 5, 1997, alleging violation by the Florida Department of Labor and Employment Security (Respondent) of the Florida Civil Rights Act of 1992, as contained in chapter 760, part I, Florida Statutes. On August 18 1999, over 20 months later, FCHR issued a "Notice of Determination: No Cause." September 27, 1999, Petitioner filed a Petition for Relief, alleging that Respondent had subjected Petitioner to discriminatory hiring practices on the basis of the race and age of Petitioner. While not identifying specific positions, the Petition for Relief contains the allegation that Petitioner applied for 244 positions within the hiring jurisdiction of Respondent. By order dated January 18, 2000, Administrative Law Judge Donald R. Alexander limited the final hearing to allegations pertaining to Petitioner's application for position number 02925, Research Associate, within Respondent's Division of Workers' Compensation. Respondent denies Petitioner's allegation of discriminatory hiring practice and contends that it hired the most qualified employee. While not specifically established at hearing, it can be reasonably inferred from the evidence that Respondent employed at least fifteen employees for each working day in each of twenty or more calendar weeks in the current or preceding year and thus is an employer within the meaning of the law. Petitioner received a Bachelor of Science degree in biology in 1965 from Florida A&M University, a Master of Science degree in wildlife and fisheries science in 1978 from Texas A&M University, and a doctorate in wildlife and fisheries science in 1991 from Texas A&M University. Petitioner's job applications reflect that from June 1965 until April 1994, he worked in various positions for the U. S. Department of Commerce, National Marine Fisheries Service. Beginning on July 28, 1995, and continuing for several years, he was employed as a child support enforcement case analyst with the Florida Department of Revenue (DOR). Petitioner is currently the supervisor of science laboratories for Daytona Beach Junior College. Respondent, in the fashion of most state agencies, periodically issues a "Job Opportunity Announcement" which describes career service positions currently available in the agency. Such an announcement was issued on January 15, 1997, for position number 002925 and read as follows: 3122 Research Associate Notes: Open Competitive. Two years of Social Science or public policy research involving Production or reports: Use of PC in Two of the following four areas: word-processing, spreadsheet, statistical analysis or graphic applications preferred. Min. Qual: A bachelor's Degree from an accredited college or university and three years of professional experience in statistics, research, analysis or program evaluation. A Master's Degree from an accredited college or university can substitute for one year of the required experience. The "Vacancy Notification/Action Form" submitted in support of the Job Opportunity Announcement, dated December 17, 1996, contains the following statement: Preferred Qualifications: At least 2 years of social science or public policy research involving production of reports; use of personal computers in two of the following four areas: word processing, the spreadsheet, statistical analysis or graphic application. A vacancy announcement published in the "Tallahassee Democrat" on January 19, 1997, contains the same statement of preferred qualifications. The preferences are consistent with the official job description for position 02925 as contained in Class Code 3122 for the class title of research associate. The class specifications also include the caveat that "additional knowledge, skills and abilities may be applicable for individual positions in the employing agency." Within Respondent's structure, Ken Baugh supervised position number 02925 and was responsible for the hiring process, inclusive of the placement of the job announcement and the vacancy advertisement. Baugh based the stated job specifications upon the Career Service Class Specifications, as well as his knowledge of the requirements to perform successfully in the position. Prior to advertising the position, Baugh developed a selection package which included a work sample test, a job description, a list of knowledge, skills and abilities, a screening criteria, application review process, and interview questionnaire. Baugh submitted the package to the Office of Civil Rights and Minority Affairs within Respondent's structure where it was approved. Such approval indicates that the package reflected a process to measure core job duties. Respondent received 115 applications for position 02925. Five applicants were interviewed for the position. All met the minimum qualifications for the position. Gary Sabitsch, a white male born on September 24, 1965, was the successful candidate. Sabitsch has a bachelor's degree and has been employed for four years by a private entity as a research associate. He performed tasks in his research associate position inclusive of governmental consulting, as well as collection and analysis of data. Sabitsch's qualifications also include experience in word processing, spreadsheets, and graphics. His computer software usage and experience also are more extensive than that of Petitioner, in Baugh's estimation. The experience of Sabitsch in the public policy or social science arena more appropriately met Braugh's expectations for the successful candidate than the experience of Petitioner which was limited to the natural science area. In his evaluation and interviews, and subsequent selection of Sabitsch, Baugh used the interview package previously approved by the Office of Civil Rights. Baugh had no previous knowledge of Sabitsch prior to the interview. Applications provided to Baugh did not have the EEOC survey portion, which permits an applicant to voluntarily reveal age and race. These portions of the applications had been previously removed prior to Baugh's perusal. Baugh's selection of Sabitsch was approved by Respondent's Office of Civil Rights. Petitioner presented no evidence that the selection process was varied so as to discriminate on the basis of age or race. Further, he presented no evidence that he met the preferred criteria noticed for the position. In summary, there is no credible evidence that Respondent's actions were a pretext for discrimination, as alleged in the Petition for Relief. Further, there is no evidence that the employment decision at issue in this proceeding was grounded on discriminatory animus in any respect, or that a discriminatory reason motivated Respondent's actions.
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, with prejudice, the Petition for Relief. DONE AND ENTERED this 8th day of June, 2000, in Tallahassee, Leon County, Florida. DON W. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (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 8th day of June, 2000. COPIES FURNISHED: Ausbon Brown, Jr. Post Office Box 289 Daytona Beach, Florida 32636 Sharon Moultry, Clerk Florida Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149 Dana A. Baird, General Counsel Florida Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149 Sonja P. Mathews, Esquire Department of Labor and Employment Security Hartman Building, Suite 307 2012 Capital Circle, Southeast Tallahassee, Florida 32399-2199
