The Issue The issues to be resolved in this proceeding concern whether an unlawful employment practice was imposed upon the Petitioner by the Respondent, based upon her race, through a denial of her tenure and resultant termination from employment, as well as whether the Petition for Relief was timely filed, and therefore jurisdictional.
Findings Of Fact The Petitioner, at times pertinent hereto, was an Assistant Professor of Business Education. She was employed by the Respondent, FAMU and had worked in that capacity for a number of years since 1988, prior to which she had been employed by the Respondent University as an instructor. The Respondent, FAMU, is a university which is a part of the State of Florida University system, administered by the Board of Governors of the State University System, as well as its own Board of Trustees. The Petitioner was employed by the Respondent since 1983. She began as an instructor but was promoted to Assistant Professor of Business Education in 1988. In January 1999, she began working in a tenure-earning position as an Assistant Professor in the College of Education's Department of Business and Technology Education. She also served as chair of the department from 1998 through 2004. Florida Administrative Code Rules 6C-5.940(1)(e) and 6C3-10.211(5)(a) allow a period of six years during which one situated as the Petitioner, in a tenure-earning position, in continuous, full-time service, must earn and be granted tenure. If tenure is not earned and granted during that period, the Respondent must give notice to such an employee that further employment beyond the end of the seventh year of employment, without tenure, is not possible. The Petitioner applied for tenure on September 17, 2004. That tenure application was denied, which engendered the dispute involved in this proceeding. Prior to that application, however, at some point during her employment in a tenure-earning position, the Petitioner had previously applied for tenure, but the previous application had also been denied. That denial was presumably with leave for her to re-apply for tenure at a later time during her six year tenure-earning time period. After the Petitioner began her employment she received a copy of the applicable tenure criteria. The tenure criteria for scholarly publication require that a tenure candidate show that at least three publications by that candidate have at least been accepted for publication or have actually been published. Publications include books, monographs, and articles in national, regional, state or local journals, which meet peer review requirements. The publication requirements also mandate additional publication credit, which may include individual citations in quotations in a text or credits for scholarly endeavors. The requirements also contain the condition that at least two papers must be presented at state, regional or national professional meetings. The Petitioner's tenure application was submitted on September 17, 2004, and included references to three publications used by the Petitioner as meeting the publication requirements for tenure: a) a project for spring 2005 entitled "Professional Report Writing" with reference to Thomson Publishing Company; b) a 2005 project entitled "English and Grammar Skills Review for Business" also with reference to Thomson; and c) a 2005 project entitled "Charles Spencer Smith," with reference to the "Oxford Press." During the hearing, in her Exhibits 10 and 11, the Petitioner presented the cover pages of two of the projects, the "Professional Report Writing" text, as well as the "English and Grammar Skills Review for Business" text, in an attempt to prove compliance with the publication requirement for tenure. There was no showing, however, that the Respondent was provided with any documentation by the Petitioner during the tenure application process showing that these publications had been accepted by publishers for any of the projects. In September 2004, the Tenure and Promotion Committee within the College of Education (COE) was composed of Chair- Person Dr. Mary Newell, Dr. Arland Billups, Dr. Bernadette Kelly, Dr. Maria Okeke, and Dr. Theresa Shotwell. Dr. Shotwell did not vote on the Petitioner's tenure application to avoid the appearance of impropriety because she was chair of the department to which Petitioner belonged at the time. The COE Tenure and Promotion Committee considered the tenure application of the Petitioner and a secret ballot was held, resulting in a unanimous vote against granting tenure. The four members who testified in this hearing stated that they were not motivated by considerations of race when they considered the Petitioner's application. Once the individual college tenure and promotion committee votes on a tenure application, the matter is elevated for consideration by the University-Wide Tenure and Promotion Committee (University Committee). That committee considered the Petitioner's application for tenure on January 18, 2005, and voted to recommend approval of the application for tenure by a vote of 10 yeas, 1 nay, and 2 abstentions. The University Committee then considered the Petitioner's application for promotion from Assistant Professor to Associate Professor, on February 23, 2005. That promotion apparently requires approval of tenure status, because the committee voted to recommend denial of the application for the promotion. During the time the Petitioner's tenure and promotion applications were pending, Dr. Larry Robinson served as the Vice-President of Academic Affairs and as Provost of the university. Dr. Robinson reviewed the Petitioner's tenure application after the University Committee and recommended against granting her tenure. His decision, according to his testimony, was not racially motivated, but rather he explained that the Petitioner's application was recommended to be denied by him because he to thought it lacked sufficient documentation of scholarly publications. The Interim President of the Respondent University during the time the Petitioner's tenure and promotion applications were pending was Dr. Castell Bryant. Dr. Bryant was responsible for making a final review or consideration at the University level, taking into account recommendations of the tenure committees reporting to her. She then had the duty to nominate for tenure, or to decline nomination, to the University's Board of Trustees. The Board of Trustees had the authority to make final decisions concerning tenure applications. The Board would not consider a tenure application without a nomination by the University President. Dr. Bryant did not nominate the Petitioner for tenure to the Board of Trustees. She informed the Petitioner by letter of June 22, 2005, that the Petitioner's application for tenure was not approved for submission to the Board of Trustees. Dr. Bryant's letter to Dr. Young, in which she denied tenure, seems to indicate that Dr. Bryant was under the misapprehension that the University Committee had voted against recommending tenure when, in fact, it had voted in favor of tenure. Nonetheless, Dr. Bryant declined to nominate the Petitioner for tenure to the Board of Trustees, which act constituted a final denial, subject to the Petitioner's review rights concerning the decision. Dr. Deborah Austin was the Provost and Vice-President for Academic Affairs after Dr. Robinson left that position in September of 2005. She was requested to review the Petitioner's tenure denial, so Dr. Austin requested a "step-one grievance" reviewer, Dr. Charles MaGee, to review the Petitioner's tenure application. Dr. McGee found that the Petitioner's application did not satisfy the College of Education's tenure criteria (concerning scholarly publications) but he did recommend that the Petitioner actually receive tenure based upon her many years of service. Dr. Austin, however, did not agree with his assessment. She stated that the requirements for tenure don't provide for a substitution of the tenure criteria concerning scholarly publications and sponsored research, for years of service. In her letter of December 5, 2005, to the Petitioner Dr. Austin stated this reason for disagreement with Dr. McGee's assessment. She informed the Petitioner that this was the second time that she had applied for tenure and that, indeed, most faculty members are not given more than one opportunity to apply for tenure at the University. In that letter she also informed the Petitioner that she could file an appeal of the decision with Dr. Bryant within 30 days of receipt of the "step- one response" or file for an Administrative Proceeding with the Division of Administrative Hearings. She also advised the Petitioner of the steps to take in order to file a request for a proceeding before the Division of Administrative Hearings. Dr. William Tucker who testified on behalf of the Petitioner, and who has participated in faculty tenure review committees during his years at FAMU, pointed out that Dr. Bryant, the Interim President, had somehow misunderstood the university committee's vote. Dr. Tucker, however, indicated that he agreed with Dr. Austin that 22 years of service does not suffice as a criterion for granting tenure, although he did not agree with Dr. Austin's conclusion on the issue of tenure. The Petitioner sent a letter to Dr. Bryant requesting an appeal of Dr. Austin's decision (to Dr. Bryant) on January 4, 2006. She enclosed with that letter the cover pages for two of her projects and indicated that she thought they would serve as documentation for two of three publications needed for tenure. On April 3, 2006, Dr. Bryant sent a letter to the Petitioner as a follow-up to a meeting between those two on March 8, 2006, regarding re-consideration of the Petitioner's tenure application. Dr. Bryant indicated in that letter that, after thorough review of her tenure application package, Dr. Bryant found no reason to reverse the tenure decision previously made. The Petitioner contends that a comparator employee, Dr. Nancy Fontaine, was given an additional year to apply for tenure when she failed to achieve tenure and that the Petitioner was not accorded that opportunity. Dr. Fontaine is white. The Petitioner thus maintains that Dr. Fontaine was treated better than she and is a comparator employee outside her protected class. The Petitioner's evidence, however, does not establish that Dr. Fontaine and the Petitioner are actually similarly- situated employees. The Petitioner was not sure why Dr. Fontaine was initially denied tenure, but stated in her testimony that Dr. Fontaine was given another year to write an article or whatever she needed to do to qualify for tenure. The Petitioner did not, however, show that Dr. Fontaine lacked the same number of scholarly publications that the Petitioner lacked at the time of the tenure application, or that lack of publications was even the reason for Dr. Fontaine's initial tenure denial. She expressed no clear information in her testimony or other evidence as to what frailty, or degree of it, attended Dr. Fontaine's tenure application which was initially denied. Moreover, the Petitioner had a six-year period, as would any university personnel in tenure earning positions, to apply for tenure and then to re-apply if tenure were not granted on the first effort. The Petitioner, however, during that six- year period did not satisfy the Respondent's written scholarly publication requirement. The Petitioner adduced no persuasive evidence to show at what point in her tenure-seeking effort Dr. Fontaine was when she was denied tenure, and then given an additional year to earn tenure. It may be that Dr. Fontaine had a substantial portion of her six-year allowable period for tenure-earning still ahead of her. The evidence does not show. In any event, although the Petitioner attempts to compare the results of Dr. Fontaine's grievance process regarding her tenure denial to the Petitioner's application process, denial, and ultimate result, by way of showing disparate treatment, the evidence still does not show that Dr. Fontaine is a similarly-situated employee. When she was denied tenure, the Petitioner asked for a review of that decision and was granted one. As a result of that review, Dr. McGee recommended her for tenure, but acknowledged that she did not meet the requirement for scholarly publication. His recommendation had no binding effect, in any event, with regard to the Provost's and the Interim President's ultimate decision on the matter. Despite his recommendation, Provost Austin and Interim President Bryant chose not to grant tenure to the Petitioner on the basis of her publication deficiencies. Dr. Fontaine, on the other hand, used the complete grievance process under the university rules to file a complaint against the university pursuant to Florida Administrative Code Rule 6C3-10.232. During this process Dr. Fontaine requested additional time to apply for and earn tenure and, as a result, in a settlement of the dispute by settlement agreement, Dr. Fontaine was given another year to apply for tenure. The Petitioner, however, although being informed by Provost Robinson in his September 1, 2005, letter to the Petitioner that she could use that process, chose not to do so. The Petitioner also conceded that she did not request additional time to satisfy tenure requirements. Therefore, the Petitioner and Dr. Fontaine are not truly comparable and similarly-situated employees in the above- referenced particulars. Parties settle litigation for many reasons. Often the motivations are grounded in practicalities, such as limitation of litigation expenses balanced against the perceived likelihood of a successful litigated result. There is no evidence that the decision by FAMU to enter into a settlement agreement with Dr. Fontaine, whereby she was accorded additional time to qualify for tenure, was predicated, in any way, on Dr. Fontaine's race. There is no sufficiently detailed evidence to support a finding that the factual circumstances of Dr. Fontaine's tenure application, and its grant-versus denial consideration, were substantially similar to that of the Petitioner's.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the candor and demeanor of the witnesses, and the pleadings and the arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered by the Florida Commission on Human Relations dismissing the Petition in its entirety. DONE AND ENTERED this 25th day of June, 2008, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF 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 25th day of June, 2008. COPIES FURNISHED: Mary L. Young Post Office Box 5452 Tallahassee, Florida 32314 Elizabeth T. McBride, Esquire Florida A & M University Office of the General Counsel Lee Hall, Suite 300 Tallahassee, Florida 32307 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Glen Bassett, Esquire Renee S. Gordon, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399
The Issue The issue for determination is whether Respondent's teaching certificate should be disciplined for alleged violation of various provisions of Section 231.28, Florida Statutes, and Rule 6B
Findings Of Fact Respondent Clayton McWilliams holds Florida teaching certificate number 653517, covering the area of substitute teaching, which is valid through June 30, 1994. He is 27 years of 1989, from Valdosta State College in Valdosta, Georgia. After a few brief months employment in retail sales in Tallahassee, Florida, Respondent returned to Madison, Florida, where he was born and lived prior to attending college. Respondent returned to Madison in August of 1989, after being contacted by the high school coach there regarding the possible employment of Respondent as an assistant coach at the high school from which Respondent graduated. He was employed in the 1989 County School Board. Subsequently, he was employed by the Board during the 1990 high school. Respondent served as an assistant coach during this period. While serving as a substitute teacher during the 1989 Respondent was responsible for a ninth grade science class. Female students M.B., R.B., J.D., and R.C., were in a group surrounding Respondent's desk, talking with Respondent. All the students in the group were curious about Respondent and asked him such questions as what are you going to coach, are you married, do you have a girl friend, and why did you come back to Madison? Respondent knew many of the students on a first name basis and, in the course of bantering with the group, responded at one point to the students' questions about his private life by asking the students about their social lives, if they kissed their boy friends with their mouths open, and if they used their tongues. There was general laughter from the students, although R.B. didn't think the question was "any of [Respondent's] business." This was the only question or comment that Respondent ever made that bothered R.B. R.B. regarded Respondent's conduct in the ensuing two years as "flirting" and "didn't ever think anything bad about it." The next year when R.B. was in the tenth grade (1990 photograph. Respondent later told R.B. that he stared at the photograph every night. When R.B. was in the eleventh grade and not a student in a class taught by Respondent, Respondent jokingly asked R.B. in the presence of D.C., her boyfriend at the time and an athlete with whom Respondent enjoyed a rapport, why she wanted to date such a "big, old dummy." There were other times that Respondent would see R.B., tell her that she looked nice, wink at her and blow her kisses. During the 1990 M.B., by asking her if she kissed with her mouth open, and would she teach Respondent how to do this. Respondent also told M.B. that she looked beautiful. M.B. was not a student in a class taught by Respondent. During the 1991-1992 school year, M.B. was a high school junior and a varsity cheerleader. Respondent continued to speak to M.B., although she was not his student, when he saw her on the school campus or at sporting events. He continued to ask M.B. about kissing with her mouth open, whether she would teach Respondent how to do this, and when could she teach him. M.B. declined to specify any time or place to meet with Respondent. M.B. did not disclose Respondent's behavior to anyone at this time. On one occasion, M.B. and other eleventh grade students, including her boyfriend, were in the high school library, ordering their class rings. Respondent became involved in conversation with the students and asked M.B. again about teaching him to kiss open would lose his job for M.B. Although he heard these comments, M.B.'s boyfriend considered Respondent to be joking. In the fall of the 1991 Wakulla County for a game which would determine whether the team could compete in the district championship playoff. Upon boarding the bus after the game for the trip home, Respondent was asked by M.B. if he was going to sit with her on the bus. He replied that he would if she saved him a seat. Respondent stored the athletic equipment which he was carrying, returned to the forward section of the bus and assumed the vacant seat beside M.B. Since the team had lost the game, most passengers on the bus were despondent. In the course of the trip, M.B. and Respondent leaned their heads against the back of the seat in front of them and Respondent talked about college and how being from a small high school had been difficult when he had attended the University of Florida before transferring to Valdosta State. Respondent had his hands between his knees as he talked and at one point placed it on M.B.'s knee or patted her knee. She, feeling discomfited by the gesture, brushed his hand away. This was the only time that Respondent touched a student where such touching was interpreted by a student to have sexual significance. Respondent testified that he patted M.B. because she acted as though "something had been bothering her" and characterized the pat as something he would give "football players or baseball players at school." Eventually, M.B. became sleepy and rested her head against the bus window. Respondent in a normal tone of voice offered to let her place her head on his shoulder, but M.B. declined. During the 1991 photographs. On the back of his photograph, Respondent wrote: M., I remember when I first saw you, you struck me as beautiful. I really think you are. You are truly special to me. Please know that I love you. Stay sweet and pretty. Love, Clayton. P.S., Please teach me sometime. Mary Rice, a teacher at the high school, began teaching there at approximately the same time as Respondent. Rice, like Respondent, was single. Rice, like Respondent, enjoyed informal relationships with some students, such as the cheerleaders for whom she served as staff sponsor. The cheerleaders, similar to many students who called Respondent by his first name, referred to Rice as "Mary". She became engaged in October of 1991 to Scott Alley, another teacher who occasionally substituted at the school. Rice and Respondent had a normal collegial relationship. Prior to Christmas of 1991, Rice and Respondent were in the school office discussing what they were getting their significant others for Christmas. Respondent told Rice that he would tell her what he was getting his girl friend for Christmas if Rice would have sex with him. Later in the day, Respondent got down on his knees in the hallway outside of Rice's classroom in the presence of students and asked Rice to "go with me before you get married". While Respondent meant that he wanted to have sex with Rice, he did not explicitly state such in the hallway. Later, Respondent sent Rice a note containing four blanks for letters. According to Rice, the note stated that Respondent would tell Rice what he was getting for his girlfriend for Christmas if Rice would " ". Rice assumed the four blanks to represent a sexually suggestive word. Rice stored the note in her desk drawer. She determined not to tell anyone about the note. In February of 1992, her fiancee, Scott Alley, discovered the note in the desk while he was substituting for Rice. He showed the note to Debra Wetherington, a school secretary, and later asked Rice about the note. Rice was startled that Alley had found the note and became upset. Later, in a telephone conversation initiated by Respondent, he discussed the note with Alley. Respondent apologized to Alley for any misunderstanding about the note, stating that he had written it merely to get a laugh from Rice. Respondent told Alley that he, Respondent, just flirted with everyone and that was "how I broke the ice with everyone." After Respondent's apology, the two men agreed to remain friends. Subsequently, the note was destroyed by Alley. Debra Wetherington, the secretary at the high school, frequently interacts with the teaching staff. Initially, Respondent and Wetherington enjoyed a good working relationship no different than those she shared with other teachers. She had known Respondent all of his life. Over a period of time, Respondent began to flirt with Wetherington, asking her about open mouth kissing. At these times, Wetherington ignored his remarks or laughed them off as a joke. When his behavior persisted, she told him that his conduct bothered her and that he should stop. She never told her husband or any one else about Respondent's attentions, hoping to resolve the matter without confrontation and embarrassment. On or about February 25, 1992, Respondent came into the school office and physically put his arms around Wetherington in a "bear" hug and, according to Wetherington, tried to put his tongue in her ear. Also present in the room were the school resource officer and another office worker. No eyewitness corroboration of Wetherington's allegation that Respondent attempted to put his tongue in her ear was offered at the final hearing and she had not reported this detail in an earlier affidavit regarding the incident. Respondent denies he attempted to put his tongue in her ear. Respondent's testimony is more credible on this point and it is not established that he attempted to put his tongue in Whetherington's ear. Wetherington later complained about Respondent's conduct to Lou Miller, the school principal. Miller called Respondent into her office, discussed the incident with him, and directed him to have no such contact with Wetherington in the future. Respondent apologized for his conduct, both to Miller and Wetherington. While Respondent and Wetherington had no further contact, Wetherington later asked another teacher, Tony Stukes, if Respondent was angry with her since she had not seen or heard from him lately. On or about March 24, 1992, Respondent saw M.B. in the hallway outside the door of his classroom while classes were changing. Respondent spoke to M.B. and told her that he had a dream about her. M.B. went to see Mary Rice, the cheerleading sponsor, who had earlier asked M.B. if she was having any problems with a teacher. Rice had taken this action following the discovery of Respondent's note in Rice's desk by Rice's fiancee. M.B. had confided in Rice about Respondent's previous flirtatious behavior toward her. Rice told her to write down future incidents. After relating to Rice the comment of Respondent about having a dream, M.B. was asked by Rice to go back to Respondent and find out more about the dream. M.B. went into Respondent's class where the students were working on a geography project. An overhead projector displayed the continent of South America on a board. Some students were tracing the projection on the board, preparatory to cutting the shape out of the board. Other groups were cutting out other continents. The lights in the room were turned on. Respondent was sitting at his desk, cutting out the Asian continent. M.B. went to a chair by Respondent's desk and sat down. M.B. was on her lunch break and was not a student in the class. However, in the context of the situation, her entry into the classroom was not that unusual. Respondent had on previous occasions entered an art class where M.B. was a student and had spoken with her or, on some of these occasions, had also spoken with the teacher in the class. After seating herself by his desk, M.B. asked Respondent to tell her about his dream. Respondent replied that he couldn't, but M.B. persisted. Finally, Respondent wrote on a piece of paper, "I had a dream about you and me." M.B. then wrote on the paper, "Well, what happened?" The rest of the written exchange is as follows: Respondent: "Well, all I remember is you were teaching me." M.B.: "Teaching you what?" Respondent: "Guess." M.B. "I don't know. Why don't you tell me what I was supposedly teaching you." Respondent: "How to kiss with my mouth open. I liked it, too. I woke up sweating and holding my pillow to my mouth." M.B. then took possession of the piece of paper on which she and Respondent had been writing, left the class and went back to see Mary Rice. M.B. discussed the matter with Rice. After this discussion, M.B.'s feelings about Respondent solidified and she determined that she detested Respondent. At Rice's suggestion, she then went to see Principal Miller. Miller and School Superintendent Eugene Stokes confronted Respondent with the note. Respondent stated he meant no harm by his conduct, recognized that he had a problem and needed help for his aberrant behavior. After a discussion of options, including suspension or resignation, Respondent thought about the matter overnight and submitted his resignation to Stokes on March 27, 1992. Respondent was told that the matter must be reported to the Professional Practices Commission. Respondent was, however, under the impression that his resignation would conclude the necessity for any further proceedings of a disciplinary nature. Until the time of his resignation, Respondent had received good evaluations. His contract was renewed annually. However, as expressed at final hearing by Miller and Stokes, they would not rehire Respondent in view of his past behaviors which now, in their opinion, would reduce his effectiveness as a teacher at Madison High School. Subsequently, Respondent was informed on May 28, 1992, that an investigation regarding alleged misconduct been instituted by the Professional Practices Commission. In August of 1992, Respondent sought and was appointed to a teaching position in Hawthorne, Florida, at the combined junior/senior high school in that city for the 1992 completion of course work for issuance of a five year teaching certificate from the State of Florida which he received in October of 1992. Dr. Lamar Simmons, the supervising principal at the school in Hawthorne, Florida, where Respondent is presently employed is acquainted with Miller. Simmons contacted Miller at the Madison High School, prior to employing Respondent. Miller informed Simmons that Respondent had been a satisfactory employee. Miller did not disclose Respondent's alleged misconduct to Simmons because she assumed Respondent was receiving professional help for his problem and that the issuance of Respondent's five year certificate indicated that further disciplinary proceedings by the Professional Practices Commission had been abandoned. Respondent later disclosed the instant disciplinary proceeding to Simmons. To date of the final hearing, Respondent continues to teach at the school in Hawthorne without apparent incident.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered finding Respondent guilty of the third, fourth, and fifth count of the Administrative Complaint, and placing Respondent's teaching certificate on probation for a period not to exceed three years upon reasonable terms and conditions to be established by Petitioner, including the following requirements: That Respondent present himself for psychological evaluation by a qualified professional selected by Petitioner. That Respondent complete such course of psychotherapy as may be prescribed as a result of that evaluation. That Respondent assume the cost of such evaluation and subsequent therapy, if any. That Respondent enroll and complete a minimum of six hours of continuing education courses in the area of professional conduct for educators. That in the event that Respondent fails to comply with any of the terms and conditions of probation, Respondent's teaching certificate shall be subjected to a period of suspension not to exceed two years, and that compliance with these conditions of probation serve as the prerequisite for any reinstatement of Respondent's teaching certificate in the event that suspension for noncompliance with these conditions occurs. DONE AND ENTERED this 1st day of June 1993, in Tallahassee, Leon County, Florida. DON W. DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of June, 1993. APPENDIX In accordance with provisions of Section 120.59, Florida Statutes, the following constitutes my specific rulings on proposed findings of fact submitted by the parties: Petitioner's proposed findings 1.-12. Accepted. Rejected as to D.C.'s feelings, hearsay. Accepted. (Note: this is the second finding numbered 13.) Rejected as to "two or three times", accepted as to touching on the knee one time, on the basis of resolution of credibility on this point. (Note: this is the second finding numbered 14.) Accepted. Accepted in substance, not verbatim. 16.-18. Accepted. Rejected as to tickling reference since no sexual significance was ascribed by M.B. to this action, she did not supply a point in time when this occurred and inclusion would imply a significance not proven at the final hearing. Rejected, unnecessary. 21.-23. Rejected, subordinate to Hearing Officer findings on this point. 24.-42. Accepted, but not verbatim. 43. Accepted as to bear hug, remainder rejected on basis of creditibility. 44.-57. Accepted, but not verbatim. Respondent's proposed findings 1.-20. Accepted, but not verbatim. 21. Rejected, unnecessary. 22.-23. Accepted, but not verbatim. Rejected, unnecessary. COPIES FURNISHED: Margaret E. O'Sullivan, Esquire Department of Education 352 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Thomas E. Stone, Esquire Post Office Box 292 Madison, Florida 32340 Karen Barr Wilde Executive Director Education Practices Commission 301 Florida Education Center 325 W. Gaines Street Tallahassee, Florida 32399-0400 Jerry Moore, Administrator Professional Practice Services 352 Florida Education Center 325 W. Gaines Street Tallahassee, Florida 32399-0400 Sidney H. McKenzie, Esquire General Counsel Department of Education The Capitol PL-08 Tallahassee, Florida 32399-0400
The Issue The issue for determination is whether Respondent committed an unlawful employment act by discriminating against Petitioner on the basis of marital status in violation of the Florida Civil Rights Act of 1992, as amended.
Findings Of Fact In June 2008, Dr. Hernandez was hired at the University as a faculty member of the School of Pharmacy in the position as a professor. She had a one-year employment agreement, with no presumption of renewal and a starting salary of $97,000.00. At all times material hereto, Dr. Hernandez was divorced. Dr. Hernandez had been divorced from her husband since 1995. The University was aware that Dr. Hernandez was divorced when she was hired. She had been recruited by the University's then Dean of the School of Pharmacy, Dan Brown, who, at that time, was also divorced. Marital status is not a factor in hiring an employee by the University. Dr. Hernandez's marital status was not a consideration or a factor in her hiring. By February 15th of each year, faculty members are notified whether their employment contract will be renewed for the following year. If a faculty member is not notified by February 15th that their contract will not be renewed, the faculty member's contract is automatically renewed for another year. Dr. Hernandez's contract was renewed for the 2009-2010 academic year. Spring 2010 Dean Brown was one of Dr. Hernandez's supervisors. For all the professors in the School of Pharmacy, Dean Brown prepared and distributed a list of all of their current work load ratios. The goal for all Pharmacy professors was a ratio of 0.8. Dr. Hernandez's work load ratio was 0.68, which was below the goal. She failed to meet the goal of the work load ratio for all Pharmacy professors. Dr. Hernandez refused to accept the work load ratio as a reliable tool of performance and considered it as irrelevant to her. She did not express or exhibit an interest in improving her work load ratio. Also, Dean Brown prepared and distributed a comparative analysis of student surveys of all the Pharmacy professors. Students were requested to score the performance of all the Pharmacy professors in 12 different areas. Based on the student surveys of faculty performance, Dr. Hernandez was the second lowest ranked Pharmacy professor. She scored very low in the following areas: "presents material in concise, organized, easy-to-follow manner" and "is an effective teacher." Dr. Hernandez refused to accept the student surveys as a reliable tool of performance and had no interest in the comparative analysis from the student surveys. Additionally, she failed to express or exhibit an interest in improving in those areas in which the students gave her a low ranking. During his supervision of Dr. Hernandez, Dean Brown received several complaints from faculty members regarding emails that they had received from her. The faculty members considered the emails to be "caustic," "obnoxious," and "insulting." As a result, Dean Brown met with her and advised her to stop sending antagonistic emails and insulting her fellow faculty members. One week later, Dr. Hernandez sent such an email to a fellow professor, Mary Ferrill, Ph.D. Dr. Ferrill was married to Dean Brown. Dr. Hernandez's email insinuated that Dr. Ferrill received special treatment because she was married to Dean Brown and asked whether she "sang and danced" for her students. Both Dean Brown and Dr. Ferrill considered the email to be insulting and confronted Dr. Hernandez. Dean Brown raised his voice at Dr. Hernandez when he confronted her because he was very upset in that he had, only a week earlier, advised her to stop sending antagonistic and insulting emails to fellow faculty members. Dean Brown admitted to the University's Human Resources Office that he was wrong in raising his voice to Dr. Hernandez, and he apologized to Dr. Hernandez. Because of the confrontation with Dean Brown, Dr. Hernandez was fearful that her contract would not be renewed. Many of the classes at the School of Pharmacy are team taught: one course coordinator with several faculty members teaching segments of the course. Essential to team teaching is faculty members exhibiting team work. Dr. Hernandez was one of the team members who taught PHR 2264, Endocrinologic and Musculosketal Pharmacotherapy. The course coordinator was Professor Dana Brown, Ph.D. Dr. Hernandez repeatedly failed to meet established deadlines for team members in PHR 2264. Exam questions from team members for PHR 2264 were to be submitted to Dr. Dana Brown two weeks before the scheduled exams. Her responsibility was to carefully review all questions, including how the questions overlapped with questions submitted by other faculty members. Dr. Hernandez failed to submit timely her exam questions, forcing Dr. Dana Brown to follow-up with Dr. Hernandez regarding the questions. Further, Dr. Hernandez would generally not inform Dr. Dana Brown ahead of time that she would be submitting her exam questions late. On one occasion, Dr. Hernandez submitted her exam questions only one day before the exam. Additionally, exam lectures were to be posted 48 hours in advance of a class. Dr. Hernandez failed to post her exam lectures 48 hours before she taught her class and, generally, posted the exam lectures the night before her class. Students complained to Dr. Dana Brown that Dr. Hernandez was difficult to understand. Dr. Dana Brown observed some of Dr. Hernandez's lectures and thought that Dr. Hernandez failed to answer students' questions. Also, on one occasion, Dr. Dana Brown, responding to an email that she received from Dr. Hernandez, hit "reply all." Dr. Hernandez became upset and raised her voice to Dr. Dana Brown because the response went to persons other than Dr. Hernandez. Dr. Dana Brown spoke to Wagdy Wahba, Ph.D., the then Interim Associate Dean, of the School of Pharmacy several times regarding the problems that she was having with Dr. Hernandez. Summer 2010 In the summer 2010, Dean Brown stepped down as Dean of the School of Pharmacy to focus on teaching. In August 2010, Dr. Ferrill became the Dean of the School of Pharmacy. Fall 2010 Faculty Activities Plan and Report The School of Pharmacy uses a performance instrument for its professors, referred to as a Faculty Activities Plan and Report (FAPR), which is, basically, an evaluation of a professor's performance in the previous year and expectations for the future. A FAPR that shows significant student or faculty concerns about teaching or collegiality is considered deficient. Dr. Wahba completed the FAPR for all faculty members of the School of Pharmacy. Dr. Wahba was Dr. Hernandez's immediate supervisor. He completed her FAPR. In October 2010, Dr. Hernandez received her FAPR from him and met with him to discuss it. In the "Dean's Comments" section for the FAPR, Dr. Wahba included the following issues that he determined that Dr. Hernandez needed to address: [a.] Not showing up for scheduled class in February 2010, and not sending the recorded lecture to the students until 21 days later. [b.] How to improve relationship, communication & cooperation with other faculty & coordinators within the team-taught courses. [c.] How to avoid reactive responses to concerns expressed by colleagues & administration, verbally and via e-mail[.] [d.] Currently not posting lectures on e- college in a timely fashion according to school policy[.] [e.] Currently not submitting exam questions to coordinators in a timely fashion[.] [f.] Showing up late or not at all to scheduled review sessions and committee meetings[.] Dr. Wahba and Dr. Hernandez discussed his comments. Additionally, Dr. Wahba noted in the Dean's Comments section that, of great concern, was how Dr. Hernandez was going to address the negative comments from students in her student surveys. The students' comments mainly revolved around Dr. Hernandez's disorganized lecture presentations and her difficulty in explaining material clearly. During the meeting in October 2010 with Dr. Wahba on the FAPR, Dr. Hernandez showed no willingness to improve in the areas that he had determined deficient. Further, she took the position that she had no deficiencies in her performance and demanded proof from him of her deficiencies. After the October 2010 meeting, Dr. Wahba met with Dr. Hernandez a second time to discuss her FAPR. She continued to resist his efforts to address the areas determined by him to be deficient. After the meetings, the next step in the FAPR process was for Dr. Hernandez to respond to Dr. Wahba's comments with a written plan of action and to sign the FAPR. She failed to do so. She was the only faculty member of the School of Pharmacy who did not complete the FAPR process. Dr. Hernandez blames Dr. Wahba for her not completing the FAPR process, taking the position that his responsibility was to "pursue" her to complete the FAPR process. December 13, 2010 Meeting As Dean of the School of Pharmacy, one of Dr. Ferrill's responsibilities was to review the FAPRs of the School of Pharmacy's faculty. In the fall of 2010, three faculty members had deficient FAPRs: Dr. Hernandez; Luna Bennett, Ph.D.; and Devon Sherwood, Ph.D. Dr. Ferrill met with each of them to discuss their deficient FAPR. Before meeting with Dr. Hernandez, Dr. Ferrill met with Dr. Wahba and discussed Dr. Hernandez's FAPR. Dr. Wahba advised Dr. Ferrill that he had reached an impasse with her in that she had never responded to his comments in the FAPR. On December 13, 2010, Dr. Ferrill met with Dr. Hernandez to discuss her FAPR and her plans to improve on the deficiencies. Others who attended this meeting included Dr. Wahba and Keysha Bryant, Ph.D., a professor in the School of Pharmacy. During the meeting, Drs. Ferrill and Wahba discussed areas in which Dr. Hernandez's performance was good. Further, they discussed the areas of deficiency and informed her that she needed a plan of action to improve in those areas. Additionally, Dr. Ferrill advised Dr. Hernandez that she was at risk of non- renewal of her contract unless she made strides to improve on her areas of deficiency. During the meeting, Dr. Hernandez was not receptive to the discussion regarding her deficiencies. She indicated, among other things, that nothing was wrong with her teaching skills and that she saw no reason to change what she was doing. Additionally, when queried about her plan of action to address the negative comments in the FAPR, she became emotional and raised her voice. Sometime near the end of the meeting, Dr. Hernandez expressed that she was emotionally upset, explaining that her ex- husband was ill and that she was taking care of him. Without questioning from anyone, she stated voluntarily that her ex- husband was living with her, indicating that she recognized that she was sinning in the University's eyes, but not in the eyes of God. The University has a policy against members of the University, including faculty and students, having extramarital sexual relationships. The policy prohibits a member of the University from having extramarital sexual relationships regardless of whether the subject person was divorced, single, or married to someone other than the person with whom the subject person was having a sexual relationship. Dr. Ferrill believed that Dr. Hernandez was admitting to violating the University's policy on extramarital sexual relationships. Dr. Ferrill questioned her further as to whether she was having an extramarital sexual relationship with her ex- husband, but Dr. Hernandez refused to answer. Prior to the meeting on December 13, 2010, Dr. Hernandez had never spoken of her living arrangement or sexual relations with her ex-husband to Dr. Ferrill. Further, prior to the meeting on December 13, 2010, Dr. Ferrill was not aware of Dr. Hernandez's living arrangements. Dr. Ferrell believed that she was required to report any University policy violation or potential violation of which she was or became aware. As a result, Dr. Ferrill advised Dr. Hernandez that she (Dr. Ferrell) was required to report the potential policy violation to her (Dr. Ferrill's) supervisor. After the meeting on December 13, 2010, Dr. Ferrill reported to Provost Joseph Kloba that Dr. Hernandez had admitted to violating the University's policy against extramarital relations. Once Dr. Ferrill made the report to Provost Kloba, she considered that her duty to report was fulfilled. Dr. Ferrell spoke to no one else regarding Dr. Hernandez's living arrangements. Provost Kloba determined that no violation of the University's policy existed and that no further action was warranted. Once Provost Kloba made his decision, Dr. Ferrill considered Dr. Hernandez's living arrangements to be a non-issue. Dr. Hernandez's Living Arrangements In October 2010, Dr. Hernandez's ex-husband had a health crisis while visiting family in Georgia. Due to his health crisis, he suffered, among other things, cognitive deficits and became totally disabled. In November 2010, Dr. Hernandez moved her ex-husband to E. J. Healey Rehabilitation Facility in West Palm Beach, Florida. He remained at the facility until March 2011. The evidence demonstrates that no one at the University was aware of Dr. Hernandez's living arrangements until the meeting on December 13, 2010. Post December 13, 2010 Meeting and Non-Renewal of Contract After the meeting on December 13, 2010, Drs. Ferrill and Wahba gave Dr. Hernandez an extension to respond to her FAPR. Three days later, on December 16, 2010, Dr. Hernandez submitted her response. In her response, Dr. Hernandez indicated that there was no need to make any significant improvements. Further, she indicated that she did not understand the issues presented and would discuss the comments with the University's Human Resources Office. As to students' critical comments, she indicated that she did not know what to do with the comments, but would conduct a research project about it. In January 2011, Dr. Hernandez participated in a group interview conducted by the School of Pharmacy for the position of Dean of Faculty. The interviewee was Seena Haines, Ph.D. Dr. Hernandez asked Dr. Haines questions which appeared to relate to the spring 2010 incident that Dr. Hernandez had with then Dean Brown when he confronted Dr. Hernandez about the email she (Dr. Hernandez) had sent to Dr. Ferrill. Dr. Hernandez's questions to Dr. Haines were considered by Dr. Ferrill to be inappropriate for a group interview; by Dr. Dana Brown to be unprofessional; and by Dr. Wahba to be out of place. Dr. Ferrill recommended to Provost Kloba that Dr. Hernandez's contract not be renewed for another year. Dr. Ferrill's recommendation was based upon the deficiency issues identified in the FAPR regarding Dr. Hernandez's teaching and collegiality and upon Dr. Hernandez's lack of interest in improving her deficiencies. Provost Kloba, who was also the Chief Academic Officer, was responsible for making the decision as to whether to renew Dr. Hernandez's contract. He reviewed, among other things, her FAPRs, including the student comments and her responses, and received feedback from Drs. Ferrill, Wahba and Brown (Dean Brown in spring 2010). Provost Kloba decided to not renew Dr. Hernandez's contract for another year. Dr. Hernandez's living arrangements were not considered and were not a factor in Provost Kloba's decision of non-renewal. Regardless with whom Dr. Hernandez was living, Provost Kloba would not have renewed her contract. By letter dated February 1, 2011, Provost Kloba informed Dr. Hernandez that her contract would not be renewed for another year. By letter dated February 4, 2011, Provost Kloba informed Dr. Hernandez that, effective February 1, 2011, through June 30, 2011, she was placed on paid administrative leave. She received all pay and benefits through the expiration of her annual contract, i.e., June 30, 2011. Divorced Faculty Members The evidence demonstrates that the University employs several faculty members who are divorced. The evidence demonstrates that Dr. Brown (Dean Brown) is divorced. Comparative Employees The evidence fails to demonstrate any similarly situated employee who was not divorced and was treated more favorably than Dr. Hernandez. The evidence fails to demonstrate any employee who was accused of the same or similar conduct and was treated more favorably than Dr. Hernandez. Current Employment Currently, and since January 2012, Dr. Hernandez is a Professor of Medical Sciences at California North State University, College of Pharmacy. She is subject to a yearly appointment. Her yearly salary is $110,000.00.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the discrimination complaint of Maria Hernandez, Ph.D. DONE AND ENTERED this 4th day of February, 2013, in Tallahassee, Leon County, Florida. ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of February, 2013. COPIES FURNISHED: Stuart Silverman, Esquire Stuart Silverman, P.A. Post Office Box 812315 Boca Raton, Florida 33481 Peter L. Sampo, Esquire Lisa Ann McGlynn, Esquire Allen, Norton and Blue, P.A. 121 Majorca Avenue, Third Floor Coral Gables, Florida 33134 Denise Crawford, Agency Clerk Florida Commission on Human Relations Suite 100 2009 Apalachee Parkway Tallahassee, Florida 32301 Cheyanne Costilla, Interim General Counsel Florida Commission on Human Relations Suite 100 2009 Apalachee Parkway Tallahassee, Florida 32301
The Issue Whether there is just cause to terminate the employment of Respondent, Kimberly Rosario (Respondent), as an employee with the Hernando County School Board (Petitioner or School Board).
Findings Of Fact The School Board is the duly authorized entity responsible for the operation, control, and supervision of all public schools, grades K through 12, in Hernando County, Florida, and for otherwise providing public education to school- aged children in the county. Art. IX, § 4(b), Fla. Const.; § 1001.32, Fla. Stat.1/ Rick Markford is the principal at J.D. Floyd K-8 (J.D. Floyd), a school in the Petitioner’s school district. As principal, he has ultimate supervisory authority over all staff members at the school, including custodians. In December 2013, Mr. Markford hired Respondent to serve as a Custodian 1 to work the night shift at J.D. Floyd. Shortly after starting her employment, Respondent’s excessive absenteeism rose to a level where she was taking impermissible leave without pay. As a result, Mr. Markford contacted the School Board’s human resources department for guidance on how to proceed. The School Board has enacted Policy 6.37 to provide the grounds for termination for all educational support and non- certified instructional personnel in its school district. Under Policy 6.37, Group III offenses warrant termination for a first- time violation. Respondent was specifically charged with violating Policy 6.37 Group III offenses “(5) Excessive absenteeism or excessive tardiness” and “(8) Absence from duty without authority, including refusal to report to duty at any time as directed.” Although the Petitioner can proceed directly to termination for a first-time Group III offense, it utilizes a five-step progressive discipline process for excessive absenteeism and absence from duty without authority. The first step is a coaching session with the employee. If the issue continues, the second step is a corrective action plan. The third step is a formal conference with an employee conference report placed in the employee’s file. Step four is a letter of reprimand. And the fifth step is a referral to Human Resources for further action, up to and including termination. In accordance with School Board policy, because of Respondent’s excessive absences, Mr. Markford initiated the five-step process described above. Step 1 occurred on March 7, 2014, when Mr. Markford held a coaching session with Respondent to discuss her absences without pay. She was specifically warned that any further unpaid absences would result in a second meeting and a corrective action plan. On April 17, 2014, Mr. Markford met with Respondent to address her excessive absenteeism and issue a corrective action plan in accordance with Step 2. As part of the corrective action plan, Respondent was informed that all future absences for the 2013-14 school year would require a doctor’s note and she would need to directly contact Mr. Markford. Despite the coaching, Respondent’s absences without pay continued, requiring Mr. Markford to initiate Step 3 in a June 23, 2014, meeting with Respondent. The employee conference report reflects that Respondent was absent without pay from May 29, 2014, through June 16, 2014. Petitioner’s fiscal year runs from July 1 to June 30, each year. Although Respondent had no entitlement to continued employment beyond June 30, 2014, Mr. Markford decided to reappoint her for the 2014-15 school year to give her a second chance. Because it was a new school year, any further issues with absenteeism would start at Step 1 of the five-step process rather than continuing directly to Step 4. On July 14, 2014, shortly after the start of the new school year, Mr. Markford had to meet with Respondent to initiate Step 1 in the process due to her taking leave without pay on July 2, 3, and 9, 2014. In the corresponding coaching- session note, Respondent was issued a corrective action plan. Respondent’s impermissible absences continued. On July 23, 2014, Mr. Markford met with Respondent to discuss a corrective action plan related to her continued excessive absenteeism, including her absence on July 16, 2014. That same day, Mr. Markford met with Respondent for an Employee Conference Report due to her continued absences without pay, including her absence on July 17, 2014. As reflected in the Employee Conference Report, Respondent was again informed that being in attendance every day was important. Respondent was directed to contact Mr. Markford directly to notify him of any future absences and that she must provide a doctor’s note for such absences. Despite the coaching, Respondent continued to be absent without pay and failed to comply with the corrective action plan. As a result, Mr. Markford issued her a Letter of Reprimand on September 14, 2014. Mr. Markford again explained to Respondent that “[p]unctual and regular attendance is an essential function of [her] job.” In the Letter of Reprimand, which Respondent signed, Respondent was specifically informed that “any further incidents of absenteeism will be considered willful absenteeism and [that Mr. Markford] will recommend that [her] employment with the [School Board] be terminated.” Following the reprimand, Mr. Markford informed the School Board’s human resources office of the issues with Respondent’s excessive absences and identified the disciplinary procedures he had followed. It was only after Respondent had exhibited a clear pattern of absenteeism and had been specifically warned that her continued actions would lead to a recommendation for termination that she filed a complaint against a co-worker alleging harassment. Specifically, on September 26, 2014, Respondent alleged that Christopher Griesbeck, night Custodian 1 at J.D. Floyd, said her “days are numbered here and laughed.” The complaint also referenced an April 2014 incident where Mr. Griesbeck, who was allegedly upset that Respondent was appointed to a day shift instead of him, took her to classrooms she was responsible for and pointed out deficiencies. There was no allegation that the alleged harassment was sexual in nature. Mr. Markford conducted an investigation into the harassment allegations by interviewing Respondent; Vincent Juliano, a Custodian 2 at J.D. Floyd; Mr. Griesbeck; and several Custodian 1s at J.D. Floyd. After completing the investigation, Mr. Markford determined that Respondent’s “complaint of working in a hostile environment is unfounded.” The investigation revealed that, as a result of Respondent’s high absenteeism, there was a degree of resentment and frustration among some of the custodial staff. Mr. Markford took steps to address the issue and developed a plan to limit the interaction between Respondent and Mr. Griesbeck going forward. Mr. Markford met with Respondent to inform her of his findings. On October 17, 2014, Respondent suffered an injury at work when she mis-stepped and twisted her knee, aggravating a pre-existing injury. A workers’ compensation injury report was completed on October 20, 2014, at Mr. Markford’s insistence and Respondent thereafter received treatment. The next day, October 21, 2014, Respondent was cleared to return to work with restrictions for her left knee. Consistent with the restrictions, as well as the restrictions she had over the next couple of months, J.D. Floyd provided her with light-duty work. On December 15, 2014, Respondent’s treating physician cleared her to return to work from her workers’ compensation injury with no restrictions. But Respondent was absent without authority on December 15, 17, 18, 19, 22, and 23, 2014. The Petitioner’s school district had a vacation break from December 24, 2014, through January 4, 2015. After returning from the break, Respondent’s unauthorized absenteeism continued. On January 6, 2015, Respondent’s treating physician cleared her to return to work on January 12, 2015, again with no restrictions. Despite this, Respondent’s high absenteeism and failure to follow the corrective action plan continued. On January 28, 2015, Mr. Markford held a meeting with Respondent because she was absent on January 12, 13, 14, 16, 20, 21, 26, and 27, 2015, without providing a doctor’s note. Mr. Markford explained that he considered Respondent’s actions to be insubordination and the matter would be referred to Human Resources. Respondent’s absences continued. At the time of those continued absences, Respondent would send text messages to Mr. Markford explaining she was not coming to work, and Mr. Markford would respond by informing her that she did not have any leave time and she was required to come to work. She did not comply with the directions. On February 2, 2015, Petitioner’s Director of Human Resources, Dr. Sarah Meaker, wrote a memorandum to the Petitioner’s Equity, Policy, Insurance and Compliance Administrator, Heather Martin, recommending that disciplinary action be imposed against Respondent based on Respondent’s continual absence from work without a doctor’s note. On February 12, 2015, Mr. Markford met with Respondent regarding her continued failure to come to work and non- compliance with the corrective action plan. This was the first workday in February that Respondent showed up to work. Respondent refused to sign any documentation and left work early without authority. On February 13, 2015, Ms. Martin informed Respondent that a pre-determination meeting would be scheduled regarding Respondent’s excessive absenteeism and absenteeism without leave in violation of School Board Policy 6.37 Group III (5) and (8). Petitioner had difficulty trying to contact Respondent in an effort to move forward with the disciplinary process. In reply to a text message from Mr. Markford informing her to contact Ms. Martin, Respondent responded: “They have my number they can use it.” In preparation for the predetermination meeting, Ms. Martin had a calendar created for the 2014-15 school year which showed the number of days and partial days that Respondent was absent. Specifically, for July 2014, Respondent missed five full days and one partial day; for August 2014, she missed four full days and three partial days; for September 2014, she missed seven full days and one partial day; for October 2014, she missed four full days and three partial days; for November 2014, she missed six full days and three partial days; for December 2014, she missed nine full days; for January 2015, she missed 12 full days and five partial days; and for February 2015, through the 18th of that month, she missed 11 full days and one partial day out of the 12 possible work days. The predetermination meeting was held on February 18, 2015. Minutes were kept for the meeting and thereafter transcribed. At the predetermination hearing, Respondent admitted that she was no longer on workers’ compensation because the doctor cleared her as maximum medical improvement (MMI). Respondent offered no valid justification for her excessive absenteeism and absenteeism without authority. Following the meeting, Ms. Martin recommended to the Superintendent that Respondent be terminated due to her excessive absenteeism and absence without authority. On February 19, 2015, Petitioner’s Superintendent of schools, Dr. Lori Romano, charged Respondent with violating School Board Policy 6.37 Group III (5) and (8) based on Respondent “being excessively absent and absent without authority.” Dr. Romano explained there was probable cause for discipline and that she would recommend Respondent’s termination. After Respondent indicated she wished to appeal the recommendation, the matter was transferred to DOAH and an administrative hearing was scheduled. Respondent did not attend the hearing. Respondent did not give advance notice that she would not attend the hearing and she did not explain or provide a reason for her absence.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered terminating Respondent’s employment with the School Board. DONE AND ENTERED this 17th day of July, 2015, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III Administrative Law Judge Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, Florida32399-3060 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of July, 2015.
The Issue The issue for consideration in this case is whether Petitioner, Carol J. Cargill, was properly removed from her position as Director of the University's International Language Institute and the related stipend therefore properly terminated.
Findings Of Fact Dr. Cargill, a graduate of Brown, New York University, and Georgetown University, was recruited by the University in 1977. She was hired as a professor in linguistics on a nine month contract. In 1978 she began to develop the ILI, and thereafter took the title of Director, receiving therefor a 20 percent overload to her salary, separate and apart from her academic salary for a full time load. She was never officially appointed as "Director" of the ILI. Her duties with the ILI were separate and apart from her duties as a faculty member. Her appointment to the faculty at the University was as a 1.0 Full Time Effort, (FTE) professor in Linguistics in the Division of Modern Languages and Linguistics, for which she was tendered and signed a standard State University System contract for each year of her employment as a professor, and for which she received a salary pursuant to the United Faculty of Florida Collective Bargaining Agreement, (CBA). The "Directorship" of the ILI is not within the legislative classification of Director. Faculty and other appointments at the University are made either to a "position" which is a creation of the legislature, or to "Other Personnel Services", (OPS), which is, by its nature, temporary. On or about May 5, 1992, Dr. Roger Cole, Professor and Director of the Division of Modern Languages, requested that Dr. Cargill tender her resignation as Director of the ILI. Dr. Cargill refused to do so. Thereafter, on August 10, 1992, Dean Richmond, Dean of the College of Liberal Arts and Sciences, recommended to Provost Meisels that Dr. Cargill be replaced as Director of the ILI. In response to that recommendation, Provost Meisels appointed a three- person review panel to review the material accumulated regarding Dr. Cargill's directorship of the ILI and to conduct such interviews as it deemed necessary. Provost Meisels, in his charge to the panel, directed it to advise him as to whether, in its opinion, Dean Richmond's recommendation, based on information submitted by Dr. Cole, that Cargill be removed, "might be reached by a reasonable individual." On October 5, 1992, the review panel notified Provost Meisels that it had concluded the recommendation met the "reasonableness" standard articulated, and on October 27, 1992, Provost Meisels, in a two page letter to Dr. Cargill, "immediately" removed her as Director of the ILI, and stopped payment of the salary overload she was receiving for those services, effective November 1, 1992. In this letter, Provost Meisels advise Dr. Cargill no additional responsibilities would be assigned to her for the balance of the semester, and she was provided with a "leave with pay for one semester and one summer at 1.0 FTE anytime before the end of the calendar year 1994. Though no specifics were provided either in the letter or at hearing regarding the basis for the apparent dissatisfaction with Dr. Cargill's performance at ILI, the underlying tenor of the letter clearly indicates such existed. Dr. Meisels characterized his action as a reassignment pursuant to Board of Regents Rule 6C-5.130, and though the University's decision to reassign her was discretionary and authorized by that rule, she had the right to file a grievance regarding the matter pursuant to USF Rule 6C4-10.010. The University neither followed nor attempted to follow the procedures for removal for just cause set forth in Rule 6C4-10.009, F.A.C. Dr. Cargill timely filed a Notice of Grievance and Request for Hearing pursuant to Rule 6C4-10.010 and, thereafter, the Step 1 hearing was conducted on June 3, 1993, by Dean Richmond. In his determination dated July 20, 1993, Dean Richmond found, "... there is no substantive basis for grievance on the issue of improper process in the termination of Dr. Cargill as Director of the International Language Institute." Dr. Cargill appealed this decision to then Assistant Provost Wright. In his Step 2 decision, Dr. Wright found the termination or reassignment of Dr. Cargill concerned a substantial interest of the grievant, but she had not met the burden of proof as required under the grievance procedure. He concluded that the recommendation for Dr. Cargill's removal from her position at ILI was consistent with the Board of Regent's rule and that no violation of that rule had occurred, which constituted a denial of her grievance. Dr. Cargill thereafter timely filed her Petition for Relief which forms the basis for this hearing. Ordinarily, a faculty member's assigned duties include a combination of both teaching and research, and, in addition, some faculty members are assigned administrative duties as a component part of their FTE. Though varying slightly from year to year, Dr. Cargill's assigned duties as FTE professor primarily consisted of teaching two courses and administering the graduate program within the Division of Language and Linguistics as "Director of Graduate Studies" which, though encompassing one third of her FTE, she considered an "administrative assignment." For this directorship, she received a one course release time. Over and above all that were her activities with the ILI. Dr. Cargill's assignments as a faculty member were recorded on periodic individual assignment of duties forms and activities reports. Her FTE directorship of graduate studies was listed thereon as "advisement." None of the ILI duties was ever included on either form. Up to 1992, the ILI was funded through the auxiliary budget of the School of Continuing Education and Dr. Cargill's ILI performance was evaluated by the head of the College for Continuing Education. Her FTE teaching and graduate student advisement performance was evaluated by the Director of the Division of Modern Languages and Linguistics. When she was first employed at the University, Dr. Gargill was tendered a standard one year State University System, (SUS), contract for each year of her employment as a professor. This covered her FTE activities only over the nine month regular school year. At no time was she offered or given a SUS contract for her ILI activities. Those activities were compensated for by the periodic issuance of an overload authorization which was signed by Dr. Cargill, the chairperson of the Division, and the Dean for the nine month regular school year. Notwithstanding Dr. Cargill understood the authorization form to be a contract for her services with the ILI, the overload form does not serve as an employment agreement. It merely serves to encumber the funds to be used to pay for the overload upon a showing that the work called for has been accomplished. Dr. Cargill was also given an OPS appointment for her summer term ILI duties when she was assigned no other duties. Overloads are instructional duties in an extension or continuing education activity which are in excess of a full appointment. They are not administered by the University's personnel department but, in this case, by the School of Continuing Education. They have never been considered as a position through which a person may attain tenure or any other right of continuing employment. To the contrary, the CBA requires overloads be offered "equitably". No notice is required before an individual performing overload duties can be denied further such assignments. By the same token, an OPS appointment is also temporary. An OPS appointment was used to compensate Dr. Cargill during the summer term because an overload is allowed only when the faculty member is carrying a full load. Since she had no assigned duties during the summer term except those involving the ILI, an overload would not have been the proper vehicle for compensating her for her summer term duties with the ILI. It must be noted here that OPS appointments, like overloads, carry no right of continuing employment and may be terminated without advance notice. While Dr. Cargill was serving in her FTE position and leading the ILI as well, her overload paid her an amount equal to 20 percent of her faculty salary, and the OPS summer appointment paid her sums in addition to that. During 1991, she was paid approximately $41,000.00 out of the University's Expense and General Funds for her services as an FTE faculty member. During the same period, she was also paid approximately $23,000.00 out of the University's Extension Incidental Trust Fund for her ILI activities. In his October 27, 1992 letter advising Dr. Cargill that her duties with the ILI were being terminated, Dr. Meisels specifically referred to the provisions of Rule 6C-5.130, F.A.C.. She was not given any new duties as a result of or subsequent to her removal from her position with the ILI. Instead, she continued her FTE teaching load and her FTE position as Director of graduate studies within the Division of Modern Language and Linguistics, but was not given an OPS appointment for the 1993 summer term. Dr. Cargill agrees she could have been relieved of her duties with the ILI for cause or from her FTE position as Director of Graduate Studies without notice or cause. However, she contends, the position with the ILI was an administrative assignment from which she could not be removed except for cause or consistent with the provisions of the other pertinent rules. The University does not assert she was removed from her position with the ILI for cause. It is not disputed that Dr. Cargill's duties, title, and pay in her ILI position gave her added prestige both on and off the University campus. Her removal from that position meant she would no longer have the prestige or receive the pay and as a result, she experienced an immediate substantial pay reduction and claims she was humiliated in front of her students and the community.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Dr. Carol J. Cargill's Petition for Relief be denied. RECOMMENDED this 6th day of September, 1994, in Tallahassee, Florida. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of September, 1994. APPENDIX TO RECOMMENDED ORDER The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR DR. CARGILL: Accepted and incorporated herein. - 7. Accepted and incorporated herein. Accepted. Accepted. Accepted and incorporated herein. Accepted and incorporated herein. - 17. Accepted and incorporated herein. & 19. Accepted except for use of term, "appointed" which has a special meaning in the law. Correct word should be, "assigned." 20. - 22. Accepted and incorporated herein. 23. Accepted. 24. - 26. Accepted and incorporated herein. 27. & 28. Accepted. 29. - 32. Accepted. 33. & 34. Accepted and incorporated herein. 35. - 36. Accepted and incorporated herein. FOR THE UNIVERSITY: & 2. Accepted and incorporated herein. 3. & 4. Accepted. - 7. Accepted and incorporated herein. Accepted. Accepted and incorporated herein. - 14. Accepted. Accepted and incorporated herein. - 19. Accepted and incorporated herein. 20. - 22. Accepted and incorporated herein. 23. & 24. Accepted. - 27. Accepted and incorporated herein. Accepted. Not a Finding of Fact but a statement of party position. Accepted. COPIES FURNISHED: Thomas M. Gonzalez, Esquire Thompson, Sizemore & Gonzalez 109 North Brush Street, Suite 200 Tampa, Florida 33602 Henry W. Lavandera, Esquire University of South Florida 4202 East Fowler Avenue, ADM 250 Tampa, Florida 33620-6250 Richard E. Fee, Esquire Glenn, Rasmussen & Fogarty 100 S. Ashley Drive, Suite 1300 Tampa, Florida 33601-3333 Noreen Segrest, Esquire Acting General Counsel University of South Florida ADM 250 4202 East Fowler Avenue Tampa, Florida 33620-6250
Findings Of Fact By operation of the Constitution of the State of Florida, Article IX, Section 4(b), the Board is charged with the operation, control and supervision of all schools within Volusia County, Florida. By state law, Section 230.01, Florida Statutes (1991), the State of Florida has delegated to the Board the responsibility for the actual operation and administration of all schools within Volusia County. Section 230.23, Florida Statutes (1991), provides that the Board will exercise, inter alia, the following general powers: (5) PERSONNEL - Designate positions to be filled, prescribe qualifications for those positions, and provide for the appointment, compensation, promotion, suspension, and dismissal of employees as follows, subject to the requirements of Chapter 231: (a) Positions, qualifications and appointments. - Act upon written recommendations submitted by the Superintendent for positions to be filled . . . Section 230.33(7)(a), Florida Statutes, requires the Superintendent of Schools to make written nominations of persons to fill positions established by the School Board. With respect to classroom teachers employed by the Board, such employees may be granted tenure, that is the right to continuing employment subject to removal upon certain conditions. The tenure rights of classroom teachers employed by the Board are provided by the Volusia County Teachers' Tenure Law, Chapter 18964, Laws of Florida (1937), as amended (hereinafter referred to as "the Volusia County Tenure Law" or "the tenure law.") The procedure used by the Board in determining which teachers are to be granted tenure begins with a recommendation made by the principal who is supervising the teacher in question. The recommendation is made to the Board's personnel office which then passes it on to the Superintendent, who either supports the recommendation by making it to the School Board or not. Only the Board may reelect a teacher for employment, and such reelection is an essential precondition to the obtainment of status as a tenured teacher. The Volusia County Tenure Law provides for a probationary period of three years following which, if the teacher is reelected to employment for a fourth consecutive year and fills other requirements set forth in the tenure law, he or she will obtain tenure. In the case of the three individual Petitioners who are parties to this action, each was denied tenure following her third year of employment, but did obtain employment in the status of a fourth year probationary employee. The alternative to this fourth year of probation was described by the Board's representative as a "failure to enter into a contract for an additional year and termination." The Union introduced a list of three teachers besides the individual Petitioners in this action as Petitioners' Exhibit 7. Of the three persons listed in that exhibit, one, Hall, was granted tenure after her fourth year of probation. Another, Maynar, was granted tenure after his fifth year of probation. The third, Powers, was granted tenure after seven years of probationary status. The fact that two of those teachers served probationary periods in excess of four years was described to be as the result of "oversight" on the part of the Board. Petitioners' Exhibit 1 sets forth tenure treatment of classroom teachers employed by the Board from and including the 1988-89 school year to and including the 1991-92 school year. In the 1988-89 school year, 123 teachers received tenure after a third year of probation, 12 teachers were granted tenure after a fourth year of probation, 115 teachers were non-renewed (terminated) after their third year, and 23 accepted a fourth year of probation. In the 1989-90 school year, 110 teachers received tenure after their third year, 22 were granted tenure after a fourth year of probation, 25 were non-renewed, and 25 accepted a fourth year of probation. In the 1990-91 school year, 155 teachers received tenure after their third year, 25 were granted tenure after a fourth year of probation, 28 were not renewed after their third year, and 41 accepted a fourth year of probation. In the 1991-92 school year, the last year for which records were available at the time of the hearing, 198 teachers received tenure following a third year of probation, 46 were granted tenure after a fourth year of probation, 33 were not renewed after their third year of probation, and 9 accepted a fourth year of probation. On March 30, 1993, Dr. Willie D. Brennon, Assistant Superintendent for Personnel for the Board, issued an interoffice memorandum to all principals and department heads which informed those principals and department heads that contract "Status 5," that is the granting of a fifth probationary year, was no longer an option open to principals and department heads dealing with classroom teachers. The Board's Division for Personnel Services has also issued a document entitled "Procedure for Giving Notice of Non forms for the employment and treatment of teachers. The Board has not promulgated any set of standards to be used by a principal in deciding whether he or she will recommend a classroom teacher for tenure. On April 19, 1991, Pearl Coleman was employed by the Board as a classroom teacher. On that same day, Ms. Coleman's principal, Rowena Reddix, completed a form entitled "Instructional Personnel Reappointment 1991 School Year." In that form, Ms. Reddix requested that Ms. Coleman be recommended for reappointment for the 1991 On May 10, 1991, Ms. Reddix recommended that Ms. Coleman be granted tenure by completing a form entitled "Recommendation for Tenure 1991-92 School Year." However, Ms. Reddix later rescinded her recommendation that tenure be granted to Ms. Coleman. After the recision, on June 13, 1991, Ms. Reddix recommended that Ms. Coleman be appointed as a probationary (non employee for the 1991 document, Ms. Coleman accepted employment as a probationary employee by executing a sworn statement that read as follows: This is to inform you that I voluntarily accept classification as a probationary employee for the 1991-92 school year. When Ms. Coleman signed that statement and accepted employment as a probationary employee, she understood that, but for her acceptance of this status, she would not be employed by the Board. Furthermore, although Ms. Coleman believed she would receive tenure after her fourth year of probation, she understood that she did not have tenure in that fourth year. On May 15, 1992, Mr. Gerald L. Gill, who succeeded Ms. Reddix as Ms. Coleman's principal, signed a letter, which informed Ms. Coleman that she would not be recommended for employment for the 1992-93 school year and that the Board would not enter into a contract of employment with her for any period subsequent to the 1991-92 school year. Linda L. Williams was employed by the Board as a classroom teacher for the 1989-90, 1990-91, and 1991-92 school years. In her third year of employment, Ms. Williams was employed as a classroom teacher at Woodward Avenue School and served under principal Jo Anne Rodkey. In the same year, Ms. Rodkey informed Ms. Williams that she would not be recommended for reemployment because the school was losing a unit and therefore there was no position for her at the school. On May 12, 1992, Ms. Rodkey delivered to Ms. Williams a letter informing Ms. Williams that Ms. Rodkey would not be recommending her for tenure. Subsequently, Ms. Williams applied for a position as a sixth grade teacher at Holly Hill Middle School. Ms. Williams previously had been informed by Ms. Rodkey that any further employment by the Board would be as a probationary employee. Ms. Williams specifically understood that the only way she would be hired at Holly Hill was on a probationary basis and further understood that if she had not agreed to probationary status she would not have been employed at Holly Hill Middle School. Ms. Williams accepted employment at Holly Hill under these conditions. On June 12, 1991, Petitioner Lynne Demarest was employed as a classroom teacher at South Daytona Elementary School. On that same date, Ms. Demarest executed a notarized statement which stated: This is to inform you that I voluntarily accept classification as a probationary employee for the 1991 Subsequently, on June 14, 1991, Mr. David C. Butler, who was the principal at South Daytona Elementary School, recommended the reappointment of Ms. Demarest as a probationary employee for the 1991 time that Ms. Demarest accepted employment on probationary status, she understood that this was the only condition upon which she would be employed by the Respondent.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is ORDERED that the Petition is DENIED and DISMISSED. DONE and ORDERED this 12th day of October, 1993, in Tallahassee, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of October, 1993. APPENDIX TO THE FINAL ORDER IN CASE NO. 93-1862 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, Florida Education Association et al. 1. Proposed findings of fact 1-11 are unsupported by the competent and substantial evidence. Specific Rulings on Proposed Findings of Fact Submitted by Respondent, School Board of Volusia County 1. Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1-17(1-17). COPIES FURNISHED: Lorene C. Powell Chief Trial Counsel, FEA/United 118 North Monroe Street Tallahassee, Florida 32399-1700 Thomas M. Gonzalez Attorney at Law 109 North Brush Street, Suite 200 Post Office Box 639 Tampa, Florida 33601 Carroll Webb Executive Director Administrative Procedures Committee Holland Building, Room 120 Tallahassee, FL 32399-1300
Recommendation Based upon the findings of fact and conclusions of law recited above, it is recommended that the complaint be dismissed for the reason that Petitioner did not meet his burden of demonstrating that the tenure decision reviewed herein was unlawfully reached. Respectfully submitted and entered this 28th day of May, 1976, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: President Cecil Mackey Office of the President University of South Florida Tampa, Florida 33620 David A. Maney, Esquire Gordon and Maney, P.A. Suite 2919, First Financial Tower Tampa, Florida 33602 D. Frank Winkles, Esquire Shackleford, Farrior, Stallings Evans First Financial Tower Post Office Box 3324 Tampa, Florida 33601
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
The Issue The issues presented for decision in the above-styled matter are as follows: Can tenure be denied, as opposed to being granted or postponed, during the fifth year of employment? If so, was petitioner wrongfully denied tenure? Did respondent wrongfully determine that petitioner's employment contract would not be renewed beyond June of 1975? 4 Was petitioner wrongfully terminated before he received a due process hearing?
Findings Of Fact Based upon the admissible oral ad documentary evidence adduced at the hearing, the following pertinent facts are found: Petitioner Jeffrey Rosner was hired by the respondent in September of 1969 as an Assistant Professor in the Department of Political Science, College of Social and Behavioral Sciences, a tenure-earning position. He was reappointed to this position for the school years 1970-71, 1971-72, 1972-73, 1973-74, and 1974-75. During the period of time between September, 1969 and June of 1975, petitioner received and reviewed student evaluations of his teaching effectiveness. Although his student evaluations improved over the five-year period in question, petitioner's evaluations from students were consistently below the college median. Also, for the calendar year 1973, rating scores were assigned to all fifteen faculty members of petitioner's department. In the area of teaching, petitioner ranked fourteenth. 1/ At all times, petitioner's primary assigned duty was teaching. At all times relevant to this proceeding - from the time petitioner received his first appointment to the present time - the Florida Board of Regents had established and set forth three areas in which faculty members would be evaluated for purposes of tenure, promotion, salary and retention. These three areas are teaching, research and other creative activities and service. Also, "tenure" has been consistently defined in terms of a high degree of competence in the three areas mentioned above. The respondent University, at least since 1970, has employed the use of "tenure forms" in order to gather information from the individual faculty members being considered for tenure in the areas of teaching, research and service. Such forms may be supplemented as was done in the instant case by a six-page supplementary statement. In the middle of his fifth year of continuous employment at the University of South Florida, petitioner was considered for tenure. It was the common practice in the Political Science Department to consider faculty members for tenure during their fifth year. The faculty member himself is not given a choice as to whether he wishes to be considered or postponed for tenure. At the time petitioner was considered for tenure, from December of 1973 through March of 1974, the procedure utilized in the Political Science Department was as follows. The tenured faculty members of the Department review the candidate's file, which is at least partially prepared by him, and then vote by secret ballot to either grant, deny or defer the tenure decision. An advisory committee consisting of four persons (three acting and an alternate) elected by the faculty members also reviews the candidate's file. Each member of the advisory committee makes an independent evaluation of the candidate and then the members' get together, rate the candidate on a scale of 1 to 5 in the areas of teaching effectiveness, research and creative activity, service and overall quality. The committee members than vote upon the recommendation to be made to the Department Chairman to either grant, deny or defer tenure. The Department Chairman then reviews everything to date, rates the candidate on the same areas and makes his decision. The candidate is then notified of the Department's decision and is given an opportunity to request to meet with the Chairman and/or the advisory committee to discuss reconsideration of the decision. Thereafter, the recommendation is finalized and everything is sent to the Dean of the College. The Dean recommends to the Vice president of Academic Affairs and the Vice President recommends to the President of the University. The above procedure was followed in Dr. Rosner's case and the following transpired: The tenured faculty, consisting of six persons, voted four opposed to granting tenure, two to defer the tenure decision and none in favor of granting tenure. During its first consideration, the departmental advisory committee, consisting of three faculty members - one tenured and two non-tenured - voted as follows: two opposed to granting tenure, one to defer the tenure decision and none in favor of granting tenure. That committee found that while petitioner's areas of specialization were relevant to the Department's needs, plans and goals, his performance in the categories of evaluation - teaching, research and service - "is insufficiently high to justify granting him tenure." On a scale of 1 to 5 (1 - below average, 3 - average, 5 - above average) the committee rated petitioner 2 in teaching effectiveness, 2 in research and creative activity, between 2 and 3 in service and 2 in overall quality. Upon the first evaluation, the Department Chairman, Dr. Robert Bowman, voted that he was opposed to granting tenure. He rated Rosner between 2 and 3 in teaching effectiveness, 1 in research and creative activity, between 3 & 4 in academic advisement, between 2 & 3 in service and 2.33 in overall quality. The Chairman also found that Rosner's talents and resources did not fit the needs, plans and goals of the Department. Upon reconsideration at petitioner's requests the advisory committee and the Chairman rated Rosner 2.5 in teaching effectiveness, 1.5 in research and creative activity, 2.5 in service activities and 2.0 as the overall evaluation. (Attachments 1 through 4 of Exhibit 1 lists the material relied upon in arriving at these ratings). The Department therefore recommended "denial of tenure and absolute termination at the end of the 1974-75 contract period." The Dean of the College of Social and Behavioral Sciences, Dr. Travis Northcutt, having the choices set forth on a form to recommend either the granting, denying or deferring of tenure, voted to recommend the denial of tenure in Rosner's case. He based this decision on a full review of all materials submitted by Rosner and the file sent by the Chairman. The Vice president for Academic Affairs, Dr. Carl Riggs, also recommended that tenure be denied. On March 15, 1974, Dr. Riggs notified petitioner of his decision not to recommend to President Mackey that Rosner be granted tenure. Petitioner was further notified by the same letter that "your employment will not be renewed after Quarter III of the academic year 1974/75." Petitioner was further advised of the opportunity for review of cases in which a faculty member asserts that his contract of employment is not being renewed for constitutionally impermissible reasons. Upon petitioner's request, Dr. Riggs explained in writing the reasons for the non-renewal of petitioner's appointment. The reasons listed related to the denial of tenure. This memorandum is dated June 19, 1974. On December 13, 1974, Dr. Bowman wrote petitioner a letter denying his request to be considered for tenure for 1975-76 for the current (1974-75) evaluation cycle, because of the previous decision to deny tenure and terminate his appointment effective June 19, 1975. On May 22, 1975, Dr. Rosner filed his complaint with the University President and asked that it be referred to the Academic Relations Committee. After receiving the Committee's report dated June 18, 1975, the President determined that he was not prepared to render a decision in petitioner's favor, and ordered that the complaint be considered in a plenary proceeding as defined in F.A.C. 6C-5.08(3). On July 16, 1975, the Division of Administrative Hearings received a letter from Steven Wenzel, General Counsel of the University, requesting, on behalf of the President that a Hearing Officer be assigned to conduct the plenary hearing. The undersigned Hearing Officer was so assigned, and, on July 31, 1975, notified Dr. Rosner of certain procedural problems relating to the complaint. Between this date and the date of the prehearing conference in this matter, numerous inquiries were made by the undersigned to the petitioner and his counsel as to the status of the case and anticipated dates for a hearing. Little, if any, response was forthcoming until early October, when this case, along with six others, was set for prehearing conference. On September 6, 1975, Dr. Rosner sent a letter to president Mackey stating: "Because it now appears that the administrative hearing in my case will not be scheduled until after classes begin for the fall term, I am requesting that I be given an interim faculty appointment, beginning with the fall term and continuing until the case is decided." Dr. Mackey responded on September 12, 1975, that ". . .Inasmuch as your contract expired according to its terms following the tendering of the appropriate notice of non-renewal, I am not prepared to direct that you be reemployed during the pendency of your hearing."
Recommendation Based upon the findings of fact and conclusions of law recited above, it is recommended that the complaint be dismissed for the reasons that petitioner did not meet his burden of demonstrating that the decisions to deny tenure and to not renew his employment contract were unlawful. Respectfully submitted and entered this 29th day of December, 1975, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings Room 530, Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of December, 1975.
The Issue Whether Respondent violated the Florida Civil Rights Act of 1992, as alleged in the Charge of Discrimination filed by Petitioner on November 30, 2000.
Findings Of Fact In November 1999, Respondent, Stetson University, (Stetson) advertised for applicants for a tenure track position on its faculty to begin in August 2000. The position was in the Department of Mathematics and Computer Science. The position advertisement read as follows: Stetson University invites applications for a tenure-track position beginning August, 2000. A Ph.D. in mathematics is required. Rank and salary will be commensurate with experience. The duties include teaching a broad range of undergraduate courses to both majors and non-majors, maintaining a program of scholarly activity, and undertaking university service. The teaching load is three courses per semester. Salary is competitive. The successful candidate will exhibit an enthusiasm and talent for teaching, support department standards for student performance, and contribute to the intellectual life of the department. Because all students in the College of Arts and Sciences must undertake a senior project, candidates should be committed to fostering undergraduate research. An interest in interdisciplinary work or applied mathematics is a strong plus. Stetson, Florida's first private university, is a small selective university of 2000 students. We are located in DeLand, Florida, 40 miles from Orlando and 20 miles from Daytona Beach. The department consists of seven mathematicians and four computer scientists, and has a variety of computing resources available, including computer- equipped teaching laboratories. Further information about out department is on our web page: http:www.Stetson.edu/departments/ mathcs/. Please send the following to the address below: letter of application, curriculum vitae, AMS cover sheet, a statement of mathematical interests, and a statement of teaching philosophy as it pertains to a liberal arts curriculum. Also arrange for three letters of reference, at least one of which addresses teaching. Dr. Grady Ballenger is Dean of the College of Arts and Sciences at Stetson. During the search to fill the faculty position in question, Dr. Ballenger appointed four individuals to serve on a search committee. He appointed Dr. Margie Hale as Chair of the committee, Dr. Erich Friedman, Dr. Michael Branton, and Dr. Kevin Riggs. Drs. Hale and Friedman, are faculty members in the mathematics department; Dr. Branton is Chair of the math department. Dr. Riggs is a faculty member of the physics department. Stetson routinely appoints one person from outside the department for which the position is advertised to serve on a faculty search committee. Dr. Hale sent a letter dated November 10, 1999, to Petitioner acknowledging that Stetson received his application. The letter also included the following: “Please make sure you have arranged for all of the items requested (listed below) to reach us as soon as possible.” The items listed at the bottom of the letter are “AMS cover sheet, letter of application, curriculum vitae, a statement of mathematical interests, a statement of teaching philosophy as it pertains to a liberal arts curriculum, three letters of reference, at least one of which addresses teaching.” The search committee used a system of stickers whereby each person had a particular color sticker. When a member of the search committee read and evaluated the file, the appropriate color sticker was placed on the file. The reader would place a check mark on the sticker which indicated the reader felt favorably about the application, an “X” if the reader was not interested in the application, and left it blank if the application was considered midline. Files that received two or more checks were put in a stack for further review. Stetson received at least 220 applications for the advertised position. The search committee narrowed the applicants to approximately 30 for further review. Petitioner’s application was not among the 30 finalists. Of those 30 finalists, 24 were interviewed at a national meeting held each year. The meeting is a joint meeting of the Mathematical Association of America and the American Mathematical Society. Drs. Friedman and Branton conducted those 24 interviews. The other finalists who did not attend the conference were interviewed by phone. After Drs. Friedman and Branton returned from the conference, the committee met and discussed Drs. Friedman and Branton’s evaluations of the persons interviewed. The committee narrowed the applicant pool to six finalists who were invited for an interview. By this time, the search had expanded to attempt to fill two faculty positions in mathematics. Of the six persons who received interviews on campus, an offer of employment was first extended to Dr. Hari Pulapaka. Dr. Pulapaka accepted the offer. Stetson intended to make an employment offer to one other of the six finalists. However, that candidate withdrew from the search. The decision was made not to offer employment to any of the remaining four finalists. Instead, two additional candidates were brought to campus for interviews. Of these last two finalists, an offer of employment was made to Denise Szecsi, who accepted the offer. Dr. Pulapaka received a Ph.D. from the University of Florida in 1995. His cover letter expressed a strong interest in Stetson, specifically referencing its mathematics department’s emphasis and experience with interdisciplinary curricula, its small classes, and his desire to return to Florida. His application included the required AMS cover sheet, a separate and detailed statement of teaching philosophy as it pertains to a liberal arts curriculum, a separate and detailed statement of mathematical interests, a detailed vitae which included institutions taught and during what time frames, and numerous publications and presentations, including dates of publication. Five confidential and current letters of reference were sent to Stetson on behalf of Dr. Pulapaka. The search committee selected Dr. Pulapaka because of his strong credentials outlined above and found his teaching philosophy and mathematical interests to be in sync with what they were looking for. Additionally, the search committee strongly preferred confidential letters of reference, i.e., letters of reference sent directly to Stetson, because it meant that the applicant had not seen them. Dr. Pulapaka clearly met the qualifications specified for the position. At the time she applied for the advertised faculty position, Denise Szecsei was what is referred to in academic circles as “ABD” which means all but dissertation. In that regard, she had completed all of her coursework to earn her Ph.D. and defended her dissertation shortly after interviewing for the position. During the interview process, the committee contacted Dr. Szecsei’s advisor to ensure that she was close to completion of her Ph.D. Dr. Szecsei had her Ph.D. in hand when she started employment at Stetson. Dr. Szecsei’s application packet included the required AMS cover letter, a separate statement of teaching philosophy, a separate statement of her research interests in mathematics, and a detailed vitae which included references to strong academic honors (i.e., she is a member of Phi Beta Kappa and graduated magna cum laude when she received her bachelor’s degree). Moreover, Dr. Szecsei’s cover letter noted that she had teaching experience in a variety of academic environments including the military, community college and university. It referenced her interest in living in Central Florida and her knowledge of Stetson. Four confidential and current letters of reference were sent to Stetson on behalf of Dr. Szecsei. The committee found Dr. Szecsei’s teaching philosophy and research interests to be impressive. It was clear to the committee that teaching was Dr. Szecsei’s main focus. Her letters of reference were confidential and current. In a memorandum recommending her to Dean Ballenger, a member of the search committee commented on Dr. Szecsei’s extra academic credentials, i.e., in addition to her Ph.D. in mathematics, she was close to having a master’s degree in chemistry, she had much more teaching experience than the typical new Ph.D., and she gave the best classroom performance of any candidate he had observed since he had been at Stetson. Petitioner argues that Dr. Szecsei was not qualified for the position because she did not have her Ph.D. in hand at the time of the application. That argument is rejected. Stetson made certain that she was to receive her Ph.D. before her employment began and, indeed, she had her Ph.D. in hand when she began working there. Dr. Szecsei in that and all other respects was a qualified applicant for the advertised position. Petitioner holds a B.A. in physics from the University of California, Berkeley, an M.A. in mathematics from Sacramento State College, and a Ph.D. from the University of California, Riverside. His resume does not indicate in what years he received his degrees. His resume lists numerous publications, participation in many presentations and seminars, but does not mention the dates of any of them. Petitioner’s application packet does not contain the required AMS cover sheet. There is no separate statement of mathematical interests or statement of teaching philosophy, but he referenced his academic interests and areas of mathematical interest in his cover letter. Petitioner's several letters of reference were not confidential, i.e., he included them with his application packet, were not addressed to Stetson, and were not current (the dates of the reference letters ranged from 1986 through 1994). Petitioner’s application does not indicate his age. Petitioner argues that his age can be inferred from references to certain dates in his letters of reference. For example, one letter of reference states that Petitioner received his Ph.D. in 1968. Another letter of reference mentions that Petitioner taught at a particular university from 1971 to 1981. In any event, Petitioner now informs that he was born in 1936. The search committee noted that Petitioner did not submit an AMS cover sheet as required. Despite this omission, the search committee reviewed Petitioner’s application packet and made several observations. Drs. Hale and Friedman noted that Petitioner’s cover letter appeared to be generic in nature with no specific reference to Stetson. Dr. Friedman noted that Petitioner addressed research before teaching indicating to him that Petitioner may have a stronger interest in research than teaching. Moreover, Dr. Friedman described Petitioner’s cover letter as "not polished." The fact that Petitioner’s reference letters were not confidential in nature was a negative factor. The lack of specific reference to teaching positions was a significant negative factor in the eyes of the committee. Petitioner’s expectation that a search committee which received approximately 220 application packets would search through letters of reference to piece together employment and teaching history is unrealistic and unreasonable. The search committee’s failure to do so does not indicate in any way that they engaged in any type of discrimination. Further, the lack of dates regarding years of teaching, publications, and participation in presentations, etc., made it impossible for the search committee to know how recent his teaching experience was. The undersigned is persuaded that the search committee did not wade through the letters of recommendation to calculate his approximate age. Other than Petitioner’s omission of the AMS cover letter, Petitioner was qualified for the job in question. However, there were many applicants and many qualified people who were not granted an interview. There is no competent evidence that Stetson used age as a criterion in its determination of who would and who would not be hired for the mathematics position. On the contrary, the preponderance of the evidence demonstrates that age was not a factor in the selection process.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 4th day of March, 2004, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of March, 2004.
