Findings Of Fact Petitioner Hamdi A. Mohammed is a tenured professor in the Department of Dental Biomaterials, College of Dentistry, at the University of Florida. He received his dental degree in 1963 from the University of Alexandria in Egypt, obtained a Masters Degree in Prosthetic Dentistry in 1967 at Northwestern University, and his Doctorate Degree in Dental Materials and Engineering from the University of Michigan. Prior to the commencement of his employment at the University of Florida in 1974, he had served as an assistant professor and then associate professor at the University of Connecticut. (Testimony of petitioner, Exhibit 27 (Deposition of Petitioner)) Petitioner was first employed at the University of Florida in 1974 as a professor at a salary of $30,000.00. The notice of appointment stated that the Board of Regents had approved the appointment upon the recommendation of the President for 1974-1975 for a period of twelve months. In 1975, the Department of Dental Biomaterials, among others, was created within the College of Dentistry, and Petitioner was appointed chairman of the Department by Don L. Allen, Dean of the College of Dentistry on March 1 1975. Thereafter, the annual notice of appointment, dated November 25, 1975, which was signed by Dean Allen and Petitioner, reflected that the Board of Regents had approved Petitioner's appointment upon the recommendation of the President, as professor and chairman from July 1, 1975 to June 30, 1976 at a salary of $30,000.00. (Testimony of Petitioner, Allen, Exhibits 4, 6, 26 (Deposition of Allen), 27 (Deposition of Petitioner)) On February 24, 1976, Dean Allen recommended to the Board of Regents that Petitioner be tenured in the rank of professor when he became eligible on July 1, 1976. By letter of August 23, 1976, the President of the University informed "Professor" Mohammed that the Board of Regents had approved the tenure recommendation. Subsequent annual notices of appointment reflected that the President had approved the appointment of Petitioner for the ensuing year under Class Code 9060 as "chairperson and professor" in the College of Dentistry. In each instance, Petitioner acknowledged the appointment by signing the notice of appointment. (Exhibit 4) In the spring of 1980, Dean Allen received complaints against Petitioner from several members of the faculty in the Department of Dental Biomaterials. The complaints dealt generally with Petitioner's performance as chairman of the department primarily with respect to his alleged excessive absences and unavailability in the department, and taking credit for research efforts of other faculty members. Subsequently, on May 19, 1980, Dean Allen met with Petitioner to discuss his annual evaluation. The concerns which were discussed and later memorialized in the written "Annual Departmental Chairperson Review" were the "rather significant turnover of faculty members in the department" and "lack of a significant number of publications from the department." The written evaluation stated that "Dr. Mohammed's department, under his leadership, continues to do a very fine job in the dental educational program as well as the research program". The complaints of the faculty members were not discussed at the meeting. Dean Allen reported the complaints to Dr. Kenneth F. Finger, acting vice president for health affairs, who referred him to Thomas S. Biggs, Jr., the University attorney. Mr. Biggs, in turn, brought in Dr. Catherine A. Longstreth, Special Assistant to the President of the University. After discussing the matter, Biggs assigned an assistant to investigate the complaints and asked Dean Allen to provide him with further information concerning certain of Petitioner's activities in the department. At some point in time after several meetings, Biggs and Longstreth advised the Dean that he had the right to remove or not to reappoint Petitioner as the chairman at the end of the contract period on June 30, 1980, but could not remove him during a contract period without first affording Petitioner a hearing and showing cause for removal. They also agreed to support the Dean if he made the determination not to reappoint Petitioner as chairman of the department. At this time, a report of the investigation conducted by the University attorney's office had been provided to the participants wherein the investigator had found several instances of lack of verification of certain of the complaints made by the faculty members against Petitioner, but was otherwise inconclusive. (Testimony of Longstreth, Biggs, Allen, Exhibits 11, 20, 25 (Deposition of Longstreth), 26 (Deposition of Allen)) Dean Allen reported to Dr. Finger that he intended to meet with Petitioner and tell him that he would not continue as chairman of the department. Dr. Finger suggested that Dean Allen discuss the matter with some of the department's chairmen. On June 19, 1980, Dean Allen informed Petitioner of the faculty complaints and told him that, in view of the gravity of the situation, he considered that he had no option other than to try to rebuild the department with a new chairperson. The following day, Dean Allen met with five of the departmental chairpersons and informed them of his intent not to reappoint Petitioner as chairman of the Department of Dental Biomaterials. Dean Allen also met with Petitioner on June 22, 1980. At some time during their two meetings, the Dean told Petitioner that several "options" were open to him in the matter. These included non reappointment effective July 1, 1980 or July 1, 1981, or total resignation immediately from the faculty and the chairmanship, or resignation from the chairmanship only. However, Dean Allen told Petitioner that it seemed most appropriate for him to submit a letter of resignation prior to July 1, 1980 as chairman, which would be effective on June 30, 1981, and that he would keep the matter confidential until the beginning of 1981 so that Petitioner would have an opportunity to seek another position. Dean Allen indicated that he had discussed the "options" with Dr. Longstreth and Mr. Biggs. Petitioner testified at the hearing that the Dean had also told him that he was compelled to remove Petitioner as chairman upon the direction of those individuals. Dean Allen denied at the hearing that he had made such a statement. This conflict in the testimony cannot be resolved. In any event, by letter of June 23, 1980, Petitioner submitted his resignation as chairman effective June 30, 1981, and therein expressed the intent to remain in his position as a tenured professor in the department. The letter stated petitioner's understanding that his resignation would not reflect on his professional competence and ethical conduct or his ability to effectively function as a member of the tenured faculty, and requested that the Dean sign a copy of the letter if he concurred therein. Dean Allen expressed his concurrence by signing the copy of the letter on June 23, 1980. Also, by memorandum dated August 8, 1980, Dean Allen formally accepted the letter of resignation. In the memorandum, Dean Allen assured Petitioner that the fact of the resignation would not be disclosed until January, 1981. (Testimony of Petitioner, Allen, Exhibit 5, Exhibit 26 (Deposition of Allen), 27 (Deposition of Petitioner)) During ensuing months, Petitioner and Dean Allen exchanged correspondence concerning the Dean's stated intent to reduce Petitioner's state salary by $6,000.00 at the time the resignation as departmental chairperson became effective. By letter of October 22, 1980, Petitioner wrote to the Dean that, after due consideration, he was withdrawing his resignation. A letter from his attorney of the same date stated that it was apparent that proper procedures for handling complaints against faculty members were not followed, that Petitioner had been pressured and coerced into tendering his resignation, and that he had been advised that his income would be seriously affected if the resignation became effective. Mr. Biggs, the University attorney, responded to this letter of October 24th stating that the University had no intention of acknowledging the purported resignation withdrawal, but that the Dean, after appropriate consultation with other University officials, had made the decision that the interest of the department and college could best be served by someone else in the position as chairman. It further stated that petitioner did not have tenure in the administrative post of department chairman, and that, even absent a resignation, it was within the power of the Dean to make a change in the chairmanship of the department. (Exhibit 5) On December 12, 1980, Petitioner requested Dr. Finger to initiate a grievance proceeding and hearing "to investigate the ethics and justification of a resignation imposed upon me by Dr. Don L. Allen." In his letter, Petitioner stated that he had been pressured into resigning, but that after submitting the resignation, it was determined that the complaints against him had proved to be unfounded, and therefore he had withdrawn the resignation. He further stated his belief that the Dean's interest in discrediting him emanated from his discrimination against petitioner's national origin, citing an instance when Dean Allen had once stated in a public search committee meeting that he did not trust orientals and simply could not work with them. By letter of February 9, 1981, Dean Allen explained to Dr. Finger his reasons for his "plan" to remove Petitioner as chairman of the Department of Dental Biomaterials. He therein stated that the basic problem was the inability of Petitioner to develop a reasonably stable department from the standpoint of personnel to ensure its effectiveness. The letter further requested Dr. Finger's concurrence for the Dean to send Petitioner a letter stating that he would not be appointed chairperson of the department, effective with the 1981-1982 academic year appointment. Further correspondence ensued between Dean Allen and Petitioner, which culminated in the Dean's letter of May 1, 1981 advising Petitioner that after receiving certain materials from him, he had "reconsidered" the matter and it was his conclusion that the department had not demonstrated the continuity of faculty and staff to enable it to fulfill its responsibilities and commitments to the long-range goals of the College of Dentistry. It further stated the Dean's conviction that new leadership was required and that therefore he would not reappoint Petitioner as chairman at the end of the academic year. Effective July 1, 1981, Petitioner was not reappointed as department chairman, and an acting chairman has been serving in such capacity since that date. Petitioner has continued to serve as a professor in the department without reduction in salary. (Testimony of Allen, Exhibits 8, 13, 17, 18, 25 (Exhibits to Deposition of Longstreth)) It has been the general practice at the University of Florida for departmental chairmen to be appointed by the particular college dean with the concurrence of the appropriate vice president, without the need for personal approval by the President. Prior instances in which departmental chairmen had left that position were normally due to retirement or a voluntary desire to return to a purely faculty status without administrative duties. In such cases, the change normally would be effected simply by a resignation or the issuance of a personnel form showing the change in status. Although a chairman's state salary normally was above that of other members of the faculty, the specific amount for performing the duties of chairman was not identified as such until 1981 in the College of Dentistry. (Testimony of Biggs, Longstreth, Exhibit 5) Petitioner's status as a professor and later as a departmental chairman and professor was as an instructional and research faculty member (I and R) as opposed to the administrative and professional staff (A and P). The latter category includes specialized positions such as the university attorney, affirmative action officer, and clinical laboratory specialist. There is a separate classification for chairperson and professor which is Class Code 9060 in the State University System. A professor is under another class code. The classification system is designed to reflect a person's current duties and responsibilities and is relevant to the issue of collective bargaining unit determinations. Academic rank and tenure are reflected on annual notices of appointment. Those notices for Petitioner after he acquired tenure showed that he was in tenure status 1. He remained in tenure status 1 after July 1, 1981, as reflected in his notice of appointment as professor for the 1981-1982 school year. No instances have been shown where the Board of Regents or Respondent interpreted pertinent statutes and rules as providing for tenure with respect to administrative duties assigned to a faculty member, such as departmental chairman. Tenure recommendations and decisions uniformly have applied solely to faculty rank. It is considered common knowledge in academic circles that the concept of tenure does not apply to the position of departmental chairman. (Testimony of Perry, Allen, Longstreth, Biggs, Exhibits 25 (Deposition of Longstreth), 26 (Deposition of Allen), 28 (Deposition of Smith) 29 (Deposition of Wickwire), 30 (Deposition of Mahan), 31 (Deposition of Colaizzi)) Dean Allen's testimony at the hearing concerning the reasons that prompted him to decide not to reappoint Petitioner as chairman indicated that the accuracy of the faculty complaints was not the critical factor in his decision. He testified in the following vein: The big thing was whether these things were totally accurate or not, if Hamdi was perceived this way by this many people that were willing to put it down on paper, to make that kind of a commitment of what they were convinced of, then I felt like based on the history of the de- partment where everyone, every faculty member that had been in the department at this time had left or were leaving with the exception of Dr. Shen, who I believe had just joined the department, and some other things. (T 38-39) . . . that because I considered them to be generally true, and what I mean by generally true, I did not mean that each little word might be true but that the general situation was such that if these people, who some of them I knew, perceived of their chairman that way and would put it down in writing and knowing that the department had had difficulty in retaining faculty members, that all of those things taken together led me to believe that the perception of the people that worked with Dr. Mohammed as a colleague that were supposed to have some degree of freedom as a faculty member, that they did not see that they had that degree of freedom to the ap- propriate amount, and if Dr. Mohammed was perceived that way and this was the reason these people were leaving, then we needed an individual with a different kind of per- ception to chair that department. (T 111, Exhibit 26 (Deposition of Allen)) Dean Allen and Petitioner had been close personal friends for a number of years prior to the events of 1980. Petitioner's claim that the Dean's actions against him were prompted by discrimination against Petitioner's national origin was based primarily on a statement made by the Dean in 1978 before members of a faculty search committee that was considering several applicants for the position of chairman of the Department of Oral Surgery. Petitioner became upset as the result of an alleged statement by the Dean that foreigners could not be trusted. Two of the final three candidates were of foreign origin. In fact, the Dean had indicated to the committee that the position in question required a good working basis between the hospital and the medical school, and that he thought it was extremely important that the chairman knew American hospital procedures. He also had indicated some concern after interviewing the two foreign individuals that they wanted to tell him what they thought he wanted to hear rather than what they really thought. As a result of Petitioner's complaint to the Dean, the latter apologized at the next faculty meeting to the effect that if anyone had felt that he had said something derogatory about foreigners, he did not mean to do so. Most of the faculty members and graduate students in the Department of Dental Biomaterials were of foreign origin. It is found that the evidence is insufficient to show that the Dean's action with respect to Petitioner was based on any bias or discrimination against him because of his foreign origin. (Testimony of Allen, Petitioner, Exhibits 7, 26 (Deposition of Allen), 27 (Deposition of Petitioner), 28 (Deposition of Smith), 29 (Deposition of Wickwire), 30 (Deposition of Mahan), 31 (Deposition of Colaizze), 32 (Deposition of Lundeen))
The Issue Does the challenged language contained in the Academic Policy Statement Handbook constitute "curricula" so as to be exempt from rule-making pursuant to Section 120.81(1)(a), Florida Statutes [1996 Supp.]? Is Petitioner entitled to a de novo hearing on the merits of her dismissal from the University pursuant to Section 120.57(1) Florida Statutes in light of the provisions of Section 120.81(1)(f) Florida Statutes?
Findings Of Fact Petitioner was enrolled in Florida Agricultural and Mechanical University's College of Pharmacy and Pharmaceutical Sciences. On December 18, 1996, Petitioner was dismissed from the pharmacy program by a letter from the Dean of the College which stated, in pertinent part, After reviewing your academic record and the recommendation of the Admission and Academic Standards Committee, I must inform you that you are being dismissed from the College of Pharmacy. Please be advised that further request for readmission will not be considered. Because pharmacy is a career directed toward the safeguarding of community health, it also is a demanding career. We must insist that our students meet the academic challenges of the College of Pharmacy so that they will be well prepared to meet the challenge of a dynamic health care system. (Emphasis in original) [See, Exhibit to the First Amended Petition] Count I of the First Amended Petition challenges "Academic Policy Statement Handbook, Section 2 Dismissal", found on pages 9 and 10 of the publication. (See, Paragraph 5 of the First Amended Petition) The full title of this handbook is "Florida Agricultural and Mechanical University Academic Policy Handbook for BS and PharmD Students." The "Disclaimer" on page one of the Handbook makes clear that the Handbook is, ". . .for information purposes only and should not be construed as the basis of a contract between the student and the FAMU College of Pharmacy and Pharmaceutical Services . . ., the College reserves the right to change any provision listed, including but not limited to academic requirements for graduation, . . . it is especially important that each student note that it is his/her responsibility to keep himself/herself apprised of current graduation requirements by regular consultation with his/her advisor." The portion of the Handbook specifically challenged by Count I of the First Amended Petition provides as follows: ACADEMIC POLICY STATEMENT The Florida Agricultural and Mechanical University (FAMU) College of Pharmacy and Pharmaceutical Sciences (the College) has a responsibility to prepare students to enter the practice of pharmacy with competencies demanded by his/her role in health care. Further, the College serves to provide breadth and depth of scientific and professional background so as to allow versatility of practice within the subsystems of pharmacy. Students must make a commitment to their chosen profession by making those sacrifices necessary to insure academic success in their course of study. Being admitted to the College comes with the understanding that excellence in academic performance is expected. Failure to maintain academic performance will result in some action by the appropriate College of Pharmacy Committee. **It should be further understood that failing a course will usually result in the suspension of the student's program due to the structure of the curriculum and the associated prerequisite requirements in addition to any academic sanctions that may be imposed. The curriculum is designed to be followed from a course prerequisite standpoint while maintaining the integrity of the courses based on the year offered in the curriculum (i.e. 3rd year courses must be completed before entering 4th year courses, etc.). In addition to University Academic Regulations, the following rules will be used to provide for the immediate intervention of the Admissions and Academic Standards (A&AS) Committee. Additionally, the A&AS Committee may intervene at times other than specifically stated below if it is deemed necessary in order to ensure the academic integrity of the College. ProbationA student will be placed on academic probation if EITHER of the following occurs:Two or more D's in any course work in any semesterFailure of a professional courseA G.P.A. less than 2.0 in any semester. While on academic probation, the student will be required to meet with his/her advisor to determine what steps are needed to increase the student's academic performance. The student will be expected to adhere to the plan worked out with the student's advisor. The advisor will inform the A&AS Committee of the student's compliance and progress. **A "C" grade or better is required for passing all pharmacy courses.Probation will be lifted when BOTH of the following occur:A G.P.A. above 2.00No additional D's or F's DismissalA student may be dismissed from the program under provisions set by the A&AS Committee if EITHER of the following occurs:Two or more failures in one semesterA total of three failures in professionalcourses semester A G.P.A. less than 2.00 for the thirdThe student will be required to attend ALL professional courses in the semester in which he/she is retaking courses.The A&AS Committee will review every case separately and reserves the right to determine the provisions for each individual situation.The A&AS Committee will define the conditions for readmission for each individual student. DismissalA student will be dismissed from the program if EITHER of the following occurs:The fifth failure in professional coursesThe fifth failure in non-professionalcoursesThree failures in professional courses inone semesterThe second failure of a single courseThe student is eligible to reapply and be considered for admission one year after studies in the College have been discontinued. It is the student's responsibility to ask to be withdrawn from a course in a timely manner. Failure to seek counseling or guidance in a situation that negatively impacts his academic performance will not be used as cause to prevent the imposition of the appropriate academic penalty. (Emphasis in original) [See, Paragraph 5 of the First Amended Petition and Exhibit attached thereto] In her Supplementary Response to the Motion to Dismiss the First Amended Petition, Petitioner conceded that "No doubt the major text of the 'ACADEMIC POLICY STATEMENT' challenged, constitutes 'curriculum' which is exempt from rulemaking under Florida Law." The thrust of her challenge was then directed to the fifth paragraph on page 9 of the Handbook which reads, Additionally, the A & AS Committee may intervene at times other than specifically stated below if it is deemed necessary in order to ensure the academic integrity of the College. Petitioner further argued that she "contends that it is not what the challenged agency statement says . . . but what is not specifically in that text. The statement granted the A&AS Committee authority to take action against the Petitioner to preserve the 'academic integrity of the College,' but the text did not state what grounds that action must be based upon or what reasons are needed to take such action." Petitioner ultimately argued that she is "not challenging the 'curricula' use of the challenged statement to judge academic standards, but the use of the statement for other purposes as used against her." [See Petitioner's Supplementary Response to Respondent's Motion to Dismiss]. However, Petitioner conceded in the March 7, 1997 oral argument that she had no idea what those "other purposes" (also referred to as "discipline" or "other or secret agenda" in oral argument) might be, if any. Count II of the First Amended Petition adds anew a petition for a de novo review of the action of the Dean in dismissing Petitioner from the College of Pharmacy and Pharmaceutical Services. See, Finding of Fact 2, above.
Findings Of Fact Phillip Ortwein was employed by USF December 1, 1966 on a 7-month contract expiring June 30, 1967. On his application for employment (Exhibit 16) he indicated that he held a Masters Degree in Physical Education from Indiana University in 1948 and that he had done 1 1/2 years work on a Doctorate Degree which he expected to complete in 1968. He was employed in the Physical Education Department and assigned duties in the functional program as well as in the activities program instructing in tennis. His contract was renewed on July 1, 1967 for the period 9/1/67 to 6/30/68 on a 12-month appointment (Exhibit 4). His contract was again renewed July 1, 1968 for the 12-month period ending 6/30/69 (Exhibit 5). By memo dated March 3, 1969 Petitioner was notified that his contract would not be renewed effective June 30, 1970. Upon receipt of this notice Petitioner went to the Director of the Physical Education Division who had authored the notice to see if there was any hope his contract would be renewed. The Director, Dr. Bowers, advised Petitioner that there was always hope but that the notice remained effective. He was advised that he should upgrade his knowledge of changes in the academic physical education field. Petitioner was also aware that his immediate superior, Professor Prather, was not satisfied with his performance in the functional program of the Physical Educa-tional Division. Then or shortly thereafter Petitioner requested to be relieved of his duties in the functional program to devote more time to upgrading his knowledge and this was granted. Some six months later Petitioner first spent time in the library for this purpose. On January 27, 1969 the Physical Education Tenure Committee was requested by Bowers to submit a recommendation regarding the tenure status of Ortwein. At this time Ortwein was not eligible for tenure as he had not been employed by USF for the three years required. However, this was the only professor evaluation committee extant and Bowers, in order to get faculty input on whether or not to recommend renewal of Ortwein's contract, asked for the evaluation. On February 26, 1969, Bowers was advised the committee had voted 3 for granting tenure and 3 for deferring tenure. By letter dated December 22, 1969 Dean Edwin P. Martin, following a discussion with Ortwein, advised Petitioner that, due to an apparent misunderstanding by Ortwein regarding Bowers' notice he, Martin, was rescinding the termination notice of March 3, 1969, and that his employment would be terminated December 31, 1970. Following further discussion with Bowers Petitioner requested the full faculty in the Physical Education Division be polled to evaluate him. Results of this poll were 3 recommending granting tenure, 9 opposed, and 3 undecided. Due to administrative error Appointment-Reappointment Notice dated September 1, 1970 (Exhibit 7) renewing Petitioner's contract from" September 18, 1971 to June 13, 1971 was forwarded to and accepted by Petitioner. By letter to Ortwein dated October 9, 1970 (Exhibit 11) Dean Martin acknowledged that the contract (Exhibit 7) served to extend Petitioner's termination dated to June 13, 1971. Exhibit 12, letter of December 14, 1970, incorrectly dated December 14, 1971, Harris Dean, Acting President of USF, notified Petitioner that his employment would be terminated at the end of quarter 1, 1971, more than one year from the date of the letter. Exhibit 8, Notice of Appointment - Reappointment dated December 14, 1970 extended Ortwein's appointment to December 16, 1971. The parties stipulated that evidence subsequent to this latter termination date was not relevant to these proceedings. The pleadings indicate Ortwein was finally terminated in June, 1975. The letter of termination (or nonreappointment) dated December 14, 1970 was the first notice received by Respondent signed by the president of USF and this notice provided twelve months advance notice to Ortwein that his appointment would not be renewed. By letter of December 10, 1970 (Exhibit 13) Bowers presented to Acting President Dean four reasons for the recommendation not to reappoint Ortwein. These were: (1) Lack of performance in the area of functional physical education; (2) Contribution limited to area of tennis; (3) No contribution to the department outside the area of tennis; and (4) When the entire faculty of the Physical Education Division were polled there were 3 votes for and 9 against his continuing employment with 3 abstentions. Petitioner's performance in the Physical Education Division was unsatisfactory. He exhibited difficulty handling large groups and communicating instructions to them. His contributions at staff meetings were non-existent or negligible. His relations with students were considered brusk and too militaristic by his superiors. Neither Petitioner nor any other witness testified to any personal animosities between them and Petitioners; or of any conflict with any religious, political or social philosophies between them and Petitioner. In fact all witnesses testified no such personal difficulties existed or were apparent.
Conclusions It is hereby ordered and adjudged that Petitioner's complaint be and the same is hereby dismissed. Even if the complaint were to stand, the record supports, with competent substantial evidence, the conclusion that the Petitioner should not be re-employed by the University. Therefore, that decision is affirmed and adopted as the final action of this agency. Done and ordered at Tampa, Florida, on September 14, 1977. Wm. REECE SMITH JR. President
The Issue Whether Respondent violated the Florida Civil Rights Act of 1992, as alleged in the Charge of Discrimination filed by Petitioner on February 5, 2001.
Findings Of Fact In the fall of 1999, Respondent, North Florida Community College (NFCC), advertised for candidates for the position of Vice President for Academic and Student Affairs. Respondent advertised to fill this position by placing an advertisement in local newspapers, as well as in Gainesville, Florida. Additionally, an advertisement for this position was placed in the Affirmative Action Register, which is a publication for minorities, as well as in the Chronicle of Higher Education. The advertisement did not specify a salary and specified an application deadline of November 9, 1999. The position vacancy advertisement included the following: Qualifications include: an earned doctorate from an accredited institution of higher education; at least five years of successful progressively responsible administrative experience in academic programs, preferably at a community college; some previous experience in teaching at the postsecondary level; and/or experience as a counselor or administrator for student services functions, this latter qualification being preferable. Experience in the Florida Community College System is a plus. William Hunter is the Human Resources Director for NFCC. Mr. Hunter was responsible for placing the advertisements for the Vice President's position in the various publications. He is also responsible for ensuring that search committees are appointed, communicating with applicants, determining salaries to be offered to individual candidates based upon an established procedure, and offering positions by telephone to those persons selected. A search committee was appointed by the President of NFCC, Dr. Grissom. There were five members of the selection committee, including Clyde Alexander, NFCC's Athletic Director and Equity Coordinator. Mr. Alexander is African-American. Initially, 51 persons applied for the position. The selection committee narrowed the list of applicants from 51 to eight semi-finalists. Mr. Hunter was instructed to notify each semi-finalist that he/she was selected. He notified each of the semi- finalists by telephone and coordinated interview dates. Mr. Hunter sent a letter to each semi-finalist. The letters informed the candidates of their selection as a semi-finalist, confirmed their interview date and time, and advised them that NFCC would be paying for the travel expenses to Madison, Florida, for the interviews. The letters to the semi-finalists also stated that the salary range was $45,000 to $75,000 per year, "depending on experience." The salary range was established by the college's Board of Trustees. Petitioner is an African-American male. Petitioner was selected as a semi-finalist. Also among the semi-finalists were Dr. Barry Weinberg and Dr. Thomas Eaves, both white males. Interviews were conducted between December 1 and December 9, 1999. Each of the semi-finalists was given a tour of the campus and had an opportunity to meet with various college officials, as well as the President and members of the search committee. After the interviews of the semi-finalists were completed, the selection committee provided a list of finalists to the President.1/ The first choice of the selection committee was Dr. Barry Weinberg, who at that time was employed as Vice President for College Advancement at Rockingham Community College in Wentworth, North Carolina. Dr. Weinberg holds a Bachelor of Science in Education from State University of New York at New Paltz; a Master of Science in Student Personnel Services (Higher Education Administration) from State University of New York at Albany; a Certificate of Continuing Studies in Applied Behavioral Sciences from Johns Hopkins University; and a Doctor of Education in Higher Education Administration from Vanderbilt University. Mr. Hunter offered the position to Dr. Weinberg pursuant to instructions from President Grissom. Despite the letter which informed the semi-finalists that the top of the salary range was $75,000, Mr. Hunter was informed by the President that no applicant could be offered more than $70,000 per year because of a budget shortfall. The salary to be offered to an applicant was based on the application of an established formula to the applicant's experience as follows: subtracting the minimum salary from the maximum salary in the published salary range for the position; dividing that number by (30) to arrive at a multiplier; multiplying the applicant's years of relevant experience (after subtracting the years of experience required to qualify for the position) by the multiplier; and adding the result to the minimum salary in the range. The multiplier for the Vice President's position was $1,000. In applying the salary formula to Dr. Weinberg, Mr. Hunter determined that he had 29 years of relevant experience. He then subtracted the five years required experience, resulting in Dr. Weinberg having credit for 24 years of relevant experience, for purposes of the salary formula. The 24 years of experience was multiplied by $1,000 and added to the published base salary of $45,000. This resulted in the initial starting salary to be offered to Dr. Weinberg to be $69,000. Mr. Hunter had authority from President Grissom to add an additional amount of $2,500 per year in order to attract a candidate, provided that no candidate was offered more than $70,000 per year. Dr. Weinberg did not accept the initial offer of $69,000. Mr. Hunter then offered $70,000, which was ultimately rejected by Dr. Weinberg. Pursuant to direction from President Grissom, Mr. Hunter then offered the job to Petitioner. Petitioner holds a Bachelor's degree in Business Administration from Culver- Stockton College; a Master of Science in Guidance Counseling from University of Nevada; a Doctorate in Counselor Education from the University of Iowa; and holds a certificate from Harvard University in the Management Development Program. Mr. Hunter applied the salary formula by determining that Petitioner had 21 years of relevant experience. He subtracted the five required years of experience resulting in 16 years of relevant experience. After multiplying 16 by $1,000 and adding that to the minimum salary of $45,000, Mr. Hunter offered $61,000.00 to Petitioner. When Petitioner did not accept the offer, he increased the offer to $62,500. Although he was authorized to offer him $63,500, it was Mr. Hunter's understanding, after a telephone conversation with Petitioner, that Petitioner would not accept the job for less than $82,000. Therefore, Mr. Hunter did not bother offering the additional $1,000 to Petitioner. In any event, whether or not Mr. Hunter offered $63,500 to Petitioner, he was not authorized to offer $70,000 to Petitioner, as had been offered to Dr. Weinberg, because of the application of the salary formula to Petitioner. Pursuant to instruction from Dr. Grissom, Mr. Hunter next offered the position to Dr. Thomas Eaves. Dr. Eaves holds a doctorate and lesser degrees from North Carolina State University, and has teaching and related research experience at numerous universities. Mr. Hunter applied the salary formula and determined that Dr. Eaves should be offered $67,000. Mr. Hunter was authorized by the President to an additional $500.00 on top of the $2,5000 salary "sweetener" because the college had been turned down twice. Mr. Hunter called Dr. Eaves and initially offered him $67,000. Ultimately, Mr. Hunter increased the offer to $70,000, which was accepted by Dr. Eaves. Petitioner left Virginia Commonwealth University in July 2001 to work at West Chester University where he is Dean of Undergraduate Studies and Student Support Services. His starting salary at West Chester University was $84,500. His current salary, which was effective July 1, 2002, is $88,500. If Petitioner had accepted the position at NFCC for $63,500, he would have received a five percent pay increase in 2000 to $66,675 per year. However, because of a college-wide salary freeze which has been in place since 2000, Petitioner would not have received any further salary increases.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing Petitioner's Charge of Discrimination. DONE AND ENTERED this 13th day of October, 2003, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of October, 2003.
Findings Of Fact In September, 1970, Dr. Van Twyver was appointed Assist-ant Professor of Psychology by the University. The appointment was made in accordance with a contract which ran from September, 1970 through June, 1971. He was given a similar appointment for the academic year beginning September, 1971. Prior to the academic year beginning September, 1972, Dr. Van Twyver was promoted to the rank of Associate Professor (Complaining Party's Exhibit 8). Dr. Van Twyver received appointments as Associate Professor of Psychology for the academic years beginning in September, 1972, 1973, 1974, 1975 and 1976. Dr. Van Twyver also received several appointments to the same position for summer academic terms. Copies of the various appointments offered to and accepted by Dr. Van Twyver were received in evidence as Complaining Party's Exhibit 6. Prior to the appointment for the academic year beginning in September, 1976, each of Dr. Van Twyver's appointments was to tenure earning positions. The position covered by the appointment for the present academic year which commenced in September, 1976, is not a tenure earning position. Dr. Van Twyver's present contract provides that it is a terminal contract and will not be renewed. During his fifth year with the University (the academic year beginning September, 1974) Dr. Van Twyver applied for tenured status on the faculty. He was told by the Chairman of the Psychology Department that due to a change in policy he would not be considered for tenured status until his sixth year. During his sixth year (the academic year beginning September, 1975) Dr. Van Twyver again applied for tenured status. He submitted an application to the Department Chairman. The application was forwarded to the Department of Psychology Faculty Evaluation of Faculty Committee. The Committee was composed of five members. The members of the Committee originally voted unanimously in favor of recommending Dr. Van Twyver for tenure. The vote was based upon an evaluation in which areas of performance substantially equivalent to those itemized in Rule 6C-5.05(2) F.A.C. were considered. At a meeting of the Committee conducted on October 10, 1975, two members urged that Dr. Van Twyver and other tenure applicants be evaluated based upon an additional criterion, that being whether granting tenure would serve the best interests of the University. Dr. Burroughs who chaired the Committee indicated that Dr. Abbott, the Chairman of the Department, thought the additional criterion should be considered. The other members of the Committee rejected the argument, and at an October 15 meeting the Committee voted to recommend Dr. Van Twyver for tenure by a vote of three in favor and two abstaining. A copy of the Committee's final evaluation form dated October 15, 1976, was received in evidence as Complaining Party's Exhibit 2. The Committee considered Dr. Van Twyver acceptable or above acceptable in each of the categories evaluated other than in "research and other creative activities" in which he was rated outstanding. Dr. Van Twyver's application was next considered by members of the tenured faculty of the Department of Psychology. By a vote of four to one the tenured faculty voted against recommending tenure. The lone favorable vote came from Dr. Phillip Tell. The meeting at which the vote was taken was brief, lasting less than ten minutes, and matters other than Dr. Van Twyver's application were considered. Dr. Abbott, the Department Chairman, stated that the vote should be based upon a determination of whether granting tenure would serve the best interests of the University. Dr. Tell asked what was meant by "best interests of the University". Dr. Abbott answered by reading Paragraph G from the recommendation form utilized by department chairpersons in recommending granting or denying tenure or other promotions. Paragraphs A through E of the form set out criteria for evaluating an applicant which correspond with the criteria for evaluating faculty performance set out in Rule 5.05(2), F.A.C. Paragraph F of the form provides a space for recording the results of the tenured faculty vote. Paragraph G contains the following language: I (am, am not) satisfied that the nominee has met all of the criteria for (tenure, promotion) of this university and the Board of Regents, and that he/she (has, has not) demonstrated a high degree of competence in his/her professional field. I believe that granting him/her (tenure, promotion)(will, will not) serve the best interests of the institution and the State University System of Florida. I recommend that: ( )tenure ( )promotion to the rank of (be, not be) granted. The form then provides a space for comments and the chairperson's signature. Dr. Abbott expressed the view that the criterion "best interests of the institution" was apart from and in addition to the criteria for evaluation listed in paragraphs A through E of the form. The vote of the tenured faculty of the Department was based upon this interpretation as was Dr. Abbott's recommendation that tenure not be granted. A copy of Dr. Abbott's evaluation and negative recommendation for Dr. Van Twyver was received in evidence as Complaining Party's Exhibit 3. It cannot be determined from the evidence whether the tenured faculty would have voted in the same manner, or whether Dr. Abbott would have made the same recommendation if the criterion "best interests of the institution" had not been considered as additional to criteria set out in Paragraphs A through E of Complaining Party's Exhibit 3. It does appear that Dr. Van Twyver was considered at least satisfactory in each of those areas. It cannot be determined from the evidence why the tenured faculty voted against recommending tenure or why Dr. Abbott recommended against tenure unless it was for the reason that the concept of "best interests of the institution" was given some unknown interpretation and applied as an area to be evaluated apart from the other criteria. The college of Social Sciences Personnel Committee considered Dr. Van Twyver's application. By a vote of three to two it recommended in favor of granting tenure. The Personnel Committee's evaluation was received in evidence as Complaining Party's Exhibit 4. Charles N. Millican, President of the University decided against recommending to the Board Of Regents that Dr. Van Twyver's application for tenure be granted. His decision is set out in a letter dated March 19, 1976. Copies of the letter were received in evidence as Exhibit A to Hearing Officer's Exhibit 2 and to Complaining Party's Exhibit 1. President Millican set out the following as the basis for his decision: "A careful review of your file indicates that 80 per cent of the tenured faculty members in your Department voted against your tenure nomination, and in addition, your Department Chairman forwarded a negative recommendation. "The University President's decision was thus based upon the tenured faculty vote and Dr. Abbott's recommendation, both of which utilized the test of "best interest of the institution" as determinative. No evidence was presented at the hearing from which it could be determined that constitutionally impermissible criteria were applied to Dr. Van Twyver's application at any stage of the tenure application process. Dr. Van Twyver did not have an objective expectation of reemployment at the University at the time that he applied for tenured status or at any material time.
The Issue The issue is whether Petitioner is entitled to the relief requested in his Step Three salary grievance with Florida A&M University (FAMU).
Findings Of Fact In school year 2008-2009, Petitioner was a tenured professor at Stetson University College of Law (Stetson) in St. Petersburg. The FAMU College of Law, located in Orlando, was recruiting new faculty to improve its stature and academic standing. Besides Petitioner's academic stature as a tax and business law professor, the College of Law was then only provisionally accredited by the American Bar Association, and it sought an individual, such as Petitioner, who could help the College of Law achieve and retain full accreditation. Like other state universities, College of Law faculty members are either on a nine-month (academic calendar), ten- month, or 12-month (annual calendar) contract. A 12-month contract is justified when a faculty member has regular year- round teaching, research, and/or administrative duties. In late 2008, Petitioner was first contacted by the Dean of the College of Law, LeRoy Pernell, regarding a teaching position for the upcoming school year 2009-2010. By letter dated February 26, 2009, Dean Pernell informed Petitioner that he would recommend his appointment as a tenured, full professor under a nine-month contract at a salary of $177,000.00. See Pet'r Ex. 1. Had he returned to Stetson for the 2009-2010 academic year, Petitioner's base salary would have been $154,230.00, plus "benefit costs," including a summer teaching supplement and a tuition-matching program for his family, which totaled more than Dean Pernell's initial offer. See Pet'r Ex. 3. Accordingly, Petitioner rejected the offer and asked for a compensation package of around $200,000.00. Although Dean Pernell had no authority to establish a salary level, he agreed to recommend that Petitioner receive a salary of $180,000.00 for a nine-month faculty contract, rather than $177,000.00, and to "commit to providing a funded summer research grant to equal no less than $15,000 for summers 2010- 2012, assuming continuing availability of funding." See Pet'r Ex. 2. These proposed changes were handwritten on the initial offer letter previously tendered by Dean Pernell. Dean Pernell's offer letter required that Petitioner work 12 months -- nine months as a professor and three months in a research role. The new offer was memorialized by the Dean in a third version of the initial offer letter dated February 26, 2009. As the testimony at hearing confirmed, the final version of the letter simply incorporated Dean Pernell's handwritten changes found on the second version and reads in pertinent part as follows: This is to advise you that by a vote of the faculty and my full support, I am recommending that you be appointed to the faculty of the Florida A&M University College of Law as a professor. The formal letter of offer from the Senior Vice President and Provost of Florida A&M University is forthcoming. This recommendation is as a tenured Professor [of] Law. The recommendation is that this appointment be effective commencing with the 2009-2010 academic year and commencing with a salary of $180,000.00 for a 9 month contract. In addition, I will recommend that the College of Law commit to providing you a funded summer research grant equal to no less than $15,000.00 for the summers 2010-2012, assuming continued availability of funds. See also Jt. Ex. 9, p. 3. The authority to make formal employment and salary offers to faculty members lies with the Provost and Vice President for Academic Affairs, who at that time was Dr. Cynthia Hughes-Harris. See FAMU Reg. 1.021; Jt. Ex. 2. She was not required to accept the recommendation of Dean Pernell and could make an offer that fit within FAMU's administrative and budget considerations. Dean Pernell made this clear during his negotiations with Petitioner. On April 20, 2009, Provost Hughes-Harris informed Petitioner by letter that FAMU was offering him a full-time position with the College of Law. The letter stated in part as follows: I am pleased to offer you a 12 month, full- time position as a full Professor and also, Associate Dean for Research & Faculty Development in the College of Law. Your position as professor is with tenure, subject to the approval of the Board of Trustees. The Board of Trustees will meet regarding this matter no later than June 2009. The annual salary of $180,000 with a $20,000 stipend for administrative responsibilities will be paid on a bi-weekly rate of $7,662.83. The appointment period is for the fiscal year, which will begin on July 1, 2009 and end on June 30, 2010. Jt. Ex. 1. While Provost Hughes-Harris' offer essentially matched the compensation recommended by Dean Pernell, the terms of the offer deviated in two material respects. First, rather than a nine-month faculty contract, Petitioner was offered a 12-month faculty contract. Second, rather than a "summer research grant" to supplement his salary, he was offered a 12-month position as Associate Dean for Research & Faculty Development, which required that he perform administrative duties on a year-round basis. Because of administrative duties, his teaching responsibilities were limited to a "maximum of two courses per academic year while Associate Dean." Id. The bottom line here is that Petitioner was offered the same compensation recommended by Dean Pernell, but he now had year-round administrative duties. Petitioner voluntarily accepted the offer on April 28, 2009. See Jt. Ex. 1, p. 2. At hearing, Provost Hughes-Harris denied ever receiving a copy of any offer letter by Dean Pernell, except the initial offer letter of $177,000.00. However, Provost Hughes- Harris did not make employment and salary offers without conferring with the recommending dean, and she acknowledged that there "was certainly conversation" with Dean Pernell before the offer letter was tendered. While she could not recall any details regarding that conversation, she recalled that her offer letter was for a 12-month faculty contract, and there was no way to "blend" a nine-month teaching contract with a 12-month administrator contract. This is because a nine-month position and a 12-month position require separate contracts and cannot be combined. Each employment contract signed by Petitioner included the following conditions: This Employment Contract between Florida A&M University Board of Trustees (FAMU) and the Employee is subject to the Constitution and laws of the State of Florida as constitutionally permissible, and the regulations, policies and procedures of [the] U.S. and the Florida Board of Governors and FAMU as now existing or hereafter promulgated. * * * This Employment Contract supersedes any and all prior agreements, contracts, understandings, and communications between the Employee and FAMU, whether written or oral, expressed or implied, relating to the subject matter of this Employment Contract and is intended as a complete and final expression of the terms of the Employment Contract between FAMU and the Employee and shall not be changed or subject to change orally. Jt. Ex. 1, 4, 5, 6, and 7. Petitioner commenced employment with the College of Law in July 2009 and continued working as Associate Dean and a full Professor until the summer of 2015. During that period of time, he taught at least one class in the fall and spring semesters and performed administrative duties as Associate Dean on a year-round basis. By then, regular pay adjustments had increased his base salary for fiscal year July 1, 2015, through June 30, 2016, to $189,304.30, plus a supplement of $20,000.00 as Associate Dean. See Jt. Ex. 6. When Dean Pernell stepped down as Dean in the summer of 2015, by letter dated June 15, 2015, the new Provost and Vice President for Academic Affairs, Marcella David, appointed Petitioner Interim Dean while a search for a new Dean was undertaken. Besides the base salary and supplement he already received as Associate Dean, Petitioner was given an additional supplement of $10,000.00 for serving as Interim Dean, for a total supplement of $30,000.00. See Jt. Ex. 8. On June 26, 2015, Petitioner voluntarily signed the offer letter confirming his acceptance. Id. Provost David's letter informed Petitioner that "upon cessation of [his] appointment as Interim Dean of the College of Law and return to the position of Associate Dean," his salary would "be adjusted consistent with applicable FAMU Board of Trustee Regulations and Policies." Id. This obviously meant that once a new Dean was hired, and he reassumed the position of Associate Dean, he would no longer receive the extra $10,000.00 supplement. For the first time, the letter specifically advised Petitioner to be aware of Regulation 10.102 and Policy 2005-15. Id. Prior to that time, no reference to specific regulations or policies was made. However, each employment contract placed him on notice that all FAMU policies and regulations applied to employment contracts.1/ Regulation 10.102 and Policy 2005-15 govern pay actions when faculty members serving in an administrative position return to a faculty only position. This meant that if Petitioner resumed full-time teaching with no administrative duties, he would be subject to the terms of those provisions. Before signing the June 15, 2015, offer letter, Petitioner did not ask how the Regulation and Policy would affect his base salary if he returned to a full-time faculty position since more than likely he assumed he would again serve as Associate Dean and a tenured professor. Subsections (11) and (12) of Regulation 10.102 read as follows: When the assignment of Faculty serving in an administrative position such as Vice President, Dean, Director, or Department Chair is changed, the pay and appointment period shall be adjusted to reflect the new responsibilities. Pay adjustments shall be completed in accordance with the Board of Trustees Policy 2005-15 (Separation and Return of Senior Administrative and Academic Officers to Faculty), as now or hereafter amended. An employee's base salary shall be adjusted 81.8 percent when changing from a twelve-month appointment to a nine-month appointment. An employee's base salary shall be adjusted by 122.2 percent when changing from a nine-month appointment to a twelve-month appointment. Jt. Ex. 10, p. 2. Section IV., Policy 2005-15, "Salary upon Change in Assignment to a Faculty Position," describes three ways in which to calculate an employee's salary after being reassigned from an administrative to faculty position. It reads as follows: New Hire as Administrator If the employee was hired upon initial appointment as an administrator, his or her new salary will be the median salary of the employees within the same professorial rank and discipline. Tenured Faculty Prior to Becoming an Administrator. If the employee was previously a tenured faculty member prior to becoming an administrator, his or her new salary will be the salary held by the employee immediately prior to the time of the administrative appointment and any increases received by the faculty during the time of service as an administrator. These separate compensations will be noted in the appointment letter. Other Consideration Notwithstanding the provisions of IV.A. and IV.B., any agreed upon salary arrangement negotiated by the President or President's designee upon appointment as an administrator shall also be considered. Jt. Ex. 3, p. 2. On January 4, 2016, A. Felecia Epps was selected as the new Dean of the College of Law, with a start date of January 4, 2016. After assuming the position, Dean Epps restructured the College of Law leadership and its personnel. A determination was made that Petitioner would not continue in his role as Associate Dean and he would return to a full-time position as instructional faculty. Because Petitioner no longer had the position and responsibilities as Associate Dean, and would work only nine months each year as a professor, he was tendered a new contract on March 3, 2016, which adjusted his base salary downward from $189,304.00 to $148,306.00. See Jt. Ex. 5. This calculation was consistent with Regulation 10.102(12). The term of employment was from August 1, 2016, through May 5, 2017, with no special supplements or conditions. The new salary represented compensation based on a nine-month contract as a professor rather than a 12-month contract with dual duties. According to Provost David, who tendered the offer, this salary adjustment was in accord with section IV.A., Policy 2005-15, which governs salary changes for employees who are reassigned from an administrative position to a faculty position and were hired upon initial appointment as an administrator. She explained that Petitioner was initially hired by the College of Law as Associate Dean, and upon cessation of that appointment, section IV.A. provides that the employee's new salary "be the median salary of the employees within the same professorial rank and discipline." She further explained that the provision assumes the person being appointed as a new administrator is a faculty member, as it would not otherwise refer to the employee as having a professorial rank. This interpretation of the Policy is a reasonable one and not clearly erroneous. On March 7, 2016, Petitioner filed a grievance arguing that he was entitled to the same compensation ($180,000.00) agreed upon when he was initially hired as a professor in 2009, plus annual accruals. On March 18, 2016, Petitioner signed the contract under protest and subject to his grievance. See Jt. Ex. 5. The current median salary of faculty members in the College of Law is $148,306.00, which is the same as the adjusted salary first offered Petitioner in March 2016. Petitioner points out, however, that at least three current College of Law faculty members of similar experience and expertise, hired just before or after he was hired in 2009, were given nine-month employment contracts with a base salary of around $180,000.00. Ten days before the final hearing, Provost David tendered Petitioner another employment contract that increased his annual base salary from $148,306.00 to $154,850.92. See Jt. Ex. 4. The rationale for this increase was first outlined in Provost David's memorandum dated May 13, 2016, which denied Petitioner's Step Two grievance. See Jt. Ex. 9, p. 6. As further explained by Provost David at hearing, by "generously" interpreting section IV.C., Petitioner's appointment as Interim Dean could be treated "as a new appointment as an administrator with a base salary identified there on a 12-month basis of $189,000 and change, which allowed me to add approximately $6,000 to the median salary that was calculated under Paragraph A." Faculty members with a 12-month contract accrue both vacation and sick leave. A nine-month faculty member does not. Petitioner is aware of this distinction. After this dispute arose, Petitioner requested a pay-out of his unused accrued vacation leave and was given $31,912.32.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Florida A&M University enter a final order denying Petitioner's Step Three grievance. DONE AND ENTERED this 3rd day of November, 2016, in Tallahassee, Leon County, Florida. S R. ALEXANDER 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 3rd day of November, 2016.
The Issue The issue is whether Respondent committed unlawful employment practices contrary to Section 760.10, Florida Statutes (2007)1/, by terminating Petitioner's employment in retaliation for her filing a formal grievance asserting that a co-worker made a racially discriminatory comment to her at a staff meeting.
Findings Of Fact The District Board of Trustees of LCCC is an employer as that term is defined in Subsection 760.02(7), Florida Statutes. Petitioner, an African-American female, was hired by the College and began work on January 29, 2007. She worked in the cosmetology department as a Teaching Assistant II until the College terminated her employment on June 28, 2007. In addition to Petitioner, the College's cosmetology department consisted of two instructors, Carol McLean and Vicki Glenn. Ms. McLean was also the department coordinator, meaning that she supervised Petitioner and Ms. Glenn. The instructors performed classroom instruction and supervised students "on the floor" in the department's laboratory, where the students practiced their skills on clients who made appointments with the department to have their hair styled. Petitioner's duties included answering the telephone, making client appointments, ordering and stocking cosmetology supplies, and recording the hours and services performed by the students. Petitioner was a licensed cosmetologist and was expected to assist on the floor of the lab, but only when an instructor determined that her presence was necessary. Petitioner was not authorized to perform classroom instruction. Petitioner was at all times employed on a probationary basis under LCCC Policy and Procedure 6Hx12:8-04, which provides that all newly hired career service employees must serve a probationary period of six calendar months. This Policy and Procedure also requires that conferences be held with the employee at the end of two and four months of employment. The conferences are to include written performance appraisals and should be directed at employee development, areas of weakness or strength, and any additional training required to improve performance. Petitioner acknowledged that she attended orientation sessions for new employees during which this Policy and Procedure was discussed.4/ The evidence at hearing established that the orientation sessions covered, among other subjects, an explanation of the probationary period, the College's discipline and grievance procedures, and how to find the College's Policies and Procedures on the internet. The employee orientation process also required Petitioner's immediate supervisor, Carol McLean, to explain 14 additional items, including Petitioner's job description and the College's parking policies. The evidence established that Ms. McLean covered these items with Petitioner. Petitioner's first written evaluation covered the period from January 29, 2007 through March 29, 2007. The evaluation was completed by Ms. McLean on April 13, 2007, and approved by the Dean of Occupational Programs, Tracy Hickman, on April 30, 2007. The College's "Support Staff Job Performance Evaluation" form provides numerical grades in the categories of work knowledge, work quality, work quantity and meeting deadlines, dependability, co-operation, judgment in carrying out assignments, public relations, and overall performance. A score of 1 or 2 in any category is deemed "unsatisfactory." A score of 3 or 4 is "below norm." A score of 5 or 6 is "expected norm." A score of 7 or 8 is "above norm." A score of 9 or 10 is rated "exceptional." Petitioner's scores in each area were either 5 or 6, within the "expected norm." Ms. McLean graded Petitioner's overall performance as a 6. The evaluation form also provides questions that allow the supervisor to evaluate the employee's performance in a narrative format. In response to a question regarding Petitioner's strengths, Ms. McLean wrote that Petitioner "has demonstrated she is very capable handling conflicts/situations concerning clients. She is also good working with the students when needed. Her computer skills/knowledge has been an asset." In response to a question regarding Petitioner's weaknesses, Ms. McLean wrote, "Kay5/ needs to be a little more organized. I feel confident with the move to the new building, she will be able to set her office up to be more efficient for herself." Petitioner testified that she has excellent organizational skills and that she is, in fact, a "neat freak." Her problem was the utter disorganization of the cosmetology department at the time she started her job. She could not see her desk for the pile of papers and other materials on it. Boxes were piled in the middle of the floor. There were more than 100 unanswered messages in the recorded message queue. Petitioner testified that neither Ms. McLean nor Ms. Glenn could tell her how to proceed on any of these matters, and that she was therefore required to obtain advice via telephone calls to either Wendy Saunders, the previous teaching assistant, or Jeanette West, secretary to the Dean of Occupational Programs. Neither Ms. McLean nor Ms. Glenn recalled the complete departmental disorganization attested to by Petitioner at the outset of her employment. In fact, Ms. McLean recalled having to work 80-hour weeks to restore order to the department's workspace after Petitioner was discharged. No other witness testified as to disorganization prior to Petitioner's hiring. The evidence presented at the hearing established that Petitioner dramatically overstated the poor condition of the cosmetology department's offices at the time she started work, and also greatly overstated any contribution she made to improve its organization. Petitioner's second and final evaluation covered the period from March 29, 2007, through May 29, 2007. The evaluation was completed by Ms. McLean on May 22, 2007, and approved by Dean Hickman on May 23, 2007. Petitioner's numerical scores in each of the categories, including overall performance, was 4, meaning that her performance was "below norm." In a typewritten attachment, Ms. McLean wrote: Employee Improvement: Strengths: Kay is very good with the students and has strong desires to help them. Weaknesses: A concern is Kay's words and actions have shown that she would rather teach than be in the office. There is still a lack of organization in the office. We have had a couple incidents where we have to search for invoices, etc. I am still receiving complaints about the phone not being answered. Other comments: Too often Kay's actions have made it difficult for the department to operate effectively. Since Kay's arrival, it have discussed [sic] that each person must respect the protocol of communicating within the chain of command. On numerous occasions Kay ignored those instructions, In spite of my direct instructions to notify/discuss an incident report to Dean Hickman before doing anything else with it, Kay distributed it to others.6/ The College terminated Petitioner's employment on June 28, 2007, roughly five months after she began work and well within the six-month probationary period. Petitioner's dismissal was due to inadequate job performance and to several episodes displaying poor judgment and disregard of the College's rules and regulations. As to day-to-day job performance, the evidence established that Petitioner often had to be asked several times to do things that she conceded were within the scope of her duties. One of Petitioner's duties was to track the department's inventory, order supplies as needed, check the supplies against the invoices as they arrived, and unpack the supplies and restock the department's shelves. If the supplies were not removed from their shipping containers and stocked on the shelves, it was difficult for the instructors and students to find items or know when the department was running low on a given supply. Student cosmetologists at the College were frequently required to use caustic chemicals, and it was critical that the supplies be correctly inventoried and shelved to avoid mistakes in application of these chemicals. Ms. McLean had to tell Petitioner repeatedly to unpack the supplies. Petitioner would tell Ms. McLean that she would take care of it, but later Ms. McLean would notice that the supplies were still in their boxes.7/ Ms. McLean testified that there were multiple occasions when paperwork could not be located due to Petitioner's lack of a filing system. Ms. McLean and Petitioner would have to rummage through stacks of paper to find the item they needed because Petitioner failed to file the department's paperwork in a coherent manner. Another of Petitioner's duties was to set up "product knowledge" classes conducted by vendors of hair care products used in the cosmetology program. In February 2007, Ms. Glenn asked Petitioner to set up a class with Shirley Detrieville, the Redken representative for the College. Over the next month, Ms. Glenn repeatedly asked Petitioner about her progress in setting up the class, and Petitioner consistently responded that Ms. Detrieville had not returned her calls. Finally, in March, Ms. Glenn happened to see Ms. Detrieville on the campus. Ms. Detrieville informed Ms. Glenn that all the paperwork for the class had been completed long ago, and she was just waiting for Petitioner to call and let her know when to come. Ms. Glenn's class never received the Redken training. The evidence established that Petitioner consistently failed to return phone calls made to the department. There was a core group of women, mostly retirees that constituted an important segment of the regular patrons at the department's lab. Keeping track of their appointments was important because the students needed practical experience in order to meet the requirements for licensure. It was also important to keep track of the training needs of each student, because a student working on hair coloring, for instance, needed to be matched with a customer requesting that service. Among Petitioner's duties was to make the appointments for the patrons, and to coordinate the appointments with the students. Ms. McLean and Ms. Glenn testified that they consistently received complaints that Petitioner did not return phone calls from patrons attempting to make appointments. Ms. McLean recalled an elderly woman named Ms. Grammith, who was a weekly customer at the lab. Ms. Grammith phoned Ms. McLean at home because she was unable to get Petitioner to return her calls for an appointment.8/ Ms. Glenn recounted an occasion when she received a phone call from Ms. Grammith, complaining that Petitioner was not returning her calls. Ms. Glenn walked into Petitioner's office and asked her to return Ms. Grammith's call and make her appointment. Petitioner assured Ms. Glenn that she would. Ms. Glenn then went to teach a class. When she returned to her office, Ms. Glenn had another message from Ms. Grammith. Ms. Glenn asked Petitioner about the situation, and Petitioner admitted that she had not yet returned the call. Still later on the same afternoon, Ms. Glenn received a third call from Ms. Grammith. Again, Ms. Glenn inquired of Petitioner, who again admitted that she had not phoned Ms. Grammith. The next morning was a Friday, and Ms. Glenn received another call from Ms. Grammith. Ms. Glenn walked into Petitioner's office and told her to call Ms. Grammith. Ms. Glenn knew Petitioner never made the call because Ms. Grammith called Ms. Glenn yet again on the following Monday. Another elderly regular customer, Ms. Caldwell, stopped Ms. Glenn in the hallway one day to ask "what in the world was going on here." Ms. Caldwell complained that Petitioner never got her appointment right, and always told her that she had come in on the wrong day or at the wrong time. On this day, Ms. Caldwell was left sitting in the hallway outside the lab for three and one-half hours because Petitioner failed to schedule her appointment correctly. On another occasion, Shirley Rehberg, an LCCC employee, emailed Ms. Glenn to inquire about making an appointment for a pedicure. Ms. Glenn responded that Petitioner handled appointments, and provided Ms. Rehberg with information as to Petitioner's office hours. On three different occasions, Ms. Rehberg informed Ms. Glenn that she had attempted to make appointments with Petitioner but had received no response. Ms. Glenn also recalled going to the College registrar's office on unrelated business and being asked by Debbie Osborne, an employee in that office, whether the cosmetology department had stopped taking appointments. Ms. Glenn told her that all she had to do was call Petitioner. Ms. Osborne replied that she had emailed Petitioner several times and never received a response. Ms. McLean concluded that Petitioner was much more interested in the occasional teaching aspect of her position than she was in the quotidian matters of filing, ordering and answering the phone that constituted the bulk of her job. Ms. McLean believed that Petitioner's eagerness to teach, even when her presence on the floor was not requested or needed, sometimes caused Petitioner to neglect her other duties. Petitioner admitted that she preferred teaching, but also testified that she was forced to teach students at least two days per week because Ms. McLean simply skipped work every Wednesday and Thursday. Petitioner stated that when she was on the floor of the lab, she could not hear the phone ringing back in the office. She believed that this might have accounted for some of the missed phone calls. Ms. McLean credibly denied Petitioner's unsupported allegation that she skipped work twice per week. Ms. McLean was in the classroom and lab with her students four days per week, as required by her schedule. Ms. McLean reasonably observed that she would not remain long in the College's employ if she were to skip work every Wednesday and Thursday. When classes were not in session, faculty members such as Ms. McLean and Ms. Glenn were not required to come into the office, whereas the teaching assistant was required to come in and work a full day from 8:00 a.m. to 5:00 p.m. On these faculty off-days, it was especially important for Petitioner to be on the job because she constituted the sole point of contact between students and the cosmetology department. New classes in cosmetology start twice a year, and prospective students may drop by the campus at any time. If no one is present during normal working hours to answer questions or assist the student in applying, the College could lose a prospective student as well as suffer a diminished public image. The evidence established that Petitioner would take advantage of the lack of supervision on faculty off-days to go missing from her position, without submitting leave forms for approval by an administrator as required by College policy. May 4, 2007, was the College's graduation day. Ms. McLean and Ms. Glenn arrived at the cosmetology building at 3:00 p.m. to prepare for the cap and gown ceremony and noted that Petitioner was not there, though it was a regular work day for her. Petitioner was still absent at 4:30 p.m. when the two instructors left the building to go to the graduation ceremony. On May 15, 2007, a faculty off-day, Ms. Glenn came in at 11:00 a.m. to prepare for her class the next day. Petitioner asked Ms. Glenn to handle a student registration matter while Petitioner went out. Ms. Glenn agreed to do so. The students had yet to arrive by 2:00 p.m. when Ms. Glenn was ready to leave. Petitioner had still not returned to the office, forcing Ms. Glenn to ask Ms. West to register the students if they arrived. Ms. Glenn had no idea when or if Petitioner ever returned to work that day. Marcia Brinson was the custodian who cleaned the cosmetology building. During summer session at the College, Ms. Brinson worked from 2:00 p.m. to 11:00 p.m. She would often come into the cosmetology building and find that Petitioner was not there. This was the case on May 15, 2007, when Ms. Brinson entered the building at 2:00 p.m. At around 2:30, an administrator named Glenn Rice came to the cosmetology building with two students whom he was attempting to enroll.9/ Ms. Brinson phoned Ms. McLean at home to inform her of the situation. Ms. McLean phoned the cosmetology office. Petitioner did not answer. At about 2:50 p.m., Ms. McLean called Petitioner at her cell phone number. Petitioner answered and told Ms. McLean that she was at her mother's house, but was about to return to the College. Ms. McLean could not say whether Petitioner ever actually returned to the College that day. At the hearing, Petitioner claimed that the only time she left the cosmetology department on May 15, 2007, was to go to the library at 2:15 p.m. and obtain materials for a class she was going to teach on May 17. This testimony cannot be credited, given that it conflicts with the credible testimony of Ms. McLean, Ms. Glenn and Ms. Brinson. Further belying Petitioner's claim is the fact that she later submitted a leave form claiming "personal leave" for two hours on May 15, 2007. She claimed the hours from 3:30 p.m. to 5:30 p.m. Aside from its inconsistency with Petitioner's testimony, this claim was inaccurate on two other counts. First, the evidence established that Petitioner was away from the office from at least 11:00 a.m. until some time after 3:00 p.m. Second, Petitioner's regular work day ended at 5:00 p.m., thus giving her no cause to claim leave for the half-hour between 5:00 and 5:30 p.m. The College has a "wellness" program in which employees are allowed to take 30 minutes of leave, three days per week, in order to engage in some form of exercise. Petitioner considered wellness time to be the equivalent of personal leave, and would leave her job at the College early in order to keep an appointment at a hair-styling salon at which she worked part-time. Finally, Petitioner was unwilling or unable to comply with the College's parking decal system. At the time she was hired, Petitioner was issued a staff parking pass that entitled her to park her car in any unreserved space on he campus. As noted above, many of the cosmetology customers were elderly women. For their convenience, the College had five spaces reserved for customers directly in front of the cosmetology building. Customers were issued a 5 x 8 "Cosmetology Customer" card that they would leave on their dashboards. If all five of the reserved spaces were taken, the card allowed the customer to park in any space on the campus. On May 30, 2007, the College's supervisor of safety and security, Tony LaJoie, was patrolling the campus on his golf cart. Petitioner flagged him down, asking for help with a dead battery in her car. Mr. LaJoie stopped to help her, but also noticed that Petitioner's car was parked in a space reserved for customers and that Petitioner had a "Cosmetology Customer" card on her dashboard. When he asked her about it, Petitioner told Mr. LaJoie that she had lost her staff parking pass and therefore needed to use the customer pass. Mr. LaJoie told Petitioner that she could go to the maintenance building and get a new staff pass, or get a visitor's pass to use until she found the first pass. Petitioner told Mr. LaJoie that she could not afford the $10 replacement fee for the pass. Mr. LaJoie told her that the $10 replacement fee was cheaper than the $25 to $50 fines she would have to pay for illegally parking on campus. Petitioner promised Mr. LaJoie that she would go to maintenance and take care of the situation. On June 5, 2007, Mr. LaJoie found Petitioner's car again parked in a customer reserved space and with a customer card on the dashboard. Mr. LaJoie wrote Petitioner a parking ticket. Petitioner was well aware that the customer spaces were reserved at least in part because many of the department's customers were elderly and unable to walk more than a short distance. Petitioner nonetheless ignored College policy and parked her car in the reserved spaces. Petitioner never obtained a replacement parking pass.10/ Dean Hickman was the administrator who made the decision to recommend Petitioner's termination to the College's Vice-President, Charles Carroll, who in turn presented the recommended decision to LCCC President Charles W. Hall, who made the final decision on termination. She based her recommendation on the facts as set forth in Findings of Fact 19 through 48, supra. Petitioner's termination was due to her performance deficiencies. Dean Hickman considered Petitioner's pattern of conduct, including her repeated violation of parking policies and her practice of leaving her post without permission, to constitute insubordination. Ms. McLean, who provided input to Dean Hickman as to Petitioner's performance issues, testified that Petitioner's slack performance worked to the great detriment of a department with only two instructors attempting to deal with 20 or more students at different stages of their training. Petitioner's position was not filled for a year after her dismissal. Ms. McLean and Ms. Glenn worked extra hours and were able to perform Petitioner's duties, with the help of a student to answer the phones. The fact that the instructors were able to perform their own jobs and cover Petitioner's duties negates Petitioner's excuse that she was required to do more than one full-time employee could handle. Furthermore, Ms. McLean testified that, despite the added work load, Petitioner's departure improved the working atmosphere by eliminating the tension caused by Petitioner. Because Petitioner was still a probationary employee, the College was not required to show cause or provide specific reasons for her dismissal. Nevertheless, the evidence established that there were entirely adequate, performance-based reasons that fully justified the College's decision to terminate Petitioner's employment. The evidence further established that Petitioner's dismissal was not related to the formal grievance Petitioner filed on June 5, 2007. However, because Petitioner has alleged that her termination was retaliatory, the facts surrounding her grievance are explored below. The grievance stemmed from an incident that occurred between Petitioner and Ms. Glenn on May 16, 2007, the first day of the summer term. A student named Russia Sebree approached Ms. Glenn with a problem. Ms. Sebree was not on Ms. Glenn's summer class roster because she had not completed the Tests of Adult Basic Education ("TABE"), a test of basic reading, math and language skills. Students were required to pass the TABE in their first semester before they would be allowed to register for their second semester. Ms. Glenn told Ms. Sebree that, because the initial registration period had passed, they would have to walk over to the Dean's office and have Dean Hickman register Ms. Sebree for the class. Ms. Glenn phoned Dean Hickman's secretary, Ms. West, to make an appointment. Ms. West told Ms. Glenn that Dean Hickman was out of the office, and that she would make a return call to Ms. Glenn as soon as the dean returned. While waiting for Ms. West's call, Ms. Sebree apparently drifted into Petitioner's office. She mentioned to Petitioner that she hadn't passed the TABE test, and Petitioner told her she could take care of the matter by making an appointment for Ms. Sebree to take the test. Ms. Glenn overheard the conversation and walked in to stop Petitioner from making the call. She told Petitioner that she had a call in to Dean Hickman, and that she and Ms. Sebree would have to meet with the dean to determine whether Ms. Sebree could register for Ms. Glenn's summer class or whether she would be required to complete the TABE and wait until the next semester. Ms. Glenn was angered by Petitioner's interference in this matter. Petitioner's actions were beyond the scope of a teaching assistant's duties, unless requested by an instructor.11/ She jumped into the situation without inquiring whether Ms. Sebree had talked to her instructor about her problem and without understanding the steps that Ms. Glenn had already taken on Ms. Sebree's behalf. Eventually, Ms. West returned the call and Ms. Glenn and Ms. Sebree met with Dean Hickman. After the meeting, Ms. Glenn requested a private meeting with Dean Hickman. She told the dean that she was very upset that Petitioner had taken it upon herself to take over the situation with Ms. Sebree, when Ms. Glenn was taking care of the matter and Petitioner had no reason to step in. Dean Hickman told Ms. Glenn that she would not tolerate a staff person going over an instructor's head in a matter involving a student. Dean Hickman asked Ms. Glenn to send Petitioner over to her office. Dean Hickman testified that she met with Petitioner for about 30 minutes, and that Petitioner left her office requesting a meeting with Ms. Glenn. Dean Hickman did not testify as to the details of her meeting with Petitioner. The dean knew that Petitioner was angry and cautioned her to conduct herself in a professional manner when speaking with Ms. Glenn. Petitioner testified that Dean Hickman "yelled" at her, "I will not have you undermine my instructor's authority." Petitioner professed not to know what Dean Hickman was talking about. The dean repeated what Ms. Glenn had said to her about the incident with Ms. Sebree. According to Petitioner, Ms. Glenn had told the dean "some lie," an "outlandish" tale in which "I went in telling Russia that she didn't have to do what Vicki said, or something like that." Petitioner told Dean Hickman her version of the incident, which was essentially that nothing happened. She was showing Ms. Sebree "some basic algebraic equations and stuff and there was no conflict or anything in the office." Petitioner asked for a meeting "so I can see what's going on." Petitioner returned to the cosmetology department. She was visibly upset. She asked for a departmental meeting with Ms. McLean and Ms. Glenn that afternoon. Ms. McLean agreed to move up the weekly departmental meeting in order to take care of this matter. The meeting convened with Ms. McLean going over the usual day-to-day matters involving the program. Once the regular business was completed, Ms. McLean stated that she wanted Petitioner and Ms. Glenn to air out their problems. Petitioner asked Ms. Glenn why she wanted to tell lies about her. Ms. Glenn said, "What?" and Petitioner stated, "You're a liar." Ms. Glenn denied the accusation. Petitioner repeated, "You're nothing but a liar." In anger and frustration, Ms. Glenn stated, "Look here, sister, I am not a liar." Petitioner responded, "First, you're not my sister and, secondly, my name is Stephanie K. Taylor, address me with that, please."12/ Ms. McLean testified that both women were "pretty heated" and "pretty frustrated" with each other. She concluded the meeting shortly after this exchange. After the meeting, Petitioner and Ms. McLean spoke about Ms. Glenn's use of the word "sister," which Petitioner believed had racial connotations. Ms. McLean told Petitioner that she did not believe anything racial was intended.13/ Ms. Glenn had never been called a liar, and in her frustration she blurted out "sister" in the same way another angry person might say, "Look here, lady." Petitioner seemed satisfied and the matter was dropped for the remainder of the day. Dean Hickman testified that Petitioner brought some paperwork to her office that afternoon after the departmental meeting. Petitioner told her that she felt better about the situation, that they had aired their differences and everything now seemed fine. The dean considered the matter resolved. By the next morning, May 17, 2007, Petitioner had changed her mind about the comment. She sent an email to each member of the College's board of trustees, President Hall, Dean Hickman, and various other College employees that stated as follows: Hello. I am Stephanie K. Taylor, Teaching Assistant for Cosmetology. I am writing because of an incident that took place on yesterday, May 16, 2007. Nancy Carol McLean (Coordinator/Instructor), Vicki Glenn (Instructor) and I met for a meeting to discuss concerns in our department approximately 11:35 am. During our discussion, Vicki Glenn made a racial comment to me. I disagreed with her concerning a statement she made. Her reply to me was: "No, 'Sister', I did not!" I was very offended by her remark and I replied, "My name is Stephanie Kay Taylor." Following the meeting, I spoke with Ms. McLean and I decided to write this incident statement. If I allow an instructor to call me something other than my name, these incidents will continue. Ms. McLean had repeatedly cautioned Petitioner to respect the College's chain of command. As Petitioner's immediate supervisor, Ms. McLean was supposed to be Petitioner's first resort insofar as work-related complaints. Petitioner was in the habit of going straight to Dean Hickman with complaints before discussing them with Ms. McLean. However, in this instance, Petitioner did show Ms. McLean the text of her statement before she distributed it. Ms. McLean advised Petitioner to take the matter straight to Dean Hickman and discuss it with her before distributing the statement. Petitioner did not take Ms. McLean's advice. Though Petitioner emailed the statement to Dean Hickman, the dean did not actually see the statement until it had been distributed to several other people. No evidence was presented that Petitioner suffered any adverse consequences from distributing her written statement outside the College's chain of command. To the contrary, Petitioner testified that Ms. McLean advised her that if she felt strongly about the matter, she should file a formal grievance pursuant to the LCCC Policy and Procedure 6Hx12:6- 10.14/ Ms. McLean provided Petitioner with the forms she needed to file a written grievance. Petitioner also sought and received the advice of a human relations specialist at the College as to how to file a formal grievance. Both Ms. McLean and Ms. Glenn convincingly testified that they had no ill feeling toward Petitioner for filing a grievance. Ms. McLean stated that the grievance had no impact on her at all. Ms. Glenn was not disturbed by the grievance because she had done nothing wrong and believed the process would vindicate her. Petitioner filed her formal written grievance on June 5, 2007. Vice president Marilyn Hamm began the investigation in the absence of Human Resources Director Gary Boettcher, who picked up the investigation upon his return to the campus. Dean Hickman also participated in the investigation of Petitioner's grievance. They interviewed the witnesses to the incident. They also interviewed 11 cosmetology students and asked them whether they had ever heard Ms. Glenn make any "derogatory or racial slurs or comments" relative to Petitioner. None of the students had heard Ms. Glenn make any remarks fitting the description in the query.15/ One student told the investigators that he had heard Petitioner speak disparagingly of Ms. Glenn, but not vice versa. On June 19, 2007, Mr. Boettcher issued a memorandum to Petitioner that stated as follows: You filed a grievance alleging that Ms. Vickie Glenn made a racial comment to you by calling you "sister." You further stated that you want the same respect that you have given to others and that you be referred to by your name, Stephanie K. Taylor. I was not available when you filed the grievance therefore it was referred to Vice President Hamm who began the investigation and upon my return it was referred to me. Ms. Hamm interviewed yourself, and Carol McLean. Ms. Hamm and I then interviewed Ms. Glenn. Subsequently, Ms. Hickman, the Dean of your department, and I interviewed a random sampling of students in the cosmetology program. The incident you described, when you were referred to as "sister" was discussed with both Ms. McLean and Ms. Glenn, who were in the meeting when the comment was made. They both acknowledged that you were in fact referred to as sister. Neither of them viewed it as a racial comment but a term that was used in the heat of the discussion in which you and Ms. Glenn were very much at odds on a subject. The students were interviewed and asked if you had discussed or made mention of an evaluation that you received and also whether that had ever heard Ms. Glenn talk derogatorily or made any racial comments relative to you. Some of the students heard of talk of your evaluation but none of them heard it first hand from you. None of the students ever heard Ms. Glenn refer to you in any racial or disparaging way. In view of the investigation it is concluded that you were called "sister" but not in a negative or racial inference and that Ms. Glenn has not referred to you in a derogatory or racial manner. This has been discussed with Ms. McLean and Ms. Glenn in that they were asked to refer to you strictly by your name and in a professional manner. I trust this will be satisfactory to you and if you have any questions please feel free to contact me. Petitioner's employment with the College was terminated on June 28, 2007, nine days after Mr. Boettcher's memorandum. No evidence was presented to establish a causal connection between these two events, aside from their temporal proximity. As noted extensively above, the College had more than ample justification to terminate Petitioner's employment before the conclusion of her six-month probationary period. The greater weight of the evidence establishes that Petitioner was terminated from her position with the College due to poor job performance and conduct amounting to insubordination. The greater weight of the evidence establishes that the College did not retaliate against Petitioner for the filing of a grievance alleging that Ms. Glenn had made a racially discriminatory remark towards Petitioner. Rather, the greater weight of the evidence established that College personnel assisted Petitioner in filing her grievance and that the College conscientiously investigated the grievance. The greater weight of the evidence establishes that the College has not discriminated against Petitioner based on her race.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order finding that Lake City Community College did not commit any unlawful employment practices and dismissing the Petition for Relief. DONE AND ENTERED this 30th day of June, 2010, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON 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 30th day of June, 2010.
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 in the case is whether Respondent discriminated against Petitioner in disciplinary matters and in termination of Petitioner's employment because of race or in retaliation for complaints filed against Respondent.
Findings Of Fact Health Management Associates, Inc. (HMA), is the parent company for Respondent Orlando HMA, Inc., d/b/a University Behavioral Center (UBC). UBC provides residential care and treatment to juveniles. At all times material to this case, Respondent employed Walter F. Gibson (Petitioner) as a mental health technician. Petitioner is black. Petitioner's job evaluations were acceptable, and there is no evidence that he did not meet the requirements of the job at the time Respondent hired him. On November 24, 2004, the parties filed a Statement of Agreed Facts that provides as follows: UBC is a residential treatment center that offers a variety of programs including a program to which patients are committed by the courts under the direction of the Florida Department of Juvenile Justice. Petitioner was a staff member at Respondent's UBC facility. In late November 2002, a UBC patient accused Petitioner of abuse. Pursuant to UBC policy, Petitioner was placed on one week administrative leave pending an investigation. Petitioner was ultimately exonerated by Florida's Department of Children and Families and returned to work. Petitioner was paid for the full term of his administrative leave. Petitioner's initial complaint was made to the Florida Public Employees Relations Committee ("PERC") on or about January 6, 2003. PERC forwarded the complaint to the Florida Commission on Human Relations ("FCHR"). Petitioner's initial Charge of Discrimination claiming retaliation, FCHR Number 23-01298 was dismissed with a "No Cause" determination on May 7, 2003. On January 13, 2003, Petitioner filed a second Charge of Discrimination. On May 23, 2003, Petitioner received a paid suspension after an alleged conflict with co-workers. On May 27, 2003, Petitioner asked to amend his Second Charge of Discrimination to allege retaliation. On October 7, 2003, Petitioner was found allegedly asleep and his employment was terminated later that day. On October 9, 2003, Petitioner amended his Charge of Discrimination alleging that his termination was due to his race and in retaliation of his complaining of discrimination. Respondent has a policy against discrimination. According to the employee handbook, Respondent "acknowledges the commitment to Equal Employment Opportunity Employment regardless of race" and other protected classifications. The handbook sets forth a procedure for resolving issues related to harassment. The handbook also sets forth a "problem-solving procedure" to utilize in resolving issues related to working relationships. Petitioner received a copy of the UBC employee handbook upon beginning his employment with Respondent. The problem-solving procedure sets forth a series of steps, including verbal discussions with an immediate supervisor and then, if necessary, a department manager. If the problem cannot be resolved at that level, an employee is to contact the Human Resources Director who may ask the complainant to submit the complaint in writing. The written complaint is subsequently forwarded to the Facility Administrator for review and resolution. Although Petitioner questioned the practice of late- signed group therapy session notes (discussed herein) there is no credible evidence that Petitioner followed the appropriate reporting process prior to filing the complaint at issue in this case. There is no evidence that Petitioner's concerns of discrimination based on race or in retaliation for complaints filed were the subject of any dispute resolution procedures identified in the employee handbook. During the time Petitioner was employed as a mental health technician at UBC, group therapy sessions were conducted twice daily for UBC residents. The therapist or mental health technician in charge of the session was responsible for making notes about the session. Petitioner believed that session notes were to be signed by the therapist or mental health technician in charge of the session when the notes were written. Nonetheless, on occasion, Petitioner was asked to sign his notes some time after the sessions were completed, because he had not signed them when he drafted the notes. For reasons unclear, Petitioner apparently believed that late-signed session notes constituted Medicaid fraud. Petitioner testified that at some point during the spring of 2002, he questioned his supervisor about the legality of late-signed session notes and was told to sign them. There is no evidence that any employee of Respondent asked Petitioner to sign notes for therapy sessions Petitioner did not conduct. There is no evidence of any legal requirement requiring that session notes be signed at the time they are drafted. On August 2, 2002, Petitioner received a verbal reprimand for numerous instances of tardiness to work. Petitioner asserts that the reprimand was discriminatory; however, the evidence establishes that other employees tardy to work, including white, black, and Hispanic employees, received verbal reprimands. Some tardy employees of various races were excused for reasons that were determined to be legitimate by Respondent. There is no evidence that any employee's race was a factor in whether or not tardiness was excused. There is no evidence that Petitioner's race was a factor in the reprimand. The verbal reprimand was not in retaliation for any pending complaints filed by Petitioner because he had not yet filed any complaints. Petitioner testified that in August 2002, he anonymously called Respondent's corporate compliance telephone number to inquire as to whether the practice of late-signed session notes was illegal. Respondent's records do not indicate that such a call was received, and there is no evidence that Respondent took any related action. In November 2002, one or more patients at UBC apparently called the abuse hotline operated by the Department of Children and Family Services (DCFS) and reported Petitioner for alleged abusive behavior. Petitioner suggests that the abuse allegation came, not from patients, but from administration sources in the facility. There is no evidence supporting the assertion, which is also contrary to the Statement of Agreed Facts. Standard UBC practice when an employee is reported to the abuse hotline is to move the employee to another unit pending resolution of the matter. An employee may be prohibited from interacting with children while the report is pending. Depending on the circumstances, an employee may be suspended. A legitimate report of abuse is cause for termination of employment. Petitioner received a three-day suspension after the abuse allegation reported to DCFS was relayed to UBC. Upon returning to UBC, Petitioner was assigned to work in a different unit. The suspension was intended to be a paid suspension, but through clerical error, Petitioner was not paid for the three days at the end of the regular pay cycle. Petitioner did not notify anyone in a position to correct the non-payment at the time the error occurred. There is no evidence that the failure to pay Petitioner for the three-day suspension period was because of his race. The suspension was not in retaliation for any pending complaints filed by Petitioner because he had not yet filed any complaints. The abuse report was subsequently determined to be unfounded. Because the report was unfounded, UBC did not consider the paid suspension to constitute disciplinary action. On December 23, 2002, Petitioner sent what he believed was an anonymous email from a personal Yahoo.com email account to Respondent's corporate headquarters. The email does not specifically mention the issue of late-signed session notes or alleged Medicaid fraud. The email seeks "support to help eradicate ongoing abuse towards employees and helpless youth at one of your hospitals." The email alleges unidentified illegal and unethical behaviors and unspecified violations of corporate policy. The only factual assertion set forth in the email relates to an allegation that the "hospital director" speaking at a meeting said, "he would not support any staff member that file charges against any youth who violently attacks them." Unbeknownst to Petitioner, the email he sent to Respondent's corporate headquarters contained Petitioner's name. On December 24, 2002, the corporate headquarters forwarded Petitioner's email to David Beardsley, the UBC Administrator and Chief Executive Officer. Petitioner's email was also forwarded for investigation to Wayne Neiswender, the Director of Human Resources for HMA, who was based in Naples, Florida. On January 6, 2003, Petitioner submitted a complaint to PERC seeking protection under the "Whistleblower Act." Petitioner testified that he filed a complaint with PERC after being verbally instructed to do so by someone in the Office of the Governor. On January 13, 2003, Petitioner filed a charge of discrimination with FCHR (FCHR Case No. 23-00981) alleging that Petitioner had been discriminated against on the basis of race by being verbally reprimanded for tardiness in August 2002 and for being suspended based on the abuse allegation in November 2002. Petitioner asserted that non-black employees who committed similar infractions did not receive the same discipline. In mid-January 2003, Mr. Neiswender traveled to Orlando and met with David Beardsley to discuss the letter. Mr. Neiswender's investigation focused on gathering information to identify specific instances of the alleged unethical or illegal activities that Petitioner claimed in his email were taking place at the facility. Mr. Neiswender met with Petitioner at a time and location chosen by Petitioner. Petitioner refused to cooperate with Mr. Neiswender's investigation and refused to provide any specific information related to alleged Medicaid fraud or any other unethical or illegal activities he claimed in his email were occurring at UBC. Mr. Neiswender learned from Petitioner that Petitioner had not received payment for the three-day suspension during the appropriate payment cycle. Mr. Neiswender informed the appropriate UBC personnel and a check was issued to Petitioner to cover the unpaid time. There is no evidence that Respondent's failure to compensate Petitioner for the suspension period was based on race or in retaliation for any complaint. There is no evidence that prior to Petitioner's telling Mr. Neiswender about the non-payment, anyone at UBC other than Petitioner was aware that he had not been paid for the suspension period. Mr. Neiswender met with other UBC employees during his investigation, but was unable to identify any specific instances of unethical or illegal behavior. Mr. Neiswender concluded that Petitioner's allegations were unsupported by fact. Because the allegations involved improper use of public Medicaid funds, the allegations were also investigated and ultimately dismissed by the Office of the Inspector General for the State of Florida. On February 28, 2003, Petitioner filed a Whistleblower's complaint with FCHR (FCHR Case No. 23-01298) alleging that since August 4, 2002, he had been suspended in November 2002, and "harassed as recently as January 25, 2003," in retaliation for reporting allegations of Medicaid fraud to the HMA corporate compliance telephone line and to PERC. The investigation by FCHR of Case No. 23-01298 was terminated by notice issued on May 7, 2003. The Notice of Termination sets forth Petitioner's right to appeal the termination of the investigation. Petitioner did not appeal the termination of the investigation. During May 2003, Petitioner was working in a UBC program unit identified as "Solutions." The Solutions unit is physically divided into two units ("Solutions I" and "Solutions II") separated by the nurses' station and doorway. Calvin Ross, a black man, was Petitioner's supervisor. On May 13, 2003, Mr. Ross directed Petitioner to stay out of the Solutions I unit, because a female patient in Solutions I alleged that Petitioner acted improperly towards her. Mr. Ross told Petitioner to remain in the Solutions II unit until the matter was resolved. Although Mr. Ross did not identify the female patient to Petitioner, Petitioner believed he knew who the complainant was. Later during the week, Petitioner had several encounters with the complainant, including two incidents at the nurses' station during which Petitioner twice directed the complainant (who was unaccompanied by staff) to return to her unit and to her room. On May 13, 2003, a third encounter between Petitioner and the complainant occurred when Petitioner was called temporarily into the Solutions I unit to assist in returning an unruly male patient to his room. After the situation with the male patient was resolved, Petitioner did not leave the Solutions I unit, but instead saw and began to talk to the complainant. At the time of the encounter, the complainant was outside her room. Petitioner directed her to return to her room. The complainant had permission from the Solutions I staff to be out of her room, a fact of which Petitioner was unaware. The complainant reacted negatively to Petitioner's direction and became very emotional, crying and screaming at Petitioner. Prior to her interaction with Petitioner on that day, the complainant's behavior had been appropriate and controlled. Petitioner then became involved in a confrontation with a Solutions I unit staff member (a white female) in front of unit patients when the staff member explained to Petitioner that the complainant indeed had permission to be outside the room. Petitioner was unhappy that other staff had not supported his instructions to the complainant and told the staff member that she was "unprofessional" and "inappropriate" in such a hostile manner as to cause the staff member to become emotionally upset and to leave the facility before the end of her shift. Petitioner then had yet another confrontation with a different staff member (a white female) on the same day during which Petitioner in front of unit patients told the staff member that she was incompetent, and accused the staff member of joining with patients to "get him." Mr. Ross investigated Petitioner's conduct towards the co-workers on the day in question, and determined that Petitioner's behavior warranted a paid suspension. Mr. Ross was not aware that Petitioner had any pending complaints against the facility at the time he imposed the suspension. Mr. Ross' supervisor and the facility's Human Resource Coordinator approved the suspension. The evidence fails to establish that the suspension was based on race or in retaliation for any pending complaints filed by Petitioner. The employee who left her shift early had a letter placed in her personnel file cautioning that another incident of early departure would result in termination of her employment. Petitioner was also required to complete a Performance Improvement Plan, which he did successfully in June 2003. In September 2003, Respondent became aware that a night employee was discovered sleeping during working hours in the lobby of the facility. The employee supposedly began sleeping during a work-break and did not awaken to return to his shift. Because of previous problems with patients leaving assigned rooms and wandering freely into each other's rooms when unsupervised, Respondent regards sleeping by employees during work hours to be a serious issue. Employees on break are permitted to nap in their cars, but the UBC employee handbook specifically states that "sleeping on the job" will not be tolerated. While investigating the September sleeping incident, Respondent learned that a unit night supervisor was in the practice of allowing employees to combine multiple break time and to sleep "off unit" for the period of the combined break time. Respondent initially intended to terminate the sleeping employee, but because the unit supervisor permitted the practice, the offending employee was reprimanded and warned that another incident of sleeping would result in termination. The night supervisor's practice was not acceptable to administrators of the facility, and a memo dated September 25, 2003, was issued to all employees, including Petitioner, prohibiting the practice of combining break time. The memo further stated as follows: Sleeping: No staff member is to sleep while on duty at UBC. This includes all 3 shifts. Staff on the evening and night shifts are paid an extra differential based on the fact that these hours are perhaps more difficult to work. No sleeping at any time while in the building. In October 2003, Petitioner was found asleep while sitting in a chair in a unit hallway. Two employees, a nurse- manager and an orderly, observed Petitioner sleeping. The orderly called Petitioner's name once to awaken him, but was unsuccessful. After she called his name again, he woke up. The evidence further establishes that Petitioner failed to complete two sets of the "quarterly rounds" (which are done every fifteen minutes) intended to assure that patients are safely in their assigned rooms. Petitioner testified that he was not asleep, but had merely "dozed off" for at most 20 seconds before awaking. Petitioner's testimony on this point is discredited due to the fact that the orderly had to twice call his name before he awoke, and to his failure to complete two sets of quarterly rounds (covering a period of 30 minutes). As a result of being found sleeping while on duty, Petitioner's employment was terminated. Since the September 2003 memo was issued, employees found sleeping on duty have been terminated. Such terminations have included white and Hispanic employees. There is no credible evidence that any employee found asleep on duty since the memo has continued to be employed at UBC. There is no evidence that Respondent's termination of Petitioner's employment was based on or related to his race, or in retaliation for any complaint filed by Petitioner.
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 Petition for Relief filed by Walter F. Gibson in this case. DONE AND ENTERED this 2nd day of March, 2005, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of March, 2005.
