The Issue Whether Respondent should be required to pay Petitioner’s claimed overpayment of salary as calculated in the amount of $2,603.86, for the pay periods between July 2, 2007, and July 26, 2007, and whether the effective date for modification in salary as assigned by Petitioner should be consistent with the date of Respondent’s amended contract.
Findings Of Fact Respondent is currently employed as a tenured associate professor in the FAMU College of Pharmacy and Pharmaceutical Sciences (COPPS). At all times material, he has been a tenured employee of FAMU. He currently resides in Tampa and is responsible for developing a professional experience program from Tampa to Orlando, Florida. Although at hearing Respondent orally requested reimbursement of his travel expenses to the hearing, at no time prior to hearing did he object to the scheduling of hearing in Tallahassee, Florida. His oral request is here treated as a motion, to be resolved in the following Conclusions of Law. Herein, FAMU contends that $2,603.86,1/ amounting to 1.9 pay periods (July 2, 2007-July 26, 2007), constitutes an overpayment of salary FAMU made to Respondent in the capacity of interim dean, together with concomitant federal tax considerations. FAMU now seeks reimbursement from Respondent. Respondent’s first employment contract appointing him to serve in an administrative capacity as interim dean and associate professor for COPPS shows a signature on a line provided for “President/Provost/Vice-President” on June 16, 2004, acceptance by Respondent on July 1, 2004, and appointment dates of August 8, 2004, through August 7, 2005. That contract provided for an approval by the president or the president's designee. Prior to that first interim appointment, Respondent was employed in COPPS as an associate dean and associate professor, and Dr. Henry Lewis III was employed as Dean of COPPS. In 2007, Respondent signed three contracts, only the first of which was for employment as interim dean. All 2007 employment contracts referenced throughout this Recommended Order specified that: This employment contract between Florida A&M University Board of Trustees and the employee is subject to the constitution and laws of the State of Florida, the rules and guidelines of the Board of Governors, the regulations of the University Board of Trustees (BOT), and in accordance with Article 6, Nondiscrimination, Article 1.3, Employment Contract, and Article 20, Grievance Procedure and Arbitration of the United Faculty of Florida (UFF) contract with Florida A&M University. Neither this employment contract nor any action or commitment taken pursuant to it, is final or binding upon the parties until, and unless, the signature of the University President, [sic] President’s designee, as approving authority and the signature of the employee have been affixed and the employment contract has been returned to the appropriate authority as specified herein. The signature of the employee affixed hereto shall not be deemed a waiver of the right to process a grievance with respect hereto. * * * ... This offer of employment will be withdrawn and not processed for payroll if this employment contract is not signed and returned to the appropriate authority within twenty (20) days from the date of offer. (Emphasis supplied.) Faculty employment contracts are prepared by the Office of the Provost and Vice President of Academic Affairs and forwarded to the FAMU Payroll Office for appropriate processing and payment. All contracts in evidence have been treated by all parties as valid, regardless of whether they bear FAMU’s president’s signature or the signature of anyone on his behalf signed on the president's "line." Presumably, this is because the signator for the vice-president/provost was the president's "designee" with final approval authority on behalf of the president. At no time has Respondent ever filed a grievance with regard to any 2007, employment contract. Respondent’s first 2007, employment contract reflected an administrative appointment as interim dean and associate professor. It was offered on May 31, 2007; was executed by Respondent on June 15, 2007; and was signed by someone on FAMU's President's signature line on June 22, 2007. Thereby, Respondent was employed at an annual salary rate of $158,417.00, and a biweekly amount of $6,069.61. The period of appointment specified was from July 1, 2007, through June 30, 2008. At all times material, FAMU Board of Trustees Policy No. 2005-15 has provided, in pertinent part: Application This policy applies to employees holding both a tenured faculty position and serving as a senior administrative and academic officer of the University, but who are leaving their senior administrative and academic office to return to the tenured faculty or an administrative position. Examples of such positions are the vice presidents, assistant or associate vice presidents, deans and directors. Lack of Property Interest in Office Senior Academic and Administrative Officers are employees “at will”; thus, the President may not purport to confer on any officer a period of employment of fixed duration or otherwise confer any property interest in such employment. However, such an officer may be appointed to a period of employment as provided in Rule 6C3-10.105 Florida Administrative Code, so long as the instrument accomplishing such an appointment status states clearly that the incumbent officer is subject to removal at any time, during that period, at the option of the President. [sic] Joint Appointments Tenure status as a member of the faculty, held concurrently by any Senior Academic and Administrative Officer of the University is separate and distinct from the administrative office, and such tenure status is governed by the provisions of Rule 6C-10.211, Florida Administrative Code. Those tenure rules and regulations have no bearing upon and do not govern the administrative appointment covered by these regulations, and the Senior Academic and Administrative Officer does not have tenure in his or her administrative positions. Return to a Faculty Position A Senior Academic and Administrative Officer who holds a concurrent tenured faculty appointment may return to that appointment with all the rights and responsibilities of faculty in his or her original department . . . The salary of the administrator shall be adjusted . . . to a . . . faculty salary. (Emphasis supplied.) None of Respondent’s 2007, contracts contain any language about "subject to removal at any time at the option of the President," but both parties herein have signed new contracts on that basis. At all times material, FAMU Board of Trustees Policy Number 2005-19, has provided, in pertinent part: 4. Salary Overpayments The University will seek reimbursement for salary overpayments and as stated in federal and state laws and policies. [2/] In a letter dated June 28, 2007, FAMU President-Elect James H. Ammons offered Dr. Henry Lewis III the position of Dean of COPPS. Dr. Lewis accepted the position as dean in a letter dated July 2, 2007. Also on July 2, 2007, a general faculty meeting was held. At that time, President Ammons introduced his leadership team and announced that Dr. Lewis had been reinstated as Dean of COPPS. Respondent was present when this announcement was made. A contract as Dean of COPPS was offered by the Provost/Vice-President to Dr. Lewis on July 3, 2007. Dr. Lewis executed the contract on July 3, 2007. The copy in evidence does not show any signature by the President or on his signature line. This contract reflects Dr. Lewis’s retroactive appointment as Dean of COPPS for the period July 1, 2007, through June 30, 2008, the same period as was set forth in Respondent’s then-existing contract as interim dean. (See Finding of Fact 9.) In a letter dated July 9, 2007, and received by Respondent on July 12, 2007, President Ammons notified Respondent, “pursuant to FAMU Regulations 10.102 and 10.105,” of Respondent’s “change-in-assignment and removal of administrative duties as interim dean of” COPPS, “effective to June 30, 2007.” Respondent was further informed thereby that his duties and responsibilities as an associate professor would be provided to him by Dean Lewis. The letter also states, in pertinent part: In addition, your annual salary will be adjusted in accordance with the rules and regulations of the FAMU Board of Trustees. A new employment contract reflecting this employment action will be subsequently provided to you. (Emphasis supplied). FAMU Regulation 10.102, provides, in pertinent part: * * * (9) An employee assigned to an acting appointment (temporary change in assignment), in instances in which responsibilities have changed, may be provided a pay increase. Upon the employee’s return to his or her original responsibilities, the pay may be adjusted to the employee’s responsibilities. (Emphasis supplied.) * * * (11) 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 No. 2005-15 (Separation and Return of Senior Administrative and Academic Officers to Faculty), as now or hereafter amended. (Title underlined in original; other emphasis supplied.) FAMU Regulation 10.105, provides, in pertinent part: (3) Appointments (e) No appointment shall create any right, interest, or expectancy of continued employment. . . . FAMU Regulation 10.209, provides, in pertinent part: Change-in-Assignment of Faculty and administrative and Professional Employees The President or President’s designee may for the best interests of the University, at any time, assign a Faculty or Administrative and Professional (A&P) employee to other institutional assignments only after consultation with the employee and the departments or other units affected. Regardless of the change-in-assignment, however, the University is committed to compensate the employee. Employees whose assignments are being made in conjunction with a nonreappointment [sic] shall be reassigned pursuant to Regulation 10.207.[3/] This regulation shall only apply to a change in assignment when nonreappointment [sic] is not intended by the University. Work assignments are grievable pursuant to Regulation 10.206. Dean Lewis testified credibly that, following some conversations between himself and Pharmacy Director Angela Hill, Respondent’s class and teaching assignments were made on his behalf by Director Hill. Dean Lewis expected Respondent to immediately begin to prepare to teach four sections of medical terminology for the 2007, fall semester, as referenced on an Assignment of Responsibility Form. The date of the first of these classes was August 27, 2007, and there is no evidence that Respondent did not start teaching that class on that date. However, Respondent did not acknowledge the Assignment of Responsibility Form by signing it until August 29, 2007. Director Hill did not sign it until August 30, 2007, and Dean Lewis signed it on September 7, 2007. Respondent was not assigned any administrative duties or responsibilities as interim dean after July 2, 2007, inclusive of the period in dispute, July 2, 2007, through July 26, 2007. Although he testified that between July 2, 2007, and August 27, 2007, Respondent did some work in the Dean’s office, closing out unspecified administrative matters left in his tray, the greater weight of the evidence reflects that Respondent did not perform any identifiable administrative duties or responsibilities as interim dean after July 2, 2007. Moreover, Respondent requested, and Dean Lewis granted him 88 hours of annual leave for the dates of July 9, and July 16-27, 2007. A new faculty employment contract administratively appointing Respondent as associate professor was offered/signed by the provost/vice-president, on August 10, 2007, and signed by Respondent on either August 10, or August 22, 2007 (the date has been scribbled over), for the period from July 1, 2007, through June 30, 2008. It bears no signature on President Ammons' signature line. This contract reflects an annual associate professor salary rate of $106,442.00, and biweekly amount of $4,078.23. Based upon that first 2007, associate professor contract (see Finding of Fact 25), Respondent’s biweekly salary was supposed to be modified to $4,078.24, beginning with the August 17, 2007, pay-date. However, for the pay-dates between July 2, 2007, and July 26, 2007, FAMU continued to pay Respondent a biweekly amount of $6,069.61, as if he were still interim dean. (See Finding of Fact 9.) Due to a salary amount error made on the first 2007 associate professor contract (see Finding of Fact 25), a revised contract was generated by Academic Affairs. It is clearly labeled “revised” and shows an offering date of September 20, 2007, signed by the provost/vice-president; was signed by Respondent on September 21, 2007; and bears no signature on the president's line. This second, revised 2007, associate professor contract, yet again reflects the appointment dates of July 1, 2007, to June 30, 2008, as did the 2007, interim dean contract (see Finding of Fact 9), and the same appointment dates as the first 2007, associate professor contract (see Finding of Fact 25), but it bears a corrected annual salary rate for associate professor of $122,648.00, and biweekly amount of $4,699.15. Pursuant to this second/revised 2007, associate professor contract, FAMU’s payroll office took steps to correct Petitioner’s salary information, and Respondent began receiving the corrected weekly amount of $4,699.15, beginning with his October 12, 2007, pay-date. Respondent did not then, and does not now, contest the annual salary rate or biweekly amount reflected on this revised contract. In a letter dated October 4, 2007, Jacqueline Lester, FAMU’s associate director of payroll, informed Respondent that, due to an administrative error, FAMU had overpaid him (at the rate of interim dean) by a net amount of $1,748.07. Her letter also informed Respondent that, “Pursuant to Volume V, Section VI of The Bureau of State Payrolls Manual, Office of the State Comptroller,” FAMU’s payroll department was required to recover the overpayment from him. She requested that Respondent refund the overpayment amount, and provided him options of how to accomplish repayment. If he selected neither option, there would be involuntary reductions from his future salary checks. Respondent was obliquely advised of the federal tax consequences of a delay in repayment by a blank form attached to Ms. Lester’s October 4, 2007, letter, which blank form Respondent was requested to fill out and sign in acknowledgment that: I understand that if the full payment is not made by 12-31-2007, the payment amount will be recalculated to include withholding taxes that were deducted from the overpayment. This recalculation will result in an increase in the amount due because the withholding taxes paid cannot be recovered by the state. Petitioner never signed the foregoing form. Ms. Lester’s October 4, 2007, letter also informed Respondent that he had a right to request an administrative hearing, pursuant to Section 120.57, Florida Statutes. By a letter dated October 15, 2007, Respondent requested an administrative hearing. On October 12, 2007, before Respondent requested his hearing, FAMU paid Respondent additional gross pay in the amount of $2,483.68. FAMU provided this additional payment to pay Respondent the wages construed as underpayment beginning with the August 17, 2007, pay-date, due to the annual salary error on his first 2007 associate professor contract. In other words, the October 12, 2007, payment brought Respondent’s biweekly salary up to the appropriate amount of $4,699.16, for an associate professor (see Finding of Fact 27) and reimbursed him for the lesser and incorrect salary amount listed in the first 2007, associate professor contract(see Finding of Fact 25), which incorrect amount had been paid out between the August 17, 2007, and October 12, 2007, pay-dates, apparently covering the period of July 27, 2007, to September 20, 2007. Respondent accepted this money from FAMU. Respondent did not immediately get a Section 120.57(1), hearing upon his October 15, 2007, request. Instead, he got a meeting with Ms. Lester and Ms. Carucha Nelson. Ms. Nelson was Ms. Lester’s subordinate who had in-put Respondent’s salary information. Respondent did not then, and does not now, disagree with FAMU’s salary calculations. He only disagreed/disagrees with "the period that the [revised] contract covered." During their meeting, Ms. Lester told Respondent that he needed to talk to someone in FAMU’s Academic Affairs Department about his primary dispute over the beginning date of his faculty employment contract and that she would take no final action to recoup any money from him until his contractual concerns were resolved. She further told him that his questions about his contract commencement date had to be resolved in order for her to re- calculate, and orally advised him of the tax consequences if the dispute were not resolved by December 31, 2007. Although Ms. Lester testified that she considered this meeting to constitute the administrative hearing Respondent had requested,4/ it is clear that both Ms. Lester and Respondent assumed Respondent would have to get some additional action from the provost’s and university attorney’s office(s) before any FAMU decision about the money became final. On November 8, 2007, Respondent e-mailed the provost. Respondent received no response by November 16, 2007, so on November 16, 2007, Respondent e-mailed Ms. Lester, inquiring what else he could do to get a hearing. She e-mailed him back to the effect that contractual issues should be referred to FAMU’s Academic Affairs and Human Resources Departments, and gave him a hierarchy and/or chronology of persons to contact. On November 19, 2007, she warned him that the matter must be resolved before December 31, 2007. Respondent copied appropriate persons with the foregoing series of e-mails, without specifically requesting an administrative hearing. No one contacted Respondent about this again in 2007. Ms. Lester continued to hold the recoupment in abeyance. FAMU took no final agency action throughout 2007. After an exchange of letters in March 2008, Ms. Lester once again requested that Respondent repay salary overpayments for the period of July 2, 2007, through July 26, 2007, in the amount of $2,603.86. Apparently, this corrected amount included withheld amounts of 2007, federal income tax, which FAMU remitted to the Internal Revenue Service on Respondent’s behalf during 2007, and which amounts Respondent had not reimbursed to FAMU before the end of that year. FAMU ultimately recognized a March 25, 2008, letter from Respondent as a request for formal hearing, and on or about August 20, 2008, the case was referred to DOAH, resulting in this proceeding. Respondent has not refunded any money to FAMU.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered requiring Respondent to repay $2,603.86, to Florida Agricultural and Mechanical University. DONE AND ENTERED this 26th day of January, 2009, in Tallahassee, Leon County, Florida. S ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of January, 2009.
The Issue Whether Respondent, University of West Florida (Respondent or the University), violated the Florida Civil Rights Act of 1992, sections 760.01–760.11 and 509.092, Florida Statutes,1/ by discriminating against Petitioner, Jacqueline R. Pinkard (Petitioner), based upon Petitioner’s race or in retaliation for her participation in protected activity.
Findings Of Fact Respondent is a public university within the Florida State University System. Petitioner was hired by the University in 1998 in the Office of University Budgets (Budget Office) as a Coordinator. In 2004, Petitioner was promoted to the position of Assistant Director of the Budget Office. She received a pay increase simultaneous with the promotion and another pay increase shortly thereafter. She has received several pay increases throughout her employment with the University. From 1998 through June 30, 2014, the Budget Office was a stand-alone department, headed by Valerie Moneyham. In January 2014, Ms. Moneyham was promoted to Assistant Vice President in the Business, Finance, and Facilities Division. Her duties included continued oversight of the Budget Office until June 30, 2014. On July 1, 2014 the Budget Office moved under and became a part of the University’s Financial Services department. There were three employees in the Budget Office: Petitioner, Assistant Director, who is African American/Black; Pam Cadem, Senior Budget Data Analyst, who is Caucasian; and Josie Warren, Coordinator, who is Caucasian (collectively, Budget Office employees). All three Budget Office employees retained their position titles and pay rates upon moving into the Financial Services department. There was another employee in the Budget Office prior to the move named Lourdes Stevens. Ms. Stevens was a Coordinator who began at the University in 2012. Ms. Stevens left the University before the Budget Office became a part of the Financial Services department. The Financial Services department was and is headed by Colleen Asmus, Associate Vice President and University Controller. In her Complaint, Petitioner alleges several bases for alleged race discrimination and retaliation. First, Petitioner alleges that the University discriminated against her based on her race and retaliated against her when Petitioner’s former supervisor, Ms. Valerie Moneyham, issued a “poor” performance evaluation of Petitioner for 2014. Next, Petitioner alleges that her current supervisor, Ms. Colleen Asmus, “accepted Ms. Moneyham’s false and retaliatory evaluation as a means to justifiably deny [Petitioner] an equitable pay increase, position reclassification or promotional opportunity.” And, finally, the Complaint alleges that the University discriminated against Petitioner based on her race when, on December 12, 2014, Ms. Asmus created a position with “very specific ‘preferred’ qualifications . . . as a way to essentially tailor the job to fit a preselected employee or applicant,” who she believed to be “a white male from Financial Services.” The findings of fact pertinent to these allegations are set forth under three separate headings, A. through C., below. Petitioner’s 2014 Performance Evaluation The subject of Petitioner’s first allegation is her performance evaluation covering the period from July 1, 2013, through June 30, 2014 (2014 evaluation). The evaluation cycle for University staff is from July 1 to June 30 each year. Prior to the University’s 2013 evaluations, a different cycle and scoring system was used for performance evaluations. Due to the change in cycling, there were no evaluations for University staff in 2012. The University’s performance evaluation system is electronic-based. The evaluation contains three main parts. The first part is a self-evaluation by the employee. The second part is the supervisor’s evaluation, and the third part is a goal-setting section for the following year. In the second part of the evaluation, supervisors provide numeric ratings on a five-point scale on a series of eight work-related categories, and they also provide narrative feedback on an employee’s strengths and areas for improvement. Since 2013, the numeric scores have been averaged and the resulting number is the employee’s overall evaluation rating. Since 2013, the overall numeric ratings have equated to the following Performance Standards: 1.0 to 1.4 –- “Below” - Not Acceptable 1.5 to 2.4 –- “Below” – Needs Improvement 2.5 to 3.4 –- “Satisfactory” 3.5 to 4.4 -- “Above” 4.5 to 5.0 -- “Superior” It is the University’s standard practice for the supervisor of University staff positions to be the individual who completes those staff position evaluations if he or she was the supervisor for the whole period covered by the evaluation. Ms. Moneyham was the supervisor of record for the Budget Office for the entire period covered by the July 1, 2013, to June 30, 2014, evaluation. Labratta Epting, Human Resources Specialist in the University’s Human Resources department, advised Ms. Moneyham by email dated October 24, 2014, to complete the 2014 performance evaluations for each one of the three Budget Office employees. Ms. Moneyham completed the supervisor’s evaluation portion of the 2014 performance evaluations for all three Budget Office employees because she was their supervisor during the period of time covered by the evaluation. In the electronic performance evaluation system, the evaluations are housed under the name of the current supervisor. In this case, that was Ms. Colleen Asmus, for all three Budget Office employees. For the 2014 evaluation, Ms. Moneyham provided the evaluation information for each of the three Budget Office employees to Ms. Asmus, who cut and pasted the information into the electronic evaluation system. Ms. Asmus completed the future goals section of the evaluation for each of the three Budget Office employees because she was the supervisor beginning on July 1, 2014, and on into the future. In the 2014 evaluation, Ms. Moneyham rated the Budget Office employees as follows: Petitioner received a numeric score of 3.3 and a “Satisfactory” Performance Standard; Ms. Cadem received a numeric score of 3.8 and an “Above” Performance Standard; and Ms. Warren received a numeric score of 3.0 and a “Satisfactory” Performance Standard. In the 2013 evaluation, Ms. Moneyham rated Petitioner with a numeric score of 3.2 and a “Satisfactory” Performance Standard, Ms. Cadem with a numeric score of 3.8 and an “Above” Performance Standard, and Ms. Warren with a numeric score of 3.0 and a “Satisfactory” Performance Standard. In the 2011 evaluation, under the old scoring system, Ms. Moneyham rated Petitioner with a numeric score of 42 and a “Satisfactory” Performance Standard, and Ms. Cadem with a numeric score of 46 and an “Above” Performance Rating. As previously noted, the numeric rating system was changed for all staff evaluations after the 2011 evaluation. Ms. Moneyham increased the numeric score of only one employee from the 2013 to the 2014 evaluation, and that employee was Petitioner. She increased Petitioner’s numeric rating from 3.2 in 2013 to 3.3 in 2014. Petitioner’s Performance Rating was at the “satisfactory” Performance Standard level in 2011, 2013, and 2014. Petitioner testified that Ms. Moneyham’s comments on page 7 of Petitioner’s 2014 performance evaluation under the heading of “Supervisor’s Comments” were not discriminatory and were not retaliatory. Ms. Asmus’ Acceptance of Petitioner’s 2014 Evaluation Ms. Asmus received a copy of the October 24, 2014, email sent by Ms. Epting to Ms. Moneyham directing Ms. Moneyham to complete the 2014 evaluations for Petitioner, Ms. Cadem, and Ms. Warren. When Ms. Asmus met with Petitioner to discuss Petitioner’s 2014 evaluation, Ms. Asmus stated that she believed that they (Petitioner and Ms. Asmus) had started with a clean slate, which began when Ms. Asmus became Petitioner’s supervisor on July 1, 2014. Petitioner’s letter dated December 15, 2014, to the EEOC acknowledges this, quoting Ms. Asmus as saying, “I hope we can move forward with a great working relationship.” No evidence was provided by Petitioner showing that Ms. Asmus used the evaluation scores provided by Ms. Moneyham in the 2014 evaluation to deny Petitioner any benefit of any kind. Denial of Position Reclassification and Promotional Opportunities Interim Promotion In the Complaint, Petitioner alleges that Ms. Asmus used the “poor evaluation” as a means to deny her a position reclassification or a promotional opportunity. At the hearing, Petitioner testified that she should have been made Interim Associate Budget Director, or a similar title, starting when Ms. Moneyham was no longer physically in the same building as the Budget Office employees, which she said was during “Spring 2014.” She also testified that the interim position should have lasted either until Ms. Asmus became the supervisor of the Budget Office employees (July 1, 2014) or, alternatively, until February 2, 2015, when Mr. Djerlek became the supervisor of the Budget Office employees. Ms. Moneyham became Assistant Vice President in January 2014. No evidence was offered stating a more specific date of when Ms. Moneyham moved to a different building than the Budget Office employees. Petitioner did not offer any comparators for this allegation. Petitioner did not offer any evidence that any employee was made Interim Associate Budget Director (or similar title) in this situation. Petitioner admitted on cross-examination that Ms. Moneyham was the supervisor of record for the Budget Office employees until Ms. Asmus became the supervisor for the Budget Office employees. Ms. Rentz, the former University Associate Director for Human Resources, testified that there was no Interim Associate Budget Director or other position into which Petitioner could have been placed because Ms. Moneyham was the supervisor of record over the Budget Office employees until Ms. Asmus became the supervisor of record. That testimony is credited. 2. Reclassification In support of her allegation that she was denied a position reclassification, Petitioner submitted into evidence an email that she sent to her supervisor, Ms. Asmus, on December 11, 2014. In the email, Petitioner asked Ms. Asmus to reclassify all three Budget Office employees (Petitioner, Ms. Cadem, and Ms. Warren) and provide each of them with salary increases. On December 11, 2014, the three Budget Office employees had been under the supervision of Ms. Asmus for approximately five and one-half months. Petitioner’s email further stated that all three employees were well trained. Petitioner, however, provided no evidence either in the email or at the hearing that would reasonably provide a basis for reclassification or promotion of any of the three Budget Office employees. Petitioner did not offer any comparators for this allegation. No evidence was provided showing that there has been a position reclassification or promotion for any of the three Budget Office employees since being moved into the Financial Services department on July 1, 2014. The University provided credible testimony that seniority, or length of time in a position, is not, on its own, a basis for a promotion at the University of West Florida. Denial of Equitable Pay Increase Petitioner also alleged in the Complaint that Ms. Asmus used Ms. Moneyham’s “poor evaluation” as a means to deny Petitioner an equitable pay increase. At the hearing, Petitioner stated that she was denied an equitable pay increase when distributions were made to some staff under a 2013 Employee Pay Equity and Compression Program conducted by the University (Salary Study). Petitioner and the two other employees in the Budget Office did not receive a distribution under the 2013 Salary Study. The University provided credible evidence showing that approximately 25 percent of the staff received increases through the Salary Study, and that Petitioner’s salary was the only salary in the Budget Office that was above the benchmark for receiving an increase. On April 7, 2014, Petitioner filed a discrimination charge with the EEOC claiming that she was denied a distribution from the 2013 Salary Study based on race and retaliation. The EEOC found that the University did not violate discrimination statutes and issued Petitioner a “Right to Sue” letter on September 30, 2014. Petitioner did not file suit in connection with that EEOC discrimination charge. The University has not conducted any equity studies since 2013 and Petitioner has not been excluded from any staff pay increases since 2013. In May 2015, Ms. Asmus asked the Human Resources department to determine whether there was a pay inequity as to Ms. Warren’s salary. Ms. Warren’s position in the Budget Office was “Coordinator” and it remained “Coordinator” when she moved into the Financial Services office. Human Resources reviewed Ms. Warren’s salary against the other Coordinators in the Financial Services department. The Human Resources department determined that Ms. Warren was performing services similar to the Accounting Coordinators in the Financial Services department. The starting salary for an Accounting Coordinator in Financial Services is $45,000. Ms. Warren was earning $32,000 at the time. As a result, in May 2015, Ms. Warren’s salary was increased to $45,000, which is the level of the starting salary for Accounting Coordinators in the Financial Services department. No evidence was offered of a similar increase for Ms. Cadem. Petitioner’s current position is Assistant Director. Before she was promoted to Assistant Director, Petitioner’s position title was Coordinator. The position of Assistant Director is higher in rank than the Coordinator/Accounting Coordinator position occupied by Ms. Warren. Petitioner’s salary is approximately $15,000 higher than Ms. Warren’s salary at the increased level. There is no similar pay inequity in Petitioner’s position as there was with Ms. Warren. Petitioner’s salary is right at the midpoint of the five employees in the Financial Services department at the Assistant Controller/Assistant Director level. Petitioner is earning more than two of the Assistant Controllers and less than two of the Assistant Controllers. Petitioner did not allege or provide any evidence showing that her job duties were more complex than the two Assistant Controllers who have a higher salary than she does. Preferred Qualifications for Associate Controller Position During the fall 2014 semester, Ms. Asmus envisioned an improvement in the efficiency and consistency of the reporting functions carried out by the Financial Services department. She had noticed that there were overlaps and redundancies between the financial reporting area and the budget reporting area. She believed greater consistency in reporting could be achieved if these areas were merged. In November-December 2014, the Financial Services department began the recruitment process for an Associate Controller. The Associate Controller was to be over the reporting areas, which would include financial reporting (production of financial statements), budget reporting, and tax reporting. Florida’s State University System’s (SUS) minimum qualifications for an Associate Controller were posted as the minimum qualifications for the position. They are: Master’s degree in an appropriate area of specialization and four years of appropriate experience; or a Bachelor’s degree in an appropriate area of specialization and six years of appropriate experience. Although the SUS system allows additional requirements be added to the minimum qualifications, none were added in the posting of the Associate Controller position. The preferred qualifications for the position as advertised were: Master’s or Bachelor’s degree must be in an accounting related field. CPA License preferred. Experience with production of financial statements in a higher education setting preferred. Experience with tax accounting in a higher educational setting preferred. Familiarity with budget operations in a higher educational setting preferred. The preferred qualifications were all approved by Human Resources as being job-related before the position announcement was posted. After receiving an applicant pool from the first posting for the Associate Controller position, Human Resources for the University did not “certify” the applicant pool because the percentage of minority applicants was low. The position was posted again and was also advertised again in a publication geared to attract minority applicants. Although additional applicants applied, the percentage of minority applicants decreased. Nevertheless, because it determined that a good faith effort was made to recruit qualified female and minority applicants, Human Resources certified the pool after the second posting. Petitioner pointed out at the hearing that the January 2015 advertisement in the publication geared to attract minority applicants contained an application deadline of December 19, 2014, which was prior to the date of the advertisement. The University’s Associate Director of Human Resources provided credible testimony that the published application deadline was a mistake, and that she was unaware of the error when she certified the pool after the second posting. Ms. Asmus provided credible testimony explaining why each of the preferred qualifications for the Associate Controller position was job related. No contrary evidence as to any of the preferred qualifications was offered by Petitioner. Ms. Asmus advised the three Budget Office employees of the job posting and invited them to apply for the position. Petitioner met the minimum criteria for the position but did not apply for the position. All candidates who met the minimum qualifications for a position would have been considered for the position. Petitioner testified that she did not apply for the position because she did not meet the preferred qualifications. Petitioner explained that in 2012 she had applied for a position as an Executive Assistant in the University’s President’s Office, and she was not selected for the position because she did not have all the preferred qualifications. She said that she did not have event-planning experience. She said that based on that experience in 2012, she did not apply for the Associate Controller position posted in December 2014. Petitioner acknowledged on cross-examination that the Executive Assistant position that she applied for in 2012 was in the President’s Office and that the Financial Services department is in a different division of the University than the President’s Office. There were no limitations in the advertisement that would discourage an individual of any particular race from applying for the position. The advertisement stated on the bottom, “The University of West Florida (UWF) is an Equal Opportunity/Access/Affirmative Action Employer.” Mr. Djerlek was ultimately selected for the Associate Controller position. He is Caucasian and is outside of Petitioner’s protected class. Mr. Djerlek’s qualifications for the position were stronger than Petitioner’s. Mr. Djerlek had experience in all three of the areas that would be under the supervision of the Associate Controller: financial statements/reporting, budget reporting and tax reporting. Mr. Djerlek's background included a great deal of experience with financial statements, tax reporting, and budgeting, along with some budget reporting experience. He is licensed as a Certified Public Accountant. At the final hearing, Petitioner admitted that she did not have experience in two of three areas that the Associate Controller would be supervising: financial statements/reporting and tax reporting.
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 Petitioner's Complaint of Discrimination and Petition for Relief consistent with the terms of this Recommended Order. DONE AND ENTERED this 3rd day of May, 2016, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III 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 May, 2016.
The Issue The issues in this case are: Whether Respondent, Everest University (the "School"), discriminated against Petitioner, Hashim Aboudaya, on the basis of his place of natural origin (Middle Eastern), race (Caucasian), and/or religion (Muslim) in violation of the Florida Civil Rights Act by twice failing to promote Petitioner to the position of associate dean or director of Student Services; and Whether the School retaliated against Petitioner based on his place of natural origin, race, and/or religion by refusing to pay for his doctoral level college courses.
Findings Of Fact Petitioner is a Caucasian male, born in Lebanon and, therefore, of Middle Eastern heritage. He is a practicing Muslim. In July 2003, Petitioner began teaching as an adjunct professor at the School, teaching computer information services and teaching a few classes per year. In or around August 2007, Petitioner was promoted to senior network administrator, a non-teaching position, for the School. At all times relevant hereto, Petitioner served in that position. He currently teaches classes on an as-needed basis also. The School is a private college formerly known as Florida Metropolitan University. There are ten related campuses in the State of Florida, with one being in Melbourne, Brevard County, Florida. The Melbourne campus has two locations, one on Sarno Road and the "main" campus on U.S. Highway 1. Petitioner holds two master's degrees, one in management and one in computer resources and information management, from Webster University in Saint Louis, Missouri. He is pursuing a third master's degree, but it is "on hold" pending his completion of studies in a doctoral program. The doctoral program being sought by Petitioner is in the field of business administration with a major field of study in computer security. The degree is being pursued on-line through Capella University based in Minneapolis, Minnesota. Petitioner's resume indicates that the Ph.D. will be "done in the end of 2007," but it has obviously taken longer than planned. Petitioner has applied for several vacancies listed at the School, but for purposes of this proceeding, the following are relevant: (1) The associate academic dean position advertised in January 2010; (2) The associate academic dean position advertised in April 2010; and (3) The director of Student Services position advertised in August 2009. Associate Academic Dean Positions The following qualifications were specified in the School's job description for the associate academic dean positions. The applicant must: Possess the necessary academic credentials and work related experience mandated by the Company, State accreditation agencies and any other regulatory agency that monitors compliance. Have a minimum of 2 years practical work experience in business or education. Have a minimum of 1 year teaching experience, but The years of experience may be waived at the sole discretion of the college president so long as the incumbent meets the accreditations, State and Federal requirements necessary to hold the position. There was also a job posting (as opposed to a job description) for the associate dean position on a website associated with Corinthian Colleges, Inc. ("CCI"), the School's parent company. That job posting indicated that a master's degree was required for the job and included other requirements not set out in the School's official job description. The college president, Mark Judge, could not verify the accuracy of the job posting. There is no persuasive, credible evidence that the job posting was produced by the School or intended to be used as the basis for filling the associate dean position. The first associate dean position was for the Sarno Road site which housed the School's allied health programs, e.g., medical assistant training, pharmacy technician associate degrees, medical insurance billing and coding, and healthcare administration. Besides the requirements set forth in the job description, the School was looking for someone with health- related experience as well. Terri Baker, a registered nurse, was ultimately hired to fill the associate dean position. Baker had approximately 20 years of experience with the School. During that time, Baker had taught classes in the allied health program, had served as a program director, and was an associate dean at other campuses within the CCI system. Baker does not hold a master's degree, but the job description issued by the School does not require that level of education. The job posting, which appeared in a publication issued by the School, does say that a master's degree is required, but there is no competent and substantial evidence to suggest the job posting supersedes the job description. Notwithstanding her level of schooling, it is clear Baker was a perfect fit for the job. The decision to appoint her, rather than Petitioner, to the position was based on factors other than race, national origin or religion. The second associate dean position was advertised in the Spring of 2010. The job description for that job is the same as the previous associate dean position. However, there are many different duties and expectations associated with the second position. For example, while the first position was related directly to the allied health programs at the School, the second position had a different focus. The person filling this position would be working on the main Melbourne campus, rather than the satellite campus. His or her duties would be directed toward tasks such as transfer of credit analysis, scheduling, and registering new students. The dean would also be responsible for monitoring the School's compliance with accreditation standards and internal audit standards. Betty Williams was hired to fill the second associate dean position. Williams had significant management experience in academic settings. She had served as an academic dean for one of the School's competitors and had extensive knowledge and experience with compliance accreditation standards. As compared to Petitioner, Williams was a much better fit for the position. Her experience would allow her to step into the position and begin working on problems immediately without the necessity of a period of training and acclimation. Director of Student Services Position The director of Student Services was expected to help students who were experiencing hardships in their academic progress. The director would help students who were forced to withdraw from school for financial or other personal reasons. He/she would provide support for students taking online classes and assist students trying to re-enroll into school following dismissal or withdrawal. A close working relationship with students was an important factor in this position. The School's job description listed the following requirement for the director of Student Services position: Bachelor's degree required Minimum of 3 years practical work experience or equivalent training Excellent communication and customer service skills Excellent computer skills The person who ultimately was hired for this position, Stacey Jacquot, was an outstanding employee at the School and had been selected as its Employee of the Year in two different positions. Jacquot is a Caucasian female; neither her religion, nor her place of natural origin was alluded to at final hearing. The hiring of Jacquot, as opposed to Petitioner, for this position was based on Jacquot's experience and background. She had worked in the student services department for the school as both an online coordinator and as a re-entry coordinator. Thus, her experience was directly related to the requirements of the position. Petitioner provided unsubstantiated testimony that by virtue of his teaching a number of classes over the past few years, he has some experience in counseling students concerning their issues. However, even if true, his experience did not match that of Jacquot. Request for Reimbursement for Doctoral Coursework Petitioner alleges retaliation by the School. The specific retaliatory action was the denial of his request to be reimbursed for coursework as he pursued a doctorate degree. In February 2010, Petitioner submitted a request to the School, asking that tuition expenses for his coursework be paid under the School's tuition reimbursement program. The program is set forth in policies maintained by the School and is available to "eligible employees for eligible classes." A benchmark for reimbursable tuition is that the courses being taken enable the employee to be more efficient in a current role or prepare them for a role at the next level of their employment. There are a number of written policies addressing the tuition reimbursement program. Those policies are fluid and have changed from time to time over the past few years. The policies are implemented and overseen by the director of Organizational Development for CCI, Jeanne Teeter. Teeter resides and works in California, corporate home of CCI. It is Teeter's duty to ultimately approve or deny all requests for tuition reimbursement by employees of all of CCI's colleges around the country. Teeter reviewed Petitioner's request for tuition reimbursement pursuant to a preliminary approval by the School's president, Mark Judge. It was Judge's initial decision to approve Petitioner's request, but Judge sent it to Teeter for a final decision. Teeter had never met Petitioner and did not know anything about him, except as found in his personnel file and his application for tuition reimbursement. Teeter, as was her normal procedure, considered the relevance of the degree being sought, not only to Petitioner's current role, but as to potential future roles as well. Because the course work for which reimbursement was being sought related to an advanced degree, a doctorate, Teeter was less inclined to approve it. Approval would necessitate a clear line of sight between the employee's current role to a role that would require a Ph.D. Inasmuch as Petitioner's role as senior network administrator did not require a doctorate and there was no clear line of sight between his present position and that of a professor or management employee requiring one, Teeter declined the request. At the time she made her decision, Teeter was not aware that Petitioner had made a discrimination claim against the School. Her decision, therefore, could not be retaliatory in nature. Rather, she acted in concert with the policies that address tuition reimbursement and made a decision based solely upon those policies. Petitioner appears to be an energetic and hard-working member of the School's staff. His testimony was credible, but was sometimes off the point. Although he is a well-educated person with three college degrees and is pursuing others, it is clear that English is his second language.1/ Petitioner seemed to be sincere in his belief that he was discriminated against, but did not provide persuasive evidence to support that claim.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Florida Commission on Human Relations dismissing the Petition for Relief filed by Hisham Aboudaya in its entirety. DONE AND ENTERED this 21st day of November, 2011, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN 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 21st day of November, 2011.
The Issue Whether the suspension of Petitioner was for good cause shown as indicated in the letter of suspension dated August 19, 1976.
Findings Of Fact Ralph L. Wilson was suspended for a three (3) day work period August 20, 1976 through August 24, 1976. The certified mail letter to Mr. Wilson stated, "This suspension is caused by your unauthorized absence for the period August 10 through August 13, 1976." Appellant Wilson is an Accountant at Florida A & M University working under the direct supervision of William Schnitt, Acting Budget Officer at Florida A & M University. Vinod K. Sharma Associate University Comptroller at Florida A & M University, is the supervisor of William Schmitt. James R. Barrett, Comptroller of Florida A & M University, is the supervisor of Vinod K. Sharma. Appellant Wilson requested a leave of absence from his position to attend a church conference to be held in Lake City, Florida, on August 10-13 1976. His immediate supervisor, Mr. Schmitt, orally refused the request but advised Mr. Wilson that the denial could be appealed to Mr. Vinod K. Sharma. Mr. Wilson appealed in writing the denial by Mr. Schmitt on August 4, 1976 to Mr. Sharma. Mr. Sharma, on August 4, 1976, sustained the denial of the request citing as the basis an August 1, 1976 memorandum to all fund accountants from J. R. Barrett, University Comptroller, asking all fund accountants not to request annual leave during the period from August 3, 1976 through September 7, 1976. The Appellant called in sick on August 9, 1976. He also called in sick on August 10, 1976. He did not call in to explain his absence on August 11, 12, and 13, 1976. Appellant Wilson presented a memo signed by W. H. Baker, M.D., as follows: "8-9-76 Mr. Ralph Wilson visited my office today because of illness." There was uncontroverted testimony that Appellant Wilson attended a church meeting on August 11, 12 and 13, 1976, in Lake City, Florida. Evidence was submitted that Appellant Wilson was an active member of the conference in Lake City who served, according to a portion of the program for the conference, as a member of the Board of Examiners at said conference. Appellant Wilson was transferred to the Comptroller's Office on July 10, 1976. His job description included the following statement by Mr. Barrett: "Your immediate supervisor will be Bill Schmitt, who at his discretion, may assign you additional duties." Appellant Wilson admitted that he was in Lake City, Florida on August 11, 12 and 13, 1976, and took an active part in a church conference in Lake City during that period. He admitted that he knowingly violated the personnel rules of being absent without proper authorization. The Appellant contends that he is discriminated against by his supervisors in that a statement from the doctor is required of other employees and that he is required to bring in certification on sickness anytime that he is sick for more than two (2) days. Appellant contends that his duties assigned are not nearly as much as the Respondent claims them to be, that he was given no credit for coming to work before 8 o'clock or while he stayed at work while his supervisors went on coffee break daily from around 8:15 to 9:00 A.M., that each time he was going to be more than fifteen (15) minutes late he did call in and report the same. Appellant further contends that the Respondent did not prove that he was not sick on the days claimed. He stated he was sick August 9-13, 1976. Appellant Wilson was notified by mail that he was suspended for three (3) days by the Agency Head, President B. L. Perry, Jr. Said suspension notice stated that the suspension was for being absent without authorization. He was without authorized leave.
Recommendation Inasmuch as the Appellant has been orally reprimanded and reprimanded by written notice, it is recommended that the three (3) day suspension without pay be sustained. DONE and ORDERED this 9th day of May, 1977, in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Mr. Ralph L. Wilson Post Office Box 2392 Tallahassee, Florida 32304 Bishop Holifield, Esquire Legal Department Florida A & M University Tallahassee, Florida 32307 Mrs. Dorothy Roberts Appeals Coordinator Department of Administration Room 530, Carlton Building Tallahassee, Florida 32304
The Issue Whether the Division of Administrative Hearings has jurisdiction to hear a petition, brought pursuant to section 120.56(4), Florida Statutes (2010),1/ claiming that a state university's documents concerning the process and criteria for faculty performance evaluation; documents from the university's College of Business setting out a Framework and Standards for Contract Renewal and Promotion for faculty; and documents showing the university's organization structure and delegations of authority are "agency statements" that require rule-making under the Administrative Procedure Act.
Findings Of Fact The Petitioner is a former associate professor with Florida Gulf Coast University. Florida Gulf Coast University is a member of the Florida state university system. Since November 2002, with the voter's adoption of article IX, section 7, Florida Constitution, the state university system has been overseen by a Board of Governors. Further, article IX, section 7, Florida Constitution, designated that each university, including Florida Gulf Coast University, would be managed by a local board of trustees. Thus, the Board of Governors and boards of trustees for universities derive power from the Florida Constitution, not legislative enactment. The Board of Governors enacted Regulation 1.001 that established power and duties for university boards of trustees. Among the Board of Governors' powers and duties delegated to the universities' board of trustees is the authority to manage university personnel and faculty. Dr. Hudson Rogers (Dr. Rogers), an associate provost with the University, testified that the University faculty are organized and represented by the United Faculty of Florida (UFF). The University and UFF are parties to a Collective Bargaining Agreement.2/ The Collective Bargaining Agreement between the Florida Gulf Coast University Board of Trustees and UFF addresses the evaluation of faculty members. Under Article 10 of the Collective Bargaining Agreement, each college within the University is empowered to develop its faculty evaluation procedures and forms consistent with the criteria agreed upon in the Collective Bargaining Agreement. The colleges' promulgation and implementation of their respective evaluation frameworks are not subject to any special process other than that outlined in the Collective Bargaining Agreement. The University's College of Business developed its own evaluation framework for faculty evaluation, which was consistent with the Collective Bargaining Agreement. Further, Dr. Rogers credibly explained that the University faculty voted on and approved the Faculty Performance and Evaluation Document in 2003 that is used to evaluate faculty. In September 2008, the Petitioner signed a Professional Development Plan that included a performance improvement plan. The performance improvement plan identified objectives that the University expected the Petitioner to meet regarding her job duties. In August 2009, after completing a probationary period of the 2008-2009 academic year, the Petitioner was evaluated by her department chair. The department chair rated the Petitioner as not meeting expectations by failing to publish at least one journal article by the end of the 2008-2009 academic year to meet the College of Business scholarship standards. Based on the Petitioner's failure to publish, the department chair recommended that the Petitioner not be reappointed after the 2009-2010 academic year. A peer review committee for the University's College of Business also determined the Petitioner had failed to meet the minimum requirements. The peer review committee informed the Petitioner of its decision on September 12, 2009. On October 21, 2009, the Petitioner filed a grievance pursuant to the Collective Bargaining Agreement. A review of the Petitioner's grievance shows that it alleged numerous violations of the Collective Bargaining Agreement concerning her faculty evaluation and decision not to re-appoint her as an associate professor. On October 22, 2009, the dean for the College of Business informed the Petitioner that "[a]fter reviewing your request and all documents provided me by you and the Peer Review Committee, my decision is that your contract will not be renewed." On November 20, 2009, the University representative, who reviewed the grievance, found that a majority of the claims were time barred or did not constitute a violation. The University representative found "a partial violation of [Collective Bargaining Agreement] Article 10.3A(1)" for failing to timely finalize the Petitioner's annual evaluation for the 2008-2009 academic year. The University representative noted that the Collective Bargaining Agreement did not "indicate any action to be taken in response to this violation." On December 10, 2009, the Petitioner filed a Request for Arbitration under the Collective Bargaining Agreement. On February 23, 2010, the University received the Petitioner's Notice of Intent to Arbitrate. On April 12, 2010, an arbitration hearing was held on the Petitioner's grievance. The arbitrator held that the Petitioner's Notice of Intent to Arbitrate was not timely under the Collective Bargaining Agreement; thus, it was considered withdrawn. On September 22, 2010, the Petitioner's supervisor, Dr. Robert O'Neill (Dr. O'Neill), wrote the Petitioner, confirming that her last date of employment at the University was December 17, 2010. The Petitioner's last day of employment with the University was December 17, 2010. On February 14, 2011, the Petitioner filed the Petition. The Petitioner alleged that the University is an "agency" within the definition of chapter 120 and is subject to the Administrative Procedure Act. Further, the Petitioner alleged that the University has made the following agency statements that are unadopted rules: (1) the Faculty Performance Evaluation Document for 2003 and 2008; (2) College of Business Framework and Standards for Contract Renewal and Promotion adopted on April 14, 2006, and revised on February 5, 2010 ("Framework"); (3) Delegation of Authority Memorandum accessed on October 7, 2010, from the University's web-site; and (4) Florida Gulf Coast University's organizational chart. The Petitioner also alleged that her substantial interests are affected "because her employment has been terminated based on several unadopted rules involving published documents from the [Florida Gulf Coast University] President, to the Provost, to the College." Further, a reading of the Petitioner's challenge here shows that she alleged that the University failed to the follow the "unadopted rules" when it evaluated her and decided not to re-appoint her to a teaching position. For example, the Petitioner claimed that the Florida Gulf Coast University Faculty Performance and Evaluation document is an agency statement that was not adopted as a rule under chapter 120. Next, the Petitioner alleged that Dr. O'Neill, who was her supervisor, failed to follow this Faculty Performance and Evaluation document when he evaluated her.
Findings Of Fact Upon consideration of the admissible oral and documentary evidence adduced in this cause, the following pertinent facts are found: Petitioner received his bachelor of science and master of science degrees in mathematics from Georgia Institute of Technology in 1963 and 1966 respectively. In 1969, petitioner was awarded his doctoral degree in mathematics from the University of Maryland, where he held a National Science Foundation Fellowship for the academic year 1968-69. In September of 1969, petitioner began his teaching and research appointment with respondent as an assistant professor of mathematics, a tenure-earning position. Under successive one year contracts, petitioner has been employed by respondent for seven years, with annual raises in salary and favorable annual evaluations. Prior to 1970, the university had two separate mathematics departments. The math department within the College of Basic Studies offered only freshman and sophomore math courses and the math department within the College of Liberal Arts provided upper level undergraduate math courses and those offered in the master's degree program. In 1970, the two departments were merged and became a single department within the College of Natural Sciences. In 1971, the math department began its Ph.D. program with emphasis on applied mathematics. During the early stages of the merger between the two separate math departments, conflict and dissension among faculty members existed. This conflict was manifest in the removal of the department chairman, Dr. Jogindar Ratti, in 1972. Petitioner, along with many other faculty members, played an active role in the removal of Ratti. In May of 1972, a poll among faculty members was taken as to their preference between twenty-nine faculty members for an interim chairman. In this poll, petitioner ranked tenth out of twenty-nine. Dr. Ratti ranked twenty-ninth and Dr. Manoug Manougian ranked twenty-eighth. The testimony showed that Manougian's rating was due to his close social and philosophical affiliation with the removed chairman, Dr. Ratti. Dr. Fred Zerla, who ranked fourteenth in the faculty poll, was appointed Acting Chairman by the administration and a search committee was formed to seek a new chairman. In 1974, after the search committee was unable to secure a candidate, Dr. Manougian was appointed by the administration as chairman. Petitioner, along with several other members of the faculty and the search committee, voiced objections thereto. Petitioner was involved in another sensitive issue within the department. Due to his interest in the course being taught, petitioner served on a textbook selection committee, in spite of warnings from several faculty members that such service could jeopardize his tenure consideration. This committee rejected the use of a textbook coauthored by Dr. Ratti and Dr. Manougian. Dr. Manougian felt that the committee made a poor choice in rejecting his book, but testified that this played no part in his evaluation of petitioner for tenure. Another member of the department, Dr. Samuel Isaak, who felt priority should be given to faculty-written textbooks, strongly expressed his objection to the faculty regarding this committee's rejection of the Ratti-Manougian text. The faculty voted to uphold the committee's conclusion. The open conflict and dissension within the math department has abated somewhat since Manougian's chairmanship. However, there is strong evidence that philosophical divergence and factionalization still exists among the faculty members. This divergence centers in part upon issues of personality and competence and in part upon the issues of the relative importance of the graduate versus the undergraduate program and the relative need for active research mathematicians who can attract and direct students pursuing graduate degrees versus quality teaching in the undergraduate as well as the graduate programs. The University of South Florida presently has a student enrollment of over 23,000. In any given quarter, approximately one-fourth of this enrollment, or almost 6,000 students, are taking math courses. There are thirty-one faculty members within the department and approximately twenty students are enrolled in the mathematics doctoral program. Approximately another twenty students are enrolled in the master's level program and are potential Ph.D. candidates. Some 150 math majors are enrolled in the undergraduate program. Thus, it is clear that a major responsibility of the mathematics department is to provide instruction to undergraduates and nonmath majors. In his fifth year of continuous employment at the University, petitioner was considered for tenure, and a decision was made to defer final consideration for one year. From the time of his employment with respondent to the present, tenure has been described by the Board of Regents and the respondent as a condition attained through highly competent research and teaching, or other scholarly activities, length of service and contributions to society. The guidelines for tenure have included a requirement for a high degree of competency in three areas: teaching, research or other creative activities and service, with emphasis placed, by Florida Statute, upon teaching. In the 1974/75 academic year, petitioner, then in his sixth year of continuous employment, prepared what is known as a "tenure packet" for consideration by those who would be voting on the issue, utilizing a standardized form and supplementing it with additional materials and correspondence. Included on the form was a listing of professional meetings and seminars attended and addressed, membership in professional and civic organizations, two articles published or accepted for publication in refereed journals, three nonpublished works and service on University committees. Briefly summarized, the results of the tenure consideration process were as follows: A peer evaluation of petitioner was completed by an advisory committee. This committee was composed of one person from each of the four programs into which the math department is organized. One member of the committee abstained from all voting since he was untenured and under consideration for promotion. The other three members of this committee were Dr. Ratti, Dr. Isaak and Dr. Yo-Feng-Lin. Dr. Lin testified that ratings were often the result of a compromise vote by the advisory committee. This committee rated petitioner on a five point scale in four areas. In teaching effectiveness, petitioner was rated 4; in research and creative activity, between 1 and 2; in service, 3; and in overall quality, between 2 and 3. The tenured members of the math department faculty voted thirteen in favor of tenure and five against tenure. Two tenured faculty members did not vote. A joint meeting of the department's advisory committee and executive committee took place. This, incidentally, was the first time that the executive committee had been used in tenure decisions. In his statement regarding tenure for petitioner, Manougian represented the vote of this committee to be five against tenure, two for tenure and one abstention. Chairman Manougian evaluated petitioner on a five point scale in four areas. Petitioner was rated four in teaching effectiveness; between one and two in research and creative activity; between three and four in service and between two and three in overall quality. Dr. Manougian recommended that petitioner not be granted tenure. He concluded that petitioner was a competent lecturer and interested in mathematics. In the area of scholarly activities, Manougian concluded that petitioner's performance was below average. Dr. Manougian felt that petitioner had not demonstrated a high degree of competence in his six years at the University, that he was not qualified to direct graduate students, and that there was little evidence of scholarly activities on the part of petitioner, even though petitioner had been assigned time for research activities and had taught on the average of only eight hours per quarter. Dr. Manougian stated that his recommendation was based upon consideration and evaluation of petitioner's performance of duties, Board of Regents policies regarding tenure, the educational goals and objectives of the math department, the recommendations of petitioner's colleagues and references and the general evaluations of three internationally known mathematicians from other institutions. Dr. Manougian represented that these outside mathematicians "did not recommend Dr. Gard for tenure." Subsequent letters from these three mathematicians regarding Manougian's citation of their evaluations in his recommendation reveal that their evaluations were made orally in an informal manner, considering only the vita of petitioner and the number of his publications. All three clearly indicated that they felt that quality of research and quality of teaching should be considered in tenure decisions. Since they indicated they had no knowledge of his teaching ability or the quality of his research, it is clear that none of these men intended to convey a specific recommendation against tenure for petitioner. Seven nonadministrative tenured faculty members, sitting as the College of Natural Sciences Tenure Committee, voted unanimously to recommend a denial of tenure for petitioner. Dr. Isaak served on this committee and was the only representative from the math department. This committee based its recommendation on the factors that although petitioner appeared to be an adequate teacher, his research record was poor and his chairman and the joint executive-advisory committee recommended denial of tenure. The College Tenure Committee further noted that petitioner "has indicated he is not interested in research by his request. . .for more teaching assignments and less research time." The Dean of the College of Natural Sciences recommended that petitioner be denied tenure. The Vice-President for Academic Affairs recommended that tenure be denied. This recommendation was based upon a consideration of petitioner's peer evaluation and the chairman's evaluation for overall quality, the chairman's recommendation of denial and the chairman's statement that petitioner was not adequately qualified to direct graduate students in the area of applied mathematics. Petitioner was timely notified of the respondent's decision that his employment contract would not be renewed after Quarter III of the 1975-76 academic year and that the last day of his employment would be June 17, 1976. Informal grievance proceedings within the University were thereafter instituted by petitioner. The matter not having been resolved by such informal means, President Mackey ordered that the petitioner's complaint be considered in a plenary proceeding as provided by 6C-5.08 of the Florida Administrative Code. The complaint was forwarded to the Division of Administrative Hearings, and the undersigned Hearing Officer was assigned to conduct the plenary proceedings. The overwhelming weight of the evidence adduced at the hearing illustrates that in the area of teaching, petitioner is one of the outstanding members of the math department faculty. There was uncontradicted evidence from both students and colleagues that petitioner is innovative, creative and demanding in his teaching and has a good rapport with and a genuine concern for his students. He is described as being alert; well organized, encouraging and enthusiastic in his classroom teaching. His students find him serious and challenging, yet available and accessible for assistance. He stresses student participation and a practical approach to mathematics. His student evaluations show him to be consistently rated above the college median. Petitioner has taught courses ranging from the basic 100 level through the 500 level and has directed, without a reduction in his teaching load, the graduate student research seminar for a year. He has also conducted graduate level independent study programs and has helped develop the basic math sequence required of almost all students at USF. He has been a highly successful teacher in both the advanced calculus sequence - - the first difficult upper level course required of undergraduate math majors - - and in the engineering calculus courses. Petitioner has not been assigned to teach 600 level courses, nor has he directed any doctoral candidates in his area. Apparently, the reason for the latter is that there are, at present, no doctoral students in his area. Petitioner's assignment of duties with regard to teaching has ranged from 55 to 70 percent. Like most faculty members in the math department, petitioner has usually taught eight hours per quarter, though he has requested the opportunity to teach more than eight hours because of his concern with undergraduate teaching, large class sizes and the use of adjunct teachers. Because of his concern and interest in the advanced calculus course, petitioner began work on an advanced calculus textbook. This work was set aside upon the advise of two of his colleagues, including then Acting Chairman Zerla, that a textbook would not be given substantial credit in his second consideration for tenure and that he should therefore concentrate his efforts upon the publication of a research paper. Petitioner has served on various departmental committees. These include the book committee referred to above, the graduate and undergraduate committees, the library committee, the committee to evaluate teaching performance, the committee to make recommendations on general education course offerings and the curriculum committee. He also served as the coordinator of the Ph.D. preliminary examinations. The testimony was to the effect that petitioner was interested in departmental affairs and was always willing to serve and participate in committee work. Approximately five percent of his time was assigned to the area of service. Petitioner's graduate study was primarily in the areas of topology, dimension theory and lie theory. After coming to USF, he did additional work in the area of semi-groups. As noted above, petitioner has addressed professional meetings and the math honor society at USF. He has attended seminars and meetings. He works on, involves his students in and submits problems printed in the American Mathematical Association's Monthly. Petitioner now has four publications in refereed journals, two of these publications are the result of petitioner's work on his doctoral thesis, and were either completed or in progress before he came to USF. A mathematician who worked with petitioner in his doctoral program described his papers as being of high quality and illustrating "extraordinary breadth in the present age of specialization." For the six years in question, between twenty-five and forty percent of petitioner's time was assigned to research and other creative activities. It was the conclusion of those witnesses who recommended that petitioner not be granted tenure that his performance in the area of research and other creative activities was poor and indicated a lack of interest in research activities, a function considered by them to be vital to a math department with a Ph.D. program. These witnesses believed that publication promotes science, that publications are a by-product of research and that publications are indications of excellence. It was felt that research and teaching - the generation and transmission of knowledge - can not be separated and that those who do research remain close to their students. Those witnesses in favor of tenure for petitioner evaluated his scholarship, research and other creative activities as competent and substantial. They further expressed the opinion that while research is vital to the math department, this fact does not mean that everyone in the department is required to be an active publisher. These witnesses felt that it is wrong to measure the contribution of one so talented in teaching primarily in terms of numbers of publications. By employing professors who are outstanding teachers, others whose competence lies primarily in the research field would be able to concentrate on that area. Many did not feel that a good researcher was necessarily a good teacher, but rather that good teaching is a difficult and demanding competence requiring dedication, effort and concentration. These witnesses felt that research and scholarly activity should not be equated solely with publication, but should include work under development, keeping abreast with new developments in the field, challenging students about the developments and the critical examination of data and concepts. Many members of the math department feel that while the top level administrators of the university have always emphasized quality teaching, good teaching is not rewarded in the math department and research is considered more important; even to the detriment of good teaching. While all witnesses admitted that there is no merit to a simple counting of publications, there was general agreement that a shift has occurred from the university's and the department's initial emphasis on teaching and community service to an emphasis on research. Certainly more emphasis is placed upon publications now than in 1970.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is recommended that Dr. James R. Gard be awarded the status of tenure at the University of South Florida. Respectfully submitted and entered this 22nd day of April, 1976, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of April, 1976. COPIES FURNISHED: President Cecil Mackey University of South Florida ADM 241 Tampa, Florida William D. Holland, Jr., Esquire Suite 304, First National Bank Building 215 Madison Street Tampa, Florida 33602 William E. Sizemore, Esquire of Shackleford, Farrior, Stallings & Evans, P.A. Post Office Box 3324 Tampa, Florida 33601 =================================================================
Findings Of Fact Petitioner has been employed in the Department of Psychiatry, College of Medicine, University of Florida, as an Instructor in Social Work since May, 1974. Petitioner completed her undergraduate work in sociology in 1963 at the University of Chile, and earned a master's degree in social work at the University of Kansas in 1974. The Master's of Social Work degree is the terminal degree in Petitioner's field. Since her initial employment, the Petitioner's duties and responsibilities have remained virtually unchanged. She has been assigned to Adult In-patient Services in the Department of Psychiatry at J. Hissis Miller Health Center in Gainesville, Florida, and has been required by the terms of her faculty assignment to devote approximately twenty-five percent of her time to the medical degree program; thirty-two percent of her time to house staff training; twelve percent of her time to teaching/research; and twenty-eight percent of her time to non-instructional patient care, with the remaining portion of her time devoted to various other duties. Petitioner's primary responsibility was providing health care services to patients and instructional services to house staff members, medical students and students from various other disciplines. Petitioner's teaching responsibilities were not performed in the classical classroom setting, but were accomplished in a clinical setting, with some responsibility for guest lecturing outside the hospital. As a non-tenured instructor in the Department of Psychiatry, Petitioner was appointed on a year-to-year basis, and her contracts of employment were for a full twelve-calendar-month period. Sometime in 1975, the Chairman of the Department of Psychiatry furnished to Petitioner a copy of the Board of Regents Policy Manual which included the factors necessary for evaluation in order for an employee in Petitioner's position to achieve tenure. Among these factors was included a provision concerning participation in "research and other creative activities." Accordingly, it is specifically found that all times material hereto, Petitioner knew, or should have know, that research and creative activities were among the factors upon which she would be evaluated should she purse a tenured position at the University of Florida. From Petitioner's initial employment in 1974, through the time she submitted her tenure application in 1978, no written evaluations of her performance were made. In fact, the only written evaluations of Petitioner's instructional efforts during her entire employment period were generated in conjunction with her application for tenure and promotion. Although Petitioner spoke occasionally with her department chairman concerning the advisability of scholarly activity leading to the publication or other dissemination of her work in the academic community, she was never advised of any deficits in the area of "teaching" until after she applied for tenure. In late 1978, when Petitioner was in her fifth year of non-tenured employment at the University of Florida, she was considered for tenure and promotion in accordance with tenure policies of the Respondent and the Board of Regents. In the course of this consideration, three areas of Petitioner's performance were evaluated: service; research and other creative activities; and teaching. Petitioner's rendering of health care services in the context of her clinical duties falls into the area of "service" in connection with her application for tenure. The evidence in this proceeding clearly establishes that Petitioner is an outstanding clinician, and has proven very effective in performing her resonsibilities in the areas of group, individual and family therapy, and follow-up care planning. Petitioner has also been active in establishing a rape counselling program in the Gainesville area, and although she has served on no university-wide committees, it does not appear that she was invited to do so, or that she could have done so absent such an appointment or invitation. With respect to the area of "research and other creative activities," the record establishes that Petitioner has prepared two articles, one of which was accepted for publication but was not, in fact, published due to the untimely demise of the journal in which the article was to have been published. In addition, since evaluation of her tenure application by Respondent, Petitioner has delivered a paper to a meeting of the American Psychiatric Association. Another social worker who applied for and was granted tenure in the Department of Psychiatry contemporaneously with Petitioner's application had published six or seven articles in scholarly journals, an had been active in speaking engagements in her area of research and scholarship. With respect to the "teaching" element of Petitioner's tenure application, as previously noted, no written teaching evaluations existed in Petitioner's personnel file from the time of her employment in 1974 until the time of her tenure application in late 1978. In response to requests from both Petitioner and the Chairman of the Department of Psychiatry, various psychiatrists and social workers who were familiar with Petitioner's teaching, both as students and fellow faculty members, submitted letters which were almost uniformly laudatory of Petitioner's teaching ability. In addition, during December 1978, sixteen faculty evaluation forms were distributed to faculty members in the Department of Psychiatry soliciting their evaluations of Petitioner's teaching ability. Of these sixteen faculty members, only ten attempted to rate Petitioner as a teacher. The evaluation form required the evaluator to assign a number value to Petitioner's teaching ability with "a" indicating outstanding ability; "2", above average ability; "3", average ability; "4", unsatisfactory performance, and "5", totally inadequate performance. These number values were assigned in each of the following seven teaching areas: depth and newness of knowledge; admits lack of knowledge when appropriate; ability to convey information; receptive to new ideas or criticism; genuinely interested in teaching; stimulating teacher; and, in relating to patients, does teacher convey compassion and concern for the individual. In addition, the form provided for some indication of the extent of contact the evaluator had had with Petitioner, the form of that contact, and for discussion of strong and weak points of Petitioner's teaching ability, together with any additional comments that the evaluator might choose to make. The results of this evaluation were that, of the ten people evaluating Petitioner's teaching ability, three gave her an overall rating of "Outstanding"; two evaluated her as "Above Average"; three considered her an "Average" teacher; one thought her to be "unsatisfactory"; and one evaluator felt her to be "Totally Inadequate". Interestingly, only six of the ten persons evaluating Petitioner's teaching ability indicated that they had sixteen or more hours of contact with her as a teacher during the entire five-year period of her employment at the University of Florida. Further, there is no indication in any of the documents admitted into evidence in this proceeding, or in any of the testimony at final hearing whether those evaluating Petitioner's teaching ability did, in fact, have sufficient knowledge in this area upon which to form a competent opinion of her performance. The Chairman of the Department of Psychiatry used the data generated from the "faculty evaluation" forms to compute a mean teaching ability score for Petitioner, which was then, in turn, compared against the "department mean". The "department mean", however, was not a true reflection of the teaching evaluations of the faculty of the Department of Psychiatry, as a whole, but included only those other candidates for tenure and promotion who were being considered at the same time as Petitioner. The record reflects that, in addition to social workers, members of as many as four other disciplines were being considered for tenure and promotion in the Department of Psychiatry at the same time as Petitioner. Consequently, Petitioner was neither being compared against the entire faculty of the Department of Psychiatry, nor against other social workers employed in the Department, either tenured or non-tenured. Petitioner was evaluated below the departmental mean in each of the seven separate areas of evaluation mentioned above, and her overall mean rating of 2.70 was also below the department mean of 1.89. After Petitioner's tenure packet, including teacher evaluations and other back-up data, was prepared, it was submitted to the Tenure committee of the Department of Psychiatry, which voted seven to three, with one abstention in favor of granting tenure to the Petitioner. The Chairman of the Department of Psychiatry then forwarded Petitioner's tenure packet to the Dean of the College of Medicine with his recommendation that she be granted tenure, which, in effect, made the departmental vote eight to three, with one abstention in favor of granting tenure. While not directly relevant to this proceeding, the Departmental vote taken on the promotion of Petitioner from the rank of Instructor to Assistant Professor was eighteen to four, with two abstentions, in favor of promotion. Petitioner's tenure packet was submitted to the Tenure Committee in the College of Medicine, which committee consisted of seven members. Two members of the committee were assigned as the primary and secondary reviewers of the application, one of whom testified at final hearing in this cause that the faculty evaluation forms themselves were not furnished to the committee, and that the committee was not advised that Petitioner's mean scores were compared to a departmental mean consisting of only those other faculty members being considered for tenure at the same time. This particular committee member was under the impression that the department mean against which Petitioner was compared consisted of all members of the faculty in the Department of Psychiatry. The vote of the College of Medicine Tenure Committee was six to one against the granting of tenure, with the only affirmative vote being that of the Chairman of the Psychiatry Department. In his letter advising the Chairman of the Department of Psychiatry of the outcome of the vote before the College Tenure Committee, the Dean of the College of Medicine wrote that: As you are aware, a candidate for promotion or tenure should be highly qualified in at least two or three areas: teaching, research or service. The only area in which Mrs. Vera appears to have strength is the area of service as research is almost non-existent and her teacher evaluations range from average to less than average. As a matter of policy, the University of Florida Personnel Board, in considering grants of tenure, looks for a demonstration of strength in at least two of the three areas of evaluation. Situations have existed in which tenure has been granted upon a showing of competence in the remaining two areas. The Personnel Board, as a matter of course, looks for teaching ability above departmental average in those persons being considered for tenure. In addition, it is customary practice at every level of the tenure granting process not to afford a tenure applicant an opportunity to appear in person before the various tenure committees. Both Petitioner and Respondent have submitted proposed Findings of Fact in the course of this proceeding. To the extent that those Findings of Fact have not been adopted in this Recommended Order, they have been rejected as not having been supported by the evidence, or as having been irrelevant to the issues under consideration herein.
Recommendation Based upon the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that a Final Order be entered by the President of the University of Florida requiring that Petitioner's appointment as a non-tenured social work instructor in the Department of Psychiatry, College of Medicine, University of Florida, be extended for a period of at least one year, or such longer time as may be necessary to properly evaluate Petitioner's teaching performance in accordance with applicable statutes and rules and regulations promulgated by the Board of Regents and the University of Florida. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 20th day of February, 1980. WILLIAM E. WILLIAMS Hearing Officer Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of February, 1980. COPIES FURNISHED: Selig I. Golden, Esquire Post Office Box 1251 Gainesville, Florida 32602 Ashmun Brown, Esquire University Attorney's Office 207 Tigert Hall University of Florida Gainesville, Florida 32611
The Issue Should Respondent's tenure status be removed and he be terminated from employment with Hillsborough Community College because of the matters set out in the Amended Statement of Charges and Petition For Dismissal filed in this matter?
Findings Of Fact At all times pertinent to the matters in issue herein, the Petitioner, Hillsborough Community College, was a public institution of higher education, with four campuses, two extension centers, three environmental centers, and several other operations located in Hillsborough County, Florida. Respondent, Professor Joseph P. Boyle, was a tenured faculty member on the instructional staff located at the Dale Mabry campus. He has been with the College for more than 20 years. The College's Board of Trustees ordinarily meets once a month at the Administrative Center on Davis Island. The meetings are open to the public, are publicized at least a week in advance, and are based upon a written agenda. Frequently, members of the public attend the meetings as do some faculty members, administrative staff and the press. The College President and the College Attorney also attend. At these meeting, the Board generally treats policy matters, expenditures, approval of consultant contracts, and audit reports, and there is also a provision for public comment. It is not at all unusual or inappropriate for Board members to be contacted by students, faculty members or the public about school matters. Joaquin M. Campo, the President and Chairman of a Tampa engineering firm, served as Board President from July, 1990 to July, 1991. He has been contacted by outsiders about matters and when that happens, he tries, as best he can, to follow up on the contact. It is his practice to respond to any personal contact and to any signed letter which, he immediately forwards to the College President for investigation. To the best of his recollection, Respondent had previously called him about something into which he made inquiry and thereafter, Respondent began to communicate with him regularly on a variety of matters. This did not annoy him at all, and in each case, he tried to get the answer to the Respondent's problem. On August 27, 1990, Mr. Campo received a letter from the Respondent complaining about comments purportedly made by President Paloumpis. If true, these allegations would be considered serious. Professor Boyle followed the first letter with phone calls and repeated additional letters, as a result of which, Mr. Campo asked him to come up with some hard evidence in support of his allegations. Campo made this request several times, and no such evidence was ever forthcoming. Finally, Campo asked the College's Auditor, Mr. Watkins, who reports directly to the Board of Trustees, to look into Boyle's allegations and report what he found. Mr. Campo chose the Auditor so there would be no chance of improper influence being asserted by anyone else. At the same time, Mr. Campo also contacted the Respondent and asked him to cooperate with Mr. Watkins. By letter dated September 13, 1990, he reiterated that request in writing. At no time did Professor Boyle indicate he would not cooperate with the Auditor. At the time he brought the Auditor in, Mr. Campo had not formed any opinion as to Boyle's allegations. Sometime later, in February, 1991, Mr. Campo received another letter from Respondent complaining about the mechanics of selection for appointment of the head of a department at the college. When he looked into these allegations, he found them to be untrue and, in fact, that that faculty member ostensibly appointed, Dr. Adams, had not been so appointed and had never applied for the position. Mr. Campo so responded to Mr. Boyle in writing and thereafter received another letter from the Respondent, dated February 22, 1991, which in a disrespectful and berating manner, scolded Mr. Campo for his reply and demanded an apology. Because this letter was incorrect and insulting, Mr. Campo advised Professor Boyle of his feelings. As it appears, however, this faculty member, Dr. Adams, was subsequently appointed Department head. Thereafter, by letter dated March 13, 1991, Mr. Boyle requested Mr. Campo resign as Chairman of the Board of trustees, citing alleged dereliction of duty and referring to nonexistent secret letters. That same day, Mr. Campo wrote to Professor Boyle and again asked him to come forward with proof to support his allegations and set a deadline of March 22, 1991 for him to do so. In writing this letter, Mr. Campo was trying to do his duty as Chairman to either prove or disprove allegations of wrongdoing and put them to rest. He got no response to the letter or any of the proof requested. All during this time, Mr. Watkins also was having his difficulties in dealing with Mr. Boyle regarding the investigation he had been requested to undertake. Immediately after being asked by Mr. Campo to look into Boyle's allegations, Watkins received a call from Mr. Boyle in which Boyle said Mr. Campo had asked him to meet with Watkins and provide the information. Boyle agreed to do so, but after several days, Watkins still had not again heard from Boyle. Though Watkins tried to contact Boyle, he found Boyle had no home phone and was only on campus at certain hours. Mr. Watkins went to the Dale Mabry campus during Boyle's office hours. When he arrived at Boyle's office, he found the door closed but he could hear voices from within. He knocked twice and a voice called out, "Who are you and what do you want?" When Watkins identified himself, Boyle opened the door, finished the phone call he was engaged in, and spoke with him. Boyle said he had not had time to collect the background information but that his letter to Mr. Campo stated the facts. When Mr. Watkins pointed out these were not facts but conclusions, Boyle agreed to get facts and said he would get back with Watkins in one week. Their agreement called for Professor Boyle to come to Watkins office with the information, but one day before the scheduled meeting, Boyle called to postpone it. Nonetheless, he showed up the next day without any independent proof, reasserted his position that his allegations spoke for themselves, and questioned Mr. Watkins' authority to conduct the inquiry. When Mr. Watkins explained his charter, Boyle dropped the subject. Mr. Boyle never did come up with any supporting proof of his allegations even though Mr. Watkins gave him several extensions of time. In fact, Boyle failed to contact Mr. Watkins again and when Watkins tried to reach him and couldn't, he again went to Boyle's office to see him. After Watkins waited for a lengthy time during which Professor Boyle dealt with students, Boyle finally stated he didn't have any time to deal with him. He stated he had been told by an unnamed party not to talk with Watkins, and left. Mr. Watkins reported to Mr. Campo both orally and in writing regarding the results of his efforts. Mr. Campo advised Mr. Watkins not to pressure Boyle too much because they really wanted the information. Finally, on November 6, 1990, Mr. Watkins again wrote to Professor Boyle asking for documentation supporting his allegations. Mr. Boyle neither responded with the documents nor requested more time, and Mr. Watkins has never received any documentation from Boyle in support of his charges. While Boyle cooperated at first, his attitude deteriorated to the point he was arrogant and uncooperative, and considering Watkins was working at the direction of the Chairman, even insubordinate. Finally, on November 19, 1990, Watkins wrote to Mr. Campo outlining the results of his efforts and the problems he encountered dealing with Professor Boyle. Thereafter, he was released from this investigation and has not, to this day, received any supplemental information from Professor Boyle. By letter dated March 27, 1991, Mr. Campo ordered Mr. Boyle to meet with him on April 9, 1991 at 2:00 PM in the College Administrative Office on Davis Island and to bring whatever support he had for the charges he had made. Mr. Campo made it clear this was not an optional meeting, and the Respondent's failure to appear would be considered to be insubordination. Nonetheless, Professor Boyle did not appear for the meeting nor did he either call in advance to seek a postponement or provide a subsequent explanation for his absence. On April 11, 1991, Mr. Campo again wrote to Mr. Boyle, pointing out the failure to appear on April 9 was insubordination, asking for an explanation in writing, and directing him to appear in person at the Administrative Office on Davis Island on April 22, 1991 at 2:00 PM. This letter also advised Boyle that if he could not make it, he was to advise Campo by phone no later than noon on April 22. Boyle neither showed up nor explained. April 9, 19, and 22, 1991 were work days when Professor Boyle could be expected to perform his duties. As Chairman of the College's Board of Trustees, Mr. Campo had the authority to direct any college employee to meet with him. His directions to Boyle to meet with him on those days were, therefore, lawful orders. Mr. Campo was present at the time and place scheduled for the meetings which he directed Professor Boyle to attend. To this day, Boyle has not explained his failure to appear as directed. Campo sought those meetings with Professor Boyle to get the facts surrounding the allegations Boyle had made. They were not designed to create a situation for which disciplinary action to get rid of Professor Boyle could be initiated. As a result of Professor Boyle's failure to appear as directed, Mr. Campo asked President Paloumpis to look into the matter to see if any action was appropriate. As a result, in June, 1991, Dr. Paloumpis recommended to the Board of Trustees that action to remove Boyle for insubordination be initiated. Mr. Campo agreed. At the open Board meeting where this matter was addressed, the Board, pursuant to discussion of the matter which had been published in advance on the regular publicized agenda, unanimously approved the recommendation to dismiss Professor Boyle. The Board meeting was publicized in advance along with the agenda, and Professor Boyle had the opportunity to appear before the Board to defend or explain his actions. He failed to do so. There is no evidence of any attempt to discharge Boyle because of his outspokenness. When Dr. Paloumpis received the copy of Professor Boyle's letter of complaint which Mr. Campo sent to him, he, also, wanted the matter looked into. At no time did he attempt to impede Watkins' investigation or, in fact, to speak with Watkins about it. As an administrator, he has been accused by others before of making bad decisions and of being unfair. He never takes such accusations personally, nor did he act on this allegation. His initiation of disciplinary action against Professor Boyle was taken at Mr. Campo's suggestion because of Boyle's insubordination. He reviewed the investigation and the succeeding failures by Boyle to meet with Mr. Campo and satisfied himself that grounds for discipline existed. Only then did he set the wheels in motion. On April 30, 1991, Dr. Paloumpis wrote to professor Boyle directing him to come to Paloumpis' office at 8:30 AM on May 3, 1991, normal business hours, to provide a doctor's certificate because Professor Boyle had a habit of calling in sick or having someone do it for him. Under the terms of the contract between the College and the union, the College has the right to have the faculty member submit to an independent medical examination under certain conditions. He also directed Boyle to contact his department head, Dr. Adams, by May 3, 1991, to set up the appointment with the doctor. Professor Boyle did not show up at either place on May 3, nor did he contact Dr. Paloumpis or anyone on his staff about it. Thereafter, on May 6, 1991, Dr. Paloumpis wrote to Professor Boyle asking for an explanation of his failure to appear as directed by him and by Mr. Campo. In this letter, he also gave Mr. Boyle an order to contact Ms. Bone, an executive assistant in Dr. Paloumpis' office to set up a time, at Professor Boyle's convenience, to meet with Paloumpis at Paloumpis' office. He also warned Professor Boyle that if he failed to appear, he, Paloumpis would recommend Dr. Boyle's suspension as a disciplinary action. Professor Boyle has never responded to this letter or complied with the directions therein. Dr. Paloumpis thereafter prepared the Petition for Dismissal and Explanation of Rights form and tried to serve them on the professor by regular US mail, by certified mail, and by process server. That copy sent by regular US mail was not returned undelivered, but the copy sent by certified mail was not accepted. The process server was able to effect service of the Petition on Professor Boyle, at his home, at 1:20 PM on June 28, 1991. It must also be noted that some of the letters to Professor Boyle which requested meeting with him were, in addition to being sent by mail, included in the envelope with his individual pay checks. When these checks were cashed, it was clear indication that Professor Boyle had received the meeting notices. None of the letters, all of which were also sent by US mail, were ever returned undelivered except for the copy of the Petition sent by certified mail. In addition to all the above, in the Fall of 1991, Dr. Paloumpis learned that several students had complained about Professor Boyle's behavior. Paloumpis received a call from the Dale Mabry campus that complaints had been received which had been put in writing and referred to the vice president in charge of that campus. When he asked what was going on, the complaints were referred to him. As a result of these complaints, Professor Boyle's supervisors recommended to Dr. Paloumpis that Boyle be placed on administrative leave because the pattern and manner of his relationship with his students indicated it would be better were he out of the classroom. Dr. Paloumpis' primary concern was for the students, many of whom wanted to drop the course they were taking from Professor Boyle. To do so, however, would be, for many of them, a financial and academic harship. Paloumpis wanted to avoid this, and as a result, Professor Boyle was relieved of his teaching duties and an adjunct professor brought in to teach the remainder of the course. This solved the students' problems and the complaints stopped. As a result of this reported aberrant classroom behavior by Professor Boyle, Dr. Paloumpis prepared the additional charges which were incorporated in the Amended Petition to Dismiss which he also submitted to the Board of Trustees. By memo dated September 23, 1991, Dr. Paloumpis notified Professor Boyle he was being placed on administrative leave with pay and that the new charges were being added to the Petition. At the same time, he notified Professor Boyle of his right to attend the Board meeting at which the additional charges were to be discussed. The charges were made an agenda item which was published and distributed. Professor Boyle did not appear at the Board meeting but was represented by counsel, Mr. Merkle. The Board heard the evidence relating to the additional charge and the presentation by Mr. Merkle on behalf of the professor. It nonetheless voted unanimously to add the new charge to the Petition for Dismissal. At no time has Professor Boyle ever given Dr. Paloumpis or any representative of the College any explanation of his allegedly aberrant classroom behavior which prompted the additional charge, save the presentation by Mr. Merkle at the Board meeting.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore, recommended that Professor Joseph P. Boyle be discharged from employment as a tenured faculty member at Hillsborough Community College for gross insubordination. RECOMMENDED this 19th day of March, 1993, in Tallahassee, Florida. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of March, 1993. COPIES FURNISHED: John M. Breckenridge, Jr., Esquire 2502 Rocky Point Road, Suite 225 Tampa, Florida 33607 Professor Joseph P. Boyle P.O. Box 327 Champlain, New York 12919 Robert W. Merkle, Esquire (Courtesy Copy) Merkle & Magri, P.A. 750 West Courtney Campbell Causeway, #1120 Tampa, Florida 33607 Martha K. Covington College Attorney Hillsborough Community College P. O. Box 31127 Tampa, Florida 33631-3127
Findings Of Fact Petitioner, Dr. Erb Fontenot, has been associated with Florida State University (FSU) for over 14 years, after having taught for 14 years in public schools in Louisiana, and two years at the University of West Florida in Pensacola. He originally enrolled at FSU to complete his PhD and simultaneously was hired as an instructor on the faculty of the College of Education. His written appointment to the faculty for the academic year 1975- 1976 was as a non-tenured faculty member at the rank of instructor in the College of Education, Department of College- Wide Instructional Services. The document reflected the special terms or conditions of employment as follows: To teach such courses as are assigned. To conduct research of a publishable quality. To render such other services as the Department, College, or University might assign. The Dean of the College of Education in 1975 was Dr. James L. Gant, who served in such capacity from 1974 to 1983. In 1975, Dean Gant had two associate deans who served with half-time teaching duties and half-time administrative work in his office. Petitioner was also assigned administrative duties half-time as Special Assistant for Academic Affairs and Personnel Relations and the remaining half of his time for instructional duties as assigned. There was also a Director of Planning in the Dean's office who similarly performed administrative duties half-time and teaching duties half-time. During succeeding years, Dean Gant periodically reassigned his staff as the need arose or upon the request of staff members. As a result, re-assignments occurred from time to time which were within the discretion of the Dean. At the time Dean Gant assumed his duties as Dean, the position of Special Assistant for Academic Affairs and Personnel Relations was not a full-time administrative position even though it was so designated in the college's 1972 organizational guide. However, Petitioner testified that during the period preceding Gant becoming Dean of the college, he (Petitioner) was a full- time administrator who taught perhaps one or two courses each semester. His testimony was uncontroverted in this regard and is accepted. Petitioner's contracts after 1976 show appointment Modifier B which is for courtesy faculty status. "Courtesy" faculty is defined in Rule 6C-5.105(1)(i), F.A.C., as "those appointments to a departmental faculty which do not include compensation, may include special faculty privileges such as voting in departmental affairs, and are made in accordance with regular faculty qualifications. . . ." Testimony at the hearing shows that such a status normally involves teaching in a department of a college other than that to which the faculty member is assigned. (Testimony of Petitioner, Gant, Kropp, Edwards, Petitioner's Exhibits 17, 19, Respondent's Exhibits 4-5) At a time undisclosed by the evidence, Petitioner received his doctorate degree and was awarded the academic rank of assistant professor. His employment contract for the 1978- 1979 academic year reflects that he was in a tenure-earning appointment and classified as Director and Assistant Professor under Class Code 9082. The contract reflected special conditions of employment were for him to serve as Special Assistant for Academic Affairs and Personnel Relations. The Instructional and Research Class Code 9082 under the title Director and Assistant professor is described as follows: An academic employee who shall hold the qualifications of the rank of 'assistant professor' and whose major responsibility is the administration of an academic/county research center, institute, or inter- disciplinary function or budgeted entity. This position, being an academic function of the university, is funded by the instructional and research budget and is a faculty class. Under Article VI of the Florida State University Constitution (Rule 6C2-1.04(6), F.A.C.), an assistant professor is considered ineligible for tenure or for re-appointment beyond a seven year maximum. A prerequisite for consideration for tenure is that the faculty member hold the rank of associate professor. (Petitioner's Exhibits la, 15a) Petitioner's contracts for the 1980-1981 and 1981-1982 academic years were basically the same as that for the 1978-1979 academic year. (Petitioner's Composite Exhibit 18) Several years before Petitioner had reached the time when he would be subject to dismissal if tenure had not been obtained, Dean Gant had several discussions with him concerning his status at the university. Petitioner had not been promoted to associate professor and therefore was then ineligible for tenure consideration. Dean Gant pointed out to Petitioner the fact that he needed to conduct the necessary research and teach more in order to be able to meet tenure requirements which could result in recommendations by the faculty and the University for tenure. Petitioner raised questions as to whether or not he could obtain tenure through his performance of administrative duties and Dean Gant indicated that such a result would be unlikely under the normal tenure process because of the necessity for approval by departmental faculty. Eventually, when it became apparent that Petitioner was not going to be promoted, Dean Gant talked with him and decided that a way of keeping him on the faculty was to take him off the tenure-earning track so that he would not be under the "up-or out" rule. (Testimony of Gant) In furtherance of his discussions with Petitioner, Dean Gant thereafter conferred with Dr. Daisy Flory, the University's Dean of Faculties concerning the possibility of retaining Petitioner by placing him in a non-tenured administrative position in order that he could have time to work on his teaching and do research prior to returning to a tenure-earning position. She agreed with this plan and, therefore, by letter of March 24, 1982, Petitioner made a formal request to Dean Gant that his employment status be changed to reflect an administrative and service role with a courtesy rank in the Department of Childhood, Reading, and Special Education in conformity with Article VI of the University constitution. The pertinent provision which is reflected in Rule 6C2-1.04(6)(a)7a, FAC, provides in part as follows: Persons holding an administrative or service role normally hold a courtesy rank in an academic unit and shall not be subject to the rule during such service unless the academic units grant a regular tenure-earning appointment. When the administrative or service function is ended, the person shall receive upon request a tenure-earning appointment in an academic unit. The "rule" referred to in the above-cited provision is the "up-or out" rule relating to non-tenured employees. Dean Gant forwarded Petitioner's letter to Dr. Flory asking that she take appropriate steps to effectuate the change and by memorandum dated April 1, 1982 she indicated that the request had been received and filed in Petitioner's file to indicate his "changed situation." Nevertheless, Petitioner's employment contracts for the 1982-1983 and 1984-1985 academic years reflected that he was still in a tenure-earning appointment. During these years, regardless of the "changed situation", Dean Gant still considered that Petitioner was at the disposal of his academic department head for 50 percent of his time. As a practical matter, Petitioner performed most of his duties in his administrative role and taught only once or twice each term, usually in the late afternoon or evening. (Testimony of Gant, Petitioner, Flory Deposition (Respondent's Exhibit 2), Petitioner's Exhibit 5, 18) Dean Gant retired in December, 1982 and was- succeeded by Dean Bruce W. Tuckman. Dean Tuckman apparently took a different view of Petitioner's situation and considered him to be engaged in a full-time administrative position. This was evidenced by the Dean's memorandum to Dr. Gus Turnbull, University Provost, dated November 2, 1984, whereby the Dean requested that Petitioner receive a direct promotion to the rank of associate professor and tenure in the College of Education. Dean Tuckman pointed out that Petitioner's role was considered unique in comparison to other professors seeking promotion and tenure through the normal process since his heavy administrative assignment had limited his participation in departmental academic activities. Favorable action apparently was not taken on the request since Petitioner remained in the rank of assistant professor. Dean Tuckman's evaluation of Petitioner on May 7, 1985, was "outstanding" and reflected that his primary duties were in administration. In the summer of 1985, Dean Tuckman sought and obtained the approval of Vice-President Turnbull of a salary increase of $6,056 for Petitioner with the stated basis of expansion of his duties to include the office of administration, the business office, coordination of personnel matters, and part of the duties resulting from the loss of an associate dean. (Petitioner's Exhibits 4, 4a, Respondent's Exhibit 1) Dean Tuckman was thereafter assigned to other duties. Petitioner's employment contract for the 1985-1986 academic year was signed on August 7, 1985 by Dean Steve Edwards, Deputy Provost and Dean of Faculties. The contract was similar to those of past years except that it showed that Petitioner was in a non- tenure-earning status and the special conditions of employment were to serve as Director of Administration, Academic Affairs and Personnel Relations. The classification code was 9082 with title of Director and Assistant Professor. (Testimony of Edwards, Petitioner's Exhibit 1) Dr. Robert L. Lathrop was named Interim Dean of the College of Education and assumed those duties on or about September 1, 1985. His previous position had been as Director. for the Center for Studies in Vocational Education, a research organization attached to the College of Education. At the time Dean Lathrop was appointed, the Vice-President of the University, Dr. Turnbull, was engaged in a major strategic planning activity whereby he assigned to all of the college deans the requirement to develop a strategic plan setting major goals for the next five years and securing faculty consensus on those goals. The College of Education was perceived by the administration as being disorganized with the faculty having a lack of confidence in its administration. Accordingly, one of the major roles that Dean Lathrop was charged with by the Vice-President was to restore faculty confidence in the governing structure of the college. After looking into the situation and talking with the individuals who had leadership roles, including the staff and department heads of the college, Dean Lathrop determined that he needed to bring more active faculty representation into the administration of the Dean's office. To this end, he appointed two half-time associate deans from the senior faculty of the college. He examined the functions that Petitioner had been assigned under the prior Dean and his manner of performance. He found that department heads had not received their budget statements for a considerable length of time, that personnel actions had often been delayed and that it was difficult to get decisions in this respect. Dean Lathrop concluded that Petitioner had been assigned too many responsibilities. He also determined that he needed to take over personal control of the distribution of the budget and distribution of faculty assignments in order to exert real leadership in the college. It is important that the Dean be able to move the faculty around where they are most needed and, since there are a limited number of positions, the more utilization he makes of personnel for administration, the less there are for teaching. He therefore determined that all members of the Dean's staff, with the exception of one person who had a commitment from the former Dean, should carry half-time assignments in the Dean's office and half-time assignments in an academic department. (Testimony of Lathrop) Dean Lathrop met with Petitioner in September concerning the latter's long-range career plans, and Petitioner indicated that he desired to continue in academic administration. Dean Lathrop pointed out to him that there is no tenure in an administrative position and that he should give some thought to working toward tenure during the period that the tenure "clock" had stopped running for him and he should utilize this period of time to pursue activities related to obtaining tenure. At this time, Petitioner offered to perform whatever function in the new administration that Dean Lathrop regarded as being appropriate to the needs of the college. Later, Dean Lathrop met with the members of his staff individually, including Petitioner and announced his plans for their assignments. Although Dean Lathrop did not recall that Petitioner voiced any serious objections at that time, he later became aware of a memorandum from Petitioner to the President of the University dated September 24, 1985, in which he protested the reduction and reassignment of some of his former duties and transfer of staff and clerical personnel. Petitioner characterized the reorganization as being retaliatory, punitive, unethical, subversive, and racially motivated. He further requested that an immediate investigation be conducted of the activities and actions taken against him. (Testimony of Lathrop, Petitioner's Exhibit 7) By memorandum of September 25, 1985, Dean Lathrop advised Petitioner of his assignment change as follows: This is in confirmation of my verbal change of your assignment about which I informed you in our conversation of September 18, 1985. Effective that date, I relieved you of responsibilities associated with the Director of Administration portion of your assignment. For the remainder of the academic year I ask that you continue your responsibilities with respect to Affirmative Action, grievances and as ombudsman. This should free up approximately 50% of your time this Fall which may be useful in preparing to assume that proportion of time in your academic department next Spring. Thus, your Spring assignment would be 50% Dean's Office and 50%. Childhood Education. A further memorandum, dated September 27, 1985, made reference to Petitioner's memorandum of September 24 and expanded more specifically on the reassignment of duties with reference to a listing of responsibilities for the Director of Administration and Director of Academic Affairs and Personnel Relations, as contained in the college Guide to Organization, Internal Policies, and Some Procedures. This was a compilation of various policies and duties of positions that had been issued during the time when Dr. Gant was the Dean. However, the description of duties for a particular position was designed to assist personnel of the college in ascertaining the division of assigned responsibilities in the dean's office. They are not position descriptions as contemplated in the career service system because faculty members are not career service employees. Dean Lathrop's memorandum explained that he had distributed the former responsibilities of the Director of Administration portion of Petitioner's former responsibilities for the conduct of the college's business office and word processing centers to himself, department heads, and other staff personnel. These responsibilities had included fiscal management of college funds, personnel actions, and space utilization. The staff position of Director of Academic Affairs and Personnel Relations carried an "ombudsman" role and recommendations to the dean on faculty promotion and tenure, faculty student relations, liaison with university staff offices, affirmative action matters, and various other college administrative functions. These responsibilities were considerably scaled down, as indicated in Dean Lathrop's memorandum. Generally, Petitioner's remaining duties consisted of student matters, affirmative action and minority programs, assisting in the election process for college committees, and monitoring compliance with the Family Educational Rights and Privacy Act and the Administrative Procedure Act. By memorandum dated October 1, 1985, to Dean Lathrop, Petitioner requested that they meet with Dr. Edwards and Dr. Groomes concerning his situation, but there is no evidence that such a meeting took place. (Testimony of Lathrop, Petitioner, Petitioner's Exhibit lb, 8-9, Respondent's Exhibit 6) Petitioner contends that he has always been a member of the Professional Staff of the university and as such has the assurance of annual recommendation for re-appointment in his administrative position. Article VII of the Florida State University constitution, which appears in Rule 6C2-1.04(7), FAC, states pertinently as follows: . . .those persons within a college or school holding academic appointments whose responsibilities do not include teaching, shall be considered members of the Professional Staff. Members of the Professional Staff having appropriate qualifications and responsibilities shall be assigned faculty rank by the President of the University on recommendation of their administrative officers for the purpose of membership in the General Faculty. Members of the Professional Staff shall enjoy the assurance of annual recommendation for reappointment in accordance with policies recommended by the Heads of their respective units and approved by the President of the University and Board of Regents. There are three categories of employees at Florida State University under three pay plans. These are Career Service employees, Administrative and Professional (A&P) employees, and faculty employees. All faculty employees, including those performing substantial administrative duties such as Petitioner, are in the faculty pay plan. Members of the Professional Staff are not in the faculty pay plan, although they hold academic appointments and are assigned faculty rank under Article VII of the university constitution. All members of the Professional Staff are under the A&P pay plan, but all A&P employees are not members of the Professional Staff. A&P employees are traditionally administrative personnel, such as those assigned to the offices of student affairs, business operations, comptroller's officer, admissions, registrars and the like. "Professional Staff" under Article VII of the constitution was a category initiated to cover librarians. These individuals were not members of the faculty and therefore the constitutional provision provided a way to hire professionally trained individuals under conditions that they would find acceptable by the assignment of academic rank. These individuals are not under the faculty pay plan and are not members of the faculty in that sense. Petitioner's status is determined by the Class Code 9082, and he is not a member of the Professional Staff. If he returned to full-time teaching duties, as is usually the case with faculty administrators, he would be under a different class code. (Testimony of Edwards, Parry, Flory Deposition, Respondent's Exhibit 2, Petitioner's Exhibit 2) As a faculty member whose responsibilities included administrative responsibilities involving supervision over other employees by virtue of his designation as a "Director," Petitioner's Class Code 9082 was not covered under the collective bargaining agreement between the state university system of Florida and the United Faculty of Florida. However, University officials and Petitioner acknowledge that the principles embodied in the agreement are ordinarily applied to other faculty personnel, such as Petitioner, unless modified by the Dean of the College. Article 9 of the Collective Bargaining Agreement provides that annual assignments of employees shall not be imposed arbitrarily or unreasonably, and provides for a procedure to resolve assignment disputes. However, these provisions deal with disputes filed prior to the effective date of the assignment. In this case, Petitioner does not dispute the original assignment which was reflected in his 1985 employment contract, but with changes in the assignment that took place after its effective date. (Testimony of Petitioner, Parry, Edwards, Petitioner's Exhibit 3) The past and present University officials who testified at the hearing uniformly agree that a college Dean has the authority to reorganize and re-allocate staff functions in order to accommodate the changes that he feels necessary to efficiently supervise the administration of the college. Each Dean has a different style and, as a former Interim Dean of the College of Education put it: "The Dean can name his team." James Parry, Director of Human Resources, Personne1 Policies and Labor Relations for the Board of Regents, supported the view that a Dean can assign his personnel freely, and that the need for such flexibility is the reason why no formal position descriptions are required for faculty members. Dr. Edwards, Dean of Faculties, testified that a Dean is authorized to assign duties and to change them during the contract period. According to Dr. Edwards, the "special conditions" which are sometimes included in annual employment contracts such as that of Petitioner, are meant to place special emphasis on some part of the functions of the position. They indicate that the administrative part of the faculty members duties will be concentrated in certain areas. However, Deans can assign specific duties from the functions or titles shown in the special conditions. If there was an intent to restrict an employee solely to administrative duties, the special conditions would state "to only serve" in a particular capacity, otherwise, the duties mentioned under the special conditions portion of the contract are subject to reassignment. Also, a faculty member with academic rank must have an assignment that would permit him to perform the duties of that rank. (Testimony of Gant, Kropp, Parry, Edwards, Flory Deposition (Respondent's Exhibit 2)) During the time that Dean Lathrop was serving as Director of the Vocational Education Center in the College of Education, several situations arose that generated employee complaints. These included such matters as the reclassification of the librarian position, and the assignment of duties to a library technical assistant. The latter complaint was later withdrawn, and the reclassification action was also withdrawn after a recommendation to that effect by a university grievance committee. Although a University Equal Opportunity Committee, chaired by Petitioner, had a subcommittee look into the practices of the Education Center to determine if there was any practice of discrimination, the subcommittee found that the main problems in the center were with job classifications and funding of programs and made no findings of any discrimination. Routine personnel action requests of Dean Lathrop concerning the Education Center were reviewed by Petitioner prior to decisions by the Dean. These included matters such as recommendations for salary increases, promotions, establishment and reclassification of positions, and layoff actions. As can be expected, some of Lathrop's requests were approved and some disapproved. Petitioner is of the view that because he recommended disapproval of some of the requests, Lathrop was biased against him and that this resulted in his reassignment of responsibilities in 1985. Dean Lathrop denied any such personal feelings and there is no evidence to establish Petitioner's claims in this regard. In fact, Dean Gant testified that, during his tenure, Lathrop had managed the Center in a very competent manner, protected employee's rights, and never evidenced any discriminatory intent or retaliation against anyone. (Testimony of Petitioner, Lathrop, Gant, Respondent's Exhibits 1la-c, 12-13) Petitioner performed his administrative duties prior to the 1985-1986 school year in a creditable manner. Dean Gant characterized his performance as "excellent" and Dean Tuckman gave him an "outstanding" evaluation during the 1984-1985 school year. (Testimony of Gant, Petitioner's Exhibit 4a, 6) It is agreed by the parties that Petitioner's salary, leave, health and medical or retirement benefits under the 1985- 1986 contract have not been reduced. (Prehearing stipulation)
The Issue Whether Respondent discriminated in its hiring practices against Petitioner because of his race, and whether Respondent retaliated against Petitioner because he filed a charge of discrimination, and a complaint.
Findings Of Fact On or about October 2000, Petitioner filed a Charge of Discrimination with the FCHR. (The Charge of Discrimination was FCHR No. 2101775). Thereafter, on or about May 3, 2001, Petitioner filed an Amended Charge of Discrimination (attached to Petition for Relief filed on July 17, 2002). The essence of the Amended Charge was that he had been discriminated against on the basis of race because whites were employed in positions for which he had applied. Petitioner also alleged retaliation and claimed that after he filed his initial Charge of Discrimination, he was not rehired by Respondent as an adjunct instructor and he was denied compensation. The Commission conducted an investigation and on June 4, 2002, issued a Determination: No Cause. The Commission found that there was "no reasonable cause to believe that an unlawful employment practice has occurred." On the same date, the Commission also issued a Notice of Determination: No Cause, in which it advised Petitioner of his right to request an administrative hearing by filing a Petition for Relief within 35 days of the Notice. Petitioner was also advised that if he failed to request an administrative hearing within 35 days "the administrative claim under the Florida Civil Rights Act of 1997, Chapter 760, will be dismissed pursuant to Section 760.11, Florida Statutes (1992)." Petitioner did not file his petition for relief until July 17, 2002, 43 days after the date of the Notice of Determination. In his Petition for Relief, Petitioner claimed that he had been denied full-time employment by Respondent since 1998, and when complaints were filed, Respondent retaliated against him by not rehiring him as an adjunct instructor and denying him unemployment compensation. Petitioner is an African-American male. He received a bachelor of science in mathematics education from Tuskegee University in 1967; a master's degree in business management from Rollins College in 1976; and, a Doctor of Education degree from the University of Central Florida in 2000. Petitioner worked in private industry in Central Florida during the period 1972-1992. During portions of that time, he also worked as an adjunct instructor at Valencia Community College, Florida Southern, and Phillips College. He was employed full-time as an instructor at Brevard Community College from 1992-1996. From 1996 to 1998 he taught at Evans High School in Orlando where he also served as the assistant football coach. Petitioner also taught mathematics and science classes to fifth to eighth grade students at Madison Middle School for part of the 1998/1999 school year. In 1998, Petitioner began teaching as an adjunct instructor at North Florida Community College (College). The College is located in Madison, Florida. It serves the six counties of Hamilton, Madison, Jefferson, Suwannee, Lafayette, and Taylor. The College's district is, geographically, the largest community college district in Florida. Respondent offers a variety of programs ranging from its college transfer program with an associate of arts (AA) or associate of science (AS) degree to two vocational certificate programs. Total enrollment varies from 3,000 to 4,000, depending on vocational enrollments which are demand-based. The current FTE (full-time equivalency) is just under 800. Classes are taught at the campus in Madison and at public high schools in each of the six counties in the service district. Approximately 72 percent of the population of the district is white and 28 percent is non-white. Enrollment at the College mirrors to a large extent the population of the district, except in the college transfer program, where the African-American enrollment is approximately 20 percent, white enrollment is 75 percent, and other groups, including Hispanics, comprise five percent of the students. The Hispanic population of Respondent's six-county district has increased from 1,699 or 1.92 percent of the population in 1990, to 5,019 or 4.73 percent of the population in 2000. This represents a 195 percent increase. Statewide, Florida's Hispanic population grew by 70 percent during the same period. Search committees are appointed by the president of the College and efforts are made to ensure that a member of Respondent's equity committee and a minority, if at all possible, are assigned to each committee. A search committee was appointed by Respondent for each of the applications at issue in this case. Each search committee was charged with reviewing the applications which met the minimum qualifications for each position and then determining the most qualified individuals to be interviewed. After the interviews, the search committee was to recommend the best qualified individual to be offered the position. Search committees are not told to interview individuals of a particular race or gender, but they are encouraged to give special consideration to minorities. If the top two applicants are equal in terms of qualifications and one is a minority candidate and the other is not, they are told to recommend the hiring of the minority applicant over the non-minority. There are 23 full-time instructors in the AA and AS degree programs at the College. Four of those are math instructors. In 1998, Petitioner applied for a position as a full-time mathematics instructor. There were no vacancies in the mathematics department at that time, nor has there been a vacancy for a full-time mathematics instructor at the College at any time since 1991. In 1998, Respondent advertised for an instructor to teach computer science courses in the Business Department. The courses were designed to develop basic computer operation skills, and focused primarily on Microsoft Office Suite software. At the hearing, Petitioner introduced a copy of a letter which was sent to Mr. Doug Brown, a college administrator, in July 1998. In the letter, Petitioner stated that he was "applying for a position in the business or education disciplines." Petitioner discussed his private sector employment experience and his college-level teaching experience, but did not state whether he had any computer science teaching or work experience. The computer science vacancy was filled by a white female who had a master's degree in business and 18 graduate hours in computer science. She had been an adjunct computer science instructor at the College for two years prior to being hired as a full-time instructor. She also taught computer science courses at Madison High School, and she had her own computer business. In 1999, Respondent advertised for the position of program administrator for the North Florida Workforce Development Board. At the time, Respondent was the administrative entity and fiscal agent for the Workforce Development Board. Petitioner applied for the position. None of the applicants were interviewed and the position was never filled because it appeared that Respondent was going to be replaced as administrative entity and fiscal agent, which, in fact, occurred. In December 1999, Respondent advertised to fill the position of project coordinator for the College Reach Out Program (CROP). The program targets economically and educationally disadvantaged youth enrolled in grades 6-12 in the schools in Respondent's service district, who have the potential to finish college but who are likely, without intervention, to drop out of high school. The goal of the program is to keep the students in high school, get them to graduate, and enroll in college. Requirements for the position of project coordinator included a bachelor of arts degree from a four-year college or university and three years of experience working with alternative education programs, at risk youth, or teaching in a youth program department. Approximately 30 persons, including Petitioner, applied for the position of CROP coordinator. A five-member search committee was appointed to review the applications and select individuals to be interviewed. The members of the search committee included Amelia Mulkey, who at the time was Respondent's Director o f Financial Aid, Purchasing and Reports; Mary Anne Wheeler, Director of Student Support Services; and Clyde Alexander, an African-American who is Respondent's athletic director and equity coordinator. After reviewing the applications, the search committee selected five individuals, including Petitioner and Nancy McClellan, to be interviewed. When the interviews were completed, the search committee chose not to rank the applicants. Instead the members unanimously recommended Nancy McClellan for the position. Nancy McClellan was a white female with a bachelor's degree in psychology and a master's degree in social work. A major factor in the selection committee's decision was her ten years of experience working with at-risk adolescents at DISC Village in Leon County, Florida, where she coordinated a comprehensive vocational services program. Her work at DISC Village included assessment, case management, community networking, career exploration, providing employability skills classes, coordinating with education and training providers, grant work, supervising staff, and counseling with parents. In September 2001, Respondent advertised for a case manager for the College Reach Out Program (CROP) in Lafayette and Suwannee Counties. The qualifications for the position were identified as a bachelor's degree in secondary education, social work, or the social services field, with the provision that working with at-risk youth could substitute for education on a month-by-month basis. Case managers are responsible for implementing the CROP programs in the counties to which they are assigned. They market, recruit, and provide services to students in the counties. They work closely with teachers, guidance counselors, students, and parents to enroll the students in the program and to ensure that the students remain in school and graduate. The case managers work with the students on a one-to-one basis. Experience has shown that a social work case management background is an important asset in a CROP case manager in Respondent's district. Students recruited for CROP have a multitude of family issues in their family lives which impact on their ability to remain in school. These include poverty, abuse, neglect, divorce, mental health, and disability issues, all of which social workers are taught to identify, assess, and address. Case managers also educate parents of students regarding available financial aid and college preparation courses which their children should be taking. Eight people, including Petitioner, applied for the position. Two individuals, Lynn Waller and Cheryl Chandler, were interviewed. Lynn Waller was selected for the position. She has a bachelor's degree in social psychology. At the time she was selected, she had been employed as a children's case manager at Apalachee Center for Human Services, working with students in the Madison County School System. She was responsible for recruiting students, working with them, their parents, teachers, and guidance counselors to assess needs, perform psychological assessments, and coordinate same. In his application, Petitioner stated that he had been employed as the CROP Coordinator by Respondent and by Brevard Community College. In fact, Petitioner had never been employed as the CROP Coordinator by Respondent or by Brevard Community College. Petitioner had been employed as one of four part- time facilitators by Respondent from January through June 2000. His duties were to recruit students, organize them into groups, meet with the groups two days per week and schedule one Saturday field trip per month. Nancy McClellan elected not to interview Petitioner for the case manager position, based upon her experience with Dr. Brown as a CROP field facilitator in 2000. When Nancy McClellan assumed her role as CROP Coordinator, Petitioner had not recruited any students from Suwannee County. Eventually, he recruited a total of eight students for CROP. By contrast, in April 2000, Lafayette County had 23 students, Taylor County had 15, and Madison County had 35 students. While Petitioner was case facilitator for Suwannee County, Nancy McClellan received complaints from Suwannee County regarding Petitioner's failure to bring application forms to the County's schools, to pick them up when they had been filled out, and to attend scheduled meetings with students. Petitioner also failed to take the eight students who enrolled in the program on any field trips. By contrast, the other field facilitators were taking the students on regular field trips which was an important part of motivating students to stay in school. In June 2001, Respondent advertised for two positions: learning resource coordinator and transfer advisor. Both were grant-funded positions. The learning resource coordinator is the manager of the tutoring lab for developmental students. These are students who do not have the placement test scores to begin college level work. In the lab they receive assistance in developing their skills in mathematics and English. The learning resource coordinator supervises the transfer advisor, who works with students in developing skills in English, and the retention advisor, who works in developing students' mathematics skills. The learning resource coordinator also supervises and trains tutors, peer mentors, and does some individual tutoring. In addition to the requirement for a four-year degree, the advertisement for the position stated that language proficiency in Spanish was preferred. The preference for Spanish proficiency was based upon the growing Hispanic population on Respondent's campus and the need for a staff person who could tutor the students in their own language, as well as to speak with the families who often accompany them to campus. Experience had shown that Hispanic students were better able to grasp concepts, as in mathematics, when they received tutoring in their native language. There were 18 applicants for the position of learning resource coordinator, among them Petitioner. Petitioner was not selected to be interviewed by the search committee because he did not have proficiency in Spanish. The three individuals who were chosen to be interviewed were proficient in Spanish: two were native Spanish speakers and one had a degree in Spanish. Maria Elizabeth Gonzalez was selected to fill the position. She was a native of Colombia and a native Spanish speaker. She identified herself on her application as Hispanic. At the time she was selected, she had been working for the previous three years as a tutor and as a lab assistant. The transfer advisor position is a grant-funded advisor position in the tutoring lab for developmental students. The transfer advisor works with developmental students in English; the retention advisor works with those students in mathematics. The advertisement for the transfer advisor listed as one of the qualifications a bachelor's degree with an emphasis in English. There were 20 applicants for the Transfer Advisor position. Petitioner was one of the applicants. Four individuals were chosen by the selection committee to be interviewed; all had an undergraduate degree with an emphasis in English. Petitioner was not chosen to be interviewed because his degree did not have an emphasis in English. Carmen Renee Perez was selected to fill the position. She had a bachelor's degree in English and two years of graduate work in English. She had also taught English as a second language. On her application she identified herself as Hispanic/Cuban/Caucasian. In March 2000, Respondent advertised to fill the position of instructor of business and economics. The advertisement stated that the duties of the position would include teaching courses in business, management, accounting, finance, business law, and economics. The minimum requirements included an MBA from an accredited institution or a master's degree with a minimum of 18 semester hours of subject specific graduate course work. There were between 20 and 30 applicants for the position. The search committee chose to interview five of the applicants. Among them were Petitioner; Ellen Stevens, a white female; and Scott Tori, a white male. Following the interviews, the search committee concluded that Dr. Brown had "great math credentials," but his business and economics credentials "were considerably less" than some of the other applicants. The committee concluded that both Ellen Stevens and Scott Tori were better qualified than Petitioner for the position. Ellen Stevens had a masters in business administration, and Scott Tori had a doctorate in economics. Scott Tori was offered the position and he accepted. In addition to his Ph.D., he had a master's degree in economics, and a bachelor's degree in business administration, with an emphasis in finance. At the time he was hired, Tori was an assistant professor of economics and finance at Thomas University. In the late winter of 2002, Respondent advertised to fill a vacancy caused by the retirement of the chemistry and physics instructor. The advertisement stated that the successful candidate would teach chemistry courses through the sophomore level, a year-long organic chemistry sequence, an algebra and calculus-based physics course sequence, and physical science courses, as needed. Petitioner submitted a letter application to Respondent dated March 2, 2002, for a "mathematics/physics/science instructor" position. This was not the title of the open position. In his letter, Petitioner identified himself as a "professor of mathematics." Petitioner was considered for the position but not selected. Terrence M. Zimmerman was determined by the search committee to be the best qualified to fill the position. He had a bachelor's degree in chemistry cum laude, a master's degree in science education, and all but a dissertation for a doctorate in chemistry. He had been an adjunct instructor in chemistry at Tallahassee Community College, an adjunct in chemistry and environmental science at Santa Fe Community College and, at the time he was hired, he was teaching chemistry and environmental science for Respondent as an adjunct. From 1988 until the time he was hired, he also taught chemistry, environmental science, and general science at Taylor County High School in Perry, Florida. Respondent presented credible evidence for each of the positions for which Petitioner applied establishing a non- discriminatory reason for Respondent's decision to hire someone other than Petitioner. In 1998, Petitioner began teaching mathematics courses for Respondent as an adjunct instructor (Adjunct). Adjunct instructors (Adjuncts) are part-time faculty members who are hired by Respondent on a semester-by-semester basis to teach specific classes in subjects in which they are qualified to teach. Adjuncts teach classes at various locations throughout Respondent's six-county district. They are employed on an as-needed basis and execute a new contract for each semester they are hired. Each semester, Respondent publishes a class schedule for the following semester. If Respondent has confirmed that a particular adjunct is going to be teaching a particular class, the adjunct's name will appear on the schedule. If an adjunct has not been confirmed to teach a particular class, the designation of the instructor for that class will appear as "staff." Petitioner was identified by name on the class schedule for one class each in the Spring and Fall of 1999, two classes in the Spring of 2000, and one class in the Fall of 2000. He taught classes in which the name of the instructor appeared on the class schedules as "staff" as follows: one class in the Fall of 1998, two classes in the Summer of 2000, and two classes in the Fall of 2000. The department chair has the discretion to determine which individuals will be hired to teach as adjuncts. Generally, if there is an adjunct who is local, competent, and willing, he or she will be rehired. There is no prescribed procedure for contacting adjuncts. Sometimes the adjuncts contact the department chair; sometimes the department chair contacts the adjuncts. In the Fall semester of 2000, David Proctor, a history professor, was department chair for Respondent's entire AA program. In addition to teaching three classes, one of which was in Hamilton County, he was responsible for scheduling full-time faculty instructors and 34 adjuncts to teach courses in the AA program. He was also responsible for preparing budgets for each department, evaluating faculty, and preparing class schedules. David Proctor intended that Petitioner would teach some of the introductory and intermediate algebra and developmental arithmetic classes during the 2001 Spring Semester. He did not hear from Petitioner in the Fall of 2000 regarding Petitioner's interest in teaching for the 2001 Spring Semester while he was preparing the schedule for the semester; therefore, he used the term "staff" in place of the instructor's name for four classes, intending that Petitioner would teach some of them. In October 2000, after the schedule for the Spring 2001 semester was published, Petitioner approached Proctor on the sidewalk outside the general classroom building on Respondent's campus and asked why his name was not in the schedule. Proctor assured Petitioner that he had every intention of having Petitioner teach during the Spring semester and suggested that they meet and decide what classes Petitioner would teach. Proctor was subsequently unable to meet with Petitioner as scheduled, so he left a note for Petitioner in which he highlighted classes on the schedule and asked Petitioner to tell him which two classes he would like to teach. This occurred in late October or early November. In December 2000, Proctor saw Petitioner outside Proctor's office in the adjunct mailbox area on campus and remembered that he had not heard from Petitioner regarding Petitioner's choice of classes to teach during the Spring semester. Proctor approached Petitioner and suggested they look at the schedule together and identify the classes Petitioner wanted to teach. Petitioner informed Proctor that he was looking elsewhere for employment and he would not be teaching for Respondent. Proctor was surprised, but wished Petitioner well and offered to write letters of recommendation for him. When Petitioner informed Proctor that he did not intend to teach for Respondent, Proctor asked a Hispanic adjunct instructor, Ephraim Bonilla, to pick up these additional courses. The only subsequent contact Petitioner made with Respondent regarding teaching again as an adjunct was a single telephone call at an unspecified date to the new mathematics department chairman, Mr. Harris, during which Petitioner inquired if there were any courses available. Harris told him there were none. Petitioner asked another individual to call with the same question. The individual Petitioner asked to call reported to Petitioner that he had met with the same response. When he prepared the schedule for the Summer of 2001, Proctor assumed that Petitioner was no longer interested in teaching for Respondent, and when he did not hear from him, he did not put his name in the schedule. When Proctor prepared the schedule for the 2001 Spring semester he was unaware that Petitioner had filed a charge of discrimination with the Commission. He was aware of it by the time he prepared the schedule for the Summer of 2001, but that knowledge played no role in his decision not to list Petitioner by name as an adjunct instructor when he prepared the class schedule for the Summer of 2001. Petitioner filed a claim for unemployment compensation benefits effective December 17, 2001, because he was not employed by the College as an adjunct instructor during the 2001 Spring semester. When Respondent received a copy of Petitioner's claim for unemployment compensation, Respondent's Director of Human Resources, Bill Hunter, spoke with David Proctor and learned from him that Petitioner had rejected the opportunity to teach during the 2001 Spring Semester. Bill Hunter provided this information on Respondent's copy of the claim and returned it to the Agency for Workforce Innovation. Petitioner's claim for unemployment compensation was subsequently rejected by state officials and he appealed. Following a telephone hearing during which David Proctor and Petitioner testified, the appeals referee concluded that Petitioner had refused Respondent's offer of an adjunct teaching position for the 2001 Spring Semester and, therefore, was properly barred from receiving unemployment compensation benefits. Petitioner subsequently sought review by the Unemployment Appeals Commission, which affirmed the decision of the appeals referee. In August 2000, Petitioner, and several other college employees, filed a complaint against Respondent with the U.S. Department of Education, Office for Civil Rights (OCR), alleging that Respondent was discriminating against students on the basis of race with regard to recruitment and financial aid. The complaint also alleged that Respondent was discriminating on the basis of race in its hiring practices. In a letter dated September 13, 2000, OCR notified Respondent's former president, Dr. Beverly Grissom, of the Complaint. In an attachment to the letter, OCR advised Dr. Grissom that "OCR does not reveal the name or other identifying information about an individual unless it is necessary for the completion of an investigation or for enforcement activities against an institution that violates the laws, or unless such information is required to be disclosed under the FOIA or the Privacy Act." OCR subsequently determined that there was insufficient evidence to support the student financial aid and recruitment allegations. OCR also determined that there was no statistically significant difference between the number of African-American administrators and faculty members actually employed and the expected employment rate based on the relevant labor market. OCR, therefore, concluded that it lacked jurisdiction to further investigate the matter. Finally, OCR referred the individual employment allegations in the complaint to the U. S. Equal Employment Opportunity Commission because it did not have jurisdiction over such claims. Consistent with its September 13, 2000, letter to Dr. Grissom, OCR did not identify the individual complainants, and Respondent was not otherwise aware of this until the hearing in this case that Petitioner had been one of the complainants. Respondent's decisions with regard to filling the vacancies for which Petitioner applied were not based on race, nor were they based on any retaliatory motive. Respondent's decision regarding the absence of Dr. Brown's name from the Spring 2001 class schedule was not based upon a retaliatory motive, nor was there a retaliatory motive involved in informing the unemployment compensation office that Petitioner had refused the offer of a position as an adjunct instructor for the 2001 Spring Semester.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Florida Commission on Human Relations enter its final order dismissing the case. DONE AND ENTERED this 12th day of December, 2002, in Tallahassee, Leon County, Florida. __________________________________ STEPHEN F. DEAN 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 12th day of December, 2002.
