The Issue Whether or not the School Board of Madison County, Florida may terminate Respondent as one convicted of a crime of mortal turpitude in 1988 or 1989:, pursuant to Section 231.36(4)(c) F.S. [The Petition for Discharge also alleges that a "pattern" of issuing worthless checks over a period of years has been engaged in by Respondent but the "prayer" or charging portion of the Petition is silent as to whether the Petitioner intends this allegation to constitute a specific, separate charge.] Whether or not the School Board of Madison County, Florida may, pursuant to Section 231.44 F.S., terminate Respondent for absence without leave during the period he was incarcerated for passing worthless bank checks.
Findings Of Fact Petitioner, Gene Stokes, is the duly elected Superintendent of Schools of Madison County, Florida. Respondent, Doctor Randall Choice, III, is a member of the instructional staff of the district School Board of Madison County, Florida, employed by the Board under a continuing contract entered into on May 7, 1981. The Respondent was charged in an information filed by the State Attorney of the Third Judicial Circuit on June 27, 1988 with passing a worthless check, the payee being the Madison Inn, drawn upon The North Florida Education Credit Union, Tallahassee, Florida, in the sum of $106.00. There were not sufficient funds in the account to cover the payment of this check, and it was dishonored when presented to The North Florida Education Credit Union for payment. The Respondent was charged in an information filed by the state attorney of the Third Judicial Circuit on September 12, 1988 with passing a worthless check, the payee being Perry Coca Cola, drawn upon The North Florida Education Credit Union, Tallahassee, Florida, in the sum of $61.60. There were not sufficient funds in the account of the Respondent to cover the payment of this check, and it was dishonored when presented to The North Florida Education Credit Union for payment. The check given to the Madison Inn was for lodging and the check to Perry Coca Cola was for products which the Respondent had received. Neither transaction had anything to do with Respondent's professional activities as a school teacher. The Respondent appeared before the Honorable Wetzel Blair, County Judge of Madison County, Florida, on November 2, 1988 and entered a plea of "guilty" to the two informations noted above. The court at that time gave the Respondent the opportunity to make restitution on the two checks and to pay court costs of $46.00 within 30 days. If the Respondent made the restitution and paid the court costs within the prescribed time, the court agreed to withhold adjudication. The Respondent executed the offer of a plea of "guilty", but nonetheless, the court set the matter for trial on December 2, 1988 upon a plea of "not guilty." This "Order Setting Trial" was signed by the judge on November 2, 1988, and stated: Order setting trial date upon the above and foregoing plea of not guilty, trial of this case is set for non-jury trial, on `Friday, December 2, 1988 at 9:00 a.m. [Tr-51-72]. The Respondent did not pay the restitution or court costs within the 30-day period as directed by the Court, and, accordingly, the Respondent was ordered to appear before the Court on January 4, 1989. At that time, the court entered another order reciting that the Respondent had entered a plea of "guilty" on November 2, 1988 and had been directed to pay restitution for the checks in the cases within 30 days. The latter order further recited the fact that the Respondent had paid the restitution, but not within the stipulated time, and that Respondent was therefore sentenced to 30 days in the Madison County Jail. Upon the testimony of Madison County Judge Wetzel Blair, it is found that as of the date of formal administrative hearing, September 20, 1989, Respondent had not been adjudicated guilty of the crime of passing a worthless bank check, even though he was incarcerated in the Madison County Jail from January 4, 1989 until about 4:00 p.m. on January 23, 1989. (TR- 78) On January 4, 1989, the Respondent teacher immediately notified his principal, Mrs. Colleen Campbell, by telephone that he was in jail and that he needed to be granted leave for the period he would be incarcerated, predicted at 30 days. She informed Respondent that he had six days of accrued leave due him and agreed to sign she form requesting/approving that period of leave. She also informed Superintendent Stokes that Respondent was in jail, but she provided no written request for leave for Respondent beyond tee six days to which he was entitled. The superintendent did not know of Respondent's oral request for additional leave until Respondent was released from jail. The principal and superintendent have the authority to approve personal leave up to a teacher's accrued limit, but if insufficient personal leave time has been accumulated, the school board must approve the overage. It is unclear from the record whether preprinted forms are provided for this purpose, but apparently such requests must be made in writing. It is also unclear whether such requests are always submitted directly to the school board or if principals and the superintendent act as conduits for such requests to the school board. However, such written leave requests are usually taken up at each monthly school board meeting, which is often "after the fact" of the requesting teacher's physical absence. Sometimes, the applicant appears at the school board meeting in person. Respondent was released from jail or January 23, 1989 at 4:00 p.m.. On January 24, 1989, the Respondent reported personally to the superintendent, reported his release from jail, and sought to determine his leave status, At that time, the superintendent informed the Respondent that the superintendent was suspending the Respondent with pay until the next school board meeting. Also, the superintendent then informed the Respondent that the superintendent was reporting Respondent's conduct to the Education Practices Commission. The superintendent did then specifically inform the Respondent that he had been absent without leave, as it was presumed the Respondent had been incarcerated for passing worthless bank checks, and that was the thrust of their conversation. At all times during his incarceration of 19 days, the Respondent believed that he had taken the necessary steps to obtain authorized leave, and he assumed, without any affirmative action by the principal, superintendent, or school board that he had been approved for leave with pay up to his accrued six days and for leave without pay for the remainder of the incarceration period. Respondent was incarcerated January 5-23, 1989, inclusive. Resort to a calendar reveals that only 12 of Respondent's 19-day incarceration were week days or work days (One was Martin Luther King's Birthday Holiday.) Respondent was, in fact, approved for his six accrued leave days. Therefore, the balance that Respondent was actually absent without leave amounted to only six days. Neither Superintendent Stokes nor the school board, as a collegiate body, approved Respondent's oral request for leave without pay during the six days in question. Indeed, the school board did not convene until February, when, at the superintendent's request, it altered his suspension of Respondent with pay to a suspension without play. Respondent did not file any after-the-fact written request for leave without pay and present it to the school board when it met in February 1989 to consider the suspension request, although it may be inferred that the school board's suspension of Respondent had the retroactive effect of denying his oral leave request. The citizens of Madison County believe that the passing of a worthless check is morally wrong. The incarceration of the Respondent was not reported in any of the newspapers in the circulation area. There is evidence in the record that Respondent's absence created administrative problems for the superintendent and school board and interfered with the orderly education of students, although most of this disorder relates to the period after the Respondent's suspension, not during his short incarceration period.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that: The school Board of Madison County enter a Final Order finding that Respondent has not violated Section 231.36(4)(c) F.S., in that he has not been convicted of a crime of moral turpitude, and that Respondent has violated Section 231.44 F.S., by being willfully absent from duty without leave, and suspending him without pay from the first day of his absence without leave until the conclusion of the current school year. DONE and ENTERED this 2nd day of January 1990 at Tallahassee, Florida. ELLA JANE DAVIS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearing this 2nd day of January, 1990. APPENDIX TO RECOMMENDED ORDER CASE NO. 89-1445 The following constitute specific rulings pursuant to Section 120.59(2) F.S. upon the parties' respective proposed findings of fact (PFOF): Petitioner's PFOF: 1, 2, 6 and 7 are accepted as modified to more closely conform to the record evidence as a whole and to eliminate subordinate and/or unnecessary-material. is rejected as a conclusion of law, not a finding of fact. Further, this has not been established as set forth in FOF 17- 19. is rejected as mostly legal argument. Otherwise the record differs as set out in FOF 6-10. is rejected as a conclusion of law, not a finding of fact. Further, this has not been established as set forth in FOF 6-10 and COL 4. 8 is rejected as a conclusion of law, not a finding of fact. Respondent's PFOF: 1-16 and 18-24 are accepted as modified to more closely conform to the record evidence as a whole and to eliminate subordinate, unnecessary, or cumulative material. 17 is rejected because it is contrary to the record as stated. COPIES FURNISHED: Edwin B. Browning, Jr., Esquire Post Office Drawer 652 Madison, Florida 32340 John R. Weed, P.A. 605 South Jefferson Street Perry, Florida 32347 Gene Stokes, Superintendent Madison County Schools 213 North Duval Madison, Florida 32340
The Issue The basic issue in this case is whether the employer, School Board of Alachua County, committed an unlawful employment practice within the meaning of Section 760.10(1)(a), Florida Statutes, by discharging or otherwise discriminating against Ms. Bates on the basis of her handicap. At the commencement of the hearing the Petitioner moved for a judgment on the pleadings or a determination that the facts were not in dispute on the basis of the respondent having failed to file an answer in accordance with Rule 22T- 9.008(5)(a), Florida Administrative Code. The Hearing Officer reserved ruling on the motion and provided the parties an opportunity to present their evidence. Both parties presented the testimony of witnesses and both parties offered exhibits. On March 17, 1988, a transcript of the hearing was filed and on March 28, 1988, both parties filed proposed recommended orders containing proposed findings of fact and conclusions of law. Careful consideration has been given to the parties' post-hearing submissions during the formulation of this Recommended Order. Specific rulings on all proposed findings of fact are contained in the Appendix which is attached to and incorporated into this Recommended Order.
Findings Of Fact Based on the stipulations of the parties, on the testimony of the witnesses, and on the exhibits received in evidence, I make the following findings of fact: The Petitioner, Ann Bates, began employment with the Respondent, School Board of Alachua County, on August 15, 1983, as a classroom aide assigned to Stephen Foster Elementary School. In August of 1985, she was transferred to the A. Quinn Jones Center and assigned to the classroom of a teacher named Sue Clarey. The Principal at A. Quinn Jones Center had initially contacted the Petitioner and asked her to work at his school. The Petitioner continued to be employed by the Respondent until March 14, 1986. The Petitioner's last job title was Paraprofessional II. On February 28, 1986, the Petitioner saw Dr. W. Alvin McElveen and was given a definite diagnosis of multiple sclerosis. This diagnosis was confirmed by Dr. Richard Cunningham in early March, 1986. Petitioner has been a patient of Dr. Richard Cunningham for approximately four and a half years. In March of 1986, Dr. Richard Cunningham did not place any restrictions on Petitioner's employment. Petitioner's duties as a Paraprofessional II at A. Quinn Jones included feeding and tutoring students, as well as assisting the teacher in general clerical and administrative tasks. At all times the Petitioner was able to satisfactorily complete the job duties of a Paraprofessional II. On March 3, 1986, the Petitioner notified Mr. Jeff Jones, the Principal at A. Quinn Jones Center, that she had been diagnosed as having multiple sclerosis. In March of 1986, the Petitioner took six days off from work on sick leave (March 4, 5, 6, 7, 10 and 11) and returned to work on the morning of Wednesday, March 12, 1986. On March 12, 1986, the school secretary, Ms. Dorothy Emo, placed a handwritten note in the Petitioner's school mailbox, which stated, in substance, "Please see Mr. Jones at your convenience." It was the common practice of the Principal to speak informally with any employee who was returning from more than a day or two of sick leave to ascertain how the employee was doing and to make sure that the employee felt well enough to return to work. On the morning of Wednesday, March 12, 1986, the Petitioner left the classroom, informing the teacher that she was going to see Mr. Jones, and went to the front office. She met with Mr. Jones at about 10:00 a.m. In the Principal's office, the Petitioner expressed her frustration with her medical condition and stated that it was her desire to resign her employment. In response to the Petitioner's expressed desire to resign, Mr. Jones asked the school secretary to bring in a "resignation form," which she did. It was a new form, with which the Principal was not familiar. The Petitioner and Mr. Jones then discussed her leaving employment and the effect it would have on her ability to collect unemployment compensation. Both the Petitioner and Mr. Jones believed that a voluntary resignation would preclude her from being able to receive unemployment compensation. This belief, as it turned out, was erroneous. The Respondent School District had recently revised its separation form to include all three types of separations (voluntary resignation, involuntary termination, and retirement) on one form. Previously, resignation and terminations were processed on separate, different forms. The Principal, Mr. Jones, had never used this particular separation form. Further, the Principal had never used any separation form which indicated that an employee was being involuntarily terminated. He was also unsure what was meant by the term "involuntary termination." The Petitioner and Mr. Jones believed, albeit erroneously, that for the purpose of permitting the Petitioner to separate from employment and also collect unemployment compensation, the "involuntary termination" selection was the appropriate choice. This was by their mutual agreement. Mr. Jones had the form prepared in that manner and then he and the Petitioner signed the form. Mr. Jones gave a copy of the signed form to the Petitioner (which was contrary to the normal procedure) and then forwarded the original of the form to the district office for processing. Mr. Jones also called Will Griffin, the district supervisor of personnel, informed him of Ms. Bates' resignation, and told him that the form was en route. The above-mentioned form was received by Mr. Griffin around noon on March 12, 1986. Upon reviewing the form, he realized that it had been filled out incorrectly and he immediately so advised Mr. Jones by telephone and told Mr. Jones that the Petitioner would have to complete the proper section of the form. The Respondent's School District's procedures are that "involuntary termination" is used for only three types of separation: (a) dismissal of an employee, (b) job abandonment by an employee, or (c) deletion of a position. A school principal does not have the authority to involuntarily terminate an employee or to fill out a form to that effect. The "involuntary termination" form was, therefore, a nullity and of no effect. That form was not processed by the district office staff and was never acted on by the School Board. Principal Jones told his school secretary of the error on the form and asked her to prepare a corrected form. The corrected form indicated that Petitioner was resigning and was not being involuntarily terminated. The corrected form was signed by the Petitioner and the Principal on March 14, 1986, and it was then processed by the district office. At its regularly scheduled meeting on April 15, 1986, the Respondent School Board acted on the Petitioner's resignation and accepted it in a routine manner. At the time the Petitioner signed the second form on March 14, 1986, she did not indicate to the Principal in any way that she had changed her mind about wanting to resign. If the Petitioner had objected and had not signed the resignation form, she would have remained employed by the Respondent. At any time prior to the School Board's formal approval of a resignation, an employee may withdraw a resignation. At no time prior to the School Board's action on April 15, 1986, did the Petitioner withdraw her resignation or notify Mr. Jones or any other representative of the School Board of any change of mind regarding her resignation. At the time of the Petitioner's resignation, no steps had been taken by Principal Jones, or by any other representative of the School District, to dismiss the Petitioner from her employment. At that time the possibility of dismissing the Petitioner had not even been discussed. The Petitioner applied for and was awarded unemployment compensation on the basis that she had resigned her employment for health reasons. It is the policy and practice of the Respondent to provide all employees with a written notice of deficiencies on a job performance warning record before any dismissal action is begun. It is also the Respondent's policy and practice that prior to initiation of dismissal proceedings, an employee's immediate supervisor takes steps to try to resolve any problem before referring the matter to the district supervisor. Employees are normally suspended with pay pending an investigation of the basis for proposed dismissal, and actual dismissal is only carried out by the School Board after the employee has been given an opportunity for a hearing. None of these things took place with regard to the Petitioner, because the School Board was not trying to and did not dismiss her. The Respondent has a policy of providing for grievances by its employees who believe they have been treated unfairly. The Petitioner did not file a grievance with the School Board.
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
The Issue The issue presented is whether Petitioner should dismiss Respondent from her employment as a bus driver for an eight-day absence from work that was allegedly unauthorized.
Findings Of Fact Petitioner employed Respondent as a substitute bus driver on November 18, 2002. From February 10, 2003, through the date of the hearing, Petitioner employed Respondent as a bus driver. A bus driver is an educational support employee. Respondent was absent from work for eight days from February 2 through 11, 2005. The absence was not authorized. The unauthorized absence from February 2 through 4, 2005, comprised three days of unauthorized absence within one pay period. The unauthorized absence from February 7 through 11, 2005, comprised five days of unauthorized absence within one pay period. The eight-day unauthorized absence occurred during the regular school session. Respondent's supervisor scheduled a substitute bus driver to drive Respondent's assigned bus route. Respondent was absent from work for a vacation cruise in Chile. The unauthorized absence was not needed for medical or family reasons or for some other emergency. The terms of Respondent's employment are prescribed in the Collective Bargaining Agreement (CBA) between Petitioner and the Service Employee's International Union (SEIU). The terms of employment are further explained in a document identified in the record as the Bus Driver Handbook. Respondent had actual knowledge that she was entitled to only four personal days off from work with prior approval from Petitioner. Sometime in August or September 2004, an SEIU representative advised Respondent, in response to her inquiry, that the CBA authorized a maximum of four personal days off upon approval of Petitioner. Respondent did not disclose that she intended to be absent from work for a vacation while school was in session. On January 3, 2005, Respondent asked the dispatcher to approve eight personal days off for a vacation. The dispatcher explained that his authority to approve or disapprove leave requests was limited to requests for up to four personal days. Only the compound supervisor had authority to approve a request for authorized personal days in excess of four days. The compound supervisor denied Respondent's request before Respondent left for her vacation, and Respondent had actual notice of the denial. The denial was based in part on the ground that Respondent had no contractually authorized personal days in excess of four days during the regular school session. Even if she were to have authorized personal days in excess of four, the compound supervisor needed all of his bus drivers because school was in session. There was a shortage of bus drivers. February was a busy period in the school year. It was imperative that students have transportation to their schools. Absences in excess of authorized personal days must be requested on a form entitled Request for Leave of Absence, identified in the record as PCS Form 3-137. Respondent never requested a leave of absence on PCS Form 3-137. Rather, Respondent utilized the form authorized for requesting up to four personal days for the purpose of requesting a leave of absence of eight days. A request for a leave of absence on Form 3-137 would have been submitted to the director of transportation for Petitioner. The director never received such a request. Several aggravating circumstances are evidenced in the record. Respondent did not take the unauthorized absence for medical or family reasons or for some other emergency. Respondent took the unauthorized absence for her own leisure. Bus drivers, including Respondent, are nine-month employees. Respondent had other opportunities during the school year for vacations, including summer, a week at Thanksgiving, two weeks during Christmas, and a week during spring break. When school is in session, Respondent had no contractual right to more than four paid personal days. Respondent took the unauthorized absence with knowledge that her action would adversely affect her employer during a busy time of the school year. Respondent knew that the unauthorized absence would result in disciplinary action. Prior to her vacation, Respondent's supervisor suggested Respondent may want to remove her personal items from her bus before leaving for her vacation because she probably would face disciplinary action when she returned. Petitioner has imposed previous discipline against Respondent. Petitioner issued a letter of reprimand to Respondent for segregating black and white students on her bus.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order finding Respondent guilty of committing the alleged violation and dismissing Respondent from her employment. DONE AND ENTERED this 3rd day of August, 2006, in Tallahassee, Leon County, Florida. S DANIEL MANRY 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 3rd day of August, 2006. COPIES FURNISHED: Timberly S. McKenzie 446 Fifth Street, South Safety Harbor, Florida 34695 Laurie A. Dart, Esquire Pinellas County School Board 301 Fourth Street, Southwest Post Office Box 2942 Largo, Florida 33779-2942 Timberly McKenzie 125 Rhonda Drive Clayton, Georgia 30525 Dr. Clayton M. Wilcox, Superintendent Pinellas County School Board Post Office Box 2942 Largo, Florida 33779-2942 Daniel J. Woodring, General Counsel Department of Education 325 West Gaines Street, Room 1244 Tallahassee, Florida 32399-0400 Honorable John Winn, Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue The issues presented for determination in this matter are as follows: Can the status of tenure be denied, as opposed to being granted or postponed, during the fifth year of employment? Was the tenure decision in this case based upon constitutionally impermissible reasons or a result of noncompliance with written standards, criteria or procedures prescribed by the Board of Regents or university regulations? Did respondent wrongfully determine that petitioner's employment contract would not be renewed beyond June of 1975? Was petitioner wrongfully terminated before he received a due process hearing?
Findings Of Fact Based upon the admissible oral and documentary evidence adduced in this cause, the following pertinent facts are found: Prior to coming to the University of South Florida in 1969, petitioner's educational and employment background was as follows. In 1951, petitioner received his high school diploma from a night school in Cincinnati, Ohio. After he was discharged from the United States Air Force in 1957, he worked as a commercial pilot, a Kentucky State Trooper, a sales executive, independent consultant and instructor for several private industries, and was active in the Civil Air Patrol. Petitioner completed his Bachelor of Science degree in Commerce in 1966 and his Master of Arts degree in Economics in 1967 at the University of Kentucky. During his masters program, he was awarded a nonteaching graduate fellowship and was admitted to Omicron Delta Epsilon, an economics honorary fraternity. In 1967, petitioner entered the Ph.D. program in marketing, minoring in finance, at the University of Iowa in the College of Business Administration. While attending school between 1967 and 1969, petitioner had an academic fellowship and taught an introductory course in marketing at the University of Iowa. He was enrolled in this program when he applied for a teaching position in marketing with respondent in March of 1969. In response to his application for a teaching position at the University of South Florida, petitioner received a letter from the Chairman of the Marketing Department stating in part, "This assistant professorship opening calls for a person holding the Ph.D. or D.B.A. degree, or expecting completion of the degree in 1969 or early 1970." On the Personnel Data Form required to be completed by respondent, petitioner stated that he would be available in September of 1969, preferred a full-time teaching and research position as assistant professor of marketing and expected to receive his Ph.D. from the University of Iowa in February or June of 1970. Petitioner's appointment as Assistant Professor of Marketing in the College of Business Administration was confirmed by President John S. Allen in April of 1969, and he continued in that position until June of 1975 under six annual contracts. At the time of his appointment to USF in 1969, petitioner had completed the course work for his Ph.D. in the College of Business Administration at the University of Iowa, but had not yet completed all, of his comprehensive examinations. In 1970, petitioner was unsuccessful in two attempts to pass the economic theory comprehensive written examination. Because of this and his low grades, he was terminated from the Ph.D. program in the College of Business Administration. In June of 1970, petitioner enrolled in the University of Iowa College of Education doctoral program majoring in business education. He first failed the marketing examination in the College of Education, but later passed it with reservations. Having completed his comprehensive examinations in that program, petitioner returned to USF to teach. The testimony and evidence is conflicting as to whether petitioner's colleagues and department chairman had knowledge that petitioner was no longer pursuing his Ph.D. degree in business administration. Many of petitioner's colleagues testified that they had no such knowledge. While his chairman stated that he knew of petitioner's educational status, he advised the USF Vice- President for Academic Affairs in March of 1974 that petitioner was pursuing his degree from the College of Business at the University of Iowa and that he was "not pursuing a degree in Distributive Education as was alleged." Petitioner's progress on his doctoral dissertation is somewhat in dispute. Apparently, in July of 1971, he submitted a research proposal entitled "Sales Training and Placement of the Disadvantaged," and an informal doctoral student seminar was held on July 28, 1971 to critique the proposal. However, in June of 1972, the Chairman of Business Education at the University of Iowa informed petitioner that "the next step in our program will be for you to develop your research proposal for your dissertation and submit it to me." There was no evidence that Petitioner has done any significant work toward the completion of his dissertation since the submission of his proposal in July of 1971, despite a written warning from his department chairman at USF in June of 1973 that "it is essential that you make substantial progress on your doctoral degree," and a memo dated January 17, 1974, from Dr. Kallaus at the University of Iowa Business Education Department stating that "the dissertation just has to have 'top billing' in order for you to complete your program within the time requirements." Apparently, petitioner has until February of 1978 to complete his dissertation for the Ph.D. in the College of Education at the University of Iowa. Petitioner would still like to obtain his Ph.D. degree but does not know when he will do so. He states that he does not place great emphasis on the actual worth of a dissertation and considers it to be just another research project. While one witness testified that writing a dissertation had not helped him much, every other witness who had written a dissertation and attained his Ph.D. felt that the writing of a dissertation was extremely valuable in teaching, in grading papers, in relating to students and in the acquisition of research skills. There was testimony from two of petitioner's colleagues in the Department of Marketing that in the Fall of 1971, petitioner asked them both if they would be willing to write a portion of his dissertation for him. These conversations were never reported to the Chairman, the Dean or any other person, with the possible exception of one other faculty member. Thus, it does not appear that this played any part in the tenure decision under consideration herein. Petitioner denied having ever asked anyone to write his dissertation. While he may have asked for help with the mechanics of using the computers or the refinement of statistics, the research proposal was already completed and thus he needed no further help, according to petitioner. As noted above, petitioner was continuously employed under annual contracts as an assistant professor of marketing, a tenure-earning position, from September of 1969 through June of 1975, and received pay raises each year. During this period of time, annual evaluations for the purpose of pay raises were performed. For the fiscal year 1972/73, petitioner ranked sixth out of eleven in priority for a pay raise. On a five point scale, the department chairman ranked petitioner three on teaching effectiveness, and four on research and creative activity, academic advisement, service and overall quality. For the fiscal year 1973/74, a committee consisting of five faculty members rated petitioner on a three point scale as a two in the areas of teaching effectiveness, research and creative activity, academic advisement, service and overall quality. The committee noted that the rating on teaching effectiveness was a high two, while the research rating was a low two. For the same year, petitioner was rated by his chairman as three in teaching effectiveness and two in the other four areas. Petitioner was again evaluated in July of 1975. The faculty evaluation committee rated him between 2.0 and 2.6 on a three-point scale in all five areas; and the chairman rated him as a one in all categories except service, for which petitioner was rated as a two. At the time petitioner was hired by respondent, the Florida Board of Regents and the respondent defined tenure as that condition attained through highly competent research and teaching, or other scholarly activities, length of service, and contributions to society. The guidelines for tenure from that time to the present include a requirement for a high degree of competency in the areas of teaching, research or other scholarly activities and service. It has also been a guideline that normally the faculty member shall have completed five years of continuous service and shall have attained the terminal degree before being eligible for tenure. In addition to these written criteria and guidelines for tenure promulgated by the Florida Board of Regents and adopted by respondent, tenure was discussed by various witnesses. It was opined that in order to receive tenure, a faculty member should be of above average competency in at least two of the three areas of teaching, research and service. Others stated that a faculty member should be above average in all three areas, unless he clearly excelled in one area. Still another felt that the faculty member should excel in all three areas before being granted tenure. Average was defined in terms of everyone in the profession, not merely those in one's particular department or college. It was explained that the importance of having a terminal degree is that such a degree implies that certain standards of competence have been met. The status of tenure is important in that it guarantees the faculty member academic freedom and it gives the University time to evaluate how the faculty member will use such freedom. The Dean of petitioner's College further felt that an important criteria or guideline to be used in determining tenure recommendations is the high probability of continued high quality performance and professional growth in the faculty member, as well as the availability of significantly better qualified people, at equal cost, outside the University. It was agreed that with the coming of a new Dean in the Fall of 1973, more emphasis has been placed on research in the College of Business Administration. In January of 1974, which was the middle of his fifth year of continuous employment at USF, petitioner was considered for tenure. Pursuant to this, he prepared what is known as a "tenure packet" for consideration by those who would be voting on the issue. AT this time, it was the practice for the tenured faculty members of the Marketing Department to review said tenure documents and vote by secret ballot as to whether the petitioner would be granted, denied or deferred tenure status. Comment was also solicited by the department chairman from the nontenured faculty members. At this point the chairman reviewed all materials presented and made his recommendation to the Dean of the College of Business Administration, and the Dean made his recommendation to the Vice-President for Academic Affairs. In this case, petitioner prepared his "tenure packet," utilizing a standardized form and supplementing it with additional materials and correspondence. Petitioner's "packet" was approximately one inch thick and was reviewed by all those casting a vote on the tenure issue. After reviewing said packet, the three tenured faculty members of the Department of Marketing unanimously voted to grant petitioner tenure. At least two of the three tenured members also wrote letters of recommendation on his behalf. Several other persons from outside the Marketing Department also wrote letters of favorable recommendation to the department chairman. The chairman also solicited the responses of nontenured department faculty members by means of a peer evaluation form. Apparently, these forms were not utilized by said faculty members in the manner contemplated. Some apparently did not respond at all, and those who did provide a written response did so by comments, rather than by assigning numerical ratings to the items for evaluation. One faculty member concluded that petitioner "is qualified in view of his outstanding relationships with the local business community." Another refused to pass judgment upon the tenure issue inasmuch as he felt tenure should be abolished. However, he did relate to the chairman that he felt that the research and writing presented in petitioner's tenure document was methodologically questionable. He also questioned the reliability of the survey taken by petitioner to support his teaching ability and the inclusion of formal and informal letters and evaluations dealing with the distributive education courses taught by petitioner through the College of Education (See Finding 12 below). This same faculty member wrote favorably of petitioner's accomplishments in the area of service, but concluded that petitioner "would perhaps find more satisfaction and more recognition of his accomplishments in the area of distributive education than in the Marketing Department." A third non-tenured faculty member suggested that there was a degree of bias with regard to the questionnaire soliciting comments regarding petitioner's teaching effectiveness and that it was impossible to determine whether the data obtained refers to marketing or distributive education courses. This faculty member also felt that petitioner's talents and interests lay elsewhere than in the Marketing Department and that one who would make a greater contribution to the Marketing Department could be obtained at a lower price. He therefore did not feel that petitioner should be granted tenure in the Marketing Department. A large portion of petitioner's tenure packet is composed of student comments received as a result of a questionable mailed by petitioner to his former students. Petitioner was of the opinion that evaluation of teachers by graduates after a period of time was more meaningful than the present student evaluations. Department funds were used to mail these surveys and petitioner prefaced it with a letter to his former students. This letter contained the following language: "Many times in class I said that you would never really know the value of your classes until later. Now it is later; and I need your help. As you know my teaching methods and objec- tives are rather controversial. My appli- cation for tenure and promotion must be submitted on January 15th, and I would like to include in this application your comments as to the effect (good or bad) if any, that I as a teacher have had on your career. If you have the time please include a short note on what you are doing. Teachers seldom know what happens to their former students. I want to thank you in advance for doing this on such short notice. Good luck." It was felt by most witnesses questioned on the subject that the use of such a cover letter and the form of the questions contained in the survey could produce only biased results. The chairman of the Marketing Department reviewed the materials discussed in paragraphs 9 through 12 above and recommended that petitioner be granted tenure, concluding that petitioner had maintained a consistent pattern of productivity over the past five years in teaching, research, writing, presenting programs and service. It was believed by the chairman that petitioner's efforts in all areas would continue at a rapid pace and that "it would be difficult if not impossible to replace this man with one so dedicated and with his unique talents considering his present rank and salary." The chairman praised his service activities and called him an innovative teacher. He remarked that "Professor Wallace is the only person in Marketing (other than Professor Stevens) who appears willing to work with Distributive Education or other units of the University on interdisciplinary programs." With regard to the area of research, the chairman remarked in part that "Some of his research efforts have been some- what misdirected to other than scientific or theoretical marketing per se, but the results of such efforts are applicable to Marketing Education, Distributive Education, and general Business Education. His research methodology is at times technically ques- tionable; however, he has been asked to pre- sent papers and be on discussion panels for the Southern Marketing Association and the American Marketing Association. His articles have appeared in refereed and non-refereed journals..." The Dean of the College of Business Administration reviewed petitioner's tenure packet, the secret ballot by tenured faculty members, letters of recommendation, comments by some nontenured faculty members, and the opinions and recommendation of the Department Chairman. The Dean recognized that petitioner had good rapport with students and had emphasized a practical approach in teaching by taking classes out to businesses. However, it was felt that petitioner's skills seemed "more in salesmanship and organizing ability than in academic analysis and scholarship" and that "he would be more at home practicing in the business world than teaching in the academic world." Dean Dye felt that what was lacking in the marketing faculty were persons evidencing a high degree of scholarship and noted that petitioner had not yet completed his doctoral studies. It was felt that good people, with terminal degrees and research drive were available and should be sought, and that it was not in the best interests of the University to grant petitioner tenure. Dean Dye did not philosophically disagree with petitioner's articles, but felt they were neither scholarly nor based on competent research methodology. The Dean has not seen any significant results done in the area of research by petitioner. As for the area of service, Dean Dye felt that petitioner's efforts were above average in quantity, but below average in quality. With Dean Dye's recommendation, the tenure documents were then sent to Dr. Carl Riggs, Vice-President for Academic Affairs. Dr. Riggs declined to recommend the granting of tenure in petitioner's case, thus supporting the recommendation of Dean Dye. When petitioner requested the reasons for his negative recommendation, Dr. Riggs restated the reasons stated or implied in Dean Dye's explanation of tenure recommendation. These were: "1) No terminal degree and lack of compen- sating experience or background. An apparent lack of scholarship, i.e., depth of knowledge in field, and scholarly productivity not sufficiently evident. Your strengths supplement rather than complement those of other faculty in this department and the need for complementation is greater. Interests of the Department and College better served by finding a replacement who can perform or perform better those functions needed by the Department of Marketing and the College of Business Administration." Riggs was of the opinion that the University could attract persons more qualified than petitioner and that petitioner had done no significant research in the area of marketing. While Dr. Riggs may have disagreed somewhat philosophically with the opinion-type articles written by petitioner, he thought they were refreshing. His decision to deny tenure to petitioner was not based on a difference of opinion with the views expressed in petitioner's writings, but rather because he felt petitioner's articles were not based upon competent research methodology. Riggs acknowledged petitioner's success in the area of service and distributive education. Riggs further stated that neither politics nor petty dislikes or jealousies within the College of Business Administration played any part in his consideration of whether petitioner should be granted tenure. The process of evaluation for tenure recommendation was thus completed, having travelled the following route: preparation by petitioner of his tenure packet; the favorable vote of the department's three tenured faculty members; the receipt of comments from some of the nontenured faculty; the favorable recommendation of the Department Chairman; the negative recommendation of the College Dean; and the negative decision of the Vice-President for Academic Affairs. Petitioner was thereafter timely notified on March 15, 1974, by the Vice- President for Academic Affairs that his employment would not be renewed after Quarter III of the academic year 1974/75, and that the last day of employment with the University would be June 19, 1975. Informal grievance proceedings within the university were thereafter instituted by petitioner. Failing to achieve a satisfactory result from such proceedings, petitioner filed his complaint seeking a plenary hearing. This complaint was forwarded to the Division of Administrative Hearings, and the undersigned Hearing Officer was ultimately assigned to conduct the plenary hearing. The evidence presented at the hearing does suggest that there was some unrest and difference of opinion within both the Department of Marketing and the College of Business Administration. It appears that the Marketing Department was divided into two factions, identified by witnesses as the "qualitative" and "quantitative" factions. There was also some dispute within the College regarding Dean Dye's hiring practices and criteria and guidelines for tenure decisions. While much time and evidence was devoted to the existence of these factions and disputes, it cannot be found from the evidence that their existence tainted the procedures for tenure evaluation in this case. The evidence adduced at the hearing clearly illustrates that petitioner's highest level of competence lies in the area of service to the community. He has built a good rapport with many Tampa businessmen and has organized various business meetings and seminars. Many of those businessmen who testified acknowledged that for the first time they were drawn to the University as a result of petitioner's efforts in a Top Management Seminar and a Career Development Program. Some members of the Marketing Department testified that petitioner was the outstanding member of the department in the area of service to the community. The Vice-President for Academic Affairs agreed that petitioner was doing one of the better jobs within the College of Business Administration in the area of service to Tampa businessmen. While a few members of the faculty did not feel that petitioner's presentation at the Top Management Seminar evidenced scholarship, most Tampa businessmen who testified praised petitioner's efforts as demonstrating a contemporary approach to business problems and a working, practical knowledge in the filed of marketing. With regard to petitioner's efficiency in the area of teaching, it has already been pointed out that petitioner received predominantly average to above average ratings by his peers over the six years in question. A number of his former students testified and concluded that petitioner was one of the best teachers they had ever had. They stated that they worked hard in petitioner's classes and learned more in his classes than in other classes. Some testified that petitioner's courses were more difficult and demanding then other business courses. Petitioner stressed the application, rather than the mere memorization, of theory and sent this students out to various businesses to prepare research projects. Some of his former students described him as dynamic, interesting, resourceful and well-prepared for class. Other faculty members thought petitioner to be sincerely interested in practical education and in helping his students. The graduating seniors of 1974 voted petitioner one of the top ten teachers of the University of South Florida. There was evidence that petitioner's student evaluations improved markedly in 1973. One marketing professor attributed this to the fact that petitioner stopped giving written examinations and his students received higher grades. The evidence illustrates that in 1972, petitioner's student evaluations were at approximately the college median level. In 1972, he gave his students 17 A's, 100 B's 34 C's, 4 D's and 11 F's. In 1973 his student evaluations were consistently above the college median level. In that year the grade distribution to students was 138 A's, 64 B's, no C's, 1 D and 1 F. Other reasons were, however, offered for the increase in high grades, such as student motivation, change of teaching methodology and the quality of student who registers for the course based upon the reputation of the teacher as being hard or easy. A faculty member who substituted for petitioner testified that petitioner's students had not read the course syllabus or the textbook. Others testified that. sending students to various businesses to do research projects was not innovative, and that other members of the marketing department utilized similar techniques. Of the three areas for evaluation, it was the conclusion of some that petitioner's weakness lies in the area of research and other scholarly activities in the field of marketing. His progress on his dissertation has been previously discussed. While he has written a number of published articles, the evidence shows that most of these can be classified as opinion articles or essays, rather than as articles based upon competent research methodology. Several articles and papers are in the area of business education, not marketing. There was some testimony that these articles, many of which are variations on the same theme, constituted comments on relevant social issues, and should not be measured on the basis of whether they are scholarly and methodologically sound. Yet, Petitioner attached his professional credentials to these articles and listed them in his tenure documents under the heading of scholarly publications. The Dean of the College of Business Administration and the Vice-President for Academic Affairs, who voted against petitioner for tenure, testified that the main reason for not granting tenure was lack of a terminal degree and lack of evidence of scholarly research. Although some disagreed philosophically with the articles written by petitioner, their vote to deny tenure was not based on this fact, but upon the fact that the articles did not display evidence of competency in scholarly research. Petitioner was instrumental in getting other marketing professors to write articles for Florida Trend Magazine, but he himself did not participate in the writing of the series of articles which appeared. Petitioner also listed in his tenure documents that he was working on a book. There was evidence that no progress, in written form, has been completed to date on said book, although petitioner stated in his tenure documents that "the basic research has been completed." Petitioner did obtain six teaching grants from the State Department of Education. However, these grants were in the area of distributive education or in the field of training teachers and were obtained through the College of Education, not the College of Business Administration. The evidence concerning petitioner's degree of competency in the area of research and other scholarly activities with regard to seminars and outside consulting work is conflicting. While many indicated they were pleased with petitioner's performance in the seminars and consulting work, others expressed displeasure with petitioner's performance. Petitioner has received recognition for his publications. He has presented papers to the Southern Marketing Association, and was nominated for the American Association of Collegiate Schools of Business - Western Electric Fund Award. These presentations were, however, more in the field of business or distributive education than in marketing.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is recommended that the complaint be dismissed for the reason that petitioner did not meet his burden of demonstrating the unlawfulness of the tenure and nonrenewal decisions reviewed herein. Respectfully submitted and entered this 26th day of ,January, 1976, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9676 COPIES FURNISHED: William D. Holland, Jr., Esquire Suite 304, First National Bank Building 215 Madison Street Tampa, Florida 32602 D. Frank Winkles, Esquire & William E. Sizemore, Esquire of Shackleford, Farrior, Stallings & Evans P.O. Box 3324 Tampa, Florida 3324 Dr. Cecil Mackey, President University of South Florida ADM 241 Tampa, Florida
The Issue The issue is whether Respondent properly decided to deny Petitioner tenure and promotion.
Findings Of Fact On or about August 8, 1997, Petitioner began working for Respondent as an Assistant Professor in a tenure-earning position in the COE, Department of Health, Physical Education, and Recreation (DHPER). Because Petitioner was serving in a tenure-earning position, Respondent had to award her tenure by the end of six years of continuous full-time service or give her notice that Respondent would not offer her further employment beyond the end of the seventh year of employment. Petitioner received a copy of the applicable tenure criteria soon after she began her employment. The tenure criteria for scholarly publications required the following: (a) publish or show acceptance of at least three publications, including books, monographs, and articles in local, state, regional and national journals, which meet the peer-review process, not including abstracts/proceedings; (b) achieve additional publication credit, which may include individual citations in a text's quotes or credits for scholarly endeavors; and (c) present at least two papers at state, regional or national professional meetings. Petitioner also received a copy of Respondent's criteria for promotion from Assistant Professor to Associate Professor. The criteria state as follows in relevant part: The minimum number of publications will be three (3), which must be in indexed refereed professional journals, of which at least two (2) must list the candidate as the primary author. This includes, not in addition to, chapters in books, monographs for national use, and books. Chapters will treated as journal publications. The number of publications will be cumulative. Respondent is required to provide its faculty members with an annual faculty evaluation. For faculty members in tenure-earning positions, Respondent also is required to provide an annual tenure appraisal. On April 24, 1998, Petitioner received her 1997-1998 faculty evaluation. The evaluation reflected Petitioner's poor rating for evidence of papers or articles published in professional journals and/or of books published. There is no evidence that Respondent provided Petitioner with an annual tenure appraisal for the 1997-1998 academic year. Each academic term, Respondent and each of its faculty members, in tenured and non-tenured positions, sign an Assignment of Responsibility Form. The form lists the credit and non-credit generating activities and assigns a percentage of the employee's designated effort for each activity. The total percentage of designated effort for each academic term should equal 100 percent for one full-time-equivalent (FTE) faculty. The credit generating activities are specific student classes/courses. An assignment to teach courses with more than cumulative credit hours in the same semester is considered an overload. Faculty members on a nine-month pay plan are never required to accept an overload assignment. Assuming responsibility for designated effort in excess of 100 percent is strictly voluntary. Instructors receive additional pay beyond their base salary when they accept an overload assignment. Respondent always gives its nine-month faculty the opportunity to teach extra classes as an overload before hiring additional staff. The same is true for teaching summer school. Respondent's nine-month faculty has first choice to earn additional pay by teaching classes in summer school before Respondent hires adjunct professors. The nine-month faculty is not required to teach summer school. The non-credit activities include the following: supervision of cooperative education; (b) clinical instruction; (c) other instructional efforts (non-credit); (d) research; (e) public service; (f) academic advisement; (g) academic administration; (h) university governance; (i) leave of absence with pay; and (j) collective bargaining release time. There is no set percentage of designated effort for any particular non-credit activity. Respondent's faculty can always request that some percentage of their designated effort be attributable to one of the non-credit activities, such as research. In such a case, Respondent would assign the faculty member less designated effort to other non-credit activities such as academic advisement. In every case, tenure-earning faculty members know or should know that Respondent expects them to begin working on research projects when they are hired in order to meet the tenure criteria for scholarly publications within the required time frame. This is true regardless of whether they elect to teach overloads or summer school and regardless of whether they request and receive a specific amount of designated effort for research each academic term. Other than as set forth below, there is no evidence that Petitioner ever requested Respondent to assign her a greater percentage of designated effort to research. On April 28, 1998, Petitioner signed the Assignment of Responsibility Form for the 1998 Spring semester. The form indicates that 86 percent of Petitioner's designated effort was spent teaching five classes for a total of 13 credit hours. Her only other assignment was academic advisement, which represented 14 percent of her designated effort. Petitioner agreed to teach during the 1998 Summer B semester. She taught two classes for a total of 3 credit hours, representing 64 percent of her designated effort. She had no other assignments that summer. For the 1998 Fall semester, Petitioner accepted a teaching overload. She taught six classes for a total of 15 credit hours, representing 99 percent of her designated effort. She also performed academic advisement for 21 percent of her designated effort. In the Spring semester of 1999, Petitioner taught five classes for a total of 13 credit hours, representing 86 percent of her designated effort. She was assigned to perform academic advisement for the balance of her time, equal to 14 percent of her designated effort. On April 28, 1999, Petitioner received her 1998-1999 faculty evaluation form. The form again reflected her poor rating for evidence of papers or articles published in professional journals and/or books published. On June 1, 1999, Petitioner received a tenure appraisal for the 1998-1999 academic year. The appraisal informed Petitioner that she needed to improve in the research category. Specifically, she needed to publish and present at least three to four research articles within a five-year period before applying for tenure. For the Summer B semester of 1999, Petitioner taught two classes for a total of four credit hours, representing 84 percent of her designated effort. She had no other assignments that summer. In the Fall semester of 1999, Petitioner taught seven classes for a total of 16 credit hours, representing 106 percent of her designated effort. She also performed academic advisement for an additional 20 percent of designated effort. For the Spring Semester 2000, Petitioner taught six classes for a total of 14 credit hours, representing 93 percent of her designated effort. She served as an academic advisor for an additional 20 percent of her designated effort. On April 26, 2000, Petitioner received her 1999-2000 faculty evaluation form. The form indicates that Petitioner's research and creative ability were not applicable. The record does not show that Petitioner engaged in any scholarly presentations or research and writing projects during the 1999- 2000 academic year. In the Summer B term of 2000, Petitioner taught one class for a total of one credit hour, representing four percent of her designated effort. She did not have any other assigned duties that summer. For the Fall semester 2000, Petitioner taught seven courses for a total of 14.5 credit hours, representing 91 percent of her designated effort. She also agreed to devote three percent of her designated effort in each of the following areas: (a) research; (b) public service; and (c) academic advisement. In the Spring semester of 2001, Petitioner taught six classes for a total of 14 hours, representing 93 percent of her designated effort. She also was assigned the following responsibilities: (a) five percent of her time in research; (b) five percent of her time in public service; and (c) 10 percent of her time in academic advisement. For the Summer A term of 2001, Petitioner taught two classes for a total of three credit hours, representing 62 percent of her designated effort. In Summer B term of 2001, Petitioner taught two classes for a total of three credit hours, representing 65 percent of her designated effort. She had no other assignments that summer. On July 5, 2001, Petitioner received her annual faculty evaluation for the 2000-2001 academic term. Petitioner received a fair rating regarding evidence of papers or articles published in professional journals and/or of books published. On August 27, 2001, Petitioner received her annual tenure appraisal for the 2000-2001 academic term. The appraisal acknowledges that Petitioner had improved significantly in the areas of research and scholarly activities. According to the appraisal, Petitioner had made several research presentations, submitted articles for publication, and choreographed several dance pieces for the Orchesis Dance Concert and public school activity programs. The appraisal stated that after a few of Petitioner's research articles were published, she would be on par for complete satisfaction of the scholarly publications requirements. The August 27, 2001, tenure appraisal also commended Petitioner for her public service work. At the same time, the appraisal warned Petitioner not to commit too much of her time to public service because she might neglect other tenure criteria areas. The appraisal advised Petitioner that it was extremely important to balance her time between teaching, research, and service. In the Fall semester of 2001, Petitioner taught five classes, for a total of 16 credit hours, representing 96 percent of her designated effort. She spent 20 percent of her designated effort working as an academic advisor. For the Spring semester of 2002, Petitioner taught six classes for a total of 14 credit hours, representing 93 percent of her designated effort. She divided the balance of her designated effort as follows: (a) five percent to research; five percent to public service; and (c) 10 percent to academic advisement. In the Summer A term of 2002, Petitioner taught two classes for a total of three credit hours, representing 65 percent of her designated effort. She had no other assignments that summer. For the 2001-2002 academic term, Respondent did not perform a faculty evaluation or tenure appraisal of Petitioner. Dr. Virden Evans, Chairman of DHPER, gave Petitioner copies of the evaluation forms and requested that she perform a self- evaluation before meeting with him to discuss her performance. Petitioner never returned the evaluation forms to Dr. Evans. On September 9, 2002, Petitioner submitted her applications for tenure and promotion, together with a portfolio to document her qualifications. The tenure application listed the following two research projects as in progress: (a) a 2001 project titled "Exercise Adherence Among African-American Females"; and (b) a 2002 project titled "Perceived Stress and Burnout of MEAC Track and Field Athletes." There is no evidence that Petitioner completed, or submitted for publication, a paper or article based on either of these research projects. The tenure application also listed a 2002 research project titled "An Assessment of NCAA D-1A Academic Advisors Salaries", naming Petitioner as a contributing, but not leading participant. The application indicated that the participants in the study submitted the research project for acceptance at the 2003 American Alliance of Health, Physical Education, Recreation, and Dance (AAHPERD) 118th National Convention as part of its program and proceedings during a research consortium poster session. There is no persuasive evidence that the research project was accepted at the national convention in Baltimore, Maryland, as submitted. During the hearing, Petitioner presented evidence that the research project involving academic advisors salaries was submitted as a one-page abstract in May or June of 2002, and accepted in November or December 2002, for poster presentation at the February 2003 Southern District AAHPERD Convention, in Savannah, Georgia. There is no persuasive evidence that Petitioner timely provided Respondent with documentation of the abstract's acceptance as a poster presentation during a convention proceeding or that the research project resulted in a peer-reviewed written paper that was ever published other than as an abstract in the convention program. The tenure criteria at issue here specifically exclude abstracts/proceedings. Petitioner's tenure application listed several dance productions, naming her as the director and choreographer. It is apparent that Petitioner spent valuable time creating the dances, writing scripts for skits, designing costumes, etc. However, the greater weight of the evidence indicates that these creative activities are not scholarly publications in journals that meet the peer-review process. During the hearing, Petitioner presented evidence that she included a reference to her doctoral dissertation in her portfolio. The dissertation, entitled "A Comparison of Perceived Stress Levels of College Freshman Athletes and Non- Athletes" was published in 1987 by the Florida State University, College of Education, Department of Movement Science and Physical Education, in partial fulfillment of the requirement for Petitioner's degree of Doctor of Philosophy. The most persuasive evidence indicates that the dissertation is not a peer-reviewed scholarly publication in a journal or a book, completed by Petitioner within her tenure-earning time frame. Petitioner is credited as the author of one scholarly publication that meets the requirements of the applicable tenure and promotion criteria. In August 2002, Petitioner's article entitled "Introductory Activities in Elementary Physical Education Classes" was accepted for publication in the Winter 2003 Journal of the Florida Alliance for Health, Physical Education, Recreation and Dance. In September 2002, Dr. Evans continued to serve as Chairman of DHPER. As a tenured professor, Dr. Evans attended some of DHPER's Tenure and Promotion Committee meetings but did not vote on Petitioner's applications for two reasons. First, he abstained because, as Chairman of DHPER, he would have to make a recommendation on the applications to the COE Tenure and Promotion Committee. Second, Dr. Evans had a close professional relationship with Petitioner and reserved his input on her applications, hoping that she would meet the publication requirements before he had to take a position. Dr. Janet Sermon, COE's Assistant Dean for Academic Affairs, was one of DHPER's tenured faculty members. In the fall of 2002, Dr. Sermon often was required to act on behalf of the COE's Dean or, occasionally, in the capacity of COE's Acting Dean in recommending approval or disapproval of tenure and promotion applications to the University Tenure and Promotion Committee. Therefore, she did not participate in DHPER's Tenure and Promotion Committee meetings. She did not vote on Petitioner's applications due to this potential conflict of interest. Coach Bobby Lang was one of DHPER's tenured faculty members. He was on medical leave during the fall of September 2002. The most credible evidence indicates that Coach Lang had notice of Petitioner's pending applications but chose not to participate in DHPER's Tenure and Promotion Committee meetings while on medical leave. Coach Samuel Bogan was one of DHPER's tenured faculty. His coaching schedule made it difficult for him to participate in DHPER Tenure and Promotion Committee meetings. Coach Bogan had notice about Petitioner's pending applications but was absent when the DHPER Tenure and Promotion Committee voted on her applications. DHPER had four other tenured faculty members: (a) Dr. Steve Chandler; (b) Dr. Maria Okeke; (c) Dr. Barbara Thompson, Chairperson of DHPER's Tenure and Promotion Committee; and (d) Dr. Joseph Ramsey. DHPER's Tenure and Promotion Committee met for the first time on September 16, 2002. The committee did not consider Petitioner's application at that meeting. The DHPER Tenure and Promotion Committee met again on October 2, 2002, to vote on Petitioner's tenure and promotion applications. Coach Bogan, Dr. Evans, Dr. Sermon, and Coach Lang were not present for reasons stated above. A secret ballot on Petitioner's tenure application resulted in two (2) votes to deny and two (2) abstentions. A secret ballot on Petitioner's promotion application resulted in three (3) votes to deny and one (1) abstention. In a memorandum dated October 3, 2002, Dr. Thompson advised Dr. Evans of the committee's decision to recommend denial of Petitioner's request for tenure and promotion. In a letter dated October 4, 2002, Dr. Evans advised Petitioner of the committee's vote to recommend denial of her applications. In a letter dated October 8, 2002, Dr. Evans explained to Petitioner that the committee based its recommendation on the apparent lack of a sufficient number of publications. Subsequently, Dr. Evans recommended approval of Petitioner's applications to the COE Tenure and Promotion Committee. Thereafter, the COE committee voted to recommend denial of both applications. Subsequently, COE's Dean recommended denial of Petitioner's applications to the University Tenure and Promotion Committee. The University committee voted to recommend approval of Petitioner's promotion application and denial of her tenure application. Dr. Fred Gainous was Respondent's President during the time that Petitioner's applications were pending. Dr. Gainous had the responsibility to nominate candidates for tenure to Respondent's Board of Trustees, the entity with the authority to make final decisions granting tenure. The Board did not consider applications for tenure without such a nomination. Dr. Gainous did not nominate Petitioner for tenure before Respondent's Board of Trustees. President Gainous had authority to make the final decision regarding Petitioner's application for promotion. Dr. Gainous took no action in this regard because Petitioner's promotion was a moot question in light of the denial of her application for tenure and the issuance of a terminal contract for the 2003-2004 academic term. In a letter dated March 31, 2003, President Gainous advised Petitioner that her application for tenure was denied and that she would not be offered further employment beyond the end of her seventh year of employment. The letter states that the action was based on Petitioner's failure to meet the publication requirements of the COE. Dr. Gainous sent Petitioner a letter dated June 3, 2003. The letter advised Petitioner that her application for promotion was denied.
Recommendation Based upon the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered denying Petitioner tenure and promotion and terminating her employment. DONE AND ENTERED this 5th day of October, 2004, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD 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 5th day of October, 2004. COPIES FURNISHED: Avery D. McKnight, Esquire Ruth Nicole, Esquire Florida A & M University 300 Lee Hall Tallahassee, Florida 32307-3100 Patricia A. Tucker 2802 Primrose Lane Tallahassee, Florida 32301 Elizabeth McBride, General Counsel Florida A & M University 300 Lee Hall Tallahassee, Florida 32307-3100 Dr. Fred Gainous, President Florida A & M University 400 Lee Hall Tallahassee, Florid 32307-3100
Findings Of Fact Petitioner Hamdi A. Mohammed is a tenured professor in the Department of Dental Biomaterials, College of Dentistry, at the University of Florida. He received his dental degree in 1963 from the University of Alexandria in Egypt, obtained a Masters Degree in Prosthetic Dentistry in 1967 at Northwestern University, and his Doctorate Degree in Dental Materials and Engineering from the University of Michigan. Prior to the commencement of his employment at the University of Florida in 1974, he had served as an assistant professor and then associate professor at the University of Connecticut. (Testimony of petitioner, Exhibit 27 (Deposition of Petitioner)) Petitioner was first employed at the University of Florida in 1974 as a professor at a salary of $30,000.00. The notice of appointment stated that the Board of Regents had approved the appointment upon the recommendation of the President for 1974-1975 for a period of twelve months. In 1975, the Department of Dental Biomaterials, among others, was created within the College of Dentistry, and Petitioner was appointed chairman of the Department by Don L. Allen, Dean of the College of Dentistry on March 1 1975. Thereafter, the annual notice of appointment, dated November 25, 1975, which was signed by Dean Allen and Petitioner, reflected that the Board of Regents had approved Petitioner's appointment upon the recommendation of the President, as professor and chairman from July 1, 1975 to June 30, 1976 at a salary of $30,000.00. (Testimony of Petitioner, Allen, Exhibits 4, 6, 26 (Deposition of Allen), 27 (Deposition of Petitioner)) On February 24, 1976, Dean Allen recommended to the Board of Regents that Petitioner be tenured in the rank of professor when he became eligible on July 1, 1976. By letter of August 23, 1976, the President of the University informed "Professor" Mohammed that the Board of Regents had approved the tenure recommendation. Subsequent annual notices of appointment reflected that the President had approved the appointment of Petitioner for the ensuing year under Class Code 9060 as "chairperson and professor" in the College of Dentistry. In each instance, Petitioner acknowledged the appointment by signing the notice of appointment. (Exhibit 4) In the spring of 1980, Dean Allen received complaints against Petitioner from several members of the faculty in the Department of Dental Biomaterials. The complaints dealt generally with Petitioner's performance as chairman of the department primarily with respect to his alleged excessive absences and unavailability in the department, and taking credit for research efforts of other faculty members. Subsequently, on May 19, 1980, Dean Allen met with Petitioner to discuss his annual evaluation. The concerns which were discussed and later memorialized in the written "Annual Departmental Chairperson Review" were the "rather significant turnover of faculty members in the department" and "lack of a significant number of publications from the department." The written evaluation stated that "Dr. Mohammed's department, under his leadership, continues to do a very fine job in the dental educational program as well as the research program". The complaints of the faculty members were not discussed at the meeting. Dean Allen reported the complaints to Dr. Kenneth F. Finger, acting vice president for health affairs, who referred him to Thomas S. Biggs, Jr., the University attorney. Mr. Biggs, in turn, brought in Dr. Catherine A. Longstreth, Special Assistant to the President of the University. After discussing the matter, Biggs assigned an assistant to investigate the complaints and asked Dean Allen to provide him with further information concerning certain of Petitioner's activities in the department. At some point in time after several meetings, Biggs and Longstreth advised the Dean that he had the right to remove or not to reappoint Petitioner as the chairman at the end of the contract period on June 30, 1980, but could not remove him during a contract period without first affording Petitioner a hearing and showing cause for removal. They also agreed to support the Dean if he made the determination not to reappoint Petitioner as chairman of the department. At this time, a report of the investigation conducted by the University attorney's office had been provided to the participants wherein the investigator had found several instances of lack of verification of certain of the complaints made by the faculty members against Petitioner, but was otherwise inconclusive. (Testimony of Longstreth, Biggs, Allen, Exhibits 11, 20, 25 (Deposition of Longstreth), 26 (Deposition of Allen)) Dean Allen reported to Dr. Finger that he intended to meet with Petitioner and tell him that he would not continue as chairman of the department. Dr. Finger suggested that Dean Allen discuss the matter with some of the department's chairmen. On June 19, 1980, Dean Allen informed Petitioner of the faculty complaints and told him that, in view of the gravity of the situation, he considered that he had no option other than to try to rebuild the department with a new chairperson. The following day, Dean Allen met with five of the departmental chairpersons and informed them of his intent not to reappoint Petitioner as chairman of the Department of Dental Biomaterials. Dean Allen also met with Petitioner on June 22, 1980. At some time during their two meetings, the Dean told Petitioner that several "options" were open to him in the matter. These included non reappointment effective July 1, 1980 or July 1, 1981, or total resignation immediately from the faculty and the chairmanship, or resignation from the chairmanship only. However, Dean Allen told Petitioner that it seemed most appropriate for him to submit a letter of resignation prior to July 1, 1980 as chairman, which would be effective on June 30, 1981, and that he would keep the matter confidential until the beginning of 1981 so that Petitioner would have an opportunity to seek another position. Dean Allen indicated that he had discussed the "options" with Dr. Longstreth and Mr. Biggs. Petitioner testified at the hearing that the Dean had also told him that he was compelled to remove Petitioner as chairman upon the direction of those individuals. Dean Allen denied at the hearing that he had made such a statement. This conflict in the testimony cannot be resolved. In any event, by letter of June 23, 1980, Petitioner submitted his resignation as chairman effective June 30, 1981, and therein expressed the intent to remain in his position as a tenured professor in the department. The letter stated petitioner's understanding that his resignation would not reflect on his professional competence and ethical conduct or his ability to effectively function as a member of the tenured faculty, and requested that the Dean sign a copy of the letter if he concurred therein. Dean Allen expressed his concurrence by signing the copy of the letter on June 23, 1980. Also, by memorandum dated August 8, 1980, Dean Allen formally accepted the letter of resignation. In the memorandum, Dean Allen assured Petitioner that the fact of the resignation would not be disclosed until January, 1981. (Testimony of Petitioner, Allen, Exhibit 5, Exhibit 26 (Deposition of Allen), 27 (Deposition of Petitioner)) During ensuing months, Petitioner and Dean Allen exchanged correspondence concerning the Dean's stated intent to reduce Petitioner's state salary by $6,000.00 at the time the resignation as departmental chairperson became effective. By letter of October 22, 1980, Petitioner wrote to the Dean that, after due consideration, he was withdrawing his resignation. A letter from his attorney of the same date stated that it was apparent that proper procedures for handling complaints against faculty members were not followed, that Petitioner had been pressured and coerced into tendering his resignation, and that he had been advised that his income would be seriously affected if the resignation became effective. Mr. Biggs, the University attorney, responded to this letter of October 24th stating that the University had no intention of acknowledging the purported resignation withdrawal, but that the Dean, after appropriate consultation with other University officials, had made the decision that the interest of the department and college could best be served by someone else in the position as chairman. It further stated that petitioner did not have tenure in the administrative post of department chairman, and that, even absent a resignation, it was within the power of the Dean to make a change in the chairmanship of the department. (Exhibit 5) On December 12, 1980, Petitioner requested Dr. Finger to initiate a grievance proceeding and hearing "to investigate the ethics and justification of a resignation imposed upon me by Dr. Don L. Allen." In his letter, Petitioner stated that he had been pressured into resigning, but that after submitting the resignation, it was determined that the complaints against him had proved to be unfounded, and therefore he had withdrawn the resignation. He further stated his belief that the Dean's interest in discrediting him emanated from his discrimination against petitioner's national origin, citing an instance when Dean Allen had once stated in a public search committee meeting that he did not trust orientals and simply could not work with them. By letter of February 9, 1981, Dean Allen explained to Dr. Finger his reasons for his "plan" to remove Petitioner as chairman of the Department of Dental Biomaterials. He therein stated that the basic problem was the inability of Petitioner to develop a reasonably stable department from the standpoint of personnel to ensure its effectiveness. The letter further requested Dr. Finger's concurrence for the Dean to send Petitioner a letter stating that he would not be appointed chairperson of the department, effective with the 1981-1982 academic year appointment. Further correspondence ensued between Dean Allen and Petitioner, which culminated in the Dean's letter of May 1, 1981 advising Petitioner that after receiving certain materials from him, he had "reconsidered" the matter and it was his conclusion that the department had not demonstrated the continuity of faculty and staff to enable it to fulfill its responsibilities and commitments to the long-range goals of the College of Dentistry. It further stated the Dean's conviction that new leadership was required and that therefore he would not reappoint Petitioner as chairman at the end of the academic year. Effective July 1, 1981, Petitioner was not reappointed as department chairman, and an acting chairman has been serving in such capacity since that date. Petitioner has continued to serve as a professor in the department without reduction in salary. (Testimony of Allen, Exhibits 8, 13, 17, 18, 25 (Exhibits to Deposition of Longstreth)) It has been the general practice at the University of Florida for departmental chairmen to be appointed by the particular college dean with the concurrence of the appropriate vice president, without the need for personal approval by the President. Prior instances in which departmental chairmen had left that position were normally due to retirement or a voluntary desire to return to a purely faculty status without administrative duties. In such cases, the change normally would be effected simply by a resignation or the issuance of a personnel form showing the change in status. Although a chairman's state salary normally was above that of other members of the faculty, the specific amount for performing the duties of chairman was not identified as such until 1981 in the College of Dentistry. (Testimony of Biggs, Longstreth, Exhibit 5) Petitioner's status as a professor and later as a departmental chairman and professor was as an instructional and research faculty member (I and R) as opposed to the administrative and professional staff (A and P). The latter category includes specialized positions such as the university attorney, affirmative action officer, and clinical laboratory specialist. There is a separate classification for chairperson and professor which is Class Code 9060 in the State University System. A professor is under another class code. The classification system is designed to reflect a person's current duties and responsibilities and is relevant to the issue of collective bargaining unit determinations. Academic rank and tenure are reflected on annual notices of appointment. Those notices for Petitioner after he acquired tenure showed that he was in tenure status 1. He remained in tenure status 1 after July 1, 1981, as reflected in his notice of appointment as professor for the 1981-1982 school year. No instances have been shown where the Board of Regents or Respondent interpreted pertinent statutes and rules as providing for tenure with respect to administrative duties assigned to a faculty member, such as departmental chairman. Tenure recommendations and decisions uniformly have applied solely to faculty rank. It is considered common knowledge in academic circles that the concept of tenure does not apply to the position of departmental chairman. (Testimony of Perry, Allen, Longstreth, Biggs, Exhibits 25 (Deposition of Longstreth), 26 (Deposition of Allen), 28 (Deposition of Smith) 29 (Deposition of Wickwire), 30 (Deposition of Mahan), 31 (Deposition of Colaizzi)) Dean Allen's testimony at the hearing concerning the reasons that prompted him to decide not to reappoint Petitioner as chairman indicated that the accuracy of the faculty complaints was not the critical factor in his decision. He testified in the following vein: The big thing was whether these things were totally accurate or not, if Hamdi was perceived this way by this many people that were willing to put it down on paper, to make that kind of a commitment of what they were convinced of, then I felt like based on the history of the de- partment where everyone, every faculty member that had been in the department at this time had left or were leaving with the exception of Dr. Shen, who I believe had just joined the department, and some other things. (T 38-39) . . . that because I considered them to be generally true, and what I mean by generally true, I did not mean that each little word might be true but that the general situation was such that if these people, who some of them I knew, perceived of their chairman that way and would put it down in writing and knowing that the department had had difficulty in retaining faculty members, that all of those things taken together led me to believe that the perception of the people that worked with Dr. Mohammed as a colleague that were supposed to have some degree of freedom as a faculty member, that they did not see that they had that degree of freedom to the ap- propriate amount, and if Dr. Mohammed was perceived that way and this was the reason these people were leaving, then we needed an individual with a different kind of per- ception to chair that department. (T 111, Exhibit 26 (Deposition of Allen)) Dean Allen and Petitioner had been close personal friends for a number of years prior to the events of 1980. Petitioner's claim that the Dean's actions against him were prompted by discrimination against Petitioner's national origin was based primarily on a statement made by the Dean in 1978 before members of a faculty search committee that was considering several applicants for the position of chairman of the Department of Oral Surgery. Petitioner became upset as the result of an alleged statement by the Dean that foreigners could not be trusted. Two of the final three candidates were of foreign origin. In fact, the Dean had indicated to the committee that the position in question required a good working basis between the hospital and the medical school, and that he thought it was extremely important that the chairman knew American hospital procedures. He also had indicated some concern after interviewing the two foreign individuals that they wanted to tell him what they thought he wanted to hear rather than what they really thought. As a result of Petitioner's complaint to the Dean, the latter apologized at the next faculty meeting to the effect that if anyone had felt that he had said something derogatory about foreigners, he did not mean to do so. Most of the faculty members and graduate students in the Department of Dental Biomaterials were of foreign origin. It is found that the evidence is insufficient to show that the Dean's action with respect to Petitioner was based on any bias or discrimination against him because of his foreign origin. (Testimony of Allen, Petitioner, Exhibits 7, 26 (Deposition of Allen), 27 (Deposition of Petitioner), 28 (Deposition of Smith), 29 (Deposition of Wickwire), 30 (Deposition of Mahan), 31 (Deposition of Colaizze), 32 (Deposition of Lundeen))
The Issue Whether Respondent violated the Florida Civil Rights Act of 1992, as alleged in the Amended Charge of Discrimination filed by Petitioner on April 8, 1997.
Findings Of Fact 1. At all times material hereto, Petitioner was employed by Respondent, Clerk of Court, Duval County. She was a Clerical Support Aide II until her promotion to Court Records Aide in 1996. Her duties in both positions involved administrative support clerical work, which included cashier functions. 2. The quality of Petitioner's work is not at issue, as Petitioner received satisfactory and above satisfactory evaluations while employed by Respondent. 3. In 1996, Petitioner was under the supervision of Janice Sain in the Traffic Department. Ms. Sain held the position of Assistant to the Clerk. Her responsibilities included overseeing the traffic violations bureau, purchasing department, and the tax deeds department. At the time, Petitioner was assigned to Courtroom 51 which handles first appearances for traffic-related cases, accidents, and misdemeanors. Break Room Incident 4. Employees such as Petitioner would report to work by faxing a daily sign-in sheet each morning showing that the employee was on duty. It was in this manner that Ms. Sain would keep track of whether employees had reported to work from the various branch locations around the city. If an employee was unable to communicate by facsimile, the employee would call in to report that they were at work. 5. On or about November 22, 1996, Petitioner's immediate supervisor, Wanda Myers,’ advised Petitioner that she had not received Petitioner's daily sign-in time sheet. She repeatedly questioned Petitioner regarding the time sheet. Petitioner became nervous and returned to her desk in the cashiering area. Petitioner began shaking and gasping for breath. Petitioner was instructed by Ms. Myers to go into the employees' break room.’ 6. Petitioner believes that a sign which read, "Out of Order" was placed on the outside door of the break room while she was in there. However, there was no evidence presented at hearing to support that belief. The witnesses who were at work that day did not recall seeing a sign on the door. 7. Petitioner filled out a leave request form for sick leave from 3:00 p.m. until 4:30 p.m. Ms. Myers denied that request writing in the comments section, "Denied-told her Janice Sain on way to office to speak with her and told her she could not leave." 8. Ms. Sain was called by Wanda Myers who requested that Sain come to the Traffic Department ("Traffic") as soon as possible to counsel Petitioner. Ms. Sain went to Traffic and spoke to Petitioner. Petitioner filled out another leave slip that afternoon for sick leave from 4:00 p.m. until 4:30 p.m. which was approved by Janice Sain. Ms. Sain wrote in the comment section, "Jarrilyn used her break and went home upset at 3:40." 9. Petitioner called her fiancé, Edward Davis, who met her at her job. Petitioner drove herself home and Mr. Davis followed her. 10. Petitioner later submitted an amended leave request form for the same date and time period but requesting that the leave be designated as worker's compensation. This leave was disapproved as Petitioner's worker's compensation claim was denied and she, therefore, was not entitled to worker's compensation leave. Respondent does not have the authority to approve worker's compensation leave without notification from the worker's compensation office that the claim had been approved. 11. Petitioner sought medical attention on November 25, 1996, three days after the break room incident. The doctor who saw Petitioner wrote a note excusing her from one day's work: "Jarrelyn [sic] is to be excused from work for a period of 1 day and may resume work as of Wed Nov 27, 1996." Petitioner returned to the doctor again on November 27, and December 4, 1996. No documentation was presented as to Petitioner's ability or inability to work as a result of those doctors' appointments. 12. There was no evidence presented that Petitioner was denied sick leave when requested, with the exception of waiting 40 minutes on November 22, 1996. Transfer to University Boulevard Branch Office 13. Petitioner's promotion to Court Records Aide was effective December 9, 1996. On approximately the same date, another employee, Mary Carter, had an accident and broke her back. Ms. Carter had previously been assigned to the Beaches Branch satellite office. Ms. Carter's medical absence led toa rotation of the cashier staff to provide adequate staffing in the various branch offices. Petitioner was transferred to the University Boulevard branch office as a result of this rotation of staff following Ms. Carter's accident and subsequent medical absence. 14. It is common for cashiers employed by Respondent to have varying work locations over a period of time. Assignments for cashiers were subject to change. Respondent tries to provide three to seven days notice to employees on permanent location changes. 15. Respondent's branch offices are physically located within the county Tax Collector's branch offices. Branch offices are also known as satellite offices. The University Center branch office has only one employee (cashier) of Respondent. 16. Petitioner did not provide Respondent with any documentation suggesting that she had medical restrictions relating to her employment duties prior to her transfer to the University Boulevard branch. Lunch Hour at Branch Offices 17. The branch or satellite offices were operated in 1996 from 8:00 a.m. to 5:00 p.m. Employees of Respondent assigned to these branch offices, at that time, did not have a designated lunch period. The times that employees were able to take breaks were determined by the public. That is, sometimes lines of people waiting for assistance would be long. At other times which were less busy, employees took their breaks. Employees at branch offices frequently worked through lunch (as lunchtime was a typical time when the public would come in) and the employees would be paid overtime.* Employees would be given signs to place in their cashier windows for temporary breaks. 18. If an employee had an appointment or needed a designated time period away from the satellite office, Respondent requested that the employee provide advance notice in an effort to facilitate securing a staffing relief. Lorraine Thomas, who is currently a Court Records Aide Senior, would provide lunch relief on occasion to the satellite offices. Ms. Thomas would also provide relief when a clerk was out sick, if the employee's children were sick, or if an employee had doctor's appointments or other personal business. In the case of an emergency, cashiers at the branch office would need to call Traffic for relief. Ms. Sain would often transport employees in an effort to ensure coverage at the branch offices. Despite these efforts, there were times that a branch office would be closed due to being understaffed. 19. At the time of Petitioner's transfer to the University Boulevard office, none of the medical documentation provided by Petitioner to Respondent indicated that Petitioner had medical restrictions regarding her employment. 20. After being advised of the transfer to University Boulevard, Petitioner put in a transfer request dated December 11, 1996. The transfer request was submitted to Gwendolyn Loadholtz, Director of Human Resources. The transfer request states her reason for a transfer was to learn something new. Petitioner also put a check mark next to the word "other" but did not add any further explanation in the space provided. Petitioner did not state any medical reason for the transfer request. 21. Petitioner's doctor signed an Excused Absence from Work form dated December 12, 1996, stating that Petitioner should be excused from work from December 16, 1996, through December 20, 1996. 22. Petitioner's doctor completed a Medically Excused Absence form which stated that Petitioner was under the doctor's care for anxiety and depression, and "it is recommended that she be allowed a daily lunch break." The date of this form is not entirely clear but appears to be January 2, 1997. According to Petitioner, her doctor's office faxed this form to Respondent. Respondent, however, has no record of receiving it. Ms. Loadholtz, Director of Human Resources, testified that she did not receive it and that it was not in Petitioner's personnel file. Ms. Wanda Myers’ last day of employment was January 3, 1997, and there is nothing in the record to indicate whether or not Myers received the doctor's note. In any event, Petitioner wrote a hand-written letter dated January 3, 1997, to "Traffic Management" complaining that she was not getting a lunch hour. 23. Petitioner was treated in the same manner as other employees at the branch offices of Respondent regarding lunch breaks. Petitioner was not the only branch employee without a designated lunch break. 24. On or about January 6, 1997, Petitioner filed a grievance, through her union steward, regarding the lunch break issue. The grievance was resolved in Petitioner's favor. Thereafter, branch employees were afforded a lunch break if they wanted one. 25. Petitioner worked at the University Boulevard branch from December 16, 1996, until January 21, 1997, when her transfer request was granted and she was moved to Misdemeanor "A". Transfer to Misdemeanor "A" 26. Petitioner's doctor wrote a letter dated January 20, 1997, which stated in pertinent part: This is to state that the above named patient has been under my care. She has been diagnosed to have an anxiety disorder that at the present time is exacerbated by the stimulation of having to deal with the public in her place of work. It would be to this individual's advantage, as far as recovering from her present condition, to be placed temporarily in a position in which she would not have to be dealing directly with the public. 27. Petitioner's request for transfer was granted after Respondent received this January 20, 1997, letter from Petitioner's doctor. She was transferred to the Misdemeanor "A" Department effective January 21, 1997. That Department consisted of cashiering, as well as processing violation of probation cases, worthless checks, and processing the Salvation Army payments. Maxine Russell, Senior court Records Clerk, was her supervisor at Misdemeanor "A". Ms. Russell had no knowledge of 10 Petitioner's having a serious medical condition and did not regard her as having a disability. When Ms. Russell became aware of the January 20, 1997, doctor's letter regarding Petitioner, she assigned Petitioner to work at a desk processing payments with minimal contact with the public. 28. Ms. Russell held an initial conference with Petitioner on January 30, 1997, to go over her duties. In a written chronology that Russell maintained during that time period,’ a notation was made on January 21, 1997, that Petitioner volunteered her assistance in helping on the counter and cashiering when necessary. Petitioner's testimony denied that she volunteered but acknowledged that she did on occasion work at the counter when requested. 29. Petitioner received a mid-probation evaluation on or about March 5, 1997, and received a satisfactory rating in every category on the evaluation sheet. 30. Since the January 20, 1997, doctor's letter referenced the desirability for Petitioner to be placed in a non-public job setting, Russell requested an updated doctor's statement regarding her need for continued accommodation. This request was made on or around March 18, 1997. Russell needed the statement to keep Petitioner in a non-public setting since most of the employees' duties involved contact with the public. Russell did not receive an updated doctor's statement regarding Petitioner's need for further accommodation. 11 31. Petitioner complained about her new assignment and felt it was not adequately addressing her medical needs. On or about April 7, 1997, Russell moved Petitioner to yet another desk. Her new duties included processing probation violations which did not involve working with the public, and answering phones during breaks and lunch times. Periodically, Petitioner would have to deal with probation officers, but not members of the public. 32. Petitioner had a doctor's appointment on April 2, 1997. She returned with a Medically Excused Absence form which stated that Petitioner was under the doctor's care for counseling "from 4/2/97 to se" + with nothing written in the blank. As April 2, 1997, was the only date referenced on this form, the form was simply an excuse from work for that date only. Petitioner's leave record shows she took one and one-half hours of sick leave that day. The form was silent as to any continuing work conditions that were necessary or even recommended for Petitioner. 33. Petitioner received a satisfactory performance evaluation on August 5, 1997. 34. Petitioner's leave record reveals that she frequently was granted sick leave and was also granted leave without pay when her leave was exhausted. She was not disciplined for excessive leave nor is there any suggestion in the record that Respondent accused Petitioner of abusing her leave. 12 35. Other than the January 20, 1997, letter stating that it would be to Petitioner's individual advantage to be placed temporarily in a position in which she would not have to be dealing with the public, there is nothing in the record to support anything more than a temporary placement of Petitioner in a position not dealing with the public.
Conclusions For Petitioner: Jarrilyn D. Black, pro se 8030 Old Kings Road, South Number 49 Jacksonville, Florida 32217 For Respondent: LaShanda R. Dawkins, Esquire 117 West Duval Street Suite 480 Jacksonville, Florida 32202
Recommendation Based upon the findings of fact and conclusions of law, it is RECOMMENDED : That the Florida Commission on Human Relations enter a final order dismissing Petitioner's Amended Charge of Discrimination. DONE AND ENTERED this 13" aay of July, 2001, in Tallahassee, Leon County, Florida. Ait Bidsex \, dis oe f pos Adhinistrat 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 /3%> day of July, 2001. 17
Findings Of Fact At all material times, Respondent was a career-service employee of Respondent. She served as a health service representative assigned to the Seminole County Public Health Unit. Her specific task was to investigate and follow up on contacts for sexually transmitted diseases. Petitioner's Employee Handbook, which Respondent received when she was hired, states: You may request annual leave for any purpose desired, but you must obtain Your supervisor's approval before taking annual leave. If an emergency develops, tell your supervisor of the emergency and ask for verbal approval to use annual leave. When you return to work, complete the leave request form for your supervisor's signature. The Handbook also Provides that certain employees are entitled to one eight-hour personal holiday "at a time which is mutually agreeable to the individual and the immediate supervisor." The local policy of the Seminole County Public Health Unit required each employee to request leave by filling out the back of a timesheet. In this manner, the employee would show the type of leave requested, the date and time of the leave, the employee's initials. The form provided spaces for the signature of the supervisor and the date described in detail in the Paragraph 5 below. The back of the timesheet states: "All Leave and Overtime must be requested and approved in advance." The Handbook requires advance approval of annual leave. Although the blanket statement on the back of the timesheet requires advance approval of all leave and overtime, the Seminole County Public Health Unit routinely did not require advance approval for all types of leave. For instance, sick leave, overtime, and annual leave for less than a few hours were normally approved after the fact. On at least two occasions, including one involving Respondent, annual leave for an entire day was also approved after it had beef taken. However, the Seminole County Public Health Unit normally requires advance approval of annual leave for a Period of one day or more. The instructions on the timesheet direct that the date next to the supervisor's signature indicate the date of the request for leave. Consistent with the varying policies governing leave, the date beside the supervisor's signature on the timesheet was used to show the date of approval of a request for annual leave and the date of the request for sick leave and certain other types of leave. By negative implication, the Handbook also requires written approval of annual leave for nonemergencies because it expressly permits "verbal approval" for annual leave for emergencies. There are no requirements in the Handbook or the timesheets for written approval of requests for other forms of leave, and the Seminole County Public Health Unit did not maintain enforceable policies to that effect. Two persons were authorized to approve requests of Respondent for annual leave. The first person was Charlotte Blades, who was the coordinator of the sexually transmitted disease program of the Seminole County Public Health Unit. Ms. Blades was Respondent's immediate supervisor The other person authorized to approve requests for annual leave was Bernice Duncan, who was the senior community health nurse of the Seminole County Public Health Unit and Ms. Blades' supervisor. In practice, the written approval of Ms. Blades could be revoked by Ms. Duncan. On one occasion, Respondent requested eight hours' annual leave to attend her son's high school graduation on June 9, 1989. Ms. Blades signed the timesheet on May 23, 1989. Between that date and the date of the leave, Ms. Duncan told Respondent that, although Ms. Blades had signed the timesheet, the leave was not approved. Ultimately, Respondent received approval for leave through 2:30 p.m., rather than 5:00 p.m., on the day of the graduation. In late July or early August, 1989, Respondent submitted a timesheet requesting 32 hours' annual leave from August 28-31, 1989. About one week later, before Ms. Blades or Ms. Duncan had acted on the request, Respondent changed the request to September 1, which was the Friday before Labor Day weekend, and September 13-14, 1989. In addition, she requested leave with pay for September 15, 1989, as her personal holiday. According to the timesheets, Ms. Blades approved the September 1 leave request on August 25, 1989, which was a Saturday. She assured Respondent that she would discuss with Ms. Duncan the remaining requests for leave. Respondent followed up with Ms. Blades several times, explaining that she wanted the leave to attend her son's graduation ceremonies from military basic training in South Carolina. Despite her assurances, Ms. Blades had not mentioned Respondent's request to Ms. Duncan before Ms. Blades became sick and missed work from September 6-9. On the second day of Ms. Blades' absence, Respondent took her request to Ms. Duncan, who said that she had not been aware of Respondent's request. Ms. Duncan told Respondent that Ms. Blades was on sick leave and did not respond further. The following day, Respondent spoke again with Ms. Duncan, who this time assured her that if Ms. Blades were not at work on Monday, September 11, Ms. Duncan would sign the timesheet approving the leave requested for September 13-15. Ms. Blades returned to work on Monday, September 11. When Respondent asked her in the morning to sign the timesheet, Ms. Blades refused to do so and told her that it had not yet been approved. Consistent with her prior conversations with Respondent, though, Ms. Blades did not say that the request had been disapproved. Respondent then left the office for much of the day. When she returned, Ms. Blades and Ms. Duncan were both out. The next day, Tuesday, September 12, Ms. Blades spoke with Respondent, but still declined to say whether the request was approved or rejected. She continued to say merely that the request had not yet been approved. Tuesday afternoon, Respondent told a coworker to tell Ms. Blades that Respondent was going to South Carolina and would be back the following Monday morning. While still in town, Respondent telephoned both supervisors shortly after 8:00 a.m. on Wednesday, but they had not arrived at work yet. Respondent asked the receptionist to remind Ms. Blades that Respondent had gone to South Carolina and would return the following Monday morning. Both messages were delivered to Ms. Blades, who relayed them to Ms. Duncan. Respondent then departed for South Carolina, where she remained through at least September 15. At the time of her departure, Respondent knew that her request for annual leave had not been approved and that she was taking unauthorized annual leave. When she arrived back in the office on September 18, Respondent received a copy of a letter dated September 15 that had been mailed to her the prior Friday. The letter states that Respondent had been separated from State service for abandonment of position, effective at the close of business on September 15, 1989. The second paragraph of the letter contains material misstatements of fact. It states that Respondent had been advised that, due to the present work situation, her leave could not be approved. The letter also states that she did not contact her supervisor that she would be absent. No one ever advised Respondent that her leave could not be approved or in fact was rejected until after her return from South Carolina. Also, Respondent informed both supervisors, directly and through third parties, that she would be absent, where she was going, why, and when she would return. However, she did not contact them during the three-day absence. Concerning the request for leave for a personal holiday, neither Ms. Blades nor Ms. Duncan ever informed Respondent that the date was inconvenient. Under the circumstances, Respondent could reasonably infer that the date was agreeable with Ms. Blades. At no time did Respondent intend to abandon her career-service position. The facts do not support a reasonable inference that Respondent abandoned her job during the three days in question.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of Administration enter a Final Order finding that Respondent has not abandoned her position in Career Service employment with the State of Florida. ENTERED this 28th day of February, 1990, in Tallahassee, Florida. ROBERT D. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of February, 1990. COPIES FURNISHED: Linda L. Parkinson Attorney Department of Health and Rehabilitative Services 400 West Robinson Street, Suite 701 Orlando, FL 32801 Aletta Shutes, Secretary Department of Administration 435 Carlton Building Tallahassee, FL 32399-1550 Augustus D. Aikens, Jr. General Counsel Department of Administration 435 Carlton Building Tallahassee, FL 32399-1550 Gregory L. Coler Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700 Alva J. Barfield 1010 Locust Avenue Sanford, FL 32771
The Issue Whether the employment of Respondent, a school teacher, should be terminated based on the allegations of job abandonment and/or insubordination set forth in the More Definite Statement of Charges filed December 15, 2005.
Findings Of Fact Petitioner has employed Respondent as a school teacher since the school year 1998-99. Respondent’s assigned school has been Nova Middle School (Nova) since the 2000-01 school year. At all times relevant to this proceeding, Petitioner was certified to teach in the designated field of "elementary education." That certification permitted Respondent to teach kindergarten through sixth grade. At all times relevant to this proceeding, Respondent’s employment was subject to the provisions of the collective bargaining agreement (CBA) between Petitioner and the Broward Teachers Union (BTU). At all times material hereto, Petitioner was a duly constituted school board charged with the duty to operate, control and supervise all public schools within the school district of Broward County, Florida, pursuant to Article IX, Constitution of the State of Florida, and Section 230.03, Florida Statutes. Dr. Ricardo Garcia was the principal of Nova for the 2004-05 and 2005-06 school years. During the 2004-05 school year, Respondent began to perceive that he was having problems with Dr. Garcia1. August 2, 2005, was the first day of the 2005-06 school year for teachers. August 2-5 were teacher planning days with the following Monday (August 8) being the first day of the school year for students. Teachers who will not be at work on a particular school day are instructed to call in to the school office or to a computerized service (called Sub Central) so that the school can take appropriate action to prepare for the teacher's absence, such as obtaining a substitute teacher. Respondent did not report for work at any time during the 2005-06 school year. On August 5, 2005, Mr. Garcia wrote to Respondent the following letter2 that accurately states the facts recited therein: The first day to report to work for the 2005-2006 school year was August 2, 2005 at 8:00 a.m. At 5:12 a.m. on August 2nd you called in sick to Sub Central. On August 3rd, you called in sick to Sub Central at 6:39 a.m., and on August 4th, you called in sick to Sub Central at 7:35 a.m. Today, Friday, August 5th after my office manager checked the Sub Central database, I was informed that you did not call in today, and you also did not report for work. If you are aware that you will be absent for additional days, please inform my office at your earliest. If you need to request a medical leave, contact the Leaves Department to assist you in this matter. Because I have not received any communication from you for your absence today, disciplinary action will be taken if I do not hear from you by August 10th, 2005. The letter of August 5, 2005, was mailed by certified mail and received by Respondent. The address used for all correspondence between Dr. Garcia and Respondent was to the address Respondent had on file with Nova, which was also the address Respondent gave out to the public. That address was to a residence in Boca Raton. An acquaintance of the Respondent lived at that Boca Raton residence. That acquaintance would typically call Respondent when mail came to the Boca Raton address for Respondent. Respondent actually lived at an address in Fort Lauderdale. Respondent used this unusual arrangement for all of his mail, not just mail dealing with school matters. In response to the August 5 letter, Respondent called the principal's office at Nova on August 8 and spoke to a staff person.3 During that conversation, Respondent represented to the staff person that he wanted a leave of absence and that he would file the requisite paperwork by August 10, 2005. On August 8, 2005, Respondent went to Petitioner's Leaves Department and picked up a packet that contained blank leave application forms. The packet also contained a form for his treating physician to fill out. Also on August 8, 2005, Respondent went to Dr. Myers' office and asked him to complete the medical form. Dr. Myers complied with that request the same day. Respondent called to report his intended absence for each workday during the week August 8-12, 2005. Respondent placed the various calls to either Sub Central or Nova. On August 15, 2005, Respondent called Nova and spoke to Ms. Daniel, who worked as a bookkeeper. Prior to that call, Dr. Garcia had instructed his staff that he wanted to talk with Respondent. He further instructed the staff that he wanted Respondent to talk to Ms. Morales if he was not available. When Respondent called on August 15, Ms. Daniel asked Respondent to speak with Dr. Garcia or Ms. Morales. Respondent thought it unnecessary to speak to either Dr. Garcia or Ms. Morales and declined to do so. Respondent’s last day of accrued sick leave expired on August 18. On August 18, 2005, Dr. Garcia wrote Respondent a second letter which was mailed by certified mail to the same address as the August 5 letter. That letter was not received by Respondent prior to the institution of these proceedings. The August 18 letter was as follows: This is a follow-up to my letter dated August 5, 2005. As of today's date, you have not reported to work for the 2005-2006 school year. You called Nova Middle School on August 8th after receipt of the August 5 letter and spoke to Mrs. Morales, Office Manager. You stated to her that you would submit appropriate paperwork to request a leave of absence no later than Wednesday, August 10th. I did not receive any paperwork or any physician's note either by August 10th to date. On Monday, August 15th, you called the front office of Nova Middle School and notified Mrs. Daniels, Bookkeeper, that you wanted to take an unpaid sick leave until Wednesday, August 17th. Mrs. Daniels referred you to talk to Mrs. Morales or me, and you declined to do so. Please be advised that you have the right to use any paid leave for sick purposes before a leave of absence takes effect, according to the Collective Bargaining Agreement, Article 23(S)(9). Because you have failed to inform my office in writing of any medical illness that is supported by a licensed physician and you have not provided, to date, any request for an unpaid medical leave of absence, I must move forward with this matter to ensure that the students of Nova Middle School are not further adversely impacted by your absence in the classroom. As a result, I am requesting that you notify my office, in writing, no later than Tuesday, August 23, 2005, of your return to work date. In addition, I am requesting that you send by mail documentation from a licensed physician to support your illness since August 2, 2005. If I do not receive your response by the date as mentioned above, I must recommend that the School Board consider you for termination due to job abandonment. Please govern yourself accordingly. On August 19, 2005, Respondent’s two leave applications simultaneously reached Dr. Garcia’s office through Petitioner’s internal mail service called the Pony System. Respondent deposited the applications in the Pony System at another school on or about August 17 and it took approximately two days for the applications to reach Dr. Garcia. The first leave application to be discussed is Respondent’s application for leave pursuant to the Family Leave/Medical Leave Act (FMLA). Under defined circumstances, including his own illness, Respondent was entitled to up to 60 days of FMLA leave with his position assured upon the expiration of his leave. Respondent stated on his application that the reason for the FMLA leave was for his illness, which he described as “work-related stress, anxiety . . .”. Respondent requested a total of 60 days of FMLA leave beginning August 2 and ending October 27. The FLMA leave form contained the following direction: All requests for medical leave due to your illness or the illness of a family member must include the completed attached “Certification of Health Care Provider” form[4]. The FMLA also contained a routing instruction directing the school to forward the application and the medical certification to the Leaves Department. Respondent did not attach the completed Certification of Health Care Provider form or any other medical documentation to his FMLA leave application. Respondent’s FMLA leave application was incomplete without the Certification of Health Care Provider or other suitable medical documentation. Respondent knew or should have known that the application for FMLA leave was incomplete without appropriate medical documentation. Respondent’s second application was for a Board Approved Personal Leave of Absence (BAPLA). The reason given for the request was also “work-related stress, anxiety ...” Pursuant to the terms of the CBA between Petitioner and BTU, Respondent had the right to go on an unpaid leave of absence for personal reasons of up to two years' duration. His teaching position would not be assured upon the expiration of that leave, but he could be rehired, depending upon job openings. Respondent’s BAPLA application was incomplete because Respondent did not fill out the part of the form identifying the start date of the requested leave. The form contained the following, which Respondent left blank following the word “on”: I wish to request a leave of absence for the 2005-06 school year effective at the close of work on: 5 Dr. Garcia routed the two applications to the Leaves Department the same day he received them (August 19). On August 30, 2005, Dr. Garcia wrote a letter to Respondent and mailed it to the Boca Raton address. Respondent did not receive Dr. Garcia’s letter of August 30, 2005, prior to the institution of these proceedings. Dr. Garcia advised Respondent that medical documentation was necessary for FMLA leave and set a deadline of September 6, 2005, for Respondent to submit that documentation. Dr. Garcia incorrectly advised Respondent as to the availability of BAPLA6. Debra Knaub, an employee of the Leaves Department, processed Respondent’s applications after receiving them from Dr. Garcia. Ms. Knaub could not process the FMLA leave application because of the missing medical documentation. After she received Respondent’s two applications from Dr. Garcia, Ms. Knaub called on at least two occasions the telephone number that Respondent had provided. The telephone number was to Respondent’s cell phone. On each occasion, Ms. Knaub left Respondent a voice message requesting that Respondent return her call. Ms. Knaub was attempting to obtain Respondent’s medical documentation so she could process his FMLA leave application. Respondent did not respond to these voice messages. After the Leaves Department received and reviewed Respondent’s two leave applications, Marjorie Fletcher, Ms Knaub’s supervisor, prepared a form letter, dated September 7, 2005, that notified Respondent that the FMLA leaves application lacked a signed Certification of Health Care Provider form. This form letter also contained the following: Please respond by September 12, 2005 or you will be placed on Board Approved Personal Leave where your position is no longer guaranteed. After learning from Ms. Knaub that Dr. Garcia had established in his letter of August 30, 2005, a deadline of September 6, 2005, for Respondent to furnish the signed Certification of Health Care Provider form, Ms. Fletcher decided not to send to Respondent her letter of September 7. Ms. Knaub did not process Respondent’s application for BAPLA because she learned that Dr. Garcia had recommended that Respondent’s employment be terminated. Petitioner advised Respondent of the following by certified letter dated September 12, 2005, signed by Receca A. Brito, Director of Instructional Staffing: This is to inform you that your name will be submitted to the Broward County School Board on September 20, 2005, with a recommendation for termination of your employment. If you have any questions, please contact Instructional Staffing Department . . . . After Respondent exhausted his last day of authorized leave on August 18, 2005, he was absent from school without authorized leave for more than three consecutive workdays. Respondent left Broward County for approximately three weeks beginning August 25, 2005. When he returned, he received Ms. Brito’s certified letter. The School Board voted on September 20, 2005, to accept Dr. Garcia’s recommendation that Respondent’s employment be terminated. Petitioner has adopted disciplinary guidelines applicable to this proceeding which provide for progressive discipline. Those guidelines were introduced into evidence as Petitioner’s Exhibit 56 and are adopted by reference. Petitioner established that Respondent’s failure to adhere to Petitioner’s leave policies despite repeated efforts to communicate with him had a detrimental impact on the education process.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that Petitioner enter a final order adopting the findings of fact and conclusions of law set forth herein. It is further recommended that Petitioner terminate Respondent’s employment without prejudice to his right to seek re-employment. It is further recommended that Petitioner find Respondent not guilty of insubordination. DONE AND ENTERED this 10th day of August, 2006, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON 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 10th day of August, 2006.
