Findings Of Fact Immediately prior to the hearing the parties submitted a stipulation as to a portion of the facts as follows: The parties hereby agree that the follow- ing facts are true for the purposes of this proceeding: Petitioner is licensed to practice Psychology in the State of Illinois, holding License No. 72-604. The date of issuance of his license was 8 March 1965. Petitioner's application for licen- sure contained all information necessary for respondent to make a determination as to his entitlement for licensure. On 15 April 1978 respondent denied petitioner's application on the grounds that he did not have a doctoral degree in Psycho- logy and that the standards for licensure in the State of Illinois were not at least equal to the standards for licensure in the State of Florida. On 21 October 1978 respondent denied petitioner's application for licensure on the grounds that his degree was not from an Ameri- can Psychological Association approved program nor from a program that was equivalent thereto. On 15 April 1978 respondent approved an application for licensure under special con- ditions on behalf of Dr. Thomas A. Guest, based upon his licensure in the State of Illinois. On 18 October 1977 respondent approved an application for licensure under special con- ditions on behalf of Dr. Lois M. Mueller, based upon Dr. Mueller's licensure in the State of Illinois. Petitioner complies with the require- ment contained in s. 490.19(1)(a), Florida Statutes, for good moral character. Petitioner complies with the require- ment of s. 490.19(1)(b), Florida Statutes, in that he conforms to the ethical standards of the profession as adopted by the Board. Petitioner received his license in Illinois by virtue of a grandfather clause con- tained in that act. Petitioner has never taken the exami- nation referred to in respondent's rules as the PES exam. Petitioner does not meet the requir- ments of Rule 21U-2.05(1)(a)1, being a requirement for 90 hours of graduate study. Petitioner does not have a doctoral degree in Psychology from a program approved by the American Psychological Association. It was further stipulated that Petitioner's Exhibits 1 through 9, attached to the foregoing Stipulation as documentation, would not be objected to on grounds of authenticity, and that the depositions of Dr. Robert Zellar and Dr. Albert Ellis would be taken by deposition and the record closed only after receipt by the Hearing Officer of said depositions. Both depositions have been received by the Hearing Officer. Petitioner, a resident of Springfield, Illinois, and a licensed psychologist in Illinois since 1965, requested an administrative hearing after the second denial by the Respondent Board of his application for licensure as a psychologist in the State of Florida. Petitioner also requested a hearing on whether he would be eligible to take the Florida psychology examination. This issue has not been determined by the Respondent Board, but no objection was raised as to having said issue determined at this administrative hearing. After Respondent Board denied the application of Petitioner for licensure in April of 1978, Petitioner obtained an Ed.D. degree in human services and reapplied to Respondent for licensure in October, 1978. He was again denied licensure. The Respondent Board denied both applications for licensure by the Petitioner on the grounds that he failed to meet the educational requirements of Florida. The finding of the Respondent was based on: Petitioner's degree does not have a major in psychology from an accredited university. Petitioner's degree does not have a major in psychology from a university maintaining a standard of training comparable to an American Psychological Association accredited university due to the fact that: Petitioner received an Ed.D in Higher Education not a Ph.D in psychology. Petitioner has only two (2) semesters of full-time study, and those were predomi- nantly of a practical nature. A comparable program requires at least two (2) years (four [4]) semesters of full-time study or ninety (90) semester hours; sixty (60) of those should be designed as preparation for the professional practice of psychology, of which at least forty-two (42) shall be in any five basic areas as detailed in Chapter 21U-2.05(2)(a)(2), F.A.C. Respondent Board refused Petitioner a license only after an individual appraisal of the program cited by the Petitioner in his application. Petitioner Gullo holds a Masters degree in clinical psychology from Bradley University in Peoria, Illinois, awarded in 1964. Bradley University does not have an American Psychological Association approved program in psychology. The Petitioner was licensed to practice psychology in 1965, under Illinois Statute, Title 91 1/2 Section 411(a). His licensure was granted under the grandfather clause of that statute, which permitted licensure of those holding a Masters degree on the effective date of the statute. The statute increased the requirements to a doctorate degree thereafter. Petitioner has practiced as a psychologist or taught in Illinois at various institutions since shortly after his licensure, and has been employed in his own clinic since receiving his degree from the University of Sarasota in 1975. Petitioner was awarded an Ed.D. degree in 1975, from the University of Sarasota in Sarasota, Florida, with a major in human relations, while he was practicing psychology in Illinois. The University of Sarasota does not have an American Psychological Association approved program in psychology. One of the reasons the Petitioner chose to obtain a degree from the University of Sarasota was so that he could continue to work in Illinois while fulfilling the school's requirements. Most of the work for his degree was done off campus in a directed research and seminar type of study. Actual campus study consisted of a few weeks' instruction. The University of Sarasota is a "non-traditional" university. Such "non-traditional" universities are held to be not acceptable to provide required professional training by the American Psychological Association. The students use their home libraries or use university libraries near their respective homes for the remainder of their work. The University of Sarasota offers the Ed.D. (doctorate of education) degree, the M.A. (master of arts in education) degree, and the M.Ed. (master of education) degree. Since the time Petitioner Gullo received his degree in 1975, the required hours for the doctorate degree in education have been increased to 90 hours. The University does not have a program in psychology, and no studies in basic psychology are taught there. There are no full-time teachers, and the students are nation-wide residents. Class work is accomplished during two (2) to four (4) weeks during the summer. The University of Sarasota has not been accredited by any accrediting organization, although it has been licensed by the Florida State Board of Independent Colleges. The American Psychological Association has never approved a "non-traditional" type of university. Petitioner Gullo has 74 hours of graduate study and 27 hours of basic psychology. Petitioner has not had one year of supervised experience since receiving his doctorate, but has been working in his own clinic. Petitioner has never taken the Professional Education Service examination. Dr. Robert H. Zellar, a professor of human development counseling and professor of humanities at Southern Illinois School of Medicine, directed Petitioner Gullo's doctoral study. This study was done in "rational emotive psychoterapy." The degree was in human services, which is a broad generic term, rather than the strict academic specialization required for a degree in psychology. Dr. Zellar found Dr. Gullo competent to teach emotive psychotherapy on two occasions at the university at which Dr. Zellar was employed. Dr. Albert Ellis, a psychologist and psychotherapist, and Executive Director of the Institute for Rational Emotive Therapy in New York, New York, has known the Petitioner since 1963, or 1964. He has observed Dr. Gullo in clinical situations six (6) or seven (7) times. Each of those times he observed Dr. Gullo in clinical situations in all-day workshop situations. Those workshops observed by Dr. Ellis were during the period 1964, to 1976, or 1977. It was Dr. Ellis' opinion that Dr. Gullo is a "very competent psychologist and psychotherapist." Dr. John W. French, Dean of Education at the University of Sarasota, and the director of Petitioner's doctoral program, stated that in his opinion any student should be allowed to take a test to show what he knows regardless of his educational background. In reference to the library at the University of Sarasota, Dr. French stated that it is a "specialty" library, and its specialty is to get students started on dissertations. Primarily, the library is useful in aiding each student to work up a bibliography. Prior to the arrival of Dr. French in 1976, the assignment of students to dissertation advisors and the assignment of dissertations to readers was based more on whether a member of the faculty had recently received and read a number of dissertations, and whether it was that person's turn to get another dissertation rather than upon the expertise of the faculty member. A schedule of fees paid to the faculty for services include: $40.00 for each dissertation read and critiqued; $10.00 for each dissertation proposal read and critiqued; and $50.00 per half-day teaching in Sarasota. Dr. Thomas A. Guest and Dr. Lois M. Mueller were approved for licensure under special conditions by the Respondent Board after it examined the applications submitted by the applicants and found that they had each been licensed by the State of Illinois pursuant to that state's current laws which require, among other things, a doctorate degree in psychology. Both parties submitted proposed findings of fact, memoranda of law and proposed recommended orders. These instruments were considered in the writing of this Order. To the extent the proposed findings of fact have not been adopted in, or are inconsistent with, factual findings in this Order they have been specifically rejected as being irrelevant or not having been supported by the evidence.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended: The application of John Gullo for licensure as a psychologist in the State of Florida be denied. The application of John Gullo to take the examination for licensure as a psychologist in Florida be denied. DONE and ORDERED this 28th day of June, 1979, in Tallahassee, Leon County, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Michael E. Egan, Esquire 217 South Adams Street Post Office Box 1386 Tallahassee, Florida 32302 John J. Rimes, III, Esquire Legal Affairs Section The Capitol Tallahassee, Florida 32301
The Issue The issue in this case is whether the University of Florida acted inappropriately in determining that Dr. Nancy Norvell's performance as an Assistant Professor was insufficient to meet the criteria for tenure and promotion.
Findings Of Fact The College of Health Related Professions of the University of Florida consists of nine departments, including the Department of Clinical and Health Psychology. Dr. Richard R. Gutekunst is dean of the college. Dr. Nathan W. Perry is chairman of the referenced department. Students in the Department of Clinical and Health Psychology are graduate level students pursuing advanced degrees in the study of abnormal behavior. The department operates a clinic which provides counseling services to appropriate individuals and is utilized as an instructional tool. Clinical instructors supervise student clinicians providing treatment to patients. Such students include graduate students from within the department and interns from outside the University. In April, 1984, Dr. Nancy K. Norvell was, by letter from Dr. Perry, offered employment as an Assistant Professor in the Department of Clinical and Health Psychology. Dr. Norvell accepted the offer and was hired, effective July 20, 1984. According to Dr. Perry's letter of April 16, 1984, Dr. Norvell's duties were "clinical teaching, research and assigned clinical responsibilities on the Adult Consult and Liaison Service and in the general Adult Clinic." Dr. Perry also advised that she would teach the Adult Psychopathology course during the Fall `84 semester. The April 16 letter stated that Dr. Norvell would be evaluated at least once annually in terms of performance of assigned duties and responsibilities. The letter advised that such evaluations were considered in recommendation and final decisions on tenure, promotions and salary. The letter stated that "[t]he criteria for promotion or for the granting of tenure shall be relevant to the performance of the work which the faculty member has been employed to do and to his performance of the duties and responsibilities as a member of the University committee." The letter also outlined the criteria relevant to the granting of tenure, identified as "broad categories of academic service" including instruction, research, and service. As identified in the, letter of April 16, "instruction" includes regular classroom teaching, direction of thesis and dissertations, academic advisement, extension activities, and all preparations for this work including continuing education. "Research" includes publications and other "creative" activities. "Service" includes public, professional, and University activities. Each semester, faculty members of the Department of Clinical and Health Psychology are assigned teaching, research, and service duties, expressed as percentages of employment responsibilities. Such assignments are communicated by memo to the individual faculty members. Dr. Norvell was aware of her assigned responsibilities each semester. During the 1984-85 school year, Dr. Norvell's duties were assigned as 62% teaching, 35% research, and 3% service. Typically, faculty members are evaluated by their students towards the end of each term. Such evaluations are performed in accordance with standardized procedures, which the University has adopted by administrative rile. Students assign overall numerical scores from 1 to 5 for the course and for the instructor, with 1 being the tops of the range. Instructors are not present during the evaluation. Results are not provided to the instructors until after course grades are determined. Such procedures provide anonymity to Dr. Norvell's students evaluated her performance in accordance with such procedures. During the Fall 1984 term, Dr. Norvell taught Adult Psychopathology, a required course for all department students. In the confidential evaluation, her students rated the course as 1.11 and her instruction as 1.11 above the respective department mean of 1.71 and 1.49. During the Spring of 1985, Dr. Norvell taught an elective course. An elective course is conceived by the instructor who teaches the course. The students who enroll in elective courses are generally interested in the subject matter. In the confidential evaluation, her students rated the course as 1.25 and her instruction as 1.25, above the respective department mean of 1.71 and 1.56. Students frequently rated elective courses higher than required courses. Dr. Norvell's first year was ,productive, according to Dr. Perry's letter of evaluation, dated June 26, 1985. In his letter, he stated that she "performed well in the range expected for progress towards tenure." The evaluation noted that Dr. Norvell's clinical billings were lower than other faculty members. Clinical billings are a measure of time spent in clinical teaching, but are not reflective of quality. Dr. Norvell's teaching included both clinical and classroom activities. Dr. Perry attributed the low billings to her recent arrival and expressed his anticipation that she would have no difficulty in increasing her billings. During the 1985-86 school year, Dr. Norvell's duties were assigned as 59% teaching, 33% research, and 8% service. In October, 1985, Dr. Perry became aware of conflicts between Dr. Norvell and clerical staff related to preparation and completion of written case reports. Dr. Perry wrote a letter to Dr. Norvell expressing his concern, advising that certain procedures would be instituted, and stating, "[e]ven with their adoption, it will still be necessary to relate to the staff with courtesy and understanding of their total work loads." During the Fall 1985 term, Dr. Norvell again taught Adult Psychopathology. In the confidential evaluations, her students rated the course as 2.44 and her instruction as 2.44, below the respective department mean of 2.37 and 226. By letter of evaluation dated June 25, 1986, Dr. Perry commended Dr. Norvell's research. He further noted her substantially increased clinical billings. However, Dr. Perry stated that her professional judgement was unsatisfactory, and that her negative attitude towards faculty colleagues and staff was "problematic." The evidence shows that from the beginning of her employment with the University until the end of academic year 1985-86, Dr. Norvell was assigned responsibilities as Chief of the Adult Consult Liaison Service. Dr. Perry testified that Dr. Norvell was to be supervised by Dr. Alan Glaros, Director of the Medical Psychology Service and the Pain and Stress Management Clinic. Dr. Glaros and Dr. Norvell recalled their relationship as that of equals. There was friction between Drs. Norvell and Glaros, at least to a degree that Dr. Perry found unacceptable. Following the academic 1985-86 period, Dr. Perry relieved Dr. Norvell of her responsibilities as Chief, in part because Dr. Norvell and Dr. Glaros were unable to work together to Dr. Perry's satisfaction, and because of a departmental reorganization. Dr. Perry subsequently did not assign any service responsibilities as part of Dr. Norvell's employment. During the 1986-87 school year, Dr. Norvell's duties were assigned as 65% teaching, 35% research, and 0% service. During the Fall 1986 term, Dr. Norvell again taught Adult Psychopathology. Her students rated the course as 2.00 and her instruction as 1.70. The respective department mean scores were 1.93 and 1.78. By evaluation letter dated June 3, 1987, Dr. Perry noted that Dr. Norvell's teaching and research continued to be productive. He commended her on receipt of an award for excellence in consulting research. Dr. Perry stated that her participation on a minority recruitment trip represented "outstanding university service." He also noted that her attitude and relationships with colleagues and students was much improved. During the 1987-88 school year, Dr. Norvell's duties were assigned as 53% teaching, 47% research, and 0% service. During the Fall 1987 term, Dr. Norvell again taught Adult Psychopathology. In the confidential evaluations, her students rated the course as 2.82 and her instruction as 2.91, below the respective department mean of 1.87 and 1.75. At hearing, Dr. Norvell asserted that the poor evaluation was caused by the specific class of students enrolled in her course during the Fall `87 term. As support for the assertion, Dr. Norvell provided testimony from another instructor, no longer at the University, who had received poor evaluations from supposedly the same group of students. The evidence does not establish that the poor were due to the specific class of students. On January 11 and 12, 1988, Dr. Perry met with Dr. Norvell to discuss the results of the Fall `87 student evaluation. He expressed concern with her attitude towards students as reflected by the individual student comments in the evaluations. (At that time, the department mean had not been calculated.) Dr. Perry also expressed his opposition to Dr. Norvell's practice, of which Dr. Perry had become aware, of soliciting student evaluations in addition to the department's standardized confidential evaluations. Dr. Perry believed the practice to be inappropriate, and, at hearing, stated that the practice could have resulted in inflation of the scores resulting from the standardized evaluations. While Dr. Norvell's activity may have been inappropriate, the assertion that such could have resulted in inflated student evaluations is unsupported by evidence. During the January 11-12 meetings, Dr. Norvell asked Dr. Perry if he would support her application for tenure. A faculty member at the Assistant Professor level eventually receives tenure or is terminated following the sixth year of employment. Dr. Perry replied that he could not support her application at that time. By letter to Dr. Perry, dated January 13, 1988, Dr. Norvell wrote that a review of the data "suggests that 89% of all students who have taken the adult psychopathology course regard me as adequate or better." Dr. Norvell stated that she appreciated his concern and requested a formal evaluation of her teaching, including clinical practice. By letter to Dr. Perry, dated January 19, 1988, Dr. Norvell expressed surprise at Dr. Perry's January 12 statement of nonsupport for her tenure application. Dr. Norvell stated, "I am eager to address any issues that you feel are of concern and would like any problem areas articulated so that I may work to correct any existing problems." She further requested that he provide "specific guidelines for remedying those particular problems." By letter to Dr. Norvell, dated January 21, 1988, Dr. Perry expressed "some surprise and considerable disappointment" in Norvell's letter of January In the letter, Dr. Perry recalled, at length, the discussions of January 11-12. According to the letter, the discussions included her use of additional, non-confidential, student evaluations, and her attitude towards students. Dr. Perry stated that students had become apprehensive at the fact that she requested evaluations prior to the close of the course, and that she personally collected written comments from students. He enumerated the reasons he recalled Dr. Norvell having given for the poor evaluation. Dr. Perry also discussed her previous course ratings and his disagreement with her interpretation of the evaluation scores. In concluding the letter, Dr. Perry stated that his concern is not her teaching ability, but her performance. He states that her "teaching performance and your combative rather than collaborative attitude regarding the evaluation is of serious question. As I said in our discussion, I do not want to prejudge the broader tenure evaluation, but if I had to vote at this time, I would not be able to support your candidacy." By letter to Dr. Norvell dated February 10, 1988, Dr. Perry noted that the letters appear to have crossed in mailing, and that he had not received her letter of January 19 prior to his writing of the January 21 letter. He noted that the department mean had become available and that Dr. Norvell's evaluation scores were below the mean. He again stated his recollection of the earlier meetings and, in response to her request for examples of her behavior, wrote "in our discussions, I ha[ve] given you numerous examples of your behavior that I considered to reflect your attitude." Subsequently, Dr. Norvell sent a letter to Dr. Perry, dated March 8, 1988, identical to her letter of January 19, in which she requested specific identification of her problems. Dr. Perry had previously responded to her request. Dr. Norvell was either unable or unwilling to accept his comments. By evaluation letter dated June 21, 1988, Dr. Perry stated that Dr. Norvell's research and clinical teaching remained productive. He acknowledged her service on university committees was appreciated. However he started that her course teaching and her judgement were unsatisfactory. He further expressed his displeasure with her response to his concerns, and referred to the previous series of letters exchanged. He stated that, although previously there had been improvement in her relationships with colleagues and students, additional improvement was required. Dr. Perry's June 21 letter advised that his concern was "with the great variability in your performance over time and your difficulty in objectively looking at your own role in this variability. Unless individuals can scrutinize their own behavior, it is difficult for them to make any improvement permanent. The improvement is also destined to be temporary to the extent that it is based upon compliance to administrative authority rather that a genuine acceptance that improvement is needed." Although matters related to tenure are supposedly confidential, knowledge of Dr. Norvell's tenure situation appears to have been widespread among faculty and some students. Dr. Norvell discussed the matter with faculty members. Dr. Perry found it necessary to discuss the situation with non-tenured instructors who were aware of the approaching Norvell tenure deliberations and who were personally concerned about tenure practices. During the Summer 1988 term, Dr. Norvell taught an elective course. Her students rated the course as 1.00 and her instruction as 1.00, above the respective department mean of 1.50 and 1.61 respectively. In the Department of Clinical and Health Psychology, a faculty member in Dr. Norvell's position may submit a tenure application in either the fifth or sixth year of employment. Generally, a candidate for tenure applies once. An assistant professor will usually apply for promotion to associate professor concurrently with the tenure application. Dr. Perry suggested to Dr. Norvell that she delay her application until her sixth year. Such would have permitted Dr. Norvell to teach the Adult Psychopathology course again and would have provided an additional set of student evaluations to be considered. Dr. Perry believed such course of action to be advisable in response to the poor evaluation from the Fall 1987 class. Dr. Norvell chose to submit the application in her fifth year. In October, 1988, Dr. Norvell began to prepare her tenure and promotion application. A candidate for tenure is responsible for preparation of the package of materials which are reviewed by appropriate personnel. Dr. Norvell's package included biographical and professional information, letters of professional recommendation, standardized student evaluation results, and previous employment evaluations. The package was completed by early November, 1988. Dr. Norvell's tenure package also included letters written by students supportive of her application. The inclusion of such letters, while unusual, was not prohibited. Dr. Norvell did not review the letters. There is no evidence that Dr. Norvell personally solicited the letters. While several witnesses testified that they believed the inclusion of the letters to be inappropriate, the evidence does not establish that the inclusion of the student letters materially affected the tenure deliberations. There is disagreement as to the availability of evaluations received from Dr. Norvell's clinical students. At hearing, Dr. Perry testified that such evaluations were received from Dr. Norvell's clinical students during the period of her employment and were available for her review. Dr. Perry testified that Dr. Norvell's clinical evaluations during her first two years were below average, but not to a significant degree. He also testified that, during that period, he did not inform Dr. Norvell that such clinical evaluations were below average. Dr. Norvell was apparently not aware that such evaluations had been performed. There is no evidence that actual clinical evaluations were considered by the tenure committee or that such evaluations materially affected the committee's deliberations. Such evaluations were not included in Dr. Norvell's application. Tenured faculty appropriately based their opinions of Dr. Norvell's clinical instruction on personal knowledge of her performance in the clinical practice. Applications for tenure are reviewed by department faculty at a scheduled meeting. The application is discussed and tenured faculty vote by secret ballot. Eight faculty members were eligible to vote on Dr. Norvell's tenure application. Applications for promotion are considered at the same time. All faculty members holding the rank sought by the applicant or higher are eligible to vote by secret ballot on the promotion issue. Nine faculty members were eligible to vote on Dr. Norvell's promotion application. The faculty meeting and balloting occurred in November 8, 1988. At the faculty meeting, Dr. Perry initially expressed his opposition to Dr. Norvell's candidacy. Dr. Perry conceded that her research was distinguished, but argued that neither her instruction nor service were of like quality. Dr. Perry had previously attended all but one faculty meeting related to a tenure decision, and had previously expressed his opinion at such meetings. He had not previously opposed a tenure application. Dr. Norvell asserts that Dr. Perry acted inappropriately in speaking against her application at the faculty meeting during which the Norvell application was considered. The evidence does not establish that Dr. Perry's opposition to Dr. Norvell's application was based on factors other than his personal opinion as to whether she had attained a level of distinction in two of the three criteria for tenure and promotion. There is no evidence that Dr. Perry's opinion affected the deliberations any more than the opinion of any other faculty member. The evidence does not suggest that the outcome of the secret ballot would have been otherwise had Dr. Perry not expressed his opinion. Given the faculty's apparent knowledge of the situation prior to the meeting, it is doubtful that any faculty member entered the meeting unaware of Dr. Perry's opposition to the application. Some of the tenured faculty who participated in the meeting testified at hearing. Of those testifying, one admitted to having felt pressured by Dr. Perry's actions at the meeting, but nonetheless voted in favor of Dr. Norvell's tenure application. One faculty apparently considered his antagonistic personal relationship with Dr. Norvell in reaching a decision and abstained from voting on the tenure issue. Had he voted in favor of her tenure application, as he admitted was probable up until shortly before the faculty meeting, it would have been entitled to additional review. In fact, as discussed below, the application was forwarded for additional review. The abstention by the referenced faculty member was irrelevant. The remainder of the faculty members testifying generally found either her teaching, her service, or both, to be unsatisfactory. The vote on Dr. Norvell's tenure application was three for, three against, and two abstentions. The vote on Dr. Norvell's promotion application was six for, two against, and one abstention. Promotion is rarely granted in cases where a tenure recommendation is negative. Although Dr. Norvell asserted that the results indicate that Dr. Perry pressured faculty to vote against her tenure application, and that the faculty voted otherwise on the promotion application, the evidence does not support the assertion. It is more likely, as witnesses testified, that the favorable vote on promotion was with due regard to her distinction in research. Subsequent to consideration and voting by department faculty, applications for tenure and promotion may be forwarded to the college level for further consideration if either the department faculty or the department chairman recommend an award of tenure. If the application receives a negative recommendation from both the faculty and department chairman, the application is not forwarded. However, given the circumstances of this situation, the Norvell application was forwarded for college level review even though neither the tenured faculty nor department chairman Perry recommended the granting of tenure. Applications for tenure and promotion within the College of Health Related Professions are reviewed by the college dean and the advisory Tenure and Promotion Committee. The committee members represent the several departments in the college. Six tenured faculty members, two of whom had participated in the previous tenure meeting, were members of the committee which considered Dr. Norvell's application. Dr. Perry was one of the persons on the committee. Due to the circumstances of the case, Dr. Perry was instructed, either by the college dean, the committee, or both, that he was not to participate in the college level deliberations. Generally, the appropriate department chairman forwards the application package with a transmittal letter and fully participates in the process. Dr. Perry initially decided not to provide such a transmittal letter. Upon learning that Dr. Perry would not be writing a letter, Dr. Norvell wrote and mailed a letter of her own to the college dean and committee members. Dr. Norvell's letter, dated November 23, 1988, expressed her opinion towards Dr. Perry. Dr. Norvell's letter charged that Dr. Perry's opposition to her application was of a personal nature, and stated "[i]f the tenure committee and Dean of the College of Health Related Professions is willing to objectively review my credentials I know I will receive tenure and promotion." After learning that Dr. Norvell had delivered her letter, Dr. Perry wrote a transmittal letter, dated November 14, 1988, in which he addressed Dr. Norvell's application for tenure and explained the rationale for his opposition to her application. Dr. Perry attended the committee meeting and read the letter to the members. He thereafter excused himself and did not participate in the deliberations or the vote. The committee reviewed the tenure package prepared by Dr. Norvell. Following the discussion, the committee voted by secret ballot. The result of the vote on the tenure application was five against and one absent. The result of the vote on the promotion application was five abstentions and one absent. One member of the committee testified that he abstained on the issue of promotion because promotion was rarely awarded without tenure, and saw no reason to do otherwise. Dr. Norvell asserts that Dr. Perry acted inappropriately in speaking against her application at the College meeting during which the Norvell application received further consideration. Dr. Perry was prepared to submit the application to the committee without further comment. He subsequently chose to do write the letter in response to Dr. Norvell's letter accusing Dr. Perry of personal bias. The evidence does not establish that under the circumstances, Dr. Perry's letter was inappropriate. Following the committee vote, the Norvell application was submitted to the Dean of the College of Health Related Professions, Dr. Richard Gutekunst, for review. Dr. Gutekunst reviewed the committee's recommendation and the application package. He determined that, although Dr. Norvell's research was acceptable, her teaching was inconsistent and unsatisfactory. He also determined her service to be undistinguished. He denied the application for tenure and promotion. The University of Florida has adopted rules which identify the requirements for tenure. Rule 6C1-7.019(3), Florida Administrative Code, provides that the criteria for the granting of tenure shall be relevant to the performance of the work which the faculty member has been employed to do and to the faculty member's duties and responsibilities as a member of the University community. The criteria recognize three "broad categories of academic service" including instruction, research, and service. To attain tenure, a faculty member must achieve "distinction" in at least two of the three "broad" categories. "Distinction" is defined as "appreciably better than the usual college faculty member of the candidate's present rank and field". During Dr. Norvell's employment with the University of Florida, her primary responsibilities were teaching and research. Beyond the service expected of all faculty members, such as participation on departmental committees and attendance at meetings, Dr. Norvell had minimal service responsibilities. Though minimal or no service duties were assigned to Dr. Norvell during her employment at the University, she performed minor service activities and was commended on her service in the annual evaluations. Dr. Norvell asserts that such service should be considered as part of the tenure evaluation. The administrative rules state that tenure criteria is applied in relation to the duties for which the candidate was employed. Accordingly, Dr. Norvell's service is minimally relevant to the tenure decision. Even if it the evidence does not establish that such service was appreciably better than the usual college faculty member of the candidate's present rank and field. The University concedes that Dr. Norvell's research was distinguished. Accordingly, to receive tenure, Dr. Norvell must also achieve distinction in instruction. The evidence does not establish that Dr. Norvell's instruction was of distinguished quality. As judged by the student evaluations obtained confidentially from students in her classes, and from faculty familiar with Dr. Norvell's clinical practice, Dr. Norvell's teaching was inconsistent. The evidence fails to establish that Dr. Norvell's instruction was appreciably better than the usual college faculty member of the candidate's present rank and field. In claiming that Dr. Perry acted in opposition to her application for personal reasons unrelated to her qualifications for tenure and promotion, Dr. Norvell related anecdotal information which she asserted demonstrated his personal bias. The evidence does not support her claim that Dr. Perry acted for personal reasons.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the University of Florida enter a Final Order dismissing the Petitioner's petition for tenure and promotion. DONE and RECOMMENDED this 9th day of March, 1990, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM 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 9th day of March, 1990. APPENDIX CASE NO. 89-0144 The Petitioner filed proposed findings of fact which included, identified as "notes", comments as to the reliability of testimony and evidence. Such "notes" are regarded as argument and are rejected as subordinate. The following constitute rulings on proposed findings of facts submitted by the parties. Petitioner The Petitioner's proposed findings of fact are accepted as modified in the Recommended Order except as follows: 12. Rejected, not supported by the cited testimony. Dr. Perry did not evaluate her service as outstanding in her first year. He did commend her in her third year on her outstanding service related to the minority recruitment trip, a year in which she had no assigned service responsibilities. 13-14. Accepted as to the statements excerpted from the letters of evaluation, however, it is noted that additional information was included in the evaluations which was less favorable. Rejected, not supported by greater weight of evidence. Rejected, contrary to the evidence and to the Petitioner's assertion that Dr. Glaros was not Dr. Norvell's supervisor. Rejected, not supported by the greater weight of evidence. Rejected, immaterial. Issue is whether Petitioner met the criteria for award of tenure. The reference to clinical evaluations is rejected, irrelevant. Reference to Dr. Perry's discussions with "junior" faculty is rejected, contrary to the greater weight of evidence. 28. Rejected, Dr. Bauer's favorable vote would have permitted further review of application, which occurred despite his abstention, immaterial. 29-30. Rejected, contrary to the greater weight of evidence. 31. Although the Findings of Fact note the Petitioner's election as Teacher of the Year, such is found to be less persuasive or reliable that standardized student evaluations. 34. Rejected. The greater weight of evidence establishes that Dr. Perry was instructed not to participate and did not participate in the college level deliberations. The evidence does not establish that he was instructed not to attend. 35-36. Rejected, unnecessary. The fact that committee members would consider the department chairman's opinion to be persuasive does not establish that Dr. Perry acted, inappropriately in expressing his opinion of Dr. Norvell's qualifications. Dr. Perry's letter was written in response to Dr. Norvell's allegations of personal bias. 37. Rejected. Not supported by greater weight of evidence. 39-41. Rejected. Not supported by greater weight of evidence. Respondent The Respondent's proposed findings of fact are accepted as modified in the Recommended Order except as follows: The reference to clinical evaluations is rejected, irrelevant Rejected, unnecessary. 19. The reference to clinical evaluations is rejected, irrelevant. 27. The reference to clinical evaluations is rejected, irrelevant. Last sentence rejected, unnecessary. 34. Rejected, irrelevant. 35-36. Rejected, unnecessary. 42-43. Rejected, irrelevant. The referenced vote had no effect. 44-46. Rejected, cumulative. 56. Rejected as to the mariner in which Dr. Perry received notification that he was not to participate in the committee deliberations, immaterial. 58. Rejected, unnecessary. COPIES FURNISHED: John Lombardi, President Office of the President University of Florida Tigert Hall Gainesville, Florida 32611 Rodney W. Smith, Esq. Law Offices of Rodney W. Smith, P.A. Post Office Box 628 Alachua, Florida 32615 Barbara C. Wingo, Esq. Office of the General Counsel University of Florida 207 Tigert Hall Gainesville, Florida 32611
The Issue Whether respondent, an assistant professor at Miami-Dade Community College, should be dismissed on grounds of willful neglect of duty, gross insubordination, and incompetency as alleged.
Findings Of Fact Respondent, Joan Humphries, earned a bachelor's degree from the University of Miami, a master's degree in counseling and guidance from Florida State University, and a Doctorate of Philosophy in experimental psychology from Louisiana State University. (Testimony of Humphries.) Before coming to Miami-Dade Community College, she worked as a psychological consultant at Louisiana State Hospital and taught at the University of Miami. She has been employed by the College for approximately 15 years--since October, 1966. (Testimony of Humphries.) First employed by the College as a part-time instructor, she soon became a full-time instructor of introductory psychology courses. She is now a tenured assistant professor and was granted a continuing teaching contract by the College. (Testimony of Humphries.) During her years at the College, she received annual performance evaluations from the chairperson of her department--now named the Department of Behavioral Studies. Until 1978, she was evaluated as a competent instructor. Her 1970 evaluation stated: Dr. Humphries continues to do an excellent job of teaching PSY 207. She has been most helpful in orienting new faculty members [and] is a most dependable and valuable member of the psychology faculty. (P-75.) In 1971, David Powers, her new department chairperson, recommended her for promotion and gave her this evaluation: Joan Humphries possesses excellent knowledge of her subject field. Her course is extremely well planned out and organized. She is quite fair in her grading techniques, . . . (P-78.) In 1972, she was rated as "outstanding" in professional status, growth, and development; "competent" in her performance as a faculty member; and as giving "more than most" in ancillary services to the College. In 1973, Dr. Powers again rated her as competent and described her professional strengths and goals: Professional Strengths: Joan displays an in-depth knowledge of behavioristic psychology. Joan is competent in utilization of audiovisual materials and psychological equipment. She is conscientious in meeting her office hours. She has originated several ideas for obtaining both community involvement and enrollment in future psychological courses. Joan involves her students in community activities by requiring a ten hour out-of-class service project. Professional Goals: In order to maintain larger retention rate, Joan should develop a diversity of instructional strategies including greater enthusiasm in teacher presentation. She should place less emphasis on objective testing and involve more subjective methods for student evaluations, [i]ncluding student feedback on course activities and evaluative tools should be meaningful for her students. This summer she will be acting chairman of a committee for a parental education course to be offered in the fall. (P-82.) In 1974, Dr. Powers again rated her as a "competent" faculty member and "outstanding" in professional status, growth, and development. He recommended her for promotion and described her professional strengths: Professional Strengths: Joan is showing even more enthusiasm [sic] toward the college this year than last year. She has developed many innovative ideas including a proposed psychology laboratory, courses associated with the county judges and for the education of elderly citizens within the community, and a rationale for a four day college work week. Joan helped increase the fall term departmental productivity figure by conducting a large section of 100 Psychology 211 students. She has incorporated a formal student evaluation system into her course. She not only participates in community betterment but requires her students to spend at least 15 hours working on a community project. In determining the student's grade, this year, she has placed greater emphasis upon student involvement in projects, experiments, and oral presentations. In her classes Joan includes recent relevant research findings in order to clarify psychological concepts. She has devoted many hours toward coordinating the senior citizens program and the parent education course. She is an active sponsor of Phi Lambda Pi and continually invites guest speakers into her classes. Joan actively engages in scientific research and she has recently written an article for the Journal of Parapsychology. Joan is recommended for promotion to Associate Professor, Senior. Professional Goals: Joan should be a good resource coordinator for utilization of the new Alpha Theta Cyborg. This coming year the department could use her for teaching a couple sections of Psychology 212. Her ideas for meeting the community's needs are practical and worth implementing. Joan should perhaps develop a written syllabus in outline form to give to all of her students at the beginning of the course. Joan would like to initiate and teach a course in recent psychological developments, i.e., biofeedback, hypnosis, and brain research. (P-89.) She was not promoted, however, because she had not yet completed the required three years in grade. She appealed the College's failure to promote her. Although she subsequently satisfied the three-year requirement, she has not been promoted. She attributes this to discrimination by the College because of her earlier appeal. In 1975 and 1976, she was rated "competent" but given specific suggestions for improved performance (P-119.) In 1977, she was rated as a "competent" faculty member who contributed "more than most" in ancillary services to the College, and recommended for promotion. But, "some reservation" was indicated concerning her professional status, growth, and development. (P- 235.) In 1978, her new department chairperson, Gerald L. Sicard, rated her as "competent;" described her as a dedicated psychologist who gave enthusiastic lectures; and noted that evaluations by her students were generally positive. (P-315.) She was rated "unsatisfactory" by the evaluations completed in 1979, 1980, and 1981. The Charges: Eleven Specific Allegations of Misconduct The College's charges against respondent--willful neglect of duty, gross insubordination, and incompetency--rest on eleven specific allegations of misconduct. The findings of fact which follow are organized under the pertinent allegation. Alleged: Over a period of years, the respondent has demonstrated belligerence toward those in authority. Respondent has not demonstrated a pattern of belligerence or hostility toward her College superiors. Her supervising department chairperson, Mr. Sicard, had difficulty defining the term at hearing. When pressed, he gave as examples her desire to tape record conversations when meeting with a supervisor, her writing of memoranda when an issue could be easily resolved by an office conference, and her refusal to sign a performance evaluation form because she did not agree with it. Such conduct illustrates her distrust of her supervisors and the persistence with which she advocated her views; they do not demonstrate belligerence. Neither, according to her students, did she exhibit belligerence toward her supervisors in the classroom environment. 7 College administrators became irritated with her obvious distrust, her persistence, and her unwillingness to compromise; two examples: (1) When her fellow faculty members selected a common course textbook for use in introductory psychology, she resisted and stubbornly advocated another choice. (2) During 1978, Mr. Sicard learned that respondent was offering extra grade points to students who campaigned for enactment of the Equal Rights Amendment ("ERA") to the U.S. Constitution. Students who desired to campaign against the ERA were not, however, equally rewarded. Mr. Sicard questioned her about the fairness of this practice and its relevance to introductory psychology. She explained that prejudice against women was a disease, that to give students points for campaigning against the ERA would be supporting a disease. Mr. Sicard, still unconvinced, instructed her by memorandum on November 6, 1978, to discontinue the awarding of points to students for pro-ERA or any other political activity. (P-359.) One week later she explained, in writing, that she had been promoting good mental health, not partisan politics, and cited various publications by psychologists in support of her view that discrimination against women was detrimental to human welfare; and that, in the past, her students had worked for legislation benefiting autistic children and migrant workers and the College had supported such action. She ended by asking Mr. Sicard if advocacy of human rights and legislation supporting human rights would be considered engaging in partisan politics. But, although she disagreed with her supervisor, she complied with his directive and discontinued the practice. (Testimony of Sicard, Tikofsky, Hansen, Signorelli, Humphries.) Alleged: On numerous occasions, the respondent willfully and deliberately failed to comply with directives from College administrators relative to her classes of instructions. In connection with respondent's 1978 performance evaluation, Mr. Sicard and respondent negotiated and agreed upon goals and objectives for the coming year. The College contends that several of the goals were not met. Some of these items were tasks which Mr. Sicard thought were important at the time, others originated with the respondent. The effect to be given these goals is ambiguous. Mr. Sicard now considers some of them to be mandatory or directory in nature; others not. In any case, during the ensuing year, respondent satisfied most of the goals and objectives specified in the 1978 evaluation. In 1978, as already mentioned, respondent's department decided to select a common text for introductory psychology courses. Respondent resisted the consensus selection; she advocated an alternative and wrote memoranda to Mr. Sicard expressing her views. He responded with this memorandum: Instead of replying to the above-memos, it would probably be mutually beneficial to discuss your problems during my office hours. This way we can move from adversary roles to the cooperative model existing with the other departmental faculty. In doing this, I hope we can work together to achieve your and the department's goals. Please advise me in this matter. (P-334.) Thereafter, respondent did not go to Mr. Sicard's office to discuss the issue further. But the nature of his memorandum is, by its terms, non-directory, even conciliatory in nature. Respondent's failure to accept the invitation cannot fairly be translated into willful failure to comply with an administrator's directive. On December 4, 1978, Mr. Sicard recommended that respondent's employment be terminated for various "acts of insubordination." (P-368, P-369.) He asserted that she violated regulations by utilizing the psychology laboratory for hypnosis and biofeedback treatment for students with smoking and overweight problems; that her earlier awarding of grade points to students who worked for ERA violated a 1976 directive of David Powers, the previous department chairperson; and that she continued to refer students to Robert Courier, an alleged psychic and hypnosis counselor, despite the fact that Mr. Courier had been prohibited from instructing students in her classes. Her alleged failure to comply with laboratory regulations, even if true, does not constitute willful violation of an administrator's directive relative to her classroom instruction; and Mr. Sicard acknowledges that her referral of students to Mr. Courier "do[es] not violate previous directives" to respondent. (P-368.) This leaves only the alleged violation of Mr. Powers' 1976 directive. In that directive, Mr. Powers directed Respondent to obtain prior clearance from the departmental chairperson for "[a] 11 off-campus activities which affect the student's grade[s]." (P-147.) In 1977, however, Mr. Power's successor chairperson, Bess Fleckman, effectively countermanded or negated the effect of Mr. Powers' directive. By a memorandum dated March 21, 1977, she asked respondent to take full responsibility for assignments to students, stating that this should not "be a concern of a chairperson." (P-261, P-262, P- 263.) Thus, respondent's subsequent assignments concerning off-campus ERA activities did not violate a directive from her supervising administrator. By memorandum dated April 3, 1979, Mr. Sicard suggested that respondent improve her teaching techniques by accepting the assistance of Ms. Fleckman--a qualified and experienced classroom instructional specialist. (P- 388.) Respondent replied with a memorandum stating that she did not wish to work with Ms. Fleckman because she did not feel Ms. Fleckman "would be objective in evaluating my performance. (P-391.) Mr. Sicard replied on April 17, 1979, converting his suggestion into a clear directive that respondent work with and accept the assistance of Ms. Fleckman. Although clearly unhappy with the arrangement, respondent complied. (P-404.) The College has not shown that respondent ever refused or willfully and deliberately failed to comply with an administrator's directive which was phrased in clear and mandatory terms. Administrators, understandably, preferred to give suggestions to respondent, not orders or directives. But, failure to agree with or follow a suggestion does not amount to willful violation of a directive. (Testimony of Humphries, Fleckman, Sicard.) Alleged: Respondent . . . repeatedly refused to follow directives from college administrators, which has distracted from the objectives of her department, division, and campus. This charge is similar to the preceding allegation; no additional evidence was offered to substantiate it. Consequently, it is similarly concluded that no showing has been made that respondent repeatedly refused to follow directives from college administrators. (Testimony of Humphries, Fleckman, Sicard.) Alleged: Respondent deliberately failed or refused to perform assigned duties within the parameters established by her department chairperson. This charge may overlap with charges contained in paragraphs B and C above. The only additional incident of any significance offered by the College in substantiation involves respondent's purported attempt to use the psychology laboratory for therapy purposes. In June, 1978, respondent served as coordinator of the department's psychology laboratory with the assignment to expand its uses. On June 22, 1978, she circulated a memorandum to faculty members announcing a new laboratory program called "Positive Personal Programming," which would be carried out by Kenneth Forrest; she believed he was a student in an honors-level psychology course taught by Dr. Cecil B. Nichols. The program involved treating subjects with weight control or smoking habits by means of hypnosis and biofeedback techniques. Since regulations allegedly precluded use of the laboratory for therapy purposes, Mr. Sicard instructed respondent that this proposed program could not be implemented. Although she protested that the proposed program would be beneficial and should be allowed, she complied with his directive and immediately cancelled the program. The program was never implemented. Mr. Sicard testified that he did not know whether the program described in respondent's memorandum to faculty was ever implemented, but he "assumed" it was. (Tr.160.) He considered respondent's memorandum as an act of insubordination justifying her termination. (P-368.) The evidence does not establish that the proposed use would violate applicable regulations. 2/ In any case, it has not been shown how a program which was never instituted could violate any limitations on use of the psychology laboratory. The College has not shown any deliberate failure or refusal by respondent to perform her duties within the parameters established by her department chairperson. (Testimony of Sicard, Humphries.) Alleged: Respondent failed to satisfy established criteria for the performance of assigned duties. No objective criteria have been promulgated to assess the performance of College faculty members. In the absence of such criteria announced prospectively, the College seeks to establish by expert testing that respondent did not cover the material required in an introductory psychology course; that she placed undue emphasis on biofeedback techniques; and that the grading system she used was inadequate. Although there is conflicting testimony on these matters, the testimony of Ronald F. Tikofsky is accepted as persuasive. Now a departmental chairperson at the University of Wisconsin, he obtained a master's degree in psychology, and took a minor in psychology for his doctorate. He taught in the Department of Psychology at the University of Michigan, where he became a full professor, and later served as chairperson of the Department of Psychology at Florida International University from 1971 through 1979. He has participated in the development of college curriculum, helped college instructors develop teaching techniques, and evaluated the performance of faculty members. His academic credentials are impressive, his testimony was objective, forthright, and credible. (Tr. 967-1017; R-48.) His opinions are accorded great weight. He opined that, in his profession, there is no consensus on any set number of concepts which should be taught in college level introductory psychology courses, that this properly follows within the discretion of the individual instructor. His review of the topics respondent covered during the fall and winter semesters of 1980 led him to conclude that she covered the basic materials of an introductory psychology course, and that the time she devoted to biofeedback theory and demonstrations was appropriate. After reviewing respondent's grading records, he concluded that her grading method was not unusual or unacceptable. Development of grading curves is an art, not a science; it involves the interplay of several variables and the subjective judgment of the instructor. Generally, respondent would take the class average, note the distribution, establish cutoff points for various grade levels, apply them to the data, and then apply a subjective factor. Mr. Tikofsky testified that the number of credit points assigned for completing outside projects was neither excessive nor inappropriate. These opinions of Mr. Tikofsky are expressly adopted. The College has not shown that respondent failed to satisfy any meaningful performance standard, announced either prospectively or retroactively. (Testimony of Tikofsky, Sicard, Humphries.) Alleged:. Respondent failed to comply with directives for required improvements that were set forth in her yearly personnel evaluations. As already mentioned above, the yearly personnel evaluations contained "goals and objectives," not "directives." These goals and objectives were the product of discussion and negotiation between the department chairperson and instructor; some were considered mandatory, others not. Those that originated with the instructor lacked mandatory effect. The three goals and objectives concerning biofeedback--contained on respondent's 1979 personnel evaluation form--originated with the respondent. She made a good faith effort to complete or completed each of those biofeedback goals. The remaining six goals and objectives were satisfied by respondent. As to the 1978 personnel evaluation, most, if not all, of the listed goals and objectives were satisfied. Her next evaluation--where she was rated unsatisfactory--does not fault her for failing to meet any 1978 goal or objective. The evidence does not show that respondent failed to satisfy any goal or objective which was listed on her evaluation and clearly understood--at the time--to be a directive, rather than an end toward which effort should be directed. (Testimony of Sicard, Humphries; P-315, P-474.) Alleged: The level of instruction in respondent's classes was below reasonable minimum standards. This charge overlaps with paragraph E above, and H below. The College has not established or published any objective minimum standards to measure an instructor's performance. Respondent used a standard approach to teaching introductory psychology: she used a vocabulary or concept list for each chapter of the textbook and gave frequent objective tests. Her classes were structured and well-disciplined. Her students were generally satisfied with her performance and compared her favorably to other instructors at the College. Those who went on to take more advanced psychology courses made grades similar to or better than those they received from respondent. Ms. Fleckman helped her to improve her teaching techniques. When Ms. Fleckman observed her teaching in 1979, she could offer only a few suggestions and rated her 8 on a 10-point performance scale. Videotapes of respondent teaching her classes were viewed at hearing. After reviewing the tapes, Mr. Tikofsky opined that respondent was an adequate and competent classroom instructor. His opinion is accepted as persuasive. The videotapes demonstrate convincingly that respondent delivers lectures in an organized, methodical fashion and that she has the attention of her students. The tapes further show that she takes her teaching responsibilities seriously, is genuinely interested in the subject matter, and that she tries to relate and respond to her students. In light of the above, and the findings contained in paragraph E above, it is concluded that respondent's level of instruction in her classes did not fall below reasonable minimum standards, either announced prospectively or applied retroactively. (Testimony of Humphries, Tikofsky, Fleckman, Signorelli.) Alleged: Students in respondent's classes were deprived of required course material. This charge overlaps charges contained in paragraphs E and G above, and the findings relating to those charges also apply here. During the fall and winter of 1980, Mr. Tikofsky opined that respondent covered the topics appropriate to a college level introductory psychology course. His opinion is accepted as persuasive. The topics which should be covered are left up to the individual psychology instructor. The College does not specify the topics and materials that must be covered. When respondent was suspended near the end of the 1980 winter quarter, she had covered the material which--according to her own class syllabus-- should have been covered at that time. The charge that her students were deprived of required course material is unsubstantiated by the evidence. (Testimony of Humphries, Tikofsky; P-2.) Alleged: Respondent's classes were unstructured. As already mentioned, respondent's classes were structured and well disciplined. Ms. Fleckman conceded that her classes were structured. Students took copious notes and were able to organize her lectures into outline form (see paragraph G above). This charge is unsubstantiated by the evidence. (Testimony of Humphries, Signorelli, Stipulated testimony of Students.) Alleged: Respondent maintained little control over students. Respondent conducted her classes in a no-nonsense, businesslike manner. She welcomed questions from students, but she did not tolerate disruption. She was a disciplinarian and was respected by her students. This charge is unsupported by the evidence. (Testimony of Humphries, Classroom Videotapes, Signorelli, Stipulated testimony of Students.) Alleged: Respondent failed to maintain enrollment and completion rates at acceptable levels. The College has not established, prospectively, criteria to determine acceptable student attrition rates. Never before has a College instructor been recommended for termination because of an unacceptable attrition rate. Respondent's 1979, 1980, and 1981 evaluations--where she was rated unsatisfactory--concluded that she failed to "maintain enrollment and course completion at acceptable levels." (P-380, P-474.) Although she repeatedly asked Mr. Sicard for a specific attrition figure which she should meet, no figure was ever supplied. Mr. Sicard concluded that her attrition rate was "too high in relation to her peers." That conclusion is unsubstantiated. Her completion rate, over the years, was 51.7 percent, a figure which compares favorably with her fellow instructors: Alan Winet (56.3); James Killride (50.6); Margaret Casey (54.3); Dorothy O'Conner (44.4); Peter Diehl (44.4); Royal Grumbach (51.5); Lawrence Chernoff (45.2); Ronnie Fisher (42.5); and Harold Andrews (47). Moreover, between 1978 and 1980, her attrition rate was improving, sometimes exceeding 60 percent. It is concluded that, when compared with her peers, respondent maintained an acceptable student course-completion rate. (Testimony of Hansen, McCabe.) Respondent's Relationship with College Administrators Respondent was frequently at odds with College administrators. She petitioned the College for a four-day work week and a female professor's bill of rights. She appealed the College's failure to promote her and repeatedly accused the College of sexual discrimination. She was an outspoken critic, questioning and challenging the actions of College administrators. (Testimony of Sicard, Humphries.) Her relationship with administrators was marked by mutual distrust and became adversarial in nature. To avoid misunderstandings, she resorted to tape- recording her meetings with supervisors; her communications with administrators were increasingly reduced to writing. (Testimony of Sicard, Humphries.)
Recommendation Based on the foregoing, it is RECOMMENDED: That respondent be reinstated as a continuing contract employee at Miami- Dade Community College with full back pay for the period of time of her suspension. DONE AND RECOMMENDED this 1st day of June, 1982, in Tallahassee, Florida. R. L. Caleen, Jr. Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of June, 1982.
The Issue The issue is whether Respondent committed misconduct in office by applying for credential payment in reliance upon an online doctorate degree obtained without academic effort and thus violated Section 1012.33(6)(b), Florida Statutes, and Florida Administrative Code Rules 6B-4.009(3) and 6B-1.006(5).
Findings Of Fact Respondent is an assistant principal at Toussaint L'ouverture Elementary School in Miami. He graduated from the United States Naval Academy in Annapolis, Maryland, in 1978. While serving in the military in Pensacola, Respondent obtained a master's degree from Troy State University in 1985 by way of its extension program. Respondent is 54 years old. In 1994, when first employed as a teacher in the Miami- Dade County public school system, Respondent was admitted to the doctoral program in education leadership at the University of Miami. He attended classes a couple of times per week per course and submitted tuition reimbursement vouchers to Respondent. Respondent left that program the following year without completing the requirements for a doctoral degree. In 1996, Respondent reviewed brochures that he had received in the mail and decided to pursue his doctorate degree at Northwestern University, Ltd. He sent Northwestern International University, LLC, (NW) a check for about $8000 to a post office box in Brussels, but did not seek reimbursement from Respondent. For some reason, Respondent also decided to obtain a doctorate degree from Northeastern University (NE) and sent them a check for about $7000 to a post office box in New York, but again did not seek reimbursement. Respondent testified that he believed that he had already obtained the maximum reimbursement available to him. Respondent engaged in academic activities with both institutions from 1996-2000, but the activities did not rise in scope or intensity to those associated with a legitimate doctoral program. In 1998, Respondent applied for an assistant principal position, omitting any mention of his academic activities with NW and NE. He obtained the job. In 2000, Respondent completed his academic activities with NW and NE. NW sent him a transcript showing the completion of 19 courses and the Ph.D. dissertation, with grades assigned to each. Only one typo undermines the credibility of the transcript itself: the second "i" is dropped from "Administration" in a human resources course, but the transcript omits dates for the courses. Respondent received very good grades with only one C and A+s in Education Program Evaluation and his dissertation. Less care went into the preparation of the NE transcript, which also appears to culminate in the award of a Ph.D. "Curriculum" is spelled "Cirriculum, ""Philosophy" is spelled "Philosphy," and "Evaluation" is spelled "Evaluaton." The NE envelope covering the transcript misspelled "transcript." Respondent received all As and Bs. Shortly after obtaining his dual doctorates, Respondent submitted them to Petitioner. The credential payment program for administrators went into effect in April 2006, so Respondent's motivation at the time that he submitted the transcripts was to obtain the prestige, and perhaps advancement, that went with the advanced degrees. However, on June 8, 2006, Respondent submitted an application for the credential pay increment due to an administrator in possession of a relevant, legitimate doctorate degree. In the application, Respondent stated that he possessed a Ph.D. from NE, which he had obtained in 2000. He signed the application beside a statement, "I certify that all the foregoing information is true to the best of my knowledge." Respondent claims that he submitted papers, including dissertations, in connection with both programs, but offered no detailed description of his academic activities. Instead, he seems to be "sticking to his story" that he thought he was completing coursework from legitimate educational institutions, even though it is indisputable that he did not. At all material times, Respondent has known that NE and NW were diploma mills. He never explained why he spent the money and, presumably, time pursuing doctorate degrees at both institutions over the same timeframe. He is aware of the rigor of legitimate programs, having attended the Naval Academy, Troy State, and University of Miami. Respondent was undaunted by the sloppiness apparent in the transcripts. He claims now that, "[i]f there is any fault, in this matter, it is one of trusting the advertisements that I saw, brochures I received and the syllabi, course work and transcripts I received from the [sic] non-accredited institution." However, it is inescapably apparent that there was fault, and the fault is that Respondent, with the intent to deceive Petitioner, submitted these transcripts and a fraudulent application for credential pay, to which Respondent knew he was not entitled. There is no testimony explicitly to the effect that Respondent's fraudulent application for credential pay is so serious as to impair his effectiveness in the school system. However, this fact is inferred from the nature of a fraudulent application, to Respondent's professional employer, for credential pay based on fraudulently obtained academic credentials. After a conference for the record, Petitioner proceeded to discipline Respondent for his misconduct. By letter dated December 10, 2007, Petitioner informed Respondent that the Superintendent would be recommending to the School Board suspension without pay for "30 workdays," effective at the close of the workday on December 19, 2007. The School Board subsequently approved this recommendation and, by letter dated December 20, 2007, the Assistant Superintendent informed Respondent that he was suspended for "30 workdays" without pay and he was not to report to any work location from December 20, 2007, through February 13, 2008. The penalty is not excessive. At the final hearing, Respondent elected not to admit to his misdealings with his employer, but instead produced exculpatory witnesses, one of whom testified that she had done some typing for him and one of whom testified that he had seen the damage done to Respondent's home by a hurricane and a lot of water damage to Respondent's belongings. Respondent has evidently not yet accepted responsibility for his misconduct. Respondent rightly questions the accuracy of the Assistant Superintendent's calculation of the period of the suspension, which was to cover "30 workdays." Equating workdays with days for which Respondent was to be paid, Respondent claims that the suspension actually covers 40 workdays, not 30 workdays. The Manual of Procedures of Managerial Exempt Personnel, dated April 18, 2006, states at Section B-3 that a 12-month employee works a 260-day work year. This means that he works 52 weeks times five days per week, for a total of 260 days. Respondent's suspension started December 20, so, in accordance with the determination of the School Board, the suspension should have ended at the close of the workday on January 30.
Recommendation It is RECOMMENDED that Petitioner enter a final order finding Respondent guilty of misconduct in office for intentionally misrepresenting his academic qualifications in applying for credential pay for a doctorate degree and imposing a 30-workday suspension, as previously authorized by the School Board, but paying Respondent back pay for the period after January 30 through which the suspension was mistakenly implemented. DONE AND ENTERED this 9th day of May, 2008, in Tallahassee, Leon County, Florida. ROBERT E. MEALE 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 9th day of May, 2008. COPIES FURNISHED: Dr. Rudolph F. Crew, Superintendent Miami-Dade County School Board 1450 Northeast Second Avenue, No. 912 Miami, Florida 33132-1308 Deborah K. Kearney, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Dr. Eric J. Smith Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 James C. Casey, Esquire Law Offices of Slesnick & Casey, LLP 2701 Ponce de Leon Boulevard, Suite 200 Coral Gables, Florida 33134 Janeen L. Richard, Esquire Miami-Dade County School Board Attorney's Office 1450 Northeast 2nd Avenue, Suite 400 Miami, Florida 33132
Findings Of Fact By letter dated February 4, 1976, the Board denied the Petitioner's application for licensure as a psychologist in the State of Florida (Petitioner's Exhibit 1). As grounds for its denial the Board stated that the Petitioner's doctoral degree does not meet the requirements of Florida Statutes Chapter 490.19(1)(d). Petitioner received a master's degree in clinical psychology from the University of Tennessee, Knoxville, Tennessee in March, 1949. A transcript of the Petitioner's record at the University of Tennessee was received in evidence as Petitioner's Exhibit 2. Petitioner took two academic quarters of course work at the University of Tennessee, Knoxville, and two quarters at the University of Tennessee, Memphis, School of Medicine, Department of Psychiatry. While at Knoxville the Petitioner completed, inter alia the following courses: Philosophy 401, a course in esthetics; Psychology 431 and Psychology 432, courses in clinical psychology with an emphasis on testing materials; and Psychology 542, a course in advanced statistics. While at Memphis the Petitioner completed the following courses: Psychiatry 403, a course in fundamentals of human behavior; Psychology 461, a course in applied psychological psychology; Psychology 651, a course in which clinical practices were demonstrated and discussed; Psychology 681, a practicum course in testing, diagnosis, and evaluation of patients at the psychiatric hospital; Psychology 594, a course in advanced testing techniques; and Psychology 682, an additional practicum course. In addition to the course material Petitioner completed a thesis, and oral examinations. The Petitioner then completed an internship at the University of Tennessee, Department of Psychiatry, which is called the Gailor Psychiatric Hospital. Following her internship the Petitioner joined the staff at the Gailor Psychiatric Hospital, where she worked for four years. During the fall of 1967 the Petitioner attended George Washington University. A transcript of her record at George Washington University was received in evidence as Petitioner's Exhibit 4. Petitioner took the following courses: Learning Problems and Disabilities, a course on how to teach and handle misbehaving, disturbed children; and the Adolescent in School and Work, a course dealing with behavioral adjustment of adolescents. Before she could complete a degree program at George Washington, the Petitioner's husband was relocated, and she moved to Las Alamos, New Mexico. During 1970 the Petitioner enrolled in the University of New Mexico in Albuquerque, New Mexico. Petitioner entered the College of Education, Department of Guidance and Counselling. Petitioner was seeking a degree in clinical psychology. There is a Department of Psychology at the University of New Mexico, but the program in that department dealt almost exclusively with experimental psychology, a program in which the Petitioner had no interest. The transcript of the Petitioner's record at the university of New Mexico was received in evidence as Petitioner's Exhibit 5. During the spring academic quarter of 1970, the Petitioner took a workshop course which focused upon working with children who have learning disabilities. During the summer academic quarter of 1970 Petitioner took a course dealing with the treatment of special education children in the regular classroom, and a seminar which dealt with education and treatment of neurologically impaired children. During the fall, 1970 academic quarter Petitioner took a course in group techniques for guidance; a course dealing with the education of emotionally disturbed children; and an advanced course dealing with education and treatment of neurologically impaired persons. During the spring academic quarter, 1971 the Petitioner took a course in techniques of counselling, an advanced practicum course in guidance and counselling, and an additional course in working with physically and neurologically impaired persons. During the summer quarter, 1971 Petitioner took a course titled "Research Design and Statistics". During the fall quarter of 1971, the Petitioner took a course on techniques of parent and teacher counselling, and a course on advanced theories of counselling and psychotherapy. During the spring quarter of 1972, the Petitioner took an additional advanced practicum in counselling and guidance. In addition to her course work the Petitioner completed a dissertation. The Petitioner's dissertation was a study of the way school counsellors view their work, both as they actually perform it and as they ideally perceive it; and the way students view what counsellors do, both in reality and ideally. Petitioner received a Doctor of Philosophy degree from the University of New Mexico. Her degree was labeled a degree in Pupil Personnel Services, which is an umbrella degree for all doctoral programs in the School of Education. Petitioner's major field of study was titled Counselling Psychology. No program in the University of New Mexico School of Education was approved by the American Psychological Association at the time that Petitioner was at the University of New Mexico, and no program has been approved since that time. The course of study undertaken by the Petitioner at the University of New Mexico is not a program with a standard of training comparable to universities having programs approved by the American Psychological Association. Petitioner's program was primarily limited in scope to one specific facet of a general program in psychology, that being school guidance and counselling. Some of the courses taken by the Petitioner included aspects of a general course in psychology, but the courses were not designed to provide a comprehensive background in psychology. The post-graduate programs pursued by the Petitioner prior to her enrolling in the University of New Mexico do not adequately fill the void. Petitioner's course work at the University of Tennessee, and at George Washington University does not provide her with a comprehensive academic background in psychology.
The Issue Whether Respondent, University of Central Florida (“UCF”), engaged in a discriminatory employment practice and/or retaliated against Petitioner, Michael Flint.
Findings Of Fact UCF is a state university located in Orlando, Florida, with an enrollment of about 60,000 undergraduate students and 10,000 graduate students. Mr. Flint is a 71-year-old Vietnam combat veteran who suffers from post-traumatic stress disorder (“PTSD”), chronic fatigue, bipolar disorder, traumatic brain injury (“TBI”), and diabetes. He spent 30 years as a police officer. He graduated from Yale University with a degree in Psychology and, in 2002, obtained a master’s degree in Criminal Justice from UCF. Mr. Flint is currently a full-time instructor at UCF in the Criminal Justice Department and has held that position for over 15 years. In 2006, Mr. Flint learned that some faculty members were taking doctoral classes for free pursuant to a UCF policy. Like other state workers, UCF allowed its employees (and their spouses and children) to take up to six credit hours per semester for free so long as the course had an open seat and did not cost the school money. The privilege also applied to coursework towards a doctoral degree, though employees had to pay for their required dissertation credit hours. Mr. Flint believed that obtaining his doctorate degree would make him a better instructor and ensure he had cutting edge knowledge in his teaching field. But, he understood that pursuing this degree was both completely independent from and secondary to his full-time faculty position. Indeed, UCF neither encouraged nor required him to pursue a doctorate degree, as a condition of continued employment or for training, job security, or advancement purposes. His job as a full-time instructor would remain unaffected by the classes he took. The process for obtaining a doctorate degree is rigorous. First, students must complete their coursework, which often takes about two years, and pass a set of comprehensive exams. Then, they decide on their area of research and choose a dissertation committee, which is typically comprised of five faculty members: a chair, often with expertise in the student’s area of research, and four other faculty members, one or two within the student’s area of research and one or two outside of that area. Next, they draft a prospectus outlining the focus of the research, which has to be approved by and defended before the committee, after which they conduct intense research for about a year. Students then complete their dissertation, which must be approved by and defended before the committee. If successful, they are approved to graduate. Like most universities, UCF follows the seven-year rule, which required all doctoral students to complete their degrees within seven years of admission so as to ensure that the research and coursework does not become stale. Although exceptions could be granted, they are discretionary academic decisions based on the circumstances of the particular student. Exceptions beyond ten years are extremely rare and, of those granted such an exception, only about half ultimately graduated. Understanding that pursuing this degree would be secondary to his full-time job and that he had to complete the process in seven years, Mr. Flint applied for and was accepted into the PAF Program in the College of Health and Public Affairs (“COHPA”). He began his doctoral coursework in August 2006. From 2006 through 2009, Mr. Flint worked full-time teaching five to six courses in the Fall and Spring semesters and three to four courses in the Summer semesters. During this same period, he took about one to two substantive courses towards his degree for free each semester, although he backed off his coursework (with approval from Dr. Thomas Wan, the PAF Program director at the time) for a brief period when his wife was diagnosed with cancer. However, in late 2009, Mr. Flint developed Guillain- Barre Syndrome (“GBS”), which caused him to be hospitalized, placed on life support for almost two months, after which he spent an additional six months at home recovering. While in the hospital, he developed diabetes. He also developed chronic fatigue syndrome, from which he continues to suffer years after his recovery. UCF placed him on administrative medical leave from his teaching responsibilities for Spring and Summer 2010, but he resumed teaching a full course load in Fall 2010 and has continued to do so ever since. As for his doctorate degree, Mr. Flint requested a special leave of absence from CGS, which oversaw all of the graduate programs across the university. CGS granted the request and placed a hold on his enrollment for all of 2010. Mr. Flint returned to taking classes in Spring 2011 and completed his substantive coursework in Fall 2011. Still teaching full-time each semester, Mr. Flint moved on to the comprehensive exam phase of his studies. He studied for those exams in 2012 and passed them after one unsuccessful attempt in Fall 2013. Although the average student finished their coursework and exams in about two years, it took Mr. Flint seven years. While continuing to meet his full-time teaching obligations, Mr. Flint spent 2013 and 2014 trying to conduct dissertation research and prepare his prospectus, now having to pay for those credit hours. His dissertation committee initially consisted of Dr. Bob Langworthy, as chair, and Dr. Matt Matusiak, Dr. Jeff Rosky, and Dr. Sophia Dziegielewski. However, by Fall 2014, Mr. Flint had not yet submitted his prospectus to his committee. Ranetta Guinn, the director of Graduate Affairs for COHPA, met with him because it had been over seven years since he began the program. They created a timeline for finishing his prospectus by March 2015, defending it by May 2015, and defending his dissertation by April 2016. Ms. Guinn explained that he would need to apply for an exception from CGS to extend the deadline to ten years. Unfortunately, around the same time, Dr. Langworthy retired and Mr. Flint had to find a replacement chair for his committee. Dr. Dziegielewski ultimately agreed to serve as the chair, but that required Mr. Flint to find another faculty member in his area of expertise to serve on the committee. Dr. Cory Watkins ultimately agreed. In March 2015, Mr. Flint petitioned CGS to extend the graduation deadline to ten years based on his 2009 GBS diagnosis, chronic fatigue, diabetes, and his disability rating as a combat veteran. He did not inform CGS, or anyone else at UCF, about his PTSD, bipolar disorder, or TBI. Dr. Dziegielewski wrote a letter supporting his petition based on a Summer 2016 graduation. The director of the PAF Program also wrote a supporting letter based on his medical issues and recent setback in having to find a new committee chair. In April 2015, CGS approved the petition and extended the deadline for Mr. Flint to graduate through Summer 2016. The letter noted that no further petitions would be considered. At the time, Mr. Flint believed it was a reasonable accommodation and that he would be able to meet the timeline, but ultimately was unable to do so. He did not defend his prospectus until January 2016, though he was supposed to complete that task by May 2015. He began drafting his dissertation in the Spring 2016 (again, having to pay for those credit hours), but did not timely defend it by May 2016. Notwithstanding, he was permitted to continue working in the hopes he could defend and graduate by the end of 2016. When Mr. Flint had not yet submitted his dissertation in October 2016, he informed Dr. Dziegielewski that he was struggling with his normal workload, periodic illnesses, and chronic fatigue but would try to finish. But he did not petition CGS for another exception. He also failed to notify her or anyone else at UCF about his PTSD or bipolar disorder.2/ Because he ultimately failed to submit even a draft of his dissertation, he received an unsatisfactory dissertation grade for the Fall 2016 semester. In January 2017, CGS dismissed Mr. Flint from the PAF Program. He filed an appeal to be reinstated but the grievance committee, limited to the issue of whether CGS followed proper procedure in reaching its decision, denied relief in March 2017. While his appeal was pending, Mr. Flint submitted a draft of his dissertation. Upon review in March/April 2017, his committee members generally believed that it was almost ready and that he could complete his revisions and defend it in Fall 2017 or Spring 2018 at the latest. However, the PAF Program director confirmed nothing could be done because the draft was not then defensible, no more extensions could be given, and his appeal already had been denied. Notwithstanding his dissertation issues, Mr. Flint met his full-time teaching obligations throughout this period. He never asked for leave or a reduced schedule to have more time to devote to his studies. He taught consistently each summer to earn additional compensation, though doing so was not required, instead of focusing his attention on his studies. Even when his supervisor asked him to take a certification course on top of teaching in Fall 2016, he did not even think to ask if he could delay that course for a semester so he had more time to finish his dissertation. He also could have reduced his teaching load that semester by one course to account for the certification class, but chose not to do so. Mr. Flint was clearly a devoted employee who made his teaching position his main priority. Unfortunately, the combination of putting his studies second and the many medical conditions from which he suffered caused him to fail to meet the extended deadlines and to be dismissed from the PAF Program. Mr. Flint then filed a complaint with the Commission, alleging that UCF wrongfully dismissed him from the PAF Program and retaliated against him based on his age and handicaps. To establish that UCF discriminated against him, Mr. Flint presented the testimony of two other UCF faculty members, Robert Wood, Esquire (62 years old), and Abby Milon, Esquire (59 years old), who believed UCF had taken adverse employment actions against them and other older faculty members relating specifically to their teaching positions, such as reducing their course loads. However, neither of them were in a doctorate program like Mr. Flint and, moreover, their complaints related solely to their jobs as faculty members. Conversely, Mr. Flint suffered no such adverse actions relating to his job as a faculty member. He could not complain about the way UCF treated him in that role, even after he challenged his dismissal from the PAF Program, as that academic decision did not adversely impact his faculty position. He also is still permitted to take up to two courses for free per semester at UCF, just as he was before. Both UCF and Mr. Flint also presented the testimony of several UCF faculty members involved in Mr. Flint’s studies, from his committee members to PAF Program directors to the associate dean of CGS. Every such witness who testified about Mr. Flint’s dismissal confirmed that the decision was based on his failure to meet the agreed-upon extended deadlines and that his age and handicaps, most of which were unknown to the decision makers, had nothing to do it. Though his committee members confirmed that they were supportive of him being given a chance to graduate, they acknowledged that CGS made the final decision, that he had not adhered to the deadlines after they were extended, and that it was quite rare for any student (young or older, healthy or sick) to graduate beyond the ten-year mark.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order finding that Petitioner, Michael Flint, failed to establish that Respondent, University of Central Florida, committed an unlawful employment practice against him and dismissing his Petition for Relief. DONE AND ENTERED this 17th day of June, 2019, in Tallahassee, Leon County, Florida. S ANDREW D. MANKO Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of June, 2019.
Findings Of Fact During October, 1980, the staff of Polk Community College prepared a cost analysis for the 1979-80 school year in accordance with requirements imposed by the State Board of Education. One of the purposes of this annual cost analysis is to allow comparison of costs among community colleges. The cost analysis for the 1979-80 school year indicated that Polk Community College had high instructional costs per full-time student in comparison to other community colleges. The District Board of Trustees of Polk Community College accordingly requested that the college staff conduct further studies to examine the cost effectiveness of the instructional program. These further studies revealed that Polk Community College employs more full-time instructors in various academic fields than there are classes available for the instructors to teach. This situation is the apparent result of a shift in student demand. The psychology grouping of academic subjects is among those which has been overstaffed with instructional personnel at Polk Community College in recent years. When the number of instructional personnel available to teach in the psychology grouping is considered against an optimum class size of thirty- five students and compared to the number of students who actually took courses in the psychology grouping, it is apparent that the psychology grouping had .1 more faculty members than needed for the academic year which began in September, 1977; .8 more instructors than needed for the academic year which began in September, 1978; 1.2 more faculty members than needed for the academic year which began in September, 1979; and 1.8 more faculty members than needed for the academic year which began in September, 1980. Projections for the 1981 academic year indicate that the psychology grouping will again be overstaffed by 1.8 instructors. Overstaffing of instructional personnel such as has consistently occurred in the psychology grouping of academic courses results in several inefficiencies. In order that instructional personnel can carry full course loads as required by law, it is necessary to allow some courses to be taught with fewer students than is considered efficient. Alternatively, faculty members are given special projects to complete in lieu of teaching a course. These special projects have very little value to the community college. Furthermore, by maintaining excessive instructional staffs to teach academic subjects where student demand is decreasing, the college is unable to hire instructional personnel to teach subject areas where student demand is increasing. There has been an increase in student demand for courses in data processing at Polk Community College. The college administration desires to reallocate its resources to provide more faculty members to teach data processing courses rather than courses in psychology for which student demands have decreased. The administration has accordingly recommended to the college's District Board of Trustees that one psychology instructor be terminated. The Respondent, James E. Durant, IV, is a psychology instructor at Polk Community College. The college administration has recommended that his employment be terminated due to the overstaffing in the Psychology Department. In making this recommendation, the administration evaluated the Respondent vis- a-vis other psychology instructors in the following areas: the capacity of the faculty members to meet the educational needs of the community, including consideration of past and anticipated demand for courses and their cost effectiveness, and future curriculum needs; the efficiency of the faculty members as indicated by such factors as professional evaluations; the educational qualifications of the faculty members including their versatility, level of degree, field, and length of service; and whether the faculty members have a continuing contract or annual contract with the community college. The administration concluded that there were no significant differences among instructional personnel in the psychology grouping in the areas of future curriculum needs, educational qualifications and type of contract. This conclusion is supported by the evidence. It does not appear that curriculum needs within the psychology grouping are changing. All of the faculty members in the psychology grouping have either master's degrees or doctorates and have been employed at the community college for a lengthy period. All are on continuing contract. The administration contends that the Respondent is the least cost effective of the psychology instructors and that he has been the least efficient. The administration based its conclusion that the Respondent was the least cost effective of the psychology faculty members through an analysis of weak and cancelled sections that have been taught by psychology faculty members. Weak sections are those classified as having been taught with fewer than fifteen students. Cancelled classes are those for which there was so little student interest that a scheduled course was cancelled. There are several deficiencies with use of a "weak and cancelled section matrix" as a means of determining the cost effectiveness of an instructor. The fact that a class runs weak or must be cancelled can be the result of factors which would reflect favorably upon an instructor. For example, if an instructor develops experimental classes or teaches courses beyond the introductory sort, there is likely to be less demand for the courses, but the courses would have an important function in the community college curriculum. Furthermore, student demand for classes depends to some extent upon factors that are beyond the control of the instructor. Student demand for classes is high, for example, during certain times of the day and low during others. Classes are scheduled by the administration, and not by the instructors. Despite these deficiencies of considering weak and cancelled sections as evidence of poor cost effectiveness, it is appropriate to do that in this instance. For the 1977 through 1981 academic years, the Respondent had a total of 32 weak or cancelled sections. No other faculty member in the psychology grouping had more than 13 weak and cancelled sections during that period, and the four other faculty members combined had only 34 weak and cancelled sections. These figures establish that there is significantly less demand for courses taught by the Respondent than courses taught by other members of the psychology grouping, and that he is therefore the least cost effective instructor within the grouping. The administration's contention that the Respondent is the least efficient instructor within the psychology grouping is supported by the evidence. The Respondent has consistently received the lowest supervisory and student evaluations of instructors within the psychology grouping since the 1975 academic year. Furthermore, there have been more student complaints lodged with respect to the Respondent than for all other members of the psychology grouping combined. The large number of student complaints resulted in remedial action being taken with respect to the Respondent during the 1979 academic year. The Respondent's classes were monitored more closely than is usual, and the number of complaints was reduced for a short period. During the 1980 academic year, however, the large number of student complaints has persisted. Typical student complaints have been that the Respondent is not accessible to answer questions, and that he degrades students by making them wait for inordinate periods outside his office or classroom. While it does appear that the Respondent is trained to teach courses outside of the psychology grouping, it appears that he has taught primarily psychology courses for a number of years. The evidence would not sustain a conclusion that he is qualified to teach in areas where there is a need for instructional personnel. The Respondent has contended that he is qualified to teach mathematics and French; however, there is no competent evidence in the record to support these contentions. The Respondent has contended that inappropriate factors were considered by the administration in recommending that he be terminated. He contends that the reasons given by the administration for terminating him are actually a subterfuge, and that the administration is seeking to terminate him because of the Respondent's political activities, and because of his views on controversial subjects. These contentions are not supported by the evidence.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is, hereby, RECOMMENDED: That the District Board of Trustees of Polk Community College enter a final order accepting the recommendation that the Respondent, James E. Durant, IV, be terminated from his position as an instructor of the community college, and that the Respondent be terminated effective at the conclusion of the 1980-81 academic year. RECOMMENDED this 29th day of July, 1981, in Tallahassee, Florida. G. STEVEN PFEIFFER Hearing Officer Division of Administrative Hearings Department of Administration 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of July, 1981. COPIES FURNISHED: Donald H. Wilson, Jr., Esquire Boswell, Boswell & Conner Post Office Box 1578 Bartow, Florida 33830 Dr. James E. Durant, IV 2605 Reef Court Orlando, Florida 32805 Mr. Frederick T. Lenfestey President Polk Community College 999 Avenue H, Northeast Winter Haven, Florida 33880
The Issue Whether Respondent discriminated in its hiring practices against Petitioner because of his race, and whether Respondent retaliated against Petitioner because he filed a charge of discrimination, and a complaint.
Findings Of Fact On or about October 2000, Petitioner filed a Charge of Discrimination with the FCHR. (The Charge of Discrimination was FCHR No. 2101775). Thereafter, on or about May 3, 2001, Petitioner filed an Amended Charge of Discrimination (attached to Petition for Relief filed on July 17, 2002). The essence of the Amended Charge was that he had been discriminated against on the basis of race because whites were employed in positions for which he had applied. Petitioner also alleged retaliation and claimed that after he filed his initial Charge of Discrimination, he was not rehired by Respondent as an adjunct instructor and he was denied compensation. The Commission conducted an investigation and on June 4, 2002, issued a Determination: No Cause. The Commission found that there was "no reasonable cause to believe that an unlawful employment practice has occurred." On the same date, the Commission also issued a Notice of Determination: No Cause, in which it advised Petitioner of his right to request an administrative hearing by filing a Petition for Relief within 35 days of the Notice. Petitioner was also advised that if he failed to request an administrative hearing within 35 days "the administrative claim under the Florida Civil Rights Act of 1997, Chapter 760, will be dismissed pursuant to Section 760.11, Florida Statutes (1992)." Petitioner did not file his petition for relief until July 17, 2002, 43 days after the date of the Notice of Determination. In his Petition for Relief, Petitioner claimed that he had been denied full-time employment by Respondent since 1998, and when complaints were filed, Respondent retaliated against him by not rehiring him as an adjunct instructor and denying him unemployment compensation. Petitioner is an African-American male. He received a bachelor of science in mathematics education from Tuskegee University in 1967; a master's degree in business management from Rollins College in 1976; and, a Doctor of Education degree from the University of Central Florida in 2000. Petitioner worked in private industry in Central Florida during the period 1972-1992. During portions of that time, he also worked as an adjunct instructor at Valencia Community College, Florida Southern, and Phillips College. He was employed full-time as an instructor at Brevard Community College from 1992-1996. From 1996 to 1998 he taught at Evans High School in Orlando where he also served as the assistant football coach. Petitioner also taught mathematics and science classes to fifth to eighth grade students at Madison Middle School for part of the 1998/1999 school year. In 1998, Petitioner began teaching as an adjunct instructor at North Florida Community College (College). The College is located in Madison, Florida. It serves the six counties of Hamilton, Madison, Jefferson, Suwannee, Lafayette, and Taylor. The College's district is, geographically, the largest community college district in Florida. Respondent offers a variety of programs ranging from its college transfer program with an associate of arts (AA) or associate of science (AS) degree to two vocational certificate programs. Total enrollment varies from 3,000 to 4,000, depending on vocational enrollments which are demand-based. The current FTE (full-time equivalency) is just under 800. Classes are taught at the campus in Madison and at public high schools in each of the six counties in the service district. Approximately 72 percent of the population of the district is white and 28 percent is non-white. Enrollment at the College mirrors to a large extent the population of the district, except in the college transfer program, where the African-American enrollment is approximately 20 percent, white enrollment is 75 percent, and other groups, including Hispanics, comprise five percent of the students. The Hispanic population of Respondent's six-county district has increased from 1,699 or 1.92 percent of the population in 1990, to 5,019 or 4.73 percent of the population in 2000. This represents a 195 percent increase. Statewide, Florida's Hispanic population grew by 70 percent during the same period. Search committees are appointed by the president of the College and efforts are made to ensure that a member of Respondent's equity committee and a minority, if at all possible, are assigned to each committee. A search committee was appointed by Respondent for each of the applications at issue in this case. Each search committee was charged with reviewing the applications which met the minimum qualifications for each position and then determining the most qualified individuals to be interviewed. After the interviews, the search committee was to recommend the best qualified individual to be offered the position. Search committees are not told to interview individuals of a particular race or gender, but they are encouraged to give special consideration to minorities. If the top two applicants are equal in terms of qualifications and one is a minority candidate and the other is not, they are told to recommend the hiring of the minority applicant over the non-minority. There are 23 full-time instructors in the AA and AS degree programs at the College. Four of those are math instructors. In 1998, Petitioner applied for a position as a full-time mathematics instructor. There were no vacancies in the mathematics department at that time, nor has there been a vacancy for a full-time mathematics instructor at the College at any time since 1991. In 1998, Respondent advertised for an instructor to teach computer science courses in the Business Department. The courses were designed to develop basic computer operation skills, and focused primarily on Microsoft Office Suite software. At the hearing, Petitioner introduced a copy of a letter which was sent to Mr. Doug Brown, a college administrator, in July 1998. In the letter, Petitioner stated that he was "applying for a position in the business or education disciplines." Petitioner discussed his private sector employment experience and his college-level teaching experience, but did not state whether he had any computer science teaching or work experience. The computer science vacancy was filled by a white female who had a master's degree in business and 18 graduate hours in computer science. She had been an adjunct computer science instructor at the College for two years prior to being hired as a full-time instructor. She also taught computer science courses at Madison High School, and she had her own computer business. In 1999, Respondent advertised for the position of program administrator for the North Florida Workforce Development Board. At the time, Respondent was the administrative entity and fiscal agent for the Workforce Development Board. Petitioner applied for the position. None of the applicants were interviewed and the position was never filled because it appeared that Respondent was going to be replaced as administrative entity and fiscal agent, which, in fact, occurred. In December 1999, Respondent advertised to fill the position of project coordinator for the College Reach Out Program (CROP). The program targets economically and educationally disadvantaged youth enrolled in grades 6-12 in the schools in Respondent's service district, who have the potential to finish college but who are likely, without intervention, to drop out of high school. The goal of the program is to keep the students in high school, get them to graduate, and enroll in college. Requirements for the position of project coordinator included a bachelor of arts degree from a four-year college or university and three years of experience working with alternative education programs, at risk youth, or teaching in a youth program department. Approximately 30 persons, including Petitioner, applied for the position of CROP coordinator. A five-member search committee was appointed to review the applications and select individuals to be interviewed. The members of the search committee included Amelia Mulkey, who at the time was Respondent's Director o f Financial Aid, Purchasing and Reports; Mary Anne Wheeler, Director of Student Support Services; and Clyde Alexander, an African-American who is Respondent's athletic director and equity coordinator. After reviewing the applications, the search committee selected five individuals, including Petitioner and Nancy McClellan, to be interviewed. When the interviews were completed, the search committee chose not to rank the applicants. Instead the members unanimously recommended Nancy McClellan for the position. Nancy McClellan was a white female with a bachelor's degree in psychology and a master's degree in social work. A major factor in the selection committee's decision was her ten years of experience working with at-risk adolescents at DISC Village in Leon County, Florida, where she coordinated a comprehensive vocational services program. Her work at DISC Village included assessment, case management, community networking, career exploration, providing employability skills classes, coordinating with education and training providers, grant work, supervising staff, and counseling with parents. In September 2001, Respondent advertised for a case manager for the College Reach Out Program (CROP) in Lafayette and Suwannee Counties. The qualifications for the position were identified as a bachelor's degree in secondary education, social work, or the social services field, with the provision that working with at-risk youth could substitute for education on a month-by-month basis. Case managers are responsible for implementing the CROP programs in the counties to which they are assigned. They market, recruit, and provide services to students in the counties. They work closely with teachers, guidance counselors, students, and parents to enroll the students in the program and to ensure that the students remain in school and graduate. The case managers work with the students on a one-to-one basis. Experience has shown that a social work case management background is an important asset in a CROP case manager in Respondent's district. Students recruited for CROP have a multitude of family issues in their family lives which impact on their ability to remain in school. These include poverty, abuse, neglect, divorce, mental health, and disability issues, all of which social workers are taught to identify, assess, and address. Case managers also educate parents of students regarding available financial aid and college preparation courses which their children should be taking. Eight people, including Petitioner, applied for the position. Two individuals, Lynn Waller and Cheryl Chandler, were interviewed. Lynn Waller was selected for the position. She has a bachelor's degree in social psychology. At the time she was selected, she had been employed as a children's case manager at Apalachee Center for Human Services, working with students in the Madison County School System. She was responsible for recruiting students, working with them, their parents, teachers, and guidance counselors to assess needs, perform psychological assessments, and coordinate same. In his application, Petitioner stated that he had been employed as the CROP Coordinator by Respondent and by Brevard Community College. In fact, Petitioner had never been employed as the CROP Coordinator by Respondent or by Brevard Community College. Petitioner had been employed as one of four part- time facilitators by Respondent from January through June 2000. His duties were to recruit students, organize them into groups, meet with the groups two days per week and schedule one Saturday field trip per month. Nancy McClellan elected not to interview Petitioner for the case manager position, based upon her experience with Dr. Brown as a CROP field facilitator in 2000. When Nancy McClellan assumed her role as CROP Coordinator, Petitioner had not recruited any students from Suwannee County. Eventually, he recruited a total of eight students for CROP. By contrast, in April 2000, Lafayette County had 23 students, Taylor County had 15, and Madison County had 35 students. While Petitioner was case facilitator for Suwannee County, Nancy McClellan received complaints from Suwannee County regarding Petitioner's failure to bring application forms to the County's schools, to pick them up when they had been filled out, and to attend scheduled meetings with students. Petitioner also failed to take the eight students who enrolled in the program on any field trips. By contrast, the other field facilitators were taking the students on regular field trips which was an important part of motivating students to stay in school. In June 2001, Respondent advertised for two positions: learning resource coordinator and transfer advisor. Both were grant-funded positions. The learning resource coordinator is the manager of the tutoring lab for developmental students. These are students who do not have the placement test scores to begin college level work. In the lab they receive assistance in developing their skills in mathematics and English. The learning resource coordinator supervises the transfer advisor, who works with students in developing skills in English, and the retention advisor, who works in developing students' mathematics skills. The learning resource coordinator also supervises and trains tutors, peer mentors, and does some individual tutoring. In addition to the requirement for a four-year degree, the advertisement for the position stated that language proficiency in Spanish was preferred. The preference for Spanish proficiency was based upon the growing Hispanic population on Respondent's campus and the need for a staff person who could tutor the students in their own language, as well as to speak with the families who often accompany them to campus. Experience had shown that Hispanic students were better able to grasp concepts, as in mathematics, when they received tutoring in their native language. There were 18 applicants for the position of learning resource coordinator, among them Petitioner. Petitioner was not selected to be interviewed by the search committee because he did not have proficiency in Spanish. The three individuals who were chosen to be interviewed were proficient in Spanish: two were native Spanish speakers and one had a degree in Spanish. Maria Elizabeth Gonzalez was selected to fill the position. She was a native of Colombia and a native Spanish speaker. She identified herself on her application as Hispanic. At the time she was selected, she had been working for the previous three years as a tutor and as a lab assistant. The transfer advisor position is a grant-funded advisor position in the tutoring lab for developmental students. The transfer advisor works with developmental students in English; the retention advisor works with those students in mathematics. The advertisement for the transfer advisor listed as one of the qualifications a bachelor's degree with an emphasis in English. There were 20 applicants for the Transfer Advisor position. Petitioner was one of the applicants. Four individuals were chosen by the selection committee to be interviewed; all had an undergraduate degree with an emphasis in English. Petitioner was not chosen to be interviewed because his degree did not have an emphasis in English. Carmen Renee Perez was selected to fill the position. She had a bachelor's degree in English and two years of graduate work in English. She had also taught English as a second language. On her application she identified herself as Hispanic/Cuban/Caucasian. In March 2000, Respondent advertised to fill the position of instructor of business and economics. The advertisement stated that the duties of the position would include teaching courses in business, management, accounting, finance, business law, and economics. The minimum requirements included an MBA from an accredited institution or a master's degree with a minimum of 18 semester hours of subject specific graduate course work. There were between 20 and 30 applicants for the position. The search committee chose to interview five of the applicants. Among them were Petitioner; Ellen Stevens, a white female; and Scott Tori, a white male. Following the interviews, the search committee concluded that Dr. Brown had "great math credentials," but his business and economics credentials "were considerably less" than some of the other applicants. The committee concluded that both Ellen Stevens and Scott Tori were better qualified than Petitioner for the position. Ellen Stevens had a masters in business administration, and Scott Tori had a doctorate in economics. Scott Tori was offered the position and he accepted. In addition to his Ph.D., he had a master's degree in economics, and a bachelor's degree in business administration, with an emphasis in finance. At the time he was hired, Tori was an assistant professor of economics and finance at Thomas University. In the late winter of 2002, Respondent advertised to fill a vacancy caused by the retirement of the chemistry and physics instructor. The advertisement stated that the successful candidate would teach chemistry courses through the sophomore level, a year-long organic chemistry sequence, an algebra and calculus-based physics course sequence, and physical science courses, as needed. Petitioner submitted a letter application to Respondent dated March 2, 2002, for a "mathematics/physics/science instructor" position. This was not the title of the open position. In his letter, Petitioner identified himself as a "professor of mathematics." Petitioner was considered for the position but not selected. Terrence M. Zimmerman was determined by the search committee to be the best qualified to fill the position. He had a bachelor's degree in chemistry cum laude, a master's degree in science education, and all but a dissertation for a doctorate in chemistry. He had been an adjunct instructor in chemistry at Tallahassee Community College, an adjunct in chemistry and environmental science at Santa Fe Community College and, at the time he was hired, he was teaching chemistry and environmental science for Respondent as an adjunct. From 1988 until the time he was hired, he also taught chemistry, environmental science, and general science at Taylor County High School in Perry, Florida. Respondent presented credible evidence for each of the positions for which Petitioner applied establishing a non- discriminatory reason for Respondent's decision to hire someone other than Petitioner. In 1998, Petitioner began teaching mathematics courses for Respondent as an adjunct instructor (Adjunct). Adjunct instructors (Adjuncts) are part-time faculty members who are hired by Respondent on a semester-by-semester basis to teach specific classes in subjects in which they are qualified to teach. Adjuncts teach classes at various locations throughout Respondent's six-county district. They are employed on an as-needed basis and execute a new contract for each semester they are hired. Each semester, Respondent publishes a class schedule for the following semester. If Respondent has confirmed that a particular adjunct is going to be teaching a particular class, the adjunct's name will appear on the schedule. If an adjunct has not been confirmed to teach a particular class, the designation of the instructor for that class will appear as "staff." Petitioner was identified by name on the class schedule for one class each in the Spring and Fall of 1999, two classes in the Spring of 2000, and one class in the Fall of 2000. He taught classes in which the name of the instructor appeared on the class schedules as "staff" as follows: one class in the Fall of 1998, two classes in the Summer of 2000, and two classes in the Fall of 2000. The department chair has the discretion to determine which individuals will be hired to teach as adjuncts. Generally, if there is an adjunct who is local, competent, and willing, he or she will be rehired. There is no prescribed procedure for contacting adjuncts. Sometimes the adjuncts contact the department chair; sometimes the department chair contacts the adjuncts. In the Fall semester of 2000, David Proctor, a history professor, was department chair for Respondent's entire AA program. In addition to teaching three classes, one of which was in Hamilton County, he was responsible for scheduling full-time faculty instructors and 34 adjuncts to teach courses in the AA program. He was also responsible for preparing budgets for each department, evaluating faculty, and preparing class schedules. David Proctor intended that Petitioner would teach some of the introductory and intermediate algebra and developmental arithmetic classes during the 2001 Spring Semester. He did not hear from Petitioner in the Fall of 2000 regarding Petitioner's interest in teaching for the 2001 Spring Semester while he was preparing the schedule for the semester; therefore, he used the term "staff" in place of the instructor's name for four classes, intending that Petitioner would teach some of them. In October 2000, after the schedule for the Spring 2001 semester was published, Petitioner approached Proctor on the sidewalk outside the general classroom building on Respondent's campus and asked why his name was not in the schedule. Proctor assured Petitioner that he had every intention of having Petitioner teach during the Spring semester and suggested that they meet and decide what classes Petitioner would teach. Proctor was subsequently unable to meet with Petitioner as scheduled, so he left a note for Petitioner in which he highlighted classes on the schedule and asked Petitioner to tell him which two classes he would like to teach. This occurred in late October or early November. In December 2000, Proctor saw Petitioner outside Proctor's office in the adjunct mailbox area on campus and remembered that he had not heard from Petitioner regarding Petitioner's choice of classes to teach during the Spring semester. Proctor approached Petitioner and suggested they look at the schedule together and identify the classes Petitioner wanted to teach. Petitioner informed Proctor that he was looking elsewhere for employment and he would not be teaching for Respondent. Proctor was surprised, but wished Petitioner well and offered to write letters of recommendation for him. When Petitioner informed Proctor that he did not intend to teach for Respondent, Proctor asked a Hispanic adjunct instructor, Ephraim Bonilla, to pick up these additional courses. The only subsequent contact Petitioner made with Respondent regarding teaching again as an adjunct was a single telephone call at an unspecified date to the new mathematics department chairman, Mr. Harris, during which Petitioner inquired if there were any courses available. Harris told him there were none. Petitioner asked another individual to call with the same question. The individual Petitioner asked to call reported to Petitioner that he had met with the same response. When he prepared the schedule for the Summer of 2001, Proctor assumed that Petitioner was no longer interested in teaching for Respondent, and when he did not hear from him, he did not put his name in the schedule. When Proctor prepared the schedule for the 2001 Spring semester he was unaware that Petitioner had filed a charge of discrimination with the Commission. He was aware of it by the time he prepared the schedule for the Summer of 2001, but that knowledge played no role in his decision not to list Petitioner by name as an adjunct instructor when he prepared the class schedule for the Summer of 2001. Petitioner filed a claim for unemployment compensation benefits effective December 17, 2001, because he was not employed by the College as an adjunct instructor during the 2001 Spring semester. When Respondent received a copy of Petitioner's claim for unemployment compensation, Respondent's Director of Human Resources, Bill Hunter, spoke with David Proctor and learned from him that Petitioner had rejected the opportunity to teach during the 2001 Spring Semester. Bill Hunter provided this information on Respondent's copy of the claim and returned it to the Agency for Workforce Innovation. Petitioner's claim for unemployment compensation was subsequently rejected by state officials and he appealed. Following a telephone hearing during which David Proctor and Petitioner testified, the appeals referee concluded that Petitioner had refused Respondent's offer of an adjunct teaching position for the 2001 Spring Semester and, therefore, was properly barred from receiving unemployment compensation benefits. Petitioner subsequently sought review by the Unemployment Appeals Commission, which affirmed the decision of the appeals referee. In August 2000, Petitioner, and several other college employees, filed a complaint against Respondent with the U.S. Department of Education, Office for Civil Rights (OCR), alleging that Respondent was discriminating against students on the basis of race with regard to recruitment and financial aid. The complaint also alleged that Respondent was discriminating on the basis of race in its hiring practices. In a letter dated September 13, 2000, OCR notified Respondent's former president, Dr. Beverly Grissom, of the Complaint. In an attachment to the letter, OCR advised Dr. Grissom that "OCR does not reveal the name or other identifying information about an individual unless it is necessary for the completion of an investigation or for enforcement activities against an institution that violates the laws, or unless such information is required to be disclosed under the FOIA or the Privacy Act." OCR subsequently determined that there was insufficient evidence to support the student financial aid and recruitment allegations. OCR also determined that there was no statistically significant difference between the number of African-American administrators and faculty members actually employed and the expected employment rate based on the relevant labor market. OCR, therefore, concluded that it lacked jurisdiction to further investigate the matter. Finally, OCR referred the individual employment allegations in the complaint to the U. S. Equal Employment Opportunity Commission because it did not have jurisdiction over such claims. Consistent with its September 13, 2000, letter to Dr. Grissom, OCR did not identify the individual complainants, and Respondent was not otherwise aware of this until the hearing in this case that Petitioner had been one of the complainants. Respondent's decisions with regard to filling the vacancies for which Petitioner applied were not based on race, nor were they based on any retaliatory motive. Respondent's decision regarding the absence of Dr. Brown's name from the Spring 2001 class schedule was not based upon a retaliatory motive, nor was there a retaliatory motive involved in informing the unemployment compensation office that Petitioner had refused the offer of a position as an adjunct instructor for the 2001 Spring Semester.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Florida Commission on Human Relations enter its final order dismissing the case. DONE AND ENTERED this 12th day of December, 2002, in Tallahassee, Leon County, Florida. __________________________________ STEPHEN F. DEAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of December, 2002.
The Issue The issue in this case is whether the Petitioner is eligible for licensure by examination, with waiver of the national examination, as a psychologist in the State of Florida. Specifically the issues for determination are: Whether the Petitioner has a Ph.D. in psychology from the University of Toledo, or received a doctoral-level psychological education as defined in Florida Statutes; Whether the Petitioner's Ph.D. was obtained from a program comparable to an the American Psychological Association (APA) accredited program; and Whether the Petitioner's internship met the requirements of experience in association with or under the supervision of a licensed psychologist as identified in Florida Statutes and the Florida Administrative Code.
Findings Of Fact Ilene R. Berson (Petitioner) received a Master of Education degree with a major in school psychology from the University of Toledo, in Toledo, Ohio, on or about August 25, 1990. The Petitioner received a Ph.D. from the University of Toledo on or about June 14, 1997. The doctoral program completed by the Petitioner at the University of Toledo was not accredited by the American Psychological Association (APA) at the time of her attendance, and remained unaccredited at the time of this hearing. The APA does not accredit the Petitioner's doctoral internship program. The Petitioner has not enrolled in any program to augment her education since the award of her Ph.D. in 1997. In June 1998, the Petitioner applied for licensure as a Florida psychologist by examination with waiver. The Petitioner has taken and passed the EPPP exam, a national psychology licensure exam. On or about March 2, 1999, the Board of Psychology (Board) issued a Notice of Intent to Deny Application for Licensure. In order to be eligible for licensure as a psychologist in Florida, an applicant must have a doctoral-level degree in psychology or an appropriate equivalent. The Petitioner does not have a Ph.D. in psychology. According to the Petitioner's college transcript, the Petitioner earned a Ph.D. in Education with a major in "Guidance and Counselor Education." According to the Petitioner's application for licensure as a psychologist, the Petitioner earned a Ph.D. in Guidance and Counseling Education with a school psychology concentration. There is evidence that the University of Toledo doctoral program completed by the Petitioner awarded degrees in "school psychology" and in "counselor education." Letters from University officials suggest that, despite the transcript's identification of her degree, the Petitioner's degree is in school psychology. Assuming that assertions related to the title of the Petitioner's degree are correct, the Petitioner has a Ph.D. in school psychology. The award of degrees and licensure in school psychology and general psychology involve separate courses of study and differing types of practice. Florida law provides for specific licensure of school psychologists. The evidence fails to establish that the Petitioner has a Ph.D. in psychology. Because the Petitioner's Ph.D. is not in psychology, the Petitioner must establish that she received a "doctoral- level" psychological education, as the term is defined by statute. The applicable statutory definition requires that her degree be granted by an accredited institution, and that her education be provided through an accredited program. The North Central Association of Colleges and Schools accredits the University of Toledo, an accrediting agency recognized and approved by the U.S. Department of Education. The APA does not accredit the psychology program at the University of Toledo. The APA is the only agency recognized and approved by the U.S. Department of Education to accredit doctoral programs in psychology. Because the University of Toledo does not have programmatic accreditation, the Petitioner must demonstrate that the psychology program at the University of Toledo is comparable to an APA-accredited program. As part of her application, the Petitioner submitted a comparability letter from Dr. Janet Graden. Dr. Graden is the director of the APA-accredited doctoral program in school psychology at the University of Cincinnati. Dr. Graden opined in her letter that based upon a review of the University of Toledo School Psychology Program Handbook and a review of the Petitioner's transcript, the Petitioner's doctoral program of study at the University of Toledo was comparable to the school psychology doctoral program at the University of Cincinnati. A school psychology program is not the equivalent of a psychology program. The Graden letter is insufficient to establish that the University of Toledo's psychology program is comparable to an APA-accredited psychology program. The Petitioner also offered the deposition testimony of Dr. George Batsche and Dr. Thomas Oakland in support of the assertion that the University of Toledo program was comparable to an APA-accredited program. In response, the Board offered the deposition testimony of Dr. Russell Bauer. Based upon review of the deposition testimony, the testimony of Dr. Bauer is persuasive and is credited. Dr. Oakland also submitted a comparability letter at the time of his post-hearing deposition. Dr. Oakland's letter states that he believes the Petitioner's "academic and professional experiences in conjunction with the . . . program from the University of Toledo together with her other professional experiences result in her being comparable to graduates of [Dr. Oakland's program at the University of Florida.]" According to Dr. Oakland's curriculum vitae, he is currently the director of the school psychology program at the University of Florida. Dr. Oakland's letter fails to establish that the doctoral program completed by the Petitioner is comparable to an APA-accredited program in psychology. Dr. Oakland's letter states only that the Petitioner is comparable to a graduate of the University of Florida program. The comparability of program graduates is not at issue in this proceeding. The greater weight of the credible evidence establishes that the University of Toledo doctoral course of study completed by the Petitioner is not comparable to an APA-approved doctoral program in psychology. Review of the Petitioner's transcript and course materials indicates that the coursework completed as part of the doctoral program at the University of Toledo is not comparable to an APA-approved psychology doctoral program. Dr. Bauer testified as to the factors considered by the APA in determining whether a program meets the minimum requirements for accreditation. Dr. Bauer opined that the University of Toledo program would likely not meet the minimum requirements for APA accreditation. Dr. Bauer reviewed the APA accreditation requirements and the University of Toledo doctoral program completed by the Petitioner. Dr. Bauer specifically addressed the coursework completed by the Petitioner as part of her doctoral program. Dr. Bauer opined that the University of Toledo program is not comparable to an APA-accredited program. Dr. Bauer's testimony is credited. Another requirement of Florida law for licensure as a psychologist is completion of appropriate internship and residency programs, each of at least 2,000 hours, for a total experience requirement of at least 4,000 hours. The evidence fails to establish that the Petitioner has completed the appropriate experience requirement. The evidence fails to establish that the Petitioner completed an appropriate 2,000-hour internship program. The Petitioner's application for licensure indicates that she interned with Dr. Jerome Zake, Dr. Constance Dorr, and with the Toledo public school system from September 8, 1990 through August 30, 1992. The application indicates that the internship included one and one-half hours of clinical supervision per week, and "at least" one hour of individual clinical supervision per week, and states a total number of hours at 1,580. The majority of the Petitioner's internship time was spent in a school setting: two elementary schools, a middle/high school, and a center for emotionally handicapped children. The public school internship was not APA accredited. The total number of hours of the Petitioner's internship is substantially less than 2,000. According to Dr. Zake, his supervision of the Petitioner extended from September 8, 1990 to August 30, 1992. Dr. Zake's submission to the board states that the Petitioner worked for him for a total of 250 hours in addition to her public school work. Dr. Zake's supervision included weekly half-hour meetings with the Petitioner. Dr. Zake indicates that all of the Petitioner's time was spent in evaluation, measurement and assessment of intellectual ability, aptitudes, or achievement that directly relates to learning or behavioral problems in an educational setting. Although the Petitioner disputes the information provided by Dr. Zake as to this point, there is no credible evidence to support her assertion that her work was other than as reported by Dr. Zake. According to Dr. Dorr, her supervision of the Petitioner extended from August 1991 to June 1992 while the Petitioner interned with the Toledo public school system. Dr. Dorr's submission to the board states that the Petitioner worked for a total of 1,330 hours as a "school psychologist intern." Dr. Dorr's supervision included twice-weekly one-hour meetings with the Petitioner. Dr. Dorr indicates that approximately one-half of the Petitioner's time was spent in evaluation, measurement and assessment of intellectual ability, aptitudes, or achievement that directly relates to learning or behavioral problems in an educational setting. Although the Petitioner disputes the information provided by Dr. Dorr as to this point, there is no credible evidence to support her assertion that her work was other than as reported by Dr. Dorr. Dr. Dorr was the Petitioner's primary supervisor during the internship. Dr. Dorr is unlicensed, and is not a member of the University of Toledo faculty. Dr. Zake is a licensed psychologist in Ohio, and was an adjunct faculty member of the University of Toledo. The evidence fails to establish that the Petitioner's internship complies with applicable requirements for licensure as a psychologist in Florida. Another Florida requirement for licensure as a psychologist is a 2,000-hour post-doctoral residency experience. In the license application, the Petitioner indicates that she worked as an "evaluator/therapist" from December 13, 1994 to June 16, 1998, with Psychology Associates of Mt. Pleasant, South Carolina, under the supervision of Dr. Lucia Horowitz. The Petitioner received her Ph.D. in June 1997. Therefore, according to the information set forth on the application, a substantial portion of the Petitioner's residency was completed prior to receipt of her doctoral degree. The application indicates that her position as an evaluator/therapist included 20 hours weekly for 156 weeks. The application states that her work included one hour of clinical supervision per week, and one hour of individual clinical supervision per week, and states the total numbers of hours at 3,120. According to Dr. Horowitz, her supervision of the Petitioner extended from June 15, 1997 to June 19, 1998. Dr. Horowitz reports that the Petitioner completed supervised experience of at least 2,000 hours in the year of her residency, including at least 900 hours in service-related experience, at least two hours of clinical supervision per week, and at least one hour of individual supervision per week. Dr. Horowitz identifies the location of the residency as "Psychology Associates of Mt. Pleasant" and "Lowcountry Children's Center." According to the Horowitz submission, the Lowcountry Children's Center is located in Charleston, South Carolina. The Petitioner's application for licensure does not identify the Lowcountry Children's Center as the site of a portion of her residency. The evidence fails to establish that the Petitioner's residency meets the requirements of law applicable to application for licensure as a psychologist in Florida.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Board of Psychology enter a final order denying the Petitioner's application for licensure by examination as a psychologist in Florida. DONE AND ENTERED this 16th day of February, 2000, in Tallahassee, Leon County, Florida. WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of February, 2000. COPIES FURNISHED: Betsy S. Singer, Esquire Paul & Singer, P.A. First Union Center 100 South Ashley Drive, Suite 1720 Tampa, Florida 33602 Donna Erlich, Esquire Office of the Attorney General Administrative Law Section The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 Angela T. Hall, Agency Clerk Department of Health Bin A02 2020 Capital Circle, Southeast Tallahassee, Florida 32399-1701 Pete Peterson, General Counsel Department of Health Bin A02 2020 Capital Circle, Southeast Tallahassee, Florida 32399-1701 Dr. Kaye Howerton, Executive Director Board of Psychology Department of Health Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0750
The Issue The issue is whether the School Board has just cause to terminate Respondent’s employment.
Findings Of Fact Respondent has worked for the Polk County School District (District) in various capacities –- e.g., classroom teacher, physical education instructor, dean of students, assistant principal –- for the past 20 years. Respondent has been an assistant principal for the past 11 years, and at the time of the suspension giving rise to this proceeding, he was an assistant principal at Homer K. Addair Career Academy. Respondent has a Master’s degree in educational leadership from Nova Southeastern University (Nova), and he is certified in that field by the Florida Department of Education (DOE). Respondent is in the District’s “principal pool,” which is the program from which principals are selected for the District’s schools. He has also served as a “teacher recruiter” for the District. Respondent and another assistant principal, Jennifer Dean, started talking about pursuing doctorate degrees together at some point between the summer of 2004 and April 2005.1 Respondent and Ms. Dean are neighbors and close friends. They attend the same church, and their families regularly spend time together. Ms. Dean is the Respondent in the related DOAH Case No. 06-0683. The primary reason that Respondent and Ms. Dean were interested in obtaining doctorate degrees was to enhance their standing in the principal pool so as to give themselves a better chance of being hired as school principals.2 Respondent also believed that a doctorate degree would help him get a teaching position at a college or university. Respondent and Ms. Dean credibly testified that they were unaware that they would be eligible for $1,750 pay supplements from the District if they had doctorate degrees. Respondent and Ms. Dean looked into the doctoral program at Nova and several other traditional universities in the area, but they determined that those programs were not suitable for their needs because of the cost of the programs and the time that it would take them to obtain degrees. Respondent looked into several online universities that offered doctoral degrees, including Belford University (Belford). He learned about Belford through a “pop up” advertisement while he was browsing on the Internet. In September 2005, Respondent sent Ms. Dean an e-mail referring her to Belford’s website and told her that “I think this may be the program for us.” Belford is described on its website as a “virtual university with administration offices located in Humble, Texas,” and according to the website, Belford is accredited by “two renowned accreditation agencies on-line education, namely the International Accreditation Agency for Online Universities (IAAOU) and the University Council for Online Education Accreditation (UCOEA).” Notwithstanding Belford’s accreditations and its characterization of itself as a “virtual university,” Belford’s website includes a number of statements that call into question its legitimacy as an educational institution, such as: “Get a degree for what you already know!”; “No admissions. No attendance. No hassle.”; “Add degrees to your resume in just 7 days and open avenues to promotion and better jobs!”; and “Get all your money back if you do not get approved!” The website explains that to obtain a doctorate degree from Belford, an applicant must have “at least 8 years of work or life experience relevant to [his or her] desired major.” That eligibility requirement “may be satisfied in any of the following ways: prior job experience in any field; previous educational achievements; employer-sponsored training and attendance of workshops; participation in organizations, both professional and non-professional; personal goals, lifestyle, hobbies, and travel; participation in volunteer activities and community service; and independent reading, viewing, listening or writing.” A doctorate degree can be received from Belford “without attending classes or taking admissions anywhere.” Respondent reviewed the information on Belford’s website, and he also contacted Belford by phone to get additional information about its doctoral program and its accreditation status. When he called Belford, Respondent was told that its degrees were accepted “worldwide” but he was told that information as to whether Belford’s degrees were accepted in Florida was “confidential.” Ms. Dean told Respondent that she contacted Lois Schuck, the District’s certification specialist, regarding whether a doctorate degree from Belford would be accepted for certification purposes. Respondent did not have any direct communications with Ms. Schuck on the issue. Respondent relied on Ms. Dean’s representation that Ms. Schuck told her to go ahead and get the degree from Belford and then submit it for a determination as to whether it would be accepted for certification purposes. However, as detailed in the Recommended Order in DOAH Case No. 06-0683, the evidence was not persuasive that Ms. Schuck actually gave Ms. Dean that advice. On or about November 10, 2005,3 Respondent applied for a doctorate degree from Belford by filling out the form on Belford’s website. In the boxes provided on the form, he entered information detailing his education, work, and other life experiences. The information Respondent provided to Belford included his resume, a five-page summary of his life experiences, and the materials that he put together as part of the application process for the principal pool. He did not submit transcripts or other official evidence of his Bachelor’s or Master’s degrees to Belford. Respondent did not attend any classes at Belford, nor did he prepare or defend a dissertation in order to obtain his doctorate degree from Belford. He received the degree based solely on the package of information described above. Respondent testified that the information that he submitted to Belford to obtain his degree accurately reflected his education, work history, life experiences, and other qualifications. The School Board offered no evidence to the contrary and, indeed, its witnesses acknowledged that they had no reason to believe that the information Respondent submitted to Belford was inaccurate.4 Respondent obtained the base-level doctorate degree, which according to Belford’s website costs $549. The degree was issued to Respondent within two weeks of the time that he applied for it, and Respondent was not required to pay for the degree until he was advised by Belford that he would receive the degree based upon the information submitted. A traditional doctorate degree, such as a Ph.D., takes several years to receive, costs thousands of dollars, and involves extensive coursework as well as the preparation and defense of a lengthy dissertation. Respondent’s “official transcript” from Belford reflects that he was awarded a Doctor of Arts degree with a major in educational administration on November 10, 2005. The transcript makes no reference to the fact that the degree was based upon “life experiences” rather than a traditional course of study. Respondent’s transcript includes a grade point average (GPA) of 3.18. Unlike Ms. Dean, Respondent was not interested in a higher GPA, which cost more money. Respondent’s transcript lists eight courses with specific grades -- from “A” to “C+” -- awarded for each course. Respondent testified that he did not attend those courses, and that it was his understanding that the grades shown on the transcript were based upon the information that he submitted to Belford, which reflected the extent of his experience in the areas identified in the course descriptions. On November 29, 2005,5 Respondent and Mr. Dawson met with Ms. Schuck to give her copies of their Belford transcripts for certification purposes. Ms. Schuck was unable to process the transcripts for certification purposes at that time because they did not include the date that the degrees were awarded. She handed the transcripts back to Respondent and Ms. Dean during the meeting and advised them to get her dated transcripts.6 Respondent and Ms. Dean obtained dated copies of their transcripts from Belford, and Ms. Dean sent them to Ms. Schuck through interoffice mail. Ms. Dean testified that she called Ms. Schuck to confirm that she received the degrees and to check on their status. Ms. Dean testified that Ms. Schuck told her that she had received the degrees and that she had given them to Ms. Butler for processing. Ms. Dean passed that information along to Respondent. Ms. Dean’s testimony regarding her conversation with Ms. Schuck was not persuasive. Indeed, the more persuasive evidence establishes that Ms. Schuck never received the dated transcripts, but rather that they were received by Pam Merritt, an administrative assistant in the District’s personnel office. Ms. Merritt put the transcripts in Judy Butler’s in- basket for processing. Ms. Butler’s responsibilities include processing salary changes for District staff. Ms. Butler is not responsible for reviewing transcripts or degrees for certification purposes. That review is done by the District’s certification office and is supposed to occur prior to the transcript or degree being forwarded to the personnel office for purposes of a salary change. Ms. Butler assumed that Ms. Dean’s degree was in her in-basket for purposes of a salary change even though there was no cover letter or other directions with the transcript. She did not see Respondent’s transcript because it had somehow gotten affixed to Ms. Dean’s transcript. Ms. Butler placed Ms. Dean’s salary change on the agenda for the Salary Classification Committee (SCC), and on January 26, 2006, the SCC approved a $1,750 salary supplement for Ms. Dean based upon her Belford doctorate degree. On January 28, 2006, Ms. Butler discovered Respondent’s transcript as she was pulling apart the documents from the SCC meeting for inclusion in a package for the Superintendent to review. On that same date, she e-mailed Respondent congratulating him on the award of his degree and advising him that his degree would be placed on the agenda for the SCC’s next meeting “so that [Respondent] can begin getting the supplement of $1,750.” Respondent assumed from this e-mail (and the representations given to him by Ms. Dean) that the salary change was being processed because his degree had been reviewed by Ms. Schuck and that it had been accepted for certification purposes. However, as noted above, Ms. Schuck had never received the degree. Ms. Butler sent a copy of the e-mail to David Lauer, the District’s assistant superintendent for human relations. Mr. Lauer received the e-mail on January 31, 2006, when he returned to the office. Mr. Lauer knew Respondent, and he was surprised to learn that he had obtained a doctorate degree. He asked Ms. Butler to give him the documentation related to Respondent and Ms. Dean, which she did. Mr. Lauer reviewed the Belford website for approximately 45 minutes and determined that it was a “diploma mill” and that the doctorate degrees obtained by Mr. Dawson and Respondent were “bogus.” Mr. Lauer also spoke with Ms. Schuck and asked her to determine whether Belford is an accredited university for DOE certification purposes. Ms. Schuck did so by e-mailing Mandy Mims, her contact at DOE. Ms. Mims advised Ms. Schuck that “Belford is not accredited by any agency recognized by the U.S. Dept. of Education, so degrees earned would not be appropriate for certification purposes.” Mr. Lauer was “flabbergasted” by the situation, and because he considered the submittal of bogus degrees to be “so serious and so contrary to what we believe in as educators,” he went directly to the Superintendent, Dr. Gail McKinzie, instead of first speaking to Respondent and Ms. Dean to get their side of the story. Mr. Lauer reported the situation to Dr. McKinzie on February 1, 2006. That same day, Dr. McKinzie reviewed the Belford website for approximately an hour and came to the same conclusions as Mr. Lauer regarding Belford and the nature of Respondent’s and Ms. Dean’s doctorate degrees. On February 3, 2006, Respondent was called to a meeting with Dr. McKinzie and Mr. Lauer. Dr. McKinzie told Respondent that she was going to recommend that the School Board fire him because he had misrepresented his professional qualifications though the submission of the Belford degree. The meeting lasted approximately five minutes. Respondent was not given a meaningful opportunity to explain his side of the story at the meeting and, prior to the meeting, Respondent had no indication that the validity of his Belford degree was in question. To the contrary, he was under the impression -- through representations made by Ms. Dean and his interpretation of Ms. Butler’s e-mail -- that his degree had been accepted by the District and DOE. By letter dated February 8, 2006, Dr. McKinzie informed Respondent that she had recommended to the School Board that his employment be terminated. The letter advised Respondent of his right to request an administrative hearing, and Respondent timely did so through a letter dated February 10, 2006. The School Board approved Dr. McKinzie’s recommendation at its meeting on February 14, 2006, and Respondent has been suspended without pay since that date pending the outcome of this proceeding. The negative characterization of Belford and its degrees by Mr. Lauer and Dr. McKinzie is reasonable based upon the evidence of record. For example, in addition to the statements from the website referred to in Finding of Fact 12 that should put a reasonable person on notice that Belford is not a legitimate educational institution, a degree from Belford can be obtained in as little as one week; the applicant is allowed to select his or her GPA, with a higher GPA costing more money; the applicant is not required to pay for his or her degree until after learning that the degree will be issued; the applicant is allowed to select his or her graduation date, with back-dating available at an additional cost; Belford will “introduce [a major] as a new addition to [its] doctorate curriculum” if the major sought by the applicant is not on Belford’s list of majors; Belford does not require transcripts or other proof beyond the applicant’s representations that he or she has received lower degrees (e.g., Bachelor’s and Master’s) prior to awarding a higher degree (e.g., Doctorate); and a base- level doctorate degree from Belford costs only $549.00. It is unreasonable for anyone, and particularly someone like Respondent who has 20 years of experience in the education system, to believe that Belford is a legitimate educational institution or that a doctorate degree from Belford is a legitimate educational degree that would be accepted as such by DOE or the District. Thus, it is inferred that Respondent knew or should have known that a doctorate degree from Belford is not a legitimate educational degree that could be used to enhance his standing in the principal pool or bolster his professional qualifications. Respondent’s conduct was slightly less egregious that Ms. Dean’s because, unlike Ms. Dean, Respondent did not make any affirmative representations to the District about completing a “doctorate program,” and Respondent relied upon Ms. Dean’s representations about the substance of her alleged conversations with Ms. Schuck. Nevertheless, it is clear from the evidence that Respondent was attempting to misrepresent and improperly bolster his qualifications through the submission of a “doctorate degree” from Belford that he knew or should have known was not a legitimate educational degree. Respondent’s decision to purchase a doctorate degree over the Internet calls into question his judgment as well as his respect for the educational process, which, in turn, raises serious doubts about Respondent’s ability to be effective in the school system. Indeed, it is clear from the totality of the evidence -- and particularly the testimony of Dr. McKinzie and Mr. Lauer -- that Respondent’s ability to be an effective leader (as assistant principals and aspiring principals are supposed to be) in the District has been significantly impaired through his submission and continued defense of his Belford degree as a legitimate educational degree.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Polk County School Board issue a final order terminating Respondent's employment. DONE AND ENTERED this 21st day of July, 2006, in Tallahassee, Leon County, Florida. S T. KENT WETHERELL, II 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 21st day of July, 2006.
