The Issue Whether Petitioner is entitled to participate in the Florida Retirement System (FRS) from January 1, 2000, through June 13, 2002, on the basis of his employment with Florida Community College at Jacksonville (FCCJ).
Findings Of Fact Petitioner, Robert Burns, has been employed as an adjunct instructor of FCCJ since March 1989. FCCJ is a member employer under FRS. Adjunct instructors traditionally have been employed by FCCJ on a class-by-class, semester-by-semester basis, and have no expectation of employment beyond any single semester. Petitioner knew this from his date of first hire. When Petitioner began work with FCCJ, all adjunct instructors were given a contract for each term and each course. This practice continued for all instructors and classes until the year 2000. Despite the semester-to-semester, repetitive contracts, occasionally Petitioner's courses were of a duration longer than one semester, and Petitioner was sometimes evaluated only on an annual basis. These evaluations were for purposes of certifying Petitioner and similarly situated adjunct instructional personnel for further semester contracts. At all times material, Petitioner taught on three campuses and taught college courses in biology and earth science; acted as a facilitator in the laboratory; and taught Adult Studies courses. At all times material, sixty percent of Petitioner's time was spent teaching Adult Studies courses. From 1989 until January 1, 2000, Petitioner was provided semester contracts for each of the three foregoing functions: college courses, lab facilitation, and Adult Studies courses. Every contract clearly acknowledged, in pertinent part, 3. This contract shall at all times be subject to any and all laws, Florida State Board of Education Rules and Florida Community College at Jacksonville Board of Trustees rules and regulations now existing or hereinafter lawfully enacted or promulgated. In furtherance thereof, the Contractor expressly agrees to become aware of and comply with all such applicable regulations, including but not limited to those addressing discrimination/affirmative action and sexual harassment. * * * The Contractor agrees and understands that he/she is not entitled to receive benefits made available by the College to its full-time employees. The Contractor further agrees and understands that his/her services are of a temporary nature, and that the College does not agree to provide the Contractor with any future employment or contract whether temporary, permanent or otherwise. The relationship hereby created between the Contractor and the College shall be deemed to have been voluntarily terminated by the Contractor upon the termination or expiration of this agreement. The Contractor agrees and understands that the compensation described herein is the entire compensation due to Contractor for performance of services pursuant to this contract. Specifically, Contractor agrees and understands that he/she shall not be entitled to wages or hours similar to those provided to College employees. * * * 9. The Contractor and the College understand and hereby agree that this contract does not and shall not be deemed to create an employment relationship. From January 1, 2000, through June 2002, Petitioner was not provided individual contracts for his Adult Studies classes, but was provided contracts for his other courses and lab facilitation work. In 2000, FCCJ began implementing a new computer system and, as a result, some adjunct instructors were not given individual contracts for each course. Adult Studies was one program area where time cards, rather than individual contracts, were used. No one at FCCJ ever told Petitioner that he had become a full or part-time employee, as opposed to an adjunct instructor. At various times during the period after January 1, 2000, Petitioner and other adjunct instructors approached Dean of Adult Studies, Lloyd Watkins, and asked him where their contracts were. The Dean inquired of FCCJ's Human Resources Department and was told there were too many contracts to do and so they would not be issued. It is not certain that Dean Watkins ever conveyed this information to Petitioner. However, throughout the period at issue, Petitioner used the time cards and understood that his employment was on a class by class, semester by semester basis. The issue of FRS benefits vis-á-vis independent contractor status did not arise until after Petitioner had been terminated.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Department of Management Services, Division of Retirement enter a final order denying Petitioner's request to participate in FRS from January 1, 2000, through June 13, 2002. DONE AND ENTERED this 14th day of January, 2003, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of January, 2003. COPIES FURNISHED: Al Millar, Esquire 4627 Ocean Street Mayport, Florida 32233 Thomas E. Wright, Esquire Department of Management Services 4050 Esplanade Way, Suite 260 Tallahassee, Florida 32399-0950 Erin Sjostrom, Director Division of Retirement Department of Management Services Cedars Executive Center 2639 North Monroe Street, Building C Tallahassee, Florida 32399-1560 Simone Marstiller, General Counsel Department of Management Services 4050 Esplanade Way, Suite 260 Tallahassee, Florida 32399-0950
The Issue The issue is whether Respondent committed unlawful employment practices contrary to Section 760.10, Florida Statutes (2007)1/, by terminating Petitioner's employment in retaliation for her filing a formal grievance asserting that a co-worker made a racially discriminatory comment to her at a staff meeting.
Findings Of Fact The District Board of Trustees of LCCC is an employer as that term is defined in Subsection 760.02(7), Florida Statutes. Petitioner, an African-American female, was hired by the College and began work on January 29, 2007. She worked in the cosmetology department as a Teaching Assistant II until the College terminated her employment on June 28, 2007. In addition to Petitioner, the College's cosmetology department consisted of two instructors, Carol McLean and Vicki Glenn. Ms. McLean was also the department coordinator, meaning that she supervised Petitioner and Ms. Glenn. The instructors performed classroom instruction and supervised students "on the floor" in the department's laboratory, where the students practiced their skills on clients who made appointments with the department to have their hair styled. Petitioner's duties included answering the telephone, making client appointments, ordering and stocking cosmetology supplies, and recording the hours and services performed by the students. Petitioner was a licensed cosmetologist and was expected to assist on the floor of the lab, but only when an instructor determined that her presence was necessary. Petitioner was not authorized to perform classroom instruction. Petitioner was at all times employed on a probationary basis under LCCC Policy and Procedure 6Hx12:8-04, which provides that all newly hired career service employees must serve a probationary period of six calendar months. This Policy and Procedure also requires that conferences be held with the employee at the end of two and four months of employment. The conferences are to include written performance appraisals and should be directed at employee development, areas of weakness or strength, and any additional training required to improve performance. Petitioner acknowledged that she attended orientation sessions for new employees during which this Policy and Procedure was discussed.4/ The evidence at hearing established that the orientation sessions covered, among other subjects, an explanation of the probationary period, the College's discipline and grievance procedures, and how to find the College's Policies and Procedures on the internet. The employee orientation process also required Petitioner's immediate supervisor, Carol McLean, to explain 14 additional items, including Petitioner's job description and the College's parking policies. The evidence established that Ms. McLean covered these items with Petitioner. Petitioner's first written evaluation covered the period from January 29, 2007 through March 29, 2007. The evaluation was completed by Ms. McLean on April 13, 2007, and approved by the Dean of Occupational Programs, Tracy Hickman, on April 30, 2007. The College's "Support Staff Job Performance Evaluation" form provides numerical grades in the categories of work knowledge, work quality, work quantity and meeting deadlines, dependability, co-operation, judgment in carrying out assignments, public relations, and overall performance. A score of 1 or 2 in any category is deemed "unsatisfactory." A score of 3 or 4 is "below norm." A score of 5 or 6 is "expected norm." A score of 7 or 8 is "above norm." A score of 9 or 10 is rated "exceptional." Petitioner's scores in each area were either 5 or 6, within the "expected norm." Ms. McLean graded Petitioner's overall performance as a 6. The evaluation form also provides questions that allow the supervisor to evaluate the employee's performance in a narrative format. In response to a question regarding Petitioner's strengths, Ms. McLean wrote that Petitioner "has demonstrated she is very capable handling conflicts/situations concerning clients. She is also good working with the students when needed. Her computer skills/knowledge has been an asset." In response to a question regarding Petitioner's weaknesses, Ms. McLean wrote, "Kay5/ needs to be a little more organized. I feel confident with the move to the new building, she will be able to set her office up to be more efficient for herself." Petitioner testified that she has excellent organizational skills and that she is, in fact, a "neat freak." Her problem was the utter disorganization of the cosmetology department at the time she started her job. She could not see her desk for the pile of papers and other materials on it. Boxes were piled in the middle of the floor. There were more than 100 unanswered messages in the recorded message queue. Petitioner testified that neither Ms. McLean nor Ms. Glenn could tell her how to proceed on any of these matters, and that she was therefore required to obtain advice via telephone calls to either Wendy Saunders, the previous teaching assistant, or Jeanette West, secretary to the Dean of Occupational Programs. Neither Ms. McLean nor Ms. Glenn recalled the complete departmental disorganization attested to by Petitioner at the outset of her employment. In fact, Ms. McLean recalled having to work 80-hour weeks to restore order to the department's workspace after Petitioner was discharged. No other witness testified as to disorganization prior to Petitioner's hiring. The evidence presented at the hearing established that Petitioner dramatically overstated the poor condition of the cosmetology department's offices at the time she started work, and also greatly overstated any contribution she made to improve its organization. Petitioner's second and final evaluation covered the period from March 29, 2007, through May 29, 2007. The evaluation was completed by Ms. McLean on May 22, 2007, and approved by Dean Hickman on May 23, 2007. Petitioner's numerical scores in each of the categories, including overall performance, was 4, meaning that her performance was "below norm." In a typewritten attachment, Ms. McLean wrote: Employee Improvement: Strengths: Kay is very good with the students and has strong desires to help them. Weaknesses: A concern is Kay's words and actions have shown that she would rather teach than be in the office. There is still a lack of organization in the office. We have had a couple incidents where we have to search for invoices, etc. I am still receiving complaints about the phone not being answered. Other comments: Too often Kay's actions have made it difficult for the department to operate effectively. Since Kay's arrival, it have discussed [sic] that each person must respect the protocol of communicating within the chain of command. On numerous occasions Kay ignored those instructions, In spite of my direct instructions to notify/discuss an incident report to Dean Hickman before doing anything else with it, Kay distributed it to others.6/ The College terminated Petitioner's employment on June 28, 2007, roughly five months after she began work and well within the six-month probationary period. Petitioner's dismissal was due to inadequate job performance and to several episodes displaying poor judgment and disregard of the College's rules and regulations. As to day-to-day job performance, the evidence established that Petitioner often had to be asked several times to do things that she conceded were within the scope of her duties. One of Petitioner's duties was to track the department's inventory, order supplies as needed, check the supplies against the invoices as they arrived, and unpack the supplies and restock the department's shelves. If the supplies were not removed from their shipping containers and stocked on the shelves, it was difficult for the instructors and students to find items or know when the department was running low on a given supply. Student cosmetologists at the College were frequently required to use caustic chemicals, and it was critical that the supplies be correctly inventoried and shelved to avoid mistakes in application of these chemicals. Ms. McLean had to tell Petitioner repeatedly to unpack the supplies. Petitioner would tell Ms. McLean that she would take care of it, but later Ms. McLean would notice that the supplies were still in their boxes.7/ Ms. McLean testified that there were multiple occasions when paperwork could not be located due to Petitioner's lack of a filing system. Ms. McLean and Petitioner would have to rummage through stacks of paper to find the item they needed because Petitioner failed to file the department's paperwork in a coherent manner. Another of Petitioner's duties was to set up "product knowledge" classes conducted by vendors of hair care products used in the cosmetology program. In February 2007, Ms. Glenn asked Petitioner to set up a class with Shirley Detrieville, the Redken representative for the College. Over the next month, Ms. Glenn repeatedly asked Petitioner about her progress in setting up the class, and Petitioner consistently responded that Ms. Detrieville had not returned her calls. Finally, in March, Ms. Glenn happened to see Ms. Detrieville on the campus. Ms. Detrieville informed Ms. Glenn that all the paperwork for the class had been completed long ago, and she was just waiting for Petitioner to call and let her know when to come. Ms. Glenn's class never received the Redken training. The evidence established that Petitioner consistently failed to return phone calls made to the department. There was a core group of women, mostly retirees that constituted an important segment of the regular patrons at the department's lab. Keeping track of their appointments was important because the students needed practical experience in order to meet the requirements for licensure. It was also important to keep track of the training needs of each student, because a student working on hair coloring, for instance, needed to be matched with a customer requesting that service. Among Petitioner's duties was to make the appointments for the patrons, and to coordinate the appointments with the students. Ms. McLean and Ms. Glenn testified that they consistently received complaints that Petitioner did not return phone calls from patrons attempting to make appointments. Ms. McLean recalled an elderly woman named Ms. Grammith, who was a weekly customer at the lab. Ms. Grammith phoned Ms. McLean at home because she was unable to get Petitioner to return her calls for an appointment.8/ Ms. Glenn recounted an occasion when she received a phone call from Ms. Grammith, complaining that Petitioner was not returning her calls. Ms. Glenn walked into Petitioner's office and asked her to return Ms. Grammith's call and make her appointment. Petitioner assured Ms. Glenn that she would. Ms. Glenn then went to teach a class. When she returned to her office, Ms. Glenn had another message from Ms. Grammith. Ms. Glenn asked Petitioner about the situation, and Petitioner admitted that she had not yet returned the call. Still later on the same afternoon, Ms. Glenn received a third call from Ms. Grammith. Again, Ms. Glenn inquired of Petitioner, who again admitted that she had not phoned Ms. Grammith. The next morning was a Friday, and Ms. Glenn received another call from Ms. Grammith. Ms. Glenn walked into Petitioner's office and told her to call Ms. Grammith. Ms. Glenn knew Petitioner never made the call because Ms. Grammith called Ms. Glenn yet again on the following Monday. Another elderly regular customer, Ms. Caldwell, stopped Ms. Glenn in the hallway one day to ask "what in the world was going on here." Ms. Caldwell complained that Petitioner never got her appointment right, and always told her that she had come in on the wrong day or at the wrong time. On this day, Ms. Caldwell was left sitting in the hallway outside the lab for three and one-half hours because Petitioner failed to schedule her appointment correctly. On another occasion, Shirley Rehberg, an LCCC employee, emailed Ms. Glenn to inquire about making an appointment for a pedicure. Ms. Glenn responded that Petitioner handled appointments, and provided Ms. Rehberg with information as to Petitioner's office hours. On three different occasions, Ms. Rehberg informed Ms. Glenn that she had attempted to make appointments with Petitioner but had received no response. Ms. Glenn also recalled going to the College registrar's office on unrelated business and being asked by Debbie Osborne, an employee in that office, whether the cosmetology department had stopped taking appointments. Ms. Glenn told her that all she had to do was call Petitioner. Ms. Osborne replied that she had emailed Petitioner several times and never received a response. Ms. McLean concluded that Petitioner was much more interested in the occasional teaching aspect of her position than she was in the quotidian matters of filing, ordering and answering the phone that constituted the bulk of her job. Ms. McLean believed that Petitioner's eagerness to teach, even when her presence on the floor was not requested or needed, sometimes caused Petitioner to neglect her other duties. Petitioner admitted that she preferred teaching, but also testified that she was forced to teach students at least two days per week because Ms. McLean simply skipped work every Wednesday and Thursday. Petitioner stated that when she was on the floor of the lab, she could not hear the phone ringing back in the office. She believed that this might have accounted for some of the missed phone calls. Ms. McLean credibly denied Petitioner's unsupported allegation that she skipped work twice per week. Ms. McLean was in the classroom and lab with her students four days per week, as required by her schedule. Ms. McLean reasonably observed that she would not remain long in the College's employ if she were to skip work every Wednesday and Thursday. When classes were not in session, faculty members such as Ms. McLean and Ms. Glenn were not required to come into the office, whereas the teaching assistant was required to come in and work a full day from 8:00 a.m. to 5:00 p.m. On these faculty off-days, it was especially important for Petitioner to be on the job because she constituted the sole point of contact between students and the cosmetology department. New classes in cosmetology start twice a year, and prospective students may drop by the campus at any time. If no one is present during normal working hours to answer questions or assist the student in applying, the College could lose a prospective student as well as suffer a diminished public image. The evidence established that Petitioner would take advantage of the lack of supervision on faculty off-days to go missing from her position, without submitting leave forms for approval by an administrator as required by College policy. May 4, 2007, was the College's graduation day. Ms. McLean and Ms. Glenn arrived at the cosmetology building at 3:00 p.m. to prepare for the cap and gown ceremony and noted that Petitioner was not there, though it was a regular work day for her. Petitioner was still absent at 4:30 p.m. when the two instructors left the building to go to the graduation ceremony. On May 15, 2007, a faculty off-day, Ms. Glenn came in at 11:00 a.m. to prepare for her class the next day. Petitioner asked Ms. Glenn to handle a student registration matter while Petitioner went out. Ms. Glenn agreed to do so. The students had yet to arrive by 2:00 p.m. when Ms. Glenn was ready to leave. Petitioner had still not returned to the office, forcing Ms. Glenn to ask Ms. West to register the students if they arrived. Ms. Glenn had no idea when or if Petitioner ever returned to work that day. Marcia Brinson was the custodian who cleaned the cosmetology building. During summer session at the College, Ms. Brinson worked from 2:00 p.m. to 11:00 p.m. She would often come into the cosmetology building and find that Petitioner was not there. This was the case on May 15, 2007, when Ms. Brinson entered the building at 2:00 p.m. At around 2:30, an administrator named Glenn Rice came to the cosmetology building with two students whom he was attempting to enroll.9/ Ms. Brinson phoned Ms. McLean at home to inform her of the situation. Ms. McLean phoned the cosmetology office. Petitioner did not answer. At about 2:50 p.m., Ms. McLean called Petitioner at her cell phone number. Petitioner answered and told Ms. McLean that she was at her mother's house, but was about to return to the College. Ms. McLean could not say whether Petitioner ever actually returned to the College that day. At the hearing, Petitioner claimed that the only time she left the cosmetology department on May 15, 2007, was to go to the library at 2:15 p.m. and obtain materials for a class she was going to teach on May 17. This testimony cannot be credited, given that it conflicts with the credible testimony of Ms. McLean, Ms. Glenn and Ms. Brinson. Further belying Petitioner's claim is the fact that she later submitted a leave form claiming "personal leave" for two hours on May 15, 2007. She claimed the hours from 3:30 p.m. to 5:30 p.m. Aside from its inconsistency with Petitioner's testimony, this claim was inaccurate on two other counts. First, the evidence established that Petitioner was away from the office from at least 11:00 a.m. until some time after 3:00 p.m. Second, Petitioner's regular work day ended at 5:00 p.m., thus giving her no cause to claim leave for the half-hour between 5:00 and 5:30 p.m. The College has a "wellness" program in which employees are allowed to take 30 minutes of leave, three days per week, in order to engage in some form of exercise. Petitioner considered wellness time to be the equivalent of personal leave, and would leave her job at the College early in order to keep an appointment at a hair-styling salon at which she worked part-time. Finally, Petitioner was unwilling or unable to comply with the College's parking decal system. At the time she was hired, Petitioner was issued a staff parking pass that entitled her to park her car in any unreserved space on he campus. As noted above, many of the cosmetology customers were elderly women. For their convenience, the College had five spaces reserved for customers directly in front of the cosmetology building. Customers were issued a 5 x 8 "Cosmetology Customer" card that they would leave on their dashboards. If all five of the reserved spaces were taken, the card allowed the customer to park in any space on the campus. On May 30, 2007, the College's supervisor of safety and security, Tony LaJoie, was patrolling the campus on his golf cart. Petitioner flagged him down, asking for help with a dead battery in her car. Mr. LaJoie stopped to help her, but also noticed that Petitioner's car was parked in a space reserved for customers and that Petitioner had a "Cosmetology Customer" card on her dashboard. When he asked her about it, Petitioner told Mr. LaJoie that she had lost her staff parking pass and therefore needed to use the customer pass. Mr. LaJoie told Petitioner that she could go to the maintenance building and get a new staff pass, or get a visitor's pass to use until she found the first pass. Petitioner told Mr. LaJoie that she could not afford the $10 replacement fee for the pass. Mr. LaJoie told her that the $10 replacement fee was cheaper than the $25 to $50 fines she would have to pay for illegally parking on campus. Petitioner promised Mr. LaJoie that she would go to maintenance and take care of the situation. On June 5, 2007, Mr. LaJoie found Petitioner's car again parked in a customer reserved space and with a customer card on the dashboard. Mr. LaJoie wrote Petitioner a parking ticket. Petitioner was well aware that the customer spaces were reserved at least in part because many of the department's customers were elderly and unable to walk more than a short distance. Petitioner nonetheless ignored College policy and parked her car in the reserved spaces. Petitioner never obtained a replacement parking pass.10/ Dean Hickman was the administrator who made the decision to recommend Petitioner's termination to the College's Vice-President, Charles Carroll, who in turn presented the recommended decision to LCCC President Charles W. Hall, who made the final decision on termination. She based her recommendation on the facts as set forth in Findings of Fact 19 through 48, supra. Petitioner's termination was due to her performance deficiencies. Dean Hickman considered Petitioner's pattern of conduct, including her repeated violation of parking policies and her practice of leaving her post without permission, to constitute insubordination. Ms. McLean, who provided input to Dean Hickman as to Petitioner's performance issues, testified that Petitioner's slack performance worked to the great detriment of a department with only two instructors attempting to deal with 20 or more students at different stages of their training. Petitioner's position was not filled for a year after her dismissal. Ms. McLean and Ms. Glenn worked extra hours and were able to perform Petitioner's duties, with the help of a student to answer the phones. The fact that the instructors were able to perform their own jobs and cover Petitioner's duties negates Petitioner's excuse that she was required to do more than one full-time employee could handle. Furthermore, Ms. McLean testified that, despite the added work load, Petitioner's departure improved the working atmosphere by eliminating the tension caused by Petitioner. Because Petitioner was still a probationary employee, the College was not required to show cause or provide specific reasons for her dismissal. Nevertheless, the evidence established that there were entirely adequate, performance-based reasons that fully justified the College's decision to terminate Petitioner's employment. The evidence further established that Petitioner's dismissal was not related to the formal grievance Petitioner filed on June 5, 2007. However, because Petitioner has alleged that her termination was retaliatory, the facts surrounding her grievance are explored below. The grievance stemmed from an incident that occurred between Petitioner and Ms. Glenn on May 16, 2007, the first day of the summer term. A student named Russia Sebree approached Ms. Glenn with a problem. Ms. Sebree was not on Ms. Glenn's summer class roster because she had not completed the Tests of Adult Basic Education ("TABE"), a test of basic reading, math and language skills. Students were required to pass the TABE in their first semester before they would be allowed to register for their second semester. Ms. Glenn told Ms. Sebree that, because the initial registration period had passed, they would have to walk over to the Dean's office and have Dean Hickman register Ms. Sebree for the class. Ms. Glenn phoned Dean Hickman's secretary, Ms. West, to make an appointment. Ms. West told Ms. Glenn that Dean Hickman was out of the office, and that she would make a return call to Ms. Glenn as soon as the dean returned. While waiting for Ms. West's call, Ms. Sebree apparently drifted into Petitioner's office. She mentioned to Petitioner that she hadn't passed the TABE test, and Petitioner told her she could take care of the matter by making an appointment for Ms. Sebree to take the test. Ms. Glenn overheard the conversation and walked in to stop Petitioner from making the call. She told Petitioner that she had a call in to Dean Hickman, and that she and Ms. Sebree would have to meet with the dean to determine whether Ms. Sebree could register for Ms. Glenn's summer class or whether she would be required to complete the TABE and wait until the next semester. Ms. Glenn was angered by Petitioner's interference in this matter. Petitioner's actions were beyond the scope of a teaching assistant's duties, unless requested by an instructor.11/ She jumped into the situation without inquiring whether Ms. Sebree had talked to her instructor about her problem and without understanding the steps that Ms. Glenn had already taken on Ms. Sebree's behalf. Eventually, Ms. West returned the call and Ms. Glenn and Ms. Sebree met with Dean Hickman. After the meeting, Ms. Glenn requested a private meeting with Dean Hickman. She told the dean that she was very upset that Petitioner had taken it upon herself to take over the situation with Ms. Sebree, when Ms. Glenn was taking care of the matter and Petitioner had no reason to step in. Dean Hickman told Ms. Glenn that she would not tolerate a staff person going over an instructor's head in a matter involving a student. Dean Hickman asked Ms. Glenn to send Petitioner over to her office. Dean Hickman testified that she met with Petitioner for about 30 minutes, and that Petitioner left her office requesting a meeting with Ms. Glenn. Dean Hickman did not testify as to the details of her meeting with Petitioner. The dean knew that Petitioner was angry and cautioned her to conduct herself in a professional manner when speaking with Ms. Glenn. Petitioner testified that Dean Hickman "yelled" at her, "I will not have you undermine my instructor's authority." Petitioner professed not to know what Dean Hickman was talking about. The dean repeated what Ms. Glenn had said to her about the incident with Ms. Sebree. According to Petitioner, Ms. Glenn had told the dean "some lie," an "outlandish" tale in which "I went in telling Russia that she didn't have to do what Vicki said, or something like that." Petitioner told Dean Hickman her version of the incident, which was essentially that nothing happened. She was showing Ms. Sebree "some basic algebraic equations and stuff and there was no conflict or anything in the office." Petitioner asked for a meeting "so I can see what's going on." Petitioner returned to the cosmetology department. She was visibly upset. She asked for a departmental meeting with Ms. McLean and Ms. Glenn that afternoon. Ms. McLean agreed to move up the weekly departmental meeting in order to take care of this matter. The meeting convened with Ms. McLean going over the usual day-to-day matters involving the program. Once the regular business was completed, Ms. McLean stated that she wanted Petitioner and Ms. Glenn to air out their problems. Petitioner asked Ms. Glenn why she wanted to tell lies about her. Ms. Glenn said, "What?" and Petitioner stated, "You're a liar." Ms. Glenn denied the accusation. Petitioner repeated, "You're nothing but a liar." In anger and frustration, Ms. Glenn stated, "Look here, sister, I am not a liar." Petitioner responded, "First, you're not my sister and, secondly, my name is Stephanie K. Taylor, address me with that, please."12/ Ms. McLean testified that both women were "pretty heated" and "pretty frustrated" with each other. She concluded the meeting shortly after this exchange. After the meeting, Petitioner and Ms. McLean spoke about Ms. Glenn's use of the word "sister," which Petitioner believed had racial connotations. Ms. McLean told Petitioner that she did not believe anything racial was intended.13/ Ms. Glenn had never been called a liar, and in her frustration she blurted out "sister" in the same way another angry person might say, "Look here, lady." Petitioner seemed satisfied and the matter was dropped for the remainder of the day. Dean Hickman testified that Petitioner brought some paperwork to her office that afternoon after the departmental meeting. Petitioner told her that she felt better about the situation, that they had aired their differences and everything now seemed fine. The dean considered the matter resolved. By the next morning, May 17, 2007, Petitioner had changed her mind about the comment. She sent an email to each member of the College's board of trustees, President Hall, Dean Hickman, and various other College employees that stated as follows: Hello. I am Stephanie K. Taylor, Teaching Assistant for Cosmetology. I am writing because of an incident that took place on yesterday, May 16, 2007. Nancy Carol McLean (Coordinator/Instructor), Vicki Glenn (Instructor) and I met for a meeting to discuss concerns in our department approximately 11:35 am. During our discussion, Vicki Glenn made a racial comment to me. I disagreed with her concerning a statement she made. Her reply to me was: "No, 'Sister', I did not!" I was very offended by her remark and I replied, "My name is Stephanie Kay Taylor." Following the meeting, I spoke with Ms. McLean and I decided to write this incident statement. If I allow an instructor to call me something other than my name, these incidents will continue. Ms. McLean had repeatedly cautioned Petitioner to respect the College's chain of command. As Petitioner's immediate supervisor, Ms. McLean was supposed to be Petitioner's first resort insofar as work-related complaints. Petitioner was in the habit of going straight to Dean Hickman with complaints before discussing them with Ms. McLean. However, in this instance, Petitioner did show Ms. McLean the text of her statement before she distributed it. Ms. McLean advised Petitioner to take the matter straight to Dean Hickman and discuss it with her before distributing the statement. Petitioner did not take Ms. McLean's advice. Though Petitioner emailed the statement to Dean Hickman, the dean did not actually see the statement until it had been distributed to several other people. No evidence was presented that Petitioner suffered any adverse consequences from distributing her written statement outside the College's chain of command. To the contrary, Petitioner testified that Ms. McLean advised her that if she felt strongly about the matter, she should file a formal grievance pursuant to the LCCC Policy and Procedure 6Hx12:6- 10.14/ Ms. McLean provided Petitioner with the forms she needed to file a written grievance. Petitioner also sought and received the advice of a human relations specialist at the College as to how to file a formal grievance. Both Ms. McLean and Ms. Glenn convincingly testified that they had no ill feeling toward Petitioner for filing a grievance. Ms. McLean stated that the grievance had no impact on her at all. Ms. Glenn was not disturbed by the grievance because she had done nothing wrong and believed the process would vindicate her. Petitioner filed her formal written grievance on June 5, 2007. Vice president Marilyn Hamm began the investigation in the absence of Human Resources Director Gary Boettcher, who picked up the investigation upon his return to the campus. Dean Hickman also participated in the investigation of Petitioner's grievance. They interviewed the witnesses to the incident. They also interviewed 11 cosmetology students and asked them whether they had ever heard Ms. Glenn make any "derogatory or racial slurs or comments" relative to Petitioner. None of the students had heard Ms. Glenn make any remarks fitting the description in the query.15/ One student told the investigators that he had heard Petitioner speak disparagingly of Ms. Glenn, but not vice versa. On June 19, 2007, Mr. Boettcher issued a memorandum to Petitioner that stated as follows: You filed a grievance alleging that Ms. Vickie Glenn made a racial comment to you by calling you "sister." You further stated that you want the same respect that you have given to others and that you be referred to by your name, Stephanie K. Taylor. I was not available when you filed the grievance therefore it was referred to Vice President Hamm who began the investigation and upon my return it was referred to me. Ms. Hamm interviewed yourself, and Carol McLean. Ms. Hamm and I then interviewed Ms. Glenn. Subsequently, Ms. Hickman, the Dean of your department, and I interviewed a random sampling of students in the cosmetology program. The incident you described, when you were referred to as "sister" was discussed with both Ms. McLean and Ms. Glenn, who were in the meeting when the comment was made. They both acknowledged that you were in fact referred to as sister. Neither of them viewed it as a racial comment but a term that was used in the heat of the discussion in which you and Ms. Glenn were very much at odds on a subject. The students were interviewed and asked if you had discussed or made mention of an evaluation that you received and also whether that had ever heard Ms. Glenn talk derogatorily or made any racial comments relative to you. Some of the students heard of talk of your evaluation but none of them heard it first hand from you. None of the students ever heard Ms. Glenn refer to you in any racial or disparaging way. In view of the investigation it is concluded that you were called "sister" but not in a negative or racial inference and that Ms. Glenn has not referred to you in a derogatory or racial manner. This has been discussed with Ms. McLean and Ms. Glenn in that they were asked to refer to you strictly by your name and in a professional manner. I trust this will be satisfactory to you and if you have any questions please feel free to contact me. Petitioner's employment with the College was terminated on June 28, 2007, nine days after Mr. Boettcher's memorandum. No evidence was presented to establish a causal connection between these two events, aside from their temporal proximity. As noted extensively above, the College had more than ample justification to terminate Petitioner's employment before the conclusion of her six-month probationary period. The greater weight of the evidence establishes that Petitioner was terminated from her position with the College due to poor job performance and conduct amounting to insubordination. The greater weight of the evidence establishes that the College did not retaliate against Petitioner for the filing of a grievance alleging that Ms. Glenn had made a racially discriminatory remark towards Petitioner. Rather, the greater weight of the evidence established that College personnel assisted Petitioner in filing her grievance and that the College conscientiously investigated the grievance. The greater weight of the evidence establishes that the College has not discriminated against Petitioner based on her race.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order finding that Lake City Community College did not commit any unlawful employment practices and dismissing the Petition for Relief. DONE AND ENTERED this 30th day of June, 2010, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of June, 2010.
The Issue Whether Respondent has committed a discriminatory act with respect to public accommodations in violation of Chapter 760, Florida Statutes, and if so, what remedy should be provided.
Findings Of Fact Petitioner is an African-American woman living in the Gainesville area. She is married and has children. On November 15, 2006, Petitioner went to the Days Inn at 7516 Newberry Road to make a reservation for her mother and sister. She was dressed casually and had her children with her. When she arrived at the Days Inn, she spoke with John Osley, who was later identified as the manager of the hotel, and asked if all the rooms were entered from the outside. He told her that the Newberry Road hotel had outside rooms only but that the Days Inn on Archer Road had internal corridors. Mr. Osley asked what dates she wanted to reserve. She told him November 23-24, which was Thanksgiving Day and the day after. Mr. Osley told her there were no rooms available those days because the hotel was the host hotel for a race-car event. She asked about cancellations and he told her to call back closer to the dates she needed the room to see if there were any. He gave her a business card for a person at the front desk. Upon her request, he allowed her to look at one of the rooms. Petitioner thanked Mr. Osley and left. After she left the hotel, she felt that she had not been treated appropriately. That evening, she checked on the Days Inn internet website to see if any rooms at the Newberry Road location were available online for November 23-24. She was able to make a reservation for the desired days via the internet. Ultimately, her mother opted to stay at another hotel. As a result, the reservation at the Days Inn was canceled. Petitioner was angry because she felt she had been mistreated at the hotel, and wrote to Joseph Kante, whom she identified as being in a management position for Days Inn. She also e-mailed him and within 24-hours, she received an apology from him. However, according to Petitioner, Mr. Kante indicated that each Days Inn is responsible for itself and the person she needed to speak to regarding the Days Inn on Newberry Street was John Osley. Petitioner returned to the Days Inn on Newberry Road in an effort to speak with Mr. Osley, and also called the hotel. Each time, Mr. Osley was not present and she never spoke with him about her concerns. After her attempts to reach him were unsuccessful, she filed her complaint with the Commission. No evidence was presented regarding any other person of any race seeking a room at the same time as Ms. Henderson who was able to reserve a room when she could not. No evidence was presented indicating that Mr. Osley was not being truthful when he stated that no rooms were available when Ms. Henderson originally sought to reserve a room.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered that dismisses Petitioner's claim. DONE AND ENTERED this 27th day of September, 2007, in Tallahassee, Leon County, Florida. S Hearings Hearings LISA SHEARER NELSON Administrative Law Judge Division of Administrative 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 this 27th day of September, 2007. COPIES FURNISHED: Burnita Henderson 5010 Southwest 63rd Boulevard Gainesville, Florida 32608 John Osley Days Inn I-75 7516 Newberry Road Gainesville, Florida 32606 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
Findings Of Fact THIS CAUSE comes on for consideration based upon the Petition for Determination of the Invalidity of the existing Rules 6A-14.416 and 6A-14.417, Florida Administrative Code, for allegedly being in violation of the provisions of Section 120.56, Florida Statutes. The Petition was filed on September 22, 1978 and the hearing was conducted on October 20, 1978. The hearing rises out of the collateral Section 120.57(1), Florida Statutes hearing in which an administrative complaint had been filed under the guise of Rule 6A-14.416, Florida Administrative Code, (in addition to certain statutory authority) against the current Petitioner, Gregory Bruce Nelson. During the course of that hearing it developed that Gregory Bruce Nelson, through his affirmative defenses to the Complaint, wished to challenge Rule 6A-14.416, Florida Administrative Code for alleged violation of Section 120.56, Florida Statutes. In response to that challenge, the Section 120.57(1) hearing, (which is reported as Lee G. Henderson, as Director of the Division of Community Colleges, Petitioner, vs. Gregory Bruce Nelson, Respondent, DOAH Case Number 78-283), has been stayed pending the outcome of the case sub judice. An order was entered by the undersigned allowing for sufficient time to file the Section 120.56, Florida Statutes challenge to Rule 6A-14.416, Florida Administrative Code and Mr. Nelson has complied with the terms and conditions of that order as to timeliness of the Petition for review pursuant to Section 120.56, Florida Statutes. Concurrently, Mr. Nelson has availed himself of the opportunity to submit a challenge to Rule 6A-14.417, Florida Administrative Code. The issue of consideration of the validity of Rules 6A-14.416 and 6A- 14.417, Florida Administrative Code, is properly joined and will be determined. Respondents moved to strike certain portions of the Petition at the commencement of the hearing and the motion was granted as to paragraphs 3(f), (g) and paragraph 4(d) and a portion of paragraph 5, beginning with the words ".... deprivation to Nelson of due process of law..." to the conclusion of said paragraph 5. In addition, the clause containing the Petitioner's prayer for relief was stricken in its language, "and directing Respondents to dismiss Case No. 78-283 with prejudice." An additional motion was made to strike the name of Lee G. Henderson, as Director of the Division of Community Colleges as a named Respondent. In view of the fact that the Director of the Division of Community Colleges is not responsible for the promulgation of rules and regulations of the State Board of Education, he is hereby deleted and stricken as a party Respondent. The Petitioner, Gregory Bruce Nelson, is an employee of the Florida Junior College, an institution governed by Chapter 230, Florida Statutes. Nelson holds a certificate issued under the terms and conditions of Rule 6A- 14.415, Florida Administrative Code. The pending Amended Petition for Revocation of Mr. Nelson's teaching certificate makes reference to the substantive basis for action as being found in Rule 6A-14.416, Florida Administrative Code, and the due process requirements for such revocation or suspension of the Petitioner's teaching certificate are ostensibly found in Rule 6A-14.417, Florida Administrative Code. The Petitioner's attack on the rules in question falls into two broad categories. The first category concerns the procedural requirements for the adoption of the rules and the second category is a contention on the part of the petitioner that the rules, as adopted, constitute invalid exercises of delegated legislative authority. The rules were adopted under the requirements of the then Administrative Procedures Act, Chapter 120, Florida Statutes. The adoption took place on December 3, 1974 and the rules became effective and operative on December 19, 1974. The controlling requirements for such adoption and effect and operation may be found in the former Administrative Procedures Act in operation in December 1974. Specifically, those provisions were Section 120.031 and Section 120.041,Florida Statutes. The Respondent in this cause met all conditions for the adoption of rules in terms of procedural requirements set forth in the aforementioned sections of the former Administrative Procedures Act. This can be determined by an examination of the Respondent's Exhibit #1, admitted into evidence which is a certified copy from the State of Florida, Department of State, of the promulgation and adoption of the rules in question on December 3, 1974, and of the filing of the rules with the Department of State on December 10, 1974, to become effective on the next day, December 19, 1974. Moreover, the rules were adopted by a public hearing which was noticed through publication in four newspapers of general circulation in the State of Florida on dates 10 to 30 days before the public hearing of December 3, 1974. Copies of the advertisements used in giving the notice may be found as the Respondent's Composite Exhibit #2, admitted into evidence. In view of the fact that the rules were adopted in accordance with the procedures set forth in the former Chapter 120, Florida Statutes, and were adopted by a public hearing properly noticed, it was not necessary to comply with the conditions of the new Administrative Procedures Act, Laws of Florida 1974, Chapter 74-310, which became effective January 1, 1975. In particular, this refers to the requirements set forth in Section 120.54, Florida Statutes, and Section 120.72, Florida Statutes, pertaining to Laws of Florida 1974, Chapter 74-310, effective January 1, 1975. Therefore, the Petitioner's claim of procedural violations as a basis for overturning Rules 6A-14.416 and 6A-14.417, Florida Administrative Code, is not well founded. The remaining question is whether or not the rules on their face constitute invalid exercises of delegated legislative authority within the meaning of the current Section 120.56, Florida Statutes. Turning to a consideration of the Respondent's Exhibit 41, it can be seen that in adopting and promulgating 6A-14.416, Florida Administrative Code, the State Board of Education made reference to Section 230.755, Florida Statutes as their general statement of authority and to the fact that the law being implemented was Section 230.759, Florida Statutes. Those provisions use the following language: "Section 230.755, Minimum standards for community colleges.-- The state board shall prescribe minimum standards which must be met before a community college is organized, acquired or operated, and which will assure that the purposes of the community college are attained. * * * Section 230.759 Employment of community college personnel.-- Employment of all personnel in each community college shall be upon recommendation of the president, subject to rejection for cause by the board of trustees and subject to the rules and regulations of the state board relative to certification, tenure, leaves of absence of all types, including sabbaticals, remuneration, and such other conditions of employment as the division of community colleges deems necessary and proper; and to policies of the board of trustees not incon- sistent with law." Section 230.755, Florida Statutes, is a general statement establishing minimum standards for the organization, acquisition or operation of the various community colleges in the state. it does not create legislative authority for the relocation or suspension of the teaching certificates of those individuals who are employed in the community college system In the State of Florida. Section 230.759, Florida Statutes prescribes the method by which individuals may be hired by the community college. However, that provision is not sufficiently broad enough in its language to authorize procedures for the revocation or suspension of the teaching certificates of those personnel employed by the community college in the State of Florida. One other background item should be examined in discussing the authority for promulgating Rule 6A-14.416, Florida Administrative Code. As was noted in the course of the hearing, the published accounts of Rule 6A-14.416, Florida Administrative Code contains a reference to Section 229,053(1), Florida Statutes, which was not found in the rule as originally filed with the State of Florida, Department of State. Consequently, it may be argued that Section 229.053(1), Florida Statutes, may not be utilized in supporting the promulgation and adoption of rules 6A-14.416, Florida Statutes, because it was left out of the official Rule 6A-14.416, Florida Administrative Code, filed with the Department of State. That provision, Section 229.053, Florida Statutes, reads as follows: Section 229.053 General powers of state board.-- The state board of education is the chief policy-making and coordinating body of public education in Florida. It has the general powers to determine, adopt or prescribe such policies, rules, regulations, or standards as are required by law or as it may find necessary for the improvement of the state system of public education. Except as otherwise provided herein it may, as it shall find appropriate, delegate its general powers to the commissioner of education or the directors of the divisions of the department. " Assuming for purposes of argument that Section 229.053(1), Florida Statutes may be properly attributed to Rule 6A-14.416, Florida Administrative Code, as an attempted statement of authority for the exercise of the powers found in the subject rule, the provision Section 229.053(1), Florida Statutes, could not authorize the exercise of the powers found in that rule; which rule attempts to allow for the revocation or suspension of a teaching certificate held by a member of a staff of the community college in the State of Florida. Section 229.053(1), Florida Statutes is a general statement of the powers of the state board of education, only. No other provisions of Chapter 230, Florida Statutes, were offered in support of Rule 6A-14.416, Florida Administrative Code. Nonetheless, a review of Part II of Chapter 230, Florida Statutes, dealing with community colleges, in existance at the time that the rule was adopted and promulgated, does not reveal any provision of that Part which would allow for the adoption of rules pertaining to penalties against the holders of certificates to teach in the community colleges of the State of Florida. Consequently, Rule 6A-14.416, Florida Administrative Code is an invalid exercise of delegated legislative authority within the meaning of Section 120.56, Florida Statutes, and is invalid in its entirety. Rule 6A-14.417, Florida Administrative Code, is a due process statement of procedure to implement the provisions of Rule 6A-14.416, Florida Administrative Code. Again, it has as its statement of authority found in the Respondent's Exhibit #1, admitted into evidence, the then existing provisions of Sections 230.755 and 230.759, Florida Statutes. That statement of authority is also found in the published compilation of rules made by the Department of State. For the reason that there exists no statement in Chapter 230, Florida Statutes, as it existed at the time that the Rule 6A-14.416, Florida Administrative Code was promulgated, that allows penalties to be placed against the certificate held by the community college teachers, there is likewise no authority to establish procedures for undertaking a consideration of probable cause to revoke or suspend and the subsequent hearing on revocation or suspension. The rationale in reaching this opinion is the same as was utilized in the consideration of Rule 6A-14.416, Florida Administrative Code. Therefore, Rule 6A-14.417, Florida Administrative Code, constitutes an invalid exercise of delegated legislative authority within the meaning of Section 120.56, Florida Statutes and the entire language of Rule 6A-14.417, Florida Administrative Code is invalid.
The Issue The issue is whether petitioner's request for an exemption from disqualification from employment in a position of special trust should be granted.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: This case involves a request by petitioner, Damon L. Lee, for an exemption from disqualification from employment in a position of special trust. If the request is approved, petitioner intends to work in a developmental services facility for retarded persons. Respondent, Department of Health and Rehabilitative Services, is the state agency charged with the responsibility of approving or denying such requests. Petitioner is now barred from working in such a facility because of a disqualifying offense which occurred on June 1, 1994. On that date, petitioner was arrested for the offense of "battery on spouse, domestic violence," a misdemeanor. On the evening of June 1, 1994, petitioner went to the residence of his girlfriend in Baldwin, Florida, where he discovered that another male was present. As he started to leave the premises, his girlfriend, who was four months pregnant, followed him outside and an altercation ensued. She took a broom and began smashing the windows of petitioner's vehicle, causing $458.32 in damages. While attempting to stop her, petitioner grabbed his girlfriend and pushed her to the ground. Although not seriously injured, the girlfriend received marks on her body where petitioner grabbed her. After an investigation was conducted by local law enforcement officials, petitioner was arrested and charged with domestic violence. Whether petitioner pled guilty or nolo contendere to the charge is unclear. In any event, on July 13, 1994, he was given three months supervised probation and was required to enroll in, and complete, an anger control class. Thereafter, he successfully completed all terms of probation and a six-week anger control class. Other than this incident, petitioner has never been charged with any other crime. After being disqualified from employment, petitioner appeared before a three-person committee composed of local HRS employees seeking an exemption. At that time, he was told that his request was being denied because he had not brought to the hearing proof that he had successfully completed the terms of his probation and the anger control class. This proceeding followed. When the incident occurred, petitioner was employed by Jacksonville Electric Authority (JEA). Because of his arrest, however, JEA terminated his employment. For the same reason, he was denied employment with AT&T Corporation. He eventually obtained employment as a program assistant with Kincaid Cluster Homes, a facility for retarded persons in Jacksonville, Florida, where he worked for six weeks until the disqualifying offense was discovered. He is presently enrolled in a special HRS program known as the Project Independence Program for food stamp recipients since he has custody of, and is caring for, two small children. Petitioner, who is twenty-three years of age, has completed course work at Lake City Junior College and is now enrolled at Florida Junior College in Jacksonville seeking to attain a degree in computer programming. He desires an exemption so that he can work on a part-time basis at Kincaid Cluster Homes, which has promised to rehire him if his request for an exemption is approved. Besides needing the income for college, petitioner also has children who rely upon him for their support. Petitioner was described as a responsible, reliable worker at Kincaid Cluster Homes and is well-liked by the staff and clients. This was not contradicted. He will not present a danger to the safety or well-being of that facility's clients. Based on petitioner's own testimony, as corroborated by letters from third parties, and the testimony of his former co-worker at Kincaid Cluster Homes, it is found that petitioner has presented sufficient evidence of rehabilitation so as to justify approving the exemption.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Health and Rehabilitative Services enter a final order granting petitioner's request for an exemption from disqualification for employment in a position of special trust. DONE AND ENTERED this 27th day of August, 1996, in Tallahassee, Florida. DONALD R. ALEXANDER, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of August, 1996. APPENDIX TO RECOMMENDED
The Issue Whether the Respondent committed the violations alleged in the Notice of Specific Charges served April 19, 2006, and, if so, the penalty that should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The School Board is a duly-constituted school board charged with the duty to operate, control, and supervise all free public schools within the School District of Miami-Dade County, Florida. Article IX, Florida Constitution; § 1001.32, Fla. Stat. (2004). Mr. Varona was employed as a school security monitor in October 1990. In October 1996, the School Board hired Mr. Varona as a fine arts teacher, and he continued as a full- time teacher until his full-time status was terminated in June 2003, when his second non-renewable temporary teaching certificate expired. Mr. Varona was re-hired by the School Board as a temporary instructor in August 2004, and continued working for the School Board as a classroom instructor until he was suspended in March 2006. At the times material to this proceeding, Mr. Varona was a member of the United Teachers of Dade, which had entered into a Collective Bargaining Agreement ("Agreement") with the School Board, effective July 1, 2003, through June 30, 2006. Article V, Section 1 of the Agreement provides that the School Board can dismiss employees only for just cause. Article XXI, Section 1.a. of the Agreement provides that the School Board can suspend or dismiss instructional employees during the school year if the charges against him or her are based on Florida Statutes. Finally, Article XXI, Section 2 of the Agreement provides that dismissals are to be effectuated in accordance with the Florida Statutes, including Chapter 120, Florida Statutes. Prior to the expiration of his temporary teaching certificate, Mr. Varona began his efforts to qualify for a permanent Florida Educator's Certificate.2 He decided to take coursework through an entity named Moving on Toward Education and Training ("MOTET"), which was operated by Dr. William McCoggle, a teacher and coach at Palmetto Senior High School in Miami, Florida. Mr. Varona learned through colleagues who had participated in the program that Dr. McCoggle and MOTET offered courses for which teachers could obtain college credit that could be used to satisfy the requirements for certification. Mr. Varona telephoned Palmetto Senior High School and inquired about certification courses. He was directed to Dr. McCoggle, who told Mr. Varona where and at what time he needed to appear to register for courses. Mr. Varona arrived at Palmetto Senior High School at the appointed time and met with Dr. McCoggle. There were several other teachers present at the time. Mr. Varona obtained information on the classes and was told by Dr. McCoggle to come the next week and bring a document showing the courses that he needed to take, since Mr. Varona had already taken coursework at Florida International University and Miami-Dade Community College. Mr. Varona returned the following week and brought the information Dr. McCoggle had requested. He registered for three or four classes and paid Dr. McCoggle and MOTET $2,000.00 as tuition. When Mr. Varona went to Palmetto Senior High School for the third time, Dr. McCoggle gave him a sealed, white envelope and told him to take the envelope and turn it in, unopened, at the School Board's Certification Office. Mr. Varona gave the unopened envelope to Ruby Howard at the School Board's Certification Office. The envelope contained a transcript showing credit for college courses from Eastern Oklahoma State College. Mr. Varona did not attend any classes, complete any assignments, take any tests, or engage in any academic effort whatsoever to obtain the college credits reflected on the transcript from Eastern Oklahoma State College. At the times material to this proceeding, Mr. Varona had substantial family responsibilities and was in poor health, and he decided at some point that he was going to leave the teaching profession and would not pursue a permanent Florida Educator's Certificate. He was, however, at the times material to this proceeding, a classroom teacher employed by the School Board. Although he was later notified that the college credits he had submitted to the Certification Office were no good and that he would be entitled to a small refund of the money he paid for the classes, he did not pursue the matter further because of his decision to leave teaching and not pursue permanent certification. The activities of Dr. McCoggle and MOTET and the Miami-Dade County school teachers who obtained credit without attending classes or making any academic effort were the subject of a grand jury investigation and report, filed July 18, 2005, that was submitted to the Superintendent of the Miami-Dade County school system. Mr. Varona's name was included in the list of 106 teachers who had submitted transcripts showing college credit for classes they had not attended, and the School Board initiated investigations of each of these teachers. The matter was widely reported in the local newspapers. The evidence presented by the School Board is sufficient to establish that Mr. Varona committed misconduct in office and an act of immorality. Although Mr. Varona denied having knowingly submitted false college credits to the School Board's Certification Office for purposes of accumulating credits toward his professional certification, his denials are not persuasive. Under the circumstances, he should have known that the envelope contained a transcript showing college course credit and he knew he had made absolutely no academic effort to obtain those credits. Mr. Varona's testimony that he asked Dr. McCoggle on numerous occasions when the classes would be held is, likewise, unpersuasive; after a time he must have realized that there would be no classes held, and his failure to withdraw the Eastern Oklahoma State College transcript from the Certification Office supports the reasonable inference that he intended these credits to be applied toward professional certification.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Miami-Dade County School Board enter a final order finding that Nestor Varona violated Section 1012.33(1)(a) and (6)(a), Florida Statutes, by committing misconduct in office and dismissing Mr. Varona from his employment. DONE AND ENTERED this 15th day of June, 2007, in Tallahassee, Leon County, Florida. S PATRICIA M. HART 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 15th day of June, 2007.
The Issue Whether or not Respondent appropriately denied Petitioner's retirement benefits and what, if any, amount Petitioner must repay.
Findings Of Fact Petitioner Dr. Evelyn A. Sebree was employed by Lake-Sumter Community College (LSCC) for over 25 years. LSCC is an agency within the State of Florida Retirement System (FRS). Petitioner was employed by LSCC as an instructor and later as a part- time counselor. She was subsequently named the Director of Financial Aid and the Executive Director of the Foundation. She served simultaneously in both capacities for many years. The Foundation is the fund-raising arm of LSCC and a nonprofit corporation separate from LSCC with its own governing board, bylaws and constitution. Only an employee of the college can be Director of the Foundation, but the Foundation Board is not made up of LSCC employees. In her LSCC employment as Director of Financial Aid, Petitioner was responsible for administering the college's student financial aid program. Her immediate supervisor in this employment category was Dr. Dixie Lee, and Petitioner reported ultimately to the Dean of Student Services. In this employment capacity, she administered federal, state, institutional and private grants, loans, and scholarship programs, including but not limited to Pell Grants, the Basic Education Opportunity Grant Program, the GI Bill, and work- study programs. She supervised three work-study students, who were part-time LSCC employees, and a financial aid specialist, a full-time LSCC employee, and had her own private office on campus. As Executive Director of the Foundation, Petitioner was responsible for raising money for the college and for scholarships. She reported to the LSCC President, was responsible for fund raisers, making contacts with potential donors, and soliciting money from various wealthy people for the college. During her LSCC employment as Financial Aid Director and collateral service as Executive Director of the Foundation, Petitioner developed many influential contacts in the fields of higher education and financial administration. These contacts were not only statewide, but also national. Petitioner also served on many state and national boards, including: State Financial Aid Association, Board of Directors of the Southern Association of Student Financial Aid, National Board of Student Financial Aid Directors, and the Florida Association of Community College and College Board Council on Higher Education Services. After her retirement as an employee of LSCC, Petitioner could no longer serve as Executive Director of the Foundation, but Petitioner continued to serve on the Board of the Foundation, as a private citizen. As a result of her contacts with many influential people, Petitioner considered herself to be a mover and a shaker in the community. Petitioner decided to retire after 29 years of service at the college when she was offered an early retirement incentive package. The package included paid health insurance for three years and partial salary for three years. Prior to her retirement, DOR mailed Petitioner a brochure. The brochure advised the Petitioner of the re-employment limitations. Prior to receiving her first retirement warrant, DOR mailed Petitioner a letter, again advising her that benefits would be suspended if she was re-employed within twelve months of her retirement date. As an agency within the FRS, LSCC was mailed several numbered memoranda advising reporting agencies to avoid "sweetheart" arrangements by hiring recently retired employees to fill positions within the system. Petitioner retired, effective July 1, 1992. In the fall of 1992, the LSCC college president quit. Dr. Kenneth Stack was appointed acting president while the LSCC Board of Trustees mounted a search for a permanent replacement president. The LSCC Board of Trustees is the governing board of the college which, among other duties, hires and fires the college president, sets college policy and adopts a budget. The LSCC Board of Trustees decided the new college president should be someone from Florida. They desired a college president who would have knowledge of the Florida educational system. The LSCC Board of Trustees had previously hired two college presidents, one six years previously and one eleven years previously. In each instance, a search committee made up of faculty, students, trustees, townspeople and residents of the two counties, Lake and Sumter, had been formed, and the Board had contracted with an outside "facilitator" to focus the presidential search and assist the presidential search committee. The last facilitator had been hired in 1986 from a professional group of "consultants" from Washington, D.C. This time, in 1992, LSCC's Board of Trustees decided they needed to hire a facilitator with knowledge of LSCC, the geographic area, college personnel within the state, and the Florida Community College System. The Board also believed that an in-state facilitator would help achieve their ultimate desired result of obtaining a qualified Floridian to fill the vacant LSCC presidency. Petitioner was nominated for facilitator by Board of Trustees member, Randall Thornton, an attorney. Due to her past employment and community reputation, Petitioner's education, training, experience, and status in the community were well known to all Board members. The Board considered facilitator candidates from the University of Florida and Florida State University also, but Petitioner was selected instead. All Board members cast a vote for their choice of facilitator. One consideration in favor of Petitioner was that she would accept a contract capped at $5,000, while the last professional out-of-house facilitator's total cost to LSCC was nine times that figure, or roughly $45,000. Petitioner was appointed Presidential Search Committee Facilitator pursuant to a contract drawn by attorney Randall Thornton. This contract significantly paralleled the contract between LSCC and its last out-of-state facilitator in that Mr. Thornton used the old contract as his model for the new one. For purposes of this proceeding, the significant provisions of Petitioner's contract are that: Petitioner was to be paid at the rate of $40 per hour up to a maximum of $5,000, regardless of how long the search took to complete. Clearly, it may be inferred that Petitioner's services would end when a college president was selected. In order to be paid, Petitioner was to bill the Board of Trustees monthly for hours worked and for expenses. She was to be reimbursed for any expenditures or expenses in addition to her hourly fee for personal services. To minimize costs to LSCC, Petitioner's travel expenses were geared to Chapter 112 F.S., normally covering state employees. She also was required to use the college's Watts line "to the extent possible," but she would be reimbursed for all her out of pocket expenses, including but not limited to telephone calls, fax, express mail, travel, and similar items. Because this was a personal services contract, Petitioner could not delegate her duties except with express prior agreement of the Board, but there was no specific prohibition on her hiring subordinate support service helpers. Either LSCC or Petitioner could cancel the contract upon 30 days' written notice without incurring liability to each other. However, Petitioner agreed to indemnify and "hold harmless" the college both for her own negligence in conducting the search and for any other liability arising out of her activities during the search. She was required to comply with equity rules and regulations. This requirement may be inferred to reiterate the obvious, that she, like any other citizen, was bound to comply with all equal opportunity and labor laws for appropriate hiring practices. One contract clause specifically denied Petitioner any employee, servant, or agency authority to bind or incur liability for the college, and described her as an independent contractor. Mr. Thornton modeled LSCC's contract with Petitioner on the contract drafted by the 1986 facilitator from Washington, D.C., who was clearly an independent contractor. According to Dr. Kenneth Stack, the contract as finalized is similar to the standard contract by which LSCC contracts for outside labor, power, and such professional services as those of architects, normally considered to be independent contractors. This facilitator contract differs significantly from Petitioner's employment contract as Director of Financial Aid for LSCC prior to her retirement on July 1, 1992, the form of which employment contract is prescribed by the Florida Community College System. After negotiating with Mr. Thornton, who was acting for the Board in the place of the college's general counsel, Petitioner had input into the final version of the facilitator contract. Exactly what Petitioner's input was, is unclear. Although there is some testimony that the former facilitator was paid in a lump sum of $20,000, there is also testimony that the total payments to that facilitator by LSCC totalled $45,000. Although this fact, together with the contents of the final contract between Petitioner and LSCC is not sufficient to infer that the prior out-of-state facilitator was also paid at an hourly rate up to a certain capped amount plus an expense reimbursement, it is sufficient to infer that expense reimbursement was part of the prior out-of-state independent contractor's agreement with the college. Petitioner's $40/hour fee as "facilitator" constituted a higher hourly rate than she had been paid when employed by LSCC as its Financial Aid Director prior to retirement. Petitioner was not covered for health insurance or unemployment or workers' compensation benefits under her contract as presidential search facilitator. No social security, retirement, or income tax was withheld by LSCC from her hourly rate as facilitator. LSCC provides all its regular employees with these fringe benefits. In practice, as LSCC presidential search committee facilitator, Petitioner used her own telephone and the LSCC telephone. She worked out of an established office in her own home where she simultaneously cared for her 92 year old mother. She also had the use of, and occasionally utilized, the Board room at LSCC which the Board of Trustees had been made available to her and the search committee whenever the Board was not using it. Because there was no college president, the secretary assigned to the president was available for Petitioner's use, and this secretary did some minimal work for Petitioner, primarily copying materials for the search committee members. An employee of LSCC who regularly deals with equity matters also was available to Petitioner and the search committee for advice as needed. As facilitator, Petitioner utilized a comprehensive notebook compiled by a prior Chairman of the LSCC Board of Trustees in the course of the 1986 presidential search. She also utilized two professional books she specifically purchased in order to fulfill her contract with LSCC. Petitioner gave the Board-appointed search committee their direction, worked with a subcommittee to design the advertisement for position, received all applications, analyzed them, and copied and distributed them to the search committee. After the committee read and ranked the applications and selected the finalists, Petitioner did background checks on the finalists and held personal conversations with applicants' employers, prior employers, and colleagues to get a "feel" for each applicant's qualifications. She then reported these findings to the search committee, and apparently another "cut" was made. She coordinated all visits, receptions, and committee interviews for the last five presidential finalists. In this process, she took no direction from LSCC's Acting President, Dr. Kenneth Stack, who was an applicant, and the Board of Trustees' input was more in the nature of questions concerning what was she doing and what were the search committee's time frames, than directions on what to do or how to do it. On her own initiative, Petitioner gave interim reports on the search committee's progress, usually at the regularly scheduled monthly Board of Trustees meetings, until the final presidential candidates were chosen, at which time the Board met weekly for the specific purpose of selecting the college president. Petitioner was required to bill her hours and expenses monthly but was not required to appear before the Board of Trustees. She was never summoned to appear before the Board. She had to ask to be put on the Board agenda each time she gave a report. On the basis of her education, training, experience, investigation, and analysis, Petitioner made suggestions to the Board of Trustees as to search procedures, deadlines, the profile of the president, and advertising the college presidency position. The LSCC Board of Trustees voted on the selection of a college president in April 1993. By its terms, Petitioner's contract terminated with the selection of a college president. The presidential search was not a regularly established function of the college, although employment of a college president was integral to the college's function and purpose. The search committee and search committee facilitator were not regularly established job positions with the college. Petitioner did not incorporate because no state license or certification is required for her services. She also did not advertise her services because she planned to work only intermittently as an independent contractor/consultant in a variety of higher education/administrative fields, relying on her professional networking to get offers of specific projects. At the time of formal hearing, she had the potential for contracts to do financial aid counseling at Seminole Community College and to rewrite a policy and procedure manual for South Florida Community College. LSCC paid Petitioner approximately $435 for her work for LSCC during the month of October 1992, plus some reimbursed expenses. In November 1992, DOR advised Petitioner it had determined that she was an employee and not an independent contractor. Prior to advising Petitioner, DOR requested the federal Internal Revenue Service (IRS) render its opinion. This opinion concluded that Petitioner was an employee of LSCC rather than an independent contractor, but the IRS opinion is not binding upon DOR or dispositive of this instant de novo proceeding pursuant to Section 120.57(1) F.S. It is noted that the review sheets filled out by LSCC and Petitioner and utilized by DOR and the IRS were not as detailed as the evidence adduced at formal hearing, and in some respects the answers were unintentionally misleading. At some point, DOR demanded approximately $435 from Petitioner and $1,018.79 from LSCC for retirement benefits DOR had paid Petitioner during October 1992, but apparently DOR now seeks $2,037.58 solely from Petitioner. Because of the controversy with Respondent DOR, Petitioner did not accept any payment from LSCC pursuant to their facilitator contract after October 1992, when she was notified by DOR that any payment from LSCC for employment would result in a DOR repayment demand and/or withholding of her FRS benefits by DOR.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that the Department of Management Services, Division of Retirement enter a final order absolving Petitioner of any pay back to FRS for the month of October 1992. RECOMMENDED this 29th day of October, 1993, at Tallahassee, Florida. ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The De Soto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of October, 1993. APPENDIX TO RECOMMENDED ORDER 93-1592 The following constitute specific rulings, pursuant to S120.59(2), F.S., upon the parties' respective proposed findings of fact (PFOF). Petitioner's PFOF: The factual matters are accepted. The legal argument is covered in the Conclusions of Law. Accepted (FOF 10). Rejected as argument only. Covered in substance in FOF 3 and 23 and the Conclusions of Law. Accepted (FOF 25). Accepted except as to Conclusion of Law which is covered in the Conclusions of Law. (FOF 22-25). Accepted except to the degree unnecessary, subordinate or cumulative (FOF 16-19). Accepted (FOF 12-15). Constitutes a request to rule certain evidence irrelevant. Not a PFOF. Covered in FOF 27 and the Conclusions of Law. Accepted except to the degree unnecessary or subordinate. (FOF 27). Rejected as related to matters outside the record which apparently occurred after formal hearing. Similar material covered in FOF 27. Respondent's PFOF 1-17 Accepted (FOF 1-16). Accepted in part and rejected in part upon the greater weight of the record as set forth in FOF 15. Accepted (FOF 23). Rejected as a Conclusion of Law. See, Conclusions of Law. Accepted (FOF 17, 22). Rejected because as stated it is misleading. Covered in FOF 17-19. 23-25 Accepted (FOF 17-25). 26-27 Accepted (FOF 9). 28-29 Accepted (FOF 29). 30 Accepted (FOF 30) COPIES FURNISHED: A. J. McMullian, III, Director Division of Retirement Cedars Executive Center, Bldg. C 2639 North Monroe Street Tallahassee, Florida 32399-1560 Sylvan Strickland, Esquire General Counsel Department of Management Services Knight Building, Suite 309 2737 Centerview Drive Tallahassee, Florida 32399-0950 Larry D. Scott, Esquire Department of Management Services Division of Retirement 2639 North Monroe Street, Building C Tallahassee, Florida 32399-1560 Ms. Evelyn A. Sebree Post Office Box 150 Umatilla, Florida 32784
