The Issue Whether Petitioners received salary overpayments from the Agency for Persons with Disabilities.
Findings Of Fact At all times material hereto, Petitioners Ileana Toledo, Norma Pedraza, and Lil Guerrero have been career service employees of Respondent. The Department of Management Services (“DMS”) has a classification and pay system that is used by Respondent, and DMS is responsible for designating employment positions within Respondent. A position is either included for overtime pay or excluded from overtime pay. At issue is whether Petitioners erroneously received monetary compensation for overtime hours worked after their position was reclassified from an included career service position to an excluded career service position. Prior to March 28, 2013, Petitioners held the position of Human Services Counselor III, which was designated by DMS as an included career service position. On March 26, 2013, Respondent proposed to reclassify Petitioners’ position from Human Services Counselor III to Human Service Program Analyst, which is designated by DMS as an excluded career service position. The proposed reclassification resulted from a reorganization of Respondent’s regional offices, and an effort by Respondent to standardize its functions, services, and types of positions in its regional offices. In a letter dated March 26, 2013, Petitioners were advised by Respondent’s Human Resources Director, Dale Sullivan, that if they accepted an offer to reclassify their position from Human Services Counselor III to Human Service Program Analyst, their “current status and salary will remain unchanged.” Notably, the March 26, 2013, letter makes no specific mention of overtime. On March 28, 2013, Petitioners accepted Respondent’s offer of employment to reclassify their position from Human Services Counselor III to Human Service Program Analyst. Typically, employees of Respondent who are appointed to new positions are placed in probationary status, as opposed to permanent status, and are required to review and execute new position descriptions. However, the reclassification of Petitioners’ position by Respondent was not typical. As part of the reclassification of Petitioners’ position to Human Service Program Analyst, Respondent provided Petitioners with a new position description. However, Petitioners’ job duties, salaries, and permanent status remained the same as they had been in their prior position of Human Services Counselor III. Petitioners read and acknowledged their receipt of the new position description on March 28, 2013. On the first page of the position description, there is a heading titled “Position Attributes”. Under this heading, the term “Overtime” is shown, followed by two boxes, “Yes” and “No.” The “No” box is marked, indicating that Petitioners are not eligible to work overtime hours. The position description further indicates that Petitioners would be career service employees. However, the position description does not specifically include the terms included or excluded. Prior to the reclassification, Petitioners were paid bi-weekly based on an 80-hour pay period. If they worked more than 80 hours in a pay period, they received additional monetary compensation for their overtime hours. Payment for Petitioners’ regular and overtime work hours was based on employee timesheets submitted to the People First leave and payroll system. After the reclassification of their position, Petitioners continued to work overtime in excess of their bi-weekly contractual hours, despite the prohibition in the position description. Petitioners were required to obtain approval by their supervisors before being allowed to work overtime. Petitioners’ overtime was approved by their supervisors after the reclassification despite the prohibition on working overtime hours as indicated in the position description. During the pay periods of March 29-April 11, 2013; April 26-May 9, 2013; and May 10-June 23, 2013, Petitioner Ileana Toledo worked a total of 28 hours of overtime, and received monetary compensation in the amount of $464.63 from Respondent for these overtime hours. For the pay periods of March 29-April 11, 2013; April 12-April 25, 2013; April 26-May 9, 2013; and May 10-May 23, 2013, Petitioner Norma Pedraza worked a total of 32.25 hours of overtime, and received monetary compensation in the amount of $624.14 from Respondent for these overtime hours. For the pay periods of March 29-April 11, 2013; April 12-April 25, 2013; April 26-May 9, 2013; and May 10-May 23, 2013, Petitioner Lil Guerrero worked a total of 25.50 hours of overtime, and received monetary compensation in the amount of $426.65 from Respondent for these overtime hours. Respondent’s payment of monetary compensation to Petitioners for the overtime hours worked after the reclassification of their position to Human Service Program Analyst occurred due to an administrative coding error, thereby resulting in the overpayment of monetary compensation to Petitioners by Respondent in the amounts the Respondent seeks to recover from Petitioners. The administrative coding error occurred because of Respondent’s failure to note the change from included to excluded on the People First system following the reclassification of Petitioners’ position. The error occurred due to an honest mistake, and resulted in the overpayments at issue. Petitioners should not have received monetary compensation for their overtime hours in the Human Service Program Analyst position because a Human Service Program Analyst position is an excluded career service position. An excluded career service employee must earn and receive regular compensation leave credits for overtime work, but cannot receive monetary compensation for overtime work. On the other hand, included career service employees, such as those persons in Petitioners’ previous position of Human Services Counselor III, must receive monetary compensation for overtime hours worked, rather than regular compensatory leave credits. Neither Petitioners nor their supervisors were aware at the time that the overpayments were made that Petitioners could not receive monetary compensation for their overtime hours, but must instead receive regular compensatory leave credits. At hearing, Petitioners did not dispute the amounts and hours of overtime worked as set forth in paragraphs 12-14 above. In accordance with the Department of Management Services’ Bureau of Payroll Manual, the amount of salary overpaid, and the amount sought to be repaid, was calculated as set forth in paragraphs 12-14 above. When an agency has determined that a salary overpayment has occurred, it is required to follow procedures set forth in the above-referenced manual, to seek repayment. Respondent followed those procedures in making the calculations relevant in this case.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered by the Agency for Persons with Disabilities determining that: 1) Petitioner Ileana Toledo was erroneously paid salary in the amount of $464.63; 2) Petitioner Norma Pedraza was erroneously paid salary in the amount of $624.13; 3) Petitioner Lil Guerrero was erroneously paid salary in the amount of $426.65; and 4) Petitioners are entitled to be compensated by Respondent through compensatory leave credits for the overtime hours worked as reflected in paragraphs 12-14 above. DONE AND ENTERED this 25th day of November, 2013, in Tallahassee, Leon County, Florida. S DARREN A. SCHWARTZ 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 25th day of November, 2013.
The Issue Whether Respondent resigned from her position in Career Service by abandonment while employed by the Department of Health and Rehabilitative Services.
Findings Of Fact Prior to August 7, 1989, Gladys Dozier was employed by HRS as a clerk typist. On this date she was absent without authorized leave. On August 7, Respondent called her supervisor to tell her that she wasn't feeling well and would be late coming in. She came in at 9:57 a.m., and at 11:15 a.m. told her supervisor she wasn't feeling well and needed to go home. She left work around 11:20 a.m. On August 8, Respondent again called her supervisor to advise her that she wasn't feeling well but would come in later that morning. Respondent did not come to work that day and was not authorized leave. On August 9, Respondent again called in to say she wasn't feeling well and would not be in for the remainder of the week, but would report to work on August 14, 1989. She was then advised that she needed to bring in a medical statement from her doctor that she was unable to come to work those days she had missed. On August 11, 1989, Respondent again called the office and was reminded that she needed a medical statement for the time she had been absent. By certified letter dated August 15, 1989, and received by Respondent on August 16, 1989, Respondent's immediate supervisor, Mary Simmons, advised Respondent that she was expected at work not later than August 17, 1989, that the medical statement she had sent to the office August 14, 1989 was insufficient to justify more than one day's absence and that if she did not return to work by August 17, 1989, action would be taken to terminate her employment with HRS. Respondent did not return to work. By certified mail dated September 6, 1989 Respondent was advised that she had been absent from work without approved leave since August 14, 1989 and that pursuant to Rule 22A-7.010(2)(c), Florida Administrative Code, she is deemed to have abandoned her position with HRS and to have resigned from the career service system as of the close of business September 7, 1989. Thereafter Respondent submitted her undated letter which was received at the Division of Administrative Hearings on October 26, 1989, and these proceedings followed.
Recommendation It is recommended that the appeal of Gladys Dozier from the determination by HRS that she abandoned her position with the department be dismissed and her resignation from the Career Service be affirmed. ENTERED this 17th day of January, 1990, in Tallahassee, Florida. K. N. AYERS 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 17th day of January, 1990. COPIES FURNISHED: Thomas C. Caufman, Esquire Aletta Shutes Department of Health and Secretary Rehabilitative Services Department of Administration 701 94th Avenue North 435 Carlton Building St. Petersburg, FL 33702 Tallahassee, FL 32399-1550 Gladys Dozier Augustus D. Aikens, Jr. 2032 Quincy Street General Counsel St. Petersburg, FL 33711 Department of Administration 435 Carlton Building William A. Frieder, Esquire Tallahassee, FL 32399-1550 Department of Administration 435 Carlton Building Tallahassee, FL 32399-1550 Sam Power Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700 John Miller General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700
The Issue The issues presented for decision in the above-styled matter are as follows: Can tenure be denied, as opposed to being granted or postponed, during the fifth year of employment? If so, was petitioner wrongfully denied tenure? Did respondent wrongfully determine that petitioner's employment contract would not be renewed beyond June of 1975? 4 Was petitioner wrongfully terminated before he received a due process hearing?
Findings Of Fact Based upon the admissible oral ad documentary evidence adduced at the hearing, the following pertinent facts are found: Petitioner Jeffrey Rosner was hired by the respondent in September of 1969 as an Assistant Professor in the Department of Political Science, College of Social and Behavioral Sciences, a tenure-earning position. He was reappointed to this position for the school years 1970-71, 1971-72, 1972-73, 1973-74, and 1974-75. During the period of time between September, 1969 and June of 1975, petitioner received and reviewed student evaluations of his teaching effectiveness. Although his student evaluations improved over the five-year period in question, petitioner's evaluations from students were consistently below the college median. Also, for the calendar year 1973, rating scores were assigned to all fifteen faculty members of petitioner's department. In the area of teaching, petitioner ranked fourteenth. 1/ At all times, petitioner's primary assigned duty was teaching. At all times relevant to this proceeding - from the time petitioner received his first appointment to the present time - the Florida Board of Regents had established and set forth three areas in which faculty members would be evaluated for purposes of tenure, promotion, salary and retention. These three areas are teaching, research and other creative activities and service. Also, "tenure" has been consistently defined in terms of a high degree of competence in the three areas mentioned above. The respondent University, at least since 1970, has employed the use of "tenure forms" in order to gather information from the individual faculty members being considered for tenure in the areas of teaching, research and service. Such forms may be supplemented as was done in the instant case by a six-page supplementary statement. In the middle of his fifth year of continuous employment at the University of South Florida, petitioner was considered for tenure. It was the common practice in the Political Science Department to consider faculty members for tenure during their fifth year. The faculty member himself is not given a choice as to whether he wishes to be considered or postponed for tenure. At the time petitioner was considered for tenure, from December of 1973 through March of 1974, the procedure utilized in the Political Science Department was as follows. The tenured faculty members of the Department review the candidate's file, which is at least partially prepared by him, and then vote by secret ballot to either grant, deny or defer the tenure decision. An advisory committee consisting of four persons (three acting and an alternate) elected by the faculty members also reviews the candidate's file. Each member of the advisory committee makes an independent evaluation of the candidate and then the members' get together, rate the candidate on a scale of 1 to 5 in the areas of teaching effectiveness, research and creative activity, service and overall quality. The committee members than vote upon the recommendation to be made to the Department Chairman to either grant, deny or defer tenure. The Department Chairman then reviews everything to date, rates the candidate on the same areas and makes his decision. The candidate is then notified of the Department's decision and is given an opportunity to request to meet with the Chairman and/or the advisory committee to discuss reconsideration of the decision. Thereafter, the recommendation is finalized and everything is sent to the Dean of the College. The Dean recommends to the Vice president of Academic Affairs and the Vice President recommends to the President of the University. The above procedure was followed in Dr. Rosner's case and the following transpired: The tenured faculty, consisting of six persons, voted four opposed to granting tenure, two to defer the tenure decision and none in favor of granting tenure. During its first consideration, the departmental advisory committee, consisting of three faculty members - one tenured and two non-tenured - voted as follows: two opposed to granting tenure, one to defer the tenure decision and none in favor of granting tenure. That committee found that while petitioner's areas of specialization were relevant to the Department's needs, plans and goals, his performance in the categories of evaluation - teaching, research and service - "is insufficiently high to justify granting him tenure." On a scale of 1 to 5 (1 - below average, 3 - average, 5 - above average) the committee rated petitioner 2 in teaching effectiveness, 2 in research and creative activity, between 2 and 3 in service and 2 in overall quality. Upon the first evaluation, the Department Chairman, Dr. Robert Bowman, voted that he was opposed to granting tenure. He rated Rosner between 2 and 3 in teaching effectiveness, 1 in research and creative activity, between 3 & 4 in academic advisement, between 2 & 3 in service and 2.33 in overall quality. The Chairman also found that Rosner's talents and resources did not fit the needs, plans and goals of the Department. Upon reconsideration at petitioner's requests the advisory committee and the Chairman rated Rosner 2.5 in teaching effectiveness, 1.5 in research and creative activity, 2.5 in service activities and 2.0 as the overall evaluation. (Attachments 1 through 4 of Exhibit 1 lists the material relied upon in arriving at these ratings). The Department therefore recommended "denial of tenure and absolute termination at the end of the 1974-75 contract period." The Dean of the College of Social and Behavioral Sciences, Dr. Travis Northcutt, having the choices set forth on a form to recommend either the granting, denying or deferring of tenure, voted to recommend the denial of tenure in Rosner's case. He based this decision on a full review of all materials submitted by Rosner and the file sent by the Chairman. The Vice president for Academic Affairs, Dr. Carl Riggs, also recommended that tenure be denied. On March 15, 1974, Dr. Riggs notified petitioner of his decision not to recommend to President Mackey that Rosner be granted tenure. Petitioner was further notified by the same letter that "your employment will not be renewed after Quarter III of the academic year 1974/75." Petitioner was further advised of the opportunity for review of cases in which a faculty member asserts that his contract of employment is not being renewed for constitutionally impermissible reasons. Upon petitioner's request, Dr. Riggs explained in writing the reasons for the non-renewal of petitioner's appointment. The reasons listed related to the denial of tenure. This memorandum is dated June 19, 1974. On December 13, 1974, Dr. Bowman wrote petitioner a letter denying his request to be considered for tenure for 1975-76 for the current (1974-75) evaluation cycle, because of the previous decision to deny tenure and terminate his appointment effective June 19, 1975. On May 22, 1975, Dr. Rosner filed his complaint with the University President and asked that it be referred to the Academic Relations Committee. After receiving the Committee's report dated June 18, 1975, the President determined that he was not prepared to render a decision in petitioner's favor, and ordered that the complaint be considered in a plenary proceeding as defined in F.A.C. 6C-5.08(3). On July 16, 1975, the Division of Administrative Hearings received a letter from Steven Wenzel, General Counsel of the University, requesting, on behalf of the President that a Hearing Officer be assigned to conduct the plenary hearing. The undersigned Hearing Officer was so assigned, and, on July 31, 1975, notified Dr. Rosner of certain procedural problems relating to the complaint. Between this date and the date of the prehearing conference in this matter, numerous inquiries were made by the undersigned to the petitioner and his counsel as to the status of the case and anticipated dates for a hearing. Little, if any, response was forthcoming until early October, when this case, along with six others, was set for prehearing conference. On September 6, 1975, Dr. Rosner sent a letter to president Mackey stating: "Because it now appears that the administrative hearing in my case will not be scheduled until after classes begin for the fall term, I am requesting that I be given an interim faculty appointment, beginning with the fall term and continuing until the case is decided." Dr. Mackey responded on September 12, 1975, that ". . .Inasmuch as your contract expired according to its terms following the tendering of the appropriate notice of non-renewal, I am not prepared to direct that you be reemployed during the pendency of your hearing."
Recommendation Based upon the findings of fact and conclusions of law recited above, it is recommended that the complaint be dismissed for the reasons that petitioner did not meet his burden of demonstrating that the decisions to deny tenure and to not renew his employment contract were unlawful. Respectfully submitted and entered this 29th day of December, 1975, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings Room 530, Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of December, 1975.
The Issue Whether the School Board of Miami-Dade County (School Board) committed the unlawful employment practices alleged in the Petition for Relief filed by the Petitioner and, if so, what relief should he be granted by the Florida Commission on Human Relations (FCHR).
Findings Of Fact The Petitioner is a Black male who, at all times material to this proceeding, was employed by the School Board both as a full-time K-12 teacher and as a part-time evening adult education teacher. The Petitioner continues to be employed by the School Board in his full-time position. His complaint in this case does not arise from any matters concerning his full-time position. The issues in this case arise from matters that occurred with regard to the Petitioner's employment as a part-time evening adult teacher. At all times material hereto, the School Board was 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. The School Board adheres to a policy of nondiscrimination and provides complaint procedures to assure compliance with federal and state laws which prohibit discrimination. It is the policy of the School Board that no person will be denied employment on the basis of race or color. In December of 1988, the Petitioner was first hired by the School Board as a part-time teacher. In August of 1998, the Petitioner became a full-time teacher in the K-12 school day program and was assigned to teach in a middle school. The Petitioner is still employed as a full-time teacher in the K-12 school day program and continues to teach in a middle school. In addition to the Petitioner's full-time teacher position, in recent years the Petitioner has also worked as a part-time teacher in the evenings at the South Dade Adult Education Center ("Adult Center"). At the Adult Center the school year is divided up into three terms which are commonly referred to as trimesters. The Adult Center employees part-time teachers on a term basis, one term at a time. During each school year, the first term starts in August and ends in December. The second term starts in January and ends in April. The third term starts in April and ends in August. The Petitioner worked at the Adult Center for several terms, including the following trimesters: 2002-1 (first trimester of the 2002-03 school year), 2002-2 (second trimester of the 2002-03 school year, 2002-3 (third semester of the 2002- 03 school year), and 2003-1 (first trimester of the 2003-04 school year). During his employment at the Adult Center, the Petitioner taught English for Speakers of Other Languages ("ESOL"). ESOL courses are offered at several levels ranging from ESOL-PRE, which is the most basic course, through ESOL Levels 1 through 5, with Level 5 being the most advanced course. At the Adult Center student attendance is voluntary. The Adult Center receives funds from the State based on the number of students who complete the "Literacy Competency Points" ("LCPs"). At the Adult Center, the initial assignment of students to a particular course is done by the registration clerk. However, once assigned to a particular course, students have the choice of requesting a transfer to another class or of withdrawing from the course altogether. The administrators at the Adult Center are inclined to grant student requests for transfers whenever possible in order to reduce the likelihood that the student might withdraw from the program. During the first trimester of school year 2002-03 (term 2002-1), the Petitioner was assigned to teach an ESOL Level 4 class with an enrollment of thirty-one students. During the second semester of school year 2002-03 (term 2002-2), the Petitioner was assigned to teach two classes of ESOL Level 1; one class with 61 students and the other with 62 students. During the third trimester of school year 2002-03 (term 2002-3), the Petitioner was assigned to teach one class of ESOL Level 1 with an enrollment of 41 students. For the first trimester of school year 2003-04 (term 2003-1) the Petitioner was assigned to teach two classes of ESOL-PRE with an enrollment of 5 students each. These were "targeted ESOL Classes" under the Skills for Academic, Vocational, and English Studies ("SAVES") program. The SAVES program requires smaller ESOL classes; usually between 8 and 15 students. SAVES students qualify for free textbooks, free tuition, free child care, and free bus transportation. School Principals have the discretion to make SAVES classes even smaller. At the Adult Center, under School Principal Gilda Santalla's discretion, enrollment for SAVES classes had to be between 5 and 10 students in order for a SAVES class to remain open. In order to meet the needs of the students and the needs of the program, the class assignments change each trimester for several teachers, not just for the Petitioner. The Petitioner was assigned to teach lower levels of ESOL because the student demand for the lower level of ESOL courses was higher than the demand for Level 4 and 5 ESOL courses. During the time period material to this case, demand for ESOL Levels 4 and 5 was "dwindling." In the first semester of the 2003-04 school year (term 2003-1) the Petitioner was assigned and accepted to teach a course in the SAVES Program. The SAVES Program is funded by the U.S. Department of Health and Human Services through the Florida Department of Children and Family Services, Office of Refugee Services. It was created to address the training needs of the refugee population. Students participating in the SAVES Program must meet eligibility criteria imposed by the funding program in order to qualify for "refugee" status. Ms. Santalla assigned the Petitioner to teach ESOL-PRE SAVES classes because she thought he was well-qualified for the position. The Petitioner had a counseling certification and also in his full-time teaching job he had experience teaching children with special needs. Teaching children with special needs often requires a great deal of patience. Many members of the SAVES student population had special needs. The administrators at the Adult Center selected the Petitioner for the SAVES program because they believed he "had the skills to build this program and to teach those students." When planning for the first semester of the 2003-04 school year, the administrators at the Adult Center were confident that, because of the large demand for ESOL-PRE and ESOL 1 classes, they would have at least 8 to 10 people in each SAVES class. Initially, 27 SAVES eligible students were identified. The following term the number went up to 50 SAVES students, and more recently there were approximately 120 SAVES eligible students. The standard employment contract for part-time adult education teachers, which is the type of contract signed by the Petitioner each time he taught at the Adult Center, clearly specifies that the employment is for a specific course for a specific time period delineated in the master schedule. The standard part-time adult teacher employment contract also includes the following language: Nothing herein shall be construed to grant the Part-Time Teacher an expectation of continued employment beyond the length of the course designated by this contract. * * * 4. The Part-Time Teacher shall not be dismissed during the term of this contract except for just cause as provided in [Section] 231.36(1)(a), Florida Statutes. Notwithstanding the dismissal for just cause provision of this contract, the Part-Time Teacher is responsible for maintaining the minimum required student enrollment for the course taught. Classes with fewer than the required number of students are subject to cancellation. Cancellation of a class will automatically terminate the School Board's obligations under this Contract. The Adult Center's Teacher Handbook also states: PART-TIME TEACHING ASSIGNMENTS South Dade Education Center employs instructors in a part-time capacity. Part- time teachers are those who are paid on an hourly basis. Part-time teachers are hired as needed for a trimester. There is no guarantee that a class may continue the entire trimester if enrollment falls below the required number of students. Classes may be closed and employment may cease. A written contract, per trimester, is issued to all teachers. Before each term all part-time teachers are given a Teacher Agreement indicating their new assignment. A teacher may be assigned to more than one class per semester. If so, and if only one class is cancelled due to low enrollment, the teacher can continue to teach the remaining classes that were not cancelled. In this regard it is important to note that the "cancellation of a class" is not equivalent to "dismissal for good cause." In September of 2003, during the first trimester of the 2003-04 school year (2003-1), the attendance reports for Petitioner's assigned classes indicated that his SAVES classes had 2 to 3 students attending each class. After 4 consecutive absences a student is officially withdrawn from a class. Accordingly, student M.G. was withdrawn from the courses with reference numbers OJL4 and OJL5, leaving only 1 student (student T.C.) in those courses. Courses with references numbers OJL8 and OJL9 had the same 3 students in both courses (students M.J., C.B., and F.N.). Enrollment in the Petitioner's classes was below the minimum number required to keep the classes open. Therefore, the Petitioner's classes were cancelled during September of 2003. The Petitioner's classes were not the only classes cancelled during the first term of school year 2003-04. Part- time Hispanic instructor Carmen Roman also had her ESOL-PRE class cancelled. Ms. Roman's ESOL-PRE class, like Petitioner's, had an initial enrollment of 5 students. In the third term of school year 2002-03 (2002-3), Fabian Mayta's ESOL-PRE class was cancelled. Mr. Mayta's class had an initial enrollment of 7 students. During that same term, Tomasita Neal's ESOL-PRE class was cancelled. Ms. Neal's class had an initial enrollment of 6 students. During the second term of school year 2002-03 (2002-2), the ESOL-PRE class assigned to Fabian Mayta was cancelled. The student enrollment was 5. Part-time teachers Mayta, Neal, and Roman are not Black; they are all Hispanic. Fabian Mayta taught two classes of ESOL-PRE during the first trimester of 2002-03 (term 2002-2). During the second and third trimesters of 2002-03 (terms 2002-2 and 2002-3), Mr. Mayta had an ESOL-PRE class closed each semester. During the first trimester of 2003-04 (term 2003-1), Mr. Mayta taught no ESOL-PRE classes at all. However, Mr. Mayta returned in the second semester of 2003-04 (term 2003-2) to teach ESOL-PRE. Mr. Mayta was also assigned to teach ESOL-1 during that same period of time, and he was assigned to teach ESOL-2 in the first trimester of 2003-04 (term 2003-1). However, this last-mentioned class was cancelled due to low enrollmant. Ms. Claudia Hutchins expected the Petitioner would return to teach the following semester. These expectations were evidenced in part by the fact that the computer print-out for the Master Schedule of classes dated November 7, 2003 (which was two months after the closure of Petitioner's classes), shows the Petitioner listed as an instructor of the Adult Center. The Petitioner made no attempt to contact the Adult Center after his classes were cancelled in the first trimester of the 2003-04 school year. The Petitioner did not indicate any interest in teaching at the Adult Center after the cancellation of his classes. The course assignments of part-time teachers may vary from term to term. The Petitioner was not the only part-time teacher whose class assignments changed from term-to-term. The Petitioner was expressly notified by the language of the standard employment contract and by the guidelines described above that low enrollment could cause classes to be closed. The cancellation of classes due to insufficient student enrollment is a separate and distinct event from the termination of employment or dismissal of an employee for "good cause." The Petitioner's classes were cancelled, but no employment dismissal proceedings were taken against him by the School Board. A memorandum summarizing the terms and conditions of employment is issued to part-time teachers at the Adult Center at the beginning of each term. The memorandum includes the following statement: "There is no seniority with regard to part-time employment." The Petitioner compares himself to teacher Raymond Rivera. In this regard the Petitioner alleges that he was replaced in his assignment to teach ESOL-4 during the second semester of the 2002-03 school year (term 2002-2) by teacher Raymond Rivera, who was a Hispanic full-time teacher. Mr. Rivera is certified by the State of Florida Department of Education to teach English and to teach ESOL. Unlike Mr. Rivera, the Petitioner has a Miami-Dade County Public Schools Educator's Certificate for Physical Education and a Professional Educator's Certificate for Guidance and Counseling (Pre-Kindergarten to Grade 12). The subject assignment of Mr. Rivera was determined by his full-time status, his professional educator's certificate in ESOL (including all levels K through 12), and his area of expertise (English: Grades 6-12). In addition, full-time teachers have priority over part-time teachers. Further, teachers are assigned to meet the needs of the students, the community, and the program. Ms. Santalla had no discriminatory intent when she assigned Mr. Rivera to teach ESOL Level 4. The Petitioner has presented no evidence that Ms. Santalla's decision to assign Mr. Rivera to ESOL Level 4 was made with any intent to discriminate against the Petitioner on the basis of his race. Based on his professional certifications in English and in ESOL, Mr. Rivera was better qualified to teach ESOL Level 4 than was the Petitioner. The Petitioner also compares himself to Tomasita Neal, who is a Hispanic part-time teacher. Ms. Neal's ESOL-PRE classes had an enrollment of 78 and 69 students during the first trimester of the 2003-04 school year (term 2003-1). The Petitioner asserts that Ms. Neal was less qualified to teach ESOL than he was because Ms. Neal did not have a bachelor's degree. Notwithstanding her lack of a bachelor's degree, Ms. Neal was well qualified to teach ESOL by reason of her many years of teaching ESOL and her completion of the School Board's certification process, both of which made her eligible to be "grandfathered" as an ESOL teacher when the eligibility requirements were changed. Race was not a factor in closing the Petitioner's classes. The determinative factor in closing those classes was the low student enrollment in the classes. The Adult Center offered the position of substitute teacher to the part-time teachers whose classes were cancelled during the term. Ms. Santalla offered the Petitioner a substitute teaching position after his classes were cancelled. The Petitioner declined the opportunity to work as a substitute teacher at the Adult Center. The Petitioner made no attempt to contact the Adult Center after his classes were cancelled. The Petitioner did not demonstrate any interest in continuing to teach at the Adult Center. At the Adult Center the ESOL class enrollment fluctuates due to the transient and seasonal nature of the ESOL student population. Therefore, when classes are cancelled, the teachers in the cancelled classes are encouraged to continue to teach in subsequent terms. Ms. Hutchins was expecting and hoping that the Petitioner would return to the Adult Center to teach during the second semester of the 2003-04 school year (term 2003-2). The Petitioner's name remained as a part-time teacher on the roster of the Adult Center's second trimester of school year 2003-04 (term 2003-2), which was the term following the trimester in which the Petitioner's classes were cancelled. Teacher Fabian Mayta's ESOL-PRE class was cancelled twice; first in the second trimester of the 2002-03 school year, and again in the third trimester of the 2002-03 school year. Mr. Mayta returned to teach in the first trimester of school year 2003-04, which class was also cancelled, but he again returned to teach in the second trimester of school year 2003- 04. Before the Petitioner's classes were cancelled, the Petitioner was enrolled in teacher training to develop effective strategies in language arts ("CRISS" training). After his classes were cancelled, the Petitioner requested permission to complete the CRISS training, and he was allowed to do so.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the FCHR issue a final order in this case finding that the School Board of Miami-Dade County is not guilty of any of the "unlawful employment practices" alleged by the Petitioner and dismissing the Petition for Relief in its entirety. DONE AND ENTERED this 20th day of February, 2006, in Tallahassee, Leon County, Florida. S MICHAEL M. PARRISH 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 20th day of February, 2006.
The Issue Whether respondent's teaching certificate should be suspended or revoked on grounds that he violated Sections 231.09 and 231.28, Florida Statutes (1979), by knowingly obtaining and filing a fraudulent university transcript with the Florida Department of Education for the purpose of being certified in the additional field of elementary education.
Findings Of Fact I. The Respondent: Background l. Respondent, a 44-year-old school teacher, has taught at Dade County elementary schools since 1966. He obtained a bachelor of science degree at Southern University in 1962. Later, he completed several postgraduate elementary education courses at Miami-Dade Community College and the University of Miami; in 1977, he earned a master's degree from Nova University. In his postgraduate courses, he earned almost straight "A's," with an occasional "B." (Testimony of Parker; P-6.) From 1966-1977, Respondent held a rank III (graduate) teaching certificate issued by the Florida Department of Education. After obtaining his master's degree in 1977, he was issued a rank II (post graduate) teaching certificate; however, although qualified in other areas, he was not certified to teach in the field of elementary education. (Testimony of Parker; P-6.) From 1974-1979, Respondent taught at Biscayne Elementary School in Dade County; since he was not certified in elementary education, he taught "out of his field." Teachers, such as Respondent, who taught out of their certified fields were required to complete at least six credit hours per year toward obtaining certification in the field in which they were teaching. Between 1977 and 1979, the Dade County School Board ("School Board") reminded its teachers of this requirement, that if they did not take the necessary ongoing course work, they would be required to return to their certified field of instruction. (Testimony of Gray.) Earlier, Respondent had hoped that, by obtaining his master's degree, he would complete enough courses to qualify for certification in the field of elementary education. However, his 1977 postgraduate teaching certificate did not certify him in elementary education. Sometime in early 1978, he calculated that 18 additional postgraduate credit hours would entitle him to be certified in elementary education, the area in which he preferred to teach. (Testimony of Parker.) II. Sutton Helps Respondent Enroll and Take Courses at Florida A & M University At all times material to this case, Eugene Sutton was employed by Florida A & M University ("Florida A & M") in Tallahassee, Florida, as its supervisor of intern teachers. In this capacity, Sutton would travel around the State, visiting interns and talking to supervising teachers. If problems were encountered, he would offer assistance. (P-4.) Sutton had been introduced to Respondent by Rosalyn Bethel, another faculty member at Biscayne Elementary School. In early 1978, Sutton--who had visited the school numerous times--walked into Respondent's classroom and asked him where he had attended school. When the conversation turned to various universities, Sutton stated that Florida A & M offered courses that could be taken by working people; he volunteered to help Respondent take such courses: [H]e [Sutton] said that he was able to reg- ister me, give me my work, and take it back to the instructors or the University, and I would get credit. (Tr. 76.) (Testimony of Parker; P-3.) Respondent accepted Sutton's offer. Shortly thereafter, he gave Sutton the registration fees (required by the university catalog) for nine credit hours. As promised, Sutton registered Respondent for elementary education courses at Florida A & M for the Spring Quarter of 1978. Respondent received a receipt from the university indicating his enrollment. During the ensuing months, Sutton would frequently exchange course materials with Respondent: Sutton would give course assignments to Respondent; Respondent would give Sutton completed course work for delivery to the various university instructors. (Testimony of Parker.) Respondent reasonably believed that he was properly completing course work assigned by his university instructors. The course work bore course titles and names of various instructors. Sutton was a faculty member at the university, a person in authority with important responsibilities. Respondent had no reason to distrust him or suspect him of wrongdoing. (Testimony of Parker, Gaines.) After finishing the Spring Quarter, Respondent enrolled at Florida A & M again, (through Sutton) for nine more credit hours (three courses) in elementary education during the Summer Quarter of 1978. The procedure was the same: He paid Sutton the required registration fees and received a receipt from the university. Sutton then brought course assignments (with textbooks) to Respondent, who, after completing them, gave them to Sutton for delivery to the various university instructors. Respondent never attended the university's Tallahassee campus or spoke directly with his instructors. (Testimony of Parker.) The elementary education courses which Respondent took at Florida A & M during 1978 were not directed individual study courses--courses which can be completed without attendance at the university's campus. However, Respondent-- at the time he selected these courses--did not know that they required attendance at the university. Sutton helped him select the courses from the university's course catalog, and he relied on Sutton as a university faculty member. (Testimony of Parker.) Respondent was unable to produce tuition receipts or work assignments associated with his course work because his house had been vandalized (and his records damaged) when he was hospitalized in September, 1979. 3/ (Testimony of Parker.) III. Respondent Receives a University Transcript At the conclusion of the Spring and Summer Quarters of 1978, Respondent received a copy of a course transcript from Florida A & M. The transcript--the original of which is part of the official records of the university--indicated that Respondent took six courses (18 credit hours) during the two quarters but successfully completed only three of them; that he earned only nine credit hours because of two "I's" (incompletes) and one "F" (failure). His grade-point average for the two quarters was 2.25. (Testimony of Parker; P- 3, P-4, P-8.) Although the transcript appeared to be valid and authentic, Respondent was surprised at the two "I's" and the "F." He had completed all his course assignments and had given them to Sutton; he did not expect an "F" when he was accustomed to earning A's and B's in postgraduate courses. 4/ Respondent then confronted Sutton. (Testimony of Parker.) Sutton explained that he (Sutton) had been late in delivering Respondent's course work to the university, and that Respondent would receive the correct grades. Shortly thereafter, Respondent received a corrected transcript indicating that he successfully completed (with B's) the three courses which had earlier been "I's" and an "F." He believed the corrected transcript was valid and authentic; however, he did not understand how the "F" could be corrected to a "B" when Sutton's explanation attributed the incorrect grades to the late submittal of course work. 5/ (Testimony of Parker.) Shortly thereafter--on May 31, 1979--Respondent completed an application for extension of his teaching certificate (to extend his area of certification to include elementary education) and gave it to Sutton, with the $5 application fee, for delivery to the Florida Department of Education. Subsequently, the Department granted him the requested extension of his teaching certificate. (Testimony of Parker, Gray; P-6.) The corrected transcript was, in fact, false. Upon discovery of that fact, the School Board suspended Respondent from his employment and conducted an investigation. On November 19, 1980, the School Board reinstated Respondent to his position after learning that Respondent was not the subject of criminal prosecution. (Testimony of Gray.) IV. Findings of Fact Proposed by Parties The findings of fact proposed by the parties have been considered. Those proposed findings which are not incorporated above are rejected as irrelevant to the issue presented or unsupported by the preponderance of evidence.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the charges against Respondent be dismissed. DONE AND RECOMMENDED this 22nd day of October, 1981, in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 Telephone: (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 22nd day of October, 1981.
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 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 The Petitioner is a black female who has been continuously employed by the Respondent, at the Gretchen Everhart School since approximately February of 1975. Prior to that time she worked for approximately seven years as a licensed practical nurse. The Respondent is a public employer within the meaning of Section 760.02(6), Florida Statutes. The Petitioner initially interviewed for an employment position with the Respondent in February, 1975. She was hired as a "pupil personal services worker," a combination social worker and guidance counselor. She was paid out of the Respondent's "social worker budget" and was not hired specifically as a nurse. The Petitioner maintains that upon her hiring she requested that her beginning salary be adjusted to reflect her prior work experience as a licensed practical nurse and that request was denied. However, the record reflects that she did not make any formal request for prior work experience pay credit at that time. Her formal complaint was not actually filed with the Florida Commission on Human Relations until October 28, 1985, well in excess of the 180 day requirement for filing such an action imposed under Section 760.10(10), Florida Statutes. Thus, even if she had made a formal request for such pay credit in 1975, its denial then would not now be actionable. Moreover, the Petitioner did not establish that any salary schedule, implementing regulation or collective bargaining agreement existed which provided for a salary adjustment of this type in 1975. On October 9, 1984, the Petitioner filed a written supplemental salary request with Dr. Paul Onkle, then the director of employee relations for the Respondent. She requested that she be given experience pay credit for seven years of prior experience as a licensed practical nurse at Sunland Hospital in Tallahassee, Florida. That request was denied. There is no evidence which would establish the date on which an initial, collective bargaining agreement between the Respondent and the Leon Classroom Teachers Association (LCTA), was first ratified. The Petitioner has been employed in a position included in that bargaining unit represented by the LCTA ever since the date of the first collective bargaining agreement, however. Accordingly, the terms and conditions of Petitioner's employment have been fixed by the terms of the collective bargaining agreement, ever since ratification of the initial agreement. On April 8, 1985, the Petitioner again wrote to Dr. Paul Onkle requesting his review of certain experience pay credit granted to Carolyn Peterson and Joanne Cox Arnette, in conjunction with which she requested his reconsideration of her request for experience pay credit. Ms. Peterson and Ms. Arnette are white female employees of the Respondent. Dr. Onkle instructed her on the proper means of filing a grievance and thereafter she executed a "Level I grievance" document on April 23, 1985, and delivered it to her immediate supervisor, Mrs. Susan Raker, the principal of Gretchen Everhart School. On April 24, 1985, Mrs. Raker denied the Level I grievance request on the ground that the Petitioner's salary had been set in compliance with the terms of the collective bargaining agreement then in effect. Thereafter, pursuant to the terms of the collective bargaining agreement then in effect, the Petitioner filed a "Level II grievance" with Dr. Onkle, who was then the director of Employee Relations. Dr. Onkle denied that grievance on June 24, 1985. Under the terms of the collective bargaining agreement in effect at that time, the responsibility to pursue the grievance after this denial was upon the Petitioner and the LCTA. No further review of Petitioner's request was ever formally sought, however. Under the terms of the collective bargaining agreement in effect when the requests for salary credit were filed in 1984 and 1985, no prior work experience credit was permitted for any non-teaching position, except for military service and certain work experience for vocational certification. The position in which the Petitioner was employed at that time did not involve any verified work experience which was required for vocational certification and there were no other provisions in the collective bargaining agreement in effect at that time by which the Petitioner would be entitled to receive a salary increase based upon her prior, non-teaching, licensed practical nurse employment. The Petitioner has alleged that the Respondent discriminated against her on account of her race by refusing to compensate her for prior work experience, while allegedly compensating similarly situated white employees an additional amount based upon similar work experience, thus violating Section 760.10, Florida Statutes. In view of this allegation, the work experience credit granted to a number of white employees, and the circumstances under which it was granted, must be examined. Carolyn Peterson was a white employee who began working with the Respondent in 1974 and became a full-time Occupational Specialist in 1976. In 1979, she was granted a salary increase based upon her prior work experience as an area sales manager and assistant buyer for Maas Brothers Department Store. Her position with the Respondent that year required her to be vocationally certified by the Florida Department of Education, and she was so certified. The collective bargaining agreement in existence at the time she was granted the salary increase for prior work experience specifically allowed such credit for each year of verified work experience above that required for certification of vocational teachers. The Petitioner, on the other hand, has not, in her employment position with the Respondent, ever been required to be vocationally certified by the Florida Department of Education. Thus, the Petitioner and Ms. Peterson are not "similarly situated" nor or they comparable employees with respect to their entitlement to any salary adjustment for prior work experience. Joanne Cox Arnette is a white person employed by the Respondent who was initially employed as a teacher in 1977. On approximately April 21, 1977, she requested credit for certain prior work experience, including four years of teaching in a public school system in Florida, four years of employment with the Florida Department of Education, and one year of teaching experience at the Florida A & M University. Her position was among the positions included in the bargaining unit represented by the LCTA. The collective bargaining agreement in existence at the time Ms. Arnette requested that credit specifically included and allowed for such credit for prior employees of the Florida Department of Education, by virtue of Section 238.01, Florida Statutes (1977) having been incorporated by reference in the terms of that collective bargaining agreement. That particular provision providing salary adjustment for prior work experience as an employee of the Department of Education terminated with the collective bargaining agreement entered into between the Respondent and the LCTA in 1979. It has been the practice and policy of the Respondent, however, at least as early as 1977, to continue to maintain experience credit for prior employment to an individual employee who was initially qualified for such a salary increase based upon prior employment experience; even though subsequent collective bargaining agreements, entered into after that employee obtained that salary increase, no longer included provisions authorizing such increases. Further, it has been the policy and practice of the Respondent, at times pertinent hereto, to consider and determine any requests for salary increases, based upon prior work experience, in the context of the collective bargaining agreement or other appropriate provisions prevailing and applicable at the time the request is made. Thus, for the reasons stated above, the Petitioner and Ms. Arnette are also not "similarly situated" employees and their positions are not comparable, within the meaning of Section 760.10, Florida Statutes. Gary Coates is a white person who was employed by the Respondent in March of 1976. In 1982, he requested and was granted a salary increase based upon credit for certain prior work experience. He was employed at that time in a position which was included in the bargaining unit represented by the LCTA. He was granted a salary increase for three years of teaching experience in a public hospital. An examination of the collective bargaining agreement in effect at the time Mr. Coates requested the salary increase reflects that credit was allowed for prior teaching experience in a public hospital or public institution. Mr. Coates met those requirements and was granted work experience credit for those three years. He also requested a salary increase for other work experience, and that request was denied by reason of the Respondent's determination that the experience involved did not qualify him under the terms of the collective bargaining agreement. Therefore, the Petitioner and Mr. Coates are not "similarly situated" employees and their prior work experience was not comparable within the meaning of Section 760.10, Florida Statutes. Mr. Tom Heiman, a white person, was hired in September, 1985. He was hired as a social worker, which is a non-teaching position, also included within the bargaining unit represented by the LCTA. Social workers have been included within that unit since the unit was first certified by the Public Employees Relations Commission. In administering the collective bargaining agreement with respect to social workers, the Respondent has followed a policy and practice of interpreting that collective bargaining agreement to allow credit for prior social work experience as if such experience was in fact prior "teaching" experience. Mr. Heiman was granted work experience credit for six years of prior social work, although he was denied work experience credit for other prior work experience. Under the terms of the collective bargaining agreement in effect in 1985, he was entitled to be credited with each year of teaching or social work experience in a public hospital or a public institution which required teacher certification in an area "in field" with a corresponding teaching position assignment. He was properly certified in that field and was otherwise entitled to receive work experience credit for his six years prior social work experience. Thus, Mr. Heiman and the Petitioner are not "similarly situated" employees either, and their work experience is not comparable. Mr. Gerald Torano, a white person, was first hired in October, 1985, as a social worker. His position with the Respondent was also included within the LCTA bargaining unit. He was granted a salary increase in 1985 based upon five years experience as a social worker in a public institution, as well as with the Florida Department of Health and Rehabilitative Services. He was granted a salary increase pursuant to the same collective bargaining agreement by which Mr. Tom Heiman became eligible for such an increase. Just like Mr. Heiman, Mr. Torano requested additional work experience credit for other past experience which the Respondent denied, based upon the fact that such additional work experience did not qualify him for increased salary credit under the terms of the collective bargaining agreement prevailing at the time he made the request. Thus, the Petitioner and Mr. Torano are also not "similarly situated" employees, nor was their prior work experience comparable. Ms. Jean Schneggenberger is a white person first hired by the Respondent in February, 1985. She was a registered nurse and was hired in that capacity as a Registered School Nurse. Her position is not included within the bargaining unit represented by the LCTA, rather, she is known as a "classified employee," which is a term used by the Respondent to describe those employees whose positions are not included within any accepted bargaining unit, for which there is a collective bargaining agreement in force. Although the Petitioner never asserted in these proceedings that Ms. Schneggenberger was an example of another white employee who had been treated differently and more favorably then Petitioner, the Petitioner offered substantial testimony in an attempt to demonstrate that she had in fact engaged in comparable "nursing duties" or in "nursing related duties" while engaged as a counselor and social worker at the Gretchen Everhart School. Thus, an examination of the manner in which Ms. Schneggenberger's salary as a nurse was computed is relevant to this proceeding. The record establishes that for the year 1984-85, the Respondent adopted a separate salary schedule and implementing regulations related to all "classified" employees. Those implementing regulations applicable to Ms. Schneggenberger are found in the Respondent's Exhibit 4, beginning at paragraph 2A. Ms. Schneggenberger is the only person employed by the Respondent in the position of "Registered School Nurse." Accordingly, neither the Petitioner nor any other employee of the Respondent is "similarly situated" or comparable in his position to Ms. Schneggenberger and her position.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore RECOMMENDED that the Petition for Relief from an alleged unlawful employment practice filed by the Petitioner, Annie M. Francis, be dismissed in its entirety. DONE and ENTERED this 18th day of March, 1988, in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of March, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-3185 Petitioner's Proposed Findings of Fact: 1. Accepted. 2-3. Accepted generally, but subordinate to the Hearing Officer's findings on this subject matter. Rejected as subordinate to the Hearing Officer's findings. Accepted, but not for its material import. 6-7. Accepted generally, but subordinate to the Hearing Officer's findings on this subject matter. 8. Rejected, as contrary to the preponderant weight of the evidence. 9-13. Accepted generally, but subordinate to the Hearing Officer's findings on this subject matter. 14-16. Accepted. 17. Rejected as to its material import. 18-20. Rejected as subordinate to the Hearing Officer's findings. 21-22. Accepted. 23. Accepted, but subordinate to the Hearing Officer's findings on this subject matter. 24-25. Rejected as immaterial. 26-27. Rejected as subordinate to the Hearing Officer's findings. 28. Rejected as subordinate to the Hearing Officer's findings and as contrary to the preponderant weight of the evidence. 29-30. Rejected as subordinate to the Hearing Officer's findings. 31-33. Accepted, but subordinate to the Hearing Officer's findings on this subject matter. 34. Rejected, as contrary to the preponderant weight of the evidence. Respondent's Proposed Findings of Fact: 1-2. Accepted. 3. Rejected as subordinate to the Hearing Officer's findings on this subject matter. 4-8. Accepted. 9. Accepted, but subordinate to the Hearing Officer's findings on this subject matter. 10-17. Accepted. COPIES FURNISHED: Danni Vogt, Esquire 308 East Park Avenue, Room 209 Post Office Box 11301 Tallahassee, Florida 32302 C. Graham Carothers, Esquire Post Office Box 391 Tallahassee, Florida 32302 Margaret Agerton, Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925 Dana Baird General Counsel Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925 Charles Couch, Superintendent Leon County School Board 2727 West Pensacola Street Tallahassee, Florida 32301
Findings Of Fact Pursuant to the Order of the Second District Court of Appeal, Dr. Spiegel was reinstated as Chairman of the Orthopaedic Department at the University of South Florida (USF), retroactive to October 31, 1988. He was given a contract as Chairman to run until October 19, 1990. On February 2, 1990, USF commenced proceedings to remove Dr. Spiegel as Chairman of the Orthopaedic Department, and the matter was referred to the Division of Administrative Hearings for a formal 120.57(1), Florida Statutes, hearing. Prior to the commencement of the formal hearing, Dr. Spiegel's contract as Chairman of the Orthopaedic Department expired and was not renewed by the USF. On the expiration date of that contract, October 19, 1990, the USF proceedings to remove Dr. Spiegel as Chairman of the Orthopaedic Department became moot. Dr. Spiegel's appointment as Chairman of the Orthopaedic Department ended as provided in this contract, the contract was not renewed, and Dr. Spiegel was no longer chairman of the Orthopaedic Department. Dr. Spiegel timely filed a grievance to challenge the non-renewal of his contract as Chairman of the Orthopaedic Department. By stipulation of the parties, the issues raised in the grievance merged into the instant proceedings to remove Dr. Spiegel as Chairman of the Orthopaedic Department. Since that issue became moot with the expiration of Dr. Spiegel's contract on October 19, 1990, the only issue now remaining is whether the failure to renew Dr. Spiegel's contract was in violation of Dr. Spiegel's right to academic freedom or for the alleged impermissible violation of his First Amendment right to freedom of speech. In other words, the allegation is that Dr. Spiegel's contract was not renewed because he exercised the rights guaranteed to him under the First Amendment of the United States Constitution.
The Issue The issue for determination is whether Respondent should be demoted from his current position of Refrigeration Mechanic I to Trades Helper because of his failure to meet the requirements of his Training Agreement and Training Standards, in that he failed to obtain a valid refrigeration journeyperson's license (Certificate of Competency).
Findings Of Fact At all times material hereto, Kevin Jinks was employed by the Dade County School Board (School Board) as an Air Conditioning/Refrigeration (ACR) Mechanic I. Mr. Jinks is a member of the Dade County School Maintenance Employee Committee (Maintenance Employee Committee) collective bargaining unit, and the Maintenance Employee Committee's collective bargaining agreement is applicable to Mr. Jinks. The Trainee Career Development Plan (Career Plan) has been collectively bargained and is applicable to Mr. Jinks. The Career Plan is an orderly, well-defined career development plan for trainees in the construction and maintenance trades, and includes formal classroom training and related on- the-job training. The Career Plan provides trainees with periodic reviews and appropriate step (salary) increases as they advance through the Career Plan, preparing for increased responsibilities in their trade as they advance to a journeyperson's position. A journeyperson is a skilled worker who has completed a formal apprenticeship program and has obtained a certificate of competency, also referred to as a license,2 in the trade in which the journeyperson works, if the trade is licensed. A journeyperson works independently and is held responsible for the job being performed. Also, supervision of the trainees in their trade is the responsibility of the journeyperson. A trainee (apprentice) is an employee in the Career Plan, who is bound for a specified period of time by an agreement with the Trades Helper/Trainee Career Development Board (Trades Helper/Trainee Board). A trainee works under the supervision of a journeyperson to obtain on-the-job training in his trade skills and attends formal classroom instruction. Unlike the journeyperson, a trainee does not work independently and is not held responsible for the job. The Trades Helper/Trainee Board oversees the advancement of the trainees. It meets quarterly to assess the progress of the trainees participating in the Career Plan, to provide counseling, and to make recommendations regarding a trainee's continuation in the Career Plan. The Trades Helper/Trainee Board decides whether to advance a trainee to the next step. Trainees are required to complete the Career Plan within a specified time period. In Mr. Jinks' situation, a four-year training period is specified; however, trainees are provided five years in which to complete the four-year Career Plan. Trainees are placed on notice by the Career Plan that the goal of the Career Plan is to make certain that trainees are "fully trained and licensed" and that trainees must obtain a certificate of competency to advance to the fifth and final step in the Career Plan. The Career Plan advises trainees that they cannot remain trainees permanently. Further, the Career Plan advises trainees that, if they are not successful in the Career Plan, they are subject to administrative action, including reclassification to a trades helper position, i.e., a demotion. At the time of hearing, 206 School Board employees had participated in the Career Plan. Out of the 206, 161 have become journeypersons; 16 have obtained their licenses and are awaiting an in-house skills examination; 10 have been demoted to trades helpers at a reduced salary; and 19 have left the Career Plan for various reasons. The Career Plan is being phased out by the School Board. Trainee positions are no longer being staffed by the School Board; no new trainees are being added to the Career Plan by the School Board. A trades helper is a laborer who also assists the journeyperson. No employment positions exist between the trades helper position and the trainee position. Trades helpers are eligible for the Special Opportunities Program for Advancement through which a trades helper may become a journeyperson. Therefore, Mr. Jinks is not foreclosed from becoming a journeyperson for the School Board. The Maintenance Employee Committee contract provides, in pertinent part, at Article IX, entitled "Working Conditions," as follows: Section 12. Trainees Trainees shall work under the supervision of a journeyperson. . . . All trainees will be hired at Step 1. All trainees will be in the Trainee Career Development Plan. The Trainee Career Development Plan will be governed by the Trades Helper/Trainee Career Development Board. The advancement of trainees through the Trainee Center Development Plan will be governed by a Trades Helper/Trainee Career Development Board whose membership shall consist of four voting members. These voting members will be the Supervisor of Adult Trade and Industrial and Apprenticeship Training in the Office of Vocational, Adult, Career, and Community Education; the Executive Directors (2) of the Office of Facilities Operations; and, [sic] the Manager of the Office of Facilities Operations. Additionally, a DCSMEC [Maintenance Employee Committee] representative and a representative from the Office of Personnel Management and Services may attend Trades Helper/Trainee Career Development Board meetings as observers. The Trades Helper/Trainee Career Development Board shall meet four times a year for the purpose of reviewing trainee requests for advancement in the Trainee Career Development Plan. . . . The Trades Helper/Trainee Career Development Board . . . will use the approved Division of Facilities Operations Administrative Procedures for the operation of the Trainee Career Development Plan. . . . The Trades Helper/Trainee Career Development Board is responsible for: Monitoring, recommending, and approving training programs for each trainee. Determining the appropriate step placement of each trainee in the Trainee Career Development Plan. Advancement to the appropriate step in the Trainee Career Development Plan required by the approved Office of Facilities Operations Administrative Procedures. Requiring each trainee to complete the Trainee Career Development Plan within the timeframes [sic] specified in approved Office of Facilities Operations Administrative Procedures. Trainees who successfully complete the Trainee Career Development Plan and hold a valid Certificate of Competency from Dade, Monroe, Broward, Palm Beach, or Collier County . . . are eligible for consideration for priority advancement to an open journeyperson position in their respective trade upon the recommendation of the Trades Helper/Trainee Career Development Board. . . Any trainee who fails to complete the Trainee Career Development Plan within the allotted timeframe [sic] will be subject to administrative action, including reclassification to trades helper position upon the recommendation of the Trades Helper/Trainee Career Development Board. Current employees who have exceeded the timeframes [sic] in their job position will meet with the Trades Helper/Trainee Career Development Board to be evaluated and to determine the appropriate training requirements and the timeframe [sic] that will be permitted to complete the Trainee Career Development Plan. Current employees who cannot or will not complete the Trainee Career Development Plan will be subject to administrative action. The Maintenance Employees Contract provides further, in pertinent part, at Article XI, entitled "Disciplinary Action," as follows: Section 1. Notification Whenever an employee violates any rule, regulation, or policy, that employee shall be notified by his/her supervisor, as soon as possible, with the employee being informed of the rule, regulation, or policy violated. Every effort shall be made to have an informal discussion with the employee, prior to the issuance of any disciplinary action. Any employee summoned for a Conference- for-the-Record (CFR) shall be given no less than two working days' notice, except in cases deemed to be an emergency. The notification shall contain a statement of the reason(s) for the CFR. An employee notified of a CFR which may lead to disciplinary action shall have the right to request Union representation and shall be so informed of this right. . . . * * * Section 2. Dismissals, Suspensions, Reductions-in-Grade Employees dismissed, suspended, or reduced in grade shall be entitled to appeal such action to an impartial Hearing Officer who shall set the date and place mutually agreeable to the employee and the Board for the hearing of the appeal. . . . On June 25, 1985, Mr. Jinks began his employment with the School Board. On February 19, 1986, he entered Step 1 of the Career Plan. Mr. Jinks was advanced as he completed schooling and on-the-job training. On November 28, 1986, he reached Step 2. Mr. Jinks skipped Step 3 and advanced to Step 4 on November 27, 1987. At Step 4, he began receiving 75 percent of a journeyperson's salary. To reach Step 5, the only requirement for Mr. Jinks to satisfy was to pass the licensing examination, which could be taken in several counties, namely, Broward, Collier, Dade, Monroe, or Palm Beach. The School Board has no control over the licensing examinations or process. The examinations are given frequently enough that Mr. Jinks could have taken at least one examination per month. No limitation is placed on the number of times an examination may be taken. Mr. Jinks began his four-year Career Plan on September 1, 1988, when he signed his formal Training Agreement and Training Standards, in which he acknowledged that a failure to complete the Career Plan would result in his becoming a trades helper. Mr. Jinks four-year Career Plan expired on September 1, 1992, and his automatic fifth year expired one year later, September 1, 1993. As of November 27, 1987, Mr. Jinks was eligible to take the licensing examination. However, he did not begin taking the examination until 1995, well after his fifth and final year. Mr. Jinks submitted documentation of having taken the examination only once, which was in 1995 and which he failed. Trainee reviews were held with Mr. Jinks on several occasions, including December 15, 1993, June 29, 1994, September 30, 1994, March 1995, and June 1995. At each review meeting, Mr. Jinks was given extensions. At each review meeting, the requirement to pass the licensing examination was stressed, and Mr. Jinks was put on notice that, if he did not pass the licensing examination and obtain a certificate of competency, he would be subject to demotion to a trades helper and that, as a consequence, his salary would be reduced. Furthermore, written notice was provided to Mr. Jinks on August 3, 1994, November 7, 1994, and November 7, 1996. On November 7, 1996, in accordance with Article IX, Section 12.E.5, of the Maintenance Employee Committee contract and with Mr. Jinks' Training Agreement, the Trades Helper/Trainee Board recommended that Mr. Jinks be demoted to trades helper for his failure to comply with his Training Agreement and Training Standards. As of November 7, 1996, Mr. Jinks had had approximately nine years to pass the licensing examination and reach Step 5 of the Career Plan. On December 5, 1996, a Conference-for-the Record was held with Mr. Jinks at which he failed to produce proof of licensure. As a result, the recommendation for demotion continued to be processed. Furthermore, Mr. Jinks was notified that, if he could produce official documentation of passing the licensing examination prior to the School Board taking action, the recommendation would be rescinded. Demotion is the established practice under the Maintenance Employee Committee contract for similarly situated employees. On February 5, 1997, the School Board voted to demote Mr. Jinks to the position of trades helper. Mr. Jinks challenged the School Board's action and requested a formal hearing. After the School Board's action and prior to hearing, Mr. Jinks again took the licensing examination. At the time of hearing, he was awaiting the results.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Dade County School Board enter a final order demoting Kevin Jinks to the position of Trades Helper. DONE AND ENTERED this 5th day of December, 1997, in Tallahassee, Leon County, Florida. ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 5th day of December, 1997.
