The Issue The issue is whether Respondent properly decided to deny Petitioner tenure and promotion.
Findings Of Fact On or about August 8, 1997, Petitioner began working for Respondent as an Assistant Professor in a tenure-earning position in the COE, Department of Health, Physical Education, and Recreation (DHPER). Because Petitioner was serving in a tenure-earning position, Respondent had to award her tenure by the end of six years of continuous full-time service or give her notice that Respondent would not offer her further employment beyond the end of the seventh year of employment. Petitioner received a copy of the applicable tenure criteria soon after she began her employment. The tenure criteria for scholarly publications required the following: (a) publish or show acceptance of at least three publications, including books, monographs, and articles in local, state, regional and national journals, which meet the peer-review process, not including abstracts/proceedings; (b) achieve additional publication credit, which may include individual citations in a text's quotes or credits for scholarly endeavors; and (c) present at least two papers at state, regional or national professional meetings. Petitioner also received a copy of Respondent's criteria for promotion from Assistant Professor to Associate Professor. The criteria state as follows in relevant part: The minimum number of publications will be three (3), which must be in indexed refereed professional journals, of which at least two (2) must list the candidate as the primary author. This includes, not in addition to, chapters in books, monographs for national use, and books. Chapters will treated as journal publications. The number of publications will be cumulative. Respondent is required to provide its faculty members with an annual faculty evaluation. For faculty members in tenure-earning positions, Respondent also is required to provide an annual tenure appraisal. On April 24, 1998, Petitioner received her 1997-1998 faculty evaluation. The evaluation reflected Petitioner's poor rating for evidence of papers or articles published in professional journals and/or of books published. There is no evidence that Respondent provided Petitioner with an annual tenure appraisal for the 1997-1998 academic year. Each academic term, Respondent and each of its faculty members, in tenured and non-tenured positions, sign an Assignment of Responsibility Form. The form lists the credit and non-credit generating activities and assigns a percentage of the employee's designated effort for each activity. The total percentage of designated effort for each academic term should equal 100 percent for one full-time-equivalent (FTE) faculty. The credit generating activities are specific student classes/courses. An assignment to teach courses with more than cumulative credit hours in the same semester is considered an overload. Faculty members on a nine-month pay plan are never required to accept an overload assignment. Assuming responsibility for designated effort in excess of 100 percent is strictly voluntary. Instructors receive additional pay beyond their base salary when they accept an overload assignment. Respondent always gives its nine-month faculty the opportunity to teach extra classes as an overload before hiring additional staff. The same is true for teaching summer school. Respondent's nine-month faculty has first choice to earn additional pay by teaching classes in summer school before Respondent hires adjunct professors. The nine-month faculty is not required to teach summer school. The non-credit activities include the following: supervision of cooperative education; (b) clinical instruction; (c) other instructional efforts (non-credit); (d) research; (e) public service; (f) academic advisement; (g) academic administration; (h) university governance; (i) leave of absence with pay; and (j) collective bargaining release time. There is no set percentage of designated effort for any particular non-credit activity. Respondent's faculty can always request that some percentage of their designated effort be attributable to one of the non-credit activities, such as research. In such a case, Respondent would assign the faculty member less designated effort to other non-credit activities such as academic advisement. In every case, tenure-earning faculty members know or should know that Respondent expects them to begin working on research projects when they are hired in order to meet the tenure criteria for scholarly publications within the required time frame. This is true regardless of whether they elect to teach overloads or summer school and regardless of whether they request and receive a specific amount of designated effort for research each academic term. Other than as set forth below, there is no evidence that Petitioner ever requested Respondent to assign her a greater percentage of designated effort to research. On April 28, 1998, Petitioner signed the Assignment of Responsibility Form for the 1998 Spring semester. The form indicates that 86 percent of Petitioner's designated effort was spent teaching five classes for a total of 13 credit hours. Her only other assignment was academic advisement, which represented 14 percent of her designated effort. Petitioner agreed to teach during the 1998 Summer B semester. She taught two classes for a total of 3 credit hours, representing 64 percent of her designated effort. She had no other assignments that summer. For the 1998 Fall semester, Petitioner accepted a teaching overload. She taught six classes for a total of 15 credit hours, representing 99 percent of her designated effort. She also performed academic advisement for 21 percent of her designated effort. In the Spring semester of 1999, Petitioner taught five classes for a total of 13 credit hours, representing 86 percent of her designated effort. She was assigned to perform academic advisement for the balance of her time, equal to 14 percent of her designated effort. On April 28, 1999, Petitioner received her 1998-1999 faculty evaluation form. The form again reflected her poor rating for evidence of papers or articles published in professional journals and/or books published. On June 1, 1999, Petitioner received a tenure appraisal for the 1998-1999 academic year. The appraisal informed Petitioner that she needed to improve in the research category. Specifically, she needed to publish and present at least three to four research articles within a five-year period before applying for tenure. For the Summer B semester of 1999, Petitioner taught two classes for a total of four credit hours, representing 84 percent of her designated effort. She had no other assignments that summer. In the Fall semester of 1999, Petitioner taught seven classes for a total of 16 credit hours, representing 106 percent of her designated effort. She also performed academic advisement for an additional 20 percent of designated effort. For the Spring Semester 2000, Petitioner taught six classes for a total of 14 credit hours, representing 93 percent of her designated effort. She served as an academic advisor for an additional 20 percent of her designated effort. On April 26, 2000, Petitioner received her 1999-2000 faculty evaluation form. The form indicates that Petitioner's research and creative ability were not applicable. The record does not show that Petitioner engaged in any scholarly presentations or research and writing projects during the 1999- 2000 academic year. In the Summer B term of 2000, Petitioner taught one class for a total of one credit hour, representing four percent of her designated effort. She did not have any other assigned duties that summer. For the Fall semester 2000, Petitioner taught seven courses for a total of 14.5 credit hours, representing 91 percent of her designated effort. She also agreed to devote three percent of her designated effort in each of the following areas: (a) research; (b) public service; and (c) academic advisement. In the Spring semester of 2001, Petitioner taught six classes for a total of 14 hours, representing 93 percent of her designated effort. She also was assigned the following responsibilities: (a) five percent of her time in research; (b) five percent of her time in public service; and (c) 10 percent of her time in academic advisement. For the Summer A term of 2001, Petitioner taught two classes for a total of three credit hours, representing 62 percent of her designated effort. In Summer B term of 2001, Petitioner taught two classes for a total of three credit hours, representing 65 percent of her designated effort. She had no other assignments that summer. On July 5, 2001, Petitioner received her annual faculty evaluation for the 2000-2001 academic term. Petitioner received a fair rating regarding evidence of papers or articles published in professional journals and/or of books published. On August 27, 2001, Petitioner received her annual tenure appraisal for the 2000-2001 academic term. The appraisal acknowledges that Petitioner had improved significantly in the areas of research and scholarly activities. According to the appraisal, Petitioner had made several research presentations, submitted articles for publication, and choreographed several dance pieces for the Orchesis Dance Concert and public school activity programs. The appraisal stated that after a few of Petitioner's research articles were published, she would be on par for complete satisfaction of the scholarly publications requirements. The August 27, 2001, tenure appraisal also commended Petitioner for her public service work. At the same time, the appraisal warned Petitioner not to commit too much of her time to public service because she might neglect other tenure criteria areas. The appraisal advised Petitioner that it was extremely important to balance her time between teaching, research, and service. In the Fall semester of 2001, Petitioner taught five classes, for a total of 16 credit hours, representing 96 percent of her designated effort. She spent 20 percent of her designated effort working as an academic advisor. For the Spring semester of 2002, Petitioner taught six classes for a total of 14 credit hours, representing 93 percent of her designated effort. She divided the balance of her designated effort as follows: (a) five percent to research; five percent to public service; and (c) 10 percent to academic advisement. In the Summer A term of 2002, Petitioner taught two classes for a total of three credit hours, representing 65 percent of her designated effort. She had no other assignments that summer. For the 2001-2002 academic term, Respondent did not perform a faculty evaluation or tenure appraisal of Petitioner. Dr. Virden Evans, Chairman of DHPER, gave Petitioner copies of the evaluation forms and requested that she perform a self- evaluation before meeting with him to discuss her performance. Petitioner never returned the evaluation forms to Dr. Evans. On September 9, 2002, Petitioner submitted her applications for tenure and promotion, together with a portfolio to document her qualifications. The tenure application listed the following two research projects as in progress: (a) a 2001 project titled "Exercise Adherence Among African-American Females"; and (b) a 2002 project titled "Perceived Stress and Burnout of MEAC Track and Field Athletes." There is no evidence that Petitioner completed, or submitted for publication, a paper or article based on either of these research projects. The tenure application also listed a 2002 research project titled "An Assessment of NCAA D-1A Academic Advisors Salaries", naming Petitioner as a contributing, but not leading participant. The application indicated that the participants in the study submitted the research project for acceptance at the 2003 American Alliance of Health, Physical Education, Recreation, and Dance (AAHPERD) 118th National Convention as part of its program and proceedings during a research consortium poster session. There is no persuasive evidence that the research project was accepted at the national convention in Baltimore, Maryland, as submitted. During the hearing, Petitioner presented evidence that the research project involving academic advisors salaries was submitted as a one-page abstract in May or June of 2002, and accepted in November or December 2002, for poster presentation at the February 2003 Southern District AAHPERD Convention, in Savannah, Georgia. There is no persuasive evidence that Petitioner timely provided Respondent with documentation of the abstract's acceptance as a poster presentation during a convention proceeding or that the research project resulted in a peer-reviewed written paper that was ever published other than as an abstract in the convention program. The tenure criteria at issue here specifically exclude abstracts/proceedings. Petitioner's tenure application listed several dance productions, naming her as the director and choreographer. It is apparent that Petitioner spent valuable time creating the dances, writing scripts for skits, designing costumes, etc. However, the greater weight of the evidence indicates that these creative activities are not scholarly publications in journals that meet the peer-review process. During the hearing, Petitioner presented evidence that she included a reference to her doctoral dissertation in her portfolio. The dissertation, entitled "A Comparison of Perceived Stress Levels of College Freshman Athletes and Non- Athletes" was published in 1987 by the Florida State University, College of Education, Department of Movement Science and Physical Education, in partial fulfillment of the requirement for Petitioner's degree of Doctor of Philosophy. The most persuasive evidence indicates that the dissertation is not a peer-reviewed scholarly publication in a journal or a book, completed by Petitioner within her tenure-earning time frame. Petitioner is credited as the author of one scholarly publication that meets the requirements of the applicable tenure and promotion criteria. In August 2002, Petitioner's article entitled "Introductory Activities in Elementary Physical Education Classes" was accepted for publication in the Winter 2003 Journal of the Florida Alliance for Health, Physical Education, Recreation and Dance. In September 2002, Dr. Evans continued to serve as Chairman of DHPER. As a tenured professor, Dr. Evans attended some of DHPER's Tenure and Promotion Committee meetings but did not vote on Petitioner's applications for two reasons. First, he abstained because, as Chairman of DHPER, he would have to make a recommendation on the applications to the COE Tenure and Promotion Committee. Second, Dr. Evans had a close professional relationship with Petitioner and reserved his input on her applications, hoping that she would meet the publication requirements before he had to take a position. Dr. Janet Sermon, COE's Assistant Dean for Academic Affairs, was one of DHPER's tenured faculty members. In the fall of 2002, Dr. Sermon often was required to act on behalf of the COE's Dean or, occasionally, in the capacity of COE's Acting Dean in recommending approval or disapproval of tenure and promotion applications to the University Tenure and Promotion Committee. Therefore, she did not participate in DHPER's Tenure and Promotion Committee meetings. She did not vote on Petitioner's applications due to this potential conflict of interest. Coach Bobby Lang was one of DHPER's tenured faculty members. He was on medical leave during the fall of September 2002. The most credible evidence indicates that Coach Lang had notice of Petitioner's pending applications but chose not to participate in DHPER's Tenure and Promotion Committee meetings while on medical leave. Coach Samuel Bogan was one of DHPER's tenured faculty. His coaching schedule made it difficult for him to participate in DHPER Tenure and Promotion Committee meetings. Coach Bogan had notice about Petitioner's pending applications but was absent when the DHPER Tenure and Promotion Committee voted on her applications. DHPER had four other tenured faculty members: (a) Dr. Steve Chandler; (b) Dr. Maria Okeke; (c) Dr. Barbara Thompson, Chairperson of DHPER's Tenure and Promotion Committee; and (d) Dr. Joseph Ramsey. DHPER's Tenure and Promotion Committee met for the first time on September 16, 2002. The committee did not consider Petitioner's application at that meeting. The DHPER Tenure and Promotion Committee met again on October 2, 2002, to vote on Petitioner's tenure and promotion applications. Coach Bogan, Dr. Evans, Dr. Sermon, and Coach Lang were not present for reasons stated above. A secret ballot on Petitioner's tenure application resulted in two (2) votes to deny and two (2) abstentions. A secret ballot on Petitioner's promotion application resulted in three (3) votes to deny and one (1) abstention. In a memorandum dated October 3, 2002, Dr. Thompson advised Dr. Evans of the committee's decision to recommend denial of Petitioner's request for tenure and promotion. In a letter dated October 4, 2002, Dr. Evans advised Petitioner of the committee's vote to recommend denial of her applications. In a letter dated October 8, 2002, Dr. Evans explained to Petitioner that the committee based its recommendation on the apparent lack of a sufficient number of publications. Subsequently, Dr. Evans recommended approval of Petitioner's applications to the COE Tenure and Promotion Committee. Thereafter, the COE committee voted to recommend denial of both applications. Subsequently, COE's Dean recommended denial of Petitioner's applications to the University Tenure and Promotion Committee. The University committee voted to recommend approval of Petitioner's promotion application and denial of her tenure application. Dr. Fred Gainous was Respondent's President during the time that Petitioner's applications were pending. Dr. Gainous had the responsibility to nominate candidates for tenure to Respondent's Board of Trustees, the entity with the authority to make final decisions granting tenure. The Board did not consider applications for tenure without such a nomination. Dr. Gainous did not nominate Petitioner for tenure before Respondent's Board of Trustees. President Gainous had authority to make the final decision regarding Petitioner's application for promotion. Dr. Gainous took no action in this regard because Petitioner's promotion was a moot question in light of the denial of her application for tenure and the issuance of a terminal contract for the 2003-2004 academic term. In a letter dated March 31, 2003, President Gainous advised Petitioner that her application for tenure was denied and that she would not be offered further employment beyond the end of her seventh year of employment. The letter states that the action was based on Petitioner's failure to meet the publication requirements of the COE. Dr. Gainous sent Petitioner a letter dated June 3, 2003. The letter advised Petitioner that her application for promotion was denied.
Recommendation Based upon the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered denying Petitioner tenure and promotion and terminating her employment. DONE AND ENTERED this 5th day of October, 2004, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of October, 2004. COPIES FURNISHED: Avery D. McKnight, Esquire Ruth Nicole, Esquire Florida A & M University 300 Lee Hall Tallahassee, Florida 32307-3100 Patricia A. Tucker 2802 Primrose Lane Tallahassee, Florida 32301 Elizabeth McBride, General Counsel Florida A & M University 300 Lee Hall Tallahassee, Florida 32307-3100 Dr. Fred Gainous, President Florida A & M University 400 Lee Hall Tallahassee, Florid 32307-3100
The Issue Whether Olin Scott Stoutamire is required to repay monies paid to Olin Scott Stoutamire as salary, which is alleged by the Department of Transportation (DOT) to be excess salary.
Findings Of Fact Petitioner is an agency of state government. The Respondent is a career service employee of the Petitioner, and is employed at a site located away from the Petitioner's District Office in Chipley, Florida. The Respondent is the Project Manager of the Petitioner's Thomasville Road and Interstate 10 Intersection Improvement Project in Tallahassee, Florida. The Respondent is paid less than other Petitioner's Construction Project Managers because the Respondent has less tenure. The Respondent's supervisor told Respondent that he would try to correct what appeared to be a salary inequity. The Petitioner initiated a raise for Respondent equal to 5 percent of the Respondent's base rate of pay. The proposed 5 percent salary increase was initiated by his supervisor completing and submitting an "Employee Action" form. The form provides the employee's identification, position, and includes the employee's current base pay rate and the calculated pay rate after the proposed increase becomes effective. The Respondent's base rate of pay and the resulting calculations as to the proposed resulting pay increase were incorrect on the Employee Action form submitted to the Petitioner's Personnel Office (Personnel) in Chipley, Florida. Personnel detected the supervisor's error, but then committed its own error, resulting in an $80 bi-weekly overpayment. The Respondent noticed the apparent overpayment and inquired of his supervisor if there had been a mistake. Respondent told his supervisor that he did not want the State to seek reimbursement for a large amount at a later date. The Respondent's supervisor told Respondent that the payment was correct and to accept it. The Respondent asked him to check and be certain because he did not want to have to repay the money. A short time later, the Respondent's supervisor told Respondent to accept the total amount of the warrant as being correct. His supervisor mentioned other pay increases for which the Respondent was being considered during the same time that the 5 percent pay increase was being processed. The Respondent thought that his supervisor had checked with personnel, and that his pay was correct. The Petitioner did not become aware of the error until an overpayment of $1,200 had accumulated. The Petitioner's Office of Financial Services requested reimbursement in the amount of $771.15 as payment in full within ten days or a payment of $117.00 biweekly pursuant to Sections 110.205(2) and 216.251, Florida Statutes and Chapter 60L-8, Florida Administrative Code. The Respondent's salary was immediately adjusted to show the correct amount. The Respondent contends he did his best to determine if he was being overpaid and was assured the payment was correct. The Respondent changed his budget and spent the money in reliance upon the assurance that the payment to him was correct. The Respondent concedes that Petitioner's records reflect an error and an overpayment. However, the Respondent does not believe he should have to repay the money immediately or in amounts greater than he received the overpayment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: Respondent repay $40 per pay period to the Department beginning on the effective date of the next annual pay raise and continuing each month thereafter until the overpayment is repaid. The Department refer the case to the Department of Banking and Finance if an agreement cannot be reached. DONE AND ENTERED this 9th day of July, 1997, in Tallahassee, Leon County, Florida. COPIES FURNISHED: Ben G. Watts, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street STEPHEN F. DEAN 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 9th day of July, 1997. Tallahassee, Florida 32399-0450 Pamela Leslie, General Counsel Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450 Charles G. Gardner, Esquire Department of Transportation Haydon Burns Building 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 34399-0458 Olin Scott Stoutamire 63 Graham Trail Crawfordville, Florida 32327
The Issue The issues presented for determination in this matter are as follows: Can the status of tenure be denied, as opposed to being granted or postponed, during the fifth year of employment? Was the tenure decision in this case based upon constitutionally impermissible reasons or a result of noncompliance with written standards, criteria or procedures prescribed by the Board of Regents or university regulations? Did respondent wrongfully determine that petitioner's employment contract would not be renewed beyond June of 1975? Was petitioner wrongfully terminated before he received a due process hearing?
Findings Of Fact Based upon the admissible oral and documentary evidence adduced in this cause, the following pertinent facts are found: Prior to coming to the University of South Florida in 1969, petitioner's educational and employment background was as follows. In 1951, petitioner received his high school diploma from a night school in Cincinnati, Ohio. After he was discharged from the United States Air Force in 1957, he worked as a commercial pilot, a Kentucky State Trooper, a sales executive, independent consultant and instructor for several private industries, and was active in the Civil Air Patrol. Petitioner completed his Bachelor of Science degree in Commerce in 1966 and his Master of Arts degree in Economics in 1967 at the University of Kentucky. During his masters program, he was awarded a nonteaching graduate fellowship and was admitted to Omicron Delta Epsilon, an economics honorary fraternity. In 1967, petitioner entered the Ph.D. program in marketing, minoring in finance, at the University of Iowa in the College of Business Administration. While attending school between 1967 and 1969, petitioner had an academic fellowship and taught an introductory course in marketing at the University of Iowa. He was enrolled in this program when he applied for a teaching position in marketing with respondent in March of 1969. In response to his application for a teaching position at the University of South Florida, petitioner received a letter from the Chairman of the Marketing Department stating in part, "This assistant professorship opening calls for a person holding the Ph.D. or D.B.A. degree, or expecting completion of the degree in 1969 or early 1970." On the Personnel Data Form required to be completed by respondent, petitioner stated that he would be available in September of 1969, preferred a full-time teaching and research position as assistant professor of marketing and expected to receive his Ph.D. from the University of Iowa in February or June of 1970. Petitioner's appointment as Assistant Professor of Marketing in the College of Business Administration was confirmed by President John S. Allen in April of 1969, and he continued in that position until June of 1975 under six annual contracts. At the time of his appointment to USF in 1969, petitioner had completed the course work for his Ph.D. in the College of Business Administration at the University of Iowa, but had not yet completed all, of his comprehensive examinations. In 1970, petitioner was unsuccessful in two attempts to pass the economic theory comprehensive written examination. Because of this and his low grades, he was terminated from the Ph.D. program in the College of Business Administration. In June of 1970, petitioner enrolled in the University of Iowa College of Education doctoral program majoring in business education. He first failed the marketing examination in the College of Education, but later passed it with reservations. Having completed his comprehensive examinations in that program, petitioner returned to USF to teach. The testimony and evidence is conflicting as to whether petitioner's colleagues and department chairman had knowledge that petitioner was no longer pursuing his Ph.D. degree in business administration. Many of petitioner's colleagues testified that they had no such knowledge. While his chairman stated that he knew of petitioner's educational status, he advised the USF Vice- President for Academic Affairs in March of 1974 that petitioner was pursuing his degree from the College of Business at the University of Iowa and that he was "not pursuing a degree in Distributive Education as was alleged." Petitioner's progress on his doctoral dissertation is somewhat in dispute. Apparently, in July of 1971, he submitted a research proposal entitled "Sales Training and Placement of the Disadvantaged," and an informal doctoral student seminar was held on July 28, 1971 to critique the proposal. However, in June of 1972, the Chairman of Business Education at the University of Iowa informed petitioner that "the next step in our program will be for you to develop your research proposal for your dissertation and submit it to me." There was no evidence that Petitioner has done any significant work toward the completion of his dissertation since the submission of his proposal in July of 1971, despite a written warning from his department chairman at USF in June of 1973 that "it is essential that you make substantial progress on your doctoral degree," and a memo dated January 17, 1974, from Dr. Kallaus at the University of Iowa Business Education Department stating that "the dissertation just has to have 'top billing' in order for you to complete your program within the time requirements." Apparently, petitioner has until February of 1978 to complete his dissertation for the Ph.D. in the College of Education at the University of Iowa. Petitioner would still like to obtain his Ph.D. degree but does not know when he will do so. He states that he does not place great emphasis on the actual worth of a dissertation and considers it to be just another research project. While one witness testified that writing a dissertation had not helped him much, every other witness who had written a dissertation and attained his Ph.D. felt that the writing of a dissertation was extremely valuable in teaching, in grading papers, in relating to students and in the acquisition of research skills. There was testimony from two of petitioner's colleagues in the Department of Marketing that in the Fall of 1971, petitioner asked them both if they would be willing to write a portion of his dissertation for him. These conversations were never reported to the Chairman, the Dean or any other person, with the possible exception of one other faculty member. Thus, it does not appear that this played any part in the tenure decision under consideration herein. Petitioner denied having ever asked anyone to write his dissertation. While he may have asked for help with the mechanics of using the computers or the refinement of statistics, the research proposal was already completed and thus he needed no further help, according to petitioner. As noted above, petitioner was continuously employed under annual contracts as an assistant professor of marketing, a tenure-earning position, from September of 1969 through June of 1975, and received pay raises each year. During this period of time, annual evaluations for the purpose of pay raises were performed. For the fiscal year 1972/73, petitioner ranked sixth out of eleven in priority for a pay raise. On a five point scale, the department chairman ranked petitioner three on teaching effectiveness, and four on research and creative activity, academic advisement, service and overall quality. For the fiscal year 1973/74, a committee consisting of five faculty members rated petitioner on a three point scale as a two in the areas of teaching effectiveness, research and creative activity, academic advisement, service and overall quality. The committee noted that the rating on teaching effectiveness was a high two, while the research rating was a low two. For the same year, petitioner was rated by his chairman as three in teaching effectiveness and two in the other four areas. Petitioner was again evaluated in July of 1975. The faculty evaluation committee rated him between 2.0 and 2.6 on a three-point scale in all five areas; and the chairman rated him as a one in all categories except service, for which petitioner was rated as a two. At the time petitioner was hired by respondent, the Florida Board of Regents and the respondent defined tenure as that condition attained through highly competent research and teaching, or other scholarly activities, length of service, and contributions to society. The guidelines for tenure from that time to the present include a requirement for a high degree of competency in the areas of teaching, research or other scholarly activities and service. It has also been a guideline that normally the faculty member shall have completed five years of continuous service and shall have attained the terminal degree before being eligible for tenure. In addition to these written criteria and guidelines for tenure promulgated by the Florida Board of Regents and adopted by respondent, tenure was discussed by various witnesses. It was opined that in order to receive tenure, a faculty member should be of above average competency in at least two of the three areas of teaching, research and service. Others stated that a faculty member should be above average in all three areas, unless he clearly excelled in one area. Still another felt that the faculty member should excel in all three areas before being granted tenure. Average was defined in terms of everyone in the profession, not merely those in one's particular department or college. It was explained that the importance of having a terminal degree is that such a degree implies that certain standards of competence have been met. The status of tenure is important in that it guarantees the faculty member academic freedom and it gives the University time to evaluate how the faculty member will use such freedom. The Dean of petitioner's College further felt that an important criteria or guideline to be used in determining tenure recommendations is the high probability of continued high quality performance and professional growth in the faculty member, as well as the availability of significantly better qualified people, at equal cost, outside the University. It was agreed that with the coming of a new Dean in the Fall of 1973, more emphasis has been placed on research in the College of Business Administration. In January of 1974, which was the middle of his fifth year of continuous employment at USF, petitioner was considered for tenure. Pursuant to this, he prepared what is known as a "tenure packet" for consideration by those who would be voting on the issue. AT this time, it was the practice for the tenured faculty members of the Marketing Department to review said tenure documents and vote by secret ballot as to whether the petitioner would be granted, denied or deferred tenure status. Comment was also solicited by the department chairman from the nontenured faculty members. At this point the chairman reviewed all materials presented and made his recommendation to the Dean of the College of Business Administration, and the Dean made his recommendation to the Vice-President for Academic Affairs. In this case, petitioner prepared his "tenure packet," utilizing a standardized form and supplementing it with additional materials and correspondence. Petitioner's "packet" was approximately one inch thick and was reviewed by all those casting a vote on the tenure issue. After reviewing said packet, the three tenured faculty members of the Department of Marketing unanimously voted to grant petitioner tenure. At least two of the three tenured members also wrote letters of recommendation on his behalf. Several other persons from outside the Marketing Department also wrote letters of favorable recommendation to the department chairman. The chairman also solicited the responses of nontenured department faculty members by means of a peer evaluation form. Apparently, these forms were not utilized by said faculty members in the manner contemplated. Some apparently did not respond at all, and those who did provide a written response did so by comments, rather than by assigning numerical ratings to the items for evaluation. One faculty member concluded that petitioner "is qualified in view of his outstanding relationships with the local business community." Another refused to pass judgment upon the tenure issue inasmuch as he felt tenure should be abolished. However, he did relate to the chairman that he felt that the research and writing presented in petitioner's tenure document was methodologically questionable. He also questioned the reliability of the survey taken by petitioner to support his teaching ability and the inclusion of formal and informal letters and evaluations dealing with the distributive education courses taught by petitioner through the College of Education (See Finding 12 below). This same faculty member wrote favorably of petitioner's accomplishments in the area of service, but concluded that petitioner "would perhaps find more satisfaction and more recognition of his accomplishments in the area of distributive education than in the Marketing Department." A third non-tenured faculty member suggested that there was a degree of bias with regard to the questionnaire soliciting comments regarding petitioner's teaching effectiveness and that it was impossible to determine whether the data obtained refers to marketing or distributive education courses. This faculty member also felt that petitioner's talents and interests lay elsewhere than in the Marketing Department and that one who would make a greater contribution to the Marketing Department could be obtained at a lower price. He therefore did not feel that petitioner should be granted tenure in the Marketing Department. A large portion of petitioner's tenure packet is composed of student comments received as a result of a questionable mailed by petitioner to his former students. Petitioner was of the opinion that evaluation of teachers by graduates after a period of time was more meaningful than the present student evaluations. Department funds were used to mail these surveys and petitioner prefaced it with a letter to his former students. This letter contained the following language: "Many times in class I said that you would never really know the value of your classes until later. Now it is later; and I need your help. As you know my teaching methods and objec- tives are rather controversial. My appli- cation for tenure and promotion must be submitted on January 15th, and I would like to include in this application your comments as to the effect (good or bad) if any, that I as a teacher have had on your career. If you have the time please include a short note on what you are doing. Teachers seldom know what happens to their former students. I want to thank you in advance for doing this on such short notice. Good luck." It was felt by most witnesses questioned on the subject that the use of such a cover letter and the form of the questions contained in the survey could produce only biased results. The chairman of the Marketing Department reviewed the materials discussed in paragraphs 9 through 12 above and recommended that petitioner be granted tenure, concluding that petitioner had maintained a consistent pattern of productivity over the past five years in teaching, research, writing, presenting programs and service. It was believed by the chairman that petitioner's efforts in all areas would continue at a rapid pace and that "it would be difficult if not impossible to replace this man with one so dedicated and with his unique talents considering his present rank and salary." The chairman praised his service activities and called him an innovative teacher. He remarked that "Professor Wallace is the only person in Marketing (other than Professor Stevens) who appears willing to work with Distributive Education or other units of the University on interdisciplinary programs." With regard to the area of research, the chairman remarked in part that "Some of his research efforts have been some- what misdirected to other than scientific or theoretical marketing per se, but the results of such efforts are applicable to Marketing Education, Distributive Education, and general Business Education. His research methodology is at times technically ques- tionable; however, he has been asked to pre- sent papers and be on discussion panels for the Southern Marketing Association and the American Marketing Association. His articles have appeared in refereed and non-refereed journals..." The Dean of the College of Business Administration reviewed petitioner's tenure packet, the secret ballot by tenured faculty members, letters of recommendation, comments by some nontenured faculty members, and the opinions and recommendation of the Department Chairman. The Dean recognized that petitioner had good rapport with students and had emphasized a practical approach in teaching by taking classes out to businesses. However, it was felt that petitioner's skills seemed "more in salesmanship and organizing ability than in academic analysis and scholarship" and that "he would be more at home practicing in the business world than teaching in the academic world." Dean Dye felt that what was lacking in the marketing faculty were persons evidencing a high degree of scholarship and noted that petitioner had not yet completed his doctoral studies. It was felt that good people, with terminal degrees and research drive were available and should be sought, and that it was not in the best interests of the University to grant petitioner tenure. Dean Dye did not philosophically disagree with petitioner's articles, but felt they were neither scholarly nor based on competent research methodology. The Dean has not seen any significant results done in the area of research by petitioner. As for the area of service, Dean Dye felt that petitioner's efforts were above average in quantity, but below average in quality. With Dean Dye's recommendation, the tenure documents were then sent to Dr. Carl Riggs, Vice-President for Academic Affairs. Dr. Riggs declined to recommend the granting of tenure in petitioner's case, thus supporting the recommendation of Dean Dye. When petitioner requested the reasons for his negative recommendation, Dr. Riggs restated the reasons stated or implied in Dean Dye's explanation of tenure recommendation. These were: "1) No terminal degree and lack of compen- sating experience or background. An apparent lack of scholarship, i.e., depth of knowledge in field, and scholarly productivity not sufficiently evident. Your strengths supplement rather than complement those of other faculty in this department and the need for complementation is greater. Interests of the Department and College better served by finding a replacement who can perform or perform better those functions needed by the Department of Marketing and the College of Business Administration." Riggs was of the opinion that the University could attract persons more qualified than petitioner and that petitioner had done no significant research in the area of marketing. While Dr. Riggs may have disagreed somewhat philosophically with the opinion-type articles written by petitioner, he thought they were refreshing. His decision to deny tenure to petitioner was not based on a difference of opinion with the views expressed in petitioner's writings, but rather because he felt petitioner's articles were not based upon competent research methodology. Riggs acknowledged petitioner's success in the area of service and distributive education. Riggs further stated that neither politics nor petty dislikes or jealousies within the College of Business Administration played any part in his consideration of whether petitioner should be granted tenure. The process of evaluation for tenure recommendation was thus completed, having travelled the following route: preparation by petitioner of his tenure packet; the favorable vote of the department's three tenured faculty members; the receipt of comments from some of the nontenured faculty; the favorable recommendation of the Department Chairman; the negative recommendation of the College Dean; and the negative decision of the Vice-President for Academic Affairs. Petitioner was thereafter timely notified on March 15, 1974, by the Vice- President for Academic Affairs that his employment would not be renewed after Quarter III of the academic year 1974/75, and that the last day of employment with the University would be June 19, 1975. Informal grievance proceedings within the university were thereafter instituted by petitioner. Failing to achieve a satisfactory result from such proceedings, petitioner filed his complaint seeking a plenary hearing. This complaint was forwarded to the Division of Administrative Hearings, and the undersigned Hearing Officer was ultimately assigned to conduct the plenary hearing. The evidence presented at the hearing does suggest that there was some unrest and difference of opinion within both the Department of Marketing and the College of Business Administration. It appears that the Marketing Department was divided into two factions, identified by witnesses as the "qualitative" and "quantitative" factions. There was also some dispute within the College regarding Dean Dye's hiring practices and criteria and guidelines for tenure decisions. While much time and evidence was devoted to the existence of these factions and disputes, it cannot be found from the evidence that their existence tainted the procedures for tenure evaluation in this case. The evidence adduced at the hearing clearly illustrates that petitioner's highest level of competence lies in the area of service to the community. He has built a good rapport with many Tampa businessmen and has organized various business meetings and seminars. Many of those businessmen who testified acknowledged that for the first time they were drawn to the University as a result of petitioner's efforts in a Top Management Seminar and a Career Development Program. Some members of the Marketing Department testified that petitioner was the outstanding member of the department in the area of service to the community. The Vice-President for Academic Affairs agreed that petitioner was doing one of the better jobs within the College of Business Administration in the area of service to Tampa businessmen. While a few members of the faculty did not feel that petitioner's presentation at the Top Management Seminar evidenced scholarship, most Tampa businessmen who testified praised petitioner's efforts as demonstrating a contemporary approach to business problems and a working, practical knowledge in the filed of marketing. With regard to petitioner's efficiency in the area of teaching, it has already been pointed out that petitioner received predominantly average to above average ratings by his peers over the six years in question. A number of his former students testified and concluded that petitioner was one of the best teachers they had ever had. They stated that they worked hard in petitioner's classes and learned more in his classes than in other classes. Some testified that petitioner's courses were more difficult and demanding then other business courses. Petitioner stressed the application, rather than the mere memorization, of theory and sent this students out to various businesses to prepare research projects. Some of his former students described him as dynamic, interesting, resourceful and well-prepared for class. Other faculty members thought petitioner to be sincerely interested in practical education and in helping his students. The graduating seniors of 1974 voted petitioner one of the top ten teachers of the University of South Florida. There was evidence that petitioner's student evaluations improved markedly in 1973. One marketing professor attributed this to the fact that petitioner stopped giving written examinations and his students received higher grades. The evidence illustrates that in 1972, petitioner's student evaluations were at approximately the college median level. In 1972, he gave his students 17 A's, 100 B's 34 C's, 4 D's and 11 F's. In 1973 his student evaluations were consistently above the college median level. In that year the grade distribution to students was 138 A's, 64 B's, no C's, 1 D and 1 F. Other reasons were, however, offered for the increase in high grades, such as student motivation, change of teaching methodology and the quality of student who registers for the course based upon the reputation of the teacher as being hard or easy. A faculty member who substituted for petitioner testified that petitioner's students had not read the course syllabus or the textbook. Others testified that. sending students to various businesses to do research projects was not innovative, and that other members of the marketing department utilized similar techniques. Of the three areas for evaluation, it was the conclusion of some that petitioner's weakness lies in the area of research and other scholarly activities in the field of marketing. His progress on his dissertation has been previously discussed. While he has written a number of published articles, the evidence shows that most of these can be classified as opinion articles or essays, rather than as articles based upon competent research methodology. Several articles and papers are in the area of business education, not marketing. There was some testimony that these articles, many of which are variations on the same theme, constituted comments on relevant social issues, and should not be measured on the basis of whether they are scholarly and methodologically sound. Yet, Petitioner attached his professional credentials to these articles and listed them in his tenure documents under the heading of scholarly publications. The Dean of the College of Business Administration and the Vice-President for Academic Affairs, who voted against petitioner for tenure, testified that the main reason for not granting tenure was lack of a terminal degree and lack of evidence of scholarly research. Although some disagreed philosophically with the articles written by petitioner, their vote to deny tenure was not based on this fact, but upon the fact that the articles did not display evidence of competency in scholarly research. Petitioner was instrumental in getting other marketing professors to write articles for Florida Trend Magazine, but he himself did not participate in the writing of the series of articles which appeared. Petitioner also listed in his tenure documents that he was working on a book. There was evidence that no progress, in written form, has been completed to date on said book, although petitioner stated in his tenure documents that "the basic research has been completed." Petitioner did obtain six teaching grants from the State Department of Education. However, these grants were in the area of distributive education or in the field of training teachers and were obtained through the College of Education, not the College of Business Administration. The evidence concerning petitioner's degree of competency in the area of research and other scholarly activities with regard to seminars and outside consulting work is conflicting. While many indicated they were pleased with petitioner's performance in the seminars and consulting work, others expressed displeasure with petitioner's performance. Petitioner has received recognition for his publications. He has presented papers to the Southern Marketing Association, and was nominated for the American Association of Collegiate Schools of Business - Western Electric Fund Award. These presentations were, however, more in the field of business or distributive education than in marketing.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is recommended that the complaint be dismissed for the reason that petitioner did not meet his burden of demonstrating the unlawfulness of the tenure and nonrenewal decisions reviewed herein. Respectfully submitted and entered this 26th day of ,January, 1976, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9676 COPIES FURNISHED: William D. Holland, Jr., Esquire Suite 304, First National Bank Building 215 Madison Street Tampa, Florida 32602 D. Frank Winkles, Esquire & William E. Sizemore, Esquire of Shackleford, Farrior, Stallings & Evans P.O. Box 3324 Tampa, Florida 3324 Dr. Cecil Mackey, President University of South Florida ADM 241 Tampa, Florida
The Issue The issue presented is whether Respondents are guilty of committing a discriminatory practice against Petitioner, in violation of the Florida Civil Rights Act of 1992, by denying her a promotion and/or by constructively discharging her from her employment.
Findings Of Fact Petitioner Dianna Decker, a white female, began her employment with Respondent Gadsden County School Board on July 14, 1998. Her first job position was as the Training Coordinator/Specialist. In July 2002, Petitioner absorbed the additional duties of Staff Development Coordinator. Respondent Reginald James, a black male, was elected Superintendent of Gadsden County Schools in November 2004 and has continuously served in that capacity due to his re-election in 2008. In July 2005, Superintendent James promoted Petitioner to Director of Staff Development and Personnel. Petitioner applied for this promotion on July 7, 2005, after James told her he would like her to take the job. This promotion included a $13,000 annual increase in her salary. On July 13, James directed the School Board's finance department to begin paying Petitioner at the increased pay rate retroactive to July 1. On July 26, the School Board officially appointed Petitioner to the position to which James had promoted her, with the retroactive effective date of July 1. For purposes of employment with the various school boards in Florida, the superintendent "recommends" that a person be hired for a particular position, and the school board approves or disapproves the recommendation. Respondent James also gave Petitioner an additional $1,500 increase in salary during the 2005-06 school year. Petitioner and James enjoyed a good working relationship. As Director of Staff Development and Personnel, Petitioner had at least daily contact with James. Throughout her employment with the School Board, Petitioner applied for a variety of employment positions outside of the Gadsden County School System. Some of the positions she applied for were education-related, and some were not. Some of the positions she applied for were in Florida, and some were outside of Florida. By her own testimony, Petitioner kept her eyes open for opportunities for growth and upward movement. Dr. James Brown was the Deputy Superintendent of the Gadsden County School System from prior to the beginning of Petitioner's employment until his retirement in July 2007. Petitioner, Superintendent James, Dr. Sonja Bridges, and other personnel attended weekly management-team meetings at which they discussed, among other things, the attempts being made to find a replacement for Dr. Brown. Prior to Dr. Brown's retirement date, the Deputy Superintendent position that Dr. Brown was vacating was advertised. Although Superintendent James interviewed several candidates for the position, he was unable to find an acceptable candidate to hire. During the months of searching for a deputy superintendent to replace Brown, Dr. Sonja Bridges told James that she would take the job if he could not find anyone else. In a letter dated July 10, 2007, Petitioner wrote to the Jefferson County Schools in Louisville, Kentucky, asking to be considered for the position of Director of District Personnel/Human Resources which was being advertised. The morning of July 11, 2007, Superintendent James asked Petitioner to post a job opening for an Assistant Superintendent for Academic Services position. Later that same day James announced that he had chosen Dr. Sonja Bridges to fill that position. Petitioner told James that Bridges was not qualified to fill the position as it was described in the job posting. James told Petitioner that they would modify the position so that Bridges would be qualified and instructed Petitioner to take down the job description that she had posted. Petitioner also did not meet the qualifications for Assistant Superintendent for Academic Services as the position was posted, and she did not apply for that position during the short time between its posting and its removal. At its July 24, 2007, meeting, in accordance with its standard practice, Respondent Gadsden County School Board proposed a rule change that would modify the job description for an Assistant Superintendent for Academic Services position. This proposed modification was required to be advertised to the public for 30 days to receive comments and could not be finalized until at a Board meeting following the conclusion of that notice period. On August 6, 2007, Petitioner re-posted the Assistant Superintendent for Academic Services position. The proper procedure would have been to wait until after the School Board had approved the rule change at a subsequent meeting, and then post the position. Neither James nor anyone else requested or authorized Petitioner to re-post the position prior to the position being approved by the School Board, and Petitioner re- posted it against established School Board procedure. Also on August 6 Petitioner completed her application for the position and handed it to Regina Gore, a secretary who reported to Petitioner. Petitioner gave Gore no instructions as to what to do with Petitioner's employment application. Petitioner's job responsibilities included compiling and submitting job applications and presenting them to Superintendent James for his consideration. However, Petitioner did not tell anyone other than Gore that she had completed an application for the Assistant Superintendent for Academic Services position, and she never compiled and submitted to James for his consideration her application and the other application that was received in response to her unauthorized August 6 job posting. At its August 2007 meeting, Respondent Gadsden County School Board adopted the rule change for the modified job description after receiving no comments from the public during the 30-day comment period. Respondent Gadsden County School Board then officially appointed Dr. Bridges to the position of Assistant Superintendent for Academic Services to which Superintendent James had promoted her, with a retroactive effective date of July 2, 2007. Dr. Bridges meets the qualifications for the modified Assistant Superintendent for Academic Services position, as does Petitioner. In her new position, Dr. Bridges became Petitioner's immediate supervisor. Prior to Bridges' promotion, she and Petitioner had a professional and friendly working relationship; however, after her promotion, Petitioner became uncomfortable working under Dr. Bridges and had difficulty taking directives from her new supervisor. During the time that Respondent James has been the Superintendent of Gadsden County School System, he has recommended, and Respondent Gadsden County School Board has approved, two Assistant Superintendents: Dr. Bridges and Ms. Bonnie Wood. There have been no other Assistant Superintendents under Superintendent James. Dr. Bridges is a black woman, and Ms. Wood is a white woman. Ms. Wood is the Assistant Superintendent for Business and Finance and, like Dr. Bridges, reports directly to Superintendent James. There were three applicants for Ms. Wood's position: Ms. Wood and two black males, and Superintendent James hired her. There have not been any Deputy Superintendents since Dr. Brown retired. On September 28, 2007, Petitioner was offered the position of Director of Human Resources, Certified Division, with Jefferson County Schools in Louisville, Kentucky. By letter that same day to Superintendent James, not to her supervisor Dr. Bridges, Petitioner voluntarily resigned from her position with Respondent Gadsden County School Board, effective November 15, 2007. After her departure, Petitioner's position was filled on an interim basis by a white male. At the time she voluntarily resigned from her employment with Respondent Gadsden County School Board, Petitioner earned $66,363 annually. Petitioner's salary at her job in Kentucky with the Jefferson County Schools as of the date of the final hearing in this cause was $119,000 annually. Superintendent James never saw Petitioner's application for the position filled by Dr. Bridges until Respondents' counsel showed him a copy in February 2009 in preparation for the final hearing in this cause. Furthermore, James never heard of Petitioner having any interest in that position until after Dr. Bridges' appointment was made official by Respondent Gadsden County School Board. Even then, he did not hear of Petitioner's interest in the position from her; rather, he learned of her disappointment in not having been given the job from comments made to him by others. On December 10, 2007, Petitioner filed a Complaint of Discrimination with the Florida Commission on Human Relations alleging that she had been discriminated against by Respondent James and Respondent Gadsden County School Board.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Petitioner has failed to prove that Respondents committed an act of discrimination against her and dismissing Petitioner's petition for relief filed in this cause. DONE AND ENTERED this 6th day of May, 2009, in Tallahassee, Leon County, Florida. S LINDA M. RIGOT 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 6th day of May, 2009. COPIES FURNISHED: Bruce Alexander Minnick, Esquire The Minnick Law Firm Post Office Box 15588 Tallahassee, Florida 32317 Matthew Carson, Esquire Linda G. Bond, Esquire Rumberger, Kirk & Caldwell, P.A. 215 South Monroe Street Tallahassee, Florida 32301 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
Findings Of Fact Petitioner has been employed in the Department of Psychiatry, College of Medicine, University of Florida, as an Instructor in Social Work since May, 1974. Petitioner completed her undergraduate work in sociology in 1963 at the University of Chile, and earned a master's degree in social work at the University of Kansas in 1974. The Master's of Social Work degree is the terminal degree in Petitioner's field. Since her initial employment, the Petitioner's duties and responsibilities have remained virtually unchanged. She has been assigned to Adult In-patient Services in the Department of Psychiatry at J. Hissis Miller Health Center in Gainesville, Florida, and has been required by the terms of her faculty assignment to devote approximately twenty-five percent of her time to the medical degree program; thirty-two percent of her time to house staff training; twelve percent of her time to teaching/research; and twenty-eight percent of her time to non-instructional patient care, with the remaining portion of her time devoted to various other duties. Petitioner's primary responsibility was providing health care services to patients and instructional services to house staff members, medical students and students from various other disciplines. Petitioner's teaching responsibilities were not performed in the classical classroom setting, but were accomplished in a clinical setting, with some responsibility for guest lecturing outside the hospital. As a non-tenured instructor in the Department of Psychiatry, Petitioner was appointed on a year-to-year basis, and her contracts of employment were for a full twelve-calendar-month period. Sometime in 1975, the Chairman of the Department of Psychiatry furnished to Petitioner a copy of the Board of Regents Policy Manual which included the factors necessary for evaluation in order for an employee in Petitioner's position to achieve tenure. Among these factors was included a provision concerning participation in "research and other creative activities." Accordingly, it is specifically found that all times material hereto, Petitioner knew, or should have know, that research and creative activities were among the factors upon which she would be evaluated should she purse a tenured position at the University of Florida. From Petitioner's initial employment in 1974, through the time she submitted her tenure application in 1978, no written evaluations of her performance were made. In fact, the only written evaluations of Petitioner's instructional efforts during her entire employment period were generated in conjunction with her application for tenure and promotion. Although Petitioner spoke occasionally with her department chairman concerning the advisability of scholarly activity leading to the publication or other dissemination of her work in the academic community, she was never advised of any deficits in the area of "teaching" until after she applied for tenure. In late 1978, when Petitioner was in her fifth year of non-tenured employment at the University of Florida, she was considered for tenure and promotion in accordance with tenure policies of the Respondent and the Board of Regents. In the course of this consideration, three areas of Petitioner's performance were evaluated: service; research and other creative activities; and teaching. Petitioner's rendering of health care services in the context of her clinical duties falls into the area of "service" in connection with her application for tenure. The evidence in this proceeding clearly establishes that Petitioner is an outstanding clinician, and has proven very effective in performing her resonsibilities in the areas of group, individual and family therapy, and follow-up care planning. Petitioner has also been active in establishing a rape counselling program in the Gainesville area, and although she has served on no university-wide committees, it does not appear that she was invited to do so, or that she could have done so absent such an appointment or invitation. With respect to the area of "research and other creative activities," the record establishes that Petitioner has prepared two articles, one of which was accepted for publication but was not, in fact, published due to the untimely demise of the journal in which the article was to have been published. In addition, since evaluation of her tenure application by Respondent, Petitioner has delivered a paper to a meeting of the American Psychiatric Association. Another social worker who applied for and was granted tenure in the Department of Psychiatry contemporaneously with Petitioner's application had published six or seven articles in scholarly journals, an had been active in speaking engagements in her area of research and scholarship. With respect to the "teaching" element of Petitioner's tenure application, as previously noted, no written teaching evaluations existed in Petitioner's personnel file from the time of her employment in 1974 until the time of her tenure application in late 1978. In response to requests from both Petitioner and the Chairman of the Department of Psychiatry, various psychiatrists and social workers who were familiar with Petitioner's teaching, both as students and fellow faculty members, submitted letters which were almost uniformly laudatory of Petitioner's teaching ability. In addition, during December 1978, sixteen faculty evaluation forms were distributed to faculty members in the Department of Psychiatry soliciting their evaluations of Petitioner's teaching ability. Of these sixteen faculty members, only ten attempted to rate Petitioner as a teacher. The evaluation form required the evaluator to assign a number value to Petitioner's teaching ability with "a" indicating outstanding ability; "2", above average ability; "3", average ability; "4", unsatisfactory performance, and "5", totally inadequate performance. These number values were assigned in each of the following seven teaching areas: depth and newness of knowledge; admits lack of knowledge when appropriate; ability to convey information; receptive to new ideas or criticism; genuinely interested in teaching; stimulating teacher; and, in relating to patients, does teacher convey compassion and concern for the individual. In addition, the form provided for some indication of the extent of contact the evaluator had had with Petitioner, the form of that contact, and for discussion of strong and weak points of Petitioner's teaching ability, together with any additional comments that the evaluator might choose to make. The results of this evaluation were that, of the ten people evaluating Petitioner's teaching ability, three gave her an overall rating of "Outstanding"; two evaluated her as "Above Average"; three considered her an "Average" teacher; one thought her to be "unsatisfactory"; and one evaluator felt her to be "Totally Inadequate". Interestingly, only six of the ten persons evaluating Petitioner's teaching ability indicated that they had sixteen or more hours of contact with her as a teacher during the entire five-year period of her employment at the University of Florida. Further, there is no indication in any of the documents admitted into evidence in this proceeding, or in any of the testimony at final hearing whether those evaluating Petitioner's teaching ability did, in fact, have sufficient knowledge in this area upon which to form a competent opinion of her performance. The Chairman of the Department of Psychiatry used the data generated from the "faculty evaluation" forms to compute a mean teaching ability score for Petitioner, which was then, in turn, compared against the "department mean". The "department mean", however, was not a true reflection of the teaching evaluations of the faculty of the Department of Psychiatry, as a whole, but included only those other candidates for tenure and promotion who were being considered at the same time as Petitioner. The record reflects that, in addition to social workers, members of as many as four other disciplines were being considered for tenure and promotion in the Department of Psychiatry at the same time as Petitioner. Consequently, Petitioner was neither being compared against the entire faculty of the Department of Psychiatry, nor against other social workers employed in the Department, either tenured or non-tenured. Petitioner was evaluated below the departmental mean in each of the seven separate areas of evaluation mentioned above, and her overall mean rating of 2.70 was also below the department mean of 1.89. After Petitioner's tenure packet, including teacher evaluations and other back-up data, was prepared, it was submitted to the Tenure committee of the Department of Psychiatry, which voted seven to three, with one abstention in favor of granting tenure to the Petitioner. The Chairman of the Department of Psychiatry then forwarded Petitioner's tenure packet to the Dean of the College of Medicine with his recommendation that she be granted tenure, which, in effect, made the departmental vote eight to three, with one abstention in favor of granting tenure. While not directly relevant to this proceeding, the Departmental vote taken on the promotion of Petitioner from the rank of Instructor to Assistant Professor was eighteen to four, with two abstentions, in favor of promotion. Petitioner's tenure packet was submitted to the Tenure Committee in the College of Medicine, which committee consisted of seven members. Two members of the committee were assigned as the primary and secondary reviewers of the application, one of whom testified at final hearing in this cause that the faculty evaluation forms themselves were not furnished to the committee, and that the committee was not advised that Petitioner's mean scores were compared to a departmental mean consisting of only those other faculty members being considered for tenure at the same time. This particular committee member was under the impression that the department mean against which Petitioner was compared consisted of all members of the faculty in the Department of Psychiatry. The vote of the College of Medicine Tenure Committee was six to one against the granting of tenure, with the only affirmative vote being that of the Chairman of the Psychiatry Department. In his letter advising the Chairman of the Department of Psychiatry of the outcome of the vote before the College Tenure Committee, the Dean of the College of Medicine wrote that: As you are aware, a candidate for promotion or tenure should be highly qualified in at least two or three areas: teaching, research or service. The only area in which Mrs. Vera appears to have strength is the area of service as research is almost non-existent and her teacher evaluations range from average to less than average. As a matter of policy, the University of Florida Personnel Board, in considering grants of tenure, looks for a demonstration of strength in at least two of the three areas of evaluation. Situations have existed in which tenure has been granted upon a showing of competence in the remaining two areas. The Personnel Board, as a matter of course, looks for teaching ability above departmental average in those persons being considered for tenure. In addition, it is customary practice at every level of the tenure granting process not to afford a tenure applicant an opportunity to appear in person before the various tenure committees. Both Petitioner and Respondent have submitted proposed Findings of Fact in the course of this proceeding. To the extent that those Findings of Fact have not been adopted in this Recommended Order, they have been rejected as not having been supported by the evidence, or as having been irrelevant to the issues under consideration herein.
Recommendation Based upon the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that a Final Order be entered by the President of the University of Florida requiring that Petitioner's appointment as a non-tenured social work instructor in the Department of Psychiatry, College of Medicine, University of Florida, be extended for a period of at least one year, or such longer time as may be necessary to properly evaluate Petitioner's teaching performance in accordance with applicable statutes and rules and regulations promulgated by the Board of Regents and the University of Florida. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 20th day of February, 1980. WILLIAM E. WILLIAMS Hearing Officer Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of February, 1980. COPIES FURNISHED: Selig I. Golden, Esquire Post Office Box 1251 Gainesville, Florida 32602 Ashmun Brown, Esquire University Attorney's Office 207 Tigert Hall University of Florida Gainesville, Florida 32611
Findings Of Fact Respectively on September 20 and September 9, 1988, the Petitioner and the Respondent submitted to the Hearing Officer their proposed Findings of Fact. In the Appendix To Recommended Order the Hearing Officer submitted recommending rulings thereon. The following constitutes the rulings in this Final Order on those proposed Findings of Fact. The petitioner's proposed Findings of Fact numbers 1 and 5 are hereby accepted and adopted in that they are supported by competent substantial, evidence. The petitioner's proposed Finding of Fact No. 2 is hereby rejected in that the petitioner did not terminate her position on August 17, 1987, and she was not reemployed on September 29, 1987, for the reasons stated above in paragraphs numbers 1 through 12. The Petitioner's proposed Finding of Fact No. 3 is hereby rejected upon the grounds and for the reasons stated in paragraphs No. 7 and 8 above. The Petitioner's proposed Finding of Fact No. 4 is rejected as phrased, for the reasons and upon the grounds set forth in paragraph No. 4 above. The Respondent's Proposed Findings of Fact numbers (1) through (7) are each hereby accepted and adopted in that they are each based upon competent, substantial evidence.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a Final Order be entered finding that Petitioner became a member of the Florida Retirement System in September 1987 and allowing Petitioner to transfer her previously-earned Teachers' Retirement System credits to the Florida Retirement System. DONE and RECOMMENDED this 1st day of November, 1988, at Tallahassee, Florida. LINDA M. RIGOT 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 1st day of November, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-0673 Petitioner's proposed findings of fact numbered 1-5 have been adopted either verbatim or in substance in this Recommended Order. Respondent's proposed findings of fact numbered 1-4 have been adopted either verbatim or in substance in this Recommended Order. Respondent's proposed finding of fact numbered 5 has been rejected as being contrary to the weight of the evidence in this cause. Respondent's proposed findings of fact numbered 6 and 7 have been rejected as not being supported by the weight of the evidence in this cause. COPIES FURNISHED: Patricia Ann Ash, Esquire Harold N. Braxton, Esquire One Datran Center, Suite 406 9100 South Dadeland Boulevard Miami, Florida 33156 Burton M. Michaels, Esquire Department of Administration 440 Carlton Building Tallahassee, Florida 32399-1550 Adis Vila, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Augustus D. Aikens, Jr., Esquire Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 =================================================================
Findings Of Fact In early 1979, the Department of Administration, Division of Personnel, prepared for the Governor a document entitled Recommended Salaries and Benefits for Career Service Employees for the Biennium July 1, 1979, to June 30, 1981. The purpose of this document was to assist the Governor in making recommendations to the 1979 Legislature regarding salaries and benefits for the State's Career Service employees. Approximately one month after publication of its initial recommendations, the Department of Administration published a supplement to those recommendations to reflect the results of collective bargaining negotiations with various bargaining units and to clarify certain points. With respect to merit salary increases, it was recommended that all funds not distributed as guaranteed merit increases in accordance with specific collective bargaining agreements be "distributed at the discretion of management" to employees with six months satisfactory service as of September 1, 1980. For the supervisory bargaining unit of which all Petitioners are members, all merit funds were to be distributed at the discretion of management. The Governor's recommendations contained in the document prepared by the Department of Administration were furnished to legislators and all State agencies prior to adoption of the Appropriations Act. In 1979, in the Appropriations Act for the Biennium 1979-81, as supplemented in 1980 by the 1980 Supplemental General Appropriations Act, the Legislature appropriated certain funds to be used for merit salary increases for Career Service employees. These raises were to become effective September 1, 1980. Funds were allocated in a total dollar amount for each collective bargaining unit within each state agency. The Legislature, in appropriating funds for salary increases and benefits for Career Service employees, specifically provided that such funds were to be distributed in accordance with the Governor's recommendations. Ch. 79-212, Sec. 21, Laws of Florida. The Department of Environmental Regulation received merit increase monies for its Career Service employees within the following bargaining units: supervisory-professional, professional, administrative clerical, operational services, and managerial/confidential. Petitioners Leslee A. Williams, Sylvia E. Sakamoto, and Rosemary Bottcher are Career Service employees employed in the Bureau of Water Analysis, Division of Environmental Programs. Leslee Williams is a Microbiologist III. Sylvia Sakamoto and Rosemary Bottcher are Chemist III's. Petitioners are employees within the Supervsory/professional collective bargaining unit. On July 31, 1980, the Secretary of the Department of Administration sent a memorandum to all Department heads with attached instructions for implementation of salary increases for employees in all affected bargaining units, including the supervisory unit. The instructions for distribution of merit salary increases to employees in the supervisory unit provided that the distribution of funds to eligible employees was discretionary with management, subject only to a cap on the maximum amount any employee could receive. This cap of 10, 7.5, or 5 percent of an employee's salary is determined by the employee's official performance evaluation rating. With regard to "discretionary merit salary advancements", the instructions noted that: These increases are provided to reward current employees based upon their performance. These increases are intended to allow employees to progress within the salary range in recognition of their increased worth to the State as an employee. The proper implementation of merit salary advancements is critical to the State's ability to reward tie most competent, qualified and productive employees. While the funds are discretionary as to the actual amount any one employee may receive, management has no discretion as to whether the Funds may or may not be distributed. These instructions were received by DER in early August of 1980, and DER immediately began taking steps necessary to implement the salary increases in time for inclusion in employees' September paychecks. In August, 1980, the Secretary of the Department of Environmental Regulation authorized each of the directors of the three principal divisions within the Department (the Divisions of Environmental Programs, Environmental Permitting, and Administrative Services), as well as the offices of General Counsel and the Secretary, individually, to establish or determine the methods, standards for determining employee merit and employee performance and performance to be used within each division or office for identification of those Career Service employees eligible to receive a merit salary increase. By memorandum dated August 2, 1980 the Director of the Division of Environmental Programs requested that all Bureau Chiefs in his division and certain supervisors meet with him to establish a ranking of employees within the division to be used in determining the amount of merit salary increase each eligible employee would receive. This memorandum provided, in part, as follows: . . . We have available a certain amount of "discretionary" money which can be given as merit raises. This will be over and above those pay increases through pay adjustments or cost of living increases, which are mandated by the Legislature. The discretionary amounts are small; but they are significant enough that we should make every effort to insure fairness recognition of outstanding service and encouragement of those whom the Department needs to keep. The final decision on all increases will be mine alone, but the preliminary ranking and classification of the various persons will be done in collaboration with all of you. We will begin with the personnel evaluations. However, since grading standards for the evaluations differ among various supervisors, we will attempt to bring all evaluation ratings to comparable scales. We will then try to emphasize those qualities, both within the ratings and those not included in the particular categories, which most contribute to the mission of the Department. We must all try to eliminate our personal biases in this process and the biases inherent in the evaluation system. If we succeed, the raises will be both fair and perceived as fair and will be a help to Division and Department morale. I ask your complete cooperation in this process. (Emphasis added) On September 2, 1980, the Director of the Division of Environmental Programs sent a memorandum to all employees of the division explaining the process used in computing merit salary increases for division employees. The September 2, 1980, memorandum contained the following provisions: The raises were awarded based on relative scores given to each employee. This scoring was done by the Director, Deputy Director and Bureau Chiefs (together with independent office heads for those classes which contained their subordinates) in joint session. First, each employee's evaluation was considered and then related to that of ether employees in the class. The employee's other attributes and contribution to his program and the Department was then discussed. His immediate supervisor's rating tendencies were considered (and we, incidentally, gained a very good idea of how different were the different scoring scales used) and the supervisor was called and consulted if there was difficulty in reaching a consensus. In almost every case one or more of the Bureau Chiefs, other than the employee's own, had experience and opinions on that employee to share. We repeatedly examined each other on the possibility of bias and favoritism. Finally, the employee was given a weighted percentage score. Although some discussions were more protracted than others, complete consensus was reached in every case. The Director and Deputy Director then translated the relative scores into both the base salary and the dollars available within the class. Some small further subjective judgements were necessary because of rounding and some inexactness in the formula but they were extremely minor - no more than $1.00 per person and usually much less. The raises given reflect very closely the relative scores from the joint sessions. There is considerable agreement between the curve of the merit raises and the curve of the evaluations. They are far from congruent, however. Some employees with relatively high evaluations got no merit raises; others relatively low got substantial ones. In each case the discussions were very extensive and the decision was made only after all were convinced that an injustice would otherwise result. Such inflated and deflated evaluations will be the subject of much additional scrutiny in the coming year. Merit salary increases for all 192 Career Service employees within the Division of Environmental Programs were determined pursuant to the methods, standards for determining employee merit and employee performance, and procedures contained in the memoranda of August 25, 1980, and September 2, 1980. The three Division directors, the General Counsel, and the Secretary of DER each used different methods to award merit salary increases to employees in their respective offices. The method used by the Director of the Division of Environmental Programs to award merit salary increases for 1980 was different from the various methods used by DER in the past to distribute similar appropriations. Since at least 1975, DER has made a separate determination each year that funds appropriated for merit increases of the manner in which those funds would be distributed. A decision made one year was not prospectively applicable to future appropriations. Since at least 1975, the Department of Environmental Regulation has evaluated the job performance of its Career Service employees on an annual basis pursuant to procedures applicable to the entire Department. Currently, the Department follows the employee performance evaluation procedures contained in Section 3.2, Department of Environmental Regulation, Administrative Services Internal Management Policies and Procedures Manual ("ASIMPP") including exhibits attached thereto. These procedures and criteria were adopted by the Department pursuant to Rule 22A-9.02(1), Florida Administrative Code, and Section 110.201, Florida Statutes, but have never been adopted as "rules" through Section 120.54, Florida Statutes rulemaking proceedings. The policy of the Department, as stated in the ASIMPP, is to use performance evaluations ". . . to award or deny salary increases . . ." In 1976, 1977 and 1978, merit salary increases were awarded to career service employees in the Department based solely upon performance evaluations. In each of those years, the "merit" of employees was determined by the annual performance evaluations, but a differing method of computing the dollar amount was used for each year. However, within categories of employees having the same performance evaluation rating, the method of calculating the dollar amount was uniformly applied. These standards and procedures for awarding merit salary increases in 1976, 1977, and 1978 were in written form, were established by the Secretary of the Department, and were communicated to all employees. There were no merit raises in 1979. Since at least June 19, 1978, the Department of Environmental Regulation has also had in effect a written policy statement which provides in part: The personnel Rules and Regulations provide that merit/anniversary increases be based on performance evaluations Petitioners were given performance evaluations in the summer of 1980 pursuant to the procedures in Sec. 3.2, ASIMPP and each Petitioner was rated "above satisfactory." Petitioners each had at least six months continuous and satisfactory service on September 1, 1980, and were otherwise eligible to receive a merit salary increase on September 1, 1980, but were denied such a salary increase. Neither of the methods and procedures used by the Division of Environmental Programs to distribute merit salary increases to division employees for 1980, as outlined in the memoranda of August 25, 1980 and September 2, 1980, nor the methods used by the other two divisions and the General Counsel and Secretary were adopted through formal rulemaking in accordance with Section 120.54, Florida Statutes. In each case, the procedures used applied only to Career Service employees within that division or office who were eligible for a merit increase and were used only to determine the distribution of those funds appropriated by the Legislature for the biennium 1979-81. Counsel for Petitioners and Respondent stipulated that the methods used by the Division of Environmental Programs to determine merit salary increases affect the private interests of Petitioners, and further, that Petitioners have standing to bring this petition pursuant to Section 120.56, Florida Statutes. Counsel for both Petitioners and Respondent have submitted proposed findings of fact for consideration by the Hearing Officer. To the extent that such findings of fact are not adopted in this order, they have been rejected as being either irrelevant to the issues in this cause, or as not having been supported by the evidence.
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: Petitioner is now, and was at all times material to the instant case, including June 28, 1993, through January 27, 1994, an employee of the Department working in the economic services unit of the Department's District XI (hereinafter referred to as the "District"). In 1990, Petitioner occupied a PAS (Public Assistance Specialist) I position that, in or around June of that year, was one of 182 such positions in the District to be reclassified to a PAS II position as part of the Department's implementation of the new FLORIDA computer system. 2/ Those employees occupying these reclassified positions (hereinafter referred to as the "upgraded employees") whose salaries were below the minimum salary for a PAS II received a salary increase to raise their salary to the minimum. Petitioner was among the employees who received such a salary increase. Such action was taken in accordance with the following Department policy set forth at page 11 of HRSP 60-1: When an employee is promoted, a salary increase to at least the minimum salary of the higher level position will be made. How- ever, an increase of up to ten percent above the current base salary or ten percent above the minimum for the new class may be approved. An increase of up to ten percent of the current base salary is normally used when the employee's salary is the same or nearly the same as the minimum for the new class. An increase of up to ten percent above the minimum for the new class may be granted when an employee possesses training or experience substantially above the minimum training and experience required for the higher class and it is determined that the employee is exceptionally well qualified for the position. These increases must be approved by an assistant secretary or district administrator. Because of funding constraints that existed at the time, no other salary increases were given to the upgraded employees. Funds for such additional salary increases became available toward the end of the 1992-1993 fiscal year. The increases were approved at both the Department and District level. Petitioner and the other upgraded employees were advised of the increases by a memorandum dated July 7, 1993, from the District XI District Administrator. The District Administrator's memorandum read as follows: Your position has been identified as one which was upgraded as a result of the FLORIDA implementation in 1990/1991. At the time, our records indicate that you received a partial increase, or none at all, because of budgetary constraints. Due to the identification of available monies prior to the end of the Fiscal Year, we are pleased to inform you that you will be receiving a pay increase in your salary war- rant on July 9, 1993. The amount of the in- crease will be either 10[percent] or the difference between what you received in 1990/1991 and 10[percent], and was effective June 28, 1993. Should you have any questions about this in- crease or how it was calculated, please call Arelis Valero at 377-5197. Your continued dedication and service to HRS is sincerely appreciated. District personnel miscalculated the amount of Petitioner's approved salary increase (which was "the difference between what [she had] received in 1990 . . . and 10[percent]" of her pre-reclassification base salary). As a result, following June 28, 1993, the effective date of the increase, for the pay periods ending January 27, 1994, Petitioner was overpaid a total of $769.39. The District discovered the error and revised its payroll records to reflect Petitioner's correct salary. In addition, by memorandum, it notified Petitioner of the mistake that had been made and advised her that it was her responsibility to repay the amount she had been overpaid. By letter dated November 1, 1995, the District XI District Administrator informed Petitioner that the overpayment would be recovered through payroll deductions beginning January 12, 1996, amounting to "10[percent] of [her] gross salary each pay period, unless [she] prefer[red] a single lump sum, until the balance [was] paid." The letter further provided, in part, as follows: If you do not dispute the overpayment, but feel that the repayment schedule of 10 [percent] of your gross salary per pay period is overly burdensome, please call Thomas Franklin at 377-5055 Number135 and he will review with you what must be documented and submitted to the Comptroller's Office (Capitol Building, Suite 1201, Tallahassee, Florida 32399-0350) to request a modification. While the total amount eventually repaid to the State cannot be adjusted, the Comptroller may be convinced to lengthen the repayment schedule by lessen- ing the percentage withheld each pay period. If you do not agree that you were overpaid this amount, you have the right to an adminis- trative hearing under 120.57(1) or (2), Florida Statutes, and Rules 10-2.036 and 28-5, Florida Administrative Code. You may request a formal or an informal hearing. If a request for a formal hearing is made, your petition must be in compliance with Rule 28-5.021, Florida Administrative Code. Please note that Rule 28-5.201(2) specifies that your petition should contain a concise discussion of the specific item in dispute. Informal hearings are governed by Rules 28-5.501-503, Florida Administrative Code. Your request for either a formal or informal hearing must be received by this office, attention Thomas Franklin, within thirty (30) days of your receipt of this letter, in accordance with Rule 10-2.036, Florida Administrative Code. Failure to request a timely hearing shall be deemed a waiver of your right to hearing. By letter dated November 6, 1995, Petitioner advised the Department that that she was not in agreement with the "content" of the District Administrator's November 1, 1995, letter, and that she desired to have a hearing on the matter.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department: find that, from June 28, 1993, until January 27, 1994, Petitioner was overpaid a total of $769.39; notify the Department of Management Services of this finding; and refer the matter to the Comptroller so that the Comptroller may take appropriate action to recover these moneys owed to the state. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 29th day of April, 1996. STUART M. LERNER, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of April, 1996.
Findings Of Fact The Respondent caused the experience increments which had been in effect for all adult education teachers to be modified or terminated, and reduced the hourly wage amounts paid to adult education teachers. However, the real question presented is whether adult education teachers were included within the bargaining unit. The position of adult education teachers was not mentioned either in the inclusions or exclusions of the descriptions of the bargaining unit. Whether they would be included therefore turns upon whether adult education teachers are regularly employed certificated personnel." Adult education teachers were not required to be certificated, one primary requirement for inclusion in the unit. In addition, persons employed in the adult education program included both certificated day-time teachers and administrative personnel specifically excluded from the unit. Their employment was not contractual and could be terminated if a particular class was cancelled or dropped based upon lack of student enrollment. In such a case the adult education teacher's employment would be automatically terminated. Adult education classes were presented at night and the maximum number of hours that any adult education teacher would work would be six (6) hours per week. For both groups, employment as an adult education teacher was in addition to their regular employment. From a budgetary standpoint, adult education teachers were compensated from a separate functional breakout within the school budget to which that portion of their compensation earned as an adult education teacher was charged. No deductions were made from the adult education portion of a teacher's salary for retirement or Social Security. Based on the foregoing facts, the Hearing Officer finds that adult education teachers are not "regularly employed certificated personnel" and therefore, are not within the bargaining unit.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer would recommend that no action be taken on the charges as stated in Paragraphs 10(A)(B)(C)(D)(E)(F)(G)(J)(H) and Paragraphs 11(A) and (B). Based upon the foregoing Findings of Fact and Conclusions of Law relating to Issue XI and Paragraph 10(H) of the complaint, the Hearing Officer would recommend that the Commission enter its order requiring the Respondent to cease and desist its refusal to bargain upon request over mandatory items of collective bargaining. DONE and ORDERED this 29th day of October, 1976 in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Ron Meyer, Esquire Frank & Meyer, P.A. Flagship Bank Building Tampa, Florida Norman J. Smith, Esquire Brinson and Smith, P.A. Post Office Drawer 1549 Kissimmee, Florida 32741 Austin Reed, Esquire Public Employee Relations Commission 2003 Apalachee Parkway Tallahassee, Florida 32301 Mr. Leonard Carson, Chairman Public Employees Relations Commission 2003 Apalachee Parkway Tallahassee, Florida 32301
The Issue Should Respondent's tenure status be removed and he be terminated from employment with Hillsborough Community College because of the matters set out in the Amended Statement of Charges and Petition For Dismissal filed in this matter?
Findings Of Fact At all times pertinent to the matters in issue herein, the Petitioner, Hillsborough Community College, was a public institution of higher education, with four campuses, two extension centers, three environmental centers, and several other operations located in Hillsborough County, Florida. Respondent, Professor Joseph P. Boyle, was a tenured faculty member on the instructional staff located at the Dale Mabry campus. He has been with the College for more than 20 years. The College's Board of Trustees ordinarily meets once a month at the Administrative Center on Davis Island. The meetings are open to the public, are publicized at least a week in advance, and are based upon a written agenda. Frequently, members of the public attend the meetings as do some faculty members, administrative staff and the press. The College President and the College Attorney also attend. At these meeting, the Board generally treats policy matters, expenditures, approval of consultant contracts, and audit reports, and there is also a provision for public comment. It is not at all unusual or inappropriate for Board members to be contacted by students, faculty members or the public about school matters. Joaquin M. Campo, the President and Chairman of a Tampa engineering firm, served as Board President from July, 1990 to July, 1991. He has been contacted by outsiders about matters and when that happens, he tries, as best he can, to follow up on the contact. It is his practice to respond to any personal contact and to any signed letter which, he immediately forwards to the College President for investigation. To the best of his recollection, Respondent had previously called him about something into which he made inquiry and thereafter, Respondent began to communicate with him regularly on a variety of matters. This did not annoy him at all, and in each case, he tried to get the answer to the Respondent's problem. On August 27, 1990, Mr. Campo received a letter from the Respondent complaining about comments purportedly made by President Paloumpis. If true, these allegations would be considered serious. Professor Boyle followed the first letter with phone calls and repeated additional letters, as a result of which, Mr. Campo asked him to come up with some hard evidence in support of his allegations. Campo made this request several times, and no such evidence was ever forthcoming. Finally, Campo asked the College's Auditor, Mr. Watkins, who reports directly to the Board of Trustees, to look into Boyle's allegations and report what he found. Mr. Campo chose the Auditor so there would be no chance of improper influence being asserted by anyone else. At the same time, Mr. Campo also contacted the Respondent and asked him to cooperate with Mr. Watkins. By letter dated September 13, 1990, he reiterated that request in writing. At no time did Professor Boyle indicate he would not cooperate with the Auditor. At the time he brought the Auditor in, Mr. Campo had not formed any opinion as to Boyle's allegations. Sometime later, in February, 1991, Mr. Campo received another letter from Respondent complaining about the mechanics of selection for appointment of the head of a department at the college. When he looked into these allegations, he found them to be untrue and, in fact, that that faculty member ostensibly appointed, Dr. Adams, had not been so appointed and had never applied for the position. Mr. Campo so responded to Mr. Boyle in writing and thereafter received another letter from the Respondent, dated February 22, 1991, which in a disrespectful and berating manner, scolded Mr. Campo for his reply and demanded an apology. Because this letter was incorrect and insulting, Mr. Campo advised Professor Boyle of his feelings. As it appears, however, this faculty member, Dr. Adams, was subsequently appointed Department head. Thereafter, by letter dated March 13, 1991, Mr. Boyle requested Mr. Campo resign as Chairman of the Board of trustees, citing alleged dereliction of duty and referring to nonexistent secret letters. That same day, Mr. Campo wrote to Professor Boyle and again asked him to come forward with proof to support his allegations and set a deadline of March 22, 1991 for him to do so. In writing this letter, Mr. Campo was trying to do his duty as Chairman to either prove or disprove allegations of wrongdoing and put them to rest. He got no response to the letter or any of the proof requested. All during this time, Mr. Watkins also was having his difficulties in dealing with Mr. Boyle regarding the investigation he had been requested to undertake. Immediately after being asked by Mr. Campo to look into Boyle's allegations, Watkins received a call from Mr. Boyle in which Boyle said Mr. Campo had asked him to meet with Watkins and provide the information. Boyle agreed to do so, but after several days, Watkins still had not again heard from Boyle. Though Watkins tried to contact Boyle, he found Boyle had no home phone and was only on campus at certain hours. Mr. Watkins went to the Dale Mabry campus during Boyle's office hours. When he arrived at Boyle's office, he found the door closed but he could hear voices from within. He knocked twice and a voice called out, "Who are you and what do you want?" When Watkins identified himself, Boyle opened the door, finished the phone call he was engaged in, and spoke with him. Boyle said he had not had time to collect the background information but that his letter to Mr. Campo stated the facts. When Mr. Watkins pointed out these were not facts but conclusions, Boyle agreed to get facts and said he would get back with Watkins in one week. Their agreement called for Professor Boyle to come to Watkins office with the information, but one day before the scheduled meeting, Boyle called to postpone it. Nonetheless, he showed up the next day without any independent proof, reasserted his position that his allegations spoke for themselves, and questioned Mr. Watkins' authority to conduct the inquiry. When Mr. Watkins explained his charter, Boyle dropped the subject. Mr. Boyle never did come up with any supporting proof of his allegations even though Mr. Watkins gave him several extensions of time. In fact, Boyle failed to contact Mr. Watkins again and when Watkins tried to reach him and couldn't, he again went to Boyle's office to see him. After Watkins waited for a lengthy time during which Professor Boyle dealt with students, Boyle finally stated he didn't have any time to deal with him. He stated he had been told by an unnamed party not to talk with Watkins, and left. Mr. Watkins reported to Mr. Campo both orally and in writing regarding the results of his efforts. Mr. Campo advised Mr. Watkins not to pressure Boyle too much because they really wanted the information. Finally, on November 6, 1990, Mr. Watkins again wrote to Professor Boyle asking for documentation supporting his allegations. Mr. Boyle neither responded with the documents nor requested more time, and Mr. Watkins has never received any documentation from Boyle in support of his charges. While Boyle cooperated at first, his attitude deteriorated to the point he was arrogant and uncooperative, and considering Watkins was working at the direction of the Chairman, even insubordinate. Finally, on November 19, 1990, Watkins wrote to Mr. Campo outlining the results of his efforts and the problems he encountered dealing with Professor Boyle. Thereafter, he was released from this investigation and has not, to this day, received any supplemental information from Professor Boyle. By letter dated March 27, 1991, Mr. Campo ordered Mr. Boyle to meet with him on April 9, 1991 at 2:00 PM in the College Administrative Office on Davis Island and to bring whatever support he had for the charges he had made. Mr. Campo made it clear this was not an optional meeting, and the Respondent's failure to appear would be considered to be insubordination. Nonetheless, Professor Boyle did not appear for the meeting nor did he either call in advance to seek a postponement or provide a subsequent explanation for his absence. On April 11, 1991, Mr. Campo again wrote to Mr. Boyle, pointing out the failure to appear on April 9 was insubordination, asking for an explanation in writing, and directing him to appear in person at the Administrative Office on Davis Island on April 22, 1991 at 2:00 PM. This letter also advised Boyle that if he could not make it, he was to advise Campo by phone no later than noon on April 22. Boyle neither showed up nor explained. April 9, 19, and 22, 1991 were work days when Professor Boyle could be expected to perform his duties. As Chairman of the College's Board of Trustees, Mr. Campo had the authority to direct any college employee to meet with him. His directions to Boyle to meet with him on those days were, therefore, lawful orders. Mr. Campo was present at the time and place scheduled for the meetings which he directed Professor Boyle to attend. To this day, Boyle has not explained his failure to appear as directed. Campo sought those meetings with Professor Boyle to get the facts surrounding the allegations Boyle had made. They were not designed to create a situation for which disciplinary action to get rid of Professor Boyle could be initiated. As a result of Professor Boyle's failure to appear as directed, Mr. Campo asked President Paloumpis to look into the matter to see if any action was appropriate. As a result, in June, 1991, Dr. Paloumpis recommended to the Board of Trustees that action to remove Boyle for insubordination be initiated. Mr. Campo agreed. At the open Board meeting where this matter was addressed, the Board, pursuant to discussion of the matter which had been published in advance on the regular publicized agenda, unanimously approved the recommendation to dismiss Professor Boyle. The Board meeting was publicized in advance along with the agenda, and Professor Boyle had the opportunity to appear before the Board to defend or explain his actions. He failed to do so. There is no evidence of any attempt to discharge Boyle because of his outspokenness. When Dr. Paloumpis received the copy of Professor Boyle's letter of complaint which Mr. Campo sent to him, he, also, wanted the matter looked into. At no time did he attempt to impede Watkins' investigation or, in fact, to speak with Watkins about it. As an administrator, he has been accused by others before of making bad decisions and of being unfair. He never takes such accusations personally, nor did he act on this allegation. His initiation of disciplinary action against Professor Boyle was taken at Mr. Campo's suggestion because of Boyle's insubordination. He reviewed the investigation and the succeeding failures by Boyle to meet with Mr. Campo and satisfied himself that grounds for discipline existed. Only then did he set the wheels in motion. On April 30, 1991, Dr. Paloumpis wrote to professor Boyle directing him to come to Paloumpis' office at 8:30 AM on May 3, 1991, normal business hours, to provide a doctor's certificate because Professor Boyle had a habit of calling in sick or having someone do it for him. Under the terms of the contract between the College and the union, the College has the right to have the faculty member submit to an independent medical examination under certain conditions. He also directed Boyle to contact his department head, Dr. Adams, by May 3, 1991, to set up the appointment with the doctor. Professor Boyle did not show up at either place on May 3, nor did he contact Dr. Paloumpis or anyone on his staff about it. Thereafter, on May 6, 1991, Dr. Paloumpis wrote to Professor Boyle asking for an explanation of his failure to appear as directed by him and by Mr. Campo. In this letter, he also gave Mr. Boyle an order to contact Ms. Bone, an executive assistant in Dr. Paloumpis' office to set up a time, at Professor Boyle's convenience, to meet with Paloumpis at Paloumpis' office. He also warned Professor Boyle that if he failed to appear, he, Paloumpis would recommend Dr. Boyle's suspension as a disciplinary action. Professor Boyle has never responded to this letter or complied with the directions therein. Dr. Paloumpis thereafter prepared the Petition for Dismissal and Explanation of Rights form and tried to serve them on the professor by regular US mail, by certified mail, and by process server. That copy sent by regular US mail was not returned undelivered, but the copy sent by certified mail was not accepted. The process server was able to effect service of the Petition on Professor Boyle, at his home, at 1:20 PM on June 28, 1991. It must also be noted that some of the letters to Professor Boyle which requested meeting with him were, in addition to being sent by mail, included in the envelope with his individual pay checks. When these checks were cashed, it was clear indication that Professor Boyle had received the meeting notices. None of the letters, all of which were also sent by US mail, were ever returned undelivered except for the copy of the Petition sent by certified mail. In addition to all the above, in the Fall of 1991, Dr. Paloumpis learned that several students had complained about Professor Boyle's behavior. Paloumpis received a call from the Dale Mabry campus that complaints had been received which had been put in writing and referred to the vice president in charge of that campus. When he asked what was going on, the complaints were referred to him. As a result of these complaints, Professor Boyle's supervisors recommended to Dr. Paloumpis that Boyle be placed on administrative leave because the pattern and manner of his relationship with his students indicated it would be better were he out of the classroom. Dr. Paloumpis' primary concern was for the students, many of whom wanted to drop the course they were taking from Professor Boyle. To do so, however, would be, for many of them, a financial and academic harship. Paloumpis wanted to avoid this, and as a result, Professor Boyle was relieved of his teaching duties and an adjunct professor brought in to teach the remainder of the course. This solved the students' problems and the complaints stopped. As a result of this reported aberrant classroom behavior by Professor Boyle, Dr. Paloumpis prepared the additional charges which were incorporated in the Amended Petition to Dismiss which he also submitted to the Board of Trustees. By memo dated September 23, 1991, Dr. Paloumpis notified Professor Boyle he was being placed on administrative leave with pay and that the new charges were being added to the Petition. At the same time, he notified Professor Boyle of his right to attend the Board meeting at which the additional charges were to be discussed. The charges were made an agenda item which was published and distributed. Professor Boyle did not appear at the Board meeting but was represented by counsel, Mr. Merkle. The Board heard the evidence relating to the additional charge and the presentation by Mr. Merkle on behalf of the professor. It nonetheless voted unanimously to add the new charge to the Petition for Dismissal. At no time has Professor Boyle ever given Dr. Paloumpis or any representative of the College any explanation of his allegedly aberrant classroom behavior which prompted the additional charge, save the presentation by Mr. Merkle at the Board meeting.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore, recommended that Professor Joseph P. Boyle be discharged from employment as a tenured faculty member at Hillsborough Community College for gross insubordination. RECOMMENDED this 19th day of March, 1993, in Tallahassee, Florida. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of March, 1993. COPIES FURNISHED: John M. Breckenridge, Jr., Esquire 2502 Rocky Point Road, Suite 225 Tampa, Florida 33607 Professor Joseph P. Boyle P.O. Box 327 Champlain, New York 12919 Robert W. Merkle, Esquire (Courtesy Copy) Merkle & Magri, P.A. 750 West Courtney Campbell Causeway, #1120 Tampa, Florida 33607 Martha K. Covington College Attorney Hillsborough Community College P. O. Box 31127 Tampa, Florida 33631-3127
