The Issue The issue is whether the Florida Department of Education (“the Department”) committed one or more unlawful employment practices against Petitioner (“Ms. Spradlin”) by discriminating against her based on race.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing and the entire record in this proceeding, the following Findings of Fact are made: Ms. Spradlin worked from 2006 to 2010 as a psychological specialist at a facility known as Sunland in Marianna, Florida. Ms. Spradlin is Caucasian. During a portion of the time that Ms. Spradlin was at Sunland, Tawana Gilbert worked there as a human service administrator. Ms. Gilbert is African-American. Ms. Spradlin and Ms. Gilbert did not work closely together, but they served on the same interdisciplinary team and worked with the same residents. Ms. Gilbert’s only knowledge of Ms. Spradlin was through the documentation that Ms. Spradlin submitted to the interdisciplinary team. Ms. Gilbert left Sunland in approximately November of 2009, and began working for the Department as a unit supervisor for a vocational rehabilitation services unit in Marianna, Florida. Vocational rehabilitation assists people by providing them with services that enable them to obtain and maintain gainful employment. During the time period relevant to the instant case, the Marianna unit had 10 staff members and served five counties. Of those 10 staff members, five were counselors and one was the unit supervisor. At some point after Ms. Gilbert left Sunland, Ms. Spradlin saw an advertisement for an entry level vocational rehabilitation counselor position at the Marianna unit. Ms. Spradlin applied for the position and was hired in 2010. In March or April of 2011, Ms. Gilbert invited all of her coworkers to a special event at her church. Ms. Gilbert asked her coworkers with children if their child would like to participate in a program that was to be part of the festivities. Ms. Spradlin said that her daughter was willing to participate, and Ms. Gilbert typed out the words that Ms. Spradlin’s daughter was to recite during the program. When it was time for Ms. Spradlin’s daughter to recite her part, she became nervous, and her grandmother read the part. Following this event, Ms. Spradlin asserts that Ms. Gilbert’s attitude toward her changed and that the unlawful employment practices alleged in her Charge of Discrimination began. Findings Regarding Ms. Spradlin’s Interviews for Senior Counselor Positions There were two openings for senior vocational rehabilitation counselors at the Marianna unit in October of 2012.1/ When the Department is considering applicants for a particular position, it utilizes a three-person panel to conduct interviews and score the applicants. After the interviews, the three-person panel reaches a consensus as to each applicant’s scores, and the Department uses a standardized matrix to rank each applicant. The panel for the two senior vocational rehabilitation counselor openings consisted of Allison Gill, the Department’s area supervisor; Michael Nobles, the former supervisor of the Marianna unit; and Ms. Gilbert. Ms. Gill and Mr. Nobles are Caucasian. Of the five people who interviewed for the two openings, Ramonia Robinson earned the highest score, a 72. With regard to Ms. Robinson’s qualifications, Ms. Gilbert testified as follows: Ms. Robinson, she was a current employee there. She was an entry-level counselor, had been for many, many years. She was there prior to my hiring with VR, so I was familiar with her work history. And she was very thorough, very detailed, very flexible, and very unemotionally involved with her cases. So she, in conducting her cases and case management, was awesome. And she was very knowledgeable about the questions that were being asked. She had had a long history of experience with case management, providing services to individuals with disabilities, and just adequately managing her caseload. She did very well on her interview. Ms. Spradlin received the second highest score, a 56. Keith Sutton, an outside applicant, received a score of 55. When two applicants’ scores are within one point of each other, the Department bases the ultimate hiring decision on reference checks. Ms. Gilbert contacted Mr. Sutton’s references and received positive feedback about him. As for Mr. Sutton’s qualifications, Ms. Gilbert provided the following testimony: Q: What about Mr. Sutton’s experience, resume was notable to you in the interview process? A: Well, he had his degree. It’s directly related to the field of counseling. He had a wealth of experience in the counseling field. He came to us from the Agency for Persons with Disabilities, which is Sunland, where he had a year there, and he met at least the minimum qualifications. He was very – his application was very detailed, and it identified precisely his experience based on his ability to – or his experience with providing counseling, providing services for those with disabilities. And he had a long history from where he had previously worked in the field of counseling. Q: Okay, so Mr. Sutton achieved a Master’s in Counseling in 2011, is that correct, according to his application? A: Yes. Q: And that’s directly related to the position; is that correct? A: Yes, that’s correct. Q: And he had experience as a master’s level therapist? A: Yes. Q: Is that accurate, according to the application? A: Yes. He worked for Florida Therapy as a master’s level therapist, where he was expected to provide counseling, psychotherapy to children, adults and their families, but doing so on an independent basis. That demonstrated he was very flexible, detailed oriented and [had] the ability to function independently. Because she was Ms. Spradlin’s supervisor at the time, Ms. Gilbert acted as her reference and did not recommend her for a senior counselor position. In explaining her reasoning, Ms. Gilbert testified that: Ms. Spradlin was difficult to work with and she was very negative. She had several participant complaints during the span of [] that year. In her first year coming in, she was very challenging, she did not want to accept constructive criticism from me as the unit supervisor. She did not want very – she wanted very little feedback from me based on her performance. Several participant complaints, calling me directly, contacting the ombudsman, faxing me complaints based on their interaction with Ms. Spradlin, how they felt that they were being treated unfairly, they did not agree with her tone from time to time. She was not at all culturally sensitive to some of our participants. She was insubordinate. She would – there were times she would just leave the unit because things – conditions were unfavorable to her. Ms. Gilbert submitted her recommendation to the Department’s area director, and Mr. Sutton was ultimately offered a senior counselor position. Mr. Sutton is currently the supervisor of the Marianna unit. There is no persuasive evidence that Ms. Spradlin was not promoted because of her race or any animus from Ms. Gilbert. The interview panel, consisting of two Caucasians, had legitimate, nondiscriminatory grounds for concluding that Ms. Robinson and Mr. Sutton were more qualified for the openings. In short, the greater weight of the evidence demonstrates that there was no unlawful employment practice associated with the Department’s selection of applicants for the two openings discussed above. In May of 2016, Ms. Spradlin applied for another senior counselor position in the Marianna unit. The interview panel for this opening consisted of Ms. Gilbert and two other Department employees, Evelyn Langmaid and Rebecca Stevens. Ms. Langmaid and Ms. Stevens are Caucasian. Ms. Gilbert did not supervise Ms. Langmaid or Ms. Stevens, and she did not attempt to influence their decision-making. Georgia Britt received the highest score from the interview panel and was offered the senior counselor position. Ms. Langmaid described Ms. Britt’s interview as follows: She just came in and every answer we’d or every question that we gave her she was just right on with the answers and [was] hitting the points on the – because we have sort of like a little sheet that we can look for certain points that we’re looking for answers, and she was just right on every point, and was very, very knowledgeable of what was going on. Ms. Spradlin had obtained a certified rehabilitation counseling certification in October of 2014, and Ms. Britt lacked that certification. However, Ms. Britt’s other credentials bolstered her application. For instance, she has a bachelor’s degree in elementary and special education and a master’s degree in counseling. Ms. Britt also had relevant work experience. When she applied for the senior counselor position, Ms. Britt was employed at Sunland as a behavior specialist working with adults with developmental disabilities. Ms. Britt wrote in her application that she had been able to “work with all different types of individuals at all intellectual levels” via her position at Sunland. Prior to working at Sunland, Ms. Britt had worked in a children’s psychiatric hospital in Dothan, Alabama. That position also gave her an opportunity to work with individuals from diverse backgrounds. Ms. Britt wrote on her application that her position at the hospital required her to engage in some counseling and that she had to use counseling skills in order to obtain psychiatric histories and other information. Ms. Britt’s interview bolstered her application. According to Ms. Langmaid, Ms. Britt “blew it out of the water. She was fantastic on the interview.” Ms. Gilbert was also very complimentary of Ms. Britt’s interview: Q: What about Ms. Britt stood out to you and the panel? A: Her ability to respond to the questions as they were being asked. At that time, we were transitioning to where we were asking more emotional [intelligence] questions where – to identify a counselor’s ability to emotionally manage cases and refrain from being emotionally involved with that case. So she answered the questions. It’s on ones that can give a thorough answer based on the circumstance that occurred, the actions that took place and the results of the question. Q: Okay. A: She was really, really thorough with her answers. There is no persuasive evidence that Ms. Spradlin did not receive the promotion because of her race or due to any animus from Ms. Gilbert. The interview panel, consisting of two Caucasians, had legitimate, nondiscriminatory grounds for concluding Ms. Britt was more qualified for the opening. In short, the greater weight of the evidence demonstrates that there was no unlawful employment practice associated with the Department’s selection of Ms. Britt. Findings Regarding Ms. Spradlin’s Hostile Work Environment Allegations Ms. Spradlin made several allegations during the final hearing that she was subjected to a hostile work environment during her time with the Marianna unit.2/ For example, in October of 2010, Ms. Spradlin exposed at least part of her posterior to a coworker in the Marianna unit in order to demonstrate the severity of a sunburn. Ms. Gilbert did not learn of that incident until another incident was reported to her on May 2, 2011. That day, Ms. Spradlin was seated in an office within the Marianna unit when a female coworker got very close to Ms. Spradlin and “twerked” in her face. Ms. Spradlin states that she placed her hands on the coworkers posterior and playfully pushed her away. However, the coworker reported to Ms. Gilbert that Ms. Spradlin had pinched her posterior. Upon learning of both incidents, Ms. Gilbert discussed them with Ms. Spradlin and conferred with the Department’s labor relations unit on formulating a proper course of action. With input from the labor relations unit, Ms. Gilbert issued a counseling memorandum to Ms. Spradlin on October 4, 2011.3/ The counseling memorandum4/ read in pertinent part as follows: You are being issued a Counseling Memorandum for your violation of Rule 60L- 36.005(2)(f)(1), Florida Administrative Code (F.A.C.), Conduct unbecoming a public employee. On October 12, 2010, you signed the Department’s Acknowledgement Form stating you received copies of the policies and rules of the Department. Please be aware that you are expected to abide by all Standards of Conduct as stated in 60L- 36.005, F.A.C. On May 2, 2011, you violated the following rule and policy: Rule 60L-36.005(2)(f)(1), F.A.C., requires that “Employees shall conduct themselves, on and off the job, in a manner that will not bring discredit or embarrassment to the state. Employees shall be courteous, considerate, respectful, and prompt in dealing with and serving the public and co-workers.” On May 2, 2011, it was reported by one employee that you pulled your pants down exposing your buttocks and “mooned” that employee. Another employee informed me that on that same day you pinched her on her buttocks. After I was told about these incidents that day, I counseled you and informed you that this was inappropriate behavior and it was explained that your actions were unacceptable. This type of conduct is not conducive to a satisfactory work environment. Your conduct has adversely impacted the morale and efficiency of your unit and the Department, is detrimental to the best interests of the state and Department, and adversely affects your effectiveness with the Department, as well as your ability to continue to perform your job. This behavior must cease immediately. Should you continue conduct unbecoming a public employee, disciplinary actions, up to and including dismissal may be taken. Ms. Spradlin signed the counseling memorandum on October 4, 2011, and added the following comments: These two incidents happened on [sic] different persons. The incident w/ “mooning” was with [a] coworker after I incurred a severe sunburn. It was done only to show my burns not to offend her. She sobbed – I was not wearing pants – skirt instead. On the second occasion w/co-worker E.R. she put her buttocks in my face, playing around, & I pinched it as if to express my willingness to play as well. It was provoked – not done in an offensive manner. I understand that this type of behavior is not accepted in my work environment. They were done in a playful uplifting manner, not intentional. However, I will refrain from this behavior as I have obviously offended my colleagues. Another allegation of disparate treatment concerned an incident with a Department client named B.H., who Ms. Spradlin assisted with enrolling in nursing school. B.H. arrived at the Marianna unit one day without an appointment and reported that he wanted to do something other than nursing. Ms. Spradlin asserts that B.H. got aggressive when his requested changes could not be accomplished immediately. Ms. Spradlin further asserts that she became afraid, threatened to call 9-1-1, and managed to get past B.H. and into the hallway outside her office. Ms. Gilbert heard the commotion and called the police. By the time the police arrived at the Marianna unit, B.H. was very calm, and Ms. Gilbert concluded there had been no need to call law enforcement. While Ms. Spradlin asserts that she became an object of ridicule in the Marianna office for overreacting, Ms. Gilbert asserts that she was ridiculed for failing to give the address of the Marianna office when she called 9-1-1. As another example of disparate treatment, Ms. Spradlin cites an incident on November 14, 2013, involving a cigarette butt. Ms. Spradlin was in Ms. Gilbert’s office and dropped a cigarette butt into a trashcan. According to Ms. Spradlin, Ms. Gilbert demanded that she remove the cigarette butt and forced Ms. Spradlin to search through used tissues for the cigarette butt. Ms. Gilbert acknowledged that she asked Ms. Spradlin to remove the cigarette butt from the trashcan, but she credibly denied berating Ms. Spradlin or yelling at her. According to Ms. Gilbert, Ms. Spradlin was able to quickly remove the butt from the trashcan and was not upset about having to do so. Ms. Spradlin made several other allegations about how Ms. Gilbert gave African-American employees in the Marianna unit preferential treatment. For example, Ms. Spradlin alleges that she was required to handle more cases and incur more travel than her African-American coworkers. With regard to her travel reimbursements, Ms. Spradlin alleged that Ms. Gilbert refused to account for all the miles she traveled. Ms. Spradlin further asserts that Ms. Gilbert subjected her to disparate treatment by requiring her to maintain more documentation of her daily activities, inundating her with e-mails inquiring about the status of her work, and being less lenient regarding Ms. Spradlin’s use of flex and leave time. Ms. Gilbert testified that she has never denied a request for annual leave and that she approved the majority of Ms. Spradlin’s requests for flex time, even though Ms. Spradlin did not follow the proper procedure for making such requests. As for the other allegations mentioned above, Ms. Gilbert credibly testified that she did not subject Ms. Spradlin to any disparate treatment. Finally, Ms. Spradlin alleges that Ms. Gilbert unfairly administered a system by which counselors within the Marianna unit shared their successful cases with African- American counselors who had fewer successful cases. This system was implemented because counselors within the Marianna unit were expected to have a certain number of successful cases. Ms. Gilbert credibly denied that the system was administered unfairly: Q: Ms. Gilbert, do you ever ask counselors to donate their successful cases or case numbers to other counselor? A: I never asked counselors specifically to do that. I did discuss it with the unit, with our team as an option. Q: Okay, and why would that be an option they may want to do? A: Well, the way Vocational Rehabilitation operates is a person has to be on their job a minimum – a minimum of three months, okay, 90 days, to consider that person as successfully rehabilitated. And that was a measurement. That was an expectation on each counselor’s performance evaluation, that they had to get so many successful rehabs within one year. So someone that’s being hired and coming to Vocational Rehabilitation in the middle of the year, they don’t have that opportunity to monitor that person for 90 days, if they don’t already have someone that’s in that employment status ready to begin monitoring. So it’s difficult. But I did not want that to be a negative reflection of a counselor that’s really trying and that’s working their caseload and trying to get their successful rehabs. So I would ask counselors once they’ve received all of their rehabs and they close enough people successfully that allows them to get the most maximum score that they can get on their evaluation, I would ask them if they wanted to, share those rehabs with someone that’s probably a new counselor or that’s just having a difficult time with obtaining their successful rehabs. Q: Okay. And so Mr. Sutton’s first year, might he have received some successful numbers donated to him from other counselors? A: That is a possibility. Q: Okay. Did Ms. Spradlin ever receive any successful numbers donated to her when she had a lower number? A: Yes. * * * Q: Okay. And so that number of successes or successful rehabilitations is important to counselors? A: Absolutely. Q: Because they are – are they evaluated on that each year in their yearly performance evaluation? A: Yes. Each level of counselor, if you’re an entry-level counselor, your first year you may be expected to get five. Those numbers are prorated. So the cutoff period is last business day of June, so if you have a new counselor that starts in February or March, they’re at a disadvantage, they don’t have the time. Time works against them. But if they are involved with their cases and they are trying to work their cases, I felt that it was only reasonable to assist them. * * * Q: Okay, so you said that Ms. Spradlin would have received a donation of successful cases maybe early on in her career? A: Yes. Q: Did she donate cases once she became a more proficient counselor? A: I’m pretty sure she did. Q: And did you specifically ask her to donate cases to any particular employee? A: No. Ms. Spradlin resigned from the Department on August 10, 2016. There is no sufficiently persuasive evidence to support Ms. Spradlin’s disparate treatment claims. The greater weight of the evidence demonstrates that Ms. Spradlin was not subjected to any disparate treatment during her tenure in the Marianna unit.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order dismissing Petitioner’s Petition for Relief. DONE AND ENTERED this 24th day of July 2018, in Tallahassee, Leon County, Florida. S G. W. CHISENHALL 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 24th day of July 2018.
The Issue The issues to be resolved in this proceeding concern whether the Petitioner was subjected to discrimination on account of her age by her termination by the Respondent, Episcopal Children's Services.
Findings Of Fact The Petitioner was born on July 25, 1940. She had been employed with the federally funded Head Start Program in Bradford County, Florida for over 30 years. In 1996, the contract to operate the Head Start Program in Bradford County was submitted for competitive bids. The Respondent Agency made a bid for the contract and was awarded the contract. The Respondent begin operating the Head Start Program in the fall of 1996. The Petitioner thereupon applied for employment with the Respondent on September 24, 1996. She was hired by the Respondent in the position of Lead Teacher. As Lead Teacher she had the responsibility to supervise other teachers at the Head Start Center in Starke, Bradford County, Florida. Her job description included as a part of her responsibilities: To supervise the day-to-day operations of the center assigned during working hours. . . . 7. To directly supervise the teaching staff at the assigned center. As lead teacher, the Petitioner received a starting compensation of $16,978.00, while other teachers received a starting compensation of $15,260.00 per year. In addition to receiving a higher rate of compensation, the Petitioner would approve the daily lesson plans posted by other teachers. The other teachers submitted their time sheets to the Petitioner. The other teachers also informed the Petitioner when they were going to be absent and the Petitioner would arrange for substitutes to replace them. The other teachers would provide work requests regarding their classrooms to the Petitioner for appropriate handling. On June 3, 1997, personnel of the Head Start Center in Starke took the children enrolled at the center on a field trip to the movie theatre in Starke. After the Petitioner and other teachers, had left the Center, a child was discovered unattended in one of the classrooms at the Center. The employee who discovered the child brought the child to Alise Watson at the Center. Ms. Watson was the social worker at the Center at that time. Ms. Watson brought the child with her to the movie theatre and reported the incident to the Petitioner, because the Petitioner was lead teacher. Under the Respondent's policy, this incident was one which should be reported, both to the Respondent's Jacksonville Office and to the Florida Abuse and Neglect Hotline telephone line. Ms. Jenkins did not ask Ms. Watson if the incident had been reported, either to the Respondent's central office or to the Florida Abuse Hotline. Ms. Jenkins had received copies of the Respondent's policies regarding reporting incidents of abuse or neglect and acknowledged at the hearing that the incident was one which was required to be reported. On June 4, 1997, Ms. Lenora Gregory, the Respondent's Head Start Director, learned of the June 3rd incident. On that date she met with the teacher in whose classroom the child had been left and that teacher's assistant. After interviewing the teacher and her assistant, Ms. Gregory and the Respondent recommended to the Head Start Policy Council that the teacher and her assistant be terminated because of this incident. Under the Head Start Program, the Respondent has the authority to recommend termination of a Head Start employee, but only the Head Start Policy Council has the authority to actually terminate an employee. The Head Start Policy Council accepted the Respondent's recommendation and terminated the employment of the classroom teacher and the teacher's assistant. The Respondent investigated the Petitioner's responsibility for the June 3, 1997, incident as well. The Respondent's policy placed the responsibility for reporting the incident on the lead teacher: The person noticing or suspecting abuse and/or neglect must immediately notify the lead teacher of the center. If she is unavailable, notify the secretary or social worker. They will notify the Child Abuse Registry at 1-800-342-9152. Failure to do so carries up to a $500.00 fine and/or 60 days in jail. Ms. Lenora Gregory and Dr. Susan Wilkinson, the Respondent's chief executive officer, requested that the Petitioner meet with them to discuss the June 3, 1997, incident. The Head Start Policy Council, at the request of Dr. Wilkinson, authorized Dr. Wilkinson to offer the Petitioner the opportunity to resign or retire. The alternative would be a recommendation by the Respondent to the Policy Council that the Petitioner's employment be terminated. On August 19, 1997, a meeting was held to discuss the Petitioner's employment with the Respondent. The Petitioner was present with her attorney, as was Dr. Wilkinson, and Ms. Gregory. The June 3, 1997, incident was discussed. Dr. Wilkinson asked the Petitioner how long she had been employed with the Head Start Program and the Petitioner responded that she had been employed for 30 years. Dr. Wilkinson then offered the Petitioner an opportunity to resign or retire as a face-saving measure for the Petitioner. Dr. Wilkinson told the Petitioner and her attorney that if she did not resign or retire the alternative would be termination. The Petitioner decided to neither resign nor retire and the Respondent recommended her termination. That recommendation was accepted by the Head Start Policy Council. The reason for the termination was the Petitioner's responsibility for the June 3, 1997, incident, both failing to report the incident, as required of the lead teacher, and failing to take appropriate steps to avoid the incident in her role as lead teacher and overall supervisor of the Center. The Petitioner contends that she was not "available" and that therefore under the Respondent's policy, it became the duty of Alise Watson, as social worker, to report the incident. Ms. Watson did not report the incident. No disciplinary action was taken against Ms. Watson. On August 26, 1998, the Equal Employment Opportunity Commission issued its notice of dismissal and a "right to sue" to the Petitioner, being unable to conclude that there had been a violation of the law.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore,
The Issue The issue is whether Petitioner has just cause to terminate Respondent's employment on grounds alleged in the Civil Service Notice of Disciplinary Action of May 10, 2000.
Findings Of Fact At all times material to this proceeding, Petitioner employed Respondent in Petitioner's maintenance department as a Carpenter I. Respondent was a non-probationary educational support employee as defined in Section 1012.40, Florida Statutes (2003), which is substantially similar to Section 231.3605, Florida Statutes (2001), and its predecessors. In October 1995, Respondent's fishing boat collided with a commercial barge. As a result of the accident, Respondent's father and uncle were killed and Respondent's son suffered serious bodily injury. Respondent had a history of poor attendance at work. Sometime prior to October 1998, Respondent's supervisor counseled him and recommended discipline due to unexcused and excessive absences from work. Respondent was arrested in October 1998 as the result of the boating accident. Respondent initially was charged with one count each of vessel homicide, culpable negligence, and boating under the influence (BUI) severe bodily injury, and two counts of manslaughter. On April 28, 2000, a jury found Respondent guilty as charged. It is undisputed that Respondent was absent from work without authorization or approved leave from April 17, 2000 through May 17, 2000. Petitioner terminated his employment effective May 17, 2000. Respondent was sentenced on August 22, 2000, for the following offenses: causing serious bodily injury to another, culpable negligence in the death of another, vessel homicide, and two counts of BUI manslaughter. On appeal, some of Respondent's felony convictions were discharged. However, the Court affirmed Respondent's BUI manslaughter convictions. See Ronald R. Cardenas, Jr. v. State of Florida, 816 So. 2d 724 (Fla. 1st DCA 2002). The court in Ronald R. Cardenas, Jr. v. State of Florida, 816 So. 2d 724 (Fla. 1st DCA 2002), certified a question of great public importance involving a jury instruction to the Florida Supreme Court. See Ronald R. Cardenas, Jr. v. State of Florida, Case No. SC02-1264, Rev.gr. 832 So. 2d 103 (Table) (Fla. November 19, 2002). At the time of the hearing, the Florida Supreme Court continued to have jurisdiction over Respondent's criminal case. Therefore, Respondent's convictions for BUI manslaughter remain in effect. Petitioner's Rule 2.24 provides that personnel absent from work without approved leave shall forfeit compensation and be subject to discipline, including termination. Unavailability for work due to incarceration does not constitute a basis for approved leave and is an unauthorized absence.
Recommendation Based on the forgoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Petitioner enter a final order terminating Respondent's employment. DONE AND ENTERED this 2nd day of March, 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 2nd day of March, 2004. COPIES FURNISHED: Ron Cardenas Department of Corrections No. 202263 Reception and Medical Center Post Office Box 628 Lake Butler, Florida 32054 Joseph L. Hammons, Esquire Hammons, Longoria & Whittaker, P.A. 17 West Cervantes Street Pensacola, Florida 32501-3125 Jim Paul, Superintendent Escambia County School Board 215 West Garden Street Pensacola, Florida 32502 Honorable Jim Horne Commissioner of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 323299-0400 Daniel J. Woodring, General Counsel Department of Education 325 West Gaines Street, Room 1244 Tallahassee, Florida 32399-0400
The Issue Whether Respondent violated the Florida Civil Rights Act of 1992, as alleged in the Employment Complaint of Discrimination filed by Petitioner on February 20, 2008.
Findings Of Fact Petitioner is an African-American female who was hired by Respondent on August 2, 2004, as the Program Director of Respondent’s Substance Abuse Treatment Program located at Lancaster Correctional Institution (LCI) in Trenton, Florida. Respondent, Civigenics Community Education Centers (Civigenics), is an employer within the meaning of the Florida Civil Rights Act. Civigenics is a provider of offender in- prison treatment services. Under contracts with the Florida Department of Corrections (DOC), Respondent provides substance abuse programs designed to reduce recidivism of inmates. DOC has contracts with various providers throughout Florida to provide such substance abuse services in its correctional facilities. At the time Petitioner was hired by Respondent as the Program Director at LCI, that program was one of 11 of Respondent’s programs under contract with DOC. These 11 programs were under the direction of Michael Walker, State Director for Respondent. Respondent provides treatment services under two types of programs: Modality 1 and Modality 2. Modality 1 is an intensive outpatient program for inmates. Inmates in a Modality 1 program are involved with the program for half a day, then have a work assignment the other half of the day. A modality 2 program is a residential program in which the inmates are involved in the program all day long, six-to-seven days a week. Of Respondent’s 11 programs, only two are Modality 2 programs. One of the Modality 2 programs is at Gainesville Correctional Institution (GCI). At the time Petitioner was employed by Respondent as Program Director of the program at LCI, the program was a Modality I program. Dan Eberline is a correctional program administrator for DOC. Mr. Eberline’s responsibilities include contract management, oversight, auditing and follow-up as the liaison between DOC and Respondent. Mr. Eberline has been employed with DOC for 20 years and worked with Petitioner since 2001, when she was clinical director for a Modality 2 program at another private company. Under Respondent’s contract with DOC, Mr. Eberline must approve of the hiring of all Program Directors. He interviewed Petitioner and a white male for the LCI position, and approved of Petitioner’s hiring in 2004. When hired, she replaced a white male as the Program Director at LCI. Petitioner was already in the Program Director position when Mr. Walker became State Director of Respondent in 2005. Of the 11 Program Directors, six were women of which three were African-American women. Two of the African-American women were hired by Mr. Walker. Petitioner holds a bachelor’s degree from the University of Florida in sociology, and a Master of Arts in Addictive Disorders from the Breining Institute, which is a distance-learning program under the Florida Certification Board. She is a Certified Addictions Professional from the Certification Board for Addiction Professionals of Florida and is a member of the Addiction Advisory Board. At any given time, approximately 70 inmates were enrolled in the program at LCI. The inmates at LCI were youthful offenders, ranging from 18-to-24 years old. As Program Director at LCI, Petitioner supervised a staff of three counselors and an administrative assistant. As Program Director, Petitioner was responsible for ensuring that her staff was properly trained in group therapy, individual therapy, and for making psychosocial assessments of the inmates under their care. She was also responsible for ensuring the accuracy of the database and of certain reports that the program provided to DOC. During the time period in question, there were two contracts between Respondent and DOC. The first contract was in effect from October 2001 through October 2006. The second contract became effective October 2006, with an ending date of September 30, 2011. Beginning in the year 2000, DOC standardized all of Respondent’s programs as to the performance measures used, the maintenance of files, reports, and training. According to Mr. Eberline, his fundamental role was to monitor the contract and then to compare the contract with the delivery of services. To measure the effectiveness of Respondent’s Modality and Modality 2 programs, Mr. Eberline conducted audits of each program’s files and reports. He monitored each program in routine and special site visits, and in a comprehensive annual audit, to ensure that each program was meeting contract standards. Mr. Eberline would, in turn, provide reports of those audits to his supervisor, Kim Riley. The reports are provided to the Florida Legislature for purposes of receiving funding. The most critical standard each program must meet is a successful completion rate for inmates who participate in Respondent’s programs. This standard of measure is used by DOC to determine the effectiveness of treatment. In the second contract (beginning October 2006), the successful completion rate was specified at 80 percent for Modality 1 programs and 60 percent for Modality 2 programs. The first contract (ending October 2006) did not specify a completion rate of 80 percent. However, the preponderance of the evidence established that while not codified in the earlier contract, there was nonetheless an expectation that each Modality 1 program, such as at LCI, would meet an 80 percent successful completion rate standard. An 80 percent successful completion rate was considered standard in the industry, discussed at staff meetings, was part of a program director’s training, and referenced in Mr. Eberline’s program reports. The completion rate standard measures the number of inmates enrolled in a Modality 1 program who completed the program after a recommendation from the clinical staff. These inmates were discharged or coded as having completed the treatment program. Not all inmates, however, complete the program for a number of reasons. For example, an inmate may be unable to participate in and have to withdraw from the program because he must go to court, for a medical or mental health reason, or because the inmate must go into protective confinement. Additionally, an inmate may receive a Disciplinary Report (DR) from prison staff and be discharged from the program for behavior that is not considered “related to the program.” That is, the DR is for behavior that the treatment program is not designed to impact. The inmate is considered to be administratively discharged (coded ADM) if the program director determines the behavior can be further addressed through the program. Conversely, an inmate may receive a DR for behavior that is considered program related (e.g., behavior that the treatment program is designed to impact) such as a positive drug screen, a threat of violence, or one of the other “cardinal” rule violations. Also, an inmate may be unsuccessfully discharged for other behaviors considered “major” rule violations such as sexually acting out, assault, fighting, threats of violence, or breaking confidentiality of inmates. The inmate would receive an unsuccessful discharge from the program (coded UNS) because the program has not been successful in impacting the inmate’s behavior. DOC electronically maintains information regarding DRs issued to inmates on the Offender Based Information System (OBIS). The Program Director for each program reviews the information on OBIS, in a read-only format, about an inmate’s DRs which states the nature of the DR, and what type of behavior or conduct was involved. The Program Director can read the DR as well as the narrative of the DOC employee who issued the DR, to find out what actually occurred. The determination as to whether a disciplinary infraction which results in an inmate’s dismissal from the program is or is not related to the program and properly coded as an ADM or UNS discharge, is the responsibility of the Program Director. It is also the Program Director’s responsibility to ensure that the reports used to calculate the completion and discharge rate for inmates enrolled in the program are correct. While the data reflecting the coding determination might be entered by support personnel, only the Program Director can make the coding determination because of his or her training and certification. According to Mr. Eberline, it would be unethical to leave such a determination to a person who is neither qualified nor licensed to make that decision. Every month, a report which lists those inmates who have successfully completed the program, and those inmates who received an ADM discharge or a UNS discharge, is submitted to DOC. This report, called a “PPC41” is used to calculate the completion rate. The Program Director must sign off on the PPC41 before it is sent to Mr. Walker, and in turn to Mr. Eberline. It is the Program Director’s responsibility to ensure that the document is sent and that the information contained in the PPC41 is accurate. At hearing, Petitioner testified that her administrative assistant was the person who made the coding determinations, and entered them into the computer system. Petitioner signed off on these reports, but did not make an independent review of their content. She simply verified that they were being sent to Mr. Walker and Mr. Eberline. Prior to the hearing, Mr. Walker and Mr. Eberline were not aware that Petitioner was allowing clerical staff to determine the codes on the PPC41s. Both Mr. Walker and Mr. Eberline expressed concern and disapproval that Petitioner did not review the PPC41s for content and that the coding was done by her assistant. Since this information was revealed to them during the hearing, it could not have been the basis for the employment actions taken by Respondent. It may, however, explain some of the errors which will be discussed. Under the formula utilized by Respondent and DOC to measure the completion rate, the number of inmates who successfully complete the program are first identified. From that number, the number of inmates who are coded as ADM (administrative discharge) are factored out or subtracted. That number is then compared to the number of inmates who are coded as UNS (unsuccessful discharge). These two numbers are then compared to the number of inmates who have successfully completed the program. The administrative discharges do not impair or lower a program’s completion rate. The more discharges that are coded as ADMs, the higher the program’s completion rate. For that reason, if an inmate’s discharge is improperly or incorrectly coded as an ADM rather than UNS, an incorrect completion rate will result. The Program Director submits the monthly PPC41s to DOC throughout the course of the fiscal year. These monthly reports provide a monthly snapshot as to whether or not a program is meeting the contractual standard. The monthly report may identify the need to intensify services or change the format by which the program is providing treatment to inmates to better impact their behavior. Consequently, the completion rate may vary from month to month, with a final completion rate calculated at the end of each fiscal year. At the end of each fiscal year, DOC tabulates all of the discharge information reflected in each program’s PPC41s, audits the discharge codes, and calculates a final completion rate for all programs. These calculations are made in Tallahassee without involvement of Mr. Walker or Mr. Eberline, and without any knowledge of the identity of the particular program director at any particular facility. In April 2005, an annual comprehensive audit of the program at LCI was conducted by Mr. Eberline. LCI’s completion rate was determined to be 54.4 percent. Mr. Eberline’s monitoring report noted, “This is a low completion rate when compared to similar Modality I programs. The youthful offender inmates are a difficult population to work with, however, a formal plan to increase the completion rate is encouraged.” LCI was issued its first Corrective Action Plan (CAP) to address several items. On June 14, 2005, Mr. Eberline determined that all elements of the CAP were met. In April 2006, Mr. Eberline conducted the annual comprehensive audit of the program at LCI. The audit revealed that the completion rate for the program had gone down from 54.4 percent to 52 percent. While no CAP was required, Mr. Eberline’s report included the following: “The past twelve month program completion rate is 52 percent adjusted for administrative discharges as compared to 54.4 percent last year. It is recommended that an internal institutional review be initiated to provide suggestions on how to improve this program completion rate.” In response to these comments, Mr. Walker convened an institutional review of this situation. He brought together security, classification, administrative staff, Petitioner and himself in an effort to determine how Respondent could more positively impact the completion rate in the program at LCI. In December 2006, Mr. Eberline conducted a routine follow-up visit to LCI. His report of the visit notes that the Warden was concerned with the program completion rate of 48 percent for fiscal year 2005-2006.2/ His report also noted that because there were deficiencies in basic file format, additional training was required to ensure that “staff is following acceptable file format.” As a result of those comments, Mr. Walker discussed with Petitioner file format and the proper order of documents in the files. Mr. Eberline conducted a routine site visit at LCI in February 2007. He was concerned that LCI’s completion rate had dramatically increased from 48 percent to over 80 percent in just five months. Mr. Eberline, Mr. Walker, and the Assistant Warden were all concerned with this sudden dramatic increase in completion rates. Mr. Eberline suspected that the ADM coding might have been overused resulting in a manipulation of the code so as to artificially increase the completion rate of the program. Using the OBIS system, Mr. Eberline, Mr. Walker, and Petitioner reviewed and analyzed the coding determinations for those files, in excess of 40, in which a clinical decision had to have been made. Once the discharge codes were re-evaluated, the completion rate dropped to 60 percent. It was at this time that Mr. Eberline brought up concerns to Mr. Walker about Petitioner’s performance in regard to program completion rates, and the need for a change in leadership. Mr. Eberline was being questioned by his supervisor at DOC about steps he was taking to address the low completion rate at LCI. In turn, Mr. Walker was hearing these same questions and concerns from Mr. Eberline. At Mr. Eberline’s request, Mr. Walker wrote a second CAP which was put in place on February 20, 2007. This CAP was directed at Petitioner and concerned “client discharges being inappropriately coded as ADM 83.” Mr. Eberline conducted a follow-up review on May 21, 2007. His report concluded that training had been completed with staff and, as a result, the assignment of proper discharge codes was being used and reported. His report notes that the completion rates would continue to be monitored. On the same date, Mr. Eberline conducted a comprehensive, annual audit of Lancaster. The annual audit covered nine months from July 1, 2006, through April 14, 2007. Annual audits did not necessarily coincide with the fiscal year (July 1 through June 30). During this audit, it was determined that the completion rate at LCI was 67.4 percent at that point in the fiscal year. The completion rate for fiscal year 2006- 2007 for LCI was calculated by DOC to be 65.2 percent. At that point, the 80 percent standard had been codified in the contract between Respondent and DOC. Mr. Eberline recommended in his audit report that “continued effort be focused on improving the completion rate up to and exceeding the performance measure specified in the contract.” In April 2007, Civigenics was bought by Community Education Centers. On May 4, 2007, a meeting was held by Mr. Eberline and Mr. Walker of all Program Directors, including Petitioner. At this meeting, Mr. Eberline discussed data entry concerns and completion rates. Mr. Eberline expressed his increasing concern about the overuse of administrative discharge codes. He also informed Mr. Walker that the contract was in jeopardy because of the low completion rate. In July 2007, Mr. Walker believed that the program at LCI would not reach the contractual standard of 80 percent. He felt that 70 percent was “reachable.” He approached Mr. Eberline, who informed him that the matter would have to be addressed to Kim Riley, Chief of the Bureau of Substance Abuse Programs at DOC. Mr. Walker then wrote a letter to Ms. Riley, requesting an adjustment in the contract performance measure for LCI to be reduced from 80 percent to 70 percent. The letter stated in part: This program provides services to a male Youthful Offender population which has a high degree of need for confinement for the safety and security of the institution. We wish to request an adjustment of 10% which would then require that we maintain a program completion rate of at least 70% within this program servicing this special population. Mr. Walker had never made a similar request for any of the other programs under his supervision. Petitioner was aware of Mr. Walker’s request to lower the standard. On July 16, 2007, a special meeting was convened at LCI to discuss continuing concerns about the program’s completion rate. The meeting was attended by the prison warden and other prison administrators, Mr. Walker, Mr. Eberline, Petitioner and one of her staff. Mr. Eberline made it clear that since the completion rate was directly tied to legislative funding, the program at LCI was in jeopardy of being shut down. Following the special meeting, Mr. Eberline wrote a report which read in pertinent part: The special needs of the youthful offender inmate being served by the substance abuse modality I program were discussed. Disciplinary action resulting from inmate behavior issues was determined to be the primary reason for an inmate’s unsuccessful discharge. The inmate’s resistance to treatment was also a contributing factor. The number of low ranking mandatory inmates available for enrollment was discussed and will be reviewed for remedy. All were in agreement that little could be done to impact the institution’s disciplinary system dealing with enrolled inmate’s behavior issues. It is recommended that the program director and staff review options on how to impact program participant’s behavior through a more intensive treatment regiment. The program is requested to review and restructure the readiness group service delivery to identify motivated inmates for program enrollment. A (CAP) Corrective Action Plan will be required to address these concerns and recommendations. The CAP shall be submitted on or before August 13, 2007. Mr. Walker sent an e-mail to Petitioner instructing her as follows: “In addition to your regular end of the month PPC 41 report, please order an additional PPC 41 report which covers your program components from July 1, 2006 through June 30, 2007. Ensure that all data is accurate. " In response, Petitioner created a chart in which she calculated the completion rate to be 84.10 percent for July 2006 to June 2007. This conflicts with the completion rate calculated by DOC which shows a 65.2 percent for the same time period. The preponderance of the evidence indicates that Petitioner’s calculation of a completion rate of 84.10 percent is inaccurate. The completion rates for the program at LCI as calculated by DOC were 47.7 percent for 2005-2006 and 65.2 percent for 2006-2007. Mr. Walker began receiving criticism from Mr. Eberline and Mr. Walker’s supervisor, Ms. Worthington, about the low completion rate at LCI. He was told that if he was not able to increase the completion rate at LCI, that they, DOC, would find someone who would. In early September 2007, Mr. Eberline conducted a routine visit to LCI and again found miscoding errors. Mr. Walker verbally informed Petitioner that staff performance ratings would be reviewed and would be associated with meeting the 70 percent completion rate as specified in the contract and that, should this standard not be met, staff would be placed on probationary status and additional corrective actions taken. This admonition was contained in writing in the CAP that Mr. Walker prepared in early September. At some point between early September and early October, Mr. Eberline recommended to Mr. Walker that Petitioner be removed as Program Director because of the program’s consistent lack of meeting the performance standards, the need for multiple CAPs, and miscoding issues. Mr. Walker discussed this with his supervisor, Ms. Worthington. He recommended that Petitioner not be terminated. There were two open counselor positions, one of which was located in Gainesville. Mr. Walker offered Petitioner a demotion to a counselor position and made an effort to keep her salary as high as possible. Mr. Walker had to get approval from Mr. Eberline for this transfer; Mr. Eberline reluctantly approved the transfer. Ms. Worthington agreed with Mr. Walker’s recommendation. On October 4, 2007, Petitioner was removed as Program Director and replaced by Vernon Burgess, a white male, who was at that time the Program Director at GCI. The program at LCI was still under the CAP, which was ultimately successfully completed in November 2007. On November 19, 2007, the program at LCI was closed. When the program at LCI closed, Mr. Burgess resumed his former position as Program Director at GCI. All of the other employees in the program at LCI were laid off. On December 18, 2007, Petitioner wrote a letter to Mr. Walker requesting a written explanation regarding her demotion. Petitioner wrote that she had not been given an opportunity to address the adverse actions taken against her. Her letter did not raise any allegation of discrimination on the basis of race or gender. Mr. Walker met with Petitioner in December 2007. Mr. Walker informed her that if she had an issue with her demotion, that there was a grievance procedure she could pursue if she felt she needed to do so. Petitioner did not file a grievance with Respondent. Petitioner filed a Charge of Employment Discrimination with FCHR which gave rise to this proceeding. The Gainesville Program Respondent operates a Modality 2 program at Gainesville Correctional Institution (GCI). In 2006, an audit was conducted at GCI by Mr. Eberline at about the same time he conducted the annual comprehensive audit at LCI. The program at GCI had declined from the prior year’s completion rate of 71 percent to 51 percent. The performance standard for a Modality program was 60 percent, in contrast to the higher standard for Modality 1 programs. As a result of this drop in completion rates, a special meeting took place including Mr. Eberline, Mr. Walker, Mr. Burgess, the Program Director at GCI, and the prison administration. This special meeting was similar to the special meeting held at LCI to address improving completion rates. Unlike Modality 1 programs, there are no administrative discharge codes in a Modality 2 program. Thus, there was no issue relating to overuse of the ADM code, but there was a completion rate issue. The meeting focused on taking immediate steps to improve the completion rate, focusing on inmates at risk for obtaining disciplinary reports. By the time the meeting was held, the completion rate had begun to improve. Mr. Walker instituted a CAP for the GCI program although Mr. Eberline did not require one. The completion rate for GCI improved in approximately a three-month period. According to DOC’s calculation, GCI had a completion rate of 79.1 percent for fiscal year 2006-2007. This exceeded the contract standard of 60 percent. All of Respondent’s Program Directors have the same access to the OBIS system, must meet the same reporting standards, receive the same training, and must meet contractual standards set forth in the contract between DOC and Respondent.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 26th day of January, 2010, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS 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 26th day of January, 2010.
The Issue The issues to be resolved in this proceeding are as follows: Whether Respondent had an instructional employment contract that required cause for termination. Alternatively, if Respondent had a contract requiring cause for termination, whether there is cause for termination of that contract within the meaning of Section 231.36, Florida Statues, and Rule 6B-1.001 and 6B-1.006, Florida Administrative Code.
Findings Of Fact Petitioner, the Escambia County School Board (Board), is a unit of local government charged with the operation of the public school system in Escambia County, Florida, including the employment of teachers under certain contract conditions. Contracts and terms of service for regular members of the instructional staff are required to be in writing. See Section 230.23(5)(d), Florida Statutes. The Escambia County School Board also provides instructional services to juveniles under detention at the Juvenile Justice Center. Respondent was employed by the Board as a teacher during the 1994-1995 school year. During the 1994-1995 school year, Respondent was assigned to teach at the Juvenile Detention Center in Pensacola, Florida. Student S.C. met Respondent at the Pensacola Detention Center of the Juvenile Justice Center while he was an instructor at the Center. After she left the Pensacola Detention Center, she moved to North Carolina to live with her step-mother and father. While there, she wrote to Respondent; and sometime in early September she allegedly received correspondence from Respondent, including one letter dated September 5, 1995. The letter S.C. sent and the letter of September 5, 1995, do not appear to be discussing the same things. Respondent turned the letter S.C. wrote him over to his supervisor at school when he received it. Respondent denies writing or sending the letter of September 5, 1995 addressed to S.C. The September 5 letter's envelope had a return address which belonged to Respondent, and was signed "Ri" or "Rc". However, S.C. was unable to testify as to whom the letter actually came from. She did not recognize the handwriting as that of Respondent. More importantly, the Petitioner attempted to have the handwriting analyzed to determine whether the Respondent wrote the letter. The handwriting analysis determined that "the evidence falls short of that necessary to support a conclusive opinion" that Respondent wrote the September 5, 1995 letter. The Respondent also has been accused of sending other letters to people, including a threatening letter to the President of the United States, which he denied having done. All these letters came from a Rick Sapp in Pensacola but were not from the Respondent. So, too, during the pendency of these proceedings, an accusation was made that the Respondent had sent a letter to another student at the detention center. The Respondent did not send such a letter. The letter alleged to have been sent by the Respondent other than being signed "Rick" cannot be established to have been from the Respondent since it omits his phone number, address, and has a different return address and name on the envelope and was mailed from Panama City. Student S.C. ran away from North Carolina sometime in September 1995. She was subsequently detained at the Panama City Detention Center. S.C. testified that Respondent called her on the telephone, gaining access by identifying himself as a counsellor. Respondent allegedly told her that he was in love with her and wanted her to call him. Respondent allegedly gave her his telephone number. However, when she reported the call to the staff, other than transferring a "call from a counsellor," she did not say the call was from Respondent but someone sounding like Respondent. S.C. provided a telephone number to the detention worker who called it and asked to speak to Respondent. The party answering the phone said that Respondent was not there and identified himself as Respondent's roommate. S.C. testified she recognized the voice as that of Respondent which recognition is not credible. The Panama City Detention Center maintains a log of phone calls and activities occurring at the facility. The log indicates that on November 19, 1995, the controller received a call for S.C. The controller reported the caller identified himself as the counsellor for S.C. After receiving the call, student S.C. reported to the supervisor that the caller was not her counsellor, but was someone sounding like Respondent. S.C. reported Respondent had left a telephone number which in fact is one of Respondent's telephone numbers. Gene Rochelle called that number on the speaker phone asking for Respondent. The party answering the phone stated he was Respondent's roommate and that Respondent was not at home. Student S.C.'s report and the subsequent telephone call to the same number were noted in the log of the Juvenile Justice Center. S.C. also claimed to have received a letter from Respondent which she turned in to the Panama City Detention Center. The letter, although signed "Rick," has a return address showing the name "Hess" and the address, 1723 17th Avenue, Pensacola, Florida 32501 (not Respondent's) and appears to have been postmarked in Panama City, Florida. The letter also appears to have different handwriting than the September 5, 1996 letter. Although the letter asks S.C. to call or write, it omits the Respondent's telephone number or address and suggests only that a call be made to 411 in Pensacola to find it. Respondent denies calling or writing S.C. while she was at the Panama City Detention Center and was surprised that she had been there. On the whole, while it may be true that a number of letters were sent, the evidence falls short of disclosing that Respondent sent any of the letters, including the letter of September 5, 1995. The evidence regarding any of these contacts is at best inconclusive. Therefore the charges against Respondent involving S.C. should be dismissed. The District also alleges Respondent maintained an inappropriate relationship with a male student from the detention center, T.R. The original allegations were made by the older brother and lawful custodian of T.R., Michael Jarrell. Although the guardian of the student, T.R., did make an initial statement to Dr. Garber of the School Board accusing the Respondent of wrongdoing, shortly thereafter, upon learning the identity of the person earlier believed to have been the Respondent, T.R.'s guardian, Michael Jarrell, made a second statement clarifying that the person who was identified as Respondent was not the man who had been improperly interacting with his minor brother. Given these facts, the Petitioner has failed to produce any substantial evidence to demonstrate that Respondent engaged in an inappropriate relationship with T.R. Therefore the charge of misconduct as it relates to T.R. should be dismissed. Prior to the beginning of the new school year Respondent's 1994-1995 employment contract had expired. On August 14, 1995, William McArthur, Director of Human Resources for the Escambia County School District, signed, at the direction of Superintendent W. L. Maloy, an "Instructional/Administrative Appointment Request" form appointing Respondent to the position of teacher for the 1995-1996 school year. The practice of the Superintendent's office is to fill out the appointment request form on people whom the Superintendent intends to recommend for an annual contract to the Board. The form is placed in the teacher's personnel file and then the Superintendent formally recommends the employment of that person to the School Board by submitting the request form to the Board. The recommendation is required by statute to be in written form. See Section 230.23, Florida Statutes. The Superintendent of Escambia County Schools, among other things, is authorized by statute to recommend to the School Board those employees he determines should receive instructional contracts. See Section 230.33(7), Florida Statutes. The School Board, once recommendation is made by the Superintendent for employment of an instructor pursuant to contract, must act on that recommendation rejecting the Superintendent's recommendations only for good cause. Section 230.23(5), Florida Statutes. The Superintendent never submitted the request form nor recommended Respondent for employment to the School Board. The Superintendent of Escambia County Schools directed William McArthur, Director of Human Resources, to contact Respondent and tell him to return to work as an instructor at the Juvenile Detention Center in Pensacola, Florida. Mr. McArthur contacted Respondent who then reported to the Juvenile Detention Center for instructional duties around August 14, 1995. Since the Superintendent had not recommended Respondent to the Board, the Board never approved a written annual contract for Respondent. Therefore, Respondent could only be working under an oral or implied contract on a day to day basis with no specified term of employment. Approximately one month after Respondent went to work at the Juvenile Detention Center, Dr. Garber, Assistant Superintendent for Human Resources, was notified by a representative of the State Attorney's Office at the Juvenile Detention Center of a complaint regarding Respondent from a parent relative to his alleged communications with S.C., a female juvenile that had been detained at the center. The representative of the Office of the State Attorney at the Detention Center expressed concern about letters Respondent had allegedly sent to S.C. and wanted him removed from that Detention Center. The School District subsequently received copies of the letters Respondent was alleged to have written to the female student formerly under his instruction at the detention center. Because of the complaint and letters, Respondent was placed on administrative leave with pay while the District investigated the allegations. At the conclusion of the investigation the Respondent was notified by letter dated October 16, 1995, that the Superintendent would not recommend to the Board the award of an annual instructional contract. On October 16, 1995, Respondent was presented with a letter notifying him that he would not be recommended for any further employment with the school district. The October 16, 1995, letter was the first written notification that his employment would terminate. Respondent stopped working for the School Board on October 16, 1995.
Recommendation Based upon the findings of fact and the conclusions of law, it is, RECOMMENDED: That a Final Order be entered by the Petitioner, Escambia County School Board dismissing the charges of misconduct but upholding the termination of the Respondent, Ricky Sapp, on October 16, 1995 since he was not recommended for annual contact status and did not fall under the protections of Chapter 231, Florida Statutes. DONE and ENTERED this 28th day of August, 1996, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SunCom 278-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of August, 1996. APPENDIX The facts contained in paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11 and 12 of Petitioner's proposed findings of fact are adopted. The facts contained in paragraphs 13 through 18 of Petitioner's proposed findings of fact are subordinate. The facts contained in paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 14, 15, 16 through 22, 27, 28 and 30 of Respondent's proposed findings of fact are adopted. The facts contained in paragraphs 13, 23 through 26, 29 and 31 of Respondent's proposed findings of fact are subordinate. COPIES FURNISHED: Ronald G. Meyer, Esquire Meyer and Brooks, P.A. Post Office Box 1547 Tallahassee, Florida 32302 Joseph L. Hammons, Esquire Hammons and Whittaker, P.A. 17 Cervantes Street Pensacola, Florida 32501-3125 William Maloy, Superintendent Escambia County School Board Post Office Box 1470 Pensacola, Florida 32597-1470 Frank T. Brogan, Commissioner Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400
Findings Of Fact Stephen J. Sefsick was employed as Corrections Officer I at Zephr Hills Corrections Institute (ZCI) in November 1980. Sefsick met the minimum qualifications for promotion to Correctional Officer II. Sefsick is a white male and was not promoted to the position of Corrections Officer II. On May 24, 1985, Sefsick was denied a promotion to Corrections Officer II at ZCI when that promotion was given to Constance Hale, a Hispanic female. On June 28, 1985, Sefsick was denied a promotion to Corrections Officer II when that promotion was given to Ronald Young, a black male. A promotion committee consisted of Correctional Officer Supervisor I Wayne Hutto, Correctional Officer Chief Sammy Hill, Assistant Superintendent Eugene Ginn, and Superintendent Ray Henderson. The first two named interviewed 22 applicants for the vacancy filled May 24, 1985, including Sefsick as well as reviewed all applicants' personnel file. They also relied upon their knowledge of the applicants, all of whom they supervised, to make this recommendation. For the May 24, 1985, vacancy Hutto and Hill recommended Correctional Officer I Constance Hale for the promotion, citing her past performance and her continuing education and training as reasons for their recommendation. Assistant Superintendent Ginn reviewed this recommendation, approved same and forwarded it to Superintendent Henderson who has final promotion authority at ZCI. Superintendent Henderson approved the recommendation and Hale received the promotion. The same procedure was followed for the position filled June 28, 1985, except that those applicants interviewed for the May promotion were not again interviewed. On June 28, 1985, Hill and Hutto recommended Correctional Officer I Ronald Young for promotion to Correctional Officer II and this recommendation was accepted by the Superintendent and Young was promoted. Florida Department of Corrections has an Affirmative Action Plan (Exhibit 5) which provides that "promotions to vacant positions shall be through open competition and based on prior job performance in order that the best qualified person for the position is chosen. However, every opportunity shall be made to upgrade and promote women, minorities, and the handicapped to more responsible positions. . . . " No quota for promotions is provided and all witnesses concurred that the best applicant was chosen for the two vacancies here questioned. Sefsick received five employee service ratings between the time he was employed in November 1980 and the time of the promotions in question. The first two evaluations in 1981 were conditional, the third was satisfactory, and the fourth and fifth were above satisfactory with the fifth assigned November 20, 1984. In January 1985, Sefsick was counselled by Major Hill and Lieutenant Hester regarding his practice of using the "snitch" system to make drug seizures. He was informed that he was thereby jeopardizing the safety of inmates as well as his own safety. An additional 160 hours of training had to be completed by correctional officers at ZCI in order to qualify for the full pay increase effective in 1985. Sefsick was working the night shift and made little effort to change shifts to attend the evening classes required to complete the training. His supervisors believed he was resisting taking the required training. However, he completed the training before the deadline. Officer Hale completed the required training for correctional officer and in addition received training in Advanced Emergency Medical Procedures and Advanced Report Writing and Review. Since her employment on June 15, 1982, Officer Hale has received three evaluations in which all of the marks assigned were satisfactory and above satisfactory. Since his employment as a correctional officer on March 18, 1983, Officer Young has received four evaluations, two of which were satisfactory and two above satisfactory. Young has also completed all required training courses. Neither Sefsick's race nor his sex was considered by the promotional committee in denying him promotion.
Findings Of Fact At all material times, respondent has held a registered Class "B" Security Agency License, No. B86-00092, a Class "DS" Security Officer School/or Training Facility License, No. DS90-00069, a Class "D" Security Officer License, No. D85-2333, a Class "DI" Security Officer Instructor License, No. DI88-00012, and a Class "MB" Manager Security Agency License, No. MB86-00105. On March 20, 1991, Ella Verdell Green, Earl H. Hamilton, Sr., Paul Hudson Morris, and Joe Garcia, Jr. took a course from respondent's William Dysvik, a licenced instructor (T.55), and received certificates of completion "as part of the requirements for a Class 'D' license." Petitioner's Exhibit No. The course lasted eight hours, (T.17, 19, 41) 50 minutes of each hour being devoted to instruction. T.56. It began with Mr. Dysvik's talking to the class about security, (T.22), after which he passed out pamphlets which he and the class "went through." Id. After about 30 minutes, he told the students to study the pamphlets and invited questions. Ms. Green and others asked him several. T.32. That afternoon, a test was administered and discussed. The instructor "seemed just like a school teacher." T.35. He took his responsibilities seriously, and taught the approved curriculum in its entirety. T.42. Every 15 or 30 minutes, he left the classroom for five minutes. T.47. Part of the time he was out of the classroom he was preparing handouts. T.45, 47. As the day progressed, he and the class discussed each chapter of the materials. T.46.
Recommendation It is, accordingly, RECOMMENDED: That petitioner dismiss the administrative complaint it filed against respondent in this matter. DONE and ENTERED this 26th day of June, 1992, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of June, 1992. COPIES FURNISHED: Henri C. Cawthon, Esquire The Capitol, MS #4 Tallahassee, FL 32399-0250 Charles S. Isler, III, Esquire Isler & Banks, P.A. P.O. Drawer 430 Panama City, FL 32402 Honorable Jim Smith, Secretary Department of State The Capitol Tallahassee, FL 32399-0250 Phyllis Slater, General Counsel Department of State The Capitol, PL-2 Tallahassee, FL 32399-0250
Findings Of Fact The Petitioner, James Lee Church, is a white male who has been an employee of the Respondent, Department of Corrections since May of 1990. The Petitioner was originally employed as a Correctional Probation Officer, but in June of 1991 accepted a voluntary demotion to Human Services Counselor and relocation to Lake Correctional Institution, LCI, in order to attend graduate school in Orlando, Florida. In early 1993, the Petitioner applied for promotion to a position of Correctional Probation Officer I, also referred to as a classification officer, at LCI. Although this would have been a promotion from the position which he held, this is the same entry level position from which he had earlier taken a voluntary demotion in order to relocate. It can be inferred that the Petitioner was familiar with the job duties of the position which he had earlier held at another institution which included counseling inmates, computing gain time, setting up inmate work assignments, educational goals and social/religious programs. In March, 1993, Paula Hoisington, a black female, was Classification Supervisor at LCI, and reviewed all thirty applications for the Classification Probation Officer I position for which the Petitioner had applied. The Petitioner's qualifications exceeded the required educational and practical experience, and he had been previously employed by the Respondent in a similar position prior to relocating to LCI. Ms. Hoisington and the Petitioner discussed his application before the selection was made, and Ms. Hoisington advised the Petitioner that she was not putting his name forward for the promotional opportunity because she was aware he had applied for another position. The Petitioner queried Ms. Hoisington regarding whether that meant he would get the other position, and she advised him that it did not. The Petitioner advised her that he really was serious about putting his name forward for the instant promotion and desired to be interviewed. Ms. Hoisington excluded the Petitioner for the interview process which is required for recommendation for the promotion, and selected eight applicants (four white males, two black males, one white female, and black female) to be interviewed by the panel making promotional recommendations to the Superintendent of LCI. The panel recommended three candidates, two black males and one white male, and the Superintendent selected Willie McKinnon, a black male to fill the position. Mr. McKinnon had been employed as a correctional officer for eight years and a classroom teacher for three years prior to that, and possessed a degree in sociology and had worked as a social worker. In March 1993, the Petitioner applied for the promotional position of Human Services Supervisor at LCI, the position which had been discussed with Ms. Hoisington. This position required oversight of Tier II substance abuse program at LCI and supervising LCI personnel and staff provided by an outside vendor. Ms. Hoisington again selected the applicants to the interviewed, and this time included the Petitioner in the list. She also prepared the synopsis of each applicant's background and experience which was provided to each member of the panel. The panel consisted of a white female, two white males, and Ms. Hoisington. It recommended three applicants, two black females and one white male to the Superintendent, who selected the black female. The person selected had worked as a Human Services Counselor for three and one half years, and been employed previously by the Department of Health and Rehabilitative Services and had a degree in criminology. Ms. Hoisington and another member of the panel gave the Petitioner a bad score on the interview because he was perceived as arrogant and pompous because he acted as though he was the best candidate for the position. In October 1993, the Petitioner received a promotion to Correctional Probation Officer I. In March 1994, the Petitioner applied for promotion to Correctional Probation Officer II. The Petitioner was interviewed for this promotional opportunity, but was not selected by the panel who recommended a white female, a black female, and a white male to the Regional Administrator, who was the appointing authority. A white female was selected from the individuals recommended. In December 1993, the Petitioner applied for the promotional position of Correctional Probation Specialist, a new position overseeing various substance abuse programs throughout Region III (Central Florida) of Respondent. The application was made before the Petitioner's charge of discrimination by Ms. Hoisington was made to the Commission in January 1994. In the interim, Ms. Hoisington had been promoted to the Regional staff, and in her new position selected the persons to be interviewed for the position of Correction Probation Specialist for which the Petitioner had applied. Again, Ms. Hoisington put together the resumes for the panels consideration and served on the panel. The Petitioner protested Ms. Hoisington's participation in this process to the Respondent through its counsel, and suggested to Respondent's counsel that it was a conflict of interest for Ms. Hoisington to serve on the panel, which included of two white females and Ms. Hoisington. The Respondent refused to take Ms. Hoisington off the panel which recommended one black male and one white female for the position. The hiring authority, a white male, selected a white female who had worked for the Department nine years to fill the position. The Petitioner had a degree in biology, had teaching experience, was a certified correction probation officer, had work experience in West Virginia as a classification supervisor, and had work experience in North Carolina administering and monitoring grants and grant moneys to daycare providers. He had worked in the Tier II drug program during his employment by the Department, and would have been qualified by education and experience for a supervisor's position in this area. The Petitioner was promoted to Correctional Probation Officer II in September 1994. Classification of jobs and validation of requirements for positions in career service was performed by the Department of Administration during the initial period of Petitioner's employment by Respondent, and by the Department of Management Services later in his employment pursuant to statute. The questions used by interview panels for positions within the Department are part of a qualification examination. These examination questions have not been validated relative to the various jobs within the Department of Corrections, and validated to determine their ability to accurately predict job performance by applicants. They are used by panels to assess the applicants and are scored; however, there is a subjective component to the assessment of applicants as revealed by the low grades received by the Petitioner for "arrogance" by panel members in his interview for the Human Services Counselor Supervisor position. Attitude was not a "scorable" component of the test, yet it was determinative in the minds of two of the evaluators. There is no evidence that the questions were racially biased, or that they were the basis of racial discrimination against the Petitioner. The Petitioner's supervisor, Ms. Ramirez, did make statements to Ms. Hoisington which indicated that he was not a team player; however, she also advised Ms. Hoisington that Petitioner did his job as she instructed him to do it. Ms. Hoisington testified regarding this, and Ms. Ramirez' affidavit is not inconsistent with Ms. Hoisington's testimony. The Department is an employer. The Department has been determined to have discriminated against Hispanic and black females in hiring for certain positions which are not at issue in this case. There is no evidence that the Department has discriminated generally in the past against white males in its hiring practices. The only evidence presented on racial discrimination is that outlined above.
Recommendation Based upon the consideration of the facts found and the conclusions of law reached, it is, RECOMMENDED: That the Petitioner's complaint be dismissed. DONE and ENTERED this 15th day of June, 1995, in Tallahassee, Florida. STEPHEN F. DEAN, 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 15th day of June, 1995. APPENDIX CASE NO. 94-4480 The parties filed proposed findings which were read and considered. The following states which of those findings were adopted, and which were rejected and why: Petitioner's Findings Proposed Order Paragraph 1-3 Subsumed in specific findings. Paragraph 4 No evidence was received that Ms. Hoisington's refusal to place Petitioner's name on the interview list was a violation of Departmental rules. Paragraph 5 Subsumed in Paragraph 4. Paragraph 6-8 Subsumed in Paragraph 19. Paragraph 9 Irrelevant. Paragraph 10 Subsumed in Paragraph 18. Paragraph 11 Cannot be determined from the information provided and is irrelevant. Paragraph 12-20 All of these findings relate to the fourth promotional opportunity, in which a white female was recommended by the panel and hired. The Petitioner failed to make a showing of racial prejudice in this instances, about which evidence was received because it supported the previous allegations; however, the Petitioner did not plead retaliation in his complaint and no findings will be made on allegations about retaliation. Paragraph 21,26-28,30 Subsumed in Paragraph 18. Paragraph 22 Subsumed in Paragraph 17. Paragraph 23-25,29 Legal arguments. Respondent's Findings Proposed Order Paragraph 1-4 Paragraph 1-4. Paragraph 5 Rejected as contrary to more credible evidence. Paragraph 6,7 Paragraph 5. Paragraph 8a,8b,9 Paragraph 6,7,8,9. Paragraph 10,11,12 Paragraph 10,11. Paragraph 13 Paragraph 12,13. Paragraph 14 Subsumed in Paragraph 18. Paragraph 15 Subsumed in Paragraph 15. COPIES FURNISHED: James Lee Church 907 Foresthill Drive Clermont, FL 34711 Susan Schwartz, Esquire Department of Corrections 2601 Blair Stone Road Tallahassee, FL 32399-2500 Sharon Moultry, Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32303-4113 Louis A. Vargas, General Counsel Department of Corrections 2601 Blairstone Road Tallahassee, FL 32399-2500
The Issue The issue is whether Respondent discriminated against Petitioner because of his disability by refusing to renew Petitioner’s contract for employment.
Findings Of Fact Respondent is a private university located in Pasco County, Florida (Saint Leo or the university). Respondent employed Petitioner as an assistant professor from sometime in January 2000 until the end of the 2005-2006 school year in May 2006. Petitioner initially taught sports management courses in the Business Department of Saint Leo and, following the university reorganization, taught sports management courses in the Sports Management Department of the School of Business (the Department). The Charge of Discrimination and Petition for Relief allege, in relevant part, that Respondent violated Section 760.10, Florida Statutes (2004), when Respondent allegedly discriminated against Petitioner because of Petitioner's handicap. Neither the Charge of Discrimination nor the Petition for Relief expressly allege that Respondent violated the Americans with Disabilities Act (ADA) of 1990, Pub. L. No. 101-336, 104 Stat. 328, codified as amended at 42 U.S.C. Sections 12101-12213 (2000). However, judicial decisions discussed in the conclusions of law instruct the trier of fact to make findings in a manner that is consistent with the ADA.1 Petitioner is a person with a handicap within the meaning of Subsection 760.10(1)(a), Florida Statutes (2000). Petitioner was paralyzed in an automobile accident on December 19, 2001, and is a disabled person within the meaning of 42 U.S.C. Section 12112 (2004). Petitioner is a qualified person within the meaning of 42 U.S.C. Section 12111(8) (2004). Petitioner is a person with a disability who can perform the essential functions of a tenured employee. Petitioner was qualified for the position for which Respondent employed Petitioner in January 2000. Petitioner received his doctorate of education in sports management from the United States Sports Academy in 1990. Although Petitioner had no prior experience teaching at the college level, Petitioner was the only doctorate teaching sports management courses in the Business Department of the university when Respondent employed Petitioner in January 2000. At the time, Respondent needed a doctorate to teach sports management courses in order to satisfy the accreditation requirements of the Southern Association of Colleges and Schools (SACS). Respondent does not allege that Petitioner is not qualified to perform the requirements of a tenured employee. Respondent argues, and submitted evidence intended to prove, that Petitioner either lacked the motivation to perform the required job duties or simply refused to perform those duties. On November 12, 2004, Respondent notified Petitioner that Respondent would not renew Petitioner’s teaching contract at the end of the 2005/06 school year. The refusal to renew Petitioner's teaching contract was an adverse employment action. There is no direct evidence that the adverse employment action was motivated by discrimination. However, the circumstantial evidence, taken as a whole, supports a reasonable inference by the trier of fact that the adverse employment action was motivated by both legitimate non-discriminatory and discriminatory reasons. Legitimate non-discriminatory reasons, in part, motivated the adverse employment action against Petitioner. When a third-year review of Petitioner's job performance began on August 26, 2004, Petitioner had not prepared sufficient papers for conferences, had not demonstrated consistency in presenting papers at conferences, and had not served on any conference panels. Petitioner had not published a sufficient number of articles or books and had not engaged in sufficient scholarly research. Petitioner did not submit any paper or abstract to present at a conference until June 2004. The first paper was accepted for publication in November 2004. In September 2004, Petitioner had his first test bank accepted for inclusion in a textbook published by another author. Petitioner utilized at least one course syllabus that was below grade level. The syllabus included some grammatical errors and inaccurate information. Petitioner episodically cited incorrect facts during class. Petitioner was occasionally late to class for up to five minutes. Petitioner frequently read from the textbook when lecturing students. Petitioner sometimes did not give prior notice to his supervisor of his unavailability for a class. The supervisor was unable to arrange for a substitute. Petitioner sometimes cancelled classes without providing class notes for the substitute. Petitioner failed to maintain consistent office hours for academic advice of students. One faculty member in an adjacent office provided academic advice to Petitioner's students in Petitioner's absence. Petitioner failed to attend a meeting in Atlanta, Georgia, as a reviewer on a national council chaired by Petitioner's supervisor. Petitioner did not ascertain the correct starting time or location of the meeting. The failure to attend the meeting in Atlanta caused the council to be short a reviewer for one year. The inclusion of Petitioner as a reviewer on the council would have provided Petitioner with an opportunity to improve his national reputation and meet many influential people in his field of employment. Record evidence supports a reasonable inference that discriminatory reasons, in part, motivated the adverse employment action against Petitioner. Two of four evaluators in the third-year review of Petitioner's job performance that began on August 26, 2004, referred to Petitioner's disability in their formal evaluations. The two evaluators testified at the hearing that Petitioner's disability did not influence their evaluations. Their testimony is neither credible nor persuasive to the trier of fact. The testimony of the two evaluators, among other considerations, is not plausible. The testimony does not adequately explain why the evaluations address Petitioner's disability if the evaluators disregarded the disability in evaluating Petitioner.2 The immediate supervisor of Petitioner commented on Petitioner's disability in her third-year evaluation of Petitioner. The supervisor stated she was "extremely disappointed" during the previous academic year when Petitioner declined her request to "be a role model and show our students what individuals with handicaps could achieve." The supervisor further explained in her evaluation that "disability sport has - become a major segment of - our sport business industry - and there are many career opportunities for students in this area." The supervisor further stated in her third-year evaluation of Petitioner that she could not "fully understand what it is like to have [Petitioner's] disability." However, the supervisor stated that she had "worked with physically challenged individuals for approximately 16 years, and they never ceased to amaze [her] at what they could do." One of three outside evaluators also included references to Petitioner's handicap in the third-year evaluation of Petitioner. The evaluator devoted approximately one-third of the evaluation to a discussion of his experience working with one disabled colleague who had been seriously injured in a motorcycle accident and was, like Petitioner, wheelchair bound. After recounting the many laudable accomplishments of the evaluator's disabled colleague after becoming disabled approximately 12 years ago, the evaluator stated that his disabled colleague did not consider himself disabled. The evaluator explained that his disabled colleague "never makes excuses for his special challenge nor does he ask or demand special considerations due to his situation." The evaluator went on to compare Petitioner's paralysis with the evaluator's self-proclaimed "disability" following open heart surgery. The evaluator stated that he had undergone open heart by-pass surgery and did not let his "disability" prevent him from achieving performance standards. After recounting numerous professional accomplishments after his surgery, the evaluator explained: The reason I have provided this information is not to brag but rather to illustrate that if one has a positive attitude about life he/she can do anything he/she wishes whether or not they are disabled. A disability is an extra challenge in life not a sentence to do less. I have not let my disability negatively affect my career. Respondent's Exhibit 44 at 4. When prima facie evidence shows that an adverse employment action is motivated by both non-discriminatory and discriminatory considerations, an employer does not escape liability under the ADA on the ground that the adverse employment action was not motivated "solely" by prohibited discrimination. Rather, judicial decisions discussed in the conclusions of law require the trier of fact to apply a so- called motivating-factor standard, or mixed-motive standard.3 The motivating-factor standard requires the trier of fact to determine whether the prohibited discriminatory motive made the difference in the decision to take the adverse employment action.4 The motivating factor standard has been judicially explained as a "but-for" standard.5 Liability for prohibited discrimination requires the trier of fact to find that Respondent would not have taken the adverse employment action but-for the prohibited discrimination. The but-for standard requires the trier of fact to determine whether the evidence supports a reasonable inference that Petitioner's failure to comply with performance standards for tenure was caused by his handicap.6 If the evidence supports such an inference, the adverse employment action would not have been taken but-for the prohibited discrimination. The record evidence supports a reasonable inference that Petitioner's failure to comply with performance standards for tenure by the beginning of the third-year review on August 26, 2004, was caused by his handicap. The inference is supported, in relevant part, by comparing the record evidence of Petitioner's performance during his employment before his disabling accident on December 19, 2001, with Petitioner's performance from the date of the accident until the beginning of the third-year review on August 26, 2004. Prior to the accident on December 19, 2001, Petitioner taught classes at Saint Leo for four semesters.7 Petitioner received four evaluations by three different evaluators. Even though it was Petitioner's first teaching experience at the college level, all but one of those evaluations rated Petitioner's job performance as "outstanding." The one exception rated Petitioner's job performance in his first year as "satisfactory." In the second year, however, the same evaluator rated Petitioner's job performance as "outstanding." The supervisor for Petitioner during the first and second academic years of employment was the acting chair of the Business Department at Saint Leo. The supervisor rated Petitioner's job performance during the first year as "satisfactory." However, a second-line evaluator who was also a dean at Saint Leo rated Petitioner's job performance during the first year as "outstanding." In the second academic year, the supervisor rated Petitioner's job performance as "outstanding." The supervisor found that Petitioner was "developing into a highly competent and effective classroom teacher." An outside evaluator retained to evaluate Petitioner during the second academic year found that Petitioner had made "positive contributions to [the] sport management program." The evaluator recommended that Respondent retain Petitioner based on Petitioner's academic background, sport management experience, and teaching performance. Prior to the accident, Petitioner was selected to serve on the Panel of Reviewers for the Sport Management Program Review Council (SMPRC) to review institutional portfolios. The selection provided Petitioner with an opportunity for professional development, an improved national reputation, and enhanced professional relationships. However, the opportunity was postponed due to the accident that paralyzed Petitioner. On January 29, 2002, Petitioner received a fifth evaluation by a fourth evaluator. The dean of the School of Business (the Dean) evaluated Petitioner's job performance for the four academic semesters that Petitioner worked before the accident. The Dean found that Petitioner was: cademically competent and very committed to Saint Leo University and the well being of his students. Stewart is relatively new to university level teaching and the expectations associated with this level of performance. His classroom manner is casual yet he holds the students to high performance standards. Stewart will need to identify an area of research interest and begin to prepare papers for the conferences in his discipline. I approached him with an idea and a willingness to co-author a paper. Unfortunately, due to his accident, Stewart will be involved full-time for the next six months in rehabilitation and relearning. Stewart has excellent potential to develop into an effective senior faculty member. Respondent's Exhibit 10. After the accident on December 19, 2001, Petitioner taught three academic semesters before his third-year review that began on August 24, 2004, and led to the adverse employment action on November 12, 2004. During the semester that began in January 2002, Petitioner was on medical leave to undergo surgery and recover. Petitioner worked during the semester that began in August 2002, but returned to medical leave during the semester that began in January 2003 in order to undergo additional surgery. Petitioner worked the two semesters that began in August 2003 and January 2004. On August 24, 2004, at the start of the fourth semester of work after the accident, Respondent began the third-year review that led to the adverse employment action on November 12, 2004. During the three semesters that Petitioner worked between the accident and the start of the third-year review, the Dean, who evaluated Petitioner on January 29, 2002, did not pursue the idea he had described for co-authoring a paper with Petitioner. Petitioner was learning to adjust to life in a wheel chair. Petitioner experienced, and continues to experience, a great deal of pain unless Petitioner takes pain medication. Petitioner has also had to learn new toileting skills and has expressed embarrassment over his condition. Petitioner did not attend the council meeting in Atlanta, Georgia, because he became confused over the correct time and location of the meeting. Petitioner did not make a volitional choice not to attend the meeting. On December 5, 2003, Dr. Michael Moorman was Petitioner's immediate supervisor. Dr. Moorman found that the quality of Petitioner's classroom teaching was "outstanding." After December 5, 2003, Respondent changed the job performance standards for employees teaching sports management courses at Saint Leo.8 While Petitioner was on medical leave, each school at Saint Leo designated a program as a "flagship" program. Each flagship program would be funded and supported in an effort to enable the program to grow into a nationally recognized program that would serve as a paragon for other Saint Leo programs to emulate. The job performance requirements in each flagship program were also intended to establish a standard for emulation by other programs. The School of Business designated the Sport Management Program as its flagship program and reorganized the program into the Sport Management Department. In February 2003, Respondent commissioned an outside study of the Department. The study concluded that the Department lacked academic rigor, failed to challenge students, and was poorly organized for the purpose of becoming a flagship program for Saint Leo. Respondent searched for a nationally known professor to chair the Department. Respondent wanted someone who could make the necessary curriculum changes, improve the Department's national recognition, increase the academic rigor of the Department, and enhance the national reputation of its professors, including Petitioner. In August 2003, Respondent selected a person to chair the Department. After December 5, 2003, the new chair succeeded Dr. Moorman as Petitioner's immediate supervisor. The new chair found, during the academic semester that began in January 2004, Petitioner did not meet the job performance requirements of the new flagship Department of Sport Management. One deficiency the chair described in her third- year evaluation of Petitioner pertained to errors in a syllabus used by Petitioner. For example, the syllabus continued to use the title "Saint Leo College" instead of "Saint Leo University." The new chair confided to an associate in the Department that the vice president of Academic Affairs (Vice President) had told the new chair in so many words that Petitioner would have been fired long ago if Petitioner had not been in a car accident. The associate testified to the statement she attributed to the new chair, and the associate's testimony is found to be credible and persuasive. The Vice President denied making the statement to the new chair during his testimony, and that portion of his testimony is found to be credible and persuasive. The statement attributed to the Vice President that he would have fired Petitioner but-for the accident conflicts with the predominantly "outstanding" job performance of Petitioner prior to his accident. The testimony of the new chair also conflicts with two evaluations of Petitioner's job performance by different deans on January 29, 2002, and December 5, 2003. Both of those evaluations occurred after the accident, but before the new chair became the immediate supervisor of Petitioner sometime after December 5, 2003. It is more likely that the new chair expressed her own view that the university was holding Petitioner to a lower standard of job performance because of his disability. When the third-year review process began on August 26, 2004, Petitioner was no longer the only doctorate employed in the Department. However, he was the only disabled doctorate employed in the Department. The record evidence supports a reasonable inference that Respondent required Petitioner to comply with standards exemplified by unidentified disabled persons described in two of the four third-year evaluations of Petitioner.9 Respondent did not require non-disabled employees to comply with similar standards. The Vice President testified that the references in the evaluations to standards exemplified by other disabled persons did not influence his decision to take the adverse employment action on November 12, 2004. That portion of the testimony of the Vice President is neither credible nor persuasive. The Vice President, in relevant part, relied on the third-year evaluations. His denials of influence conflict with other relevant evidence. Before the Vice President began the third-year review process on August 26, 2004, he conferred with the new chair and reviewed Petitioner's record, including Petitioner's record of "outstanding" performance on or before December 5, 2003. In a letter to Petitioner dated August 26, 2004, the Vice President told Petitioner, in relevant part, that he had "serious concerns regarding your performance." The Vice President instructed the Dean and the new chair to "carefully monitor" Petitioner's "teaching and professional development activities in the fall semester of 2004." However, neither the Dean nor the chair monitored Petitioner's activities, and the Vice President initiated the adverse employment action on November 12, 2004, prior to the conclusion of the fall semester. Respondent applied a different timeline to Petitioner's tenure track than the timeline that Respondent generally applied to the tenure track of other employees. Tenure track employees may apply for tenure after their fifth year of employment, but may apply no later than their seventh year of employment. Most tenure track employees apply for tenure during their sixth year of employment. Employees on tenure track at Saint Leo receive annual contracts for their first, second, and third years of employment. Tenure track employees that receive a favorable third-year review are given a two-year employment contract after the third and fifth years of employment. Petitioner began his tenure track in January 2000. The seventh year of his tenure track would have expired at the end of the academic semester in December 2006.10 The third year of Petitioner's tenure track would have expired at the end of the academic semester in December 2002. Due to the accident on December 19, 2001, however, Respondent extended the time for the third-year review until August 26, 2004. The extension provided Petitioner with seven academic semesters, rather than six, before the third-year review began.11 Although Respondent extended the time for beginning the third-year evaluation, Respondent did not extend the seven- year limit for tenure. Respondent thereby reduced the time after the third-year evaluation in which Petitioner had to correct his deficient job performance to a period less than that enjoyed by non-disabled employees. Other tenure track employees normally have 14 academic semesters in which to complete their seven-year tenure track. Upon the expiration of six academic semesters, Respondent conducts a third-year evaluation. A tenure track employee then has eight more academic semesters, or four academic years, in his or her tenure track. Respondent reduced Petitioner's tenure track by a semester when Respondent terminated Petitioner's employment at the end of the academic semester in May 2006, rather than at the end of the academic semester in December 2006. By extending the third-year evaluation by a semester and reducing the remaining tenure track by an additional semester, Respondent reduced by one year the period that non-disabled tenure track employees have after their third-year review to complete their tenure track requirements. The Vice President has conducted third-year reviews on approximately 20 tenure track employees at Saint Leo since 1997. He has terminated the employment of two of those candidates. Petitioner is one of the two terminated from employment. The Vice President acknowledged in his testimony that he may have given Petitioner more time if the adverse employment decision were based solely on research and acceptable publication levels. Petitioner's teaching performance on and before December 5, 2003, was predominantly "outstanding." Moreover, one of the outside evaluators found that syllabi deficiencies were nothing that could not be easily corrected. Another evaluator found the syllabi "are consistent with guidelines established by NASSM/NASPE." It is unlikely, therefore, that the adverse employment action was motivated by job performance deficiencies in teaching, research, and syllabi. The Vice President relied on findings of evaluators that evaluated Petitioner, in relevant part, on Petitioner's inability to comply with standards exemplified by other disabled persons. The Vice President articulated no intelligible standards he used for discerning whether, or to what degree, the disability of Petitioner influenced the negative opinion of the evaluator. Moreover, the Vice President did not undertake an independent determination of whether Petitioner's handicap prevented Petitioner from complying with applicable job performance requirements by August 26, 2004. The job performance requirements for tenure are prescribed in the Collective Bargaining Agreement (CBA) and a Faculty Handbook (FHB). The CBA provides, in relevant part: Promotion and tenure decisions at Saint Leo University are made on the basis of documented and evaluated performance in three areas: (1) teaching; (2) scholarly growth [sic] (3) institutional and community service. (a) Tenure and Promotion: The primary criteria for decisions regarding reappointment, tenure and promotion are excellence in classroom teaching and in facilitating student learning. Teaching Faculty must demonstrate excellence in teaching, a part of which is academic advising. Teaching faculty must demonstrate excellence in either (1) scholarly growth or (2) institutional and community service. Scholarly growth may be demonstrated through professional development and/or research. The definition of professional development and scholarly research will be determined by the relevant School. The University will recognize both traditional and non- traditional means of demonstrating professional development and/or research. Respondent's Exhibit 1 at 44. The FHB describes guidelines for promotion and tenure applications in terms similar to those in the CBA. The FHB provides, in relevant part: Promotion and tenure decisions at Saint Leo University are made on the basis of documented and evaluated performance in three areas: teaching; professional development, research, and scholarly growth; and institutional and community service. For teaching faculty excellence in teaching and demonstrated student learning are essential to tenure and promotion. Either professional development, research and scholarly growth or institutional and community service must be judged excellent for tenure. Respondent's Exhibit 2 at 73. The School of Business does not provide written job performance requirements that determine the tenure requirements for scholarly research and professional development. Testimony at the hearing suggested tenure requires at least two publications or presentations each year. However, that testimony is belied by predominantly "outstanding" job performance evaluations of Petitioner during his first two academic years in which Petitioner published no articles and made no presentations. In the three complete academic semesters that Petitioner had available to him after the accident to pursue his scholarly research, one article authored by Petitioner was accepted for publication and a test bank authored by Petitioner was included for publication in a text book. Petitioner also attended three conferences.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law it is, RECOMMENDED that a final order be entered granting Petitioner’s Charge of Discrimination and Petition for Relief for the reasons stated herein, and reinstating Petitioner to his position of employment with back pay and benefits. DONE AND ENTERED this 29th day of December, 2006, in Tallahassee, Leon County, Florida. S DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th of December, 2006.
