The Issue The issues to be resolved in this proceeding concern whether an unlawful employment practice was imposed upon the Petitioner by the Respondent, based upon her race, through a denial of her tenure and resultant termination from employment, as well as whether the Petition for Relief was timely filed, and therefore jurisdictional.
Findings Of Fact The Petitioner, at times pertinent hereto, was an Assistant Professor of Business Education. She was employed by the Respondent, FAMU and had worked in that capacity for a number of years since 1988, prior to which she had been employed by the Respondent University as an instructor. The Respondent, FAMU, is a university which is a part of the State of Florida University system, administered by the Board of Governors of the State University System, as well as its own Board of Trustees. The Petitioner was employed by the Respondent since 1983. She began as an instructor but was promoted to Assistant Professor of Business Education in 1988. In January 1999, she began working in a tenure-earning position as an Assistant Professor in the College of Education's Department of Business and Technology Education. She also served as chair of the department from 1998 through 2004. Florida Administrative Code Rules 6C-5.940(1)(e) and 6C3-10.211(5)(a) allow a period of six years during which one situated as the Petitioner, in a tenure-earning position, in continuous, full-time service, must earn and be granted tenure. If tenure is not earned and granted during that period, the Respondent must give notice to such an employee that further employment beyond the end of the seventh year of employment, without tenure, is not possible. The Petitioner applied for tenure on September 17, 2004. That tenure application was denied, which engendered the dispute involved in this proceeding. Prior to that application, however, at some point during her employment in a tenure-earning position, the Petitioner had previously applied for tenure, but the previous application had also been denied. That denial was presumably with leave for her to re-apply for tenure at a later time during her six year tenure-earning time period. After the Petitioner began her employment she received a copy of the applicable tenure criteria. The tenure criteria for scholarly publication require that a tenure candidate show that at least three publications by that candidate have at least been accepted for publication or have actually been published. Publications include books, monographs, and articles in national, regional, state or local journals, which meet peer review requirements. The publication requirements also mandate additional publication credit, which may include individual citations in quotations in a text or credits for scholarly endeavors. The requirements also contain the condition that at least two papers must be presented at state, regional or national professional meetings. The Petitioner's tenure application was submitted on September 17, 2004, and included references to three publications used by the Petitioner as meeting the publication requirements for tenure: a) a project for spring 2005 entitled "Professional Report Writing" with reference to Thomson Publishing Company; b) a 2005 project entitled "English and Grammar Skills Review for Business" also with reference to Thomson; and c) a 2005 project entitled "Charles Spencer Smith," with reference to the "Oxford Press." During the hearing, in her Exhibits 10 and 11, the Petitioner presented the cover pages of two of the projects, the "Professional Report Writing" text, as well as the "English and Grammar Skills Review for Business" text, in an attempt to prove compliance with the publication requirement for tenure. There was no showing, however, that the Respondent was provided with any documentation by the Petitioner during the tenure application process showing that these publications had been accepted by publishers for any of the projects. In September 2004, the Tenure and Promotion Committee within the College of Education (COE) was composed of Chair- Person Dr. Mary Newell, Dr. Arland Billups, Dr. Bernadette Kelly, Dr. Maria Okeke, and Dr. Theresa Shotwell. Dr. Shotwell did not vote on the Petitioner's tenure application to avoid the appearance of impropriety because she was chair of the department to which Petitioner belonged at the time. The COE Tenure and Promotion Committee considered the tenure application of the Petitioner and a secret ballot was held, resulting in a unanimous vote against granting tenure. The four members who testified in this hearing stated that they were not motivated by considerations of race when they considered the Petitioner's application. Once the individual college tenure and promotion committee votes on a tenure application, the matter is elevated for consideration by the University-Wide Tenure and Promotion Committee (University Committee). That committee considered the Petitioner's application for tenure on January 18, 2005, and voted to recommend approval of the application for tenure by a vote of 10 yeas, 1 nay, and 2 abstentions. The University Committee then considered the Petitioner's application for promotion from Assistant Professor to Associate Professor, on February 23, 2005. That promotion apparently requires approval of tenure status, because the committee voted to recommend denial of the application for the promotion. During the time the Petitioner's tenure and promotion applications were pending, Dr. Larry Robinson served as the Vice-President of Academic Affairs and as Provost of the university. Dr. Robinson reviewed the Petitioner's tenure application after the University Committee and recommended against granting her tenure. His decision, according to his testimony, was not racially motivated, but rather he explained that the Petitioner's application was recommended to be denied by him because he to thought it lacked sufficient documentation of scholarly publications. The Interim President of the Respondent University during the time the Petitioner's tenure and promotion applications were pending was Dr. Castell Bryant. Dr. Bryant was responsible for making a final review or consideration at the University level, taking into account recommendations of the tenure committees reporting to her. She then had the duty to nominate for tenure, or to decline nomination, to the University's Board of Trustees. The Board of Trustees had the authority to make final decisions concerning tenure applications. The Board would not consider a tenure application without a nomination by the University President. Dr. Bryant did not nominate the Petitioner for tenure to the Board of Trustees. She informed the Petitioner by letter of June 22, 2005, that the Petitioner's application for tenure was not approved for submission to the Board of Trustees. Dr. Bryant's letter to Dr. Young, in which she denied tenure, seems to indicate that Dr. Bryant was under the misapprehension that the University Committee had voted against recommending tenure when, in fact, it had voted in favor of tenure. Nonetheless, Dr. Bryant declined to nominate the Petitioner for tenure to the Board of Trustees, which act constituted a final denial, subject to the Petitioner's review rights concerning the decision. Dr. Deborah Austin was the Provost and Vice-President for Academic Affairs after Dr. Robinson left that position in September of 2005. She was requested to review the Petitioner's tenure denial, so Dr. Austin requested a "step-one grievance" reviewer, Dr. Charles MaGee, to review the Petitioner's tenure application. Dr. McGee found that the Petitioner's application did not satisfy the College of Education's tenure criteria (concerning scholarly publications) but he did recommend that the Petitioner actually receive tenure based upon her many years of service. Dr. Austin, however, did not agree with his assessment. She stated that the requirements for tenure don't provide for a substitution of the tenure criteria concerning scholarly publications and sponsored research, for years of service. In her letter of December 5, 2005, to the Petitioner Dr. Austin stated this reason for disagreement with Dr. McGee's assessment. She informed the Petitioner that this was the second time that she had applied for tenure and that, indeed, most faculty members are not given more than one opportunity to apply for tenure at the University. In that letter she also informed the Petitioner that she could file an appeal of the decision with Dr. Bryant within 30 days of receipt of the "step- one response" or file for an Administrative Proceeding with the Division of Administrative Hearings. She also advised the Petitioner of the steps to take in order to file a request for a proceeding before the Division of Administrative Hearings. Dr. William Tucker who testified on behalf of the Petitioner, and who has participated in faculty tenure review committees during his years at FAMU, pointed out that Dr. Bryant, the Interim President, had somehow misunderstood the university committee's vote. Dr. Tucker, however, indicated that he agreed with Dr. Austin that 22 years of service does not suffice as a criterion for granting tenure, although he did not agree with Dr. Austin's conclusion on the issue of tenure. The Petitioner sent a letter to Dr. Bryant requesting an appeal of Dr. Austin's decision (to Dr. Bryant) on January 4, 2006. She enclosed with that letter the cover pages for two of her projects and indicated that she thought they would serve as documentation for two of three publications needed for tenure. On April 3, 2006, Dr. Bryant sent a letter to the Petitioner as a follow-up to a meeting between those two on March 8, 2006, regarding re-consideration of the Petitioner's tenure application. Dr. Bryant indicated in that letter that, after thorough review of her tenure application package, Dr. Bryant found no reason to reverse the tenure decision previously made. The Petitioner contends that a comparator employee, Dr. Nancy Fontaine, was given an additional year to apply for tenure when she failed to achieve tenure and that the Petitioner was not accorded that opportunity. Dr. Fontaine is white. The Petitioner thus maintains that Dr. Fontaine was treated better than she and is a comparator employee outside her protected class. The Petitioner's evidence, however, does not establish that Dr. Fontaine and the Petitioner are actually similarly- situated employees. The Petitioner was not sure why Dr. Fontaine was initially denied tenure, but stated in her testimony that Dr. Fontaine was given another year to write an article or whatever she needed to do to qualify for tenure. The Petitioner did not, however, show that Dr. Fontaine lacked the same number of scholarly publications that the Petitioner lacked at the time of the tenure application, or that lack of publications was even the reason for Dr. Fontaine's initial tenure denial. She expressed no clear information in her testimony or other evidence as to what frailty, or degree of it, attended Dr. Fontaine's tenure application which was initially denied. Moreover, the Petitioner had a six-year period, as would any university personnel in tenure earning positions, to apply for tenure and then to re-apply if tenure were not granted on the first effort. The Petitioner, however, during that six- year period did not satisfy the Respondent's written scholarly publication requirement. The Petitioner adduced no persuasive evidence to show at what point in her tenure-seeking effort Dr. Fontaine was when she was denied tenure, and then given an additional year to earn tenure. It may be that Dr. Fontaine had a substantial portion of her six-year allowable period for tenure-earning still ahead of her. The evidence does not show. In any event, although the Petitioner attempts to compare the results of Dr. Fontaine's grievance process regarding her tenure denial to the Petitioner's application process, denial, and ultimate result, by way of showing disparate treatment, the evidence still does not show that Dr. Fontaine is a similarly-situated employee. When she was denied tenure, the Petitioner asked for a review of that decision and was granted one. As a result of that review, Dr. McGee recommended her for tenure, but acknowledged that she did not meet the requirement for scholarly publication. His recommendation had no binding effect, in any event, with regard to the Provost's and the Interim President's ultimate decision on the matter. Despite his recommendation, Provost Austin and Interim President Bryant chose not to grant tenure to the Petitioner on the basis of her publication deficiencies. Dr. Fontaine, on the other hand, used the complete grievance process under the university rules to file a complaint against the university pursuant to Florida Administrative Code Rule 6C3-10.232. During this process Dr. Fontaine requested additional time to apply for and earn tenure and, as a result, in a settlement of the dispute by settlement agreement, Dr. Fontaine was given another year to apply for tenure. The Petitioner, however, although being informed by Provost Robinson in his September 1, 2005, letter to the Petitioner that she could use that process, chose not to do so. The Petitioner also conceded that she did not request additional time to satisfy tenure requirements. Therefore, the Petitioner and Dr. Fontaine are not truly comparable and similarly-situated employees in the above- referenced particulars. Parties settle litigation for many reasons. Often the motivations are grounded in practicalities, such as limitation of litigation expenses balanced against the perceived likelihood of a successful litigated result. There is no evidence that the decision by FAMU to enter into a settlement agreement with Dr. Fontaine, whereby she was accorded additional time to qualify for tenure, was predicated, in any way, on Dr. Fontaine's race. There is no sufficiently detailed evidence to support a finding that the factual circumstances of Dr. Fontaine's tenure application, and its grant-versus denial consideration, were substantially similar to that of the Petitioner's.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the candor and demeanor of the witnesses, and the pleadings and the arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered by the Florida Commission on Human Relations dismissing the Petition in its entirety. DONE AND ENTERED this 25th day of June, 2008, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF 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 25th day of June, 2008. COPIES FURNISHED: Mary L. Young Post Office Box 5452 Tallahassee, Florida 32314 Elizabeth T. McBride, Esquire Florida A & M University Office of the General Counsel Lee Hall, Suite 300 Tallahassee, Florida 32307 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Glen Bassett, Esquire Renee S. Gordon, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399
Findings Of Fact The Petitioner was first employed by the Liberty County School Board as a classroom teacher for the school terms 1971-72, 1972-73 and 1973-74 as an English classroom teacher. For the school year 1974-75, the Petitioner was employed for a fourth year as a teacher by Respondent. In November of 1974, the Petitioner requested and was granted maternity leave through the end of the school year, i.e., June 6, 1975. It is undisputed that during the first three school years of the Petitioner's employment with Respondent, her employment was pursuant to an annual contract. However, what is in dispute, is Petitioner's claim that during her fourth year of employment with Respondent, such employment was pursuant to a continuing contract. According to Petitioner, the then principal at the school in which she was employed recommended that she be reappointed for her forth year of employment pursuant to a continuing contract as did the then superintendent of schools, Tom Fairchild. Thereafter, on May 4, 1974, the School Board met and voted favorably on the Superintendent' s recommendation. In this regard, the minutes of the May 4, 1974, meeting of the school Board do not disclose the contractual status approved by the Board, i.e., annual or continuing. 1/ During the summer of 1975, Petitioner advised her principal that she would not be returning for the 1975-76 school year. Accordingly, the principal employed another teacher to replace her. Shortly thereafter, Petitioner informed the principal that she had changed her mind and wanted to teach the 1975-76 school year. She was not, however, rehired, as the position had been filled. During the summer months of 1975, Petitioner had several conversations with her then principal, Jerry Johnson. Initially, during her conversations with Principal Johnson, Petitioner related to him that she thought that she would be returning to her position for the 1975-76 school year. During the latter part of July, Principal Johnson explained to Petitioner the necessity for her to make a final decision with respect to her returning to her position, since he needed to hire a replacement if she was not returning. At that point, Petitioner remarked that, "I think I need to take another year's leave." Mr. Johnson remarked, "Well, we hate that you are not coming back, but if you feel that's best for the baby, I'm supportive of you." Within a few days, Petitioner called Mr. Johnson back and advised, "just pretend I didn't talk to you the other day. I want my job back." At that point, Mr. Johnson remarked, "Vicki, I wish you had told me. I have just hired somebody else." To this, Petitioner remarked, "Well, what do you mean you just hired so00body else. I am on a continuing contract, you know." Mr. Johnson remarked, "Well, I know, but you've got me in an awkward position. This boy has got Board connections." Petitioner remarked, "Well, it couldn't have been more than a verbal agreement. He couldn't have signed anything yet because you don't sign a contract this early in the year." 2/ Mr. Johnson remarked, "Well, that's true but everybody is going to be awfully upset. I can't tell him he doesn't have a job now, and I've told him he has one." Later, Mr. Johnson asked Petitioner to submit a letter of resignation to which Petitioner never responded. Prior to the beginning of the school year in either late August or early September of the 1975-76 school year, Petitioner visited the principal's office in Bristol and explained to him that while she did not want to force the issue, via a lawsuit in a small community, she would appreciate it if she was given the first teaching position that cane open in the school system. (TR 23, 24 and 25.) The Petitioner testified that she was ready, willing and able to work during the 1975-76 school year. Petitioner received a call from Mr. Johnson during October of 1975 wherein he inquired if she was ready to return to work. Petitioner responded that she was ready and had been since the summer. Mr. Johnson indicated that he had a teaching position opening up; however, that position never materialized inasmuch as the teacher who was supposed to have resigned, Carolyn Larkins, needed an additional year of employment for retirement purposes. Petitioner was not assigned to a position at any time during the 1975-76 school year. Toward the end of the 1975-76 school year, Petitioner again informed her principal of her continuing request to be assigned. When no assignment was given her at the beginning of the 1975-76 school year, the Petitioner, out of economic necessity, accompanied her husband to Maine where he had obtained employment. Petitioner made it plain to her principal that she still sought employment with the Board and would return to Florida if and when an assignment was offered her. Finally, in November, 1976, approximately two months after the Petitioner left Florida, her principal assigned her to a teaching position and she returned and resumed teaching in the school system. Petitioner was given an annual contract for the 1976-77 school year and inquired why she was being asked to sign an annual contract. Her principal advised her that it was "customary" to do so. The Petitioner remained on the assignment the remainder of the 1976-77 school year. At the end of the 1976-77 school year, the present Superintendent of Schools, Laquita Shuler, recommended and the Respondent School Board approved, the Petitioner's continued employment. The Petitioner taught the entire 1977-78 school year. During the 1977-78 school year, Petitioner was again tendered an annual contract for execution which she refused to sign. Petitioner, before the School Board meeting in December, 1977, contended that she had a continuing contract and the Board took no action on her contention. At the end of the 1977-78 school year, Petitioner was not recommended for continued employment by the Superintendent. This was so, despite the favorable recommendation of her principal. Petitioner, at all times subsequent to the end of the 1977-78 school year, has been refused further employment by the Respondent. The Petitioner has made efforts to obtain employment during the interim; however, her interim earnings have been minimal. Since her separation from the Liberty County School Board, the Petitioner has been ready, willing and able to work.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is hereby, RECOMMENDED: That the Respondent, School Board of Liberty County, make the Petitioner whole for wages including her loss of pay during the 1975-76 school year, her pay from the start of the 1976-77 school year through November 16, 1976, when she was reassigned to her teaching position, her pay from the start of the 1978- 79 school year through the date of her reinstatement, as well as the expenses incurred by the Petitioner as a direct and approximate result of the Respondent's actions. RECOMMENDED this 30th day of April, 1979, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675
Findings Of Fact Petitioner has been employed in the Department of Psychiatry, College of Medicine, University of Florida, as an Instructor in Social Work since May, 1974. Petitioner completed her undergraduate work in sociology in 1963 at the University of Chile, and earned a master's degree in social work at the University of Kansas in 1974. The Master's of Social Work degree is the terminal degree in Petitioner's field. Since her initial employment, the Petitioner's duties and responsibilities have remained virtually unchanged. She has been assigned to Adult In-patient Services in the Department of Psychiatry at J. Hissis Miller Health Center in Gainesville, Florida, and has been required by the terms of her faculty assignment to devote approximately twenty-five percent of her time to the medical degree program; thirty-two percent of her time to house staff training; twelve percent of her time to teaching/research; and twenty-eight percent of her time to non-instructional patient care, with the remaining portion of her time devoted to various other duties. Petitioner's primary responsibility was providing health care services to patients and instructional services to house staff members, medical students and students from various other disciplines. Petitioner's teaching responsibilities were not performed in the classical classroom setting, but were accomplished in a clinical setting, with some responsibility for guest lecturing outside the hospital. As a non-tenured instructor in the Department of Psychiatry, Petitioner was appointed on a year-to-year basis, and her contracts of employment were for a full twelve-calendar-month period. Sometime in 1975, the Chairman of the Department of Psychiatry furnished to Petitioner a copy of the Board of Regents Policy Manual which included the factors necessary for evaluation in order for an employee in Petitioner's position to achieve tenure. Among these factors was included a provision concerning participation in "research and other creative activities." Accordingly, it is specifically found that all times material hereto, Petitioner knew, or should have know, that research and creative activities were among the factors upon which she would be evaluated should she purse a tenured position at the University of Florida. From Petitioner's initial employment in 1974, through the time she submitted her tenure application in 1978, no written evaluations of her performance were made. In fact, the only written evaluations of Petitioner's instructional efforts during her entire employment period were generated in conjunction with her application for tenure and promotion. Although Petitioner spoke occasionally with her department chairman concerning the advisability of scholarly activity leading to the publication or other dissemination of her work in the academic community, she was never advised of any deficits in the area of "teaching" until after she applied for tenure. In late 1978, when Petitioner was in her fifth year of non-tenured employment at the University of Florida, she was considered for tenure and promotion in accordance with tenure policies of the Respondent and the Board of Regents. In the course of this consideration, three areas of Petitioner's performance were evaluated: service; research and other creative activities; and teaching. Petitioner's rendering of health care services in the context of her clinical duties falls into the area of "service" in connection with her application for tenure. The evidence in this proceeding clearly establishes that Petitioner is an outstanding clinician, and has proven very effective in performing her resonsibilities in the areas of group, individual and family therapy, and follow-up care planning. Petitioner has also been active in establishing a rape counselling program in the Gainesville area, and although she has served on no university-wide committees, it does not appear that she was invited to do so, or that she could have done so absent such an appointment or invitation. With respect to the area of "research and other creative activities," the record establishes that Petitioner has prepared two articles, one of which was accepted for publication but was not, in fact, published due to the untimely demise of the journal in which the article was to have been published. In addition, since evaluation of her tenure application by Respondent, Petitioner has delivered a paper to a meeting of the American Psychiatric Association. Another social worker who applied for and was granted tenure in the Department of Psychiatry contemporaneously with Petitioner's application had published six or seven articles in scholarly journals, an had been active in speaking engagements in her area of research and scholarship. With respect to the "teaching" element of Petitioner's tenure application, as previously noted, no written teaching evaluations existed in Petitioner's personnel file from the time of her employment in 1974 until the time of her tenure application in late 1978. In response to requests from both Petitioner and the Chairman of the Department of Psychiatry, various psychiatrists and social workers who were familiar with Petitioner's teaching, both as students and fellow faculty members, submitted letters which were almost uniformly laudatory of Petitioner's teaching ability. In addition, during December 1978, sixteen faculty evaluation forms were distributed to faculty members in the Department of Psychiatry soliciting their evaluations of Petitioner's teaching ability. Of these sixteen faculty members, only ten attempted to rate Petitioner as a teacher. The evaluation form required the evaluator to assign a number value to Petitioner's teaching ability with "a" indicating outstanding ability; "2", above average ability; "3", average ability; "4", unsatisfactory performance, and "5", totally inadequate performance. These number values were assigned in each of the following seven teaching areas: depth and newness of knowledge; admits lack of knowledge when appropriate; ability to convey information; receptive to new ideas or criticism; genuinely interested in teaching; stimulating teacher; and, in relating to patients, does teacher convey compassion and concern for the individual. In addition, the form provided for some indication of the extent of contact the evaluator had had with Petitioner, the form of that contact, and for discussion of strong and weak points of Petitioner's teaching ability, together with any additional comments that the evaluator might choose to make. The results of this evaluation were that, of the ten people evaluating Petitioner's teaching ability, three gave her an overall rating of "Outstanding"; two evaluated her as "Above Average"; three considered her an "Average" teacher; one thought her to be "unsatisfactory"; and one evaluator felt her to be "Totally Inadequate". Interestingly, only six of the ten persons evaluating Petitioner's teaching ability indicated that they had sixteen or more hours of contact with her as a teacher during the entire five-year period of her employment at the University of Florida. Further, there is no indication in any of the documents admitted into evidence in this proceeding, or in any of the testimony at final hearing whether those evaluating Petitioner's teaching ability did, in fact, have sufficient knowledge in this area upon which to form a competent opinion of her performance. The Chairman of the Department of Psychiatry used the data generated from the "faculty evaluation" forms to compute a mean teaching ability score for Petitioner, which was then, in turn, compared against the "department mean". The "department mean", however, was not a true reflection of the teaching evaluations of the faculty of the Department of Psychiatry, as a whole, but included only those other candidates for tenure and promotion who were being considered at the same time as Petitioner. The record reflects that, in addition to social workers, members of as many as four other disciplines were being considered for tenure and promotion in the Department of Psychiatry at the same time as Petitioner. Consequently, Petitioner was neither being compared against the entire faculty of the Department of Psychiatry, nor against other social workers employed in the Department, either tenured or non-tenured. Petitioner was evaluated below the departmental mean in each of the seven separate areas of evaluation mentioned above, and her overall mean rating of 2.70 was also below the department mean of 1.89. After Petitioner's tenure packet, including teacher evaluations and other back-up data, was prepared, it was submitted to the Tenure committee of the Department of Psychiatry, which voted seven to three, with one abstention in favor of granting tenure to the Petitioner. The Chairman of the Department of Psychiatry then forwarded Petitioner's tenure packet to the Dean of the College of Medicine with his recommendation that she be granted tenure, which, in effect, made the departmental vote eight to three, with one abstention in favor of granting tenure. While not directly relevant to this proceeding, the Departmental vote taken on the promotion of Petitioner from the rank of Instructor to Assistant Professor was eighteen to four, with two abstentions, in favor of promotion. Petitioner's tenure packet was submitted to the Tenure Committee in the College of Medicine, which committee consisted of seven members. Two members of the committee were assigned as the primary and secondary reviewers of the application, one of whom testified at final hearing in this cause that the faculty evaluation forms themselves were not furnished to the committee, and that the committee was not advised that Petitioner's mean scores were compared to a departmental mean consisting of only those other faculty members being considered for tenure at the same time. This particular committee member was under the impression that the department mean against which Petitioner was compared consisted of all members of the faculty in the Department of Psychiatry. The vote of the College of Medicine Tenure Committee was six to one against the granting of tenure, with the only affirmative vote being that of the Chairman of the Psychiatry Department. In his letter advising the Chairman of the Department of Psychiatry of the outcome of the vote before the College Tenure Committee, the Dean of the College of Medicine wrote that: As you are aware, a candidate for promotion or tenure should be highly qualified in at least two or three areas: teaching, research or service. The only area in which Mrs. Vera appears to have strength is the area of service as research is almost non-existent and her teacher evaluations range from average to less than average. As a matter of policy, the University of Florida Personnel Board, in considering grants of tenure, looks for a demonstration of strength in at least two of the three areas of evaluation. Situations have existed in which tenure has been granted upon a showing of competence in the remaining two areas. The Personnel Board, as a matter of course, looks for teaching ability above departmental average in those persons being considered for tenure. In addition, it is customary practice at every level of the tenure granting process not to afford a tenure applicant an opportunity to appear in person before the various tenure committees. Both Petitioner and Respondent have submitted proposed Findings of Fact in the course of this proceeding. To the extent that those Findings of Fact have not been adopted in this Recommended Order, they have been rejected as not having been supported by the evidence, or as having been irrelevant to the issues under consideration herein.
Recommendation Based upon the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that a Final Order be entered by the President of the University of Florida requiring that Petitioner's appointment as a non-tenured social work instructor in the Department of Psychiatry, College of Medicine, University of Florida, be extended for a period of at least one year, or such longer time as may be necessary to properly evaluate Petitioner's teaching performance in accordance with applicable statutes and rules and regulations promulgated by the Board of Regents and the University of Florida. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 20th day of February, 1980. WILLIAM E. WILLIAMS Hearing Officer Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of February, 1980. COPIES FURNISHED: Selig I. Golden, Esquire Post Office Box 1251 Gainesville, Florida 32602 Ashmun Brown, Esquire University Attorney's Office 207 Tigert Hall University of Florida Gainesville, Florida 32611
The Issue Whether Respondent violated the Florida Civil Rights Act of 1992, as alleged in the Charge of Discrimination filed by Petitioner on November 30, 2000.
Findings Of Fact In November 1999, Respondent, Stetson University, (Stetson) advertised for applicants for a tenure track position on its faculty to begin in August 2000. The position was in the Department of Mathematics and Computer Science. The position advertisement read as follows: Stetson University invites applications for a tenure-track position beginning August, 2000. A Ph.D. in mathematics is required. Rank and salary will be commensurate with experience. The duties include teaching a broad range of undergraduate courses to both majors and non-majors, maintaining a program of scholarly activity, and undertaking university service. The teaching load is three courses per semester. Salary is competitive. The successful candidate will exhibit an enthusiasm and talent for teaching, support department standards for student performance, and contribute to the intellectual life of the department. Because all students in the College of Arts and Sciences must undertake a senior project, candidates should be committed to fostering undergraduate research. An interest in interdisciplinary work or applied mathematics is a strong plus. Stetson, Florida's first private university, is a small selective university of 2000 students. We are located in DeLand, Florida, 40 miles from Orlando and 20 miles from Daytona Beach. The department consists of seven mathematicians and four computer scientists, and has a variety of computing resources available, including computer- equipped teaching laboratories. Further information about out department is on our web page: http:www.Stetson.edu/departments/ mathcs/. Please send the following to the address below: letter of application, curriculum vitae, AMS cover sheet, a statement of mathematical interests, and a statement of teaching philosophy as it pertains to a liberal arts curriculum. Also arrange for three letters of reference, at least one of which addresses teaching. Dr. Grady Ballenger is Dean of the College of Arts and Sciences at Stetson. During the search to fill the faculty position in question, Dr. Ballenger appointed four individuals to serve on a search committee. He appointed Dr. Margie Hale as Chair of the committee, Dr. Erich Friedman, Dr. Michael Branton, and Dr. Kevin Riggs. Drs. Hale and Friedman, are faculty members in the mathematics department; Dr. Branton is Chair of the math department. Dr. Riggs is a faculty member of the physics department. Stetson routinely appoints one person from outside the department for which the position is advertised to serve on a faculty search committee. Dr. Hale sent a letter dated November 10, 1999, to Petitioner acknowledging that Stetson received his application. The letter also included the following: “Please make sure you have arranged for all of the items requested (listed below) to reach us as soon as possible.” The items listed at the bottom of the letter are “AMS cover sheet, letter of application, curriculum vitae, a statement of mathematical interests, a statement of teaching philosophy as it pertains to a liberal arts curriculum, three letters of reference, at least one of which addresses teaching.” The search committee used a system of stickers whereby each person had a particular color sticker. When a member of the search committee read and evaluated the file, the appropriate color sticker was placed on the file. The reader would place a check mark on the sticker which indicated the reader felt favorably about the application, an “X” if the reader was not interested in the application, and left it blank if the application was considered midline. Files that received two or more checks were put in a stack for further review. Stetson received at least 220 applications for the advertised position. The search committee narrowed the applicants to approximately 30 for further review. Petitioner’s application was not among the 30 finalists. Of those 30 finalists, 24 were interviewed at a national meeting held each year. The meeting is a joint meeting of the Mathematical Association of America and the American Mathematical Society. Drs. Friedman and Branton conducted those 24 interviews. The other finalists who did not attend the conference were interviewed by phone. After Drs. Friedman and Branton returned from the conference, the committee met and discussed Drs. Friedman and Branton’s evaluations of the persons interviewed. The committee narrowed the applicant pool to six finalists who were invited for an interview. By this time, the search had expanded to attempt to fill two faculty positions in mathematics. Of the six persons who received interviews on campus, an offer of employment was first extended to Dr. Hari Pulapaka. Dr. Pulapaka accepted the offer. Stetson intended to make an employment offer to one other of the six finalists. However, that candidate withdrew from the search. The decision was made not to offer employment to any of the remaining four finalists. Instead, two additional candidates were brought to campus for interviews. Of these last two finalists, an offer of employment was made to Denise Szecsi, who accepted the offer. Dr. Pulapaka received a Ph.D. from the University of Florida in 1995. His cover letter expressed a strong interest in Stetson, specifically referencing its mathematics department’s emphasis and experience with interdisciplinary curricula, its small classes, and his desire to return to Florida. His application included the required AMS cover sheet, a separate and detailed statement of teaching philosophy as it pertains to a liberal arts curriculum, a separate and detailed statement of mathematical interests, a detailed vitae which included institutions taught and during what time frames, and numerous publications and presentations, including dates of publication. Five confidential and current letters of reference were sent to Stetson on behalf of Dr. Pulapaka. The search committee selected Dr. Pulapaka because of his strong credentials outlined above and found his teaching philosophy and mathematical interests to be in sync with what they were looking for. Additionally, the search committee strongly preferred confidential letters of reference, i.e., letters of reference sent directly to Stetson, because it meant that the applicant had not seen them. Dr. Pulapaka clearly met the qualifications specified for the position. At the time she applied for the advertised faculty position, Denise Szecsei was what is referred to in academic circles as “ABD” which means all but dissertation. In that regard, she had completed all of her coursework to earn her Ph.D. and defended her dissertation shortly after interviewing for the position. During the interview process, the committee contacted Dr. Szecsei’s advisor to ensure that she was close to completion of her Ph.D. Dr. Szecsei had her Ph.D. in hand when she started employment at Stetson. Dr. Szecsei’s application packet included the required AMS cover letter, a separate statement of teaching philosophy, a separate statement of her research interests in mathematics, and a detailed vitae which included references to strong academic honors (i.e., she is a member of Phi Beta Kappa and graduated magna cum laude when she received her bachelor’s degree). Moreover, Dr. Szecsei’s cover letter noted that she had teaching experience in a variety of academic environments including the military, community college and university. It referenced her interest in living in Central Florida and her knowledge of Stetson. Four confidential and current letters of reference were sent to Stetson on behalf of Dr. Szecsei. The committee found Dr. Szecsei’s teaching philosophy and research interests to be impressive. It was clear to the committee that teaching was Dr. Szecsei’s main focus. Her letters of reference were confidential and current. In a memorandum recommending her to Dean Ballenger, a member of the search committee commented on Dr. Szecsei’s extra academic credentials, i.e., in addition to her Ph.D. in mathematics, she was close to having a master’s degree in chemistry, she had much more teaching experience than the typical new Ph.D., and she gave the best classroom performance of any candidate he had observed since he had been at Stetson. Petitioner argues that Dr. Szecsei was not qualified for the position because she did not have her Ph.D. in hand at the time of the application. That argument is rejected. Stetson made certain that she was to receive her Ph.D. before her employment began and, indeed, she had her Ph.D. in hand when she began working there. Dr. Szecsei in that and all other respects was a qualified applicant for the advertised position. Petitioner holds a B.A. in physics from the University of California, Berkeley, an M.A. in mathematics from Sacramento State College, and a Ph.D. from the University of California, Riverside. His resume does not indicate in what years he received his degrees. His resume lists numerous publications, participation in many presentations and seminars, but does not mention the dates of any of them. Petitioner’s application packet does not contain the required AMS cover sheet. There is no separate statement of mathematical interests or statement of teaching philosophy, but he referenced his academic interests and areas of mathematical interest in his cover letter. Petitioner's several letters of reference were not confidential, i.e., he included them with his application packet, were not addressed to Stetson, and were not current (the dates of the reference letters ranged from 1986 through 1994). Petitioner’s application does not indicate his age. Petitioner argues that his age can be inferred from references to certain dates in his letters of reference. For example, one letter of reference states that Petitioner received his Ph.D. in 1968. Another letter of reference mentions that Petitioner taught at a particular university from 1971 to 1981. In any event, Petitioner now informs that he was born in 1936. The search committee noted that Petitioner did not submit an AMS cover sheet as required. Despite this omission, the search committee reviewed Petitioner’s application packet and made several observations. Drs. Hale and Friedman noted that Petitioner’s cover letter appeared to be generic in nature with no specific reference to Stetson. Dr. Friedman noted that Petitioner addressed research before teaching indicating to him that Petitioner may have a stronger interest in research than teaching. Moreover, Dr. Friedman described Petitioner’s cover letter as "not polished." The fact that Petitioner’s reference letters were not confidential in nature was a negative factor. The lack of specific reference to teaching positions was a significant negative factor in the eyes of the committee. Petitioner’s expectation that a search committee which received approximately 220 application packets would search through letters of reference to piece together employment and teaching history is unrealistic and unreasonable. The search committee’s failure to do so does not indicate in any way that they engaged in any type of discrimination. Further, the lack of dates regarding years of teaching, publications, and participation in presentations, etc., made it impossible for the search committee to know how recent his teaching experience was. The undersigned is persuaded that the search committee did not wade through the letters of recommendation to calculate his approximate age. Other than Petitioner’s omission of the AMS cover letter, Petitioner was qualified for the job in question. However, there were many applicants and many qualified people who were not granted an interview. There is no competent evidence that Stetson used age as a criterion in its determination of who would and who would not be hired for the mathematics position. On the contrary, the preponderance of the evidence demonstrates that age was not a factor in the selection process.
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 4th day of March, 2004, 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 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of March, 2004.
The Issue The issue is whether Respondent engaged in an unlawful employment practice pursuant to chapter 760, Florida Statutes, against Petitioner due to his age.
Findings Of Fact Petitioner was employed by Respondent as an Employee Relations Specialist from July 30, 2007, to March 7, 2008. Petitioner’s position as an Employee Relations Specialist was a full-time salaried exempt position. Throughout Petitioner’s employment, Mary Campbell was the Director of Human Resources for Respondent, and William Davis was the Human Resources Manager for Respondent. Campbell was Petitioner and Davis’s direct supervisor. On March 6, 2008, Petitioner submitted a letter of resignation to Campbell, effective Friday, March 7, 2008. Pursuant to Respondent’s termination policy, salaried exempt employees are expected to provide a minimum of four weeks’ notice of their resignation, and failure to do so could block their eligibility for rehire and payment of accrued paid time off (PTO). Petitioner failed to provide the required four weeks’ notice when he resigned his employment with Respondent. Petitioner understood that resigning with less than four weeks’ notice would block his eligibility for rehire, but, despite that understanding, he chose to resign on such short notice because he was starting a new job the next Monday. Petitioner expressed that understanding in his resignation letter, stating: “I understand the ramification of my early resignation but my future employer will not hold a position for thirty days.” (Resignation letter, Respondent’s Ex. 1). On March 7, 2008, Campbell signed a Personnel Action Notice relating to Petitioner’s resignation of employment, stating that “Dwayne Clark resigned his position for another opportunity without proper notice, accepting the consequences of losing PTO and rehire eligibility.” Campbell, without the involvement of Davis, classified Petitioner as ineligible for rehire on March 7, 2008. At hearing, Petitioner acknowledged this action was not discriminatory. The Monday after his resignation, Petitioner began working for Citizens Property Insurance as a Human Resources Generalist, and was involuntarily terminated after six weeks of employment with Citizens. In July 2009, Davis was promoted to Director of Human Resources after Campbell resigned from her employment with Respondent. On April 15, 2011, Richard Rivera was hired by Respondent as the Human Resources Manager. Prior to that, Rivera was employed by University of Florida Shands Medical Center’s (UF Shands) Human Resources Department, which shares the same building with Respondent’s Human Resources Department. Rivera knew Petitioner as a human resources employee of Respondent in 2007/2008. However, they had never spoken prior to mediation of this matter in 2017. Since becoming Director of Human Resources, Davis has received several requests for an exception to the termination policy from former employees classified as ineligible for rehire. Though he has the authority to do so, Davis has never made an exception to the termination policy or rehired anyone who had been classified as ineligible for rehire. In July 2010 and early 2012, Petitioner asked Davis to make an exception to the termination policy and reclassify him as eligible for rehire. However, Davis did not reclassify Petitioner as eligible for rehire because “[w]hen you make an exception, you have problems enforcing the policy going forward, so that’s why I do not make exceptions.” Petitioner claims that while he was employed with Respondent, Campbell made two exceptions to the termination policy and allowed the rehire of two former employees who had been classified as ineligible for rehire. However, other than their gender and race, Petitioner could not name or otherwise identify the two former employees in a way that would allow Respondent to attempt to verify his claim. Petitioner asserted that a physician assistant (PA) had been rehired by Respondent after providing less than four weeks’ notice of her resignation. Respondent was able to identify that individual as Allison McFauls. Ms. McFauls has worked as a Senior PA since 1998 and has never been an employee of Respondent or subject to Respondent’s termination policy. Ms. McFauls has always been employed by UF Shands, which is a separate entity from UF Jacksonville Physicians, Inc., with a separate human resources department and separate personnel policies. Neither Davis nor Rivera is aware of any employee of Respondent receiving an exception to the termination policy. Davis classified Hubert Collins, an Employee Relations Manager, who is nearly 20 years younger than Petitioner, and Christy Wright, who is even younger than Collins, as ineligible for rehire due to their failures to comply with the required resignation notice period in the termination policy. During their conversation in July 2010, Petitioner asked Davis if Respondent would be interested in contracting with Petitioner’s consulting company to assist with the Office of Federal Contract Compliance Programs (OFCCP) compliance review. Respondent did not contract with Petitioner because Respondent performed compliance review work and completed its Affirmative Action Plan in-house. Davis did not ask Petitioner questions regarding his age and does not recall having a conversation with Petitioner about retirement since Petitioner’s employment with Respondent. Even if such topics of conversation occurred, Petitioner agreed he may have been the one to raise them. On September 12, 2016, Petitioner applied online for a vacant Employee Relations Specialist position with Respondent. However, due to Petitioner’s failure to comply with Respondent’s four-week notice requirement, Petitioner was ineligible for rehire with Respondent in September 2016. On September 14, 2016, Rivera reviewed the applications and selected which applicants would be interviewed and considered for the open Employee Relations Specialist position. Because Petitioner was ineligible for rehire, Rivera removed Petitioner from further consideration. Rivera did not base his decision on Petitioner’s age, and there was no persuasive evidence of record that Rivera was biased against Petitioner because of his age. On September 14, 2016, Rivera rejected Petitioner’s application in the online application system and entered “ineligible for rehire” as the reason for rejecting Petitioner’s application. The same day, Petitioner was sent a form email notifying him that his application had been removed from consideration for the Employee Relations Specialist position. No one but Rivera was involved in the decision to remove Petitioner from consideration for the position. Rivera did not inform Davis or anyone else that Petitioner had applied for the Employee Relations Specialist position. Likewise, Davis never directed Rivera or anyone else to reject applications from Petitioner. Petitioner did not communicate with Davis, Rivera, or any other employee about his September 12, 2016, application. Nor did Petitioner request an exception to the termination policy from Davis or anyone else in 2016. Davis did not know that Petitioner had applied for the Employee Relations Specialist position until November 2016, when Respondent was notified by the Commission that Petitioner had filed a charge of discrimination. After receiving Petitioner’s charge of discrimination in November 2016, Davis reviewed Petitioner’s September 2016 application, and noticed that Petitioner stated that he had resigned from his employment with Citizens Property Insurance, which Davis knew to be false. If Petitioner had been hired for the Employee Relations Specialist position, Davis would have terminated Petitioner’s employment for falsifying his application.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 30th day of November, 2017, in Tallahassee, Leon County, Florida. S W. DAVID WATKINS 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 30th day of November, 2017. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399 (eServed) Margaret P. Zabijaka, Esquire Constangy, Brooks, Smith & Prophete, LLP Suite 1700 200 West Forsyth Street Jacksonville, Florida 32202 (eServed) Jesse D. Bannon, Esquire Constangy, Brooks, Smith & Prophete, LLP Suite 1700 200 West Forsyth Street Jacksonville, Florida 32202 (eServed) Dwayne E. Clark, Sr. 11334 Bridges Road Jacksonville, Florida 32218 (eServed) Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 (eServed)
The Issue The issues presented for determination in this matter are as follows: Can the status of tenure be denied, as opposed to being granted or postponed, during the fifth year of employment? Was the tenure decision in this case based upon constitutionally impermissible reasons or a result of noncompliance with written standards, criteria or procedures prescribed by the Board of Regents or university regulations? Did respondent wrongfully determine that petitioner's employment contract would not be renewed beyond June of 1975? Was petitioner wrongfully terminated before he received a due process hearing?
Findings Of Fact Based upon the admissible oral and documentary evidence adduced in this cause, the following pertinent facts are found: Prior to coming to the University of South Florida in 1969, petitioner's educational and employment background was as follows. In 1951, petitioner received his high school diploma from a night school in Cincinnati, Ohio. After he was discharged from the United States Air Force in 1957, he worked as a commercial pilot, a Kentucky State Trooper, a sales executive, independent consultant and instructor for several private industries, and was active in the Civil Air Patrol. Petitioner completed his Bachelor of Science degree in Commerce in 1966 and his Master of Arts degree in Economics in 1967 at the University of Kentucky. During his masters program, he was awarded a nonteaching graduate fellowship and was admitted to Omicron Delta Epsilon, an economics honorary fraternity. In 1967, petitioner entered the Ph.D. program in marketing, minoring in finance, at the University of Iowa in the College of Business Administration. While attending school between 1967 and 1969, petitioner had an academic fellowship and taught an introductory course in marketing at the University of Iowa. He was enrolled in this program when he applied for a teaching position in marketing with respondent in March of 1969. In response to his application for a teaching position at the University of South Florida, petitioner received a letter from the Chairman of the Marketing Department stating in part, "This assistant professorship opening calls for a person holding the Ph.D. or D.B.A. degree, or expecting completion of the degree in 1969 or early 1970." On the Personnel Data Form required to be completed by respondent, petitioner stated that he would be available in September of 1969, preferred a full-time teaching and research position as assistant professor of marketing and expected to receive his Ph.D. from the University of Iowa in February or June of 1970. Petitioner's appointment as Assistant Professor of Marketing in the College of Business Administration was confirmed by President John S. Allen in April of 1969, and he continued in that position until June of 1975 under six annual contracts. At the time of his appointment to USF in 1969, petitioner had completed the course work for his Ph.D. in the College of Business Administration at the University of Iowa, but had not yet completed all, of his comprehensive examinations. In 1970, petitioner was unsuccessful in two attempts to pass the economic theory comprehensive written examination. Because of this and his low grades, he was terminated from the Ph.D. program in the College of Business Administration. In June of 1970, petitioner enrolled in the University of Iowa College of Education doctoral program majoring in business education. He first failed the marketing examination in the College of Education, but later passed it with reservations. Having completed his comprehensive examinations in that program, petitioner returned to USF to teach. The testimony and evidence is conflicting as to whether petitioner's colleagues and department chairman had knowledge that petitioner was no longer pursuing his Ph.D. degree in business administration. Many of petitioner's colleagues testified that they had no such knowledge. While his chairman stated that he knew of petitioner's educational status, he advised the USF Vice- President for Academic Affairs in March of 1974 that petitioner was pursuing his degree from the College of Business at the University of Iowa and that he was "not pursuing a degree in Distributive Education as was alleged." Petitioner's progress on his doctoral dissertation is somewhat in dispute. Apparently, in July of 1971, he submitted a research proposal entitled "Sales Training and Placement of the Disadvantaged," and an informal doctoral student seminar was held on July 28, 1971 to critique the proposal. However, in June of 1972, the Chairman of Business Education at the University of Iowa informed petitioner that "the next step in our program will be for you to develop your research proposal for your dissertation and submit it to me." There was no evidence that Petitioner has done any significant work toward the completion of his dissertation since the submission of his proposal in July of 1971, despite a written warning from his department chairman at USF in June of 1973 that "it is essential that you make substantial progress on your doctoral degree," and a memo dated January 17, 1974, from Dr. Kallaus at the University of Iowa Business Education Department stating that "the dissertation just has to have 'top billing' in order for you to complete your program within the time requirements." Apparently, petitioner has until February of 1978 to complete his dissertation for the Ph.D. in the College of Education at the University of Iowa. Petitioner would still like to obtain his Ph.D. degree but does not know when he will do so. He states that he does not place great emphasis on the actual worth of a dissertation and considers it to be just another research project. While one witness testified that writing a dissertation had not helped him much, every other witness who had written a dissertation and attained his Ph.D. felt that the writing of a dissertation was extremely valuable in teaching, in grading papers, in relating to students and in the acquisition of research skills. There was testimony from two of petitioner's colleagues in the Department of Marketing that in the Fall of 1971, petitioner asked them both if they would be willing to write a portion of his dissertation for him. These conversations were never reported to the Chairman, the Dean or any other person, with the possible exception of one other faculty member. Thus, it does not appear that this played any part in the tenure decision under consideration herein. Petitioner denied having ever asked anyone to write his dissertation. While he may have asked for help with the mechanics of using the computers or the refinement of statistics, the research proposal was already completed and thus he needed no further help, according to petitioner. As noted above, petitioner was continuously employed under annual contracts as an assistant professor of marketing, a tenure-earning position, from September of 1969 through June of 1975, and received pay raises each year. During this period of time, annual evaluations for the purpose of pay raises were performed. For the fiscal year 1972/73, petitioner ranked sixth out of eleven in priority for a pay raise. On a five point scale, the department chairman ranked petitioner three on teaching effectiveness, and four on research and creative activity, academic advisement, service and overall quality. For the fiscal year 1973/74, a committee consisting of five faculty members rated petitioner on a three point scale as a two in the areas of teaching effectiveness, research and creative activity, academic advisement, service and overall quality. The committee noted that the rating on teaching effectiveness was a high two, while the research rating was a low two. For the same year, petitioner was rated by his chairman as three in teaching effectiveness and two in the other four areas. Petitioner was again evaluated in July of 1975. The faculty evaluation committee rated him between 2.0 and 2.6 on a three-point scale in all five areas; and the chairman rated him as a one in all categories except service, for which petitioner was rated as a two. At the time petitioner was hired by respondent, the Florida Board of Regents and the respondent defined tenure as that condition attained through highly competent research and teaching, or other scholarly activities, length of service, and contributions to society. The guidelines for tenure from that time to the present include a requirement for a high degree of competency in the areas of teaching, research or other scholarly activities and service. It has also been a guideline that normally the faculty member shall have completed five years of continuous service and shall have attained the terminal degree before being eligible for tenure. In addition to these written criteria and guidelines for tenure promulgated by the Florida Board of Regents and adopted by respondent, tenure was discussed by various witnesses. It was opined that in order to receive tenure, a faculty member should be of above average competency in at least two of the three areas of teaching, research and service. Others stated that a faculty member should be above average in all three areas, unless he clearly excelled in one area. Still another felt that the faculty member should excel in all three areas before being granted tenure. Average was defined in terms of everyone in the profession, not merely those in one's particular department or college. It was explained that the importance of having a terminal degree is that such a degree implies that certain standards of competence have been met. The status of tenure is important in that it guarantees the faculty member academic freedom and it gives the University time to evaluate how the faculty member will use such freedom. The Dean of petitioner's College further felt that an important criteria or guideline to be used in determining tenure recommendations is the high probability of continued high quality performance and professional growth in the faculty member, as well as the availability of significantly better qualified people, at equal cost, outside the University. It was agreed that with the coming of a new Dean in the Fall of 1973, more emphasis has been placed on research in the College of Business Administration. In January of 1974, which was the middle of his fifth year of continuous employment at USF, petitioner was considered for tenure. Pursuant to this, he prepared what is known as a "tenure packet" for consideration by those who would be voting on the issue. AT this time, it was the practice for the tenured faculty members of the Marketing Department to review said tenure documents and vote by secret ballot as to whether the petitioner would be granted, denied or deferred tenure status. Comment was also solicited by the department chairman from the nontenured faculty members. At this point the chairman reviewed all materials presented and made his recommendation to the Dean of the College of Business Administration, and the Dean made his recommendation to the Vice-President for Academic Affairs. In this case, petitioner prepared his "tenure packet," utilizing a standardized form and supplementing it with additional materials and correspondence. Petitioner's "packet" was approximately one inch thick and was reviewed by all those casting a vote on the tenure issue. After reviewing said packet, the three tenured faculty members of the Department of Marketing unanimously voted to grant petitioner tenure. At least two of the three tenured members also wrote letters of recommendation on his behalf. Several other persons from outside the Marketing Department also wrote letters of favorable recommendation to the department chairman. The chairman also solicited the responses of nontenured department faculty members by means of a peer evaluation form. Apparently, these forms were not utilized by said faculty members in the manner contemplated. Some apparently did not respond at all, and those who did provide a written response did so by comments, rather than by assigning numerical ratings to the items for evaluation. One faculty member concluded that petitioner "is qualified in view of his outstanding relationships with the local business community." Another refused to pass judgment upon the tenure issue inasmuch as he felt tenure should be abolished. However, he did relate to the chairman that he felt that the research and writing presented in petitioner's tenure document was methodologically questionable. He also questioned the reliability of the survey taken by petitioner to support his teaching ability and the inclusion of formal and informal letters and evaluations dealing with the distributive education courses taught by petitioner through the College of Education (See Finding 12 below). This same faculty member wrote favorably of petitioner's accomplishments in the area of service, but concluded that petitioner "would perhaps find more satisfaction and more recognition of his accomplishments in the area of distributive education than in the Marketing Department." A third non-tenured faculty member suggested that there was a degree of bias with regard to the questionnaire soliciting comments regarding petitioner's teaching effectiveness and that it was impossible to determine whether the data obtained refers to marketing or distributive education courses. This faculty member also felt that petitioner's talents and interests lay elsewhere than in the Marketing Department and that one who would make a greater contribution to the Marketing Department could be obtained at a lower price. He therefore did not feel that petitioner should be granted tenure in the Marketing Department. A large portion of petitioner's tenure packet is composed of student comments received as a result of a questionable mailed by petitioner to his former students. Petitioner was of the opinion that evaluation of teachers by graduates after a period of time was more meaningful than the present student evaluations. Department funds were used to mail these surveys and petitioner prefaced it with a letter to his former students. This letter contained the following language: "Many times in class I said that you would never really know the value of your classes until later. Now it is later; and I need your help. As you know my teaching methods and objec- tives are rather controversial. My appli- cation for tenure and promotion must be submitted on January 15th, and I would like to include in this application your comments as to the effect (good or bad) if any, that I as a teacher have had on your career. If you have the time please include a short note on what you are doing. Teachers seldom know what happens to their former students. I want to thank you in advance for doing this on such short notice. Good luck." It was felt by most witnesses questioned on the subject that the use of such a cover letter and the form of the questions contained in the survey could produce only biased results. The chairman of the Marketing Department reviewed the materials discussed in paragraphs 9 through 12 above and recommended that petitioner be granted tenure, concluding that petitioner had maintained a consistent pattern of productivity over the past five years in teaching, research, writing, presenting programs and service. It was believed by the chairman that petitioner's efforts in all areas would continue at a rapid pace and that "it would be difficult if not impossible to replace this man with one so dedicated and with his unique talents considering his present rank and salary." The chairman praised his service activities and called him an innovative teacher. He remarked that "Professor Wallace is the only person in Marketing (other than Professor Stevens) who appears willing to work with Distributive Education or other units of the University on interdisciplinary programs." With regard to the area of research, the chairman remarked in part that "Some of his research efforts have been some- what misdirected to other than scientific or theoretical marketing per se, but the results of such efforts are applicable to Marketing Education, Distributive Education, and general Business Education. His research methodology is at times technically ques- tionable; however, he has been asked to pre- sent papers and be on discussion panels for the Southern Marketing Association and the American Marketing Association. His articles have appeared in refereed and non-refereed journals..." The Dean of the College of Business Administration reviewed petitioner's tenure packet, the secret ballot by tenured faculty members, letters of recommendation, comments by some nontenured faculty members, and the opinions and recommendation of the Department Chairman. The Dean recognized that petitioner had good rapport with students and had emphasized a practical approach in teaching by taking classes out to businesses. However, it was felt that petitioner's skills seemed "more in salesmanship and organizing ability than in academic analysis and scholarship" and that "he would be more at home practicing in the business world than teaching in the academic world." Dean Dye felt that what was lacking in the marketing faculty were persons evidencing a high degree of scholarship and noted that petitioner had not yet completed his doctoral studies. It was felt that good people, with terminal degrees and research drive were available and should be sought, and that it was not in the best interests of the University to grant petitioner tenure. Dean Dye did not philosophically disagree with petitioner's articles, but felt they were neither scholarly nor based on competent research methodology. The Dean has not seen any significant results done in the area of research by petitioner. As for the area of service, Dean Dye felt that petitioner's efforts were above average in quantity, but below average in quality. With Dean Dye's recommendation, the tenure documents were then sent to Dr. Carl Riggs, Vice-President for Academic Affairs. Dr. Riggs declined to recommend the granting of tenure in petitioner's case, thus supporting the recommendation of Dean Dye. When petitioner requested the reasons for his negative recommendation, Dr. Riggs restated the reasons stated or implied in Dean Dye's explanation of tenure recommendation. These were: "1) No terminal degree and lack of compen- sating experience or background. An apparent lack of scholarship, i.e., depth of knowledge in field, and scholarly productivity not sufficiently evident. Your strengths supplement rather than complement those of other faculty in this department and the need for complementation is greater. Interests of the Department and College better served by finding a replacement who can perform or perform better those functions needed by the Department of Marketing and the College of Business Administration." Riggs was of the opinion that the University could attract persons more qualified than petitioner and that petitioner had done no significant research in the area of marketing. While Dr. Riggs may have disagreed somewhat philosophically with the opinion-type articles written by petitioner, he thought they were refreshing. His decision to deny tenure to petitioner was not based on a difference of opinion with the views expressed in petitioner's writings, but rather because he felt petitioner's articles were not based upon competent research methodology. Riggs acknowledged petitioner's success in the area of service and distributive education. Riggs further stated that neither politics nor petty dislikes or jealousies within the College of Business Administration played any part in his consideration of whether petitioner should be granted tenure. The process of evaluation for tenure recommendation was thus completed, having travelled the following route: preparation by petitioner of his tenure packet; the favorable vote of the department's three tenured faculty members; the receipt of comments from some of the nontenured faculty; the favorable recommendation of the Department Chairman; the negative recommendation of the College Dean; and the negative decision of the Vice-President for Academic Affairs. Petitioner was thereafter timely notified on March 15, 1974, by the Vice- President for Academic Affairs that his employment would not be renewed after Quarter III of the academic year 1974/75, and that the last day of employment with the University would be June 19, 1975. Informal grievance proceedings within the university were thereafter instituted by petitioner. Failing to achieve a satisfactory result from such proceedings, petitioner filed his complaint seeking a plenary hearing. This complaint was forwarded to the Division of Administrative Hearings, and the undersigned Hearing Officer was ultimately assigned to conduct the plenary hearing. The evidence presented at the hearing does suggest that there was some unrest and difference of opinion within both the Department of Marketing and the College of Business Administration. It appears that the Marketing Department was divided into two factions, identified by witnesses as the "qualitative" and "quantitative" factions. There was also some dispute within the College regarding Dean Dye's hiring practices and criteria and guidelines for tenure decisions. While much time and evidence was devoted to the existence of these factions and disputes, it cannot be found from the evidence that their existence tainted the procedures for tenure evaluation in this case. The evidence adduced at the hearing clearly illustrates that petitioner's highest level of competence lies in the area of service to the community. He has built a good rapport with many Tampa businessmen and has organized various business meetings and seminars. Many of those businessmen who testified acknowledged that for the first time they were drawn to the University as a result of petitioner's efforts in a Top Management Seminar and a Career Development Program. Some members of the Marketing Department testified that petitioner was the outstanding member of the department in the area of service to the community. The Vice-President for Academic Affairs agreed that petitioner was doing one of the better jobs within the College of Business Administration in the area of service to Tampa businessmen. While a few members of the faculty did not feel that petitioner's presentation at the Top Management Seminar evidenced scholarship, most Tampa businessmen who testified praised petitioner's efforts as demonstrating a contemporary approach to business problems and a working, practical knowledge in the filed of marketing. With regard to petitioner's efficiency in the area of teaching, it has already been pointed out that petitioner received predominantly average to above average ratings by his peers over the six years in question. A number of his former students testified and concluded that petitioner was one of the best teachers they had ever had. They stated that they worked hard in petitioner's classes and learned more in his classes than in other classes. Some testified that petitioner's courses were more difficult and demanding then other business courses. Petitioner stressed the application, rather than the mere memorization, of theory and sent this students out to various businesses to prepare research projects. Some of his former students described him as dynamic, interesting, resourceful and well-prepared for class. Other faculty members thought petitioner to be sincerely interested in practical education and in helping his students. The graduating seniors of 1974 voted petitioner one of the top ten teachers of the University of South Florida. There was evidence that petitioner's student evaluations improved markedly in 1973. One marketing professor attributed this to the fact that petitioner stopped giving written examinations and his students received higher grades. The evidence illustrates that in 1972, petitioner's student evaluations were at approximately the college median level. In 1972, he gave his students 17 A's, 100 B's 34 C's, 4 D's and 11 F's. In 1973 his student evaluations were consistently above the college median level. In that year the grade distribution to students was 138 A's, 64 B's, no C's, 1 D and 1 F. Other reasons were, however, offered for the increase in high grades, such as student motivation, change of teaching methodology and the quality of student who registers for the course based upon the reputation of the teacher as being hard or easy. A faculty member who substituted for petitioner testified that petitioner's students had not read the course syllabus or the textbook. Others testified that. sending students to various businesses to do research projects was not innovative, and that other members of the marketing department utilized similar techniques. Of the three areas for evaluation, it was the conclusion of some that petitioner's weakness lies in the area of research and other scholarly activities in the field of marketing. His progress on his dissertation has been previously discussed. While he has written a number of published articles, the evidence shows that most of these can be classified as opinion articles or essays, rather than as articles based upon competent research methodology. Several articles and papers are in the area of business education, not marketing. There was some testimony that these articles, many of which are variations on the same theme, constituted comments on relevant social issues, and should not be measured on the basis of whether they are scholarly and methodologically sound. Yet, Petitioner attached his professional credentials to these articles and listed them in his tenure documents under the heading of scholarly publications. The Dean of the College of Business Administration and the Vice-President for Academic Affairs, who voted against petitioner for tenure, testified that the main reason for not granting tenure was lack of a terminal degree and lack of evidence of scholarly research. Although some disagreed philosophically with the articles written by petitioner, their vote to deny tenure was not based on this fact, but upon the fact that the articles did not display evidence of competency in scholarly research. Petitioner was instrumental in getting other marketing professors to write articles for Florida Trend Magazine, but he himself did not participate in the writing of the series of articles which appeared. Petitioner also listed in his tenure documents that he was working on a book. There was evidence that no progress, in written form, has been completed to date on said book, although petitioner stated in his tenure documents that "the basic research has been completed." Petitioner did obtain six teaching grants from the State Department of Education. However, these grants were in the area of distributive education or in the field of training teachers and were obtained through the College of Education, not the College of Business Administration. The evidence concerning petitioner's degree of competency in the area of research and other scholarly activities with regard to seminars and outside consulting work is conflicting. While many indicated they were pleased with petitioner's performance in the seminars and consulting work, others expressed displeasure with petitioner's performance. Petitioner has received recognition for his publications. He has presented papers to the Southern Marketing Association, and was nominated for the American Association of Collegiate Schools of Business - Western Electric Fund Award. These presentations were, however, more in the field of business or distributive education than in marketing.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is recommended that the complaint be dismissed for the reason that petitioner did not meet his burden of demonstrating the unlawfulness of the tenure and nonrenewal decisions reviewed herein. Respectfully submitted and entered this 26th day of ,January, 1976, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9676 COPIES FURNISHED: William D. Holland, Jr., Esquire Suite 304, First National Bank Building 215 Madison Street Tampa, Florida 32602 D. Frank Winkles, Esquire & William E. Sizemore, Esquire of Shackleford, Farrior, Stallings & Evans P.O. Box 3324 Tampa, Florida 3324 Dr. Cecil Mackey, President University of South Florida ADM 241 Tampa, Florida
The Issue The issue in the case is whether the Petitioner is entitled to licensure as a psychologist by the State of Florida.
Findings Of Fact On February 6, 1995, the Petitioner filed an application for licensure by examination as a psychologist in the State of Florida. During its regular meeting of February 9-11, 1995, the Respondent considered and rejected the Petitioner's application. By letter dated February 13, 1995, the Respondent notified the Petitioner that his application had been denied. On May 11, 1995, the Respondent filed a Notice of Intent to Deny the application. The Notice appears to have been signed on April 20, 1995. The Notice of Intent identifies the basis for the denial as follows: In voting to deny the application, the Board found that the applicant's program did not require coursework in biological bases of behavior, cognitive-affective bases of behavior, or statistics. Moreover, the program did not require an internship that met the requirements of Rule 59AA-11.0061(3)(j), F.A.C. Prior to commencement of the hearing, the parties resolved the issue related to coursework in the Petitioner's favor. The issue remaining for hearing is whether the Petitioner's educational program required an internship that met the requirements of the cited rule. The parties have stipulated that the Petitioner has 1660 of acceptable pre-doctoral internship hours. The Petitioner has also submitted 2340 hours of post-doctoral supervised experience. Post-doctoral experience may be used to augment pre-doctoral hours if the post-doctoral experience meets the requirements of Rule 59AA-11.003(30(j), Florida Administrative Code. The evidence fails to establish that any of the 2340 hours meet the requirements set forth for pre-doctoral experience. The evidence is insufficient to establish that, beyond those hours to which the parties have agreed, any of the Petitioner's remaining internship/experience hours meet the applicable requirements.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Agency for Health Care Administration, Board of Psychological Examiners, enter a Final Order denying the Petitioner's application for licensure by examination as a psychologist in Florida. RECOMMENDED this 19th day of December, 1996, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 19th day of December, 1996. COPIES FURNISHED: Dr. Kaye Howerton Executive Director Board of Psychological Examiners Agency for Health Care Administration Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Jerome Hoffman General Counsel Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building 3 Tallahassee, Florida 32308 Robert Jacobs, Pro Se 1114 Evening Trail Drive Wesley Chapel, Florida 33543 Allen R. Grossman Assistant Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399
The Issue Whether Respondent should be required to pay Petitioner’s claimed overpayment of salary as calculated in the amount of $2,603.86, for the pay periods between July 2, 2007, and July 26, 2007, and whether the effective date for modification in salary as assigned by Petitioner should be consistent with the date of Respondent’s amended contract.
Findings Of Fact Respondent is currently employed as a tenured associate professor in the FAMU College of Pharmacy and Pharmaceutical Sciences (COPPS). At all times material, he has been a tenured employee of FAMU. He currently resides in Tampa and is responsible for developing a professional experience program from Tampa to Orlando, Florida. Although at hearing Respondent orally requested reimbursement of his travel expenses to the hearing, at no time prior to hearing did he object to the scheduling of hearing in Tallahassee, Florida. His oral request is here treated as a motion, to be resolved in the following Conclusions of Law. Herein, FAMU contends that $2,603.86,1/ amounting to 1.9 pay periods (July 2, 2007-July 26, 2007), constitutes an overpayment of salary FAMU made to Respondent in the capacity of interim dean, together with concomitant federal tax considerations. FAMU now seeks reimbursement from Respondent. Respondent’s first employment contract appointing him to serve in an administrative capacity as interim dean and associate professor for COPPS shows a signature on a line provided for “President/Provost/Vice-President” on June 16, 2004, acceptance by Respondent on July 1, 2004, and appointment dates of August 8, 2004, through August 7, 2005. That contract provided for an approval by the president or the president's designee. Prior to that first interim appointment, Respondent was employed in COPPS as an associate dean and associate professor, and Dr. Henry Lewis III was employed as Dean of COPPS. In 2007, Respondent signed three contracts, only the first of which was for employment as interim dean. All 2007 employment contracts referenced throughout this Recommended Order specified that: This employment contract between Florida A&M University Board of Trustees and the employee is subject to the constitution and laws of the State of Florida, the rules and guidelines of the Board of Governors, the regulations of the University Board of Trustees (BOT), and in accordance with Article 6, Nondiscrimination, Article 1.3, Employment Contract, and Article 20, Grievance Procedure and Arbitration of the United Faculty of Florida (UFF) contract with Florida A&M University. Neither this employment contract nor any action or commitment taken pursuant to it, is final or binding upon the parties until, and unless, the signature of the University President, [sic] President’s designee, as approving authority and the signature of the employee have been affixed and the employment contract has been returned to the appropriate authority as specified herein. The signature of the employee affixed hereto shall not be deemed a waiver of the right to process a grievance with respect hereto. * * * ... This offer of employment will be withdrawn and not processed for payroll if this employment contract is not signed and returned to the appropriate authority within twenty (20) days from the date of offer. (Emphasis supplied.) Faculty employment contracts are prepared by the Office of the Provost and Vice President of Academic Affairs and forwarded to the FAMU Payroll Office for appropriate processing and payment. All contracts in evidence have been treated by all parties as valid, regardless of whether they bear FAMU’s president’s signature or the signature of anyone on his behalf signed on the president's "line." Presumably, this is because the signator for the vice-president/provost was the president's "designee" with final approval authority on behalf of the president. At no time has Respondent ever filed a grievance with regard to any 2007, employment contract. Respondent’s first 2007, employment contract reflected an administrative appointment as interim dean and associate professor. It was offered on May 31, 2007; was executed by Respondent on June 15, 2007; and was signed by someone on FAMU's President's signature line on June 22, 2007. Thereby, Respondent was employed at an annual salary rate of $158,417.00, and a biweekly amount of $6,069.61. The period of appointment specified was from July 1, 2007, through June 30, 2008. At all times material, FAMU Board of Trustees Policy No. 2005-15 has provided, in pertinent part: Application This policy applies to employees holding both a tenured faculty position and serving as a senior administrative and academic officer of the University, but who are leaving their senior administrative and academic office to return to the tenured faculty or an administrative position. Examples of such positions are the vice presidents, assistant or associate vice presidents, deans and directors. Lack of Property Interest in Office Senior Academic and Administrative Officers are employees “at will”; thus, the President may not purport to confer on any officer a period of employment of fixed duration or otherwise confer any property interest in such employment. However, such an officer may be appointed to a period of employment as provided in Rule 6C3-10.105 Florida Administrative Code, so long as the instrument accomplishing such an appointment status states clearly that the incumbent officer is subject to removal at any time, during that period, at the option of the President. [sic] Joint Appointments Tenure status as a member of the faculty, held concurrently by any Senior Academic and Administrative Officer of the University is separate and distinct from the administrative office, and such tenure status is governed by the provisions of Rule 6C-10.211, Florida Administrative Code. Those tenure rules and regulations have no bearing upon and do not govern the administrative appointment covered by these regulations, and the Senior Academic and Administrative Officer does not have tenure in his or her administrative positions. Return to a Faculty Position A Senior Academic and Administrative Officer who holds a concurrent tenured faculty appointment may return to that appointment with all the rights and responsibilities of faculty in his or her original department . . . The salary of the administrator shall be adjusted . . . to a . . . faculty salary. (Emphasis supplied.) None of Respondent’s 2007, contracts contain any language about "subject to removal at any time at the option of the President," but both parties herein have signed new contracts on that basis. At all times material, FAMU Board of Trustees Policy Number 2005-19, has provided, in pertinent part: 4. Salary Overpayments The University will seek reimbursement for salary overpayments and as stated in federal and state laws and policies. [2/] In a letter dated June 28, 2007, FAMU President-Elect James H. Ammons offered Dr. Henry Lewis III the position of Dean of COPPS. Dr. Lewis accepted the position as dean in a letter dated July 2, 2007. Also on July 2, 2007, a general faculty meeting was held. At that time, President Ammons introduced his leadership team and announced that Dr. Lewis had been reinstated as Dean of COPPS. Respondent was present when this announcement was made. A contract as Dean of COPPS was offered by the Provost/Vice-President to Dr. Lewis on July 3, 2007. Dr. Lewis executed the contract on July 3, 2007. The copy in evidence does not show any signature by the President or on his signature line. This contract reflects Dr. Lewis’s retroactive appointment as Dean of COPPS for the period July 1, 2007, through June 30, 2008, the same period as was set forth in Respondent’s then-existing contract as interim dean. (See Finding of Fact 9.) In a letter dated July 9, 2007, and received by Respondent on July 12, 2007, President Ammons notified Respondent, “pursuant to FAMU Regulations 10.102 and 10.105,” of Respondent’s “change-in-assignment and removal of administrative duties as interim dean of” COPPS, “effective to June 30, 2007.” Respondent was further informed thereby that his duties and responsibilities as an associate professor would be provided to him by Dean Lewis. The letter also states, in pertinent part: In addition, your annual salary will be adjusted in accordance with the rules and regulations of the FAMU Board of Trustees. A new employment contract reflecting this employment action will be subsequently provided to you. (Emphasis supplied). FAMU Regulation 10.102, provides, in pertinent part: * * * (9) An employee assigned to an acting appointment (temporary change in assignment), in instances in which responsibilities have changed, may be provided a pay increase. Upon the employee’s return to his or her original responsibilities, the pay may be adjusted to the employee’s responsibilities. (Emphasis supplied.) * * * (11) When the assignment of Faculty serving in an administrative position such as Vice President, Dean, Director, or Department Chair is changed, the pay and appointment period shall be adjusted to reflect the new responsibilities. Pay adjustments shall be completed in accordance with the Board of Trustees Policy No. 2005-15 (Separation and Return of Senior Administrative and Academic Officers to Faculty), as now or hereafter amended. (Title underlined in original; other emphasis supplied.) FAMU Regulation 10.105, provides, in pertinent part: (3) Appointments (e) No appointment shall create any right, interest, or expectancy of continued employment. . . . FAMU Regulation 10.209, provides, in pertinent part: Change-in-Assignment of Faculty and administrative and Professional Employees The President or President’s designee may for the best interests of the University, at any time, assign a Faculty or Administrative and Professional (A&P) employee to other institutional assignments only after consultation with the employee and the departments or other units affected. Regardless of the change-in-assignment, however, the University is committed to compensate the employee. Employees whose assignments are being made in conjunction with a nonreappointment [sic] shall be reassigned pursuant to Regulation 10.207.[3/] This regulation shall only apply to a change in assignment when nonreappointment [sic] is not intended by the University. Work assignments are grievable pursuant to Regulation 10.206. Dean Lewis testified credibly that, following some conversations between himself and Pharmacy Director Angela Hill, Respondent’s class and teaching assignments were made on his behalf by Director Hill. Dean Lewis expected Respondent to immediately begin to prepare to teach four sections of medical terminology for the 2007, fall semester, as referenced on an Assignment of Responsibility Form. The date of the first of these classes was August 27, 2007, and there is no evidence that Respondent did not start teaching that class on that date. However, Respondent did not acknowledge the Assignment of Responsibility Form by signing it until August 29, 2007. Director Hill did not sign it until August 30, 2007, and Dean Lewis signed it on September 7, 2007. Respondent was not assigned any administrative duties or responsibilities as interim dean after July 2, 2007, inclusive of the period in dispute, July 2, 2007, through July 26, 2007. Although he testified that between July 2, 2007, and August 27, 2007, Respondent did some work in the Dean’s office, closing out unspecified administrative matters left in his tray, the greater weight of the evidence reflects that Respondent did not perform any identifiable administrative duties or responsibilities as interim dean after July 2, 2007. Moreover, Respondent requested, and Dean Lewis granted him 88 hours of annual leave for the dates of July 9, and July 16-27, 2007. A new faculty employment contract administratively appointing Respondent as associate professor was offered/signed by the provost/vice-president, on August 10, 2007, and signed by Respondent on either August 10, or August 22, 2007 (the date has been scribbled over), for the period from July 1, 2007, through June 30, 2008. It bears no signature on President Ammons' signature line. This contract reflects an annual associate professor salary rate of $106,442.00, and biweekly amount of $4,078.23. Based upon that first 2007, associate professor contract (see Finding of Fact 25), Respondent’s biweekly salary was supposed to be modified to $4,078.24, beginning with the August 17, 2007, pay-date. However, for the pay-dates between July 2, 2007, and July 26, 2007, FAMU continued to pay Respondent a biweekly amount of $6,069.61, as if he were still interim dean. (See Finding of Fact 9.) Due to a salary amount error made on the first 2007 associate professor contract (see Finding of Fact 25), a revised contract was generated by Academic Affairs. It is clearly labeled “revised” and shows an offering date of September 20, 2007, signed by the provost/vice-president; was signed by Respondent on September 21, 2007; and bears no signature on the president's line. This second, revised 2007, associate professor contract, yet again reflects the appointment dates of July 1, 2007, to June 30, 2008, as did the 2007, interim dean contract (see Finding of Fact 9), and the same appointment dates as the first 2007, associate professor contract (see Finding of Fact 25), but it bears a corrected annual salary rate for associate professor of $122,648.00, and biweekly amount of $4,699.15. Pursuant to this second/revised 2007, associate professor contract, FAMU’s payroll office took steps to correct Petitioner’s salary information, and Respondent began receiving the corrected weekly amount of $4,699.15, beginning with his October 12, 2007, pay-date. Respondent did not then, and does not now, contest the annual salary rate or biweekly amount reflected on this revised contract. In a letter dated October 4, 2007, Jacqueline Lester, FAMU’s associate director of payroll, informed Respondent that, due to an administrative error, FAMU had overpaid him (at the rate of interim dean) by a net amount of $1,748.07. Her letter also informed Respondent that, “Pursuant to Volume V, Section VI of The Bureau of State Payrolls Manual, Office of the State Comptroller,” FAMU’s payroll department was required to recover the overpayment from him. She requested that Respondent refund the overpayment amount, and provided him options of how to accomplish repayment. If he selected neither option, there would be involuntary reductions from his future salary checks. Respondent was obliquely advised of the federal tax consequences of a delay in repayment by a blank form attached to Ms. Lester’s October 4, 2007, letter, which blank form Respondent was requested to fill out and sign in acknowledgment that: I understand that if the full payment is not made by 12-31-2007, the payment amount will be recalculated to include withholding taxes that were deducted from the overpayment. This recalculation will result in an increase in the amount due because the withholding taxes paid cannot be recovered by the state. Petitioner never signed the foregoing form. Ms. Lester’s October 4, 2007, letter also informed Respondent that he had a right to request an administrative hearing, pursuant to Section 120.57, Florida Statutes. By a letter dated October 15, 2007, Respondent requested an administrative hearing. On October 12, 2007, before Respondent requested his hearing, FAMU paid Respondent additional gross pay in the amount of $2,483.68. FAMU provided this additional payment to pay Respondent the wages construed as underpayment beginning with the August 17, 2007, pay-date, due to the annual salary error on his first 2007 associate professor contract. In other words, the October 12, 2007, payment brought Respondent’s biweekly salary up to the appropriate amount of $4,699.16, for an associate professor (see Finding of Fact 27) and reimbursed him for the lesser and incorrect salary amount listed in the first 2007, associate professor contract(see Finding of Fact 25), which incorrect amount had been paid out between the August 17, 2007, and October 12, 2007, pay-dates, apparently covering the period of July 27, 2007, to September 20, 2007. Respondent accepted this money from FAMU. Respondent did not immediately get a Section 120.57(1), hearing upon his October 15, 2007, request. Instead, he got a meeting with Ms. Lester and Ms. Carucha Nelson. Ms. Nelson was Ms. Lester’s subordinate who had in-put Respondent’s salary information. Respondent did not then, and does not now, disagree with FAMU’s salary calculations. He only disagreed/disagrees with "the period that the [revised] contract covered." During their meeting, Ms. Lester told Respondent that he needed to talk to someone in FAMU’s Academic Affairs Department about his primary dispute over the beginning date of his faculty employment contract and that she would take no final action to recoup any money from him until his contractual concerns were resolved. She further told him that his questions about his contract commencement date had to be resolved in order for her to re- calculate, and orally advised him of the tax consequences if the dispute were not resolved by December 31, 2007. Although Ms. Lester testified that she considered this meeting to constitute the administrative hearing Respondent had requested,4/ it is clear that both Ms. Lester and Respondent assumed Respondent would have to get some additional action from the provost’s and university attorney’s office(s) before any FAMU decision about the money became final. On November 8, 2007, Respondent e-mailed the provost. Respondent received no response by November 16, 2007, so on November 16, 2007, Respondent e-mailed Ms. Lester, inquiring what else he could do to get a hearing. She e-mailed him back to the effect that contractual issues should be referred to FAMU’s Academic Affairs and Human Resources Departments, and gave him a hierarchy and/or chronology of persons to contact. On November 19, 2007, she warned him that the matter must be resolved before December 31, 2007. Respondent copied appropriate persons with the foregoing series of e-mails, without specifically requesting an administrative hearing. No one contacted Respondent about this again in 2007. Ms. Lester continued to hold the recoupment in abeyance. FAMU took no final agency action throughout 2007. After an exchange of letters in March 2008, Ms. Lester once again requested that Respondent repay salary overpayments for the period of July 2, 2007, through July 26, 2007, in the amount of $2,603.86. Apparently, this corrected amount included withheld amounts of 2007, federal income tax, which FAMU remitted to the Internal Revenue Service on Respondent’s behalf during 2007, and which amounts Respondent had not reimbursed to FAMU before the end of that year. FAMU ultimately recognized a March 25, 2008, letter from Respondent as a request for formal hearing, and on or about August 20, 2008, the case was referred to DOAH, resulting in this proceeding. Respondent has not refunded any money to FAMU.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered requiring Respondent to repay $2,603.86, to Florida Agricultural and Mechanical University. DONE AND ENTERED this 26th day of January, 2009, in Tallahassee, Leon County, Florida. S ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of January, 2009.
The Issue Whether Petitioner Rayburn should have been re-nominated and reappointed by Respondent as a teacher aide.
Findings Of Fact Petitioner, Doris Faye Rayburn was employed by the School Board of Leon County, Florida from 1973 to 1977: 1973-74 teacher aide, Nims Middle School; 1974-75 teacher aide, Nims Middle School; 1975-76 secretary/bookkeeper, Nims Middle School, later transferred during the school year to a teacher aide position at Nims Middle School; 1976-77 teacher aide, Nims Middle School. She was not reappointed for the 1977-78 term and thereupon filed a grievance procedure and then a petition for this administrative hearing. Petitioner's contract of employment as a teacher aide each year was for 180 days and included the right to participate in the State Personnel Retirement System to accumulate sick leave, and participate in the payroll deduction plan for 12 months insurance coverage. Thirty-six of the 165 teacher aides employed by the School Board in 1976-77 were not reemployed including Petitioner. The procedure for employment of teacher aides is by a recommendation from the Principal to the School superintendent, a nomination by the Superintendent and subsequent approval by the School Board. This procedure takes place each year for each teacher aide. Petitioner was not promised reemployment and was not reemployed. The principal testified that his decision not to recommend Petitioner for reemployment was not based alone on her comments to the Superintendent's wife or for things she had said concerning the operation of the school, although he was aware of her activities. There were some complaints about Petitioner "over- stepping" her job and posing as a counselor. After the expiration of Petitioner's last contract two assistant principals urged the Principal not to recommend Petitioner for future employment. Petitioner satisfied at least two guidance counselors with whom she worked. She is active and interested in school activities. Petitioner feels that she was not reappointed because of things she said concerning the school and its policies. She wanted to be reappointed and had so planned. Petitioner contends: Petitioner was denied employment as a result of exercising her first amendment right of freedom of speech. Mrs. Rayburn voiced her general concerns about the quality of education provided by the school system. These comments were within her right as a public employee, parent and citizen to publicly comment on events of community interests and her speech did not disrupt the efficiency of providing educational services. Section 231.141, Florida Statutes, gave Mrs. Rayburn an objective expectation in her employment as a teacher aide, protected by the fourteenth amendment. That she had "de facto" tenure and should have been reemployed. Respondent contends: Petitioner was a "non-instructional employee" and not entitled to tenure under the statutes. The fact that Mrs. Rayburn had been appointed to four previous years and the fact that 78 percent of the 1976-77 teacher aides were reemployed did not give Petitioner a constitutionally protected interest in continuing employment. That the incident of the comments Petitioner made regarding the school policy to the School Superintendent's wife was not constitutionally protected speech and that there is no showing that the Superintendent's decision not to again nominate her for employment as a teacher aide was related in any way to any speech or communication by Petitioner.
Recommendation Dismiss the petition. DONE AND ENTERED this 9th day of June, 1978, in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Joyce Davis, Esquire Steven Seliger, Esquire Legal Services of North Florida, Inc. 822 North Monroe Street Tallahassee, Florida 32303 C. Graham Carothers, Esquire Ausley, McMullen, McGehee, Carothers & Proctor Post Office Box 391 Tallahassee, Florida 32302 Michael Dodson, Esquire Post Office Box 391 Tallahassee, Florida 32301
Findings Of Fact At all times material to these proceedings, Petitioner received his salary from two sources: the University of South Florida College of Medicine and the James A. Haley Veterans Administration Medical Center (Haley V.A.). As a special condition of his employment with the University, Petitioner also received a salary supplement which was derived through the College of Medicine Faculty Practice Plan. In consideration for the supplement, Petitioner agreed to assign all rights to fees or other compensation for medical services rendered by him during his employment term to the College of Medicine Faculty Practice Plan (Practice Plan). In spite of the wording of the employment contract with the University, Petitioner has never been expected to assign his salary from his position at the Haley V.A. to the Practice Plan. V.A. salary is excluded from the assignment process because of the relationship between the Haley V.A. and the University. The Haley V.A. is an institution that operates as a "Dean's Hospital". Essentially, this designation means that a V.A. Hospital and a College of Medicine in the same locale operate under a personnel and resource sharing policy. For example, if a surgeon is needed by both the Haley V.A. and the University, the two institutions will share in his or her appointment. The individual's salary is paid proportionately by each institution based upon their respective need for his or her services in a forty hour work week. The time is broken down into segments measured by eighths (8ths) known as full time equivalents (FTEs). A forty hour work week consists of 8/8 FTEs. The dual appointments of a physician under the sharing agreement customarily occur in the following manner: An advisory board known as the "Dean's Committee" at the College of Medicine recommends the dual appointment to the V.A. Hospital. The Professional Standards Board at the hospital evaluates the applicant after he or she has completed a separate application for employment with the Veterans Administration. Once a recommendation for appointment and salary level from the Professional Standards Board is received by the Medical Center Director, the applicant is either granted or denied the V.A. appointment. If an appointment occurs, the University then enters into an employment contract for the remaining FTEs with the physician. Although the two institutions work together and have parallel staffing in many of their Departments, each institution is responsible for hiring and managing its own employees. This autonomy is required because the institutions have different missions. The Petitioner accepted dual appointments to the University's College of Medicine and the Haley V.A. in 1979. His original appointments were for 5/8 FTEs as Staff Surgeon in Peripheral Vascular Surgery at the Haley V.A. and 3/8 FTEs as an Associate Professor of Surgery at the University. Petitioner's employment at the Haley V.A. began on June 1, 1979. His employment at the University began on September 1, 1979. Petitioner's clinical competence, research and development accomplishments, surgical skills and teaching abilities are unassailable in both institutions. The attempted attacks on these talents during hearing were ineffective. When Petitioner assumed his responsibilities at both institutions, he eventually became head of the vascular surgery program at the Haley V.A. and Director of the Division of Vascular Surgery with the College of Medicine, a parallel position. Although Petitioner's services were originally allocated as 5/8 FTEs to the Haley V.A., both institutions knew his career goals were always focused upon his teaching position at the University and his administrative responsibilities there as Director of the Division of Vascular Surgery. During his early years at both institutions, Petitioner's responsibilities at each facility grew and became more demanding. Petitioner naturally focused on his primary career goals at the University and delegated many of his V.A. responsibilities to extremely competent physicians under his direction. In 1986, the Chief of Surgery at the Haley V.A. took steps to enforce the required tours of duty for academic doctors with V.A. appointments. Audits at another Dean's Hospital had revealed that the academic staff there had been lax in fulfilling the time requirements demanded by their individual employment contracts. This administrator did not want a similar occurrence at his hospital. On November 16, 1986, the Chief of Surgery asked the V.A. doctors he supervised to sign an affirmation of intent to work the amount of hours required by their individual appointments. Petitioner signed the affirmation and acknowledged that he would work 50 hours at the Haley V.A. during every two week time period, in accordance with his 5/8 FTEs V.A. appointment. Petitioner was unable to meet these hourly requirements during the biweekly time allocations. He voluntarily reduced his V.A. appointment from 5/8 to 4/8 FTEs, effective May 8, 1988. After his V.A. appointment reduction, Petitioner was still unable to meet the biweekly time requirement of 40 hours at the Haley V.A. Administrators at the V.A. wanted him to be physically present in the hospital during the time he spent on V.A. matters. Petitioner believed he was unable to comply with this requirement because of his obligations at the University. As Director of Vascular Surgery, he was responsible for the vascular surgery portion of the Residency Program at the Bay Pines V.A. Hospital in St. Petersburg and the Tampa General Hospital in downtown Tampa. On June 15, 1988, the Acting Director of the Haley V.A. corresponded with the Chairman of the Department of Surgery at the University. The Chairman at the University was notified by letter that a decision had been made to terminate Petitioner's V.A. appointment. The anticipated termination date was July 16, 1988. A discussion with the Chairman regarding this matter was requested by the Acting Director at the V.A. The Chairman replied to this letter on June 28, 1988. He advised the Acting Director that he had placed the matter on the Surgery Mini-Dean's Committee meeting scheduled for July. Petitioner did not receive copies of the correspondence between the Acting Director at Haley V.A. and the Chairman of the Department of Surgery at the University. Petitioner was not aware of the discussions between the University and the V.A. regarding the further reduction of his FTEs at Haley V.A. On August 23, 1988, Petitioner was advised in writing that his salary for the 1988/89 academic year had been budgeted at $145,000.00. This figure included his salary from the Haley V.A., the State of Florida and other funds within the USF Department of Surgery which were derived through the College of Medicine Faculty Practice Plan. He was also approved to receive a salary supplement of $30,000.00 should his productivity and funds in the Division of Vascular Surgery allow for this additional amount. These additional funds would have come from profits made within the Division and assigned to College of Medicine Faculty Practice Plan, according to the usual operating procedure. On August 24, 1988, Petitioner was offered his tenured 3/8 FTEs at the University. The length of the appointment was from August 8, 1988 to August 7, 1989. His salary from the Florida Legislature funding lines was scheduled as $23,801.00. As a special condition of employment, he was advised that his salary may be supplemented with funds derived through the College of Medicine Faculty Practice Plan, in consideration of his agreement not to engage in patient case activities other than as a faculty member. Petitioner accepted the contract on September 1, 1988. On September 27, 1988, Petitioner was advised by the Chairman of the Department of Surgery at the University that the Haley V.A. wanted to make changes in his appointment at that institution. On November 21, 1988, the Chief of Staff at the Haley V.A., the Dean of the College of Medicine and the Chairman of the Department of Surgery had a meeting regarding Petitioner's 4/8 FTEs at Haley V.A. Petitioner was not aware of the meeting nor was he invited to attend. The chief of staff at the V.A. advised the University that he was going to ask Petitioner to resign 3/8 of his remaining FTEs at the V.A. effective December 4, 1988. If he had failed to agree, the action would be taken administratively. The Dean told the Chairman of the Department of Surgery that he would approve supplementing Petitioner's total salary from funds received through the College of Medicine Faculty Practice Plan. The Dean and the Chairman agreed to restore Petitioner to the salary level he would have received that academic year if he had not had 3/8 FTEs from the Haley V.A. removed from his compensation. Although a letter was sent to Petitioner requesting resignation of a portion of his FTEs, he did not resign his 3/8 FTEs on December 4, 1988. On December 5, 1988, his V.A. appointment was converted to an intermittent appointment of 1/8 FTE by the Director of the Haley V.A. The Dean of the College of Medicine authorized a salary adjustment for Petitioner at the University. Petitioner was to be paid a salary equaling the level of salary he had expected for the year prior to the V.A. action. This additional salary compensation was derived through the College of Medicine Faculty Practice Plan. During the 1988/89 academic year, Petitioner was allocated the same total amount of compensation from all sources after his V.A. FTEs were reduced because of the approved increase in his compensation from the College of Medicine Faculty Practice Plan. Petitioner filed a grievance against the University for the reduction of his V.A. FTEs on February 3, 1989. The grievance filed with the University has no basis in law or fact because the Haley V.A. has the right to reduce the FTEs of its own employees. When one of the parties to the "Dean's Hospital" personnel sharing policy decides it does not want to continue to assign a certain number of FTEs to an employee, the other institution does not have a concomitant responsibility to provide that employee with a forty hour work week. The shared employee has two separate employment contracts. Petitioner has been continuously aware that his employment at the Haley V.A. was separate from his employment at the University. In his Memorandum to the Chairman of the Department of Surgery dated October 3, 1988, he wrote: ". . . that any decision regarding changing (sic) in my appointment status with the V.A. is entirely their responsibility." After the Haley V.A. reduced Petitioner's appointment to an intermittent 1/8 FTE, he was required by the Chairman of the Department of Surgery to cooperate with the Haley V.A. in the establishment of its vascular lab. He was also instructed to assist in the assignment of shared lab technicians under the "Dean's Hospital" sharing agreement. These two tasks were part of his duties as Director of the Division of Vascular Surgery. A meeting between Petitioner, the Department Chairman and administrators from the Haley V.A. on February 1, 1989, did not bring about a resolution of the conflicts between Petitioner and the V.A. regarding the hospital's creation of its own vascular lab. The Chief of Staff at the Haley V.A. wrote a letter to the Chairman of the Department of Surgery and made a proposal regarding the proposed sharing agreement on the vascular lab directly to him. This letter was received by the Department of Surgery on February 14, 1989. On March 1, 1989, the Chairman of the Department of Surgery had a meeting with Petitioner. By way of memorandum dated March 1, 1989, Petitioner was directed by the Chairman to pursue activity that would lead to a resolution of the problems between his Division and the Haley V.A. In particular, Petitioner was directed to assist in the establishment of a vascular laboratory at that facility. He was given four weeks to demonstrate he was complying with these directives. He was also advised that if the Chairman did not have evidence that these directives were being followed, he would ask Petitioner to step down as the Director of the Division of Vascular Surgery. On April 27, 1989, Petitioner was informed by the Chairman of the Department of Surgery that he was being removed as Director of the Division effective May 1, 1989. The reason given for his removal was that the Chairman had not detected any significant resolution of the problems cited in the memorandum. On May 1, 1989, the Chairman took over the administrative duties of the Division. The Chairman of the Department of Surgery had the authority and discretion to remove Petitioner as Division Director. Petitioner filed his second grievance on May 18, 1989, to challenge his removal as Division Director. This grievance urges that his removal as Director was an improper action based upon the following: 1) His removal was an act of retaliation in response to his filing the earlier grievance; 2) The Chairman of the Department of Surgery was incorrect in his determination that Petitioner had not attempted to resolve his differences with the Haley V.A.; and 3) The action was unconstitutional in that it interfered with his academic freedom and freedom of speech. Petitioner's removal was not related to the filing of the first grievance. There was no evidence presented at hearing to demonstrate that Petitioner took affirmative steps to resolve the conflict with the Haley V.A. about the V.A. vascular lab after he was directed to do so by the Department Chairman. Petitioner's academic freedom and freedom of speech were not violated by the Chairman's directives issued to Petitioner in his role as an administrator. The directives were given because the Division of Vascular Surgery was not fulfilling its obligations under the sharing agreement between the two institutions. When the directives were given, the Chairman advised Petitioner that his faculty position would not be affected by his response or lack of response to these administrative directives. The controversy with the Haley V.A. about the creation of its own vascular lab was the only problem Petitioner was directed to cure to maintain his position as Director. Based upon that representation from the Chairman, the allegations about other misdeeds or misconduct are rejected as matters which are irrelevant and immaterial. Petitioner did not have contract, tenure or traditional academic rights in the administrative appointment as Director of the Division of Vascular Surgery. Division Directors within the Department of Surgery serve at the will of the Chairman. A reasonable explanation was presented for Petitioner's removal from his administrative position. There was just cause for the Chairman's action. Petitioner's perception that his removal from the directorship was a disciplinary action is without merit. It was an administrative decision predicated upon the University's need to comply with the sharing agreement. One of the main reasons Petitioner objected to the establishment of a vascular lab at the Haley V.A. was that the lab would compete with the University lab and reduce its income. This, in turn, would affect the budget of the Division of Vascular Surgery and the contributions it would be able to make to the College of Medicine Faculty Practice Plan. All of the money previously received in Petitioner's Division from the vascular lab work done on behalf of the Haley V.A. would remain in house. As a result, the salary supplements received by Petitioner through the College of Medicine Faculty Practice Plan, would decrease in amount. Petitioner actually received $145,000.00 in salary from the state funding line and the College of Medicine Faculty Practice Plan during the 1988/89 academic year. In negotiations regarding Petitioner's annual salary for the 1989/90 academic year, the Chairman of the Department of Surgery agreed to pay him a salary of $145,000.00. These funds were to be provided through state funds at 3/8 FTEs and funds derived from the College of Medicine Faculty Practice Plan. The Chairman had the discretion to disburse the Faculty Practice Plan funds in this manner. Petitioner relied upon the representation that he would receive $145,000.00 as his salary when he began the 1989/90 academic year at the University on August 9, 1989. A written employment contract for the 1989/90 academic year was not placed into evidence. In order to receive a salary of $145,000.00, Petitioner's state salary had to be supplemented monthly with $9,326.33 in Faculty Practice Plan funds. This occurred during the first quarter of the academic year. On September 22, 1989, the Chairman sent a written memorandum to Petitioner which advised him that an adjustment was being made to reduce the amount of money he received from the Faculty Practice Plan by $1,893.33 per month for the remaining three quarters of the 1989/90 academic year. This would amount to a salary reduction of $17,039.97. As his reason for the reduction, the Chairman cited the financial condition of the Division of Vascular Surgery and Petitioner's removal as Director. A third grievance was filed by Petitioner after he received the memorandum about his salary reduction. The Petitioner has continuously predicted that the Division's financial condition would suffer as a result of the loss of two vascular surgeons and the loss of the profits from V.A. vascular lab business that was formerly conducted at the University lab. Ordinarily, the Chairman has the discretion to adjust monthly salary supplements derived through the College of Medicine Faculty Practice Plan based upon the financial condition of a Division and its contributions to the Plan. This occurs because salary supplements are given to the medical faculty if they have contributed to the Practice Plan and the money is available. In this case, however, the Chairman had earmarked salary funds for Petitioner through the Plan. These funds were not a supplement, they were part of Petitioner's total salary compensation from the University. The College of Medicine chose to compensate Petitioner in this manner instead of using 8/8 FTEs provided by the State Legislature. The University has the right to decide how Petitioner's employment at the institution is funded. Petitioner is entitled to an additional $17,039.97 in salary compensation derived through the College of Medicine Faculty Practice Plan for the 1989/90 academic year.
Recommendation Based upon the foregoing, it is RECOMMENDED: The first grievance should be dismissed as the University lacks jurisdiction over the subject matter. The Chairman's decision to remove Petitioner as Director of the Division of Vascular Surgery in the second grievance should be upheld. Petitioner does not have a protected property interest in the position. Petitioner should be awarded $17,039.97 in salary pursuant to his employment contract with the University during the 1989/90 academic year. DONE and ENTERED this 19th day of November, 1992, at Tallahassee, Florida. VERONICA E. DONNELLY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of November, 1992. APPENDIX Petitioner's proposed findings of fact in his suggested Recommended Order are addressed as follows: Accepted. See HO #6. Rejected. Contrary to fact. See HO #1-#2. Rejected. Insufficient evidence. See HO #52. Accepted. See HO #8. Accepted. Rejected. Contrary to fact. See HO #29-#33. Accepted. Rejected. Contrary to fact. Accepted for the academic year 1989/90. See HO #49-#58. Rejected. Contrary to the evidence. See Conclusions of Law. Rejected. Contrary to fact. See HO #39 and #46. Rejected. Contrary to fact. See HO #32-#33, #39 and #40. Rejected. Contrary to fact and law. See HO #43-#44. Rejected. Contrary to fact. See HO #40. 15. Accepted 1988/89 and 1989/90. See HO #48 and #58. 16. Rejected. Contrary to fact. See Conclusions of law. Respondent's proposed findings of fact are addressed as follows: Current employment status beyond the scope of this hearing. Otherwise, accepted. See HO #6. Generally accepted. See HO #3-#5. Accepted. See HO #3. Accepted. Accepted. See HO #3. Accepted. See HO #6. Accepted. See HO #1. Accepted. Accepted. Rejected. Contrary to fact. See HO #49-#50. Rejected. Contrary to fact. See HO #22, #25 and #45. Accepted. See HO #20. Accepted. Accepted. Accepted. Accepted as to Division Directors. The rest is irrelevant. See HO #35. Accepted. Accepted. See HO #40. Accepted. Accepted. See HO #11. Accepted. See HO #13. Accepted. Rejected. Self serving and irrelevant. Petitioner was not required to defend against such allegations in this proceeding. See HO #7. Accepted. Rejected. Irrelevant. Petitioner was not required to defend against such allegations in this proceeding. See HO #7. Accepted. See HO #13. Accepted. See HO #14. Rejected. Hearsay. Irrelevant. See HO #5. Accepted. Accepted. See HO #23. Accepted. See HO #23. Accepted. Rejected. Immaterial. See HO #7 and #14. Rejected. Improper conclusion. Petitioner was not required to defend against such allegations in these proceedings. Accepted that Petitioner's V.A. FTE reduction was a V.A. decision. Accepted. See HO #5. Rejected. Irrelevant. See HO #22 and #24. Rejected. Irrelevant. See HO #22 and #24. Rejected. Contrary to fact. See HO #22 and #24. Accepted. See HO #25. Accepted. See HO #47. Accepted. See HO #5. Accepted. See HO #47. Accepted. See HO #47. Rejected as to causation. Not sufficiently established at hearing. Accepted. See HO #30. Accepted. See HO #32. Accepted. See HO #35 and #40. Rejected. Immaterial. See HO #7 and #42. Accepted. See HO #33 and #39. Rejected. Not established at hearing. See HO #7 and #42. Accepted. See HO #25. Rejected. Speculative. Rejected. Irrelevant. See HO #42. Rejected. Contrary to fact. See HO #49-#58. Rejected. Contrary to fact. See HO #49-#58. Rejected. Immaterial. See HO #42, #55-#56. Rejected. Immaterial. See HO #7 and HO #42. Accepted. See Conclusions of Law. Accepted. See HO #26. Accepted. See HO #36. Accepted. Accepted. See HO #55. Accepted. COPIES FURNISHED: Jeremy E. Gluckman, Esquire Gluckman & Newman, P.A. 100 Twiggs Street, Suite 220 Tampa, FL 33602 William M. Blackshear, Jr., Department of Surgery, MDC, Box 16 12901 North 30th Street Tampa, FL 33612 Thomas M. Gonzalez, Esquire Robin E. Greiwe, Esquire Thompson, Sizemore & Gonzalez 109 North Brush Street, Suite 200 Tampa, FL 33601 Joline Micelli-Mullen, Esquire University of South Florida 4202 E. Fowler Avenue Tampa, FL 33620 Bryan Burgess, General Counsel University of South Florida ADM Building 250 4202 Fowler Avenue Tampa, FL 33620-6250 Jeannette Abin Marcus, Clerk Univeristy of South Florida Administration, Room 250 Tampa, FL 33620-6250 Francis T. Borkowski, President University of South Florida Administration, Room 250 Tampa, FL 33620-6250 Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, FL 32399-0400
