The Issue Whether the Respondent, Benny O. Tjia, should be suspended from his position with the University for one semester and be required to reimburse the University for one working day?
Findings Of Fact Benny O. Tjia has been employed by the University since July 1, 1975. Dr. Tjia has been employed as an Extension Floriculture Specialist in the Department of Ornamental Horticulture of the Institute of Food and Agricultural Sciences (hereinafter referred to as "IFAS"), of the University. IFAS, including the Department of Ornamental Horticulture, provides teaching, research and extension services at the University. Dr. Tjia is a tenured Associate Professor at the University with an appointment in the Department of Ornamental Horticulture. Dr. Tjia's duties include the planning, developing and implementation of off-campus educational programs and the dissemination of research information to plant growers and the public in the area of floriculture. Dr. Tjia is the only Extension Floriculture Specialist working throughout the State of Florida. The chairman of the Department of Ornamental Horticulture, and Dr. Tjia's immediate supervisor, is Dr. Thomas Sheehan. Dr. Sheehan's immediate supervisor is Dr. John T. Woeste, IFAS Dean for Extension. On July 22, 1987, Dr. Tjia requested approval of leave with pay for the period October 12-27, 1987. The purpose of this leave was to participate as a speaker at a conference scheduled for October 15-17, 1987, and to participate in a post-conference seminar on October 22, 1987, at Massey University, New Zealand. Dr. Sheehan, in a memorandum dated August 11, 1987, approved Dr. Tjia's request for leave with pay, but only for the period of October 13-24, 1987. Dr. Sheehan advised Dr. Tjia that any additional time off would have to be taken as annual leave. Dr. Sheehan further advised Dr. Tjia that he should inform Dr. Sheehan in advance of any future negotiations for proposed out-of-state or out- of-country travel in order to avoid any embarrassment to Dr. Tjia or the University if leave is not approved. In late August, 1987, Dr. Tjia discussed with an Australian businessman the possibility of presenting a series of seminars in Australia from October 26, 1987, through November 10, 1987. Dr. Tjia decided that be would request approval of leave without pay to attend the seminars in Australia. He realized, however, that he did not have sufficient annual leave to cover the period of time he planned to spend in Australia. Therefore, Dr. Tjia requested the payment of 2,000.00 as compensation for his participation in the Australian seminars, which he believed would reimburse him for the leave without pay he would have to take from the University. During the first week of September, 1987, the Australian businessman and Dr. Tjia agreed that Dr. Tjia would participate in the seminars. Despite Dr. Sheehan's instructions to discuss out-of-county travel with him before accepting, Dr. Tjia did not inform Dr. Sheehan of, or obtain approval for, the Australian seminars before or after agreeing to participate. On Friday October 9, 1987, Dr. Tjia left a request for annual leave for the period October 26, 1987, through November 2, 1987, with Dr. Sheehan's secretary Dr. Tjia did not indicate in his request that he intended to participate in seminars in Australia during this period of time. Instead, Dr. Tjia indicated that he intended to visit relatives. On October 9, 1987, Dr. Tjia also left a request for leave without pay for the period November 3-13, 1987. Again, Dr. Tjia did not indicate in his request that he intended to participate in seminars in Australia during this period of time. Instead, Dr. Tjia indicated that he was requesting the leave for "personal reasons." Dr. Tjia did not discuss or attempt to discuss his leave requests of October 9, 1987, with Dr. Sheehan. When Dr. Sheehan received Dr. Tjia' leave requests on October 9, 1987, he attempted to contract Dr. Tjia to determine more information about Dr. Tjia's leave plans. Dr. Sheehan was unable to contact Dr. Tjia, however. After being informed that Dr. Tjia was running errands and would not return to this office on October 9, 1987, Dr. Sheehan wrote a memorandum to Dr. Tjia granting his request for annual leave on October 26, 1987, through November 2, 1987, and denying his request for leave without pay. A copy of this memorandum was left on Dr. Tjia's desk and in his University mail box and the original was mailed to Dr. Tjia's residence. Dr. Sheehan did not attempt to call Dr. Tjia. Dr. Tjia left the University on October 9, 1987. He left Gainesville, Florida, on Saturday October 10, 1987. Dr. Tjia never informed Dr. Sheehan that he intended on leaving Gainesville on October 10, 1987, instead of October 13, 1987, the first day of his approved leave. Dr. Tjia did not return to the University until November 16, 1987. Dr. Tjia was absent from the University without approval on October 12, 1987, and from November 3, 1987, through November 15, 1987. Dr. Tjia did not submit his request for approval of his proposed absence without pay until the last minute and did not wait until he determined whether his absence had been approved because he did not believe that his request would be approved. Dr. Tjia did not report to work on Monday, October 12, 1987. Dr. Tjia did not receive approval for his absence on October 12, 1987. October 12, 1987, was Columbus Day. Although Columbus Day is a Federal holiday, it is not a holiday for University personnel. Although Dr. Tjia was told by the department's administrative secretary that Columbus Day was a day, Dr. Tjia should have known that Columbus Day had not been a holiday for University personnel ever since his employment by the University in 1975. Additionally, Dr. Tjia was provided with a list of holidays in a memorandum which did not list Columbus Day as an authorized holiday. Dr. Tjia's testimony that he believed Columbus Day was a holiday is inconsistent with the fact that he requested approval of leave on July 22, 1987, for October 12, 1987. On or about October 19, 1987, Dr. Sheehan realized that Dr. Tjia had not receive the memorandum disapproving Dr. Tjia's request for leave without pay before his departure on October 10, 1987. Therefore, Dr. Sheehan telephoned Dr. Tjia's host in New Zealand an left a message requesting that Dr. Tjia call him. On October 21, 1987, Dr. Tjia telephoned Dr. Sheehan. Dr. Sheehan read his October 9, 1987, memorandum denying Dr. Tjia's request for leave without pay to Dr. Tjia over the telephone. Dr. Tjia was informed that he must return to the University on November 3, 1987 and that his failure to do so would constitute grounds for disciplinary action, including dismissal. On October 29, 1987, Dr. Sheehan received a letter dated October 23, 1987, from Dr. Tjia. In this letter Dr. Tjia indicated that he would not return to the University on November 3, 1987, as instructed by Dr. Sheehan. Dr. Tjia indicated that he would not return because he believed that his cancellation of his commitments would cause embarrassment to himself and the University. On October 30, 1987, Dr. Sheehan sent Dr. Tjia a mailgram, in care of Dr. Tjia's Australian host. Dr. Sheehan informed Dr. Tjia in the mailgram that his failure to report to the University a directed would constitute insubordination, neglect of his responsibilities to the University and a violation of the University's rules and regulations. Dr. Sheehan also called the spouse of Dr. Tjia's Australian host twice and asked her to ask Dr. Tjia to call him. Dr. Tjia received the information contained in Dr. Sheehan's mailgram of October 30, 1987, and Dr. Sheehan's request to call. Dr. Tjia did not call Dr. Sheehan, however, because he knew what Dr. Sheehan was trying to tell him. Dr. Tjia returned to the University on November 16, 1987. Dr. Tjia knew that he would be disciplined for failing to return to the University on November 3, 1987. Dr. Tjia did not visit relatives during the period of his annual leave as he indicated he planned to do in his request for annual leave. On November 19, 1987, Dr. Sheehan delivered a letter to Dr. Tjia from Dr. Woeste dated November 16, 1987. In this letter Dr. Tjia was informed that the University intended to suspend him without pay for the Spring Semester of 1988 (January 4 - May 5, 1988). Dr. Tjia was also informed that he would be required to reimburse the University for his salary for October 12, 1987. Dr. Tjia was informed that these actions were being taken because of his absence from the University on October 12, 1987, and during the period of November 3-13, 1987, without approval. Dr. Tjia was also informed that his actions constituted insubordination and neglect of his responsibilities to the University. Finally, Dr. Tjia was informed that he had the right to respond to the letter in writing or he could request a meeting within ten days of receipt of the letter. Dr. Tjia did not respond to the letter. By letter dated December 9, 1987, Dr. Woeste informed Dr. Tjia that the University had decided to take the actions outlined in the letter of November 16, 1987. Dr. Tjia was advised that he had the right to request a hearing pursuant to Section 120.57, Florida Statutes. Dr. Tjia requested a hearing pursuant to Section 120.57(1), Florida Statutes. The proposed action of the University was held in abeyance pending conclusion of the hearing. During the period of Dr. Tjia's absence without authorization from November 3, 1987, through November 13, 1987, Dr. Tjia's duties and responsibilities as an employee of the University were not carried out by Dr. Tjia. As a full-time faculty member, Dr. Tjia was required to be present at the University to preform day-to-day responsibilities unless his absence was approved by the University. Dr. Tjia did not perform these duties. Dr. Tjia received the University Faculty Handbook in January of 1984 and in the Fall of 1987. At page 24 of the 1987 Handbook it is provided: A leave of absence without pay may be granted by the President when it is determined that the leave of absence is an important benefit to the faculty member and the University. Pursuant to this provision, faculty members are required to provide sufficient information to demonstrate the benefit to the University and the faculty member of any leave without pay requested by a faculty member. IFAS Internal Management Memorandum Number 6C1-6.30-1-11, which Dr. Tjia received, requires that University faculty members submit requests for leave without pay well in advance of the period of leave. Dr. Tjia did not comply with the portion of the Handbook quoted, supra, by providing the University with sufficient information in his request for leave without pay of October 9, 1987, or otherwise, which demonstrated any benefit to the University. Dr. Tjia also did not comply with IFAS Internal Management Memorandum Number 6C1-6.30-1-11. Instead, Dr. Tjia waited until the day of his departure from the University and the day before his departure from Gainesville before submitting his request for leave without pay. Dr. Tjia intentionally waited until October 9, 1987, to request leave without pay because he was afraid it would be denied. No other employee of the Department of Ornamental Horticulture has requested leave without pay. Leave without pay has not been approved by the University for faculty members who desire to engage in the type of activities Dr. Tjia engaged in while he was absent from the University without approval. Leave without pay has only been granted for short periods of time when an employee has been inadvertently unable to return to the University as planned. Leave without pay has not been granted under circumstances similar to those involved in this case. Dr. Tjia, as a University faculty member, is charged with knowledge of the rules of the University and the Board of Regents. Dr. Tjia was aware, or should have been aware of the pertinent rules an regulations concerning leave and disciplinary matters. He also knew that he was in violation of those rules when he failed to return to the University on November 3, 1987, as directed by Dr. Sheehan. Dr. Tjia also knew that suspension was one of the penalties that could be imposed for neglect of duties or for insubordination. The University has suspended faculty members for misconduct. The University has not suspended any faculty member under circumstances similar to this case but no faculty member has failed to return to the University when instructed to do so other than Dr. Tjia. Dr. Tjia's failure to return to the University at the end of his annual leave on November 3, 1987, could have been treated by the University as a voluntary resignation pursuant to Rule 6C1-7.029(11), Florida Administrative Code. The University chose the lesser penalty of suspension to give Dr. Tjia an opportunity to remain with the University. The University chose suspension as the penalty in order to impress upon Dr. Tjia and other employees the seriousness of Dr. Tjia's offense, especially in light of his prior leave- related disciplinary problems. Dr. Tjia has been reprimanded and suspended by the University in the past for leave-related violations at the University. On August 30, 1984, Dr. Tjia received a written reprimand for absence from the University without approval. On September 27, 1985, Dr. Tjia was suspended without pay for ten days for being absent from the University without approval and for misrepresentations to University officials.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the University issue a Final Order requiring Dr. Tjia reimburse the University within thirty days of the date of the Final Order for his absence from the University on October 12, 1987, and suspending Dr. Tjia from his position with the University without pay for one semester. DONE and ENTERED this 13th day of December, 1988, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of December, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-5611 The University has submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. The University's Proposed Finding of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 1-3. 2 4-6. 3 7-8. 4 9-11. 5 12-13 and 17. 6 12-14. 7 12-13 and 31-33. 8 15. 9 16-17 and 19. 10 20-21. 11 22. 12 23-25. 13 26, 28 and 36. 14 27. 15 26 and 28. 16 28. 17 29. 18 36 and 39. 19 40. 20 41. 21 30. 22 34-35. 23 37-38. COPIES FURNISHED: Marshall M. Criser, Jr. President University of Florida 226 Tigert Hall Gainesville, Florida 32611 Isis Carbajal de Garcia Assistant General Counsel Office of the General Counsel University of Florida 207 Tigert Hall Gainesville, Florida 32011 Harry F. Chiles Assistant Attorney General Department of Legal Affairs The Capitol, Suite 1501 Tallahassee, Florida 32399-1000 Rodney W. Smith, Esquire Post Office Box 625 Alachua, Florida 32015
The Issue Whether the Duval County School Board (Board) may terminate Respondent, Cleveland F. William, Jr.'s, employment as a teacher based upon incompetence under the Duval Country Teachers Tenure Act (the Act). This issue is dependent upon whether the Board showed Respondent to be incompetent and whether the Board complied with the procedural requirements of the Act.
Findings Of Fact Respondent was first assigned to Fort Caroline Middle School during the academic year 2000-2001 to teach 6th grade science. Kathy Kassees was the principal at Fort Caroline Middle School during that school year. Respondent's brother was extremely ill and died during the school year. Respondent's performance evaluation for that school year was less than satisfactory. See Exhibit 2, 2000-2001 Performance Evaluation. Respondent concedes that his performance in 2000-2001 was less than satisfactory. See paragraph 56 of Respondent's Post-hearing Brief. When a tenured teacher in the Duval County system has a performance evaluation of less than satisfactory, the teacher may elect to transfer to another school, and Respondent exercised that option for the school year 2001-2002. Respondent was moved to Stillwell where he was assigned to teach 7th grade science. In addition, he was assigned for the first time to teach inclusion classes. Inclusion classes are made up of students who are exceptional education students who may have various exceptionalities. These exceptionalities may include disabilities such as deafness, emotional and behavioral problems, and developmental disabilities. Behavioral problems may include students diagnosed with attention deficit disorder and hyperactivity. Stillwell utilizes a program of instruction called the America's Choice Plan (ACP). The ACP is a comprehensive educational program which covers all aspects of instruction, organization of the classroom, and display of student materials in the classroom. ACP has its own vocabulary of terms to describe activities and things. For example, "artifacts" refers to student work and other materials posted in the classroom. It is expected that "artifacts" will be posted and changed periodically. Weekly meetings to discuss the system are called "Tending the Garden" meetings. ACP had been used at Stillwell previously and the returning faculty were familiar with it. Respondent had never worked with ACP before. Ms. Kassees had prepared a Success Plan for Respondent after he received his unsatisfactory evaluation to help him improve his deficiencies. Respondent took this plan with him to Stillwell, but the plan did not address ACP or inclusion classes. Mr. Marjenhoff, the principal at Stillwell, met with Respondent and discussed Marjenhoff's expectation of Respondent. They did not discuss any special requirements or changes necessitated by ACP or inclusion classes. Petitioner was unable to establish that it had prepared and delivered a new Success Plan to Petitioner at Stillwell. After his poor evaluation in February of 2002, Respondent asked Mr. Marjenhoff for a copy of the Success Plan and one was produced which was signed by Mr. Marjenhoff and dated August 6, 2001, and by Respondent on March 27, 2002. See Exhibit 13. Respondent did attend various ACP, "Tending the Garden" in-service educational classes presented by Dianne Rahn; Urban Systemic Initiative (USI) seminars presented by Rose Curry; and classes presented by his department head, Margarita Arroyo. His attendance and punctuality at these meetings was on par with his peers. The first indication of evaluative inspections came in a November 28, 2001, memo to Respondent from Marjenhoff stating that Dianne Dunn, a cadre member, would be contacting him about setting up a classroom visit. She did not conduct a visit until January 28, 2002. See Exhibit 11 and attachments. The annual evaluation of faculty occurs in February. Petitioner concedes that other than the cadre work by Dunn and some instruction on USI by Curry, little was done by way of individualized in-service training to address Respondent's shortcomings. Respondent was not afforded much in the way of unique, individualized oral counseling or critiques of his performance during the first part of the school year. See paragraphs 21 and 22 of Petitioner's Post-hearing Brief. A review of Curry's visits reflects she met with Respondent approximately once each month for a rough average of an hour, with the exception of the first meeting which was four hours. Curry's logs do not reflect the corrective actions taken with regard to Respondent's teaching. This hardly constitutes an accelerated effort to improve Respondents performance. See Exhibit 21. The dates of the various class visits and evaluations by Marjenhoff are in February and March. See Exhibits 12, 18 and 19. A review of the records of the in-class visits and commentaries by the observers reveal that too many general recommendations were made rather than specific, concrete changes to implement. For example, Darrell Perry visited Respondent's class and was concerned about its physical organization, i.e., where the television was located, the direction in which the seats were oriented, and where Respondent's desks was located. This was written up in March, which was late in the year to raise these issues, and Perry did not suggest or volunteer to help Respondent alter the room to meet Perry's expectations. Also see Exhibit 11 and attachments. In sum, there was too much jargon and too little performance-oriented, hands-on correction of Respondent. Memoranda relating to Respondent's performance all seem to be dated after January 2002. See Exhibits 16 and 17. The corrections that were made came too late to have a meaningful impact upon the improvement of Respondent's teaching performance.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Board provide Respondent another year in which timely and appropriate in-service training is provided to correct his deficiencies in teaching. DONE AND ENTERED this 29th day of January, 2003, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of January, 2003. COPIES FURNISHED: David A. Hertz, Esquire Duval Teachers United 1601 Atlantic Boulevard Jacksonville, Florida 32207 Michael B. Wedner, Esquire City of Jacksonville 117 West Duval Street, Suite 480 Jacksonville, Florida 32202 John C. Fryer, Jr., Superintendent Duval County School Board 1701 Prudential Drive Jacksonville, Florida 32207-8182 Honorable Charlie Crist Commissioner of Education Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400
The Issue Whether or not the Petitioner satisfied the requirements to be classified as a tenured teacher and was thereby entitled to the privileges and rights, afforded to persons employed by Respondent pursuant to the Duval County Teachers Tenure Act. Chapter 21-197, Laws of Florida, Acts of 1941, as amended by Chapter 70-671 and further amended by Chapter 72-576; and the education laws of the State of Florida and the rules and regulations promulgated pursuant thereto.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received and the entire record compiled herein, the following relevant facts are found. Petitioner, Mary C. Gristina (formerly Mary Helen Campbell), was employed as a full-time teacher from September, 1960 through June, 1964, by the Duval County School Board (Respondent). Petitioner was granted an approved professional leave of absence without pay beginning on August 21, 1964, through June 11, 1965, to pursue graduate studies toward her masters degree. (Joint Exhibit 2) Petitioner was granted an extension of professional leave without pay from August 23, 1965 through June 15, 1966, to continue studies toward completion of her masters degree requirements at Florida State University. The above facts are not herein disputed. What is in dispute however is Petitioner's assertion that during the period in which she was on an approved professional leave of absence from August 21, 1964 through June 15, 1966, she completed all of the requirements for establishing tenure, including teaching (for Respondent) for three (3) consecutive years and securing the requisite hours of continuing education during such time frame, thereby establishing her tenure rights. Respondent, on the other hand, contends that Petitioner failed to establish that she completed the requisite hours of continuing education to be qualified for tenure in the Duval County School System, either while employed or between consecutive years that she was employed. In further support of this contention that the Petitioner failed to qualify as a tenured teacher, Respondent points to the fact that Petitioner was reemployed as an instructional employee pursuant to an annual contract during the 1979-80 school year. (Joint Exhibit 8) Respondent failed to renew Petitioner's contract for the 1980-81 school year and further refused to employ Petitioner in any other capacity since the 1979-80 school year. Petitioner received notice of Respondent's non-renewal of her employment contract during the late spring of 1980 and at the conclusion of the 1979-80 school year, both orally from her principal and in writing from the personnel department of the Duval County School Board. (Joint Exhibit 9) In this regard, Petitioner was advised by letter dated July 31, 1980, in response to a follow-up of a telephone conversation with Gary Simmons, Respondent's Director of Personnel Systems, that the personnel office had no record of Petitioner having completed six (6) semester hours of college work during any three (3) consecutive years of employment with the School Board. In support of her position that she in fact satisfied the requirements for appointment as a tenured teacher pursuant to the requirements set forth in the Duval County Teacher Tenure Act, Respondent offered a transcript from Wagner College, Staten Island, New York, for three (3) semester hours' credit for Exploring Art in New York. That transcript shows an entrance date of July, 1964. Respondent rejected Petitioner's application for credit for the Wagner College course based on the fact that the entrance date of the art course was neither during any school year that she was employed nor between consecutive years that she was employed by the Respondent School System. (Joint Exhibit 5) During times material herein, Respondent had a procedure whereby instructional employees could request permission to substitute other educational work in lieu of the tenure law summer school course work requirements. 1/ Finally, Petitioner points out that she was handed a contract by a secretary while teaching during December, 1979, which she was not afforded an opportunity to review before executing. She was not therefore aware that she was in fact signing an annual contract for employment with the Respondent School Board. Petitioner contends that she completed her course work necessary to be qualified for a tenured teacher during the summer of 1964; however, she did not submit a transcript reflecting completion of such course work to Respondent because of her belief that she felt that she was employed as a tenured teacher and therefore, submission of the transcript was not required. In this connection, Personnel Systems Director Gary Simmons noted that if Petitioner had returned for employment and had taught during the 1964-65 school year, her services would have been continuous and she would have been employed as a tenured teacher under such a contract.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is hereby RECOMMENDED: That the Duval County School Board enter an order denying Petitioner's claim to be afforded the rights and privileges afforded teachers who have satisfied the Duval County Teachers Tenure Act and, in accordance therewith, that she be denied all additional relief requested such as reinstatement with back pay etc., pursuant to the Amended Petition for administrative hearing filed herein. RECOMMENDED this 9th day of September, 1982, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of September, 1982.
The Issue The issue in the case is whether the Respondent unlawfully discriminated against the Petitioner on the basis of a handicap or disability.
Findings Of Fact The Petitioner became employed on an annual non-renewing contract as a paraprofessional at Park Elementary School during the 1993-94 school year. The Petitioner was assigned to work in a classroom program for developmentally disabled preschool children. The children were three to four years of age and very active. There were between five to nine children in the classroom. The Petitioner was generally assigned to work with two children and was responsible for monitoring their activity. She was also responsible for physically controlling the children and changing diapers when required. The substantial part of the workday was spent standing, bending, lifting, and moving about with the children. The Petitioner continued her employment in the 1994-95 school year and received satisfactory evaluations. During the 1995-96 school year, the Petitioner continued her employment as a paraprofessional. Although there is evidence that the Petitioner's job performance was of some concern to the class teacher and to the school principal, the Petitioner was not formally evaluated because her employment was interrupted as set forth herein. There is no evidence that anyone discussed the concerns with her or that she had an opportunity to remedy any alleged deficit in her job performance. On January 2, 1996, the Petitioner was riding in a car being driven by her husband and was involved in an automobile accident when another driver struck the Petitioner's car. The Petitioner was injured in the accident and was taken to a hospital where she was treated and released. Subsequent to the accident, the Petitioner continued to have pain in her neck and sought treatment from a chiropractor. Eventually, the chiropractor referred the Petitioner to a neurologist in an attempt to determine the cause of the pain. The medical professionals determined that the Petitioner's injuries were not permanent. The Petitioner's chiropractor described the pain as a "typical soft tissue injury" and eventually stopped treating the pain because the pain did not improve and was not supported by diagnostic testing. The Petitioner's neurologist opined that the neck pain was not a "disability." The Petitioner returned to the school on February 14, 1996, and discussed her physical limitations with the school principal. She showed the principal a copy of a letter from her chiropractor to an insurer that stated that she was "able to work in a limited capacity . . . with a 15 pound limit" and that "she is to avoid excessive bending, stooping and standing." The Petitioner asserts that the school principal told her to go home and return a week later. The Respondent asserts that the Petitioner informed the Principal that she could do the job but only under the restrictions set forth in the chiropractor's letter. The evidence establishes that the discussion related to whether or not the Petitioner was able to return to work was centered on her ability to perform her responsibilities and that the Petitioner decided she was unable to return to work at that time and would return a week later. By letter dated February 15, 1996, the School Board's personnel coordinator advised the Petitioner that she had used all of her sick leave and would not receive any additional pay until she returned to work. The letter suggested that she request an official leave of absence effective January 2, 1996, in order to permit her retirement benefits to be maintained because "time spent on an official leave of absence can be bought back by the employee from the Division of Retirement." On February 21, 1996, the Petitioner contacted the school principal and informed him she would be unable to return on that day due to family matters. On February 22, 1996, the Petitioner returned to the campus and spoke with the principal. The Petitioner told the principal she did not feel physically capable of working as a paraprofessional in the preschool classroom and asked him to provide her with other employment. The principal told the Respondent he did not have any open positions at the school for which she would be physically suited. The principal was also concerned that because the Respondent was physically restricted from bending, stooping, and standing for an extended time, she would not be able to perform the responsibilities of her employment. There is no evidence that on February 22, 1996, or at any time during the remainder of the 1995-96 school year, there were jobs available at the school that did not require physical activity beyond the Petitioner's abilities. On February 26, 1996, the Petitioner contacted the school principal and said she wanted to take a leave of absence as suggested by the personnel coordinator. The principal believed there was a misunderstanding about the availability of the leave of absence to an annual contract employee and suggested that she speak to the personnel coordinator. The principal also called the coordinator and requested that he clarify the matter with the Petitioner. On February 27, 1996, the personnel coordinator telephoned the school principal and said that the Petitioner had been informed that she was not eligible for a leave of absence and said that the Petitioner had suggested she would resign her employment. On March 1, 1996, the Petitioner contacted the principal and said she wanted to apply for a leave of absence. The principal contacted the personnel coordinator who suggested that the Petitioner submit to the school superintendent a letter requesting the leave along with a copy of the chiropractor's letter and then let the superintendent decide whether or not he would recommend to the school board that her leave request be granted. The information was relayed to the Petitioner, who stated that she would submit the letter. By letter dated March 7, 1996, the Petitioner relayed the events to the superintendent and requested "any consideration you can give in resolving this matter." In the March 7 letter, the Petitioner writes, "[d]ue to the activeness of the children in this class the possibility of re-injuring myself is very high." She also advises that she informed the principal that the personnel coordinator suggested that she request the leave of absence and that the principal suggested that she write the letter to the superintendent. The Petitioner asserted that she would not resign from her position. Attached to the March 7 letter were past evaluations, a March 6 letter "to whom it may concern" from her chiropractor restating the symptoms of her injury, and the February 15 letter she received from the personnel coordinator suggesting the leave of absence. By letter dated March 19, 1996, the Petitioner referenced a March 15 meeting with the superintendent and states "[i]f there are no reasonable accommodations for a job replacement, I would like to request a medical leave of absence for the remainder of this year." She enclosed the letter from the chiropractor with the letter to the superintendent. There appears to have been no response from the superintendent to the Petitioner's request for a leave of absence. By letter dated June 4, 1996, the personnel coordinator responded to the request for leave of absence by stating that because the Petitioner was on an annual contract, the request for a leave of absence could not be granted. The letter also stated that due to a lack of funding, some employees would not be called back to work in the 1996-97 school year, and suggested that she should apply for a future vacant position "when you are again able " According to the leave policy set forth in the school board's employment handbook, any employee may request a leave of absence. Such requests must be made at least seven days prior to the requested leave period except in the case of emergency when the request must be made "as soon as possible." The policy requires that the leave application be made in writing and on the form provided for such requests. The policy provides that the School Board "may grant leave, with or without pay." The evidence fails to establish that the Petitioner followed the school system policy in requesting a leave of absence after her accident. The Petitioner did not complete and sign a form requesting a leave of absence. The first written request to the school superintendent for a leave of absence was the letter of March 19, approximately 70 days after the accident. The first time the issue of a leave of absence was verbally addressed by the Petitioner was on February 26, 1996, approximately 50 days after the accident, when she told the school principal that she wanted to take a leave of absence as suggested by the personnel coordinator in his letter of February 15. The evidence fails to establish that the Petitioner has a handicap or disability as those terms are defined under applicable statutes and case law. The evidence fails to establish that the Respondent discriminated against the Petitioner in any employment decision on the basis of a handicap or disability. There is no credible evidence that the Petitioner filed a Request for Disability Accommodation at any time prior to the end of the 1995-96 school year. For the remainder of the 1995-96 school year, a substitute teacher filled in for the Petitioner. The job remained open and available to the Petitioner through the end of the school year. The position was not filled on a permanent basis because school officials were uncertain about whether the Petitioner would be able to return for work. Paraprofessional employees working for the Highlands County School System are employed as annual employees for the first three years. After successful completion of the third year, the paraprofessional becomes eligible for consideration for continuing contract employment. An employee under an annual contract has no automatic right to re-employment. Continuing contract employment provides increased job security to an employee because termination of employment must be for "just cause" or when required by a "reduction in force." Continuing contract employees also receive preference over non-contract employees when workers are recalled after a reduction in force. The successful completion of the third year does not guarantee that the paraprofessional will receive the continuing contract, but only provides that such employee is eligible to receive such a contract The Respondent requires that in order to work a "complete" year, an employee must work for at least 150 days in a school term. Because the Petitioner did not work for at least 150 days in the 1995-96 school term, she did not complete the third year of employment and is not currently eligible for a continuing contract as a paraprofessional employee. The Respondent may permit a paraprofessional employee to work a fourth year, after which the employee automatically receives a continuing contract. Because there were concerns related to the Petitioner's job performance in the 1995-96 school year, the principal of the school would not likely have recommended that a fourth year of employment (and a resulting automatic continuing contract) be permitted.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief filed by Mary Ann Kerney. DONE AND ENTERED this 1st day of June, 2001, in Tallahassee, Leon County, Florida. WILLIAM F. QUATTLEBAUM 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 1st day of June, 2001. COPIES FURNISHED: Azizi M. Dixon, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Dana A. Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Katherine B. Heyward, Esquire John K. McClure, P.A. 230 South Commerce Avenue Sebring, Mary Ann Florida Kerney 33870 4524 Elm Sebring, Avenue Florida 33870 Honorable Charlie Crist Commissioner of Education Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 Wallace Cox, Superintendent Highlands County School Board 426 School Street Sebring, Florida 33870-4048
Findings Of Fact Petitioner Hamdi A. Mohammed is a tenured professor in the Department of Dental Biomaterials, College of Dentistry, at the University of Florida. He received his dental degree in 1963 from the University of Alexandria in Egypt, obtained a Masters Degree in Prosthetic Dentistry in 1967 at Northwestern University, and his Doctorate Degree in Dental Materials and Engineering from the University of Michigan. Prior to the commencement of his employment at the University of Florida in 1974, he had served as an assistant professor and then associate professor at the University of Connecticut. (Testimony of petitioner, Exhibit 27 (Deposition of Petitioner)) Petitioner was first employed at the University of Florida in 1974 as a professor at a salary of $30,000.00. The notice of appointment stated that the Board of Regents had approved the appointment upon the recommendation of the President for 1974-1975 for a period of twelve months. In 1975, the Department of Dental Biomaterials, among others, was created within the College of Dentistry, and Petitioner was appointed chairman of the Department by Don L. Allen, Dean of the College of Dentistry on March 1 1975. Thereafter, the annual notice of appointment, dated November 25, 1975, which was signed by Dean Allen and Petitioner, reflected that the Board of Regents had approved Petitioner's appointment upon the recommendation of the President, as professor and chairman from July 1, 1975 to June 30, 1976 at a salary of $30,000.00. (Testimony of Petitioner, Allen, Exhibits 4, 6, 26 (Deposition of Allen), 27 (Deposition of Petitioner)) On February 24, 1976, Dean Allen recommended to the Board of Regents that Petitioner be tenured in the rank of professor when he became eligible on July 1, 1976. By letter of August 23, 1976, the President of the University informed "Professor" Mohammed that the Board of Regents had approved the tenure recommendation. Subsequent annual notices of appointment reflected that the President had approved the appointment of Petitioner for the ensuing year under Class Code 9060 as "chairperson and professor" in the College of Dentistry. In each instance, Petitioner acknowledged the appointment by signing the notice of appointment. (Exhibit 4) In the spring of 1980, Dean Allen received complaints against Petitioner from several members of the faculty in the Department of Dental Biomaterials. The complaints dealt generally with Petitioner's performance as chairman of the department primarily with respect to his alleged excessive absences and unavailability in the department, and taking credit for research efforts of other faculty members. Subsequently, on May 19, 1980, Dean Allen met with Petitioner to discuss his annual evaluation. The concerns which were discussed and later memorialized in the written "Annual Departmental Chairperson Review" were the "rather significant turnover of faculty members in the department" and "lack of a significant number of publications from the department." The written evaluation stated that "Dr. Mohammed's department, under his leadership, continues to do a very fine job in the dental educational program as well as the research program". The complaints of the faculty members were not discussed at the meeting. Dean Allen reported the complaints to Dr. Kenneth F. Finger, acting vice president for health affairs, who referred him to Thomas S. Biggs, Jr., the University attorney. Mr. Biggs, in turn, brought in Dr. Catherine A. Longstreth, Special Assistant to the President of the University. After discussing the matter, Biggs assigned an assistant to investigate the complaints and asked Dean Allen to provide him with further information concerning certain of Petitioner's activities in the department. At some point in time after several meetings, Biggs and Longstreth advised the Dean that he had the right to remove or not to reappoint Petitioner as the chairman at the end of the contract period on June 30, 1980, but could not remove him during a contract period without first affording Petitioner a hearing and showing cause for removal. They also agreed to support the Dean if he made the determination not to reappoint Petitioner as chairman of the department. At this time, a report of the investigation conducted by the University attorney's office had been provided to the participants wherein the investigator had found several instances of lack of verification of certain of the complaints made by the faculty members against Petitioner, but was otherwise inconclusive. (Testimony of Longstreth, Biggs, Allen, Exhibits 11, 20, 25 (Deposition of Longstreth), 26 (Deposition of Allen)) Dean Allen reported to Dr. Finger that he intended to meet with Petitioner and tell him that he would not continue as chairman of the department. Dr. Finger suggested that Dean Allen discuss the matter with some of the department's chairmen. On June 19, 1980, Dean Allen informed Petitioner of the faculty complaints and told him that, in view of the gravity of the situation, he considered that he had no option other than to try to rebuild the department with a new chairperson. The following day, Dean Allen met with five of the departmental chairpersons and informed them of his intent not to reappoint Petitioner as chairman of the Department of Dental Biomaterials. Dean Allen also met with Petitioner on June 22, 1980. At some time during their two meetings, the Dean told Petitioner that several "options" were open to him in the matter. These included non reappointment effective July 1, 1980 or July 1, 1981, or total resignation immediately from the faculty and the chairmanship, or resignation from the chairmanship only. However, Dean Allen told Petitioner that it seemed most appropriate for him to submit a letter of resignation prior to July 1, 1980 as chairman, which would be effective on June 30, 1981, and that he would keep the matter confidential until the beginning of 1981 so that Petitioner would have an opportunity to seek another position. Dean Allen indicated that he had discussed the "options" with Dr. Longstreth and Mr. Biggs. Petitioner testified at the hearing that the Dean had also told him that he was compelled to remove Petitioner as chairman upon the direction of those individuals. Dean Allen denied at the hearing that he had made such a statement. This conflict in the testimony cannot be resolved. In any event, by letter of June 23, 1980, Petitioner submitted his resignation as chairman effective June 30, 1981, and therein expressed the intent to remain in his position as a tenured professor in the department. The letter stated petitioner's understanding that his resignation would not reflect on his professional competence and ethical conduct or his ability to effectively function as a member of the tenured faculty, and requested that the Dean sign a copy of the letter if he concurred therein. Dean Allen expressed his concurrence by signing the copy of the letter on June 23, 1980. Also, by memorandum dated August 8, 1980, Dean Allen formally accepted the letter of resignation. In the memorandum, Dean Allen assured Petitioner that the fact of the resignation would not be disclosed until January, 1981. (Testimony of Petitioner, Allen, Exhibit 5, Exhibit 26 (Deposition of Allen), 27 (Deposition of Petitioner)) During ensuing months, Petitioner and Dean Allen exchanged correspondence concerning the Dean's stated intent to reduce Petitioner's state salary by $6,000.00 at the time the resignation as departmental chairperson became effective. By letter of October 22, 1980, Petitioner wrote to the Dean that, after due consideration, he was withdrawing his resignation. A letter from his attorney of the same date stated that it was apparent that proper procedures for handling complaints against faculty members were not followed, that Petitioner had been pressured and coerced into tendering his resignation, and that he had been advised that his income would be seriously affected if the resignation became effective. Mr. Biggs, the University attorney, responded to this letter of October 24th stating that the University had no intention of acknowledging the purported resignation withdrawal, but that the Dean, after appropriate consultation with other University officials, had made the decision that the interest of the department and college could best be served by someone else in the position as chairman. It further stated that petitioner did not have tenure in the administrative post of department chairman, and that, even absent a resignation, it was within the power of the Dean to make a change in the chairmanship of the department. (Exhibit 5) On December 12, 1980, Petitioner requested Dr. Finger to initiate a grievance proceeding and hearing "to investigate the ethics and justification of a resignation imposed upon me by Dr. Don L. Allen." In his letter, Petitioner stated that he had been pressured into resigning, but that after submitting the resignation, it was determined that the complaints against him had proved to be unfounded, and therefore he had withdrawn the resignation. He further stated his belief that the Dean's interest in discrediting him emanated from his discrimination against petitioner's national origin, citing an instance when Dean Allen had once stated in a public search committee meeting that he did not trust orientals and simply could not work with them. By letter of February 9, 1981, Dean Allen explained to Dr. Finger his reasons for his "plan" to remove Petitioner as chairman of the Department of Dental Biomaterials. He therein stated that the basic problem was the inability of Petitioner to develop a reasonably stable department from the standpoint of personnel to ensure its effectiveness. The letter further requested Dr. Finger's concurrence for the Dean to send Petitioner a letter stating that he would not be appointed chairperson of the department, effective with the 1981-1982 academic year appointment. Further correspondence ensued between Dean Allen and Petitioner, which culminated in the Dean's letter of May 1, 1981 advising Petitioner that after receiving certain materials from him, he had "reconsidered" the matter and it was his conclusion that the department had not demonstrated the continuity of faculty and staff to enable it to fulfill its responsibilities and commitments to the long-range goals of the College of Dentistry. It further stated the Dean's conviction that new leadership was required and that therefore he would not reappoint Petitioner as chairman at the end of the academic year. Effective July 1, 1981, Petitioner was not reappointed as department chairman, and an acting chairman has been serving in such capacity since that date. Petitioner has continued to serve as a professor in the department without reduction in salary. (Testimony of Allen, Exhibits 8, 13, 17, 18, 25 (Exhibits to Deposition of Longstreth)) It has been the general practice at the University of Florida for departmental chairmen to be appointed by the particular college dean with the concurrence of the appropriate vice president, without the need for personal approval by the President. Prior instances in which departmental chairmen had left that position were normally due to retirement or a voluntary desire to return to a purely faculty status without administrative duties. In such cases, the change normally would be effected simply by a resignation or the issuance of a personnel form showing the change in status. Although a chairman's state salary normally was above that of other members of the faculty, the specific amount for performing the duties of chairman was not identified as such until 1981 in the College of Dentistry. (Testimony of Biggs, Longstreth, Exhibit 5) Petitioner's status as a professor and later as a departmental chairman and professor was as an instructional and research faculty member (I and R) as opposed to the administrative and professional staff (A and P). The latter category includes specialized positions such as the university attorney, affirmative action officer, and clinical laboratory specialist. There is a separate classification for chairperson and professor which is Class Code 9060 in the State University System. A professor is under another class code. The classification system is designed to reflect a person's current duties and responsibilities and is relevant to the issue of collective bargaining unit determinations. Academic rank and tenure are reflected on annual notices of appointment. Those notices for Petitioner after he acquired tenure showed that he was in tenure status 1. He remained in tenure status 1 after July 1, 1981, as reflected in his notice of appointment as professor for the 1981-1982 school year. No instances have been shown where the Board of Regents or Respondent interpreted pertinent statutes and rules as providing for tenure with respect to administrative duties assigned to a faculty member, such as departmental chairman. Tenure recommendations and decisions uniformly have applied solely to faculty rank. It is considered common knowledge in academic circles that the concept of tenure does not apply to the position of departmental chairman. (Testimony of Perry, Allen, Longstreth, Biggs, Exhibits 25 (Deposition of Longstreth), 26 (Deposition of Allen), 28 (Deposition of Smith) 29 (Deposition of Wickwire), 30 (Deposition of Mahan), 31 (Deposition of Colaizzi)) Dean Allen's testimony at the hearing concerning the reasons that prompted him to decide not to reappoint Petitioner as chairman indicated that the accuracy of the faculty complaints was not the critical factor in his decision. He testified in the following vein: The big thing was whether these things were totally accurate or not, if Hamdi was perceived this way by this many people that were willing to put it down on paper, to make that kind of a commitment of what they were convinced of, then I felt like based on the history of the de- partment where everyone, every faculty member that had been in the department at this time had left or were leaving with the exception of Dr. Shen, who I believe had just joined the department, and some other things. (T 38-39) . . . that because I considered them to be generally true, and what I mean by generally true, I did not mean that each little word might be true but that the general situation was such that if these people, who some of them I knew, perceived of their chairman that way and would put it down in writing and knowing that the department had had difficulty in retaining faculty members, that all of those things taken together led me to believe that the perception of the people that worked with Dr. Mohammed as a colleague that were supposed to have some degree of freedom as a faculty member, that they did not see that they had that degree of freedom to the ap- propriate amount, and if Dr. Mohammed was perceived that way and this was the reason these people were leaving, then we needed an individual with a different kind of per- ception to chair that department. (T 111, Exhibit 26 (Deposition of Allen)) Dean Allen and Petitioner had been close personal friends for a number of years prior to the events of 1980. Petitioner's claim that the Dean's actions against him were prompted by discrimination against Petitioner's national origin was based primarily on a statement made by the Dean in 1978 before members of a faculty search committee that was considering several applicants for the position of chairman of the Department of Oral Surgery. Petitioner became upset as the result of an alleged statement by the Dean that foreigners could not be trusted. Two of the final three candidates were of foreign origin. In fact, the Dean had indicated to the committee that the position in question required a good working basis between the hospital and the medical school, and that he thought it was extremely important that the chairman knew American hospital procedures. He also had indicated some concern after interviewing the two foreign individuals that they wanted to tell him what they thought he wanted to hear rather than what they really thought. As a result of Petitioner's complaint to the Dean, the latter apologized at the next faculty meeting to the effect that if anyone had felt that he had said something derogatory about foreigners, he did not mean to do so. Most of the faculty members and graduate students in the Department of Dental Biomaterials were of foreign origin. It is found that the evidence is insufficient to show that the Dean's action with respect to Petitioner was based on any bias or discrimination against him because of his foreign origin. (Testimony of Allen, Petitioner, Exhibits 7, 26 (Deposition of Allen), 27 (Deposition of Petitioner), 28 (Deposition of Smith), 29 (Deposition of Wickwire), 30 (Deposition of Mahan), 31 (Deposition of Colaizze), 32 (Deposition of Lundeen))
The Issue The issue for determination is whether Respondent committed an unlawful employment act by discriminating against Petitioner on the basis of marital status in violation of the Florida Civil Rights Act of 1992, as amended.
Findings Of Fact In June 2008, Dr. Hernandez was hired at the University as a faculty member of the School of Pharmacy in the position as a professor. She had a one-year employment agreement, with no presumption of renewal and a starting salary of $97,000.00. At all times material hereto, Dr. Hernandez was divorced. Dr. Hernandez had been divorced from her husband since 1995. The University was aware that Dr. Hernandez was divorced when she was hired. She had been recruited by the University's then Dean of the School of Pharmacy, Dan Brown, who, at that time, was also divorced. Marital status is not a factor in hiring an employee by the University. Dr. Hernandez's marital status was not a consideration or a factor in her hiring. By February 15th of each year, faculty members are notified whether their employment contract will be renewed for the following year. If a faculty member is not notified by February 15th that their contract will not be renewed, the faculty member's contract is automatically renewed for another year. Dr. Hernandez's contract was renewed for the 2009-2010 academic year. Spring 2010 Dean Brown was one of Dr. Hernandez's supervisors. For all the professors in the School of Pharmacy, Dean Brown prepared and distributed a list of all of their current work load ratios. The goal for all Pharmacy professors was a ratio of 0.8. Dr. Hernandez's work load ratio was 0.68, which was below the goal. She failed to meet the goal of the work load ratio for all Pharmacy professors. Dr. Hernandez refused to accept the work load ratio as a reliable tool of performance and considered it as irrelevant to her. She did not express or exhibit an interest in improving her work load ratio. Also, Dean Brown prepared and distributed a comparative analysis of student surveys of all the Pharmacy professors. Students were requested to score the performance of all the Pharmacy professors in 12 different areas. Based on the student surveys of faculty performance, Dr. Hernandez was the second lowest ranked Pharmacy professor. She scored very low in the following areas: "presents material in concise, organized, easy-to-follow manner" and "is an effective teacher." Dr. Hernandez refused to accept the student surveys as a reliable tool of performance and had no interest in the comparative analysis from the student surveys. Additionally, she failed to express or exhibit an interest in improving in those areas in which the students gave her a low ranking. During his supervision of Dr. Hernandez, Dean Brown received several complaints from faculty members regarding emails that they had received from her. The faculty members considered the emails to be "caustic," "obnoxious," and "insulting." As a result, Dean Brown met with her and advised her to stop sending antagonistic emails and insulting her fellow faculty members. One week later, Dr. Hernandez sent such an email to a fellow professor, Mary Ferrill, Ph.D. Dr. Ferrill was married to Dean Brown. Dr. Hernandez's email insinuated that Dr. Ferrill received special treatment because she was married to Dean Brown and asked whether she "sang and danced" for her students. Both Dean Brown and Dr. Ferrill considered the email to be insulting and confronted Dr. Hernandez. Dean Brown raised his voice at Dr. Hernandez when he confronted her because he was very upset in that he had, only a week earlier, advised her to stop sending antagonistic and insulting emails to fellow faculty members. Dean Brown admitted to the University's Human Resources Office that he was wrong in raising his voice to Dr. Hernandez, and he apologized to Dr. Hernandez. Because of the confrontation with Dean Brown, Dr. Hernandez was fearful that her contract would not be renewed. Many of the classes at the School of Pharmacy are team taught: one course coordinator with several faculty members teaching segments of the course. Essential to team teaching is faculty members exhibiting team work. Dr. Hernandez was one of the team members who taught PHR 2264, Endocrinologic and Musculosketal Pharmacotherapy. The course coordinator was Professor Dana Brown, Ph.D. Dr. Hernandez repeatedly failed to meet established deadlines for team members in PHR 2264. Exam questions from team members for PHR 2264 were to be submitted to Dr. Dana Brown two weeks before the scheduled exams. Her responsibility was to carefully review all questions, including how the questions overlapped with questions submitted by other faculty members. Dr. Hernandez failed to submit timely her exam questions, forcing Dr. Dana Brown to follow-up with Dr. Hernandez regarding the questions. Further, Dr. Hernandez would generally not inform Dr. Dana Brown ahead of time that she would be submitting her exam questions late. On one occasion, Dr. Hernandez submitted her exam questions only one day before the exam. Additionally, exam lectures were to be posted 48 hours in advance of a class. Dr. Hernandez failed to post her exam lectures 48 hours before she taught her class and, generally, posted the exam lectures the night before her class. Students complained to Dr. Dana Brown that Dr. Hernandez was difficult to understand. Dr. Dana Brown observed some of Dr. Hernandez's lectures and thought that Dr. Hernandez failed to answer students' questions. Also, on one occasion, Dr. Dana Brown, responding to an email that she received from Dr. Hernandez, hit "reply all." Dr. Hernandez became upset and raised her voice to Dr. Dana Brown because the response went to persons other than Dr. Hernandez. Dr. Dana Brown spoke to Wagdy Wahba, Ph.D., the then Interim Associate Dean, of the School of Pharmacy several times regarding the problems that she was having with Dr. Hernandez. Summer 2010 In the summer 2010, Dean Brown stepped down as Dean of the School of Pharmacy to focus on teaching. In August 2010, Dr. Ferrill became the Dean of the School of Pharmacy. Fall 2010 Faculty Activities Plan and Report The School of Pharmacy uses a performance instrument for its professors, referred to as a Faculty Activities Plan and Report (FAPR), which is, basically, an evaluation of a professor's performance in the previous year and expectations for the future. A FAPR that shows significant student or faculty concerns about teaching or collegiality is considered deficient. Dr. Wahba completed the FAPR for all faculty members of the School of Pharmacy. Dr. Wahba was Dr. Hernandez's immediate supervisor. He completed her FAPR. In October 2010, Dr. Hernandez received her FAPR from him and met with him to discuss it. In the "Dean's Comments" section for the FAPR, Dr. Wahba included the following issues that he determined that Dr. Hernandez needed to address: [a.] Not showing up for scheduled class in February 2010, and not sending the recorded lecture to the students until 21 days later. [b.] How to improve relationship, communication & cooperation with other faculty & coordinators within the team-taught courses. [c.] How to avoid reactive responses to concerns expressed by colleagues & administration, verbally and via e-mail[.] [d.] Currently not posting lectures on e- college in a timely fashion according to school policy[.] [e.] Currently not submitting exam questions to coordinators in a timely fashion[.] [f.] Showing up late or not at all to scheduled review sessions and committee meetings[.] Dr. Wahba and Dr. Hernandez discussed his comments. Additionally, Dr. Wahba noted in the Dean's Comments section that, of great concern, was how Dr. Hernandez was going to address the negative comments from students in her student surveys. The students' comments mainly revolved around Dr. Hernandez's disorganized lecture presentations and her difficulty in explaining material clearly. During the meeting in October 2010 with Dr. Wahba on the FAPR, Dr. Hernandez showed no willingness to improve in the areas that he had determined deficient. Further, she took the position that she had no deficiencies in her performance and demanded proof from him of her deficiencies. After the October 2010 meeting, Dr. Wahba met with Dr. Hernandez a second time to discuss her FAPR. She continued to resist his efforts to address the areas determined by him to be deficient. After the meetings, the next step in the FAPR process was for Dr. Hernandez to respond to Dr. Wahba's comments with a written plan of action and to sign the FAPR. She failed to do so. She was the only faculty member of the School of Pharmacy who did not complete the FAPR process. Dr. Hernandez blames Dr. Wahba for her not completing the FAPR process, taking the position that his responsibility was to "pursue" her to complete the FAPR process. December 13, 2010 Meeting As Dean of the School of Pharmacy, one of Dr. Ferrill's responsibilities was to review the FAPRs of the School of Pharmacy's faculty. In the fall of 2010, three faculty members had deficient FAPRs: Dr. Hernandez; Luna Bennett, Ph.D.; and Devon Sherwood, Ph.D. Dr. Ferrill met with each of them to discuss their deficient FAPR. Before meeting with Dr. Hernandez, Dr. Ferrill met with Dr. Wahba and discussed Dr. Hernandez's FAPR. Dr. Wahba advised Dr. Ferrill that he had reached an impasse with her in that she had never responded to his comments in the FAPR. On December 13, 2010, Dr. Ferrill met with Dr. Hernandez to discuss her FAPR and her plans to improve on the deficiencies. Others who attended this meeting included Dr. Wahba and Keysha Bryant, Ph.D., a professor in the School of Pharmacy. During the meeting, Drs. Ferrill and Wahba discussed areas in which Dr. Hernandez's performance was good. Further, they discussed the areas of deficiency and informed her that she needed a plan of action to improve in those areas. Additionally, Dr. Ferrill advised Dr. Hernandez that she was at risk of non- renewal of her contract unless she made strides to improve on her areas of deficiency. During the meeting, Dr. Hernandez was not receptive to the discussion regarding her deficiencies. She indicated, among other things, that nothing was wrong with her teaching skills and that she saw no reason to change what she was doing. Additionally, when queried about her plan of action to address the negative comments in the FAPR, she became emotional and raised her voice. Sometime near the end of the meeting, Dr. Hernandez expressed that she was emotionally upset, explaining that her ex- husband was ill and that she was taking care of him. Without questioning from anyone, she stated voluntarily that her ex- husband was living with her, indicating that she recognized that she was sinning in the University's eyes, but not in the eyes of God. The University has a policy against members of the University, including faculty and students, having extramarital sexual relationships. The policy prohibits a member of the University from having extramarital sexual relationships regardless of whether the subject person was divorced, single, or married to someone other than the person with whom the subject person was having a sexual relationship. Dr. Ferrill believed that Dr. Hernandez was admitting to violating the University's policy on extramarital sexual relationships. Dr. Ferrill questioned her further as to whether she was having an extramarital sexual relationship with her ex- husband, but Dr. Hernandez refused to answer. Prior to the meeting on December 13, 2010, Dr. Hernandez had never spoken of her living arrangement or sexual relations with her ex-husband to Dr. Ferrill. Further, prior to the meeting on December 13, 2010, Dr. Ferrill was not aware of Dr. Hernandez's living arrangements. Dr. Ferrell believed that she was required to report any University policy violation or potential violation of which she was or became aware. As a result, Dr. Ferrill advised Dr. Hernandez that she (Dr. Ferrell) was required to report the potential policy violation to her (Dr. Ferrill's) supervisor. After the meeting on December 13, 2010, Dr. Ferrill reported to Provost Joseph Kloba that Dr. Hernandez had admitted to violating the University's policy against extramarital relations. Once Dr. Ferrill made the report to Provost Kloba, she considered that her duty to report was fulfilled. Dr. Ferrell spoke to no one else regarding Dr. Hernandez's living arrangements. Provost Kloba determined that no violation of the University's policy existed and that no further action was warranted. Once Provost Kloba made his decision, Dr. Ferrill considered Dr. Hernandez's living arrangements to be a non-issue. Dr. Hernandez's Living Arrangements In October 2010, Dr. Hernandez's ex-husband had a health crisis while visiting family in Georgia. Due to his health crisis, he suffered, among other things, cognitive deficits and became totally disabled. In November 2010, Dr. Hernandez moved her ex-husband to E. J. Healey Rehabilitation Facility in West Palm Beach, Florida. He remained at the facility until March 2011. The evidence demonstrates that no one at the University was aware of Dr. Hernandez's living arrangements until the meeting on December 13, 2010. Post December 13, 2010 Meeting and Non-Renewal of Contract After the meeting on December 13, 2010, Drs. Ferrill and Wahba gave Dr. Hernandez an extension to respond to her FAPR. Three days later, on December 16, 2010, Dr. Hernandez submitted her response. In her response, Dr. Hernandez indicated that there was no need to make any significant improvements. Further, she indicated that she did not understand the issues presented and would discuss the comments with the University's Human Resources Office. As to students' critical comments, she indicated that she did not know what to do with the comments, but would conduct a research project about it. In January 2011, Dr. Hernandez participated in a group interview conducted by the School of Pharmacy for the position of Dean of Faculty. The interviewee was Seena Haines, Ph.D. Dr. Hernandez asked Dr. Haines questions which appeared to relate to the spring 2010 incident that Dr. Hernandez had with then Dean Brown when he confronted Dr. Hernandez about the email she (Dr. Hernandez) had sent to Dr. Ferrill. Dr. Hernandez's questions to Dr. Haines were considered by Dr. Ferrill to be inappropriate for a group interview; by Dr. Dana Brown to be unprofessional; and by Dr. Wahba to be out of place. Dr. Ferrill recommended to Provost Kloba that Dr. Hernandez's contract not be renewed for another year. Dr. Ferrill's recommendation was based upon the deficiency issues identified in the FAPR regarding Dr. Hernandez's teaching and collegiality and upon Dr. Hernandez's lack of interest in improving her deficiencies. Provost Kloba, who was also the Chief Academic Officer, was responsible for making the decision as to whether to renew Dr. Hernandez's contract. He reviewed, among other things, her FAPRs, including the student comments and her responses, and received feedback from Drs. Ferrill, Wahba and Brown (Dean Brown in spring 2010). Provost Kloba decided to not renew Dr. Hernandez's contract for another year. Dr. Hernandez's living arrangements were not considered and were not a factor in Provost Kloba's decision of non-renewal. Regardless with whom Dr. Hernandez was living, Provost Kloba would not have renewed her contract. By letter dated February 1, 2011, Provost Kloba informed Dr. Hernandez that her contract would not be renewed for another year. By letter dated February 4, 2011, Provost Kloba informed Dr. Hernandez that, effective February 1, 2011, through June 30, 2011, she was placed on paid administrative leave. She received all pay and benefits through the expiration of her annual contract, i.e., June 30, 2011. Divorced Faculty Members The evidence demonstrates that the University employs several faculty members who are divorced. The evidence demonstrates that Dr. Brown (Dean Brown) is divorced. Comparative Employees The evidence fails to demonstrate any similarly situated employee who was not divorced and was treated more favorably than Dr. Hernandez. The evidence fails to demonstrate any employee who was accused of the same or similar conduct and was treated more favorably than Dr. Hernandez. Current Employment Currently, and since January 2012, Dr. Hernandez is a Professor of Medical Sciences at California North State University, College of Pharmacy. She is subject to a yearly appointment. Her yearly salary is $110,000.00.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the discrimination complaint of Maria Hernandez, Ph.D. DONE AND ENTERED this 4th day of February, 2013, in Tallahassee, Leon County, Florida. ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of February, 2013. COPIES FURNISHED: Stuart Silverman, Esquire Stuart Silverman, P.A. Post Office Box 812315 Boca Raton, Florida 33481 Peter L. Sampo, Esquire Lisa Ann McGlynn, Esquire Allen, Norton and Blue, P.A. 121 Majorca Avenue, Third Floor Coral Gables, Florida 33134 Denise Crawford, Agency Clerk Florida Commission on Human Relations Suite 100 2009 Apalachee Parkway Tallahassee, Florida 32301 Cheyanne Costilla, Interim General Counsel Florida Commission on Human Relations Suite 100 2009 Apalachee Parkway Tallahassee, Florida 32301
Findings Of Fact Petitioner, Dr. Erb Fontenot, has been associated with Florida State University (FSU) for over 14 years, after having taught for 14 years in public schools in Louisiana, and two years at the University of West Florida in Pensacola. He originally enrolled at FSU to complete his PhD and simultaneously was hired as an instructor on the faculty of the College of Education. His written appointment to the faculty for the academic year 1975- 1976 was as a non-tenured faculty member at the rank of instructor in the College of Education, Department of College- Wide Instructional Services. The document reflected the special terms or conditions of employment as follows: To teach such courses as are assigned. To conduct research of a publishable quality. To render such other services as the Department, College, or University might assign. The Dean of the College of Education in 1975 was Dr. James L. Gant, who served in such capacity from 1974 to 1983. In 1975, Dean Gant had two associate deans who served with half-time teaching duties and half-time administrative work in his office. Petitioner was also assigned administrative duties half-time as Special Assistant for Academic Affairs and Personnel Relations and the remaining half of his time for instructional duties as assigned. There was also a Director of Planning in the Dean's office who similarly performed administrative duties half-time and teaching duties half-time. During succeeding years, Dean Gant periodically reassigned his staff as the need arose or upon the request of staff members. As a result, re-assignments occurred from time to time which were within the discretion of the Dean. At the time Dean Gant assumed his duties as Dean, the position of Special Assistant for Academic Affairs and Personnel Relations was not a full-time administrative position even though it was so designated in the college's 1972 organizational guide. However, Petitioner testified that during the period preceding Gant becoming Dean of the college, he (Petitioner) was a full- time administrator who taught perhaps one or two courses each semester. His testimony was uncontroverted in this regard and is accepted. Petitioner's contracts after 1976 show appointment Modifier B which is for courtesy faculty status. "Courtesy" faculty is defined in Rule 6C-5.105(1)(i), F.A.C., as "those appointments to a departmental faculty which do not include compensation, may include special faculty privileges such as voting in departmental affairs, and are made in accordance with regular faculty qualifications. . . ." Testimony at the hearing shows that such a status normally involves teaching in a department of a college other than that to which the faculty member is assigned. (Testimony of Petitioner, Gant, Kropp, Edwards, Petitioner's Exhibits 17, 19, Respondent's Exhibits 4-5) At a time undisclosed by the evidence, Petitioner received his doctorate degree and was awarded the academic rank of assistant professor. His employment contract for the 1978- 1979 academic year reflects that he was in a tenure-earning appointment and classified as Director and Assistant Professor under Class Code 9082. The contract reflected special conditions of employment were for him to serve as Special Assistant for Academic Affairs and Personnel Relations. The Instructional and Research Class Code 9082 under the title Director and Assistant professor is described as follows: An academic employee who shall hold the qualifications of the rank of 'assistant professor' and whose major responsibility is the administration of an academic/county research center, institute, or inter- disciplinary function or budgeted entity. This position, being an academic function of the university, is funded by the instructional and research budget and is a faculty class. Under Article VI of the Florida State University Constitution (Rule 6C2-1.04(6), F.A.C.), an assistant professor is considered ineligible for tenure or for re-appointment beyond a seven year maximum. A prerequisite for consideration for tenure is that the faculty member hold the rank of associate professor. (Petitioner's Exhibits la, 15a) Petitioner's contracts for the 1980-1981 and 1981-1982 academic years were basically the same as that for the 1978-1979 academic year. (Petitioner's Composite Exhibit 18) Several years before Petitioner had reached the time when he would be subject to dismissal if tenure had not been obtained, Dean Gant had several discussions with him concerning his status at the university. Petitioner had not been promoted to associate professor and therefore was then ineligible for tenure consideration. Dean Gant pointed out to Petitioner the fact that he needed to conduct the necessary research and teach more in order to be able to meet tenure requirements which could result in recommendations by the faculty and the University for tenure. Petitioner raised questions as to whether or not he could obtain tenure through his performance of administrative duties and Dean Gant indicated that such a result would be unlikely under the normal tenure process because of the necessity for approval by departmental faculty. Eventually, when it became apparent that Petitioner was not going to be promoted, Dean Gant talked with him and decided that a way of keeping him on the faculty was to take him off the tenure-earning track so that he would not be under the "up-or out" rule. (Testimony of Gant) In furtherance of his discussions with Petitioner, Dean Gant thereafter conferred with Dr. Daisy Flory, the University's Dean of Faculties concerning the possibility of retaining Petitioner by placing him in a non-tenured administrative position in order that he could have time to work on his teaching and do research prior to returning to a tenure-earning position. She agreed with this plan and, therefore, by letter of March 24, 1982, Petitioner made a formal request to Dean Gant that his employment status be changed to reflect an administrative and service role with a courtesy rank in the Department of Childhood, Reading, and Special Education in conformity with Article VI of the University constitution. The pertinent provision which is reflected in Rule 6C2-1.04(6)(a)7a, FAC, provides in part as follows: Persons holding an administrative or service role normally hold a courtesy rank in an academic unit and shall not be subject to the rule during such service unless the academic units grant a regular tenure-earning appointment. When the administrative or service function is ended, the person shall receive upon request a tenure-earning appointment in an academic unit. The "rule" referred to in the above-cited provision is the "up-or out" rule relating to non-tenured employees. Dean Gant forwarded Petitioner's letter to Dr. Flory asking that she take appropriate steps to effectuate the change and by memorandum dated April 1, 1982 she indicated that the request had been received and filed in Petitioner's file to indicate his "changed situation." Nevertheless, Petitioner's employment contracts for the 1982-1983 and 1984-1985 academic years reflected that he was still in a tenure-earning appointment. During these years, regardless of the "changed situation", Dean Gant still considered that Petitioner was at the disposal of his academic department head for 50 percent of his time. As a practical matter, Petitioner performed most of his duties in his administrative role and taught only once or twice each term, usually in the late afternoon or evening. (Testimony of Gant, Petitioner, Flory Deposition (Respondent's Exhibit 2), Petitioner's Exhibit 5, 18) Dean Gant retired in December, 1982 and was- succeeded by Dean Bruce W. Tuckman. Dean Tuckman apparently took a different view of Petitioner's situation and considered him to be engaged in a full-time administrative position. This was evidenced by the Dean's memorandum to Dr. Gus Turnbull, University Provost, dated November 2, 1984, whereby the Dean requested that Petitioner receive a direct promotion to the rank of associate professor and tenure in the College of Education. Dean Tuckman pointed out that Petitioner's role was considered unique in comparison to other professors seeking promotion and tenure through the normal process since his heavy administrative assignment had limited his participation in departmental academic activities. Favorable action apparently was not taken on the request since Petitioner remained in the rank of assistant professor. Dean Tuckman's evaluation of Petitioner on May 7, 1985, was "outstanding" and reflected that his primary duties were in administration. In the summer of 1985, Dean Tuckman sought and obtained the approval of Vice-President Turnbull of a salary increase of $6,056 for Petitioner with the stated basis of expansion of his duties to include the office of administration, the business office, coordination of personnel matters, and part of the duties resulting from the loss of an associate dean. (Petitioner's Exhibits 4, 4a, Respondent's Exhibit 1) Dean Tuckman was thereafter assigned to other duties. Petitioner's employment contract for the 1985-1986 academic year was signed on August 7, 1985 by Dean Steve Edwards, Deputy Provost and Dean of Faculties. The contract was similar to those of past years except that it showed that Petitioner was in a non- tenure-earning status and the special conditions of employment were to serve as Director of Administration, Academic Affairs and Personnel Relations. The classification code was 9082 with title of Director and Assistant Professor. (Testimony of Edwards, Petitioner's Exhibit 1) Dr. Robert L. Lathrop was named Interim Dean of the College of Education and assumed those duties on or about September 1, 1985. His previous position had been as Director. for the Center for Studies in Vocational Education, a research organization attached to the College of Education. At the time Dean Lathrop was appointed, the Vice-President of the University, Dr. Turnbull, was engaged in a major strategic planning activity whereby he assigned to all of the college deans the requirement to develop a strategic plan setting major goals for the next five years and securing faculty consensus on those goals. The College of Education was perceived by the administration as being disorganized with the faculty having a lack of confidence in its administration. Accordingly, one of the major roles that Dean Lathrop was charged with by the Vice-President was to restore faculty confidence in the governing structure of the college. After looking into the situation and talking with the individuals who had leadership roles, including the staff and department heads of the college, Dean Lathrop determined that he needed to bring more active faculty representation into the administration of the Dean's office. To this end, he appointed two half-time associate deans from the senior faculty of the college. He examined the functions that Petitioner had been assigned under the prior Dean and his manner of performance. He found that department heads had not received their budget statements for a considerable length of time, that personnel actions had often been delayed and that it was difficult to get decisions in this respect. Dean Lathrop concluded that Petitioner had been assigned too many responsibilities. He also determined that he needed to take over personal control of the distribution of the budget and distribution of faculty assignments in order to exert real leadership in the college. It is important that the Dean be able to move the faculty around where they are most needed and, since there are a limited number of positions, the more utilization he makes of personnel for administration, the less there are for teaching. He therefore determined that all members of the Dean's staff, with the exception of one person who had a commitment from the former Dean, should carry half-time assignments in the Dean's office and half-time assignments in an academic department. (Testimony of Lathrop) Dean Lathrop met with Petitioner in September concerning the latter's long-range career plans, and Petitioner indicated that he desired to continue in academic administration. Dean Lathrop pointed out to him that there is no tenure in an administrative position and that he should give some thought to working toward tenure during the period that the tenure "clock" had stopped running for him and he should utilize this period of time to pursue activities related to obtaining tenure. At this time, Petitioner offered to perform whatever function in the new administration that Dean Lathrop regarded as being appropriate to the needs of the college. Later, Dean Lathrop met with the members of his staff individually, including Petitioner and announced his plans for their assignments. Although Dean Lathrop did not recall that Petitioner voiced any serious objections at that time, he later became aware of a memorandum from Petitioner to the President of the University dated September 24, 1985, in which he protested the reduction and reassignment of some of his former duties and transfer of staff and clerical personnel. Petitioner characterized the reorganization as being retaliatory, punitive, unethical, subversive, and racially motivated. He further requested that an immediate investigation be conducted of the activities and actions taken against him. (Testimony of Lathrop, Petitioner's Exhibit 7) By memorandum of September 25, 1985, Dean Lathrop advised Petitioner of his assignment change as follows: This is in confirmation of my verbal change of your assignment about which I informed you in our conversation of September 18, 1985. Effective that date, I relieved you of responsibilities associated with the Director of Administration portion of your assignment. For the remainder of the academic year I ask that you continue your responsibilities with respect to Affirmative Action, grievances and as ombudsman. This should free up approximately 50% of your time this Fall which may be useful in preparing to assume that proportion of time in your academic department next Spring. Thus, your Spring assignment would be 50% Dean's Office and 50%. Childhood Education. A further memorandum, dated September 27, 1985, made reference to Petitioner's memorandum of September 24 and expanded more specifically on the reassignment of duties with reference to a listing of responsibilities for the Director of Administration and Director of Academic Affairs and Personnel Relations, as contained in the college Guide to Organization, Internal Policies, and Some Procedures. This was a compilation of various policies and duties of positions that had been issued during the time when Dr. Gant was the Dean. However, the description of duties for a particular position was designed to assist personnel of the college in ascertaining the division of assigned responsibilities in the dean's office. They are not position descriptions as contemplated in the career service system because faculty members are not career service employees. Dean Lathrop's memorandum explained that he had distributed the former responsibilities of the Director of Administration portion of Petitioner's former responsibilities for the conduct of the college's business office and word processing centers to himself, department heads, and other staff personnel. These responsibilities had included fiscal management of college funds, personnel actions, and space utilization. The staff position of Director of Academic Affairs and Personnel Relations carried an "ombudsman" role and recommendations to the dean on faculty promotion and tenure, faculty student relations, liaison with university staff offices, affirmative action matters, and various other college administrative functions. These responsibilities were considerably scaled down, as indicated in Dean Lathrop's memorandum. Generally, Petitioner's remaining duties consisted of student matters, affirmative action and minority programs, assisting in the election process for college committees, and monitoring compliance with the Family Educational Rights and Privacy Act and the Administrative Procedure Act. By memorandum dated October 1, 1985, to Dean Lathrop, Petitioner requested that they meet with Dr. Edwards and Dr. Groomes concerning his situation, but there is no evidence that such a meeting took place. (Testimony of Lathrop, Petitioner, Petitioner's Exhibit lb, 8-9, Respondent's Exhibit 6) Petitioner contends that he has always been a member of the Professional Staff of the university and as such has the assurance of annual recommendation for re-appointment in his administrative position. Article VII of the Florida State University constitution, which appears in Rule 6C2-1.04(7), FAC, states pertinently as follows: . . .those persons within a college or school holding academic appointments whose responsibilities do not include teaching, shall be considered members of the Professional Staff. Members of the Professional Staff having appropriate qualifications and responsibilities shall be assigned faculty rank by the President of the University on recommendation of their administrative officers for the purpose of membership in the General Faculty. Members of the Professional Staff shall enjoy the assurance of annual recommendation for reappointment in accordance with policies recommended by the Heads of their respective units and approved by the President of the University and Board of Regents. There are three categories of employees at Florida State University under three pay plans. These are Career Service employees, Administrative and Professional (A&P) employees, and faculty employees. All faculty employees, including those performing substantial administrative duties such as Petitioner, are in the faculty pay plan. Members of the Professional Staff are not in the faculty pay plan, although they hold academic appointments and are assigned faculty rank under Article VII of the university constitution. All members of the Professional Staff are under the A&P pay plan, but all A&P employees are not members of the Professional Staff. A&P employees are traditionally administrative personnel, such as those assigned to the offices of student affairs, business operations, comptroller's officer, admissions, registrars and the like. "Professional Staff" under Article VII of the constitution was a category initiated to cover librarians. These individuals were not members of the faculty and therefore the constitutional provision provided a way to hire professionally trained individuals under conditions that they would find acceptable by the assignment of academic rank. These individuals are not under the faculty pay plan and are not members of the faculty in that sense. Petitioner's status is determined by the Class Code 9082, and he is not a member of the Professional Staff. If he returned to full-time teaching duties, as is usually the case with faculty administrators, he would be under a different class code. (Testimony of Edwards, Parry, Flory Deposition, Respondent's Exhibit 2, Petitioner's Exhibit 2) As a faculty member whose responsibilities included administrative responsibilities involving supervision over other employees by virtue of his designation as a "Director," Petitioner's Class Code 9082 was not covered under the collective bargaining agreement between the state university system of Florida and the United Faculty of Florida. However, University officials and Petitioner acknowledge that the principles embodied in the agreement are ordinarily applied to other faculty personnel, such as Petitioner, unless modified by the Dean of the College. Article 9 of the Collective Bargaining Agreement provides that annual assignments of employees shall not be imposed arbitrarily or unreasonably, and provides for a procedure to resolve assignment disputes. However, these provisions deal with disputes filed prior to the effective date of the assignment. In this case, Petitioner does not dispute the original assignment which was reflected in his 1985 employment contract, but with changes in the assignment that took place after its effective date. (Testimony of Petitioner, Parry, Edwards, Petitioner's Exhibit 3) The past and present University officials who testified at the hearing uniformly agree that a college Dean has the authority to reorganize and re-allocate staff functions in order to accommodate the changes that he feels necessary to efficiently supervise the administration of the college. Each Dean has a different style and, as a former Interim Dean of the College of Education put it: "The Dean can name his team." James Parry, Director of Human Resources, Personne1 Policies and Labor Relations for the Board of Regents, supported the view that a Dean can assign his personnel freely, and that the need for such flexibility is the reason why no formal position descriptions are required for faculty members. Dr. Edwards, Dean of Faculties, testified that a Dean is authorized to assign duties and to change them during the contract period. According to Dr. Edwards, the "special conditions" which are sometimes included in annual employment contracts such as that of Petitioner, are meant to place special emphasis on some part of the functions of the position. They indicate that the administrative part of the faculty members duties will be concentrated in certain areas. However, Deans can assign specific duties from the functions or titles shown in the special conditions. If there was an intent to restrict an employee solely to administrative duties, the special conditions would state "to only serve" in a particular capacity, otherwise, the duties mentioned under the special conditions portion of the contract are subject to reassignment. Also, a faculty member with academic rank must have an assignment that would permit him to perform the duties of that rank. (Testimony of Gant, Kropp, Parry, Edwards, Flory Deposition (Respondent's Exhibit 2)) During the time that Dean Lathrop was serving as Director of the Vocational Education Center in the College of Education, several situations arose that generated employee complaints. These included such matters as the reclassification of the librarian position, and the assignment of duties to a library technical assistant. The latter complaint was later withdrawn, and the reclassification action was also withdrawn after a recommendation to that effect by a university grievance committee. Although a University Equal Opportunity Committee, chaired by Petitioner, had a subcommittee look into the practices of the Education Center to determine if there was any practice of discrimination, the subcommittee found that the main problems in the center were with job classifications and funding of programs and made no findings of any discrimination. Routine personnel action requests of Dean Lathrop concerning the Education Center were reviewed by Petitioner prior to decisions by the Dean. These included matters such as recommendations for salary increases, promotions, establishment and reclassification of positions, and layoff actions. As can be expected, some of Lathrop's requests were approved and some disapproved. Petitioner is of the view that because he recommended disapproval of some of the requests, Lathrop was biased against him and that this resulted in his reassignment of responsibilities in 1985. Dean Lathrop denied any such personal feelings and there is no evidence to establish Petitioner's claims in this regard. In fact, Dean Gant testified that, during his tenure, Lathrop had managed the Center in a very competent manner, protected employee's rights, and never evidenced any discriminatory intent or retaliation against anyone. (Testimony of Petitioner, Lathrop, Gant, Respondent's Exhibits 1la-c, 12-13) Petitioner performed his administrative duties prior to the 1985-1986 school year in a creditable manner. Dean Gant characterized his performance as "excellent" and Dean Tuckman gave him an "outstanding" evaluation during the 1984-1985 school year. (Testimony of Gant, Petitioner's Exhibit 4a, 6) It is agreed by the parties that Petitioner's salary, leave, health and medical or retirement benefits under the 1985- 1986 contract have not been reduced. (Prehearing stipulation)
Findings Of Fact The petitioners herein are all professors employed by the respondent Florida State University (FSU) as faculty members in the School of Music. Pursuant to a "petition for an administrative determination" filed with the Division of Administrative Hearings, petitioners seek a declaration that the written documents appended to the petition are rules within the meaning of the Administrative Procedure Act (APA) and, because they were not promulgated in accordance with the APA, they constitute an invalid exercise of delegated legislative authority. The respondent contends that the petitioners herein are not substantially affected persons within the meaning of F.S.120.56(I) and thus they lack standing to challenge said documents. By a motion to dismiss, respondent further contends that the instant proceeding constitutes a collateral attack upon final agency action and therefore the Division of Administrative Hearings lacks jurisdiction to entertain a rule challenge petition. Finally, respondent urges that the documents in question do not fall within the definition of a rule and are, in fact, specifically exempted from said definition. It is claimed that said documents constitute either internal management memoranda or the preparation or modification of either agency budgets or contractual provisions reached as a result of collective bargaining. The five documents attached to the petition will be described in more detail below. Briefly, these documents are as follows: The "Florida State University procedures" for the award of merit salary and other increases; A portion of the School of Music bylaws; A faculty roster form listing each faculty member of the School of Music with a space provided for an evaluation; A form entitled faculty evaluation summary; and The student instructional rating system (SIRS) interpretation manual. Each of these documents (Exhibits 1 through 5) were utilized by the respondent to determine merit pay increases for each of the petitioners for the 1978-79 school year. Unless amended prior to the evaluation process for the 1979-80 school year, each document will be utilized again in determining merit increases for faculty members of the School of Music. Having been evaluated for merit salary increases under these documents in the past, with a more than reasonable likelihood of future use of the documents for future evaluations, petitioners have adequately demonstrated that they are substantially affected persons within the meaning of F.S.120.56. Not only has their present remuneration for their services been determined pursuant to these documents, their future annual salaries will be affected by the determination reached as a result of the original use of these documents. Unlike the case of Fla. Dept. of Offender Rehabilitation v. Jerry, 353 So.2d 1230 (Fla. App. 1st, 1978), petitioners have illustrated that the impact of the challenged documents are continual, having both present and prospective impact. Faculty members of a university have a substantial interest in the emoluments of their employment. Written documents which substantially affect that interest, if otherwise falling within the APA's definition of rule, can be challenged if a proper petition is filed pursuant to Section 120.56. The respondent contends that the case of HRS v. Barr, 359 So.2d 503 (Fla. App. 1st 1978) bars the instant proceeding. That case held that Hearing Officers had no collateral review power over final agency action taken after regular proceedings under other provisions of the APA. The undersigned finds, and so concludes, that the Barr case, which dealt with a declaratory statement, has no applicability to the facts of the present case. The present petition is not a collateral attack upon an adjudication of petitioners' rights by the agency. The documents in question do not constitute final agency action and the petitioners herein are not challenging the actual determinations of their merit pay. The petition challenges the documents which govern the procedure by which the merit pay increases are made, and the Hearing Officer limited all testimony to that issue. Testimony regarding the results of the evaluation process which occurred in May of 1978 and the manner in which that particular evaluation was conducted was not permitted. The petition alleged that the documents in question constituted rules within the meaning and intent of the APA and that they were substantially affected by said rules. Thus, the petition properly alleged a cause of action under Section 120.56. Having found that the petitioners are substantially affected by the documents utilized by FSU to determine merit increases for faculty members, it now must be determined whether said documents constitute rules within the meaning and intent of the APA. The controlling statutory provision is F.S. 120.52(14), which reads in relevant part as follows: 'Rule' means each agency statement of general applicability that implements, interprets, or prescribes law or policy or describes the organization, procedure, or practice requirements of an agency and includes any form which imposes any requirement or solicits any information not specifically required by statute or by an existing rule. The term also includes the amendment or repeal of a rule. The term does not include: (a) internal management memoranda which do not affect either the private interest of a person or any plan or procedure important to the public and which have no application outside the agency issuing the memorandum; (c) the preparation or modification of: agency budgets. contractual provisions reached as a result of collective bargaining. The first document challenged herein is entitled "Florida State University Procedures" and it contains procedures and guidelines for merit increases, equity increases, and other increases. It divides merit increases into two levels, defines the levels and prescribes, in general form, the procedures to be utilized in evaluating all members of the faculty for merit raises. A "Note" at the end of this document describes the document as FSU "internal procedures for implementing the Statement Concerning Merit and Other Salary Increases." This "Statement" is contained in the collective bargaining agreement between the Florida Board of Regents, State University System of Florida and the United Faculty of Florida. The document in question was created by a committee appointed by President Sliger of FSU. The task of the committee was to devise procedures for the distribution of discretionary funds. The procedures apply generally and equally to each segment of the University and to each faculty member. Other than the "Statement" referred to above, which simply sets forth the criteria by which to evaluate faculty members for merit salary increases, the only other reference in the collective bargaining agreement to salaries is contained in Article 23. Section 23.1(b)(2) simply refers to "discretionary increases in recognition of merit." The document entitled "FSU Procedures" is an agency statement of general applicability that implements, interprets and prescribes law or policy. It sets forth the procedure to be utilized in the discretionary award of merit pay increases. Contrary to the assertions of respondent, this document does not fall within any of the relevant exceptions to the term "rule." Although the procedure is for use internally within the University, it affects the private interest of each faculty member in the compensation he or she receives for services performed for the University. Thus, it is not an "internal management memoranda" exception. While the Procedures do provide the method by which allocated and budgeted funds will be distributed, the document itself does not "budget" any of the funds. The testimony at the hearing was to the effect that these Procedures were created and posted prior to the University's budget submissions and that the budget division of FSU had no role in the creation of the document. Thus, this document cannot be considered as preparation or modification of an agency budget. Finally, the "FSU Procedures" do not fall within the exception for the preparation or modification of "contractual provisions reached as a result of collective bargaining." The document is not a "contractual provision." Although its contents refer to the collective bargaining agreement, the agreement itself only provides that the award of merit salary increases are to be discretionary with the University. Indeed, the testimony and documentary evidence adduced at the hearing illustrates that the Procedures were created and put into operation prior to the time that the collective bargaining agreement became effective. In and of itself, this agency statement purports to create certain rights and adversely affect other rights with regard to funds available for merit increases. See State Dept. of Administration v. Stevens, 344 So.2d 290 (Fla. App. 1st, 1977). This agency statement having general applicability that implements, prescribes and interprets the University's policy regarding award of discretionary merit increases is a rule within the meaning of the APA. The University having failed to properly promulgate said rule in accordance with F.S. 120.54, the document entitled "Florida State University Procedures" constitutes an invalid exercise of delegated legislative authority. The next document for consideration is a portion of the bylaws of the School of Music at FSU. This consists of a set of directives which define the organization of a peer evaluation committee and prescribe the criteria and procedures under which that committee will evaluate faculty members of the School of Music and make recommendations to the Dean regarding merit raises. The criteria to be considered are identical to the criteria already contained in either existing rules of the Board of Regents and FSU (F.A.C. Ch. 6C-5.05 and 6C2-4.33) or in the "statement" contained in the collective bargaining agreement. Thus, the criteria in the bylaws simply constitute a restatement of either existing rules or the contractual provisions of the collective bargaining agreement. The only relevant remaining portion of the bylaws is that portion which directs that the School of Music faculty advisory committee shall also sit as the peer evaluation committee for merit salary increases. This does not constitute an "agency statement of general applicability" within the definition of a rule. It is simply the statement of the School of Music, which is not an agency within the meaning of the APA. The FSU School of Music bylaws do not fall within the APA's definition of a rule. The third document is a form or a worksheet consisting of a School of Music faculty roster with five spaces provided for the peer evaluation committee to rank each faculty member. Each committee member is directed to review the personnel file for each faculty member and, consistent with the established procedures and criteria, complete the worksheet which is then tabulated with the results being communicated to the Dean in the form of a recommendation. A form may fall within the definition of a rule if it otherwise fits the definition and if it "imposes any requirement or solicits any information not specifically required by statute or by an existing rule." F.S. 120.52(14). This form is not an agency statement of general applicability and it does not impose requirements or solicit information not already required by existing rule or statute. It is simply a data collection device utilized by the School of Music to arrive at an evaluation of its faculty members' effectiveness in the traditional areas of professional activity as required by existing rules and the "Statement" contained in the collective bargaining agreement. It is not an "agency statement" within the definition of a rule. The same rationale applies to the fourth and fifth documents under review herein. Both of these documents -- the "faculty evaluation summary" and the "SIRS interpretation manual" -- have been utilized by FSU for over five years to evaluate the overall performance and the teaching effectiveness of its faculty. They are not agency statements and the forms do not impose requirements or solicit information not already required by existing rule or statute. The areas of performance to be evaluated in the "faculty evaluation summary" are described in detail in existing Rules 6C-5.05(2) and 6C2-4.33, as well as in the collective bargaining agreement. The SIRS evaluation is specifically referred to in FSU Rule 6C2-4.33(1)(d) and is simply another tool to be utilized in the total evaluation process. These forms are not "rules" within the meaning and intent of the APA. The undersigned Hearing Officer has carefully considered the legal arguments raised by the parties, both at the hearing and in written memoranda submitted subsequent to the hearing. To the extent that the legal arguments of the parties were deemed meritorious, they have been addressed herein. One final matter deserves treatment. At the close of the hearing, petitioners sought to publish and introduce into evidence certain answers to interrogatories, and the University sought to publish others completed by Dean Wiley Housewright. Dean Housewright was present throughout the hearing and was twice called as a witness. His testimony included a discussion concerning the subject of each interrogatory sought to be published. The proper time to delineate inconsistencies between his testimony and the answers to interrogatories, if any, was during the examination of this witness. Therefore, the requests of both parties to publish these responses to interrogatories are denied.
Findings Of Fact Phillip Ortwein was employed by USF December 1, 1966 on a 7-month contract expiring June 30, 1967. On his application for employment (Exhibit 16) he indicated that he held a Masters Degree in Physical Education from Indiana University in 1948 and that he had done 1 1/2 years work on a Doctorate Degree which he expected to complete in 1968. He was employed in the Physical Education Department and assigned duties in the functional program as well as in the activities program instructing in tennis. His contract was renewed on July 1, 1967 for the period 9/1/67 to 6/30/68 on a 12-month appointment (Exhibit 4). His contract was again renewed July 1, 1968 for the 12-month period ending 6/30/69 (Exhibit 5). By memo dated March 3, 1969 Petitioner was notified that his contract would not be renewed effective June 30, 1970. Upon receipt of this notice Petitioner went to the Director of the Physical Education Division who had authored the notice to see if there was any hope his contract would be renewed. The Director, Dr. Bowers, advised Petitioner that there was always hope but that the notice remained effective. He was advised that he should upgrade his knowledge of changes in the academic physical education field. Petitioner was also aware that his immediate superior, Professor Prather, was not satisfied with his performance in the functional program of the Physical Educa-tional Division. Then or shortly thereafter Petitioner requested to be relieved of his duties in the functional program to devote more time to upgrading his knowledge and this was granted. Some six months later Petitioner first spent time in the library for this purpose. On January 27, 1969 the Physical Education Tenure Committee was requested by Bowers to submit a recommendation regarding the tenure status of Ortwein. At this time Ortwein was not eligible for tenure as he had not been employed by USF for the three years required. However, this was the only professor evaluation committee extant and Bowers, in order to get faculty input on whether or not to recommend renewal of Ortwein's contract, asked for the evaluation. On February 26, 1969, Bowers was advised the committee had voted 3 for granting tenure and 3 for deferring tenure. By letter dated December 22, 1969 Dean Edwin P. Martin, following a discussion with Ortwein, advised Petitioner that, due to an apparent misunderstanding by Ortwein regarding Bowers' notice he, Martin, was rescinding the termination notice of March 3, 1969, and that his employment would be terminated December 31, 1970. Following further discussion with Bowers Petitioner requested the full faculty in the Physical Education Division be polled to evaluate him. Results of this poll were 3 recommending granting tenure, 9 opposed, and 3 undecided. Due to administrative error Appointment-Reappointment Notice dated September 1, 1970 (Exhibit 7) renewing Petitioner's contract from" September 18, 1971 to June 13, 1971 was forwarded to and accepted by Petitioner. By letter to Ortwein dated October 9, 1970 (Exhibit 11) Dean Martin acknowledged that the contract (Exhibit 7) served to extend Petitioner's termination dated to June 13, 1971. Exhibit 12, letter of December 14, 1970, incorrectly dated December 14, 1971, Harris Dean, Acting President of USF, notified Petitioner that his employment would be terminated at the end of quarter 1, 1971, more than one year from the date of the letter. Exhibit 8, Notice of Appointment - Reappointment dated December 14, 1970 extended Ortwein's appointment to December 16, 1971. The parties stipulated that evidence subsequent to this latter termination date was not relevant to these proceedings. The pleadings indicate Ortwein was finally terminated in June, 1975. The letter of termination (or nonreappointment) dated December 14, 1970 was the first notice received by Respondent signed by the president of USF and this notice provided twelve months advance notice to Ortwein that his appointment would not be renewed. By letter of December 10, 1970 (Exhibit 13) Bowers presented to Acting President Dean four reasons for the recommendation not to reappoint Ortwein. These were: (1) Lack of performance in the area of functional physical education; (2) Contribution limited to area of tennis; (3) No contribution to the department outside the area of tennis; and (4) When the entire faculty of the Physical Education Division were polled there were 3 votes for and 9 against his continuing employment with 3 abstentions. Petitioner's performance in the Physical Education Division was unsatisfactory. He exhibited difficulty handling large groups and communicating instructions to them. His contributions at staff meetings were non-existent or negligible. His relations with students were considered brusk and too militaristic by his superiors. Neither Petitioner nor any other witness testified to any personal animosities between them and Petitioners; or of any conflict with any religious, political or social philosophies between them and Petitioner. In fact all witnesses testified no such personal difficulties existed or were apparent.
Conclusions It is hereby ordered and adjudged that Petitioner's complaint be and the same is hereby dismissed. Even if the complaint were to stand, the record supports, with competent substantial evidence, the conclusion that the Petitioner should not be re-employed by the University. Therefore, that decision is affirmed and adopted as the final action of this agency. Done and ordered at Tampa, Florida, on September 14, 1977. Wm. REECE SMITH JR. President
The Issue Whether there is just cause to terminate the employment of Respondent, Kimberly Rosario (Respondent), as an employee with the Hernando County School Board (Petitioner or School Board).
Findings Of Fact The School Board is the duly authorized entity responsible for the operation, control, and supervision of all public schools, grades K through 12, in Hernando County, Florida, and for otherwise providing public education to school- aged children in the county. Art. IX, § 4(b), Fla. Const.; § 1001.32, Fla. Stat.1/ Rick Markford is the principal at J.D. Floyd K-8 (J.D. Floyd), a school in the Petitioner’s school district. As principal, he has ultimate supervisory authority over all staff members at the school, including custodians. In December 2013, Mr. Markford hired Respondent to serve as a Custodian 1 to work the night shift at J.D. Floyd. Shortly after starting her employment, Respondent’s excessive absenteeism rose to a level where she was taking impermissible leave without pay. As a result, Mr. Markford contacted the School Board’s human resources department for guidance on how to proceed. The School Board has enacted Policy 6.37 to provide the grounds for termination for all educational support and non- certified instructional personnel in its school district. Under Policy 6.37, Group III offenses warrant termination for a first- time violation. Respondent was specifically charged with violating Policy 6.37 Group III offenses “(5) Excessive absenteeism or excessive tardiness” and “(8) Absence from duty without authority, including refusal to report to duty at any time as directed.” Although the Petitioner can proceed directly to termination for a first-time Group III offense, it utilizes a five-step progressive discipline process for excessive absenteeism and absence from duty without authority. The first step is a coaching session with the employee. If the issue continues, the second step is a corrective action plan. The third step is a formal conference with an employee conference report placed in the employee’s file. Step four is a letter of reprimand. And the fifth step is a referral to Human Resources for further action, up to and including termination. In accordance with School Board policy, because of Respondent’s excessive absences, Mr. Markford initiated the five-step process described above. Step 1 occurred on March 7, 2014, when Mr. Markford held a coaching session with Respondent to discuss her absences without pay. She was specifically warned that any further unpaid absences would result in a second meeting and a corrective action plan. On April 17, 2014, Mr. Markford met with Respondent to address her excessive absenteeism and issue a corrective action plan in accordance with Step 2. As part of the corrective action plan, Respondent was informed that all future absences for the 2013-14 school year would require a doctor’s note and she would need to directly contact Mr. Markford. Despite the coaching, Respondent’s absences without pay continued, requiring Mr. Markford to initiate Step 3 in a June 23, 2014, meeting with Respondent. The employee conference report reflects that Respondent was absent without pay from May 29, 2014, through June 16, 2014. Petitioner’s fiscal year runs from July 1 to June 30, each year. Although Respondent had no entitlement to continued employment beyond June 30, 2014, Mr. Markford decided to reappoint her for the 2014-15 school year to give her a second chance. Because it was a new school year, any further issues with absenteeism would start at Step 1 of the five-step process rather than continuing directly to Step 4. On July 14, 2014, shortly after the start of the new school year, Mr. Markford had to meet with Respondent to initiate Step 1 in the process due to her taking leave without pay on July 2, 3, and 9, 2014. In the corresponding coaching- session note, Respondent was issued a corrective action plan. Respondent’s impermissible absences continued. On July 23, 2014, Mr. Markford met with Respondent to discuss a corrective action plan related to her continued excessive absenteeism, including her absence on July 16, 2014. That same day, Mr. Markford met with Respondent for an Employee Conference Report due to her continued absences without pay, including her absence on July 17, 2014. As reflected in the Employee Conference Report, Respondent was again informed that being in attendance every day was important. Respondent was directed to contact Mr. Markford directly to notify him of any future absences and that she must provide a doctor’s note for such absences. Despite the coaching, Respondent continued to be absent without pay and failed to comply with the corrective action plan. As a result, Mr. Markford issued her a Letter of Reprimand on September 14, 2014. Mr. Markford again explained to Respondent that “[p]unctual and regular attendance is an essential function of [her] job.” In the Letter of Reprimand, which Respondent signed, Respondent was specifically informed that “any further incidents of absenteeism will be considered willful absenteeism and [that Mr. Markford] will recommend that [her] employment with the [School Board] be terminated.” Following the reprimand, Mr. Markford informed the School Board’s human resources office of the issues with Respondent’s excessive absences and identified the disciplinary procedures he had followed. It was only after Respondent had exhibited a clear pattern of absenteeism and had been specifically warned that her continued actions would lead to a recommendation for termination that she filed a complaint against a co-worker alleging harassment. Specifically, on September 26, 2014, Respondent alleged that Christopher Griesbeck, night Custodian 1 at J.D. Floyd, said her “days are numbered here and laughed.” The complaint also referenced an April 2014 incident where Mr. Griesbeck, who was allegedly upset that Respondent was appointed to a day shift instead of him, took her to classrooms she was responsible for and pointed out deficiencies. There was no allegation that the alleged harassment was sexual in nature. Mr. Markford conducted an investigation into the harassment allegations by interviewing Respondent; Vincent Juliano, a Custodian 2 at J.D. Floyd; Mr. Griesbeck; and several Custodian 1s at J.D. Floyd. After completing the investigation, Mr. Markford determined that Respondent’s “complaint of working in a hostile environment is unfounded.” The investigation revealed that, as a result of Respondent’s high absenteeism, there was a degree of resentment and frustration among some of the custodial staff. Mr. Markford took steps to address the issue and developed a plan to limit the interaction between Respondent and Mr. Griesbeck going forward. Mr. Markford met with Respondent to inform her of his findings. On October 17, 2014, Respondent suffered an injury at work when she mis-stepped and twisted her knee, aggravating a pre-existing injury. A workers’ compensation injury report was completed on October 20, 2014, at Mr. Markford’s insistence and Respondent thereafter received treatment. The next day, October 21, 2014, Respondent was cleared to return to work with restrictions for her left knee. Consistent with the restrictions, as well as the restrictions she had over the next couple of months, J.D. Floyd provided her with light-duty work. On December 15, 2014, Respondent’s treating physician cleared her to return to work from her workers’ compensation injury with no restrictions. But Respondent was absent without authority on December 15, 17, 18, 19, 22, and 23, 2014. The Petitioner’s school district had a vacation break from December 24, 2014, through January 4, 2015. After returning from the break, Respondent’s unauthorized absenteeism continued. On January 6, 2015, Respondent’s treating physician cleared her to return to work on January 12, 2015, again with no restrictions. Despite this, Respondent’s high absenteeism and failure to follow the corrective action plan continued. On January 28, 2015, Mr. Markford held a meeting with Respondent because she was absent on January 12, 13, 14, 16, 20, 21, 26, and 27, 2015, without providing a doctor’s note. Mr. Markford explained that he considered Respondent’s actions to be insubordination and the matter would be referred to Human Resources. Respondent’s absences continued. At the time of those continued absences, Respondent would send text messages to Mr. Markford explaining she was not coming to work, and Mr. Markford would respond by informing her that she did not have any leave time and she was required to come to work. She did not comply with the directions. On February 2, 2015, Petitioner’s Director of Human Resources, Dr. Sarah Meaker, wrote a memorandum to the Petitioner’s Equity, Policy, Insurance and Compliance Administrator, Heather Martin, recommending that disciplinary action be imposed against Respondent based on Respondent’s continual absence from work without a doctor’s note. On February 12, 2015, Mr. Markford met with Respondent regarding her continued failure to come to work and non- compliance with the corrective action plan. This was the first workday in February that Respondent showed up to work. Respondent refused to sign any documentation and left work early without authority. On February 13, 2015, Ms. Martin informed Respondent that a pre-determination meeting would be scheduled regarding Respondent’s excessive absenteeism and absenteeism without leave in violation of School Board Policy 6.37 Group III (5) and (8). Petitioner had difficulty trying to contact Respondent in an effort to move forward with the disciplinary process. In reply to a text message from Mr. Markford informing her to contact Ms. Martin, Respondent responded: “They have my number they can use it.” In preparation for the predetermination meeting, Ms. Martin had a calendar created for the 2014-15 school year which showed the number of days and partial days that Respondent was absent. Specifically, for July 2014, Respondent missed five full days and one partial day; for August 2014, she missed four full days and three partial days; for September 2014, she missed seven full days and one partial day; for October 2014, she missed four full days and three partial days; for November 2014, she missed six full days and three partial days; for December 2014, she missed nine full days; for January 2015, she missed 12 full days and five partial days; and for February 2015, through the 18th of that month, she missed 11 full days and one partial day out of the 12 possible work days. The predetermination meeting was held on February 18, 2015. Minutes were kept for the meeting and thereafter transcribed. At the predetermination hearing, Respondent admitted that she was no longer on workers’ compensation because the doctor cleared her as maximum medical improvement (MMI). Respondent offered no valid justification for her excessive absenteeism and absenteeism without authority. Following the meeting, Ms. Martin recommended to the Superintendent that Respondent be terminated due to her excessive absenteeism and absence without authority. On February 19, 2015, Petitioner’s Superintendent of schools, Dr. Lori Romano, charged Respondent with violating School Board Policy 6.37 Group III (5) and (8) based on Respondent “being excessively absent and absent without authority.” Dr. Romano explained there was probable cause for discipline and that she would recommend Respondent’s termination. After Respondent indicated she wished to appeal the recommendation, the matter was transferred to DOAH and an administrative hearing was scheduled. Respondent did not attend the hearing. Respondent did not give advance notice that she would not attend the hearing and she did not explain or provide a reason for her absence.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered terminating Respondent’s employment with the School Board. DONE AND ENTERED this 17th day of July, 2015, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III Administrative Law Judge Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, Florida32399-3060 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of July, 2015.
