The Issue Petitioner University of Florida seeks to terminate Respondent, pursuant to Rules 6C1-1.007, 6C1-1.008, 6C1-7.018, and 6C1-7.048, Florida Administrative Code, for conduct alleged as follows: Abusing the faculty member-student relationship; Fostering, by example, an environment in which substance abuse is promoted to students whom Respondent supervises; Creating a hostile learning environment; and Retaliation in the course of a sexual harassment investigation.
Findings Of Fact In order to resolve the legal issues herein, it is not necessary to relate all the evidence taken, to relate the stipulated facts verbatim, or to record the entire sequence of events and all the opinions various witnesses expressed of one another. Accordingly, and in accord with Section 120.57(1), Florida Statutes, only material findings of fact have been made.3 In doing so, effort has been made to reconcile the witnesses' respective testimony so that all witnesses may be found to speak the truth, but where conflicts existed, the credibility issue has been resolved on the characteristics listed in Standard Jury Instruction, (Civil) 2.2b.4 Respondent was initially hired at UF on July 17, 1992, in a non-permanent position as a Research Scientist, at its main campus in Gainesville, Florida. Beginning April 1, 1997, and at all times material, Respondent was employed on the main campus as a non-permanent Assistant Professor in the Institute of Food and Agriculture Sciences (IFAS), Department of Fisheries and Aquatic Sciences, at UF. As such, Respondent was assigned teaching, research, and extension duties that include teaching undergraduate and graduate courses and mentoring students. Respondent did not hold tenure, but was in a tenure-earning status for nine years. Respondent is an ichthyologist and was employed in the specialized academic field of wildlife conservation genetics, within a limited professional community comprised of only approximately 100 professionals in the United States. Students, graduate students, and colleagues of Respondent understand that this is a tight-knit professional community and that Dr. Robert Chapman of the University of Charleston, South Carolina, is part of that "elite 100." As with any profession, networking is important to students' career paths. Anna Bass was never a UF student or a student of Respondent. However, she was directly employed by UF from March 1995 to the summer of 2000, as Respondent's lab manager. She worked for Respondent elsewhere prior to that period and has known him since approximately 1992 or 1993. As Assistant Professor, Respondent served as the Major Professor and Thesis Committee Advisor for UF graduate students Joel Carlin, Alicia Pearce, and Luiz Rocha. Currently, and at all times material, Joel Carlin was enrolled as an IFAS graduate student at UF. Alicia Pearce graduated from the UF-IFAS program in May 2001. Katherine Moore was never Respondent's student and never attended UF. However, Respondent had been on Ms. Moore's graduate thesis committee when she was a student at the University of Charleston. She graduated from that university approximately 1998-1999. Ms. Moore has been employed as a biologist at the National Ocean Service in Charleston, South Carolina, since 1990. The student-professor relationship is based on mutual trust and respect, with the student's best interest at heart, for either undergraduate or graduate students. As major professor and chair of thesis committees, Respondent has substantial power over the career paths of graduate students he has advised. Major professors are expected to serve as mentors to their students, providing guidance and acting as professional role models to assist and mold judgment. They are relied upon by students and former students for future educational, job, and research grant references. The graduate student-major professor relationship persists beyond graduation and often endures for a life-time. Graduates often continue original research in cooperation with their mentors and co-author professional research articles with them. Graduates frequently seek the counsel of their mentors for important professional post-graduate decisions. Among his students and colleagues, Respondent has a reputation for partying. His liquor of choice is tequila. He has held what are called "late night lab sessions" with his graduate students in off-campus Gainesville music clubs and bars. Student attendance at these "late night lab sessions" are not required, but it is understood they can be helpful for building both rapport and a career. Respondent also entertains, as do other professors, by serving food and alcohol in his home, so that students may meet and network with visiting speakers/ colleagues in their chosen field(s). During a party hosted by Respondent at his home in May of 1997, he served and consumed beer and tequila in the presence of adult IFAS students. He became inebriated at that party. Respondent, Mr. Carlin, and a visiting scientist, met at a music club in Gainesville and drank alcohol together on one occasion. In early June 2001, Respondent attended an informal going-away party for the same colleague at a Gainesville restaurant with Mr. Carlin and Mr. Carlin's undergraduate girlfriend. Alcohol was consumed and at the end of the evening, the three felt too inebriated to drive legally or safely. However, Respondent drove home and did nothing to prevent the others from driving home. Respondent's explanation for this last occasion was that he was under great emotional stress due to his wife's recent miscarriage. Respondent has consumed alcoholic beverages at off- campus locations at least 3-4 times per year with adult IFAS students whom he academically supervised. In 1998, when Mr. Carlin, an adult, was interviewing on the UF Campus at a morning appointment with Respondent for admission to the UF graduate program, Respondent invited him to meet that night, at approximately 11:00 p.m., with Respondent and his graduate students in a Gainesville establishment where they consumed alcohol. Attendance at the bar was not a quid pro quo for admission, and Mr. Carlin never thought it was. Mr. Carlin remained for the meeting and drinking and was ultimately admitted into the program. Respondent considered his invitation to be a friendly opportunity for Mr. Carlin to talk informally with other graduate degree candidates so that all concerned could determine if the fit was right for Mr. Carlin in the program he wanted to pursue at UF. Mr. Carlin did not object to the drinking, but he felt the late night hour was inconvenient, since he had expected to leave town after his morning interview, and unprofessional, since he never got to discuss dissertation ideas at that time with Respondent. Once, when Respondent had been in Charleston, South Carolina, helping Ms. Moore "finish up [her] Masters," they were at a post-reception party in Respondent's motel room. Other guests were drinking alcohol and smoking pot (marijuana). Dr. Robert Chapman was also present. Respondent and Dr. Chapman settled which of their names should appear first on a jointly- authored professional publication with a "tequila bottle toss." Each professor-author tossed an empty tequila bottle into the motel swimming pool from the motel room balcony. The man whose bottle hit closest to the pool's center, won. The date of this event is not clear, but apparently it occurred while Respondent was employed by UF. There is no reason to suppose UF students were present. Respondent has possessed liquor at off-campus professional conferences in the presence of adult UF students for whom he had some academic responsibility. Several years ago, at a professional reception held for Respondent, he autographed the closure strap at the back of the bra worn by a non-UF undergraduate female, approximately nineteen years old, who was flirting with him in the presence of Ms. Moore. Ms. Moore described the young woman as someone attending her first professional conference who was in awe of Respondent as a "star" in their field. Respondent admitted to making sexually suggestive witticisms to the undergraduate female at the time. No one took him seriously or was offended. Respondent has repeatedly possessed or smoked marijuana, a controlled substance under Florida law, in the presence of others with whom he was professionally associated.5 Use or possession of marijuana on campus offends UF's "drug-free policy." Use or possession of marijuana by a UF faculty member or student anywhere is considered "disruptive behavior" subject to UF discipline. See Rules 6C1-1.008(1)(m) and 6C1-7.048(1)(n), Florida Administrative Code, and the following Conclusions of Law. In June 2001, Respondent used marijuana at Mr. Carlin's house with Mr. Carlin and Mr. Carlin's live-in undergraduate girlfriend present. Respondent's explanation for this was that he was under great emotional stress due to his wife's recent miscarriage. Ms. Moore has observed Respondent smoke marijuana in the presence of students at most of the off-campus professional meetings they have attended over the years from 1992 to the present, but the students she referred-to probably attended universities other than UF. Ms. Pearce has observed Respondent smoke marijuana in the presence of UF students approximately 15 times. She did not specify the locations as on- or off-campus. While she was his student and in his UF office, on the UF campus, Respondent showed Ms. Pearce a "highlighter" pen that he carried in his pocket, which pen had a false bottom for hiding a stash of marijuana. Ms. Bass has smoked marijuana with Petitioner multiple times. She did not specify the location(s) as on- or off- the UF campus. In July 2001, Alicia Pearce was 29 years old. During her UF graduate studies, Respondent had been her major professor and thesis committee advisor. She had received her Master's Degree diploma from UF on May 5, 2001, and UF could not require her to complete any further requirements. (See Finding of Fact 8.) However, according to Dr. Richard Jones, UF Dean of Research, it was expected that after award of their degrees, former graduate students would place their theses in reviewed (preferably peer-reviewed) publications. Respondent had agreed that Ms. Pearce could present her thesis after graduation, due to her relocation to North Carolina. In order to present her paper after graduation, Ms. Pearce submitted her research paper abstract and her registration papers and fees for the American Society of Ichthyologists and Herpetologists (ASIH) Conference in February, 2001, before her graduation from UF. The conference was scheduled to be held on July 5-10, 2001, at State College, Pennsylvania (Penn State). Respondent also attended the July 5-10, 2001, ASIH Conference in the capacity of a UF-IFAS faculty member to, among other purposes, mentor his graduate students, Pearce, Carlin, and Rocha, all of whom were presenting papers at the conference. Respondent was not required to request leave, and did not request leave, from UF to attend the conference. He was on salary from UF while at the conference. Respondent was entitled to request a travel reimbursement from UF, as did Mr. Carlin, but elected not to do so. Respondent has attended the ASIH Conference approximately four times while employed by UF-IFAS. At the 2001 ASIH Conference, Ms. Pearce roomed in a dorm with Luiz Rocha. On July 6, 2001, Respondent used his credit card to purchase dinner and alcoholic drinks at a restaurant/bar in the Penn State Conference Center Hotel for a group of adult colleagues and adult students, including Carlin, Pearce, and Rocha. The ASIH Conference was being held in the hotel. The hotel was considered part of the Penn State campus. During dinner, Respondent made a sexually suggestive comment to Ms. Pearce, who was the only female present, and remarked that it could not be sexual harassment because she was no longer his student. Neither Ms. Pearce nor anyone else took him seriously or was offended. After dinner, Petitioner invited Ms. Pearce to his hotel room, along with another senior colleague, to discuss a tip Respondent had received several weeks earlier that a UF student had fabricated research. Respondent wanted the senior colleague's advice. He wanted Ms. Pearce's perspective because she had been in the lab during a relevant period of time. Their conversation in Respondent's hotel room lasted about an hour. During this period of time, marijuana was present in Respondent's hotel room. Respondent did not admit to bringing the drug with him to the conference, but the fact that marijuana was present in Respondent's hotel room means the contraband drug was in his constructive possession. Respondent admitted holding, sniffing, and/or smoking6 a "token toke" in the hotel during the dates of the 2001 ASIH Conference, and apparently in the presence of Ms. Pearce and the adult colleague. Marijuana use or possession is contrary to Penn State University's drug-free policy and rules. Respondent, his colleague, and Ms. Pearce next attended the official conference reception downstairs in the hotel. Alcohol was served and consumed. Later the same evening, Respondent and Ms. Pearce returned to his hotel room. Both had already drunk a great deal of alcohol and proceeded to drink more. They were observed alone together in the hotel room by Mr. Carlin, whom they sent away. Ms. Pearce became further inebriated during a long conversation with Respondent, which included discussion of her fear of doing the professional presentation coming up at the conference, past lab work, and intimate details of their respective married lives. She then passed out in the bathroom. Respondent knew Ms. Pearce was already partially inebriated and vulnerable before he took her to his hotel room, because she had begun to cause a scene at the conference's reception. Respondent also knew she had a history of irresponsible behavior with regard to alcohol because in May 2000, she and Mr. Carlin, high on alcohol, had telephoned Respondent's home repeatedly at approximately 2:00 a.m., in the morning. They then drove, in that condition, to Anna Bass's house, where they "crashed" for the night. Thereafter, Respondent had told them he was distancing himself from them; told them they should never call him again at that hour; and gave them extra lab work. On July 6, 2001, Respondent assisted Ms. Pearce from the hotel bathroom into one of his hotel room beds. It is undisputed that the couple then kissed and groped each other. Respondent's and Ms. Pearce's versions of what happened next, or how long it took, are fairly similar. Where they differ, the undersigned has balanced Ms. Pearce's candor and demeanor or lack thereof while testifying, her past experiences with marijuana and excessive use of alcohol, her expressed intent to go to the ASIH Conference with the purpose of indulging in heavy drinking, and her inability to recall the evening's events in sequence or in detail, against Respondent's testimony, which is discredited in part by his prior inconsistent statements and admissions. Having assessed their respective versions, it is found that: Respondent removed or dislodged Ms. Pearce's shirt and bra. Their groping progressed to Respondent's massaging Ms. Pearce's breasts and the two of them mutually massaging each other's genitals. At that point, Respondent broke it off and removed himself from the bed. Ms. Pearce then turned over and passed out or went to sleep. Respondent then went to sleep in another bed. About 4:00 a.m., Ms. Pearce awoke, dressed, and left the room, but since the shuttle bus had left, she was unable to return to her dorm. Respondent followed her to the lobby. She wanted to know if they had had intercourse. Respondent felt he was very clear in stating that no intercourse had occurred. However, Respondent's answer seemed non-specific to Ms. Pearce and did not satisfy her that intercourse had not occurred. She was very concerned, because she and her husband had been trying to conceive a child. However, she allowed Respondent to persuade her to return to his room to talk until 7:00 a.m., when the shuttle began to run again, and she then left the hotel. Respondent explained the July 6, 2001, sexual incident with Ms. Pearce as his being emotionally unstable due to his wife's recent miscarriage. Ms. Pearce did not say anything more to Respondent about their sexual incident until later on July 7, 2001, when she asked him not to tell anybody. He agreed that there was "no use in other people getting hurt." They behaved normally to each other in public throughout the next several days and were not alone together. Respondent helped Ms. Pearce prepare to present her paper later that weekend, and she did well for her first presentation on July 10, 2001. She presented Respondent with an autographed copy of her completed thesis after her presentation. The dedication warmly expressed her thanks to him for his mentorship of her. On Tuesday, July 10, 2001, the last day of the conference, after her presentation, Ms. Pearce also filed a criminal complaint with the Penn State University Police Department, alleging Respondent had sexually assaulted her. Respondent was confronted by two police officers and questioned extensively. He cooperated and provided a statement and blood for a blood test. He was not arrested or charged. Back in Gainesville, Respondent spoke to Mr. Carlin by telephone on July 13, 2001. Upon Respondent's inquiry, Mr. Carlin stated that he had learned of the Penn State investigation from Ms. Pearce when he drove her to the airport on July 10, 2001. Both Respondent and Mr. Carlin agreed Mr. Carlin had no first-hand knowledge of the situation. Respondent advised Mr. Carlin to stay way clear of the situation. On Monday, July 16, 2001, Respondent again spoke with Mr. Carlin by telephone. On that date, Respondent told Mr. Carlin that Mr. Carlin's and Luiz Rocha's names had also been of interest to the Penn State Police. Because Respondent said, "How would you like to be accused of rape?" Mr. Carlin could have interpreted this conversation as a threat. He did not. On July 22, 2001, Dr. William Lindberg, Respondent's Department Chairman, submitted his evaluation of Respondent's academic performance for the 2000-2001 academic year, which rated Respondent as overall "exemplary." This was a precursor to Respondent's getting tenure. Dr. Lindberg did not know about the events of the 2001 ASIH Conference when he submitted the evaluation. It is undisputed that Respondent is a "star" in "the elite 100," has published widely, is a popular professor, and has obtained valuable research grants for UF. On July 23, 2001, Ms. Pearce filed a complaint regarding Respondent with UF-IFAS. It was categorized as "sexual harassment." The investigation was cloaked in confidentiality. At the time of his July 13 and 16, 2001, telephone conversations with Mr. Carlin, Respondent could not have known that UF would be investigating him. On August 6, 2001, Ms. Pearce was interviewed by the UF investigator. On or about August 6-8, 2001, Mr. Carlin was interviewed by, and/or provided chronological notes to, the UF investigator and Dr. Lindberg. On August 8, 2001, Ms. Moore was interviewed by the UF investigator and related the "signing of the bra strap" event. On August 16, 2001, Respondent met with Dean Cheek, Dean Jones, Chairman Lindberg, and the investigator. Respondent saw notes on, or was made aware of, all or some of the statements made by those interviewed. He was informed that he probably would be terminated. He also was instructed to be circumspect and respectful in dealing with the situation and potential witnesses. Respondent and Dr. Lindberg shared a car back to their department after this meeting. On the ride, Respondent asked Lindberg what he should do about the paper he was co- authoring with Pearce. Lindberg told him that if he did not have much invested in it, the high ground was to step away. Lindberg did not recall Respondent's also asking what he should do about papers he co-authored with Carlin and Moore. Mr. Carlin was interviewed by Dr. Lindberg and the investigator again after Respondent met with the Deans. At hearing, Ms. Pearce presented speculations, but no credible evidence, that Respondent had done, or planned to do, anything to her in retribution for her sexual harassment charge. As of the disputed-fact hearing, Respondent had not removed his name from their joint paper. On August 17, 2001, Respondent telephoned Ms. Moore and told her to remove his name from the publication they had recently co-authored and were preparing for publication. He asked her never to contact him again because it was painful for him to talk to someone who told stories about him and he was tired of her complaints about her employer, who was a friend of his. Ms. Moore considered Respondent's telephone call to constitute her "professional excommunication." Respondent's withdrawal of his authorship created an awkward situation for Ms. Moore that necessitated her sending a letter of explanation to the publisher to clarify that Respondent's withdrawal was not due to a disagreement regarding her research results. The paper will be published anyway. Ms. Moore contacted Chairman Lindberg on August 23, 2001, and complained about Respondent's action and expressed her fear of further professional reprisals from Respondent. Dr. Lindberg agreed that if the withdrawal of Respondent's name became an issue with the publisher, he would write to the publisher for Ms. Moore and explain the situation in general terms. On August 14, 2001, Anna Bass was interviewed by the UF investigator. On August 19, 2001, Ms. Bass sent an e-mail message to Mr. Carlin which amounted to a diatribe against him and Ms. Pearce for speaking to the UF investigator. On August 28, 2001, a Notice of Proposed Dismissal was issued against Respondent by UF. On September 14, 2001, after learning that Respondent's dismissal had been proposed, Ms. Bass contacted Chairman Lindberg and charged Mr. Carlin with sexual harassment against her which allegedly occurred more than a year previous, when he and Ms. Pearce "crashed" at her home. (See Finding of Fact 34.) Ms. Bass denied that Respondent put her up to filing these belated charges. Respondent denied asking anyone to retaliate against, or speak to, Mr. Carlin for the purpose of preventing or altering the information Mr. Carlin gave in interviews with the UF investigator or UF authorities or to discredit his information. Respondent further testified that he did not ask Dr. Robert Chapman to author any correspondence related to the investigation. However, he admitted discussing his situation under the sexual harassment charges with Dr. Chapman. Respondent had problems with Mr. Carlin previous to the current investigation. On one occasion, he had to request that Mr. Carlin not annoy his female lab assistant. Respondent had previously disciplined Mr. Carlin for making annoying late night telephone calls to Respondent's home. (See Finding of Fact 34.) At the 2001 ASIH Conference, Respondent had approached Mr. Carlin about whether Mr. Carlin wanted to remain in competition for the Stoye Award, because of some concerns over the eligibility of his research. Mr. Carlin and Respondent have different understandings of what was involved in this discussion, but Mr. Carlin did not remove his name and Respondent did not interfere with that choice. Mr. Carlin went on to win the prestigious award. Some other members of "the elite 100" had also had a problem with Mr. Carlin concerning access to a limited supply of endangered species samples he and another graduate student needed. Mr. Carlin and the other researcher were in a race to publish their respective dissertations first. Dr. Robert Chapman was aware of the controversy. On Friday, September 14, 2001, after hearing about Respondent's proposed dismissal from employment, Dr. Chapman and Respondent had a telephone conversation during which they discussed Mr. Carlin. Respondent expressed his frustration at the complaint filed by Ms. Pearce and accused her of "filing false claims" against him. Respondent stated that Ms. Moore had made an unflattering anecdote and "contributed a story that portrayed [Respondent] in a negative light." Respondent also stated that Mr. Carlin had alleged that Respondent had harassed him. Dr. Chapman was then critical of the "ethics" of Mr. Carlin and described him as "shiftless." On Friday, September 14, 2001, Dr. Chapman sent an e-mail message to Mr. Carlin expressing anger and shame and stating in part that, "I fear that your career is in severe jeopardy. No one I have talked to will hire you after this." These comments of Dr. Chapman were directed to the rare species sample controversy but mixed in with a diatribe about Respondent's situation, as if they were part of the same complaint. On Saturday, September 15, 2001, Dr. Chapman sent an e-mail message to Jimmy Cheek, UF-IFAS Dean of Academic Programs, accusing Mr. Carlin of aiding and abetting a shameful assault upon Respondent and questioning Mr. Carlin's "honor and integrity," referring to Mr. Carlin as "a slimy worm." In this same e-mail, Dr. Chapman stated that "Ms. Moore is a thief," and a radical feminist who was out to get Respondent. Apparently, Dr. Chapman sent a similar missive to Dean Jones. Respondent had provided the deans' names to Dr. Chapman and did not dissuade him from writing them. On Sunday, September 16, 2001, Dr. Chapman sent an e-mail message to Mr. Carlin, apologizing for writing him in anger but not for what he had written to him on September 14, 2001. He told Mr. Carlin that his "first allegiance is to the professor" and advised him that "[I]nterviews with administrators are not an obligation. You have the right to decline and only the courts can force it." Dr. Chapman also stated that Mr. Carlin should talk with Respondent "about whether he should continue to serve as your professor" and further advised him to "take a low profile." While stating he would not circulate rare species sample rumors beyond those persons who knew of the rare species sample controversy before, and that he would be professional if asked about Mr. Carlin's competence, Dr. Chapman also stated he would volunteer nothing for Mr. Carlin. Dr. Chapman is a former employment supervisor of Mr. Carlin who strongly recommended him for admission to UF's graduate school on December 16, 1997. Mr. Carlin now feels he is unable to list Dr. Chapman as a reference because he questions Mr. Carlin's intellect and moral character and will accordingly give Mr. Carlin bad references rather than good ones. Mr. Carlin has great concern that Respondent has ostracized and vilified him for his role in the UF complaint review process. Mr. Carlin informed Chairman Lindberg that he fears his career is over and he has lost his place in his chosen academic field. Mr. Carlin also speculates that Respondent will now attempt to have his Stoye Award revoked, but there is no evidence Respondent has made any move in that direction to date. After Mr. Carlin was interviewed in the complaint review process, Respondent substituted his name for Mr. Carlin's name as the "corresponding author" on one of their current joint research publications which had been pending since June. He did not remove Mr. Carlin's name as first author. Changing the name of the corresponding author is not an unusual occurrence with regard to academic publications. In this case, it may benefit Mr. Carlin in getting published, because Respondent is friends with the publisher. However, the effect of the name-switch is that Mr. Carlin has lost control over the correspondence, putting Respondent in a position to delay or take the publication out of sequence for printing, if he chooses to retaliate against Mr. Carlin. On September 18, 2001, a Predetermination Meeting was held at Respondent's request. On October 8, 2001, UF issued its decision to dismiss Respondent effective October 10, 2001. Even after termination, sometime in December, 2001, Respondent was cooperating with input for a second publication he and Mr. Carlin co-authored. He has, however, begun to investigate the data behind Ms. Pearce's and Mr. Carlin's papers presented at the 2001 ASIH Conference. According to Chairman Lindberg, who testified by deposition, Respondent breached his professional ethics and student mentoring responsibilities by his behavior at the ASIH conference with Ms. Pearce. According to Dean Jones, Respondent's conduct at the ASIH Conference was contrary to UF-IFAS expectations of a responsible faculty member's interactions with students and abused the faculty member-student relationship.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the University of Florida enter a final order ratifying its termination of Respondent effective October 10, 2001. DONE AND ENTERED this 31st day of May, 2002, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of May, 2002.
The Issue The issue in this case is whether the Petitioner, Rene Delgado Leon, M.D., is eligible for examination for licensure to practice medicine in the state of Florida. The Petitioner, of course, contends that he is eligible. The Respondent, Board of Medical Examiners, contends that the Petitioner has failed to demonstrate eligibility, having previously advised him, inter alia: Your application and supporting documentation contained substantial omissions of material information relative to your medical education. Additionally, your application and supporting documentation does not provide sufficient information to demonstrate that you can practice medicine with reasonable skill and safety. See Section 458.301, Florida Statutes.
Findings Of Fact Based on the stipulations of the parties, on the exhibits received in evidence, and on the testimony of the witnesses at the hearing, I make the following findings of fact. The Petitioner, Dr. Rene Pedizo Delgado Leon, was born on November 26, 1936, in Cuba. All of his formal education prior to medical school was obtained in Cuba. He attended medical schools, off and on, at various times and places between 1955 and June of 1980. His medical education commenced in 1955 at the Medical School of the University of Havana and ended when he-was awarded his medical degree from the University of Dominica in June of 1980. The Petitioner's first language was Spanish and he is not completely fluent in the English language. When communicating in English he appears to have a tendency to interpret statements and questions in a very literal manner. The Petitioner does not appear to have intended to deceive the Board of Medical Examiners or to misrepresent information about his education and experience. Nevertheless, he has not been very clear about a number of details. Since receiving his degree from the University of Dominica in 1980, the Petitioner has completed a residency in pathology, has passed the FLEX exam in conjunction with his application for licensure in the state of Georgia, and has been licensed to practice medicine in the state of Georgia. There were several discrepancies between information given by the Petitioner to the Board of Medical Examiners and to the Hearing Officer concerning various aspects of his background, particularly concerning his medical education. With regard to his medical education, Petitioner listed on his first application that he attended medical school in Havana, Cuba, from April 1954 until December 1962. On his second application he stated that he attended medical school in Havana, Cuba, from September 1955 until September 1960. He testified before the Foreign Medical Graduate Committee that he attended medical school at the University of Havana from 1955 until 1962. At the final hearing he testified that he attended the University of Havana from 1955 until 1962. On his first application, in response to the direction that he list all universities or colleges where he attended classes and received training as a medical student, he stated only that he attended the University of Dominica from June of 1977 until June of 1980. He subsequently filed a form, received by the Board on October 26, 1983, stating that he had attended the University of Zaragoza, Zaragoza, Spain, and received training as a medical student from November of 1974 until April of 1975. On his second application, he stated that he had attended the University of Zaragoza as a medical student from November of 1974 until April of 1975. At the final hearing he testified that in 1973 while he was in Zaragoza he applied to revalidate old courses taken in Havana and that thereafter he took all examinations up to the third year. He stated that he took other courses in Zaragoza, but that he did not take the examinations for any of the medical courses taken in Zaragoza. He also testified that he was given credit for courses at Zaragoza even though he did not take the examinations. The next segment of his medical education was consistently testified to as having been had at the Universidad Central del Este in the Dominican Republic. He attended the Universidad Central del Este for only one semester, during which he took six or seven subjects. He testified that Universidad Central del Este did give him some credit for the third year of medical school; in spite of the fact that he did not take examinations in any of the third-year courses he took in Zaragoza. In January of 1979 he transferred to Universidad Nordestana and spent approximately one year there. Univeraidad Nordestana gave him two and one half to three years of credit. Although his initial application showed that he had attended the University of Dominica in the West Indies from June of 1977 until June of 1980, his subsequent written and oral testimony was that he was enrolled at the University of Dominica only from January of 1980 until June of 1980. He testified before the Foreign Medical Graduate Committee that at the time he transferred from Nordestana, he was basically finished with his medical education and he said he transferred to Dominica because they did not talk in English in Santo Domingo. He also testified that he transferred to Dominica so that he could get some exposure to how medicine was practiced in the United States. Petitioner testified that although he transferred to the University of Dominica and he received his degree from the University of Dominica six months after he transferred there, he did not pay any monies to the University of Dominica. His explanation of why he did not pay money to the University of Dominica is that he wrote things for them, like a pathology booklet. The application form which Petitioner completed requested that he specify all places of residence since beginning medical training. On his first application he showed that he resided in Dominica, West Indies, from January of 1980 until June of 1980. On his second application he listed as residences since initiation of medical training only the University of Miami, Jackson Memorial, VA Hospital, and the University of South Florida, Tampa. In August of 1983 he followed up the second application with a letter to Mrs. Faircloth which stated that his place of residence while attending medical school was the "students quarters and dormitories" at Portsmouth, University of Dominica, West Indies. However, at the hearing before the Foreign Medical Graduate Committee and at the final hearing, Petitioner admitted that he was, in fact, on the campus of the University of Dominica only one day, and that was on graduation day. In fact, when he testified before the Foreign Medical Graduate Committee, he was specifically asked, "When you left Nordestana, where did you go?" To that question he replied, "Oh, to Dominica." However, he later admitted that when he left Nordestana, he went to Miami and he did not go to Dominica until he went six months later in order to graduate. On both of his written applications, Petitioner was asked to list the degrees earned other than M.D. On neither application did he list a bachelor's degree. Yet, in testimony before the Committee and at the final hearing, he testified that he had earned the equivalent of a B.S. in chemistry at the University of Havana. He testified that the reason that he omitted it was that he thought the question referred to medical education. However; in response to the same question, he listed that he had obtained a Licensee in Science and a Doctor in Science from the University of Zaragoza. With regard to the matter of what clerkships, if any, Petitioner performed as part of his medical education, the record shows that he was enrolled at the University of Dominica, the school from which he received a medical degree, from January or February of 1980 until June of 1980. The record also shows that during that five- or six-month period he performed what purported to be clerkships at the VA Hospital and at Coral Gables Hospital, in Miami, and at the same time was an employee of the VA Hospital. He testified that his clerkship at the VA Hospital was in pathology and that he was employed full time in the same area as he was receiving clerkship credit. He arranged the clerkships himself and informed the university of the clerkships. He testified that he did the same activities as the other clerks did, but he worked approximately forty hours and they worked thirty to forty hours. He effected his transfer to the University of Dominica by writing to the New York office and by taking some "required" examinations in basic sciences and clinical studies. He took the examinations in Miami and passed everything but gynecology. He eventually passed gynecology, but not until May of 1980 after he had almost completed clerkships. He testified that when he did his "rotation" at the VA Hospital, he was told that he could "moonlight." He testified that he did all of the autopsies while the other medical students watched. He testified that he went in to work at about 7:00 a.m. and left around 4:00 p.m. and that the other residents did not arrive until about 8:00 a.m. However, he did testify that the clerks arrived at 6:00 a.m. Petitioner testified that he was doing a clerkship at the time, not a residency, and that it was the extra time that he put in that justified his being both paid and given credit for an educational experience. Dr. Robert M. Clark was Petitioner's supervisor during the period of approximately January of 1980 until June of 1980. Petitioner worked in the morgue as a Physician's Assistant and also did "resident physician work." Petitioner was paid at the same time as he was doing a rotation because there was a shortage of residents. Petitioner had the same exposure to pathology as the other residents, all of whom were from the University of Miami. None of the other students were paid employees. A Physician's Assistant requires two years of medical school. Dr. Clark was introduced to Petitioner by Dr. Kuhnhardt. Dr. Kuhnhardt was not connected in any way with the medical school at the University of Dominica. The only other purported clerkship about which there was testimony at the hearing related to a clerkship at Coral Gables Hospital. That clerkship was under Dr. Hurst. That clerkship was done from January of 1980 until June of 1980, the same period during which the clerkship at the VA Hospital was done. Petitioner testified that he went to Coral Gables Hospital after he left the VA Hospital, usually after 4:00 p.m., and stayed however long was necessary, possibly as late as 8:00 or midnight. Dr. Hurst only let the students observe medical procedures. That clerkship was conducted in a community hospital. As for the supervision by the school, the testimony was that the school played no role in arranging the clerkships. Petitioner testified that people from the school came for general meetings every once in a while during the clerkships. As for evaluation, Petitioner testified that the school sent evaluation forms to him and he distributed the forms to whoever was supervising him.
Recommendation Based upon all of the foregoing it is my recommendation, because of the contradictions and uncertainties on the record in this case regarding the nature of the Petitioner's medical education, that the Board of Medical Examiner issue a final order denying the Petitioner's application for licensure by examination without prejudice to the filing of any future application for licensure by examination or endorsement, unless; for reasons analogous to those set forth in the Lopez decision, supra, the Board is persuaded that the shortcomings in the application and its supporting evidence may be overlooked in light of the Petitioner's achievements since 1980. DONE AND ORDERED this 3rd day of January, 1986, at Tallahassee, Florida. MICHAEL M. PARRISH, 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 3rd day of January, 1986. COPIES FURNISHED: M. Catherine Lannon, Esquire Assistant Attorney General Department of Legal Affairs Room LL-04, The Capitol Tallahassee, Florida 32301 Jorge A. Sibila, Esquire 2751 Coral Way Miami, Florida 33145 Dorothy Faircloth; Executive Director Board of Medical Examiners Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Fred Roche; Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Salvatore A. Carpino, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 APPENDIX The following are my specific rulings on each of the proposed findings of fact submitted by each of the parties. Rulings on Petitioner's proposed findings: The Petitioner's proposed findings of fact consist of a two- line introductory clause and six unnumbered indented paragraphs. The six unnumbered indented paragraphs are addressed below in the order in which they appear in the Petitioner's proposed findings of fact. First Paragraph: Rejected. This paragraph is merely a commentary on the state of the record and does not contain any proposed finding of fact. Second Paragraph: Rejected for the same reason as the first paragraph. Third Paragraph: Rejected in part and accepted in part. Rejected portions are rejected for the most part for the same reason as the rejection of the first two paragraphs. The "fully explained" portion of this paragraph is rejected as not supported by the greater weight of the evidence. Findings have been made consistent with the portions of this paragraph relating to when Petitioner's medical education began and ended, his completion of a residency in pathology, and his passing of the FLEX examination. Fourth Paragraph: The first sentence of this paragraph is rejected in part because it is merely a commentary on the state of the record and in part because it is inconsistent with the evidence of record. Dr. Clark did not explain the Petitioner's work in detail: to the contrary, his testimony was rather vague about a number of the details and he failed to recall a number of specific details. The last sentence of this paragraph is rejected because it is not supported by competent substantial evidence. Fifth Paragraph: Rejected for the same reason as the first paragraph. Sixth paragraph: The first sentence of this paragraph is rejected because the Petitioner's explanations were incomplete. With regard to the second sentence of this paragraph, it is accepted that the Petitioner is "not fluent/native in the English language or in legal terminology," and that the Petitioner did not intend to deceive the Board or misrepresent information to the Board. m e remainder of the second sentence is rejected on the grounds that it is in part irrelevant and immaterial as well as on the grounds that the ultimate factual conclusion urged in the second sentence is not warranted by the evidence in the record. Rulings on Respondent's proposed findings: The Respondent's proposed findings of fact consist of seventeen separately numbered paragraphs. The paragraph numbers which follow correspond to the numbers of the paragraphs of the Respondent's proposed findings. Accepted in substance with certain gratuitous editorial material deleted. Accepted in substance. Accepted in substance with the exception of the sentence reading: "In contradiction, he testified at the final hearing, on both direct and cross-examination, that he furthered his medical education in Spain in 1970." The quoted sentence is rejected because it does not accurately reflect the totality of the Petitioner's testimony on this subject. Some other redundant material in this paragraph is also rejected. Rejected on the grounds that it consists of irrelevant and cumulative details which are not necessary to the disposition of this case. Accepted in substance with certain gratuitous editorial material deleted. The first sentence of this paragraph is accepted. The second sentence is accepted with the exception of the words ". . . at which time he needed three years." The quoted language is rejected as not being supported by persuasive competent substantial evidence. Accepted. The first two sentences of this paragraph are accepted in substance. The last sentence is rejected as irrelevant in part, cumulative in part, and not supported by competent substantial evidence in part. Accepted in substance with certain gratuitous editorial material deleted. Accepted. Accepted in part and rejected in part. Reasons for rejection include the feet that although most of this paragraph is an accurate summary of portions of the Petitioner's testimony; some of the testimony on this subject was not persuasive and has not been used as the basis for findings of fact. The parenthetical mention of the pathology booklet is rejected because there is no competent substantial evidence as to when Petitioner wrote any pathology books Accepted in substance. Accepted in part and rejected in part. Reasons for rejection include the fact that although much of this paragraph is an accurate summary of portions of Dr. Clark's testimony, much of the testimony on this subject was not persuasive and has not been used as the basis for findings of fact. Portions of this paragraph have also been rejected on the grounds that they constitute commentary on the quality of the testimony or argument and are not proposed findings of fact. Accepted in part and rejected in part. Reasons for rejection include the fact that although most of this paragraph is an accurate summery of portions of the Petitioner's testimony, much of the testimony on this subject was not persuasive and has not been used as the basis for findings of fact. Accepted. Rejected as findings of fact because it constitutes argument rather than proposed findings of fact. [Much of the argument is well taken, but it is argument nevertheless and not appropriately part of the findings of fact.] Rejected for the same reason as Paragraph 16.
Findings Of Fact Respondent David Lee Lockhart, age 14, has been a student at Arvida Junior High School (Arvida), in Dade County, Florida, during the school years 1985-1986 and 1986-1987. Respondent has been enrolled at Arvida in an exceptional student program where he attends mainstream classes with a general student population and classes especially designed for students found to have learning disabilities. Respondent has been diagnosed as a learning disabled child. The academic grades Respondent received the 1985-1986 and 1986-1987 school years and 1986 summer session were mostly "F"s and "D"s. Similarly, his conduct and effort rating for the same period were poor. Mrs. Katheleen L. Belews, a special learning disabilities teacher, had Respondent as a student during the 1986-1987 school year. While enrolled in that class, Respondent would frequently arrive late and without materials. He performed only about 10 percent of his homework assignments. During class time Respondent required much personalized attention from Mrs. Belews before going on task, resulting in his completing only about 50 percent of his assigned class work. In Mrs. Belews' class, Respondent interrupted other students with constant talking, repeatedly refusing to sit in his assigned seat when asked to, and frequently being rude and disrespectful to Mrs. Belews with considerable verbal sparring which could be interpreted as "back talk." Respondent repeatedly refused to serve the detentions assigned by Mrs. Belews for disciplinary purposes. Myra Lowell, a special education teacher, also had Respondent as a student. Respondent repeated the same pattern of behavior in her class as had been experienced by Mrs. Belews. He refused to go on task immediately, remaining idle for as much as 16 minutes, performed very little homework or class work, refused to take his assigned seat, and caused frequent disruptions in class. Respondent acted as if Mrs. Lowell had no right to direct him, insisting always upon having the last word. His verbal sparring with her became argumentative and disrespectful. On one occasion, as a result of his argumentativeness and defiance, Mrs. Lowell had cause to remove him from her classroom. Mrs. Judy Roberts is a varying exceptionality teacher who also taught Respondent. In her class, Respondent turned in only one homework assignment during the 1986-1987 school year. By her estimate, 90 percent of the time he refused to do any class work. Unlike other learning disabled students that regularly come to class on time and behave reasonably well, Respondent was excessively tardy to class, frequently cut class, and engaged in generally disruptive behavior in class. In one instance, Mrs. Roberts intercepted a note written by Respondent indicating that he was urging another student to cause a distraction so that Respondent could take the keys from Mrs. Roberts' desk. Upon investigation, Mrs. Roberts determined that her keys had in fact been taken and found them among Respondent's belongings. Although Respondent defended this action as something akin to horsing around or playing a practical joke, it clearly was of a more serious nature and disrupted the class. At Arvida, student case management referral forms are generally reserved for serious behavior problems. Mrs. Belews, Mrs. Lowell, and Mrs. Roberts each issued one or more student case management referral forms in regard to Respondent. These forms specified, among other causes for referral, Respondent's lack of interest in school, failing grade average, argumentative and disrespectful behavior, and disruptive attitude. Respondent received 25 other student case management referral forms from other teachers. These reports also dealt with Respondent's lack of interest in school and complained of his defiance of reasonable authority, his skipping class, his excessive talking in class, and his refusal to do work respectfully and without argument. As a result, Respondent was frequently involved in conflicts of a disruptive nature which led to his being placed on outdoor suspension 11 times between May 1986 and March 1987, and on indoor suspension 5 times between February and December 1986. However, it is noted that referrals alleging violence or potential violence either were not substantiated or were adequately refuted by Respondent's testimony. As a counselor at Arvida, Mrs. Jeanne Knauber worked very frequently with Respondent. From her testimony, it is apparent that Respondent was disinterested in school and was simply not responding to the various techniques used by teachers, counselors, and administrators to make him more interested, and discourage his misbehavior and thereby improve his academic performance. Mrs. Knauber volunteered that the only technique she knew of that had not been tried with Respondent was the cork Experience Program, a program in which students are placed in part-time employment while still in school. This could not be tried because such a program is not available at Arvida. Mrs. Knauber, who is a psychologist, was careful to protect the essential confidentially of disclosures made by Respondent to her, however, her professional assessment of his situation is threefold: (1) Respondent's learning disability is not the primary cause of his misbehavior; (2) the primary cause of Respondent's misbehavior is his poor self image; (3) it is in the best interest of Respondent both from a learning disability treatment perspective and from a disciplinary perspective that he be assigned to the J.R.E. Lee Center, an opportunity school, because the opportunity school's lower student-to-teacher ratio and more structured program can assist Respondent in directing his energies to successful academic performance. Mrs. Knauber volunteered that if Respondent can achieve a satisfactory academic performance at J.R.E. Lee Center in the next year, he will then become eligible for a senior high school which offers a work experience program and a work experience program will be in Respondent's best interest toward rendering him employable. Mr. Robert Kalinsky, assistant principal, had numerous conversations with Respondent's mother and grandmother concerning his excessive absences, poor behavior, and lack of progress. Further, he counseled with Respondent on a one- to-one basis almost every day during certain periods of the two academic years Respondent has been at Arvida. However, neither the mother nor the grandmother have so far been able to cause a significant change in Respondent's defiant and disinterested attitude at school. Although Respondent has recently (since the administrative reassignment process began) been placed in the custody of his grandmother and she testified that she could control him, he has still received several student case management referrals during her short tenure as guardian. Several of these referrals seem to overlap and seem to be the result of misunderstandings of whether or not detentions were properly given or served. However, due to the time frame involved and the problems of communication between the school administrators and teachers and the grandmother when the Respondent is used as a conduit, there is little realistic hope that Respondent can "shape up" in a regular school system. The criteria used for identifying students with learning disabilities involves an assessment of learning skills such as attention span, coordination, reading ability, etc. From the testimony of Mrs. Belews, Mrs. Roberts, and Mrs. Knauber it was evident that Respondent's current problems are not related in any meaningful way to his learning disability, but rather are related to persistent unacceptable conduct which interferes with his learning, interferes with the learning process of others, and results in frequent conflicts of a disruptive nature during the school day. Indeed, like many learning disabled students, Respondent has a high intelligence quotient (IQ) but is in need of continuous individualized special attention so that he may learn to process information correctly. It appears that he can receive that type of attention in J.R.E. Lee Center. Further, the opinion of Mrs. Knauber was that the Exceptional Student Program at the J.R.E. Lee Center would meet Respondent's learning disability needs and that the more structured disciplinary environment there would provide additional opportunities for his overall improvement, whereas permitting Respondent to remain in a regular school would be counterproductive for him personally and would improperly disrupt the education process of other students.
Recommendation Upon consideration of the foregoing, it is, RECOMMENDED that the School Board of Dade County enter its Final Order assigning Respondent to the school system's opportunity school program at J.R.E. Lee Center with the specific requirement that he be assigned to an appropriate Exceptional Student Program based upon his existing diagnosis and analysis. DONE and RECOMMENDED this 12th day of June, 1987, at Tallahassee, Florida. ELLA JANE P. DAVIS, 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 12th day of June, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-1256 The following constitute rulings pursuant to Section 120.59(2), Florida Statutes, upon Petitioner's proposed findings of fact. Covered in FOF 1. Covered under Background and Procedure; not necessary to disposition of the issues at bar. Covered in FOF 2. Covered in FOF 3. 5-7. Covered in FOF 4; what is rejected is rejected as not supported by the record as a whole. Covered in FOF 5. Covered in FOF 6. Covered in FOF 7; what is rejected is rejected as not supported by the record as a whole. 11 & 14. Covered in FOF 3 and 10 but modified to reflect the competent substantial evidence as a whole; what is rejected is rejected as not supported by the record as a whole. Covered in FOF 9; what is rejected is rejected as not supported by the record as a whole. Covered in FOF 10. COPIES FURNISHED: Leonard Britton, Superintendent School Board of Dade County 1410 Northeast Second Avenue Miami, Florida 33132 Madelyn P. Schere, Esquire Dade County Public Schools 1410 Northeast Second Avenue Miami, Florida 33132 Jaime Claudio Bovell, Esquire 370 Minorca Avenue Coral Gables, Florida 33134 Martha Washington o/b/o David Lee Lockhart 15525 Southwest 140th Terrace Richmond Heights, Florida 33176
The Issue This is a case in which the Petitioner seeks to suspend and terminate the Respondent's employment on the basis of allegations of misconduct set forth in a Notice of Specific Charges. The allegations of misconduct charge the Respondent with immorality, misconduct in office, incompetency, and conviction of a crime involving moral turpitude.
Findings Of Fact At all times material to this proceeding, the Respondent, Wilfredo D. Rivera-Carde, was employed by the School Board of Dade County pursuant to a professional service contract as a JROTC Instructor assigned to Miami Jackson Senior High School. During the course of his employment as a JROTC Instructor, the Respondent's students in the JROTC program included the following: T. F., S. G., I. R., E. P., and B. V. Of these, all but B. V. were females. At all times material hereto, the JROTC Instructors had their offices in a large room that was divided by large cabinets and other furniture into two offices. The back office was the Respondent's office. The back office was accessible via a passage way from the larger office occupied by the other two JROTC Instructors. The passage way was formed by tall cabinets on both sides. During the 1992-93 school year, I. R., who was at that time a female student enrolled in the JROTC program, was one of the JROTC clerks. In her capacity as clerk she was required to perform clerical duties in the Respondent's office on a frequent basis. When I. R. was performing those clerical duties, often the only other person in the back office was the Respondent. At all times material hereto, the School Board's employee conduct rule was in effect at Miami Jackson Senior High School. The rule provides that teachers must maintain a proper relationship with all of their students and prohibits inappropriate touching of students by teachers. The employee conduct rule is incorporated in the teacher handbook, a copy of which is provided to each teacher each year. Moreover, it is the practice of the Principal at Miami Jackson Senior High School to review the employee conduct rule with all teachers during orientation at the beginning of each school year and at faculty meetings throughout the year. During the course of the Petitioner's investigation of this matter, the Petitioner provided the information it had gathered to police authorities. In March of 1993 the Respondent was arrested on criminal charges filed by female students, T. F. and I. R. The criminal charges against the Respondent have since been dismissed by the Office of the State Attorney. For the reasons mentioned in the Preliminary Statement, in the Endnotes, and in the Appendix, the evidence in this case is insufficient to prove any of the allegations of misconduct set forth in the Notice of Specific Charges.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that the Dade County School Board issue a Final Order in this case dismissing all charges against the Respondent. DONE AND ENTERED this 5th day of October, 1994, at Tallahassee, Leon County, Florida. MICHAEL M. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of October, 1994.
The Issue The issue is whether Petitioner is entitled to the relief requested in his Step Three salary grievance with Florida A&M University (FAMU).
Findings Of Fact In school year 2008-2009, Petitioner was a tenured professor at Stetson University College of Law (Stetson) in St. Petersburg. The FAMU College of Law, located in Orlando, was recruiting new faculty to improve its stature and academic standing. Besides Petitioner's academic stature as a tax and business law professor, the College of Law was then only provisionally accredited by the American Bar Association, and it sought an individual, such as Petitioner, who could help the College of Law achieve and retain full accreditation. Like other state universities, College of Law faculty members are either on a nine-month (academic calendar), ten- month, or 12-month (annual calendar) contract. A 12-month contract is justified when a faculty member has regular year- round teaching, research, and/or administrative duties. In late 2008, Petitioner was first contacted by the Dean of the College of Law, LeRoy Pernell, regarding a teaching position for the upcoming school year 2009-2010. By letter dated February 26, 2009, Dean Pernell informed Petitioner that he would recommend his appointment as a tenured, full professor under a nine-month contract at a salary of $177,000.00. See Pet'r Ex. 1. Had he returned to Stetson for the 2009-2010 academic year, Petitioner's base salary would have been $154,230.00, plus "benefit costs," including a summer teaching supplement and a tuition-matching program for his family, which totaled more than Dean Pernell's initial offer. See Pet'r Ex. 3. Accordingly, Petitioner rejected the offer and asked for a compensation package of around $200,000.00. Although Dean Pernell had no authority to establish a salary level, he agreed to recommend that Petitioner receive a salary of $180,000.00 for a nine-month faculty contract, rather than $177,000.00, and to "commit to providing a funded summer research grant to equal no less than $15,000 for summers 2010- 2012, assuming continuing availability of funding." See Pet'r Ex. 2. These proposed changes were handwritten on the initial offer letter previously tendered by Dean Pernell. Dean Pernell's offer letter required that Petitioner work 12 months -- nine months as a professor and three months in a research role. The new offer was memorialized by the Dean in a third version of the initial offer letter dated February 26, 2009. As the testimony at hearing confirmed, the final version of the letter simply incorporated Dean Pernell's handwritten changes found on the second version and reads in pertinent part as follows: This is to advise you that by a vote of the faculty and my full support, I am recommending that you be appointed to the faculty of the Florida A&M University College of Law as a professor. The formal letter of offer from the Senior Vice President and Provost of Florida A&M University is forthcoming. This recommendation is as a tenured Professor [of] Law. The recommendation is that this appointment be effective commencing with the 2009-2010 academic year and commencing with a salary of $180,000.00 for a 9 month contract. In addition, I will recommend that the College of Law commit to providing you a funded summer research grant equal to no less than $15,000.00 for the summers 2010-2012, assuming continued availability of funds. See also Jt. Ex. 9, p. 3. The authority to make formal employment and salary offers to faculty members lies with the Provost and Vice President for Academic Affairs, who at that time was Dr. Cynthia Hughes-Harris. See FAMU Reg. 1.021; Jt. Ex. 2. She was not required to accept the recommendation of Dean Pernell and could make an offer that fit within FAMU's administrative and budget considerations. Dean Pernell made this clear during his negotiations with Petitioner. On April 20, 2009, Provost Hughes-Harris informed Petitioner by letter that FAMU was offering him a full-time position with the College of Law. The letter stated in part as follows: I am pleased to offer you a 12 month, full- time position as a full Professor and also, Associate Dean for Research & Faculty Development in the College of Law. Your position as professor is with tenure, subject to the approval of the Board of Trustees. The Board of Trustees will meet regarding this matter no later than June 2009. The annual salary of $180,000 with a $20,000 stipend for administrative responsibilities will be paid on a bi-weekly rate of $7,662.83. The appointment period is for the fiscal year, which will begin on July 1, 2009 and end on June 30, 2010. Jt. Ex. 1. While Provost Hughes-Harris' offer essentially matched the compensation recommended by Dean Pernell, the terms of the offer deviated in two material respects. First, rather than a nine-month faculty contract, Petitioner was offered a 12-month faculty contract. Second, rather than a "summer research grant" to supplement his salary, he was offered a 12-month position as Associate Dean for Research & Faculty Development, which required that he perform administrative duties on a year-round basis. Because of administrative duties, his teaching responsibilities were limited to a "maximum of two courses per academic year while Associate Dean." Id. The bottom line here is that Petitioner was offered the same compensation recommended by Dean Pernell, but he now had year-round administrative duties. Petitioner voluntarily accepted the offer on April 28, 2009. See Jt. Ex. 1, p. 2. At hearing, Provost Hughes-Harris denied ever receiving a copy of any offer letter by Dean Pernell, except the initial offer letter of $177,000.00. However, Provost Hughes- Harris did not make employment and salary offers without conferring with the recommending dean, and she acknowledged that there "was certainly conversation" with Dean Pernell before the offer letter was tendered. While she could not recall any details regarding that conversation, she recalled that her offer letter was for a 12-month faculty contract, and there was no way to "blend" a nine-month teaching contract with a 12-month administrator contract. This is because a nine-month position and a 12-month position require separate contracts and cannot be combined. Each employment contract signed by Petitioner included the following conditions: This Employment Contract between Florida A&M University Board of Trustees (FAMU) and the Employee is subject to the Constitution and laws of the State of Florida as constitutionally permissible, and the regulations, policies and procedures of [the] U.S. and the Florida Board of Governors and FAMU as now existing or hereafter promulgated. * * * This Employment Contract supersedes any and all prior agreements, contracts, understandings, and communications between the Employee and FAMU, whether written or oral, expressed or implied, relating to the subject matter of this Employment Contract and is intended as a complete and final expression of the terms of the Employment Contract between FAMU and the Employee and shall not be changed or subject to change orally. Jt. Ex. 1, 4, 5, 6, and 7. Petitioner commenced employment with the College of Law in July 2009 and continued working as Associate Dean and a full Professor until the summer of 2015. During that period of time, he taught at least one class in the fall and spring semesters and performed administrative duties as Associate Dean on a year-round basis. By then, regular pay adjustments had increased his base salary for fiscal year July 1, 2015, through June 30, 2016, to $189,304.30, plus a supplement of $20,000.00 as Associate Dean. See Jt. Ex. 6. When Dean Pernell stepped down as Dean in the summer of 2015, by letter dated June 15, 2015, the new Provost and Vice President for Academic Affairs, Marcella David, appointed Petitioner Interim Dean while a search for a new Dean was undertaken. Besides the base salary and supplement he already received as Associate Dean, Petitioner was given an additional supplement of $10,000.00 for serving as Interim Dean, for a total supplement of $30,000.00. See Jt. Ex. 8. On June 26, 2015, Petitioner voluntarily signed the offer letter confirming his acceptance. Id. Provost David's letter informed Petitioner that "upon cessation of [his] appointment as Interim Dean of the College of Law and return to the position of Associate Dean," his salary would "be adjusted consistent with applicable FAMU Board of Trustee Regulations and Policies." Id. This obviously meant that once a new Dean was hired, and he reassumed the position of Associate Dean, he would no longer receive the extra $10,000.00 supplement. For the first time, the letter specifically advised Petitioner to be aware of Regulation 10.102 and Policy 2005-15. Id. Prior to that time, no reference to specific regulations or policies was made. However, each employment contract placed him on notice that all FAMU policies and regulations applied to employment contracts.1/ Regulation 10.102 and Policy 2005-15 govern pay actions when faculty members serving in an administrative position return to a faculty only position. This meant that if Petitioner resumed full-time teaching with no administrative duties, he would be subject to the terms of those provisions. Before signing the June 15, 2015, offer letter, Petitioner did not ask how the Regulation and Policy would affect his base salary if he returned to a full-time faculty position since more than likely he assumed he would again serve as Associate Dean and a tenured professor. Subsections (11) and (12) of Regulation 10.102 read as follows: When the assignment of Faculty serving in an administrative position such as Vice President, Dean, Director, or Department Chair is changed, the pay and appointment period shall be adjusted to reflect the new responsibilities. Pay adjustments shall be completed in accordance with the Board of Trustees Policy 2005-15 (Separation and Return of Senior Administrative and Academic Officers to Faculty), as now or hereafter amended. An employee's base salary shall be adjusted 81.8 percent when changing from a twelve-month appointment to a nine-month appointment. An employee's base salary shall be adjusted by 122.2 percent when changing from a nine-month appointment to a twelve-month appointment. Jt. Ex. 10, p. 2. Section IV., Policy 2005-15, "Salary upon Change in Assignment to a Faculty Position," describes three ways in which to calculate an employee's salary after being reassigned from an administrative to faculty position. It reads as follows: New Hire as Administrator If the employee was hired upon initial appointment as an administrator, his or her new salary will be the median salary of the employees within the same professorial rank and discipline. Tenured Faculty Prior to Becoming an Administrator. If the employee was previously a tenured faculty member prior to becoming an administrator, his or her new salary will be the salary held by the employee immediately prior to the time of the administrative appointment and any increases received by the faculty during the time of service as an administrator. These separate compensations will be noted in the appointment letter. Other Consideration Notwithstanding the provisions of IV.A. and IV.B., any agreed upon salary arrangement negotiated by the President or President's designee upon appointment as an administrator shall also be considered. Jt. Ex. 3, p. 2. On January 4, 2016, A. Felecia Epps was selected as the new Dean of the College of Law, with a start date of January 4, 2016. After assuming the position, Dean Epps restructured the College of Law leadership and its personnel. A determination was made that Petitioner would not continue in his role as Associate Dean and he would return to a full-time position as instructional faculty. Because Petitioner no longer had the position and responsibilities as Associate Dean, and would work only nine months each year as a professor, he was tendered a new contract on March 3, 2016, which adjusted his base salary downward from $189,304.00 to $148,306.00. See Jt. Ex. 5. This calculation was consistent with Regulation 10.102(12). The term of employment was from August 1, 2016, through May 5, 2017, with no special supplements or conditions. The new salary represented compensation based on a nine-month contract as a professor rather than a 12-month contract with dual duties. According to Provost David, who tendered the offer, this salary adjustment was in accord with section IV.A., Policy 2005-15, which governs salary changes for employees who are reassigned from an administrative position to a faculty position and were hired upon initial appointment as an administrator. She explained that Petitioner was initially hired by the College of Law as Associate Dean, and upon cessation of that appointment, section IV.A. provides that the employee's new salary "be the median salary of the employees within the same professorial rank and discipline." She further explained that the provision assumes the person being appointed as a new administrator is a faculty member, as it would not otherwise refer to the employee as having a professorial rank. This interpretation of the Policy is a reasonable one and not clearly erroneous. On March 7, 2016, Petitioner filed a grievance arguing that he was entitled to the same compensation ($180,000.00) agreed upon when he was initially hired as a professor in 2009, plus annual accruals. On March 18, 2016, Petitioner signed the contract under protest and subject to his grievance. See Jt. Ex. 5. The current median salary of faculty members in the College of Law is $148,306.00, which is the same as the adjusted salary first offered Petitioner in March 2016. Petitioner points out, however, that at least three current College of Law faculty members of similar experience and expertise, hired just before or after he was hired in 2009, were given nine-month employment contracts with a base salary of around $180,000.00. Ten days before the final hearing, Provost David tendered Petitioner another employment contract that increased his annual base salary from $148,306.00 to $154,850.92. See Jt. Ex. 4. The rationale for this increase was first outlined in Provost David's memorandum dated May 13, 2016, which denied Petitioner's Step Two grievance. See Jt. Ex. 9, p. 6. As further explained by Provost David at hearing, by "generously" interpreting section IV.C., Petitioner's appointment as Interim Dean could be treated "as a new appointment as an administrator with a base salary identified there on a 12-month basis of $189,000 and change, which allowed me to add approximately $6,000 to the median salary that was calculated under Paragraph A." Faculty members with a 12-month contract accrue both vacation and sick leave. A nine-month faculty member does not. Petitioner is aware of this distinction. After this dispute arose, Petitioner requested a pay-out of his unused accrued vacation leave and was given $31,912.32.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Florida A&M University enter a final order denying Petitioner's Step Three grievance. DONE AND ENTERED this 3rd day of November, 2016, in Tallahassee, Leon County, Florida. S R. ALEXANDER 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 3rd day of November, 2016.
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, I hereby make the following findings of fact: During the 1984-85 and 1985-86 academic years, Respondent attended Highland Oaks Junior High School. During the 1985-86 academic year, Respondent was absent thirty-six (36) times, tardy thirty (30) times, and under suspension for twenty-eight (28) days. The Respondent did not receive a final grade for the 1985-86 academic year because he was transferred to Jan Mann Opportunity School on May 29, 1986. The last grading period for which Respondent received grades for the 1985-86 academic year was the third grading period which covered February 3, 1986 through March 27, 1986. For that grading period, the Respondent received five "F's" and one "D" for academic performance. When a teacher or other staff member at Highland Oaks Junior High School has difficulty with a student's behavior, the teacher may submit a report of the incident to the front office, The reports are called Student Case Management Referral Forms and are reserved for serious behavior problems. During the 1985-86 academic year, nine Student Case Management Referral Forms were written regarding Respondent's behavior. On December 2, 1985, a Student Case Management Referral Form was written because Respondent was rude and disruptive in class and did not serve detention as requested. On December 10, 1985, a Student Case Management Referral Form was written because Respondent was disruptive in class and was so out of control that while swinging his arms, he struck one of his teachers in the mouth (apparently unintentional). The Respondent was suspended for five days. On January 9, 1986, a Student Case Management Referral Form was written because the Respondent used provocative language to one of his teachers. On February 7, 1986, a Student Case Management Referral Form was written because Respondent repeatedly talked back and was very disrespectful and defiant to one of his teachers. The Respondent was suspended for three days. On March 7, 1986, a Student Case Management Referral Form was written because Respondent cut class and was returned to the school by police. On April 21, 1986, a Student Case Management Referral Form was written because Respondent was found in the hallway cutting class by administrators at approximately 9:00 a.m. The Assistant Principal told the Respondent to report to the office. The Respondent did not report to the office as requested, and at 3:00 p.m., a second Student Case Management Referral Form was written on April 21, 1986, because of Respondent's failure to obey the Assistant Principal's directives to report to the office. On May 5, 1986, a Student Case Management Referral Form was written because Respondent used profanity in class. The Respondent was suspended for five days. On May 12, 1986, a Student Case Management Referral Form was written because Respondent cut class and was with a group of boys who set off a fire alarm. The Respondent was suspended for five days. Ms. Van Dam is the building substitute teacher at Highland Oaks Junior High School and substituted in many classes where the Respondent was present. The Respondent was very defiant and resisted authority in all Ms. Van Dam's classes. The Respondent failed to obey simple requests and stated that he did not have to do certain things and that no one could force him to do certain things. On one occasion, Ms. Van Dam asked the Respondent to change seats. The Respondent replied, "F--- you, I will not change seats". During one class period, the Respondent went under an art table and refused to come out. Respondent's conduct consistently caused Ms. Van Dam to interrupt her normal classroom lessons. Ms. Emma Garcia-Mendoza is an art teacher at Highland Oaks Junior High School and had Respondent as a student during the 1984-85 and 1985-86 academic years. In all classes, the Respondent was disruptive and defiant. On one occasion, the Respondent was out of his seat, and Ms. Garcia-Mendoza told the Respondent to sit down two or three times. Respondent refused to sit down and walked out of class without permission. During class, Respondent had a habit of blurting comments out, not directed to anyone in particular. On one occasion, the Respondent returned to class after a suspension and was annoying a female student in the back of the room. Ms. Garcia-Mendoza told the Respondent not to bother the other student and told Respondent to move. The Respondent shouted to Ms. Garcia-Mendoza, "F--- you, you f---ing b----, I hate you", and walked out of the door. On another occasion, Respondent got into an altercation with another student, and when Ms. Garcia-Mendoza attempted to break-up the altercation, the Respondent pulled his fist back as if to strike Ms. Garcia- Mendoza, but stopped. The Respondent's conduct consistently caused Ms. Garcia- Mendoza to interrupt her regular classroom instruction and routine. Mr. Arnold Golditch teaches manufacturing or "shop" at Highland Oaks Junior High School. Golditch had Respondent as a student for the 1984-85 academic year and part of the 1985-86 academic year. The Respondent had a habit of blurting out comments in class and getting up and walking around during the lesson. The Respondent was consistently defiant during the 1985-86 academic year. Mr. Golditch was required to move the Respondent's seat on several occasions. The Respondent's conduct consistently required Mr. Golditch to interrupt his prepared classroom lesson. Ms. Margaret Stanley is a guidance counselor at Highland Oaks Junior High School. During the 1984-85 academic year, each of Respondent's teachers complained to Ms. Stanley about Respondent's disruptive behavior and work performance. Particularly, the teachers complained that the Respondent would talk out in class. During the 1984-85 and 1985-86 academic years, Ms. Stanley held many conferences with the Respondent and his mother. The conferences did not result in any changed behavior on the Respondent's part. Mr. Fontana, the assistant principal at Highland Oaks Junior High School, held a conference with Respondent's mother during the 1985-86 academic year but her reaction was mainly one of hostility. For the 1984-85 academic year, the Respondent received three "F's", one "C" and one "Incomplete" as final academic grades.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that Petitioner enter a Final Order affirming the assignment of Respondent to Jan Mann Opportunity School-North. DONE and ORDERED this 21st day of September, 1986 in Tallahassee, Florida. W. MATTHEW STEVENSON 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 21st day of September, 1986. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-2398 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case: Rulings on Proposed Findings of Fact Submitted by the Petitioner Adopted in Findings of Fact 1, 2 and 3. Adopted in Finding of Fact 13. Adopted in Finding of Fact 12. Adopted in Findings of Fact 8 and 10. Adopted in Finding of Fact 11. Adopted in Findings of Fact IS, 16 and 17. COPIES FURNISHED: Madelyn P. Schere, Esquire Assistant Board Attorney Dade County Public Schools 1450 N.E. Second Avenue Miami, Florida 33132 James C. Bovell, Esquire 1401 Ponce de Leon Blvd. Coral Gables, Florida 33134 Ms. Eldie Samuels 2529 N.E. 191st Street, Apt. 4 North Miami Beach, Florida 33100 Dr. Leonard Britton, Superintendent Dade County Public Schools Board Administration Building 1450 Northeast Second Avenue Miami, Florida 33132 Judith Brechner, Esquire General Counsel Department of Education Knott Building Tallahassee, Florida 32301 Honorable Ralph D. Turlington Commissioner of Education The Capitol Tallahassee, Florida 32301
Findings Of Fact On February 6 & 7, 1993, Petitioner, Alecia J. Miller, was the President of the student body of the University of South Florida. Petitioner, B. Mitchell Crandall, was serving as student Attorney general, a student government office. Both incumbents received financial remuneration for their services. The University of South Florida, (USF), is an institution of higher education, located in Tampa, and a part of the Florida State University System. Its President, Francis T. Borkowski, is the chief administrative officer of the university and responsible for its overall operation and administration. He is delegated statutory authority and may, within that authority, exercise such functions and take such actions as are necessary to achieve educational and other goals of the institution. The student government at USF is an integral part of the University and is subject to the direction and control of the university President and other supervisors responsible for the administration of the university's function. On February 6, 1993, Barbara J. Sherman, Interim Vice President for Student Affairs at USF, in a letter to President Borkowski, communicated her concern over the "situation involving student government leaders and the Student Coalition." She noted the continuing efforts by her and her staff to facilitate a compromise of their differences by which the parties to the dispute could be brought together for solution and the lack of success those efforts had met with. She also noted that many of the concerns of the Student Coalition appeared valid and, noting the inability of the parties to agree upon any resolution of the problem, concluded that its continuing existence was contributing to an erosion of the academic climate for a substantial number of students involved on both sides of the issues. Vice President Sherman also concluded that administration intervention was necessary to restore an orderly environment which would be conducive to the educational business of the institution. To facilitate that end, Sherman recommended certain actions be taken by Borkowski which included the deactivation of certain functions of the executive branch of student government. On February 7, 1993, these recommendations were approved in total for immediate implementation by President Borkowski. As a result of that decision, the office of Student Body President and Vice President were immediately deactivated and the incumbents, including Petitioner Miller, were directed to vacate the student government offices. Borkowski's actions also included a scheduled termination of the appointment of cabinet officers, one of whom was the other Petitioner, Mr. Crandall. As a result of this action, Petitioners claim a significant decrease in the amount of monetary compensation they receive as student officers. Pursuant to the Constitution of the Student Body of the University of South Florida, the executive and legislative powers of the student body are vested in student officers including a president and student senators elected by a majority vote of the student body. The executive officer of the association, the Student Body President, has specific responsibilities which include the selection of student members of the University's activity and service, health, and athletic fee committees who act on the setting of student fees. Among other functions of the Student Body President are participation in the selection of student representatives to serve on various Board of Regents committees, and the selection of student representation in public employee bargaining negotiations involving the University. The student senate has limited authority over the allocation and expenditure of the student activity and service fund, subject to the veto of the University President. The student government association as a whole has been granted specific statutory rights and responsibilities which include the mandatory consultation of the University President with the association on proposed projects using capital improvement trust fund fees and other functions as well. Taken together, it is clear that the student government association serves as a representative body to negotiate with the University President on many issues. Sherman's letter to Borkowski also recommended the establishment of a commission on student governance " to be comprised of students with diverse interests and concerns along with appropriate faculty and administrative representatives." The proposed charge to this commission indicated a major consideration would be to "respond to the serious accountability issues identified through the several comprehensive university audits of student government operations. "
The Issue Whether Respondent, Uceda School of Orlando, Inc. (Uceda Orlando), discriminated against Petitioner, Matalyn Johnson (Ms. Johnson), based on her race and disability when it failed to hire her. The specific issue to be determined is whether Uceda Orlando was an “employer” under the Florida Civil Rights Act of 1992, chapter 760, Florida Statutes (2020) (FCRA).1
Findings Of Fact Ms. Johnson is an African-American female who has a speech impediment caused by a stroke and/or cancer. She applied for an ESL teaching position at a school located on Kirkman Road in Orlando, Florida.3 Uceda Orlando operates a school located at 5425 South Semoran Boulevard in Orlando, Florida. Uceda Orlando was incorporated in 2003. Juan Uceda (Mr. Uceda) is the registered agent and at all relevant times was the president and director of Uceda Orlando. Uceda OBT operates at least two schools located in Orlando, Florida: (1) at 12934 Deertrace Avenue, Suite B; and (2) at 4586 South Kirkman Road (Uceda Kirkman). Uceda OBT was incorporated in 2010. Charo Uceda (Ms. Uceda) is the registered agent and president of Uceda OBT. ESL TEACHER POSITION Angel Rodriguez was a teacher who worked at Uceda Kirkman from April 2019 to February 2020. For the time relevant to these proceedings, Mr. Rodriguez was supervised by Ricardo Sanchez. According to Mr. Sanchez's W-2 forms, he was paid by "Uceda School of Orlando – OBT, Inc." Mr. Sanchez, who interviewed Ms. Johnson and made the decision not to hire her, was employed by Uceda OBT. In November 2019, Mr. Rodriguez submitted his resignation letter to Uceda Kirkman.4 Mr. Sanchez asked Mr. Rodriguez if he knew of anyone who could teach ESL in his place. Mr. Rodriguez suggested Ms. Johnson for the position. 3 "ESL" stands for "English as a second language." 4 Mr. Rodriguez continued to work as a substitute teacher at Uceda Kirkman after he resigned. Mr. Rodriguez worked with Ms. Johnson at an Orange County public middle school. He told Ms. Johnson about the ESL position he was vacating at Uceda Kirkman and encouraged her to apply. Ms. Johnson applied for the ESL position. Based on the overwhelming evidence at the hearing, it is clear that Ms. Johnson applied for Mr. Rodriguez's vacant position with Uceda Kirkman (operated by Uceda OBT) and not for a position with a school operated by Uceda Orlando. Ms. Johnson is a public middle school teacher in Orange County. She has a bachelor's degree in English with a minor in Spanish. She is certified to teach ESL classes to students in sixth through twelfth grades. Although Ms. Johnson's application was not entered into evidence, her unrebutted testimony and the testimony from Mr. Rodriguez established that she was qualified for the ESL position. Ms. Johnson interviewed for the position with Mr. Sanchez. She later heard from Mr. Sanchez that she did not get the position. On January 13, 2020, Ms. Johnson received an official notification that she had not been selected for the ESL position. The email was from "Uceda School of Orlando-Kirkman," and stated in relevant part: Subject: Application for ESL Teacher at Uceda School of Orlando-Kirkman Thank you for applying to the ESL Teacher position at Uceda School of Orlando-Kirkman. Unfortunately, Uceda School of Orlando-Kirkman has moved to the next step in their hiring process, and your application was not selected at this time. INTERRELATION OF INDIVIDUAL UCEDA SCHOOLS Mr. Uceda is the father of Ms. Uceda and Doris Uceda. Together the three co-founded the Uceda English Institute (UEI) in the 1980s, which is a chain of federally-accredited ESL schools. There are numerous locations or branches of UEI in Florida, Nevada, New Jersey, and New York. Each UEI school is separately owned and incorporated, and each is overseen by different administrators. The schools that were discussed at the hearing were owned by Mr. Uceda's family members, including his daughters and grandchildren. Ms. Uceda testified that she currently owns and operates Uceda OBT, which has two campuses: the Deertrace campus and Uceda Kirkman. Ms. Uceda also either has a financial interest or is on the board of UEI schools located in Boca Raton, Florida; Westin, Florida; and Elizabeth, New Jersey. Ms. Uceda has 100% ownership interest in Uceda OBT and is the only officer of Uceda OBT. She does not have any ownership interest nor does she serve in any capacity with Uceda Orlando. Mr. Uceda has no ownership interest in and does not serve in any capacity with Uceda OBT. Although Mr. Rodriguez believed that all "Uceda schools" were owned "by the same people," there was no evidence of this at the hearing. When asked what entity paid his salary, Mr. Rodriguez did not know. He testified that he thought all "Uceda schools" shared employees and students. However, he could not provide any examples and admitted that he only worked at Uceda Kirkman. Ms. Uceda convincingly testified that employees who work at one Uceda school can apply to work at another Uceda school, but they are paid separately and not allowed to just move back and forth. She also explained that Uceda OBT and Uceda Orlando have separate accounting records, bank accounts, lines of credit, payroll preparation, telephones, and offices. They do not share employees or administrators. According to the corporate documents introduced at the hearing, Uceda OBT and Uceda Orlando have different operating addresses, different registered agents, and different officers and directors. Although Ms. Uceda was listed as an officer of Uceda Orlando in the past, she has not served in any capacity at Uceda Orlando since 2013.
Conclusions For Petitioner: Ka'Juel Washington, Esquire The Washington Trial Group, PLLC 37 North Orange Avenue, Suite 500 Orlando, Florida 32801 For Respondent: Chris Kleppin, Esquire The Kleppin Law Firm 8751 West Broward Boulevard, Suite 105 Plantation, Florida 33324
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order dismissing the Petition for Relief filed by Matalyn Johnson against Uceda School of Orlando, Inc. DONE AND ENTERED this 2nd day of September, 2021, in Tallahassee, Leon County, Florida. COPIES FURNISHED: S HETAL DESAI Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of September, 2021. Tammy S. Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 Ka'Juel Washington, Esquire The Washington Trial Group, PLLC 37 North Orange Avenue, Suite 500 Orlando, Florida 32801 Chris Kleppin, Esquire The Kleppin Law Firm 8751 West Broward Boulevard, Suite 105 Plantation, Florida 33324 Stanley Gorsica, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020
The Issue The issue for determination is whether Respondent committed the offenses set forth in the Administrative Complaint and, if so, what action should be taken.
Findings Of Fact At all times material hereto, Eric R. Hartman has been licensed by the State of Florida as a real estate salesperson, having been issued license number 0455304. Mr. Hartman was originally licensed on August 12, 1985. The last status of Mr. Hartman's license was involuntarily inactive. On or about June 26, 1995, Mr. Hartman forwarded his real estate salesperson license renewal notice to the Department of Business and Professional Regulation, Division of Real Estate (Division of Real Estate). His license had expired on March 31, 1995. Mr. Hartman submitted the license renewal notice to the Division of Real Estate for the purpose of renewing his real estate salesperson license. On the license renewal notice, Mr. Hartman signed an affirmation that he had completed all of the requirements for renewal of his license. As a prerequisite for the renewal of his license, Mr. Hartman was required to successfully complete a minimum of 14 hours of real estate continuing education. At all times material hereto, Mr. Hartman knew of this requirement. Prior to submitting his signed license renewal notice, in order to comply with the required continuing education, Mr. Hartman had obtained a correspondence course for 14 hours of continuing education from the Bert Rodgers Schools of Real Estate, Incorporated (Bert Rodgers). The correspondence course included a course book and test booklet. At the end of each chapter in the course book was a progressive quiz, and the answers for the quiz were provided at the end of the course book. Mr. Hartman took the progressive quiz after completing each chapter and, for the total book, had only two incorrect answers. The test for the continuing education course was open book. After completing the test, Mr. Hartman forwarded the test booklet to Bert Rodgers for grading. Based upon his performance on the progressive quiz after each chapter, there was no reason for Mr. Hartman to believe that he had not passed the test and, therefore, successfully completed the course. Confident that he had passed the continuing education course, Mr. Hartman submitted his license renewal notice to the Division of Real Estate. At all times material hereto, Mr. Hartman knew that he was required to maintain and submit to the Division of Real Estate, upon request, a course report certificate for the continuing education. The certificate indicates that he had timely and successfully completed the continuing education course. At the time that Mr. Hartman submitted his signed license renewal notice, he had not received a course report certificate from Bert Rodgers. On July 10, 1995, relying upon Mr. Hartman's representation that he had successfully completed the requirements for renewal of his license, the Division of Real Estate renewed Mr. Hartman's license and issued him a real estate salesperson license. His license had an effective date of June 23, 1995, and an expiration date of March 31, 1997. Subsequently, Mr. Hartman received notification from Bert Rodgers that the course material, including the test booklet, had expired and was no longer valid. Simultaneously, Bert Rodgers provided Mr. Hartman with a new and valid course book and test booklet. He completed the new test booklet and forwarded it to Bert Rodgers for grading. At the time that Mr. Hartman signed his license renewal notice and forwarded it to the Division of Real Estate, he had no intent to deceive or mislead or to make a material misrepresentation for the purpose of inducing the Division of Real Estate to renew his license. On his own initiative, by letter dated August 28, 1995, Mr. Hartman notified the Division of Real Estate of the situation regarding the Bert Rodgers continuing education course. After having forwarded the new and valid test booklet to Bert Rodgers, Mr. Hartman, subsequently, received a course report certificate from Bert Rodgers. The certificate indicated, among other things, that Mr. Hartman had taken a 14-hour continuing education correspondence course, which was completed on August 25, 1995, and that he had received a grade of 93.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Division of Real Estate enter a final order imposing a $1,000.00 administrative fine against Eric R. Hartman. DONE AND ENTERED this 28th day of August, 1997, in Tallahassee, Leon County, Florida. ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 28th day of August, 1997.
The Issue Whether Petitioner, Marion County School Board (“Petitioner” or “Board”), had just cause to discipline Respondent for misconduct as alleged in the Administrative Complaint (“Complaint”) dated March 10, 2020.
Findings Of Fact Petitioner is the constitutional entity authorized to operate, control, and supervise the public schools within Marion County. See Art. IX, § 4(b), Fla. Const.; § 1001.32(2), Fla. Stat. Petitioner is authorized to discipline instructional staff and other school employees. See § 1012.22(1)(f), Fla. Stat. At the time of the alleged incident, Respondent was employed as a testing coordinator at Dunnellon Middle, pursuant to a professional services contract with the Board. During the 2018-2019 school year, Respondent served as a dean of discipline at Dunnellon Middle. As dean, she had dealt with discipline of students possessing drugs on campus, as well as students suspected of smoking marijuana either on a school bus or at the school bus stop. Leah Grace is a guidance counselor at Dunnellon Middle. Michelle Reese is the guidance office clerk. On January 30, 2020, student L.L. came to the guidance office and told Ms. Reese he wanted to speak with Ms. Grace about enrollment in a magnet program for the following school year. However, when L.L. entered Ms. Grace’s office, he sat down and began crying. L.L. confided in Ms. Grace that he “had something he was not supposed to have at school.” L.L. stated that he did not know who to trust. L.L. was distraught and Ms. Grace was unable to calm him. She decided to contact his mother to pick him up from school. Aware that L.L.’s mother does not speak English, Ms. Grace sought help from someone at the school who spoke Spanish. Respondent speaks Spanish. Ms. Grace contacted Respondent and asked her to come to the guidance office to help her with a student. When Respondent arrived at Ms. Grace’s office, she observed L.L. visibly upset, sobbing with his face in his hands, rocking back and forth. Ms. Grace relayed to Respondent what L.L. had shared with her—that he “had something he was not supposed to have at school.” Respondent recognized L.L. and asked him three questions in quick succession: Do you have a weapon? L.L. shook his head “no” in response; Do you plan to hurt yourself or someone else? L.L. shook his head “no” in response; and Do you have weed? L.L. nodded his head in response to the third question, indicating that he did have marijuana. L.L. confided that another student, D.G., had given the marijuana to L.L. in the cafeteria that morning to “hold on to” for him. L.L. had grown anxious during the school day about having the drugs in his possession and had come to the guidance office for help. When L.L. nodded in the affirmative that he had weed on him, Respondent stated something to the effect of “that is no reason to go home.” Respondent suggested L.L. just flush the marijuana down the toilet. L.L. promptly went into a small restroom attached to Ms. Grace’s office, flushed the toilet, washed his face, and began to compose himself. Afterward, Respondent told L.L. he needed to find better friends. As Respondent was no longer needed for translation, she left the guidance office and returned to her duties in the testing lab. Ms. Grace allowed L.L. to go to his next class, a grade-recovery course for which he was already late. Julia Roof teaches the class and had been concerned that L.L. was not in class on time. L.L. arrived at the classroom toward the end of the class period, and Ms. Roof observed that L.L. was upset. L.L. initially insisted that he was “fine,” but Ms. Roof pressed him because he was visibly upset. L.L. confided in Ms. Roof about the incident. He admitted that he had marijuana in his possession at school that day, that another student had asked him to hold it, and that he had been to the guidance office where the marijuana had been “flushed.” Neither Ms. Grace nor Respondent reported the incident to the school resource officer or anyone in school administration. Nor did either of them notify L.L.’s mother. Ms. Roof reported the incident to Delbert Smallridge, principal at Dunnellon Middle, at the end of the school day. Principal Smallridge’s Investigation Mr. Smallridge has served as principal at Dunnellon Middle for nine years, and has worked in the Marion County school system in various positions for 31 years. Ms. Roof reported the incident to Mr. Smallridge after school at car pickup. Before he left the school for the day, Mr. Smallridge contacted the school resource officer to notify him that there was a situation with drugs on the school campus that day. He also notified Brent Carson, director of professional practices (i.e., human resources) for the Marion County School District (“the District”), with the limited information he had obtained. The following morning, Friday, January 31, 2020, Mr. Smallridge began an internal investigation into the incident. He first interviewed L.L., in the presence of Ms. Roof; took notes of the events L.L. related; reviewed the notes verbally with L.L.; as well as having L.L. read them to himself. Afterward, he asked L.L. to sign his name at the bottom of the page as his statement of the incident. The next person he interviewed, Ms. Reese, came to him directly. She reported to Mr. Smallridge that she had information she felt he should know. She told Mr. Smallridge that Ms. Grace had confided in her that morning that she had allowed a student to flush marijuana in plastic bags down the toilet in her office the prior day, and that she was concerned that they may come back up or otherwise cause a plumbing problem. Ms. Reese provided and signed a written statement to that effect. Mr. Smallridge also interviewed, and took a written statement from, Ms. Roof regarding the incident. Before the school day ended, he also spoke to Mr. Carson, who instructed him to complete the school-level investigation by interviewing and getting written statements from Respondent and all witnesses, and do his best to determine what had happened. Mr. Smallridge interviewed Ms. Grace the following Monday, February 3, 2020, in the presence of his confidential secretary. Mr. Smallridge took notes of his interview with Ms. Grace, and Ms. Grace provided a written statement of her own. During his interview with Ms. Grace, Mr. Smallridge noted that “both [Ms. Grace and Respondent] were aware [L.L.] had drugs.” In Ms. Grace’s written statement, she stated that she “couldn’t remember” whether it was she or Respondent who told L.L. to flush the marijuana, “but I think it was me.” She stated that L.L. went to the small bathroom attached to her office, “then came out and told me he flushed it, bag and all.” Ms. Grace’s statement also confirmed that both she and Respondent were in her office when L.L. went to the bathroom. Ms. Grace later resigned from Dunnellon Middle. On August 26, 2020, after her resignation, she gave a second written statement regarding the incident. In that statement, Ms. Grace claimed responsibility for telling L.L. to flush the marijuana and called it a “momentary lapse in judgement.” She felt sorry for L.L. and did not want him to get in trouble, either with the school or with law enforcement. Mr. Smallridge also interviewed Respondent, who stated that, when L.L. nodded his head in response to her question, “Do you have weed,” she understood L.L. to mean that he had marijuana in his system, not on his person. Further, she claimed to have left Ms. Grace’s office shortly after she asked those questions and was not aware that L.L. had drugs on his person or that he flushed drugs in Ms. Grace’s office. Respondent also gave Mr. Smallridge a written statement. In her written statement, Respondent described the events of January 31, 2020. She said that when she first observed L.L. in Ms. Grace’s office, “The kid seemed sick, rocking, sobbing and not speaking.” She continued, “I thought he might be intoxicated as to why he would want to go home and not to the nurse. I asked him if he had weed as if in smoked it, had it in his system. He nodded and continued to cry. I said, that is no reason to go home.” Mr. Smallridge gathered all the statements and notes from his investigation, scanned and sent them to Mr. Carson. Jaycee Oliver is the executive director of employee relations for the District and is responsible for disciplinary issues with District employees, including hearings, grievances, mediations, and arbitrations. Ms. Oliver reviewed the documents from Mr. Smallridge, and discussed the incident with Mr. Carson and Mr. Smallridge. Ms. Oliver determined that the incident warranted a District-level investigation. District Investigation and Discipline The District investigation was conducted by Dawana Gary, director of equities and ethics, who worked with Tyson Collins, an investigator in her department. Ms. Gary was present for the interviews of both Ms. Grace and Respondent. Mr. Collins interviewed the remaining witnesses. Their interviews were recorded. Following the investigation, Ms. Gary prepared an investigative report containing written findings and conclusions. Based on the investigation, Ms. Gary concluded that both Respondent and Ms. Grace violated Florida Administrative Code Rule 6A-10.081(2)(a)1., which provides that the educator’s obligation to the student requires that the educator “[s]hall make reasonable effort to protect the student from conditions harmful to learning and/or to the student’s mental and/or physical health and/or safety.” She also concluded that both Respondent and Ms. Grace violated School Board Policy 6.27 I., which requires school board employees to comply with rule 6A-10.081. Ms. Gary sent her investigative report to Ms. Oliver, along with a recommendation that both Ms. Grace and Respondent receive a written reprimand, three-day suspension without pay, and mandatory training. Ms. Oliver reviewed the report and recommendation, and was surprised the recommendation was so lenient. Ms. Oliver characterized the violations as “egregious” and recommended to the superintendent that both Respondent and Ms. Grace be terminated. At the final hearing, Ms. Oliver testified that Respondent’s behavior was egregious because, not only did she fail to report the incident or take other measures to protect L.L., but also that allowing the student to dispose of the drugs prevented a proper investigation into distribution of drugs on campus. She maintained that Respondent’s behavior allowed both D.G., who was allegedly selling drugs on campus, and students who may purchase or otherwise obtain drugs from him, to remain in harm’s way. Without the drugs themselves as evidence, any potential investigation was jeopardized. Ms. Oliver discussed the recommendations for discipline at length with the superintendent. The superintendent made the final decision to impose a written reprimand and a five-day suspension, and require Respondent to take a course on “Reasonable Suspicion Drug Training” upon her return to work. L.L.’s statement that Respondent told him to flush the drugs is the only credible evidence on which to base a finding that Respondent did in fact do so.1 Respondent attempted to discredit L.L.’s testimony by introducing evidence (all of which was hearsay) that L.L. had previously been untruthful to teachers and had a penchant for drama. This evidence was neither credible nor reliable. L.L.’s testimony was clear: he acknowledged he had “weed;” he showed Respondent and Ms. Grace the weed; Respondent instructed him to 1 L.L.’s statement is an exception to the hearsay rule as an admission of a party opponent. See § 90.803(18), Fla. Stat. flush the weed; and he flushed the weed down the toilet in Ms. Grace’s private restroom. Ms. Grace’s testimony that she was the one who instructed L.L. to flush the marijuana is also not accepted as credible. Ms. Grace’s original statement to Mr. Smallridge (repeated in her first written statement) that she could not remember whether it was she or Respondent who told L.L. to flush the marijuana, was simply not credible. A middle school guidance counselor in her situation would have a clear memory of instructing a student to flush drugs down the toilet. Likewise, her memory that a teacher instructed the student to do so in her presence would likewise be significant enough to remember clearly. Further, Ms. Grace and Respondent were close colleagues, frequently having lunch together, and socializing outside of school on at least one occasion. Ms. Grace’s subsequent statement accepting responsibility for telling L.L. to flush the drugs was likely an attempt to protect Respondent. When she gave her second statement, Ms. Grace had already resigned from Dunnellon Middle; therefore, she could not be disciplined for falsely accepting responsibility for instructing L.L. to flush the marijuana. Finally, Ms. Grace’s testimony at the final hearing was too well- rehearsed to be credible. Notably, Ms. Grace had a well-rehearsed explanation for why Respondent would not have heard her tell L.L. to flush the drugs while they were sitting in her very small office, and she inserted that explanation in answer to a wholly-unrelated question. She attempted to explain Respondent’s state of mind, which she could not have known. In sum, Ms. Grace’s testimony was unreliable and was insufficient to establish that she, rather than Respondent, instructed L.L. to flush the marijuana down the toilet. Respondent’s testimony that she understood L.L. to mean he had marijuana in his system, rather than on his person, was not credible. L.L. had stated that he “had something he wasn’t supposed to have at school.” Respondent asked him if he “had weed” after asking him if he “had a weapon,” clearly seeking knowledge of what he possessed at school that he knew was off limits. Further, L.L.’s testimony that he showed Ms. Grace and Respondent the weed is accepted as true. Even if Respondent’s testimony that she understood L.L. to mean that he had marijuana in his system was accepted as true, that fact, coupled with her description of him as appearing ill, and possibly intoxicated,2 created a responsibility to take some step to protect the student’s health and well- being. If she understood L.L. to mean that he had ingested marijuana, and he appeared to her to be ill, her statement “that is no reason to go home,” was completely unprofessional. L.L.’s mother should have been contacted to pick him up from school, and administration should have been notified so that the situation could be avoided in the future to secure L.L.’s health and safety, as well as other students potentially involved.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Marion County School Board enter a final order upholding both the charges and the discipline imposed against Respondent, Maria Acosta. DONE AND ENTERED this 18th day of November, 2020, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK 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 18th day of November, 2020. COPIES FURNISHED: Mark E. Levitt, Esquire Allen, Norton & Blue, P.A. Suite 100 1477 West Fairbanks Avenue Winter Park, Florida 32789 (eServed) Eric J. Lindstrom, Esquire Egan, Lev, Lindstrom & Siwica, P.A. Post Office Box 5276 Gainesville, Florida 32627 (eServed) Heidi S. Parker, Esquire Egan, Lev, Lindstrom & Siwica, P.A. 2nd Floor 231 East Colonial Drive Orlando, Florida 32801 (eServed) Dr. Diane Gullett, Superintendent Marion County School Board 512 Southeast 3rd Street Ocala, Florida 34471 Richard Corcoran Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)
