The Issue The issues in this case are: Whether Respondent, Everest University (the "School"), discriminated against Petitioner, Hashim Aboudaya, on the basis of his place of natural origin (Middle Eastern), race (Caucasian), and/or religion (Muslim) in violation of the Florida Civil Rights Act by twice failing to promote Petitioner to the position of associate dean or director of Student Services; and Whether the School retaliated against Petitioner based on his place of natural origin, race, and/or religion by refusing to pay for his doctoral level college courses.
Findings Of Fact Petitioner is a Caucasian male, born in Lebanon and, therefore, of Middle Eastern heritage. He is a practicing Muslim. In July 2003, Petitioner began teaching as an adjunct professor at the School, teaching computer information services and teaching a few classes per year. In or around August 2007, Petitioner was promoted to senior network administrator, a non-teaching position, for the School. At all times relevant hereto, Petitioner served in that position. He currently teaches classes on an as-needed basis also. The School is a private college formerly known as Florida Metropolitan University. There are ten related campuses in the State of Florida, with one being in Melbourne, Brevard County, Florida. The Melbourne campus has two locations, one on Sarno Road and the "main" campus on U.S. Highway 1. Petitioner holds two master's degrees, one in management and one in computer resources and information management, from Webster University in Saint Louis, Missouri. He is pursuing a third master's degree, but it is "on hold" pending his completion of studies in a doctoral program. The doctoral program being sought by Petitioner is in the field of business administration with a major field of study in computer security. The degree is being pursued on-line through Capella University based in Minneapolis, Minnesota. Petitioner's resume indicates that the Ph.D. will be "done in the end of 2007," but it has obviously taken longer than planned. Petitioner has applied for several vacancies listed at the School, but for purposes of this proceeding, the following are relevant: (1) The associate academic dean position advertised in January 2010; (2) The associate academic dean position advertised in April 2010; and (3) The director of Student Services position advertised in August 2009. Associate Academic Dean Positions The following qualifications were specified in the School's job description for the associate academic dean positions. The applicant must: Possess the necessary academic credentials and work related experience mandated by the Company, State accreditation agencies and any other regulatory agency that monitors compliance. Have a minimum of 2 years practical work experience in business or education. Have a minimum of 1 year teaching experience, but The years of experience may be waived at the sole discretion of the college president so long as the incumbent meets the accreditations, State and Federal requirements necessary to hold the position. There was also a job posting (as opposed to a job description) for the associate dean position on a website associated with Corinthian Colleges, Inc. ("CCI"), the School's parent company. That job posting indicated that a master's degree was required for the job and included other requirements not set out in the School's official job description. The college president, Mark Judge, could not verify the accuracy of the job posting. There is no persuasive, credible evidence that the job posting was produced by the School or intended to be used as the basis for filling the associate dean position. The first associate dean position was for the Sarno Road site which housed the School's allied health programs, e.g., medical assistant training, pharmacy technician associate degrees, medical insurance billing and coding, and healthcare administration. Besides the requirements set forth in the job description, the School was looking for someone with health- related experience as well. Terri Baker, a registered nurse, was ultimately hired to fill the associate dean position. Baker had approximately 20 years of experience with the School. During that time, Baker had taught classes in the allied health program, had served as a program director, and was an associate dean at other campuses within the CCI system. Baker does not hold a master's degree, but the job description issued by the School does not require that level of education. The job posting, which appeared in a publication issued by the School, does say that a master's degree is required, but there is no competent and substantial evidence to suggest the job posting supersedes the job description. Notwithstanding her level of schooling, it is clear Baker was a perfect fit for the job. The decision to appoint her, rather than Petitioner, to the position was based on factors other than race, national origin or religion. The second associate dean position was advertised in the Spring of 2010. The job description for that job is the same as the previous associate dean position. However, there are many different duties and expectations associated with the second position. For example, while the first position was related directly to the allied health programs at the School, the second position had a different focus. The person filling this position would be working on the main Melbourne campus, rather than the satellite campus. His or her duties would be directed toward tasks such as transfer of credit analysis, scheduling, and registering new students. The dean would also be responsible for monitoring the School's compliance with accreditation standards and internal audit standards. Betty Williams was hired to fill the second associate dean position. Williams had significant management experience in academic settings. She had served as an academic dean for one of the School's competitors and had extensive knowledge and experience with compliance accreditation standards. As compared to Petitioner, Williams was a much better fit for the position. Her experience would allow her to step into the position and begin working on problems immediately without the necessity of a period of training and acclimation. Director of Student Services Position The director of Student Services was expected to help students who were experiencing hardships in their academic progress. The director would help students who were forced to withdraw from school for financial or other personal reasons. He/she would provide support for students taking online classes and assist students trying to re-enroll into school following dismissal or withdrawal. A close working relationship with students was an important factor in this position. The School's job description listed the following requirement for the director of Student Services position: Bachelor's degree required Minimum of 3 years practical work experience or equivalent training Excellent communication and customer service skills Excellent computer skills The person who ultimately was hired for this position, Stacey Jacquot, was an outstanding employee at the School and had been selected as its Employee of the Year in two different positions. Jacquot is a Caucasian female; neither her religion, nor her place of natural origin was alluded to at final hearing. The hiring of Jacquot, as opposed to Petitioner, for this position was based on Jacquot's experience and background. She had worked in the student services department for the school as both an online coordinator and as a re-entry coordinator. Thus, her experience was directly related to the requirements of the position. Petitioner provided unsubstantiated testimony that by virtue of his teaching a number of classes over the past few years, he has some experience in counseling students concerning their issues. However, even if true, his experience did not match that of Jacquot. Request for Reimbursement for Doctoral Coursework Petitioner alleges retaliation by the School. The specific retaliatory action was the denial of his request to be reimbursed for coursework as he pursued a doctorate degree. In February 2010, Petitioner submitted a request to the School, asking that tuition expenses for his coursework be paid under the School's tuition reimbursement program. The program is set forth in policies maintained by the School and is available to "eligible employees for eligible classes." A benchmark for reimbursable tuition is that the courses being taken enable the employee to be more efficient in a current role or prepare them for a role at the next level of their employment. There are a number of written policies addressing the tuition reimbursement program. Those policies are fluid and have changed from time to time over the past few years. The policies are implemented and overseen by the director of Organizational Development for CCI, Jeanne Teeter. Teeter resides and works in California, corporate home of CCI. It is Teeter's duty to ultimately approve or deny all requests for tuition reimbursement by employees of all of CCI's colleges around the country. Teeter reviewed Petitioner's request for tuition reimbursement pursuant to a preliminary approval by the School's president, Mark Judge. It was Judge's initial decision to approve Petitioner's request, but Judge sent it to Teeter for a final decision. Teeter had never met Petitioner and did not know anything about him, except as found in his personnel file and his application for tuition reimbursement. Teeter, as was her normal procedure, considered the relevance of the degree being sought, not only to Petitioner's current role, but as to potential future roles as well. Because the course work for which reimbursement was being sought related to an advanced degree, a doctorate, Teeter was less inclined to approve it. Approval would necessitate a clear line of sight between the employee's current role to a role that would require a Ph.D. Inasmuch as Petitioner's role as senior network administrator did not require a doctorate and there was no clear line of sight between his present position and that of a professor or management employee requiring one, Teeter declined the request. At the time she made her decision, Teeter was not aware that Petitioner had made a discrimination claim against the School. Her decision, therefore, could not be retaliatory in nature. Rather, she acted in concert with the policies that address tuition reimbursement and made a decision based solely upon those policies. Petitioner appears to be an energetic and hard-working member of the School's staff. His testimony was credible, but was sometimes off the point. Although he is a well-educated person with three college degrees and is pursuing others, it is clear that English is his second language.1/ Petitioner seemed to be sincere in his belief that he was discriminated against, but did not provide persuasive evidence to support that claim.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Florida Commission on Human Relations dismissing the Petition for Relief filed by Hisham Aboudaya in its entirety. DONE AND ENTERED this 21st day of November, 2011, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN 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 21st day of November, 2011.
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 The issue is whether Respondent violated the Florida Civil Rights Act of 1992, as alleged in the Petition for Relief filed by Petitioner in September 1999.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Ausbon Brown, Jr. (Petitioner), an African-American male was born on April 25, 1943. Petitioner filed a charge of discrimination with the Florida Commission on Human Relations (FCHR) on December 5, 1997, alleging violation by the Florida Department of Labor and Employment Security (Respondent) of the Florida Civil Rights Act of 1992, as contained in chapter 760, part I, Florida Statutes. On August 18 1999, over 20 months later, FCHR issued a "Notice of Determination: No Cause." September 27, 1999, Petitioner filed a Petition for Relief, alleging that Respondent had subjected Petitioner to discriminatory hiring practices on the basis of the race and age of Petitioner. While not identifying specific positions, the Petition for Relief contains the allegation that Petitioner applied for 244 positions within the hiring jurisdiction of Respondent. By order dated January 18, 2000, Administrative Law Judge Donald R. Alexander limited the final hearing to allegations pertaining to Petitioner's application for position number 02925, Research Associate, within Respondent's Division of Workers' Compensation. Respondent denies Petitioner's allegation of discriminatory hiring practice and contends that it hired the most qualified employee. While not specifically established at hearing, it can be reasonably inferred from the evidence that Respondent employed at least fifteen employees for each working day in each of twenty or more calendar weeks in the current or preceding year and thus is an employer within the meaning of the law. Petitioner received a Bachelor of Science degree in biology in 1965 from Florida A&M University, a Master of Science degree in wildlife and fisheries science in 1978 from Texas A&M University, and a doctorate in wildlife and fisheries science in 1991 from Texas A&M University. Petitioner's job applications reflect that from June 1965 until April 1994, he worked in various positions for the U. S. Department of Commerce, National Marine Fisheries Service. Beginning on July 28, 1995, and continuing for several years, he was employed as a child support enforcement case analyst with the Florida Department of Revenue (DOR). Petitioner is currently the supervisor of science laboratories for Daytona Beach Junior College. Respondent, in the fashion of most state agencies, periodically issues a "Job Opportunity Announcement" which describes career service positions currently available in the agency. Such an announcement was issued on January 15, 1997, for position number 002925 and read as follows: 3122 Research Associate Notes: Open Competitive. Two years of Social Science or public policy research involving Production or reports: Use of PC in Two of the following four areas: word-processing, spreadsheet, statistical analysis or graphic applications preferred. Min. Qual: A bachelor's Degree from an accredited college or university and three years of professional experience in statistics, research, analysis or program evaluation. A Master's Degree from an accredited college or university can substitute for one year of the required experience. The "Vacancy Notification/Action Form" submitted in support of the Job Opportunity Announcement, dated December 17, 1996, contains the following statement: Preferred Qualifications: At least 2 years of social science or public policy research involving production of reports; use of personal computers in two of the following four areas: word processing, the spreadsheet, statistical analysis or graphic application. A vacancy announcement published in the "Tallahassee Democrat" on January 19, 1997, contains the same statement of preferred qualifications. The preferences are consistent with the official job description for position 02925 as contained in Class Code 3122 for the class title of research associate. The class specifications also include the caveat that "additional knowledge, skills and abilities may be applicable for individual positions in the employing agency." Within Respondent's structure, Ken Baugh supervised position number 02925 and was responsible for the hiring process, inclusive of the placement of the job announcement and the vacancy advertisement. Baugh based the stated job specifications upon the Career Service Class Specifications, as well as his knowledge of the requirements to perform successfully in the position. Prior to advertising the position, Baugh developed a selection package which included a work sample test, a job description, a list of knowledge, skills and abilities, a screening criteria, application review process, and interview questionnaire. Baugh submitted the package to the Office of Civil Rights and Minority Affairs within Respondent's structure where it was approved. Such approval indicates that the package reflected a process to measure core job duties. Respondent received 115 applications for position 02925. Five applicants were interviewed for the position. All met the minimum qualifications for the position. Gary Sabitsch, a white male born on September 24, 1965, was the successful candidate. Sabitsch has a bachelor's degree and has been employed for four years by a private entity as a research associate. He performed tasks in his research associate position inclusive of governmental consulting, as well as collection and analysis of data. Sabitsch's qualifications also include experience in word processing, spreadsheets, and graphics. His computer software usage and experience also are more extensive than that of Petitioner, in Baugh's estimation. The experience of Sabitsch in the public policy or social science arena more appropriately met Braugh's expectations for the successful candidate than the experience of Petitioner which was limited to the natural science area. In his evaluation and interviews, and subsequent selection of Sabitsch, Baugh used the interview package previously approved by the Office of Civil Rights. Baugh had no previous knowledge of Sabitsch prior to the interview. Applications provided to Baugh did not have the EEOC survey portion, which permits an applicant to voluntarily reveal age and race. These portions of the applications had been previously removed prior to Baugh's perusal. Baugh's selection of Sabitsch was approved by Respondent's Office of Civil Rights. Petitioner presented no evidence that the selection process was varied so as to discriminate on the basis of age or race. Further, he presented no evidence that he met the preferred criteria noticed for the position. In summary, there is no credible evidence that Respondent's actions were a pretext for discrimination, as alleged in the Petition for Relief. Further, there is no evidence that the employment decision at issue in this proceeding was grounded on discriminatory animus in any respect, or that a discriminatory reason motivated Respondent's actions.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing, with prejudice, the Petition for Relief. DONE AND ENTERED this 8th day of June, 2000, in Tallahassee, Leon County, Florida. DON W. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (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 8th day of June, 2000. COPIES FURNISHED: Ausbon Brown, Jr. Post Office Box 289 Daytona Beach, Florida 32636 Sharon Moultry, Clerk Florida Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149 Dana A. Baird, General Counsel Florida Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149 Sonja P. Mathews, Esquire Department of Labor and Employment Security Hartman Building, Suite 307 2012 Capital Circle, Southeast Tallahassee, Florida 32399-2199
Findings Of Fact The Respondent was employed by the School Board of Volusia County from September 1, 1981 until November 14, 1989 as a painter or painter mechanic. T- II-39,40. The terms and conditions of the Respondent's employment was governed by the contract between the Petitioner and the American Federation of State, County, and Municipal Employees, Council 79, Local 850. This contract provides that employees can be disciplined, to include discharge for just cause. Joint Exhibit 1. The Respondent was employed as a painter within the Board's facilities support operations department. This department employs approximately 130 craftsmen and 20 clerical and supervisory staff. T-I-38. The Respondent's immediate superior was foreman of the painters, Joe Isaac, who has held that position for the past 18 years. T-I-38,64 The chain-of-command from the top of the facilities support department is Charles Lambeth, who is Director of Facilities Operation; Terry Ellis, who is Assistant Director in charge of the crafts area; and Clifton Robertson, who is the Director of Facilities Support Operations or the personnel administrator for the facilities support department. Clifton Robertson investigated the allegations against the Respondent, counseled with the Respondent, and issued the disciplinary letters and reprimands given to the Respondent. On October 24, 1989, Mr. Florio engaged in a loud, profane, and inappropriate shouting match with a coworker, Larry Brazil, while on the job scraping paint outside a classroom at Seville School. Their conduct was such that a teacher left her classroom, outside of which they were working, and cautioned them about the disturbance they were causing. The acting foreman, Don Jenkins, overheard the exchange between the Respondent and Brazil in which the Respondent used obscene or profane language. The acting foreman did not hear Brazil use such language, and other witnesses testified that they had never heard Brazil use such language on the job. On October 25, 1989, the Respondent got into another argument with another coworker, Ken Griswold. During this argument, the Respondent threw his paint scraper at Griswold, who had made no threat to the Respondent. With only the verbal provocation, the Respondent threw the scraper at Griswold and would have struck him had Griswold not jumped back out of the way. There was dissatisfaction among the Respondent's coworkers about the way he did his job. The Respondent had been injured in 1987 and was restricted from working on ladders over six feet tall, lifting regular ladders, and spray painting. Sometime later, the Respondent's restrictions were altered to permit him to work on a six-foot aluminum ladder. His refusal to do any type of work which was covered by his medical restrictions was a source of contention with his coworkers. In addition, he had a history of not following regulations and requirements which the other men were required to follow. On October 24 and 25, 1989, the Respondent was assigned to a team of painters to scrape and paint the exterior of a school. On both days, arguments between the Respondent and coworkers arose over the Respondent's refusal to scrape paint from the ladder. On October 24, 1990, this led to a shouting match with Larry Brazil and to the Respondent throwing a paint scraper at Ken Griswold on October 25, 1990. On March 21, 1989, the Respondent was directed at 7:00 a.m. to report to work at Seabreeze Senior High School by his foreman, Joe Isaac. The Respondent did not do so and stayed at the main maintenance facility until 8:45 a.m., when he was discovered by the Assistant Maintenance Director, Terry Ellis, who instructed him to report to the high school. The Respondent again refused to go and remained at the main maintenance facility until 8:54 a.m., when the Maintenance Director, Charles Lambeth, arrived. The Respondent had asked his foreman, Joe Isaac, to see Lambeth; and Isaac had told Florio to report to work at the high school and if Lambeth wanted him, Lambeth would send word through Isaac for Florio to report to Lambeth. When confronted by Ellis, the Respondent told Ellis he wanted to see Lambeth. Ellis also told Florio to report to the school immediately. Florio remained at the maintenance headquarters until Lambeth arrived. Lambeth asked Florio why he was there, and Florio stated that he had been told Lambeth wanted to see him. Lambeth told Florio that he had not wanted to see him, and Florio blamed the incident on the men lying to him. Florio did not report until told to do so by Lambeth. The Respondent had his pay docked for two hours and received a letter of reprimand for failure to follow direct instructions. The letter of reprimand described the Respondent's actions as malingering and insubordination. Painters reported each day to the maintenance headquarters, after which they took School Board vehicles to the job sites. Similarly, after being released at the job site, the painters were supposed to return to the main maintenance facility, where employees were dismissed for the day. On September 11, 12, 13 and 14, 1989, the Respondent drove his private automobile to the school at which the paint team was working. Although the Respondent had been given permission to drive his car on Monday of that week because his stomach had been giving him problems, he took his car the rest of the week and left directly from the school, not returning to the maintenance headquarters, as required on the dates indicated above. The Respondent received written notice that he was being docked 160 minutes. On or about September 21, 1989, the Respondent told a coworker that he refused to drive. The Respondent did not deny telling the coworker that he would not drive but asserted that he had been kidding. On September 22, 1989, the Respondent slammed open the door of a School Board truck striking another School Board truck in the door and damaging both trucks. The property damage was $121.63. The Respondent had slammed the door open because he was angered by the remarks of a coworker who chided him about driving. The letter of reprimand which the Respondent received for his conduct on September 21 and 22 indicated that the Respondent had been encouraged to enter the Employee Assistance Program. The Respondent did not avail himself of the program. The Respondent frequently complained to his supervisors about what he described as "harassment" and "kidding" by his coworkers although the Respondent engaged in similar behavior with his coworkers. As a result of his complaints, his superiors counseled his coworkers not to tease, harass, or kid the Respondent. The Respondent is a malingerer. He developed a pattern of avoiding work by failing to report when he was supposed to report; by refusing to perform duties within his ability as requested by his fellow workers; and by asserting he was ill. The Respondent was ill-tempered and acted out inappropriately with increasing frequency and violence. The Respondent refused to acknowledge that there was a problem, that the problem was him, and to seek assistance for it. The employer counseled with the Respondent and used progressive discipline to attempt to modify the Respondent's behavior to no avail. The employer had just cause to discharge the Respondent.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is therefore recommended that the Respondent be discharged. RECOMMENDED this 20th day of August, 1990, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of August, 1990. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-6360 The parties filed proposed findings of fact which were read and considered. The following is a listing by party of the findings which were adopted and those which were rejected and why: Petitioner's findings by paragraph number which began with paragraph 7: Paragraph 7 Adopted Paragraph 8 Adopted Paragraph 9 Adopted and rewritten Paragraph 10 Rejected; restates exhibit Paragraph 11 1st sentence adopted; remainder irrelevant Paragraph 12,13,14 Adopted and rewritten Paragraph 15(a) Irrelevant Paragraph 15(b) Rejected; restates exhibit Paragraph 16-20 Adopted and rewritten Paragraph 21 Irrelevant Paragraph 22-29 Adopted and rewritten Respondent's findings by paragraph number beginning with paragraph 1: Paragraph 1-4 Adopted and rewritten Paragraph 5 Irrelevant Paragraph 6-10 Adopted and rewritten Paragraph 11 Whether Brazil was disciplined is unknown Paragraph 12 Rejected as contrary to fact Paragraph 13-14 Adopted and rewritten Paragraph 15 Rejected that Florio did not throw the scraper at Griswold; remainder adopted and rewritten Paragraph 16 Adopted and rewritten Paragraph 17 Evidence was received that coworkers were counseled on several occasions; however, it is also irrelevant because the disciplinary records of the other employees were not introduced. Evidence was received that; at least one other employee was discharged for similar types of behavior. Paragraph 18 Adopted and rewritten Paragraph 19-24 Irrelevant Paragraph 25 The statement is true, but gives the erroneous impression that Florio was discharged because he did not participate in the program. The employer's reference of the employee to this program was relevant because it shows the employer had such a program and it was available. The employee's rejection was relevant because it indicates how confused the employee is about his situation and condition. Paragraph 26 Rejected as contrary to fact COPIES FURNISHED: Harrison C. Thompson, Esq. THOMPSON, SIZEMORE & GONZALEZ P.O. Box 639 Tampa, FL 33601 Ben Patterson, Esq. P.O. Box 4289 Tallahassee, FL 32315 Dr. Jame D. Surratt, Superintendent Volusia County School Board P.O. Box 2118 Deland, FL 32720 Honorable Betty Castor Commissioner of Education Department of Education The Capitol Tallahassee, FL 32399-0400
The Issue Whether Respondent, University of Central Florida (“UCF”), engaged in a discriminatory employment practice and/or retaliated against Petitioner, Michael Flint.
Findings Of Fact UCF is a state university located in Orlando, Florida, with an enrollment of about 60,000 undergraduate students and 10,000 graduate students. Mr. Flint is a 71-year-old Vietnam combat veteran who suffers from post-traumatic stress disorder (“PTSD”), chronic fatigue, bipolar disorder, traumatic brain injury (“TBI”), and diabetes. He spent 30 years as a police officer. He graduated from Yale University with a degree in Psychology and, in 2002, obtained a master’s degree in Criminal Justice from UCF. Mr. Flint is currently a full-time instructor at UCF in the Criminal Justice Department and has held that position for over 15 years. In 2006, Mr. Flint learned that some faculty members were taking doctoral classes for free pursuant to a UCF policy. Like other state workers, UCF allowed its employees (and their spouses and children) to take up to six credit hours per semester for free so long as the course had an open seat and did not cost the school money. The privilege also applied to coursework towards a doctoral degree, though employees had to pay for their required dissertation credit hours. Mr. Flint believed that obtaining his doctorate degree would make him a better instructor and ensure he had cutting edge knowledge in his teaching field. But, he understood that pursuing this degree was both completely independent from and secondary to his full-time faculty position. Indeed, UCF neither encouraged nor required him to pursue a doctorate degree, as a condition of continued employment or for training, job security, or advancement purposes. His job as a full-time instructor would remain unaffected by the classes he took. The process for obtaining a doctorate degree is rigorous. First, students must complete their coursework, which often takes about two years, and pass a set of comprehensive exams. Then, they decide on their area of research and choose a dissertation committee, which is typically comprised of five faculty members: a chair, often with expertise in the student’s area of research, and four other faculty members, one or two within the student’s area of research and one or two outside of that area. Next, they draft a prospectus outlining the focus of the research, which has to be approved by and defended before the committee, after which they conduct intense research for about a year. Students then complete their dissertation, which must be approved by and defended before the committee. If successful, they are approved to graduate. Like most universities, UCF follows the seven-year rule, which required all doctoral students to complete their degrees within seven years of admission so as to ensure that the research and coursework does not become stale. Although exceptions could be granted, they are discretionary academic decisions based on the circumstances of the particular student. Exceptions beyond ten years are extremely rare and, of those granted such an exception, only about half ultimately graduated. Understanding that pursuing this degree would be secondary to his full-time job and that he had to complete the process in seven years, Mr. Flint applied for and was accepted into the PAF Program in the College of Health and Public Affairs (“COHPA”). He began his doctoral coursework in August 2006. From 2006 through 2009, Mr. Flint worked full-time teaching five to six courses in the Fall and Spring semesters and three to four courses in the Summer semesters. During this same period, he took about one to two substantive courses towards his degree for free each semester, although he backed off his coursework (with approval from Dr. Thomas Wan, the PAF Program director at the time) for a brief period when his wife was diagnosed with cancer. However, in late 2009, Mr. Flint developed Guillain- Barre Syndrome (“GBS”), which caused him to be hospitalized, placed on life support for almost two months, after which he spent an additional six months at home recovering. While in the hospital, he developed diabetes. He also developed chronic fatigue syndrome, from which he continues to suffer years after his recovery. UCF placed him on administrative medical leave from his teaching responsibilities for Spring and Summer 2010, but he resumed teaching a full course load in Fall 2010 and has continued to do so ever since. As for his doctorate degree, Mr. Flint requested a special leave of absence from CGS, which oversaw all of the graduate programs across the university. CGS granted the request and placed a hold on his enrollment for all of 2010. Mr. Flint returned to taking classes in Spring 2011 and completed his substantive coursework in Fall 2011. Still teaching full-time each semester, Mr. Flint moved on to the comprehensive exam phase of his studies. He studied for those exams in 2012 and passed them after one unsuccessful attempt in Fall 2013. Although the average student finished their coursework and exams in about two years, it took Mr. Flint seven years. While continuing to meet his full-time teaching obligations, Mr. Flint spent 2013 and 2014 trying to conduct dissertation research and prepare his prospectus, now having to pay for those credit hours. His dissertation committee initially consisted of Dr. Bob Langworthy, as chair, and Dr. Matt Matusiak, Dr. Jeff Rosky, and Dr. Sophia Dziegielewski. However, by Fall 2014, Mr. Flint had not yet submitted his prospectus to his committee. Ranetta Guinn, the director of Graduate Affairs for COHPA, met with him because it had been over seven years since he began the program. They created a timeline for finishing his prospectus by March 2015, defending it by May 2015, and defending his dissertation by April 2016. Ms. Guinn explained that he would need to apply for an exception from CGS to extend the deadline to ten years. Unfortunately, around the same time, Dr. Langworthy retired and Mr. Flint had to find a replacement chair for his committee. Dr. Dziegielewski ultimately agreed to serve as the chair, but that required Mr. Flint to find another faculty member in his area of expertise to serve on the committee. Dr. Cory Watkins ultimately agreed. In March 2015, Mr. Flint petitioned CGS to extend the graduation deadline to ten years based on his 2009 GBS diagnosis, chronic fatigue, diabetes, and his disability rating as a combat veteran. He did not inform CGS, or anyone else at UCF, about his PTSD, bipolar disorder, or TBI. Dr. Dziegielewski wrote a letter supporting his petition based on a Summer 2016 graduation. The director of the PAF Program also wrote a supporting letter based on his medical issues and recent setback in having to find a new committee chair. In April 2015, CGS approved the petition and extended the deadline for Mr. Flint to graduate through Summer 2016. The letter noted that no further petitions would be considered. At the time, Mr. Flint believed it was a reasonable accommodation and that he would be able to meet the timeline, but ultimately was unable to do so. He did not defend his prospectus until January 2016, though he was supposed to complete that task by May 2015. He began drafting his dissertation in the Spring 2016 (again, having to pay for those credit hours), but did not timely defend it by May 2016. Notwithstanding, he was permitted to continue working in the hopes he could defend and graduate by the end of 2016. When Mr. Flint had not yet submitted his dissertation in October 2016, he informed Dr. Dziegielewski that he was struggling with his normal workload, periodic illnesses, and chronic fatigue but would try to finish. But he did not petition CGS for another exception. He also failed to notify her or anyone else at UCF about his PTSD or bipolar disorder.2/ Because he ultimately failed to submit even a draft of his dissertation, he received an unsatisfactory dissertation grade for the Fall 2016 semester. In January 2017, CGS dismissed Mr. Flint from the PAF Program. He filed an appeal to be reinstated but the grievance committee, limited to the issue of whether CGS followed proper procedure in reaching its decision, denied relief in March 2017. While his appeal was pending, Mr. Flint submitted a draft of his dissertation. Upon review in March/April 2017, his committee members generally believed that it was almost ready and that he could complete his revisions and defend it in Fall 2017 or Spring 2018 at the latest. However, the PAF Program director confirmed nothing could be done because the draft was not then defensible, no more extensions could be given, and his appeal already had been denied. Notwithstanding his dissertation issues, Mr. Flint met his full-time teaching obligations throughout this period. He never asked for leave or a reduced schedule to have more time to devote to his studies. He taught consistently each summer to earn additional compensation, though doing so was not required, instead of focusing his attention on his studies. Even when his supervisor asked him to take a certification course on top of teaching in Fall 2016, he did not even think to ask if he could delay that course for a semester so he had more time to finish his dissertation. He also could have reduced his teaching load that semester by one course to account for the certification class, but chose not to do so. Mr. Flint was clearly a devoted employee who made his teaching position his main priority. Unfortunately, the combination of putting his studies second and the many medical conditions from which he suffered caused him to fail to meet the extended deadlines and to be dismissed from the PAF Program. Mr. Flint then filed a complaint with the Commission, alleging that UCF wrongfully dismissed him from the PAF Program and retaliated against him based on his age and handicaps. To establish that UCF discriminated against him, Mr. Flint presented the testimony of two other UCF faculty members, Robert Wood, Esquire (62 years old), and Abby Milon, Esquire (59 years old), who believed UCF had taken adverse employment actions against them and other older faculty members relating specifically to their teaching positions, such as reducing their course loads. However, neither of them were in a doctorate program like Mr. Flint and, moreover, their complaints related solely to their jobs as faculty members. Conversely, Mr. Flint suffered no such adverse actions relating to his job as a faculty member. He could not complain about the way UCF treated him in that role, even after he challenged his dismissal from the PAF Program, as that academic decision did not adversely impact his faculty position. He also is still permitted to take up to two courses for free per semester at UCF, just as he was before. Both UCF and Mr. Flint also presented the testimony of several UCF faculty members involved in Mr. Flint’s studies, from his committee members to PAF Program directors to the associate dean of CGS. Every such witness who testified about Mr. Flint’s dismissal confirmed that the decision was based on his failure to meet the agreed-upon extended deadlines and that his age and handicaps, most of which were unknown to the decision makers, had nothing to do it. Though his committee members confirmed that they were supportive of him being given a chance to graduate, they acknowledged that CGS made the final decision, that he had not adhered to the deadlines after they were extended, and that it was quite rare for any student (young or older, healthy or sick) to graduate beyond the ten-year mark.
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 finding that Petitioner, Michael Flint, failed to establish that Respondent, University of Central Florida, committed an unlawful employment practice against him and dismissing his Petition for Relief. DONE AND ENTERED this 17th day of June, 2019, in Tallahassee, Leon County, Florida. S ANDREW D. MANKO 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 17th day of June, 2019.
The Issue The issue is whether Respondent should be dismissed from his employment with Florida A & M University, as proposed in a termination letter dated August 19, 1999.
Findings Of Fact Based upon all of the evidence, including the stipulation of the parties, the following findings of fact are determined: In this employee termination case, Petitioner, Florida A & M University (FAMU), seeks to terminate the employment of Respondent, Calvin C. Miles, Jr., on the ground that he sexually harassed three female students and retaliated against two students in violation of Rule 6C3-10.103, Florida Administrative Code. Because FAMU is a part of the State University System, the Board of Regents was also identified as a Petitioner. Respondent has denied all allegations. FAMU has a non-discrimination policy and harassment complaint procedure codified in Rule 6C3-10.103, Florida Administrative Code. Paragraph (6)(b) of the rule prohibits sexual harassment while paragraph (11)(a) prohibits retaliation. Respondent was subject to this policy and procedure, and on August 26, 1998, he signed a paper indicating that he had read and understood the same. On August 22, 1997, Respondent was hired as General Manager of WAMF, a radio station owned and operated by FAMU and which employed a number of FAMU students. Whether he was considered a non-instructional or instructional employee is not clear. In any event, the station had been without a full-time manager "for a while," and Respondent was told to come in and "put in place some policies and format . . . and move the station in the direction that [FAMU] thought it should go." He was also told that the station should be operated as a teaching facility. FAMU agrees that some of Respondent's decisions in implementing these directives "caused some people to bristle." Respondent's immediate supervisor was Dr. Hawkins, Director of FAMU's Division of Journalism. As such, Dr. Hawkins was required to prepare Respondent's annual evaluations. The first evaluation was prepared on September 29, 1998, and was transmitted to Respondent with a letter of the same date. In his letter, Dr. Hawkins concluded that Respondent's "first year here has been a mixed bag." While he acknowledged that Respondent had "turned up the level of professionalism at the station substantially and in rather quick fashion," he noted other matters of concern. Among these was a concern that at least three female students said that you had made inappropriate remarks to them. While none of these students have filed a complaint, I believe I have a responsibility to mention them now. In addition to the comments of these students, other female students have said that they just plan to stay away from the station so they do not have to be bothered. This is not the climate we want. This letter placed him on official notice that some female students perceived his conduct towards them as offensive and having an improper sexual connotation. In response to his evaluation, Respondent wrote Dr. Bryant a lengthy letter dated October 22, 1998. As to the allegations of sexual misconduct, Respondent "strongly suggest[ed] that the University conduct a thorough investigation of all complaints of this nature." During his tenure with FAMU, Respondent had two or three meetings with the Dean of the School of Journalism, Media, and Graphic Arts, Dean Ruggles, and his immediate supervisor, Dr. Bryant, regarding the foregoing complaints of sexual misconduct. Respondent was urged to use "extreme caution," to reassess his behavior with female students, and warned that "if these allegations were taken to the complaint stage" by a student and found to be substantiated, there would be severe consequences. In addition, on at least one occasion, Respondent met with the Director of FAMU's Office of Equal Opportunity Programs regarding a complaint by another student. Therefore, it is fair to infer that Respondent was well aware of on-going accusations being made against him, and that he should be extremely cautious in his behavior around female students. After formal complaints of sexual harassment were filed by three female students in February 1999, FAMU's Office of Equal Opportunity Programs conducted an investigation. On May 11, 1999, the President of FAMU notified Respondent that the findings of the investigation revealed that Respondent had violated Rule 6C3-10.103, Florida Administrative Code, and that FAMU intended to terminate his employment. Respondent then availed himself of the right to have an "investigatory interview" by a University Personnel Committee on July 13, 1999. When the committee determined that no new facts had been presented, Respondent was dismissed from employment effective August 26, 1999. This appeal ensued. Although the termination letter does not identify the specific allegations which form the basis for the termination, in a Joint Prehearing Stipulation filed by the parties, FAMU has alleged that Respondent "engaged in conduct and actions toward[s] [Symphony] Parson, [Deanna] McKinley[,] and [Jackeline] Pou that rose to the level of sexual harassment in violation of Rule 6C3- 10.103(6)(b), Florida Administrative Code." FAMU further alleged that Respondent "exhibited behavior towards Ms. Parson and Ms. Maria Williams, a witness in this matter, that rose to the level of retaliation as set forth in [Rule] 6C3-10.103(11)(a), F.A.C." However, there was no evidence regarding retaliation against Maria Williams, who was not a witness in this case, and that portion of the charges has been disregarded. Parson, McKinley, and Pou testified at the final hearing, and although Respondent disputed the accuracy of their allegations, their testimony has been accepted as being the most persuasive on these issues. Findings with respect to those allegations are set forth below. Deanna McKinley Deanna McKinley (McKinley) enrolled at FAMU in the fall of 1996 and was a senior at the time of hearing. On September 1, 1998, McKinley began working at WAMF and hosted an Inspirational Gospel Morning Show using the on-air name of "Deanna Devine." Respondent was her supervisor. Throughout her employment at the radio station, McKinley felt "uncomfortable" around Respondent. This was because he would stare at her breasts, always place his hands on her shoulders when speaking to her, squeeze her shoulders, touch her hand in the Disc Jockey (DJ) booth, and stand extremely close to her while the two spoke. She was especially uncomfortable "being in the same studio with him, because the studio was in a different part of the building, it was locked, it was dark, [and] usually [she] was the only one there." Although she disliked Respondent's conduct and on occasion had told him that she disapproved of it, McKinley was under the impression that unless she tolerated Respondent's actions, she would not be allowed to continue as a DJ or "make progress" at the station. Besides the foregoing conduct, Respondent made personal remarks of a sexual nature to McKinley. For example, when she would bend over, he would say something like "Don't bend over like that, you will get someone excited." He also made a comment about how "adorable" and "kissable" she was, and that if he were her man, he "would just kiss [her] all the time." Once, when McKinley remarked ". . . little old me?", Respondent stared at her breasts and replied "Nothing on you is little, Deanna. But that's all right. It's all good." In January 1999, McKinley accidentally dropped something on the floor in the studio and bent over to pick it up. Respondent again stated "You should not bend over like that, Deanna, you may get someone excited." This latest incident triggered a decision by McKinley to leave the radio station. It is fair to infer from the evidence that McKinley perceived the radio station to have a hostile working environment, and that Respondent's conduct unreasonably interfered with her educational performance and ability to work at the station. On February 1, 1999, McKinley submitted her letter of resignation to the radio station. On February 11, 1999, she filed a complaint with FAMU's Office of Equal Opportunity Programs. Symphony Parson Symphony Parson enrolled at FAMU in the fall of 1997 with a major in broadcast journalism. She began working at WAMF that same year as a music director and on-air personality. Respondent was her supervisor. In April 1998, and while on duty at the station, Parson was taking a telephone message for the station secretary late one afternoon when Respondent came up behind her and began rubbing her shoulders and then moved his hand onto her breast. She told him to stop, "cursed him," and then left the station. In November 1998, Parson was in the station "writing on the file cabinet" when Respondent came up behind her and "brushed up against her" rubbing his shoulders against her. She again "cursed him out." A month later, he repeated the same conduct. According to Parson, she felt "violated" and "horrible" whenever this conduct occurred. Respondent also engaged in inappropriate conversations with Parson when she was on duty at the station. For example, he asked her if she was having sex with her boyfriend, and he told her how "cute" and "sexy" she was. These conversations made her feel extremely uncomfortable and led Parson to try to avoid Respondent whenever possible. At the same time, however, Parson felt that she had to tolerate this conduct to keep her position at the station. It is fair to infer from the evidence that Parson found the station to have a hostile working environment, and that Respondent's conduct unreasonably interfered with her educational performance and ability to work at the station. On February 8, 1999, Parson filed a charge of sexual harassment against Respondent with the Equal Opportunity Office. A few days later, Respondent was placed on administrative leave. When he returned to his office to clean out his personal items, he passed by Parson and said "You're dead." Parson reported this to the police, was forced to get a cell phone out of fear for her personal being, and asked her parents to temporarily move into her apartment. Jackeline Pou Jackeline Pou (Pou) enrolled in FAMU's journalism program in August 1996. She began working at WANF in September 1997. Respondent was her supervisor. While working at the station, Respondent would sometimes brush his body against Pou or touch her shoulders, which made her feel uncomfortable. Almost on a daily basis, he would make comments about how pretty she was or make comments about her "eyes". When he spoke to her, he would stare at her breasts. Once, she observed him staring at her "behind when [she] was walking away." In the summer of 1998, and just after Pou finished speaking on the telephone with a friend, Respondent asked who she was speaking with. When Pou responded "It's none of your business," Respondent said, "It couldn't have been a guy or the seat would have been wet." Respondent's conduct made Pou feel intimidated and uncomfortable, and she disliked being alone in the radio station with Respondent during the evening hours. Besides creating a hostile work environment, such conduct also unreasonably interfered with Pou's educational performance and ability to work at the station. On February 11, 1999, Pou filed a complaint of sexual harassment against Respondent with FAMU's Office of Equal Opportunity Programs. Respondent's contentions Respondent has steadfastly denied all allegations of sexual misconduct since they first surfaced in 1997 or 1998. At hearing, Respondent contended that he was an unpopular figure among the students due to his strong disciplinary measures. While this may be true, it does not justify his actions towards McKinley, Parson, and Pou. He suggested that McKinley's complaint was motivated by her displeasure with his disciplinary measures and failure to obtain her a parking pass. Respondent further suggested that Parson bore him ill-will after he demoted her to a different position at the station. He also contended that out of revenge, the three women met and conspired to file false complaints in an effort to have him removed from the station. Finally, Respondent suggested that each of the complainant's testimony was full of inconsistencies and lacked specificity as to certain dates and times. These contentions have been considered by the undersigned and rejected.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Florida A & M University enter a final order confirming the dismissal of Respondent as an employee. DONE AND ENTERED this 29th day of August, 2000, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (850) 488-9675, SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of August, 2000. COPIES FURNISHED: Bishop C. Holifield, General Counsel Florida A & M University Suite 300, Lee Hall Tallahassee, Florida 32307-3100 Avery D. McKnight, Jr., Esquire Ruth N. Selfridge, Esquire Florida A & M University Suite 300, Lee Hall Tallahassee, Florida 32307-3100 Calvin C. Miles, Jr. 501 Blairstone Road, Apartment 123 Tallahassee, Florida 32301
The Issue Whether Respondent was properly terminated by Petitioner for just cause or is entitled to reinstatement with back pay and benefits.
Findings Of Fact Respondent is a 48-year-old man who was employed between 1997 and August 15, 2005 (eight years), by Petitioner FAMU. During that period, he had attained permanent status in the classifications of Computer Programmer and Senior Computer Programmer in Petitioner FAMU’s Information Technology (IT) Services Unit. Respondent is a member of an AFSCME union bargaining unit. Petitioner reorganized its IT unit in 2004-2005. As a result, several employees of that unit, including Respondent, were targeted for layoff. FAMU’s standard procedure for advising employees for the first time that they were being laid off was to call them to the personnel office. After returning to work from sick leave on August 15, 2005, Respondent was informed that he was to report to the personnel office that afternoon. Four or five people already had been laid off, and Respondent anticipated that he would be laid off. Indeed, Respondent’s position as a Senior Computer Programmer Analyst had been eliminated as a result of the reorganization, but he did not know this in advance of the August 15, 2005, meeting. With apprehension, Respondent unsuccessfully attempted to secure a union representative to accompany him to the afternoon meeting. He subsequently secured a tape recorder from his home, with the intent of recording the meeting. The meeting turned out to be scheduled in the office of FAMU’s Human Resources Administrator. When Respondent arrived at the meeting location, there were two campus police officers, John Cotton and Audrey Alexander, present. Also in attendance were Dr. Janie Greenleaf, FAMU Human Resources Administrator; Dr. Kenneth Perry, at that time Associate Vice-President and Chief Technology Officer; and Howard Murphy, the IT consultant hired as special assistant to the university president. Mr. Murphy had done the assessment leading to the layoffs, and it was he who had recommended which employees to lay off. The meeting was intended by the administrators as an initial layoff meeting, wherein Respondent would be presented with a letter advising him that he was being laid off as of that date and of his rights under the rules governing layoffs (the Notice of Layoff); he would sign another letter acknowledging that he had received the Notice of Layoff; and any questions he had would be answered by those present. Upon entering Dr. Greenleaf’s office, Respondent was instructed to take a seat, and he did so. Dr. Greenleaf laid a Notice of Layoff (Exhibit P-2), dated August 15, 2005, on a table in front of him. Respondent then removed his tape recorder from an attaché case. This movement appears to have put the other attendees on edge, because terminations, for whatever reason, can turn violent. Respondent then placed the recorder on the table, and announced that he intended to record the meeting. He stated that anyone who did not want to be recorded could leave. Respondent testified that he had assumed that his behavior would cause the administrators to end the meeting and do what they intended to do without any input from him. (TR-74) Instead, Dr. Greenleaf told Respondent that he could not record the meeting because she did not want to be recorded. She told him to turn off his tape recorder. Apparently, Dr. Greenleaf was the only attendee who objected out loud to being taped. Respondent would not turn off his recorder. Respondent believed that he had a right to tape the meeting because of his status as a University Support Personnel Services (USPS) employee. He testified that during his employment with FAMU, he had attended workshops where he had been allowed to record the meeting for accuracy and make his written report to his superiors from the taped record. He also testified that he had recorded “in the open” a conversation with a superior about a promotion. He further testified that he had been in meetings and hearings with an AFSCME union representative when administrative personnel asked them to turn off the recorder and told them when they could turn on the recorder. In these instances, there were apparently “on the record” and “off the record” conversations. (TR 73-74) There is the suggestion in Respondent’s testimony that he believed that, in the absence of a union representative, he was entitled to tape any meeting. More than once in the August 15, 2005, meeting, Respondent stated to the assemblage that he had a right “as USPS” to record the meeting. After reviewing either a statute book or labor union book, Dr. Greenleaf advised everyone present that the meeting could not be recorded without all attendees’ consent. Dr. Greenleaf advised Respondent that he could take notes; have someone present to transcribe the meeting; or have an AFSCME union representative present; but that she did not wish to be recorded. From the evidence as a whole, it appears that Respondent believed that since he could not get a union representative there at that time, his only option was to tape the meeting, but there is no evidence that he requested to reschedule the meeting for a time when he could be accompanied by a union representative. Dr. Greenleaf repeatedly advised Respondent that he could not record the meeting and/or ordered him to turn off his tape recorder. Respondent repeatedly refused to cease taping and repeatedly advised the assemblage that anyone who did not wish to be recorded could leave. At least once, Dr. Greenleaf advised Respondent that his refusal could be construed as insubordination. Apparently, the volume of both Dr. Greenleaf’s and Respondent’s voices became elevated. Respondent’s affect was described by all the witnesses who testified as “defiant,” “agitated,” “adamant,” persistent,” and/or “insistent.” Dr. Greenleaf then interrupted the meeting and asked Respondent to wait outside. Dr. Greenleaf and Dr. Perry consulted and decided that Respondent was being insubordinate. A revised letter dismissing Respondent for insubordination (the Notice of Dismissal, Jt. Ex. 1) was drafted and signed by Dr. Perry. When he was permitted to return to Dr. Greenleaf’s office, Respondent turned on his tape recorder again. Dr. Greenleaf had removed the original layoff letter from the table and delivered to Respondent the Notice of Dismissal for insubordination, also dated August 15, 2005.3/ Respondent requested a copy of the original Notice of Layoff, and was informed by Dr. Greenleaf that he was now terminated for insubordination and the Notice of Layoff was withdrawn. Respondent was not provided with a copy of the Notice of Layoff. Respondent was ultimately conducted off campus by Officers Cotton and Alexander without further incident. Although Respondent was dismissed from FAMU, effective August 15, 2005, he remained on the University’s payroll through August 29, 2005, approximately two weeks following his dismissal. The Notice of Dismissal retained the two week pay provision that had been part of the Notice of Layoff. Subsequent to his termination by FAMU, Respondent has sought other employment, but has been unsuccessful.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Florida Agricultural and Mechanical University enter a final order which: Reinstates Respondent in his previous position as of August 15, 2005, and corrects all personnel records to reflect that he was not discharged for insubordination; Provides him with back pay dating from August 29, 2005, to the date of the final order; Provides him with all commensurate employee benefits dating from August 15, 2005, to the date of the final order; and As of the date of the final order, provides him with all layoff rights and entitlements appropriate to his job position and bargaining unit under the layoff procedures applicable at that date. DONE AND ENTERED this 2nd day of August, 2006, in Tallahassee, Leon County, Florida. S ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of August, 2006.
Findings Of Fact The Petitioner is an attorney. He was admitted to practice law in Florida in 1949. During most of his career, the Petitioner was employed in legal capacities by agencies of the State of Florida. He has served as counsel to the State Road Department, the predecessor of the present Department of Transportation; the Legislative Reference Bureau; and the House of Representatives. While he was in these positions, Petitioner participated in various programs that preceded the present Florida Retirement System (FRS). During 1970, Petitioner left state employment and opened an office in which he engaged in the private practice of law. Among Petitioner's clients were the City of Tallahassee and Tallahassee Memorial Hospital (TMH). Prior to January 1, 1974, Petitioner's representation of TMH was handled in the same manner as that of Petitioner's other clients. Petitioner would bill TMH on an hourly basis for legal work that he performed. Beginning January 1, 1974, Petitioner's relationship with TMH changed and became more in the nature of an employment relationship and less in the nature of a private legal representation. The position of General Counsel of TMH was regularly established. The General Counsel reported directly to the hospital board and provided legal assistance to the hospital. The arrangement was that Petitioner would be paid a monthly "salary" based upon fifty hours of legal representation. The salary was fifty hours times $37.50. This amount was paid directly to the Petitioner in the form of a payroll check which came from the hospital's regular payroll account. The Petitioner maintained his private law practice. The "salary" from the hospital, however, was deposited directly in the Petitioner's personal account and was not deposited in his law firm account. In 1975, the arrangement changed so that Petitioner would perform 65 hours per month of legal representation to the hospital and be compensated at a rate equivalent to 65 times $37.50. While the rate of compensation changed on several occasions, Petitioner's relationship with the hospital remained essentially the same until June, 1978. During this period Petitioner never spent less than the minimum number of hours working for TMH. When more than the minimum number of hours was required, Petitioner would bill the hospital as if it were a regular client of his firm at an hourly rate which was initially $37.50. During this period, TMH was a municipal hospital. Its day-to-day activities were managed by a hospital board and an executive director, but the hospital's operations were controlled by the City Commission of the City of Tallahassee. When Petitioner negotiated with the hospital for changes in his hourly billing rate, or his salary, he negotiated with the City Commission. When he billed for hours over the minimum, the bill was sent to the City Commission. When the Petitioner entered into the new arrangement with TMH on January 1, 1974, he enrolled in the Florida Retirement System by completing the appropriate enrollment forms. The forms were provided to him by TMH which participated in FRS. The forms were submitted to FRS by TMH. Petitioner thereafter negotiated directly with personnel at FRS concerning credits for his military service and for certain work that he had performed with the Legislative Reference Bureau for which he had not previously been credited. Petitioner was enrolled in FRS, and no one at FRS questioned his eligibility. From January 1, 1974 until June 20, 1978, money was deducted from "salary" checks paid the Petitioner by TMH for participation in FRS. FRS accepted these contributions and annually sent Petitioner a statement of his account. Petitioner's credits with prior state retirement plans were accepted by FRS, and as of January 1, 1974, his participation in FRS vested. As General Counsel of TMH, Petitioner was responsible for all of the hospital's legal work. His work included legal representation in the areas of general contract, contract litigation, personnel problems, Title VII Civil Rights Actions, malpractice actions, collection work and Worker's Compensation Claims. Petitioner was not free to reject any part of the hospital's legal work. Petitioner was allowed to maintain his outside law practice, but conflicts of time were to be resolved in favor of the hospital. Petitioner answered directly to the hospital board and his position was parallel to that of the hospital's executive director. Petitioner did not personally perform all of the hospital's legal work. He performed a majority of it, but he did from time to time assign hospital work to other members of his law firm. Whether work would be assigned to another member of his firm was a matter within Petitioner's discretion. While Petitioner testified that he accrued annual leave and sick leave in the manner of any other hospital employee, it does not appear that he ever took any. Petitioner testified that he never worked less than the minimum hours for which he was paid a "salary" in performing the hospital's legal representation. Petitioner performed legal work for the hospital at the hospital, at his private law office, and at various other locations. While the hospital provided him with isolated volumes, he maintained his own law library and utilized his own materials and clerical assistance. The Petitioner treated his relationship with the hospital as if it were a private representation. It appears that the purpose for the change in his relationship with TMH which occurred on January 1, 1974, was to improve Petitioner's retirement status. On October 21, 1975, Petitioner wrote to the City Commission of the City of Tallahassee as follows: "As you know, my compensation as City Attorney is based on a formula by which I receive a salary for the first fifty (50) hours per month of time spent working on City business, with the remainder paid at an hourly rate. In no month have we spent less than 99 hours devoted to City business. I would like your permission to modify our arrangement to reflect the first 65 hours spent as salary and the remainder at an hourly rate. This would in no way affect the amounts being paid by the City to me, but would make a difference in my retirement benefits. Further, since I am not on City retirement, this would in no way affect the actuarial or fiscal soundness of the City's retirement program. Let me reiterate that what I desire is merely a bookkeeping change and will in no way increase the amount that the City is paying for representation. If you have any questions, please advise." This letter related to Petitioner's representation of TMH, and was written on Petitioner's law firm stationery. This letter and other correspondence between Petitioner and the administrator at TMH indicate that Petitioner's relationship was not directly with TMH, but rather was with the City Commission of the City of Tallahassee. It further appears that he viewed his arrangement with TMH as "merely a bookkeeping" arrangement that would favorably impact his retirement benefits. Petitioner's relationship with TMH was in the nature of a private legal representation. While some aspects of the relationship were in the nature of an employment relationship, on balance it appears that that was arranged for the purpose of allowing Petitioner to participate in FRS, rather than for the purpose of changing the relationship. The Division of Retirement conducted an audit of Petitioner's retirement status with FRS. On June 20, 1978, the Division advised Petitioner that he did not meet criteria for membership in FRS, and that he would not be entitled to retirement benefits from FRS based upon the work that he had performed for TMH. The Division has apparently returned contributions that were made on the Petitioner's behalf to the Petitioner or to TMH. In the last paragraph of his June 20 letter, the State Retirement Director stated: "I am sure you are aware there are certain administrative proceedings available to you under Chapter 120, Florida Statutes (1977) if you are dis- satisfied with my decision. I would be most appreciative if you would please notify me promptly if you decide to pursue one of those avenues." Petitioner did not request an administrative hearing until August 11, 1981. He initially decided not to pursue the matter further, and he requested a hearing only after he became convinced that other persons in similar circumstances were allowed to participate in FRS. While Petitioner testified that he heard from several persons whose circumstances were the same as his that they were allowed to participate in FRS, there is no evidence in the record of this matter from which it could be determined that anyone has been treated differently than Petitioner. Prior to 1979, there were no written memoranda or instructions issued by the Division of Retirement as guidelines for determining the eligibility of attorneys or other professionals for enrollment in FRS.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, hereby, RECOMMENDED: That the Division of Retirement enter a final order dismissing the Petition for Formal Proceeding filed by Bryan W. Henry, and denying him reinstatement into the Florida Retirement System for the period January 1, 1974 through June, 1978. RECOMMENDED this 5th day of April, 1982, in Tallahassee, Florida. G. STEVEN PFEIFFER Assistant Director 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 5th day of April, 1982. COPIES FURNISHED: James M. Donohue, Esquire Henry, Buchanan, Mick & English, P.A. Post Office Drawer 1049 Tallahassee, Florida 32302 Stanley M. Danek, Esquire Assistant Division Attorney Division of Retirement Department of Administration 2639 North Monroe Street Suite 207C - Box 81 Tallahassee, Florida 32303
The Issue The issues posed for decision are: 1. Whether the Respondent, by its agent Lawrence McCarthy, unlawfully discharged Jerome Cilhar on June 21, 1976, in violation of Section 447.501(1)(b), of the Act. 2 . Whether the Respondent, by its agent and representative, Lawrence McCarthy, unlawfully interrogated and threatened employees on April 30, and May 4, 1976, within the meaning of Section 447.501(1)(a), of the Act. Based upon my observation of the witnesses and their demeanor while testifying, including the entire record compiled herein) I make the following:
Findings Of Fact The Respondent, City of Gulfport, Florida, is a Florida municipal corporation located in Pinellas County, Florida. During times material to this proceeding, the City Manager was Mr. Harry Perkins (Perkins) who had the ultimate authority over personnel matters including hirings, discharges, levels of manpower, administration of federal employment assistance programs, as well as labor relations. During times material to this proceeding, Mr. Lawrence McCarthy (McCarthy) was employed by Respondent as Director of Public Works. As such, he had operational responsibility for sanitation, water and sewer, streets and parks among others. While McCarthy had the authority to manage his department, the hiring and discharge of employees and the general administration of budgets was handled by Perkins with some input and recommendation by McCarthy. During 1975, Gulfport contracted with Pinellas County, Florida to be a member of a consortium to receive federal supplemental employment assistance funds from the federal government under the Comprehensive Employment and Training Act (CETA). Under this contract, Gulfport was required to follow all federal rules and regulations adopted under the CETA program. In March, 1975, Mr. Jerome Cilhar (Cilhar or the alleged discriminatee) had been unemployed for the requisite period of time to qualify for employment under the Pinellas County CETA program. Cilhar applied for a CETA position with Gulfport and, after the interview, was hired as a sanitation worker in the Public Works Department on March 3, 1975. He (Cilhar) was hired along with a Mr. Johnson who was also hired by Respondent under the CETA prograin as a sanitation worker, On July 17, 1975, an election was conducted by PERC among a comprehensive unit of Respondent's blue and white collar employees. The Petitioner therein did not receive a majority of the valid ballots cast. With these facts, both Perkins and McCarthy were under the impression that no union organizational campaign could begin until after the expiration of a one year period from the date of the election. Respondent operates on a fiscal year basis from October 1, until September 30. For the fiscal year 1975 to 1976, Respondent had budgeted approximately 130 positions for employees. In April and May, 1976, testimony reveals that Perkins became concerned that estimated revenues from services and taxes would not be reached during fiscal year 1975 through 1976 and that expenses would exceed the amount estimated. In this regard, it was noted that Respondent realized an operating deficit of approximately $200,000 for the fiscal year 1975 to 1976. In response to projected deficits, Perkins began personnel cutbacks in May, 1976, since personnel costs represented the largest single budget expenditure. Between May of 1976 and September 30, 1976, Perkins trimmed the City's work force by approximately 20 percent or a net loss of 26 employees. (See Respondent's Exhibit #4). In this regard, the evidence revealed that the City operated the sanitation department without any upward manpower adjustments until February, 1977, when employees were transferred to that area. Mr. Cilhar stated that he voluntarily informed Mr. McCarthy (the Public Works Director) of his desire for a union in late April, 1976. He testified that he and Barney White, a fellow employee in the sanitation department volunteered this information respecting their union activity because White was upset about the lack of pay raises. He testified that Barney White took the initiative in the conversation with McCarthy and in this regard, the evidence revealed that White who, as best as the record reveals, made all of the comments respecting their union activities. Cilhar testified that he noted no change in his relationship with the City and its employees during the six week interim between the date he and White made known their union activities to Respondent's agent (McCarthy) and the date of his discharge on June 21, 1976. Evidence reveals that Respondent made the decision (jointly by Perkins and McCarthy) to retain CETA employee Johnson, whose seniority was equal to Cilhar's, based on the fact that Johnson was more versatile in terms of his employment skills and Respondent was of the opinion that he would be of more assistance in that he could be assigned to a multitude of tasks. Cilhar also advanced the position that Respondent terminated him because he was arranging to schedule a union meeting on the date that he was discharged. The testimony in this regard establishes, on balance, that the Respondent made its decision to terminate Cilhar on Friday, June 18, but could not locate Cilhar because he had left to go home when the final decision was made by Respondent. He was contacted and advised of the termination decision by Respondent early the following Monday, June 21, 1976. He was given an exit interview and advised that his job was being abolished due to the lack of CETA fundings for the next fiscal year. He was also paid for his accrued annual leave from CETA funds. In this regard, Respondent established that this was done to curb employment costs from municipal funds since the payment of Cilhar's leave would have come from municipal funds had the decision been postponed until the end of the fiscal year. It was also noted in this regard that in its effort to realize economy through personnel cuts, Perkins terminated Ryan Larison, a budgeted city employee in the Sanitation Department on June 16, 1976 and thereby realized an economic savings. Pertinent CETA rules and regulations as well as the Respondent's contract with Pinellas County required that the City utilize federal CETA funds only as supplemental to budgeted employment positions. Thus Respondent could not maintain CETA positions instead of budgeted positions under its contract and the regulations. See Respondent's Exhibit #2, Section 205(c)(8). With these facts, I conclude that the Respondent did no more than it was required to do or in fact was compelled to do based on the financial restraints that it was operating under and its regulations with Pinellas County under the CETA program. As Respondent aptly notes, union activity does not insulate an employee from discharge for cause. While there were some uncertainties in this record, and some suspicions automatically arise from the fact that a union adherent was discharged while an employee of equal seniority with, as best as can be determined by the record, little or no union sympathies, these suspicions provide no substitute for record evidence upon which a finding can be made that the Respondent discharged the alleged discriminatee based on his union sympathies or desires as alleged in the complaint. I shall therefore recommend that this allegation be dismissed. THE ALLEGED THREATS AND INTERROGATION The complaints cite two instances in which the Respondent's agent, McCarthy, engaged in unlawful threats and/or interrogation. Witnesses testifying to these remarks during the hearing were Messrs. McCarthy and Rousseau. Both testified that in essence McCarthy warned that "they had a constitutional right to do any damn thing they wanted, but while on City property and on City time, solicitation of union activities was not condoned. Any one I heard would be subject to dismissal". McCarthy testified frankly and openly with respect to his remarks to employees respecting solicitation while on City time and property. Given all of the circumstances of this case and the complete absence of any evidence indicating that the Respondent engaged in any independent acts to unlawfully interfere with, restrain or coerce employees to exercise those rights guaranteed them in Chapter 447, I am of the opinion that the remarks given employees by McCarthy respecting solicitations for unions on City time on City property did not rise to the level of unlawful activity as defined in Chapter 447.501(1)(a), Florida Statutes. Accordingly, I shall recommend that the complaint allegations be dismissed.
Recommendation Based on the foregoing findings of fact and conclusions of law, I hereby recommend that the complaint filed herein be dismissed in its entirety. RECOMMENDED this 3rd day of October, 1977, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Frank E. Hamilton, Jr., Esquire 101 East Kennedy Boulevard Tampa, Florida 33602 William E. Sizemore, Esquire Post Office Box 3324 Tampa, Florida 33601
