The Issue The issue in this case is whether Petitioner as Dean and tenured faculty professor of the University's College of Law should be terminated.
Findings Of Fact Petitioner, Percy Luney, graduated from Harvard Law School in 1974. From 1980 to 1985 he served as the Assistant Dean of the North Carolina Central University School of Law. In 1985 he became a Fulbright Research Scholar at the University of Tokyo in Japan. In the following years, Petitioner served as either a visiting professor or adjunct professor at the University of Oregon, Waseda University, University of Tokyo, Washington University, Doshisha University, Kobe University and Duke University. In 1998, Petitioner became Dean and a professor at North Carolina Central University. From 1998 through 2000, Petitioner served as the president of the National Judicial College. On April 2, 2001, Petitioner was hired as Dean of the newly-created FAMU law school. The position of Dean is an at-will position at FAMU. In May 2001, Petitioner was also hired as a tenured professor of law at the FAMU law school, but did not perform any faculty duties. Unless there are extraordinary circumstances, such dual employment is required by American Bar Association (ABA) law school accreditation standard 205(c). A system of tenure and policy with respect to academic freedom are also required by ABA standard 405(b). The purpose of the two requirements is to enable an institution to attract the best qualified legal educators to serve as deans by providing job security to the person selected. A secondary purpose of the two requirements is to insulate a dean from the more political aspects of being dean and being terminated for making legitimate, but unpopular decisions. Importantly, the ABA accreditation standards do not set forth any requirements regarding the terms or application of an institution’s system of tenure, but defers to that institution’s tenure system and the legal precedents relative to the hiring and termination of the institution’s employees. On September 19, 2005, Petitioner was terminated from his position as Dean and tenured faculty professor of the FAMU College of Law. The termination was premised upon Petitioner's employment and allegedly fraudulent or negligent supervision of a law school employee, Shirley A. Cunningham, Jr. Prior to this case, Petitioner’s integrity and honesty have never been questioned. Once employed at FAMU, the majority of Petitioner's efforts at the new law school focused on choosing a location for the school; obtaining, building or remodeling a facility to house the school; and, hiring a faculty for the law school. Additionally, one of Petitioner’s primary objectives was to achieve ABA provisional accreditation. Such accreditation is important for the acceptance of the law school’s diploma in the community and indicates that the law school’s graduates are appropriately educated in the law. ABA accreditation is also important because graduating from an accredited law school is required to take the Florida bar exam, without which a person cannot become a licensed attorney in Florida. Petitioner's duties as Dean also included short and long-range planning, demonstrating academic leadership, developing curricula, budgeting, managing of personnel matters, representing the new College of Law inside and outside the University and promoting its growth and development into an institution worthy of state, national, and international respect. As Dean of the FAMU College of Law, Petitioner reported directly to the Provost and Vice President for Academic Affairs. On October 17, 2001, Petitioner received by facsimile from FAMU president, Dr. Frederick Humphries, a copy of a letter to Dr. Humphries dated October 11, 2001, from John D. Price, an accountant, on behalf of Shirley A. Cunningham, Jr. The letter confirmed Mr. Cunningham's commitment to donating $1,000,000.00 toward establishing an endowed professorship at the FAMU College of Law. This was the first time Petitioner became aware of Mr. Cunningham. President Humphries requested that Petitioner write a letter to Mr. Cunningham thanking him for the gift. At the time, Mr. Cunningham was the managing partner in his law practice located in Lexington, Kentucky. He spent approximately 35 percent of his time with his firm in litigation. His home address was Georgetown, Kentucky, although he also maintained a home in Parkland, Florida. The evidence did not demonstrate which home Mr. Cunningham declared as his legal residence. The last paragraph of Mr. Price's letter states: Mr. Cunningham anticipates a three year contract to the endowed chair and is looking forward to the opportunity to discuss with the applicable persons in your personnel department, the employee agreement, including the salary and other fringe benefits available to the professors at your university. Petitioner thought this statement regarding employment of Mr. Cunningham was unusual, but at the time, did not pursue the issue further. Sometime later Petitioner spoke with Mr. Cunningham by phone about the gift and potential for future employment. After that conversation, Petitioner responded to Mr. Price by letter dated October 29, 2001, suggesting that Mr. Cunningham consider changing the form of his gift from an endowed chair to dividing the gift into an endowed professorship, an endowed scholar’s fund and the construction of the law school building. Petitioner felt these types of gifts would be of more immediate benefit to a new and developing law school. The letter also reflected that Mr. Cunningham and Petitioner discussed Mr. Cunningham’s anticipated employment with the law school. Although the terms of employment were not discussed in detail, the letter reflects that Petitioner anticipated Mr. Cunningham’s eventually becoming a member of the law school faculty in its second year of operation when courses that Mr. Cunningham was interested in teaching would be offered. Until then, Mr. Cunningham would have an office available to him at the law school so that he could assist Petitioner with curriculum development and fundraising. Around December 17, 2001, Petitioner received an email from Mr. Cunningham informing him that he had signed the gift agreement the University had prepared. The gift agreement signed by both Mr. Cunningham and Respondent in December 2001 and January 2002, respectively, established the Shirley A. Cunningham Endowed Chair at the college of law. The name for the chair appears to have been developed over time by Mr. Cunningham. The gift agreement does not address any anticipated employment of Mr. Cunningham. However, the evidence was clear that such employment was part of the negotiations for the eventual gift. The gift was eventually funded on January 7, 2002, by a wire transfer of $1,000,000.00 from Mr. Cunningham to the FAMU Foundation to establish an Eminent Scholar Chair titled Shirley A. Cunningham, Jr., Distinguished Chair of Law. Throughout 2002 and into 2003, Petitioner and Mr. Cunningham had a few discussions about his joining the faculty of the law school to teach. However, Mr. Cunningham was unwilling to commit to being present at the law school on at least a weekly basis. Because Petitioner believed Mr. Cunningham's regular presence as a teaching faculty member was required to ensure that the new law school complied with the accreditation requirements of the American Bar Association, Petitioner made it clear to Mr. Cunningham that he could not join the faculty to teach without being present on a regular basis. The employment issue appeared to come to a head when Petitioner was summoned to a meeting with a Board of Trustees member William Jennings, former President's Executive Assistant Jim Davis, former FAMU President Fred Gainous, and Mr. Cunningham in June, 2003 at the Orlando Airport. Mr. Jennings arranged the meeting because he had received information that Mr. Cunningham was upset due to the fact that he could not arrange to meet with or talk to Petitioner or President Gainous. Petitioner arrived at the meeting not knowing who was going to be at the meeting or its purpose. When he arrived, a discussion ensued regarding Mr. Cunningham's employment at the law school. Petitioner explained that Mr. Cunningham did not want to teach because he could not be there on a regular basis and, if he could not teach, he could not be part of the faculty due to the potential problems with ABA accreditation. Petitioner stated that under no circumstances would he bring Mr. Cunningham on the faculty to teach if he could not commit to being present on a regular basis. The discussion then turned to whether there was some non-teaching capacity in which Mr. Cunningham could be employed with the law school. One of the proposals was that Mr. Cunningham serve in an administrative capacity as an assistant to the Dean in a classification titled “Associate In.” This position would not conflict with the ABA accreditation standards because, while it can be a teaching position, it can also be a non-teaching position. The discussion ended with agreement that Mr. Cunningham would furnish Petitioner with a list of suggested duties. President Gainous instructed Petitioner to negotiate the details of an employment relationship with Mr. Cunningham. Mr. Cunningham’s employment with the law school was presented as more of a fait accompli to Petitioner, and he did not feel he had discretion not to employ Mr. Cunningham in some capacity. Mr. Jennings denies that Mr. Cunningham's employment was discussed during this meeting or that he had any knowledge of Mr. Cunningham being employed until after the payroll audit in April 2005. However, Mr. Jennings was in and out of the meeting and did not hear all of the discussions held during the meeting. Many of the general topics Mr. Jennings did recall could easily have related to the employment of Mr. Cunningham. Mr. Jennings’ denial that Mr. Cunningham’s employment was not discussed is not given any weight in this regard. There was never any explicit instruction or expectation that Mr. Cunningham would be paid but not expected to work or earn his salary. Shortly after the meeting at the airport, Mr. Cunningham faxed Petitioner a memorandum dated June 26, 2003, suggesting job duties that he could perform for the law school. Mr. Cunningham referred to himself in the memorandum as "Distinguished Chair of Law" and stated the subject of the memo as "Chair Responsibilities." His suggested job duties were: Explore the developments/establishment of articulation agreements between selected Liberal Arts institutions and the FAMU Law School. Work toward the development and implementation of a Monthly Brown Bag Lecture Series. Assist with student recruitments. Exploration of a concentration of Agricultural Law for the JD and LLM at the FAMU Law School. Assist with the identification of internships for law students. Work toward the development of Barrister Hall (or the Shirley A. Cunningham, Jr.) Summer Academy that would provide intenstive enrichment opportunities for prospective and current law students. Petitioner was not satisfied with Mr. Cunningham's suggested duties and on July 11, 2003, sent him a memorandum proposing specific duties acceptable to him as instructed by President Gainous. Those duties were the following: Work toward the development and implementation of a monthly lecture series on the legal profession. Work toward the development and implementation of a bar examination preparation program. Assist in the identification of summer internships for our law students. Work toward the development of the Shirley Allen Cunningham, Jr. academy providing enrichment opportunities for prospective law students. Assist the dean with fundraising to support student scholarships and academic programs. Work toward the development of the center of agricultural law. Petitioner used the same title (Distinguished Chair of Law) and subject (Chair Responsibilities) used by Mr. Cunningham. The memorandum suggested the same annual salary of $100,000.00 and three-year term that had been requested by Mr. Cunningham prior to the gift being made by Mr. Cunningham. The July 10 memorandum was faxed to President Gainous and Jim Davis to keep them updated on the negotiations and give them the opportunity to respond to him if he was proposing anything they did not agree with. Petitioner never heard directly back from either regarding Mr. Cunningham’s employment. At the time, Petitioner contemplated that fundraising would be a major responsibility of Mr. Cunningham’s duties and thus would justify his salary over the course of the expected three-year period. At some point, Petitioner’s assistant received a call from Jim Davis, Executive Assistant to the President of FAMU, that indicated Mr. Cunningham should be “put on line,” or hired. The message was passed along to Petitioner. Within about a week, Petitioner instructed his assistant to prepare the paperwork necessary to employ Mr. Cunningham. Petitioner’s assistant was given the July 10 memorandum containing the list of Mr. Cunningham’s duties and, based on her experience, knew that he was being placed in a non-teaching, faculty position with administrative duties. Petitioner’s assistant actually selected the exact vacant position into which Mr. Cunningham would be placed from a file of vacant and authorized positions that she maintained. The position she selected was Associate In, Class Code 9120. The possible duties for the occupant of this position were: Responsible to a Chair or other appropriate administrator of a State University. Responsible for assisting professional staff with teaching, researching, and/or service activities or assisting in professional academic responsibilities which are directly related or supplemental to the instructional/academic mission of the department/unit. Although technically a faculty position because it is designated as a faculty line in the budget, this position is normally considered an administrative position, much like Petitioner’s tenured faculty position. Petitioner’s assistant followed FAMU’s checklist for hiring. The checklist requires that certain documents be completed for submission to the University’s personnel office. The main documents on the checklist are the form for recommendation for faculty employment and the form for assignment of responsibilities. These two documents are prepared for Petitioner’s signature. Other documents on the checklist support these two forms and include an employment application, three letters of recommendation, official transcript and resume. Three forms on the checklist are not always required and, at the time were not prepared as part of Mr. Cunningham’s employment package because Petitioner’s assistant believed that FAMU policy did not require advertising of a vacancy when it was a visiting position, such as the position here. These forms are the position vacancy form, approval to advertise form and years credited toward tenure form. Petitioner’s assistant began preparing and assembling the documents on the checklist. In a letter signed by Petitioner and dated July 14, 2003, she forwarded the forms, required to be filled out by Mr. Cunningham to him, and requested he provide three letters of recommendation and a resume. Mr. Cunningham complied and filled out the employment application around July 28, 2003. The application lists his address as Parkland, Florida, in Broward County. The home phone number reflects an area code consistent with a Broward County address. The business phone number reflects an area code for the Lexington, Kentucky area. The resume attached to the application reflects an address in Georgetown, Kentucky, and phone numbers consistent with a Kentucky address. The resume address differs from the business address and phone numbers listed in the resume. The business address and phone numbers are also located in Kentucky. Mr. Cunningham returned these documents to Petitioner’s assistant around the end of July. During the time that Petitioner’s assistant was processing the hiring paperwork for Mr. Cunningham, but before she sent the initial package to Tallahassee, she received repeated phone calls from Herbert Bailey, inquiring about the status of the hiring documents. Mr. Bailey was the FAMU employee in the Provost’s office she normally dealt with on personnel matters. Mr. Bailey expressed to her a sense of urgency in getting those documents so Mr. Cunningham could be placed on the payroll. Around August 12 or 14, 2003, once all of the checklist documents were assembled by her, Petitioner’s assistant forwarded them to Larry Robinson at the FAMU Provost’s office for further processing. The Recommendation For Faculty Employment Form and Assignment of Responsibility Form reflect that Mr. Cunningham’s duties would be 10 percent public service and 90 percent administrative with a full-time equivalent (FTE) of one. In short, regardless of the hours actually worked, Mr. Cunningham’s position was considered to be equivalent to full-time employment. The recommendation for employment letters signed by Petitioner reflect the belief that Mr. Cunningham would be a magnet for fundraising and recruitment of students. The effective date of Mr. Cunningham’s employment was set as August 8, 2003, and ran for one year. Given this date, it is clear the official employment paperwork was catching up with events that had already transpired. Such a practice was not unusual. After she had submitted the hiring package for Mr. Cunningham to Tallahassee, Petitioner’s assistant received a call from Mr. Bailey in the Provost's office in Tallahassee, requesting that she send him a vacancy notice and request to advertise Cunningham's position, even though there was no requirement to advertise a visiting appointment. She complied with this request, had Petitioner sign the forms on September 3, 2003, and forwarded those forms to Mr. Bailey. The record was not clear if the position was ever advertised or what Mr. Bailey did with those forms. A contract or offer of employment to Mr. Cunningham was signed by Larry Robinson on September 5, 2003, and forwarded to Mr. Cunningham. Mr. Cunningham signed the document on September 29, 2003 and returned it to the University. In Mr. Cunningham's employment file there are documents identifying him as a Distinguished Chair, a faculty member and an "Associate In Visiting Professor." Many of these references were generated prior to the actual employment of Mr. Cunningham and were simply short-hand references to discuss possible employment in the future, and, to some extent, were originally self-styled references by Mr. Cunningham that were perpetuated in correspondence. However, when Mr. Cunningham was formally hired, he was in fact hired on a visiting appointment throughout his employment with no fixed hours established for that appointment. The evidence did not demonstrate that there was any fraud intended by Petitioner in the preparation of any employment documents or in the employment of Mr. Cunningham. Mr. Cunningham began receiving a salary from FAMU. Law school employee checks were mailed to the law school for distribution to the relevant employees. Mr. Cunningham’s check was handled in the same manner. However, because he was not at the law school, Petitioner’s assistant forwarded his check to him in Kentucky. The evidence did not demonstrate that the method of handling Mr. Cunningham’s check was intended to hide the fact that Mr. Cunningham was not physically present at the law school. Likewise, no intent to defraud was shown by these actions. Curiously, Petitioner did not inform Omar Saleem, Associate Dean of Academic Affairs of the Law School, of Mr. Cunningham's duties or employment. The lack of information appears to have been due to the fact that Mr. Cunningham’s employment was generated from the FAMU president’s and Provost’s offices. Consequently, Mr. Saleem, as the Dean responsible for faculty appointments at the College of Law, was unaware that Mr. Cunningham had been employed. However, Petitioner never attempted to keep Mr. Cunningham's status as an employee of the law school secret and, in fact, he announced his status to the faculty in 2003, including Mr. Cunningham in the law school self-study as an Assistant to the Dean, not a member of the teaching faculty. On page 23 of the self-study that was distributed to all members of the law school faculty, Mr. Cunningham is referred to as follows: Shirley Allen Cunningham, Jr., our million dollar donor, has agreed to work with the College of Law as a Special Assistant to the Dean. He will assist the Dean with fundraising to support student scholarships and academic programs, particularly the development of the Center on Agricultural Law; identification of summer internship opportunities; a monthly lecture series; and development of a bar examination preparation program. Mr. Cunningham is not listed as a member of the teaching faculty. As indicated in an earlier memorandum, while employed at the College of Law, Mr. Cunningham was responsible for the following duties: working towards 'the development and implementation of a monthly lecture series on the legal profession’; working towards 'the development and implementation of a bar examination preparation program’; assisting 'in the identification of summer internships for the [the FAMU College of Law] law students’; working towards 'the development of the Shirley Allen Cunningham, Jr., Summer Academy, providing enrichment opportunities for prospective law students’; assisting 'the Dean with fundraising to support scholarships and academic programs’; and, working towards 'the development of the Center of Agricultural Law.' At best, these duties are vague and subject to varying degrees of interpretation as to what actions fulfill those duties. There was no evidence that a certain number of hours of activities related to those duties were required under Mr. Cunningham’s contract. Neither Petitioner nor his superiors required Mr. Cunningham to actually be present at the law school or maintain any office hours while he was employed. His performance consisted primarily of telephone conferences with Petitioner. The evidence did not demonstrate how many or how often these conferences occurred. Petitioner believes that Mr. Cunningham was performing his assigned duties to some extent because of his electronic contacts with him. He did not directly supervise him since he was not present at the law school. In fact, other than his electronic contacts with Mr. Cunningham, Petitioner did not concern himself with Mr. Cunningham’s performance, but believed he was performing some of his duties. Petitioner’s attention was mostly focused on other activities that were more important to the law school than supervising Mr. Cunningham’s activities under his contract. Petitioner also understood that Mr. Cunningham's job was to be evaluated not on a daily or weekly basis, but over a three-year period. Based on Petitioner’s understanding of the duties of Mr. Cunningham, Petitioner certified bi-weekly payroll forms reflecting 80 contract hours and an FTE of 1. Bi-weekly payroll certification forms are generated by FAMU’s main personnel office in Tallahassee and sent to the law school. These forms automatically list every full-time employee as having 80 contract hours, regardless of the requirements of that employee’s contract. These forms are internal payroll processing forms and are intended to cover many types of employees at FAMU. The forms do not necessarily reflect the contract terms of any particular employee and especially do not reflect the contract terms of employees who do not have minimum or set hours and hold FTE positions. The forms are required to be certified in order for an employee to receive his or her paycheck. The certification appears to relate to both fixed- hour employees and contract non-fixed hour employees. For non- fixed hour employees, like Mr. Cunningham, the certification is for the effort expended and based on Petitioner's belief that Mr. Cunningham was performing some work under that contract. Because professional employees such as Mr. Cunningham and other faculty and administrators of the law school are not required to actually work a precise number of hours per pay period, the certification of FAMU's bi-weekly payroll certification document that such employees have worked 80 hours in the bi-weekly pay period does not represent, and is not expected to represent, that such employees have worked precisely that number of hours. Rather, it is a certification that, to the certifier's knowledge, these professional employees are performing the duties they are assigned. Therefore, Petitioner's certification of Mr. Cunningham's work hours on these forms was not fraudulent or deceptive because he believed Mr. Cunningham was performing some work as contemplated by his employment arrangement, and he had no evidence that justified a refusal to approve Mr. Cunningham’s being paid. Indeed, in 2003 after Mr. Cunningham was employed, Petitioner’s focus was not on Mr. Cunningham’s activities. Petitioner’s highest priority was preparation of the self-study program and getting the law school ready for the first accreditation inspection by the ABA which was set for November 2003. The inspection was required in order for the law school to receive provisional accreditation, without which the entering class of law school students who were now in their third year and ready to graduate could not take the Florida bar examination. After the ABA inspection and through the Spring of 2004, Petitioner led negotiations with the ABA and made several appearances before ABA committees regarding provisional accreditation. Provisional accreditation was finally received by the law school in the summer of 2004. Additionally, after the ABA inspection in November, a significant portion of Petitioner’s time was devoted to ensuring that a clinical program required of all third-year students was in place by the fall of 2004 so that the first group of students to graduate from the FAMU law school could complete their coursework and graduate. The ABA also required that the program be in place by Fall, 2004. During 2003 and 2004, Petitioner, because he was in Orlando, was also the person that building contractors, who were constructing the new law school, would come to about problems with construction of the school. The building was scheduled to be completed and occupied by the law school by 2005. Petitioner often functioned as the liaison between the contractors and FAMU personnel in Tallahassee. Unfortunately, in July of 2004, Petitioner’s father, whom he was extremely close to and testified emotionally about at the formal hearing, became seriously ill. His father eventually died in October 2004. Dealing with his father’s illness and death both emotionally and legally, significantly interfered with Petitioner’s performance of his duties through January, 2005. In fact, Petitioner failed to perform required evaluations of employees for the 2004 academic year. Likewise, he did not materially supervise Mr. Cunningham. Petitioner admits that in the 20 months of employment, Mr. Cunningham failed to accomplish any of the goals set forth in the July memorandum referenced above. Mr. Cunningham did not generate any fundraising monies for the College of Law, did not identify any summer internships for FAMU law students, did not conduct any monthly lectures on the legal profession, never developed the Shirley Allen Cunningham, Jr., Summer Academy, never developed the Center of Agricultural Law and never developed or implemented a bar examination preparation program at the College of Law. These matters were discussed between Petitioner and Mr. Cunningham. However, no tangible results were forthcoming from those discussions and in the final analysis, did not result in any material value to FAMU. In January 2005, FAMU’s administration and Petitioner’s superiors changed. President Gainous left the University. Dr. Castell Bryant became the interim president of FAMU. She did not have any knowledge regarding the unique circumstances of Mr. Cunningham’s employment. In light of the University's existing fiscal condition, Dr. Bryant instituted a University-wide payroll audit on April 1, 2005. As part of the audit, every University employee (including President Bryant) was required to physically appear and execute an affidavit attesting to the performance of his or her duties. The audit was designed, in part, to uncover situations where an individual was being paid but not performing services for that pay. An email was sent from Dr. Bryant’s office to all University employees, including Mr. Cunningham, setting forth the requirements of the audit. Petitioner, also, contacted Mr. Cunningham and requested that he come to the College of Law campus in Orlando to comply with the audit. Mr. Cunningham did come to the College of Law and signed an affidavit attesting that he was performing his duties. Petitioner never discussed the particulars of Mr. Cunningham’s employment with Dr. Bryant prior to or after the audit. While Mr. Cunningham was at the law school for the payroll audit on April 1, 2005, he and Petitioner set up a meeting for April 21, 2005, to discuss implementation of some of his job duties that had been delayed because they could not be accomplished until the law school moved into its new building in Fall 2005. Petitioner made an entry on his personal calendar for April 21 at 2:00 pm. Petitioner did not tell his assistant about the meeting. Therefore, the meeting did not appear on Petitioner’s master calendar, maintained by his assistant. Subsequent to the audit, the University’s employment of Mr. Cunningham was raised when Dr. Bryant received an anonymous Whistleblower complaint regarding Mr. Cunningham. The complaint stated: As part of your payroll audit, you may want to take a look at the law school records involving Shirley Cunningham. According to public records for the last two years he has been on a salary of $100,000 per year as a faculty member but has never taught a course, been to a faculty meeting or occupied an office at the law school. In addition, an anonymous Whistleblower complaint was also filed with the State of Florida, Department of Financial Services, regarding Mr. Cunningham. Consequently, on April 18, 2005, Dr. Bryant requested that the Whistleblower allegations be investigated by the FAMU Inspector General, Michael Brown. After conducting some preliminary research, Mr. Brown discovered some discrepancies with Mr. Cunningham's employment documentation. Mr. Brown then telephoned Petitioner to arrange a meeting to clarify Mr. Cunningham's employment information. Petitioner could not meet with Mr. Brown because he was traveling back to Orlando from Tallahassee. Mr. Brown immediately reported his findings to Dr. Bryant. Coincidentally, on April 21, 2005, the following day, Mr. Brown traveled to the law school in Orlando for an unannounced visit to the school to further his investigation of the complaint. Mr. Brown hoped to meet with Petitioner. This was also the same day that Mr. Cunningham was to meet with Petitioner at the law school. Mr. Brown arrived at the law school at 8:55 a.m. He met with Petitioner’s assistant. She informed Mr. Brown that Petitioner was at a meeting outside the law school but she thought that he would return to the office in 30 minutes. Petitioner’s assistant only intended her reference to 30 minutes to be an estimate. She did not know that Petitioner would return in 30 minutes, but only based her estimate on Petitioner’s usual pattern. Unfortunately, Petitioner’s meeting lasted all morning and into early afternoon. It was in an area where cell phone communication was limited to outside the building at which the meeting was being held. At some point, Petitioner’s assistant was able to talk to Petitioner on his cell phone and informed him that Mr. Brown was at the law school and that he had requested to see a list of documents. Petitioner instructed his assistant to provide Mr. Brown with anything that he asked for. On multiple occasions throughout the morning and early afternoon, Mr. Brown continued to inquire about Petitioner’s arrival, and was informed each time that his arrival would be soon. Petitioner never directly contacted Mr. Brown and Mr. Brown never directly contacted Petitioner. While waiting for Petitioner, Mr. Brown was busy going through the documents he had requested be provided to him. At about 12:15 p.m. Petitioner, while on lunch break, spoke with Associate Dean Saleem by phone and informed him that Mr. Cunningham would be at the law school for a meeting in about 30 minutes. The meeting had been scheduled by Petitioner earlier in the week. Dr. Saleem informed Mr. Brown of this communication. Mr. Brown, accompanied by the Director of Security, Bruce Henson, immediately went to Mr. Cunningham's office and utilized the master security key to enter the office. Upon entering the office, Mr. Brown found Mr. Cunningham sitting behind the desk with a rolling travel bag. Mr. Cunningham stood up, grabbed his coat, greeted Mr. Brown, and exited the office. Mr. Brown observed that the office appeared to have been vacant and not used for some time because the desk and bookshelves were covered with a thick layer of dust and the computer had not been used. After his meeting, Petitioner returned to the law school and met with Mr. Brown around 1:00 or 1:30 pm. Since Mr. Cunningham had left, Petitioner was not able to meet with him. In light of his inability to meet with Petitioner and the suspicious arrival and encounter with Mr. Cunningham, Mr. Brown concluded that Petitioner, as well as others at the law school, were attempting to avoid him and impede his investigation. Mr. Brown believed that the delay he felt he experienced was a ploy to allow Mr. Cunningham time to travel to the law school. Mr. Brown communicated his conclusion of being "stalled" to the FAMU General Counsel, Elizabeth McBride and eventually to Dr. Bryant. However, other than the coincidence of Mr. Cunningham’s presence at the law school, there was no evidence that Mr. Brown was thwarted or otherwise stalled in his investigation. He was timely provided everything he asked for and was given access to the places he requested to access. He apparently was occupied with his investigation the entire time he was there. It is not credible that such an inept ploy to place Mr. Cunningham at the law school was perpetrated through some conspiracy by the staff at the law school or Petitioner. In fact, given the circumstances of his employment, Mr. Cunningham was not required to be present at the law school. After receiving advice from the Department of Financial Services Investigators, Mr. Brown confiscated the computers of Mr. Cunningham, Petitioner’s assistant and Petitioner, along with certain documents. The evidence was subsequently turned over to both state and federal prosecutors for related criminal investigations. Mr. Cunningham is represented by Stephen Dobson, Esquire, and is the subject of a criminal investigation in the United States District Court for the Northern District of Florida. As a result, Mr. Brown's investigation of Mr. Cunningham has been suspended pending the outcome of the criminal matter. Because of the criminal investigation, Mr. Cunningham, through his attorney, did not testify at his scheduled deposition, or at the hearing, in this case, based on his Fifth Amendment privilege. Prior to returning to Tallahassee, Mr. Brown interviewed Petitioner regarding Mr. Cunningham. In response to Mr. Brown's request for any information substantiating Mr. Cunningham's employment, Petitioner provided Mr. Brown with a packet that he had prepared. The packet included a memorandum and attachments. The memorandum was entitled "Job Responsibilities of Shirley Cunningham." In the poorly worded and somewhat vague memorandum, Petitioner discusses a bar preparation course that was implemented, a summer conditional program that was "getting off the ground th[a]t year," and several fundraising commitments that the law school received that year. Throughout the memorandum, Petitioner refers to the "we" as being responsible for these efforts. Mr. Brown understood Petitioner's memorandum to be referencing collaborative efforts between he and Mr. Cunningham. The use of the word “we” is just as easily understood to be referring to the law school. In reality, Mr. Cunningham was not directly responsible for any of the efforts referred to in Petitioner’s memorandum, but had been involved with limited discussions with Petitioner regarding some of the items in that memorandum. The language of the memorandum appears to be Petitioner’s attempt to, not so much cover-up Mr. Cunningham’s employment and performance as, to, through vague use of language, dodge the impending storm he saw coming at him over that employment. Petitioner, also orally informed Mr. Brown that he had no documentation showing the activities of Mr. Cunningham and that Mr. Cunningham was not expected to be present at the law school in order to perform his duties. Petitioner also told Mr. Brown that FAMU’s administration had been aware of the conditions of Mr. Cunningham’s employment. Upon returning to Tallahassee, Mr. Brown met with Dr. Bryant and General Counsel McBride and discussed his investigation in more detail. Mr. Brown also provided them with a copy of the materials Petitioner gave him referencing Mr. Cunningham's job responsibilities. Based on his investigation, Mr. Brown concluded that Mr. Cunningham had not performed any services for the University to justify his $100,000 per year salary. Further, Mr. Brown felt that Petitioner had engaged in deception by executing Mr. Cunningham's payroll certifications and mailing his paychecks to Kentucky. In addition, Mr. Brown concluded that Mr. Cunningham was not responsible for any of the efforts delineated in Petitioner’s memorandum and that Petitioner had engaged in fraud or was, at a minimum, complicit in the fraud of Mr. Cunningham. Mr. Brown relayed these conclusions to Dr. Bryant and Ms. McBride, and further informed them that there was no policy at FAMU that would allow for Mr. Cunningham's telecommuting. However, the evidence did not establish that there was a policy against such telecommuting either. The following day, April 22, 2005, and for the first time since Mr. Cunningham's employment, Petitioner refused to sign the Payroll Certification Form and indicated that Dr. Bryant would have to approve Mr. Cunningham's work. Petitioner refused to certify the form because he knew the matter was being investigated by the University and the authenticity of Mr. Cunningham’s performance was in question. He also knew the current administration no longer sanctioned the conditions of Mr. Cunningham’s employment. The Certification Form was forwarded to Dr. Bryant. Dr. Bryant advised Petitioner that, as Dean of Law School, it was his responsibility, not hers, to ensure that the payroll certifications were accurate and sent the form back to Petitioner. Subsequently, Dr. Bryant contacted Petitioner and requested information about Mr. Cunningham's performance at the law school. Apart from the memorandum she received from Mr. Brown, Petitioner never provided her any additional documentation related to Mr. Cunningham. Because Mr. Cunningham had been paid from State funds but had not performed any verifiable work, Dr. Bryant considered Mr. Cunningham's employment fraudulent and that Petitioner had participated in that fraud or been grossly incompetent in his supervision of Mr. Cunningham and certification of the payroll records based on that supervision. Importantly, the evidence at the hearing did not demonstrate that Mr. Cunningham’s contract was unlawful, but that his performance was not verified by Petitioner. The lack of evidence in that regard was due to the lack of testimony from Mr. Cunningham, who did not testify at the hearing. On June 27, 2005, Petitioner was placed on administrative leave with pay and provided an opportunity to address the allegations of misconduct and/or incompetence against him. Dr. Bryant placed Petitioner on administrative leave because she believed it to be in the best interests of the University, law school and students. She did not want the new law school students to believe that the University in any way condoned not abiding by the law. Petitioner denied any fraud on his part but did not offer any evidence that would refute the allegations that he knowingly permitted Mr. Cunningham to be employed at the University while not performing any work. Accordingly, Petitioner was terminated by Dr. Bryant by letter dated September 19, 2005. Dr. Bryant reached this decision based upon the documentation that had been provided to her, the interviews of Petitioner and her consultations with General Counsel McBride, Inspector General Brown, the FAMU Human Resource Director and Provost Larry Robinson. Dr. Bryant did not consider terminating Petitioner as Dean, but allowing him to continue as a professor, because she did not believe it was in the best interest of the law school or its students. Prior to terminating Petitioner, however, Dr. Bryant met with Petitioner in Orlando and provided him an opportunity to resign. Petitioner declined to resign because he did not believe that he had committed any fraudulent acts, but admitted he had been negligent in supervising Mr. Cunningham. Petitioner’s termination letter, dated September 19, 2005, provides the reasons for his termination and states, in part: This action is being taken due to your engaging in conduct which adversely affected the functioning of the University and failing to adhere to established University obligations appropriate to your appointment. Specifically, you knew or should have known: The duties and responsibilities designated for Shirley Cunningham, Jr. (Cunningham), in your memorandum dated July 10, 2003, failed to have any measurable standards. There is a lack of supporting documentation demonstrating Cunningham’s involvement in or “working towards” any duties and responsibilities outlined in the letter at the College of Law. That Cunningham failed to present and failed to perform job duties and responsibilities as a full-time employee at the College of Law. Your certification of payroll documents for Cunningham, to receive pay warrants, or payroll checks, from the University during the time period August, 2003 through April, 2005 was improper. Pay warrants or payroll checks were mailed from your office at the College of Law to Cunningham in the State of Kentucky, even though Cunningham failed to present or perform any documented duties and responsibilities to justify the receipt of a warrant or check for any pay period. The failure of your staff to provide the University’s Inspector General with immediate access to the office space designated for the documents relative to the employment of Cunningham delayed and hampered the Inspector General’s investigation of the complaint regarding Cunningham. In this case the evidence does not demonstrate that Petitioner had an intent to defraud the University. After all, Petitioner’s then current superiors were aware of the terms of Mr. Cunningham’s employment, that he was in a visiting status and that he would continue his law practice in Kentucky. The evidence does demonstrate that Petitioner was grossly negligent in his poor supervision of Mr. Cunningham and his willingness to accept the discussions he had with Mr. Cunningham as evidence that Mr. Cunningham was fulfilling his contract with the University. By any terms, the contract with Mr. Cunningham was a bad contract because of its lack of specificity especially since the contract was developed by an attorney and Dean who was responsible for protecting the University. It ultimately was not in the best interest of the University and should have been questioned by Petitioner earlier than it was. However, the conduct for which Petitioner was terminated arose out of his duties as Dean, and not as a professor, since Petitioner never performed any professorial duties at FAMU. On the other hand, Petitioner’s year and a-half-long negligence calls into question his competence and judgment as a professor who might have to supervise and instruct students in the law, as well as protect the University’s interests in any professorial capacity. Admittedly, Petitioner had more important matters than Mr. Cunningham, related to the law school, that occupied his time. Moreover, the death of his father certainly affected the performance of his supervisory functions in 2004 and January 2005. By February or March 2005, Mr. Cunningham’s employment should have raised red flags with any administrator, like Petitioner, responsible for protecting the interests of the law school and the University. Given these facts, Petitioner’s termination should be upheld.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board issue a final order terminating Respondent's employment. DONE AND ENTERED this 12th day of July, 2006, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER 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 12th day of July, 2006. COPIES FURNISHED: Thomas Brooks, Esquire Meyer & Brooks, P.A. 2544 Blairstone Pines Drive Post Office Box 1547 Tallahassee, Florida 32302 Robert L. Norton, Esquire Allen, Norton & Blue, P.A. 121 Majorca, Suite 300 Coral Gables, Florida 33134 Robert E. Larkin, III, Esquire Allen, Norton & Blue, P.A. 906 North Monroe Street Tallahassee, Florida 32303 Elizabeth T. McBride, Esquire Florida A & M University Office of the General Counsel 300 Lee Hall Tallahassee, Florida 32307-3100 Dr. Castell V. Bryant, Interim President Florida A & M University 400 Lee Hall Tallahassee, Florida 32307-3100
The Issue The issue is whether, under the Florida Retirement System, Petitioner occupied a regularly established position while working as a pool respiratory therapy technician at Jackson Memorial Hospital for 12 years.
Findings Of Fact Petitioner is a certified respiratory therapy technician. Her first job as a respiratory therapy technician was at Mercy Hospital in Miami. Later, she worked at Coral Gables Hospital in a similar capacity. In May or June 1991, Petitioner began working at Jackson Memorial Hospital. She and Jackson Memorial Hospital executed a Respiratory Pool Contract for Therapists and Technicians. The contract referred to Petitioner as a "per-diem employee." The term of the contract was from May 28, 1991, through October 31, 1991, subject to renewal, but the parties never renewed the contract in writing. After listing the benefits in the section addressing compensation, the contract provided: "[Jackson Memorial Hospital] participates in the State Retirement System after four months of continuous employment." The reference to the "State Retirement System" is to the Florida Retirement System (FRS), in which Jackson Memorial Hospital participated at all times material to this case. The contract required Petitioner to work at least two shifts per pay period and to notify her supervisor by the tenth day of the month as to the days and hours that she will be available to work during the following month. The contract stated that either party may cancel a scheduled work shift, but only on at least two hours' notice to the other party. The contract provided that Jackson Memorial Hospital may terminate the contract without case on 14 days' notice. The contract provided that Jackson Memorial Hospital "shall exercise exclusive control and/or direction over the method and matter by which [Petitioner] performs [her] professional services and functions to the extent permitted by law." The contract subjected Petitioner to the supervision of her supervisor and required that she conform to all rules and policies of Jackson Memorial Hospital, including its "Standards of Excellence," dress code, and personnel policies. During her employment with Jackson Memorial Hospital, Petitioner has received training, including directions to follow a strict script while interacting with patients in their rooms. Immediately upon commencing employment with Jackson Memorial Hospital, Petitioner and her supervisor agreed that, unless Petitioner notified her supervisor to the contrary by the tenth of the preceding month, Petitioner would work a specific shift for 40 hours per week from Tuesday through Saturday during each week of the month. This agreement remained in effect until two or three years ago, when Petitioner and her supervisor agreed that Petitioner would work only Sunday and Monday each week, unless Petitioner notified the supervisor to the contrary by the tenth of the preceding month. From 1991 through the present, Petitioner has suffered no breaks in employment, meaning that she always has worked for at least part of each calendar month. In almost every month, she worked for at least very substantial parts of the month. She reported to work despite the birth of grandchildren and hurricanes. Perhaps four or five times each year, Jackson Memorial Hospital would not have enough work to warrant Petitioner's presence. Routinely, Petitioner's supervisor asked her to work a double shift because the hospital had too much work relative to available staff. During her 12-year career with Jackson Memorial Hospital, Petitioner has received numerous commendations for outstanding professional performance from her employer. From 1991 through the present, Petitioner has worked as a respiratory therapy technician only at Jackson Memorial Hospital. During this time, Petitioner has earned about 20 percent more than respiratory therapy technicians who are not in the pool. However, the record provides no basis to infer that this differential reflects the market value of the retirement contributions that the employer is making on behalf of the non- pool employees. These non-pool employees also enjoy other benefits not extended to pool employees, such as health, life, and dental insurance, paid holiday and sick leave, overtime for more than 40 hours' work per week, and flexible benefit plans for medical and dependent child care expenses. Jackson Memorial Hospital made FRS contributions for Petitioner for January 1992, June and July 1994, June 1995, and September 1995. Jackson Memorial Hospital has deducted Social Security contributions and federal income tax withholding from every paycheck that it has given to Petitioner. Although Petitioner's W-2 forms for 1991-93 were unavailable, her W-2 forms for 1994-96 showed that she participated in a pension plan. The remaining forms were illegible or showed no pension plan. The only reason that Petitioner could not leave the pool of respiratory therapy technicians, as she requested to do three times, was that she was not certified by the National Board of Respiratory Care. Respondent has not questioned that Petitioner is an employee, rather than an independent contractor. Jackson Memorial Hospital has treated her as an employee in taking contributions and withholding from Petitioner's paychecks. Respondent has adopted a rule, set forth in the Conclusions of Law, setting forth the guidelines to determine whether an individual is an employee or independent contractor. Petitioner satisfies each of the 20 tests, indicating that she is an employee, not an independent contractor. Overall, Petitioner is clearly subject to the close control of her employer, which has even scripted her conversations with patients. Among the specific tests, Jackson Memorial Hospital has trained Petitioner and integrated her technical services into the professional services delivered to its patients. Petitioner has delivered her services personally to Jackson Memorial Hospital's patients, has had a continuing relationship with her employer over 12 years, works set hours agreed upon in advance by her employer, works fulltime exclusively for Jackson Memorial Hospital, works on the employer's premises, uses the tools and material provided by her employer, works for a wage rather than a profit expectancy, does not offer her services to the general public, may quit at anytime, and is subject to firing at anytime. The real issue in this case goes to the special emphasis that Respondent's rules give to one of the tests of an independent contractor: the continuing relationship. In the language of the rule, which is discussed in the Conclusions of Law, the question is whether Petitioner has been filling a temporary position. The specific rule provision applicable to this case requires a factual determination of whether she occupies an "on call position," which is by definition a temporary position ineligible for FRS coverage because it is not a regularly established position. An "on call position" is a position filled by an employee who is "called to work unexpectedly for brief periods and whose employment ceases when the purpose for being called is satisfied." Twelve years' experience teaches that Petitioner was not called to work unexpectedly. Early each month, Petitioner and her employer agreed upon her work schedule for the following month. Rarely did her employer cancel a shift of Petitioner. Occasionally, the employer needed Petitioner to remain at work past her scheduled shift. But neither of these situations occurred with such frequency as to undermine the finding that Jackson Memorial Hospital scheduled Petitioner's work schedule well in advance, and, each month for 12 years, Petitioner performed her job in strict accordance with this schedule. The two remaining elements of the rule defining "on call positions" also do not apply to this case. Petitioner did not work "brief periods." She has worked day after day, week after week, year after year, for 12 years. The word "brief" does not apply to any aspect of her employment career with Jackson Memorial Hospital. Nor has her employment "cease[d]" at anytime during these 12 years.
Recommendation It is RECOMMENDED that the Division of Retirement enter a final order determining that, following the sixth consecutive calendar month after the commencement of employment at Jackson Memorial Hospital in 1991, Petitioner has been employed in a regularly established position under the Florida Retirement System. DONE AND ENTERED this 24th day of February, 2004, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE 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 24th day of February, 2004. COPIES FURNISHED: Sarabeth Snuggs, Interim Director Division of Retirement Department of Management Services Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 Alberto Dominguez, General Counsel Division of Retirement Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-1560 Mel Correa Qualified Representative c/o Nora H. Correa 8350 Northwest 168th Street Miami Lakes, Florida 33016-3467 Thomas E. Wright Assistant General Counsel Department of Management Services 4050 Esplanade Way, Suite 260 Tallahassee, Florida 32399-0950
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
Findings Of Fact Petitioner Hamdi A. Mohammed is a tenured professor in the Department of Dental Biomaterials, College of Dentistry, at the University of Florida. He received his dental degree in 1963 from the University of Alexandria in Egypt, obtained a Masters Degree in Prosthetic Dentistry in 1967 at Northwestern University, and his Doctorate Degree in Dental Materials and Engineering from the University of Michigan. Prior to the commencement of his employment at the University of Florida in 1974, he had served as an assistant professor and then associate professor at the University of Connecticut. (Testimony of petitioner, Exhibit 27 (Deposition of Petitioner)) Petitioner was first employed at the University of Florida in 1974 as a professor at a salary of $30,000.00. The notice of appointment stated that the Board of Regents had approved the appointment upon the recommendation of the President for 1974-1975 for a period of twelve months. In 1975, the Department of Dental Biomaterials, among others, was created within the College of Dentistry, and Petitioner was appointed chairman of the Department by Don L. Allen, Dean of the College of Dentistry on March 1 1975. Thereafter, the annual notice of appointment, dated November 25, 1975, which was signed by Dean Allen and Petitioner, reflected that the Board of Regents had approved Petitioner's appointment upon the recommendation of the President, as professor and chairman from July 1, 1975 to June 30, 1976 at a salary of $30,000.00. (Testimony of Petitioner, Allen, Exhibits 4, 6, 26 (Deposition of Allen), 27 (Deposition of Petitioner)) On February 24, 1976, Dean Allen recommended to the Board of Regents that Petitioner be tenured in the rank of professor when he became eligible on July 1, 1976. By letter of August 23, 1976, the President of the University informed "Professor" Mohammed that the Board of Regents had approved the tenure recommendation. Subsequent annual notices of appointment reflected that the President had approved the appointment of Petitioner for the ensuing year under Class Code 9060 as "chairperson and professor" in the College of Dentistry. In each instance, Petitioner acknowledged the appointment by signing the notice of appointment. (Exhibit 4) In the spring of 1980, Dean Allen received complaints against Petitioner from several members of the faculty in the Department of Dental Biomaterials. The complaints dealt generally with Petitioner's performance as chairman of the department primarily with respect to his alleged excessive absences and unavailability in the department, and taking credit for research efforts of other faculty members. Subsequently, on May 19, 1980, Dean Allen met with Petitioner to discuss his annual evaluation. The concerns which were discussed and later memorialized in the written "Annual Departmental Chairperson Review" were the "rather significant turnover of faculty members in the department" and "lack of a significant number of publications from the department." The written evaluation stated that "Dr. Mohammed's department, under his leadership, continues to do a very fine job in the dental educational program as well as the research program". The complaints of the faculty members were not discussed at the meeting. Dean Allen reported the complaints to Dr. Kenneth F. Finger, acting vice president for health affairs, who referred him to Thomas S. Biggs, Jr., the University attorney. Mr. Biggs, in turn, brought in Dr. Catherine A. Longstreth, Special Assistant to the President of the University. After discussing the matter, Biggs assigned an assistant to investigate the complaints and asked Dean Allen to provide him with further information concerning certain of Petitioner's activities in the department. At some point in time after several meetings, Biggs and Longstreth advised the Dean that he had the right to remove or not to reappoint Petitioner as the chairman at the end of the contract period on June 30, 1980, but could not remove him during a contract period without first affording Petitioner a hearing and showing cause for removal. They also agreed to support the Dean if he made the determination not to reappoint Petitioner as chairman of the department. At this time, a report of the investigation conducted by the University attorney's office had been provided to the participants wherein the investigator had found several instances of lack of verification of certain of the complaints made by the faculty members against Petitioner, but was otherwise inconclusive. (Testimony of Longstreth, Biggs, Allen, Exhibits 11, 20, 25 (Deposition of Longstreth), 26 (Deposition of Allen)) Dean Allen reported to Dr. Finger that he intended to meet with Petitioner and tell him that he would not continue as chairman of the department. Dr. Finger suggested that Dean Allen discuss the matter with some of the department's chairmen. On June 19, 1980, Dean Allen informed Petitioner of the faculty complaints and told him that, in view of the gravity of the situation, he considered that he had no option other than to try to rebuild the department with a new chairperson. The following day, Dean Allen met with five of the departmental chairpersons and informed them of his intent not to reappoint Petitioner as chairman of the Department of Dental Biomaterials. Dean Allen also met with Petitioner on June 22, 1980. At some time during their two meetings, the Dean told Petitioner that several "options" were open to him in the matter. These included non reappointment effective July 1, 1980 or July 1, 1981, or total resignation immediately from the faculty and the chairmanship, or resignation from the chairmanship only. However, Dean Allen told Petitioner that it seemed most appropriate for him to submit a letter of resignation prior to July 1, 1980 as chairman, which would be effective on June 30, 1981, and that he would keep the matter confidential until the beginning of 1981 so that Petitioner would have an opportunity to seek another position. Dean Allen indicated that he had discussed the "options" with Dr. Longstreth and Mr. Biggs. Petitioner testified at the hearing that the Dean had also told him that he was compelled to remove Petitioner as chairman upon the direction of those individuals. Dean Allen denied at the hearing that he had made such a statement. This conflict in the testimony cannot be resolved. In any event, by letter of June 23, 1980, Petitioner submitted his resignation as chairman effective June 30, 1981, and therein expressed the intent to remain in his position as a tenured professor in the department. The letter stated petitioner's understanding that his resignation would not reflect on his professional competence and ethical conduct or his ability to effectively function as a member of the tenured faculty, and requested that the Dean sign a copy of the letter if he concurred therein. Dean Allen expressed his concurrence by signing the copy of the letter on June 23, 1980. Also, by memorandum dated August 8, 1980, Dean Allen formally accepted the letter of resignation. In the memorandum, Dean Allen assured Petitioner that the fact of the resignation would not be disclosed until January, 1981. (Testimony of Petitioner, Allen, Exhibit 5, Exhibit 26 (Deposition of Allen), 27 (Deposition of Petitioner)) During ensuing months, Petitioner and Dean Allen exchanged correspondence concerning the Dean's stated intent to reduce Petitioner's state salary by $6,000.00 at the time the resignation as departmental chairperson became effective. By letter of October 22, 1980, Petitioner wrote to the Dean that, after due consideration, he was withdrawing his resignation. A letter from his attorney of the same date stated that it was apparent that proper procedures for handling complaints against faculty members were not followed, that Petitioner had been pressured and coerced into tendering his resignation, and that he had been advised that his income would be seriously affected if the resignation became effective. Mr. Biggs, the University attorney, responded to this letter of October 24th stating that the University had no intention of acknowledging the purported resignation withdrawal, but that the Dean, after appropriate consultation with other University officials, had made the decision that the interest of the department and college could best be served by someone else in the position as chairman. It further stated that petitioner did not have tenure in the administrative post of department chairman, and that, even absent a resignation, it was within the power of the Dean to make a change in the chairmanship of the department. (Exhibit 5) On December 12, 1980, Petitioner requested Dr. Finger to initiate a grievance proceeding and hearing "to investigate the ethics and justification of a resignation imposed upon me by Dr. Don L. Allen." In his letter, Petitioner stated that he had been pressured into resigning, but that after submitting the resignation, it was determined that the complaints against him had proved to be unfounded, and therefore he had withdrawn the resignation. He further stated his belief that the Dean's interest in discrediting him emanated from his discrimination against petitioner's national origin, citing an instance when Dean Allen had once stated in a public search committee meeting that he did not trust orientals and simply could not work with them. By letter of February 9, 1981, Dean Allen explained to Dr. Finger his reasons for his "plan" to remove Petitioner as chairman of the Department of Dental Biomaterials. He therein stated that the basic problem was the inability of Petitioner to develop a reasonably stable department from the standpoint of personnel to ensure its effectiveness. The letter further requested Dr. Finger's concurrence for the Dean to send Petitioner a letter stating that he would not be appointed chairperson of the department, effective with the 1981-1982 academic year appointment. Further correspondence ensued between Dean Allen and Petitioner, which culminated in the Dean's letter of May 1, 1981 advising Petitioner that after receiving certain materials from him, he had "reconsidered" the matter and it was his conclusion that the department had not demonstrated the continuity of faculty and staff to enable it to fulfill its responsibilities and commitments to the long-range goals of the College of Dentistry. It further stated the Dean's conviction that new leadership was required and that therefore he would not reappoint Petitioner as chairman at the end of the academic year. Effective July 1, 1981, Petitioner was not reappointed as department chairman, and an acting chairman has been serving in such capacity since that date. Petitioner has continued to serve as a professor in the department without reduction in salary. (Testimony of Allen, Exhibits 8, 13, 17, 18, 25 (Exhibits to Deposition of Longstreth)) It has been the general practice at the University of Florida for departmental chairmen to be appointed by the particular college dean with the concurrence of the appropriate vice president, without the need for personal approval by the President. Prior instances in which departmental chairmen had left that position were normally due to retirement or a voluntary desire to return to a purely faculty status without administrative duties. In such cases, the change normally would be effected simply by a resignation or the issuance of a personnel form showing the change in status. Although a chairman's state salary normally was above that of other members of the faculty, the specific amount for performing the duties of chairman was not identified as such until 1981 in the College of Dentistry. (Testimony of Biggs, Longstreth, Exhibit 5) Petitioner's status as a professor and later as a departmental chairman and professor was as an instructional and research faculty member (I and R) as opposed to the administrative and professional staff (A and P). The latter category includes specialized positions such as the university attorney, affirmative action officer, and clinical laboratory specialist. There is a separate classification for chairperson and professor which is Class Code 9060 in the State University System. A professor is under another class code. The classification system is designed to reflect a person's current duties and responsibilities and is relevant to the issue of collective bargaining unit determinations. Academic rank and tenure are reflected on annual notices of appointment. Those notices for Petitioner after he acquired tenure showed that he was in tenure status 1. He remained in tenure status 1 after July 1, 1981, as reflected in his notice of appointment as professor for the 1981-1982 school year. No instances have been shown where the Board of Regents or Respondent interpreted pertinent statutes and rules as providing for tenure with respect to administrative duties assigned to a faculty member, such as departmental chairman. Tenure recommendations and decisions uniformly have applied solely to faculty rank. It is considered common knowledge in academic circles that the concept of tenure does not apply to the position of departmental chairman. (Testimony of Perry, Allen, Longstreth, Biggs, Exhibits 25 (Deposition of Longstreth), 26 (Deposition of Allen), 28 (Deposition of Smith) 29 (Deposition of Wickwire), 30 (Deposition of Mahan), 31 (Deposition of Colaizzi)) Dean Allen's testimony at the hearing concerning the reasons that prompted him to decide not to reappoint Petitioner as chairman indicated that the accuracy of the faculty complaints was not the critical factor in his decision. He testified in the following vein: The big thing was whether these things were totally accurate or not, if Hamdi was perceived this way by this many people that were willing to put it down on paper, to make that kind of a commitment of what they were convinced of, then I felt like based on the history of the de- partment where everyone, every faculty member that had been in the department at this time had left or were leaving with the exception of Dr. Shen, who I believe had just joined the department, and some other things. (T 38-39) . . . that because I considered them to be generally true, and what I mean by generally true, I did not mean that each little word might be true but that the general situation was such that if these people, who some of them I knew, perceived of their chairman that way and would put it down in writing and knowing that the department had had difficulty in retaining faculty members, that all of those things taken together led me to believe that the perception of the people that worked with Dr. Mohammed as a colleague that were supposed to have some degree of freedom as a faculty member, that they did not see that they had that degree of freedom to the ap- propriate amount, and if Dr. Mohammed was perceived that way and this was the reason these people were leaving, then we needed an individual with a different kind of per- ception to chair that department. (T 111, Exhibit 26 (Deposition of Allen)) Dean Allen and Petitioner had been close personal friends for a number of years prior to the events of 1980. Petitioner's claim that the Dean's actions against him were prompted by discrimination against Petitioner's national origin was based primarily on a statement made by the Dean in 1978 before members of a faculty search committee that was considering several applicants for the position of chairman of the Department of Oral Surgery. Petitioner became upset as the result of an alleged statement by the Dean that foreigners could not be trusted. Two of the final three candidates were of foreign origin. In fact, the Dean had indicated to the committee that the position in question required a good working basis between the hospital and the medical school, and that he thought it was extremely important that the chairman knew American hospital procedures. He also had indicated some concern after interviewing the two foreign individuals that they wanted to tell him what they thought he wanted to hear rather than what they really thought. As a result of Petitioner's complaint to the Dean, the latter apologized at the next faculty meeting to the effect that if anyone had felt that he had said something derogatory about foreigners, he did not mean to do so. Most of the faculty members and graduate students in the Department of Dental Biomaterials were of foreign origin. It is found that the evidence is insufficient to show that the Dean's action with respect to Petitioner was based on any bias or discrimination against him because of his foreign origin. (Testimony of Allen, Petitioner, Exhibits 7, 26 (Deposition of Allen), 27 (Deposition of Petitioner), 28 (Deposition of Smith), 29 (Deposition of Wickwire), 30 (Deposition of Mahan), 31 (Deposition of Colaizze), 32 (Deposition of Lundeen))
The Issue Whether the Respondent, Benny O. Tjia, should be suspended from his position with the University for one semester and be required to reimburse the University for one working day?
Findings Of Fact Benny O. Tjia has been employed by the University since July 1, 1975. Dr. Tjia has been employed as an Extension Floriculture Specialist in the Department of Ornamental Horticulture of the Institute of Food and Agricultural Sciences (hereinafter referred to as "IFAS"), of the University. IFAS, including the Department of Ornamental Horticulture, provides teaching, research and extension services at the University. Dr. Tjia is a tenured Associate Professor at the University with an appointment in the Department of Ornamental Horticulture. Dr. Tjia's duties include the planning, developing and implementation of off-campus educational programs and the dissemination of research information to plant growers and the public in the area of floriculture. Dr. Tjia is the only Extension Floriculture Specialist working throughout the State of Florida. The chairman of the Department of Ornamental Horticulture, and Dr. Tjia's immediate supervisor, is Dr. Thomas Sheehan. Dr. Sheehan's immediate supervisor is Dr. John T. Woeste, IFAS Dean for Extension. On July 22, 1987, Dr. Tjia requested approval of leave with pay for the period October 12-27, 1987. The purpose of this leave was to participate as a speaker at a conference scheduled for October 15-17, 1987, and to participate in a post-conference seminar on October 22, 1987, at Massey University, New Zealand. Dr. Sheehan, in a memorandum dated August 11, 1987, approved Dr. Tjia's request for leave with pay, but only for the period of October 13-24, 1987. Dr. Sheehan advised Dr. Tjia that any additional time off would have to be taken as annual leave. Dr. Sheehan further advised Dr. Tjia that he should inform Dr. Sheehan in advance of any future negotiations for proposed out-of-state or out- of-country travel in order to avoid any embarrassment to Dr. Tjia or the University if leave is not approved. In late August, 1987, Dr. Tjia discussed with an Australian businessman the possibility of presenting a series of seminars in Australia from October 26, 1987, through November 10, 1987. Dr. Tjia decided that be would request approval of leave without pay to attend the seminars in Australia. He realized, however, that he did not have sufficient annual leave to cover the period of time he planned to spend in Australia. Therefore, Dr. Tjia requested the payment of 2,000.00 as compensation for his participation in the Australian seminars, which he believed would reimburse him for the leave without pay he would have to take from the University. During the first week of September, 1987, the Australian businessman and Dr. Tjia agreed that Dr. Tjia would participate in the seminars. Despite Dr. Sheehan's instructions to discuss out-of-county travel with him before accepting, Dr. Tjia did not inform Dr. Sheehan of, or obtain approval for, the Australian seminars before or after agreeing to participate. On Friday October 9, 1987, Dr. Tjia left a request for annual leave for the period October 26, 1987, through November 2, 1987, with Dr. Sheehan's secretary Dr. Tjia did not indicate in his request that he intended to participate in seminars in Australia during this period of time. Instead, Dr. Tjia indicated that he intended to visit relatives. On October 9, 1987, Dr. Tjia also left a request for leave without pay for the period November 3-13, 1987. Again, Dr. Tjia did not indicate in his request that he intended to participate in seminars in Australia during this period of time. Instead, Dr. Tjia indicated that he was requesting the leave for "personal reasons." Dr. Tjia did not discuss or attempt to discuss his leave requests of October 9, 1987, with Dr. Sheehan. When Dr. Sheehan received Dr. Tjia' leave requests on October 9, 1987, he attempted to contract Dr. Tjia to determine more information about Dr. Tjia's leave plans. Dr. Sheehan was unable to contact Dr. Tjia, however. After being informed that Dr. Tjia was running errands and would not return to this office on October 9, 1987, Dr. Sheehan wrote a memorandum to Dr. Tjia granting his request for annual leave on October 26, 1987, through November 2, 1987, and denying his request for leave without pay. A copy of this memorandum was left on Dr. Tjia's desk and in his University mail box and the original was mailed to Dr. Tjia's residence. Dr. Sheehan did not attempt to call Dr. Tjia. Dr. Tjia left the University on October 9, 1987. He left Gainesville, Florida, on Saturday October 10, 1987. Dr. Tjia never informed Dr. Sheehan that he intended on leaving Gainesville on October 10, 1987, instead of October 13, 1987, the first day of his approved leave. Dr. Tjia did not return to the University until November 16, 1987. Dr. Tjia was absent from the University without approval on October 12, 1987, and from November 3, 1987, through November 15, 1987. Dr. Tjia did not submit his request for approval of his proposed absence without pay until the last minute and did not wait until he determined whether his absence had been approved because he did not believe that his request would be approved. Dr. Tjia did not report to work on Monday, October 12, 1987. Dr. Tjia did not receive approval for his absence on October 12, 1987. October 12, 1987, was Columbus Day. Although Columbus Day is a Federal holiday, it is not a holiday for University personnel. Although Dr. Tjia was told by the department's administrative secretary that Columbus Day was a day, Dr. Tjia should have known that Columbus Day had not been a holiday for University personnel ever since his employment by the University in 1975. Additionally, Dr. Tjia was provided with a list of holidays in a memorandum which did not list Columbus Day as an authorized holiday. Dr. Tjia's testimony that he believed Columbus Day was a holiday is inconsistent with the fact that he requested approval of leave on July 22, 1987, for October 12, 1987. On or about October 19, 1987, Dr. Sheehan realized that Dr. Tjia had not receive the memorandum disapproving Dr. Tjia's request for leave without pay before his departure on October 10, 1987. Therefore, Dr. Sheehan telephoned Dr. Tjia's host in New Zealand an left a message requesting that Dr. Tjia call him. On October 21, 1987, Dr. Tjia telephoned Dr. Sheehan. Dr. Sheehan read his October 9, 1987, memorandum denying Dr. Tjia's request for leave without pay to Dr. Tjia over the telephone. Dr. Tjia was informed that he must return to the University on November 3, 1987 and that his failure to do so would constitute grounds for disciplinary action, including dismissal. On October 29, 1987, Dr. Sheehan received a letter dated October 23, 1987, from Dr. Tjia. In this letter Dr. Tjia indicated that he would not return to the University on November 3, 1987, as instructed by Dr. Sheehan. Dr. Tjia indicated that he would not return because he believed that his cancellation of his commitments would cause embarrassment to himself and the University. On October 30, 1987, Dr. Sheehan sent Dr. Tjia a mailgram, in care of Dr. Tjia's Australian host. Dr. Sheehan informed Dr. Tjia in the mailgram that his failure to report to the University a directed would constitute insubordination, neglect of his responsibilities to the University and a violation of the University's rules and regulations. Dr. Sheehan also called the spouse of Dr. Tjia's Australian host twice and asked her to ask Dr. Tjia to call him. Dr. Tjia received the information contained in Dr. Sheehan's mailgram of October 30, 1987, and Dr. Sheehan's request to call. Dr. Tjia did not call Dr. Sheehan, however, because he knew what Dr. Sheehan was trying to tell him. Dr. Tjia returned to the University on November 16, 1987. Dr. Tjia knew that he would be disciplined for failing to return to the University on November 3, 1987. Dr. Tjia did not visit relatives during the period of his annual leave as he indicated he planned to do in his request for annual leave. On November 19, 1987, Dr. Sheehan delivered a letter to Dr. Tjia from Dr. Woeste dated November 16, 1987. In this letter Dr. Tjia was informed that the University intended to suspend him without pay for the Spring Semester of 1988 (January 4 - May 5, 1988). Dr. Tjia was also informed that he would be required to reimburse the University for his salary for October 12, 1987. Dr. Tjia was informed that these actions were being taken because of his absence from the University on October 12, 1987, and during the period of November 3-13, 1987, without approval. Dr. Tjia was also informed that his actions constituted insubordination and neglect of his responsibilities to the University. Finally, Dr. Tjia was informed that he had the right to respond to the letter in writing or he could request a meeting within ten days of receipt of the letter. Dr. Tjia did not respond to the letter. By letter dated December 9, 1987, Dr. Woeste informed Dr. Tjia that the University had decided to take the actions outlined in the letter of November 16, 1987. Dr. Tjia was advised that he had the right to request a hearing pursuant to Section 120.57, Florida Statutes. Dr. Tjia requested a hearing pursuant to Section 120.57(1), Florida Statutes. The proposed action of the University was held in abeyance pending conclusion of the hearing. During the period of Dr. Tjia's absence without authorization from November 3, 1987, through November 13, 1987, Dr. Tjia's duties and responsibilities as an employee of the University were not carried out by Dr. Tjia. As a full-time faculty member, Dr. Tjia was required to be present at the University to preform day-to-day responsibilities unless his absence was approved by the University. Dr. Tjia did not perform these duties. Dr. Tjia received the University Faculty Handbook in January of 1984 and in the Fall of 1987. At page 24 of the 1987 Handbook it is provided: A leave of absence without pay may be granted by the President when it is determined that the leave of absence is an important benefit to the faculty member and the University. Pursuant to this provision, faculty members are required to provide sufficient information to demonstrate the benefit to the University and the faculty member of any leave without pay requested by a faculty member. IFAS Internal Management Memorandum Number 6C1-6.30-1-11, which Dr. Tjia received, requires that University faculty members submit requests for leave without pay well in advance of the period of leave. Dr. Tjia did not comply with the portion of the Handbook quoted, supra, by providing the University with sufficient information in his request for leave without pay of October 9, 1987, or otherwise, which demonstrated any benefit to the University. Dr. Tjia also did not comply with IFAS Internal Management Memorandum Number 6C1-6.30-1-11. Instead, Dr. Tjia waited until the day of his departure from the University and the day before his departure from Gainesville before submitting his request for leave without pay. Dr. Tjia intentionally waited until October 9, 1987, to request leave without pay because he was afraid it would be denied. No other employee of the Department of Ornamental Horticulture has requested leave without pay. Leave without pay has not been approved by the University for faculty members who desire to engage in the type of activities Dr. Tjia engaged in while he was absent from the University without approval. Leave without pay has only been granted for short periods of time when an employee has been inadvertently unable to return to the University as planned. Leave without pay has not been granted under circumstances similar to those involved in this case. Dr. Tjia, as a University faculty member, is charged with knowledge of the rules of the University and the Board of Regents. Dr. Tjia was aware, or should have been aware of the pertinent rules an regulations concerning leave and disciplinary matters. He also knew that he was in violation of those rules when he failed to return to the University on November 3, 1987, as directed by Dr. Sheehan. Dr. Tjia also knew that suspension was one of the penalties that could be imposed for neglect of duties or for insubordination. The University has suspended faculty members for misconduct. The University has not suspended any faculty member under circumstances similar to this case but no faculty member has failed to return to the University when instructed to do so other than Dr. Tjia. Dr. Tjia's failure to return to the University at the end of his annual leave on November 3, 1987, could have been treated by the University as a voluntary resignation pursuant to Rule 6C1-7.029(11), Florida Administrative Code. The University chose the lesser penalty of suspension to give Dr. Tjia an opportunity to remain with the University. The University chose suspension as the penalty in order to impress upon Dr. Tjia and other employees the seriousness of Dr. Tjia's offense, especially in light of his prior leave- related disciplinary problems. Dr. Tjia has been reprimanded and suspended by the University in the past for leave-related violations at the University. On August 30, 1984, Dr. Tjia received a written reprimand for absence from the University without approval. On September 27, 1985, Dr. Tjia was suspended without pay for ten days for being absent from the University without approval and for misrepresentations to University officials.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the University issue a Final Order requiring Dr. Tjia reimburse the University within thirty days of the date of the Final Order for his absence from the University on October 12, 1987, and suspending Dr. Tjia from his position with the University without pay for one semester. DONE and ENTERED this 13th day of December, 1988, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of December, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-5611 The University has submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. The University's Proposed Finding of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 1-3. 2 4-6. 3 7-8. 4 9-11. 5 12-13 and 17. 6 12-14. 7 12-13 and 31-33. 8 15. 9 16-17 and 19. 10 20-21. 11 22. 12 23-25. 13 26, 28 and 36. 14 27. 15 26 and 28. 16 28. 17 29. 18 36 and 39. 19 40. 20 41. 21 30. 22 34-35. 23 37-38. COPIES FURNISHED: Marshall M. Criser, Jr. President University of Florida 226 Tigert Hall Gainesville, Florida 32611 Isis Carbajal de Garcia Assistant General Counsel Office of the General Counsel University of Florida 207 Tigert Hall Gainesville, Florida 32011 Harry F. Chiles Assistant Attorney General Department of Legal Affairs The Capitol, Suite 1501 Tallahassee, Florida 32399-1000 Rodney W. Smith, Esquire Post Office Box 625 Alachua, Florida 32015
The Issue Whether 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
