The Issue The issue for determination is whether Respondent committed an unlawful employment act by discriminating against Petitioner on the basis of marital status in violation of the Florida Civil Rights Act of 1992, as amended.
Findings Of Fact In June 2008, Dr. Hernandez was hired at the University as a faculty member of the School of Pharmacy in the position as a professor. She had a one-year employment agreement, with no presumption of renewal and a starting salary of $97,000.00. At all times material hereto, Dr. Hernandez was divorced. Dr. Hernandez had been divorced from her husband since 1995. The University was aware that Dr. Hernandez was divorced when she was hired. She had been recruited by the University's then Dean of the School of Pharmacy, Dan Brown, who, at that time, was also divorced. Marital status is not a factor in hiring an employee by the University. Dr. Hernandez's marital status was not a consideration or a factor in her hiring. By February 15th of each year, faculty members are notified whether their employment contract will be renewed for the following year. If a faculty member is not notified by February 15th that their contract will not be renewed, the faculty member's contract is automatically renewed for another year. Dr. Hernandez's contract was renewed for the 2009-2010 academic year. Spring 2010 Dean Brown was one of Dr. Hernandez's supervisors. For all the professors in the School of Pharmacy, Dean Brown prepared and distributed a list of all of their current work load ratios. The goal for all Pharmacy professors was a ratio of 0.8. Dr. Hernandez's work load ratio was 0.68, which was below the goal. She failed to meet the goal of the work load ratio for all Pharmacy professors. Dr. Hernandez refused to accept the work load ratio as a reliable tool of performance and considered it as irrelevant to her. She did not express or exhibit an interest in improving her work load ratio. Also, Dean Brown prepared and distributed a comparative analysis of student surveys of all the Pharmacy professors. Students were requested to score the performance of all the Pharmacy professors in 12 different areas. Based on the student surveys of faculty performance, Dr. Hernandez was the second lowest ranked Pharmacy professor. She scored very low in the following areas: "presents material in concise, organized, easy-to-follow manner" and "is an effective teacher." Dr. Hernandez refused to accept the student surveys as a reliable tool of performance and had no interest in the comparative analysis from the student surveys. Additionally, she failed to express or exhibit an interest in improving in those areas in which the students gave her a low ranking. During his supervision of Dr. Hernandez, Dean Brown received several complaints from faculty members regarding emails that they had received from her. The faculty members considered the emails to be "caustic," "obnoxious," and "insulting." As a result, Dean Brown met with her and advised her to stop sending antagonistic emails and insulting her fellow faculty members. One week later, Dr. Hernandez sent such an email to a fellow professor, Mary Ferrill, Ph.D. Dr. Ferrill was married to Dean Brown. Dr. Hernandez's email insinuated that Dr. Ferrill received special treatment because she was married to Dean Brown and asked whether she "sang and danced" for her students. Both Dean Brown and Dr. Ferrill considered the email to be insulting and confronted Dr. Hernandez. Dean Brown raised his voice at Dr. Hernandez when he confronted her because he was very upset in that he had, only a week earlier, advised her to stop sending antagonistic and insulting emails to fellow faculty members. Dean Brown admitted to the University's Human Resources Office that he was wrong in raising his voice to Dr. Hernandez, and he apologized to Dr. Hernandez. Because of the confrontation with Dean Brown, Dr. Hernandez was fearful that her contract would not be renewed. Many of the classes at the School of Pharmacy are team taught: one course coordinator with several faculty members teaching segments of the course. Essential to team teaching is faculty members exhibiting team work. Dr. Hernandez was one of the team members who taught PHR 2264, Endocrinologic and Musculosketal Pharmacotherapy. The course coordinator was Professor Dana Brown, Ph.D. Dr. Hernandez repeatedly failed to meet established deadlines for team members in PHR 2264. Exam questions from team members for PHR 2264 were to be submitted to Dr. Dana Brown two weeks before the scheduled exams. Her responsibility was to carefully review all questions, including how the questions overlapped with questions submitted by other faculty members. Dr. Hernandez failed to submit timely her exam questions, forcing Dr. Dana Brown to follow-up with Dr. Hernandez regarding the questions. Further, Dr. Hernandez would generally not inform Dr. Dana Brown ahead of time that she would be submitting her exam questions late. On one occasion, Dr. Hernandez submitted her exam questions only one day before the exam. Additionally, exam lectures were to be posted 48 hours in advance of a class. Dr. Hernandez failed to post her exam lectures 48 hours before she taught her class and, generally, posted the exam lectures the night before her class. Students complained to Dr. Dana Brown that Dr. Hernandez was difficult to understand. Dr. Dana Brown observed some of Dr. Hernandez's lectures and thought that Dr. Hernandez failed to answer students' questions. Also, on one occasion, Dr. Dana Brown, responding to an email that she received from Dr. Hernandez, hit "reply all." Dr. Hernandez became upset and raised her voice to Dr. Dana Brown because the response went to persons other than Dr. Hernandez. Dr. Dana Brown spoke to Wagdy Wahba, Ph.D., the then Interim Associate Dean, of the School of Pharmacy several times regarding the problems that she was having with Dr. Hernandez. Summer 2010 In the summer 2010, Dean Brown stepped down as Dean of the School of Pharmacy to focus on teaching. In August 2010, Dr. Ferrill became the Dean of the School of Pharmacy. Fall 2010 Faculty Activities Plan and Report The School of Pharmacy uses a performance instrument for its professors, referred to as a Faculty Activities Plan and Report (FAPR), which is, basically, an evaluation of a professor's performance in the previous year and expectations for the future. A FAPR that shows significant student or faculty concerns about teaching or collegiality is considered deficient. Dr. Wahba completed the FAPR for all faculty members of the School of Pharmacy. Dr. Wahba was Dr. Hernandez's immediate supervisor. He completed her FAPR. In October 2010, Dr. Hernandez received her FAPR from him and met with him to discuss it. In the "Dean's Comments" section for the FAPR, Dr. Wahba included the following issues that he determined that Dr. Hernandez needed to address: [a.] Not showing up for scheduled class in February 2010, and not sending the recorded lecture to the students until 21 days later. [b.] How to improve relationship, communication & cooperation with other faculty & coordinators within the team-taught courses. [c.] How to avoid reactive responses to concerns expressed by colleagues & administration, verbally and via e-mail[.] [d.] Currently not posting lectures on e- college in a timely fashion according to school policy[.] [e.] Currently not submitting exam questions to coordinators in a timely fashion[.] [f.] Showing up late or not at all to scheduled review sessions and committee meetings[.] Dr. Wahba and Dr. Hernandez discussed his comments. Additionally, Dr. Wahba noted in the Dean's Comments section that, of great concern, was how Dr. Hernandez was going to address the negative comments from students in her student surveys. The students' comments mainly revolved around Dr. Hernandez's disorganized lecture presentations and her difficulty in explaining material clearly. During the meeting in October 2010 with Dr. Wahba on the FAPR, Dr. Hernandez showed no willingness to improve in the areas that he had determined deficient. Further, she took the position that she had no deficiencies in her performance and demanded proof from him of her deficiencies. After the October 2010 meeting, Dr. Wahba met with Dr. Hernandez a second time to discuss her FAPR. She continued to resist his efforts to address the areas determined by him to be deficient. After the meetings, the next step in the FAPR process was for Dr. Hernandez to respond to Dr. Wahba's comments with a written plan of action and to sign the FAPR. She failed to do so. She was the only faculty member of the School of Pharmacy who did not complete the FAPR process. Dr. Hernandez blames Dr. Wahba for her not completing the FAPR process, taking the position that his responsibility was to "pursue" her to complete the FAPR process. December 13, 2010 Meeting As Dean of the School of Pharmacy, one of Dr. Ferrill's responsibilities was to review the FAPRs of the School of Pharmacy's faculty. In the fall of 2010, three faculty members had deficient FAPRs: Dr. Hernandez; Luna Bennett, Ph.D.; and Devon Sherwood, Ph.D. Dr. Ferrill met with each of them to discuss their deficient FAPR. Before meeting with Dr. Hernandez, Dr. Ferrill met with Dr. Wahba and discussed Dr. Hernandez's FAPR. Dr. Wahba advised Dr. Ferrill that he had reached an impasse with her in that she had never responded to his comments in the FAPR. On December 13, 2010, Dr. Ferrill met with Dr. Hernandez to discuss her FAPR and her plans to improve on the deficiencies. Others who attended this meeting included Dr. Wahba and Keysha Bryant, Ph.D., a professor in the School of Pharmacy. During the meeting, Drs. Ferrill and Wahba discussed areas in which Dr. Hernandez's performance was good. Further, they discussed the areas of deficiency and informed her that she needed a plan of action to improve in those areas. Additionally, Dr. Ferrill advised Dr. Hernandez that she was at risk of non- renewal of her contract unless she made strides to improve on her areas of deficiency. During the meeting, Dr. Hernandez was not receptive to the discussion regarding her deficiencies. She indicated, among other things, that nothing was wrong with her teaching skills and that she saw no reason to change what she was doing. Additionally, when queried about her plan of action to address the negative comments in the FAPR, she became emotional and raised her voice. Sometime near the end of the meeting, Dr. Hernandez expressed that she was emotionally upset, explaining that her ex- husband was ill and that she was taking care of him. Without questioning from anyone, she stated voluntarily that her ex- husband was living with her, indicating that she recognized that she was sinning in the University's eyes, but not in the eyes of God. The University has a policy against members of the University, including faculty and students, having extramarital sexual relationships. The policy prohibits a member of the University from having extramarital sexual relationships regardless of whether the subject person was divorced, single, or married to someone other than the person with whom the subject person was having a sexual relationship. Dr. Ferrill believed that Dr. Hernandez was admitting to violating the University's policy on extramarital sexual relationships. Dr. Ferrill questioned her further as to whether she was having an extramarital sexual relationship with her ex- husband, but Dr. Hernandez refused to answer. Prior to the meeting on December 13, 2010, Dr. Hernandez had never spoken of her living arrangement or sexual relations with her ex-husband to Dr. Ferrill. Further, prior to the meeting on December 13, 2010, Dr. Ferrill was not aware of Dr. Hernandez's living arrangements. Dr. Ferrell believed that she was required to report any University policy violation or potential violation of which she was or became aware. As a result, Dr. Ferrill advised Dr. Hernandez that she (Dr. Ferrell) was required to report the potential policy violation to her (Dr. Ferrill's) supervisor. After the meeting on December 13, 2010, Dr. Ferrill reported to Provost Joseph Kloba that Dr. Hernandez had admitted to violating the University's policy against extramarital relations. Once Dr. Ferrill made the report to Provost Kloba, she considered that her duty to report was fulfilled. Dr. Ferrell spoke to no one else regarding Dr. Hernandez's living arrangements. Provost Kloba determined that no violation of the University's policy existed and that no further action was warranted. Once Provost Kloba made his decision, Dr. Ferrill considered Dr. Hernandez's living arrangements to be a non-issue. Dr. Hernandez's Living Arrangements In October 2010, Dr. Hernandez's ex-husband had a health crisis while visiting family in Georgia. Due to his health crisis, he suffered, among other things, cognitive deficits and became totally disabled. In November 2010, Dr. Hernandez moved her ex-husband to E. J. Healey Rehabilitation Facility in West Palm Beach, Florida. He remained at the facility until March 2011. The evidence demonstrates that no one at the University was aware of Dr. Hernandez's living arrangements until the meeting on December 13, 2010. Post December 13, 2010 Meeting and Non-Renewal of Contract After the meeting on December 13, 2010, Drs. Ferrill and Wahba gave Dr. Hernandez an extension to respond to her FAPR. Three days later, on December 16, 2010, Dr. Hernandez submitted her response. In her response, Dr. Hernandez indicated that there was no need to make any significant improvements. Further, she indicated that she did not understand the issues presented and would discuss the comments with the University's Human Resources Office. As to students' critical comments, she indicated that she did not know what to do with the comments, but would conduct a research project about it. In January 2011, Dr. Hernandez participated in a group interview conducted by the School of Pharmacy for the position of Dean of Faculty. The interviewee was Seena Haines, Ph.D. Dr. Hernandez asked Dr. Haines questions which appeared to relate to the spring 2010 incident that Dr. Hernandez had with then Dean Brown when he confronted Dr. Hernandez about the email she (Dr. Hernandez) had sent to Dr. Ferrill. Dr. Hernandez's questions to Dr. Haines were considered by Dr. Ferrill to be inappropriate for a group interview; by Dr. Dana Brown to be unprofessional; and by Dr. Wahba to be out of place. Dr. Ferrill recommended to Provost Kloba that Dr. Hernandez's contract not be renewed for another year. Dr. Ferrill's recommendation was based upon the deficiency issues identified in the FAPR regarding Dr. Hernandez's teaching and collegiality and upon Dr. Hernandez's lack of interest in improving her deficiencies. Provost Kloba, who was also the Chief Academic Officer, was responsible for making the decision as to whether to renew Dr. Hernandez's contract. He reviewed, among other things, her FAPRs, including the student comments and her responses, and received feedback from Drs. Ferrill, Wahba and Brown (Dean Brown in spring 2010). Provost Kloba decided to not renew Dr. Hernandez's contract for another year. Dr. Hernandez's living arrangements were not considered and were not a factor in Provost Kloba's decision of non-renewal. Regardless with whom Dr. Hernandez was living, Provost Kloba would not have renewed her contract. By letter dated February 1, 2011, Provost Kloba informed Dr. Hernandez that her contract would not be renewed for another year. By letter dated February 4, 2011, Provost Kloba informed Dr. Hernandez that, effective February 1, 2011, through June 30, 2011, she was placed on paid administrative leave. She received all pay and benefits through the expiration of her annual contract, i.e., June 30, 2011. Divorced Faculty Members The evidence demonstrates that the University employs several faculty members who are divorced. The evidence demonstrates that Dr. Brown (Dean Brown) is divorced. Comparative Employees The evidence fails to demonstrate any similarly situated employee who was not divorced and was treated more favorably than Dr. Hernandez. The evidence fails to demonstrate any employee who was accused of the same or similar conduct and was treated more favorably than Dr. Hernandez. Current Employment Currently, and since January 2012, Dr. Hernandez is a Professor of Medical Sciences at California North State University, College of Pharmacy. She is subject to a yearly appointment. Her yearly salary is $110,000.00.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the discrimination complaint of Maria Hernandez, Ph.D. DONE AND ENTERED this 4th day of February, 2013, in Tallahassee, Leon County, Florida. ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of February, 2013. COPIES FURNISHED: Stuart Silverman, Esquire Stuart Silverman, P.A. Post Office Box 812315 Boca Raton, Florida 33481 Peter L. Sampo, Esquire Lisa Ann McGlynn, Esquire Allen, Norton and Blue, P.A. 121 Majorca Avenue, Third Floor Coral Gables, Florida 33134 Denise Crawford, Agency Clerk Florida Commission on Human Relations Suite 100 2009 Apalachee Parkway Tallahassee, Florida 32301 Cheyanne Costilla, Interim General Counsel Florida Commission on Human Relations Suite 100 2009 Apalachee Parkway Tallahassee, Florida 32301
The Issue The issue in the case is whether the Respondent unlawfully discriminated against the Petitioner on the basis of a handicap or disability.
Findings Of Fact The Petitioner became employed on an annual non-renewing contract as a paraprofessional at Park Elementary School during the 1993-94 school year. The Petitioner was assigned to work in a classroom program for developmentally disabled preschool children. The children were three to four years of age and very active. There were between five to nine children in the classroom. The Petitioner was generally assigned to work with two children and was responsible for monitoring their activity. She was also responsible for physically controlling the children and changing diapers when required. The substantial part of the workday was spent standing, bending, lifting, and moving about with the children. The Petitioner continued her employment in the 1994-95 school year and received satisfactory evaluations. During the 1995-96 school year, the Petitioner continued her employment as a paraprofessional. Although there is evidence that the Petitioner's job performance was of some concern to the class teacher and to the school principal, the Petitioner was not formally evaluated because her employment was interrupted as set forth herein. There is no evidence that anyone discussed the concerns with her or that she had an opportunity to remedy any alleged deficit in her job performance. On January 2, 1996, the Petitioner was riding in a car being driven by her husband and was involved in an automobile accident when another driver struck the Petitioner's car. The Petitioner was injured in the accident and was taken to a hospital where she was treated and released. Subsequent to the accident, the Petitioner continued to have pain in her neck and sought treatment from a chiropractor. Eventually, the chiropractor referred the Petitioner to a neurologist in an attempt to determine the cause of the pain. The medical professionals determined that the Petitioner's injuries were not permanent. The Petitioner's chiropractor described the pain as a "typical soft tissue injury" and eventually stopped treating the pain because the pain did not improve and was not supported by diagnostic testing. The Petitioner's neurologist opined that the neck pain was not a "disability." The Petitioner returned to the school on February 14, 1996, and discussed her physical limitations with the school principal. She showed the principal a copy of a letter from her chiropractor to an insurer that stated that she was "able to work in a limited capacity . . . with a 15 pound limit" and that "she is to avoid excessive bending, stooping and standing." The Petitioner asserts that the school principal told her to go home and return a week later. The Respondent asserts that the Petitioner informed the Principal that she could do the job but only under the restrictions set forth in the chiropractor's letter. The evidence establishes that the discussion related to whether or not the Petitioner was able to return to work was centered on her ability to perform her responsibilities and that the Petitioner decided she was unable to return to work at that time and would return a week later. By letter dated February 15, 1996, the School Board's personnel coordinator advised the Petitioner that she had used all of her sick leave and would not receive any additional pay until she returned to work. The letter suggested that she request an official leave of absence effective January 2, 1996, in order to permit her retirement benefits to be maintained because "time spent on an official leave of absence can be bought back by the employee from the Division of Retirement." On February 21, 1996, the Petitioner contacted the school principal and informed him she would be unable to return on that day due to family matters. On February 22, 1996, the Petitioner returned to the campus and spoke with the principal. The Petitioner told the principal she did not feel physically capable of working as a paraprofessional in the preschool classroom and asked him to provide her with other employment. The principal told the Respondent he did not have any open positions at the school for which she would be physically suited. The principal was also concerned that because the Respondent was physically restricted from bending, stooping, and standing for an extended time, she would not be able to perform the responsibilities of her employment. There is no evidence that on February 22, 1996, or at any time during the remainder of the 1995-96 school year, there were jobs available at the school that did not require physical activity beyond the Petitioner's abilities. On February 26, 1996, the Petitioner contacted the school principal and said she wanted to take a leave of absence as suggested by the personnel coordinator. The principal believed there was a misunderstanding about the availability of the leave of absence to an annual contract employee and suggested that she speak to the personnel coordinator. The principal also called the coordinator and requested that he clarify the matter with the Petitioner. On February 27, 1996, the personnel coordinator telephoned the school principal and said that the Petitioner had been informed that she was not eligible for a leave of absence and said that the Petitioner had suggested she would resign her employment. On March 1, 1996, the Petitioner contacted the principal and said she wanted to apply for a leave of absence. The principal contacted the personnel coordinator who suggested that the Petitioner submit to the school superintendent a letter requesting the leave along with a copy of the chiropractor's letter and then let the superintendent decide whether or not he would recommend to the school board that her leave request be granted. The information was relayed to the Petitioner, who stated that she would submit the letter. By letter dated March 7, 1996, the Petitioner relayed the events to the superintendent and requested "any consideration you can give in resolving this matter." In the March 7 letter, the Petitioner writes, "[d]ue to the activeness of the children in this class the possibility of re-injuring myself is very high." She also advises that she informed the principal that the personnel coordinator suggested that she request the leave of absence and that the principal suggested that she write the letter to the superintendent. The Petitioner asserted that she would not resign from her position. Attached to the March 7 letter were past evaluations, a March 6 letter "to whom it may concern" from her chiropractor restating the symptoms of her injury, and the February 15 letter she received from the personnel coordinator suggesting the leave of absence. By letter dated March 19, 1996, the Petitioner referenced a March 15 meeting with the superintendent and states "[i]f there are no reasonable accommodations for a job replacement, I would like to request a medical leave of absence for the remainder of this year." She enclosed the letter from the chiropractor with the letter to the superintendent. There appears to have been no response from the superintendent to the Petitioner's request for a leave of absence. By letter dated June 4, 1996, the personnel coordinator responded to the request for leave of absence by stating that because the Petitioner was on an annual contract, the request for a leave of absence could not be granted. The letter also stated that due to a lack of funding, some employees would not be called back to work in the 1996-97 school year, and suggested that she should apply for a future vacant position "when you are again able " According to the leave policy set forth in the school board's employment handbook, any employee may request a leave of absence. Such requests must be made at least seven days prior to the requested leave period except in the case of emergency when the request must be made "as soon as possible." The policy requires that the leave application be made in writing and on the form provided for such requests. The policy provides that the School Board "may grant leave, with or without pay." The evidence fails to establish that the Petitioner followed the school system policy in requesting a leave of absence after her accident. The Petitioner did not complete and sign a form requesting a leave of absence. The first written request to the school superintendent for a leave of absence was the letter of March 19, approximately 70 days after the accident. The first time the issue of a leave of absence was verbally addressed by the Petitioner was on February 26, 1996, approximately 50 days after the accident, when she told the school principal that she wanted to take a leave of absence as suggested by the personnel coordinator in his letter of February 15. The evidence fails to establish that the Petitioner has a handicap or disability as those terms are defined under applicable statutes and case law. The evidence fails to establish that the Respondent discriminated against the Petitioner in any employment decision on the basis of a handicap or disability. There is no credible evidence that the Petitioner filed a Request for Disability Accommodation at any time prior to the end of the 1995-96 school year. For the remainder of the 1995-96 school year, a substitute teacher filled in for the Petitioner. The job remained open and available to the Petitioner through the end of the school year. The position was not filled on a permanent basis because school officials were uncertain about whether the Petitioner would be able to return for work. Paraprofessional employees working for the Highlands County School System are employed as annual employees for the first three years. After successful completion of the third year, the paraprofessional becomes eligible for consideration for continuing contract employment. An employee under an annual contract has no automatic right to re-employment. Continuing contract employment provides increased job security to an employee because termination of employment must be for "just cause" or when required by a "reduction in force." Continuing contract employees also receive preference over non-contract employees when workers are recalled after a reduction in force. The successful completion of the third year does not guarantee that the paraprofessional will receive the continuing contract, but only provides that such employee is eligible to receive such a contract The Respondent requires that in order to work a "complete" year, an employee must work for at least 150 days in a school term. Because the Petitioner did not work for at least 150 days in the 1995-96 school term, she did not complete the third year of employment and is not currently eligible for a continuing contract as a paraprofessional employee. The Respondent may permit a paraprofessional employee to work a fourth year, after which the employee automatically receives a continuing contract. Because there were concerns related to the Petitioner's job performance in the 1995-96 school year, the principal of the school would not likely have recommended that a fourth year of employment (and a resulting automatic continuing contract) be permitted.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief filed by Mary Ann Kerney. DONE AND ENTERED this 1st day of June, 2001, in Tallahassee, Leon County, Florida. WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of June, 2001. COPIES FURNISHED: Azizi M. Dixon, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Dana A. Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Katherine B. Heyward, Esquire John K. McClure, P.A. 230 South Commerce Avenue Sebring, Mary Ann Florida Kerney 33870 4524 Elm Sebring, Avenue Florida 33870 Honorable Charlie Crist Commissioner of Education Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 Wallace Cox, Superintendent Highlands County School Board 426 School Street Sebring, Florida 33870-4048
Findings Of Fact The Petitioner was first employed by the Liberty County School Board as a classroom teacher for the school terms 1971-72, 1972-73 and 1973-74 as an English classroom teacher. For the school year 1974-75, the Petitioner was employed for a fourth year as a teacher by Respondent. In November of 1974, the Petitioner requested and was granted maternity leave through the end of the school year, i.e., June 6, 1975. It is undisputed that during the first three school years of the Petitioner's employment with Respondent, her employment was pursuant to an annual contract. However, what is in dispute, is Petitioner's claim that during her fourth year of employment with Respondent, such employment was pursuant to a continuing contract. According to Petitioner, the then principal at the school in which she was employed recommended that she be reappointed for her forth year of employment pursuant to a continuing contract as did the then superintendent of schools, Tom Fairchild. Thereafter, on May 4, 1974, the School Board met and voted favorably on the Superintendent' s recommendation. In this regard, the minutes of the May 4, 1974, meeting of the school Board do not disclose the contractual status approved by the Board, i.e., annual or continuing. 1/ During the summer of 1975, Petitioner advised her principal that she would not be returning for the 1975-76 school year. Accordingly, the principal employed another teacher to replace her. Shortly thereafter, Petitioner informed the principal that she had changed her mind and wanted to teach the 1975-76 school year. She was not, however, rehired, as the position had been filled. During the summer months of 1975, Petitioner had several conversations with her then principal, Jerry Johnson. Initially, during her conversations with Principal Johnson, Petitioner related to him that she thought that she would be returning to her position for the 1975-76 school year. During the latter part of July, Principal Johnson explained to Petitioner the necessity for her to make a final decision with respect to her returning to her position, since he needed to hire a replacement if she was not returning. At that point, Petitioner remarked that, "I think I need to take another year's leave." Mr. Johnson remarked, "Well, we hate that you are not coming back, but if you feel that's best for the baby, I'm supportive of you." Within a few days, Petitioner called Mr. Johnson back and advised, "just pretend I didn't talk to you the other day. I want my job back." At that point, Mr. Johnson remarked, "Vicki, I wish you had told me. I have just hired somebody else." To this, Petitioner remarked, "Well, what do you mean you just hired so00body else. I am on a continuing contract, you know." Mr. Johnson remarked, "Well, I know, but you've got me in an awkward position. This boy has got Board connections." Petitioner remarked, "Well, it couldn't have been more than a verbal agreement. He couldn't have signed anything yet because you don't sign a contract this early in the year." 2/ Mr. Johnson remarked, "Well, that's true but everybody is going to be awfully upset. I can't tell him he doesn't have a job now, and I've told him he has one." Later, Mr. Johnson asked Petitioner to submit a letter of resignation to which Petitioner never responded. Prior to the beginning of the school year in either late August or early September of the 1975-76 school year, Petitioner visited the principal's office in Bristol and explained to him that while she did not want to force the issue, via a lawsuit in a small community, she would appreciate it if she was given the first teaching position that cane open in the school system. (TR 23, 24 and 25.) The Petitioner testified that she was ready, willing and able to work during the 1975-76 school year. Petitioner received a call from Mr. Johnson during October of 1975 wherein he inquired if she was ready to return to work. Petitioner responded that she was ready and had been since the summer. Mr. Johnson indicated that he had a teaching position opening up; however, that position never materialized inasmuch as the teacher who was supposed to have resigned, Carolyn Larkins, needed an additional year of employment for retirement purposes. Petitioner was not assigned to a position at any time during the 1975-76 school year. Toward the end of the 1975-76 school year, Petitioner again informed her principal of her continuing request to be assigned. When no assignment was given her at the beginning of the 1975-76 school year, the Petitioner, out of economic necessity, accompanied her husband to Maine where he had obtained employment. Petitioner made it plain to her principal that she still sought employment with the Board and would return to Florida if and when an assignment was offered her. Finally, in November, 1976, approximately two months after the Petitioner left Florida, her principal assigned her to a teaching position and she returned and resumed teaching in the school system. Petitioner was given an annual contract for the 1976-77 school year and inquired why she was being asked to sign an annual contract. Her principal advised her that it was "customary" to do so. The Petitioner remained on the assignment the remainder of the 1976-77 school year. At the end of the 1976-77 school year, the present Superintendent of Schools, Laquita Shuler, recommended and the Respondent School Board approved, the Petitioner's continued employment. The Petitioner taught the entire 1977-78 school year. During the 1977-78 school year, Petitioner was again tendered an annual contract for execution which she refused to sign. Petitioner, before the School Board meeting in December, 1977, contended that she had a continuing contract and the Board took no action on her contention. At the end of the 1977-78 school year, Petitioner was not recommended for continued employment by the Superintendent. This was so, despite the favorable recommendation of her principal. Petitioner, at all times subsequent to the end of the 1977-78 school year, has been refused further employment by the Respondent. The Petitioner has made efforts to obtain employment during the interim; however, her interim earnings have been minimal. Since her separation from the Liberty County School Board, the Petitioner has been ready, willing and able to work.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is hereby, RECOMMENDED: That the Respondent, School Board of Liberty County, make the Petitioner whole for wages including her loss of pay during the 1975-76 school year, her pay from the start of the 1976-77 school year through November 16, 1976, when she was reassigned to her teaching position, her pay from the start of the 1978- 79 school year through the date of her reinstatement, as well as the expenses incurred by the Petitioner as a direct and approximate result of the Respondent's actions. RECOMMENDED this 30th day of April, 1979, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675
The Issue The issue in the case is whether the application of Anne L. Kruppa (Petitioner) for a Florida Educator's Certificate should be denied for the reasons set forth in the Notice of Reasons issued on July 13, 2004, by Jim Horne, Commissioner of Education (Respondent).
Findings Of Fact By an application dated July 7, 2000, Petitioner applied for a teaching position with the Hillsborough County School District. In the application, the Petitioner identified her college degree as "B.S. Zoology" from the University of South Florida (USF). Above Petitioner's signature, the application states that Petitioner certified that the information provided on the application was "true and correct without any falsifications, omissions, or misleading statements of any kind whatsoever." The application contained a space where the date of Petitioner's college graduation was to be provided. Petitioner's application did not include a graduation date. A handwritten question mark appears in the space where the date was to be set forth. Petitioner was employed as a teacher by the Hillsborough County School District for the 2000-2001 school year. At the time of her employment, Petitioner was instructed to obtain her college transcript from USF and provide it to the Hillsborough County School District. The evidence establishes that Petitioner did not have a bachelor's degree in zoology from USF when she completed the employment application. By an application dated July 31, 2000, Petitioner applied for a Florida Educator's Certificate. In the application, Petitioner stated that she had received a bachelor's degree in zoology from USF in 1998. According to the application, by her signature, Petitioner certified that "all information pertaining to this application is true, correct, and complete." At the time of the certification application, Petitioner was directed to obtain her college transcript and provide it to the Florida Department of Education. The evidence establishes that Petitioner did not have a bachelor's degree in zoology from USF when she completed the certification application. By spring of 2001, Petitioner had not provided a transcript to either the Hillsborough County School District or to the Florida Department of Education. At that point, the Hillsborough County School District contacted USF to assist in obtaining Petitioner's transcript, at which time the district learned that Petitioner did not have a bachelor's degree. In April 2001, the Hillsborough County School District terminated Petitioner's employment because she could not obtain a Florida Educator's Certificate without a college degree, and the employment required such certification. After the termination of employment by the Hillsborough County School District, Petitioner worked with the Hillsborough County School District as a substitute teacher and attended Hillsborough Community College in the fall semester 2001. After completing a course at the community college, Petitioner received a bachelor's degree in zoology from USF on December 14, 2001, and returned to teaching full-time for the school district. The evidence establishes that prior to December 14, 2001, Petitioner did not have a bachelor's degree, contrary to the information set forth on her application for employment with the Hillsborough County School District or the application to obtain a Florida Educator's Certificate from the Florida Department of Education. At the hearing, Petitioner testified that at the time she filed the applications she believed that she had received her bachelor's degree from USF in the summer of 1997 after taking a course called Elementary Calculus II during the summer term. The USF summer term included three separate sessions. Session A and Session B were six-week terms. Session C, a ten- week term, is not at issue in this case. The records of the 1997 USF summer term indicate that the Petitioner was enrolled in "MAC 3234 Elem Clclus II" (Elementary Calculus II) during the Summer Session A. According to the transcript, she received an "F" in the course. Petitioner testified that she thought she had enrolled in the course for Summer Session B. Petitioner testified that she paid another person to attend the classes and take notes for Petitioner. Petitioner testified that Petitioner took "a bunch of the tests" and "was figuring I had roughly a B something in the course." The note-taker testified by deposition and recalled taking notes for Petitioner during July and August of 1997 for a fee of ten dollars per hour. There is no evidence that the note-taker took any tests. Classes for the 1997 USF Summer Session B commenced on June 30 and ended on August 8. Classes for the 1997 USF Summer Session A commenced on May 12 and ended on June 20. Petitioner testified that at some point after the summer session was completed, she saw the course instructor and spoke to him about her performance in the class. The instructor did not testify at the hearing. Petitioner testified that she did not receive her grade for Elementary Calculus II, but presumed that she had passed the course and received her degree. Review of Petitioner's USF transcript establishes that at various times Petitioner took courses identified as "MAC 3233 Elem Clclus I" (Elementary Calculus I) and "MAC 3234 Elem Clclus II" (Elementary Calculus II). Petitioner enrolled in Elementary Calculus I in the fall term of 1994, but withdrew. In the fall term of 1995, Petitioner re-enrolled in Elementary Calculus I and received a grade of "A." Petitioner first enrolled in Elementary Calculus II in the spring term of 1996 and received a grade of "F." Petitioner again enrolled in the course in the summer term of 1996 and received a grade of "D." In the fall term of 1996, Petitioner re-took the Elementary Calculus I course and received a grade of "F." Petitioner's testimony regarding her presumed performance in the summer 1997 course lacks credibility based on review of the transcript. Based on the performance in the referenced calculus courses, it is unlikely that Petitioner reasonably presumed without further inquiry that she passed the Elementary Calculus II course and received her degree after the summer term of 1997. Petitioner also testified that she believed her admission to the USF graduate school indicated that she had completed her undergraduate requirements, and that further inquiry was apparently not required. The Official Acceptance that was mailed to Petitioner and was required to be presented to USF officials in order to register for courses clearly states that the admission was "provisional." The Official Acceptance required that Petitioner submit to the graduate school her undergraduate transcript indicating that the degree had been conferred. Nothing provided to Petitioner by the USF graduate school indicated that the undergraduate degree had been awarded. Petitioner was in the USF graduate program for one semester and was enrolled for five classes, four of which were undergraduate-level classes. In the fifth class (identified as "EDF 6432 Fndtns Measrmnt") she received a grade of "F."
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Jim Horne, as Commissioner of Education, enter a final order denying Petitioner's pending application for a Florida Educator's Certificate and providing that Petitioner may not reapply for such certification for a period of two years. DONE AND ENTERED this 17th day of September, 2004, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of September, 2004.
The Issue The issue is whether Petitioner is entitled to the relief requested in his Step Three salary grievance with Florida A&M University (FAMU).
Findings Of Fact In school year 2008-2009, Petitioner was a tenured professor at Stetson University College of Law (Stetson) in St. Petersburg. The FAMU College of Law, located in Orlando, was recruiting new faculty to improve its stature and academic standing. Besides Petitioner's academic stature as a tax and business law professor, the College of Law was then only provisionally accredited by the American Bar Association, and it sought an individual, such as Petitioner, who could help the College of Law achieve and retain full accreditation. Like other state universities, College of Law faculty members are either on a nine-month (academic calendar), ten- month, or 12-month (annual calendar) contract. A 12-month contract is justified when a faculty member has regular year- round teaching, research, and/or administrative duties. In late 2008, Petitioner was first contacted by the Dean of the College of Law, LeRoy Pernell, regarding a teaching position for the upcoming school year 2009-2010. By letter dated February 26, 2009, Dean Pernell informed Petitioner that he would recommend his appointment as a tenured, full professor under a nine-month contract at a salary of $177,000.00. See Pet'r Ex. 1. Had he returned to Stetson for the 2009-2010 academic year, Petitioner's base salary would have been $154,230.00, plus "benefit costs," including a summer teaching supplement and a tuition-matching program for his family, which totaled more than Dean Pernell's initial offer. See Pet'r Ex. 3. Accordingly, Petitioner rejected the offer and asked for a compensation package of around $200,000.00. Although Dean Pernell had no authority to establish a salary level, he agreed to recommend that Petitioner receive a salary of $180,000.00 for a nine-month faculty contract, rather than $177,000.00, and to "commit to providing a funded summer research grant to equal no less than $15,000 for summers 2010- 2012, assuming continuing availability of funding." See Pet'r Ex. 2. These proposed changes were handwritten on the initial offer letter previously tendered by Dean Pernell. Dean Pernell's offer letter required that Petitioner work 12 months -- nine months as a professor and three months in a research role. The new offer was memorialized by the Dean in a third version of the initial offer letter dated February 26, 2009. As the testimony at hearing confirmed, the final version of the letter simply incorporated Dean Pernell's handwritten changes found on the second version and reads in pertinent part as follows: This is to advise you that by a vote of the faculty and my full support, I am recommending that you be appointed to the faculty of the Florida A&M University College of Law as a professor. The formal letter of offer from the Senior Vice President and Provost of Florida A&M University is forthcoming. This recommendation is as a tenured Professor [of] Law. The recommendation is that this appointment be effective commencing with the 2009-2010 academic year and commencing with a salary of $180,000.00 for a 9 month contract. In addition, I will recommend that the College of Law commit to providing you a funded summer research grant equal to no less than $15,000.00 for the summers 2010-2012, assuming continued availability of funds. See also Jt. Ex. 9, p. 3. The authority to make formal employment and salary offers to faculty members lies with the Provost and Vice President for Academic Affairs, who at that time was Dr. Cynthia Hughes-Harris. See FAMU Reg. 1.021; Jt. Ex. 2. She was not required to accept the recommendation of Dean Pernell and could make an offer that fit within FAMU's administrative and budget considerations. Dean Pernell made this clear during his negotiations with Petitioner. On April 20, 2009, Provost Hughes-Harris informed Petitioner by letter that FAMU was offering him a full-time position with the College of Law. The letter stated in part as follows: I am pleased to offer you a 12 month, full- time position as a full Professor and also, Associate Dean for Research & Faculty Development in the College of Law. Your position as professor is with tenure, subject to the approval of the Board of Trustees. The Board of Trustees will meet regarding this matter no later than June 2009. The annual salary of $180,000 with a $20,000 stipend for administrative responsibilities will be paid on a bi-weekly rate of $7,662.83. The appointment period is for the fiscal year, which will begin on July 1, 2009 and end on June 30, 2010. Jt. Ex. 1. While Provost Hughes-Harris' offer essentially matched the compensation recommended by Dean Pernell, the terms of the offer deviated in two material respects. First, rather than a nine-month faculty contract, Petitioner was offered a 12-month faculty contract. Second, rather than a "summer research grant" to supplement his salary, he was offered a 12-month position as Associate Dean for Research & Faculty Development, which required that he perform administrative duties on a year-round basis. Because of administrative duties, his teaching responsibilities were limited to a "maximum of two courses per academic year while Associate Dean." Id. The bottom line here is that Petitioner was offered the same compensation recommended by Dean Pernell, but he now had year-round administrative duties. Petitioner voluntarily accepted the offer on April 28, 2009. See Jt. Ex. 1, p. 2. At hearing, Provost Hughes-Harris denied ever receiving a copy of any offer letter by Dean Pernell, except the initial offer letter of $177,000.00. However, Provost Hughes- Harris did not make employment and salary offers without conferring with the recommending dean, and she acknowledged that there "was certainly conversation" with Dean Pernell before the offer letter was tendered. While she could not recall any details regarding that conversation, she recalled that her offer letter was for a 12-month faculty contract, and there was no way to "blend" a nine-month teaching contract with a 12-month administrator contract. This is because a nine-month position and a 12-month position require separate contracts and cannot be combined. Each employment contract signed by Petitioner included the following conditions: This Employment Contract between Florida A&M University Board of Trustees (FAMU) and the Employee is subject to the Constitution and laws of the State of Florida as constitutionally permissible, and the regulations, policies and procedures of [the] U.S. and the Florida Board of Governors and FAMU as now existing or hereafter promulgated. * * * This Employment Contract supersedes any and all prior agreements, contracts, understandings, and communications between the Employee and FAMU, whether written or oral, expressed or implied, relating to the subject matter of this Employment Contract and is intended as a complete and final expression of the terms of the Employment Contract between FAMU and the Employee and shall not be changed or subject to change orally. Jt. Ex. 1, 4, 5, 6, and 7. Petitioner commenced employment with the College of Law in July 2009 and continued working as Associate Dean and a full Professor until the summer of 2015. During that period of time, he taught at least one class in the fall and spring semesters and performed administrative duties as Associate Dean on a year-round basis. By then, regular pay adjustments had increased his base salary for fiscal year July 1, 2015, through June 30, 2016, to $189,304.30, plus a supplement of $20,000.00 as Associate Dean. See Jt. Ex. 6. When Dean Pernell stepped down as Dean in the summer of 2015, by letter dated June 15, 2015, the new Provost and Vice President for Academic Affairs, Marcella David, appointed Petitioner Interim Dean while a search for a new Dean was undertaken. Besides the base salary and supplement he already received as Associate Dean, Petitioner was given an additional supplement of $10,000.00 for serving as Interim Dean, for a total supplement of $30,000.00. See Jt. Ex. 8. On June 26, 2015, Petitioner voluntarily signed the offer letter confirming his acceptance. Id. Provost David's letter informed Petitioner that "upon cessation of [his] appointment as Interim Dean of the College of Law and return to the position of Associate Dean," his salary would "be adjusted consistent with applicable FAMU Board of Trustee Regulations and Policies." Id. This obviously meant that once a new Dean was hired, and he reassumed the position of Associate Dean, he would no longer receive the extra $10,000.00 supplement. For the first time, the letter specifically advised Petitioner to be aware of Regulation 10.102 and Policy 2005-15. Id. Prior to that time, no reference to specific regulations or policies was made. However, each employment contract placed him on notice that all FAMU policies and regulations applied to employment contracts.1/ Regulation 10.102 and Policy 2005-15 govern pay actions when faculty members serving in an administrative position return to a faculty only position. This meant that if Petitioner resumed full-time teaching with no administrative duties, he would be subject to the terms of those provisions. Before signing the June 15, 2015, offer letter, Petitioner did not ask how the Regulation and Policy would affect his base salary if he returned to a full-time faculty position since more than likely he assumed he would again serve as Associate Dean and a tenured professor. Subsections (11) and (12) of Regulation 10.102 read as follows: When the assignment of Faculty serving in an administrative position such as Vice President, Dean, Director, or Department Chair is changed, the pay and appointment period shall be adjusted to reflect the new responsibilities. Pay adjustments shall be completed in accordance with the Board of Trustees Policy 2005-15 (Separation and Return of Senior Administrative and Academic Officers to Faculty), as now or hereafter amended. An employee's base salary shall be adjusted 81.8 percent when changing from a twelve-month appointment to a nine-month appointment. An employee's base salary shall be adjusted by 122.2 percent when changing from a nine-month appointment to a twelve-month appointment. Jt. Ex. 10, p. 2. Section IV., Policy 2005-15, "Salary upon Change in Assignment to a Faculty Position," describes three ways in which to calculate an employee's salary after being reassigned from an administrative to faculty position. It reads as follows: New Hire as Administrator If the employee was hired upon initial appointment as an administrator, his or her new salary will be the median salary of the employees within the same professorial rank and discipline. Tenured Faculty Prior to Becoming an Administrator. If the employee was previously a tenured faculty member prior to becoming an administrator, his or her new salary will be the salary held by the employee immediately prior to the time of the administrative appointment and any increases received by the faculty during the time of service as an administrator. These separate compensations will be noted in the appointment letter. Other Consideration Notwithstanding the provisions of IV.A. and IV.B., any agreed upon salary arrangement negotiated by the President or President's designee upon appointment as an administrator shall also be considered. Jt. Ex. 3, p. 2. On January 4, 2016, A. Felecia Epps was selected as the new Dean of the College of Law, with a start date of January 4, 2016. After assuming the position, Dean Epps restructured the College of Law leadership and its personnel. A determination was made that Petitioner would not continue in his role as Associate Dean and he would return to a full-time position as instructional faculty. Because Petitioner no longer had the position and responsibilities as Associate Dean, and would work only nine months each year as a professor, he was tendered a new contract on March 3, 2016, which adjusted his base salary downward from $189,304.00 to $148,306.00. See Jt. Ex. 5. This calculation was consistent with Regulation 10.102(12). The term of employment was from August 1, 2016, through May 5, 2017, with no special supplements or conditions. The new salary represented compensation based on a nine-month contract as a professor rather than a 12-month contract with dual duties. According to Provost David, who tendered the offer, this salary adjustment was in accord with section IV.A., Policy 2005-15, which governs salary changes for employees who are reassigned from an administrative position to a faculty position and were hired upon initial appointment as an administrator. She explained that Petitioner was initially hired by the College of Law as Associate Dean, and upon cessation of that appointment, section IV.A. provides that the employee's new salary "be the median salary of the employees within the same professorial rank and discipline." She further explained that the provision assumes the person being appointed as a new administrator is a faculty member, as it would not otherwise refer to the employee as having a professorial rank. This interpretation of the Policy is a reasonable one and not clearly erroneous. On March 7, 2016, Petitioner filed a grievance arguing that he was entitled to the same compensation ($180,000.00) agreed upon when he was initially hired as a professor in 2009, plus annual accruals. On March 18, 2016, Petitioner signed the contract under protest and subject to his grievance. See Jt. Ex. 5. The current median salary of faculty members in the College of Law is $148,306.00, which is the same as the adjusted salary first offered Petitioner in March 2016. Petitioner points out, however, that at least three current College of Law faculty members of similar experience and expertise, hired just before or after he was hired in 2009, were given nine-month employment contracts with a base salary of around $180,000.00. Ten days before the final hearing, Provost David tendered Petitioner another employment contract that increased his annual base salary from $148,306.00 to $154,850.92. See Jt. Ex. 4. The rationale for this increase was first outlined in Provost David's memorandum dated May 13, 2016, which denied Petitioner's Step Two grievance. See Jt. Ex. 9, p. 6. As further explained by Provost David at hearing, by "generously" interpreting section IV.C., Petitioner's appointment as Interim Dean could be treated "as a new appointment as an administrator with a base salary identified there on a 12-month basis of $189,000 and change, which allowed me to add approximately $6,000 to the median salary that was calculated under Paragraph A." Faculty members with a 12-month contract accrue both vacation and sick leave. A nine-month faculty member does not. Petitioner is aware of this distinction. After this dispute arose, Petitioner requested a pay-out of his unused accrued vacation leave and was given $31,912.32.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Florida A&M University enter a final order denying Petitioner's Step Three grievance. DONE AND ENTERED this 3rd day of November, 2016, in Tallahassee, Leon County, Florida. S R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of November, 2016.
The Issue The issues to be resolved in this proceeding concern whether an unlawful employment practice was imposed upon the Petitioner by the Respondent, based upon her race, through a denial of her tenure and resultant termination from employment, as well as whether the Petition for Relief was timely filed, and therefore jurisdictional.
Findings Of Fact The Petitioner, at times pertinent hereto, was an Assistant Professor of Business Education. She was employed by the Respondent, FAMU and had worked in that capacity for a number of years since 1988, prior to which she had been employed by the Respondent University as an instructor. The Respondent, FAMU, is a university which is a part of the State of Florida University system, administered by the Board of Governors of the State University System, as well as its own Board of Trustees. The Petitioner was employed by the Respondent since 1983. She began as an instructor but was promoted to Assistant Professor of Business Education in 1988. In January 1999, she began working in a tenure-earning position as an Assistant Professor in the College of Education's Department of Business and Technology Education. She also served as chair of the department from 1998 through 2004. Florida Administrative Code Rules 6C-5.940(1)(e) and 6C3-10.211(5)(a) allow a period of six years during which one situated as the Petitioner, in a tenure-earning position, in continuous, full-time service, must earn and be granted tenure. If tenure is not earned and granted during that period, the Respondent must give notice to such an employee that further employment beyond the end of the seventh year of employment, without tenure, is not possible. The Petitioner applied for tenure on September 17, 2004. That tenure application was denied, which engendered the dispute involved in this proceeding. Prior to that application, however, at some point during her employment in a tenure-earning position, the Petitioner had previously applied for tenure, but the previous application had also been denied. That denial was presumably with leave for her to re-apply for tenure at a later time during her six year tenure-earning time period. After the Petitioner began her employment she received a copy of the applicable tenure criteria. The tenure criteria for scholarly publication require that a tenure candidate show that at least three publications by that candidate have at least been accepted for publication or have actually been published. Publications include books, monographs, and articles in national, regional, state or local journals, which meet peer review requirements. The publication requirements also mandate additional publication credit, which may include individual citations in quotations in a text or credits for scholarly endeavors. The requirements also contain the condition that at least two papers must be presented at state, regional or national professional meetings. The Petitioner's tenure application was submitted on September 17, 2004, and included references to three publications used by the Petitioner as meeting the publication requirements for tenure: a) a project for spring 2005 entitled "Professional Report Writing" with reference to Thomson Publishing Company; b) a 2005 project entitled "English and Grammar Skills Review for Business" also with reference to Thomson; and c) a 2005 project entitled "Charles Spencer Smith," with reference to the "Oxford Press." During the hearing, in her Exhibits 10 and 11, the Petitioner presented the cover pages of two of the projects, the "Professional Report Writing" text, as well as the "English and Grammar Skills Review for Business" text, in an attempt to prove compliance with the publication requirement for tenure. There was no showing, however, that the Respondent was provided with any documentation by the Petitioner during the tenure application process showing that these publications had been accepted by publishers for any of the projects. In September 2004, the Tenure and Promotion Committee within the College of Education (COE) was composed of Chair- Person Dr. Mary Newell, Dr. Arland Billups, Dr. Bernadette Kelly, Dr. Maria Okeke, and Dr. Theresa Shotwell. Dr. Shotwell did not vote on the Petitioner's tenure application to avoid the appearance of impropriety because she was chair of the department to which Petitioner belonged at the time. The COE Tenure and Promotion Committee considered the tenure application of the Petitioner and a secret ballot was held, resulting in a unanimous vote against granting tenure. The four members who testified in this hearing stated that they were not motivated by considerations of race when they considered the Petitioner's application. Once the individual college tenure and promotion committee votes on a tenure application, the matter is elevated for consideration by the University-Wide Tenure and Promotion Committee (University Committee). That committee considered the Petitioner's application for tenure on January 18, 2005, and voted to recommend approval of the application for tenure by a vote of 10 yeas, 1 nay, and 2 abstentions. The University Committee then considered the Petitioner's application for promotion from Assistant Professor to Associate Professor, on February 23, 2005. That promotion apparently requires approval of tenure status, because the committee voted to recommend denial of the application for the promotion. During the time the Petitioner's tenure and promotion applications were pending, Dr. Larry Robinson served as the Vice-President of Academic Affairs and as Provost of the university. Dr. Robinson reviewed the Petitioner's tenure application after the University Committee and recommended against granting her tenure. His decision, according to his testimony, was not racially motivated, but rather he explained that the Petitioner's application was recommended to be denied by him because he to thought it lacked sufficient documentation of scholarly publications. The Interim President of the Respondent University during the time the Petitioner's tenure and promotion applications were pending was Dr. Castell Bryant. Dr. Bryant was responsible for making a final review or consideration at the University level, taking into account recommendations of the tenure committees reporting to her. She then had the duty to nominate for tenure, or to decline nomination, to the University's Board of Trustees. The Board of Trustees had the authority to make final decisions concerning tenure applications. The Board would not consider a tenure application without a nomination by the University President. Dr. Bryant did not nominate the Petitioner for tenure to the Board of Trustees. She informed the Petitioner by letter of June 22, 2005, that the Petitioner's application for tenure was not approved for submission to the Board of Trustees. Dr. Bryant's letter to Dr. Young, in which she denied tenure, seems to indicate that Dr. Bryant was under the misapprehension that the University Committee had voted against recommending tenure when, in fact, it had voted in favor of tenure. Nonetheless, Dr. Bryant declined to nominate the Petitioner for tenure to the Board of Trustees, which act constituted a final denial, subject to the Petitioner's review rights concerning the decision. Dr. Deborah Austin was the Provost and Vice-President for Academic Affairs after Dr. Robinson left that position in September of 2005. She was requested to review the Petitioner's tenure denial, so Dr. Austin requested a "step-one grievance" reviewer, Dr. Charles MaGee, to review the Petitioner's tenure application. Dr. McGee found that the Petitioner's application did not satisfy the College of Education's tenure criteria (concerning scholarly publications) but he did recommend that the Petitioner actually receive tenure based upon her many years of service. Dr. Austin, however, did not agree with his assessment. She stated that the requirements for tenure don't provide for a substitution of the tenure criteria concerning scholarly publications and sponsored research, for years of service. In her letter of December 5, 2005, to the Petitioner Dr. Austin stated this reason for disagreement with Dr. McGee's assessment. She informed the Petitioner that this was the second time that she had applied for tenure and that, indeed, most faculty members are not given more than one opportunity to apply for tenure at the University. In that letter she also informed the Petitioner that she could file an appeal of the decision with Dr. Bryant within 30 days of receipt of the "step- one response" or file for an Administrative Proceeding with the Division of Administrative Hearings. She also advised the Petitioner of the steps to take in order to file a request for a proceeding before the Division of Administrative Hearings. Dr. William Tucker who testified on behalf of the Petitioner, and who has participated in faculty tenure review committees during his years at FAMU, pointed out that Dr. Bryant, the Interim President, had somehow misunderstood the university committee's vote. Dr. Tucker, however, indicated that he agreed with Dr. Austin that 22 years of service does not suffice as a criterion for granting tenure, although he did not agree with Dr. Austin's conclusion on the issue of tenure. The Petitioner sent a letter to Dr. Bryant requesting an appeal of Dr. Austin's decision (to Dr. Bryant) on January 4, 2006. She enclosed with that letter the cover pages for two of her projects and indicated that she thought they would serve as documentation for two of three publications needed for tenure. On April 3, 2006, Dr. Bryant sent a letter to the Petitioner as a follow-up to a meeting between those two on March 8, 2006, regarding re-consideration of the Petitioner's tenure application. Dr. Bryant indicated in that letter that, after thorough review of her tenure application package, Dr. Bryant found no reason to reverse the tenure decision previously made. The Petitioner contends that a comparator employee, Dr. Nancy Fontaine, was given an additional year to apply for tenure when she failed to achieve tenure and that the Petitioner was not accorded that opportunity. Dr. Fontaine is white. The Petitioner thus maintains that Dr. Fontaine was treated better than she and is a comparator employee outside her protected class. The Petitioner's evidence, however, does not establish that Dr. Fontaine and the Petitioner are actually similarly- situated employees. The Petitioner was not sure why Dr. Fontaine was initially denied tenure, but stated in her testimony that Dr. Fontaine was given another year to write an article or whatever she needed to do to qualify for tenure. The Petitioner did not, however, show that Dr. Fontaine lacked the same number of scholarly publications that the Petitioner lacked at the time of the tenure application, or that lack of publications was even the reason for Dr. Fontaine's initial tenure denial. She expressed no clear information in her testimony or other evidence as to what frailty, or degree of it, attended Dr. Fontaine's tenure application which was initially denied. Moreover, the Petitioner had a six-year period, as would any university personnel in tenure earning positions, to apply for tenure and then to re-apply if tenure were not granted on the first effort. The Petitioner, however, during that six- year period did not satisfy the Respondent's written scholarly publication requirement. The Petitioner adduced no persuasive evidence to show at what point in her tenure-seeking effort Dr. Fontaine was when she was denied tenure, and then given an additional year to earn tenure. It may be that Dr. Fontaine had a substantial portion of her six-year allowable period for tenure-earning still ahead of her. The evidence does not show. In any event, although the Petitioner attempts to compare the results of Dr. Fontaine's grievance process regarding her tenure denial to the Petitioner's application process, denial, and ultimate result, by way of showing disparate treatment, the evidence still does not show that Dr. Fontaine is a similarly-situated employee. When she was denied tenure, the Petitioner asked for a review of that decision and was granted one. As a result of that review, Dr. McGee recommended her for tenure, but acknowledged that she did not meet the requirement for scholarly publication. His recommendation had no binding effect, in any event, with regard to the Provost's and the Interim President's ultimate decision on the matter. Despite his recommendation, Provost Austin and Interim President Bryant chose not to grant tenure to the Petitioner on the basis of her publication deficiencies. Dr. Fontaine, on the other hand, used the complete grievance process under the university rules to file a complaint against the university pursuant to Florida Administrative Code Rule 6C3-10.232. During this process Dr. Fontaine requested additional time to apply for and earn tenure and, as a result, in a settlement of the dispute by settlement agreement, Dr. Fontaine was given another year to apply for tenure. The Petitioner, however, although being informed by Provost Robinson in his September 1, 2005, letter to the Petitioner that she could use that process, chose not to do so. The Petitioner also conceded that she did not request additional time to satisfy tenure requirements. Therefore, the Petitioner and Dr. Fontaine are not truly comparable and similarly-situated employees in the above- referenced particulars. Parties settle litigation for many reasons. Often the motivations are grounded in practicalities, such as limitation of litigation expenses balanced against the perceived likelihood of a successful litigated result. There is no evidence that the decision by FAMU to enter into a settlement agreement with Dr. Fontaine, whereby she was accorded additional time to qualify for tenure, was predicated, in any way, on Dr. Fontaine's race. There is no sufficiently detailed evidence to support a finding that the factual circumstances of Dr. Fontaine's tenure application, and its grant-versus denial consideration, were substantially similar to that of the Petitioner's.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the candor and demeanor of the witnesses, and the pleadings and the arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered by the Florida Commission on Human Relations dismissing the Petition in its entirety. DONE AND ENTERED this 25th day of June, 2008, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of June, 2008. COPIES FURNISHED: Mary L. Young Post Office Box 5452 Tallahassee, Florida 32314 Elizabeth T. McBride, Esquire Florida A & M University Office of the General Counsel Lee Hall, Suite 300 Tallahassee, Florida 32307 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Glen Bassett, Esquire Renee S. Gordon, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399
The Issue The issue is whether Petitioner, Ricky Lynn Sapp (Sapp), was nonrenewed for his annual teaching contract for constitutionally permissible reasons.
Findings Of Fact Petitioner was first employed by the Escambia County School Board for the 1984-85 school year in the compensatory education program at Bellview Middle School and later that school year he took the place of an eighth grade math teacher who was out on maternity leave. Sapp holds a Florida Teaching Certificate in elementary education and is not certified to teach in middle school. He has a bachelors degree. Sapp was asked by the School Board to take the courses necessary to become certified in middle school math, but did not do so because he was working at another job at the time. Petitioner was hired on annual contract by the principal of Bellview Middle School to teach seventh grade math during the 1985-86 school year and to teach sixth grade for the 1986-87 school year. For the most part, Sapp received excellent performance evaluations from the Bellview principal. In September, 1986, a mother of a Bellview Middle School student complained to the principal regarding what she believed to be unacceptable contact between Sapp and her son. The principal told Sapp to stay away from the student, but the parent's complaints continued. The student had been in Sapp's seventh grade math class the prior school year. On November 7, 1986, Sapp was arrested for lewd and lascivious assault on that student. As a result of these charges the Superintendent of the Escambia County School District recommended to the School Board that Sapp be suspended without pay. The School Board voted to disapprove the Superintendent's recommendation. Instead, Sapp was reassigned to administrative duties at the Hall Center. In the fall of 1986, Sapp was also notified by the Department of Education, Professional Practices Services (PPS), that an investigation of the allegations involved in the criminal charge had been instituted. On April 1, 1987, Sapp received the standard memo from the School Board, signed by the Bellview principal, indicating that his annual contract was going to expire at the end of the 1986-87 school year. The memo also indicated that the school district would move as rapidly as possible on the reappointment of the annual contract teachers recommended to the Superintendent for reappointment for the 1987-88 school year, but "personnel assignments resulting from the closing of the Beggs Center and the redistricting of all middle school boundaries greatly obscures the timeline for such reappointments." During the summer of 1987, Sapp talked to Dr. Roger Mott, the Assistant Superintendent for Personnel Services of the school district, and others in his office regarding appointment to an annual contract for the 1987-88 school year. Sapp claims he was told by Mott that he would not be rehired until after his criminal trial. Mott denies telling this to Sapp. Because Sapp's testimony was very confused and contradictory regarding these alleged statements by Mott, Sapp's version is given little weight. Instead, it is found that Mott did not tell Sapp that he would be rehired after the criminal trial. During the discussions between Sapp and Mott in the summer of 1987, Mott did tell Sapp that he was free to interview with any principals in the district for open annual contract positions, however those principals who inquired would be told that there was a Professional Practices Services investigation. Sapp expressed interest only in employment at Bellview. During 1987 the middle schools of Escambia County were redistricted. As a result of redistricting, Bellview Middle School anticipated losing approximately 300 students and 10 teaching positions for the 1987-88 school year. After the jury found him not guilty on August 12, 1987, Sapp again inquired regarding employment. According to Charles McCurley, principal of Bellview Middle School, there were no positions available at Bellview. By letter dated August 21, 1987, Sapp was advised that the Professional Practices Services was investigating two complaints. The first related to the charge of lewd and lascivious assault on a child. The second complaint was that Sapp had received his teaching certificate by fraudulent means because he failed to disclose two criminal convictions on his applications. Mott became aware of the PPS investigation and he discovered that Sapp had apparently falsified the applications for his teaching certificate and the applications for employment with the Escambia County School District. Mott then informed Sapp that the chances of reemployment were not good and that he could not be considered for employment until the PPS investigation was complete. Mott also testified that Sapp was not reemployed because of the information that formed the basis of the second PPS investigation. While this is not the place to determine whether or not Sapp falsified these applications, it is necessary to determine what facts the Respondent acted on in not renewing Sapp's annual contract. Sapp's applications to both the school district and the state showed that he answered "no" when asked if he had ever been convicted of a felony or first degree misdemeanor or other criminal offense other than a minor traffic violation. Sapp has, in fact, been convicted of at least two such violations which were not disclosed. Sapp approached Robert Husbands, Executive Director of the Escambia Education Association, for assistance in getting employment. Husbands talked to Mott. Mott informed him that Sapp could not be rehired until the PPS investigation was resolved. Husbands found that there were seven teaching positions in the whole county which were vacant at the beginning of the 1987-88 school year. Two of those positions were located some distance from Pensacola. Only one of those positions was known to have been filled by an annual contract teacher. There were 37 annual contract teachers in the school district who were not renewed for the 1987-88 school year. Eight others who were not renewed at the beginning of the school year were rehired during the year. Because of redistricting, Bellview had only one opening for an annual contract teacher after it placed its continuing contract teachers. That one opening was for reading and was filled by a reading teacher with a masters degree. Sapp was not qualified for that position. After the 1987-88 school year had begun, Bellview experienced increased enrollment and a resulting increase in teaching positions. Those positions were filled by teachers who were teaching in their field of certification and who were at least as qualified as Sapp. It was very important that Bellview have teachers working in their area of certification because the school was to be audited for accreditation in the 1987-88 school year. Sapp's former position at Bellview was filled by a continuing contract teacher who had previously taught seventh grade and who was certified to teach in both middle and elementary school. The teacher who took over Sapp's class in the 1986-87 school year was not rehired. During the first week of the 1987-88 school year, Sapp sought employment at Bellview and the principal correctly told him there were no jobs. Later, in October, 1987, a position opened up at Bellview and a continuing contract teacher with a masters degree in reading and 18 years of experience was transferred in at her request. Sapp believes he was not renewed as retaliation for the School Board's rejection of the Superintendent's recommendation for suspension on January 27, 1987. This allegation is based only on Sapp's personal feeling and no evidence was presented to substantiate his belief. Sapp also believes he was not renewed because of the arrest itself. Again, no evidence was presented to substantiate his belief. By letter of September 18, 1987, the School District, through counsel, advised Sapp's attorney that Sapp would not be considered for reemployment until the PPS investigation was concluded and the District was advised of the results. The PPS has not filed any complaint against Sapp based on either of its investigations.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner, Ricky Lynn Sapp, be DENIED relief from the nonrenewal of his annual contract and that his request for relief be DISMISSED. DONE and ENTERED this 8th day of March, 1988, in Tallahassee, Florida. DIANE K. KIESLING 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 8th day of March, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-5059 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case. Specific Rulings on Proposed Finding's of Fact Submitted by Petitioner, Ricky Lynn Sapp Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(1); 2(10); 3(12); 4(14); 5(2); 6(2); 8(3); 9(3); 11(4); 12(5); 13(8); 15(6); 16(7); 18(23); 20(20); 21(24); 22(26); 23(26); and 25(27). Proposed findings of fact 7, 17, 28 and 29 are subordinate to the facts actually found in this Recommended Order. Proposed finding of fact 10 is rejected as irrelevant. Propose findings of fact 14, 19, 24, 26, 27, and 30 are rejected as being unsupported by the competent, substantial evidence. Specific Rulings on Proposed Findings of Fact Submitted by Respondent, School Board of Escambia County Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(9); 2(1 and 10); 3(11); 4(25); 5(25); 6(13); 7(14 and 16); 8(15 and 22); 9(18); 10(22 and 23); 11(6); 12(19); 13(29); 14(30 and 31); 15(32); 16(33); 18(19); 19(27); 20(28); 21(33); 22(34); and 23(35). Proposed finding of fact 17 is rejected as being unnecessary. Proposed finding of fact 24 is subordinate to the facts actually found in this Recommended Order. COPIES FURNISHED: G. James Roark, III, Esquire 17 West Cervantes Street Pensacola, Florida 32501 Philip J. Padovano, Esquire Post Office Box 873 Tallahassee, Florida 32302 Mike Holloway Superintendent of School Board Escambia County 215 West Garden Street Post Office Box 1470 Pensacola, Florida 32597-1470 Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399
Findings Of Fact The petitioners herein are all professors employed by the respondent Florida State University (FSU) as faculty members in the School of Music. Pursuant to a "petition for an administrative determination" filed with the Division of Administrative Hearings, petitioners seek a declaration that the written documents appended to the petition are rules within the meaning of the Administrative Procedure Act (APA) and, because they were not promulgated in accordance with the APA, they constitute an invalid exercise of delegated legislative authority. The respondent contends that the petitioners herein are not substantially affected persons within the meaning of F.S.120.56(I) and thus they lack standing to challenge said documents. By a motion to dismiss, respondent further contends that the instant proceeding constitutes a collateral attack upon final agency action and therefore the Division of Administrative Hearings lacks jurisdiction to entertain a rule challenge petition. Finally, respondent urges that the documents in question do not fall within the definition of a rule and are, in fact, specifically exempted from said definition. It is claimed that said documents constitute either internal management memoranda or the preparation or modification of either agency budgets or contractual provisions reached as a result of collective bargaining. The five documents attached to the petition will be described in more detail below. Briefly, these documents are as follows: The "Florida State University procedures" for the award of merit salary and other increases; A portion of the School of Music bylaws; A faculty roster form listing each faculty member of the School of Music with a space provided for an evaluation; A form entitled faculty evaluation summary; and The student instructional rating system (SIRS) interpretation manual. Each of these documents (Exhibits 1 through 5) were utilized by the respondent to determine merit pay increases for each of the petitioners for the 1978-79 school year. Unless amended prior to the evaluation process for the 1979-80 school year, each document will be utilized again in determining merit increases for faculty members of the School of Music. Having been evaluated for merit salary increases under these documents in the past, with a more than reasonable likelihood of future use of the documents for future evaluations, petitioners have adequately demonstrated that they are substantially affected persons within the meaning of F.S.120.56. Not only has their present remuneration for their services been determined pursuant to these documents, their future annual salaries will be affected by the determination reached as a result of the original use of these documents. Unlike the case of Fla. Dept. of Offender Rehabilitation v. Jerry, 353 So.2d 1230 (Fla. App. 1st, 1978), petitioners have illustrated that the impact of the challenged documents are continual, having both present and prospective impact. Faculty members of a university have a substantial interest in the emoluments of their employment. Written documents which substantially affect that interest, if otherwise falling within the APA's definition of rule, can be challenged if a proper petition is filed pursuant to Section 120.56. The respondent contends that the case of HRS v. Barr, 359 So.2d 503 (Fla. App. 1st 1978) bars the instant proceeding. That case held that Hearing Officers had no collateral review power over final agency action taken after regular proceedings under other provisions of the APA. The undersigned finds, and so concludes, that the Barr case, which dealt with a declaratory statement, has no applicability to the facts of the present case. The present petition is not a collateral attack upon an adjudication of petitioners' rights by the agency. The documents in question do not constitute final agency action and the petitioners herein are not challenging the actual determinations of their merit pay. The petition challenges the documents which govern the procedure by which the merit pay increases are made, and the Hearing Officer limited all testimony to that issue. Testimony regarding the results of the evaluation process which occurred in May of 1978 and the manner in which that particular evaluation was conducted was not permitted. The petition alleged that the documents in question constituted rules within the meaning and intent of the APA and that they were substantially affected by said rules. Thus, the petition properly alleged a cause of action under Section 120.56. Having found that the petitioners are substantially affected by the documents utilized by FSU to determine merit increases for faculty members, it now must be determined whether said documents constitute rules within the meaning and intent of the APA. The controlling statutory provision is F.S. 120.52(14), which reads in relevant part as follows: 'Rule' means each agency statement of general applicability that implements, interprets, or prescribes law or policy or describes the organization, procedure, or practice requirements of an agency and includes any form which imposes any requirement or solicits any information not specifically required by statute or by an existing rule. The term also includes the amendment or repeal of a rule. The term does not include: (a) internal management memoranda which do not affect either the private interest of a person or any plan or procedure important to the public and which have no application outside the agency issuing the memorandum; (c) the preparation or modification of: agency budgets. contractual provisions reached as a result of collective bargaining. The first document challenged herein is entitled "Florida State University Procedures" and it contains procedures and guidelines for merit increases, equity increases, and other increases. It divides merit increases into two levels, defines the levels and prescribes, in general form, the procedures to be utilized in evaluating all members of the faculty for merit raises. A "Note" at the end of this document describes the document as FSU "internal procedures for implementing the Statement Concerning Merit and Other Salary Increases." This "Statement" is contained in the collective bargaining agreement between the Florida Board of Regents, State University System of Florida and the United Faculty of Florida. The document in question was created by a committee appointed by President Sliger of FSU. The task of the committee was to devise procedures for the distribution of discretionary funds. The procedures apply generally and equally to each segment of the University and to each faculty member. Other than the "Statement" referred to above, which simply sets forth the criteria by which to evaluate faculty members for merit salary increases, the only other reference in the collective bargaining agreement to salaries is contained in Article 23. Section 23.1(b)(2) simply refers to "discretionary increases in recognition of merit." The document entitled "FSU Procedures" is an agency statement of general applicability that implements, interprets and prescribes law or policy. It sets forth the procedure to be utilized in the discretionary award of merit pay increases. Contrary to the assertions of respondent, this document does not fall within any of the relevant exceptions to the term "rule." Although the procedure is for use internally within the University, it affects the private interest of each faculty member in the compensation he or she receives for services performed for the University. Thus, it is not an "internal management memoranda" exception. While the Procedures do provide the method by which allocated and budgeted funds will be distributed, the document itself does not "budget" any of the funds. The testimony at the hearing was to the effect that these Procedures were created and posted prior to the University's budget submissions and that the budget division of FSU had no role in the creation of the document. Thus, this document cannot be considered as preparation or modification of an agency budget. Finally, the "FSU Procedures" do not fall within the exception for the preparation or modification of "contractual provisions reached as a result of collective bargaining." The document is not a "contractual provision." Although its contents refer to the collective bargaining agreement, the agreement itself only provides that the award of merit salary increases are to be discretionary with the University. Indeed, the testimony and documentary evidence adduced at the hearing illustrates that the Procedures were created and put into operation prior to the time that the collective bargaining agreement became effective. In and of itself, this agency statement purports to create certain rights and adversely affect other rights with regard to funds available for merit increases. See State Dept. of Administration v. Stevens, 344 So.2d 290 (Fla. App. 1st, 1977). This agency statement having general applicability that implements, prescribes and interprets the University's policy regarding award of discretionary merit increases is a rule within the meaning of the APA. The University having failed to properly promulgate said rule in accordance with F.S. 120.54, the document entitled "Florida State University Procedures" constitutes an invalid exercise of delegated legislative authority. The next document for consideration is a portion of the bylaws of the School of Music at FSU. This consists of a set of directives which define the organization of a peer evaluation committee and prescribe the criteria and procedures under which that committee will evaluate faculty members of the School of Music and make recommendations to the Dean regarding merit raises. The criteria to be considered are identical to the criteria already contained in either existing rules of the Board of Regents and FSU (F.A.C. Ch. 6C-5.05 and 6C2-4.33) or in the "statement" contained in the collective bargaining agreement. Thus, the criteria in the bylaws simply constitute a restatement of either existing rules or the contractual provisions of the collective bargaining agreement. The only relevant remaining portion of the bylaws is that portion which directs that the School of Music faculty advisory committee shall also sit as the peer evaluation committee for merit salary increases. This does not constitute an "agency statement of general applicability" within the definition of a rule. It is simply the statement of the School of Music, which is not an agency within the meaning of the APA. The FSU School of Music bylaws do not fall within the APA's definition of a rule. The third document is a form or a worksheet consisting of a School of Music faculty roster with five spaces provided for the peer evaluation committee to rank each faculty member. Each committee member is directed to review the personnel file for each faculty member and, consistent with the established procedures and criteria, complete the worksheet which is then tabulated with the results being communicated to the Dean in the form of a recommendation. A form may fall within the definition of a rule if it otherwise fits the definition and if it "imposes any requirement or solicits any information not specifically required by statute or by an existing rule." F.S. 120.52(14). This form is not an agency statement of general applicability and it does not impose requirements or solicit information not already required by existing rule or statute. It is simply a data collection device utilized by the School of Music to arrive at an evaluation of its faculty members' effectiveness in the traditional areas of professional activity as required by existing rules and the "Statement" contained in the collective bargaining agreement. It is not an "agency statement" within the definition of a rule. The same rationale applies to the fourth and fifth documents under review herein. Both of these documents -- the "faculty evaluation summary" and the "SIRS interpretation manual" -- have been utilized by FSU for over five years to evaluate the overall performance and the teaching effectiveness of its faculty. They are not agency statements and the forms do not impose requirements or solicit information not already required by existing rule or statute. The areas of performance to be evaluated in the "faculty evaluation summary" are described in detail in existing Rules 6C-5.05(2) and 6C2-4.33, as well as in the collective bargaining agreement. The SIRS evaluation is specifically referred to in FSU Rule 6C2-4.33(1)(d) and is simply another tool to be utilized in the total evaluation process. These forms are not "rules" within the meaning and intent of the APA. The undersigned Hearing Officer has carefully considered the legal arguments raised by the parties, both at the hearing and in written memoranda submitted subsequent to the hearing. To the extent that the legal arguments of the parties were deemed meritorious, they have been addressed herein. One final matter deserves treatment. At the close of the hearing, petitioners sought to publish and introduce into evidence certain answers to interrogatories, and the University sought to publish others completed by Dean Wiley Housewright. Dean Housewright was present throughout the hearing and was twice called as a witness. His testimony included a discussion concerning the subject of each interrogatory sought to be published. The proper time to delineate inconsistencies between his testimony and the answers to interrogatories, if any, was during the examination of this witness. Therefore, the requests of both parties to publish these responses to interrogatories are denied.
The Issue The issues presented for decision in the above-styled matter are as follows: Can tenure be denied, as opposed to being granted or postponed, during the fifth year of employment? If so, was petitioner wrongfully denied tenure? Did respondent wrongfully determine that petitioner's employment contract would not be renewed beyond June of 1975? 4 Was petitioner wrongfully terminated before he received a due process hearing?
Findings Of Fact Based upon the admissible oral ad documentary evidence adduced at the hearing, the following pertinent facts are found: Petitioner Jeffrey Rosner was hired by the respondent in September of 1969 as an Assistant Professor in the Department of Political Science, College of Social and Behavioral Sciences, a tenure-earning position. He was reappointed to this position for the school years 1970-71, 1971-72, 1972-73, 1973-74, and 1974-75. During the period of time between September, 1969 and June of 1975, petitioner received and reviewed student evaluations of his teaching effectiveness. Although his student evaluations improved over the five-year period in question, petitioner's evaluations from students were consistently below the college median. Also, for the calendar year 1973, rating scores were assigned to all fifteen faculty members of petitioner's department. In the area of teaching, petitioner ranked fourteenth. 1/ At all times, petitioner's primary assigned duty was teaching. At all times relevant to this proceeding - from the time petitioner received his first appointment to the present time - the Florida Board of Regents had established and set forth three areas in which faculty members would be evaluated for purposes of tenure, promotion, salary and retention. These three areas are teaching, research and other creative activities and service. Also, "tenure" has been consistently defined in terms of a high degree of competence in the three areas mentioned above. The respondent University, at least since 1970, has employed the use of "tenure forms" in order to gather information from the individual faculty members being considered for tenure in the areas of teaching, research and service. Such forms may be supplemented as was done in the instant case by a six-page supplementary statement. In the middle of his fifth year of continuous employment at the University of South Florida, petitioner was considered for tenure. It was the common practice in the Political Science Department to consider faculty members for tenure during their fifth year. The faculty member himself is not given a choice as to whether he wishes to be considered or postponed for tenure. At the time petitioner was considered for tenure, from December of 1973 through March of 1974, the procedure utilized in the Political Science Department was as follows. The tenured faculty members of the Department review the candidate's file, which is at least partially prepared by him, and then vote by secret ballot to either grant, deny or defer the tenure decision. An advisory committee consisting of four persons (three acting and an alternate) elected by the faculty members also reviews the candidate's file. Each member of the advisory committee makes an independent evaluation of the candidate and then the members' get together, rate the candidate on a scale of 1 to 5 in the areas of teaching effectiveness, research and creative activity, service and overall quality. The committee members than vote upon the recommendation to be made to the Department Chairman to either grant, deny or defer tenure. The Department Chairman then reviews everything to date, rates the candidate on the same areas and makes his decision. The candidate is then notified of the Department's decision and is given an opportunity to request to meet with the Chairman and/or the advisory committee to discuss reconsideration of the decision. Thereafter, the recommendation is finalized and everything is sent to the Dean of the College. The Dean recommends to the Vice president of Academic Affairs and the Vice President recommends to the President of the University. The above procedure was followed in Dr. Rosner's case and the following transpired: The tenured faculty, consisting of six persons, voted four opposed to granting tenure, two to defer the tenure decision and none in favor of granting tenure. During its first consideration, the departmental advisory committee, consisting of three faculty members - one tenured and two non-tenured - voted as follows: two opposed to granting tenure, one to defer the tenure decision and none in favor of granting tenure. That committee found that while petitioner's areas of specialization were relevant to the Department's needs, plans and goals, his performance in the categories of evaluation - teaching, research and service - "is insufficiently high to justify granting him tenure." On a scale of 1 to 5 (1 - below average, 3 - average, 5 - above average) the committee rated petitioner 2 in teaching effectiveness, 2 in research and creative activity, between 2 and 3 in service and 2 in overall quality. Upon the first evaluation, the Department Chairman, Dr. Robert Bowman, voted that he was opposed to granting tenure. He rated Rosner between 2 and 3 in teaching effectiveness, 1 in research and creative activity, between 3 & 4 in academic advisement, between 2 & 3 in service and 2.33 in overall quality. The Chairman also found that Rosner's talents and resources did not fit the needs, plans and goals of the Department. Upon reconsideration at petitioner's requests the advisory committee and the Chairman rated Rosner 2.5 in teaching effectiveness, 1.5 in research and creative activity, 2.5 in service activities and 2.0 as the overall evaluation. (Attachments 1 through 4 of Exhibit 1 lists the material relied upon in arriving at these ratings). The Department therefore recommended "denial of tenure and absolute termination at the end of the 1974-75 contract period." The Dean of the College of Social and Behavioral Sciences, Dr. Travis Northcutt, having the choices set forth on a form to recommend either the granting, denying or deferring of tenure, voted to recommend the denial of tenure in Rosner's case. He based this decision on a full review of all materials submitted by Rosner and the file sent by the Chairman. The Vice president for Academic Affairs, Dr. Carl Riggs, also recommended that tenure be denied. On March 15, 1974, Dr. Riggs notified petitioner of his decision not to recommend to President Mackey that Rosner be granted tenure. Petitioner was further notified by the same letter that "your employment will not be renewed after Quarter III of the academic year 1974/75." Petitioner was further advised of the opportunity for review of cases in which a faculty member asserts that his contract of employment is not being renewed for constitutionally impermissible reasons. Upon petitioner's request, Dr. Riggs explained in writing the reasons for the non-renewal of petitioner's appointment. The reasons listed related to the denial of tenure. This memorandum is dated June 19, 1974. On December 13, 1974, Dr. Bowman wrote petitioner a letter denying his request to be considered for tenure for 1975-76 for the current (1974-75) evaluation cycle, because of the previous decision to deny tenure and terminate his appointment effective June 19, 1975. On May 22, 1975, Dr. Rosner filed his complaint with the University President and asked that it be referred to the Academic Relations Committee. After receiving the Committee's report dated June 18, 1975, the President determined that he was not prepared to render a decision in petitioner's favor, and ordered that the complaint be considered in a plenary proceeding as defined in F.A.C. 6C-5.08(3). On July 16, 1975, the Division of Administrative Hearings received a letter from Steven Wenzel, General Counsel of the University, requesting, on behalf of the President that a Hearing Officer be assigned to conduct the plenary hearing. The undersigned Hearing Officer was so assigned, and, on July 31, 1975, notified Dr. Rosner of certain procedural problems relating to the complaint. Between this date and the date of the prehearing conference in this matter, numerous inquiries were made by the undersigned to the petitioner and his counsel as to the status of the case and anticipated dates for a hearing. Little, if any, response was forthcoming until early October, when this case, along with six others, was set for prehearing conference. On September 6, 1975, Dr. Rosner sent a letter to president Mackey stating: "Because it now appears that the administrative hearing in my case will not be scheduled until after classes begin for the fall term, I am requesting that I be given an interim faculty appointment, beginning with the fall term and continuing until the case is decided." Dr. Mackey responded on September 12, 1975, that ". . .Inasmuch as your contract expired according to its terms following the tendering of the appropriate notice of non-renewal, I am not prepared to direct that you be reemployed during the pendency of your hearing."
Recommendation Based upon the findings of fact and conclusions of law recited above, it is recommended that the complaint be dismissed for the reasons that petitioner did not meet his burden of demonstrating that the decisions to deny tenure and to not renew his employment contract were unlawful. Respectfully submitted and entered this 29th day of December, 1975, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings Room 530, Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of December, 1975.
The Issue The issues presented for determination in this matter are as follows: Can the status of tenure be denied, as opposed to being granted or postponed, during the fifth year of employment? Was the tenure decision in this case based upon constitutionally impermissible reasons or a result of noncompliance with written standards, criteria or procedures prescribed by the Board of Regents or university regulations? Did respondent wrongfully determine that petitioner's employment contract would not be renewed beyond June of 1975? Was petitioner wrongfully terminated before he received a due process hearing?
Findings Of Fact Based upon the admissible oral and documentary evidence adduced in this cause, the following pertinent facts are found: Prior to coming to the University of South Florida in 1969, petitioner's educational and employment background was as follows. In 1951, petitioner received his high school diploma from a night school in Cincinnati, Ohio. After he was discharged from the United States Air Force in 1957, he worked as a commercial pilot, a Kentucky State Trooper, a sales executive, independent consultant and instructor for several private industries, and was active in the Civil Air Patrol. Petitioner completed his Bachelor of Science degree in Commerce in 1966 and his Master of Arts degree in Economics in 1967 at the University of Kentucky. During his masters program, he was awarded a nonteaching graduate fellowship and was admitted to Omicron Delta Epsilon, an economics honorary fraternity. In 1967, petitioner entered the Ph.D. program in marketing, minoring in finance, at the University of Iowa in the College of Business Administration. While attending school between 1967 and 1969, petitioner had an academic fellowship and taught an introductory course in marketing at the University of Iowa. He was enrolled in this program when he applied for a teaching position in marketing with respondent in March of 1969. In response to his application for a teaching position at the University of South Florida, petitioner received a letter from the Chairman of the Marketing Department stating in part, "This assistant professorship opening calls for a person holding the Ph.D. or D.B.A. degree, or expecting completion of the degree in 1969 or early 1970." On the Personnel Data Form required to be completed by respondent, petitioner stated that he would be available in September of 1969, preferred a full-time teaching and research position as assistant professor of marketing and expected to receive his Ph.D. from the University of Iowa in February or June of 1970. Petitioner's appointment as Assistant Professor of Marketing in the College of Business Administration was confirmed by President John S. Allen in April of 1969, and he continued in that position until June of 1975 under six annual contracts. At the time of his appointment to USF in 1969, petitioner had completed the course work for his Ph.D. in the College of Business Administration at the University of Iowa, but had not yet completed all, of his comprehensive examinations. In 1970, petitioner was unsuccessful in two attempts to pass the economic theory comprehensive written examination. Because of this and his low grades, he was terminated from the Ph.D. program in the College of Business Administration. In June of 1970, petitioner enrolled in the University of Iowa College of Education doctoral program majoring in business education. He first failed the marketing examination in the College of Education, but later passed it with reservations. Having completed his comprehensive examinations in that program, petitioner returned to USF to teach. The testimony and evidence is conflicting as to whether petitioner's colleagues and department chairman had knowledge that petitioner was no longer pursuing his Ph.D. degree in business administration. Many of petitioner's colleagues testified that they had no such knowledge. While his chairman stated that he knew of petitioner's educational status, he advised the USF Vice- President for Academic Affairs in March of 1974 that petitioner was pursuing his degree from the College of Business at the University of Iowa and that he was "not pursuing a degree in Distributive Education as was alleged." Petitioner's progress on his doctoral dissertation is somewhat in dispute. Apparently, in July of 1971, he submitted a research proposal entitled "Sales Training and Placement of the Disadvantaged," and an informal doctoral student seminar was held on July 28, 1971 to critique the proposal. However, in June of 1972, the Chairman of Business Education at the University of Iowa informed petitioner that "the next step in our program will be for you to develop your research proposal for your dissertation and submit it to me." There was no evidence that Petitioner has done any significant work toward the completion of his dissertation since the submission of his proposal in July of 1971, despite a written warning from his department chairman at USF in June of 1973 that "it is essential that you make substantial progress on your doctoral degree," and a memo dated January 17, 1974, from Dr. Kallaus at the University of Iowa Business Education Department stating that "the dissertation just has to have 'top billing' in order for you to complete your program within the time requirements." Apparently, petitioner has until February of 1978 to complete his dissertation for the Ph.D. in the College of Education at the University of Iowa. Petitioner would still like to obtain his Ph.D. degree but does not know when he will do so. He states that he does not place great emphasis on the actual worth of a dissertation and considers it to be just another research project. While one witness testified that writing a dissertation had not helped him much, every other witness who had written a dissertation and attained his Ph.D. felt that the writing of a dissertation was extremely valuable in teaching, in grading papers, in relating to students and in the acquisition of research skills. There was testimony from two of petitioner's colleagues in the Department of Marketing that in the Fall of 1971, petitioner asked them both if they would be willing to write a portion of his dissertation for him. These conversations were never reported to the Chairman, the Dean or any other person, with the possible exception of one other faculty member. Thus, it does not appear that this played any part in the tenure decision under consideration herein. Petitioner denied having ever asked anyone to write his dissertation. While he may have asked for help with the mechanics of using the computers or the refinement of statistics, the research proposal was already completed and thus he needed no further help, according to petitioner. As noted above, petitioner was continuously employed under annual contracts as an assistant professor of marketing, a tenure-earning position, from September of 1969 through June of 1975, and received pay raises each year. During this period of time, annual evaluations for the purpose of pay raises were performed. For the fiscal year 1972/73, petitioner ranked sixth out of eleven in priority for a pay raise. On a five point scale, the department chairman ranked petitioner three on teaching effectiveness, and four on research and creative activity, academic advisement, service and overall quality. For the fiscal year 1973/74, a committee consisting of five faculty members rated petitioner on a three point scale as a two in the areas of teaching effectiveness, research and creative activity, academic advisement, service and overall quality. The committee noted that the rating on teaching effectiveness was a high two, while the research rating was a low two. For the same year, petitioner was rated by his chairman as three in teaching effectiveness and two in the other four areas. Petitioner was again evaluated in July of 1975. The faculty evaluation committee rated him between 2.0 and 2.6 on a three-point scale in all five areas; and the chairman rated him as a one in all categories except service, for which petitioner was rated as a two. At the time petitioner was hired by respondent, the Florida Board of Regents and the respondent defined tenure as that condition attained through highly competent research and teaching, or other scholarly activities, length of service, and contributions to society. The guidelines for tenure from that time to the present include a requirement for a high degree of competency in the areas of teaching, research or other scholarly activities and service. It has also been a guideline that normally the faculty member shall have completed five years of continuous service and shall have attained the terminal degree before being eligible for tenure. In addition to these written criteria and guidelines for tenure promulgated by the Florida Board of Regents and adopted by respondent, tenure was discussed by various witnesses. It was opined that in order to receive tenure, a faculty member should be of above average competency in at least two of the three areas of teaching, research and service. Others stated that a faculty member should be above average in all three areas, unless he clearly excelled in one area. Still another felt that the faculty member should excel in all three areas before being granted tenure. Average was defined in terms of everyone in the profession, not merely those in one's particular department or college. It was explained that the importance of having a terminal degree is that such a degree implies that certain standards of competence have been met. The status of tenure is important in that it guarantees the faculty member academic freedom and it gives the University time to evaluate how the faculty member will use such freedom. The Dean of petitioner's College further felt that an important criteria or guideline to be used in determining tenure recommendations is the high probability of continued high quality performance and professional growth in the faculty member, as well as the availability of significantly better qualified people, at equal cost, outside the University. It was agreed that with the coming of a new Dean in the Fall of 1973, more emphasis has been placed on research in the College of Business Administration. In January of 1974, which was the middle of his fifth year of continuous employment at USF, petitioner was considered for tenure. Pursuant to this, he prepared what is known as a "tenure packet" for consideration by those who would be voting on the issue. AT this time, it was the practice for the tenured faculty members of the Marketing Department to review said tenure documents and vote by secret ballot as to whether the petitioner would be granted, denied or deferred tenure status. Comment was also solicited by the department chairman from the nontenured faculty members. At this point the chairman reviewed all materials presented and made his recommendation to the Dean of the College of Business Administration, and the Dean made his recommendation to the Vice-President for Academic Affairs. In this case, petitioner prepared his "tenure packet," utilizing a standardized form and supplementing it with additional materials and correspondence. Petitioner's "packet" was approximately one inch thick and was reviewed by all those casting a vote on the tenure issue. After reviewing said packet, the three tenured faculty members of the Department of Marketing unanimously voted to grant petitioner tenure. At least two of the three tenured members also wrote letters of recommendation on his behalf. Several other persons from outside the Marketing Department also wrote letters of favorable recommendation to the department chairman. The chairman also solicited the responses of nontenured department faculty members by means of a peer evaluation form. Apparently, these forms were not utilized by said faculty members in the manner contemplated. Some apparently did not respond at all, and those who did provide a written response did so by comments, rather than by assigning numerical ratings to the items for evaluation. One faculty member concluded that petitioner "is qualified in view of his outstanding relationships with the local business community." Another refused to pass judgment upon the tenure issue inasmuch as he felt tenure should be abolished. However, he did relate to the chairman that he felt that the research and writing presented in petitioner's tenure document was methodologically questionable. He also questioned the reliability of the survey taken by petitioner to support his teaching ability and the inclusion of formal and informal letters and evaluations dealing with the distributive education courses taught by petitioner through the College of Education (See Finding 12 below). This same faculty member wrote favorably of petitioner's accomplishments in the area of service, but concluded that petitioner "would perhaps find more satisfaction and more recognition of his accomplishments in the area of distributive education than in the Marketing Department." A third non-tenured faculty member suggested that there was a degree of bias with regard to the questionnaire soliciting comments regarding petitioner's teaching effectiveness and that it was impossible to determine whether the data obtained refers to marketing or distributive education courses. This faculty member also felt that petitioner's talents and interests lay elsewhere than in the Marketing Department and that one who would make a greater contribution to the Marketing Department could be obtained at a lower price. He therefore did not feel that petitioner should be granted tenure in the Marketing Department. A large portion of petitioner's tenure packet is composed of student comments received as a result of a questionable mailed by petitioner to his former students. Petitioner was of the opinion that evaluation of teachers by graduates after a period of time was more meaningful than the present student evaluations. Department funds were used to mail these surveys and petitioner prefaced it with a letter to his former students. This letter contained the following language: "Many times in class I said that you would never really know the value of your classes until later. Now it is later; and I need your help. As you know my teaching methods and objec- tives are rather controversial. My appli- cation for tenure and promotion must be submitted on January 15th, and I would like to include in this application your comments as to the effect (good or bad) if any, that I as a teacher have had on your career. If you have the time please include a short note on what you are doing. Teachers seldom know what happens to their former students. I want to thank you in advance for doing this on such short notice. Good luck." It was felt by most witnesses questioned on the subject that the use of such a cover letter and the form of the questions contained in the survey could produce only biased results. The chairman of the Marketing Department reviewed the materials discussed in paragraphs 9 through 12 above and recommended that petitioner be granted tenure, concluding that petitioner had maintained a consistent pattern of productivity over the past five years in teaching, research, writing, presenting programs and service. It was believed by the chairman that petitioner's efforts in all areas would continue at a rapid pace and that "it would be difficult if not impossible to replace this man with one so dedicated and with his unique talents considering his present rank and salary." The chairman praised his service activities and called him an innovative teacher. He remarked that "Professor Wallace is the only person in Marketing (other than Professor Stevens) who appears willing to work with Distributive Education or other units of the University on interdisciplinary programs." With regard to the area of research, the chairman remarked in part that "Some of his research efforts have been some- what misdirected to other than scientific or theoretical marketing per se, but the results of such efforts are applicable to Marketing Education, Distributive Education, and general Business Education. His research methodology is at times technically ques- tionable; however, he has been asked to pre- sent papers and be on discussion panels for the Southern Marketing Association and the American Marketing Association. His articles have appeared in refereed and non-refereed journals..." The Dean of the College of Business Administration reviewed petitioner's tenure packet, the secret ballot by tenured faculty members, letters of recommendation, comments by some nontenured faculty members, and the opinions and recommendation of the Department Chairman. The Dean recognized that petitioner had good rapport with students and had emphasized a practical approach in teaching by taking classes out to businesses. However, it was felt that petitioner's skills seemed "more in salesmanship and organizing ability than in academic analysis and scholarship" and that "he would be more at home practicing in the business world than teaching in the academic world." Dean Dye felt that what was lacking in the marketing faculty were persons evidencing a high degree of scholarship and noted that petitioner had not yet completed his doctoral studies. It was felt that good people, with terminal degrees and research drive were available and should be sought, and that it was not in the best interests of the University to grant petitioner tenure. Dean Dye did not philosophically disagree with petitioner's articles, but felt they were neither scholarly nor based on competent research methodology. The Dean has not seen any significant results done in the area of research by petitioner. As for the area of service, Dean Dye felt that petitioner's efforts were above average in quantity, but below average in quality. With Dean Dye's recommendation, the tenure documents were then sent to Dr. Carl Riggs, Vice-President for Academic Affairs. Dr. Riggs declined to recommend the granting of tenure in petitioner's case, thus supporting the recommendation of Dean Dye. When petitioner requested the reasons for his negative recommendation, Dr. Riggs restated the reasons stated or implied in Dean Dye's explanation of tenure recommendation. These were: "1) No terminal degree and lack of compen- sating experience or background. An apparent lack of scholarship, i.e., depth of knowledge in field, and scholarly productivity not sufficiently evident. Your strengths supplement rather than complement those of other faculty in this department and the need for complementation is greater. Interests of the Department and College better served by finding a replacement who can perform or perform better those functions needed by the Department of Marketing and the College of Business Administration." Riggs was of the opinion that the University could attract persons more qualified than petitioner and that petitioner had done no significant research in the area of marketing. While Dr. Riggs may have disagreed somewhat philosophically with the opinion-type articles written by petitioner, he thought they were refreshing. His decision to deny tenure to petitioner was not based on a difference of opinion with the views expressed in petitioner's writings, but rather because he felt petitioner's articles were not based upon competent research methodology. Riggs acknowledged petitioner's success in the area of service and distributive education. Riggs further stated that neither politics nor petty dislikes or jealousies within the College of Business Administration played any part in his consideration of whether petitioner should be granted tenure. The process of evaluation for tenure recommendation was thus completed, having travelled the following route: preparation by petitioner of his tenure packet; the favorable vote of the department's three tenured faculty members; the receipt of comments from some of the nontenured faculty; the favorable recommendation of the Department Chairman; the negative recommendation of the College Dean; and the negative decision of the Vice-President for Academic Affairs. Petitioner was thereafter timely notified on March 15, 1974, by the Vice- President for Academic Affairs that his employment would not be renewed after Quarter III of the academic year 1974/75, and that the last day of employment with the University would be June 19, 1975. Informal grievance proceedings within the university were thereafter instituted by petitioner. Failing to achieve a satisfactory result from such proceedings, petitioner filed his complaint seeking a plenary hearing. This complaint was forwarded to the Division of Administrative Hearings, and the undersigned Hearing Officer was ultimately assigned to conduct the plenary hearing. The evidence presented at the hearing does suggest that there was some unrest and difference of opinion within both the Department of Marketing and the College of Business Administration. It appears that the Marketing Department was divided into two factions, identified by witnesses as the "qualitative" and "quantitative" factions. There was also some dispute within the College regarding Dean Dye's hiring practices and criteria and guidelines for tenure decisions. While much time and evidence was devoted to the existence of these factions and disputes, it cannot be found from the evidence that their existence tainted the procedures for tenure evaluation in this case. The evidence adduced at the hearing clearly illustrates that petitioner's highest level of competence lies in the area of service to the community. He has built a good rapport with many Tampa businessmen and has organized various business meetings and seminars. Many of those businessmen who testified acknowledged that for the first time they were drawn to the University as a result of petitioner's efforts in a Top Management Seminar and a Career Development Program. Some members of the Marketing Department testified that petitioner was the outstanding member of the department in the area of service to the community. The Vice-President for Academic Affairs agreed that petitioner was doing one of the better jobs within the College of Business Administration in the area of service to Tampa businessmen. While a few members of the faculty did not feel that petitioner's presentation at the Top Management Seminar evidenced scholarship, most Tampa businessmen who testified praised petitioner's efforts as demonstrating a contemporary approach to business problems and a working, practical knowledge in the filed of marketing. With regard to petitioner's efficiency in the area of teaching, it has already been pointed out that petitioner received predominantly average to above average ratings by his peers over the six years in question. A number of his former students testified and concluded that petitioner was one of the best teachers they had ever had. They stated that they worked hard in petitioner's classes and learned more in his classes than in other classes. Some testified that petitioner's courses were more difficult and demanding then other business courses. Petitioner stressed the application, rather than the mere memorization, of theory and sent this students out to various businesses to prepare research projects. Some of his former students described him as dynamic, interesting, resourceful and well-prepared for class. Other faculty members thought petitioner to be sincerely interested in practical education and in helping his students. The graduating seniors of 1974 voted petitioner one of the top ten teachers of the University of South Florida. There was evidence that petitioner's student evaluations improved markedly in 1973. One marketing professor attributed this to the fact that petitioner stopped giving written examinations and his students received higher grades. The evidence illustrates that in 1972, petitioner's student evaluations were at approximately the college median level. In 1972, he gave his students 17 A's, 100 B's 34 C's, 4 D's and 11 F's. In 1973 his student evaluations were consistently above the college median level. In that year the grade distribution to students was 138 A's, 64 B's, no C's, 1 D and 1 F. Other reasons were, however, offered for the increase in high grades, such as student motivation, change of teaching methodology and the quality of student who registers for the course based upon the reputation of the teacher as being hard or easy. A faculty member who substituted for petitioner testified that petitioner's students had not read the course syllabus or the textbook. Others testified that. sending students to various businesses to do research projects was not innovative, and that other members of the marketing department utilized similar techniques. Of the three areas for evaluation, it was the conclusion of some that petitioner's weakness lies in the area of research and other scholarly activities in the field of marketing. His progress on his dissertation has been previously discussed. While he has written a number of published articles, the evidence shows that most of these can be classified as opinion articles or essays, rather than as articles based upon competent research methodology. Several articles and papers are in the area of business education, not marketing. There was some testimony that these articles, many of which are variations on the same theme, constituted comments on relevant social issues, and should not be measured on the basis of whether they are scholarly and methodologically sound. Yet, Petitioner attached his professional credentials to these articles and listed them in his tenure documents under the heading of scholarly publications. The Dean of the College of Business Administration and the Vice-President for Academic Affairs, who voted against petitioner for tenure, testified that the main reason for not granting tenure was lack of a terminal degree and lack of evidence of scholarly research. Although some disagreed philosophically with the articles written by petitioner, their vote to deny tenure was not based on this fact, but upon the fact that the articles did not display evidence of competency in scholarly research. Petitioner was instrumental in getting other marketing professors to write articles for Florida Trend Magazine, but he himself did not participate in the writing of the series of articles which appeared. Petitioner also listed in his tenure documents that he was working on a book. There was evidence that no progress, in written form, has been completed to date on said book, although petitioner stated in his tenure documents that "the basic research has been completed." Petitioner did obtain six teaching grants from the State Department of Education. However, these grants were in the area of distributive education or in the field of training teachers and were obtained through the College of Education, not the College of Business Administration. The evidence concerning petitioner's degree of competency in the area of research and other scholarly activities with regard to seminars and outside consulting work is conflicting. While many indicated they were pleased with petitioner's performance in the seminars and consulting work, others expressed displeasure with petitioner's performance. Petitioner has received recognition for his publications. He has presented papers to the Southern Marketing Association, and was nominated for the American Association of Collegiate Schools of Business - Western Electric Fund Award. These presentations were, however, more in the field of business or distributive education than in marketing.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is recommended that the complaint be dismissed for the reason that petitioner did not meet his burden of demonstrating the unlawfulness of the tenure and nonrenewal decisions reviewed herein. Respectfully submitted and entered this 26th day of ,January, 1976, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9676 COPIES FURNISHED: William D. Holland, Jr., Esquire Suite 304, First National Bank Building 215 Madison Street Tampa, Florida 32602 D. Frank Winkles, Esquire & William E. Sizemore, Esquire of Shackleford, Farrior, Stallings & Evans P.O. Box 3324 Tampa, Florida 3324 Dr. Cecil Mackey, President University of South Florida ADM 241 Tampa, Florida
