94-002139
Indira Khurana vs.
Florida A &Amp; M University
Status: Closed
Recommended Order on Monday, July 31, 1995.
Recommended Order on Monday, July 31, 1995.
1STATE OF FLORIDA
4DIVISION OF ADMINISTRATIVE HEARINGS
8INDIRA KHURANA, )
11)
12Petitioner, )
14)
15vs. ) CASE NO. 94-2139
20)
21FLORIDA A & M UNIVERSITY, )
27)
28Respondent. )
30_________________________________)
31RECOMMENDED ORDER
33Pursuant to notice, the above matter was heard before the Division of
45Administrative Hearings by its duly designated Hearing Officer, Diane Cleavinger
55on January 31, February 1 and February 2, 1995 in Tallahassee, Florida.
67APPEARANCES
68For Petitioner: David Brooks Kundin, Esquire
74906 Thomasville Road
77Post Office Box 430
81Tallahassee, Florida 32302
84For Respondent: Bishop C. Holifield, Esquire
90Avery D. McKnight, Esquire
94Florida A & M University
99Office of the General Counsel
104300 Lee Hall
107Tallahassee, Florida 32307
110STATEMENT OF THE ISSUES
114The issue to be resolved in this proceeding is whether Respondent committed
126an unlawful employment practice by allegedly retaliating against Petitioner for
136filing a sexual harassment complaint in violation of Section 760.10(7), Florida
147Statutes.
148PRELIMINARY STATEMENT
150This cause arose upon the filing of a Charge of Discrimination with the
163Florida Commission on Human Relations (Commission) by Petitioner. The
172Commission conducted an investigation and a Notice of Determination of No Cause
184was issued on January 20, 1994. On March 22, 1994, the Commission issued an
198order granting an extension of time to file a Petition for Relief. The order
212required that Petitioner file and serve the Petition for Relief on or before
225April 15, 1994.
228The Petition for Relief was filed untimely on April 18, 1994. However, the
241cause was still forwarded to the Division of Administrative Hearings. The
252Petition for Relief, alleges that retaliatory actions were taken against
262Petitioner after she filed a formal written complaint with the Office of Equal
275Opportunity Programs at Florida Agricultural and Mechanical University (FAMU)
284about ongoing sexual harassment in Physics Department and a letter regarding
295retaliatory actions.
297At the hearing, Petitioner offered the testimony of six (6) witnesses and
309presented twenty-five (25) exhibits, twenty-four (24) of which were admitted
319into evidence, including Dr. Charles Weatherford's deposition. Respondent
327testified in her own behalf and offered the testimony of five (5) witnesses.
340Additionally, Respondent presented thirty (30) exhibits, twenty-nine (29) of
349which were admitted into evidence, including Dr. Indira Khurana's deposition.
359After the hearing the parties submitted Proposed Recommended Orders on May
37022, 1995. The parties' Proposed Findings of Fact have been considered and
382utilized in the preparation of their Recommended Order, except where such
393findings were irrelevant, immaterial, cumulative, subordinate or not shown by
403the evidence. Specific rulings on the parties' Proposed Findings of Fact are
415contained in the appendix to this Recommended Order.
423FINDINGS OF FACT
4261. Respondent, Florida Agricultural and Mechanical University (FAMU), is a
436state university located in Tallahassee, Florida. Dr. Frederick S. Humphries is
447the President at FAMU. Dr. Richard A. Hogg is the Provost and Vice President
461for Academic Affairs at FAMU.
4662. The University offers a liberal arts education with majors in many
478areas, including physics. The University also offers masters and doctoral
488programs, as well as post-doctoral programs. Physics is one of the departments
500which offers post-doctoral opportunities.
5043. The Physics Department operates under the College of Arts and Science
516at FAMU. Dr. Aubry M. Perry is the Dean of the College of Arts and Science at
533FAMU. Dr. Charles A. Weatherford is a Professor of Physics and Chairman of the
547Physics Department. Neither faculty or staff members of the University can hire
559Petitioner for employment at FAMU. Such personnel however, could recommend that
570Petitioner be employed at FAMU. Only Dr. Humphries and Dr. Hogg had authority
583to hire Petitioner for employment at FAMU and to establish the terms and
596conditions of that employment.
6004. A breakdown of the courses taught in the Physics Department are as
613follows. General Physics is a Calculus based physics course for science and
625engineering majors and is extremely rigorous. The General Physics course is an
637extremely high visibility course and is the most important course in the Physics
650Department for which professors have to do the best job. Consequently, the
662strongest professors are going to teach this course.
6705. College Physics is a non-calculus based course that is taken
681principally by allied health majors and by biology majors who are not going into
695graduate biology study. College Physics is no nearly as rigorous as the General
708Physics course.
7106. Elements of Physics is also non-Calculus based service course required
721by FAMU to fulfill the requirements of general education. This course is below
734College Physics and basically requires simple Algebra and Trigonometry.
743Students enrolled in Elements of Physics are traditionally Pharmacy, Business
753and Architecture majors.
7567. Physical Science is the lowest level course in the Physics Department.
768This course is a service course for non-science majors. The Physical Science
780course encompasses several disciplines including physics, chemistry, geology,
788metorology, astronomy, earth science, and oceanography. The course is non-
798rigorous and requires very elementary Algebra and Trigonometry skills.
8078. The post-doctoral (post-doc) opportunities offered in the Physics
816Department are usually ties to grants or contracts for research which the
828University has received from a third party. The purpose of creating post-
840doctoral opportunities is to provide an opportunity for doctoral graduates to
851get experience that will enhance that person's resume and opportunity for
862getting a job in academia or elsewhere. Post-doc work enables a doctoral
874graduate to do research and develop research experience in the graduate's chosen
886filed of physics. Such research associates or adjunct professors are generally
897at the University under a specific grant or contract which pays that persons
910salary. In short, the position and money for post-doc come from a specific
923grant or contract. Therefore, once the grant or contract expires or is
935terminated the post-doc position expires or is terminated.
9439. Importantly, every grant or contract has a primary investigator (PI)
954responsible for contract administration and compliance. These PI's are
963responsible for the ultimate allocation of funds for work or activities which
975support the research contemplated under a given contract. However, these PI's
986cannot employ any post-doc, but can only recommend such employment and
997demonstrate that the position is provided and paid for in the contract or grant
1011for which the PI is responsible.
101710. Relevant to this proceeding, were one contract and one grant for
1029research between FAMU and the United States Air Force and FAMU and the United
1043States Army, respectively.
104611. Petitioner, Indira Khurana, is a native of India. She received her
1058Bachelors and Masters Degrees from Meerut University in India. In 1988,
1069Petitioner received a Ph.D. in Physics from Roorkee University in India,
1080specializing in Anatomic and Molecular Physics. After she had received her
1091Ph.D., she worked as post-doctoral student for two (2) years and then lectured
1104at Birla Institute of Technology and Science in India during the period of
1117February, 1990, to July 1991. Between July, 1991, and January, 1992, Petitioner
1129was with her husband in Vancouver, Canada and did not work.
114012. During Petitioner's stay with her husband in Vancouver, Petitioner was
1151looking for another post-doc position in physics. In October of 1991,
1162Petitioner wrote a letter to Dr. Ashok Jain applying for employment at FAMU and
1176enclosed here curriculum vitae. Dr. Jain was then a Professor of Physics in the
1190Physics Department on a tenure track.
119613. Petitioner wrote Dr. Jain because she saw a paper in the library that
1210was published by Dr. Jain and Dr. Baluga and was interested in the work they
1225were performing. Petitioner did not know Dr. Jain before coming to FAMU.
1237However, she did know Dr. Baluga.
124314. In 1991, Dr. Jain was the Principal Investigator (PI) on a U.S. Air
1257Force contract and a co-PI on a U.S. Army grant. In a letter dated October 8,
12731991, Dr. Jain responded to Petitioner's letter and thanked Petitioner for her
1285initial letter of inquiry and the enclosed vitae. Dr. Jain did discuss in the
1299letter the possibility of a post doctoral position in April-May, 1992, or
1311earlier. Dr. Jain did not mention in his letter that Petitioner would be
1324employed for a period of two years at FAMU and indicated that Petitioner would
1338be recommended for the position. Dr. Jain did not have authority to hire
1351Petitioner for employment at FAMU. Dr. Jain could only recommend that
1362Petitioner be hired at FAMU.
136715. Petitioner testified that later, in November of 1991, she received two
1379(2) letters from Dr. Jain in the same envelope. The envelope was postmarked on
1393November 7, 1991. One letter was dated November 1, 1991, and was written to
1407Petitioner from Dr. Jain. The other letter was dated November 12, 1991,
1419addressed to Dr. Eva C. Wanton, Dean, School of General Studies, FAMU, from Dr.
1433Charles A. Weatherford, Professor and Chairman, Physics Department, College of
1443Arts and Science, FAMU. Petitioner testified that it takes four (4) to five (5)
1457days for mail to reach Vancouver, Canada, from Tallahassee, Florida, and that
1469because the envelope was postmarked November 7, 1991, the two (2) aforementioned
1481letters probably were received by her on November 12, 1991. Petitioner asserted
1493that she did not discuss the contents of either of the letters with Dr. Jain.
150816. In the letter dated November 1, 1991, Dr. Jain indicated that a
1521Research Associate Fellowship position was available which would be funded by
1532the U.S. Air Force contract and U.S. Army grant. The amount of the fellowship
1546was listed to be $23,000 for twelve (12) months. Dr. Jain did not mention in
1562the November 1, 1991, letter that Petitioner would be employed with FAMU for a
1576period of two (2) years. Dr. Jain did ask that Petitioner indicate whether she
1590would accept the fellowship in writing as soon as possible and also indicate
1603when she could join the Physics Department at FAMU.
161217. The November 12, 1991, letter to Dr. Wanton from Dr. Weatherford was
1625for the sole purpose of supplying information to Dr. Wanton's office to begin
1638the process of applying for a J1 visa for Petitioner. A J1 visa would permit
1653Petitioner to enter the United States as long as she worked in a post-doc
1667position at FAMU. The letter was prepared by Dr. Jain for Dr. Weatherford's
1680signature and eventual approval by Dr. Perry. Dr. Weatherford signed the letter
1692without seriously examining its contents. However, the evidence was clear that
1703the letter was not an offer of employment to Petitioner or intended to be part
1718of an employment contract involving Petitioner.
172418. Dr. Eva C. Wanton, Dean of School of General Studies, serves as the
1738Responsible Officer for the Visiting Scholars Program at FAMU. As the
1749Responsible Officer, Dr. Wanton prepares forms to invite scholars, students, and
1760researchers to FAMU from foreign countries. Dr. Wanton has been the Responsible
1772Officer at FAMU for twenty (20) years. Dr. Wanton's office assisted the Physics
1785Department in obtaining a J1 visa for Petitioner.
179319. In order to obtain a J1 visa from Dr. Wanton's office, a letter must:
1808(1) be submitted from the person wanting to invite the scholar, student or
1821researcher to FAMU; (2) be signed by the dean of college or school inviting the
1836individual; and (3) contain certain information that Immigration requires on the
1847IAP-66 form such as place of birth, date of birth, the person's title in the
1862country the individual is coming from. The IAP-66 forms are kept in a locked
1876location in Dr. Wanton's office and are serially numbered for tracking purposes.
1888Such security is necessary because the forms if stolen can be used by any person
1903to gain entry to the United States.
191020. Once this letter is submitted in the manner described above, Dr.
1922Wanton's office then can complete the IAP-66 form which is necessary to obtain a
1936J1 visa. The November 12, 1991, letter met these criteria.
194621. The IAP-66 form is issued to the individual prior to the beginning of
1960employment and is used to bring the individual into the United States. The IAP-
197466 form is an immigration document not an employment document or contract. Dr.
1987Wanton's office can only process and issue initial IAP-66 forms for a one (1)
2001year period. The forms can be renewed up to three (3) years. However, Dr.
2015Wanton's office only renews the form on an annual basis. One reason for the
2029annual issuance and renewal of the IAP-66 forms is that FAMU only receives
2042funding for research contracts and grants one year at a time.
205322. Dr. Wanton's office fills in the information on the IAP-66 form based
2066on the letter requesting the J1 application. Dr. Wanton testified that the
2078information contained in the request letter is used in filling out the IAP-66
2091form except for the employment period.
209723. Dr. Wanton also testified that the copy of the November 12, 1991,
2110letter which Petitioner allegedly received but did not carry the actual
2121signature of Dr. Perry, Dean of the College of Arts and Science, would not have
2136been accepted by her office and would have been returned to Dr. Weatherford to
2150obtain Dr. Perry's signature. The original version of the November 12, 1991,
2162letter with Dr. Perry's actual signature does not indicate that he approved the
2175contents of the letter but that he approved Petitioner to be considered for a J1
2190visa. After the IAP-66 form was completed for Petitioner, the form was picked
2203up by someone from the Physics Department. The Physics Department was
2214responsible for getting the IAP-66 form to Petitioner. The Physics Department
2225did not receive the original or a copy of the November 12, 1991, letter from Dr.
2241Wanton's office. The original letter was retained by Dr. Wanton's office.
225224. Petitioner explained that she though she was entitled to two (2) years
2265of employment based on the copy of the November 12, 1991, letter from Dr.
2279Weatherford to Dr. Wanton but which was not signed by Dr. Perry. However,
2292Petitioner provided no substantial, competent evidence that she received the
2302copy version of the letter dated November 21, 1991, from Dr. Weatherford to Dr.
2316Wanton absent Dr. Perry's signature in the envelope postmarked November 7, 1991.
2328Petitioner's assertion that she received that letter as previously indicated is
2339not credible given the date on the letter, the mail time between Tallahassee and
2353Vancouver the postmark of November 7, 1991, on the envelope and the fact that
2367the November 12, 1991, letter was time-stamped received in the School of General
2380Studies on November 13, 1991, at 1:33 p.m.
238825. Petitioner did received a copy of the version of the November 12,
24011991, letter containing Dr. Perry's signature from Dr. Wanton's office in April
2413of 1992.
241526. In any event, Petitioner, was under the mistaken impression that her
2427research fellowship would be for two years. That impression came solely from
2439Dr. Jain, who FAMU learned after the events of this case occurred had a tendency
2454to overstate his authority and to think he had more authority than he, in fact,
2469had.
247027. On the other hand, Petitioner acknowledged that she neither signed nor
2482received a formal employment contract with FAMU that covered a period of two (2)
2496years. Petitioner's counsel also stipulated to the fact that Petitioner had no
2508formal employment contract with FAMU for a period of two (2) years. Petitioner
2521testified that neither Dr. Humphries nor Dr. Hogg made her an offer of
2534employment for a period of two (2) years.
254228. Further, Petitioner indicated that she provided a response to Dr.
2553Jain's letter to her dated November 1, 1991, and to Dr. Weatherford's letter to
2567Dr. Wanton dated November 12, 1991. Petitioner claimed that she sent two (2)
2580letters of acceptance but that she did not have a copy of the first letter of
2596acceptance. Petitioner also claimed that her letter to Dr. Jain, dated November
260816, 1991, was the second letter of acceptance. In the November 16, 1991,
2621letter, Petitioner indicated that she would fill the post-doc position in the
2633first week of January, 1992. The letter did not mention a term of employment.
264729. No substantial, competent evidence was presented to support
2656Petitioner's allegation that she had indeed sent two (2) letters of acceptance.
266830. Petitioner received an IAP-66 form from FAMU that covered a one year
2681employment period of January 1, 1992, to December 31, 1992. Petitioner had to
2694have this form and information to enter into the United States. The IAP-66 form
2708listed the amount of Petitioner's salary to be $23,000.00 per year.
272031. Petitioner arrived in the United States on January 7, 1992, and
2732started work at FAMU on the following day.
274032. Petitioner was issued and signed four (4) different formal employment
2751contracts to cover the period of employment from January 7, 1992, to December
276431, 1992, as a Research Associate. The aforementioned contracts expired by
2775virtue of their own terms. These formal employment contracts had the
2786appropriate approval signature of Vice President of Academic Affairs and Provost
2797Richard Hogg, and recommending signatures of Dr. Franklin Hamilton, Dr. Aubrey
2808Perry and Dr. Charles Weatherford. Petitioner was an Other Personal Services
2819(OPS) employee who was paid $15.00 an hour. Petitioner also signed the FAMU
2832Employment Eligibility Verification 1-9 Form, which stated that Petitioner's
2841employment eligibility expired on December 31, 1992. As acknowledged by
2851Petitioner and stipulated to by Petitioner's counsel, Petitioner received no
2861benefits at FAMU other than her paycheck while employed.
287033. The evidence was clear that Petitioner was fully aware that FAMU's
2882obligation to employ her ceased on December 31, 1992, even though she may have
2896initially hoped for a longer term of employment before she came to the United
2910States.
291134. On August 31, 1992, Petitioner filed a written complaint with the
2923Office of Equal Opportunity Programs at FAMU. At that time the director of the
2937Office of Equal Opportunity Programs at FAMU, was Ms. Mary R. Vaughn.
2949Petitioner alleged that she had been sexually harassed by Dr. Jain. When
2961Petitioner filed her complaint, she received from Ms. Vaughn a copy of Rule 6C3-
297510.103, Florida Administrative Code, Discrimination and Harassment Complaint
2983Procedures. Ms. Vaughn also provided Petitioner with FAMU's Policy Statement on
2994Non-discrimination. FAMU's Policy Statement on Non-discrimination was also
3002posted in the Physics Department and observed by Petitioner.
301135. Subsequently, Petitioner wrote a letter dated October 7, 1992, to Ms.
3023Vaughn alleging that "retaliatory actions" had been taken against her since she
3035had filed her complaint against Dr. Jain. The two (2) "retaliatory" issues
3047mentioned in Petitioner's letter concerned her mail-slot and library photocopy
3057card both of which had been taken away from her. The letter mentioned also the
3072issues of the continuation of Petitioner's formal employment contract beyond
3082December, 1992, that a salary balance of $600.00 was due to her, and that Dr.
3097Jain had fraudulently charged $21.66 to her husband's telephone number in
3108Vancouver, Canada.
311036. In conducting the investigation of Petitioner's complaint of sexual
3120harassment and retaliation, Ms. Vaughn prepared one (1) report and submitted
3131that report to Dr. Humphries pursuant to Rule 6C3-10.125, Florida Administrative
3142Code. Ms. Vaughn's report addressed Petitioner's sexual harassment complaint
3151and retaliation complaint. Ms. Vaughn found that Dr. Jain had sexually harassed
3163Petitioner. She did not find that any retaliatory action had been taken by
3176anyone in the Physics department other than Dr. Jain regarding her library card.
3189Ms. Vaughn made several recommendations including that: (1) disciplinary action
3199be taken against Dr. Jain in the manner of formal disciplinary action and that
3213he be non-renewed as a professor; (2) Dr. Weatherford assume supervisory
3224responsibility of Petitioner; (3) Petitioner's employment as a Research
3233Associate be continued from January 1, 1993 to June 18, 1993, at a rate of
3248$15.00 per hour; (4) Petitioner be provided with appropriate documentation to
3259obtain a work visa extension through June 18, 1993; (5) Petitioner be re-issued
3272a library photocopy card; (6) Petitioner be reassigned a mail-slot in the
3284Physics Department; (7) Petitioner be paid the sum of $600.00; and (8)
3296Petitioner pursue external remedies available to her by her telephone service
3307carrier for appropriate credit to her personal telephone account.
331637. Ms. Vaughn prepared and signed a letter for Dr. Humphries dated
3328December 16, 1992, which indicated that the University had determined that
3339Petitioner's sexual harassment complaint had merit. Before signing the letter,
3349Ms. Vaughn discussed the contents of the letter with Dr. Humphries. Dr.
3361Humphries adopted the aforementioned recommendations contained in Ms. Vaughn's
3370report in an attempt to be "more than fair" to Petitioner even though
3383continuation of employment was not required. The December 16, 1992, letter
3394outlines the actions that were taken to provide further remedy and to settle of
3408Petitioner's complaint as based upon Ms. Vaughn's recommendations including the
3418non-renewal of Dr. Jain.
342238. FAMU decided to non-renew Dr. Jain rather than terminate him because
3434the process is easier than firing. Dr. Jain denied the sexual harassment and
3447contested his non-renewal and more than likely would have contested any
3458dismissal for the same reasons. FAMU's decision was upheld through the appeal
3470including arbitration. However, irrespective of FAMU's decision to no-renew Dr.
3480Jain as opposed to dismissal, Dr. Jain would have remained at FAMU pending the
3494outcome of his employment litigation. In short, the fact that Dr. Jain remained
3507at FAMU for a short time while Petitioner was still at FAMU was not a
3522retaliatory action on the part of FAMU and FAMU attempted to alleviate the
3535situation by placing Dr. Weatherford in a supervisory position over Petitioner.
354639. Dr. Weatherford wrote a letter evaluation of Petitioner, dated
3556November 2, 1992, which was generated at Ms. Vaughn's request. In the letter,
3569Dr. Weatherford evaluated Petitioner's work-performance on the U.S. Air Force
3579contract for the year of 1992. This letter was based on an interview with
3593Petitioner conducted by Dr. Weatherford to determine her knowledge of electron
3604molecule scattering. Both Dr. Weatherford and Petitioner stated that the letter
3615was a fair evaluation. The letter did factor into Ms. Vaughn's recommendation
3627to extend Petitioner's employment on a review of the U.S. Air Force contract
3640under which Petitioner was hired. The Army grant had expired. The U.S. Air
3653Force contract required that technical effort must be completed no later than
3665June 18, 1993. Petitioner was providing technical effort on the U.S. Air Force
3678contract. Therefore, it was appropriate for Petitioner to continue her
3688employment under that contract until its termination date on June 18, 1993. The
3701fact that Petitioner was not extended further was not retaliatory since
3712Petitioner was never entitled to employment beyond the term of the contracts she
3725signed with FAMU and certainly not beyond the term of the remaining Air Force
3739contract under which she had been employed in a post-doc capacity. There is
3752simply no adverse employment action when an employment contract expires by its
3764own terms.
376640. Petitioner's employment with FAMU was extended from January 1, 1993,
3777to June 18, 1993. Petitioner also received a J1 visa for this period of time.
379241. Furthermore, Petitioner provided no substantial, competent evidence
3800that Dr. Jain had authority to bind FAMU to employ Petitioner for a period of
3815two (2) years. Dr. Jain and Dr. Weatherford could only recommend Petitioner for
3828employment at FAMU. Petitioner also recognized that Dr. Jain alone could not
3840hire her and that Dr. Jain had to get approval from others before she could be
3856hired. Consequently, Petitioner suffered no adverse employment action because
3865once Petitioner's formal employment contract came to an end the employment
3876relationship between FAMU and Petitioner ceased to exist.
388442. Petitioner provided no competent, substantial evidence that she was
3894retaliated against because her mail-slot was taken away. The mail-slot was not
3906a guaranteed coemployment benefit, but was provided for the benefit of the
3918University in its mail distribution system. In addition, the mail-slot was
3929taken away. The mail-slot was not a guaranteed employment benefit, but was
3941provided for the benefit of the University in its mail distribution system. In
3954addition, the mail-slot issue was cured by Dr. Weatherford's letter dated
3965November 5, 1992, to Petitioner indicating that her mail-slot had been
3976reassigned due to a mail-slot shortage. The shortage was not shown to be pre-
3990textual and is a valid reason for distributing scarce University resources.
4001Additionally, the evidence was clear that Petitioner had indicated to the
4012Physics Department secretary that she was worried that Dr. Jain was reading or
4025tampering with her mail. The secretary volunteered to keep Petitioner's mail
4036locked in her desk drawer instead of in a mail slot. Petitioner acquiesced in
4050this action and ceased to use her mail slot for a short time. After her
4065disingenuous complaint regarding the lack of a mail slot, Petitioner
4075acknowledged that her mail slot was returned. Given these facts, the evidence
4087was clear that no retaliatory action occurred in regards to Petitioner not
4099having a mail slot for a short period of time.
410943. There was no substantial evidence which demonstrated that the
4119remaining allegations of retaliatory actions contained in Petitioner's letter to
4129Ms. Vaughn occurred because of retaliation on the part of FAMU. The $600.00
4142shortage in pay was not due to any retaliation and was paid. Admittedly, Dr.
4156Jain attempted to reduce Petitioner's salary when she would not comply with his
4169sexual requests. However, these efforts were part of the original sexual
4180harassment complaint, were stopped and cannot be attributed to FAMU. As
4191testified to by Petitioner and stipulated to by Petitioner's counsel,
4201Petitioner's salary was not reduced while employed at FAMU. Petitioner's bi-
4212weekly salary was $1,200.00 for the period of January 1, 1992, to June 18, 1993.
4228Petitioner was paid $45,720.00 while employed at FAMU, which is $280.00 short of
4242what she would have been paid if she had worked two (2) years for $23,000.00 for
4259twelve (12) months. Petitioner also admitted to the fact that she was paid more
4273money than originally agreed upon after her arrival to FAMU and that she was
4287paid more money than $23,000.00 for twelve (12) months. The retaliation by Dr.
4301Jain involving the phone call was personal retaliation on his part and was
4314neither sanctioned nor condoned by FAMU and is not attributable to FAMU.
4326Moreover, these issues were addressed and resolved in FAMU's handling and
4337resolution of Petitioner's complaints to Ms. Vaughn. FAMU took appropriate
4347action for an employer who has had such complaints brought to its attention and
4361took appropriate steps to remedy the situation once it was aware of Dr. Jain's
4375activity. No retaliatory action can be attributed to FAMU.
438444. In fact, Petitioner, wrote a letter dated January 4, 1993, to Ms.
4397Vaughn. In that letter, Petitioner stated "Thank you very much for settling the
4410matter and helping me in every way. I wish you a very happy new year." The
4426matter that Ms. Vaughn had settled with reference to Petitioner was the sexual
4439harassment complaint and the retaliation complaint. After January 4, 1993,
4449Petitioner did not indicate to Ms. Vaughn that she was not satisfied with the
4463decision rendered as a result of her sexual harassment complaint and retaliation
4475complaint. Other than the aforementioned complaints, Petitioner stated that she
4485did not file any formal complaints with Ms. Vaughn's office even though she was
4499aware of the process.
450345. Petitioner wrote Dr. Weatherford a letter dated January 13, 1993, and
4515indicated that she was interested in filling any openings of regular physics
4527faculty positions available in the Fall of 1993. Petitioner admitted to the
4539fact that she did receive a reply from Dr. Weatherford regarding her letter
4552dated January 13, 1993, in which she requested consideration for a regular
4564faculty position.
456646. Later, Petitioner met with Dr. Weatherford allegedly said that
"4576University does not want to hire you." However, Petitioner provided no
4587substantial, competent evidence that she was retaliated against because of an
4598alleged statement by Dr. Weatherford. Petitioner's assertion is not credible
4608given the testimony by Dr. Weatherford and Ms. Sonja Richardson, the Physics
4620Department secretary, that the phrase "university does not want to hire you" is
4633not consistent in the manner in which Dr. Weatherford speaks and was apparent
4646from listening to Dr. Weatherford at hearing. Additionally, Dr. Weatherford
4656denies making such a statement.
466147. Subsequently, Petitioner wrote Dr. Weatherford another letter dated
4670April 2, 1993, stating among other things that she wanted to be considered for
4684an adjunct faculty position in the Fall of 1993, and requested that her Research
4698Associate assignment be extended until the beginning of Fall of 1993.
470948. In a letter dated April 5, 1993, Dr. Weatherford informed Petitioner
4721that the regular physics faculty positions had not been released by the
4733administration of FAMU and that, if those positions were released, she would be
4746considered for such a position. Dr. Weatherford also explained that
4756Petitioner's Research Associate position could not be extended beyond June 18,
47671993. Dr. Weatherford further stated that Petitioner would be considered for an
4779adjunct position for the Fall Semester of 1993.
478749. Petitioner admitted to the fact that she did receive Dr. Weatherford's
4799letter dated April 5, 1993, and the he did in fact respond to her letter dated
4815January 13, 1993.
481850. Petitioner testified that she taught for three (3) semesters at the
4830Birla Institute of Technology and Science in India beginning February of 1991.
4842While at Birla, Petitioner taught electronics, mathematical physics, optics and
4852rail motion, physical science, and had three (3) labs. During her employment at
4865FAMU, Petitioner testified that she taught two (2) labs in the Spring of 1992,
4879and one (1) course and one (1) lab in the Fall of 1992, and two (2) labs in the
4898Spring of 1993. Petitioner explained that she taught College Physics I and II,
4911and Physical Science Lab repeatedly. Petitioner noted that there was a
4922difference between a course and a lab. Petitioner admitted that the courses and
4935labs she taught were lower level Physics. Petitioner's teaching experience only
4946spanned six (6) semesters.
495051. In March of 1993, Dr. Robin Kennedy filled a tenure-track position in
4963the Physics Department. Dr. Kennedy was a former post-doc of Dr. Jack Crow who
4977is the Director of the High Magnetic Field Laboratory. Dr. Kennedy had been at
4991FAMU for at least three (3) years prior to March of 1993. While at FAMU, Dr.
5007Kennedy worked both as a post-doc and adjunct instructor. Furthermore, Dr.
5018Kennedy established FAMU's Condensed Matter Laboratory.
502452. Petitioner introduced no evidence or testimony that she applied for
5035this position. Furthermore, Petitioner failed to provide any substantial,
5044competent evidence that she was more qualified than Dr. Kennedy to fill this
5057position or that she suffered retaliation by not being hired to this position.
507053. In the Fall of 1993 no regular faculty positions were available.
5082Petitioner provided no testimony or evidence to demonstrate otherwise.
509154. In the Fall of 1994, three (3) regular faculty members were hired
5104including Dr. Mogus Mochena, Dr. Edsel Ammons and Dr. Marion Encinosa. Dr.
5116Mochena was a post-doc at FAMU for at least a year and a half. Dr. Mochena
5132worked part of his time directly with Dr. Weatherford. Dr. Mochena worked part
5145of his time directly with Dr. Weatherford. Dr. Mochena taught as a Graduate
5158Assistant at the University of California, Davis. Dr. Mochena taught General
5169Physics at FAMU.
517255. Dr. Ammons has taught approximately twenty (2) years, with an
5183extensive background in education. Half of Dr. Ammons twenty (2) years of
5195teaching has been as a Ph.D. Dr. Ammons came for Ohio State University and was
5210a post-doc with Dr. Ken Wilson. Dr. Wilson is a Nobel Prize winner. Dr. Ammons
5225was recommended highly by Dr. Wilson. Dr. Ammons also had a favorable
5237recommendation from Dr. Howard Isenburg of the National Science Foundation.
524756. Dr. Encinosa taught at FAMU in the early 1980's for three (3) or four
5262(4) years and then returned in the late 1980's. By 1994, Dr. Encinosa had been
5277at FAMU for some five (5) or six (6) years. Dr. Encinosa was and is an
5293outstanding teacher. Because of his ability, he and Dr. Michael Threapleton
5304were the only adjuncts who were allowed to teach a senior level physics course.
5318The senior level physics course is above General Physics in course difficulty
5330for teaching. While at FAMU, Dr. Encinosa has also taught Quantum Mechanics,
5342Nuclear Physics, Statistics and an honors section of General Physics. During
5353the Fall of 1993, Dr. Encinosa was a Visiting Assistant Professor.
536457. Petitioner introduced no evidence or testimony that she applied for
5375those positions. Furthermore, Petitioner provided no substantial, competent
5383evidence that she was more qualified than Dr. Mochena, Dr. Ammons or Dr.
5396Encinosa to fill those positions, or that she suffered retaliation by not being
5409hired to those positions.
541358. In hiring individuals to adjunct positions, Dr. Weatherford testified
5423that he has to make an estimate, probable a month or two (2) months before each
5439semester starts of what courses will be offered in the Physics Department.
5451Individuals hired to adjunct positions are OPS employees. Providing such an
5462estimate is complicated by the fact that FAMU and FAMU/FSU Engineering School
5474continue to expand at a tremendous rate. Another factor that Dr. Weatherford
5486has to consider is that he does not know, initially, how much money will be
5501available to hire the OPS adjunct instructors. Dr. Weatherford also does not
5513know what classes will materialize because class offerings are determined by the
5525demand of the students taking the class or classes. Dr. Weatherford sends his
5538estimates to Dr. Perry, Dean for the College of Arts and Sciences, who either
5552accepts or rejects the estimate.
555759. Once a schedule of courses is finally completed and accepted, Dr.
5569Weatherford explained that he has to get instructors aligned for the adjunct
5581positions. Individuals are required to fill out formal applications forms and
5592apply for the positions. A curriculum vitae is not an appropriate substitute
5604for completing the formal application and is only a supporting document.
5615Sometimes the paperwork has been completed and people do not get paid because
5628the classes did not make. There have also been times when individuals have been
5642selected to teach a course but cannot be found once classes are started.
5655Consequently, the process in hiring adjunct instructors to teach in the Physics
5667Department is precarious, at best. If Petitioner had applied for an adjunct
5679instructor position, her employment could not have been verified until the
5690projected need for a course or courses had been sufficiently determined.
570160. For the Summer Semester of 1993, Dr. Snezana Dalafave, Dr. Peter
5713William and Dr. Mario Encinosa were hired as adjunct instructors to teach in the
5727Physics Department. Regular faculty members have first dibs on adjunct
5737instructor position and were also hired to teach during the Summer of 1993.
575061. Dr. Dalafave had been an adjunct instructor for at least a year. Dr.
5764Dalafave was teaching about fourteen (14) to fifteen (15) contact hours.
5775Fourteen (14) to fifteen (15) contact hours is considered full time.
578662. Dr. William taught as an adjunct for the first time at FAMU in the
5801Fall of 1992. Before coming to FAMU, Dr. William had post-doc experience and
5814had been working several years at the Super Computer Research Institute (SCRI).
5826Dr. William received very high recommendations of the director of SCRI.
583763. Petitioner provided no substantial, competent evidence that she was
5847more qualified than Dr. Dalafave, Dr. William, Dr. Encinosa or other regular
5859faculty members to be hired as an adjunct instructor in the Physics Department
5872for the Summer of 1993, or that she suffered retaliation by not being hired to
5887any of these adjunct instructor positions were available after June 18, 1993,
5899for the Summer Semester of 1993.
590564. Seven (7) adjunct instructors were hired in the Fall of 1993. Not all
5919of the post-docs were Ph.D. holders but the majority of them were. The adjunct
5933instructors hired were Dr. Salah Aziz, Dr. Mario Enciosa, Ms. Allison Haydel
5945(Ph.D. student at FSU), Dr. Snezana Dalafave, Dr. Romision Nair, Dr. Z. Xiexu,
5958and Dr. Michael Threapleton. All of these individuals had taught at FAMU in the
5972Physics Department before the Fall of 1993 and had more teaching experience than
5985Petitioner. Dr. Dalafave had taught full time for a full year at FAMU. Dr.
5999Xiexu and Ms. Haydel had taught at FAMU for two (2) years. Dr. Aziz had four
6015(4) years teaching experience at FAMU. Dr. Nair had taught at least five (5)
6029years at FAMU. Dr. Threapleton had been teaching for five (5) years at FAMU.
6043Dr. Encinosa had taught more than five (5) years at FAMU. None of the adjunct
6058instructors who were hired in the Fall of 1993 were less qualified than
6071Petitioner.
607265. Petitioner provided no substantial, competent evidence that she was
6082more qualified than Dr. Aziz, Dr. Encinosa, Ms. Haydel, Dr. Dalafave, Dr. Nair,
6095Dr. Xiexu or Dr. Threapleton as an adjunct instructor in the Physics Department
6108for the Fall of 1993, or that she suffered retaliation by not being hired to any
6124of these adjunct instructor positions.
612966. In sum, Petitioner presented no substantial, competent evidence that
6139she was more qualified or senior than others who were hired to fill an adjunct
6154or regular faculty position in the Physics Department in 1993 or 1994.
616667. Petitioner provided no substantial, competent evidence that Dr.
6175Weatherford retaliated against her by accusing her of making international
6185personal telephone calls from the Physics Department. The alleged accusation
6195occurred in a November 2, 1992, letter from Dr. Weatherford to Ms. Vaughn. The
6209letter was generated at the request of Ms. Vaughn for Dr. Weatherford to respond
6223to Petitioner's letter of October 7, 1992, complaining of retaliation over phone
6235calls by Dr. Jain charged to her husband. In order to respond, Dr. Weatherford
6249reviewed the Department's phone records and noted many calls to the Vancouver
6261area. The letter does mention Dr. Weatherford's concern about telephone calls
6272made to Vancouver, the letter is not accusatory in nature. Furthermore,
6283Petitioner admitted that she had made some personal telephone calls from the
6295Physics Department and would reimburse FAMU for those charges. Petitioner also
6306agreed that Dr. Weatherford's concerns were founded. Given these facts, no
6317retaliation can be inputted to Dr. Weatherford and FAMU regarding alleged
6328accusations of improper phone calls.
633368. Finally, Petitioner provided no substantial, competent evidence that
6342she was retaliated against because she "was not allowed to attend an academic
6355meeting at Reno." In fact, Petitioner testified that she could have gone to
6368Reno, Nevada, if she had secured funding to cover the expenses of her trip or
6383had paid for the trip herself. In short, the Petitioner was not prevented from
6397going to Reno, Nevada and attending the conference. Petitioner's assumption
6407that her trip to Reno would be funded through some grant or contract is
6421unfounded especially when Petitioner did not even know whether funds were
6432available at all to cover the expenses of such a trip. Dr. Weatherford
6445testified that when Petitioner asked him about going to Reno he responded that
6458he did not have access to funds to pay for her trip. As indicated by Petitioner
6474in her testimony, attending academic meetings was not part of the employment
6486agreement that she had with FAMU and was not a benefit of employment.
6499Additionally, the lack of funds is a legitimate reason not to send someone to
6513Reno, Nevada for an academic conference.
651969. Although Petitioner stated that she did not get a reference letter
6531from Dr. Weatherford, Petitioner did list Dr. Weatherford as a reference on her
6544Curriculum Vitae. Dr. Weatherford testified that he never wrote any letters of
6556recommendation for Petitioner because she never asked him to do so. Petitioner
6568failed to provide any substantial, competent evidence to rebut Dr. Weatherford's
6579testimony.
658070. Petitioner, however, did receive a letter of recommendation from Ms.
6591Vaughn, Executive Assistant to the President and Director of FAMU Equal
6602Opportunity Programs per Petitioner's written request. Petitioner acknowledged
6610that Ms. Vaughn gave her a good reference letter.
6619CONCLUSIONS OF LAW
662271. The division of Administrative Hearings has jurisdiction over the
6632substance of and the parties to this proceeding. Section 120.57(1), Florida
6643Statutes.
664472. Pursuant to Rule 60Y-4.016(1), Florida Administrative Code, the issues
6654before the Division of Administrative Hearings currently are limited to those
6665issues raised in the Petition for Relief. As a finder of Fact, the Hearing
6679Officer may not rule upon those issues, which are outside of the record and
6693beyond the scope of the hearing. See Sanders v. Bureau of Crimes Compensation,
6706474 So. 2d 410 (Fla. 5th DCA 1985); Brown v. Broward Minority Builders
6719Coalition, Inc., 431 So. 2d 230 (Fla. 1st DCA 1983); and Pompano Roofing
6732Company, Inc. v. O'Neal, 410 So. 2d 971 (Fla. 1st DCA 1982).
674473. Section 760.10(1), Florida Statutes, makes it unlawful to discriminate
6754against a person on the basis of race, color, religion, sex, national origin,
6767age, handicap, or marital status. Federal case law dealing with Title VII of
6780the Civil Rights Act of 1964, as amended, is applicable in construing Chapter
6793760, which was patterned after Title VII. See Florida Dept. of Community
6805Affairs v. Bryant, 586 So. 2d 1205 (1st DCA 1991).
681574. Petitioner has not alleged that FAMU discriminated against her in
6826violation of Section 760.10(1), Florida Statutes.
683275. Petitioner has, without any reference to Chapter 760, Florida
6842Statutes, alleged that FAMU has taken retaliatory actions against her in a
6854discriminatory manner. Presumably, Petitioner is relying upon Section
6862760.10(7), Florida Statutes, which provided that it is an unlawful employment
6873practice for an employer:
6877to discriminate against any person has
6883opposed any practice which is an unlawful
6890employment practice under this section or
6896because that person has made a charge,
6903testified, assisted, or participated in
6908any manner in an investigation, proceeding,
6914or hearing under this section.
691976. In McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), the United
6932States Supreme Court established an allocation of the burden of proof, the
6944requirements for a prima facie case of discrimination and the order for the
6957presentation of proof in Title VII discriminatory treatment cases. In such a
6969case, the employee must first establish by a preponderance of the evidence a
6982prima facie case of discriminatory treatment. See Texas Dept. of Community
6993Affairs v. Burdine, 450 U.S. 248, 252-53 (1981). Under the McDonnell Douglas
7005formula, to establish a prima facie case, the employee must prove (1) membership
7018in a protected group; (2) that the employee was qualified for the position
7031sought; (3) that the employee applied and was not hired for the position sought;
7045and (4) that the position remained open and was ultimately filled by someone
7058from outside of the employee's protected group.
706577. Establishment of the prima facie case creates a presumption that
7076unlawful discrimination occurred. See Burdine, 450 U.S. at 254. This
7086presumption places upon the employer the burden of producing an explanation to
7098rebut the prima facie case. This has generally been described as articulating a
7111nondiscriminatory version of the action complained. Burdine, supra. Once the
7121employer articulates a nondiscriminatory reason for the employment action taken,
7131the employee has an opportunity to demonstrate that the employer's articulated
7142reason is, in fact, a pretext for unlawful discrimination. Thus, the McDonnell
7154Douglas presumption shifts the burden of production to the employer but the
7166ultimate burden of persuading the trier of fact that intentional discrimination
7177occurred remains at all times with the employee. See, Burdine, supra.
718878. Recently, the United States Supreme Court revisited the McDonnell
7198Douglas scheme and the significance of the shifting burden of production
7209relative to the ultimate burden of persuasion in St. Mary Honor Center v. Hicks,
7223113 S. Ct. 2742 (1993). In that case, the Supreme Court notes that once the
7238employer in a Title VII discriminatory treatment case has succeeded in carrying
7250its burden of production regarding a legitimate nondiscriminatory reason for the
7261challenged action, the McDonnell Douglas framework, along with its presumptions
7271and burdens, is no longer relevant. The employer's production whether
7281persuasive or not requires the trier of fact to proceed to the ultimate question
7295of whether the employee has proven that the employer intentionally discriminated
7306against the employee for the unlawful basis alleged. The employee continues to
7318bear the burden of persuading the trier of fact as to the ultimate fact of
7333discrimination even though the trier of fact may conclude that the employer's
7345proffered reason is unpersuasive or even contrived.
735279. Because the employer has the burden of production and not one of
7365persuasion, which remains with the employee, the employer is not required to
7377persuade the trier of fact that its decision was actually motivated by the
7390reason given, but rather must produce a legitimate, nondiscriminatory
7399articulated reason. If the employee satisfies that burden of production, the
7410fact finder must be persuaded by the employee that the proffered reason was
7423really a pretext for intentional discrimination and that burden may be satisfied
7435by showing directly that a discriminatory reason more likely than not motivated
7447the decision or, indirectly, by showing that the proffered reasons are not
7459worthy of belief. See Dept. of Corrections v. Chandler, 582 So. 2d 1183 (1st
7473DCA 1991).
747580. Similarly, in cases involving allegations of retaliation, the employee
7485bears the initial burden of establishing that the complained of conduct resulted
7497because of the employee's prior assertion of protected rights. If the employer
7509articulates legitimate business reasons for its decisions which are not
7519pretextual, the conduct is no retaliatory and, therefore, would not constitute
7530an unlawful employment practice under Section 760.10, Florida Statutes.
753981. Petitioner has not alleged that she was discriminated against because
7550of her involvement in any "investigation, proceeding, or hearing under this
7561section." Therefore, it is assumed that the retaliatory action allegedly taken
7572by FAMU against Petitioner was because she had "opposed any practice which is an
7586unlawful employment practice under this section. . ."
759482. In order for Petitioner to prevail, she was required to first present
7607a prima facie case that (a) she was engaged in a statutorily protected activity;
7621(b) that she suffered an adverse employment action; and (c) that a causal
7634connection between a and c exists. Meeks v. Computer Associates Intern, 15 F.
76473d 1013 (11th Cir. 1994); Canino v. EEOC, 707 F. 2d 468, (11th Cir. 1983).
766283. An "adverse employment action" is defined to be "ultimate employment
7673decisions" which include "hiring, granting leave, discharging, promoting and
7682compensating." PaQe v. Bolger, 645 F. 2d 227, 233 (4th Cir. 1981); Ward v. John
7697Hopkins University, 861 F. Supp. 367, 377 (D. Md. 1994).
770784. Petitioner did engage in statutorily protected activity when she filed
7718here formal complaint of sexual harassment on August 31, 1992, and her letter
7731regarding retaliatory activities dated October 7, 1992.
773885. Petitioner did prove that she is within a protected class based on her
7752opposition to an alleged "unlawful employment practice."
775986. In her letter dated October 7, 1992, the only two (2) "retaliatory
7772actions" mentioned by Petitioner concerned her mail-slot and library
7781photocopying card being taken away from her. Petitioner, however, failed to
7792prove that those "retaliatory actions" were adverse employment actions that were
7803caused by her formal complaint of sexual harassment. Furthermore, those two (2)
7815issues were cured as indicated in Dr. Weatherford's letter dated November 5,
78271992, and Dr. Humphries letter dated December 16, 1992.
783687. In the Petition for Relief, Petitioner stated that her "Research
7847Associate Fellowship" in the Physics Department at FAMU was curtailed in
"7858retaliation" for her filing a complaint against Dr. Jain about ongoing sexual
7870harassment. Petitioner, however, stated in her letter dated October 7, 1992,
7881that the extension of her formal employment contract beyond December 31, 1992,
7893was an unresolved issue.
789788. Petitioner failed to prove that the November 12, 1991, letter from Dr.
7910Weatherford to Dr. Wanton was a formal employment contract or was intended to be
7924used as an alternative to a formal employment contract with FAMU. The letter
7937simply was generated to obtain a J1 visa for Petitioner.
794789. In addition, Petitioner failed to prove that Dr. Jain, Dr. Weatherford
7959or Dr. Perry had authority to bind FAMU to employ her for a two-year period.
7974Once Petitioner's formal employment contract ended on December 31, 1992, she was
7986just unemployed.
798890. Furthermore, Petitioner acknowledged that she neither signed nor
7997received a formal employment contract with FAMU that covered a period of two (2)
8011years. Petitioner's counsel also stipulated to the fact that Petitioner had no
8023formal employment contract with FAMU for a period to two (2) years. Dr.
8036Humphries and Dr. Hogg were the only two (2) people who could approve
8049Petitioner's employment at FAMU. Petitioner testified, however, that neither
8058Dr. Humphries nor Dr. Hogg made her an offer of employment for the period of two
8074(2) years.
807691. Consequently, FAMU took no adverse employment action by not extending
8087Petitioner's formal employment contract beyond June 18, 1993, to December 31,
80981993.
809992. Petitioner failed to prove that Dr. Weatherford accused her of making
8111international personal calls on the Physics Department telephone. Although Dr.
8121Weatherford's letter dated November 2, 1992 mentions his concern about telephone
8132calls made to Vancouver, Canada, the letter is not accusatory in nature.
8144Petitioner, also admitted that she had made some international personal
8154telephone calls from the Physics Department and would reimburse FAMU for those
8166charges. Petitioner also agreed that Dr. Weatherford's suspicions were founded.
8176Finally, Petitioner failed to prove that the accusation allegedly made by Dr.
8188Weatherford was an adverse employment action.
819493. Petitioner failed to prove that she was prevented from attending an
8206academic meeting in Reno, Nevada. Sufficient testimony was provided which
8216indicated that Petitioner could have attended the academic meeting if she could
8228have secured funding to finance her trip. Dr. Weatherford explained that he
8240informed Petitioner that he did not have the funds to pay for her trip.
8254Petitioner presented no substantial, competent evidence to refute Dr.
8263Weatherford's explanation. As indicated by Petitioner in her testimony,
8272attending academic meetings was not part of the employment agreement that she
8284had with FAMU. Petitioner also did not establish that her failure to go to Reno
8299was an adverse employment action.
830494. Although Petitioner stated in her Petition for Relief that her salary
8316was reduced, Petitioner testified to and Petitioner's counsel stipulated to the
8327fact that Petitioner's salary was not reduced while employed at FAMU.
8338Petitioner's biweekly salary was $1,200.00 for the period of January 1, 992, to
8352June 18, 1993. Petitioner was paid $45,720.00 while employed at FAMU, which is
8366$280.00 short of what she would have been paid if she had worked two (2) years
8382for $23,000.00 for twelve (12) months.
838995. Petitioner also asserted that she was retaliated against because she
8400was not hired to a regular faculty position or an adjunct instructor position in
8414the Physics Department during the years of 1993 and 1994 whereas others with
8427less seniority and qualifications were hired. Petitioner, however, did not
8437establish that a causal connection existed between the filing of Petitioner's
8448sexual harassment complaint and retaliation complaint, and Petitioner's failure
8457to be hired to a regular faculty position or an adjunct instructor position.
847096. In the case sub judice, Petitioner did not establish by a
8482preponderance of the evidence a prima facie case that Petitioner's failure to be
8495hired as a regular faculty member or an adjunct instructor in the Physics
8508Department at FAMU during the years of 1993 and 1994 was discriminatory
8520treatment based on retaliation.
852497. Petitioner failed to prove that she applied during the years of 1993
8537and 1994 for a regular faculty position or adjunct instructor position in the
8550Physics Department at FAMU.
855498. Petitioner failed to prove that she was qualified and available during
8566the years 1993 and 1994 for a regular faculty position or adjunct instructor
8579position in the Physics Department at FAMU.
858699. Petitioner failed to prove that those hired to a regular faculty
8598position or adjunct instructor position in the Physics Department at FAMU during
8610the years of 1993 and 1994 were less qualified that she.
8621100. Sufficient testimony was provided which indicated that those hired to
8632a regular faculty position or adjunct instructor position in the Physics
8643Department at FAMU during the years 1993 and 1994 had more seniority and were
8657more qualified than Petitioner.
8661101. In this proceeding, Petitioner did not present significant competent
8671and substantial direct or indirect evidence of retaliatory discrimination by
8681FAMU. Petitioner has not presented any comparative instances of disparate
8691treatment and no direct or circumstantial statistical evidence that FAMU's
8701actions were motivated by retaliation. No evidence is in the record which would
8714show that retaliation was a motivation for any action taken in reference to
8727Petitioner.
8728102. From the foregoing, it is concluded that Petitioner failed to prove a
8741prima facie case of discrimination by FAMU in retaliation for Petitioner filing
8753a sexual harassment complaint and retaliation complaint; and, even, if
8763Petitioner did present a prima facie case, FAMU has articulated a legitimate
8775non-discriminatory basis for the decisions made with regard to Petitioner's
8785employment.
8786103. Pursuant to Section 760.11(6), Florida Statues, the Commission may
8796allow the prevailing party reasonable attorneys' fees as part of the costs.
8808Such an award may be ordered by the Commission if it is determined that an
8823action was "frivolous, unreasonable, or without foundation," or "that the
8833plaintiff continued to litigate after it clearly became so." Christianburg
8843Garment Co. v. EEOC, 434 U.S. 412, 421-422 (1978).
8852104. The evidence in this proceeding does not demonstrate that
8862Petitioner's prosecution of this action was frivolous. There is some evidence
8873in the record related to the Petitioner's failure to hire claim which if given
8887credit could arguably support Petitioner's allegations. The failure to hire
8897claim is the only part of Petitioner's case which has any factual basis.
8910However, that evidence in relation to the failure to hire claim was not credited
8924and was very insubstantial, especially when compared to the evidence supporting
8935Respondent's contentions. Therefore, an award of attorneys' fees and costs are
8946not justified.
8948RECOMMENDATION
8949Based on the foregoing Findings of Fact and Conclusions of Law, the
8961evidence of Record, the candor and demeanor of the witnesses, and the pleadings
8974and arguments of the parties, it is therefore:
8982RECOMMENDED that a Final Order be entered by the Florida Commission on
8994Human Relations denying and dismissing the Petition of Relief filed by Indira
9006Khurana in its entirety.
9010DONE AND ENTERED: this 31st day of July, 1995, in Tallahassee, Leon County,
9023Florida.
9024___________________________________
9025DIANE CLEAVINGER
9027Hearing Officer
9029Division of Administrative Hearings
9033The DeSoto Building
90361230 Apalachee Parkway
9039Tallahassee, Florida 32399-1550
9042(904) 488-9675
9044Filed with the Clerk of the
9050Division of Administrative Hearings
9054this 31st day of July, 1995.
9060APPENDIX TO RECOMMENDED ORDER
90641. The facts contained in paragraphs 1-14 and 16-35 of Respondent's
9075Proposed Findings of Fact are adopted in substance, in so far as material.
90882. The facts contained in paragraphs 15 and 36 of Respondent's Proposed
9100Findings of Fact are subordinate.
91053. The facts contained in paragraphs 1, 2, 4-6, 8, 11-12, 17 and 32 of
9120Petitioner's Proposed Findings of Fact are adopted in substance, in so far as
9133material.
91344. The facts contained in paragraphs 3, 9, 10, 18, 19, 21, 22, 25, 36, 37,
915038 and 39 of Petitioner's Proposed Findings of Fact were not shown by the
9164evidence.
91655. The facts contained in paragraphs 7, 13, 14, 15, 16, 20, 23, 24, 26,
918027, 30, 31, 33, 34 and 35 of Petitioner's Proposed Findings of Fact are
9194subordinate.
91956. The facts contained in paragraphs 28 and 29 of Petitioner's Proposed
9207Findings of Fact are irrelevant and immaterial.
9214COPIES FURNISHED:
9216David Brooks Kundin, Esquire
9220906 Thomasville Road
9223Post Office Box 430
9227Tallahassee, Florida 32302
9230Bishop C. Holifield, Esquire
9234Avery D. McKnight, Esquire
9238Florida A & M University
9243Office of the General Counsel
9248300 Lee Hall
9251Tallahassee, Florid 32307
9254Ronald M. McElrath
9257Executive Director
9259325 John Knox Road
9263Building F, Suite 240
9267Tallahassee, Florida 32303-4149
9270Dana Baird
9272General Counsel
9274325 John Knox Road
9278Building F, Suite 240
9282Tallahassee, Florida 32303-4149
9285Sharon Moultry, Clerk
9288Human Relations Commission
9291325 John Knox Road
9295Building F, Suite 240
9299Tallahassee, Florida 32303-4149
9302NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
9308All parties have the right to submit written exceptions to this Recommended
9320Order. All agencies allow each party at least 10 days in which to submit
9334written exceptions. Some agencies allow a larger period within which to submit
9346written exceptions. You should contact the agency that will issue the final
9358order in this case concerning agency rules on the deadline for filing exceptions
9371to this Recommended Order. Any exceptions to this Recommended Order should be
9383filed with the agency that will issue the final order in this case.
- Date
- Proceedings
- Date: 08/31/1995
- Proceedings: Petitioner's Reply to Response to Notice of Voluntary Dismissal of Petition for Relief filed.
- Date: 08/28/1995
- Proceedings: (Respondent) Response to Petitioner`s Notice of Dismissal of Petition for Relief filed.
- Date: 08/21/1995
- Proceedings: Petitioner's Notice of Dismissal of Petition for Relief filed.
- PDF:
- Date: 07/31/1995
- Proceedings: Recommended Order sent out. CASE CLOSED. Hearing held 01/31/95 & 02/01-02/95.
- Date: 06/08/1995
- Proceedings: (Petitioner) Response to Motion to Supplement Record filed.
- Date: 06/01/1995
- Proceedings: (Respondent) Motion to Supplement The Record And Memorandum In Opposition to Petitioner's Motion to Strike Non-Record Evidence From Respondent's Proposed Recommended Order filed.
- Date: 05/30/1995
- Proceedings: Motion to Strike Non-Record Evidence From Respondent's Proposed Recommended Order filed.
- Date: 05/22/1995
- Proceedings: (Respondent) Proposed Recommended Order filed.
- Date: 05/22/1995
- Proceedings: Petitioner's Proposed Recommended Order (for HO signature) filed.
- Date: 04/05/1995
- Proceedings: Transcript 7 volumes filed.
- Date: 01/31/1995
- Proceedings: CASE STATUS: Hearing Held.
- Date: 01/31/1995
- Proceedings: CASE STATUS: Hearing Held.
- Date: 01/31/1995
- Proceedings: (Respondent) Notice of Filing Transcript; Deposition of Dr. Indira Khurana filed.
- Date: 01/27/1995
- Proceedings: (Respondent) Motion to Quash Subpoenas filed.
- Date: 01/23/1995
- Proceedings: (Respondent) Response to Petitioner's Request for Admissions filed.
- Date: 01/13/1995
- Proceedings: Order sent out. (motion to strike petition for relief denied)
- Date: 01/06/1995
- Proceedings: Petitioner's Response to Respondent's Motion to Strike filed.
- Date: 01/04/1995
- Proceedings: (Petitioner) Response to Request for Production After Entry of Order of Clarification; (Petitioner) Response to Interrogatories After Entry of Protective Order filed.
- Date: 01/04/1995
- Proceedings: (Respondent) Notice of Taking Deposition filed.
- Date: 12/20/1994
- Proceedings: Petitioner's Request for Admissions filed.
- Date: 12/19/1994
- Proceedings: (Respondent) Motion To Strike Petition For Relief filed.
- Date: 12/15/1994
- Proceedings: Order sent out. (petitioner is given 20 days from the date of this order in which to comply)
- Date: 12/14/1994
- Proceedings: (Respondent) Motion For Rehearing filed.
- Date: 12/13/1994
- Proceedings: Order Denying Motion for Continuance sent out. (motion denied)
- Date: 12/13/1994
- Proceedings: Order of Clarification sent out. (petitioner is given 20 days from 12/12/94 to comply with this order)
- Date: 12/12/1994
- Proceedings: Order sent out. (ruling on motions)
- Date: 12/09/1994
- Proceedings: (Respondent) Motion for Continuance filed.
- Date: 11/02/1994
- Proceedings: (2) Respondent's Motion to Compel Discovery And Response to Petitioner's Motion for Protective Order filed.
- Date: 10/19/1994
- Proceedings: (Petitioner) Motion for Protective Order; Response to Interrogatories Propounded On Petitioner And Request for Protective Order; Response to Request for Production And Request for Protective Order; Response to Request for Admission s filed.
- Date: 10/03/1994
- Proceedings: (Petitioner) Notice of Appearance filed.
- Date: 09/19/1994
- Proceedings: (Respondent) Notice of Re-Service of Discovery Documents filed.
- Date: 09/14/1994
- Proceedings: Notice of Telephone Motion Hearing sent out. (telephone hearing set for 10/3/94; at 1:00pm)
- Date: 09/02/1994
- Proceedings: Notice of Telephone Motion Hearing sent out. (hearing set for 9/19/94; at 1:00pm)
- Date: 08/19/1994
- Proceedings: Respondents's Motion to Compel Discovery filed.
- Date: 08/18/1994
- Proceedings: Respondent's Motion to Compel Discovery filed.
- Date: 08/02/1994
- Proceedings: Notice of Change of Address Card (for KI. Khurana) filed.
- Date: 07/12/1994
- Proceedings: Respondent's Request for Admissions; Respondent's Request for Production of Documents; Notice of Service of Interrogatories filed.
- Date: 07/01/1994
- Proceedings: Notice of Hearing sent out. (hearing set for January 31 and February 1, 1995; 9:30am; Tallahassee)
- Date: 06/21/1994
- Proceedings: Letter to SDC from I. Khurana (tagged documents) filed.
- Date: 05/19/1994
- Proceedings: CC: Letter to JWY from A. McKnight (RE: initial order) filed.
- Date: 05/18/1994
- Proceedings: Order Denying Motion to Dismiss and Requiring Production sent out. (Motion to Dismiss is Denied; Petitioner to produce within 30 days)
- Date: 05/16/1994
- Proceedings: Petitioner's Response to Initial Order filed.
- Date: 05/13/1994
- Proceedings: Ltr. to JWY from A. McKnight re: Reply to Initial Order filed.
- Date: 05/05/1994
- Proceedings: Respondent's Motion to Dismiss; Answer; Respondent's Unilateral Response to Initial Order filed.
- Date: 05/02/1994
- Proceedings: Initial Order issued.
- Date: 04/21/1994
- Proceedings: Transmittal of Petition; Charge of Discrimination; Order Granting Extension of Time; Notice of Determination: No Cause; Determination: No Cause; Petition for Relief; Notice to Respondent of Filing of Petition for Relief from an Unlawful Employment Practic
Case Information
- Judge:
- DIANE CLEAVINGER
- Date Filed:
- 04/21/1994
- Date Assignment:
- 05/02/1994
- Last Docket Entry:
- 08/31/1995
- Location:
- Tallahassee, Florida
- District:
- Northern
- Agency:
- Florida Commission on Human Relations