97-002475 St. Petersburg Junior College vs. Mary Tranquillo Status: Closed Recommended Order on Friday, June 5, 1998.

Summary: Pet: dismiss Resp, continuing contract as instructor; excessive absenteeism. Resp: defended she had mult chem sensitivity; work environ caused/aggravated it. Work Comp judge ruling precluded this issue. RO: history of good perf., annual contract for 3 yr

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ST. PETERSBURG JUNIOR COLLEGE, )

)

Petitioner, )

)

vs. ) Case No. 97-2475

)

MARY TRANQUILLO, )

)

Respondent. )

_______________________________)

RECOMMENDED ORDER

On March 18 through 20, 1998, a formal administrative

hearing was held in this case in St. Petersburg, Florida, before

J. Lawrence Johnston, Administrative Law Judge, Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Maria N. Sorolis, Esquire

Allen Norton and Blue

Hyde Park Plaza, Suite 350

324 South Hyde Park Avenue

Tampa, Florida 33606

For Respondent: John E. Tuthill, Esquire

3300 49th Street, North

St. Peters burg, Florida 33710

STATEMENT OF THE ISSUES

The issues in this case are whether the continuing contract

of employment between the Petitioner, St. Petersburg Junior

College (SPJC or the College), and the Respondent, Mary

Tranquillo, should be terminated and, if so, whether the

Respondent should be dismissed from her employment.

PRELIMINARY STATEMENT

On or about May 8, 1997, the College issued the President's

Petition and Notice to Respondent of Hearing Rights. The

Petition requested that the SPJC Board of Trustees dismiss the

Respondent from her employment with the College, effective on the

expiration of the Respondent's term of employment during the

1996-1997 school year. As grounds for dismissal, paragraph 7 of

the Petition asserted:

aanquillo has been absent from work with

such frequency as to impair the educations

[sic] experience received by students

enrolled in her classes.

banquillo has failed to prepare or

supply lesson plans for substitute teachers

who conduct classes in her absence.

canquillo has been unavailable to

participate in extracurricular activities

required of other instructors.

The Notice to Respondent of Hearing Rights informed Tranquillo

that she had the right to request a hearing under

Sections 120.569 and 120.57, Florida Statutes (Supp. 1996).

The Respondent requested formal administrative proceedings,

and the matter was referred to the Division of Administrative

Hearings (DOAH) on May 22, 1997. Initially, final hearing was

scheduled for August 26 through 28, 1997, but the Respondent's

unopposed Motion for Continuance was granted, and final hearing

was continued until December 8 through 10, 1997.

On December 4, 1997, the Respondent filed an Emergency

Motion for Continuance. For various reasons (including the

filing of two motions in limine by the Petitioner on December 4,

1997, and the Petitioner's intent to file a third), another

continuance was granted, final hearing was rescheduled for

March 18 through 20, 1998, and a schedule was established for

resolution of the motions in limine .

The first two motions in limine filed by the Petitioner

were: (1) to exclude any allegations, evidence or testimony

regarding the alleged disability of the Respondent; and (2) to

exclude any allegations, evidence or testimony regarding multiple

chemical sensitivity. Respectively, the grounds for the motions

were: (1) case law that "multiple chemical sensitivity" is not a

"disability"; and (2) case law that the diagnosis of "multiple

chemical sensitivity" is not accepted generally enough in the

medical field. In accordance with the schedule established in

the Order Continuing Final Hearing, the Petitioner filed a third

motion in limine on December 23, 1997, to prevent the Respondent

from trying the issue of whether her alleged illness was caused

or aggravated by her work environment on the ground that those

issues were precluded by rulings of a Judge of Compensation

Claims in a workers' compensation proceeding filed by the

Respondent against the College. The Respondent filed a

Memorandum of Law in Opposition to Petitioner's motions in

limine .

In consideration of the parties' written arguments, it was

concluded that the third motion in limine should be granted but

that the first two motions in limine should be denied. However,

the Order on Motions in Limine , entered on February 9, 1998,

noted that denial of the first two motions in limine was not

meant to imply that the issues of discrimination under the

Federal ADA, the Florida Civil Rights Act of 1992, or Article I,

Section 2, of the Florida Constitution would be determined in

this case. It was stated: "The only issue in this proceeding is

whether the College has good cause to dismiss the Respondent from

her employment." In addition, it was noted that, while the

denial of the first two motions in limine theoretically would

allow the Respondent to attempt to present a defense on the

ground that there was no good cause for her dismissal in view of

her alleged multiple chemical sensitivity and the alleged

availability of reasonable accommodations in her work

environment, it appeared that proof of such a defense would be

precluded by the ultimate and subordinate findings made in the

workers' compensation proceeding--by which the Respondent would

be bound as a result of the granting of the third motion in

limine .

On February 23, 1998, the Respondent filed a Motion for

Reconsideration and Clarification of Order on Motions in Limine .

An Order Denying Motion for Reconsideration and Clarification was

entered on March 2, 19 98. It characterized the Order on Motions

in Limine as clearly not saying that the Respondent could not

present a case that illness caused her to be absent from work but

rather as merely pointing out that the Judge of Compensation

Claims already found that her illness was not "multiple chemical

sensitivity" and that her work environment was not a cause of her

illness (or illnesses)(so that, logically, accommodation in her

work environment should not be an issue). The question would be

whether, considering any evidence the Respondent presented

regarding her illness(es), there was good cause ( i.e. , legal

cause) to dismiss the Respondent.

The parties filed a Pretrial Stipulation on March 13, 1998.

At final hearing, the College called 22 witnesses and had 72

exhibits admitted in evidence. (The College's exhibits are not

listed here because of the unnecessarily complicated and unwieldy

system the College used to number its exhibits; the exhibits are,

however, listed in the transcript of the final hearing.) (Ruling

was reserved on objections to exhibits 87C and 125A; those

objections are now overruled.) The Respondent testified in her

own behalf and called 13 additional witnesses. Respondent's

Exhibits 1 through 11 were admitted in evidence. (Ruling was

reserved on objections to Respondent's Exhibits 10 and 11; those

objections are now overruled.)

After presentation of the evidence, the Petitioner ordered

the preparation of a transcript of the final hearing, and the

parties' request to be given until May 1, 1998, for proposed

recommended orders was granted.

FINDINGS OF FACT

1. The Petitioner, St. Petersburg Junior College (SPJC or

the College), has several campuses and approximately 60,000

students.

2. The Respondent, Dr. Mary Tranquillo, who has 32 years of

teaching experience, has been employed by the College for

24 years as an instructor in the area of business technologies,

with an emphasis in fashion and marketing.

3. The Respondent has been on a continuing contract with

the College since 1974. There is no question as to her

performance through approximately 1991. She was a competent,

effective and valuable instructor during those years.

4. In approximately January 1992, the Respondent began to

complain of illness which she attributed to various factors in

her work environment. Over the years since then, Tranquillo has

blamed tar fumes from roofing work being done in the vicinity, as

well as fumes and molds from various buildings and other sources

on or near the campus. The Respondent not only called in sick,

she also sometimes stayed away to avoid what she said were the

environmental factors responsible for her illnesses.

5. By her own reckoning, the Respondent was absent from

work from January 15 through January 24, from February 19 through

February 28, from March 27 through June 17, 1992 (for a total of

103 days during the 1991-92 school year.) During the 1992-93

school year, Tranquillo was absent from September 22 through

September 24, on October 22, and from October 26 through

October 29, 1992, and from February 5 through 10, on February 15,

from February 25 through February 26, and from March 23 through

May 7, 1993 (for a total of 63 days.) During the 1993-94 school

year, Tranquillo was absent on November 8 and 9, 1993, from

February 9 through 11, 1994, from June 14 through June 16, and

from July 6 through July 14, 1994 (for a total of 17 days.)

During the 1994-95 school year, Tranquillo was absent on

October 14, 1994, and on March 2 and 3, 1995 (for a total of 3

days.) During the 1995-96 school year, Tranquillo was absent on

September 21 and 22, from October 9 through 12, from October 16

through 20, and from November 9 through 16, 1995 (for a total of

18 days.) During the 1996-97 school year, Tranquillo was absent

from September 27 through 29, from October 21 through 25, and on

November 15, 1996, and from January 6 through 9, from February 10

through 13, 1997 (for a total of 17 days.) During the 1997-98

school year, Tranquillo was absent from October 9 through 17,

1997.

6. Paid sick leave is accumulated by SPJC faculty at the

rate of one day per month of service and is permitted to be

carried over. Sick leave is credited at the beginning of each

school year. There also is a sick leave pool available; members

of the pool are assessed one day of leave in return for the

ability to use up to 44 days of sick leave from the pool after

their personal sick leave is exhausted. The Respondent exhausted

her paid sick leave each year since 1992, except for the 1994-95

school year. In addition, the Respondent has used all 44 days of

sick leave available to her as a member of the sick leave pool.

7. The Respondent's absences clearly impaired the

educational experience of students enrolled in her classes. The

Respondent's classes were not impacted equally. As evidenced by

the testimony of many students, the Respondent's students

generally seem to have been able to obtain valuable educational

experiences during times when the Respondent was not absent, or

was absent less. On the other hand, as evidenced by the

testimony of many other students, the students' educational

experiences suffered during times when the Respondent was absent

frequently. Despite efforts to focus attention on the former

occasions, the Respondent herself admitted to the latter.

8. When the Respondent was absent frequently, it was

sometimes difficult to obtain and prepare substitutes.

Sometimes, there was little or no notice. Sometimes, substitutes

could not be found at all, and class had to be canceled.

Sometimes, a substitute was found, but the substitute was not

qualified to teach the Respondent's class. Sometimes, there was

not enough time to prepare the substitute.

9. The College did not prove that the problems with

covering for the Respondent's absences were all the fault of the

Respondent. Before June 1997, the Respondent generally seemed to

try to prepare her substitutes, and the College did not prove

that the Respondent failed to prepare lesson plans for

substitutes prior to June 1997. But there sometimes was

difficulty communicating instructions to substitutes or locating

materials to be used by the substitutes.

10. The Respondent sought to blame all difficulties in

covering for her absences on the administration, office clerical

staff, and the substitutes. The Respondent blamed the

administration for having the clerical staff select substitutes

and blamed the clerical staff for selecting substitutes who were

not qualified. The Respondent also went so far as to suggest the

existence of a conspiracy among members of the administration,

clerical staff and substitutes to sabotage the Respondent's

efforts to cover for her absences in order to trump up charges

for her dismissal.

11. It is found that there was no such conspiracy against

the Respondent. It is true that, as time went on, some of those

involved in covering for the Respondent's absences felt put upon.

Some administration and clerical staff became frustrated and

aggravated; so did some substitutes, some of whom refused to

continue to respond to requests to substitute for the Respondent.

But these individuals did not cause the Respondent's problems.

Rather, the problems of trying to cover for the Respondent were

caused by the sheer number of the Respondent's absences, together

with their general unpredictability in time and length; these

problems made it difficult and frustrating for those involved.

The Respondent failed to appreciate, and instead minimized, the

hardships on the College in trying to cover for the Respondent's

many absences.

12. Additional problems caused by the Respondent's absences

included lack of continuity, failure of communication with the

students, and student apprehension concerning grading. For some

of the Respondent's classes, these problems were so severe that

the administration considered giving all students an "A" just for

putting up with all of the problems.

13. The Respondent also tended to obsess on the

environmental factors she thought was causing her absences.

Sometimes, when the Respondent came to class, she spent excessive

time discussing her grievances with the College regarding her

illness and the factors she blamed for them. This also

diminished the quality of the educational experience of many

students.

14. The students most impacted by these problems felt

cheated and became frustrated and angry, as well as concerned

about grades. Some initiated and signed petitions to the

administration to attempt to get satisfaction. Contrary to the

Respondent's suspicions, these petition drives and student

grievances were not instigated by substitutes (who essentially

told complaining students that they should make their complaints

known to the administration), by administration, or by other

faculty. They were not yet another part of an alleged conspiracy

to get rid of the Respondent. Rather, they were expressions of

honest and understandable concerns and grievances on the part of

the students.

15. Generally, instructors at the College are expected to

not only teach classes but also attend faculty meetings, serve on

committees, and be part of a professional group. It is clear

that, due to her excessive absences, at times the Respondent was

unavailable to participate in these kinds of extracurricular

activities.

16. Some of the extracurricular activities cited by the

Respondent to demonstrate her level of participation actually

were not extracurricular. For example, she cited the preparation

of lesson plans and claimed that they were extracurricular.

Similarly, she attempted to characterize the selection of a

textbook for her class.

17. Some extracurricular "activities" cited by the

Respondent were not very active. The Respondent cited a plan

that she had to promote courses in her area of instruction as

extracurricular, but there was no evidence that she acted on the

plan. The Respondent testified that she was a member of an

"organization development network" that holds meetings, but on

cross-examination she admitted that she actually never has

attended a meeting of the group. The Respondent cited a letter

she wrote encouraging students to attend a meeting, but it was

revealed on cross-examination that the Respondent herself did not

attend the meeting.

18. The Respondent called a witness to testify to time the

Respondent spent assisting with one particular extracurricular

project, but the testimony was that, in that instance, the

Respondent just compiled some materials for the witness, who

could not say "how many minutes it took" the Respondent.

19. The Respondent credits herself with time spent writing

for publication. Indeed, there was evidence to support this

claim. However, it appears that less time was spent writing for

publication in the time period from 1992 through 1997, than

earlier in the Respondent's career. For example, a book the

Respondent claims to have been working on for the last five years

still consists of only an outline.

20. While able to cite weaknesses in the Respondent's

demonstration of her level of participation in extracurricular

activities, and while proving a general requirement to

participate in extracurricular activities, the College did not

prove precisely what is required of instructors in this regard.

There was no evidence of any standards by which an instructor's

level of participation can be quantified or measured. Without

such standards, the College was unable to prove that the

Respondent failed to meet the College's requirements.

21. Beginning with the 1993-94 school year, the Respondent

began receiving negative performance evaluations. Essentially,

the College cited the problems caused by the Respondent's

excessive absences, and the Respondent blamed them on illness

allegedly caused by environmental factors on campus that were

beyond her control.

22. Although the College tried to accommodate the

Respondent, the Respondent did not think the College was doing

enough and blamed the College for being callous and

uncooperative. Eventually, the College came to question the

existence of the environmental factors to which the Respondent

attributed her problems and began to believe that the

Respondent's demands had become unreasonable. As a result, the

working relationship between the Respondent and administration

deteriorated, and the College began to give consideration to

terminating the Respondent's continuing contract.

23. By the end of the 1996-97 school year, the College

decided to terminate the Respondent's continuing contract as of

the end of the school year. On or about May 8, 1997, the College

issued the President's Petition and Notice to Respondent of

Hearing Rights. On the belief that it was improper or

unnecessary after initiation of termination proceedings, the

College never completed the Respondent's performance evaluation

process for the 1996-97 school year.

24. Due to the pendency of this proceeding, the Respondent

has continued to teach during the 1997-98 school year. In June

1997, the Respondent began to take the position that, when she

had to be out sick but had no more sick leave, she would not

prepare lesson plans or otherwise do "work" at home to help

prepare substitutes. When she invoked this new position, the

College countered that it violated the requirement that

instructors prepare lesson plans and prepare substitutes when

necessary. Eventually, this dispute was resolved, and the

Respondent receded from her position. It is not a continuing

issue.

25. In 1994, the Respondent filed a workers' compensation

claim against the College alleging that she had multiple chemical

sensitivity and related illnesses arising out of and in the

course and scope of her employment. Both parties were

represented by counsel in that proceeding, and they fully and

fairly litigated the issue as to whether the Respondent was

exposed to any chemical through her work environment at the

College which caused, accelerated, or aggravated any physical or

mental illness. On June 19, 1997, an Order was entered Judge of

Compensation Claims ruling against the Respondent and in favor of

the College on that issue and denying the claim.

26. The Respondent presented no evidence at the hearing to

support her claim that her absences were caused by genuine

illness. No physician testified, and no medical evidence was

introduced.

27. Due to the long-standing problems beginning in January

1992, the evidence proved "good and sufficient reasons" to

terminate the Respondent's continuing contract. Yet, the

evidence also was that, when the Respondent is "on-the-job,"

physically and mentally, she can be a very effective instructor.

Indeed, the evidence was that the Respondent's attendance at work

and her work performance have been better since action was

initiated to terminate her continuing contract. In January 1998,

the Respondent was given an office and a classroom which she does

not think affect her health adversely. (Ironically, they are the

same office and classroom offered to the Respondent in 1994 and

1995; the Respondent believes that measures taken since then have

ameliorated the environmental factors that allegedly were causing

her health problems.)

CONCLUSIONS OF LAW

28. Florida Administrative Code Rule 6A-14.0411(4)

provides:

Any employee who is under continuing contract

may be dismissed or may be returned to annual

contract status for another three (3) years

at the discretion of the board when a

recommendation to that effect is submitted in

writing to the board on or before April 1 of

any college year giving good and sufficient

reasons therefor by the president and

provided the president's recommendation is

approved by a majority of the board. The

employee whose contract is under

consideration shall be duly notified in

writing at least seven (7) days prior to the

filing of the written recommendation with the

board and such notice shall include a copy of

the charges and the recommendation to the

board. Should the board determine that it

will consider the charges filed against the

employee, it shall direct that a petition

conforming to the requirements of the model

rules of procedure adopted pursuant to

Section 120.54(10), Florida Statutes, and

including notification to the employee of his

or her hearing rights, be filed with it and a

copy served upon the employee. If the

employee wishes a public hearing, he or she

shall notify the board in writing within ten

(10) days after the date of service of the

petition. Upon receiving such a request, the

board shall within fifteen (15) days notify

the employee of the time and place of the

public hearing on the charges which shall not

be less than fourteen (14) days from the

service of the notice unless a different time

is agreed to by all parties. The hearing

shall proceed in accordance with the

provisions of Chapter 120, Florida Statutes,

and should be in substantial compliance with

the model rules of procedure, Title 28, FAC,

unless the parties mutually agree to an

alternative hearing procedure. In the event

the employee does not request a public

hearing the board shall proceed to take

appropriate action. Any decision adverse to

the employee shall be made by a majority vote

of the full membership of the board.

(emphasis added)

The issues in this case are whether there are "good and

sufficient reasons" to dismiss the Respondent or return her to

annual contract status for another three (3) years.

29. As found, the Respondent's absences were excessive.

The Respondent intended to blame them on illness caused by

environmental factors controlled by the College. But that issue

was eliminated by the Order on Motions in Limine .

30. In the workers' compensation proceeding filed by the

Respondent against the College, both parties were represented by

counsel, and they fully and fairly litigated the issue as to

whether the Respondent was exposed to any chemical through her

work environment at the College which caused, accelerated, or

aggravated any physical or mental illness. After considering all

the evidence, the Judge of Compensation Claims ultimately ruled

against the Respondent and in favor of the College on that issue.

31. The Respondent argued prehearing that collateral

estoppel does not apply because the findings made by the Judge of

Compensation Claims were not necessary to a determination that

the Respondent was not entitled to compensation benefits in that

case. To the contrary, it is concluded that the Respondent is

bound by the Judge's ultimate and subordinate findings under the

principle of collateral estoppel (also sometimes called estoppel

by judgment or issue preclusion.) See Stogniew v. McQueen , 656

So. 2d 917 (Fla. 1995). The Respondent is not permitted to

relitigate those findings in this proceeding.

32. While the Order on Motions in Limine precluded the

defenses that the Respondent had "multiple chemical sensitivity"

caused by her work environment and that the College had to make

accommodations in her work environment, the Respondent was not

precluded from presenting a defense that genuine illness of some

kind caused her to be absent from work. But no medical evidence

of any kind was presented by the Respondent to support such a

claim.

33. The Respondent's case essentially consisted of attempts

to place blame on others for causing her absences and the

problems that resulted from them, as well as attempts to minimize

the extent of the problems caused. But the greater weight of the

evidence was to the contrary. As found, the Respondent's

excessive absences and the problems they caused the College and

its students were "good and sufficient reasons" to terminate the

Respondent's continuing contract.

34. At the same time, there is ample evidence that the

Respondent can be an effective and valuable SPJC instructor when

she is "on-the-job," physically and mentally. There also was

evidence that the Respondent's performance has been satisfactory

during the 1997-98 school year. Under Florida Administrative

Code Rule 6A-14.0411(4), termination of the Respondent's

continuing contract does not preclude the College from returning

the Respondent to an annual contract for another three (3) years.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Board of Trustees of St. Petersburg

Junior College enter a final order terminating the Respondent's

continuing contract and returning her to an annual contract for

another three years.

DONE AND ENTERED this 5th day of June, 1998, in Tallahassee,

Leon County, Florida.

___________________________________

J. LAWRENCE JOHNSTON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 5th day of June, 1998.

COPIES FURNISHED:

Board of Trustees

St. Petersburg Junior College

c/o Maria N. Sorolis, Esquire

Allen Norton and Blue

Hyde Park Plaza, Suite 350

324 South Hyde Park Avenue

Tampa, Florida 33606

Maria N. Sorolis, Esquire

Allen Norton and Blue

Hyde Park Plaza, Suite 350

324 South Hyde Park Avenue

Tampa, Florida 33606

John E. Tuthill, Esquire

3300 49th Street, North

St. Petersburg, Florida 33710

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15

days from the date of this Recommended Order. Any exceptions to

this Recommended Order should be filed with the agency that will

issue the final order in this case.