03-003838 Babu Jain vs. Florida Agricultural And Mechanical University Status: Closed Recommended Order on Monday, May 17, 2004.

Summary: All employment relationships did not terminate within the meaning of Subsection 121.021 (39), Florida Statutes. University`s actions were unilateral. Recommend reinstatement.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BABU JAIN, )

)

Petitioner, )

)

vs. ) Case No. 03 - 3838

)

FLORIDA AGRICULTURAL AND )

MECHANICAL UNIVERSITY, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held pursuant to notice, on January 14

and 15, 2004, in Tallahassee, Florida, by Barbara J. Staros,

assigned Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioners: Art hur Lewis Stern, III, Esquire

1904 West Indianhead Drive

Tallahassee , Florida 32301

For Respondent: Linda Barge - Miles, Esquire

Avery D. McKnight, Acting General Coun sel

Office of the General Counsel

Florida A & M University

300 Lee Hall

Tallahassee, Florida 32307 - 3100

STATEMENT OF T HE ISSUE

Whether Petitioner’s employment with Respondent terminated

on May 31, 2003, or whether Petitioner continued to be employed

by Respondent during the next calendar month.

PRELIMINARY STATEMENT

By letter dated May 27, 2003, Respondent notified

Petitioner that it was not in agreement with Petitioner’s

decision to void his participation in the Deferred Retirement

Option Program (DROP). By letter dated May 30, 2003, Respondent

advised Petitioner, Dr. Babu Jain, that two summer employment

contracts for the periods May 12, 2003 through June 30, 2003 and

July 1, 2003 through August 1, 2003, were issued in error "due

to the fact that your DROP retirement date is May 31, 2003."

The letter further advised that the Respondent considers

Dr. Jain to have r etired as of May 31, 2003.

Petitioner Jain disputed Respondent’s decision and

requested an administrative hearing. The request for hearing

was forwarded to the Division of Administrative Hearings on or

about September 29, 2003. A formal hearing was s cheduled for

January 14 and 15, 2004.

At hearing, Petitioner testified on his own behalf and

presented the testimony of Mogus Mochena, Gladys Lang, William

Tucker, Larry Robinson, Nellie Woodruff, and Larry Rivers.

Joint Exhibits numbered 1 through 30 a nd 32 through 34 were

admitted into evidence. Respondent presented the testimony of

Larry Rivers and Larry Robinson. Respondent's Exhibits numbered

1 and 2, which included the deposition testimony of Valencia

Matthews, were admitted into evidence.

Offici al Recognition was requested of Chapter 121, Florida

Statutes (1997), and Florida Administrative Code Chapter 6C3 - 10.

The request was granted.

A Transcript consisting of four volumes was filed on

February 6, 2004. On February 27, 2004, the parties filed a

Joint Motion for Extension of Time to File Proposed Recommended

Orders, which was granted. The parties timely filed Proposed

Recommended Orders which have been considered in the preparation

of this Recommended Order.

FINDINGS OF FACT

1. Petitioner Ba bu Jain was hired by Florida Agricultural

and Mechanical University (FAMU) as a physics professor in

September, 1967. He became an associate professor with tenure

in 1979 and a full professor in 1996. The exact date of his

last day of employment is a cen tral issue in this case.

2. In 1998, Dr. Jain learned of the DROP program. After

reviewing written materials regarding DROP for nearly a year,

Dr. Jain decided to join DROP in 1999. He executed Forms DP - 11

and DP - ELE, indicating his election to particip ate in DROP.

3. Form DP - ELE is entitled, "Notice of Election to

Participate in the Deferred Retirement Option Program (DROP) and

Resignation of Employment." Form DP - ELE includes the following:

"RESIGNATION FROM EMPLOYMENT TO PARTICIPATE IN THE DROP - I

elect to participate in the DROP in accordance with Subsection

121.091(13), Florida Statutes . . . and resign my employment on

the date I terminate from the DROP." The form contains

Dr. Jain’s notarized signature below the following: "I

understand that I must terminate all employment with FRS

employers to receive a monthly retirement benefit and my DROP

benefit under Chapter 121, F.S." Dr. Jain signed the form on

October 12, 1999.

4. The bottom portion of Form DP - ELE is to be completed by

the agency h ead or designated representative. Within that

portion of the form, the signature of Nellie Woodruff, Director

of Personnel Relations at FAMU, appears following an

acknowledgement: "I acknowledge that DROP participation for

Babu L. Jain will begin on 06/0 1/1999, and I accept his

resignation effective 05/30/2003 (the date the employee’s DROP

participation will terminate)." This portion of the form

indicates that it was signed by Ms. Woodruff on November 10,

1999.

5. Sometime in the early part of 2003, D r. Jain, for

personal and financial reasons, decided that he wanted to

relinquish his participation in DROP. He was aware that if he

did so, he would forfeit all accumulated DROP moneys.

6. Dr. Jain first relayed his desire to FAMU by verbally

infor ming Dr. Henry Williams, the Assistant Dean of the College

of Arts and Sciences, who was in charge of science departments.

This conversation took place in approximately mid - February,

2003.

7. On March 18, 2003, Dr. Jain sent a letter to Dr. Larry

Rivers, Dean of the College of Arts and Sciences, which read in

pertinent part as follows:

This letter is in connection with my 1999

DROP application. I would like to inform

you that I am finding my circumstances very

unfavorable to accept the DROP at this time

and, hence, I will not be taking the

retirement in May 2003.

8. Dr. Jain sent a copy to, among others, Dr. Gladys Lang,

who was the Acting Provost and Vice President of Academic

Affairs at that t ime. She did not take any action regarding

Dr. Jain’s letter because it was her understanding and belief

that no action was necessary. It was her understanding and

belief that that Dr. Jain notified the University of his

decision to withdraw from DROP an d that no action was necessary

on her part, "because I believed that the participants in DROP

could make that decision that they wanted to continue to work

and did not want to continue in the DROP program. I did

nothing." She considered her decision not to take any action on

Dr. Jain’s letter to be an acceptance of his decision. However,

Dr. Lang acknowledged that had the letter been addressed to her,

rather than her receiving a copy of it, she would have

responded.

9. Dr. Jain did not receive any respo nse to his March 18,

2003, letter to Dr. Rivers. Because of this, Dr. Jain wrote

again to Dr. Rivers on April 18, 2003, in which he reiterated

that he did not want to retire in May 2003.

10. Dr. Jain received a Termination Notification Form,

Form DP - TERM, from the Division of Retirement in February 2003.

Form DP - TERM specifies that it must be completed by both the

DROP participant and the employer. It reads in pertinent part

as follows:

According to our records, your DROP

termination date is 05/ 31/03. This form

must be completed by both you and your

employer and returned to the Division of

Retirement in order to receive your DROP

benefits and your monthly retirement

benefits. In order to collect DROP, you

must agree to the following statements.

I understand that I cannot accept work for

any Florida Retirement System (FRS) covered

employer during the calendar month following

my DROP termination date or my DROP

participation will be null and void. If I

fail to meet this requirement, I will

forf eit my accumulated DROP benefit

including interest. I also understand that

I may not be reemployed by any FRS employer

in any capacity . . . during the calendar

month immediately following my DROP

termination date. If I fail to meet this

requirement, I w ill forfeit my accumulated

DROP benefit, including interest retroactive

to my enrollment date in DROP.

I understand that if I forfeit my DROP

benefit, my employer will be responsible for

making retroactive retirement contributions

and I will instead be a warded service credit

for the time period during which I was in

DROP. I will be eligible for a service

retirement benefit based on my new

termination date. I will be responsible for

submitting an Application for Service

Retirement. My retirement benefit will be

based on my creditable service and salary,

including such service and salary earned

while in DROP.

11. Dr. Jain did not sign Form DP - TERM. It is not clear

from the record whether FAMU was even aware that Dr. Jain

received this form. In any e vent, the portion of the form which

is to be completed by the employer certifying that the employee

has or will terminate employment is not signed by anyone from

FAMU.

12. Dr. Bill Tucker is a faculty member of the physics

department and is president of the FAMU chapter of the United

Faculty of Florida. On or about April 19, 2003, Dr. Tucker met

with Dr. Rivers regarding Dr. Jain’s intention not to retire.

Dr. Tucker left that meeting with the impression that Dr. Rivers

had accepted Dr. Jain’s deci sion to remain a faculty member at

FAMU and not retire in May 2003.

13. Following that meeting, Dr. Jain wrote a letter dated

April 21, 2003, to Dr. Rivers thanking him for his support and

understanding the he, Dr. Jain, had decided not to retire. The

letter also reminded Dr. Rivers that Dr. Mochena had not yet

given him his 2003 - 2004 assignment of responsibilities, and

requested that Dr. Rivers ask Dr. Mochena to do so at his

earliest opportunity.

14. Dr. Rivers did then call Dr. Mochena regarding

pr eparing a schedule for fall semester for Dr. Jain.

Dr. Mochena described the call as a "very quick call." As a

result of that call, Dr. Mochena issued an Assignment of

Responsibility Form on April 23, 2003, for Dr. Jain for the fall

2003 semester. While Dr. Rivers insisted at hearing that his

intention was that Dr. Jain be assigned teaching duties on an

adjunct basis, he acknowledged, and Dr. Mochena confirmed, that

the assignment of responsibilities for Dr. Jain for fall of 2003

was not of a type that w ould have been given to an adjunct

professor.

15. Sometime after April 23, 2003, Dr. Jain asked

Dr. Mochena to assign him teaching responsibilities for the

summer of 2003. Dr. Mochena had already made his summer

teaching assignments. He assumed, however, that since Dr. Jain

was being assigned fall classes, that it was it would be

appropriate to assign summer classes to Dr. Jain as well. On

May 2, 2003, Dr. Mochena issued an Assignment of Responsibility

Form for Summer Term "C" 2003, which was for 12 weeks. This was

signed by Dr. Jain and Dr. Mochena on May 2, 2003. While

Dr. Mochena's assignment of summer teaching responsibilities to

Dr. Jain was as a result of Dr. Jain’s request and not at the

request of the Dean’s office, Dr. Henry Williams, A ssistant Dean

for the College of Arts and Sciences, and Dr. Larry Rivers

signed the Assignment of Responsibility Form for Summer Term "C"

for Dr. Jain on May 5 and 6, 2003, respectively.

16. Dr. Williams and Dr. Rivers also signed two forms on

May 5 and 6 , 2003, respectively, regarding Dr. Jain entitled

"Recommendation for Faculty Employment." One was for the period

of employment designated May 12, 2003 to June 30, 2003. The

second was for the period July 1, 2003 to August 1, 2003. These

recommendations went to the new Provost, Dr. Robinson.

17. Dr. Larry Robinson became Provost and Vice President

of Academic Affairs of the University on May 5, 2003.

18. On May 20, 2003, Dr. Robinson signed two employment

contracts regarding Dr. Jain for Summer Term "C." The first

contract period was May 12, 2003 to June 30, 2003. The period

of the second contract was July 1, 2003 until August 1, 2003.

There were two contracts covering the summer term because the

"C" summer term during which the physics courses wer e taught,

extended into the next fiscal year. There is a section on the

two summer contracts entitled "Tenure Status." There is an "X"

beside the designation "Tenured."

19. On May 21, 2003, Nellie Woodruff sent a memo addressed

to Dr. Robinson which s tated as follows:

SUBJECT: DROP Termination Date for Babu L.

Jain

We are requesting your intervention in

bringing closure to the subject employee’s

request to withdraw from the DROP and

continue his employment with the University

subsequent to May 31, 2003. Enclosed are

copies of the documents which were received

in this Office from both Dr. Jain and the

Division of Retirement.

Please advise this office by May 30, 2003,

regarding the appropriate action to take

relative to Dr. Jain’s request for

withd rawal from the DROP and remaining an

employee of the University.

20. According to Dr. Robinson, Ms. Woodruff’s May 21,

2003, memorandum to him was the first time he "officially"

became aware of the issue regarding Dr. Jain. That is, he was

generally aw are of the fact that several employees were

approaching their retirement date and entering DROP. Dr. Jain’s

designated retirement date was a month earlier than the other

FAMU DROP participants who had a June 30, 2003, DROP termination

date. Whether Dr. R obinson had unofficial knowledge of

Dr. Jain's retirement date or of his desire to withdraw from

DROP at the time he signed the two summer contracts is unclear

based upon his testimony.

21. As a result of learning of Dr. Jain’s situation,

Dr. Robinson s ent a certified letter to Dr. Jain dated May 27,

2003, which read as follows:

This comes in response to your request to

void your participation in the Deferred

Retirement Option (DROP) program. It

appears from your correspondence of

April 18, 2003, addres sed to Dr. Larry

Rivers, Dean of the College of Arts and

Sciences, that you believe the decision to

void your participation is a unilateral one.

On the contrary, the decision to void your

participation in DROP is a mutual one,

requiring the University’s assent. The

University is not in agreement with your

decision to void your participation in DROP.

I call your attention to two documents, Form

DP - ELE and Form DP - 11, which are on file

with your signature. Specifically, Form DP -

ELE reads in relevant part as follows: "I

elect to participate in the DROP in

accordance with Subsection 121.091(13),

Florida Statutes (F.S.), as indicated above

and resign my employment on the date I

terminate from the DROP." Additionally,

Form DP - 11 reads in relevant part as

fo llows: "I have resigned my employment on

the date stated above and elect to

participate in the DROP in accordance with

Subsection 121.091(13), Florida Statutes

(F.S.).”

Regrettably, the University must inform you

that it will follow the guidelines for D ROP

as outlined in the aforementioned Florida

Statutes and cannot support your request to

void your application in DROP. I also call

your attention to Florida A&M University

Rule 6C - 10.211(2)(c), Florida Administrative

Code which is enclosed with the

afor ementioned forms. Thank you for your

many years of service to the University.

22. The Division of Retirement issued a letter, dated

May 5, 2003, to Dr. Jain with Form DP - VOID enclosed. Dr. Jain

insists he did not receive it in the mail and, therefor e, went

to the Division of Retirement on May 29, 2003, to pick it up.

In any event, he signed the DROP - VOID form on May 29, 2003, and

took it to FAMU in an attempt to get it executed by Dr. Rivers

or Dr. Robinson. The DROP - VOID form contains a section en titled

"Employer Certification" which reads as follows:

This is to certify that the _____ (agency

name) has rescinded the resignation of the

above named member, and the member will

continue working in a regularly established

position with FRS ceverage. We understand

the member’s DROP participation will be null

and void, the membership in the FRS Pension

Plan will be reestablished to the date the

member joined the DROP and we will begin

immediately reporting the correct retirement

plan and contributions to the Division of

Retirement. FRS will adjust previous

payrolls reported under DROP based upon the

member not having joined the DROP. In

addition, we understand that contributions,

plus interest, may be required. Future

payrolls should reflect the retirem ent plan

of active membership.

23. Despite Dr. Jain’s efforts on May 29 and 30, 2003, to

get this form signed, the DROP - VOID form was not signed by

anyone at FAMU.

24. On either May 29 or 30, 2003, Dr. Mochena received a

call from Dr. Henry William s, Assistant Dean for the College of

Arts and Sciences, who instructed Dr. Mochena to end Dr. Jain’s

summer employment and to reassign Dr. Jain’s classes to another

instructor. Dr. Mochena assigned Mr. Jay Jackson to teach

Dr. Jain’s classes beginning Mon day, June 2, 2003.

25. Dr. Robinson wrote a second letter to Dr. Jain on

May 30, 2003, which read in pertinent part as follows:

Dear Dr. Jain:

This letter is to inform you that the two

Summer Semester Employment Contracts,

May 12, 2003 to June 30, 20 03, and July 1,

2003 to August 1, 2003, were issued in error

to you due to the fact that your DROP

retirement date is May 31, 2003. As a

result, you will be paid through May 30,

2003 for your services to the University and

the University will consider you to have

retired as of May 31, 2003.

26. On Monday, June 2, 2003, Dr. Jain arrived at his

classroom where Mr. Jackson was teaching. Dr. Jain left the

classroom and went to see Dr. Mochena. Dr. Jain learned from

Dr. Mochena that he ha d been instructed by the Dean prior to

Saturday, May 31, 2003, to replace Dr. Jain with another

instructor.

27. Dr. Jain continued to go to his office for several

days after June 2, 2003, "doing things I usually do. Do some

research, study, read." He did not teach any classes in June

2003.

28. Each department submits a payroll certification

indicating the number of hours that an employee worked during a

pay period. The payroll certification signed by Dr. Mochena on

June 4, 2003, for the pay - period Ma y 23 through June 5, 2003,

initially indicated that Dr. Jain worked 79.3 hours. However,

the 79.3 was crossed out and replaced with 47.58. The 47.58 was

in handwriting, not typed as the rest of the numbers on the

certification sheet which included the en try of 79.3 hours.

29. The record is not clear as to who made the correction

or when it was made. According to Ms. Woodruff, however, it is

not the practice of the payroll section to change any

certifications after the fact. Additionally, once an employ ee

in a salaried position is added to the payroll, he/she is

automatically issued a paycheck based upon the contract, unless

some action occurs. In any event, the payroll section did not

make an adjustment in Dr. Jain’s pay for the pay - period May 23

throu gh June 5, 2003.

30. Dr. Jain’s received an Earnings Statement reflecting a

"pay date" of June 13, 2003, and a pay - period of 05/23/2003 -

06/05/2003 reflecting regular wages of $3,266.11. Subsequently,

the payroll office at FAMU completed a Refund for Ov erpayment of

Salary form and submitted it to the Office of the Comptroller,

Bureau of State Payrolls. In the section entitled, Reason for

Adjustment, the payroll office wrote, "DROP end date 5/30/03."

31. A salary refund in the amount of $898.33 was dedu cted

from Dr. Jain’s sick leave payout on June 20, 2003.

CONCLUSIONS OF LAW

32. The Division of Administrative Hearings has

jurisdiction over the parties and subject matter of this

proceeding. §§ 120.569 and 120.57(1), Fla. Stat.

33. The burden of proof in an administrative proceeding is

on the party asserting the affirmative of the issue unless the

burden is established otherwise by statute. Young v. State,

Department of Community Affairs , 567 So. 2d 2 (Fla. 3rd DCA

1990); Balino v. Department of Health and Rehabilitative

Services , 348 So. 2d 349 (Fla. 1st DCA 1977). Petitioner,

Dr. Jain, has the burden of proof in this proceeding.

34. Two competing statutory provisions come into play in

this analysis. The first, Section 121.091(13), Florid a

Statutes, reads in pertinent part as follows:

(13) DEFERRED RETIREMENT OF OPTION

PROGRAM. -- In general, and subject to the

provisions of this section, the Deferred

Retirement Option Program, hereinafter

referred to as the DROP, is a program under

which a n eligible member of the Florida

Retirement System may elect to participate,

deferring receipt of retirement benefits

while continuing employment with his or her

Florida Retirement System employer. The

deferred monthly benefits shall accrue in

the System Trust Fund on behalf of the

participant, plus interest compounded

monthly, for the specified period of the

DROP participation, as provided in paragraph

(c). Upon termination of employment, the

participant shall receive the total DROP

benefits and begin to receive the previously

determined normal retirement benefits.

Participation in the DROP does not guarantee

employment for the specified period of DROP.

Participation in the DROP by an eligible

member beyond the initial 60 - month period as

authorized in this subsection shall be on an

annual contractual basis for all

participants.

(b) Participation in the DROP. --

1. An eligible member may elect to

participate in the DROP for a period not to

exceed a maximum of 60 calendar months . . .

2. Upon de ciding to participate in the

DROP, the member shall submit, on forms

required by the division:

a. A written election to participate in the

DROP;

b. Selection of the DROP participation and

termination dates, which satisfy the

limitations stated in p aragraph (a) and

subparagraph 1. Such termination dates

shall be in the a binding letter of

resignation with the employer, establishing

a deferred termination date. The member may

change the termination date within the

limitations of subparagraph 1., but only

with the written approval of his or her

employer ;

c. A properly completed DROP application

for service retirement as provided in this

section; and

d. Any other information required by the

division.

3. . . . However, participation in the DROP

does not alter the participant's employment

status and such employee shall not be deemed

retired from employment until his or her

deferred resignation is effective and

termination occurs as provided in s.

121.021(39) . (emphasis added)

35. Section 121. 021(39)(b), Florida Statutes, reads in

pertinent part as follows:

"Termination" for a member electing to

participate under the Deferred Retirement

Option Program occurs when the Deferred

Retirement Option Program participant ceases

all employment rela tionships with employers

under this system in accordance with s.

121.091(13), but in the event the Deferred

Retirement Option Program participant should

be employed by any such employer within the

next calendar month, termination will be

deemed not to have occurred , except as

provided in s. 121.091(13)(b)4.c. A leave

of absence shall constitute a continuation

of the employment relationship. (emphasis

added)

36. Florida Administrative Code Rule 60S - 11.004 reads in

pertinent part:

(9) Termination of Emp loyment for

Participants Not in the Elected Officers'

Class -- A DROP participant not in the

Elected Officers, Class must terminate

employment on or before the preselected

resignation date specified on Form DP - ELE.

If a participant fails to terminate on o r

before the DROP termination and resignation

date :

(a) Retirement and DROP participation are

voided.

(b) The DROP accumulation and any monthly

retirement benefits are forfeited.

(c) Membership in the member's retirement

plan will be retroactive ly reestablished to

the date the member initiated DROP

participation. (emphasis added)

37. The preponderance of the evidence shows that "all

employment relationships" with Dr. Jain did not terminate,

within the meaning of Section 121.021(39)(b), Flor ida Statutes,

on May 30, 2003.

38. While Dr. Mochena’s actions of assigning summer

classes to Dr. Jain were a result of Dr. Jain's requesting that

he do so, and not at the direction of his administrative

superiors, those actions were ratified at each ad ministrative

level of the University. Most significantly, Dr. Robinson

signed contracts with Dr. Jain, a tenured professor, for Summer

Term "C", entitling him to employment "within the next calendar

month" following his DROP termination date. Moreover, w hile the

FAMU administration did not sign the DROP - VOID form, the

contracts issued to Dr. Jain constitute written approval of

Dr. Jain’s employer regarding modification of his termination

date.

39. The summer contracts entered into between FAMU and

Dr. Jain are clear and unambiguous. Parties are bound by

unambiguous terms of a contract. 2004 WL 840228, 29

Fla.L.Weekly 1002, __So. 2d__ (Fla 1DCA 2004); FAMU’s actions of

writing letters to him after the contracts had been signed by

the parties and in com pleting the Refund for Overpayment of

Salary form, which resulted in $898.76 being withheld from Dr.

Jain’s sick leave payout, were unilateral acts by one party to a

contract attempting to, in effect, rescind the contract.

RECOMMENDATION

Based upon th e foregoing Findings of Fact and Conclusions

of Law set forth herein, it is

RECOMMENDED:

That Respondent enter a final order rescinding its letters

of May 27 and 30, 2003, and reinstating Petitioner to employment

effective June 1, 2003, including al l salary and benefits for

that period of time. 1/

DONE AND ENTERED this 17th day of May, 2004, in

Tallahassee, Leon County, Florida.

S

___________________________________

BARBARA J. STAROS

Administrative Law Judge

Division of Administrative He arings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 17th day of May, 2004.

ENDNOTE

1/ Petitioner in his Proposed Recommended Order requested to be

reimbursed for attorney's fees. Petitioner does not cite to the

authority under which he makes his request.

COPIES FURNISHED:

Linda Barge - Miles, Esquire

Office of the General Counsel

Florida A & M University

300 Lee Hall

Tallahassee, Florida 32307 - 3100

Avery D. McKnight, Acting General Counsel

Office of the General Counsel

Florida A & M University

300 Lee Hall

Tallahassee, Flor ida 32307 - 3100

Arthur Lewis Stern, III, Esquire

1904 Indianhead Drive

Tallahassee, Florida 32301

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions

within 15 days from the d ate 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.