04-002531RU Lonny Ohlfest vs. Miami-Dade Community College, District Board Of Trustees Status: Closed DOAH Final Order on Wednesday, October 6, 2004.

Summary: Petitioner failed to establish that he was entitled to an administrative hearing or that Respondent has a policy to deny hearings to those who are entitled to receive them.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LONNY OHLFEST, )

)

Petitioner, )

)

vs. ) Case No. 04 - 2531RU

)

MIAMI - DADE COMMUNITY COLLEGE, )

DISTRICT BOARD OF TRUSTEES, )

)

Respondent. )

)

FINAL ORDER

Pursuant to notice a formal hearing was held in this case

on August 18, 2004, in Miami, Florida, before J. D. Parrish, a

designated Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Bob Sherin, Q uali fied R epresentative

15805 Southwest 101 Avenue

Miami, Florida 33157 - 1630

For Respondent: Marissa I. Delinks, Esquire

Hinshaw & Culbertson

Southtrust Bank Building

One East Broward Boulevard, Suite 1010

Fort Lauderdale, Florida 33301

STATEMENT OF THE ISSUE

Whether the Respondent, Miami - Dade Community College, has

adopted a statement of agency policy in violation of Florida

law.

PRELIMINARY STATEMENT

This case evolved from a prior proceeding wherein the

Petitioner, Lonny Ohlfest, sought to challenge his dismissal

from employment with the Respondent, Miami - Dade Community

College, District Board of Trustees (Respondent or M DC). In

that matter, the Petitioner claimed he was entitled to an

administrative hearing to contest the basis for his termination.

The Respondent maintained that because the Petitioner had served

as an employee "at will" he was not entitled to an

adminis trative hearing. Thereafter, the Petitioner filed the

instant case, and alleged that the Respondent has a pattern of

refusing to refer petitions to the Division of Administrative

Hearings. Moreover, the Petitioner maintains that this conduct

(of not refe rring dismissal cases for administrative review)

constitutes an unpromulgated rule, an adopted agency policy, in

violation of Florida law.

At the hearing, Bob Sherin represented the Petitioner.

Mr. Sherin, a non - lawyer, was accepted as the Petitioner's

q ualified representative. The Petitioner also participated in

the presentation of his case. The Petitioner testified in his

own behalf and offered Carol Miller, the director of the

Respondent's school of allied health technologies; and Clive

Bridges, the assistant director of employee relations and the

EEOC contract employee for the Respondent, as witnesses in the

matter. The Petitioner's Exhibits 1, 2, 3, 4, 6, 7, 8, 9, 11,

and 12 were admitted into evidence. The Respondent adopted the

testimony present ed in the Petitioner's case and did not present

additional witnesses. The Respondent's Exhibits 1, 2, 3, 4, 6,

7, 8, 9, 10, and 11 were received in evidence.

A transcript of the proceedings was not filed. The parties

filed Proposed Final Orders that ha ve been fully considered in

the preparation of this Final Order. The Proposed Final Orders

were filed with the Division of Administrative Hearings on

August 27, 2004.

FINDINGS OF FACT

1. Prior to August 2, 2002, the Respondent employed the

Petitioner, Lo nny Ohlfest.

2. At the time of his termination, the Petitioner filed a

request for a due process hearing with the Respondent to

challenge his termination from employment. The Petitioner

challenged the basis for his termination as he wanted to clear

his name regarding some unflattering allegations but, equally

important, he wanted to keep his job with MDC.

3. The Respondent denied the Petitioner's request for an

administrative hearing and found that the Petitioner was not

entitled to a hearing. More spe cifically, the Respondent

concluded that since the Petitioner did not have a contract of

employment he was not entitled to an administrative hearing.

4. The Petitioner disputed the Respondent's claim and

argued that he did have a contract, that he had a r easonable

expectation that his employment would continue, and that the

Respondent unlawfully refused to afford him regress through the

administrative process. When the Petitioner's appeal of his

request for an administrative hearing failed, he filed the

i nstant case to challenge the Respondent's policy of not

referring administrative cases for formal hearing. The delays

in the appeal process explain and support the Petitioner's delay

in filing the instant challenge to the agency's alleged rule.

5. To und erstand the historical perspective of this case,

the following findings are made pertinent to the Petitioner's

employment with the Respondent:

a. The Petitioner began employment with the MDC on or

about April 4, 2001. He was hired as a part - time, hourly worker

within the school of allied health technologies. The position

he assumed was funded and operated within the "Health Careers

Opportunities Program" or HCOP.

b. The HCOP was funded by a federal grant. The monies

coming from the grant were renewab le each year and ran

concurrent with the school's fiscal year (July 1 - June 30). All

employees paid through the HCOP grant were considered

"temporary" as the grant monies were necessary to assure

continued employment.

c. In January 2002 the Petitioner was given a full - time

position within the HCOP. He was designated "Program

Leader/Student Services" for the upcoming summer bridge program.

d. At all times material to this case, all parties knew

that absent federal funding the HCOP would not continue to

operate. Moreover, the Petitioner knew, or should have known,

that his employment with the Respondent would run only until

June 30, 2002. Thereafter, it was expected that if and when the

federal funding came through, the HCOP employees (including the

Pet itioner) would continue to work within the scope of the

program.

e. At the end of the summer program in 2001, the HCOP

employees took leave until the school year started and the

funding of the program was assured. Accordingly, after the

summer bridge pro gram was completed, the Petitioner expected to

be on leave during the summer of 2002 until called back to work.

f. Instead, the Respondent terminated the Petitioner from

employment. The 2002 summer bridge program had not finished

well for the Petitioner. Amid allegations of sexual harassment

(unsubstantiated and not at issue in this proceeding) the

Petitioner's working relationship within the HCOP floundered.

The Petitioner was aghast that unsubstantiated claims had been

reported, he wanted the accusati ons resolved, he wanted his name

cleared, and he was disappointed by the process that failed to

timely and fully resolve the issues.

g. When the Petitioner left the campus for what he

believed would be the break (similar to the one they had taken

the prior year), he was uncertain as to his employment status.

In fact, when he left the campus he cleaned out his desk and

returned his keys.

h. Nevertheless, on July 26, 2002, Dr. Miller directed the

Petitioner to present for work on July 29, 2002. He did not do

so.

i. On July 29, 2002, the Petitioner's immediate supervisor

directed him to appear for work on July 30, 2002. He did not do

so. In fact, the Petitioner did not return to the office until

July 31, 2002. The Petitioner did not understand tha t his

attendance was mandatory for the two days that he did not appear

for work. When the Petitioner did check in with the HCOP office

on the 31st he came to understand the gravity of the situation.

j. As a result of the absences, the Respondent cited th e

Petitioner with insubordination and terminated his employment

with MDC.

k. The Petitioner timely challenged the termination but

the Respondent ruled he was not entitled to an administrative

review of the decision.

6. The Petitioner filed for, and rec eived, unemployment

compensation. The termination was not justified by the

standards applicable to that forum. The rules governing

unemployment compensation do not, however, govern the

administrative process regarding whether or not one's employment

cons titutes a property interest that is protected by law.

7. Upon receipt of the Petitioner's petition seeking an

administrative review, the Respondent declined to afford the

Petitioner with a hearing.

8. The Respondent does not forward petitions filed by non -

contract employees when such individuals seek to challenge their

termination of employment. The Respondent maintains that, as a

matter of law, they are not required to forward such petitions

for formal review. The Respondent does not have a written r ule

or policy stating that non - contract employees are not entitled

to administrative review when their employment is terminated.

Conversely, the Respondent does not have a written rule or

policy stating that non - contract employees are entitled to an

admin istrative review when their employment is terminated.

9. The Petitioner was not a full - time, contract employee

of the Respondent.

10. The Respondent's policy affords full - time contractual

personnel a right to an administrative hearing pursuant to

Chapter 120, Florida Statutes.

CONCLUSIONS OF LAW

11. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of these

proceedings. §§ 120.54, 120.56, 120.569, and 120.57(1), Fla.

Stat. (2004).

12. Section 120.52(2) , Florida Statutes (2004), defines

"agency action" as "the whole or part of a rule or order, or the

equivalent, or the denial of a petition to adopt a rule or issue

an order. The term also includes any denial of a request made

under section 120.54(7)."

13 . Section 120.52(15), Florida Statutes (2004), defines

"rule." Such section provides:

"Rule" means each agency statement of general

applicability that implements, interprets, or

prescribes law or policy or describes the

procedure or practice requirements of an

agency and includes any form which imposes

any requirement or solicits any information

not specifically required by statute or by an

existing rule. The term also includes the

amendment or repeal of a rule. The term does

not include:

(a) Internal management memoranda which do

not affect either the private interests of

any person or any plan or procedure important

to the public and which have no application

outside the agency issuing the memorandum.

(b) Legal memoranda or opinions issued to an

ag ency by the Attorney General or agency

legal opinions prior to their use in

connection with an agency action.

(c) The preparation or modification of:

1. Agency budgets.

2. Statements, memoranda, or instructions to

state agencies issued by the Chief Financial

Officer or Comptroller as chief fiscal

officer of the state and relating or

pertaining to claims for payment submitted by

state agencies to the Chief Financial Officer

or Comptroller.

3. Contractual provisions reached as a

result of collective b argaining.

4. Memoranda issued by the Executive Office

of the Governor relating to information

resources management.

14. Section 120.56(4), Florida Statutes (2004), provides

in pertinent part:

(a) Any person substantially affected by an

agency stat ement may seek an administrative

determination that the statement violates s.

120.54(1)(a). The petition shall include

the text of the statement or a description

of the statement and shall state with

particularity facts sufficient to show that

the stateme nt constitutes a rule under s

120.52 and that the agency has not adopted

the statement by the rulemaking procedure

provided by s. 120.54.

15. Section 120.54(1)(a), Florida Statutes (2004),

provides:

Rulemaking is not a matter of agency

discretion. Each agency statement defined

as a rule by s. 120.52 shall be adopted by

the rulemaking procedure provided by this

section as soon as feasible and practicable.

16. In this case, the Petitioner maintains that the

Respondent has a statement of agency policy th at has not been

properly adopted through the rulemaking procedures set forth by

law. Pursuant to this "agency statement," employees such as the

Petitioner are denied their right under the A dministrative

P rocedures A ct to challenge decisions that affect th eir material

interests. More specifically, the Petitioner maintains that he

was entitled to an administrative hearing to challenge his

dismissal from his employment, that others are also denied an

opportunity to challenge employment decisions, and that th e

agency statement of general applicability (to deny hearings to

similarly situated employees) constitutes a violation of Florida

law. The Petitioner bears the burden of proof in this cause to

establish the factual and legal basis for his contentions. He

has failed to meet that burden.

17. Under Florida law, an "at will" employee does not have

a property interest in his continued employment. Absent a

contract, the Petitioner served as an "at will" employee. As

such, the Respondent was not required to s how "just cause" for

his termination. In fact, the Respondent did not have "just

cause" for the Petitioner's termination because he did not

abandon his position. Although the Petitioner did not take

proper leave for the days he missed and did not provide an

adequate excuse for why he did not appear for work, the

Respondent was not required by law to retain an employee who did

not have a contract. Absent a contract (or recognized

protection by virtue of membership within a protected class of

employment -- n ot at issue here), the Petitioner's employment

could be terminated for any reason. The Petitioner was not

protected by a contract nor was he a member of a protected class

of MDC employees. Therefore, the Petitioner has failed to prove

he had a legitimate property interest in his employment with the

MDC.

18. To establish a "property interest" in employment for

due process purposes, one must establish that there is a rule,

contract, or other explicit understandings that support that

claim. See Perry v. Sindermann , 408 U.S. 593, 92 S.Ct. 2694

(1972). As stated above, the Petitioner did not have an

employment contract. Additionally, absent the federal funding

for his position, he clearly knew he would not have employment

with the Respondent. He had an e xpectation that he could

continue from year - to - year but no legal guarantee of that

position. Clearly, the MDC did not have an explicit

understanding that this employee (or any within the HCOP) would

be guaranteed employment with the Respondent.

19. Final ly, the Petitioner has also failed to establish

that the Respondent has any statement of general applicability

that has not been promulgated by rule that would deny those

within a protected class (those with contracts or membership

within a protected class ) of an administrative hearing to

challenge terminations of their employment. Simply stated, the

Respondent's policy does afford administrative hearings to those

who are entitled to challenge dismissal. That this rarely

happens does not establish that th e Respondent does not refer

cases for hearing or that it denies administrative remedies to

those who are entitled to them.

20. Any employee terminated from employment for less than

"just cause" might take Petitioner's position. It seems unfair,

and per haps it is unfair to the sensibilities of ordinary

people. But what is "unfair" in a moral or common decency sense

does not equal "unlawful" in the legal sense. Only individuals

with a vested property interest in their employment may

challenge the basis for their dismissal. Bishop v. Wood , 426

U.S. 341, 96 S. Ct. 2074 (1976). Pursuant to the Respondent's

rules and policies the Petitioner did not have a contract or

property interest in his employment. Petitioner served as an

"at will" employee. As an " at will" employee he does not have

standing to challenge the policy of denying administrative

hearings to contract employees and he has not proved that the

Respondent does, in fact, deny such hearings to those who are

entitled to challenge their dismissal.

ORDER

Based on the foregoing Findings of Fact and Conclusions of

Law, it is ORDERED that the instant case is hereby dismissed.

DONE AND ORDERED this 6th day of October 2004, in

Tallahassee, Leon County, Florida.

S

J. D . PARRISH

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 6th day of October 2004.

COPIES FURNISHED :

Lonnie Ohlfest

6000 Southwest 72nd Avenue

Miami, Florida 33143

Bob Sherin

15805 Southwest 101 Avenue

Miami, Florida 33157 - 1630

Carmen Dominguez, Esquire

Miami - Dade C ommunity College

300 Northeast Seconnd Avenue, Room 1410

Miami, Florida 33132 - 7654

Marissa I. Delinks, Esquire

Hinshaw & Culbertson

One East Broward Boulevard, Suite 1010

Fort Lauderdale, Florida 33301

Liz Cloud, Program Administrator

Administrative Cod e

Department of State

R. A. Gray Building, Suite 101

Tallahassee, Florida 32399

Scott Boyd

Executive Director/General Counsel

Joint Administrative Procedures Committee

120 Holland Building

Tallahassee, Florida 32399 - 1300

NOTICE OF RIGHT TO JUDICIAL RE VIEW

A party who is adversely affected by this Final Order is

entitled to judicial review pursuant to Section 120.68, Florida

Statutes. Review proceedings are governed by the Florida Rules

of Appellate Procedure. Such proceedings are commenced by

filing the original Notice of Appeal with the agency clerk of

the Division of Administrative Hearings and a copy, accompanied

by filing fees prescribed by law, with the District Court of

Appeal, First District, or with the District Court of Appeal in

the Appellat e District where the party resides. The notice of

appeal must be filed within 30 days of rendition of the order to

be reviewed.