16-007342 Dale Cassidy vs. Florida A &Amp; M University Board Of Trustees Status: Closed Recommended Order on Thursday, April 13, 2017.

Summary: Petitioner failed to prove entitlement to additional salary or benefits stemming from reassignment of position.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DALE CASSIDY,

Petitioner,

vs. Case No. 16 - 7342

FLORIDA A & M UNIVERSITY BOARD

OF TRUSTEES,

Respondent.

_______________________________/

RECOMMENDED ORDER

Pursuant to notice, a fin al hearing was conducted in this

case on February 15, 2017 , in Tallahassee , Florida, before

Administrative Law Judge R. Bruce McKibben of the Division of

Administrative Hearings (ÐDOAHÑ or the ÐDivisionÑ) .

APPEARANCES

For Petitioner: Dale Lange Cassi dy, pro se

3474 East Falcon Drive

Meridian, Mississippi 83642

For Respondent: Ana Margarita Gargollo - McDonald, Esquire

Florida A & M University

1700 Lee Hall Drive, Suite 304 FHAC

Tallahassee, Florida 32307

STATEMENT OF THE ISSUE S

Th e issue in this case is whether Respondent , Florida A & M

University Board of Trustees (ÐBoard of TrusteesÑ) , improperly

reassigned Petitioner, Dale Cassidy, to an alternative position

at F lorida A & M U niversity (ÐFAMUÑ or the ÐUniversityÑ) ; and,

if so , whether Petitioner is entitled to damages or other

relief .

PRELIMINARY STATEMENT

On December 2, 2016, Petitioner filed a request for formal

administrative hearing regarding actions taken by the University

on March 16, 2016, concerning PetitionerÓs emp loyment at FAMU .

The request for hearing was forwarded to the Division of

Administrative Hearings for assignment of an Administrative Law

Judge (ÐALJÑ) in accordance with a contract between the

University and the Division. Pursuant to notice, a hearing w as

conducted by the undersigned ALJ on the date set forth above.

At the final hearing, Petitioner testified on his own

behalf and called the following additional witnesses , each of

whom is an employee of FAMU : Richard Givens, vice president of

Audit and C ompliance ; Timothy Moore, vice president of Research ;

and Joyce Ingram, chief human relations (ÐHRÑ) officer.

Petitioner Ós E xhibits 1 , 7, 8, and 9 were admitted into

evidence. The University did not call any witnesses to testify

at final hearing. The Un iversityÓ s Exhibits 4, 5, and 7 , along

with ÐrebuttalÑ exhibits A, B, C, M, N and O were admitted into

evidence. The rebuttal exhibits were introduced during

PetitionerÓs case in chief and were used to establish facts to

prove FAMUÓs case, but counsel des ignated them as ÐrebuttalÑ

exhibits and they were accepted as such. All 19 joint exhibits

were also accepted into evidence.

The parties indicated that a transcript of the final

hearing would be ordered. By rule, the parties are allowed up

to 10 days aft er the transcript of the final hearing has been

filed at DOAH to submit a proposed recommended order ( Ð PRO Ñ );

however, the parties asked an d were granted an additional

10 days . The T ranscript was filed on March 17, 2017 , and the

PROs were due on or before April 6 , 2017 . Each party timely

submitted a PRO and each was duly considered in the preparation

of this Recommended Order.

FINDINGS OF FACT

1 . Petitioner is a fo r mer employee of the Unive rsity. He

was hired in 2014 as vice president of Finance and

A dministration/Chief Financial Officer (Ðvice president of

Finance/CFOÑ) . He assumed the position at a starting annual

salary of $195,000. In August 2015 , he assumed additional

duties and his salary was increased to $220,000 in recognition

of the addition al respo nsibilities. Petitioner served as vice

president of Finance/CFO until March 14, 2017.

2 . Respondent is the Board of Trustees for FAMU, a

university within the State U niversity S ystem. FAMU is a

nationally known, historically black college locat ed in

Tallahassee, Florida.

3 . On Friday, March 11, 2016, Petitioner was visited in

his office at FAMU by two individuals: Jimmy Miller and

Santoras Gamble. The two came into his office as emissaries of

the then - President of FAMU, Elmira Mangum. Mill er was President

MangumÓs chief of staff; Ga mble was a Ðspecial assistantÑ to the

President. The purpose of Miller and GambleÓs visit was to

hand - deliver to Petitioner a letter signed by the President

notifying Petitioner of a Ðchange - in - assignment.Ñ

4 . Specifically, Petitioner was being removed from his

position as vice president of Finance / CFO and re assigned to the

newly created position of Chief External Compliance and Ethics

Officer (referred to herein as the ÐEthics OfficerÑ). His

annual salary in t hat position would be reduced to $176,000 and

he would receive normal (as opposed to enhanced) fringe

benefits. 1/ He would no longer be eligible to participate in the

Executive Service pay plan which existed for certain high - level

administrat ive and profe ssional (ÐA&P Ñ ) staff . PetitionerÓs

change in assignment was to take effect the following Monday,

March 14, 2016.

5 . Petitioner read the letter from President Mangum and

dropped it on his desk. The two emissaries asked if he had any

questions about the letter. He either told them he did not have

any questions or he told them, Ð [ no question s ] that you can

answer.Ñ Either way, t hat was the end of the discussion between

Petitioner and the two representatives of President Mangum.

Miller , Gamble , and Petit ioner then left PetitionerÓs office and

toured Lee Hall, purportedly looking for a new office for

Petitioner once he assumed his new role . President MangumÓs

office is also located in Lee Hall. Petitioner was ultimately

moved to an office in the Foote - Hi lyer building.

6 . On the day after the reassignment took effect, Jimmy

Miller, as President MangumÓs chief of staff, issued a

memorandum to the Board of Trustees. The memorandum outlined

the changes in senior leadership assignments, including

PetitionerÓ s reassignment to the position of Ethics Officer. 2/

7 . Over the next couple of weeks, Petitioner made his

displeasure with the reassignment made known to a number of

people . He was , however, especially unhappy that news of his

reassignment (and p resump tive demotion) was report ed in the

Tallahassee Democrat , the local newspaper .

8 . Petitioner moved into his new office on the f ourth

floor of the Foote - Hily e r building , in a suite of offices

occupied by the vice president of Research , within two weeks of

receiving the job change notice. On the day before he moved

into his new office, Petitioner drafted a memorandum to his

personnel file concerning his reassignment. The memo included

the statement, ÐI accept this new role and pledge to perform the

relate d duties . . . to the best of my ability.Ñ

9 . On the day he assumed the new position, Petitioner

wrote a nother memo that he asked to be placed in his personnel

file. In the memo , Petitioner essentially complained that he

had not been given any specific r eason for the reassignment from

the position of vice president of Finance/CFO . The memo did not

mention that President MangumÓs emissaries had asked him if he

had questions a bout the letter or that he had no questions for

them . Petitioner did not point t o any requirement in University

regulations (or otherwise) that the President was required to

give him a specific reason for the transfer. In fact, all A&P

employees serve at the pleasure of the President and could have

their employment terminated at any time, with or without cause.

10 . Petitioner received a request from President Mangum

for him to meet with her concerning the change in assignment .

The meeting was held (albeit on a day other than proposed by the

P resident , pursuant to PetitionerÓs requ est). At the meeting,

ultimately held on March 21, 2016, Petitioner was presented with

his new employment contract for the Ethics Officer position. He

refused to sign the contract, citing his reasons, to wit: 1) He

had not been told specific reasons why he could no longer serve

as vice president of Finance/CFO ; and 2) t he President had not

shared with him her vision of how she expected him to perform

his duties in the new role . By not signing the employment

contract , he knew that President Mangum would be within her

rights to terminate his employment altogether. Petitioner seems

to acknowledged that President Mangum ÐconsultedÑ him about the

new job classification at the meeting. He maintains, however,

that it was too late to hold the consultation at t hat time. He

provided no support or rationale for his stance.

11 . Petitioner then attempted to negotiate a different job

description for the position to which he had been assigned. He

asked for more salary, that the position be ÐinterimÑ in nature,

and that he retain his Executive Service benefits. President

Mangum informed him that the UniversityÓs human relations

department had Ðmarket pricedÑ the salary and that it would not

be changed. There is no evidence the other issues he raised

were discussed at that time (or later, for that matter) .

12 . As noted, Petitioner moved into his new office space

on March 14 , 2016, and by all appearances , assume d his duties as

the Ethics Officer. He nevertheless maintains he did not

believe he had ever formally se rved in that capacity. This

testimony contravenes a memo he wrote on the day of his meeting

with President Mangum. The memo, written to his personnel file ,

said, ÐI currently plan to accept the role [of Ethics Officer].Ñ

O n June 21, 2016, Petitioner att ended a seminar in Orlando

relating to ethics and compliance officer regulations. In his

travel request form, Petitioner identifies himself as ÐOfficer,

ComplianceÑ and affirmed that the seminar constituted official

business. His travel was approved and he attended the seminar.

At final hearing, Petitioner said he attended the seminar as Ðan

employee of the universityÑ but not as the Ethics Officer.

There is no evidentiary support for that contention and it seems

unlikely in light of his travel document s.

13 . From March 14, 2016 , until his resignation from

employment , effective December 29, 2016, Petitioner was

considered by the University to be its Ethics Officer. He

performed duties associated with that position , operated out of

the office assigned t o that position, and accepted compensation

for serving in that position. The University human resources

officer (who was called as a witness by Petitioner at final

hearing) opined that PetitionerÓs actions clearly confirmed that

he had accepted the positi on.

14 . A further example : O n August 19, 2016, Petitioner

issued a report on matters relating to his position as Ethics

Officer. He signed the report, noting his position as ÐActing

Chief Compliance & Ethics Officer.Ñ Petitioner said he signed

the re port that way because FAMU did not have ÐactingÑ

administrative employees ; they were either permanent or interim.

However, Regulation 10.106(1)( b) states, ÐA&P employees who are

appointed to established positions with an appointment status

modifier or typ e, other than Regular (for example, Acting,

Temporary or Visiting) are not entitled to a notice of non -

reappointment.Ñ Granted that section is referring to non -

reappointment and addresses established positions, neither of

which is relevant to the instant matter, but it does show that

ÐActingÑ is a nomenclature used by FAMU for A&P employees .

15 . Petitioner is seeking the difference in pay and

benefits he received as Ethics Officer versus what he had been

making as vice president of Finance/CFO , for the time period

March 14 through December 29, 2016 . He asserts that since he

never signed the contract to be Ethics Officer, he never

officially served in that position. The Personnel Action

Request (ÐPARÑ) in PetitionerÓs personnel file was signed by

Presid ent Mangum , the approp riate vice president (Ronica

Mathis), and the HR Officer ; and it clearly reassigns Petitioner

to the position of Ethics Officer, effective March 14, 2017.

The PAR, which sets out the employeeÓs current position,

proposed new position , salary and other information, need not be

signed by the employee. He or she would only be provided a copy

of the PAR if they requested to review their personnel file.

16 . When asked what services he performed during his

tenure as Ethics Officer, Peti tioner responded, ÐWhatever the

President , as my supervisor, asked me to do , which was largely

nothing .Ñ Petitioner did not provide further elucidation as to

how doing Ð largely nothingÑ warranted additional payment from

the University.

17 . Petitioner mai ntains he was not properly advised of

his proposed reassignment pursuant to relevant University

regulations. He cites to Regulation 10.209 , Change - In -

Assignment of Faculty and Administrative and Professional

Employees , which states in pertinent part :

The President or PresidentÓs designee may

for the best interest of the University, at

any time, assign a Faculty or Administrative

and Professional (A&P) employee to other

institutional assignments only after

consultation with the employee and the

departments or other units affected.

Regardless of the change - in - assignment,

however, the University is committed to

compensate the employee.

18 . Despite being asked by the PresidentÓs designees

( Miller and Gamble) on March 11 , 2016, whether he had any

questions about the reassignment, Petitioner maintains he had no

ÐconsultationÑ as required by the regulation. Rather, he

posits, all he received was ÐnoticeÑ of the reassignment.

Petitioner points out that the dictionary definitions of

consultation and notice are different and they do not share the

same synonyms. From PetitionerÓs perspective, consultation

would involve some degree of give and take between the President

and the employee. Or, as he stated in his PRO filed in this

case, the synonym for consultatio n is Ðasked to discuss or

exchange viewsÑ of a matter. Petitioner says that Miller and

Gamble asking him if he had any questions was not sufficient

ÐconsultationÑ on the matter. Petitioner provided no other

support for his position.

19 . Further, Petitio ner points out that Richard Givens,

vice president of Audit and Compliance, was not notified about

PetitionerÓs reassignment. Petitioner maintains that GivensÓ

office was affected by the reassignment and thus should have

been consulted as well. Givens st ated at final hearing that his

office Ðcould have been affectedÑ by the reassignment, but

ultimately it had not been affected.

20 . Timothy Moore, vice president of Research, maintains

that consultation means nothing more than a letter, email, phone

call o r other means of transmitting the fact to an employee.

Clearly , Petitioner was provided notice of the reassignment and

had opportunity to consult with the PresidentÓs representatives,

but he refused to do so. Givens received notice of the

reassignment wh en he read about it in the local newspaper. He

does not remember being advised by anyone at FAMU concerning the

change before it occurred , but received written notice on the

day Petitioner started his new position .

CONCLUSIONS OF LAW

21 . T he Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding pursuant to a contract between the Division and FAMU .

The proceeding was conducted in accordance with s ections

120.569 and 120.57(1), Florida Statutes. Unless specifically

set forth otherwise herein, all references to statutes will be

to the 201 6 version.

22 . Petitioner has the burden of proving that the

employment action taken by the University was improper . See

Balino v. DepÓt of HRS . , 348 So. 2d 34 9, 350 (Fla. 1st DCA

1977) (Ð[T]he burden of proof, apart from statute, is on the

party asserting the affirmative of an issue before an

administrative tribunal.Ñ) ; s ee also § 120.57(1)(j), Fla. Stat.

23 . The standard of proof is by a preponderance of the

e vidence. See Fla. DepÓt of Transp. v. J.W.C. Co. , 396 So. 2d

778 (Fla. 1st DCA 1981) ; § 120.57(1)(j), Fla. Stat.

24 . At issue in this proceeding is the interpretation and

implementation of a n internal University regulation,

specifically 10.209. Petition er maintains that Ð consultation Ñ

as it appears in the regulation is something separate and apart

from notice. His interpretation is based solely on dictionary

definitions of those words; there is no definition of the terms

found within the University Regu lations.

25 . The University clearly explained why ÐconsultationÑ in

the context of regulation 10.209 need only be some kind of

notice to the employee. It is axiomatic that an agencyÓs

interpretation of its own rules and regulations is given

deference. L egal Envtl. A ssistance Found . , Inc. v. Bd. o f Cnty .

CommÓrs of Brevard C nty . , 642 So. 2d 1081 (Fla. 1994).

26 . Petitioner proved by a preponderance of evidence that

the only consultation or notice he received about his change - in -

assignment was a letter from President Mangum. However,

Petitioner did not prove that the letter was insufficient

ÐconsultationÑ about the change. His own actions , refusing to

talk to the PresidentÓs designees when they delivered the

letter , further rebut his claim of no consul tation. Whether the

emissaries of the President would have provided further

elucidation about the new assignment, ÐconsultedÑ further with

Petitioner about the position, or provided additional

information will never be known. Petitioner by his own decisi on

rejected any further input from the two individuals who provided

him notice of the change.

27 . T he University Regulations are also silent as to the

penalty for failing to comply with Regulation 10.209. No

evidence was presented to suggest that failure of the University

to follow the regulation (if in fact it had failed to d o so)

would give rights to an aggrieved party for damages or other

relief.

28 . Petitioner is also guilty of unclean hands in this

matter. His continued acceptance of a salary fro m FAMU while

admittedly doing no work whatsoever taints his credibility and

brings into question his forthrightness in making this claim .

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that a final order be entered by Respondent,

Florida A & M University Board of Trustees, upholding the

employment action as to Petitioner, Dale Cassidy, and denying

PetitionerÓs claim for damages or other relief .

DONE AND ENTE RED this 1 3 th day of April , 2017 , in

Tallahassee , Leon County, Florida.

S

R. BRUCE MCKIBBEN

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 1 3 th day of April, 2017 .

ENDNOTES

1/ It is apparently not unusual for senior employees at FAMU to

be reassigned and given lower salaries.

2/ There was an erro r in MillerÓs memorandum concerning the

position of Compliance Officer, but the error was corrected

quickly and is not relevant to the facts of this case.

COPIES FURNISHED:

Dale Lange Cassidy

3474 East Falcon Drive

Meridian, Mississippi 83642

(eServed )

Shira R. Thomas, Esquire

Florida A & M University

FHAC , Suite 304

1700 Lee Hall Drive

Tallahassee, Florida 32307 - 3100

(eServed)

Ana Margarita Gargollo - McDonald, Esquire

Florida A & M University

1700 Lee Hall Drive, Suite 304 , FHAC

Tallahassee, Florida 32307

(eServed)

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 i ssue the Final Order in this case.