17-004950 Ka&Apos;Juel J. Washington vs. Florida A And M University College Of Law Status: Closed Recommended Order on Wednesday, May 30, 2018.

Summary: Petitioner failed to prove he was discriminated against; Recommend dismissal of the allegation. Petitioner's employment was terminated for misconduct and incompetence.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

KA'JUEL J. WASHINGTON,

Petitioner,

vs. Case No. 17 - 4950

FLORIDA A AND M UNIVERSITY

COLLEGE OF LAW,

Respondent.

_______________________________/

KA'JUEL WASHINGTON,

Petitioner,

vs. Case No. 17 - 5340

FLORIDA A AND M UNIVERSITY BOARD

OF TRUSTEES,

Respondent.

_______________________________/

RECOMMENDED ORDER

An evidentiary hearing was conducted on January 24 and 25,

and February 26 and 27 , 2018, by video teleconfer ence with sites

in Orlando and Tallahassee, Florida, before Administrative Law

Judge Lynne A. Quimby - Pennock of the Division of Administrative

Hearings (DOAH).

APPEARANCES

For Petitioner: Jerry Girley, Esquire

The Girley Law Firm

125 East Marks Street

Orlando, Florida 32803

Ka'Juel Washington, Esquire

The Washington Trial Group, PLLC

37 North Orange Avenue , Suite 500

Orlando, Flo rida 32801

For Respondent s : Maria A. Santoro, Esquire

Teresa Cooper Ward, Esquire

Dennis, Jackson, Martin & Fontela, P.A.

1591 Summit Lake Drive , Suite 200

Tallahassee, Florida 323 17

STATEMENT OF THE ISSUE S

The issues in this case are:

1) whether Petitioner, KaÓJuel Washington, was subject to

discrimination by the Florida A & M University College of Law

(FAMU - COL) on the basis of race, color, sex, or age, 1/ and, if so,

what remedy is appropriate; and

2) whether the Florida A & M University Board of Trustees

(FAMU - BOT) wrongly terminated Petitioner Ós employment. 2/

PRELIMINARY STATEMENT

Discrimination Allegation

On March 6, 2017, Petitioner filed an employment complaint

of discrimin ation with the Florida Commission on Human Relations

(FCHR) against the FAMU - COL . In the complaint , Petitioner

alleged that he was (as of March 6, 2017) a 41 - year - old African -

American , who worked for the FAMU - COL between November 2006 and

June 2016. 3/ Pe titioner alleged that he Ðwas discriminated

against by a female dominated department because [he was] a dark -

skinned, African - American, heterosexual Christian male.Ñ

Petitioner Ós complaint also alleged that a female adjunct

instructor, who had less experi ence than he, was awarded a

contract to work the summer 2016 schedule while he was not, and

that he Ðwas terminated from [his] job for these reasons.Ñ

FCHR conducted an investigation, after which it issued its

determination of no reasonable cause on Augu st 25, 2017, finding

that Ðthe facts and evidence as set forth . . . do not support

the [ Petitioner Ós] allegation , Ñ and Petitioner Ðdid not provide

any credible evidence to prove that he was subjected to different

terms and conditions of employment based o n his race, sex, age

and religion.Ñ

On September 1, 2017, Petitioner timely filed a Petition for

Relief (Petition) with FCHR. The Petition contained the

following handwritten response to the request for a concise

statement of the ultimate facts alleged:

The Ultimate Facts will Demonstrate That The

Petitioner was subjected to unlawful

Discrimination in violation of Chapter 760 of

The Florida Statutes. The Petitioner was

removed from The Summer Teaching Schedule and

replace d by a Female of Indian decent [ sic ] .

The Petitioner was also issued undue

reprimands and ultimately terminated for

alleged poor performance and unauthorized

outside employment. The Petitioner actually

had permission to work an outside job, but he

never did so until his employment with the

Respondent was interrupted. Additionally,

the Petitioner was admonished for not

attending a ÐVoluntaryÑ event which took

place on the day he normally attended

Christian religious services.

Petitioner was asked which Florida Statute he alleged FAMU -

COL had violated. A check mark designated the ÐFlorida Civil

Rights Act of 1992, as Amended.Ñ Petitioner provided the

explanation of how the alleged facts related to the specific

Florida Statute:

The Facts Delineated in Paragraph #5 State

violations of the Law based upon, Gender

race, Color, XXXX and AGE.

FCHR timely referred the matter to DOAH for assignment of an

Administrative Law Judge to conduct all necessary proceedings.

This case was assigned DOAH C ase No. 17 - 4950.

Termination Allegation

By let ter dated June 15, 2016, the FAMU - BOT notified

Petitioner that his employment with the FAMU Î COL was terminated,

immediately. The termination action was taken against Petitioner

for his Ðmisconduct in the workplace as well as incompetence in

the exercise o f [his] duties as an employee of FAMU.Ñ Attached

to the two - page termination letter were approximately 60 pages of

university memoranda in support of the action.

On September 18, 2017, following the completion the FAMU - BOT

ÐStep 1Ñ and ÐStep 2Ñ grievanc e procedures , Petitioner filed a

ÐStep 3 Request for Hearing pursuant to FAMU Regulations 10.206.Ñ

One week later, Florida A & M University (FAMU) President Larry

Robinson 4/ referred the matter to DOAH for an administrative

hearing. This case was assigne d DOAH C ase No. 17 - 5340.

Consolidated Cases

On October 23, 2017, counsel for Respondent s FAMU - COL and

FAMU - BOT, filed a motion to consolidate and continue the final

hearing in both DOAH cases. Following a telephonic motion

hearing, both motions were grant ed and the case was scheduled for

a two - day hearing beginning January 24, 2018.

Prior to the hearing, Respondent s filed a Pre - hearing

Statement which offered six points on which Respondent s thought

there would be agreement. Those six points were discuss ed at the

start of the hearing, and with a modification to two of the

statements, both parties agreed to the statements. To the extent

the statements are relevant , they are incorporated in the

findings below.

At the final hearing, Petitioner testified on his own behalf

and also presented the testimony of Ann Marie Cavazo s, professor

of law and former d irect or of the Clinics at FAMU - COL;

Angela Felecia Epps, professor of law and former d ean of the

FAMU - COL; Leroy Pernell, professor of law, former d ean of t he

FAMU - COL and its Interi m Dean; Marcella David, former p rovost of

FAMU and current professor of law; Maritza Reyes, professor of

law at the FAMU - COL; and Andrew Ladores, Esquire. Petitioner Ós

Exhibits 1, 2, 5, 6, 8, 14, 16, 19, 23, and 32 were admitted into

evidence.

In addition to former Provost David , Professor Cavazos,

Professor Epps, and Dean Pernell, Respondent s called

David Hamilton Jackson, Jr., Ph.D., professor of history,

Associate Provost for Graduate Education and Dean of the FAMU

School of Graduate Studies and Research; Cynthia Hughes Harris,

Ph.D., professor and Dean of the FAMU School of Allied Health

Services; Mildred Graham, director of Advancement and Alumni

Affairs at FAMU; and Ashley Rawlings Boatwright, Esquire.

Respondent s Ó Exhibi ts 1, 2, 5, 7 through 12, 14 through 16,

20 through 24, 28 through 31, 33 through 36, 38, 41, 46, 51, and

the deposition testimony of Ashley Rawlings Boatwright were

admitted in evidence. Respondent s Ó Exhibits 25 and 26 were

offered , with their admissibil ity taken under advisement. At

this time, those two exhibits are admitted.

At the conclusion of the hearing, the deadline for the

parties to file proposed recommended orders (PROs) was discussed.

The parties were informed the deadline, provided by rul e, is ten

days after the transcript is filed at DOAH. Petitioner requested

additional time, and Respondent s did not object. The PRO

deadline was established at 30 days after the filing of the

complete transcript.

The Transcript of the hearing was filed o n three separate

days: February 12 and 28, and March 26, 2018. On March 26,

2018, Petitioner filed a request for extension of time to file

findings of fact and conclusion of law without complying with

Florida Administrative Code Rule 28 - 106.204(3). The request for

an extension of the PRO deadline was denied at that time.

Respondent s timely filed their PRO, which has been considered in

the rendering of this Recommended Order. To date Petitioner has

not filed a PRO.

FINDING S OF FACT

1. Petitioner is an African - American male, whose date of

birth is November 27, 1975. Petitioner graduated from the FAMU -

COL in 2005.

2. Petitioner was an i nstructor at the FAMU - COL Legal

Clinics (Clinics) from October 2009 to May 2016. Petitioner was

not tenured and was not tenure seeking at the FAMU - COL.

Petitioner Ós last contract with the FAMU - COL was executed in

May 2015 for employment from August 3, 2015 to May 6, 2016.

3. University Professor Cavazos was the director of the

Clinics.

4. University Professor Per nell was dean of the FAMU - COL

from 2008 to 2015. During the hearing, Dean Pernell was serving

as the FAMU - COL interim dean.

5. University Professor Epps 5/ became d ean of the FAMU - COL

in January 2016. As she was preparing for her new position,

Dean Epps made it known that she wanted to have one - on - one

meetings with each faculty member. She prefers to meet members

of the faculty in their own office environment because that can

give her a sense of each person.

6. Petitioner began preparing a power - poin t presentation

and a 15 - page ÐAnnual ReportÑ about the Clinics on November 10,

2015. At no time between November 10th and when he made his

presentation to Dean Epps, did Petitioner discuss its contents

with his supervisor, Director Cavazos.

7. As he was preparing the power - point presentation and

report, Petitioner contact ed Ms. Graham, the director of

A dvancement and A lumni A ffairs. Ms. Graham manages and handles

all FAMU - COL public relations, media relations, fundraising

(including restricted and unrest ricted endowment funds),

development, support, advancement activities and special events.

In response to a request by Petitioner , Ms. Graham determined

that she was not able to provide him with information on all

donors, gifts, contributions, endowments o r grants made to the

FAMU - COL.

8. In 2005, the Walt Disney World Company (Disney) pledged

$250,000 to the FAMU - COL. The goal of this endowment was to

support a pro bono legal clinic created to serve indigent

children, youth and family legal issues. The FAMU president at

the time of the endowment determined to use the money to endow a

professorship. Disney fulfilled its pledge in three years, and

the money has been invested since its receipt. Although Disney

was asked by the FAMU - COL if it could use the endowment in a

different way, no money has been spent from the Disney endowment.

The endowment has not been misused or misappropriated.

9. Petitioner reached out to Dean Epps and scheduled an

appointment with her shortly after she began her tenure as d e an.

Petitioner did not schedule the appointment for his own office,

but instead set up in a FAMU - COL classroom. Petitioner spread a

tablecloth with the FAMU logo on a table, along with a mug, a

bottle of water, a pad of paper and a pen for Dean Epps.

Pe titioner Ós presentation included information about what legal

clinics were offered, clinical instructors, other personnel, the

ClinicsÓ expenses, clients, grants, funding, student enrollment,

student jobs and Petitioner Ós C urriculum V itae with his contact

information.

10. Dean Epps thought Petitioner was Ðauditioning for the

Clinic directorÓs positionÑ which confused her because she did

not know that Dir ector Cavazos was leaving.

11. Immediately after Petitioner Ós presentation, Dean Epps

attended the FA MU - COL school faculty function where she was to

see the Clinics Ó setting and meet ÐeveryoneÑ : instructors;

adjuncts; and the Fellows. 6/ After the function, Dean Epps told

Director Cavazos of Petitioner Ós presentation (including the

tablecloth and mug) an d inquired of Director Cavazos if she were

leaving. Director Cavazos replied Ðnot that IÓm aware of. At

least not this moment.Ñ

12. Director Cavazos then told Dean Epps that she was

unaware of Petitioner Ós presentation to her, and had never seen

it. D ean Epps provided a copy of Petitioner Ós presentation to

Director Cavazos .

13. Director Cavazos had seen Petitioner enter the FAMU - COL

school faculty function and noticed he had the FAMU tablecloth

under his arm. When Director Cavazos asked Petitioner ab out his

use of the tablecloth, Petitioner responded that he was

recruiting students to the Clinics program.

14. Shortly after the FAMU - COL school faculty function,

Dean Epps provided Petitioner with a memo regarding his

responsibilities to the Clinics. Dean EppsÓ management style was

different than the prior FAMU - COL administrat or . Her memo was

intended to facilitate Petitioner and Director Cavazos working

together, and to instill a Ðchain of commandÑ structure. Dean

EppsÓ memo directed Petitioner to m eet with his supervisor,

Director Cavazos , to discuss his responsibilities, and to follow

Director Cavazos Ó directives on the ClinicsÓ operations and

programs. Dean Epps appreciated Petitioner Ós work in putting

together the report and power - point presenta tion, but found the

presentation to be inappropriate and unprofessional in light of

Petitioner Ós failure to work with Director Cavazos. Dean Epps

expressed her preference that Petitioner needed to talk with

Director Cavazos prior to bringing any other sug gestions to her

attention.

15. Petitioner acknowledged the chain of command structure

in a response memo to Dean Epps on January 14, 2016. However,

Petitioner qualified his response during the hearing by saying he

was aware of what the chain of command meant in the military, but

not in the legal profession. Petitioner Ós testimony is

unpersuasive.

16. Early in the FAMU - COL spring 2016 term, Director

Cavazos became aware that Petitioner had unilaterally changed the

class meeting time of the Homelessness and Legal Advocacy Clinic

(HLAC) from an evening class to a late morning - noon class time.

For the entire time that Petitioner had been the HLAC instructor

(2009 - 2016), the HLAC was designated as an evening clinic to

accommodate evening students. This de signation is a requirement

of the American Bar Association (ABA), in that evening students

must have the same opportunity as day students for experiential

learning. In previous terms, the HLAC met on Monday evenings

from 6:00 p.m. to 7:40 p.m. On Tuesday through Thursday

evenings, the students and Petitioner went to local shelters or

other organizations to conduct intake interviews and speak with

the HLACÓs clients.

17. Petitioner explained that it was his ÐintentÑ to

accommodate one student who wanted to take the HLAC, when he

changed the class time. Petitioner admitted that changing the

class time was the first time he had done so, because Ðevery

other time it was the same time as the schedule stated.Ñ

Petitioner testified that there were no evening students in the

HLAC that semester and the three full - time students would have to

vote unanimously to change the class meeting time. Petitioner

contradicted his own testimony when he testified he changed the

class time and then testified the students had to vote

unanimously to change the class time. Petitioner Ós testimony is

not credible.

18. A meeting was held with Petitioner , Director Cavazos ,

and Associate Dean Bullard. No testimony was provided that the

evening intake interviews, i.e. , the time in w hich to speak with

HLACÓs clients , was altered, nor was it clear exactly when the

HLAC actually met during the spring 2016 semester. Because many

of the HLACÓs clients were homeless, speaking to them during the

evening was feasible, but difficult. Speaki ng to the HLACÓs

clients during the day was nearly impossible, as no one ever knew

where the clients could be found.

19. Director Cavazos issued a Notice and Warning of

Unprofessional Conduct to Petitioner on January 15, 2016.

Director Cavazos took this action because Petitioner had lied to

her, the power - point h e presented to Dean Epps was not accurate,

and the report suggested that he had the authority and

information to present such information. Director Cavazos also

expressed concern with Petitioner Ós unilaterally changing the

HLAC schedule and the possible impact that could hav e on the

schoolÓs ABA status.

20. In February 2016, then Provost David 7/ issued a memo to

Dean Epps regarding the U niversityÓs Ð2016 - 2017 Reduction Plan.Ñ

The memo dealt w ith the financial situation of the FAMU - COL, and

what steps were to be taken to reduce the law schoolÓs

expenditures. Based on enrollment, Dean Epps determined that

only two summer Clinics would be offered.

21. Once the FAMU - COL summer Clinics course off erings were

published, Petitioner noticed that the HLAC was not offered. A

meeting was held with Petitioner , Director Cavazos, Associate

Dean Bullard, and Dean Epps. At that time Petitioner was told of

the budget issues and that only two C linics were goi ng to be

offered that summer , neither of which would be the HLAC .

22. Several weeks later, Director Cavazos requested that a

third clinic be added to the summer 2016 course offering, a

Guardian Ad Litem Clinic (GALC). Director Cavazos provided

compelling reasons to continue the GALC through the summer, and

the GALC was added. The adjunct professor, who was already

handling the GALC and was immersed in the on - going six cases,

remained to teach the course and continue working those cases to

completion.

23. In preparation for the summer term without the HLAC,

the current cases were to be handed over to the Fellows.

Petitioner was aware of this plan.

24. Despite knowing that the Fellows were to get HLACÓs

cases, on April 8, 2016, Petitioner e - mailed Direct or Cavazos a

substitution of counsel draft, inserting her name as the

attorney of record in all the HLACÓs pending cases.

25. On April 9, 2016, Director Cavazos responded to

Petitioner that the semester had not ended and there w ere to be

additional dis cussions with the Fellows about the cases that

were to be transferred to them. Director Cavazos contacted

Petitioner and attempted to obtain case status reports on all of

the transferring cases by April 13, 2016. Director Cavazos

planned to meet with all the Fellows and university staff

involved in the transfer.

26. Petitioner advised Director Cavazos that he had

provided information on all of the cases through attachments to

the e - mail, and that each client had a memo in their file in

CLIO. 8/

27. Dir ector Cavazos responded that the information

Petitioner provided was not helpful for determining the current

status of each case, and that she needed an overview of each of

the 17 cases. Director Cavazos provided a time for a meeting

with the Fellows to o ccur two days later , on April 13, 2016.

28. On April 13, 2016 , a meeting was held with Petitioner ,

the Fellows, Professor Caussade - Garcia, and Director Cavazos.

This meeting was to discuss the multiple HLAC cases that needed

to be transferred to the Fell ows for the summer term. The

intention was for Petitioner to return for the fall semester and

resume any remaining cases.

29. During this meeting or shortly thereafter , Director

Cavazos learned the HLACÓs client files that were to be

transferred to the F ellows were not complete per the ClinicsÓ

policy and procedure for file maintenance. Some HLACÓs client

file documentation was in CLIO; however , not all of the HLACÓs

client files had the requisite paper or hard copies. Petitioner

expressed that he did n ot have paper files, but had notes about

each case. Additionally, Director Cavazos first learned that

Petitioner had an auto negligence case within the HLAC. These

types of cases are outside the HLAC (and the Clinics) practice

parameters. 9/

30. The lo n g - standing FAMU - COL clinical program policy is

to educate law students on the appropriate method to maintain

client files, both in hard copy and electronically. The

ClinicsÓ policy and procedure manual (which encompasses the

HLAC) details that each clien t file is to be maintained in a

six Î section file folder that makes it easy for the next student,

instructor, or Fellow to know the case status. Th e ClinicsÓ

client files are not to be removed from the C linic, unless the

matter is scheduled for a mediation , deposition or court

appearance.

31. At the meeting or shortly thereafter, Petitioner

acknowledged that he would update the HLACÓs client files.

32. On April 18, 2016, Dean Epps advised Petitioner that

she was not recommending Petitioner be given a te rminal

contract 10/ for the 2017 - 2018 academic year. Dean Epps advised

Provost David, Professor Bullock, and Director Cavazos of her

decision. Dean Epps had a priority on experiential learning,

and although there was a need to reduce expenses for the law

school, she believed the FAMU - COL needed more not less full - time

clinical instructors. She directed Petitioner to take the

necessary steps to ensure that the HLACÓs cases were covered for

the summer by the Fellows. Dean Epps reiterated that her

leadershi p style was d ifferent than prior administrators , and

requested that Petitioner first consult with Director Cavazos

before seeking others input.

33. On April 27, 2016, another meeting was held with

Petitioner , Director Cavazos , and the Fellows, and there w ere

still incomplete HLAC client files.

34. Ms. Boatwright, one Fellow who was taking on cases

from Petitioner for the 2016 summer, provided Petitioner and

Director Cavazos a draft notice of appearance (NOA) for the

multiple cases that were to be transf erred to the Fellows.

Petitioner responded that he thought the NOA Ðshould work.Ñ

35. Further, Ms. Boatwright did a comprehensive review of

the HLACÓs client files that were transferred to the Fellows.

She determined that there were multiple HLAC client case files

that were incomplete and had not been updated to a current

status. She also discovered that court hearings had recently

been set in a few cases, but that no work had been done on the

files in months. Other HLAC client files were missing manda tory

disclosure items. In yet another case, nine months had elapsed

since the clientÓs documents were ready to be filed, but were

not.

36. Ms. Boatwright compared the HLACÓs client files to the

Orange County Clerk of Court dockets and was able to determ ine

what was missing from the HLAC files. She reconstructed the

HLACÓs client files and determined the status of those cases.

37. On May 5, 2016, Director Cavazos issued a written

reprimand to Petitioner . This reprimand reiterated the January

issue s reg arding Petitioner Ós unilateral change to the

designated HLAC class meeting time, and Petitioner Ós meeting

with Dean Epps without sharing the power - point presentation and

ÐAnnual ReportÑ with Director Cavazos prior to that meeting.

The reprimand included t hat Director Cavazos had also determined

that Petitioner had ceased going to the HLAC night intake

locations. Director Cavazos re - established the intake schedules

for the HLAC.

38. The reprimand included that in preparing for

Petitioner Ós summer sabbat ical, Director Cavazos had met with

Petitioner and discovered that he was not maintaining HLAC

client files according to the ClinicsÓ policy and procedures.

Director Cavazos included a list of the cases that were

incomplete for the transfer to the Fellows . The reprimand also

suggested a possible violation of university regulations

regarding Petitioner Ós opening of his own law practice, of which

Director Cavazos was unaware.

39. Director Cavazos requested that an exit meeting needed

to be held to discuss the transfer of the HLACÓs files to the

Fellows prior to Petitioner Ós last day. Late on May 6, 2016,

Petitioner delivered the transferring files to a FAMU - COL

assistant. The FellowÓs received the files on Monday, May 9 ,

2016 . Petitioner Ós nine - month con tract with the FAMU - COL ended

on May 6, 2016.

40. Petitioner informed Director Cavazos of one HLAC

client who requested a copy of her file. Ms. Boatwright

discovered that the client had made the request for her file a

month earlier, and Petitioner had fa iled to respond to the

request.

41. Petitioner admitted during the hearing that on May 10,

2016, four days after his annual contract ended, he sent the

following letter, using outdated FAMU stationary, to 17 HLAC

clients:

Dear [Name obliterated]

This lett er is being sent to advise you that,

as of next week, I will be setting your case

for hearing on a Motion to Withdraw. So, you

will soon be without legal representation.

My contract with the FAMU Clinics Department

has expired and will not be renewed unt il

August 2016. In the meantime, the Clinical

Director, Ann Marie Cavazos, was supposed to

arrange for you to have legal representation.

Unfortunately, no notices have been filed

with the clerk of court on your behalf.

If you have any questions, comment s or

concerns about your lack of legal

representation on such short notice, please

contact:

Ann Marie Cavazos, Clinical Director

Phone: (407)254 - 4000

Email: [e-mail]

If you find that she is unresponsive and

difficult to get a hold of, you may want to

contact her direct supervisors:

Dean Bullock

Phone: (407) 254 - 3257

Email: [e-mail]

Dean Epps

Phone: (407) 254 - 3204

Email: [e-mail]

This concludes the extent of our

representation of you regarding this matter.

It is the policy of the clinic to keep all

files on record for a period of six (6) years

before destroying them.

Sincerely,

/s/ KaÓJuel J. Washington

KaÓJuel J. Washington

Attorney & Counselor At Law

42. On May 17, 2016, Dean Epps contacted Petitioner via

e - mail. Dean Epps had read Director CavazosÓ written reprimand,

and requested that Petitioner complete an out side employment form

and return it as soon as possible. Dean Epps included a copy of

the applicable University Regulation and a form for Petitioner Ós

use.

43. Petitioner responded within several hours to Dean Epps

request. Petitioner provided that he Ðf iled [sic] out, submitted

[the form] and [it was] approved around May of 2015.Ñ

44. On May 19, 2016, Dean Epps responded to Petitioner and

again asked for an updated outside employment form, as the two

forms 11/ she found were not current. One form relate d to

Petitioner Ós run for public office in the fall of 2015, and the

second for consulting work he would be performing for the

Washington Trial Group PLLC (WTG). Dean Epps requested a

description of the nature of the work to determine if there was

any ove rlap between the Clinic sÓ clients and clients of WTG.

Dean Epps made a second request that the outside employment form

be returned as soon as possible. Petitioner did not respond to

Dean EppsÓ second request nor did he file a current outside

employment f orm.

45. Petitioner maintained that he had the authority from

Dean Pernell to engage in the consulting work. Petitioner

readily admitted that his outside employment form was for the

WTG, his Ðlaw firm.Ñ Petitioner intended to open his own small

private solo practice, yet he stated the nature of the employment

was Ðconsulting , Ñ and he failed to provide an employment

ÐBeginning DateÑ or an ÐEnding Date.Ñ 12/

46. Director Cavazos is a member of her husbandÓs LLC ,

entitled Voice by John (Voices). Director Cavazos does not

receive any remuneration from her position in the Voices

corporation, and there is no potential for a conflict of interest

with the Clinics. 13/ PetitionerÓs Exhibit 32 was admitted over

objection. This exhibit is a hearsay document upon which no

direct testimony from Professor Bullard was taken. As such, no

finding of fact will be found based upon PetitionerÓs Exhibit 32.

47. On May 24, 2016, Director Cavazos issued another

written reprimand regarding Petitioner . This reprimand

encomp assed: the April 8 , 2016, e - mail from Petitioner which

included the draft notice of substitution of counsel to the

Director; the discovery that Petitioner had an auto negligence

case, which is outside the HLAC Ós practice area; Petitioner Ós

failure to ensu re the transferred cases were complete and up - to -

date; PetitionerÓs failure to provide a client with a copy of

their case file when requested; the use of outdated letterhead

for letters to HLAC clients; and the sending of a

ÐdisengagementÑ letter when the clients were still being

represented by the HLAC .

48. On May 25, 2016, Dean Epps requested Petitioner Ós

contract with the FAMU - COL be terminated. Dean Epps included

the written documentation to support her request.

49. Prior to issuing the dismissal l etter, Provost David

requested information regarding the appropriate university

procedures for such action, reviewed the documentation provided

to her regarding Petitioner Ós circumstances, and reviewed

elements of Petitioner Ós personnel file. Following he r

thoughtful consideration, Provost David dismissed Petitioner by

letter dated June 15, 2016. The letter provided that the

dismissal was based on his Ðmisconduct in the workplace as well

as incompetence in the exercise of [his] duties as an employee

of FA MU.Ñ The letter also included memoranda in support of the

decision. Petitioner was 40 years old when he was terminated.

50. Following his receipt of the employment termination

letter, Petitioner believed he had the right to file a FAMU

grievance challen ging his dismissal. The grievance alleged

Petitioner was terminated for: blowing the whistle on some

negligent FAMU - COL practices; documentation for his termination

started after Petitioner met with Dean Epps in January 2016;

discrimination or harassment by Director Cavazos; and his

outside employment. In the grievance, Petitioner did not allege

any discrimination or harassment based on religion, age, color,

or race. Petitioner sought r emov al of the reprimands from his

personnel file, reinstatement to h is clinical instructor

position, and receipt of back pay and other benefits; and that

Director Cavazos, Dean Epps and other FAMU - COL employees not

retaliate against him.

51. Petitioner was afforded the Step 1 grievance process

by FAMU. In the Step 1 pro cess, FAMU Associate Provost Jackson

(Mr. Jackson) examined the facts as he could ascertain them.

This included reviewing the written records, talking to people

involved in the process, and specifically talking with

Petitioner . During the Step 1 process, Petitioner alleged he

was terminated for blowing the whistle on Director Cavazos and

there was collusion between Director Cavazos and Dean Epps to

get rid of Petitioner from the FAMU - COL. In September 2016,

Petitioner submitted a 15 - page response to a re quest by

Mr. Jackson. Petitioner Ós response did not mention

discrimination based on race, color, sex, religion or age as

part of his Step 1 grievance.

52. In order to understand the sequence of events,

Mr. Jackson compiled the information in date orde r to scrutinize

the actions taken. Mr. Jackson determined that Petitioner

committed misconduct in the workplace and incompetence in the

performance of his duties as a FAMU - COL employee when Petitioner

failed to follow a variety of the C linics Ó policies, o pened his

own private law firm without proper approval, and sent letters

with misinformation to 17 HLAC clients.

53. Mr. Jackson pointed out that if Petitioner Ós contract

with the FAMU - COL had expired, Petitioner Ðshould not have been

communicating at al l with the clients.Ñ Further, the letters

contained misinformation that could have harmed the reputation

of the FAMU - COL.

54. After reviewing Petitioner Ós power - point presentation,

Mr. Jackson found that the presentation did not Ðindicate to me

at all that there was any effort to blow the whistle on the

supervisor of the law clinic.Ñ Mr. Jackson went on to testify

that Petitioner :

[A ]rticulated the points very well that he

wanted to share with the dean of the school

and that he is erudite enough to kno w that if

he was blowing the whistle that he would put

that in writing just like he did the other

information in that report . . . the other

stuff was very explicit in the report that he

presented. And so if something is as

critical as blowing the whistle on some

individual, I felt that if that was something

that he was trying to do, that it would be

explicit and not implicit.

55. Mr. Jackson found that Petitioner Ós grievance was

unsupported. Mr. Jackson further found there were no violations

of the FA MU regulations in terminating Petitioner Ós employment.

Mr. Jackson determined that the remedy sought by Petitioner

should be denied. Lastly, Mr. Jackson found there was just cause

for Petitioner Ós termination.

56. Petitioner sought and received the FAM U Step 2

grievance review. Step 2 was conducted by Dean Hughes, the

current dean of the School of Allied Health Sciences at FAMU.

Petitioner again sought the removal of the reprimands from his

personnel file, reinstatement to his instructor position, his

back pay and other benefits , and the assuranc e that Director

Cavazos, Dean Epps and other FAMU - COL employees did not retaliate

against him.

57. The first thing Dean Hughes did was to hear from

Petitioner about what he was grieving. Petitioner , with hi s

attorney present, alleged he was terminated without a terminal

contract, he was being retaliated against for exposing issues

related to a grant from Disney, and he was being discriminated

a gainst by the FAMU - COL officials. Petitioner did not allege

that he was being discriminated based on his race, color, sex,

religion or age. Following the conversation with Petitioner and

his counsel, Dean Hughes reviewed the materials provided by

Petitioner and spoke with those persons whom she thought would

have info rmation about the matter.

58. Dean Hughes determined that Petitioner was not a

tenured professor, and was not entitled to a terminal contract.

Non - tenured professors may be terminated for cause. Dean Hughes

determined there was cause for Petitioner to be terminated based

on Petitioner Ós performance.

59. Dean Hughes looked into the allegation that the FAMU -

COL was misusing funds from a Disney grant/endowment. 14/ Other

than making the allegation of misuse of the funds, Petitioner did

not provide any doc umentation demonstrating that the Disney money

was being misused. Further, Petitioner Ós claim of whistle blower

status was unsupported. Dean Hughes confirmed that the Disney

funds had not been misused or, in fact, spent.

60. Petitioner alleged that he w as discriminated against

when he did not receive a summer contract, when he had always

worked through the summer term. Dean Hughes determined that due

to budget reasons, the HLAC that Petitioner taught was not being

offered, and the cases that he was invo lved with w ould be

assigned to the Fellows.

61. Dean Hughes found that Petitioner was terminated with

just cause. She denied the grievance and remedy sought.

62. Petitioner filed his FCHR employment complaint of

discrimination on March 6, 2017. Ther ein he checked the

following boxes as the cause of his discrimination complaint:

race, color, sex, religion and age. However, the Petition for

Relief, as previously mentioned did not include religion.

63. Other instructors, their sex, and their po ssible

courses at the FAMU - COL C linics included: Eunice Caussade Î

Garcia, a female whom Petitioner guessed was Ðconsidered

HispanicÑ in the GALC or mediation clinic; Nickola Booth - Perry

(sex not offered) in the GALC ; Mrs. Naguv, a female whom

Petitioner thought was Asian, but was not positive about where

she was from; Robert Minarcin, a male in the criminal defense

clinic; Cynthia Ramkellawan, a female who is Indian (Ðas in East

India, not native AmericanÑ) in the GALC ; and Mrs. Moore in the

criminal defense clin ic. For clarity Ms. Caussade - Garcia,

Mr. Minarcin, and Ms. Ramkellawan taught the C linic courses

during the 2016 summer term. Ms. Ramkellawan was teaching the

GALC during the spring 2016 term, and continued to teach it in

the summer term.

64. No eviden ce was presented of any racial statements or

of any racial overtones made directly or indirectly to

Petitioner . There was no circumstantial evidence presented to

support even an inference that Respondent s intentionally

discriminated against Petitioner bas ed on his race. The

undersigned observed Petitioner to be an African - American male.

65. Other than Petitioner Ós admission of his age, there was

no evidence presented regarding the ages of the other clinical

instructors or professors at the FAMU - COL, nor of the individual

who taught the 2016 third summer clinic. There was no

circumstantial evidence presented to support even an inference

that Respondent s intentionally discriminated against Petitioner

based on his age.

66. The claim of religious discrimina tion was not in the

Petition for Relief. However, to stave off a claim that it was

unintentionally left off, the following is provided. Other than

Petitioner stating that he was admonished for not attending an

event on Easter Sunday that conflicted with his Christian faith,

there was no evidence presented regarding what the ÐeventÑ was,

who sponsored it or anything that provided a basis that religious

discrimination occurred. The reprimands and the termination

letter fail to state religion as a basis for the actions taken.

There was no circumstantial evidence presented to support even an

inference that Respondent s intentionally discriminated against

Petitioner based on his religion.

67. Provost David, Dean Epps, and Director Cavazos all

credibly testifi ed that Petitioner Ós race , color, age, sex, or

religion had nothing to do with the discipline imposed.

Mr. Jackson and Dean Hughes credibly testified that during the

Step 1 and Step 2 proceedings, Petitioner never alleged that he

was discriminated agains t on the basis of his race, color, age,

sex or religion.

68. Respondent s have a diverse staff and an anti -

discrimination, no - harassment policy that is enforced as to all

its employees.

69. The undersigned finds as a matter of ultimate fact that

Responden t s did not discriminate against Petitioner based on his

race , color, sex, or age (or religion) that might have applied to

Petitioner but was not proven at hearing.

70. The undersigned finds as a matter of ultimate fact that

the FAMU - BOL ha s just cause to terminate Petitioner Ó s employment

based on the facts above.

CONCLUSIONS OF LAW

71. DOAH has jurisdiction of the subject matter of and the

parties to this proceeding. §§ 120.569, 120.57(1), and

760.11(6), Fla. Stat. (2017 ) ; and pursuant to FAMU Regulation

10.206(9).

Discrimination Allegation

72. Petitioner filed his FCHR complaint alleging FAMU - COL

discriminated against him on the basis of his race, color, sex,

age and religion.

73. The Florida Civil Rights Act of 1992 (the FCRA),

prohibits discriminatio n in the workplace. Among other things,

the FCRA makes it unlawful for an employer:

To limit, segregate, or classify employees or

applicants for employment in any way which

would deprive or tend to deprive any

individual of employment opportunities, or

ad versely affect any individualÓs status as

an employee, because of such individualÓs

race, color, religion, sex, pregnancy,

national origin, age, handicap, or marital

status.

§ 760.10(1)(b), Fla. Stat.

74. FloridaÓs chapter 760 , Florida Statutes (2016) , i s

patterned after Title VII of the Civil Rights Act of 1964, as

amended. Consequently, Florida courts look to federal case law

when interpreting chapter 760. Valenzula v. Globeground N. Am.,

LLC , 18 So. 3d 17 (Fla. 3rd DCA 2009).

75. Petitioner claims h e was discriminated against by FAMU -

COL because of his race, color, sex, religion, or age.

Petitioner alleges that Director Cavazos in collusion with Dean

Epps denied him a summer teaching position.

76. Section 760.11(7) permits a party who receives a no

cause determination to request a formal administrative hearing

before the DOAH . ÐIf the administrative law judge finds that a

violation of the Florida Civil Rights Act of 1992 has occurred,

he or she shall issue an appropriate recommended order to the

commission prohibiting the practice and recommended affirmative

relief from the effects of the practice, including back pay.Ñ

Id.

77. Petitioner has the burden of proving by a preponderance

of the evidence that Respondent s discriminated against him. Se e

Fla. DepÓt of Transp. v . J.W.C. Co. , 396 So. 2d 778 (Fla. 1st DCA

1981).

78. Employees may prove discrimination by direct,

statistical, or circumstantial evidence. Valenzula v.

Globeground N. Am., LLC , 18 So. 3d at 22.

79. Direct evidence is evidenc e that, Ðif believed, proves

[the] existence of [a] fact in issue without inference or

presumption.Ñ Burrell v. Bd. of Tr. o f Ga. Military College , 125

F.3d 1390, 1393 (11th Cir. 1997). Direct evidence consists of

Ðonly the most blatant remarks, whose in tent could be nothing

other than to discriminateÑ on the basis of an impermissible

factor. Carter v. City of Miami , 870 F.2d 578, 582 (11th Cir.

1989).

80. The record in this case did not establish unlawful

race, color, sex, or age discrimination by dir ect evidence.

81. To prove unlawful discrimination by circumstantial

evidence, a party must establish a prima facie case of

discrimination by a preponderance of the evidence. If successful,

this creates a presumption of discrimination. Then the burden

s hifts to the employer to offer a legitimate, non - discriminatory

reason for the adverse employment action. If the employer meets

that burden, the presumption disappears and the employee must

prove that the legitimate reasons were a pretext. Valenzuela v.

GlobeGround N. Am., LLC , 18 So. 3d at 25 . Facts that are

sufficient to establish a prima facie case must be adequate to

permit an inference of discrimination. Id.

82. Accordingly, Petitioner must prove discrimination by

indirect or circumstantial evide nce under the framework

established in McDonnell Douglas Corp. v. Green , 411 U.S. 792, 802

(1973). Petitioner must first establish a prima facie case by

showing: (1) he is a member of a protected class; (2) he was

qualified for the position held; (3) he was subjected to an

adverse employment action; and (4) other similarly - situated

employees, who are not members of the protected group, were

treated more favorably than Petitioner . ÐWhen comparing similarly

situated individuals to raise an inference of dis criminatory

motivation, these individuals must be similarly situated in all

relevant respects.Ñ Jackson v. BellSouth Telecomm. , 372 F.3d

1250, 1273 (l1th Cir. 2004).

83. In order to establish a prima facie case of disparate

treatment based on race, col or, sex, or age, Petitioner must show

that Respondent s treated similarly - situated employees differently

or less severely. Valdes v. Miami - Dade Coll. , 463 Fed. Appx. 843,

845 (11th Cir. 2012); Camara v. Brinker IntÓl , 161 Fed. Appx. 893

(11th Cir. 2006).

84. Petitioner offered proof sufficient to establish his

race (African - American), color (black), sex (male) and age (40 at

the time of termination), but failed to prove discrimination , or

that similarly - situated employees were treated differently than

he .

85. Finally, Petitioner o ffered no proof that Respondent s

proffered reasons for not hiring him for the summer was a pretext

for unlawful discrimination. In order to prove that an

employerÓs asserted reason is merely a pretext:

A plaintiff is not allowe d to recast an

employerÓs proffered nondiscriminatory

reasons or substitute [his] business judgment

for that of the employer. Provided that the

proffered reason is one that might motivate a

reasonable employer, an employee must meet

that reason head on an d rebut it, and the

employee cannot succeed by simply quarrelling

with the wisdom of that reason .

Chapman v. AI Transport , 229 F.3d 1012, 1030 (11th Cir. 2000).

86. The FAMU - COL proved legitimate, nondiscriminatory

reasons for not hiring Petitioner for the 2016 summer clinic.

Petitioner failed to show that the budget issue and the

continuity of clinical supervision and instruction for the GALC

were a mere pretext for unlawful discrimination. Therefore, it

is conclud ed, based upon the evidence, the FAMU - COL did not

violate the Florida Civil Rights Act of 1992, and is not liable

to Petitioner for employment discrimination.

Termination Allegation

87. The Florida Board of Governors of the State University

System (BOG) is a constitutionally created entity, which

establishes the Ðpowers and dutiesÑ of all state university

boards of trustees. See Art. IX, Fla. Const. FAMU - BOG , a

constitutional entity, administers FAMU. See Art. IX , § 7, Fla.

Const.

88. BOG R egulation 1.001, provides that FAMU - BOG is vested

with the authority to establish a personnel program, which is

found at c hapter 10, part I , of the FAMU Regulations.

89. FAMU Regulation 10.122 provides , in pertinent part:

(2) The responsibility of the University

employee is the full and competent

pe rformance of all duties pertinent to

his/her employment with the University.

Outside employment/activities or financial

interests which interferes with the

employeeÓs obligations to the University is

prohibited. Employees of the University

should avoid ac tual or apparent conflict of

interest between their University obligations

and their outside employment/activities or

financial interests.

(3) Any employee who proposes to engage in

any outside employment must report in writing

to the President or Presid entÓs designee via

the employeeÓs supervisor as soon as

practicable in advance of such employment, by

completing the Florida A & M University

report of Outside Employment form (FAM UPO -

402 EFF. 7/91, as now of hereafter amended),

which is incorporated here in by reference.

The President or PresidentÓs designee shall

determine whether the proposed outside

employment appears to constitute a conflict

of interest or other interference with the

employeeÓs duties. If it is determined that

the proposed outside em ployment appears to

constitute such a conflict of interest or

interference, the President or PresidentÓs

designee shall notify the employee that

he/she may not engage in the proposed

activity while employed as an employee of the

University.

* * *

(5) All University employees are bound to

observe, in all official acts, the highest

standards of ethics consistent with the code

of ethics of the State of Florida,

Chapter 112, Part III, Florida Statutes, the

advisory opinions rendered with respect

the reto, and the rules of the University.

* * *

(7) No employee shall have an employment or

contractual relationship or engage in a

business or personal activity that will

create a continuing or frequently recurring

conflict between that employeeÓ s private

interest and the performance of the

employeeÓs official duties.

90. FAMU Regulation 10.205 provides , in pertinent part:

(3) Nontenured or Nonpermanent Faculty

whose appointments expire after receiving

notice of nonrenewal or nonreappointment o r

whose appointment expires without the

requirement of a written notice of

nonreappointment may be separated without

further notice.

* * *

(5) The President or PresidentÓs designee

may discipline a Faculty for just cause in

accordance with the p rovisions set forth

herein. Counseling of any nature or degree

shall not be considered disciplinary action.

(a) Just cause shall be defined as:

1. Incompetence; or

2. Misconduct.

* * *

(f) Dismissal Î The employee may be

dismissed during t he term of the employment

contract for just cause, regardless of tenure

status where it appears to the President or

PresidentÓs designee that an employeeÓs

actions adversely affect the functioning of

the University or jeopardize the safety or

welfare of th e employee, other employees or

students. The employee shall be given

written notice of the dismissal by the

President or PresidentÓs designee specifying

the reason(s) therefore. The dismissal shall

take effect at the time determined by the

President or P residentÓs designee and as

written in the notice of dismissal.

* * *

(i) Within 30 days following the receipt of

notice of disciplinary action, the employee

may file a complaint in accordance with

Regulation 10.20

91. FAMU Regulation 10.206 pr ovides , in pertinent part:

( 1) Purpose Î The purpose of this regulation

is to promote a prompt and efficient

procedure for the investigation and

resolution of complaints filed by Faculty or

Administrative and Professional employees of

the University who h ave tenure or permanent

status or who may file a complaint pursuant

to Regulation 10.206. The provisions of

this regulation are not applicable to

University Support Personnel System

employees who may file a complaint pursuant

to Regulation 10.303.

(2) A ll problems should be resolved,

whenever possible, before the filing of a

complaint and open communication is

encouraged so that resort to the formal

complaint procedure will not normally be

necessary. Therefore, informal resolution

of complaints is encou raged.

(3) Burden of Proof Î The burden of proof

shall be on the University in disciplinary

complaints. In all other complaints, except

disciplinary complaints, the burden of proof

shall be on the complainant.

* * *

(7) Step One Î All compla ints shall be

filed with the person designated by the

President or PresidentÓs designee as Step

One Representative for the unit of the

University, in which the complainant

performs the complainantÓs duties, within

30 days following the act or omission giv ing

rise thereto, or the date on which the

complainant knew or reasonably should have

known of such act or omission if that date

is later. The complainant may, in the

written complaint which is filed, request

the postponement of any action in processing

t he complaint formally for a period of up to

30 days, during which period efforts to

resolve the complaint informally shall be

made. Upon the complainantÓs written

request, an additional 30 - day extension

should be liberally granted unless to do so

would im pede resolution of the complaint.

Upon the request, the Step One

representative shall, during such

postponement period(s) arrange an informal

conference between the appropriate

administrator and complainant. The

complainant may at any time terminate a

po stponement period by giving written notice

to the Step One Representative that the

complainant wishes to proceed with the Step

One meeting provided for below. If the

initial postponement period, or any

extension thereof, expires without such

written notic e, the complaint shall be

deemed informally resolved to the

complainantÓs satisfaction and need not be

processed further. The Step One

Representative shall conduct a meeting no

sooner than seven and no later than 15 days

following (1) receipt of the compl aint if no

postponement is requested, or (2) receipt of

written notice that the complainant wishes

to proceed with the Step One meeting. In

advance of the Step One meeting, the

complainant shall have the right upon

request to a copy of any identifiable

do cuments relevant to the complaint. At the

Step One meeting, the complainant shall have

the right to present any evidence in support

of the complaint. The Step One

Representative shall issue a written

decision, stating the reasons therefore,

within 30 day s following the conclusion of

the meeting. In the event the decision at

Step One refers to documents not requested

or presented by the complainant, copies of

such documents shall be attached to the

decision.

(8) Step Two Î If the complaint is not

satisf actorily resolved at Step One, the

complainant may file a written request for

review with the appropriate Vice President

or representative within 30 days following

receipt of the Step One decision. The

appropriate Vice President or representative

and the complainant shall schedule a meeting

for the purpose of reviewing the matter no

sooner than seven and no later than 15 days

following receipt of the request for review.

The meeting shall afford the complainant or

counsel an opportunity to present written

and/or oral evidence opposing the

UniversityÓs act or omission including a

written statement challenging the grounds

upon which such act or omission is

justified. If the issue involves a

substantial interest of the complainant, the

complainant may use the provisions of Step

Three below. If the issue does not involve

a substantial interest of the complainant,

the Step Two decision shall be final and

binding. The Step Two decision shall be in

writing and be issued within 90 days of the

meeting. The record of the Step Two meeting

shall only consist of:

(a) The notice of the UniversityÓs act or

omission, and the grounds therefor:

(b) Evidence received or considered;

(c) All written statements submitted by

parties to the complaint and by any other

perso ns;

(d) A complete record of any ex parte

communication made relative to the

complaint, along wit h the disposition

thereof; and i f after the Step Two decision

has been issued, and the complaint is not

related to a substantial int erest, no

further review of the complaint is required.

However, if the complaint is related to a

substantial interest and the complaint has

not been resolved to the satisfaction of the

complainant, the complainant may, within

30 days of the receipt of the Step Two

decision, file a request for a hearing

pursuant to Step Three below, which is

written to comply with the requirements of

Section 120.57(1), F.S.

(9) Step Three: Formal Procedure Î Either

the President of the University or

PresidentÓs designee, or a hearing officer

as signed by the Division of Administrative

Hearings (DOAH) shall conduct the hearing at

this step. If the University elects to use

a DOAH hearing officer, it shall notify the

Division within 10 days of the receipt of

the request for the hearing.

92. The cr edible evidence established that Petitioner Ós

employment was terminated for misconduct and incompetence in the

performance of his duties as a FAMU - COL clinical instructor.

Petitioner failed to prove that any other similarly - situated

person at FAMU - COL was treated more f avorably than he.

Respondent s Ó witnesses testified consistently and credibly that

they uniformly enforce an anti - discriminatory policy to all

persons, regardless of race, color, age, sex or any other factor.

RECOMMENDATION S

Based on the fo regoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that :

T he Florida Commission on Human Relations enter a final

order dismissing Petitioner Ós Complaint of Discrimination and

Petition for Relief consistent with the terms o f this Recommended

Order; and the Florida A & M University Board of Trustees uphold

that PetitionerÓs termination was justified.

DONE AND ENTERED this 30 th day of May, 2018, in Tallahassee,

Leon County, Florida.

S

LYNNE A. QUIMBY - PENNOCK

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 H earings

this 30 th day of May , 2018 .

ENDNOTE S

1/ Petitioner Ós March 6, 2017 , complaint filed with Florida

Commission on Human Relations also included an allegation of

discrimination based upon religion. However, the Petition for

Relief filed on Septemb er 1, 2017 , with the FCHR fails to include

religion as a basis for his discrimination claim.

2 / As the facts will show, Petitioner was on a nine - month

contract, and his responsibilities to the FAMU - COL ended on May 6,

2016. In June 2016, Petitioner was terminated from his FAMU - COL

employment, and he grieved the process via the FAMU grievance

procedure. Petitioner Ós Step 1 grievance process ended with the

termination being upheld. Petitioner Ós Step 2 grievances process

also ended with the termination be ing upheld. Petitioner then

engaged the Step 3 grievance process, and the matter was referred

to DOAH.

3 / Petitioner Ós last contract with the FAMU - COL ended May 6,

2016.

4 / At the time this matter was referred to DOAH, Mr. Robinson was

the interim pre sident of FAMU. Mr. Robinson became president of

FAMU in November 2017.

5 / Professor Epps served as d ean of the FAMU - COL for

approximately 18 months and is now a professor of law. For

continuity she will be referred to as d ean throughout this Order.

6 / The Fellows refers to a Fellowship Program of the Virgil

Hawkins Florida Chapter of the National Bar Association. This

program, in partnership with the FAMU - COL, provides pro bono legal

services to indigent members in the central Florida area. As part

of their responsibilities, the Fellows are to Ðupload all filings,

drafts, documents and e - mails to CLIO . . . [and] print the

pleadings and create a paper file to match the electronic file.

The paper version of the client file will be ke pt in the [FAMU -

COL] office.Ñ

7 / Although Professor David is no longer Provost, for ease of

continuity, she will referred to as Provost David.

8 / ÐCLIOÑ is a cloud based electronic case management system.

9 / The FAMU - COL does not have insurance coverage for tort c ases,

nor does it have a trust fund to facilitate those types of cases.

10 / A terminal contract is given to a tenure - track professor who

will not be retained at the end of the terminal contract period.

Petitioner was not a tenure - track professor .

1 1 / The two forms included the following:

a. Petitioner listed his University Employment schedule with

check marks on Monday, Tuesday, Wednesday, Thursday, and Friday.

He then completed the form by indicating: Proposed Employer/and

address: left blank; be ginning and ending date of employment:

from September 2015 through November 2015; the work schedule

included Saturday and Sunday for approximately ten hours; and the

nature of proposed employment: running for City Council.

Petitioner checked the box whi ch indicated no University

facilities, equipment, services or personnel would be used.

Petitioner signed the form on June 29, 2015, and it was hand -

executed by then Dean Pernell on June 29, 2015 , and by Provost

David on June 30, 2015.

b. Petitioner list ed his University Employment schedule with

check marks on Monday, Tuesday, Wednesday, Thursday, and Friday.

He then completed the form by indicating: Proposed Employer Name:

The Washington Trial Group, PLLC; Employer Address: no address

has been establ ished; Beginning date of employment: no

anticipated date; Ending date: left blank; Work

schedule/workdays: no days were marked; Work hours: left blank;

Anticipated compensation: none; Nature of Proposed Employment:

consulting. Petitioner checked the box which indicated no

University facilities, equipment, services or personnel would be

used. Petitioner signed the form on May 26, 2015, and it was

hand - executed by then Dean Pernell on May 26, 2015, and stamped

with Provost DavidÓs signature block on J une 1, 2016.

1 2 / Petitioner provided direct testimony on his first outside

employment form. Petitioner signed his first outside employment

form on October 6, 2010, and he included not only the beginning

and ending dates, but also the location, hours (8) , the workdays

(Saturday), the anticipated compensation ($0.00), and the purpose

(pro bono legal work). It is obvious that Petitioner knew how to

complete the outside employment form.

1 3 / Petitioner attempted to equate this outside employment as an

equa l to his ÐconsultingÑ for a law office. The undersigned does

not agree with that position: a voice coach and Ð consulting Ñ for

a law office are two distinct occupations. In light of the FAMU

Regulations, it would be prudent for Director Cavazos to file a n

outside employment form.

1 4 / The money from Disney was an endowment. Witnesses used the

terms grant or endowment interchangeably during the hearing, and

it was apparent that witnesses (save for Ms. Graham) did not have

an appreciation of the differen ce.

COPIES FURNISHED:

Jerry Girley, Esquire

The Girley Law Firm

125 East Marks Street

Orlando, Florida 32803

(eServed)

Maria A. Santoro, Esquire

Dennis, Jackson, Martin

& Fontela, P.A.

1591 Summit Lake Drive , Suite 200

Tallahassee, Florida 32317

(e Served)

Teresa Cooper Ward, Esquire

Dennis, Jackson, Martin

& Fontela, P.A.

1591 Summit Lake Drive , Suite 200

Tallahassee, Florida 32317

(eServed)

Tammy S. Barton, Agency Clerk

Florida Commission on Human Relations

4075 Esplanade Way , Room 110

Tall ahassee, Florida 32399 - 7020

(eServed)

Ka'Juel Washington, Esquire

The Washington Trial Group, PLLC

Suite 500

37 North Orange Avenue

Orlando, Florida 32801

(eServed)

Cheyanne Costilla, General Counsel

Florida Commission on Human Relations

4075 Esplanad e Way , Room 110

Tallahassee, Florida 32399 - 7020

(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 sho uld be filed with the agency that

will issue the Final Order in this case.