- FGCU letter to Lounsbury
- Appeal Memo from David A. Lounsbury to FGCU (.pdf)
- Memo FGCU sent to David Lounsbury about administrative leave (.pdf)
- Memo from Ronald Toll to David Lounsbury about intent to take disciplinary action (.pdf)
- Redacted Lounsbury investigation report (.pdf)
- David Lounsbury arbitration findings
FORT MYERS — An instructor fired by Florida Gulf Coast University two years ago will have to keep waiting to learn a Lee County judge’s ruling on his fate.
Former criminal forensics associate professor David Lounsbury appeared before Lee Circuit Judge Sherra Winesett on Tuesday morning for a non-jury trial meant to determine whether the university must reinstate him, as ordered by an arbitrator one year ago, and almost two years to the day after his firing.
After attorneys for the university and for Lounsbury spent just under two hours arguing their sides, Winesett told both parties she would study the case law and evidence they submitted, consider their arguments, and schedule a future hearing to announce her ruling.
Lounsbury, 58, deferred comment to his attorney after the hearing, and Tampa-based labor lawyer Mark Kelly said he was not surprised that Winesett declined to issue a ruling on Tuesday.
“It’s a complicated case, it’s not a run-of-the-mill case, so I’m not surprised the judge is taking it under advisement,” Kelly said.
Attorneys for the university declined comment.
If Winesett determines Lounsbury should be reinstated, in line with a federal arbitrator’s May 2010 ruling, he will also be eligible for back pay.
Lounsbury’s nine-month salary rate in 2009 was $60,427.77. Based on that pay rate, and the pay increase given to faculty since Lounsbury’s firing, he could stand to collect roughly $122,000 in back pay, plus benefits.
Lounsbury was initially suspended with pay in January 2009, before the university fired him on July 14, 2009. He was fired following university investigations of separate allegations of sexual harassment and misappropriation of university funds.
An outside investigator hired by the university determined Lounsbury was collecting checks from students for a certification exam and depositing them into a personal account against university policy. However, the same investigator could not find any evidence that Lounsbury was doing so for nefarious purposes, or using the money for anything but the certification exam fees.
In 2010, Lounsbury challenged the firing and, with the help of the faculty union at FGCU, sought and received binding arbitration from a federal mediator. That arbitrator ordered the university to reinstate Lounsbury and award him back pay, declaring the school should have reprimanded Lounsbury, but not fired him.
On Tuesday, a attorney for FGCU argued that the arbitrator was biased against her firm because of a payment dispute from a previous arbitration, and that the arbitrator overstepped his authority.
“At best this is an unworkable order that fails to tell the parties where to go from here,” said attorney Dena Sokolow, who represented the university from the firm Allen, Norton & Blue. “At worst, it’s a biased award from a runaway arbitrator.”
Kelly conceded that the arbitrator’s 25-page decision was lengthy and at times rambling, but noted that the university failed to register any objection to the arbitrator’s behavior during a two-day hearing, and argued the university has failed to show that the arbitrator exceeded his authority in deciding the case.
Furthermore, Kelly questioned the university’s decision not to challenge the first half of the arbitrator’s determination — that the university incompletely investigated the sexual harassment claims and had no justification for Lounsbury’s initial, paid suspension.
The university, instead, is only challenging the portion of the arbitration that upends Lounsbury’s termination because of the misappropriation allegations.
“That seems a tacit admission that there was not partiality against the university,” Kelly said. “If, by that admission, the arbitrator was able to control any feelings he might have had for some attorney for half of the case, there’s no assuming he couldn’t control those feelings for the other half of the case as well.”
The university initially planned to call the arbitrator, Lawrence Hammer, as a witness in the case, but indicated in a motion that Hammer, described during the hearing as elderly, is “incapacitated.”
In spite of the university’s relatively limited request with regard to the arbitration, Sokolow argued that the arbitrator in fact bungled his entire order back in 2010.
“To say that this is an inartful arbitration award would be an unbelievable understatement,” Sokolow said on Tuesday. “He tells us that substantial punishment is due (Lounsbury), something short of termination, but he doesn’t tell us what it is.”
Winesett did not indicate a time frame for her ruling. Based on the requests of the attorneys on both sides, Winesett could uphold the arbitration and call for Lounsbury’s reinstatement, she could vacate the arbitration and allow Lounsbury’s firing to stand, or she could amend and clarify the arbitrator’s order.
Connect with higher education reporter Leslie Williams Hale at naplesnews.com/staff/leslie_hale