07-002773 Wendi Kappers vs. Seminole Community College
 Status: Closed
Recommended Order on Friday, November 16, 2007.


View Dockets  
Summary: Respondent did not properly offer Petitioner all of her appeal rights. However, Petitioner`s continuing contract was properly terminated.

1STATE OF FLORIDA

4DIVISION OF ADMINISTRATIVE HEARINGS

8WENDI KAPPERS, )

11)

12Petitioner, )

14)

15vs. ) Case No. 07-2773

20)

21SEMINOLE COMMUNITY COLLEGE, )

25)

26Respondent. )

28)

29RECOMMENDED ORDER

31Pursuant to notice, a final hearing was conducted in this

41case on October 19, 2007, in Sanford, Florida, before

50Administrative Law Judge R. Bruce McKibben of the Division of

60Administrative Hearings.

62APPEARANCES

63For Petitioner: Wendi Kappers, pro se

69656 Dartford Court

72DeBary, Florida 32713

75For Respondent: Sandra K. Ambrose, Esquire

81Stenstrom, McIntosh, Colbert, Whigham,

85Reischmann & Partlow, P.A.

891001 Heathrow Park Lane, Suite 4001

95Lake Mary, Florida 32746

99STATEMENT OF THE ISSUE

103The issue in this case is whether Respondent wrongfully

112terminated Petitioner's continuing contract of employment.

118PRELIMINARY STATEMENT

120On or about April 26, 2007, Respondent, Seminole Community

129College ("SCC"), notified Petitioner that her employment

138contract would be cancelled at the end of the next school term.

150Petitioner filed a "Petition for Reconsideration of Decision to

159Terminate Continuing Contract" with Respondent. The Petition

166was forwarded to the Division of Administrative Hearings so that

176a formal administrative hearing could be conducted. The hearing

185was held on the date set forth above, and both parties were in

198attendance.

199At the final hearing, Petitioner called the following

207witnesses: John DelGado, SCC faculty member; Susan Dooley,

215professor and program manager at SCC; Alan Kraft, professor and

225program manager at SCC; Melinda White, program manager at SCC;

235Dick Hamann, college information officer at SCC; Ben Taylor,

244faculty member at SCC; Dr. Carol Hawkins, vice president for

254Education Program and chief learning officer at SCC; Angela

263Kersenbrock, dean of Career and Technical Education at SCC; and

273Leon Portelli, IT department chair at SCC. Petitioner did not

283testify on her own behalf, but offered 13 exhibits into

293evidence; Exhibits 1 through 4, 6 through 8, and 10 through 13

305were admitted. Official recognition was taken of Exhibit 5.

314Respondent re-called Dr. Hawkins and called Claudia

321Salvano, director of Human Resource Development/Employee

327Relations at SCC. Respondent's eight exhibits offered into

335evidence were all admitted. The parties initially indicated

343their intent to order a transcript of the final hearing, but by

355letter from Petitioner received on October 22, 2007, the

364undersigned was advised that no transcript would be ordered.

373The parties asked leave to submit proposed recommended orders on

383or before November 5, 2007. Each party timely submitted a

393Proposed Recommended Order, and each was duly-considered in the

402preparation of this Recommended Order.

407FINDINGS OF FACT

4101. Petitioner is currently a doctoral level graduate

418student. At all times relevant hereto, she held a continuing

428contract as a professor at SCC in the Networking and Electronics

439Program (the "Networking Program").

4442. Respondent is a community college within the state

453community college system. It is governed by its Board of

463Trustees. Dr. Ann McGee is president of SCC; vice president of

474Educational Services is Dr. Carol Hawkins. Angela Kersenbrock

482is the dean of Career Programs, including the Networking

491Program. Department chair in that program is Leon Portelli.

5003. Beginning in calendar year 2003, SCC began to

509experience decreased student enrollment, especially in the area

517of the Networking Program. SCC instituted a program review

526under Dean Kersenbrock's tutelage. A program review provides

534for the collection of relevant data to ascertain the continued

544viability of programs within the college. The program review of

554the Networking Program found low and declining enrollment and

563retention, a perceived job market decrease, difficulty in

571recruiting industry partners, and limited internships for

578students. Based on those findings, a series of recommendations

587were made to improve the Networking Program. Included in the

597recommendations were the following: increase class size, reduce

605faculty (Reduction in Force (RIF)), cross-teaching in other

613areas, cut back on adjuncts, reduce contract length, consolidate

622courses and sections, and work closely with industry partners to

632locate jobs for graduates of the program.

6394. Many of the recommendations were implemented even

647before finalization of the program review. However, in

655February 2007, Dean Kersenbrock decided the measures being taken

664were not alleviating the problem. She then submitted her formal

674recommendations to the Board of Trustees.

6805. A formal presentation was made to the Board of Trustees

691on April 17, 2007. After much discussion and debate, the Board

702of Trustees approved the recommendation from Dean Kersenbrock's

710review committee to implement a RIF in the Networking

719Department. At that time, there were five faculty members in

729the department, including Petitioner. The other faculty members

737were: John DelGado, Ben Taylor, Bill Irwin, and Gary Belcher.

747The proposed RIF intended to reduce the faculty from five to

758two. Irwin and Belcher were immediately selected for

766termination due to the fact that they could teach fewer topics

777within the department than could the other three staff.

7866. After they were terminated, SCC had to select one of

797the three remaining staff (DelGado, Taylor, and Petitioner) to

806be the final cut for the RIF. Each of the three had identified

819strengths and weaknesses; so, the selection was a difficult one

829to make. In order to make the decision, the following factors

840were considered: (1) the essentiality of the position, (2) work

850performance, (3) attendance record, and (4) supervisory

857recommendations. If all those factors are equal between the

866faculty members being considered, then length of service to the

876college would be the determining factor. 1

8837. SCC evaluated DelGado, Taylor, and Petitioner and found

892them, on aggregate, to be equal as far as the four factors were

905concerned. Each faculty member had strengths and weaknesses

913within the four categories, but were essentially "tied" when it

923came down to making a decision. 2

9308. Petitioner correctly pointed out that of the three

939faculty members, she was the only one who had experience making

950presentations at national level conferences. This fact weighed

958in her favor, but it was not enough to outweigh the strengths of

971the other faculty members. Likewise, Petitioner has the ability

980to teach a number of different classes, a positive in her favor.

992But, again, her abilities did not make her more essential than

1003the other two.

10069. Some questions were raised about Petitioner's work

1014performance, attendance record, and poor supervisory

1020recommendations. However, none of those questions indicated

1027that Petitioner was inferior to her fellow professors.

103510. Neither of the parties offered into evidence a true

1045comparison of the three faculty members. There was some

1054indication that each had strengths and weaknesses, but each

1063person's individual assets or liabilities weren't described with

1071any particularity. Thus, a substantive de novo review of that

1081part of Respondent's decision making process is not possible.

1090When all was said and done, Petitioner's length of service at

1101SCC was shorter than the other two, and, thus, she was selected

1113for the final RIF cut.

111811. Pursuant to SCC policies and procedures, an employee

1127affected by a RIF must be given at least two weeks notice prior

1140to the reduction taking effect. Petitioner was advised twice

1149concerning her termination: once in a letter from the director

1159of Human Resources Development--letter dated April 26, 2007--and

1167once in a letter from SCC's president, E. Ann McGee--letter

1177dated May 17, 2007. The latter correspondence provided

1185Petitioner her appeal rights.

118912. Petitioner was provided her severance package in

1197accordance with SCC policies.

120113. President McGee's letter to Petitioner stated in part,

"1210You have the right to appeal the Board's decision pursuant to

1221Chapter 120, Florida Statutes." However, the letter did not

1230address Petitioner's right to appeal directly to the Board.

1239CONCLUSIONS OF LAW

124214. The Division of Administrative Hearings has

1249jurisdiction over the parties to and the subject matter of this

1260proceeding pursuant to Section 120.569 and Subsection 120.57(1),

1268Florida Statutes (2007).

127115. SCC's RIF - Policy 2.040 states, in pertinent part:

12811. Due to financial exigency or for more

1289efficient operation of the College, the

1295President is authorized to develop a plan to

1303reduce the workforce in certain areas,

1309programs, or functions of the College.

13152. Under such conditions, the plan will be

1323developed in accordance with established

1328procedures and approved by the Board prior

1335to implementation.

13373. The President shall cause a procedure to

1345be developed to implement this policy.

135116. SCC's RIF - Procedure 2.0400 provides:

1358Purpose:

1359To set out a procedure for the reduction of

1368personnel when required because of financial

1374exigency or for more efficient operation of

1381the College.

1383Procedure:

13841. Employee(s) affected by a reduction in

1391force will be determined by the needs of the

1400College. In the determination of which

1406employee(s) will be affected, due

1411consideration will be give to such factors

1418as (1) the essentiality of the position,

1425(2) work performance, (3) attendance record,

1431and (4) supervisory recommendations. If all

1437factors are equal, length of service to the

1445College will be the determining factor.

14512. The affected employee will be given at

1459least two (2) weeks notice prior to the

1467reduction. The employee will receive

1472severance which equals 10% percent of the

1479affected employee's annual base salary plus

1485three (3) months of health and dental

1492coverage for the employee. Affected

1497employees shall have the right to

1503participate in the College Group Health

1509Insurance Program under the provision of

1515COBRA for a total of 18 months from the date

1525of termination.

152717. It appears from the evidence presented that SCC

1536followed its policies and procedures in conducting the RIF and

1546the subsequent termination of Petitioner's continuing contract.

155318. Florida Administrative Code Rule 6A-14.0411(5) states:

1560(a) The college may dismiss an employee

1567under continuing contract or return the

1573employee to an annual contract upon

1579recommendation by the president and approval

1585by the board. The president shall notify

1592the employee in writing of the

1598recommendation, and upon approval by the

1604board, shall afford the employee the right

1611to a hearing in accordance with the policies

1619and procedures of the college. As an

1626alternative to the hearing rights provided

1632by college policies and procedures, the

1638employee may elect to request an

1644administrative hearing in accordance with

1649the guidelines of Chapter 120, Florida

1655Statutes , by filing a petition with the

1662board within twenty-one (21) days of receipt

1669of the recommendation of the president.

1675(b) Upon consolidation, reduction, or

1680elimination of a community college program

1686or restriction of the required duties of a

1694position by the board. The board may

1701determine on the basis of the criteria set

1709forth in subsections (1) and (2), which

1716employees should be retained. . . .

1723[Emphasis added]

172519. Minimum requirements and other considerations the

1732Board may look at when an employee challenges his/her

1741termination directly to the Board include: three years of

1750satisfactory service in the same college; educational

1757qualifications, efficiency, compatibility, character, and

1762capacity to meet the educational needs of the community; and the

1773length of time the duties and responsibilities of this position

1783are expected to be needed. See Fla. Admin. Code R. 6A-

179414.0411(1) and (2).

179720. The Respondent established by competent substantial

1804evidence that a basis existed for the RIF. The declining

1814enrollment, duplicity of classes, and smaller class sizes

1822justified the Board's decision to institute a RIF within the

1832Networking Program.

183421. Conversely, Petitioner did not prove that the

1842recommendation to terminate her rather than two similarly

1850situated employees was arbitrary or capricious in nature. The

1859facts establish that Petitioner was equal to (i.e. , neither

1868superior nor inferior to) the other professors who were

1877considered in the RIF process.

188222. However, Respondent's failure to provide Petitioner

1889the opportunity to appeal directly to the Board is contrary to

1900the plain language of Florida Administrative Code Rule 6A-

190914.0411. That rule gives the employee , not the college, the

1919right to choose a Chapter 120, Florida Statutes, proceeding

1928instead of a direct appeal. If the employee opts to appeal to

1940the Board, then the criteria in Florida Administrative Code Rule

19506A-14.0411(1) and (2) become relevant.

195523. While an appeal to the Board by this Petitioner will

1966likely prove fruitless based on the evidence provided at final

1976hearing in this matter, Respondent erred by not providing

1985Petitioner the opportunity.

1988RECOMMENDATION

1989Based on the foregoing Findings of Fact and Conclusions of

1999Law, it is

2002RECOMMENDED that Petitioner be given an opportunity to

2010select a direct appeal to the Board of Seminole Community

2020College. As far as the instant case is concerned, Petitioner

2030failed to meet her burden of proof and the termination of her

2042contract would be upheld.

2046DONE AND ENTERED this 16th day of November, 2007, in

2056Tallahassee, Leon County, Florida.

2060S

2061R. BRUCE MCKIBBEN

2064Administrative Law Judge

2067Division of Administrative Hearings

2071The DeSoto Building

20741230 Apalachee Parkway

2077Tallahassee, Florida 32399-3060

2080(850) 488-9675 SUNCOM 278-9675

2084Fax Filing (850) 921-6847

2088www.doah.state.fl.us

2089Filed with the Clerk of the

2095Division of Administrative Hearings

2099this 16th day of November, 2007.

2105ENDNOTES

21061/ There was no testimony as to whether the four factors were

2118weighed individually in order, or whether they were taken as a

2129whole. By inference, the latter seems to be the case and

2140appears to be a reasonable approach.

21462/ The precise strengths and weaknesses of each professor were

2156not discussed. However, sufficient testimony was presented to

2164determine that all three were good professors and that each

2174probably had some room for improvement. Petitioner did have her

2184own impressions as to her qualities, but none of the cited

2195qualities seemed to make her status more superior than her

2205contemporaries.

2206COPIES FURNISHED :

2209Sandra K. Ambrose, Esquire

2213Stenstrom, McIntosh, Colbert, Whigham,

2217Reischmann & Partlow, P.A.

22211001 Heathrow Park Lane, Suite 4001

2227Lake Mary, Florida 32746

2231Wendi Kappers

2233656 Dartford Court

2236DeBary, Florida 32713

2239Jeanine Blomberg

2241Interim Commissioner of Education

2245Department of Education

2248Turlington Building, Suite 1514

2252325 West Gaines Street

2256Tallahassee, Florida 32399-0400

2259Deborah K. Kearney, General Counsel

2264Department of Education

2267Turlington Building, Suite 1244

2271325 West Gaines Street

2275Tallahassee, Florida 32399-0400

2278NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

2284All parties have the right to submit written exceptions within

229415 days from the date of this Recommended Order. Any exceptions

2305to this Recommended Order should be filed with the agency that

2316will issue the Final Order in this case.

Select the PDF icon to view the document.
PDF
Date
Proceedings
PDF:
Date: 01/17/2008
Proceedings: Agency Final Order
PDF:
Date: 01/17/2008
Proceedings: Final Order filed.
PDF:
Date: 11/16/2007
Proceedings: Recommended Order
PDF:
Date: 11/16/2007
Proceedings: Recommended Order (hearing held October 19, 2007). CASE CLOSED.
PDF:
Date: 11/16/2007
Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
PDF:
Date: 11/08/2007
Proceedings: Proposed Findings of Fact, Conclusions of Law and Order filed.
PDF:
Date: 11/06/2007
Proceedings: (Respondent`s) Proposed Findings of Fact, Conclusions of Law and Order filed.
PDF:
Date: 11/05/2007
Proceedings: Petitioner`s Proposed Recommended Order filed.
PDF:
Date: 10/22/2007
Proceedings: Letter to Ms. Ambrose from W. Kappers regarding the decision to withdraw her request to receive a copy of the transcripts filed.
PDF:
Date: 10/22/2007
Proceedings: Letter to Judge McKibben from W. Kappers regarding the decision to withdraw her request to receive a copy of the transcripts filed.
PDF:
Date: 10/22/2007
Proceedings: Letter to Mr. Horvath from W. Kappers requesting copies of all documents brought to the hearing filed.
Date: 10/19/2007
Proceedings: CASE STATUS: Hearing Held.
PDF:
Date: 10/18/2007
Proceedings: Letter to Ms. Ambrose from W. Kappers regarding receipt of Ms. Ambrose`s objection to W. Kapper`s Motion to Compel filed.
PDF:
Date: 10/18/2007
Proceedings: Letter to Judge McKibben from W. Kappers regarding response to the Objection to the Motion to Compel filed October 17, 2007 filed.
PDF:
Date: 10/17/2007
Proceedings: Objection to Motion to Compel filed.
PDF:
Date: 10/17/2007
Proceedings: Letter to Ms. Kappers from S. Ambrose regarding two exhibits being added to the exhibit list filed.
PDF:
Date: 10/17/2007
Proceedings: Motion to Compel filed.
PDF:
Date: 10/15/2007
Proceedings: Order Granting Withdrawal of Counsel.
PDF:
Date: 10/15/2007
Proceedings: Stipulated Motion to Withdraw filed.
PDF:
Date: 10/12/2007
Proceedings: Letter to S. Ambrose from M. Major regarding Petitioner`s exhibit list filed.
PDF:
Date: 10/12/2007
Proceedings: (Petitioner`s) Witness List filed.
PDF:
Date: 10/11/2007
Proceedings: Witness List filed.
PDF:
Date: 09/24/2007
Proceedings: Undeliverable envelope returned from the Post Office.
PDF:
Date: 09/17/2007
Proceedings: Order Re-scheduling Hearing (hearing set for October 19, 2007; 9:00 a.m.; Sanford, FL).
PDF:
Date: 09/13/2007
Proceedings: Letter to Judge McKibben from W. Kappers requesting to reschedule hearing filed.
PDF:
Date: 09/11/2007
Proceedings: Letter to Judge McKibben from S. Ambrose regarding dates available for hearing filed.
PDF:
Date: 09/10/2007
Proceedings: Letter to Judge McKibben from M. Major advising of available dates for hearing filed.
PDF:
Date: 09/10/2007
Proceedings: Notice of Appearance (filed by M. Major).
PDF:
Date: 08/31/2007
Proceedings: Subpoena Duces Tecum filed.
PDF:
Date: 08/30/2007
Proceedings: Letter to W. Kappers from M. Rothbaum regarding exhibits and subpoena information filed.
PDF:
Date: 08/27/2007
Proceedings: Subpoena ad Testificandum (4) filed.
PDF:
Date: 08/24/2007
Proceedings: Letter to Judge McKibben from W. Kappers advising of available dates filed.
PDF:
Date: 08/24/2007
Proceedings: Letter to W. Kappers from M. Rothbaum regarding Ms. Kappers response to motion for continuance filed.
PDF:
Date: 08/23/2007
Proceedings: Letter to W. Kappers from M. Rothbaum regarding copies of witnesses to be subpoenaed filed.
PDF:
Date: 08/23/2007
Proceedings: Letter to Judge McKibben from W. Kappers requesting that the judge deny motion for continuance filed.
PDF:
Date: 08/23/2007
Proceedings: Order Granting Continuance (parties to advise status by September 14, 2007).
PDF:
Date: 08/22/2007
Proceedings: Motion for Continuance filed.
PDF:
Date: 08/13/2007
Proceedings: Letter to Judge McKibben from S. Ambrose enclosing additional documentation relevant to the resolution of the dispute.
PDF:
Date: 07/27/2007
Proceedings: Affidavit of Cluadia Salvano filed.
PDF:
Date: 07/27/2007
Proceedings: Letter to Judge McKibben from M. Rothbaum regarding the public records requested for review in conjunction with the forthcoming administrative hearing filed.
PDF:
Date: 07/24/2007
Proceedings: Order Regarding Discovery.
PDF:
Date: 07/23/2007
Proceedings: Response to Petitioner`s Motion to Compel filed.
PDF:
Date: 07/19/2007
Proceedings: Letter to Ms. Kappers from M. Rothbaum regarding appendix containing information relevant to the resolution of the dispute filed.
PDF:
Date: 07/19/2007
Proceedings: Letter to Ms. Kappers from M. Rothbaum regarding continuing to conduct a diligent search for documents responsive to request filed.
PDF:
Date: 07/16/2007
Proceedings: Motion to Compel Case filed.
PDF:
Date: 07/09/2007
Proceedings: Letter to Judge McKibben from S. Ambrose regarding additional documentation relevant to the resolution of the dispute filed.
PDF:
Date: 07/03/2007
Proceedings: Order of Pre-hearing Instructions.
PDF:
Date: 07/03/2007
Proceedings: Notice of Hearing (hearing set for August 27, 2007; 9:00 a.m.; Sanford, FL).
PDF:
Date: 06/29/2007
Proceedings: Response to Initial Order filed by Petitioner.
PDF:
Date: 06/27/2007
Proceedings: Response to Initial Order.
PDF:
Date: 06/21/2007
Proceedings: First Amended Petition/Request for Determination of Invalidity of Rule filed.
PDF:
Date: 06/21/2007
Proceedings: Reduction in Force Plan filed.
PDF:
Date: 06/21/2007
Proceedings: Petition for Reconsideration of Decision to Terminate Continuing Contract filed.
PDF:
Date: 06/21/2007
Proceedings: Referral Letter filed.
PDF:
Date: 06/21/2007
Proceedings: Initial Order.

Case Information

Judge:
R. BRUCE MCKIBBEN
Date Filed:
06/21/2007
Date Assignment:
06/21/2007
Last Docket Entry:
01/17/2008
Location:
Sanford, Florida
District:
Middle
Agency:
ADOPTED IN TOTO
 

Counsels

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