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

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

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WENDI KAPPERS, )

)

Petitioner, )

)

vs. ) Case No. 07-2773

)

SEMINOLE COMMUNITY COLLEGE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was conducted in this

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

Administrative Law Judge R. Bruce McKibben of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Wendi Kappers, pro se

656 Dartford Court

DeBary, Florida 32713

For Respondent: Sandra K. Ambrose, Esquire

Stenstrom, McIntosh, Colbert, Whigham,

Reischmann & Partlow, P.A.

1001 Heathrow Park Lane, Suite 4001

Lake Mary, Florida 32746

STATEMENT OF THE ISSUE

The issue in this case is whether Respondent wrongfully

terminated Petitioner's continuing contract of employment.

PRELIMINARY STATEMENT

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

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

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

Petitioner filed a "Petition for Reconsideration of Decision to

Terminate Continuing Contract" with Respondent. The Petition

was forwarded to the Division of Administrative Hearings so that

a formal administrative hearing could be conducted. The hearing

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

attendance.

At the final hearing, Petitioner called the following

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

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

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

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

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

Education Program and chief learning officer at SCC; Angela

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

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

testify on her own behalf, but offered 13 exhibits into

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

were admitted. Official recognition was taken of Exhibit 5.

Respondent re-called Dr. Hawkins and called Claudia

Salvano, director of Human Resource Development/Employee

Relations at SCC. Respondent's eight exhibits offered into

evidence were all admitted. The parties initially indicated

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

letter from Petitioner received on October 22, 2007, the

undersigned was advised that no transcript would be ordered.

The parties asked leave to submit proposed recommended orders on

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

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

preparation of this Recommended Order.

FINDINGS OF FACT

1. Petitioner is currently a doctoral level graduate

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

contract as a professor at SCC in the Networking and Electronics

Program (the "Networking Program").

2. Respondent is a community college within the state

community college system. It is governed by its Board of

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

Educational Services is Dr. Carol Hawkins. Angela Kersenbrock

is the dean of Career Programs, including the Networking

Program. Department chair in that program is Leon Portelli.

3. Beginning in calendar year 2003, SCC began to

experience decreased student enrollment, especially in the area

of the Networking Program. SCC instituted a program review

under Dean Kersenbrock's tutelage. A program review provides

for the collection of relevant data to ascertain the continued

viability of programs within the college. The program review of

the Networking Program found low and declining enrollment and

retention, a perceived job market decrease, difficulty in

recruiting industry partners, and limited internships for

students. Based on those findings, a series of recommendations

were made to improve the Networking Program. Included in the

recommendations were the following: increase class size, reduce

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

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

courses and sections, and work closely with industry partners to

locate jobs for graduates of the program.

4. Many of the recommendations were implemented even

before finalization of the program review. However, in

February 2007, Dean Kersenbrock decided the measures being taken

were not alleviating the problem. She then submitted her formal

recommendations to the Board of Trustees.

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

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

of Trustees approved the recommendation from Dean Kersenbrock's

review committee to implement a RIF in the Networking

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

the department, including Petitioner. The other faculty members

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

The proposed RIF intended to reduce the faculty from five to

two. Irwin and Belcher were immediately selected for

termination due to the fact that they could teach fewer topics

within the department than could the other three staff.

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

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

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

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

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

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

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

recommendations. If all those factors are equal between the

faculty members being considered, then length of service to the

college would be the determining factor. 1

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

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

concerned. Each faculty member had strengths and weaknesses

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

came down to making a decision. 2

8. Petitioner correctly pointed out that of the three

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

presentations at national level conferences. This fact weighed

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

the other faculty members. Likewise, Petitioner has the ability

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

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

the other two.

9. Some questions were raised about Petitioner's work

performance, attendance record, and poor supervisory

recommendations. However, none of those questions indicated

that Petitioner was inferior to her fellow professors.

10. Neither of the parties offered into evidence a true

comparison of the three faculty members. There was some

indication that each had strengths and weaknesses, but each

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

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

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

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

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

for the final RIF cut.

11. Pursuant to SCC policies and procedures, an employee

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

to the reduction taking effect. Petitioner was advised twice

concerning her termination: once in a letter from the director

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

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

dated May 17, 2007. The latter correspondence provided

Petitioner her appeal rights.

12. Petitioner was provided her severance package in

accordance with SCC policies.

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

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

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

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

CONCLUSIONS OF LAW

14. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

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

Florida Statutes (2007).

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

1. Due to financial exigency or for more

efficient operation of the College, the

President is authorized to develop a plan to

reduce the workforce in certain areas,

programs, or functions of the College.

2. Under such conditions, the plan will be

developed in accordance with established

procedures and approved by the Board prior

to implementation.

3. The President shall cause a procedure to

be developed to implement this policy.

16. SCC's RIF - Procedure 2.0400 provides:

Purpose:

To set out a procedure for the reduction of

personnel when required because of financial

exigency or for more efficient operation of

the College.

Procedure:

1. Employee(s) affected by a reduction in

force will be determined by the needs of the

College. In the determination of which

employee(s) will be affected, due

consideration will be give to such factors

as (1) the essentiality of the position,

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

and (4) supervisory recommendations. If all

factors are equal, length of service to the

College will be the determining factor.

2. The affected employee will be given at

least two (2) weeks notice prior to the

reduction. The employee will receive

severance which equals 10% percent of the

affected employee's annual base salary plus

three (3) months of health and dental

coverage for the employee. Affected

employees shall have the right to

participate in the College Group Health

Insurance Program under the provision of

COBRA for a total of 18 months from the date

of termination.

17. It appears from the evidence presented that SCC

followed its policies and procedures in conducting the RIF and

the subsequent termination of Petitioner's continuing contract.

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

(a) The college may dismiss an employee

under continuing contract or return the

employee to an annual contract upon

recommendation by the president and approval

by the board. The president shall notify

the employee in writing of the

recommendation, and upon approval by the

board, shall afford the employee the right

to a hearing in accordance with the policies

and procedures of the college. As an

alternative to the hearing rights provided

by college policies and procedures, the

employee may elect to request an

administrative hearing in accordance with

the guidelines of Chapter 120, Florida

Statutes , by filing a petition with the

board within twenty-one (21) days of receipt

of the recommendation of the president.

(b) Upon consolidation, reduction, or

elimination of a community college program

or restriction of the required duties of a

position by the board. The board may

determine on the basis of the criteria set

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

employees should be retained. . . .

[Emphasis added]

19. Minimum requirements and other considerations the

Board may look at when an employee challenges his/her

termination directly to the Board include: three years of

satisfactory service in the same college; educational

qualifications, efficiency, compatibility, character, and

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

length of time the duties and responsibilities of this position

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

14.0411(1) and (2).

20. The Respondent established by competent substantial

evidence that a basis existed for the RIF. The declining

enrollment, duplicity of classes, and smaller class sizes

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

Networking Program.

21. Conversely, Petitioner did not prove that the

recommendation to terminate her rather than two similarly

situated employees was arbitrary or capricious in nature. The

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

superior nor inferior to) the other professors who were

considered in the RIF process.

22. However, Respondent's failure to provide Petitioner

the opportunity to appeal directly to the Board is contrary to

the plain language of Florida Administrative Code Rule 6A-

14.0411. That rule gives the employee , not the college, the

right to choose a Chapter 120, Florida Statutes, proceeding

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

the Board, then the criteria in Florida Administrative Code Rule

6A-14.0411(1) and (2) become relevant.

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

likely prove fruitless based on the evidence provided at final

hearing in this matter, Respondent erred by not providing

Petitioner the opportunity.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that Petitioner be given an opportunity to

select a direct appeal to the Board of Seminole Community

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

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

contract would be upheld.

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

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 16th day of November, 2007.

ENDNOTES

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

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

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

appears to be a reasonable approach.

2/ The precise strengths and weaknesses of each professor were

not discussed. However, sufficient testimony was presented to

determine that all three were good professors and that each

probably had some room for improvement. Petitioner did have her

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

qualities seemed to make her status more superior than her

contemporaries.

COPIES FURNISHED :

Sandra K. Ambrose, Esquire

Stenstrom, McIntosh, Colbert, Whigham,

Reischmann & Partlow, P.A.

1001 Heathrow Park Lane, Suite 4001

Lake Mary, Florida 32746

Wendi Kappers

656 Dartford Court

DeBary, Florida 32713

Jeanine Blomberg

Interim Commissioner of Education

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399-0400

Deborah K. Kearney, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399-0400

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 issue the Final Order in this case.