08-003265 Seminole Community College vs. Dr. Loraine Brown Status: Closed Recommended Order on Friday, March 13, 2009.

Summary: Petitioner did not prove that nursing professor was guilty of gross insubordination and willful neglect of duty. Thus, termination of professor`s contract should be reversed.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SEMINOLE COMMUNITY COLLEGE, )

)

Petitioner, )

)

vs. ) Case No. 08-3265

)

DR. LORAINE BROWN, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was held in this case before

Administrative Law Judge Carolyn S. Holifield of the Division of

Administrative Hearings on September 10 and 11, 2008, in

Sanford, Florida.

APPEARANCES

For Petitioner: Sandra K. Ambrose, Esquire

Stenstrom, McIntosh, Colbert, Whigham,

Reischmann & Partlow, P.A.

1001 Heathrow Park Lane, Suite 4001

Lake Mary, Florida 32746

For Respondent: Larry H. Colleton, Esquire

The Colleton Law Firm, P.A.

Post Office Box 677459

Orlando, Florida 32867

STATEMENT OF THE ISSUE

The issue is whether the Board of Trustees of Seminole

Community College's termination of the continuing contract of

Respondent was proper.

PRELIMINARY STATEMENT

On May 6, 2008, the Board of Trustees of Seminole Community

College ("Board"), terminated the continuing contract of

employment for Respondent, Dr. Lorraine Brown, effective,

June 17, 2008. By letter dated May 7, 2008, Respondent was

notified of the Board's decision and advised of her right to

challenge this action. Respondent challenged the Board's

decision and timely filed a Petition for Administrative Hearing.

Subsequently, Respondent filed an Amended Petition for

Administrative Hearing ("Amended Petition"). In addition to

challenging the Board's decision, the Amended Petition alleged

that through its actions against Dr. Brown, Petitioner, Seminole

Community College, violated "the Americans with Disabilities

Act, the Civil Rights Act, as amended, and the Florida Civil

Rights Act." The matter was referred to the Division of

Administrative Hearings (Division) on July 3, 2008, and was set

for hearing, as noted above.

Prior to hearing, an Order of Pre-Hearing Instructions was

issued requiring the parties to file a pre-hearing stipulation.

In separately filed pre-hearing statements, the parties

specified admitted facts that required no proof at hearing.

Respondent's unilateral Pre-Hearing Statement also listed the

issues as whether the employment action (termination of

Respondent's contract) by the Board was based on racial

discrimination, hostile work environment, retaliation, Americans

with Disabilities Act, and age discrimination. As the

undersigned indicated at the final hearing, those issues were

not properly before this tribunal and, thus, were not addressed

in this proceeding. See § 760.11, Fla. Stat. (2007). 1

At hearing, Petitioner called ten witnesses: (1) Dr. Carol

Hawkins; (2) Angela Kersenbrock; (3) Angela Laxton; (4) Alan

Kraft; (5) Lois Hopkins; (6) Maureen Tremmel; (7) Dr. Claudia

Salvano; (8) Patty Yorty; (9) Mari Rains; and (10) Cheryl

Cicotti. Petitioner's Exhibits 1 through 8, 10 through 17 and

19 through 33 were admitted into evidence. Respondent testified

on her own behalf, and Respondent's Exhibits 3, 13, 15 and 21

were admitted into evidence.

The four-volume Transcript of the proceeding was filed with

the Division on October 21, 2008. Petitioner timely filed its

Proposed Findings of Fact and Conclusions of Law, which has been

considered in preparation of this Recommended Order. Respondent

did not file a proposed recommended order.

FINDINGS OF FACT

1. Petitioner, Seminole Community College (SCC), is a

community college in Seminole County, Florida, governed by a

District Board of Trustees.

2. At all times relevant to this proceeding, Carol Hawkins

was vice-president for educational programs/chief learning

officer at SCC. As vice-president, all college deans report to

Vice-President Hawkins, and she is responsible for all academic

programs, including the curriculum, academic quality and

delivery of instruction to students.

3. At all times relevant to this proceeding, Angela

Kersenbrock ("Dean Kersenbrock") was the dean of Career and

Technical Educational Programs at SCC, which included the

Nursing Department. In this position, Dean Kersenbrock had

administrative responsibilities for all departments within those

programs.

4. At all times relevant to this proceeding, Respondent,

Lorraine Brown (Dr. Brown or Respondent), was a nursing

professor under continuing contract pursuant to Florida

Administrative Code 6A-14.0411 and was a full-time faculty

member at SCC.

5. Dr. Brown has been employed as a faculty member in the

Nursing Department at SCC for about ten years, having first been

employed there in 1997 or 1998. During the time she has been

employed at SCC, Dr. Brown was given a sabbatical to complete

the post-graduate requirements for her doctoral degree. She

successfully completed the program and earned a Ph.D.

6. Dr. Brown's nursing specialty is pediatrics, and she is

recognized and respected by her professional colleagues for her

expertise in that area. During her tenure at SCC, Dr. Brown has

also has been recognized for her expertise in curriculum

development.

7. In or about January 2005, Dr. Brown was assigned to the

position of clinical coordinator for the Nursing Department. As

clinical coordinator, Dr. Brown was the liaison between the

Nursing Department and the medical facilities at which SCC's

nursing students did their clinical experiences. In that role,

Dr. Brown was required to work cooperatively with both faculty

members in the Nursing Department and the designated

representatives of the various medical facilities.

8. Dr. Brown served as the clinical coordinator until she

was removed from the position, effective December 2007.

2006-2007 Academic Year

9. During the 2006-2007 academic year, Respondent met

with several SCC administrators, including Vice-President

Hawkins; Dean Kersenbrock; and Claudia Salvano, Human Resources

director, and discussed issues in the Nursing Department that

were of concern to her.

10. In her meetings with the administrators, Dr. Brown

discussed several issues in the Nursing Department that, based

on her perception, needed to be investigated and/or addressed.

The concerns that Respondent raised included the following:

(1) disparity in faculty workload; (2) student admission and

disciplinary practices; (3) the application of policies and

procedures; and (4) employee recruitment and hiring practices.

Dr. Brown also expressed concern and her perception that:

(1) she had been discriminated against and/or treated unfairly

by the Department Chair Ruth Corey; (2) she had challenges

interacting with other faculty; and (3) the Nursing Department

faculty's failure to function as a team.

11. During the 2006-2007 academic year, both Dean

Kersenbrock and Ms. Salvano met with Dr. Brown numerous times

about the issues that she had reported to them. They also

talked to Chair Corey about the issues that Dr. Brown raised.

12. As a result of the claims Dr. Brown made against her,

Chair Corey approached Dean Kersenbrock and told her she was not

comfortable directly supervising Dr. Brown. As a result, in the

2007 spring semester, Dean Kersenbrock and Ms. Salvano took on a

larger role in regard to issues involving Dr. Brown.

13. In or about May 2007, Ms. Salvano met with Dr. Brown

regarding some of the issues she had previously raised. This

meeting was held after the SCC Diversity and Equity Office

forwarded the matter to Human Resources because it viewed

Dr. Brown's concerns as employee relations issues. Initially,

during that meeting, Dr. Brown was very calm, collected and

clear about her issues, but, later, she became very upset and

agitated and began crying. By the end of the meeting, Dr. Brown

had regained her composure. However, as a result of what

occurred in the meeting, Ms. Salvano became concerned about

Dr. Brown's well-being.

14. As part of Ms. Salvano's review of the employee

relations issues in the Nursing Department, Ms. Salvano talked

not only to Chair Corey and Dr. Brown, but also to some faculty

members. As of May 2007, Ms. Salvano had reached no conclusion

on those issues. However, she had determined the following:

(1) There were interpersonal conflicts in the Nursing

Department; (2) Dr. Brown believed she was being treated

unfairly; (3) There was friction between Dr. Brown and Chair

Corey; and (4) Dr. Brown had feelings of anger and hostility

related to the foregoing. Until the issues in the Nursing

Department could be sorted out, Ms. Salvano believed Dr. Brown

might need some time off and/or be allowed to work at home.

Ms. Salvano recommended this course of action, and upon approval

by the SCC president, Dr. Brown was offered the option of taking

some time off or working at home.

15. Dr. Brown accepted the accommodation offered and

approved by the SCC administration and chose the option of

working at home. This accommodation was offered and approved by

SCC to assist in improving Dr. Brown's health and well-being.

During this time, Dr. Brown's course load was reduced, and she

was allowed to work from home beginning in May 2007 for the

first part of the summer semester. Subsequently, Dr. Brown's

time at home was extended to include the entire summer after she

took medical leave for shoulder surgery. As a result of the

medical leave, Dr. Brown returned to work in August 2007.

16. Although SCC looked into the matters raised by

Dr. Brown, the ultimate findings and resolution, if any, of most

of those issues were not presented as part of this proceeding. 2

17. In or about April 2007, Chair Corey announced that she

would be resigning from SCC. Soon thereafter, SCC began to

search for a new Department chair for the Nursing Department.

18. Between late spring and August 2007, the Nursing

Department was going through significant transitions, including

a change in the Department chair and the Department's impending

move from the SCC Sanford campus to the new Altamonte Springs

campus. Also, there was interpersonal conflict among faculty 3

and some faculty distress about all the changes within the

Department. In an effort to address some of these issues, the

SCC administration hired a consultant specializing in

organizational development and training.

19. Mari Rains was the consultant hired to work with the

Nursing Department faculty to address primarily the functioning

of the faculty as a team. In a preliminary meeting, Ms. Salvano

told Ms. Rains that Dr. Brown had expressed some concerns about

employee relations issues and interacting with Department

faculty. Because Dr. Brown was a part of the Nursing Department

and had these concerns, Ms. Rains believed that the session she

planned to conduct would be more effective if Dr. Brown could

attend. However, because most of the faculty would not be

working later in the summer, Dean Kersenbrock decided to proceed

with the consultant's session(s) during the first summer term,

even though Dr. Brown was not working on campus.

20. Ms. Rains met with the faculty on May 30, 2007. The

majority of faculty members were at the meeting, but Dr. Brown,

who was working at home, and a few other faculty members did not

attend the meeting. After Ms. Rains explained the reason she

was there, some faculty members voiced concern about the

confidentiality of any statements that they might make during

the session. In light of the faculty's concerns, Ms. Rains,

concluded that the faculty was not going to give or discuss with

her any information which would allow her to assess and/or

determine the Nursing Department faculty's challenges. Thus,

instead of engaging in activities designed to assess how the

Department faculty worked together, with the faculty's consent,

Ms. Rains observed the interaction among the faculty during

their strategic planning meeting. The observation lasted about

90 minutes.

21. During the strategic planning meeting, Ms. Rains

observed the faculty members being respectful to each other and

problem-solving appropriately. No one overbearing person

commanded the attention of the team. Ms. Rains also observed

that the faculty members presented active listening skills,

active healthy dialogue, and constructive conflict resolution.

22. Based on her 90-minute observation of the Nursing

Department strategic planning meeting, Ms. Rains made two

optional recommendations: (1) treat the interpersonal conflict

among faculty as an independent employee relations problem,

offer the faculty member (i.e., Dr. Brown) individual leadership

coaching, and utilize a member coach and/or consultant to

integrate Dr. Brown back into the team; or (2) prior to

undertaking full and in-depth organizational assessment,

SCC should provide confidentiality for the Department members.

23. Ms. Rains was not retained to do any further work with

the Nursing Department, in part, because SCC could not legally

guarantee confidentiality to employees for this kind of matter.

24. In late June 2007, based on Ms. Rains' recommendation,

Dean Kersenbrock and Ms. Salvano offered to provide Dr. Brown

with a coach or consultant in order to make her transition back

to campus smooth and to improve her communication skills. With

regard to the latter, Dr. Brown understood that the coach would

help her reduce her rate of speed and tone of her voice that

seems to convey urgency and shocking. Dr. Brown declined the

offer, stating that she would opt to work on these areas on her

own.

August 2007 through November 2008

25. In late July or early August 2007, Cheryl Cicotti was

hired as the SCC director of nursing, previously referred to as

chair of the Department. Director Cicotti began working in that

position in late August 2007. As the director, Ms. Cicotti has

administrative responsibilities, supervises faculty, and is

responsible for the Nursing Department's curriculum and courses,

faculty development, leadership, and budget.

26. Dr. Brown returned to work at SCC in August 2007,

about the same time Director Cicotti began as director of the

Nursing Department.

27. Prior to being hired as head of the SCC Nursing

Department, Director Cicotti had known Dr. Brown for two or

three years through their involvement in nursing-related

projects and/or community organizations. During that time,

Director Cicotti and Dr. Brown had a good working relationship.

Through that work, Director Cicotti's opinion was that Dr. Brown

was a "very smart woman" who had special skills and capabilities

in curriculum development and on-line teaching.

28. In mid-September 2007, Director Cicotti met with

Dr. Brown and discussed her management style, as well as her

expectations of Dr. Brown. At some point during the meeting,

Dr. Brown began to tell Director Cicotti of the past "wrongs"

that she (Brown) perceived had been done to her over the past

two or three years by the former Department chair and the SCC

administration. Director Cicotti listened, but then advised

Dr. Brown to start "new" with her as the Director. Director

Cicotti also talked to Dr. Brown about professionalism and the

need for those working in the Department to be professional at

all times.

29. Director Cicotti first learned that Dr. Brown was

dissatisfied with and had complaints about the previous Nursing

Department administration when Dr. Brown disclosed that

information in their initial meeting.

30. At the end of September 2007, while at a Nursing

Department faculty meeting, Director Cicotti observed Dr. Brown

exhibiting behavior that she believed was unprofessional. There

was a discussion about which faculty member would develop a

certain curriculum. After a while, Dr. Brown stated that she

would develop the course and/or curriculum, but added that she

would not coordinate the course or curriculum. As Dr. Brown was

speaking, her voice got loud. At that point, one faculty member

said she would help Dr. Brown and also volunteered the

assistance of another faculty member, who apparently was not at

the meeting. Although assistance had been offered to Dr. Brown,

she continued talking about the same topic for three to five

minutes, asking who was going to help her. Dr. Brown also made

comments such as, "I will not do this alone. I do not want to

do all this work and be shot down again by the faculty."

Dr. Brown's voice got louder as she made those statements.

Finally, because Dr. Brown refused to move on to another topic

after the issue had been resolved, Director Cicotti stepped in

and told Dr. Brown that faculty had volunteered to help her and

that she (Brown) had her answer.

31. After the faculty meeting, Dr. Brown voluntarily came

to Director Cicotti's office and apologized for her behavior at

the faculty meeting. The next day, Dr. Brown came to Director

Cicotti's office again and apologized for her behavior. On both

days, Director Cicotti counseled Dr. Brown about her

unprofessional conduct and expressed concern about that conduct.

Director Cicotti explained that as a result of Dr. Brown's

unprofessional conduct, she had to "step in" at the faculty

meeting to neutralize the escalating situation.

32. The second time that Dr. Brown apologized for her

conduct in the faculty meeting, she agreed that her behavior was

not appropriate. Dr. Brown stated that she was very stressed

the day of the faculty meeting; that during the day of the

meeting, her level of stress was growing; and by the time of the

faculty meeting, she was very stressed. Director Cicotti

complimented Dr. Brown, telling her she was a very smart woman

with "very strong teaching abilities," and "abilities in the

classroom." Director Cicotti then told Dr. Brown that being

such a smart woman, she should know how to handle stressful

situations professionally. After Dr. Brown confided that she

had lost her perspective and could not read others, Director

Cicotti talked to Dr. Brown about how she could regain that

perspective and offered to intervene when necessary to assist

Dr. Brown. Dr. Brown then talked about how difficult it was for

her to return to work in August 2007 for the fall semester, and

while talking, she started crying. Director Cicotti tried to

encourage Dr. Brown by telling her that she was brave for coming

back. At the end of the meeting, Dr. Brown began to talk about

some things that had happened in the Department, but Director

Cicotti ended the conversation.

33. Due to an oversight, during the 2007 summer, the

Nursing Department did not load certain software that was

provided by Florida Hospital, one of the Department's community

partners. Because the software was not loaded, the mechanism

for charting was not available for SCC nursing students

scheduled to do clinicals at Florida Hospital in the 2007 fall

semester. Consequently, it appeared that those students would

not be able to do their clinicals that term.

34. The software issue did not come to light until the

2007 fall term, after Director Cicotti was hired and Dr. Brown

returned to work. Upon learning of the oversight, Dr. Brown, in

her capacity as clinical coordinator, sent an e-mail to the

community partner, Florida Hospital, in which she apologized

that the software had not been loaded during the summer when she

was on leave. 4

35. Director Cicotti believed that Dr. Brown's e-mail

apologizing for the software not being loaded put the Nursing

Department in a negative light. Director Cicotti's opinion is

that the Nursing Department should be united and that "if

something is not done, rather than saying it was not done, the

issue should be put in a positive light" (i.e., by saying what

could be done to make it better).

36. In or about September or October 2007, Director

Cicotti spoke to Dr. Brown about sending the e-mail to the

community partner apologizing for the Nursing Department's

oversight in not loading the software.

37. Due to the software issue discussed in paragraph 33,

Director Cicotti told the faculty that they "must arrange care"

so that students could do clinicals and not have to chart during

the time the charting mechanism was not available to them.

After Director Cicotti made that decision, Dr. Brown sent an

e-mail to the Nursing Department faculty stating that it went

against what the Department teaches--to send students into a

medical facility and not chart. 5

38. Director Cicotti determined that it was inappropriate

for Dr. Brown to send the e-mail to faculty that was in direct

opposition to her decision. 6

39. The job description for nursing faculty requires such

faculty to abide by the decisions of the Nursing Department.

According to Director Cicotti, Dr. Brown violated that provision

by, initially, failing to abide by her decision to facilitate

the students going to clinical and not charting. However,

Director Cicotti also acknowledged that Dr. Brown eventually did

abide by her (Cicotti's) decision as evidenced by Dr. Brown's

contacting the community partner and successfully resolving the

issue so that the nursing students were allowed to go to their

clinicals, as scheduled.

Academic Goals

40. SCC Procedure 2.1500 states that the faculty

evaluation process/procedure, which provides a basis for

personnel action, includes completion of the Faculty Goals and

Accomplishments Form (Faculty Goals Form). The Faculty Goals

Form lists five broad areas for which goals should be written:

(1) teaching; (2) availability to students; (3) curriculum

development and enhancement; (4) professional development; and

(5) college/community involvement. On the Faculty Goals Form

for the 2007-2008 academic year, Dr. Brown listed three goals

each under the areas of "teaching," "availability to students,"

"professional development," and "college/community involvement."

Dr. Brown listed two goals under the area, "curriculum

development and enhancement."

41. On or about October 4, 2007, Director Cicotti met with

Dr. Brown to review her (Brown's) goals for the 2007-2008

academic year. Director Cicotti believed that three of

Dr. Brown's 14 goals were negative.

42. Under "professional development," the goal viewed as

negative by Director Cicotti was "[c]ontinue to request

participation in a national conference funded by SCC until one

is approved." Director Cicotti believed this was an

inappropriate goal in that she had supported Dr. Brown's request

to participate in the National League for Nursing (NLN) project

technology conference, which may have included attendance at a

national conference. 7

43. Under "community involvement," Director Cicotti

believed that Dr. Brown's following two goals were negative:

(1) "Rebuild the direct relationship with community agencies

that have been fragmented since my absence from the department

in summer 2007"; and (2) "Minimize my interaction with college

activities until I re-establish some level of trust and fully

overcome the effects of being victimized as a result of bringing

forth department practices." Director Cicotti believed the

former goal was negative because the use of the term

"fragmented" implied that in Dr. Brown's absence, the Nursing

Department had not continued positive on-going relationships

with community organizations. Director Cicotti believed that

the latter goal simply was not appropriate.

44. Director Cicotti discussed her concerns about the

"negative" goals with Dr. Brown and asked her to change them or

make them positive rather than negative goals. In asking or

suggesting that the goals be changed, Director Cicotti believed

that she was "interceding" to help Dr. Brown in accordance with

her promise at the meeting discussed in paragraph 32. In

response to Director Cicotti's suggestions, Dr. Brown did not

get angry, make inappropriate comments or otherwise behave in an

unprofessional manner. However, she stated that she did not

want to change her goals.

45. Director Cicotti met with Dean Kersenbrock to discuss

her concerns about Dr. Brown's "negative" goals and her

unwillingness to change them. Dean Kersenbrock decided that the

goals should remain as written.

46. On October 5, 2007, Dr. Brown sent an e-mail to Dean

Kersenbrock, after learning that three Nursing Department

faculty members had attended conferences earlier that month or

late September 2007. The e-mail accurately stated that in

April 2007, Dr. Brown requested approval to attend an NLN

conference, but Dean Kersenbrock denied the request, citing SCC

budget issues as the reason for the denial. Dr. Brown's e-mail

noted that while Dean Kersenbrock denied her (Browns's) April

2007 request to attend the NLN conference, a newly hired faculty

member in the Nursing Department had been approved and had

recently attended that "very same conference." Dr. Brown's e-

mail also expressed concern that Dean Kersenbrock initially told

her (in May 2007) that the request was denied because of budget

issues, but, then, later told her (in August 2007) that the

denial was because she (Brown) did not have "good communication

and interactions with the Nursing Department faculty."

47. On October 9, 2007, Dean Kersenbrock forwarded

Dr. Brown's October 5, 2007, e-mail to Director Cicotti and

Ms. Salvano.

48. On October 19, 2007, Dr. Brown sent another e-mail to

Dean Kersenbrock. The e-mail stated that she (Brown) had

received a second invitation to participate in the NLN

ambassador program, which was associated with the conference,

referenced in her October 5, 2007, e-mail, but was declining

that invitation. Dr. Brown sent a copy of the October 19, 2007,

e-mail to SCC President McGee. 8

49. In October 2007, after learning about the two e-mails

discussed in paragraphs 46 and 48, Director Cicotti told

Dr. Brown that she (Cicotti) should be copied on any e-mails

concerning "departmental functions." Dr. Brown then explained

that because the issue discussed in the e-mails had occurred

prior to Director Cicotti's being employed at SCC, she thought

it was not necessary for Director Cicotti to be copied on the

e-mails. Director Cicotti clarified her concerns and told

Dr. Brown that she needed to be copied on such e-mails so that

she (Cicotti) would know about those issues. There is no

indication that Dr. Brown responded or behaved inappropriately

or unprofessionally during this interaction.

50. During the meeting discussed in paragraph 49, Director

Cicotti asked Dr. Brown how she felt she was doing with her

demeanor. Dr. Brown stated that she was always professional.

Dr. Brown then talked about her anger over things that had

occurred in the Department over the past few years; her feelings

that she was "walking on eggshells" in the Department; and the

difficulty she was having working in the Department. Director

Cicotti told Dr. Brown that she was the only person who could

decide how she was going to react in various situations and that

if her reaction was anger, she needed to make "some

adjustments." Throughout this exchange, Dr. Brown was calm,

listened, and did not raise her voice.

51. A few minutes after leaving the above-referenced

meeting, Dr. Brown came back to Director's Cicotti's office to

return the ten-year service pin which had been placed in her

office. Dr. Brown curtly stated that she was returning the pin

because "longevity doesn't seem to be valued around here." She

then handed the envelope containing the service pin to Director

Cicotti. During this incident, Dr. Brown's voice got louder and

she appeared to be angry. Director Cicotti reminded Dr. Brown

of the conversation that they had a few minutes ago about anger.

52. In late October 2007, Director Cicotti learned that

Dr. Brown had volunteered to mentor a new faculty member two

hours a week. Director Cicotti did not believe this was an

appropriate arrangement, and subsequently, met with Dr. Brown to

discuss the mentorship. Dr. Brown explained that the mentorship

was an "informal" mentorship and not a formal mentorship under

the Department's grant program. Nonetheless, Director Cicotti,

who viewed spending two hours a week with someone as a formal

mentorship, thanked Dr. Brown for volunteering, but told her

that mentoring decisions should be made by the Department

director. Dr. Brown did not challenge Director Cicotti's

decision, nor did she make any inappropriate comments or express

anger when told that she could not serve as a mentor.

Beginning Probationary Period--November 2007

53. At the end of October 2007, based on her two months of

interacting with and observing Dr. Brown, Director Cicotti had

concerns about Dr. Brown's professionalism in the Department and

"resistance to [Cicotti's] coaching and counseling." With

regard to the effect of the coaching/counseling, Director

Cicotti had mixed feelings. Director Cicotti found that at

times, Dr. Brown seemed to understand her inappropriate conduct

and would apologize, listen, and interact appropriately with

Director Cicotti. However, Director Cicotti believed there were

other times that Dr. Brown resisted coaching suggestions.

Director Cicotti cited only one example of what she believed was

Dr. Brown's resisting or refusing to follow a suggestion made in

a coaching session--her decision to not change her three

academic goals, viewed by Director Cicotti to be negative goals. 9

54. In late October or early November 2007, Cicotti

recommended to Dean Kersenbrock that Dr. Brown be relieved of

her duties as clinical coordinator and placed on probation. 10

Dean Kersenbrock concurred with the recommendation.

55. On November 6, 2007, Dr. Brown was placed on probation

for "inappropriate behavior and unprofessional communication

skills" by the SCC administration. The probationary period was

for the remainder of Dr. Brown's 2007-2008 contract period,

which ended June 17, 2008.

56. Dean Kersenbrock and Director Cicotti met with

Dr. Brown and gave her the probation letter on November 6, 2007.

The probation letters signed by Dean Kersenbrock, stated in

pertinent part:

This letter is to provide written notice to

you of my concerns regarding your behavior

and my recommendations for corrective

action.

* * *

Since returning to campus in late August

[2007], you have had at least five

counseling sessions with the Director of

Nursing. During these sessions, Director

Cicotti has spoken with you about your

inappropriate behavior and unprofessional

communication skills. I would point out to

you that SCC Policy 2.200, Code of Ethics

for Faculty, states that "Faculty shall

respect the rights of others."

In addition, the job description for

Professor, Nursing refers several times to

the required collaboration with other

faculty and staff: "Works well with other

faculty to . . .," "Works with staff

in. . .," and Collaborates with . . . ."

Specifically, item 7 under Essential

Functions states: "Contributes to a

collegial and collaborative work

environment."

It is clear that a discrepancy continues to

exist between the standards demanded by this

institution and what you deem appropriate,

collegial, and professional behavior. And,

it is regrettable that our many efforts to

counsel and assist you have been futile. At

this point, I feel compelled to recommend

that, effective immediately, you begin

disciplinary probation that will continue

for the remainder of your 2007-2008 contract

period. Your continued employment will be

subject to satisfactory work performance

(see attached job description) [11] and

adherence to the following [corrective

actions]. . . .

57. The probation letter did not reference specific

incidents which were deemed to have constituted the alleged

"inappropriate behavior" and "unprofessional communication

skills."

58. The probation letter listed the following corrective

actions/expectations to which Dr. Brown should adhere:

a. Contact The Allen Group (TAG), SCC's

employee assistance plan (EAP) provider

by 5:00 p.m. on November 15, 2007.

Schedule an appointment with an EAP

representative. Attend and actively

engage in any counseling and treatment

deemed necessary by the EAP counselor.

Authorize the College to (1) monitor

attendance; (2) receive intermittent

progress reports from EAP staff; and

(3) engage in further conversations with

EAP counselors should additional

information be required.

b. Carry out teaching responsibilities in a

professional manner that fosters

collegiality in promoting student

learning and success.

c. Maintain appropriate professional

behavior at all times in interactions

with faculty, staff, students and public.

That is, not be confrontational, not

raise voice to others, not engage in

behaviors that could be construed as

fighting, threatening or intimidating

toward others.

d. Take responsibility for your actions.

e. Represent Department and SCC in positive

and professional manner at all times.

f. Respond to suggestions and feedback in a

professional manner.

g. Treat others with respect.

h. Consistently demonstrate professional and

appropriate behaviors for duration of

employment at SCC.

59. The probation letter notified Dr. Brown that her

"failure to achieve [the] expectations and maintain them may

result in further disciplinary action up to and including

termination of [her] employment."

60. The probation letter advised Dr. Brown that at the end

of the current term, or about December 2007, she would resume a

full-time teaching faculty load and be relieved of clinical

scheduling responsibilities, i.e., her job as clinical

coordinator. However, the letter did not provide any

information or details about what Dr. Brown's full-time teaching

load would include.

Teaching Assignment for 2008 Spring Semester

61. On November 6, 2007, the day Dr. Brown was placed on

probation, Director Cicotti gave Dr. Brown several options for

her teaching assignments for the term beginning in January 2008.

Director Cicotti gave Dr. Brown until November 9, 2007, to

provide her choice, but, subsequently, consented to extend the

time to November 15, 2007.

62. Many of the course options preferences initially

offered were unacceptable because of limitations in Dr. Brown's

vision.

63. Dr. Brown submitted a doctor's statement indicating

that due to the limitations of her vision, she should not teach

night classes or labs involving administration of medicine.

Thus, any such courses were not viable options for Dr. Brown.

64. On November 14, 2007, Dr. Brown sent an e-mail to

Director Cicotti, indicating the following two preferences:

(1) that she be allowed to continue to serve as clinical

coordinator through the end of the 2007-2008 academic year; or

(2) that she facilitate the on-line obstetrics/pediatrics

(OB/PED) transition course and the Basic Medical Surgery

(Med Surg) course. 12 The second preference provided ten percent

of the 15 contract hours needed for a full load.

65. Dr. Brown explained in the November 14, 2007, e-mail

that she did not know "the solution" or additional course or

assignment she could include to give her the additional five

hours she needed to have a full load. Dr. Brown's submission of

two five-hour courses, instead of a course assignment preference

that totaled 15 contract hours, does not constitute a failure on

her part to comply with Director Cicotti's directive.

66. In or about late November 2007, Director Cicotti

approved Dr. Brown's second preference, which required her to

facilitate/teach the on-line OB/PED course and the Med Surg

course, but added the lab and the simulation clinical for the

Med Surg course. With the addition of the lab and the

simulation clinical, Dr. Brown had a full course load for the

term beginning January 2008.

67. Dr. Brown was not resistant to teaching classes.

However, Dr. Brown was concerned that she may not have enough

time to prepare the Med Surg course and to develop the OB/PED

on-line course by January 2008. 13 To address Dr. Brown's

concerns, Director Cicotti told Dr. Brown that she would tell

Patty Yorty, the coordinator and co-teacher in Med Surg, to

arrange the course so that Dr. Brown would not lecture at the

beginning of the course, but would have a month or until early

February 2008, to prepare her lectures. No evidence was

presented that Director Cicotti ever discussed this with

Ms. Yorty.

68. Consistent with her understanding, Dr. Brown and

Ms. Yorty, the coordinator and co-teacher in the Med Surg

course, agreed that Dr. Brown would prepare and give some

lectures and would do all labs and the simulation clinical

associated with the course. Ms. Yorty, who has been a faculty

member at SCC for 22 years, testified credibly that under the

new curriculum, co-teachers/coordinators were given the

flexibility to determine how the teaching assignments would be

divided. The credible testimony of Ms. Yorty was that, prior to

Dr. Brown being out on medical leave (mid-February through mid-

April 2008), she (Dr. Brown) did "some" lectures, all labs, and

the simulation clinical for the Med Surg course pursuant to

their agreement.

69. On or about January 28, 2008, Director Cicotti was

advised that Dr. Brown was not teaching, i.e., lecturing in the

Med Surg course. 14 Thereafter, Director Cicotti sent an e-mail

to Dr. Brown stating that on November 28, 2007, they had

discussed Dr. Brown's assignments for Term II 2007-2008. The

e-mail noted that during the discussion, Dr. Brown was told

that, with respect to the Med Surg course, she was responsible

for "1/2 of the classroom component, be[ing] present for all

course labs and participat[ing] in the course's clinical

simulation." Director Cicotti directed Dr. Brown to revise her

load to reflect the responsibilities described in the e-mail and

to send the revision to her by February 1, 2008.

70. In an e-mail dated January 30, 2008, Dr. Brown

disagreed with Director Cicotti's statement that she had given a

directive for Dr. Brown to teach 50 percent of the Med Surg

course.

71. On January 31, 2008, Dr. Brown met with Director

Cicotti's about the Med Surg course and insisted that Director

Cicotti never told her (Brown) that she was required to give 50

percent of the lectures in that course. While expressing her

disagreement, Dr. Brown, appeared to be agitated and angry, was

shaking, speaking very loudly, and standing over Director

Cicotti. Director Cicotti testified that during this meeting,

she was concerned that Dr. Brown might hit her, although she

admitted that Dr. Brown had never been violent or physically

aggressive. Dr. Brown eventually calmed down, sat and

apologized to Director Cicotti.

72. Clearly, there was a misunderstanding between Director

Cicotti and Dr. Brown as to what her exact duties were to be in

the Med Surg course. The failure to provide any written

documentation to Dr. Brown explicitly describing her (Brown's)

duties in the Med Surg course contributed significantly to this

misunderstanding.

73. Notwithstanding Dr. Brown's and Director Cicotti's

disagreement as to what Dr. Brown's duties were in the Med Surg

course, Dr. Brown timely complied with Director Cicotti's

request and readjusted her schedule to reflect that she was

presenting 50 percent of the lectures in that course. 15

74. In late January 2008, soon after Director Cicotti

directed that the teaching schedule for the Med Surg course had

to be changed, Dr. Brown commented to Ms. Yorty, "In someone's

infinite wisdom, I'm going to be spending more time in your

course (Med Surg which Yorty coordinated) than in mine (OB/PED

being developed and coordinated by Brown)." The following day,

Director Cicotti approached Dr. Brown and reported that Ms.

Yorty had told Director Cicotti that Dr. Brown had made a

derogatory comment about her (Cicotti).

75. Director Cicotti believed that Dr. Brown's statement

was a negative comment about her, as director, and about the

Nursing Department. Director Cicotti determined that the

comment was also unprofessional. Despite Director Cicotti's

opinion about Dr. Brown's comment, when considered in context,

the statement did not violate any directive given by Director

Cicotti.

76. On or about January 29, 2008, Director Cicotti learned

that Dr. Brown was not going to monitor an exam in the Med Surg

course the following day. Instead, Dr. Brown was doing a

clinical with the adjuncts for the OB/PED on-line course that

she was teaching. Dr. Brown had volunteered to assist adjuncts

in the clinical for the on-line OB/PED course because that

clinical was very important, and the adjuncts were not as

"seasoned" as pediatric faculty teaching the course. E-mails

exchanged between Dr. Brown and Director Cicotti indicated that

Director Cicotti was aware that Dr. Brown had been assisting

adjuncts that semester and had expressed no opposition.

77. Given Director Cicotti's concern about her not

monitoring the exam for the Med Surg course on January 30, 2008,

Dr. Brown asked Director Cicotti if she could attend the

clinical to assist the adjuncts on January 30, 2008. Since

there would be one monitor in the Med Surg exam. Director

Cicotti denied Dr. Brown's request and told her that because

there was a conflict between the OB/PED clinical and the Med

Surg exam, Dr. Brown needed to be in the latter class. However,

she told Dr. Brown that she could attend the OB/PED clinical on

the days the Med Surg class was not meeting (or an exam was not

being given). Director Cicotti also advised Dr. Brown to revise

her schedule to include the days she was in the OB/PED clinical.

There is no evidence that Dr. Brown failed to comply with either

of the foregoing directives.

November 2007--Interaction With Community Partner

78. In November 2007, a few days after Dr. Brown was

placed on probation, Angie Laxton, a representative of Orlando

Health, one of the Nursing Department's community partners, was

visiting the Department. Dr. Brown, who appeared to be upset,

told Ms. Laxton that she had been removed as clinical

coordinator, that she was on probation and did not know why, and

that she was being mistreated by the Department.

79. Having only recently been placed on probation,

Dr. Brown was understandably upset. Nevertheless, she used poor

judgment is confiding in Ms. Laxton, who was a community

partner, not a friend.

80. Ms. Laxton went to Director Cicotti's office and

reported the comments that Dr. Brown had made to her.

81. Director Cicotti first talked to Dr. Brown about her

lack of professionalism and making negative comments about the

Nursing Department to Ms. Laxton on February 4, 2008. Dr. Brown

never denied that she had talked to Ms. Laxton about her

probationary status and related matters.

Conduct in Nursing Department--Week of November 12, 2007

82. In November 2007, after being placed on probation,

Director Cicotti observed Dr. Brown in the hall engaged in

conduct that she perceived as unprofessional or inappropriate.

In the first instance, Director Cicotti testified that Dr. Brown

was "muttering" while in the hall of the Nursing Department

building. This incident happened when faculty members were

packing for the move to the new campus. There was no evidence

that the conduct was disruptive or that anyone except, Director

Cicotti observed this incident.

83. Director Cicotti witnessed a second incident which

also occurred in November 2007, when the faculty was packing.

According to Director Cicotti, Dr. Brown was walking down the

hall of the Nursing Department building and made the comment, in

a loud voice, that contrary to popular belief, she had not been

fired but was moving to the new campus. It is unclear who, if

anyone, Dr. Brown was talking to at the time. Moreover, there

is no evidence that anyone other than Director Cicotti heard the

comment or that the comment was disruptive.

December 2007--Interaction With Colleague

84. In December 2007, Lois Hopkins, a faculty member, and

Dr. Brown were in a planning meeting to schedule labs for their

respective classes for the term beginning in January 2008.

Dr. Brown suggested that their respective classes go to the lab

at the same time. On the other hand, Ms. Hopkins recommended

that the two classes be scheduled for different times so that

the students would have greater opportunities for "hands-on"

experiences. After Ms. Hopkins made her recommendation and gave

her rationale for that recommendation, Dr. Brown agreed to the

lab schedule recommended by Ms. Hopkins. Nonetheless,

Ms. Hopkins's perception, based on the tone of Dr. Brown's

voice, was that Dr. Brown was angry.

85. In December 2007, at the end of a faculty meeting,

Dr. Brown stated she was on probation and added that if anyone

had questions, they should talk to her. Dr. Brown made these

comments in response to the rumors in the Nursing Department

concerning her probationary status. Except for Director

Cicotti, there is no evidence that any one heard Dr. Brown make

that statement. Ms. Yorty, the only faculty member to testify

on this issue, stated that she did not hear Dr. Brown make that

comment.

86. Later, at an unidentified time, Director Cicotti

talked to Dr. Brown about the comment she made at the

December 2007 faculty meeting. Director Cicotti told Dr. Brown

that the comment was unacceptable. She also stated her opinion

that the comment undermined Director Cicotti's authority as the

disciplinary process had been held confidential.

87. Dr. Brown did not report for work on December 10,

2007, due to a scheduled medical appointment. However, two

weeks before the scheduled medical procedure, Dr. Brown filed

the appropriate paperwork with Director Cicotti's secretary in

accordance with Department procedures. Also, prior to

December 10, 2007, Dr. Brown told Director Cicotti that she

would be out for the procedure on Monday, December 10, 2007.

Probation Status Assessment and Written Warning--February 2008

88. On February 4, 2008, Director Cicotti issued a memo to

Dr. Brown, captioned "Probation Status and Written Warning."

The memo stated that the purpose of the memo was to give

Dr. Brown feedback regarding her progress during the time she

had been on probation. The memo purported to assess Dr. Brown's

performance and/or compliance in four areas: (1) employee

assistance plan (EAP); (2) teaching assignments;

(3) responsibility; and (4) professionalism.

89. The Probation Status/Written Warning memo noted that

Dr. Brown had timely complied with the directive to participate

and complete a program provided through the EAP. That program

consisted of two counseling sessions on two days.

90. In regard to "teaching assignments," the Probation

Status/Written Warning memo stated in pertinent part:

Teaching Assignments. On November 6, I

asked you to notify me by November 9, of

your preferences for teaching in Term II.

You asked me to extend the deadline until

November 15. You did not communicate your

preferences to me by November 15. On

November 16, I contacted you about your

preferences in teaching assignments. You

told me that none were acceptable; I

reviewed the possible assignments with you

again. Still, you would not articulate your

preferences. I met with you on November 19,

to tell you which courses were assigned to

you. You continued to be resistant, citing

a lack of time to prepare teaching classes.

After several more discussions, your

assignments were finalized on December 5.

This entire process was more difficult than

it needed to be and took longer than it

should have.

During the week of January 28, I learned

that, contrary our previous agreement, you

were not teaching in the classroom in NUR

1210C. In addition, you had decided that

you would not be present for the course

exams because you intended to go to clinical

to support adjunct faculty. I reminded you

that course needs supersede support needs

and requested that you adjust your clinical

time accordingly.

91. The Probation Status/Written Warning memo assesses

Dr. Brown's progress in the area of "responsibility" as follows:

Responsibility. You were advised to take

responsibility for your actions. On a

couple of occasions since the meeting on

November 6, you have denied making remarks

that others had reported to me (incident

with clinical partners; incident involving a

co-worker.) I reminded you on November 28

that, as you were advised on November 6, you

must take responsibility for your actions

and correct your perception that you have

not caused or contributed to any of the

interpersonal or department problems in

which you have been involved.

92. Finally, in the area of "professionalism," the

Probation Status/Written Warning memo states in pertinent part

the following:

Professionalism. The other problems

discussed with you on November 6 were your

unacceptable behavior interactions with

faculty, staff, students, and the public;

your inconsiderate or disrespectful

treatment of others; your inappropriate

responses to feedback and suggestions; your

lack of collegiality; and your

confrontational and intimidating

communications and behaviors.

* * *

Since being placed on disciplinary probation

on November 6, you have continued to make

poor choices with regard to your conduct and

the level of professionalism that is

required of you. On several occasions, you

have exhibited a lack of self-control and a

flagrant disregard for your colleagues, your

workplace and our educational environment.

You have inappropriately discussed your

personal situation and department business

with our clinical partners. You have made

negative comments about me and the

leadership of the department. You have

embarrassed your colleagues by making

inappropriate statements during a faculty

meeting. And, on December 10, you did not

report for work nor did you call in to

report your absence.

93. The Probation Status/Written Warning memo advised

Dr. Brown that her failure to adhere to the terms of her

probation jeopardized her prospects for continued employment at

SCC. The memo noted that Dr. Brown had not corrected the

deficiencies that were brought to her attention and had failed

to maintain the levels of work performance and professionalism

required by the college. Finally, the memo notified Dr. Brown

that this was her final warning and notice to correct and that

she would be re-evaluated within the next 30 days.

94. With one exception, the factual allegations set forth

in the Probation Status/Written Warning memo are not supported

by the evidence presented in this case. The evidence

established that Dr. Brown inappropriately discussed her

personal situation and Department business with only one

clinical (community) partner after being placed on probation.

However, the more persuasive evidence showed that Dr. Brown

never denied making those inappropriate comments.

95. The remaining allegations in the Probation Status

Memo/Written Warning memo, relative to Dr. Brown’s teaching

assignments and lack of professionalism, are not supported by

the evidence. In addition to the foregoing, the memo alleged

that Dr. Brown: (1) exhibited lack of self-control and flagrant

disregard for her colleagues, workplace, and educational

environment; (2) made negative comments about Director Cicotti

and the leadership of the Department; (3) embarrassed colleagues

by making inappropriate comments in a (December 2007) faculty

meeting; and (4) did not report to work on December 10, 2007,

and did not call in to report her absence. The forgoing factual

allegations are not supported by the evidence and, in some

instances, are contrary to the evidence.

96. As discussed below, Dr. Brown was on authorized

medical leave from the mid-February through April 13, 2008, and

no re-evaluation was ever done.

February 2008--Simulation Laboratory Incident

97. On February 13 or 14, 2008, there was a program at the

new SCC campus in Altamonte Springs designed to introduce

nursing students to the new simulation lab. Maureen Tremmel, a

faculty member, was in charge of the program.

98. Msemmel got to the lab at 7:00 a.m., two hours

before the students were to arrive, in order to set things up.

While doing so, Msemmel encountered "quite a few snafus,"

some of which she attributed to being in a new building. 16

Msemmel acknowledged that she was "a little stressed" as she

was preparing for the first simulation activity in the new lab,

after several weeks of pre-planning.

99. About 8:00 a.m., several faculty members, including

Dr. Brown, began coming into the simulation lab. Dr. Brown went

to Msemmel and volunteered to help. Msemmel asked

Dr. Brown to make extra copies for one of the simulation

stations and to retrieve the computer "clickers," which were

locked in a storage room in a secretary's office. Dr. Brown

made the copies, but was unable to get the "clickers" because

they were in a locked office.

100. Before students arrived, Msemmel asked the

faculty to select the station they wanted to be in charge of

during the simulation activity. Ms. Yorty selected one station

and Msemmel selected another one.

101. After Dr. Brown returned to the simulation lab,

Msemmel asked Dr. Brown which of the two remaining stations

she wanted to work at during simulation activity. Dr. Brown

told Msemmel that it didn't really matter. Msemmel was

bothered by that response because she misinterpreted Dr. Brown's

comment to mean that she (Brown) did not care and was not really

interested in what she would be doing. Instead, Dr. Brown

actually meant that she was willing to work at either one of the

two stations.

102. Msemmel asked Dr. Brown a second time to choose

either the diabetic station or the IV station and told her that

she (Tremmel) really needed her to choose. Dr. Brown said she

did not want to choose because "choosing gets me in trouble."

Msemmel then became a "little annoyed" and showed that she

was annoyed. At that point, Ms. Yorty and Dr. Marge Thompson,

(Dr. Thompson), director of the lab, got involved and Ms. Yorty

told Dr. Brown to do the diabetic station.

103. Dr. Brown willingly accepted that assignment. There

were five or six "lab people" in the simulation lab when the

foregoing exchange occurred. However, the evidence established

that the only persons who heard the interaction between Dr.

Brown and Msemmel were Patty Yorty and Dr. Thompson.

104. Ms. Yorty, Dr. Thompson, and Dr. Brown went into the

room where the diabetic simulation patient was and reviewed the

orientation for that station. Meanwhile, Msemmel left the

simulation lab and went to the Director Cicotti's office to

report the simulation lab incident that had just occurred.

Director Cicotti was not in her office, so Msemmel told

Lydia Gaud, a program manager, about the incident in the

simulation lab.

105. After reporting the incident, Msemmel returned to

the simulation lab. Msemmel acknowledged that she was still

angry when she returned to the lab, but decided that she wanted

to "lay the matter to rest" before the simulation program

started. Msemmel went into the room where the diabetic

station was located and approached Dr. Brown, who was alone in

the room. Msemmel started yelling at Dr. Brown and telling

her that she was being inflexible. She told Dr. Brown, "All you

needed to do was choose a station and I just needed you to be a

team player." Dr. Brown responded that she was being a team

player by saying that she would take any station. As Dr. Brown

walked away, Msemmel told her, "You get back here, I'm not

done talking to you yet." There is no evidence that anyone else

was in the room during the foregoing exchange or heard the

exchange between Msemmel and Dr. Brown.

106. The day of the incident and at Msemmel's request,

Director Cicotti met with Dr. Brown and Msemmel to discuss

the incident in the simulation lab. Ms. Gaud also attended the

meeting. Both Dr. Brown and Msemmel gave their version of

what happened in the lab. 17

107. Director Cicotti concluded that Dr. Brown and

Msemmel exhibited inappropriate unprofessional behaviors in

the situation.

108. Both Msammel and Dr. Brown apologized for the

simulation lab incident. 18

109. Dr. Brown's conduct in the simulation lab incident

consisted of not choosing a station. Dr. Brown did not make a

decision, because she was uncomfortable doing so and did not

know "where it would lead." Having been given a written warning

only a few days earlier, Dr. Brown believed that rather than

making a decision, it was in her best interest to do what was

assigned.

110. The mere failure of Dr. Brown to choose a station

because she was uncomfortable, was not unprofessional.

Moreover, it is unreasonable to attribute wrong-doing to

Dr. Brown as a result of the inappropriate and/or unprofessional

conduct of another faculty member simply because she (Brown) was

the person involved in the verbal exchange.

111. During the simulation incidents, Dr. Brown did not

engage in any unprofessional conduct or violate any directive.

112. On February 13 or 14, 2008, Ms. Salvano came to the

Nursing Department to discuss the incident in the simulation

lab. Dr. Brown wanted a faculty senate representative present

at the meeting. Since no one was available, Dr. Brown was asked

to go home for that day. As she was leaving the building,

Dr. Brown had a medical issue, which resulted in her collapsing

in or near the elevator. After leaving that day, Dr. Brown did

not return to work until April 2008.

Pre-Termination Proceeding-Mid February through May 2008

113. For the period between mid-February 2008, and to

April 13, 2008, Dr. Brown was on authorized medical leave.

114. Dr. Brown's physician cleared her to return to work

on April 14, 2008. When Dr. Brown arrived at work on April 14,

2008, she was advised to go to see Ms. Salvano, whose office was

at the Sanford/Lake Mary campus. Dr. Brown went to

Dr. Salvano's office as she had been directed. During that

meeting, Ms. Salvano advised Dr. Brown that she was being

relieved of her duties due to insubordination and willful

neglect of duty.

115. Sometime between February 13 or 14 and April 13,

2008, Director Cicotti, Dean Kersenbrock and Vice-President

Hawkins, after reviewing the matters related to Dr. Brown's

probation and her behavior during that time, agreed that

Dr. Brown's employment should be terminated. In turn,

Vice-President Hawkins recommended to SCC President McGee that

Dr. Brown be terminated.

116. By letter dated April 15, 2008, Dr. Brown was

notified that President McGee was recommending to the Board that

she be dismissed for "gross insubordination and willful neglect

of duty."

117. On May 6, 2008, the Board of Trustees of SCC voted to

terminate the continuing contract for employment of Dr. Brown.

118. On May 7, 2008, the president of SCC notified

Dr. Brown that her continuing contract for employment was

terminated, effective June 17, 2008.

119. Prior to recommending Respondent's termination,

SCC administrators employed the college's progressive discipline

procedures which includes five distinct steps--with each step

being more serious. These steps are: 1) counseling; 2) verbal

reprimand; 3) written warning; (4) suspension/probation; and

(5) dismissal/termination. Pursuant to the policy, SCC

administrators are permitted to begin disciplinary proceedings

at any step, depending on the severity of the offense.

120. Here, Director Cicotti started her discipline of

Respondent at the fourth step, probation. Based on alleged

violations committed thereafter, Director Cicotti imposed the

third step in the progressive discipline process, a written

warning. The written warning was followed by recommendation

that Dr. Brown's employment be terminated.

121. There is no evidence of any prior disciplinary action

against Dr. Brown during her tenure at SCC.

CONCLUSIONS OF LAW

122. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

proceeding pursuant to Subsection 120.57, Florida Statutes

(2008). See Fla. Admin. Code R. 6A-14.0411(5)(a).

123. Pursuant to Florida Administrative Code Rule

6A-14.0411(5)(a), upon recommendation of the SCC president, the

Board is authorized to dismiss an employee under continuing

contract or return the employee to an annual contract upon the

recommendation by the president.

124. The Board is authorized to adopt rules, procedures

and policies, consistent with law and rules of the State Board

of Education, related to, among other things, its mission and

responsibilities as set forth Section 1001.65, Florida Statutes,

and its personnel. See § 1001.64(4)(b), Fla. Stat (2007). 19

125. The president of SCC is required to establish and

implement policies and procedures to "recruit, appoint,

transfer, promote, compensate, evaluate, reward, demote,

discipline and remove personnel." See § 1001.65(3), Fla. Stat.

Such policies and procedures must be within the law and rules of

the State Board of Education and in accordance with the rules

and policies approved by the Board. Id.

126. Pursuant to its rulemaking authority, the Board of

Trustees has adopted the policies addressing among other issues,

employee discipline and the hearing rights associated therewith.

See SCC Policies 2.011 and 2.0500.

127. SCC Policy 2.1900, titled "Employee Discipline," sets

forth "a non-exclusive list" of types of employee behavior which

could give rise to disciplinary action, up to and including

suspension or dismissal. Among the behaviors listed in the

policy are "immorality, misconduct, incompetency,

insubordination, willful neglect of duty, [and] conviction of

any crime involving moral turpitude . . . ."

128. SCC Policy 2.1900 provides that the purpose of that

"Employee Discipline" policy is to identify inappropriate

behavior and provide a progressive system of corrective action

designed to encourage improvement. That policy, which

identifies, defines, and prescribes the five progressive steps

that may be utilized, states:

The following progressive steps may be

employed by the College in its efforts to

correct inappropriate employee behavior.

The College at its discretion, and in

consideration of the severity of the

offense, may begin the progression at any

step.

Counseling:

Counseling is an offer of assistance to

correct behavior and/or warning that

disciplinary action could follow if

improvement is not noted. A non-detailed

written record of the counseling session may

be placed in the limited access section of

the employee's personnel file.

Verbal Reprimand:

A verbal reprimand is a formal warning. A

non-detailed memorandum acknowledging that a

verbal warning was issued is placed in the

limited access section of the employee's

personnel file.

Written Warning:

A written warning is a formal notice that

inappropriate behavior, or a violation of a

rule, policy, or procedure has occurred. It

outlines the specific steps which must be

taken to correct the problem. The warning

usually includes notice that another offense

or failure to improve could result in more

serious disciplinary action. This formal

warning is placed in the limited access

section of the employee's personnel file.

Suspension/Probation:

An employee may be placed on probation or

suspended from employment if previous

attempts to correct inappropriate behavior

are ineffective. A suspension may be with

or without pay and will be for a specified

period of time. An employee may be put on

probation as a condition of returning to

work after suspension, or as a condition of

continued employment without suspension.

Probationary periods will be for a specified

time and will specify the corrective action

required of the employee to successfully

complete the probation. A record of the

suspension or probation is placed in the

limited access section of the employee's

personnel file.

Dismissal/Termination:

Contract employees may be terminated or

dismissed in accordance with this procedure,

Florida Statutes and the Rules of the State

Board of Education. . . .

129. The manner in which Director Cicotti implemented the

progressive discipline policy does not violate SCC Policy

2.1900.

130. The Board terminated Respondent's continuing contract

for gross insubordination and willful neglect of duty, effective

June 17, 2008.

131. The offenses with which Respondent is charged, "gross

insubordination" and "willful neglect of duty" are not defined

in any statute or rule applicable to community colleges in

Florida or in any SCC policy. However, the definitions in

Florida Administrative Code Rule 6B-4.009, which relate to the

suspension and dismissal of instructional personnel by school

districts, are instructive.

132. Florida Administrative Code Rule 6B-4.009(4) defines

"gross insubordination" and "willful neglect of duty" as

follows:

Gross insubordination or willful neglect of

duties is defined as a constant or

continuing intentional refusal to obey a

direct order, reasonable in nature, and

given by and with the proper authority.

133. To prevail, SCC must demonstrate by a preponderance

of the evidence that each element of the charged offense which

may warrant termination of Respondent's continuing contract.

McNeil v. Pinellas County School Board , 678 So. 2d 476 (Fla. 2d

DCA 1996); and Dileo v. School Board of Dade County , 569 So. 2d

883 (Fla. 3d DCA 1990). SCC must also establish by a

preponderance of evidence the underlying factual allegations.

134. To meet its burden, SCC first must establish that a

direct order was given, that it was reasonable in nature and was

given by and with proper authority. Next, SCC must

demonstrate that Respondent refused to obey a direct order and

that her actions were "constant" and "continuing."

135. SCC has not met its burden.

136. The evidence established, and it is not disputed,

that the "direct orders" given were reasonable and given by

someone with authority to give such orders.

137. The second element necessary to prove "gross

insubordination" and "willful neglect of duty," has not been

established. The evidence failed to establish that Respondent

refused to obey any direct orders, and if she did so, that such

actions were "constant" and "continuing." To the contrary, the

evidence established that when given a direct order, Respondent

complied with such order.

138. The evidence does not establish that Respondent

committed the offenses of gross insubordination and willful

neglect of duty.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Board of Trustees of the Seminole

Community College enter a final order: (1) finding that

Respondent, Dr. Lorraine Brown, did not commit the offenses of

gross insubordination and willful neglect of duty; and

(2) reversing its decision to terminate her continuing

employment contract as a professor of nursing.

DONE AND ENTERED this 13th day of March, 2009, in

Tallahassee, Leon County, Florida.

S

CAROLYN S. HOLIFIELD

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 13th day of March, 2009.

ENDNOTES

1/ Subsections 760.11(1), (3) and (4), Florida Statutes, provide

that:

(1) Any person aggrieved by a violation

of ss. 760.01-760.10 may file a complaint

with the commission within 365 days of the

alleged violation, naming the employer,

employment agency, labor organization, or

joint labor-management committee, or, in

the case of an alleged violation of

s. 760.10(5), the person responsible for the

violation and describing the

violation. . . .

* * *

(3) Except as provided in subsection (2),

the commission shall investigate the

allegations in the complaint. Within 180

days of the filing of the complaint, the

commission shall determine if there is

reasonable cause to believe that

discriminatory practice has occurred in

violation of the Florida Civil Rights Act of

1992. When the commission determines

whether or not there is reasonable cause,

the commission by registered mail shall

promptly notify the aggrieved person and the

respondent of the reasonable cause

determination, the date of such

determination, and the options available

under this section.

(4) In the event that the commission

determines that there is reasonable cause to

believe that a discriminatory practice has

occurred in violation of the Florida Civil

Rights Act of 1992, the aggrieved person may

either:

(a) Bring a civil action against the

person named in the complaint in any court

of competent jurisdiction; or

(b) Request an administrative hearing

under ss. 120.569 and 120.57.

The election by the aggrieved person of

filing a civil action or requesting an

administrative hearing under this subsection

is the exclusive procedure available to the

aggrieved person pursuant to this act.

2/ Dean Kersenbrock reviewed issues related to Dr. Brown's

complaint that she was being treated unfairly as it related to

release time and approval for attending national conferences.

As a result of her review, Dean Kersenbrock concluded that

Dr. Brown was not treated unfairly in either of those areas.

3/ The interpersonal issues within the department were initially

raised by Dr. Brown, but other faculty members also had

complaints.

4/ This e-mail was not introduced into evidence so the wording

of the e-mail is not known. However, Dr. Brown does not dispute

sending an e-mail apologizing for the Nursing Department's

oversight.

5/ The e-mail was not introduced into evidence, so the exact

wording and substance of the e-mail and the faculty members to

whom it was sent, are not known.

6/ There is no indication that Cicotti discussed this with

Dr. Brown.

7/ On September 20, 2007, Dr. Brown asked Director Cicotti for

approval to participate in a technology project sponsored by the

National League for Nursing (NLN). Director Cicotti agreed to

support Dr. Brown's application to participate in the project.

The NLN actually selected candidates, but the college would have

to pay expenses for travel.

8/ Dr. Brown closed the e-mail by stating that she did not

intend to lie to the NLN about the reason the college chose not

to support their NLN program and had "no intention of lying

again-that is not in my nature." This comment appears to be

related to Dr. Brown's comment in the previous e-mail that she

had been told that her April 2007 request to attend an NLN

conference was denied for budget reasons but later found out

that a new department faculty member had been allowed to attend

that same conference.

9/ Despite Cicotti's view that this reflected Dr. Brown's

resistance to coaching/counseling, Dean Kersenbrock ultimately

decided that the goals could remain as written.

10/ Prior to Cicotti's recommending that Dr. Brown be placed on

probation, Dean Kersenbrock had raised the issue with Director

Cicotti.

11/ The job description was not included as an exhibit in this

proceeding.

12/ In her November 14, 2007, e-mail to Director Cicotti,

Dr. Brown indicted that she had discussed the scheduling issues

with Vice-President Hawkins, who had advised Brown to work

through these issues with Director Cicotti. Vice-President

Hawkins was copied on the e-mail.

13/ The Med Surg course was part of the Department's new

curriculum that included only "adult" surgery content.

Dr. Brown had previously taught the Med Surg course in the

former curriculum that covered "adult" and "pediatric" surgery

issues. She and Ms. Yorty had co-taught that course for many

years. In that course, Dr. Brown had taught the component

dealing with "pediatric" surgery. Ms. Yorty had taught the

"adult" surgery component.

14/ Director Cicotti had suggested that the course be organized

so that Dr. Brown would start teaching at the end of January or

early February 2008, rather than the beginning of Term II, in

order to give Dr. Brown additional time to prepare her lectures.

15/ Due to an inadvertent error, the lecture time was one hour

off. Director Cicotti requested that this be corrected. Due to

Dr. Brown's beginning an extensive medical leave two days later,

this error was not corrected. However, this became a non-issue

as Dr. Brown did not teach after mid-February 2008.

16/ For example, keys to some of the rooms could not be found,

the copy machine on the same floor as the simulation lab was not

working, and equipment had been moved to another location.

17/ Director Cicotti testified that she also collected witness

statements. However, no witness statements were introduced at

hearing and only one witness, Ms. Yorty testified that she

provided such a statement.

18/ Director Cicotti testified that she was concerned that Dr.

Brown, unlike Msemmel, accepted no responsibility for the

simulation lab incident and did not apologize. However, on

cross-examination, after reviewing her notes, Director Cicotti

recalled that Dr. Brown did apologize. Director Cicotti also

testified that Dr. Brown stated that she should have counted to

ten before responding to Msemmel’s questions.

19/ All statutory references are to Florida Statutes (2007),

unless otherwise noted.

COPIES FURNISHED :

Dr. Eric J. Smith

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

Sandra K. Ambrose, Esquire

Stenstrom, McIntosh, Colbert, Whigham,

Reischmann & Partlow, P.A.

1001 Heathrow Park Lane, Suite 4001

Lake Mary, Florida 32746

Larry H. Colleton, Esquire

The Colleton Law Firm, P.A.

Post Office Box 677459

Orlando, Florida 32867

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.