98-000199 Hillsborough Community College vs. Corrine Dismuke Status: Closed Recommended Order on Monday, July 13, 1998.

Summary: Community college employee implied a threat of violence against co-worker. Rule prohibited threats of violence. Recommended Order shows "good cause" to terminate employee.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HILLSBOROUGH COMMUNITY )

COLLEGE, )

)

Petitioner, )

)

vs. ) Case No. 98-0199

)

CORINE DISMUKE, )

)

Respondent, )

_______________________________)

RECOMMENDED ORDER

On May 12 through 13, 1998, a formal administrative hearing

was held in this case in Tampa, Florida, before J. Lawrence

Johnston, Administrative Law Judge, Division of Administrative

Hearings.

APPEARANCES

For Petitioner: Maria N. Sorolis, Esquire

Allen, Norton & Blue, P. A.

324 South Hyde Park Avenue, Suite 350

Tampa, Florida 33606

For Petitioner: Corine Dismuke, pro se

10312 Penny Tree Place

Tampa, Florida 33624

STATEMENT OF THE ISSUE

The issue in this case is whether the Petitioner,

Hillsborough Community College (the College), should terminate

the employment of the Respondent, Corine Dismuke ( Dismuke).

PRELIMINARY STATEMENT

On September 17, 1997, the College's Board of Trustees voted

to terminate the Respondent's employment and gave her notice of a

right to formal administrative proceedings under Chapter 120,

Florida Statutes (1997). Dismuke disputed the grounds for her

termination and requested formal proceedings.

The College referred the matter to the Division of

Administrative Hearings on November 17, 1997, but omitted

Dismuke's request for formal proceedings and other attachments to

the referral letter. Those materials were not supplied until

January 12, 1998.

At final hearing, the College called six witnesses

(including one by videotape) and had Petitioner's Exhibits 1

through 6 admitted in evidence (including the videotaped

testimony.) The Respondent testified in her own behalf, called

20 other witnesses, and had CD Exhibits 1 through 5 admitted in

evidence.

After presentation of the evidence, the College ordered the

preparation of a transcript of the final hearing and asked for

until June 12, 1998, to file proposed recommended orders. Both

parties filed proposed recommended orders.

FINDINGS OF FACT

1. The Respondent, Corine Dismuke ( Dismuke), was employed

at Hillsborough Community College (the College) continuously from

April 20, 1981. For eleven and a-half years, she worked in the

Financial Aid office and was a good and valued employee. By

1994, however, Dismuke's relationship with a new supervisor had

deteriorated, her morale was low, and she made her grievances

known to the College. The College's ultimate resolution of

Dismuke's grievances was to transfer Dismuke to the College's

Financial Services office in 1994.

2. For a time, Dismuke continued to experience difficulties

at work despite the change. She thought that her new colleagues

shunned and isolated her and that she was treated poorly and

unfairly by her new supervisor, the Director of Financial

Services, Barbara DeVries. Dismuke filed several grievances

complaining about these things during her first year and a-half

at Financial Services. Dismuke's supervisor thought Dismuke's

attitude improved during Dismuke's second year in the Financial

Services office. The evidence was clear that Dismuke was on good

terms with some (but not all) of her colleagues.

3. Dismuke's attitude changed when she began to get

indications in the spring of 1997 that her position would be

adversely affected if the College implemented the recommendations

contained in the report of a study undertaken by the firm of

Coopers and Lybrand on the College's personnel classification

systems and pay scales. Under the Coopers and Lybrand

recommendations, Dismuke's position would be reclassified, and

her salary would be frozen, so that Dismuke would not even get

cost-of-living adjustments, until her salary came in line with

the report's recommended salary for the new position.

Grounds for Termination and Termination Proceedings

4. On Monday, June 30, 1997, Dismuke entered her office

suite and told a co-worker, Pete Scaglione, with whom she had

always gotten along with well, that he had better consider

wearing a bullet-proof jacket because bullets could begin to fly

soon. This upset Scaglione greatly because he perceived the

comment as a direct threat to him. Scaglione assumed Dismuke's

anger had something to do with the Coopers and Lybrand

recommendations, which would have given Scaglione a modest salary

increase.

5. Scaglione went to another fellow employee, Beatriz

Maseda, who also was greatly concerned. Both Scaglione and

Maseda were concerned that Dismuke would act on her statement to

Scaglione, come to work with a gun, and start shooting. Maseda

advised Scaglione to report the incident to DeVries. Scaglione

was afraid that DeVries would not do anything and did not want to

report the incident. Maseda convinced Scaglione to report it.

They discussed a personnel rule requiring him to do so.

6. The College's Rule 6HX-10-1.017 provides:

Purpose:

The purpose of this administrative rule is to

establish college policy that prohibits

threats of violence by personnel, students,

visitors or any other individual while at

Hillsborough Community College.

Rule:

Threats to do bodily harm or property damage

by College personnel, students, visitors or

any other individual against another while at

Hillsborough Community College is totally

inappropriate. A threat of violence, either

verbal or written, expressed or implied, will

not, under any circumstances, be tolerated at

Hillsborough Community College. Any other

threat of a material and substantial

disruption to the operation of the College is

also prohibited. An employee making any

threat prohibited by this rule will be

disciplined in accordance with the

appropriate administrative procedure, up to

and including termination. A student making

any threat prohibited by this rule will be

disciplined in accordance with the

appropriate administrative procedure, up to

and including expulsion. Any other

individual making any threat prohibited by

this rule will be required to leave College

property immediately. Notification will be

made to the appropriate law enforcement

agency where appropriate. The failure of any

employee or student to report any threat

prohibited by this rule that is made by

students, employees, or any other person

against any person or the operation of the

College will also result in disciplinary

action.

7. It is stipulated that Dismuke received notice of Rule

6HX-10-1.017 as well as the College's other personnel rules.

8. When DeVries was told of the incident the next day, she

also was concerned that Dismuke would act on her statement to

Scaglione. DeVries notified her supervisor, the College's Vice-

President for Financial Affairs, Robert Wolf. Wolf was very

concerned about DeVries' report to him and insisted on an

immediate meeting with DeVries, Maseda, and Scaglione. Wolf

ascertained that Dismuke actually made the comments in anger and

that Scaglione and Maseda were genuinely afraid of Dismuke. Wolf

also became concerned that Dismuke might act on her statement to

Scaglione. He and DeVries discussed the incident and what action

would be appropriate. DeVries thought that the seriousness of

the threat warranted termination under the College's personnel

rules, and Wolf agreed. Wolf told DeVries to monitor the

situation and begin the process to terminate Dismuke.

9. Although Wolf and DeVries were concerned for the safety

of the College's personnel, and thought the matter was serious

enough to warrant termination under the College's personnel

rules, neither took any immediate security measures to prevent

Dismuke from carrying out the threat implied in her statement.

10. Thursday and Friday, July 3 and 4, 1997, were school

holidays. On Monday, July 7, 1997, DeVries began an

investigation consisting of interviews of some other employees in

Financial Services. Her investigation ascertained that others

also were afraid of Dismuke. One employee, Dana Livesay,

reported to DeVries that on Monday, July 7, 1997, she overheard

Dismuke on the telephone saying to someone, "You told me to call

you if I started to lose it, before bullets started to fly, well,

I'm about to lose it." After a pause, Dismuke added, "You tell

me to be calm, well I don't want to be calm." Like Scaglione and

Maseda, Livesay also was concerned for her safety and asked to

have her work station moved farther away from Dismuke's.

11. DeVries decided not to discuss the matter with Dismuke.

For one thing, she and Wolf already had decided that termination

was appropriate. For another, DeVries did not think it was

appropriate for her to confront Dismuke and discuss the incident

since prior discussions had been unsuccessful in addressing

Dismuke's grievances, Dismuke now had made threats that DeVries

felt were directed towards her.

12. During the week of July 7, 1997, DeVries prepared an

Employee Discipline Report notifying Dismuke that DeVries was

recommending termination and suspending her with pay pending

termination. Out of concern for her safety and the safety of

others at the College, DeVries made arrangements to have two City

of Tampa Police Department officers present when she met with

Dismuke on Thursday, July 10, 1997, to present her with the

Employee Discipline Report. For their own safety (as well as for

the safety of DeVries and other College personnel), the officers

searched Dismuke for weapons and found none.

13. Dismuke refused to sign the Employee Discipline Report.

DeVries and the police officers advised Dismuke that Dismuke was

to leave the campus and not return, except to participate in an

informal hearing to be held on Tuesday, July 15, 1997. The two

police officers escorted Dismuke off campus. Dismuke remained

calm and respectful and obeyed all instructions from the police

officers without question. After Dismuke left, DeVries signed

the Employee Discipline Report.

14. The informal hearing on July 15, 1 997, was referred to

by different names (including discipline hearing, post-discipline

hearing, and pretermination hearing), and Dismuke seemed confused

as to its purpose.

15. The July 15, 1997, hearing was conducted by a College

administrator named Charles M. Sackett. Sackett questioned

several witnesses, including Wolf, DeVries, Scaglione, Maseda,

and Livesay. He gave Dismuke an opportunity to question the

witnesses and to testify on her own behalf, but she declined.

Dismuke thought it better to just listen to the evidence against

her because she did not feel prepared to cross-examine witnesses

and present a case in her behalf and because she understood that

the informal hearing would be followed by a formal hearing at

which she would be better prepared. Sackett accepted written

material from Dismuke but declined Dismuke's request that he

obtain the witnesses' sworn answers to written questions Dismuke

had drafted; however, he advised her how to obtain a tape

recording and verbatim transcript of the informal proceeding.

16. After the informal proceeding, Sackett prepared a

report which recommended to interim College President, Dr. Jeff

Hockaday, that the "termination of Ms. Dismuke's employment with

the College be affirmed." Wolf and Executive Vice-President Dr.

Diana Ferreira signed the Employee Discipline Report on July 15,

1997; Hockaday signed the next day and required that Dismuke's

suspension with pay continue, pending action by the College's

Board of Trustees on the termination recommendation.

17. The position of Human Resources Vice-President was

vacant during the summer of 1997, and the Employee Discipline

Report was not signed by anyone from the College's Human

Resources Department. Jerry Inman, Human Resources Compensation

and Employee Records Manager, initiated a Personnel Action Notice

(PAN) to place the termination recommendation on the agenda for

the meeting of the College's Board of Trustees scheduled for the

September 17, 1997.

18. On August 1, 1997, Dr. Gwendolyn Stephenson became the

President of the College. She satisfied herself that the pending

proceedings for Dismuke's termination were appropriate and

proceeded with them. (She also proceeded with action to

terminate another employee for threatening violence.)

19. Dismuke thought the Board meeting on September 17,

1997, was her formal termination hearing, and she came prepared

to defend herself. Instead, she was informed: that she already

had had her " pretermination hearing"; that she could make a

presentation to the Board prior to its decision on the

termination recommendation but only would have an opportunity for

a full-blown, formal hearing if the Board of Trustees approved

the recommendation for her termination; and that one option would

be to request hearing before the Division of Administrative

Hearings (DOAH) under Chapter 120, Florida Statutes (1997). The

Board voted to terminate Dismuke. (The Board member who seconded

the motion to terminate Dismuke commented that it was "the

only way to get to a post-termination hearing.")

Dismuke's Defenses

A. Denial.

20. Dismuke's first defense was that she never made the

statements attributed to her. As part of this defense, Dismuke

suggested that the witnesses (including Scaglione, whom Dismuke

considered to be her one good friend in Financial Services until

June 30, 1997), conspired with Barbara DeVries to fabricate

grounds to terminate her. This defense is rejected as being

untrue. First, it is clear that Dismuke was very angry as a

result of what she viewed to be the unfair impact of the results

of the Coopers and Lybrand study on her personally. This

perceived injustice had the effect of reviving all of her earlier

grievances and animosities against the College and her

supervisor. The statements attributed to Dismuke are consistent

with her past behavior under similar circumstances. Dismuke has

a history of using threats of violence to get attention and to

get her way.

21. Dismuke herself insisted on calling Carolyn Speed-

Green, the Assistant to the President for Institutional Equity,

to testify and sponsor a report Speed-Green wrote during the

College's efforts to resolve Dismuke's acrimonious dispute with

her former supervisor in Financial Aid in 1994. The report

included a copy of a letter Dismuke wrote to the President of the

College stating that Dismuke drove to work one day with a gun and

the intention of shooting her supervisor before she "returned to

reality," but changed her mind because she could go to jail for

that and decided to call in sick. Speed-Green's report also

referenced evidence that Dismuke had made a similar statement

(that she "started to shoot" the supervisor) in a meeting with

the supervisor three years earlier.

22. Dismuke claimed that the incident related in the letter

to the President in 1994 and in the earlier statement to her

supervisor were fabricated to get attention and the response she

desired from the College. Another witness called by Dismuke,

Sandra Rodriguez (f/k/a Sandra Castro) testified that, within a

few weeks after Dismuke began work in Financial Services, Dismuke

told the witness that Dismuke actually came to work with a gun

and with the intention of shooting her supervisor. But the

apparent admission could have been another fabrication for

effect.

23. Even in her own testimony at the final hearing in this

case, Dismuke made a veiled threat of violence. After describing

how desperate she would be if she did not get her job back with

back pay, she made a plea that it was "time that someone took the

initiative to stop all this madness. Once I'm out on the street,

I don't know how I'm going to act. They're all saying that I'm

violent. They're all saying that I'm crazy. When I'm out on the

street homeless and hungry with my two grandchildren, who's to

say if I won't become violent."

B. "Threat Against Another."

24. As previously mentioned, the College's Rule 6HX-10-

1.017 prohibits "[t] hreats to do bodily harm . . . against

another while at Hillsborough Community College." Dismuke's

next, alternative defense was that, if found to have uttered the

statements attributed to her, her threats were not "against

another" and did not violate Rule 6HX-10-1.017.

25. It does seem that Scaglione misunderstood Dismuke's

intent in thinking that Dismuke was threatening to shoot him.

Rather, it seems that her statement was meant to imply that she

would be shooting someone else but that Scaglione should wear a

bullet-proof vest to avoid being injured by a stray bullet. But

regardless which was Dismuke's intent, her statement threatened

not only Scaglione but also all of the employees in her work

area.

26. Dismuke does not seem to appreciate the seriousness of

the threats embodied in the words she uttered. Clearly, several

of her co-workers, including DeVries, felt threatened by

Dismuke's statements, and their feelings were not unwarranted.

C. Alleged Selective Enforcement.

27. Dismuke also argues that the College treated her

unfairly because another employee, Sladen McLaughlin, was not

terminated for threatening a co-worker, Mattie Brown. According

to Brown, Brown went to McLaughlin's work-station to get

information she needed to trouble-shoot a telephone problem, and

McLaughlin told her to leave because he did not want to talk to

her about it. When she persisted, McLaughlin "viciously" rose

from his chair and told her to get her "uppity ass" out of his

office. According to McLaughlin, he just got angry at the manner

of Brown's persistence and told her not to act like a "smart

ass." Either way, it was not clear from the evidence that

McLaughlin threatened Brown with violence or bodily harm. He

certainly did not threaten to shoot her. There is no comparison

to Dismuke's threats.

28. In addition, contrary to Dismuke's defense, she was not

the only employee terminated at the Board's September 17, 1997,

meeting for violating Rule 6HX-10-1.017. See Finding 18, supra .

D. Alleged Violation of Progressive Discipline.

29. Dismuke also argued that the College should not be

permitted to terminate her because it did not follow its

progressive discipline procedure.

30. It is clear that while the College's Administrative

Procedure 2.043 provides for progressive discipline, the

procedure also affords supervisors discretion to skip one or more

steps in the procedure. Specifically, immediate termination is

authorized "if an employee's performance . . . is serious enough

to warrant such actions." Termination for Dismuke's threatening

statements was not an abuse of discretion.

E. Alleged Procedural Violations.

31. Dismuke also argued that, under Administrative

Procedure 2.049, she was entitled to receipt of a Personnel

Action Notification (PAN) from the President via the Associate

Vice-President of Personnel Services but that she only received

an unsigned copy of the Employee Discipline Report from DeVries.

32. Administrative Procedure 2.049 was not introduced in

evidence. Administrative Procedure 2.043, which was introduced

in evidence, provides in pertinent part:

A recommendation for termination must be

included on an Employee Discipline Report

form for review and approval by the unit

administrator, the Campus/District-level Vice

President, and the Executive Vice President

(where applicable) and the President. . . .

The Associate Vice President for Human

Resources will notify the employee that the

President is recommending his/her termination

by certified mail, return receipt requested,

with a copy of the Employee Discipline Report

form.

33. It was not clear from the evidence that Dismuke did not

receive a PAN; the evidence was that Jerry Inman, Human Resources

Compensation and Employee Records Manager, initiated the PAN for

Dismuke's termination during a vacancy in the position of

Associate Vice President for Human Resources. The purpose of the

PAN was to place the termination recommendation on the agenda for

the meeting of the College's Board of Trustees scheduled for the

September 17, 1997. It was not clear from the evidence that

Dismuke did not receive her copy of the PAN.

34. It also was not clear from the evidence that Dismuke

did not receive a copy of the signed Employee Discipline Report.

The copy she received from DeVries on July 10, 1997, was not

signed, but the original was signed by several College officials

after Dismuke refused to sign it.

35. Dismuke also complained that several College

administrators other than the College President recommended her

termination. Dismuke argued that only the College President was

authorized to do so. Clearly, the ultimate recommendation for

termination placed before the College Board of Trustees normal

comes from the president (or acting president), as occurred in

this case. However, just as clearly, the College President is

entitled to obtain recommendations from other administrators as

part of the president's decision-making process. In this case,

Acting President Hockaday initially recommended termination based

on the recommendations of other College administrators, and

President Stephenson did the same. There was no procedural

infirmity in either termination recommendation.

F. Alleged Double Jeopardy.

36. Dismuke also argued that it was unfair "double

jeopardy" to suspend her and terminate her for the same offense.

To the contrary, the evidence was clear that Dismuke was

suspended with pay pending the Board's decision on the College

President's recommendation of termination. This was in

accordance with the College's Administrative Procedure 2.043.

The suspension with pay and the termination were both part of the

imposition of a single discipline. There was no "double

jeopardy."

G. No Rules on Termination Hearings.

37. There was no evidence of any rules providing for or

governing either the July 15, 1997, hearing or the hearing before

the Board of Trustees on September 17, 1997.

CONCLUSIONS OF LAW

38. The parties agree that this is a proceeding under

Section 120.57(1), Florida Statutes (1997). Section 120.569(1),

Florida Statutes (1997), provides:

The provisions of this section apply in all

proceedings in which the substantial

interests of a party are determined by an

agency, unless the parties are proceeding

under s. 120.573 or s. 120.574. Unless

waived by all parties, s. 120.57(1) applies

whenever the proceeding involves a disputed

issue of material fact.

39. The parties also agree that the issue for determination

in this case is whether the College had "just cause" for

terminating the Respondent, Corine Dismuke.

40. The College had the burden to prove "just cause." The

standard of proof in a proceeding involving termination of

employment is a "preponderance of the evidence." See McNeill v.

Pinellas County School Bd. , 678 So. 2d 476, 477 (Fla. 2d DCA

1996); Dileo v. School Bd. of Dade County , 569 So. 2d 883 (Fla.

3d DCA 1990); Allen v. School Bd. of Dade County , 571 So. 2d 568

(Fla. 3d DCA 1990). The College had to prove "just cause" by a

preponderance of the evidence.

41. In this case, it is clear that the College met its

burden of proof. The facts are clear that the College had "just

cause" to terminate Dismuke's employment under the College's Rule

6HX-10-1.017. It also was clear that none of Dismuke's defenses

had merit.

42. As for the apparent absence of rules providing for or

governing either the July 15, 1997, hearing or the hearing before

the Board of Trustees on September 17, 1997, the absence of such

rules does not prohibit the holding of those hearings. If the

former hearing had not been held, Dismuke's Employee Discipline

Report would have been forwarded directly for a PAN. The latter

hearing was required for the Board of Trustees, a public body, to

take action on the termination recommendation. Any inadequacies

in those proceedings were cured by this post-termination hearing

under Section 120.57(1), Florida Statutes (1997).

43. The actual purpose of the July 15, 1997, hearing

probably was to serve as a pretermination hearing under federal

constitutional procedural due process requirements. As stated in

Stephens v. Geoghegan , 702 So. 2d 517, 526 (Fla. 2d DCA 1997):

In 1985, the United States Supreme Court

discussed an employee's procedural due

process rights [footnote omitted] in the

context of a discharge. Cleveland Bd. of

Educ. v. Loudermill , 470 U.S. 532, 105 S.Ct.

1487, 84 L.Ed.2d 494 (1985). It noted that

an employee who is threatened with the loss

of a job in which he has a property right

[footnote omitted] is entitled to procedural

due process, and further discussed what was

necessary to preserve this right before

termination. The Loudermill Court observed

that an elaborate pretermination hearing is

not required. It held that, before

discharge, the employee must have notice of

the charges against him. He must be given an

explanation of the employer's evidence and an

opportunity to present reasons, either in

person or in writing, why the proposed action

should not be taken. 470 U.S. at 546, 105

S.Ct. at 1495, 84 L.Ed.2d at 506. The

Court's holding rested in part on the fact

that the pertinent state law provided an

employee with a full post- termination

hearing.

44. Assuming that Dismuke had a property interest in her

employment, the July 15, 1997, hearing met the requirements of

Loudermill . Notwithstanding the absence of rules governing the

pretermination hearing, Dismuke was given "an explanation of the

employer's evidence and an opportunity to present reasons, either

in person or in writing, why the proposed action should not be

taken." She chose not to make a presentation at that hearing,

perhaps wrongly thinking she could do so at the September 17,

1997, hearing before the Board of Trustees. In any event, this

proceeding under Section 120.57(1), Florida Statutes (1997),

provided Dismuke with a full post-termination hearing. It is

concluded that the absence of rules governing the July 15 and

September 17, 1997, hearings did not result in a violation of

Dismuke's procedural due process rights.

45. Even if the absence of rules governing the July 15 and

September 17, 1997, hearings could be construed to have resulted

in a violation of Dismuke's procedural due process rights, it was

held in Simmons v. Department of Natural Resources , 513 So. 2d

723, 724 (Fla. 1st DCA 1987):

[T]his is not the place to vindicate the

violation of such due process rights, at

least in the context of this case. The fact

is that the appellant was eventually given a

full and complete post-termination hearing

which we find properly resulted in an order

approving the termination.

The rationale in Simmons applies to this case. This post-

termination hearing under Section 120.57(1), Florida Statutes

(1997), is not the place to litigate federal due process claims.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Board of Trustees of the Hillborough

Community College enter a final order terminating the employment

of the Respondent, Corine Dismuke.

DONE AND ENTERED this 13th day of July, 1998, in

Tallahassee, Leon County, Florida.

___________________________________

J. LAWRENCE JOHNSTON

Administrative Law Judge

Division of Administrative H earings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 13th day of July, 1998.

COPIES FURNISHED:

Maria N. Sorolis, Esquire

Allen, Norton & Blue, P.A.

324 South Hyde Park Avenue, Suite 350

Tampa, Florida 33606

Corine Dismuke, pro se

10312 Penny Tree Place

Tampa, Florida 33624

Dr. Gwendolyn H. Stephenson, President

Hillsborough Community College

Post Office Box 31127

Tampa, Florida 33631

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.