Hogan v. Kennebec Valley Community College

STATE OF MAINE SUPERIOR COURT
SOMERSET, SS. CIVIL ACTION
DOCKET NO gp OPP 08°

XINXIU <TINA= HOGAN,
Plaintiff
Vv. DECISION AND ORDER

KENNEBEC VALLEY
COMMUNITY COLLEGE,
Defendant

INTRODUCTION

This is an appeal pursuant to MLR. Civ. P. 80B brought by Xinxiu <Tina= Hogan

(Plaintiff) from a decision of a Disciplinary Committee of the Kennebec Valley

Community College (KVCC or Defendant) dismissing her from the college9s

respiratory therapy program on the basis that her conduct violated the Student Code

of Conduct by threatening or endangering the health or safety of respiratory therapy

patients during a clinical practicum course in 2021 and 2022.

The Plaintiff contends that KVCC and its Disciplinary Committee committed

errors of law and were arbitrary and capricious in treating her conduct as a

disciplinary matter under the Student Code of Conduct, rather than as an academic

issue under the respiratory therapy program handbook.

For the reasons discussed below, the court denies the appeal and affirms the

decision of the Disciplinary Committee.
FACTUAL BACKGROUND

Based on the Administrative Record (A.R.), the factual background of this case

may be summarized as follows:

The Plaintiff was a student in the respiratory therapy program at KVCC from

the spring of 2017 to the spring of 2022. tn the fall of 2021, she was participating in

a clinical practice course, during which she performed clinical work at a variety of

local hospitals, while being supervised by employees of the clinical site. In November

2021, KVCC faculty began receiving email communications from clinical site

supervisors that raised concerns about the Plaintiffs clinical performance. The first

of these came on November 2, 2021, from Reddington Fairview Hospital in

Skowhegan, in which the Director of Respiratory Care <wanted to share some

concerns with [the Plaintiffs] performance.= (A.R. at 33.)

On February 28, 2022, a respiratory therapist at Franklin Memorial Hospital

emailed the Director of Clinical Education at KVCC stating that the Plaintiff <was really

struggling with her skills in the clinical setting.= (A.R. at 41.) The therapist wanted to

talk more to the Director of Clinical Education because she had <some big concerns as

[Plaintiff] is supposed to be graduating soon.= Id. The Director did, in fact, call the

therapist at Franklin Memorial and was told that the Plaintiffs clinical skills were

concerning to her for a number of reasons, including that the Plaintiff was <listening

for breath sounds in incorrect places.= (A.R. at 73.) The therapist also disclosed that
the Plaintiff was not pleased with her evaluation and urged the therapist to fill out a

new one. (A.R. at 41, 73.)

On March 17, 2022, a respiratory care supervisor at MaineGeneral emailed

KVCC9s Director of the Respiratory Therapy Program that the hospital <had many

issues with= the Plaintiff while at its clinical site. (A.R.at 44.) The supervisor reported

that the Plaintiff was <unsafe with patients and very confrontational with staff.= Id.

KVCC9s Director of Clinical Education happened to be at MaineGeneral that day and

observed first-hand that the Plaintiff employed <unsafe needle practices,= including

<incorrect angle of needle in skin, not recognizing that needle had withdrawn from

skin and attempting to re-stick patient with the same needle, and not recognizing

when to appropriately cap the needle.= (A.R. at 73.) It was also reported that the

Plaintiff became argumentative with staff at MaineGeneral over her grade and

eventually had to be asked to leave MaineGeneral. (A.R. at 44.) The supervisor

expressed the opinion that <[c]linically, I do not think [the Plaintiff] is ready to do any

patient care on her own.= (A.R. at 44.)

On March 24, 2022, a meeting was held with the Plaintiff and KVCC9s Director

of the Respiratory Therapy Program, the Director of Clinical Education, and the

Interim Dean of Students, the purpose of which was to discuss the March 17, 2022

incident at MaineGeneral. (A.R. at 8.)

Then, on April 12, 2022, the Assistant Manager of Respiratory Medicine at

Northern Light Eastern Maine Medical Center emailed KVCC9s respiratory therapy
directors about concerns with the Plaintiffs clinical behavior and performance.

(A.R. at 66.) Specifically, the Assistant Manager described the Plaintiff's attempt to

obtain an ABG without first removing the cap from her needle and then taking so long

to set up for the ABG that the blood pressure cuff cycled twice. <She tried to obtain

the gas with the cap on and when the cuff was going off.= Id. Next, the Plaintiff failed

to recognize that a cystic fibrosis patient was in <obvious distress= and <audibly

wheezing,= but the Plaintiff did not seem to pick up on these signs even as the

respiratory therapist preceptor tried to address these concerns with the Plaintiff.

The following day, April 13, 2022, the Director of Clinical Education

recommended that the Plaintiff <be dismissed from RTS 230 Clinical Practicum III.=

(A.R. 73.) The Director concluded her letter by recommending that the Plaintiff <be

dismissed from the class,= by noting that three area hospitals had stated that the

Plaintiff would only be allowed to perform clinical work at their facilities, if she were

supervised 1:1 by the Director of Clinical Education herself. Id.

PROCEDURAL HISTORY

In a letter dated April 15, 2022, the Interim Dean of Students for KVCC

informed the Plaintiff that she was suspended from the Respiratory Therapy Program

based on information that on April 12, 2022, <patient safety was at risk under your

care.= (A.R. at 1.) Such conduct, if accurate, <would violate Sections 501, III, B16 of

the Student Code of Conduct.= Id.
The Plaintiff was given the opportunity to meet with the Dean, which she did,

on April 21, 2022. Following that meeting, the Dean sent another letter to the plaintiff

informing her that the Dean had <determined that it is more probable than not that

on or about March 17th, 2022, and April 12th, 2022, you endangered patient safety.=

(A.R. at 2.) The Dean found that this conduct violated Section 501(III)(B)(16) of the

Student Code, which provides that <any other conduct that threatens or endangers

the health or safety of one9s self or others,= constitutes a violation of the Student Code.

(A.R. at 82.) The Dean sanctioned the Plaintiff by dismissing her from the Respiratory

Therapy Program. (A.R. at 2.)

The Plaintiff filed a <Stage 2= appeal of the Dean9s decision to the Disciplinary

Committee appointed by the College President. (A.R. at 84.). A Disciplinary

Committee was convened, a hearing was held, and a decision was rendered upholding

the dismissal sanction.

The Plaintiff then filed an appeal to the Superior Court pursuant to

MLR. Civ. P. 80(B), which was given Somerset Docket No. AP-2022-03.1 On May 10,

2023, the Superior Court (Mills, A.R.J.) found that the Disciplinary Committee9s May 1,

2022 decision and the record on appeal were inadequate for meaningful judicial

' The Court notes that the Student Code of Conduct permits a <Stage Three= appeal to the College President,
who is not bound by any prior decision. The Administrative Record contains no information as to whether the
Plaintiff took an appeal to the College President, and the parties have not mentioned it. Nor has a potential
issue of failure to exhaust administrative remedies by the Plaintiff been raised. Accordingly, the court will not
discuss it further.
review. The court remanded the matter to the Disciplinary Committee for a new

hearing <and to make a final decision that provides findings of fact based on a

reviewable record.2

Following the remand order, the Disciplinary Committee held a new hearing

on July 31, 2023, at which it received evidence from the Dean and the Plaintiff, which

is included in the Administrative Record.3 In an email dated August 9, 2023, the

Disciplinary Committee upheld the Dean9s finding of a violation of the Student Code

and the sanction of dismissal from the Respiratory Therapy Program. The

Disciplinary Committee made explicit findings, which are reproduced below.

Specifically, the committee concluded that it was more probable than
not that your conduct, on several occasions, spanning two semesters,
dating November 2021, as well as February, March, and April 2022,
disregarded the welfare, health or safety of the College community.

The emails and related incident reports, all written contemporaneously,
describe conduct that <threatens or endangers the health or safety of
others= such as using aggressive measures to wake a patient; unsafe
needle practices; failing to recognize a patient in obvious distress; and
arguing with site staff about clinical evaluations and scores. We found
the emails and reports to be credible because of the detail provided by
hospital staff. We also found the notices 4 after the fact 4 from three
different hospitals (Central Maine Medical Center; Maine General; and
Northern Light Health) that they would not allow you back on site
without one-on-one faculty supervision credible and compelling.

The materials and records you supplied did not speak
contemporaneously, or at all, to the conduct ascribed to you. The

2 The court also observed that the Disciplinary Committee9s decision is the <operative decision for review.=
3 As the Plaintiff points out, the hearing before the Disciplinary Committee was not recorded or transcribed. The
Maine Administrative Procedure Act, however, does not apply to community colleges, and the Plaintiff has not
brought to the court9s attention any legal requirement that the Disciplinary Committee9s proceedings be recorded in a
manner capable of being transcribed. 5 M.R.S. § 8002(2).
materials that were directly related were either reflective, after the fact,
or contradictory to the contemporaneous record. We found the
materials you provided in your testimony to be less credible than those
supplied by multiple, independent clinical sites.

(A.R. at 79.)

Regarding the Plaintiff's assertion that the allegations against her were the

product of racial bias, the Disciplinary Committee stated: <Despite your contention

that these reports were the byproduct of racism, we did not find any evidence of

racism, discrimination, or personal animosity in any of the provided documentation.

Further, in your evaluations of site preceptors, you did not once mention

discrimination as the reason for your scores.= Id.

Finally, the Committee rejected the suggestion that the Plaintiff's conduct was

an academic issue by stating: <The committee believes the timing (i.e., late in

academic career), severity, nature, and number of incidents represents negligent

behavior that is not simply an artifact of a student learning to perform clinical duties.=

Id.

On September 7, 2023, the Plaintiff filed her <Complaint for Review of Final

Governmental Action and for Violation of Due Process Rights.=* Her amended

complaint was filed on October 27, 2023. Together with the complaints, the Plaintiff

moved for an order to specify the future course of the proceedings, because she

asserted two independent causes of action, namely, due process violations (Count II)

4 See Note 1, supra.
and unlawful education discrimination in violation of 5 M.R.S. § 4601, et seq. (Count

Ill).

Meanwhile, on November 27, 2023, KVCC moved to dismiss Counts II and III of

the Amended Complaint as duplicative of the Rule 80B review of governmental action

(Count I). In an Order dated January 22, 2024, the court (Stokes, A.R.J.) dismissed

Count II (due process violation), but denied the motion to dismiss Count III (unlawful

education discrimination), <at this time.= The court directed that the Rule 80B

review (Count I) be addressed and resolved first. Accordingly, the court denied the

Plaintiff's motion to specify the course of the proceedings, and stated that <[f]urther

action on Count III is deferred until after the court resolves Count !....=

Briefing on Count I was completed on May 14, 2024.

DISCUSSION

The parties appear to be in agreement that the court9s review of the

Disciplinary Committee9s decision is <deferential and limited.= Beal v. Town of

Stockton Springs, 2017 ME 6, J 13, 153 A.3d 768. The burden of persuasion to show

error is upon the one seeking to overturn the decision below. The court9s role is not

to substitute its judgment for that of the decision-maker, particularly where the

agency has made factual findings and credibility determinations. Friends of Lamoine

v. Town of Lamoine, 2020 ME 70, { 21, 234 A.3d 214. Rather, the court9s review must

be based on the Administrative Record and is limited to assessing whether the

agency9s decision was erroneous as a matter of law, was arbitrary and capricious or
an abuse of discretion, or was based on findings that were not supported by

<substantial evidence in the record,= meaning that there <is any competent evidence

in the record to support a decision.= Osprey Fam. Tr. v. Town of Owls Head, 2016 ME

89, J 9,141 A.3d 1114; 21 Seabran, LLC v.Town of Naples, 2017 ME 3, J 10, 153 A.3d

113.

The Plaintiffs primary argument in seeking to overturn the Disciplinary

Committee9s dismissal decision is that neither the Dean nor the Disciplinary

Committee should have treated her case as one involving a disciplinary matter under

the Student Code of Conduct. Rather, she argues that her conduct while enrolled in

the Respiratory Therapy Program was governed by the Respiratory Therapy Program

Handbook (RT Handbook) in effect for the 2021-2022 academic year. (A.R. at 88).

That Handbook provides for an <Academic Dismissal= from the program, with the

opportunity to re-enter the program on a <probationary status.= (A.R. at 112.) The

insistence of the Dean and the Disciplinary Committee of invoking the Student Code

of Conduct, rather than the RT Handbook, and treating this matter as a student

disciplinary matter, warrants the court in vacating the decision, according to the

Plaintiff.

In making this argument, the Plaintiff points to the following language in the

RT Handbook: <Please note that a number of program policies differ from the College

policy. The program policy is the presiding policy.= (A.R. at 92.) From this the

Plaintiff argues that respiratory therapy students at KVCC were told to follow the
Handbook and she relied on that representation that her conduct would be governed

by the Handbook. See Plaintiffs Rule 80B Brief at 12.

The Plaintiff's argument is not convincing. First, that the RT Handbook states

that it is the <presiding policy,= in no way suggests that the Student Code of Conduct

is inapplicable or that it is replaced by the Handbook. Indeed, the Code itself clearly

states that it <applies in addition to other College and System policies and

regulations, ...students whose conduct violates those authorities may also be

subject to their sanctions and penalties.= (A.R. at 81.) (emphasis in original). Even

clearer, the RT Handbook itself incorporates within it the Student Code of Conduct,

including that conduct <that threatens or endangers the health or safety of any person

... is subject to discipline. (A.R. at 94.)

The decision to proceed under the Student Code of Conduct is for the college

administration, and this court has no authority to intrude on that decision. The

Plaintiff has argued that the Dean was required to follow the recommendation of the

Director of Clinical Education that she be dismissed from the Clinical Practicum III]

Class, but neither the Dean nor the Disciplinary Committee were bound to follow that

recommendation, and the Plaintiff has not directed the court9s attention to any

relevant legal authority to the contrary.

Considering the record evidence, which the court finds meets the <substantial

evidence= test, the choice of proceeding under the Code of Conduct, and treating it as

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a potential disciplinary matter, was not an error of law, nor was it arbitrary,

capricious, or an abuse of discretion.

The Plaintiff's due process challenge is also rejected by the court. The Plaintiff

was given notice and an opportunity to be heard before the Dean, and again, de novo,

before the Disciplinary Committee. The Plaintiff was allowed to, and did, present

evidence before the Disciplinary Committee, and the Committee made detailed and

specific findings and conclusions, which this court may not disturb.

For the foregoing reasons, the Rule 80B appeal will be denied.

COUNT III

The court wishes to address Count III of the Amended Complaint, which alleges

unlawful education discrimination under State law. This count remains pending, as

it survived KVCC9s motion to dismiss as being duplicative of the Rule 80B appeal. In

her Rule 80 brief, the Plaintiff made no mention of any claim the Dean or the

Disciplinary Committee was racially biased against her in dismissing her from the

Respiratory Therapy Program. Any claim of racial bias on the part of the decision-

maker or that the decision was based on racially biased information, would most

certainly be grounds for a reviewing court to vacate that decision, and would provide

the Plaintiff with the precise relief she is seeking.

The court has reviewed the Administrative Record in detail and can find no

evidence of any kind that racial bias played any part in the proceedings below, or the

events giving rise to those proceedings.

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In her reply brief, the Plaintiff explains that she did not address the issue of

discrimination in her main Rule 80B brief because she was following the court9s order

of January 22, 2024, that <[f]urther action on Count II] is deferred until after the court

resolves Count I [Rule 80B].=

Apparently, the Plaintiff has misconstrued the court9s January 22, 2024 order.

Nothing in that order suggests that evidence of racial bias in the Administrative

Record, could not or should not be brought to the court9s attention in the parties9

principal briefs on Count I.

From the order of January 22, 2024, it should have been clear that the court

was uncertain as to what to do with Count III. Thus, it would have been helpful to the

court had the Plaintiff identified where, in the Administrative Record, there was

evidence of racial bias. The Amended Complaint uses the same factual allegations in

Counts I and II. Based on the Court9s comprehensive review of the Administrative

Record, it concludes that Count III is duplicative of Count I. Since the Count J, Rule

80B appeal, will be denied, Count III will also be dismissed.

CONCLUSION

The entry is:

Count I of the First Amended Complaint is denied, and the
decision of the KVCC Disciplinary Committee is affirmed.

Count III of the First Amended Complaint is dismissed.

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The clerk is directed to incorporate this order into the docket by reference in
accordance with MLR. Civ. P. 79(a).

DATED: August 12, 2024

illiam R. Stokes
Active Retired Justice
Superior Court

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