(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
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
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
[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
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
issues with= the Plaintiff while at its clinical site. (A.R.at 44.) The supervisor reported
that the Plaintiff was
KVCC9s Director of Clinical Education happened to be at MaineGeneral that day and
observed first-hand that the Plaintiff employed
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.
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
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
(A.R. 73.) The Director concluded her letter by recommending that the Plaintiff
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,
care.= (A.R. at 1.) Such conduct, if accurate,
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
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
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
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
hearing
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
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
(A.R. at 79.)
Regarding the Plaintiff's assertion that the allegations against her were the
product of racial bias, the Disciplinary Committee stated:
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:
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
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),
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
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
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
opportunity to re-enter the program on a
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:
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
is inapplicable or that it is replaced by the Handbook. Indeed, the Code itself clearly
states that it
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
... 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
evidence= test, the choice of proceeding under the Code of Conduct, and treating it as
10 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.
11 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.
12 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