STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DR. PETER P. MCKEOWN, )

)

Petitioner, )

)

vs. ) CASE NO. 95-1832

) UNIVERSITY OF SOUTH FLORIDA, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in this case in Tampa, Florida on December 4, 1995, before Arnold H. Pollock, a Hearing Officer with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: William C. Guerrant, Jr., Esquire

Danelle Dykes, Esquire Hill, Ward and Henderson

101 East Kennedy Boulevard, Suite 3700 Tampa, Florida 33602

For Respondent: Thomas Gonzalez, Esquire

109 North Brush Street, Suite 200 Tampa, Florida 33602

Olga Joanow, Esquire Assistant General Counsel University of South Florida

4202 East Fowler Avenue, Admin 250

Tampa, Florida 33620-6250 STATEMENT OF THE ISSUES

The issue for consideration in this matter is whether the University's removal of Dr. McKeown from his position as Chief of the Medical School's Division of Cardiothoracic Surgery, within the Department of Surgery was appropriate.

PRELIMINARY MATTERS

By memorandum date April 11, 1994, Dr. Larry C. Carey, Professor and Chairman, Department of Surgery, University of South Florida College of Medicine, announced that effective immediately he would be assuming the directorship of the Department's Division of Cardiovascular and Thoracic Surgery, an action which had the effect of relieving Petitioner of his position as Chief of the Division which he had held for several years. Petitioner thereafter filed a Step One grievance relating to that action and an inquiry

into Petitioner's allegations was subsequently conducted by Dr. Anthony Reading, Associate Dean for Faculty Affairs, the Step One Representative.

By Report dated September 9, 1994, Dr. Reading concluded the grievance was unfounded, finding that the Director of the Department of Surgery had the right to remove Petitioner if he believed to do so was in the best interests of the Department. By letter dated September 15, 1994, Petitioner requested a Step Two Review. A Step Two meeting was thereafter held between Petitioner and Dr.

Marvin Dunn, the Medical College's Dean and responsible Vice-president/Provost, but no report was issued. By Petition for Administrative Hearing filed with the University's Office of the General Counsel on March 30,1995, Petitioner requested formal administrative hearing and this hearing ensued.

At the hearing, Petitioner testified in his own behalf and presented the testimony of Dr. Carey and Dr. Tennyson Wright, Associate Provost and Associate Professor at the University of South Florida. Petitioner also introduced Petitioner's Exhibits 1 through 27 at hearing, and by stipulation and agreement, Exhibits 28 through 31, filed subsequent to the hearing. Respondent presented the testimony of Dr. Carey and also called the Petitioner. Respondent also introduced Respondent's Exhibits A through C.

A transcript of the proceedings was filed and subsequent to that filing, counsel for both parties submitted Proposed Findings of Fact which have been ruled upon in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. Petitioner, Peter P. McKeown, is a graduate of the University of Queensland Medical School in Brisbane, Australia. He holds the degrees of Bachelor of Medicine and Bachelor of Surgery. Doctorates of Medicine, under the British system, are reserved for specialists. Nonetheless, the medical training Petitioner received equates to that leading up to the award of the degree of Doctor of Medicine in the United States, and he is a physician and licensed as such in several states. He has completed residencies in general and thoracic surgery in Australia and the United States and has taken advanced training in cardiovascular and thoracic surgery at Emory University. Immediately before coming to the University of South Florida, (USF), Dr. McKeown was an Assistant Professor of Surgery at the University of Washington.

   
   

2. In mid to late 1988, Dr. McKeown responded to an advertisement USF had placed in the Journal of the American Medical Association seeking applicants qualified for appointment at the Associate Professor level "... to join the Department of Surgery at the University of South Florida College of Medicine as the Chief of Cardiothoracic Surgery." He was selected for the position and joined the faculty effective May 1, 1989. All the correspondence leading up to Petitioner's joining the University faculty referred not only to his appointment as Associate Professor but also his assignment as Chief of the Cardiothoracic Surgery Division. Only the actual state employment contract described his employment exclusively as Associate Professor and made no mention of the Chief position. Under these circumstances, Petitioner did not gain any proprietory interest in the position of Chief of the Cardiothoracic Surgery Division.

   
   

3. Dr. McKeown held the position of Chief of the Cardiothoracic Surgery Division until April, 1994, when, as a result of a decision made by the Chairman of the school's Department of Surgery, he was replaced as Chief and that position was filled, on a temporary basis, by the Department Chair.

4. Petitioner claims that when he arrived at USF to assume the directorship, an administrative position, he saw an opportunity to develop the position into something significant. He contends he would not have come to USF unless he was to be the Chief of the Division as there was no appeal to him in a position as a general faculty member. He wanted an opportunity to budget, hire people, and develop plans and programs, and in order to advance in academic medicine, one must, at some point, hold an administrative position.

   
   

5. Apparently the Department of Surgery had experienced a rapid turnover in faculty. It is not clear whether this caused or was the result of a dispute with administrators and medical staff at Tampa General Hospital, (TGH), where much of the clinical medical school activity is carried on. However, the program was recognized as being weak in cardiothoracic surgery, and this condition offered Petitioner the challenge he wanted.

   
   

6. In his five years as Chief, Petitioner increased both the number and quality of personnel and revenues considerably. He developed affiliations with several foreign universities and recruited qualified people, built up the laboratory, secured more grants, developed a program of continuing medical education and raised the examination scores of the school's graduates. He opened new clinical programs and built up both billings and collections to the point where the program revenues were increased at least 2 to 5 times. By 1992- 1993, the Division was making money and generating a surplus and still used clinic funds to support research.

   
   

7. During his tenure as Chief of the Division, Petitioner served under two Department of Surgery chairmen. The first was Dr. Connar, the individual who recruited him; and the incumbent is Dr. Carey, the individual who removed him. Petitioner asserts that at no time during his tenure in the position of Chief of the Cardiothoracic Surgery Division was he ever told, by either Department Chairman, that his performance was unsatisfactory. All Division heads within the Department were, from time to time, counseled about personnel costs, and Petitioner admits he had some differences with Dr. Carey about that subject and some other financial aspects of the job, but nothing different than anywhere else in academia.

   
   

8. Petitioner was removed by Dr. Carey based in part upon his alleged inability to get along with people. Though he claims this is not true, he admits to three areas of conflict. The first related to his objection to transplants being accomplished by unqualified surgeons which, he alleges, Dr. Carey permitted to further his own ends. The second related to the pediatric heart transplant program for which Petitioner supported one candidate as chair and Dr. Carey supported another. The third related to Petitioner's reluctance to hire a physician whom Dr. Carey wanted to hire but to whom Petitioner purportedly objected.

   
   

9. Of the three areas of dispute, only the first two came before his removal, but he contends at no time was he advised his position was a problem for the Department. By the same token, none of Petitioner's annual performance ratings reflected any University dissatisfaction with his performance. At no time was he ever rated unsatisfactory in any performance area; and prior to his removal, he had no indication his position as Chief of the Division was in jeopardy. Dr. Carey indicates he did counsel with Petitioner often regarding his attitude but did not rate him down because he hoped the situation would improve.

10. Dr. McKeown was called to meet with Dr. Carey in his office on April 12, 1994. At that meeting, Dr. Carey was very agitated. He brought up the "Norman" incident and indicated he was going to remove Petitioner as Chief of the Division. Dr. McKeown admits to having made an inappropriate comment regarding Dr. Norman, another physician, to a resident in the operating room while performing an operation. He also admits that it was wrong to do this and apologized to Dr. Norman both orally and in writing shortly thereafter. Dr. Norman accepted his apology and Petitioner asserts that after his removal, Dr. Norman called him and assured him he, Norman, had not prompted the removal action. Dr. Norman did not testify at the hearing.

    
    

11. Dr. Carey removed Petitioner from his position as Chief because of the comments he had made regarding Dr. Norman. Almost immediately after the meeting was concluded, Dr. Carey announced in writing his assumption of the Chief's position, in which position he remained until he hired Dr. Robinson as Chief in April, 1995. Petitioner found out that Carey's threat to remove him had been carried out the following day when his nurse told him his removal had been announced at the Moffett Cancer Center. He thereafter heard other reports of his removal from other sources, and based on what had happened, concluded his removal was intended to be and constituted a disciplinary action for his comment regarding Dr. Norman. He was not advised in advance of Carey's intention to impose discipline nor given an opportunity to defend himself before the action was taken. He claims he was not given any reason for his removal before or at the time of his dismissal. It is found, however, that the removal was not disciplinary action but an administrative change in Division leadership.

    
    

12. Dr. McKeown at first did nothing about his removal, believing it would blow over. However, after he heard his removal had been publicized, he called several University officials, including a Vice-President, the General Counsel and the Provost, to see how the matter could be handled. He claims he either got no response to his inquiries or was told it was a Medical College problem. He then met with the Dean of the College of Medicine who indicated he could do nothing.

    
    

13. After he was removed as Division Chief, Petitioner's salary remained the same as did his supplement from his practice. He claims, however, his removal has had an adverse effect on his reputation in the medical and academic communities. It is his belief that people now feel something is wrong with him. Dr. Carey's blunt announcement of his assumption of the Chief's position, without any reasons being given for that move or credit being given to Petitioner for his past accomplishments has had an impact on his ability to work effectively. After his removal, he received calls from all over the world from people wanting to know what had happened. The removal has, he claims, also made it more difficult for him to get grants and has, thereby, adversely impacted his ability to do productive research. In addition, his removal made it difficult for him to carry out his academic duties. His specialty is still presented in student rotations, only in a different place in the medical curriculum.

    
    

14. Dr. McKeown has sought reinstatement to the administrative position of Chief of the Division. He is of the opinion that Dr. Carey's action in removing him from his position as Division Chief was capricious and damaging to the University as well as to his career. Petitioner admits he could have been less confrontational in the performance of his duties as Division Chief, but he knows of no complaints about him from TGH, All Children's Hospital or the VA Hospital. There are, however, letters in the files of the Department Chairman which indicate some dissatisfaction with Petitioner's relationships in some quarters and, as seen below, there were signs of dissatisfaction from both TGH and All

    Children's Hospitals. Petitioner admits he may have been somewhat overbearing or abrasive, but neither his alleged inability to properly steward finances nor his alleged inability to get along with people were mentioned to him at the time of dismissal or before.

    
    

15. After Dr. Carey assumed the Chairmanship of the Department of Surgery in July, 1990, he saw Dr. McKeown frequently on an official basis at first. A Chief, as Petitioner was, has many and varied functions such as administration, teaching, fiscal, research, clinic administration and the like. People skills are important because of the necessary interface with colleagues, faculty, administrators and the public.

    
    

16. When Dr. Carey came to USF, Dr. McKeown had not been in place very long, and the Division of Cardiothoracic Surgery was not doing well financially. There were contract negotiations going on with the VA Hospital which were not going well, at least partly because, Dr. Carey asserts, Dr. McKeown had made some major unacceptable demands. As a result, Dr. Carey stepped in, along with Dr. Benke, who was very effective in dealing with the VA, and as a result, an agreement was reached which resulted in somewhere between $275,000 and $300,000 per year coming in which put the Division in the black.

    
    

17. Dr. Carey recalls other instances indicating Dr. McKeown's inability to get along with others. One related to the relationship with TGH previously mentioned. TGH had made a decision to use a particular physician as head of its transplant program because, allegedly, Dr. McKeown had so angered private heart patients they would not let him be appointed even though Dr. McKeown was Dr. Carey's choice. As it turned out, Dr. Carey convinced the TGH Director and another physician to agree to a plan whereby Dr. McKeown would be head of the program 50 percent of the time. This would have been good for the University, but Dr. McKeown refused indicating that if he could not be in charge all of the time, he would not be in charge at all.

    
    

18. Another incident relates to All Children's Hospital. That institution wanted to initiate a pediatric heart transplant program and a meeting was set up to which Dr. McKeown was invited. Petitioner so infuriated the community surgeons attending that meeting they would not work with him, and without his, Carey's, efforts, Dr. Carey claims the program was doomed to failure. As a result, Carey asked Dr. Nevitsky to help get the program started. This gave the USF an opportunity to participate in the program, but when Nevitsky left, they lost it.

    
    

19. Still another example, according to Dr. Carey, is the fact that some surgeons on staff have called to complain about Dr. McKeown's attitude and unwillingness to compromise and negotiate and about his demands for service and staff, all of which creates friction among the hospital staff.

    
    

20. A few days before Dr. Carey removed Petitioner as Chief, he spoke with the Dean of the College of Medicine, a Vice-president of the University, and others who would be impacted, about his concern regarding the Cardiothoracic Surgery Division and, in fact, he had had discussions with other officials even before that time. Long before making his decision to remove Petitioner, Carey spoke of his consideration of possibly shifting the emphasis within the Division to non-cardiac thoracic surgery in place of the cardiac program which Dr. Carey felt was not very successful. He believed the program did not do enough procedures to support the medical school affiliation.

21. Dr. Carey chose to dismiss Dr. McKeown as Chief of the Division on April 12, 1994, after learning of McKeown's destructive attack on another surgeon before a junior physician in a public place, an operating room, (the Norman incident). He notes that over the years there was a building concern regarding Dr. McKeown's abilities as an administrator, and this incident with Dr. Norman was the last straw. Dr. Carey had received complaints about Petitioner from other physicians, all of which he discussed with Dr. McKeown. Finally, with the Norman incident, it became abundantly clear that Dr. McKeown's capabilities as a leader had diminished to the point where a change was necessary.

    
    

22. Before he dismissed Petitioner, and during the investigation which led up to the dismissal, Dr. Carey admits, he did not give Dr. McKeown any opportunity to give any input to the decision. By the time Carey met with McKeown on April 12, 1994, his mind was made up. The Norman incident was demonstrative of what Carey perceived as McKeown's lack of supervisory ability, and it was that factor which led Carey to the ultimate decision to remove McKeown. He felt it necessary to act then and not leave Dr. McKeown in place during the search for a replacement.

    
    

23. Petitioner cites alleged comments made by Carey to others that he would have relieved anyone for doing what Petitioner did in the Norman incident. Dr. Carey cannot recall having made such a statement. He claims he considered disciplinary action against Petitioner for the Norman comments but decided against it. However, it was the last in a series of incidents which caused him to question the propriety of McKeown's placement in the Chief's position, and which ultimately cemented his decision to replace him.

    
    

24. Dr. Carey met with Dr. McKeown several times before the dismissal and counseled him about administrative deficiencies in his performance, but he never told Dr. McKeown that unless he improved, he would be dismissed. This is consistent with Petitioner's testimony that he was not warned of his shortcomings or of the administration's dissatisfaction with his performance. Disagreements in conversations between superior and subordinate, meant by the former to be corrective in nature, are not always taken as such by the latter.

    
    

25. Dr. Carey did not document any of this in Dr. McKeown's personnel files but put some of the information he received by way of communications from others in the files. These are the letters submitted by the University, pursuant to agreement of the parties, subsequent to the hearing. They contributed to Carey's increasing concern about Dr. McKeown's ability to lead the Division. At no time, however, though he questioned Dr. McKeown's leadership, did Dr. Carey ever question his good faith and sincerity, nor does he do so now.

    
    

26. When he finally decided action was necessary, on April 12, 1994, Dr. Carey wrote a memorandum to the Medical College faculty concerning his assumption of the position as Chief of the Cardiothoracic Surgery Division. He also advised Dr. McKeown of his removal. Dr. Carey remained in the Chief's position, holding that title in an administrative capacity and not from a clinical standpoint, for approximately one year, intending to stay in the position only until he could find a fully qualified thoracic surgeon to take the job. After Carey removed Petitioner, he was contacted by the Medical College Dean who asked that he get with McKeown and try to work something out. He thereafter offered Dr. McKeown the position of Chief of the cardiac section of the Division but McKeown declined. Dr. Carey also, on April 26, 1994, wrote to TGH recommending that Dr. McKeown be allowed to have more impact on the

    hospital's transplant program, pointing out that the change in McKeown's position at the University was occasioned by a need for a change in leadership.

    
    

27. According to Dr. Tennyson J. Wright, Associate Provost of the University, disciplinary action against nonunion faculty members is governed by Rule 6C4-10.009, F.A.C., and requires notice of proposed action be given before such disciplinary action is taken. The contract which Dr. McKeown holds and has held since the inception of his tenure at the University, is a standard USF/State University System contract. It reflects Petitioner was hired as an Associate Professor, which is one of the three types of personnel classifications used within the system. These are faculty, administration and support.

    
    

28. Petitioner's contract does not refer to his holding the Division Chief position and it is not supposed to. Such a position is an administrative appointment within a Department and a working title used to define the holder's duties, and service in such a position is at the pleasure of the Department Chair. Appointment to or removal from a Chief position is an administrative assignment. The position of Department Chairperson, on the other hand is a separate position and subclassification within the University classification system and is different.

    
    

    CONCLUSIONS OF LAW

    
    

29. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter in this case. Section 120.57(1), Florida Statutes.

    
    

30. Petitioner herein, Dr. McKeown, has alleged that his removal from the position of Chief, Cardiothoracic Surgery Division of the USF School of Medicine's Department of Surgery was an improper disciplinary action taken in violation of Rule 6C4-10.009, F.A.C., in that Dr. Carey did not first advise him of the nature of his alleged misconduct and afford him the opportunity to respond thereto in writing. The burden of proof is upon the University to establish a legitimate, non-punitive basis for its action by a preponderance of the evidence.

    
    

31. Removal from office through an administrative reclassification or reassignment is not a form of discipline permitted under the University's rules. However, Dr. McKeown did not hold an appointment as Chief of the Cardiothoracic Surgery Division, but was merely assigned to that position by the Chairman of the Department of Surgery, Dr. Carey, to serve at his pleasure. The term "Division Chief" is not a recognized classification but merely a working title. It matters not that the title was referenced in pre-hiring communications between the school and Dr. McKeown. Since the cited rule pertains only to the termination of appointments, and since this assignment did not rise to the level of an appointment, the rule's discipline implementation procedure did not have to be followed here.

    
    

32. In addition, the evidence presented at the hearing does not, in its totality, establish that Dr. Carey's action was intended to be or constituted discipline. The evidence indicates a continuing low level problem of interpersonal difficulties surrounding Dr. McKeown. Well liked by some, he was shown, nonetheless, to be disliked by others, many of whom registered official complaints regarding his attitude and interpersonal skills. There is some evidence that Dr. McKeown, though not warned that his attitudes might lead to

    his removal, was counseled regarding a need to relate more amicably to others with whom he dealt on a professional basis.

    
    

33. The comments made in the operating theatre regarding Dr. Norman evidence a lack of good judgement on the part of Dr. McKeown. Even if Dr. Carey indicated to Petitioner he was being relieved "because" of that comment, that alone does not establish the removal was punitive. It is clear the comment was but the last in a series of judgemental and administrative aberrations demonstrated by Dr. McKeown during his tenure in office. Dr. Carey indicated, and the evidence or record tends to confirm, that Dr. McKeown's ability to relate to others whose performance did not meet his standards, or whose actions did not conform to his beliefs, was less than acceptable and generated a definite problem in his administration of his office. This last example of poor judgement on the part of Dr. McKeown precipitated action by Dr. Carey to implement a removal which he had been considering for some time. Carey's removal of Dr. McKeown from the position of Division Chief did not constitute discipline for misconduct but rather the rectification of a situation which, for some time, had shown a need for change. Since the removal was administrative rather than disciplinary, the procedure called for in Rule 6C4-10.009 was not required.

    
    

34. Petitioner has also contended that USF failed to comply with the grievance procedures set forth in Rule 6C4-10.010, F.A.C. Any failure to comply with the grievance procedures was rectified by the instant hearing which afforded Petitioner an ab initio airing of his grievance with an opportunity for him to present all his evidence and to confront, before an impartial hearing officer, the witnesses against him. Since no violation of Rule 6C4-10.009 was found, and since any error resulting from an insufficiency in the grievance procedure was corrected by the instant hearing, the hearing officer is without basis or authority to award attorney's fees in this matter.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore:

RECOMMENDED that Petitioner, Peter P. McKeown's, grievance against the University of South Florida School of Medicine arising from his removal as Chief, Cardiothoracic Surgery Division in the Department of Surgery be denied.

DONE AND ENTERED this 19th day of January, 1996, in Tallahassee, Florida.

ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 19th day of January, 1996.

APPENDIX TO RECOMMENDED ORDER IN CASE NO. 95-1832

The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case.

FOR THE PETITIONER:

1. - 7. Accepted and incorporated herein.

1. Though the documents in question refer to appointment, in actuality the personnel action was an appointment to the faculty with an administrative assignment to the position of Director of the Division.

2. & 10. Accepted.

11. & 12. Accepted and incorporated herein.

13. & 14. Accepted and incorporated herein.

1. - 19. Accepted and incorporate herein.

   1. Accepted and incorporated herein.

   2. Accepted.

   3. Rejected as inconsistent with the better evidence of record.

   4. Accepted.

   5. Accepted and incorporated herein.

   6. Rejected as inconsistent with the better evidence of record.

   7. & 27. Accepted.

1. & 29. Accepted and incorporated herein.

   1. Accepted.

   2. Accepted and incorporated herein.

FOR THE RESPONDENT:

1. - 9. Accepted and incorporated herein.

   1. Accepted.

   2. - 14. Accepted and incorporated herein.

15. & 16. Accepted and incorporated herein.

COPIES FURNISHED:

Benjamin H. Hill, III, Esquire William C. Guerrant, Jr., Esquire Danelle Dykes, Esquire

Hill, Ward & Henderson, P.A. Post Office Box 2231

Tampa, Florida 33601

Thomas M. Gonzalez, Esquire Thompson, Sizemore & Gonzalez

109 North Brush Street, Suite 200 Post Office Box 639

Tampa, Florida 33601

Olga J. Joanow, Esquire University of South Florida

4202 East Fowler Avenue, ADM 250

Tampa, Florida 33620

Noreen Segrest, Esquire General Counsel

University of South Florida

4202 East Fowler Avenue, ADM 250

Tampa, Florida 33620-6250

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should consult with the agency which will issue the Final Order in this case concerning its rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency which will issue the Final Order in this case.

Docket for Case No: 95-001832

Orders for Case No: 95-001832