OATH Index No. 1410/07 (May 22, 2007), aff’d, NYC Civ. Serv. Comm’n Item No. CD08-11-SA (Feb. 20, 2008)
Correction officer yelled at an inmate and failed to obey an order to stop yelling, placed the inmate in an unnecessary hold, and filed a false report. ALJ recommended a 35-day suspension.
______________________________________________________
NEW YORK CITY OFFICE OF
ADMINISTRATIVE TRIALS AND HEARINGS In the Matter of DEPARTMENT OF CORRECTION Petitioner - against - CURTIS PELLE Respondent ______________________________________________________
REPORT AND RECOMMENDATION
ALESSANDRA F. ZORGNIOTTI, Administrative Law Judge
This employee disciplinary proceeding was referred by petitioner, the Department of Correction, pursuant to section 75 of the Civil Service Law. Respondent Curtis Pelle, a correction officer, is charged with yelling at an inmate and failing to obey an order to stop yelling, using impermissible force by punching and placing the inmate in a hold, and filing a false use of force report, in violation of Department Rules and Regulations (ALJ Ex. 1).
A hearing was conducted before me on May 1, 2007. In support of the charges, petitioner presented Warden Sandra Langston, Captain Judith Hinton, and Captain Richard Polak. Respondent presented Correction Officer Kenneth McFarlane and testified on his own behalf. Petitioner established that respondent yelled at an inmate and failed to obey an order to stop yelling, placed the inmate in an unnecessary hold, and filed a false report. I recommend that respondent be suspended for 35 days.
ANALYSIS
This incident occurred on August 22, 2006, during the dinner feeding on 2 Main North of the Eric M. Taylor Center. This area houses inmates who have assaulted staff members (Tr.
19). The events which led up to this incident are as follows. Officer McFarlane, the A-officer posted outside the housing area, testified that he observed inmate Shaun Evans, who was assigned a work detail, cursing and shouting because other inmates did not want to be fed by him. Officer Jermaine Khealie tried to calm Evans down (Tr. 112). According to Officer Khealie’s report, he spoke to Evans who “stepped too close” (Pet. Ex. 6). When respondent went to relieve Khealie, he observed Evans acting in a belligerent manner. Respondent placed “two fingers” on the inmate’s forearm and told him to calm down and step back (Tr. 113, 141-42). According to respondent and Officers Khealie and McFarlane, Evans started calling respondent a “motherfucker” and shouting that he was going to “knock-out” or “punch” respondent for touching him (Tr. 114-15, 142; Pet. Ex. 6). Khealie told Evans to calm down. Evans went towards the day room, respondent went to his post, and Khealie went on a meal break. According to McFarlane, Evans continued to curse and threaten that he wanted to hit respondent. McFarlane gave Evans several commands to cease yelling, which he ignored. McFarlane called Captain Hinton and advised her that Evans was mouthing off (Tr. 23, 115-16).
Captain Hinton testified that she knew Evans to be “problematic” (Tr. 23). When she entered the area, Evans was near the first set of cells and respondent was about 20 feet away. Evans was upset and when she asked what the trouble was, he stated that he was not going to allow respondent “to put his hands” on him again. Before she could inquire further, respondent approached and the two men started arguing. Hinton told respondent and Evans to stop yelling but they continued to argue. She advised Evans that she was going to handcuff him and take him outside the area to speak. Evans complied with her order to place his hands on the wall. As she removed the handcuffs from her belt and reached for Evans’ left hand, respondent came from behind. She saw respondent’s “arm strike” Evans on the right side of the face (Resp. Ex. B; TR.26). Hinton was between them and Evans turned around to face respondent. Respondent reached over Hinton’s shoulder, grabbed Evans, and placed his head in the crook of his arm. She ordered respondent to let go. Inmate Jason Figueroa intervened and helped pull the men apart. Hinton ordered respondent back to his post, handcuffed Evans, who had taken a fighting stance, and removed him from the area without further incident (Tr. 24-31).
Respondent testified that when Captain Hinton entered the area, he approached because it was customary to be close by when a superior officer speaks to an inmate (Tr. 148, 159). Evans
was acting in a belligerent manner. As he neared them, he heard Captain Hinton tell Evans that if he had a problem with one of her officers, he had a problem with her. When Hinton reached for Evans, he pulled away in an aggressive manner, took a fighting stance, and made a fist. Concerned for the Captain’s safety, respondent “instinctively” grabbed Evans by the collar, pulled him away, and placed him in a bear hug. Captain Hinton ordered respondent to let go of Evans who was struggling. When he released the inmate, Evans charged knocking him into the wall. Figueroa grabbed Evans and held him until Captain Hinton cuffed him (Tr. 143-47).
Officer McFarlane testified that from outside the housing area, he observed Evans acting in a belligerent manner. When Captain Hinton attempted to reach for Evans, he pulled back aggressively. He saw respondent grab Evans by the collar and wrap his arms around the inmate’s “upper body.” McFarlane called Officer Carolina for assistance and observed Hinton escort Evans from the area (Tr. 117-19).
Use of force reports were obtained from Hinton, Khealie, McFarlane, and respondent (Pet. Exs. 4, 5, & 6; Resp. Ex. B). Evans also filed a statement saying that respondent “attacked” him and that respondent refused to listen to the Captain’s order “to get off” him (Pet. Ex. 2). Inmate Andrew Ford filed a statement saying that Evans was “loud” with respondent and that when Hinton came to solve the situation, he got “loud” with her. When respondent stepped in to calm Evans down, the inmate “pushed” respondent and the Captain cuffed Evans (Resp. Ex. I). According to Captain Polak, who investigated the use of force incident, Figueroa was scheduled to be released the next day and refused to file a statement (Tr. 93).
Evans was sent to the clinic for examination. According to the Injury to Inmate Report, Evans denied any injuries and none were visible. No medical attention was given (Resp. Ex. C). Respondent complained of pain to his left shoulder and was treated with Motrin (Pet. Ex. 1). Photographs of respondent and the inmate were taken. No injuries were visible (Pet. Ex. 3).
Warden Langston interviewed Hinton, respondent, McFarlane, and Evans. She concluded that while Evans initially engaged in verbal abuse of staff, after Evans calmed down, respondent took it upon himself to assault the inmate in the Captain’s presence. She recommended that respondent be brought up on charges. Evans was infracted and received 40 days of punitive segregation (Pet. Ex. 1).
On August 30, 2006, respondent submitted an addendum to his report denying that he “pushed” the inmate (Pet. Ex. 7). On September 11, 2006, Evans provided a second statement saying that after Captain Hinton approached him he “backed away from the Captain in an aggressive way Officer Pelle then grabbed me in a bear hold [sic]. At that time I pushed Officer Pelle into the wall” (Resp. Ex. J). These documents were not part of the use of force package completed on September 28, 2006 (Tr. 98).
The first charge alleges that respondent yelled at Evans and refused Captain Hinton’s order to stop yelling. To establish respondent failed to obey a direct order, the Department must show that: an order was communicated to respondent and respondent heard the order; the content of the order was not ambiguous; and respondent willfully refused to obey the order. Dep’t of Correction v. Graham, OATH Index No. 1380/03, at 16 (Feb. 25, 2004).
While respondent’s claim that an officer should stand by when a captain speaks to an inmate seems logical, I found his reason to approach to be an excuse to cover his real motive, which was to intimidate Evans who was complaining that respondent had touched him. Hearing Hinton tell Evans, “you’re having a problem with my officer, now you’re having a problem with me,” should have been a signal to respondent to let his superior handle the dispute. However, I credit Captain Hinton’s testimony that as soon as respondent approached, he started yelling at Evans and that when she told respondent to stop yelling he failed to do so. There is nothing in the record to contradict this testimony and the first charge is, therefore, sustained.
The second charge alleges that while Captain Hinton had Evans on the wall, respondent punched him. Respondent denies punching the inmate and alleges that he placed him in a bear hug because the Captain was in imminent danger. Resolution of these charges rests on a determination of the credibility of the witnesses. This tribunal has looked to witness demeanor, consistency of a witness’ testimony, supporting or corroborating evidence, witness motivation, bias or prejudice, and the degree to which a witness’ testimony comports with common sense and human experience in determining credibility. Dep’t of Sanitation v. Menzies, OATH Index No. 678/98, at 2-3 (Feb. 4, 1998), aff’d, NYC Civ. Serv. Comm’n Item No. CD 98-101-A (Sept. 9, 1998). I find petitioner has failed to show that respondent punched Evans.
There is no dispute that Captain Hinton ordered Evans to place his hands on the wall and that the inmate complied. I find Captain Hinton’s characterization that respondent reached over
her shoulder, punched Evans in the face, and placed his head in the crook of his arm unlikely and inconsistent with the documentary evidence. First, Evans never mentioned that respondent punched him or placed him in some sort of headlock. When he went for medical attention immediately following the incident, Evans denied any injuries and none were visible. In his written statements, Evans indicated that the force employed involved respondent grabbing and placing him in a bear hold. Evans wrote that respondent “attacked me” or “grabbed me in a bear hold” and refused to listen to the Captain’s order “to get off me” (Resp. Ex. J; Pet. Ex. 2). If Evans had been punched or placed in some sort of headlock, it is likely that he would have said so. Second, Officer McFarlane, who was watching from outside the door, stated that he observed respondent grab Evans and wrap his arms around the inmate’s upper body (Tr. 120). Third, inmate Ford made no mention of respondent punching Evans or placing his head in the crook of his arm, which is something that an inmate would likely report. In the heat of the moment, Captain Hinton most likely mistook respondent’s “arm” reaching over her shoulder as a punch. Respondent’s testimony that he grabbed Evans by the collar and placed him in a bear hug makes more sense given the physical position that the three individuals were in and is consistent with the record.
With regard to the third charge, it is undisputed that respondent placed Evans in a hold. Directive 5006R-B acknowledges that there are occasions when the use of force is necessary to defend oneself or another from attack but states that force may not be used “to punish, discipline, assault, or retaliate against an inmate.” Thus, the issue is whether respondent’s action was necessary to defend a captain from imminent physical attack or whether it was done to punish an inmate. I find that the use of force was an unnecessary touching intended to retaliate against Evans, who had been cursing and threatening respondent for touching him moments before.
I credit Captain Hinton’s testimony that she had control over the inmate who was on the wall and that she did not feel threatened by him. It appears that Captain Hinton was talking to Evans and that respondent needlessly interjected himself into the situation. It is unlikely that a Captain with 15 years experience would be oblivious when an inmate, who is known to assault staff, balls up his fist and takes an aggressive stance to strike her. I did not find Officer McFarlane’s testimony that Evans pulled away from Hinton in an aggressive manner sufficient to justify respondent’s actions. Moreover, it is unlikely that Evans would admit to aggressive
behavior and I construe his statement that he “backed away from the Captain in an aggressive way Officer Pelle then grabbed me” to mean that respondent was the aggressor. Captain Hinton credibly testified that respondent appeared angry (Tr. 52) and respondent admitted that he was upset that Evans called him a “motherfucker” and threatened to “punch [him] in the face” (Tr. 142). Although respondent attempted to show that the Captain was fabricating these charges, both Hinton and respondent acknowledged that they never had any problems with each other (Tr. 22, 162) and, at the time of the incident, she stood up for him. Rather than Hinton being embarrassed as alleged by respondent (Tr. 9, 167), it seems more likely that respondent was embarrassed because Hinton intervened on his behalf and that he grabbed Evans to punish him for cursing and threatening respondent in front of inmates and other correction officers. Respondent had a motive to justify his actions and his claim that he was protecting Hinton from imminent bodily harm was not believable.
The last charge alleges that respondent filed a false report. The first consideration is whether the underlying incident in question did in fact occur. The second is whether respondent made material deviations from the actual incident or intentionally misrepresented the events in question. See, e.g., Dep’t of Corrections v. Rodriguez, OATH Index No. 277/06 (Mar. 29, 2006). Since I have found that respondent placed Evans in an unnecessary bear hold in order to punish him, respondent’s report that he used force because he believed Captain Hinton was in imminent danger was false. Also, respondent omitted critical facts leading up to the incident as required by section 4 of the use of force report. Respondent admitted that he never mentioned that prior to the use of force he observed Evans acting in a belligerent manner towards Khealie and that he touched the inmate’s forearm and told him to calm down (Tr. 150-55). Since this initial touching and confrontation were significant events leading up to respondent’s use of force, this information should have been included in his report.
FINDINGS AND CONCLUSIONS
1. On August 22, 2006, respondent yelled at an inmate and failed to obey a captain’s order to stop yelling.
2. The Department failed to show that on August 22, 2006, respondent struck an inmate on the right side of the face.
3. On August 22, 2006, respondent used excessive force in that he placed the inmate in an unnecessary hold.
4. On August 22, 2006, respondent filed a use of force report falsely stating that force was used because a captain was in imminent danger. The report also omitted relevant information.
RECOMMENDATION
Upon making these findings, I obtained and reviewed an abstract of respondent’s work history for purposes of recommending an appropriate penalty. Respondent was appointed as a correction officer on February 12, 2004. He has no disciplinary history.
Recent penalties for impermissible use of force and related false or misleading reports have ranged from 15 days’ suspension to termination. Among the relevant factors in setting a penalty within that range are: the employee’s disciplinary record, the extent of force, the degree of provocation, if any; and the extent of any subsequent deception. See, e.g., Dep’t of Correction v. Johnson, OATH Index No. 1639/05, (Aug. 18, 2005), modified, Comm’r Dec. (Oct. 27, 2005) modified, NYC Civ. Serv. Comm’n Item No. CD07-29-M (Mar. 14, 2007) (15-day penalty where officer, with a spotless record, pushed an inmate’s head into a cell door during a struggle and submitted a misleading report about the incident); Dep’t of Correction v. Fernandez OATH Index No. 1356/06 (Sept. 21, 2006), modified, Comm’r Decision (Feb. 22, 2007) (28-day suspension where officer, without adequate warning, used spray on an inmate from less than four feet away and submitted a false or misleading report); Dep’t of Correction v. Scott, OATH Index No. 376/06 (July 10, 2006) (60-day suspension where respondent used impermissible force, relocated the inmate without approval, issued a false and misleading report, and made false statements at an MEO 16 interview); Dep’t of Correction v. Debblay, OATH Index Nos. 2008/04, 2009/04, 2011/04, & 2012/04 (Dec. 3, 2004) (officers terminated for using excessive force and participating in a cover-up, where inmate sustained multiple serious injuries); Dep’t of Correction v. Pannizzo, OATH Index No. 1691/03 (Nov. 1, 2004), modified, NYC Civ. Serv. Comm’n Item No. CD06-69-M (July 6, 2006) (40-day suspension where officer, who had a
minor disciplinary record, struck inmate on side of the head, sprayed him with a chemical agent, and falsely claimed that force was used in self-defense); Dep’t of Correction v. Woodson, OATH Index Nos. 597/04 & 603/04 (July 1, 2004) (termination of employment where officer, who had a lengthy disciplinary record, slapped, punched, and choked an inmate in response to a “smart remark” and then falsely denied the use of force); Dep’t of Correction v. Hills, OATH Index No. 632/04 (Apr. 26, 2004) (20-day suspension recommended for impermissible use of force and failure to report, noting respondent’s 20-year tenure and lack of prior discipline); Dep’t of Correction v. Romero, OATH Index No. 388/04 (Apr. 23, 2004), aff’d, NYC Civ. Serv. Comm’n Item No. CD05-46-SA (Aug. 1, 2005) (40-day suspension recommended for excessive force in which multiple blows were made after inmate was subdued, where respondent had brief four-year tenure and no prior discipline).
Here, a stern penalty is warranted. While it is understandable that respondent was angry that Evans had verbally abused him, respondent interfered with a captain who had the situation under control, engaged the inmate in a screaming match and refused his superior’s order to stop yelling, grabbed the inmate without justification and placed him in a bear hold, provided false reasons for doing so, and failed to fully disclose the circumstances leading up to the dispute. Petitioner seeks a 60-day suspension. Even though respondent has a relatively short tenure, given this is his first offense, there were no injuries, and there was no showing that he punched or placed the inmate in some sort of headlock, a 60-day suspension is excessive. This tribunal has recognized the concept of progressive discipline, particularly on the first occasion that misconduct occurs. Transit Auth. v. Ondeje, OATH Index No. 1339/04; Dep’t of Transportation v. Jackson, OATH Index No. 299/90, at 14 (Feb. 6, 1990) (“it is a well-established principle in employment law that employees should have the benefit of progressive discipline wherever appropriate, to ensure that they have the opportunity to be apprised of the seriousness with which their employer views their misconduct and to give them a chance to correct it”). Considering all of the circumstances, I recommend that respondent be suspended for 35 days.
Alessandra F. Zorgniotti Administrative Law Judge
May 22, 2007 SUBMITTED TO: MARTIN B. HORN Commissioner APPEARANCES:
DAVID K. KLOPMAN, ESQ. Attorney for Petitioner
LEVINE & GILBERT Attorneys for Respondent
NYC Civ. Serv. Comm’n Decision, Item No. CD-08-11-SA
_______________________________________________________
THE CITY OF NEW YORK CIVIL SERVICE COMMISSION
In the Matter of the Appeal of:
CURTIS PELLE
Appellant
-against-
NYC DEPARTMENT OF CORRECTION
Respondent
Pursuant to Section 76 of the New York State Civil Service Law
__________________________________________________________
SIMON P. GOURDINE, COMMISSIONER CHAIR
RUDY WASHINGTON, COMMISSIONER DAVID S. LANDE, COMMISSIONER
NORMA LOPEZ
DIRECTOR AND GENERAL COUNSEL APPELLANT- PRO SE
DAVID KLOPMAN, ESQ.
REPRESENTATIVE FOR RESPONDENT
STATEMENT
On Thursday, February 7, 2008 the City Civil Service Commission heard oral argument in the appeal of CURTIS PELLE, Correction Officer, NYC Department of Correction, from a determination by the NYC Department of Correction, finding him guilty of charges of
misconduct and imposing a penalty of 35 DAYS SUSPENSION WITHOUT PAY following an administrative hearing conducted pursuant to Civil Service Law Section 75.
COMMISSIONERS' FINDINGS:
After a careful review of the testimony adduced at the departmental hearing and based on the record in this case, the Civil Service Commission finds no reversible error and affirms the decision
and penalty imposed by the New York City Department of Sanitation.
SIMON P. GOURDINE, Commissioner, Civil Service Commission RUDY WASHINGTON, Commissioner, Civil Service Commission DAVID S. LANDE, Commissioner, Civil Service Commission February 20, 2008
