Rhodes v. Dep t of Correction OATH Index No. 227/05 (July 14, 2005) Petitioner, a former probationary correction officer, had been terminated in connection with a use of force incident. Petitioner sought to have his record cleared of the charges against him, alleging that the findings upon which his termination was based were false. ALJ found that petitioner did not meet his burden, and recommended that petitioner s name not be cleared. NEW YORK CITY OFFICE OF ADMINISTRATIVE TRIALS AND HEARINGS In the Matter of STEPHEN RHODES Petitioner - against - DEPARTMENT OF CORRECTION Respondent REPORT & RECOMMENDATION RAYMOND E. KRAMER, Administrative Law Judge On June 3, 2002, petitioner, Stephen Rhodes, was terminated from his position as a probationary correction officer in connection with a use of force incident. Pursuant to the respondent, Department of Correction s, designation, and the April 4, 2003 decision of the Supreme Court, New York County, in Rhodes v. Fraser (ALJ Ex. 1), the above-captioned matter was referred to OATH for a name-clearing hearing. The hearing was held before me on November 5, and December 7, 2004. The parties submitted written summations on January 13, 2005. After evaluating the testimony and evidence presented at the hearing, I find that petitioner did not meet his burden, and I recommend that petitioner s name not be cleared. ANALYSIS Generally, a civil servant may be terminated during his probationary term without specification of reasons or a hearing. Talamo v. Murphy, 38 N.Y.2d 637, 382 N.Y.S.2d 3 (1976). However, where a non-tenured employee has been stigmatized in the course of termination of employment, the employee may be entitled to a name-clearing hearing. See Codd v. Velger, 429 U.S. 624, 97 S. Ct. 882 (1977). The sole purpose of this hearing is to give petitioner an opportunity to
-2- clear his name. This tribunal lacks authority to recommend reinstatement. Napoleoni v. Police Dep t, OATH Index No. 1520/02 (Nov. 8, 2002)(Napoleoni I), quoting Bd. of Regents v. Roth, 408 U.S. 564, 573 n.12, 92 S. Ct. 2701, 2707 n.12 (1972); citing Codd v. Velger, 429 U.S. 624, 97 S. Ct. 882 (1977); Hill v. Edelman, 92 Misc. 2d 485, 401 N.Y.S.2d 697 (Sup. Ct. Albany Co. 1977). The burden of proof in this proceeding is on the petitioner. Napoleoni v. Police Dep t, OATH Index No. 1482/03 (Aug. 29, 2003)(Napoleoni II), quoting Marzullo v. Suffolk Co., 97 A.D.2d 789, 468 N.Y.S.2d 530, 531 (2d Dep't 1983); citing Bergstein v. Bd. of Educ., 34 N.Y.2d 318, 357 N.Y.S.2d 465 (1974); Fluker v. Alabama State Bd. of Educ., 441 F.2d 201 (5th Cir. 1971); Matter of Johnson, OATH Index No. 409/84 (Feb. 25, 1985). Thus, petitioner must prove that the Department s decision to terminate his employment was based on a falsehood. Petitioner Stephen Rhodes began his employment at the New York City Department of Correction on June 1, 2000 (ALJ Ex. 1). He was obligated to serve a two-year probationary period before becoming a permanent employee. On June 3, 2002, petitioner was terminated in connection with a use of force incident occurring on April 27, 2002, prior to the completion of his probationary period (ALJ Ex. 1). Prior to that incident, petitioner had received satisfactory or above satisfactory performance evaluations, although Deputy Warden Shaw indicated that petitioner should continue in his position as a probationary correction officer pending improvement, specifically, pending continued good attendance record during the rest of the evaluation period (Pet. Exs. 1, 2; Tr. 13-14, 29). Petitioner had been out sick on eight days during the period beginning July 26, 2000 and ending May 6, 2001 (Pet. Ex. 2; Tr. 30). On April 27, 2002, petitioner was working in the Adolescent Reception Detention Center (ARDC), Modular 8 North (the adult side), as the B officer, walking the floor and monitoring inmates (Pet. Ex. 3; Tr. 14). Modular 8 North is an open dormitory area, holding approximately 50 inmates (Tr. 15-16). Officer Utsey-Smith was the stationary A post officer, stationed in the bubble (Tr. 16). Petitioner was wearing a protective vest, to guard against stabbing or heavy blows to the torso (Tr. 16). At approximately 3:30 p.m., petitioner conducted an inmate count (Tr. 17). He testified that he asked the inmates to sit on their beds to be counted, but one inmate, Ming Huang, refused to sit down. Petitioner testified that inmate Huang said, F[uck] you I don t have to rush for you.
-3- Petitioner again told inmate Huang to sit down on the bed. At that time, the inmate was arm s length from petitioner (Tr. 17). When the inmate repeated, F[uck] you. I don t have to rush for you (Tr. 18), petitioner notified Officer Utsey-Smith that he was having a problem with the inmate. He requested that Officer Utsey-Smith call a captain in anticipation of a use of force. He then told the inmate that he was writing an infraction for disobeying a direct order and being disrespectful. Petitioner testified that at that point, the inmate said, F[uck] you, you re not going to do nothing, and punched petitioner in the chest. Petitioner then punched the inmate in the face, knocking him to the ground, where the inmate remained until the probe team arrived and took him to the clinic (Pet. Ex. 3; Tr. 18, 20). Petitioner maintained that the inmate s aggression was unexpected and spontaneous and that he had no choice but to defend himself. Petitioner testified that he did not use his chemical spray because he was too close to the inmate (Pet. Ex. 7, Dep t of Correction Directive 4510R-A V[D][3][Aug. 8, 1998][ Hand-held units should not be used at a distance of less than four (4) feet ]; Tr. 20). The incident took place about 4 or 5 feet from the bubble where the A officer sits, not near the inmate s bed. The incident took place within the view of the other inmates, who were all sitting on their beds (Tr. 43-45). The log book entry from the time of the incident indicated assault on staff (Tr. 125; Pet. Ex. 5). Petitioner testified that he experienced a swollen wrist and soreness and pain in his chest as a result of the incident, both of which he reported to the clinic doctor immediately following the incident (Pet. Ex. 3; Tr. 20, 22). Officer Marc Allen, a member of the probe team, recalled that when he arrived on the scene, he asked if petitioner was okay and petitioner told him that he had some shortness of breath (Tr. 54). Petitioner subsequently filed a worker s compensation claim, in which he indicated that he had difficulty breathing because of a bruised chest caused by an inmate assault (Pet. Ex. 4; Tr. 23-24). He did not miss any work time because of the incident (Tr. 38). The medical report, written by Dr. Nicholas Pantea, indicated in a section entitled subjective data (complaint) that petitioner was assaulted by an inmate. The doctor noted petitioner was ambulatory. In a section entitled assessment (diagnosis), the doctor indicated petitioner was experiencing stress induced raise in the blood pressure and increased heart rate, as well as nonspecific T wave EKG abnormality. The doctor recommended rest and release from duty to
-4- seek private medical care (Pet. Ex. 4). Petitioner claims he was punched in an area covered by his protective vest. He did not see any other physician, and was not x-rayed or otherwise treated for any injury (Tr. 41). Captain Anita Bryant, the captain who investigated this incident, testified that when she interviewed petitioner in Mod 8 immediately following the incident, petitioner admitted to her that he had punched the inmate in the face because the inmate owed him two beef sticks in exchange for two cigarettes petitioner had given the inmate the week before (Tr. 62). Petitioner did not mention to her at that point that the inmate had assaulted him, that he was injured, that the inmate had refused to sit on his bed as ordered or that petitioner intended to write an infraction against the inmate (Tr. 64, 68). Inmate Huang and other inmates Captain Bryant interviewed corroborated petitioner s initial account, that petitioner and inmate Huang had been bartering for cigarettes and food, and that petitioner became angry because of a disagreement with inmate Huang over the terms of the bartering (Tr. 67-68). Captain Bryant did not credit petitioner s formal account of the incident, that he was the victim of an inmate assault, because of his initial admission to her, which was consistent with the inmate accounts and the lack of any corroborating evidence for his subsequently claimed injuries. No indication of chest pain or wrist or chest injury appeared in the doctor s report of his examination of petitioner (Tr. 96-97). Moreover, Captain Bryant rejected petitioner s claim that force was necessary because he had notified Officer Utsey-Smith just before the incident of a possible use of force, and thus had time to use his chemical spray or withdraw from any confrontation (Tr. 68). Based on her investigation, Captain Bryant recommended that petitioner should be charged with misconduct. Petitioner was charged with unnecessary use of force, undue familiarity, inefficient performance of his duties, and bringing discredit upon the Department. Because he was still a probationary employee, he was not granted a hearing at OATH. Rather, his case was presented to the Committee on Uniformed Personnel (COUP), which voted unanimously to sustain the charges against him. Petitioner was terminated from his position with the Department on June 3, 2002 (Pet. Ex. 10; Tr. 27).
-5- At the name-clearing hearing, petitioner denied that he was involved in any kind of transaction with the inmate or that he had any discussion with the inmate about food, money or cigarettes. He also denied admitting to Captain Bryant that he had been involved in bartering with the inmate or that he struck the inmate in anger because the inmate owed him food (Tr. 25-26). Petitioner claims that the captain s testimony that he made such admission was false and that the inmates who stated that he was bartering with inmate Huang were also lying (Tr. 35). Petitioner further claims that Captain Bryant s conclusions about what occurred were faulty and based on false premises (Tr. 37). The A station officer, Leona Utsey-Smith, testified that she heard petitioner give the inmate an order to sit on his bed to be counted, although she did not see what was going on (Tr. 141, 150). Her view from the bubble was partially obscured by paper postings on the glass window (Tr. 146). She confirmed that petitioner asked her to call the control room because he was having a problem with an inmate (Tr. 142). She did so, and a probe team was dispatched (Tr. 143). However, she did not witness the force incident. The evidence petitioner presented at the hearing was insufficient to meet his burden of showing that his termination was based on false information. Captain Bryant s conclusions were reasonable, and were clearly based on relevant and plausible facts developed from her investigation. The investigation was comprehensive - all of the witnesses and potential witnesses to the incident, including inmates and officers, were interviewed and/or submitted written reports or statements. Petitioner s version of events was primarily based on his own uncorroborated assertions. Petitioner was clearly an interested party, with obvious potential motives to conceal any wrongdoing from respondent. Captain Bryant considered and rejected respondent s version of events for credible reasons, which petitioner failed to demonstrate were flawed or false. Captain Bryant previously considered the reports and statements of both of petitioner s witnesses during her investigation. Neither one witnessed the incident and they provided no new information at the hearing. As noted, the captain also interviewed and took written statements from inmate Ming and several other inmate eyewitnesses to the incident. Inmate Ming s statement, corroborated by three other inmates, made it clear that petitioner struck him without provocation and out of anger over a dispute regarding bartering which had occurred between the two of them. Most
-6- significantly, Captain Bryant testified, as she previously noted in her investigatory report of this matter, that despite petitioner s subsequent claims that he was the victim of an unprovoked inmate assault, he initially admitted to a different scenario to her - that he struck the inmate in anger after a dispute over some beef sticks that the inmate allegedly owed him for cigarettes that he had given the inmate previously. I credited the captain s recollection of this admission, despite petitioner s denial that he ever made it. The admission was consistent with the core of the various inmates accounts of what occurred, notwithstanding certain minor discrepancies in those accounts noted by petitioner. The captain s reliance on this admission, along with the other evidence, to conclude that respondent committed an unprovoked inmate assault, was engaged in improper bartering with an inmate and made false statements in the subsequent investigation of this matter, was certainly appropriate and reasonable. Furthermore, petitioner s assertions that he was attacked by inmate Ming were not supported by the doctor s report, nor any eyewitness accounts other than petitioner s own. The doctor s report noted no complaint by petitioner of injury to his chest or wrist, nor evidence of such injuries; nor would a chest bruise or injury seem plausible given that petitioner was wearing a heavy protective vest at the time. Although petitioner noted that he complained of chest pain in his incident report and worker s compensation forms, both drafted the same day as the incident, those statements were made well after-the-fact when petitioner had time to consider the potential consequences of his actions and thus had a strong motive to falsely deny any wrongdoing. By contrast, none of the respondent s evidence was discredited or undercut by petitioner s account of the incident. Indeed, petitioner offered nothing at the hearing that had not already been previously considered and rejected by Captain Bryant and reviewing superiors. Moreover, the captain concluded and the COUP Board apparently concurred, that even by his own account respondent violated the Use of Force Directive (Directive 5006) because he anticipated a use of force incident and had the time to walk away from the inmate and go over to the A station officer to ask her to call for the area captain. Captain Bryant reasonably concluded that if respondent had already safely withdrawn from confrontation with the inmate, he should not have returned to the inmate and initiated a further verbal exchange, rather than simply waiting for the captain to arrive. Whenever the use of force is anticipated and the inmate does not pose an
-7- immediate threat, a supervisor shall be notified and all actions shall be under his/her direction. Dir. 5506, Iv (C) (Jan. 25, 1999) (emphasis added). The Directive further advises officers, among other things, to keep a safe distance when conflict with an inmate arises, as an alternative to use of force. Dir. 5506, V (A) (2). Petitioner failed to do so, by his own account, and indeed claimed to be too close to the inmate to even safely use his chemical spray, another preferable alternative to a resort to physical force. In short, nothing that petitioner presented at the hearing made Captain Bryant s report or conclusions any less plausible, nor clearly demonstrated that any of the critical information she relied upon was false. Ultimately, it is not this tribunal s position here as it is in disciplinary hearings to decide which of two different versions of events is the most likely. Rather, this tribunal need only decide whether petitioner adequately discredited respondent s reasons for terminating him. I find that petitioner failed to do so. RECOMMENDATION I recommend that petitioner s request to expunge any references to his disciplinary termination from his employment records and to clear his name, be denied. July 14, 2005 SUBMITTED TO: MARTIN F. HORN Commissioner APPEARANCES: KOEHLER & ISAACS LLP Attorneys for Petitioner BY: LIAM CASTRO, ESQ. PAUL MILLER, ESQ. Attorney for Respondent RAYMOND E. KRAMER Administrative Law Judge