Dep't of Correction v



Dep't of Correction v. Fernandez

OATH Index No. 1356/06 (Sept. 21, 2006), modified on penalty, Comm’r Decision (Feb. 22, 2007), appended, modified, NYC Civ. Serv. Comm’n Item No. CD08-12-SA (Feb. 20, 2008), appended

Respondent violated Department rules when, without adequate warning, he sprayed an inmate with pepper spray from less than four feet away. Petitioner did not prove that respondent threatened inmate with pepper spray and submitted a false or misleading report. Fifteen-day suspension recommended. Commissioner increases penalty to a 28 day suspension. On appeal, the Civil Service Commission reduced the penalty to a ten day suspension.

______________________________________________________

NEW YORK CITY OFFICE OF

ADMINISTRATIVE TRIALS AND HEARINGS

In the Matter of

DEPARTMENT OF CORRECTION

Petitioner

- against -

RAYMOND FERNANDEZ

Respondent

______________________________________________________

REPORT AND RECOMMENDATION

KEVIN F. CASEY, Administrative Law Judge

Petitioner, the Department of Correction, brought this disciplinary proceeding under section 75 of the Civil Service Law. The Department alleged that respondent, a captain, committed misconduct by violating its rules regarding interpersonal skills; pepper spray; impermissible or excessive force; and false and misleading reports.

At a hearing on July 24, 2006, petitioner presented five witnesses and physical evidence. Respondent testified on his own behalf and also offered documentary evidence. For the reasons below, I find that petitioner proved most of the charges and recommend that respondent be suspended for 15 days without pay.

ANALYSIS

The charges arise from an incident with inmate Stephen Campbell on November 4, 2004. Because the entire episode was videotaped, there is no dispute about the key facts (Pet. Ex. 1). Two officers were escorting the inmate to a shower area, when he stopped and asked to speak with a deputy warden. As the officers held the handcuffed inmate, respondent asked him whether he was going to the shower. When the inmate failed to give a clear response, respondent issued a direct order to “take it to the shower.” The escort officers sought to move towards the shower and the inmate dragged his feet. From less than four feet away, respondent discharged pepper spray in the inmate’s face. The principal issue at the hearing was whether respondent acted in accordance with Department procedures.

This inmate was housed in the Central Punitive Segregation Unit (CPSU) at the Otis Bantum Correctional Center (Tr. 33, 36). CPSU inmates are locked in cells 23 hours a day and given a daily opportunity to take a shower (Tr. 35). According to Deputy Warden Wayman Isaacs, inmates in “three south,” where this incident occurred, are “particularly problematic” (Tr. 43). A Department investigator noted that this inmate had committed 44 infractions while incarcerated, including six assaults on staff and five charges of physically resisting staff (Tr. 113). Deputy Warden Isaacs noted that difficult inmates, such as this one, are front-handcuffed and escorted by two correction officers when they walk to the shower area (Tr. 35-36).

The videotape shows Correction Officers David Moore and Ruben Sanchez escorting the inmate (Pet. Ex. 1, 4:58:30). Each officer held one of the inmate’s arms when they approached the shower area and he announced that he wanted to speak to “the dep” (deputy warden) (Pet. Ex. 1, 4:58:33). The officers sought respondent's assistance. From across the room, respondent said, “Take it to the shower” (Pet. Ex. 1, 4:58:51).

Respondent crossed the room while shaking a small canister of pepper spray at his side. When he approached the inmate, respondent repeatedly said, “Take it to the shower,” and asked, “Are you going to the shower?” (Pet. Ex. 1, 4:58:52-54). Finally, respondent declared, “I’m giving you a direct order, take it to the shower” (Pet. Ex. 1, 4:58:55). As the officers tried to move the inmate towards the shower, the inmate resisted and pulled back (Pet. Ex. 1, 4:58:59). From approximately one foot away, respondent discharged a single burst of pepper spray towards the inmate’s face (Pet. Ex. 1, 4:59:03). The inmate immediately fell to the ground and officers promptly took him to a decontamination area where the pepper spray was washed from his face and eyes (Pet. Ex. 1, 4:59:03-5:00:50).

Respondent notified superior officers about the incident and filled out a use of force report (Pet. Ex. 6). In his report, respondent wrote that the inmate abruptly stopped on the way to the shower area and displayed a “hostile demeanor” (Pet. Ex. 6). Despite a direct order, the inmate refused to continue to the shower area. When the inmate “attempted to pull away from the escort officers,” respondent used the pepper spray to “stop further aggression and hostility towards DOC staff” (Pet. Ex. 6).

Officers Moore and Sanchez did not testify. In his incident report, Officer Moore wrote that the inmate refused to proceed to the shower area and the inmate’s failure to follow orders resulted in the use of pepper spray (Pet. Ex. 7b). Officer Sanchez wrote that the inmate “got hostile” and was sprayed after he “began to pull from the escort control hold” (Tr. 134). Both officers sought medical attention. Officer Sanchez complained of mild tenderness and swelling of his arm and shoulder and Officer Moore reported that his exposure to the pepper spray made it hard to see and breathe (Pet. Exs. 7a & 7b). According to a report prepared by the Department’s medical staff, the inmate was alert and he denied any loss of consciousness, blurry vision, or dizziness (Tr. 104). The inmate later conceded at an infraction hearing, “I popped off” (Tr. 119). There was no evidence that anyone suffered lasting injuries from the pepper spray.

After reviewing the videotape, Deputy Warden Isaacs faulted respondent for his failure to ask more questions prior to the use of force (Tr. 39-41). The trip to the shower was one of the few opportunities for a CPSU inmate to “get attention” outside the cell (Tr. 38, 51, 53). Thus, it was not unusual for an inmate to put on a “display” while pretending to go to the shower (Tr. 50-51). Inmate requests to speak with a deputy warden are generally not granted; instead, officers and captains are responsible for finding out and addressing the inmate’s issue (Tr. 39-41).

According to Deputy Warden Issacs, when respondent first approached, the inmate was non-compliant but did not post a threat (Tr. 40). Under those circumstances, respondent should have asked the inmate what he wanted to speak to the deputy warden about or why he was not going to the shower (Tr. 39-41, 53-54). Respondent failed to discuss either of those issues (Tr. 53-54). The deputy warden also claimed that respondent should have warned the inmate before using force (Tr. 54).

Instead of using alternatives to force, respondent ordered the inmate into the shower area. The deputy warden explained that the officers’ attempt to move the inmate was a use force that led to the inmate’s attempt to pull back or resist. That, in turn, led to the discharge of the pepper spray (Tr. 48, 51-52). Because the escorting officers were not wearing protective gear, the deputy warden believed that respondent should have contacted a response team to move the inmate (Tr. 40, 42, 53-55). In the deputy warden’s experience, recalcitrant inmates would “generally” walk out of an area when the response team arrived (Tr. 42).

Correction Officer Mark Mack, a chemical agent instructor at the Department’s Emergency Services Unit, discussed the proper use of pepper spray (Tr. 61). Pepper spray (oleoresin capsicum or “OC”) is a natural substance derived from pepper plants. Because the spray does not vaporize, it requires direct contact with the eyes, nose, and mouth to be effective (Pet. Ex. 3). To avoid “backsplash” or injury to staff, Department employees are trained to use pepper spray at a minimum distance of four feet (Tr. 76, 78, 80). Department rules also require the issuance of a warning prior to the discharge of pepper spray, but the manufacturer’s guidelines state that “proper tactics dictate the element of surprise” (Tr. 76).

Richard Leinhardt, M.D., a Department physician who is board certified in otolaryngology and plastic surgery, described the dangers of pepper spray (Tr. 13, 19). If someone was sprayed from a foot away, or less, it could lead to abnormal inflammation and irritation (Tr. 22). Irritation might result in damage to the cornea and “conceivably” an infection that could lead to blindness (Tr. 22, 24). Dr. Leinhardt reviewed the pepper spray manufacturer’s guidelines, but he did not examine the inmate or review any of the inmate’s medical records. Thus, he offered no opinion on the likelihood of injury in this case. He also conceded that, according to the manufacturer, there are no known lasting effects from the use of pepper spray (Tr. 30). There was no evidence that a one-second burst from close range had ever caused injury where the exposure was promptly treated.

Testifying on his own behalf, respondent recalled that he had repeated dealings with the inmate (Tr. 141). The inmate had assaulted other officers and supervisors, but he usually cooperated with respondent (Tr. 141, 152). This incident was unusual because of the inmate’s hostility (Tr. 141, 149). In respondent’s judgment, it was not prudent to engage in a prolonged discussion with the inmate in an open area outside the shower area (Tr. 141). Once the inmate was inside the shower area, respondent could talk with him (Tr. 141, 157).

According to respondent, he discharged the pepper spray because he feared for the safety of himself and others when the inmate attempted to pull away (Tr. 141, 156). Although the inmate was front-cuffed, respondent believed that he was capable of head-butting Department personnel or using his handcuffs as a weapon (Tr. 150). Respondent also testified that the inmate would have disrupted the delivery of meals and other programs if he “held the floor” (Tr. 145).

Respondent conceded that pepper spray was usually discharged at a distance of at least four feet (Tr. 144). However, respondent recalled, his back was against a railing leading to a stairway when he sprayed the inmate (Tr. 143). Thus, respondent insisted, he did not have a chance to warn anyone that he was going to discharge the pepper spray (Tr. 143).

The first specification charged respondent with inefficient performance of his duties because he ordered the escort officers to take the inmate to the shower without using “interpersonal conversation skills” to find out why he wanted to speak to a supervisor or the reason for his refusal to walk to the shower. Similarly, the second specification alleged that respondent’s failure to speak to the inmate, to determine why he wanted to speak to the deputy warden or why he refused to walk to the shower, resulted in the use of force.

Department rules require staff to use interpersonal skills before resorting to force. Unless there is a need for immediate physical intervention, alternatives “should be exhausted” before using force. Directive 5006R-A § V(A)(1). Those alternatives include keeping a safe distance and explaining consequences to an inmate. Id. § (V)(A)(1)(b),(d). The rules do not create a mandatory catechism that must be recited in all situations. But Deputy Warden Isaacs provided a general outline of how to resolve this type of dispute. Where a problematic inmate, such as Mr. Campbell, asks to speak with a deputy warden while en route to a shower, there should be some effort to find out what the inmate wants. Moreover, the inmate should be warned before force is used. Respondent failed to do either of those things.

The most striking impression made by the videotape is that respondent acted with undue haste. Mere seconds elapsed from respondent’s initial approach to the discharge of the pepper spray. With the canister in his hand, respondent walked up to the inmate and asked whether he was going to the shower. There was no serious effort to inquire further. Nor was there any warning about the consequences of failing to obey an order.

CPSU is not the town square and respondent was not required to engage the inmate in a debate. Yet there was no need for respondent’s haste. When respondent approached, the inmate was in handcuffs and in the firm grip of two officers. As Deputy Warden Isaacs noted, the inmate did not pose an imminent threat. In this context, respondent’s failure to conduct a minimal inquiry, to find out why the inmate was refusing to go to the shower or why he wanted to speak with a deputy warden, violated Department procedures. At the hearing, respondent claimed that he would have addressed the inmate’s concerns once he entered the shower area. Respondent could have mentioned that to the inmate, but he never did so.

Pointing to the deputy warden’s testimony that the response team should have been called, respondent notes that the Department considers pepper spray a lesser degree of force than control hold and take-down techniques, such as grasping or pushing an inmate. Directive 5006R-A § V(B)(2)(a),(c). Thus, respondent concludes, the use of pepper spray was not excessive. This argument ignores the Department’s chemical agent directive, which specifically prohibits the use of pepper spray to obtain compliance with a verbal order. Respondent also ignores the context of the deputy warden’s reference to the response team.

Deputy Warden Isaacs explained that forcibly removing the inmate for failure to comply with a direct order was a use of force and the response team was better equipped than the escorting officers to carry out that order. The deputy warden’s main point was that force could have been avoided. Had respondent followed Department procedures, he would have made reasonable efforts to find out what the inmate wanted or explained the consequences of his failure to go to the shower. Instead, by failing to exhaust alternatives to force, respondent created a risk of injury to the escorting officers and the inmate. This failure violated Department procedures. Hence, the first and second specifications should be sustained.

Specification three charged that respondent improperly threatened the use force when he shook the pepper spray canister. The fourth specification accused respondent of violating Department rules by failing to warn the inmate that he was going to be sprayed and discharging the spray from less than four feet away. Similarly, the sixth specification accused respondent of using impermissible or excessive force because he discharged the pepper spray at close range.

Display of pepper spray “as a threatening gesture” violates Department procedure. Directive 4510R-B § V(C)(4). Yet the Department procedures also mandate that the “subject shall be warned” before chemical agents are used. Id. § (V)(D)(1). As this tribunal has previously noted, there is some tension between the prohibition against threatening an inmate with pepper spray and the need for a warning. See Dep’t of Correction v. Angrum, OATH Index Nos. 933/05 and 934/05, at 38 (July 13, 2006).

It is not necessary to resolve that tension here. Respondent never threatened the inmate. As he approached, respondent held the canister at his side. It does not appear that the inmate spotted the canister and respondent did not announce his intention to use it. Because there was no threat to use the spray, the third specification should be dismissed.

Indeed, by his own admission, respondent did not warn anyone that he was about to use the pepper spray. Although the manufacturer recommends, for tactical reasons, that the spray should be discharged without warning, the Department’s clear rule to the contrary is controlling. Because respondent failed to issue a proper warning, he violated Department procedure. Respondent also violated Department procedure when he discharged the pepper spray from a distance of less than four feet. Directive § 4510R-B § V(D)(4).

Respondent mistakenly claimed that he lacked sufficient time to issue a warning. As respondent approached and shook the canister, there was ample time to warn the inmate and the escorting officers that he was prepared to use the spray. See Angrum, OATH 933/05 and 934/05, at 18, 40 (during struggle with inmate, captain warned officers to step back before he deployed chemical agent). Had respondent issued the requisite warning, force may have been avoided. The inmate might have become more cooperative when faced with the immediate prospect of getting sprayed in the face.

Furthermore, respondent chose to stand between the inmate and a stairway railing. By placing himself in that spot, ignoring the requirement to keep a safe distance, respondent did not leave enough room to discharge the spray. This, too, violated Department procedures. Because petitioner proved that respondent discharged the pepper spray at close range and without warning, the fourth specification is sustained.

For similar reasons, the sixth specification is sustained. Pepper spray is an important tool. It minimizes danger to inmates and staff and is especially effective against violent inmates, such as this one, who have a history of assaulting Department personnel. Despite its relative safety, the discharge of pepper spray is a use of force that causes considerable temporary discomfort. Thus, the proper use of pepper spray requires strict adherence to the Department’s procedures. Because respondent failed to follow those rules, including the requirements regarding a warning and minimum distance, his use of the pepper spray was impermissible.

The fifth specification claims that respondent submitted a false or misleading report about the incident. Petitioner failed to prove this charge. Immediately after discharging the spray, respondent obtained medical attention for the inmate and notified all appropriate supervisors. In a detailed report, prepared that day, respondent acknowledged his use of the pepper spray. His description of the incident was consistent with the events depicted on the videotape.

According to a Department investigator, respondent’s report was “not identical” to the videotape (Tr. 108). When pressed for detail, the investigator merely claimed that the inmate did not appear “hostile” as respondent had reported (Tr. 108). This claim lacks merit. To begin with, the inmate’s face is not clearly visible on the videotape. Thus, petitioner could not rule out that the inmate appeared hostile. Moreover, “hostile” is a subjective term and is not limited to war-like belligerence. It broadly includes other forms of unfriendly or uncooperative behavior. In fact, petitioner’s own witness, Deputy Warden Isaacs, conceded that the inmate tried to pull away and escape the grasp of the escorting officers. Respondent’s description of this conduct as “hostile” was not intentionally false or misleading. This specification should be dismissed.

FINDINGS AND CONCLUSIONS

1. On November 4, 2004, respondent failed to exhaust reasonable alternatives before directing two officers to use force against inmate Stephen Campbell.

2. Respondent’s failure to use alternative means of resolving a conflict led to the use of force.

3. Respondent did not improperly threaten an inmate with the use of pepper spray.

4. Respondent violated Department procedures when he discharged pepper spray, without warning, at a distance of less than four feet.

5. Respondent did not submit a false or misleading report.

6. Respondent’s discharge of pepper spray at close range was an impermissible use of force.

RECOMMENDATION

After making the above findings, I requested and reviewed a summary of respondent’s personnel history. The Department hired respondent in June 1990 and promoted him to captain in August 2003. He has received numerous awards from the Department and has been recognized as “Employee of the Month” on three occasions (Resp. Exs. A-F). His prior disciplinary history consists of command discipline two years ago and a corrective interview earlier this year.

Respondent has been found guilty of violating Department guidelines concerning the use of pepper spray. At the hearing, petitioner requested a penalty of two months’ suspension without pay (Tr. 174). That request is excessive.

Recent penalties for improper use of force have ranged from 15 days’ suspension to termination. Among the relevant factors are: the employee’s disciplinary record, the extent of force, the degree of provocation, if any; and the extent of any subsequent deception. See Dep’t of Correction v. Simmons, OATH Index No. 1352/01 (Sept. 5, 2001), aff’d, Comm’r Dec. (Oct. 31, 2001), modified, NYC Civ. Serv. Comm’n Item No. CD 03-43-M (Apr. 12, 2003) (suspension reduced from 40 to 15 days where officer, who had an unblemished 11-year career, struck an especially difficult inmate in the head); Dep’t of Correction v. Johnson, OATH Index No. 1639/05, (Aug. 18, 2005), modified, Comm’r Dec. (Oct. 27, 2005) (30-day penalty where officer, who had 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. Pannizzo, OATH Index No. 1691/03 (Nov. 1, 2004), modified, NYC Civ. Serv. Comm’n Item No. CD 06-69-M (July 6, 2006) (penalty reduced from 60 to 40 days’ suspension where officer, who had a minor disciplinary record, struck inmate on side of the head, unjustifiably sprayed him with a chemical agent, and falsely claimed that force was used in self-defense); 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 or participating in a cover-up, where inmate sustained multiple injuries including fractured ribs, cut on eye, and damage to ear drum).

The Department’s procedures deem the use of pepper spay less severe than striking an inmate with a hand or object. Thus, respondent’s penalty should be at the lower end of the range for use of force violations. Although respondent did not follow proper procedure before discharging the spray, it does not appear that his actions were malicious. He was faced with an especially dangerous and non-cooperative inmate who had a lengthy history of assaulting Department personnel. Fortunately, there were no serious injuries as a result of this incident.

In support of its request for a more severe penalty, petitioner relied upon Dep’t of Correction v. Menge, OATH Index No. 1828/01 (Oct. 10, 2001). There, a captain received a 60-day suspension for surreptitiously spraying a chemical agent into an inmate’s cell, failing to obtain medical attention for the inmate, failing to file a timely report about the incident, and falsely denying – in written report and during an MEO 16 interview – that he had used any force.

This case does not remotely resemble Menge. After discharging the pepper spray, respondent promptly obtained medical attention for the inmate and made all required notifications. Moreover, respondent filed a timely and accurate report in which he candidly admitted his use of force.

In light of all the circumstances, including respondent’s distinguished record of service to the Department and his relatively minor disciplinary history, I recommend a penalty of 15 days suspension without pay.

Kevin F. Casey

Administrative Law Judge

September 21, 2006

SUBMITTED TO:

MARTIN F. HORN

Commissioner

APPEARANCES:

DAVID KLOPMAN, ESQ.

Attorney for the Petitioner

FRANKIE & GENTILE, P.C.

Attorneys for Respondent

By: JAMES G. FRANKIE, ESQ.

Department of Correction’s Decision, February 22, 2007

______________________________________________

THE CITY OF NEW YORK

DEPARTMENT OF CORRECTION

Petitioner

- Against -

RAYMOND FERNANDEZ

Respondent

______________________________________________

MARTIN F. HORN, Commissioner

ACTION OF THE COMMISSIONER

Respondent was charged with failing to efficiently perform his duties by failing to speak with an inmate prior to his spraying the inmate with a chemical agent. He was also charged with failing to exhaust alternatives prior to using the spray, failing to warn the inmate he was going to be sprayed, spraying the inmate from a distance of less than four (4) feet and improperly threatening the inmate with the spray. The captain was also charged with submitting a false report about his and the inmate’s actions.

The gravamen of the charges relate to the captain’s impermissible force on the inmate. The respondent’s spraying of the chemical agent without having reason to constitutes an impermissible force and is prohibited by Department Directives: 4510R-A and 5006R-A.

As set forth fully in the attached Findings and Recommendations of Charges and Specifications of Administrative Law Judge Casey, Respondent was found guilty after a hearing at OATH of the violation of Department rules and regulations by failing to exhaust reasonable alternatives to force, failing to speak to the inmate and use alternatives to force, failing to warn the inmate prior to the use of a chemical agent, and using impermissible force by spraying the inmate with a chemical agent at a distance of less than four (4) feet. The Judge recommended a penalty of a suspension without pay for fifteen (15) days.

Based upon the record in this matter, I adopt the findings of fact by Administrative Law Judge, except that I find the penalty recommended to be insufficient given the findings that the respondent failed to try and resolve the conflict, failed to use alternatives to force and used impermissible force by spraying the inmate at an unsafe distance.

The recommended penalty is not adopted, because it does not adequately address the respondent’s actions. Judge Casey properly noted that the inmate did not pose an imminent threat and that there was no need for the respondent’s haste in resolving the situation. Judge Casey also stated, that since the use of a chemical agent causes considerable discomfort, “the proper use of pepper stray requires strict adherence to the Department’s procedures.”

Spraying the inmate with the chemical agent, approximately a foot from his face could have caused a significant injury. The spraying also affected a correction officer who had a hold of the inmate.

Respondent’s poor judgment demonstrates that he failed to follow specific guidelines for when force should be initiated. A penalty of a twenty-eight (28) day suspension more appropriately reflects the seriousness of Respondent’s actions of failing to resolve the situation short of using impermissible force by spraying the chemical agent.

Therefore, the penalty of twenty-eight (28) suspension days is imposed upon Respondent for violations of Department rules and regulations, as set forth in specifications under DR#514/05.

MARTIN F. HORN, Commissioner, Department of Correction

The City Civil Service Commission’s Decision, Item No. CD08-12-M, February 20, 2008

_______________________________________________________

THE CITY OF NEW YORK

CIVIL SERVICE COMMISSION

In the Matter of the Appeal of

RAYMOND FERNANDEZ

Appellant

- Against -

NYC DEPARTMENT OF CORRECTION

Respondent

Pursuant to Section 76 of the New York State Civil Service Law

_______________________________________________________

SIMON P. GOURDINE, Commissioner/Chairman

STATEMENT

On Thursday, October 18, 2007, the City Civil Service Commission heard oral argument in the appeal of RAYMOND FERNANDEZ, Captain, 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 28 DAYS SUSPENSION WITHOUT PAY following an administrative hearing conducted pursuant to Civil Service Law Section 75.

DECISION

RAYMOND FERNANDEZ, appeal from a determination of the Department of Correction (“DOC”) finding him guilty of misconduct and imposing a penalty of twenty-eight (28) days suspension without pay following disciplinary proceedings pursuant to Civil Service Law Section 75. The Commission conducted a hearing on October 18, 2007.

Appellant, a Captain, was charged with on November 4, 2004: (1) failing to exhaust reasonable alternatives before directing two officers to use force against inmate Stephen Campbell; (2) failing to speak to the inmate and failing to use alternative means of resolving a conflict that led to the use of force; (3) engaging in conduct unbecoming by threatening an inmate with the use of a chemical agent if he did not comply with his order to walk to the shower; (4) failing to comply with the chemical agent directive by failing to warn the inmate that a chemical agent would be used and failing to spray the chemical agent more than 4 feet away from inmate. (5) submitting a report about the incident that contained false and/or misleading statements regarding his actions and inmate Campbell’s actions prior to the use of force incident; and (6) engaging in conduct unbecoming a member of the Department in that spraying a chemical agent at close range was an impermissible use of force. The Administrative Law Judge (“ALJ”) sustained charges (1), (2), (4), and (6) and recommended a penalty of fifteen (15) days suspension without pay.

The Commission has carefully reviewed the record adduced below and considered the arguments on appeal. We note that Appellant has been employed by DOC since 1990 and was promoted to the rank of Captain in 2003. Appellant’s prior disciplinary record consists of a command discipline in 1994 and a corrective interview in 2006. We further note that appellant was awarded three “Employee of the Month” awards during his tenure as a correction officer.

The Commission agrees with the ALJ’s recommendation that Appellant’s penalty should be at the lower end of the range for use of force violations. The ALJ cited several DOC cases that involve use of force violations. In Dep’t of Correction v. Simmons, OATH Index No. 1352/01 (Sept. 5, 2001), aff’d, Comm’r Dec.(Oct. 31, 2001), modified, NYC Civ. Serv. Comm’n Item No. CD 03-43-M (Apr. 12, 2003), a correction officer with an unblemished 11-year career struck an especially difficult inmate in the head, and his suspension was reduced from 40 to 15 days. In the case at bar, Appellant with DOC since 1990 discharged pepper spray when faced with an especially dangerous and non-cooperative inmate who had a lengthy history of assaulting DOC personnel. We note that the DOC procedures deemed the used of pepper spray less severe than striking an inmate with a hand or object.

Therefore considering the totality of the circumstances, Appellant’s long distinguished record of service to the DOC and his relatively minor disciplinary record, we find the penalty to be excessive.

The Commission hereby modifies the determination of DOC to a ten (10) days suspension without pay. Appellant is to be reimbursed within thirty (30) days from this determination.

SIMON P. GOURDINE, Commissioner/Chairman, Civil Service Commission

NICHOLAS A. LAPORTE, Commissioner/Vice Chairman, Civil Service Commission

DAVID S. LANDE, Commissioner, Civil Service Commission

RUDY WASHINGTON, Commissioner, Civil Service Commission

NORMA LOPEZ, ESQ., Director/General Counsel, Civil Service Commission

FRANKIE GENTILE, ESQ. DAVID KLOPMAN, ESQ.

Representative for Appellant Representative for Respondent

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