Dep’t of Correction v



Dep’t of Correction v. Aquino

OATH Index No. 188/07 (Dec. 15, 2006), modified on penalty, Comm’r Decision (Feb. 22, 2007), appended

Correction officer twice addressed a superior in a profane and aggressive manner, disobeyed an order to leave the area, and submitted a misleading report about these events. ALJ recommends a 10-day suspension. Commissioner increases penalty to a 15-day suspension

______________________________________________________

NEW YORK CITY OFFICE OF

ADMINISTRATIVE TRIALS AND HEARINGS

In the Matter of

DEPARTMENT OF CORRECTION

Petitioner

- against -

ALBERT AQUINO

Respondent

______________________________________________________

REPORT AND RECOMMENDATION

ALESSANDRA F. ZORGNIOTTI, Administrative Law Judge

This is an employee disciplinary proceeding referred by petitioner, the Department of Correction, pursuant to section 75 of the Civil Service Law. Respondent Albert Aquino, a correction officer, is charged with using profane, abusive, and disrespectful language with Captain Rudolph John, failing to obey the captain’s order to stop using such language and to leave the area, removing his shield and challenging Captain John with profane language to take the shield from him, and for filing a misleading report about this incident in violation of the Department’s Rules and Regulations (ALJ Ex. 1).

A hearing was conducted before me on October 23, 2006. In support of the charges, petitioner presented Captain John and documentary evidence. Respondent presented Correction Officer Albert Bullock and also testified on his own behalf and denied the allegations. I find that petitioner has demonstrated that respondent addressed Captain John twice in a profane and aggressive manner, that he disobeyed an order to leave the area, and that he submitted a misleading report about these events. I recommend that respondent be suspended for 10 days.

ANALYSIS

Respondent has been a correction officer since 1996 and is assigned to sanitation detail. As part of his duties, respondent supervises inmates in cleaning the facility.

Captain John testified that on August 22, 2005, he was conducting a tour of building 4 at 2:10 a.m., and saw four inmates walking unescorted down the corridor toward the housing area. The inmates were carrying food items including chicken, milk, and cereal (Tr. 24). When questioned, the inmates told Captain John that they were returning from paint detail. Captain John ordered them to go back to where they came from and told them not return without an escort (Tr. 9, 25). The inmates had been assisting respondent with power-washing showers (Tr. 9, 50-51). Three inmates went back as directed and one stayed behind in protest (Tr. 10, 25). Captain John asked Officer Bullock to stand with the objecting inmate, pat him down, and write an infraction. He then left the area and continued on his tour (Tr. 10, 26).

When Captain John returned 10 minutes later, he observed Officer Bullock speaking to Officer Fields about the infraction. Officer Bullock then asked Captain John what infraction the inmate committed (Tr. 14, 87-88). Captain John told Officer Bullock that he should know what to write and to just write the infraction. Officer Fields told Bullock to stop behaving like a rookie (Tr. 27, 88).

While the officers were speaking about the infraction, respondent arrived with the other three inmates. Captain John ordered the inmates, who were still carrying food, to face the wall and ordered Officers Bullock and Fields to pat-frisk them (Tr. 55, 85-86). Respondent testified that, pursuant to then-Deputy Warden Davis’s instructions, he had provided the inmates with milk and cereal as payment for their work in assisting him. Respondent denied that he gave the inmates chicken (Tr. 53, 60-61). Because Captain John objected to the inmates bringing food into the housing area (Tr. 29, 33), the food was tossed on the floor (Tr. 56). Captain John then told Officers Bullock and Fields to pick-up the food and throw it away. Respondent intervened and had an inmate pick up the food from the floor and throw it into the garbage (Tr. 31-32, 62-63, 89, 100). The inmates were then allowed into the housing area (Tr. 101).

Captain John testified that as he was leaving, respondent approached and loudly stated that he wanted to talk (Tr. 27). Captain John told respondent to tone his voice down or to leave the area. According to Captain John’s report, respondent then stated: “fuck that you will listen to me anyway, you don’t know anything about a work detail [,] you don’t have enough time here to tell me what to do [,] you will never fucking disrespect me” (Pet. Ex. 5). Respondent testified that he explained to Captain John that he had given the inmates milk and cereal and that he never raised his voice or cursed at his supervisor (Tr. 50, 56, 58, 72). Captain John walked away and left the area (Tr. 13, 58).

When Captain John returned five minutes later, respondent was still in the corridor and the Captain told him that he was in an unauthorized area and to leave (Tr. 13-14, 58). Captain John testified that respondent refused his order and that while he was writing down respondent’s shield number, respondent removed his shield, tapped it on his notepad and said something to the effect that “my fuckin’ name is Aquino” and “I don’t give a fuck what you want to do” (Tr. 14; Pet. Ex. 5). Respondent denied that he was disrespectful towards the Captain (Tr. 59, 76). According to Captain John, Officer Fields attempted to calm the situation by pulling respondent aside and by explaining to him that respondent was going through some personal problems. Officer Fields then “ushered” respondent away (Tr. 14, 46; Pet. Ex. 5). Respondent testified that he left the area when told and that Officer Fields did not need to remove him (Tr. 59, 64). As respondent was leaving, Captain John instructed him to submit a written report (Tr. 14, 58; Pet. Ex. 5).

Respondent testified that he returned to the sanitation shop and wrote a report but that Captain John did not specify what he wanted written (Tr. 63-64). The report states that “at approximately 0330 hrs. Captain John order [sic] this writer for a report at this time writer was escorting work detail inmates to building 4 where they are house [sic]” (Pet. Ex. 6).

Captain John continued on his tour and when he returned he made a log entry at 4:55 a.m. (Tr. 14-15, 37). Captain John specifically noted that he ordered “Aquino 14729 to submit a written report explaining his reason for verbally abusing this writer and refusing to leave an unauthorized area when ordered to” (Pet. Ex. 3).

Captain John requested reports from Officers Fields and Bullock which were received on September 5, 2005 (Pet. Exs. 7 & Resp. Ex. A).

It is well established that not every disagreement with a supervisor, or expression of dissatisfaction, is misconduct even when voices are raised and emotions are vented. Dep’t of Correction v. Laboy, OATH Index No. 783/96 (Aug. 12, 1996), modified on penalty, NYC Civ. Serv. Comm’n Item No. 00-90-M (Aug. 10, 2000); Human Resources Admin. v. Bichai, OATH Index No. 211/90 (Nov. 21, 1989), aff’d, NYC Civ. Serv. Comm’n Item No. CD90-54 (June 15, 1990). Whether or not the behavior rises to the level of misconduct depends on the manner, tone and content of the exchange. Dep’t of Correction v. Martin, OATH Index No. 431/95 (Jan. 17, 1995); Dep’t of Correction v. Stokes, OATH Index No. 663/91 (Mar. 11, 1991), modified on penalty, Comm’r Dec. (July 12, 1991). It is the substance of the disagreement, as well as the words and tone used within the context of the conversation that must be evaluated. Arguably, the use of profanity is misconduct per se. Dep’t of Buildings v. Cortes, OATH Index No. 577/90 (Feb. 9, 1990).

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). Here, a preponderance of the credible evidence supports a finding that respondent violated Department rules, which require that officers promptly obey lawful orders and that they do not act disrespectfully toward a supervisor.

I found Captain John to be a credible witness. Even though Captain John’s testimony was vague and at times confusing, I attribute this to the lapse in time from the date of the incident and inadequate trial preparation rather than a lack of credibility. While Captain John’s testimony was not as detailed as his report, which was made the day of the incident, he was consistent on both direct and cross-examination that respondent approached him in a loud and aggressive manner and that he used profanities. There was no evidence presented that Captain John had a motivation to lie about his interaction with respondent. Respondent and Officer Bullock acknowledged that they have never had a problem with Captain John and respondent stated that there is no “bad blood” between them (Tr. 76-77, 97).

On the other hand, respondent’s claim that he was never disrespectful to Captain John was self-serving and not credible. I found respondent’s portrayal that he stood calmly by while the inmates were stripped of the food he had just given them incredible in light of respondent’s extensive explanation concerning the practice of giving inmates food for work performed. Indeed, respondent asserted that Captain John has “an on-going thing” with the sanitation officers and that he constantly “nags” them about the inmates’ shirts not being buttoned and their failure to display their ID cards (Tr. 81). It is reasonable to conclude that respondent perceived Captain John’s actions to be those that undermined him in front of inmates he supervises and that respondent reacted angrily to this provocation.

Moreover, Officer Fields’ report stating that there “was a very loud discussion going on with Captain John and the officers as to what the inmates can’t and can have, what is considered permissible contraband and what is and not excessive” and that respondent “was expressing his opinion and experiences he had witnessed how other senior officers worked their details” provides corroboration, along with Captain John’s report, that respondent was aggressively challenging the Captain about work detail (Pet. Exs. 7 & 5). Officer Bullock also agreed that the conversation between Captain John and respondent was “loud” and testified that they were speaking about “rules and how the procedures should run” (Tr. 90, 92). I found Officer Bullock’s report and testimony that he did not observe respondent cursing at Captain John and that he could not remember the particulars of this incident to be incredible (Tr. 89-90, 93; Resp. Ex. A). Officer Bullock was a reticent witness and I credit Captain John’s assertion that the officer told him prior to trial that he would not testify against a fellow officer (Tr. 48-49). Based on this record, I find that it is more likely than not that respondent challenged Captain John concerning food for the inmates and that in doing so he twice addressed the Captain in a profane manner and disrespectfully tapped his shield on the Captain’s notebook.

I also find that respondent refused Captain John’s order to leave the area. 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).

I found credible Captain John’s testimony that during their initial encounter, he ordered respondent to lower his voice or to leave the area. This testimony was consistent with Captain John’s log book entry and his report which were written the same day (Pet. Exs. 3 & 4). I also find that after respondent’s first outburst, Captain John stepped away from the area in an effort to de-escalate the situation and that when he returned a few minutes later, respondent was still standing in the corridor. Respondent admits that Captain John told him to leave but claims that he was not in an unauthorized area and that he immediately complied with the order. Even though respondent was initially in the housing area to escort inmates from work detail, once the inmates were inside the housing area he no longer had a reason to be there. Moreover, I credit Captain John’s account that he had to repeatedly direct respondent to leave and that he did so only after Officer Fields escorted him away.

Finally, I find that respondent filed a misleading report about this event. 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 actual events in question. See, e.g., Dep’t of Corrections v. Rodriguez, OATH Index No. 277/06 (Mar. 29, 2006). Since I have already found that respondent was disrespectful to Captain John and that he refused an order to leave the area, the first prong has been met. Respondent’s argument that he was not told specifically what to write is contradicted by Captain John’s notation in the log book which states that respondent was directed to provide a written report explaining his reason for verbally abusing him and refusing to leave the area when ordered. Respondent’s one-line report stating that he escorted inmates from work detail to the housing area was woefully inadequate in light of the detailed reports subsequently filed by Officers Bullock and Fields. Even though respondent denied the allegations made by Captain John, at a minimum, his report should have contained some reference to the fact that he gave work detail inmates food which was confiscated by Captain John, and that this caused a discussion with a supervisor. Accordingly, I find that respondent’s report, while not false, was certainly incomplete and therefore, misleading.

FINDINGS AND CONCLUSIONS

1. On August 22, 2005, at 2:10 a.m. respondent conducted himself in an unbecoming manner in that he approached Captain John in an aggressive manner and addressed him in a profane, abusive, and disrespectful manner.

2. On August 22, 2005, respondent disobeyed a direct order from Captain John to leave the area.

3. On August 22, 2005, respondent conducted himself in an unbecoming manner in that he again spoke to Captain John in a profane manner and disrespectfully tapped his shield on the Captain’s notebook.

4. On August 22, 2005, respondent wrote a misleading report pertaining to the above events.

RECOMMENDATION

Upon making these findings, I obtained and reviewed an abstract of respondent’s work history for purposes of recommending an appropriate penalty. Respondent has been employed by the Department as a correction officer since 1996 and has no prior disciplinary record.

In this proceeding, respondent has been found guilty of insubordination in that he addressed a captain twice in a profane and aggressive manner and disobeyed an order to leave the area. In addition, respondent has been found to have filed a misleading report about these events. Petitioner seeks a suspension of ten days for the profane and disrespectful actions, ten days for failing to obey the a captain’s order, and 12 days for filing a misleading report for a total of a 32-day suspension.

A review of prior cases involving similar misconduct reveals that penalties range from termination, Dep’t of Correction v. Bowens, OATH Index No. 172/91 (Dec. 10, 1990), aff’d, 186 A.D.2d 494, 589 N.Y.S.2d 412 (1st Dep’t 1992) (termination recommended for officer found guilty of disrespectful behavior toward supervisors on two occasions, failing to obey an order and submitting a false report, in conjunction with prior disciplinary record), to a five-day suspension, Dep’t of Correction v. Aiken, OATH Index No. 797/95 (Mar. 8, 1995) (in view of respondent’s good record over nine year tenure, guilty finding on disrespect charge and failure to obey an order commanded five-day penalty).

Where, as here, there has been a refusal to comply with a lawful order and discourteous and disrespectful behavior, the recommended penalty has been a ten-day suspension. Dep’t of Correction v. Gurrieri, OATH Index No. 1841/02 (Nov. 15, 2002) (ten-day suspension for an officer who walked away from a captain saying “I’m not listening to this shit,” and for submitting a report about an earlier meeting with the captain); Dep’t of Correction v. Ziegler, OATH Index No. 2471/99 (Jan. 13, 2000), aff’d, NYC Civ. Serv. Comm’n Item No. CD00-105-SA (Nov. 15, 2000) (ten-day suspension for shouting at a captain, “you always do this” and telling her that her interference made him “look like a chump” and, if the inmates attacked her he “would not have her back”); Dep’t of Correction v. Bluemke, OATH Index No. 320/92 (Jan. 7, 1992), aff’d, NYC Civ. Serv. Comm’n Item No. CD 94-11 (Feb. 18, 1994) (ten-day suspension recommended for directing profanity at superior officer who intervened during incident with inmates); cf. Dep’t of Correction v. Smagler, OATH Index No. 1313/00 (June 13, 2000) (where respondent was disrespectful but used no profanity and did not disrupt the orderly operation of the jail, a seven-day suspension was recommended).

Respondent is employed in a para-military atmosphere in which the correction officer holds the lowest uniform rank. The officer is bound to comply with the orders of a superior officer and to treat superior officers with deference and respect. Dep’t of Correction v. Vanderpool, OATH Index No. 191/93 (Dec. 4, 1992). Here, respondent’s comments and actions towards the captain were made in front of other officers and were indeed egregious. While respondent’s actions should not be minimized, this is respondent’s first offense and there are mitigating factors which merit keeping the penalty at a ten-day suspension.

This tribunal has recognized that there are circumstances when an employee should receive a minimal punishment, particularly on the first occasion that misconduct occurs.  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”). In addition, a fair penalty must take into account the particular circumstances of the incident and individual mitigating factors, as appropriate.  Transit Auth. v. Madsen, OATH Index No. 121/98 (Sept. 5, 1997); see also Admin. for Children’s Services v. Goodman, OATH Index Nos. 986/05 and 1082/05 (Aug. 12, 2005) (respondent’s lack of a prior disciplinary record is a mitigating factor). Dep’t of Correction v. Passe, OATH Index No. 1917/02 (Jun. 4, 2003) (respondent’s 13-year tenure and clean record are mitigating factors which must be taken into account in assessing penalty).

Respondent is a ten-year employee with no prior disciplinary record. Respondent’s misconduct appears to be an aberration and an overreaction to what he believed to be provocative and improper actions by Captain John with regard to the other officers and his work detail. Captain John, a self-proclaimed “stickler for the rules” (Tr. 106), admitted that it was improper for him to order Officers Fields and Bullock to pick-up the food that he ordered tossed on the floor (Tr. 32). I found Captain John’s testimony that the inmates were carrying chicken not credible and the Department did not rebut respondent’s assertion that he had been given permission by a deputy warden to give inmates milk and cereal for power washing the showers. Moreover, I was not persuaded by Captain John’s testimony that it was necessary to strip the inmates of this food prior to their entering the housing area at 2:00 a.m. Captain John’s actions had the effect of undermining respondent’s authority in front of work detail that he regularly supervises. Thus, respondent’s reactions were triggered by the Captain’s rather overzealous involvement. While not excusable, this misconduct should be viewed in light of these circumstances, as well as respondent’s good record and long tenure. I propose that a ten-day suspension is adequate punishment for the misconduct proven here and that it should serve to correct this sort of misbehavior in the future.

Because the proven infractions arose from the one incident, I have considered the recommendation as one penalty. See Dep’t of Correction v. Buford, OATH Index No. 388/02 (June 17, 2002), aff’d, NYC Civ. Serv. Comm’n Item No. CD03-49-SA (June 12, 2002) (ten-day suspension for officer, with no prior record, for failing to timely take his post, shouting at a captain that he was not going to take the “f---ing” post, and for filing an untimely report because the proven infractions arose from one incident).

Accordingly, I recommend that respondent be suspended for ten days.

Alessandra F. Zorgniotti

Administrative Law Judge

December 15, 2006

SUBMITTED TO:

MARTIN B. HORN

Commissioner

APPEARANCES:

ALBERT CEVA, ESQ.

Attorney for Petitioner

BRIAN COLEMAN, ESQ.

Attorney for Respondent

Department of Correction’s Decision, February 22, 2007

______________________________________________

THE CITY OF NEW YORK

DEPARTMENT OF CORRECTION

Petitioner

- Against -

ALBERT AQUINO

Respondent

______________________________________________

MARTIN F. HORN, Commissioner

ACTION OF THE COMMISSIONER

Respondent, Correction Officer Albert Aquino, on August 22, 2005, conducted himself in a manner unbecoming an officer by aggressively approaching Captain Rudolph John and addressing him in a profane, abusive, and disrespectful manner. Respondent then disobeyed a direct order from Captain John to leave the area. Then Respondent again conducted himself in an unbecoming manner in that instead of obeying that direct, lawful order, he again spoke to Captain John in a profane manner and disrespectfully tapped his shield on the Captain’s notebook. Finally, Respondent wrote an incomplete and misleading report regarding the above events.

As set forth in the attached OATH Report and Recommendation and Charges and Specifications, Respondent Albert Aquino was found guilty of each specification, namely specifications #1, #2, #3 and #4, contained in DR # B0020/2006 after a hearing at OATH with a recommended penalty of ten (10) days.

Based on the record in this matter, I adopt the findings of fact by Administrative Law Judge Alessandra F. Zorgniotti. In terms of mitigation here, I also note that Respondent had no prior disciplinary history since his appointment to the Department in 1996, and have taken that into account during my penalty review. Nonetheless, for the reasons stated below, I view the recommended penalty of ten suspension days as insufficient.

Respondent’s initial gross and profanity-laden insubordination reflects a malicious and radical disrespect for his supervisor’s lawful authority that is entirely inimical to the discipline requisite in a paramilitary organization. “The DOC is a paramilitary organization in which respect for rank for a superior is critical.” Department of Correction v. Williams, OATH Index # 2274/04. Respondent’s gross and profanity-laden insubordination merits an enhanced penalty. Department of Correction v. Buford, OATH Index # 388/02, aff’d NYC Civ. Ser. Comm. # CD03-49-SA (10 day suspension for officer who failed to promptly obey order to assume post, was disrespectful to supervisor and who used profanity); Department of Correction v. Bluemke, OATH Index #320/92, aff’d NYC Civ. Ser. Comm. CD94-11-SA (Respondent, who did not have prior disciplinary history, suspended 10 days for verbal disrespect and profanity directed towards captain.

Moreover, Respondent engaged in his profane and abusive behavior on front of one, if not two, other correction officer, meriting a stronger sanction here. Department of Correction v. Gurrieri, OATH Index #1841/02, aff’d NYC Civ. Ser. Comm. #CD03-91-SA (10 day suspension where misconduct consisting of insubordination and discourtesy towards a supervisor, which troubled ALJ and merited strong sanction in that it took place in front of at least two other correction officers).

An aggravating factor in this case is Respondent’s additional misconduct wherein he intentionally files an incomplete and misleading report, thereby demonstrating his attempt to conceal his misconduct. Respondent’s report reads, in full, “On August 22, 2005, at approximately 0330 hours Captain John order (sic) this writer for a report (sic) at this time writer was escorting work detail inmates to building 4 where they are house (sic).” As Judge Zorgniotti noted on page 5 of her decision, “Even though Respondent denied the allegations made by Captain John, at a minimum, his report should have contained some reference to the fact that he gave work detail members food which was confiscated by Captain John, and that this caused a discussion with a supervisor. Accordingly, I find that respondent’s report while not false, was certainly incomplete and therefore, misleading.”

Accordingly, Respondent’s submission of the incomplete and misleading report warrants an enhanced penalty. See e.g., Department of Correction v. Crawford, OATH Index # 339/03 (30-day suspension for being AWOL one day, making unauthorized stops while logged out for medical appointment and for submitting misleading and inaccurate report concerning the Respondent’s whereabouts.)

Therefore, for all of the above reasons, the penalty of suspension of fifteen (15) days is impose for the violation of Department rules and regulations as set forth in Specifications #1, #2, #3, and #4 under DR # B0020/2006.

MARTIN F. HORN, Commissioner, Department of Correction

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