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Dep’t of Correction v. Whyte

OATH Index No. 1055/05 (Oct. 14, 2005)

Respondent, a long-term correction officer, found to have engaged in multiple acts of misconduct, including insubordination, discourtesy toward a fellow officer, and failure to remain on or resume post. Termination of employment recommended.

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NEW YORK CITY OFFICE OF

ADMINISTRATIVE TRIALS AND HEARINGS

In the Matter of

DEPARTMENT OF CORRECTION

Petitioner

- against -

SHARON WHYTE

Respondent

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REPORT AND RECOMMENDATION

FAYE LEWIS, Administrative Law Judge

This is a disciplinary proceeding referred by petitioner, the Department of Correction, pursuant to section 75 of the Civil Service Law. Respondent, Sharon Whyte, a correction officer at the George R. Viernon Center (“GRVC”), is charged with engaging in numerous acts of misconduct, relating to incidents on February 2, 2002 (B0274/2002), August 16 and 17, 2004 (BO476/2004), August 25 and 26, 2004 (BO499/2004), September 15, 2004 (BO485/2004), September 20-22, 2004 (BO546/2004), and October 14, 2004 (BO573/2004). The charges span a range, from discourtesy toward a fellow officer, insubordination toward supervisors, failure to remain on or resume a post, providing false written reports, and soliciting a report from an inmate without authorization.

A hearing was held on four dates, April 11, April 12, April 14, and April 19, 2005. Petitioner presented the testimony of 22 witnesses. Respondent testified in her own behalf and presented three witnesses. The record was left open for the submission of written summations and three post-trial affidavits, and closed on April 29, 2005. As set forth below, I find that most of the charges are sustained, but not those involving false reporting or soliciting a report without authorization. I recommend that respondent’s employment be terminated.

ANALYSIS

February 2, 2002- conduct unbecoming, insubordination (BO274/2002)

This charge alleges that on February 2, 2002, respondent: engaged in a verbal confrontation with Correction Officer Harriet Aycock (specification one); refused to turn over a document regarding inmate assignment when ordered to do so by Captain Guy Brown (specification two); and failed to timely submit a report as required (specification three).

Officer Aycock and respondent were both assigned to the Anna M. Kross Center (“AMKC”) on the day in question.[1] Officer Aycock was assigned to the main clinic as the A officer, and respondent was assigned as the inmate assignment officer. According to respondent, as the inmate assignment officer, she was responsible for the assignment and placement of inmates to various “jobs” within the facility. It was undisputed that certain inmates, including those with narcotics offenses, were not permitted to “work” within the clinic. It was not contested that respondent learned that a particular inmate, Anthony Thomas, was working within the clinic; that she believed that his placement there was inappropriate due to a prior narcotics conviction; that she challenged Officer Aycock over the inmate’s placement; that Officer Aycock disagreed with her assessment; that the two officers had a disagreement; that a captain, Captain Brown arrived on the scene, questioned both officers, and ordered both officers to submit a report; and that respondent submitted a report (Pet. Ex. 47), which was dated February 8, 2002, but time-stamped February 15, 2002.

As to the areas in dispute, Officer Aycock claimed that respondent raised her voice, was disrespectful, and used profanity. Respondent admitted that she raised her voice, although she claimed that Officer Aycock did as well (Tr. 624). For various reasons, I find that specification one, alleging respondent’s use of disrespectful language and demeanor, is sustained. First, Officer Aycock (who testified from home via conference call because she was out on sick leave) testified quite credibly and in some detail about the encounter. According to Officer Aycock, respondent had gotten “verbal and very loud in a nasty tone,” indicating, “Only I can change the fucking tour for an inmate” (Tr. 354). Officer Aycock told respondent not to talk to her like that, and respondent called her a “fucking rookie” and a “new jack,” meaning, a new officer with no authority to change anyone’s assignment. Officer Aycock again objected to respondent’s tone and use of language, and respondent again retorted with profanity (Tr. 354). Officer Aycock claimed to have maintained a level tone while respondent cursed at her (Tr. 371). She asked respondent to leave but respondent said that she was “not fucking leaving anywhere” (Tr. 355). At that point, a civilian, Pat Jones, came out of her office, overheard the conversation, and returned to her office to telephone Captain Brown, who arrived and asked what had happened.[2] Respondent said that Officer Aycock did not know who she was “dealing with,” and, more profanely, that she did not know who she was “fucking with” (Tr. 356). Although Officer Aycock’s initial report did not allege that respondent used profanity, it did indicate that respondent had been “very loud” and had shown “disrespect” towards her (Pet. Ex. 33). In a subsequent affidavit, submitted three years later, after Officer Aycock was contacted by counsel’s office, she detailed the incident, including the use of profanity (Pet. Ex. 34).

Although Officer Aycock failed to allege the use of profanity in her initial report, Captain Brown testified that she was “adamant” at the time that he arrived on the scene that respondent had used profanity (Tr. 454). Moreover, Captain Brown recalled respondent using profanity (which he detailed in an earlier memorandum (Pet. Ex. 44)) to explain that she did not care what the civilian, Ms. Jones, wrote in a memorandum (Tr. 457). Petitioner also introduced a report by an Officer Moore, who corroborated Captain Brown’s testimony about what respondent said about the civilian. Officer Moore further wrote that respondent was very “angry” at Officer Aycock and told her that “she was fucked up” (Pet. Ex. 45). Based upon Officer Aycock’s and Captain Brown’s testimony, I find that respondent used profanity in arguing with Officer Aycock.

Moreover, apart from her use of profanity, it was apparent that respondent was loud and confrontational in arguing with Officer Aycock. Officer Aycock was apparently loud as well, according to both Officer Tony Watkins, who was also working in the clinic (Tr. 519), and Captain Brown (Tr. 454). However, Ms. Jones, the civilian, who was in the closest physical proximity to the two officers, and who seemed to have witnessed the dispute from the beginning, testified that respondent had “stood up over Aycock, very loud,” that her voice caught the attention of the security officer and various inmates on a bench, who listened to the dispute, and that Officer Aycock’s response was “minimal” compared with respondent’s (Tr. 444, 445). Although not every verbal confrontation with a co-worker rises to the level of misconduct, respondent’s behavior toward Officer Aycock was sanctionable, as she used profanity and raised her voice loudly enough to be overheard by inmates who were present. Compare with Health & Hospitals Corp. (Lincoln Medical & Mental Health Center) v. Thomas, OATH Index No. 531/04 (May 4, 2004); Health & Hospitals Corp. (North Central Bronx Hospital) v. Diaz, OATH Index No. 783/02 (Apr. 8, 2002) (comments to co-workers which were not made in the presence of patients not misconduct). Thus, specification one, alleging that respondent engaged in a verbal confrontation, is sustained.

I do not find, however, that specification two is sustained. Specification two alleges that respondent refused to turn over a document regarding inmate assignments when ordered to do so by Captain Brown. Captain Brown testified that he told respondent to provide him with “proof” that the inmate in question could not work as requested by Officer Aycock, that respondent said that she would get the proof, that he waited a while, but she did not return, and that she never provided the documentation. It was not clear from his testimony that respondent specifically refused to provide this document, or whether she could simply not locate it. Moreover, Captain Brown’s testimony that respondent did not return with the document was inconsistent with the statement in his complaint report that respondent returned with a document, that he ordered her to turn it over immediately, and that she claimed that she needed a copy and would give him the original once she made a copy, but never did (Pet. Ex. 43). Given this major discrepancy, specification two was not proven and is not sustained.

Specification three, alleging that respondent failed to timely submit a report, is sustained. Captain Brown testified that respondent was supposed to submit a report by the end of her tour, but that he did not receive it until February 15, 2002, after it was left in the control room window (Tr. 457). Respondent admitted submitting the report late, but testified that she went on jury duty for about a week, right after the incident with Officer Aycock (Tr. 593). However, respondent did not specify when she went on jury duty and it does not follow that if she went on jury duty immediately following the incident, which was February 2, for about a week, that the report would not be submitted until February 15, 2002. Nor did respondent explain why she could not have submitted the report by the end of her tour on February 2, 2002.

August 16-17, 2004 – insubordination, failure to conform to uniform policy BO476/2004)

This charge alleges that on August 16 and 17, 2004, respondent reported unfit for duty because her hair fell below the top of her shirt collar (specifications one and three), and that, on August 16, she refused to comply with an order to adjust her hair and was disrespectful toward the captain issuing the order (specification two). Directive 2270, which governs uniform and equipment specifications, provides that correction officers “shall wear their hair in a style that does not fall below the top of the shirt collar and allows for the wearing of the regulation uniform cap to fit squarely on the top of the head with the center of the visor directly over the nose.” Directive No. 2270, III (BB).

It was undisputed that on August 16, 2004, while present at a roll call for an institutional search at GRVC, respondent wore her hair in corn rows, braided to her scalp, and going down her spine, below her shirt collar, but tucked into her undershirt. Although respondent contended that she was not in violation of the uniform policy because her hair was tucked under, rather than over, her shirt collar, the policy expressly prohibits officers from wearing their hair in a style that falls “below the top of the shirt collar.” Respondent’s hair, although under her shirt, indisputably fell below her shirt collar, and, thus, specification one, alleging that she was in violation of the uniform policy, is sustained.

Specification three, alleging that respondent did not conform with the uniform policy on August 17, 2004, is also sustained, given ADW Pennye Jones’s unrebutted testimony that she saw respondent the next day with her hair still not in conformance with the directive (Tr. 11). This testimony corroborated ADW Jones’s observation in her complaint report, that she observed respondent wearing her hair on October 17 “donned in the same manner as the previous day” (Pet. Ex. 1).[3]

Specification two, which alleges that respondent was insubordinate in refusing to adjust her hair to conform to the uniform directive, is sustained as well. It was not disputed that ADW Jones (then a security captain) told respondent that her hair was in violation of the uniform policy. Respondent admitted that ADW Jones told her to “pin . . . up” her hair, but that she did not do so because her hair was under her undershirt (Tr. 522). She acknowledged further that she “just walked away” from ADW Jones, into the programs area, about five feet away (Tr. 522). Respondent testified that she could not “pin” up her hair because hair pins and bobby pins are considered contraband, and she indicated the same in her ordered report (Pet. Ex. 2). However, she acknowledged that she did not ask ADW Jones for clarification (Tr. 599).

ADW Jones testified that she told respondent to “place her hair up,” and that respondent became “boisterous,” said that “it was bull shit,” and walked away. Captain Aaron Evans, who was also present before the roll call, heard ADW Jones order respondent to fix her hair, but did not testify as to the specific language used by ADW Jones, and thus did not corroborate respondent’s assertion that ADW Jones told her to “pin up” her hair. Although he did not corroborate ADW Jones’s testimony as to respondent’s use of profanity, the captain’s testimony suggested that something along those lines may have occurred: “I don’t know if she [respondent] mumbled something as she walked away” (Tr. 30).[4]

Whether or not respondent used profanity, it is apparent that she was in violation of the uniform policy, that ADW Jones told her to fix her hair, and that, rather than complying, she walked away. Even if ADW Jones told her to “pin up” her hair, respondent could not simply ignore her directive. If respondent felt that she could not “pin up” her hair, because so doing would involve the use of contraband, i.e., bobby pins and hair pins, she needed to ask ADW Jones for clarification. Along these lines, it should be noted that there was ample testimony in the record about other methods of securing hair above the collar, such as “scrunchies” (Jones: Tr. 14) or headbands (Evans: Tr. 28).

In sum, all three specifications of this charge are sustained.