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Dep't of Correction v. Mamon
OATH Index No. 605/07 (Feb. 8, 2007)
Charges that correction officer was asleep on post listening to a radio with headphones in his ears, had left an inner control room door unsecured, and made false statements denying the incident, were sustained. Respondent also found on another occasion to have refused a captain’s orders to return to post, to have used profanity toward the captain, and to have been out of uniform and off-post without permission. ALJ recommends 40-day suspension without pay.
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NEW YORK CITY OFFICE OF
ADMINISTRATIVE TRIALS AND HEARINGS
In the Matter of
DEPARTMENT OF CORRECTION
Petitioner
- against -
ERIC MAMON
Respondent
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REPORT AND RECOMMENDATION
JOAN R. SALZMAN, Administrative Law Judge
This disciplinary proceeding was referred by petitioner, the Department of Correction (“the Department”), pursuant to section 75 of the Civil Service Law. Respondent Correction Officer Eric Mamon has been employed by the Department as a correction officer for nearly ten years. He is charged with two events of misconduct, the first for being found asleep on post while listening to a radio with headphones, for having propped open a door inside the control room with a fire extinguisher, and with having falsely denied this conduct in his report of the incident on June 21, 2005; in the second set of charges, the Department alleges that respondent was out of uniform, used profanity to a captain, disobeyed the captain’s order to return to his post, and was off-post without authorization on November 18, 2005 (ALJ Ex. 1).
A hearing was conducted before me on November 30 and December 15, 2006. The Department presented the testimony of Captain Melissa Matthews and Deputy Warden for Operations Robert Cripps and submitted documentary evidence in support of the charges. Respondent presented the testimony of Correction Officer Wanda Roberts and testified in his own behalf. Respondent also submitted documentary evidence. For the reasons set forth below, I recommend that all charges be sustained and that respondent be suspended without pay for 40 days.
ANALYSIS
Charge I: Asleep on Post and Related Misconduct
The Department charges that on June 21, 2005, at approximately 1:30 a.m., respondent was inattentive and asleep on his post, was found wearing headphones attached to a radio without authorization; had propped open a door to the control station with a fire extinguisher and made a false or misleading report denying the incident (ALJ Ex. 1). I find that the Department has proved this charge by a preponderance of the credible evidence.
On June 21, 2005, at approximately 1:15 a.m., on a routine tour of the jail at the Adolescent Reception and Detention Center (ARDC), Captain Melissa Matthews could not gain access to the main control station of the housing area where respondent was stationed at that time (Pet. Ex. 3). To enter the main control station one must pass through two doors with a small vestibule area between them (Pet. Ex. 2). The outer door is solid metal with a small window through which one can look to see the inner door (Tr. 40, 70). This design is found on both the north and south sides of the control station.
Captain Matthews testified that she knocked and kicked on the north side outer door repeatedly and heard the telephone ringing inside the station, but she did not see an officer inside (Tr. 53). The Captain then crossed over to the south side door to the control room and repeatedly banged and kicked at that door. Captain Matthews saw through the outer door’s window that the inner door was not secured (Pet. Ex. 3; Tr. 54). The Captain did not see anybody inside the station (Tr. 55-56). She was banging and kicking the doors for about eight minutes (Tr. 53, 74-75).
Captain Matthews testified that Correction Officer Steven Capellupo heard the banging from his assigned post downstairs and came to see if there was a problem (Tr. 56). Officer Capellupo’s contemporaneous report, dated June 21, 2005, states that the captain requested the keys because she could not gain access to the control room (Pet. Ex. 4). Officer Capellupo heard the banging, came to the aid of the captain and gave her the keys. Neither party called Officer Capellupo to testify. It is probable, from Captain Matthews’ credible testimony, as corroborated by the contemporaneous memorandum from Officer Capellupo, that Officer Capellupo gave the control room keys to Captain Matthews. He had heard the banging and called the control station, but received no response (Pet. Exs. 3, 4; Tr. 56). I find it perfectly plausible that these two anomalies -- the banging on the doors above and the lack of any response to his phone call -- prompted Officer Capellupo to come upstairs to see what was the matter. Indeed, respondent testified that the Captain would have needed to obtain a set of keys to the control room to come through the secured outer door (Tr. 122; Pet. Ex. 2).
After obtaining the keys and upon entering the vestibule area between the outer and inner doors to the control station, Captain Matthews testified, she found the inner door held open by a fire extinguisher (Pet. Ex. 3; Tr. 57). She saw respondent inside the control station sleeping in a chair with his head leaning back against a wall and wearing a pair of headphones attached to a small radio: “[H]is eyes were closed shut, his mouth was open and he was snoring slightly” (Pet. Ex. 3). The Captain called respondent’s name loudly about four times, but received no response until she tapped his leg and then his arm twice, knocking his arm off the armrest, at which point he awoke. He “appeared dazed and disoriented just awakening from sleep” (Pet. Ex. 3). Captain Matthews instructed respondent to submit a report explaining his failure to secure the door, his sleeping on post and his unauthorized use of a radio and headphones (Pet. Ex. 3; Tr. 57-58). The Captain made an entry in the station logbook contemporaneous with this incident stating that respondent was asleep on his post wearing headphones and must submit a memorandum explaining his actions before departing the facility that day (Pet. Ex. 6).
Respondent’s testimony flatly contradicts Captain Matthews’. He wrote in his contemporaneous report that day that he was “conducting meal relief” to relieve the “A” officer so that officer could take a meal. Respondent also wrote that he was using the bathroom within the control station due to an “upset stomach that made it an emergency” (Pet. Ex. 5; Tr. 105). Yet respondent was very vague about the nature of this illness and made no entry in the logbook that he had had an emergency requiring him to leave his post; such an entry made at the first opportunity would have lent credence to his story (Pet. Ex. 6; Tr. 123-24). Respondent’s claim that he heard nothing of the captain’s prolonged knocking is not credible in that Officer Capellupo heard it from the floor below and brought the keys up to the captain (Tr. 56-57). Respondent contended that he did not hear the phone ringing nor the captain knocking through two “locked and secure” control station doors due to the “extremely loud and noisy air conditioning vent blowers that were on” and because the bathroom door was closed (Pet. Ex. 5; Tr. 106-7).
Respondent testified that after leaving the bathroom he saw Captain Matthews outside the control room’s inner door, unlocked it and let her in; he testified that she appeared to be angry. Respondent asserted that after he unlocked the door the captain came into the control station, made a logbook entry and then left immediately, without a word exchanged between them (Tr. 106). In his report, respondent wrote that he was “fully awake and not wearing any listening devices at anytime” as the captain alleged (Pet. Ex. 5). Respondent claimed that the incident the captain recorded in the logbook “was untrue” (Tr. 108). He denied that he was using headphones at 1330 hours, pointing out an error in the captain’s log entry, where she meant to write 0130 (1:30 a.m.), not 1330 (1:30 p.m. ). I find this error to be inconsequential, as the captain credibly explained that she corrected the error the same day at the end of her tour and initialed the correction (Tr. 59; Pet. Ex. 6).
The resolution of this charge rests on an assessment of the relative credibility of the respondent and of Captain Matthews, in light of the corroborating testimony supplied by Officer Capellupo’s memorandum,[1] and the absence of any log entry to support respondent’s version of the incident. In making a credibility determination, this tribunal will “consider such factors as 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.” 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); Dep’t of Correction v. Holston, OATH Index No. 592/04, at 11 (Sept. 29, 2004).
I find that Captain Matthews, a 14-year veteran of the Department and a captain for about two years (Tr. 52), was a credible witness and that respondent’s version of the events was not believable. There was no reason on the record before me to indicate that Captain Matthews invented this incident. Respondent contended that Captain Matthews was biased against him because on one prior occasion, they differed about when to allow an inmate to go to the Social Services office to call home about the death of the inmate’s mother or grandmother. The captain directed respondent to defer the inmate’s call two hours to the next tour of duty (Tr. 116-18). Respondent wanted to allow the inmate to call immediately to avoid any possible outburst. Even if accepted as true, as it was undisputed, this account of a one-time disagreement about the captain’s exercise of discretion with respect to an inmate provides no basis to conclude that the captain bore a grudge or deep personal bias against respondent, whose attorney posed no questions to the captain about this one cited, earlier difference of opinion.
The Department has met its burden of proof on charge one. In a disciplinary proceeding, the Department “has the burden of proving its case by a fair preponderance of the credible evidence, which has been defined as a showing that the incident in issue was ‘more likely than not’ to have occurred as credibly described.” Dep’t of Correction v. Holston, OATH Index No. 592/04, at 11 (Sept 29, 2004) (citing Bazemore v. Friday, 478 U.S. 385, 400-01 (1986)). Captain Matthews testified credibly, and in detail, as to the events that she observed. I am not persuaded by respondent’s contention that the captain is not credible because of her inability to recall minor details about the radio such as the brand, or whether it was clipped to respondent’s shirt or resting on his stomach. She was able to describe the style of headphones used (“like buds”) (Tr. 77-78). There simply was no reason adduced on this record for Captain Matthews to lie about this incident.
There is no dispute that respondent failed to respond to the captain’s knocking in her attempts to gain entry through the outer doors. I find that respondent failed to respond to the captain because he was asleep on his post, with headphones in his ears and attached to a radio, in violation of Department Rules and Regulations (1996), sections 2.30.010, 3.05.010, 3.05.120, 3.20.010, 3.20.030, 3.20.040, 7.05.090, 3.20.300, and Operations Order 01/05 (April 7, 2005) (prohibiting unauthorized electronic recording devices including radios) (Pet. Ex. 1).
The next issue is whether the inner door was propped open with a fire extinguisher or the captain was ushered in the door by respondent after he had used the bathroom. On this point, respondent argued that the captain’s testimony should not be credited because she failed to note in the logbook that the door was propped open by the fire extinguisher (Tr. 80). This argument is unavailing. Logbooks are kept in the housing areas to “chronologically record all events/ activities as they occur. . . .” (Directive No. 4514, ¶ I (Oct. 2, 1989)) for use by the Department and review by investigative bodies external to the Department.[2] Notably, the directive does not require that a housing area captain list every detail of every incident. The guidelines merely state that “[u]pon making a routine tour of inspection, the housing area Captain shall: . . . [e]nter any special instructions given to the officers on post, i.e., inmate placed on special observation (watch sheets), inmate transferred to protective custody, etc. . . . ” (Directive No. 4514, ¶ (V)(B)(1)(d)).
I decline to find that the captain’s omission in the logbook of the fire extinguisher warrants dismissal of the relevant specification of charge one. The captain’s logbook entry comports with the directive, and her memorandum written June 23, 2005 supplied all the details of the incident (Pet. Ex. 3). The logbook contains sufficient detail to put respondent on notice of the incident as to which he was requested to submit a report. It says: “C/O Mamon . . . asleep on post wearing headphones -- officer instructed to submit 600 AR explaining his actions before departing the facility today Tuesday, 6/21/05” (Pet. Ex. 6) (emphasis supplied). Respondent’s own report, completed the same day of the incident, alludes to an issue with the security of the doors even though the captain did not complete her report until two days later. Respondent thus wrote in his report that he did not hear the captain’s knocking through the “locked and secure” station doors (Pet. Ex. 5). It appears that respondent was already attempting to rebut the allegation that he had failed to secure the control room’s inner door. Therefore, I find it more likely than not that the captain conveyed her concern about the fire extinguisher to respondent when she found him that night. Moreover, respondent’s contention that the captain entered the control room, looked angry, but said nothing to him at all, then wrote in the logbook and exited the area in silence (Pet. Ex. 5), defies belief and is contrary to common sense. It is more likely that she told him what to include in his report and that he did not learn the nature of her complaint solely by reading the logbook entry. I find that respondent had the inner door of the control room propped open with a fire extinguisher, in violation of Department Rules and Regulations, sections 2.30.010, 3.05.010, 3.05.120, and 3.20.030.