ARBITRATION
DECISION NO.:
470
UNION:
OCSEA, Local 11, AFSCME, AFL-CIO
EMPLOYER:
Department of Rehabilitation
and Correction,
Correctional Reception Center
DATE OF
ARBITRATION:
June 15, 1992 and
July 29, 1992
DATE OF
DECISION:
October 6, 1992
GRIEVANT:
Curtis Guard
OCB
GRIEVANCE NO.:
27-05-(91-12-02)-0176-01-03
ARBITRATOR:
Anna DuVal Smith
FOR THE
UNION:
Patrick A. Mayer,
Field
Representative,
Advocate
Ronald Brown,
Correction
Officer,
Second Chair
FOR THE
EMPLOYER:
David Burrus,
Labor Relations
Specialist,
Southeastern
Correctional
Facility, Ohio
Department of
Rehabilitation
and Correction,
Advocate
Rodney Sampson,
Asst. Chief of
Contract
Compliance, Ohio
Office of
Collective
Bargaining,
Second Chair
KEY WORDS:
Removal
Inmate Abuse
ARTICLES:
Article 24 - Discipline
§24.02-Progressive
Discipline
§24.04-Pre-Discipline
FACTS:
The grievant, a
corrections officer at the Correctional Reception Center, was removed for a
variety of rule infractions flowing from three incidents of alleged inmate
abuse and intimidation which allegedly occurred in January 1991 in the R-2
unit. The grievant had no prior
discipline in the year he was employed at CRC.
Inmate B told a
relative he had been raped, and both CRC and the Ohio Highway Patrol investigated
this charge. The Pickaway County
prosecutor declined to prosecute, and the Ohio Highway Patrol closed the case
on October 21. However, the Warden,
believing that a preponderance of the evidence demonstrated that the grievant
was guilty of various rule infractions, instituted disciplinary proceedings
against him. The infractions cited
were: Rule 8, failure to follow post
orders, administrative regulations and/or written policies and procedures; Rule
26, interfering with or failing to cooperate in an official investigation or
inquiry; Rule 43, physical abuse of an inmate; and Rule 44, threatening,
intimidating, coercing or use of abusive language toward an inmate. This disciplinary action was grieved as a
violation of Article 24 of the Contract.
EMPLOYER'S
POSITION:
The grievant was
removed for just cause. He participated
in the abuse and intimidation of two inmates who were convicted of sex crimes
involving juveniles. Inmate A was made to
lie on the floor with his hands behind his back while reading a rule book. Inmate B was subjected to similar
treatment. Then the grievant and
another officer showed Inmate A how to commit suicide by hanging and directed
the inmate to let them know when he was ready because they wanted to
watch. In addition the grievant was
present and participated during the following incidents: a cadre inmate had Inmate A carry a chair
around the pod by two of its legs while other inmates piled coats on it to
increase its weight; Inmate A was singled out and made to sit on the floor
during orientation speeches; a sergeant pulled Inmate A to an office by his
collar where the sergeant positioned his PR-24 upon himself like a penis and
taunted Inmate A about his crime, shoving the PR-24 into his mouth, and later
made him eat food off the floor; Inmate B was made to strip and do pushups
while nude and with his penis in a cup of milk, with a PR-24 placed as if to
sodomize him; the sergeant pressed his genital area to Inmate B's face and made
him fellate the baton after which the inmate's hands were kicked out from under
him and the milk was poured on him.
The
Employer accepted the premise that inmates should not be believed over staff
when the inmate statements contain inconsistencies. Nevertheless, the inmates were more credible than staff because
of discrepancies in the employees, statements concerning the incidents and
because of the consistency of inmate statements which were obtained in such a
manner as to preserve their independence.
In addition, the testimony of a former inmate, who was not directly
involved and who took time off from work to testify, was consistent with that
of the inmates.
In response to
the Union's timeliness argument, Article 24.04 permits discipline to be
postponed until the disposition of criminal charges. The delay was justified and reasonable. The institution investigation was delayed for justifiable reasons
as well, due to the turnover of wardens.
UNION’S
POSITION:
The grievant is
innocent of wrongdoing and was disciplined without just cause by an Employer
predisposed to remove him. The case
against the grievant depended solely on inmate testimony. The selective memory of the inmates and the
versions of their story they told, when not coerced, suggest that their
recollection of events eight or nine months later were what they were told to
recall. The inmates stated they wrote
statements saying they knew nothing, and these statements have mysteriously
disappeared. There are inconsistencies
on a number of points, such as who got Inmate A from his cell and whether he
was paraded around the pod while nude.
In addition, the testimony of the officers is essentially consistent.
The Union
asserted a timeliness issue, stating that the Employer should have commenced
disciplinary action long before it did.
The Highway Patrol completed its investigation in February and
communicated this to the institution yet the pre-disciplinary conference didn't
take place until October 28. In
addition the institution's investigation continued for an unusually long period
of time. The lengthiness of these
procedures suggest a vendetta against the grievant.
ARBITRATOR'S
OPINION:
As to the
timeliness issue, an ongoing criminal investigation is justification for delay
of the pre-disciplinary meeting.
Article 24.02 expressly grants the Employer the right to delay the
pre-disciplinary meeting in such cases.
As to the timeliness of the institution's investigation, Article 24.02
does not speak to this issue. There is
no management right to postpone or lengthen the investigation. However, the change in wardens was a
reasonable basis for keeping the investigation open for at least some time, and
the record does not support a claim of vindictiveness.
As to the
incidents themselves, the case must be decided on credibility. After careful examination, the arbitrator
concluded that the inmates' accounts were more credible than those of the
officers, which are rife with problems and contradictions. The investigatory interview transcripts
portray evasion, equivocation and cover-up.
The arbitrator concludes that the officers’ statement about the
incidents were self-serving, and when weighed against Inmate A’s statements
which were consistent, non-evasive and supported by credible corroboration,
they come up short.
Although the grievant's conduct on January
25 and 26 collectively constitute a first offense, Management had just cause to
remove him as a threat to the institution's security.
AWARD:
The grievance is
denied in its entirety.
TEXT OF
THE OPINION:
In the
Matter of Arbitration
Between
STATE OF OHIO,
DEPARTMENT OF REHABILITATION
AND CORRECTION
and
OHIO CIVIL SERVICE EMPLOYEES
ASSOCIATION, LOCAL 11,
A.F.S.C.M.E., AFL/CIO
OPINION and AWARD
Arbitrator:
Anna DuVal
Smith
Case:
27-05-911202-0176-01-03
Grievant:
Curtis
Guard
Removal
Appearances
For the State of Ohio:
David
Burrus;
Labor
Relations Specialist,
Southeastern
Correctional Facility,
Ohio
Department of Rehabilitation
and
Correction; Advocate
Rodney
Sampson;
Asst. Chief
of Contract Compliance;
Ohio
Office of Collective Bargaining;
Second
Chair
Nick
Chibis;
Employer
Representative,
Correctional
Reception Center;
Observer
Timothy
Johnson;
Inmate;
Witness
Leroy
Ritchie;
Inmate;
Witness
Scott
Roach;
Inmate;
Witness
Richard
Stuller;
Former
Inmate;
Witness by
subpoena
Tpr. Phil
Long;
Investigator,
Ohio State Patrol;
Witness by
subpoena
Curt
Shonkweiler;
Investigator,
London Correction
Institute;
Witness
Jon
Fausnaugh;
Investigator,
Correctional Reception
Center;
Witness
Melody L.
Turner;
Warden,
Correctional Reception
Center;
Witness
For OCSEA Local 11, AFSCME:
Patrick A.
Mayer;
Field
Representative, OCSEA
Local 11,
AFSCME; Advocate
Ronald
Brown;
Correction
Officer;
Second
Chair
Curtis M.
Guard; Grievant
James
Sutton;
Inmate;
Witness by subpoena
Rick
Penwell;
Former
Inmate; Witness
Rick
Leeth;
Former
Correction Officer; Witness
Hearing
Pursuant to the
procedures of the parties a hearing was held at 10:00 a.m. on June 15, 1992, at
the Southeastern Ohio Correctional Facility, Lancaster, Ohio and continued to
9:00 a.m., July 29, 1992, at the offices of the Ohio Office of Collective
Bargaining, Columbus, Ohio, before Anna DuVal Smith, Arbitrator. The parties were given a full opportunity to
present written evidence and documentation, to examine and cross-examine
witnesses, who were sworn and excluded.
Post-hearing closing statements were exchanged through the Arbitrator on
August 26, 1992, whereupon the record was closed. This opinion and award is based solely on the record as described
herein.
Issue
The parties
stipulated that the issue to be decided by the Arbitrator is:
“Was the removal of Curtis Guard for just cause? If not, what should the remedy be?”
No issue regarding arbitrability was presented. However, on the second day of hearing, the
Union moved to dismiss on the basis of untimeliness of discipline. Said motion was denied.
Joint
Exhibits and Stipulations
1. 1989-91 Collective
Bargaining Agreement
2. Stipulated Issue
3. Discipline Trail
including entire Pre-discipline Packet
4. Grievance Trail
5. Standards of
Employee Conduct with Grievant's Acknowledgment of Receipt
6. Ohio Highway
Patrol Investigatory Report
7. Investigatory
Interviews (also included in Joint Ex. 3)
8. Institutional
Investigatory Report (also included in Joint Ex. 3)
9. Administrative
Regulations 5120-9-01 and 5120-9-02 with Grievant's Acknowledgment of Receipt
10. Factual
Stipulations
a. Grievant's seniority date is January 29,
1990.
b. He has no prior disciplinary actions on
record.
c. He was placed on administrative leave
September 13, 1991. The
pre-disciplinary hearing was held on October 28, 1991. He was removed from pay status on October
29, 1991.
11. Incident Reports
(also included in Joint Ex. 3)
Statement
of the Case
The Grievant in
this case was discharged for a variety of rule infractions flowing from three
incidents of alleged inmate abuse and/or intimidation occurring at the
Correctional Reception Center (CRC) in Orient, Ohio. The CRC is a maximum security intake facility of the Ohio
Department of Rehabilitation and Correction.
The mission of the Department includes providing a safe environment and
humane treatment of those incarcerated at the Department's facilities. The function of the Correctional Reception
Center is to evaluate, classify and orient inmates to the rules and regulations
of the system before they are sent to other institutions. As the intake facility, it is often the
inmate's first encounter with the adult correction system.
At the time of
the incidents in January, 1991, the Grievant was a correction officer working
the second shift on the R-2 unit. He
had no prior discipline in the year he had been so-employed, and was informed
on his employer's rules, including those on use of force (Joint Ex. 5, 9).
The incidents
giving rise to the removal and subsequent grievance involve two inmates who
were allegedly victimized by the Grievant and others because the inmates were
convicted of sex crimes against juveniles.
The accusations of inmates are summarized from their testimony as
follows:
(1) On January 25, 1991, Inmate Roach was taken
to the strong cell on R-1, where he was made to stand in a search position for
some time, to lie on the floor with his hands behind his back while reading a
rule book. Officers Leeth and Guard
showed him how to commit suicide by hanging.
He was told to call them when he decided to go through with it because
they wanted to watch. Inmate Ritchie
was brought in and subjected to similar treatment with the exception of the
suicide lesson.
(2) Later that evening a cadre inmate had Roach
carry a chair around the pod by two of its legs while other inmates piled coats
upon it to increase its weight. During
the orientation speeches that followed, Roach was singled out and made to sit
on the floor. Afterwards, Sgt. Hill
pulled him to an office by his collar where he was made to do pushups, had a
tray of food thrown at him, and ordered to eat the food as a dog would. Hill positioned a PR-24 baton upon himself
like a penis, taunted Roach about his crime, and shoved the PR-24 into his
mouth. He was rehearsed as to what to
say when he got to his new unit, mildly struck several times with the PR-24 and
sent to his new unit. Officer Guard was
present and participated in this intimidation.
(3) On January 26, Inmate Ritchie was removed
from his cell and taken to an office between the R-1 and R-2 units. While there he was made to strip and do
pushups while nude and with his penis in a cup of milk, simulating sexual
intercourse. While he did this, a PR-24
baton was placed as if to sodomize him.
Sgt. Hill pressed his genital area to Richie's face and made him fellate
the baton. When he complained of being
tired, his hands were kicked out from under him and milk was poured on
him. During this episode, he was
taunted about his crime. He was then
sent to the showers, made to clean up the milk, and returned to his cell. The Grievant and Officers Leeth and Hadley
were present and participated.
The Grievant and
Leeth deny these allegations. Former
Officer Leeth testified that a number of inmates had complained about Inmate
Ritchie's body odor. What happened in
the office on the evening of January 26 was that Sgt. Hill instructed Ritchie
on personal hygiene and ordered him to take a shower. The Grievant says he was passing through the hallway from R-2 to
R-1 when he was called upon by Sgt. Hill to see to it that Ritchie took the
ordered shower. When he entered the
office he accidentally kicked a container of milk, spilling some. Officer Leeth testified he cleaned up the
milk. Both testified they knew nothing
about the incidents alleged by Roach, and deny knowledge of any abuse of
Ritchie. Hill and Hadley did not
testify.
The day after the
incident involving Inmate Ritchie, he told a relative he had been raped. This charge was relayed to the Ohio Highway
Patrol and from there to the CRC. Both institutional
and Highway Patrol investigations were launched. Tpr. Phil Long testified about the investigation he conducted
into the Ritchie allegations.
Inmate Ritchie was interviewed twice on January 28 by two different
troopers. Three other inmates and the
three officers were interviewed by the end of February. (However, the Grievant testified he never
talked to Tpr. Long or anyone from the Highway Patrol.) Between February and June Long worked on
other cases while he waited for Ofc. Hadley, who gave indications he was
holding back, to offer more information.
In the meantime,
Ronald Burford handled the investigation for CRC. Records of the early stage of Burford's investigation are
incomplete: a transcript of what
purports to be a taped interview with Ritchie (Joint Ex. 3, #4) and a
transcript of a February 10 interview with Inmate Roach (Joint Ex. 3, #6) are
part of the pre-disciplinary package, as are two reports by Burford dated June
14 and June 24 (Joint Ex. 3, #7 and 8).
Burford did not testify. Warden
Turner said that when she took command of CRC in mid-April, the Ritchie
statement was among the open cases she reviewed. The case was also brought up in a meeting with the Highway Patrol
in May. Being dissatisfied with what she
viewed as an incomplete investigation, she assigned the case to her deputies
and later to Jon Fausnaugh, the latter of whom testified. In the ensuing months the Department and
Highway Patrol investigators reinterviewed the alleged victims and the accused
staff. Statements of inmate witnesses
who had since been moved to other institutions were taken, polygraphs obtained,
and reports written. In September, the
guards were placed on administrative leave and Ofc. Hadley attempted to
resign. The case was submitted to the
Pickaway County Prosecutor and later to the City Law Director, who
declined to prosecute. Tpr. Long closed
the case on October 21, 1991.
Nevertheless, believing the investigations had developed a preponderance
of evidence that the Grievant was guilty of various rule infractions
diminishing the security of the CRC, Warden Turner instituted disciplinary
proceedings against him. A
pre-disciplinary notice was issued October 22, 1991, and the conference
conducted on October 28. The Grievant
was removed from pay status October 29, and a removal order signed November 26,
effective November 27. Infractions
cited on the order are of Rule 8 (failure to follow post orders, administrative
regulations and/or written policies or procedures), 26 (interfering with or
failing to cooperate in an official investigation or inquiry), 43 (physical
abuse of an inmate, furloughee, parolee, or probationer), and 44 (threatening,
intimidating, coercing, or use of abusive language toward an inmate,
furloughee, parolee, or probationer) (Joint Ex. 3 and 5).
This action was
grieved on December 2, 1991, at Step 3.
The grievance alleged violation of Article 24 (Discipline) and raised
issues of burden of proof, timeliness, and an increase in discipline from
suspension to removal (Joint Ex. 4).
The Grievant’s removal from pay status prior to discharge was corrected
by the Employer. The issues on the
merits and timeliness being unresolved, the grievance came to arbitration,
where it resides for final and binding decision.
Arguments
of the Parties
The Employer
The Employer
accepts the premise that inmates should not be believed over staff when the
inmate statements contain inconsistencies.
Nevertheless, it argues that the inmates here are more credible than
staff for several reasons. First, the
employees' statements contain discrepancies which ought not to exist,
particularly since the Ritchie incident occurred in a small room. Inconsistencies undermining the employees'
credibility are different versions of abusive language use, whether and amount
of milk spilled, who cleaned up the milk, Ritchie's response when told to
shower, Sgt. Hill's involvement in orientation, and how he came to be on the
unit. A second reason the inmates are
more credible is the consistency of the statements--like different views of the
same auto accident--which were obtained in such a manner as to preserve their
independence (separation, lack of forewarning, lack of explanation, etc.). A final reason to believe the inmates'
accusations is the lack of personal interest of the porter witness, who is no
longer under the control of the Department, took time off from work to testify,
and said he did so because (though he thought little of Ritchie) no one should
be made to undergo what Ritchie did.
Weighing the inconsistencies of the staff assertions against the
motivation and consistencies of the inmates' statements, Management finds the
inmates credible and urges this conclusion on the Arbitrator.
In response to
the union's timeliness argument, the Employer points out that Article 24.04 of
the Contract permits it to postpone pre-discipline until disposition of
criminal charges. Tpr. Long explained
that the delay in closing the case was the result of lack of witness
cooperation, the need to obtain polygraphs, and other constraints. Besides the delay in the collateral
investigation, the Employer's effort was affected by a change in wardens. It further states there is no valid
comparison between the instant case and the bench decision cited by the Union
in its motion to dismiss (Parties' Case No. 27-05-911230-0186-01-06, Arbitrator
Bowers re Carter). The Employer
concludes by saying the delay was justified and reasonable. It asks that the grievance be denied in its
entirety.
The Union
The Union argues
that the Grievant is innocent of wrongdoing and that he was disciplined without
just cause by an Employer predisposed to remove him.
Inasmuch as no
medical examination was ordered and no physical evidence obtained, the case
against the Grievant depends on the inmates.
Their selective memory (recalling staff, but not inmates' names, e.g..),
the method of interrogation and versions told when not coerced, suggests that
their recollection 8-9 months after the event were what they were told to
recall. All inmates said they were
interviewed in January by Burford and wrote statements saying they knew
nothing. These statements have
mysteriously disappeared. Now three say
they changed their story because of Management and peer pressure. They also disagree on a number of points
such as who got Ritchie from his cell and whether he was paraded around the pod
while nude. The Union finds discrepancies
in their statements about the Roach incident and points out that none implicate
the Grievant in this alleged humiliation.
As to the chief accuser, Ritchie lied about being raped and even
Management's first investigator, Burford, doubted his story. Compared to the credibility problems of the
inmates, the staff discrepancies are inconsequential, the Union goes on. Given the unreliability of the inmates'
statements, the notable absence of physical evidence and several witnesses such
as Ofc. Hadley, the fact that inmates support the Grievant when they are not
coerced, the impeccable record and essentially consistent stories of the officers,
the Grievant's denial of wrongdoing must be credited, contends the Union.
The Union also
takes the position that the State's investigation was circumspect at best, a
mockery of the Collective Bargaining Agreement at worst. The Highway Patrol completed its
investigation in February and communicated this to the institution, but did not
close the case for months, after no one came forward to shed more light on the
matter and the criminal justice system declined to prosecute. Internally, Burford conducted a thorough
investigation, concluding the Grievant was innocent in his June report. Nevertheless, the Warden reopened the
case. When her deputies, too, absolved
the Grievant, she gave the case to a third investigator. This investigator's conclusion is in sharp
contrast to the previous ones and rests on unreliable
evidence. The Warden, asserts the
Union, was playing a game of "gotcha.”
Her refusal to accept investigations clearing the Grievant, her
exaggeration of the truth about Ritchie's physical condition, and her removal
of the Grievant from pay status shows a vindictive attitude towards him.
The Union
contends the length of the investigation is a procedural flaw, violating
Article 24.02. Ten months is too long
under any circumstances, even with a criminal statute of limitations of seven
years and Article 24.04. In any event,
Long said he finished his investigation in February and communicated this to
the institution. It is also reasonable
to believe he so informed the Warden in May.
Finally, the
Union reviews the rules the Grievant is charged with violating and reviews the
evidence on each. It claims that on
each charge either the State has failed to prove its claim or the Union has
successfully rebutted. On Rule 8
(failure to follow orders), the State did not show how the Grievant violated
the use of force regulations. On Rule
26 (failing to cooperate in an investigation), the Grievant attended all
interviews and answered all questions put to him. Management cannot discipline him simply because it did not like
his answers. On Rule 43 (physical abuse
of an inmate), Management did not produce any evidence of abuse. On Rule 44 (threats and intimidation), the
statements of three correction officers and a sergeant with impeccable records
must be credited against those of Ritchie, Roach and the
contradictory statements of other inmates.
In conclusion,
the Union asks that the grievance be sustained and that the Grievant be
returned to his former position and awarded full back pay, benefits and
seniority.
Opinion of
the Arbitrator
The record of
this case is more voluminous than that of most removals as it includes two days
of testimony and records of several investigations spanning nine months
conducted by two different State agencies.
Despite the physical size of the record, the case boils down to really
only two issues, timeliness and credibility.
Basic notions of
fairness and Article 24.02 of the Contract dictate that "timeliness of the
Employer's decision to begin the disciplinary process" be considered in
the just-cause determination.
Ordinarily, the Arbitrator would take a dim view of the nine months
elapsing from the time the incidents were reported until the pre-disciplinary
notice was served. However, an on-going
criminal investigation could justify postponement of discipline. Indeed, Article 24.04 of the Contract
expressly grants the Employer the right to delay the pre-disciplinary meeting
in such cases:
“At the discretion of the Employer, in cases where a
criminal investigation may occur, the pre-discipline meeting may be delayed
until after disposition of the criminal charges.”
Here, the pre-disciplinary notice was issued reasonably
promptly on October 22, within two weeks after the County declined to prosecute
and
one day after the City similarly decided and the Highway Patrol closed its
case. Such does not constitute an abuse
of discretion.
The Union also
raises the issue of timeliness with regard to the investigation. Article 24.04 is specific on
pre-disciplinary meeting delays but silent on investigation delays. It thus confers no Management right to
postpone or lengthen the investigation.
The just cause standard demands that discipline investigations be both
full and fair. This means that the
Employer may neither shoot from the hip nor sit on its hands. The Union contends that Management knew the
Highway Patrol had completed its investigation in February, suggesting
Management sat on its hands until a new warden reopened the case and pursued it
in some sort of a vendetta. The record
does not support this claim, for Tpr. Long testified that although he had
conducted initial interviews by the end of February, he awaited cooperation
from a witness he thought had information crucial to the case. This is a reasonable basis for keeping an
investigation open for at least some time, as is the change in wardens that
occurred in April. That the case was
expedited thereafter, with additional witnesses being interviewed in their parent
institutions and polygraphs taken, goes more to the fullness of the
investigation than to its vindictiveness.
No motivation for Warden Turner's alleged prejudice was even suggested. I thus reject the Union's argument that a
ten-month discipline process is unwarranted under any circumstances. Perceived lack of witness cooperation,
on-going criminal investigation, and change in wardens justified
the delay in this case. However,
although I do not invalidate this discipline on the basis of an unduly delayed
or prolonged discipline process, I must point out that an employer who does not
conduct its investigation promptly does so at its own peril. Even if the Grievant's case is not
prejudiced by the Union's inability to collect timely evidence or influenced by
events occurring after the incident, the employer's own case may be weakened by
witnesses' compromised memories of events in the distant past. In this particular instance, it made the
Arbitrator's factual determination more difficult.
Lacking any
evidence but the statements and testimony of inmates and the accused guards,
this case presents extraordinary problems of credibility. Further complicating the matter are the
number of witnesses to the incidents, the number of statements taken, the delay
in taking some of these statements, and the number of investigations
involved. If this were a case of a
single inmate accusing a correction officer of forbidden acts allegedly
committed in private, the Arbitrator's job would be easier. As it stands, the case required and received
careful scrutiny of the many written statements, interview transcripts, and
oral testimony.
A result of this
examination is the conclusion that the inmates' version of the orientation on
January 25 is truthful, the officers' self-serving. No real doubt exists that this is so, at least as far as the
events that occurred up to and including Roach being taken by Sgt. Hill from
the pod to the office. I reach this result
from several directions. First,
Ritchie's and Roach's accounts could be self-serving since they both claim to
be victims of more egregious acts.
Nevertheless, their versions are consistent with one another and it is
hard to see how they might have conspired together, since Roach was removed
from the unit immediately following the incident. Corroboration of their story was looked for next. Inmate Johnson changed his account and
admits to being pressed. Former inmate
Penwell also changed his story, but to favor the Grievant. He also claims investigator pressure and
fear of inmates. The testimony of these
witnesses were troublesome for other reasons as well. Johnson's account of the Ritchie event is confused on several
points and Penwell was the only person of the many witnesses who ever claimed
one cadre warned the other when the correction officers were coming onto the
pod. The assertions of these witnesses
were set aside as unreliable. Inmate
Sutton did not remember this incident.
Other inmate statements came into the record through the discipline
trail and Highway Patrol investigative report, and investigators' testimony,
but as the inmates did not testify themselves, their statements are hearsay and
cannot be credited. Former inmate Stuller,
who is no longer under the Department's supervision, did testify, however, and
I found him credible after carefully scrutinizing his statements on the
incidents and testimony he gave before me.
His testimony is reviewed in some detail below.
Next examined
were the interviews and testimony of the correction officers, who deny
knowledge of any inmate being singled out in such a way at orientation. However, their different descriptions of the
orientation procedure give one pause:
the Grievant says he and Leeth share orientation (equally, by his
description) when possible; Leeth minimized Guard's role, maintaining that he
liked to do it himself to get it right (Joint Ex. 3, #38 & #39). Although one can believe their inability to
recall an orientation that occurred nine months previously, it is unlikely they
would differ so much about a recurring procedure unless one of them is
prevaricating. This inconsistency in
the officers' statements about the conduct of orientation undermines the
credibility of their other assertions.
Other problems with their stories causing grave doubt as to their
veracity are with regard to their versions of the Ritchie incident. These are discussed below. In conclusion, I am convinced that the
Grievant knew of and permitted the cadre's intimidation of Inmate Roach during
the orientation session. I am less
certain of the extent of his other involvement. What occurred after Sgt. Hill took the inmate to the office cannot
be determined from the record of this arbitration.
As to the events
that occurred in the strong cell earlier that day, I founder in a hopeless sea
of uncertainty created by the absence of any corroboration to inmates'
accusations and differences in what they said were their positions in the room.
The accusations
about the treatment of Ritchie the next evening, however, are supported by the
testimony of Stuller. To be sure,
Stuller did not see what occurred in the office, but what he did
see, smell and hear--the wet, nude inmate in the office, the amount of milk on
the floor and its odor, loud talking and laughing, and the nude inmate walking
through the pod--are consistent with Ritchie's version of events and in
conflict with the officers' accounts.
His story also fits Ritchie's statement that he did not know how the mop
and bucket came to be in the room. It
is true that he is not certain about the identity of the third correction
officer in the room (now known to be Hadley) and where Ritchie went after the
shower. But he was never sure about
these things and may not have been paying very close attention to the entire
episode anyway since he was watching television during part of it. He may also never have seen former Ofc.
Hadley again and so never learned his name until late in the
investigation. Stuller's most noteworthy
departure from Ritchie's story is about who got Ritchie from his cell. In September, he said "some COs,"
at arbitration he was positive they were Guard and Leeth. Ritchie and Johnson say it was Leeth alone,
as do the officers themselves. Penwell,
on the other hand, did not see who got Ritchie out, says it was one person, and
in the next sentence thinks it was Guard.
Penwell really does not know and Stuller is mistaken on this point. Despite his claim to be positive, he is
probably filling in a memory gap. This
error does no real damage to his credibility, for some mistakes and
inconsistencies are to be expected even in a truthful recollection, and this is
a minor one. In sum, Stuller
corroborates important features of Ritchie's account which are at variance
with the officers', his lapses are few and minor, and no motive for dishonesty
is apparent.
By contrast, the
officers' stories have many problems.
For example, the Grievant says he never talked to Tpr. Long. Long, on the other hand, testified he did
interview him and his investigation report documents an interview with an
officer on February 19 who told an account of the January 26 evening that
matches the Grievant’s and no one else’s.
Leeth claims the purpose of the meeting was to get Ritchie to shower
after a complaint was received. This
may, in fact, be true, but why did not Leeth, himself, order Ritchie to shower
instead of calling the sergeant onto the unit to do it for him? Additionally, if the staff did deal with
Ritchie's personal hygiene that evening (for example by telling him he stank
and ordering him to shower), it may have been in addition to, rather than
instead of, what Ritchie says they did to him.
Several witness statements suggest this may be the case. It is also far-fetched that Sgt. Hill would
get a correction officer assigned to the adjoining unit who just happened to be
passing by to escort Ritchie to the shower, when he had two other officers
already at hand. Equally mysterious are
the different statements about the spilling of the milk and who cleaned it
up. These and other discrepancies were
brought forth in arbitration and no attempt was made to explain them. Furthermore, the investigatory interview
transcripts portray evasion, equivocation and cover-up.<PAGE NAME="19">
Penwell and
Sutton, who testified in the Grievant's behalf, offer poor comfort. Sutton testified he saw Ritchie leave the
office naked while the Grievant says he was clothed. Penwell admits to changing his story twice, but expects to be
believed on this, the third version. I
conclude that the officers' statements about the incident are, like those about
the orientation incident, self-serving.
When weighed against Inmate Ritchie's statements, which are consistent,
nonevasive and supported by credible corroboration, they come up short.
Finally, I come
to what the State has proved through the testimony of Ritchie and Stuller. I do not find evidence of physical abuse and
cannot even state exactly what happened in the office on R-2 that evening. Because Ritchie's testimony is more credible
than the Grievant's does not make all of it true. Some may be exaggerated or completely fabricated. But Stuller provides circumstantial evidence
from which inferences can be drawn:
certain noises emanated from the room, a quantity of milk was on the
floor, Ritchie was dripping with it and naked, the four staff were
present. From this I am convinced that
the Grievant participated in a
pattern of harassment calculated to humiliate and intimidate this inmate using
methods incapable of detection without eyewitnesses. Moreover, his statements during the investigation cause me to
conclude that he participated in a cover-up to protect himself and the other
staff. Although his conduct on January
25 and 26 collectively constitute a first offense, Management had just cause to
remove him as a threat to the institution's security.
Award
The grievance is
denied in its entirety.
Anna DuVal Smith, Ph.D.
Arbitrator
October 6th, 1992
Shaker Heights, Ohio
ODRC171.RPT