ARBITRATION
DECISION NO.:
659
UNION:
OCSEA, Local 11, AFSCME, AFL-CIO
EMPLOYER:
Ohio Department of Rehabilitation and Corrections
DATE OF
ARBITRATION:
November 9 and 17, 1997
DATE OF
DECISION:
January 26, 1998
GRIEVANT:
Tony Mustard
OCB
GRIEVANCE NO.:
25‑05‑(97‑01‑13)‑0432‑01‑03
ARBITRATOR:
Ana DuVal Smith
KEY WORDS:
Agency Rules
Credibility of Witnesses
Evidence
Excessive Force
Grievant's Testimony
Inmate Abuse
Just Cause
Medical
Removal
ARTICLE:
Article 24 -
Discipline
§24.01 -
Standard
FACTS:
The
grievant was employed as a Correction Officer (CO) at the Correctional
Reception Center in Orient. At the time of the incident that led to his removal
in December, 1996, he had worked as a CO for two and one half years and had a
clean disciplinary record. The incident leading to the grievant's removal
occurred on May 6, 1996, when he responded to an "officer needs
assistance" call. A number of other officers responded to the call as
well. A struggle ensued between the grievant, an inmate, and another CO, and
the three of them fell to the ground.
The
following morning, the inmate was interviewed and photographed. Because of the
extent of the inmate's injuries, the warden ordered the chief inspector to
conduct an investigation. Following the investigation, the chief inspector
issued the Use of Force Committee Report which concluded that the grievant had
used excessive force against the inmate, and it recommended that the grievant
be disciplined. The Employer removed the grievant on December 3 1, 1996, and as
a result, this grievance was filed.
EMPLOYER’S POSITION:
The
Employer argued that the grievant failed to follow policies and procedures,
exercised poor judgment, and used excessive force against an inmate. The
inmates who witnessed the incident and who claimed that the grievant used
excessive force are credible because they did not know any of the parties
involved. Furthermore, despite the fact that the inmates who witnessed the
incident never had a chance to corroborate their stories, each version of the
incident was essentially the same a white, stocky 200‑pound CO with dark
hair ran across the courtyard, brought
the inmate to the ground, placed his knee on the side of the inmates
face, and dragged the inmate's face across the cement.
The Employer
challenged the credibility of the Union's witnesses by claiming that CO's
follow all informal code of silence in order to protect one another from
discipline. The Employer also doubted the Union's argument that the inmate's
aggression justified the grievant's use of force because the inmate was cuffed
and the other COs who responded to the call did not behave as if their
assistance was needed.
UNION’S POSITION:
The Union
argued that the grievant was only doing what was necessary and nothing more.
Employees are authorized to use force that goes beyond slight force. The Union
pointed to the fact that the inmate was a convicted felon with twelve months
"good time" at stake. The inmate was an obvious threat to the
security of the institution, and the grievant was merely ensuring his own
safety and the safety of others when he detained the inmate. Testimony of the
COs who made the call for assistance also supports the grievant's version of
the events. One of the COs testified that the inmate was resisting and
struggling to the point she feared she would lose control. Other COs stated
that the inmate was struggling violently and was combative.
The inmate
was a two‑time felon whose testimony cannot be given any credibility. His
condition on the morning of May 7 was of his own doing. The CO who first
noticed his injuries on May 7 stated
that they were “open and seeping", but the nurse who examined the
inmate on May 6 testified that the injuries should have scabbed over during the
night and that the photographs taken on May 7 revealed more extensive wounds
than what she had observed the night before.
The Union
also contended that the warden was biased against the grievant. The warden had
written that the grievant had a reputation for involvement in these types of
cases. Despite the warden's claim, there are only three cases where the
grievant used force. Two of those cases involved slight force, and the third of
which was found to be justified.
ARBITRATOR’S POSITION:
The
Arbitrator found that there was no question that the inmate involved was
injured on May 6 during his encounter with the officers in the yard. While the
inmate may have aggravated the injuries and/or inflicted new ones on himself to
improve his case against the grievant and the Employer, this would have
accounted for some of the discrepancies between what the nurse observed on May
6 and what the camera revealed on May 7.
The Arbitrator also stated that, although the testimony of an inmate is not normally credible, she would have to at least consider the testimony and subject the testimony to close scrutiny. The Arbitrator looked to the statements of others and the injuries of the inmate for corroboration. In this case, the Arbitrator found the testimony of other inmates to be credible because they did not know the grievant, they did not have a chance to collaborate their stories, and there were enough variations in their stories to make it appear that each had witnessed the event in the manner to which he testified.
In sum,
the Arbitrator concluded that the grievant over‑reacted to the situation,
possibly based on what he assumed had happened to the CO who placed the call
for assistance, and he used excessive force. The Union correctly pointed out
that an employee is authorized to use more than slight force when necessary.
The fact that the grievant was
responding to a fellow officer’s call for assistance, however, does not
mean that the grievant was authorized to use the level of force he exercised in
this situation. Furthermore, the Arbitrator did not believe that the inmate was
behaving as violently as the grievant described.
AWARD:
The Arbitrator denied the
grievance, and she upheld the removal.
TEXT OF
THE OPINION: * * *
VOLUNTARY
LABOR ARBITRATION TRIBUNAL
December
21, 1997
In the Matter of Arbitration )
Between ) OPINION AND AWARD
)
OHIO CIVIL SERVICE ) Anna DuVal Smith, Arbitrator
EMPLOYEES ASSOCIATION )
LOCAL 11, AFSCME, AFL/CIO ) Case No. 27-05-970113-0432-01-03-T
)
OHIO DEPARTMENT OF ) Tony
Mustard, Grievant
REHABILITATION & )
CORRECTONS ) Removal
Appearances
For the Ohio Civil Service Employees Association:
Dave
Justice, Staff Representative
Ohio
Civil Service Employees Association
For the Ohio Department of Rehabilitation and Corrections:
Cynthia
Sovell‑Klein
Colleen
Ryan
Ohio
Office of Collective Bargaining
**1**
Hearing
A hearing
on this matter was held at 9:30 a.m. on November 9. 1997. and continued on
November 17 at the Correctional Reception Center in Orient. Ohio before Anna
DuVal Smith, Arbitrator, who was mutually selected by the parties, pursuant to
the procedures of their collective bargaining agreement. The parties stipulated
the matter is properly before the Arbitrator and presented one issue on the
merits, which is set forth below. They were given a full opportunity to present
written evidence and documentation to examine and cross‑examine
witnesses, who were sworn or affirmed and excluded and to argue their
respective positions. Testifying for the State was Warden Gary Mohr, Lt.
Natalie Wehrs (nee Harris), Nicholas Menedis (formerly Chief Inspector, now
Deputy Warden of Franklin Pre‑Release Center), William Sizemore, Lt Shawn
Stephens and Nursing Director Robert Cotter. Testifying for the Union were
Correction Office’s Steve Helterbrand, Michael Myers and Amy L. Walker. Also
testifying for the Union were James Matson, Mary Johnson, and the Grievant,
Tony Mustard. Also in attendance was Bobby Johnson, Chapter President. A number
of documents were entered into evidence: Joint Exhibits 1‑8, State
Exhibits 1‑23 and Union Exhibits 1‑3. The oral hearing was
concluded at 11:45 a.m. on November 17. Written closing statements were timely
filed and exchanged by the Arbitrator on December 4, whereupon the record was
closed. This opinion and award is based solely on the record as described
herein.
Issue
Was the
grievant, Tony Mustard, removed for just cause?
If not,
what shall the remedy be?
**2**
Statement of the Case
The
Grievant was employed at the Correctional Reception Center in Orient, Ohio, a
facility receiving and assessing male inmates from 66 of Ohio's 88 counties. At
the time of the hearing it had processed approximately 11,000 inmates during
the year and currently housed about 2,200, including some in residential mental
treatment. At the time of the incident that led to his removal in December
1996, the Grievant had been working as a correction officer for two and a half
years and had a clean discipline record. The incident occurred during the
evening of May 6, 1996, when the Grievant responded to an "Officer needs
assistance" call while he was working second shift as "float" on
B‑3 and B‑4 units. Although the record of this case is voluminous
and convoluted, because of the many people involved and differences in their
stories, the basic events of what happened that evening are fairly
straightforward.
During.
count at about 9 p.m. on May 6. Inmate William Sizemore, who was assigned a
floor bunk in unit R‑1, was admonished by Officer Charles Gilbert to stop
bouncing up and down on his bunk. A few minutes later, the inmate was summoned
off his bunk again to talk to two other officers, Theresa Spires and Amy
Walker. The inmate harrangued the two with obscenities. Walker and Spires claim
he assaulted them, but the inmate claims he was the abused, not the abuser. In
any event the two women handcuffed and escorted him out of R‑1 unit
towards the Segregation unit. A fourth officer, CO Harrison, let the trio out
of the building and CO Gilbert placed a call for assistance. As Walker and
Spires escorted the inmate towards the unit on the opposite side of the
compound, Spires placed another call for assistance. A number of officers
responded, running across the yard towards the
**3**
trio. COs Myers and the Grievant
arrived first, followed in short order by COs Helterbrand and Dray. Myers, the
Grievant and the inmate went to the ground in a struggle. the cause and details
of which are in dispute. Dray and Helterbrand used their PR‑24s to pick
the inmate up off the ground and escort
him to segregation, accompanied by Meyers and the Grievant In segregation, they
were joined by Lt. ‑Shawn Stephens, who along with Capt. James Matson,
had observed at least part of the
incident from out‑side the captain's office. The inmate was put on the
floor and then picked up again and taken to a strong cell where he was placed
in four‑way restraints and his clothing removed. The inmate claims he was
physically abused at this point as well. Mary Johnson. LPN. examined him at
9:35 p.m., documenting abrasions and other injuries at various places on his
body. She examined him again at 10:50 p.m. when he complained of difficulty
breathing, and had him released from his restraints. Meanwhile, Myers and the
two female officers who had initiated the escort reported for medical
assessment and all officers wrote reports of the incident.
The next
morning at around 5:30 or 6:00, Lt. Natalie Harris (now Wehrs) observed the
inmate during count. She was alarmed by his appearance and reported this to her
superior and to the warden. Warden Mohr interviewed the inmate, had photographs
taken and ordered an investigation, calling in Chief Inspector Nicholas Menedis
because high-ranking officers at the facility were implicated. Menedis and his
committee interviewed those directly participating in the incident and a sample
of inmates. Menedis issued the Use of Force Committee's report on July 15,
concluding that the use of force against the inmate was excessive and
recommending that staff discipline be considered. **4**
Disciplinary proceedings ensued. Captain Matson, who was in
charge of the shift the time, resigned. Officer Walker received a five‑day
suspension (which was grieved); others were not disciplined at all. The
Grievant, however, was found to have violated a number of rules in his handling
of the inmate and participation in the investigation:
Rule 7 Failure to follow post orders, administrative regulations,
policies,
procedures
or directives .
Rule 8 Failure to carry out a work assignment
or the exercise of poor
judgement
in carrying out an assignment
Rule 24 Interfering with or failing to permit an
official investigation or inquiry
Rule 41 Use of force toward any individual under
the supervision of the
Department
or a member of the general public
Rule 43 Physical abuse of any individual under the
supervision of the
Department
He was removed on December 31,
1996. This action was grieved on January 7, 1997, and processed through the
grievance steps without resolution. Hence it came to arbitration, where it
presently resides, for final and binding decision, free of procedural defect.
As for the
inmate, he went before the Rules Infraction Board, receiving 15 days for
disobeying instructions and shoving two officers, but was released from the
institution before being returned to its general population.
Arguments of the Parties
Argument of the State
The State
argues it proved the Grievant failed to follow policies and procedures,
exercised poor judgment, interfered with an investigation and, more
importantly, used excessive force and physically abused Inmate Sizemore. The
inmates who witnessed the events are credible, it asserts, because they did not
know one another, the Grievant or the victim (who never left security until he
was released from the institution) and so had no **5**
opportunity to collaborate. Their
stories are consistent in their identification of the
Grievant
and what happened: a white, stocky, 200‑pound correction officer with
dark hair ran across the yard, side‑winded the inmate to the ground,
placed his knee on the side of the inmate's face, and dragged his face across
the cement.
The State challenges the credibility of the Union's witnesses, claiming
the correction officers are following an informal code of silence, the former
captain, who resigned in the aftermath, suspiciously cannot recall a thing, and
the nurse even admitted she was less than forthcoming during the investigation.
As to the Union claim that the inmates injuries were self‑inflicted,
the State contends it disproved this theory with Lt. Stephen's testimony about
what he saw when he entered the segregation unit his request for medical attention for the inmate, and the nursing
director's matching of the anatomicals taken on May 6 to the photographs taken
on May 7.
Regarding the Union argument that the inmate's aggression justified the
use of force, the State counters that facts show he was cuffed, correction
officers were walking behind him with little or no contact, Spires and Myers
did not behave as if their assistance was needed, and there is no evidence
about what the inmate was doing, other
than having a “sassy mouth," that
would justify use of force, let alone the injuries Wehrs and Cotter both said were
the worst they had seen.
The State notes the Warden's testimony that, considering that the inmate
was cuffed and the number of staff responding to the call, the Grievant did not
use any technique he was trained for in the Academy. He could have used other
techniques before force. The **6**
Institution is trying to reduce
the incidence of force and will not tolerate "cowboy” techniques, such as
the Grievant's. The State asks, that the Arbitrator take note of the code of
silence, find the Grievant's behavior intolerable, and sustain the grievance.
Argument of the Union
The Union
points to the testimony of Menedis, who said that because none of the inmate's
other allegations could be substantiated, the Grievant was only held
accountable for the 35‑60 seconds
of contact in the yard when the Grievant was responding to a fellow employee's
call for assistance because she felt she was in danger. It argues that the
Grievant was only doing what he bad to do, nothing more. Employees are
authorized by Administrative Rule 5120‑9‑01, Sections C and E, to
use force, beyond slight force.
Facts
about the inmate and his statement cast doubt on his allegations, claims the
Union. He was a two‑time felon with 12 months good time at stake, not a
naive newcomer to the system. His description of his alleged assailant does not
fit the Grievant, his description of the alleged blow he received is tentative,
and his breathlessness was from a phobia, not a blow. The Union also raises the
inmate's discipline record while at CRC, arguing that Management must have
agreed that he was a threat to the security of the institution.
Testimony
of witnesses to the incident support
the Grievant's innocence, contends the Union. Walker testified the inmate was
resisting and struggling to the point she feared she would lose control,
Helterbrand thought the inmate was a mental health inmate from the way he was
struggling and Myers testified be was combative. The Grievant did not **7**
strike the
inmate, be grabbed his arm, they fell to the ground, the inmate continued to
kick and thrash while on the pavement.
The inmate alleged he was abused again when they got to segregation, but
Lt. Stevens testified he did not see any of this, though he arrived only
moments later and was out of sight of the group only momentarily.
The Union submits that the inmate's condition when Lt. Harris saw him
the next morning was of his own doing. What else would he be doing on a
concrete floor under a steel cot in the dark? Harris testified his wounds were
"open and seeping," but Nurse Johnson testified his injuries should
have scabbed over during the night and that the photographs show more extensive
wounds than what she observed and documented the night before, which report
Cotter said was correct in detail and description.
The Union
contends the Warden was biased. In an article he wrote that the Grievant had a
“reputation for involvement in these types of cases," but there are only
three cases of the Grievant's use of force, two of which involved slight force
and one of which was determined to be justified. In this case, he was the only
employee of several involved who was removed. Only one other officer was
charged with anything, while the Grievant was the only one charged with using
excessive force and abuse, even though he was responding to a call for
assistance. The Union finds it unbelievable that Management can be so far
removed from what happens on a daily basis to and with front line officers. It
asks that the Arbitrator find Management violated the Contract, removing the
Grievant without just cause, that the grievance be sustained in its entirety,
and that the Grievant be made whole with reinstatement, full seniority, back
pay, lost time, overtime, shift and days off. **8**
Opinion of the Arbitrator
There being no question that the inmate was injured during the evening
of May 6, the central question is how he obtained those injuries. The answer to
this depends on who one believes.
The inmate
claims he was assaulted while still in R‑1, again in the yard, again when
he was brought in to SC/DC, and finally while in the strong cell. The State
chose not to charge the Grievant with any of these except what it says occurred
in the yard because it lacks corroborating evidence for the other alleged
assaults. I concur with the State's decision. In R‑1, SC/DC and the
strong cell, there is only the word of the inmate, which by itself cannot be
relied upon. Indeed, while there is no question in my mind that the inmate
acquired the bulk of his injuries during his encounter with the officers in the
yard, he may have aggravated them and/or inflicted new ones on himself to
improve his case against the Grievant and the State. This would account for at
least some of the discrepancies between what Nurse Johnson observed that
evening and what the camera saw the next day, although some bruises may not yet
have been apparent when she examined him.
The
question then, is what happened in the yard? Ordinarily, I would have little
problem writing off the testimony of this inmate. As the Union points out, he
was not a naive first‑offender and he did and does have something to gain
by lying. When Johnson examined him, be was already talking about a lawsuit,
and he boasted about it during the arbitration hearing. But this does not, in
itself, mean the entirety of his testimony should be written off, only that it
be subjected to close scrutiny. One looks to physical evidence **9**
and the statements of others for
points of corroboration, as well as to the inmate's statements, interviews, and
testimony. In this case, corroboration comes from other inmates, whose
statements I find persuasive for several reasons. The fact that they were new
to the system, not long at CRC and in different units at the time, reduces the
probability of collaboration, as does the fact that they did not know the
Grievant and never saw the victim after he went to segregation. Some or all of
them may have picked up gossip that they used to fill in gaps, but there are
places where they admit this (talking
at chow, what a cellmate said he saw) and other places where they also say they
could not see for one reason or another (it was dark, the group moved out of
view). On the whole, their stories vary enough to be genuine, reflecting different
perspectives and recollections, and are similar enough to corroborate the
inmate's, not the Grievant's, version of what happened. Notably, they have it
that the inmate was cuffed with his
hands pulled up high behind him, shouting obscenities, but pretty much
physically subdued when being escorted by the female officers. A short, stocky,
white officer with dark hair came running across the yard and hit him or swung
at him, after which be fell. One describes the officer's knee on the inmate's
head, grinding his face on the ground. These observations comport with what
Sizemore reported in his statement and testimony. I do take note that Sizemore
had the height of his assailant wrong, but
his bent‑over position when the women had him would hardly have given
him the perspective to make an accurate estimate, he was in front of the when
he was picked up and taken to security, and either on the floor or the bed in
security, again distorting his perspective. **10**
I also
studied the interviews. statements and testimony of the officers, but did not
find them to be reliable. Matson recalled too little and exhibited a hostile
attitude that may have colored his testimony. It is impossible for me to
believe that the female officers, whom everyone had placed as walking behind
the inmate during their escort, did not see the men fall to the ground and
never looked back once they went around the group and headed towards the
captain. As for the Grievant, himself, the transcript of his interview also
shows him to be not entirely forthcoming. This casts doubt on the veracity of
what he did say. To be sure, the officers' statements and testimony are
consistent on many points (even on some that do not make sense), but they did
have opportunity as well as motive to collaborate, much more so than the
inmates. There were also some contradictions between some of the statements
that support the State's theory of an attempted cover‑up. For example,
Lt. Stephens said that he was told there was no film for the camera, but in his
statement, Officer Myers says he got the camera but was told it wasn't needed.
In sum, what I conclude is that the Grievant over‑reacted, possibly based on what he assumed happened to Walker, used more force than was necessary with the inmate, caused him physical harm in the process, and then participated in a cover‑up. The Union is correct in that employees are authorized to use more than slight force when necessary, and that the Grievant was responding to a fellow officer's call for assistance, but I am convinced the inmate was not behaving as the officers portrayed him and that his treatment at their hand was unwarranted.
The Union
has argued that the Warden singled the Grievant out. I have carefully
considered the evidence of that. There is a use of force case involving an
inmate's charge **11**
that the Grievant beat him in
which the Grievant denied the entire episode (Ford case, Joint Ex. 7A), and for
a period of time there was as distinct pattern in the tickets the Grievant wrote
on inmates. This does not mean the Grievant was guilty in those instances, but
it does support a reputation for involvement as the Warden remarked in his
article. even though the Grievant has never been disciplined before now.
However, the fact that the Warden wrote an article about the Department's
efforts to reduce uses of force at CRC does not taint his decision to remove
the Grievant That decision stands or
falls on the quality of the investigation, the weight of the evidence, and the
seriousness of infraction, giving consideration to mitigating and aggravating
factors and treatment of similarly‑situated employees, if any. In this
case, there is no challenge to the completeness of the investigation and the
evidence convincingly establishes that the Grievant physically abused the
inmate using excessive force, an act that justifies removal for a first
offense, and then interfered with the investigation. As. for disparate
treatment, no other officer was clearly identified as having inflicted the
injuries suffered by the inmate with the possible exception of Officer Walker,
whose case is for another arbitrator and whose involvement was different than
the Grievant's. That being the case, the State did not err in choosing to
remove the individual against whom it had convincing proof of grave misconduct. **12**
Award
The Grievant, Tony Mustard, was
removed for just cause. The grievance is denied
in its entirety.
_________________________
Anna
DuVal Smith, Ph.D.
Arbitrator
Cuyahoga County, Ohio
January 26, 1998 **13**