Goddard, In re, 426-81

• Decision Date: 07 February 1983
• Docket Number: No. 426-81,426-81
• Parties: In re Grievance of Edward Lynn GODDARD.
• Court: Vermont Supreme Court

Page 637

457 A.2d 637

142 Vt. 437

In re Grievance of Edward Lynn GODDARD.

No. 426-81.

Supreme Court of Vermont.

Feb. 7, 1983.

Michael R. Zimmerman, Montpelier, for plaintiff-appellee.

John J. Easton, Jr., Atty. Gen., Marilyn Skoglund and J. Scott Cameron, Asst. Attys. Gen., Montpelier, for defendant-appellant.

Before BILLINGS, UNDERWOOD and HILL, JJ., DALEY, J. (Ret.), and COSTELLO, District Judge, Specially Assigned.

BILLINGS, Justice.

This case concerns the dismissal of the grievant, Edward Lynn Goddard, from his position as Correctional Shift Supervisor with the Vermont Department of Corrections. In July of 1980, the State dismissed the grievant for unnecessarily beating and striking a resident inmate under his care, and further for failing to report the incident to his supervisors, all in violation of the Department's stated policies and regulations. After a grievance hearing pursuant to 3 V.S.A. § 926, the Vermont Labor Relations Board found that although the bulk of the State's allegations were true, nevertheless there was no "just cause" for dismissal. Pursuant to 3 V.S.A. § 1003, the State appeals the Board's order, which sets aside grievant's discharge and provides for his reinstatement, with back pay, to a demoted position as correctional officer within the same facility. Specifically, the State argues that the Board erred in failing to conclude that the grievant was dismissed for just cause.

The facts in this case, as found by the Board and as admitted by grievant in his testimony, are uncontroverted. Grievant, employed by the Corrections Department since 1976, had been working in the Chittenden Community Correctional Center in South Burlington since 1978. His annual employment evaluations revealed consistent ratings of satisfactory and, occasionally, more than satisfactory performance. Over the years, he had been promoted from Correctional Officer (pay scale 8), to Correctional Foreman A (pay scale 10), and finally to Correctional Shift Supervisor (also pay scale 10), which position he occupied until his dismissal in 1980. In June of 1980, grievant was assigned as supervisor of the nightshift at the South Burlington facility. During the hours of this shift, 11:30 p.m. to 7:30 a.m., the supervisor was the most senior staff member present. Among other duties, he was to "insure that all security and custodial functions [were] enforced," and to "report any unusual incidents to the proper authority and complete a written report following his tour of duty."

Almost immediately upon his arrival at the facility on the night of June 6, 1980, grievant was informed by the supervisor of the previous shift that there had been "trouble": one inmate had been assaulted by another and was requesting safe placement in protective custody. Grievant questioned the assaulted man to determine his attacker, and discovered that it was an inmate known to grievant as a "violent troublemaker." He therefore determined to move the latter inmate from the medium security area, known as "MA," to the maximum security area, known as "Special Adjustment," or "SA." It was standard procedure at the facility to move an inmate to "SA" when he became a danger to the safety of the other prisoners.

Grievant knew that the proper method for moving an inmate was to (a) make a "show of force" by using several officers for the move, (b) carry and, if necessary, use "restraints" (such as handcuffs, leg irons and the like), and (c) plan ahead to avoid trouble. But by his own testimony grievant was "angry" at the inmate, and wanted to conduct the move "alone." He therefore declined to obtain either the aid of other correctional officers or the requisite "restraints," although both were readily available for the move. Nevertheless, several of the officers decided to follow grievant as he proceeded towards the inmate's quarters.

Grievant entered the inmate's room alone, and told the inmate he was taking him to SA "for assault." The inmate refused to leave his cell, so grievant grabbed him by the back of the neck and shoved him through the door. Out in the hall, the inmate swung around to face grievant, whereupon grievant pushed him against the corridor wall and delivered six to eight sharp blows to his arms and shoulders. Reacting to the blows, the inmate "covered up" his head area with raised arms. One of the observing officers took hold of the inmate in order to prevent what he expected to be a retaliatory attack. However, neither at this time nor at any subsequent time did the inmate attempt to punch, strike, swing at or otherwise retaliate against grievant or anyone else.

Grievant then took hold of the inmate by the back of his neck and, with the other officers following behind, shoved and pushed his prisoner down the corridor. The inmate stiffened his legs and refused to walk voluntarily, all the while uttering a steady stream of "jailhouse profanity." Only a few feet down the corridor, grievant again pushed the inmate against the wall, and again struck him about the arms and shoulders. Again, the inmate "covered up" in self-defense, but did not attempt to retaliate. Grievant ceased his battering after several seconds, and continued to push the inmate down the corridor. The inmate continued to balk and to use loud, abusive language. Shortly thereafter, grievant thrust his charge against the wall for a third time, and beat him in the same manner and under the same conditions as previously. Further down the corridor, grievant repeated his assaultive behavior yet a fourth time. Following this fourth beating, however, one of the observing officers joined grievant in taking hold of the inmate, and together they escorted him the rest of the way to the SA unit, without further incident. By his own testimony, grievant struck the inmate because he, grievant, was "angry," because he felt the inmate "deserved" it, and in order to "smarten him up." Grievant filed no report concerning the circumstances of this move.

At some point prior to the time grievant commenced working at the South Burlington facility, the administration promulgated "Personnel Rules & Regulations" setting forth standards of conduct for the facility staff members. Number 17 of those rules provides as follows:

No employee or volunteer shall "use force" against a resident except within the guidelines of the Burlington Facility and Department of Corrections policy bulletin # 1041. Policy will be taught in training, but it is the responsibility of each employee to know.

Policy Bulletin 1041, referred to in rule 17, provides, in pertinent part, as follows:

Sound correctional practices minimize the necessity for using force.

....

Force may only be applied where there is direct and imminent threat of escape, or when the resident presents an imminent threat of bodily harm to himself, an employee, another resident, or any other person, or when all other available alternatives to effect legal order have been tried and failed.

In no case is it justifiable for an employee to retaliate in kind against an inmate because that employee has been abused by an inmate. An employee's use of any punitive sanction on his own is clearly forbidden.

....

When force must be used on a resident, the employee(s) involved will notify his immediate supervisor as soon as the incident requiring the use of force is ended. In addition, a written report will be submitted to the Superintendent within 24 hours stating the names of those involved, time, place, and circumstances of the incident, and a description of the force used.

Rule 17 is one of several in the list which is preceded by an asterisk; on the final page of the rules the asterisk is explained:

There are five categories of discipline in order of severity:

1. Oral reprimand

2. Written reprimand

3. Suspension without pay

4. Demotion

5. Dismissal

This facility subscribes to a policy of progressive discipline. Repeated offenses warrant increased discipline, and serious offenses draw higher penalties than lesser offenses. * indicates suspension or dismissal and may occur at first offense.

Thus, a violation of the rule 17 prohibition against excessive and unjustified use of force could warrant suspension or dismissal in the first instance. When he commenced working at the South Burlington facility in 1978, grievant signed the following memorandum:

I have read the Personnel Rules and Regulations. I have had the opportunity to review this information in its entirety, and have also had an opportunity to have my questions answered by my Supervisors. I completely understand my responsibility in these areas and understand I will be accountable for following these Rules and Regulations.

As grievant had...