In re Jewett

• Decision Date: 19 June 2009
• Docket Number: No. 08-138.,08-138.
• Citation: 978 A.2d 470,2009 VT 67
• Parties: In re Grievance of Dennis JEWETT.
• Court: Vermont Supreme Court

978 A.2d 470

2009 VT 67

In re Grievance of Dennis JEWETT.

No. 08-138.

Supreme Court of Vermont.

June 19, 2009.

William H. Sorrell, Attorney General, and Julio A. Thompson, Assistant Attorney General, Montpelier, for Appellant.

Norman R. Blais, Burlington, for Appellee.

Present: REIBER, C.J., DOOLEY, JOHNSON, SKOGLUND and BURGESS, JJ.

¶ 1. JOHNSON, J.

The State of Vermont, on behalf of the Department of Corrections (DOC), appeals a Labor Relations Board decision that ordered DOC to reinstate grievant, Dennis Jewett, whom DOC had dismissed for serious misconduct. The Board agreed that grievant committed misconduct for failing to intervene when an inmate repeatedly cut himself with a razor blade fragment, but found that this conduct did not warrant dismissal. The State argues that the Board exceeded its authority by substituting its own judgment for that of DOC. We agree. We conclude that DOC's decision to dismiss grievant was reasonable and, therefore, we vacate the Board's decision and reinstate grievant's dismissal.

¶ 2. Grievant was dismissed from his position as a correctional officer at the Chittenden Regional Correctional Facility (CRCF) for failing to intervene when an inmate under his supervision produced a razor blade fragment and repeatedly cut his wrist. Grievant filed a grievance with the Board.

¶ 3. The following facts were either found by the Board or are not disputed. Grievant began working at CRCF in March 1998 as a temporary employee. He completed correctional officer training at the Vermont Correctional Academy in April 1998. In August 1998, grievant became a permanent Correctional Officer I (CO I) and was promoted to Correctional Officer II (CO II) in March 2001. Prior to his dismissal, grievant had not been disciplined at work. He received two overall satisfactory evaluations, and one excellent evaluation.

¶ 4. At the Academy, grievant received training in conflict resolution, physical intervention and suicide prevention. The suicide prevention training materials used at the Academy provide that "[a]ctions should be taken as soon as it is possible to stop [people attempting suicide] from harming themselves, but safety of staff and bystander[s] must also be consider[ed]." During his employment, grievant also received Advanced Communications Techniques (ACT) training, which instructs officers on how to respond to inmate behavior with active listening and communications skills. ACT training teaches officers to verbally deescalate an agitated offender and avoid physical intervention unless inmates are harming others or themselves. DOC directives explain that "[w]hen an offender's behavior represents a danger to people or the safe operation of the facility, staff have [sic] a responsibility to respond. . . . Dangerous behavior includes . . . self-mutilation." In addition, CRCF's directives state that "Correctional Staff has the responsibility to protect inmates from harming themselves." DOC considers ACT and suicide prevention to be core competencies of correctional officers.

¶ 5. On December 19, 2005, grievant was working in the booking area at CRCF as a transport officer, preparing to transport several inmates to a different facility. Also in the booking area were CO I Edgerly, who had recently completed his probationary employment period, and CO II Giddings. One of the inmates scheduled for transport, K.D., entered the booking area and announced he was not going to be transported anywhere. He then displayed two razor blade fragments, one in his hand and one in his mouth. At the time, K.D. was not restrained in any manner. He sat on a wooden pallet in the booking area. The shift supervisor, Michael Miller, was summoned to the scene. Miller began speaking with K.D., explaining that he would have to surrender the razor blades, submit to a strip search, and be restrained and transported. After fifteen minutes of speaking with K.D., Miller instructed Edgerly to videotape the incident. Before the videotaping began, K.D. made a single cut with a razor above his left elbow that began to bleed visibly, but not profusely. A mental health worker arrived at the scene, and joined Miller in conversing with K.D. After forty-five minutes of discussion, K.D. agreed to comply, and dropped the blade. Grievant was present during the entire discussion.

¶ 6. K.D. submitted to a strip search. Grievant checked K.D.'s clothes, and Giddings searched K.D.'s person, including his mouth. Grievant then put K.D. in a blue plastic chair near the booking desk and placed K.D. in leg irons, handcuffs and a waist chain. The leg irons significantly reduced K.D.'s ability to move his legs and kick. The handcuffs resulted in K.D. being able to move his hands only six to eight inches away from his waist. A nurse arrived, cleaned K.D.'s cut, and determined that it would not require sutures. Miller and the mental health worker left the booking room to discuss whether K.D. could still be transported that evening. According to the Board, "Miller did not announce that he was leaving the booking room, and did not tell Grievant he was now in charge." On the videotape of the incident, Miller can be heard saying, "I'll be back." Miller had the only canister of pepper spray and left with it. The staff remaining in the room was the nurse, grievant, Giddings and Edgerly, who continued to operate the video camera. Grievant was the most senior officer in the room and agreed at the hearing that after Miller left he was in charge of the situation.

¶ 7. Shortly after Miller left the room, K.D. got up from a blue chair and moved over to the wooden pallet. Neither grievant nor Giddings attempted to prevent K.D. from moving. K.D. said, "I know you guys would try to trick me if I'm sitting right there." Grievant responded, "Who's going to trick you?" K.D. sat down on the pallet, bent his head over and spat out a razor blade into one of his hands. K.D. then stood up and commented that Miller was not as smart as he thought he was, stating: "You think I'd give up my only weapon? Ha. I'm not giving up my only f____g weapon, dude."

¶ 8. Grievant did nothing to respond. Grievant did not radio for assistance, did not ask K.D. to drop the razor blade, and did not attempt to intervene. Using his right hand, K.D. began slicing his left wrist several times over the next thirty-five to forty-five seconds. An offender in a booking area holding cell called out to grievant, "What are you going to do?" Grievant replied, "Nothing, not if he's got another razor," and made a nervous laughing sound. The nurse said, "This is so against everything." Grievant took a couple of steps forward, but did not get closer than ten feet to K.D. and did not enlist Giddings to assist him in getting the razor blade from K.D.

¶ 9. K.D. continued cutting and on his eleventh cut opened a vein that began to bleed profusely. K.D. yelled, "Yeah, that's the one I was looking for the whole f____g time," and "pump baby pump." K.D. then dropped the razor blade to the floor. At this point, the video shows grievant lift a radio to his mouth. Grievant claims he radioed Miller to return to the scene, but there is no audio of him speaking and Miller did not receive any broadcast. Giddings, who was standing by the booking desk, contacted the control room and summoned Miller to the scene. Grievant walked to the booking desk to retrieve gauze. He then approached K.D. and pressed the gauze to K.D.'s wound. This took place approximately 100 seconds after K.D. began cutting himself.

¶ 10. Miller arrived at the scene and using verbal intervention persuaded K.D. to return to the blue chair. Once seated, the nurse examined K.D.'s wounds and determined that he required a trip to the hospital. Paramedics transported him to the hospital where he received treatment. Upon his return to CRCF, K.D. was again prepared for transportation. Two officers loaded K.D. into a transport van that already contained other offenders. At the time. K.D. was restrained with leg irons, handcuffs, a belly chain and a seatbelt. In the van, K.D. produced another razor blade. K.D. was instructed to drop the blade, and when he did not comply with the command, Miller authorized use of pepper spray on K.D. After being sprayed, K.D. dropped the blade. K.D. was then transported without further incident.

¶ 11. On the following day, a superintendent viewed video footage from both the hand-held video camera and a fixed security camera in the booking area. Based on the incident, the superintendent placed grievant, Giddings and Edgerly on temporary relief from duty with pay, and requested an investigation of their conduct.

¶ 12. Peter Canales, Investigations Unit Chief at the Agency of Human Services, conducted the investigation. On February 3, 2006, Canales interviewed grievant. During the interview, grievant claimed that after K.D. produced the razor blade, he was talking with K.D. In response to Canales' direct question of whether grievant had instructed K.D. to drop the razor blade, grievant unequivocally responded that he had. Because the video did not support these claims, Canales played the video for grievant and asked grievant to indicate where in the sequence of events he had spoken with K.D. Grievant was unable to pinpoint any particular moment when he had spoken, and agreed that no statements were audible on the video, but continued to insist that he had spoken to K.D.

¶ 13. Based on the investigation, the superintendent sent grievant a letter notifying grievant that he was contemplating dismissal for violations of DOC work rules and policies.¹ The letter charged grievant with committing gross neglect of duty, and engaging in conduct that jeopardized the life and health of an offender. This charge was based on DOC's assertion that grievant did nothing to prevent K.D. from leaving the chair in the booking room and took no verbal or physical action to stop K.D. from harming himself until after an inexcusable delay....