Juan M. Gomez, Appellant, INITIAL

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University of Tennessee, Knoxville Trace: Tennessee Research and Creative Exchange Tennessee Department of State, Opinions from the Administrative Procedures Division Law 7-12-2007 Juan M.

1 University of Tennessee, Knoxville Trace: Tennessee Research and Creative Exchange Tennessee Department of State, Opinions from the Administrative Procedures Division Law Juan M. Gomez, Appellant, INITIAL Follow this and additional works at: Part of the Administrative Law Commons This Initial Order by the Administrative Judges of the Administrative Procedures Division, Tennessee Department of State, is a public document made available by the College of Law Library, and the Tennessee Department of State, Administrative Procedures Division. For more information about this public document, please contact administrative.procedures@tn.gov

2 BEFORE THE CIVIL SERVICE COMMISSION METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY IN THE MATTER OF: Juan M. Gomez Appellant DOCKET NO: J INITIAL ORDER This contested case was heard in Nashville, Tennessee, on July 12, 2007, before Ann M. Johnson, Administrative Judge, assigned by the Secretary of State to sit for the Civil Service Commission of the Metropolitan Government of Nashville and Davidson County. Cynthia E. Gross, Assistant Metropolitan Attorney, represented the Davidson County Sheriff s Office ( DCSO ), the Petitioner in this matter. The Appellant was present and was represented by John M. L. Brown, of the Nashville bar. The subject of this hearing was the Appellant s appeal of his demotion from the position of sergeant by the Davidson County Sheriff s Office. This matter became ready for consideration on October 3, 2007, when the record was complete. After consideration of the evidence and the arguments of the parties, it is determined that the demotion should be upheld. This decision is based upon the following Findings of Fact and Conclusions of Law.

3 FINDINGS OF FACT 1. The Appellant Juan Gomez has been employed by the Davidson County Sheriff s Office for approximately ten years. Prior to that time the Appellant served in the United States Army and later worked for the Tennessee Department of Correction. 2. In general, the Appellant has received good performance evaluations during the last several years of his employment with the Davidson County Sheriff s Office. Supervisors commented that he was a valued sergeant who exhibited quality leadership and a good work ethic. He was also known to be honest and truthful. 3. In spite of these many excellent qualities, the Appellant has exhibited a pattern of anger management problems, for which he has received discipline: in 1998, there was a verbal altercation with an inmate, which resulted in a course of anger management classes; in 1999, there was a physical altercation with an inmate, resulting in a fifteen day suspension; in 2006, there was a physical altercation with an inmate, resulting in a Disciplinary Agreement imposing a three day suspension. There were two additional disciplinary actions for failure to follow instructions in completing paperwork. provision: 4. The Disciplinary Agreement, signed June 15, 2006, contains the following Sgt. Gomez acknowledges that Captain Taylor, representing the DCSO, has advised that this Memorandum and the misconduct that precipitated it will be taken into account if there are further incidents of misconduct, and that such misconduct could result in further disciplinary action up to and including termination of employment. Furthermore, as this is not the first disciplinary action Sgt. Gomez has received for escalating an incident, he has been informed that any future problems of a similar nature will result in the termination of his employment. EXHIBIT 1. Emphasis added. 2

4 5. Since the Appellant was released from the armed services in 1996, he has attended group sessions and has seen a physician for anger problems and for post-traumatic stress disorder. The Appellant has been on medication for mental health issues since October of In the fall of 2006, the Appellant asked to change his shift, from the first to the third, because he felt this move could reduce his stress level and prevent future anger incidents. Although the Appellant had located another sergeant on the third shift who wished to trade, and the Appellant s supervisor originally agreed, the Appellant was informed on January 2, 2007, that this transfer was denied because of recent disciplinary action against the Appellant. 7. On January 4, 2007, the Appellant was working in the second floor control room of the Criminal Justice Center when he became angry with another sergeant, using profane and abusive language about him to a subordinate officer, Brent Pace, for about a minute. His statement included the following language: You know, he is the stupidest son of a bitch I ve ever met. He s the dumbest motherfucker.... The Appellant also stated that the other sergeant was incompetent and was acting like a six year old. 8. During this tirade, the telephone rang and the Appellant cursed and used similar language about the sergeant to a sheriff s office employee at the security desk. 9. Immediately after hanging up the telephone, the Appellant heard yelling from one of the cells, although the source was not immediately apparent from the security camera pictures. The Appellant requested that Mr. Pace open the doors to the B Cell, housing about 48 inmates in separate cells. As the Appellant exited the control room, he picked up a broken broomstick handle with a pointed end and carried it with him as he investigated the source of the disruption in the cell. The Appellant stopped between the outer door and the open crash gate of the B Cell, 3

5 raising his voice to inquire about the source of the noise. The B Cell is about 40 to 50 feet in length, so a loud voice is necessary to be heard in the back of the room. Then the Appellant left the B Cell. 10. As a result of this incident, the Appellant was charged with the following violations: (1) Failure to establish and maintain effective working relationships (DCSO Policy ); (2) Degrading, harassing, or cursing any person (DCSO Policy ); (3) Using abusive or profane language in the workplace or toward a member of the public (DCSO Policy ); (4) Using or threatening to use violence or unauthorized force against any person (DCSO Policy ); and (5) Violation of any written rules, policies or procedures of the department in which the employee is employed (Section 6.7, Civil Service Rules). 11. As discipline for the violations, the Appellant was given a five day suspension and was demoted from the rank of sergeant. 12. This discipline is consistent with that applied to other employees in the past who have committed violations similar to those in this case. There are instances of sergeants who were demoted for similar infractions, even when these sergeants have received no previous discipline. 13. The Appellant accepted responsibility for his actions and acknowledged that the suspension was proper. However, he stated that the demotion was not appropriate discipline. 14. DCSO employees receive extensive training in proper use of force and the dangers of perceived force or threatened force. Officers are not allowed to carry anything into the cellblock that could be used as a weapon, other than a chemical agent for control, whether or not they threaten to use the item as a weapon. The reasoning behind this policy is that such an 4

6 action could create a security risk and potential for inmate unrest. The Appellant was aware of this policy. 15. Officers in the DCSO are responsible for carrying out broken broom and mop handles because the inmates cannot have access to them. However, it was not uncommon for a broken handle to be kept behind the door in the control room because it was sometimes used to prop the door open. 16. The position of sergeant is a critical one at the DCSO. Sergeants must be a role model for their subordinates, demonstrating the appropriate method of interacting with staff and inmates. Professionalism and integrity are key qualities since officers follow and learn from the examples set by sergeants. RELEVANT LAW 1. Section 6.7(11), Civil Service Rules for employees of the Metropolitan Government, provides that [v]iolation of any written rules, policies or procedures of the department in which the employee is employed constitutes grounds for disciplinary action. 2. The Davidson County Sheriff s Office Policies, Section , prohibits the following conduct: (4) Failure to establish and maintain effective working relationships; (32) Degrading, harassing, or cursing any person; (34) Using abusive or profane language in the workplace or toward a member of the public; and (35) Using or threatening to use violence or unauthorized force against any person. 5

7 ANALYSIS and CONCLUSIONS OF LAW The evidence in this case clearly shows that the Appellant committed the violations with which he was charged. The facts are not in dispute: the Appellant became enraged and used profane and abusive language toward another sergeant. These outbursts were heard by other DCSO employees, including an officer under the supervision of the other sergeant. By these actions the Appellant was guilty of degrading, harassing, or cursing another person and also of using abusive or profane language in the workplace. This situation is especially serious, given the vital function of a DSCO sergeant as a role model for officers and other employees. It is unacceptable for a supervisor to display a continued pattern of uncontrolled behavior. This incident also shows that the Appellant failed to maintain effective working relationships. Even though the Appellant s previous evaluations reflected good relationships with most of his peers, this incident alone would understandably sever the relationship with the other sergeant who was the target of the verbal attacks. After the Appellant s verbal outburst, while still in a state of anger, the Appellant entered a cellblock while carrying a broken broom handle with a jagged end. Even if this action was inadvertent on the Appellant s part, it could definitely be perceived as threatening by the inmates and could have resulted in a breach of security. The Appellant acknowledged that he was aware of the prohibition against carrying any object that could be perceived as a weapon, as well as the reasons for this prohibition. The mere presence of a sergeant who carries a sharp wooden stick constitutes a threat of violence, even without any other overt threatening action. These offenses merit serious disciplinary measures, but there are also other factors in this case that support the demotion. First, the Appellant s employment history contains multiple disciplinary actions for the type of actions seen here. In June, 2006, the Appellant was told that 6

any future problems of a similar nature will result in the termination of his employment. EXHIBIT 1. Only a few months after this warning, another similar incident occurred.

8 any future problems of a similar nature will result in the termination of his employment. EXHIBIT 1. Only a few months after this warning, another similar incident occurred. A demotion in rank is a reasonable discipline in this situation. For this reasons, the suspension and demotion imposed by the DCSO constitute appropriate discipline in these circumstances. Accordingly, it is hereby ORDERED that the Grievant s five day suspension and demotion be UPHELD. This Initial Order entered and effective this 20th day of November, Ann M. Johnson Administrative Judge Filed in the Administrative Procedures Division, Office of the Secretary of State, this 20th day of November, Thomas G. Stovall, Director Administrative Procedures Division 7

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