In the seven months since a Manhattan federal court judge found that officer Billy M. Jones's lawsuit, alleging that the New York City Department of Correction discriminated against him by subjecting him to a "hostile work environment," indeed had merit and should go to trial, the jailhouse guard has not been able to savor the ruling.
At Rikers Islandwhere his car and those of several other African American officers were shot up with a BB gun, and a dead fish was left on the desk of an officer who had complained about racist graffiti on a bathroom wall, four years agoJones allegedly has been repeatedly harassed by supervisors seeking to tarnish his credibility on the eve of the trial.
Jones's $7.5 million discrimination and retaliation lawsuit against the Department of Correction is set for trial in U.S. District Court in Manhattan on September 17. But even the choice of an arbiter has been mired in judicial politics.
In a move Jones considers highly suspicious, John G. Koeltlwho on March 15 approved Jones's suit for trial was reassigned only two weeks before the trial. The explosive case is now in the hands of Judge Samuel Conti. Speaking through his attorney, Jones blasted the judge's last-minute switch.
The alleged harassment of Jones, an ordained minister, continued in the face of the judge's landmark decision. On April 4, Jones was summoned to the Office of Administrative Trials and Hearings (OATH) at 60 Hudson Street in Manhattan for a department hearing on his controversial complaint to the Equal Employment Opportunity Commission. Because Jones had been stripped of his DOC-issued Smith and Wesson pistol, and feared it was unsafe to walk the streets in a uniform that clearly identified him as a corrections officer, he showed up in plainclothes. Administrative Law Judge Christopher D. Kerr recommended that Jones be suspended and docked three days' pay for not wearing his uniform to the hearing.
"There can be no doubt, Officer Jones's concern for safety was sincere," the guard's union-appointed attorney Steven Isaacs argued in an August 24 letter to DOC commissioner William Fraser, asking Fraser to reject Kerr's recommendation. "Both Captain Shehee and Captain Wright acknowledged the potential dangers faced by corrections officers while they are in uniform and traveling in public. Surely, as a former officer yourself, you must appreciate the legitimate concern Officer Jones had for his safety."
Isaacs detailed "many aspects of this case which are troubling," contending that Kerr gave short shrift to Jones's explanation. Among the factors Isaacs has asked the commissioner to consider before passing judgment are:
- That the department's witness, Captain Shehee, had testified that Jones would not have been in violation of department rules and regulations if he had failed to appear for the scheduled interview. "To discipline him for appearing in civilian clothes, for an interview he was not required to attend, is illogical and unreasonable."
- That Shehee was biased. "It would seem to me, at the very minimum, Captain Shehee should not have been the investigator seeking to question Officer Jones. Captain Shehee clearly had a bias against Officer Jones." Isaacs noted that Shehee admitted during testimony that "he was suspicious of Officer Jones and was uncomfortable dealing with CO Jones' adversative approach to matters and his possible ulterior motives." According to Isaacs, ". . . this incident would not have been handled in the same manner if a different investigator was involved."
- That Kerr "did not adequately consider" the fact that prior to going to the hearing, a supervisor had denied Jones's request for transportation. "Clearly, Officer Jones attempted to resolve the safety issue before reporting to 60 Hudson Street," Isaacs wrote. "If proper transportation was provided, Officer Jones would not have been placed in a situation that caused him to fear for his safety. This fear was the sole reason he reported to 60 Hudson Street in civilian clothes."
- That Captain Shehee never informed Jones that he could have changed into uniform at the site of the hearing. "Additionally, the suggestion that Officer Jones could have changed in the public bathroom is ridiculous," Isaacs declared. "Besides the obvious security concerns, I do not really think you want members of the Department in various stages of undress at 60 Hudson Street. Furthermore [department regulations do] not permit Officer Jones to cover his uniform with any other garment. Therefore, he could not, without violating the directive, put a jacket over his uniform."
- That Kerr "improperly denied" Jones's request to call witnesses favorable to Jones. "The judge's ruling unfairly influenced his decision in this matter," Isaacs charged. "The judge should have let Mr. Jones call Commissioner Burgos, Deputy Warden Slattery, and Captain Carr."
- That Shehee was "untruthful" when he testified he was not aware that Jones had filed numerous complaints of discrimination and retaliation against his supervisors. "As such, his complete testimony should be discounted."
Jones later appeared before the judge in uniform. But after the hearing, the DOC allegedly exposed him to danger. "Officer Jones was left in full uniform in the lobby of 40 Rector Street for approximately two hours waiting for transportation," Isaacs complained in his letter to the DOC commissioner. "Again, Officer Jones's safety was placed at risk due to the Department's failure to act in the best interest of its members." The attorney asserted that in the wake of Jones's complaint against the department, the brouhaha over the uniform appears to be retaliatory. "Commissioner," Isaacs concluded, "if the purpose of the disciplinary process is to ensure a productive workforce, the suspension of Officer Jones, under the circumstances, will serve no purpose at all."
But if the commissioner were to side with the judge, Isaacs pleaded for a just sentence. "The penalty should be modified to a reprimand and the matter expunged from Officer Jones's record within a year," he suggested.
Officer Billy Jones battled bigotry with the fierceness of a civil rights crusader. But his membership in the elite Special Operations Division Security Unit did not insulate him from the racism that permeated the law enforcement community on Rikers Island.
In his ruling this spring, Judge Koeltl threw out the argument by the Department of Correction that Jones failed to prove he worked in a hostile environment because in the 10 years Jones has been in the department he has complained of only six racially motivated incidents. He found that the incidents, which occurred between 1994 and '96, "are sufficiently serious to conclude that they altered the conditions of [Jones's] working environment.
"They involved virulent racial slurs, comments, and graffiti," the judge added. "These incidents were serious, repeated, and sufficiently concentrated in time to have at least raised an issue of fact as to whether they altered the conditions of [Jones's] employment. Moreover, [Jones] points to plainly severe incidents where a dead fish was left on the desk of an African American officer who had complained about graffiti, and where the windows of cars belonging to African American officers were shot at with BB's. The [accusations] described included humiliating and physically threatening incidents. Taken together, [Jones] has described an environment that a reasonable person would find hostile or abusive."
In December 1997, Jones broke his four-year-long silence about racism on Rikers Island in an exclusive interview with the Voice. In a subsequent deposition, Jones testified that it was Assistant Deputy Warden Gerard Hemmerle who first informed the staff during a morning roll call that the words "I hate niggers" had been scrawled on a bathroom wall in the Special Operations Division Security Unit. Jones said that after the roll call he went to the bathroom to verify the warden's discovery.
"[He] claims that while Hemmerle declared that he wanted the behavior to stop, had pictures taken of the graffiti, and directed it to be painted over, no other investigatory or remedial actions were taken by the DOC," Judge Koeltl recalled in his ruling. Jones said he began documenting racist incidents after that.
In August 1994, Officer Donald Winkfield told Jones he discovered slurs in a log book. "[Jones] testified that the slurs were racial, mentioned several officers, and that he and Winkfield reported the discovery of the slurs to Captain Clifford Hazel," the judge wrote. "The materials were confiscated but no other investigation of the incident was undertaken by the DOC." About a year later, Jones said he tried to draw Hemmerle's attention to mounting evidence of workplace racism. "Look around and see who is the minority," Jones claimed Hemmerle responded. Between 1995 and 1996, Jones learned that someone had put racist literature about Nation of Islam Minister Louis Farrakhan in the locker of Officer Darian Davis. Jones said that he saw the offensive material and knew that Davis would file a complaint. Again, according to Jones, the DOC turned a blind eye and refused to investigate.
In 1996, Officer Winkfield found another "blatant, racist drawing" in a different log book at a security gate leading to one of the jails. "[Jones] alleges that the DOC did not investigate the incident or take any disciplinary or remedial action with respect to it," the judge wrote. Later that same year, racial slurs about Jones and another officer were discovered in a log book. Jones reported the incident to a warden and a deputy warden. Instead of seeking out the perpetrators, Jones said he was brought up on disciplinary charges (a "corrective interview") related to the hateful language he had stumbled on in one of the log books. DOC officials insisted that Jones was disciplined for other reasons.
In addition to dumping on Jones because he was black, DOC officials also allegedly violated his right to worship freely. In his 1997 interview with the Voice, Jones claimed that in August 1995 the DOC authorized a request for him to attend a convention in North Carolina hosted by the worldwide Church of Our Lord Jesus Christ of the Apostolic Faith, of which he is a board member. While in the South, he learned that the department had canceled an arrangement to have someone fill in for him, declared him AWOL for four days, and then charged that, because he was AWOL, his replacement had to be paid at overtime rates. (According to the court papers, the DOC claimed that declaring Jones AWOL was "an honest mistake" and that Jones was reinstated after he filed a grievance.)
Upon his return, Jones was reassigned to so-called "punishment posts and ridiculed by . . . co-workers." The department explained that Jones was "assigned to the posts for testing purposes" following "a change in DOC policy." Nevertheless, Jones complained to the EEOC, alleging religious discrimination. Despite Jones's documentation of the charges against the DOC, the agency ignored another request by Jones to attend a church convention in South Carolina. He played it safe and did not attend. (In 1998, the DOC, acting like Pharaoh, approved of Jones using time from his annual leave to attend a church convention. But a year later the department rebuffed Jones when he made a similar request.)
Rikers jailhouse officials kept a watchful eye on Jones. In December 1996, Jones was accused of disrupting a roll call conducted by Hemmerle. He was suspended for two days, but after an administrative hearing, the penalty was increased to 15 days. He appealed to the Civil Service Commission and lost. According to the court papers, Jones maintained that he was "not at fault because Hemmerle provoked him." Shortly after the unfavorable ruling, Jones's gun was taken away from him and he was transferred from the Special Operations Division to another correctional facility. He then went on a year-long sick leave and returned to Rikers in December 1997.
In his ruling, Judge Koeltl dismissed charges that then correction commissioner Bernard Kerik, Deputy Commissioner of the EEO Louis Burgos Jr., Captain Joe Dike, Deputy Warden Walter Johnson, Warden David Schoenfield, Assistant Deputy Warden Gerald Hemmerle, and Warden J. Stankovich, should be held liable. He found that the DOC itself should shoulder blame because the agency repeatedly ignored Jones's complaints about "hostile incidents" by his colleagues. "If the DOC did not respond reasonably to those complaints, then it could be liable for a hostile work environment created by its employees," the judge ruled. "The defendants have not demonstrated that their response to the complaints was reasonable."
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