Dep t of Correction v. Norris OATH Index No. 1368/13 (May 30, 2013)

Transcription

1 Dep t of Correction v. Norris OATH Index No. 1368/13 (May 30, 2013) The Department failed to prove by a preponderance of the credible evidence that respondent falsely alleged that she used force against an inmate in the presence of supervisors who insisted that the incident did not occur. ALJ recommends that charge against respondent be dismissed. NEW YORK CITY OFFICE OF ADMINISTRATIVE TRIALS AND HEARINGS In the Matter of DEPARTMENT OF CORRECTION Petitioner - against - SEDINA NORRIS Respondent REPORT AND RECOMMENDATION INGRID M. ADDISON, Administrative Law Judge This disciplinary proceeding was referred by petitioner, the Department of Correction ( Department ), pursuant to section 75 of the Civil Service Law. The Department charged that respondent, Sedina Norris, a correction officer, filed a false report that she used force on an inmate on April 9, 2012, in the presence of three captains who denied that the incident occurred. The Department charged that respondent s conduct violated sections , , and of the Department s rules and regulations, and Department Directive No. 5006R-C (ALJ Ex. 1). At a hearing scheduled for April 5, 2013, only Captain Joseph Baiardi appeared for the Department. Counsel explained that the other witnesses had not been served with notice of the hearing. The trial went forward with the testimony of Captain Baiardi, and respondent s witness, Cynthia Neelon, whom I permitted to testify out of turn, after the Department had an opportunity to interview her. I granted a continuance to May 3, On that day, the Department presented the testimony of Captains Darnell Negron, Roxanne Alexander and Yasmeen Peoples, and Officer Shenika Gay, as well as documentary evidence. Respondent testified on her own behalf.

2 - 2 - For the following reasons, I find that the Department failed to prove by a preponderance of the credible evidence that respondent falsely reported that she used force against an inmate in the presence of supervisors. I therefore recommend that the charge against respondent be dismissed. ANALYSIS The Department charged that on or about April 13, 2012, respondent submitted a false report in which she asserted that she used force against an inmate in the presence of three Department captains. The charge arose from an incident that occurred at the Brooklyn Detention Center on April 9, 2012, during the 3:00 to 11:00 p.m. tour. It is undisputed that at or around 10:30 p.m. on the day in question, respondent, who was assigned to Housing Area 7, was doused with some kind of fluid by an inmate. (Baiardi: Tr ; Negron: Tr. 71; Alexander: Tr. 95; Gay; Tr ; Peoples: Tr. 151; Resp: Tr. 180). Respondent Sedina Norris, has been a correction officer for 17 years, and is, from all appearances, a good officer (Resp. Tr. 172; Negron: Tr. 81; Peoples: Tr. 165). She was assigned to the Brooklyn Detention Center upon its re-opening in February 2012 (Tr. 173). On April 9, 2012, respondent worked the A post in Housing Area 7, which is divided into A, B, C and D, upper and lower segments. At around 5:00 p.m. that day, she had issued an infraction against inmate Jonathan Mackall, for yelling out in gang code to another inmate, after he ignored her initial warning and told her fuck you, bitch (Resp.: Tr , 179; Gay: Tr ; Baiardi: Tr ; Pet. Ex. 1). Respondent testified that normally, an inmate is served with an infraction after the issuing officer s tour has ended. But on that day, Captain Roxanne Alexander, the housing area supervisor, immediately served inmate Mackall with the infraction, well before respondent s shift was over (Tr. 176). The subsequent events are disputed. Respondent testified that at around 10:20 p.m., an inmate asked her for a garbage bag. As respondent was handing over the bag, inmate Mackall, who was on the upper tier, threw water on her and said write an infraction on that (Resp: Tr ). Because it got wet, her personal body alarm ( PBA ) was inoperable, so she was unable to summon a probe team. The battery in her portable phone was also dead, so she used a desk phone to call the control room and notify Captain Yasmeen Peoples of the incident (Resp: Tr ; Peoples: Tr. 151). At around the same time, Shenika Gay, the officer assigned to the B post, was on the catwalk,

3 - 3 - having the inmates sanitize that area (Resp: Tr ; Gay: Tr ). The A post area could be seen from the elevated catwalk (Tr. 137). Officer Gay testified that inmate Mackall was on the upper tier surrounded by other inmates, and she actually saw him throw water on respondent below (Tr , 144). She did not hear respondent call for help, and did not use her own PBA because respondent indicated to her that she had already called for assistance (Tr. 146). On the same day, Officer Gay prepared an incident report noting that she had witnessed inmate Mackall throwing a bucket of water on respondent and stating bitch you like writing (sic) tickets now here s something you can write (Pet. Ex. 8). Following respondent s call, Captain Peoples communicated with Captain Alexander who, in turn, spoke with respondent (Peoples: Tr. 151; Alexander: Tr. 95; Resp.: Tr. 182). Respondent maintained that she informed the captain by phone that the perpetrator was the inmate whom she had earlier infracted (Tr ). Captain Alexander, the first to arrive in the area, found respondent seated at a table at the A station (Tr. 96). About two minutes later, Captains Joseph Baiardi and Darnell Negron arrived (Tr. 122). Captain Baiardi, who is now assigned to the Brooklyn Supreme Court, testified that he was directed by Assistant Deputy Warden ( ADW ) Murdock to investigate a situation that had occurred in the 7 upper housing area (Tr , 25). On his way, he encountered Captain Negron, the intake supervisor, whom he asked to accompany him (Baiardi: Tr. 18, 25-26; Negron: Tr. 70). All three captains testified that when they arrived at the housing area, respondent was wet and upset and stated that someone had thrown water on her. (Baiardi: Tr. 18, 26; Negron: Tr. 71; Alexander: Tr. 97). Respondent maintained that she immediately identified inmate Mackall as the perpetrator, but this was only partially supported by Captain Negron, who testified that she was unsure, but nonetheless opened the gate and pointed out inmate Mackall (Resp: Tr , 186; Negron: Tr. 71, 75, 84). The other captains testified that when asked, respondent expressed that she did not know who had thrown the water on her (Baiardi: Tr. 18, 26-27, 41; Alexander: Tr. 98). Respondent testified that when she pointed to inmate Mackall, he blurted out I didn t do shit and charged towards her. She instinctively threw a punch which made contact, and was ordered to step back by Captains Baiardi and Negron who proceeded to handcuff the inmate. After that, they locked down segments 7 Lower D and A, because the inmates from those segments were shouting she deserved that (Tr ).

4 - 4 - The captains offered slightly different accounts as to the timing of the lockdown and who initiated it, 1 but they were consistent in their testimony that they did not observe any inmate charging towards respondent or respondent executing force on any inmate (Baiardi: Tr. 19; Negron: Tr ; Alexander: Tr ). Captains Negron and Alexander testified that when they responded to the area, inmate Mackall and other inmates were in the dayroom (Negron: Tr. 71, 76, 85; Alexander: Tr. 98). According to Captain Baiardi, the gate to the housing unit was already open. From the corridor of the housing unit, he ordered the inmates to place their hands on their heads and proceed to their cells. When the lockdown was completed, he found respondent still arguing with [inmate Mackall] who was on the bridge outside his cell in the A station area. The captain had no explanation for the inmate s presence outside his cell in an area that was already locked down. He asked respondent to cease arguing with Mackall, whose behavior he described as verbally disrespectful of respondent. Then he and Captain Negron handcuffed and escorted the inmate to the intake area (Tr , 27-28, 32-38). Captain Negron s testimony suggested that the inmate was handcuffed before the area was locked down. He testified that as inmate Mackall was exiting the dayroom, he stated that he had done nothing and respondent confronted him, charging, Yes, you did. Captains Negron and Baiardi then handcuffed and took Mackall to the intake area, leaving Captain Alexander behind (Tr. 77, 84-87). Captain Alexander maintained that she ordered the lockdown which she executed with the assistance of Captains Baiardi and Negron. When the inmates were exiting the dayroom in compliance with the lockdown order, respondent identified inmate Mackall and started to yell and scream at him as he passed by. But contrary to Captain Baiardi s testimony, Captain Alexander maintained that the inmate did not yell back at respondent. She left the area after Mackall was handcuffed and led away (Tr ). Respondent testified that following Mackall s removal, Captain Alexander instructed her to issue him another infraction, but did not mention a Use of Force ( UOF ) report (Tr. 189). Even though she complained that she was not relieved of her duties to visit the clinic or change clothes, she admitted that she had no clothes to change into (Tr , 191). She maintained that at some point, because of her wet shoes and the wet floor, she slipped and fell down. When 1 Besides the captains, Officer Gay testified that on her own initiative, she executed the lockdown [b]ecause when an incident appears, you have to lock them in. Meanwhile, Captains Baiardi and Negron were on the bridge. But when asked [a]nd was that because Captain Alexander, or Captain Baiardi, or Captain Negron told you to do that, Officer Gay replied in the affirmative (Tr ).

5 - 5 - she tried to pull herself up, she slipped and fell again striking her arm against the desk. In the process, the side of her shoe was ripped (Tr ). Initially she felt okay because she had no aches or pains. But after leaving her post close to midnight, she encountered a colleague who made her aware that her hand was injured. That is when she realized that the side of her hand was red and somewhat swollen (Tr. 200). That colleague, Officer Cynthia Neelon, worked the 11:00 p.m. to 7:00 a.m. tour (Tr. 50). Officer Neelon claimed that as she was going through the turnstile to report for duty that night, Captain Peoples who was signing out, told her about the incident involving respondent (Tr , 57). Officer Neelon saw respondent in the arsenal as she was being relieved from duty. Respondent was wet from head to toe and Officer Neelon made her aware that she had a welt on her hand and one on her wrist (Tr ). Respondent explained to Officer Neelon that she had struck an inmate who had thrown water on her (Tr. 52, 59-60). Afterwards, while they were both in the control room, respondent intimated that she wanted to go to the clinic or whatever (Tr. 53). However, respondent did not visit the clinic before leaving the facility. She initially testified that she sustained no actual injuries from her claimed use of force against the inmate, but she was nevertheless advised by a colleague to write a UOF report. In spite of that advice, she wrote no reports on the night of the incident because there were no forms on post. Respondent testified that she approached Captain Lennon in the control room and specifically requested a UOF form, an incident report, and the infraction book, but the captain replied that an incident report was unnecessary because the infraction supplemented it. This surprised her because in her 17 years on the job, that had never been the case. In any event, she gave the infraction form and Rule book to Officer Gay, who offered to turn in the infraction for her. After that, she went home. Respondent acknowledged that when a UOF occurs, a report must be written immediately, but she insisted that the entire facility lacked forms because it had only recently been reopened. She did not consider writing a report on a plain sheet of paper (Tr , ; Pet. Ex. 2). The following day, respondent called from home and spoke with Captain Davis, 2 who was unaware of the incident. She complained of neck and shoulder pains but assured the captain that she would report for work. At work, the pain persisted but there was no one to relieve her until around 4:30 p.m., at which time she went to the clinic (Tr ). A report from the 2 Captain Davis role was not clarified.

6 - 6 - clinic doctor, Dr. Baksh, showed that when she visited, respondent complained of pain in her right shoulder and neck which she sustained from a fall while trying to escape being hit by an inmate who assaulted her w[ith] a wet mop (Pet. Ex. 10). In his report, Dr. Baksh indicated that respondent displayed mild tenderness at the neck and clavicular region and pain on ROM, 3 r[igh]t shoulder. He recommended that respondent be released from duty and that she make a follow-up visit either to her physician or to the emergency room on the same evening or the following day. He also recommended that in the interim, respondent should use Motrin or Tylenol and a cold and warm press. At the foot of Dr. Baksh s medical evaluation form was a handwritten notation that respondent was offered time off and refused. Respondent denied reporting that she had been assaulted with a wet mop. She stated that she told the doctor that an inmate had thrown a mop bucket of water on her, which resulted in her injuries. She also testified that she sustained a hand injury which she did not report, but she did not say how that injury was sustained (Tr. 195, 200). Before leaving the facility, respondent went to the control room and notified Captain Peoples that she was being released. She stated that Captain Peoples told her that she needed to complete UOF and Workers Compensation forms. Both of them and another worker searched for the relevant forms but none could be located. Also, respondent could not contact her union delegate, so Captain Peoples encouraged her to go home and rest (Tr. 196). Respondent therefore left the facility without completing any forms. Prior to leaving, however, Captain Negron informed her that the deputy warden did not want any uses of force (Tr. 198). According to Captain Alexander, an officer has a duty to maintain a logbook of activity in the housing area to which she is assigned. Thus, an inmate s assault of an officer should be noted in the logbook (Tr. 108, , 129). The Department produced a copy of the pages of the facility logbook for the A and B posts of housing area 7. They covered respondent s tour of duty on April 9, 2012, and showed that respondent made no notation that she was assaulted (Pet. Exs. 5, 6). However, a review of the entries for the entire tour revealed that the earlier incident with the inmate was also excluded from the logbook. In fact, the entries in the logbook appeared to focus solely on observations related to the security of the area. Respondent s failure to document the incident on the night that it occurred was compounded by the failure of the responding captains to submit reports on the same night. 3 Range of Motion.

7 - 7 - Captain Baiardi claimed that he did not prepare one because he had not witnessed the incident (Tr. 31). Captain Negron testified that he did not generate an incident report because the tour commander did not instruct him to do so. But he conceded that an officer being doused with water by an inmate constitutes an assault incident that should be reported (Tr ). Even Captain Alexander, who was the area captain, did not write an incident report. When asked about what reports were generated, Captain Alexander replied as follows: (Tr ). Q: And nothing was written in the logbooks, and there was no incident report generated, and a non-reportable wasn't generated. So what did you generate to indicate that this incident occurred? A: Just infractions. Q: And where is the infraction that you generated one-- A: --The officer have (sic) to generate the infraction. The infraction is there. I don't generate the infraction. Q: So you didn't have to write anything to indicate that this incident occurred on April 9th. I mean, this was your command, right? This was the 7-4, right? A: Mm-hmm. Q: So you weren't required to generate anything. A: I probably did, but I can't recall if I did or didn't. Q: You probably didn't, but you can't recall. A: Mm-hmm. Q: So there is some paperwork missing is what you're saying. A: I'm not saying that. I can't recall if I did or did not. In any event, respondent was out sick from April 10 through June 17, While out, she submitted, through Officer Neelon, a memorandum dated April 13, 2012, to Warden Walter Sims, outlining her version of the events on April 9, In it, she made self-incriminating allegations that she used force against inmate Mackall (Pet. Ex.1). Respondent s memorandum set in motion a flurry of reports from Captains Baiardi, Negron, Alexander and Peoples, and Officer Gay. It also propelled an investigation into respondent s allegation that the force was used in the presence of the captains. The captains wrote UOF witness reports about two to three weeks after the incident (Pet. Exs. 2-4, 9, 11). They all confirmed that they were directed to write their reports following respondent s memorandum (Baiardi: Tr ; Negron: Tr. 88; Alexander: Tr ; Peoples: Tr. 152, 160). As the investigation into respondent s claimed use of force progressed, the captains were required to provide explanations to questions by way of addendums to their initial

8 - 8 - reports. While there were some areas of conflict between their testimony and their reports, which were written closer in time to the incident, the reports were consistent to the extent that the captains all disclaimed observing a use of force by respondent upon an inmate (Pet. Exs. 2-4). To bolster her claim that respondent s version of events was prevaricated, Captain Alexander testified that an officer who uses force on an inmate must immediately write a UOF report, the inmate must visit the clinic whether or not he is injured, and the officer must also write an Injury to Inmate report. She received no such reports from respondent (Tr ). Like the captains, Officer Gay, who issued a contemporaneous incident report that was devoid of any mention of an observed use of force on an inmate by respondent, also issued a UOF witness report on May 13, 2012, affirming her incident report (Pet. Exs. 7, 8). She testified, however, that even though she was on the catwalk, she did not have an unobstructed view of all segments of the housing area (Tr. 140, 142). Respondent focused on Captain Peoples incident report on April 25, 2013 (Pet. Ex. 9A). Captain Peoples, who has been with the Department since 2001, testified that respondent trained her. Captain Peoples prides herself on generating accurate reports (Tr , 163, 165). She recounted that following the incident, respondent came to the control room and it was readily apparent to her that respondent was wet and upset (Tr. 151, , 164). The day after, respondent paid another visit to the control room to notify Captain Peoples that she did not feel well. When she left the clinic, respondent went back to the control room to notify Captain Peoples that she had been released from duty. At that time, respondent articulated concerns that she could find no Workers Compensation forms throughout the building (Tr. 155). On her report, under the heading Type of Incident, Captain Peoples inserted by hand, Use of Force. Under her description of the incident, she noted that the day following the incident, she and respondent had discussed the infraction and Use of Force reports, and she told respondent to make sure she submit (sic) the reports and to notify her Union Delegate. On May 2, 2012, Captain Peoples issued an addendum to her report indicating that she had inadvertently used the term Use of Force (Pet. Ex. 9B). She noted that respondent had communicated to her that she was assaulted by an inmate but at no time did respondent indicate that she was in a use of force. On the same day, Captain Peoples wrote a UOF witness report in which she stated I am unable to describe the incident and the specific force used. I was not present at the scene (Pet. Ex. 11).

9 - 9 - The investigating supervisor, Captain Persaud, prepared a summary report of his investigation on May 21, 2012, after reviewing the various reports, inmates statements and interviews, and medical documentation (Pet. Ex. 12). Copies of the inmates statements were attached to the exhibit. Inmate Mackall s statement was dated April 23, 2012, and signed the following day. In it, Mackall claimed that on April 9, 2012, an inmate spilled water on respondent, and he was unaware of what happened after, except that he was taken to intake and then out of the building. He denied that force was used against him, but asserted that he saw respondent use force against another inmate, by the name of Daykwon. Inmate Quayshawn Benson wrote and signed a statement on April 23, 2012, in which he claimed that on the date in question, the dude with the C on his neck threw water on the officer, and the officer swung at inmates. Inmate Daequan Wilson wrote two statements, one on April 23 and the other, the following day. In the first, he stated that he was on the phone at around 10:20 or 10:30 p.m. when a couple of inmates dumped a bucket of water on respondent. About five minutes later, respondent entered the housing area and physically attacked him and two other inmates, after Captain Baiardi told her to pick a herb. In his follow-up statement, inmate Wilson explained that respondent did not know which inmate had thrown water on her, so Captain Baiardi told her to pick an inmate, as if picking an herb. Respondent then attacked him and two other inmates. In both statements he noted that he had not received an infraction. Statements procured from eight other inmates were less than forthcoming. They all denied seeing the incident. Captain Persaud s investigative report indicated that following inmate Wilson s claim that he was attacked, he was immediately taken to the clinic where he was examined and found to display no visible injuries. Besides that, on April 24, Captains Baiardi and Negron submitted addendums to their original reports in which Captain Baiardi denied use of the phrase pick a herb, and Captain Negron denied hearing it. Likewise, Captain Alexander wrote an addendum on May 21, 2012, in which she, like Captain Negron, denied hearing it. Captain Persaud s investigation appeared to have left him clueless as to what exactly occurred. Accordingly, his responses to critical questions were non-committal. For instance:

10 # 5: Question: Answer: # 6: Question: Answer: Do you find that the force was necessary? Due to the conflicting reports with regard to Officer Norris and inmates [Mackall], Jonathan and Wilson, Daequan reports it is undetermined at this time. Do you find that the force was avoidable? Due to the conflicting reports with regard to Officer Norris and inmates [Mackall], Jonathan and Wilson, Daequan reports it is undetermined at this time. In spite of those responses, Captain Persaud recommended that respondent receive command discipline for failing to submit a UOF report. If nothing else, this case presents quite an anomaly in that the majority of use of force cases brought before this tribunal revolves around an officer s failure to report that s/he used force on an inmate. In stark contradiction here, respondent reported that she used force and the Department essentially asserts that her report was an elaborate concoction. Resolution of the charge therefore turns on the credibility of the witnesses. In assessing credibility, this tribunal has considered factors such as: witness demeanor, consistency of a witness testimony, supporting or corroborating evidence, witness motivation, bias or prejudice, and the degree to which a witness testimony comports with common sense and human experience. Dep t of Sanitation v. Menzies, OATH Index No. 678/98 at 2-3 (Feb. 4, 1998), aff d, NYC Civ. Serv. Comm n Item No. CD A (Sept. 9, 1998). As an initial matter, the Department argued that respondent had motive to lie about a use of force because she was out for 46 days as a result of the incident. The Department further intimated that the four captains (Baiardi, Negron, Alexander and Peoples) with 60 years of Department experience collectively, would have no reason to jeopardize their careers by concertedly lying. I disagree. I find that the captains had a compelling reason to discredit respondent, if they overlooked or elected not to document a genuine use of force, and were taken by surprise when respondent filed her report. I note that respondent, who was complimented by some of the captains, has a 17-year career with the Department, which would equally be jeopardized if she lied about using force against an inmate. But I am not persuaded that she did. I found it bizarre to suggest that 46 days of sick leave would motivate a seemingly good officer to concoct an elaborate scheme in which she accused herself of using force against an inmate, and implicated the captains as witnesses. She was already out on leave when she submitted her

11 report, and had no way of knowing whether or not the captains had filed UOF reports. Respondent s explanation as to her delay in filing reports was credible. It was more or less corroborated by Captain Peoples whose incident report reflected that respondent expressed her concern about the lack of workers compensation forms, and that they had also discussed the infraction and UOF reports. At the same time, I was not entirely convinced by respondent s report. Contrary to her account, it made no sense that inmate Mackall would charge at respondent after he had already avenged himself by dumping water on her for the earlier infraction that she had written. Rather, I found it more likely than not that her anger at being doused with water caused respondent to strike out at the inmates as they were exiting the dayroom during the lockdown. Whether or not she made contact with Mackall when she struck out is in dispute. He said she did not, while inmate Wilson said that he is the one with whom she made contact. If the events occurred as reported by inmate Wilson, then respondent s report identified the wrong subject of her use of force. On the other hand, the Department opined that the captains did not submit UOF reports because there was no use of force. The fact that they did not submit reports until they were ordered to do so was not dispositive that no force was used in their presence. These are captains who were also silent about the incident that warranted their response to the area in the first place. Not one of them, even area supervisor Captain Alexander, whose responses seemed less than forthcoming, wrote an incident report about respondent being assaulted with a bucket of water. And only Captain Baiardi advanced a reason why he did not, stating that he was not present during the incident (Tr. 31). The inconsistencies in the captains testimony were troubling as a whole, even though they appeared to be minor. For instance, their testimony conflicted with respect to some significant events such as who ordered the lockdown, specifically when it was ordered and inmate Mackall s location when respondent was allegedly yelling at him. I was also troubled by Captain Peoples incident report and the addendum in which she sought to explain her use of the term Use of Force. As a captain, she is well aware of what constitutes a use of force. She admitted that respondent had discussed with her what had occurred, and in her report she opted to deem it a use of force. Thus, to glibly suggest that she had inartfully used the term to characterize an inmate s assault of an officer with a bucket of

12 water was not plausible. Rather, her change of heart suggested that it was somehow brought to her attention that her report was not in sync with the other captains reports. The Department bears the burden of proof by a preponderance of the credible evidence. See Dep t of Correction v. Hall, OATH Index No. 400/08 at 2 (Oct. 18, 2007), aff d, NYC Civ. Serv. Comm n Item No. CD O8-33-5A (May 30, 2008); Dep t of Correction v. Ingram, OATH Index No. 320/04 at 4 (Feb. 13, 2004). Preponderance has been defined as the burden of persuading the trier of fact that the existence of a fact is more probable than its non-existence. If the evidence is equally balanced, or if it leaves the [trier of fact] in such doubt as to be unable to decide the controversy either way, judgment must be given against the party upon whom the burden of proof rests. Prince, Richardson on Evidence 3-206, at 110 (11th ed. 1995). See also R.A. Barker and V.C. Alexander, Evidence in New York State and Federal Courts 3:9, at 90 (West 2001) ( The modern trend is to define preponderance as the more likely or probable account of what happened ); see, e.g., Rinaldi & Sons, Inc. v. Wells Fargo Alarm Service, Inc., 39 N.Y.2d 191, 196 (1976); Dep t of Correction v. Jackson, OATH Index No. 175/03 at 14 (Jan. 30, 2003). Here, I am not persuaded that respondent prevaricated that she used force on an inmate. It would appear that in spite of the contradictions between respondent and the inmates, the Department s investigator, Captain Persaud, was sufficiently persuaded that a use of force had occurred and recommended that respondent be disciplined for failing to write a UOF report. Thus, it is ironic that the Department charged respondent with falsely asserting that she used force on an inmate. However, I am still left in a quandary. The evidence revealed that after inmate Mackall threw water on respondent and the captains responded to her call, something happened. But, it is not entirely clear to me what occurred. The Department had the burden of proving that no force occurred. It failed to meet that burden. Accordingly, the Department did not prove its charge against respondent by a preponderance of the credible evidence. I therefore recommend that the charge be dismissed. May 30, 2013 Ingrid M. Addison Administrative Law Judge

13 SUBMITTED TO: DORA B. SCHRIRO Commissioner APPEARANCES: PAUL R. MILLER, ESQ. ORBIEN DeARMAS, ESQ. Attorneys for Petitioner KOEHLER & ISAACS LLP Attorneys for Respondent BY: ANDREW ROWE, ESQ.