Issue: Qualification/Work Conditions/Other; Ruling Date July 18, 2001; Ruling #2001-099; Agency: Department of Corrections; Outcome: not qualified

In the matter of Department of Corrections/ No. 2001-099
July 18, 2001

The grievant has requested a ruling on whether his grievance with the Department of Corrections (DOC) qualifies for a hearing. The grievant claims that DOC misapplied or unfairly applied policy on February 2, 2001, when the Associate Warden searched his lunch bags and allegedly harassed him. He further claims that the Chief Warden acted inappropriately in response to his complaint about the incident. The grievant now wants DOC to give him a memorandum of apology, acknowledging that both incidents were inappropriate. For the reasons discussed below, this grievance does not qualify for hearing.

The grievant works for DOC as a Counselor. On February 2, 2001, he participated in a routine institution search. When he proceeded to leave the entry area after the search concluded, the Associate Warden stopped him and asked to search his lunch bags (three brown plastic bags). The grievant asserts that this request came as a surprise to him because he had management’s approval to bring food into the institution and he had never heard of the Associate Warden checking lunch bags in the past. The grievant claims that the Associate Warden was loud and tactless during the search, he wore no gloves and smashed the grievant’s potato pie in the process. The grievant states that he felt harassed, humiliated, and embarrassed as a result of the entire incident.

The grievant immediately telephoned the Chief Warden to complain about the incident. The grievant reports that the Chief Warden interrupted him while he was speaking and hung up the phone before he could finish talking. The grievant felt that the Chief Warden had acted inappropriately and disrespectfully to him.

The grievance procedure recognizes management’s exclusive right to manage the affairs and operations of state government.¹ Inherent in this authority is the right to determine the methods, means, and personnel for accomplishing work activities. Thus, management has the discretionary authority to determine the necessary procedures for an institution’s operations. Moreover, a grievance challenging alleged management harassment qualifies for a hearing only if there is a claim and supporting facts that raise a sufficient question as to whether the action was based on improper retaliation, discrimination upon the basis of a protected class,² informal discipline, or a misapplication of policy.³ In this case, the grievant claims that management’s actions were inappropriate and constituted a misapplication of policy.

For an allegation of misapplication of policy or unfair application of policy to qualify for a hearing, there must be facts that raise a sufficient question as to whether management violated a mandatory policy provision, or whether the challenged action, in its totality, was so unfair as to amount to a disregard of the intent of the applicable policy. The grievant alleges that management misapplied or unfairly applied policy by conducting the search abruptly, without gloves and in a tactless, unsanitary manner.

The applicable policy in this case is DOC’s Entry/Search Procedures, which require "good and thorough" searches of all persons entering the institution.⁴ These Procedures also prohibit employees from bringing food into the institution unless they have special dietary needs and have the Chief of Security’s approval.⁵ Under the Procedures, even an approved employee (such as the grievant) is allowed to bring in only one meal per day.⁶ Additionally, the Procedures require that items brought into the institution be placed in a clear plastic tote bag.⁷ In this case, and in light of the procedures’ requirements, there is insufficient evidence to suggest that the grievant’s three brown lunch bags were searched in violation of applicable policy. Indeed, it appears that they were searched in accordance with applicable policy. Therefore, this issue does not qualify for a hearing.

Although the grievant reported to this Department that his pie was smashed during the lunch bag search, management has denied this claim. Further, while the grievant’s dismay regarding his lunch being searched without gloves may be understandable, the grievant has not offered any evidence to show that there was a mandatory policy that gloves be worn. These claims, in essence, challenge an agency’s method of conducting work, which, without more, cannot proceed to a hearing.⁸

Indeed, the claims presented by this grievance can best be summarized as describing incidents of interpersonal conflict between the grievant and members of management with respect to the search. Such claims of supervisory/employee conflict are not among the issues identified by the General Assembly that may qualify for a hearing.⁹

For information regarding the actions the grievant may take as a result of this ruling, please refer to the enclosed sheet. If the grievant wishes to appeal this determination to the circuit court, he should notify the human resources office, in writing, within five workdays of receipt of this ruling. If the court should qualify this grievance, within five workdays of receipt of the court’s decision, the agency will request the appointment of a hearing officer unless the grievant notifies the agency that he does not wish to proceed.

Neil A.G. McPhie, Esquire
Director

Felicia H. Johnson
Employment Relations Consultant