Issue: Qualification/Methods and Means/other; Ruling Date: July 26, 2001; Ruling #2001-117; Agency: Department of Corrections; Outcome: not qualified

QUALIFICATION RULING OF DIRECTOR

In the matter of Department of Corrections/ No. 2001-117

July 26, 2001

The grievant has requested a ruling on whether her grievance with the Department of Corrections (DOC) qualifies for a hearing. The grievance as initiated claims that management engaged in acts of harassment that created a hostile work environment. The grievant seeks as relief an environment free from hostility and harassment, the return of all materials removed from her office, and disciplinary action to be taken against those involved. For the reasons discussed below, the grievance does not qualify for hearing.

At the time of her grievance, the grievant was employed as a Chief Nurse. On January 5, 2001, during the grievant’s absence from work due to illness, and without her knowledge, the institutional physician,¹ assisted by another employee, entered the grievant’s office for the purpose of retrieving business documents needed for an upcoming medical standards audit. The action was taken with the approval of and at the direction of the Warden. The facts are in dispute as to the exact scope of the search and as to which specific documents and items of personal property were removed during the search, if any. Upon the grievant’s return to work on January 8, the institutional physician entered the grievant’s office and presented her with a personal work schedule, which the grievant claims was done in a hostile manner.

By statute and under the grievance procedure, management is reserved the exclusive right to manage the affairs and operations of state government.² Thus, claims relating to issues such as the methods, means and personnel by which work activities are to be carried out and the assignment of duties to employees within the agency generally do not qualify for a hearing, unless the grievant presents evidence raising a sufficient question as to whether discrimination, retaliation, or discipline may have improperly influenced management’s decision, or whether state policy may have been misapplied.³ In this case, the grievant contends that removing documents from her office without her knowledge or consent, and presenting her the work assignment schedule in a hostile manner, were acts of harassment and constituted a hostile work environment.

These issues are discussed in turn below.

Inherent in the authority granted management is the authority to ensure the safe custody of official documents required for the efficient operation of the facility. Therefore, management acted reasonably, and well within its authority, in retrieving documents needed from the grievant’s office, during her absence, for an upcoming medical standards audit. Further, the search of the grievant’s office, which was directed by the Warden, and the removal of state documents and property did not violate any written policy, or law, or infringe upon the privacy expectations of the grievant.⁴

The grievant also claims that the management actions described above constitute harassment and a hostile work environment. A claim of harassment qualifies for a grievance hearing only if an employee presents evidence raising a sufficient question as to whether the challenged actions are based on race, color, religion, political affiliation, age, disability, national origin, or sex.⁵ The grievant does not assert, however, that the alleged harassment was based on any of these factors. Rather, the facts cited in support of her claim can be summarized as her disagreement with management’s exercise of discretion and the alleged hostile manner in which she was presented a work assignment schedule. Such general claims of harassment are not among the issues identified by the General Assembly that may qualify for a hearing. Accordingly, this grievance does not qualify for a hearing.

Regarding the grievant’s claim that items of her personal property were also removed from her office and not returned to her possession, the facts are in dispute. However, in the absence of a claim of discrimination, retaliation, discipline or a misapplication or unfair application of policy, a grievance hearing is not the appropriate forum to pursue a claim for the return or restitution of improperly seized personal property; also, a grievance hearing officer does not have the power to order the agency to provide the grievant with specific personal property items or with restitution.

APPEAL RIGHTS AND OTHER INFORMATION

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, she must notify the Human Resources Office, in writing, within five workdays of receipt of this ruling. If the court should qualify the grievance, within five workdays of receipt of the court’s decision, the agency will request the appointment of a hearing officer unless the grievant should notify them that she does not want to proceed.

Finally, it was noted that among the relief requested, the grievant asked that the institutional physician and another employee be disciplined. Even if the grievance were qualified by the circuit court, the scope of relief that a hearing officer may grant is limited, and does not include ordering the agency to take an adverse action –for example, suspension, termination or discipline against another employee.

Neil A.G. McPhie, Esquire
Director

June M. Foy
Employee Relations Consultant