Issue: Qualification; Work Conditions/Supervisory Conflict; Performance/Interim Evaluation; Ruling date: November 5, 2001; Ruling #2001-165; Agency: Department of Corrections; Outcome: Not qualified.

In the matter of Department of Corrections/ No. 2001-165

November 5, 2001

The grievant has requested a ruling on whether his June 3, 2001 grievance with the Department of Corrections (DOC) qualifies for a hearing. The grievant claims that management violated policy when erroneous instructions were given to correctional officers. Specifically, he claims that the lieutenant gave instructions that violated the Inmate Job Application Process. As relief, he requests that the lieutenant review the policy, re-instruct the shift properly regarding the procedures, and provide a written guarantee that there will be no harassment or retaliation against the grievant. For the reasons discussed below, this grievance does not qualify for a hearing.

The grievant is a Correctional Officer with DOC. On May 16, 2001, during formation, the grievant’s lieutenant instructed the shift on the hiring and firing of inmates from the Inmate Work Program. He quotes her as saying, "If you have an 8 a.m. to 4 p.m. houseman who doesn’t want to work for you, fire him. If you have an 8 a.m. to 4 p.m. houseman on the recreation yard, fire him. If you have an inmate who wants to work, get him a job application, put his name on it, and hire him." ¹ The grievant contends that these instructions do not follow the procedures set out in Internal Operating Procedure 833, which states that the only person who may fire an inmate from the work program is the Program Assignment Reviewer. ² The grievant is concerned about the vicarious liability that may result for correctional officers who follow these improper instructions. ³

The Grievance Procedure Manual states that an employee’s grievance must "pertain directly and personally to the employee’s own employment." ⁴Assuming without deciding that the instructions given at formation by the lieutenant were erroneous, ⁵ this Department determines that the instructions do not pertain to the grievant’s employment. The instructions appear to be general in nature and thereand there is no evidence that the lieutenant attempted to pressure the grievant to violate policy. Additionally, the instructions in no way affected how the grievant did his job nor did they cause him to suffer any adverse employment action. Accordingly, the instructions given to the correctional officers on May 16 did not pertain directly and personally to the grievant’s employment with DOC, and this issue does not qualify for a hearing.

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, Esq.
Director

Leigh A. Brabrand
Employment Relations Consultant