SC Administrative Law Court Decisions

In the above-captioned matter, Appellant Calvin Byrd appeals the decision of Respondent South Carolina Department of Corrections (Department) to deny his grievance concerning payment of the prevailing wage he argues is owed to him for work performed in the Prison Industries private sector program (“prison industries program”). Appellant’s challenge is contained within his Steps 1 and 2 Inmate Grievance Form, submitted October 5, 2004, and November 8, 2004, respectively, and identified as grievance number BRCI 0887-04. In response to Appellant’s grievance, the Department contends that Appellant failed to file a grievance within fifteen (15) days of the occurrence of the alleged grievance, in accordance with SCDC Policy Number GA-01.12, ¶ 13.1. Therefore, by final agency decision dated May 14, 2007, the Department denied Appellant’s grievance. Appellant now appeals that denial before this Court. Based upon the record in this appeal, I affirm the Department’s decision.

DISCUSSION

This appeal is before this Court pursuant to Al-Shabazz v. State, 338 S.C. 354, 527 S.E.2d 742 (2000), Sullivan v. South Carolina Department of Corrections, 355 S.C. 437, 586 S.E.2d 124 (2003), and Slezak v. South Carolina Department of Corrections, 361 S.C. 327, 605 S.E.2d 506 (2004). In this matter, Appellant complains that he was not paid the prevailing wage for work performed in the private sector program, as mandated by S.C. Code Ann. § 24-3-430 (Supp. 2005). Specifically, Section 24-3-430(D) clearly provides that “[n]o inmate participating in the [prison industries] program may earn less than the prevailing wage for work of similar nature in the private sector.” Id. The Supreme Court of South Carolina has unequivocally held in Wicker v. South Carolina Dep’t of Corrections, 360 S.C. 421, 602 S.E.2d 56 (2004) that: (1) an inmate is entitled to file a grievance when not being paid the prevailing wage; (2) the ALC has jurisdiction to review the Department’s failure to pay the prevailing wage; and, (3) an inmate is entitled to be paid the prevailing wage while working in the private sector program. Id. at 421, 602 S.E.2d at 56.

In addition to the requirement that an inmate must file a grievance within fifteen days of an alleged incident, SCDC Policy Number GA-01-12, paragraph 13.1 states that “[i]nmates will only be allowed to submit one grievance per incident or circumstance.” Applying this policy provision to the instant matter would lead to an absurd result for this tribunal to find that an inmate must file a separate grievance for each day of work performed or for each pay period. A more logical result would be to interpret the policy so as to find that an inmate has timely filed a prevailing wage grievance if he filed during the course or term of employment or within fifteen days of the completion of a term of employment, regardless of when he initially began employment with the prison industries program. That is, as long as an inmate filed during the term of employment or within fifteen days of the cessation of a term or period of employment, such inmate has satisfied the filing provision of SCDC Policy Number GA-01.12, ¶ 13.1.

Aside from the Department’s assertion concerning the filing period for an inmate grievance, this tribunal is confounded that the Department would still make the kinds of arguments it has made in the instant case concerning the inmate’s claim of entitlement to the prevailing wage. In Wicker, the Court stated that while the inmate has no claim for civil damages[1], an inmate may challenge the wages he is being paid through the Department’s grievance procedures, particularly where there is a statute mandating payment of the prevailing wage. Wicker, 360 S.C. at 423, 602 S.E.2d at 57.[2] Further, there is nothing in the statutory scheme, as set out in Chapter 3 of Title 24 of the South Carolina Code of Laws, authorizing the Department to pay an inmate less than the prevailing wage. Id. at 425, 602 S.E.2d at 58; S.C. Code Ann. §§ 24-3-310 to -430 (Supp. 2005). Rather, Section 24-3-430 mandates the payment of the prevailing wage to an inmate participating in the prison industries program. S.C. Code

Ann. § 24-3-430 (Supp 2005).

The Department argues that “Appellant’s plea is again in the form of a class-action suit. There are no class-action grievances in the SCDC grievance system. Appellant’s case is moot because he fails to allege any issue affecting him personally.” (Resp. Br. at 3) However, review of the record indicates that Appellant filed a proper grievance requesting back wages and cited appropriate case law, including the class action suits decided by our courts. Appellant’s case is not moot because he clearly alleges back wages that affect him personally.

In its appellate brief, the Department states “Appellant filed some 5 years too late.” (Resp. Br. at 3) Based upon this extended period of time, the Department argues that Appellant failed to timely file his grievance.[3] The Step Two response indicates that Appellant worked with the prison industries program from October 1, 1999, to April 21, 2003. Appellant avers the Department delayed processing his “complaint in a timely fashion.” (Notice of Appeal) From April 21, 2003, to October 5, 2004, clearly falls outside the fifteen-day time period. While this court may accord some credence to Appellant’s claim that the Department did not timely file his grievance, it is now 2007—3 years later. Thus, because Appellant clearly did not timely file his grievance, the Department’s decision must be AFFIRMED.

AND IT IS SO ORDERED.

______________________________

October 10, 2007 JOHN D. GEATHERS

Columbia, South Carolina Administrative Law Judge

1205 Pendleton Street, Suite 224

Columbia, South Carolina 29201-3731