ORDERS:
ORDER
Grievance No. LCI 0221-04
STATEMENT OF THE CASE
In
the above-captioned matter, Appellant James Green (“Green”) 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”). In response to Green’s grievance, the
Department contends that Green is incorrectly basing his appeal upon S.C. Code
Ann. § 41-10-80(C), South Carolina Payment of Wages Act. Based upon the record
on appeal, the parties’ briefs, and the applicable law, the Department’s
decision to deny Appellant’s grievance must be affirmed.
BACKGROUND
On
November 1, 2004, Green submitted a Step One Grievance to the Department and
argued that he was entitled to payment of the prevailing wage for work he
performed in the prison industries program. The Department denied his
grievance on April 7, 2005. Green submitted his Step Two grievance on April 18,
2005 and again challenged the same issues contained in his Step One form. In
response, the Department issued its final agency decision by informing Green
that the South Carolina Payment of Wages Act was not applicable to his
grievance, and therefore, his grievance was denied. Based upon this final
decision of the Department, Green filed a Notice of Appeal with the
Administrative Law Court (“ALC” or “Court”) on July 13, 2005 to challenge the
Department’s determination.
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), Slezak
v. South Carolina Department of Corrections, 361 S.C. 327, 605 S.E.2d 506
(2004), and Furtick v. South Carolina Department of Corrections, 649 S.E.2d 35 (S.C. 2007). Pursuant to Al-Shabazz,
an inmate is permitted to seek judicial review with the ALC of Department
decisions concerning non-collateral or administrative matters, and the ALC sits
in an appellate capacity when reviewing such Department decisions. Al-Shabazz,
338 S.C. at 376, 527 S.E.2d at 754.
In
this matter, Green 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 Wicker, the Supreme Court stated that while the inmate has no claim for
civil damages, 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. 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).
Nonetheless,
Green is required to timely file his grievance with the Department concerning
the payment of prevailing wages. Green began working in the prison industries
program in 1995, and he continued working until the program was terminated
later that same year. Nearly nine years later, the South Carolina Supreme
Court issued Adkins and Wicker in 2004. Pursuant to Department
Policy Number GA-01.12, ¶ 13.1, inmates are required to file a grievance within
fifteen (15) days of the occurrence of an alleged grievance. Yet, Green did
not file his grievance until November 1, 2004, approximately 9 years after he
ended participation in the prison industries program. Green’s grievance
was clearly filed outside of the required fifteen day timeframe as mandated by
Department policy. Accordingly, Green did not timely file his grievance, and
the Department’s decision must be AFFIRMED. ALC Rule 65 (“The
Administrative Law Judge may affirm any ruling, order or judgment upon any
ground(s) appearing in the Record . . . .”); see I’On, L.L.C. v. Town
of Mt. Pleasant, 338 S.C. 406, 526 S.E.2d 716 (2000) (stating that the
appellate court may affirm for any reason appearing in the record).
ORDER
IT
IS HEREBY ORDERED that the Department’s decision in this matter is AFFIRMED.
AND
IT IS SO ORDERED.
______________________________
Marvin F. Kittrell
Chief Judge
June 10, 2008
Columbia, South Carolina
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