IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

Departrnent of Transportation,

Appellant/Ernployer-Below, C.A. No.: NlSA-06~O()8 SKR
On Appeal from Decision of the
Merit Employee Relations Board
Docket No. l7-06-672

V.

Laura A. Keeley,

Appellee/Grievant-Below.

Subrnitted: September 24, 2018
Decided: November 30, 2018

Upon Appealfrom the Merit Employee Relations Boara’ ’s Decl`sz'ons and Orders:
REVERSED.

Kevin R. Slattery, Esq., Deputy Attorney General, Delaware Department of Justice,
Attorney for Appellant.

Laura A. Keeley, pro se, Appellee.
Rennie, J.

OPINION

Before the Court is an appeal from a decision of the Merit Employee Relations
Board (the “MERB”). Laura A. Keeley (“Keeley”), a former employee of the
Delaware Department of Transportation (“DelDOT”), requested a salary increase
upon her promotion Within DelDOT. DelDOT granted the salary increase, but not

at the salary level Keeley Was initially seeking Keeley filed a merit grievance (the

“Grievance”). The Grievance finally reached the MERB, and the MERB granted it.
DelDOT now appeals the MERB’s decisions, Which Were issued on March 27, 2018
and June 20, 2018, respectively.l For the reasons set forth belovv, the MERB’s
decisions are REVERSED.
I. FACTUAL AND PROCEDURAL BACKGROUND

The facts in this case are undisputed Keeley Was formerly employed as a
Planner III in the Environmental Studies Office of DelDOT.2 On August 23, 2016,
an advanced salary request Was submitted to the DelDOT HR Manager, on behalf of
Keeley, Who at that time had been recommended for a career ladder promotion to a
Planner IV position.3 Keeley sought an advanced Salary classification of 85% of
midpoint of PG 17.4 On October 14, 2016, DelDOT denied the request, but allowed
an advanced salary of 81.18277% of midpoint of PG 17.5

On October 28, 2016, Keeley Submitted the Grievance contesting the result,
to both her immediate supervisor, LaTonya Gilliam, and then DelDOT HR Director,

Nicole Majesl<i.6 ln the Grievance, Which Was submitted by email, Keeley increased

 

1 Record on Appeal (“R. on Appeal”) 249-59, March 27, 2018 Decision and Order (“March 27
Order”); R. on Appeal 327_32, June 20, 2018 Board Decision Denying Agency Motion for
Reconsideration (“June 20 Order”); Notice of Appeal (Trans. ID. 62189091).

2 March 27 Order at 2.

3 ld.

4 Id.

5 Id. at 3.

6 Ia’.

her request to an advanced salary of 90% of midpoint of PG 17.7 On November 1,
2016, Ms. Gilliam sent an email to Ms. Majeski in which she stated that she “fully
support[ed] Laura’s grievance concerning Merit Rule 4.4.2 and 4.6.”8 Ms. Gilliam
followed up with a more formal letter to Ms. Majeski on November 14, 2016 in
which she iterated the reasons for her support of Keeley’s Grievance.9 Ms. Gilliam,
again, stated that she was “in Support of Ms. Keeley’s request to Submit the advanced
salary request to the Office of Management and Budget requesting 90% of
midpoint.”10

On November 14, 2016, DelDOT Labor Relations Manager Dina Burge11 left
a voice mail for Keeley, stating that she wanted to speak with Keeley regarding the
Grievance.12 On November 18, 2016, Ms. Burge sent an email to Keeley stating that
she wanted to speak with Keeley about “skipping Step l and going directly to Step

2 in this case.”13 Thereafter, on November 22, 2016, Ms. Burge confirmed with

Keeley, via email, that Keeley “ha[s] technically had the Step 1 with [her] supervisor

 

7 R. on Appeal 78-80, Keeley’s Initial Grievance Letter.

8 March 27 Order at 3.

9 Ia'. at 3-4.

10 Ia’. at 4. Under the Merit Rules, an employing agency may grant a salary increase not to exceed
85% of midpoint of the paygrade in which the employee falls. Any increase that exceeds the 85%
percentile must be approved by the Secretary of Department of Human Resources upon agency
request. Merit Rules 4.4.2, 4.6.

11 At that time, Ms. Burge’s position was part of the DelDOT HR department and she reported to
the DelDOT HR Director. March 27 Order,at 4.

12 101

13 101

and [DelDOT HR office] received a response,” and that they can move forward to
Step 2.14 A Step 2 hearing was conducted on December 8, 2016, and Keeley’s
Grievance was denied in a decision dated December 21, 2016.15 Keeley filed an
appeal to Step 3.16 A hearing was convened by a Senior Labor Relations and
Employment Practices Specialist, and the Grievance was again denied on June 7,
2017.17 Thereafter, Keeley filed a timely appeal to the MERB on June 20, 2017.18
On March l, 2018, the MERB held its first hearing on Keeley’s Grievance.19
At that hearing, the MERB found that, after a Step 1 decision in favor of Keeley had
been issued by Keeley’s immediate supervisor, DelDOT had not timely appealed to
Step 2.20 As a result, the MERB held that the Grievance stopped at Step l and
dismissed the Grievance for lack of subject matter jurisdiction 21 On March 27,
2018, the MERB issued a written order (the “March 27 Order”) that reaffirmed the
factual findings and legal conclusions it had made at the hearing. However, iii
addition to restating that the Step l decision is “final and binding on [DelDOT],” the

MERB further “modified” the Step 1 decision and ordered DelDOT to adjust

 

14 Ia'. at 5.

15 Id

161a1

17 ld.

18 101

19 R. on Appeal 186-248, Transcript of March l, 2018 MERB Hearing.
20 Id. at 59_60.

21 lai

Keeley’s salary rate to 85% of midpoint of PG 17, and to pay Keeley a lump sum of
back pay at that paygrade, retroactive to 30 days prior to the filing of the Grievance.22

DelDOT filed a Motion for Reconsideration on April 12, 2018.23 In that
Motion, DelDOT contended that the MERB cannot modify the Step l decision when
it admitted that it had no jurisdiction over the Grievance.24 The MERB held a second
hearing on June 7, 2018,25 and in an order dated June 20, 2018 (the “June 20 Order”),
denied DelDOT’s Motion for Reconsideration. On June 29, 2018, DelDOT filed a
Notice of Appeal, appealing both the March 27 and June 20 Orders to this Court.
Keeley filed a Motion to Dismiss the Appeal,26 and DelDOT filed a Motion to Stay
Enforcement of the MERB’s June 20 Order.27 The Court denied both l\/[otions.28
The Court will now address the merits of this Appeal.

II. STANDARD OF REVIEW

This Court has appellate jurisdiction over final agency decisions under 29 Del.
C. § 10142. On appeal, the Court’s review is limited to determining whether the
agency “acted within its statutory authority, whether it properly interpreted and

applied the applicable law, whether it conducted a fair hearing and whether its

 

22 March 27 Order at 10.

23 R. on Appeal 260-62, DelDOT’s Motion for Reconsideration.

24 Id. at 2.

25 R. on Appeal 268»~326, Transcript of june 7, 2018 MERB Hearing.
26 Keeley’s Motion to Dismiss (Traiis. ID. 62239427).

27 DelDOT’s Motion to Stay (Trans. ID. 62201921).

28 September 11, 2018 Memorandum Opinion (Trans. ID. 62437824).

5

decision is based on sufficient substantial evidence and is not arbitrary.”29 Questions
of law are reviewed de novo.30 Substantial evidence is such evidence that “a
reasonable mind might accept as adequate to support a conclusion.”31 Moreover, the

Court must “take due account of the experience and specialized competence of the

agency and the purposes of the basic law under which the agency has acted.”32

III. DISCUSSION
Merit Rule 18, which governs the grievance procedures, allows a state
employee to file a formal grievance whenever there is a violation of the Merit Rules.
The grievance process, which consists of several “Steps,” includes, in relevant parts:

18.6 Step l: Grievants shall file, within 14 calendar days of the date
of the grievance matter or the date they could reasonably be
expected to have knowledge of the grievance matter, a written
grievance which details the complaint and relief sought with their
immediate supervisor The following shall occur within 14
calendar days of receipt of the grievance: the parties shall meet
and discuss the grievance and the Step l supervisor shall issue a
written reply.

18.7 Step 2: Any appeal shall be filed in writing to the top agency
personnel official or representative within 7 calendar days of
receipt of the reply. The following shall occur within 30 calendar
days of the receipt of the appeal: the designated management
official and the employee shall meet and discuss the grievance,
and the designated management official shall issue a written
response.

 

29 Fami`ly Court v. Tucker, 2014 WL 4794407, at *2 (Del. Super. Sept. 25, 2014) (quoting Gibson
v. Merit Emp. Relations Ba’., 16 A.3d 937 (Table), 2011 WL 1376278, at *2 (Del. Apr. 12, 2011)).
30 Ia’. (citing Ward v. Dep ’z‘ OfElectl`ons, l4 A.3d 566 (Table), 2009 WL 2244413, at *l (Del. Jul.
27, 2009)).

31 Id. (quoting Avallone v. State Dep’t ofHealth & Soc. Ser'vs., 14 A.3d 566, 570 (Del. 2011)).

32 29 Del. C. § 10142.

DelDOT does not dispute that Keeley’S Grievance was timely filed, that there
was a Step l decision in favor of Keeley from her immediate supervisor, and that
DelDOT did not timely appeal the Step l decision to Step 2. Nor does DelDOT
dispute the MERB’s legal conclusion that, based on the above facts, the Grievance
Stopped at Step l, which is final and binding, and the MERB lacked jurisdiction in
this matter. DelDOT challenges only the last portion of the March 27 Order, which
ordered DelDOT to adjust Keeley’S salary rate to 85% of midpoint of PG l7. The
Step 1 decision, as DelDOT contends, merely recommended that DelDOT make a
request to the DHR Secretary to approve a salary of 90% of midpoint, and nowhere
did it order DelDOT to pay Keeley at 85% of midpoint as a lump sum. Hence,
DelDOT contends that the MERB, by adding the last portion of the March 27 Order,
has essentially modified the Step l decision, and the MERB, as it acknowledged,
had no jurisdiction to do so.

This Court has repeatedly held that the time limits for the grievance process,
as set forth in Merit Rule 18, are jurisdictional33 The MERB, in its own Practice
and Procedural Manual, acknowledges that time-barred grievances are one of the

two most common grounds for granting an employing agency’s motion to dismiss,

 

33 Tucker, at *3 (citing W. Michael Tupman, Delaware Department of Justice, Merit Employee
Relations Board Practice and Procea’ure Manual 78 (2013)).

7

which the MERB states is equivalent to a motion to dismiss for lack of subject matter
jurisdiction under Superior Court Civil Rule 12(b)(l).34

The parties agree that Chapman v. State Department of Health and Social
Services35 is directly on point. The facts in Chapman are very similar to those in this
case. In that case, the agency employer, the Department of Health and Social
Services, rescinded the plaintiffs promotion on the basis that she did not pass the
required drug test.36 The plaintiff filed a grievance37 The plaintiffs supervisor
discussed the matter with the plaintiff, and issued a Step l decision reinstating her.38
The Department did not timely appeal that Step 1 decision.39 The case finally
reached the MERB, and the MERB found for the Department.40 This Court reversed
the MERB ’s decision. lt found that the Department’s failure to follow the time limits
set forth in the Merit Rules bound them to the Step l decision, and concluded that
the MERB “lacked jurisdiction to review the [plaintiffs] grievance.”41 The
Chapman holding dictates the result here. The MERB, relying on Chapman,
correctly found that, by failing to comply with the grievance procedures, DelDOT is

bound by Ms. Gilliam’s Step l decision, the only valid decision rendered in this

 

34 Tupman, supra, at 10.

35 2009 WL 238609() (Del. Super. Jul. 31, 2009).
36 Ia’. at *2.

371d

38101

39 Id. at *3.

40 101

41 la’. at *4.

matter. Thus, the Grievance stopped there. Therefore, the MERB had no jurisdiction
to address the Grievance, and it committed legal error by modifying the Step 1
decision.

The MERB maintains that its modification of the Step l decision is justified,
because although it “lacked subject matter jurisdiction ‘to decide the merits of
Keeley’s advance starting salary claim,”’ it had jurisdiction to “review the grievance
process and award her relief to make her whole.”42 The MERB cited no authority,
and the Court has not found any, that distinguishes “merits” from “process” in a
jurisdiction analysis. When an adjudicating body lacks jurisdiction over a matter, it
cannot consider or render a decision on it.

As an alternative ground supporting its decision, the MERB cites to 29 Del.
C. § 5931(a), holding that it has authority to grant various remedies to make an
employee whole under that statute.43 While it is true that the MERB has the ability
to provide broad equitable relief to make an employee whole, that power may be
exercised only when the MERB has jurisdiction over a matter. There is nothing in
the statute that empowers the MERB to act in any way outside of its jurisdictional

liiriit.

 

42 June 20 Order, at 2 n.2.

43 29 Del. C. § 593l(a) gives the MERB the authority to “grant back pay, restore any position,
benefits or rights denied, place employees in a position they were wrongfully denied, or otherwise
make employees whole, under a misapplication of any provision of this chapter or the Merit
Rules.”

Although the Court agrees with DelDOT that the MERB is without
jurisdiction to modify the Step 1 decision, the Court finds that Keeley is nevertheless
entitled to similar relief as set forth in the MERB’s March 27 Order. Because the
MERB lacks jurisdiction to address the Step 1 decision, that determination stands.

The Court could simply stop at this point, however the question remains, what
is the remedy provided by the Step l decision? While the Court agrees with DelDOT
that the Step l decision is applicable to Keeley, implementing that decision
according to its original terms without proper clarification would potentially leave
Keeley without a valid remedy.44 The record reflects that Keeley initially requested
an advanced salary classification of 85% of midpoint of PG 17. DelDOT denied that
request and allowed an advanced salary of 81 .18277% of midpoint of PG 17. When
Keeley filed her Grievance, it was for 90% of midpoint, with which her immediate
supervisor was in agreement. However, the Step l supervisor needed further
authorization to approve anything in excess of 85%. That approval for 90% was

never materialized, but ostensibly, there was implicit approval by the Step 1

 

44 The Court notes that a remand to the Step l supervisor to implement her decision would be futile
under these circumstances The current status of this case and the parties makes it very unlikely
that the 90% advanced salary request, if sent to the DHR Secretary, will be reviewed on its merits
as it would have been if it was appropriately submitted two years ago. Keeley has already left
state employment. See June 7, 2018 Hearing Transcript at 34-35. The DHR will likely be
flummoxed by being asked to evaluate an advanced salary request submitted on behalf of a former
employee. And considering that this request would be made more than two years after the original
promotion of Keeley, it would likely have surpassed the DHR’s deadline in handling this type of
requests and impose an unnecessary burden on it.

10

supervisor for the 85%. Therefore, granting Keeley 85% of midpoint of PG 17 is
consistent with the Step l decision, and is the appropriate remedy under the current
circumstances
IV. CONCLUSION

For the foregoing reasons, the MERB’s March 27 and June 20, 2018 Orders
are REVERSED. Further, Keeley is entitled to back pay at 85% of midpoint of PG
17, retroactive to the date of the Step l decision.

IT IS SO ORDERED.

"=--..._v__`

.i 1 1 _.\,
Sheldoii K§`Rennie, Judge

ll

