           IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

HEERAK C. KIM,                 )
                               )
                               )
     Appellant,                )
                               )
           v.                  )           C.A. No. N14A-12-005 JAP
                               )
DEPARTMENT OF HEALTH AND       )
SOCIAL SERVICES, and the MERIT )
EMPLOYEE RELATIONS BOARD       )
                               )
     Appellees.                )
                               )


                                     ORDER

      1. This is an appeal from a decision of the Merit Employee Relations

Board (MERB), which unanimously dismissed for lack of jurisdiction Heerak C.

Kim’s appeal of his termination from the Delaware Department of Health and

Social Services (DHSS).

      2. Mr. Kim was employed as a certified nursing assistant at the Governor

Bacon Health Center (the Health Center) of the DHSS. The Health Center is a

long-term residential facility which provides intermediate care for elderly

patients with chronic health conditions. According to Mr. Kim, he was the only

employee of Korean descent at the Health Center.

      3. Mr. Kim’s employment ran from May 19, 2014 to July 24, 2014, a total

of 66 days. 1 The stated reasons for his termination included, among others, (1)

“[f]alse accusations related to nurses advising [him] not to answer call bells,”

(2) [t]alking openly about staff members not performing the essential functions

1     Record (hereinafter R) at 3.

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of their jobs,” (3) being “[a]rgumentative with the nurse in charge,” and (4)

“[i]gnoring direction of mentors and completing tasks [his] own way.” 2

       4. Mr. Kim filed an appeal of his termination with the MERB claiming he

was terminated in retaliation for filing reports of abuse by staff members. 3 The

MERB conducted a hearing at which Mr. Kim presented three issues regarding

his termination. First, he claimed that he was not made aware of any collective

bargaining agreement that concerned his employment. 4 Second, he claimed he

was told that he was making satisfactory progress in his job and that he would

have his first performance review in December, 2014. 5 Third, he claimed that

he was terminated in retaliation for filing several reports of elder abuse and

neglect at the Health Center. 6

       5. The MERB concluded that it lacked jurisdiction to hear his claim

because a collective bargaining agreement covering Mr. Kim deprived the

MERB of jurisdiction. 7 It found that Mr. Kim’s claimed ignorance of the

existence of the collective bargaining agreement did not void that agreement.

Even if the agreement did not deprive it of jurisdiction, the MERB noted,

Mr. Kim would have no recourse to the MERB because he was a probationary



2       Id, at 3–4.
3       Id.at 1. Mr. Kim also filed an appeal with the Office of Management and Budget,
Human Resource Management, but it rejected his appeal on July 31, 2014. Id. at 5. Mr. Kim
does not appeal this rejection to this court.
4       Id. at 37. Mr. Kim now claims that certain mid-level employees at the hospital waived
or modified the collective bargaining agreement. Those employees could not waive or modify
that agreement and the court rejects Mr. Kim’s argument. In any event, as discussed in the
text, the same result occurs irrespective of whether Mr. Kim’s claim is covered by a collective
bargaining agreement or by the state Merit Rules.
5       Id.
6       Id.
7       Id. at 45.

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employee. 8 Mr. Kim now appeals to this court. Most of his arguments are the

same he presented to the MERB. He now raises for the first time, however,

arguments that (1) employees of the Health Center somehow terminated the

collective bargaining agreement as applied to him 9 and (2) his termination was

racially motivated.

         6. When reviewing the MERB’s findings this court’s function “is to correct

any errors of law as well as determine whether the record contains substantial

evidence to support the [MERB’s] findings of fact and conclusions of law.”10

Substantial evidence is relevant evidence as a reasonable mind might accept as

adequate to support a conclusion. 11 “When the issue on appeal is whether or

not proper legal principles have been applied,” this court’s review is de novo. 12

         7. The MERB investigates complaints arising under Delaware’s Merit

Rule system. 13 That system was created to “establish a system of personnel

administration based on merit principles and scientific methods” for Delaware

State employees. 14 However if the dispute is covered, in whole or in part, by a

collective bargaining agreement, the bargaining agreement—rather than the

Merit Rules—governs resolution of that dispute. 15 In other words the MERB

generally lacks jurisdiction to hear disputes covered by a collective bargaining

agreement.

8        Id. at 46.
9        See supra note 4.
10       Gibson v. Merit Empl. Relations Bd., 16 A.3d 937 (Table), 2011 WL 1376278, at *2 (Del.
2011).
11       Delaware Alcoholic Beverage Control Com’n v. Newsome, 690 A.2d 906, 910 (Del. 1996).
12       Johnson Controls, Inc. v. Fields, 758 A.2d 506, 509 (Del. 2000).
13       29 Del. C. §§ 5907(1), 5931.
14       Id. § 5902.
15       29 Del. C. § 5938; Merit Rule 1.3.

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       8. In the end it does not matter here whether the dispute is covered by

the collective bargaining agreement because the MERB lacked jurisdiction

under either of the two possible scenarios. Either the dispute was covered by

the collective bargaining agreement—in which case the agreement itself

deprived the MERB of jurisdiction—or the dispute arises under the State Merit

Rules, in which case Mr. Kim has no right to an appeal because he is a

probationary employee.

       9. The MERB’s conclusion that it lacked jurisdiction because the dispute

is, in fact, covered by the collective bargaining agreement, is well-founded.

That   agreement,       among       other   things,   sets   out   employee   disciplinary

procedures 16 as well as procedures for the filing of employee grievances17

arising from disputes related to the bargaining agreement and violations of the

State Merit Rules. 18        Because the collective bargaining agreement covers

Mr. Kim’s position and any grievance he may file in relation to it, it governs the

resolution of Mr. Kim’s dispute with his employer. 19

       10.   The MERB also correctly reasoned that under the second of two

possible scenarios (the dispute is covered by the Merit Rules, not the collective

bargaining agreement) it also lacked jurisdiction to hear Mr. Kim’s appeal.

Assuming for the moment that the collective bargaining agreement does not

cover Mr. Kim, 20 he still had no rights to appeal his termination to the MERB



16     R at 23, Article 6.
17     R at 24, Article 8.
18     R at 24, Article 8.1.
19     R at 22, Article 8.
20     See R at 27, Article 10.3.

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under the Merit Rules because he is a probationary employee. Those Rules

define the first year of employment as a probationary period, 21 during which

an employee has no rights under the Merit Rules and, as a result, can be

dismissed at any time. 22           Mr. Kim worked only 66 days before he was

terminated, well within the one-year probationary period. 23                 Therefore, as a

probationary employee, Mr. Kim has no rights under the Merit Rules and

cannot appeal his termination to the MERB.

       11. The Merit Rules excepts terminations on the basis of race from its

no-rights-for-probationary-employees rule. 24             Mr. Kim now claims he was

dismissed at least in part because he is of Korean descent. He never made this

argument below, and it now comes too late. It is settled that when this court

acts “in appellate capacity on an appeal from an administrative board, [it] will

not consider issues not raised before the tribunal.” 25                 Mr. Kim had ample

opportunity to present this claim at the MERB and did not do so. Accordingly

the court will not hear it now.

       12. The court holds that (assuming the collective bargaining agreement

covered Mr. Kim’s claim) the MERB correctly decided it lacked jurisdiction. The

court further holds that (assuming the collective bargaining agreement did not



21      Merit Rule 9.1.
22      Merit Rule 9.2.
23      The collective bargaining agreement defines the probationary period as the first 90 days.
See R at 27, Article 10.1. Thus, even under the agreement’s definition of a probationary
employee, Mr. Kim is still considered a probationary employee because he was employed for 66
days.
24      Merit Rule 2.1.
25      Tatten Partners, L.P. v. New Castle Cty. Bd. of Assessment Review, 642 A.2d 1251, 1262
(Del. Super. 1993).

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cover Mr. Kim’s claim) the MERB lacked jurisdiction under the Merit Rules to

hear Mr. Kim’s appeal because he was a probationary employee.

     Wherefore the judgment of the Merit Employee Relations Board is

AFFIRMED.




January 28, 2016                             John A. Parkins, Jr.
                                            Superior Court Judge




oc: Prothonotary

cc: Heerak C. Kim, Townsend, Delaware
    Kevin R. Slattery, Esquire, Department of Justice, Wilmington, Delaware
    Rae M. Mims, Esquire, MERB, Department of Justice, Wilmington,
    Delaware




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