IN THE SUPREME COURT OF THE STATE OF DELAWARE

TUESDAY S. BANNER, §
§ No. 28, 2015
Appellant Below, §
Appellant, § Court Below—Superior Court
§ of the State of Delaware in and
v. § for New Castle County
§
STATE OF DELAWARE MERIT § CA. No. N13A-004-013
EMPLOYEE RELATIONS BOARD §
and DEPARTMENT OF HEALTH §
AND SOCIAL SERVICES, §
§
Appellee Below, §
Appellee. {5

Submitted: June 5, 2015
Decided: August 26, 2015

Before VALIHURA, VAUGHN and SEITZ, Justices.
0 R D E R

This 26th day of August 2015, upon consideration of the parties’ briefs
and the Superior Court record, it appears to the Court that:

(l) The appellant, Tuesday S. Banner (“Banner”), ﬁled this appeal
from the Superior Court’s December 24, 2014 opinion afﬁrming the
dismissal of Banner’s appeal ﬁ'om a decision of the Merit Employee
Relations Board. Having found no merit to the appeal, the Court concludes

that the judgment of the Superior Court should be afﬁrmed.

(2) Banner was a state employee employed as an Administrative
Specialist I with the Delaware Department of Health and Human Services
(“the Department”). On March 8, 2012, Banner’s supervisor, Genelle
Fletcher (“Fletcher”), gave Banner a letter proposing a one-day suspension
for Banner’s alleged failure to comply with certain job requirements. The
letter advised Banner that she had a right to a pre-suspension meeting if she
ﬁled a written request for a meeting within ﬁfteen days of the letter. Banner
informed Fletcher that she wanted to get the suspension “out of the way” the
following day, March 9, 2012. Banner submitted a leave without pay slip to
Fletcher and served the suspension on March 9, 2012. Banner did not
request a pre-suspension meeting.

(3) Fletcher later learned that she erred when she allowed Banner to
choose the date of suspension and accepted Banner’s leave without pay
request. Therefore, by letter dated April 20, 2012, Fletcher informed Banner
of the error and advised her that her leave without pay request for March 9,
2012 would be “converted to a suspension without pay and appropriately
annotated” in the timekeeping records. On May 10, 2012, Banner ﬁled a
grievance contending that the March 9, 2012 suspension was “invalid.”

(4) Under Title 29 of the Delaware Code, Title 19 of the Delaware

Administrative Code, and the State of Delaware Merit Rules, a state

2

employee has two mechanisms for appealing a suspension to the Merit
Employee Relations Board (“the Board”).l The employee can ﬁle an appeal
directly with the Board.2 Or, the employee can go through a three-step
grievance process and have the matter heard by designated personnel
representatives, before ﬁling an appeal with the Board.3

(5) If the employee ﬁles an appeal directly with the Board, the
appeal must be ﬁled within thirty days of the suspension.4 The Board has no
jurisdiction to consider an untimely appeal.5

(6) If the employee goes through the grievance procedure, the
initial grievance, Step 1, must be ﬁled within “14 calendar days of the date

of the grievance matter or the date they could reasonably be expected to

996

have knowledge of the grievance matter. At the conclusion of Step 3, if

the employee is dissatisﬁed with the outcome, the employee can ﬁle an

I See 29 Del. C. ch. 59 (2006) (governing Merit System of Personnel Administration); 19
Del. Admin. C. ch. 3001 (2014) (governing Merit Employee Relations Board). See
STATE OF DELAWARE MERIT RULES (2009), available at

http://delawarepersonnel.com/mrules/documents/mru[es-complete.pdf.
2 19 Del. Admin. C. § 3001-139; Merit Rule 12.9.

3 19 Del. Admin. C. § 3001-19.0-.1 l; Merit Rule 18.0-.11.

4 29 Del. C. §5949 (a) (2006) (“Within 30 days after any such dismissal, demotion or
suspension, an employee may appeal to the Board for review thereof.”); 19 Del. Admin.
C. §3001-13.9; Merit Rule 12.9.

5 Maxwell v. Vener, 311 A.2d 864, 865 (Del. 1973) (“Perfection of the review proceeding
within the time limited by statute is jurisdictional”).

6 19 Del. Admin. C. § 3001-196; Merit Rule 18.6.
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appeal with the Board.7 Any appeal to the Board must be ﬁled “within 20
calendar days of receipt of the Step 3 decision.”8 The employee’s failure to
comply with time limits “shall void the grievance.”9

(7) With the ﬁling of her initial grievance on May 10, 2012, Banner
invoked Step 1 of the grievance procedure to grieve the one-day suspension
she served on March 9, 2012. After hearings at Steps 1 and 2, the respective
hearing ofﬁcers concluded that Banner’s initial grievance was untimely ﬁled
and that the grievance was without merit.

(8) On July 25, 2012, prior to the Step 3 hearing, Banner ﬁled an
appeal with the Board. The Board’s Administrator advised Banner that the
appeal was premature because it was ﬁled prior to the Step 3 hearing and
decision.

(9) The Step 3 hearing was held on August 8, 2012. By decision
dated September 21, 2012, the hearing ofﬁcer denied the grievance, ruling
that the grievance was “void” because the initial grievance was untimely
ﬁled, and that Banner’s decision to serve the proposed suspension on March
9, 2012, was a waiver of her right to grieve the suspension. Banner did not

ﬁle an appeal from the September 21, 2012 Step 3 decision with the Board.

7 19 Del. Admin. C. § 3001-193; Merit Rule 13.3.

B 19 Del. Admin. C. § 3001-199; Merit Rule 13.9.

9 19 Del. Admin. c. {5 3001-194; Merit Rule 13.4.
4

(10) On February 19, 2013, the Department ﬁled a motion to dismiss
Banner’s appeal ﬁled on July 25, 2012. The Department asserted that the
Board was without jurisdiction to hear the appeal because Banner’s initial

grievance was untimely ﬁled on May 10, 2012, two months after she served

the suspension.

(11) The Board held a hearing on March 7, 2013. By written
decision dated March 12, 2013, the Board concluded that it was without
jurisdiction to consider the appeal because Banner had not ﬁled the appeal
within twenty days of the September 21, 2012 Step 3 decision. The Board
also concluded that, to the extent Banner had intended to ﬁle an appeal
directly with the Board, it was without jurisdiction to consider the appeal
because Banner had not ﬁled the appeal within thirty days of the suSpension.

(12) Banner appealed the Board’s decision to the Superior Court.
On appeal, Banner argued that the dismissal of the appeal was arbitrary and
capricious because the Board had the discretion to consider an appeal
processed by its Administrator. Banner also argued that the dismissal of the
appeal on a basis not raised in the motion to dismiss was a violation of due
process. By opinion issued December 24, 2014, the Superior Court rejected
Banner’s arguments and afﬁrmed the Board’s decision that it was without

jurisdiction to consider the appeal. This appeal followed.

5

(13) On appeal from the Superior Court’s afﬁrmance of the Board’s
decision this Court reviews the Board’s decision directly “to determine

whether it is supported by substantial evidence and is free from legal

error ”10

Substantial evidence is such relevant evidence as a
reasonable mind might accept as adequate to
support a conclusion. This Court does not weigh
the evidence, determine questions of credibility, or
make its own factual ﬁndings. We review
questions of law and statutory interpretation de
novo. Absent an error of law, we review an
agency’s decision for abuse of discretion. An
agency abuses its discretion only where its
decision has exceeded the bounds of reason under
the circumstances. 1'

(14) Having carefully reviewed the parties’ briefs and the record, we
conclude that the Board’s decision must be afﬁrmed. The record supports
the Board’s ﬁnding that Banner was on notice that her appeal ﬁled on July
25, 2012 was premature, and that she would have to reﬁle the appeal after
the Step 3 hearing and decision. Banner’s failure to ﬁle the appeal within

twenty days of the Step 3 decision was properly raised by the Board.'2 The

'0 Sweeney v. Delaware Dep't of Tramp, 55 A.3d 337, 341 (Del. 2012) (citing Public
Water Supply Co. v. DiPasquale, 735 A.2d 378, 380-31 (Del. 1999); Olney v. Coach, 425
A.2d 610, 613 (Del. 1981); Unemployment Ins. Appeal Bd. v. Duncan, 337 A.2d 308,
308-09 (Del. 1975)).

“ Sweeney v. Delaware Dep't of Tramp, 55 A.3d 337, 341-42 (Del. 2012) (citations
omitted).

‘3 Maxwell v. Vetter, 311 A.2d 864, 865-66 (Del. 1973).
6

Board correctly determined that it was without jurisdiction to consider
Banner’s appeal because the appeal was not ﬁled within thirty days of the
suspension or within twenty days of the September 21, 2012 Step 3 decision.

NOW, THEREFORE, IT IS ORDERED that the judgment of the

Superior Court is AFFIRMED.

 

