          IN THE SUPERIOR COURT OF STATE OF DELAWARE
                  IN AND FOR NEW CASTLE COUNTY

THE FAMILY COURT OF THE                     )
STATE OF DELAWARE,                          )
                                            )
      Employer-Below/ Appellant,            )
                                            )
             v.                             )     C.A. No. N13A-10-007 ALR
                                            )
TERRI TUCKER,                               )
                                            )
      Appellant-Below/ Appellee             )
                                            )
and the                                     )
                                            )
MERIT EMPLOYEE RELATIONS                    )
BOARD,                                      )
                                            )
      Appellee                              )

                             Submitted: July 1, 2014
                           Decided: September 25, 2014

                         On Appeal from Decision of the
                         Merit Employee Relations Board

                          REVERSED and VACATED

                          MEMORANDUM OPINION


Kevin R. Slattery, Esquire, Delaware Department of Justice, Attorney for
Employer-Below/ Appellant

Terri Tucker, self-represented.



ROCANELLI, J.
      This is an appeal from the September 11, 2012 decision of the Merit

Employee Relations Board (“MERB”).             MERB exercised subject matter

jurisdiction over this case based on the incorrect legal conclusion that subject

matter jurisdiction had been waived. In deciding the case on the merits, MERB did

not grant the Appellee relief. Rather, MERB merely admonished the Family

Court. Because MERB did not have jurisdiction, MERB’s September 11, 2013

decision is legally void.

                             FACTUAL HISTORY

      Terri Tucker (“Appellee”) was employed at the Family Court of Delaware in

New Castle County as a Judicial Case Processing Supervisor in the Records Unit.

Appellee became overwhelmed in the Judicial Case Processing Supervisor position

and began sick leave on July 11, 2012. Appellee applied for Family Medical

Leave Act (“FMLA leave”) on July 16, 2012, submitting physician’s reports in

support of her application, stating that her ability to work was “zero” and that the

date of her ability to return to work was “unknown.”

      Appellee was granted FMLA leave on July 30, 2012. In the meantime,

while awaiting FMLA leave approval, Appellee applied for a vacant Social Service

Specialist III (“SSS III”) position within Family Court. Appellee was granted an

interview for the position, which was scheduled for August 13, 2012.




                                         1
          On August 8, 2012, Appellee sent an email message to the Family Court’s

Human Resources (“HR Representative”) to ask whether Appellee would be able

to interview by telephone for the SSS III position because she was out on FMLA

leave.      The HR Representative informed Appellee that she was ineligible to

interview.        Appellee responded with a request that the notification of her

ineligibility be confirmed in writing.          The HR Representative confirmed

Appellee’s ineligibility in an email message on August 10, 2012, as follows:

                 I was scheduled to meet with [HR Director] today at 2:30
                 to discuss your FMLA and how it affects you
                 interviewing, however, he cancelled.

                 So as it stands, because you are out on FMLA, you will
                 not be able to interview for the [SSS III] position.

                 On Monday, I will meet with [HR Director] and go over
                 your FMLA paperwork, if [HR Director] has any
                 questions, I’m sure he will call.1

Appellee did not interview for the vacant position on August 13, 2012.

                                  PROCEDURAL HISTORY

          Appellee filed a Step 1 merit grievance on September 21, 2012. A Step 1

decision was issued on October 17, 2012. Appellee appealed. A Step 2 hearing

was held on October 24, 2012, with a decision issued November 8, 2012. Appellee

filed a Step 3 appeal. The Step 3 hearing was held on December 20, 2012, and



1
    R. at 107, Del. Fam. Ex. E.
                                            2
Appellee’s grievance was denied on January 15, 2013. Appellee then appealed to

MERB on January 30, 2013.

       A MERB hearing was held on September 5, 2013. As a preliminary matter,

MERB heard Family Court’s Motion to Dismiss Appellee’s appeal for failure to

file the Step 1 grievance in a timely manner. MERB denied Family Court’s motion

and reviewed Appellee’s grievance on the merits. Family Court now appeals to

this Court.

                               STANDARD OF REVIEW

       This Court has appellate jurisdiction over final agency decisions pursuant to

29 Del. C. § 10142. On appeal, this Court must “determine whether [MERB] acted

within its statutory authority, whether it properly interpreted and applied the

applicable law, whether it conducted a fair hearing and whether its decision is

based on sufficient substantial evidence and is not arbitrary.” 2                    Substantial

evidence is “such evidence as a reasonable mind might accept as adequate to

support a conclusion.” 3 Questions of law are reviewed de novo.4




2
   Gibson v. Merit Empl. Relations Bd., 16 A.3d 937, 2011 WL 1376278, at *2 (Del. Apr. 12,
2011) (TABLE).
3
  Avallone v. State Dep’t. of Health & Soc. Servs., 14 A.3d 566, 570 (Del. July 27, 2011) (quoting
Person-Gaines v. Pepco Hldgs. Inc., 981 A.2d 1159, 1161 (Del. 2009)).
4
  Ward v. Dep’t of Elections, 14 A.3d 566, 2009 WL 2244413, at *1 (Del. 2009) (TABLE).

                                                3
                                    DISCUSSION

      Family Court contends that Appellee filed an untimely Step 1 grievance and,

therefore, MERB committed error in finding MERB had jurisdiction to hear

Appellee’s case. This Court agrees for the reasons that follow.

      This case involves the jurisdiction of MERB, a quasi-judicial body,

established to effect proper application of the State of Delaware Merit Rules.5 The

Merit Rules, pursuant to 29 Del. C. § 5931(a), provide for the establishment of a

plan to resolve and correct the grievances of State employees. Section 18 of the

Merit Rules outlines the procedure to file and resolve a State employee’s work

related grievance.     If the grievance is not resolved through the Section 18

procedure, the State employee can appeal to MERB. 6               MERB’s power and

authority is statutory and extends only to “cases properly before it in compliance

with the statutory law.” 7

      In Maxwell v. Vetter, the Delaware Supreme Court concluded that the

timeliness of an appeal to a quasi-judicial body, such as MERB, is a matter of

jurisdiction. 8 Indeed, MERB’s own Practice and Procedure Manual acknowledges




5
  29 Del. C. ch. 59; 29 Del. C. §§ 5902, 5906.
6
  29 Del. C. § 5931(c)(3); Del. Merit R. 18.9.
7
  Maxwell v. Vetter, 311 A.2d 864 (Del. 1973).
8
  Id. at 865. The Maxwell Court discussed appeals to the State Personnel Commission, which
MERB replaced in 1994. See 69 Del. Laws ch. 436 (1994).
                                            4
that “time limits for the grievance process are jurisdictional.”9 Merit Rule 18.6

requires the employee to file a Step 1 grievance “within 14 calendar days of the

date of the grievance matter or the date [the grievant] could reasonably be expected

to have knowledge of the grievance matter.” 10 Accordingly, the 14-day filing

period is jurisdictional and failure to file in a timely manner renders the grievance

void. 11

       In this case, the parties dispute the date on which the 14-day filing period

began to run. Family Court contends that the 14-day filing period began to run on

August 9, 2012, the date the matter subject to a grievance occurred, because that is

when Appellee was informed she could not interview for the SSS III position.

Appellee argues that the 14-day filing period did not begin to run until September

10, 2012, because that is the date of the next business day after the HR Director

told Appellee he would discuss Appellee’s grievance with the Return-to-work

Coordinator but did not follow up with Appellee.

       In response to the Family Court’s jurisdictional challenge and contrary to her

testimony at the hearing, Appellee claims she became aware that she had a

grievance on September 10, 2012, when the HR Director had not yet responded to

an inquiry made by Appellee. Specifically, on September 6, 2012, in preparation
9
   W. Michael Tupman, Delaware Department of Justice, Merit Employee Relations Board
Practice and Procedure Manual, at 78 (2013) (emphasis added).
10
   Del. Merit R. 18.6 (emphasis added).
11
   Del. Merit R. 18.4; Cunningham, Jr. v. State, 1996 WL 190757, at *2 (Del. Super. Mar. 27,
1996).
                                             5
for her return to work, Appellee spoke to the “Return-to-work Coordinator” from

the Office of Management and Budget. After the discussion, the Return-to-work

Coordinator sent an email message to Appellee stating that Appellee should have

been able to interview for the SSS III position despite being on FMLA leave. On

September 7, 2012, Appellee sent an email message to the HR Director relaying

the information she received from the Return-to-work Coordinator.       The HR

Director responded to Appellee by email message that same day, indicating that he

reviewed Appellee’s request and would discuss the matter with the Return-to-work

Coordinator.

      MERB concluded that the time began to run on September 10, the business

day after Appellee’s inquiry. According to MERB, Appellee’s Step 1 grievance,

filed on September 21, 2012, was timely. MERB therefore concluded it had

jurisdiction and heard the case on the merits.

1. Lack of Subject Matter Jurisdiction

       MERB incorrectly concluded that Family Court’s jurisdictional challenge

could be waived because it was not raised during the Step 1, 2, or 3 grievance

proceedings. MERB Chairperson Austin stated, “[w]e have had numerous cases

come before the Board where timeliness hasn’t been raised until [the hearing]. I

think until we decide how that’s going to be handled for everyone, we need to




                                          6
consider the matter . . . and save the other part for another day.” 12 MERB’s legal

counsel reasoned that hearing Appellee’s case on the merits was a matter of

fundamental fairness and not a matter of jurisdiction. This is incorrect as a matter

of law.

       Delaware law and MERB’s procedural rules are well-settled. According to

the Delaware Supreme Court, “subject matter jurisdiction is non-waivable [and]

courts have an independent obligation to satisfy themselves of jurisdiction if it is in

doubt.”13    Parties cannot confer jurisdiction upon a court by agreement or

consent. 14 A court may not acquire subject matter jurisdiction by estoppel.15

       Pursuant to Superior Court Civil Procedure Rule 12(h)(3), as followed by

MERB, “[w]henever it appears by suggestion of the parties or otherwise that the

Court lacks jurisdiction of the subject matter, the Court shall dismiss the action.”

The Delaware Supreme Court has made it clear that “lack of jurisdiction may be

raised at any time in the proceedings.” 16 Additionally, MERB’s own Practice and

Procedure Manual states, “time limits for the grievance process are

jurisdictional.”17    In fact, MERB’s own manual acknowledges time-barred


12
   R. at 168, T. at 18.
13
   Appriva S’holder Litig. Co. v. EV3, Inc., 937 A.2d 1275, 1284 (Del. 2007) (citing Nesbit v.
Gears Unlimited, Inc., 347 F.3d 72, 76-77 (3d Cir. 2003)).
14
   Maxwell 311 A.2d at 865.
15
   Bruce E.M. v. Dorthea A.M., 455 A.2d 866, 871 (Del. 1983).
16
   Maxwell, 311 A.2d at 866.
17
   W. Michael Tupman, Delaware Department of Justice, Merit Employee Relations Board
Practice and Procedure Manual, at 78 (2013).
                                              7
grievances as one of the most common grounds for granting an employer’s motion

to dismiss for lack of jurisdiction. 18        Thus, Family Court’s failure to argue

Appellee’s untimely Step 1 grievance during the Step 1, 2, or 3 grievance

proceedings did not waive the defense because the parties cannot confer

jurisdiction by failing to raise the challenge.

2. Deadline to file Step 1 Grievance

       This Court finds that the record evidence does not support MERB’s finding

that Appellee became aware of a matter subject to a grievance on September 10,

2012. To the contrary, Appellee’s own testimony indicates she was aware on

August 9, 2012 that she would not be permitted to interview on August 13, 2012.

Accordingly, substantial record evidence indicates that the matter subject to

grievance occurred on August 9, 2012.

       In Rodgers v. Department of Corrections, MERB held that grievants must

comply with the mandatory time limits under the Merit Rules throughout each step

of the grievance process. 19 MERB determined that the mandatory time limits of

the Merit Rules are not suspended pending a grievant’s request for document

production. Instead, MERB dismissed the grievant’s appeal for lack of jurisdiction

because the grievant failed to file a timely Step 1 grievance. 20 MERB concluded


18
   Id. at 10.
19
   Rodgers v. Dep’t of Corr., Decision & Order of MERB, No. 11-09-525, at 3 (Dec. 20, 2011).
20
   Id. at 3-4.
                                              8
that the grievant was required to file a timely grievance, even if minimally detailed,

while pursuing an inquiry into the specifics of the issue.21

      The circumstances of this case are similar to those in Rodgers. The grievant

in Rodgers was aware of a matter subject to a grievance but failed to file a timely

Step 1 grievance because he waited until he was denied access to documentation of

proof. Here, Appellee was aware of a matter subject to a grievance but failed to

file a timely Step 1 grievance. Both the grievant in Rodgers and the Appellee here

were aware of a matter subject to a grievance and waited before filing a grievance,

yet MERB started the 14-day clock at different times and reached different

conclusions as to timeliness. With respect to starting the 14-day filing period for a

timely Step 1 grievance, MERB’s Practice and Procedure Manual clearly states:

             the time limits to pursue administrative remedies do not
             permit the complainant to delay until he realizes or
             knows that the personnel action . . . was discriminatory.
             Rather, the clock begins to run when the complainant
             knows or reasonably should have known of the . . .
             ‘personnel action’ which gave rise to the
             discrimination.22

      The matter subject to a grievance occurred on August 9, 2012.               The

grievance was filed by Appellee on September 21, 2012. This was untimely and




21
  Id.
22
   W. Michael Tupman, Delaware Department of Justice, Merit Employee Relations Board
Practice and Procedure Manual, at 81 (2013).
                                          9
therefore Appellee waived her right under the Merit Rules to address her

grievance.

                                        CONCLUSION

         A challenge to subject matter jurisdiction must be heard at any time it is

raised; it is not subject to waiver. The record evidence does not support MERB’s

conclusion that Appellee filed her Step 1 grievance in a timely manner. As a

result, because the time limits of the Merit Rules grievance process are

jurisdictional, MERB had no jurisdiction to hear Appellee’s case on the merits.

MERB did not have jurisdiction over this case; therefore, MERB’s decision is

legally void. 23

         NOW, THEREFORE, this 25th day of September 2014, the September

11, 2012 MERB decision is hereby reversed and vacated.

         IT IS SO ORDERED.

                                                     Andrea L. Rocanelli
                                                     _______________________________
                                                     The Honorable Andrea L. Rocanelli




23
     Ford v. Pep Boys, 1989 WL 16987, at *1 (Del. Super. Feb. 21, 1989).
                                                10
