IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

Department of Transportation,

Appellant/Employer-Below, C.A. No.: NlSA-06-008 SKR
On Appeal from Decision of the
Merit Employee Relations Board
Docket No. 17-06-672

V.

Laura A. Keeley,

Appellee/Grievant-Below.

MEMORANDUM OPINION AND ORDER

This llth day of September, 2018, upon consideration of appellee (below-
grievant) Laura A. Keeley’s (“Keeley”) Motion to Disrnissl, appellant (below~
employer) Departrnent of Transportation’ s (“DelDOT”) Motion to Stayz, the parties’
respective Responses thereto3, and the parties’ oral arguments, it appears to the Court
that:

Factua| and Procedu_ral Background
l. Keeley Was a former employee of DelDOT.4 ln August 2016, Keeley

requested an advanced salary upon her promotion to her then-current position.5

 

1 Keeley’S Motion to Disrniss (“Mot. to Dismiss”) (Trans. lD. 62239427).
2 DelDOT’s Motion to Stay (“Mot. to Stay”) (Trans. lD. 62201921).

3 DelDOT’s Response to Keeley’s Motion to Disrniss (“Resp. to Mot. to Dismiss”) (Trans. ID.
62235537); Keeley"s Response to DelDOT’S Motion to Stay (“Resp. to Mot. to Stay”) (Trans. lD.
622393 82).

4 Mot. to Stay, 11 l.

Sla' '\ -. .. r,-‘. ' ' . n . ~ -.-y'~ ~_J,z:..',

DelDOT granted the salary increase, but not at the salary level Keeley Was initially
seeking6 Thus, Keeley brought a merit grievance (the “Grievance”) to contest the
result.7 The Grievance proceeded through the internal grievance Step process as
outlined in Merit Rule 18.8

2. Having succeeded at Step 1 but failing Steps 2 and 3, Keeley eventually
filed an appeal to the Merit Employee Relations Board (“MERB”).9 At a hearing
conducted on March 1, 2018, the MERB found that DelDOT had not timely appealed
the Step 1 decision, Which was rendered by Keeley’s then-direct Supervisor, to Step
2, so the matter Was final and binding at Step 1. The MERB then held that it had no
jurisdiction to consider the matter on its merits.10 The MERB also issued a Written
order, dated March 27, 2018 (the “March 27 Order”), in Which it not only affirmed
its oral decision made at the hearing, but further modified the Step l decision and
ordered DelDOT to pay Keeley a lump sum of back pay at the Salary level she Was
seeking.ll The March 27 Order Was mailed out one day later, on March 28, 2018.12

3. DelDOT filed a Motion for Reconsideration on April 12, 2018, seeking to

have the MERB modify its March 27 Order to delete the portion that orders DelDOT

 

6 Ia'.

7 Id.

8 Ia'.

9 ld. 11 2.

10 Id. 11 3.

ll Mot. to Stay, Ex. MERB’s March 27, 2018 Order, at 10 (“March 27 Order”).

12 Id. at 11. This represents one of those uncommon circumstances A final order of either a court
or an administrative agency is usually mailed out on the same day it is S‘igned. ‘ ~ f

2

to pay Keeley.13 The MERB, in a second order dated June 20, 2018 (the “June 20
Order”), denied DelDOT’s Motion for Reconsideration.14 On June 29, 2018,
DelDOT filed a Notice of Appeal, appealing both the March 27 and June 20 Orders
to this Court.15 Keeley filed a Motion to Dismiss the Appeal, and DelDOT filed a
Motion to Stay Enforcement of the MERB’s June 20 Order. These pending Motions
are the subject of this Memorandum Opinion and Order.
Motion to Dismiss

4. Superior Court Civil Rule 72(i) provides that an appeal from a board
decision may be dismissed “for untimely filing of an appeal, for appealing an
unappealable interlocutory order, for failure of a party diligently to prosecute the
appeal, for failure to comply with any rule, statute, or order of the Court or for any
other reason deemed by the Court to be appropriate.”16

5. Keeley contends that the Appeal should be dismissed because it is untimely
and/or otherwise invalid. Specifically, Keeley argues that, with regard to the March
27 Order, the Appeal is untimely because it was filed more than three months after

that Order was issued. ln addition, Keeley argues that DelDOT has no right to appeal

the June 20 Order because DelDOT did not timely file its Motion for

 

13 Mot. to Stay, 11 4.

14 Mot. to Stay, Ex. MERB s June 20, 2018 Order (“June 20 Order”).

15 Notice of Appeal (Trans. lD. 62189091). Briefing on this Appeal is now completed
16 supc1. cr Civ R. 72(1)

3

Reconsideration. This untimeliness, Keeley argues, deprived the MERB of
jurisdiction to consider the Motion for Reconsideration, and hence, the June 20
Order is a nullity.

6. The Court will first consider the validity of the Appeal as it pertains to the
June 20 Order. Keeley’s argument boils down to whether DelDOT’s Motion for
Reconsideration was timely filed before the MERB. lf a MERB rule existed that
addresses this issue, that rule should govern.17 However, the Merit Rules do not
provide for motions for reconsideration.18 Therefore, the Court will apply, by
analogy, Superior Court Civil Rule 59(d) (“Rule 59(d)”) to decide the issue of the
timeliness of DelDOT’s Motion for Reconsideration.19

7. Rule 59(d) provides that a motion to alter or amend a judgment must be

filed and served “not later than 10 days after the entry of the judgment.”20 However,

 

17 See Mclntosh v. Chrysler Corp., 1995 WL 339078, at *4 (Del. Super. Mar. 16, 1995) (holding
that an administrative agency is governed by its own procedural rules and the Superior Court Rules
have no binding effects on it).

18 The parties do not contest the MERB’s authority to hear a motion for reconsideration The
MERB seems to have taken the same position, as it heard DelDOT’s Motion for Reconsideration
and rendered a decision. The Court will thus analyze the matter on the assumption that the MERB
has such authority.

19 lt is common practice in this Court to apply its own Rules in reviewing an administrative
agency’s decision, when there is no applicable agency rule in place. See Wright v. Quorum Litig.
Serv., 1997 WL 524061, at *2 (Del. Super. Apr. 4, 1997) (applying Rule 60(b)(1) and its definition
of “excusable neglect” in reviewing an Unemployment Insurance Appeal Board’s decision when
there is no Board rule defining that term). Moreover, the parties here consent to applying Rule
59(d). They both agree that DelDOT’s Motion for'Reconsideration, which seeks to modify a
portion of the March 27 Order, is more akin to a motion to alter or amend a judgment under Rule
59(d), than a motion for reargument under Rule 59(e).

241 Super. Ct.~Civ. R. 59(d) (emphasis added).:

there is no “date of entry” in this case, because the MERB does not maintain a formal
docket as this Court does. Altematively, Keeley suggests that the 10-day period
started to run from March 27, 2018, i.e., the date the Order was signed, while
DelDOT contends that the starting date should be March 28, 2018, i.e., the date the
Order was mailed.21 The Court agrees with DelDOT.

8. The date of mailing/notification has significance in appealing a final
decision of an administrative board. The Administrative Procedures Act (“APA”),
which provides general guidance for all administrative proceedings and appeals
therefrom, states that an appeal from such a decision shall be filed “within 30 days
of the day the notice of the decision was mailecz’.”22 Other administrative agencies,
that have regulations in place addressing post-hearing or post-decision motions, also
use “date of mailing/notification” to calculate the period of time for filing such
motions. For example, the Unemployment Insurance Appeal Board allows a party
to file a motion for rehearing at any time within 10 days after “the date of notification
[of its final decision] or mailing thereof.”23 The lndustrial Accident Board even goes

further. lt allows any party who intends to challenge its decision, within ten days

 

21 The Motion for Reconsideration, filed on April 12, 2018, would have been timely if the lO-day
period started to run from March 28, but not from March 27. See Super. Ct. Civ. R. 6(a) (stating
that when the period of time allowed is less than ll days, intermediate Saturdays, Sundays, and
legal holidays shall bc excluded).

22 29 Del. C. § 10142(b) (emphasis added).

23‘Scc‘UlAB Rule 7.0; 19 Del. C. § 3322(a) (eh'zp,'zasis addeu“/.'

5

“after receipt of the [] decision,” to file a motion to request additional testimony or
argument24

9. The above-referenced statutes and rules demonstrate the intention of their
enacting bodies to permit sufficient time for the aggrieved party, after she receives
riotice, to determine whether to move to re-argue a board’s final decision. The same
rationale also exists under Rule 59(d), where the filing period starts on the day of
entry, rather than the day the judge signs the order. Through the Court’s electronic
filing and docketing system, parties are immediately notified when a Court order is
entered. Taking into consideration the principle of giving parties sufficient
notification, the Court finds that March 28, 2018 is the better place to start the 10-
day calculation Therefore, DelDOT’s Motion for Reconsideration is timely filed,
and the Appeal is valid with regard to the June 20 Order.

10. The Court will next consider whether the Appeal is timely as to the March
27 Order. The Court finds that it is. lt is well-established that a timely-filed Rule
59 motion tolls the finality of a judgment of this Court and the time period for
appealing it.25 Thus, the March 27 Order did not become final or appealable until

the MERB resolved DelDOT’s Motion for Reconsideration by issuing its June 20

Order. This Appeal was filed on June 29, 2018 and thus well within the 30-day

 

24 See lAB Rule 22 (emphasis added).
25 E.g., Tornaseiti v. Wi'/r)iington Sav. Fu,i1.'S0c ’y, FSL`; 672 A~.2d 61, 64 (De`l. 1996).

6

period to appeal the two MERB Orders as provided in the APA. Since the Appeal
is timely and valid with regard to both MERB Orders, Keeley’s request to dismiss
the Appeal is without merit.
Motion to Stay

ll. DelDOT petitions the Court to stay enforcement of the MERB’s June 20
Order, which directs DelDOT to pay Keeley a lump sum of back pay. The APA sets
forth prerequisites that must be met before this Court could stay enforcement of an
administrative decision. Specifically, it provides that the Court may stay
enforcement of such decision “only if it finds, upon a preliminary hearing, that the
issues and facts presented for review are substantial and the stay is required to
prevent irreparable harm.”26 Moreover, “simply outlin[ing] the issue[] before the
Court” is not enough to establish a “substantial issue,” the moving party must
establish “a reasonable probability of success on the merits.”27

12. DelDOT maintains that the following “substantial” issues of law and fact
are submitted for review: (1) whether the MERB can modify the Step l decision
when it does not have subject matter jurisdiction to consider the matter on its merits;

(2) whether the MERB can modify the Step 1 decision without convening a further

hearing to consider the issue; and (3) whether the MERB can modify the Step l

 

26 29 Del. C. § 10144.
27 Dept. ofTrans`p. v. Keeler~, 2010 WL 33'-1’-3235 at *l (Del. Super. Janl 28,' 2010)`.v ~- `»'

7

decision when it lacks substantial record evidence to render such a determination28
However, DelDOT offers no evidence and makes no argument that allows the Court
to conclude that it will prevail on the merits on those issues. By simply outlining
the issues before the Court, DelDOT fails to establish that those issues and facts are
substantial and warrant stay of enforcement of the June 20 Order.

13. Even assuming, arguendo, that DelDOT has satisfied the “substantial
issue” requirement under § 10144, it has not shown that the stay is required to
prevent irreparable harm. DelDOT contends that, since Keeley is no longer
employed by the State, it would suffer irreparable harm if Keeley later opposes the
return of the back pay should DelDOT succeed on this Appeal. This purported harm
amounts to mere speculation. DelDOT offers no evidence to suggest that Keeley
would refuse to reimburse DelDOT if required, and the Court has found none.

Conclusion

14. DelDOT’s filing of the Motion for Reconsideration is timely and tolls the
finality of the MERB’s March 27 Order. DelDOT has timely appealed the March
27 and June 20 Orders to this Court. DelDOT has failed to properly establish that it
will prevail on the merits of the issues presented, or that it will suffer irreparable

harm if the June 20 Order is enforced.

 

28 Mot. to Stay§ 11 7.

For the foregoing reasons, Keeley’s Motion to Dismiss is DENIED, and
DelDOT’s Motion to Stay is DENIED.

IT IS FURTHER ORDERED that DelDOT shall comply with the MERB’s
June 20 Order and pay Keeley a lump sum of back pay as instructed in that Order,

within 10 business days after this Memorandum Opinion and Order is entered.

  

IT IS SO ORDERED.

 

She]` . Rennie, Jud'ge

