       IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

                                          )
                                          )
 LAURA RAUSCH,                            )
                                          )
             Appellant                    )
                                          )   C.A. No. N18A-07-001 CLS
             v.                           )
                                          )
 DELAWARE DEPARTMENT of                   )
 HEALTH and SOCIAL                        )
 SERVICES,                                )
                                          )
             Appellee.                    )


                         Date Submitted: October 18, 2018
                         Date Decided: December 18, 2018

               Upon Consideration of Appellant’s Appeal from the
                      Merit Employee Relations Board.
                                AFFIRMED




Laura Rausch, 2404 Sunset Lake Road, Newark, Delaware, 19702. Pro Se
Appellant.


Kevin Slattery, Esquire, Department of Justice, 820 North French Street, 6th Floor,
Wilmington, Delaware, 19801. Deputy Attorney General.


Scott, J.
        The issue before the Court is whether an employee, covered by a Collective

Bargaining Agreement, adhered to the filing deadlines for appeals as outlined in the

Agreement and the Merit Employee Relations Board’s Merit Rules.

                                        Facts

        Appellant Laura Rausch was previously employed as a Registered Nurse (RN)

in the Delaware Department of Health and Social Services. Appellant worked at the

Governor Bacon Health Center (GBHC), a 94 bed long-term residential facility for

elderly patients with chronic health conditions. Appellant worked at GBHC from

December 1, 2014, until January 6, 2018.1 Appellant’s position was covered by a

Collective Bargaining Agreement (CBA) between the Delaware Department of

Health and Social Services (DHSS) and a Division of the AFSCME, known as the

Merit Employee Bargaining Unit #6.

        In July 2016, Appellant received a promotion in error from RN II to RN III.

The career ladder path for RNs includes an intermediate level of RN II Level II

between RN II and RN III. Following an audit in April 2017, it was discovered

Appellant was not eligible for a promotion to RN III. Appellant was notified of the

error and she was notified of a retroactive correction of her classification and pay




1
    Appellant’s separation was unrelated to the grievance filed with the MERB.
                                           2
would be imposed. The correction resulted in an overpayment of Appellant’s wages

which Appellant was required to repay under 29 Del. C. § 5943.2

      Appellant followed the grievance process as outlined in her bargaining unit’s

2016 CBA. Appellant argued the modification of her promotion was a violation of

the CBA relating to discipline without just cause. Appellant further argued she bore

a greater responsibility working at the RN III level, and as a result should be allowed

to retain the overpayment.

      The grievance process proceeded without incident. Appellant had a review at

Step 3 with the Department Secretary, and at Step 4 with the Cabinet Secretary. The

decision at that time was that despite the error that resulted in Appellant’s promotion

of two levels instead of one, there was no violation of the CBA, therefore the

overpayment of wages must be paid back in accordance with State law. The Cabinet

Secretary’s decision was dated October 25, 2017, and sent to Appellant and her

union representative via email. The Board accepted as fact that Appellant did not

receive this decision until November 15, 2017.

      Appellant filed an appeal with the Department of Human Resources (DHR)

Secretary on December 5, 2017. On December 20, 2017, Appellant was notified that

her appeal was not timely filed, therefore the DHR Secretary could not proceed.



2
 29 Del. C. § 5943 (c): (The State may maintain an action for the reimbursement of
wages, benefits or both … against the recipient employee.)
                                         3
      Appellant then appealed that decision to the Merit Employee Relations Board

(MERB). A MERB hearing was held on April 19, 2018. The MERB concluded as a

matter of law Appellant’s grievance was controlled by the CBA, and that her appeal

to Director of Labor Relations and Employment Practices must have been filed

within 10 days of the Cabinet Secretary’s decision. The appeal to the Director of

Labor Relations was not timely filed, and therefore the MERB did not have

jurisdiction to hear the grievance.

                                      Parties Assertions

      Appellant’s opening brief to this Court pleads the merits of her case, as well

as addressing the issue of timeliness addressed by the MERB. Appellant argues her

appeal to the MERB was made within 20 days of the receipt of her Step 3 decision

from the Cabinet Secretary, and therefore timely. Appellant argues she followed the

procedures as set forth in the CBA, which states that if the grievant disagrees with

the Step 3 decision, and the grievance involves a subject governed by the Merit

Rules, the appeal should be pursued according to Merit Rules 18.8 and 18.9.

Appellant argues the MERB website and the Merit Rules state an appeal from a Step

3 decision may be filed within 20 calendar days from the receipt of the decision.

      The State responds that pursuant to either the CBA or the Merit Rules,

Appellant was late in filing her appeal from the Cabinet Secretary’s decision. The

State argues pursuant to the CBA, an appeal to the Director of Labor Relations and

                                           4
Employment Practices must have been filed within 10 days of the Secretary’s

decision, and an appeal under the Merit Rules was required to be filed within 14

days of the Secretary’s decision. The State contends that under either, the filing was

late, therefore the MERB lacked jurisdiction to hear the grievance.

                                 Standard of Review

        In an appeal from the decision of an administrative board, the Court must

determine if the board’s decision is free from legal error, and supported by

substantial evidence.3 When the issue on appeal is whether or not proper legal

principles have been applied, the Court's review is de novo.4

                                          Analysis

        The only issue of fact before the MERB was the date Appellant received the

decision of the Cabinet Secretary. The Board accepted Appellant’s argument that

she did not receive the Secretary’s decision on October 25, rather that she received

it on November 15, 2017. For the sake of this appeal the Court will use the November

15th date.

        The CBA provides a written grievance process for covered employees to

follow in the event of a dispute between an employee and the State. The CBA

grievance procedure provides for sequential steps numbered 1 through 4 followed



3
    Olney v. Cooch, 425 A.2d 610, 613 (Del. 1981).
4
    Johnson Controls, Inc. v. Fields, 758 A.2d 506, 509 (Del. 2000).
                                           5
by arbitration of disputes. Appellant’s next step in the process was Step 4. Step 4

states:

                 If the Grievant … disagrees with the Step 3 decision, it may be
          appealed to Pre-Arbitration if the grievance involves a provision of the
          [Collective Bargaining] Agreement. Notice of any appeal to Pre-
          Arbitration shall be filed in writing with the State’s Director of Labor
          Relations and Employment Practices […] within 10 days from the date
          of the Step 3 decision. If the grievance involves a subject governed by
          the Merit Rules and is appealed, it shall be appealed pursuant to Merit
          Rules 18.8 and 18.9.”5

          The appeal from the Cabinet Secretary’s October 25, 2017 decision should

have been directed to either the Director of Labor Relations under the CBA, or the

DHR Secretary under Merit Rule 18.8. The filing period for that appeal was either

10 or 14 days respectively.6

          The MERB determined the subject of the grievance was controlled by the

CBA. Accordingly, Appellant had 10 days to file an appeal to Director of Labor

Relations. Accepting as fact Appellant did not receive the Cabinet Secretary’s

decision until November 15, 2017, a timely appeal needed to be filed by November

25, 2017. Appellant’s notice of appeal was filed with the DHR Secretary on

December 5, 2017, 10 days after the deadline.




5
 CBA § 6.7.1
6
 Both the Merit Rules and the CBA specify the calculation of time as “calendar
days.”
                                    6
        Applying the deadline imposed by the Merit Rules produces the same result.

For an adjudication on the merits by the MERB, Appellant was first required to file

an appeal under Merit Rule 18.8 to the DHR Secretary. Appellant’s filing to the

Secretary was 6 days beyond the 14-day filing period. As stated in the CBA and the

Merit Rules, a grievant’s failure to abide by the filing requirements results in the

matter being considered settled.7

                                        Conclusion

        Rausch failed to appeal her grievance within the time allowed under both the

Collective Bargaining Agreement and the Merit Rules. The MERB was without

jurisdiction to hear her grievance. For the foregoing reasons, the Board’s decision is

Affirmed.

        IT IS SO ORDERED.

                                                     /s/ Calvin L. Scott
                                                     Judge Calvin L. Scott, Jr.




7
    CBA § 6.2 and Merit Rule 18.4
                                          7
