      IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

                  IN AND FOR NEW CASTLE COUNTY


JOY BILLINGS,                            )
                                         )
     Appellant,                          )
                                         )
           v.                            )     C.A. No. N14A-03-011FWW
                                         )
                                         )
MERIT EMPLOYEE RELATIONS                 )
BOARD,                                   )
                                         )
     Appellee.                           )

                       Submitted: November 14, 2014
                        Decided: February 13, 2015

  Upon Appellant’s Appeal of the Merit Employee Relations Board’s Decision:
                                AFFIRMED.

                          OPINION AND ORDER




Joy Billings, pro se, 89 Pike Creek Road, Apartment 6B, Newark, Delaware
19711, Appellant.

Kevin R. Slattery, Esquire, Delaware Department of Justice, 820 North French
Street, Wilmington, Delaware 19801; Attorney for the Court of Common Pleas.



WHARTON, J.
                              I. INTRODUCTION

      Joy Billings (“Appellant”) filed a Notice of Appeal on March 17, 2014

requesting judicial review of the February 17, 2014 decision of the Merit

Employee Relations Board (“MERB”). Appellant contends that the MERB erred

in upholding her termination and rejecting her hostile work environment claims.

Additionally, Appellant asserts that the MERB erred in making certain evidentiary

rulings, that the process of appeal to the MERB was overly confusing and that a

job post advertising the vacancy at her job position was made prematurely.

      In considering the appeal, the Court must determine whether the MERB’s

decision to uphold Appellant’s termination and reject Appellant’s hostile work

environment claims is supported by substantial evidence and free of legal error.

Upon consideration of the pleadings before the Court and the record below, the

Court finds that there is substantial evidence to support the MERB’s ruling and the

MERB did not err in reaching its decision. Accordingly, the MERB’s decision is

AFFIRMED.

               II. FACTUAL AND PROCEDURAL CONTEXT

      Appellant was employed as an Administrative Specialist I with the

Investigative Services Office (“ISO”) in the Court of Common Pleas (“CCP”) of

the State of Delaware from January 2001 until she was terminated on December




                                         2
10, 2012. 1 Prior to 2009, ISO employees did not receive regular performance

reviews 2 but, in November 2009, a new Chief Investigative Services Officer

(“Chief”) was hired and he created performance plans for every ISO employee that

he supervised, including Appellant, and began conducting regular performance

reviews.3 According to Appellant’s first performance plan, her role was to provide

administrative support for the ISO Unit. 4 Appellant’s duties included: maintaining

data and filing systems; composing correspondence; communicating effectively

with staff, employees and the public; and executing instructions from ISO staff. 5

       In her 2010 mid-year review, Chief gave Appellant an “unsatisfactory”

rating. 6 Some of the issues Chief documented in the review were that Appellant

could not maintain the filing system, made numerous errors in prepared

correspondence and that other co-workers had not given Appellant work for over

eight months because Appellant’s work product was unacceptable.7 As a result of

that review, Chief sent Appellant to professional skill development courses in May

and June of 2010. 8




1
  R. at 766.
2
  R. at 478
3
  R. at 479.
4
  R. at 429.
5
  Id.
6
  R. at 422.
7
  R. at 423-27.
8
  R. at 426-27.
                                         3
       Appellant also received an “unsatisfactory” rating on her next performance

review which covered May 2010 through September 2010. 9 In that review Chief

noted that Appellant continued to make the same errors.10 Chief directed

Appellant to attend additional professional training courses. 11 Appellant’s next

three performance reviews which covered September 2010 through August 2011

were all “unsatisfactory.” 12 Chief detailed the same type of mistakes being made

and noted that the classes seemed to have no effect on Appellant’s level of

performance. 13 By letter dated November 22, 2011, the Court Administrator

confirmed that Appellant was on a three month period of probation for her poor job

performance beginning October 26, 2011 through January 26, 2012.14

       Around the same time, Appellant approached the Court Administrator and

alleged that Chief was creating a hostile work environment. 15 Appellant contended

that Chief was using the performance evaluations to harass her and that she felt she

was not receiving fair evaluations.16 Appellant also alleged that Chief had an

offensive talking doll in his office that he used to harass her and that there were




9
  R. at 412.
10
   R. at 413-19 .
11
   R. at 419.
12
   R. at 404; 390; 381.
13
   R. at 381-410.
14
   R. at 373.
15
   R. at 532.
16
   Id.
                                           4
offensive cartoons in the break room that contained profanities. 17 The Court

Administrator investigated the incidents and Chief was required to remove the

talking doll from the workplace.18 The Court Administrator also temporarily

reassigned Appellant to the CCP Costs and Fines Unit to work under a different

supervisor in December 2011. 19 Appellant received another “unsatisfactory”

performance review on July 5, 2012 from the Costs and Fines supervisor.20

       In July 2012, the Court Administrator transferred Appellant back to the ISO

Unit and Appellant executed a “Last-Chance Agreement” wherein she was given

three months to bring her job performance up to a “meets expectations” standard

and was subject to monthly performance reviews.21 Appellant received three

“unsatisfactory” ratings for each month from July 9, 2012 through October 9,

2012. 22

       By letter dated October 17, 2012, Chief recommended that Appellant be

dismissed. 23 A pre-decision meeting was held on November 14, 2012 and the

Court Administrator terminated Appellant’s employment by letter effective

December 10, 2012.24


17
   R. at 536-37.
18
   R. at 537.
19
   R. at 373.
20
   R. at 365-66.
21
   R. at 292-99.
22
   R. at 283; 275; 265.
23
   R. at 254-62.
24
   R. at 242-52.
                                         5
       On January 11, 2013, Appellant filed a merit system grievance appeal to

both the MERB and the Office of Management and Budget’s (“OMB”) Human

Resources Management Section.25 On March 26, 2013, an OMB Hearing Officer

upheld Appellant’s dismissal 26 and Appellant pursued her appeal to the MERB.

The MERB held a hearing on February 6, 2014 and issued its written opinion

upholding Appellant’s termination for just cause and dismissing Appellant’s

hostile work environment claims. 27

       A. The Pre-Hearing Conference and Hearing

       Prior to the February 6, 2014 hearing, Appellant submitted various

documents to the MERB including a brief totaling over 200 pages that was not

organized.28 In an attempt to clarify the factual and legal issues, a MERB Referee

held a pre-hearing conference with the parties on September 24, 2013. The day

before the pre-hearing conference, Appellant submitted several hundred pages of

additional documents allegedly pertaining to her MERB hearing. 29 The Referee

recommended that the MERB exclude all but thirteen pages of Appellant’s initial

submissions because the Referee found that they were irrelevant. 30 Additionally,




25
   R. at 1.
26
   R. at 431-36.
27
   R. at 765-775.
28
   R. at 221.
29
   R. at 222.
30
   Id.
                                         6
the Referee recommended that the MERB exclude all documents submitted the day

before the pre-trial conference as untimely. 31

       The Board accepted the Referee’s recommendations and further limited the

subject matter of the hearing to only those three performance reviews received

after the “Last-Chance Agreement” was executed because the MERB determined

that Appellant’s failure to timely grieve the prior performance reviews precluded

MERB review. 32 The MERB also permitted testimony related to the hostile work

environment claim. 33

       At the February 6, 2014 hearing, the Court Administrator and Chief testified

as representatives of the CCP and Appellant testified on her behalf. Appellant had

requested that Arthur Stone, a former CCP colleague, be subpoenaed to testify on

Appellant’s behalf regarding the hostile work environment claim but Stone failed

to appear at the hearing despite being properly subpoenaed. 34 The MERB

determined, after hearing all of the other evidence, that Stone’s testimony would

not aid the MERB in rendering a decision.35 The Court will not recount in its

entirety the testimony that can be obtained from the record but will note some of

the relevant portions related to Appellant’s job performance and hostile work

environment claim.
31
   Id.
32
   Tr. at 23: 17-23.
33
   Tr. at 26: 11-22.
34
   Tr. at 15: 19-20.
35
   Tr. at 265: 22-24; 266: 1.
                                           7
                i.     Appellant’s Job Performance

        Chief testified that Appellant was under a “Last-Chance Agreement”

beginning in July 2012 when she returned to the ISO Unit.36 He testified that

Appellant was given three monthly reviews under the agreement and that for the

first review, covering July 9, 2012 to August 9, 2012, Appellant earned an

“unsatisfactory” rating because there were multiple areas in which Appellant’s job

performance was deficient.37 Chief recounted incidences of incorrectly maintained

case logs, 38 incorrect statistical reports 39 and major issues with Appellant’s typing

and correspondence skills including numerous typographical errors.40 Chief

testified that he counseled Appellant and provided her opportunities to correct her

mistakes but that Appellant continually submitted “very, very poor work.”41 Chief

testified that he provided the written performance review to Appellant including

samples of some of the issues related to Appellant’s work performance and that

Appellant acknowledged that she had read and understood the performance

review. 42

        Chief testified that he issued a second “unsatisfactory” monthly performance

review, covering August 9, 2014 through September 9, 2014, because Appellant

36
   Tr. at 32:19-24.
37
   Tr. at 34: 1-7.
38
   Tr. at 36: 22-24.
39
   Tr. at 37:19-22.
40
   Tr. at 38: 13-24.
41
   Tr. at 39: 3-4.
42
   Tr. at 39: 8-19.
                                           8
exhibited similar deficiencies in job performance that Chief had memorialized in

the first monthly performance review. 43 Additionally, Chief testified that the final

monthly review, covering September 9, 2012 through October 9, 2012, was also

“unsatisfactory” for similar reasons contained in the first two monthly performance

reviews.44 He testified that Appellant acknowledged receiving all three monthly

performance reviews 45 and that Appellant did not grieve any of the performance

reviews.46 Additionally, Appellant conceded that she did not grieve the negative

reviews.47

       Additionally, Chief testified that the court administration enrolled Appellant

in four professional training classes to assist her in improving her work

performance and simplified her job responsibilities prior to executing the “Last-

Chance Agreement.” 48 He stated that, ultimately, he recommended Appellant’s

termination because he “felt over a two-year period [the court administration]

exhausted every means possible in trying to get [Appellant’s] performance to meet



43
   Tr. at 43: 6-15.
44
   Tr. at 46: 12-18; 47:6-8.
45
   Tr. at 39:8-19; 42:23-24- 43:1; 46:22-23.
46
   Tr. at 43: 2-5; 46:24-47:2.
47
   See Tr. at 205:6-13. Appellant testified that she did not grieve the negative performance
reviews because
                 if someone gives you a really negative performance review, you
                 could imagine you are exhausted. You have to fight for each issue
                 in the performance review. No, I did not because it was a lot of
                 them were in general and offensive, so I did not. I was waiting for
                 [Chief] to write me a single written reprimand on topics…
48
   Tr. at 47:14-18.
                                                 9
the expectation level, the minimum expectation level for [the ISO] office. It just

wasn’t there.” 49

        The Court Administrator testified at the hearing that she had temporarily

placed Appellant in the Cost and Fines Unit prior to Appellant executing the “Last-

Chance Agreement” because “there happened to be an employee out on extended

leave, and so it was an opportunity for [Appellant] to be evaluated, as she had

requested, by an independent evaluator.”50 She testified that Appellant exhibited

the same job performance issues in that unit 51 but that she “wanted to give

[Appellant] every opportunity to show [Court Administrator] that [Appellant]

could do the job.”52 The Court Administrator testified that the decision to

terminate Appellant was reached after a pre-decision meeting with Appellant

because “it was very clear that despite training, despite training classes, on-the-job

training, job shadowing, there didn’t seem to be any method that could be put to

use that effected any change in [Appellant’s] job performance.”53 The Court

Administrator asserted that Appellant’s job performance was so poor that “it was

either have [Appellant] sit downstairs and give her no work to do…or we had to




49
   Tr. at 49: 3-7.
50
   Tr. at 83: 7-18.
51
   Tr. at 85: 6-10.
52
   Tr. at 84: 21-23.
53
   Tr. at 86: 23; 87:1-3.
                                          10
make the decision that if it wasn’t going to work, that we needed to let her go and

replace her with somebody who was capable of performing the job functions.” 54

               ii.     Hostile Work Environment Claim

       Appellant testified that Chief had a talking doll in his office that played

various sayings including “Silence. I’ll kill you.”55 She testified that Chief played

it when she was nearby and she found the doll offensive because she is from an

island and is not accustomed to people playing pranks on one another.56 Appellant

contended that Chief was harassing her with the doll and that the sayings were

directed at her personally because Chief continued to play the offensive saying

even after Appellant did not laugh, participate or otherwise indicate that she

thought it was funny. 57

       Chief testified that he was given the doll as a gift from several co-workers 58

and that he was asked to remove the doll from the workplace in the fall of 2011.59

He testified that the doll played prerecorded statements that rotated and that he had

no control over which statement the doll played when he pressed the button. 60

Chief testified that after he was asked to remove the doll, he replaced the doll with



54
   Tr. at 87: 4-10.
55
   Tr. at 197: 22-24; 198: 1.
56
   Tr. at 198: 21-22.
57
   Tr. at 199: 1-5.
58
   Tr. at 50: 4-6.
59
   Tr. at 51: 12-14.
60
   Tr. at 57: 3-9.
                                           11
a picture of the doll.61 He testified that he was asked to remove the picture and he

complied. 62

        Appellant also testified that she found a specific cartoon posted in a break

room offensive because it contained a profanity. 63 Appellant admitted that she had

not complained about the cartoon when it was posted in the old courthouse and that

she had never asked for it to be removed despite seeing it since 2003. 64 Chief

testified that the cartoon in the break room that Appellant complained about had

been there when he became Chief and he did not post it. 65 He testified that at no

time prior to lodging a formal complaint had Appellant confronted him about the

doll or the cartoon.66

        At the hearing, Appellant referenced several incidents as evidence of an

alleged hostile work environment claims. She testified that Chief made her remove

a religious article from her desk 67 but admitted that the item had scripture written

on it.68 She asserted that a co-worker used a racial slur when relaying a message

from a member of the public in which the person identified Appellant as an




61
   Tr. at 51: 19-20.
62
   Tr. at 52: 2-5.
63
   Tr. at 59: 22-23.
64
   Tr. at 61: 8-24; 62:1.
65
   Tr. at 53: 13-16.
66
   Tr. at 53: 23; 54: 1-5.
67
   Tr. at 222: 17-20.
68
   Tr. at 228: 16-17.
                                           12
“oriental woman.” 69 Appellant conceded that a member of the public identifying

her as an “oriental woman” is not a racial slur but maintained that it is a “racial

issue.” 70 Appellant also asserted that she was offended by a comment made to

Arthur Stone that he “dresses like a pimp” because it is “a degrading sexual slur.” 71

However, Appellant acknowledged that the comment was not directed at her.72

Appellant also acknowledged that she did not report the incident to management

because she did not know how Stone felt about the remark. 73 Appellant testified

that Chief had distributed inappropriate birthday cards to two employees who

displayed the cards on their desks in their offices. 74 She asserted that the cards

offended her but acknowledged that they were not directed toward her. 75

Appellant contended that management permitted employees to play offensive

music that contained profanities in the workplace but did not assert that the

profanities were directed toward her.76

       The Court Administrator testified that in the fall of 2011, Appellant

contacted her and raised the issues of the doll and the cartoon. 77 She testified that



69
   Tr. at 230: 19-24; 231: 1-14.
70
   Tr. at 232: 9-10.
71
   Tr. at 226: 5-6.
72
   Tr. at 227: 3-5.
73
   Tr. at 15: 19-24; 16:1.
74
   Tr. at 134: 8-10.
75
   Tr. at 135: 3-4.
76
   Tr. at 180: 10-12.
77
   Tr. at 88: 18-24; 88: 1-2.
                                          13
Appellant did not raise job performance evaluation issues with her at that time. 78

The Court Administrator testified that she observed the doll and posters in the

workplace and made a recommendation that they be removed. 79 She testified that

they were removed the same day. 80 The Court Administrator asserted that

Appellant did not raise any other issues of harassment until after her pre-decision

meeting when she alleged that various colleagues had sexually harassed her.81

        B. The MERB’s Written Decision

        In a decision issued on February 17, 2014, by a unanimous vote, the MERB

denied Appellant’s appeal.82 The MERB found that Appellant executed the “Last-

Chance Agreement” with the understanding that failure to raise her performance to

“meets expectations” would result in termination. 83 The MERB also found that

Appellant’s performance review for the period July 9, 2012 through August 9,

2012 was unsatisfactory and that Chief had attached five single-spaced typewritten

pages detailing specific instances of Appellant’s job deficiencies for that period. 84

Additionally, the MERB determined that Appellant’s performance reviews for the

period August 9, 2012 through September 9, 2012 and for the period September 9,

2012 through October 9, 2012 were also unsatisfactory based upon the typewritten

78
   Tr. at 89: 3-6.
79
   Tr. at 89: 7-17.
80
   Tr. at 89: 22-23.
81
   Tr. at 90: 3-16.
82
   R. at 774.
83
   R. at 769.
84
   R. at 768.
                                          14
pages attached to the reviews in which Chief detailed Appellant’s job

deficiencies. 85 The MERB found that Appellant acknowledged receiving all three

reviews and noted on the bottom of the last two that her signature did not indicate

that she agreed with the assessment of her performance but the MERB noted that

Appellant did not grieve any of the three reviews. 86

       The MERB found that Chief notified Appellant of the intent to terminate her

by letter dated October 17, 2012 for failing to meet the terms of the “Last-Chance

Agreement” and that Appellant requested a pre-decision meeting. 87 The MERB

also found that the pre-decision meeting took place on November 14, 2012 and that

following the meeting, Appellant was notified by letter dated December 10, 2012

that she had been terminated from her position as an Administrative Specialist I

with the CCP for failure to meet the terms of her “Last-Chance Agreement.” 88

       Based upon those findings, the MERB concluded that the CCP

administration had just cause to terminate Appellant for an unsatisfactory job

performance pursuant to Merit Rule 12.1. 89 The MERB reasoned that the CCP


85
   Id.
86
   Id.
87
   Id.
88
   Id.
89
   See R. at 769. 29 Del. Admin. C. § 5914-12.1 states:
                Employees shall be held accountable for their conduct.
                Disciplinary measures up to and including dismissal shall be taken
                only for just cause. "Just cause" means that management has
                sufficient reasons for imposing accountability. Just cause requires:
                showing that the employee has committed the charged offense;
                                                15
administration had spent three years offering Appellant re-training, personal

counseling and transferred her to another unit and that, despite these efforts,

Appellant was unable to complete her job duties which harmed the ISO Unit and

other employees who had to perform additional work to compensate for

Appellant’s deficiencies.90 Moreover, the MERB ultimately concluded that “[t]he

[MERB] believes that the CCP bent over backwards to try to help [Appellant]

improve her job performance. When nothing seemed to work, the agency had just

cause to terminate her.” 91

       The MERB also determined that Appellant did not make out a prima facie

hostile work environment claim. 92 The MERB found that Appellant must prove

the following to make out a hostile work environment claim: 1) that Appellant

suffered intentional discrimination because of Appellant’s race, sex or religion; 2)

that the discrimination was pervasive and regular; 3) that the discrimination

detrimentally affected Appellant; 4) that the discrimination would detrimentally

affect a reasonable person of the same sex, race or religion in Appellant’s position;

and 5) that respondeat superior liability existed.93




               offering specified due process rights specified in this chapter; and
               imposing a penalty appropriate to the circumstances.
90
   R. at 769-70.
91
   Id.
92
   Id.
93
   Id.
                                               16
        The MERB found that although Appellant alleged that other co-workers

made racial slurs toward her, Appellant failed to provide the MERB with dates,

times or names of the offending employees. 94 Regarding Appellant’s claim that

co-workers disrespected her cultural heritage, the MERB determined that an

employee memorializing a complaint in which Appellant was described as an

“oriental woman” by a member of the public was not culturally or racially

motivated.95 Additionally, the MERB found that the “you dress like a pimp”

comment made to Arthur Stone and the allegedly offensive birthday cards given to

two employees were not directed at Appellant and had no particular racial or

sexual stigma attached to them. 96 The MERB also found that the alleged offensive

music played by a co-worker was not directed at Appellant personally and that

Appellant never requested that the music be turned off. 97 Finally, the MERB found

that where Appellant reported incidents to management, the incidents were

investigated and remediated.98

        The MERB determined that “[a]t most [Appellant] had shown a few,

isolated incidents of what may have been inappropriate or insensitive conduct in

the workplace by co-workers. The [MERB] does not believe that they were

directed towards [Appellant] to ridicule her race, national origin, gender, or
94
   R. at 771.
95
   Id.
96
   R. at 772.
97
   Id.
98
   R. at 773.
                                          17
religion.”99 Moreover, the MERB concluded that “[m]ost of the incidents

recounted by [Appellant] were not targeted at her race or sex or religion, or were

not pervasive or regular, or were not brought to the attention of management so

they would have an opportunity to investigate and, if necessary, to take prompt

remedial action.” 100

                          III. THE PARTIES’ CONTENTIONS

            Appellant characterizes the questions presented on appeal as follows:

                  A. Whether the Board’s decision was based upon a
                     limited acceptance by Deputy Attorney General,
                     Tupman counsel for Merb only 54 pages of “Written
                     Appeal” testimony from Appellant.         Given the
                     Appellant’s full complaint consisted of 248 pages in
                     its totality. ‘A controversy must remain alive
                     through the course of the appellate review.’
                     Moriarty, 588 A.2d at 1064. ‘ a change in the facts
                     can render an issue or entire case moot.’(quoting
                     Boocock, 553 A.2d at 575 n.3)…

                  B. Whether the Board erred in their process of ‘method
                     of appeal’ by giving conflicting instructions on the
                     MERB Form.

                  C. Whether the OMB at the Step 3 process violated
                     merit rules and employment rights with advertising
                     the Administrative Specialist I position, prior to
                     notifying employee of Step 3 decision.

                  D. Whether the Board applied Merit Rulings accordingly
                     as their guidelines dictate. Whereas, Merit Rule 12.2
                     states ‘Employees shall receive a written reprimand

99
     Id.
100
      Id.
                                              18
                  where appropriate based on specified misconduct, or
                  where a verbal reprimand has not produced the
                  desired improvement.’

               E. Whether the Board applied ‘harassment’ law
                  according to applicable case law.101

However, Appellant submitted very few discernable arguments addressing the

issues raised. In addition to these issues, Appellant asserts that the MERB

wrongfully precluded the testimony of Arthur Stone when he failed to appear at the

hearing.102

       Counsel for the CCP contends that the MERB’s decision was based upon

substantial evidence and free of legal error. 103 Specifically, Counsel for the CCP

argues that the MERB correctly determined that the CCP had just cause to

terminate Appellant,104 the MERB did not err in considering or applying the prima

facie elements for a hostile work environment claim, 105 the MERB’s evidentiary

rulings are entitled to great deference,106 and that arguments not raised before the

MERB should not be considered by the Court on appeal. 107




101
    Appellant’s Opening Br. at 4.
102
    Id. at 7.
103
    CCP’s Resp. Br. at 14.
104
    Id. at 15.
105
    Id. at 17
106
    Id. at 23.
107
    Id. at 22.
                                          19
                            IV. STANDARD OF REVIEW

       The MERB’s decision must be affirmed so long as it is supported by

substantial evidence and free from legal error.108 Substantial evidence is that

which a reasonable mind might accept as adequate to support a conclusion.109

While a preponderance of evidence is not necessary, substantial evidence means

“more than a mere scintilla.” 110 Questions of law are reviewed de novo 111 but

because the Court does not weigh evidence, determine questions of credibility, or

make its own factual findings, it must uphold the decision of the MERB unless the

MERB “acts arbitrarily or capriciously” or its decision “exceeds the bounds of

reason.” 112 Furthermore, “[j]udicial deference is usually given to an administrative

agency’s construction of its own rules in recognition of its expertise in a given

field.”113 Thus, an appellate court will not disturb an agency’s interpretation of its

rules unless the interpretation is “clearly wrong.” 114

                                   IV. DISCUSSION

       As an initial matter, the Court must address the substance and form of

Appellant’s submissions. Although it has long been recognized that pro se


108
    Unemployment Ins. Appeal Bd. of Dept. of Labor v. Duncan, 337 A.2d 308, 309 (Del. 1975).
109
    Oceanport Ind. v. Wilmington Stevedores, 636 A.2d 892, 899 (Del. Super. Ct. 1994) (citing
Olney v. Cooch, 425 A.2d 610, 614 (Del. 1981)).
110
    Breeding v. Contractors-One-Inc., 549 A.2d 1102, 1104 (Del. 1988).
111
    Ward v. Dep’t of Elections, 2009 WL 2244413, at * 1 (Del. Super. Ct. July 27, 2009).
112
    PAL of Wilmington v. Graham, 2008 WL 2582986, at *4 (Del. Super. Ct. June 18, 2008).
113
    Div. of Soc. Servs. V. Burns, 438 A.2d 1227, 1229 (Del. 1981).
114
    Id. at 1229.
                                             20
litigants should be afforded some leniency in presenting their case to the Court,

there is no different set of rules for pro se litigants to follow. 115 Moreover, “the

[pro se litigant’s] brief at the very least must assert an argument that is capable of

review.” 116 However, the Court prefers to decide cases on the merits where

possible rather than reject submissions for procedural deficiency. 117

       Appellant filed a Record on Appeal that consisted of over eight hundred

pages of transcripts and documents. 118 Additionally, Appellant filed a sixty-four

page “Opening Brief” that haphazardly referenced several excerpts from what

appears to be various documents, emails, personal anecdotes, CCP internal

procedures and quotations to case law that allegedly pertain to her appeal. 119 In the

voluminous submissions, Appellant does very little to articulate any discernible

argument. Therefore, in the absence of more concrete assertions but in an effort to

dispose of the case on the merits, the Court construes Appellant’s arguments as

follows: 1) The MERB Form for filing an appeal is confusing; 2) OMB wrongfully

posted a job opening for Appellant’s job position before her termination was

finalized; 3) the MERB erred in affirming Appellant’s termination; 4) the MERB

erred in denying Appellant’s hostile work environment claim; 5) the MERB erred

in accepting the Referee’s recommendations to limit the contents of her appeal
115
    Draper v. Med. Ctr. of Del., 767 A.2d 796, 799 (Del. 2001).
116
    In re Estate of Hall, 882 A.2d 761, at *1 (Del. 2005)(Table).
117
    City of Wilmington v. Flamer, 2013 WL 4829585, at *4 (Del. Super. May 22, 2013).
118
    See D.I. 7-8.
119
    See D.I. 18.
                                             21
submitted to the MERB; and 6. the MERB erred in concluding that the testimony

of Arthur Stone, one of Appellant’s witnesses, was unnecessary to render a

decision.

      A. The Court Must Preclude Issues Raised for the First Time on Appeal.

        When considering Appellant’s arguments on appeal, the Court is limited to

the record that existed at the time of the MERB’s decision. 120 Therefore, to the

extent than an issue was not previously raised before the MERB, the Court cannot

consider it now on the merits.121

        Appellant’s first two arguments, that the MERB appeal form is overly

confusing and that OMB improperly posted a job opening for Appellant’s position

prior to her termination, were not raised before the MERB. Therefore, the Court

declines to address the merits of those two arguments.

      B. The MERB’s Decision That the CCP Had Just Cause to Terminate
         Appellant is Supported by Substantial Evidence and Free of Legal
         Error.

        Appellant asserts that she was entitled to receive and did not receive

“reprimands” before being terminated in violation of Merit Rule 12.2. 122 However,


120
    See Hubbard v. Unemployment Ins. Appeal Bd., 352 A.2d 761, 763 (Del. 1976)(“Upon
appeal…the Superior Court is limited to consideration of the record which was before the
administrative agency”).
121
    Id.
122
    Merit Rule 12.2 provides, in relevant part:
               Employees shall receive a written reprimand where appropriate
               based on specified misconduct, or where a verbal reprimand has
               not produced the desired improvement.
                                              22
the Court has previously considered and rejected a similar argument when it

determined that performance-based terminations do not require that the employee

be given progressive discipline.123 Instead, performance-based terminations are

governed by the “just cause” standard which is defined as “legally sufficient reason

supported by job related factors that rationally and logically touch upon the

employee’s competency and ability to perform [her] job duties.”124

       Additionally, Merit Rule 12.1 defines “just cause” as “showing that the

employee has committed the charged offense; offering specified due process rights

specified in this chapter; and imposing a penalty appropriate to the

circumstances.”125 The due process requirements regarding performance reviews

are set forth in Merit Rules 13.1, 126 13.2127 and 13.3 128 and the due process




123
    Stanford v. MERB and DHSS, C.A. No. N10A-12-009 at 13(Del. Super. Nov. 30, 2011).
124
    Vann v. Town of Cheswold, 945 A.2d 1118, 1122 (Del. 2008).
125
    29 Del. Admin. C. § 5914-12.1.
126
    29 Del. Admin. C. § 5914-13.1 provides: “The Director shall provide for systematic
performance review to communicate expectations and responsibilities, recognize achievement,
and identify areas for skill development and work performance improvement.”
127
    29 Del. Admin. C. § 5914-13.2 provides, in relevant part: “Recognition of effort,
accomplishment, improvement or the need for further skill development shall be addressed as
needed by verbal discussions, written communication, and/or formal documentation.”
128
    29 Del. Admin. C. § 5914-13.3 provides:
                When an employee's work performance is considered
                unsatisfactory, the performance must be documented in writing,
                and the specific weaknesses must be made known to the employee.
                The employee shall be given documented assistance to improve by
                the designated supervisor. An opportunity for re-evaluation will be
                provided within a period of 3 to 6 months.
                                             23
requirements regarding employee termination are set forth in Merit Rules 12.4, 129

12.5 130 and 12.6. 131

          The MERB determined that the CCP had just cause to terminate Appellant

from her job for consistent poor job performance because the MERB found that the

CCP had spent three years offering Appellant re-training, personal counseling and

transferred her to another unit before terminating her.132 The MERB found that,

despite these measures, Appellant was unable to complete her job duties and it was

harmful to the ISO Unit and other employees who had to perform additional work

to compensate for Appellant’s job deficiencies. 133 The MERB noted that “[t]he




129
      29 Del. Admin. C. § 5914-12.4 provides:
                 Employees shall receive written notice of their entitlement to a pre-
                 decision meeting in dismissal, demotion for just cause, fines and
                 suspension cases. If employees desire such a meeting, they shall
                 submit a written request for a meeting to their Agency's designated
                 personnel representative within 15 calendar days from the date of
                 notice. Employees may be suspended without pay during this
                 period provided that a management representative has first
                 reviewed with the employee the basis for the action and provides
                 an opportunity for response. Where employees' continued presence
                 in the workplace would jeopardize others' safety, security, or the
                 public confidence, they may be removed immediately from the
                 workplace without loss of pay.
130
    29 Del. Admin. C. § 5914-12.5 provides: “The pre-decision meeting shall be held within a
reasonable time not to exceed 15 calendar days after the employee has requested the meeting in
compliance with 12.4.”
131
    29 Del. Admin. C. § 5914-12.6 provides: “Pre-decision meetings shall be informal meetings to
provide employees an opportunity to respond to the proposed action, and offer any reasons why
the proposed penalty may not be justified or is too severe.”
132
    R. at 769.
133
    R. at 770.
                                                  24
Board believes that the CCP bent over backwards to try to help [Appellant]

improve her job performance.” 134

            The facts contained in the record support the MERB’s ruling. Based upon

the detailed testimony of Chief and Court Administrator regarding Appellant’s

poor job performance including several poor performance reviews, additional

training opportunities provided to Appellant and a temporary transition to another

unit, there is substantial evidence to conclude that Appellant lacked the job related

factors required for that position. Therefore, the MERB did not err in determining

that the CCP had just cause to terminate Appellant.

            Additionally, the Court cannot find that the MERB was “clearly wrong” in

determining that the CCP satisfied the procedural requirements set forth in the

Merit Rules. There is substantial evidence in the record to support the findings that

Appellant was given several systematic performance reviews pursuant to Merit

Rule 13.1; in administering the performance reviews, CCP administration

documented Appellant’s weaknesses and gave her resources and opportunities to

improve pursuant to Merit Rules 13.2 and 13.3; and Appellant was afforded a pre-

decision hearing consistent with Merit Rules 12.4 through 12.6. Therefore, the

Court finds that the MERB’s decision to uphold Appellant’s termination is

supported by substantial evidence and free of legal error.


134
      Id.
                                             25
      C. The MERB’s Decision to Reject Appellant’s Hostile Work Environment
         Claims is Supported by Substantial Evidence and Free of Legal Error.

        Without being particularly specific, Appellant alleges that the MERB

improperly applied “harassment law.” 135 To establish a prima facie case for a

hostile work environment claim, the employee must show that: 1) the employee

suffered intentional discrimination as a result of her race, sex or religion; 2) the

discrimination was regular and pervasive; 3) the discrimination detrimentally

affected her; 4) that a reasonable person of her likeness would be detrimentally

affected; and 5) the employer is liable under the theory of respondeat superior.136

        The Court finds that the MERB appropriately applied the correct legal

standard and determined that “[a]t most [Appellant] had shown a few, isolated

incidents of what may have been inappropriate or insensitive conduct in the

workplace by co-workers. The [MERB] does not believe that they were directed

towards [Appellant] to ridicule her race, national origin, gender, or religion.” 137

The MERB also found that most of the incidents alleged were not brought before

management and that the few reported incidents brought to management’s

attention were properly investigated and remediated.138 The MERB concluded that

Appellant did not make out a hostile work environment claim. 139

135
    Appellant’s Opening Br. at 4.
136
    Hemphill v. Wilmington, et al., 813 F.Supp.2d 581, 587-88 (D.Del. 2011).
137
    R. at 773.
138
    Id.
139
    Id.
                                              26
        The Court finds that the record supports the MERB’s conclusions. The

MERB found that Appellant brought the doll and the cartoon to the attention of

CCP management and that the issues were swiftly remediated.140 Additionally, at

the hearing before the MERB, Appellant conceded that some of the incidents to

which she took offense were not directed at her personally but were aimed at other

co-workers 141 and Appellant admitted that being referred to as an “oriental

woman” by a member of the public was not a racial slur made by the co-worker

who repeated the message as stated to a supervisor. 142 Furthermore, Appellant did

not report any of the incidents to management besides the doll and cartoon until

her pre-decision meeting. 143 Therefore, the MERB did not err in denying

Appellant’s hostile work environment claim and the decision is supported by

substantial evidence.

      D. The Court Cannot Disturb the MERB’s Evidentiary Rulings Because
         There Is Substantial Evidence to Support the MERB’s Decision.


        Pursuant to 29 Del. C. § 10125(b)(3), the MERB has the authority to

“[e]xclude plainly irrelevant, immaterial, insubstantial, cumulative and privileged

evidence.” Moreover, it is clear that “[i]n dealing with evidentiary matters on

appeal, this Court does not stand as the trier of fact…and, therefore, it cannot

140
    R. at 772-73.
141
    See Tr. at 227: 3-5;135: 3-4; 180: 10-12.
142
    Tr. at 232: 9-10.
143
    Tr. at 90: 3-16.
                                                27
substitute its own opinion for that of the [MERB’s] if there is sufficient evidence to

support the [MERB’s] decision.”144

       Appellant asserts that the MERB erred in accepting the Referee’s

recommendations to limit Appellant’s submissions to the MERB and that the

MERB erred in concluding that Arthur Stone’s testimony would not affect the

MERB’s decision. Because the Court finds that the MERB’s decision is supported

by substantial evidence, the Court cannot evaluate evidentiary rulings that are

within the exclusive province of the MERB as the trier of fact.


                                   V. CONCLUSION

       The Court finds that the MERB’s decision is supported by substantial

evidence and free from legal error. Therefore, the decision of the MERB is hereby

AFFIRMED.



IT IS SO ORDERED.




                                           _______________________
                                           /s/ Ferris W. Wharton, Judge



144
   Lopicko v. Del. Dep’t of Servs. For Children, 2003 WL 21976409, at *3 (Del. Super. Aug. 15,
2003).
                                             28
