Opinion
C.A. No. 99C-12-036
Submitted: June 23, 2000
Decided: September 29, 2000
Upon Consideration of Defendant's Motion For Summary Judgment
GRANTEDSuzanne MacPherson-Johnson, Esq., Dover, Delaware. Attorney for Plaintiff.
Ilona M. Kirshon, Esq., Wilmington, Delaware. Attorney for Defendants.
ORDER
Upon consideration of the defendant's motion to dismiss, the plaintiffs response thereto, and the record of the case, it appears that:
1. In this civil action the plaintiff alleges that she was wrongfully terminated from her position as a Senior Family Service Specialist with the Department of Services for Children, Youth and Their Families (the "Department"). The defendant has filed a motion to dismiss the complaint alleging several grounds for dismissal, one being that the suit is barred by the doctrine of sovereign immunity. I conclude that sovereign immunity is an absolute bar to the plaintiffs claim, and that the motion must therefore be granted.
2. In May 1997 Ms. Kopicko was employed by the defendant as a casual seasonal worker. The following July she became a full time Senior Family Service Specialist. The first year of her employment was a probationary period. According to the allegations of the complaint, the plaintiff performed her duties as a Senior Family Service Specialist in a competent and timely manner. However, she alleges, during the course of her employment she was instructed to remove, delete and change key information in her memoranda and reports, information which she considered to be relevant and critical to her investigations. In addition, on occasion she was instructed to change conclusions concerning her investigations regarding findings of abuse, neglect and dependency which did not conform to the opinion of her supervisor. Ms. Kopicko attempted to comply with the instructions she was given, even though she disagreed with them. After the plaintiff voiced her concerns about children at risk and the changes she was instructed to make in her memoranda of reports and investigations, her immediate supervisor recommended that she be terminated. The grounds cited were that she had exhibited an inability to follow directions and a resistance to supervision, an inability to accurately assess safety and risk and an inability to meet established deadlines. On December 31, 1997, the Secretary of the Department terminated the plaintiff from her position. Ms. Kopicko did not file a grievance or appeal under the Merit Rules. She did file a complaint with the Department of Labor, which was resolved against her. On December 30, 1999, she filed this action, seeking damages on the grounds of bad faith, wrongful termination and reinstatement to her position.
29 Del. C. § 5922 and Chapter 11 of the Merit Rules provide that a classified State employee is a probationary employee for up to the first twelve months of employment. The plaintiff was a classified employee.
At argument on the motion, the plaintiff acknowledged that this court lacks the authority to reinstate her to her position.
3. In support of its motion to dismiss, the defendant contends that the plaintiff's suit is barred by the one year statute of limitations contained in 10 Del. C. § 8111, that it is also barred by the State's sovereign immunity, and that the plaintiff failed to exhaust her administrative remedies. In support of its sovereign immunity argument, the defendant has filed an affidavit of Keith D. Barron, the State Risk Manager of the State of Delaware, stating, in summary, that the State has not obtained any insurance which would be applicable to the claim asserted by the plaintiff, that the General Assembly has not appropriated any funds for obtaining such insurance and that the State has not established any self insured program applicable to the plaintiffs claim. The plaintiff opposes the motion.
Since the court finds the sovereign immunity issue dispositive, the other grounds asserted by the defendant are not considered.
This affidavit was offered pursuant to 18 Del. C. § 6511.
4. Preliminarily, it should be noted that when a document outside the pleadings is considered in connection with a motion to dismiss, the motion must be considered as motion for summary judgment. Accordingly, all facts must be read in the light most favorable to the non-moving party.
Shultz v. Delaware Trust Company, Del. Super., 360 A.2d 576 (1976).
5. Summary judgment is appropriate if, after viewing the record in the light most favorable to the non-moving party, the court finds no genuine issue of material fact. If the movant supports the motion with the proper affidavits, the burden shifts to the non-moving party to show, using support taken from the developed record or with opposing affidavits, that a material issue of fact exists. If there is a reasonable indication that a material fact is in dispute or if it seems desirable to inquire more thoroughly into the facts in order to clarify the application of the law, summary judgment will not be granted. However, when the facts permit a reasonable person to draw but one inference, the question becomes one for decision as a matter of law.
Guy v. Judicial Nominating Comm'n, Del. Super., 659 A.2d 777, 780 (1995), appeal dismissed, Del. Supr., 670 A.2d 1338 (1995).
Moore v. Sizemore, Del. Supr., 405 A.2d 679, 681 (1979); Del. Super. Civ. R. 56(e).
Ebersole v. Lowen grub, Del. Supr., 180 A.2d 467, 479 (1962), rev'd in part and aff'd in part, 208 A.2d 495 (1965).
Wooten v. Kiger, Del. Supr., 226 A.2d 238 (1967).
6. Sovereign immunity is an absolute bar to liability claims against the State unless it is waived by the General Assembly. The General Assembly has addressed State employees' rights through the adoption of Chapter 59 of Title 29 of the Delaware Code and the Merit Rules adopted pursuant thereto, which form a comprehensive system governing the State employees. The Director of State Personnel and the Merit Employee Relations Board are given extensive authority to protect employees' rights through the grievance procedure, including the authority "to grant back pay, restore any position, benefits or rights denied, place employees in a position they were wrongfully denied, or otherwise make employees whole." If an employee who has completed the probationary period is dismissed, and that dismissal is upheld by the Merit Employee Relations Board, the employee has the right to appeal that decision to this Court. In addition, 29 Del. C. § 5943 gives certain employees, such as employees employed in contravention of the Merit Rules, the right to file a suit against the State officer who did the hiring to recover wages for work actually performed.
Turnbull v. Fink, Del. Supr., 668 A.2d 1370 (1995).
7. It does not appear, however, that there is any provision which gives a dismissed State employee the right to bring a direct suit alleging wrongful termination against a State agency in this Court. I am aware of no provision which constitutes a waiver of sovereign immunity as to such suit, and none has been brought to my attention. This Court has previously held that a suit by a dismissed State employee filed in this Court against an agency of the State is barred by sovereign immunity.
Marker v. Talley, Del. Super., 1986 WL 6769, Mastin, R.J. (June 11, 1986) (Order).
8. Under the Merit Rules, probationary employees do not have the right to appeal decisions not to retain their services, except in some cases of discrimination on the basis of non-merit factors. The letter of dismissal which the plaintiff received from the Secretary of the Department stated that as a probationary employee she did not have the right to appeal his action. It has been suggested in this action that the plaintiff may have had a right to appeal her dismissal through the grievance procedure on the grounds that it was based on non-merit factors. The statement in the letter she received that she did not have a right to appeal may explain why she did not attempt a grievance on this grounds. I express no opinion on whether the plaintiff could have filed an appeal from the Secretary's decision. I do conclude, however, that the circumstances of her not pursuing an appeal through the grievance procedure do not overcome the absolute bar which sovereign immunity presents in this case.
Merit Rule 11.0500
9. Therefore, the defendant's motion for summary judgment is granted .
IT IS SO ORDERED.