Opinion
C.A. No. 00A-02-009.
Date Submitted: May 26, 2000.
Date Decided: August 22, 2000.
UPON APPELLEE'S MOTION TO AFFIRM GRANTED
Walter E. Sullivan, 2435 Grubb Road, Wilmington, DE 19810. Claimant-Below, Appellant is pro se.
Ilona M. Kirshon, Esq., Deputy Attorney General, Carvel State Office Building, 820 North French Street, 6th Floor, Wilmington, DE 19801. Attorney for Employer-Below, Appellee.
ORDER
On this 22nd day of August, 2000, upon review of the Opening Brief, Motion to Affirm and the record below, it appears to the Court that:
(1) Walter Sullivan ("Appellant") filed a grievance claiming that (i) there were procedural errors in his January 1, 1999 Performance Review due to non-critical criteria used to evaluate him; and (ii) he was given the "needs improvement" rating in retaliation for an earlier grievance he filed. Appellant's grievance went through the Four Step grievance process and he subsequently filed a grievance appeal to the Merit Employee Relations Board ("MERB") after receiving adverse decisions at each step. The Department of Health and Social Services ("Appellee") filed a Motion to Dismiss arguing that Appellant's grievance was really an attempt to re-litigate his complaints concerning his performance rating and that pursuant to Merit Rules 20.0340 and 21.0121 the MERB did not have jurisdiction to hear the appeal. The MERB found that Appellant's grievance was really a grievance of the "needs improvement" performance rating instead of a claim of retaliation, and that pursuant to Merit Rule 20.034, was not a grievable matter, i.e., not appealable to the MERB. With regard to Appellant's claim of a violation of Merit Rules 3.0800 and 3.0810 which relate to proper classification of job position, the MERB found that Appellant failed to file a timely appeal after the fourth step grievance process and dismissed the claim.
(2) Appellant claims that the grievance presently at issue is a retaliation grievance and therefore appealable. Appellant argues that the focus of his allegations through the Step 4 grievance hearings was always retaliation. Appellant claims that the use of a "redefined" rating process, which added non-critical work areas to determine the overall performance rating, is the basis for his retaliation claim. Appellant claims that the rating process was used to retaliate against him for the prior grievance he filed regarding Appellee's violation of Merit Rule No. 3.0810. Though the MERB found otherwise, Appellant argues that the supervisor who evaluated him was involved in previous grievances and that the supervisor used the overall rating to retaliate against him.
(3) Appellant also argues that the MERB erred in its role at the hearing. Appellant claims that the MERB's role at the hearing was only to hear and decide "jurisdictional" issues, i.e. whether the MERB had statutory authority to rule on the allegation of retaliation. Appellant argues that the MERB erred because it should not have decided whether the grievance was a dispute of the performance rating.
(4) In its Motion to Affirm, Appellee asserts that the MERB was correct in its findings that Appellant's claim of retaliation was really a "veiled attempt" to re-litigate his time-barred appeal regarding reclassification and to appeal the performance rating of "needs improvement", which is not a grievable matter. Appellee argues that pursuant to Merit Rules 20.0340 and 21.0121 Appellant had no right to appeal his 1999 performance evaluation beyond the head of the agency because he did not receive an overall performance evaluation of unsatisfactory. Appellee further argues that "it would be illogical to conclude that the MERB had jurisdiction to consider unsubstantiated retaliation challenges to his performance evaluation, and to use that as a vehicle to overturn the agency head's final decision as to the performance evaluation and to further award relief outside of the scope of the grievance."
(5) Appellee further argues that the MERB acted correctly in considering the issues presented as legal issues which did not require a factual hearing. Appellee contends that whether Appellant's complaints were grievable under the Merit System and appealable to the MIERB are jurisdictional issues.
(6) On a Motion to Affirm a decision of the MERB, the Court may grant the motion only if the legal issues are clearly controlled by settled Delaware law and if the MERB's factual findings are supported by substantial evidence.
Super. Ct. Civ. R. 72.1(b).
(7) Merit Rule 20.042 provides that "[n]o action will be taken that will threaten, intimidate or retaliate against the employee for initiating or processing a grievance." Merit Rule 21.0121 provides in pertinent part that "[a]ny employee may request a written review of his/her performance appraisal by the Personnel Commission [MERB] following an unacceptable Step 3 decision if the employee's overall performance appraisal was unsatisfactory and has directly led to the denial of a pay increase."
(8) The Court finds that the MERB's decision that Appellant's grievance does not constitute one of retaliation is supported by the record. At each Step of the grievance process it was consistently found that there was no evidence of retaliation and the performance rating of "needs improvement" was given based on the deficiencies in Appellant's work performance. The decisions stemming from Steps 1 through 3 of the grievance process specifically found that Appellant's "needs improvement" performance rating was based largely on Appellant's failure to submit monthly reports on time and failure to complete an assigned project. The record is devoid of any evidence that the rating was given in retaliation for a past grievance filed by Appellant. It appears to the Court that the only proof of retaliation that is being offered by Appellant is the fact the "needs improvement" rating was given subsequent to his filing a grievance regarding job reclassification. In his Opening Brief, Appellant explains that "non-critical work areas" instead of "critical work areas" were used to determine his overall performance rating and even argues this process violated an established guideline in performance rating yet his claims of retaliation are conclusory. Appellant merely states that this alleged violation of established guidelines equates to an act of retaliation.
(9) With regard to Appellant's argument that the evidence presented by Appellee at the MERB hearing did not relate to the purpose of the hearing which was to determine jurisdiction is without merit. Clearly, in order for the MERB to decide if the matter was appealable, it had to determine the true issue raised by Appellant's grievance. The MERB appropriately considered the evidence presented and determined that the real nature of Appellant's grievance was an objection to his performance rating and not a claim of retaliation and properly dismissed Appellant's appeal since pursuant to Merit Rules the underlying issue is not appealable to the MERB.
(10) The Court finds that there is clearly substantial evidence in the record, including but not limited to the decisions provided by the grievance process, to support the MERB's factual findings that Appellant's grievance was not one of retaliation but instead one contesting the performance rating. As such, settled Delaware law clearly controls. Pursuant to the Merit Rules Appellant's claim was not appealable to the MERB.
For the forgoing reasons Appellee's Motion to Affirm is hereby GRANTED.
IT IS SO ORDERED.