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Billings v. Merit Employee Relations Board

Superior Court of Delaware, New Castle

February 13, 2015

JOY BILLINGS, Appellant,

Submitted: November 14, 2014

Upon Appellant's Appeal of the Merit Employee Relations Board's Decision:

Joy Billings, pro se, Appellant.

Kevin R. Slattery, Esquire, Delaware Department of Justice, Attorney for the Court of Common Pleas.


Ferris W. Wharton, Judge


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.


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 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]

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 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]

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, 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 ...

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