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Rausch v. Delaware Department of Health and Social Services

Superior Court of Delaware

December 18, 2018

LAURA RAUSCH, Appellant
v.
DELAWARE DEPARTMENT of HEALTH and SOCIAL SERVICES, Appellee.

          Date Submitted: October 18, 2018

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

          Laura Rausch, Pro Se Appellant.

          Kevin Slattery, Esquire, Department of Justice, Deputy Attorney General.

          Calvin L. Scott, Jr. Judge

         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 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.

         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 ...


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