Moore v. State of Delaware Merit Employee Relations Board ( 2023 )

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
VENUS MOORE, )
)
Appellant, )
)
v. ) C.A. No. K22A-09-003 NEP
)
STATE OF DELAWARE MERIT )
EMPLOYEE RELATIONS BOARD, )
and DEPARTMENT OF HEALTH )
AND SOCIAL SERVICES, )
DIVISION OF MANAGEMENT )
SERVICES,1 )
)
Appellees. )
Submitted: January 27, 2023
Decided: April 6, 2023
ORDER
Upon Appeal from the Decision of the Merit Employee Relations Board
AFFIRMED
1. Appellant Venus Moore (hereinafter “Moore”) is a former employee of
the Department of Health and Social Services (hereinafter “DHSS”). Moore’s
employment at DHSS was terminated effective February 1, 2022, after a near-
continuous absence from work beginning on or around September 27, 2021. While
1
Although the appellant named only the Merit Employee Relations Board as the appellee in the
initial notice of appeal, the real party in interest is the Department of Health and Social Services,
the appellant’s former employer and the respondent below. See Gibson v. Merit Employee
Relations Bd., 16 A.3d 937, 2011 WL 1376278, at n.1 (Del. 2011) (TABLE) (“Although the
appellant named the Merit Employee Relations Board as the appellee in this appeal, the real party
in interest is the Violent Crimes Compensation Board, the appellant’s former employer and the
respondent below.”). The appellant later filed an amended notice of appeal naming both appellees.
Amended Notice of Appeal (D.I. 13).
1
the record is not entirely clear as to the timeline, it appears that Moore may have
obtained approval of a portion of that absence through the Family Medical Leave
Act (the “FMLA”). Prior to her termination, she had made allegations against her
supervisor of harassment and creating a hostile work environment, but those
allegations were never substantiated upon investigation.
I. FACTUAL AND PROCEDURAL BACKGROUND2
2. On October 1, 2021, Moore received a negative performance review
rating her overall performance as “Needs Improvement,” citing issues with missing
deadlines, failing to appear at the office in person when scheduled, and issues
completing assigned work independently as trained.3 Moore refused to sign the
performance review4 and instead drafted a six-page rebuttal dated October 4, 2021.5
3. On October 22, 2021, a disciplinary investigation was initiated because
Moore was allegedly failing to show up at work and was failing to submit requests
for leave or otherwise communicate with management about “submissions for leave
including FMLA . . .”6 The report recommended a written reprimand as the
appropriate sanction.7 While the record is unclear, Moore may have later received
retroactive FMLA leave to cover a portion of her absence.8
4. Prior to the negative performance review, Moore had submitted a
Respectful Workplace and Anti-Discrimination Workplace Form on August 23,
2021, alleging that her direct supervisor, Stacey Lynch (hereinafter “Lynch”), had
created a hostile work environment and was discriminating against Moore on
account of her race, color, age, family responsibilities, disability, veteran status, and
2
The facts herein are drawn from the official record on appeal (cited as “R. at ___”).
3
R. at 187–89.
4
R. at 189.
5
R. at 193–98.
6
R. at 200–202.
7
R. at 202.
8
See R. at 236.
2
other (“caretaker of a child with a disability”).9 In the section titled “Incident
Information,” Moore primarily took issue with Lynch’s tone and manner of speaking
to Moore when confronting her about unscheduled absences from in-person work.10
5. The Department of Human Resources (“DHR”) conducted an
investigation and sent a letter to Moore dated December 1, 2021, informing her that
her hostile work environment allegations could not be substantiated.11 DHR also
mistakenly sent Moore a letter addressed to Lynch recommending that Lynch
complete online courses entitled “Coaching Skills for Supervisors,” “Conflict
Resolution,” and “Managing difficult Employees [sic].”12 The investigation was
reviewed by another DHR employee who also concluded that there had been no
discrimination.13
6. On December 21, 2021, DHSS sent a letter to Moore noting that she
had been continuously absent from work since September 27, 2021, and that she was
on “unapproved and unprotected leave” as of December 18, 2021.14 The letter gave
her four options to avoid dismissal from her position: 1) return to full-time work by
January 4, 2022, with documentation explaining her absence since December 18; 2)
obtain approval for a short-term disability claim; 3) obtain written approval for a
leave of absence without pay; or 4) resign.15
7. Moore then submitted a leave of absence request, which was denied
“for operational reasons.”16 She did not return to work, and on January 5, 2022, was
9
R. at 95.
10
See R. at 96 (“Mrs. Lynch’s tone was raised which was unwelcoming, demeaning as well as
chastising. . . . [I] felt like I was being put down and, didn’t like her tone or manner in which she
was speaking to me.”).
11
R. at 135.
12
R. at 138, 232.
13
R. at 229–31.
14
R. at 205–06.
15
Id.
16
R. at 222. Her request for short-term disability was also denied and is the subject of a separate
3
sent a letter indicating that dismissal from her position was recommended but
advising that she had a right to a pre-termination meeting.17
8. Moore requested a pre-termination meeting, which was held on January
24, 2022.18 There are no details in the record about what was discussed in this
meeting, except that it was concluded that Moore “did not offer any reasons to
rescind the recommended termination.”19 Moore’s employment was then terminated
via letter, effective February 1, 2022.20 Moore filed a timely appeal to the Merit
Employee Relations Board (the “Board”) on February 18, 2022.21
9. A live hearing before the Board took place on July 7, 2022, during
which DHSS presented testimony from two witnesses and Moore testified on her
own behalf.22 At the hearing, Moore testified that she was on approved FMLA leave
from September 26, 2021, until December 18, 2021.23 She testified that she applied
for that leave 30 days after September 26, but did not state when it was approved.24
Kristin Molero (hereinafter “Molero”), Lynch’s supervisor, testified that there was
some confusion about the FMLA leave and that part of the issue was that Moore was
not communicating with her or with Lynch, leaving emails unanswered and
otherwise failing to inform them of the status of her FMLA leave requests.25
10. The Board denied Moore’s appeal in a unanimous decision dated
August 30, 2022, finding that she “failed to appear for work and failed to secure
appeal pending before this Court. See Moore v. State Employee Benefits Committee, No. K22A-
07-001 NEP.
17
R. at 219–20.
18
R. at 225.
19
Id.
20
Id.
21
R. at 7.
22
R. at 2, 226–57.
23
R. at 252.
24
R. at 253.
25
R. at 236.
4
authorized leave for an extended period” and that termination of employment was
an appropriate sanction given DHSS’s operational needs.26 The Board did not
address Moore’s hostile work environment allegations on the merits, noting only in
its findings of fact that the claims had not been substantiated upon investigation.27
Moore timely filed a notice of appeal to this Court on September 29, 2022.28
11. Moore filed a two-page opening brief with this Court on December 15,
2022, requesting “a review and/or hearing of a case that pertains to my wrongful
termination” by DHSS.29 The brief argues, without any citation to authority, that
“DHS [sic] failed to recognize the specific issues (of my personal harassment, the
hostile work environment) as a protected status employee as a disabled U.S. Veteran
to initiate swift, appropriate actions in accordance with federal and state laws,
regulations, and procedures to mitigate, preclude similar incidents [sic].”30 It further
asserts that management failed to follow “protocol and procedures applicable to [the]
Family Medical Leave Act, reasonable accommodation, and DHS Workplace and
Anti-Discrimination Policy, which clearly violations of [sic] the Americans with
Disabilities Act.”31
12. DHSS filed an answering brief on January 17, 2023, arguing that the
Board’s determination was based on sufficient evidence and free from legal error,
and that the Court should not consider the exhibits attached to Moore’s opening
26
R. at 5–6.
27
See R. at 3, 5–6.
28
R. at 261; see 29 Del. C. § 5949(b) (“All appeals to the Superior Court shall be by the filing of
a notice of appeal with the Court within 30 days of the employee being notified of the final action
of the [Merit Employee Relations] Board.”).
29
Opening Br. (D.I. 27) at 1. The document is styled as a letter to the Court and does not follow
the form and content requirements of Superior Court Civil Rule 107.
30
Id.
31
Id. at 1–2.
5
brief.32 Moore filed a reply brief on January 27, 2023.33
II. ANALYSIS
13. At the outset, the Court notes that Moore appears to misunderstand the
nature of this appellate proceeding. She submitted numerous documents to this
Court, some including handwritten annotations, and requests in her opening brief
“another review concerning the facts & circumstances [sic] related to” this case.34
This Court’s role, however, is far more restricted. First, the Court’s review is
“limited to the record that existed at the time of the [Board]’s decision.”35
Accordingly, the Court cannot consider the exhibits Moore submitted outside of the
record, or the arguments alluded to in the handwritten notes on those exhibits.
14. Second, “[i]n an appeal to the Superior Court from a decision of the
Board, the Superior Court’s function is to correct any errors of law as well as
determine whether the record contains substantial evidence to support the Board’s
findings of fact and conclusions of law.”36 Substantial evidence is “such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.”37
Questions of law are subject to de novo review.38 The onus is not on the Court,
however, to identify appealable errors in the record below. As the Delaware
Supreme Court has explained,
32
Answering Br. (D.I. 29). Counsel for the Board did not file an Answering Brief because “a body
acting in a judicial or quasi-judicial capacity has no cognizable interest in seeking to have its
rulings sustained.” R. at 277.
33
Reply Br. (D.I. 30).
34
Opening Br. at 2.
35
Billings v. Merit Employee Relations Bd., 2015 WL 652046, at *8 (Del. Super. Feb. 13, 2015);
see also Super. Ct. Civ. R. 72(g) (“Appeals shall be heard and determined by the Superior Court
from the record of proceedings below, except as may be otherwise expressly provided by statute.”);
In re Spielman, 316 A.2d 226, 227 (Del. Super. 1974) (concluding that appeals from the Merit
Employee Relations Board are on-the-record appeals pursuant to Rule 72(g)).
36
Gibson, 2011 WL 1376278, at *2.
37
Id. (quoting Avallone v. State/Dep’t of Health & Soc. Servs. (DHSS), 14 A.3d 566, 570 (Del.
2011)).
38
Id.6
The appealing party is generally afforded the opportunity to select and
frame the issues it wants to have considered on appeal. A corollary to
that opportunity is a requirement that the appealing party’s opening
brief fully state the grounds for appeal, as well as the arguments and
supporting authorities on each issue or claim of reversible error.39
Specifically, this Court’s rules specify that a party’s brief shall include, among other
things, a statement of the case including a summary of relevant facts, a statement of
the questions involved, and argument.40 While “it has long been recognized that
pro se litigants should be afforded some leniency in presenting their case to the
Court,” it is also true that a pro se litigant’s “brief at the very least must assert an
argument that is capable of review.”41 Thus, while the Court has reviewed the entire
record, it will limit its analysis to issues fairly presented in Moore’s opening brief.
15. The Board decided under Merit Rule 12.1 that there was “just cause”
for Moore’s termination, relying primarily on her extended absence without leave
from her position. Just cause is defined 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.”42 In cases where
the Board has affirmed an employee’s termination, the “discharged employee has
the burden of proving that the termination was improper” on appeal to this Court.43
16. Moore’s briefing fails to address any of the three elements required to
39
Flamer v. State, 953 A.2d 130, 134 (Del. 2008) (internal citations omitted).
40
Super. Ct. Civ. R. 107(e).
41
Billings, 2015 WL 652046, at *7 (quoting In re Estate of Hall, 882 A.2d 761, 2005 WL 2473791,
at *1 (Del. 2005) (TABLE)).
42
Merit Rule 12.1. This rule is codified in the Delaware Administrative Code, 19 Del. Admin.
Code § 3001-13.1, and available online on the Merit Employee Relations Board website. See
Merit Employee Relations Board, State Merit Rules, 2018 Revised Merit Rules - complete at 27
(Feb. 1, 2018), https://merb.delaware.gov/wp-content/uploads/sites/131/2018/03/2018-Revised-
Merit-Rules-complete.pdf. The Court takes judicial notice “of the information found on this
government site because that information can be ‘accurately and readily determined from sources
whose accuracy cannot reasonably be questioned.’” MidFirst Bank v. Mullane, 2022 WL
4460810, at *5 n.35 (Del. Super. Sept. 26, 2022) (quoting D.R.E. 201(b)(2)).
43
Avallone, 14 A.3d at 572.
7
show just cause. However, in the interests of fairness, the Court will consider two
issues related to the cause of her termination that are at least alluded to in Moore’s
opening brief: 1) that the Board gave insufficient consideration to her hostile work
environment allegations and 2) that the Board erred in concluding that she had failed
to secure authorized leave to cover her extended absence.
A. Hostile Work Environment
17. In her brief, Moore argues that she was subjected to a hostile work
environment, an issue on which the Board heard testimony but never addressed on
the merits in its written decision. While not entirely clear, Moore’s position appears
to be that her hostile work environment allegations, if proven, would necessarily
justify her extended absence from the workplace. In other words, the Board should
have considered the hostile work environment claim as a sort of affirmative defense
to the infraction of unauthorized absence from work. However, Moore cites no
authority in support of this argument, and “[t]he failure to cite any authority in
support of a legal argument constitutes a waiver of the issue on appeal.”44
18. Moreover, on its own review, the Court has identified only one case in
which this Court considered a hostile work environment claim on the merits on an
appeal from the Board, Billings v. Merit Employee Relations Board.45 In Billings,
as in this case, the grievant had challenged the termination of her employment and
also alleged that she had been subjected to a hostile work environment. The Board
“permitted testimony related to the hostile work environment claim” and proceeded
to reject it on the merits for failure to state a prima facie claim.46 This Court
affirmed.47 Nothing in Billings, however, indicated that the disposition of the hostile
44
Flamer, 953 A.2d at 134; see also Lemper v. Delaware Bd. of Dentistry & Dental Hygiene, 2017
WL 3278931, at *2 (Del. Super. July 31, 2017) (same).
45
2015 WL 652046 (Del. Super. Feb. 13, 2015).
46
Billings, 2015 WL 652046, at *2, *6.
47
Id. at *10.
8
work environment claim was necessary to the disposition of the just cause
determination (which both the Board and this Court considered separately).
19. Here, unlike in Billings, the Board did not address the hostile work
environment allegations on the merits, noting only in its findings of fact that an
internal investigation had failed to substantiate them.48 That the internal
investigation and review found no hostile work environment or discrimination is
clearly supported by the record.49 The Board accepted this representation and
confined its legal analysis to the precise issue before it, i.e., whether there was just
cause to terminate Moore’s employment as a result of her extended absence.
Ultimately, it was her termination, and not the conclusion of the discrimination
investigation, that was the subject of Moore’s appeal to the Board.50 The Court thus
finds no legal error in this disposition of Moore’s hostile work environment
allegations.51
B. Authorized Leave
20. Moore also vaguely alludes to violations of various statutes and
48
R. at 3.
49
See R. at 135 (“Please be advised that the investigation into your complaint of Hostile Work
Environment has been completed. After reviewing all the information, your allegations could not
be substantiated.”); id. at 231 (“Q: What was the conclusion? A: I was simply able to determine
that there had been no discrimination.”).
50
See R. at 7 (completed merit appeal form for employees dismissed, demoted, or suspended).
51
Even if the Board had reviewed the hostile work environment claim on its merits, the Court
notes that in order to establish “a prima facie case for a hostile work environment claim” an
employee must show that “1) the employee suffered intentional discrimination as a result of her
[protected status]; 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.” Billings, 2015
WL 652046, at *9. Appellant asserts in her brief that she has a protected status as a disabled U.S.
veteran but fails to argue or point to any evidence suggesting that Lynch’s alleged harassment was
intentional discrimination, or that it had anything whatsoever to do with Appellant’s veteran status.
In other words, while Appellant alleges mistreatment and incivility by Lynch, she fails to allege
the necessary link between that mistreatment and her veteran status (or any other protected
characteristic) in order to establish a prima facie claim.
9
policies, including the FMLA, under which her leave may have been authorized. In
her hearing, Moore testified before the Board that over half of her absence, from
September 26, 2021, until December 18, 2021, from work was eventually approved
and authorized as FMLA leave.52 Moreover, Molero’s testimony corroborated that
an FMLA request was approved at some point in time (although it also suggests that
Moore failed to communicate the authorized leave dates to either Lynch or
Molero).53 In its written decision, the Board did not acknowledge any of the
testimony regarding FMLA leave, instead simply describing the period of
unauthorized absence as spanning from September 27, 2021, until February 1,
2022.54
21. However, the record shows that Moore’s FMLA leave expired no later
than December 18, 2021, and that she was directed to return to work on January 4,
2022.55 It is undisputed that she did not return to work on that date and did not have
any approved leave at that time.56 Thus, there is substantial evidence in the record
to support the Board’s conclusion that Moore failed to appear for work and failed to
secure authorized leave, at least for the period from December 18, 2021, until
February 1, 2022.57 Finally, Moore has not argued that she was denied due process
52
R. at 252. The Court notes that it cannot consider the documentation submitted outside of the
record that corroborates those dates. See Exs. To Amended Notice of Appeal (D.I. 17).
53
R. at 236.
54
R. at 3–5.
55
R. at 205–06.
56
R. at 237 (testimony by Molero that Appellant did not return to work as directed on January 4,
2022); R. at 253 (testimony by Appellant that she followed her doctor’s instructions not to report
to work until February 1, 2022, but acknowledging that her request for a leave of absence without
pay for that time period was denied).
57
Cf. DeMarie v. Delaware Dep’t of Transp., 2002 WL 1042088, at *1–2 (Del. Super. May 24,
2002) (finding substantial evidence to support the Board’s conclusion that just cause existed for
an employee’s termination where the employee missed a substantial amount of work, disagreed
with his supervisor about his projected return to work date, and argued that “he was discriminated
against on the basis of non-merit factors when he was terminated rather than laid off or given
extended leave”).
10
or that the penalty, termination of employment, was inappropriate under the
circumstances, and therefore the Court considers those issues waived on appeal.
CONCLUSION
While there are other issues of disputed fact in the proceedings below, the
Court declines to delve deeper into the merits absent more specific argument in
Moore’s briefing. For the foregoing reasons, the decision of the Merit Employee
Relations Board is AFFIRMED.
IT IS SO ORDERED.
NEP:tls
Via File & ServeXpress & U.S. Mail
oc: Prothonotary
cc: Venus Moore, Pro Se – Via U.S. Mail
Gabriela Kejner, Deputy Attorney General – Via File & ServeXpress
Victoria R. Sweeney, Deputy Attorney General – Via File & ServeXpress
11