Kwasnieski v. State of Delaware, Department of Transportation

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
JAMES KWASNIESKI, )
)
Appellant-Below/Appellant, )
)
)
v. ) C.A. No. N23A-06-011 CEB
)
STATE OF DELAWARE, )
DEPARTMENT OF TRANSPORATION, )
)
Employer-Below/Appellee, )
)
and )
)
MERIT EMPLOYEE )
RELATIONS BOARD, )
)
Appellee. )
Submitted: April 12, 2024
Decided: June 25, 2024
ORDER
Appeal from a Decision of the Merit Employee Relations Board,
AFFIRMED.
Lance Geren, Esquire, O’DONOGHUE & O’DONOGHUE, LLP, New Castle,
Delaware. Attorney for the Appellant.
Kenneth S. Feaster, Esquire, George T. Lees, III, Esquire and Victoria R. Sweeney,
Esquire, DEPARTMENT OF JUSTICE, Wilmington, Delaware. Attorneys for the
Appellees.
BUTLER, R.J.
1. At the time of the acts giving rise to this proceeding, Appellant James
Kwasnieski (“Appellant”) was employed by the State of Delaware, working for
DELDOT as an Engineering and Planning Survey Technician III. His particular
work group at DELDOT had the responsibility to audit the quality of “hot mix”
prepared by road contractors who were laying down the mix on Delaware roads.
Apparently, a good part of that job involved going to the contractor’s hot mix
preparation site, testing the quality of the mix, and recording the results before the
mix was brought to the installation site.
2. Apparently this hot mix gets mixed at divergent hours depending on the
need. So the work hours for the job of analyzing the mix could vary. The “official”
hours were 8 a.m. to 4 p.m. But since mixing can occur much earlier in the day, it
is not unusual for the technician’s shifts to vary accordingly.
3. The focus of this appeal is Appellant’s time entries for the period
December 6 to December 18, 2021. That record shows that his
“normal” schedule ran from 8 a.m. to 4 p.m., but that he often reported to the
contractor’s site between 5 a.m. and 8 a.m., and sometimes worked past 4 p.m.1 He
duly recorded his time and, where appropriate, he sought “overtime” pay for the
relevant hours.
1
R. at 22.
1
4. “Overtime Pay,” under the Merit System Rules, is paid at a rate of 1.5
times the employees’ regular rate of pay.2 There is no dispute that Appellant received
overtime pay when requested.
5. There, is, however, another classification of pay under the Merit System
called “Call-Back Pay.” 3 Call-back pay is paid at the overtime rate, but the
“minimum total payment is equivalent to four times their regular straight time hourly
rate.”4 Obviously, “call-back pay” represents a substantial premium over overtime
pay.
6. Appellant and the technicians at DELDOT understood the need for
flexibility in their work hours and had established a system for settling who would
work when. Overtime was apparently plentiful, to the point that supervisors would
have to assign work in order to equitably distribute overtime so that everybody had
their chance to earn extra income. The technicians were advised at the close of each
workday which jobs they should report to the following day.
2
Merit System Rule at 4.13.1. This rule is codified in the Delaware Administrative Code and
available online on the Merit Employee Relations Board’s (“MERB”) website. See 19 Del. Admin.
C. § 3001-5.13.1; State of Delaware Merit Rules (Feb. 1, 2018), https://merb.delaware.gov/wp-
content/uploads/sites/131/2018/03/2018-Revised-Merit-Rules-complete.pdf. The Court will
reference the rules as they appear on the MERB’s website as “Merit System Rule _”.
3
Merit System Rule 4.16.
4
Id. at 4.16.1.
2
7. The plan was not iron-clad, however. The supervisors would not
necessarily have the next days’ work in hand when the shift ended. In such cases,
the technicians were given a hotline to call to get the next day’s work hours and
assignments. None of this was new or unusual and is not the source of the discontent
expressed in this appeal.
8. On the evening of December 14, 2021, Appellant finished work without
a schedule for the next day. As was the common practice, he called the hotline during
the evening and was given his assignment for the 15th, which, not unusually, began
at 6:30 a.m. Appellant went as directed and completed the tasks assigned.
9. What was unusual was that, when Appellant submitted his time record
for December 15, he requested 2.5 hours of “Call-Back Pay.” DELDOT paid him
overtime pay for the 2.5 hours but disagreed that he had been “called back” to work
and therefore denied him “Call-Back Pay.” A grievance ensued, it was heard by the
Merit Employee Relations Board (“MERB”), which upheld the decision by
DELDOT and denied the grievance. This appeal followed.
10. Appellant’s sole claim is that he was “called back” by his supervisor to
come to work the next day before his regular scheduled start time of 8 a.m. and so
therefore he was entitled to “call-back pay.” 5
5
See Appellant’s Opening Br., Trans. ID 71924047 (Feb. 1, 2024).
3
11. The only issue to be resolved is whether being given your work
assignment hours for the next day via a hotline call – a work procedure long in
practice within the work group – constitutes a “call-back” under the Merit System’s
work rules. The MERB concluded it did not. Even Appellant recognizes that
MERB’s interpretation of the rules it administers is entitled to deference and will
only be reversed when it is “clearly wrong.” 6
12. Appellant says his case fits the definition of call-back pay because call-
back pay is defined as “FLSA-covered employees who have left the work site at the
end of their scheduled shift and are called back for overtime service…” 7 Appellant
argues he left work on December 14, called the hotline number that evening and was
told by his supervisor that his shift the following morning would begin at 6:30 a.m.,
not 8 a.m. as scheduled, constituting overtime service. This rather inventive
argument finds some comfort in logic, but little in common sense.
13. And even the logic is suspect. For example, the Merit rule refers to
being “called back for overtime service,” but Appellant’s overtime on December 15
occurred because he worked past 4 p.m. that day, not because he started early. He
6
Id. at 5 (citing Avallone v. State/Dep’t of Health & Soc. Servs, 14 A.3d 566, 570 (Del. 2011);
Ward v. Dep’t. of Elections, 977 A.2d 900, 2009 WL 2244413 (Del. July 27, 2009) (TABLE)).
See also Stanford v. State Merit Empl. Relations Bd., 44 A.3d 923, 2012 WL 1549811, at *3 (Del.
May 1, 2012) (TABLE).
7
Merit System Rule 4.16.1.
4
was not called back to work overtime on December 15. And the term “call-back”
sounds to the lay reader like a call to return in light of some sort of emergency or
unusual circumstance, not the routine scheduling of work hours. Appellant’s
construction eliminates the “back” in “call-back” and would require call-back pay
for any change in “normal” work hours. A change in the start time may be what
overtime is for, it is not what “call-back” is for.
14. Appellant cites no case in which such a tortured reading of the rules
has been upheld, and the Court sees little reason to do so here. The technicians and
DELDOT have developed a workable system to staff DELDOT’s needs, with
overtime available to staff as needed for its mission. MERB, whose special expertise
includes matters of wages and hours, was not “clearly wrong” to hold that merely
setting a flexible, daily work schedule does not implicate the call-back pay
provisions. The Court finds no error in the ruling by MERB and Appellant’s claim
is therefore denied and the decision of the Merit Employee Relations Board is
AFFIRMED.
IT IS SO ORDERED.
/s/ Charles E. Butler
Charles. E Butler, Resident Judge
5