Kwasnieski v. State of Delaware, Department of Transportation

• Court: Superior Court of Delaware
• Decided: June 25, 2024
• Docket: N23A-06-011 CEB
• Status: Published

Opinion

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