Silva v. Delaware Department of Labor

Opinion

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

) WANDA SILVA, ) C.A. No. N25A-05-004 DJB Appellant, ) ) v. ) ) DELAWARE DEPARTMENT OF ) LABOR, ) Appellee. ) )

Date Submitted: April 29, 2026 Date Decided: July 21, 2026

Memorandum Opinion

Appeal of the Decision of the Merit Employee Relations Board- Denied

Wanda Silva, pro se, Appellant

Stacey Stewart, Esquire, of the Delaware Department of Justice, Attorney for Appellee

BRENNAN, J.

1 I. INTRODUCTION Appellant Wanda Silva (hereinafter “Silva” or “Appellant”) filed a grievance

before the Merit Employee Relations Board (the “Board” or “MERB”) against the

Appellee Delaware Department of Labor (“the DDOL”), claiming that she is

performing the work of another position and should be paid accordingly. That

grievance was dismissed by MERB and this appeal followed. 1 Given that the 0F

MERB’s decision was supported by substantial evidence, and free from any errors

of law or abuse of discretion, Silva’s Appeal is DENIED.

II. FACTUAL BACKGROUND

On November 6, 2022, Silva began her employment with the State of

Delaware Department of Labor, Division of Unemployment Insurance (hereinafter

“DUI”) as a Management Analyst III (hereinafter “MA III”). 2 The MA III position 1F

is responsible for data analysis for operational management programs. Silva’s

duties included “performing statistical analysis and interpretation of data related to

policies and procedures; analyzing and evaluating effectiveness of operations;

studying pertinent legislation, orders, and regulations; and documenting findings

of studies and preparing recommendations of implementation of new systems.” 3 2F

1 Wanda Silva v. Merit Employee Relations Board and Delaware Department of Labor, Case No. N25A-05-004 DJB Docket Item (hereinafter “D.I.”) 1. 2 Case Record from MERB (hereinafter “R.”) at 2, Agency Ex. A. 3 R. at 3-4, Agency Ex. C. 2 In the beginning of 2023, Silva and three other MA IIIs were assigned to perform

the additional role of Information Security Officers (hereinafter “ISO”). The ISO

function is “not a stand-alone merit position but rather a duty added to an already

existing position.” 4 3F

Following Silva’s ISO designation, the DDOL separately established a new

standalone position: Information Security and Compliance Officer (hereinafter

“ISCO”). 5 This position is more in depth than a MA III with ISO responsibilities, 4F

and is responsible for instituting Information Technology security policies across

departmental systems. 6 The responsibilities and duties of an ISCO include: 5F

(1) Develops, implements, and enforces information security policies, standards, best practices and procedures for complex systems and data ... (2) Conducts IT security risk assessments and gap analysis on systems and operational requirements to evaluate effectiveness and identify vulnerabilities and non-compliance. (3) Makes recommendations on corrective action to IT security requirements and system designs to resolve issues; evaluates IT security solutions to confirm they meet department, state and federal IT security requirements for processing confidential and sensitive information. (4) Performs IT security and internal control reviews on sensitive systems and develops unique security tools and techniques . . . (5) Assists department staff on IT security policy and conducts IT security related training. (6) Ensures compliance of department IT security options with external entities .... (7) Supports a 24x7 operational environment.

4 R. at 3, Grievant Ex. 6. 5 R. at 3, Grievant Ex. 6. 6 R. at 3, Agency Ex. D. 3 (8) May complete the Primary Information Security Officer (ISO) or Alternate Information Security Officer (ISO) duties, as outlined by DTI. 7 6F

Silva applied for, but was not given, this position, as she did not have the

requisite qualifications. 8 7F

Silva then filed a grievance with the MERB, arguing she was performing the

duties of an ISCO, but getting paid at the MA III, ISO level. On February 19, 2025,

the Board held a hearing to address Silva’s grievance, which was ultimately

dismissed on April 23, 2025. 9 Silva now appeals that dismissal. 10 8F 9F

III. PROCEDURAL HISTORY

Silva filed her Notice of Appeal on May 27, 2025, 11 and her Opening Brief 10F

on October 24, 2025. 12 The DDOL filed its Answer on November 10, 2025. 13 Silva 11F 12F

filed her Reply Brief on December 9, 2025. 14 On March 11, 2026, the Court held 13F

oral argument on the appeal. 15 During argument, the Court discussed with the 14F

parties the fact that it was unable to verify or locate some of the cases in which Silva

relied upon in her briefing. The Court provided Silva thirty (30) days to supplement

7 R. at 3-4, Agency Ex. D. 8 R. at 4, Hr’g Tr. at 53. 9 R. at 1-7. 10 D.I. 1. 11 Id. 12 D.I. 28. 13 D.I. 52. 14 D.I. 54. 15 D.I. 61. 4 her briefing with copies of those cases, or “seek withdrawal of her reliance on those

cases.” 16 Additionally, the Court provided Silva the opportunity to cite to record 15F

evidence of the documentation upon which she relied in argument and referenced

throughout the hearing. 17 Silva filed her supplement on April 9, 2026. 18 On April 6F 17F

29, 2026, the DDOL responded. 19 This matter is now ripe for decision. 18F

IV. STANDARD OF REVIEW On appeal from an administrative board's final order, review is restricted to

whether the Board's decision is “free from legal error and supported by substantial

evidence.” 20 Substantial evidence is “such relevant evidence as a reasonable mind 19F

might accept as adequate to support a conclusion.” 21 In reviewing the record to 20F

make such a finding, the Court must consider the record in the light most favorable

to the prevailing party below. 22 On appeal, this Court “does not sit as trier of fact 21F

16 D.I. 62 at 1. 17 Id. at 1-2. 18 D.I. 63. 19 D.I. 64. 20 Volk v. Unemployment Ins. Appeal Bd., 2016 WL 241379, at *1 (Del. Super. Jan. 13, 2016) (citing 29 Del. C. § 10142(d); Wilson v. Breakers Hotel & Suites, 2010 WL 2562214 (Del. Super. June 24, 2010)). 21 Munyan v. DaimlerChrysler Corp., 909 A.2d 133, 136 (Del. 2006). 22 General Motors Corp. v. Guy, Del. Super., C.A. No. 90A-JL-5, Gebelein, J. (Aug. 16, 1991). 5 with authority to weigh the evidence, determine questions of credibility, and make

its own factual findings and conclusions.” 23 22F

Absent any errors of law, a decision of the Board supported by substantial

evidence will be upheld unless the Board abused its discretion. 24 Abuse of discretion 23F

exists only when the conclusions exceed all bounds of reason in view of the

circumstances. 25 The Court cannot afford weight to the evidence presented below, 24F

nor can it make credibility or actual findings; the Court’s role is limited to a

determination of whether the evidence presented below was legally sufficient to

support the agency's findings. 26 The Court reviews de novo any questions of law 25F

presented. 27 26F

V. ANALYSIS As an initial matter, Silva brings forth new evidence and claims not originally

asserted during the administrative process below. Specifically, Silva’s appeal raises

claims of “retaliation and unequal treatment in violation of Merit Rule 2.1” 28 and 27F

“violations of UIPL 14-17 and IRS Publication 1075” that were not presented to the

23 Glanden v. Land Prep, Inc., 918 A.2d 1098, 1100 (Del. 2007) (quoting Johnson v. Chrysler Corp., 213 A.2d 64, 66 (Del. 1965)). 24 Hoffecker v. Lexus of Wilmington, 2012 WL 341714, at *1 (Del. Feb 1, 2012). 25 Person-Gaines v. Pepco Holdings, Inc., 981 A.2d 1159, 1161 (Del. 2009). 26 Torres v. MOT Charter Sch., 2022 WL 1584508, at *1 (Del. Super. May 19, 2022) (internal citations omitted). 27 Person-Gaines, 981 A.2d at 1161 (internal citations omitted). 28 D.I. 28 at 5. 6 BOARD. 29 The DDOL correctly argues that Silva’s reliance on these Board’s rules 28F

and violations are unrelated to her grievance, based on federal guidelines, laws or

policies, and may not be for the first time on appeal. Even had her new claims been

raised below, they fall outside of the Board’s jurisdiction and therefore could not

have been considered by the Board in the first instance. 30 29F

This Court’s review is “limited to the record that existed at the time of the

[Board]’s decision, [and] it cannot now consider new evidence and may only review

evidence from the record below.” 31 The Boards’s decision was based on Silva’s 30F

Merit Rule 3.2 grievance. New arguments that were not raised below to the Board

cannot now be considered.

A. SUBSTANTIAL EVIDENCE SUPPORTS THE BOARD’S DECISION

As part of her appeal of the Board’s decision, Silva argues the MERB

misapplied Merit Rule 3.2. Specifically, she contends under Rule 3.2, “when an

employee performs the duties of a higher classification for more than thirty (30)

days, the Rules for promotion or temporary promotion apply,” and she should have

been compensated for the work performed at the higher level. 32 Silva maintains she 31F

has “continuously performed higher-level ISO duties critical to [D]DOL’s data

29 Id. at 7. 30 D.I. 52 at 9. 31 Moore, 2023 WL 2808085, at *3. 32 D.I. 28 at 1. 7 security and compliance obligations, including managing incident response,

coordinating audits, and ensuring adherence to federal standards.” 33 32F

In support, Silva cites to the fact that she was not given the newly created

ISCO position. When Silva was not given the ISCO position, the DDOL cited her

lack of the requisite “three years of ISO experience” as to why she was not qualified.

In her grievance to the Board, Silva acknowledged she did not have that experience,

but argued that criteria was impossible to meet, as the ISCO was a newly created

position. Silva’s argument is made under the view that this requirement is position

specific, and because this DDOL position was just created, no one could meet that

and she was unnecessarily passed over. 34 On appeal, Silva argues the Board did not 3F

consider whether she was qualified for this promotion, as it deemed this argument

irrelevant to the issue as to whether she had been “required to work in a higher class

in violation of Rule 3.2.” 35 The Board’s role was to address Silva’s grievance 34F

according to Rule 3.2, which required a comparison of the job duties. The Board

did not commit an abuse of discretion, error, or misapplication of law when it did

not consider this evidence.

The DDOL asserts Silva failed to satisfy the burden imposed by Merit Rule

3.2, and, accordingly, failed to establish that the daily work that she was performing

33 Id. 34 Id. at 2. 35 R. at 6. 8 was more aligned with a higher paid position. 36 Further, the DDOL argues the 35F

Board’s decision is supported by the substantial record of “documentary and

testimonial evidence,” as well as prior decisions where the Board applied a similar

standard of review to determine whether an employee’s day-to-day tasks were more

aligned with a higher paygrade position. 37 The DDOL is correct. 36F

Merit Rule 3.2 States:

Employees may be required to perform any of the duties described in the class specification, any other duties of a similar kind and difficulty, and any duties of similar or lower classes. Employees may be required to serve in a higher position; however, if such service continues beyond 30 calendar days, the Rules for promotion or temporary promotion shall apply, and they shall be compensated appropriately from the first day of service in the higher position. 38 37F

Under Rule 3.2, an employee may be required to perform similar duties as those

required for their existing job class specification. However, only when they perform

duties at a higher position will they be compensated accordingly.

In Jenkins v. State of Delaware, the Court analyzed an appeal stemming from

an employee’s grievance alleging that he was performing work at a higher

classification level and should therefore be compensated accordingly. 39 On appeal, 8F

the Superior Court found substantial evidence existed to support the Board’s finding

36 D.I. 52 at 7-8. 37 D.I. 52 at 8, n.3. 38 Merit Employee Relations Board R. 3.2. 39 Jenkins v. State of Delaware, Dep't of Health & Soc. Servs., 2010 WL 663966, at *2-3 (Del. Super. Jan. 29, 2010). 9 Jenkins failed to provide sufficient evidence to prove he was performing the majority

of his daily duties at the higher-level work position. 40 Consistent with Jenkins, the 39F

burden is on Silva to establish she was performing the level of work of an ISCO.

Using the standard set forth in its previous decisions, the MERB denied

Silva’s grievance. 41 In Bertin v. DHSS/DDDS, the MERB determined that “[a]n 40F

increase in the volume of work assigned to an employee by itself does not constitute

working out of class[;]” instead, an employee must establish that they have

performed “a substantial portion of the duties of a higher classification for a period

greater than 30 days.” 42 In Bertin, the Board granted the employee’s grievance as it 4 F

found that Berlin was performing duties “outside of her classification” as a Nursing

Supervisor as well as those duties reserved for the Nursing Director classification. 43 42F

The Board’s decision was largely based on a finding the duties Berlin was tasked

with exceeded the scope of those responsibilities and were more in line with the

higher classification. 44 3F

40 Id. 41 Sharon Bertin v. DHSS/DDDS, MERB Docket No. 20-10-789 at 4 (Sept. 23, 2021); Brabson v. Del. Dept. of Servs. for Children, Youth and Their Families, MERB Docket No. 21-07-811 at 5 (Dec. 1, 2021); Jenkins v. DHSS, MERB Docket No. 07-01-380 at 5 (May 15, 2008). 42 MERB Docket No. 20-10-789 at 4 (Sept. 23, 2021). 43 Id. at 2. 44 Id. at 3-4. 10 In Brabson v. DSCYF/DYRS, the Board found that compensation at a higher

paygrade classification was warranted because the employee’s current

responsibilities as a Regional Manager had “expanded beyond the duties set forth”

in the Agency’s classification and were primarily functioning and performing “most

if not all of the essential functions” of the higher classification. 45 That is not the 44F

case here.

Silva did not establish she was exclusively performing ISCO duties, which

would implicate Merit Rule 3.2 and necessitate compensation at a higher pay grade.

The Board largely based its decision on Silva’s inability to meet her burden. The

primary functions of an ISCO include effectuating agency wide duties and

“developing IT policies and standards,” duties which Silva was not responsible for

or fulfilling. 46 Silva’s ISO designation alone is not sufficient to show she was doing 45F

the work of another position. The ISO designation simply expanded Silva’s roles

and responsibilities as a Management Analysist. As a designated ISO, Silva

conducts risk assessments and audits, as well as investigations concerning violations

by DUI employees. 47 Silva’s larger workload with the ISO designation surely added 46F

45 MERB Docket No. 21-07-811 at 3-4 (Dec. 1, 2021). 46 R. at 5, Agency Ex. D. 47 D.I. 28 at 7. 11 on to her typical responsibilities, 48 but that does not necessarily mandate that her 4 F

new responsibilities fall in line with the ISCO position.

The Board was presented with testimony from DDOL Human Resources

Director Tristan Press (hereinafter “Press”), Deputy Director of DUI, James Billips

(hereinafter “Billips”), DDOL Information and Security Officer Eric Heintz

(hereinafter “Heintz”) – Silva’s witness – and Silva. 49 This testimony established 48F

that while the ISCO position requires performing many of the same functions and

duties as an ISO, it is a distinct position which imposes additional, more specialized

responsibilities than an ISO designation. The ISO designation serves as the point of

contact for security issues within its assigned organization or department and is

primarily focused on implementing and monitoring security controls to ensure

compliance, while the ISCO position is responsible for developing, implementing,

and enforcing IT security policies, systems, and standards to ensure the systems

comply with all applicable mandates. Additionally, the ISCO position is responsible

for developing and updating IT security policies and procedures as well as IT

security plans, supporting a 24/7 operational environment across one or more state

agencies, and engaging outside of normal working hours when needed. 50 49F

48 Id. 49 R. at 1-7. 50 Information Security and Compliance Officer “ISCO” Job Description, R. at 117- 119. 12 The Board had substantial evidence to conclude that the ISO duties represent

only a portion of the broader responsibilities of an ISCO. Heintz explained that in

her current position, Silva was “not wholly” performing the “duties enumerated in

the Information Security and Compliance Officer Job Description.” 51 Further, 50F

Billups testified that though Silva, as a MA III, ISO designation, performs some

ISCO duties, it is not “what she does all day long.” 52 Billups’s testimony supported 51F

the conclusion that the duties of an ISCO are different than those of a MA III, even

with the ISO designation. 53 52F

While Silva requests the Court reexamine whether the Board correctly

concluded that Rule 3.2 was not violated, that is not the Court’s role on appeal. On

appeal, Superior Court “does not stand as the trier of fact ... and, therefore, it cannot

substitute its own opinion for that of the [MERB's] if there is sufficient evidence to

support the [MERB's] decision.” 54 Accordingly, having found substantial evidence 53F

supports the Board’s decision, it will be upheld.

51 R. at 6, Hr’g Tr. at 41. 52 R. at 6, Hr’g Tr. at 92. 53 Id. at 95-96. 54 Id. (citing Lopicko v. Del. Dep't of Servs. For Children, 2003 WL 21976409, at *3 (Del. Super. Aug. 15, 2003). 13 B. THE MERB NEITHER ERRED AS A MATTER OF LAW, NOR ABUSED ITS DISCRETION WHEN IT DENIED SILVA’S CONTINUANCE REQUEST

Silva’s appeal additionally argues the Board committed an error of law and

abused its discretion when it denied her third continuance request of the hearing

below. In advancing her claim that the Board erred as a matter of law, she asserts

the MERB “ignored key testimony, refused to hear retaliation evidence, and denied

a continuance despite a valid subpoena for the Chief Security Officer.” 55 In 54F

response, the DDOL contends that the Board acted within its discretion to conduct

hearings consistent with the Administrative Procedures Act, Chapter 101 of Title 29,

and exercised reasonable judgment considering the circumstances when it denied

this continuance request. 56 Prior to the February 19, 2025, hearing, Silva had twice 55F

requested continuances, both of which were granted by the Board. 57 Silva had 56F

identified two intended witnesses at the pre-hearing conference held by the Board:

Division of Technology and Information Chief Security Officer Solomon Adote

(hereinafter “Adote”) and Heintz. She was permitted by the Board to call these

witnesses over the DDOL’s objcetion. 58 At the February 19, 2025, hearing, Heintz 57F

appeared; Adote did not.

55 D.I. 28 at 11. 56 D.I. 52 at 11. 57 Id. 58 R. at 26, 171-172. 14 The DDOL maintains that the proffered testimony of Adote was of no

consequence to the outcome of Silva’s grievance, as his proffered testimony was

cumulative testimony to Heintz’s, therefore his absence was an insufficient ground

for a continuance. 59 Regardless, pursuant to 29 Del. C. § 10125(b)(3), the MERB 58F

has inherent authority “to [e]xclude plainly irrelevant, immaterial,

insubstantial, cumulative and privileged evidence.” 60 59F In proceeding with the

hearing despite Adote’s absence, the Board reserved judgment to determine whether

Adote’s testimony would have been critical to the decision at hand. 61 Ultimately, 60F

the Board proceeded with the full hearing after its determination that Adote was not

critical. In doing so, the Board exercised its discretion afforded by Section

10125(b)(3) and was not an abuse of discretion. The record supports this testimony

would have been cumulative and nothing has been presented to suggest otherwise

the Board erred in its determination.

59 Id. at 11-12. 60 Billings v. Merit Emp. Rels. Bd., 2015 WL 652046, at *10 (Del. Super. Feb. 13, 2015) (citing 29 Del. C. § 10125(b)(3)). 61 R. at 36. 15 VI. CONCLUSION

Therefore, the MERB’s decision to deny Silva’s grievance is supported by

sufficient evidence. The MERB neither abused its discretion, nor erred as a matter

of law in its findings or rulings. Accordingly, the decision of the MERB is

AFFIRMED and Silva’s appeal is DENIED.

IT IS SO ORDERED.

_____________________________ Danielle J. Brennan, Judge