Finney v. Delaware Department of Transportation

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

DONALD FINNEY, )
)
Appellant, )
)
v. ) C.A. No. N20A-08-001 JRJ
)
DELAWARE DEPARTMENT OF )
TRANSPORTATION, and MERIT )
EMPLOYEE RELATIONS )
BOARD, )
)
Appellees. )
)

MEMORANDUM OPINION

Submitted: December 3, 2020
Decided: February 1, 2021

Upon Donald Finney’s Appeal from Decision and Order of the Merit Employee
Relations Board: AFFIRMED IN PART, REVERSED IN PART, AND
REMANDED IN PART.

Anthony N. Delcollo, Esquire, Offit Kurman, P.A., 222 Delaware Avenue, Suite
1105, Wilmington, Delaware 19801, Attorney for Appellant.

Allison J. McCowan, Esquire, Department of Justice, 820 North French Street, 6th
Floor, Wilmington, Delaware 19801, Attorney for Appellee Delaware Department
of Transportation.

Jurden, P.J.
 I. INTRODUCTION

Appellee Delaware Department of Transportation (“DelDOT”) decided not to

award a job promotion to Appellant Donald Finney. Finney believed that this

decision was the product of discrimination, so he filed a grievance asserting that

DelDOT had discriminated against him on the basis of his race, his color, and his

having filed a prior grievance against DelDOT. Finney took his grievance through

the three-step grievance process and then appealed to the Merit Employee Relations

Board (“MERB”). The MERB denied Finney’s grievance on the merits.

Finney now appeals to this Court, arguing that the MERB made certain

procedural errors en route to its decision. First, Finney argues that the MERB erred

by denying his motion to amend his MERB appeal. Second, Finney argues that the

MERB erred by preventing his counsel from eliciting witness testimony in two

instances during the merits hearing. For the reasons explained below, the MERB’s

Decision and Order is AFFIRMED IN PART, REVERSED IN PART, AND

REMANDED IN PART.

II. BACKGROUND

A. Factual Background1

1
Unless otherwise noted, the Court draws the facts in this section from the MERB’s July 22, 2020
Decision and Order. Citations formatted as “Rec. at ___” refer to pages of the Record of the
MERB Docket No. 19-11-741 (Sept. 15, 2020) (Trans. ID. 65998757).
2
 On January 26, 2019, DelDOT posted a vacancy for an Engineer Program

Manager II position.2 Donald Finney and John Garcia were the two qualified

candidates.3 A hiring panel comprised of LaTonya Gilliam (the hiring manager),

Brian Urbanek, and Alastair Probert then convened.4 On March 11, 2019, the panel

interviewed Finney and Garcia separately.5 Candidates were permitted to bring

supplemental documents to their interviews.6 Finney brought his 2017 performance

review.7 That performance review was completed by Rich Fain, who had been

Finney’s immediate supervisor throughout 2017.8 On the 2017 performance review,

Fain rated Finney’s overall performance as “Exceeds Expectations.”9 Garcia chose

not to bring any documents to his interview.10 At their respective interviews, the

candidates were asked the same 18 questions, and the hiring panel took notes on the

candidates’ responses.11

After the interviews, the hiring panel was divided over whether Finney or

Garcia was the better candidate.12 Both Gillam and Urbanek favored Garcia, but

2
Rec. at 2 (Trans. ID. 65998757).
3
Id.
4
Id.
5
See id.
6
Id.
7
Id. at 2–3 (footnote omitted).
8
Id. at 3.
9
Id.; see also id. at 165–67.
10
Id. at 3.
11
Id. (footnote omitted).
12
Id.
3
Probert could not choose between the candidates.13 The hiring panel needed a

unanimous decision to select a candidate.14 So, attempting to achieve unanimity, the

hiring panel had Gilliam inquire into Finney’s more recent job performance.15

Before discussing Gilliam’s inquiry, the Court will provide context by

discussing the reference lists that the candidates submitted with their applications.16

Finney provided the hiring panel with three references.17 One of these references

was Fain, who, as discussed above, was Finney’s immediate supervisor throughout

2017 and gave Finney a favorable 2017 performance review.18 Finney also listed

Brian Schilling as a reference.19 Schilling took over as Finney’s immediate

supervisor after Fain left DelDOT at the end of 2017.20 Finney had competed with

Schilling for this position, but DelDOT selected Schilling instead.21 Finney grieved

DelDOT’s decision, but the MERB ultimately dismissed his appeal in late 2018.22

13
Id. In Finney’s view, Probert favored Finney and was not torn between the two candidates—
contrary to the MERB’s finding. Opening Brief of Appellant Donald Finney (“Opening Brief”),
at 1 (Trans. ID. 66061521). The MERB’s finding on this point is supported by substantial
evidence. For example, Gilliam testified on cross-examination that Probert felt that the MERB
“needed to look more into [Finney’s] Performance Evaluation because he exceeds expectations.”
Id. at 313. The MERB could construe this testimony as indicating Probert’s desire to conduct
further investigations before making a decision.
14
Id. at 3.
15
Id.
16
See id. (footnote omitted).
17
Id.
18
Id.
19
Id.
20
Id.
21
Id.
22
Id. (citing Finney v. DelDOT, MERB Docket No. 18-08-696 (Nov. 2, 2018)).
4
When Schilling completed Finney’s 2018 performance review, he rated Finney’s

overall performance as “Meets Expectations.”23 Given this history, Finney listed

Schilling as a reference only because he had to; candidates were required to list their

immediate supervisors as references.24

Like Finney, Garcia submitted three references.25 One of those references was

Schilling, who was Garcia’s immediate supervisor as well as Finney’s.26 The other

relevant reference whom Garcia listed was Kevin Canning.27 At the time Schilling

was promoted over Finney, Canning was the hiring manager; for that reason,

Canning was the primary target of Finney’s prior grievance.28

Significantly, Gilliam contacted only Schilling and Canning when she

conducted her inquiry into Finney’s more recent job performance.29 In each

conversation, Gilliam merely asked Schilling and Canning a number of questions

from the Department of Human Resources Employment Reference Check

Questionnaire.30 Although Gilliam’s purpose was to find out about Finney, Gilliam

decided to ask about Garcia as well because he had listed both Schilling and Canning

23
Id. at 168–70.
24
Id. at 3.
25
Id. at 4.
26
Id. at 325.
27
Id. at 4.
28
Id. at 361.
29
Id. at 4.
30
Id. (footnote omitted).
5
as references.31 In response to Gilliam’s questions, Schilling and Canning each gave

Garcia a higher rating than Finney.32 Gilliam presented those ratings to the hiring

panel, and the hiring panel unanimously chose Garcia over Finney for the Engineer

Program Manager II position.33

B. Procedural History

Finney filed a grievance contesting DelDOT’s decision not to promote him.34

The grievance charged DelDOT with having violated Merit Rules 18.5 and 2.1.35

Finney alleged that DelDOT had violated two of Merit Rule 18.5’s subparagraphs

by “discriminating against him because of his race, color[,] and in retaliation for

having filed a previous grievance over a promotion; and by grossly abusing its

discretion in requesting references from Canning, who was not on Finney’s reference

list, but not contacting Fain, who was on Finney’s list.”36 Finney alleged that

31
Id. (footnote omitted).
32
Id.
33
Id.
34
Id. at 110.
35
Id. at 4–5. Merit Rule 18.5 provides:
Grievances about promotions are permitted only where it is asserted that (1) the
person who has been promoted does not meet the job requirements; (2) there has
been a violation of Merit Rule 2.1 or any of the procedural requirements in the
Merit Rules; or (3) there has been a gross abuse of discretion in the promotion.
Merit Rule 2.1 provides:
Discrimination in any human resource action covered by these rules or Merit
system law because of race, color, national origin, sex, religion, age, disability,
sexual orientation, gender identity, genetic information or other non-merit factors
is prohibited.
36
Rec. at 5 (Trans. ID. 65998757).
6
DelDOT violated Merit Rule 2.1 by discriminating against him on the basis of his

race and color and by retaliating against him for having filed a prior grievance.37

Finney advanced his grievance through the three-step process.38 Step three of

that process was a hearing with the Secretary of the Department of Human Resources

(the “Step III hearing”), which Finney attended on August 1, 2019.39 On November

1, 2019, Finney received an unfavorable post-hearing decision, so, on November 20,

2019, he appealed to the MERB.40 The MERB scheduled a merits hearing for March

5, 2020.41

On February 6, 2020, however, Finney moved to amend his MERB appeal,

seeking to add claims that DelDOT violated additional Merit Rules.42 Finney sought

to add a claim that DelDOT violated Merit Rule 7.1 because of a procedurally flawed

reference check; DelDOT skipped over Fain and instead consulted Canning, who

“was clearly biased against and/or had a clear basis to be biased against” Finney.43

Finney also sought to add a claim that DelDOT violated Merit Rule 18.1 because,

under the circumstances, its decision to consult Canning instead of Fain “amount[ed]

to retaliation for [Finney’s] decision to avail himself of his merit rights to contest the

37
See id. at 5–6.
38
Id. at 110; see also Merit Rules 18.6–18.8 (setting out the three-step grievance procedure).
39
Rec. at 112 (Trans. ID. 65998757).
40
See id. at 110; see also Merit Rule 18.9 (allowing a grievant to appeal to the MERB).
41
Rec. at 110 (Trans. ID. 65998757).
42
Id. at 16–19.
43
Id. at 16.
7
prior and current promotional denial.”44 On March 5, 2020, the MERB held a

hearing on Finney’s motion to amend.45 On March 20, 2020, the MERB issued a

post-hearing Decision and Order unanimously denying Finney’s motion.46

In its decision, the MERB noted that it had applied Superior Court Civil Rule

15 in the past and assumed for the sake of argument that it could do so again.47

Applying Rule 15, the MERB denied Finney’s motion to amend because, in its view,

Finney had delayed in filing the motion and provided no good cause for the delay.48

Finney conceded that he had discovered the facts supporting his additional claims at

the Step III hearing on August 1, 2019.49 Yet Finney chose not to include those

claims in his November 20, 2019 MERB appeal.50 And he did not move to amend

his MERB appeal until February 6, 2020.51 So even though the MERB found that

Finney’s desired amendment would hardly have prejudiced DelDOT, it still found

that the equities weighed against Finney and, for that reason, denied his motion.52

Finney challenges this decision in the instant appeal.53

44
Id. at 18.
45
Id. at 70–108.
46
Id. at 109–13.
47
See id. at 111–12.
48
Id. at 112.
49
Id.
50
Id.
51
Id.
52
Id.
53
Opening Brief, at 8–9 (Trans. ID. 66061521); Reply Brief of Appellant Donald Finney (“Reply
Brief”), at 6–9 (Trans. ID. 66157060).
8
 On July 2, 2020, the MERB held the merits hearing and, during that hearing,

made two evidentiary rulings that Finney also challenges in the instant appeal.54 The

first is the MERB’s decision to prevent Finney’s counsel from questioning Canning

about his involvement in Finney’s prior grievance.55 The second is the MERB’s

decision to prevent Finney’s counsel from eliciting testimony from Finney that was

intended to impeach Gilliam’s testimony.56 On July 22, 2020, the MERB issued its

post-hearing Decision and Order unanimously denying Finney’s grievance.57 On

August 21, 2020, Finney appealed to this Court.58

III. STANDARD OF REVIEW

When the Court reviews an MERB decision, it may not weigh evidence,

determine questions of credibility, or make its own factual findings.59 Rather, the

Court must merely determine whether the decision is supported by substantial

54
Rec. at 273–428 (Trans. ID. 65998757); Opening Brief, at 5–6 (Trans. ID. 66061521); Reply
Brief, at 1–6 (Trans. ID. 66157060).
55
Reply Brief, at 1–4 (Trans. ID. 66157060); see Opening Brief, at 5–6 (Trans. ID. 66061521).
56
Opening Brief, at 5–6 (Trans. ID. 66061521); Reply Brief, at 4–6 (Trans. ID. 66157060).
57
Rec. at 1–9 (Trans. ID. 65998757).
58
Notice of Appeal (Trans. ID 65868649). On October 28, 2020, Finney filed his Opening Brief.
Opening Brief (Trans. ID. 66061521). On November 17, 2020, DelDOT filed its Answering Brief.
Answering Brief of Appellee Delaware Department of Transportation (“Answering Brief”) (Trans.
ID. 66120015). Finally, on December 3, 2020, Finney filed his Reply Brief. Reply Brief (Trans.
ID. 66157060).
59
Dep’t of Transp. v. Pearson, 2020 WL 2520632, at *3 (Del. Super. Ct. May 15, 2020) (citing
Ward v. Dep’t of Elections, 2009 WL 2244413, at *1 (Del. 2009)).
9
evidence and free of legal error.60 The Court reviews questions of law de novo.61

Absent an error of law, the Court reviews for abuse of discretion.62

In addition, the Court recognizes that “[a]ll evidentiary rulings are within the

sound discretion of the administrative tribunal and will not be reversed absent a clear

abuse of discretion.”63 An abuse of discretion occurs when a decision “exceeds the

bounds of reason given the circumstances” or the “rules of law or practice have been

ignored so as to produce injustice.”64 If the Court finds that an evidentiary ruling

amounts to a clear abuse of discretion, then the Court must “determine whether the

mistake constituted significant prejudice so as to have denied the appellant a fair

hearing.”65

IV. DISCUSSION

60
Id. (citations omitted) (citing Avallone v. Dep’t of Health & Soc. Servs., 14 A.3d 566, 570 (Del.
2011)).
61
Id. (citing PAL of Wilmington v. Graham, 2008 WL 2582986, at *3 (Del. Super. Ct. June 18,
2008)).
62
Brown v. Parker’s Express, Inc., 2016 WL 6156183, at *1 (Del. Oct. 21, 2016) (citing Potter v.
State, 2013 WL 6035723 (Del. Nov. 13, 2013)).
63
Baynard v. Kent County Motors, Inc., 1988 WL 101220, at *2 (Del. Sept. 7, 1988); cf. Harper
v. State, 970 A.2d 199, 201 (Del. 2009) (quoting Kiser v. State, 769 A.2d 736, 739 (Del. 2001))
(“Because we are reviewing an evidentiary ruling for abuse of discretion, Harper must establish a
‘clear abuse of discretion’ to be entitled to a reversal.”).
64
Johnson v. First State Staffing Sols., 2020 WL 591776, at *3 (quoting Peregoy v. Del. Hospice,
2011 WL 3812246, at *1 (Del. Super. Ct. Aug. 12, 2011)).
65
Warren v. Amstead Indus., 2020 WL 4582504, at *3 (Del. Super. Ct. Aug. 10, 2020) (citing
Strauss v. Biggs, 525 A.2d 992, 997 (Del. 1987)); see also Hellstern v. Culinary Servs. Grp., 2019
WL 460309, at *10 (Del. Super. Ct. Jan. 31, 2019) (quoting Harper v. State, 970 A.2d 199, 201
(Del. 2009)) (“If the Court determines that the Board abused its discretion, then the Court must
determine ‘whether the error rises to the level of significant prejudice which would act to deny the
[appellant] a fair trial.’”).
10
 A. The MERB Committed Legal Error by Denying Finney’s Motion
to Amend His MERB Appeal

To begin, the Court notes that it need only determine whether the MERB

committed legal error in denying Finney’s motion to amend his MERB appeal. The

parties argue about whether Finney was prejudiced by the MERB’s decision, but that

issue is irrelevant to the applicable legal standard: Superior Court Civil Rule 15.66

Turning to the parties’ arguments, Finney argues that the MERB should have

granted his motion pursuant to Superior Court Civil Rule 15.67 It should have done

so, Finney contends, because the record shows that the proposed amendment—

adding violations of Merit Rules 7.1 and 18.1—would have caused little prejudice

to DelDOT.68 Finney also questions the MERB’s conclusion that he unduly delayed,

asserting that the MERB did not establish a deadline by which he had to file his

motion.69 In response, DelDOT argues that the MERB found that Finney’s

amendment would prejudice DelDOT.70 DelDOT also argues that the MERB

properly balanced that prejudice against Finney’s delay in filing the motion.71

66
Finney argues that the MERB’s denial of his motion prejudiced him because it prevented him
from presenting his complete case. Opening Brief, at 8–9 (Trans. ID. 66061521). In response,
DelDOT contends that Finney was not prejudiced by the MERB’s decision to deny his motion.
Answering Brief, at 12 (citations omitted) (Trans. ID. 66120015). This is because, in DelDOT’s
view, Finney had an opportunity to present his complete case—including the two Merit Rule
violations that he wished to add—at the merits hearing. Id.
67
Reply Brief, at 6–9 (Trans. ID. 66157060).
68
Id. at 8.
69
Id. at 8–9.
70
Answering Brief, at 11–12 (Trans. ID. 66120015).
71
Id. at 12.
11
 The Court finds that the MERB should have granted Finney’s motion to

amend pursuant to Superior Court Civil Rule 15.72 Rule 15(a) provides, in relevant

part:

A party may amend the party’s pleading once as a matter of course at
any time before a responsive pleading is served or, if the pleading is
one to which no responsive pleading is permitted and the action has not
been placed upon the trial calendar, the party may so amend it at any
time within 20 days after it is served. Otherwise, a party may amend the
party’s pleading only by leave of court or by written consent of the
adverse party; and leave shall be freely given when justice so requires.73

Analogizing to Finney’s case, Finney was not entitled to amend his MERB appeal

as a matter of course because DelDOT had submitted “a responsive pleading” in the

form of pre-hearing briefing.74 So Finney could have amended his appeal only if the

MERB granted him leave, which the MERB had to do if “justice so require[d].”75

A trial court—and, here, the MERB—has discretion to determine whether

justice so requires.76 But “in the absence of prejudice to another party, the [MERB]

is required to exercise its discretion in favor of granting leave to amend.”77 Further,

a party’s “delay alone is not a sufficient basis to deny amendment of the pleadings,

72
Del. Super. Ct. Civ. R. 15.
73
Del. Super. Ct. Civ. R. 15(a).
74
Id.; Rec. at 110 (Trans. ID. 65998757).
75
Del. Super. Ct. Civ. R. 15(a).
76
See Abdi v. NVR, Inc., 2008 WL 787564, at *1 (Del. Mar. 25, 2008) (brackets and internal
quotation marks omitted) (quoting Mullen v. Alarmguard of Delmarva, Inc., 625 A.2d 258, 263
(Del. 1993)).
77
Id.
12
. . . although inexcusable delay and repeated attempts at amendment may justify

denial.”78

Here, the MERB denied Finney’s motion to amend based on delay alone.79

But the moving party’s delay, without more, does not justify denying the motion;

there must also be prejudice to the non-moving party.80 Because the MERB

conceded that “any prejudice to [DelDOT] may be minimal,” it committed reversible

legal error by failing to grant Finney leave to amend his MERB appeal pursuant to

Superior Court Civil Rule 15(a).81 And because it denied Finney’s motion, the

MERB did not conduct a Rule 15(c) analysis to determine whether Finney’s

amendment should relate back to the date on which Finney filed his original MERB

appeal. Accordingly, the MERB should conduct that analysis in the first instance on

remand.

B. The MERB’s Exclusion of Testimony

78
Mullen v. Alarmguard of Delmarva, Inc., 625 A.2d 258, 263 (Del. 1993) (brackets and citations
omitted).
79
Rec. at 112 (Trans. ID. 65998757).
80
See, e.g., First State Orthopaedics, P.A. v. Liberty Mut. Ins. Co., 2020 WL 6875219, at *6 (Del.
Super. Ct. Nov. 20, 2020) (citation omitted) (“Defendants have not shown how this four[-]month
delay has prejudiced the Insurers such that the Court must deem Plaintiff’s amendment
untimely.”); Martínez v. E.I. Dupont De Nemours & Co., 2012 WL 4479164, at *2 (Del. Super.
Ct. Sept. 21, 2012) (“Delay alone does not end this inquiry. The Court must also consider whether
the delay would cause undue prejudice.”). Delay plus an improper motive may also justify denial
of a motion to amend, but no improper motive has been alleged here. MRPC Christiana LLC v.
Crown Bank, 2016 WL 4059194, at *1 (Del. Super. Ct. July 19, 2016) (quoting Mullen v.
Alarmguard of Delmarva, Inc., 625 A.2d 258, 263 (Del. 1993)) (“While a party’s delay in moving
to amend a pleading is not alone justification to deny a motion to amend, it is proper to deny relief
where delay is ‘coupled with either improper motive or undue prejudice.’”).
81
Rec. at 112 (footnote omitted) (Trans. ID. 65998757).
13
 1. The MERB’s Exclusion of Canning’s Substantive Testimony
Neither Significantly Prejudiced Finney Nor Violated His
Procedural Due Process Rights

During the merits hearing, Finney’s counsel questioned Canning on direct

examination.82 Immediately before the exchange at issue, Canning testified that he

recalled having served as a witness in connection with Finney’s prior grievance—

the grievance that Finney filed after losing a promotion to Schilling.83 After

Finney’s counsel laid that foundation, the following exchange took place:

Finney’s Counsel : Do you [Canning] remember at all whether
there were allegations in that grievance that
there was an abuse of discretion?

MERB Chairman: Wait. No. No. No. No. You’re not going
down this path.

Finney’s Counsel: I just wanted to establish that he remembered
what it was.

MERB Chairman: He testified as a witness in a previous failure
to promote grievance that your client
brought. End of story.84

Later, DelDOT’s counsel questioned Canning on cross-examination.85 They

had the following exchange:

DelDOT’s Counsel: And did you consider the fact that Mr. Finney
had filed a prior grievance that you were

82
Id. at 360–68.
83
Id. at 362–63.
84
Id. at 363–64.
85
Id. at 368–70.
14
 involved in, in providing a response to Ms.
Gilliam?

Canning: No.86

Finney argues that the MERB committed legal error, abused its discretion,

and violated his procedural due process rights in preventing his counsel from

questioning Canning about the prior grievance.87 Because that grievance targeted

Canning, Finney suspects that Canning developed a bias against him.88 According

to Finney, Canning was destined to give Garcia a higher rating than Finney when he

answered Gilliam’s questions.89

DelDOT responds that Finney’s counsel was trying to establish facts that had

already been established, so the MERB properly cut off his questioning.90 DelDOT

further asserts that on cross-examination, Canning expressly denied that he took

Finney’s prior grievance into account in answering Gilliam’s questions.91 Relatedly,

DelDOT contends that because Canning denied his having a bias on cross-

examination, Finney’s counsel could have explored his theory on redirect

examination but chose not to do so.92 Next, DelDOT argues that Finney’s counsel

failed to question Schilling about what effect, if any, Finney’s prior grievance had

86
Id. at 369.
87
Opening Brief, at 7–8 (Trans. ID. 66061521); Reply Brief, at 1 (Trans. ID. 66157060).
88
See Opening Brief, at 2 (citation omitted) (Trans. ID. 66061521).
89
See id.
90
Answering Brief, at 7 (citation omitted) (Trans. ID. 66120015).
91
Id. at 8 (citations omitted).
92
Id. (citation omitted).
15
on him.93 Lastly, DelDOT argues that there was evidence that bias did not play a

role in the hiring panel’s decision, pointing to Gilliam’s testimony that the hiring

panel did not consider the prior grievance.94

The Court finds that the MERB committed a clear abuse of discretion in

excluding Canning’s testimony. Finney’s counsel began the exchange by citing the

abuse of discretion that Finney alleged in his prior grievance. Finney aimed his prior

grievance at Canning. In the present grievance, Finney asserted violations of Merit

Rules 18.5 and 2.1, claiming, among other things, that bias and retaliation polluted

the promotion process. Given these claims, the history between Finney and

Canning, and the invocation of Finney’s prior abuse of discretion allegation, the

MERB should have known that Finney’s counsel was attempting to explore

Canning’s alleged bias. Of course, if the MERB did know of this purpose but

excluded Canning’s testimony anyway, then the MERB should not have allowed

DelDOT’s counsel to question Canning about that same subject. Either way, the

Court finds that the MERB’s exclusion of Canning’s testimony constitutes a clear

abuse of discretion.

Nonetheless, this clear abuse of discretion did not significantly prejudice

Finney. Although the MERB stopped Finney’s counsel from questioning Canning

93
Id. (citation omitted).
94
Id. (citation omitted).
16
on direct examination, nothing prevented Finney’s counsel from trying again on

redirect examination. DelDOT’s counsel asked Canning a pointed question about

his alleged bias on cross-examination, “teeing up” the issue for Finney’s counsel to

address on redirect examination. Although Finney’s counsel might have been

discouraged by his earlier exchange with the MERB, that alone does not rise to the

level of significant prejudice, which is what must be shown for the Court to reverse

an evidentiary ruling.

For a similar reason, Finney’s procedural due process claim must fail as well.

Finney quotes the Court’s decision in Ridings v. Unemployment Insurance Appeal

Board for the proposition that “[d]enial of procedural due process occurs where the

exercise of power by an administrative officer or body is arbitrary or capricious.”95

But in that case, the Court found that the Board’s action had deprived the claimant

of “a full opportunity to testify before the Board.”96 In other words, the Board’s

action prevented the claimant from presenting his complete case. Here, though,

Finney’s counsel had an opportunity to explore Canning’s alleged bias on redirect

examination, so the MERB did not prevent Finney from presenting that aspect of his

case. Accordingly, the Court affirms the MERB’s evidentiary ruling excluding

Canning’s testimony.

95
Opening Brief, at 7 (quoting Ridings v. Unemployment Ins. Appeal Board, 407 A.2d 238, 240 (Del.
Super. Ct. 1979)) (Trans. ID. 66061521).
96
Ridings v. Unemployment Ins. Appeal Board, 407 A.2d 238, 240 (Del. Super. Ct. 1979).
17
 2. The MERB’s Exclusion of Finney’s Impeachment Testimony
Constituted a Clear Abuse of Discretion That Significantly
Prejudiced Finney

At the MERB merits hearing, Finney’s counsel asked Gilliam on direct

examination whether she checked both candidates’ references to resolve the split

hiring panel.97 Gilliam testified that she “check[ed] with the supervisor and the

supervisor’s supervisor”—that is, Schilling and Canning.98 Finney’s counsel then

asked Gilliam whether she recalled her testimony at the Step III hearing about this

very subject.99 Gilliam said that she could not recall.100 Finney’s counsel responded,

“You don’t recall testifying that you pulled references for both Mr. Finney and Mr.

Garcia as part of the process to determine how to resolve the split panel?”101 Gilliam

replied, “I don’t remember saying it that way, no.”102

Later in the merits hearing, Finney’s counsel called Finney as a witness.103

On direct examination, Finney’s counsel asked Finney whether he recalled Gilliam’s

testimony both from earlier that day and from the Step III hearing.104 Finney

97
Rec. at 294 (Trans. ID. 65998757).
98
Id.
99
Id. at 294–95.
100
Id. at 295.
101
Id.
102
Id.
103
Id. at 374–90.
104
Id. at 375.
18
confirmed that he did.105 But before Finney’s counsel could begin to explore

Finney’s recollection, the MERB interjected:

MERB Chairman: No. The Board does not allow people who
testify from memory about what may or may
not have been said at the Step III Hearing. It
is not transcribed. We do not have a verbatim
testimony. And we will not accept it as prior
inconsistent statements.

Finney’s Counsel: Even for impeachment?

MERB Chairman: Who[m] are you impeaching?

Finney’s Counsel: Ms. Gilliam.

MERB Chairman: No.106

Finney’s argument is that Gilliam changed her story sometime between the

Step III hearing and the merits hearing.107 According to Finney, Gilliam testified at

the Step III hearing that she was deliberately “pulling references” from the

candidates.108 By contrast, Finney asserts, Gilliam testified at the merits hearing

“that she was simply reaching out to individuals with knowledge of the candidates

without regard to who[m] they listed as references.”109 Finney wanted to testify

105
Id.
106
Id. at 375–76.
107
Reply Brief, at 4 (Trans. ID. 66157060).
108
Id.
109
Id.
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about Gilliam’s Step III hearing testimony to impeach Gilliam’s merits hearing

testimony.110

DelDOT argues that Gilliam testified at the merits hearing that she could not

recall her Step III hearing testimony, so her testimony was not inconsistent with her

prior testimony.111 For that reason, DelDOT believes that Finney’s counsel was

trying to offer Finney’s testimony to prove the truth of Gilliam’s Step III hearing

testimony.112 DelDOT therefore concludes that the MERB correctly excluded

Finney’s testimony, which was “unreliable, self-interested, hearsay evidence.”113

The Court finds that the MERB’s exclusion of Finney’s impeachment

testimony constituted a clear abuse of discretion that significantly prejudiced Finney.

The MERB’s concern about “allow[ing] people who testify from memory about

what may or may not have been said” would make sense if Finney’s counsel were

attempting to introduce Gilliam’s prior testimony for the truth of the matter

asserted.114 But that is not what Finney was attempting to do. Finney’s counsel

sought to offer Finney’s testimony for the limited and specific purpose of

110
Id.
111
Answering Brief, at 8–9 (Trans. ID. 66120015). The Court will take this opportunity to note
that, under the Delaware Rules of Evidence, “[e]xtrinsic evidence of a witness's inconsistent
statement is admissible [even] if the witness does not clearly admit or deny the prior inconsistent
statement.” Adams v. Aidoo, 2012 WL 1408878, at *17 (Del. Super. Ct. March 29, 2012) (citing
Del. R. Evid. 613(c)).
112
Answering Brief, at 9 (Trans. ID. 66120015).
113
Id.
114
Rec. at 375–76 (Trans. ID. 65998757).
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impeachment. Yet the MERB held firm, still demanding that Gilliam’s prior

testimony be proved by verbatim transcript. As Finney argues, “[w]ith that as a

standard, the MERB would in actuality need to exclude the majority of what is

proffered to it as testimony in every single hearing, because much of it is not

supported by a verbatim record.”115 Indeed, the MERB regularly hears witness

testimony and assesses its credibility. It could have done the same here: allow

Finney to testify about what Gilliam might (or might not) have said at the Step III

hearing and then determine how much weight to assign to that testimony.

The Court therefore finds that the MERB committed a clear abuse of

discretion. It drew an arbitrary line between acceptable and unacceptable extrinsic

evidence of a witness’s prior statement for the purpose of impeachment. In doing

so, the MERB caused Finney significant prejudice, preventing him from trying to

refute Gilliam’s testimony that the reference check was evenhanded. Whether the

reference check was, in fact, evenhanded is a question at the heart of the Merit Rule

violations that Finney alleges. Accordingly, the Court must reverse the MERB’s

evidentiary ruling in this instance.116

V. CONCLUSION

115
Reply Brief, at 5 (Trans. ID. 66157060).
116
Because the Court has found that this evidentiary ruling constitutes a clear abuse of discretion,
the Court need not decide whether the ruling also violated Finney’s procedural due process rights.
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 To summarize, the Court finds that the MERB committed reversible legal

error by denying Finney’s motion to amend his MERB appeal based on a

misapplication of Superior Court Civil Rule 15. The Court affirms the MERB’s

evidentiary ruling excluding Canning’s substantive testimony; specifically, the

Court finds that the MERB committed a clear abuse of discretion in excluding the

testimony but that this decision neither significantly prejudiced Finney nor violated

his procedural due process rights. Lastly, the Court finds that the MERB committed

a clear abuse of discretion by excluding Finney’s impeachment testimony and that

this evidentiary ruling significantly prejudiced Finney.

The Decision and Order of the MERB is therefore AFFIRMED IN PART,

REVERSED IN PART, AND REMANDED IN PART for further proceedings

consistent with this decision.

IT IS SO ORDERED.

Jan R. Jurden
Jan R. Jurden, President Judge

cc: Prothonotary

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