L.J., CSC Docket No. 2019-1237

BackgroundL.J., a former Assistant Supervisor 1, Administrative Services! with William Paterson University (WPU), requests reconsideration of the attached final decision, rendered on October 3, 2018, which found that he failed to support a finding that he had been subjected to a violation of the New Jersey State Policy Prohibiting Discrimination in the Workplace (State Policy).

The allegations are fully explained in the attached decision which is incorporated herein. The petitioner, an African-American male, filed a complaint with WPU’s Office of Employment Equity and Diversity (OEED) alleging that he was discriminated against on the basis of his race with respect to compensation and staffing in his department. Specifically, the petitioner complained that even though he was one of the most senior employees in WPU’s Division of Administration and Finance, he was the lowest paid employee holding a “Director” title and his salary increases did not mirror those of similarly situated employees. The petitioner also claimed that since 2006 his requests for additional staff were repeatedly denied. An investigation by the OEED did not find evidence to support the claim that the petitioner had been subjected to differential treatment on the basis of his race. In its prior decision, the Civil Service Commission (Commission) found that the petitioner’s claims regarding his compensation and classification were untimely. With respect to the petitioner’s claim that he was subjected to disparate treatment on the basis of his race in violation of the State Policy, the Commission found that an adequate investigation was conducted, that the relevant parties were

! The petitioner retired from his position, effective June 30, 2017.

interviewed and that the investigation failed to establish that the petitioner was discriminated against or subjected to retaliation in violation of the State Policy.

Appellant's argumentIn his request for reconsideration, the petitioner asserts that the Commission’s prior decision overlooked clear deficiencies in the OEED’s investigation. Specifically, he contends that the Commission should have rejected the OEED’s determination as untimely because it did not complete its investigation within 120 days of his March 23, 2017 complaint. Additionally, he maintains that WPU’s initial determination and its responses to his initial appeal to the Commission were biased. In this regard, he notes that WPU’s initial determination was rendered by the Vice President for Human Resources and he maintains that she had a conflict of interest because her supervisor, the Vice President for Administration and Finance, headed the the division that he maintained discriminated against him. Additionally, the petitioner asserts that the correspondences from the OEED demonstrate that its investigation of his complaint was not thorough and impartial.

Further, the petitioner argues that the Commission's October 3, 2018 decision relied upon false and misleading information from WPU and that the Commission consequently failed to recognize that he was subject to discrimination on the basis of his race. In this regard, he maintains that its finding that he declined a position as a “non-unionized higher education manager” was untrue. He asserts that when WPU asked him about becoming a “non-unionized higher education manager,” it was not extending a formal offer to do so. Rather, it was merely an effort by WPU to gauge his theoretical interest in such a position. He contends that WPU failed to provide sufficient evidence that it made a concrete offer of a “non-unionized higher education manager” position to him as the affidavits WPU provided from its Vice President for Administration and Finance and its Director of Human Resources did not specify when an offer was made and the OEED did not provide any documentation to otherwise prove that WPU made him such an offer. The petitioner complains that the OEED did not supply the Commission with the more than 100 pages of emails he and others sent to it regarding the investigation. He also argues that the knowledge and experience of the individual the appointing authority hired to replace him as the “Director of Purchasing” did not justify WPU’s decision to provide him with a higher salary. Specifically, the petitioner asserts that his successor's knowledge of the P-Card Program was insignificant as the P-Card Program represents a relatively small part of the Purchasing Department’s functions and he maintains that many of the day- to-day P-Card Program operations are handled by a different administrator at WPU. Additionally, the petitioner maintains that his successor’s experience relative to his own did not support his successor’s higher salary. In this regard, the petitioner asserts that his 25 years of service at WPU are more significant than the record of his successor, as much of his successor’s experience was with a different institution and included duties such as managing the storeroom and mailroom which are not among his responsibilities as the “Director of Purchasing” at WPU. The petitioner also submits that WPU’s claim that he was represented by the Communication Workers of America (CWA) was inaccurate. He maintains that WPU was obligated to advise him about his rights but failed to do so. Accordingly, he attributes any delay in appealing his classification and compensation to that failure. Finally, the petitioner maintains that the Commission is required to consider the Diane B. Allen Equal Pay Act, P.L. 2018, c. 9, and to evaluate whether race was a factor in the compensation he received relative to other Directors at WPU within the last six years. In this regard, he argues that because his functional title was Director of Purchasing, he had all of the duties and responsibilities of a Director, but not the compensation commensurate with those of other similarly situated employees. He maintains that the record demonstrated that two Caucasians had higher titles and significantly higher salaries, even though they were not higher education managers or department heads.

In response, WPU, represented by Glenn R. Jones, Esq., General Counsel, WPU, argues that the petitioner has not met his burden of proof for reconsideration as he merely restates his disagreement with the OEED’s and the Commission’s decisions without furnishing any new or additional evidence that would have changed the Commission’s initial decision in this matter or demonstrating that a material error occurred. WPU asserts that the timing of its determination following his March 23, 2017 OEED complaint and the supposed conflict of interest cited by the petitioner do not support reconsideration because the petitioner did not raise these issues prior to the Commission’s October 3, 2018 decision and he has not offered an explanation for his failure to do so, or how such a finding by the Commission would have changed the outcome of its prior decision. Additionally, it argues that the petitioner has not offered sufficient proof that its determination was untimely. Further, it maintains that the OEED’s investigation was impartial and that the Vice President of Human Resources’ reporting relationship to the Vice President for Administration and Finance did not create a conflict of interest. Specifically, it asserts that there was no conflict as the Vice President of Human Resources reported directly to the President of the University and the petitioner did not report directly to the Vice President for Administration and Finance.

Further, WPU argues that the petitioner has not provided any support for his claim that the OEED submitted false and/or misleading information or his contention that its investigation was biased in favor of WPU, It asserts that his denials about being offered a “non-unionized higher education manager” position or holding a CWA position rehash arguments that he made to the Commission prior to October 3, 2018 and do not constitute new evidence. Moreover, it maintains that he has not provided any proof that it made false statements and it denies his assertion that there are “more than 100 pages of emails” which demonstrate that the OEED’s investigator made false statements. WPU contends that because the petitioner has the burden of proof in this matter, he is required to submit documentation to support this claim. However, because he has not done so, he has failed to satisfy his burden of proof. WPU further argues that the petitioner's assertions about the qualifications of his successor in the “Director of Purchasing” position are too vague to merit reconsideration. It also claims that the petitioner is ignoring evidence that his race was not a factor in his compensation and that there were several African- American “non-union higher education managers” who were compensated at a higher rate than him, even though these individuals were less experienced. Moreover, WPU maintains that the petitioner’s claim that it had a duty to advise him about his classification appeal rights was rejected by the Commission in its prior decision, which noted that on December 4, 2014 he signed a certification that he had reviewed the instructions to a Position Classification Questionnaire he completed. Finally, WPU submits that the Diane B. Allen Equal Pay Act does not apply to the instant matter as it did not become effective until July 1, 2018, more than a year after his March 2017 complaint and his June 30, 2017 retirement, and it does not contain a retroactive application clause.

CONCLUSION

N.J.A.C. 44:2-1.6(b) sets forth the standards by which a prior decision may be reconsidered. This rule provides that a party must show that a clear material error has occurred or present new evidence or additional information not presented at the original proceeding which would change the outcome and the reasons that such evidence was not presented at the original proceeding. A review of the record reveals that the petitioner has not met the standard for reconsideration.

In the instant matter, the petitioner does not present any new evidence or additional information that would change the outcome of his case. Moreover, he has not shown that the Commission made a clear material error in its October 3, 2018 decision. Rather, the petitioner argues that the Commission should have rejected WPU’s determination as untimely because it was not rendered within 120 days of his March 23, 2017 complaint. At the time of his prior appeal to the Commission, the petitioner clearly knew when he filed his OEED complaint and when WPU issued its determination letter following the OEED investigation, but he failed to argue that WPU’s determination was untimely. Thus, he may not now raise this issue on reconsideration. Regardless, while the State Policy generally requires that the investigation of a complaint be completed and a final letter of determination issued no later than 120 days after the initial intake of a complaint, it permits a State agency head to extend this time for up to GO additional days in cases involving exceptional circumstances. See N.J.A.C. 4A:7-3.20). Although the August 8, 2017 date of WPU’s determination letter was more than 120 days after the petitioner's OEED complaint, it was within 180 days of it and the petitioner has not demonstrated that his case did not involve exceptional circumstances. Moreover, there is no provision in the State Policy mandating that the petitioner’s complaint be upheld if the State Policy's requirements are not fulfilled. See In the Matter of

Karen Kritz (MSB, decided January 25, 2006). Accordingly, his argument concerning the timing of WPU’s determination letter fails to support reconsideration of the Commission's initial determination in this matter. Similarly, the petitioner’s arguments regarding the Vice President of Human Resources’ reporting relationship to the Vice President for Administration and Finance does not support reconsideration, as he failed to raise this issue with his initial appeal, he has not stated why he did not previously raise this argument and he has not explained how it would change the outcome of the Commission's prior decision.

The petitioner’s arguments concerning the offer of a “non-unionized higher education manager” position and WPU’s proffered reasons for differences in his compensation relative to that of other employees are issues that the Commission addressed in its prior decision. Specifically, the Commission found that the the OEED conducted interviews and reviewed pertinent documents, including the employment and salary histories of the petitioner and other employees in “higher education manager” titles and CWA titles, and that the record demonstrated that the petitioner’s compensation was lower than that of other Directors within WPU’s Division of Administration and Finance because he served in a CWA-represented position while the other Directors were not in union-covered titles. Additionally, both the Senior Vice President of Administration and Finance and the Director of Human Resources advised the OEED that the petitioner had declined to move from a CWA-represented title to a non-unionized higher education manager title because he did not wish to relinquish the protections he received as an employee in a career service title and the regular salary increases provided for under the CWA contract. The record in the present matter does not demonstrate that a material error occurred with respect to these findings. Notably, the petitioner does not provide any evidence to corroborate his assertion that the statements of the Senior Vice President of Administration and Finance and the Director of Human Resources were untrue and he does not otherwise establish that he was subjected to disparate treatment on the basis of his race. As such, these arguments do not support reconsideration of the Commission’s prior decision. Finally, the Commission finds that it does not have jurisdiction to review a complaint under the Diane B. Allen Equal Pay Act as such a complaint must be filed with the Division on Civil Rights or with the Superior Court of New Jersey. See N.J.S.A. 10:5-13. Accordingly, the petitioner has failed to present a sufficient basis for reconsideration of the Commission’s prior decision.

ORDER

Therefore, it is ordered that this request be denied.

ClosingThis is the final administrative determination in this matter. Any further review should be pursued in a judicial forum.