M.S., CSC Docket No. 2020-1715

BackgroundM.S. requests reconsideration of the attached final decision issued on November 19, 2019, which found that there was no violation of the New Jersey State Policy Prohibiting Discrimination in the Workplace (State Policy). See In the Matter of M.S., Department of Transportation (CSC, decided November 19, 2019).

In the prior matter, M.S. alleged that he was subjected to discrimination based on his age in violation of the State Policy. Specifically, he alleged that his non- selection for a position was discriminatory as he informed his co-workers that he planned to retire at age 60, that his supervisor inappropriately set deadlines, a computer system was improperly removed from his work computer, and the panel that interviewed him was serving in a lower level title than the position he sought, asked inappropriate follow up questions, and took notes in pencil. M.S.’s allegations were investigated and there was no substantive evidence to show that he was singled out or discriminated against based on his age. M.S. appealed to this agency and in its November 19, 2019 decision, the Civil Service Commission (Commission) upheld that there was no violation of the State Policy.

Appellant's argumentIn his request for reconsideration, M.S. asserts that he did not state in the prior matter that J.J. was the only panelist who took notes in pencil during his interview. Rather, he states that the other panelists, A.T. and T.M., also took notes in pencil which enabled them to change their ratings after the conclusion of his interview. He adds that he is aware of such information as he previously served with panelists. M.S. also contends that J.T. did not discipline a female employee who refused an assignment. M.S. adds that no deadlines have been imposed since he filed the EEO complaint in this matter, and the witness who confirmed that there were deadlines has since been promoted. M.S. contends that the removal of the BAMS system from his computer cannot be the result of business necessity, as J.T. is not trained to use the system. M.S. adds that the assessment in his employee evaluation is degrading as he has accessed the NJCFS system numerous times during his 25 year career and, as such, he disagrees with his supervisor’s assessment that he should learn the system. Moreover, M.S. asserts that he is unaware of what disruptive behavior he was involved in as referenced in the prior decision.

Appointing authority's argumentIn response, the Division of Civil Rights and Affirmative Action (DOCR) maintains that M.S. has not provided any information that would show that a material error occurred or that would change the outcome of the prior matter. Specifically, DOCR asserts that it did not indicate that J.J. was the only panelist who took notes in pencil. Rather, it stated that J.J. took notes in pencil and was the only panelist who asked questions. It adds that the selected candidate possessed experience in managing audit programs and supervisory experience, and the candidate rated higher during the interview than M.S. and four other candidates. As such, the selected candidate was properly appointed and there was no evidence to show that M.S. was discriminated against or singled out based on age. DOCR states that a witness in the prior matter who confirmed information with respect to deadlines has since been properly promoted in accordance with promotional procedures. Moreover, DOCR confirms that a Preliminary Notice of Disciplinary Action (PNDA) was issued against M.S. on October 12, 2017, for which he received an official reprimand. However, pursuant to a settlement agreement, the reprimand was removed from his personnel file on September 14, 2018.

BackgroundIn response, M.S. asserts that he has performed the duties of a Program Supervisor on several occasions during his 24 years of service in his unit, and such duties including authorizing leave time and employee timesheets. He adds that he possesses a supervisory management certificate. M.S. adds that he has never filed a prior EEO complaint during his lengthy career, so he now asks that his motivation for filing the instant complaint be thoroughly considered. He contends that he could provide several witnesses in support of his claims. M.S. states that the three employees who he named in his complaint were either promoted or are no longer working in his unit, and J.T.’s behavior has changed as he no longer engages in the activity as alleged. M.S. does not understand why the BAMS system has not been put back on his computer as he has continued to address issues with employees pertaining to the program since the time of its removal. M.S. explains that he received a commendation letter from the Department of Justice with respect to the work he performed on the BAMS database, and all of his work was removed by J.T.1 M.S. claims the program was removed as J.T. was not trained in its use and knew less about it than M.S.2 M.S. requests to see any work that J.T. performed on the

1 M.S. states he was the point person for the program and he monitored the warehouse. Only six employees including M.S. were trained to use it as it is a complicated system. 2 M.S. alleges that the BAMS program is an expensive program and its lack of use costs a lot of money, and M.S. wanted to train other employees regarding the system prior to his retirement.

BAMS system to confirm the removal of the system was business related. With respect to deadlines, M.S. states that there is no way to know when an audit will end. M.S. explains that a trainee is not assigned an audit from beginning to end, however, the trainee was promoted. M.S. asks how many deadlines have been imposed on employees since he filed his EEO complaint, and the only deadline that was ever imposed in his entire career was the deadline imposed by J.T. M.S. argues that since J.T. became supervisor, no audits are completed. The so-called refusal to perform an assignment was only a delay as indicated by DOCR in the prior matter. The deadlines constitute a violation of auditing standards and were removed by management. Other employees have two years to do an audit without deadlines, but he had a deadline imposed.

CONCLUSION

RuleN.J.A.C. 4A:2-1.6(b) sets forth the standards by which the Commission may reconsider a prior decision. 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 of the case and the reasons that such evidence was not presented at the original proceeding. It is noted that the burden of proof is on the appellant to provide information in support of her case. See N.J.S.A. 11A:2-6(b) and N.J.A.C. 4A:2-1.4(c).

AnalysisIn this matter, M.S. has not provided any substantive information to show that a material error occurred or any new information that would somehow change the outcome of the prior matter. With respect to M.S.’s arguments pertaining to the BAMS system, he has not refuted DOCR’s findings that the removal of the system from his computer was work-related. Although M.S. argues that the BAMS system is not currently being used, he has provided no substantive evidence in support of his claims, and even if true, such information does not establish his contentions. It is at the appointing authority’s discretion to implement and assign the BAMS system to employees at its business discretion, and the fact that M.S. is not currently using it does not establish that he was discriminated against. Although M.S. states he is licensed to use the BAMS system and J.T. does not know how to use it, such information does not establish he claims under the State Policy. Moreover, none of his purported new information establishes that any actions were taken against him based on age. The remainder of his claims were already addressed in the Commission’s prior decision. Accordingly, M.S. 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.