J.E., CSC Docket No. 2020-2000

BackgroundThe Department of Human Services, represented by Achchana Ranasignhe, Deputy Attorney General, requests reconsideration of the Civil Service Commission’s (Commission) decision which ordered that the appeal by J.E., a Cottage Training Supervisor at Woodbine Developmental Center (WDC), of the determination of the Chief of Staff, Department of Human Services (DHS), which found that he failed to present sufficient evidence 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), be referred to the Office of Administrative Law (OAL) for a hearing as a contested case. A copy of the Commission’s decision, In the Matter of J.E. (CSC, decided December 18, 2019), is attached hereto and incorporated herein.

By way of background, the instant appeal stems from a June 22, 2018 incident in which the respondent, J.E., a Cottage Training Supervisor at Woodbine Developmental Center (WDC), an African-American, alleged that J.F., a Licensed Practical Nurse, a Caucasian, violated the State Policy Prohibiting Discrimination in the Workplace (State Policy) by subjecting him to discrimination on the basis of his race and national origin. Specifically, the appellant alleged that J.F. told him that she did not want him entering an emergency storage room because her pocketbook was in there and he maintained that she did so because of his race and/or national origin. J.F. also filed complaints in June and July 2018 alleging that the appellant subjected her to a hostile work environment and violated the State Policy during the same June 22, 2018 incident, as well as incidents that occurred on July 2, 2018 and

July 12, 2018.1 Inresponse to the appellant’s State Policy complaint, the appointing authority’s Office of Equal Employment Opportunity (EEO) conducted an investigation which consisted of the interviews of the appellant and J.F. on August 16, 2018, and the review of 19 relevant documents. Included among the 19 documents reviewed by the EEO were J.F.’s three workplace violence complaints, the appellant’s statement from the investigation of J.F.’s workplace violence complaints, the statements of six witnesses interviewed in connection with J.F.’s workplace violence complaint investigation, the appellant’s State Policy complaint and J.F.’s State Policy complaint. Based upon the foregoing, the EEO did not substantiate the appellant’s allegation that J.F. violated the State Policy.

In its prior decision, the Commission found that material disputes of facts existed which warranted granting a hearing at the OAL. Specifically, the record found no evidence in the record to support the EEO’s conclusion that the respondent could not access the emergency storage room without permission. Additionally, the Commission observed that after the respondent alleged during his EEO interview that J.F. calling him “Brian, whatever your name is” was racist, the EEO investigator responded that the statement was not discrimination and did not violate the State Policy. The Commission found that the EEO’s conclusion on that issue was premature and the Commission expressed concern that that the EEO investigator’s dismissal of the allegation on the spot may have clouded the EEO’s appearance of impartiality. Furthermore, the Commission found that the EEO’s questioning of J.F. was deficient as the questions it asked her about the respondent’s allegations were not structured in a way which could be reasonably be expected to get to the truth of the matter and created the impression that the EEO might not have taken the J.E.’s complaint seriously because a separate workplace violence investigation found that he subjected J.F. to a hostile work environment. Moreover, it appeared that the EEO failed to interview three key witnesses about the appellant’s complaint: C.B., Assistant Supervisor of Resident Living; a temporary Practical Nurse; and a Cottage Training Supervisor. According, the Commission referred the matter to the OAL for a hearing as a contested case.

Appointing authority's argumentThe appointing authority submitted the instant request for reconsideration by letter dated January 30, 2020. Based upon the foregoing, this agency requested, pursuant to N.J.A.C. 1:1-3.3(a), that the OAL return this matter to it in order to enable the Commission to review the instant request.

Appellant's argumentIn its request for reconsideration, the appointing authority asserts that the OAL is not the proper venue to cure the deficiencies that the Commission found in the EEO’s investigation, as it maintains the adversarial nature of an OAL hearing would not lend itself to the broad fact-finding that could be accomplished by a to a hostile work environment during the June 22, 2018 and July 2, 2018 incidents, but did not substantiate J.F.’s complaint for the July 12, 2018 incident.

1 WDC subsequently conducted a workplace violence investigation which found that J.E. subjected J.F.

thorough investigation. It contends that the nature of an OAL hearing would force it to present evidence to undermine J.E.’s claims. Furthermore, it maintains that without a proper investigation, it is unclear whether either party has sufficient evidence to present its best case at an OAL hearing. The appointing authority asserts that the matter should instead be remanded to it, so as to allow the EEO to conduct a new, exhaustive investigation which would adhere to the guidelines set forth by the Commission in its December 18, 2019 submission. It submits that the EEO would, for example, interview the witnesses that the Commission stated it should have interviewed. Moreover, it maintains that J.E. would retain his right to appeal any determination made by the EEO upon competition of a new investigation.

In response, J.E. states that he does not want to see the matter remanded to the EEO.

CONCLUSION

RuleN.J.A.C. 4A: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 DHS has met the standard for reconsideration.

AnalysisIn the instant matter, the appointing authority has indicated that by remanding the matter to it for further investigation it is prepared to remedy the deficiencies in its prior investigation. While the Commission recognizes that J.E. has indicated that he would prefer that the matter not be remanded to the appointing authority, it notes that he retains the ability to appeal the determination from this second investigation to the Commission if he disagrees with its outcome. Therefore, it is appropriate to remand this matter back to the appointing authority for further investigation. In undertaking further investigation, the EEO should interview C.B., as well as the temporary Practical Nurse and Cottage Training Supervisor who indicated in statements provided during the workplace violence investigation that they witnessed at least a portion of the interaction between J.E. and J.F. Furthermore, it should re-interview J.F. using a more open-ended interview structure. Specifically, the EEO should get a narrative from J.F. with her account of the June 22, 2018 so as to ascertain her basis for initiating an interaction with J.E. and determine whether, in context, any remarks she may have made, like “Brian, whatever your name is”, violated the State Policy as a demeaning reference to J.E.’s membership in a protected class, such as race, ethnicity, or national origin. Moreover, if the investigation reveals other material witnesses, those witnesses should be interviewed as well.

ORDER

Therefore, it is ordered that this request be granted and that this matter be remanded to the appointing authority for further investigation consistent with this decision.

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

Inquiries Christopher Myers and Director Correspondence Division of Appeals and Regulatory Affairs

Civil Service Commission

Written Record Appeals Unit

P.O. Box 312

Trenton, New Jersey 08625-0312