S.D., CSC Docket No. 2025-43

BackgroundS.D., a Supervising Family Service Specialist 2 with the Department of Children and Families appeals the determination of a Deputy Commissioner which substantiated that the appellant violated the New Jersey State Policy Prohibiting Discrimination in the Workplace (State Policy).

By way of background, the appointing authority’s June 13, 2024 determination indicated that it was alleged that the appellant, who is female, sent an email to all staff in the local office that singled out male employees. Further, during the investigation, the appellant acknowledged that she sent the email to find out who made a comment to an employee in her unit. Based on the investigation, the appointing authority determined that the appellant violated the State Policy. However, in response to the appellant stating that she did not have an opportunity to participate in the statement readback to review the statement that she provided investigator, the appointing authority rescinded its June 13, 2024 decision letter. Thereafter, the Office of Equal Employment Opportunity/Affirmative Action (EEO/AA) reached out to the appellant to schedule a statement readback, but she did not respond. Consequently, the appointing authority issued a November 14, 2024 decision letter finding that the appellant violated the State Policy for the reasons previously indicated.

On appeal, 1 the appellant states that she had been interviewed by the investigator regarding four different matters. However, the appellant questions how the investigation was considered complete when she never had a follow up interview with the investigator. Further, she provides that she never reviewed her statement nor did she sign off on any statement provided to the investigator. Additionally, the appellant presents that the Director of the EEO/AA responded explaining that “The integrity of our investigations is incredibly important and I apologize that this occurred.” She asserts that the investigation was not thorough or impartial because she has no idea what the investigator reported in his investigation as to what caused this matter to be forwarded to the Office of Employee Relations for disciplinary action.2 She highlights that the EEO/AA Policy Statement reads, “All State employees have a responsibility to maintain high standards of honesty, integrity, and impartiality in the performance of the State’s official business.”

Appellant's argumentThe appellant claims that the investigator was not honest and did not show integrity because he did not follow the investigation procedures and that he was not impartial towards her. She states that she has no idea what the investigator wrote in his investigation, and she has no idea what the investigator claims to have happened during their interview. The appellant argues that the investigation violated EEO/AA policy, she has been “discriminated against” by the investigator, and the investigation was not fair or impartial.

The appellant presents that the investigator reported that she alleged that she had been subjected to discrimination based on familial status. She states that this was based on a conversation that she had with the investigator giving an example of how she felt targeted in her office. Specifically, the appellant provides that an employee told her that the employee was not placed in the appellant’s unit due to both of their mother’s having passed. Additionally, the appellant indicates that based on this information, the investigator informed her that she had been subjected to familial status discrimination. She reiterates her belief that the investigation could not be complete because the employee who informed her of the familial status discrimination was on leave so that this employee was never interviewed. Further, the appellant emphasizes her opinion that the investigator’s report provided misinformation as she was interviewed concerning four different issues but there was no follow up regarding any of these issues, she never signed a statement, and the employee who advised her about familial status discrimination was never interviewed.

Appointing authority's argumentIn response, the appointing authority presents that Complainant 1, a female Supervising Family Service Specialist 2, alleged that the appellant created a hostile

1 The appellant’s appeal is in response to the June 13, 2024 determination letter.

She did not provide any subsequent responses after the November 14, 2024 amended determination was issued. 2 Ultimately, the appointing authority did not proceed with disciplinary action.

work environment based on sex/gender by sending an office-wide email targeting male workers as follows:

Hello,

Could the male worker who was near [E.S’s] cubicle and had some things to say about one of my workers on the telephone, please contact me directly? You can contact me on my personal cell phone.

Thank you.

BackgroundThereafter, Complainant 1 forwarded a complaint from Complainant 2 which indicated that he was offended by the appellant’s email. Complainant 2 expressed that he felt discriminated and harassed by the appellant’s email and stated that “other male staff…feel the same way.”

Appointing authority's argumentThe appointing authority provides that during the appellant’s interview, she acknowledged that she sent the email after a subordinate employee stated that she was on the phone with a reporter (a client) and a male employee walked by and said, “doesn’t she know that she can’t question reporters like that?” The appellant explained that the employee was upset. Further, since the appellant was working remotely that day, she sent the email to find out who made the comment since it was important to find this out since her subordinate brought up the concern to her. Additionally, the appellant stated that D.C., a female Senior Executive Service, requested that the appellant retract the message and questioned why she would think the email was appropriate. Subsequently, a June 13, 2024 determination letter was issued finding that the appellant violated the State Policy.

During the investigation, the appellant alleged that D.C. discriminated against her by allegedly refusing to move an employee to the appellant’s tier because both the employee and the appellant recently lost their mothers. The appellant stated that a Witness advised that D.C. stated, “I don’t think it is a good idea to send her (the employee) under [the appellant] because (the employee) lost her mom and [the appellant] also lost her mom.” However, D.C. denied the allegation stating that she delegated staffing assignments to the casework supervisors. D.C., further noted that the appellant already had a Family Service Specialist 1 in her tier and the casework supervisor’s decision was based on a desire to maintain balanced staffing across all units. Additionally, the appointing authority presents that the Witness was interviewed and corroborated D.C.’s account. Therefore, the investigation found insufficient evidence to find that the appellant had been subjected to family status discrimination.

Appellant's argumentThe appellant also alleged that D.C. discriminated against her after she sent the subject office-wide email to staff by questioning the appellant’s thought process and thinking ability while D.C. knew about the appellant’s disability. 3 However, the EEO/AA determined that the appellant did not articulate a sufficient nexus between the alleged conduct to a protected category to the State Policy.

Appointing authority's argumentThe appointing authority states that the appellant questions how the investigation could be complete since the Witness was not interviewed. However, as stated above, the Witness was interviewed and corroborated D.C.’s account and denied that the passing of family members influenced the staffing decision. Concerning the appellant’s comments that she never had a follow up interview, never reviewed her statement, and never signed off any statement provided to the investigator, the EEO/AA rescinded the June 13, 2024 decision letter and contacted the appellant to schedule a statement review. However, the appellant replied that she had been advised not to speak with the EEO/AA until the Civil Service Commission (Commission) reviews her appeal. Subsequently, the EEO/AA advised the appellant that if she did not respond, the matter would be determined by the information obtained during the investigation and a recommendation for disciplinary actions would be resubmitted to the Office of Employee Relations. Thereafter, an amended decision letter was issued dated November 14, 2024 determining that the appellant violated the State Policy.

The appointing authority presents that although disciplinary action was recommended for the appellant, the disciplinary action did not proceed due to contractual time constraints. It states that under the State Policy, employees are expected to cooperate with investigations undertaken pursuant to the policy’s Complaint Process section. Further, failure to cooperate in an investigation may result in administrative and/or disciplinary action, up to and including termination of employment.

The appointing authority notes that once the EEO/AA realized its oversight concerning the appellant’s statement, it offered her a statement readback of her interview, but she declined. However, since the appellant declined the statement readback opportunity, the determination was completed based on the evidence obtained during the investigation.

The appointing authority also notes that the appellant forwarded a statement on behalf of A.S., a then Family Service Specialist 2 4 who is female, where A.S. worked in the intake unit and was on the phone with a reporter, when A.S. heard a male voice say, “you can’t question a mandated reporter.” A.S. indicated that she felt the person made the comment because of her race or gender. After meeting with A.S., the EEO/AA determined that even though A.S. identified a protected category, she

3 For privacy reasons, the appointing authority did not include specific information about this in its response. 4 Personnel Management and Information Systems (PMIS) records indicate that A.S. is now a Family

Service Specialist 1.

did not articulate a sufficient nexus between the alleged conduct to a protected category pursuant to the State Policy.

The appointing authority provides that the appellant alleged that D.C. discriminated against her. Specifically, the appellant’s complaint stated:

A worker who reports directly to me felt as though she was discriminated against by a male in the office She only heard this male voice speaking about her and did not see him. I filed a complaint on her behalf with EEO. I sent an email to the office asking for the male worker who made these comments to contact me directly. I was told to immediately to retract that email. Then [D.C.] put in an email that she needed to address concerns with me.

Appellant's argumentThe appellant also stated that in the past, staff sent gambling emails for a 50/50 and V.G.5 responded saying it is a treat to work with you. The appellant expressed that statement could be potential harassment or unwanted attention to an individual as she felt that the word “treat” could be interpreted in many ways. However, the EEO/AA closed this matter based on a reasonable person standard and the concerns were not based upon a protected category.

CONCLUSION

RuleN.J.A.C. 4A:7-3.1(a) provides that under the State Policy, discrimination or harassment based upon the following protected categories are prohibited and will not be tolerated: race, creed, color, national origin, nationality, ancestry, age, sex/gender, pregnancy, marital status, civil union status, domestic partnership status, familial status, religion, affectional or sexual orientation, gender identity or expression, atypical hereditary cellular or blood trait, genetic information, liability for service in the Armed Forces of the United States, or disability.

N.J.A.C. 4A:7-3.1(b) provides that it is a violation of this policy to use derogatory or demeaning references regarding a person’s race, gender, age, religion, disability, affectional or sexual orientation, ethnic background, or any other protected category set forth in (a) above. A violation of this policy can occur even if there was no intent on the part of an individual to harass or demean another.

N.J.A.C. 4A:7-3.1(c) provides that it is a violation of this policy to engage in sexual (or gender-based) harassment of any kind, including hostile work environment harassment, quid pro quo harassment, or same-sex harassment.

N.J.A.C. 4A:7-3.1(g)1 provides that, in pertinent part, the investigations shall be conducted in a prompt, thorough, and impartial manner.

Analysis5 V.G.’s name could not be located in PMIS.

RuleN.J.A.C. 4A:7-3.2(n)1 provides that the burden of proof shall be on the appellant.

AnalysisIn this matter, it was alleged that by the appellant sending out an email to all staff that singled out male employees that she violated the State Policy based on gender discrimination. See N.J.A.C. 4A:7-3.1(a). Initially, it is noted that a mere reference to someone’s gender is not an automatic violation of the State Policy. Rather, it must be evaluated in the context that the reference was used. During the investigation, the appellant explained that a subordinate reported that she was upset by comments that she heard from a male voice that walked past her where she believed that those comments were made to her based on her race or gender. The appellant explained that she sent the email in question to find out who made the comments. Although the appellant’s use of gender in the subject email, i.e. the male employee, was not an overt adverse negative reference to gender, it was said in the context of a negative tone:

Could the male worker who was near [E.S’s] cubicle and had some things to say about one of my workers on the telephone, please contact me directly? You can contact me on my personal cell phone.

Thank you.

Further, it was an unnecessary reference to gender as the appellant could have simply referred to the person as “the worker” without reference to the employee being male, which is a protected category, and this email was sent to all staff. Therefore, even if there was no intent to harass or demean, the Commission finds that the appellant engaged in gender-based harassment which created a hostile work environment. See N.J.A.C. 4A:7-3.1(c). It is noted that even microaggressions can be a violation of the State Policy. See In the Matter of M.M. (CSC, decided May 3, 2023).

Concerning the appellant’s questioning how the investigation could be considered complete, the record indicates that the appointing authority rescinded its June 13, 2024 determination letter and offered to schedule the appellant for a statement readback, which she declined. Further, contrary to the appellant’s assertion, the appointing authority indicates that it did interview the Witness regarding the appellant’s familial status discrimination allegation, and the Witness confirmed D.C.’s account that assignments were not based on familial status. Additionally, the appellant has not submitted any evidence on appeal that would contradict any of the appointing authority’s findings. Therefore, the Commission finds that the appointing authority’s investigation was conducted in prompt, thorough, and impartial manner. See N.J.A.C. 4A:7-3.1(g)1. Moreover, the Commission finds that the appellant has not met her burden of proof. See N.J.A.C. 4A:7-3.2(n)1.

ORDER

Therefore, it is ordered that this appeal be denied.