R.A., CSC Docket No. 2026-50

BackgroundR.A., a Supervising Family Service Specialist (SFSS) 1 with the Department of Children and Families (DCF), appeals the determination of the Deputy Commissioner, which found sufficient evidence that the appellant had violated the New Jersey State Policy Prohibiting Discrimination in the Workplace (State Policy).

As background, an anonymous complainant alleged that the appellant, a Caucasian, retaliated against Family Service Specialist (FSS) 1 W.S., an African American. Specifically, it was alleged that the appellant retaliated against W.S. because the appellant shared protected equal employment opportunity-related information about W.S.’s previous grievances against the appellant with J.C., a Prosecutor’s Agent with the Cape May County Prosecutor’s Office (CMCPO); that the appellant told J.C. that W.S. likes to “pull the race card;” and that J.C. treated W.S. poorly after the appellant shared this information about W.S. Subsequently, the appellant retaliated against W.S. by not answering his telephone calls when W.S. needed assistance in the community, and the appellant refused to conference with him. DCF’s Office of Equal Employment Opportunity/Affirmative Action (EEO/AA) conducted an investigation, during which individuals with relevant knowledge were interviewed and relevant documentation was reviewed and analyzed. The appellant stated that she did not directly supervise W.S., and there was not a need for him to contact her from the field. She also stated that she did not directly conference cases with W.S. but with his supervisor, unless there was a specific issue on a case. The appellant also denied that she divulged any confidential information about W.S. to any employee at the CMCPO or that she retaliated against W.S. However, the investigation determined through witness corroboration and documentation that there was sufficient evidence to suggest that the appellant retaliated against W.S. Based on the foregoing, the Deputy Commissioner substantiated violations of the State Policy and “that appropriate administrative action will be taken.” In that regard, it was recommended that the appellant be counseled and receive refresher training. The appellant was not disciplined.

Appellant's argumentOn appeal to the Civil Service Commission (Commission), the appellant explains that W.S. came to the Cape May Local Office in March 2021 and was an intake worker. She notes that she needed to conduct investigatory interviews with W.S. over concerns with his work performance. He was in her “tier” and chain of command until July 2023, at which time he shifted to another tier with B.D., SFSS 1, and L.B., then-SFSS 2. On or about that time, W.S. was suspended from working the Special Response Unit (SPRU) and thereafter filed a grievance dated October 31, 2023, which stated that he believed the suspension to be an act of retaliation against his disclosure and admission of his witnessing Division of Child Protection and Permanency staff and management “displaying their bias onto a father on my caseload.” The appellant “adamantly” denies that she told J.C. anything related to this as their relationship is “professional.” She states her understanding that K.W., an FSS 2, and J.C. were the only ones present for the conversation on January 25, 2024 where J.C. allegedly stated that W.S. “likes to pull the race card.” While K.W. was interviewed, J.C. never was. The appellant asserts that the EEO/AA told her that it could not interview J.C. because she is not a DCF employee. The appellant contends that J.C. should have been interviewed because she does not see how a finding can be made against her when the other person involved in the conversation was never interviewed.

The appellant also explains that as a Casework Supervisor (CWS),1 she is not the direct supervisor to workers.2 Rather, her role is to conference with her supervisors and the supervisors conference with their workers. If there is a specific case that requires more detailed decision-making such as a safety protection plan or removal, the supervisor and worker will bring it to her attention to conference. W.S.

1 The Commission presumes that CWS is a functional or descriptive title. N.J.A.C. 4A:3-3.1(c). 2 It is noted that SFSS 1 is a second level supervisory title, assigned to the S bargaining unit. The definition section of its job specification reads as follows:

Under direction of a Local Office Manager or other supervisory official [in] the

Department of Children and Families, oversees the work of subordinate supervisory level staff involved in the delivery of social and protective services, assists in administering office activities according to agency policy in personnel, budget, systems, and training; coordinates service with other family and children’s services providers and maintains positive relationships with other concerned community groups and individuals; participates in the development of policy, procedures, and standards; does other related duties.

SFSS 2 is a first level supervisory title, and FSS 1 is a nonsupervisory title.

and all workers always have a direct supervisor to call when needed, but if there is an extenuating circumstance and no one is available, workers will contact the CWS. The appellant insists she continued to communicate with W.S. when he was in her tier from April 2023 to July 2023 and never refused to conference with W.S. or take his call from the field. She also insists she has no emails or voicemails where W.S. asked to conference with her, and she ignored him. She maintains that during the time of the investigatory interviews, she continued to communicate with W.S. regarding cases and the communication was professional.

The appellant pleads to have the determination overturned. She argues that any evidence that the EEO/AA reported having is hearsay or possibly from an incredible witness or W.S. himself, who has indicated having ill feelings towards her. In support, she provides copies of her phone records from March 2023 to the beginning of August 2023, which show that W.S. called the appellant on June 15, 2023 with the call lasting eight minutes. The appellant called W.S. on July 25, 2023 for a one- minute call. The appellant texted W.S. at 2:10 p.m. on July 25, 2023 asking him to join a meeting. The appellant did not receive a response and called W.S. at 2:12 p.m. Additionally, the appellant provides copies of various email correspondence between W.S. and herself in the June 2023 – August 2023 timeframe.

Appointing authority's argumentIn response, the appointing authority explains that a January 29, 2024 interoffice memorandum noted that the anonymous complainant stated that J.C. admitted that she yelled at W.S. and threatened to call J.M., a member of the Senior Executive Service, but called the appellant instead. It was also noted that K.W. stated that J.C. told K.W. “that [J.C.] doesn’t like [W.S.]” and stated that “[W.S.] was talking and trying to convince himself he was doing something right.” It was further noted that J.C. stated that she knows about “the grievances [W.S.] has against [the appellant]” and knows about how “he plays the race card,” but she did not say where she got this information from. The anonymous complainant stated that K.W. acknowledged that J.C. did not say where she got the information from but also stated that J.C. insinuated that she got that information from the appellant because J.C. made a point to say, “I just talked to [the appellant].” The anonymous complainant added that this additional information was not documented in the memorandum because it was K.W.’s assumption. During the EEO/AA investigation, K.W. indicated that J.C. explained to her that the appellant made J.C. aware of W.S.’s grievances against the appellant.

The appointing authority adds that the anonymous complainant stated that since the January 25, 2024 incident, the appellant continued to make disparaging comments about W.S. Specifically, in July 2024, they spoke to the appellant because W.S. needed protected time and needed to be removed from the intake rotation. The anonymous complainant stated that the appellant replied, “I want no part of him, do whatever you want when it comes to him.” The anonymous complainant stated that the appellant supervises the intake screener, and the anonymous complainant wanted to communicate their decision to take W.S. off rotation. The anonymous complainant stated that as a result, they do not call the appellant for anything about W.S.

The appointing authority indicates that it stands with its determination as it is reasonable to believe that the appellant divulged W.S.’s confidential, protected equal employment opportunity activity to J.C. Further, the anonymous complainant also alleged that the appellant stated to them that she did not want to be involved in any decision about W.S., further ostracizing him.

Appellant's argumentIn reply, the appellant maintains that it is not routine that a supervisor or CSW would make decisions on protected time for a worker “outside of their tier.” She insists “[t]here isn’t a bone in [her] body that would think to say anyone was ‘pulling the race card’ as that is not in [her] nature.” She maintains that there was no reason in her interaction with J.C. for the conversation to turn that way. She complains that the determination in this matter “seems based upon interpretations, hearsay and assumptions.” She questions whether the witnesses were asked for a timeline, including when W.S. arrived at the CMCPO and when he was being treated poorly.

The appellant denies saying, “I want no part of him, do whatever you want when it comes to him.” She maintains that she communicates as necessary to share in the supervision of intake. As there are decisions that can be made without consulting, she and the anonymous complainant often connect just to keep each other informed. The appellant asserts that she was afraid to even have a conversation about W.S. and so she told the anonymous complainant that it was her decision if W.S. needed protected time. She claims she was trying to ensure she was protected so nothing more that she said was misconstrued. The appellant insists she has never denied a worker protected time when they have needed it. In fact, she claims, she offers it when she can see when a worker’s caseload is high and they may be overwhelmed. She also insists that just because W.S. may have said to the anonymous complainant that she did not answer his telephone calls or conference with him does not make it true. In support, the appellant provides a copy of a text exchange between herself and J.C. that occurred on January 25, 2024, where J.C. expresses dismay at W.S.’s handling of the case and the appellant urges J.C. to call J.M.

Appointing authority's argumentIn reply, the appointing authority maintains that it is reasonable to believe that the appellant refused to conference with W.S. because of his having filed a past equal employment opportunity grievance. Further, it is reasonable to believe that the appellant divulged W.S.’s confidential protected activity to J.C., which led to J.C.’s subsequent negative comments and behavior towards W.S., including the statement that he liked to “pull the race card.” The appointing authority contends that the personal accounts of the several witnesses serve to further support the reasonableness of these beliefs. The appointing authority adds that W.S.’s complaint against the appellant based on retaliation arose as a result of incidents that occurred between January 2023 and April 2023, when he still worked under the appellant in the same tier.

In response, the appellant states that there were no other witnesses to the conversation between J.C. and K.W., and other witnesses offered their “perception, not facts.” She also maintains that, even before April 2023, she was communicating with W.S. regarding cases, SPRU, and time off. The appellant insists W.S. did not express any ill feelings toward or about her until April 2023. She highlights that on March 14, 2023, the appellant reached out to W.S. to comment on his kind words he wrote in his Performance Assessment Review. W.S. responded that “[f]or the first time in a long time, I’m happy with my supervisor and CWS [i.e., the appellant].”

In reply, the appointing authority states that the investigation found J.W. to be credible. Her highly detailed statement of her encounter with J.C. added significantly to the credibility of her account. She expressed even minute details, such as stating that J.C. was supposed to call them or J.M. but called the appellant instead. Further, it was not until W.S. filed grievances/complaints against the appellant that the retaliation and racialized comments suggesting that he “pulls the race card” occurred. In support, the appointing authority provides a copy of W.S.’s grievance dated October 31, 2023. The submission also reflects that a Step One grievance meeting was held January 23, 2024, and the Step One grievance decision denying the grievance was rendered March 4, 2024.

In response, the appellant complains that “[i]t appears that everyone else interviewed is being deemed credible by EEO/AA except me, but [she has] provided evidence to support [her] side as much as [she] possibly can.” She maintains she has never had a blemish on her record and only began to have complaints against her after having to have investigatory interviews with one worker, i.e., W.S. She states that prior to having these investigatory interviews, W.S. was in her tier for two years with no complaints, issues, or concerns. The appellant believes that the Commission’s not being provided all original interviews conducted in the EEO/AA investigation is a disservice to her because the Commission only has a summarization of the EEO/AA’s interpretation of the investigation. The appellant further believes the appointing authority’s determination is incorrect and states she does not understand how the Commission can make an informed decision without having all original interviews and evidence gathered during the investigation.

CONCLUSION

It is a violation of the State Policy to engage in any employment practice or procedure that treats an individual less favorably based upon any of the protected categories. See N.J.A.C. 4A:7-3.1(a)3. Under this policy, forms of employment 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. See N.J.A.C. 4A:7-3.1(a). Additionally, retaliation against any employee who alleges that she or he was the victim of discrimination/harassment, provides information in the course of an investigation into claims of discrimination/harassment in the workplace, or opposes a discriminatory practice, is prohibited by this policy. No employee bringing a complaint, providing information for an investigation, or testifying in any proceeding under this policy shall be subjected to adverse employment consequences based upon such involvement or be the subject of other retaliation. See N.J.A.C. 4A:7- 3.1(h). The State Policy is a zero tolerance policy. See N.J.A.C. 4A:7-3.1(a). Moreover, the appellant shall have the burden of proof in all discrimination appeals. See N.J.A.C. 4A:7-3.2(m)4.

Initially, discrimination appeals are treated as reviews of the written record. See N.J.S.A. 11A:2-6b. Hearings are granted in those limited instances where the Commission determines that a material and controlling dispute of fact exists that can only be resolved through a hearing. See N.J.A.C. 4A:2-1.1(d). For the reasons explained below, material disputes of fact exist that warrant granting a hearing at the Office of Administrative Law (OAL).

It has been alleged that the appellant retaliated against W.S. because, on January 25, 2024, the appellant shared protected equal employment opportunity- related information about W.S.’s previous grievances against the appellant with J.C.; that the appellant told J.C. that W.S. likes to “pull the race card;” and that J.C. treated W.S. poorly after the appellant shared this information about W.S. During the investigation, K.W. apparently indicated that J.C. explained to her that the appellant made J.C. aware of W.S.’s grievances against the appellant. However, this information had not been documented in the January 29, 2024 interoffice memorandum. Thus, a hearing at the OAL would allow an Administrative Law Judge (ALJ) to properly assess K.W.’s credibility. In addition and crucially, J.C., clearly a material witness to the events of January 25, 2024, was herself never interviewed. As the appointing authority did not address why this was so, the Commission is constrained to accept the appellant’s explanation that J.C. could not be interviewed because she is not a DCF employee. Thus, an OAL hearing would allow for J.C. to be called as a witness. However, if no party calls J.C. as a witness, the Commission authorizes the ALJ, pursuant to the ALJ’s powers under N.J.A.C. 1:1-14.6(n), to take J.C.’s testimony. See also, N.J.S.A. 11A:2-7. Similarly, material issues of fact exist with respect to the allegation that the appellant retaliated against W.S. by not answering his telephone calls when he needed assistance in the community and refusing to conference with him. In this regard, W.S. expressed that he was “happy” with the appellant in March 2023, and the appellant has provided evidence that they corresponded by phone and email in 2023. As to the appellant’s alleged July 2024 statement to the anonymous complainant, “I want no part of him, do whatever you want when it comes to him,” the appellant denied making the statement during the investigation and continues to deny making it in this proceeding. It appears from the record that there were no other witnesses to the conversation between the anonymous complainant and the appellant. Thus, the ALJ may properly assess the credibility of both the appellant and the anonymous complainant. Further, the record reflects that by July 2024, W.S. was no longer in the appellant’s tier and chain of command due to an earlier restructuring.

Accordingly, this matter should be referred to the OAL for a hearing to determine whether the appellant violated the State Policy.

ORDER

Therefore, it is ordered that this matter be referred to the OAL for a hearing as a contested case.