Schorr & Associates’ Employment Case of The Week ending February 12, 2016

By Alan Schorr

In re J.L., 2016 N.J. Super. Unpub.  LEXIS 292 (App. Div., February 10, 2016)

It has become all too common recently for employers, fearful of litigation, to give undue credit to complaints of discrimination and harassment and therefore to take punitive action against the target of the complaint without fully and properly investigating the charges.  It is understandable that an employer might just find it easier, safer, and cheaper to get rid of the employee rather than to fully investigate.  After all, even if the employer is comfortable that the complaint is unfounded, the employer can still find itself sued by the complainant.

In this case, a public employee, J.L., was a grounds worker at Kean University.  Two of J.L.’s co-workers complained to Kean officials that J.L. had made derogatory comments about their national origin. Kean’s Office of Affirmative Action Programs initiated an investigation using an independent consultant to conduct the investigation. The investigation concluded that it was “more likely than not” that J.L. had made “comments/remarks and engaged in behavior in violation of the [State Policy].”  J.L. was never advised as to what comments or actions he was alleged to have made or taken.  The letter only stated:

Conduct reported during the investigation that was attributed to you included comments to Hispanic employees about their English speaking skills. . . . During the investigation it was also reported that you engaged in conduct towards employees that demonstrated a lack of professionalism and questionable judgment.

As a result of this finding, J.L. was ordered to undergo remedial training on State Policy.  Although there was no suspension, termination, or demotion, J.L. was adamant that he did not do any of the things he was accused of.  He appealed to the Civil Service Commission, denying all allegations.  The Commission decided the matter solely on the papers.  Kean did not provide the investigation to the Commission, only a letter from their attorney.  Reasoning that the employer conducted an investigation, the Commission ruled that no hearing was necessary because there were “no issues of material fact”.  J.L. appealed to the Superior Court Appellate Division.

The Appellate Division reversed.  The Court ruled that J.L. was never given a proper hearing, that the investigation was poorly done, and that J.L. was never given a chance to address the accusations.  The Court found that the facts were clearly disputed and that the Commission did not have a reasonable basis to conclude that the matter was undisputed.  Since the Commission’s reliance upon the written record was a “mistaken exercise of discretion”, the Court remanded with an order to conduct a plenary hearing.

Most employees will not be willing to endure the expense of an Appellate Division appeal for an order to undergo remedial training.  Nevertheless, the Courts are not hesitating to reverse actions by Commissioners where the employees were not provided due process.  It is also important to note that this case would have been even harder, although not impossible, had this been a private employee.  There have been some successful cases, though none published, where an employee accused of discrimination has sued the employer for discriminating against the employee because the employer automatically credited a complaint without proper investigation.  Until there is a published opinion, cases like this will help support the right to a fair investigation and hearing.

Attorneys for Employee/Appellant : Steven J. Kaflowitz, Caruso Smith Pacini, PC.

Attorneys for respondent New Jersey Civil Service Commission: Pamela N. Ullman, DAG.

Attorney for Kean University: Melissa H. Raska, DAG; Angela L. Velez, DAG.

Appellate Judges:  Kennedy and Gilson.  (Per curiam).