NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued May 7, 2013
On appeal from the Civil Service Commission, CSC Docket No. 2011-3505.
Walter R. Bliss, Jr., argued the cause for appellant T.M.
Caroline Jones, Deputy Attorney General, argued the cause for respondent Civil Service Commission (Jeffrey S. Chiesa, Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Ms. Jones, on the brief).
Before Judges Yannotti and Harris.
Appellant T.M. appeals from the April 5, 2012 decision of the Civil Service Commission (the Commission), which upheld the determination of the Department of Education (the Department) finding T.M. in violation of the New Jersey State Policy Prohibiting Discrimination in the Workplace (the State Policy), N.J.A.C. 4A:7-3.1. Because the record reveals "material and controlling dispute[s] of fact . . . that can only be resolved by a hearing, " N.J.A.C. 4A:2-1.1(d), and no such hearing was conducted, we reverse and remand for further proceedings.
In November 2010, T.M. had been employed by the Department for eight years. Among his job duties was the improvement of educational opportunities for urban youth. In that month, T.M. volunteered to represent the Department at a college fair for high school students, which was to be conducted at a county community college.
On November 15, 2010, T.M. attended the event. At the close of the day's proceedings, an incident occurred that is the focus of this appeal. According to a November 17, 2010 handwritten statement authored by J.T., a college admissions representative in attendance,
[a]t the closing of the . . . College Fair, I was approach[ed] by a volunteer. . . . As me and my co-worker (O.A.) were packing up, . . . a man simply asked how the turnout was at the college fair to start small talk. The man told me to tell my co-worker to "get off her knees." I was unsure what he said at first so I asked him to repeat himself. He said[, ] "tell her to get off her knees, because she might stay that way." Then he walked off. I am not sure what he exactly meant by that but I do know it was not professional or appropriate! I haven't met this man or know anything about him. I just hope he knows he cannot say things like that to anybody. If he meant it in a "non-sexual" way, then he should have explained himself.
J.T. later confirmed this account in an interview with a representative of the Department, adding only that her co-worker O.A. was at the time "kneeling down putting material in our equipment bags" and did not overhear the encounter.
After J.T. told O.A. what happened, they reported the incident to their supervisor. Afterwards, the matter came to the attention of the sponsor of the college fair, and to several Department employees, including an EEO/Affirmative Action officer named M.W. On November 16, 2010, T.M. briefly spoke with J.B., a Department managerial supervisor, to initially discuss the matter. At that time, T.M. allegedly learned "that a formal complaint of a 'sexually harassing nature' had been leveled against him, " but no ...