In the Matter of Araceli Cabral, Financial Examiner 1 (PS8038L), Department of Banking and Insurance DOP Docket No. 2004-2568 (Merit System Board, decided August 11, 2004) Araceli Cabral appeals the validity of the promotional examination for Financial Examiner 1 (PS8038L), Department of Banking and Insurance. The subject promotional examination was conducted on December 11, 2003 utilizing the Supervisory Test Battery (STB). The STB utilizes 120 multiple-choice test questions that are presented to candidates on a computer concerning issues, tasks and situations associated with their role as a supervisor in a fictitious organization. Candidates are required to achieve a raw score of at least 56.6 in order to pass the examination with a percentage average score of 70. Ms. Cabral achieved a raw score of 54.8 and did not pass the examination. A total of 11 employees applied for the subject performance examination that resulted in an employment roster of 10 eligibles with an expiration date of January 21, 2006. It is noted that four eligibles were permanently appointed from the subject list. On appeal, Ms. Cabral argues that the test she took concentrated only on reading comprehension and speed reading, but did not include such other areas as spelling, vocabulary, technical skills, logic, and mathematics. Moreover, the appellant maintains that the examination did not include any job-related questions and was not versatile. As such, Ms. Cabral asserts that just passing this examination should not be enough for an individual to be promoted to Financial Examiner 1. Ms. Cabral also contends that English is not her primary language and that candidates whose primary language is English had an unfair advantage. 1 She explains that her reading comprehension is slow compared to those candidates whose primary language is English, but that given the time, she understands what she reads. The appellant also notes that performing her duties as a financial examiner requires report writing and interpreting or understanding instructions, policies, laws, and regulations. Further, Ms. Cabral asserts that it was difficult to keep track of how many more minutes she needed to answer the remaining number of questions and that during the last 25% of her test, she realized that she did not have enough time to finish, and started clicking 1 Ms. Cabral filed a complaint on this issue and regarding the validity of the examination with the Equal Employment Opportunity and Affirmative Action Office of the Department of Banking and Insurance. That Office referred these issues to the Department of Personnel. Based on the nature of Ms. Cabral s particular allegations regarding the examination, these issues will be addressed as part of this appeal. Ms. Cabral s examination record indicates that she is of Asian heritage.
without going through all of the questions. Although she finished with about five minutes left, the computer would not allow her to go back and review her answers. Had she been able to do so, Ms. Cabral maintains that she would have passed the test, as her score was only two points short of the required passing point. The appellant also presents that she passed the promotional examination for Financial Examiner 1 (PS5558L) which had a closing date of October 21, 1997 and ranked fourth on the employment roster. She states that one of the eligibles from that examination quit and that resulted in her being one of the top three eligibles. Notwithstanding her rank, Ms. Cabral states that the first two ranked eligibles and the sixth ranked eligible were promoted from this list. Further, she alleges that four other individuals were provisionally appointed to the Financial Examiner 1 title in March 2003, yet she was not promoted. In this regard, Ms. Cabral notes that she hesitated to file for the examination under appeal because she already passed the test in 1999 and was not promoted. In support of her appeal, Ms. Cabral provides her application for certification as a Certified Examiner-in-Charge (CEIC), a copy of an e-mail sent by Wayne Murphy, an Examiner, attesting to the appellant s performance, samples of the ratings of reports she completed as an Examiner-in-Charge, and copies of her performance ratings. CONCLUSION Initially, it is noted that the STB utilizes multiple-choice test questions that are presented to candidates on a computer concerning issues, tasks and situations associated with their role as a supervisor in a fictitious organization. It is designed to measure common supervisory skills and abilities such as Analysis and Judgment, Employee Evaluation and Development, Interpersonal Skills, Written Communication Skills, Leadership and Decision Making. The STB is the sole selection instrument administered unless it is determined that candidates for the announcement have not been tested or evaluated sufficiently in prior positions for other important worker characteristics not measured by this examination. Thus, although Ms. Cabral notes that she passed a prior written multiple-choice examination for the title in 1999, it has no bearing on her failure to achieve a passing score for the current test. Further, although she argues that the STB was not job-related, it was not designed to specifically evaluate the technical expertise specific to the Financial Examiner 1 title as it was determined that this area was sufficiently evaluated in prior positions. Indeed, in In the Matter of Salah ud-din Abdul-Nur (MSB, decided November 19, 2003), the appellant argued that it was inappropriate to examine multiple titles using the STB because each title is unique and
different. In that case, the Board noted that the STB is utilized to test all supervisory titles deemed appropriate by the Subject Matter Experts (SME s) and that N.J.A.C. 4A:4-2.2 provides considerable discretion to the Department of Personnel in the determination of appropriate test modes. In that case, the Board determined that the STB was the best mode for various supervisory level titles because the STB is designed to evaluate common supervisory skills in the SME-approved supervisory titles. Thus, the Board in Abdul-Nur reasoned that it was appropriate to examine candidates who applied for supervisory positions with different symbol numbers and titles utilizing the STB. As such, since technical expertise was not evaluated and the STB is now the sole selection instrument for primary and higher level supervisory titles, it was appropriate to utilize the STB for the Financial Examiner 1 examination. With respect to Ms. Cabral s extensive experience in the Financial Examiner title series and eligibility for such credentials as the CEIC, a candidate s experience and education were factored into the eligibility process, but not in the computation of his or her examination score. Regarding the mechanics of the examination, candidates are allotted approximately two and a half hours to take the examination on the computer. The questions and weighted answers to this examination were developed by SMEs, individuals proficient in the fields of supervision and management. Specifically, three teams of SMEs reviewed the questions and the weighted answers. The first team developed the weightings and the second and third teams reviewed the weightings previously assigned in order to ensure that the weightings were not the result of either faulty reasoning or were biased as a result of too small of an expert pool. A total of 30 SMEs participated in this process. As indicated earlier, the STB is designed to be used for primary and higher level supervisory titles. Additionally, any eligible list that is generated as a result of the STB has a duration of two years. The test score is banked for two years for possible future use. Specifically, candidates who apply and are determined eligible for an announcement involving another supervisory title some time within two years of the date of their initial examination will have their STB score applied for that announcement. However, candidates may retake the STB after one year in response to future announcements for which they may be eligible. If a candidate elects to take the STB after one year, the new score will be used even if it is lower than the one it replaces. The period for banking test scores begins on the day the initial STB examination is administered. The score will be applied as of the examination administration date of any future announcement to which a candidate is deemed eligible. Additionally, due to the reuse of this examination, no review of examination questions or keyed answers is permitted. See In the Matter of Supervisory Test Battery Lists (MSB, decided December 19, 2000).
With respect to Ms. Cabral s concerns regarding not being able to go back to review her answers, the computer is utilized for this examination and permits the candidate to get an instant score report immediately after completing the examination. Aside from the immediate feedback, the use of the computer also permits controlled presentation of the test material to the candidate and prevents subsequent questions from providing clues to the answers to previous questions. Due to this feature, candidates are not permitted to return to previously answered questions or to vary the order of the questions. The nature of the questions is frequently what would you do or what would you say, therefore, the context of the questions requires immediate action. Decisiveness has been identified in the job analysis as being important to the supervisor s job. As such, the examination requires candidates to be decisive when presented with situations. At the beginning of the examination, candidates are provided with background information relevant to the examination. The scenario is designed to provide a context in which supervisory skills are demonstrated. One of the packages of information that is given to the candidate is an inbasket consisting of materials that the candidate will have to address during the course of the examination. Candidates are given 50 minutes to review the contents of the packages prior to beginning the exam and once this time has elapsed, candidates are encouraged to move to the computer and begin the timed portion of the examination. Regarding her concerns about the timer, all candidates were informed that the test consisted of a total of 120 questions and that they would receive automatic messages on the computer when they completed 25%, 50% and 75% of the examination. Thus, when these messages are received, a candidate knows that he or she has 90, 60 and 30 questions remaining, respectively. A count-down timer is also present on the computer screen at all times so that candidates are always aware of the remaining time to finish the test. The countdown timer runs continuously and generally cannot be paused for any reason. This makes it possible for candidates to judge the pace by which they are moving through the test material. However, it is noted that the countdown timer can be paused by the monitor in specific situations where an accommodation has been requested and approved. By design, the STB is not a speed test, as Ms. Cabral alleges, with highly restrictive time limits. A candidate s sense of self-pace, using the parameters mentioned, appears to be more than adequate for budgeting one s time wisely. This is reflected by the fact that 92% - 93% of all candidates finish the examination. With respect to Ms. Cabral s assertion that just passing this test is not enough to warrant promotion to the Financial Examiner 1 title, N.J.A.C. 4A:4-2.2(a) charges the Commissioner of the Department of Personnel to
administer examinations for appointment in the competitive division of the career service, which may include performance tests, such as the STB. See also, In the Matter of Jennifer Napoli (MSB, decided February 25, 2004) (All prospective candidates for State employment are required to be determined eligible for and pass a competitive examination and be certified in order to be considered for permanent employment in the competitive division of the career service). As Ms. Cabral points out, employment decisions are not solely based on an individual s score on a promotional examination. Merit System rules and procedures contemplate appointing authority discretion in the selection process through the rule of three. See N.J.S.A. 11A:4-8 and N.J.A.C. 4A:4-4.8(a)3. Additionally, appointing authorities are not precluded by Merit System rule or law from considering additional experience and education in the interview process in order to select the most qualified candidate. Ms. Cabral maintains that since English is not her primary language, she is slow in reading as compared to native born citizens whose primary language is English, and that this gave those candidates an advantage in the examination. As indicated earlier, after an extensive job analysis in support of this examination, the SMEs determined that the areas tested were required to successfully perform the duties of supervision. Thus, although English is not the appellant s first language, Department of Personnel examinations are written at a level of English consistent with the title under test. In this regard, it is noted that all titles tested in State service, including those in the professional level Financial Examiner title series, list as a requirement the ability to read, write, speak, understand, and communicate in English sufficiently to perform the duties of the position. As such, candidates are tested in the basic skills and the ability to read English is a requirement of the position. See In the Matter of Fayez Y. Fanik (MSB, decided April 10, 2002) and In the Matter of Rafael DiStasio (MSB, decided September 25, 2002). Moreover, the appellant has failed to establish that she was discriminated against by the Department of Personnel s use of the STB as the testing mode. Ms. Cabral states that even though she ranked fourth on the promotional examination for Financial Examiner 1 (PS5558L), she was not appointed while other candidates who ranked lower than she were appointed. It is noted that a review of the record does not demonstrate that Ms. Cabral ever appealed the fact that she was bypassed by a lower ranked eligible at the time the appointment was made from the PS5558L list. As such, her appeal of this matter in conjunction with her appeal of the validity of the subsequent promotional examination for the same title is untimely and should be dismissed on those grounds. Nevertheless, a review of the record does not demonstrate any error in the application of the rule of three. See
N.J.A.C. 4A:4-4.2(c). Initially, it is noted that individuals whose names merely appear on a list do not have a vested right to appointment. See In re Crowley, 193 N.J. Super. 197 (App. Div. 1984), Shroeder v. Kiss, 74 N.J. Super. 229 (App. Div. 1962). The only interest that results from placement on an eligible list is that the candidate will be considered for an applicable position so long as the eligible list remains in force. See Nunan v. Department of Personnel, 244 N.J. Super. 494 (App. Div. 1990). In the matter at hand, the first ranked eligible was appointed in June 1999 and the third ranked eligible was appointed in March 2000. The second ranked eligible left State service in March 2001. Thus, when the sixth ranked eligible was appointed in April 2001, the employment roster only contained the names of three eligibles. As such, the appointments were made consistent with the controlling regulatory provision. A thorough review of all material presented indicates that the determination of the Division of Selection Services is amply supported by the record and that the appellant has not supported her burden of proof in this matter. ORDER Therefore, it is ordered that this appeal be denied. This is the final administrative determination in this matter. Any further review should be pursued in a judicial forum.