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In the Matter of Gloria

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


September 26, 2012

IN THE MATTER OF GLORIA T. GRANT, SECTION CHIEF, ENVIRONMENTAL PROTECTION (PS2371G), DEPARTMENT OF ENVIRONMENTAL PROTECTION.

On appeal from the New Jersey Civil Service Commission, Docket No. 2010-2836.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted January 10, 2012

Before Judges Simonelli and Hayden.

Petitioner Gloria Grant appeals from the October 8, 2010 final administrative action of the respondent New Jersey Civil Service Commission (Commission), which denied her request for reconsideration of the Commission's January 13, 2010 decision upholding the validity of a promotional examination. For the reasons that follow, we affirm.

Grant, who has worked at the respondent New Jersey Department of Environmental Protection (NJDEP) for over thirty years, submitted a position reclassification request for Section Chief, Waste Management variant, in 2002, which was denied in 2003. In 2006, however, NJDEP provisionally appointed Grant to the title, pending her taking the promotional examination, with a retroactive effective date of May 2002. The promotional examination for the title was not immediately announced after the provisional appointment because the Merit System Board (now the Commission)*fn1 ordered the Division of Human Resources to review the appropriateness of the job specifications and open competitive requirements for the Section Chief title in conjunction with NJDEP and to recommend any necessary modifications. This process was completed on August 1, 2008, which resulted in Grant's provisional appointment being changed from Section Chief, Waste Management to Section Chief, Environmental Protection.

The promotional examination for Section Chief, Environmental Protection was announced with a closing date of March 21, 2009. Sixteen employees took the examination, which consisted of a test known as the Supervisory Test Battery (STB).

Grant's score was 75.658 percent. She was awarded five points for her seniority, resulting in a final score of 80.66 and a ranking of seventh on the certification list.

Grant appealed to the Commission on July 17, 2009. She contended that the entire procedure, including the utilization of the STB as the sole criteria for the promotion, was significantly flawed. She alleged sixteen deficiencies in the examination process, including the failure to make the examination materials available for review; the subjectivity of the test questions; the delay in posting the examination, which made more employees eligible to take the examination; the failure to consider education and experience, including in the title position; the inappropriateness of the unit scope; and potential gender bias as a larger percentage of men scored above average in the examination. She requested a stay from the certification of the eligibility list and from permanent promotions from the list pending final disposition of her appeal.

On January 14, 2010, the Commission denied Grant's appeal. In a thorough and comprehensive opinion, the Commission found that the STB was appropriately used as the sole examination tool, as employees who take supervisory examinations have been tested sufficiently in prior positions for other important work characteristics not measured by the STB. The Commission also noted that it had considerable discretion under N.J.A.C. 4A:4-2.2 in determining appropriate test modes. Further, the Commission observed that the STB test questions and answers were developed by three teams of experts, totaling thirty people, who were proficient in the fields of supervision and management and who vetted the test for bias and faulty reasoning. The Commission also found the refusal to allow candidates to review test questions and answers was proper as the same test was reused the next year. The Commission also rejected Grant's argument that the delay in holding the examination obviated the need for holding an examination. The Commission found the delay, although unfortunate, was required due to the pending appeals of several other employees that necessitated the study of the Section Chief title.

Shortly thereafter, on January 30, 2010, NJDEP returned Grant to her permanent position of Supervising Environmental Specialist, with a loss of two years' seniority and a salary cut of nearly $10,000. Grant filed a request for reconsideration, which, on October 8, 2010, the Commission denied. The Commission found that Grant had not met the standard for reconsideration in N.J.A.C. 4A:2-1.6(b), as she did not demonstrate a clear material error or demonstrate the presence of new evidence or additional information that would change the outcome of the proceedings. The Commission reaffirmed the validity of the denial of Grant's original appeal, again noting that the use of the STB as the sole measure of success on the examination was appropriate and the delay in holding the examination was reasonable due to the massive reorganization that was not completed until 2008. This appeal followed.

In her appeal, Grant reiterates the arguments she made before the Commission, principally that the Commission improperly relied solely on the STB without giving her credit for her education and experience, included in the subject job title. She also argues that the test is subjective, the history of test results demonstrated gender bias, and the Commission should have acted timely on her reclassification request in 2002 so that she would have been duly appointed before the 2005 stay of the Section Chief examination. In addition, she contends that the Commission could have waived the examination or made a conditional regular appointment while her reclassification appeal was pending pursuant to N.J.A.C. 4A:4-1.4. She also maintains that the loss of seniority and resulting pay cut occurred without the requisite thirty-day notice in violation of N.J.S.A. 11A:4-16.

We begin by stating some well-settled principles that will guide our analysis. Generally, "[a]ppointments and promotions in the civil service of the State . . . shall be made according to merit and fitness to be ascertained, as far as practicable, by examination, which, as far as practicable, shall be competitive . . . ." N.J. Const. art. VII, § 1, ¶ 2. As a result of this mandate, the Civil Service Act, N.J.S.A. 11A:1-1 to 12-6, delegates broad power over all aspects of the career service to the Commission. See N.J.S.A. 11A:2-6, N.J.S.A. 11A:2-11. The Legislature has declared that the selection and advancement of state employees should be dependent on considerations of merit, N.J.S.A. 11A:1-2c, and determined on the basis of relative knowledge, skill and ability. N.J.S.A. 11A:1-2a. In order to satisfy the constitutional and statutory requirements, the Legislature has vested the Commission with broad power to "devise a fair, secure, merit-based testing process by which candidates are selected for employment and promotion." Brady v. Dep't of Pers., 149 N.J. 244, 254 (1997).

Our review of an administrative agency decision is quite limited. In re Stallworth, 208 N.J. 182, 194 (2011); In re Herrmann, 192 N.J. 19, 27 (2007). An administrative agency's determination is presumed to be correct and we will not substitute our own judgment of the facts for that of the agency if the agency's findings are supported by sufficient credible evidence and are not arbitrary, capricious or unreasonable. In re Carter, 191 N.J. 474, 482 (2007). The burden is on the party opposing the action to demonstrate grounds for reversal. McGowan v. N.J. State Parole Bd., 347 N.J. Super. 544, 563 (App. Div. 2002). Additionally, "'courts cannot intervene to nullify a civil service examination unless it is clearly shown that the Department has abused its discretion.'" Brady, supra, 149 N.J. at 257 (quoting Zicherman v. Dep't of Civil Serv., 40 N.J. 347, 350-51 (1963)).

Under the arbitrary and capricious standard, our scope of review is guided by three major inquiries: (1) whether the agency's decision conforms with relevant law; (2) whether the decision is supported by substantial credible evidence in the record; and (3) whether in applying the law to the facts, the agency clearly erred in reaching a result that was either arbitrary, capricious or unreasonable. Stallworth, supra, 208 N.J. at 194; Carter, supra, 191 N.J. at 482-83. When the agency decision meets the above criteria, we accord substantial deference to the agency's fact-finding and legal conclusions, being mindful of the agency's "'expertise and superior knowledge of a particular field.'" Circus Liquors, Inc. v. Middletown Twp., 199 N.J. 1, 10 (2009) (quoting Greenwood v. State Police Training Ctr., 127 N.J. 500, 513 (1992)). Accordingly, we will not substitute our own judgment for the agency's even though we might have reached a different result. Stallworth, supra, 208 N.J. at 194; Herrmann, supra, 192 N.J. at 28.

Guided by these principles, we discern no error in the final agency action that warrants our intervention. In our view, the Commission thoroughly considered the facts and arguments of law raised by Grant, and its decision was neither arbitrary, capricious or unreasonable, nor was it unsupported by the evidence in the record. We affirm substantially for the reasons set forth in the cogent decision of the Commission dated October 8, 2010. We find that Grant's arguments lack sufficient merit to warrant discussion in a written decision. R. 2:11-3(e)(1)(E). We add only the following brief comments.

We are satisfied that the Commission's determination that the STB test is appropriate is based upon substantial evidence in the record of the development and objectives of the test. Grant has presented no evidence to prove her claim that the test was subjective or gender-biased. Furthermore, the failure of an agency to give a timely Civil Service examination does not vest a provisional appointee with the right to obtain a permanent appointment, absent a showing of negligence or intentional misconduct. See O'Malley v. Dep't of Energy, 109 N.J. 309, 317 (1987). We find no such showing contained in the record here.

Affirmed.


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