Opinion
0113740/2007.
January 22, 2008.
DECISION and ORDER
Petitioner is employed by the New York City Transit Authority (City) as a as a bus operator. The New York City Department of Citiwide Administrative Services (DCAS) is the agency charged with administering civil service exams and establishing lists of eligible employees who passed those exams. In January, 2004, petitioner took a promotional exam for the position of "Dispatcher (Surface Transportation.)" The results of that exam were released on a certified list in March, 2006 and petitioner ranked number 72 on a list of 559 names. Petitioner expected to be promoted when his list number was reached, however, he has been advised by City that his promotion will not be approved due to his disciplinary record. He has now filed this Article 78 petition seeking an order from the court mandating that he be deemed eligible for promotion or, in the alternative, mandating that he be promoted or, remanding the matter back to City for further proceedings. Petitioner also seeks the costs, disbursements and attorney's fees associated with this proceeding.
Petitioner argues that his disciplinary record should not be a bar to his promotion. He states that there are other employees who have similar disciplinary records to his who have been promoted in spite of their records. Petitioner specifically names five others who he avers were promoted with disciplinary records that were the same of worse than his. Petitioner states that the source of his information regarding these other employees was a union delegate and his co-workers. He feels he is being treated unfairly and that there is no reason why others should receive better treatment than him. He argues that if an administrative agency (ails to adhere to its own precedents and reaches a different result when reviewing essentially the same facts, its actions are arbitrary. ( Matter of Lafayette Storage and Moving Corp., 77 NY2d 823). He argues that City's action in denying him a promotion is unreasonable, arbitrary, capricious and an abuse of discretion.
DCAS argues that it does not participate in any way in the decision making process with respect to which candidate is chosen from the eligible list. It explains that its role in the process is to provide City with an official list of names for their consideration. City must then comply with Civil Service Law § 61 in the selection of eligible candidates. After City considers and selects a candidate for a vacancy, it must then provide DCAS with an explanation regarding what action it took with respect to each name on the certified list.
City argues that it has adhered to both Civil Service Law and the Personnel Rules and Regulations of the City of New York when filling vacancies for the Dispatcher openings. It states that petitioner's allegation that five similarly situated applicants received promotions when he did not is pure speculation and simply not true. City provides documentation to prove that all five of the individuals named by petitioner had better disciplinary records than he did. Additionally, none of the five were close to petitioner in ranking on the promotional list, none was considered at the same time petitioner was considered and, therefore, their situations are not relevant to him and did not impact on his candidacy,
Civil Service Law § 61 states, in relevant part:
(1) Appointment or promotion from eligible lists. Appointment or promotion from an eligible list to a position in the competitive class shall be made by the selection of one of the three persons certified by the appropriate civil service commission as standing highest on such eligible list who are willing to accept such appointment or promotion . .,
The Personnel Rules and Regulations of the City of New York § 4.7.1(c) states, in relevant part:
Appointment or promotion from an established eligible list to a position in the competitive class shall be made by the selection of one of the three persons certified by the commissioner of citiwide administrative services . . . as standing highest on such established list who are qualified and willing to accept such appointment or promotion.
Together these provisions are known as the "one in three" rule. This rule enables a City agency that wishes to fill a vacancy from a promotional list of eligible candidates to consider a "cluster" of candidates, the next three highest ranked candidates on the list, and select the one it believes is best qualified. The promotional criteria is not merely an employee's rank on an eligible list but the extent of the candidate's disciplinary record, if any, is also considered. If a candidate is passed over during this "one in three" process, he will be considered again for the next two vacancies. If he is not chosen any of the three times that he is considered, his name is removed from consideration. A candidate for promotion may have his name restored to the list for consideration upon request.
A court may only interfere with the determination of an administrative agency if there is no rational basis or foundation in fact for the action complained of, and the exercise of discretion is arbitrary and capricious. Where a reviewing court finds that the administrative body has not acted arbitrarily but within its lawful authority, the court has no alternative but must confirm the determination. ( Matter of Pell v. Board of Educ., 34 NY2d 222. (1974)). The reviewing court may not substitute its judgment for that of the agency's determination but must decide if the agency's decision is supported on any reasonable basis. ( Matter of Clancy — Cullen Storage Co. v. Board of Elections of the City of New York, 98 A.D.2d 635,636 [1st Dept. 1983]). Once the court finds a rational basis exists for the agency's determination, its review is ended. ( Matter of Sullivan County Harness Racing Association, Inc. v. Glasser, 30 N.Y. 2d 269).
There is a strong presumption that, in the exercise of its discretion, an employer acted appropriately with respect to its employees. When determining if an employer acted inappropriately, the issue is whether the employer acted in bad faith or with an improper motive. The burden is on the employee to demonstrate bad faith or improper motive. ( Bourne v. New York City Transit Authority, 274 AD2d 581 [2nd Dept. 20001; Diaz v. Goldman, 225 AD2d 344 [1st Dept. 1996]). Mere speculation is insufficient to meet that burden. ( Cortijo v. Ward, 158 AD2d 345 [1st Dept. 19901). Additionally, use of the "one in three" rule has been repeatedly approved of by appellate courts to permit an agency to evaluate candidates in light of other relevant considerations as "examination success cannot reveal any possible defects . . . which may impair the performance of one's duties in a civil service position." ( Cassidy v. Municipal Civil Service Commission, 37 NY2d 526).
Here, petitioner was considered as one of three candidates on three separate occasions for appointment to a vacant Dispatcher position. Each time he was considered in a "cluster" of applicants in which the other applicants had no disciplinary actions brought against them within the last three years. In contrast, petitioner has had three disciplinary actions brought against him in the last three years, namely two reprimands and one five day suspension. Petitioner's notion that others with disciplinary records similar to his own have been promoted when he was not has been disproved by the documentary evidence provided by City. In conjunction with the "one in three" rule, city is permitted to evaluate a candidate for promotion in light of other relevant considerations, including the candidate's disciplinary record. City has the "power to choose a qualified appointee who possesses all the attributes necessary for the responsible performance of his duties." ( Cassidy v. Municipal Civil Service Commission, supra, at 529). It cannot be said that City's action denying promotion to petitioner was unreasonable, arbitrary, capricious or an abuse of discretion. Wherefore, it is hereby
ORDERED and ADJUDGED that the petition is denied and the proceeding is dismissed.
All other relief requested is denied.
This constitutes the decision and order of the court.