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April 5, 2011

Fitness for promotion

Fitness for promotion
Alston v City of New York, 270 AD2d 3

Sometimes an employee sues the appointing authority in an effort to secure a promotion. Alston, a New York City caseworker, complaining that he had been denied a promotion because of his earlier conviction for Federal mail fraud. Alston asked a Supreme Court justice to direct his agency, New York City’s Administration for Children’s Services, to promote him to a supervisory position. Alston’s theory: Children’s Services’ failure to promote him constituted a violation of Section 296.15 of the Executive Law (New York’s Civil Rights Law).*
The Appellate Division sustained the lower court’s dismissal of Alston’s petition on the grounds that the caseworker’s allegations concerning the reasons why he was denied the promotion -- conviction of a crime -- were speculative.

In contrast, the court noted that record “set out evidence of [Alston’s] mediocre performance as a caseworker and of [Alston’s] prior attempt to deceive ACS by seeking a medical leave when he had actually taken a job with another City agency.”

Further, the court said that it concluded that Alston’s mail fraud conviction, which involved his submission of false car service vouchers in connection with his employment as a caseworker, raises legitimate issues about his fitness for the supervisory position.

* Another element relevant to this case: Section 752 of New York’s Correction Law. Section 752, in general, prohibits an employer from considering an applicants’ conviction of a crime in making its employment decision.

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