Candidate's application for promotion denied under color of the agency's policy of denying promotion while disciplinary charges are pending against the applicant

The New York Metropolitan Transportation Authority [MTA], denied Plaintiff's applications for promotion to the rank of Lieutenant by personnel orders dated October 6, 2021, and October 26, 2022.

Supreme Court dismissed the CPLR Article 78 proceeding initiated by Plaintiff challenging MTA's denial of his applications for promotion and Plaintiff appealed. The Appellate Division unanimously affirmed the Supreme Court's ruling.

With respect to MTA's order denying Plaintiff's application seeking promotion dated October 6, 2021, the Appellate Division observed that Plaintiff's Article 78 petition was filed "well over four months after the October 6, 2021 personnel order" was issued and is "therefore time-barred as to that order".

Turning to the October 26, 2022 personnel order denying Plaintiff's application for promotion, the Appellate Division noted that the Metropolitan Transportation Authority Police Department [MTAPD]  had "demonstrated a rational basis for its decision not to promote", i.e., the fact that disciplinary charges were then pending against Plaintiff. Noting that "It is undisputed that disciplinary charges against [Petitioner] were pending at the time of the October 26, 2022 personnel order denying him a promotion", MTAPD's decision was consistent with the agency's "practice," according to the affidavit of its assistant chief in the Internal Affairs Bureau, "to not promote MTAPD members to the rank of lieutenant (or higher) while they have any disciplinary action pending."

Further, opined the Appellate Division, the fact that Petitioner "was ultimately cleared of the [disciplinary] charges does not make the [October 26, 2022] decision irrational", citing Kercado v Ward, 166 AD2d 280.

Dismissing Plaintiff's appeal, the Appellate Division observed "Petitioner's assertions that he was treated differently from other candidates, and that the MTAPD did not adhere to the collective bargaining agreement's deadlines for resolving disciplinary matters, are unsupported by the record".

Click HERE to access the Appellate Division's decision posted on the Internet.